U.S. v. Vazquez, 72 M.J. 13

First Principles: Constitutional Matters: Confrontation

1. there is a presumption against waiver of the fullest expression of rights under the Confrontation Clause
2. the Confrontation Clause guarantees the accused a face-to-face meeting with witnesses appearing before the trier of fact
3. the central concern of the Confrontation Clause is to ensure the reliability of the evidence against an accused by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact
4. as applied in this case, Article 29(b), UCMJ, sufficiently satisfied the central concern of the Confrontation Clause, where each witness testified under oath and in the presence of the accused and four of the final panel members, where the accused had the opportunity to cross-examine each witness, and where the verbatim transcript read to the two new panel members was subject to rigorous testing in the context of an adversary proceeding and would be admissible under the former testimony hearsay exception if the witnesses were found to be unavailable in a subsequent proceeding, even over defense objection; while the importance of the trier of fact observing witness demeanor cannot be discounted to the central concerns of the Confrontation Clause, absent a defense objection, or in the event of witness unavailability, the presentation of written witness testimony, without any of the members seeing the witness’s demeanor, is both an accepted practice and constitutionally unremarkable; stipulations of expected testimony, Article 32, UCMJ, testimony, and deposition transcripts are routinely presented to members and, absent objection, pose no dangers to the integrity of the courts-martial or the fairness of the members; as such, the accused has failed to show that the factors militating in favor of his interest were so extraordinarily weighty as to overcome the balance struck by Congress, or that his rights under the Confrontation Clause were violated

First Principles: Constitutional Matters: Due Process

1. given the plenary authority of Congress, itself subject to the requirements of the Due Process Clause, to legislate in the area of rules relating to the rights of servicemembers at courts-martial, an appellate court must recognize that the choices made by Congress and the President in establishing the procedures for courts-martial under Article 29(b), UCMJ, and RCM 805(d) are entitled to a high degree of deference; while it is axiomatic that an accused is entitled to a fair trial, absent an argument that the statutory scheme is facially unconstitutional, or an accused demonstrating that it is unconstitutional as applied to him, an appellate court presumes that the statutory scheme established by Congress and implemented by the President constitutes both the parameters of what process is due and a fair trial in the military context
2. servicemembers do not enjoy due process protections above and beyond the panoply of rights provided to them by the plain text of the Constitution, the UCMJ, and the MCM
3. a fair trial in a fair tribunal is a basic requirement of due process
4. there is no military due process right to have all members be presented with all evidence in the same way or the right to have the same jury present for the entire trial

Military Justice Personnel: Court Members: Generally

1. in a members trial, after five of six government witnesses had testified on the merits, the accused chose to challenge a member for cause, knowing it would drop the panel below quorum; rather than request a mistrial or any other alternative, trial defense counsel affirmatively stated that they had no objection to new members being detailed, participated in voir dire and the discussion about how to present the record to the new members, and stated that they had no objection to the procedure used (allowing counsel to give opening statements and then having counsel read the verbatim transcripts of testimony of the five witnesses to the new members); appellate defense counsel identified no errors related to this procedure before the CCA, and the accused did not allege that trial defense counsel’s tactical decisions to challenge the original member for cause and continue the trial with two new members constituted ineffective assistance of counsel; ordinarily, an appellate court would conclude that the accused had affirmatively consented to the application of the procedure established in Article 29(b), UCMJ, and implemented by R.C.M. 805(d)(1), and waived his right to object to them at this juncture, particularly when he failed to raise them before the CCA; however, given that the application of these procedures in this context has not previously been addressed by CAAF, and that CAAF harbors a presumption against waiver of the fullest expression of rights under the Confrontation Clause, it will treat the failure to object as forfeiture and review for plain error; to reverse the military judge’s application of the procedures established in Article 29(b), UCMJ, and RCM 805(d)(1), when the court-martial dropped below quorum mid-trial for plain error, any error had to materially prejudice the substantial rights of the accused
2. in Article 29(b), UCMJ, Congress provided for a contingency procedure in the event of a loss of quorum: (1) whenever a general court-martial, other than a general court-martial composed of a military judge only, is reduced below five members, the trial may not proceed unless the convening authority details new members sufficient in number to provide not less than five members, and (2) the trial may proceed with the new members present after the recorded evidence previously introduced before the members of the court has been read to the court in the presence of the military judge, the accused, and counsel for both sides; the President has implemented this statute in RCM 805(d)(1) as follows: when after presentation of evidence on the merits has begun, a new member is detailed under RCM 505(c)(2)(B), trial may not proceed unless the testimony and evidence previously admitted on the merits, if recorded verbatim, is read to the new member, or, if not recorded verbatim, and in the absence of a stipulation as to such testimony and evidence, the trial proceeds as if no evidence has been presented
3. Article 29(b), UCMJ, specifically authorized the procedures used in this case and represented Congress’ view of what process is due in the event a panel falls below quorum; while it was within the military judge’s discretion to either (1) recall witnesses who had testified prior to panel went below quorum mid-trial, or (2) declare a mistrial under RCM 915(a), the military judge did not abuse his discretion in deciding to proceed in accordance with the statute and RCM 805(d)(1) by having new members detailed and having transcripts of previous witness testimony read to the new members, particularly when defense counsel affirmatively stated that they did not object to the procedures that were actually used; it was accused’s burden to develop a record at trial establishing that the procedures permitted by statute were unconstitutional as applied to him; however, the accused’s acquiescence and complicity in every aspect of the procedures used did not create a record upon which to support an as-applied challenge; nor did they afford the military judge either a reason to declare a mistrial or a reason or opportunity to craft alternative procedures short of a mistrial, such as recalling witnesses, to obviate the Confrontation Clause complaints the accused raised for the first time on appeal
4. the military judge did not abuse his discretion by not invoking RCM 915(b) when the court-martial dropped below quorum in this case; RCM 915(b) requires the military judge to inquire into the views of the parties when grounds for a mistrial may exist and then decide the matter as an interlocutory question; a mistrial is a drastic remedy that is reserved for only those situations where the military judge must intervene to prevent a miscarriage of justice; because of the extraordinary nature of a mistrial, military judges should explore the option of taking other remedial action; where, as here, (1) the military judge diligently followed the procedures established under Article 29(b), UCMJ, and RCM 805(d) when the court-martial was reduced below quorum mid-trial, and (2) the accused failed to establish that the application of these procedures deprived him of his due process right to a fair trial under the facts of his case, the military judge could not have possibly abused his discretion in determining that this remedial action alleviated any potential grounds for a mistrial, and, thus, a duty to turn to RCM 915(b)’s procedures
5. there is no military due process right to have all members be presented with all evidence in the same way or the right to have the same jury present for the entire trial
6. as applied in this case, Article 29(b), UCMJ, sufficiently satisfied the central concern of the Confrontation Clause, where each witness testified under oath and in the presence of the accused and four of the final panel members, where the accused had the opportunity to cross-examine each witness, and where the verbatim transcript read to the two new panel members was subject to rigorous testing in the context of an adversary proceeding and would be admissible under the former testimony hearsay exception if the witnesses were found to be unavailable in a subsequent proceeding, even over defense objection; while the importance of the trier of fact observing witness demeanor cannot be discounted to the central concerns of the Confrontation Clause, absent a defense objection, or in the event of witness unavailability, the presentation of written witness testimony, without any of the members seeing the witness’s demeanor, is both an accepted practice and constitutionally unremarkable; stipulations of expected testimony, Article 32, UCMJ, testimony, and deposition transcripts are routinely presented to members and, absent objection, pose no dangers to the integrity of the courts-martial or the fairness of the members; as such, the accused has failed to show that the factors militating in favor of his interest were so extraordinarily weighty as to overcome the balance struck by Congress, or that his rights under the Confrontation Clause were violated

