Six degrees of Marcus Fulton

As dedicated CAAFlog readers (both of you) know by now, Marcus Fulton's official CAAFlog nickname is the Columbus Clipper. This is partially an allusion to Joe DiMaggio's nickname, the Yankee Clipper. Simon and Garfunkel sang "Where have you gone, Joe DiMaggio" in the song "Mrs. Robinson" in the movie "The Graduate." Dustin Hoffman starred in "The Graduate" as Benjamin Braddock. Dustin Hoffman and Kevin Bacon were both in Barry Levinson's 1996 film, "Sleepers."

So where have you gone, Columbus Clipper?
A nation turns its lonely eyes to you.
(Woo woo woo)

New published Navy-Marine Corps case: the Battle of New Orleans part deux

The Navy-Marine Corps Court has now put its December decisions on its web site. Included in this December batch are three published opinions. We have already looked at the first two, Pflueger and Tingler. The third is United States v. Adams, __ M.J. ___, No. 200600767, 2006 CCA LEXIS 332 (N-M. Ct. Crim. App. 2006). Adams is a published case despite the fact that its address on the NMCCA web site ends in "UNPUB.doc" and is a Navy-Marine Corps Court case despite the fact that its LEXIS "Copy w/cite" citation tells you it was decided by the Air Force Court, a problem previously discussed here.

It appears that the Navy-Marine Corps Court has now brought its web site up-to-date. We understand from LCDR Truax that the Coast Guard Court's web site is always within one working day of being up-to-date. The most recent opinion on the ACCA web site is from 22 December, indicating that as usual it is running in real time or near real time. CAAF's web site puts up opinions the day they are issued and has recently been running only one working day behind on the Daily Journal -- a considerable improvement from past practice. Hhhhmmmm, that leaves out only one military appellate court web site. Who might that be?

NMCCA's Adams opinion is a 16-page opinion written by Senior Judge Wagner, who is joined by Judges Vincent and Stone. It takes on the unenviable task of explaining why no relief is warranted even though more than FIVE YEARS passed between sentencing and docketing of the case at NMCCA, 1,666 days of which occurred after the CA had already acted.

A major reason for the lengthy published opinion appears to be its recommendation that CAAF reconsider the triggering mechanism for a due process post-trial delay analysis. The opinion criticizes CAAF for "establish[ing] a threshold requirement that is considerably lower than the standard established in Barker." 2006 CCA LEXIS 332, at *14. But NMCCA acknowledges that "[d]espite our reservations regarding the application of such a sweeping threshold standard, since our superior court has adopted the Smith threshold standard and being bound by the precedential holdings of our superior court, we must apply that standard in this case." Id. at *16. But the court also "encourage[s] reconsideration by our superior court of the threshold standard triggering application of a due process analysis." Id. at *16-*17.

In reading this portion of NMCCA's opinion, I wondered whether the court was writing with an audience of the two new CAAF judges in mind. Is NMCCA attempting to influence their thinking about the post-trial delay issue?

The Navy-Marine Corps Court ultimately concludes that there was a due process violation, beating the goverment about the head and shoulders along the way, e.g., "The failure of the Government in the case to at least put in a minimal effort in providing some reason for the extensive delay in delivering this record to the court is unconscionable." Id. at *20, n.8. Yet, at the end of the opinion, NMCCA holds that despite the due process violation, it would not grant relief. Nor would NMCCA use its Article 66(c) sentence appropriateness authority to reduce the sentence.

One aspect of NMCCA's reasoning seems peculiar. In its sentence appropriateness analysis, the court says that the "crimes of which the appellant stands convicted are serious and certainly deserving of harsh punishment." Id. at *34. Yet the opinion tells us that SSgt Adams was convicted of "unauthorized absence, dereliction of duty, and five specifications of wrongful appropriation." Id. at *1. Maybe there is some reason NMCCA didn't share with us that explains why these particular Article 86, 92, and 121 offenses were more ghastly than the norm, but these don't sound like particularly "serious" crimes crying out for "harsh punishment."

NMCCA notes that this cases arose before the Moreno presumption took effect. Id. at *19. So perhaps this case is like the Battle of New Orleans, which was fought after the Treaty of Ghent had already ended the War of 1812: it will make the skirmish's winner (the government? NMCCA?) feel better, but it won't have any real impact on the issue's ultimate resolution. But, unlike the Americans and the British facing each other at Chalmette Plantation, NMCCA knew about the larger conflict's resolution. The court nevertheless weighed in with a 16-page published opinion. NMCCA seems to hope that the Treaty of Ghent's terms might still be subject to revision.

--Dwight Sullivan

To quote Willie Nelson, on the road again

Tomorrow afternoon I'll be heading down to Charlotte to attend Saturday's Meineke Car Care Bowl (Go Navy! Beat Boston College! It just doesn't have the right ring to it, does it?) I'll be back late Saturday night. If, in the meantime, CAAF continues to spend the week between Christmas and New Year's working in overdrive, I hope that Guert, the No Man, the Super Muppet, and the Columbus Clipper will blog away.

A look at Lee

If you had the power to change just one thing about the U.S. military justice system, what would you pick? I suspect that some of you would transfer the power to appoint members to someone other than the CA. While that is certainly a reform that should be implemented, that wouldn't be my highest priority. I think that the biggest problem with the U.S. military justice system today is the institutional disparity in resources between the prosecution and the defense. The trial counsel can issue subpoenas; the defense counsel can't. The trial counsel can get litigation funding from the CA without having to run the request by the defense counsel; if the defense wants funding, it must show its cards to the prosecution. The trial counsel is closely alligned with NCIS while the defense has no organic investigation capacity.

What we really need is a rule that says something like the trial counsel and the defense counsel shall have an equal opportunity to obtain witnesses and other evidence. What? Article 46 already says that? Well then how on earth could the system described above have developed? Do the two sides have equal opportunity to obtain evidence when one side has subpoena power and the other doesn't? Hardly. Do the two sides have equal opportunity to obtain witnesses when one side must lay its case out for the other to justify funding for a witness, but the other side gets to seek witness funding privately? Doesn't sound like it. Our current system is like a poker game in which three of the defense cards are dealt face up while all of the prosecution cards are dealt face down. It is anything but equal.

The good news is that yesterday's Lee decision and United States v. Warner, 62 M.J. 114 (C.A.A.F. 2005), have started to breathe life into what had previously been the false promise of Article 46.

Lee is a Erdmann-authored unanimous decision of the three CAAF judges who started this term. Distressingly, like so many military justice cases these days, it's a kiddie porn case. One of the government witnesses in the case was "a forensic expert from the Defense Computer Forensics Laboratory who had prepared a 'Media Analysis Report' based upon his examination of graphic images seized from Lee's laptop computer." Slip op. at 4. The government planned to have the expert opine that images on Lee's computer were real photographs.

The defense wanted the services of an expert consultant, who might also become an expert witness at trial, to challenge the government expert's relatively untested methodology. The government denied the defense's request to hire the expert consultant and the defense unsuccessfully renewed the request at trial. The military judge denied the defense motion primarily on the basis -- and I swear I'm not making this up -- that the defense was able to interview the government expert, who didn't identify any defects in his own methodology. Slip op. at 8. All right then -- I guess that issue is resolved.

Well, not so fast. Judge Erdmann tore up the military judge over this reasoning:

In concluding that the defense met its burden of establishing necessity, we are concerned with the manner in which the military judge responded to this request. The military judge’s questioning of defense counsel reflects that the military judge found that since the defense counsel had the opportunity to discuss the images with the Government’s expert, there was no need for a separate defense expert. Aside from the common-sense conclusion that [the government expert] would be unlikely to cast a critical eye upon his own expertise, his analytical methods, or his professional conclusions, making a selected Government expert available for interview prior to trial does not properly respond to a defense showing of necessity for expert assistance.

Slip op. at 11.

CAAF held that the military judge erred by denying the request and that the error prejudiced the defense, requiring that the findings and sentence be set aside.

Before the obligatory decretal paragraph, Judge Erdmann concluded his opinion with the following:

Courts-martial must not only be just, they must be perceived as just. The requirement of Article 46, UCMJ, for United States v. Lee, No. 03-0071/AF equal access to witnesses and evidence secures that just result and enhances the perception of fairness in military justice. Where the Government has found it necessary to grant itself an expert and present expert forensic analysis often involving novel or complex scientific disciplines, fundamental fairness compels the military judge to be vigilant to ensure that an accused is not disadvantaged by a lack of resources and denied necessary expert assistance in the preparation or presentation of his defense.

Slip op. at 13-14.

Lee and Warner are a good start, but they seem to be just the tip of the Article 46 iceberg. How many more ocean liners must steam into that iceberg before we end up with a military justice system that truly respects the requirement that the defense and prosecution have an equal opportunity to obtain witnesses and evidence? In order to save future cases, the Joint Services Committee should immediately begin to implement a system that would give both the prosecution and the defense subpoena power (as exists in civilian courts) and that would provide the defense with the right to an ex parte hearing to litigate funding requests for expert and lay witnesses and expert consultants. Providing these rights through regulatory changes would eliminate the prospect of losing convictions on appeal as the courts recognize that, properly construed, Article 46 already requires such measures.

--Dwight Sullivan

Supreme Court development and recap

The Supreme Court has docketed Craig v. United States, No. 06-802, for the 12 January 2007 conference. Craig, which deals with post-trial delay, was filed on behalf of a number of Marines and Sailors. The SG waived response, so unless the Court requests a response, the petition will be denied at the 12 January conference.

Two other petitions seeking cert to review CAAF decisions are also still alive: Rose, No. 06-771, which is docketed for the 5 January conference (and, like Craig, will die if the Court doesn't request a response), and Christian, No. 06-7397, the pro se cert petition where the Court requested a response, which is due by 17 January.

Of course, New, No. 06-691, a collateral attack on a court-martial conviction, is also still alive with a requested response from the SG currently due on 22 January.

There is still no sign of a cert petition in Kisala, though there is usually a lag between when a cert petition is filed and when it shows up on the Court's docket, so we can't yet conclude that no cert petition was filed.

