CAAFlog: Two new CAAF opinions

Friday, April 25, 2008

Two new CAAF opinions

CAAF issued two opinions today. In one, CAAF upholds a military judge's ruling that the accused had no reasonable expectation of privacy in his government computer, which he used to download pornography and set up a sexual liaison with a civilian police detective he erroneously thought was a 14-year-old girl. United States v. Larson, __ M.J. ___, No. 07-0263/AF (C.A.A.F. Apr. 25, 2008). CAAF also rejected an IAC claim based on the civilian defense counsel's concession of misconduct as to some but not all of the offenses during his opening statement and closing argument. Judge Ryan wrote the opinion of the court. Chief Judge Effron wrote a separate concurrence emphasizing that whether a defense counsel must obtain the client's permission before conceding guilt to an offense during an opening statement or closing argument remains an unresolved issue.

In United States v. Reynoso, __ M.J. ___, No. 07-0221 (C.A.A.F. Apr. 25, 2008), CAAF offers a helpful exploration of the foundational requirements for introducing a summary of voluminous data under Military Rule of Evidence 1006. Judge Baker wrote for a unanimous court.

I'll likely be offline all of tomorrow, so everyone is encouraged to post an analysis of either or both of these two cases before I log back on sometime Sunday. If no one has done so, I'll provide some thoughts then.

30 comments:

Anonymous said...: They also denied my petition today, bad news indeed. Especially for everyone (present company included) that worked so hard at it. Really sad.

Well, I got one more "trick" up my sleeve. We'll see how that works out.

- TC; Fri Apr 25, 10:23:00 PM EDT
Anonymous said...: Oh, forgot to say that is an error coram vobis petition for US v. Cossio.; Fri Apr 25, 10:24:00 PM EDT
Anonymous said...: TC, what crime did you commit? Just between us: Did you do it?; Fri Apr 25, 11:17:00 PM EDT
Anonymous said...: Four years ago an individual stole $800+ dollars from his girlfriend who at the time was a friend of mine. She asked me not to report it to anyone, which I did not. That is until I was questioned, he made an allegation that I "threatened" him by saying I could put him in a comma. Which I did not do, I even took a polygraph.

He stated this months after the so-called incident. My belief since he was going thru tough times with his on and off again relationship, he'd figure to cut the competition out. Well, I decided to tell them about the theft, which they did ask, but at the time his Girlfriend wasn't cooperating. So nothing happened to him.

About a month later I found out he stole more money, so I [allegedly :)] sent his money to a charity in Russia.

I was about to get out, my enlistment was up, but I was nabbed by the OSI. Later on they threw the threat charges on. They gave scumbag, who had 4 bad checks, stole money, and had DUI's immunity for his testimony.

Now, I went Judge alone despite being offered a PTA in order to maximize my chances for an honorable. It didn't work.

So I knew since I was innocent of the threat charge, and a BS article 15 they gave me a few months before my trial, if I can somehow get my hands on some evidence to exonerate me or show some error in my Court Martial I can get this BCD off my back.

When I got out I made a website with the goal of "phishing" accounts, so I can get into eMails. I figured that the witnesses who lied (about the threats and MHT's Larceny) would have some eMails indicating a conspiracy. I did find some Mails indicating there were more larcenies committed that we didn't know about.

Well, the Government found out (a Government Employee phishing thru the network found me, and reported me for doing the same thing he was doing). And needless to say they were not amused. Now the only charges they can get me with were failure to obey an Air Force Instruction not to read other's eMails. Basically the charges were garbage and the judge tossed it on an article 10 violation, only to get over turned himself. I got a time-served PTA and charges dropped to two clause III 134 offenses (made-up prejudicial to good order and discipline).

At this time I came across evidence that the Government dropped the ball on a discovery request. The appeal is over now; the court ruled that it "probably" wouldn't have made a difference. CAAF affirmed the ruling that it’s OK for the Government not to comply with discovery request and do its job.

