[00:00:25] Speaker 02: Mr. Wells, you're reserving five? [00:00:27] Speaker 02: Yes, your honor. [00:00:29] Speaker 01: Good morning, your honors. [00:00:29] Speaker 01: May it please the court? [00:00:31] Speaker 01: You know, we talk about trial by ordeal, and sometimes the picture of putting an anchor on somebody's ankle and throwing them into the river is a trial by ordeal. [00:00:37] Speaker 01: If they float, they're guilty. [00:00:39] Speaker 01: If they sink, they're innocent. [00:00:41] Speaker 02: On page eight of the blue brief, you say, you know, I'll read it to you, unique to the military system, unlawful command influence, [00:00:52] Speaker 02: allows for an unconstitutional taint to permeate the proceedings. [00:00:57] Speaker 02: That's correct. [00:00:58] Speaker 02: Unlawful command influence is a crime under the UCMJ, isn't it? [00:01:02] Speaker 01: Well, actually Article 37 is not really punitive, and it did not provide for a punishment. [00:01:09] Speaker 01: But there are regulations against it. [00:01:11] Speaker 01: So by disobeying that regulation, it certainly could be a crime. [00:01:16] Speaker 02: But Your Honors, I'd remind you that the military- Then how does it allow for an unconstitutional taint? [00:01:20] Speaker 01: Well, certainly unconstitutional taint if it's performed. [00:01:23] Speaker 01: And I would remind your honor that the military courts have felt that it's not just actual command and influence, but actually the appearance of command and influence. [00:01:32] Speaker 01: The military justice system, they need to make sure the optics are correct. [00:01:37] Speaker 01: And we're not looking here necessarily at throwing somebody in jail for command and influence because it could be inadvertent, often is. [00:01:43] Speaker 01: It could be subtle, often is. [00:01:45] Speaker 01: But in this particular case, it [00:01:48] Speaker 01: creates an unfairness within the system. [00:01:51] Speaker 01: Even that appearance creates the unfairness. [00:01:53] Speaker 02: You say, at the same section, the military judge, perhaps in response to the subtle command influence, flaunted congressional and presidential directives by allowing the information to be placed into evidence. [00:02:08] Speaker 01: Are we talking, I believe, on the fact that my client, or he was not on my client's time, but that the appellant [00:02:18] Speaker 01: invoked his right to counsel. [00:02:20] Speaker 01: And that certainly was a, uh, did you file a criminal complaint? [00:02:25] Speaker 01: No, I would not do that because your honor, number one, I was not representing the gentleman at the time. [00:02:31] Speaker 01: Number two, I don't think there was any criminal intent there. [00:02:35] Speaker 01: I think there's a subtle intent. [00:02:36] Speaker 02: And as we talk about, well, did you think it was subtle to rush up? [00:02:40] Speaker 02: You, you alleged that, that Lieutenant Colonel Collins rushed up to confer with prosecution counsel. [00:02:46] Speaker 02: You were there, weren't you? [00:02:47] Speaker 01: I actually observed that. [00:02:48] Speaker 01: Yes, sir. [00:02:48] Speaker 01: I was there for part of that court martial anxiety. [00:02:51] Speaker 01: Uh, where's that rushing up in the record? [00:02:53] Speaker 01: I'm sorry. [00:02:54] Speaker 01: Where is that rushing up in the record? [00:02:56] Speaker 01: It deals within the, um, actually in the clemency portion that was filed and the clemency doctor. [00:03:02] Speaker 02: Yeah. [00:03:03] Speaker 02: Where, where surely you must've made an objection when you saw counsel rushing up to confer with the prosecution. [00:03:10] Speaker 01: Your honor, again, I wasn't the trial defense counsel and probably, and certainly [00:03:14] Speaker 02: I thought you said in your brief, you represented another person. [00:03:18] Speaker 02: I did. [00:03:19] Speaker 01: I did, but that is completely separate court marshals. [00:03:22] Speaker 01: Oh, I see. [00:03:23] Speaker 01: Different times. [00:03:24] Speaker 01: So if I had been there, yes, I would have made that objection. [00:03:27] Speaker 01: The major that was defending the case did not. [00:03:30] Speaker 01: Okay. [00:03:31] Speaker 01: He did raise it in the clemency and, you know, in the military system, the court is not final until such time as has been acted on by