United States v. Quintanilla

STATES, Appellee, UNITED

v. QUINTANILLA, A.

Guillermo Staff

Sergeant, Army, U.S.

Appellant.

No. 00-0499.

Crim.App. No. 9601468. Appeals

U.S. Court of

the Armed Forces. 5,

Argued Dec. 2000.

Decided Oct.

EFFRON, J., opinion delivered the CRAWFORD, C.J., Court, in which BAKER, JJ., joined. SULLI- GIERKE VAN, S.J., concurring part opinion filed an dissenting part. Cap- Appellant: Craig Carlson and For W. (argued); Lieuten- Stephanie L. Haines tain (on Mayfield Major Major Anthony A. P. ant Colonel David Rob and Nicastro brief). brief). (on Mary M. McCord Appellee: Captain Borgerd-

For Karen J. Judge opinion EFFRON delivered (argued); ing Lieutenant Edith M. Colonel Court.

INDEX PROCEDURAL 40 HISTORY DISQUALIFICATION PART A. JUDICIAL 40 I. INTRODUCTION 40 II. JUDICIAL CONDUCT 41

A. THE RESPONSIBILITIES A MILITARY 41 OF JUDGE B. PRODUCTION OF 41 WITNESSES C. STANDARDS OF CONDUCT —IN GENERAL 42 D. IMPARTIALITY 43 EX E. PARTE COMMUNICATIONS 44 DISQUALIFICATION F. UNDER THE AND THE UCMJ MANU- AL FOR COURTS-MARTIAL 44 G. PROCEDURE 45 III. BACKGROUND 46 A. THE RECORD OF TRIAL 46 B. POST-TRIAL PROCESSING 68 C. ADDITIONAL EVIDENCE THE CONCERNING CONFRON- TATIONS DISCLOSED DURING APPELLATE REVIEW 70

D. THE DESCRIPTIONS OF THE CONFRONTATIONS OUTSIDE RECORD OF TRIAL 70 E. DESCRIPTION OF AN EX PARTE COMMUNICATION BE- TWEEN THE MILITARY JUDGE AND TRIAL COUNSEL 74 F. THE MILITARY JUDGE’S DECISION TO LIMIT DISCLO-

SURE AT TRIAL 75 IV. DISCUSSION 76 902(e) A. WAIVER UNDER RCM 77 902(a) B. APPEARANCE OF BIAS UNDER RCM 78 C. REMEDY 80 PART B. EVIDENCE, INSTRUCTIONS, LEGAL SUFFICIENCY OF THE

AND EXPERT TESTIMONY 81 I. LEGAL SUFFICIENCY THE OF EVIDENCE THE SUPPORTING (ADDITIONAL I) CHARGE OF FORCIBLE SODOMY CHARGE 81 A. BACKGROUND 81 B. DISCUSSION 82 II. FINDINGS INSTRUCTIONS 82 A. BACKGROUND 82 B. DISCUSSION 83 III. ADMISSION OF EXPERT WITNESS TESTIMONY 83 A. BACKGROUND 83 B. DISCUSSION 84 PART C. CONCLUSION 902, FOR SUBSEC-

PROCEDURAL HISTORY COURTS-MARTIAL (a) (b). TIONS AND present produced lengthy case III. THE EVIDENCE OF WHETHER only complex proceedings not INSUFFI- RECORD WAS LEGALLY during post-trial consideration also A CIENT TO SUPPORT FINDING OF convening authority and the Court Crimi- AS TO THE CHARGE OF GUILTY Appeals. Charges against appellant nal (ADDITIONAL FORCIBLE SODOMY general April referred court-martial on to a CHARGE I AND ITS SPECIFICA- 14, 1996, and the court-martial held its first TION). court-martial, May session on 1996. The THE MILITARY IV. WHETHER composed which was of officer and enlisted JUDGE’S ERRORS IN FINDINGS members, contrary appellant, convicted to his INSTRUCTIONS CAUSED PREJUDI- pleas, sodomy of forcible of a child under the CIAL ERROR IN APPELLANT’S assault, 16, acts, age of indecent and indecent CASE. 134, in of Articles 125 and violation Uniform Justice, THE §§ V. WHETHER GOVERNMENT Military 10 925 and Code USC FAILED MATERIAL 22, 1996, TO DISCLOSE 934, August respectively. On TO THE EXCULPATORY EVIDENCE appellant court-martial to a bad- sentenced DURING APPELLANT’S DEFENSE discharge, conduct confinement for three COURT-MARTIAL, IN VIOLATION OF years, pay per forfeiture of month for $300 APPELLANT’S DUE PROCESS months, 36 and reduction to the lowest enlist- THE FIFTH AMEND- RIGHTS UNDER grade. Following post-trial ed various sub- THE MENT TO CONSTITUTION. missions, the case was transferred to a dif- convening authority, approved VI. WHETHER THE MILITARY ferent who ERRED IN ADMITTING THE 21, JUDGE July litigation these results on 1997. The EXPERT GOVERNMENT’S WITNESS’S Appeals at the Court of Criminal was marked OVER THE DEFENSE TESTIMONY by requests by numerous for extensions both COUNSEL’S DAUBERT OBJECTION. 17, 2000, parties. April On Court published Appeals affirmed in a Criminal below, affirm For the reasons set forth we (2000). opinion. 52 MJ 839 findings part and remand the balance proceedings. A of the case for further Part granted Upon appellant’s petition, we re- judicial opinion of this concerns the issue of following view issues: disqualification. Part B concerns issues of I. THE MILITARY WHETHER evidence, instructions, legal sufficiency of the ERRED THE JUDGE TO PREJUDICE testimony. expert HE OF APPELLANT WHEN ABAN- IMPARTIAL JUDICIAL DONED HIS PARTA. JUDICIAL FAILED ROLE AND THEREAFTER DISQUALIFICATION SUA DISQUALIFY TO HIMSELF SPONTE, TO RULE FOR PURSUANT I. INTRODUCTION 902, SUBSEC- COURTS-MARTIAL granted pertain a The first two issues (a) (b). TIONS AND of out-of-court confrontations between series II. THE ARMY COURT WHETHER witness, military judge and a civilian APPEALS ERRED TO OF CRIMINAL military judge initi- in which the THE OF SUBSTANTIAL PREJUDICE profanity. physical contact and used ated BY FINDING WAIVER APPELLANT Although information about the con- some WHEN AND NO PREJUDICE through placed the record frontations MILITARY JUDGE revelations, “INTEMPERATE” partial a series of IMPARTIAL JUDI- complete ABANDONED HIS a disclo- judge did not ensure that THEREAFTER AND facts was set forth the record CIAL ROLE sure of the Moreover, not re- DISQUALIFY the record does FAILED TO HIMSELF of trial. SPONTE, parte ex critical, discussion flect evidence of a SUA TO RULE PURSUANT

41 States, 163, 167-68, proceedings in the midst of the between the v. United 510 U.S. 114 (1994). counsel, 752,127 short, military judge and trial described 1 “In S.Ct. L.Ed.2d post-trial prepared by type things memorandum does the Many concerning trial counsel. of the details judges Graf, civilian v. do.” United States 35 (CMA the confrontations were not 450, 1992), denied, revealed at 457 cert. MJ separate investigative forth in were set 1085, 917, U.S. S.Ct. 127 L.Ed.2d 206 compiled during records the trial and imme- (1994). thereafter,

diately which were not made distinctions, however, important There are years available to the until defense several a federal civil- between after the trial. judge, ian aside from the absence of tenure Weiss, supra. discussed A federal civilian II. JUDICIAL CONDUCT judge typically jurisdiction has over all cases law, arising applicable under federal but a A. THE RESPONSIBILITIES general jur- does not exercise AOF MILITARY JUDGE arising isdiction over cases under the UCMJ. position military judge was estab- military judge may authority only A exercise through lished amendments to the Uniform specific over the case to which he or she has Military Code of Justice made the Mili- Weiss, 26; been detailed. Art. supra at tary Justice Act of 1968. The 1968 amend- 114 S.Ct. 752. In contrast with the civilian represented ments an effort to “streamline courtroom, judiciary, military judge a has no procedures court-martial in proce- line with court, Instead, clerk of or marshals. the give dures U.S. district courts ... and entirely dependent is almost [military judges] powers functions and more upon personnel the facilities and made avail- closely allied to those of Federal district convening authority able the for the con- 90-1601, judges.” S.Rep. (1968), No. at 3 Many duct of the trial. of the administrative Cong. 1968, pp. U.S.Code & Admin.News performed by functions clerks of court or 4501, 4503-04. As a legislation, result of that assigned U.S. Marshals civilian life are “judicial the has stature and military justice system the to the trial coun- authority in “closely ap- the courtroom” that sel, prosecutor. who also acts as the See proximate[s] judge.” that of a civilian trial 502(d)(5)(Discussion); compare RCM Fed. (1968)(remarks Cong. 114 Rec. Rep. 30564 of 17(a) (d). R.Crim.P. and Philbin). presiding is the author- ity in a court-martial responsible and is for B. PRODUCTION OF WITNESSES ensuring that a fair trial is conducted. Art. responsibilities The trial counsel’s include 26, UCMJ, 801(a) 826; § 10 USC RCM and duty presence to obtain the of witnesses Discussion, Courts-Martial, Manual for Unit- prosecution defense, for both the (2000 ed.). ed judge States has broad including of issuance orders for carrying discretion in responsibility, out this duty subpoenas active witnesses and for civil- including authority question to call and 703(e). ians. subpoena, See RCM Absent a witnesses, presence hold sessions outside the compelled testify a civilian cannot be at a members, govern of the order and manner of court-martial. dire, argument, and control voir military judge may A issue a of admissibility on warrant rule of evidence and compel presence attachment to a interlocutory questions, civil- contempt exercise witness, “only power and, upon probable ian proceedings, to control the cause in a duly adjudge believe that the witness findings bench and served with sentence. See, 46, e.g., 39(a), 48, 51, UCMJ, subpoena, subpoena a Arts. that the was issued in and 839(a), 846, 848, 851; rules, [applicable] §§ ... 10 USC and Mil. accordance with 104(a), 611(a), 614, Manual, appropriate mileage R.Evid. and su- fees and were tendered 801(a)(3) pra; (Discussion), 802, 803, witness, material, RCM to that the witness is 809, 912, 922(c), 1007(a); willfully and see also neglect- Weiss that the witness refused or specified commentary section elabo- appear place at the time and latter

ed rates, subpoena, and that valid excuse as follows: on no reasonably failure appears for witness’ judicial judge perform A must duties im- 703(e)(2)(G)(ii). appear.” RCM partially fairly. judge A mani- and who judges, proceeding

In federal mili- fests bias on basis in a contrast to civilian judges impairs tary power proceeding not have to treat the fairness do non-compliance brings judiciary disrepute. a con- into Facial subpoena as tempt Compare expression body language, in addition of court. Fed.R.Crim.P. UCMJ, communication, 47, parties § 17(g) give oral can with Art. 10 USC 847. court-martial, subject lawyers jurors, proceeding, if a in the civilian not or appearance judicial appear testify the UCMJ refuses to media and others receiving judge A be avoid subpoena, matter is referred bias. must alert to be- Attorney prosecu- may perceived prejudi- for havior appropriate U.S. civilian tion federal courts. See Art. cial. (Discussion).

47; RCM 809 Standards, pro- The ABA which similar have visions,2 require judges to self-re- exercise C. OF STANDARDS CONDUCT- straint: IN GENERAL exemplar judge The trial should be the military departments This Court and the dignity judge impartiality. The should looked Bar Asso to the 1972 American exercise over her conduct restraint his or (now ciation Code of Judicial Conduct sup- and utterances. The should Conduct) ABA Model Code of Judicial personal press predilections, and control ABA for Standards Criminal Justice temper and his or her emotions. The (ABA Standards) guidance proper con permit any person should not See, e.g., trials. duct criminal United in con- courtroom to embroil him or her (1999); Wright, v. 52 MJ States flict, personal otherwise avoid should 32, Hamilton, United States v. 41 MJ 39 pro- conduct tends to demean the which (CMA 1994); Loving, 41 United States v. MJ ceedings judicial authority or to undermine 213, (1994), 748, aff'd, 327 517 116 S.Ct. U.S. in the courtroom. When it becomes neces- (1996). 1737, Army 135 L.Ed.2d 36 The has sary judge for during the trial to com- expressly adopted the ABA to the ex Code witnesses, upon spec- ment the conduct of UCMJ, that it tent does not conflict with tators, counsel, others, judge or should Courts-Martial, for other Manual or rules firm, dignified, and do so a restrained 5-8, AR 27- governing Para. courts-martial. manner, repartee, limiting avoiding com- (20 1999).1 10, Military Aug Justice rulings reasonably ments and what is (2000 ed.) 3 of the ABA Model Canon Code orderly required of progress for judge provides perform shall “[a] trial, refraining unnecessary and from dis- judicial impartially of office and dili- duties paragement persons of or issues. gently.” of 3 are of Two sections Canon 6-3.4, Special Functions of the Tri- Standard (1) particular this relevance to case: Section (2d ed.1980). Judge al B(4) dignified requires judge patient, to “be a jurors, witnesses, regarded litigants, generally are and courteous to Such standards (2) B(5) others”; judges aspire lawyers, principles and should and and Section to which disciplinary judge primarily through by not ... are enforced “[a] establishes that shall advisory opinions, than prejudice.” action and rather words or conduct manifest bias or Court, id., 1, Chapt. cally adopted by adoption this see 1. For a discussion of the or modifica- by Intro., tion of and the mili- provisions regarding model codes standards contains similar Delzompo, tary departments, A. see Francis impartiality, dignity, and of deco- maintenance Military Judge Longer Impartial: Is When No See, proceedings. e.g., 2A Canon rum Counsel, Survey Suggestions A the Law comment, 3A(2), of for (3), Canon and comment. (June 1995). Army Lawyer at 3 Judges Code for States 2. The of Conduct United (1999), specifi- applicable judges federal

43 presented.’’ through disqualification particular cases. determination of the issues 801(a)(2) Flamm, The Manual Disqualifi- Richard E. Judicial RCM and Discussion. See (1996). 3A(3) jurisdic- many § of the Code of Conduct cation 2.6.3 45 reflects Canon (1999), tions, courts, pro- Judges which particularly in the federal ac- for United States judge patient, digni- vides that should be “[a] tions that violate codes of conduct do not fied, litigants, respectful, and courteous to necessarily provide disqual- a basis either for witnesses, jurors, lawyers, and others with judge judgment ification of a or reversal of capaci- judge deals in an official whom required by applicable law. unless otherwise ty....” Id. importance impar paramount of

D. IMPARTIALITY tiality does not mean that the “simply umpire in should act as a contest “An right accused has a constitutional accused.” between the Government and impartial judge.” Wright, supra, to an 52 Kimble, 251, v. United States 23 USCMA 140, citing Village MJ at v.Ward Monroe (1974). 254, 384, judge’s 49 CMR 386 ville, 57, 80, 409 U.S. 93 S.Ct. L.Ed.2d 267 34 complex, exercising role is for evenhanded (1972); Ohio, 510, Turney v. 273 U.S. 47 S.Ct. proceedings veering, control of the without 437, (1927). impartiality 71 L.Ed. 749 “ veer, appearing far or too to one side or crucial, presiding judge influ ‘[t]he the other has been characterized jury ence of the trial is neces walking “tightrope.” Shackelford, Court as sarily properly great weight,’ ... and 2 MJ at 19. jurors are ever watchful of the words that Particularly fall from him. in a criminal suggested A number of eases have judge’s apt last word is to be the disqualification applies to actions that decisive word.” United States v. Shackel extra-judicial, judi personal, are and not (CMA 1976) 17,19 2 ford, (quoting MJ Unit States, Liteky cial in nature. See v. United Clower, 15, 18, ed States v. 23 USCMA 48 540, 549, 1147, 510 114 127 U.S. S.Ct. (1974)(internal 307, CMR 310 citations omit (1994); Corrugated L.Ed.2d 474 In re Con ted)). 958, Litigation, tainer Antitrust 614 F.2d emphasizes (5th The Manual impor- also Cir.1980); In re Boston’s Children impartial judiciary, advising First, (1st Cir.2001). tance of an mili- 244 F.3d This tary judges that carrying when out their Analysis view is reflected in the Drafters’ court-martial, 902(b), Manual, in a they duties supra “must avoid RCM at A21-50. The law, however, undue parties’ presen- clearly interference with the case does not distin appearance partiality.” “extra-judi tations or the guish of between matters that are 801(a)(3) (Discussion).3 RCM “personal” “ju cial” or matters are judge care, authority must exert his with so dicial.” taken in a Actions the course of trial give appearance as not to even the may disqualification of bias for warrant where “it can be against party. or either Id. The shown that such either bias was directed judge charged ensuring against counsel, is also party that the a or its or in favor of “dignity counsel, proceedings party and decorum of the are or adverse or that “[cjourts-martial maintained,” as challenged judge, compensate should be in order to atmosphere bias, appearance conducted which is condu- of such a has bent over cive to calm and though detached deliberation and backwards to make it seem as has counsel, court, accused, witnesses, impartiality judicial 3. Concern about tem- or the perament can be traced back to the Manu- 1951 he should avoid a controversial manner or al, which states: interruptions tone. He should avoid of coun- arguments except clarify sel in their [The officer] law should bear in mind that his positions, mind as to their and he should not participation undue or interference in the ex- witnesses, tempted unnecessary display of learn- amination of aor severe attitude on witnesses, ing premature judgement. part may prevent or a toward tend to Courts-Martial, case, 396(2), proper presentation of Para. Manual for United or hinder truth____ States, addressing the ascertainment of 44 Flamm, disqualifi a acted as result of such bias.” communication does mandate

jnot (footnotes omitted). Id.; Alis, supra, § 4.3 113-14 cation. see also United States v. (cit 817, (A.F.Ct.Crim.App.1998) 47 MJ 824 strong presumption There is a that a Chavira, ing v. United States MJ judge impartial, party seeking is and a (ACMR 1987)(“When require, circumstances high a hur demonstrate bias must overcome parte scheduling ex communications for or dle, particularly alleged in when the bias purposes that administrative do deal with conjunction judi volves actions taken in provided issues are authorized no substantive id., proceedings. § cial See 4.6.4 at 136-37 party gains advantage a tactical as a result (suggesting only extraordinary circum judge provision promptly ... and the makes involving pervasive stances bias warrant dis notify parties all other of the substance of qualification alleged when the bias is based communication.”)). A decision on dis actions). judicial Court, upon Supreme qualification “depend will on the nature of involving extra-judicial in a case source communication; the circumstances under bias, appearance doctrine of has made; judge what a which was did as remarks, comments, rulings noted that or communication; parte ex result wheth judge partiality, do not constitute bias or adversely party er it affected a who has they display deep-seated “unless favoritism standing complain; complain whether the antagonism judg or that would make fair ing party may have to the commu consented 555, impossible.” Liteky, ment 510 U.S. at and, so, being parte, nication made if ex 114 S.Ct. 1147. consent; judge whether solicited such party whether the who claims to have been E. EX PAUTE COMMUNICATIONS adversely by parte affected the ex communi The Code of Conduct for United States manner; objected timely cation Judges contains a number of rules to ensure party seeking disqualification whether judges steer clear of circumstances that Flamm, objection.” properly preserved its appearance would demonstrate bias or the (footnotes omitted). § 411-12 supra, 14.3.1 at 3A(4), bias. One such rule is which Canon provides should “[a] accord to DISQUALIFICATION F. UNDER every person legally who is in a interested AND THE FOR UCMJ MANUAL proceeding, person’s lawyer, right or the full COURTS-MARTIAL and, law, according except to be heard law, authorized neither initiate nor consid- Military pro- Uniform Code Justice merits, parte er ex communications on the or person eligible “[n]o vides that to act as merits, procedures affecting pending of a military judge in a case if he is the accuser or impending proceeding.” or The limitation prosecution a witness for the or has acted as generally applies to “oral discussions about a investigating or a officer counsel the same pending impending proceeding between a 26(d). pro- case.” Art. The President has [person] and another that not all of the mulgated disqualification additional stan- attorneys proceeding of record in that are parallel which the statute dards RCM hear, present or written communications governing disqualification of federal civilian proceeding a than all about such less 36(a), judges, § 28 USC 455. See Art. attorneys contemporaneously of record have 836(a) UCMJ, (presidential § rule- 10 USC Flamm, § copies supra, received of.” 14.1 at authority); Analysis making Drafters’ of (footnotes omitted). 406 902, Manual, supra at A21-50. Our RCM developed Court considers the standards pertinent Under circumstances courts, as our the federal civilian as well own present appeal, parte certain ex commu law, addressing disqualification is- case when Id., permissible. § nications are 14.3.1 at See, e.g., arising sues under RCM 902. Moreover, potential in light of the for Wright, 52 MJ at 140-41. incidental non communications involve grounds disquali- for controversial matters such as routine RCM 902 divides sched discussions, categories specific circum- uling parte the fact of an ex fication into two —

