United States v. Gilley

STATES, Appellee, UNITED GILLEY, Sergeant, E. Technical

David Force, Appellant.

No. 00-0559.

Crim.App. 32877. No. Appeals

U.S. Court

the Armed Forces.

Argued Nov. 2000.

Decided Nov. 2001.

BAKER, J., opinion delivered EFFRON, JJ., Court, and in which GIERKE CRAWFORD, C.J., opinion an joined. filed concurring part and in the result. SUL- LIVAN, S.J., concurring in opinion filed dissenting part. part and (ar- Major Jeffrey A Appellant: Vires For R. James Wise gued); Lieutenant Colonel Timothy Murphy Colonel W. and Lieutenant (on brief); Major Stephen Kelly P. and Ma- jor R. Thomas Uiselt. Karen Appellee: Lieutenant Colonel

For Anthony P. (argued); L. Manos Colonel Dattilo, Rodg- A. Ronald Lieutenant Colonel (on ers, Cothrel Captain Christa S. brief); B. Colonel William Lieutenant Smith. opinion of the

Judge BAKER delivered the Court. 22-23, tried April

On consisting of offi- general court-martial Appellant was and enlisted members. cer commit- specifications nine charged with stepchildren on his three ting indecent acts involving assault specifications and four children, in violation battery of the same of Mili- Uniform Code Articles 134 and He Justice, §§ and 928. tary USC specifications of indecent six was convicted of of assault bat- specification acts and one to a dishon- sentenced tery. Appellant was years, for ten discharge, confinement orable allowances, and pay total forfeiture authority convening E-l. The reduction approved adjudged had sentence. The Air The defense of the case several First, Appeals components. miscon- Force Court of Criminal affirmed. that the sexual stepchildren happened. duct with his never granted following This review of the Court According appellant, stepchildren were issues: by their mother and had been controlled coached to lie in order to receive victim I. money. assistance those instances where issue, deny appellant THE did not the conduct at WHETHER MILITARY JUDGE WHEN, just COMMITTED PLAIN and the children were ERROR he claimed that he engaged in playing CONTRARY TO MILITARY RULE OF around and were not 301(f)(3), Second, regarding EVIDENCE HE ADMITTED sexual misconduct. QUES- THAT battery, EVIDENCE WHEN appellant assault and claimed INVESTIGATORS, TIONED BY AP- administering punishment. he was fair REQUEST PELLANT ELECTED TO Third, appellant attempted to discredit two COUNSEL AND TRIAL ALLOWED investigators by implying of the three COUNSEL REFER APPEL- TO TO fabricated oral confessions REQUEST LANT’S FOR COUNSEL IN prior knowledge step- based their of the HIS FINDINGS ARGUMENT AND allegations. Appellant children’s claimed the FAILED TO A PROVIDE CURATIVE investigators put then those fabrications a INSTRUCTION, THEREBY PERMIT- statement, appellant written which refused to TING A VIOLATION OF APPEL- it contained fabrications. because LANT’S RIGHT THE FIFTH UNDER AMENDMENT OF THE UNITED ISSUE STATES CONSTITUTION AND ARTI- THE CLE OF UNIFORM CODE OF allegations County, The arose Loudoun MILITARY JUSTICE. 30, 1996, Canham, Virginia. July On Donald investigator

a criminal with the Loudoun Office, County thirty years with Sheriff’s II. experience, appellant along interviewed with WHETHER APPELLANT DE- WAS (SA) Special Agent Washington Air NIED EFFECTIVE ASSISTANCE OF (AFO- Special Investigations Force Office of COUNSEL THE DURING POST-TRIAL SI) (a Henry Stribling County and Loudoun PHASE OF HIS COURT-MARTIAL. Social Services Child Protection case work- below, I, For the reasons cited as to Issue er). Appellant was advised of Fifth his military judge we hold the did not commit cooperate Amendment and elected to However, II, error. as to Issue we questions. and answer When confronted appellant effective, hold post- did not receive allegations, appellant initially with the said result, trial assistance of counsel. As a we alleged he had no recollection of the acts. return this case further action. Appellant later admitted to several of the allegations.

FACTS interview, Following County this Loudoun Appellant committing jurisdiction was convicted of in- authorities released to the Air stepchildren (ages decent acts on his three August Force. On SA Richardson fourteen), committing Washington ten to and appellant assault and SA interviewed at battery stepdaughter. Bolling Washington and on a The evi- Force Base. SA questioning; dence showed that primarily convinced SA Richardson began children to let him commit the indecent acts took notes. The interview between by giving money telephone privi- By them 9:00 and 9:30 a.m. the time the interview leges, letting spend night approximately them p.m., appel- concluded at 2:30 Appellant friends. involving stepson’s and his wife also had two lant admitted acts children, biological breasts, genitals, touching but neither stepdaughter’s of these chil- dren was putting stepdaughter’s involved the offenses. his hands down his added.) (Emphasis Defense counsel did not genitals, watching a

pants touching her vibrator, object the witness’s state- or indicate that stepdaughter masturbate with non-responsive. tongue ment was hitting stepdaughter on the spoon. released with a examination, the trial counsel On redirect p.m. go to lunch at 2:30 questions that rebutted asked SA Richardson agents had concocted the notion that the OSI p.m., appellant returned at 4:30 When he not true. Then the a confession presented typed statement that was following colloquy place: took based on the notes taken SA Richardson. Q: you if he And defense counsel asked testimony, According investigators’ time asked for counsel at the before statement, reading appellant re- without statement, signing is that the written it, stating seeking that he fused to correct? legal counsel. Honor, Objection, that was not ADC: Your statement, trial, during opening trial At my question.

