Tuesday, October 31, 2006

Navy JAG certifies confrontation issue

The Judge Advocate General of the Navy has certified the following issue to CAAF:


The case is United States v. Cabrera-Frattini, No. 07-5001. The Navy-Marine Corps Court's unreported ruling is available at http://www.jag.navy.mil/NMCCA/CABRERA-FRATTINI%20J.R.%20200201665%20UNPUB.doc. The Navy-Marine Corps Court panel split 2-1, with Chief Judge Rolph writing a lengthy and thoughtful dissent.

--Dwight Sullivan

Monday, October 30, 2006

The Supreme Court October 2006 term's military justice docket

One advantage of blogging is that it creates pressure to write. The counter that the No-Man put at the bottom of the CAAFlog page creates even more pressure -- I insanely care more about the rate at which that counter rises than the trajectory of my 401(k) -- that's warped, but it's true. And I know that unless new content appears regularly on this blog, the number on the counter will grow about as quickly as the holly bush in my yard -- and that CAAFlog may, also like the holly bush in my yard, die an ignoble death from neglect.

The pressure to write produces a drive to research -- which led to a "Eureka" moment tonight. In poking around on the Supreme Court's web site, I found a way to disgorge what appears to be a complete term-by-term account of all the military justice cases filed at the Court. Go onto the "docket" page and type in "Court of Appeals for the Armed Force." The result is a list of cases in which the lower court's decision was rendered by CAAF -- going back to the October 2000 term. What an interesting list.

Let's focus on the current term. There are six military justice cases on the October 2006 term's docket: Quintanilla, Magyari, Lucas, Parker, McKeel, and Christian.

The Court has already denied cert in Quintanilla, Magyari, Lucas, and Parker. McKeel goes to cert conference this Friday. The SG's response in Christian is due 27 November.

Lucas and Christian are particularly interesting, as is one overall trend among the cases.

First Lucas. CAAF denied Lucas's petition for grant of review. Which means, of course, that the Supremes don't have statutory certiorari jurisdiction over the case. On 15 September 2005, the Navy-Marine Corps Court decided Boatswain's Mate First Class Eric V.F. Lucas's appeal. NMCCA granted partial relief, including knocking out the adjudged and approved BCD, eliminating the forfeitures, and reducing the confinement from a year to 8 months. (Lucas had already served the time about three years before NMCCA ruled.) On 26 May 2006, CAAF denied Lucas's petition. 63 M.J. 295. Lucas's civilian defense counsel -- John B. Wells (the same civilian defense counsel as in McKeel) -- nevertheless filed a cert petition on 23 August 2006. Instead of pointing out that UCMJ art. 67a does not allow for certiorari in such a case, the Solicitor General waived his right to respond and the Supremes denied the petition on 10 October.

Now Christian. After being convicted of various child sex offenses, Staff Sergeant David P. Christian, U.S. Army, received a sentence that included 16 years of confinement. On appeal, Christian challenged the effective date of life without eligibility for parole (LWOP), arguing that it was unavailable on the date of his offenses and that he entered into a pretrial agreement on the basis of the mistaken belief that he was protecting himself from the possibility of LWOP. CAAF rejected that argument, as well as a Grostefon ineffective assistance of counsel claim. 63 M.J. 205. Here's where things get really interesting. On 22 August, the Supremes docketed Christian's pro se cert petition with leave to file in forma pauperis. Why was it pro se? Did Christian want appellate defense counsel to file on his behalf? Was he refused? While a cert grant seems unlikely for an issue concerning LWOP's effective date for a sodomy with a child under 12 offense, such an issue would seem to clear the frivolousness hurdle. A previous post discussed Lovett's successful pro se petition for a writ of mandamus seeking continued representation by appellate defense counsel after Lovett lost his case at CAAF. Did Christian present a similar situation? The Supreme Court's docket entry for the Christian case raises many more interesting questions than it answers.

Here's the interesting trend. Ignore the cert petition in the case where the Supremes didn't have jurisdiction and the pro se cert petition. Four of the remaining four cert petitions are in Navy or Marine Corps cases. It is impossible to draw any conclusions on the basis of such a small sample size. But it raises the question of whether there is a different attitude toward Supreme Court practice at the Navy Yard than at Bolling or Balston.

--Dwight Sullivan

Friday, October 27, 2006

CAAF issues writ requiring continued appellate representation

The 24 October daily journal has a most interesting summary disposition of a petition for extraordinary relief.

Air Force Staff Sergeant Joshua P. Lovett is doing 14 years for various offenses, including the rape of a child. After extensive appellate review, the Court of Appeals for the Armed Forces affirmed his findings and sentence on 6 June 2006. United States v. Lovett, 63 M.J. 211, 212 (C.A.A.F. 2006). On 14 July, Lovett filed a pro se petition for reconsideration. On 14 July 14, Lovett's appellate defense counsel informed him “that neither I nor any other attorney from the Appellate Defense Division will represent you in any further action you decide to take in your case.” On 14 August, CAAF denied Lovett's pro se reconsideration petition.

In granting Lovett's petition for writ of mandamus, CAAF set out that procedural history and then explained:

The Uniform Code of Military Justice provides: “Appellate defense counsel shall represent the accused before the Court of Criminal Appeals, the Court of Appeals for the Armed Forces, or the Supreme Court . . . when requested by the accused . . . .” Article 70(c)(1), UCMJ, 10 U.S.C. § 870(c)(1) (2000). Petitioner’s case is not final as a matter of law. See Article 71(c), UCMJ, 10 U.S.C. § 871(c) (2000). The immediate question before us is not whether counsel must file any particular matter in the course of representing a servicemember, but whether counsel may discontinue such representation before the case is final as a matter of law. Nothing in the record of the present case established a basis for counsel to sever the lawyer-client relationship. Accordingly, it is ordered that the Judge Advocate General of the Air Force shall provide appellate defense counsel to represent Petitioner for the purposes of review of his court-martial under Article 67a, UCMJ, 10 U.S.C. § 867a (2000).

From the Daily Journal, it isn't clear exactly for what purpose Lovett is seeking an appellate defense counsel's assistance -- though it one does the math, it is apparent that his time for filing a cert petition at the Supreme Court hasn't yet run. But CAAF is insisting, no doubt correctly, that Lovett continue to be represented until his case is final -- if for no other purpose, I suppose, than to advise him that he has no non-frivolous issue to raise in a cert petition before the Supremes.

