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SHOULD THE MILITARY JUDGE HAVE DISMISSED CHARGE III AS PREEMPTED, MULTIPLICIOUS, AND AN UNREASONABLE MULTIPLICATION OF CHARGES; AND THE ADDITIONAL CHARGE AS MULTIPLICIOUS WITH CHARGE I, SPECIFICATION 1, AND AN UNREASONABLE MULTIPLICATION OF CHARGES WITH CHARGE I, SPECIFICATION 2?United States v. Anderson, __ M.J. ___, No. 08-0344/AR (C.A.A.F. May 5, 2009).
WAS APPELLANT AFFORDED A FAIR TRIAL EVEN THOUGH HIS REQUEST FOR A FORENSIC PSYCHIATRIST WAS DENIED AND THE GOVERNMENT THEREAFTER AVAILED ITSELF OF A FORENSIC PSYCHIATRIST AND ATTACKED THE QUALIFICATIONS OF THE VERY EXPERT IT DID MAKE AVAILABLE TO THE DEFENSE?
I can find neither hide nor hair of ACCA's opinion online. If someone could throw it over our transom, we'd be grateful. As always, you can reach us at caaflog@caaflog.com.
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9 comments:
The more I read about psychologists in criminal trials the more I am starting to think the Scientologists are right after all.
Right about what? That roughly 75 million years ago, there was an alien galactic ruler named Xenu who was in charge of Earth (whose name at that time was actually "Teegeeack")?
The issue raises an interesting point. In most civilian trials it's standard to have a battle of the experts. But in the world of military justice the government (not just the "government" in the general sense, but the prosecuting convening authority) has the duty of providing the expert. If the CA won't pay the 10 grand (rough estimate) for the requested expert and instead provides an "equivalent" government expert they really can't attack the qualifications of that expert. This sounds like a case of the over eager trial counsel.
The second issue is particularly interesting. I had something similar just last year in a USMC case. We'd requested a civilian expert who was denied. The government provided an alternate. Then at trial they started to attack his qualifications.
What they had forgotten is that a month earlier they had done the same in a USMC case in the same circuit -- denied the civilian but provided a local Navy asset. In that case they'd not challenged the expert and allowed him to be qualified and testify as an expert in that case on the same matters they gave him to me as my expert. Unfortunately the client was convicted so the record is available now at NAD.
To me, this and now Anderson went shows how intentionally or unintentionally the government involvement in this issue can lead to sometimes ludicrous situations. I wonder how United States v. Warner, 62 M.J. 114 (C.A.A.F. 2005) affects Anderson? Or perhaps will Anderson cause some retrenching on Warner?
I've had this exact scenario happen twice - I've requested an expert, and then had the government begin to attack the expert I've been given. At that point, I simply stop, ask for a 39(a), and ask that the government appoint an expert who is qualified. In both cases, the TC have kind of realized what they were doing, and stopped their attack. I really, truly believe it's simply TC ignorance. They think they can attack the defense expert, so they do. It's TC taking a tactical view rather than strategic.
Kumahito:
Your tactical vs. strategic characterization is a good one. I think many TCs pay insufficient attention to the big picture (appellate) implications of how they prosecute a case. For example, it isn't always in the gtovernment's best interest to get every piece of helpful evidence admitted, just the stuff that is defensible on appeal. And it isn't always in the gtovernment's interest to make the most prejudicial closing argument, just the most prejudicial one that is defensible on appeal.
A lot of people think working as a TC or DC is really essential to working in one of the appellate shops. I actually think experience in one of the appellate shops is immeasurably useful to future service as a TC or DC.
Along the same lines, I've actually had TC deploy the classic "you're being paid to testify for the defense" attack, only to be met with "aren't you actually being paid by the CA (who had to find first that you were necessary, qualified, that no other adequate substitute government expert existed, etc)"?
Does anyone know what the charges and specifications are, in reference to the first issue? I have the exact same issue in one of my cases. Thanks.
Post above,
Very dry humor, but once you go back and read the first issue your humor makes sense.
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