Episode Transcript
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Welcome to the military justice today podcast, when you're host Robert Capa Villa and
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Mickey Williams, covering the full range
of military law topics from all branches of
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the Armed Forces. Today's episode is
made possible in part by the law firm
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of Capa Villa and Williams, and
now let's welcome the host of the show,
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Rob and Mickey. Alright, good
afternoon everybody. This is Mickey Williams
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from Capavilla and Williams that I'm here
with my law partner, the legendary Robert
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Capavilla Quincy. Hi Rob. Hello
everybody. Let me talk a little bit
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about the godfather of military justice.
His name is William e Casara. He's
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from the William E CASARA PC law
firm out of Augusta, Georgia. And
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a little bit about Bill Um.
Even though his the website says William,
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everybody else knows him as bill.
He has been practicing military justice for over
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thirty years. UH, six of
those years were on active duty in the
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Jack Corps and then twenty, I
think the remainder were in private practice as
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well as being in the reserves.
And he is uh, he's been practicing
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law a long long time. He's
able to practice law and all the military
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courts, including the Supreme Court of
the United States. So he's out there
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and he's been doing it for a
long time. He's he's his website is
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www dot court martial dot com.
Talk about a Nice Uh. Bill's got
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himself a Nice D R L there
and he's here today discuss a couple of
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things. I think the first thing
is we're going to talk about is Um
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appeals, because that's something that bill
specializes in. All Right, rob you
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had some questions for bill about the
whole appeals process and this is a very
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interesting topic for me, and this
is actually if you're an attorney and you
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lose a case and you know and
appeals coming something like Bill Cassara might be
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a little scary for for you Um, and not because I think that there's
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any animus there or any thing like
that. I just think that attorneys aren't
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perfect. Right. Attorneys make mistakes
and sometimes a sharp guy like bill is
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going to find it and then that
could be the difference, I think,
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a lot of times for for a
client who finds themselves a position where they're
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on the losing end of a trial
which nobody wants to be. It happens,
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though. But yeah, Bill,
look, let's chat a little bit
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about appeals. First, my friend, UM, how did you get into
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military a pellet work? It's a
kind of a niche within a niche there.
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Yeah, it's actually a two steps. Two things happened. One is
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when I first got off active duty
I was in a small practice in Baltimore
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and just got a call from somebody
in Baltimore who found out for my friend
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of a friend that I did military
long and they asked me if I would
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do an appeal and sure, and
I'll get back to that case in a
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second. But then the other part
of it is after I got off active
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duty and went into the reserve,
I spent quite a lot of time at
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the army's of Pelot Defense Division,
Um all defensive Pelot Division, or dad
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as they all UM. Back in
those days you could reserve assignment for quite
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a long time and I did.
Now I think they make you move every
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couple of years, but I stayed
at the defensive pellate division a long time
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and from there just sort of and
when, I guess I got older and
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didn't want to do trial work anymore, just got more and more into the
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appeals aspect of Fourth Marshal. That's
interesting to me, Bill, that you
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were able to stay in a dad's
spot as a reservist. That's a that's
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an awesome reserve gig. Mickey and
I had represent folks of drug hot boards
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constantly. Yeah, I've never I
didn't even know that was a job.
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Yeah, well, you know,
fortunately for me there was a two star
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general. It was a good friend
of mine and he uh kept me kepting
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away from vultures that have the P
P and p o on the reserve side.
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Very Nice, very nice. Um. So I got to admit up
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front bill, I'm not even though
I'm practice military law for a long time.
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Mickey and I have never served any
kind of a pellet roll through the
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military. So some of these questions
are going to be very basic, um.
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But bottom line, let's kind of
start with the beginning, UM,
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article sixty appeals. Kind of take
us through what that is and how it
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all works. Sure. So,
as you guys know, the Post Trial
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Um Court martreal process has changed dramatically
since I started practice many years ago,
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Um, and as of the last
few years, the ability of the convening
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authority or the commanding general who convenes
the Court Martial, to take any action
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on either of the findings or the
sentence post trial is very limited, whereas
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in my day they had pretty much
carte blant authority. So the appeal process
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starts once the case is forwarded from
the field, wherever it took place,
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whether that be Fort Brag or,
you know, rotor spins. That court
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martial roll record trial, which is
a transcript and all of the associated paperwork
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that go into it, gets put
together and forward into the particular services what's
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called a court of criminal appeals.
There's an army court in Air Force,
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a Navy Marine Corps and even a
coastguard court of criminal appeals, and so
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those courts will receive the record of
trial from the field and that is what
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starts the official appeals process. So
the appellate court will receive and then I'll
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just go on from there. What
we do is, once we get the
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record of trial, we start scouring
through it and finding out what error is
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made by a military judge or by
a prosecutor or even by defense counsel at
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trial may have deprived the client of
a fair trial. And then there is
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a process of writing and draft being
a legal brief with outlined the issues that
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we believe deprived the client of a
fair trial, and then that brief is
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filed with the respective court of Criminal
Appeals Um, much like at the trial
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level, anybody convicted of the Court
Martial under article sixty, and I'll talk
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in a second about the differences,
but if you are convicted at artific at
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a court martial, then you receive
either a year's confinement or what it's called
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a punitive discharge, which is either
a bad conduct or a dishonorable discharge,
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or, if you're an officer,
or a dismissal. Then your case is
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automatically going to be reviewed by a
court of Criminal Appeals. So for the
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most part, I would say probably
of all court martial convictions, if not
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higher, going to be reviewed by
a court of criminal appeals and you will
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be assigned just like you or at
the trial level, if you're in the
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army, a tds lawyer or at
the Air Force and you know an a
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D C or a circuit defense council, you will be assigned a Jag as
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your attorney Um for the appeals process. One of those things to keep in
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mind is since that is there is
a mandatory appeal. A lot of people
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who have been convicted based on a
guilty plea. Their their case can be
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heard on appeal, even though that's
like guilty. Unless they withdraw their case
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from appeal, they're going to have
an appeal and that appeal maybe nothing but
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a making sure that the military judge
checked all the boxes and a guilty police
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scenario. But even, and you
know, rather as a result of that,
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everybody is going to get an appeal. So it's not not everybody is
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going to be seeking a civilian attorney. But much like in a court martial,
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if you're accused a very serious crime, you have the right, and
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I would encourage you to a lot
and hire a capavilla and Williams, or
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you hire a civilian attorney and has
experience in the military law arena. I
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would encourage anybody who has been convicted
of a serious crime and it believed that
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they were wrongly convicted to contact um
a civilian attorney to represent them on appeal.
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Like a trial, you get a
military lawyer. The appell up defense
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assignments for the most part tend to
be two year assignments. The process almost
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always takes more than two years.
We're pretty close to it. Um.
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Do you get somebody that's already been
in the job a year? That's without
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question that by the time your case
comes up on appeal, that lawyer is
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no longer going to be an appeals
position and so you're not going to have
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any continuity of representation, Um,
unless you hire let's talk a bit more
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about these articles. Sixty six appeals. Just a few more questions. So
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let's say we're, you know,
I'm at trial or Mickey's at trial and
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the prosecution wants to admit a sexual
assault forensic examination, for example. Um,
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and we don't know. Objack,
we missed the ball. It's got
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here saying there, Mickey and I, we don't have a Jack. We
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make a mistake. Um. Does
every issue like that make it to oral
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argument before one of the Court of
Appeals? Or, you know, are
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some cases just based on brief talk
to me a little about that process.