--Dwight Sullivan

Thursday, October 26, 2006

The debate over Tate's fate

As the Columbus Clipper notes in his comment to that last post, a large part of the Tate oral argument was devoted to the issue of remedy. (Apparently Marcus and I both whiled away the World Series rain delay -- before it became a rain out -- last night by listening to the Tate argument.) [CORRECTION: my apologies to the Super Muppet of Appellate Advocacy -- it was he, rather than the Columbus Clipper, who made the sage observations with which this post deals.]

It's always risky to predict a case's outcome on the basis of oral argument questions, but the judges did seem keenly interested in the correct rememy if the court were to hold that a pretrial agreement provision limiting the right to seek clemency and parole was invalid. At one point during the appellate government counsel's argument, Judge Erdmann told him, "I think I understand your argument. Let's move to remedy."

As the Columbus Clipper [should be "Super Muppet"] also notes, the appellate government counsel responded by requesting that the court fix any error by striking the clemency/parole limiting provision rather than voiding the entire PTA, which would have made Tate susceptible to life without eligibility for parole during any retrial. During the discussion that followed Judge Erdmann's invitation, Judge Effron asked whether the government's preferred remedy was for this case only or all cases that present a similar issue. [He wisely answered that this was a case-specific preference.] Again, we don't want to infer too much from questions at oral argument, but . . . .

--Dwight Sullivan

Tuesday, October 24, 2006

Cutting a deal to deal accused out of clemency & parole

CAAF will be hearing argument in a very important case tomorrow. Here's the issue presented in United States v. Tate:


The opinion below was unreported, but basically followed the Navy-Marine Corps Court's decision in United States v. Thomas, 60 M.J. 521 (N-M. Ct. Crim. App. 2004). [NMCCA's unreported decision in Tate is available here: http://www.jag.navy.mil/NMCCA/200201202.UNPUB.doc] Thomas was an interesting case. He had originally been sentenced to death but CAAF set aside his sentence due to an instructional error. 46 M.J. 311 (C.A.A.F. 1997). Because his offense preceded 18 November 1997, Thomas could not be sentenced to life without eligibility for parole (LWOP). To escape a second capital referral, he cut a deal for de facto LWOP by agreeing not to seek or accept clemency or parole. (I guess if his jailers at the USDB were to fling his cell door open and tell him to go home, he would remain seated on his bunk, making hash marks every morning as he woke up and glanced at the open door.) My initial inclination is that the system should not paternalistically take a bargaining chip away from the accused, but I'm not confident in that conclusion. I look forward to listening to the audio of LT Mizer's argument on behalf of Tate.

The second case being argued on Wednesday (and the last argument of the month) is United States v. Foster. Here's the issue:


Here's a serious question for those currently practicing military appellate law: did the defense counsel write this issue or did CAAF reformulate a more persuasive issue into this form? If the former, then every appellate defense counsel should buy one of Garner's books that includes a discussion of issue framing and study and implement his method.

Foster was an unpublished opinion below. Worse, if you go to NMCCA's web site and click on the link for the Foster opinion, you will get the court's opinion in Untied States v. Brumfield instead. If you click on the Brumfield link, you will also get the Brumfield opinion. For those with LEXIS access, the actual Foster opinion is available there (as is Brumfield). Finally, there is still no opinion on the NMCCA web site released since 11 September. That seems like quite a lull without producing anything of note.

--Dwight Sullivan

Monday, October 23, 2006

Challenging arguments

The CAAFeteria will be serving some interesting dishes on Tuesday. The entree is United States v. Terry, which presents one of the most interesting factual scenarios in a members challenge case ever. (If you have forgotten, see the 3 October table setting contest blog post.) Then comes a half-portion second helping of members challenges in United States v. Briggs, docketed for 15 minutes per side. For a tasty dessert, there is United States v. Cossio, a speedy trial case in which the military judge kicked the case only to be overturned by the Air Force Court. CAAF will now settle the matter.

It doesn't sound like there's a single serving of meatloaf on the menu. Bon appetite!

(By the way, here's something weird. The spellchecker on blogger.com, on which these posts are composed, doesn't recognize the word "blog." Then again, the spellchecker also doesn't recognize the word "spellchecker." I'm not making this up.)

--Dwight Sullivan

Sunday, October 22, 2006

New UCMJ amendment

On the same day that President Bush signed the Military Commissions Act of 2006 into law, with considerably less fanfare he also signed the John Warner National Defense Authorization Act for Fiscal Year 2007, 109 P.L. 364; 120 Stat. 2083 (2006).

As usual, this year's authorization act tweaks the military justice system. Here are this year's provisions:

Subtitle E--Military Justice Matters


Not later than March 1, 2007, the Secretaries of the military departments shall prescribe regulations, or amend current regulations, in order to provide that members of the Armed Forces who are ordered to duty at locations overseas in an inactive duty for training status are subject to the jurisdiction of the Uniform Code of Military Justice, pursuant to the provisions of section 802(a)(3) of title 10, United States Code (article 2(a)(3) of the Uniform Code of Military Justice), continuously from the commencement of execution of such orders to the conclusion of such orders.


Paragraph (10) of section 802(a) of title 10, United States Code (article 2(a) of the Uniform Code of Military Justice), is amended by striking "war" and inserting "declared war or a contingency operation".

The second section could be enormously significant. This is the old UCMJ provision: "(a) The following persons are subject to this chapter . . . (10) In time of war, persons serving with or accompanying an armed force in the field." That will now read, "(a) The following persons are subject to this chapter: (10) In time of declared war or a contigency operation, persons serving with or accompanying an armed force in the field."

This change allows court-martial jurisdiction to reach a great number of civilians who were not previously susceptible to court-martial jurisdiction. In a Vietnam-era case, the Court of Military Appeals set aside the conviction of a civilian contractor in Saigon because it construed the old Art. 2(a)(10) to apply only in cases of declared war. United States v. Averette, 19 C.M.A. 363, 41 C.M.R. 363 (1970). Throughout U.S. history, we have fought only five declared wars (World War II, World War I, the Spanish-American War, the Mexican-American War, and the War of 1812). We have been engaged in a great many more contingency operations.

