Petition for Writ of Certiorari — Heyward v. United States

Supreme Court, U.

FILED

\\ D4 C27 OCT 24 19%

GEFICE OF IHE CLERK

No.

In the Supreme Court of the United States

OCTOBER TERM, 1994

JANIET L. HEYWARD, STAFF SERGEANT,

UNITED STATES AIR FORCE, PETITIONER

Vv.

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

PETITION FOR A WRIT OF CERTIORARI

JAY LINDSEY COHEN

Colonel, United States Air Force

Chief, Appellate Defense Division

Counsel of Record

MARK JEFFREY SIMMS

Captain, United States Air Force

Appellate Defense Counsel

Counsel for the Petitioner

AIR FORCE LEGAL SERVICES AGENCY

Appellate Defense Division

172 Luke Avenue, Suite 208

Bolling AFB, DC 20332-5113

October 1994

QUESTIONS PRESENTED

Whether the Military Judge’s denial of a continuance re-

quested by petitioner to secure an exculpatory polygraph

test violated petitioner’s rights under the United States

Constitution Sixth Amendment Compulsory Process

Clause and the United States Constitution Fifth Amend-

ment Due Process Clause.

Whether Military Rule of Evidence 707’s ban on the ad-

mission of polygraph results is a denial of petitioner’s

United States Constitution Sixth Amendment right to

compulsory process and petitioner’s United States Con-

stitution Fifth Amendment Right to Due Process of Law.

TABLE OF CONTENTS

OP TINGS SRORAPO 6cn0s bvndanenbenwessenstreess

FREON COGS és odin vcs e ease penaeueueess aes

CONSTITUTIONAL PROVISIONS INVOLVED ....

STA TEMES OF Clee CFR bab vcerccnewesssssss

REASON FOR GRANTING THE WRIT ...........

CONCUARIIII 6 64409-9- hee wheats eek

APPENDIX A (27 July 1994 Order of the United States

Court of Riiiary A 665 5s ckoe eset ss

APPENDIX B (18 October 1993 Decision of the United

States Air Force Court of Military Review) .........

APPENDIX C (22 June 1993 Order of the United States

Court of Neary ROD onc 005 habia doteen cds

APPENDIX D (23 September 1992 Decision of the

United States Air Force Court of Military Review) .. .

lla

TABLE OF AUTHORITIES

UNITED STATES SUPREME COURT CASES: Page

Barefoot v. Estelle, 463 U.S. 880 (1983) ......... 10

California v. Trombetta, 467 U.S. 479 (1984) ..... 8

Chambers v. Mississippi, 410 U.S. 284 (1973) .... 8

Hawkins v. United States, 358 U.S. 74 (1958) .... 13

In Re Oliver, 333 U.S. 257 (1948) ............... 8

Rock v. Arkansas, 483 U.S. 44 (1987) ........... 9, 10

Taylor v. Illinois, 484 U.S. 408 (1988) ...... ihe 8

Ungar v. Sarafite, 376 U.S. 575 (1964) .......... 6

United States v. Valenzuela-Bernal, 458 U.S. 858

SRI Coed ie Pa t a 8

: Washington v. Texas, 388 U.S. 14 (1967) ........ 8,9

FEDERAL CASE:

| United States v. Piccinonna, 885 F.2d 1529 (11th

. es yo ed ve be 8% 9, 13

MILITARY CASES:

j United States v. Andrews, 36 M.J. 922 (A.F.

ea wap anh oe een ae 5, 6,7

| United States v. Browers, 20 M.J. 356 (C.M.A.

| ee 41 goa) ake ths 6

/ United States v. Fortner, 37 M.J. 349 (C.M.A.

ee oe ne he eed es Mice eos whee 7

United States v. Fergason, 6 M.J. 844 (N.M.

ates Ba gt wea 4 tay ss i 6

United States v. Gipson, 24 M.J. 246 (C.M.A.

Ie ee ae as os aaa is es a 11, 12

United States v. Heyward, ACM S28688 (f. rev.),

unpub. (A.F.C.M.R. 18 October 1993), affd,

as Swe ee 2 eee MO Se ia

United States v. Heyward, ACM 828688, unpub.

(A.F.C.M.R. 13 September 1982), set aside and

remanded, 38 M.J. 226(C.M.A. 1993) ........ a

United States v. Kevs, 29 M.J. 920 (A.C.ML.R.

ga ee GOH Fe ree 6

i

CASES — Continucd: Page

United States v. Muaresca, 28 M.J. 328 (C.M.A.

_, St Aree ena Dar er yr a, cme trary Gy ges ey ay 6

United States v. McKinnie, 29 M.J. 825 (A.C.M.R.

1989), uffd on other grounds, 32 M.J. 141

eR NE eR Fe a atin Se a 12

United States v. Menoken, 14M.J. 10 (1982) ..... 5

United States v. Peel, 29M.J. 235 (C.M.A. 1989) .. 10

United States v. Sullivan, 26 M.J. 442 (C.M.A.

RRR Serra Se 9 ee hag Oy rl ee 5

United States v. West, 27 M.J. 223 (C.M.A. 1988) . 12

United States v. Williams, 39 M.J. 555 (A.C.M.R.

