                       UNITED STATES, Appellee

                                    v.

                  Anthony W. WARNER, Senior Airman
                      U.S. Air Force, Appellant

                              No. 04-0119

                         Crim. App. No. 34716


       United States Court of Appeals for the Armed Forces

                       Argued November 8, 2004

                     Decided September 30, 2005

GIERKE, C.J., delivered the opinion of the Court, in which
EFFRON, BAKER, and ERDMANN, JJ., joined. CRAWFORD, J. filed a
dissenting opinion.

                                 Counsel

For Appellant: Captain James M. Winner (argued); Colonel
Beverly B. Knott and Major Terry L. McElyea (on brief).

For Appellee: Captain Kevin P. Stiens (argued); Colonel LeEllen
Coacher and Lieutenant Colonel Robert V. Combs (on brief).

Military Judge:   Robert. G. Gibson Jr.


       This opinion is subject to revision before final publication.
United States v. Warner, No. 04-0119/AF


      Chief Judge GIERKE delivered the opinion of the Court.

                               INTRODUCTION

     Article 46 of the Uniform Code of Military Justice (UCMJ)

commands that the “trial counsel, the defense counsel, and the

court-martial shall have equal opportunity to obtain witnesses

and other evidence . . . .”1       This case involves the application

of Article 46 to the designation of expert consultants to aid

the opposing parties.      We hold that the Government violated

Article 46 when it assigned the Air Force’s premier shaken baby

syndrome expert to itself, while denying the defense’s request

for an adequately-qualified expert and instead providing the

defense with a consultant with no apparent experience in the

area of shaken baby syndrome.

                                 BACKGROUND

      Appellant was tried by a general court-martial consisting

of officer and enlisted members.          Appellant was charged with two

specifications of aggravated assault on his infant son in

violation of Article 128, UCMJ.2          He pleaded not guilty.   The

court-martial found Appellant guilty of the lesser included

offense of assault and battery as to the first specification and

found him not guilty of the second.3


1
  10 U.S.C. § 846 (2000).
2
  10 U.S.C. § 928 (2000).
3
  The members sentenced Appellant to a bad-conduct discharge,
confinement for eighteen months, forfeiture of all pay and
allowances, and reduction to pay grade E-1. The convening

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United States v. Warner, No. 04-0119/AF


     The charges grew out of an incident that occurred while

Appellant was caring for his son, BT, when he was seventy-seven

days old.    Appellant was home on the morning of August 22, 2000,

preparing for a meeting with his commanding officer that could

potentially lead to nonjudicial punishment.         As Appellant ironed

his uniform, his wife left the house to borrow five dollars from

her parents so Appellant could get a haircut before the meeting.

She was gone for about one hour.          When Appellant’s wife

returned, she found BT in her husband’s arms.         BT’s “arms and

legs were slumped over.      He was crying and no tears were coming

out of his eyes,” and he was “hardly moving at all.”         As the Air

Force Court explained, Appellant’s wife asked what happened.

Appellant replied that he was holding BT “in his left arm with



authority approved the sentence as adjudged. The Air Force
Court of Criminal Appeals affirmed. United States v. Warner, 59
M.J. 573, 583 (A.F. Ct. Crim. App. 2003). We then granted
review. United States v. Warner, 60 M.J. 124 (C.A.A.F. 2004).
The two granted issues were:

      I.    WHETHER THE MILITARY JUDGE ERRED BY DENYING
            APPELLANT’S MOTION FOR APPROPRIATE RELIEF SEEKING A
            FULLY COMPETENT EXPERT CONSULTANT.

      II.   WHETHER THE GOVERNMENT VIOLATED ARTICLE 46, RULE FOR
            COURTS-MARTIAL 703, AND THE DUE PROCESS CLAUSE OF THE
            FIFTH AMENDMENT TO THE U.S. CONSTITUTION BY ALLOWING
            THE ASSISTANT TRIAL COUNSEL TO SELECT THE DEFENSE
            EXPERT CONSULTANT AND PROVIDE ADVERSE EX PARTE ADVICE
            TO THE CONVENING AUTHORITY CONCERNING THE DEFENSE
            REQUEST FOR AN EXPERT CONSULTANT.

Because we rule for Appellant on Issue I, we need not reach
Issue II.


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United States v. Warner, No. 04-0119/AF


the baby’s head facing him while he ironed with his right.        He

said that while holding BT in this manner, the baby ‘sprung’

from his chest.     He said he was able to catch BT mid-waist

before he hit the ground.”4       Appellant told his wife that he had

already called the emergency room and was advised to watch BT

and call back if his condition worsened.

       Appellant’s wife remained concerned because BT was

“breathing strange and there were no tears coming out of his

eyes and he was real pale looking.”       She called a civilian

hospital.    While she was on the phone, Appellant interrupted her

and told her that at one point while she was gone, BT’s heart

had stopped.    In light of this information, the civilian medical

personnel advised Appellant’s wife to take BT to the nearest

emergency room, which was the base medical facility.       Appellant

“resisted the idea of going, but after arguing with his wife

about it for 15 minutes, he agreed to go.”5       Before they left,

Appellant’s wife started to change BT’s clothes and diaper.

Appellant told her, “[B]efore you take the jammies off, you are

going to see something, and don’t freak out when you see it . .

. .    There are bruises up and down [BT’s] side.     Don’t freak out

when you see them.”

       At the emergency room, Appellant “repeated his explanation



4
    Warner, 59 M.J. at 575.
5
    Id.

                                      4
United States v. Warner, No. 04-0119/AF


as to how the bruises occurred.           Health care providers examined

BT and concluded the baby’s condition simply warranted at-home

observation.”6

       Six days later, Appellant’s wife took BT “to a routine

checkup at the on-base medical facility.          The examining

physician expressed some concerns about the child’s appearance

and ordered additional testing . . . .          The tests revealed BT

had spots of bleeding on his brain, and the child was admitted

for further evaluation.”7

       Air Force Office of Special Investigations agents then

interviewed Appellant, who “provided verbal and written

statements.”8

       [Appellant] told the agents he had felt stressed out
       over his meeting with his commander. While his wife
       was gone, BT was sitting in a chair on the floor and
       started to cry. He admitted he went over to the chair
       and “quite aggressively” pulled BT out of the chair by
       his mid-section and brought him to his shoulder. He
       told the agents the baby’s chin hit his shoulder,
       causing the baby’s head to tilt back. He described
       the baby’s reaction as “surprised.” He said he then
       changed BT’s clothes and diaper, but did not notice
       any bruising. He told agents he then went back to
       unplug the iron and was holding BT on his left forearm
       face down when BT kicked off his chest and started to
       fall. The appellant said he dropped the iron and
       caught BT about the abdomen. In his written
       statement, the appellant concluded that his “actions
       in pulling [the baby] aggressively against my chest is
       [sic] probably the reason he sustained the bruising
       inside his head” and “what gave him the bruises on his
       abdomin [sic].” He specifically denied shaking BT.

6
    Id.
7
    Id. at 576.
8
    Id.

                                      5
United States v. Warner, No. 04-0119/AF



               The appellant told his wife a similar version of
          events that evening in their bedroom. He got on his
          knees and said, “I have not been completely honest
          with you.” He went on to describe how BT was in his
          “bouncy chair” and crying and there came a point when
          he “couldn’t take the crying no more. So I took him
          in one big swipe to my shoulder.” He said that this
          grabbing motion was in addition to catching BT in mid-
          air when BT “sprung” from his arms.

               The appellant made an additional statement to a
          co-worker in the fall of 2000. . . . The appellant
          [said] that his son had injuries consistent with
          shaking a baby. The appellant told his co-worker the
          injuries were caused when he went over to a couch to
          pick up BT and the baby squirmed out of his arms,
          falling to the couch and hitting the floor.9

          Before the charges against Appellant were referred to the

general court-martial, the trial counsel obtained Lieutenant

Colonel (Dr.) Stephen Boos as a Government expert assistant.

Dr. Boos was an Air Force pediatrician with considerable

experience concerning shaken baby syndrome.      In the words of the

trial counsel’s opening statement, Dr. Boos “is the only

fellowship-trained expert on child abuse in the Air Force, and

one of the few fellowship-trained experts in the United States.”

          Also before referral, Dr. Boos recommended to the trial

counsel that another Air Force physician, Lieutenant Colonel

(Dr.) Susan Brown, be appointed as the defense’s expert

consultant.      On March 15, 2001, the day before charges were

referred, the trial counsel sent an e-mail to the defense

counsel proposing Dr. Brown’s appointment as a defense expert.

9
    Id.

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United States v. Warner, No. 04-0119/AF


      The following day, charges were referred and the defense

asked the convening authority to fund the appointment of Dr.

Wilbur Smith, a civilian pediatric radiologist, as a defense

expert consultant.10     The defense request noted that the

Government had sought to provide Dr. Brown to the defense.          The

defense opposed that suggestion, observing that Dr. Boos had

more extensive experience concerning “infant physical abuse

(e.g., ‘shaken baby syndrome’) compared to Dr. Brown.”        Dr.

Brown specialized in adolescents.

      Before appointing an expert consultant for the defense, the

convening authority received several documents concerning the

defense request that were neither attached to the record nor

revealed to the defense.       While these documents were not

attached to the record and the Air Force Court denied a defense

motion for their production, they apparently included a

memorandum from the trial counsel to the convening authority

recommending denial of the defense request for Dr. Smith.

      Despite the defense’s request for a different expert, the

convening authority appointed Dr. Brown as the defense expert.

      In a pretrial motion, the defense asked the military judge

to order the convening authority to appoint the defense’s


10
  As this request to the convening authority and the later
litigation before the military judge demonstrate, the dissent is
incorrect when it asserts, “[t]he defense made no request for
any expert witness.” United States v. Warner, __ M.J. __, __
(24)(C.A.A.F. 2005)(Crawford, J., dissenting).