It will be interesting to see whether -- and, if so, how -- the military takes advantage of this major expansion of court-martial jurisdiction.

--Dwight Sullivan

Friday, October 20, 2006

Seeking an even McKeel

In a recent post, I was called a geek by a self-confessed dork, a.k.a., the Columbus Clipper. At the risk of being elevated to "dweeb" status, I think the on-going machinations over the McKeel cert petition are fascinating. Here is a link to a letter that the Solicitor General's office sent to Gene Fidell in response to his argument that once CAAF grants review of a case, all issues in that case -- granted or not -- are fair game at the Supremes:


I am enjoying this rare high-level legal discussion of military justice appeals. I mean, if all of the areas of law got together and had a party at MCCXXIII, the bouncer wouldn't let military justice past the velvet rope. And yet here's the S.G.'s office paying attention to little ol' us. I do declare.

The Supreme Court's front doors weigh 13 tons. (I'm not kidding -- here's a web page devoted to the Supreme Court's front doors: http://www.supremecourtus.gov/about/bronzedoors.pdf. What next, their own blog?) Trying to pry open 13-ton bronze doors is a fitting metaphor for trying to get a cert grant. In the real world, it matters little whether a military appellant can take his case to the Supreme Court because the result will be the same as for an appellant who can't. Perhaps the better reform would be to open CAAF's comparatively inviting doorway a little further. How about a system in which CAAF will review any assignment of error actually raised? (I wouldn't make CAAF review merits submission cases on the merits, though I would still allow it to specify issues if it chose to do so.) Of course, this would have the concomitant effect of allowing an unsuccessful appellant to file a cert petition in all of these cases. But the more important effect would be a civilian court's resolution of the merits of any issue that an appellate defense counsel thinks is important enough to raise.

--Dwight Sullivan

Moreno No More?

A glance at the CAAF Daily Journal shows a recent spat of Moreno grants and findings of no prejudicial post-trial delay beyond a reasonable doubt. Was Judge Crawford's final act to convince the other members of the Court that there really is no such thing as prejudicial post-trial delay? Aside from the sheer volume of 4-1 decisions, this could be her legacy.

Posted by No Man

Thursday, October 19, 2006

McKeel distributed for Conference

McKeel has been distributed for the Supremes' 3 November conference.

Wednesday, October 18, 2006

Two more capital courts-martial

The Associated Press is reporting that SGT Paul E. Cortez and PFC Jesse V. Spielman of the 101st Airborne Division will be tried capitally for the alleged rape and murder of an Iraqi girl and the murder of her family in Mahmoudiya, Iraq.

Several capital courts-martial will likely occur in 2007. Since the current military death penalty system went into effect in 1984, the most capital courts-martial in any one calendar year occurred in 1987, when nine servicemembers were tried in death-eligible courts-martial. Two of those cases -- Curtis and Murphy -- actually resulted in death sentences. Both of those death sentences were set aside on appeal, though Murphy still faces the possibility of being retried.

--Dwight Sullivan

Tuesday, October 17, 2006

Audio files for CAAF audiophiles

The links for audio files of oral arguments have returned to the CAAF web site, one link for Monday's hearings and one for Tuesday's. I have successfully downloaded Monday's arguments. As I type this, I am listening to the 2 hour and 19 minute file with Monday's oral arguments. Hi Judge Baker!

--Dwight Sullivan

Maintain radio silence

Last night I wrote about a new, though inoperable, feature on CAAF's web site: a link for an audio file of CAAF's oral arguments. Both the link and the announcement that audio files will be posted on the web site the day after the argument have disappeared from the "Scheduled Hearings" page this morning. What happened?

--Dwight Sullivan

Monday, October 16, 2006

Hearing the hearings

There is an exciting new feature on CAAF's web site, though at the moment it appears to be inoperable. Apparently following in the Supreme Court's footsteps, the CAAF web site's "Scheduled Hearings" page says, "Audio recordings of hearings normally will be available on this page the day following the hearing." An audio link appears after the October 16 hearing link, though clicking it results in a "page cannot be found" screen. The announcement on the "Scheduled Hearings" page suggests that the link should be operable tomorrow.

The most exciting of the three cases CAAF heard today appears to be United States v. Lee, where the issue presented (rendered in what I am coming to conclude is typical Air Force appellate drab language) is: WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE DENIED THE DEFENSE REQUEST FOR AN EXPERT CONSULTANT IN THE FIELD OF FORENSIC COMPUTER EXAMINATION.

Tuesday's arguments include another interesting expert assistance issue in United States v. McAllister: WHETHER APPELLANT'S RIGHT TO PRESENT HIS DEFENSE WAS VIOLATED WHEN HE WAS PREVENTED FROM EMPLOYING AND UTILIZING A NECESSARY DNA EXPERT AT HIS TRIAL AND WHETHER THAT ERROR WAS HARMLESS. McAllister's counsel is my former Navy-Marine Corps Appellate Defense colleague David "Sid" Sheldon.


Perhaps the questioning will give some hint as to why this particular area of the law seems to have intrigued the judges so.

Finally, CAAFlog invites anyone who attended or presented oral argument this week to note any apparent innovations as Chief Judge Effron wields the gavel.

--Dwight Sullivan

Sunday, October 15, 2006

Military law changes slowly, and sometimes not at all

Fifteen years ago, the Supreme Court invalidated Nevada's rule regulating attorneys' extrajudicial statements. Gentile v. State Bar of Nev., 501 U.S. 1030 (1991). Justice Kennedy's opinion noted that the Nevada rule was "almost identical to ABA Model Rule of Professional Conduct 3.6." Id. at 1033 (Kennedy, J., majority opinion in part/dissenting in part).

Not surprisingly, the ABA changed its Model Rule 3.6 in 1994. But the military hasn't followed suit.

As LTC Denise Lind noted in an insightful law review article in 2000, "None of the armed services has implemented new Model Rule 3.6. Each service trial publicity rule continues to allow the same 'safe harbor provision' found to be void for vagueness in Gentile. Thus, all of the armed services' ethics rules governing trial publicity are void for vagueness and may not be enforceable." LTC Denise R. Lind, Media Rights of Access to Proceedings, Information, and Participants in Military Criminal Cases, 163 Mil. L. Rev. 1, 77 (2000) (footnotes omitted).