Io on a we ue wks 10, 13

CONSTITUTIONAL PROVISIONS:

Sh a A Se Z, 5. BBs Bas Bs 34

th ee Me & ) eer Zz, 5, 6, &, izZ, 33, 34

UNITED STATES STATUTES:

10 U.S.C.A. Section 867a (West Supp. 1994) ..... 2

28 U.S.C.A. Section 1259(3) (West 1993) ........ 2

UNIFORM. CODE OF MILITARY JUSTICE:

Article 40, 10 U.S.C. Section 840 (1988) ......... 5

Article 67(a)(2), 10 U.S.C.A. Section 867(a)(2)

DO et a Se ee er es a 13

Article 112a, 10 U.S.C. Section 912a (1988) ...... 2

MILITARY RULES OF EVIDENCE:

Military Rule of Evidence 401 .............2005- 12

Military Rule of Evidence 402 ...... 0.6.00. sees 12

Miltary Rule of Evidence 403 ............-..-%:. 12

Military Rule of Evidence 702 ...... 2.26 .ee eves 9, 12

Military Rule of Evidence 707 ............... 6 45.93. i

Military Rule of Evidence 707(a) ......... 5, 8, 10, 13, 14

ee

OTHER AUTHORITY:

Exec. Order No. 12,767, 56 Fed. Reg. 30,284

(1991)

Halbleib, United States v. Piccinonna: The Eleventh

Circuit Adds Another Approach to Polygraph

Evidence in the Federal System, 80 Kentucky

L.J. 225 (1992)

Raa eaektanwr eat f = ae ee a es en oe Ss oe eee se a ee

McCormack, McCormack on Evidence (3d ed.

1984)

Page

10)

In the Supreme Court of the United States

OCTOBER TERM, 1994

No.

JANIET L. HEYWARD, STAFF SERGEANT,

UNITED STATES AIR FORCE, PETITIONER

Vv.

UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

PETITION FOR A WRIT OF CERTIORARI

The petitioner, Janiet L. Heyward, respectfully prays

that a writ of certiorari issue to review the order of the

United States Court of Military Appeals entered in her

case on 27 July 1994.

OPINIONS BELOW

The 27 July 1994 order of the United States Court of

Military Appeals, United States v. Heyward, M.J.

____ (C.M.A. 1994) is reprinted at Appendix A. The un-

published decision of the United States Air Force Court of

Military Review, United States v. Heyward, ACM S28688

(f. rev.), unpub. (A.F.C.M.R. 18 October 1993), affd,

____ M.J. ____ (C.M.A. 1994) is reprinted at Appendix B.

The 22 June 1993 order of the United States Court of Mili-

tary Appeals, 38 M.J. 226 (C.M.A. 1993), is reprinted at

Appendix C. The 23 September 1992 unpublished decision

of the United States Air Force Court of Military Review,

United States v. Heyward, ACM S28688, unpub. (A.F.

C.M.R. 1992), set aside and remanded, 38 M.J. 226

(C.M.A. 1993), is reprinted at Appendix D.

(1)

ty

JURISDICTION

The order of the United States Court of Military Ap-

peals was entered on 20 July 1994. The jurisdiction of this

Court is invoked under 28 U.S.C.A. Section 1259(3) (West

1993) and 10 U.S.C.A. Section 867a (West Supp. 1994).

CONSTEFUTIONAL PROVISIONS INVOLVED

The Fifth Amendment of the Constitution of the United

States provides, in pertinent part, “[n]o person shall...

be deprived of life, liberty, or property, without due proc-

ess Of law... .” The Sixth Amendment of the Constitu-

tion of the United States provides, in pertinent part, “[i]n

all criminal prosecutions, the accused shall enjoy the right

. . . to have compulsory process for obtaining witnesses in

his favor... .”

STATEMENT OF THE CASE

Petitioner was charged with wrongful use of marijuana

at or near Bexar County, Texas on divers occasions from

on or about | December 1989 to on or about 23 January

1993, in violation of Article 112a of the Uniform Code of

Military Justice, 10 U.S.C. Section 912a (1988).' She was

convicted? by a special court-martial composed of a mili-

' Petitioner was also charged with dereliction of duties as a non-

commissioned officer from on or about | December 1989 to on or

about 23 January 1992, by willfully allowing herself to inhale mari-

juana smoke in her proximity in such amount that her urine sample

would test positive. See DD Form 458. The Military Judge found her

not guilty of this charge and specification pursuant to defense motion.

See R. 87.

? Pursuant to defense motion, the Military Judge struck “on divers

occasions” trom the specification and amended the charged time

“trom on or about 1 December 1989” to “from on or about 23

December 1991”. See R. 87-89.

3

tary judge sitting alone and sentenced to a bad conduct

discharge and reduction to the lowest enlisted grade. The

convening authority approved the sentence as adjudged.

The United States Air Force Court of Military Review af-

firmed the findings and sentence in an unpublished deci-

sion dated 23 September 1992. See United States v.

Heyward, ACM 828688, unpub. (A.F.C.M.R. 23 Septem-

ber 1992), set aside and remanded, 38 M.J. 226 (C.M.A.

1993) and Appendix D. Petitioner petitioned the United

States Court of Military Appeals for a grant of review of

the decision of the United States Air Force Court of

Military Review. By order dated 22 June 1993, the United

States Court of Military Appeals set aside the decision of

the United States Air Force Court of Military Review and

remanded the case to the United States Air Force Court of

Military Review for consideration of issues similar to the

issues raised before this Court. See 38 M.J. 226 (C.M.A.

1993) and Appendix C. On 18 October 1993 the United

States Air Force Court of Military Review again affirmed

the findings and sentence in an unpublished opinion. See

United States v. Heyward, ACM 828688 (f. rev.), unpub.