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No, that's that's and I'm sorry, real quick, Um, because you'll
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read these appeals right rob, I
know what you're getting at, and sometimes
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it'll be this lengthy this lengthy dissertation
from the court that comes down, but
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other times it's just like a one
sentence or two sentence, right, a
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statement from them saying no, there's
nothing here to see. Um. So
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that that's my that kind goes into
that as well, but I'm sorry.
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Sure. So let me talk about
a couple of things there. And a
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pet peeve of mine is when a
case goes up on appeal and the assigned
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military lawyer does not write a brief
and a contested case. In my opinion,
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if you if your case we're contested
at the trial level, then you
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should have a your case should be
thoroughly brief before the Court of Appeals.
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Unfortunately, that doesn't always happen.
Similarly, Um, a case has been
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thoroughly briefed, I think it's incumbent
upon the courts of appeal to write an
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opinion addressing the issues raised by the
appellant through their council. The Air Force
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Court, I give them credit,
is much better at doing that than the
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army court, for example, who
will unfortunately, you can file a forty
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page brief and get a one sentence. You know that the findings are affirmed.
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Wow, wow, I did not
know that. So, yeah,
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so, you know, you would
think that when you're looking at a short
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form of firmance, as we call
it. That that's when the guys played
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guilty and there's just no issues raised. But there are times when we will
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thoroughly address an issue. In fact, I've had a couple of cases in
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which we've thoroughly briefed an issue,
the court of Appeals did not ride on
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it at all and then we've gotten
a review by Cap Um and you know.
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So, so, what you know? Well, how do they decide?
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I mean, what are you going
like? Like, what are the
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deciding factors for say, Aka?
Right, Um, when does ACTA say,
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okay, we want to hear oral
argument on this, an act of
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the Army Corps of criminals? Right? So the granting of oral argument is,
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UM, pretty rare these days,
unfortunately. I've seen post covid Um.
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I frankly I triged some of its
a lazy this some of it too.
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You know. Maybe other factors,
Um, but I am noticing that
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the court docket for oral argument is
not that full now. A lot of
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that's because, unless there's a unique
issue that I feel oral argument is going
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to advanced my clients case, I
don't ask for oral argument all the time.
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Um, now I've got a case
right now in which I think that
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there are a couple of very unique, um, novel legal issues that are
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not adequately addressed in the government's brief, and I want to argue the case
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before the court. Um. But, for example, I just had a
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case out of Fort Stewart where we
had a premeditated murder conviction overturned. Um,
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we have asked for oral argument,
the court denied it and then reverse
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the conviction, and that on a
guilty please. So yeah, that's got
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to be pretty rare. I mean
I imagine bill that's got it pretty rare
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because you waive a lot of those
rights when you plead guilty. Absolutely Um.
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This was a case in which Judge
Robertson just did not go into Um.
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There was a very valid self defense
argument that was raised during the of
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Talance coloqually with the judge, during
the care inquiry as we call it,
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and the judge just kind of blew
past it. Um. So, you
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know, but in a case like
that we asked for oral arguments and after
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the case got overturned on appeal,
you know, I talked to one of
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the appellate judges and he said we
just didn't feel that oral argument was going
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to move the needle one way or
the other. I mean, you know,
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and you gotta remember, oral arguments
an hour for both sides. Oh,
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the judges on the Court of Appeals, all the three judges on the
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Court of Criminal Courts of criminal appeals, are going to be asking questions.
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Unless that's going to Um, move
the needle. As I said, one
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way or the other, I'm not
going to request them in the court.
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It's not going to grant it.
Understood. All right, shifting gears.
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Now the same kind of deal with
the article sixty nine appeals. What are
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they kind of break it down for
us so we understand exactly what we're talking
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about under this particular article. Sure, and article sixty nine. Of all
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of the rules that have changed in
the last few years, I think the
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changes to article sixty nine are are
some of the more dramatic. Um M.
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happens now is the you have Um, three year from the data of
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the convenience athority action, one year
from the data convening authority, action to
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petition the Judge Advocate General of the
service for review of your court martial conviction.
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Um, as part of that you
can recorse that forward the case to
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the Court of Criminal Appeals for review
and analysis. It used to be that,
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and just so everybody's clear, and
article sixty nine, appeal is one
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in which you don't receive a year's
confinement or a bad conduct dishonorable or a
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dismiss so it's what we call a
sub jurisdictional appeal. Right. So in
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a sub jurisdictional appeal, that it
used to be, you've got a petition
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to the Judge Advocate General and some
captain in the Judge Advocate General's office pencil
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whipped it and that was the end
of your case. And I've had clients
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who have been convicted of fairly serious
crime that, for example, requires sex
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offender registration, but did not get
a discharge for for whatever reason, as
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part of their sentence and were denied
the right to really a robust appeal.
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That's incredible. That's in yeah,
I had an officer, a major,
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who was convicted that Leavenworth of a
sexual assault, got six months and no
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dismissal and as a result, by
the time I got the case his his
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appeal was limited to a petition to
the Judge Advocate General. Wells, I
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mean that's an. Okay, that
lifetime sex offender registration. It's terrible.
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Now, at least with the penetrative
offenses, for better or worse, it's
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the mandatory D D if you're convicted. But to think about before the correct
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yeah, I mean to think about
before the rule change, you had folks
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that were convicted of felony level offenses
right that, like bill said, possibly
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required registration, and yet your rights
to an appeal are basically non existent.
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was that a jury trial to bill? Was that? Or was that a
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judge trial? No, that was
a judge trial. Interesting, UM,
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John Saunders. So I don't know
if you'll runt into John, but he
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gave him six months and no kick
after convicting them as forcible solemigny, which
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is just absurding, Um and the
guy. And the guy gets no real
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appeal and is now on the registrate
for life. So under the new system
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the judge would have been required to
give him a dismissal and therefore, and
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you know, again putting aside whether
that's a good plan or a bad plan,
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it at least gives the service member
a appeal, Um, but on
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non penetrative offenses, Um, you
know, it could be for example,
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of larceny conviction. Um, you
can be convicted of a larceny, get
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a couple of months, no,
no discharge. Um. I just had
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a case in which a service member
was convicted a court martial of Um fraud
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by sending, basically convicted, a
military supply from doubt range back to the
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states. It took us two and
a half, three years. We got
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his conviction overturned by the Judge Advocate
General. But that's the case that now,
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if the judge advocate general had denied
the appeal, we could petition the
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Court of Criminal Appeals for review.
And why? That's one of them.
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Why? What? Why would you
be able to petition you know, Acca
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or whatever else, whoever else,
to put that case in front of a
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pellet courd Um? One of the
few areas in which Congress change the law
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to benefit the accused. That's really
the only reason I can say it.
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Um, the law change so you
can now, at least now it's not
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unlike the article appeals in mandatory review
and there's a little glitch on the law
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which says that you have to apply
for Article Sixty nine review first and Um
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and you can appeal if that's not
a favorable result. Basically, that's interesting
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to me. I mean, I've
heard about a lot of these things.
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I don't track, you know,
what goes on at the appellate level as
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closely is obviously at the trial level. Um, but you know, I
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guess it's nice to see some changes
being done for the benefit of the cused
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because, Lord knows, it seems
like all the other changes are being done
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to make it easier to convict folks. Let me ask you this bill.
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Can I throw scenario at you and
you tell me what you think if this
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would be irreversible air, because I
think this one's going up. So let's
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say there's a there's a court martial's
judge alone and the judge is a victim
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of the same crime. Okay,
the victim of the same crime that the
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accused is charged with, but fails
to disclose that to the folks before he
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elects to go judge alone. And
then, you know, the two sides
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figure it out after the court martial, right, they say that judge finds
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them guilty and then it comes out
that the judge was also a victim of
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the same crime. You do a
post trial three and figure it out.