Trial Stages: Merits: Mistrial

1. a mistrial is a drastic remedy that is reserved for only those situations where the military judge must intervene to prevent a miscarriage of justice; because of the extraordinary nature of a mistrial, military judges should explore the option of taking other remedial action

Trial Stages: Appeals: Preservation of Error / Plain Error

1. in a members trial, after five of six government witnesses had testified on the merits, the accused chose to challenge a member for cause, knowing it would drop the panel below quorum; rather than request a mistrial or any other alternative, trial defense counsel affirmatively stated that they had no objection to new members being detailed, participated in voir dire and the discussion about how to present the record to the new members, and stated that they had no objection to the procedure used (allowing counsel to give opening statements and then having counsel read the verbatim transcripts of testimony of the five witnesses to the new members); appellate defense counsel identified no errors related to this procedure before the CCA, and the accused did not allege that trial defense counsel’s tactical decisions to challenge the original member for cause and continue the trial with two new members constituted ineffective assistance of counsel; ordinarily, an appellate court would conclude that the accused had affirmatively consented to the application of the procedure established in Article 29(b), UCMJ, and implemented by RCM 805(d)(1), and waived his right to object to them at this juncture, particularly when he failed to raise them before the CCA; however, given that the application of these procedures in this context has not previously been addressed by CAAF, and that CAAF harbors a presumption against waiver of the fullest expression of rights under the Confrontation Clause, it will treat the failure to object as forfeiture and review for plain error; to reverse the military judge’s application of the procedures established in Article 29(b), UCMJ, and RCM 805(d)(1), when the court-martial dropped below quorum mid-trial for plain error, any error had to materially prejudice the substantial rights of the accused

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. the constitutionality of an act of Congress is a question of law that an appellate court reviews de novo; to determine if a statute is unconstitutional as applied, an appellate court conducts a fact-specific inquiry
2. the accused has the burden to demonstrate that a statute is unconstitutional
3. given the plenary authority of Congress, itself subject to the requirements of the Due Process Clause, to legislate in the area of rules relating to the rights of servicemembers at courts-martial, an appellate court must recognize that the choices made by Congress and the President in establishing the procedures for courts-martial under Article 29(b), UCMJ, and RCM 805(d) are entitled to a high degree of deference; while it is axiomatic that an accused is entitled to a fair trial, absent an argument that the statutory scheme is facially unconstitutional, or an accused demonstrating that it is unconstitutional as applied to him, an appellate court presume that the statutory scheme established by Congress and implemented by the President constitutes both the parameters of what process is due and a fair trial in the military context
4. to determine whether Article 29(b), UCMJ, and the procedures to implement it set forth in RCM 805(d)(1) are unconstitutional as applied to the accused, the accused has the burden to demonstrate that the factors militating in favor of the accused’s interest are so extraordinarily weighty as to overcome the balance struck by Congress

Trial Stages: Appeals: Waiver

1. there is a presumption against waiver of the fullest expression of rights under the Confrontation Clause