New published CGCCA UA/providence inquiry opinion

The Coast Guard Court's decision web page is down, but WESTLAW includes a published CGCCA case released yesterday. United States v. Jones, __ M.J. ___, No. 1222, 2007 WL 587264 (C.G. Ct. Crim. App. Feb. 27, 2007).

Seaman Jones was found guilty of an impressive number of offenses totaling 12 specifications. One of those 12 specs was a 10-hour UA. During the providence inquiry, Jones indicated that he spent those 10 hours in a local jail. But the providence inquiry failed to explain what happened with whatever charges the civilians were holding him on. The Coast Guard Court explained:

Although the military judge implied that incarceration in a civilian jail never excuses an absence, the Manual for Courts-Martial recognizes that a member may be held by civilian authorities and prevented from returning to his or her unit but never found to have committed the offense for which detained. In such a case, the detention was not the result of the member's misconduct, and the member is not guilty of unauthorized absence. Manual for Courts-Martial, Pt. IV, ¶ 10.c.(5)(MCM), United States (2005 ed.).

Because the military judge never inquired into this potential defense, the Coast Guard Court set aside the finding of guilty to the 10-hour UA, then applied Sales and affirmed the sentence as adjudged and partially suspended.

Tracking trial-level courts-martial

I have previously written about the importance of trial-level defense counsel and appellate defense counsel conducting a contact relief to transfer a client from the former's protection to the latter's. There is a cool feature on Navy Knowledge Online that might help provide part of the solution to make sure such contact relief happens. The NKO JAG page includes a link for "Navy/Marine Corps Judicial Circuit Dockets." If you go to that page, it has separate calendars for the dockets in the various Navy-Marine Corps Trial Judiciary circuits and districts. Only three of the districts -- Hawaii, Okinawa, and Yokuska (all in the Western Pacific Circuit) -- currently include any data. But the information available for those three districts is quite helpful, especially for the Hawaii district, which includes more information about each listed case than do the other two districts in the Western Pacific Circuit.

It seems that with a little further tweaking, this system could provide a cradle to grave means of tracking cases so that it will be visible to appellate defense counsel which cases qualify for appellate review, which would also allow appellate defense counsel to verify that qualifying cases actually reach NAMARA in a timely fashion. Of course, the system should also be set up to allow trial level defense counsel to ensure that their cases are docketed with the Navy-Marine Corps Court within a reasonable period after trial and CA's action.

Now if we could only further harness technology, such as by moving to electronic records of trial, we might be able to significantly reduce post-trial delay. I firmly believe that there is a technological solution.

Othuru effect

WARNING: Because several readers have commented on the aggrandizement of the contributors to this blog, this string will contain aggrandizement of non-contributors to this blog. Those concerned with aggrandizement in general should not read further.

On February 22, 2007, C.A.A.F. granted review in United States v. Othuru. Othuru is a fascinating case, but not because of the jurisdictional problems raised by Mr. Jessup yesterday. Othuru was sentenced to one year of confinement contingent upon his paying a $34,000 fine. Because the convening authority approved the one-year sentence, jurisdiction attached pursuant to Article 66, UCMJ. This logically makes sense because springing contingent jurisdiction, dependent upon the failure to pay a fine and a vacation hearing, is unworkable. I digress.

Othuru is interesting because of the testimonial hearsay issue presented. It may also be interesting to track the effect of this case upon military recruiting in West Virginia-the Othuru effect. Othuru, a Nigerian national, married his sister just before emigrating to the United States. Upon his arrival, he enlisted and began collecting BAH for his sister/wife. After he became an American citizen, Othuru began the process of obtaining visas for his sister/wife and his mother/mother-in-law and father/father-in-law. A fraud investigator at the American Consulate in Lagos, Nigeria, confronted his sister/wife and mother/mother-in-law about their visa applications and they confessed to the very arranged marriage.

Othuru was then brought to trial on charges of making a false official statement and defrauding the United States of monies paid to him for support of his sister/wife. Othuru's sister/wife and mother/mother-in-law, who were still in Nigeria, were declared unavailable and their sworn statements given to the investigators at the consulate were admitted into evidence over defense objection as statements against interest and statements of personal or family history. The government offered the testimony of the school principal of Othuru's sister/wife, who testified that the sister/wife had always been known as Michelle Othuru. The government also offered the testimony of a Nigerian hospital worker who testified that Michelle Othuru had been born to Othuru's mother/mother-in-law and father/father-in-law. Finally, the government introduced evidence indicating that marrying one's sibling is illegal in Nigeria.

The defense offered the testimony of an investigator who tracked down Michelle's real biological brother in Nigeria. The man informed the investigator that the family had given Michelle to the Othurus when she was a little girl following the death of her family.

I share Mr. Jessup's concern as to how, in a trial by members, the confessions of Othuru's sister/wife and mother/mother-in-law could ever be harmless beyond a reasonable doubt. The author of the opinion, who has rightly been previously aggrandized on this blog, was Chief Judge Wagner. While Chief Judge Wagner is in fact one of the finest trial and appellate judges to have ever served the United States Navy, his achilles heal appears to be the Supreme Court's decision in Crawford v. Washington. He plainly got it wrong in United States v. Cabrera-Frattini, 2006 CCA LEXIS 218 (N-M. Ct. Crim. App. 2006). And he failed to appreciate the damning nature of the testimonial hearsay in Othuru. That being said, even the great Professor Wigmore defended the indefensible Articles of War in famous debates with military law reformer Professor Edmund Morgan. Chief Judge Wagner, should you ever stumble upon this blog, consider yourself aggrandized.

It would appear that Othuru's appeal is on solid legal footing after the great work done by Captain Richard Viczorek, who neither reads nor contributes to this blog, in United States v. Magyari, 63 M.J. 123 (C.A.A.F. 2006). Rick was a fine Marine Judge Advocate, and I am certain that he provided much support to Lietuenant Stephen Reyes, another fine attorney and non-contributor to this blog, who represented Othuru at the NMCCA.

I must also share Mr. Jessup's concern about the cost of this case. Could the funds expended here not have been put to post-trial delay, the war in Iraq, or that bridge to nowhere in Alaska? Who are the prosecutors who thought that they should put into evidence incriminating sworn affidavits just because a trial judge who did not know better would let them? The cost of flying witnesses to and from Nigeria, of Othuru's appeal, and inevitable rehearing will certainly outweigh the money taken by Othuru and his sister/wife. The cost of this case through appeal:$75,000. Marrying your sister to defraud the United States of money and immigration benefits: Priceless.

Tate's fate includes NC&PB date (after long wait)

Today's daily journal update includes a denial of the Navy-Marine Corps Appellate Government Division's petition to reconsider United States v. Tate, 64 M.J. 269 (C.A.A.F. 2007). United States v. Tate, __ M.J. ___, No. 06-0291/NA (C.A.A.F. Feb. 22, 2007).

LT Mizer is Tate's counsel. Brian, can you brief us on the grounds on which Appellate Government unsuccessfully argued for reconsideration?

We previously discussed the Tate opinion here.

Military death penalty system by the numbers

There is a very interesting discussion about the military death penalty in the comments to the post on the new NMCCA Chief Judge. My upcoming article in the Military Law Review provides some data relevant to that discussion, so I'll provide an executive summary here.

The basic structure of the current military death penalty system was put in place on 24 January 1984 when President Reagan signed Executive Order 12,460. With some extremely minor changes in wording, that system would become R.C.M. 1004 when the 1984 Manual took effect on 1 August 1984.

Since 24 January 1984, the military has actually tried about 46 capital courts-martial. (Only the Army actually tracks this number and, interestingly enough, its number was wrong because its database omitted one case that had been tried capitally.) The number of adjudged death sentences is probably 15. Convening authorities set aside 2 of those death sentences. The number of death penalties that have gone on to appellate review is almost certainly 13 (Dock, Gray, Loving, Murphy, Curtis, Thomas, Simoy, Walker, Parker, Kreutzer, Quintanilla, Akbar, Witt).

