Wednesday, November 21, 2007

Another interesting but enigmatic daily journal entry

Monday's daily journal includes an interlocutory order in United States v. Harris, __ M.J. ___, No. 07-0385/NA (C.A.A.F. Nov. 19, 2007).

United States v. Harris, 65 M.J. 594 (N-M. Ct. Crim. App. 2007), is a weird opinion in a weird case that we previously discussed here.

The primary issue below was whether civilian police officer coerced a civilian witness into recanting a statement that was favorable to the accused. The case also raised a Confrontation Clause challenge to admitting a drug lab report and a post-trial delay claim. Petty Officer Harris now has a petition pending before CAAF which has generated some interesting appellate discovery.

On 25 September, CAAF issue the following order in the case:

On consideration of Appellant's motion to attach documents from the record to Appellant's supplement to the petition for grant of review and motion to compel documents to support Appellant's supplement to the petition for grant of review, it is, ordered that Appellant's motion to attach documents is granted, and Appellant's motion to compel documents is granted. Appellee will file these documents with the Court under seal, along with any proposed protective order that Appellee considers appropriate for the Court to consider prior to releasing these documents to Appellant.

United States v. Harris, __ M.J. ___, No. 07-0385/NA (C.A.A.F. Sept. 25, 2007). Interesting enough, but on Monday it became even more intriguing:

On consideration of Appellee's Response to the Court Order of September 25, 2007, and Appellant's Reply, it is ordered that the entire file of the Administrative Law Division of Judge Advocate General of the Navy, submitted under seal by Appellee on October 4, 2007, will be maintained under seal in the Office of the Clerk of the Court. Appellant and his appellate defense counsel may examine this file at the Clerk's office and may take notes, but may not reproduce any of the documents or disseminate the information contained therein.

United States v. Harris, __ M.J. ___, No. 07-0385/NA (C.A.A.F. Nov. 19, 2007).

It's not apparent to me what the topic of the appellate discovery is, though my guess is it has to do with reports of misconduct at one or more Navy drug labs. Can one of our naval readers fill us in on what's going on?


Anonymous said...

The facts of Harris are interesting indeed. It has been some time since I spoke with Captain Sanchez about his client's case, so I will leave any correction of my account to him.

Harris involves a prosecutorial misconduct/UCI issue where Navy JAG LT Chen allegedly exerted pressure on local law enforcement to silence an exculpatory witness in Harris' case. LT Chen's alleged misconduct led to a formal ethics complaint being filed at the Office of the Judge Advocate General, Code 13, which was then headed by Captain Easy E. Geiser. As I recall, Captain Geiser found that LT Chen had not engaged in ethical misconduct.

Not surprisingly, when Harris was issued, the authored judge, now Judge Geiser, agreed with himself that there had been no previous misconduct. Judge Geiser also admonished Captain Sanchez for his citations to the record, and implied that Captain Sanchez had raised "significant ethical issues in regard to counsel's candor to this tribunal." Sound familiar? Are all eighteen lawyers working at the appellate defense division unethical, or is the Court overly generous in its "counseling?" I digress. Captain Sanchez filed a motion to compel the production of Judge Geiser's report on LT Chen from the administrative law division. As I recall, the court refused to order its production. Why would Judge Geiser want to expose ethics advisor Geiser's work product? All that Captain Sanchez was able to obtain was verification that Captain Geiser had participated in the investigation. Armed with that information, Captain Sanchez moved to recuse Judge Geiser and for reconsideration by a newly constituted panel. Both motions were denied, and now CAAF is issuing cryptic orders. Fortunately, the court of law on E street will at least permit counsel to review the documents to ascertain the extent of the conflict.

What is stunning about this case, is that the Court blasted Captain Sanchez for arguing facts that it admits were in the record, but were merely "isolated words and phrases wholly out of context." That, in and of itself, is not stunning given that every appellate defense counsel has been convicted of similar offenses in written NMCCA opinions. What is stunning is that somehow, Judge Geiser was able to ignore the plank in his own eye, and when it was pointed out to him, he denied its existence and the opportunity to inspect it.

One can certainly forgive the Captain for failing to recall the ethics investigation into a conspiracy between a navy JAG and the Kauai Police Department to silence an exculpatory witness. It was certainly one of hundreds of ethics investigations. But once alerted to his prior participation in a related matter before his panel, he should have granted the motion to reconsider and recused himself. My guess is that CAAF will agree.

Dwight Sullivan said...

Another dead Navy flag officer heard from. :-)

Thank you, Commodore Barry, for that description of what is now a most interesting case.

Anonymous said...

I believe Captain Sanchez is now Major Sanchez (unless he has been subsequently demoted due to his "ethical issues" in regard to his candor to NMCCA).

No to blame the late Commodore, of course--I figure the promotion rolls make it to the netherworld at a sluggish pace. And no doubt a stale mug of Norfolk-nog will be raised in Major Sanchez's honor once word finally reaches yonder shore.