The main sticking point is that I am innocent of the threat charge. There was little evidence other than hearsay to find me guilty. Yet when these issues pop up the courts make a broad claim there is overwhelming evidence that I am guilty.

So in short the government can eat and have its cake too. That is to say, they can charge superfluously and when an issue comes up challenging the integrity of the charges, they can just focus on one charge and say there is overwhelming evidence that I was guilty.

--------------------------------

Anyways, I have one more ace up my sleeve. You see, I emailed these goofs through MySpace pretending to be one another (that is to say I pretended to be the Girlfriend emailing the Boyfriend and vice-versa).

I baited them, and exposed the conspiracy, I have not gotten a complete confession, but I am close.

Here, I will give you a sneak-peek. Now, remember I am pretending to be the GF talking to the "victim/witness" in order to elicit him lying/held things from court:

------------------------------

Date:
Sep 3, 2007 7:22 PM Flag as Spam or Report Abuse [?]
Help: Flag
Subject:
RE: RE: RE: RE: RE: RE: RE: No Subject
Body:
that will work

----------------- Original Message -----------------
From: Candice
Date: Sep 3, 2007 9:13 PM

OK thats the story then. If they ask you or you have to testify too we'll stick to the same plan as before and plead ignorance.

----------------- Original Message -----------------
From: MIKE
Date: Sep 3, 2007 6:21 PM

you cant remember, it was along time ago

----------------- Original Message -----------------
From: Candice
Date: Sep 3, 2007 8:10 PM

OK maybe im just freaking out over nothing. Its cosio and his lawyers anyway, not the prosecutors asking. But we just told them about the one time last time, do you want me to do the same this time or if they ask me about the other times what do i say, just deny it or I cant remember?

----------------- Original Message -----------------
From: MIKE
Date: Sep 3, 2007 6:04 PM

I told them I was honest about the one time and the one time only. there wasnt anything elsethey mostly just asked about the death threats. just tell them the same thing you did last time. I dont remember much about it. just tell them what you did before and they cant do anything about it. thats your story and your stickin to it.

----------------- Original Message -----------------
From: Candice
Date: Sep 3, 2007 7:59 PM

i dont know why either. I wasnt there when you testified so i dont know if you told them about the card lost at publix and pertending it was missing. I just want to know because that is really the only thing they are asking me so i think that you didnt say anything about it when you went to court and lke i said i didnt either, i said not that i can remember. Did you tell them everything? If not then i'll just tell them i can't remember again. But i need to know if you told them something different at court or left anything else out. I remeber the prosecutor asking us if you were honest about stealing from me and you never said you werent taking money from me. Im over it Mike, i dont care but i think cosio is trying to prove we lied about you being honest about stealing from me or something else. You know how conniving he is. I need to know if you told them about the whole publix story or if you left that out even the fight before we split up were you still said you never took anything. Im happy for you that you are staying in and i hope you make it far, but i need to know if you told them everything so they dont try to trick me or something. I'll see you around november 13, thats when the trial is.

------------------------------

Man, was that a bit conniving on my part. Truth be told I got the idea from reading up on the investigative techniques of the OSI, and my own experience with them. I really don’t like lying to people, even if it is “for a good cause”.

So thank you OSI, for showing me how to be deceitful to get confessions. The hard part was lowering my IQ and vocabulary to this reprobate’s level.

Anyways, I got a bit more work to do this weekend on it. Some folks are apprehensive about using this evidence, I am not. They are concerned the government would put on another show-trial. Which, considering the last one, is a real possibility. Except I don't think so for the following reasons:

1. I did not "intimidate" or "tamper" with any witnesses. Since the witnesses thought they were talking to a co-conspirator, and not me, the Government cannot claim like they always do when someone recants; that it is due to intimidation by the accused.

2. Even if the G-men wanted to make up some "wrongfully pertending to be ___ in order to prove perjury" or something to that effect, they can be my guest. How silly would that look, and what an opportunity to get everyone together, I would use such a show-trial like a Dubay hearing to further expose the conspiracy.

