Troubling new ACCA decision

ACCA released a lengthy published opinion today. United States v. Axelson, __ M.J. ___, No. ARMY 20020193 (A. Ct. Crim. App. Apr. 30, 2007).

The outcome in Axelson is harmless enough: nothing in the providence inquiry or subsequent case on the merits required the military judge to inquire into a potential defense and the military judge properly instructed the members that Major Axelson's plea to aggravated assault established the common elements for the charged greater offense of attempted premeditated murder.

But ACCA strayed further than it had to and unnecessarily injected a troubling holding into the opinion. ACCA imposed a limitation on the military judge's duty to inquire into a potential affirmative defense that might negate a guilty plea:

[W]e hold a military judge’s responsibilities regarding affirmative defenses are limited to those listed in Rules for Courts-Martial [hereinafter R.C.M.] 916 ("Defenses") and 920 ("Instructions on Findings"), and to those recognized by this court and our superior courts. These responsibilities apply to guilty plea inquiries and to instructions in contested cases.

Axelson, slip op. at 2.

Thirty pages later, ACCA reiterates:

We hold a military judge's responsibilities regarding affirmative defenses, in both guilty plea and contested cases, are limited to those listed in R.C.M. 916 and 920, and to those recognized by this court and our superior courts.

Id., slip op. at 32.

This standard carries the danger of freezing the law in place. It is reminiscent of the problem that historically plagued the law of qualified immunity until the Supreme Court made clear that the first step in a qualified analysis is to assess whether the public official violated a constitutional right. See generally Saucier v. Katz, 533 U.S. 194, 201 (2001). As the Court explained in Saucier, "one reason for our insisting upon turning to the existence or nonexistence of a constitutional right as the first inquiry" is to provide "for the law's elaboration from case to case." Id. This allows the courts to establish constitutional rights that can then be applied in future cases. The Axelson approach, on the other hand, would seem to prevent any such "elaboration from case to case." If an appellate defense counsel complains that the military judge failed to inquire into a potential defense, it would be a showstopper for the appellate court to simply say, "That potential appellate defense has never been recognized by a military appellate court." Judicial recognition of a new affirmative defense becomes virtually impossible -- especially since ACCA adopts the same limitation on challenges to a military judge's instructions in a contested case.

For now, this unduly cramped holding affects only the Army. Because this new rule about new affirmative defenses was so obviously unnecessary to the case's outcome, it seems unlikely that Axelson will be granted by CAAF because striking down ACCA's unwise new standard would do nothing to affect either party and CAAF has traditionally weighed potential prejudice heavily in deciding which cases to grant. Army TDS counsel should aggressively plant potential new affirmative defenses into their cases for trial judges to reject and Army DAD counsel should aggressively push such issues up to CAAF. Once CAAF does squarely confront the Axeslon new rule, it should firmly reject it.

All good things come to those who wait 64 days

The next CAAF daily journal update will have at least two -- count 'em, two! -- grants. Both are Army cases in which CAAF granted review and ordered briefs on Friday.

One is Medina, No. 07-0096/AR, in which the granted issue is:

WHETHER THE ACTION OF THE COURT OF CRIMINAL APPEALS IN AMENDING SPECIFICATIONS 2 AND 3 OF CHARGE I FROM VIOLATIONS OF ARTICLE 134, UCMJ, CLAUSE 3 (CRIMES AND OFFENSES NOT CAPITAL) TO VIOLATIONS OF ARTICLE 134, UCMJ, CLAUSE 2 (SERVICE DISCREDITING CONDUCT) ADDS AN ELEMENT TO THE OFFENSES IN CONTRAVENTION OF APPRENDI v. NEW JERSEY, 530 U.S. 466 (2000), JONES v. UNITED STATES, 526 U.S. 227 (1999), AND SCHMUCK v. UNITED STATES, 489 U.S. 705 (1989).

The other is Parrish, in which the granted issue is:

WHETHER THE ARMY COURT OF CRIMINAL APPEALS PROPERLY EXERCISED ITS FACTFINDING POWER UNDER ARTICLE 66(c), UCMJ, IN RESOLVING THE QUESTION OF WHETHER THE GOVERNMENT VIOLATED A MATERIAL TERM OF APPELLANT'S PRETRIAL AGREEMENT DESPITE CONFLICTING AFFIDAVITS.