New Air Force petition for extraordinary relief

Today's Daily Journal addition brings it within one day of being current. And today's crop included this intriguing docketing notice:

Misc. No. 07-8007/AF. Derek J. GRESKA, Petitioner. v. The Air Force Court of Criminal Appeals, Respondent. CCA S30987. Notice is hereby given that a petition for extraordinary relief in the nature of a writ of prohibition was filed under Rule 27(a) on this 27th day of December, 2006.

The Air Force Court as the respondent? If CAAFlog has any Air Force readers, could you please let us all know what this writ is about? The 26 December Daily Journal has a docketing notice in an Air Force writ appeal:

Misc. No. 07-8006/AF. Melvert WASHINGTON, Jr., Appellant/Petitioner v. United States, Appellee/Respondent. CCA 2005-03. Notice is hereby given that a writ appeal petition and alternative extraordinary writ petition for relief in the nature of a writ of error coram nobis were filed under Rule 27 on this 26th day of December, 2006.

Any gouge on that one, too?

--Dwight Sullivan

C.A.A.F. active over holiday season.

In its second decision in two days, the C.A.A.F. issued a decision today in U.S. v. Perez __ M.J. __ (C.A.A.F. 2006). Perez joins the long line of cases, broken only by U.S. v. Garcia, 59 M.J. 447 (C.A.A.F. 2004), where appellants have challenged the effectiveness of trial defense counsel on appeal and lost.

Perhaps the most interesting issue in the case was one that was not before the Court. First Sergeant Perez's daughter took the stand and, when she could not remember anything about her father's sexual abuse, the military judge allowed trial counsel to introduce her statements to CID detailing her sexual abuse at the hands of her father. Unless the military judge found that the victim's silence was due to First Sergeant Perez, there would appear to be a Crawford v. Washington, 541 U.S. 36 (2004), issue in this case. As if to acknowledge the inadmissiblity of the statements, the Court stated "The admissibility of these matters is not at issue under the grant of review in the present case." Slip op. at 5. Does anyone from DAD know if this issue was raised in the supp? If not, First Sergeant Perez may have another IAC claim. But, in light of Perez, it would probably not succeed.

And then there were five...

In addition to a new decision, the C.A.A.F. website indicates that judges Stucky and Ryan were sworn in on December 20, 2006. Interestingly, neither judge participated in the Lee decision. Does this reflect a decision on the Court that the two new judges will not participate in the cases argued last fall? If so, what will become of cases, if any, where the three-member court is divided? Stay tuned dear reader.

New CAAF opinion (Revised)

The No Man advises me that CAAF has released its opinion in United States v. Lee, __ M.J. ___, No. 06-0116/AF (C.A.A.F. Dec. 27, 2006).

The No Man can't advise you of this directly because he can't figure out how to log onto CAAFlog since last night's upgrade. I find that inability amusing, since I managed to do it and normally the No Man mocks me for my lack of computer sophistication. (I can't really complain since I often mock myself for my lack of computer competence.)

Appropriately enough, Lee is a case about whether the defense was erroneously "denied the assistance of an expert consultant in forensic computer examination in order to prepare to meet the charge against him and to cross-examine the Government’s expert in computer forensics." Slip op. at 3. CAAF held that the denial of the expert was reversible error. Id. When the requested expert gets done helping Airman Lee on remand, maybe he can help the No Man log onto CAAFlog.

I'm sure one of your friendly CAAFlog contributors -- the No Man, the Super Muppet, the Columbus Clipper, Guert, or I -- will post an analysis of Lee sometime tomorrow. (Guert, sorry to have left you off the list in the original post. I must have overlooked you because you, well, died in 1868. Sorry to break the news to you.)

--Dwight Sullivan

CGCCA's Upham opinion: still more proof that Sales and Peoples are abominations in the eyes of the law

The Coast Guard Court's recent Upham opinion is interesting in a couple of ways but infuriating on a far more important level. See United States v. Upham, __ M.J. ___, No. 1235, 2006 CCA LEXIS 331 (C.G. Ct. Crim. App. 20 Dec 2006).

First the interesting aspects of the case. The decision reversed the aggravated assault conviction of an HIV positive Coast Guard lieutenant who engaged in unprotected and unwarned intercourse with "KB." The military judge gave the members the following instruction:

You are advised that a person who engages in unprotected sexual intercourse with another person, knowing he is HIV positive, without informing his sexual partner and that his [sic] HIV and without using a condom has committed an offensive touching of that person. Also a person who wilfully and deliberately exposes a person to seminal fluid containing HIV without informing that person of his HIV positive status and without using a condom has acted in a manner likely to produce death or grievous bodily harm.

Slip op. at 4.

The government conceded and the court agreed that the italicized portion of the instruction was erroneous. The court endorsed the defense's argument that "whether uninformed, unprotected sexual intercourse while HIV-positive constitutes . . . a 'means likely to result in death or grievous bodily harm' [was a question] of fact for the members, and the military judge’s instruction improperly removed [this] issue[] from the court’s consideration." Id. at 5. The court also agreed with the defense that the military judge's instruction erroneously took the issue of whether the touching was offensive away from the members. Id. at 6. The court found that the former error wasn't harmless but the latter was. The court asked, "Is it clear beyond a reasonable doubt that a rational court would have found that KB would not have consented to unprotected intercourse if she had known Appellant was HIV-positive? We think it is." Slip op. at 7. Okay, so far, so good.

The second interesting aspect of the case is that the military judge who provided the instructions at issue is now the Chief Judge of the Navy-Marine Corps Court of Criminal Appeals, instantly producing a mini-service-split.

Now for the infuriating part. Lieutenant Upham was originally found guilty (pursuant to his plea) of one spec of conduct unbecoming. He was found guilty (contrary to his plea) of one spec of aggravated assault. The members sentenced him to a dismissal, confinement for nine months, and total forfeitures. His court-martial ended on 10 Dec 2004 and the Coast Guard Court issued its opinion two years and ten days later -- meaning that his complete term of confinement has long since run. The key issue in this case, as in most military justice appeals, was whether the defense could knock out the punitive discharge.

As a result of its opinion, the Coast Guard Court affirmed the conduct unbecoming spec but reduced the aggravated assault conviction to an assault consummated by a battery. At this point, the question is whether the Coast Guard Court will affirm the dismissal, set aside the dismissal, or remand the case for a new sentencing hearing, n'est ce pas? Well here is the Coast Guard Court's entire analysis of this key issue:

Reassessment of sentence

Since the sentence adjudged – dismissal, forfeiture of all pay and allowances, and confinement for nine months – exceeded the sentence we now find to be the maximum, the sentence must be reduced. We may affirm only so much of the sentence as we believe the court would have adjudged in the absence of the error; if we are unable to determine what that would have been, we must order a rehearing on sentence. United States v. Sales, 22 M.J. 305 (C.M.A. 1986). We are convinced that the court would have sentenced Appellant to no less than dismissal, forfeiture of all pay and allowances for four months, and confinement for four months.

Oh, really? How on earth does the court purport to know this? It doesn't say.

Back in my days as a military appellate defense counsel, I found few things more frustrating that the appearance of a Sales citation in the CCA opinion in one of my cases. A Sales cite almost invariably meant that I had succeeded in convincing the Navy-Marine Corps Court that the record of trial contained a non-harmless error, but the court was nevertheless going to deny my client any form of meaningful relief. What could be more frustrating? But worse than frustrating, the whole exercise is disingenuous. In a brilliant concurring opinion that deserves far more attention than it has received thus far, Judge Baker recently called attention to the Sales emperor's nakedness: "Absent clairvoyance, we cannot actually know how a military judge or a panel of members would have sentenced an appellant following a change in factual circumstances. This is especially true within a sentencing construct not based on guidelines or bands, but on discretionary sentence maximums and individualized adjudication." United States v. Moffeit, 63 M.J. 40, 42 (C.A.A.F. 2006) (Baker, J., concurring).

Of course, there is really no good answer to the Sales problem. Even remanding the case for a new sentencing hearing won't really return the accused to the status quo ante because he won't have the same members panel sentencing him the second time. We will never truly know what the original sentencing panel would have done. Even if the original trial was in front of a military judge, it is unlikely that the case would be remanded to the same judge in the wake of the years that passed while the case was on appellate review. And even if by some happenstance the case were to return to the very same individual who sentenced the accused the first time, the passage of time will have necessarily altered that individual's thinking, so again there is no likelihood that the second outcome will be the same as the first outcome would have been but for the error. To quote the Earl of Baltimore, "Everything changes everything."

Winston Churchill famously quipped that "democracy is the worst form of government, except for all those other forms that have been tried from time to time." The same can't be said of Sales. While there is no great solution to the problem, Sales and Peoples aren't the best of the bad options. In Moffeit, Judge Baker suggests some sound improvements to Sales, though I would go even further than he proposes.

Judge Baker writes: "I believe we are nearing a crossroads on sentence reassessment under United States v. Sales, 22 M.J. 305 (C.M.A. 1986), if we have not already reached it. In my view, we should either reassess the continued viability of the Sales presumption or offer further guidance on its application." Moffeit, 63 M.J. at 42 (Baker, J., concurring). He then proceeds to do that latter. I would prefer to do the former. Perhaps that explains why Judge Baker is writing in the Military Justice Reporter and I'm sitting in my basement at 2300 angrily typing into a blog.

But even if I would prefer a more radical solution, Judge Baker's analysis is compelling. He observes:

[T]here are important public policy and legal policy reasons to enjoin a more predictable framework for reviewing sentence reassessments. Among other things, there is considerable societal cost in time, money, and emotional investment when a sentence is reassessed by a Court of Criminal Appeals and then overturned by this Court -- sending it back years later for a sentence rehearing. Finality is lost. Sentencing witnesses must be recalled to testify about events long since past. Military members must also be pulled from the line of duty. As a result, I believe we should identify, in a nonexhaustive fashion, factors we will use to review reassessments of the Courts of Criminal Appeals.

