Petition for Writ of Certiorari — Daniel A. Bench, Petitioner v. United States

No. ____

IN THE

Supreme Court of the United States

__________

DANIEL A. BENCH,

Petitioner,

v.

UNITED STATES,

Respondent.

__________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Armed Forces

__________

PETITION FOR A WRIT OF CERTIORARI

__________

ALEXANDRA K. FLESZAR

Counsel of Record

HEATHER M. CAINE

Appellate Defense Counsel

Air Force Appellate Defense Division

1500 West Perimeter Road, Suite 1100

Joint Base Andrews, MD 20762

(240) 612-4770

alexandra.fleszar.1@us.af.mil

Counsel for Petitioner

QUESTION PRESENTED

Petitioner was tried before a general court-martial

for, inter alia, sexually abusing his autistic son.

During the son’s live remote testimony, he expressed

concerns over testifying against his father. The

prosecutor responded—without objection—by falsely

stating that Petitioner was not then present in the

courtroom.

On appeal, Petitioner alleged the prosecutor’s lie

constituted misconduct that prejudiced his Sixth

Amendment right to confrontation. Reviewing the

issue for plain error, the Court of Appeals for the

Armed Forces (CAAF) found the matter to be one of

first impression, in that no court has held that the

Sixth Amendment requires a child testifying remotely

to be aware that the defendant is viewing their

testimony. Consequently, the CAAF found no plain or

obvious error. The CAAF never addressed prejudice

nor prosecutorial misconduct.

The Question Presented is:

Does a prosecutor’s in-court lie to secure a

witness’s testimony constitute misconduct that

materially prejudices an accused’s Sixth

Amendment right to confrontation or other

substantial right?

i

RELATED PROCEEDINGS

United States Air Force Court of Criminal Appeals:

United States v. Bench, No. ACM 39797 (May 24,

2020)

United States Court of Appeals for the Armed

Forces:

United States v. Bench, 82 M.J. 388 (C.A.A.F.

2021)