45 connoting appear- disqualification stances actual bias and the stances nonetheless warrant 902(b) upon appearance of bias. specific ance of bias. RCM lists five based reasonable requiring disqualification, circumstances in- cluding pertinent present that are two G. PROCEDURE appeal. procedure, may As a matter of counsel 902(b)(1), provides disqual- RCM which for disqualification move for the of a

ification has a “[w]here judge, military judges also have a con- personal prejudice concerning party bias or any tinuing duty to if of recuse themselves personal knowledge disputed or evidentia- disqualification under 902 bases of RCM facts,” ry applies the same substantive stan- 902(d)(1). develop. parties Both are RCM counterpart, dard as its civilian 28 USC permitted question 455(b)(1). 902(b)(3) § provides RCM for dis- concerning present possible evidence “[wjhere qualification has ground disqualification prior for or will been be witness the same case.” 902(d)(2). judge’s decision. RCM Of all the 26(d). Analysis two-step analysis. step der a The first asks Although the federal statute does not de- disqualification required whether is under procedure obtaining tail the for a waiver of specific the in disqualification listed RCM parties, early circumstances from the 902(b). no, question If the answer to that by judge is full disclosure the in circumstances step the the generally second asks whether circum- free from subtle coercion is THE OF TRIAL predicate A. RECORD an essential considered to be acceptance See United States v. of waiver. OFFENSES CHARGED Cir.1982). (3rd Nobel, 231, 236-37 696 F.2d obtaining forth procedure A waiver is set for Impropriety Charges Sexual With a. of in of the of Conduct Canon 3D Code Teenagers Three Civilian Judges, provides: which United States charged aris- Appellant was with offenses judge disqualified by the terms of Canon A ing contact with five individuals: from sexual 3C(1), specifi- except in the circumstances and three civilian two members (a) (e), through cally in subsections set out charges involving the teenagers. The civilian pro- may, withdrawing from the instead of for the unusual teenagers provide the context ceeding, the record the of disclose on basis lengthy transpired during the events that parties If disqualification. the trial, appellate proceedings in post-trial, and lawyers after such disclosure and an their this case. pres- opportunity outside of the to confer agree writing in or on judge, all ence of off-post Appellant was divorced and lived judge should not be the record that During two-year teenage with his son. judge willing disqualified, and the is then offenses, covering charged several period judge may participate participate, civilians lived the house other soldiers and proceeding. agreement The shall be JB, times, 19-year-old including at various proceed- record of the incorporated Subsequently, high student. JB school ing. appellant’s out home and lived with moved of employer, owned a who Opinions to the Compendium of Selected parlors. informed Mr. pizza chain of JB Judges for United States Code of Conduct forcibly per- appellant had Bernstein that gloss obtaining provides a further waiver sodomy on him while the two formed oral appearance of im- disqualification of for an sitting appellant’s parked ear. were propriety: CS, employed who was is or is Mr. Bernstein also as to whether there decision During employment inter- appearance improprie- a friend of JB. not a reasonable view, appellant Mr. Bernstein that judge; CS told ty a decision to be made getting indecently him after had assaulted parties not be consulted counsel or should Mr. Bernstein subse- judge him drunk. When If the determines on that issue. RW, 15-year-old quently JB’s appearance of learned there is a reasonable recuse, half-brother, appellant, spent time with either impropriety, the must might suspicious appellant in full. he procedure 3D became or invoke the Canon as well. Mr. Bernstein have molested RW 3.8-2[l](c). Although procedure in § father, Sergeant Master informed RW’s required under 28 USC is not Canon 3D (MSG) his son. told questioned who RW W/> 455(e), § courts have cited Canon sexually appellant had molested MSG W Nobel, supra. approval. See did appellant’s him house. Mr. Bernstein allega- directly these speak to RW about III. BACKGROUND regarding all three allegations tions. The provides a detailed account This section brought teenagers to the atten- civilian during trial and events at the time of by Mr. Bernstein. military authorities tion of the evolution of appellate review to reflect Be- disqualification in this case. issue Involving Military Person- Charges b. The make a did not cause the nel pertinent comprehensive disclosure of charges sexual remaining involved events, only in- following not sets forth the armed members of contact with two but also formation from the record through during 1993 at various times participants forces differing recollections (PVT) B, new member of developed 1995. Private contained material battalion, when most appellant’s arrived trial. deployed. appellant’s sug- pretrial the unit At After additional matters were con- was 20, gestion, joined off-post morning August B trial on appellant PVT for a sidered on the of game began opening pool, appellant’s of and then went to merits statements. statements, appellant’s During opening prosecu- accepted house. B PVT invita- testimony spend night appellant’s expected tion to at each house. tion summarized on shortly charge expert testimony B retiring PVT testified that for and indicated that evening, appellant delayed geni- explain reporting touched PVT B’s be offered to would departed young tals. B PVT then and obtained a of of victims to in terms the reluctance Hood, ride back to Fort where he reported report sexual abuse. The defense counsel’s duty the incident to opening potential the staff noncommis- statement focused on in- (NCO). sioned officer anticipated testimony in the of consistencies witnesses, prosecution implying that at least CJ, The other offenses involved who was manipulated by some’ witnesses were duty on active at the time of the incidents but by who described defense Mr. was military had left at the service time of trial. key thing.” the whole counsel as “the separate CJ’s covered two inci- contact, dents of sexual one the barracks opening prior After the statements party appellant’s and one at a home. CJ prosecution’s commencement of the case on large quantity testified that he consumed of merits, conducted a bedroom, beer, asleep floor, fell 39(a), UCMJ, routine session under Article up appellant touching genital woke to find 839(a), expert § regarding 10 USC wit- area. discussion, During nesses. the course of that expressed trial concern that counsel had Neither of the had victims contact with given prosecution list of the bailiff a prior Appellant Mr. trial. Bernstein showing they the order which witnesses involving charge convicted of the B. PVT appear. He the trial would admonished He was also one of specifica- convicted of organized counsel to have his witnesses so involving acquitted tions CJ and of the other. “not court-martial would have to 2. OVERVIEW wait minutes between witnesses.” trial, strategy At pri- the defense focused early When the court reconvened marily role, on Mr. suggesting Bernstein’s 20, August prosecution on afternoon reports that the were not abuse credible its called first witness —CS —one the civil- and that he manipulated teenagers charges. ians named as a victim in the De- making charges. into false trial was immediately requested fense counsel a brief by marked conflicts Mr. between Bernstein delay purposes interviewing the wit- military judge, including and the two out-of- determining ness. After the defense court confi*ontations. The out-of-court con- previously opportunity to had the interview frontations between the investigation pretrial the witness at the un- only procedural Bernstein not affected 832, UCMJ, § Article 10 USC der aspects of the but also became the focus military judge expressed fur- concern about of evidence introduced for consideration delay, noting ther that “witnesses in cases during the members trial on the merits. reluctant, like this do tend to be a little frail; waiting PROCEEDINGS PRIOR them all TO little and we had ' morning.” THE CONFRONTATIONS Defense withdrew his re- counsel quest delay, prosecution began for a 7, 1996, Appellant May arraigned on examination its of CS. pretrial proceedings motions and related August were considered appellant 10 and 19. A CS testified that encountered variety delayed him a circumstances commence- him school and offered ride home. merits, home, including ment of trial on going a He added that instead of to CS’s house, lengthy, they defense-requested appellant’s appel- continuance ac- went to where beer, pornographic commodate the of both civilian served him schedules and lant showed movies, activity defense and initiated without counsel. sexual 48 the [Captain withdrew further testified that he Schwind6

OS’s consent. CS from about this parents courtroom.] did not tell his friends he was embarrassed. because lapse.] [Time eventually He that he told his em- stated military called a brief recess Bernstein, transpired ployer, Mr. what had later, p.m. he convened Four minutes 2:28 JB, learning employee, fellow 39(a) an Article session and indicated by appellant. In his “had been attacked” difficulty obtaining appearance the JB’s cross-examination, explored defense counsel related to Mr. Bernstein. testimony pre- inconsistencies between 39(a) This Article session is called MJ: hearing, at the 32 sented court and Article present as order. All are before. bring- role focused Mr. Bernstein’s Captain is members are absent. Schwind ing allegations attention of CS’s absent. prosecution. father and the Bernstein, met, highly who I have Mr. 4. IN THE DELAY BRINGING JB treated in upset. He believes he was TO THE STAND WITNESS improper way. I not have a conver- could I had with Mr. Bernstein because sation completed testimony, After CS every- premonition that I would revisit this witness, prosecution called its second JB— I Mr. thing say. I invited was about to teenage civilians named in the another of I for the Bernstein in. believe called charges as a victim. The record trial here, is correct? MP’s to come description about cryptic contains a what Henry: spectator section.] [From CPT transpired. then Yes, way. They’re sir. on their Initially, the some difficul- record indicates Very Okay. MJ: well. ty respect with to the witness: Christensen,7 Now, you Captain I want TC: We call J* B*. Schwind, Captain sit kick down out— Bennett, [Specialist legal specialist, with- going him tell we’re courtroom, and reentered drew from trial; may him if he leaves that tell shortly thereafter conferred charges this is for and all work dismiss counsel.] trial naught. in; tell him I MJ: Tell Mr. B* to come court- [Captain reentered the Schwind said so. room.] Cooks, legal [Specialist specialist, with- in? going come Was Mr. Bernstein MJ: Captain courtroom. Hen- drew from Sir, attempting to call Colonel TC: he’s ry, spectator section with- seated Naccarato.8 lapse.] [Time drew courtroom.]5 from stay Everybody here. MJ: Okay. premonition. agot I’ve Gen- MJ: judge’s bench.] [Stepped down from tlemen, please go into the deliberation Cooks, my your Put ears you’re witness. you shortly. getting to room. We’ll be on. sir, him, may. get if I If we I’d TC: Sir — Specialist Cooks [The testify. like to hear him courtroom.] withdrew from you go get that. MJ: understand Would announcement, brief Following a second please? him minutes began p.m. at 2:33 Four recess Yes, sir. TC: 39(a) later, recon- the Article session was vened, judge vaguely re- you. MJ: Thank (TC). Trial Counsel italics is from the 6. The 4. The bracketed material in record of trial. (ATC). Assistant Trial Counsel 7. The courtroom, Corps, Henry, Judge of III spectator Advocate 8. The Staff CPT Cavaliy Cavalry headquarters the 1st Division Military the 1st above Justice of Chief chain command. Division. that, ferred to the in pro- going difficulties encountered we were to have a trial. And curing that, appearance: JB’s all I wanted ... [JB] to do was come testify, testify truthfully, in and Specialist

[The Cooks give opportunity put ... an [JB] this reentered the courtroom.] way incident him in behind one or another in, MJ: Come Mr.—what’s his name? that, people this week. And if all wanted [JB] TC: go subpoenas, home there were no ..., [JB] MJ: come on in a and have seat. just government that would cause the witness [The entered the courtroom and week, subpoenas issue next and this trial took the witness stand.] continue in a would few more weeks. MJ: Let the record reflect that I went out [JB], my you ... recollection is decided 89(a) with —are we on the record? Article you that put wanted to come in and this called present to order. All are as before. today you worry behind and not about it The members are absent. Mr. [JB] is on right? later. that Is the witness stand. yes, [JB]: sir. Specialist Cooks— Yes — [Assistant trial counsel stood.] Okay. that, MJ: And with are there questions? Talk to me. just know, you sir,

ATC: I wanted to let No, TC: sir. Captain present Sehwind is now. No, CDC: sir. Well, Okay. every- MJ: we can’t have Cooks, Specialist MJ: I anything did leave thing. Okay. Specialist I Cooks and went important out? out to talk to Mr. Bernstein. Mr. Bern- SPC of____ spectator [From COOKS: section.] apparently stein good is a friend No, sir. very He protective [JB]. is of ... [JB]. right. Anything

MJ: All else? No,

TC: sir. .... Mr. eager Bernstein is to avoid Contrary impression to the that this account problems. He believes that —and what provided complete events, description off, him sent so straight: the record is portion this significant the record omitted Apparently, he captain, believes that a who transpired details as to what outside the he believes his begins first word with an See, III.A.8., e.g., courtroom. Sections III. “F” and ends spoken inap- “G” had A.20., III.D., infra. propriately to him—and I think he’s refer- ring you, Captain Brown9 —and Mr. 5. JB’S TESTIMONY THE ON MERITS upset. Bernstein all resumed, After trial JB testified that he DC: What? house, appellant’s had rented a room in Sir, record, CDC: talking for the he’s —he appellant had initiated non-consensual sexual here, was in sir. him, contact with that he had been too em- Henry: CPT spectator [From the section.] friends, parents barrassed to tell his me, talking He’s about sir. subsequently moved into the house of his Oh, talking Captain MJ: he’s about Hen- Bernstein, employer, Mr. and that he eventu- ry? ally told Mr. Bernstein transpired what had Yes, Henry: CPT sir. cross-examination, appellant. On Oh, great. sorry. thought MJ: I’m employed approach defense an similar captain. any event, CS, was the other emphasizing used with contradictions be- F— upset. Mr. Bernstein is all And what did tween his trial previous and his Iwas: went and I reminded Mr. Bernstein highlighting statements and the role of Mr. calling that we weren’t him as a witness at bringing allegations Bernstein in point; [JB]; we calling ... Army. attention of the (DC). 9. Detailed Defense Counsel a call ... Mr. I received MR. MJ: PRIOR TO RECESS my superior him or from called TESTIMONY BERNSTEIN’S else, my office—or told someone and told 39(a) testimony, Following an Article JB’s you— you by pushing him that assaulted p.m. to at 4:09 consider session convened Yes, sir. WIT: later, evidentiary matter. Two minutes And MJ: referred announced, abruptly «m*****f***** lasted for recess.” The recess “We’re Yes, sir. WIT: minutes. Okay. you please tell MJ: Would point not reflect The record that does here, questions in of parties they have case First, the important developments. mili- two you concerning that. me or tary learned that Mr. Bernstein had me and [dem- Your Honor did take WIT: him, complaint and the com- made about me, and used went like that to onstrated] plaint had come to the attention you me vulgarity, “What the f*** do want judiciary.

judge’s superior within As- go I not in do?” and told that if did to me eventually pects development of this would go the courtroom that he would ahead placed on record. See Section III. lockup. subpoe- put me in And I was not A.H., Second, military judge infra. this court naed at all. parte trial counsel ex conversation had an military judge attempted to ob- then in which the trial convinced the mili- counsel agreement Bernstein’s with his own tain Mr. tary judge delay placing information on understanding transpired: had what concerning con- the record the out-of-court Now, you Okay. began because MJ: frontations between the interfering gov- stopped were —or conversation Mr. Bernstein. The fact of the court, is that calling ernment [JB] never on the record and was not re- was correct? long to defense until vealed counsel court, subpoenaed [JB] WIT: not appellate when the case was under re- sir. III.E., view. See Section infra. you Okay. my question. Did Not MJ: 7. MR. BERNSTEIN’S TESTIMONY attempt to prosecutor’s interfere with the ON THE MERITS brought [JB] into court— Negative. WIT: Mr. called stand who was — n provide —to MJ: p.m., nature of at 4:50 testified about the No, sir. WIT: relationship personal employment victims, My we’re clear bring- question, role in Please. so the civilian as well his MJ: you interfere with— allegations appellant to on the answer: Did ing against get prosecution [JB] went out when civilian law enforce- attention any way? you attempt did to intervene ment authorities. No, sir. WIT: 39(A) MR. BERNSTEIN’S ARTICLE to the issue of turned THE TESTIMONY CONCERNING Bernstein: he had assaulted Mr. whether WITH CONFRONTATIONS you on the Very patted well. MILITARY MJ: When JUDGE shoulder, you that an assault? did consider concluded his testi- When Bernstein is, That an offensive— merits, mony on the he remained Yes, sir. WIT: military judge called an Arti- while the stand You did? MJ: 39(a) session his out-of-court cle to discuss Yes, sir. WIT: The mili- confrontations with Mr. Bernstein. touching? As an offensive MJ: provide a tary judge elected not to narrative Yes, sir. WIT: knew, III.F., infra, of what he see Section Okay. Specialist Cooks—where explore the matter Was chose instead to MJ: Bernstein: is he? through an examination of Mr. [JB], So, 20-year-old you that spectator MJ: told section.]