In other words, we should identify those factors that buttress the presumption that appellate judges can indeed reassess a sentence for the offense involved. Otherwise, we should consider whether to abandon the presumption altogether. I believe the following nonexhaustive list of factors is relevant:

(1) whether there are changes in the penalty landscape, including instances where charges with significant exposure or aggravating circumstances are taken off the table. United States v. Buber, 61 M.J. 473 (8) (C.A.A.F. 2006);

(2) whether an appellant chose sentencing by members, instead of by military judge alone. As a matter of logic, judges of the Courts of Criminal Appeals are more likely to be certain of what a military judge alone would have done than what a panel of members would have done. Moreover, where an appellant selected sentencing by members, there may be due process considerations if sentence reassessment is conducted by appellate judges;

(3) the nature of the remaining offenses. Are the remaining offenses of the sort that a Court of Criminal Appeals should have the experience and familiarity with to reliably determine what sentence would have been imposed at trial by the military judges or members? Do the remaining offenses fit within a particular normative range based on repetition and scale within a construct of individualized sentencing based on individual offenses? Use or possession of certain drugs and unauthorized absence offenses might fit this category;

(4) whether the Court of Criminal Appeals identified and evaluated the factors that informed its reassessment decision on the record. We should afford greater deference to a clear and logical reassessment on the record.

Id. at 42-43.

Judge Baker's opinion in Moffeit is less than nine months old, so perhaps it is unsurprising that it has thus far been cited only once, and then for a proposition that is so well-established that it is perplexing why Judge Geiser reached for a concurring opinion to support it. ("Military judges are presumed to know the law and to follow it, absent clear evidence to the contrary. United States v. Moffeit, 63 M.J. 40, 42 (C.A.A.F 2006)(Baker, J., concurring in result)." United States v. Atterberry, No. NMCCA 200501564, 2006 CCA LEXIS 168, at *9 (N-M. Ct. Crim. App. 20 July 2006).)

Military appellate defense counsel should aggressively promote Judge Baker's template and academicians who study the military justice system should analyze it and comment on it. Upham would seem like an excellent opportunity to push the template because the CGCCA opinion would come out quite badly if subjected to Judge Baker's proposed scrutiny. The reduced offense carried only 1/6 the maximum confinement as the original charge. Even with the other offense on the charge sheet, the maximum confinement would have gone from four years to one year and six months if the offenses weren't considered multiplicious for sentencing purposes or from three years to one year if they were. Of course, the central issue in this case deals with the dismissal, not confinement. But it would seem that a dismissal would be far more likely if Lieutenant Upham was being sentenced for an act that recklessly endangered someone else's life than if he were being sentenced for an unwelcome touching. Judge Baker's second criterion also suggests the inappropriateness of applying Sales in this case: Lieutenant Upham chose to be tried by members. Judge Baker's third criterion also militates against reassessment: it would seem extraordinarily unlikely that the Coast Guard has a sufficient number of conduct unbecoming/assault consummated by a battery cases to have an established coin of the realm for that combination of offenses. As for Judge Baker's final criterion, the Coast Guard Court's application of Sales was entirely unsupported by analysis.

The Coast Guard Court held that the military judge made a serious error at trial that essentially directed the members to convict Upham of aggravated assault. The consequence of that ruling SHOULD be that the Coast Guard must retry that offense with a correct set of instructions (an option that the Coast Guard Court doesn't even offer to the government) or Lieutenant Upham should receive a new sentencing hearing to determine the appropriate punishment for the reduced offenses. For too long, CCAs have too often avoided the logical implications of their decisions by invoking the quick but disingenuous Sales fix. Just as Moreno held that CCA business-as-usual wasn't good enough, Upham could be an opportunity for CAAF to endorse Judge Baker's view that the Sales/Peoples business-as-usual isn't good enough.

--Dwight Sullivan

Update

CAAFlog was off line awhile last night to upgrade to the newest version of Blogger. That prevented me from posting my screed about the latest CGCCA case, which should go up tonight instead.

Military appellate jurisprudence crossing into the blue?

I know that military justice reformers -- a group that includes me -- are generally "purple." ("Purple" in this context has nothing to do with the Artist Formerly Known as Prince. It is military slang for "jointness.") But I have never shared that purple enthusiasm because I had always thought that the military justice system's shade of purple would look a lot like Army green. While there is much that the Army JAG Corps does very well, I believe that in some areas the naval justice system does things better. I had feared that in a joint military justice world, we would lose the naval service's better practices and do everything the Army way.

But now I wonder if I was seeing the wrong shade. Phil Cave has already taught us that the Air Force runs the CAAF web site. Apparently it runs the Coast Guard Court of Criminal Appeals' site as well. Here is the web address of the Coast Guard Court's on-line opinion page: https://afls16.jag.af.mil/dscgi/ds.py/View/Collection-262. Huh -- "jag.af.mil"? Here is the web address of the newest Coast Guard Court opinion, which I plan to hyperventilate about later tonight: https://afls16.jag.af.mil/dscgi/ds.py/Get/File-86113/061220_Upham_Opinion_with_seal.pdf. Again, note the "jag.af.mil." But here's a question -- if the Air Force runs the CAAF site, the Coast Guard Court site, and the Air Force Court site, how come both the CAAF and Coast Guard sites have content from last week but the latest posted Air Force Court opinion is from 30 November?

Here's still more evidence that the Air Force has imperialistic designs on all of the CCAs. Pull up any CCA opinion on LEXIS. Let's start with the most recent opinion, the Upham case mentioned above. Now click on the Copy w/Cite feature right next to the case citation at the top of the page. A new window will open with this citation: UNITED STATES v. UPHAM, 2006 CCA LEXIS 331 (A.F. Ct. Crim. App. 2006). It's a Coast Guard Court decision, but LEXIS's Copy w/Cite feature will tell you that EVERY CCA decision is an Air Force decision. Let's do Tingler, the most recent Navy-Marine Corps Court decision. Here's the LEXIS Copy w/Cite citation: UNITED STATES v. TINGLER, 2006 CCA LEXIS 329 (A.F. Ct. Crim. App. 2006). ACCA gets the same shabby treatment. See, e.g., United States v. Brooks, 2006 CCA LEXIS 288 (A.F. Ct. Crim. App. 2006). And, yes, Air Force Court opinions are correctly designated as Air Force Court opinions. See, e.g., United States v. Van Vliet, 2006 CCA LEXIS 309 (A.F. Ct. Crim. App. 2006).
Can we get this fixed? And while we are at it, can we get LEXIS to please have Copy w/Cite put Supreme Court citations in proper Bluebook format and drop the "U.S." from the parenthetical?

I would be no more enthusiastic about purple if it meant Air Force blue than if it meant Army green. "Aim High" might be considered motivational in the Air Force, but in the Marine Corps it just means you're wasting ammo.

--Dwight Sullivan

JAG Central moves to new address

JAG Central, a military justice blog that was around long before CAAFlog was born, has moved to a new address. Its contributors are deliberating over whether to continue with the blog. You can weigh in here.

JAG Hunter and its affiliated site, JAGMIRE, are also out there. Is anyone aware of any other military justice blogs?

p.s. -- to those of you who celebrate the day, Merry Christmas!

Stocking stuffer alert

I just ordered a copy of Willaim Thomas Allison's Military Justice in Vietnam: The Rule of Law in an American War, which has a December 2006 publication date. Has anyone read it yet?

The Barnes & Noble online price is 27.96 ($25.16 with member's discount). {By the way, the borders.com price is $34.95. I hadn't realized this until recently, but the bn.com price for books seems to be consistently lower than the borders.com/amazon.com price.)

Here is the publisher's description:

From the Publisher
The My Lai Massacre was the most publicized incident subjected to military law during the Vietnam War, but military lawyers in all the service branches had their hands full with less-publicized desertions, drug use, rapes, fraggings, black marketeering, and even small claims. William Allison reveals how the military justice system responded to crimes and infractions both inside and outside the combat zone and how it adapted to an unconventional political, military, and social climate as American involvement escalated.

In taking readers to war-torn Vietnam, Allison's study depicts a transitional period in the history of the Uniform Code of Military Justice, which was revised in 1968. Reflecting American beliefs in discipline and efficiency in military operations, the Code and its implementation were viewed as an integral facet of pacification and counter-insurgency programs. As Allison makes clear, military law and justice in Vietnam were not intended merely as behavioral controls but were also promoted to the Vietnamese as American ideals: respect for the rule of law and an example of the best that democracy had to offer.


American military law and lawyers made near-daily contact with the Vietnamese people, and those interactions open an unusual window on the war and also shed light on contemporary military operations and nation-building missions. Based on deep research into wartime archives and interviews with participants in that conflict (including his own father, a Marine Corps lawyer who served in Vietnam), Allison offers a reflective and well-rounded picture of daily life for military lawyers in Vietnam. That portrait also illuminates the complexities of trying to impose military law and justice on a foreign culture not accustomed to Western-style democracy.


As Allison shows, while the difficulties were great and military justice may have fallen short of its goals, as in the My Lai case, military lawyers conducted themselves with honor in Vietnam. And as military crimes in Iraq dominate today's news and military justice in a combat zone continues to challenge our democratic ideals, his book provides critical insight into the historical process that underlies American military law today.


This book is part of the Modern War Studies series.

Time is running out for cert petition in Rose (updated)

Unless the Supremes request a response to the cert petition in Rose v. United States, No. 06-771, before the 5 January 2007 conference, it will be denied then. (Rose, 64 M.J. 56 (C.A.A.F. 2006), is one of the CAAF opinions that rejected a legal challenge to a conviction for refusal to submit to the anthrax vaccine.) The Supremes requested a response in New -- also docketed for the 5 January 2007 conference -- on Thursday, 21 December. We will monitor whether the Court requests a response in Rose during the few working days left before the conference.

Kisala, 64 M.J. 50 (C.A.A.F. 2006), is the lead CAAF opinion concerning the anthrax vaccine. Kisala's deadline for filing a cert petition is Tuesday, 26 December. Does anyone know whether his counsel will seek cert?

--Dwight Sullivan

Supremes request response in New

We have previously examined the cert petition in United States, ex rel. New v. Rumsfeld [now v. Gates], No. 06-691. "New cert petition (pun intended)," 28 Nov 2006. We also noted that the National Institute of Military Justice has filed an amicus brief and that the filing of an amicus brief at the cert stage provides a significant statistical bump in the odds (though still low) of getting a grant.