ii

TABLE OF CONTENTS

QUESTION PRESENTED .................................................. i

RELATED PROCEEDINGS ............................................... ii

TABLE OF CONTENTS ................................................... iii

TABLE OF AUTHORITIES ................................................ v

PETITION FOR A WRIT OF CERTIORARI .......................... 1

OPINIONS BELOW ......................................................... 1

JURISDICTION ............................................................... 1

CONSTITUTIONAL PROVISION INVOLVED....................... 1

STATEMENT OF THE CASE ............................................. 2

A. Legal Background ....................................... 2

1. The Sixth Amendment ........................... 2

2. Prosecutorial Misconduct ...................... 6

B. Procedural and Factual Background ......... 8

REASONS FOR GRANTING THE PETITION ..................... 15

A. Lying to a witness about an accused’s

presence makes the testimony less

reliable, thus violating the Sixth

Amendment’s right to confrontation. ....... 16

B. Assuming Craig still applies, it does

not broadly permit all remote

testimony by child witnesses, and

certainly

not

under

the

circumstances

by

which

the

prosecutor procured EC’s testimony. ....... 22

iii

C. In declining to address prosecutorial

misconduct, the CAAF contravened

its own precedent and created an

ethical disparity between military

and civilian prosecutors............................ 24

CONCLUSION .............................................................. 27

APPENDIX ........................................................ 1a

United States v. Bench

United States Court of Appeals

for the Armed Forces, Opinion

(Aug. 8, 2022) ................................................. 3a

United States v. Bench,

United States Court of Appeals

for the Armed Forces, Order

(Nov. 30, 2021) ............................................. 20a

United States v. Bench,

United States Air Force

Court of Criminal Appeals, Opinion

(May 24, 2021) .............................................. 22a

United States v. Bench

Trial Transcript

Testimony of MC ...................................... 67a

United States v. Bench

Trial Transcript

Testimony of EC ....................................... 71a

iv

TABLE OF AUTHORITIES

Cases

Berger v. United States,

295 U.S. 78 (1935) ............................................. 6, 24

California v. Green,

399 U.S. 149 (1970) ............................... 2, 16, 20, 21

Chapman v. California,

386 U.S. 18 (1967) ................................................... 8

Coronado v. State,

351 S.W.3d 315 (Tex. Crim. App. 2011) ................. 5

Coy v. Iowa,

487 U.S. 1012 (1988) ...................... 2, 3, 8, 17-19, 21

Crawford v. Washington,

541 U.S. 36 (2004) ..........................................passim

Davis v. Zant,

36 F.3d 1538 (11th Cir. 1994) ............................. 6, 8

Delaware v. Fensterer,

474 U.S. 15 (1985) ........................................... 19, 20

Donnelly v. DeChristoforo,

416 U.S. 637 (1974) ................................................. 8

Greer v. Miller,

483 U.S. 756 (1987) ................................................. 8

Hemphill v. New York,

142 S. Ct. 681 (2022) (slip op.) .......................... 4, 23

Maryland v. Craig,

497 U.S. 386 (1990) ........................................passim

Ohio v. Roberts,

448 U.S. 56 (1980) ................................................ 3-5

v

Ortiz v. United States,

138 S. Ct. 2165 (2018) ........................................... 26

People v. Jemison,

505 Mich. 352 (2020) ......................................... 5, 23

Pointer v. Texas,

380 U.S. 400 (1965) ........................................... 2, 17

State v. Mercier,

403 Mont. 34 (2021) ................................................ 5

United States v. Andrews,

77 M.J. 393 (C.A.A.F. 2018) ............................ 25, 26

United States v. Bench,

2021 CCA LEXIS 306 (A.F. Ct. Crim.

App. May 24, 2021) ................................................. 1

United States v. Bench,

82 M.J. 388 (C.A.A.F. 2022) .................................... 1

United States v. Bowser,

73 M.J. 889 (A.F. Ct. Crim. App.

2014) ................................................................ 24, 25

United States v. Carter,

907 F.3d 1199 (9th Cir. 2018) ................................. 4

United States v. Daulton,

45 M.J. 212 (C.A.A.F. 1996) .................................... 8

United States v. Della Universita,

298 F.2d 365 (2d Cir. 1962)..................................... 6

United States v. Fletcher,

62 M.J. 175 (C.A.A.F. 2005) .................................. 25

United States v. Golston,

53 M.J. 61 (C.A.A.F. 2000) .................................... 24

United States v. Hamilton,

41 M.J. 22 (C.A.A.F. 1994) .................................... 24

vi

United States v. Hasting,

461 U.S. 499 (1983) ................................................. 8

United States v. Meek,

44 M.J. 1 (C.A.A.F. 1996) ........................ 7, 8, 24, 25

United States v. Morrison,

449 U.S. 361 (1981) ................................................. 8

United States v. Pack,

65 M.J. 381 (2007) ................................................... 5

United States v. Quintanilla,

63 M.J. 29 (C.A.A.F. 2006) .................................... 24

United States v. Rushatz,

31 M.J. 450 (CMA 1990) ......................................... 8

United States v. Tovarchavez,

78 M.J. 458 (C.A.A.F. 2019) .................................... 8

United States v. Washington,

63 M.J. 418 (C.A.A.F. 2006) .................................. 17

Constitutional Provision

U.S. CONST. amend. VI ......................................passim

Statutes and Regulations

10 U.S.C. § 867a (2016) .............................................. 1

28 U.S.C. § 1259(3) (2021) .......................................... 1

Other Authorities

American Bar Association,

MODEL RULES FOR PROF'L CONDUCT

(1989) ..................................................................... 24

STANDARDS FOR CRIMINAL JUSTICE,

Prosecution Function (4th ed. 2017)..... 6, 22, 24, 26

vii

Air Force Instruction 51-201,

Administration of Military Justice

(Apr. 14, 2022) ................................................... 7, 24

Air Force Instruction 51-110,

Attachment 2, Air Force Rules of

Professional Conduct (December 11,

2018) .................................................................. 7, 24

Attachment 7, Air Force Standards

for Criminal Justice, Prosecution

Function (December 11, 2018) .................... 7, 24, 25

viii

PETITION FOR A WRIT OF CERTIORARI

Petitioner respectfully petitions for a writ of

certiorari to review the judgment of the United States

Court of Appeals for the Armed Forces (CAAF).

OPINIONS BELOW

The opinion in United States v. Bench from the

United States Air Force Court of Criminal Appeals

(AFCCA) is not reported, but is available at 2021 CCA

LEXIS 306 (A.F. Ct. Crim. App. May 24, 2021). It is

reproduced in the Appendix at Pet. App. 22a. The

CAAF’s affirmation is published at 82 M.J. 388

(C.A.A.F. 2022) and is reproduced in the Appendix at

Pet. App. 3a.

JURISDICTION

The CAAF granted review of Petitioner’s direct

appeal on November 30, 2021. Pet. App. 20a. The

CAAF subsequently affirmed the AFCCA’s decision on

August 8, 2022. Pet. App. 3a. On November 1, 2022

the Chief Justice extended the time to file a petition

for a writ of certiorari to December 7, 2022. This

Court’s jurisdiction over the case emanates from

Article 67a, Uniform Code of Military Justice (UCMJ),

10 U.S.C. § 867a, and 28 U.S.C. § 1259(3).

CONSTITUTIONAL PROVISION INVOLVED

The Sixth Amendment to the United States

Constitution provides, in pertinent part, that “[i]n all

criminal prosecutions, the accused shall enjoy the

right . . . to be confronted by the witnesses against him

. . . .” U.S. CONST. amend. VI.

1

STATEMENT OF THE CASE

A. Legal Background

1. The Sixth Amendment

The Sixth Amendment to the United States

Constitution guarantees that “[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to

be confronted by the witnesses against him . . . .” U.S.

CONST. amend. VI. “The fact that this right appears

in the Sixth Amendment of our Bill of Rights reflects

the belief of the Framers of those liberties and

safeguards that confrontation was a fundamental

right essential to a fair trial in a criminal

prosecution.” Pointer v. Texas, 380 U.S. 400, 404

(1965). “The Confrontation Clause was meant to

constitutionalize a barrier against flagrant abuses,

trials by anonymous accusers, and absentee

witnesses.” California v. Green, 399 U.S. 149, 179

(1970) (Harlan, J. concurring).

In Coy v. Iowa, this Court determined that

allowing two minor witnesses in a sexual assault case

to testify from behind a screen, which blocked their

view of the defendant, violated his Sixth Amendment

right to confrontation. 487 U.S. 1012 (1988). Writing

for the majority, Justice Scalia observed how the

Supreme Court had “never doubted . . . that the

Confrontation Clause guarantees the defendant a

face-to-face meeting with witnesses appearing before

the trier of fact.” Id. at 1016. This was in part because

“[a] witness may feel quite differently when he has to

repeat his story looking at the man whom he will

harm greatly by distorting or mistaking the facts.” Id.

at 1019 (citation and internal quotations omitted).

The majority added that “[i]t is always more difficult

2

to tell a lie about a person ‘to his face’ than ‘behind his

back.’ In the former context, even if the lie is told, it

will often be told less convincingly.” Id.

Two years later, in Maryland v. Craig, a fivejustice majority of this Court held a state statute

permitting a child victim to testify via one-way,

closed-circuit television did not violate the

Confrontation Clause. 497 U.S. 836 (1990). Relying

upon the “indicia of reliability” rubric set forth in Ohio

v. Roberts, 448 U.S. 56, 66 (1980), the Court

determined “that a defendant’s right to confront

accusatory witnesses may be satisfied absent a

physical, face-to-face confrontation at trial only where

denial of such confrontation is necessary to further an

important public policy and only where the reliability

of the testimony is otherwise assured.” Id. at 850

(citations omitted). Finding the procedure at issue

“preserve[d] all of the other elements of the

confrontation right[,]” specifically oath, crossexamination, and observation of the witness’s

demeanor, id. at 851, the Court concluded “the

Confrontation Clause does not prohibit use of a

procedure that, despite the absence of face-to-face

confrontation, ensures the reliability of the evidence

by subjecting it to rigorous adversarial testing and

thereby preserves the essence of effective

confrontation.” 1 Id. at 857.