SPC Bennett: [From child, I, you, you me because like gone, liked He’s sir. use the F-word? Say again? MJ: lot, yes, I use “f***” a sir. WIT: go, Bennett: He sir. He had SPC Okay. go MJ: class. Good. Specialist But the word MJ: Tell he’s a witness. WIT: the —but Cooks you in. [sic] used it Cooks, Specialist 24r-year-old, heavy set, gentleman, African American Subsequently, the and Mr. present, hewas not? military judge’s Bernstein discussed Yes, contempt threat to hold Mr. Bernstein WIT: sir. court: Very MJ: well. you was that MJ: And the threat advised Following colloquy, military judge me that not in court and profanity:

discussed his use of soldier, were not a correct? Okay. Now, ... profanity. MJ: did use Yes, I also WIT: sir. And did—and also I admit that. did, this, you to add I also did advise that I Yes, sir. WIT: whatsoever; any subpoena was not under And— MJ: anytime. that I could leave at 20-year- WIT: In front of—in front of a you MJ: Correct. And I informed that if old child. you you the court interfered with yeah, 20-year-old MJ: child who is needed— A— part corporation? owner of the you in contempt WIT: That would hold me Yes, WIT: sir. of court. Okay. Now,

MJ: time at the that I used MJ: Correct. And that was the threat? profanity, you process were in of tell- Yes, I was not —I WIT: sir. was not ing you you me that had or were —or were chambers, your inside sir. getting phone, General Schwartz10 on the But the— n Okay. MJ: is that correct? Okay— WIT: Yes, WIT: sir. you MJ: But the was if threat interfered you MJ: And I I told didn’t care —I proceedings, get- with the which included my “give think words a f*** were what ting, ... ... what’s-his-face into the court- General—(cid:127)” room— give WIT: You didn’t f***. a [JB], WIT: sir. Schwartz, right? MJ: About General you MJ: That I would hold [JB]. Yes, WIT: sir. contempt, court —in correct? you I MJ: And told that because —I said Yes, WIT: sir. my job that I a was and was not to military judge completed After the his dis- care what think. commanders cussion he with Mr. asked wheth- Yes, WIT: sir. parties questions. er the At that So, MJ: was it more than that? Hewitt, point, spectator, interrupted Mr. to me, yes, attorney. WIT: You did sir. note that threaten he was Mr. Bernstein’s so called recess that Mr. Well, Okay. get MJ: to that. we’ll And speak Mr. Hewitt could with Bernstein. [JB]; said, point you you at that at looked man,” referring me, “I like this to “because recess, Following he uses that F-word.” 39(a) session, reconvened the Article Yes, WIT: sir. Mr. Bernstein on the witness stand. The Corps, step Cavalry organi 10. Commander of III the next mander of the 1st Division. Both LaPorte, Major Hood, chain of command General above headquartered zations were at Fort Texas. who had convened the court-martial as com- just basically apologize out of judge began explanation for that —it was bit, Your Honor. proceeding: frustration a little manner which Okay. MJ: me Okay. explain Let me—let MJ: I’m WIT: And— why doing doing this. this be- I’m possibly is information cause this which looking apologies. I MJ: I’m not parties pro- might mean, affect how want appreciate accepted; it and it’s I they in this and what want to do ceed however, looking I’m for facts and not they why do and how want to it. That’s anybody anything. roll over on my doing I’m this. I don’t care —I had Yes, WIT: sir. years ago. Okay. promotion 3 When last threatening CDC: You mean they anymore, me on the don’t want bench building? leave the got job, retire. know when to [JB] WIT: was. doing Hodges. for Keith I’m I’m not this CDC: was? [JB] justice requires I think doing this because Yes, WIT: sir. it. threatening leave CDC: And he was questioned then Mr. Bern- Trial counsel through you? stein, focusing day on Bernstein’s role on the actually did not here [JB] WIT: want morning in terms before trial trial Quintanil- today. to face He did not want convincing testify. Trial a reluctant JB Quin- la. He not want to look Mr. did questions concerning the counsel did not ask [JB] tanilla. I told is some- And surrounding the out-of-court circumstances thing duty. that is—it’s his confrontation between Bernstein and Well, basically the rea- CDC: —and judge, except following for the brief asking son I’m is the whole—the whole exchange: thing started, my understanding is— from you concerned what TC: Were about said, you you is because “We’re out — might happen to him courtroom? said, leaving.” they And here. We’re Yes, WIT: sir. stay.” you go. gotta ‘You You And can’t got upset Is that about that. that —is something had You think that to do TC: somewhat accurate? my went on back there in office what lot, know, you [JB] WIT: I care about and out there? you very personal person if and is a [JB] Yes, sir. WIT: saying. understand what I’m And he —he counsel asked about the ori- The defense testify present time did not to at this want controversy gins Bern- between Mr. against Quintanilla because he did William military judge: stein and Quintanilla. not want to look at Mr. actually I And because wasn’t CDC: government CDC: And did he tell it, is, guess my I party question to all of not he to leave and did want to wanted you problem? it that what was Was testify government being tri- —and testify or him to was it that he didn’t want you people did tell them al counsel —or testify you and that con- didn’t to want that? him or was it— vinced No, them that. WIT: he told Sir, really fright- pretty he —he was WIT: guess I I’m con- Okay. And—and CDC: ened, sir, testifying. He did not about saying your so, he’s he fused about —did — line-up. in the second He want to be you say you say leaving did were or was know, you line-up, to be the third wanted leaving? himself, may sir. And I add prepare stay. go him to ahead and WIT: I told something to this? go in his best interest to I —it was in—it’s CDC: Yes. Go and get ahead it over with. ahead and get with. face it over and overreacted, just I and I I think WIT: controversy then how did Honor —the or me—I CDC: And don’t think the begin judge actually had judge, highly all to where apologize to the highly get you? I’m to leave the courtroom to I to find a witness. told that there is mean— n problem getting to come [JB] out. Realizing apparently young, [JB] honestly just WIT: Over—-it was over case, dynamics of this I went out just just frustration. It was was frus- —I uniform, robe, my to find out what being long, trated from here for so time, happened. prosecu- I At that took a my my was was mistake. —that tor —who was who? So, your testimony you CDC: is that wer- going building, you Myself, en’t to leave the were TC: sir. stay going telling You weren’t here? And I took MJ: Schwind. Mr. Carlson. you anyone leaving? going You were there, got quite frankly, When I Mr. Bern- stay here? Okay. hanging off the stein was rafters. Well, you subpoena,

WIT: was not under very He upset And he calmed down. know, wondering I [sic] when I was captain about who had some mistreated going up, you to be called know. And I Captain Brown, him. I it was assumed going building get to leave Captain Henry, later turned out it was something to eat. something something done said was—it So, you just said, going “I’m get CDC: assumption, Captain a fair Brown —had something to eat and I’ll be back”? something something said or done that Mr. up. my goal Bernstein was It was Basically. riled You know— WIT: point along. the trial move told And that’s all CDC: what started of this? worry cap- “Don’t about the sir. And it was— n Yes, WIT: said, “[JB], tain.” I all [JB] turned to point, Next Craig. MJ: subpoenas this stuff about and where Say again, WIT: sir? you’re be, going going to be and point, Next MJ: Mr. Carlson. point is we can finish this trial this week questions. No further CDC: govern- and this will be behind or the parties ques- completed When their delay, they’ll ment will have a issue sub- tioning, provided poenas, fol- be back in and we’ll here next lowing summary: do, month. What do want to [JB]?” said, testify.” said, JB “I want “Good. may possibly For those

MJ: who read this Now, part you Let’s later, roll.” the where were up; record let’s back it and how at present, point is that accurate— somebody may this understand some happenings of unusual on the record Yes, WIT: sir. earlier. just MJ: —what I described? [CS], testimony govern- After the of Yes, WIT: sir. listen, government, ment called be- [JB] — right. got any spins All MJ: You or twists you got cause a role in this —called I [JB]. you put want to on it? in, say, saw the bailiff come and heard her all, animosity WIT: No at sir. mean, testify.” “He doesn’t I want to I that. Heard it saw I saw it. sent a Well, MJ: how about— out, waiting counsel trial and after for that WIT: No. pot to return to crab several animosity— Forget MJ: minutes, and he didn’t come back. And I spins. Nothing, No. WIT: No sir. parties morning

remind that we in, long Okay. a had false start —it took us until MJ: back in—came Came back down, thing put robe, And hap- again prose- 11:00. then the first that on the sat pened got sinking leaving [CS] when on the stand was cutors were like rats on a ship going was a there side-bar where the defense in the area of the witness room. So, anymore lawyers it I asked interview was 1:00— didn’t want to leave the [CS]. finally going having when we I 12:30 to hear courtroom because was trouble now, see, know, keeping ready evidence. I I put some And track of them. was taking unnecessary transponders people thinking another recess them. But on that idea, TRIAL good 9. CONTINUATION OF ON I be a I needed witness would into trusty Specialist took me DURING THE Cooks with MERITS point, At he was on room. that OF AUGUST 20 EVENING telephone calling either Colonel Naccara- first, proceeded as if the con- At the trial told Mr. to—later General Schwartz. military judge and frontations between the problems I under- had no Bernstein longer no were matter Mr. Bernstein I standing each other before. informed prosecution resumed its case concern. The Mr. that I didn’t work for Gen- Bernstein testimony of the third on the merits with the Schwartz; give I f*** eral didn’t what victim, RW, that alleged who stated civilian said, trying or General Schwartz did sexually by appellant, he had been molested emphasize point. judges that And don’t anyone he not told about it because that people like to have think commanders embarrassed, only dis- he was trying I’m judges tell what to do. by being questioned father. closed it after his it, just my job if it’s I can’t do flaunt counsel, by Upon defense cross-examination they work be [sic] for commanders because though anyone he had not RW said even told convening authority. Bernstein prior being confronted incident my hanging off the rafters still father, understanding his that Mr. his style, my touchy-feely view. I used told father that he had Bernstein had his tapped thumped him on chest him— acknowledged that Mr. been molested. RW mano,— hand, open man —mano a present Bernstein was house WIT: Kind of like a father. him mo- day his confronted about the father Captain MJ: —like I Brown and did to parties asked numerous lestation. Both said, down, get “Calm let’s a hold it. that Mr. questions about when RW learned going to Let’s roll.” And the We’re trial. in- the source of his father’s Bernstein was only thing that Mr. Bernstein said to me formation. RW’s answers were inconclusive. was, up on “Please don’t let them beat charge [JB].” And I told him that was prosecution its continued case proceedings and that I would allow father, testimony also who was from RW’s factually, go. Now examination to victim, stepfather civilian JB. of another or accurate inaccurate? Bern- Much of the focused Mr. Yes, urging father to WIT: sir. stein’s role in determine molested, his role had been whether RW right. Any questions? Captain MJ: All Following pursuing investigation. Schwind, Carlson, Captain Carlson —Mr. testimony, court-martial recessed for out, present all in and others who were night p.m. at 8:10 anybody from like to add detract would those facts? COUNSEL’S DEFENSE from defense. CDC: None OF ALLEGATION No, TC: Your Honor. BIAS JUDICIAL you Okay. Mr. MJ: do following August trial re- day, On the anything to add? prosecution presenting the with the sumed No, sir, apologize. I WIT: (PFC) B, Private First Class hap- Okay. problem. It’s It MJ: not a alleged in one of the indecent victim dynamic pro- are pens. why That’s trials had charges. B testified that he assault PFC Let’s take the remainder of the cesses. house, stayed spent evening appellant’s an at recess. We’re recess. grabbed in the overnight, had been by appellant in the middle of crotch during Subsequent developments cross-examination, defense, in night. The its that Mr. Bern- trial would demonstrate both attempted raise as to whether doubts that he stein had not abandoned belief an indecent demonstrated circumstances assaulted and that there was more been touching, suggest possibility also and to placed than had been on the incident III.D., of consent. record. Section See infra. cross-examination, on,

During military- you, move and I’ve done that with but Okay. judge expressed pace frequently. concern less about approach, per- defense counsel’s which he sir, Yes, and I will. CDC: ceived as redundant. When defense counsel returned to defense coun- began explore the nature of PFC B’s during tri- sel’s concern about his comments women, relationship with the trial counsel al, explaining that he had trial overruled objected questions were not rele- objection, though counsel’s relevance even military judge responded vant. The with a time, might have been sustained at the indi- message to trial counsel: cating subsequently that defense counsel rec- could have established relevance. The If ques-

MJ: he wants to ask that line of tions, ord reflects that before defense counsel could going go I’m I ahead and let him. respond, apparently obligat- trial counsel felt just go think that —I think let him that — interject support ed to a comment in of the down, Captain ahead. Sit Schwind. This position: defense objections you one of those don’t want ____ part make. I point, can see of Mr. Carlson’s sir, your response is that to me seemed to judge’s reaction to the com- express opinion an as to the worth or the ments, immediately defense counsel asked objection objection my nonworth of his —or 39(a) session, for an Article which allowing testify. many him to think asserted that the acted presented. have been “partial” counsel, telling manner the trial military judge apparently realized that members, in front of the pursue not to an concerning ap- issue had been raised particular objections. line bias, pearance engaged and he in a further responded first that he had overruled colloquywith defense counsel: objection, trial counsel’s and then set forth a Okay. your you point? MJ: Is that Do lengthy critique theory of the defense sending pher- think that —do think I’m respect to the cross-examination of PFC B. omones? apparent When it became that defense coun- Yes, CDC: sir. concerned, sel remained MJ: I'll fix that. offered a defense of his conduct of the including a reference to his encounter with pace Defense counsel noted that while the Mr. Bernstein: questioning may of his have amounted to crawling,” nearing “slow comple- he was Carlson, MJ: Mr. I want to think for tion of his examination of PFC B. The mili-

just a moment about this entire trial. tary judge, who viewed the defense concern Yes, CDC: sir. motion, as a recusal that he announced would only MJ: gotten Wfliatis the time that I’ve himself, not recuse he would instruct lawyers on the Truly. in this case? the members not to take of his remarks mean, stuff, nitpicky only but what’s the pace proceedings about the “an thing really gotten I’ve lawyers anybody’s indication of the worth of case.” Efficiency. about? THE MILITARY JUDGE SUGGESTS Yes, CDC: sir. DISQUALIFICATION POST-TRIAL OF CONVENING AUTHORITY Okay. you guys why you MJ: told need- ed a put 39(a) reason at 9:00 when we the mem- At the conclusion of the Article ses- together. sion, bers I recess, told when a witness there was a 15-minute which ques- takes the stand and apparently before the first included an out-of-court confer- people involving tion is asked want another reason ence the and counsel to talk parties for hour. The fact that I for want under RCM 802. the When 39(a) along got reconvened, to this great move trial me the Article session was the mil- pleasure having of itary judge Mr. Bernstein slander referred to the RCM 802 session my reputation military. I description beat on but did not set forth a clear of Captain pick up pace Schwind to and the out-of-court session on the record. The subject. Defense counsel pursue on that Mr. Bernstein’s com- indicates that

record military defense counsel suggested that the commanding general continued plaint to the knowledge concern, might about sub- although the rec- have some a matter of to be ject: clearly the nature of ord does not describe the attention complaint or how it came to Sir, eventually would we we CDC: would— military judge, military judge. The of the I’m not sure put in on the record. like to however, explain that he used the occasion to record, point put if this is the to this himself, and that had decided not to recuse Captain Brown does have we but do— authority convening should thought he I knowledge happened, and think of what post-trial disqualify himself from action at important it to be on the record it’s for the case: point. some record, this is on the MJ: I don’t think it to be on the important it MJ: Is during quickly. I was informed let’s do it pur- purposes of the merits or record for in the courtroom that 802 that we held post-trial? poses of point proceed- apparently what —at Post-trial, I don’t know— sir. And CDC: talk to Colonel

ings did Mr. Bernstein Okay____ MJ: commanding gener- Lisowski11 and/or however, military judge, al? decided to not The explored on follow-up, was never so the issue testified, guess I sir. TC: the record. Yesterday evening, sir. DC: made to me for MJ: The offer has been ABOUT TESTIMONY 12. FURTHER to know the me to talk to Colonel Lisowski REACTION TO MR. BERNSTEIN’S initial- nature of the conversations. While THE WITH CONFRONTATION thing, ly appeared to be an attractive that MILITARY JUDGE hear I don’t want I’ve decided subject, military judge changed the The might Mr. Bernstein have said about what whether Mr. to consideration of which led me, and I might have involved because attempted influence the Bernstein anybody to think that I care don’t want witnesses says. if I don’t general And what waiting room: thinks, general then I can’t know what the Well, way, there do it this is MJ: ... let’s general thinks. influenced what be right now anything that are aware thought my rulings. If I for a I’ve made the Bern- in this case on that’s done been had done with Mr. Bernstein moment what Sergeant Quin- that affects stein situation ability try regard my this to me affected ability get a fair trial? right or tanilla’s myself. fairly, I recused would have case However, I think it’s a I not. And did be, Well, sir, actually may there CDC: point government should good just talked something that we’ve it’s not if seriously post-trial in its actions consider about, my that in attention but it’s come action, get post-trial conven- to a we to our minutes that he has talked the last 5 authority current con- ing other that they wait- yesterday while witnesses vening authority used. And there’s ing trial. for this that, it there. and I’ll leave law did? Mr. Bernstein MJ: why the explain did Yes, my Telling them that sir. CDC: disqualification require circumstances would Now, Captain guilty. told client mili- convening authority not the make an issue of Brown wanted before tary judge. go time to going to ask for that I was find out what was people to interview these if there was then asked not want to mislead because do said “[a]ny parties wanted other matter” Judge the commander Advocate of identify was the Staff “Colonel” Lisow record does not 11. The Division, convening Cavalry author post-trial pro the 1st point. or his role ski ity. Lisowski ceedings Lieutenant Colonel indicate something Nothing really court or misstate actu- other than that I was WIT: ally paid laughing said. attention I was kind of to. him, sir. point, B At that PFC was on the witness you Why annoying? think he MJ: did was stand, military judge decided to bragging he WIT: Because he was about question him about Bernstein’s interaction Killeen, “I was a business owner in and with the other B witnesses. PFC described council,” blah, blah, city ran for and blah. “annoying” military Bernstein as and told the give really expletive], [an Like I sir. mostly bitching that Bernstein “was Any questions MJ: of [PFC B]? you [demonstrated] about hit him on the No, chest.” B stated PFC that Bernstein had sir. CDC: testimony. not affected his No, TC: sir. 39(a) The Article military judge questioned ended the PFC B fur- remarks, shortly session thereafter.