clemency. [00:03:39] Speaker 01: So it's still within the record and still in a position where it can be raised. [00:03:44] Speaker 02: You say that, again, that on page 17 of the gray brief, that Lieutenant Colonel Collins was giving advice to the prosecutors in full view of the members. [00:03:58] Speaker 02: She was. [00:03:59] Speaker 02: What evidence in the record supports that? [00:04:01] Speaker 02: Again, I would refer you to the clemency package. [00:04:04] Speaker 01: I understand. [00:04:04] Speaker 01: I mean in the trial record. [00:04:05] Speaker 01: There's not. [00:04:07] Speaker 01: But as I just said, if the clemency package is considered [00:04:12] Speaker 01: part of the trial because the conviction is not final until acted on by the convening authority in the military justice system. [00:04:19] Speaker 04: Am I remembering right that even the full record in front of us, including the clemency record, does not include anything about the content of any of those communications? [00:04:29] Speaker 01: Again, there's no way we could know the content. [00:04:31] Speaker 01: Your Honor, I would also mention, by the way, this is a summarized record, it's not a verbatim, but it was a matter of her going up and whispering in the [00:04:40] Speaker 01: ears or handing a piece of paper to the trial counsel. [00:04:44] Speaker 01: Again, if I had been on that particular case, I would have raised that objection. [00:04:47] Speaker 01: It's the same way with coaching the witness. [00:04:51] Speaker 01: I have a standard motion I put in in court marshals to prevent that, but I wasn't the counsel on that. [00:04:55] Speaker 01: It was not put in. [00:04:57] Speaker 01: And we have the situation where a witness's testimony on some pretty critical information was not adding up in the words of the trial counsel. [00:05:06] Speaker 01: They take her into the back, ex parte, and [00:05:09] Speaker 01: Basically, coach her up. [00:05:12] Speaker 04: But that was examined on the record, right? [00:05:14] Speaker 01: That was examined on the record. [00:05:16] Speaker 01: That's correct. [00:05:16] Speaker 04: And she said, they said, are you sure you're right about the document you've identified? [00:05:20] Speaker 04: And she looked at it and looked at it some more and said, oh, wrong one. [00:05:25] Speaker 04: And then she said, here, the right one. [00:05:26] Speaker 01: Here's the right one. [00:05:27] Speaker 01: Yes. [00:05:27] Speaker 01: Judge Toronto, you're right. [00:05:28] Speaker 01: But you've got to remember, we're looking at officer lawyers talking to, at that time, I think she was an airman basic. [00:05:36] Speaker 01: So I believe she'd been reduced down. [00:05:38] Speaker 01: under an immunity agreement where if she felt that the government felt she was not telling the truth, she could have gone to jail. [00:05:46] Speaker 01: Okay. [00:05:46] Speaker 01: And actually she did not go to jail as it turned out, but she had every incentive to do exactly what the government said. [00:05:56] Speaker 01: Look, any kind of preparation beforehand, that's fine. [00:06:00] Speaker 01: That's fair. [00:06:01] Speaker 01: Not a problem, but to take somebody off the stand in the middle of their testimony and go in and say, oh, your story is not adding up. [00:06:08] Speaker 01: We feel that as a basic deprivation of fundamental fairness, in this case, prosecutorial misconduct, and which rises to command and influence. [00:06:17] Speaker 01: I know I didn't put a criminal complaint in, because the guy that was defense counsel should put a motion in to prevent that. [00:06:26] Speaker 01: But how am I going to be able to prove that... Well, you're trying to do it here. [00:06:33] Speaker 01: Well, I am, sir, but don't forget, we only have to show the appearance that we do in the military system. [00:06:37] Speaker 01: How can I prove that he was forcing her to lie? [00:06:40] Speaker 02: But you only have to show in the military justice system, you only have to show an appearance of impropriety on the part of the members of the board or others. [00:06:52] Speaker 01: And that's what we're doing here, sir. [00:06:53] Speaker 01: We're trying to. [00:06:55] Speaker 01: I hope we're doing that. [00:06:56] Speaker 01: Your honor, the military system is so different and I recognize that. [00:07:02] Speaker 01: I was not a Jag, but I was