2008 (September Term)
United
States v. Von Bergen, 67 M.J. 290 (the military
judge abused his
discretion in denying appellant an Article 32, UCMJ, investigation on
rehearing,
where appellant had waived such an investigation in a pretrial
agreement when
he originally pleaded guilty to possessing but had pleaded not guilty
at the
rehearing, withdrawn from the pretrial agreement, and requested an
investigation; appellant’s original plea was improvident as a matter of
law,
which had the effect of canceling the pretrial agreement according to
its
terms, and the effect of the rehearing and appellant’s subsequent
withdrawal
from the agreement was to place the parties in their pretrial status
quo ante).
(the effect of ordering a
rehearing is to place the United States and the accused in the same
position as
they were at the beginning of the original trial; as one of the first
steps in
a general court-martial proceeding is an Article 32, UCMJ,
investigation,
unless the accused waives it, one of the first steps at a rehearing in
a
general court-martial proceeding should likewise be an Article 32,
UCMJ,
investigation if not previously afforded to the accused).
(a military accused is
entitled to a public Article 32 hearing absent cause shown that
outweighs the value of openness).
(RCM 405(h)(3) vests the
authority to close an Article 32 hearing in the commander who ordered
the investigation; a command decision to close an Article 32 hearing
must be made on a case-by-case, witness-by-witness, and
circumstance-by-circumstance basis).
(a military judge errs by
requiring a showing of prejudice as a precondition to providing a
remedy for a violation of an accused’s rights at an Article 32
proceeding).
(as a general matter, an
accused is required to identify and object to any errors in the Article
32 proceeding at the outset of the court-martial, prior to trial on the
merits; when an accused makes an objection at that stage, the impact of
an Article 32 violation on the trial is likely to be speculative at
best; the time for correction of such an error is when the military
judge can fashion an appropriate remedy under RCM 906(b)(3) before it
infects the trial, not after the members, witnesses, and parties have
borne the burden of trial proceedings; in the event that an accused
disagrees with the military judge’s ruling, the accused may file a
petition for extraordinary relief to address immediately the Article 32
error).
(although the Article 32
investigation is an important element of the military justice process,
it is not part of the court-martial; an Article 32 investigation takes
place before the convening authority’s decision to refer a case for
trial by general court-martial; a case may be referred to trial by
special court-martial without conducting an Article 32 investigation,
even though a special court-martial can result in the stigma of a
punitive discharge and confinement for up to one year; in light of
those considerations, the Article 32 investigation is not so integral
to a fair trial that an error in the proceeding necessarily falls
within the narrow class of defects treated by the Supreme Court as
structural error subject to reversal without testing for prejudice).
United
States v. Garcia, 59 MJ 447 (Article 32 requires a
thorough
and impartial investigation before any charges or specifications may be
referred to a general court-martial; at the investigation, the accused
has the
right to be represented by counsel, to cross-examine witnesses, and to
present
anything he may desire in his own behalf; the Article 32 investigation
operates
as a discovery proceeding for the accused and stands as a bulwark
against
baseless charges).
(pursuant
to RCM
405(k), the accused may waive an Article 32 investigation; the precise
form or
procedure for a waiver is not specified, and whether the accused’s
right to an
Article 32 investigation is personal to the accused is an issue of
first impression
at this Court; we recognize that as to many decisions pertaining to the
conduct
of the trial [e.g., what evidentiary objections to raise or what
agreements to
conclude regarding the admission of evidence], consent or waiver by
counsel is
binding, whether or not the client has personally consented or
explicitly
agreed to waive a matter; however, the decision whether to waive a
pretrial
investigation is unlike the many routine decisions a lawyer must make
as the
trial progresses; it is, rather, a decision fundamentally impacting a
substantial pretrial right of the accused; we agree that the right to
an
Article 32 investigation is a personal right, and in most instances
cannot be
waived without a defendant’s informed consent).
United
States v. Dowty, 60 MJ 163 (ordinarily, an objection
to the
method of selection of the triers of the facts must be made before
trial).
United
States v. Stirewalt, 60 MJ 297 (RCM 405(d)(1)
unambiguously
states that an investigating officer is disqualified to act later in
the same
case in any other capacity; a violation of RCM 405(d)(1), however, must
be
measured for prejudice).
2000
United
States v. Johnson, 53 MJ 459 (where an accused has
sufficiently important, legally-cognizable interests in the materials
or testimony
sought, and thereby has standing, there is no reason why a third-party
challenge either to a subpoena duces tecum or a subpoena ad
testificandum could not be raised during an Article 32
investigation).
(standing to object to a subpoena duces tecum or a subpoena
ad
testificandum during an Article 32 investigation exists when the
actions of
the government impact upon the reliability of the evidence presented
against an
accused at trial, e.g., coerced confessions, unlawful command
influence,
interference with the rights of confrontation or cross-examination, and
interference with the right to present evidence).
(investigating officer’s improper post-referral communication with trial counsel may involve two issues and two forms of relief: (1) if the communication supports a claim of bias in the conduct of the Article 32 investigation, the case can be remanded for an new investigation based on a denial of the right to an impartial Article 32 investigation; or, (2) if the claim indicates that the investigating officer served in a prohibited role, such as trial counsel, an appellant may request a new trial if there is prejudicial error).
(action of
investigating officer, after referral, in providing suggestion to trial
counsel as to possibility of using an individual as a potential witness
and to test certain evidence was not prejudicial where: (1)
investigating officer did not exercise any prosecutorial discretion or
make any tactical or strategic trial decisions; (2) actions taken by
trial counsel as a result of this communication were known to the
defense at time of trial; (3) information concerning the role of the
investigating officer would have made no substantive difference in any
ruling on legal issues related to evidence arising from that
communication; and, (4) post-trial defense submissions which noted the
communication from the investigating officer did not assail the
fairness of either the Article 32 investigation or the trial
proceedings).