My apologies to the good -- and apparently sober -- people of Wisconsin

Last night I failed to heed that sage advise of President Reagan's: "trust but verify." I trusted ACCA, but I failed to verify what it wrote.

Let's recap. In its opinion in United States v. Hearn, __ M.J. ___, No. ARMY 20060128 (A. Ct. Crim. App. July 17, 2008), ACCA borrowed a voluntary intoxication test from State v. Kruger, offering this citation: "67 P.3d 1147, 1149 (Wis. Ct. App. 2003)." Hearn, slip op. at 13. Last night, I used that citation as an opportunity to poke fun at my friends from the Badger State: "In Hearn, ACCA follows the lead of the Wisconsin Court of Appeals. Based on many of the Badger Staters I know, it seems sensible to use Wisconsin law as a model when considering voluntary intoxication." It didn't occur to me until today to wonder what the heck decisions from Wisconsin are doing in West's Pacific Reporter 3d Series. It turns out they aren't; Wisconsin Court of Appeals decisions are published in the West's North Western Reporter. Hearn was actually a decision of the Court of Appeals of Washington, Division Three, not the Wisconsin Court of Appeals as ACCA erroneously wrote and as I erroneously copied.

But that said, for a company with a compass direction in its title, West Publishing does seem to have an amazingly poor sense of geography. I tend to think of Washington and Oregon as Northwestern states. But I am wrong; according to West Publishing, the "North Western" part of the country consists of the Dakotas, Nebraska, Minnesota, Michigan, and Iowa. Of course, there actually was a time when that general part of the country was thought of as the Northwest. West Publishing's North Western Reporter may be a quaint homage to the Northwest Ordinance of 1787. But wait a second -- didn't the old Northwest Territory include what are now Ohio, Indiana, and Illinois, the home of Northwestern University? So what are those three states' opinions doing in West's North Eastern Reporter? Can someone please alert West Publishing to the concept of the "Midwest"?

But at least some of the states covered by the North Western Reporter were once considered the Northwest. I'm pretty sure there was no point in American history when Kansas was considered a Pacific state. Yet West's Pacific Reporter publishes decisions from Kansas courts. The capital of Kansas, as I learned in elementary school while studying the big rectangular states in the middle, is Topeka. Topeka is 300 miles closer to the Atlantic Ocean than it is to the Pacific Ocean. Topeka is also closer to the Gulf of Mexico, all five Great Lakes, Canada's Hudson Bay, and Lake Okeechobee than it is to the Pacific Ocean. Kansas is one of two states (the other is Oklahoma) that are entirely on the Atlantic watershed side of the Continental Divide but that West Publishing puts in its Pacific Reporter, which also includes cases from such "Pacific states" as Colorado, Wyoming, and Montana. I can only assume that no one at West Publishing has heard of the Rocky Mountains.

And apparently the next time I have a craving for Southwestern cuisine, I can head to KFC since West publishes decisions from the Blue Grass State in its South Western Reporter. When I think of the Southwest, I tend to think of New Mexico and Arizona. But according to West, those are "Pacific" states. S.W.3d is filled with decisions from such Southwestern states as Arkansas, Missouri, and Tennessee.

So maybe it's understandable that ACCA thought West would publish Wisconsin decisions in its Pacific Reporter. But ACCA borrowed its voluntary intoxication test from Washington, not Wisconsin. The next time I lift a glass of Redhook, I'll drink to the Washington Court of Appeals.

Important voluntary intoxication decision

ACCA's decision in United States v. Hearn, __ M.J. ___, No. ARMY 20060128 (A. Ct. Crim. App. July 17, 2008), provides useful clarification regarding the law of voluntary intoxication. In Hearn, ACCA follows the lead of the Wisconsin Court of Appeals. Based on many of the Badger Staters I know, it seems sensible to use Wisconsin law as a model when considering voluntary intoxication.

In Hearn, ACCA observes that "military courts have historically treated 'voluntary intoxication' as a special defense." Id., slip op. at 12. ACCA announces that it "will continue to apply voluntary intoxication as a defense to specific intent offenses." Id.