Despite a Military Law Review article calling this problem to their attention six years ago, neither the Army nor the Navy has changed its constitutionally defective Rule 3.6. (I couldn't find the Air Force rules of professional conduct online. They might be on the web somewhere, but if so, they seem well hidden. Why would a service want to make its rules of professional conduct hard to find?) The Coast Guard, however, seems to have cured the problem. COMDTINST M5810.1D Art. 6.C.1 (August 17, 2000) incorporates the ABA Model Rules of Professional Conduct "[a]s far as practicable and when not inconsistent with law." So the Coast Guard would follow the 1994 revision of Model Rule 3.6 rather than its unconstitutionally vague predecessor.

All of this raises the question: what does it take to update a military law regulation to comply with a Supreme Court opinion? Should the services adopt joint rules of professional conduct? Whatever the merits of separate military legal organizations and three different JAG schools, I can't think of any service-specific necessity for the Army, Air Force, Naval, and Coast Guard professional responsibility rules to differ. The process of adopting joint p.r. rules would no doubt lead to the problem with Rule 3.6 -- and any similar defects lurking in the weeds --being fixed. It may also lead to more regular updates of the p.r. rules, perhaps as part of the Joint Service Committee working group's annual review of the military justice system.

--Dwight Sullivan

Friday, October 13, 2006

The thrill of victory and the agony of spinning wildly off the end of a ski jump ramp and crashing into a restraining fence

The two most exciting weeks on this year's military justice appellate calendar occurred between 20 September and 2 October. Think back to your youth – scratch that; think back to my youth – and Jim McKay intoning on the Wide World of Sports about the thrill of victory and the agony of defeat. (All these years later, I have no recollection of what aired during the “thrill of victory” half of that dichotomy, but I well remember Slovenian ski jumper Vinko Bogataj’s horrific crash providing the visual for “the agony of defeat.”)

Eleven of CAAF's 2006 Term’s seventy-six opinions came out in September. And there were some thrilling victories and some agonizing defeats. Kisala rejected a challenge to the legality of an order to take the anthrax vaccine. Loving ordered a DuBay hearing to explore an ineffective assistance of counsel claim in a death penalty case that the Supreme Court had affirmed a decade earlier. Lane boldly held that a sitting Senator may not serve as a Court of Criminal Appeals judge.

Those two weeks concluded with the orders list from the Supremes’ long conference – with cert petitions in Quintanilla and Magyari playing the part of Vinko Bogataj. After the CAAF end o' term thrill ride, October seems like the tamest of merry-go-rounds. No CAAF opinions. No Supreme Court opinions. Just the semi-weekly updates of the “Daily” Journal to keep us going.

Things got so bad this week that I actually started reading CCA opinions for fun. And I came across two interesting opinions. The most recent opinions on the NMCCA web site are, inexplicably, both more than a month old. (Presumably the court has done something of note in more than a month.) Both are unpublished, but both are worth a read. I’ll discuss one in this post and the other later in the weekend.

United States v. O’Toole, No. 200600169 (N-M. Ct. Crim. App. Sept. 11, 2006), delivers a judicial spanking the likes of which haven’t been seen since Moreno. (Granted, Moreno wasn’t very long ago, but you get the point.) The hapless Petty Officer O’Toole had a deal to disapprove any adjudged BCD. That provision became relevant when the military judge imposed one. The legal officer then advised the CA that no BCD had been adjudged and that the pretrial agreement didn’t limit the CA’s ability to approve one. The legal officer then advised the CA to approve the sentence as adjudged. Despite receiving a copy of the highly faulty legal officer’s advice, trial defense counsel did nothing. Somehow the CA’s action managed to correctly state the adjudged sentence, but was ambiguous as to whether the CA was approving or disapproving the BCD. (The action said that “the sentence is approved and will be executed, except for the part of the sentence extending to the bad-conduct discharge.” Did that exception apply to the approval of the BCD or did it apply to its execution. Who knows?) The CA’s action then ordered the record forwarded to NMCCA for Article 66 review – which would be done only if the BCD had been approved.

NMCCA was not happy. In an opinion written by the now-retired Judge Diaz (a Marine Corps Reservist judge who is a distinguished trial jurist in North Carolina in civilian life), the court chastised the handling of the case from start to finish. Judge Diaz began his opinion by noting, “This case comes to us without assignments of error. It should not be before us at all.” The opinion then recounts the case’s confusing and careless journey to the Washington Navy Yard and roundly chastises all concerned. The decision is good reading. It reminds us not only that the individuals responsible for handling cases at the post-trial and appellate stages must be diligent, but also that we will miss Judge Diaz.


--Dwight Sullivan

Thursday, October 12, 2006

United States v. Lane in fast lane?

In an update to my on-going debate with the good Col, I would like to point out that there was no petition for reconsideration filed, at least by 4 Oct 06, and because the case was decided on 20 Sep 06, I think we are out of time. Petitions for reconsideration often seemed to be used to buy the government more time to consider a cert petition. So either the Air Force has already decided to go to the SG and doesn't need more time and Lane is on the fast-track, or maybe the government is less upset about this decision than the Col might believe.

Or, of course, they just blew the date. Happens to the best of us.

Tuesday, October 10, 2006

Cutting off the gerrymander's tail: the SG argued for circumscribing the Supremes' cert jurisdiction over cases reviewed by CAAF

McKeel v. United States is a pending cert petition, No. 06-58, seeking review of a case affirmed by CAAF. 63 M.J. 81 (C.A.A.F. 2006). The cert petition raises two issues, one of which (an immunity issue) was addressed by CAAF and one of which (a Sixth Amendment venue issue) wasn't. The S.G. initially waived the United States' response. On 3 Aug, the Supremes asked the S.G. to respond, which he did on 5 Oct.

