Running a red light

At Chief Judge Gierke's retirement ceremony, former North Dakota Governor Allen Olson told an amusing anecdote about appearing before the Court of Military Appeals in the 1960s. He was arguing his first case as an Army Government Appellate Division lawyer and paid no attention to the lights on the podium. As he continued to speak for some time after the red light had apparently gone on, Judge Homer Ferguson cleared his throat and asked, "Counsel, are you colorblind?"

--Dwight Sullivan

You say Dubay, I say DuBay, Let's call the whole thing off

CAAF’s Daily Journal for 26 September includes an interlocutory order in United States v. Luke, No. 05-0157/NA. The CAAF order itself refers to a “Dubay” hearing that was held in the case. The order also reproduces the Findings of Fact by the military judge who conducted that hearing. The military judge refers to a “DuBay” hearing. Which is right?

For any military appellate practitioner, the case reported at 17 C.M.A. 147, 37 C.M.R. 411 is as familiar as World-Wide Volkswagon is to whatever kinds of lawyers actually care about long-arm jurisdiction. But looking at 37 C.M.R. 411 doesn’t tell us the proper way to capitalize the case name because the only time the opinion refers to the eponymous Army private, it renders his name in all capital letters.

But exactly one week after issuing that decision, the Court of Military Appeals cited it. In United States v. Keller, the court began its opinion with the observation, “This is another general court-martial involving the question before us in United States v DuBay, 17 USCMA 147, 37 CMR 411.” United States v. Keller, 17 C.M.A. 165, 37 C.M.R. 429 (1967) (per curiam). That seems conclusive to me: the proper capitalization is DuBay.

The DuBay decision actually involved 14 different Army Board of Review cases, so we might easily have been spared this question had The Judge Advocate General of the Army listed Private Robert L. Jones or Private Gary E. Farmer before Private Robert L. DuBay on the certification order.

Finally, it’s interesting that the military judge conducting the DuBay hearing in Luke used the proper capitalization while CAAF rendered the name of its own earlier decision incorrectly.

--Dwight Sullivan

The Golden CAAF Award

It's still a day early to give out the end-of-term awards (The Golden CAAFs?). But my nomination for Most Cert-Worthy Opinion in a Non-Capital Case has to be Kisala/Rose. Even though the potential petitioner only has a 3% chance of getting a grant, I put the chance of this administration wanting to do Senator Graham a favor at something less than that.

At the outset, I should disclose that I was LCpl Rose's attorney before the lower court, so I'm a partisan. But I found the opinion's heavy reliance on presumptions in favor of agency determinations (one of them even post hoc) to be pretty thin gruel. The most compelling argument that the vaccine is an IND is that there remains an active IND application on the vaccine for purposes of inhalational anthrax, a fact that renders the vaccine an IND by the FDA's own definition. Although the opinion mentions the pending IND application, it ignores the legal significance of it under the FDA's rules. Of course, just because an opinion is (in my view) inadequate or disappointing doesn't make it cert-worthy. But the opinion does conflict more or less with the DC Circuit, and I think the QP that could be crafted out of Kisala would make even the most sleepy clerk turn the page; something along the lines of "May the military perform illegal medical experiments on the sons and daughters of America?" Well it’s a start. We’ve only had five years to craft this one. While the narrow questions of whether Anthrax is an IND does not affect more than a dozen or so appellants at this point, the rationale of Kisala subjects over million active-duty service members to a significant diminution in their personal autonomy. I think a well crafted cert petition would covertly play to the residue of mistrust left by earlier disgraces such as the Tuskegee syphilis experiments and the like.

So I think you’re both wrong. The Golden CAAF goes to Kisala

--Marcus Fulton

Lane cert cont'

Jason Grover (the Super Muppet of Appellate Advocacy) and I have been having a running debate over whether the Supremes will review CAAF's Lane decision. Lane ruled that because of Article I's Incompatibility Clause, a sitting Member of Congress (Senator Lindsey Graham, R.-S.C.) may not serve as an Air Force Court of Criminal Appeals judge. I think the Supreme Court will review the case; Grover thinks not.

Here is an interesting passage from the Congressional Research Service's invaluable The Constitution of the United States of America. ("Interesting" in this context, of course, means "supports my position.")

One of the more recurrent problems which Congress has had with [the Incompatibility] clause is the compatibility of congressional office with service as an officer of some military organization -- militia, reserves, and the like. Members have been unseated for accepting appointment to military office during their terms of congressional office, but there are apparently no instances in which a Member-elect has been excluded for this
reason. Because of the difficulty of successfully claiming standing, the issue has never been a litigatible matter.

Congressional Research Service, The Constitution of the United States of America, Analysis and Interpretation 135 (1996) (footnotes omitted) (emphasis added).