Therefore I have reached the point were I will use any kangaroo court to my advantage, as both sword and shield.

Unfortunately the Government will must likely prevail in the event an appeal is filed despite the perjury/fraud. They will make some stupid argument filled with holes and the AFCCA will eat it up whole cloth. Or make the argument for them. They will render an opinion that it’s okay for Government Witnesses to lie in court, its only perjury if a defense witness lies.

Yep, I can see the infuriating illogical arguments now. It's my opinion, but couldn't we save money by hiring trained monkeys to rubber stamp convictions rather than having a CCA to begin with? Oh, just sour grapes I suppose.

They miss the point though; the court needs to take in consideration perjury/fraud/criminal records by a Government witness who also testifies during sentencing. It’s not just in findings were this stuff came up. It came up during sentencing and pretrial motions about how honest MHT was about stealing. It saturated the entire court in all aspects of trial. Yet here they are focusing on one charge, on one aspect.

To answer your question succinctly:

I am innocent of the threat charge and misc. paperwork that I acquired before trial. As far as the other charges well, I'll say that there is "overwhelming evidence" of my guilt.; Sat Apr 26, 04:40:00 AM EDT
Anonymous said...: TC: FYI, there is a thing called a rhetorical question. And, secondly, when someone starts a sentence, "just between us," I don't think that is an invitation to share something with the world.; Sat Apr 26, 07:09:00 AM EDT
Anonymous said...: I really don't mind, because if you did a google search of my name it comes up.

So if you googled "Cossio" "air force" all this comes up anyways.

Therefore, it isn't such a big secret. The Government has already let the whole world know.; Sat Apr 26, 11:05:00 AM EDT
Anonymous said...: Also, to split hairs, "between me and you" would have been more appropo than "beetween us" as the later could indicate more than one (i.e. "us" at caaflog).

Well that is it for me, my appeal is over for now. There is no reason to troll around here anymore, but I enjoyed it nevertheless.

So bye for now. At least until I file for this next appeal. Which would only serve to prolounge the inevitable.; Sat Apr 26, 11:26:00 AM EDT
Anonymous said...: TC, did you threaten to put him into a "comma," or a "coma"?

Regarding the threat charge. Lets say you didn't actually make a threat. I would say what happened to you happens in about 1 in 4 trials. And it happens in rape trials more often. Courts don't test stories for truth, they test them for plausibility. Generally, if someone is willing to swear in open court that you did something criminal, then you are screwed. Not always, but generally. I'm sorry.

As to the OSI misconduct, why wasn't that in your appeal as a due process violation? Now, you waived it. Investigators may lie DIRECTLY to a target, but may not lie to 3rd parties or in a manner that would perpetrate a fraud on the court.

Final advice that all military defense attorneys should give their clients: We live in a new era, and BCDs simply don't mean that much anymore. The way you get the "last laugh" at the Government is not through the court system, but by going out into society, working hard and honest, and earning more money than the investigators, prosecutors and judges that you don't like. Its not that hard.

Forget the military. You didn't fit. Make your own future.; Sat Apr 26, 09:38:00 PM EDT
Anonymous said...: That would be nice for an accused to work hard and honest...a change of pace actually since they didn't seem to have that character trait on active duty. Again, post trial minimization of conduct and a vast government conspiracy to spend a great deal of money to train a person and then set them up at a court-martial so they can kick them out. Good advice, BCD's don't mean much today...right, ask Matt Diaz (dismissal, I know). such advice really sets up a nice IAC claim later. Heck, if you make that claim 7 years after you are discharged you get a lot of attention. Surprising we have so much appellate litigation with such outstanding counsel giving rock solid advice to young service member's.; Sat Apr 26, 10:45:00 PM EDT
Anonymous said...: That would be nice for an accused to work hard and honest...a change of pace actually since they didn't seem to have that character trait on active duty. Again, post trial minimization of conduct and a vast government conspiracy to spend a great deal of money to train a person and then set them up at a court-martial so they can kick them out. Good advice, BCD's don't mean much today...right, ask Matt Diaz (dismissal, I know). such advice really sets up a nice IAC claim later. Heck, if you make that claim 7 years after you are discharged you get a lot of attention. Surprising we have so much appellate litigation with such outstanding counsel giving rock solid advice to young service member's.; Sat Apr 26, 10:45:00 PM EDT
Anonymous said...: Ha, I just looked at that sp error. Of course I meant "Coma", of course I never said such a thing anyways so how would I know. Hmm...I wonder who this could be, so rigourous on my spelling, a young Noah Webster perhaps. But I brought it upon myself with my own critique on your grammar.