We later noted that the SG had waived the right of response but predicted that the Supremes would request one. "SG waives response in New," 4 Dec 2006.

The Supremes have now done so. See http://www.supremecourtus.gov/docket/06-691.htm. The SG's response is due on 22 January 2007.

When New is rescheduled for conference, we will monitor whether this case makes SCOTUSblog's list of cases to watch. The issue concerning the scope of review for Article III courts' habeas review of court-martial convictions is enormously important, has produced disparate approaches in various circuits, and will become even more important if the President were to approve the death sentence in either Loving or Gray. It would be too much to say that a grant is probable, but it certainly doesn't seem improbable.

--Dwight Sullivan

SG waives right of response in Craig

The Supreme Court's web site now indicates that the SG waived the right of response in Craig v. United States, No. 06-802, the combined post-trial delay cert petition filed on behalf of 29 Marines and Sailors. See http://www.supremecourtus.gov/docket/06-802.htm.

Actual CAAF News: New Grants, Those Silly GIs Think They Know Post-Trial Delay, and a Government Concession (not a typo)

CAAF's Daily Journal holds much promise for future oral arguments and other interesting tidbits. First, the grants:

No. 06-0943/NA. U.S. v. Malcolm M. MACK. CCA 200400133. Review granted on the following issues:

I. WHETHER THE LOWER COURT ERRED BY HOLDING THAT THE MILITARY JUDGE'S DECISION TO SUBMIT THE ISSUE OF THE LAWFULNESS OF APPELLANT'S RESTRICTION ORDER TO THE MEMBERS WAS HARMLESS.

II. WHETHER THE EVIDENCE IS LEGALLY INSUFFICIENT TO PROVE THAT APPELLANT CONSPIRED WITH JOHN DOE TO OBSTRUCT JUSTICE WHERE THERE IS NO EVIDENCE IN THE RECORD THAT JOHN DOE EVER EXISTED.

III. WHETHER APPELLANT WAS DENIED DUE PROCESS OF LAW WHERE THE LOWER COURT DECIDED APPELLANT'S CASE 1,830 DAYS AFTER HIS COURT-MARTIAL.

and

No. 07-5002/AR. U.S. v. Terrel L. LEWIS. CCA 20030835. The Judge Advocate General of the Army requests that action be taken with request to the following issue: the QP is rather confusing, suffice it so say it involves the right to self-defense when you don't withdraw and the other party escalates the conflict.

and, finally,

No. 06-0860/AF. U.S. v. Jason A. RADER. CCA 369133. Review granted on the following issue:

WHETHER THE MILITARY JUDGE ERRED IN ADMITTING EVIDENCE AT TRIAL THAT WAS OBTAINED AS A DIRECT RESULT OF AN ILLEGAL SEARCH OF APPELLANT'S PERSONAL COMPUTER.

On post-trial delay the Army thinks they actually had a case of post-trial delay in No. 06-0889/AR. U.S. v. Daniel BAZAN. CAAF affirmed ACCA because the appellant could only piece together a year of delay. Those silly GIs, a year, that's standard processing time.

Finally, in No. 06-0745/AR. U.S. v. Anton C. EDWIN, apparently the government conceded the arguments raised by the appellant regarding findings in their brief. CAAF set aside the conceded arguments and remanded for proceedings on sentence. A "Hooah" to Army Appellate Government for knowing when to pick their battles.

Tough month for judge advocates (updated)

Between Col Murphy and LCDR Diaz, it's been a tough month for judge advocates. Here's an excerpt from the Marine Corps Times story on the Hadithah charges:

Capt. Randy W. Stone, 34, a legal officer who was assigned as 3/1’s battalion staff judge advocate. Stone is charged with two counts of dereliction of duty for negligently failing to ensure reporting and investigation of an alleged law-of-war violation and one count of violating a lawful order for failing to ensure the allegations were reported and thoroughly investigated.

From that description, I can't tell whether he's a judge advocate. Does anyone know?

[UPDATE: the AP article on the Hadithah charges refers to him as a "military attorney."]

Also, note this excerpt from President Bush's 30 August 2005 speech marking the 60th anniversary of VJ Day:

Fifty years ago we saw that character and that courage in men such as Leon Stone, who was a young Navy sailor aboard the battleship West Virginia, supporting the Marines at Iwo Jima. We saw that courage in men such as Jim Simpson, who was one of those Marines. They didn't know each other, but they came together to fight for America's security. They came together to join a mighty force that defeated the Japanese empire. Jim Simpson and Leon Stone did finally meet one day when Leon's son and Jim's daughter got married.

And today, their grandson, Captain Randy Stone, carries on a proud family tradition. Captain Stone is a Marine officer now serving in Iraq. He knows that he and his generation are doing the same vital work in this war on terror that his grandparents did in World War II. He also knows how this struggle will end. Randy says, "I know we will win because I see it in the eyes of the Marines every morning. In their eyes is the sparkle of victory." (Applause.)

Captain Stone proudly wears the uniform just as his grandfathers did at Iwo Jima. He's guided by the same convictions they carried into battle. He shares the same willingness to serve a cause greater than himself. Many of you grew up with dads and granddads who have similar stories about their World War II service. They're the modest sons of a peaceful country. And a grateful nation thanks them for their sacrifice that preserved our freedom and our way of life. (Applause.)

Same guy?

--Dwight Sullivan

Resource alert: new Military Law Review

While I was in the Big Apple, the Army JAG School posted the Summer 2006 issue of the Military Law Review. (Actually the weather here in Maryland before I left felt more like Summer 2006 than did the weather in New York while I was gone.) The issue includes two articles that will interest military justice mavens: LTC Matthew D. Ramsey on the shaken baby syndrome ("A Nuts and Bolts Approach to Litigating the Shaken Baby or Shaken Impact Syndrome"), and Major Keven (not a typo) Kercher on hair sample testing ("Time for Another Haircut: A Re-look at the Use of Hair Sample Testing for Drug Use in the Military"). The next issue of the Military Law Review will have an article by yours truly providing an empirical analysis of the current military death penalty system's performance since its origin in 1984. (Please form an orderly single file line -- I'm sure there will be enough copies for everyone.)

To kill the time while waiting for that article's publication, here's a scavenger hunt: can anyone find: (a) an online link to the Naval Law Review; and (b) a working link to the Air Force Law Review?

--Dwight Sullivan

Army JAG to CAAF: I am not Emmitt Smith, So Please Don't Make Us Do the Dearing Dance

In what can best be described as an amusing distraction from the real issues addressed by CAAF in their recent opinion in US v. Loving, 64 M.J. 132 (CAAF 2006), CAAF on Monday, Dec. 18, denied a Gov't request to stay issuance of the mandate in US v. Loving (here). The obvious reason the Gov't wanted to stay the mandate was to avoid the dance that has recently played out at CAAF concerning releasing prisoners from death row and/or post-trial confinement after issuance of a mandate by the Court. Recent indecision by the convening authority in US v. Dearing has led to a series of rebukes from the Court because the Gov't continues to hold the accused in post-trial confinement, in a case where partial findings and the sentence were set aside, vice pre-trial/re-sentencing confinement (discussed more fully here and here and here and here). Hopefully the Army convening authority in-charge has his/her act together and can piece together a few MPs to move Loving from death row in light of CAAF's mandate. (See commentary on the Dearing confinement here) Otherwise, Loving's counsel may be talking about Dearing. BTW, the next time Dearing's case makes CAAFlog this month, his counsel should probably get a set of steak knives. . . but, just keep those to yourself.

How hard is it to keep track of exhibits in murder cases?

The CAAF Daily Journal provides another example in a long history of N-M murder cases where the government can't seem to keep track of their own evidence. This case would be the recent murder case of U.S. v. Fuhrman, a not so nice chapter in the history of U.S. - Korean relations. Combine this with the recent decision in U.S. v. Quintanilla, where the trial counsel stole the murder weapon, and I think someone needs some remedial courses on evidence custody. Isn't keeping the evidence the surest way to guarantee a conviction stands even if the accused wins his appeals? If anyone knows, and can divulge the answer without having to kill me, I would be interested to know if Prosecution Exhibits 22 and 23 are actual exhibits and what they are, other than missing, because the court below referred to them only as potentially classified exhibits held in the WNYD SCIF (and some other not so descriptive words about how the documents were sezied).

CAAFlog on the road -- again

According to Robert Benchley, “In America there are two classes of travel -- first class, and with children.” My trip to New York tomorrow will decidedly be the latter. So there won't be any exciting follow-on reports this time about law museums or record-holding bars. But if one of the Macy's window displays happens to be devoted to the Ansell-Crowder dispute, I'll certainly write about it when I get back on Thursday.

In the meantime, I hope that the No Man, the Columbus Clipper, the Super Muppet, and Guert post new content in my absence. Happy holidays!

--Dwight Sullivan

Dear Dearing, You may already be a winner!

Today's update to CAAF's Daily Journal included the writ in Dearing that Guert had previously noted. "United States loses Dearing - again," 14 Dec 2006, available at http://caaflog.blogspot.com/2006/12/united-states-loses-dearing-again.html.

CAAF quickly dispatched the government's motion to stay the mandate, which was filed AFTER CAAF had already issued the mandate:

On December 4, after our Court issued the Dearing mandate, Respondent filed a motion to stay the mandate. In a separate filing on the same day, Respondent urged our Court to deny Petitioner’s request for extraordinary relief while the Government considered whether to seek review of the Dearing decision in the Supreme Court. We note that the Dearing mandate was issued in accordance with our rules seven days after we completed action on the petition for reconsideration. See C.A.A.F. R. 43A(a). Respondent did not file the request for a stay until after the mandate was issued. Respondent has provided no explanation or basis for its untimely filing. Accordingly, the motion to stay the mandate is denied.

United States v. Dearing, __ M.J. ___, Nos. 05-0405 & 07-8004/NA (C.A.A.F. Dec. 14, 2006) (summary disposition).

Nor would CAAF recall its mandate:

Respondent has not identified any extraordinary circumstance warranting recall. Respondent simply cited the internal consideration within the executive branch on whether to seek discretionary Supreme Court review of our decision in Dearing. Such internal review is a standard feature of government litigation, not the type of “grave, unforeseen contingenc[y]” described in Calderon, 523 U.S. at 550. The case before us does not appear to present any extraordinary circumstances. See 2006 CAAF LEXIS 1399, *2-*3 (discussing the context of the present litigation).

