We occasionally get asked whether military members can revoke a consent to search. The answer is yes. The sooner you revoke the consent to search the better.
In a case last year, a service member had a conviction reversed because he revoked consent to search.
The court gave a very nice summary of scope of consent. They wrote:
"The scope of a consent search or seizure is limited to the authority granted in the consent and may be withdrawn at any time. M.R.E. 314(e)(3), 316(c)(3); see United States v. Dease, 71 M.J. 116, 120 (C.A.A.F. 2012)."
We usually advise revoking consent in writing. It's a simple memo stating that you "hereby revoke previously providing consent to search [location] on [consent date]." They key is to make the revocation clear and unambiguous.
We previously wrote in detail on the subject here.
Mr. Pristera argues us v. cook at the air force court of criminal appeals - ineffective assistance of counsel and new trials at issue
On November 17, 2016, Mr. Pristera argued the case of United States v. Cook on appeal at the United States Air Force Court of Criminal Appeals.
The unique appeal presented diametrically opposing positions where Mr. Pristera had to concurrently argue for a new trial based on newly discovered evidence under R.C.M. 1210, and also ineffective assistance of counsel for the defense counsel’s failure to locate the evidence. The newly discovered evidence was a witness that was discovered a few days after the trial that could have impeached the alleged victim’s testimony. The Air Force Court was very professional and non-confrontational. They were clearly prepared for the appeal and asked very targeted intelligent questions. We expect a decision in this case in early 2017.
It is so important that counsel properly investigate cases before trial. Below is an introduction to the law of ineffective assistance of counsel.
Ineffective assistance of counsel claims are subject to a de novo standard of review. United States v. Wiley, 47 M.J. 158, 159 (C.A.A.F. 1997), citing S. Childress & M. Davis, Federal Standards of Review, § 12.09 (2d ed. 1982.) United States v. Grigoruk, 56 M.J. 304, 306-307 (C.A.A.F. 2002).
A military accused has a constitutional right to the effective assistance of counsel. United States v. Denedo, 66 M.J. 114, 127 (C.A.A.F. 2008), aff’d, 129 S.Ct. 2213 (2009); United States v. Scott, 24 M.J. 186, 187-88 (C.M.A. 1987) (citing Strickland v. Washington, 466 U.S. 668 (1984)).
The burden of proof lies with the Appellant, and he “must surmount a very high hurdle” and overcome “a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689; Denedo, 66 M.J. at 127 (citing United States v. Perez, 64 M.J. 239, 243 (C.A.A.F. 2006)). This presumption of competence cannot be overcome unless the accused demonstrates: first, a deficiency in representation, and second, prejudice. Scott, 24 M.J. 186.
Firstly, the defense counsel’s deficiency must be “so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment.” Denedo, 66 M.J. at 127-28 (citing United States v. Moulton, 47 M.J. 227, 229 (C.A.A.F. 1997). Examples of failures that can constitute a deficiency in representation are affirmative misrepresentations of the law, failures to investigate defenses, witnesses, or evidence, or specific errors made which were unreasonable under prevailing professional norms. See United States v. Cronic, 466 U.S. 648 (1984); Denedo, 66 M.J. at 127-28; Scott, 24 M.J. at 188.As a general matter, however, the Court “will not second-guess the strategic or tactical decisions made at trial by defense counsel.” Perez, 64 M.J. at 243 (citing United States v. Anderson, 55 M.J. 198, 202 (C.A.A.F. 2001) (citations omitted)). Additionally, “[t]he reasonableness of counsel's performance is to be evaluated from counsel's perspective at the time of the alleged error and in light of all the circumstances.” Scott, 24 M.J. at 188.
Secondly, the defendant must be prejudiced by errors “so serious as to deprive the defendant of a fair trial.” Denedo, 66 M.J. at 127-28 (citing Moulton, 47 M.J. at 229). The test for prejudice is whether, in “consider[ation of] the totality of the evidence before the factfinder,” there is a “reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Scott, 24 M.J. at 189 (citing Strickland, 466 U.S. at 695).