convening authority in the military. [00:07:05] Speaker 01: I've done court martial work since then. [00:07:07] Speaker 01: But it's where you have, especially the staff judge advocate, and this is where the court below made, I think, a very serious error. [00:07:14] Speaker 01: Said, well, you know, Lieutenant Colonel going up there, that's not command influence because it wasn't the commander. [00:07:20] Speaker 01: But military law holds that that staff judge advocate acts under the mantle of command. [00:07:25] Speaker 01: In effect, she's wearing the general stars when she goes up there. [00:07:29] Speaker 01: And you know, if you take enlisted people or even junior officers, I mean, the major's uniform there can be intimidating. [00:07:35] Speaker 01: It may not intimidate us. [00:07:37] Speaker 01: Uh, but it would be intimidating to an enlisted person. [00:07:39] Speaker 01: Lieutenant Colonel Collins was actually one rank higher and wearing the star, effectively wearing the stars of the, uh, of the general. [00:07:47] Speaker 01: The reason why military courts have put so much emphasis on command influence is because even the appearance, and I think you all agree, perhaps you all agree that the optics here are not the best for the military. [00:07:59] Speaker 01: Even the appearance, uh, smacks as the, uh, uh, mortal enemy of military justice. [00:08:05] Speaker 01: especially where you've got a charge, which is really vague. [00:08:09] Speaker 01: Again, I was not on that. [00:08:11] Speaker 01: Really? [00:08:13] Speaker 01: Yes, sir. [00:08:13] Speaker 01: What's controlled suspected test material? [00:08:16] Speaker 04: That's not even in this charge. [00:08:18] Speaker 04: I think I'm right about this. [00:08:21] Speaker 04: Vagueness in constitutional vagueness outside the area of the First Amendment, which this isn't, is always vagueness as applied. [00:08:30] Speaker 04: And what was at issue here, though under the [00:08:35] Speaker 04: auspices of what's suspected test material was actual test material, right? [00:08:40] Speaker 01: Well, not necessarily. [00:08:41] Speaker 01: I'm not sure we even knew what material he was alleged to have given. [00:08:47] Speaker 02: It sure looks like from the record, like what was being done was the study material was being taken and the parts that were on the test were being highlighted so that the reader would know this is where the question is. [00:09:02] Speaker 01: That can be done, but there was no [00:09:05] Speaker 01: And remember, Your Honor, that one of those supposed transactions was later proved to be completely false and was set aside by the Judge Advocate General. [00:09:14] Speaker 01: Because the guy who indicated that he received the material from Mr. Pittman, Sergeant Pittman, wound up creating it himself. [00:09:22] Speaker 01: What we had here was Airman Basic Trexler saying she gave that material to Sergeant Pittman. [00:09:29] Speaker 01: We don't know what the material was. [00:09:30] Speaker 01: His fingerprints weren't on it. [00:09:32] Speaker 01: Hers were. [00:09:32] Speaker 01: And actually an OSI agent got a little clumsy, his was, and later found out, although not in this record, but in my trial, we discovered that her husband's fingerprints on it, not Sergeant Pittman's. [00:09:43] Speaker 01: And that the problem comes out, what was it? [00:09:46] Speaker 01: If I write down some questions on a piece of paper myself, and I think this might be what we're looking at, is that suspected test material? [00:09:56] Speaker 01: Because what we're looking at is anything basically that Air Force OSI... It's not alleged, is it? [00:10:02] Speaker 02: I'm sorry. [00:10:03] Speaker 02: That's not alleged. [00:10:05] Speaker 02: That's your own personal study materials that you write up. [00:10:08] Speaker 01: Your honor. [00:10:11] Speaker 01: I think it is. [00:10:12] Speaker 01: And I think it's covered under the suspected trust material because basically what it says, anything that the police or the prosecutors say it is or a testimony. [00:10:21] Speaker 01: I'm still trying to figure out what a testimony is. [00:10:22] Speaker 01: I don't know. [00:10:23] Speaker 01: Uh, you know, I can't find anybody can tell me that, but it is so vague. [00:10:28] Speaker 01: that if I bought one of the commercial test materials, I'm not Air Force, but if I did and