defense counsel stated: question, counsel? MJ: Overruled. County You will hear that the Loudoun Office, members of the you repeat question? Sheriffs as well as WIT: Could detachment, Sergeant interviewed AFOSI statement, making á so now MJ: You were Gilley; rights read him his on question. ask a occasions; occasions, two and on those he Yes, ATC: Your Honor. Prior to the end rights questions waived his and answered accused of the interview when the agents. those and he made statements to counsel, he asked ask for for you any Now won’t see sort of evidence as that? prior counsel at time audiotape videotape far as or as to what No, WIT: sir. Sergeant Gilley investigators said. The added.) Again, (Emphasis defense counsel said, you you he are will tell what object to reference to did not you But will asked to believe that. what request for counsel. any sort of written statement. not see is testimony You will hear written Richardson was followed to the stand SA prepared. prepared It direct, statement was who, by Washington, talked SA and, agents they present- when the OSI appellant made about the admissions Sergeant Gilley sign, ed it to Technical exam- the course of the interview. On direct Sergeant Gilley, because the ination, he refused questions trial counsel asked no in that state- words and acts and deeds sign the draft about refusal They ment not true. were false. were request or his for counsel. On statement cross-examination, counsel elicited The first witness called the Government Washington that the reason for the from SA Investigator was Sheriffs Canham. August 1 interview was to obtain a confession him, cross-examining defense counsel estab- Following questions appellant. about advised of his lished that preparation of the state- SA Richardson’s rights, cooperative, and that the inter- ment, following exchange place: took Next, taped. the Government view was not given Q: that statement was And when Richardson. On cross-examination called SA Gilley, sign it? Sergeant he refused to length trial defense counsel established the interview, Sergeant Gilley and that SA Richardson didn’t look at A: statement, legal. typewritten just requested followed prepared He statement. question by this and answer: added.) Again, counsel did not (Emphasis response. object to the witness’s Q: Okay, that statement was and when Gilley, presented Sergeant he re- examination, the trial On redirect assistant that, is that not true? fused to point: counsel revisited the correct, Washington, you mentioned Q: Agent A: That’s Sir. He said he that, defense counsel’s answer to wished to seek counsel. questions, Sergeant it out in narrative that when Tech wrote and wrote Well, Gilley came didn’t he comes back some two back from lunch he form. that, Agent even read the statement hours later. Remember and that is prepared important Richardson had and he im- hours later because two what mediately asked counsel. does he have time to do? He has time now realize, “Gee, I’ve said all these state- A: Yes. my rights ments and were advised to me.” Objection, Your ADC: Honor. court, you Members of the are allowed to MJ: Overruled. your use common sense. What are some added.) (Emphasis rights Anything that are those advised? you say you against can and will be used examination, question- Also on redirect a court of law. ing Washington SA as to whether a provided prepara- advisement was after the later, heSo comes back two hours doesn’t statement, following exchange tion of the Despite at even look the statement. de- place: took agent say- fense’s cross-examination of the Q: typed when the So document is then ing, “He didn’t that statement because

given accused, is he then read anything in that statement wasn’t true. rights again? statement, Agent You wrote that so and so, “Sir, you?” didn’t he never even A: No. looked at the statement. He asked for his Q: Why not? attorney.” Remember that Constitutional A: Sergeant Gilley’s this —in Tech have, requirement if that we someone asks case, got we into the interview room attorney? They for an couldn’t force him immediately get and when we did sign They to that statement. out weren’t room, got into the he turned into — get speak to him. And we will about that around legal and said he wants coun- theory a little later also. sel. Q: Okay, particular so that is this case. your ordinary proce-

But in terms of dures, you rights again? would read Their other [sic] theme here and A: If in expanded that was just time as investigators lying. was that the are it, may such before we went into he experience Remember these been, advised, he would be “You Inspector had. You had Canham

are still under advisement”. thirty years who had over with Child Pro- you tective Do think Services. he has seen Q: Okay. just clear, INow want to make Special a few cases before? You had did the typed accused read the state- Agent Richardson who for the DEA. works ment? Agent Washington You had who works for No, A: sir. guys coming These in OSI. three are added.) (Emphasis Defense counsel did not lying just get guy? here and this That object. thing is another that the defense wants Finally, during closing argument you conspiracy to believe here. There is a findings, argued: trial counsel get agents. the accused That is p.m.] they [2:30 Then around putting credibility allowed—the their in issue here. And goes obviously, specifically, guess points accused to lunch. So this I the two main spotlight that, suspect they harped is not the on the where on was the fact on a they grilling They go are him. him Agent Washington signed, let form that he they impression lunch and are under the said he was at an when it was interview going they just being that he is to come back because that he was briefed it and he writing going signed receipt Inspector discuss a statement. He is Canham’s briefings come back and write a statement out or he notes then went to an sign a statement from the that the clemency purpose opportunity

The of the second interview was appellant the to submit they typed up obtain a confession. And 1105 and Manual matters under RCM (2000 ed.).1 Gilley Courts-Martial, something Sergeant sign and for United States for say Sergeant Gilley sign They authority it. convening wouldn’t received twelve The it, Sergeant Gilley appellant. he decid- wouldn’t read from defense counsel and matters your petition rights. his But common informed ed to invoke The defense counsel’s ways your knowledge convening authority of that client had sense and the convicted, somebody types say unjustly that if also asked that the world been you sign, you years read it four and something up for be reduced to the confinement true, brig, you if don’t it. And where it is not served at the Charleston be investigator they typed pro- treatment said what there was a sexual offender (defense they syllabus synopsis a testified about. attached a gram was what counsel they put Sergeant petition). in front of program So when to his 1105 it Gilley, refused to it because was he clemency general appellant’s theme of not true. wrongfully appellant was package was that clemency. granted and should be convicted findings, trial argument In his rebuttal general beyond 3 and went Enclosures appellant’s invoca- again counsel touched on negative comments on and included theme right to counsel: tion of his judicial system, as Air as well Force They argument the sec- said in—-their specific individuals. pointed criticisms of get out to a confession. ond interview was appellant’s confession, why was a letter get let Enclosure 3 they If wanted to a letter, addressed to Why In this guy mother. go to lunch for two hours? court-martial, appellant’s but the provisions ones amended after are identical to the 1. All Manual court-martial, impact on the minor and has no appellant’s amendment was in effect at time 1105(b) opinion. content of this RCM unless otherwise indicated. convening authority, “I can’t she stated that [appel- Air Force has turned on