In Scott, the Court of Military Review applied the Strickland test and found that the defense attorney’s performance was both deficient and prejudicial. Scott, 24 M.J. at 192. In that case, the defense was based on alibi. Id. at 189-90. The defense attorney did not timely investigate the defendant's alibi and did not follow up after a volunteer investigator located possible witnesses. Id. at 189-90. At a DuBay hearing, it was determined that one of the witnesses would likely have been able to corroborate the defendant’s alibi defense had the defense attorney timely interviewed her and adequately prepared her for trial. Id. The Court found that in “light of reasonable professional norms … [defense counsel's performance] fell far short of reasonable competence,” and was deficient under Strickland because he did not put forth reasonable effort to investigate the defendant’s alibi. Id. This deficiency was prejudicial, the Court concluded, because had the defense counsel properly investigated and interviewed the witness, he would have been able to corroborate the defendant’s story, thus establishing a complete alibi defense to the charges. Id. at 193. The Court ultimately reversed the lower court and set aside the conviction. Id. at 193.
On 6 September 2016, in United States v. Gurczynski, the Army Court of Criminal Appeals (ACCA) sided with the defense and prevented the Government and Army Criminal Investigation Command (CID) from arbitrarily expanding the scope of a digital forensic search of a computer without first seeking an expanded search warrant. This case represents a refreshing reminder to Government that the warrant requirement is strictly enforced and requires explicit authority to conduct a search. In the wake of recent and constant changes to military law and procedure stripping rights away from Servicemembers, it is nice to see the Court enforce our constitutional protections.
The Accused was under investigation for “’attempted sexual abuse of a child, abusive sexual contact with a child and other offenses related’ to the allegations.” Army CID was properly granted a search warrant for his computer and portable media devices to search for communications between the accused and “the alleged victim of his abuse in order to arrange the meeting where the appellant ultimately engaged in indecent acts and sexual contact with the child.”
During the search of the devices, the Army CID digital forensic examiner encountered files that he reasonably believed to be child pornography based on the file names. Instead of stopping there and seeking an additional warrant to search those files, the CID agent opened the files and discovered child pornography.
At trial, the defense counsel moved to suppress the images based on an unlawful search under the 4th Amendment. The military judge granted the motion finding that Army CID impermissibly exceeded the scope of the search warrant. The Government appealed the trial judge’s ruling.
On appeal, the issue was whether the trial judge abused his discretion by granting the defense motion to suppress. The closely looked at the terms of the search warrant. Ultimately, the court found that an authorization to search for communications between the accused and alleged victim was not sufficiently broad to authorize a search for child pornography. The ACCA affirmed the findings of the military judge, that:
[First] the nature of the charges, given their plain statutory meaning, did not remotely contemplate the possession, creation or distribution of child pornography. Second, to search for child pornography upon seeing the video files, SA CP was required to obtain a new or expanded warrant…Third, the military judge determined that the inevitable discovery doctrine set forth in Mil. R. Evid. 311(c)(2) did not apply since CID did not have probable cause to search for child pornography in the first instance.
The take away from this case is two-fold. First, a thorough review of search warrants is critical in every case. Not only must the warrants be properly based on probable cause, but as demonstrated in this case, the scope of the warrant is controlling and will be enforced. Second, just because a digital forensic examiner or law enforcement have a computer seized, discovery of the information on that computer is not inevitable, and the inevitable discovery doctrine will not excuse violations of the warrant requirement.
Over the last few years, Article 120 and the law of sexual assault in the military has undergone seemingly never-ending revisions.
One of the biggest challenges has been defining the concept of "incapacitation." Articles 120 (b)(3)(A) and 120 (d) prohibit sexual activity with a person incapable of consenting because of impairment from drugs or alcohol.
Several years ago, it was common for prosecutors to charge sexual assault cases involving alcohol under the incapacitation provisions of the law. Over time, we have seen prosecutors start to favor forcible rape charges rather than sexual assault by incapacitation charges. The thinking seems to be that it's easier and cheaper to allege rape than incapacitation. In an incapacitation case, expert testimony is usually required. That costs money.
Nonetheless, the occasional incapacitation case generates appellate case law. Recently, the United States Navy and Marine Corps Court of Criminal Appeals had the opportunity to address the definition of incapacitation. In United States v. Newlan, No. 201400409 (N.M. Ct. Crim. App. Sep. 13, 2016), a three judge panel looked a the jury instructions in that case.
In Newlan, the Military Judge - Lt Col Francis - had borrowed the definition of impairment from Article 111 (drunken or reckless operation of a vehicle). In Article 111, impairment is any intoxication sufficient to impair the rational and full exercise of the mental or physical faculties.
