The Appellant was accused of having sex with a 12 year old girl, but while the government had free access to talk to the alleged victim to prepare for trial, the defense was not given any opportunity to interview the alleged victim. The military judge ordered the alleged victim to submit to a pretrial deposition in order to remedy this unequal access to crucial evidence. Shortly before trial, the alleged victim was abruptly found unavailable to testify, and, over defense objection, a video of her deposition testimony was played for the jury. The question presented is:
Did the lower court err when it found that the deposition was a Constitutionally effective opportunity for cross-examination, where the deposition was the first and only opportunity for the defense to speak to the alleged victim, and the deposition had been specifically ordered to remedy the defense’s inability to effectively prepare for trial?
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Thursday, January 08, 2009
Cabrera-Frattini files cert petition
Cabrera-Frattini's progress through the military justice system has been so implausible and absurd, it seems like a Farrelly Brothers movie. Now that movie's final scene is about to be written. The Supremes have docketed a cert petition in the case. Cabrera-Frattini v. United States, No. 08-830. Here's the QP:
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I've heard the appellant will also try to be sworn into the SCOTUS bar at the same time as they hear his case.
The QP is somewhat confusing, unfortunately. The constitutional issue of confrontation, is different from the issue of trial preparation/effective assistance, although both may be at issue herein.
The question is, what is the prejudice other than "live" confrontation? If anyone has read the Cert Petition and knows, please inform us. E.g., if post-depo, the Defense AS A RESULT of the depo, discovered "impeachment" or other info that a reasonable counsel would have questioned the witness about, that may get 4 votes for Cert under Crawford/Confrontation.
The issue is the victim was reluctant to speak to CDC. That was made known the MJ who, at the request of the CDC ordered a video deposition. Several weeks before trial the victim regressed psychologically and did not want to testify. Her doctor (can't recall if it was a psychiatrist or psychologist) testified that the victim would attempt suicide if she testified. At trial TC said she was unavailable and moved to use the CDC requested deposition. CDC objected, the MJ took testimony and the MJ declared her unavailable.
Thanks Anon 2100!!
If the defense didn't move for a continuace until she was "recovered," there are a ton of "bad" cases out there.
So the first and only time the CDC talked to the victim was the deposition, which was ordered for discovery, and now that is used at trial for the conviction. Sounds like a trial by ambush.
1) How many defense attorneys ask questions at a deposition that they would never think of asking before members (to avoid pissing the members off)? And this was shown to the members?
2) Do anyone really think that the initial questioning of a victim is equivalent to what would have happened weeks/months later at trial?
3) So constitutional rights are impacted because a person says she will do something bad to herself if she is forced to testify? What if she is lying because she just doesn’t want to go through with it? Are you telling me the shrinks can read minds. I knew a service member who wanted out, the command wanted them out, but no reason existed to sep them. Upon suggestion they went to the O-6 head shrink, lied about doing harm to themselves or others if they stayed in, and were diagnosed with a personality disorder and sent packing. At the very least she should have been made to take the stand and refuse to testify.
How many years has this guy been in jail?
No, what I am telling you is after sworn testimony the MJ declared her unavailable. The victim was suicidal and was committed to a hospital with no date when she would be "well." Are you trying to compare an admin sep to a court-martial? But then again, you have no idea what the fact of this case are and the shrink didn't read minds she was the primary treating mental health professional. But hey, I know a case that says...and i stayed at a Holiday Inn express.
she should have been forced to the stand to force her to commit suicide?
Practice tip: Don't lead your cert petition with "Appellant had sex with a 12 year old girl."
Someone asked how long this guy has been in jail. Given the absurdly low sentences sex offenders get in the military, I'd say this guy is long free from prison.
Long free from prison? So much so that he went to law school. One of the twists that CAAFlog alludes to is the fact that CAAF scheduled an outreach oral argument of this case in New Orleans. Weeks before the argument it was learned that the appellant was a student at that very law school.
Is he still a student? I wonder whether or not he disclosed he was convicted of raping a kid on his application. If not, regardless of the merits of his conviction, there is no way he should ever be admitted to the bar.
As for "trial by ambush" and the types of comments asked in a deposition - shouldn't counsel recognize in a child sex assault that the victim might become unavailable for trial and the deposition might get entered into evidence? Shouldn't this possibility be factored in when requesting a deposition? And shouldn't he artfully tailor his questions "to avoid pissing the members off" if the deposition has the possibility of being entered?
I imagine this CDC recognized all that when making his decision to request deposition and that nothing like an ambush happened here. Instead, I see a CDC caught between a rock and a hard place who had to make a tough choice that perhaps didn't play out as perfectly as had been hoped.
Is he still a student? I wonder whether or not he disclosed he was convicted of raping a kid on his application. If not, regardless of the merits of his conviction, there is no way he should ever be admitted to the bar.
