PBS Supreme Court

A new series on the Supreme Court premiers tonight on PBS in most viewing areas. Perhaps this will prompt a few justices to man the studio phones during the next PBS pledge drive . . .

New CAAF Cases: Foster and Brooks

CAAF released two new cases today.

Foster involved a judicial disqualification issue. Particularly, the case centered on the military judge's hostility to a defense expert in a child sexual abuse case. The expert was to testify about the effects of multiple interviews on a child accuser's credibility. CAAF affirmed the case and said that the judge was properly hostile to the witness because the expert could not be a human lie detector. CAAFlog participant Bill Cassara loses a hard fought battle in that case.

Brooks is another "human lie detector" case, this time with the government employing the human lie detector. The expert testified regarding the likelihood that the 5-year child was lying about the child sexual abuse. CAAF reversed stating that the 98% probability of truth telling expressed by the expert was prejudicial.

Both cases were unanimous. Judges Stucky and Ryan did not participate.

Weird

When one accesses Blogger in Gitmo, it's in Spanish. (Super G, I can now relate to your experience!) Does that suggest that someone in Cuba could hop onto Blogger if he or she had access to a computer hooked to the Internet?

Noyd

CAAFlog seems to think this is a place for substantive discussion of military law. I'm kind of enjoying the People Magazine approach for a while while he's out of pocket.

CDR Klant let me know today that former Air Force Captain Dale Noyd (Noyd v. Bond) recently died. Here's a copy of the NYT obit. The picture of a seven-year-old Dale Noyd circa 1938 wasn't part of the article, but I'm pretty sure it's him. There can't have been too many Dale Noyds growing up in Wenatchee in the 30's.

By DOUGLAS MARTIN
Published: January 28, 2007
Dale E. Noyd, who as a decorated Air Force captain and fighter pilot attracted worldwide attention in the 1960s as a conscientious objector who objected to only one war, the one in Vietnam, died Jan. 11 in Seattle. He was 73.

The cause was complications of emphysema, his son, Erik, said.
Captain Noyd seemed the model serviceman. He was the only member of the 1955 Reserve Officers Training Corps class at Washington State University to be offered a regular, not a reserve, commission. He received a medal for successfully landing a badly damaged nuclear-armed F-100 fighter at an English airfield. He taught at the Air Force Academy.

But after 11 years in the Air Force, he became deeply disturbed by the Vietnam War, which he regarded as immoral and illegal. In 1966, he wrote an eight-page single-spaced letter to the Air Force asking that he either be allowed to resign his commission or be classified a conscientious objector. Denied on both counts, Captain Noyd took his case to federal court in Denver in March 1967, saying he was motivated by humanist beliefs. The American Civil Liberties Union, which represented him, said it was the first lawsuit claiming conscientious objector status based on opposition to a specific war. In December 1967, the Supreme Court refused to hear the case, saying it belonged in military jurisdiction.

At roughly the same time, the Air Force ordered Captain Noyd to train a pilot who was likely to be assigned to Vietnam. Captain Noyd refused and was court-martialed for disobeying orders.

His military trial, before a panel of 10 officers, was significant in part for what it did not address: the captain’s assertions that the war was immoral and illegal as well as the basis of his professed humanism. The central issue of whether his objecting to a particular war, rather than all wars, was valid was also ruled out as a matter for the court.

The panel did allow discussion of how Captain Noyd’s humanist beliefs affected his character. In the sentencing phase of the trial, a theologian told the judges, all Vietnam veterans, that risking one’s life for a core belief, as the officers had all done in battle, constituted a religious act. That was persuasive. The prosecutor summarized this view as “two religions butting heads against each other.” As a result, Captain Noyd was sentenced March 9, 1968, to a year in prison instead of the five years he could have received. He was given a dishonorable discharge and stripped of his pension and benefits.

Dale Edwin Noyd was born in Wenatchee, Wash., on May 1, 1933. His superior R.O.T.C. record gave him the privilege of choosing his first base, at Woodbridge, England.

In the resignation letter preceding his suit, he wrote, “My three-year assignment in an operational fighter squadron — with the attendant capacity for inflicting terrible killing and destruction — was based on the personal premise that I was serving a useful deterrent purpose and that I would never be used as an instrument of aggression.”

What changed Captain Noyd’s world view were three years he spent at the University of Michigan doing graduate work in psychology. The Air Force paid his tuition in return for six more years of service.

Charlotte Doyle, a fellow graduate student who is now a psychology professor at Sarah Lawrence, said in an interview that Captain Noyd arrived in class in a crisp blue uniform and rose whenever a woman entered the room. Quickly, though, he was swept up in intellectual conversations with other students.

“His whole intellectual framework changed,” Ms. Doyle said in an interview.
The Air Force sent him to teach psychology at the Air Force Academy. He assigned readings of French existentialists and tried to encourage a liberal arts atmosphere.

Captain Noyd served his sentence at Cannon Air Force Base in Clovis, N.M., and was released in December 1968. A month later, the Supreme Court declined to hear an appeal of his case but noted that under a recently passed law, Captain Noyd should not have been imprisoned during his appeal.

Mr. Noyd was twice divorced. In addition to his son, of Kirkland, Wash., he is survived by his daughter, Heather Taylor, of Vancouver, Wash.; his brother, Gus, of Wenatchee; and five grandchildren.

He went on to teach at Earlham College in Indiana for two decades, then built a boat and sailed it to Tahiti. He lived in Hawaii before coming home to Washington State when his health began to fail.

Mr. Noyd kept two certificates on the wall of his study, his son said. One was his commendation for heroism, the other his dishonorable discharge.

Terry unaffected by Wiesen MCM amendment

I previously noted that the result in Briggs and Clay would have been different had they been tried today, due to the R.C.M. 912(f)(4) change designed to compel a different result in United States v. Wiesen, 56 M.J. 172 (C.A.A.F. 2001). Not so Terry. In Terry, the member CAAF ruled should have been removed due to implied bias remained on the court-martial panel that convicted and sentenced Staff Sergeant Terry. So even if this case had arisen after the 2005 change to R.C.M. 912(f)(4), the results would have been the same.

--Dwight Sullivan

New CAAF opinion

Greetings from Guantanamo.

There is a new opinion on CAAF's web site: U.S. v. Terry, No. 06-0314/AF. Judge Baker for the court. Judge Baker continues his trend as the court's main expositor of the law of challenges for cause. The court sets aside the findings and sentence due to the military judge's improper denial of a defense challenge for cause.

Like the other 13 opinions issued by CAAF thus far this term, the decision was unanimous.

Toth

Mr. Toth of Toth v. Quarles fame, since we've been on the subject of meaningful relief from the Supreme Court.

On the road again

I'm off to a substantially warmer clime with uncertain computer access. I may not be able to post anything until Wednesday night or Thursday.

WWBJD?

As many of you know, I am a huge fan of Bill James, the great sabermetrician (baseball research guru). So in continuing to think about the Christian pro se IFP cert petition, I found myself wondering: What would Bill James do? (WWBJD?) And the obvious answer is that he would comb through the available data looking for patterns.

So I did just that and was astounded by what I found.

I compiled my list of military cert petitions by searching for "Armed Forces" in the Supreme Court's on-line docket. Since any military cert petition would seek a writ of certiorari directed to CAAF and since any military case that meets the Supremes' statutory jurisdiction would have CAAF as the lower court, I believe this search reveals every case in the universe. But if I missed a case, please, please post a comment to let me (and everyone else) know.

Here's what I found:

Since the Supreme Court's October 2002 term, the Army Defense Appellate Division has not filed a single cert petition. In that time, seven cert petitions have been filed in Army cases, but 5 (Christian, Shelton, Adams, Ronghi, Glover) were filed pro se IFP while two (Crousser, Saintaude) were filed by civilian counsel.

During that same period, eight cert petitions were filed by the Air Force Appellate Defense Division (Lovett, Jenkins, Keyser, Davis, Traum, Moses, Robinson, Phillips), though one, Lovett, was filed after Lovett won a writ from CAAF compelling continued representation. One additional Air Force case (Johnson) was filed pro se IFP.

Even the Coast Guard appellate defense counsel filed one more cert petition (Stirewalt) than all of Army DAD combined.

During that same time span, Navy-Marine Corps Appellate Defense filed 14 cert petitions (Craig, Rose, Washington, Parker, Magyari, Quintanilla, Fisher, Disney, Pratchard, Ribaudo, Allen, Strother, Dowty, Hurn), while civilian counsel filed cert petitions in another three Navy-Marine Corps cases (McKeel, Lucas, House). No sailor or Marine filed a pro se cert petition during that period.

Interestingly, in the October Term 2002, Army DAD filed three cert petitions (Willenbring, Morgan, Benton).

It is also interesting to note some Army cases where cert was never sought filed -- by counsel or IFP. For example, why was no cert petition filed in Kisala, 64 MJ 50, a case that presented the same issue as Rose, 64 MJ 56, where the Navy-Marine Corps Appellate Defense Division filed a strong (albeit ultimately unsuccessful) cert petition? Scrolling through CAAF opinions in Army cases where the accused lost reveals many other cases where the accused lost an issue that, to me at least, would rise about the "frivolous" standard.