ther about the nature of When the mem- Bernstein’s courtroom, military bers returned to the testimony and this led to further about the judge endeavored to address the defense confrontation between Bernstein the mil- and itary judge: concern that his remarks had evidenced a against by instructing bias the defense talking you MJ: Was Bernstein by apologizing members to counsel for

personally carping or was he out in a loud the tenor of his remarks. you present? crowd which were 13. THE HEIGHTENED FOCUS just loud, talking WIT: He was out sir. ON THE ROLE OF MR. So, Okay. talking MJ: you was he BERNSTEIN you just group were in a to whoever he remarks, Following military judge’s talking? was the tidal continued with the balance of PFC basically He talking WIT: out loud testimony testimony B’s from the other couple people within a sitting that were victim, CJ, who had since left the there, sir. Army. if asked there Okay. MJ: And about when was this? “[a]ny questions concerning of [CJ] right you WIT: It was might came out contact he have had with Mr. B?” him, sir, spoke to up, responded the MP’s showed Trial ques- counsel that he had no sir. response questions tions. from defense counsel, CJ noted that he had been in a room Okay. say? MJ: What did he witnesses, with Bernstein and other Basically, WIT: he [expletive] about Bernstein had made a number of remarks being here, [expletive] stay that he had to may everyone which have been directed at being sir. That he’s held on Fort Hood as room, that Bernstein had referred to captive. appellant pedophile, ap- and that say? MJ: else What did he parent appellant’s guilt, reference to Bern- going up guys WIT: He was put away.” to call General stein had said: “You him Schwartz, sir, or whatever. military judge suggested that it would say? else MJ: What did he appropriate for defense counsel to call persons testify other as to whether Bern- really WIT: Not much else other than like stein had influenced witnesses outside the shoulder, hit him on the hit disagreed. Trial courtroom. counsel With- him. matter, resolving out say? MJ: Yeah. What else did he We’ve began his own examination of in an CJ effort already squared away. What else did explore further whether his say? been influenced Bernstein. In the course Captain Henry [expletive]. WIT: is an responses, of his described CJ Bernstein as that, saying you, person MJ: You like didn’t B*? “[doesn’t] who think before he talks.” Okay. say? What else did he When the him asked to ex- kind hear it in a everybody [would] referred to circum- that

plain opinion, his CJ way.” involving blow hard kind of apparently the confronta- stances Bernstein and the tion between military judge pur- continued When judge: the motivation for various theories as to sue Well, first. Do MJ: let’s handle issue actions, trial counsel stated Mr. Bernstein’s opinion you Mr. Bernstein’s is or care what object that he would you to in this ease? he wants do what military judge along those lines. The merits rejected argument, emphasiz- trial counsel’s really I don’t care I don’t care. WIT: ing is the hub with re- that “Mr. Bernstein just pretty I think he’s a loud about him. allegations involving the three spect to the fellow. soldiers.” people who have never been everybody He turned off— TC: that he you then indicated would de- MJ: Wait. Wait. How credibility, Bernstein’s concerned about style? How did he was personality scribe his come in noting: “I watched Mr. Bernstein you? affect thing respect to me to tell me one here with I think he handles himself WIT: don’t over, something all it was and when we’re very well. Although does completely else.” the record Why you say that? MJ: do identify specific incident covered just think he I think he don’t WIT: —I remarks, appear military judge’s it would just I think he thinks before he talks. their out-of-court con- the context of reacts. frontations, referring contrast he was Why believe that? MJ: do apologetic approach Bernstein’s between Mr. Well, during day— the course WIT: allegations subsequent in court and his well, peo- guy and the other we—the military judge. —me by the he had been assaulted ple in the room off and on that were that the defense ruled I caught things here and there. some challenge opportunity to would have the going I really know what was on. didn’t bias, and that Bernstein’s motive was an incident with believe there testify before could call witnesses to defense getting he was—that he at one time was respect members on the merits with saying him really I remember loud about. out-of-court comments about Mr. Bernstein’s lawyer, going get a he’s himself $5000 appellant in front of the other witnesses. practical seem at all to me. which didn’t that Mr. Bernstein Trial counsel noted lawyers in Killeen. MJ: There are $5000 called, required testify again if would be just— I it. I not —I believe WIT: him, subpoena a had been issued because Okay. Go ahead. MJ: might difficulty in although be some there I think warrant- didn’t his situation WIT: obtaining appearance. response, just thought he was ed that at all. military judge emphasized Mr. Bernstein’s reacting. trial: central role that can And all the ones this town MJ: sign attach- Happy to a warrant of MJ: go charge or more are worth it. But $5000 suddenly Bernstein’s busi- [Mr. ment if ahead. important than this becomes more ness] goes, like I personality As far WIT: trying vindic- I’m not to be court-martial. said, and he just think he’s loud tive, just trying say that he’s made I’m speaks. think before he doesn’t —he doesn’t case, and if he— in this himself an issue just emotions are He reacts. However his completely told us a thousand and he’s just going, says just talks without — subpoena. don’t “I don’t have times thinking. fact, when, in he does subpoena,” have I want this trial— subpoena. And questioning, further After Quintanilla Sergeant owe it to testimony about Mr. we [CJ’s] summarized and it have have this trial others that we in front of the other Bernstein’s conduct hope ... closure. a “desire or in terms of witnesses QUES- witness, 14. THE MILITARY get JUDGE went in to the one and I can’t young TIONS THE SPECTATORS ABOUT remember the man’s name— MR. BERNSTEIN guy MJ: The short with the bad haircut? exchange After regarding with counsel Yes, CPT HENRY: sir. issue, separate evidentiary right. AllMJ: subject judge changed began Captain CPT HENRY: Schwind asked me question spectators in the courtroom office, go get him. I into the went calling about Mr. without them to door, I Specialist closed had with Cooks present testimony. First, the stand to sworn me. in [CS] was the office there and I apparently Emerick, he noticed that Mr. me, young asked the man to come with witness, expert say Government’s wanted that he’s been called to the witness chair. something: Emerick, MJ: ... Mr. patient- who has ly government expert pa- who has —the tiently waiting, question. been has a CPT HENRY: And I him asked to come MR. EMERICK: spectator [From the sec- me, Captain with Schwind had called Well, thing, on this tion.] Bernstein I—-he him to the witness stand and turn. it’s his attempted engage inme a conversation said, “No, And Mr. go- Bernstein he’s not yesterday too. ing anywhere.” I asked him he who was. you MJ: up Would like to come here and replied employer. He that he was an And

join Well, please. us you I’ll tell —wait. said, “Well, sir, I my understanding it’s he killing Wait. We’re reporter. Has is the next witness and he has to come you he—have anything heard that he said said, with me and take the stand.” He anymore or did with itwas substantial “No, fact, going anywhere, he’s not any or different than what’s been de- said, “No, sir, leaving.” my we’re I it’s you’ve scribed so far since been here all understanding you subpoena he—or along. said, subpoena.” “Wrong, has a He that’s No, just MR. EMERICK: I him told said, “Well, sir, true.” I Captain inappropriate it’s talking for us to be Schwind would like for him to take the left. yelling stand.” And started and stick- ing finger my MJ: I Great. think that face. And I some of the said “Well, lawyers might sir —” you during want to talk to the recess. And I your think that answer you, Captain Henry? MJ: Did he assault good was a you.12 one. Thank No, CPT HENRY: sir. For reasons that apparent are not right. MJ: All ahead. Go record, then decided to said, “Sir, CPT HENRY: After I are engage spectator, another Henry, CPT in a guardian parent?” And he further discussion of the initial incident con- just said, kept yelling. said —start — cerning Bernstein’s role JB’s reluctance to “Well, sir, you say right have no in this testify: Captain now.” And that’s when Schwind Captain Henry, ... your MJ: name has came out and asked me to leave. Why you just here give [sic]. don’t me a Now, right. your All knowledge MJ: Digest Reader’s version of what contract first that knew of the events that apparently [sic] with Mr. Bernstein you had with Mr. Bernstein? precipitous event that him caused Yes, CPT HENRY: sir.

prevent calling of [JB]. spectator CPT HENRY: your impression [From sec- it MJ: Was that he was Yes, Specialist sir. attempting tion.] After prevent calling Cooks [JB]? 12. When Mr. Emerick testified on ous Mr. Emerick testified that he had told subsequently day. the merits, defense counsel asked him whether that he Bernstein was witness and did not Mr. Bernstein had him on the want to talk to him about the case. approached previ- admissibility opened the door to particular point, At that defense

CPT HENRY: misconduct, uncharged but that sir, yes, he didn’t like the order think military judge would not let the evidence going it was in. agreement the de- of a side “because Oh, level [JB’s] well. And what was MJ: going he’s not to talk about fense counsel dealing you? of emotion apparently be- more.” Trial counsel say HENRY: didn’t a word— [JB] CPT unwilling military judge was lieved that the Oh, sorry. I’m was Mr. Bern- MJ: What previous to his decision to admit to adhere stein’s level of emotion? door, opened if the the evidence the defense Very agitated. Angry. HENRY: CPT believe, sir, “I we’re and asserted: don’t Yelling. Excited. opportunity present our case getting a fair Henry Questions Captain for while MJ: today.” here he’s here? exchange between trial counsel The No, TC: sir. military judge quickly moved from dis- No, CDC: sir. objection evidentiary into a cussion of an motion for recusal: RECUSAL 15. THE PROSECUTIONS myself? me to recuse MJ: Want MOTION, THAT THE ALLEGING MILITARY JUDGE WAS SEEKING sir, Yes, we do. TC: ACQUITTAL AN IN OR- TO FORCE And, Okay. the basis is? MJ: A DER TO VERBATIM REC- AVOID your right that now TC: The basis is ORD relationship Mr. is obvious- with Carlson 39(a) session, the mili- Later the Article on, ly going sir. don’t know what’s —we objection tary judge considered a defense attempted explain why then Trial counsel testimony prosecution proposed of two fairly not he believed the appellant effect that en- witnesses to the uncharged concerning applying the rules gaged in other conduct similar to his conduct military judge responded: misconduct. military with two victims. the course simply My relationship Mr. Carlson is un- considering evidence of this whether in court. He’s that seen Mr. Carlson I’ve admissible, pros- charged misconduct was fighter. If fighter, but he’s a fair a hard argued important it was for the ecution that basis, you recuse me for that that’s want to who had not members to hear from witnesses you. you, I think the same of fine. I’ll tell Bernstein, by “[because] contacted Mr. been of the fact the defense has ... made an issue military judge attempted explain lying ... are all that witnesses th[e] position why disagreed trial counsel’s among they collaborating all each other are issue, uncharged which led misconduct on maybe knows?” ... with Bill who exchange: following issue, During defense consideration of the sir, that if Again, you told us earlier TC: stated, “I haven’t made an issue counsel ruling change get a different the facts we I want the ... Bill Bernstein aside from ... as well. telling people, but —.” people to know he was it, get maybe you don’t Okay. Then MJ: off, noting him that military judge cut Schwind, changed they ain’t Captain alleged at issue concerned enough me. victims, alleged the three civilian not request you Sir, case then we TC: Eventually, military judge sus- victims. that we feel yourself on the basis recuse objection, but noted tained defense transcript of you not want a verbatim do if the de- would be admissible the evidence this trial made. opened the door. fense go- I’m even That’s so ridiculous MJ: Shortly ruled after the you have another it. Do ing to address defense, prosecution moved favor basis? from military judge recuse himself that the No, sir. argued that the TC: The trial counsel the trial. many things, Okay. I’ve been accused of take 10 minutes. You

MJ: MJ: Let’s being gutless judge say you is not one of them. call the chief of GAD keep a rule to out Sir, made way you talk to Carl- TC: uncharged upon Rule misconduct based going really over son—we this —we you play at all? government, if 403. Do want Call believe we still them, do, happens. Ten minutes. the burden and I think see what we still getting putting we’re not a fair shot at These remarks were followed a 30- And, prove up. evidence at- 39(a) the Article minute recess. When ses- beyond doubt, tempt prove, a reasonable reconvened, military judge began sion every you each and element that still in- apparent with an reference to an off-the- put struct and that the defense has issue discussion, meaning record of which is with their cross-examination. entirely clear from the record: your commanding MJ: If I were rater or My understanding is that haven’t had officer would send home for the availability time sufficient because of to weekend write me a tome on 403. It her, keep get preliminary so now to call appears you to me don’t understand it so you [sic]. what want to do therefore I don’t want to discuss it. Over- military judge parties asked the ruled. Sit down. Call the members. proceedings their views as to whether the military judge Faced with a decision should continue while considered whether himself, sought to not recuse the trial counsel rulings subject appeal by were to an addressing a different forum for his eviden- 908(a). par- Government under RCM Both tiary objection, following which led to the agreed proceed ties the trial should colloquy military judge: with the military judge government while the took the request gov- TC: We leave to consider a appeal issue under advisement. appeal, ernment sir. prosecution proceeded with its case on Oh, really? MJ: testified, the merits. After several witnesses Yes, TC: sir. 39(a) trial counsel asked for an Article ses- MJ: Stop. [sic] You—What a second. acting sion. request, Before on that Okay. military judge spectators addressed the hours, All TC: we need is two sir. Henry asked CPT whether there an would be MJ: Pardon me? interlocutory government appeal. CPT Hen- got TC: We to have a conference with ry provided ambiguous response, indicat- people. some Two hours to make that ing either that decision had not been made way particu- decision one or another interlocutory or that an appeal would not be evidence____ ruling lar on the 404 and 413 point, filed. At that con- So, MJ: Two hours. I should send the 39(a) session, vened an Article at which he jury home for two hours? reiterated his decision to sustain the defense Yes, TC: sir. objection presentation uncharged mis- And, Okay. appeal MJ: considering would be conduct. After several other what, upon matters, ruling? based the 403 military judge granted defense request prior counsel’s for a brief recess ruling your TC: The 403 decision not presentation of the defense case on the mer- yourself, well, to recuse from this trial. its. decided to continue the 16. THE MILITARY JUDGE’S WARN- spectators, discussion one Captain ING TO MEMBERS TO AVOID Henry, rather than counsel: READING STORIES IN THE LOCAL Captain Henry, MJ: talked to MEDIA GAD13about this? HENRY: proceed CPT behind the [Seated bar.] Before the defense could with its case, No. Sir. called an Article 70, UCMJ, Appellate 13. The § Government Division. See Art. 10 USC 870.

39(a) Carlson, any you. there evidence parties of the Mr. to advise the session present? like to concerning Mr. the defense would developments latest Bern- stein: Sir, yes, your instruction CDC: indicate, going I believe that it has reliably I have been informed that nothing people the trial or the to do with newspapers gone

Bernstein has the trial— story my assaulted behavior [sic] tell his And, secondly, Right. him. he has filed a toward MJ: complaint morning with the yourself. CDC: —beside from police, charging me with assault and Right. purely prophylactic; It’s MJ: lawyer In don’t think I need a [chuckles]. is, somebody protective. the event that case, did, if I than it would cost less an article about Mr. Carlson wants write $5,000. Captain Henry or or about me or about else, somebody you might possi- about par- asking for a reaction from the Without bly relate to this trial. Just —I don’t know ties, subject changed will, they just guessing that there is if I’m concerning pre- and initiated a discussion possibility. goes a trial more When on the merits. De- sentation of the defense day people sniff around and than a counsel, however, remained concerned fense just they might articles and I don’t write about Mr. Bernstein: you to have to wrestle with that. want going allegedly There’s an article CDC: paper published the Killeen now. THE 17. DEFENSE CASE FOCUSES I tell the members not to read MJ: will INFLUENCE ON MR. BERNSTEIN’S newspaper. THE ON WITNESSES members, my The It will be about me. Sergeant The witness was first defense knowledge, nothing Mr. Bern- know about (SGT) Melton, appellant had lived with who Henry Captain and Colonel stein ques- period time. Defense counsel’s for a Hodges. immediately tioning focussed on whether Mr. Okay, just to make CDC: sir. I want attempted to influence the Bernstein had fine. sure—that’s in testimony the Government’s witnesses very generic. I’ll make it MJ: waiting during trial: room Yes, Okay. sir. CDC: Q. Did he [Defense Counsel:] [Bernstein] waiting in the tell them witnesses [the assembled, the mili- When the members respond govern- different room] tary judge provided generic instruction to ques- I them opposed ment to when ask as news, exposure which was avoid to the local tions? upon request from defense supplemented sir, said, [Sergeant Melton] A. Yes counsel: ques- you counsel] ask [defense “When ... I instruct that will MJ: tions, no, simply say yes or and when the tonight. local news Just do listen to the questions go depth government ask[s] And, you will not something else. that answer,” sir. only paper, means not read local that Q. how their demeanor Did he tell them Austin, Temple, Bel- paper, Killeen but they courtroom come should look only I there is the ton. do that because jury or they should face the and whether somebody slight, possibility, however they how should look? might put something paper. have them, “Be serious and solemn A. He told they say, might if no idea or what smile,” sir. and not to get all just want to make sure that sides of SGT Trial counsel’s cross-examination Any questions about that? So fair trial. that Mr. Bern- sought to demonstrate you[r] or loved Melton just up, it tell wives suck generally to all the speaking brings the stein had been you[r] dog or whoever ones or influ- had not that the remarks just put aside and witnesses and paper you that Melton. Alright. Thank enced you’ll pick upit later on. presenting