(A.F.C.M.R. 18 October 1993), affd, <

(C.M.A. 1994), hereinafter cited as Heyward III) and Ap-

pendix B. Petitioner petitioned the United States Court of

Military Appeals for review of the decision of the United

States Air Force Court of Military Review. In an order

dated 27 July 1994, the United States Court of Military

Appeals granted petitioner’s petition for review and sum-

marily affirmed the decision of the United States Air

Force Court of Military Review. See ss M.J. ____

(C.M.A. 1994) and Appendix A.

Petitioner provided a urine sample in a random urinalysis

on 23 January 1992 which tested positive for the metabo-

lites of marijuana. Heyward III at 2. Petitioner was inter-

viewed by AFOSI (Air Force Office of Special Investiga-

tions) agents, denied using marijuana, and agreed to take a

4

polygraph examination. /d. On 21 February 1992 petitioner

took the polygraph examination. /d. After finishing two

series of questions, the polygrapher expressed the opinion

that petitioner was not lying when she denied “purposely”

using marijuana while in the United States Air Force. /d.

Charges were preferred against petitioner on 30 March 1992

and referred to a special court-martial on 1 April 1992. /d.

An initial trial date of 17 April 1992 was set. /d. On 16

April 1992, the United States requested a delay in the pro-

ceedings until 29 April 1992. /d. The delay request was

granted. /d.

Petitioner requested the director of the DoD Polygraph

Institute to review the results of her examination. /d. On

23 April 1992 trial defense counsel was notified by AFOSI

that petitioner’s polygraph results had been invalidated by

the DoD Polygraph Institute and HQ AFOSI because of

“ “an improper comparison of a test question to a control

question.’ ” Jd. An AFOSI polygrapher offered to retest

petitioner at 0800 on 24 April 1992. /d. Petitioner’s trial

defense counsel declined the offer because of a scheduling

conflict with a hearing in another case. On 27 April 1992

trial defense counsel requested a delay in the trial from 29

April 1992 to 6 May 1992 so that another polygraph ex-

amination could be performed. /d. Trial defense counsel

acknowledged Military Rule of Evidence 707 (which ex-

cludes results of a polygraph examination and related mat-

ters from admission) but asserted that the rule was un-

constitutional. /d. The United States opposed the request

based on the inadmissibility of polygraph evidence. /d.

The Military Judge denied the defense delay request. /d.

Petitioner renewed her request for a continuance at

trial. Jd. Trial defense counsel made an offer of proof in

which she which she explained her intent to contest the

constitutionality of M.R.E. 707 and explained why she

needed a continuance. /d. Trial defense counsel explained

that she refused the AFOSI offer of the 24 April 1992

polygraph because she had a pretrial confinement hearing

5

scheduled at another installation and because she was un-

sure whether she would have adequate opportunity to fully

discuss the issue with her client. /d. at 2-3. The Military

Judge denied the request for a continuance on the basis of

M.R.E. 707. See R. 21. At trial petitioner took the stand

and denied knowingly using marijuana. See R. 122.

REASON FOR GRANTING THE WRIT

CONSIDERATION OF THIS CASE WILL GIVE

THIS HONORABLE COURT THE OPPORTUNI-

TY TO ADDRESS THE CONSTITUTIONALITY

OF MILITARY RULE OF EVIDENCE 707(a),

WHICH PER SE EXCLUDES POLYGRAPH

RESULTS FROM COURTS-MARTIAL AND

VIOLATES PETITIONER’S RIGHTS UNDER

THE FIFTH AND SIXTH AMENDMENTS OF

THE UNITED STATES CONSTITUTION, AND

WHICH THREATENS THE FIFTH AND SIXTH

AMENDMENT RIGHTS OF THE MILLiONS OF

SERVICEMEMBERS IN THE UNITED STATES

ARMED FORCES.

A Military Judge may grant a continuance for a

reasonable cause to any party for such time, and as often as

may appear just. Article 40, U.C.M.J., 10 U.S.C. Section

840 (1988); United States v. Andrews, 36 M.J. 922, 924

(A.F.C.M.R. 1993). A purpose of the continuance to is

allow counsel for both sides to prepare for trial. Andrews,

36 M.J. at 924. The Military Judge is responsible for pre-

judice that may result to an accused and should err on the

side of granting a delay on a showing of good cause. /d. at

926. The standard of review for a Military Judge’s decision

to deny a continuance is abuse of discretion. United States

v. Sullivan, 26 M.J. 442, 443 (C.M.A. 1988); United

States v. Menoken, 14 M.J. 10, 11 (1982). “A military

judge’s decision to grant or deny a continuance is a matter

of discretion, based upon facts and circumstances then

6

and there existing.” United States v. Maresca 28 M.J. 328,

333 (C.M.A. 1989). See United States v. Browers, 20 M.J.

356, 360 (C.M.A. 1985). Whenever an accused’s request for

a continuance is based on a substantial right, mere ad-

ministrative inconvenience to the prosecution is not a suffi-

cient ground for denying the request. See Andrews, 36 M.J.

at 926; United States v. Keys, 29 M.J. 920 (A.C.M.R.

1989). See also United States v. Fergason, 6 M.J. 844

(N.M.C.M.R. 1979) (request for continuance so accused

could be represented by individual military counsel). “[A]

myopic insistence upon expeditiousness in the face of a

justifiable request for delay can render the right to defend

with counsel an empty formality.” Ungar v. Sarafite, 376

U.S. 575, 589 (1964) (citations omitted).

This case was originally set for trial on 17 April 1992.