1 Justice Scalia, authoring a dissent on behalf of himself and

three others, expressed particularized concern that Craig’s

holding would permit an estranged parent who had lost custody

of a child to be sentenced for sexual abuse without “so much as

the opportunity to sit in the presence of the child” and to question

whether the allegations were indeed true. Id. at 861.

3

Fourteen years after Craig, this Court overruled

Roberts in Crawford v. Washington. 541 U.S. 36

(2004). Returning to the formal, textual and historical

guarantee of the Confrontation Clause, this Court

barred the state from introducing tape-recorded

statements made by a witness to law enforcement in

a stabbing case, when the witness did not appear at

trial and the defendant had no opportunity for crossexamination. Id. at 68-70. In casting aside Roberts,

the Crawford Court reasoned:

Admitting statements deemed reliable

by a judge is fundamentally at odds with

the right of confrontation. To be sure,

the Clause’s ultimate goal is to ensure

reliability of evidence, but it is a

procedural rather than a substantive

guarantee.

It commands, not that

evidence be reliable, but that reliability

be assessed in a particular manner: by

testing in the crucible of crossexamination.

Id. at 61. Although Crawford did not likewise

overrule Craig, this Court has since emphasized that

the case marked an “emphatic rejection of the

reliability-based approach of Ohio v. Roberts.”

Hemphill v. New York, __ U.S. __, 142 S. Ct. 681, 691

(2022) (slip op.).

In interpreting this Court’s Sixth Amendment

jurisprudence, federal and state appellate courts have

wrestled with Craig’s precedential value in light of

Crawford. See, e.g., United States v. Carter, 907 F.3d

1199, 1206 n. 3 (9th Cir. 2018) (suggesting that “[t]he

vitality of Craig itself is questionable in light of the

Supreme Court’s later decision in Crawford, which

4

abrogated Roberts, a case relied upon heavily in

Craig” and that “Craig and Crawford stand in

‘marked contrast’ in several respects . . .”); People v.

Jemison, 505 Mich. 352, 356 (2020) (noting that

“Crawford did not specifically overrule Craig, but it

took out its legs”); State v. Mercier, 403 Mont. 34, 4446 (2021) (questioning “Craig’s continuing utility” in

light of a circuit split over its extension to two-way

video procedures and this Court’s decision in

Crawford; expressing that it was “not prepared to

declare the proverbial death knell to Craig just yet . .

. prefer[ring] to await further direction from the

Supreme Court.”); Coronado v. State, 351 S.W.3d 315,

321 (Tex. Crim. App. 2011) (observing that this Court

“has never overturned the holding in Craig, but,

beginning with Crawford v. Washington, [ ] has

nibbled it into Swiss cheese by repeating the

categorical nature of the right to confrontation in

every one of its more recent cases.”) (footnotes with

citations omitted). To reconcile these cases, one court

recently “read Craig’s holding according to its narrow

facts.” Jemison, 505 Mich. at 356 (footnote with

citations omitted).

The CAAF has similarly acknowledged “that

aspects of Crawford are difficult to reconcile with

aspects of Craig.” United States v. Pack, 65 M.J. 381,

381 (2007). It repeated this refrain in the present

case, but reiterated its “unequivocal” belief that

“‘Craig continues to control the questions of whether,

when, and how, remote testimony by a child witness

in a criminal trial is constitutional.’” Pet. App. 15a

(quoting Pack, 65 M.J. at 385).

5

2. Prosecutorial Misconduct

Civilian prosecutors have unique professional

duties and responsibilities. A prosecutor “is the

representative not of an ordinary party to a

controversy, but of a sovereignty whose obligation to

govern impartially is as compelling as its obligation to

govern at all; and whose interest, therefore, in a

criminal prosecution is not that it shall win a case, but

that justice shall be done.” Berger v. United States,

295 U.S. 78, 88 (1935). Consequently, while a

prosecutor “may strike hard blows, he is not at liberty

to strike foul ones.” Id.

To this end, “[t]he prosecution has a special duty

not to mislead” and such government officials “should,

of course, never make affirmative statements contrary

to what [they know] to be the truth.” United States v.

Della Universita, 298 F.2d 365, 367 (2d Cir. 1962); see

also Davis v. Zant, 36 F.3d 1538, 1548 (11th Cir. 1994)

(“Little time and no discussion is necessary to

conclude that it is improper for a prosecutor to use

misstatements and falsehoods.”) (footnote with

citations omitted). Indeed, “the prosecutor has a

heightened duty of candor to the courts and in

fulfilling other professional obligations.” American

Bar Association (ABA) STANDARDS FOR CRIMINAL

JUSTICE, Prosecution Function (hereinafter SCJ),

Standard 3-1.4(a) (4th ed. 2017). A prosecutor is thus

proscribed from “mak[ing] a statement of fact or law,

or offer[ing] evidence, that the prosecutor does not

reasonably believe to be true, to a court, lawyer,

witness, or third party[.]” SCJ, Standard 3-1.4(b).

An Air Force prosecutor’s obligations largely

mirror those of his civilian counterparts.

For

example, the duty of an Air Force prosecutor “is to

6

seek justice, not merely to convict.” Air Force

Instruction (AFI) 51-110, Attachment 7, Air Force

Standards for Criminal Justice, Prosecution Function

(hereinafter AFSCJ), Standard 3-1.2(c) (December 11,

2018). These Airmen must also “know and be guided

by the standards applicable to military counsel by the

[UCMJ], Manual for Courts-Martial (MCM), AFI 51201, Administration of Military Justice; and the Air

Force Rules of Professional Conduct 2[.]” AFSCJ,

Standard 3-1.2(d). Accordingly, they are prohibited

from “knowingly mak[ing] a false statement of fact or

law to a tribunal or fail[ing] to correct a false

statement of material fact or law previously made to

the tribunal by the lawyer.” ARPC, R. 3.3(a). It is

professional misconduct for a prosecutor, as it is for

any Air Force attorney, “to engage in conduct

involving

dishonesty,

fraud,

deceit,

or

misrepresentation[.]” ARPC, R. 8.4(c). And “[i]n the

course of representing a client, a lawyer shall not

knowingly . . . make a false statement of material fact

or law to a third person[.]” ARPC, R. 4.1(a).