believe the conclusion, say. I In there isn’t much can them,” you “If when he needs can’t lant] get David’s suppose I our efforts to this, through Addi- see it’s unbelievable.” charges appealed or overturned will be tionally, commenting appropriate- in on the ignored by Air Force as well as the sentence, stated, ness of she “You thing I know one for U.S. Government. his life is it should know ruined —which be forever, my sure it has ruined life as well guilty.” he was longer respect for as David’s. I no Enclosure was letter from govern- the armed forces and the federal father. This letter is a vitriolic attack on the way they treating ment for the are their reads, judicial system. Air Force and its It flag longer no people. The American flies pertinent part, as follows: (I flagpole my yard on the front took the my opinion getting David is a raw deal. down) longer to. I pole it used no —like David, No man like that has served his happens to nation or our care what our job country and so dedicated to his as government. Air Force After what the go Air Force air have to controller should my my family has son and I lost done this____ through anything like everything. I faith in about Sometimes ____The thing kanga- whole damned was a think has turned on me. God his back guilty court. David he ever roo before eyes my everyday night Tears come to military helped went to court and the it warning. night without Sometimes at it They rank, along. good saw man with a me of a man haunts with visions dressed service, years trouble, never been orange coveralls his hands handcuffed way and close to retirement and a to take behind his back and his ankles shackled. away. it It would save Government money price pays lot of and make the Air That’s the an innocent man Force look good. plan That was the Air you and the serving country. hope low-lifed lawyers, military jury, judge, Force lying good along bastards with that no [sic] high Force ranks it wanted ended kids, whore and her bastard that lied about days. They put away in two wanted David David, enjoy now, your freedom and burn they good. so all of them could look All Everytime something in hell later. [sic] [sic] are a bunch of low-lifed bastards [sic] happens you why, bad wonder then they I’m as far as concerned. All want me, you say forgive can sit back and God get go was to over so could home. sorry part plan I’m I was of a to convict an jurors I talking overheard the the hall- family man innocent and make his suffer way. They the knew kids were coached for the of their life. You will rest bear Man, lying, but wanted it over. heavy of burden and shed the tears cross good. They that make the Air Force look your Everyday like I for the do. rest saved the Federal a lot of Government doing. life as I will be No man deserves money. game plan. Put David That’s punishment like this unless he’s a killer on Gilley away years, for ten rank take his military death-row. I think when the or and retirement and him for life as brand government something does like your enough dishonorable. It’s bad to lose nothing [sic] their but a chicken-shit bunch family and be lied about and be branded firing squad that have to face the should spend years prison, life. But 10 for to they justice because don’t know what is. eai’eer, your your personal belongings lose judges, lawyers, Air Force Those dumb ass your and never to two children be able see jurors together all thrown wouldn’t belong you again. that to That’s what a good lawyer. In civilian make one civilian person gets you marry lying tramp when they laugh I life at the dumb asses. I wish person whore who wouldn’t know a decent man, up a rich I’d shove all this their they give kicked her in the ass and [sic] it, entirely up you to brains, ass. As I see it’s her a new set of which she doesn’t grant appeal an his sen- have. David or reduce 120 Personally probative value so that reference to his I think he has suffered

tence. maybe you’ll enjoy attempt enough. If not then in an silence cross-examination me, being having like flashbacks and shed- it an intoler- impeach his alibi carried with night ding in the middle of the tears ably prejudicial impact entitling him to a new living day by day. with it Ohio, 610, trial.); Doyle v. 426 U.S. 96 S.Ct. (1976)(Use 2240, impeach- 49 L.Ed.2d 91 copy The twelfth and final enclosure is at the purposes ment of an accused’s silence (e-mail) electronically an mailed statement receiving Miranda time of arrest and after attacking brother warnings process.). violates due legal system appellant’s defense Force incompetent. counsel as government Doyle Hale and addressed by the No affidavit was submitted right on the accused’s to remain comments counsel, stated, his affidavit implicates silent. This case comments on the my trial dis- “Neither of defense counsels right analysis, accused’s to counsel. The my cussed with me the content of father’s however, parallel regarding that is clemency tell me that letter other than to silent; right rights both flow from to remain words in it and that there were some curse the Fifth Amendment. See United States v. asking were him to rewrite it. did not (1st Cir.1984)(anal Daoud, 478, 741 F.2d 480 my clemency father’s letter be direct ysis regarding right to remain for comments n my clemency package.” included in counsel); as for silent is same (9th Kallin, 689, States v. 50 F.3d

United DISCUSSION Cir.1995)(right in Mi to counsel included implicit warnings randa and therefore carries It is settled that the Govern well penal no invocation carries assurance may ment not use a defendant’s assertion ties). rights his Fifth Amendment as substantive against California, evidence him. Griffin recognize also We 614, 1229, 609, 14 L.Ed.2d 380 U.S. 85 S.Ct. holding per that the is (1965); Court’s Government Palmigiano, see also Baxter v. 308, 319, 1551, response” to make “a fair to claims mitted 96 S.Ct. 47 L.Ed.2d U.S. 333, defense, (1976); Fifth Oregon, Lakeside v. made even when a (1978); 1091, L.Ed.2d 319 98 S.Ct. Amendment is at stake. United States (2000). Ruiz, Robinson, States v. 54 MJ 138

United 485 U.S. 108 S.Ct. subject rule are (1988); Violations of the Doyle, supra 99 L.Ed.2d 23 see also Griffin Chapman v. (“It harmless error review. goes at 619-20 n. 96 S.Ct. Califor nia, 824, 17 L.Ed.2d 705 saying post- without that the fact of almost prosecu arrest silence could be used tion to contradict defendant who testifies Manual, 301(f)(3), supra, pro- Mil.R.Evid. exculpatory version of events and claims vides: upon police told the the same version accused official The fact the fact of earlier arrest. that situation questioning and in exercise of under impeach silence would not be used to the Fifth Amendment Constitution exculpatory story, challenge rather to the but 31, or Article re- of the United States testimony to behavior fol silent, defendant’s as his refused to answer a certain mained States, arrest.”); counsel, lowing v. United requested requested Walder question, or 354, 62, 65, 98 L.Ed. 503 questioning terminated is inad- 347 74 S.Ct. that the be U.S. (1954)(The objection against availability the accused. an to the missible does improper use of evidence affirmative Analysis rule states that The Drafters’ of this a shield provide not the defendant “with it Court deci- follows United States untruths.”). Rob against contradiction of his Manual, A22-7, supra; see United sions. against pros prohibition the inson addresses Hale, 171, 2133, 45 95 S.Ct. States U.S. testify, failure to (1975)(An upon comment ecutorial dur- L.Ed.2d 99 accused’s silence corollary right to remain significant of the ing interrogation which is police lacked witness.”). analysis analysis invokes the “invit- Accordingly, the in Robinson Such silent. response” reply” rule. United ed or “invited applies to this case. Young, 470 U.S. 105 S.Ct. States Robinson, in The defense counsel in clos- 1038, (1985), citing Lawn v. 84 L.Ed.2d ing, argued several times that the Govern- 311, States, 339, 78 S.Ct. United defendant, did ment did not allow the who reviewing In whether L.Ed.2d 321 testify, explain story. not to his side of the by appellant deprived of a fair trial an “Following closing pres- and out of the comments, question appellate such jury, prosecution objected ence of the to whether, within court must resolve is “viewed the remarks of and contend- defense counsel ” trial, ... the context of the entire defense ‘opened ed that the defense had the door.’ ‘clearly the re- counsel’s comments invited 28,108 judge at The trial U.S. S.Ct. 864. ” Lawn, Id., 15, ply.’ quoting supra at 360 n. rebuttal, agreed. prosecutor re- 311. S.Ct. marked that the defendant “could have taken explained you, anything the stand granted aspects There are two to the first he wanted to. The United of America States issue, ie., military judge whether the com- him, given throughout, opportunity has (1) by admitting plain mitted error: evidence explain.” Id. “Defense counsel did not ob- questioned by investigators, appel- that when ject closing request to this not (2) counsel, request lant elected to cautionary Nonetheless, instruction. allowing trial counsel refer to jury court included instruction the closing argument request for counsel may admonition that ‘no inference whatever by failing provide a curative instruc- be drawn from the election of a defendant tion. ” 28-29, testify.’ not to Id. at 108 S.Ct. 864. military judge 1. commit Did by admitting prosecutor’s error evidence that when Robinson held that questioned by investigators, appellant statement did not violate the defendant’s rights, request Fifth prose Amendment because the elected to counsel? opportu cutor’s reference to the defendant’s Appellant’s strategy, beginning trial nity testify “did not treat the defendant’s opening argument, defense counsel’s guilt, silence as substantive evidence of investiga was to discredit two of the three possibility testify