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United States v. Warner, No. 04-0119/AF


preferred expert consultant instead.          The motion expressly

relied on, among other authorities, Article 46’s guarantee that

the Government and the defense shall have equal opportunity to

obtain witnesses and other evidence.          The defense submitted a

supporting affidavit from Dr. Brown.          The affidavit stated that

“[i]n the area of child abuse, I have the most direct clinical

experience with child sexual abuse.          I have not, however, been a

consultant or witness at trial for Shaken Baby Syndrome.”            Dr.

Brown added that while she felt “competent in this area of child

abuse, specifically, Shaken Baby Syndrome, I am not the

equivalent of Dr. Stephen Boos.           There are other physicians who

are better qualified than me when it comes to ‘Shaken Baby’

cases.”    The motion also averred that based on the defense

counsel’s conversations with Dr. Brown, the defense counsel

believed she would merely “defer” to the opinions of Dr. Boos,

the Government expert.      The motion specifically alleged that

while Dr. Brown “is able to advise the [d]efense generally on

the timing of the injuries,” she could not advise the defense

concerning “possible alternative explanations.”          These averments

are contained in the defense motion’s fact section.          In his

original ruling on the motion, the military judge’s “findings”

included the following:      “For purposes of this motion, the

defense statement of facts is accepted.”11


11
     A curious aspect of this case is the disagreement between the

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United States v. Warner, No. 04-0119/AF


     The military judge did not order the appointment of the

requested civilian defense expert, but, due to Dr. Brown’s

unavailability on the scheduled trial date, ordered the

convening authority to appoint a replacement expert.    A short

time later, when Dr. Brown’s schedule changed to eliminate the

conflict, the Government sought reconsideration of the military

judge’s order.     The military judge then rescinded his previous

order and found that Dr. Brown was competent to serve as the

defense’s shaken baby syndrome consultant.




majority and the dissenter as to the factual predicate relating
to Issue I. This disagreement reaffirms the wisdom of Senior
Judge Everett in reminding everyone involved in a military
justice case (litigants, judges, and staff judge advocates) of
the primary task to preserve the facts when he said, “‘Always
salt down [preserve] the facts first; the law will keep.’”
United States v. Haney, 45 M.J. 447, 448 (C.A.A.F. 1996)(quoting
Erickson v. Starling, 235 N.C. 643, 71 S.E. 2d 384, 395-96 (N.C.
1952)). In the present case, it is the view of the majority
that the operative facts were preserved by the military judge
expressly adopting the defense’s statement of facts in the
military judge’s own findings. We therefore disagree with the
dissent when it alleges that these facts of record are “not
before this Court as anything other than unsupported argument .
. . ‘averred’ in written pretrial motions. . . .” Warner, __
M.J. at __ (20)(Crawford, J., dissenting); see also id. at 4,
11, 27-28. It is the majority view that the military judge’s
order on the Government’s reconsideration motion rescinded the
earlier order, but that did not obligate the defense to reprove
matters that the military judge had previously found as fact.
The military judge rescinding the earlier order did not wipe
clean the factual slate in the record of the defense request for
expert assistance. To hold otherwise would be remarkably
cumulative and problematic, as it would require a potentially
lengthy evidentiary hearing to reprove facts that the military
judge had already expressly adopted as the operative facts for
the defense request for expert assistance.

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United States v. Warner, No. 04-0119/AF


     Dr. Boos testified as a Government witness at trial.

Neither Dr. Brown nor any other medical expert testified for the

defense.   At the conclusion of the fully contested trial, the

members found Appellant not guilty of one of the aggravated

assault specifications and, as to the other, guilty of the

lesser included offense of assault and battery on a child under

sixteen.

                                 DISCUSSION

     A.    Article 46

     This case involves a violation of both the letter and the

spirit of Article 46.      Under Article 46, the defense’s

“opportunity to obtain witnesses and other evidence” is to be

equal to the Government’s.       But in this case, the Government had

already secured its expert witness before the defense had an

opportunity to seek its own.       The Government exploited this

advantage by securing one of the Air Force’s preeminent experts

concerning shaken baby syndrome as its own witness.

     Article 46 deals with the “opportunity to obtain witnesses

and other evidence.”      While the defense request in this case was

for an expert consultant rather than an expert witness,12 Article

46 is still applicable.      One important role of expert




12
  See generally United States v. Langston, 32 M.J. 894
(A.F.C.M.R. 1991) (discussing distinction between expert
consultants and expert witnesses).

                                     10
United States v. Warner, No. 04-0119/AF


consultants is to help counsel develop evidence.13      Even if the

defense-requested expert consultant would not have become an

expert witness, he would have assisted the defense in

evaluating, identifying, and developing evidence.      Another

important function of defense experts is to test and challenge

the Government’s case.      The denial of a defense expert with

professional qualifications reasonably comparable to those of

the Government’s expert interfered with this function.

     We have held that “[a]n accused is entitled to expert

assistance provided by the Government if he can demonstrate

necessity.”14    As the lower court observed, “there has been no

dispute in this case as to the appellant’s need for some type of

expert assistance.”15     Rather, the issue in this case is whether

the expert the Government provided to the defense was an

adequate substitute for the defense-requested civilian expert.

     Of course, neither the convening authority nor the military

judge was required to provide the defense with the particular

expert it requested.16      But because expert assistance was




13
   See Janet Weinstein, Coming of Age: Recognizing the
Importance of Interdisciplinary Education in Law Practice, 74
Wash. L. Rev. 319, 325 (1999).
14
   United States v. Gunkle, 55 M.J. 26, 31 (C.A.A.F. 2001).
15
   Warner, 59 M.J. at 578.
16
   United States v. Calhoun, 49 M.J. 485, 487-88 (C.A.A.F. 1998).

                                     11
United States v. Warner, No. 04-0119/AF


necessary for the defense, the Government could deny the

requested expert only if it provided an “adequate substitute.”17

     Expert assistants are frequently detailed to the parties

litigating contested courts-martial.      And “[w]ith the rapid

growth of forensic science techniques, it has become

increasingly apparent that complex cases require more than

general practitioners.”18      The trial counsel appeared to

recognize that reality by securing a leading shaken baby

syndrome expert for the prosecution team.      Yet a generalist with

no apparent expertise in that specific area was assigned as the

defense consultant.

     In affirming the military judge’s ruling, the Air Force

Court wrote that “Dr. Brown’s impressive credentials belie the

appellant’s averment that she had no experience and training in

‘shaken baby syndrome.’”19      Yet neither the Air Force Court nor

the dissent has identified anything in the record demonstrating

that Dr. Brown had any experience in the area of shaken baby

syndrome.20   On the contrary, the Air Force Court explicitly


17
   United States v. Ford, 51 M.J. 445, 455 (C.A.A.F.
1999)(quoting Rule for Courts-Martial 703(d))(quotation marks
omitted).
18
   United States v. McAllister, 55 M.J. 270, 275 (C.A.A.F. 2001).
19
   Warner, 59 M.J. at 579.
20
   The dissent takes issue with our statement that nothing in the
record demonstrates that Dr. Brown had experience in the area of
shaken baby syndrome. Warner, __ M.J. at __ (20-21) (Crawford,
J., dissenting). But the dissent argues to the contrary by
relying on Dr. Brown’s affidavit, which does not claim any
experience in the area of shaken baby syndrome. The affidavit

                                     12
United States v. Warner, No. 04-0119/AF


acknowledged that none of the previous military justice cases on

which Dr. Brown worked “involved shaken baby syndrome.”21     The

Government similarly argues that Dr. Brown was “an expert with

impressive credentials,” but offers no credentials or experience

concerning shaken baby syndrome -- the area of expertise

relevant to this case and an area in which the Government expert

specialized.    This failure is particularly striking because it

was the Government who proposed and obtained Dr. Brown as a

defense expert.     The Government would seem to be well positioned

to call attention to any special expertise that Dr. Brown had in

this area, yet the Government has not done so.     Nor have we

found any indication in the record that Dr. Brown had any

experience dealing with shaken baby syndrome.

     The Government, however, argues that it was sufficient to

provide a generalist to the defense.      Quoting our opinion in

United States v. Short, the Government argues, “All that is

required is that competent assistance be made available.”22        That

quotation originates from our decision in United States v.


merely reflects that Dr. Brown “feel[s] competent in this area
of child abuse.” But that belief could have been based upon the
availability of treatises on the subject unaccompanied by actual
training. It neither claims nor demonstrates that Dr. Brown has
experience in this area. We also take this opportunity to
emphasize that this opinion implies no criticism of Dr. Brown.
There is no reason to doubt that she performed her duties
conscientiously. But, as she herself acknowledged, her
qualifications in this area were not reasonably equivalent to
Dr. Boos’s.
21
   Id.


                                     13
United States v. Warner, No. 04-0119/AF


Burnette,23 where it was immediately followed by a citation to

the Supreme Court’s opinion in Ake v. Oklahoma.24    Ake is, of

course, a civilian case based on the “Fourteenth Amendment’s due

process guarantee of fundamental fairness.”25    The Court applied

that fundamental fairness guarantee to require that

       when a defendant demonstrates to the trial judge that
       his sanity at the time of the offense is to be a
       significant factor at trial, the State must, at a
       minimum, assure the defendant access to a competent
       psychiatrist who will conduct an appropriate
       examination and assist in evaluation, preparation, and
       presentation of the defense.26

The Court then cautioned, “This is not to say, of course, that

the indigent defendant has a constitutional right to choose a

psychiatrist of his personal liking or to receive funds to hire

his own.”27    So the legal issue in Short, Burnette, and Ake was

distinct from the issue in this case, which concerns Article 46.

