Thursday, December 28, 2006

C.A.A.F. active over holiday season.

In its second decision in two days, the C.A.A.F. issued a decision today in U.S. v. Perez __ M.J. __ (C.A.A.F. 2006). Perez joins the long line of cases, broken only by U.S. v. Garcia, 59 M.J. 447 (C.A.A.F. 2004), where appellants have challenged the effectiveness of trial defense counsel on appeal and lost.

Perhaps the most interesting issue in the case was one that was not before the Court. First Sergeant Perez's daughter took the stand and, when she could not remember anything about her father's sexual abuse, the military judge allowed trial counsel to introduce her statements to CID detailing her sexual abuse at the hands of her father. Unless the military judge found that the victim's silence was due to First Sergeant Perez, there would appear to be a Crawford v. Washington, 541 U.S. 36 (2004), issue in this case. As if to acknowledge the inadmissiblity of the statements, the Court stated "The admissibility of these matters is not at issue under the grant of review in the present case." Slip op. at 5. Does anyone from DAD know if this issue was raised in the supp? If not, First Sergeant Perez may have another IAC claim. But, in light of Perez, it would probably not succeed.


Phil Cave said...

(Disclaimer -- not at trial, haven't read the ROT).

Why is there a Crawford issue, and why didn't the DC take a reasonable course of action?

The prosecution calls live witness. She clams up, for whatever reason. Can she be a hostile witness under 611(c), therefore subject to leading questions like -- "didn't you make a statement?" And she says, "I don't remember." and the TC says, "Let me show you this Appellate Exhibit." blah, blah, blah. Or, she says, "No I don't remember anything, but yes, I do recognize that exhibit, blah, blah, blah (establishing 803(5) foundation." TC says, "Judge at this time I would like to read Ms. X's past recollection recorded into evidence (because you don't get the document as PE under 803(5)." What's wrong with this so far, and why do we have a Crawford issue? The witness is there to be challenged about the contents of the statement. I agree a strange "procedure" to get there. Nor am I seeing this as IAC either. (I note that we don't have input from the DC on his/her thinking -- always problematic making decisions without the full input). So, had she testified consistent with her CID statement from the start, does not the DC seek to XE and minimize or point out untruths. And then on findings argue "falsus in uno, falsus in omnibus?"

Phil Cave said...

Ooops, and what about the Inaffective Assistance of Client? I assume the reference to the issue of suppressing the "confession" which the witness was called to corroborate (and yes expand upon), or the sua sponte "admission." Knowing the lead appellate counsel, I'd expect him to have supp'ed those issues if he thought them worthy?

Guert Gansevoort said...

I am not sure that the the requirements of M.R.E. 803(5) were met in this case. The victim could not even remember giving a statement to CID. Perez, slip. op. at 5. Thus I am not sure how the prosecution could establish that the statement was "made or adopted by the witness when the matter was fresh in the witness's memory and to reflect that knowledge correctly." See, United States v. Gans, 32 M.J. 412, 415 (C.M.A. 1991)(M.R.E. 305 satisfied where victim recalled making statement). Surely the CID agents who took the statement could not establish the victim's state of mind. Further, the military judge admitted the statement into evidence rather than reading the statement into evidence as permitted by M.R.E. 803(5). Perez, slip. op. at 5.

And all of this assumes that M.R.E. 803(5) remains facially constitutional in light of Crawford, which I highly doubt. After Crawford, a testimonial statement comes in only if the declarant is unavailable and was previously subject to cross-examination on the statement. With the victim present, she is, as Mr. Cave points out, subject to cross-examination pursuant to M.R.E. 611(c), or even impeachment under M.R.E. 613, but the statement itself does not come into evidence.

The fact that reasonable minds can differ on this issue means that there was no IAC on appeal. In fact, even if the law is as I say, there are certainly facts not reflected in the C.A.A.F.'s opinion that justify counsel's inaction, which even assumes that they did not seek a grant on this issue. I too know the lead appellate counsel and, given his experience, I am certain that all meritorious issues were addressed.

gene fidell said...

Perez is another case in which the system has seemed to move slowly. The first ACCA decision was issued on Oct. 14, 2003, over 38 months ago. Who knows when the trial took place? In Lee, the Air Force Court's first decision was in 2002. If one justification for a separate system of military justice is to dispense justice rapidly, something's wrong here.