9 of those 13 cases have completed their direct appeal. In 7 of those, the death sentence was reversed (Dock, Murphy, Curtis, Thomas, Simoy, Kreutzer, Quintanilla). In 2 the death penalty was affirmed (Loving, Gray). In 1 of those 2 cases, CAAF has ordered a DuBay hearing on IAC -- an order that came out 10 years after the completion of the direct appeal but before the President had taken action on the death sentence. Loving v. United States, 64 M.J. 132 (C.A.A.F. 2006).

Here are comparable figures for state death penalty systems, provided by Columbia Law School Professor James Liebman and his colleagues in their "Broken System" series of studies, which analyzed every state death sentence adjudged between 1973 and 1995. See, e.g., James S. Liebman, et al., A Broken System, Part II: Why There Is So Much Error in Capital Cases, and What Can Be Done About It (Feb. 11, 2002).

A total of 5,760 death sentences were adjudged by civilian courts. Of those, direct appeals had been completed in 79% of the cases (4,578). Of those, the death sentence was reversed in 41% of the cases. Liebman then looked at the reversal rate during post-conviction review in a 28-state subgroup. (These 28 states were those in which at least one case had gone through the entire review system, including federal habeas review.) State post-conviction resulted in the reversal of about another 6% of the capital cases in which appellate review was complete (248/4,364). So the "direct appeal plus state postconviction reversal rate" was at least 47%, though it was probably actually a bit higher because any additional state post-conviction reversals from a state not in the 28-state study group would increase that reversal rate.

For reasons that I discuss in the article, the military direct appeal reversal rate is conceptually most comparable to the state direct appeal plus post-conviction reversal rate. So the military's 77.78% reversal rate compares to a state reversal rate of approximately 47%.

No military death penalty case adjudged under the current system has yet gone on to federal habeas review, so the final military reversal rate may be even higher. (The military reversal rate may also climb if, say, Loving's DuBay hearing leads to relief or if another military death penalty case currently on appellate review results in relief.)

For state systems, in the 28-state study group, the federal habeas reversal rate was 21%. So Professor Liebman and his colleagues conclude that "[n]ationally, over the entire 1973-1995 period, the overall error-rate in our capital punishment system was 68%." James S. Liebman, et al., Capital Attrition: Error Rates in Capital Cases, 1973-1995, 78 TEX. L. REV. 1840, 1850 (2000).

Because of the small number of military death penalty cases, however, the differences between the military and civilian system weren't statistically significant. And, interestingly, one state -- Wyoming -- had a reversal rate identical to the military's (7/9). James S. Liebman, et al., A Broken System: Error Rates in Capital Cases, 1973-1995 at 58 (June 12, 2000).

My article doesn't draw any particular policy conclusions from these numbers. It just lays out the data to promote informed debate and for counsel and convening authorities to use as they execute their duties in potentially capital cases.

By the way, the Columbus Clipper suggested the title for the article: Killing Time: Two Decades of Military Capital Litigation. But in light of his imminent deployment to Afghanistan, Marcus will now be known as the "Kabul Clipper."

New NMCCA Chief Judge

While attending the Walker oral argument at NMCCA today, I heard Judge Wagner referred to as Chief Judge Wagner. This led me to go back and look at NMCCA's opinions, and sure enough -- sometime after opinions were released on 11 January 2007 or before opinions were released on 12 January 2007 -- Senior Judge Wagner became Chief Judge Wagner. Compare United States v. Keltie, No. NMCCA 200500264, slip op. at 1 (N-M. Ct. Crim. App. 11 Jan. 2007) ("WAGNER, Senior Judge") with United States v. Smith, No. NMCCA 200600327, slip op. at 5 (N-M. Ct. Crim. App. 12 Jan. 2007) ("Chief Judge WAGNER and Judge VINCENT concur"). I would offer Chief Judge Wagner congratulations for assuming this important position and compliment Judge Rolph for his tenure in that position, but it would seem rather farfetched to think that either the current or former NMCCA Chief Judge would be reading CAAFlog to know that he was being congratulated.

As to the Walker argument, BZ to our very own Super Muppet of Appellate Advocacy -- who I assume will read this compliment -- for an outstanding oral argument. The bench was very engaged in the argument and each judge (Chief Judge Wagner, Judge Rolph, and Judge Vincent) was clearly well-prepared. To give you some idea of the gate at which capital cases can proceed through the military appellate system, LCpl Walker was sentenced to death on 2 July 1993 and had his case orally argued at NMCCA for the first time today. In fact, when Walker was sentenced to death, NMCCA was still NMCMR.

New published AFCCA case

United States v. Warden, __ M.J. ___, No. ACM S31029 (A.F. Ct. Crim. App. 23 Feb. 2007).

CAAF invites amicus briefs

CAAF's web site today added the daily journal from Tuesday, 20 February. CAAF granted review of five cases, two of which it summarily affirmed.

One of the remaining three granted cases was the continuing saga of United States v. Pflueger, 05-0139/MC, with its question for the ages about the difference between a remitted adjudged BCD and a disapproved BCD. (We previously discussed Pflueger here.)

The issue in United States v. Foerster, No. 07-0093/AR, involves Crawford v. Washington's application to an affidavit by Sergeant J.P. that was admitted under Military Rule of Evidence 803(6) and 807. This issue leaves me scratching my head for two reasons. First, the granted issue gives us no idea what the affidavit was about, so the true nature of this granted issue isn't apparent. (Nor is the ACCA opinion available online.) Second, how can an exhibit, to use the granted issue's words, be admitted "into evidence, under Mil. R. Evid. 903(6) and 807"? Military Rule of Evidence 807 is the residual exception that allows a statement to be admitted if it is "not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness." It therefore appears to be metaphysically impossible for an exhibit to be admitted under both Rule 803(6) and 807, because if it is admitted under 803(6), it is definitionally excluded from 807. (A military judge could, of course, admit an exhibit under 803(6) or, in the alternative, 807, but can't admit an exhibit under both.)

Now the grant referred to in this post's title. In United States v. Wilson, No. 06-0870/AR, CAAF granted review of whether an honest and reasonable mistake of fact can constitute a defense to sodomy with a child under 16. (Wilson was a guilty plea case; the ACCA opinion does not appear to be online.) In addition to granting review in Wilson, CAAF's order invited all of the appellate government and defense divisions to file amicus briefs under Rule 26.

De facto automatic jurisdiction?

The daily journal is now available on CAAF's web site through 16 February. In looking over the month to date, I was struck by the number of summary dispositions: 11.

CAAF has denied 34 petitions thus far this month. So granting and summarily disposing of 11 cases represents an enormous percentage of its petition docket. Here's a breakdown:

No reason given: 2 (these are usually long-term confinement cases where CAAF wants to give the accused an opportunity to file a cert petition with the Supremes)
Post-trial delay: 4
Error in the providence inquiry: 2
Illegal sentence: 1
Ineffective assistance of counsel: 1
Dismissing CPPA language from spec: 1

I am struck by the variety of reasons leading to the summary dispositions. The February docket suggests once again that, de facto, CAAF is seriously scrutinizing and reviewing every case that comes before it and its petition denials and summary dispositions serve the same functions as summary dispositions without oral argument in criminal cases before the 12 geographic circuits. Why not formalize that practice and simply grant an automatic appeal right to CAAF for the loser in every decision of a CCA -- by the defense or by the government, thus eliminating both the CAAF petition process and the certified issue? It doesn't appear that such a change would actually increase CAAF's workload, since it would be free to hear oral argument only the same cases it chooses to review now, with the rest being decided summarily on the basis of the briefs -- just as they appear to be deciding them summarily now on the basis of the petition and supp. This would also eliminate the ugly appearance that the government has an advantage over the defense because the government has a guaranteed path to CAAF through the certification process. While a Judge Advocate General occasionally certifies a case that the government won at the CCA level, that is sufficiently rare to be remarkable.