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Whatever and then and they have the
same judge sit there and say, well,
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you know obviously that the challenge will
be biased. We think you should
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remove yourself. Right. And have
we known that ahead of time, we
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would have asked you. We wouldn't
have gone judge alone, or we would
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have asked for a different judge.
Right. And the Judge Says No,
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I don't I don't think so and
rules against you in the post trial.
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Three nine. Do you think that's
a good one? That would likely come
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back on appeal, UH, down
to the lower court, or do you
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think that there's probably no chance that
that that could happen? Well, you
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know, the typical lawyer answer is
it depends Um and I say that a
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few cases years ago in which people
challenge the military judge. The client was
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accused of stealing from U S A
A, filing a false insurance claim,
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and people file the change against military
judges, saying well, you're a member
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of USA, so you are theoretically
a victim of this crime. Uh Huh,
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that's interesting. Yeah, the appellate
not um much called of with finding
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that that's not trect, that that
that the military judge is not a victim.
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You know, I think if you're
saying, you know, an armed
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robbery for example, then yeah,
I would think that the judge not only
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how the duty to disclosed, but
they're failure to do so would be reversible
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error. And I think one of
the important things for I was gonna say
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one of the one other fact might
be is that this judge has disclosed in
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other cases but for some reason didn't
disclose it in this case. Very strange.
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Well, yeah, I think if
the judge felt that it was important
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enough to disclose it in other cases, that strengthens the arguments. It brings
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up a couple of different issues,
one of which is feels are generally speaking
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limited to what happens at trial.
So, for example, in your scenario
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UN rush, the defense counsel is
able to put that in front of the
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onto the record in some way,
then it's going to be more difficult to
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point out on appeal that the judge
did not do not act. Similarly in
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other cases, and I think about
the trial level. That did happen actually
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with the post trial. Um,
I think they came out there in this
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empathetical scenario. Um. Anyway,
I just wanted well, that's but you
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raise it, you raise it and
I'm sorry to jump in here, rob
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but that's that's what I think is
important is you have to object at trial
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because if you don't, what happens? It's waived you, you can't you
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can't hear it on appeal. Right
is that is that, and I think
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we're gonna get into a little bit
of that, of mistakes that Defense,
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defense attorneys make at the at the
trial level that you see. Yeah,
287
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there's a couple of aspects to that. One is that not everything that goes
288
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wrong at trials to a reversal.
Nobody's in you know, the Spring Court
289
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is set not on tind of perfect
right. So you know, people will
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call sometimes and, you know,
they'll tell me about something that happened at
291
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their trial and it's like, okay, that's tomato, tomato type stuff.
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That doesn't really impact on whether or
not you have a fair trial. Um,
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you know, it's not a perfect
trial but again, doesn't have to
294
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be. But the other part of
that is, and one of the things
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that I deal with on a on
a daily basis is cases that are not
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deserved, issues that are not preserved
for appeal. So, for example,
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if you know, we'll just take
one of the hot items in the military
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right now, which is five thirteen
motions. Um, you know, in
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the access to an alleged victims mental
health records. Um. Oh, there
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are some very strict requirements of what
has to be put on the record in
301
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order for me to argue that issue
on appeal. Um, the courts of
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criminal appeals do not do any independent
investigating. They deal with what we present
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to them. So I'll give you
a guy, the perfect example. I
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had a case recently in which a
very good civilian defense council Um lost the
305
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case at trial and one of the
issues that was raised was during the warder
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that the government struck every Hispanic Service
member that was on the panel, and
307
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the reason in the bat what's called
the absent objection. But but it occurred
308
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to us that nowhere in the record
did it say what they didn't make that
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very simple statement of Arc flying is
Hispanic, even though they had an obviously
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Hispanic surname. Now, that's not
an issue that's going to be waived forever,
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but there is, you know,
Um, because there are times when
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that there are ways to supplement the
record. But it's just important. You
313
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know, it's hard for me as
an appellate counsel who used to do a
314
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lot of trial work and I read
these cases and there's just highs when I'm
315
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throwing the record against the wall because, uh, some young, usually military,
316
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defense counsel gets intimidated by a military
judge and, you know, and
317
00:25:10.640 --> 00:25:15.000
backs off of what would otherwise be
a very valid issue raised at the trial
318
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level. And for the most part, with everything in the law, there's
319
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an exception here and there, but
for the most part, if it's not
320
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raised a trial, it's waived on
appeal. And you know, we talked
321
00:25:26.480 --> 00:25:32.559
about this a few days ago offline
with with five thirteen in particular, they've
322
00:25:32.640 --> 00:25:38.079
made it so darned difficult to get
those records disclosed that it puts the defense
323
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counsel in a losing position. I
mean, you know, they a lot
324
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of times, at least in the
last few five thirteen hearings I've had,
325
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the judge wants me to go on
the record with what I think is in
326
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those you know, in those documents, and the reality is, before we
327
00:25:53.559 --> 00:25:57.559
see them there's really no way besides, you know, proffering to the court
328
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what's in them. And it's almost
become a super rule, you know,
329
00:26:02.519 --> 00:26:07.119
a super rule of relevance to even
request an in camera review of those things.
330
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So I feel bad for defense counsel
and, I imagine on the appellate
331
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side Bill. Yeah, I mean
five thirteen has got to be something that
332
00:26:14.000 --> 00:26:18.319
Um, you know, got to
be frustrating for you as well well.
333
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And Congress and the president made an
intentional decision, and I think they made
334
00:26:22.720 --> 00:26:27.079
the wrong decision to shift that burden
much further than it should have been shifted.
335
00:26:27.799 --> 00:26:30.880
I get it that, you know, somebody is the alleged victim of
336
00:26:30.920 --> 00:26:36.160
a sexual assault. Just like in
a four twelve rape shield motion, you
337
00:26:36.200 --> 00:26:38.559
don't want the defense councilor to just
be digging up everything that the person ever
338
00:26:38.599 --> 00:26:42.279
did in their lives. It's not, you know, fair to the alleged
339
00:26:42.359 --> 00:26:48.920
victim to have their entire history of
medical treatment brought before an open court.
340
00:26:48.440 --> 00:26:55.640
But there are ways to resolve that
without going so far the other way that
341
00:26:55.759 --> 00:26:59.880
an accused of tonight a fair trial. It has become the rule, as
342
00:27:00.039 --> 00:27:03.720
has currently written, is broken.
It is and it has become a much
343
00:27:03.799 --> 00:27:08.079
harder motion to litigate than than four
twelve. Um, drawing the nexus between
344
00:27:08.160 --> 00:27:15.039
the you know, the alleged crimes
and victim mental health records is nearly is
345
00:27:15.119 --> 00:27:19.880
nearly impossible these days, unless your
client is like the husband of of the
346
00:27:19.960 --> 00:27:23.880
alleged victim or or a boyfriend or
something. They were dating for a long
347
00:27:23.960 --> 00:27:27.119
time and can give you specifics.