Id.

CAAF then easily concluded that Dearing was entitled to either release or tranfer to pretrial confinement status because he had already served more than the maximum period of confinement for the one offense of which he remains convicted. CAAF emphasized, "Our Court’s decision on the merits in the present case is in the same posture, in terms of finality, as the decision of any other appellate court that has issued a mandate and that is subject to discretionary review by the Supreme Court." Id.

Granting a writ in this case was necessary and proper. It was the only means to compel the government to do what it was already legally obligated to do: comply with CAAF's ruling and mandate. So there was nothing "extraordinary" about the writ, but only about the circumstances that required it.

--Dwight Sullivan

Two new CCA published opinions: one dead zombie and one riddle solved

December has brought us warm weather and two new NMCCA published opinions. Both are in the LEXIS "CAAF and published CCA opinions" file, though (predictably) neither is on either NMCCA's web site or WESTLAW.

A zombie is “killed” by a sharp blow to the head. In United States v. Tingler, __ M.J. ___, 2006 CCA LEXIS 329 (N-M. Ct. Crim. App. Dec. 14, 2006), the Navy-Marine Corps Court tries to kill the Swiderski zombie. In United States v. Swiderski, 548 F.2d 445 (2d Cir. 1977), the Second Circuit held that two individuals who jointly obtain drugs are not guilty of distribution when they transfer the drugs between the two of them for their personal use. Military courts have so marginalized Swiderski that a sharp blow to its head seems hardly necessary. But, when dealing with the undead, it pays to be safe. The Navy-Marine Corps Court observed, “The validity of the Swiderski reasoning is in considerable doubt among the federal circuits. ‘No other circuit has followed the Second Circuit in Swiderski.’ United States v. Washington, 41 F.3d 917, 920 n.2 (4th Cir. 1994).” Tingler, 2006 CCA LEXIS 329, at *12. Bash! “We hold that sharing an illegal drug between two servicemembers is distribution and not ‘personal use.’ We expressly reject Swiderski's applicability to drug offenses alleged under the UCMJ.” Id. Wham! “Assuming arguendo that Swiderski does apply to military courts-martial, we are confident that it does not control the appellant's case because it is factually distinguishable . . . .” Id. at *12-*13. Pow! Okay, Judge Carver, you can stop hitting it with the shovel – I think it’s really dead now. But wait! There’s more! “Even if the Swiderski holding is inapplicable or distinguishable, can the appellant be convicted of distribution of cocaine by sharing cocaine with FA Robbins after FA Robbins originally provided the cocaine to the appellant?” Id. at *18. Of course he can. Finally, NMCCA declined to give relief even though it had to send the case back to the CA for a new action TWICE, because the first time it was sent back to the CA, his action contained the same ambiguity as the original action. Blam! Wow, I hope that Moreno doesn’t turn into a zombie!

In Unites States v. Pflueger, __ M.J. ___, 2006 CCA LEXIS 328 (N-M. Ct. Crim. App. Dec. 5, 2006), NMCCA solves that age-old riddle: is there a practical difference between remission of a BCD and appellate disapproval of a BCD? NMCCA tells us that the answer is yes, with the latter being more favorable to the accused. (NMCCA’s solving of this riddle is bad news for the Columbus Clipper, who had planned to pass many a Kabul night by pondering this very question. Sorry, Marcus, looks like you’ll have to buy a few extra Sudoku books.) CAAF had remanded Pflueger to NMCCA to answer a series of questions concerning the practical effect of a remitted BCD. United States v. Pflueger, 61 M.J. 272 (C.A.A.F. 2005) (summary disposition). NMCCA explained that “[b]ecause the punitive discharge remained part of the adjudged and approved sentence after it was remitted, it continued to qualify the appellant for automatic forfeitures until it was disapproved in our decision of 30 July 2004.” Pflueger, 2006 CCA LEXIS 328, at *5-*6. The disapproval of the BCD, on the other hand, entitled the accused “to repayment of all amounts that were taken from his pay as a result of automatic forfeitures.” Id. at *8. Accordingly, NMCCA concluded, an appellate decision declining to affirm a BCD that has already been automatically remitted provides meaningful relief to the accused. Kablouie! Whoops -- I thought I saw a zombie.

--Dwight Sullivan

Guert alert

If you haven't read Guert's profile yet, it's worth taking a couple of minutes to do so. :-)

USAF post-trial delay?

Looks like the Air Force ran into some post-trial delay problems today in the Dunham case. I didn't know they had any such problems. Is this the first instance of CAAF finding unreasonable post-trial delay in a non-sea service case?

CAAFlog Talk with Linda Richman

Do you remember that recurring Saturday Night Live scetch in which Mike Myers would play Linda Richman, the hostess of Coffee Talk? Here's Wikipedia's entry on the sketch's format (yes, OF COURSE there is a Wikipedia entry on Coffee Talk):

Whenever Linda would get upset, she would put her hand on her chest and say "I'm all verklempt" or "I'm a little verklempt". Then she would say, "Talk amongst yourselves." She would often follow this with an example, by saying, "I'll give you a topic." The topic would usually follow the format: "(Two/three-part phrase) is neither (first part) nor (second part) nor (occasional third part). Discuss."

Examples:

"The radical reconstruction of the south after the Civil War was neither radical nor a reconstruction. Discuss."
"The Holy Roman Empire was neither holy nor Roman nor an empire. Discuss".
"The peanut is neither a pea nor a nut. Discuss."
"The Partridge Family was neither a partridge nor a family. Discuss."
"The Prince of Tides was neither about princes nor tides. Discuss."
"The Mormon Tabernacle Choir was neither Mormon, nor a tabernacle, nor a choir. Discuss."
"Duran Duran was neither Duran nor Duran. Discuss."
"The Italian Neoealist Movement in film was neither Italian nor neo nor particuarly a movement. Discuss."
"The Progressive Era was neither progressive nor an era. Discuss."
"The Thighmaster was neither a thigh nor a master. Discuss."
"Rhode Island is neither a Rhode nor an island. Discuss."
"FDR's New Deal was neither new, nor a deal. Discuss."
"The chickpea is neither a chick, nor a pea. Discuss."
"Ralph Fiennes' name is neither spelled Rayph nor Fines. Discuss."

http://en.wikipedia.org/wiki/Linda_Richman (footnotes omitted) (the footnotes in the original, by the way, link to SNL transcripts; unbelievable, baby!) (pop culture alert: the use of "baby" in the previous parenthetical refers to an even more popular Mike Myers character).

Today -- a day when the various military justice web sites seem to contain nothing that is both new and interesting -- we are introducing a new CAAFlog feature: CAAFlog Talk with Linda Richman.

Talk amongst yourselves. I'll give you a topic. Gene is right that the four CCAs should be eliminated and CAAF should be given mandatory jurisdiction over all general and special court-martial convictions. Discuss.

My understanding is that there are 19 judges on the Navy-Marine Corps Court of Criminal Appeals. Additional military officers serve as commissioners for those judges. In this time of armed conflict when U.S. military forces are strained near the breaking point, this seems like an incredible misuse of military personnel. How many officers could be diverted to far more useful duties if the Navy-Marine Corps Court, ACCA, AFCCA, and CGCCA just went out of business, transferring all of their duties to the civilian personnel at 450 E Street, N.W.? (Okay, not many in the case of the Coast Guard Court, but a lot among the other three.)

Additionally, the whole system would move at a much faster pace. Instead of an initial appeal to the CCA, a petition to CAAF, and then briefing on the merits to CAAF, there would be just one round of briefing. CAAF's case load would go up, but the number of SUBSTANTIVE cases that it sees would not increase appreciably. Also, the review that CAAF gives to cases coming in on petition is astounding -- almost certainly at least as in depth as that which one of the Article III courts of appeals gives to cases that it summarily affirms. The amount of work that would go into a summary affirmance would not be appreciably greater than that required for a petition denial. But because the number of cases initially coming in through CAAF's doors would be greater than the current caseload, I would provide that CAAF would sit in three-judge panels with en banc review permitted, so that the Court could iron out any differences among various panels. This would reduce the number of cases that any one judge would have to resolve and probably end up with a similar case-per-judge number as in the current system.

If cases were moved faster, appellants would receive their DD 214s more quickly, thereby further reducing DOD costs by decreasing the appellate leave population, which gobbles up some amount of military resources, particularly medical and dental assets.

Such a system would eliminate the need to devote massive resources to the tip of the tail to solve the Moreno problem. Indeed, it would save resources that could then be devoted to teeth, not tail.

One question that would have to be addressed: in a system where CAAF is the only appeal short of certiorari to the Supreme Court, should CAAF be given Article 66-type factual sufficiency and sentence appropriateness powers, or should CAAF's review resemble that which one of the geographic courts of appeals would give to a criminal conviction from a U.S. district court?

I'm getting all verklempt just thinking about it. What is your reaction?

--Dwight Sullivan

Craig QP

Whether a harmless beyond a reasonable doubt analysis applies to a violation of an appellant's right to a speedy post-trial appeal, which is recognized as a constitutional due process right and is tested under an analysis that already includes the element of prejudice derived from Barker v. Wingo, 407 U.S. 514 (1972).

'Tis the season to file cert petitions?

In its end of term case dump, CAAF decided 76 cases by summary disposition and 11 cases by published opinion during September. For those cases in which no reconsideration petition was filed, the 90-day deadline for certiorari is now upon us or fast approaching.

On 11 December, Michael Craig filed a cert petition, No. 06-802. CAAF summarily affirmed his case on 11 September, ruling that any post-trial delay in his case was harmless. No. 05-0278/MC. CAAFlog is trying to get the question presented from Craig's cert petition and we'll post it when we have it.

A cert petition has already been filed seeking review of one of the September published opinions, United States v. Rose, 64 M.J. 56 (C.A.A.F. 2006). Are Rose and Craig the first in a wave of military cert petitions that will be filed in December?

--Dwight Sullivan

United States loses Dearing - again.