I realize a lot of trials are messed up. In my experiance people are often found guilty of a minor charge they didn't commit. I met a lot of people like that, most of them don't care because it was a minor charge. Or those who are framed as the mastr mind of a conspiracy, when it really was a cohort who got immunity behind the offense.

I agree with rape too being a big one, I met a soldier accused of raping prostitutes, another for raping his wife, and one for raping a girl who during the article 32 said OSI told her she was raped if she couldn't remember giving consent.

As far as the OSI misconduct, I reported it among other things. Like them arresting me off base without a warrant, questioning me when I already had counsel, guess were those concerns went? The sam place Rule 109 complaints go.; Sun Apr 27, 12:12:00 AM EDT
Anonymous said...: "That would be nice for an accused to work hard and honest...a change of pace actually since they didn't seem to have that character trait on active duty."

Wrong. Are you saying a cocaine user (most court-martials are drug related) is any less honest than an OSI agent or prosecutor? How is using drugs...What about Fiscus, what about the prosecutors knowing pushing court-martials for funny allegations of molestation and rape, what about that Major who...nevermind, don't get me strarted.

As far as your conspiracy crack, I've seen the government do things so criminal, more criminal than some of the people they put in jail, IT MAKES ME SICK!

But if you want to continue this pointless holy-than-thou arguement, I'll be your huckleberry.; Sun Apr 27, 12:21:00 AM EDT
Anonymous said...: To 10:45 anonymous,

So what's your problem? Let me get this straight, you think defense attorneys should tell their clients that their character is incorrigible and that their life is over? Have you ever had a client? Yes, BCD's don't mean as much today as they used to. This is both good advice and factually grounded advice that can be statistically born out. In today's transient economy, where nobody works anywhere for more than 3 years, many employers don't even ask about prior military experience. I know of 3 cons that, within a few years of their military justice experience, have their life on track and earn more income than O-5s. They paid their debt, dude, chill out.

Or, we could tell all our clients the opposite - that BCDs are the end of the world and they must fight it with every fiber in their being and never plead guilty because its the end for them. Now THAT is IAC.

And, counter to your odd point, such practical advice about the limits of how a BCD will impact them sets up no IAC claims later (as long as the factual negatives are listed, which I agree, must be). But otherwise, can you enlighten us as to exactly what the ineffective counsel is with such an approach?; Sun Apr 27, 01:14:00 AM EDT
Anonymous said...: Please bear the statistics out. What study has shown this and what scrutiny has that data been subject to? Telling a client a BCD is not that big a deal and you can continue to work hard and have a very successful life is just patently bad advice. It ay be inevitable that an accused is awarded a BCD due to his conduct but to tell them, "Eh, no big deal." is crazy. Please, show me your statistics that say a BCD is not a hinderance to future employment. Your personal knowledge of 3 offenders does not make it reality. I am not saying people who go to court-martial should be put on an ice float and please do not categorize in the extremes. And believe me, I am very chill.; Sun Apr 27, 06:37:00 AM EDT
Anonymous said...: "It may be inevitable that an accused is awarded a BCD due to his conduct but to tell them, "Eh, no big deal." is crazy. Please, show me your statistics that say a BCD is not a hindrance to future employment."

Allow me to end this debate quickly;

1. Employers generally cannot ask what type of discharge you were given. Only if you claim some sort of veteran preference. Therfore, your entire argument is rendered null.