Providing the defense with a “competent” expert satisfies the

Government’s due process obligations, but may nevertheless be

insufficient to satisfy Article 46 if the Government’s expert

concerning the same subject matter area has vastly superior

qualifications.

       Given the facts of this case, Article 46 requires that an

“adequate substitute” for Dr. Smith have qualifications

22
     50 M.J. 370, 373 (C.A.A.F. 1999).
23
     29 M.J. 473, 475 (C.M.A. 1990).
24
     470 U.S. 68 (1985).
25
     Id. at 76.
26
     Id. at 83.


                                     14
United States v. Warner, No. 04-0119/AF


reasonably similar to those of the Government’s expert, Dr.

Boos.      Indeed this “adequate substitute” standard is stated in

Rule for Courts-Martial (R.C.M.) 703(d).        The absence of such

parity opens the military justice system to abuse, because the

Government in general, and -- as this case demonstrates -- the

trial counsel in particular, may play key roles in securing

defense experts.     Appellant’s brief analogizes this situation to

“permitting a Major League baseball manager to choose the

opposing pitcher in the final game of the World Series.”

Article 46 is a clear statement of congressional intent against

Government exploitation of its opportunity to obtain an expert

vastly superior to the defense’s.         Requiring that an “adequate

substitute” for a defense-requested expert have professional

qualifications at least reasonably comparable to those of the

Government’s expert is a means to carry out that intent where

the defense seeks an expert dealing with subject matter similar

to a Government expert’s area of expertise and where the defense

expert is otherwise adequate for the requested purpose.

        Under the approach of the lower court and the dissent, the

prosecution would always be free to secure preeminent experts

for itself while detailing minimally competent experts to the

defense.     Article 46 reveals that Congress intended a more even

playing field.


27
     Id.

                                     15
United States v. Warner, No. 04-0119/AF


     There is no litmus test standard for determining whether a

substitute for a defense-requested expert is adequate.       Rather,

this is a fact-intensive determination that is committed to the

military judge’s sound discretion.        In this case, the substitute

clearly did not meet this standard.

     The relevant area of expertise in this case concerned

whether injuries to a seventy-seven-day-old baby had been caused

by shaking.    The Government’s expert was a pediatrician with

extensive experience and training in the specific area of shaken

baby syndrome.     The trial counsel exploited the Government

expert’s credentials by telling the members that he “is the only

fellowship-trained expert on child abuse in the Air Force, and

one of the few fellowship-trained experts in the United States.”

The defense expert, on the other hand, specialized in

adolescents -- an area of specialization obviously far less

relevant to determining the cause of the seventy-seven-day-old

victim’s injuries.     She had no apparent experience with shaken

baby cases.

     In rejecting the defense’s challenge to the proffered

substitute expert, neither the military judge nor the Air Force

Court considered the necessity to ensure that the “adequate

substitute” offered by the Government had professional

qualifications reasonably comparable to those of the

Government’s expert.      Both of those rulings constituted an abuse



                                     16
United States v. Warner, No. 04-0119/AF


of discretion because they were influenced by an erroneous view

of the law.28    The military judge erred by denying the defense’s

motion for a more qualified expert assistant.    We do not hold

that the military judge was required to make Dr. Smith available

to the defense.     Rather, we hold that the defense was entitled

to an expert who could adequately substitute for Dr. Smith and

who had qualifications reasonably comparable to those of the

Government expert who testified in the same subject area.      Dr.

Brown did not satisfy that requirement.

     The dissent complains that our holding is “completely

unsupported by any citation to supporting authority.”29      On the

contrary, our holding cites, and rests on, the plain wording of

Article 46.     That plain language is the best source for

discovering Congress’s intent.30


28
   See United States v. Sullivan, 42 M.J. 360, 363 (C.A.A.F.
1995) (an appellate court “will reverse for an abuse of
discretion if the military judge’s findings of fact are clearly
erroneous or if his decision is influenced by an erroneous view
of the law”).
29
   Warner, __ M.J. at __ (15)(Crawford, J., dissenting).
30
   See, e.g., Lamie v. United States Trustee, 540 U.S. 526, 536
(2004) (“We should prefer the plain meaning since that approach
respects the words of Congress. In this manner we avoid the
pitfalls that plague too quick a turn to the more controversial
realm of legislative history.”); INS v. Cardoza-Fonseca, 480
U.S. 421, 433 n.12 (1987) (noting “the strong presumption that
Congress expresses its intent through the language it
chooses”)(citations and quotation marks omitted). The dissent
objects that we do not cite any case law supporting our
interpretation of Article 46. Warner, __ M.J. at __ (15)
(Crawford, J., dissenting). But case law must comport with
Article 46, not vice versa. Moreover, this appears to be an
issue of first impression. We must turn to the primary source

                                     17
United States v. Warner, No. 04-0119/AF


     The dissent’s discussion of the Sixth Amendment is

inapposite.    Congress was free to, and did, adopt a more

protective statutory system for military accused than the

Constitution provides for civilians in a criminal trial.31    Nor

is it surprising that an analysis of Article 46 might yield

results different from those suggested by the Sixth Amendment,

federal statutes, or the Federal Rules of Criminal Procedure,

because the language in those authorities differs from that of

Article 46.

     Additionally, in construing Article 46, we cannot simply

defer to the rules contained within the Manual for Courts-

Martial (MCM).     As a congressional statute, Article 46 prevails


of the statute, rather than case law, to resolve it. Finally,
while we need not rely on case law to support our interpretation
of Article 46’s plain language, we note that the dissent cites
no case law inconsistent with today’s holding. The dissent
cites four cases that it contends this case “implicitly
modifies.” Id. at __ (3-4 n.7). Three of the four cases do not
even cite Article 46. United States v. Gonzalez, 39 M.J. 459
(C.A.A.F. 1994); United States v. Ndanyi, 45 M.J. 315 (C.A.A.F.
1996); Ford, 51 M.J. 445. The fourth, United States v. Garries,
22 M.J. 288 (C.M.A. 1986), concerned a military judge’s denial
of a defense motion for $1,500 for investigative assistance
after the defense had already been offered, and declined, the
services of an Air Force investigator operating under an order
of confidentiality. There is no inconsistency between those
opinions and this case.
31
   “In defining the rights of military personnel, Congress was
not limited to the minimum requirements established by the
Constitution, and in many instances, it has provided safeguards
unparalleled in the civilian sector.” United States v. Mapes,
59 M.J. 60, 65 (C.A.A.F. 2003) (quoting United States v.
McGraner, 13 M.J. 408, 414 (C.M.A. 1982)(quotation marks
omitted)); see, e.g., Francis A. Gilligan, The Bill of Rights



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United States v. Warner, No. 04-0119/AF


over any limiting interpretation of an MCM provision.32       To the

extent that Article 46 provides rights beyond those contained

within R.C.M. 703, it is our judicial duty to enforce the

statutorily-established rights.

     This opinion applies the plain meaning of a congressional

statute to the facts of this case.        That task is the very

essence of judging.      We are not applying a principle today that

did not exist when this case was tried.       Article 46 was enacted

in 1950.33    Had the military judge applied the plain meaning of

Article 46, he would have recognized that Dr. Brown was not

sufficiently qualified to adequately serve as a substitute

expert in light of the prosecution’s retention of Dr. Boos as

its expert.

     Finally, the dissent questions Dr. Smith’s expertise in an

apparent attempt to suggest that Dr. Brown was no less qualified

than Dr. Smith, so Dr. Brown was an adequate substitute.34        But

as the record establishes and other appellate courts have found,

Dr. Smith is a recognized expert in the area of shaken baby

syndrome.




and Service Members, 1987 Army Law. 3, 10 (Dec. 1987)
(servicemembers’ rights broader than constitutionally required).
32
   See, e.g., United States v. Swift, 53 M.J. 439, 451 (C.A.A.F.
2000).
33
   Act of May 5, 1950, ch. 169, § 1 (Article 46), 64 Stat. 122
(current version codified at 10 U.S.C. § 846 (2000)).
34
   Warner, __ M.J. at __ (12) (Crawford, J., dissenting).

                                     19
United States v. Warner, No. 04-0119/AF


      As his curriculum vitae demonstrates, Dr. Smith had

both published and lectured in the specific area of shaken

baby syndrome, as well as such relevant areas as diagnosing

head injuries, head injuries in child abuse, imaging in

child abuse, and pediatric imaging.

      The statement of facts in Appellant’s motion, which the

military judge’s original findings expressly accepted, also

establishes that Dr. Smith “has extensive experience in

diagnosing head trauma in infants.        He has the training and

experience in evaluating cases like [BT’s].”

     Given Dr. Smith’s impressive credentials, it is not

surprising that in cases dealing with shaken baby syndrome, the

Air Force Court of Criminal Appeals, the Missouri Court of

Appeals, and Justice Toal of the South Carolina Supreme Court

have noted his expertise.35       Like Dr. Boos, Dr. Smith was clearly


35
  See United States v. Stanley, 60 M.J. 622, 625 (A.F. Ct. Crim.
App. 2004) (“Dr. Wilbur Smith, an expert in radiology and SBS
[Shaken Baby Syndrome], also testified.”); United States v.
White, No. ACM 31474, 1996 CCA LEXIS 212, at *3-*4 (A.F. Ct.
Crim. App. July 12, 1996) (“Doctor Wilbur L. Smith, Professor of
Pediatrics and Radiology, University of Iowa, a recognized
expert in child abuse, testified that shaken baby syndrome is a
syndrome in which an infant is shaken violently to and fro with
such force that the acceleration and deceleration and
gravitational forces cause significant brain injury.”); State v.
Candela, 929 S.W.2d 852, 860 (Mo. Ct. App. 1996) (“Dr. Smith and
Dr. Alexander, experts on shaken infant syndrome, testified
after Dr. Case.”); State v. Cutro, 504 S.E.2d 324, 331 (S.C.
1998) (Toal, J., dissenting) (“Dr. Wilbur Smith, Jr. also
testified. As an expert in pediatric radiology and child abuse,
he was, at the time of the trial, one of only 30 or fewer
physicians in the country who were exam-certified in the field.

