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Judge Stucky, who wrote the opinion of the court, offers this helpful synopsis:
We granted Appellant's petition to determine whether the military judge abused his discretion when he admitted into evidence the victim's out-of-court statements accusing her father of indecent acts over a defense objection that admission violated Military Rule of Evidence (M.R.E.) 807 and the Sixth Amendment to the Constitution. We hold that, on the facts of this case, the military judge improperly admitted the testimony and, accordingly, reverse the decision of the United States Navy-Marine Corps Court of Criminal Appeals.Id., slip op. at 2 (footnotes omitted).
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12 comments:
Interesting commentary on the notice requirement for admission of residual hearsay.
I'm not sure that defense counsel necessarily would have anticipated and prepared to meet an argument to admit hearsay under Mil.R.Evid. 807 absent a specific notice of the prosecution's intent to offer the out of court statement under that rule. It's clear now they will have to.
No, they won't. It's called dicta for a reason.
Thanks, anon, for the refreshing chuckle. If you think a military judge will henceforth prohibit trial counsel from offering residual hearsay because the government failed to give notice specifically citing Mil.R.Evid. 807, I have a bridge to sell you.
Go figure, another CAAF reversal of a sex offense. Agree with Judge Ryan's most logical dissent.
One disgruntled poster keeps heckling CAAF with the same refrain: "CAAF is soft on sex crimes."
The complaint is wrong in both fact and in theory.
In fact, Czachorowski is still in criminal jeapordy - but this time must be tried with proper evidence.
Moreover, statistically, because CAAF only reverses, big ballpark, say 25 cases a year, and a fraction of these are sex crimes, the vast majority of sex crime convictions are left undisturbed.
Finally, even in theory, the poster is off base. The insinuation that CAAF judges are card-carrying members of NAMBLA or the Catholic Bishop cover-up clergy is wrong. We need independent judges to stop bogus prosecutions of child offenses, too, like the infamous New Jersey and California day-care child abuse fictions. Lots of innocent people went to jail on the incorrect, but socially conditioned theory that children do not lie. (When it comes to sex, this is mostly true, about 95%true...but we don't spin a wheel to distribute justice)
Judge Ryan's dissent is structured adequately, but misses a few nuances. She got it wrong.
First, she does a good job establishing the "considerable discretion" of the military judge. But then, there is a missing paragraph. There is no analysis explaining how the MJ applied that test. Just an assertion. If any appellate advocate submitted such an argument in brief to any editor, that fault would be red-lined.
In contrast, the majority could even concede the "considrable discretion" test and still win. Thats because they actually provide some analysis. They say that a MJ abuses his/her "considerable discretion" when they don't use discretion. Discretion is a careful and deliberate choice. But when you fail to consider your choices, you abuse your discretion, whether you are crossing the street, buying a car, taling to a telemarketer or admitting evidence.
While Clause B balances the probativeness of "available"
evidence, and Judge Ryan stresses its availability, the MJ still fails to apply proper discretion if he/she simply accepts the Government's bare assertions.
The MJ did not require the proponent of the evidence, the government, to show it could not obtain more probative evidence despite “reasonable
efforts.” Judge Ryan's implication that the defense assented to this assertion a) misplaces burdens; b) would establish a dangerous precedent.
Finally, there is no discussion of Clause C.
CAAFlog can do a "year in review" now that we have virtually completed the newest CAAF term with Judge's Ryan and Stucky.
My take is that Judge Stucky tends to oversimplify the law, he looks for the bare minimum category of rules, and is not a master of nuance (cf. this decision with Judge Baker's more nuanced concurrence), nor does he seem conscientious of how the case will establish precedent and practice. He is the consummate Art. I judge.
Judge Ryan may have taken the Judge Crawford seat - reflexively deferential to any governmental action. And when there are so many governmental agents - police, trial counsel, MJ, CCA's - there is a lot of deferring to go around.
1651 Anon,
I think you are way off the mark in asserting that Judge Ryan is "reflexively deferential to any governmental action." It is clear from a review of her decisions that Judge Ryan is driven by principles and that she is perfectly willing to vote for whichever party those principles favor.
I did a very quick analysis tonight -- in fact, so quick that I'm not entirely sure I caught every relevant case. But here's what I found.
I looked for 3-2 cases from this term in which Judge Ryan was in the majority. That is the population of cases in which she could have switched the outcome by voting for the other party -- the cases in which her vote (albeit along with the votes two other judges) was outcome determinative. Those five cases were Wilson, Hart, Gutierrez, Navrestad, and Miller. The first three of those cases resulted in victories for the government, the last two in victories for the defense. Presumably if Judge Ryan were actually outcome oriented, she would have swung those last two cases to the government. But she didn't because she isn't.
Let's also look at one 3-2 decision in which she dissented (and in which, therefore, her vote wasn't determinative): United States v. Adams, 66 M.J. 255 (C.A.A.F. 2008). In Adams, she advocated a plain meaning construction of the CA's action, leading her to conclude that the court-martial was without jurisdiction and the accused should receive total relief from both the findings and the sentence. Of course there are other cases in which a plain meaning construction of a relevant document will favor the government. And, in those cases, Judge Ryan will no doubt vote for the government. And that's because she is plainly motivated by principle and not by outcome.
Of course, as regular CAAFlog readers know, I sometimes disagree with a particular principle that Judge Ryan applies. But never because I think her motivating principle is illegitimate. In the very narrow range of cases that make it to CAAF, one wouldn't expect there to be too many slam dunks. One would expect CAAF's docket to be dominated by difficult cases in which different lawyers analyzing the cases in good faith will sometimes reach opposite results. But such opposing conclusions do not suggest that either side is outcome oriented rather than principled -- or "reflexively deferential" rather than reasoned.
I agree with CAAFlog. In particular, I note that Judge Ryan has applied a contract-type plain-meaning analysis to CA actions in ways that typically have been disadvantageous to the government. For reasons I have stated elsewhere, I believe this approach is not the soundest approach for construing CA actions, but that's the principle she applies.
Of course, there are other principled opinions she has written that favor the government (case in point -- her dissent in that judicial abomination that is Denedo). But to call Judge Ryan reflexively deferential to government officials is simply not a fair reading of her opinions.
Whoops -- in my discussion of Adams, I should have referred to the "convening order" rather than the "CA's action." Sorry!
CAAFlog and JO'C,
You have convinced me to take a training time-out and re-read/reconsider my critique of Judge Ryan. I did not realize I had accused her of practicing outcome determinative jurisprudence (unintentional) when I suggested a tendency to defer. But I need to reconsider. (Don't I get 10 days?)
What this case really highlights is the lack of specialization of trial counsel in child abuse cases. Why was this young girl interviewed several times, as opposed to one time, by a qualified and properly trained forensic interviewer? That one interview, by a qualified person, should have been memorialized by videotape. This prosecutor lacked the training and experience to try this case.
Last Anon,
Win some, lose some.
The same week CCA decides Walker, CAAF decides Czachorowski. I was the trial counsel in Czachorowski. Your point about training and experience is well-taken, as many readers and posters on CAAFlog can confirm.
As I recall, the child was interviewed three times by state child protective services personnel. None were recorded. Certainly, a trial counsel in an ideal situation can direct the investigation, or at least be involved, but here it was state officials running the investigation. Sometimes you just have to work with what you have.
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