The S.G. argued, in part, that the Supremes have no jurisdiction over the issue that CAAF didn't review. Here's the S.G.'s argument:

This Court's authority to review decisions of the CAAF is derived from 28 U.S.C. 1259. Under Section 1259(3), the Court may review cases, such as this one, in which the CAAF has granted a petition for review under 10 U.S.C. 867(a)(3). That authority to review CAAF decisions, however, is expressly qualified by 10 U.S.C. 867a(a), which provides that this Court "may not review by a writ of certiorari under [28 U.S.C. 1259] any action of the Court of Appeals for the Armed Forces in refus ing to grant a petition for review."

That limitation on review is applicable here. While the CAAF granted a petition for review on petitioner's claim that he was entitled to transactional immunity, it refused to grant a petition to review his Sixth Amendment claim. Under the terms of Section 867a(a), the Court may not review the CAAF's action in refusing to grant review of that claim.

(available at http://www.usdoj.gov/osg/briefs/2006/0responses/2006-0058.resp.html)

I have previously posted about the Military Justice Act of 1983's gerrymandering of the Supremes' cert jurisdiction over CMA/CAAF cases to favor the government. Now, like a Texas politician trying to track down a planeload of renegade legislators over Oklahoma, the S.G. seeks to augment his advantage.

The Military Justice Act's plain language appears to allow the Supremes to grant review of an issue that CAAF did not, as long as CAAF opened the door to Supreme Court review by granting the petition. To the extent that there is any ambiguity, the Act's legislative history seems to confirm this conclusion. To demonstrate this point, I hope that Gene Fidell will allow me to offer an extended quotation from his invaluable "Review of Decisions of the United States Court of Appeals for the Armed Forces by the Supreme Court of the United States":

The legislative history of the 1983 act makes it clear that the Supreme Court has jurisdiction over any case in which the lower court granted review, even if the grant did not include the particular issue on which the certiorari petition is predicated. Section 1259 gives the Court jurisdiction over "decisions" of the Court of Appeals [for the Armed Forces] in, among other things, "cases" reviewed under article 67(a)(3). This is in contrast with an earlier administration proposal that would have confined the certiorari jurisdiction to "issues" on which the lower court had granted review. The House of Representatives eschewed the "issues" approach and passed a bill employing the broader "cases" phraeseology in 1980. That language was carried over in the measure that became the 1983 act.

Eugene R. Fidell, Review of Decisions of the United States Court of Appeals for the Armed Forces by the Supreme Court of the United States, in Evolving Military Justice 149, 150-51 (Eugene R. Fidell & Dwight H. Sullivan eds., 2002) (endnotes omitted).

Gene concludes his analysis by noting: "Congress's use of the broader term in the legislation ultimately enacted indicates its intention to permit review by writ of certiorari over any issue raised in the Court of Appeals, provided the court granted review on some issue, and the measure has been universally so understood." Id. at 151. Until now, Gene, until now.

--Dwight Sullivan

Cunnigham v. California, a barometer for application of Apprendi to the military justice system?

Chances are that the application of Apprendi to the military justice system will not see the inside 450 E. Street N.W. any time soon. However, tomorrow's oral arguments and the Supreme Court's decision in Cunningham v. California may give hope to those that believe Apprendi raises doubts regarding the constitutionality of the courts-martial system--from what I can tell a very small group, indeed. The upshot of Cunningham is the question of whether aggravating factors in a sentencing scheme are limitations on sentencing discretion or elements of the offense entitled to traditional constitutional protections. California's determinate sentencing system resembles, in some respects, the military justice system's capital punishment rules (and, for that matter, the MCM's maximum punishment table) in that California law provides the judge with facts that authorize punishment above the recommended sentencing range and requires the judge to weigh the evidence to determine if those facts are present. More information can be found at SCOTUS Blog and the Supreme Court filings are available at the First District Appellate Project.

See http://www.scotusblog.com and http://www.fdap.org/blakely4.html#cunningham.

Posted by No Man

Monday, October 09, 2006

A zebra theory of jurisprudence

Somewhere in the sports pantheon, well below major league baseball and NCAA basketball (and, I’m sure the No-Man will insist, NCAA lacrosse), is a business trading as the National Football League. The NFL has an instant replay system that allows an aggrieved coach to challenge some, but not all, calls by the referee. The rules governing instant replay review are horribly arcane; they make the EPA’s General Conformity Rule seem simple by comparison.

Before this season, a referee’s call that a player was NOT down by contact was reviewable but a referee’s call that a player WAS down by contact was not. That meant that if the ball came out of a player’s hands as he was being tackled, the aggrieved coach could challenge a call that the player had fumbled the ball before he was down. But if the referee ruled that the player was down before the fumble, the team that recovered the fumble -- and would have had possession of the pigskin but for that call -- couldn’t challenge it. (While not important for purposes of my overwrought metaphor, calls that the player was down by contact are now reviewable for purposes of determining whether there was a fumble.)

I never saw any official policy to support this theory, but NFL commentators often said that refs were encouraged to call plays in a way that would make them reviewable. So if a ref was uncertain whether a ball was fumbled before the player’s knee hit the ground, he should resist the urge to blow the whistle so that an instant replay review would be available.

Now, finally, I get to the subject of this post, which is, as dedicated CAAFlog readers (both of you!) will have guessed, the Lane dissent. (The Lane dissent is to CAAFlog what Britney Spears is to the National Enquirer: the source of endless fascination in a generally disapproving sort of way.)

In Lane, 64 M.J. 1 (C.A.A.F. 2006), Judge Crawford dissented from the majority’s ruling that Senator Graham’s service as an Air Force Court of Criminal Appeals judge violated the Constitution’s Incompatibility Clause and that, as a result, the Air Force Court’s decision in Lane’s case was void.

Judge Crawford’s dissent advanced three overarching arguments: (1) Senator Graham’s simultaneous service in Congress and as an Air Force Court of Criminal Appeals judge did not violate the Incompatibility Clause; (2) even if it did, any violation of the Clause was harmless; and (3) any rule that simultaneous service as a Member of Congress and a CCA judge violates the Incompatibility Clause should be applied prospectively only.