Perhaps an Army DAD counsel would say, "Ah, but we were right. The 14 cert petitions filed by the Navy-Marine Corps Appellate Defense were a grand waste of time, since all of them were denied." But it is not a counsel's duty to decide whether an issue is certworthy, much less whether it is likely to be granted; rather, it is a counsel's duty to decide whether the issue clears the frivolousness hurdle. Many cases will exceed the frivolousness standard but fail the certworthiness standard. I believe it is a military appellate defense counsel's duty to file a cert petition in those cases, if the client asks counsel to do so. The effective date of LWOP issues in Christian and Ronghi, in both of which the confined soldier filed a pro se IFP petition, easily cleared the frivolousness standard.

I began this post by asking WWBJD. He would actually do quite a bit more than I did tonight. He would look at how many available cases there were from each service over the relevant time period. In other words, how many CAAF cases did members of each service lose, since that is the universe of cases in which a cert petition might be filed. (Remember that universe also includes many CAAF summary dispositions that are not on the opinions page of its web site.) He would also do some sort of qualitative assessment to determine how many cases in that universe would probably fail the "frivolousness" test. Those cases would be excluded and the remaining cases would give us some guide of the pool of cases in which the appellate defense counsel could have, but didn't, file a cert petition. Only with the resulting numbers in hand could truly meaningful comparisons be made among the various services.

Sure, sure -- and someone should do all of that. But when the number of cert petitions filed by the appellate defense division of the largest branch of our military since 18 November 2002 is precisely zero, it seems apparent that there is a problem. Further analysis is necessary only to tell us the true extent of that problem.

--Dwight Sullivan

A poignant plea

I read something poignant today. A number of CAAFlog posts have discussed the cert petition in Christian v. United States, a pro se IFP petition filed by a USDB inmate. The Supremes requested a response from the S.G., which he recently filed.

The first QP in the petition concerns the effective date of LWOP, which has been the issue in a series of CAAF opinions. See, e.g., United States v. Ronghi, 60 M.J. 83 (C.A.A.F.), cert. denied, 543 U.S. 1013 (2004); United States v. Stebbins, 61 M.J. 366, 368 (C.A.A.F. 2005); United States v. Christian, 63 M.J. 205 (C.A.A.F. 2006). If it takes this many cases to resolve the issue, it seems to me that the issue rises above the frivolous standard.

Supreme Court Rule 42.2 uses the term "frivolous" but doesn't define it. Unfortunately I don't have a copy of Stern & Gressman at home. But this definition of frivolousness from a 7th Circuit opinion seems pretty good: "An appeal is frivolous when the result is obvious or when the appellant's argument is wholly without merit." Indianapolis Colts v. Baltimore, 775 F.2d 177, 184 (7th Cir. 1985).

Under that test, how many people think that a cert petition on the effective date of LWOP is frivolous? I don't. But Christian tells us that an Army DAD counsel said it was.

The second QP in Christian's pro se IFP cert petition is: "Where Petitioner requested representation to the Supreme Court, per Article 70, UCMJ, and was denied this right, was his 6th Amendment right to representation denied"?

The cert petition says that when Christian's military appellate defense counsel called him to tell him he lost at CAAF, the counsel also said "she would not represent him to the Supreme Court, as it was too expensive and the issue was not good enough." Christian, cert petition at 15. After Christian asked to speak to the head of DAD, he received an appointment to talk to another appellate defense counsel. Id. at 16. According to the cert petition, that lawyer said Christian "was not going to be represented because his issue was 'frivolous' and that decision had been signed off by the division chief." Id.

In his argument section, Christian writes: "The defense appellate division, has for years, flagrantly denied this Constitutional right to military prisoners, who depend on them for honest representation. If our defense counsel is not our friend in court, who is? The rules for bringing a petition for a Writ of Certiorari are so complex, that many of us cannot comprehend them. Add to that the frustration of trying to get the defense appellate division to do their job, and at the same time trying to get someone here at the United States Disciplinary Barracks to help, and it is only through sheer pig-headedness that one gets their petition in to the Clerk of the Court inside their 90-day window." Id. at 17.

Now I was an appellate defense counsel for many years, so I certainly don't automatically believe anything that a resident of the USDB puts down on paper. But the very fact that Christian's cert petition was filed pro se seems to provide considerable corroboration for his claims.

Also, I am well aware that given the Supremes' track record over the last couple of decades, this is really an issue about losing with counsel's help or losing without counsel's help.

But that being said, I have no doubt that when I was a captain at Navy-Marine Corps Appellate Defense, we certainly would have filed a cert petition on Christian's issue if one of our clients asked us to. Super Muppet, Clipper -- you have been stationed there more recently than I; is that still the case? Is Christian right that his case is not anomalous but reflects a common practice at Army DAD? If so, does anyone want to defend that policy? Because without hearing from that side, I find Christian's argument pretty convincing. Sure he makes some legal mistakes in his assertions, but that just goes to prove his point that he needs a lawyer by his side.

--Dwight Sullivan

Army Court-Martial News: Abu Ghraib Officer Charged

In military justice news this Friday, charges were referred against the only commissioned officer to be charged to date in connection with prison operations at Abu Ghraib. Army reservist Lt. Col. Steven Lee Jordan will face "eight charges, including cruelty and maltreatment of prisoners," reported CNN.com (here). Military Distirct Washington, Maj. Gen. Guy C. Swann, appears to be the convening authority.

CAAF recap

The last time I tried to do this, apparently I missed a case. Let me try again, incorporating more recent developments.

The three-judge version of CAAF (Chief Judge Effron, Judge Baker, Judge Erdmann) heard 20 cases in October and November. CAAF has ordered that one of these, Moran, be reargued on 13 March, as previously discussed here. That leaves 19 cases. CAAF has now decided 12 of those 19, plus Canchola, 64 MJ 245, a case in which it didn't hear oral argument.

Every CAAF decision announced thus far this term has been unanimous. (That figure may not be predictive of the overall pattern, since unanimous decisions are likely to come out more quickly than divided decisions.) Six have been written by Chief Judge Effron and three each by Judges Baker and Erdmann. Canchola was per curiam.

Only one case -- Rankin -- remains to be decided from the first argument week in October. Rankin asks that question for the ages: "Whether the business records admitted into evidence over defense objection were testimonial hearsay"?

Two cases remain to be decided from October's second oral argument week. The first is Terry, another members challenge case that has been the subject of long-standing CAAFlog fascination. Terry also includes a constructive force instruction issue.

The second case is Foster, which concerns whether the military judge became a partisan advocate for the government and whether the military judge's treatment of a defense expert denied the accused's right to present a defense.

Only two of the seven cases argued in November (one of which will be reargued) have been decided.

New CAAF opinion

There is a new opinion on CAAF's web site -- United States v. Green, No. 06-0520/AR.

A disturbing thought about Briggs and Clay

Posted below is the No Man's recap of today's three CAAF opinions, including Briggs and Clay. But here's a disturbing thought: if those two cases were tried today and the exact same things happened, the result would be affirmance rather than reversal.

The 2005 amendments to the Manual for Courts-Martial include the following:

(o) R.C.M. 912(f)(4) is amended by deleting the fifth sentence and by inserting the following words immediately after the words "When a challenge for cause has been denied" in the fourth sentence:

"the successful use of a peremptory challenge by either party, excusing the challenged member from further participation in the court-martial, shall preclude further consideration of the challenge of that excused member upon later review. Further,"

70 Fed. Reg. 60,697 (Oct. 18, 2005).

The drafters' analysis helpfully explains: "The United States is still livid over having lost United States v. Wiesen, 56 M.J. 172 (C.A.A.F. 2001), so this rule was changed to ensure that the government would prevail if the Wiesen fact pattern were to repeat itself."

No; I'm making that up. Here's what the change's drafters' analysis actually says:

2005 Amendment: This rule change is intended to conform military practice to federal practice and limit appellate litigation when the challenged panel member could have been peremptorily challenged or actually did not participate in the trial due to a peremptory challenge by either party. This amendment is consistent with the President's lawful authority to promulgate a rule that would result in placing before the accused the hard choice faced by defendants in federal district courts - to let the challenged juror sit on the case and challenge the ruling on appeal or to use a peremptory challenge to remove the juror and ensure an impartial jury. See United States v. Miles, 58 M.J. 192 (C.A.A.F. 2003); United States v. Wiesen, 56 M.J. 172 (C.A.A.F. 2001), petition for reconsideration denied, 57 M.J. 48 (C.A.A.F. 2002); United States v. Armstrong, 54 M.J. 51 (C.A.A.F. 2000).

Hhhhmmm -- actually my little joke wasn't so far off the mark.

Note how ridiculous that drafters' analysis truly is. The rule is changed to conform with federal practice? Then I guess they had better change the rule to give the accused 10 peremptory challenges in non-capital GCMs and 20 in capital cases. See Fed. R. Crim. P. 24(b). Note that in a non-capital felony case in federal court, the defense gets 10 peremptory challenges but the prosecution gets only 6. Surely there is a GREATER need to give the accused more peremptories in the military system -- where the same official who decides to prosecute the accused also gets to pick the members panel -- than in federal court. So don't give me this "conform military practice to federal practice" hogwash. The rule deprives the accused of any relief for the erroneous deprivation of the defense's SOLE peremptory challenge. It is one of the ugliest MCM amendments I can think of. Has anyone seen any litigation challenging the new R.C.M. 912(f)(4)?

