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Tuesday, March 06, 2007
Coast Guard Ex Writ
Anyone have inside gouge on the extraordinary writ from the CGCCA? Morton (Misc. No. 07-8009/CG) appeared on the CAAF Daily Journal for March 5, 2007 (the CAAF Daily Journal is, at least for the time being, now a daily, Daily Journal). The journal entry states that the motion for a stay of the CGCCA proceedings was granted. The journal says that the stay was granted until Mar. 8, 2007, and further action on the petition is held in abeyance pending the Court's final aciton. Based on the wording it is tough to tell if they mean final action by CGCCA or CAAF, but it must be CGCCA. No CGCCA decision in the case is available on the CGCCA website. Anyone know what the petition all about?
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Here is the gouge:
Chief Morton is charged with nine specifications of violating Article 134. The GCMCA ordered an article 32 hearing. The defense attorney filed a petition for extraordinary relief and motion for stay with the Coast Guard Court of Criminal Appeals. That court denied the petition. The defense then filed with CAAF.
The issue is this: Should CAAF Issue a Writ Granting Defense Counsel the Unqualified right to Produce an Unofficial Recording or Transcript of an Article 32 Hearing?
The Coast Guard refuses to record or otherwise preserve Article 32 testimony. In this case the defense decided to bring a civilian court reporter to the Article 32 so that they could have a verbatim transcript of the proceeding. The convening authority forbade the defense from using the court reporter.
The government is arguing that:
1. The appellant's claims can be raised during the normal course of appeal.
2. The Appellant's claimed right to create an unofficial transcript of an article 32 hearing is not "clear and indisputable."
3. The issue presented is a case of first impression that would require overrulin existing CCA Law, adn is therefore inappropriate for disposition via extraordinary writ.
4. The convening authoriyt did not abuse his ciscretion by requiring certain procedural safeguards before permitting defense counsel to produce an unofficial record of the article 32 hearing.
With regard to argument four, it seems that the convening authority demanded that the government receive a copy of the article 32 transcript as soon as it was completed. (And maybe even submit an erata sheet?)
The defense seems to be taking the position that argues: If you (convening authority) refuse to produce an official transcript, then you don't get the benefit of having one produced as soon as it's ready. In short, have your trial counsel issue discovery after referral of charges.
I don't have a copy of all the pleadings - I only have the government's answer and the petitioner's reply. So my description might be a bit off the mark.
The convening authority is RADM S. W. Rochon, USCG, Commander, Maintenance and Logistics Command Atlantic.
The lead defense attorney is a civilian: Mr. John B. Wells.
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