The drought is finally over. No one will be more appeased than the No Man -- the drought was ended with an Apprendi issue, no less!

Counter update

CAAF's daily journal is now current as of Thursday, 26 April. The most recent posted grant-and-brief remains United States v. Othuru, __ M.J. ___, No. 06-0768/NA (C.A.A.F. Feb. 22, 2007). Sixty-three calendar days have passed between that grant and the most recent CAAF update. During that time, CAAF has denied 123 petitions for grant of review.

SCOTUS shutout

There don't appear to be any pending cert petitions seeking review of a CAAF decision. The Supremes' October 2006 Term certainly will be another military justice free year.

Which do you want first, the good news or the bad news?

The good news is that the NMCCA public web site has posted a rare intra-month update to its opinion page. BZ, Navy-Marine Corps Court!

But the bad news appears to be worse than the good news is good. When I tried to log onto the Coast Guard Court's web page, I was asked for a user name and password. That has never happened to me before. And since I don't have a Coast Guard user name or password, I was unable to check for new Coast Guard Court opinions. Does anyone know what's going on and whether there is a workaround?

Paxton: Nothing New

While I commented earlier that Judge Erdmann's opinion in Paxton (joined by Stucky, Ryan and Baker) is another well organized opinion, once you get beyond the readability you see that Paxton doesn't break any new ground. The issues were 1) did the trial counsel comment on the accused's choice to plead not guilty and remain silent at trial, 2) ineffective assistance of counsel, and 3) an unreasonable multiplication and multiplicity question concerning rape and indecent acts.

Judge Effron dissented regarding the trial counsel's comment on the accused's rights, as he has been known to do in government argument cases (see e.g. Baer, concurring but finding error). I was a little surprised that Judge Baker did not write a concurrence, he is usually very critical of government argument and holds their feet to the fire on these issues. But, in my humble opinion, this one was not close. As Judge Erdmann pointed out, the defense presented evidence from a clinical psychologist. Judge Erdmann quoted his testimony that gave the TC plenty of room to argue that the accused had never admitted he had a problem, even to his doctor,

On cross-examination, Dr. Stone testified that Paxton’s test results showed, among other things, that Paxton had an inability or unwillingness to disclose personal information, that he engaged in “impression management” to present himself more favorably, that he believed other people were largely responsible for his problems, and that he has a lack of initiative and an avoidance of adult forms of autonomy.

Paxton, slip op. at 4.

Long shot misses the target

Not surprisingly, the application to Chief Justice Roberts in the Morton case, which we previously discussed here, has been denied.

No. 06A987
Title: In Re Thomas A. Morton, Applicant
v.