instead referred to the by implying appel tors fabricated ing opportunities as one of several which the prior lant’s oral statements based on their afforded, contrary defendant was knowledge stepchildren’s allegations. of his counsel, statement explain of his his side Appellant put investigators claimed the then 82,108 of the at case.” Id. S.Ct. 864. More statement, those fabrications into written over, prosecu Robinson held that where a appellant sign. which refused to response tor’s reference is a “fair to a claim counsel,” made defendant or his there is initially appel- Defense counsel elicited privi no violation of the Fifth Amendment request lant’s for counsel his cross- lege against self-incrimination. Id. examination of SA Richardson and SA Wash- ington. Consistent with In order to determine whether or case, defense counsel asked whether fair, “prosecutorial not comments are com appellant refused statement. SA ment must be examined context.” Id. at Richardson testified that refused to Ohio, citing 108 S.Ct. Lockett v. requested the statement and counsel. 57 L.Ed.2d 973 Washington testified that SA (1978)(Prosecutor’s repeated remarks “didn’t even read the statement” and “imme- the evidence was uncontradicted were not diately asked for counsel.” improper because defense counsel focused jury’s by outlining allegation attention on silence Faced with an that the Govern- evidence, contemplated during opening important defense ment fabricated not sur- by stating prisingly statement and to the court and trial counsel returned to these jury points that the defendant would be the “next of rebuttal on examination. redirect UCMJ, 59(a), theory prosecution’s rights. of stantial Art.

Consistent with the See 859(a).2 case, § agents trial counsel asked Richard- USC Washington son and to recount the close of military judge plain 2. Did the commit appellant’s Again, they stated interview. by allowing to refer to error trial counsel appellant sign the statement that declined to request for counsel in his find- appellant’s appellant reading it and that re- without by failing provide to a ings argument and quested counsel. curative instruction? subsequent More difficult are the ref object counsel not Defense appellant’s request erences to for counsel cross-examination; responses during these argument, closing the ab trial counsel’s however, redirect, object on defense counsel appropriate of instruction to the mem sence objec specifying the basis for his ed without only information was relevant bers that such objection, In of an issues tion. the absence of to the members’ consideration waived, admissibility of evidence are unsigned claim that the interview statement grant only will relief if the admission of we was false. plain error. such evidence constitutes Unit Powell, ed States v. 49 MJ 462-64 closing argument, In his trial counsel di- rectly appellant’s invocation of his referenced military judge Appellant argues that First, argued rights he on three occasions. by admitting committed error the testi- realize, “[appellant] that has time now mony Washington Richardson and ‘Gee, my I’ve said all these statements on cross-examination and redirect. Had the me.’ Members of the were advised to evidence, Government first introduced this court, your you are allowed to use common would be a different case. See United rights that are some of those sense. What (1997). However, Riley, States v. 47 MJ 276 Anything you say can and are advised: will above, opened as recounted defense counsel against you in a court of law.” Sec- be used by attacking veracity the door to rebuttal ond, argued, that Constitu- he “Remember agents, inviting response of the thus have, requirement tional that we someone agents suggesting an alternative those same attorney? They force asks for an couldn’t theory why appellant sign as to refused to sign They him weren’t that statement. Clearly, agents’ the statement. testimo- rebuttal, Finally, he get out to him.” ny did not read the statement argued Richardson and reason SA Arguably, was fair rebuttal. reference to Washington appellant to did not order SA fairly appellant’s request re- for counsel also appel- stay sign a statement was because theory of the case butted the defense they can’t do “requested counsel and lant why offering explanation as to an alternative that, anything further after members of statement, ie., appellant did not why they get it.” court. That is didn’t lawyer appellant wanted a to review the contrast, argued, it, By counsel con- signing whether or not statement before case, However, ap- might it. also sistent with he read lawyer the written statement logically requested pellant when faced refused statement, request not true. He also referred putting because was false argument, stating: “They say counsel’s scope of fair rebuttal. We need trial outside the it, event, ap- Sergeant Gilley wouldn’t read he decided question. not resolve this rights.” counsel ar- invoke his Defense pellant’s request for counsel was not used as sense, did not make guilt against gued him. that that scenario substantive evidence knowledge your but that “common sense it was error or not to allow Whether somebody ways say that if of the world testimony, given the context which the you sign, you read here, types something up for that there issue arose we are convinced true, you sign it.” don’t it and if it is not prejudice to sub- was no material Judge attempt Powell. appel- Sullivan’s to revisit Having prejudice to Senior 2. found no material rights, we need not address lant's substantial reviewing military- Carpenter, v. In the actions of the We noted United States Court, whether, (1999), given in a judge, we must ask the de- MJ this case, theory contexts, variety fense trial counsel’s com- commented that it is “has Robinson, prosecutor ments were fair. 485 U.S. at improper for a to ask the court Here, 108 S.Ct. 864. the defense counsel guilt infer an accused members to because jury’s why appellant focused the attention on rights.” In has exercised his constitutional confession, sign begin- Toro, (CMA refused to the written United States v. 37 MJ ning opening -with his statement. The de- 1993), improper held that it was to this Court appellant fense contention was that read right comment on the exercise of the sign it it statement but refused because related, closely Although remain this silent. by was fabricated SA Richardson SA specifically prosecu- has not ruled on a Court noted, Washington. previously As we have argument tion that an accused invoked his the defense could have been contra- right to counsel. by testimony agents dicted from the appellant sign it refused without even Carpenter, As lack we noted “the Nonetheless, reading it. both added objection of defense is relevant to a determi time, testimony to their that at the same prejudice” nation of because the lack of a invoked his to counsel. Be- objection is “‘some measure of the object cause failed to the testi- impact’ prosecutor’s improper minimal of a mony, testimony and since the contradicted (citation omitted). comment.” 51 MJ at 397 appellant’s claim that he read the statement objection, addition to the lack of this full but refused because it was case, overwhelming evidence of record lies, opened we find that defense counsel appellant’s guilt. Although demonstrated testimony door use of this for that argument appellant’s trial counsel’s tied ex purpose. limited right directly exculpatory ercise of his his (that story he did not the written state appellant’s Defense counsel’s mention of ment because it was full of lies fabricated closing argument counsel election Washington), SA Richardson SA was consistent with his theme and consistent exculpatory story implausible for several purpose with the limited for which we find First, premised reasons. it was on the col opened. the door to have been the other On falsity by investigators laboration three hand, repeated appellant’s references to jurisdictions. from two different The first request neg- for counsel could have reflected civilian, investigator only was a when the atively upon rights by the invocation of those military case was turned over to the did SA leading significance the members to attach a Washington in Richardson and SA become beyond to such invocation that went fair re- Second, appellant volved. admitted to com appellant’s allegation. buttal of mitting the offenses of which he was convict Nonetheless, since defense counsel did not ed, investigator both to the civilian and then instruction, object request or a curative we Washington. later to SA Richardson and SA grant only military judge’s will relief if the Third, directly sup the admissions were plain sponte failure to instruct sua error. ported by testimony wife Southwick, See United States MJ stepchildren. (2000); Boyd, United States MJ (2001) (“Because Although we are troubled trial counsel’s 217, 222 the defense did not repeated appellant invoking references to request impact an instruction on the of a objection to counsel without and with- punitive discharge temporary disability instruction, retirement, upon overwhelming out grant only based we will relief if the military appellant’s guilt implausi- evidence of judge’s sponte failure to instruct and the sua Powell, error.”); 464; bility appellant’s exculpatory story, we 49 MJ at (CMA Fisher, prejudice 21 MJ 327 hold that there was no material 1986). rights in substantial this case. appellant argue is for II best chances an has to