CAAFlog

The C.A.A.F. issued an order today granting OSSN Brian Dearing's petition for a writ of mandamus and ordering the immediate release of Dearing from the United States Disciplinary Barracks. In its opposition to the petition, the government asked the Court to stay its previously issued mandate. It also argued that the United States could continue to hold Dearing in confinement until the ninety-day period to petition the Supreme Court had elapsed. The Court soundly rejected both arguments. The government must now properly place OSSN Dearing in pre-trial confinement for what the N-M.C.C.A. described as a "road rage" incident that occurred on September 18, 1999, or release him. OSSN Dearing should be home for Christmas.

CAAF denies reconsideration in Loving

There's no question as to the top news du jour. Today's Daily Journal update includes the following entry from Monday, 11 December:

PETITIONS FOR RECONSIDERATION DENIED

No. 06-8006/AR. Dwight J. LOVING, Petitioner, v. United States, Respondent. CCA 8901123. On consideration of Respondent’s petition for reconsideration of this Court’s opinion, 64 M.J. 132 (C.A.A.F. 2006), said petition for reconsideration is denied.

This starts the SG's 90-day clock to seek cert. At the Army JAG School's New Developments course last month, an Army GAD attorney indicated that the Army would seek cert if CAAF denied the reconsideration petition. Of course, the Army will have to convince the SG first. Loving is such a straightforward application of Wiggins that it seems implausible that the SG would seek review of the substance of CAAF's holding. But the jurisdictional issue -- does CAAF have the power to issue a writ between the time when the Supreme Court affirms a military death penalty case and when the President acts on the death sentence pursuant to Article 71 -- may be sufficiently intriguing to produce a cert petition. Predictions?

--Dwight Sullivan

New CAAF grant

On 7 December, CAAF granted review of the following issues:

I. WHETHER THE MILITARY JUDGE ERRED IN FINDING THERE WAS A "DE FACTO DISMISSAL" OF THE CHARGES AGAINST APPELLANT ON 6 NOVEMBER 2001 THAT WAS DONE FOR A LEGITIMATE REASON.

II. WHETHER THE MILITARY JUDGE ERRED IN FINDING THAT APPELLANT WAS NOT DENIED THE RIGHT TO A SPEEDY TRIAL UNDER ARTICLE 10, UCMJ.

III. WHETHER APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL DEFENSE COUNSEL DID NOT INFORM HIM THAT AN UNCONDITIONAL GUILTY PLEA WAIVED THE SPEEDY TRIAL ISSUE UNDER R.C.M. 707.

IV. WHETHER APPELLANT'S PLEA WAS IMPROVIDENT WHERE IT WAS ENTERED UPON THE MISTAKEN BELIEF THAT HIS R.C.M. 707 SPEEDY TRIAL ISSUE WOULD BE PRESERVED FOR APPEAL.

United States v. Tippit, No. 06-0914/AF.

The Air Force Court's rather extensive unpublished opinion in the case can be found here:

https://afcca.law.af.mil/content/afcca_opinions/cp/tippit-35624.u.pdf

The last of the migrating arguments lands

The last of the migrating CAAF arguments, United States v. Flores, No. 06-0675/MC, has been spotted hovering over the Pelican State. See generally "Migrating argument heading south for the winter," 8 Dec 2006, available at http://caaflog.blogspot.com/2006/12/migrating-argument-heading-south-for.html.

Flores will be heard on 12 Feb 2007 as a Project Outreach argument at the Southern University Law Center in Baton Rouge, Louisiana.

Two more cert denials

As expected, today's order list included denials of the military cert petitions in Washington, 06-654, and Jenkins, 06-650.

Two cert petitions seeking direct review of CAAF opinions are still alive: Christian, 06-7397, and Rose, 06-771. We are also following the cert petition seeking review of the D.C. Circuit's rejection of a request for collateral relief from a court-martial conviction in United States, ex rel. New v. Rumsfeld, No. 06-691.

SG waives response in Rose

The Solicitor General has waived the United States' right to respond to the cert petition in Rose v. United States, No. 06-771, the anthrax vaccine case. Will a Justice request a reply from the United States?

Three more published CCA opinions

WESTLAW now includes three additional published CCA opinions. I can’t call them “new” opinions since one of them – an Air Force Court decision – was released more than a month ago though, you guessed it, it still isn’t up on the Air Force Court’s web site. Interestingly, all three opinions set aside CA’s actions.

Here are the three opinions:

United States v. Martin, __ M.J. ___, 2006 WL 3518250 (C.G. Ct. Crim. App. Dec. 6, 2006) (per curiam). Martin sets aside the convening authority’s action and remands the case for compliance with the Coast Guard Court’s defense-favorable interpretation of an ambiguity in the pretrial agreement’s maximum sentence provision.

(This case has been on the Coast Guard Court’s web site since it was released, but the Coast Guard Court’s web site didn’t indicate that it was a published opinion, so I hadn’t previously written about it.)


United States v. Bakcsi, __ M.J. ___, 2006 WL 3513901 (A.F. Ct. Crim. App. Nov. 29, 2006). Bakcsi is by far the most interesting and important decision of the three. It remanded the case for a new CA’s action because the record contained inadequate proof that the convening authority had actually reviewed all of the clemency materials submitted by the defense. As a lawyer raised in the naval justice system, I found this opinion remarkable. Almost every singe Navy and Marine Corps case that includes an 1105 submission would fail to meet the standard set out in Bakcsi. Navy-Marine Corps Appellate Defense Division counsel should certainly start raising issues before both NMCCA and CAAF based on the standards set out in Bakcsi and the cases it cites. Here’s a flavor of the Air Force Court’s opinion: “In the appellant's case, we are not convinced that the convening authority considered all of the clemency matters submitted by the defense, even though the convening authority's initials are on the top line of the defense counsel's clemency memorandum. This memorandum had two submissions from the appellant listed as attachments. It is not apparent from the record that the convening authority reviewed and considered them. '[T]his court will not “guess” as to whether clemency matters prepared by the defense counsel were attached to the recommendation or otherwise considered by the convening authority.'” Id. at *2 (quoting United States v. Craig, 28 M.J. 321, 325 (C.M.A. 1989)).

In language reminiscent of appellate warnings before the courts really began lowering the boom on post-trial delay, the Air Force Court also wrote: “Unfortunately, Craig errors continue to be ubiquitous today, even though this Court cautioned SJAs in 1992 to follow the clear guidance provided by statute, rules, and well-established case law to avoid any question as to whether a convening authority properly considered defense submissions before taking action. Crawford, 34 M.J. at 761-62. It bears repeating that speculation concerning the consideration of such matters simply cannot be tolerated in this important area of command prerogative.”

Rough translation: prepare for more judicial spankings.


United Stats v. Van Vliet, __ M.J. ___, 2006 WL 3513905 (A.F.Ct. Crim. App. Nov. 6, 2006). Van Vliet held that the SJA incorrectly advised the CA that the appellant's post-trial request to resign in lieu of trial by court-martial could not be processed because it was untimely. The Air Force Court noted that “[a]lthough we will not speculate as to whether the Secretary will approve the appellant's RILO request, we are convinced that the convening authority did not have the authority to take final action in the appellant's case while Secretarial action on the appellant's RILO request was still pending.” Id. at *5.

--Dwight Sullivan

Confirmation confirmation

Now there is official confirmation of the information that CAAFlog had previously learned unofficially: the Senate has confirmed the nominations of Scott Stucky and Meg Ryan to serve as CAAF judges.

This is from the Senate's web site:

NOMINATIONS CONFIRMED (CIVILIAN)

The following civilian Executive Nominations were confirmed by the Senate during the current congress. Nominations flagged with an asterisk were approved subject to the nominee's commitment to respond to requests to appear and testify before any duly constituted committee of the Senate. The nominations are listed to reverse chronological order based on the date of confirmation.


December 09, 2006
. . . .

PN2183 THE JUDICIARY
Margaret A. Ryan, of Virginia, to be a Judge of the United States Court of Appeals for the Armed Forces for the term of fifteen years to expire on the date prescribed by law.

PN2184 THE JUDICIARY
Scott Wallace Stucky, of Maryland, to be a Judge of the United States Court of Appeals for the Armed Forces for the term of fifteen years to expire on the date prescribed by law.

http://www.senate.gov/pagelayout/legislative/one_item_and_teasers/nom_confc.htm

And then there were five

CAAFlog understands that early this morning, the Senate confirmed the nominations of Scott Stucky and Meg Ryan to be judges on the United States Court of Appeals for the Armed Forces. Congratulations go out to both the nominees and the military justice system itself, for adding two such distinguished lawyers to CAAF's bench.

Air Force JAG may want to check a few more bar licenses.

CAAFlog:

There is no military precedent to support the assertion by "Air Force officials" that defense attorneys do not have to be licensed by a state bar for a military verdict to be valid - unless they are looking at CMA's 1963 decision in United States v. Culp, 33 C.M.R. 411 (C.M.A. 1963). In Culp, the CMA found that there was no sixth amendment right to counsel at courts-martial and that servicemembers were entitled only to the counsel that Congress gave them. The Court also discussed the Navy's law specialist program and how the navy was unable to provide counsel to its sailors at special courts-martial because "of the distribution of its personnel worldwide, many in small ships upon which no qualified counsel are available." Id. at 416.

All of that changed with the Military Justice Act of 1968. I am told that yesterday was the 39th anniversary of the founding of the Navy's JAG Corps and that punitive discharges are no longer awarded to sailors represented by commissarymen who have attended a two-week law specialist program in Newport. And, although Culp has never been directly overruled, it is now generally accepted that at least those portions of the Sixth Amendment that deal with the right to counsel apply to servicemembers.