Docketed:
Lower Ct: United States Court of Appeals for the Armed Forces
Case Nos.: (07-8009/CG)

~~~Date~~~ ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Apr 19 2007 Application (06A987) for a stay pending the filing and disposition of a petition for an extraordinary writ of mandamus or prohibition, submitted to The Chief Justice.
Apr 23 2007 Application (06A987) denied by The Chief Justice.

I'm TAD the next couple of days. Do you think CAAF might actually grant a petition while I'm gone?

Amicus Granted for writ appeal

CAAF yesterday posted its 24 April order allowing the National Association of Criminal Defense Lawyers to file as Amicus Curiae on this writ appeal:

Misc. No. 07-8012/NA. Jacob DENEDO, Appellant v. United States, Appellee. CCA 99-00680. Notice is hereby given that a writ-appeal petition for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals on application for extraordinary relief in the nature of a writ of error coram nobis was filed under Rule 27(b) on March 29, 2007, and placed on the docket this 30th day of March, 2007.

Anybody out there have any details on the issues involved?

The counter

Two more grant-and-briefless days were added to the CAAF daily journal on Wednesday. That brings the streak to 59 days.

Oral Argument in United States v. Wilson

Yesterday's oral argument in Wilson, a short one regarding the meaning of a CA's action, reminded me of why arguments are so much fun. Taking a relatively boring issue, Maj Rick Belliss did his best to spice it up. The argument was about whether the NMCCA erred by affirming a dishonorable discharge that the CA had not clearly approved or disapproved. Maj Belliss started out with an analogy regarding the different meanings of football to different cultures, arguing that the specific words mean different things to individual subsets of people. He linked this up by arguing in the military justice world, you approve a sentence by saying you approve it. And if you don't say it, you didn't do it.

Judge Ryan asks the first question. She starts off with, "can I ask a couple of questions?" Deadpan, Maj Belliss replies, "absolutely."

There was a very interesting exchange regarding an affidavit by the CA explaining himself. Judge Stucky asked Maj Belliss about the affidavit. But back on 1 Feb 2007, CAAF denied the government's motion to attach an affidavit. As Maj Belliss started to respond, Judge Baker jumped in asking if the affidavit was even before them. CJ Effron then jumped in with an unrelated question.

The argument was a great example of every case can be interesting and counsel should never shortchange an argument. BZ to Maj Belliss in what I believe is his first oral argument.

Two more cases

CAAF decided two more cases, Wise and Shaw yesterday. (By the way Bill, 4 is not the record for a single day, on 30 Sep 2005 for instance, CAAF decided 6 cases and I suspect that CAAF has done more on previous end-of-term days).

United States v. Wise looked at the very interesting question of confining a Soldier with enemy prisoners of war (EPWs). Judge Baker in his majority opinion gets to the bottom line quickly; Appellant did not waive his claims despite his failure to exhaust administrative remedies. But his claim that he was confined with EPWs in violation of Article 12, UCMJ fails and his claim that he was placed in irons in violation of Article 55, UCMJ needs more information, so case was sent back to ACCA for further fact finding or a DuBay hearing.

The decision is a gem. It is particularly fun for anybody interested in how CAAF uses legislative history. Appellant was confined in a confinement area known as the "cage" in Tikrit, Iraq, within 15 feet of EPWs. He was in an area separated from the EPWs by concertina wire. Judge Baker's opinion looked at the exact nature of concertina wire in determining that Appellant was not confined in "immediate association" with EPWs, therefore there was no Article 12 violation.

While looking at the legislative history, Judge Baker drops a few great lines. Such as during World War II there were two million courts-martial.

Regarding Appellant's claim that he was unnecessarily kept in irons, CAAF decided it just didn't have enough facts, so it set the case back to ACCA to develop those facts.

CJ Effron dissents on the exhaustion issue. He points out that Appellant didn't file an Article 138 complaint, didn't raise the issue in his clemency matters, and it wasn't raised in his defense counsel's 1106 matters. The most interesting part of the dissent is CJ Effron's suggestion, citing Jones v. Bock, 127 S. Ct. 910 (2007), that perhaps the government should bear the burden of showing a failure to exhaust remedies instead of the appellant proving he did exhaust.

Palenius's Platitude

Today I reviewed United States v. Palenius, 2 M.J. 86 (CMA 1977), attempting to view a slow-motion replay of that special moment in the relay-race when appellate defense counsel takes the baton from the trial defense counsel. I presumed that trial defense counsel was effectively (and legally) "relieved" and his/her representational duties terminated upon the proper designation of appellate defense counsel. I may be wrong. Palenius says that the original trial defense attorney must make "an application" with the judge or court then having jurisdiction over the case "to be relieved of the duty of further representation of the convicted accused."

Uhhh...does anybody do this? (Please forward the form letter if you do)

Since CCA only has the budget for a "denied" stamp, I have never heard of such "applications" for relief being submitted, nevermind granted. Is the entire military justice world just ignoring this Palenius command? I doubt that, too.