I think the time is ripe for such a change, which would obviously open the door to additional cert petitions in military justice cases. Perhaps a CAAFlog bill writing workshop is in order.

Fascinating statistic

I just came across a fascinating statistic in a 1980 Army Lawyer article by then-Chief Judge Everett. Chief Judge Robinson O. Everett, Some Comments on the Civilianization of Military Justice, Army Law., Sept. 1980, at 1, 3. He tells us that over the first 29 years of its operation, CMA reversed the lower court in 54% of its rulings, affirmed the lower court in 43% of its rulings and reached mixed results in the remaining 3% of its rulings. Of course, this doesn't necessarily equate to the percentage of cases in which CMA ruled for the accused, since the 54% reveral rate includes reversals of intermediate appellate court decisions that ruled on behalf of the accused (like today's Guiterrez decision, discussed here). Nevertheless, that statistic suggests that over the first three decades of CMA's operation, the accused prevailed at an extraordinarily high rate. Given CMA's mostly discretionary jurisdiction, this further suggests that a grant of review was more likely in a case in which the judges perceived a greater likelihood of reversal.

Is anyone familiar with a comparable figure for a more recent period?

The Diaz case just won't end

This was posted on the Supreme Court web site today for the case of Diaz v. United States, No. 06A795:

Feb 15 2007 Application (06A795) [to extend the time to file a petition for a writ of certiorari] granted by The Chief Justice extending the time to file until March 10, 2007.

Unfortunately I don't have enough time to run by the Supreme Court this week. But if I did, I would love to see a copy of that application. As I previously noted, Diaz actually had a cert petition filed on his behalf on 11 December 2006, which was denied on 16 January 2007 sub nom. Craig v. United States, 75 USLW 3367 (No. 06-802 Jan. 16, 2007) (order denying certiorari).

The era of three-part harmony ends

CAAF today published its opinion in United States v. Gutierrez, No. 06-5005/AR. It is another opinion of the three-judge version of CAAF -- version 07.1. Gutierrez is the first divided opinion of the term, with Judge Erdmann writing for himself and Chief Judge Effron while Judge Baker dissented.

Gutierrez reverses an ACCA ruling in favor of the accused. The Judge Advocate General of the Army certified the case to CAAF. CAAF held that the defense counsel had affirmatively waived a mistake of fact instruction as to an assault consummated by a battery charge.

In dissent, Judge Baker argues that the military judge has a sua sponte duty to instruct on those affirmative defenses that the government bears the burden to rebut if reasonably raised by the evidence.

Only one case remains to be decided by CAAF version 07.1: United States v. Wise, No. 06-0610/AR. You may recall the fascinating issue in Wise: "Whether Appellant's confinement conditions, including and in particular with respect to his claim of having been confined with Enemy Prisoners of War in Iraq, were unlawful, and whether, in the context presented, Appellant forfeited his claims of unlawful post-trial confinement by failing to exhaust his administrative remedies under United States v. White, 54 M.J. 469 (C.A.A.F. 2001)." Wise was argued on 28 November.

Lovett Denied

The Supreme Court Order List is available here and Lovett was denied.

What's New is old again

We have been following the cert petition in the New case, No. 06-691, which is a collateral attack on a court-martial conviction. On 14 February, the Court approved a request from the SG to push the SG's response to the petition back from 21 February to 23 March. The wait continues.

On the other hand, Lovett, No. 06-964, and Christian, No. 06-7397, were scheduled for last Friday's conference. We will check tomorrow's orders list for developments in those cases.

Restitution and confinement contingent on restitution are illegal sentences

I hadn't paid attention to this summary disposition from 2 February 2007 until today:

No. 06-0949/AR. U.S. v. Felecia A. JOHNSON. CCA 20040993. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, the Court notes that the military judge adjudged a sentence including the following punishment, "if you fail to tender a cashier's check in the amount of $12,960.00 in restitution to the United States Treasury within 30 days from the date of trial, that you be further confined for an additional one year." . . . Inasmuch as the President has not authorized either restitution or restitution with contingent confinement as punishments under the Uniform Code of Military Justice (UCMJ), we conclude that this portion of the sentence was unlawful. Article 18, UCMJ, 10 U.S.C. § 818 (2000); Rule for Courts-Martial 1003. . . .

But this is a case where an end that can't be accomplished directly can be accomplished indirectly. While a military judge may not impose restitution or confinement contingent on restitution, a pretrial agreement can require restitution and exact punishment on the accused if a promise to make restitution is not fulfilled. See generally United States v. Williams, 60 M.J. 360 (C.A.A.F. 2004).

Migration of military case law

In his very perceptive post on Moreno, Guert points out that the New Mexico Court of Appeals has cited Moreno. In ruling on a speedy trial issue, the New Mexico Court of Appeals cited Moreno for the proposition that "where appellate defender requested numerous delays due to 'other case load commitments,' court declined to hold the defendant accountable for such delays, concluding that ' "[o]ther case load commitments" logically reflects that [the defendant's] case was not getting counsel's professional attention, a fact that is the very antithesis of any benefit to [the defendant]' " State v. Stock, 147 P.3d 885, 892 (N.M. Ct. App. 2006) (brackets in original).

I would be fascinated to learn how the New Mexico Supreme Court discovered the Moreno case in the course of deciding Stock. Was it cited by one of the parties? If so, how did counsel for that party discover it?

Several years ago, there was an initiative by CAAF to ask West Publishing to cross-digest military appellate decisions under non-military digest topics and numbers. I believe that Gene Fidell has also been a long-standing proponent of such cross-digesting. (In fact, I think the use of "migration" in this post's title harkens back to something Gene wrote. Gene, am I right about that?) I wonder whether cross-digesting is less important today. I would be fascinated to know how important West digests remain as a tool for finding the law. As use of electronic databases has become necessary to the effective practice of the law, I suspect that use of West digests, even through the use of digest numbers on WESTLAW, has markedly declined. While I use both LEXIS and WESTLAW, I tend to use LEXIS much more -- probably because I learned it first and and I'm better at using it, not necessarily because it is better to use. In LEXIS, military appellate decisions are included in the GENFED file. I wonder whether either the New Mexico Court of Appeals or a counsel arguing Stock before that court found Moreno through a GENFED search while looking for federal case law declining to attribute delay sought by an overworked public defender to the defendant.

Is the migration of military case law to civilian courts desirable? If so, how can that process be stimulated? And does cross-digesting remain an effective tool to promote such migration?

--Dwight Sullivan

The Moreno Doppelganger

We are snowed in here in upstate New York so I thought I would devote some time to Mr. Sullivan’s theory about a Moreno effect. Nine months after Moreno was decided, it appears that the decision is both increasing and decreasing the number of decisions published by the Courts of Criminal Appeals. If one subtracts the number of published opinions devoted to questioning, limiting, or urging the C.A.A.F. to overrule Moreno, from the total number of published opinions so far this FY, the number of published opinions is only slightly higher for the Air Force and Coast Guard while significantly lower for both the Army and Navy-Marine Corps.