ISSUE clemency by convening authority.” the Id. Appellant argues that he received ineffec- post-trial counsel in the tive assistance of case, In this counsel submitted phase submitted when his defense counsel convening authority. twelve items to the highly inflammatory convening letters to appellant’s arguably The letter from mother authority. argues The that the Government appellant’s plea clemency. undercut for The simply impassioned pleas letters were for appellant’s letter from father was acerbic. It prosecu- that corrective action criticized scathing a directed toward trial diatribe tors, authority, convening not the and contin- counsel, counsel, members, trial defense strategy by maintaining the defense trial ued authority, judge, convening and the lying appellant’s and wife were and children whom the letter was addressed. The e-mail charges. innocent of the that he was appellant’s from brother echoed statement appellant’s the theme of father’s letter. guarantees Amendment The Sixth to effective assistance of counsel. impossible imagine any possible It is military, extends assis clemency arising father’s preparation tance and submission statement, you hope “I low-lifed bastards post-trial v. matters. See United States along lying, good with that no whore and her (CMA 1994). Fluellen, 40 MJ kids, [appellant], bastard that lied about en- now, joy your freedom and burn in hell la- adopted We Likewise, impossible put ter.” it is Court’s test for effectiveness of counsel artic statements, positive spin on his father’s such Strickland, presump ulated as well as the as, military govern- “I think when the or the competence announced in United tion of something [sic] ment does like this their Cronic, v. States nothing but a chicken-shit bunch should 2039, 80 L.Ed.2d 657 United States firing squad they have to face the because (2000), citing Grigoruk, 52 MJ justice don’t know what is. Those dumb ass (CMA Scott, MJ judges, lawyers, jurors Air Force all 1987). adopted three-pronged We have together good make one ci- thrown wouldn’t presumption if the of com test to determine lawyer.” ipsa loquitor. vilian Res petence has been overcome: authority expect convening We that a (1) true; so, appellant’s allegations if Are clemency power the exercise will antic- explanation “is there a reasonable for ipate professionally and deal with the heart- counsel’s actions”? disappointment family felt and confusion of a (2) true, allegations If the are did defense trying trial, conviction, comprehend advocacy “measurably counsel’s level of fall sentencing daughter. or son How- performance [ordinarily ... ex- below the ever, go beyond disappoint- far letters pected] lawyers”? and of fallible scathing ment confusion and contain a (3) ineffective, If a defense counsel was is system partici- and its denouncement of the that, probability ab- there “a reasonable pants helpful cannot be as to an viewed errors,” there have been a sent the would preju- appellant’s request clemency. different result. impact dicial father’s letter was Polk, Id., quoting States v. 32 MJ United compounded by appellant’s brother’s letter (CMA 1991). 150, 153 Appellant’s letter. affidavit and his mother’s only counsel mentioned that his defense dis- Responsibility for tactical and stra his fa- appellant the content of tegic post-trial decisions are within the con cussed asking his responsibili ther’s letter and that were trol of counsel. Counsel has ty judgment” “make an evaluative on what father to rewrite it. are concerned about We letters, authority, impact convening the cumulative of all three items submit especially appellant’s fa- to so advise his client. United with the content of States (CMA 1994). rewritten, MacCulloch, which, ther’s letter even 40 MJ MacCulloch, inappropriate. we noted “One last As case, Accordingly, to a we hold In this was sentenced effective assistance of counsel discharge, confinement for ten denied dishonorable post-trial phase of his court-martial. penalties. Appellant years, and associated authority disap- convening petitioned