On 16 April 1992, the United States submitted a delay re-

quest so that a circuit trial counsel could represent the

United States. See Allied Papers, Request for Delay-

United States v. Heyward, dated 16 April 1992. The

Military Judge granted a twelve day delay. Jd. On 27 April

1992, two days before trial, the defense requested a seven

day delay so that a second polygraph could be performed

on petitioner. See Allied Papers, Request for Delay- U.S.

v. Heyward, dated 27 April 1992. Trial Counsel’s indorse-

ment opposed the delay, and the Military Judge denied the

request. See id. Trial defense counsel renewed her request

for delay at trial and fleshed out the full reasons for the re-

quest. See R. 9-10. The Military Judge denied the motion,

but set forth findings of fact for appeal. See R. 14-22.

Petitioner’s request for delay was based on substantial

rights —her rights under the Fifth and Sixth Amendments

of the United States Constitution to present evidence on

her behalf. There was no evidence before the court that the

delay was requested for an improper purpose. The fact

that petitioner had passed an earlier polygraph, in the

opinion of the polygrapher, indicates that the possiblity of

obtaining an exculpatory polygraph was more than mere

speculation. The trial court made no findings that a delay

was not feasible in light of the court schedule, the

schedules of the parties, or any other reason. And the

court had granted the United States an earlier, twelve day

delay which had been requested one day prior to the

original trial date,

Comparison between the instant case and United States

v. Andrews, 36 M.J. 922 (A.F.C.M.R. 1993) in instruc-

tive. In Andrews the accused asked for a delay of ten to

fourteen days which delay was denied after a delay pre-

viously granted to the United States. “The prosecution op-

posed the delay but offered no reasons other than ad-

ministrative inconvenience and its general disagreement

that a delay was needed.” Andrews, 36 M.J. at 926. The

United States Air Force Court of Military Review held

that the Military Judge abused his discretion in denying

the defense request for a continuance and set aside the

findings and sentence. See id. at 926-927.

In affirming petitioner’s conviction, the United States

Air Force Court of Military Review implicitly found that

trial defense counsel’s decision not to allow petitioner to

take the polygraph examination in her absence was

unreasonable. See Heyward III at 2-3. Trial defense

counsel had a prior commitment for a pretrial confine-

ment hearing. See R. 16. Trial defense counsel’s decision

not to allow her client to attend the polygraph alone was a

reasonable decision. In United States v. Fortner, 37 M.J.

349 (C.M.A. 1993), counsel allowed his client to take an

unaccompanied polygraph after receiving verbal and writ-

ten assurances that no post-polygraph conversations

would take place. On cross-examination of Fortner the

trial counsel questioned Fortner about a comment made

by the polygrapher to Fortner after the examination. /d. at

350. The United States Court of Military Appeals failed to

find prejudice or plain error. See id. at 351.

The Military Judge’s denial of petitioner’s request for a

reasonable continuance denied petitioner’s rights under the

Fifth and Sixth Amendments of the United States Constitu-

tion and was an abuse of the Military Judge’s discretion.

“Notwithstanding any other provision of law, the results

of a polygraph examination, the opinion of a polygraph

examiner, or any reference to an offer to take, failure to

take, or taking of a polygraph examination, shall not be

admitted into evidence.” M.R.E. (Military Rule of

Evidence) 707(a). “No person shall be . . . deprived of life

liberty, Or property, without due process of law... .”

U.S. Const. amend. V. “In all criminal prosecutions, the

accused shall enjoy the right. . . to have compulsory pro-

cess for obtaining witnesses in his favor ....” U.S.

Const. amend. VI. “The righi to offer the testimony of

witnesses, and to compel their attendance, if necessary, is

in plain terms the right to present a defense, the right to

present the defendant’s version of the facts.” Washington

v. Texas, 388 U.S. 14, 19 (1967). The accused has the right

to call witnesses whose testimony is material and favorable

to his defense. United States v. Valenzuela-Bernal, 458

U.S. 858 (1982).

In sum, the foregoing provisions require that an accused

be given a “meaningful opportunity to present a complete

defense.” California v. Trombetta, 467 U.S. 479, 485

(1984). The accused must be given 2 fundamentally fair

trial in which he is given “an opportunity to be heard in his

defense —a right to his day in court.” Jn Re Oliver, 333

U.S. 237. 202 (1948). “Few rights are more fundamental

than that of an accused to present witnesses in his own

defense.” Taylor v. Illinois, 484 U.S. 400, 408 (1988);

Chambers v. Mississippi, 410 U.S. 284, 302 (1973).

The Court has looked with disfavor on per se exclu-

sionary rules when the effect of such rules is to deny an ac-

cused the right to present relevant, probative evidence in

9

his defense. “The Framers of the Constitution did not in-

tend to commit the futile act of giving to a defendant the

right to secure the attendance of witnesses whose test-

imony he has no right to use.” Washington v. Texas, 388

U.S. 14, 23 (1967) (reversing the conviction of the accused

who had been precluded from offering the testimony of a

coactor under Texas statutes barring the testimony of co-

participants in the same crime if the coactor is called as a

witness by the accused). Restrictions on the defendant’s

right to testify may not be arbitrary or disproportionate to

the purposes they are designed to serve. Rock v. Arkansas,

483 U.S. 44, 55-56 (1987). In applying evidentiary rules,

the sovereign must determine whether the interests ad-

vanced by the rules justify the limitations placed on

defendants’ rights. See id. at 56. “A State’s legitimate in-

terest in barring unreliable evidence does not extend to per

se exclusions that may be reliable in an individual case.”

Id. at 61 (emphasis in original).