The Coast Guard and Air Force Courts of Criminal Appeals have each published a decision explaining or limiting the Moreno decision. In United States v. Holbrook, 64 M.J. 553 (C.G.C.C.A. 2007), the Coast Guard Court of Criminal Appeals explained that Moreno was inapplicable to its Article 66 or Tardif analysis, which “does not lend itself to bright-line rules and strict timetables.” Id. at 557. Ironically, the Supreme Court said the same thing about its Barker factors, which the C.A.A.F. now applies timelines to. In United States v. Vieira, 64 M.J. 524 (A.F. Ct. Crim. App. 2006), the Air Force Court suggested that delay caused by its deliberative process is not subject to scrutiny under Moreno. “Because most of the delay was a result of the exercise of this Court’s judicial-making authority and the appellant has not asserted any specific prejudice, we decline to grant any relief.” Id. at 529. But Moreno does not exempt from its analysis inordinate delay attributable to the deliberate processes of the Courts of Criminal Appeals. “We will apply a more flexible review of this period, recognizing that it involves the exercise of the Court of Criminal Appeal’s judicial decision-making authority.” 63 M.J. at 137. Thus, while the C.A.A.F. will be more deferential in cases where excessive delay is attributable to the Courts of Criminal Appeals, the Courts do not have the blank check that the Air Force Court believes that it has. In Moreno, the Navy Court of Criminal Appeals took six months to issue their erroneous decision. The C.A.A.F. found that this period of delay was reasonable. Id. In Viera, the Air Force Court of Criminal Appeals decided the appellant’s case nearly two years after the appellant filed his brief and one year after the appellant personally submitted additional matters. Is this unreasonable? We may soon find out. A petition was filed with the C.A.A.F. in Vieira on December 11, 2006.

This blog has previously discussed the Navy-Marine Corps Court of Criminal Appeals’ decisions in United States v. Adams, __ M.J. __ (N-M. Ct. Crim. App. 2006) and United States v. Canchola, 63 M.J. 649 (N-M. Ct. Crim. App. 2006). Both call for modifications to be made to Moreno. The C.A.A.F. has already rejected the lower court’s modifications in Canchola. United States v. Canchola, 64 M.J. 245 (C.A.A.F. 2007). Adams filed his petition for grant of review on January 10, 2007. If you subtract Adams, which was decided this FY, the numbers suggest a possible Moreno effect at both Army and Navy-Marine Corps Courts.

Interestingly, a LEXIS search reveals that the Army Court of Criminal Appeals has yet to issue an opinion citing Moreno. The Navy Court has issued forty-one opinions citing the case. The Air Force is a distant second with only four citations. One of these, United States v. Varga, (A.F. Ct. Crim. App. Oct. 12, 2006), cited Moreno only for the implied bias issued that won Moreno’s appeal. Interestingly, the Air Force Court of Criminal Appeals has never found delay to be unreasonable, and delay in that service has never triggered the Barker due process analysis. The Coast Guard has cited the case only twice. In fourth place is the New Mexico Court of Appeals with one case. State v. Stock, 147 P. 3d 885 (N.M. Ct. App. 2006). I understand from my friends at the Army GAD that the Army Court routinely issues summary dispositions. Does that explain the Army Court’s silence on Moreno? Or has the Army Court decided that discretion is the better part of valor after seeing how well the “suggestions” of the Navy-Marine Corps Court have been received above. Or has Army TJAG adequately staffed the appellate defense divisions and the court of criminal appeals and thus eliminated any Moreno problem and the need to cite Moreno for anything other than implied bias?

Moreno effect? (part trois)

Each month this fiscal year, we have been looking at the Courts of Criminal Appeals' output to see if we can recognize a statistically significant diminution in output in the wake of United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006). Adding the January numbers to the previous months' data from FY 07 and comparing them to the five-year average over Fiscal Years 03-06 yield the following results:


------------FY 07 ------FY 03-06 Oct-Jan average------- Difference
AFCCA: ---6 -----------4---------------------------__------- +2
ACCA: ---- 3-----------4.2 -------------------------------- -1.2
NMCCA: --6 -----------7 ----------------------------_-_---- -1
CGCCA: -- 6 ----------3.6 -------------------------------- +2.4

Obviously neither the Air Force nor Coast Guard data suggest a Moreno effect. Any potential Moreno effect was reduced slightly for the Navy-Marine Corps Court, where the difference between FY 07 and the FY 03-06 average declined from -1.25 to -1. The ACCA difference flattened out even more, moving from -3.25 to -1.2.

We will continue to monitor the numbers.

--Dwight Sullivan

Plane error

CAAF's just-completed Project Outreach trip sparked some controvery. In light of our previous discussion, it seems amusing that Judges Baker and Ryan weren't present at the Southern University Law Center for CAAF's oral argument in United States v. Flores.

At the start of the argument, the audio of which is now up on CAAF's web site, Chief Judge Effron explained that "Judges Baker and Ryan unavoidably have been delayed due to transportation problems but they will be participating in this case on the record."

I'll bet all five judges could have made it to 450 E Street.

--Dwight Sullivan

Another bite at the apple?

I just relooked at the cert petition in Craig v. United States, 75 USLW 3367 (No. 06-802 Jan. 16, 2007) (order denying certiorari). We previously discussed the Craig cert petition here, here, here, here, and, of course, here.

Guess what? Salvador Diaz was one of the petitioners in Craig. So why on earth was he requesting an extension of his filing deadline at the Supremes nine days AFTER his cert petition was filed? Can anyone explain this?

--Dwight Sullivan

Request for additional time to file cert petition in Diaz

This just showed up on the Supreme Court's docket:

