Thursday, June 21, 2007

Judge Erdmann horns in on Judge Baker's turf

In United States v. Albaaj, __ M.J. ___, No. 07-0002/AR (C.A.A.F. June 21, 2007), Judge Erdmann horns in on Judge Baker's turf by writing the opinion in a member's challenge case. The opinion was unanimous.

Here is Judge Erdmann's helpful synopsis of the case's holding:

We conclude the member's failure to disclose his relationship with Albaaj's brother, Emad, constitutes juror misconduct. When viewed objectively, the circumstances of the relationship combined with the member's failure to disclose it to the military judge injure the perception of fairness in the military justice system. Most members in the same position would be prejudiced or biased. The decision of the Court of Criminal Appeals is therefore reversed.

Here is ACCA's unpublished decision in the case. Reading the two cases together leaves one wondering, to quote CAAF's opinion in Hollings, "whether [they] are reviewing a different record of trial." It is difficult to believe that ACCA actually ruled for the government in this case. A member not only knew a witness, but had sent emails disparaging the witness and the witness's honesty a mere 15 weeks before the court-martial. At the court-martial, the member fails to indicate that he knows someone by the witness's name during voir dire. Then, of even greater significance to CAAF, when the witness shows up and testifies, the member never says, "Oh, by the way, I know that guy and have called him a liar." Plus, the witness is the accused's brother. CAAF rightly concludes that this scenario undermines public confidence in the military justice system.

Consider these facts from CAAF's opinion: "[An] e-mail from [the member] suggest[ed]that Emad was 'trash[ing] the [office of which the member was the XO],' that Emad 'had his facts wrong,' and that Emad's communications outside Fort Carson were 'BS' that had a negative impact. In general, [the member] believed that Emad had misrepresented facts and had 'a personal agenda which is not based on the fact[s] or truth.'"

Incredibly, ACCA opines that a member with such a view of a defense witness who is also the accused's brother could not be successfully challenged for cause. United States v. Albaaj, No. ARMY 20000121, slip op. at 4 (A. Ct. Crim. App. Aug. 1, 2006). ACCA's statement that the member "never held any animosity toward the witness," id. at 5, seems ludicrous.

Interestingly, the CAAF decision even identifies the member by name; I don't think CAAF was too happy with LTC M (Ret.). Perhaps it should have directed some of its ire at ACCA's implausible opinion as well.

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