If you don't have that, good luck
348
00:27:27.160 --> 00:27:32.960
getting into those records. Yeah,
and the only other thing that I've seen,
349
00:27:33.039 --> 00:27:36.160
and I don't know you guys,
you're the trial lawyers, but you
350
00:27:36.240 --> 00:27:41.359
know, can you proper that your
expert has reviewed, uh, the statement
351
00:27:41.519 --> 00:27:45.920
of the victim and, you know, the conduct of the alleged victim and
352
00:27:47.119 --> 00:27:49.680
and interviewed your client and based on
that, they think that there is a
353
00:27:49.799 --> 00:27:55.559
likelihood that this person has been diagnosed
with something Um or? Is that just
354
00:27:55.680 --> 00:27:57.920
not going to be enough? No, I did that exact thing in a
355
00:27:59.359 --> 00:28:03.359
Navy Court Martial, uh, I
think last year. Um, we had
356
00:28:03.559 --> 00:28:07.559
some discussions with third party witnesses who
came out and said, yeah, you
357
00:28:07.640 --> 00:28:11.279
know she uh, you know she's
been she's been seen for this or diagnosed
358
00:28:11.359 --> 00:28:15.720
with that. Uh. And then
we have the expert go through her her
359
00:28:15.839 --> 00:28:19.079
transcribe statement, watched her video interview
uh and we were able to call our
360
00:28:19.160 --> 00:28:22.720
expert on the stand to proffer what
he thinks could be out there, and
361
00:28:22.839 --> 00:28:27.079
the judge in that case did order
an in camera review Um. But the
362
00:28:27.119 --> 00:28:32.160
big thing we had in that was
a close relationship between my client and the
363
00:28:32.279 --> 00:28:36.519
accuser, which obviously helps kind of
bridge that gap. I think without that
364
00:28:36.839 --> 00:28:40.799
lynchpin it's awfully hard and and it's
a rule that makes sense. I mean,
365
00:28:40.839 --> 00:28:41.960
like you said, Bill, we
don't want to be digging into every
366
00:28:42.079 --> 00:28:47.119
area of an alleged victims. You
know, mental health, all of their
367
00:28:47.119 --> 00:28:52.240
mental health records. But if you
can draw that nexus between the allegations and
368
00:28:52.799 --> 00:28:56.200
her mental health treatment, it shouldn't
be quite so hard to get those records.
369
00:28:57.559 --> 00:29:00.519
I agree. I agree. I
think the pendulum has swung too far,
370
00:29:00.720 --> 00:29:06.359
just like it's flung too far twenty
years ago when fourts weelveth first came
371
00:29:06.400 --> 00:29:10.759
out, and basically any prior conduct, I mean part of an alleged victim,
372
00:29:10.960 --> 00:29:12.880
was going to be awful limits until
the Supreme Court and the Court of
373
00:29:12.920 --> 00:29:18.079
Appeals for the armed forces have stepped
in and said now you know there are
374
00:29:18.079 --> 00:29:22.440
there are things. For example,
one of the things that the repellate courts
375
00:29:22.480 --> 00:29:27.000
have said is it's not up for
a trial judge to determine whether a fourts
376
00:29:27.039 --> 00:29:30.960
weld issue is trvil. Yeah,
you know, they have to say whether
377
00:29:32.039 --> 00:29:36.160
it's relevant, that it's a question
for the panel sort out. The US
378
00:29:36.200 --> 00:29:38.720
v Z. Yeah, that is
US v Z and and it's a great
379
00:29:40.039 --> 00:29:44.400
I love that rule because, Lord
knows, if they ever change that rule,
380
00:29:45.119 --> 00:29:48.839
I think we're gonna lose a lot
more for twelve motions than we otherwise
381
00:29:48.880 --> 00:29:52.960
would have, because I think that's
a proper protection on basically what would amount
382
00:29:52.960 --> 00:29:56.920
to the judge's authority. Well,
I've had a judge tell me once and
383
00:29:56.160 --> 00:30:00.319
I had my client right in Affidavita, like we always do, right in
384
00:30:00.400 --> 00:30:03.079
support of the four twelve motion,
and he even said on the record,
385
00:30:03.200 --> 00:30:07.079
yeah, I don't think that's all
that credible or whatever, and I said
386
00:30:07.440 --> 00:30:11.839
what, what do you sometimes it
strikes sometimes you gotta you know this isn't
387
00:30:12.000 --> 00:30:15.480
this is true. I mean I've
I've been in four twelve hearings and I've
388
00:30:15.519 --> 00:30:19.319
had to remind judges when they come
close, about the credibility of one versus
389
00:30:19.359 --> 00:30:22.799
the other. You know, your
honor, that's not your job, Um.
390
00:30:22.240 --> 00:30:25.480
But it's an interesting rule and it
is a bit of a handcuff for
391
00:30:25.519 --> 00:30:30.160
the judges yeah, but bill,
going back to some of the appellate stuff
392
00:30:30.240 --> 00:30:33.319
here, Um, we've kind of
got into this a little bit already,
393
00:30:33.400 --> 00:30:36.480
but let's talk about it in some
more depth. What, what kind of
394
00:30:36.720 --> 00:30:41.640
issues are you seeing from young defense
counsels that are constantly popping up on the
395
00:30:41.720 --> 00:30:45.079
record, a record of trial,
I guess. In other words, you
396
00:30:45.119 --> 00:30:48.160
know what, what are some wisdom
you can pass on to the defense attorneys
397
00:30:48.160 --> 00:30:53.799
that are still in the arena battling
out these trials? Yeah, I think
398
00:30:53.839 --> 00:30:59.400
that. So some of the hot
issues before the appellate court these days are
399
00:30:59.440 --> 00:31:04.160
the prior can sisted statements and prior
inconsistent statements and the proper way that they
400
00:31:04.279 --> 00:31:08.920
may be used at trial. I
see an awful lot of government counsel trying
401
00:31:08.960 --> 00:31:15.559
to bolster Um a fairly weak case
by using statements that the alleged victim may
402
00:31:15.640 --> 00:31:21.240
have made you at some other point
or trying to keep out statements that the
403
00:31:21.279 --> 00:31:25.759
alleged victim they that are inconsistent with
what they're saying now. And I would
404
00:31:25.799 --> 00:31:29.799
just encourage young counsel to make sure
that they know the rules on that before
405
00:31:29.880 --> 00:31:32.640
they go into court because, frankly, a lot of the judges don't.
406
00:31:33.559 --> 00:31:37.000
Um, you know, we got
a reverse them. It is and we
407
00:31:37.079 --> 00:31:40.920
had reverse the last year in a
case from the captain from the Court of
408
00:31:40.960 --> 00:31:47.519
Appeals where the government had tried to
bolster, Um, fairly the case but
409
00:31:48.160 --> 00:31:52.359
prior consistent statements that were not attacked
at the trial level. Um, and
410
00:31:53.000 --> 00:31:56.839
so you know, I think that's
one of the hot issues. Um,
411
00:31:57.640 --> 00:32:02.480
I think that panel member a selection
is becoming a hot issue again. Yes,
412
00:32:02.680 --> 00:32:06.920
UM, when you walk into a
court room and you know your client
413
00:32:07.000 --> 00:32:10.519
maybe the only African American or the
only Hispanic in the courtroom and Um,
414
00:32:10.640 --> 00:32:15.720
you find out that on the panels
to near that the convenient authority struck Um,
415
00:32:15.920 --> 00:32:22.319
a number of other minorities. You
know, I strongly encourage counsel to
416
00:32:22.440 --> 00:32:25.279
just you know, you've got to
stand up and you may get beaten up
417
00:32:25.359 --> 00:32:30.799
by the judge who's going to try
and talk you out of filing that motion.
418
00:32:31.279 --> 00:32:37.240
But you know, thoroughly looked into
at the trial level, it's going
419
00:32:37.279 --> 00:32:40.079
to be much harder to raise it
on appeal. One of the major and
420
00:32:40.160 --> 00:32:44.519
this is a little off topic,
but one of the major I don't know
421
00:32:44.599 --> 00:32:46.279
if I should say changes, but
I think that's the most proper word that
422
00:32:46.400 --> 00:32:55.519
I've seen as a trial attorney is
the number of potential panel members who are
423
00:32:55.799 --> 00:33:01.079
victim advocates or sharp reps that are
somehow finding their way onto these panels.