It seems like the task of defining incapacitation should not be difficult. However, in the law, we have all sorts of differing standards for when a person is incapacitated ranging from driving standards, to capacity to form a will, to capacity to engage in sexual behaviors.
With Newlan and other recent cases, we are starting to see the appellate courts take a more pragmatic approach to defining incapacitation. The court wrote that Article 120 does not prohibit engaging in sexual acts with a person drunk or impaired by alcohol. The law prohibits sexual acts when the person's impairment rises to a level rendering them "incapable" of consenting to a sexual act.
This appellate language is probably a backlash to Department Defense training materials that are teaching the absurd. In every recent incapacitation case this firm has done, potential panel members are asked about their views on alcohol and consent during voir dire. They nearly always respond that they are taught that a person cannot consent to sexual acts if they have had any alcohol at all. They also nearly always disagree with that proposition. Department Defense efforts to train service members on consent are clearly not working. And it is probably because they are teaching concepts that are inconsistent with our every day experiences.
Nevertheless, the Newlan opinion is the latest in a number of recent decisions designed to better define the law of consent and impairment.
On 30 August 2016, Mr. Pristera obtained a full reversal of all charges from the Navy-Marine Corps Court of Criminal Appeals. The Court determined that the military judge improperly instructed the panel with regards to consideration of evidence of one charged offense as proof of a propensity to commit the other charged offense.
Appellant was charged with two specifications of sexual assault, against two alleged victims. The alleged assaults occurred almost a year apart. After the second alleged assault, the alleged victim made a restricted report to the unit sexual assault advocate. Upon hearing the allegations from the alleged victim of the second offense, the sexual assault advocate herself also claimed to have been sexually assaulted by the same person. Both women filed unrestricted reports a month later. Appellant was ultimately convicted of both offenses.
At the trial, the military judge instructed the panel on Military Rule of Evidence 413. That rule, prior to the landmark decision in U.S. v. Hills, allowed for propensity evidence to be considered in similar sexual assault cases. Basically, that means that the government can use evidence of one charged offense to suggest that the accused had a predisposition to commit the other offense. The result is a complicated instruction requiring the panel to distinguish between guilt beyond a reasonable doubt and guilt by a preponderance of the evidence.
While this case was pending appeal, the Court of Appeals for the Armed Forces announced its decision in U.S. v. Hills. In that case, the court held that MRE 413 cannot be applied to a charged sexual offense on the same charge sheet. This landmark decision overturned years of practice in the military justice system.
Based on that decision, Mr. Pristera filed a supplemental brief and assignment of error citing the Hills decision. The Court agreed with Mr. Pristera and overturned the conviction on the basis of an improper instruction and use of MER 413 evidence.
Academics Continue Their Push to Remove Protections for Accused Servicemembers in Sexual Assault Cases
A recent article (see below) presents the position that Military appellate courts should no longer have the authority to decide cases based on factual sufficiency. The article describes in detail the different stance that military courts have as compared to most federal and state courts regarding factual sufficiency. While I disagree with the overall opinion that Military appellate courts should no longer have the authority to review a case of factual sufficiency, the important take away for the Servicemember is that the need for competent and experienced counsel, at the trial, post-trial, and appellate stages, has never been higher. Members of congress and academics continually push for changes in the military justice system, but few of the voices behind the changes have actually observed a recent sexual assault Court-Martial.
I. A Defense Attorney’s Analysis of: Lisa M. Schenck, "Just the Facts Ma’am": How Military Appellate Courts Rely on Factual Sufficiency Review to Overturn Sexual Assault Cases When Victims Are "Incapacitated," 45 Southwestern Law Review 522 (2016).
Appellate review for factual sufficiency is a necessary protection for the military accused. When an appellate court reviews a case for factual sufficiency, the court is taking a fresh look at the facts presented at trial and determining whether a reasonable jury (or “panel” as they are called in Courts-Martial) could have found the appellant guilty beyond a reasonable doubt. Some of the criticisms of this authority highlighted in the article are (1) the appellate court does not have the benefit of observing witness testimony at trial, (2) that almost all federal and state appellate courts do not have this much authority, and (3) this authority essentially enables the appellate court to grant no deference to the military panel and substitute its judgement for that of the factfinder. Certainly, if a military appellate court overturns a conviction for factual (in)sufficiency, the court is substituting their judgement for that of the panel. Such a result, however, is not a bad thing.
