In a recent case, we had that happen. Unlike uniformed defense counsel, we immediately filed a Writ of Mandamus and Prohibition to prevent the second trial. In Murillo, the Navy-Marine Corps Court of Criminal Appeals has agreed that (1) the court has jurisdiction to hear a Writ petition on this issue and (2) the military judge erred in declaring a mistrial. Thus, the court has dismissed the charges. (As of 5 Feb., we do have to wait to see if the prosecution will appeal that decision.)

The Double Jeopardy Clause‘s whole concept is to protect the accused from a second or subsequent trial on the same charges. The trial itself is what is prohibited. The case is United States v. Murillo, No. 202200132 (N-M Ct. Crim. App. Feb. 3, 2023) (unpub.). The Double Jeopardy Clause is in the Fifth Amendment to the US Constitution, which says, “No person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb . . . . ” The bar against double jeopardy comes from English common law, possibly from Roman law. See F. Ward, Double Jeopardy Clause of the Fifth Amendment. 26 Am. Crim. L. Rev. 1477 (1989). Ward points out that a double jeopardy challenge can be waived by a pretrial agreement because of a Supreme Court decision in United States v. Broce. The author suggests that the military judge should include in their inquiry about whether a waiver is knowing and intentional and whether the defendant understands that waiving the right to trial as part of a plea agreement is also waiving the double jeopardy claim.

Unfortunately, the military lawyers in the Cabrera case did not do what we would have done. In Cabrera, the military defense counsel properly objected to the second trial but then allowed the second trial to continue without taking any further action to protect his constitutional right to be protected from double jeopardy. They should have filed a Writ and Motion for a Stay of Proceedings pending the resolution of the Writ Petition. That’s what we did in Murillo. Cabrera was convicted and sentenced to confinement. It was on appeal, years later, that the issue of Double Jeopardy was decided in his favor and the charges dismissed. While that decision was being made, Cabrera was in confinement for several years. The case is United States v. Cabrera, __ M.J. ___, 2023 CCA LEXIS 37 (N-M Ct. Crim. App. 2023). See also United States v. Cabrera, 80 M.J. 374 (C.A.A.F. 2020); United States v. Cabrera, No. 201800327, 2020 CCA LEXIS 155 (N-M Ct. Crim. App. May 12, 2020). (As of 5 Feb., we do have to wait to see if the prosecution will appeal that decision.)

NOTE: The Double Jeopardy Clause does NOT prohibit the state and the military from prosecuting you for the same offense(s). This concept comes from the Dual Sovereign Doctrine.

Should you be facing court-martial and the charges are dismissed during the trial, please contact us to discuss your options if there is a potential that the prosecution will make a second attempt to prosecute you on the same charges.

mljucmj@court-martial.com for related appellate issues nathan.freeburg@freeburglitigation.com for representation in a second trial

We know that one of the reasons–motives–or as psychologists say “the secondary gain,” is to protect a marriage or relationship.

We know that some women are like men, they cheat on their spouse.

Yet investigators often ignore these knowns–in following orders to believe the “victim” and through confirmation bias.

Yet some persistent in denying this happens and presume guilt and follow confirmation bias to the desired conclusion.

Occasionally, the truth comes out. Thus this release from the federal prosecutors in Virginia.

A Chesapeake woman pleaded guilty today to lying to Naval Criminal Investigative Service (NCIS) investigators about an alleged sexual assault that occurred aboard Naval Station Norfolk. According to court documents, in July 2018 Miranda H. Overton, 21, made a report to NCIS alleging that an active duty Navy sailor sexually assaulted her. After opening an investigation into the alleged assault, the alleged perpetrator was interviewed, and he explained that he had consensual sex with Overton after they met on an online dating application. Investigators then obtained surveillance video from the day of the alleged assault revealing that Overton and the sailor kissed in the elevator immediately prior to the alleged assault. Furthermore, investigators obtained Overton’s statement during her sexual assault forensic examination where she admitted that prior to meeting with alleged perpetrator they agreed to have sexual intercourse. Investigators subsequently interviewed Overton a second time during which she admitted her allegation was false and had made another false allegation in the past. Overton admitted that she fabricated the allegation out of fear that her significant other would end their relationship if the significant other became aware that Overton had sex with the sailor. (Emphasis added.)

The statement of facts submitted to the court is available on PACER and contains additional facts of importance.

Woman-pleads-guilty-false-statement-regarding-sexual-assault[.]

• Get the SANE exam. There is quite a bit of possible information in the report valuable for defense.
• Get the CCTV or other video. You may be lucky.

