Another new published NMCCA opinion

Today's February NMCCA case dump onto Navy Knowledge Online included not only Parker and Gallagher, both from yesterday, but also the Edwards opinion from last week. United States v. Edwards, __ M.J. ___, No. NMCCA 200600836 (N-M. Ct. Crim. App. 21 Feb. 2007). The case involves a providence inquiry issue, a multiplicity/unreasonable multiplication of charges issue, and a reverse Ohrt issue. The Air Force Court once memorably complained that an appellant "invites us to descend with him into that inner circle of the Inferno where the damned endlessly debate multiplicity for sentencing." United States v. Barnard, 32 M.J. 530, 537 (A.F.C.M.R. 1990). As Edwards makes clear, there is yet another inner circle: where the damned debate not only multiplicity, but also sufficiency of the providence inquiry and the flip side of Ohrt.

The most significant portion of the Edwards opinion holds that the military judge erred by limiting the defense's ability to elicit opinion evidence concerning the accused's rehabilitative potential. Now for the strange part. NMCCA bases its holding of error largely on United States v. Griggs, 61 M.J. 402 (C.A.A.F. 2005). Judge Baker wrote for the majority in Griggs, joined by Chief Judge Gierke and Judges Effron and Erdmann. Please note that the author judge remains on the court and judges who joined the Griggs majority remain a majority on CAAF. Judge Crawford concurred in part and dissented in part. Judge Baker's opinion for the court set out this standard for assessing prejudice:

We test the erroneous admission or exclusion of evidence during the sentencing portion of a court-martial to determine if the error substantially influenced the adjudged sentence. See United States v. Boyd, 55 M.J. 217, 221 (C.A.A.F. 2001) (citing Kotteakos v. United States, 328 U.S. 750, 765, 90 L. Ed. 1557, 66 S. Ct. 1239 (1946)). If so, then the result is material prejudice to Appellant's substantial rights. Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2000).

United States v. Griggs, 61 M.J. 402, 410 (C.A.A.F. 2005).

Judge Crawford's separate opinion stated, in part, "Rather than relying on United States v. Boyd, 55 M.J. 217 (C.A.A.F. 2001), which examined sentencing instructions for prejudice and addressed no evidentiary issues, I would apply this Court's logic from United States v. Saferite, 59 M.J. 270, 274-75 (C.A.A.F. 2004)."

United States v. Griggs, 61 M.J. 402, 413 (C.A.A.F. 2005) (Crawford, J., concurring in part/dissenting in part).

Got that? The Griggs majority applied Boyd. The dissent applied Saferite in lieu of Boyd. Yet in Edwards, NMCCA wrote, "We elect to apply the Saferite factors suggested by Judge Crawford in her dissent because they provide a more thorough framework for determining whether the error influenced the adjudged sentence. We share her reluctance to apply United States v. Boyd, 55 M.J. 217 (C.A.A.F. 2001) . . . ." Edwards, No. NMCCA 200600836, slip op. at 6 n.2. As CAAF has reminded the CCAs many times before, and as Judge Baker and his colleagues may soon have the chance to remind NMCCA again, it isn't NMCCA's prerogative to decline to apply a CAAF majority opinion. See, e.g., United States v. Kelly, 45 M.J. 259 (C.A.A.F. 1996) (smacking NMCCA for preemptively overruling Booker); United States v. Allbery, 44 M.J. 226, 227 (C.A.A.F. 1996) (reminding AFCCA that it "is not generally free to ignore our precedent"). You would think military appellate judges would get that whole duty to follow superiors thing. And NMCCA rubbed the Griggs majority's nose in it, twice referring to following Judge Crawford's dissent. (Oddly enough, on the following page of the Edwards opinion, NMCCA cites Griggs citing Boyd, after telling us on the previous page that it was applying Saferite instead.) Anyone care to predict the shelf life of that portion of the Edwards opinion?