The author’s opinion is largely based on cases involving sexual assault convictions by means of incapacitation of an alleged victim. The poorly defined meaning of “incapacitation” is at the heart of the problem. The article qualifies its opinion to remove this authority from the military appellate courts by concurrently arguing that there needs to be a clearly defined definition of “incapacitated.” We could not agree more with this point, but don’t hold your breath. Such a thing is easier said than done.
With all that in mind, the author argues that a military accused no longer needs the added protection of an appellate court’s authority to overturn a case based on factual sufficiency. To support this position, the author highlights, among other things, the improved quality of defense representation and due process afforded in the military system since the inception of the UCMJ in the 1950s, the significant effort to combat unlawful command influence in the military justice system, and the general reliability of a military panel. With more protection in place to ensure that a military accused receives a fair trial, the author argues that our system no longer needs such an unencumbered review by the appellate courts.
Regarding the issue of unlawful command influence and reliability of a panel in sexual assault verdicts, there is no fair comparison to civilian jurisdictions. Even under current military law, it is legal (not unlawful command influence) for a commander to require every Servicemember (and thereby every panel member) to take sexual assault training. There is no civilian equivalent of this. Could you imagine if the governor of your state required every potential juror in the state to take sexual assault training prior to your trial for sexual assault? And then the judge tells you that that despite the sexual assault training they received, you will still receive a fair trial because the judge will instruct them to disregard what they heard in that training? Additional protection at the appellate level would not be such a bad thing in that case.
Absent from the article, and the primary basis of my disagreement with this position, is the fact that military panels, unlike federal and state jurisdictions, are not required to have a unanimous verdict for a finding of guilty. In fact, in many circumstances, the panel only needs a 2/3 majority to convict and can have as few as three members. Most if not all civilian jurisdictions require a unanimous verdict with a set number of jurors. The meaning of this significant deviation from the civilian sector is that a military panel’s verdict is not as representative of the views of the members as is a civilian jury.
I am not arguing that Courts-Martial should require a unanimous verdict from a panel. The needs of the military to ensure minimal disruption to the mission simply could not withstand the immeasurable burden of requiring a unanimous verdict in every case. The increase in “hung juries” and the additional deliberation time per Court-Martial alone would suffocate the military justice system. Rather, I support the position that with a 2/3 guilty verdict from a panel in a felony case, additional appellate court authority to ensure that there was a fair trial, is appropriate.
II. The pendulum has not stopped moving towards the Government.
The military defense community is somewhat a victim of our own success. The single greatest driving force behind military justice reform is the fact that the defense community wins more than the government thinks we should. Our firm in particular has extraordinary success with sexual assault cases.
That success causes the government to attempt to “swing the pendulum” back to their side. They are doing this by changing the law, changing the rules, and reducing the protections that accused Servicmemebrs have. Unfortunately, too many lawmakers rely on the narrow-minded statistics of conviction rates, rather than a more substantive analysis of the strength of the cases the Government choses to bring.
The continued need for protection of the accused is obvious to any observer of the average sexual assault trail. Therein lies the problem. Congressional and academic case analysis is conducted on high profile outliers, not the everyday sexual assault trial.
As congress and the military consider measures to remove/reduce protections afforded to the accused Servicemember, it has never been more important to have qualified and experienced civilian counsel at every stage of representation. If the military appellate courts ever do lose the authority to review a case for factual sufficiency, they only protection will be to make sure the military panel gets the verdict right at the Court-Martial.
The Court of Appeals for the Armed Forces recently examined the question of the admissability of human lie detector testimony. Human lie detector testimony happens when a witness is asked whether another witness is telling the truth. The testimony is inadmissible on a number of different levels - (1) it is the job of the jury to determine witness credibility and (2) human's are notoriously bad at telling whether people are telling the truth. United States v. Knapp, 73 M.J. 33, 36 (C.A.A.F. 2014).
Despite the inadmissibility of human lie detector testimony, it is still a favorite line of questioning for young trial lawyers. Wouldn't it be great if the one witness that should believe the victim thinks he or she is lying. In this line of business, however, you have to be careful what you ask for. That played out perfectly in a Marine Corps case recently - US v. Martin.
In Martin, the accused was convicted of wrongful sexual contact. He received a BCD for an alleged sexual touching of the sleeping wife of a fellow Marine. The defense theory was that the alleged victim fabricated the story. The prosecutors called the alleged victim's husband to testify that he was sleeping next to his wife at the time of the alleged assault.