When you object to something you are asking that the members not hear a piece of testimony or see a piece of evidence–right? Right?

So why then do you let the Trial Counsel (or defense counsel) discuss that with the military judge in front of the members? I see this on a regular basis as I read records of trial–I’m reading one now where there was three pages worth of discussion in front of the members. Yes it’s a hassle to excuse the members and the witness while you have a discussion about admissibility.

So, by letting this happen you allowed members to hear the objected to testimony, then they got to hear the TC explain (argue to them) why it was relevant and necessary, and they got to hear you why it was prejudicial.

So, if the MJ overrules the objection, maybe less of a problem. But what if the MJ sustains the objection???? The members have just heard the testimony, been told why it proves guilt, and told to forget it>?>?>?>

1) For anyone representing a client with Art. 120, offenses that will trigger a Dismissal or DD upon conviction; or 2) Anyone representing a client where there may be a chance of being sentenced to a Dismissal or DD; To avoid an ineffective assistance of counsel claim, such as in Padilla v. Kentucky, please ensure (especially for those supervising line Defense Counsel) that the defense attorney advises the client of a mandatory, and thus ‘direct’ consequence of such a sentence, viz., a federal felony, especially if they are avid hunters, target shooters, skeet shooters, etc., they cannot possess firearms or ammunition!

_____________________________ 18 U.S.C. § 922:

(g) It shall be unlawful for any person—

* * * * *

6) who has been discharged from the Armed Forces under dishonorable conditions;

* * * * *

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce. ______________________

Needless to say, I’m working on a case where [client] got a DD over 14 years ago, who has been a hunter all of his life – at least until now – when he went to buy a new shotgun for next Fall’s deer season, popped up on the background check as being “ineligible” to possess. While they didn’t sell him that firearm, ATF showed up at his house a few days later and asked if he had “any firearms” in the house, and he dutifully showed them his 2 shotguns, and 3 rifles [along with @ 200 rounds of ammo], which he surrendered in lieu of arrest. The US Attorney’s Office is not pressing this as they’re not interested in adding to Padilla and its progeny, and (at least for now) is looking to simply forfeit the confiscated weapons.

Of course there’s nothing in the RoT remotely discussing this mandatory prohibition, so add it to the stuff you advise clients. As an aside, I think it fair game to get the Court to judicially note the above statute as a mandatory consequence of a Dismissal or DD, and if the discharge isn’t mandatory especially to argue for no more than a BCD if that.

Be advised.

https://www.armfor.uscourts.gov/newcaaf/opinions/2018OctTerm/180372.pdf,

just decided by the U. S. Court of Appeals for the Armed Forces.

In Voorhees, the trial counsel (prosecutor) tried to establish his bona fides with the court members during voir dire. Which lead the Court to say:

Despite his self-described expertise, trial counsel’s findings and rebuttal arguments were riddled with egregious misconduct, much of which amounted to clear, obvious error. We are most concerned with trial counsel’s: (1) personal attacks on defense counsel; (2) personal attacks on Appellant; and (3) expressing personal opinions, bolstering, and vouching. We address each in turn (which the Court did). First, trial counsel accused defense counsel of “misplaced lying,” and made the defense theory of the case seem fantastical, saying “defense counsel’s imagination is not reasonable doubt.” Both statements amount to clear, obvious error.

A reasonable observer must ask, why did the prosecutor not know that and refrain from such conduct. (Note that it’s unusual for the appellate courts to name the trial counsel.) Later the Court quotes some of the language used during argument concluding, again, that “These statements are all clear and obvious error.”

Regardless, the Court said, “Although trial counsel’s misconduct amounted to grievous error,” they were not prejudicial because the evidence against the accused was overwhelming, the defense counsel didn’t object, and the trial judge did not sua sponte object and caution the trial counsel. So, the conviction was affirmed. The Court observed that,

Although the law precludes us from finding plain error, trial counsel’s performance in this case was not one we would expect from any lawyer, let alone a “senior” trial counsel. . . . Trial counsel, however, was not the sole attorney at fault during Appellant’s court-martial. As we admonished in Andrews, “Military judges are neither mere figurehead[s] nor are they umpire[s] in a contest between the Government and accused;” they too have a “sua sponte duty to [e]nsure that an accused receives a fair trial.” 77 M.J. at 403–04 (alterations in original) (internal quotation marks omitted) (citations omitted). The military judge in Appellant’s case simply allowed trial counsel to ramble on with his improper argument. Similarly, although defense counsel’s failure to object appears to have been a conscious and tactical choice in the instant case, we remind all defense counsel they “owe[s] a duty to the[ir] client[s] to object to improper arguments early and often.” Id. at 404. . . . This case aside, the consistent flow of improper argument appeals to our Court suggests that those in supervisory positions overseeing junior judge advocates are, whether intentionally or not, condoning this type of conduct. As superior officers, these individuals should remind their subordinate judge advocates of the importance of the prosecutor’s role within the military justice system and should counsel them to “seek justice, not merely to convict.” . . . Although the law precludes us from finding plain error, trial counsel’s performance in this case was not one we would expect from any lawyer, let alone a “senior” trial counsel.