I was, and bought one of those commercial test books, which are free to be purchased, and gave it to somebody as a birthday present, that could come under this statute and come under this instruction. [00:10:46] Speaker 01: That's why the entire instruction, not the entire instruction, the entire instruction as it looks to this actual controlled and suspected test material, [00:10:56] Speaker 01: has to be set aside as void for vagueness. [00:10:59] Speaker 01: It was improperly charged. [00:11:01] Speaker 01: There is no such thing as controlled suspected test material. [00:11:04] Speaker 01: It was improperly adjudicated. [00:11:07] Speaker 01: And Your Honor, it certainly would have an opportunity if this is set aside and remanded. [00:11:12] Speaker 01: The Air Force could probably try to do it right. [00:11:15] Speaker 01: And they would still have jurisdiction over him, even though he's retired. [00:11:18] Speaker 01: And Your Honor, I'm into my rebuttal time. [00:11:21] Speaker 01: Thank you. [00:11:21] Speaker 01: Thank you. [00:11:32] Speaker 03: The court should affirm the judgment below. [00:11:45] Speaker 03: Mr. Pittman received full and fair consideration during his special court, excuse me, court martial, and judge advocate general appellate review. [00:11:53] Speaker 03: The military justice system did not deprive Mr. Pittman of fundamental fairness, such that it impaired his constitutional due process rights, nor did it result in a spectacle [00:12:02] Speaker 03: or trial or deal. [00:12:03] Speaker 03: If the court applies, the standard is applied for the last 70 years since Burns and Augenblick and Matias and Bowling and Flute, then this is an easy summary affirmance. [00:12:14] Speaker 03: That is the standard review. [00:12:16] Speaker 03: Mr. Pittman has objected to that and said that this should be de novo review from a collateral proceeding or clear error. [00:12:26] Speaker 03: Either those standards apply. [00:12:27] Speaker 03: The standards that apply are those that were laid down long ago. [00:12:32] Speaker 03: I'll make one or two points. [00:12:38] Speaker 03: Sure. [00:12:38] Speaker 04: I guess I have a couple of specific questions, which I realize are not going to go to your primary argument, which is that even if there were some merit as an original matter in a de novo review forum to what we've heard and see in the briefs, we're under an extremely limited standard of review. [00:12:55] Speaker 04: So I want to put that aside. [00:12:56] Speaker 04: So the materials that were [00:13:00] Speaker 04: alleged to have been improperly shared. [00:13:03] Speaker 04: I know they were charged as suspected test materials. [00:13:07] Speaker 04: Were they actual test materials? [00:13:10] Speaker 03: They could also be characterized as actual test materials. [00:13:13] Speaker 03: If you look, for example, at Appendix 1247, testimony of, at that time, she was still identified as Staff Sergeant Traxler, even though she was demoted thereafter due to her testimony. [00:13:25] Speaker 03: She stated that she went to the test. [00:13:28] Speaker 03: She actually [00:13:29] Speaker 03: highlighted the test, you know, she went back to her materials and highlighted those materials in her test materials, and so they are the actual test questions. [00:13:37] Speaker 04: So she gave those to Mr. Pittman? [00:13:40] Speaker 03: She gave those to Mr. Pittman. [00:13:41] Speaker 04: And did he then share them with somebody else? [00:13:43] Speaker 03: Because his receiving, I don't think... It would in fact be a violation of the regulation. [00:13:49] Speaker 03: Really? [00:13:49] Speaker 03: I thought that... To either receive or to give. [00:13:52] Speaker 03: It's both. [00:13:53] Speaker 03: Because it's... Was he charged with both? [00:13:56] Speaker 03: He was charged with both because the suspected test material was, it was, if you look at paragraph 5.9 of Air Force Instruction 36.2605, and you can find that at appendix page 183. [00:14:10] Speaker 04: Which way did 183 go? [00:14:12] Speaker 03: Oh, sorry, the one that we filed this week. [00:14:13] Speaker 03: I'm sorry, Your Honor, for the confusion about the appendix. [00:14:16] Speaker 04: No, no, that's fine. [00:14:16] Speaker 04: It was just a subtraction of three, as far as I can tell. [00:14:18] Speaker 03: Yes, I think that's right, Your