UNITED STATES, Appellee, v. John A. WEISBECK, Chief Warrant Officer Two, U.S. Army, Appellant.
No. 98-0646. Crim.App. No. 9502215.
U.S. Court of Appeals for the Armed Forces.
Argued Dec. 17, 1998. Decided June 30, 1999.
52 M.J. 461
Crawford, J., filed dissenting opinion.
GIERKE, J., delivered the opinion of the Court, in which COX, C.J., and SULLIVAN and EFFRON, JJ., joined. SULLIVAN, J., filed a concurring opinion. CRAWFORD, J., filed a dissenting opinion.
For Appellee: Major Lyle D. Jentzer (argued); Lieutenant Colonel Eugene R. Milhizer (on brief).
Judge GIERKE delivered the opinion of the Court.
A general court-martial composed of officer members convicted appellant, contrary to his pleas, of taking indecent acts or liberties with a child (2 specifications), indecent assault (2 specifications), committing indecent acts (1 specification), and communicating indecent language to a child (3 specifications), all in violation of Article 134, Uniform Code of Military Justice,
This Court granted review of the following issue:
WHETHER THE MILITARY JUDGE ERRED IN LIMITING APPELLANT‘S CONSTITUTIONAL RIGHT TO PRESENT A DEFENSE BY DENYING A CONTINUANCE TO PROVIDE, AT NO COST TO THE GOVERNMENT, FOR THE APPEARANCE OF AN EXPERT WITNESS AND, ADDITIONALLY, TO ENABLE THAT EXPERT TO ASSIST IN THE PREPARATION OF THE DEFENSE CASE.
For the reasons set out below, we reverse.
Factual Background
In April 1994, appellant was tried by a general court-martial at Fort Devens, Massachusetts, for sexually assaulting two teenaged brothers, and he was acquitted. Appellant was represented by a civilian, Michael J. Coughlin, at the Fort Devens court-martial. The thrust of the defense in the Fort Devens court-martial was that the two alleged victims had fabricated the accusations to get attention and better treatment at the hospital where they were undergoing psychiatric treatment. Dr. Edwin J. Mikkelsen, an associate professor in the Department of Psychiatry at the Harvard Medical School, testified for the defense at the Fort Devens court-martial “as an expert in false sexual abuse allegations by adolescents.” 48 MJ at 573.
In July 1995, at Fort Rucker, Alabama, appellant was charged with the offenses outlined above. Like the Fort Devens case, the alleged victims were two adolescent boys.
At a docketing session on September 14, 1995, the Fort Rucker case was scheduled for trial on either October 4 or October 12, with an
On September 25, the detailed defense counsel requested a continuance until October 12, and the military judge granted it. At the
After the
On November 20, at a telephonic
Before the court-martial convened on November 29, Mr. Coughlin filed a written request for a continuance, setting out Dr. Mikkelsen‘s qualifications and describing his involvement in the Fort Devens court-martial. The written request also recited that Mr. Coughlin contacted Dr. Mikkelsen “upon entry of appearance“; that Dr. Mikkelsen requested updated counseling records on the Devens boys to update his analysis of the case; that the defense requested the records on October 20; and that only partial records were supplied, less than a week before the scheduled trial date of November 29. The written request concludes with the following:
The defense wishes to utilize Dr. Mikkelson [sic] to independently examine the victims, their records and statements, to ascertain whether the boys [sic] actions and behavior may instead constitute or be consistent with that of false allegations. Dr. Mikkelson [sic] is unavailable during the week of November 28th, and the defense requests the matter be continued to January 10th, 11th and 12th, 1996 to allow his attendance.
Regarding “alternate means,” Mr. Coughlin informed the military judge at trial that there was no verbatim transcript of Dr. Mikkelsen‘s prior testimony because the court-martial resulted in an acquittal. Trial counsel informed the military judge that the Government had offered to arrange a video teleconference, but Dr. Mikkelsen was unable to participate. 48 MJ at 573. In opposing the continuance, trial counsel asserted that civilian defense counsel lives in or near Boston, where Dr. Mikkelsen teaches and practices, but that he made no effort to contact Dr. Mikkelsen until shortly before the
The prosecution case rested primarily on the testimony of the Rucker boys and the Devens boys. When the military judge denied the defense motion in limine, he noted that “the record of trial in the previous case is, in fact, the defense‘s defense“; and he opined that, “while the defense has objected to it, it is clear that it is in their interest to have this admitted.”