After the defense finished “[n]o its observed that motions were filed” con- case, prosecution sought cerning to revisit the incident. The article also stated military judge’s ruling excluding “military investigating evidence of authorities are uncharged military judge, misconduct. following the incident” and attributed the 39(a) session, during an Article declined to Mr. Bernstein: change question his view that the evidence complaint “I filed the because feel the unduly prejudicial under Mil.R.Evid. gentleman right had no to touch me.” prosecution sought also to have the Wednesday. Bernstein said He said uncharged misconduct admitted on the he, along an- incident occurred when grounds prosecution that the needed to rebut witness, waiting other outside the theory the defense the witnesses had courtroom. through been tainted their out-of-court con- Hodges Bernstein said came from the tact with Mr. Bernstein. the course of trying “verbally courtroom force one of argument, prosecution emphasized testify.” witnesses Bernstein said that Mr. Bernstein’s conduct outside the he entered into the discussion when the courtroom had become a central issue in the him turned to and “smacked gone case: “The defense has with this theo- my me on the left hand side of four chest ry, just there, weakly put they it out times.” hard, gone bringing with this the whole trial incident, During the Bernstein said the s[a]ga that went on outside this courtroom. “stay him informed out of this. They theory heavily.” relied on that your This is not business.” Bernstein also military judge countered that the Govern- alleges profanity. that the used rely ment could of the two misconduct, charged victims who had not been associated with 19. DEFENSE SEEKS TO IDENTIFY A and did not need further evidence RELATIONSHIP THE BETWEEN form uncharged misconduct to rebut the CONFRONTATIONS AND THE theory defense that Mr. had influ- Bernstein MERITS OF CHARGES enced the of the witnesses. After AGAINST APPELLANT regarding instructions, further discussion The presented defense counsel then a sum- military judge recessed the court-martial for mary understanding of his as to what had evening. transpired military judge between the 18. THE' COURT-MARTIAL CONSID- Mr. Although appears Bernstein at trial. it ERS PRESS COVERAGE OF THE summarizing military he was what the CONFRONTATIONS BETWEEN judge previously placed had on the record THE MILITARY JUDGE AND MR. 39(a) during the Article session with Mr. BERNSTEIN previous day, Bernstein on the it is not clear Shortly after the parts court-martial descrip- reconvened which of the defense counsel’s morning August tion upon military judge’s were based judge noted that summary defense counsel had parts “an upon and which were based respect issue newspaper to a article this defense counsel’s observations. Defense morning,” and directed trial in- clearly counsel to counsel did not purpose articulate his Daily issue, clude article from raising the Killeen Her- military judge ald in appellate the record as an clarify exhibit. did not purpose the information or the article, The headlined “Killeen Man being appears, Files for which it was It offered. Complaint Against Judge,” however, stated that Mr. laying groundwork that he was “simple Bernstein had subsequent filed assault” com- for introduction of evidence that plaint against military judge. Based would contrast the information in the record upon pub- information from the installation’s of trial about the incident with Mr. Bern- office, lic affairs press. Athough article summarized the stein’s comments to the not proceedings, military judge record, noted that point articulated at this it “put record,” the incident appears that the defense wanted to discredit courtroom, everybody in the schmoozing by showing penchant

Mr. Bernstein La- night, talked to General he left exaggeration. said, I don’t am told —What Porte —I BE- THE CONFRONTATIONS following day night or the know —and THE JUDGE MILITARY TWEEN PAO or talk to either the went BECOME AND MR. BERNSTEIN press____ AOF STIPULATION THE SUBJECT BY FOR CONSIDERATION led to the military judge’s comments The THE MERITS MEMBERS ON following exchange with trial counsel: counsel told the Defense is you guy who that show [D]oesn’t MJ: approached the Government that he had agenda is? committed to whatever his regarding the fact proposed stipulation Well, necessarily He’s com- sir. TC: incident, closing get can on with our “so we you and for getting back at mitted to jury.” in to the Trial get this trial offending him in that touching him ... and military judge that the counsel advised matter— stipula- enter into the prosecution declined to argue that— —You can as MJ: it viewed the information tion because military judge then focused The irrelevant. that Mr. Bernstein’s Trial counsel added relationship to the on Mr. Bernstein’s press concern- MPs and the comments to the charged offenses: ing confrontation with your Achilles’ Do know where MJ: not relevant to case? heel is close friend of accused did to a what the Oh, yes, TC: sir. his, no connection there be- There’s [JB]. it is? do think MJ: Where got upset of what that. He because tween Mr. Bernstein is this It is wherever TC: him, willing to and he was happened to morning sir. taking through the stand follow even parties chuckle.] [The saying he was— And, problem right. is That’s MJ: judge interrupted trial counsel’s ... is ... a control Mr. Bernstein that freak____ stipu- proposed argument, began to read the is, point is that he controls lation, inquired about Mr. Bernstein’s not, improperly or Whether it’s [JB]. appeared availability testify. When decided important to me because that’s obtaining Mr. delay in might be some there by the members. testimony, Bernstein’s if military judge added that live testimo- pre- he would counsel whether asked defense needed, testify that Henry could ny was CPT Bernstein return fer to have Mr. “attempt- and “went ballistic” Mr. Bernstein he replied that counsel stand. Defense that the intercede” when he learned ed to testify, glad Mr. Bernstein to have would way in the proceed would proceed to prefer indicated that he would but said anticipated. Trial counsel Bernstein delay in to have by stipulation rather than fact, stipulate that but would to that he might “forget the testi- the members which Bernstein’s actions stipulate to Mr. would mony they heard.” complaining to in terms of after he testified inextri- declaring “Bernstein is that After MPs, command, press. The and the the the major in this issues cably linked to some Mr. he viewed military judge replied that case,” judge trial counsel military asked showing to as relevant Bernstein’s behavior willing stipulate. to prosecution if the control” over JB. depth “the un- prosecution’s reiterated the that information Trial counsel military added military judge “depth stipulate. of his commit- willingness to relevant to show cause, may be” activities whatever Mr. Bernstein’s ment” to “his made it clear that relevant, that it would demonstrate in the absence because and that were have to tes- would stipulation, Mr. Bernstein saying, “It apologizing court effect, tify. that or words to happen,” didn’t minimally

21. THE complaints PROSECUTION IDENTIFIES if Bernstein’s rel- evant, THE MILITARY JUDGE AS A about matters would evidence those issues, panel, WITNESS ON MERITS “confuse the mislead the prejudice going unfairly it’s to the Govern- responded by making Trial counsel it clear ability put ment’s to on a case.” After re- if military that the confrontation between the jecting argument, mili- prosecution’s judge and Mr. Bernstein was relevant to the tary judge provided parties copy awith case, military judge merits of the could stipulation, reflecting proposed proceedings. become a witness changes. changes, proposed In one of the he military judge by suggesting reacted if that to delete references to himself and substitute stipulation, there might was no there be a phrase “court official.” Trial counsel preclude proceed- mistrial that could further agreed, thought but defense counsel it was ings: important “military judge.” to refer to the me, you you MJ: get try [I]f call stipula- Defense counsel’s insistence that the again, case all you get figure over expressly tion refer to the confrontation be- you out whether or not want to wrestle “military judge” tween Bernstein and the jeopardy. you double doWhat want military judge caused the to ruminate about do, Captain Sehwind? subject of recusal: Sir, they on, if put TC: Mr. Bernstein Well, differently recalls events MJ: now I have to decide whether or we’ll have —to try point finger you. myself notwithstanding Inot should recuse by anybody you no motion Do think [sic]. you’ll MJ: Then I’m stipulate. sure You your position your posi- in this you to, can do Captain what want Sehwind. case— you complete going tion how this case is going I’m to let way roll this dice interject me a victim? you want to. Just like we did on the appeal just day, issue the other want Defense counsel assured the through. to think it going portray that he was not manner, but also added it was 22. THE MILITARY JUDGE CONSID- important to the defense that the members DISQUALIFICATION ERS DE- BUT understand that the incident involved Bern- CIDES NOT TO RECUSE HIMSELF military judge, per- stein and the “the senior son around here.” The made In a further discussion about Mr. Bern- attempt persuade a further the defense complaints stein’s to the command and the change stipu- counsel to references press, judge emphasized that his grade judge lation to a “senior field advo- confrontations with Bernstein were relevant grade cate” or a “senior field member of the degree because “the to which the three non- Judge Corps,” Advocate General’s alleged soldier victims are under the control agree defense counsel declined to to such a anyone you, defense, — change. anybody else —is an issue in this case. It’s everybody in obvious to this courtroom.” parties After the disagreed Trial theory counsel with the stipulation, reviewed the substance of the complaints Bernstein’s about they then it considered whether should be judge were relevant to the merits of the case. stipulation testimony, treated as a of which military judge responded: would be read to the members but not sent young The trial is whether or not the three room, stipulation to the deliberation or a truth, telling men are as well as Mr. fact, which could either be read to the mem- And, question Bernstein. a of whether or room, bers or sent to the deliberation truth, young telling not those men are 811(f). Eventually, both. See RCM the mili- is, credibility, depends their on who tary judge stipula- determined that it was a driving the train. was fact, following tion of and offered the reflec- objection Trial counsel then dealings reformulated tion on the tenor of his with trial 403, contending under Mil.R.Evid. that even counsel: Bernstein Sehwind, military judge touched Mr. me, Captain appears to

It Mr. Bern- get his attention. you in an effort to very to be- reasonable would be to [JB] allowed calmed down and you every stein mugged corner lieve that I’ve testify. defense; and to the and not done the same perception---- an unreasonable that’s not day contacted Mr. Bernstein The same So, any pressure you felt to you tell him, military superior and told judge’s testimony, I stipulate to Mr. Bernstein’s assaulted superior, that the And, you I want to extract and remove. him cursed him. and do____ And, I’m you do what want panel of the A was held outside session get [Mr. it takes to willing to do what apologized for his where Mr. Bernstein you want to do? here. What do Bernstein] He said it temper the whole situation. Henry. Captain Talk to on his merely an act of frustration responded that the quickly The trial counsel prob- he had no part, and further said that bringing Mr. “no interest

prosecution had judge. He added lem with the the courtroom.” Bernstein back into him. incident was behind that the evening contacted That Mr. Bernstein DESCRIP- STIPULATION’S Hood, including people on Fort several THE CONFRONTATIONS TION OF officers, he was tell them that senior JUDGE THE MILITARY BETWEEN he was cursed. He said that assaulted and MR. BERNSTEIN AND respect. He proper not treated with the courtroom, to the The members returned we, not quotes, “did on to add that went military judge proceeded as follows: and the that, very was; he had know who And, you going give I’m MJ: now —read powerful friends.” fact, stipulation which I think complaint filed a Bernstein then explain you why you’ve been at last will Military against Police with the Fort Hood abeyance struggled this as we held He also military judge for assault. issue. Daily newspa- Herald went to the Killeen stipulation of fact You’re advised that a visit, per, as a result of this visit—that prosecution agreement between the is an today’s edition published in an article was defense, express consent with the ac- daily newspaper. The article accused, I’m to read that what about military judge of assault cused the facts or are are the uncontradicted language presence. using foul facts in this case. uncontradicted a witness [Reading:] was called as reading stipulation, “[JB] After you’ll by also have prosecution And, following guidance to the judge provided the — get- you in You’re this with deliberation. members: you’ll understand coun- ting it now so that you why they Now, parties will tell argument.” sel’s job, my important. That’s think that’s [Reading:] was called as witness “[JB] very important, you what’s let me tell called, prosecution. When he was questions for couple of then I have a immediately appear he did not you. the court- The bailiff entered courtroom. My case. I’m to this witness [JB], he, Captain room to tell Sehwind happened credibility is not an issue. What testify. The refused to fact in stipulation of respect to find out what called a brief recess you is: my my question terms role — happening.” anybody? that bother Does to the witness went nega- respond in [Appear to MEMBERS: if witness waiting area to determine tive.] a confron- testify. There was want to did jobmy is as you that Do understand tried to MJ: Bill Bernstein who tation with Mr. however, law; I very source of the sole testifying. He was prevent from [JB] effectively and you the law give cannot to take action. agitated and threatened you of the evidence expect you cannot to follow the law if After a further discussion charges, supporting trial counsel re- have reservations about whether or not Bernstein, you describing him guy giving might the law be out of his turned to Mr. “conceited,” “arrogant,” ... mind? and “a loon personality people.” a lot [whose] offends [Appear nega- respond MEMBERS: to respect stipulation, trial counsel With to the tive.] that stated Any MJ: reservations whatsoever? angered what [Bernstein] was so about nega- [Appear respond MEMBERS: happened at the hand of the tive.] just sleep go that ... he couldn’t home and Negative reply MJ: from the members. just police: it off. He calls the “I’ve been you you appreciate also want by judge.” a He the news- assaulted calls role, my respect understand that just by paper: “I’ve a been assaulted stipulation, attempt help not judge profanity against and he used me”____ side, opinion my part either not an as to Maybe you waiting some of are proper improper, good what was or tactic military police for the to come in here and tactic; that, role, my my or a bad involve- take the off the stand. don’t know. ment, in simply that was to do what I’ve military judge interrupted trial counsel’s trying been beginning to do since the argument point: at that get and that was to the witnesses Yeah, gentleman. My leave me out of words, moving; and the evidence in other issue____ credibility I’m is not at logistical nothing matter and more. Schwind, chastising you, your Captain everyone Does understand that? argument____ just want make it [Appear MEMBERS: to nod in affir- stipulation clear the of fact is a fact. It’s mative.] happens. uncontradicted. It’s there. It us, happens Stuff like that to all of but the 24. CONSIDERATION OF THE fact happened that it to the CONFRONTATIONS DURING important. certainly case is not It’s a fact CLOSING ARGUMENTS you your shall consider in delibera- tions, important but it’s not in terms of summary prosecution’s After a brief of the anything how it affects me or the law or evidence, promptly the Government turned else; just how it affects how see Mr. to the confrontations between Mr. Bernstein Bernstein and his activities. military judge, in an effort preempt the defense stipula- reliance on the During argument, balance trial tion: emphasized counsel that Mr. Bernstein had no influence on the two victims and

What was the defense case? What was simply that he told father RW’s Well, argument. their can You tell. should contact law enforcement authorities can tell today. from what came in Their suggesting any without the details of offense. scant evidence was that a Mr. CS, respect With to JB and trial counsel did know-it-all, seems, pompous, civilian as it not endeavor to rebut the defense evidence of opinion, in their masterminded the trial to influence, Mr. Bernstein’s instead fo- bring Sergeant Quintanilla.... down specific alleged cused on the evidence of the acknowledged Trial counsel that Mr. Bern- against each. offenses “probably” “misguided,” stein but con- logical closing tended that it was not argument assume that Defense counsel’s re- prosecution he controlled the peatedly emphasized witnesses. He Mr. Bernstein’s role emphasized prosecution charges, the fact that Mr. Bernstein had both terms played any JB, CS, allegations role in the made of his contacts with father RW’s military complainants, allegations presented the two and that he before the authorities, specifies attempts had not discussed RW as well as his during RW’s father. trial to influence witnesses addition, him waiting specifically the members convicted of inde- room. Defense counsel stipulation concerning in- relied the con- assault offenses on cent acts and indecent frontations between the volving the two victims. attacking Mr. Bernstein as a means of Mr. credibility:

Bernstein’s B. POST-TRIAL PROCESSING you get: I stipulation of fact Did know 22, Appellant August I was sentenced on about that before we started when told 1996, you discharge, opening he was to a bad-conduct confine [in statement] going in this years, pay to be a force trial? didn’t ment for three forfeiture of $300 making up. I’m this stuff months, know that. per month and reduction to for 36 you This is offered so know what kind of Judge grade. The the lowest enlisted Staff guy dominating He’s in [JB] force this is. post-trial Advocate’s recommendation to the coming the witness room. “He ain’t out authority convening commander of the —the guys. you’re doing I don’t like how this. Cavalry 1st Division—was served on defense me, come out.” When convince he’ll February 1997. Defense coun counsel puppet? stipula- This kid isn’t a This is a post-trial convening sel’s submission to the tion of fact. is This uncontroverted. authority request under RCM 1105 and 1106 power trip? Is he on a Is it because of a findings, upon disapproval of the based ed power trip possibly? Does he want to be variety alleged errors. The defense also paper [I]t because of this stuff? ... requested responsibilities post-trial that the authority matter what kind of doesn’t convening “off-post” to an au be transferred around, abusing going he’s to be it. thority. The submission included the follow emphasis Continuing stipulation ing mili references to Mr. Bernstein and the confrontation, regarding the he said: tary judge: And, got thing one other that we trial, witness, government During this And, all because of this. know now waiting sat room beginning didn’t know this at the government on how coached the witnesses got proof. but ... now I’ve even He testify say. During the and what to military’s push the but- knows how to trial, both trial counsel and defense tons____ off, Somebody pisses him requested counsel that the goes calls the commander. He to the impartiality. recuse himself for lack of MPs’s____ And, what does he do when he counsel, military judge, trial chief allegedly [JB been] finds out has assault- Cavalry the 1st Division criminal law sec go po- ed? He doesn’t to the Killeen SJA, tion, Cavalry Cavalry 1st Division 1st lice____ goes because he He to CID Commander, SJA, Corps III Division you get knows that’s how him. Corps all became di the III Commander involving the respect charges to the With rectly through their involved this case civilians, closing three defense counsel’s ar- during Bernstein the tri contact with Mr. primarily on Mr. Bernstein’s gument focused al, making potential them all witnesses. charges involving influence. In terms of the fact, In the trial advised military personnel, defense counsel the two post matters counsel to have these trial challenged testimony primarily their and the off-post handled because of involve government witnesses. of other officers the listed ment/contact develop significant rela- Counsel did not Quintanilla matter. was unable SSG tionship Mr. Bernstein’s activities between atmosphere. hearing in this obtain a fair victims. SJA, convening an addendum VERDICT convening authority authority, advised (1) he, SJA, disqualified was not that: acquitted appellant

The members merely listened to Mr. Bern- civilians, because he had involving three charges two of the (2) convening complaints; authori- CS, stein’s him of and convicted forcible JB and civilian, ty disqualified because he had was not sodomy upon the other RW. (3) Bernstein; the case be judge’s there recommendation spoken with Mr. and “off-post” convening au- in that Mr. Bern- transferred to an was no evidence the record action, spoke Corps thority post-trial as well as the stein ever to the III Command- for effect, er, may request “or what have been said.” The SJA counsel’s to the same defense military judge had as- also noted that recommended that the memorandum erroneously that Mr. Bernstein had Commanding sumed Gen- case be transferred to the spoken convening authority. Command, Defense Army Forces Fort eral of U.S. reply emphasized counsel’s that he was not McPherson, Georgia, preclude ques- “to present during Mr. conversations Bernstein’s proceedings.” The of unfairness in the tion with the command and that the details of Corps adopted III that recom- Commander those conversations were not reflected and forwarded the record to his mendation record of trial. Army superior, the Commander of U.S. memorandum, Forces. In his transmittal Subsequently, general when a different of Corps the III Commander stated: designated acting ficer was command Division, Cavalry 1st er of the that officer key case initi- One of the witnesses convening assumed the duties of the authori my ated several conversations with me and ty appellant’s convening trial. The new Judge circumstances Staff Advocate. The authority impractical decided it was for him conversations, coupled surrounding those case, citing to act on the the material submit with the emotional environment which by ted defense counsel as well com as the tried, concur this case was lead me to SJA, ments of the and forwarded the record military judge’s recommendation by Corps III for action Commander. you. forward the record of trial to be- any question lieve that this avoids of un- Corps, At III the Chief of the Criminal proceedings fairness in the and ensures prepared a Law Division memorandum for justice system that the remains inviolate. describing the SJA Mr. Bernstein’s interac- tion with both advo- commanders post-trial The record does not set forth the cates: III details of the conversations between the thought govern Mr. Bernstein Corps leadership and Mr. nor pressuring employee ment counsel was his explain does it the conflict with the earlier testify complain. and he called addendum, suggested which had there trial, upset, At Mr. Bernstein became also were no such conversations. testify, refused to and contacted or at post-trial recommendation subse- tempted Cavalry 1st contact the Division quently prepared by the SJA at Forces Com- Advocate, Judge Staff Com Division summary mand included a of the reasons mander, you, Corps and the III Command from Fort Hood. case had been transferred employee’s er to discuss his and his contin summary noted that the presence participation ued at trial. post-trial recommended action provided following The memorandum de- authority, “off-post” convening “after he had scription of Mr. Bernstein’s confrontation become involved an out-of-court confronta- military judge: prosecution tion with a witness.” The rec- court-martial, During the course of the findings summarized the ommendation military judge, Bernstein and the COL approval. recommended sentence and Hodges, engaged public, in a verbal Keith primarily response defense submitted a altercation outside the courtroom over his incorporated previously the matter submitted testify. ultimately refusal to This ended in Hood, convening authority at Fort filing charges Mr. Bernstein’s of assault provided a the SJA at Forces Command military judge. against the disagree- simply noting brief addendum July ment with the defense submission. On The memorandum also stated that Bernstein 21, 1997, trial, the con- Corps III eleven months after “contacted the Commander vening authority approved findings of the trial to discuss the incidents conclusion noting noted above.” After sentence. point, became CON- At some

