The Court of Appeals for the Armed Forces (CAAF) recently decided the case of United States v. Palik. TSgt Palik was court-martialed over several charges involving domestic assault of his girlfriend, a fellow Airman. He was convicted of two specifications of assault consummated by a battery and one specification of domestic violence by strangulation. He was sentenced to be confined for 10 months, reduction to E-1, forfeitures of all pay and allowances, and a bad conduct discharge from the United States Air Force.
On appeal, TSgt Palik’s attorneys argued that his trial defense counsel were ineffective in their representation because they failed to raise a motion under Rule for Courts-Martial (RCM) 914. This rule allows a party at trial to request any statements made by a witness regarding their testimony to be turned over. Procedurally, this rule kicks in once the witness has testified on direct examination. The opposing party then makes the motion to the judge, who requires the statements to be turned over before any cross-examination begins. If the party calling the witness cannot or does not comply, the version of the rule that was in place when TSgt Palik’s case went to trial required the military judge to either strike the testimony of the witness or to declare a mistrial.
In TSgt Palik’s case, his former girlfriend had been interviewed by OSI twice when she reported the alleged assaults. Both of these interviews were recorded. The OSI agent who was assigned to lead the investigation was new and unaware that if she did not download the videos from the recording system within a certain timeframe that they would be overwritten. Two months after the interviews, the agent discovered that the recordings had been overwritten and were no longer available.
At trial, the agent testified to the loss of the recorded statements. Yet, after TSgt Palik’s former girlfriend testified, the defense did not raise a motion under RCM 914. Had they done so, the Government would have been unable to provide the deleted statements and the military judge would have had to strike her testimony and likely order a mistrial. The Air Force Court of Criminal Appeals (AFCCA) heard the issue first, but decided that TSgt Palik had not shown that the failure to make the motion was a deficient performance.
TSgt Palik then turned to CAAF with the same argument. The majority of CAAF found that the trial defense counsel were ineffective because they did not raise the RCM 914 issue at trial after the alleged victim testified on direct. The court determined that the outcome of the case would have been different had the defense counsel made the motion. CAAF set the findings and sentence aside. Although a rehearing is authorized, the Government will face the same RCM 914 issue if they try to retry the case. Unless they can somehow recover the recordings, any future trial proceedings are unlikely.
If you or your loved one is facing a court-martial or wants to appeal a court-martial conviction, you need someone with experience who knows the law. I have the experience you need. Please call Bill Cassara at (706) 445-2943 for a free consultation.