CAAF has granted another of my petitions in a case.
On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is, by the Court, this 16th day of October 2017,
That said petition is hereby granted on the following issue:
APPELLANT CLAIMED THE PROSECUTION'S ARGUMENTS ON FINDINGS AND SENTENCE WERE ERRONEOUS AND PREJUDICIAL. THE COURT BELOW APPLIED THE STANDARD OF REVIEW IN UNITED STATES v. AHERN, 76 M.J. 194 (C.A.A.F. 2017), AND DID NOT FIND PREJUDICE. DID THE COURT BELOW ERR, BECAUSE THE PROPER STANDARD OF REVIEW IS FOUND IN UNITED STATES v. SEWELL, 76 M.J. 14 (C.A.A.F. 2017) AND UNITED STATES v. PABELONA, 76 M.J. 9 (C.A.A.F. 2017)?
Good news for the client, but sad.
Last year we took up the appeal of an Army sergeant. After reading the record of trial, I went to meet with the client at the JRCF, Fort Leavenworth, KS to hear from him. (I make every effort to visit an appellant client in person.) What he told me was supportive of some issues I'd already identified. But he had more to say about the work his military defense counsel had done--or not done. One of his points was that his counsel did not prepare for him to testify and told him would testify on short notice. We did some investigation and talked to various people who had not been contacted about the case, or who were subpoenaed to trial, but not called to testify.
We filed our brief alleging some legal and factual errors--and especially ineffectiveness of counsel (IAC). As part of the brief, we asked for a Dubay hearing to investigate the claims. After the government had filed its response with affidavits from the military defense counsel, the court ordered a Dubay hearing. A Dubay hearing is uncommon. The Order is here.
We represented the client at the Dubay hearing. The military judge issued his findings of fact and conclusions of law (which are here) Notably, he said:
36. In this case, I conclude that trial defense counsel were deficient in three areas. First, counsel were deficient in failing to present evidence about x's motives to engineer this prosecution and her repeated statements that she would make sure the appellant was punished. Second, counsel were deficient in failing to conduct a full investigation regarding x and her motives to fabricate. Third, counsel were deficient in failing to prepare the appellant to testify. In each of these three areas, counsel's performance fell below an objective standard of reasonableness.
37. Regarding evidence about x, there were witnesses who would have testified that she loathed the appellant and made several statements about ruining the appellant's life, making him pay, and pushing the Army to prosecute him. None of these comments were made in the context of the charged offenses; rather, the statements were made because of marital problems, financial problems, and the appellant's plan to divorce x. At trial, defense counsel failed to show the extent of xvitriol. As Mr. x and Mr. x testified at the hearing, x made erratic demands and threats. This evidence was not presented at trial.
[My colleagues and I are seeing an increasing number of cases where sexual assault allegations crop up at the time of a messy divorce and child custody issues.]
In another unusual move today, the Army Court of Criminal Appeals set aside the findings and sentence in a summary decision--no discussion. The client is now subject to retrial, and we will continue to represent him through this additional traumatic time.
The difficult case
where persistence pays
"Appeals" under UCMJ art. 69(b), or "reconsiderations" under UCMJ art. 69(a) are difficult to win. If you do not get a punitive discharge or at least a year confinement, the service JAG decides your appeal. Most of the time that means an appeal is denied except in very few cases. Today we received the good news in a UCMJ art. 69(a) reconsideration that The Judge Advocate General has referred the case to the Court of Criminal Appeals. This means that the client will now get a full and proper appeal of his issues and the validity of his convictions.
After the court-martial, the client was processed for separation. The first time the Board heard the case they declined to find misconduct because they did not believe a crime had been committed. Told to do it again, the Board still stated disagreement with the finding of guilty, but also recommended retention.
Do not be discouraged
In United States v. Plant we were unsuccessful at the Air Force Court of Criminal Appeals. Reported below where we were successful before the Court of Appeals for the Armed Forces. Now, the Air Force court has taken action on the reassessment of the sentence and granted the full relief we asked for.
In the beginning, the client and his family were discouraged and did not think they could get any help on appeal.