On appeal to AFCCA that court set aside the finding of guilty to sexual assault, leaving an Article 133 conviction in place. The court remanded for a new sentencing hearing, after which the case went back to AFCCA and then to CAAF.

On initial appeal.

https://afcca.law.af.mil/afcca_opinions/cp/voorhees-38836.u_corrected_copy.pdf

After the sentence rehearing.

https://afcca.law.af.mil/content/afcca_opinions/cp/voorhees_-_38836reh.u.pdf

Sure command and others will say you are going to get a fair hearing and trial, but that’s not reality.

Over 100 Law Professors, Others Call on DOJ to Stop Junk-Science ‘Victim-Centered’ Methods

WASHINGTON / May 23, 2019 – Over 100 law professors, practicing attorneys, scholars, and concerned citizens have endorsed a petition calling on the Department of Justice to promptly cease its support for guilt-presuming investigations. Commonly known as “victim-centered,” such methods vitiate notions of fairness and investigative impartiality and contribute to the problem of wrongful convictions.

“Victim-centered” methods such as Start By Believing advise investigators to start with a presumption of guilt, seek to “corroborate the victim’s account,” and write their reports using the “language of non-consensual sex.” (1) Such approaches violate ethical codes that require investigators to “present such evidence impartially and without malice.” (2)

Another “victim-centered” method is known as “trauma-informed,” which posits the cognitive effects on persons experiencing traumatic events. But experts have dismissed such notions as “psychiatric folklore,” lacking scientific verification, and even as “junk science.” (3)

Victim-centered methods have been discredited by a number of groups. The Air Force Office of Special Investigations found such methods to be “inappropriate and irresponsible.” (4) In 2015 the Arizona Governor’s Commission to Prevent Violence Against Women issued a letter saying Start by Believing “creates the possibility of real or perceived confirmation bias” and “strongly cautioned” state law enforcement agencies from using Start By Believing. (5)

The petition demands that the Department of Justice “promptly suspend its support for programs that call on detectives and investigators to reject their most basic of principles of fairness and that threaten to unravel the very fabric of our nation’s justice system.”

Journalist Emily Yoffe has termed victim-centered theories “junk science” because of their lack of scientific support and the circular logic they utilize. (6) Additional information is available in the CPI White Paper, ‘Believe the Victim:’ The Transformation of Justice. (7)

Links available here:

http://www.prosecutorintegrity.org/pr/over-100-law-professors-others-call-on-doj-to-stop-junk-science-victim-centered-methods/

This means, as a rule, you must prove your innocence.

United States v. Gurfein, NMCCA 2019, is an example of why speaking objections are improper and can cause problems. I have had trial cases where I’ve had to cut trial counsel off from making a speaking objection in front of members. I have appellate cases where the counsel and military judge engaged in a discussion of the objection (sometimes lengthy and detailed) in front of the members–this is improper.

Defense counsel–shut trial counsel down when they make speaking objections in front of members. I know judges want to save time and not inconvenience members, but you have a client who may be adversely affected by what they hear.

Here’s the problem in Gurfein.

• The defense counsel’s objection before members, “[n]o child pornography was found anywhere on any of Major Gurfein’s electronics,” although literally true, was misleading because it implied that all the appellant’s electronic media had actually been searched for child pornography and none was found.
• Trial counsel’s response, “that’s not entirely accurate,” was also misleading because it implied that child pornography had been found on the appellant’s electronics.
• The defense counsel’s subsequent statement, “The electronics were with CID and no child pornography was found during their search,” simply doubled down on his initial misleading statement.

So, both at fault.

• Under the invited reply doctrine, a trial counsel may fairly respond to a claim made by the defense. United States v. Carter, 61 M.J. 30, 33 (C.A.A.F. 2005). Or vice versa. Trial defense counsel’s speaking objection invited such a reply, but the reply had to be fair, even if the defense claim was not.
• We find that the trial counsel’s statements, “That’s not entirely accurate,” and “that’s not an accurate statement,” were unfair because they were misleading. There was no evidence of child pornography in appellant’s case. As the trial counsel explained to the military judge in the subsequent Article 39(a) session, his intended point was that not all of the appellant’s electronic media had been searched by law enforcement and so it was misleading for the trial defense counsel to imply that it had been searched and nothing had been found.