No. 06A795
Title: Salvador Diaz, Applicant
v.
United States

Docketed:
Lower Ct: United States Court of Appeals for the Armed Forces
Case Nos.: (05-0500/NA)

~~~Date~~~ ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Dec 22 2006 Application (06A795) to extend the time to file a petition for a writ of certiorari from January 9, 2007 to March 10, 2007, submitted to The Chief Justice.

Have an ice Valentine's Day

When I left home this morning, the ice storm had knocked out power to my house. So I'm posting before I leave work since I don't know if I'll have computer access when I get home.

One person who should be having a nice Valentine's Day is Dearing, for whom 14 February represents the day after the SG's deadline to file a cert petition in his case (or DASGDTFCPIHC Day).

Next up in the SG's military justice queue is Loving. The deadline for a cert petition in Loving is 12 March.

Also, there are two military justice cases on the Supremes' conference docket this Friday: Christian, No. 06-7397, and Lovett, No. 06-964.

Finally, there's got to be some clever combination of Valentine's Day, Dearing, and Loving, but it hasn't occurred to me yet. Thoughts?

They're Back . . .

They are multiplying now that we tried to remove them. I think CAAFlog deserves a Golden Calf award, best full length blog.

Bye, bye, bovine

This post pushes the Columbus Clipper's cow off of CAAFlog's main page. Your move, Marcus.

Ghosts in the machine

On 13 October, CAAFlog noted the retirement of Judge Diaz of the Navy-Marine Corps Court. But in some ways, he's still with us. Judge Diaz was the author of a published opinion dated 24 January 2007. United States v. Samuels, __ M.J. ___, No. NMCCA 200600257 (N-M. Ct. Crim. App. 24 Jan. 2004). Remember that Judge Diaz had retired more than three months before Samuels came out. Samuels was a unanimous opinion. The final paragraph in the opinion notes, "Judge DIAZ participated in the decision of this case prior to retiring from the Marine Corps Reserves." Id., slip op. at 8. Well then what the heck was the Navy-Marine Corps Court doing with the case for more than three months?

Samuels is from Quantico, not Hawaii, but it seems Lono may be cursing it as well. First there is the mysterious three-month gap. Then there is its continued absence from NMCCA's public web site. Due to this omission, I logged onto my Navy Knowledge Online account for the first time since 2003. Forget the World Wide Web; my NKO account had cob webs on it. Unlike the public NMCCA web site, NMCCA's NKO site includes the Samuels opinion. But get this -- a track changes version of the opinion is there. For example, we see that the opinion was originally dated 16 January but was changed to 24 January. (NMCCA: we will serve no opinion before its time.) There's no real juicy change, but it still seems quite a faux pas to post this version.

But here's the funniest part of all. Note this excerpt from the opinion: "In his next assignment of error, the appellant contends that he was denied his right to a speedy post-trial review. We agree." Id., slip op. at 5. Yeah, sitting on the opinion three months before releasing it really shows the court's concern with speedy review.

On the other hand, Samuels actually sets aside a finding of guilty on speedy trial grounds, dismisses the affected charge with prejudice, and refuses to apply Sales, remanding the case for a rehearing on sentence or approval of no punishment instead. Actually, that outcome in an NMCCA case makes it even odder.

--Dwight Sullivan

The Rhodes less traveled

AFCCA today announced its published decision in United States v. Rhodes, __ M.J. ___, No. ACM 34697 (f rev) (A.F. Ct. Crim. App. 12 Feb. 2007). This is one of those cases that remind us why it's important to read CCA opinions from other services. The Air Force Court grants relief based on a doctrine I'd never heard of. The Air Force Court tells us, "The first error occurred when the trial counsel used the appellant's status as a security police officer as an aggravating factor in his sentencing argument to the members." Id., slip op. at 3. The court emphasizes that "there was no evidence that the accused's duty performance was affected or that he used his duty position as a security police officer in the commission of the offenses." Id. Now here's the kicker: "The prohibition against using an accused's duty position to increase a sentence is so well established in Air Force trial practice that it is tantamount to black letter law. United States v. Bobby, 61 M.J. 750, 755-56 (A.F. Ct. Crim. App. 2005); United States v. Gruninger, 30 M.J. 1142, 1143 (A.F.C.M.R. 1990); United States v. Lewis, 7 M.J. 959-60 (A.F.C.M.R. 1979); United States v. Moore, 6 M.J. 661, 663-64 (A.F.C.M.R. 1978); United States v. Collins, 3 M.J. 518, 520 (A.F.C.M.R. 1977); United States v. Thomaselli, 14 M.J. 726, 728 (A.F.C.M.R. 1982). It is simply not allowed unless there is some connection between an accused's duty position and the commission of the crime. Here, there was absolutely none." Id.

Here's a question directed to our readers from the Department of the Navy. (That encompasses every CAAFlog reader except Army Lurker, Fitzcarraldo, California Weird Military Organization Dude (or Dudette), and every lawyer who has ever served in the United States Coast Guard.) Have you ever seen a case involving an MP, an MAA, a SP, etc., in which the TC didn't argue that the accused's position of trust made the offense worse even if the offense was committed while the accused was on leave in some remote off-the-beaten path location like Columbus, Ohio? Has anyone not in the Air Force ever heard of this doctrine? I think you'll now be seeing it cited in a lot of other jurisdictions.

Here's the other reason I find Rhodes fascinating. Staff Sergeant Rhodes was originally convicted of one spec of using psilocyn (I have no idea what that is, but I'll bet consuming it might make you dig for diamonds in the pouring rain in your neighbor's yard wearing nothing but muddy shorts), one spec of possessing psilocyn, one spec of distributing ecstasy, one spec of stealing beverages worth less than $100, and one spec of disorderly conduct. A GCM with officer and enlisted membership sentenced him to a BCD, 10 months of confinement, total forfeitures, and reduction to E-1. CAAF set aside the psilocyn use and possession specs. United States v. Rhodes, 61 M.J. 445 (C.A.A.F. 2005). Does anyone doubt that had a CCA performed a Sales analysis, it would have affirmed a sentence including a BCD? See United States v. Sales, 22 M.J. 305 (C.M.A. 1986). Well, guess what? CAAF remanded for a rehearing on the two specs it set aside or, in the alternative, a rehearing on the sentence. The CA chose the latter and at the rehearing before officer members, Rhodes was sentenced to reduction to E-1 and forfeiture of all pay and allowances. What CCA would have thought a sentence that light was a possibility for distribution of ecstasy alone, much less distribution of ecstasy combined with two other offenses? Rhodes provides still more proof that Sales and its progeny are untenable. Oh, and the remedy that AFCCA applied for the improper sentencing argument in Rhodes? You guessed it -- reassessment of the sentence, citing Sales.

--Dwight Sullivan

Happy New Year, NMCCA

NMCCA's site on jag.navy.mil was updated today to include some of the court's January opinions. Oddly though, while Harris was put up on the web site, Samuels -- another published decision released the same day -- wasn't.

Stop reading this blog

Instead, go directly to the TJAGLCS web site and click on the Army Lawyer link. Then click on the October 2007 link. (It's actually the October 2006 issue -- maybe that glitch will be cured by the time you log on.) Then click on the "Anatomy of a Random Court-Martial Panel" link. Now read the article. Go ahead. We'll wait.

Done? What did you think? I can't recall the last time I read a law review article this fresh and interesting. The article recounts a random court-martial member selection process implemented by V Corps. The CG obtained nominations for 500 court-martial members. From these, he selected 100 -- 50 officers and 50 enlisted. Then, each individual court-martial panel was randomly selected from among those pools.

I am also fascinated by LTC Huestis's explanation for what prompted this innovation: "First, the Staff Judge Advocate (SJA), Colonel (COL) Michele M. Miller, and the Commanding General, LTG Ricardo S. Sanchez, believed that the change would benefit Soldiers. At a minimum, by adapting a random seating system that more closely mirrored the popular American notion of how a fair trial should work, Soldiers' impressions of the military justice system would improve. Second, by doing this from within, V Corps could control the details of execution and fine-tune the new process over time." Lieutenant Colonel Bradley J. Huestis, Anatomy of a Random Court-Martial Panel, Army Law., Oct. 2006, at 22, 25-26.

In his selection order, LTG Sanchez observed, "I have selected a large pool of panel members, both officer and enlisted, from which panels for particular courts-martial will be randomly selected. This large pool of panel members ensures that more soldiers are actively involved in the military justice system, and that the military justice system in V Corps is as representative of the community as possible, while still adhering to the high standards of having the best qualified panel members under Article 25, UCMJ." Id. at 27.