424
00:33:01.519 --> 00:33:05.960
I've had almost, I think,
three of my last four trials bill,
425
00:33:06.880 --> 00:33:10.720
there's been at least out of the
people, at least seven or eight that
426
00:33:10.839 --> 00:33:15.640
have served in that capacity and of
course I'm a little bit UH. I
427
00:33:15.720 --> 00:33:19.440
don't want to point fingers at anybody
per se, but it does kind of
428
00:33:19.519 --> 00:33:22.559
make your intent to go up.
How are these folks getting picked, Um,
429
00:33:22.920 --> 00:33:27.839
and and what process is really going
in to make sure they're properly vetted,
430
00:33:27.839 --> 00:33:30.079
because we're busting more panels now than
ever before because of that very issue.
431
00:33:31.559 --> 00:33:35.920
Yeah, I know we're gonna talk
a little bit about unanimous verdicts.
432
00:33:36.000 --> 00:33:38.039
You know, and I've said for
years and years, Um, you know,
433
00:33:38.079 --> 00:33:40.839
I don't necessarily care about a lot
of the changes made. Give me
434
00:33:42.160 --> 00:33:46.559
random selection, randomly selected panels and
unanimous verdicts and I can deal with the
435
00:33:46.640 --> 00:33:53.119
rest. And I think you know, Um, having the convening authority,
436
00:33:53.200 --> 00:33:59.440
who was getting pressured by Congress,
Um, you know, quote, stop
437
00:33:59.480 --> 00:34:04.000
out sexual assault, pick panel members. It's not a great surprise when they
438
00:34:04.039 --> 00:34:07.480
pick panel members who are going to
be tough on sexual assault cases. I
439
00:34:07.519 --> 00:34:09.679
mean nobody's going to be easy on
sexual assault cases. If they think your
440
00:34:09.719 --> 00:34:14.519
clients guilty, they should convict your
clients. Absolutely. But, but,
441
00:34:14.880 --> 00:34:20.159
you know, but when somebody comes
in with a completely oh Um, when
442
00:34:20.679 --> 00:34:27.199
they completely pre judge, no,
Um, I got I got real problems
443
00:34:27.280 --> 00:34:30.760
with that. I do too.
It's one of the that'll be a discussionensing
444
00:34:30.840 --> 00:34:36.360
opinion. That ould be a discussion
we can have on another day on exactly
445
00:34:36.440 --> 00:34:40.960
how unfair I think it is that
essentially convening authorities picked the panel at the
446
00:34:42.079 --> 00:34:45.199
advice of who the staff judge advocate, who happens to be the boss of
447
00:34:45.280 --> 00:34:51.119
the prosecutors Um. But that we
could do a whole blog on that.
448
00:34:51.320 --> 00:34:53.800
Yeah, D percent, but I
know we're running a little close on time
449
00:34:54.119 --> 00:34:58.719
and we do want to talk about
unanimous verdict because we had a big decision
450
00:34:58.800 --> 00:35:00.639
come out, I think, late
last you can all turn it over Mickey,
451
00:35:00.760 --> 00:35:05.199
to pick your brain on on what's
going on over there. No,
452
00:35:05.440 --> 00:35:07.679
it's a Um, you're right,
rob the so the army came out with
453
00:35:08.199 --> 00:35:15.559
an opinion out of or actually,
Um, I think it was on Friday
454
00:35:15.760 --> 00:35:17.239
USB dial and then, but before
the army did, I think, the
455
00:35:17.800 --> 00:35:22.119
the navy and, uh, the
air force had already ruled on on this
456
00:35:22.400 --> 00:35:27.360
issue at the appellate level. Now, to be clear, right bill,
457
00:35:27.400 --> 00:35:30.360
there's there's three levels. So you've
got the trial level, the appeal level
458
00:35:30.400 --> 00:35:34.239
and then you've got kind of the
the appeal appeal level, which is kind
459
00:35:34.239 --> 00:35:37.440
of like the Supreme Court almost of
the military Um. And so right now,
460
00:35:37.599 --> 00:35:43.360
this issue unanimous verdicts have all been
ruled on at the first Appellate Level,
461
00:35:43.480 --> 00:35:46.280
which is Aka, Um, the
navy corps of Criminal Appeals and then
462
00:35:46.280 --> 00:35:50.559
the Air Force Corps of Criminal Appeals, and they have all come out and
463
00:35:50.719 --> 00:35:54.320
said, basically, this issue with
your naimes vertics, which is something rob
464
00:35:54.400 --> 00:36:00.280
and I have been discussing on this
podcast for months, how much we want
465
00:36:00.360 --> 00:36:04.800
the unanimous verdict. They've all come
out and said, basically, yeah,
466
00:36:04.840 --> 00:36:07.199
you're not tied to it, deal
with it right. Just go back to
467
00:36:07.239 --> 00:36:12.599
the status quo of three fours and
best of luck to you out there,
468
00:36:13.440 --> 00:36:15.360
um, and I just kind of
want to get your thoughts about that.
469
00:36:15.440 --> 00:36:17.599
If you had read the Act opinion
and what you would what you what your
470
00:36:17.639 --> 00:36:21.719
take is on it and then,
Um, any comments that you might have.
471
00:36:22.519 --> 00:36:28.760
Yeah, I think the act,
I think that the opinion is extremely
472
00:36:28.880 --> 00:36:36.199
lacking in substance. Um. There
may be a legitimate argument out there that
473
00:36:36.639 --> 00:36:38.840
the you know, in the springboard
said last year again that the military is
474
00:36:38.880 --> 00:36:45.840
a different UM society, so to
speak, but for there to be only
475
00:36:46.000 --> 00:36:53.440
one criminal jurisdiction and in the entire
country, that allow non antomous verdicts,
476
00:36:54.119 --> 00:37:01.840
and for that one system to be
the system that is um trying the service
477
00:37:01.920 --> 00:37:08.360
members that have fought for our country
as an a nomination Um. If anything,
478
00:37:09.159 --> 00:37:15.000
given the possibilities of unlawful commanding influence, given that Um convening authorities picked
479
00:37:15.039 --> 00:37:20.239
the panel members, this should have
been the first system to go to a
480
00:37:20.679 --> 00:37:27.800
requirement for a unanimous verdict. Um, and the holding otherwise Um is,
481
00:37:28.159 --> 00:37:32.679
I just think, extremely, extremely
um sad. And you know, you
482
00:37:32.960 --> 00:37:37.320
talked about the next level then.
You know, appeals from any of the
483
00:37:37.440 --> 00:37:39.679
courts of criminal appeals go to the
Court of Appeals for the Armed Forces,
484
00:37:40.679 --> 00:37:45.400
which are five civilian judges, unlike
the courts of criminal appeals, which are
485
00:37:45.440 --> 00:37:49.840
all active duty military judges. But
I don't think that there's one of the
486
00:37:49.960 --> 00:37:54.199
question. All that half is going
to Um. I don't think that's can
487
00:37:54.239 --> 00:37:57.960
have disturbed that position. I think
they're going to leave it up to Congress
488
00:37:58.119 --> 00:38:00.119
to act. Bill. Do you
think it's I think that's just a long
489
00:38:00.239 --> 00:38:02.760
thing. Bill. Do you think
it's going to go to the Supreme Court?