None of this back-and-forth should have been conducted in front of the members. The defense counsel should not have made a speaking objection in front of the members in an effort to introduce evidence, even though true[.] And trial counsel undoubtedly erred in responding to the speaking objection with such a misleading statement.

Both trial counsel and trial defense counsel bear some measure of responsibility for this situation. The defense counsel recognized his error when he acknowledged that he was “wrong” and that the trial counsel’s response was “partly . . . my own fault in the speaking objection.”

What does an appellate court have to do?

Having found that the trial counsel’s response was improper, we must next determine whether his response was so prejudicial “that we cannot be confident that the members convicted the appellant on the basis of the evidence alone.” United States v. Hornback, 73 M.J. 155, 160 (C.A.A.F. 2014). We look at “the overall effect of counsel’s conduct on the trial, and not counsel’s personal blameworthiness.” United States v. Thompkins, 58 M.J. 43, 47 (C.A.A.F. 2003).

Note the reference to Thompkins. I’ve used that case in other situations, for example, discovery issues, for the proposition that it’s not the degree of fault but the effect of the fault. Of course, it does help if you have evidence the trial counsel’s error was knowing and deliberate.

(1) the recorded statement contains matters of which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately; (2) the recorded statement was made or adopted by the witness when the matter was fresh in the witness’s memory; and, (3) the recorded statement correctly reflects that knowledge.

The problem was failing the “The burden of proving that notes reflect a witness’s own words rather than the note taker’s characterization falls on the party seeking to introduce the notes.” United States v. Almonte, 956 F.2d 27, 29 (2d Cir. 1992) (per curiam).

“[A] ‘third party’s characterization’ of a witness’s statement does not constitute a prior statement of that witness unless the witness has subscribed to that characterization.” When a witness’s statement is recorded by another, both the witness and the one transcribing the statement must testify as to the accuracy of the report “to establish that the statement is the witness’s past recollection recorded under Rule 803(5).”

Slip op. at 6 (citations omitted). The prosecution successfully met the first two checks, the problem being the third.

The third prong of the test demands the memorandum or record correctly reflect the witness’s knowledge. While there is no requirement the record itself be true and correct, there must be evidence that a witness intended to provide a true account of the events. See, e.g., Williams, 951 F.2d at 858 (“The person who witnessed the event must testify to the accuracy of his oral report to the person who recorded the statement.”) Here, there is no evidence VL affirmed that she had provided a true account. VL did not sign a statement indicating the statement was accurate, nor did she testify that it was so.

There were other infirmities in the way the prosecution went about presenting the evidence all of which were insufficient.

Any and all adverse or negative information contained in the personnel files of any federal or state law enforcement agent who may have worked on this case in any manner. This includes but is not limited to Any “on-the-job” or field training records, training test score results, evidence of credentials having ever been suspended or revoked. The defense does not agree that United States v. Henthorn sets the appropriate standard of production on this issue. In fact some years ago, counsel had a case where the NCIS gave a Henthorn disclosure to the prosecutor that turned out to be substantially and materially false—which surprised the trial counsel at trial.

We can expand the initial request as more information comes to light. I encourage counsel to review United States v. Roberts, 59 M.J. 323 (C.A.A.F. 2004).

In my view, the MCIOs (and trial counsel) do not comply with the law–let’s use Roberts as an example.

During an interview with defense counsel prior to trial, the lead AFOSI agent, SA M, revealed that he had previously been disciplined, but declined to provide any details. Defense counsel subsequently requested that the Government provide the defense with copies of all disciplinary actions taken against SA M. A Government attorney-adviser at AFOSI replied in a memorandum that he had reviewed records including those maintained on SA M, and found no information that had to be disclosed. The attorney-adviser further stated that his review of the SA M investigation “did not reveal that SA [M] lied or falsely testified about the matter.”

Huuum. Well, the MJ did the right thing and conducted an in-camera review, but denied the discovery–wrong.

The military judge reviewed the records concerning the investigation of SA M in camera. The information provided to the military judge revealed that approximately three years before Roberts’ court-martial, while SA M was at a training course, he had sexual intercourse with another married AFOSI member. The AFOSI investigative report of that incident contains a summary of an interview with SA M on February 13, 1997, in which he reportedly was given a rights advisement, and initially stated, “This is bullshit. There is no improper relationship,” before he stopped talking. SA M was subsequently given testimonial immunity and admitted to the intercourse with the married AFOSI member in a sworn statement. He was not criminally charged, but he did receive an Unfavorable Information File.