I have previously written about the misuse of precedent to support that third point. Now let’s look at the second. Hypothesize that the majority had ruled that Senator Graham’s service on the Air Force Court had violated the Incompatibility Clause but that the error was harmless. That would have been the worst of all possible results because it would have declared a constitutional error but insulated that declaration from further Supreme Court review. Presumably Judge Crawford would welcome a Supreme Court ruling overturning the majority’s holding of an Incompatibility Clause violation. Yet her alternative holding would have prevented it. Such insulation would seem particularly unwarranted from Judge Crawford’s perspective when the only harm that results from the majority’s holding is that the Air Force Court has to ink up its Good Housekeeping Seal of Approval and stamp the case a second time – hardly an onerous burden on the system.

As an appellate defense counsel, I was always infuriated when a court would rule against me on the merits and then say something to the effect of, “Even if we were to hold that the military judge’s ruling had been erroneous, we would hold that the error was harmless.” It seemed that the court was trying to insulate its legal ruling from further review. The Lane majority, on the other hand, had the courage of its convictions. And the dissent forgot the lesson from the NFL: if you are on the losing end of a call, it’s better to have instant replay review.

--Dwight Sullivan

Sunday, October 08, 2006

Table setting contest winner

Since there was only one entry in the table setting contest, picking a winner was rather easy. The Columbus Clipper, Marcus Fulton, emerged from a pack of one to cross the finish line in first place. (If anyone else attempted to enter, your Diebold e-book malfunctioned and your entry was not recorded.) Marcus's prize is his very own copy of Lichfield: The U. S. Army on Trial by Jack Gieck (1997). (Columbus Clipper -- if you already have it or have already read it, I can substitute a different prize.)

(Lichfield, by the way, is a book about the trial of abusive U.S. guards in a U.S. Army stockade in Britain during World War II. The book offers a fascinating glimpse into the defense's litigation strategy, which was basically to argue that the accused guards were scapegoats for policies that originated well above their pay grades. Wasn't it Harry Truman who said that the only thing new in the world is the history we don't know?)

Friday, October 06, 2006

Shaking off tradition

For many years now, at the conclusion of each oral argument at CAAF, the judges have filed off the bench to shake hands with the counsel who just argued before them. The Chief Judge would typically explain that CAAF had borrowed this tradition from the Fourth Circuit. As an advocate before both CAAF and the Fourth Circuit, I had rather enjoyed this tradition. (That is about the only aspect of being an advocate before the Fourth Circuit that I found enjoyable.)

But every tradition -- like grog and flogging on U.S. naval vessels or the Red Sox blowing every available opportunity to win a World Series -- must come to an end. I have received a report that at this year's CAAF orientation for new appellate counsel, court personnel indicated that the judges would no longer come down from the bench to greet counsel after oral arguments.

--Dwight Sullivan

Tuesday, October 03, 2006

A table setting contest

For a court with largely discretionary jurisdiction -- such as the Supreme Court or CAAF -- one of the most important judicial functions is deciding which cases to review.

The change in CAAF's personnel will likely affect the cases the court chooses to grant. If the court continues to require two votes to grant review of a case, obtaining a grant may be more difficult as CAAF functions as a three-member court for the foreseeable future. This will place a premium on effective petitions for grant of review.

In this post, I originally intended to remark that it's curious that 3 of the 13 cases being orally argued at CAAF in October deal with members challenges. But then I looked at the issues themselves and saw that they were stunningly uninformative. Consider this issue in United States v. Terry, which will be orally argued on 24 October: "WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION IN DENYING TWO CHALLENGES FOR CAUSE." That issue does nothing to engage the reader. Now consider the facts in Terry. The Air Force Court's opinion reveals that Terry is a rape case. One of the members had two former girlfriends who were rape victims. One of those women became pregnant as the result of being raped and named the baby after the member. The other challenged member's wife had been sexually assaulted by her stepfather. See United States v. Terry, 2005 CCA LEXIS 420 (A.F. Ct. Crim. App. Dec. 6, 2005). Those facts are fascinating. From these facts, Garner would create an issue that could win an O. Henry Prize.

The issue in Briggs is similarly uninformative. While the facts in Briggs aren't nearly as compelling as those in Terry (but let's be fair -- few cases have facts as compelling as those in Terry), they still seem remarkably helpful to the appellant's cause. The challenged member in Briggs was married to Briggs's flight commander -- who had counseled Briggs regarding an unrelated failure to pay a debt. See United States v. Briggs, 2004 CCA LEXIS 197 (A.F. Ct. Crim. App. Aug. 26, 2004). Why would the statement of the issue hide those facts from the reader? Did Briggs's advocate bury those facts or has the CAAF clerk's office launched some weird project to rewrite granted issues to make them as boring and unhelpful as possible?

The issue in Clay is better, but only marginally so: "WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE DENIED THE DEFENSE CHALLENGE FOR CAUSE AGAINST COLONEL [J], A MEMBER DETAILED TO THE COURT-MARTIAL PANEL, WHO DEMONSTRATED A DRACONIAN AND INELASTIC ATTITUDE TOWARD SENTENCING." At least I know the general reason for the challenge for cause, though rather than offering us the bald CONCLUSION that the member demonstrated a draconian and inelastic attitude toward sentencing, the issue should have included FACTS suggesting such a draconian attitude. Alas, I can't even find the Clay opinion on line, so I can't discover what those facts might be.

I've been curious about how many people are actually reading CAAFlog. Let's find out. I announce the following contest: who can write the best issue based on the facts in Terry? Post your entries as comments to this post. I will award the winner (determined solely on the basis of any subjective arbitrary criteria I choose to employ) with an appropriate prize. Entries are due by COB, Friday, 6 Oct.

--Dwight Sullivan

Monday, October 02, 2006

Arraignment in capital court-martial scheduled for 3 November

AP is reporting that an arraignment in Staff Sergeant Albert B. Martinez's capital court-martial has been scheduled for 3 November at Fort Bragg. He is charged with two premeditated murders (his company commander and company operations officer) in an alleged fragging incident at a U.S. base near Tikrit. The 18th Airborne Corps' commander reportedly referred the case capitally on 27 September.