490
00:38:05.920 --> 00:38:08.880
I think will. Whether or not
the Supreme Court's gonna Grant Review is
491
00:38:09.320 --> 00:38:14.760
Um question that I don't have a
first of the ball on. Yeah,
492
00:38:15.400 --> 00:38:21.199
after the Briggs and and Daniels in
comuge decision last year, which the Supreme
493
00:38:21.280 --> 00:38:29.440
Court held the penalty for Um sexual
cases in the military even though they're not
494
00:38:30.119 --> 00:38:36.280
allowing any other jurisdiction, I have
um I don't have a lot of confidence
495
00:38:36.320 --> 00:38:38.079
in the Supreme Court do the right
thing in that area. Well, the
496
00:38:38.280 --> 00:38:42.800
Supreme Court, if through really the
history of their jurisprudence with the military,
497
00:38:42.840 --> 00:38:45.320
has kind of has taken a step
back and said it's just a different society
498
00:38:45.400 --> 00:38:49.840
and almost defer to how the military
wants to do things, which is I
499
00:38:49.920 --> 00:38:52.400
think if they do except to hear, if they do decide to hear that
500
00:38:52.559 --> 00:38:57.320
case, my guess is they're going
to come back and say it's fine the
501
00:38:57.360 --> 00:39:02.400
way that it is even though right
now you see the different branches taking active
502
00:39:02.519 --> 00:39:10.360
steps to make military courts more like
civilian jurisdictions every day, including the law
503
00:39:10.519 --> 00:39:15.920
that was just passed where now,
basically with serious with sex offenses and other
504
00:39:15.000 --> 00:39:21.519
serious crimes, the commanders are not
even going to have a really say and
505
00:39:21.639 --> 00:39:23.199
what happens, and it's good.
It's going to go to the prosecutors,
506
00:39:23.480 --> 00:39:28.320
and it's like we're just forgetting that. Everything that's happening right now is to
507
00:39:28.400 --> 00:39:31.159
make military courts more like civilian courts
and that's not addressed in ACTA's opinion,
508
00:39:31.199 --> 00:39:35.199
which I agree with you, Bill, is is very lacking in every area,
509
00:39:35.360 --> 00:39:38.719
but too when at the unanimous verdicts
and Pani member selection. That's right,
510
00:39:38.920 --> 00:39:42.760
right, and one of the things
you brought up a great point,
511
00:39:42.800 --> 00:39:46.639
where about the law and about different
society that the military is and and so
512
00:39:46.880 --> 00:39:54.320
Aka addressed uh. I think it
was judge Pritchard's UH ruling, because Judge
513
00:39:54.320 --> 00:39:57.119
Pritchard the way he did it.
He said, Hey, it's under the
514
00:39:57.159 --> 00:40:01.119
Fifth Amendment, under the equal protection
laws, right, and basically he said
515
00:40:01.159 --> 00:40:05.400
that they're similarly situated. That was
the first step and then the next step
516
00:40:05.559 --> 00:40:08.199
was is is a rational basis for
for the law there is, then there's
517
00:40:08.199 --> 00:40:15.239
no violation. To address the first
one, the ACCA said no, they're
518
00:40:15.280 --> 00:40:17.159
they're not similar situated, but didn't
explain why. They just said no,
519
00:40:17.199 --> 00:40:22.239
they're not similarly situated for whatever reason. But even if they are similarly situated,
520
00:40:22.559 --> 00:40:24.400
there is a rational basis for it. And he said the first.
521
00:40:24.599 --> 00:40:29.960
But to address the first one about
being similar situated, they just said the
522
00:40:30.039 --> 00:40:32.960
military is a specialized society, separate
from Civilian Society, which has by necessity,
523
00:40:34.039 --> 00:40:37.800
developed laws and traditions of his own
during its long history, and I'm
524
00:40:37.840 --> 00:40:43.559
thinking traditions. This is a society
whose law changes dramatically from year to year
525
00:40:43.880 --> 00:40:46.639
with the N D A a.
So how can you possibly say that it's
526
00:40:46.639 --> 00:40:51.079
steeped into this this long standing tradition, when it's, like you said,
527
00:40:51.199 --> 00:40:55.239
so close, so close to what
the civilians do? The reality is,
528
00:40:55.679 --> 00:40:59.199
and and I can't read their mind, I can't read their heart, but
529
00:40:59.280 --> 00:41:02.880
the reality is is I think that
they're just scared to do the right thing
530
00:41:02.960 --> 00:41:07.960
here. Then the right thing is
basically unanimous verdicts. That is the right
531
00:41:07.000 --> 00:41:10.840
there is no other. There is
no reason to not have there's no rational
532
00:41:10.920 --> 00:41:15.039
basis that I can think of.
Right, they want to say that is
533
00:41:15.159 --> 00:41:19.000
this Um. What is their argument? Oh, hung juries, and they
534
00:41:19.079 --> 00:41:22.039
completely ignore the argument that judge pitcher
puts forward about that. They just say,
535
00:41:22.079 --> 00:41:24.440
Oh, yeah, we're wri about
hung juries too. The really,
536
00:41:25.000 --> 00:41:28.280
I just think that they don't want
to do the right thing because they know,
537
00:41:29.000 --> 00:41:34.119
they know how much more difficult it
will be for the prosecution to get
538
00:41:34.199 --> 00:41:37.199
a conviction with the unanimous verdict.
And it should be more difficult because a
539
00:41:37.239 --> 00:41:39.760
lot of these cases we get,
Bill, and you know this, are
540
00:41:39.880 --> 00:41:44.519
crap like they should not be seeing
the light of in the court martial and
541
00:41:45.039 --> 00:41:49.400
they're worried that the prosecutors are gonna
lose time and time again. Well,
542
00:41:49.679 --> 00:41:52.519
I mean that that should not be
a concern, but that seems to be
543
00:41:52.639 --> 00:41:57.239
the the the kind of the current
underflow here. I agree with you,
544
00:41:57.360 --> 00:42:00.440
Mickey. Well, you know,
go ahead, Bill, I was going
545
00:42:00.480 --> 00:42:07.840
to say it to the reclamoring for
Um, you know, more convictions.
546
00:42:07.599 --> 00:42:12.079
Uh, we're always told, you
know, that these cases would be better
547
00:42:12.159 --> 00:42:16.039
off tried by civilian and you know, any prosecutor I've ever talked to,
548
00:42:16.239 --> 00:42:20.840
whether they be in the state or
the federal side, it's also involved in
549
00:42:20.880 --> 00:42:23.880
military cases, will tell you that
the military prosecutors like tonic case that the
550
00:42:23.920 --> 00:42:30.119
civilian world wouldn't even touch. We
discussed that a couple of weeks ago about
551
00:42:30.559 --> 00:42:35.440
how how about? We're talking about
jurisdiction. Jurisdiction does the state? Can
552
00:42:35.519 --> 00:42:37.480
the state prosecute this? Yes,
and so can the military. But what?
553
00:42:37.599 --> 00:42:40.280
oftentimes what we see? State doesn't
want to take the case, but
554
00:42:40.360 --> 00:42:45.400
the military will die. You and
I today went through a record a navy
555
00:42:45.480 --> 00:42:49.840
case where they're threatening to kate take
our client to court martial if he turns
556
00:42:49.880 --> 00:42:52.199
down his N J P, which
should tell you everything you know about the
557
00:42:52.199 --> 00:42:57.280
strength of the sexual assault allegation.