Consistent with these rules, the CAAF has long

defined prosecutorial misconduct “as action or

inaction by a prosecutor in violation of some legal

norm or standard, e.g., a constitutional provision, a

statute, a Manual [for Courts-Martial] rule, or an

applicable professional ethics canon.” United States v.

Meek, 44 M.J. 1, 5 (C.A.A.F. 1996) (citations omitted).

Akin to the civilian judiciary, however, the CAAF has

concluded that the characterization of certain conduct

as “prosecutorial misconduct . . . does not in itself

mandate dismissal of charges against an accused or

2 AFI 51-110, Attachment 2, Air Force Rules of Professional

Conduct (ARPC), (Dec. 11, 2018).

7

ordering a rehearing in every case where it has

occurred.” Id. (citing Greer v. Miller, 483 U.S. 756, 765

(1987); Donnelly v. DeChristoforo, 416 U.S. 637, 643

(1974)) (quotation marks omitted). Rather, the CAAF

requires military appellate courts to consider the legal

norm violated by the prosecutor and determine

whether it “actually impacted on a substantial right of

an accused (i.e., resulted in prejudice).” Id. (citing

United States v. Hasting, 461 U.S. 499 (1983); United

States v. Morrison, 449 U.S. 361 (1981); United States

v. Rushatz, 31 M.J. 450 (CMA 1990)) (emphasis in

original). If so, then the reviewing court must still

consider “the trial record as a whole to determine

whether such a right’s violation was harmless under

all the facts of a particular case.” Id. (citing Morrison,

449 U.S. at 365; Zant, 36 F.3d at 1546).

When assessing this latter prong, the nature of the

violated right controls how to determine this impact.

For plain or obvious constitutional errors, the CAAF

has required the Government to prove the error

harmless beyond a reasonable doubt. United States v.

Tovarchavez, 78 M.J. 458, 460 (C.A.A.F. 2019) (citing

Chapman v. California, 386 U.S. 18 (1967)). When

this error prejudices the Sixth Amendment’s right to

confrontation, harmlessness is assessed based on the

remaining evidence introduced at trial. United States

v. Daulton, 45 M.J. 212, 219-20 (C.A.A.F. 1996) (citing

Coy, 487 U.S. at 1022).

B. Procedural and Factual Background

At the time of his court-martial, Petitioner had

served in the military for approximately twenty-two

years. Pet. App. 61a. In 2006, Petitioner met and

8

married MC, 3 who was an enlisted member in the

United States Air Force Reserve Corps. Pet. App. 25a.

Petitioner had one daughter from a prior relationship

and, in 2010, welcomed fraternal twins (EC 4 and BC)

with MC. Pet. App. 25a-26a.

At the age of two, EC was diagnosed with autism

that affected his speech and motor skills. Pet. App.

54a, 69a-70a. When EC became overstimulated, he

would engage in repetitive movements such as

flapping his arms and running back and forth

repeatedly. Pet. App. 54a, 69a.

Three years after the twins were born, MC and

Petitioner separated, divorcing in 2014. Pet. App.

25a-26a. Initially, the parents shared joint legal

custody of their children. Id. These arrangements

later turned contested, and the allegations against

Petitioner of sexually abusing the twins arose amidst

the custody dispute. Pet. App. 26a, 28a-31a, 53a.

Prior

to

Petitioner’s

court-martial,

the

Government requested EC be permitted to testify

remotely by video teleconference. Pet. App. 5a-6a.

The Government contended that the now nine-yearold would “be traumatized without remote testimony

because of the physical and verbal indications of his

fear of [Petitioner] and that [Petitioner] will find out

he has told their ‘secret.’” Id. (citation omitted).

Without a Defense objection, the military judge

granted the request. Id.

3 Consistent with the courts below, this brief refers to MC by her

initials, though she is not a minor. Pet. App. 25a.

At trial, EC’s initials were EB. Consistent with the courts

below, this brief refers to EC by his current initials. Pet. App.

5a.

4

9

During EC’s subsequent remote testimony, only

the prosecutor, 5 defense counsel (DC), and special

victims’ counsel (SVC) were present in the room with

him. Pet. App. 6a. Though a livestream video

teleconference device was utilized, paper had been

placed over the screen to block EC’s view of the

courtroom. Pet. App. 6a.

From the outset of EC’s appearance, he repeatedly

asked the prosecutor questions about the trial

procedures and who could hear his testimony. Id. He

almost immediately became distracted by the paper

and asked the prosecutor why the screen was covered.

Id. This led to the following exchange:

[EC:] Are there people in there?

[TC:] No, not so many.

[EC:] What?

[TC:] Nope, you just have to worry about us

right here, okay? So you’ve got me, and [the

SVC], and [the DC]. And so we’re just—

[EC:] —But are they going to—but are there

going to be people—

[TC:] —No, just the three of us right here,

and we’re going to ask you some questions,

and then you’ll be all done and you can go—

go back outside, okay?

5 In the military, a prosecutor is called a “trial counsel.”

The

prosecutor in this case was a senior-level prosecutor known as a

“circuit trial counsel.” The CAAF’s opinion uses the abbreviation

“TC” to refer to this prosecutor, whereas the record of trial uses

“CTC.”

10

Pet. App. 6a-7a (emphasis in original).

The prosecutor then attempted to ensure EC knew

the difference between the truth and a lie. For

example, she asked him four times for his current age

before he answered “nine.” Pet. App. 72a-73a. She

next tried to verify the color of EC’s shirt, which began

a protracted colloquy that included EC asserting how

“[b]oys cannot wear dresses” and that he did not like

yellow shirts. Pet. App. 73a-75a. Finally, after the

prosecutor asked EC eight times whether his shirt

was yellow, the boy answered that it was not. Pet.

App. Pet. App. 73a-75a. In the follow up question, he

clarified that “a Hawaii shirt is never yellow.” Pet.

App. 75a.

Soon thereafter, as the prosecutor was still

attempting to ascertain whether EC would be able to

“tell us” the truth, id., EC again asked who could hear

his testimony:

[EC:] —What—the court can hear us?

[TC:] All you’ve got is the three people right

here.

[EC:] But why is it—I thought there were

court [sic] to hear us.

[TC:] Well, who you’ve got to hear you right

now—

[EC:] We’re just practicing?

[TC:] We’re talking through you, yeah. But

we can hear you. And we just need you

to. . . .