2. The burden is not us. How about you show us statistics that show a BCD affects employment? And while you are at it why don't you go ahead and turn water into wine? Oh, can't do that huh? Your illogical fallacious argument fails the basic litmus test; it cannot be proven especially since EMPLOYEERS CANNOT KNOW WHAT YPE OF DISCHARGE YOU HAVE.

I found this out when I was promoted to team leader at a store after only 3 months of hard work and honesty. I would not be were I am today if I listened to your "gloom and doom" prophesying. Now, if you want to argue about a court martial “felony” conviction I would agree somewhat about it having an effect, except most employers do only state and local checks were a court-martial doesn’t show up.

------------------------------

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Dwight Sullivan said...: I know of no law preventing potential employers from asking applicants the characterization of their discharge and I would be surprised if such a law existed.

If such a law does exist, then the federal government is violating it by asking for DD-214s as part of the application process. We know from military justice case law (and I know from experience) that other potential employers do as well.

Does anyone know of any statute that imposes such a restriction? In the absence of such a statute, employers are free to ask away. And defense counsel advising their clients should know that many employers do, in fact, inquire.; Sun Apr 27, 10:58:00 AM EDT
Anonymous said...: I know of no such law and there is considerable litigation in the post-trial delay arena regarding review of courts-martial and finally discharging appellants (i.e., giving them a DD 214). As plead in many defense briefs (which I believe to be truthful assertions) many appellants claim they are not able to obtain employment at certain businesses w/o a DD 214 which presumes the employer asks and further presumes they ask the characterization). A state website may point to caution in asking certain questions of veterans but I don not believe that to be the case nation wide. Also, if a DC advises a client that a BCD is no big deal you can get jobs and make lots of money and the client relies upon that as deciding on a PTS/Guilty plea then that plea is not voluntary. And if a DC gives that advice knowingly or with disregard for actually telling the client, at least in my opinion, there is a good faith claim of IAC. And, gain in my opinion, clear malpractice.; Sun Apr 27, 02:25:00 PM EDT
Anonymous said...: I think the anonymous above asked for the statistical analysis. Are there studies that say what you claim? Where are you getting that position besides personal experience? Also, most courts are for drugs? Again, what statistic is that born from, my experience is most are 86 for specials but that might be service specific.; Sun Apr 27, 02:31:00 PM EDT
John O'Connor said...: I can tell you that we are told not to ask about characterization of discharge when we recruit. I assume that might be because the answer could reveal sexual orientation but I'm not really sure.; Sun Apr 27, 03:49:00 PM EDT
Anonymous said...: CAAFLog,

The reason, as Mr. O'Connor alluded too has more to do with medical/sexual orientation.

Since many can get a discharge of General for Other eason besides conduct that is why the question is not asked. It is taught to job interviewers.

However, as you alluded too this does not apply to Government Jobs as they ask anyways, and some require to see a valid 214. Again, this usually has to do with preference.

There is no "law" per se, its through implication why the question is not asked. However, there are general VA guildlines.

From University of South Florida:

Did you serve in the military? What type of discharge did you receive?
You can ask about the type of discharge on the employment application for the purpose of determining eligibility for veteran’s preference. However, this question deals with asking about the type of discharge during the interview process especially when follow-up questions are asked about the discharge.

The Equal Employment Opportunity Commission (EEOC), the Office of Federal Contract Compliance Programs (OFCCP), the Veteran's Administration (VA) and the Department of Labor (DOL) positions are as follows: The EEOC asks the question "Did you receive an Honorable or General Discharge?" This is to ascertain Veteran's Preference status. The OFCCP suggests that it is best practice to only ask a question to ascertain Veteran's Preference status. Further, the OFCCP explained that it is "best practice" not to ask about type of discharge in the interview process as it can lead to equal opportunity type issues. For example, if the discharge was for medical reasons, this information is revealed during the interview and the interviewer then begins asking about the medical condition. DOL’s position is that an employer should avoid questions about discharge during the interview unless business necessity can be shown.