prove his sentence and allow his administra- DECISION discharge. Alternatively, tive counsel re- The decision of United States quested in confinement to four reduction Appeals of Criminal years designation brig Force Court of the Charleston authority’s confinement, convening action are set aside. place would as the which Judge The record of trial is returned appellant lengthy prison a allow “serve of the Air Force for sub- imprisonment in the Advocate General sentence without U.S. Leavenworth, exercising general an officer Disciplinary mission to Barracks at Ft. jurisdiction appellant over for argued it al- court-martial KS.” Counsel also that would post-trial clemency of a new appellant superior a consideration low access to sex offend- petition judge recom- and staff advocate’s program er run the Air Force at the Thereafter, mendation, and action. the rec- brig. convening authority Charleston The grant any clemency. By ord will be returned to the Court of Criminal did not review, letters, Appeals further and then Article attaching these trial for defense counsel 67, UCMJ, 867, apply. § may 10 USC shall have dashed “last best sentencing assign- chance” for relief or for

ment to Charleston for sex offender treat- CRAWFORD, Judge (concurring in Chief ment. result): part and in the Addressing three-pronged Polk test to right right to counsel1 and the not The competence, determine all three we answer incriminate oneself2 are hallmarks of our questions in the affirmative. find that We may adversary system. But a defendant not trial in defense counsel this case failed to use the shield of these constitutional judgment make an evaluative items what prevent contradicting the Government convening authority. to submit to the We and reasonable inferences that untruths explanation can find no reasonable for coun- logically the factfinders could draw from sel’s inclusion of these find letters. We also defense cross-examination.3 the inclusion of these fall letters to “measur- may ably performance not introduce as [ordinarily below the ... Government in expected] lawyers.” Finally, substantive evidence the first instance of fallible while relief, certainty person right a invoked his or her to silence we cannot know with what However, any, convening right authority might to counsel.4 these and/or granted, may any probability impeach there is a reasonable invocations be used to wit- letters, Moreover, ness, including a defendant. when absent admission of these door, opens there would have been a different result. As the defendant the Govern- MacCulloch, may forcefully in rebut the evidence and the submission to the conven- ment ing authority contemptuous Remaining of the and abu- its reasonable inferences.5 silent “effectively remaining sive letter from father the face of an accusation or negat[ed] any plea clemency.” by invoking right any for 40 MJ at silent one’s without Thus, least, very explanation guilt. 240. at the removal of at the time is evidence of may explanations these letters would have resulted a mean- There be reasonable false”; clemency “I ingful hearing. one’s silence—“The statement is See, Havens, prosecutions, e.g., 1. all the accused shall 3. “In criminal enjoy (1980). ... to have the Assistance of 64 L.Ed.2d 559 Const, Counsel for his defence.” U.S. amend. VI. See, California, e.g., 4. Griffin S.Ct. 14 L.Ed.2d 106 compelled person ... 2. “No shall be crim- against inal case to be a witness himself....” Havens, supra. at amend. V. 5. See Id. it”; you”; question, an don’t trust “I want to think about while Beason was unknow- ing bystander. “I want to know what others have said We find defense counsel’s before However, stressing only expla- questioning, not that infor- make statement.” these currency regarding not the inference that mation the hidden nations do undercut Beason, silence, explanation, without is evidence of not come from but also that guilt. Washington, an came from individual with record, prior drag simply did more than cross-examination, On defense counsel dispel assumption provided that Beason brought out that invoked his It the information. could have created in the counsel because untruths misleading jury inference to the typewritten statement. The Government Washington guy.” was the “bad assertion, had a to rebut this to include 220 F.3d at 968. reason, falsity. arguing its For this I do not agree majority, rationale of the Havens, Likewise, in 446 in concur the result. 620, 1912, 100 L.Ed.2d U.S. S.Ct. 64 559 (1980), prohibited the Court the defense from Appellant, like the defendant in United in using a constitutional as a sword (8th Beason, Cir.2000), States v. 220 F.3d 964 prevent order to the Government from con- sought advantage to take of a constitutional tradicting theory of the defense the case. right and use it as a sword. The defense in recognized that in The Court Walder Unit- sought advantage Beason to take of the rale States, 354, 62, ed 347 U.S. 74 S.Ct. 98 L.Ed. States, 123, in Bruton v. United 391 88 U.S. York, (1954), 222, 503 Harris v. New 401 U.S. 1620, S.Ct. 20 L.Ed.2d 476 This rule 643, (1971), Oregon 1 S.Ct. L.Ed.2d trial, provides joint that at a co-defendant A’s Hass, 714, 1215, 95 S.Ct. confession, B, implicates which co-defendant (1975), impeachment L.Ed.2d 570 with ille- against is not admissible B. In limine in- gally permitted obtained evidence was be- inadequate structions would be because co- cause of what the defendant said on direct through defendant B cannot test cross-exam- repudiated examination. “These cases in ination the evidence set forth A’s confes- States, Agnello in [v. statement United sion. 4, (1925),] 70 L.Ed. 145 that U.S. Beason, In evi- introduced Government may illegally no use at all be made of ob- kingpin dence that Beason was the who was tained at evidence.” S.Ct. selling drags hiding from his track while 1912. in hundreds of thousands of dollars its inside Havens, Appeals In the Court of held that compartments. drag kingpins, most Like only illegally evidence seized could be used to Beason had some runners. One of these was impeach particular if it contradicted a state- Washington. an individual named Defense by during ment made the accused direct Agent Hempen FBI counsel asked whether Accordingly, since a T-shirt examination. arrest, drag Washington, prior who had a luggage tainted taken from Havens’s was concerning was the source of information evidence, used, it could not be because Ha- money where the was hidden the track. nothing his direct vens was asked judge argued The and the trial Government luggage. testimony the T-shirt or The about agreed question opened that this the door for Appeals relied on the statement Court of also agent testify other infor- different about nothing Agnello Agnello that had done “to by provided Washington mation —informa- respect justify cross-examination ownership, that the track’s how tion revealed by evidence claimed to have been obtained collected, money money how the Id. the search.” given Washington, giving who concerning it in the directions where to hide reversing, Court restricted appeal, Eighth rea- track. On Circuit Agnello the reach of to cases of cross-exami- soned: having a connection with nation too tenuous subject by examination to opened direct theory of defense at trial was Beason’s evidence. permit impeachment tainted Washington the events orchestrated above, Hass, mentioned concur Relying High Court For the reasons on Harris I and concur on in the result as to Issue objective that the of the exclusion- indicated Issue II. ary extending it to rule is served without