As Professor McCormick has noted, concerns about

reliability “are not sufficient to warrant a rigid exclu-

sionary rule. A great deal of lay testimony routinely ad-

mitted is at least as unreliable and inaccurate, and other

forms of scientific evidence involve risks of instrumental

or judgmental error.” McCormick, McCormick on

Evidence Section 206 at 629 (3d. ed. 1984), quoted in

United States v. Piccinonna, 885 F.2d 1529, 1533 (11th

Cir. 1989). “If scientific, technical, or other specialized

knowledge will assist the trier of fact to understand the

evidence or to determine a fact in issue, a witness qualified

as an expert by knowledge, skill, experience, training, or

education, may testify thereto in the form of an opinion or

otherwise.” Military Rule of Evidence 702. Any individual

who has knowledge in a field which exceeds the knowledge

of the typical court member might be qualified as an ex-

10)

pert. See United States v. Peel, 29 M.J. 235, 241 (C.M.A.

1989). Other testimony of certainly no greater reliability

than polygraph results are uniformly admitted into

evidence at courts-martial, e.g., psychiatric testimony.

This Court has noted the poor predictive powers of

psychiatric testimony. See Barefoot v. Estelle, 463 U.S.

880, 927-28 (1983) (Marshall, J., dissenting) (“[p]sychi-

atric predictions of future dangerousness are not accurate;

wrong two times out of three, their probative value, and

therefore any possible contribution they might make to the

ascertainment of truth, is virtually nonexistent.”) (em-

phasis in original). This Court held that a state may not

per se exclude hypnotically refreshed testimony (see Rock

v. Arkansas, 483 U.S. 44 (1987)), which is likely less

reliable testimony than polygraph testimony. See

Halbleib, United States v. Piccinonna: The Eleventh Cir-

cuit Adds Another Approach to Polygraph Evidence in

the Federal System, 80 Kentucky L.J. 225, 251 (1992).

The effect of Military Rule of Evidence 707(a) on an ac-

cused’s rights to present evidence on his behalf was con-

sidered by the United States Army Court of Military

Review in United States v. Williams, 39 M.J. 555

(A.C.M.R. 1994). The court noted:

This rule effectively removes any discretion from a

military judge to weigh the legal and logical relevance

of polygraph evidence. [footnote omitted] It denies a

proponent an opportunity to even attempt to lay a

foundation for admitting polygraph evidence, regard-

less Of whether it is reliable, relevant, helpful, and

even if its probative value outweighs any extraneous

factors.

Id. at 557. The court noted that the rule “represents a

dramatic shift from prior military precedent.” Jd. (The ex-

clusion of M.R.E. 707(a) was incorporated into military

lf

law with Change 5 to the Manual for Courts-Martial,

United States, 1984.°)

In a case which preceded Change 5 to the Manual for

Courts-Martial, United States v. Gipson, 24 M.J. 246

(C.M.A. 1987), the United States Court of Military Ap-

peals addressed the admissiblity of polygraph evidence.

The accused moved at trial for the admission of an ex-

culpatory polygraph which he secured at his own expense.

Id. at 247. The United States moved for admission of the

testimony of a Naval Investigative Service polygrapher

who examined the accused and concluded he was deceptive

in answering relevant questions. Jd. The Military Judge

ruled that neither party would be aliowed to attempt to lay

a foundation or admit polygraph evidence. /d.

The Court of Military Appeals noted:

In our assessment, the state of the polygraph techni-

que is such that, depending on the competence of the

examiner, the suitability of the examinee, the nature

of the particular testing process employed, and such

other factors as may arise, the results of a particular

examination may be as good as or better than a good

deal of expert and lay evidence that is routinely and

uncritically received in criminal trials... . [W]e do

not suggest that all polygraph evidence is admissible

or that this particular evidence should have been ad-

mitted. [footnote omitted] Appellant still bears the

burden of establishing the foundational predicates

outlined above. Our holding here is only that ap-

pellant was entitled to attempt to lay that foundation.

Gipson, 24 M.J. at 253.

* Change 5 is dated 15 November 1991. M.R.E. 707 is applicable

only to cases in which arraignment was completed on or after 6 July

1991. Change 5 incorporates Executive Order No. 12767, dated 27

June 1991, published at 56 Federal Register 30284.

12

The United States Court of Military Appeals reiterated

its Gipson ruling in United States v. West, 27 M.J. 223,

225 (C.M.A. 1988), stating “polygraph results must be

evaluated under the entire spectrum of evidentiary rules.”

“(T]he question [is] whether the evidence is relevant under

Mil.R.Evid. 401 and 402, whether the evidence is helpful

to the factfinder within the meaning of Mil.R.Evid. 702,

and whether its probative value outweighs collateral

dangers in accordance with Mil.R.Evid. 403.” United

States v. McKinnie, 29 M.J. 825, 827 {(A.C.M.R. 1989),

aff'd on other grounds, 32 M.J. 141 (C.M.A. 1991).4

The United States Army Court of Military Review held

that the total ban on polygraph evidence violated the Fifth

and Sixth Amendments of the United States’ Constitution.

As the Gipson court noted, however, there is no right

to present evidence — however much it purports to ex-

onerate the accused — unless it is shown to be relevant

and helpful. But the question of whether these find-

ings were reliable, relevant, or helpful was, by virtue

of Mil.R.Evid. 707, never addressed. The rule simply

removes judicial discretion from this critical step in

the evidentiary process. We hold under the facts of

this case that appellant’s Fifth Amendment right to a

fair trial by court-martial, combined with his Sixth

Amendment right to produce favorable witnesses on

his behalf, affords him the opportunity to be heard

on these foundational matters, and allows for the

possibility of admitting polygraph evidence, notwith-

standing the explicit prohibition of Mil.R.Evid. 707.