ACCA then addresses when a military judge must provide a voluntary intoxication defense instruction to the members. "[E]vidence that an accused consumed intoxicants, standing alone, is insufficient to require a voluntary intoxication instruction." Id. Rather, "[w]hen raising an issue of voluntary intoxication as a defense to a specific intent offense, 'there must be some evidence that the intoxication was of a severity to have had the effect of rendering the appellant incapable of forming the necessary intent, not just evidence of mere intoxication.'" Id., slip op. at 12 (quoting United States v. Peterson, 47 M.J. 231, 234 (C.A.A.F. 1997)).

ACCA then borrows a three-part test from the Cheesehead Court of Appeals to further clarify when a military judge must instruct on voluntary intoxication: "A defendant is entitled to a voluntary intoxication jury instruction when: (1) the crime charged includes a mental state; (2) there is [evidence of impairment due to the ingestion of alcohol and drugs]; and (3) there is evidence that the [impairment] affected the defendant's ability to form the requisite intent or mental state." Id., slip op. at 13 (quoting State v. Kruger, 67 P.3d 1147, 1149 (Wis. Ct. App. 2003) (alterations in original)). ACCA, again quoting the Cheeseheads, synopsizes: "[T]he evidence must reasonably and logically connect the defendant's intoxication with the asserted inability to form the required level of culpability to commit the crime charged." Id. (quoting Kruger, 67 P.3d at 1149-50) (alteration in original).

ACCA ultimately holds that "the failure of the military judge to instruct on the affirmative defense of voluntary intoxication was prejudicial error" that prevented it from "affirm[ing] appellant's conviction for indecent acts or liberties with a child." Id., slip op. at 14. ACCA instead affirms an LIO of indecent acts with another. Finally, ACCA reassesses the sentence and reduces the length of confinement by five months.

And a new published ACCA opinion

United States v. Hearn, __ M.J. ___, No. ARMY 20060128 (A. Ct. Crim. App. July 17, 2008).

New published AFCCA opinion

United States v. Jones, __ M.J. ___, No. S31164 (A.F. Ct. Crim. App. July 18, 2008).

Some numbers

Last year I wrote a post called Avoiding Entangling Alliances, which provided some end of term observations. Here's the first similar look at this term.

In the 2007 Term, only 35 cases were decided by the full 5-judge court. Of those 35 cases, 48.6% (17/35) were decided unanimously but only 11% (4/35) were decided by 3-2 votes. [By "decided unanimously" and "unanimous court" in this context, I mean a case in which there is an opinion of the court and no separate opinion -- not even a concurring opinion.]

This full term produced 65 opinions of the court. A very slightly higher percentage -- 50.8% (33/65) -- were decided by a unanimous court. But the percentage of 3-2 decisions almost doubled to 21.5% (14/65).

Among all cases decided, Judge Ryan had the most dissenting votes (10) while Chief Judge Effron and Judge Erdmann tied for the least (5). Judge Baker dissented 7 times and Judge Stucky 9.

In the 14 3-2 decisions, Judge Erdmann was the most likely to be in the majority (11/14). Chief Judge Effron and Judge Baker tied for second most likely (9/14). Judge Stucky was slightly behind (8/14), while Judge Ryan was the least likely to be in the majority in a 3-2 decision (5/14).

No strong voting bloc has emerged. The two judges most likely to vote together are Chief Judge Effron and Judge Baker. The two judges least likely to vote together are Judges Baker and Stucky. Here, from most likely to least likely, are the pairings:

1. Chief Judge Effron & Judge Baker
2. Judges Erdmann and Ryan
3. Chief Judge Effron & Judge Erdmann
Chief Judge Effron & Judge Stucky (tie)
5. Judges Stucky & Ryan
6. Judges Baker & Erdmann
7. Judges Baker & Ryan
Judges Erdmann & Stucky (tie)
9. Chief Judge Effron & Judge Ryan
10. Judges Baker & Stucky

[One caveat: for purposes of this analysis, voting together means voting for the same outcome. So if two judges each voted to affirm, but one wrote the majority opinion and the other concurred in the result, they would be counted as voting together. Similarly, if two judges dissented separately, they would be counted as voting together.]

CBS Petition in SSgt Wuterich case

Here is a link to CBS's petition to CAAF in CBS Broadcasting, Inc. v. NMCCA et al., previously discussed by CAAFlog here, here, and . . . you get the picture (search for "CBS" on CAAFlog). I wanted to point out the very authoritative citation on page 26, footnote 11. This is a slam dunk with that authority!

CAAFlog will have more later.