                                     20
United States v. Warner, No. 04-0119/AF


a highly qualified expert in the field of shaken baby syndrome.

Dr. Brown was not an adequate substitute.36

     B.   Prejudice

     In this case, the nature of the legal error -- the denial

of a sufficiently qualified expert -- interferes with

Appellant’s ability to demonstrate prejudice.    The Army Court of

Criminal Appeals has recently referred to this situation as “a

classic military defense counsel dilemma.”37    The Army Court

explained:

      The best way to articulate and explain the need for an
      expert is by using just such an expert to describe
      their evidence analysis and development process. But
      experts, when not already employed by the government,
      charge fees for their services, and detailed defense
      counsel normally do not have access to money to pay
      for such initial services, in order to obtain
      preliminary consultation or evaluation services.38

     This “military defense counsel dilemma” also explains why

the defense never requested Dr. Smith as an expert witness.

Until the defense had obtained the funds to consult with Dr.

Smith, it was unable to determine whether his testimony would



He stated that because of the evidence of the retinal
hemorrhages, the subdural hematomas, and subarachnoid
hemorrhages, ‘there is no question [that] there is no other
medical diagnosis’ than shaken baby syndrome.”).
36
   We observe that not only does the record fail to establish Dr.
Brown as an expert with experience in shaken baby syndrome, but
we have not identified any other appellate court that has either
recognized or relied on her as an expert in this area.
37
   United States v. Kreutzer, 59 M.J. 773, 777 n.4 (A. Ct. Crim.
App. 2004), aff’d, 61 M.J. 293 (C.A.A.F. 2005).
38
   Id.


                                     21
United States v. Warner, No. 04-0119/AF


have been helpful or harmful.        Consulting with an expert will

often be a necessary precondition to establishing the expert’s

necessity as a witness.      But in this case, the defense never had

an opportunity to consult with Dr. Smith or a substitute expert

with professional qualifications reasonably comparable to Dr.

Boos’s.    The Government, on the other hand, labors under no

similar burden to demonstrate necessity before securing its own

experts.

     We will not adopt a prejudice standard that functions as a

self-defeating Catch-22.39      Rather, we will presume prejudice in

this case where:     (1) the Government denied the defense’s

request for an expert and instead provided the defense with a

substitute expert of its choice; (2) the Government had obtained

an expert in the same subject matter area for itself; (3) the

defense challenged the relative qualifications of the substitute

expert; (4) the military judge denied a defense motion seeking

an order requiring the originally-requested expert to be

detailed to the case; and (5) the substitute expert provided by

the Government was not adequate because her professional

qualifications concerning shaken baby syndrome were not




39
  Catch-22 is defined as a “problematic situation for which the
only solution is denied by a circumstance inherent in the
problem or by a rule.” Webster’s Ninth New Collegiate
Dictionary 215 (9th ed. 1991). The origin of the phrase is
found in the novel Catch-22 (1961) by Joseph Heller. Id.

                                     22
United States v. Warner, No. 04-0119/AF


reasonably comparable to those of the Government’s expert.40

     While the Government can attempt to overcome that

presumption of prejudice, it has not done so here.       The

specification of which Appellant was convicted, as excepted by

the members, alleged that on or about August 22, 2000, Appellant

assaulted BT “by grabbing and shaking him with his hands.”         That

conviction may well have been influenced by Dr. Boos’s extensive

testimony, during which he opined that BT’s “injuries appear to

have occurred from either extremely vigorous shaking, severe

shaking beyond what you would expect to do to a normal baby,

something that people would recognize as potentially harmful or

from [BT] having his head suddenly decelerated probably by being

swung against a surface.”       The military judge’s erroneous denial

of the defense motion for a more qualified expert consultant

left the defense without the adequate tools to analyze and

possibly challenge or rebut that opinion.       Accordingly, the

members’ finding that Appellant committed an assault and battery

must be reversed.

                                  DECISION

     The decision of the United States Air Force Court of

Criminal Appeals is reversed.        The findings of guilty and the


40
  By listing these factors that were present in this case, we do
not mean to imply that all must be present to warrant a
presumption of prejudice where the Government has violated
Article 46.


                                     23
United States v. Warner, No. 04-0119/AF


sentence are set aside.      The record of trial is returned to the

Judge Advocate General of the Air Force.     A rehearing on the

findings and the sentence is authorized.




                                     24
United States v. Warner, 04-0119/AF


       CRAWFORD, Judge (dissenting):

       I cannot embrace the view of the law, the facts, or the

role of this Court that inheres in the majority’s conclusions.

Consequently, I must respectfully, but emphatically dissent.

                                 LAW

       When enacted in 1950, Article 46, Uniform Code of Military

Justice (UCMJ),1 provided, as it does today:

       The trial counsel, [the] defense counsel, and the
       court-martial shall have equal opportunity to obtain
       witnesses and other evidence in accordance with such
       regulations as the President may prescribe. Process
       issued in court-martial cases to compel witnesses to
       appear and testify and to compel the production of
       other evidence shall be similar to that which courts
       of the United States having criminal jurisdiction may
       lawfully issue and shall run to any part of the United
       States, its Territories, [Commonwealths,] and
       possessions.

       Quoting only the first clause of this statute,2 the majority

concludes that Congress expressly intended each accused at

court-martial to enjoy a statutory entitlement3 to an expert

consultant with professional qualifications “reasonably

comparable to those of the Government expert.”

       I find no such intent in either the language or history of

Article 46.    I do not regard as surplusage the clause “in

1
  Act of May 5, 1950, ch. 169, § 1 (Article 46), 64 Stat. 122
(current version codified at 10 U.S.C. § 846 (2000).
2
    United States v. Warner, __ M.J. __, __ (2)(C.A.A.F. 2005).
3
  As distinct from one arising under the United States
Constitution, Supreme Court precedent, or any other source.
United States v. Warner, 04-0119/AF


accordance with such regulations as the President may

prescribe.”   And I believe we have no power to usurp the

President’s authority to promulgate regulations in

implementation of statute.   I much prefer to consider and apply

the rights, benefits, and restrictions made applicable to

government funding of defense experts by the Sixth Amendment,

Article 46, Supreme Court precedent, the Federal Rules of

Criminal Procedure, and our own decisions over the past half

century in determining whether the military judge abused his

discretion in this case.   I conclude that he did not, and I

would affirm.

     In one of our earliest examinations of Article 46, this

Court began by discussing the Sixth Amendment, then quoting the

first clause of Article 46 itself, followed by a partial

recitation of Manual for Courts-Martial, United States

(MCM)(1951 ed.) ¶ 115a, and noting that “this Article of the

Code, and the regulations prescribed by the President in

furtherance thereof, generally conform with the rules and

procedure followed in civilian Federal courts.”4

     After quoting the entirety of Fed. R. Crim. P. 17(b),5 we

concluded by saying:   “It is readily apparent that the only


4
  United States v. Sweeney, 14 C.M.A. 599, 602-03, 34 C.M.R. 379,
382-83 (1964).
5
  “Indigent Defendants. The court or a judge thereof may order
at any time that a subpoena be issued upon motion or request of

                                 2
United States v. Warner, 04-0119/AF


substantial difference between Rule 17(b) and paragraph 115a is

the necessity for the civilian defendant to aver that he [or

she] does not have the means to pay the necessary costs

attendant upon the witnesses’ appearance.”

14 C.M.A. at 602, 34 C.M.R. at 382.    In another early

interpretation, we relied entirely on state and federal

decisions and the Federal Rules of Criminal Procedure in

determining the scope and meaning of Article 46:   “A military

accused, just as a civilian defendant, has the right to prepare

to meet charges pending against him.   He, too, is entitled to

compulsory process for the production of witnesses and other

evidence.”6   I am mystified by how we came from that position to

today’s rejection -- not only of Supreme Court precedent,

federal and state decisional law, federal rules, the Sixth

Amendment, and the President’s implementation of Article 46 --

but our own long-standing precedent7 as well.   Although the Rules



an indigent defendant. The motion or request shall be supported
by affidavit in which the defendant shall state the name and
address of each witness and the testimony which he is expected
by the defendant to give if subpoenaed, and shall show that the
evidence of the witness is material to the defense, that the
defendant cannot safely go to trial without the witness and that
the defendant does not have sufficient means and is actually
unable to pay the fees of the witness.”
6
  United States v. Aycock, 15 C.M.A. 158, 162, 35 C.M.R. 130, 134
(1964)(citations omitted).
7
  The majority’s new rule implicitly modifies, among others,
United States v. Garries, 22 M.J. 288 (C.M.A. 1986); United
States v. Gonzalez, 39 M.J. 459 (C.A.A.F. 1994); United States

                                 3
United States v. Warner, 04-0119/AF


for Courts-Martial (R.C.M.) are created by the President, rather

than Congress, we should heed the reasoning of our superior

court before we assume the power to amend or create those rules:

     Congress has the power to prescribe rules of procedure
     for the federal courts, and has from the earliest days
     exercised that power. . . . The power of this Court
     to prescribe rules of procedure and evidence for the
     federal courts exists only in the absence of a
     relevant Act of Congress.8

                             FACTS

     So flawed is this case, in both facts and posture, as a

vehicle for the majority’s usurpative pronouncement, that I am

compelled to start from the beginning, accepting only the lead

opinion’s recitation of the facts of the crime and the

procedural events.   Fortunately, I have the correct findings of

fact by the military judge and the well reasoned decision of the

court below to serve as guideposts.