C. ADDITIONAL EVIDENCE impact delay CERNING THE concerned about the CONFRONTATIONS responsibility APPELLATE the efficient conduct of DISCLOSED DURING for necessary REVIEW and decided it was or else “the witness to come as called have During by review the of Criminal Court make what would be done someone a decision Appeals, appellant sought to determine next.” notes: recessed His memorandum “I any concerning additional evidence whether court, robe, my the took off and went to generated had been as a the confrontations inquire why taking long get it was so to the investigations separate result of into the con- witness into the court room.” He added: military judge the frontations between “Knowing potentially was about to Although Mr. the Bernstein. Government witness, a a counsel have contact with took initially requests, rebuffed these the defense from sides with me: CPT [the both Schwind eventually provided with a was number counsel] [the trial and Mr. Carlson defense 1998, documents in October more than two CID, In counsel].” his statement to the years after trial. The documents included stated that Schwind and Carlson “came with material, following pro- which had the been me the room and were either inside or to by participants military police vided the to doorway. my the I had back to CPT investigators during the court-martial and days immediately following Schwind and Mr. Carlson.” As noted the the trial’s 22,1996:(1) III.D.3., post- August infra, conclusion on a section Mr. statement Carlson’s 28, by military judge August accompa- filing disputes on account and trial this asserts by prepared by any nied a memorandum present that he not of the events was (2) military by judge; a statement the trial involving military judge and Mr. Bern- August 27 counsel on and trial counsel’s stein. August memorandum for the record dated military judge’s memorandum states (3) 26; by on Au- two statements the bailiff that he located Mr. Bernstein and JB and (4) 27; gust by statements Mr. Bernstein and military judge. identified himself as the He August provided shortly mid- JB viewed the situation as “tense but not violent night day on the of the confrontation. In building in direction at all.” Mr. counsel, addition, Mr. the civilian defense complained that he had not Bernstein first Carlson, concerning executed an affidavit properly by Henry, been CPT treated 16,1998.

these matters on November Cavalry Military for the 1st Chief of Justice Division, military judge told the and then D. THE OF CON- DESCRIPTIONS objected having as a that he to JB called FRONTATIONS OUTSIDE that the witness. The memorandum states TRIAL RECORD OF military “politely” judge informed Bern testify whether stein that the decision 1. THE MILITARY JUDGE JB, belonged replied that Mr. Bernstein provided by The statement to the MPs military judge telling the that JB was military judge, accompanying and his memo- subpoena, under and that Mr. Bernstein be randum, provide details about the confronta- “rather The memorandum came emotional.” beyond tions those set forth in the record. was not indicates military According judge’s memoran- the trial counsel had not issued aware that dum, when the called JB as a Government subpoena to JB. witness, bailiff returned after “about 5 memorandum, “something minutes” and said to the effect “I believed we would have more notes: coming.” mili- that the witness wasn’t if of emotion productive discussion the level tary judge trial counsel to assist the sent In furtherance of bailiff, was toned down a bit.” apparently to no avail. The memo- enough goal, “I felt comfortable randum does not reflect whether hands, palms simply place my him both any conversations with the bailiff him, upper fourth of open problem. nature of the and toward or counsel as unnecessary My inappropriate and ... my fingers on his shoulders and his chest and remarkably changed effect, profanity say use of the pat simply him twice and my with Mr. Bern- contact nature go to ‘Mr. calm down. Let’s smiled, [JB], He and said to MPs, paused, stein. court.’” In his statement guy. uses the F-word.” “I like He that he did not use stated (He word, I might said the whole am profanity during the initial confrontation. unsure.) returned to The conversation states memorandum cordial, then wished to and Mr. Bernstein that he could “tes- informed JB either something persuade to do to avoid me tify testify now or at some other time later— finally explained being called. [JB’s] possibly subpoena much later —after in a that since he Mr. Bernstein testify replied served.” he wanted to JB relationship parental-like and he [JB] now, judge and returned to the preventing government from call- was courtroom. witness, contempt ing a could be held agreed if he the trial. We interfered with indicates that a second memorandum [JB] that could make his own decision. ap- when JB confrontation occurred did to Mr. then wished close the Bernstein pear military judge “impa- became outside) (leaving door Cooks to ask SPC tient.” The decided not to stayed doorway in the something of me. I direct the counsel to locate the witness trial so not to Cooks. Mr. Bern- exclude SPC lawyers get “because it is hard to back stein, manner, friendly inoffensive Instead, they once leave.” effect, held on to me and said “simply again left the bench and went to “Please, please give let them [JB] don’t inquire delay.” In to the contrast to his time,” something hard about not re- description the first confrontation —which vealing simply I home address. re- [JB’s] brought par- counsel for states that he both of, just plied something effect “We’ll going ties with him because he was to be follow rules.” dealing military judge’s with a witness —the during notes that the second memorandum memorandum, In the accompanied only he was confrontation noted that he could not be sure whether bailiff, Cooks. The memorandum SPC Bernstein physical contact with Mr. occurred following description contains the of the sec- confrontation, during the stat- first or second ond confrontation: ing significant enough simply “[i]t was not to be in terms of which visit even memorable in, immediately As I walked Mr. Bernstein it occurred.” talking told he was to LTG me Schwartz. again “high,” His tone and demeanor was during investiga- MP In his statement is, up on I that he was worked what saw as tion, military judge added that he had simple matter and one we had earlier present after either the called MPs to be resolved. He had his hand over the mouth first or second confrontation: piece. him I told didn’t matter to As I left office first or CPT Schwind’s jobmy me for- not to it was do the com- (I second) second believe the I told time bidding, I could not do LTG mander’s what believe) (I Henry pres- to have CPT MPs said, my chain of command Schwartz prevent any I possible ent. did my to that senior words problems kept Bernstein Mr[.] because apparent effect. It then became he was on saying and the others were [JB] apparently hold. Bernstein tired Mr. I afraid the accused concern holding hung up phone. Mr. As JB, accused, about contact between the me began to tell about all his Bernstein and Bernstein. Hood, on Ft I in Killeen and told contacts memorandum, f***ing “I don’t care what In his summary following regarding supposed I was offered

others tell me to do.” right---- responsibility: followwhat I believed deny a. I I try committed an assault for get [JB] and he will [JB] to come to I [Mr. know he was not Bernstein] offend- court him. by my touching ed him. That is clear to Referring telephone to a conversation that my me from him interaction with and he evening, the memorandum states: was, My touching with me. under the again subpoena assure him there is no circumstances as saw and know them to appearance. for his or He [JB’s] makes be, appropriate “relationship” to our and in guarantee [JB], protect me that I will then an effort to calm the situation. promises he will have [JB] there. might b. That Mr. Bernstein not have Trial counsel had similar conversations with word, by my profane been offended it does morning Mr. Bernstein and JB on the of the my having especially excuse used it expected testimony, presence

under the circumstances. It was not an Judge Staff Corps. Advocate for III else, anyone just very insult to him or bad taste. Trial counsel’s memorandum sets forth the following sequence respect of events with c. unnecessarily place myself did in a testimony. bailiff, leaving JB’s position allegation, where an assault how- notify testify, JB that it was time for him to groundless, ever could be made. “1 saying returned minute later ... that [JB] Notwithstanding my style d. to take an will not take the stand.” Trial counsel asked responsibility keep active moving, a trial Henry CPT to talk to Mr. Bernstein and JB. I directly myself should not have involved later, military judge A minute sent the in a matter occurring that was outside the trial counsel on the mission. Trial same courtroom but rather have left it to the office, counsel went to his where he found parties. I admit the better course would Bernstein, JB, Henry, Mr. CPT and CS’s simply active, to have taken a less “irate,” father. Mr. complain- Bernstein was passive approach. My keep motive was ing Henry that CPT had treated him with moving; the trial I should have used a disrespect. Concerned that Mr. Bernstein different method. “trying provoke was Henry,” CPT trial I e. assumed touching the risk Mr. Henry counsel asked CPT to leave. At that Bernstein however well intentioned. I point, Mr. Bernstein also threatened to leave. posi- touched hundreds in the same tive, friendly, encouraging way. Trial counsel returned It to the courtroom to fully inform the appreciate takes such an event to that he was “work- ing getting risk at hand. I understand. witness come into

court.” When the directed a recess, responded by saying “no, trial counsel 2. THE TRIAL COUNSEL courtroom, get because [JB] when into the description Trial counsel’s of the two inci- testify immediately.” want him to provides significant dents details not set military judge nonetheless ordered the re- forth in in military judge’s the record or cess, and trial counsel went to his office. post-trial statement and In memorandum. Bernstein, JB, and trial counsel were particular, trial military counsel describes the military in trial counsel’s office when the judge being much more emotional and “in B entered his Class uniform.” In in dealings confrontational his with Mr. MPs, his statement to the trial counsel noted Bernstein. counsel, the civilian defense Mr. Carl- Trial counsel’s memorandum rec- son, “might just my have been outside door.” ord notes that he met with Bernstein on military judge, apparently who did not August day before trial on the merits: room, identify himself to the civilians in the long We have a discussion re whether he going testify. According if asked JB was no, appear say must in [JB] court. MPs, to trial counsel’s statement to the my policy subpoena my because is not to coopera- responded own witnesses. Bernstein seems Bernstein with his belief that no tive, saying appear testify, he will [JB] with or without one can force and the two (Bernstein) stated he face and they to. Bernstein’s just if wanted could leave of them in minute. one in the courtroom would be asking to be Hodges keeps Bernstein COL way me on his Hodges looked at then kept COL speak. him Bernstein quiet and let military police. me to call out and told Hodges. talking over COL judge’s memorandum during Whereas follow-up questioning response to immedi- indicated that the provided investigation, trial counsel the MP judicial Mr. Bernstein of his ately informed additional details: indi- counsel’s memorandum position, trial your Hodges come into Q. COL [D]id was not that the cates —who [JB], “If following to office and state judicial robes —had not made his status court f***ing a** get your you don’t during initial known to Bernstein JB minute, you in con- I’ll find in one room and JB. with Mr. Bernstein communications the MPs?” tempt court and call notes that Trial counsel’s statement [JB], No, A. finally Hodges asked who COL Bernstein Hodges him he was the told was. COL quickly down and

judge. Bernstein sat Hodges that there would told them COL Hodges a similar Q. make COL [D]id testify, opportunity for them to be no other comment to Bernstein? only trial shot for the because the government and the defense. A. Yes. response not find this Mr. Bernstein did Hodges stated Q. it that COL What was exchange satisfactory, which led to “an office, your that was while

words, in heated state on the behalf of both being contempt of court? regard to Hodges and Bernstein.” COL of, “I’m something effect It A. confrontation, During “Bernstein shot court, you contempt hold about to if up the couch and demanded to know he off (Bernstein) my in min- court one testify.” military judge “patted had to The ute....” told him to Bernstein on the shoulder and calm down.” COUNSEL 3. THE DEFENSE required was On the issue whether JB affidavit, appellate Mr. Carlson stat- In his testify, indicates trial counsel’s statement dur- “remained in the courtroom” ed that he that the stated JB would breaks, never trial ing trial that he was testify regardless of whether there was trial, that he was during and counsel’s office subpoena: “for present in trial counsel’s office testify. Hodges yes, had to [JB] COL said transpired between Col the events that again, Bernstein then became irate and Hodges and Mr. Bernstein.” why su[b]poena. asked since he had no BAILIFF Hodges that it his court- COL stated was room, testify. and would [JB] bailiff, provided by the The statements in- even more The situation then became hand, benign more describe a much the other tense: interchange noting the be- After situation. Mr. Bernstein [n]or [JB] that neither he and

Bernstein stated tween Schwartz, spoken with state- testify, concerning and that he had LTG bailiffs had to Hodg- point At this COL ment notes: LTG Schwartz. I could see he face turned beet red and es’ began At Judge Hodges [JB]. to talk very upset. around Bill Bernstein walked point, judge he didn’t military “told Bernstein Judge Hodges, desk where CPT Schwind’s General,” the incident and [JB], standing. Judge

care about myself were its conclusion: moved towards put hand on Bill Bernstein’s Hodges said, you “Let me show what Hodg- shoulder and from COL After a few more words years[’] experience can do.” es, finger at Hodges pointed his COL The statement military- notes that provided following Bernstein de- judge asked JB “if he scription wanted this situation leading up events to his over with couple this week or a of months.” military confrontation with judge: week,” JB said he wanted it to be over “this judge came out of his chambers and told him it would be [JB], get your told “If f***ing don’t resolved “this week.” a** in the court room one minute I’ll contempt find of court and call the bailiff, According to the Mr. Bernstein ex- M.P.’s.” Then he turned around and pressed concern that JB “was timid and the looked at me and asked me if I [JB’s] get defense would military to him.” The father or mother. At that I time told him judge whether, asked JB to consider if his (sic) no. Hodges Col. Kenneth looked at parents were on he would want the me and asked me f*** who the I was. I job possible. defense to do the best JB told him that was Mr. Bernstein one of agreed, and “stated that testify.” he would the character witnesses. Hodges Col. judge only said that “he wanted said, “Stay looked at me and the f*** out everyone to have a fair chance.” At that of me [JB’s] business.” Then he point, they returned to the court room and my smacked the left side of chest four or JB testified. open five times with an hand. At this time The bailiff stated that the incident was inwas so much shock didn’t know Hodges, observed “Col. Bill what to do. The walked back into [JB], myself.” He added that the door his chamber [JB] was threatened to response was closed. In investigator’s get inside of the court room. Then [JB] questions, he said that the did proceeded go into the court room. any profanity, not “use any provok- ... make ing gestures, address either Bernstein or AN EX E. DESCRIPTION PARTE OF manner, in a unprofessional [JB] hostile ... COMMUNICATION BETWEEN THE [or] make reference to either Bernstein or MILITARY JUDGE TRIAL AND regard being contempt [JB] COUNSEL court.” III.A.5., supra, As described in Section JB 5. MR. BERNSTEIN AND JB Following testified on the merits. his testi- Mr. Bernstein and JB were in court on 39(a) mony, there was an Article session to August evening, they 20. Later that met evidentiary consider an matter. Two min- military police with the provided state- 39(a) utes after the began, Article session the ments signed shortly that were after mid- announced, abruptly “We’re night. Their statements are somewhat clos- post-trial recess.” Trial counsel’s memoran- description er to the provided by of events dum following sets forth the account of the trial descriptions provid- counsel than the prior events that during occurred to and the by military judge ed the or the bailiff. 39-minute recess —events that are not re- flected the record. JB’s military statement notes that the judge came into the trial counsel’s office and testifying, While JB was trial counsel re-

told me that I f***ing had one ceived a communication minute to from another attor- ney come into the testify engendered court room to ... that and concern about whether he Bill your testify told Bernstein to Mr. Bernstein watch a** would remain and at point, before he called trial. signed the M.P.’s on At that trial the counsel a judge subpoena hit him given on the chest about three or directed that it be to Mr. four times. Bernstein. response

In questions during During the MP in- testimony, a break JB’s trial vestigation, JB, JB indicated that he had not counsel returned to his office with where subpoena, been under a that he waiting. was forced to Mr. Bernstein post-trial was his testify will, against memorandum, military his and that the provided trial a counsel de- judge testify. made him scription ensuing of the scene: stop H the rear door court screaming I him” I COL at “f***ed Bernstein is testify if Bernstein ask can have by giving subpoena---- him He is we issue, first, then the ethics because saying he’s them. address spraying the words as may up that Bernstein blow explain he I am worried that I had no choice because on the ethics subpoena. when called kept asking if had a He is on stand agrees. H prisoner Fort issue. COL yelling that he is now on being against his Hood and held will. parte was men- This ex conversation then addressed the merits of by military discussion tioned appellant: allegations against judge in his statement or memo- post-trial testify that he will Bernstein states now randum, on the nor it disclosed record Defense, for and tell the court that subsequent time or in ses- everything up. made concerning this matter. sions agitat- Mr. even As Bernstein became more ed, DE- F. MILITARY JUDGE’S says [h]e a few more times that LIMIT DISCLO- CISION TO everyone here have “f***ed him.” He AT TRIAL SURE ground phone at the and I hear throws his Following military judge pro- pieces plastic a few hit the He wall. following explanation pur- his vided stomps phone, times two or three 39(a) pose calling Article session at mouthpiece. breaking off the Mr. testified about the con- which Bernstein apparently noisy The confrontation was so frontations: that it the attention of drew another attor- not to The focus of that session was defend ney. Trial counsel assured the attor- other me, develop or exonerate whatever ney everything was “OK”. Mr. Bern- necessary parties facts were to allow down, picks up stein ... then “calms they do what needed to do.