+ M.R.E. 401 defines relevant evidence. M.R.E. 402 states that rele-

vant evidence is generally admissible and that irrelevant evidence is in-

admissible. M.R.E. 403 states that relevant evidence may be excluded

on grounds of prejudice, confusion, or waste of time. M.R.E. 702 in-

volves expert testimony.

13

Williams, 39 M.J. at 558.°

The Eleventh Circuit Court of Appeals has held that

polygraph evidence is not per se inadmissible. See United

States v. Piccinonna, 885 F.2d 1529 (11th Cir. 1989). The

court noted:

The advent of new and development technologies

calls for flexibility within the legal system so that the

ultimate ends of justice may be served. It is unwise to

hold fast to a familiar rule when the basis for the rule

ceases to be persuasive. We believe that the science of

polygraphy has progressed to a level of acceptance

sufficient to allow the use of polygraph evidence in

limited circumstances where the danger of unfair pre-

judice is minimized.

Id. at 1537.

As Justice Stewart observed, “[a]ny rule that impedes

the discovery of truth in a court of law impedes as well the

doing of justice.” Hawkins v. United States, 358 U.S. 74,

81 (1958) (Stewart, J., concurring). Military Rule of

Evidence 707(a) is an arbitrary exclusionary rule which is

overly broad in deterring the evil it was created to deter

(unreliable evidence) and is an unconstitutional limitation

on petitioner’s Fifth and Sixth Amendment rights.

CONCLUSION

Petitioner had a Fifth and Sixth Amendment right to at-

tempt to introduce exculpatory polygraph evidence. Peti-

tioner demonstrated a bona fide need for a continuance to

get an exculpatory polygraph and demonstrated a substan-

tial possibility in fact of producing an exculpatory poly-

> The Judge Advocate General of the Army has certified the

Williams case to the United States Court of Military Appeals.

USCMA Dkt. No. 94-5006/AR. See Article 67(a)(2), U.C.M.J., 10

U.S.C. Section 867(a)(2)(1988).

14

graph, based on the result of the AFOSI administered poly-

graph. Petitioner’s reasonable request for a continuance

was unreasonably and unjustifiably denied. The Military

Judge abused his discretion in denying petitioner’s request

for a continuance. Military Rule of Evidence 707(a) is an

arbitrary exclusionary rule which deprived petitioner of her

United States Constitution Fifth and Sixth Amendment

rights to present evidence on her behalf, and which poten-

tially threatens the United States Constitution Fifth and

Sixth Amendments rights of millions of servicemembers

serving in the United States Armed Forces.

Respectfully submitted,

JAY LINDSEY COHEN

Colonel, United States Air Force

Chief, Appellate Defense Division

Counsel of Record

MARK JEFFREY SIMMS

Captain, United States Air Force

Appellate Defense Counsel

Counsel for the Petitioner

AIR FORCE LEGAL SERVICES AGENCY

Appellate Deferse Division

172 Luke Avenue, Suite 208

Bolling AFB, DC 20332-5113

October 1994

APPENDICES

APPENDIX A

UNITED STATES COURT OF MILITARY APPEALS

USCMA Dkt. No. 93-0089/AF

CMR Dkt. No. S28688

UNITED STATES, APPELLEE

V.

JANIET L. HEYWARD (267-33-8790), APPELLANT

ORDER

On consideration of the petition for grant of review of

the decision of the United States Air Force Court of

Military Review, it is by the Court this 27th day of July,

1994,

ORDERED:

That said petition is hereby granted; and

That the decision of the United States Air Force Court

of Military Review is affirmed.

For the Court,

/s/ John A. Cutts, III

Deputy Clerk of the Court

cc: The Judge Advocate General of the Air Force

Appellate Defense Counsel (PARKS)

Appellate Government Counsel (PETERSON)

(la)

2a

APPENDIX B

UNITED STATES AIR FORCE

COURT OF MILITARY REVIEW

ACM S28688 (f rev)

UNITED STATES

-

STAFF SERGEANT JANIET L. HEYWARD FR267-33-8790

UNITED STATES AIR FORCE

18 October 1993

Sentence adjudged 30 April 1992 by SPCM convened

at Kelly Air Force Base, Texas. Military Judge: Wade

B. Morrison (sitting alone).

Approved sentence: Bad-conduct discharge and

reduction to E-1.

Appellate Counsel for the Appellant: Colonel Terry

J. Woodhouse, Lieutenant Colonel Jay L. Cohen,

and Captain Robert A. Parks.

Appellate Counsel for the United States: Colonel Jef-

fery T. Infelise, Lieutenant Colonel Thomas E.

Schlegel, and Captain Jane M.E. Peterson.

Before

JOHNSON, HEIMBURG, and YOUNG

Appellate Military Judges

ins iain

3a

OPINION OF THE COURT UPON FURTHER REVIEW

Pk OE A

YOUNG, Judge:

On 29 and 30 April 1992, a military judge, sitting as a

special court-martial, convicted appellant of wrongfully

using marijuana and sentenced her to a bad-conduct dis-

charge and reduction to E-1. The case was sent to this

court without assignment of error and, on 23 September

1992, we affirmed the findings and sentence. For the first

time, before the Court of Military Appeals, appellant

raised two issues: 1) Whether the total ban on the admis-

sion of polygraph evidence (Mil. R. Evid. 707) violated ap-

pellant’s right to due process; and 2) whether the military

judge’s decision to deny appellant’s request for continu-

ance based solely upon Mil. R. Evid. 707 deprived appel-

lant of exculpatory evidence which could have been effec-

tively used outside the trial forum. On 22 June 1993, the

Court of Military Appeals set aside our prior decision and

ordered this Court to reconsider the case in light of the two

issues raised by appellant. Upon further consideration, we

affirm.