The article also recounts the initial test of the new system, which withstood judicial scrutiny at the court-martial level. Id. at 29-30. The military judge in that case was COL Denise Lind, a very impressive judge advocate. That case didn't produce a sentence falling within ACCA's automatic jurisdiction, but presumably some of the V Corps cases from 2005 have made it up to ACCA by now. Hey Army Lurker, any judicial action on this concept yet?

The article also recounts various implementing individuals' assessments of the pros and cons of the new system. But the article's conclusion leaves little doubt about the author's view that the experiment was a success:

By testing a randomly seated panel system, LTG Sanchez took a calculated risk to benefit his command. By using a pool of qualified members and the [Random Number Sequence] seating system, he was able to seat random panels while still adhering to the high standards of having the best qualified panel members in accordance with Article 25, UCMJ. By selecting a large pool of panel members from which panels for particular courts-martial were randomly seated, LTG Sanchez actively involved more of his Soldiers in the military justice system. These courts-martial panels were also more representative of the V Corps community. By taking this risk and implementing a new method of seating panels, LTG Sanchez and COL Miller were able to move the V Corps panel selection and seating systems closer to the American ideal of fairness and due process without adversely impacting the Corps’ good order and discipline or military mission.

Do you agree with LTC Huestis? Is this system a desirable revision? Should it be formally required by statute or RCM? Is it sufficient -- if the system were reformed this far and no more, would that eliminate criticism of the CA member selection system? Let's hash this one out.

--Dwight Sullivan

Fear and loathing at NMCCA

United States v. Harris, __ M.J. ___, No. NMCCA 200401897 (N-M. Ct. Crim. App. 24 Jan. 2007), is a seriously weird opinion. It all takes place in Hawaii -- in a series of events reminiscent of Hunter S. Thompson's The Curse of Lono. Lono begins in deranged fashion with an airline passenger whose arm is stained blue. Harris begins in deranged fashion with Petty Officer Harris "digging in his neighbor's yard in the pouring rain and dressed only in a pair of muddy shorts[,] relat[ing] a bizarre story about some 'guys trying to kill him,' and . . . 'digging for diamonds' in his neighbor's yard." Not surprisingly, shortly thereafter Harris tested positive for a controlled substance, to wit: crystal methamphetamine.

Harris must have been on crystal meth again when he turned down NJP. He was then taken to an admin discharge board, in anticipation of which a civilian friend of his named Foster provided an affidavit in which Foster said he put 2 grams of crystal meth into Harris's drink without Harris's knowledge. The admin discharge board's recorder contacted Foster, who said the affidavit was true. After the admin board was delayed, the recorder supposedly couldn't find Foster and asked the Kauai Police Department to locate him--not to intimidate him, mind you, only to track him down. (Yeah, right.) Lieutenant Asher of the KPD met with Foster and told him that his affidavit essentially confessed to violating Hawaii law. Foster than admitted the affidavit was a lie and said Harris gave him $2,500 to make the statement. Foster then made a second hand-written statement retracting his first statement.

The admin board then met, but there were problems with recording it. Harris, apparently yet again under the influence of mind altering drugs, asked to be court-martialed instead. Bad career move.

At the resulting court-martial, the defense submitted a motion to suppress Foster's second statement due to unlawful command influence. The military judge denied the motion. Foster testified, both of his statements came in, and the court-martial convicted Harris and adjudged a sentence that included a BCD and three months of confinement -- neither of which could have been imposed at NJP or by an admin discharge board.

NMCCCA spanked the military judge for applying the wrong legal standard in ruling on a UCI motion concerning the recorder's actions toward Foster and spanked the appellate defense counsel for allegedly misrepresenting the facts. Okay, so far everything is normal. But then things get weird again. Here is NMCCA's holding on this issue: "[W]e find that the appellant successfully raised unlawful command influence and that the Government thereafter met its burden to show beyond a reasonable doubt that the facts alleged by the appellate did not constitute unlawful witness intimidation or unlawful command influence."

Here's what I don't get. The decision makes clear that Foster was a civilian. At one point, the opinion states that the "recorder expressly told Lieutenant Asher [of the Kauai Police Department] that the Navy was not threatening prosecution of Mr. Foster and, in fact, had no jurisdiction over Mr. Foster." If Foster was a civilian, then how could he have been subjected to unlawful command influence? Is anyone aware of any other opinion that has found a prima facia case of UCI due to a military official's conduct toward a pure civilian?

The Curse of Lono ends with Hunter S. Thompson sitting in a hut in the City of Refuge typing out, "When the going gets weird, the weird turn pro." Both Harris and Foster could have used adjacent huts in the City of Refuge. And for both NMCCA and the law of command influence, the going seems to have gotten weird.

--Dwight Sullivan

Chinese Calendar May Say Year of the Dinghai (Fire Pig), CAAF Calendar Says Year of the Liberal Grant

As previously noted on CAAFlog, CAAF has granted yet another members issue and yet another liberl grant case. The most recently granted question presented reads:

No. 07-0084/MC. U.S. v. Deric B. HOLLINGS. CCA 200500497. Review granted on the following issue:

WHETHER THE MILITARY JUDGE FAILED TO ADHERE TO THE LIBERAL GRANT MANDATE WHEN HE DENIED A DEFENSE CHALLENGE FOR CAUSE AGAINST CHIEF WARRANT OFFICER W WHO SERVED AS ACTING LEGAL OFFICER TO THE CONVENING AUTHORITY IN APPELLANT'S CASE.

The case resulted in a per curiam opinion below at NMCCA. NMCCA's only pertinent factual revelation about the issue was:

The issue came to light during general voir dire when CWO W indicated that he “knew something of the situation.” Record at 62. During individual voir dire, CWO W stated that he was the unit personnel officer, and as the personnel officer, he was a recipient of the unit legal report which contained general information about the appellant's case. Id. He also indicated that he had received legal training as a Marine Corps legal officer in 1990 or 1991, some 12 years prior to appellant's court-martial, but was at all times serving only as the unit personnel officer. Id. at 64. CWO W testified that he would, as the unit personnel officer, occasionally certify unit diary entries recording the outcome of legal activities such as the results of courts-martial and nonjudicial punishments, which he testified was a unit diary function that could be accomplished either by the personnel officer or the legal officer. CWO W denied ever acting as the unit legal officer and there is no evidence in the record to contradict his testimony.

The opinion, as well as all NMCCA opinions for January 2007, are available on the NMCCA's Navy Knowledge On-line site. Unfortunately, the site is password restricted and I cannot tell non-sea service readers how to get a password. I have a feeling that the answer to CAAFlog's question on how the Navy can post-deicisons more quickly is answered by saying that NMCCA prefers to post on NKO, though the posting rate on NKO itself doesn't appear to be weekly.

Appellate post delay

ACCA continues its salutary practice of posting its opinions on the web on the same day they are issued. A batch of three new unpublished cases were posted today. The Air Force Court seems to have reverted from daily posting to weekly posting. While daily is preferable, weekly seems reasonable to me. I'm not sure what's happened to the normally prompt Coast Guard Court web site. The published Gormley and Lind decisions, which CGCCA issued on 31 January and which are discussed on CAAFlog here and here, still aren't on the CGCCA web site.

And then there's the Navy-Marine Corps Court. The Court's web site on jag.navy.mil has no opinions from 2007, even though the court issued two published opinions (Harris and Samuels) on 24 January 2007. (In Samuels, NMCCA dismisses a charge due to a speedy trial violation. In Harris, NMCCA rejects a number of allegations of error including unlawful witness intimidation and a confrontation challenge to a urinalysis lab report. I'll try to get analyses of both decisions up on this site by Sunday night. Another exciting weekend at Chez Sullivan!)

How can we convince the Navy-Marine Corps Court to post its decisions more quickly? How about appealing to interservice rivalry? NMCCA, are you really going to let the ARMY Court best you like this? Are there any Naval Academy alumni on NMCCA? Is the Navy JAG Corps' slogan still "A Better Practice"? That moniker appears to belong to ACCA at the moment.

But there is at least one part of the Army that the Navy-Marine Corps Court is beating. The last Army Lawyer posted on the TJAGLCS web site is from September 2006. Here's a serious question for our Army Lurker friend: has the JAG School stopped publishing the Army Lawyer?

(By the way, we are very happy to have Army Lurker and Fitzcarraldo as readers and occasional commentators. Are there ANY other non-sea service readers out there?)