I ask you, how many of your clients have been prosecuted for this type of exchange during an interrogation? But that’s OK if an OSI agent. Don’t you wish your client could get the same break? I am continually surprised by the crimes MCIO agents commit and yet remain in the military and remain with the MCIO.

My suggestion is that Roberts controls and not Henthorn. Unlike federal courts, we have a broader discovery right despite the attempts of Congress, IMHO, to take away discovery mechanisms.

Whether you have DNA or not–whether you are trial counsel or defense counsel–gathering non-DNA evidence can be vital to your case.

Complaining witness says she and accused were at a bar drinking and the accused later took advantage of her because she was drunk. OK, where are the bar receipts? No, the MCIO is unlikely to ask and by the time the defense comes on board the register receipts may not be available. Note, I have had several cases where the client has been saved by going to the bar with his credit card and getting the receipts. The receipt tells you a number of things: time paid (possibly related to time left the bar when paying the tab), (depending on the software) the number and type of drinks (huuum…four people in the party, four drinks, and just how many did the CW really drink?) Or, how about the video from the base entry point when the CW walks or drives or is driven on base? Is it possible the video helps show how unintoxicated the CW was or wasn’t? CCTV? Remember, the MCIO doesn’t usually care about this stuff.

“To many this would seem a clear-cut case of sexual assault [especially if ordered to believe the victim]. However, a case is not determined [except in the military] on what one believes, but by what the investigation shows and that can be proved [lordy, lordy].”

Hello!

So what really happened that evening? In a case like this of “he said, she said,” investigators look to the forensic evidence to help them piece together what may have actually happened. The investigation and exploration of the totality of the evidence collected are critical to unravelling the allegations and discerning whether charges can be filed. Therefore, when DNA is not available or not probative, other forensic evidence can help establish the facts. The most important take-away is that a case should be developed using the totality of the evidence. (Cleaned up.)

W-T-R: Sexual Assault Cases: Exploring the Importance of Non-DNA Forensic Evidence. National Institute of Justice Journal, Issue No. 279.

The accused pleaded guilty to the possession and distribution of child pornography. On sentencing, as we often see in these cases, the prosecution introduced unsworn statements of the victims, all of which predated the accused’s date of offenses. For those who haven’t been exposed to these statements, generally, they review the abuse that occurred at the time the video or image was taken and the subsequent life and health effects on the victim. We know that courts allow such information because of the idea that a victim is re-victimized each time a person views or distributes the images–it’s essentially an ongoing crime. Slip op. at 7-8.

I think there are several takeaways for practitioners.

1. If a victim testifies in sentencing, that testimony is subject to all the rules of evidence and R.C.M. 1001, which include Mil. R. Evid. 403. The testimony is evidence “directly relating to or resulting from the offenses,” under R.C.M. 1001(b)(4).
2. If the victim does not testify and provides an oral or written impact statement, the statement is not subject to the rules of evidence, only R.C.M. 1001, because it is not evidence, similar to the accused’s unsworn statement. Slip op. at 5, 9, United States v. Provost, 32 M.J. 98 (C.M.A. 1991), but see the dissent. The information is provided pursuant to Article 6b, UCMJ, and R.C.M. 1001A. Keep in mind there are already some limitations on what an accused can say in an unsworn (e.g. sex offender registration), so why should there not be limits on a victim? Does the military judge have to instruct members to disregard parts of a victim unsworn?
3. Trial counsel, defense counsel, and the military judge need to be very clear on what legal basis a victim input is given to ensure the proper consideration at trial and on appeal.

So, the Trial-Craft point.

Trial practitioners must recognize the distinction between evidence offered and admitted during presentencing by the prosecution and defense under R.C.M. 1001 and victim impact statements offered under R.C.M. 1001A. The victim “shall be called by the court-martial” as their right to be heard is “independent of whether they testify during findings or are called to testify under R.C.M. 1001.” R.C.M. 1001A(a) (emphasis added). We reemphasize that R.C.M. 1001(a) was modified when R.C.M. 1001A was added, and that it now establishes a general sequence of presentencing matters. Specifically, the prosecution starts by providing service data and personal data relating to the accused and the character of his or her prior service (taken from the charge sheet and personnel records), evidence of prior convictions, evidence of aggravation, and evidence of rehabilitative potential. R.C.M. 1001(a)(1)(A). The prosecution’s sentencing case is followed by the victim’s right to be reasonably heard pursuant to R.C.M. 1001A. R.C.M. 1001(a)(1)(B). Finally, the defense presents evidence in extenuation or mitigation. R.C.M. 1001(a)(1)(C). This change is noteworthy because it recognizes there are three distinct categories of matters that may be presented during presentencing. It is critical that all practitioners are familiar with the specific authority for and process by which to offer each type. In this case, the unsworn victim impact statements were marked, offered, and admitted as prosecution exhibits. This was an error. We recommend these types of exhibits be marked as court exhibits in accordance with the Uniform Rules of Military Practice Before Air Force Courts-Martial, Rule 7.1(C) (1 Jan. 2017). Finally, counsel and trial judges must ensure that the specific authority relied upon for the offer of unsworn victim impact statements is clearly reflected in the transcript. As this opinion has demonstrated, the inadvertent inclusion or omission of a lower case or upper case “A” after R.C.M. 1001 impacts appellate review.