--Dwight Sullivan

Three New CAAF Opinions: Briggs, Hardison, and Clay

In Briggs, which had possibly the worst QP ever, the court set aside the findings and sentence as a result of the judge's failure to dismiss the wife of the appellant's flight commander from the panel.

In Hardison, the Court set aside Seaman Hardison's sentence based on the military judge's erroneous admission of the Seaman's pre-service drug use waiver during entrance processing. The Court also said that the government's argument emphasizing that document and the Seaman's signed "zero tolerance" statement of understanding was error. The Court found the documents did not meet the "directly related" test in RCM 1001.

In Clay, the Court reversed the findings and sentence based on an implied bias issue. The 3-member Court held that because the military judge failed to make a record concerning implied bias and the liberal grant mandate that the Court erred on the side of finding error, even though the government rehabilitated the member. In this case the statements from the member were still equivocal after rehab. Teaching point: trial counsel, make sure the judge makes a record of implied bias issues and why he did not liberally grant challenges when implied bias arises.

Judges Stucky and Ryan did not participate in these decisions.

CAAF grants review in conditional threat case

On 19 January, CAAF granted review in the case of United States v. Brown, No. 06-0857/AF. The granted issue is "Whether appellant's contingent declaration constitutes communicating a threat."

In an unpublished opinion, the Air Force Court explained that Senior Airman Brown and Staff Sergeant S weren't married, but had a baby together. They had an argument about her relationship with another man. SSgt S provides this account that led to Brown's conviction for communicating a threat:

He was just going on and on about how he couldn't believe that I did that to him and he said that if he ever saw the guy again that he would kill him and he said that if I wasn't his baby's mother that he would kill me too and a few minutes later he changed it and said that if my son wasn't there then I would be dead.

'

United States v. Brown, No. ACM 36195, slip op. at 2 (A.F. Ct. Crim. App. 20 June 2006).

Now here is the cross-examination:

Q. Now, you mentioned in your testimony that [the appellant] stated to you that, "If I wasn't the baby's mother he would kill you", right?

A. He said, "If I wasn't his baby's mother then I would be dead".

Q. But you are his baby's mother, correct?

A. Yes, I am.

Q. And then he changed his statement to say, "If the baby wasn't here, you'd be dead", correct?

A. Yes, sir.

Q. But the baby was there, is that correct?

A. Yes, sir.

Id. at 3.

The Air Force Court explained that the "crux of the appellant's argument is that the words, if used as SSgt S testified, did not express 'a present determination or intent to wrongfully injure the person, property, or reputation of another person, presently or in the future.'" Manual for Courts-Martial, United States (MCM), Part IV, AP 110(b)(1) (2005 ed.).

The Air Force Court then proceeded to split the baby, so to speak.

First, the good news for Brown: "We agree with the appellant that the alleged threat to kill SSgt S, were she not his baby's mother, did not amount to a present determination or intent to wrongfully injure SSgt S. The utterance was conditioned on a variable that could not occur. Therefore, the condition negated the threat." Id. at 4.

Now the bad news for Brown: "The revised threat, to kill SSgt S if her son wasn't there, is another matter. Although SSgt S's son was there, we are convinced this was a threat in the context of the surrounding circumstances and the appellant's literal language. The relationship between the appellant and SSgt S was turbulent and their arguments occasionally turned physical. Nevertheless, the language of this declaration was distinctive in that the appellant, according to SSgt S, never threatened to kill her before - and the language was accompanied by a blow to SSgt S's head as she started to leave with their son." Id. at 5.

Regardless of the correct outcome of the granted issue, this seems like a typical instance of military overcharging. The contemporaneous battery on SSgt S is surely what we are really concerned about here. If Brown had said what he did without engaging in any physical violence, would the charge have even made it to a court-martial? I think not -- even with his other unrelated acts of misconduct. I understand overcharging for contingencies of proof purposes -- hey, I started out as a trial counsel -- but can't the government clean up cases like this and avoid appeals by asking to dismiss minor hitchhiker offenses like this once the members have found the accused guilty of the other offense? (In fairness to the trial counsel, though, the Air Force Court's opinion doesn't make absolutely clear whether the single Article 128 spec of which Brown was convicted arose from this incident, so it is possible that communicating a threat was the only conviction related to these events.)

--Dwight Sullivan

Lovett scheduled for conference

The Supremes have docketed the military cert petition in Lovett, No. 06-964, for the 16 February 2007 conference.

New published AFCCA opinion

The Air Force Court's web site continues with its new same-day service policy. The site now includes today's published opinion in United States v. Cucuzzella, __ M.J. ___, No. ACM 36280 (25 Jan. 2007).

Cucuzzella involves what strikes me as a rare fact pattern: a servicemember's conviction for rape of his own wife. Such an outcome wouldn't have even been possible until the 1992 amendment of Article 120, which eliminated the requirement that a rape victim not be the wife of the accused.

The issues in Cucuzzella concern the admissibility of the victim wife's hearsay statements to a registered nurse who worked for the Family Advocacy program and whether Airman Cucuzzella's confession was sufficiently corroborated. Held: admissible and yes.

Courts-martial for civilian contractors commentary continued

CAAFlog has had several posts concerning the recent amendment of Article 2 to provide court-martial jurisdiction for those accompanying our armed forces in the field in contingency operations, broadening the previous jurisdiction grant that applied only in times of declared war.

NIMJ Executive Director Kathleen Duignan now alerts us to a proposed bill that would seem to express Congress's sense that civilian contractors who are suspected of criminal conduct in contingency operations should be tried in U.S. district courts rather than courts-martial.

The bill, H.R. 369, goes by the rather ungainly title of the Transparency and Accountability in Security Contracting Act of 2007. The bill is sponsored by Representative David Price of North Carolina, a Democratic Assistant Whip. It has been sent to both the House Armed Services and House Judiciary Committees. Considering that one of the bill's 31 co-sponsors is House Judiciary Committee Chairman John Conyers, it should have fairly smooth sledding there.

Here's the relevant portion:

(b) SENSE OF CONGRESS REGARDING INVESTIGATION AND PROSECUTION OF ABUSES BY PRIVATE SECURITY CONTRACTORS.—It is the sense of Congress that—
(1) if there is probable cause to believe that an individual assigned to perform work under a covered contract has violated section 3261(a) of title 18, except in situations in which the individual is prosecuted under the Uniform Code of Military Justice or under other law, the Department of Defense should use the authority provided in section 3262 of title 18, United States Code, to arrest and detain that individual and transfer that individual to civilian authorities for prosecution; and
(2) the Secretary of Defense should issue guidance, as soon as possible after the date of the enactment of this Act, on how the amendment made by section 552 of the John Warner National Defense Authorization Act of 2007 (Public Law 109–364; 120 Stat. 2217) to section 802(a)(10) of title 10, United States Code (article 2(a)(10) of the Uniform Code of Military Justice), will be implemented.

--Dwight Sullivan

AFCCA now in real time

The Air Force Court issued an interesting unpublished decision today rejecting a government appeal. In United States v. Ramos, Misc. Dkt. 2006-07 (A.F. Ct. Crim. App. 24 Jan. 2007), the Air Force Court held that the government could not introduce a deposition conducted before preferral of the charges it concerned. The court also rejected the defense's cross-claims that sought to expand the issues before the court during this Article 62 appeal.

Counsel for the accused was frequent CAAFlog commentator Phil Cave.

But I am interested in Ramos for another reason as well. The opinion was dated today and was posted on the Air Force Court's web site today. This appears to be the Air Force Court's first "real time" posting, which is a welcome development for counsel who want to keep current with the law. I hope that the Air Force Court will continue to post decisions on the day of their release -- and I hope that CAAFlog readers (both of you) will also pat the Air Force Court on its metaphorical back for this laudatory move.

--Dwight Sullivan

New published CGCCA case

The Coast Guard Court's web site has a new published opinion. United States v. Hunter, __ M.J. ___, CGCMS 24298 (C.G. Ct. Crim. App. 23 Jan. 2007), is a divided opinion with Chief Judge Baum dissenting in part. All three judges agreed that the military judge erred by failing to inquire into a portion of the pretrial agreement dealing with the consequences that the CA could impose if Hunter engaged in post-trial misconduct, which of course he did.

In footnote 2, the majority spanks the military judge for failing to inquire into all of the PTA's terms. But the majority also decides that the error didn't prejudice Hunter. As I read the opinion, the majority appears to simply guess that Hunter understood the term. Chief Judge Baum dissented from this portion of the majority opinion, declining the find that the military judge's error was harmless -- especially since, as the result of post-trial misconduct, Hunter was ultimately required to serve two extra months that would have otherwise been suspended. Rather than joining in the majority's "speculation," Chief Judge Baum urged that "where an unexplained provision of a pretrial agreement has actually affected an accused, prejudice should be presumed in the absence of contrary evidence." Slip op. at 9.