[EC:] But why aren’t we doing the court

thing?

11

[TC:] We are doing the court thing.

[EC:] We are?

[TC:] Yeah.

Pet. App. 7a-8a (emphasis in original).

EC’s questions about what was happening

continued until he finally asked the following question

about Petitioner:

[EC:] Is [Petitioner] going to be standing

right next to them?

[TC:] No.

[EC:] Where is he going to be standing?

[TC:] He’s not in there. He’s not there. All

you’ve got to do is answer the questions that

we have, okay?

[EC:] Um-huh.

Pet. App. 8a-9a (emphasis in original). Neither the

defense counsel nor the military judge interjected.

Pet. App. 9a. The prosecutor followed this exchange

by referencing her earlier questions about EC’s shirt,

asking if he would promise to “only tell us stuff that’s

true.” Pet. App. 78a. EC responded “Um-huh,” but

added that his mother was afraid people would believe

Petitioner. Id. EC then confirmed that he did not

want Petitioner to find out what he said. Id. After

this, EC began to discuss the substantive allegations,

accusing both Petitioner and “[e]veryone in [his]

[e]lementary [school]” of sexually abusing him. Pet.

App. 79a-81a. After again expressing reticence about

others knowing what he was saying, the prosecutor

told EC “I promise [DC] . . . and [SVC] and I won’t tell

anybody else what you us” [sic]. Pet. App. 81a-82a.

12

After EC’s direct examination, the defense counsel

conducted a cross-examination. Pet. App. 9a. The

defense counsel never informed EC of Petitioner’s

presence nor did he correct any of the prosecutor’s

false statements. Id.

A panel of officer members ultimately found

Petitioner guilty of one charge and specification of

indecent conduct, and one charge and two

specifications of sexual abuse of a child—one of which

related to EC and one to BC. Pet. App. 5a, 9a. The

members acquitted Petitioner of a separate allegation

of sexual abuse against EC. See Pet. App. 24a. The

members sentenced Petitioner to twelve years’

confinement, reduction to the grade of E-4, forfeiture

of all pay and allowances, and a dishonorable

discharge. Pet. App. 9a.

On appeal, the CAAF granted review of “[w]hether

lying to a witness about [Petitioner’s] presence in the

courtroom to secure testimony materially prejudice[d]

[Petitioner’s]

Sixth

Amendment

right

to

confrontation.” Pet. App. 20a. The CAAF reviewed

the issue for plain error based on the absence of

objection at trial. Pet App. 4a.

The CAAF determined that “[s]everal of [the

prosecutor’s] responses, although indisputably

intended to ease EC’s concerns and facilitate his

testimony, were misleading or false.” Pet. App. 6a; see

also Pet. App. 4a, 15a (recognizing the prosecutor’s

statements as false and misleading). The CAAF

further opined “that [the prosecutor’s] misleading

statements might have lessened the pressure

[Petitioner’s] son felt to tell the truth,” going so far as

to note the Sixth Amendment’s general guarantee of a

face-to-face meeting with the witnesses because “[i]t

13

is always more difficult to tell a lie about a person to

his face than behind his back[.]” Pet. App. 4a, 14a

(citation omitted).

The CAAF then opined on the scope of its review:

To determine whether the military judge

committed plain error, we focus first on

the second prong of the test: whether the

alleged error would have been plain or

obvious. [Petitioner] cites no precedent

from any court holding that the Sixth

Amendment confrontation right requires

a child testifying remotely to be aware

that the defendant is viewing their

testimony. This appears to be a matter

of first impression not just in this Court

but in any court. The absence of any

controlling

precedent

strongly

undermines [Petitioner’s] argument that

the military judge committed plain or

obvious error by admitting EC’s

testimony.

Pet. App. 16a (citations omitted). The remainder of

the CAAF’s opinion focused on EC’s remote testimony

and how—pursuant to Craig, 497 U.S. at 51—it

satisfied the Sixth Amendment’s confrontation

elements of “oath, cross-examination, and observation

of the witness’[s] demeanor.” Pet. App. 16a-19a. The

CAAF ultimately denied Petitioner relief, concluding

that it “cannot say that it should have been plain or

obvious to the military judge that [the prosecutor’s]

misstatements would prejudice [Petitioner’s] right to

confrontation.”

Pet. App. 19a.

Based on this

reasoning, the CAAF declined to address the prejudice

prong of the plain error test. Id. Missing entirely from

14

its opinion was any reference to prosecutorial

misconduct.

REASONS FOR GRANTING THE PETITION

At the heart of this case is whether a prosecutor

can lie to a reticent witness during trial to procure

that witness’s testimony against an accused.

Granting certiorari to answer this question would

allow this Court to clarify the scope of the Sixth

Amendment’s confrontation right, a prosecutor’s

ethical obligations for candor, and the continuing

viability of Craig in a post-Crawford world—an issue

that, in and of itself, has sowed confusion among the

federal, military, and state courts.

Petitioner’s primary position is that, at minimum,

the Sixth Amendment requires that a witness evince

some minimal understanding that his or her

testimony is being given against an accused in an

adversarial court proceeding. This is particularly true

where, as here, the witness is distressed that the

accused will learn of his testimony. Consequently,

Petitioner posits that the prosecutor plainly and

clearly violated his right to confrontation by falsely

telling EC that he was not present, resulting in EC

providing his testimony under conditions tantamount

to being the constitutionally prohibited “anonymous

accuser.”

Relatedly, although Petitioner asserts his rights

were violated even under Craig’s parameters, he

respectfully

views

this

Court’s

subsequent

Confrontation Clause jurisprudence as narrowing

Craig’s import. Therefore, contrary to the CAAF’s

reasoning, Craig does not broadly sanction all remote

testimony that involves an oath, cross-examination,

15

and witness observation; rather, the procedures must

mirror those present or expressly condoned in Craig.

Nothing in that case suggests that a prosecutor is free

to misinform a child-witness regarding an accused’s

presence, nor that the child-witness’s testimony will

not be shared with others. There is likewise no other

controlling authority that permits such conduct.