legitimate cross-examination needed to satis- fundamental,

fy truth-seeking goal of our SULLIVAN, (concurring part Judge legal system. Id. at 100 S.Ct. 1912. part): dissenting in Overview This is not an instance where there was an opening inadvertent of the door. From the majority, part as its error opening through argument statement final I, analysis on Issue has examined record between, points in and at numerous the de- as a whole and determined that “there was fense set forth their of the case: that prejudice no material substan typed the statement who had rights in tial this case.” 56 MJ at 123. false, questioned appellant was and when he justifies It its conclusion on the basis of the reviewed written statement and its falsi- trial, overwhelming evi context of this “the ty, requested he counsel. Defense counsel’s appellant’s guilt,” implausi dence of and “the testimony eliciting invoked a bility appellant’s exculpatory story.” Id. conscious, right constitutional inten- holding clearly at 123. is inconsistent Such tional act to undermine the law enforcement plain approach with the error of this in Court support theory Powell, officers and the defense 460, United States v. 49 MJ 464 Thus, (1998). Ruiz, the case. the had Government the See v. 54 United States MJ (2000) 138, 144 (Gierke, J., part concurring to rebut all reasonable inferences set in dissenting part) in in by forth the the result and defense. (disagreeing majority preju that “unfair argument, As to the trial counsel’s there impact jury’s an dicial on the deliberation is theory was no error. The defense of the error”). plain element of appellant gave coopera- case was total withdrawal, I sense continued albeit sub tion until sought get him to silentio, by majority of this Court sign a false statement. The defense evoked plain error dicta1 of United States v. theory numerous times the trial. Tanksley, Powell. See United States v. 54 judge A required trial is not to count the 169, Ruiz, (2000); 173 MJ responds number of times the trial counsel 138-43; Kho, supra at United v. 54 States theory, fact, the defense and in some of the 63, (2000); MJ 65 United States v. South- prosecution’s statements as to the wick, (2000). 412, applaud 414 53 MJ I paraphrases the case are of what the defense majority’s return to the more conventional setting throughout forth the trial. As approach plain outcome-oriented error Military Force Court of Review once previously by followed this Court United observed: Fisher, (CMA 1986). 327, States v. 21 MJ 328 dance, A criminal trial is not a tea Wilson, generally See v. 54 United States MJ adversary proceeding to arrive at (2000) (Sullivan, J., 57, concurring 60-62 may forcefully urge truth. Both sides part dissenting part), citing United positions long sup- their so as are Olano, 725, 113 1770, States v. 507 U.S. S.Ct. ported by Considering the evidence. (1993). 123 L.Ed.2d 508 toto, closing argument trial counsel’s I Issue was within the of fair bounds comment considering (Plain Error) the state of the evidence. Argument Trial Counsel’s 1016, 1023 Rodriguez, matter, United v. 28 preliminary my States MJ As a I must note (AFCMR 1989). disagreement majority with the trial Powell, 460, (1998), Olano, 725, 1. United States v. 49 MJ 465 under States v. U.S. United particularly question addressed the whether the S.Ct. 123 L.Ed.2d 508 It did not Appeals required purport proper plain Court of Criminal re- to address the error test for verse a where it error conviction found our Court. ac- rights the substantial closing argument prejudices in his counsel’s references request counsel cused. appellant’s pretrial right to counsel negatively” on his “reflected added.) (Emphasis and, therefore, at error. 56 MJ constituted by the language has been viewed Similar Robinson, 123. United States remedy “authorizing] no Supreme as Court (1988), 25, 32, 99 L.Ed.2d 23 ‘affec[t]’ does substantial unless the error clearly as “[W]here said: Court Olano, 507 rights.” States v. See United prosecutor’s reference to in this case the 735, 113 It has been at 1770. also S.Ct. testify fair opportunity to is a defendant’s place on the convict construed to the burden made defendant or his response to a claim his trial result person prejudice to show ed counsel, think there is no violation we record, and on the the entire not based on in this ease were privilege.” The references at harmlessness. Id. to show Government sugges- light, there was no proper in this 734, 113 S.Ct. 1770. trying prosecution was to use tion that the 59(a), to substan- this evidence of exercise applied has Article This Court tively appellant’s guilt. Even I were show UCMJ, differently has where error somewhat to find that these references If accused. objected to at trial been errone- of his to counsel were exercise of constitutional or is a violation the error instructions, limiting I specific norm, required ous without that the Gov- we have codal unobjected neither obvious nor would find such errors to error ernment convince us record of based on the entire substantial. was harmless Lucas, 1 USCMA trial. United States See majority’s preju- Concerning the “material (1951); 19, 23,1 States v. United CMR analysis, agree rights” dice to substantial Lee, CMR USCMA military appropriate in a that this factor is (1952). regal’d, In we have followed this i.e., case, there was plain error a case where (Kotteakos v. Supreme case law Unit- Court argu- objection prosecutor’s no at trial to the 761-62, 764-65, States, 750, 66 328 U.S. ed 59(a), UCMJ, generally Article 10 ment. See (1946)) 1239, Fed. 1557 and 90 L.Ed. S.Ct. 859(a). § I note that under con- also USC 59(a), 52(a) applying Article R.Crim.P. doctrine, there is a re- plain error ventional UCMJ, objected to errors. determining whether quirement Nevertheless, unobjected respect with unobjected accused’s to error affected an level, has the trial this Court to error at v. rights. States Wil- substantial See United UCMJ, 59(a), consis literally applied Article J., son, (Sullivan, concurring part supra plain Supreme Court decisions tent meant, dissenting part). By that is 52(b). general See error and Fed.R.Crim.P. error, “unobjected as demonstrat- did the to” 327; Fisher, 21 at v. MJ ly States United trial, substantially record of ed the entire 265, 272, Plant, 18 States v. USCMA United Id.; the trial? see impact the outcome of (1969); 265, v. United States 39 272 CMR J., Kho, (Sullivan, supra States v. United 17, Pond, 22 CMR 17 38 USCMA Powell, Contrary supra at concurring). (1967); Stephen, 15 USCMA States v. United 464, that in again implied has once this Court (1965). 286, 314, 317-18, 289-90 35 CMR unobjected Court, of the our the effect plain places law the bur body of error This demon- of the case as error on the outcome prejudice from appellant to show den on the recognized of trial is a the record strated of as to the outcome record of trial the entire finding plain error. See United part of Williams, 47 v. United States the case. See 173; also Tanksley, at see v. 54 MJ States Hall, (1997); 46 142, 144 v. United States MJ Ruiz, 54 at 143. v. MJ United States (1997); 145, States v. Czeka 147 United MJ UCMJ, 59(a), with this is consistent Article 168, (1995); la, States 170-71 United 42 MJ approach. It states: (CMA 1993); Pollard, 41, United 51 v. 38 MJ (CMA 362, Strachan, 35 MJ may v. States finding of court-martial A or sentence Olano, 1992); v. generally United States an see ground of on the not be held incorrect 1770; 732, v. Johnson materially 507 U.S. at law unless the error error of States, 467, wife, 461, though some evidence even there was United S.Ct. (1997). 1544, pretrial 137 L.Ed.2d 718 This No Court’s this case of a confession. Powell, shifting” pronouncements in Accordingly, “burden even if remorse was shown. 460, temporarily upset body 49 MJ at this of inappropriate letters they longer controlling. law but are no See family castigating Force for such Tanksley, United States 54 MJ at 173. excepted, appellant’s position verdict were would not have been enhanced before the sum, plain approach error of United authority. convening Powell, 465, supra States v. at which re- quired appellant merely type show the majority, agree with and Unlike the legal right violated and then the Govern- adopt sense view the lower court’s common ment to show harmlessness based on the family letters. The Court Criminal trial, rejected by entire record of has been 770572, Appeals, 2000 WL found: Supreme Young, Court. United States letter, reviewing After his mother’s we 16-17 n. S.Ct. appropriate for find it to be submission L.Ed.2d It has said that courts authority. convening Neither the tone “studiously approach avoided” this prejudicial nor the content is or inflamma- “properly commentators have criticized” it. tory. simply plea that her It is mother’s approach rejected by Such has also been interpretation son is innocent. The “strange” by all the circuits and called appellant asks us to attach to this letter is legal noted commentator. 3A Charles See not reasonable. Wright, Alan Federal Practice and Proce- (2d § dure 856 at 344 n.26 ed.1982 & 2001 The letter from his contains emo- father Supp.). majority today of this Court anger tion and but it is consistent with the rejects silentio, approach, also sub albeit at trial that the and returns to our traditional and well-estab- wife coached the children to lie. This an- position following lished Court wife, ger is directed at his son’s Air Force precedent on this matter. It has reembraced lawyers, military judge. Accord- Fisher, supra 56 MJ at him, ing target his son was the for Air required, part as its error anal- “high Force ranks” so could look ysis, that the entire record of trial be exam- good. anger throughout His builds ined to determine whether the outcome of eventually everyone letter and he refers to impacted. the trial was involved in his son’s case as “low-lifed bas- Issue II hopes they in tards” and “burn hell.” He greatest contempt on Air bestows Ineffective Assistance of lawyers Force who he views as “dumb (Prejudice) Counsel describing asses.” After how he has lost On the ineffective assistance of counsel States, experiences faith in the United however, question, view, disagree. my I nightmares, constantly upset, and is the probability appel- there was no reasonable in appellant’s by telling father closes the con- lant’s case that different result would have vening authority, obtained if defense counsel had winnowed it, entirely up you I As see it’s father, mother, the letters of his and brother grant appeal or David reduce appellant’s clemency package. See Personally, sentence. I think he has Grigoruk, MJ enough. maybe If suffered not then (2000). Contrary pleas, to his me, you’ll enjoy being having like flash- guilty found of numerous sexual offenses shedding in the middle backs and tears physical abuse offense over a three- night living day by with it year period stepson with his and his two day. stepdaughters, ages who were from ten to affidavit is silent about fourteen at the time of trial. After his con- viction, attorneys whether he directed his not to continued to assert his stepchildren lying were at the behest of his include the letter. recognize essence, thority reading letter would to its basic this letter