And the civilians wanted absolutely no part in
558
00:42:57.320 --> 00:43:00.480
it, absolutely no part in in
it whatsoever. But that is the world
559
00:43:00.519 --> 00:43:02.880
that we live in and I too
get frustrated when I hear a cry from
560
00:43:02.920 --> 00:43:07.000
more convictions. I think in sexual
assault cases. The recent data shows that
561
00:43:07.079 --> 00:43:12.719
fifty that end up in court martial
end up as convictions, and folks point
562
00:43:12.800 --> 00:43:16.239
to that as if to say that
something is broken with the system, the
563
00:43:16.320 --> 00:43:21.440
military system, that the panel members
aren't educated enough on sexual assault or the
564
00:43:21.519 --> 00:43:24.760
prosecutors aren't good enough at trying their
cases. The bottom line is is that
565
00:43:27.039 --> 00:43:29.639
a lot of these cases are just
bad. Well, they're bad. And
566
00:43:29.719 --> 00:43:31.519
when they say they're not educated enough, what they really are saying is they're
567
00:43:31.559 --> 00:43:36.719
not brainwashed. We have the brainwashing. Hasn't worked yet, right. So
568
00:43:37.239 --> 00:43:39.239
it's changing though. That and you
you wrote something. I'm sorry, this
569
00:43:39.400 --> 00:43:43.480
issue just really gets me riled up. It's just something I just can I'm
570
00:43:43.519 --> 00:43:45.960
just this. You're scaring dedre man. You need to take a deep breaths,
571
00:43:45.960 --> 00:43:50.320
getting nervous over there. But this
unanimous very thing that you mentioned.
572
00:43:50.440 --> 00:43:52.559
Seven people on your last trial.
We're all victim advocates. I see a
573
00:43:52.639 --> 00:43:58.719
world where eventually you're gonna have them. Were all victim advocates, right,
574
00:43:58.800 --> 00:44:00.360
and then what are you gonna do
with the R gonna be and I also
575
00:44:00.400 --> 00:44:06.039
see a world where the judges are
no longer going to grant the request to
576
00:44:06.199 --> 00:44:08.599
basically get them off of the panel
because of that. They're gonna rehabilitate them,
577
00:44:08.679 --> 00:44:13.199
even with the liberal grant mandate.
And and that's where we're gonna start
578
00:44:13.280 --> 00:44:17.360
seeing real problems with with folks getting
convicted who really have no business getting convicted.
579
00:44:17.400 --> 00:44:21.679
But Bill Mickey and I we can
go on and on about this.
580
00:44:22.039 --> 00:44:27.000
Um. Let's kind of shift gears
here and finish up with some lightheart,
581
00:44:27.119 --> 00:44:31.400
lighthearted chatter here. Um, yesterday
we talked a little bit about what are
582
00:44:31.480 --> 00:44:36.840
some of your best appellate stories.
I'd love to hear about some records of
583
00:44:36.920 --> 00:44:40.039
trial that you've read over the years
that either made you laugh or uh,
584
00:44:40.400 --> 00:44:44.840
you know, we're otherwise entertaining.
Give us, give us some stories from
585
00:44:44.920 --> 00:44:49.400
a guy who's probably read thousands of
pages from from from trial. Maybe.
586
00:44:51.440 --> 00:44:58.400
So the first two cases I ever
tried on appeal Um. One of the
587
00:44:58.519 --> 00:45:02.280
cases, I was a sexual salt
case that my client got um the charges
588
00:45:02.320 --> 00:45:06.280
got reversed. And the other one, and that was an army case.
589
00:45:06.360 --> 00:45:08.559
The otherman, was navy case in
which the panel members my client happened to
590
00:45:08.599 --> 00:45:14.639
be at the the oral argument and
the panel member started asking my client's questions,
591
00:45:15.199 --> 00:45:19.880
which never happens in oral argument.
And one both of those cases that
592
00:45:19.880 --> 00:45:22.119
I remember walking away going this is
easy, I'm gonna you know, I'm
593
00:45:22.119 --> 00:45:24.719
gonna win all my cases a field. This is easy. Stop, and
594
00:45:25.559 --> 00:45:30.280
unfortunately it's not that way. You
know, we were talking about a certain
595
00:45:30.320 --> 00:45:35.840
individual who shall remain nameless. Earlier
when that person was on a court of
596
00:45:35.880 --> 00:45:39.119
Appeals. Um, one of the
other judges that was on the ACCA at
597
00:45:39.159 --> 00:45:45.440
the time had been a boss of
mine and I was a little bit too
598
00:45:45.559 --> 00:45:50.119
casual in my addressing of the now
judge who has been my boss, and
599
00:45:50.599 --> 00:45:54.639
the other judge to senior judge,
who is um again to remain nameless,
600
00:45:55.199 --> 00:45:59.599
just tore into me as if I
were, you know, the antique thing,
601
00:46:00.320 --> 00:46:02.039
Um, and I remembered somebody as
I walked away, going Jesus,
602
00:46:02.079 --> 00:46:06.920
you're sleeping with judge so and so's
daughter. I have no idea why you
603
00:46:07.159 --> 00:46:10.039
so mad at me. You know, Um and and you know, but
604
00:46:10.440 --> 00:46:14.559
you know, I will say that
over the years I've gotten to know most
605
00:46:14.639 --> 00:46:17.360
of the apellate judges, certainly on
the army side, and at calf reasonably
606
00:46:17.400 --> 00:46:22.519
well. Um, you know,
I'd like to think that the firm has
607
00:46:22.519 --> 00:46:27.440
a pretty good reputation, but Um, you know, my funniest moment ever
608
00:46:27.760 --> 00:46:32.400
oral argument is well, I was
arguing a case at calf and a government
609
00:46:32.480 --> 00:46:36.199
prosectut this is one of the few
times when a government attorney was on the
610
00:46:36.280 --> 00:46:40.559
receiving end. The government attorney started
to make an argument that just wasn't going
611
00:46:40.679 --> 00:46:45.079
over well with Judge Ryan who has
just recently come off the bank. And
612
00:46:45.199 --> 00:46:49.760
Judge Ryant stops and says, captain, are you telling me that that is
613
00:46:49.840 --> 00:46:54.320
the official position of the Air Force
and the Department of Defense? And he
614
00:46:54.480 --> 00:46:58.440
says yes, ma'am, and she
says, you know what, I don't
615
00:46:58.480 --> 00:47:00.760
think it is, and you're going
to take about a two minute break and
616
00:47:00.840 --> 00:47:04.679
talk to your boss and make sure
that that's what really what you want to
617
00:47:04.760 --> 00:47:09.360
say. Now as the as a
defense lawyer, I'm loving this because,
618
00:47:09.440 --> 00:47:12.960
you know, I know the arguments
going my well, but by way.
619
00:47:13.000 --> 00:47:16.840
But I also felt how bad I
felt for that guy for those two minutes
620
00:47:16.920 --> 00:47:19.920
of his life, you know,
and then having to come back and going
621
00:47:20.000 --> 00:47:22.760
okay, no, that's not our
position, and you're like no, I
622
00:47:22.840 --> 00:47:29.760
didn't think so. Yeah, I've
seen. No, no, go ahead,
623
00:47:29.800 --> 00:47:34.320
go ahead, go ahead. I
was gonna say oral argument. You
624
00:47:34.400 --> 00:47:37.760
know, when I taught oral argument
at Law School Um, and I've started
625
00:47:37.800 --> 00:47:42.639
at two different law schools when I've
taught oral arguments the men. Thing I
626
00:47:43.039 --> 00:47:47.559
tell people is just have fun because
if you're if you're not, the judges
627
00:47:47.599 --> 00:47:53.639
will smell blood and they're going to
jump all over it. So you know
628
00:47:54.320 --> 00:47:58.079
it's best to be a little wide
hearted and have a little bit of fun
629
00:47:58.239 --> 00:48:01.880
and to and you know, uh
and Um, otherwise that it's going to
630
00:48:01.960 --> 00:48:07.719
be a very unpleasant thirty minute presentation
for you. I think that's great advice,
631
00:48:07.800 --> 00:48:09.400
Bill and and uh, I see
the same thing at the trial level.