As for "trial by ambush" and the types of comments asked in a deposition - shouldn't counsel recognize in a child sex assault that the victim might become unavailable for trial and the deposition might get entered into evidence? Shouldn't this possibility be factored in when requesting a deposition? And shouldn't he artfully tailor his questions "to avoid pissing the members off" if the deposition has the possibility of being entered?
I imagine this CDC recognized all that when making his decision to request deposition and that nothing like an ambush happened here. Instead, I see a CDC caught between a rock and a hard place who had to make a tough choice that perhaps didn't play out as perfectly as had been hoped.
If you ask for a deposition you better know that one purpose of that deposition is to use at trial. In this case how can CDC claim ambush? He spoke to the witness, under oatch and memorialized! What other DC gets that of a victim? The CDC chose poorly and now the appellant is trying to parlay an incorrect choice
Concur with last Anon, be careful what you ask for...
Jeff - do you know the scope of the MJ's deposition order? The QP implies that it was ordered as an Article 46 "remedy" and not necessarily to preserve testimony. But, even so, there's nothing - unless there was a protective order precluding further use - to stop it.
At the risk being the proverbial "Monday Morning QB," DC probably made a poor choice in seeking the deposition. Obviously the complainant had made some form of statement(s), otherwise the case wouldn't have gotten past the 32. But, that statement's NOT going to be admissible at trial where you take your chances on a depo. They gambled and lost.
I wonder if the defense ever followed up to see if the complainant was released from the hospital the day after the trial...
As far as the immigration consequences, as long as he's got viable appeals pending, he's ok. Once he loses, he'll get the deportation notice.
I don't see the Supremes getting excited about this - it happens every day of the week in civilian practice. Unless you're in an enlightened jurisdiction such as Florida which allows defense depositions in criminal cases, we rarely get cops, much less victims to talk to us pretrial. Now and then, one admits at trial that they didn't talk to us because the DA told them "not to" and that generates a day's worth of hearings.
We get witness statements in discovery, and grand jury testimony as Jenck's material at trial.... in State courts.
Article 46 is a modern miracle compared to federal criminal discovery!
Appreciate the Schadenfreude all, to Jeff Stephens, Kyle Murray is an idiot who needs to get his facts straight regarding the USNA. I would hope that they would have taught you in law school or NJS that hearsay within hearsay is not allowed. There is a lot of misinformation regarding my case out there, but I do believe that the issues raised in the cert. petition transcend the merits of my case and may clarify the law for future defense attorneys.
Your case? Are you the appellant?
Sure seems that way, Toussaint! Unless we've got an officious interloper here!
With the Appellant posting on CAAFlog, this case now has everything.
Although the chances look pretty much slim to none, the only way it could get any better would be a grant from the Supreme Court.
So...Mr. Cabrera-Frattini: Did you disclose your felony conviction on your law school application?
Military cases may be "felony equivalents" under state/federal law, but they are simply offenses under the UCMJ, not classified as felonies or misdemeanors.
And, in a reverse of Denedo, unless his appellate review was final, the "conviction" is not final.
Registration as a sex offender, prohibition for carrying a gun and sentence enhancement are triggered by the conviction. But your self justification much like the self justification on the underlying offense is amusing and written like a 2L in a blue book.
Rephrased, did your application include your conviction of raping a child? I am sure Loyola would be satisfied that it was "simply a military offense." Hey, I am sure state bars would care less as well.
It was Loyola. He may have gotten a special theologal dispensation.
Yes, I posted the comment referring to my case. No, I did not disclose my conviction and as a result I am no longer in law school. Anonymous with the 2L bluebook comment: I am not engaging in self-justification. There were real problems with the depositions testimony, in part, because the prosecutrix testified to events, committed by one of my co-accused (which he had already admitted to and described as part of the providence portion of his plea), in which she was unsure of whether it was me or my co-accused. Defense counsel was counting on her appearance at trial to probe those inconsistencies in front of the members. Since she did not appear at trial, my defense counsel wanted to enter some portions of the cross and exclude some (just as in a trial cross in front of members, he could chose what questions to ask to frame the theory of the case) and then highlight the inconsistencies in her testimony. However, the judge denied the defense request and the members did not see the cross (in its entirety or in part).
BTW, I am not trying to defend or justify anything. It is what it is. I did my time and I would like to think that I repaid my debt to society...What I just posted before regarding the deposition can all be found in the record of trial (for those of you who will take my comments with a grain of salt). JCF
I appreciate your honesty without condoning your actions. However, it seems like your CDC made a strategic decision regarding the deposition. Such strategic decisions are not meritorious for appeal. It didn't work. And I have read the ROT.
Touissant,
Can you verify, since you read the RoT, that the depo cross was NOT used and the members didn't see any of the cross????
That would be a classic "confrontation" issue, and for sure something that under Crawford and its progeny, MIGHT have interested the Supremes.
In any event, I nominate this to be the weirdest CAAFlog thread ever!
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