Reduced loving parent and frustrated father who is from a who it was written devastated is convinced of his son’s innocence. This is powerless help his child. We refuse felt apparent anyone who reads the words that there is no room for candor to hold plea and is a standard from relatives clemency process. the However, the character of this friends. beg letter is different because rather than Dickens, A Christmas Carol 1. Charles mercy, sugar in ging for he leaves the the contempt for those he sees as bowl. His Unpub. op. at 8-9. tormenters is obvious. His ad his son’s Strickland As the Court said authority convening is sim monition to the Washington, U.S. Scrooge, ilar exhortation Marle/s (1984): 2052, L.Ed.2d 674 yourself (by righting wrong save son), system upon my has visited or suffer judging for claim of The benchmark my fate. Even if we were to conclude counsel’s ineffectiveness must be whether prong that counsel violated the first proper func- counsel so undermined letter, Strickland by submitting which tioning process that the of the adversarial not, appellant has not demon we do having pro- relied on as trial cannot be any prejudice. strated he suffered An ar just duced a result. gument can be made that virtue of his say of the fa- I cannot that the submission position, convening authority is one clemency process breach- ther’s letter “high ranks” excoriated the letter. high a successful claim ed this threshold for However, view, in our fa I, of counsel. like of ineffectiveness convening authority ther excluded the Appeals, find Air Force Court of Criminal appeal from his cast of villains because he of Strickland has prejudice prong justice. convening authority ed any convening Accordingly, We are convinced that au- not been met. would affirm. notes interview with him. It is kind of a stan- going get said,' go you if are let him to lunch procedure. He operating dard just type up Why it ‘Yeah, a confession? not probably have done shouldn’t him that, no, In- while he is there and have there.” Even I wasn’t go You saw and then to lunch? there at there spector Canham said he wasn’t there, Agent Washington. This is not the Gesta- but not the inter- first. He was you there, him po. You saw and he testified He but he did not sit views. Why just judge honesty. not get to on the interviews. keep him and have him a state- there conspiracy, they If to have had a were something him or like that. ment? Order court, your go back members because, back, They when he came he can’t and think. These three deliberations they any- can’t requested counsel and do agents, agents who these law enforcement that, thing after members of the further sixty years experience in law had over why they get it. That is didn’t court. enforcement, they you could don’t think egregious acts up have come with more military judge instructed the members The charged you than here? Don’t what is “The accused has an absolute as follows: maybe a little think we could have had silent. You will not draw to remain something penetration sodomy or or oral inference adverse to the accused from really get If out to like that? were testify The fact that he did not as a witness. they really guy, wanted to lie not testified must fact that the accused has stuck, why not add a few make sure it by you.” military judge disregarded be conspiracy things? There is no here. more not instruct the members about you. charges in front of You have the to counsel. Again, did not enter an defense counsel II ISSUE objection argument. trial In his counsel’s findings, coun- closing argument on case, taking action Prior argued: sel convening authority properly afforded

Case Details

Case Name: United States v. Gilley

Court Name: Court of Appeals for the Armed Forces

Date Published: Nov 15, 2001

Citation: 2001 CAAF LEXIS 1378

Docket Number: 00-0559/AF

Court Abbreviation: C.A.A.F.