The theory of the defense was that BT, the older of the Rucker boys, broke into appellant‘s house, looked at his pornographic magazines, drank his beer, and rummaged through his personal papers, where he found documents and newspaper accounts pertaining to appellant‘s previous court-martial at Fort Devens. The defense theory was that the Rucker boys used this discovery to fabricate accusations similar to the Devens accusations to extort money from appellant.
At trial, the defense argued that the Rucker boys, confronted with appellant‘s ironclad alibi, changed their story to allege that the acts occurred later, after appellant moved to Fort Rucker. The defense also argued that the accusations of the Rucker boys were too similar to the accusations of the Devens boys to be credible.
Discussion
Appellant contends that the military judge abused his discretion and deprived him of his right to call a witness and his right to expert assistance in the preparation of his defense. The Government argues that the military judge did not abuse his discretion because appellant failed to show how the expert testimony was necessary and relevant to the defense.
The standard of review of a military judge‘s decision to deny a continuance is abuse of discretion. There is an abuse of discretion “where ‘reasons or rulings of the’ military judge are ‘clearly untenable and deprive a party of a substantial right such as to amount to a denial of justice‘; it ‘does not imply an improper motive, willful purpose, or intentional wrong.‘” United States v. Miller, 47 MJ 352, 358 (1997) (citations omitted).
The factors applied to determine whether there was an abuse of discretion include:
[S]urprise, nature of any evidence involved, timeliness of the request, substitute testimony or evidence, availability of witness or evidence requested, length of continuance, prejudice to opponent, moving party received prior continuances, good faith of moving party, use of reasonable diligence by moving party, possible impact on verdict, and prior notice.
Id., quoting F. Gilligan and F. Lederer, Court-Martial Procedure § 18-32.00 at 704 (1991).
Applying the Miller factors to this case, we conclude as follows:
1. Surprise. There was no surprise in this case. When the military judge announced on October 3 that he was “inclined to admit the testimony” of the Devens boys, the military defense counsel immediately requested a continuance to prepare to counter the testimony. On November 20, at the telephonic
2. Nature of the Evidence. Dr. Mikkelsen was the heart of the intended defense strategy. Ordinarily, when the defense requests expert assistance at government ex-
3. Timeliness. Individual civilian counsel requested the continuance on November 20, 9 days before the scheduled trial date.
4. Substitute Testimony or Evidence. There was no available substitute. There was no verbatim transcript of the Fort Devens court-martial, because it resulted in an acquittal. See
5. Availability of Witness. There is no factual dispute that the witness would have been available if the continuance had been granted.
6. Length of Continuance. The requested continuance was for less than 6 weeks.
7. Prejudice to Opponent. The Government did not assert any prejudice arising from a continuance. Cf. Royster, 42 MJ at 490 (no abuse of discretion to deny continuance where testimony of other witnesses might be lost); United States v. Sharp, 38 MJ 33, 38 (CMA 1993) (no abuse of discretion to deny continuance where further delay could result in unavailability of witnesses), cert. denied, 510 U.S. 1164, 114 S.Ct. 1188, 127 L.Ed.2d 539 (1994).
8. Prior Continuances. The defense had received two continuances, the first requested by detailed defense counsel and the second by individual military counsel.
9. Good Faith of Moving Party. There has been no challenge to Mr. Coughlin‘s good faith in asking for the continuance.
10. Reasonable Diligence by Moving Party. The record shows reasonable diligence. The uncontested facts show that Mr. Coughlin entered his appearance in early October. His motions recited, without contradiction by the Government, that he contacted Dr. Mikkelsen “upon entry of appearance.” Mr. Coughlin also asserted, without contradiction, that he requested records pertaining to the Devens boys, that only partial records were supplied, and that the records were produced less than a week before the scheduled trial date.
11. Possible Impact on the Verdict. Dr. Mikkelsen was a key witness in the Fort Devens court-martial, where appellant was acquitted. Without him, the defense had no expert testimony to attack the credibility of the Devens boys or the Rucker boys.
12. Prior Notice. The military judge informed Mr. Coughlin on November 20 that the trial would proceed on November 29, with or without Dr. Mikkelsen. This was insufficient time to find another expert, give the expert time to study the records of the Devens boys, and examine the Rucker boys.
The only justification for denying the continuance was expeditious processing. Be-
Decision
The decision of the United States Army Court of Criminal Appeals is reversed. The findings of guilty and the sentence are set aside. The record of trial is returned to the Judge Advocate General of the Army. A rehearing may be ordered.
SULLIVAN, Judge (concurring):
A key witness was left out of the defense case here. In ruling on the continuance request, the judge seemed to be more concerned with delay and his perceived lateness of the request than the substance of the motion. Speed in the trial process has its place but fairness and justice are far more important factors. I am reminded of an old judicial rhyme:
The hungry judges soon the sentence sign, and wretches hang that jurymen may dine.[*]
I join in this just reversal.