It should be noted that at USF, questions relating to Veteran's Preference are asked on the application and are processed through Human Resources. During the interview process you may ask whether or not the applicant has served in the military, the period of service, rank at the time of discharge, and the type of training and work experience received while in the service. It is appropriate to ask questions pertaining to military service or experience when they relate to the bona fide job requirements. For instance, if an individual is being interviewed for a job teaching bomb disposal techniques, and the applicant learned his or her trade in the military it is appropriate to ask questions about the training, whether or not the individual had practical experience in the field, etc.

Although it seems a contradiction, on the one hand discouraging questions about military discharge, but on the other asking that question on the application, it is not. The questions on the application are used to ascertain one's Veteran's Preference Status. The questions during an interview are used to ascertain one's ability to meet the job requirement of a specific position, and therefore, questions concerning military discharge are rarely pertinent.

To conclude, you can ask about the type of discharge during the interview process. However, the interviewer needs to versed enough in protected category concerns to know when the questioning should cease when the responses from the candidate stray into these areas.; Sun Apr 27, 05:07:00 PM EDT
Dwight Sullivan said...: TC's citations suggest that there is no legal prohibition against employers asking about characterization of discharge but some employers voluntarily choose not to ask such questions or limit their inquiry concerning characterization of discharge to avoid any appearance that they denied an applicant on a basis (such as physical disability or sexual orientation) that might be protected under some federal, state, or local law or ordinance.

To the extent that employers are voluntarily choosing not to ask about characterization of discharge, that supports the hypothesis that the negative consequence of a federal conviction may be greater than the negative consequences of the particular characterization of discharge, thus providing further support for eliminating the subjurisdictional court-martial conviction.

It simply makes no sense to me that we do not afford a right to appeal a court-martial conviction to a court where the accused pleaded not guilty, vigorously fought the prosecution's case, but was convicted and received less than a year's confinement and no kick, but we do give the right to appeal (and that right is regularly exercised) to servicemembers who plead guilty and, in some instances, actually ask for discharges. Abolishing the subjurisdictional court-martial conviction while adopting the JO'Cian waiver-of-appellate-review-as-PTA-provision proposal would substantially increase the military appellate review system's rationality.; Sun Apr 27, 06:28:00 PM EDT
John O'Connor said...: I'm not one who has been beating the drum for mandatory review for sub-jurisdictional courts-martial. But it is my clear belief that a system that grants a right of appeal in sub-jurisdictional cases, but results in most guilty pleas not going up on appeal by virture of appellate waivers, would be a far more rational syastem than the one that exists now.; Sun Apr 27, 06:42:00 PM EDT
Anonymous said...: To the extent that employers are voluntarily choosing not to ask about characterization of discharge, that supports the hypothesis that the negative consequence of a federal conviction may be greater than the negative consequences of the particular characterization of discharge, thus providing further support for eliminating the subjurisdictional court-martial conviction.

Yes. And to add, I can't tell how many inmates, who didn't get the kick, couldn't wait to get coked out again once they got out (AF), or go AWOL again (Marines mostly).

Yet the people who really try to stay in, as with me, filing appeals, asking for return-to-duty, make restitution, well I just didn't have the luck as these other guys.; Sun Apr 27, 09:05:00 PM EDT
Anonymous said...: To anonymous who said: "Telling a client a BCD is not that big a deal and you can continue to work hard and have a very successful life is just patently bad advice."

This is just a baseless assertion. You are obviously a prosecutor, and have never been a defense counsel - or worse - were a defense counsel and never bothered to follow-up with your clients to see how their life turns out.

Telling somebody that they can work hard and honest and have a successful life is the epitome of good advice. It is based on both anecdotal and empirical experience. Those who fail are more likely to fail because of the deficient character traits that were revealed in their militry life - that were not later corrected.