Interesting Developments at C.A.A.F.

I am told by my friends at the Air Force and Navy Appellate Defense Divisions that February 7, 2007 was an interesting day at the Court. The Court ordered the government to show cause in Greska v. United States. The writ, originally captioned Greska v. Air Force Court of Criminal Appeals, seeks a writ of mandamus to the Air Force Court to prevent it from compelling counsel to disclose whether individual clients personally opposed enlargements. The writ also seeks mandamus to prevent the lower court from taking the case without counsel, after the court has denied a first or second enlargement. Following the Moreno decision last summer, the CCA's appear to have conspired to each change their rules to require disclosure of client communications and decline to accept attorney workloads as justification for enlargements of time. Their solution, and I am not joking, is to just take cases without counsel if counsel are working on other cases. Each of the Courts have now taken cases without briefs from the defense, saying that Moreno, apparently in footnote 10045, authorizes them to do so. The C.A.A.F. has invited all appellate and government divisions to file briefs as amicus curiae. I believe these amicus briefs, while not written by law students, may be granted.

The Court also granted review of an issue in United States v. Hollings, another issue centered around the liberal grant mandate. The 2007 term may not be remembered for the clipper's cow, but it will be remembered as the year of the liberal grant mandate.

All of this will be yours to digest for yourself when the C.A.A.F. updates the weekly journal.

CAAF rejects amicus brief: Why can't we be friends?

I'm trying to live up to my promise to become Project Outreach's biggest fan. But boy is CAAF making that hard.

First, let me offer a No Man-like disclaimer: I was once the appellate defense counsel in the Walker case discussed below. But I honestly believe I would be just as nonplussed if I hadn't been.

On 13 February, CAAF will hear oral argument at Loyola University School of Law. My understanding is that this is the very Project Outreach pit-stop that outed a law student who happened to be the GCM-convicted appellant in the case originally slated for argument there. That case was pulled and United States v. Roberson, No. 06-0611/MC, was inserted to plug the hole.

The granted issue in Roberson is almost incomprehensible:

WHETHER THE LOWER COURT ERRED WHEN IT DETERMINED THAT THE MILITARY JUDGE DID NOT ABUSE HIS DISCRETION WHEN HE EXCLUDED SUBSTANTIAL TESTIMONY OF MR. [M] REGARDING [D.M.'S] MOTIVES TOWARD APPELLANT, APPELLANT'S FEAR OF [D. M.] AND THE FACT THAT [D. M.] OWNED A GUN.

[There's also a specified post-trial delay issue in the case.]

Let's look at the NMCCA opinion in the case to figure out what that unlikely combination of words actually means.

LCpl Roberson was convicted of larceny and two specs of forgery for stealing and forging checks belonging to his roommate, LCpl Abrenica. The defense theory of the case was that a guy named Dominique Matson thought LCpl Roberson owed him a large sum of money, that Matson showed up in Roberson's room armed with a handgun, that Matson took LCpl Abrenica's checks, and that Matson forced Roberson at gunpoint to forge Abrenica's signature on the checks.

During its case in chief, the government put Abrenica on the stand and elicited his testimony about some statements Roberson made to him. On cross, Abrenica testified that Roberson had also told him that Matson had forced him at gunpoint to commit the offenses. During its own case, the defense wanted to call a former servicemember named Mathas to testify about threats Matson had made against Roberson, to Matson's character for violence, and to the fact that Matson owned a handgun. The military judge refused to allow Mathas's testimony unless the defense presented additional evidence to support a duress defense. The military judge found that Roberson's statements elicited during Abrenica's cross were "unpersuasive" and insufficient to reasonably raise a duress defense. NMCCA affirmed.

After CAAF granted review in Roberson, LCDR Grover moved to file an amicus brief on behalf of LCpl Wade Walker, who currently resides on death row at the United States Disciplinary Barracks. Walker's case, which will be argued at NMCCA at the end of February, includes an issue similar to Roberson's. The outcome in Roberson will likely control the outcome of that issue in Walker's case. Walker quite literally has a life-or-death interest in Roberson's outcome.

Last Wednesday, CAAF denied LCDR Grover's motion to file an amicus brief on behalf of LCpl Walker. Two days later, CAAF granted two motions to file amicus briefs. One, filed by a member of the Loyola Law faculty, asked for leave to file an amicus brief supporting the appellant and to allow students to participate in the oral argument. The other, filed by a prominent private practitioner who is a Loyola Law alumnus, asked for leave to file an amicus brief supporting the United States and to allow students to participate in the oral argument. CAAF granted both motions and gave each amicus 10 minutes to argue.

So CAAF won't agree to read the submission of a lawyer for the guy on death row whose life depends on the outcome of this case. But it will not only consider the briefs of individuals with no apparent interest in the case beyond the bizarre series of events that accidentally brought U.S. v. Roberson to the Big Easy but also spend 20 minutes listening to law students' take on the case.

Maybe CAAF had a good reason for rejecting Walker's amicus. If so, it failed to share it with us. Here is CAAF's order in its entirety: "No. 06-0611/MC. U.S. v. Isaac D. ROBERSON. CCA 200301539. Motion of Lieutenant Commander Jason S. Grover for leave to file as amicus curiae denied." So we have no means of comparing the rationale for rejecting the Walker amicus with the rationale for accepting the two Loyola amici.

Roberson itself is the appeal of a special court-martial in which the accused completed his month of confinement five years ago. But for some people, the case is deadly serious. CAAF's mission is not pedagogy; its job is to get the outcome right. It's hard to see how rejecting an amicus brief makes accomplishing that mission more likely.

--Dwight Sullivan

Gathering Dust

Well, that does it. I'm putting it back on my mantle for another year. Dearing's got no traction. Loving isn't in a particularly interesting procedural posture (Dubay or not Dubay). No matter what your Metro map says, Judiciary Square is the last stop again this year.

SG in the passing Lane

Okay, okay. 5 February has come and gone and still no cert petition in Lane (or Long). Everyone else was right and I was wrong. Next up in the queue for a potential cert petition by the SG is Dearing, with a 13 February deadline. (I think not.) The only case really still in the running for a Golden CAAF is Loving, 64 M.J. 132, with a 12 March deadline for a cert petition or request for extension.

--Dwight Sullivan

The post-trial delay fairy

In November, my daughter lost her first baby tooth. This immediately raised a question: what's the going rate for a tooth? It would certainly seem odd if the sum the tooth fairy left for my daughter's teeth was widely disparate from what her kindergarten classmates raked in for their surplus incisors. (By the way, in Anne Arundel County a tooth is worth $1.50.)

Now here's a question for CCA judges: what's the going rate for 143 days of pre-Moreno delay? A new CGCCA case finds "excessive and unreasonable" post-trial delay where the CA acted 143 days after trial. United States v. Lind, __ M.J. ___, No. 1228 (C.G. Ct. Crim. App. 31 Jan. 2007). As a result of this delay, as well as post-trial IAC, the Coast Guard Court set aside the bust from E-3 to E-1, four months of confinement, and four months of forfeitures. Is the Coast Guard post-trial delay fairy leaving more under the pillow than the Navy-Marine Corps, Army, and Air Force fairies?

--Dwight Sullivan

New published CGCCA Pierce credit case

The Coast Guard Court has issued a decision emphasizing the important of military judges carefully explaining on the record how they are crediting the accused for a prior NJP dealing with the same misconduct for which the accused was convicted at court-martial. The military judge whose explanation the Coast Guard Court found unsatisfactory? Judge Judge.

United States v. Gormley, __ M.J. ___, No. 1230 (C.G. Ct. Crim. App. 31 Jan. 2007).

Naval Academy Quarterback Case Featured on WJZ 13

In MilJus related news coverage, the story of the former Naval Academy quarterback acquitted at a 2006 court-martial, but convicted on conduct offenses and receiving no punishment, will be featured on tonight's 11 pm news on Baltimore's WJZ TV news. Here is a link to the preview of the story (page 2 of the video previews). According to the preview, the case is still winding its way through the post-trial review and administrative process. In light of the "no punishment" finding the case is likely in the shrouded in mystery Art. 69 review process.

A review of the JAGs' annual reports for FY 1997 to FY 2005 (all that are available on CAAF's website) shows that the Navy-Marine Corps has a disproportionately high number of Art. 69 review cases (Navy 175; Army 90) and a lower than average rate of relief granted (Navy 3.4% (and none in last 5 years); Army 5.5%). Considering that the Navy-Marine Corps system only has 20% more General/Special courts martial than the Army, the almost 100% difference in Art. 69 review numbers seems perplexing. Anyone have a theory . . . other than Guert's engine for military justice theory?