Judge Harding concurs and dissents in part and is joined by Drew, C.J., and Mink, and says:

The right of victim allocution is not, however, without reasonable limitations on the content of those statements and nothing in Article 6b or R.C.M. 1001A suggests the victim’s right to be heard is beyond the scope of the procedural and evidentiary rules of presentencing. In fact, R.C.M. 1001A is silent as to whether the Military Rules of Evidence apply. The majority, by holding “that unsworn victim impact statements offered pursuant to R.C.M. 1001A are not evidence,” finds the rules of evidence inapplicable. The rules, however, are silent as to whether a victim statement introduced under R.C.M. 1001A, sworn or unsworn, is “evidence” and I disagree that a plain reading of the rules shows them not to be evidence. .

Slip op. at 14. The dissenters would apply the rules of evidence even to information provided under R.C.M. 1001A. I expect we will hear from CAAF about this case and its analysis and application of R.C.M. 1001A.

During presentencing testimony, the military judge asked BI, “You never moved away or pushed away from the hand; it stopped voluntarily?” (R. at 129.) She answered, “I did push his hand away.” (Id.) During closing argument, defense counsel requested that the military judge not consider that testimony, as it conflicted with the stipulation of fact.

The CGCCA decided that the information did not contradict the stipulation of fact and was, likely, more of the facts and circumstances surrounding the offense to which the appellant pleaded guilty.

Testimony may go beyond the stipulation of fact without consequence, so long as providence is not undermined, unless there is an agreement not to introduce such evidence. See United States v. Terlep, 57 M.J. 344, 348 (C.A.A.F. 2002).

I anticipate this to become a more common issue at sentencing in sexual assault-related cases. It is not uncommon for a negotiated pretrial agreement in sexual assault cases where the accused is willing to plead guilty to assault and battery but not a sexual assault, and where the accused is not willing to sign a stipulation of fact which acknowledges a sexual assault. An assault and battery plea like this is not normally a sex offender registration eligible offense. However, the prosecution then wants to present the full facts and circumstances of the assault to show how aggravated the assault and battery is. The aggravation usually comes up through the victim’s unsworn statement. There is no error here because of Terlep. What the defense needs to do, if possible, during negotiations, is have an agreement not to present that additional information.

(A) An order or ruling of the military judge which terminates the proceedings with respect to a charge or specification.

For example, a military judge dismisses a specification because the specification fails to state an offense. That is what happened in United States v. Schloff. The government appealed, the ACCA decided the appeal in favor of the government, CAAF agreed with the ACCA, and the Supreme Court declined to issue a writ of certiorari. (We are now in the traditional Article 66, UCMJ, appeal before ACCA on the sole specification for which there was a conviction.)

(B) An order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding.

For example, exclusion of evidence through a suppression motion on the seizure of evidence. Or, as in a case I currently have, the refusal to declare a witness unavailable so the government can use the Article 32, UCMJ testimony of the witness.

In discussions with a number of appellate counsel colleagues we have noticed an appreciable rise in the number of government appeals, especially the Army. For the accused and trial defense counsel, this means several things.

• Delay, potentially of months while the appeals process works its magic. The prosecution is supposed to certify that the appeal is not solely for the purpose of delay.
• The record. If there is any indication that the prosecution may seek to appeal, you should make sure that the record contains everything possible that you believe will be necessary for a successful defense of the appeal. You should make sure the military judge makes complete findings of fact and conclusions and that you’ve given her the best case law possible to cite the ruling. The appellate court is supposed to give deference to the judge on appeal unless there are no findings and conclusions or the findings are clearly erroneous. So help the judge to help yourselves.

Amendments to the Federal Rules of Evidence – other than Articles III and V – will amend parallel provisions of the Military Rules of Evidence by operation of law 18 months after the effective date of such amendments, unless action to the contrary is taken by the President.