phone playing and starts with the shattered end, just lower tells me that he has [and] military judge’s memorandum also de- damaged several-hundred-dollar-phone.” conversation that he scribed out-of-court attorney during had with Bernstein’s Trial returned to the counsel courtroom attorney permit recess called to meet the completion testimony. of JB’s Dur- Mr. Bernstein: followed, ing break trial counsel that informed Mr. Bern- questioned After I Mr. Bernstein and be- complaint against stein filed an ethical had did, fore Mr. Hewitt —a Killeen counsel military judge. This revelation led to an attorney with “his to consult —asked parte ex discussion between the client,” Though I seen Mr. Bernstein. impact trial counsel about of Mr. in the court room and was Hewitt development proceedings: something told said later Mr. Hewitt about being for Mr. didn’t there my way H On back COL tells me that he know Mr. role until asked for Hewitt’s Bernstein had called COL Clervi14 and if the asked I was recess. Mr. Hewitt him, against complaint made an ethical going contempt. to hold Mr. Bernstein allegation that the with we will address I told him I would not —could not —be- prior calling record Bernstein on the out, Mr. Bernstein had cause as it turned Bernstein as witness. proceedings. not interfered with the Trial made it clear that did not counsel he agree military judge’s military judge also described im- approach the be- with testimony pressions it at the might cause of adverse affect that have Mr. Bernstein’s the 39(a) Article prosecution’s on the case: session: Judge, supervi- who was 14. The Circuit the Chief ry. judicia- sor of within the trial apologized assaulted,

Mr. Bernstein to me. It was lieved he had been would my impression that Mr. having arranged way for some to document those spoken lawyer having to his taken a Documenting facts. those facts was not during different view the second [Article me; important then the trial was. 89(a) matter, session] on the that the mat- III.A.16., As discussed in supra, Part howev- ter was closed. er, apparent during soon became trial that Contrary military judge’s impression to the military the matter was not closed when the matter, mollified, of the Bernstein was not judge morning learned the next that Mr. evening provided later that he the mili- complaint Bernstein filed an assault tary police with a sworn alleging statement press. MPs and made a statement that he had been assaulted events, however, None of the led the judge. statement, In provided that judge to ensure that the record of trial would following explanation cooperative for his atti- “document those facts” about his confronta- during proceedings tude held earlier tions with Mr. Bernstein. day: my At lawyer gave that time me a wink IV. DISCUSSION mouth, and motioned with his “be humble.” At that time was so scared to death Appellant asks this Court to find that the being put about contempt into of court I military judge disqualified should have him- apologized went ahead and to the court for self, motion, military judge’s own Hodges’ actions outside of ... COL creating appearance of bias under RCM Hodges chambers---- COL said I do not 902(a), 902(b). Ap- for actual bias under apology need a[n] from but I will look pellant judge’s contends that the conduct in over the incident. regard appear- to Mr. Bernstein created an argues ance of judge’s bias. He Although was satisfied bringing actions in a reluctant with Mr. Bernstein’s witness to the at trial about confrontations, subsequently “us[ing] stand and his memorandum indi- the court- recognized cates that he later proceedings that the martial record to minimize and rational- provide of trial did not complete description ize his conduct” demonstrate actual bias. Fi- happened: of what had nally, appellant judge’s claims that knowledge underlying I am facts about the any inquiry confident that will be a him thorough day confrontation made a witness when the passes my one but each learning stipulation much more occurred issue came into before and evidence via my since involvement with Mr. Bernstein fact. concerning very situation. response, the Government contends memorandum, however, does not indi- appellant appearance waived the of bias cate what facts the 902(a), noting issue under RCM that on at learned since trial. Elsewhere the memo- occasions, least four defense counsel either

randum, military judge recognized expressly challenge stated that he had no 39(a) concerning the Article session the con- against make or turned down the provided comprehen- frontation could have opportunity question judge. re-With sive disclosure of the facts: 902(b), spect to actual bias under the Govern- IWhile could have turned the into session position ment takes the there is no discovery happened of what between Mr. against appellant evidence of in the rec- bias me, Bernstein saw that as unneces- gained ord and no evidence that sary. parties they had the facts want- knowledge proceedings about the from an ed and did not wish to insert the other extra-judicial fur- source. The Government unnecessarily matter into the trial. argues agreement parties ther that the of the He added: regarding stipulation to enter into a of fact possibility

Had I known that the matter the out-of-court events vitiated the wasn’t closed really judge and Mr. Bernstein somehow that the would become a witness. be- clearly testimony was a judge’s dis order of such review a decision on the We prosecution. the strategic point for qualification for an discretion. abuse of Norfleet, v. 53 MJ United States record lapses other that There are (2000). impossible to find full disclosure for make it 902(a). military judge

purposes of RCM responsibility fulfill his fundamental failed to 902(e) UNDER A. WAIVER RCM forth the trial set a that record of to ensure 902(a) military provides that “a RCM of out-of-court events complete account the judge disqualify herself shall himself or and the issue of bearing upon his actions military judge’s in which proceeding that memorandum, judicial impartiality. impartiality might reasonably ques be acknowledges military judge did the only disqualifi This is the for complete description tioned.” basis of provide a not may by party, provid waived cation that be a with Mr. Bernstein because he confrontations by hoped a full those not become an “preceded ed that the waiver is events would III.F., supra. To for at trial. See Section on the record the basis issue disclosure the out-of-court 902(e). the extent that elements of disqualification.” RCM record, placed on it is diffi- the events case, post-trial filings indicate In this the precisely happened cult to determine what military judge fully that the disclose did mili- during the confrontations between the reasonably a the that could raise events pri- tary judge and Mr. Bernstein. This Foremost, question impartiality. about his marily military judge’s result of fail- the III.E., military as supra, noted Section provide description a of the ure to coherent judge parte never disclosed ex conversa- record, preferring on the instead to events affidavit, tion in trial described counsel’s in an place Mr. Bernstein on the stand Arti- military judge which states that the acceded 39(a) him question session and about the cle request Bern- trial counsel’s to allow Mr. minimized episodes a manner that testify taking up stein on the merits before of information about events. disclosure the issue of the confrontations out-of-court that Mr. learned When complaint Mr. Bernstein’s about complaint had filed about Bernstein their judge. Although judge’s initial reaction confrontations, judge’s out-of-court was disclose his with Mr. confrontations provide complete responsibility to and co- immediately Bernstein on the record description of the on the rec- herent events learning complaint, counsel’s the trial ord. states that memorandum timely If the had made a agreed expressed when trial fear counsel parties full disclosure allowed the approach that such an could detonate disqualification whether waive the decide personality spoil volatile Bernstein’s procedure in in accordance with the Canon prosecution’s case. of the Code of Conduct for United States 3D pro- Judges, legally alternative or a sufficient matter was not to defense This revealed cedure, fully the record have could docu- only light counsel at trial and came to when any waiver. mented appellant trial memoran- obtained counsel’s years Although dum two later. the decision Because the did ensure ulti- proceed on with Mr. Bernstein how to the record reflected a full disclosure as judge, 902(e) mately with the de- by rested required RCM condition that —a informed of precede disqualification fense counsel entitled waiver must involving developments inappro- an adverse witness appearance of bias —it would be engage present and to about state of the priate discussion to conclude timing Mr. that the counsel waived the Bernstein’s record defense confrontations, disqualification See given in this case.15 merits versus issue part effort the witness By end of the counsel com- of his to discredit defense stipu- prehended putting in a Bern- the matter before the members sufficient details about Mr. noted, As the has with the use the events lation of fact. Eleventh Circuit stein’s conflicts 78

generally City responsibilities v. Port unable Potashnick Construc to fulfill his under (5th Co., 1101, Cir.), 703(c)(1) tion witness, 609 F.2d 1115 cert. produce RCM to the denied, 820, (2) 78, 449 101 U.S. S.Ct. 66 parties without the involvement of both (1980)(the parties’ request 22 L.Ed.2d for the By the inquiring, court-martial. mili- the judge preside the trial over did not consti tary judge erroneously assumed that the wit- preclude appellate tute waiver and review of subpoena. ness had been a issued That mis- disqualification 455(a) § 28 under USC be only taken belief not led to the confrontation judge’s potential cause the disclosure of a appears but also to have source of bias did not reveal all bases for greatly animosity contributed exhibit- Emerick, challenge); v. Barksdale 853 F.2d during episode. ed 1359, (6th Cir.l988)(refusing 1361-62 to find Although appropriate military it is for a potential waiver when full disclosure of basis judge play role in promoting active record). disqualification for not on efficiency trial, judge of a this case did B. APPEARANCE OF BIAS not even explanation ask trial counsel for an 902(a) RCM UNDER of what transpired help or whether “Any conduct that would lead a Indeed, judge’s needed. appears action knowing reasonable man all the circum contrary to have been to trial counsel’s stances judge’s conclusion III.A.4., at wishes the time. See Section ‘impartiality might reasonably questioned’ be supra. judge military acknowledged judge’s is a basis for disqualification.” post-trial his by memorandum he erred Kincheloe, 40, United States v. 14 MJ 50 involving question himself of JB’s (CMA 1982) Thode, (quoting E. Reporter’s availability respon- when that matter was the (1973)); Notes to Code of Conduct Judicial 60 sibility of the trial counsel. See Section III. Wright, case, 52 MJ at 141. the D.I., supra. military judge committed several acts that 2. FAILURE TO ENSURE THAT reasonably would put impartiality into THERE FULL WAS DISCLOSURE military judge’s impartiality doubt. a “When AND A COHERENT RECORD OF challenged whether, appeal, on the test is THE OUT-OF-COURT CONFRONTA- taken as a whole the context of this TIONS fairness, legality, impar court-martial’s tiality put by doubt” into previous As discussed in the section on judge’s Burton, actions. United States v. 52 waiver, put failed to forth (citations (2000) MJ and internal clear, coherent, complete record of his omitted). quotation appeal, marks On “[t]he acknowledged ouUof-court actions objective, judged test is from the standpoint, he did not do so he did not think because of a person observing pro reasonable confrontations the witness ceedings.” Id. would at become an trial: “I saw that issue [full confrontations] disclosure of then as un-

1. IMPACT ON THE PRODUCTION necessary. ... I known that Had the matter (JB) AOF WITNESS arranged wasn’t closed ... I would way some those document facts.” The judge interjecting erred fact perform duty that the failed to problem himself into the JB’s failure to fully appear events on ascertaining without disclose the the record first the facts. clearly after the became step leaving He took the events an issue at unusual person ques- bench trial could during engaged a trial and in out-of- cause a reasonable court, (1) judge’s impartiality proceed- off-the-record without first tion the actions: determining ings. the trial whether counsel was ord, may particularly regarding parte "a recusal issue abused as an element the ex conversa- counsel, militaiy strategy” party of trial in which refuses to raise tion between the and trial ruling precludes concluding

the issue until an adverse us that defense coun- from stipulation Kelly, present merits. In the sel’s advancement of constituted F.2d case, however, incomplete confusing rec- waiver.

79 no indica- record contains hopes, Contrary judge’s his confron- to follow resolved, of the matter became a central tion how with Mr. Bernstein tation trial, the Govern- personally simply inference that at and his failure to leaves an issue interlocutory it makes an describe what occurred out-of-court not to submit ment decided 62, UCMJ, exactly § happened. what USC 862 difficult to determine Art. 10 appeal. Cf. States). many ambiguity flows from sources. The (appeal by the United First, dis- record contains numerous the accuracy of trial assuming Finally, the military judge and vari- the cussions between memorandum, the counsel’s courtroom, spectators none of ous parte conversation an ex failed to disclose Often, witnesses. these whom were sworn as timing Mr. the of counsel about with trial incomplete cryptic contain discussions the merits.16 This on Bernstein’s persons and rela- whose duties references dismissed minimized or cannot be discussion defined, tionship proceedings the are not The merely decision. as an administrative not described as as references events well judge’s with Mr. confrontations in the record. The failed credibility, became cen- and Mr. Bernstein’s ensure that the reader of record would re- himself tral issues at trial. understanding significance an of have role peatedly emphasized Mr. Bernstein’s and context of these discussions. him the and described as the defense case Second, military judge’s interaction heel.” Later in the prosecution’s “achilles with witnesses and counsel was marked trial, stipulation proposed when defense interruptions, incomplete numerous sen- confronta- regarding the out-of-court of fact tences, persons and and references to events tions, expressly ruled that significance explained. whose was not the merits. events relevant on those Third, the record reflects least one off- Ex with counsel parte contact touching under the-record session RCM 802 under recusal RCM does not necessitate issues, on which was these substance of 902(a), if particularly the record shows adequately summarized the record. communication did involve substan Fourth, vague ref- the record also includes one or evidence favoritism for tive issues variety develop- erences to a of out-of-court Alis, 817; 47 In re Federal side. MJ at incomplete as ments with information to con- Cir.1982). (8th Cases, 1175 Skywalk 680 F.2d and little no indication as to the text or However, parte communication “which an ex information, source of the or whether the give appearance might the effect or with, from, information came or was shared advantage party” to one granting undue of counsel. v. Wilk cannot be condoned. United States Fifth, regarding the record trial counsel’s (CMA1975). erson, 1n. 1 MJ military judge and trial motion to recuse the complete provide for disclo- failure to prosecution’s counsel’s announcement of First, major problems. created sure two interlocutory appeal an intent submit par- deprived such absence of disclosure military judge’s denial of that motion is their deci- adequate foundation for ties unclear. The record describes the request or not to recusal. sions whether judge’s whether the denial could views about Second, complete could have disclosure military judge’s appealed, as well likely (CPT made it more that the spectator various conversations with clearly and considered counsel, would have identified Henry), about the rather than trial determining is difficult those facts crucial whether appeal. Much of the conversation parte problem trial trial counsel’s ex conversation 16. Another disclosure set forth in memorandum, appel- where he describes Mr. judge. counsel’s statement forms the basis for explosion temper his office and Bernstein's Issue V that the Government lant's claim in announcement would Mr. Bernstein’s material, exculpatory evidence. failed to disclose eveiything testify “was the defense that We matter in our remand in Section address this made-up.” This was never disclosed incident IV.C., infra. directly preceded during defense appearance judge’s personal there was a conflict knowledge conflict of out-of-court requiring disqualification. judge’s placed events and that stature credibility credibility and in the contest with IMPACT THE ON CONTENT witness, clearly of a questions raised about OF STIPULATION 902(a). impartiality his under RCM entanglement The military judge’s of the 4. CONCLUSION actions with substantive deep- issues at trial stipulation ened with the by of fact advanced above, by As outlined several actions the defense. Near the of end defense the appearance created an of counsel put moved to the details of the mili- 902(a). bias under RCM light In of the tary judge’s with confrontations Mr. Bern- military judge’s provide failure to full disclo stein before the stipulation members via a of record, on sure the the at moment which he stipulation fact. The described fully events disqualified first should have himself cannot (the only known to or persons two three identified, precisely be but it became neces JB) military judge, Mr. and sary when defense counsel announced that he (trial partially by known others counsel and going was to make the confrontations be bailiff). the purpose stipulation The of the judge tween the and Mr. Bernstein an issue was to contrast Mr. conciliatory, Bernstein’s respect on the with merits to Mr. Bernstein’s in-court about the events credibility. least, very judge At the the subsequent complaints, placing comparison a disqualified should have himself when judge’s credibility Bernstein’s stipulation presented judge was and the credibility directly before the members. in negotiations found himself the midst of prosecution (1) agree would not to the that would: complete determine how a stipulation, arguing that description out-of-court of the confrontations should be events not relevant to the merits. made, Trial under circumstances where he had immediately recognized counsel stip- that the personal knowledge of events not known to impermissibly put ulation would (2) party; adversely either reflect judge position being of a witness professional own conduct. proceedings he one was of the few —since a Had made full disclo- people complete with direct and knowledge outset, might at the sure the facts therein regardless about the of whether the events — disqualification, have led him to announce a stipulation was titled as of one “fact” rather law, point, at applicable which under “testimony.” than parties proceeded could have with a new military judge urged the trial counsel judge, they expressly or could have waived accept stipulation, noting only that his disqualification provided by as RCM bring alternative was to Mr. Bernstein to the 902(e). testify stand to about the events. As for witness, being judge erroneously told (the C. REMEDY

trial judge) stepped counsel that if down, the Government would face a mistrial judge A conclusion that a should have dis- possible operation jeopardy. of double qualified ap- himself or herself does end However, judge disqualified if the him- 902(a) pellate ap- review. Neither RCM nor point self at this becoming because he was federal, plicable civilian standards mandate a witness, judge involved as another particular remedy for situations in which an assigned proceed- could have been appellate court determines that a ings stipulation have could continued. The from should removed himself or herself admitted into evidence after the See, 862, e.g., Liljeberg, a case. 486 U.S. further editing involved himself it and (“There 108 2194 need be S.Ct. a draconi- suggesting changes parties. to the 455(a).”). § remedy every for violation military judge’s partic- Liljeberg, continued In the Court established a three- ipation case, determining development part test whether reversal stipulation granted remedy extensively that relied a decision be as a should