I. Facts

On 23 January 1992, as part of a random urinalysis in-

spection, appellant provided a urine sample which tested

positive for the presence of metabolites of marijuana. Ap-

| pellant was interviewed by agents of the Air Force Office

of Special Investigations (AFOSI), denied using mari-

juana, and consented to a polygraph. On 21 February

1992, appellant took an AFOSI polygraph exam. After

completing two series of questions, the polygrapher

opined that appellant was not deceptive when she denied

ever “purposely” using marijuana while in the Air Force.

Nevertheless, charges were preferred against appellant on

30 March 1992 and referred to a special court-martial on |

- April 1992. An initial trial date of 17 April was set. Pur-

4a

suant to a 16 April government request, the military judge

granted a delay until 29 April when circuit trial counsel

would be available. To assist in challenging the constitu-

tionality of Mil. R. Evid. 707, and with a view to obtaining

a defense witness, appellant apparently requested the

director of the DoD Polygraph Institute to review her

exam results. On 23 April 1992, appellant’s counsel was

notified by AFOSI that the polygraph results had been in-

validated by the DoD Polygraph Institute and HQ AFOSI

because of “an improper comparison of a test question to

a control question.” The AFOSI polygrapher offered to

retest appellant at the only time available prior to 4

May —0800 on 24 April. Appellant’s counsel declined the

offer. On 27 April, 4 days after notification of the in-

validity of the polygraph exam and 2 days before trial, ap-

pellant’s counsel requested a delay in the trial from 29

April until 6 May so that another polygraph exam could be

performed. In the request, appellant’s counsel acknowl-

edged Mil. R. Evid. 707, but specifically noted her belief

that the rule was unconstitutional. The trial counsel op-

posed the request based on the inadmissibility of poly-

graph evidence. The military judge denied the request.

At trial, appellant renewed her request for a continu-

ance until 4 May so she could take another polygraph

exam. Appellant produced no evidence on the issue, but

made what can be described as an offer of proof in which

her counsel explained her intent to contest the constitu-

tionality of Mil. R. Evid. 707 and why that was not possi-

ble without a continuance. The military judge asked

defense counsel why she rejected the AFOSI offer of a test

on 24 April at 0800. The defense counsel said she had a

pretrial confinement hearing scheduled across town at

|_ackland Air Force Base for that time, and she was unsure

if she would be able to meet and fully discuss the issue with

her client. Appellant’s counsel failed to show she made any

Sa

efforts to reschedule the pretrial confinement hearing,

although she received an unspecified “representation” that

the magistrate was only available on that date. Other than

a vague reference to her preference not to send her client

alone to the polygraph examination, appellant’s counsel

provided no good rationale, under the circumstances, for

not permitting AFOSI to conduct the test without counsel

present and without the possibility of a post-test interview.

The military judge denied this request for a continuance.

Il. Denial of Request for Continuance

A military judge may grant a continuance to any party,

for reasonable cause, for such time as may appear to be

just. Article 40, UCMJ, Granting a continuance is within

the discretion of the military judge, and a denial of such

request will be reversed only for an abuse of discretion.

United States v. Sharp, __ M.J. __ (C.M.A. 1993); United

States v. Menoken, 14M.J. 10, 11 (C.M.A. 1982). To find

the military judge abused his discretion requires more than

a difference of opinion on the ruling. In order to reverse

for an abuse of discretion, we must find the military

judge’s decision was arbitrary, fanciful, clearly

unreasonable, or clearly erroneous. United States v.

Travers, 25 M.J. 61, 62 (C.M.A. 1987). Here, appellant

was given the opportunity to take another Government

polygraph exam before trial. Although the situation may

not have been ideal for the defense, appellant failed to

show adequate cause for rejecting the offer. Under these

circumstances, we find the military judge’s decision was

not arbitrary, fanciful, clearly unreasonable, or clearly er-

roneous. He did not abuse his discretion.

Ili. Mil. R. Evid. 707

Mil. R. Evid. 707 prohibits the admission into evidence

of the results of a polygraph examination and the opinion

6a

of a polygrapher. Appellant claims this rule is an un-

constitutional denial of her Sixth Amendment right to

compulsory process, her Fifth Amendment right to due

process of law, and her right to exculpatory evidence

which could have been used outside the trial forum.

Appellate courts historically have been reluctant to

decide issues which, while interesting and important, are

not ripe for judicial review. United States v. Jones, 26

M.J. 632 (A.F.C.M.R.1988), vacated, 28 M.J. 94

(C.M.A. 1989); United States v. Landes, 17 M.J. 1092,

1093 (A.F.C.M.R. 1984). On the record before us, the

constitutionality of Mil. R. Evid. 707 is not ripe for

review.

Appellant offered no exculpatory polygraph for admis-

sion into evidence; she merely asked for a continuance so

she could obtain one. Whether any resulting polygraph

would have been exculpatory is entirely speculative. The

military judge made no findings or rulings upon the ad-

mission of a particular polygraph result. Thus, there is no

record upon which this court can decide the issue. As

noted above, the Government offered appellant the op-

portunity to take a second polygraph. Appellant failed to

take advantage of that offer, knowing that she would be

unable to get another examination before trial, and ap-

parently, without making any effort to rearrange her

schedule to meet that of the AFOSI polygrapher. Since the

appellant did not, and from the record apparently still

does not, have an exculpatory polygraph examination to

present for admission, we believe the issue is not ripe for

rCVicw.

