Wagner on 802 conferences

I hate R.C.M. 802 conferences. As a longtime appellate defense counsel, I view 802 conferences as a screen military judges use to hide potentially reversible errors from the appellate courts. When I was at the trial level in the military commission system, 8-5 conferences (the old commission system's counterpart to an 802 conference) were even worse. Commission defense counsel were litigating in a system where most of their clients understandably distrusted their lawyers who wore the same uniform as their captors. It seemed ludicrous to expect an accused not to worry when his defense counsel, the prosecutor, and the judge went off together behind closed doors. Yet some of the presiding officers would call for 8-5 conferences in the middle of the proceedings, leaving the accused at counsel table with just his chasers while all the military officers trotted off elsewhere to work something out.

If I were litigating a contested court-martial as a trial defense counsel, my default position would be to resist 802 conferences with all of my might. And Senior Judge Wagner's opinion for NMCCA in United States v. Walker, __ M.J. ___, No. NMCCA 9501607 (N-M. Ct. Crim. App. July 8, 2008), just gave me more arrows in my quiver with which to fend off 802 conferences.

Senior Judge Wagner's opinion bears close study, and not just for its result [refer to my earlier disclaimer]. The opinion takes on the fundamental issue of the defense's right to equal access to evidence and has important things to say about that right. But tonight I want to highlight the opinion's treatment of 802 conferences.

The opinion offers three bases for objecting to the use of 802 conferences: (1) interference with the accused's right to be present at the court-martial's proceedings; (2) interference with both the accused's and the public's right to a public trial; and (3) interference with preparation of a substantially verbatim record of trial.

Senior Judge Wagner emphasizes that a defendant has a right to be present at "any stage of the trial where the defendant's presence and participation would be meaningful." Id., slip op. at 52. Both the accused and the general public also have a right to a public trial, as guaranteed by R.C.M. 806, the Sixth Amendment, and the First Amendment. Id., slip op. at 53. Finally, 802 conferences raise a "thorny issue of whether the record of trial is complete and verbatim" without a transcript of the 802 conference. Id., slip op. at 54. While NMCCA declines to provide relief on this basis, it "roundly condemn[s]" the military judge's use of 802 conferences to engage in substantive discussion of motions. Id., slip op. at 57.

Walker sets out in great detail the problems with 802 conferences. A trial defense counsel who employs these objections may either dissuade the trial judge from using such conferences or provide the basis for appellate reversal if the trial judge isn't dissuaded. In any event, trial defense counsel should be extremely sensitive to the imperative, of which Senior Judge Wagner reminds us, of ensuring that your client is present for every substantive proceeding in his or her case.