Wednesday, April 16, 2008

Coast Guard's hideous Article 32 taping/transcribing prohibition/restrictions continue unabated

The Coast Guard has at least a practice (and it would seem a policy) of preventing the defense from tape recording witnesses at Article 32 hearings. Why anyone thinks such a prohibition serves the interests of justice or truthfinding is beyond me.

In United States v. Morton, 65 M.J. 91 (C.A.A.F. 2007) (mem.), the defense counsel wanted to overcome this unwise prohibition by retaining a civilian court reporter to attend the Article 32 and transcribe witness testimony. The CA apparently refused to allow it unless the defense made its transcript (which the defense would have been paying for) available to the trial counsel.

The defense challenged these restrictions in a petition for extraordinary relief that the Coast Guard Court denied. CAAF then denied a writ appeal without prejudice to raising the issue "in the course of future proceedings." Judge Erdmann dissented in part, observing:

I would grant partial relief by ordering that Appellee 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. I would not address the issue of attorney work-product privilege at this time as that is a matter appropriately left to a military judge in the event of a trial by court-martial.

Id. at 92 (Erdmann, J., concurring in part/dissenting in part).

We previously looked at Morton here, here, here, and here.

Now the issue is once again before the appellate courts. Today the Coast Guard Court dismissed a petition for extraordinary relief challenging similar restrictions "without prejudice to Petitioner's right to raise the issues therein in the course of normal review under the UCMJ." Garcia v. Crowley, Misc. Docket No. 004-08 (C.G. Ct. Crim. App. Apr. 16, 2008).

I hope that Fireman Garcia's counsel file a writ appeal and I hope that CAAF -- seeing that this wasn't an issue isolated to the Morton case and seeing that the Coast Guard has failed to apply common sense to the situation -- grants plenary consideration of the issue.


Anonymous said...

It is generally the better practice to record testimony, but certainly not required, even in a capital case.

John O'Connor said...

Personally, I don't have a problem with a requirement that any party transcribing an Article 32 make a copy available to the other side.

What would the defense think if the government paid a court reporter to transcribe the proceedings but then made the copy available only to trial counsel? Or had some contingent of court reporters assigned to the trial counsel shop specifically for this purpose?

I would have a problem with a CA prohibiting transcription altogether.

Cloudesley Shovell said...

Article 46 requires only that the parties have equal opportunity to obtain witnesses and evidence.

If the defense wants to have a reporter transcribe the proceedings, more power to them. The gov't has equal opportunity to hire their own reporter.

As far as getting copies of the transcript, the defense is already paying the court reporter for a copy of the transcript. The gov't can just pay the court reporter his or her fee for a copy. Ta-da! Equal access. This happens as a routine matter in civil cases. One reporter, and each party pays the reporter for copies of the transcript. That is how court reporters make a living, after all.

Why the Coast Guard has such a hard time with this concept is beyond me. How can things get so twisted that the party with literally unlimited resources and all the power can hold the weak and dependent party hostage over a court reporter fee is beyond my imagination. Only judges with decades of experience could arrive at such a ridiculous conclusion.

CAAFlog said...

Anon, of course the issue here isn't whether recording is REQUIRED, but whether recording can be PROHIBITED. Even if the answer to former issue would be no, the answer to the latter issue should also be no.

Cloudesley Shovell said...

Another point is that this bone-headed policy serves only to thwart one of the features of any justice system--swiftness.

The gov't should have said, sure, bring in your court reporter, and proceeded with the Article 32. Instead, they've tied up the case with pointless appellate proceedings.

The Coast Guard appears to be so insecure that it must block the efforts of the accused to create an accurate record of witness testimony, with an overt policy that stands in the way of getting to the truth.

The Navy and Marine Corps routinely records Art. 32s. They seem to do just fine. What's the Coast Guard so afraid of?

CAAFlog said...

Sir Cloudesley's comparison of USCG to USMC and USN practice makes me wonder whether this might be a good issue to test the Hamdan v. Rumsfeld/Article 36(b)/"All rules and regulations made under this article shall be uniform insofar as practicable" requirement. I don't see any reason why it would be impracticable for the Coast Guard to follow the other services' practice in this area.

Phil Cave said...

The Air Force follows Coast Guard practice. The Army and Navy & Marines do recordings - a more compelling argument for Article 36.

The government's concern is that the defense will have ammunition to cross-examine at trial. It's harder when there's no recording or transcript to impeach a witness --- that's the motivation pure and simple!

The only thing that might change such unfair practice is for a critical prosecution witness to become truly unavailable (e.g. death) after the 32 but before trial. Without a recording they'll never get past a Crawford objection to "prior testimony." I've even made that suggestion when asking USAF CA's to at least record. Doesn't seem to work.

I doubt too that we could get the JSC/President to change the RCM to require a tape recorded 32.

Until someone convinces there's a good reason for the prosecution benefit, you ain't going to get recorded 32's.

I've yet to have a client who can afford to pay a stenographer or secretary with short-hand skills to "sit in the public gallery." But it's an interesting option I've considered.

Cloudesley Shovell said...

Imagine this scenario-

Defense counsel shows up at the Art. 32 hearing with a tape recorder. Explains to Art. 32 officer that the tape recorder is necessary for DC to properly represent the accused. DC wants to record witness testimony to review later for trial prep and eventual cross-examination. DC even offers to make a copy of the tape available to trial counsel and the Art. 32 officer.

Now you have one of the parties recording, not a member of the public in the gallery. What possible justification would the Art. 32 officer, trial counsel, or CA have for objecting to the DC's efforts to record the proceedings? Since the DC's stated goal is to effectively represent his client, any objection from the gov't side creates an IAC issue.

Now assume that a court rules that taking notes is an adequate substitute for an actual recording. Can the accused then have a note-taker as part of the defense team so the attorney is not burdened with taking notes throughout the proceedings? Can the notetaker use a steno machine (which is not an audio or visual recording device), or can the note-taker be an expert in shorthand? How far down the trail of complete and utter absurdity does one have to push this argument to show how stupid the USCG policy is?

I'm preaching to the choir here, I know. It is interesting to note that posts here normally produce comments addressing a variety of viewpoints. It is telling that there has not yet been a single comment defending the USCG policy. Come out and comment, if you're out there. It's anonymous, you know.