The Coast Guard Court then goes on a rescue mission to save the military judge's inquiry into the providence of Hunter's plea to dishonorably failing to pay a just debt. The court concedes that "[i]t is true that details are scarce and the providence inquiry is formulaic and not especially convincing." Slip op. at 7. Yet the court concludes that "the factual details elicited in this case, though minimal, are sufficient to fulfill the requirement, in our view." Id. The court then warns, "Military judges who take comfort in this result do so at their peril." Id. Apparently there is no similar danger of an appellant being comforted by the court.

SCOTUS update

The S.G. waived the right to respond to the military cert petition in Lovett, No. 06-964. The case's docket is available here.

Apprendi Fetish Readers Only: Cunnigham v. California

The latest SCOTUS opinion extending Apprendi even further was released today. The Cunningham opinion strikes down California's determinate sentencing system that contained three tiers and required judicial fact finding to elevate the defendant from one tier to the next. The majority rejected Justice Kennedy's suggestion (here) that there is a distinction between offender and offense findings. The majority also rejected the Alito/Breyer attempt (here) to save the California system.

I ask again, and how does the military's capital punishment system survive all this? The only article on the subject (here at p. 71--click save as to download the Army Lawyer volume) does not convince me that the system survives, and even less so now that Cunningham has been decided. One of these days I'll write the rebuttal article.

Miley RIP

Did anybody catch CAAF's grant and affirmation of Miley last week? Rebecca Synder gave a great oral argument in Miley back in 2003. 59 M.J. 300. But the first CCA decision in Miley was in back in 1998. The case got to NAMARA in 1996. Chief Miley was tried on 13 September 1995. 11 plus years on appellate review, for the most part because the vacation hearing kept having problems. This was the third time Miley had appealed a CCA decision. Col Sullivan and Commodore Gansevoort may have been an O-3s when this case started.

On a side note, I cannot figure out how to get my computer to give me Google blogger in English, so I am attempting to post following Italian instructions. In case anybody was wondering, I do not know Italian like John Holt.

Jason Grover

Show me the numbers

OK, I can take a hint. Two hints, as a matter of fact. So, I followed the "so easy a caveman can use it" link to the AFCCA, only to find the day's equivalent of Ye Olde Rubber Stamp. Which got me to pondering, as I do most Friday nights, why don't the Annual Reports -- the format for which seems to have remained unchanged since 1984 -- tell us just a wee bit more about appeals than simply the CCA workload? How about outcome? If the TJAG's are tasked with reporting the number of acquittals and the number of cases where relief was denied in an Article 69 review, why not report the percentage of CCA cases where relief was granted? Some relief. Any relief. Certainly such information would be of more interest to those who read the Annual Report in the MJ's than the number of Article 138 complaints filed in any given year.

To paraphrase Willie Nelson, on the road YET again

I'll be traveling and off the net for the next 48 hours. In the meantime, I hope you will hear from other CAAFlog contributors -- maybe even Nelson's Right Eye's maiden post. :-)

BZ II to Air Force Court

Another batch of opinions is up on the Air Force Court web site. It appears that the Air Force Court is now posting its opinions from each week on Fridays. Bravo Zulu, Air Force Court!

Supremes extend response deadline in New

We have been following the cert petition in United States ex rel. New v. Gates, No. 06-691. The cert petition includes a QP asking the Supreme Court to clarify the scope of review for Article III courts' collateral review of court-martial convictions. The SG initially waived the United States' response to the cert petition. On 21 December 2006, the Supremes requested a response. On 17 January 2007, the Court extended the deadline for filing the response until 21 February 2007. Such an extension is relatively routine. But it eliminates any chance (already remote) that the case might be heard this term. If the Supremes grant review, it will be argued next term.

New published Army decision

ACCA's opinion in the case of United States v. Rios, __ M.J. ___, No. ARMY 20020231 (A. Ct. Crim. App. 18 Jan. 2007), is available here. ACCA holds that the military judge abused his discretion by denying the members panel’s request to review the testimony of two witnesses, the alleged 15-year-old rape victim and her treating physician. But ACCA concluded that the error caused no prejudice. On the contrary, ACCA observed, "Rather than prejudicing appellant," refusing to reread the testimony of the prosecution's two strongest witnesses "may have actually benefited appellant." Slip op. at 6. ACCA speculated that the refusal to reread the testimony may have contributed to Rios's acquittal on a forcible sodomy charge.

New position for Senior Judge Crawford

I understand that at a DOD press conference today, an announcement was made that Senior Judge Crawford of the Court of Appeals for the Armed Forces will be the new Convening Authority for the military commissions system.

QP in Lovett cert petition

Here is the QP in the newest military cert petition, Lovett v. United States, No. 06-964:

Whether the petitioner was subjected to cruel and unusual punishment in violation of the Eighth Amendment while in post-trial confinement when confinement officials were deliberately indifferent to his health and safety.

We previously discussed CAAF's order requiring continued appellate representation in the Lovett case here.

A capital idea

Do you have a friend who eschews capitalization in e-mails? If so, do you sometimes find it difficult to glean his or her e-mails' meaning upon first reading them? My answers to those questions are yes and yes. The reason why it's sometimes difficult to understand those e-mails, of course, is that capitalization gives us important clues to decipher a particular word's precise meaning in the sentence.

Capitalizing every letter carries just as much a cost to understanding as does refusing to capitalize any letter. Bryan Garner makes this point very well in an example I will set out below. I'm a big Garner fan, but I understand he isn't everyone's cup of tea. But any given Garner suggestion should not be accepted or rejected simply because he put it forward. Rather, it should be evaluated based on how well it promotes effective communication. Reasonable minds can and do differ on some of his suggestions, such as putting citations in footnotes. But is there a counterargument to his point about capitalization? Garner condemns writing in all caps -- like the standard format for issues presented in a CAAF supp -- because all caps "impair readability." Bryan A. Garner, A Dictionary of Modern Legal Usage 130 (2d ed. 1995). He explains that "the eye cannot easily distinguish among characters that are all of uniform size."

He then offers this example. "Try reading these passages, which are ordered by increasing readability:

"EXCEPT AS MAY BE OTHERWISE SPECIFICALLY PROVIDED IN THIS AGREEMENT, ALL NOTICES SHALL BE IN WRITING AND SHALL BE DEEMED TO BE DELIVERED WHEN DEPOSITED IN THE UNITED STATES MAIL, POSTAGE PREPAID, REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, ADDRESSED TO THE PARTIES AT THE RESPECTIVE ADDRESSES SET FORTH ON EXHIBIT B OR AT SUCH OTHER ADDRESSES AS EITHER PARTY MAY SPECIFY BY WRITTEN NOTICE.

"vs.

"Except as May Be Otherwise Specifically Provided in This Agreement, All Notices Shall Be in Writing and Shall Be Deemed to Be Delivered When Deposited in the United States Mail, Postage Prepaid, Registered or Certified Mail, Return Receipt Requested, Addressed to the Parties at the Respective Addresses Set Forth on Exhibit B or at Such Other Addresses as Either Party May Specify by Written Notice.

"vs.

"Except as may be otherwise specifically provided in this Agreement, all notices shall be in writing and shall be deemed to be delivered when deposited in the United States mail, postage prepaid, registered or certified mail, return receipt requested, addressed to the parties at the respective addresses set forth on Exhibit B or at such other addresses as either party may specify by written notice."

Id.

Does anyone think that either the first or second example is easier to read than the third? If not -- and I certainly think the third is by far the most readable of the three -- then why would we ever want to write in one of the lesser styles? (I have another reason for avoiding the second style that Garner doesn't mention. When you read something like the second example, do you sometimes conduct an internal debate about why a particular word -- say "there" or "this" or the "to" in "to be" -- is or isn't capitalized because the writer didn't use the same convention that you learned in whatever grade it was when we learned which letters to capitalize in a title? I certainly do. Using normal capitalization rules avoids distracting the reader with such internal debates.)

Garner observes, "What an odd phenomenon it is that lawyers -- whenever they want to draw special attention to passages, such as main issues in a brief or warnings in drafted documents -- make them typographically impenetrable." Indeed.

When I am considering fine points of briefwriting, I often check myself by asking, "How does the Solicitor General do it?" So I looked at several recent cert petitions filed by the SG. Sure enough, the QPs in the Solicitor General's briefs follow standard textual capitalization conventions -- no all caps or initial caps.

But in military justice practice there is a problem. CAAF Rule 24 provides that "[i]ssues presented will be set forth in upper case letters." Why on earth is that rule there? The rules have to micromanage the briefwriting to the point of commanding particular capitalization?

If anyone on the CAAF Rules Advisory Committee is reading this, please propose a change to Rule 24 to eliminate that sentence. Let the individual counsel choose how to capitalize the issue presented. I don't think anyone reading the supp will be unable to discern where the issue presented is even if it isn't in all caps. And upon locating it, the reader just might find that it is more comprehensible.

--Dwight Sullivan

Two new CAAF grants

CAAF granted review in two Army cases yesterday. The grants were posted on the CAAF web site today.