     Relevant facts are drawn from the record of trial, and we

accept the factual findings of the courts of criminal appeals

unless they are clearly erroneous.    United States v. Burris, 21

M.J. 140, 144 n.7 (C.M.A. 1985), cf. United States v. Barron, 52

M.J. 1, 6 (C.A.A.F. 1999).   The averments of counsel during

motions practice and oral argument may be informative, but they



v. Ndanyi, 45 M.J. 315 (C.A.A.F. 1996); and, particularly,
United States v. Ford, 51 M.J. 445 (C.A.A.F. 1999).
8
  Palermo v. United States, 360 U.S. 343, 353 (1959)(internal
citations omitted).

                                 4
United States v. Warner, 04-0119/AF


are not evidence.   United States v. Loving, 41 M.J. 213, 238

(C.A.A.F. 1994).    Confining the facts to those in the record of

trial, or as found by the court below, we must accept that:

     A.   Neither Dr. Susan Brown nor Dr. Wilbur Smith testified

on the motion at trial.

     B.   Dr. Brown’s sworn affidavit, admitted on the motion at

trial, Appellate Exhibit (A.E.) X, details her education and

experience in dealing with child abuse, including her board

certification in pediatrics and adolescent medicine.   Her

primary expertise is in adolescent medicine, but she has

significant training and experience in child abuse other than

sexual abuse and other than with adolescents.   Unlike Dr. Smith,

Dr. Brown has testified in twenty to twenty-five courts-martial,

is a career officer, and has experience with both the military

medical structure and the medicolegal aspects of practice.

Specifically addressing her qualifications with respect to

shaken baby syndrome, Dr. Brown averred:

     I have been an expert consultant and/or witness in
     about 20-25 courts-martial. I have testified about
     child pornography, child sex abuse and various other
     aspects of child abuse such as perforated bowel,
     fractures, failure to thrive, burns, skin
     manifestations of abuse, children’s memory and
     suggestibility and Munchausen’s syndrome by proxy. My
     specialties are adolescent medicine and pediatrics.
     In the area of child abuse, I have the most direct
     clinical experience with child sexual abuse. I have
     not, however, been a consultant or witness at trial
     for Shaken Baby Syndrome. Even though, I feel
     competent in this area of child abuse, specifically


                                  5
United States v. Warner, 04-0119/AF


     Shaken Baby Syndrome, I am not the equivalent of Dr.
     Stephen Boos. There are other physicians who are
     better qualified than me when it comes to “Shaken
     Baby” cases.

A.E. X at 29 (emphasis added).

     Dr. Brown was appointed by the convening authority as an

expert consultant to the defense team on April 3, 2001, six

weeks prior to trial.9   Id. at 19.

     C.    The defense provided no affidavit, testimonial

substitute, or synopsis (either as to expected testimony or as

to how Dr. Smith could assist the defense) in support of their

request to the convening authority that Dr. Smith be appointed

“an expert consultant to assist the Defense in the preparation

and defense in this case, and possibly to testify as a witness

. . . .”   Id. at 9 (emphasis added).   In fact, both the request

to the convening authority and trial defense counsel’s motion to

compel appointment of Dr. Smith are devoid of any averment that

defense counsel had even spoken with Dr. Smith regarding the

latter’s qualifications or what he could do for the defense.




9
  The majority cites several declarations of counsel, not part of
the record of trial, but appended to the appellate record by
this Court’s order, to support this Court’s factual findings
regarding how Dr. Brown was appointed. Article 67, UCMJ, 10
U.S.C. § 867 (2000), does not empower this Court to engage in
factfinding. Marking an appellate exhibit, making a
declaration, or making a proffer does not constitute evidence.
Cf. John W. Strong et al., McCormick on Evidence §§ 51-52 (5th
ed. 1999).

                                  6
United States v. Warner, 04-0119/AF


United States v. Warner, 59 M.J. 573, 578 (A.F. Ct. Crim. App.

2003).

     D.   In a written pretrial motion, the defense sought

appointment of Dr. Smith as a replacement for Dr. Brown.

Therein, counsel made averments of “fact” (which included

opinion and conjecture) as to the qualifications of both Dr.

Smith and Dr. Brown; however, the defense “evidence” in support

of these averments consisted only of an unattested curriculum

vitae (CV) attributed to Dr. Smith and a sworn affidavit from

Dr. Brown.   The defense provided no affidavit or other

testimonial substitute regarding Dr. Smith’s qualifications, how

Dr. Smith could help the defense, or any indication that the

defense had discussed matters of substance with Dr. Smith.    The

defense eschewed their entitlement to a session pursuant to

Article 39(a), UCMJ, 10 U.S.C. § 839(a)(2000), on this motion,10

at which counsel could have presented the required evidence, or

even examined Dr. Brown under oath to support his attack on her

credentials.   In that same motion, the defense contended that

Dr. Brown would not be available to assist the defense in the

two weeks immediately prior to trial.   The Government filed no

response, and the military judge made the following findings:


10
  R.C.M. 905(h) provides that: “Upon request, either party is
entitled to an Article 39(a) session to present oral argument or
have an evidentiary hearing concerning the disposition of
written motions.”

                                 7
United States v. Warner, 04-0119/AF


     1. The time period for the Government to reply as
     provided for in the Air Force Rules having expired,
     and no request for extension of time having been
     filed, the court deems the Government to have waived
     its right to reply.

     2. For purposes of this motion, the defense statement
     of facts is accepted.

     3. Since the convening authority has already
     determined that a defense consultant is necessary and
     appropriate and will be provided, the court does not
     need to act in that regard.

     4. Defense counsel have requested the court to direct
     that Dr. William Smith be retained to act as a defense
     expert consultant and potential witness in lieu of the
     convening authority approved expert, Doctor (LtCol)
     Susan Brown. They base this request on two primary
     grounds. First, they assert Dr. Brown is neither
     sufficiently qualified in the relevant field, that is,
     shaken baby syndrome, nor are her qualifications of a
     stature reasonably close to those of the government’s
     expert. Second, they complain Doctor Brown will not
     be available to assist them during the crucial two-
     week period before trial. Doctor Brown will
     apparently be on a humanitarian mission, out of the
     country, out of telephone contact in that two-week
     period, returning in the eve of the trial.

     Based on the foregoing, the court issues the following
     orders:

     5. The defense request for the appointment of Doctor
     Smith is DENIED.

     6. The defense request for the appointment of a new
     expert consultant is GRANTED. This decision is based
     solely on the matter of Doctor Brown’s availability.
     The court can think of no more critical period when
     counsel need the services of this expert than the two
     weeks before trial. Since Doctor Brown is an active
     duty service member, her schedule is totally within
     the control of the Air Force. Sending her out of
     country for the two weeks before trial denies the
     accused a fundamental right to which the convening
     authority has already determined he is entitled.


                                8
United States v. Warner, 04-0119/AF



     7. The court has neither considered nor ruled upon
     defense counsel’s expressed concerns about Doctor
     Brown being substantially less qualified than the
     Government expert in their comparative stature. It is
     unnecessary to do so in light of the ruling in the
     previous paragraph. But the court is mindful of the
     multitude of cases on the subject, many of them
     referred to in the defense brief, and strongly
     suggests any new expert consultant appointed have the
     expertise and experience to meet the threshold
     criteria of the appellate court decisions.

A.E. VIII at 1-2 (emphasis added).

     E.   Still prior to trial, the military judge was apprised

by both counsel that Dr. Brown’s scheduled pretrial absence had

been cancelled.   The trial counsel asked the military judge to

reconsider his earlier ruling, the defense did not object, and

the military judge then made substantive findings of fact

regarding the qualifications of Dr. Brown and Dr. Boos,

incorporating their CVs in his findings of fact.   As to Dr.

Smith, the military judge noted only that the defense had

requested him, making no findings as to his qualifications.    In

that order (attached to this opinion as an appendix), the

military judge expressly rescinded his prior order.    In denying

Appellant’s request for Dr. Smith and approving appointment of

Dr. Brown as a defense expert consultant, the military judge

ruled:

     An individual provided to the defense   to act in the
     capacity of an expert consultant need   not be the
     premier expert in the field. Rather,    the consultant
     must be professionally qualified in a   relevant field


                                 9
United States v. Warner, 04-0119/AF


     of expertise, and be capable of analyzing court issues
     germane to that field and providing expert opinions
     and advice to the defense team. Based on the
     information provided, the court finds Doctor Brown is
     competent to act as a consultant in the area of child
     abuse, and specifically shaken baby syndrome.

A.E. V at 2 (emphasis added).

     F.   At trial, when offered the opportunity to present

evidence and have the motion reconsidered by the military judge,

Appellant’s counsel affirmatively declined.   At no time did

defense counsel make an offer of proof regarding any interview

of, or statements by Dr. Smith.    Further, there is no evidence

that the defense used Dr. Brown -- despite her appointment to

the defense team six weeks prior to trial -– to assist them in

making a more credible request for the services of Dr. Smith, to

obtain a different expert consultant, to review defense theories

and offer advice, or to identify any potential expert witnesses.

     G.   As the majority notes, in a ruling and order dealing

solely with Dr. Brown’s anticipated unavailability, the military

judge included the statement:   “‘[f]or purposes of this motion,

the defense statement of facts is accepted.’”   Warner, __ M.J.

at __ (8).   That lengthy statement of “facts” included defense

counsel’s opinions, averments, and conjecture.11   Notwithstanding

the military judge’s express, affirmative exclusion of the issue


11
  Referred to on one point by the military judge as an
“assert[ion].”



                                  10
United States v. Warner, 04-0119/AF


of professional qualifications from that ruling, and the

military judge’s later express rescission of that ruling, the

majority reasons that to avoid a “cumulative and problematic”

effect, the opinions and conclusions of defense counsel and Dr.