Annual Manual?

As Dennis Miller might say, now I don't want to get off on a rant here, but why are we continuing to use a Manual for Courts-Martial that has been out of date for well more than a year? (Actually, it was already out of date when it was published. More on that below.)

When DOD switched from the three-ring binder version of the 1984 Manual to complete reprints, the expectation was that a new Manual would come out with each Executive Order amending the Manual. A 1994 Army Lawyer article explained: "Change 6 and recent legislative (UCMJ) changes have been incorporated into the Manual scheduled for publication in 1994. The reprinted Manual will be a single, soft-bound volume and will be republished annually or as changes are required." Lieutenant Colonel Eugene R. Milhizer & Lieutenant Colonel Thomas W. McShane, Analysis of Change 6 to the 1984 Manual for Courts-Martial, Army Law., May 1994, at 40, 47.

Things sure haven't worked out that way. Only six soft-bound Manuals have been issued: 1994, 1995, 1998, 2000, 2002, and 2005. Consider what is not in the current Manual: the 2005 Amendments to the Manual for Courts-Martial, published on 18 October 2005, 70 Fed. Reg. 60,697; the UCMJ amendments made by the FY 2006 DOD Authorization Act, Pub L. No. 109-163; and the UCMJ amendments made by the FY 2007 DOD Authorization Act, Pub. L. No. 109-364.

Maybe the concept of publishing an entire new Manual and throwing away the old one is dated. Maybe it was a bad idea even in 1994 when it was originally hatched. But many years ago Al Gore invented this wonderful new device called the Internet. You know, that thing that allows me to post this rant and allows you to read it. Can't DOD at least post an annual updated version of the MCM, even if it doesn't want to devote the expense and cause the deforestation necessary to print it?

Oh, and maybe the online version of the MCM could include UCMJ article 25a, which Congress adopted in 2001, Pub. L. No. 107-107, but which was omitted from both the 2002 and 2005 editions of the Manual.

Of course, that's just my opinion. I could be wrong.

--Dwight Sullivan

Haditha Case is . . . A Mess?

If you haven't been following the case of four Marines accused of murder in Haditha, Iraq, the vicissitudes of the pre-trial process will amaze you. First, the government's star witness was convicted of theft when, last year, he stole a vehicle and crashed it in his home town. Now the same star witness, according to one news story, is facing charges of rape at Camp Pendleton. Additionally, someone within DoD leaked part of the investigative file on the Haditha killings and defense attorneys are raising a stink. The CG of 1 MEF, Lt. Gen. James "Mad Dog" Mattis, has ordered an investigation into the leak.

Too good to be true?

Let's return to People Magazine mode for a moment. (Actually, this story might not even rise to People's level of gravitas.) There is a story going around about a Project Outreach argument. I would love to know whether it's true. Can someone with prescient knowledge confirm or deny this tale? I'm not a big fan of Project Outreach, but I'm willing to reconsider my position and become the program's biggest fan if this actually happened.

The story has it that CAAF was scheduled to hear a Project Outreach argument at a civilian law school. CAAF chose to hear some meaty issue in a case with an unusual name. Lo and behold, it turned out that there was a student at that law school with that very name. Unfortunately for the student, the law school administration quickly realized that the student had failed to mention his court-martial conviction when he had applied to and been accepted by that institution of higher education. CAAF, so the story goes, has now decided to hear a different case at that law school. The fate of the original appellant remains uncertain, though regardless of whether CAAF affirms or reverses his conviction, obtaining a J.D. -- much less a license to practice law -- doesn't appear to be in his future.

True or false?

--Dwight Sullivan

Supreme Court update

The Christian cert petition, originally filed pro se IFP, has now secured the assistance of counsel, with David Sheldon as lead counsel on Christian's reply brief, which was filed 31 January. The Supreme Court has scheduled Christian for the 16 February conference, during which the Court will also consider the Lovett cert petition.

The SG's response is due in New, the collateral attack on a court-martial conviction, by 21 February.

The SG is quickly running out of time to file a cert petition in either Lane or Long. In both cases, a cert petition would be due this coming Monday. The SG has sought cert in eight cases since last Term ended on 29 June 2006 -- none of them from the military justice system. (Each of the cert petitions is available here.) The Supremes have granted cert in four and four remain pending. (The Supremes acted on another four SG cert petitions this Term, but those were all filed last Term. One was granted, two resulted in GVRs and one was, gasp, denied!)

--Dwight Sullivan

CAAF Recap

So far this week, CAAF has announced five opinions. These cases capped off a remarkably productive start of the 2007 term. CAAF issued more opinions from October to January this term than in any other comparable period starting in 1997, the first term for which the court's opinions are available on its web site.

This term has also been characterized by remarkable unanimity. During no other term for which opinions are available on the CAAF web site did the court decide its first 18 cases without a single separate opinion. Of course, it is both mathematically and practically easier to reach unanimity with three judges than five. Perhaps we should refer to the first four months of this term as "The Era of Three-Part Harmony."

Thus far Chief Judge Effron has authored six opinions, Judge Erdmann has authored six, Judge Baker has authored five, and the court has issued one per curiam opinion.

Other than the one case set for reargument, only two cases argued in October and November have yet to be decided. The first is Gutierrez, No. 06-5005/AR, a case in which The Judge Advocate General of the Army certified the rather unhelpfully worded issue of "Whether the United States Army Court of Criminal Appeals erred in holding that the trial defense counsel did not affirmatively waive an affirmative defense instruction with respect to a lesser-included offense." It was argued on 14 November.

The second November case remaining to be decided is Wise, No. 06-0610/AR. Wise presents an unusually interesting issue: "Whether Appellant's confinement conditions, including and in particular with respect to his claim of having been confined with Enemy Prisoners of War in Iraq, were unlawful, and whether, in the context presented, Appellant forfeited his claims of unlawful post-trial confinement by failing to exhaust his administrative remedies under United States v. White, 54 M.J. 469 (C.A.A.F. 2001)." Wise was argued 28 November.

CAAF heard three cases on 28 November. Chief Judge Effron has written the opinion of the court in one (Green) and Judge Erdmann has written the opinion of the court in another (Carruthers). So I expect to see Judge Baker as the author judge in Wise. Judge Baker's national security background would also seem to make him a logical candidate for assignment as the Wise author judge.

CAAF heard four cases the week of 14 November. Chief Judge Effron has written for the court in one (Perez), while Judge Erdmann wrote for the court in another (Brooks). Judge Baker has not yet written an opinion of the court for a case argued that week. But one case from that week (Moran) will be reargued. CAAF didn't announce that reargument until 10 January, so it appears that Moran was probably assigned to a judge at the conference for the 14 November arguments. If Judge Baker was originally assigned as the author judge in Moran, then each judge would have had one opinion from that week and one of the judges would have received a second with Gutierrez. So while Judge Baker is not the author judge of any opinion released yet from the week of 14 November, it doesn't seem safe to assume that he will be the author judge in Gutierrez.

--Dwight Sullivan

New published ACCA decision

ACCA yesterday released a lengthy published opinion in an Article 62 appeal. United States v. Jones, No. ARMY MISC 20060858 (A. Ct. Crim. App. 31 Jan. 2007). The opinion reverses the military judge's ruling excluding in-court testimony of Jones' marijuana importation co-conspirator that he ruled was the fruit of an unconstitutional search and seizure.

Subject Matter Days at CAAF

I like CAAF's new trend of releasing two oinions on the same subject matter on the same day. Jan. 25th was Members' Challenges Day (with a side order of sentencing evidence), Tuesday was Human Lie Detector Day, and Wednesday was Confrontation Clause Day. Maybe tomorrow can be Meaningful Relief For Post-Trial Delay Day (MRFPTD Day)? Unfortunatley for those accused languishing on appellate review, that includes you QM1 Forbes, I think both CAAF and the CCAs believe MRFPTD Day is celebrated on Feb. 30th.

Two new CAAF opinions

Two new opinions were posted on CAAF's web site last night:

United States v. Rankin, No. 06-0119/NA, and United States v. Carruthers, No. 06-0050/AR, both dated Jan. 31, 2007.