I'm just sorry that your quest for vengeance is such a bottomless pit. But, thanks anyway for your utterly frivolous description of what IAC is. I wish the bar were that low on the government side.; Mon Apr 28, 02:25:00 PM EDT
John O'Connor said...: Sometimes, comments on this blog use "prosecutor" or "trial counsel" as if they are swear words. That doesn't strike me as a productive way to explore the various legal issues that arise here.

And I would say the same thing to a poster who treated the term "defense counsel" with the same degree of apparent contempt.; Mon Apr 28, 02:49:00 PM EDT
Anonymous said...: JO'C, as a defense attorney, I have no problem with prosecutors doing their jobs and doing justice by ensuring criminals are duly convicted and sentenced.

I react very strongly, though, when a prosecutor implies - if not says outright - that the sentence is not good enough. The prosecution rightly gets the confinement, plus a BCD, but now wants more: social stigma and failure for life. In such a situation, prosecutors trample over their own work.

As a defense counsel, we are more than just legal advocates, we are also counselors at law - which means providing legal, ethical, personal and moral advice.

See, for example, ABA Model Rules of Professional Conduct:

(Preamble) As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client's legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system.

(2) Rule 2.1 Advisor
In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.

So I completely reject an unqualified posters gunslinging comment that we cannot provide what is essentially moral comfort to a client who has received a BCD by pointing out the obvious: a BCD is NOT a scarlet-letter "F" for failure that he must wear on his chest for his life.

Now, while reasonable people can differ about that, Anonymous Gov't poster crossed the line when he whined that a BCD should mean oh-so-much-more and stated that providing such moral comfort to a client in the face of a BCD is IAC. So I won't apologize for calling such an opinion stupid.; Mon Apr 28, 03:10:00 PM EDT
John O'Connor said...: Last Anonymous:

I generally agree with you that it's appropriate for a defense counsel to advise his clients that a BCD is not a deatyh sentence and that it is a burden that can be overcome.

I don't really think the comment from the prior anonymous poster conflicts with that sentiment much (I must admit I didn't see anything in that prior post that makes me sure the poster is a trial counsel, or even excludes the possibility that he/she is a defense counsel). Anyway, I read that prior anonymous comment as stating an opinion that telling an accused beforehand that a BCD is no biggie is committing IAC. I disagree with that notion, though there is a kernal of truth to the idea that an accused's plea is all the more knowing and volunary if the accused knows what the ramifications of a BCD are.

I also see nothing wrong, really, with someone holding the view that a BCD "should" be stigmatizing; if a trial counsel holds that view, I really don't see it as necessarily consistent or inconsistent with the trial counsel's role in the process. It's no more wrong than a defense flak like CAAFlog believing that the exclusionary rule is a dumb idea.

And, in any event, I think leaping to the conclusion that someone with the views stated by the prior anonymous poster is necessarily a current or former trial counsel is not a logically sound one, and seems venomous toward current and former trial counsel in general. Having go0ne back and re-read the entire thread, I certainly can't say with any confidence that the poster in question is a TC.; Mon Apr 28, 04:36:00 PM EDT
Anonymous said...: There is a vast chasm of difference between telling an accused before a plea that a BCD is not a big deal today and several employers don't care about it and saying after a trial that a BCD is not insurmountable. The former is giving bad advice and the latter is giving counsel. As far as the comment about being a TC, who cares? Is this a defense bar blog? If so that's cool but it should be listed as such. If DC care not for the opinions of the other side of the aisle so be it. Having spent time on both sides I find it helpful to know the opinions of my colleagues. However, if the defense bar has corned this blog we who have opinions contra should just be silenced.; Mon Apr 28, 06:22:00 PM EDT
Anonymous said...: JO'C, you are right. There was some speculation in my reading of his comments and there is a kernel of truth there. Nevertheless, I think I made some educated guesses about the poster's occupation (that he/she is free to refute). I admit that I am venoumous, but not towards good American prosecutors, but ONLY to ones who make quickdraw bogus IAC accusations.

Everything is about context. If, from the start, all I was telling a client was, "Hey, a BCD is no big deal," then, standing alone, those comments would be imprudent. Especially if that was all I was telling a client before a guilty plea; huge problems.