In United States v. Resch, No. 06-0863/AR, CAAF granted review of two issues and specified two more. The first issue is whether the military judge improperly considered appellant's statements during the providence inquiry into the LIO of UA during trial on the greater offense of desertion. The second issue is the legal sufficiency of intent evidence on the desertion offense. The first specified issue concerns whether the military judge erroneously failed to inquire into a potential early termination of the UA. The second specified issue is the legal sufficiency of the evidence of the termination date.

ACCA's opinion below does not appear to be available online.

In United States v. Hamilton, No. 06-0926/AR, the sole granted issue is "whether the military judge erred by failing to specify the occasion upon which the finding of guilty to distribution of valium was based. See United States v. Scheurer, 62 M.J. 100 (C.A.A.F. 2005)."

Again, the opinion below doesn't appear to be online. Given the description and cite, this appears to be a case where the accused was charged with distribution on divers occasions resulting in a finding of guilty by exceptions and substitutions to a single occasion but without the factfinder specifying which occasion that was.

One small step for an accused, one giant leap backwards for accusedkind?

BZ to LT Mizer, whose mission is to win meaningful relief for his clients and who accomplished that mission in Tate. But I do wonder if the result is a net loss for the defense bar. I hasten to add that worrying about that issue is NOT LT Mizer's job, since his client Hospital Corpsman Recruit (?) Tate surely doesn't care about how United States v. Tate will affect future military justice accused and LT Mizer's duty was to protect Tate, not the remainder of accusedkind.

But by erecting restrictions on what the defense can bargain with, isn't the likely long term effect worse deals for the defense, since, in the words of Justice Thomas, "[a] defendant can 'maximize' what he has to 'sell' only if he is permitted to offer what the prosecutor is most interested in buying."?

Justice Thomas offered this sage observation in United States v. Mezzanatto, 513 U.S. 196, 200-01 (1995). Justice Thomas reasoned for a majority of the Court:

[A]s a logical matter, it simply makes no sense to conclude that mutual settlement will be encouraged by precluding negotiation over an issue that may be particularly important to one of the parties to the transaction. A sounder way to encourage settlement is to permit the interested parties to enter into knowing and voluntary negotiations without any arbitrary limits on their bargaining chips. . . . [I]f the prosecutor is interested in "buying" the reliability assurance that accompanies a waiver agreement, then precluding waiver can only stifle the market for plea bargains.

Id. at 208.

Even CAAF, which has historically been quite paternalistic, has noted that "restrictions on pretrial agreements can work to the detriment of an accused," and then cited Justice Thomas's language from Mezzanatto about the defense being able to sell only what the prosecution is buying. United States v. Rivera, 46 M.J. 52, 54 (C.A.A.F. 1997). CAAF also quoted the following portion of Mezzanatto:

The mere potential for abuse of prosecutorial bargaining power is an insufficient basis for foreclosing negotiation altogether. . . . Instead, the appropriate response to respondent’s predictions of abuse is to permit case-by-case inquiries into whether waiver agreements are the product of fraud or coercion. We hold that absent some affirmative indication that the agreement was entered into unknowingly or involuntarily, an agreement to waive [the evidentiary objection to incriminating statements] is valid and enforceable.

115 S. Ct. at 806.

Similarly, in United States v. Weasler, 43 M.J. 15 (C.A.A.F. 1995), CAAF relied on Mezzanatto in the course of holding that while the government could not require the accused to waive an unlawful command influence motion, a pretrial agreement's provision waiving such a motion would be enforced where "the suggestion for the pretrial agreement and waiver . . . originated with appellant and his counsel." Id. at 19. If the accused can waive such a motion by failing to raise it at the appropriate time, CAAF reasoned, "then surely an accused, following a timely objection, should be permitted to initiate an affirmative and knowing waiver of an allegation of unlawful command influence in the preferral of charges in order to secure the benefits of a favorable pretrial agreement. To hold otherwise would deprive appellant of the benefit of his bargain." Id.

Of course, in Tate CAAF was merely construing R.C.M. 705(c); it wasn't concocting policy of its own making. Should R.C.M. 705(c) be relaxed to promote a freer marketplace for pretrial agreements?

--Dwight Sullivan

CAAF recap

The three judge panel of Chief Judge Effron, Judge Baker, and Judge Erdmann heard 19 cases in October and November. CAAF has ordered that one of these, Moran, be reargued, as previously discussed here. That leaves 18 cases. CAAF has now decided 8 of those 18, plus Canchola, 64 MJ 245, a case in which it didn't hear oral argument.

All 8 cases decided after oral argument have been unanimous. Chief Judge Effron was the author judge in 5; Judge Erdmann was the author judge in 3. Judge Baker has not yet issued an opinion this term. (Canchola, the other case decided this term, was per curiam and was also unanimous.)

Based on the case assignment pattern, it appears likely that Judge Baker will author at least 2 of the following 3 opinions: Hardison, Clay, and Rankin. Either Judge Baker or Judge Erdmann will likely author the third.

Change in CAAFlog Description

I noticed that the description of our blog has been narrowed. We are now a blog about military appellate practice. Didn't we used to describe ourselves as a place for informed discussion of military justice in general? Also, we no longer aspire to be the Scotusblog for the military justice bar. Are my misadventures at medical now ultra vires?

Two new CAAF opinions

CAAF released two opinions today: United States v. Tate, 06-0291/NA, and United States v. Pena, 06-0091/AF.

New military cert petition

A cert petition has been filed in Lovett v. United States, No. 06-964, an Air Force case.

Cert denied in Craig

The Supreme Court today denied cert in Craig, the military post-trial delay cert petition. Today's order list can be found here.

WaPo article

Here's a link to the article about which Commodore Gansevoort writes below.

Post scooped by CAAFlog!

On the front page of today's Washington Post is an article entitled "New Law Could Subject Civilians to Military Trial." The article discusses the amendment to Article 2, UCMJ, that was discussed on CAAFlog on October 22, 2006. See, New UCMJ Amendment October 22, 2006. According to the Post, "the change remained largely unnoticed until earlier this month, when Peter W. Singer, a Brookings Institution senior fellow who has long advocated greater accountability for contractors, wrote a piece on it for the Web site DefenseTech.org." The phrase, "largely unnocticed" is an obvious reference to CAAFlog.

Also in the article, Eugene Fidell calls the amendment to Article 2, "a law professor's dream." Only time will tell. The article notes how the Military Extraterritorial Jurisdiction Act (MEJA) was enacted, and has been amended, to extend civilian jurisidiction over civilians on the battlefield, but has never been used since it was enacted in 2000. According to the article, the Pentagon is "still developing guidance on how the new provision will be used." Many questions remain. Which service will prosecute the contractors? Is there appellate review? What rights to counsel are provided? Can a civlian be taken to non-judicial punishment?

It is a safe bet that Mr. Fidell's dream may soon be realized. It is certain that the Marine Corps prosecutor, that great engine of unecessary litigation, sweltering with the heat of injustice, sweltering with the heat of oppression, will not share in the reluctance of the United States Attorneys to prosecute civilians on the battlefield. I predict that the first case tried under the amended UCMJ will be tried by the Marine Corps and affirmed by the Navy-Marine Corps Court of Criminal Appeals. From there, the future becomes less certain.

Return of the moon

The last time I saw Judiciary Square, it was a huge mound of dirt as construction of a new garage beneath the Square got underway. But now I understand that the brilliant gold statute of a naked woman and a fawn has returned to the Square. Have you ever wondered WHY there is a statue of a naked woman and a fawn behind CAAF's courthouse? Here's the story.

The statue is part of the Joseph J. Darlington Memorial Fountain, as explained by Jacob Stein on pages 302-03 of his collection of legal commentaries. Darlington was a prominent member of the D.C. bar in the last part of the 19th Century and first part of the 20th. As Mr. Stein explains, "Shortly after his death, friends commissioned a memorial to be erected in his honor . . . ." Congress even got into the act, passing a public resolution authorizing the erection of the statue in Washington, D.C. 67 Pub. Res. 98 (1923). In a precursor of later battles between law and art, the statue's inclusion of a nude woman proved controversial when the fountain was installed in October 1923. But the sculptor, Carl Paul Jennewein, answered his critics by saying the woman was "direct from the hand of God instead of from the hands of a dressmaker." John Kelly, Answer Man Sleuths For Missing Sculptures, Wash. Post, Aug. 20, 2006, at C2. Some of you may recognize Jennewein's name -- he also sculpted the bare-breasted statue at the Department of Justice that John Ashcroft had ordered hidden behind drapes. One very funny web site refers to that episode and offers a modified version of the Darlington Fountain promoting similar modesty.

But here's my favorite part of the story, again as told by Mr. Stein: "Darlington’s greatest successes were in the trial courts, but the U.S. Court of Appeals often reversed cases he had won and sent them back for retrial. Perhaps, one of Darlington’s friends noted, that is why the nymph’s behind faces the old U.S. Court of Appeals." That old D.C. Circuit courthouse is now, of course, home to CAAF.

Maybe that helps to explain why CAAF has been so solicitous of mooning. See United States v. Choate, 32 M.J. 423, 427 (C.M.A. 1991) ("our opinion today should not be construed as making criminal mere college-type pranks like 'mooning,' even if conducted on a military base").