Smith’s unattested CV, must now become unassailable “facts of

record,” Warner, __ M.J. at __ (8-9 n.11), which bind this

Court.12   To the contrary, it could not be more glaringly

apparent that, in his first order, the military judge accepted

certain facts for the purpose of expeditiously dealing only with

the question of Dr. Brown’s availability, while expressly

excluding consideration of qualification issues.    Only in his

second ruling, which rescinded the first, did the military judge

address questions of professional qualifications.

     H.    Although the defense avoided every opportunity either

to put on evidence or make an offer of proof, in their motion,

A.E. X, counsel averred, among other things, that Dr. Smith had

“taught, lectured on pediatric radiology and child abuse,” “has

written numerous publications on head trauma and brain injury,”

“has extensive experience in diagnosing head trauma in infants,”


12
  As the actual text of the military judge’s first order makes
abundantly clear, the military judge made no factual findings
whatsoever pertaining to the qualifications of either expert.
If the plain language of that order were not enough, however,
the military judge’s later ruling, expressly rescinding the
first, should leave no doubt whatsoever that the military
judge’s only findings related to qualifications are those stated
in his later ruling.

                                 11
United States v. Warner, 04-0119/AF


and “has the training and experience in evaluating cases like

BT’s.”13

     I.    If this Court had factfinding authority, we could

conclude from Dr. Smith’s very lengthy CV that he:   is an expert

in radiological detection of a vast array of injuries and

disorders, has significant experience and academic credentials

in the area of traumatic child injury and abuse, and is an

experienced lecturer and author in both areas.   However eminent

and well qualified Dr. Smith may actually be, neither the CV nor

any other evidence offered by the defense (or even an offer of

proof) supports a conclusion that Dr. Smith is an eminent or

leading expert in shaken baby syndrome, that he has ever treated

any children for shaken baby syndrome, or that he has any

expertise in forensic pediatrics or other specialties that might

establish his ability to assess causes of injuries or “suggest

alternative theories” for the defense.


13
  A.E. X at 3. Accepting this last statement as fact, which the
majority insists we must do, is problematic for Appellant.
Because the defense facts establish no substantive contact
between defense counsel and Dr. Smith, we must conclude that the
defense counsel had the experience and training to have
evaluated BT’s “case,” compared it with other cases in which Dr.
Smith had been involved, and concluded that BT’s case was
medically and forensically similar to those other cases. This
familiarity demonstrates not only that the defense needed very
little in the way of an expert consultant, but also that the
defense had more than adequate knowledge upon which to interview
potential defense experts and effectively cross-examine Dr. Boos
at trial, which the defense certainly did, perhaps with Dr.
Brown’s help.

                                 12
United States v. Warner, 04-0119/AF


       J.   As reflected in the record of trial, and as found

by both the military judge and the court below, at no time

prior to, or during, the proceedings did Appellant request

Dr. Smith as an expert witness, nor did he request any

other expert witness.

                              DISCUSSION

       The majority opinion improperly augments the record of

trial with Appellant’s arguments and averments and rewrites not

only our precedent, but R.C.M. 703 and Article 46, as well.

Rejecting the findings of fact by the military judge and the

court below without determining that such findings were clearly

erroneous, the opinion finds new sources of evidence to support

the conclusion that Dr. Brown was not an “adequate substitute”

for Dr. Smith.    Enigmatically, this result is obtained not

because Dr. Brown’s credentials were not equivalent to those

attributed to Dr. Smith, but because Dr. Brown did not possess

“professional qualifications . . . reasonably comparable to

those of the Government’s expert.”     Warner, __ M.J. at __ (22-

23).

       The majority opinion does not conclude that the military

judge and the court below failed to properly consider Article

46, R.C.M. 703, or the relevant precedent of this Court and the

Supreme Court.    Rather, based on their own factfinding, the

majority opinion concludes that both the military judge and the


                                  13
United States v. Warner, 04-0119/AF


court below abused their discretion “because they were

influenced by an erroneous view of the law.”   __ M.J. at __ (16-

17).   The opinion offers no standard by which the military

judge’s abuse was measured, nor an explanation as to how the

military judge could have held an “erroneous view of the law”

when the law in question had yet to be invented, whole cloth, by

this Court some four years after his ruling.   Just as in United

States v. Wiesen:

       My analysis shows that the trial judge did not abuse
       his discretion in this case. The judge exercised his
       discretion with no knowledge that this Court would
       expand the law as the majority does today. When the
       judge made his ruling that is overturned today by the
       majority, there was no case law suggesting this
       holding. Interestingly enough, the majority cites no
       case law as support for this new extension of the law.

56 M.J. 172, 183 (C.A.A.F. 2001)(Sullivan, J., dissenting).

       Finally, usurping the power given only to Congress and the

President to legislate or promulgate evidentiary and procedural

rules, the opinion rewrites Article 46 and R.C.M. 703(d) to

incorporate their new rule.   The result is a retrospective rule

that will alter the landscape of every court-martial now on

appeal or yet to be tried, that involves either a Government

expert consultant or expert witness.   To borrow a phrase, “we

are left here with a jerry-built house of cards on a foundation

of shifting sands.”   Backus Plywood Corp. v. Commercial Decal,

Inc., 208 F. Supp. 687, 696 (S.D.N.Y. 1962).



                                 14
United States v. Warner, 04-0119/AF


     There are three critical propositions raised by the

majority opinion with which I take particular issue.

     A. “ADEQUATE SUBSTITUTE”

     The quoted language of R.C.M. 703(d) has never been

applied, nor was it ever intended to apply, to a Government

expert, rather than to an expert requested by the defense and

denied by the Government.    The majority opinion’s claim that

such a construction is a means to satisfy congressional intent

underlying Article 46 is, unsurprisingly, completely unsupported

by any citation to supporting authority; its ipse dixit

character is self-evident.

     “Adequate substitute” is not defined in the R.C.M.

Nonetheless, this Court has employed “competent assistance” to

measure the concept.   See Ndanyi, 45 M.J. at 319 holding that

“As long as the Government was willing to provide competent

assistance at government expense -- which the defense

preemptively rejected -- the Government’s burden was satisfied.

The defense could either accept such assistance or look to its

own resources.”).   As we have stated:

     An accused is not . . . entitled to a specific expert
     of his own choosing. All that is required is that
     competent assistance be made available. As this Court
     observed in United States v. Garries, 22 M.J. 288,
     290-91 (1986), “In the usual case, the investigative,
     medical, and other expert services available in the
     military are sufficient to permit the defense to
     adequately prepare for trial.”



                                 15
United States v. Warner, 04-0119/AF


 United States v. Short, 50 M.J. 370, 372-73 (C.A.A.F. 1999)

 (citation and quotation marks omitted), cert. denied, 528 U.S.

 1105 (2000).14

     Neither these cases, nor the text, comments, or analysis of

R.C.M. 703 contain even a suggestion that “adequate substitute”

is to be measured against any standard other than the expert

requested by the defense.   See, e.g., Ndanyi, Ford, Garries, and

Gonzales.15




14
  In Short, the Court, in a 3-2 opinion, held there was no abuse
of discretion in denying Appellant Government expert assistance.
50 M.J. 373. Short sought certiorari before the Supreme Court.
Brief for the United States in Opposition at 1, Short v. United
States, 528 U.S. 1105 (2000)(No. 99-362), 1999 WL 33633132
(U.S.), at *1. The Solicitor General asked the Supreme Court to
deny certiorari and argued that “[l]ike Ake,” Federal cases “do
not stand for the more general proposition asserted by
petitioner of a right to government-funded expert assistance of
the defendant’s choice without a showing of necessity.” Id. at
7-8, 1999 WL 33633032 at 7-8. This was partially in reliance on
the papers of Justice Marshall as to the right to an expert in
Ake v. Oklahoma, 470 U.S. 68 (1985), where Chief Justice Burger
concurred in the result because Justice Marshall would not limit
the expert assistance to a “capital case.” Benjamin Weiser &
Joan Biskupic, Marshall Lawyer Tries to Close Access to Papers,
Wash. Post, May 25, 1993, at A1.
15
  The majority correctly observes that Ford, Gonzalez, and
Ndanyi do not expressly mention Article 46 and that only Garries
does. Ford, Gonzalez, and Ndanyi, however, all apply the
criteria from Garries (which became the Gonzalez test), relying
heavily on Article 46. In Ndanyi, this Court recognized that
the third prong of that test included analysis of the adequacy
of government-substituted consultants and assistants. 45 M.J.
at 319-20. That test will now either be modified or rejected
altogether. In addition, these opinions, and many others, are
rife with language inconsistent with the majority’s opinion.

                                16
United States v. Warner, 04-0119/AF


       However, the majority distinguishes this line of cases as

arising merely from the United States Constitution and the

Supreme Court, and then finds in Article 46 a manifestation of

congressional intent that has lain dormant for over fifty years.

       The first sentence of Article 46 provides that “[t]he trial

counsel, the defense counsel, and the court-martial shall have

equal opportunity to obtain witnesses and other evidence in

accordance with such regulations as the President may

prescribe.”    Emphasis added.   While insisting that the plain

text of Article 46 compels their conclusions, the majority gives

such dispositive weight to the first clause of Article 46 that

the second clause is rendered virtually meaningless.    As a

result, this Court is now prescribing regulations, relegating

the President to the ministerial function of summarizing the

Court’s implementation of Article 46 in the next edition of the

MCM.   This, Congress did not intend.

       Having insisted on this path in a case dealing not with

expert witnesses but with consultants, the other shoe is likely

to drop soon.16   When it does, and this Court is asked to apply

that same congressional intent to substitute defense


16
  See, e.g., United States v. Bresnahan, __ M.J. __, __ (2)
(C.A.A.F. 2005) (Erdmann, J., dissenting). Before the ink on
today’s majority opinion has even dried, one member of that
majority would cite it in support of lowering the evidentiary
threshold the defense must meet to acquire a government-funded
expert consultant.