The question CAAF was deciding was basically whether defense counsel invited the human lie detector testimony. Here is what happened:
On direct examination, trial counsel asked the husband about the night of the party in question. to
Q. Now, after you fell asleep that night, do you have any recollection of touching your wife in a sexual manner?
A. No, sir.
Q. In your mind, is there any chance that you could’ve digitally penetrated or put your fingers inside your wife’s vagina?
A. No, sir.
Q. Why do you say that?
A. It’s never happened before. I have never woken up and just done something like that with my wife….
Q. And you said it has never happened before that. Has anything like that ever happened since that?
A. No, sir. ….
Q. When you originally talked to NCIS you told NCIS that you thought it possibly could have been you who had touched your wife?
Editorial: This is obviously a critical statement that defense counsel picked up on in the NCIS interview.
Q. Why did you say that?
A. I’m the kind of person that if it’s even remotely an option I think about it like that. I guess I’m, like, a by-the-numbers-type of person. So, I mean, my wife could have thought about, you know, maybe it could have been another night. But just the way she has been since then, then I know it wasn’t me. She wouldn’t be acting the way she does nowadays, like, if it would have been me. Even if it was something that she wasn’t expecting from me she wouldn’t be acting that way.
Editorial: On cross-examination, the defense counsel clearly wanted to elicit the fact that the husband - at one time - thought he could have possibly committed the digital penetration on his sleeping wife. The lawyer starts off the cross-examination well enough, but goes too far in asking the human lie detector question.
Q. When she initially told you, she didn’t give anything in detail, did she?
A. No, sir.
Q. And you initially thought that maybe she imagined it?
A. I just -- I was kind of in disbelief.
Q. You thought maybe she dreamed it?
A. Something like that, sir, yes.
Q. The story didn’t really make too much sense to you?
A. I just figured that if something like that would have happened then …. where was I in this? … [I]f something like that were to happen to me, sir, I would -- I would have stopped it or done something, like, instantly, sir. ….
Q. [A]t no point after [she told you about the assault,] … you never went and reported it to anyone, did you?
A. I honestly … [it’s] not like I didn’t believe her, sir. But it, kind of, it didn’t make too much sense to me….
Q. Okay. So you weren’t entirely convinced that this happened then?
A. No, sir. Q. And you told NCIS that?
A. Yes, sir.
Q. You thought that, hey, maybe … it happened[,] maybe [it] didn’t happen?
A. Yes, sir.
Trial counsel did not object to this questioning.
Editorial: There was probably a better way to conduct this line of questioning to elicit the information that the defense counsel really wanted before the jury:
1) The husband was in the bed at the time of the assault;
2) The husband did not personally see the alleged offense even though he was in the bed;
3) The wife did not make any sounds;
4) The wife did not try and wake her husband up;
5) The husband would have expected her to wake him up if she was being assaulted while he was in the bed with her;
6) The fact that the wife said nothing and did nothing led the husband to believe that he possibly could have committed the act.
STOP at that point. You got what you wanted - reasonable doubt that maybe the husband did it.
On redirecf examination by the prosecutor, the husband was asked:
Q. Now, you just told the defense counsel that you had your doubts?
A. Yes, sir.
Q. You do believe your wife, though, correct?
A. I do, sir.
Q. And she’s telling the truth?
A. She is, sir.
Q. And why do you think that?
A. The way … that it’s affected her, the way that she’s changed, the way that it’s affected our marriage -- the way that it’s negatively impacted us just as a family -- we have two kids, we have three dogs, and she’s just depressed. And I understand that a mother is, obviously, is stressed out from all that, especially with me deploying again. But even on good days, she’ll just snap sometimes. And just the way that it’s affected her, something as big as it had on her wouldn’t have happened over a small situation, sir.
Editorial: Military defense counsel should have conducted a re-cross-examination about the impact.
This was a tough lesson for defense counsel...but it highlights a couple of important points:
1) Never call or examine a witness unless you have to elicit the information to win the case;
2) Never ask a question unless you know the old answer and the current answer. The exception to that rule is when you don't care what the answer is;
3) When you get the information you need, sit down; and,
4) If the prosecutor gets into victim impact testimony during the merits portion of the trial, either object or have a re-cross ready.