IV. The Remand

This case originally arrived at this Court for statutory

review on 17 July 1992. In accordance with Rule 15(c) of

:

ele bale

Ta

the Rules of Practice and Procedure, Courts of Military

Review (22 M.J. CXX VII, CX XXII (1985)), appellant had

30 days in which to file any assignments of error and briefs

with this Court. On 11 August 1992, appellant’s appellate

counsel requested an enlargement of time until 18

September 1992 to provide “sufficient opportunity to com-

pletely review and research the issues raised by this record

of trial.” We granted that request. On 18 August 1992, ap-

pellate defense counsel submitted the record of trial to this

court without assignment of error. After our decision ap-

proving the findings and sentence, appellate defense

counsel raised before the Court of Military Appeals the

two issues which are the subject of this remand. There is

no explanation in the record as to why, if appellate defense

counsel thought these errors had merit, they failed to sub-

mit them to this Court during our initial review of the

case. The brief was not due for another month, and ap-

pellate counsel are well aware of our very liberal policy in

granting additional enlargements of time.

By remanding to this Court, the Court of Military Ap-

peals elected to relieve appellant of the consequences of

her failure to comply with the rules of procedure estab-

lished by The Judge Advocates General under Article

66(f), UCMJ, which require the timely filing of issues

before this Court. We believe this practice is ill advised

when, as in this case, there is no evidence that we failed to

fulfill our statutory duties under Article 66(c), UCMJ, and

appellant has failed to show good cause. When the Court

of Military Appeals permits appellants to raise issues for

the first time before them without requiring a showing of

good cause, and returns the case for us to repeat our

review of the case, it impeaches confidence in this Court’s

performance of its statutory duties and provides incentive

to appellate counsel to submit issues piecemeal. This does

8a

an injustice to this appellant, whose case has been delayed

over a year, and to other appellants whose cases, properly

before us, are delayed while we give priority to the re-

mand. The Court of Military Appeals should require ap-

pellants to show good cause before permitting issues to be

raised for the first time at that Court.

The findings and sentence are correct in law and fact;

and no error prejudicial to the substantial rights of ap-

pellant was committed. Articles 59(a), 66(c), UCMJ. Ac-

cordingly, the findings and approved sentence are

AFFIRMED.

Senior Judge JOHNSON and Judge HEIMBURG concur.

[Seal Omitted]

/s/ Naomi D. Williams

Naomi! D. WILLIAMS

Technical Sergeant, USAF

Chief Court Administrator, AFCMR

9a

APPENDIX C

UNITED STATES COURT OF MILITARY APPEALS

USCMA Dkt. No. 93-0089/AF

CMR Dkt. No. 828688

UNITED STATES, APPELLEE

v.

JANIET L. HEYWARD (267-33-8790), APPELLANT

ORDER

On consideration of the petition for grant of review of

the decision of the United States Air Force Court of

Military Review, we note that appellate defense counsel, in

his Supplement to Petition for Grant of Review dated

February 1, 1993, has for the first time on appeal raised

the issue whether Mil. R. Evid. 707, Manual for Courts-

Martial, United States, 1984, which excludes polygraph

evidence, violates an accused’s rights to due process of law

under the Fifth Amendment; and whether the military

judge’s decision to deny appellant’s continuance based

solely upon Mil. R. Evid. 707 deprived her of exculpatory

evidence which could have been effectively used outside

the trial forum. In view of the fact that these issues raised

by appellate defense counsel were not before the Court of

Military Review in its initial consideration of this case, it is

by the Court this 22nd day of June, 1993,

ORDERED:

10a

That the decision of the United States Air Force Court

of Military Review is set aside. The record of trial is

returned to the Judge Advocate General of the Air Force

for remand to that court for consideration of the issues

raised for the first time before us. Following these pro-

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

10 USC § 867(a) (1989), will apply.

For the Court,

/s/ John A. Cutts, III

Deputy Clerk of the Court

cc: The Judge Advocate General of the Air Force

Appellate Defense Counsel (PARKS)

Appellate Government Counsel (McDADE)

lla

APPENDIX D

UNITED STATES AIR FORCE

COURT OF MILITARY REVIEW

ACM 828688

UNITED STATES

Ve

STAFF SERGEANT JANIET L. HEYWARD FR267-33-8790

UNITED STATES AIR FORCE

23 September 1992

Sentence adjudged 30 April 1992 by SPCM convened

at Kelly Air Force Base, Texas. Military Judge: Wade

B. Morrison (sitting alone).

Approved sentence: Bad-conduct discharge and

reduction to E-1.

Appellate Counsel for the Appellant: Major Mary C.

Yastishock, Major John V. Sullivan, and Captain

Marc A. Fox.

Appellate Counsel for the United States: Lieutenant

Colonel Brenda J. Hollis.

Before

O’HAIR, SNYDER, and GRUNICK

Appellate Military Judges

PER CURIAM:

The approved findings of guilty and the sentence are

correct in law and fact and, on the basis of the entire

record, are

AFFIRMED.

[Seal Omitted]

/s/ Nancy Howell

NANCY HOWELI

Document Examiner

Court of Military Review

US GOVERNMENT PRINTING OFFICE. 1994 — 382.750/87052