Canadian Deserter Legal Update

The NYT story on the status of US deserters in Canada, reported by CAAFlog here, will need to change one fact. As of Tuesday, July 15, 2008, at least one US military desrter has been deported. Robin Long, who reportedly deserted in 2005, was ordered deported earlier this week, see Canadian press report here. Apparently the Canadian court ruled that (by way of CTV.ca)

Long did not provide enough convincing evidence that he will face irreparable harm if he's sent back to the United States. [] She noted that the percentage of American military deserters prosecuted in the U.S. has increased since 2002. However, she said the vast majority were not prosecuted, let alone jailed for desertion.

Under the court's ruling, if more than 50% of US deserters were being court-martialed than Long could have stayed in Canada, eh? What if Long's particular command was BCD Special happy for deserters? Oh well, guess he should have thought about that before he fled to a country with a Conservative government. One comment on the NYT article, I had to laugh when I read this quote:

As for Mr. Glass [NOTE: he's the deserter in the NYT story], he said he was between low-paying factory jobs in Indiana when he joined the National Guard six years ago. [] But he said he had one crucial question for the recruiters before he signed. “They told me I’m not going to fight a war on foreign shores,” Mr. Glass said. [] Maj. Nathan Banks, a spokesman for the Army, said, “recruiters would never have made a comment of that sort.”

CAAF grants review of yet another child pornography case

In what is no doubt the latest reflection of the alarmingly high number of child pornography cases in the military justice system, CAAF yesterday granted review of this issue: "WHETHER THE COURT-MARTIAL HAD JURISDICTION OVER THE OFFENSE OF DISTRIBUTING AN IMAGE OF CHILD PORNOGRAPHY WHERE APPELLANT POSTED THE IMAGE ON THE INTERNET PRIOR TO ENTERING ACTIVE DUTY AND HE TOOK NO FURTHER STEPS TO DISTRIBUTE THE IMAGE AFTER IT WAS INITIALLY POSTED." United States v. Kuemmerle, __ M.J. ___, No. 08-0448/NA (C.A.A.F. July 15, 2008). CAAF ordered the parties to file briefs.

I can't find NMCCA's decision on the court's web site or even on NKO. Does anyone have a copy of what the court did below?

New military cert petition in a case with no SCOTUS jurisdiction

The Supreme Court just docketed a military cert petition that was filed on 7 May. House v. United States, No. 08-60. But the Court has no statutory cert jurisdiction in the case. The cert petition seeks review of CAAF's decision denying a writ appeal. House v. Judge Advocate General of the Navy, 66 M.J. 189 (C.A.A.F. 2008). The statute granting the Supremes cert jurisdiction over military justice cases doesn't include writ appeals that don't result in relief. See U.S.C. § 1259. But if the past serves as prologue, the Acting SG (whose response is due by 14 August) won't move to dismiss the cert petition for lack of jurisdiction. Rather, he'll waive the United States' right to respond and the petition will be denied in due course.

John Wells is the petitioner's counsel.

The Military Justice Symposium issue is here!

The June 2008 issue of the Army Lawyer, which is the Military Justice Symposium issue, is now available online here.

Wuterich Writ Day

Last Thursday was Wuterich Writ Day at CAAF. CAAF received two petitions for extraordinary relief in Wuterich, one from SSgt Wuterich himself and the other from CBS News. In re Wuterich, __ M.J. ___, No. 08-8021/MC (C.A.A.F. July 10, 2008); CBS Broadcasting v. Navy-Marine Corps Court of Criminal Appeals, __ M.J. ___, No. 08-8020/MC (C.A.A.F. July 10, 2008). One curious aspect of the latter petition for a writ of prohibition and/or mandamus is that it names SSgt Wuterich as a respondent. I'm not sure what relief CBS Broadcasting would be seeking from SSgt Wuterich. I'm going to try to go to CAAF at some point tomorrow and get a copy of CBS's petition for extraordinary relief. If I get it, I'll post it on CAAFlog.com.

The 2008 Silver CAAF Tongue Award Winner

This year's Silver CAAF Tongue Award for the most oral arguments of the term goes to Maj Brian Keller of the Navy-Marine Corps Appellate Government Division, who licked the competition with six oral arguments. Congratulations, Maj Keller -- though, unlike the Golden CAAF, no physical manifestation of this award actually exists.

The civilian counsel with the most oral arguments this term was Frank Spinner, with four.