While the assertion by the Air Force that military attorneys do not have to be licensed for a military verdict to be valid is of dubious validity, there is at least civilian precedent that supports their second assertion that convictions of defendants represented by unlicensed attorneys may be upheld. In fact, the circuits have split on whether representation by an unlicensed attorney is jurisdictional error requiring per se reversal or whether, like in the Jackson case cited by Mr. Sullivan, such errors will be tested for prejudice under the traditional Strickland framework. Compare, e.g., United States v. Maria-Martinez, 143 F. 3d 914 (5th Cir. 1998); Vance v. Lehman, 64 F. 3d 119 (3d Cir. 1995); United States v. Stevens, 978 F.2d 565 (10th Cir. 1992); United States v. Williams, 934 F.2d 847 (7th Cir. 1991); United States v. Mouzin, 785 F.2d 682 (9th Cir. 1986) with, e.g., United States v. Novak, 903 F. 2d 883 (2d Cir. 1990); Solina v. United States, 709 F. 2d 160 (2d Cir. 1983); Harrison v. United States, 128 U.S. App. D.C. 245 (D.C. Cir. 1967).

Mr. Sullivan's prediction that "we might see some additional case law develop in this area" may be a great understatement.

"I'm not just a JAG, I'm also a client"

Do you remember those old "Hair Club for Men" TV commercials in which Sy Sperling said, "I'm not just the president, I'm also a client"? Maybe the Air Force Judge Advocate General Department's new recruiting slogan should be, "I'm not just a JAG, I'm also a client."

Anyone who cares enough about military justice to be reading my random thoughts on a blog certainly knows about the recent unpleasantness involving the Air Force's top JAG. Now the Air Force Times is reporting that a senior Air Force judge advocate was disbarred more than two decade ago. See http://www.airforcetimes.com/print.php?f=1-292925-2406397.php.

Erik Holmes' report states that Col Michael D. Murphy, the commander of the Air Force Legal Operations Agency, "was relieved of command Nov. 30 after it was discovered he was disbarred in Texas and Louisiana more than 20 years ago and does not hold a law license." He "was disbarred in Texas in 1984 and Louisiana in 1985 but apparently never told his commanders."

The Air Force is now adopting a system in which judge advocates must prove their status. The Marine Corps has had such a system for years. Of course, we had our own prominent incident of a judge advocate who wasn't actually a lawyer. See generally United States v. Zander, 46 M.J. 558 (N-M. Ct. Crim. App.), petition denied, 48 M.J. 18 (C.A.A.F. 1997); see also Lincoln Caplan, The Jagged Edge, ABA J., Mar. 1995, at 52.

The Air Force Times article about Col Murphy explains that he "first ran into trouble in 1981, when he failed to file an appeal on time for a client convicted of burglary, according to court documents." In 1982 he was accused of professional misconduct and in 1983, Texas suspended his law licsense for seven years. But in his January 1983 application for the Louisiana bar -- after Texas had begun disciplinary proceedings against him -- "he stated under oath that he had never been sued nor been the subject of a disciplinary action. Both Texas and Louisiana permanently disbarred Murphy for lying on his Louisiana bar application; Texas did so in May 1984 and Louisiana in September 1985."

I hasten to add, in all seriousness, that Col Murphy is entitled to a presumption of innocence in any disciplinary proceedings that might be brought against him and we should not assume that he is guilty simply because the story was reported in the press.

The Air Force Times raises an interesting legal issue. The article states, "But Air Force officials said there is legal precedent upholding convictions of defendants represented by unlicensed attorneys, and that attorneys don’t have to be licensed by a state bar for a military verdict to be valid." In a case involving the infamous Jeffrey Zander, the Navy-Marine Corps Court held that where an accused is represented by both a licensed attorney and an unlicensed attorney, the error is tested for prejudice. United States v. Jackson, 54 M.J. 527 (N-M. Ct. Crim. App. 2000). See also United States v. Harness, 44 M.J. 593 (N-M. Ct. Crim. App. 1996). But might the result be different where the unlicensed attorney is the only defense counsel? The great legal journalist (and, until it went belly up, Legal Affairs editor) Lincoln Caplan noted in his ABA Journal article about Zander: "the Marines reviewed all the cases in which Zander served as defender. In 21 cases resulting in convictions after trial, a military review court released two Marines from long prison terms. It set aside punitive discharges for 17 other Marines, reinstating them on active duty or giving them honorable discharges. In each case, the Marine Corps paid all money forfeited as a result of punishment."

We might see some additional case law develop in this area.

--Dwight Sullivan

Migrating argument heading south for the winter

I previously wrote about the great oral argument migration of the 2007 term, in which the December oral arguments moved back, in an apparent effort to have them heard by a full five-member court. (We should know by tomorrow whether there will, indeed, be a full five-member court before the January oral arguments.) See "The CAAF oral argument migration," 23 Nov 2006, available at http://caaflog.blogspot.com/2006/11/caaf-oral-argument-migration.html. In that post, I noted that two of the migrating arguments -- Harrow, No. 06-0474/AF, and Flores, No. 06-0675/MC -- hadn't landed in January with the rest of the flock.

One of the missing arguments has now been located: it migrated south for the winter by itself. Harrow will be heard in a Project Outreach argument at the Mississippi College School of Law on 14 February 2007. Ah, Valentine's Day in Jackson, Mississippi -- what could be more romantic? But I don't see any signs of Flores. Is it still aimlessly flying around?

--Dwight Sullivan

Christian cert petition

The SG has sought and received an extension to file a response in Christian v. United States, No. 06-7397, until 17 January 2007.

CAAF adopts rules changes

Today CAAF announced several amendments to its rules, effective 1 January 2007. See http://www.armfor.uscourts.gov/Rules2007Jan.pdf.

CAAFlog

CAAFlogAre civilians soon to be tried by courts-martial?

According to a December 5, 2006, article in the Washington Post, the number of civilian contractors in Iraq now exceeds 100,000. That is nearly the same amount of U.S. troops in Iraq. With the armed forces now relying on civilians for half of its combat force, can the courts-martial of civlians be far off? I think Gene should avoid taking that lucrative Halliburton contract until the full effects of the amended Article 2 are known.

New cert petition distributed for conference

The cert petition in New -- the collateral challenge to a court-martial conviction for, among other things, refusal to wear a UN blue beret -- has been distributed for conference on 5 January 2007. The SG had previously waived the right to respond. See "SG waives response in New," 4 Dec 06, available at http://caaflog.blogspot.com/2006/12/sg-waives-response-in-new.html Unless the Court requests a response, the cert petition is doomed to denial. I continue to predict such a request.

--Dwight Sullivan

Rare writ

Name something rare. A diamond? Hardly. We see people wearing diamonds every day. A bald eagle? Not really. There are 7,000 bald eagles in CONUS and 100,00 in Alaska. But here is something that is rare: an extraordinary writ issued by a Court of Criminal Appeals. When’s the last time you saw one of those? Perhaps, like a modern 8-year-old Virginia O’Hanlon, you weren’t sure whether they actually exist. See http://www.stormfax.com/virginia.htm. But yes, Virginia, there is a CCA-issued writ.

In United States v. Orzechowski, __ M.J. ___, NMCCA No. 200300711, 2006 CCA LEXIS 307 (N-M. Ct. Crim. App. Nov. 15, 2006), the Navy-Marine Corps Court granted a writ of habeas corpus and ordered Lance Corporal Orzechowski’s immediate release from confinement.

As the Navy-Marine Corps Court helpfully summarized, the writ was based on “an ex post facto application of good conduct time credits, based on a Navy regulation enacted after his offenses and after his original trial that illegally increased his time in confinement.” Id. at *1. Orzechowski was originally sentenced to 15 years of confinement in 2001. In 2004, DOD adopted a less generous good conduct time (GCT) formula. Then, in 2005, NMCCA set aside his sentence and authorized a rehearing. (Yes, can you believe it? Orzechowski has won meaningful relief from NMCCA TWICE. He’s really going to bust the curve for all the other naval appellants.) He ended up with eight years of unsuspended confinement.

After Orzechowski was resentenced, the USDB calculated his GCT according to the less favorable rates in the 2004 DOD Instruction and a 2006 SECNAVINST. Under the old rates, he would have been released on 28 August 2006. But under the new rates, he wouldn’t be released for another two-and-a-half months.

Relying heavily on Weaver v. Graham, 450 U.S. 24 (1981), NMCCA held that “the application of the new, less generous GCT provisions to his post-rehearing confinement violates the Constitution’s prohibition against ex post facto laws. U.S. Const. art. I, § 9, cl. 3.” Id. at *5.

One interesting portion of the opinion concerns the government’s argument that “an ex post facto analysis is inappropriate because the mechanism for increasing the petitioner’s prison time was a regulation, not a statute.” Id. at *9. NMCCA decisively rejected this argument, reasoning that “a legislative body cannot escape the Constitutional constraints on its power by delegating its lawmaking function to an agency.” Id. at *9-*10.

NMCCA issued its writ directing Orzechowski’s immediate release on 21 September – 23 days after he should have been released but 51 days before he would have been released without the writ. In Noyd v. Bond, 395 U.S. 683 (1969), which expressly recognized CMA’s authority to issue writs, the Supreme Court wrote, “While it is true that Captain Noyd has only two days yet to serve on his sentence, he should not be required to surrender his freedom for even this short time unless it is found that the law so requires.” Id. at 699. Orzechowski seems like an appropriate, albeit rare, exercise of the CCAs’ extraordinary writ power as recognized by Dettinger v. United States, 7 M.J. 216, 219 (C.M.A. 1979).

--Dwight Sullivan

Classy CAAF confirmation hearing

NPR this morning portrayed the Gates confirmation hearing as a play with insufficient drama and too much love. If so, perhaps the committee was feeling the residual effects of Monday's CAAF confirmation love fest.

I've now read a transcript of the CAAF confirmation hearing. As one would expect when the committee is considering the nomination of one of its own long-serving staff members, the hearing completely amicable. And why not? Both nominees are exceptionally qualified for their new positions.

The couple of interesting moments during the hearing arose from the Senators' questions rather than the nominees' answers. The only Senators who participated in the hearing were Chairman Warner and Senator Levin, the soon-to-be chairman. Each asked one question that seemed to suggest an issue playing on his mind. Chairman Warner noted that "each state has the authority and responsibility to establish its own criminal code to be applied to the National Guard of the respective states. A model UCMJ has been drafted at congressional direction, but implementation has been slow to perhaps change that." He asked whether there should be "a UCMJ for the National Guard" and whether CAAF should help make one happen. Lance Judge Stucky opined that "the states would benefit from greater uniformity in this area if their legislatures see fit to adopt it," but didn't see a role for CAAF in helping to persuade them. Lance Judge Ryan then concurred with her judicial brother-to-be.