--Dwight Sullivan

Resource alert: Naval Law Review

The Naval Justice School has published volume 53 of the Naval Law Review. It is available both on Navy Knowledge Online and the publicly accessible NJS publication page.

Particularly relevant for CAAFlog purposes is Ave Maria School of Law professor (and Marine Corps Reserve colonel) Joe Falvey's article, Kill an Unborn Child -- Go to Jail: The Unborn Victims of Violence Act of 2004 and Military Justice, 53 Naval L. Rev. 1 (2006).

Decision time for the SG (Solicitor General, not Super Grover)

The appellate government divisions had a rough month of September. The Navy-Marine Corps Appellate Defense Division lost Dearing, Harvey, and Long. The Army Government Appellate Division -- egad! -- lost Loving. The Air Force Appellate Government Division lost Lane.

There’s an old saying that the secret to any great appeal is losing at trial. Similarly, the secret to any great military cert petition is losing at CAAF. Will a great military cert petition arise from September’s CAAF decisions? The simple answer is we don’t yet know. While more than 90 days have passed since each of the government losses, the government unsuccessfully sought reconsideration in four of its five September losers. And 90 days haven’t yet elapsed since each of those reconsideration petitions was denied.

United States v. Harvey, 64 M.J. 13, is the only case the government lost in September for which it did not seek reconsideration. Harvey was a UCI/post-trial delay case that provoked separate dissents from Judges Crawford and Baker.

As we have previously discussed here and here, the Navy-Marine Corps Appellate Government Division has made a cottage industry of challenging and defying CAAF’s ruling in United States v. Dearing, 63 M.J. 478. Dearing deals with the escalation instruction when the defense relies on self-defense. Judge Crawford dissented from the original decision. CAAF denied the government’s reconsideration petition on 15 November, meaning that the SG has until 13 February before he must decide whether he wants to continue the government’s anti-Dearing jeremiad.

In Long, 64 M.J. 57, CAAF suppressed the seizure of e-mails from a government computer over Judge Crawford’s dissent. CAAF denied the government’s reconsideration petition on 7 November, making any cert petition due on 5 February 2007.

CAAF denied the government’s petition to reconsider its ruling in Loving v. United States, 64 M.J. 132, on 11 December. The Loving opinion, over Judge Crawford’s dissent, ordered a DuBay hearing to examine an ineffective assistance if counsel claim in a military death penalty case. A cert petition would be due by Monday, 12 March 2007.

Last, but not least, is United States v. Lane, 64 M.J. 1, the subject of endless debate between the Muppet and me. (Hey, that would have been a good title for an autobiography of Jim Henson: The Muppet and Me.) Lane, of course, held that Senator Graham’s participation on the Air Force Court of Criminal Appeals violated the Constitution’s Incompatibility Clause. Judge Crawford dissented. CAAF denied reconsideration on 7 November, making any cert petition due by 5 February – the same day a cert petition would be due in Long. As I have previously contended, Lane is the most likely case of the five to result in a cert petition.

One final note: the SG’s practice in the past has been to seek an extension before filing a cert petition, so the first step to any ultimate government cert petition in a military case will likely be a request for additional time. Historically, the SG has often chosen not to file a cert petition even after seeking such an extension.

--Dwight Sullivan

BZ to the Air Force Court

As the father of a six-year-old, I have no life. So my idea of a thrilling Friday evening is to check out the military appellate courts' web sites. (Okay, I admit it. Even before I had a daughter, that would have seemed like a fun Friday night.) Tonight the Air Force Court's site didn't fail to thrill. It included a total of 7 opinions from 9 and 12 January. So it looks like the Air Force Court is no longer stockpiling its opinions for a monthly blast, but will instead share them with us on a more regular basis. BZ, Air Force Court! (For our non-naval readers who may not know what BZ means, there is -- of course, -- a Wikipedia entry explaining it.)

If today's update reflects a permanent change in practice by the Air Force Court, rather than a one-time gift, there will be only one military appellate court that limits its online opinion distribution to once-a-month. What was it that Winston Churchill said about naval tradition? (Yes, of course, there's a Wikipedia entry about that, too.)

--Dwight Sullivan

Anthrax Question (Still) Presented

So I'm at medical getting my pre-deployment physical. The lady at the clinic desk asks me if I consent to getting the anthrax vaccine. I hesitate, mostly startled that they're still asking the question. Since she saw me hesitate, the lady treated me to the party line on how the FDA has declared the vaccine safe, effective, and all that. I really didn't want to talk about it. I haven't decided yet. Any thoughts?

Fair winds and following seas to Chief Judge Baum

The next time you see Jonathan Lurie, asking him this trivia question: who has spent the longest time as an active appellate judge in the military justice system? I would be amazed if the answer were anyone other than Joseph H. Baum. The earliest appellate decision I could find on which he sat as a judge was United States v. Smith, 5 M.J. 525 (N.C.M.R. 1976). His last published opinion on the Navy-Marine Corps Court appears to be United States v. Nicholson, 13 M.J. 928 (N-M.C.M.R. 1982). His earliest Coast Guard Court decision I could find was United States v. Kurz, 20 M.J. 857 (C.G.C.M.R. 1985). And he has continued to pump them out for the last 22 years. Can anyone beat that 28-year record?

CAAFlog has heard that Chief Judge Baum is now retiring. In the naval tradition, we wish him fair winds and following seas.

CAAF to hold second argument in case involving comments on invocation of constitutional rights

On 15 November, CAAF heard oral argument in United States v. Moran, No. 06-0207/AF. The granted issue in Moran was "whether Appellant's substantial rights were materially prejudiced when prosecution witnesses and trial counsel commented on Appellant's request for an attorney and Appellant's refusal to give consent for a search and seizure of his hair and blood." United States v. Moran, 64 M.J. 80 (C.A.A.F. 2006) (order) (capitalization changed to make it readable). CAAF apparently enjoyed the argument so much that the judges are inviting counsel back to do it a second time. Of course, this time there will be two new faces at the party.

In an order dated Wednesday and posted on the CAAF web site today (like most of us, CAAF seems to be slipping a bit on its New Year's resolution), CAAF announced that "additional briefing and oral argument are necessary." Much like Linda Richman offering a topic for discussion while she's verklempt [score: CAAFlog Linda Richman metaphors -- 3; CAAFlog figure skating metaphors -- 1], CAAF ordered the parties to address two additional issues:

I. The Uniform Code of Military Justice is neither uniform nor in code. Discuss.

II. The Judge Advocate General of the Navy is neither a judge nor a general. Discuss.

No, I'm making that up. Here are the two new issues:

Whether evidence reflecting the accused's exercise of constitutional rights was admissible as part of the background sequence or chronology of events leading to the seizure or discovery of otherwise admissible evidence.

If evidence of the accused's exercise of his constitutional rights was admissible for purposes of establishing background sequence or chronology without objection, was it plain error if no instruction was given advising members that the evidence could not be considered as evidence of guilt or criminal conduct[?]

United States v. Moran, __ M.J. ___, No. 06-0207/AF (C.A.A.F. Jan. 10, 2007) (order) (capitalization again changed to make it readable).

The original issue and the two new issues will all be argued together, probably later this term to fill out CAAF's rather thin docket.

--Dwight Sullivan

If you like the familiar and tried and true, Cossio up with this case

CAAF's opinion today in Cossio treads across some well worn ground in speedy trial law. CAAF unanimously (3-0) held that 120 days of pre-trial delay did not constitute a speedy trial violation under Art. 10, UCMJ. What is interesting is the creeping influence of technology and how it is actually slowing down prosecutions. Technology and the technology to investigate technology is far and away the most time consuming investigatory tool in a prosecutor's tool box. Courts are slowly recognizing, however, that data never disappears and that computer evidence is usually found even when the savviest criminal is using the technology. In this case the Court accepted a 3 month delay in Airman Cossio's trial to investigate computer evidence. Considering Airman Cossio allegedly stole computer identities by creating a fake website for the AFSOC base known as Hurlburt Field, computer evidence was essential to the prosecution. See the real website here. My we have come a long way from speedy trial cases where the big hold up was DNA evidence, that was so 2 years ago.

Fun fact: Cossio was on appellate leave when he was apprehended for these crimes. His first court-martial was not reviewed by AFCCA until 4 months after his second court-martial was reviewed by AFCCA (on a government appeal after the military judge dismissed the charges based on a violation of Art. 10). See 1st C-M here and 2nd C-M here.

Underwhelming response from the Coast Guard

Last night I posed a number of questions inspired by the Coast Guard Court's latest opinion:

(1) What does "CGCMS" stand for in a Coast Guard Court case number?

(2) Why was Holbrook designated CGCMS 24329? When did the numbering system start?

(3) How many panels are there on the Coast Guard Court?

(4) Does every possible combination of Coast Guard Court judges get its own panel?

(5) Is there in an internal inconsistency in the Coast Guard Court's discussion of the fraudulent enlistment issue on page 5 of the Holbrook slip opinion?

(6) Does a Coast Guard regulation restrict Article 58a's automatic reduction provision from busting a Coastguardsman to E-1 if he is sentenced to a punitive discharge or confinement?

