Thursday, April 24, 2008

CAAF again passes on ex writ challenging Coast Guard's Article 32 restrictions

The day after the Garcia writ appeal was docketed, CAAF denied it without prejudice to raising it during future proceedings. Garcia v. Crowley, __ M.J. ___, Misc. No. 08-8017/CG (C.A.A.F. Apr. 22, 2008) (summary disposition).

We previously discussed the Garcia petition for extraordinary relief, which challenges the Coast Guard's practice of precluding the recording of witnesses testifying at Article 32 investigations and restricts the defense's right to transcribe such witnesses' testimony, here and here.

As he did in United States v. Morton, 65 M.J. 91 (C.A.A.F. 2007) (mem.), Judge Erdmann dissented in part from the denial of the Garcia writ appeal. He wrote that he would order the government to "take no steps to preclude an employee of the defense from attending the Article 32, Uniform Code of Military Justice, 10 U.S.C. § 832 (2000), hearing, as a member of the public and from transcribing the proceedings, subject to the investigating officer's power to exercise reasonable control over members of the public attending the proceedings."


Cloudesley Shovell said...

Can anyone out there, even someone who disagrees with the Coast Guard prohibition on recording Article 32s, come up with a coherent justification for this policy?

I've tried, and I cannot get past this: "If the defense wants it, say no." Such a justification is childish and petty, so it cannot possibly be the correct justification. Anyone out there know what the actual justification is?

Anonymous said...

Well, from a significantly government slant...I can't figure out the CG's opposition to this. It is crazy and involves more litigation than required. Maybe it's time for the CG to stop doing their 5 courts a year.

Cloudesley Shovell said...

I have gone back and read the actual CGCCA order denying the writ. When all else fails, check the facts.

Garcia wanted either (1) a court reporter detailed at no cost to petitioner, with both parties free to get copies of the transcript, or (2) to pay for his own court reporter and have it privileged.

He's not entitled to (1). There is no requirement to prepare verbatim transcripts of Art. 32s.

(2) is stickier. However, Judge Erdmann telegraphed what Garcia ought to do. Since Garcia is already prepared to spend his own money hiring a court reporter, he ought to do so. Once the Art. 32 is done, assuming charges are referred, force the issue before the military judge. The Art. 32 officer has no power to order the court reporter to turn over the transcript, and the gov't has no subpoena power absent referred charges.

The defense can argue that the gov't had equal opportunity to record and transcribe the proceedings, and that the gov't, the party with unlimited resources, should not get to unjustly benefit from the defense's own trial preparation.

A gov't argument might be that the transcript is a sworn statement of a witness, and thus subject to disclosure under RCM 701(b)(1)(A).

In any case, if the gov't were to get a copy of the transcript, they need to pay the court reporter for it. Court reporters make a living charging for copies of transcripts. Woe betide the counsel who starts passing out copies for free. You'll be hit for a claim of conversion.

If Garcia is really serious about getting a transcript of the Art. 32, he should push the issue. Put up or shut up. That being said, the CG policy prohibiting recording is childish and petty.