Senator Levin asked an even more interesting question. (YES! Can you believe it? Even more interesting that a model National Guard UCMJ!) He asked about CAAF review of military commission cases. He noted that while Congress considered giving CAAF jurisdiction to review military commission convictions, the Military Commissions Act took a different approach (creating a new Court of Military Commission Review with follow-on review -- sometimes mandatory and sometimes discretionary -- by the D.C. Circuit and then SCOTUS review by cert). Senator Levin asked whether CAAF would "have the appropriate qualifications and expertise to handle such jurisdiction should we change course." Lance Judge Stucky answered that "if what is contemplated is simply taking direct review of final decisions of the commissions from the D.C. circuit and placing it in USCAAF, in my opinion USCAAF has the personnel and the organization to do that." But giving CAAF habeas jurisdiction over Combatant Status Review Tribunals (CSRTs) would "completely change the character of the court and would place in it administrative litigation of a kind it's never seen. And I'd have to -- that would be a different matter. Your question went to resources and ability. I'm not sure that if the whole CSRT thing were placed over there the court would be set up to handle that." Lance Judge Ryan added that CAAF's judges "all certainly appear to have the requisite integrity, intellectual capability, and other abilities and resources to handle those matters." Does Senator Levin's question foreshadow legislation during the new Congress?

I was quite surprised that Senator Graham didn't take part in the hearing. He would seem to have the greatest interest in the military justice system of all the Senators on SASC.

When you look up the phrase "class act" in the dictionary, there's a picture of Senator Warner. This CAAF confirmation hearing, one of his last wielding the chairman's gavel, was classy, cordial and collegial. The CAAF nomination and confirmation process has seemed remarkably smooth thus far. I hope it will be capped off with a quick floor vote this week.

--Dwight Sullivan

A daily Daily Journal?

Is it just my imagination or is the Daily Journal being updated far more regularly than in the past? If it's not just my imagination running away with me, to quote the Temptations, can we get whoever increased the updating tempo to take a crack at the CCAs' web sites? Or have the Air Force and Navy-Marine Corps Courts really done nothing since Halloween? (That would be quite a post-sugar high crash.)

NMCCA publishes previous order granting extraordinary relief

I spent so much timing trashing the CAAF confirmation book that it's too late to analyze something truly important: a new opinion on LEXIS's published CCA case database granting extraordinary relief. See United States v. Orzechowski, NMCCA No. 200300711, 2006 CCA LEXIS 307 (N-M. Ct. Crim. App. Nov. 15, 2006). I'll post an analysis tomorrow night unless one of the other CAAFlog contributors wants to write it up before then.

But here's the sticky wicket. NMCCA originally issued the order on 21 September. See 2006 CCA LEXIS 307, at *12. Then NMCCA RERELEASED it on 15 November -- apparently in published form, though for some inexplicable reason it isn't yet posted on NMCCA's own web site. Here's the question: does it count as a FY 06 or FY 07 published opinion? See "Moreno effect," 2 Dec, available at http://caaflog.blogspot.com/2006/12/kisala-cert-petition-by-any-other-name.html (counting CCA published opinions issued so far in FY 07). Your votes on this important scoring conundrum are invited.

--Dwight Sullivan

Rose cert petition docketed

The Supremes have docketed the Rose cert petition, which challenges the legality of an order to submit to the anthrax vaccine. Rose v. United States, No. 06-771. See generally http://caaflog.blogspot.com/2006/12/kisala-cert-petition-by-any-other-name.html.

The SG's response is due 3 January 2007.

We spend $69.99 for a bad book about CAAF nominees' confirmations so you don't have to

On this day when the Senate Armed Services Committee unanimously approved the two CAAF nominations, what should I find waiting for me when I arrived home from work? Why, my six-year-old daughter asking me to pretend to be a zombie and eat her brain. But, more apropos of this post, an Amazon box containing Craig Peter Cummings’ Is anyone listening? An analysis of public opinion of the Supreme Court, diversity in the Courts of Appeals, and confirmations to the military’s highest court (2005). See “Black Friday shopping alert,” 24 Nov, available at http://caaflog.blogspot.com/2006/11/black-friday-shopping-alert.html

The relevant part of the book, which is essentially Cummings’ republished doctoral dissertation from Columbia, runs from pages 79-126. I’ve now read that entire section and the most striking lesson I learned is that one can earn a Ph.D. from a prestigious Ivy League institution by producing remarkably slipshod work. The paper suffers from basic factual errors, erroneous citations, and improper usage. Plus, entire sections are derivative of other authors’ work (principally Jonathan Lurie's), poorly attributed, and overly reliant on secondary rather than primary sources. Here are just a few examples from a much larger pool:

Page 79: “Unlike all other federal courts which are governed under Article III of the Constitution, this court [CAAF] is governed under Article I.” Well, other than the United States Tax Court, which is located about a block away from CAAF’s courthouse. Oh, Bankruptcy Courts are also Article I courts. Hhhmm, I almost forgot the U.S. Court of Federal Claims. Oh, right, there’s also the U.S. Court of Appeals for Veterans Claims. See John Stewart et al., America (The Book) 85 (2004) (“U.S. Court of Veterans Affairs [sic] Looking for the world’s most depressing court experience? You’ve found it!”). Oh, and who can forget the U.S. district courts for the districts of Guam, the Virgin Islands, and the Northern Mariana Islands? I could go on, but let’s just say that Cummings drastically undercounted the number of Article I courts.

Page 91: “The first recommendation was to change the status of the court from an Article III court to an Article I court . . . .” Other way around.

Page 93: “The 146 articles of the UCMJ . . . .” While the UCMJ ends at Article 146, there are actually, by my count, 159 articles. Cummings apparently overlooked such provisions as Article 106a (espionage), Article 112a (drug offenses), and Article 123a (bad check offenses).

Page 101: “The USCAAF automatically reviews all death penalty cases [and] cases affecting flag-level officers (General or Admiral) . . . .” That latter provision was eliminated from Article 67 in 1983. See Military Justice Act of 1983, Pub. L. No. 98-209, §§ 5(e), 7(c), 97 Stat. 1399, 1402.

Page 101: “As in federal courts of appeals, the USCAAF chooses, upon petition for review from the accused service member, the remaining cases it will consider.” While the wording is a bit abstruse, it seems to be suggesting (erroneously, of course) that the geographic courts of appeals exercise discretionary rather than mandatory jurisdiction.

I know Cummings isn’t a lawyer, but if you are going to write a doctoral dissertation on a legal subject, you should do considerably better than this. It doesn't look like he ever had a lawyer read it before it was published.

The book does contain some original research concerning the pace of CMA/CAAF confirmations and compares those with rates for confirmation of Article III judges and Article II political appointees.

I’m a bit queasy about accepting Cummings’ numbers. At one point he writes, “[O]nly eighteen judges have served on this court since it was established in 1951.” 81-82. Later he writes, “All twenty judges nominated to the USCAAF were confirmed.” 113. By my count, the actual number of CMA/CAAF judges splits the difference: 19. Cummings seems to get to 20 on page 113 by counting Judge Darden twice. But I don’t believe Judge Darden was nominated more than once. Professor Lurie seems to support my recollection. Jonathan Lurie, Pursuing Military Justice 219 (1998) (“Several months before the Calley decision was announced, Judge Darden had written to Nixon expressing his desire to resign from USCMA. He had served for five years of a term – originally Kilday’s – to end in May 1976.”). So Cummings seems to have gotten to 20 through an erroneous double counting. He must have stopped at 18 earlier by overlooking someone. But how did he fail to notice that he used two different numbers for the same thing within 31 pages of each other? It’s true that I’ve never read a dissertation before (not even my brother’s, though he does have a Ph.D.), but I always assumed they were considerably better executed than this.

Just for the heck of it, let’s suspend disbelief and look at Cummings’ numbers and his conclusions.

“On average, the time from nomination to confirmation in the regional federal circuit courts takes 92.37 days, over twice as long as in the USCAAF where the average time is 44.35 days.” 114.

“This significant difference indicates a far less politicized process for nominees to the USCAAF. . . . [N]ominations to the USCAAF do not create political ‘turf wars’ as do the regional courts, where home-state senators are especially attentive to the ideological leaning of the judicial nominee.” Id.

“[C]onfirmations to the USCAAF take longer than do confirmations to other positions in [the] Defense Department.” 117.

The delay in confirmations has gotten longer over time. 119. [But it looks like Lance-Judges Stucky and Ryan will be confirmed in fewer than 25 days]

Nominations that would tilt CMA's/CAAF's balance away from the party that controls the Senate “do not seem to increase confirmation delay, which may suggest that senators are not attentive to the potential shift in ideology in the USCAAF. . . . This finding again points to a less politicized process for judges to the USCAAF.” 119

“Yet, confirmation to this court requires more time than do nominations to all other appointed positions within Defense, which suggests that these judges do receive a more careful examination.” 120.

“The negative interpretation of these findings is that the Senate simply doesn’t care a great deal about who gets selected to this court. . . . A more optimistic view of the findings is that the judges nominated to this court are of the highest caliber, and that the absence of partisan conflict reflects the apolitical nature of military justice. Indeed, the judges of this court are not setting policy on controversial social issues, such as affirmative action, abortion, or capital punishment.” 120-21. Apparently Cummings hasn’t looked at CAAF’s docket recently.

It’s also strange that in a political science dissertation that expressly discusses partisan politics, Cummings never mentions UCMJ article 142(b)(3)’s political balance requirement. Ockham's Razor would suggest that he doesn’t mention it because he never read the statutes that provide CAAF’s basic charter.

Finally, I actually laughed out loud when I came to this howler in Cummings’ conclusion: “Further research is necessary to estimate whether this ‘rubber-stamping’ is having negative effects on military justice and morale in the armed forces.” I can just see it – one Marine in a fighting hole in Anbar province turns to his buddy and says, “Boy is it upsetting that the Senate Armed Services Committee didn’t give Stucky and Ryan as thorough a grilling as Schumer gave Alito.” Come to think of it, maybe the brain-eating zombie was apropos of this post after all.

--Dwight Sullivan