So, here is some relevant activity regarding possible changes to the federal rules of evidence.

Invitation for Comment on Evidence Rule 801(d)(1)(A)

As part of its ongoing work, the Advisory Committee on Evidence Rules is considering a possible amendment to Rule 801(d)(1)(A) that would provide for substantive admissibility of more prior inconsistent statements than is currently permitted under the Rule. The Committee invites comment from members of the bench, bar, and public on their experience with the rule and potential rule amendment ideas that have been identified by the Committee. Please submit any comments by August 31, 2017 to Rules Comments@ao.uscourts.gov(link sends e-mail). For further information, please see Tab 3 of the meeting materials for the Committee’s spring 2017 meeting.

• Invitation for Comment from Advisory Committee on Rules of Evidence (July 6, 2017) (pdf).

PRELIMINARY DRAFT OF . . . Evidence Rule 807, at 67.

See here for the Notice of the opportunity to comment, no later than February 2018. Important changes or additions seem to be:

• the court determines that it is supported by sufficient guarantees of trustworthiness—after considering the totality of circumstances under which it was made and any evidence corroborating the statement; and
• it is offered as evidence of a material fact;
• it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts;
• the party offering the hearsay has given reasonable prior written notice.

In exercising their awesome power a prosecutor should “Remember what it means to get it wrong. A criminal goes free. An innocent person is wrongfully punished. The community is less safe. The system has failed in its mission.”

So says a former prosecutor with experience as a defense counsel.

First, the prosecutor’s job is not to win cases. The job is to do justice. To do justice the prosecution must consider every aspect of the case. The evidence has to be evaluated from the perspective of the prosecution and the perspective of the defendant.

(And, the defense counsel must do the same. Take the time to think about the case as a prosecutor–consider how you would prosecute the case, what’s your evidence, what’s your theory, what are the holes, what are the problems with the evidence or the witnesses. By doing this you can be in a good position to explain to the client the problems and positives with the case. By doing this you can identify potential avenues of attack on the prosecution case. Have a co-counsel “act” as the prosecutor with the client, especially during preparations for a client’s potential testimony.)

All reasonable interpretations of the evidence must be considered. All questions of motive, opportunity and facility to commit the crime should be addressed. Then and only then can the prosecution confidently go forward with a plea offer and, if necessary, trial.

(Unfortunately, politics adversely affect the military prosecutor’s ability to do this. While “believe the victim” has an important role in how a complaining witness is treated outside the judicial process and courtroom, it cannot be allowed to affect the prosecutor’s duty to ensure a fair trial by thoroughly evaluating the evidence and the case as a whole. I have seen prosecutor’s get that ‘deer in the headlights’ look when they see their case fall apart in court. I attribute that to succumbing to the mantras surrounding sexual assault prosecutions in the military.)

As a prosecutor I made it a practice to give all of the evidence I had in the case to the defense. It was the right thing to do. How could defense counsel properly assess the case and advise his client without all the facts in the case? I made plea offers based on a true assessment of the case and did not try to weigh it down looking for room to negotiate. Finally, I never changed my prosecution stance based on the defense exercising its right to challenge all aspects of the case. At the end of the day my case would be strengthened or be shown to be weak, making for a better plea disposition or trial preparation. (Emphasis added.)

(The number one problem in military practice is discovery–the lack of it, or more common, the slow-rolling of production. I attribute this to a failure to timely prepare. Most of the discovery problems happen because a prosecutor doesn’t start to really prepare until a week or so before trial. It is then that they “discover” new evidence or new information. Because of that delay in preparing the defense is then forced to get late discovery. What is particularly frustrating in this situation is the prosecutor [and sometimes judges] express frustration that the defense then needs some delay to evaluate the discovery or conduct a further investigation–some of these prosecutors actually object to any delay [which they have caused]. The judge is understandably concerned that the trial date is affected and wants to pressure the defense to move forward.)

Wrongful convictions don’t happen without one or all of the following: poor police work (or dishonest police behavior); poor prosecution challenges to the investigation results (or incompetent or dishonest assessment of the case evidence); and insufficient consideration of the defense alternative scenario of the facts/evidence.

(As a senior trial counsel I always taught my counsel to do their own investigation, their own interviews, and not rely blindly on what was in the report of investigation. The defense doesn’t rely on just the investigation because, by experience, they know the ROI is not completely accurate, detailed, or is missing important information helpful to the defense. You should presume the ROI is biased toward only documenting information proving the crime; some investigators deliberately skew the ROI, others less deliberately because of their own confirmation bias–and yes, because they succumb to “believe the victim.”)