--Dwight Sullivan

Loving decision keeps Apprendi/Ring issue alive

CAAF's decision in Loving denying relief on the Ring v. Arizona issues based on Teague v. Lane keeps alive an issue that has not been fully litigated in the military, does the Apprendi doctrine apply to the military? Every other American criminal justice system has squarely resolved the issues of applicability of Apprendi and Ring to their system. However, the military lags behind on the issue. Two unpublished Court of Criminal Appeals cases tangentially, and poorly, discussed the issue (United States v. Williams (N-M Ct Crim App Sep. 14, 2005) and United States v. Lewis (Army Ct Crim App Apr. 29, 2004)). However, no court has looked at the Supreme Court's opinion in Loving addressing sentencing factors and harmonized the language in Apprendi, Ring, and Booker. CAAF's pre-Apprendi statement on the issue would seem to suggest there is an issue:

If “aggravating factors” used in channeling the discretion of the sentencing authority in death cases were elements of the crime, we would have no choice but to hold that they must be set forth by Congress and cannot be prescribed by the President.

United States v. Curtis, 32 M.J. 252, 260 (C.M.A. 1991) (citing Walton v. Arizona, 497 U.S. 639 (1990), which was specifcially overruled by Ring v. Arizona). Maybe someone should publish an article on the issue of whether the military capital sentencing procedure complies with Ring and whether the President's creation of additonal elements for offenses in the Maximum Sentence table in the MCM raises any Apprendi or Ring issue? I think I'll work on that.

No Man

Supremes deny cert in Quintanilla

The Supreme Court just announced that it denied certiorari in Quintanilla v. United States. See United States v. Quintanilla, 63 M.J. 29 (C.A.A.F. 2006). Quintanilla's cert petition asked that the Court hold the petition pending its decision in Carey v. Musladin, No. 05-785.

The Supreme Court's action probably elminates a thorny procedural question that arose when the case was remanded to Camp Pendleton and began to progress with its retrial despite the fact that a cert petition was simultaneously pending. This remand appears to have violated CAAF precedent:

As this Court discussed in a different context in United States v. Boudreaux, 35 M.J. 291 (CMA 1992), cert. denied, 122 L. Ed. 2d 743, 113 S. Ct. 1365 (1993), a criminal case in the court-martial system moves along "a time-line" or through "a 'tunnel of power'" where, depending upon the locus of the case, a particular authority has power over the substance of the case. See 35 M.J. at 293; and at 296 (Sullivan, C.J., concurring in the result). Thus, except for interlocutory maneuvers, for example, which may push the case ahead or pull it back, a court-martial case follows an orderly procession during which, at any given time, it rests within the power of a single authority.

United States v. Diaz, 40 M.J. 335, 343 (C.M.A. 1994).

CAAF nevertheless denied a petition for extraordinary relief to halt proceedings in the case until the Supremes ruled on the cert petition. Quintanilla v. Commandant, USDB, __ M.J. __, Misc. Nos. 06-8019/MC & 06-8021/MC (C.A.A.F. July 21, 2006).

--Dwight Sullivan

The Golden CAAF: A rare award

Some years no Pulitzer Prize is awarded in a given category. Can you imagine how awful the nominees must feel? It would be bad enough to lose out to some other piece of work, but a "not awarded" tells every nominee, "No, you're just not good enough."

Well, for nine of the last ten years, the Supremes have declined to award a "Golden CAAF" to any military appellate defense counsel. (I'm just viciously ripping off Marcus Fulton's "Golden CAAF" reference. I will no doubt continue to do so. Marcus, do I owe you a royalty?) I have found only four cert grants for CAAF cases over the last decade. Three of those were on petitions by the S.G. -- Clinton v. Goldsmith, Scheffer, and a bunch of Scheffer trailers (see United States v. Mobley, 523 U.S. 1256 (1998)). The only grant I found for a petition filed by an accused was O'Connor v. United States, 535 U.S. 1014 (2002). In O'Connor, the Supremes GVRed for further consideration in light of Ashcroft v. Free Speech Coaltion, 535 U.S. 231 (2002). At the end of the day, however, O'Connor received no meaningful relief. After cleaning up the offenses of which he was convicted, the Air Force CCA ulimately held, "We are convinced beyond a reasonable doubt that absent the error, the appellant's sentence would not have been less than originally approved." United States v. O'Connor, 2003 WL 22495721 (A.F. Ct. Crim. App. Oct. 29, 2003), aff'd, 60 M.J. 118 (C.A.A.F. 2004).

The last time the Supremes granted a cert petition filed by a military accused and gave the case plenary consideration was exactly eleven years ago today. Edmond v. United States, 516 U.S. 802 (1995). Of course, that case didn't end happily for the defense. See Edmond v. United States, 520 U.S. 651 (1997). Edmond appears to be one of only eight cert petitions that resulted in the Supremes giving plenary review to a CAAF/CMA decision. (The others are Clinton v. Goldsmith, Scheffer, Loving, Ryder, Davis, Weiss, and Solorio.) There have also been a handful of GVRs.

If anyone is aware of any cert grants I overlooked, please let me know.

--Dwight Sullivan

Sunday, October 01, 2006

The Supreme Court's gerrymandered certiorari jurisdiction

CAAF's opinion in Loving is subject to review by the Supreme Court because it grants extraordinary relief. If, however, CAAF had denied relief, it wouldn't have fallen with the Supremes' certiorari jurisdiction. This is just one example of how the Supremes' certiorari jurisdiction is gerrymandered to generally favor the government.

The Supreme Court's certiorari statute puts four kinds of military justice cases within the Supremes' reach: (1) death penalty cases; (2) cases certified to CAAF by a Judge Advocate General; (3) cases in which CAAF granted a petition for review; and (4) “Cases, other than those described in paragraphs (1), (2), and (3) of this subsection, in which the Court of Appeals for the Armed Forces granted relief." 28 U.S.C. 1259. This fourth category can be translated to "cases in which CAAF has granted exraordinary relief."

The government enjoys an enormous advantage under this jurisdictional scheme. EVERY CCA opinion that favors the accused can go to the Supremes if the JAG certifies it to CAAF. On the other hand, the many cases in which the CCA rules for the government but where CAAF denies appellant's petition for grant of review cannot. See also UCMJ art. 67a ("The Supreme Court may not review by a writ of certiorari under this section any action of the Court of Appeals for the Armed Forces in refusing to grant a petition for review."). The Supremes' certiorari jurisdiction rule for extraordinary writ cases is also tilted toward the government. It is certainly true that the government is SOMETIMES (though very rarely) the petitioner in a military extraordinary writ case. Indeed, the case that established the CCAs' extraordinary writ jurisdiction arose from a goverment petition. See Dettinger v. United States, 7 M.J. 216 (C.M.A. 1979). But certainly the accused is the successful extraordinary writ petitioner far more often than is the government, while the accused is also an unsuccessful extraordinary writ petitioner far more often than the government. Under 28 U.S.C. 1259(4), the government can seek cert in almost every writ case it loses at CAAF (like Loving), while avoiding further review in almost every writ case it wins at CAAF.