But even if the lower court was correct that the

prosecutor’s errors were cured by the presence of the

Sixth Amendment’s other essential elements, the

prosecutor nevertheless violated a professional ethics

canon by lying to EC. This represented plain and

obvious prosecutorial misconduct that required a

prejudice analysis, albeit one whose burden rested

with Petitioner. The CAAF ignored this aspect of

Petitioner’s argument, contravening its own

precedent in the process and effectively creating an

ethical disparity between civilian and military

prosecutors.

A.

Lying to a witness about an accused’s

presence makes the testimony less

reliable,

thus

violating

the

Sixth

Amendment’s right to confrontation.

As the lower court correctly concluded, the

prosecutor’s misleading statements might have

lessened the pressure on EC to tell the truth. Pet.

App. 4a. More than that, however, the prosecutor’s

lies permitted EC to believe not just that his father

would be unaware of his testimony, but that those who

were then present in the room with EC would not

share it with others. See Pet. App. 78a, 82a. Such

conditions eviscerated the integrity of the fact-finding

process, effectively transforming EC into an

“anonymous accuser” who was unaware of the

16

consequences of his testimony. Green, 399 U.S. at 179

(Harlan, J. concurring). Under both Crawford and

Craig, this represented plain and obvious error that

violated Petitioner’s Sixth Amendment confrontation

right.

The ultimate goal of the Sixth Amendment is to

safeguard the fundamental fairness of trials. Pointer,

380 U.S. at 404.

This Court’s precedent has

accordingly recognized the importance of face-to-face

confrontation, aptly observing that “[i]t is always

more difficult to tell a lie about a person to his face

than behind his back” and, when the former occurs,

the lie “will often be told less convincingly.” Coy, 487

U.S. at 1019. Although Craig allowed an aberration

from this particular form of confrontation, nothing in

that case permitted the circumstances present here.

To the contrary, and in contrast with the CAAF’s

conclusions, Pet. App. 16a-18a, the other essential

elements of the Sixth Amendment upon which Craig

relied—oath,

cross-examination,

and

witness

observation—were far from satisfied. 497 U.S. at 851.

For similar reasons, EC’s testimony was never truly

tested under the crucible of cross-examination, which

Crawford has clarified is the dispositive factor in

determining the reliability of evidence. 541 U.S. at 61.

Addressing the oath requirement first, the

prosecutor never impressed upon EC the importance

of telling the truth nor the meaningfulness of his

testimony or the seriousness of the matter at hand.

See United States v. Washington, 63 M.J. 418, 424

(C.A.A.F. 2006) (citation omitted). From the outset,

she falsely assured the boy that it was “just the three

of us” he would be speaking to. Pet. App. 7a. The

prosecutor then exacerbated her falsehood when she

17

reiterated that “[a]ll you’ve got is the three people

right here.” Id. EC was confused, as he initially

believed he was only “practicing” and evinced surprise

that “the court thing” was actually happening.

Pet. App. 8a. And when the prosecutor finally seemed

to orient EC as to who was pictured in the covered

monitor and what they were doing, he still felt

compelled to ask, “Some people in there?” Pet. App.

77a. Yet, instead of ensuring EC’s understanding, the

prosecutor merely responded: “Um-huh.” Id. This

single comment, when weighed against EC’s previous

uncertainty, is insufficient to establish that he truly

comprehended what was happening at all, let alone

the seriousness of the proceedings.

Even assuming, arguendo, the prosecutor’s labors

by this point were successful, she irretrievably

shattered the image of an adversarial setting when

she lied to EC and told him Petitioner was not present.

Pet. App. 8a. Her misrepresentation was all the more

egregious because she provided it sua sponte, in

response to the boy’s inquiry on where his father

would be standing. Id. The prosecutor thus induced,

without correction, a scared nine year-old witness into

believing that not only would he be able to avoid

having to “repeat his story looking at the man whom

he will harm greatly,” he could do so wholly

unbeknownst to Petitioner. Coy, 487 U.S. at 1019

(internal citations omitted).

In very real terms, the prosecutor—who repeatedly

encouraged EC to speak to just herself and the two

others in the room with him—transformed EC into an

anonymous accuser. This was precisely what the boy

desired, since he did not “want [Petitioner] finding

out.” Pet. App. 78a-79a. Equally significant is the

18

timing: the prosecutor told the lie about Petitioner’s

absence prior to securing EC’s “promise” to tell the

truth.

Pet. App. 78a.

In fact, she made the

misrepresentation immediately before seeking his

pledge. Pet. App. 78a. It is thus unclear whether the

boy would have testified at all had he known his father

could hear him, or whether EC would have possessed

the same intent regarding the veracity of his

testimony. At the very least, it would be more

palatable for EC to lie about his willingness to tell the

truth if he thought he would be providing such

falsehoods “behind [Petitioner’s] back.” Coy, 487 U.S.

at 1019.

Though the circumstances surrounding EC’s

“promise” are in and of themselves sufficiently

problematic, there are additional questions involving

his capacity and intent to tell the truth. This is

exemplified by the significant effort the prosecutor

expended to have EC merely confirm that his shirt

was not yellow. Pet. App. 73a-75a. It was this very

line of questioning upon which the prosecutor

predicated her ultimate inquiry into whether EC

would be willing to tell truth, which the boy

immediately followed with a disclosure that his

mother was worried that “people will just believe

[Petitioner]” and that he did not want his father to

learn about what he was going to say. Pet. App. 78a79a. Thereafter, EC’s testimony was replete with

fantastical allegations of school children sexually

abusing him, of not stopping until Petitioner did, and

of them visiting Petitioner in Missouri. Pet. App. 81a82a. These are not facts that should instill confidence

in EC’s ability and willingness to tell the truth.

19

Turning next to Craig’s cross-examination

requirement, which parallels with Crawford,

Petitioner has never disputed that his counsel had the

opportunity to question EC. Pet. App. 17a-18a.

Petitioner further acknowledges that certain

infirmities in EC’s testimony arose during crossexamination, which can be an indicator that the

Confrontation Clause is satisfied. See Delaware v.

Fensterer, 474 U.S. 15, 22 (1985). But it is an entirely

separate matter whether EC fully understood the

adversarial process he was involved in.