From the Buffalo News.

For more specific to military prosecutions, See Major G.K. Logan, “Zealous Advocacy, Professionalism, and the Military Justice Leader.” THE ARMY LAWYER. March 2017. Brought to us by Zeke Kennan.

The gist of Formal Opinion 466 is that, within the context of Model Rule 3.5, a lawyer may review a juror’s or potential juror’s various postings on websites and social media. But the lawyer should not send jurors or prospective jurors a request for access, either directly or indirectly, to their social media accounts because doing so would amount to a violation of the prohi-bition in Model Rule 3.5(b) against ex parte communications with jurors that are not authorized by law or court order.

While the above applies to a court-martial member, it’s likely a best practice when researching witnesses in a case.

We caution trial counsel…[as to] how difficult this area of the law can be. There are still issues to be resolved in this arena…. With precedents far from settled, only the bravest of advocacy acrobats ought to tempt fate. (They do so at their own peril, for we guarantee no safety net against reversal).

United States v. Weddle, 61 M.J. 506, 510 (C.G. Ct. Crim. App. 2004), citing United States v. Edwards, 35 M.J. 351 (C.M.A. 1992).

“We thus readily conclude that ex parte communications between a military judge and an SVC are generally proscribed.”

Yes, inexplicably, it was necessary for the Air Force Court of Criminal Appeals (AFCCA) to decide such an issue, as part of deciding what impact, if any, SVC’s ex parte communications had in a trial–a chilling thought.

In United States v. Turner, (an Air Force case) the SVC decided to have a little confab with the military judge before trial, allegedly about administrative matters–until you read the facts.

As you read the case, please note this turned into a military judge alone case–a case in which the MJ was to be the fact-finder on guilt or innocence, and the imposer of punishment.

Here is a most troubling part of the facts for which all defense counsel have fair warning and should include as part of their voir dire of an Air Force military judge.

The SVC also testified at the post-trial Article 39(a), UCMJ, session. When asked by the trial defense counsel if it was the “standard in practice as an SVC to meet with the military judge ex parte,” the SVC stated, “Generally, yes. We’re usually not included in [R.C.M.] 802 conferences, so generally the judge will speak with us, kind of one-on-one, sometimes before the trial begins and discuss just kind of administrative matters.”

The court finds “nothing nefarious” going on here. So, let’s apply the maxim that you attribute to stupidity vice malice, what happened here still doesn’t make a lot of sense.

• Why meet with the MJ in person for this question?
• Why meet with the MJ alone?
• Why not give the other parties a heads-up?

Why ask those questions?

• Is not the SVC part of the email chain for matters related to the trial?
• If there is a motion regarding the CW, the SVC would have been copied, so why need to ask the MJ if one has been filed?
• Why not ask the court-reporter?
• Why not ask the defense counsel?
• Why not ask the trial counsel?
• And as a last resort, why not email the MJ copy all with the question about the motion?

In addition to the arguments in the court, is this not the equivalent of a witness meeting with the judge off-the-record? The court noted:

[T]he line between administrative and substantive matters blurs quickly. What may start as a simple discussion of administrative matters can easily become a discussion of substantive issues. Therefore, the military judge’s in-chambers meeting with the SVC, without the parties, was fraught with risk. This risk was quickly realized once the SVC revealed the facts and circumstances surrounding the trial defense counsel’s pretrial interview with the SVC’s client, a Government witness who also maintained recognized legal interests in the proceedings.

In what other court or court system in the United States is a witness–the central witness–even allowed to get to the judge’s chambers?

Only in the military where we have Special Status Counsel.

We remind McCollum’s counsel that “the statement of facts in an appellate brief should be a concise narrative of the facts stated in accordance with the standard of review appropriate to the judgment and should not be argumentative.” King v. State, 799 N.E.2d 42, 45 n.2 (Ind. Ct. App. 2003) (citing Ind. Appellate Rule 46(A)(6)), trans. denied (2004), cert. denied. Also, we disapprove of counsel’s accusation that the State has “stoop[ed]” to “desperate measures … to attempt to demonstrate the reliability and credibility of the confidential informant” mentioned in the affidavit and has “either played word games with this court or simply fabricated facts in its efforts to make an argument.” Reply Br. at 10, 11. Such hyperbolic barbs have no place in an appellate brief. Cnty. Line Towing, Inc. v. Cincinnati Ins. Co., 714 N.E.2d 285, 291 (Ind. Ct. App. 1999), trans. denied (2000).

McCollum v. State, 2016 Ind. App. LEXIS 370 (Sept. 30, 2016).