So we have a really interesting constitutional issue dealing with the interpretation of a provision that is hard to reach. The Lane case presents about the best possible claim for standing. If the Solicitor General seeks cert in this case, bet on a grant. The Solicitor General's certiorari success rate has historically been about 70%, compared to about 5% for everyone else. Rebecca Mae Salokar, The Solicitor General: The Politics of Law 25 (1992) (between 1959 and 1989, the Solicitor General was successful in obtaining plenary review 69.78% of the time, whereas private litigants were successful only 4.9% of the time).

--Dwight Sullivan

End of Term Predictions

The last of the cases for the term should come out tonight. Anybody up for predictions? Here are mine:

Finch- Findings and sentence set aside based on variance.

Haney- No IAC for excessive enlargements by appellate defense counsel

Loving- New trial based on Wiggins v. Maryland, Court doesn't reach Ring issue.

I also predict that the Government does not appeal Long as the banner can be fixed by DoD so there is no need to go to the Supreme Court. As a disclaimer, I was one of the counsel on Long, although Charlie Gittens did the vast majority of the heavy lifting, including both oral arguments (CCA and CAAF).

Posted by Jason Grover

Loving FOIA case

There is an interesting new wrinkle in the Loving case. (The case now has so many interesting wrinkles that it is the shar-pei of military justice.)

Loving is a military death penalty case. In 1996, the Supreme Court used Loving as its vehicle to rule that it was constitutionally permissible for the President, rather than Congress, to establish the aggravating factors that narrow death eligibility. Loving v. United States, 517 U.S. 748 (1996). A habeas petition in the case is currently pending before CAAF.

Ever since the Supremes affirmed in 1996, the case has been eligible for presidential consideration under Article 71(a) of the UCMJ. Proceeding at a pace that makes Moreno look like a cheetah by comparison, the case was forwarded to the White House on January 23, 2006.

Under R.C.M. 1204(c)(2), once appellate review of a military death penalty case is complete, "the Judge Advocate General shall transmit the record of trial, the decision of the Court of Criminal Appeals, the decision of the Court of Appeals for the Armed Forces, and the recommendation of the Judge Advocate General to the Secretary concerned for the action of the President."

Loving's counsel have repeatedly sought a copy of the recommendation of The Judge Advocate General of the Army, along with the accompanying documents that the Department of Defense forwarded to the White House. Loving's counsel have been repeatedly rebuffed.

On 26 September, Loving filed a FOIA action in the U.S. District Court for the District of Colubmia seeking these documents. The case has been assigned to the highly regarded Judge Ellen Segal Huvelle. This will be one to watch. The case number is 1:06CV01655. Loving's counsel are Seth Watkins and Charles Schill from Steptoe & Johnson and Teresa Norris of Blume Weyble & Norris. (Teresa is Loving's former military appellate defense counsel and saintly long-serving pro bono counsel.)

Posted by Dwight Sullivan

Unpacking the Harvey dissent's waiver argument

Harvey concerned an unlawful command influence (UCI) issue arising from the presence of the original convening authority (the squadron’s executive officer) in the courtroom during the findings arguments. The majority held that the defense had adequately raised the issue of UCI and that the military judge erred by failing to inquire further. In her dissent, Judge Crawford argued:

[T]he defense counsel did not raise the issue of the convening authority's involvement in his post-trial submission. This constitutes waiver of this issue or at least is a good indication of the trial defense counsel's opinion of the merit of the issue. United States v. Gudmundson, 57 M.J. 493, 495 (C.A.A.F. 2002) (holding that an accused waives the issue of a convening authority's
disqualification if he knows of the issue and fails to object (citing United States v. Fisher, 45 M.J. 159, 163 (C.A.A.F. 1996)); United States v. Jeter, 35 M.J. 442, 447 (C.M.A. 1992) (holding that if an accused is aware of the convening authority's "personal interest" in a case and fails to object, the accused waives the issue); see United States v. Weasler, 43 M.J. 15, 19 (C.A.A.F. 1995) (concluding that an accused can initiate an affirmative and knowing waiver of unlawful command influence to secure the benefits of a pretrial agreement).

I was alarmed by this suggestion. The trial defense counsel in Harvey had raised the issue and moved unsuccessfully for a mistrial. Judge Crawford’s dissent suggests that despite properly preserving the issue at trial, the defense counsel might have waived it by failing to raise the issue in an 1105 petition or response to the staff judge advocate’s recommendation. I had never heard of such a waiver rule. Does such a rule -- which I would consider enormously troubling -- actually exist?

Let’s analyze each of the cases Judge Crawford cites in support of this proposition. In Gudmundson, the convening authority testified as a government witness concerning the legality of a urinalysis he had ordered. 57 M.J. at 494. On appeal, the defense argued for the first time that the convening authority was disqualified from taking the post-trial action due to his testimony at trial. CAAF held that “the issue was waived in this case. Appellant was aware of the convening authority's involvement, but he chose to not raise the disqualification issue at trial or in his post-trial submission to the convening authority.” Id. at 495. Gudmundson is clearly distinguishable from this case. In Gudmundson, the defense had NEVER challenged the convening authority until the case was on appeal. It wasn’t a situation where an issue properly preserved at trial was waived by failure to reassert it to the CA post-trial. Gudmundson thus does not support the Harvey dissent’s approach.