CRAWFORD, Judge (dissenting):
I dissent because the majority conducts a flawed abuse-of-discretion analysis and fails to analyze this case based on harmless error.
FACTS
The first alleged offense involving the victims, herein referred to as the Rucker boys, occurred in February 1994, and the second offense in June 1995. On July 13, 1995, charges were preferred against appellant. At that time, the defense became involved in the
On September 14, 1995, the judge docketed the case to be tried beginning on October 4, 1995. Some time prior to September 25, the Government informed the defense that it intended to present the live testimony of two boys, herein referred to as the Devens boys, who had testified regarding sexual-abuse allegations at a previous court-martial at Fort Devens at which appellant was acquitted.
During the arraignment on October 3, 1995, trial defense counsel requested a further delay until November 16, 1995. The judge denied this request and on defense counsel‘s request for reconsideration, he continued the trial until October 12, 1995. The judge also deferred ruling on the defense request to exclude the Devens boys’ testimony under
Shortly before October 12, appellant hired a civilian defense counsel, Michael J. Coughlin, who had been his defense counsel at the Fort Devens trial. Based on Mr. Coughlin‘s request, the judge granted a continuance until November 29 to accommodate civilian defense counsel‘s schedule. On November 20, 1995, the judge held a telephonic
Dr. Mikkelsen provided critical testimony for the defense at the Fort Devens court-martial. The defense here indicated that
The Government agreed to procure the expert‘s testimony through alternate means, such as video-teleconference or a deposition. The defense suggests that the judge was reluctant to grant any continuance other than the first requested to accommodate civilian defense counsel‘s initial appearance.
The defense proffered that Dr. Mikkelsen‘s testimony and assistance was necessary for several reasons:
to aid the military judge and the members in assessing the credibility of the [Devens] boys whom the government intended to call to testify to prior bad acts allegedly committed by appellant but for which appellant was acquitted, in large part due to the testimony of Dr. Mikkelsen;
to provide the basis for cross-examination of the [Devens] boys on the concept of “transferred abuse,” the questioning of which was challenged by the Government in the absence of expert testimony, such as Dr. Mikkelsen‘s, to explain the theory to the members;
to provide expert assistance to evaluate whether the [Rucker] boys’ allegations were a product of psychological manipulation, to prepare cross-examination questions to impeach the [Rucker boys,] and to provide expert testimony on the nature and causes of false sexual abuse reporting; and
to provide expert assistance and testimony to rebut the child sexual abuse expert listed by the Government as a sentencing witness.
Final Brief at 6-7 (footnote omitted).
The judge denied this request.
The court below held, first, that Dr. Mikkelsen‘s unavailability could have been prevented by the defense. Second, it rejected the defense‘s transference theory since, contrary to the Devens brothers’ situation, there was no evidence that the stepfather of the Rucker boys had physically abused them. Third, the court found that the doctor‘s opinion as to the credibility of the Rucker boys would not be admissible as it made him the functional equivalent of a “human lie detector.” 48 MJ at 575.
DISCUSSION
Given the proffer by the defense, the judge did not abuse his discretion. Certainly, the defense expert could not testify as to the credibility of the Rucker boys. See, e.g., United States v. Birdsall, 47 MJ 404, 406 (1998). Furthermore, the judge could not compel these boys to undergo psychiatric or physical examination by a defense expert. United States v. Owen, 24 MJ 390, 395 (CMA 1987). There is no hint in this case that they would cooperate voluntarily or were even asked to undergo such examinations.
As to the second proffer regarding the transference theory, that would not be relevant because there is no evidence that the stepfather of the brothers had physically abused them. In any event, that would not be reliable evidence. Francis A. Gilligan, Edward J. Imwinkelried & Elizabeth F. Loftus, The Theory of “Unconscious Transference“: The Latest Threat to the Shield Laws Protecting the Privacy of Victims of Sex Offenses, 38 B.C. L.Rev. 107 (1996).
As to the third proffer the information is not sufficient even to indicate how the expert would be employed.
As to the last proffer, this would be covered by the Government‘s offers of an alternative expert in the local area to assist the defense or to provide alternative means for Dr. Mikkelsen to participate.
Clearly, the judge did not abuse his discretion in denying the continuance under these circumstances.
The majority does not apply a harmless-error test as required by
Because of the majority‘s failure to analyze properly the facts in the case and apply the harmless-error test, I dissent.