There can be little doubt that this outcome was intentional. The DOD pushed for the Supremes' certiorari jurisdiction over CMA cases in the Military Justice Act of 1983 because it was unhappy with many Fletcher-era CMA rulings, but had no practical means to challenge them. While an acccused who lost before CMA could often seek collateral review in the Article III courts, the government could not.

Certiorari review has not proven to be particularly beneficial to the accused in the military justice system. Ryder v. United States, 515 U.S. 177 (1995), appears to be the only defense victory among the cases that have gone to the Supremes for plenary consideration under 28 U.S.C. 1259 -- and the relief in that case wasn't meaningful (which may help to explain why the accused prevailed). I am aware of only one case in which an accused actually received meaningful relief as the result of 28 U.S.C. 1259 -- United States v. Goodson, 22 M.J. 22 (1986) (per curiam), which the Supremes had GVRed for further consideration in light of Smith v. Illinois, 469 U.S. 91 (1984).

While expanding the Supremes' jurisdiction may prove unhelpful to the defense in practice, it would eliminate the appearance of gerrymandering in the government's favor. And to an individual aggrieved litigant, any chance of success if better than none.

This summer, the American Bar Association's House of Delegates adopted a recommendation urging Congress to "amend 28 U.S.C. § 1259(3) and (4) to permit discretionary review by the Supreme Court of the United States of decisions rendered by the United States Court of Appeals for the Armed Forces that deny petitions for review of courts-martial convictions or deny extraordinary relief." See generally http://www.abanet.org/crimjust/policy/am06116.pdf#search=%22american%20bar%20association%20equal%20justice%20for%20our%20military%22 (Report and Recommendation 116). And on St. Patrick's Day 2005, Representative Susan Davis introduced H.R. 1364, the Equal Justice for Our Military Act, which would expand the Supremes' certiorari jurisdiction over cases where CAAF denied extraordinary relief. It was referred to committee in April 2005, where it has apparently remained in hospice care since.

All of that said, I don't think the S.G. will use the government's gerrymandered cert jurisdiction to seek the Supremes' review of the Loving decision. Loving seems to be a fairly straightforward application of Wiggins. The only issue that might even tempt the S.G. is whether CAAF retains extraordinary writ jurisdiction after the Supreme Court has affirmed the case but before the President has finally approved the death sentence. The number of cases that issue affects, however, is sufficiently miniscule that I don't believe a cert petition is in the cards.

--Dwight Sullivan

As Maryland goes, so goes the military?

At two points in Loving (one in the majority opinion, one in the dissent), the subject of the standard for capital representation in Maryland arises. See Loving v. United States, __ M.J. __, No. 06-8006, slip op. at 21 (C.A.A.F. Sept. 29, 2006); id. at 16 (Crawford, J., dissenting). This seems natural enough, since Loving involves an application of the Supreme Court’s opinion in Wiggins v. Smith, 539 U.S. 510 (2003), which was an ineffective assistance of counsel case involving a Maryland death sentence. But it also reminds us that military law is closely tied to Maryland law.

Those of you who know me may be skeptical of this claim. You know that I was born in Maryland 45 years tomorrow, that I have been a member of the Maryland bar for almost 20 years, and that I bleed Terrapin red. (Come to think of it, all of us have Terrapin red blood – even Duke fans.) So for you skeptics, here’s the evidence.

During the House Hearings on the UCMJ, then-OSD Associate General Counsel Felix Larkin explained, “The civil crimes in the Articles of War, as defined by the manuals, were generally the definitions in the common law, actually the common law of Maryland which, as a matter of fact, is very close to the Federal law definitions but is not identical.” Hearings Before a Subcomm. of the Comm. on Armed Services, House of Representatives, on H.R. 2498, 81st Cong., 1st Sess. 1238 (1949). Similar language then appeared in both the House and Senate Armed Services Committees’ reports on the UCMJ. H.R. Rep. No. 491, 81st Cong. 1st Sess. 35 (1949); S. Rep. No. 486, 81st Cong. 1st Sess. 32 (1949).

This language led the Court of Appeals for the Armed Forces, in an opinion authored by Judge Crawford, to declare that Maryland law is an important source of authority in construing the UCMJ punitive articles that are based on common law offenses. United States v. Romano, 46 M.J. 269, 274 (C.A.A.F. 1997) (“The military has a hierarchical scheme as to rights, duties, and obligations. The highest source of these is the Constitution, followed by the Uniform Code of Military Justice, the Manual for Courts-Martial, departmental regulations, service regulations, and the common law of Maryland (
see S.Rep. No. 486, 81st Cong., 1st Sess. 32 (1949).").

This is an important practice point: whenever construing one of the UCMJ's non-military offenses, you should analyze Maryland law construing the same offense to determine if it helps your client’s position.

--Dwight Sullivan

U.S. v. McOmber RIP

As Marcus Fulton long ago predicted, United States v. Finch, finished off the McOmber Rule requiring an investigator to notify an acused's attorney that the accused is about to be interrogated and then to give the attorney a reasonable opportunity to be present at the interrogation. In Finch, CAAF directly addressed the continuing application of McOmber and expressly overruled it in light of Minnick v. Mississippi, 498 U.S. 146 (1990) and McNeil v. Wisconsin, 501 U.S. 171 (1991). What I find most interesting about this is that Judge Crawford relies on the "absence of a distinct military rationale justifying its continued application" to overrule McOmber. I wonder if this sort of Article 36, UCMJ reasoning (following the rule in federal districit courts unless there is a distinct military reason not to) would be applied in favor of the defense, such as in United States v. Walker, a capital case currently pending before CCA.

Congratulations to Marcus Fulton and Brian Mizer for finally killing off McOmber!

Posted by Jason Grover