Nor does Fisher. There, the defense raised a UCI issue on appeal that had never been raised before. (According to an affidavit by the trial defense counsel, “Captain Major, Commanding Officer of the NAS Alameda at the time and the convening authority in this case, told me that any lawyer that would try to get the results of the urinalysis suppressed was unethical.” This is why I love practicing criminal law -- the facts are so often fascinating.) CAAF observed, “Inexplicably, . . . defense counsel said nothing about this matter even prior to Captain Major taking his final action on the case as the convening authority. Instead, . . . it came to light for the first time in his affidavit submitted to the lower appellate court.” 45 M.J. at 160. The Fisher majority expressly declined to rule that the defense had waived the issue of the CA’s disqualification to act post-trial. The court explained, “[T]he Government has argued that appellant waived her right to pursue this complaint in the appellate courts by not asserting it before the post-trial action was taken. We already have expressed our puzzlement as to why trial defense counsel did not make Captain Major's statement a matter of record at trial or contest Captain Major's qualifications to take the action via an RCM 1106 submission to the convening authority. We note, however, no evidence or other indication that appellant, herself, was aware of Captain Major's statement and made a knowing and intelligent waiver of her right to contest his qualifications to take the action on her court-martial. Accordingly, we decline to invoke waiver under these circumstances, where that probably would serve only to raise a substantial question as to the effectiveness of counsel's representation at that stage.” 45 M.J. at 160. Fisher thus also provides no support for the notion that an issue properly preserved at trial may be waived by failure to press it before the CA during the post-trial phase.

Weasler is similarly unavailing. There, the defense raised an unlawful command influence motion at trial and then entered into a written agreement with the government formally waiving the motion in exchange for sentence protection. 43 M.J. at 16. The notion that an accused can formally waive a UCI issue does not suggest that an accused sub silentio waives an otherwise properly preserved UCI issue by failing to raise it with the convening authority during the case’s post-trial phase.

So Judge Crawford’s novel suggestion that failure to raise a matter with the CA post-trial “constitutes waiver of this issue” appears to lack any actual legal support. Any attempt to use this language from Judge Crawford’s dissent to create a new waiver rule should be rejected.

Posted by Dwight Sullivan

Importance of Wording

Good job on this counsel's part in framing this issue:


No. 06-0503/NA. U.S. v. Sean A. WILSON. CCA 200102056. Review granted on the following issue:

WHETHER THE UNITED STATES NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED IN AFFIRMING A SENTENCE THAT INCLUDED A DISHONORABLE DISCHARGE WHEN THE CONVENING AUTHORITY'S ACTION DID NOT APPROVE ONE.

Briefs will be filed under Rule 25.

How could it not be error for CCA to approve what the CA did not. Do we need briefs on this? Anybody know who the counsel is?

Jason Grover

Harvey

Harvey shows CAAF once again fired up about UCI and providing relief for post-trial delay only when the appellant has a winning issue. But unlike in Moreno, the relief here is really shallow. With only 60 days of confinement, the relief CAAF fashioned only gives him back two months of LCpl pay. Not quite the windfall Moreno got. The case also continues the Richardson (61 M.J. 113) DuBay relief trend of last term, of skipping the DuBay hearing when there has been post-trial delay. It sort of raises the question of how important are DuBay hearings when they are so easily skipped. Judge Crawford does a nice job of pointing this out in the dissent: "Is there really a difference in the effect of the passage of time on the memories of court members for the purposes of a DuBay hearing versus the memories of witnesses for a new trial?"

Jason Grover

United States v. Lane

United States v. Lane will certainly rank as one of CAAF's most significant opinions from the 2006 term. The opinion relied on the Constitution's "Incompatability Clause," U.S. Const. art. I, § 6. cl. 2, to hold that a Member of Congress may not serve on a Court of Criminal Appeals in his capacity as a reserve officer. The majority opinion will no doubt receive thorough analysis. It may even generate a cert petition from the Solicitor General. But I was particularly struck by a portion of the dissent. Judge Crawford wrote: "If relief is to be granted, it should be granted prospectively and not to all cases on direct review. Griffith v. Kentucky, 479 U.S. 314, 321-22 (1987)." (dissent at 13). The dissent further supports its argument for prospective application with citations to three pre-Griffith Supreme Court decisions in civil cases.

Griffith, however, stands for precisely the opposite conclusion. Here is the holding in Griffith: "We therefore hold that a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a 'clear break' with the past." 479 U.S. at 328.

The dissent accuses the Lane majority of ignoring precedent. But it is the dissent that ignores clear precedent when arguing for prosepective application of the majority's holding. Curiously, the dissent cites the very precedent that it ignores.

Posted by Dwight Sullivan (The opinions expressed are my personal opinions. I do not purport to be speaking for any other entity or individual.)