As discussed above, it is unclear whether EC

comprehended that the statement he was giving was

for the purposes of a trial, that the people questioning

him were attorneys representing different interests,

that his father would ever receive this information,

and that his father was facing significant punitive

exposure. Moreover, if EC trusted the prosecutor’s

assertions—and nothing in the record suggests he did

not—he would have believed that what he confided to

her and the two others in their private room would

never be shared with anyone. Pet. App. at 82a. This

adversarial context, or rather lack thereof, is

important because it undermined Petitioner’s ability

to conduct a full and fair cross-examination.

Fensterer, 474 U.S. at 22. If EC, convinced by the

prosecutor’s falsities, never understood the stakes

involved, then he was never truly subjected to the

crucible of cross-examination. Crawford, 541 U.S. at

61; cf. Green, 399 U.S. at 199 (Brennan, J., dissenting)

(noting that a man willing to perjure himself at a

preliminary hearing “when the consequences are

simply that the accused will stand trial may be less

20

willing to do so when his lies may condemn the

defendant to loss of liberty.”).

But even if the procedural aspects of EC’s crossexamination were constitutionally firm, a problem

remains regarding the fact-finders’ ability to

accurately gauge his demeanor.

Without any

understanding of the trial process or consequences for

his testimony, EC would have no reason to fret over

falsehoods. This, in turn, would preclude the panel of

officer members from properly weighing mannerisms

that may measure credibility. For similar reasons,

EC’s induced belief that his father was absent would

lessen any nervousness about having to lie in his

presence. EC was therefore able to testify without the

panel “draw[ing] its own conclusions” about any

potential aversions while directly accusing Petitioner.

Coy, 487 U.S. at 1019.

Notably, the panel was also aware that EC is a

child with autism. Pet. App. 69a-70a. They further

understood, prior to his testimony, that his condition

affected his speech, physical movements, and ability

to process information.

Id.

These symptoms

manifested themselves during his remote testimony,

as he frequently evaded questions and provided nonresponsive or rambling answers. He was also fidgety

and did other physical acts not typically seen on the

witness stand. Pet. App. 71a. The panel was thus

placed in a situation where conduct that might

normally indicate untruthfulness—like evasion,

fidgeting, or unresponsiveness—could be cast aside

for wholly legitimate reasons.

Under such

circumstances, the panel had no way of accurately

evaluating “the manner in which” EC gave “his

testimony [or] whether he is worthy of belief.” Green,

21

399 U.S. at 158 (internal quotation marks and citation

omitted).

Given the above facts, EC’s remote testimony did

not contain the Sixth Amendment’s other essential

elements found in Craig, nor did EC meaningfully

endure the crucible of cross-examination championed

in Crawford. The absence of these factors, brought

upon

through

the

prosecutor’s

affirmative

misstatements, represents plain and obvious error.

And to the extent that there may be no federal law

directly on point—which the CAAF found compelling,

Pet. App. 16a (citation omitted)—it is important to

note that civilian prosecutors are generally guided to

refrain

from

lying

to

witnesses.

SCJ,

Standard 3-1.4(b).

Consequently,

while

the

circumstances of this case should not have arisen in a

court-martial, they were even more unlikely to arise

in a civilian trial.

B.

Assuming Craig still applies, it does not

broadly permit all remote testimony by

child witnesses, and certainly not under

the circumstances by which the

prosecutor procured EC’s testimony.

The scope of Craig—by its own terms—was

already quite narrow on the day it was decided. This

Court “only” upheld the use of one-way, closed-circuit

television in lieu of the Confrontation Clause’s

“preference” for face-to-face confrontation because

there was a case-specific finding that utilization of

this procedure (1) was necessary to further an

important public policy interest, and (2) the reliability

of the testimony was otherwise assured. 497 U.S. at

850. As discussed above, the second prong was not

met here. And as to the first prong, lying to a witness

22

to secure his testimony by telling him that the accused

is “not there” does not serve an important policy

interest. In fact, it does the opposite because it

“impinge[s] upon the truth-seeking” and “symbolic

purpose of the Confrontation Clause.” Id. at 852. The

CAAF nevertheless opined that Craig permitted the

circumstances here, essentially concluding that

because Craig did not expressly condemn a particular

feature of remote child witness testimony, it must be

permissible. Pet. App. 15a-16a. Respectfully, this is

incorrect.

Craig is a pre-Crawford remnant of this Court’s

Confrontation Clause jurisprudence that is, itself,

premised upon a line of precedent which this Court

has expressly overruled and abandoned.

See

Crawford, 541 U.S. at 67-69. Thus, in considering

whether a departure from the normal dictates of the

Confrontation Clause (e.g., knowledge that the

accused can contemporaneously perceive one’s

testimony) can be dispensed with pursuant to Craig,

the operative question is whether Craig expressly

permits it, not whether Craig speaks to it at all. More

simply, unless Craig explicitly sanctions departure

from a normal feature of the confrontation right, the

presumption should be that it is impermissible. The

CAAF’s conclusion erroneously inverted the analysis.

This Court’s recent opinion in Hemphill

underscores the point. 142 S. Ct. 681. In that near

unanimous decision, this Court emphasized how

Crawford marked an “emphatic rejection of the

reliability-based approach of Ohio v. Roberts.” Id. at

691.

Since Craig is a product of this clearly

abandoned line of “reliability” precedent, it should be

read to permit only that which it unequivocally

23

condones. See, e.g., Jemison, 505 Mich. at 356

(restricting Craig to its “narrow facts” in light of

Crawford). Notably, Craig did not involve a child

witness who was unaware that the defendant was

present. Likewise, nothing in the decision suggests

that the Government is free to misinform a childwitness regarding an accused’s presence, nor that the

child-witness’s testimony will not be shared with

others. The CAAF therefore erred in broadly applying

Craig where it should have narrowly interpreted the

decision based on its case-specific facts.

C.

In declining to address prosecutorial

misconduct, the CAAF contravened its

own precedent and created an ethical

disparity between military and civilian

prosecutors.

