Saturday, March 03, 2007

Still another published CGCCA opinion

The CGCCA web site is still down, but the court itself continues to pump out published opinions. The latest is United States v. Greene, __ M.J. ___, No. 1226 (2007 CCA LEXIS 42 (C.G. Ct. Crim. App. 28 Feb. 2007).

Greene involves three issues. The first was a challenge to the accuracy of the transcript. The Coast Guard Court rejected this challenge, concluding: "Appellant has not identified any specific omission in the authenticated record, but would have us infer additional unspecified and unknown omissions based upon the fact that the military judge found omissions to correct. This we decline to do."

An appellate defense counsel who believes that the record of trial might be inaccurate should request a copy of the tapes of the proceedings from the court reporter. Alternatively, the appellate defense counsel can ask the trial defense counsel to review parts of the tapes. Often the trial defense counsel will have a sufficiently good relationship with the court reporter to get access to the tapes. If the issue can't be resolved by such informal means, the appellate defense counsel should file a motion with the CCA seeking an order requiring the government to produce the tapes, pointing out the reasons to doubt the transcript's accuracy. In three cases I litigated as an appellate defense counsel, we succeeded in obtaining the tapes of the trial. Counsel can then compare the transcript to the tapes to determine whether it is verbatim.

The second issue in Greene involved post-trial delay. The CA acted 173 days after trial and the Coast Guard Court received the record 201 days after trial. The Coast Guard Court found "a clear lack of institutional diligence resulting in unreasonable post-trial delay in this case." In the exercise of its Article 66 powers, the Coast Guard Court reduced Greene's demotion from E-1 to E-2. My best guess is that this returned some greenbacks to Greene. LCDR Truax, does setting aside a bust for a Coastguardsman who is given a BCD result in any meaningful relief?

Finally, the Coast Guard Court declined to provide relief because Greene never pled to one of the specifications of which he was found guilty based on his non-existent plea. The court reasoned:

Rule for Courts-Martial 910(b), Manual for Courts-Martial, United States (2005 ed.), provides that if an accused fails to plead, the military judge shall enter a plea of not guilty. Assuming a not-guilty plea to the specification at issue, the providence inquiry, during which Appellant was sworn . . . and testified under oath, provided ample evidence in the form of Appellant's testimony to prove the specification.

Greene, 2007 CCA LEXIS 42, at *11-*12 (footnote omitted). The Coast Guard Court also cited a Navy-Marine Corps Court decision that had come out the same way. United States v. Williams, 47 M.J. 593 (N-M. Ct. Crim. App. 1997).

The Coast Guard Court added, "We cannot discern any possible prejudice based on the entry of a finding of guilt of the specification after the absence of a plea to it." How's this for prejudice: if he never pled guilty to it, he was prejudiced by being found guilty on the basis of his purported plea? The Coast Guard Court might have reached the right conclusion, but I think the issue is certainly more difficult that the court lets on. Perhaps CAAF will choose to wrestle with it on a deeper level.


Nancy Truax said...

There were no tapes.

egn said...

I briefed a case before NMCCA that similarly involved the verbatim nature of the record of trial. The transcript noted that the tape was inaudible during certain portions of the trial, and that it had been turned off at one point, only to pick up during the next session of court. What made things worse was that the military judge never authenticated the record; the trial counsel authenticated it without stating why the military judge was unavailable; and it appears the trial counsel never made any effort to review the record for accuracy. The transcription was replete with errors, which NMCCA chose to ignore.

Nonetheless, NMCCA, in an unpublished opinion, ruled that it was no problem. The supplement to the petition to CAAF has been filed as of December 2006, but I don't know if that is one of the issues raised in the supplement.

Nancy Truax said...

In answer to the question about whether reduction provides any meaningful relief, as a matter of policy there is no automatic reduction in the Coast Guard. So if the CCA sets aside or otherwise changes a reduction, the Personnel Services Command will reimburse the member (here, one third of the difference between E-1 and E-2 pay for four months, because automatic forfeitures do apply).

John O'Connor said...

What a genius system we have here. So we say to this accused: "Yeah, you pled guilty, more or less, and providently admitted your guilt, and you deserve the stigma of a punitive discharge for your offenses. But, it really tookn us a little bit too long to get around to affirming that you are in fact guilty at the court-martial at which you pleaded guilty, so you're staying booted out of the service, and staying guilty to all the offenses, but here's a little money to wet your beak."

I'm always proud on April 15 that my tax dollars go to uses like that.