At this point I know little more than I did when I asked these questions last night. One Coast Guard alumnus suggested that looking at early Court-Martial Reports might shed some light on the questions. Pulling 1 and 2 C.M.R. off the shelf confirmed that CGCM stands for "Coast Guard Court-Martial." In early Coast Guard Board of Review decisions, the "S" stood for "Summary Court-Martial." See, e.g., United States v. Downs, 1 C.M.R. 553 (C.G.B.R. 1951). The Downs opinion indicates that Seaman Downs "was tried by a summary court-martial on May 24, 1951 under the disciplinary laws of the Coast Guard then in effect." Id. at 553. Later in Volume 1 of Court-Martial Reports, the term "special court-martial" came into use in Coast Guard cases. See United States v. Lewis, 1 C.M.R. 571 (C.G.B.R. 1951) (tried on 23-24 July 1951, less than two months after the UCMJ's 31 May 1951 effective date). But the very first decision of a Coast Guard Board of Review with a CGCMS number is the Downs case, which was tried on 24 May 1951 and was designated "CGCMS 19070." So apparently before 24 May 1951, the Coast Guard had tried 19,069 summary courts-martial. I'm still unsure of when CGCMS 1 might have been tried.

I do have an answer for Question 6. Here is the relevant excerpt from the Coast Guard's Military Justice Manual, COMDTINST M5810.1D (17 Aug 2000): "The administrative action of automatic reduction to the lowest enlisted pay grade authorized under Article 58a, UCMJ, shall as a matter of policy not be effected in the Coast Guard." Id. at 4.E.1.

Can anyone answer questions 2-5?

--Dwight Sullivan

CAAFlog welcomes a new contributor

A new contributor has joined us on CAAFlog today. Please extend a warm welcome to Nelson's Right Eye. (Gee, any guess as to the service affiliation of NRE?)

Two new CAAF cases

Two new cases are on CAAF's web site: McAllister and Cossio.

Why does the Coast Guard Court have a "Panel Ten" and other important questions inspired by today's Holbrook decision

The Coast Guard Court today issued a published opinion in United States v. Holbrook, __ M.J. ___, No. CGCMS 24329 (10 Jan. 2007).

First some questions about numbers. Can one of our many Coast Guard readers tell us what "CGCMS 24329" means. Holbrook was a special court-martial, so perhaps CGCMS stands for Coast Guard Court-Martial Special. If so, where does the "24329" come from? Is this the 24,329th special court-martial tried by the Coast Guard under the UCMJ? Or since the Coast Guard became the "Coast Guard" in 1915? Or since the United States Revenue Cutter Service was founded in 1790?

Today's decision was issued by the CGCCA's Panel Ten. Panel Ten? How many panels does the Coast Guard Court have? How many panels does the Coast Guard Court need? CGCCA's web site tells us that "[t]he Coast Guard Court of Criminal Appeals is normally composed of five appellate judges organized in panels of three for consideration of referred cases." Someone with better math skills than me (a group consisting of virtually every sentient being on planet Earth older than nine) check me on this, but I think that five people can be divided into a maximum of ten unique groups of three. If I'm right about that, then is there, in fact, a separate Coast Guard Court panel for every possible combination of judges? If so, uh, why?

Aside from these questions, which have little to do with the Holbrook case itself, today's CGCCA decision is noteworthy for three reasons: (1) its discussion of fraudulent enlistment; (2) its analysis of the Article 134 offense of fleeing the scene of an accident; and (3) its application of United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002).

First the fraudulent enlistment. Before entering the Coast Guard, Seaman Holbrook had apparently consumed prodigious amounts of marijuana and had become addicted to methamphetamine, leading to a two-month treatment in a drug rehabilitation program. On his enlistment documents, Seaman Holbrook synopsized his drug use with the phrase "experimented with marijuana, but no other drugs." The Coast Guard Court rejected the defense's argument that Holbrook's plea to fraudulent enlistment was improvident because, according to the defense, an element of fraudulent enlistment is that the accused not only knew that he made false statements to the recruiter, but also knew that those false statements were material. As applied to this case, that standard would require not just that Holbrook knew his statement about drug use was false, but also that he actually knew that the Coast Guard would not enlist him had he told the truth about his preservice drug use.

The Coast Guard Court rejected this argument. The court ruled that "[n]either the plain language of [Article 83(1)] nor the longstanding case law in this area requires contemporaneous knowledge that a false representation or deliberate concealment will be determinative. The falsehood or concealment must be knowingly made. It must, in fact, result in the procurement of the enlistment. An accused is not, however, required to understand the full impact of a complete or truthful answer at the time of the false statement or concealment. This would, essentially, require complete knowledge of the service's enlistment standards and policies before entry into active duty. There is no such requirement." Holbrook, slip op. at 5. Okay, got it. Clear, lucid, and probably right.

But, at the end of the very next paragraph, the Coast Guard Court tells us, "Appellant knew his false answer was material, and Assignment of Error I is rejected. We do not address the hypothetical question of whether a lack of contemporaneous knowledge of materiality would be fatal to the charge since Appellant clearly knew that his answer was material." Id. Am I misreading something? It seems to me that the paragraph that directly precedes the one with the "We do not address" language DOES address that very question. You know, the paragraph that begins with, "We reject Appellant's expanded definition of materiality" and ends with "There is no such requirement." Can anyone reconcile the final sentence in the discussion of Assignment I with its preceding paragraph?

Now onto the fleeing the scene issue. I love practicing criminal law. This issue reminds me why. Almost every single criminal case has some interesting aspect. Here's what's interesting in the Holbrook case:

On 29 June 2004, [Seaman Holbrook]he was driving a government-owned Chevy Blazer. He had consumed eight beers during the previous four to five hours but maintained that he was not intoxicated at the time. While waiting at a traffic light, Appellant’s foot slipped off the brake pedal, and the government SUV “bumped” the van in front of it at about one mile per hour. (R. at 68.) Appellant reversed the SUV, and both he and his passenger looked for any damage to the van. None was visible. When the light turned green, both vehicles moved through the intersection. The van, however, pulled over to the side of the road. Appellant panicked and accelerated away from the parked van at around forty miles per hour through a residential area. Some time later he lost control in a turn, collided with a house, and totaled the government’s Chevy Blazer.

Holbrook, slip op. at 3.

The Coast Guard Court goes on to explain in some detail why leaving the scene of an accident isn't an offense if the accident caused no property damage or injury. Id. at 5-6. I'm just amused that Holbrook managed to "collide[] with a house."

Despite finding that Holbrook had been wrongly convicted of fleeing the scene of an accident, CGCCA applied Sales and granted no sentence relief on that basis. Id. at 8-9. I have previously railed against Sales, but even I must admit that no sentence relief seems warranted here, especially if the case is analyzed under Judge Baker's Moffeit criteria. See generally United States v. Moffeit, 63 M.J. 40, 42 (C.A.A.F. 2006) (Baker, J., concurring).

But the Coast Guard Court does grant relief for post-trial delay. The court doesn't set out a complete post-trial timeline, but from the facts sprinkled throughout the opinion, here's what we know. An authenticated record was produced 119 days after trial, the CA acted 162 days after trial, the case was forwarded to the Judge Advocate General 208 days after trial, it was docketed with the CCA 217 days after trial, and it was decided 21 months and 4 days after trial. What word would we use for such a pace in the Department of the Navy? "Alacrity"? The Coast Guard Court chose a different word: "unreasonable." Holbrook, slip op. at 8. Applying a Tardif sentence appropriate analysis to this pre-Moreno guideline case, the court upgraded Holbrook's reduction in rate by one paygrade (from reduction to E-1 to reduction to E-2). In the Department of the Navy, this relief would have been entirely illusionary because Holbrook still would have been automatically reduced to E-1 as the result of either the approved BCD or the length of confinement. See Manual of the Judge Advocate General of the Navy § 0152. I assume that some Coast Guard regulation provides greater protections from Article 58a's automatic reduction provision and that Holbrook's Tardif analysis isn't just an elaborate charade.

At some point tomorrow I'll try to summarize all of the questions I ask in this post and we'll track whether any of our Coast Guard friends provide the answers.

Semper Paratus,
Dwight Sullivan

New published CGCCA opinion

The Coast Guard Court issued a published opinion today. (Note to other CCAs: it's already up on the CGCCA web site.) Here's a link. We will post an analysis after the Maryland-Miami basketball game.

Let's Talk SCOTUS, Does Resendiz-Ponce Have Anything to Do With Military Justice?

The short answer to my own question is simply, No . . . at least not the majority opinion. So why do I write about it you ask? Scalia's dissent, and what a dissent it is. Scalia decided to chart his own course in Resendiz and decide the issue on which certiorari was granted, a novel approach for today's Supreme Court. The granted issue was whether the failure to allege an overt act in an attempt indictment was a structural error not susceptible to harmless error review. Justice Scalia's analysis of the historical precedent that indictments must allege all elements of an offense led him to conclude, contrary to the majority, that if there is a history of alleging all elements in the indictment, the failure to include an element is strutural error. The majority did not find the practice persuasive and instead found, " Not only does the word 'attempt' as used in common parlance connote action rather than mere intent, but more importantly, as used in the law for centuries, it encompasses both the overt act and intent elements." The majority concluded that use of the word attempt and the time and date of the offense sufficiently protected the accused from double jeopardy.