Honor. [00:14:20] Speaker 03: And I think it may be page 180 of the original. [00:14:23] Speaker 03: If you go there and look at paragraph 5.9, [00:14:26] Speaker 03: It lists all the types of areas in which you can be what you are and aren't supposed to do. [00:14:36] Speaker 03: And it all adds up to you're not allowed to cheat. [00:14:38] Speaker 03: I mean, effectively, you're not allowed to give somebody. [00:14:41] Speaker 03: I mean, I know I went to UVA undergrad, and they had a very strict honor code policy. [00:14:46] Speaker 03: Effectively, it's an instruction, a regulation that regulates an honor code policy. [00:14:51] Speaker 03: You don't share test materials. [00:14:53] Speaker 03: You don't give out test materials. [00:14:55] Speaker 03: In the record, you can see that the proctors warned over and over again. [00:14:58] Speaker 03: There were several witnesses who testified that they were warned. [00:15:02] Speaker 03: Don't share this material. [00:15:03] Speaker 03: You're not allowed to share this material. [00:15:05] Speaker 03: You're not allowed to receive this material because we want to get an honest assessment of what you as a candidate for promotion can do. [00:15:12] Speaker 03: That's the whole purpose of this testing. [00:15:14] Speaker 03: There was a military need for it. [00:15:16] Speaker 03: What's a test pony? [00:15:18] Speaker 03: I don't know, Your Honor, but I will say based on Parker v. Levy, Supreme Court decision, [00:15:23] Speaker 03: says we don't have to get into the hypotheticals as to what wasn't charged. [00:15:26] Speaker 03: That wasn't one of the issues that was charged. [00:15:28] Speaker 03: We have evidence here in appendix page 1246 to 48, 1247 to 49 that we have highlighted test materials. [00:15:35] Speaker 03: We also have additional test materials that Tech Sergeant Smith was given by Mr. Pittman as well. [00:15:42] Speaker 03: And that's appendix pages 150 and 151. [00:15:45] Speaker 03: So based on Parker v. Levy, you don't have to go into the hypothetical what some of the terms mean, because this is a term that [00:15:52] Speaker 03: Testable material? [00:15:53] Speaker 02: Look, as far as I'm concerned, the core of your argument is when somebody says to an Air Force Staff Sergeant mechanic, did you check the engine on the fighter before it took off, the answer has to be true. [00:16:13] Speaker 02: That's the core of everything in the military. [00:16:15] Speaker 03: Yes, Your Honor. [00:16:17] Speaker 03: So I mean, I think at the end of the day, they charged him with conduct. [00:16:22] Speaker 03: He did. [00:16:22] Speaker 03: He cheated. [00:16:23] Speaker 03: He shared, highlighted test material. [00:16:26] Speaker 03: He received highlighted test material to help him in his promotion that he actually received. [00:16:31] Speaker 03: He became a master sergeant in part because of the information he received from Sergeant Trexler. [00:16:35] Speaker 03: So based on that material alone, I mean, that demonstrates that this regulation is not void for vagueness. [00:16:43] Speaker 04: Can you switch over to the one or two points being made about what the staff judge advocate [00:16:51] Speaker 04: did in the courtroom. [00:16:53] Speaker 04: Sure. [00:16:54] Speaker 04: I gather, first of all, that there are two separate arguments. [00:16:57] Speaker 04: One is that it prejudiced the court members from seeing it, and the second was that she then should not have advised the convening officer. [00:17:12] Speaker 03: I think that's... Talk about the role of an SJA. [00:17:15] Speaker 03: Yes, Your Honor. [00:17:17] Speaker 03: The staff judge or advocate [00:17:20] Speaker 03: serves a vital role with the convening authority. [00:17:23] Speaker 03: They serve several different roles. [00:17:25] Speaker 03: One, in this circumstance, they assist the convening authority in preparing the materials and deciding whether to take action on the court marshal. [00:17:33] Speaker 03: Here she did that. [00:17:34] Speaker 03: Oftentimes, it's almost a pro forma thing. [00:17:38] Speaker 03: It's just here's the clemency petition. [00:17:40] Speaker 03: We disagree. [00:17:41] Speaker 03: We think it's error. [00:17:42] Speaker 03: Here, convening authority, now you can assess sometimes the convening authority. [00:17:44] Speaker 04: Is the staff judge advocate's role, does that