Court-Martial Trial Practice Blog
“We thus readily conclude that ex parte communications between a military judge and an SVC are generally proscribed.”
Yes, inexplicably, it was necessary for the Air Force Court of Criminal Appeals (AFCCA) to decide such an issue, as part of deciding what impact, if any, SVC’s ex parte communications had in a trial–a chilling thought.
In United States v. Turner, (an Air Force case) the SVC decided to have a little confab with the military judge before trial, allegedly about administrative matters–until you read the facts.
As you read the case, please note this turned into a military judge alone case–a case in which the MJ was to be the fact-finder on guilt or innocence, and the imposer of punishment.
Here is a most troubling part of the facts for which all defense counsel have fair warning and should include as part of their voir dire of an Air Force military judge.
The SVC also testified at the post-trial Article 39(a), UCMJ, session. When asked by the trial defense counsel if it was the “standard in practice as an SVC to meet with the military judge ex parte,” the SVC stated, “Generally, yes. We’re usually not included in [R.C.M.] 802 conferences, so generally the judge will speak with us, kind of one-on-one, sometimes before the trial begins and discuss just kind of administrative matters.”
The court finds “nothing nefarious” going on here. So, let’s apply the maxim that you attribute to stupidity vice malice, what happened here still doesn’t make a lot of sense.
- Why meet with the MJ in person for this question?
- Why meet with the MJ alone?
- Why not give the other parties a heads-up?
Why ask those questions?
- Is not the SVC part of the email chain for matters related to the trial?
- If there is a motion regarding the CW, the SVC would have been copied, so why need to ask the MJ if one has been filed?
- Why not ask the court-reporter?
- Why not ask the defense counsel?
- Why not ask the trial counsel?
- And as a last resort, why not email the MJ copy all with the question about the motion?
In addition to the arguments in the court, is this not the equivalent of a witness meeting with the judge off-the-record? The court noted:
[T]he line between administrative and substantive matters blurs quickly. What may start as a simple discussion of administrative matters can easily become a discussion of substantive issues. Therefore, the military judge’s in-chambers meeting with the SVC, without the parties, was fraught with risk. This risk was quickly realized once the SVC revealed the facts and circumstances surrounding the trial defense counsel’s pretrial interview with the SVC’s client, a Government witness who also maintained recognized legal interests in the proceedings.
In what other court or court system in the United States is a witness–the central witness–even allowed to get to the judge’s chambers?
Only in the military where we have Special Status Counsel.