But, here is why I am fairly certain that the previous poster(s) was at least not an experienced, or very good, defense counel:

1) A defense attorney - especially ones who read CAAFLog - would not be so cavalier and careless. But, anyway, under game theory, in the competitive culture of the profession, military defense attorneys (in many cases) tend to equate a BCD with a "loss" and beating a BCD as a "win." I tend to think that many defense attorneys have therefore internalized this scorekeeping and actually gone too far in the conservative direction by exagerrating the negative consequences of a BCD. The point here is that the poster conveys a sense of not really knowing the defense side of the bar.

2) A great number, if not most clients, want to fight everything. Irrationally so. In these cases, the substantive criminal law is the lion's share of the attorney-client discussion. And, in these cases, a BCD is simply a given. At trial, confinement is usually the most serious concern. Its on appeal that the punitive discharge becomes more important. The point here is that an expansive economic analysis of the impact of a BCD is not a decisive factor in pleading guilty at all. So the poster again conveys no real sense of having been in too many pre-providency discussions.

3) Defense attorneys have solid studies that show misdemeanor convictions have no intrinsic, lasting economic effects. Work in the fields of forensic psychology and criminology demonstrate that unreformed character traits inhibit success, not minor convictions. This data can be reasonably extrapolated to the impact of BCD, especially with the fairly substantial sample of ex-clients who DO succeed. The posters demand for studies - which I will work with CAAFlog on posting as an independent clip item - reveals an odd-sense that they don't WANT the data to be true. Now, JO'C, you can say I am "reading too much" into tone - but I'll leave that to other posters. Again, this is a blog, not a record of trial, so we do not have to feign ignorance of things outside the four corners of a statement.

4) The complaint about having "so much appellate litigation" can reasonably attributed to the government side of the bar, unless you are familiar with defense counsel despising their own jobs.

5) The post about the economic harm of not having a DD 214 betrays the logic of being written by a non-defense attorney: "as plead in many defense briefs (which I believe to be truthful assertions)" The distancing of the defense bar is a dead giveaway. If he were a defense attorney, he would have exercised due diligence and 'know' whether or not the assertions were truthful. He would know personally in his own cases. And if he didn't, then he would be a lousy (and lazy) attorney. If, on the other hand, he were a government attorney, since they never check these claims anyway, well I guess they would be forced to "believe" them.

Now, the most profound point we have here is this: whether a BCD "should" be stigmatizing. My follow-up would by, yes, but how stigmatizing? I agree that this topic is fair game and reasonable people may differ.

Let me do some digging on the empirical work in this field and carry that discussion over to another thread.; Mon Apr 28, 07:03:00 PM EDT
Anonymous said...: I gotta say, with all of these comments and the learned discussion, is it any wonder why someone with an unconditional guilty plea (BCD, no time) such as myself would fight so hard on appeal to get it overturned? It is essentially due to the federal conviction aspect of the entire debacle, and the general unfairness of the affair (read JMTG's dissent at the AFCCA sometime if you find which case is mine). I already earned two honorable discharges prior to the denial of cert by the SC, one of which included the time I allegedly committed the offenses.

So while a BCD is essentially a non-event in my career progression (MBA in December & management with a world-leader rubber products manufacturer), it is still something I would like to see overturned. At this point, it isn't even for me so much as it is for my kids. They don't deserve a dad with this kind of blemish on his record.

Besides, I think it would be a just result if this were overturned, since the gov't did keep me from my family for over a year while they played around with my case. I was a reservist a thousand miles from home that plead out to several Art. 15 level charges in order to finally know I would be going home to my wife and kids soon after. Had I decided to fight fully, I might have avoided the entire thing, but my expensive lawyer's advice felt that little to no confinement was worth the plea. I wish I knew now what I didn't know then...but that's what hindsight is for.; Mon Apr 28, 11:27:00 PM EDT

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Friday, April 25, 2008

Two new CAAF opinions

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