The CAAF has long held that a prosecutor’s

violation of ethical or professional responsibility

canons qualifies as misconduct. Meek, 44 M.J. at 5

(citing Berger, 295 U.S. at 88). This is consistent with

the professional responsibility standards to which all

Air Force attorneys must adhere in order to maintain

the integrity of their profession. See, e.g., ARPC,

R. 8.4(c) (“It is professional misconduct for a lawyer to

. . . engage in conduct involving dishonesty, fraud,

deceit, or misrepresentation”); AFSCJ, Standard

3-1.2(d) (requiring military prosecutors “know and be

guided by the standards applicable to military counsel

by the [UCMJ, MCM, AFI 51-201, and the ARPC][.]”).

Thus, both the CAAF and military Service Courts of

Criminal Appeals have repeatedly relied on this

precedent in determining appeals based on

prosecutorial misconduct. See, e.g., United States v.

Quintanilla, 63 M.J. 29, 38-39 (C.A.A.F. 2006)

24

(finding

advocate-witness-based

prosecutorial

misconduct pursuant to a violation of a Naval ethical

rule); United States v. Golston, 53 M.J. 61, 65-66

(C.A.A.F. 2000) (evaluating prosecutorial misconduct

based on an alleged breach of professional ethics and

an Army Regulation); United States v. Hamilton, 41

M.J. 22, 26-27, 26 n. 2 (C.A.A.F. 1994) (evaluating

alleged misconduct under the ABA’s SCJ and Model

Rules of Professional Conduct); United States v.

Bowser, 73 M.J. 889, 899 (A.F. Ct. Crim. App. 2014)

(relying on AFSCJ in evaluating discovery-related

prosecutorial misconduct).

Notably, the CAAF here determined—in no

uncertain terms—that “[s]everal of [the prosecutor’s]

responses . . . were misleading or false.” Pet. App. 6a.

This should thus represent plain and obvious

violations of the fundamental tenets of professional

responsibility and ethics; yet, the CAAF never

addressed prosecutorial misconduct. Pet. App. 3a19a. This departs from its well-established precedent

dictating that “an appellate court usually considers

the legal norm violated by the prosecutor” and then

“determines if its violation actually impacted on a

substantial right of an accused.” Meek, 44 M.J. at 5;

see also United States v. Andrews, 77 M.J. 393, 402

(C.A.A.F. 2018). This departure is problematic for at

least two reasons.

First, assuming arguendo that the CAAF correctly

concluded there was no plain or obvious Sixth

Amendment error, the prosecutor’s clear misconduct

entitled Petitioner to a prejudice evaluation, albeit

under a different standard. See Meek, 44 M.J. at 5;

Andrews, 77 M.J. at 402; United States v. Fletcher, 62

M.J. 175, 179-84 (C.A.A.F. 2005). Absent error

25

implicating a constitutional right, discussed supra,

the CAAF evaluates prejudice resulting from

misconduct based on three factors: “(1) the severity of

the misconduct, (2) the measures adopted to cure the

misconduct, and (3) the weight of the evidence

supporting the conviction.” Andrews, 77 M.J. at 402

(citation omitted).

Here, the material prejudice to Petitioner’s

substantial rights resulting from the prosecutor’s

misconduct was that a witness crucial to Petitioner’s

conviction testified under what amounted to false

pretenses. Moreover, absent the prosecutor’s ethical

violations, EC might not have testified at all. While

Petitioner maintains these circumstances cannot

comport with the Sixth Amendment’s guarantee of

robust confrontation in an adversarial criminal

proceeding, at a bare minimum there was material

prejudice to “the fairness and integrity of his trial.”

Andrews, 77 M.J. at 402 (citation omitted). Simply

put, once the CAAF determined that no Sixth

Amendment right was implicated, it should have

considered prejudice based on the clear and obvious

prosecutorial misconduct. Its failure to do so was

error and justifies this Court’s intervention.

The second and potentially more problematic

aspect of the CAAF’s silence on prosecutorial

misconduct is that it appears to create an ethical rift

between civilian and military prosecutors.

As

mentioned above, Petitioner posits that there is likely

no precedent for a prosecutor lying in court to a

witness so as to procure that witness’s testimony due

to ethical guidelines. See SCJ, Standard 3-1.4(b), see

also Standard 3-1.4(a).

The CAAF’s decision,

however, implicitly sanctions such conduct in courts26

martial.

Previously, this Court has favorably

compared the military justice system to its civilian

counterparts in terms of protections for the accused.

Ortiz v. United States, 138 S. Ct. 2165, 2174-75 (2018)

(citations omitted). And members of this Court have

likewise acknowledged the diligence, professionalism,

and integrity of the officers who work within the

military’s construct. Id. at 2203 (Alito, J. dissenting).

The CAAF’s tacit condonation of the prosecutor’s

misconduct here severs any such similarities in the

fairness of the two judicial systems, and may

ultimately serve to undermine the heretofore accurate

perception regarding the integrity of military

prosecutors. If a civilian prosecutor is prohibited from

lying to a witness on the stand, no specialized military

rationale should justify any contrary conduct by a

military prosecutor.

CONCLUSION

The prosecutor in this case clearly, obviously, and

improperly lied. The lies and distortions were made

to a critical witness about facts material to his

testimony. But for the prosecutor’s misconduct, it is

unclear whether EC would have testified at all, let

alone openly accused his father of a crime.

Most importantly, the misconduct in this case

rendered EC the paradigmatic “anonymous accuser”

recognized as anathema to the Confrontation Clause.

Simply put, no face-to-face confrontation occurred in

this case—in actuality or in spirit—and the

Government could not have met the appropriate

burden of proving this error harmless beyond a

reasonable doubt.

27

In addition, the CAAF ignored the prosecutor’s

violation of fundamental ethical tenets, finding no

plain error and affirming Petitioner’s conviction. Not

only does this decision run counter to its own

precedent, it renders the military justice system one

in which prosecutors are free to lie to witnesses in

order to secure testimony against an accused. The

basic notions of integrity upon which a truth-seeking

justice system rely cannot abide the outcome

presented here.

For the foregoing reasons, this Court should grant

the petition for a writ of certiorari.

Respectfully Submitted,

ALEXANDRA K. FLESZAR

Counsel of Record

HEATHER M. CAINE

Appellate Defense Counsel

Air Force Appellate Defense Division

1500 West Perimeter Road,

Suite 1100

Joint Base Andrews, MD 20762

(240) 612-4770

alexandra.fleszar.1@us.af.mil

Counsel for Petitioner

28