                                  17
United States v. Warner, 04-0119/AF


investigators and substitute laboratory assets, where will the

Court look in Article 46 to find that Congress did not intend

that such assets also be “reasonably comparable to those of the

government”?

     Congress included the second clause of Article 46 for good

reason.   It is within the President’s discretion to regulate how

and by what measure “equal opportunity” is to be applied.

Unless we are prepared to hold the President’s implementation of

Article 46 to be in violation of either the article itself or

some higher authority, we are not at liberty to strike it down

or amend it.

     After today, once the defense demonstrates the need for an

expert consultant and/or requests a particular consultant, this

Court’s new rule will require that the Government either:    (1)

pay for the consultant the accused has requested (with the

obvious danger that the accused may exercise his right to a more

highly qualified expert should the Government procure an expert

with qualifications superior to those of the accused’s first

expert), or (2) without regard to the credentials of the

requested expert, procure for the defense a substitute with

“professional qualifications . . . reasonably comparable to

those of the Government’s expert.”    Warner, __ M.J. at __ (22-

23)(emphasis added).




                                18
United States v. Warner, 04-0119/AF


     This process is certainly not compelled by Article 46 and

thus usurps the President’s authority to implement that statute

as he chooses, as long as that implementation does not violate

Article 46 or some higher authority.   See R.C.M. 703.

     Claiming to rely on “the plain wording of Article 46” in

divining this newfound “congressional intent” to provide near

absolute equality of trial team resources, the majority utterly

rejects the context in which Article 46 was enacted and

eviscerates the President’s rulemaking authority.   Because we

are neither Congress nor the President, I must respectfully

decline to join the majority’s speculation.

     B.   DR. BROWN VS. DR. SMITH

     Setting aside for the moment the majority’s reinventing of

Article 46 and R.C.M. 703, the question becomes whether Dr.

Brown was an “adequate substitute” for Dr. Smith as an expert

consultant.   There is no evidence to support the majority’s

contention that Dr. Brown was either unqualified or measurably

less qualified than Dr. Smith to serve the defense as an expert

consultant.

     Counsel are advocates.   Their role is to argue the facts,

sometimes quite creatively.   “After all, advocates . . . are

like managers of pugilistic and election contestants in that




                                19
United States v. Warner, 04-0119/AF


they have a propensity for claiming everything.”17       What is not

evidence, is not an offer of proof,18 and is not before this

Court as anything other than unsupported argument is that which

counsel have “averred” in written pretrial motions:      “that based

on the defense counsel’s conversations with Dr. Brown, the

defense counsel believed she would merely ‘defer’ to the

opinions of Dr. Boos”; and “that while Dr. Brown ‘is able to

advise the defense generally on the timing of the injuries,’ she

could not advise the [d]efense concerning ‘possible alternative

explanations.’”    Warner, __ M.J. at __ (8).   Also not evidence –

- particularly in the face of a contrary holding by the court

below -– are counsel’s arguments that Dr. Smith could provide

something to the defense that Dr. Brown could not.       Warner, 59

M.J. at 579-80.

       After exhalting defense counsel’s recitation of facts, in

which Dr. Brown’s affidavit was incorporated, the majority

enigmatically refers to Dr. Brown as a “generalist with no

apparent expertise in [shaken baby syndrome],” Warner, __ M.J.

at __ (12), and concludes that “neither the Air Force Court nor

the dissent has identified anything in the record demonstrating

that Dr. Brown had any experience in the area of shaken baby


17
  First Iowa Hydro-Elect. Coop. v. Federal Power Comm’n, 328
U.S. 152, 187 (1946) (Frankfurter, J., dissenting).
18
     See Military Rule of Evidence (M.R.E.) 103(a)(2).

                                  20
United States v. Warner, 04-0119/AF


syndrome.”   Id.   (emphasis added).    To the contrary, in an

affidavit appended to the very defense motion that the majority

hails as the facts of record, A.E. X at 29, Dr. Brown swore that

“I feel competent in this area of child abuse, specifically,

Shaken Baby Syndrome . . . .”   In A.E. V at 1, the military

judge found that Dr. Brown had “14 years of experience in

pediatrics, including her periods of internship and residency.

Further, she has continued post graduate training in child abuse

and forensic pediatrics . . . .”      I am unwilling to assume that

Dr. Brown was born with the competence she claimed, or to assume

that, as a Lieutenant Colonel in the Air Force, she was willing

to lie under oath about her competence, or to assume that in the

course of fourteen years of pediatric practice in military

hospitals and post graduate training in forensic pediatrics, she

had no experience in shaken baby cases upon which to base her

sworn assessment of competence.19

     In declining to put his appointed consultant on the stand

to expose her allegedly deficient experience and her

unsuitability as a consultant,20 Appellant failed to meet his


19
  As we are without factfinding power, I am unwilling to
entertain the proposition that because a contrary conclusion
“could have been” reached by a lower court, we may reject that
court’s findings of fact on that basis. Warner, __ M.J. at __
(12-13 n.20).
20
  In Garries, the defense rejected an appointed, confidential,
defense investigator and was then properly denied $1500 for an

                                 21
United States v. Warner, 04-0119/AF


burden.   Rather than recognize that, the majority rewards this

practice by applying unwarranted presumptions to the detriment

of Dr. Brown’s sworn, candid statement of competence, while

applying nearly opposite presumptions in favor of Dr. Smith’s

unsworn CV, and then elevating defense counsel’s unsupported

averments to evidentiary status by reviving a rescinded ruling

of the military judge.   In so doing, the majority rejects the

credibility determinations of the trial judge and substitutes

their own factual findings for those of both the trial judge and

the court below.

     The record firmly supports the determinations of the

military judge and the court below that Dr. Brown was qualified,

not as an eminent expert in the field of shaken baby syndrome,

but to serve as a defense consultant on shaken baby syndrome.21




“independent investigator” because the defense failed to
demonstrate why the government-appointed asset would not fulfill
their needs. 22 M.J. at 291. Claiming not to overrule or
modify Garries, the majority finds, not just that an experienced
pediatrician with forensic training was incapable of even
recommending an expert witness or another consultant, but that
the level of assistance is now to be measured against the
credentials of the Government expert. If Garries were tried
tomorrow, the defense would be entitled to their choice of the
$1500, or an investigator with “reasonably comparable”
credentials to those of the Government investigator.
21
  Both the assignment of weight and the comparative
determination of credibility involving Dr. Smith’s unattested CV
and the sworn affidavit of Dr. Brown are components of
factfinding within the purview of courts with factfinding
authority.

                                22
United States v. Warner, 04-0119/AF


     Appellant’s trial defense counsel elected to support his

motion with nothing other than Dr. Smith’s CV -- no statements,

no affidavits, no letters, not even an offer of proof.    See A.E.

X; R. at 16.   Regardless of what Dr. Smith’s qualifications may

actually be, nothing in Dr. Smith’s CV establishes either that

he was an eminent expert in shaken baby syndrome or that he was

as qualified in that area as Dr. Boos, the standard against

which the majority measures the qualifications of Dr. Brown.

Yet it is that “eminence” on which the majority relies in

concluding that only Dr. Smith and, not Dr. Brown, “would have

assisted the defense in evaluating, identifying and developing

evidence.”   Warner, __ M.J. at __ (11).

     At trial, defense counsel affirmatively declined to offer

any other evidence on the motion, even declining to call his own

consultant to the stand, either to expose her weaknesses or to

establish a description of a more qualified consultant.

     Where the majority has failed, the military judge and the

court below succeeded.   They properly considered the evidence of

record and, consistent with all known law, assigned to the

averments of counsel the evidentiary weight they deserved.    It

is in this factual context, and not in that proposed by the

majority,22 that we must determine whether the military judge


22
  Because, in the first instance, I see no factfinding power in
the “plain language” of Article 67, I am doubly at a loss to

                                23
United States v. Warner, 04-0119/AF


abused his discretion in ruling that the expert the Government

provided to the defense was “an adequate substitute for the

defense-requested civilian expert.”     Warner, __ M.J. at __ (15).

Applying the legal standards recited above, and after reviewing

the facts from the record of trial, it is clear that neither the

military judge nor the court below abused their discretion in

ruling on this issue.

        C.   ABSENCE OF ERROR OR PREJUDICE

        No error occurred at trial involving (1) the testimony of

Dr. Boos, (2) the effectiveness of the defense attack on that

testimony, or (3) the defense’s opportunity to receive expert

advice or present their own expert testimony.

        Appellant made no request before or during trial for an

expert witness, nor did he ever proffer or contend that any

expert would offer opinion or testimony contrary to that of Dr.

Boos.    Since the defense made no request for any expert witness,

the majority’s concern for the effect of Dr. Boos’ “vastly

superior qualifications” at trial is a non sequitor.    Warner, __

M.J. at __ (14).

        The majority’s gymnastic pronouncements seem to require

first, an assumption that Congress intended the accused at


comprehend the majority’s “bootstrapping” of factual findings
from other jurisdictions into their determination of Dr. Smith’s
expertise. Warner, __ M.J. at __ (20-21). The implication that
it was an abuse of discretion for the military judge not to have
adopted factual findings from other courts is mind-boggling.

                                   24
United States v. Warner, 04-0119/AF


courts-martial to have expert consultants with qualifications

“reasonably comparable” to those of the Government’s expert

consultant or witness; and, second, that if the Government fails

to meet this requirement at the consultant stage, Congress

intended that this Court substitute conjecture and assumption

for the record of trial in evaluating both error and prejudice.

I prefer a more traditional analysis.