Now the military connection: unlike civilian practice there is a clear historical requirement that each and every element of an offense be plead on the charge sheet and submitted to the Art. 32 officer for investigation, even going so far as to require surplusage like "on active duty" in the charge sheet. Justice Scalia's analysis and the majority's analysis would both conclude that if the system's historical precedent required allegation of every element of the offense in the indictment, failure to allege the element in the indictment would be error (the majority dodged the strutural vs. harmless error question). How then is failure to allege the functional equivalent of an element of a military capital crime, i.e. aggravating factors under RCM 1004, not a structural defect in the charge sheet of every capital military case? And, therefore, also subject to structural error and not harmless error review? I'm a little verklempt! Talk amongst yourselves. I'll give you a topic: No Man's personal crusade to have Ring v. Arizona applied to capital courts-martial.

Cert denied in Rose

The Supreme Court today denied cert in Rose v. United States, the cert petition seeking review of CAAF's decision upholding a conviction for refusing to submit to the anthrax vaccine.

Moreno effect, Think of Wave Theory

In Economics class we learned about the Ellliot Wave Theory of stock market prices. See generally here (God bless Wikipedia, they have a page for everything). Essentially the theory is that a bull market (or crash) is caused by a series of increasingly larger waves, with corrective action after each up (or down) wave. In this case the initial impulse would have been Diaz. In the case of Moreno the real question is whether Moreno represents the second wave, with the crash right around the corner(e.g. crash = no one cares about post-trial delay any longer), or is Moreno a wave within a larger wave that has yet to crest?

If I was a gambling man, which one who relies on Elliott's theory to buy long and sell short has to be, I would say that Moreno and any perceived change at ACCA is just the crest of a small wave (motive wave 5 to Elliott) in a larger wave. The trend appears to not have had a real effect on convening authorities and their speed of processing the cases that have made it to and through the CCAs (these cases are all still a year old or more so there is a time lag). Once the large, institutional CA's make real changes in their processing goals and procedures, resulting in actual changes in overall processing time, we will see the crest of the post-trial delay wave. From what I can tell, that has not occurred in all the services--esp. the Marine Corps who still appear to be cleaning out their closets.

Thoughts?

A Moreno effect? (part deux)

Here in the National Capital Region, our weather continues to be influenced by the El Nino effect. Last month, I asked whether the CCAs' behavior would be influenced by a Moreno effect. See "Moreno effect?," CAAFlog, 2 Dec 2006. Would the CCAs issue fewer published opinions in an effort to pump out cases more quickly to avoid CAAF's wrath?

We have since seen that NMCCA doesn't seem to care about CAAF's wrath. See "New published Navy-Marine Corps case: the Battle of New Orleans part deux," CAAFlog, 31 Dec 2007; "Redeux," CAAFlog, 5 Jan 2007.

Let's go back to the numbers and see what they tell us about the first three months of what will be the first complete fiscal year under Moreno. Looking at the last five years, the CCAs have collectively issued fewer published opinions this year than during the comparable period in the previous years, though not by much. (For purposes of calculating the numbers, I excluded United States v. Orzechowski, NMCCA No. 200300711, 2006 CCA LEXIS 307 (N-M. Ct. Crim. App. Nov. 15, 2006), a decision that NMCCA issued on 21 September 2006 and then ordered published on 15 November 2006. See generally "NMCCA publishes previous order granting extraordinary relief," CAAFlog, 6 Dec 2006. Since the heavy lifting was done during FY 06, I will treat it as a September 2006 opinion rather than a November 2006 opinion.)

Here are the numbers of published opinions issued by all of the CCAs combined during October, November, and December over the last five years:

FY 07: 12
FY 06: 18
FY 05: 13
FY 04: 14
FY 03: 19

It may be appropriate to throw out CGCCA's numbers, since that court is so atypical. With its microscopic docket, it is unlikely to feel a Moreno effect because it simply has no backlog. And it also publishes a disproportionate share of its opinions compared to the other courts -- probably because it has more time to work on each opinion, which is consistent with the Moreno effect hypothesis. But if we throw out the CGCCA numbers, the overall pattern changes very little:

FY 07: 10
FY 06: 13
FY 05: 11
FY 04: 11
FY 03: 16

Most striking is ACCA's behavior. In FY 07 (post-Moreno), NMCCA issued more published opinions in October through December (4) than it did in FY 04 (pre-Moreno) (2). AFCCA issued more this fiscal year (5) than in any of the previous four years (4, 3, 3, 2). CGCCA issued the same number this fiscal year (2) as in FY 05.

Now look at ACCA: 1 published case during FY 07, compared to 3, 3, 6, and 5 for the comparable periods during the previous four fiscal years.

Let's compare the FY 07 output of each CCA with its AVERAGE output over the comparable period during the previous four fiscal years:

------------FY 07 ------FY 03-06 Oct-Dec average------- Difference
AFCCA: ---5 -----------3---------------------------------- +2
ACCA: ----1 -----------4.25 --------------------------------3.25
NMCCA: --4 -----------5.5 ---------------------------------1.25
CGCCA: --2 -----------3.25 --------------------------------1.25

[Blogger doesn't seem to do well with charts -- or I haven't yet figured out how to make blogger show a chart correctly. I hope you can figure out what I'm trying to say here.]

Obviously if there is a Moreno effect, it is concentrated at the Army Court. Of course, we can't draw any firm conclusions when dealing with numbers this small and periods of time this short. Maybe for some reason ACCA has been stockpiling to-be-published opinions and will issue a slew of them this month. CAAFlog will continue to follow these trends to see if any definitive pattern emerges over time.

--Dwight Sullivan

This week at CAAF

The new five-judge CAAF will make its debut on Monday morning at 0900 when it hears oral argument in United States v. Taylor, No. 06-0319/MC.

CAAF will hear a total of five oral arguments this week, three in naval cases (all Marine Corps) and two in Air Force cases. The Army will have to wait until 17 January to be grilled by the new judges.

Here are the issues in the five cases to be heard this week.

MONDAY:

No. 06-0319/MC. U.S. v. Jason L. TAYLOR. CCA 200202366.

WHETHER THE LOWER COURT ERRED WHEN IT HELD THAT APPELLANT COULD NOT ASSERT THE HUSBAND-WIFE PRIVILEGE OVER CONFIDENTIAL MARITAL COMMUNICATIONS BECAUSE ADULTERY IS A CRIME AGAINST THE SPOUSE FOR PURPOSES OF M.R.E. 504(c)(2)(A).

No. 06-0403/MC. U.S. v. Damien B. SHAW. CCA 200300312.

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY FAILING TO INQUIRE INTO THE EFFECT THAT APPELLANT'S MEDICAL PROBLEMS HAD ON HIS ABILITY TO APPRECIATE THE NATURE AND QUALITY OR THE WRONGFULNESS OF HIS ACTS.

TUESDAY:

No. 06-0615/AF. U.S. v. Patrick M. LEONARD, Jr. CCA 35740.

I. WHETHER THE MILITARY JUDGE ERRED IN CALCULATING THE MAXIMUM PUNISHMENT AND, IF SO, WHETHER APPELLANT'S PLEA WAS IMPROVIDENT BECAUSE IT WAS BASED UPON A SUBSTANTIAL MISUNDERSTANDING OF THE MAXIMUM PUNISHMENT.

II. WHETHER APPELLANT'S TRIAL DEFENSE COUNSEL MISAPPREHENDED THE MAXIMUM PUNISHMENT AND, IF SO, WHETHER APPELLANT WAS DEPRIVED OF HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE DEFENSE COUNSEL'S ADVICE WAS BASED UPON AN ERRONEOUS CALCULATION OF THE MAXIMUM PUNISHMENT.

No. 06-0714/AF. U.S. v. Heidi F. ADCOCK. CCA 36018.

WHETHER, HAVING FOUND THAT THE TERMS OF APPELLANT'S PRETRIAL CONFINEMENT VIOLATED AIR FORCE INSTRUCTION (AFI) 31-205, AND THE AIR FORCE CORRECTIONS SYSTEM PARAS. 5.8.1.2 AND 7.1.1 (7 APRIL 2004), THE MILITARY JUDGE ERRED IN NOT DETERMINING THAT THE VIOLATION "INVOLVE[D] AN ABUSE OF DISCRETION" PERMITTING CREDIT UNDER R.C.M. 305(k).

WEDNESDAY:

No. 06-0600/MC. U.S. v. Darryl S. PHILLIPS. CCA 200400865.

I. WHETHER A SUBSTITUTE CONVENING AUTHORITY CAN ORDER ADDITIONAL CONFINEMENT EXECUTED FOR FAILURE TO PAY AN ADJUDGED FINE AFTER THE SENTENCE HAS BEEN APPROVED AND EXECUTED.

II. IF APPELLANT'S CONTINGENT CONFINEMENT WAS WITH PROPER AUTHORITY, WHETHER IT WAS APPROPRIATE IN LIGHT OF OTHER POSSIBLE PUNISHMENTS ADEQUATE TO MEET THE GOVERNMENT'S NEED.

--Dwight Sullivan