begin [00:17:47] Speaker 04: before the convening of the court martial? [00:17:51] Speaker 03: It does. [00:17:52] Speaker 04: And does that person always sit through the court martial? [00:17:55] Speaker 03: They don't necessarily do so. [00:17:56] Speaker 03: Sometimes they do, sometimes they don't. [00:17:58] Speaker 03: I don't know if it's common or not. [00:18:00] Speaker 03: But I think it happens sometimes. [00:18:06] Speaker 03: I'm sure they sit in to see because they're overseeing the Jags, the Judge Advocate Generals as well. [00:18:12] Speaker 03: They don't sit on either side. [00:18:13] Speaker 03: But their job is the supervisor. [00:18:15] Speaker 03: They're not only the staff judge advocate, but they're also... They don't sit on either side inside the bar. [00:18:20] Speaker 03: Inside the bar. [00:18:21] Speaker 04: But I gather she did sit on one side. [00:18:23] Speaker 03: She may have sat, yes, on one of the courtroom. [00:18:25] Speaker 03: I mean, I don't think it was quite like a wedding, Your Honor, where you sit with the bride in the room. [00:18:30] Speaker 03: And I think some of the statements that have been made by counsel, I mean, essentially he's testifying about what happened. [00:18:35] Speaker 03: There's no allegations in the record, as Judge Wallach noted. [00:18:38] Speaker 03: There's no allegations in the record that any of these things happened. [00:18:41] Speaker 03: If you look at appendix pages 77 and 78, it says no one's alleging actual wrongdoing here. [00:18:48] Speaker 03: At the most, they said that there were notes passed. [00:18:50] Speaker 03: And that's, again, on pages 77 and 78 of the record. [00:18:54] Speaker 03: That is a total. [00:18:58] Speaker 03: Mr. Pittman makes some allegations about coaching and adversarial advice or rushing up to confer. [00:19:02] Speaker 03: None of that is in the record. [00:19:05] Speaker 03: That's all counsel's. [00:19:08] Speaker 04: But you said note passing is. [00:19:11] Speaker 04: is in the record what it is what would be a hi and this may be the answer may be something is trivial is as you know do you want lunch or something yet and but and it is is there a any legitimate basis for the staff judge advocate to be communicating on any subject with absolutely are these the staff judge advocate oversees the the judge advocate both sides right both sides corrects and she could have [00:19:37] Speaker 03: She could be passing... She's also advising the court. [00:19:40] Speaker 03: And she's also advising the court. [00:19:41] Speaker 00: Are you saying it's common for these notes to be passed? [00:19:44] Speaker 00: And what kind of communication, generally, what kind of communication? [00:19:49] Speaker 03: Your Honor, I don't know how common it is for this to happen. [00:19:52] Speaker 03: I know that there are times when it has been asserted that the staff judge advocate has stepped down and has done certain things far worse than this as prosecutorial misconduct. [00:20:04] Speaker 03: And we cite some of those cases in our brief, Dowdy for one, where we're an independent review by the convening authority. [00:20:13] Speaker 03: Even if it's been provided by the staff judge advocate, it's not enough to show prejudice. [00:20:19] Speaker 03: So you have circumstances that are much worse, where they do, in fact, they may talk to witnesses. [00:20:26] Speaker 03: They do things like that. [00:20:27] Speaker 03: Here there is no, by the way, there's nothing in the record that the staff judge advocate was involved in that coaching of the witness. [00:20:34] Speaker 04: Um, when, when you say there are cases where judge staff judge item could do that, you're not suggesting that that's good behavior. [00:20:41] Speaker 03: It's not necessarily good behavior, your honor, but, but this is this to me, I think it first of all, is acting as a facilitator in effect. [00:20:49] Speaker 03: Is that correct? [00:20:50] Speaker 03: A facilitator for what do you mean? [00:20:52] Speaker 03: Your understanding is of the court. [00:20:54] Speaker 03: Correct. [00:20:54] Speaker 03: Your honor. [00:20:55] Speaker 03: And here we don't know what was in those, those notes, obviously, but my, my speculation [00:21:02] Speaker 03: Perhaps because I represent the United States, my speculation is she was doing her job as their supervisor to say, you know, you're