Getting a conviction through any means?
Because of the political and leadership pressures to get convictions in sexual assault cases, some prosecutors are resorting to almost any means they think necessary. In United States v. Garcia that included government misconduct by using UCI in their argument and arguing that Garcia should be convicted because he invoked his right to have a trial and right to confront the accusations. The result is that the Army Court of Criminal Appeals dismissed the sexual assault and forcible sodomy charges. The court did leave intact some minor sexual harassment allegations. But most importantly, the client does not have to register as a sex offender and is not a convicted rapist. The court noted:
It is fundamentally unjust to incriminate an appellant by improperly commenting on his invocation of a constitutional right. . . . During her rebuttal argument on findings, trial counsel made two improper references to appellant's exercise of his constitutional rights. --Wrong.
In light of the three factors in Simpson, we first conclude government counsel's multiple improper references to Army-wide efforts to respond to and prevent sexual assault created the appearance of unlawful command influence. As set forth below in our prejudice analysis, we conclude that the proceedings were unfair and that the government's persistent and improper references to Army policy were a source of an unfair trial. --Wrong.
On 5 November 2015, the CAAF issued an order in United States v. Pinkela. They accepted our arguments without further briefing or oral argument. Now we are on the way to getting the client a sentencing rehearing, and hopefully, he will get his retirement.
This makes three of four successful appeals before the Court of Appeals for the Armed Forces this year.
The prosecution overcharges
United States v. Plant. In this case, we challenged a conviction for child endangerment. The C.A.A.F. held that the evidence was legally insufficient and set aside the conviction.
United States v. Pinkela. The C.A.A.F. summarily reversed the ACCA decision and ordered ACCA to redo their Article 66, UCMJ, review.
United States v. Brown, Result – new trial.
United States v. Savala, 70 M.J.70 (2011). NMCCA found legal error but opined the error was harmless beyond reasonable doubt. On appeal to CAAF that court found the error was prejudicial and that the government did not establish the error was harmless beyond reasonable doubt. The CAAF ordered a retrial or dismissal. The command elected to accept an OTH separation in lieu trial. Thus Savala has no conviction and does not have to register as a sex offender.I represented Savala at trial and on appeal. After the court reversed his conviction and granted a new trial, the military decided could not prosecute him, so he was issued an administrative discharge.
United States v. Saylor, This was an amicus petition I and several others filed on behalf of the National Institute of Military Justice.
United States v. Dorman: 58 M.J. 295 (C.A.A.F. 2003).
United States v. Lee,54 M.J. 285 (C.A.A.F. 2000): Argued for amicus the National Institute of Military Justice. Question of quorum for CCA appellate judges.
United States v. USAF 0-3: Convicted of bigamy, use of false official documents, falsifying immigration-related documents.
King v. United States (May 4, 2000): Counsel for, and argued for amicus the National Institute of Military Justice. Writ-appeal petition. CAAF All Writs jurisdiction, prejudicial pretrial publicity, and Sixth Amendment right to effective assistance of counsel.
United States v. Weiss, 36 M.J. 224 (1993), aff'd Weiss v. United States, 510 U.S. 163 (1994). Challenge to the designation of military trial and appellate judges as violating the Appointments Clause, Article II, U.S. Constitution.
United States v. Jordan. Petition to the U.S. Supreme Court, cert. denied Jordan v. United States, 510 U.S. 1177 (1994).
United States v. Smith: 43 M.J. 390 (1996). Members challenge.
United States v. Saylor: 40 M.J. 715 (N.M.Ct.Crim.App. 1994). Case clarified the effect of post-trial misconduct on plea agreements and the procedures required to vacate a suspended sentence.
United States v. Collins: 39 M.J. 739 (N.M.Ct.Crim.App. 1994). Speedy trial issue under UCMJ, Article 10, 10 U.S. Code §810 (pretrial confinement delay). Case helped expand the rule for a showing of prosecutorial "diligence.".
United States v. Clemons: 39 M.J. 865 (N.M.Ct.Crim.App. 1994). BCD not an authorized punishment.