632
00:48:09.480 --> 00:48:13.039
I you know, we obviously work
with a lot of military council and
633
00:48:13.079 --> 00:48:15.119
a lot of them are wonderful,
but my goodness they can be very,
634
00:48:15.400 --> 00:48:20.800
uh, very, very nervous,
almost scared to address the judge and sometimes
635
00:48:20.840 --> 00:48:22.920
you just gotta laugh at yourself and
show confidence and when you do that the
636
00:48:23.000 --> 00:48:27.199
judge is gonna leave you alone for
the most part. Um. I think
637
00:48:27.239 --> 00:48:30.199
that's just excellent advice, not only
for older argument at a pellet level,
638
00:48:30.239 --> 00:48:34.559
but also for trial, because you
know this bill as well as anybody does,
639
00:48:34.599 --> 00:48:37.159
and I tell the folks in my
office this all the time. You
640
00:48:37.239 --> 00:48:39.679
can't avoid making mistakes and trial you're
gonna say something you regret, you're gonna
641
00:48:39.719 --> 00:48:44.880
do something you regret and you got
to just keep pressing forward and hope that
642
00:48:44.960 --> 00:48:47.760
the jury is with you, because
you're never gonna be perfect when when you're
643
00:48:47.800 --> 00:48:52.840
on that floor litigating those issues.
You know, I remember arguing or when
644
00:48:52.880 --> 00:48:55.679
I was doing trial work. I
had a case but I want to appeal
645
00:48:57.360 --> 00:49:00.679
Um and on the rehearing for sentencing, the judge was like, okay,
646
00:49:00.840 --> 00:49:04.920
we'll number one. Nobody's gonna know
that this guy got a dismissal from the
647
00:49:05.000 --> 00:49:08.840
first panel. And during my closing
argument I mentioned that he got in a
648
00:49:08.880 --> 00:49:14.360
dismissal at the first trial. I
remember just freezing and, you know,
649
00:49:14.519 --> 00:49:15.800
the judge, looking at the judge
and she just gave me a look like
650
00:49:15.960 --> 00:49:20.559
just keep moving, and I just
kept moving and my client did not get
651
00:49:20.599 --> 00:49:24.079
a dismissal at the rehearing. So
very good, very good. That's that's
652
00:49:24.480 --> 00:49:29.480
that's my favorite story, Bill.
I like hearing these stories about folks who
653
00:49:29.559 --> 00:49:30.559
make these mistakes. Then you deal
with it, you move on. You
654
00:49:30.599 --> 00:49:35.440
know, you got to just move
forward. I mean, I've made I've
655
00:49:35.519 --> 00:49:38.679
said things. Luckily I always was
able to get a laugh out of it.
656
00:49:38.840 --> 00:49:42.639
If I make a mistake, usually
I haven't done anything. I haven't
657
00:49:42.639 --> 00:49:45.119
stepped on a huge grenade or a
landmine yet. But anyway, all right.
658
00:49:45.159 --> 00:49:47.480
Well, before you close out,
I one time stood up to give
659
00:49:47.480 --> 00:49:52.639
a closing argument in a packed Court
House with a senior client in a sexual
660
00:49:52.639 --> 00:49:58.559
assault case and I tripped over the
wire to like somebody's computer, and then
661
00:49:58.559 --> 00:50:02.199
you should have stood up and said
Tessica from its case right there. I
662
00:50:02.360 --> 00:50:06.679
laughed, you know, I laughed
at myself and the jury kind of laughed
663
00:50:06.719 --> 00:50:08.239
too, and that's what you gotta
do sometimes. You gotta laugh at Yourself.
664
00:50:08.280 --> 00:50:12.400
something. My favorite I know we're
closing out here, but my one
665
00:50:12.400 --> 00:50:15.159
of my favorite stories about rob is
he hadn't been out of the army all
666
00:50:15.239 --> 00:50:19.719
that long and he was trying to
give a phonetic answer. So you know
667
00:50:19.800 --> 00:50:27.360
the phonetic alphabet in in the Charlie, you know, and uh, the
668
00:50:27.960 --> 00:50:34.480
phonetic letter for H is hotel,
right, and the judge, Judge Watkins
669
00:50:34.760 --> 00:50:40.440
Fort Sill, I'm walking around saying
Halo instead of hotel and UH yeah,
670
00:50:40.599 --> 00:50:45.000
and walking stops me and he's like, Mr Capa Villa, do you mean
671
00:50:45.159 --> 00:50:50.079
hotel, because we're all confused.
Yes, your hotel, Um, but
672
00:50:50.199 --> 00:50:52.920
I like Judge Watkins. He Sho
to show up and his Harley with,
673
00:50:52.519 --> 00:50:54.679
yeah, with a marlborow in his
mouth. He was. He was a
674
00:50:54.719 --> 00:50:58.880
great judge. You know. He's
incredible shape too. Like the guy was
675
00:50:59.400 --> 00:51:01.519
kind of Jack. Always thought,
I don't know, I never noticed he
676
00:51:01.559 --> 00:51:04.840
was wearing a robe at the time
I was with him making well when he
677
00:51:04.920 --> 00:51:09.119
got this Harley, but you get
on his Harley outside and and be wearing
678
00:51:09.199 --> 00:51:12.840
like his the leather jacket or whatever
it was like, man, that guy
679
00:51:12.960 --> 00:51:15.159
looks pretty tough. Um. All
right, all right, enough enough said
680
00:51:15.199 --> 00:51:19.079
there. Well, Bill, thank
you so much for coming on, Um,
681
00:51:19.519 --> 00:51:22.360
and we'd love to have you back
on some time to talk more about
682
00:51:22.400 --> 00:51:24.039
you. Just you just our wealth
of knowledge and we do appreciate it.
683
00:51:24.360 --> 00:51:28.679
I know rob does. Absolutely absolutely. Thank you, Bill, Um,
684
00:51:29.079 --> 00:51:31.360
and again you're oh good. Thank
you, Um. I'm glad. I'm
685
00:51:31.360 --> 00:51:34.920
glad you had a good time and
you're at the law firm of William e
686
00:51:35.039 --> 00:51:39.480
Cassara pc there in Augusta, Georgia, right your your website is www dot
687
00:51:39.599 --> 00:51:44.159
court martial dot com. And again, that's Bill Cassara, the best of
688
00:51:44.199 --> 00:51:46.519
pellet man in in out there period
and the best pellet law firm out there
689
00:51:46.559 --> 00:51:50.199
period for military appeals. So I
had, like I said, I've known
690
00:51:50.400 --> 00:51:52.800
I've known bill for, uh,
I don't know, a few years now,
691
00:51:52.920 --> 00:51:57.599
but I've heard of him for over
a decade, from even back when
692
00:51:57.639 --> 00:52:00.760
I was in the Jag court,
just because he's so well known and so
693
00:52:00.920 --> 00:52:04.159
well renowned. But any anyway,
thank you bill so much for coming on.
694
00:52:04.760 --> 00:52:07.880
Um. That's it for us.
Uh. This is Mickey Williams,
695
00:52:07.400 --> 00:52:13.239
Robert Capavilla and Dedre deedre Alexander sign
it off. Thank you, everybody.
696
00:52:14.559 --> 00:52:19.559
Thanks for listening to the military justice
today podcast with your host, Robert Capa
697
00:52:19.639 --> 00:52:22.519
Villa and Mickey Williams. This show
was made possible in part by the law
698
00:52:22.639 --> 00:52:27.679
firm of Capa Villa and Williams.
For more information or to listen to more
699
00:52:27.719 --> 00:52:30.760
episodes, visit military justice today DOT
com.