81 transpired descriptions of what recognize that his inconsistent judge has failed to when a well. required at trial as disqualification because her reasonably might judge’s impartiality rec- with the light of these difficulties questioned: ord, proceed- ease for further remand this we appropriate to ... it is We conclude opinion ings in accordance with parties injustice consider risk DuBay, v. 17 USCMA United States case, particular the risk (1967). There, the record can be CMR injustice produce will denial of relief (1) actually hap- fully developed to: what cases, undermining the risk of other the mili- between pened in the confrontations judicial pro- in the public’s the confidence (2) Bernstein; tran- what tary judge and Mr. continuously in mind must bear cess. We (3) conversation; the spired parte in the ex perform high the to its function Mr. Bernstein’s significance and of nature justice satisfy appear- way must the best defense; (4) testify alleged the threat to for justice. ance of knew at trial what details defense counsel (5) occurrences; and whether about these (internal citations Id. at 108 S.Ct. 2194 the trial and occurrences affected these omitted). quotations and involving RW. charges military incomplete judge’s disclosures does include our remand not We note that appear to parte and conversation ex involving military victims. charges the the However, prejudiced appellant. we cannot relationship no with the Mr. Bernstein had any certainty apply Liljeberg test the victims, he did not influence them to military the of record this case because state the incidents, testify on report and he did not (1) the impossible to what makes it determine: charges. respect to those the merits with actually happened military between the Likewise, clearly link the (2) the defense did Bernstein; precisely what and Mr. the confrontations between counsel knew about the confronta- defense validity to of the the (3) and Mr. Bernstein ongoing; tions the trial was and while concerning charges the victims. impact had on the entire what these events Likewise, although trial de- trial. counsel and Mr. parte scribed the ex conversation OF PART B. LEGAL SUFFICIENCY defense, testify threat to for the Bernstein’s INSTRUCTIONS, EVIDENCE, THE impact

the of these is also un- occurrences EXPERT AND TESTIMONY clear. filings post-trial consid- and affidavits THE EVI- OF I. LEGAL SUFFICIENCY clarify by ered the court below do these DENCE SUPPORTING they gaps and because also contain issues OF FORCIBLE SODOMY CHARGE I) example, For there are (ADDITIONAL inconsistencies. CHARGE great disparities neg- between trial counsel’s military judge’s description

ative ac- A. BACKGROUND (aggres- during events tions the out-of-court committing of convicted Appellant was sive, confrontational, profane, unaware and RW, teenager sodomy upon a civilian forcible subpoenaed), the had not been de- that JB alleged age 16 at time of the under the of during scriptions placed on the record sufficiency crime, challenges legal 39(a) session, descriptions in Article appeal conviction evidence post-trial judge’s statement and memo- III). (Granted testimony of the Issue randum. the al- provided only evidence of victim leged RW testified disparities in sexual contact. are the record as There also night chronology of following events observed to whether defense counsel appel- question: to the movies with the mil- RW went interactions between the out-of-court lant, appellant’s which he returned itary The docu- judge and Mr. Bernstein. morning, while asleep. In the attorneys in house and fell prepared by the ments various awakening, appel- process post-trial reflect RW was reviews course back, (Granted began massaging by lant his then issued Issue Appellant unzipped stomach. then IV). RW’s summary surrounding A of the facts pants began genitals. fondle RW’s findings instructions follows. According testimony, to RW’s he often had 39(a) During following an Article session difficulty waking up, struggling and he was findings arguments by par- the close of However, during to awaken these events. ties, regard extensive debate ensued with appellant partially once removed RW’s appropriate content of the instructions pants expose penis, appellant he asked presented to the members before deliber- doing. Appellant what he did not re- par- ations. The showed spond, put upper leg but one hand on RW’s ties outline of instructions he had other proceeded on his stomach and prepared parties and informed the of his orally approximately sodomize him for copy intent to distribute of the outline to initially seconds. RW testified that he was each member at time of oral instructions. contact, shocked the oral once he fully pushed happening, realized what was objected outline, Defense counsel appellant away ran to the bathroom. arguing confusing that it was that and the conference, requested At the Government required rely members should on to their (1) that the members be instructed inca- on: military judge own notes. The overruled the (2) pacity sleepiness; to to consent due and objection proceeded and the to issue outline years possible explana- the victim’s tender immediately prior giving to each member to response tions for the initial victim’s lack of oral the instructions. He advised his judge to the sexual contact. The the issued govern oral instructions in the would event of instructions, requested appellant and did not conflict the written instructions. object given. the instructions The written and outline the oral instruc-

B. DISCUSSION initially given in tions the flawed fol- legal sufficiency The test the (1) lowing respects: military judge the er- of to support finding guilty evidence is roneously the instructed members whether, when the evidence is viewed req- constructive force could constitute the light prosecution, “any most favorable to the sodomy force to uisite commit forcible rational trier of could fact have found the (2) RW; the members were instructed that beyond essential elements of the crime given regarding the law the Virginia, reasonable doubt.” v. force for forc- Jackson 443 319, 2781, sodomy specification applied equally U.S. 99 S.Ct. 61 L.Ed.2d 560 ible (1979). Particularly light military (3) in of the specification; the indecent assault the judge’s years instructions on tender inca and erroneously instructions the omitted mis- pacity to sleepiness, due a rational factfinder respect take-of-fact defense with to the reasonably could the ba determined on RW; (4) charge sodomy of forcible sis of the evidence introduced at trial that erroneously the instructions omitted the the sexual contact described RW occurred tender-years specifica- instruction for the pro his without consent while he was in the concerning tion RW. awakening, steps cess of and that he took military judge After the the oral issued the terminate contact once he became aware instructions, military trial counsel called the Similarly, by appellant of it. the force used judge’s the of the attention to exclusion ten- to make contact under these circumstances der-years support instruction. charge was sufficient to the forc sodomy. immediately ible added omitted instruction. Following argu- Government defense

II. FINDINGS INSTRUCTIONS on findings, ments ob- A. BACKGROUND erroneously served that he had failed to instruct the members on the defense of Appellant appeal prejudicial claims on findings He proceeded errors occurred instructions mistake of fact. then

83 ultimately case. given mem- were instruction to give omitted sig- of the advised repeatedly members were bers. longest-lin- military judge’s nificance of of delibera- approximately two hours After respect to the error with gering instructional request tion, with a the members returned they charge, indicated indecent assault of the force element for clarification they the mistake understood military specification. The indecent assault panel presumed to under- A is correction. members’ attention called of the mili- the instructions stand and follow incorrect, proceeded written instructions competent tary judge absent evidence instructions, incorrect, oral to re-deliver Loving, 41 MJ at 235. contrary. erroneously informing the once members requirement of again that the constructive distinguishable from This case sodomy rape for a or forcible actual force (CMA Curry, v. MJ United States equally applicable to indecent charge 1993), did a case which assault. by issuing his ultimately error correct pointed Although out er- in The trial counsel then appropriate instructions. pre instruction. Over complex the indecent assault in this ease were not ror structions objection, judge recalled organized defense or coherent sented in the most them of the mistake the members inform circumstances possible, fashion under these He re- and to correct instructions. issue discre did abuse significance emphasized peatedly in overall manner in which the tion error, them cross out the incorrect asked were delivered. structions information on the written outline write of discretion had there been abuse Even force for in the Benchbook17 definition of here, by appellant would the assault, orally indecent and delivered prejudice, no the effect of as suffered He asked the standard instruction. then military error was judge’s instructional they were clear on the members whether over an hour that members deliberated for remedy, mistake its and the members and appel- to under instruction more favorable an They agreed they recom- understood. to which he proper lant than the instruction approximately 45 menced deliberations for was entitled. minutes with a verdict. and returned EXPERT III. OF ADMISSION B. DISCUSSION WITNESS TESTIMONY propriety of The the instructions A. BACKGROUND given military judge is reviewed de Maxwell, 406, v. 45 MJ novo. United States teenage delayed The victims three (1996). 424 periods rang reporting the incidents time ing more a month. The from a week to than judge initially military delivered Emeriek, expert, an Mr. Government offered in this incorrect instructions on the law case. subject delayed reporting testify of to them, suc Had he failed to correct or even by victims of abuse. of sexual assaults correcting neglected to ceeded in them but instructions, laying for the relevance clearly re foundation withdraw the earlier testimony reliability of Mr. Emerick’s required. States v. and versal would be United 507, 106, 504, expert, an the Govern- Truman, qualifying and him as 19 USCMA 42 CMR testimony (1970) (“Later the witness ment from instructions do not introduced 109 correct According credentials. remedy clearly respect his defect in the absence of testimony, a bachelor’s the witness had first in shown withdrawal of the erroneous structions.”). degree However, degree psychology and a master’s in counseling,” complet- had “guidance in in and clearly retracted and then corrected these degree. He of a doctoral necessary of instructions ed three-fourths errors. All 1982). (1 Judges’ 27-9 Benchbook, of Pamphlet May Army Department Military 84 (3) literature; in specialized

had and relevant these studies did not treatment risk (4) offenders, error; in assessment sex of treat- indicate known rates of he did years. ment of victims of sexual for 16 groups abuse of for the know the sizes studies Approximately practice (5) two-thirds of his was upon relying; one which at offenders, working devoted to with sex time, prohibited Mr. Emerick from con- spent treating the remainder victims. He ducting in of tests the state Arizona due estimated he had or evaluated treated charges practices. of unethical The evidence 1,000 approximately of survivors sexual practice also that he indicated continued abuse. appellant’s had Arizona at time of never been convicted offense of related further witness testified he had practice, to conduct of his and that his license presented eight major papers seven or in this had never been revoked due nature published field and had two articles. He had quality his work. of taught at several and lectured universities professional specialized programs. several questioned Mr. then experience His assessment treatment Emerick, and further information was devel- perpetrators of and victims sexual abuse oped principles upon indicate that included work Canada and United rely testifying which he would were valid respect qualification States. With generally accepted in the scientific com- that, expert, an the witness offered on over munity, would articles which consti- occasions, previous 100 he had testified in not, partial tute a basis for his expert court as an field of sexual knowledge, to his been discredited. The mil- abuse. itary judge accepted Emerick as ex- an pert in sexual “the treatment of both offend- Citing Daubert v. Merrell Dow Pharma- ers and those stated to be victims ceuticals, 2786, Inc., 509 U.S. 113 S.Ct. (1993), same.” counsel L.Ed.2d defense chal- lenged Mr. Emerick’s credentials as a wit- question

ness an and indicated intent him B. DISCUSSION potential general about the rate of error and opinion testimony by ex acceptance Admission upon studies which he was pert governed by relying. military judge then in a court-martial is Mil. The made the However, 702, following “Okay. qualification statement: that of requires R.Evid. which qualifications, goes go skill, doesn’t his it “by to to how expert knowledge, experience, mean, good opinion is or Daubert, not. do training, or education.” In the Su really qualified say think I’m to that whether preme judge held that a trial is re Court or or not his answer is correct not?” De- quired preliminary a of to make assessment that, Daubert, responded fense counsel under reasoning un methodology whether the or it responsibility judge was the of trial to testimony derlying expert’s scientifical make a on the determination based factors sound, ly reasoning or and whether that in that enumerated ease. The properly applies to at methodology the facts Daubert____ replied, “I know But what 592-93, issue. U.S. at 113 2786. 509 S.Ct. going going we’re do is to to we’re focus on Co., v. Subsequently, in Tire Ltd. Kumho M.R.E. 701.” Carmichael, 137, 119 1167, 143 526 S.Ct. U.S. (1999), Supreme Court held L.Ed.2d 238 dire, During voir defense counsel elicited only applies expert to that Daubert testi (1) additional in one trial in information: mony upon knowledge, “scientific” based qualified which an Mr. Emerick had been as specialized” also to “technical” and “other expert, appellate an state later over- court knowledge by 702. Id. covered Fed.R.Evid. qualification ruled that and stated that his 146, 119 Court at 1167. The noted S.Ct. qualify him credentials insufficient to as (2) “gatekeeping has a function” the trial expert; testimony an Mr. Emerick’s all in and inquiries these to “ensure predicated single study, a would be not on only compilation [expert] testimony ... ... is not rele- but on of from the a studies

85 gener- id, vant, 147, repudiated, and were at 119 S.Ct. had not been but reliable.” Id. community; ally accepted within the scientific 1167. (4) practice to he still retained licenses and provide expert wit- of evidence rules treating victims personal experience and had latitude than with testimonial broader nesses record, this of sexual abuse. On theory the ex- witnesses on the “that other qualify- his discretion did not abuse opinion will a pert’s have reliable basis expert admitting an and ing witness as this knowledge experience discipline.” and of his MRE and 702. under Daubert cases, 148, 1167. In Id. at 119 S.Ct. some reliability determination focuses on the opinion PART C. CONCLUSION expert’s qualifications to render the 151, question. id. See at 119 S.Ct. 1167. Army of the United States decision others, might it center factual basis Appeals is affirmed Court of Criminal opinion. give data rise to the See id. or Charge 1 II respect specifications 3 of 149, 151, at 119 1167. Daubert and S.Ct. respect to Additional but set aside with ensuring at Kumho Tire were aimed of Charge I sentence. The record evidence, reliability including overall Judge Advocate returned to the Gen- trial is for any information used to form the basis proceed- Army DuBay further eral of the opinion. ings the issues set forth Section to address proceed- opinion. After such A.IV.C. Court articulated number factors concluded, along ings the record of are in Daubert which can be useful to consider findings of judge’s fact with the reaching respect such determination with law, will returned to conclusions theory technique, given including or Appeals for further review Court of Criminal tested, whether it can be whether it has been 866(c). UCMJ, 66(e), § under Article 10 USC review, subjected peer poten its known that court conclude that events Should error, acceptance general rate its tial 594-95, in a charge involving RW man- affected community. in the scientific 509 U.S. appellant, Additional prejudicial ner S.Ct. 113 Charge specification shall be dis- and its case, In the present initial comments some rehearing on shall be missed and a sentence military judge suggest that he did not that court conclude that the ordered. Should plan apply appropriate analysis under involving charge events did affect Daubert, rely he intended to prejudicial appellant, manner RW in a However, in its Mil.R.Evid. alone. totali- respect may findings with again affirm the ty, the record demonstrates that ultimate- Charge specification, I and its Additional ly appropriate undertook the considerations 67, UCMJ, Thereafter, the sentence. Article Moreover, provided in Daubert. the sci- § apply. shall USC principles entific to which the witness was Alternatively, Judge if the Advocate Gen- testify namely, general called to theories — practicable to it is not eral determines that tendency explaining the of victims of sexual hearing, Charge DuBay conduct a Additional delay reporting abuse incidents as- specification I and shall dismissed and its be particularly not novel or contro- sault —were rehearing a shall be ordered. sentence versial. Appellant challenge did not the relevance SULLIVAN, (concurring in Judge Senior testimony. the Emerick witness’s Mr. part): part dissenting in opinions in his this case were testified that findings I experience and on affirm the and sentence based both on own an would majority agree opinion the analytical this case. with overview of studies field. (1) sufficiency-of-evidence regarding ques- that: the he relied the He testified studies III) (2) (Issue the peer-reviewed; rates of tion admission of upon were VI). (Issue studies, expert How- reported in the but he witness’s error were ever, majority’s handling disagree of the for each with presently lacked recall rates (Issues (3) scientifically disqualification I and study; val- of the issues the studies 86

II). view, my In upon request process did not due violates where the by himself, choosing disqualify err not to nor guilt evidence is either material Army did the by affirming Court err punishment, irrespective good of the faith or Additionally, decision. the erroneous in- prosecution.” Brady bad faith of the v. Ma (Issue TV) plain struction did not 87, constitute 83, 1194, ryland, 373 U.S. 83 S.Ct. 10 error, (Issue “exculpatory” evidence 701(a)(6). (1963); L.Ed.2d 215 see also RCM V) not was material. In comply materiality order to with the com ponent doctrine, Brady Supreme of the assessing whether should Court examines whether “the favorable evi 902(a), have recused himself RCM under reasonably put dence could taken Courts-Martial, Manual for United States light whole case such different as to (1995 ed.), majority claims that undermine confidence in the verdict.” judge’s put behavior in this case the court- Greene, 263, 290, v. Strickler 527 U.S. 119 fairness, “legality, martial’s impartiality” 1936, (1999) 144 (quoting S.Ct. L.Ed.2d 286 agree doubt. 56 atMJ that the 419, 435, 115 Kyles Whitley, v. 514 U.S. S.Ct. inappropriately behaved 1555, 131 (1995)); L.Ed.2d also 490 see Unit by interjecting this case himself into a dis- Williams, (1999). 436, ed v. States 50 MJ 440 pute witnesses; however, with the appellant At issue this case is a made statement prejudice not respect has shown with witness, government upon Mr. the offenses for which was convicted. See learning that he been subpoenaed, Liljeberg v. Acquisition Health Services defense, “testify he would for the and tell the 847, 862, Corp., 2194, 486 U.S. 108 S.Ct. 100 everything court up.” made was Defense (1988)(examining L.Ed.2d 855 violations of Appellate Exhibit E. statute, 455(a), § the federal recusal 28 USC error); 59(a), for harmless see also Article The failure to disclose Mr. Bernstein’s UCMJ, 859(a). § 10 USC As the lower court material, below, statement was not as I show recognized, judge’s confrontation with would “undermine confidence in the “played directly Mr. Bernstein into the de- Strickler, supra. verdict.” See Assuming theory” fense’s a “manip- that Bernstein was arguendo that Bernstein had indeed invented Quintanilla, ulator.” See United States v. 52 entirety testimony, of his his fabrications (Army Ct.Crim.App.2000). MJ credibility would not have affected of the importantly, appellant More was found all, victims. First of Mr. Bernstein had no guilty against the two civil- offenses connection with the two victims. ians supporting whom Mr. Bernstein was at Also, appellant acquitted charges this court-martial. victims, involving two civilian Bennett and Finally, majority although Sweeney, supposedly did not re- in Mr. Bernstein’s it, solve I would face the issue of whether appellant “control.” While convicted potentially victim, Government’s failure to charges disclose related to the third civilian exculpatory appellant’s Welton, statement violated had minimal Bernstein contact (Issue V). process rights According him; due allegations to with Welton discussed the Court, Supreme father, “[government suppres- never Mr. Bernstein. Quintanilla, of] sion evidence favorable to accused See at 841. MJ See Art. The Drafters’ notes 902, grounds disqualification only for RCM purpose “[t]he of this section is analo- waived, appearance may of bias be RCM 455(b)(3).” gous § to that of 28 USC Manu- 902(a), full after disclosure of the basis on the al, supra at A21-51. 902(e). record. RCM 902(a), appear- courts, RCM which parties may addresses In federal civilian raise bias, requires disqualification by motion, ance of judge of a the recusal issue but the duty judge’s impartiali- sponte when “that also has a sua to determine ty reasonably preside whether he might questioned.” or she should continue to be This is proceeding. over a Davis v. Board applied School the same standard as under the fed- 455(a). County, statute, Commissioners Mobile 517 F.2d § eral civilian 28 USC (5th Cir.1975)(28 1044, § 1051 USC 455 is (a), disqualification Under subsection is re- self-enforcing part judge; of the quired “in proceeding in [the] which may by party by be asserted motion in trial military judge’s impartiality might reason- court, through assignment appeal, of error on ably questioned,” though even the evi- mandamus). by interlocutory appeal, dence does not establish actual bias. expressed opinion Some circuits have appearance designed standard is to enhance that, disclosing might information that public integrity judi- confidence in the of the disqualification form a basis under system. cial Liljeberg v. Health Services 455(a), § should make his own 847, 860, Acquisition Corp., 486 U.S. asking determination on the issue without 2194,100 (1988). S.Ct. L.Ed.2d 855 The rule express judge’s counsel to their views on the parties also serves to reassure the as to the ability Kelly, to sit. See United v. States proceedings, fairness because the line (11th 732, Cir.1989)(holding, F.2d 746-47 in appearance reality between bias circuits, accord with other that a federal may be thin so as to be indiscernible. judge should make his own decision on dis Flamm, 151; § supra, 5.4.2 at see also Li- qualification frequent “[t]he because too (Kenne- 565,114 teky, 510 U.S. S.Ct. 1147 practice advising possible counsel of a J., dy, concurring judgment)(“In mat- conflict, asking counsel to indicate their ethics, appearance reality ters of often approval judge’s remaining particu of a in a one.”). converge as fraught potential lar case is coercive practice elements which make undesir short, 455, § RCM like 28 USC able.”). requires disqualification consideration of un-

Case Details

Case Name: United States v. Quintanilla

Court Name: Court of Appeals for the Armed Forces

Date Published: Oct 19, 2001

Citation: 56 M.J. 37

Docket Number: 00-0499/AR

Court Abbreviation: C.A.A.F.