not deporting, you know, your deportment in the court is not right. [00:21:11] Speaker 03: For all I know, you know, she could have had a sick relative though. [00:21:14] Speaker 03: We don't know. [00:21:14] Speaker 03: And, and, and defense counsel didn't ask what was in those notes. [00:21:18] Speaker 03: Um, so we, we don't actually know. [00:21:20] Speaker 04: She had said, ask this question of the witness. [00:21:23] Speaker 04: Is that, and the court members saw that and then some question was asked and it turned out to be a really good question. [00:21:32] Speaker 04: Is that a problem? [00:21:34] Speaker 03: It potentially could be, Your Honor, but again, you would have to establish prejudice under Article 6 of the Code, which is prosecutorial misconduct, because at that point, and again, we cite the Dowdy case, and I may have cited some other cases as well, that essentially show that even if there is something bad there, even if there is an actual or [00:21:57] Speaker 03: or an appearance of impropriety there, it can be remedied by the convening authority looking at the record independently, which is what the convening authority did. [00:22:04] Speaker 02: Was there a military jury in this case? [00:22:05] Speaker 03: There was, Your Honor. [00:22:09] Speaker 03: And we would make the argument at some level here that some of these arguments, beyond the prosecutorial misconduct, allegations with regard to unlawful command influence were waived. [00:22:19] Speaker 03: The court below found that it wasn't and went onward, in fact, [00:22:25] Speaker 03: a much larger review than we would have expected under the standard review in this court. [00:22:29] Speaker 03: And in fact, almost looked at this de novo and still found that there was no unlawful commandment. [00:22:34] Speaker 02: In the absence of a military jury, are the members of the court permitted to directly question the witnesses? [00:22:40] Speaker 03: The members of the court? [00:22:43] Speaker 02: They are. [00:22:45] Speaker 02: Yes, Your Honor. [00:22:46] Speaker 02: But they don't do it in the presence of a jury, isn't that right? [00:22:52] Speaker 03: Hold on, Your Honor, if I may. [00:23:00] Speaker 03: So, Your Honor, are you talking about the members veneer, the jury itself, or are you talking about the lawyers? [00:23:08] Speaker 02: The members of the court themselves, the people who were actually presiding, military judge. [00:23:16] Speaker 03: Military judge, the judge. [00:23:19] Speaker 03: Yes, the judge can, in fact, ask questions, Your Honor. [00:23:21] Speaker 03: In front of the jury? [00:23:22] Speaker 03: In front of the jury, Your Honor, yes. [00:23:26] Speaker 03: For all the reasons we state in our brief, we believe, again, if the court adheres to the standard of Ogdenblick Burns, Bowling, Matthias, Flute, all of those prior cases generate that there was full and fair consideration of all these issues in the military justice system. [00:23:44] Speaker 03: And therefore, the judgment below should be affirmed. [00:23:47] Speaker 03: If the court has nothing further, we'll rest on our briefs and respectfully request that you affirm the judgment below. [00:23:55] Speaker 03: Thank you. [00:23:59] Speaker 01: Your honor, if I may, not only can the judge ask questions, but the members of the court themselves can ask questions. [00:24:04] Speaker 01: And Judge Stold answer one of your questions. [00:24:07] Speaker 01: I've done a number of court marshals probably somewhere around 25 or 30 since I retired. [00:24:12] Speaker 01: I've seen staff judge adjudgment, advocates come in and go out. [00:24:17] Speaker 01: There's only been two times I've ever seen them passing notes. [00:24:22] Speaker 01: One was National Guard court marshal, I was the defense counsel and I shut that down by objecting the military judge. [00:24:27] Speaker 01: And the other one was this case. [00:24:29] Speaker 02: Mr. Wellsworth, were the notes passed only to the prosecution or were they passed to the defense as well? [00:24:35] Speaker 01: Yes, sir. [00:24:35] Speaker 01: Only at the prosecution. [00:24:36] Speaker 01: The way that courtroom laid out is kind of funny. [00:24:38] Speaker 01: It's almost like an L. So you have the prosecution here. [00:24:44] Speaker 01: You can't testify. [00:24:46] Speaker 01: It's like an L. And the defense are not close