     As noted above, the defense avoided every opportunity to

establish, by proffer or evidence, Dr. Smith’s qualifications or

potential contributions.   The defense requested no expert

witness.   The defense counsel did not object to having Dr. Boos

recognized as an expert.   Despite having had Dr. Brown available

to the defense team for six weeks prior to trial, the defense

also avoided every opportunity to expose her lack of

qualifications by simply calling her to testify at a motions

hearing.

     During a session pursuant to Article 39(a), trial counsel

stated that Dr. Boos would testify that, in “his professional

opinion, as a result of his review of BT’s file,” when asked to

opine on the cause of injury, “instead of responding child

abuse, he responds that it was one of two things:   either a

vigorous shaking or a swinging that was stopped by him hitting a

soft object.”   When the military judge queried the defense for

objection, defense counsel responded    “No, not at all, sir.”   In


                                25
United States v. Warner, 04-0119/AF


fact, the defense made no objection to any of Dr. Boos’s

testimony.   On cross-examination, defense counsel elicited

alternative theories of injury, including birth defects,

prenatal trauma, and trauma during birth, that could explain Dr.

Boos’s interpretations of the electronic images.   Defense

counsel also elicited testimony potentially inconsistent with a

diagnosis of shaken baby syndrome.    The cross-examination

established defense counsel’s knowledge of the subject,

including conditions, diagnostic techniques, and alternative

theories for the cause of BT’s injuries.

     In their opening statement, the defense team conceded that

they may not call any witnesses, but cautioned the members not

to give too much weight to Dr. Boos’s testimony, citing specific

areas of practice in which Dr. Boos was unskilled, themes they

repeated on closing.   The trial counsel’s passing mention of Dr.

Boos’s qualifications in his opening23 was more than offset by

the defense’s apparently effective attack on Dr. Boos during

cross-examination.   Other than arguing the relative importance

of Dr. Boos’s lack of experience in radiology, neither counsel

emphasized expert qualifications in closing.   As is the common

practice, the military judge instructed the members that they


23
  I cannot fail to emphasize that this comment, which the
majority finds so egregiously unfair, referred only to
fellowship training in child abuse –- no mention of infant abuse
or shaken baby syndrome.

                                26
United States v. Warner, 04-0119/AF


should consider Dr. Boos’s qualifications as an expert, but “are

not required to accept the testimony of an expert witness or

give it more weight than testimony of an ordinary witness.”

     Additionally, the members’ findings clearly evince the

success of Appellant’s defense counsel at trial.   The majority’s

own statement of facts makes plain that Appellant’s conviction

was assured by his own admissions and the evidence of BT’s

injuries observed by treating physicians.   It is unlikely that

Dr. Boos’s testimony was either necessary or effective.    Facing

a charge of assault with a means likely to produce death or

grievous bodily harm, Appellant was found guilty of assault on a

child under the age of sixteen years -– hardly a ringing

endorsement by the court members of Dr. Boos’s testimony and

certainly no support for any claim that Appellant’s counsel was

hamstrung by the absence of Dr. Smith.

                            CONCLUSION

     The majority explains its great leap past the record of

trial, the findings of the military judge, and the findings of

the court below as necessary to prevent the “cumulative and

problematic” effect of requiring Appellant to meet his burden

under Gonzalez.   Warner, __ M.J. at __ (8-9 n.11).   As their

argument goes, based on a rescinded ruling by the military judge

pertaining to a related issue, which ruling expressly declined

to make the findings the majority relies on, it would be


                                27
United States v. Warner, 04-0119/AF


“cumulative and problematic” to require the defense counsel to

present evidence that he had spoken with Dr. Smith, that Dr.

Smith had informed the defense how he could help them, that Dr.

Smith was qualified in the manner the defense averred, or that

Dr. Brown was not.   This new catchphrase relieves the defense of

its burden to request witnesses or present any evidence on the

motion, even when both the R.C.M. and the military judge

expressly afforded the defense the opportunity to do so.

Further, the risk of a “cumulative and problematic” effect

apparently relieved the defense even of the small burden of

putting their detailed expert consultant on the stand to

demonstrate either that she lied regarding her qualifications,

or that she lacked the experience to assist the defense.    I am

at a loss to understand how the majority’s new concern for

avoiding the “cumulative and problematic” does not concomitantly

restrain their exercise of factfinding powers bestowed by

Congress only on the courts below.    Nonetheless, without any

deference whatever to either the facts found by the military

judge –- including the determination of credibility likely

applied when weighing Dr. Smith’s unattested and unauthenticated

CV against Dr. Brown’s sworn affidavit -– and by selectively

applying inferences to Dr. Smith’s CV that they decline to apply

to Dr. Brown’s affidavit, this Court substitutes its view of the

facts for those of both the military judge and the court below.


                                28
United States v. Warner, 04-0119/AF


Finally, to buttress their factual findings, the majority

imports factual findings from other cases and jurisdictions.

     In affirmatively rejecting all federal precedent and

authority, the majority moves us even further from the

mainstream of federal practice, without any articulation of the

need to do so.   Sadly, today’s decision continues the majority’s

increasingly frequent march away from the purpose of Article 46

and the President’s implementation thereof in R.C.M. 703.

     In United States v. McAllister, 55 M.J. 270, 281-82

(C.A.A.F. 2001)(Crawford, C.J., dissenting), I dissented from

the Court’s relegation to a mere formality of the defense burden

to establish necessity for a particular expertise.   The

majority’s citation of United States v. Kreutzer, 59 M.J. 773,

777 n.4. (A. Ct. Crim. App. 2004), aff’d, 61 M.J. 293 (C.A.A.F.

2005), harbingers their expansion of Article 46 to include a per

se right to a mitigation expert in capital litigation regardless

of the number of psychiatrists, psychologists, and doctor-

lawyers already assigned to the defense team.   Warner, __ M.J.

at __ (21 n.37).   From that proposition, I have also dissented

and for the same legal reasons.    Kreutzer, No. 04-5006, 2005

CAAF LEXIS 900, at *47-*56 (C.A.A.F. Aug. 10, 2005)(Crawford,

J., dissenting).

     Today’s new proposition, unsupported by the record of

trial, that the “denial of a defense expert with professional


                                  29
United States v. Warner, 04-0119/AF


qualifications comparable to those of the Government’s expert

interfered” with the defense “opportunity to obtain witnesses

and other evidence,” Warner, __ M.J. at __ (11), in violation of

Article 46, is not only startling, but stands in sharp contrast

to this Court’s analysis of an Article 46/R.C.M. 703 issue in

United States v. Shelton, 61 M.J. __ (C.A.A.F. 2005).   In

Shelton we assumed that the defense had met their burden in

requiring Government production of two defense witnesses, and

also assumed an erroneous denial of witness production by the

Government.   We then tested for prejudice by using the record of

trial.   If Congress had intended the defense to have “equal

opportunity to obtain witnesses,” without regard to Presidential

implementation, the defense would not be required affirmatively

to demonstrate relevance and necessity and defense counsel would

have subpoena power.   See R.C.M. 703(c)(2)(B)(i); contra R.C.M.

703(e)(2)(C).   If the defense has no burden to provide synopses

or proffers, every denial of a defense witness will result in

presumed prejudice.

     The majority’s conclusion that “the nature of the legal

error –- the denial of a sufficiently qualified expert -–

interferes with Appellant’s ability to demonstrate prejudice,”

simply ignores the evidence, the record, and the abilities of

even the most junior judge advocate.




                                30
United States v. Warner, 04-0119/AF


     The military society which we serve deserves, and indeed

the American public expects, a military justice system that not

only protects the rights of the accused but also follows

established legal principles and precedents.   When a court

oversteps its authority and ignores its own long-standing legal

precedent, it undermines the public’s confidence, as well as

stability and predictability in the military justice system.    If

the risk of a “cumulative and problematic” effect is the

talisman to be wielded by defense counsel wishing to avoid well

established evidentiary burdens, what legal standards should

advocates and military judges employ?   Can they now be confident

when they apply long-standing legal principles, procedures, and

precedent?   Our Constitution contains its own wise restraint on

“cumulative and problematic” effects -– the separation of powers

doctrine.    Will the military society respect a judicial system

that ignores that doctrine as well as prevailing legal standards

and decisions?   And will the American public have confidence

that the intent of Congress in promulgating the UCMJ is being

respected?   I fear not.

     Finally, I question whether the majority’s new expert

entitlement rule and “presumed prejudice” factors will benefit

the defense in the context of future trials.   As is evident on

this record, when the Government has denied a defense-requested

expert consultant but provided a substitute, past practice has


                                 31
United States v. Warner, 04-0119/AF


been not to focus with particularity on the qualifications of

either the requested consultant or the Government consultant,

but on whether the substitute was “adequate,” in a broad sense.

For that reason, CVs and averments have frequently escaped

scrutiny and evidentiary objection by trial counsel, since the

substitute consultant was to be measured against a relatively

fixed standard.    As the standard is now purely comparative,24

every degree, training program, appointment, publication, and

lecture is potentially in issue and the battle may be on.

       These considerations would normally fall under the purview

of the “comprehensive survey” process sagely included by

Congress in the UCMJ.25    The judge advocates general have devoted

considerable assets26 to this process, which produces the vast

majority of recommendations for change to both the MCM and the

UCMJ, following thorough study, debate, and public notice.    We

can only hope that our preemption of that rulemaking process

does not prove inordinately disadvantageous either to service



24
  “[W]e hold that the defense was entitled to an expert who
could adequately substitute for Dr. Smith and who had
qualifications reasonably comparable to those of the Government
expert who testified in the same subject area.” Warner, __ M.J.
at __ (17).
25
     Article 146, UCMJ, 10 U.S.C. § 946 (2000).
26
  See generally Department of Defense Directive 5500.17, Role
and Responsibilities of the Joint Service Committee on Military
Justice (May 3, 2003).

                                  32
United States v. Warner, 04-0119/AF


members or the reputation of the military justice system that

the majority seeks to benefit.




                                 33