to that. [00:24:50] Speaker 01: I'm sorry. [00:24:51] Speaker 01: Just trying to answer the questions, Your Honor. [00:24:54] Speaker 01: But the other thing, and I think [00:24:56] Speaker 01: This becomes really important as counsel indicated, the clemency is not part of the record. [00:25:03] Speaker 01: The clemency is part of the record. [00:25:04] Speaker 01: And until that convening authority acts, it's still really an open trial. [00:25:09] Speaker 01: We've had cases, theoretically possible, and I've seen cases set aside by the convening authority and holder in part. [00:25:16] Speaker 01: It can happen. [00:25:16] Speaker 01: So when it was raised in the clemency hearing by that defense counsel, it was raised on the record. [00:25:27] Speaker 04: And when it was raised in the clemency, was the answer something about, I guess I can imagine, no? [00:25:36] Speaker 04: No notes were passed or? [00:25:38] Speaker 04: There was no answer, sir. [00:25:40] Speaker 04: I mean, no document is filed to answer? [00:25:45] Speaker 01: No, sir. [00:25:45] Speaker 01: That's all they do is there's a one-page document that says everything is proper. [00:25:50] Speaker 01: We recommend that. [00:25:53] Speaker 01: uh, this take place. [00:25:54] Speaker 01: There's, there's no real analysis to it. [00:25:56] Speaker 01: It was the same thing with the article 69. [00:25:58] Speaker 01: They did a little bit of an analysis to set aside. [00:26:00] Speaker 04: And in the nature of this clemency request, is it the kind of thing where, um, the defense counsel would say, we don't know the content of the notes, remand it. [00:26:10] Speaker 04: I don't know if the remand is even a, uh, a correct term for what the recipient to the clemency request would. [00:26:18] Speaker 01: They could afford it what they call a Dubay hearing, which is effectively a special hearing to study that one issue. [00:26:23] Speaker 01: That was not done, I believe, in the 69 review that we asked for that. [00:26:28] Speaker 01: Was it requested? [00:26:29] Speaker 01: I believe we did in the article 69 review. [00:26:32] Speaker 01: I'm not 100% sure, but I thought we did. [00:26:36] Speaker 01: But that was not done. [00:26:37] Speaker 01: And unfortunately, because this didn't go to the Court of Criminal Appeal or the Court of Appeals for the Armed Forces, you're somewhat limited in your remedies. [00:26:47] Speaker 01: We can't do like we come here and [00:26:52] Speaker 01: you know, present to you all and present briefs and responses and so on and so forth. [00:26:55] Speaker 01: It's we put it in, goes into a star chamber, basically somebody looks at it and makes a decision. [00:27:02] Speaker 01: So it is a different kind of system. [00:27:05] Speaker 01: And Your Honors, I think the other issue we didn't really address very much, if I can do that in my last few seconds, is the fact that the publication that Mr. Pitman or Sergeant Pitman was going to invoke [00:27:19] Speaker 01: counsel we find is a very serious due process violation. [00:27:23] Speaker 01: Not because it was a custodial interrogation. [00:27:26] Speaker 01: I think Judge Braden went off on the wrong track on that because it's irrelevant. [00:27:30] Speaker 01: It's not the issue of whether warnings should be given. [00:27:33] Speaker 01: It's the issue of the military court, a manual for court marshals says you do not disclose the fact that there was any invocation of counsel. [00:27:43] Speaker 01: To us attorneys, that doesn't seem very serious, but to the average people sitting up there especially, [00:27:49] Speaker 01: military folks and I was one, so I'm not being critical, but, uh, sitting there and saying, Hmm, lawyer must be guilty. [00:27:55] Speaker 01: And that's why the MCM is very specific, uh, that you should not do that. [00:28:00] Speaker 01: And that alone is a basis to remand, uh, to set this aside, remand back to the air force where they can do a rehearing or retrial. [00:28:08] Speaker 01: Uh, they call it a rehearing if necessary, your honors. [00:28:11] Speaker 01: Thank you so much for the opportunity to come before you today. [00:28:14] Speaker 01: Um, only nine seconds over my time. [00:28:16] Speaker 01: I think that's a record. [00:28:18] Speaker 02: Thanks, Mr. Wells. [00:28:19] Speaker 02: Nice to see you again. [00:28:20] Speaker 01: Nice to see you, too.