Two Palenius' problems. First, what if the government does not want the trial counsel to be "relieved"? Second, what if the trial defense counsel does not want to be "relieved"? Palenius simply assumes that clients are a pain-in-the-ass and that any self-respecting lawyer would want to quit as soon as possible. This need not be true.

The trial world stands on one tectonic plate. The appellate world stands on another. At times, these tectonic plates abut without incident, sometimes they separate and cause gaps, and at other times, these two worlds collide.

Does anybody know of an instruction, regulation, rule, or a case that obviates the apparent "application for relief" rule in Palenius?

Three New CAAF Decisions

Almost like Boston Red Sox home-runs, CAAF knocked off three consecutive decisions today (one short of the four-consecutive record). Although the decisions were not at as awe-inspiring as a Ramirez, Drew, Lowell, Veritek combo:

Davis was a complete disappointment...at least not worth a 57-day wait. First, the holding was narrow. The court held that the erroneous partial closure of Davis' Article 32 investigation, where 2 female rape victims would testify in a closed-session, despite not appearing to request or to need such gratuitious and patriarchal protections, was harmless. CAAF avoided the big question of whether there is a right to an open Article 32, UCMJ, investigation under the Sixth Amendment. (But, in fairness to CAAF, that issue was not centrally litigated below). Second, perhaps because the new Court decided to trade unanimity for clarity, the reasoning was mushy and obscure. It winked and nodded at CCA's decision, but did not highlight or publish anything worthwhile from the lower court. Third, CAAF balked on publishing a useful rule on the real underlying issue: whether the error was of constitutional or nonconstitutional dimension. Nor did it publish a methodology to make such determinations. Finally, CAAF expressed no interest in marching into the Article 32 jungle with its supervisory machete. It seems like the general rule of military jurisprudence is that Article 32's will continue to be ruled by the law of the jungle; the savannah where the rule of law governs must wait until the court-martial.

Judge Ryan issued a mild spanking to the lower court for perhaps overstating the protections of the Sixth Amendment. The issue of whether or not there is a right to an open Article 32, UCMJ, investigation under the Sixth Amendment, remains "neither open nor closed." (?)

In Beatty, possibly based on Beatty's delight in reading the Kinsey reports or in seeing the movie, and his willingness to stand-tall to express himself, "Appellant called [the child 'victim'] into his bedroom and masturbated in front of her while he checked her homework." Now that is what I call multi-tasking. Beatty also stated that the round, eight-inch item on the bed was a "perfume bottle," not a vibrator. Sorry about the misunderstanding, everybody. I guess that eight-inch perfume bottle contained quite a supply of perfume (and perhaps some confusion locating the pump and the spray).

CAAF briefly restates the law regarding what constitutes the “entire record”? A) For the review of findings -- of guilt and innocence -- the "entrire record" is limited to the evidence presented at trial. B) For sentence appropriateness, the “entire record” includes not only evidence admitted at trial, but also the matters considered by the convening authority in his
action on the sentence.

CAAF determined that CCA may have improperly assessed the issue of a child victim's credibility based on her testimony in pretrial motion practice or in presentencing.

While CAAF imputed no intent to engage in “fundamental unfairness” or to rely upon “off-limits” tactics to the Court of Criminal Appeals, it nonetheless found that CCA's assessment of the child victim's credibility for purposes of determining the factual and legal sufficiency of the evidence was at best, "ambiguous." It remanded the case. Now, CCA can unambiguously affirm Beatty's guilt.

In Flores, CAAF held that an accused has no privacy interest in voluntarily abandoned
property, and therefore Flores lacked standing to complain of the search or seizure of such property. He lost because he lacked standing to challenge the legality of the Government’s search.

In Flores, severl thousand dollars in ATM cash was missing the morning Marine Corps recruits were graduating from boot camp. The commanding officer, exercising the common instincts of military people everywhere, who unfortunately tend to view military bases as "fourth-amendment-free zones," ordered all recruit bags to be placed under guard and searched. Flores, apparently, did the old "switcharoo," switching bags with another recruit.

The big question was timing: when did Flores switch his bag? Before or after the illegal search was ordered? (Or perhaps: why was Flores so generous in giving another Marine so much cash, his uniforms, his mail, and even pictures of his family?)

A close-reading of the case reveals that this was a winnable suppression issue by the defense and has CAAF providing straightforward motion-tips for the defense bar: "the record is silent as to when they learned that their belongings would be searched." And: "The motion hearing provided the military judge with scant evidence on the question of whether Appellant abandoned his clothing bag voluntarily or in response to the knowledge of the imminent search." Finally, "The only direct evidence concerning when the bags were switched is the drill instructor’s testimony that Recruit S said he thought the bags were switched when the Marines returned to their gear after graduation. The defense did not object to the drill instructor’s hearsay testimony. Appellant could have testified regarding the circumstances of the search, including the issue of voluntary abandonment, without incriminating himself on the charged offenses."

In any event, although CAAF's holding may produce the right result for this case, it seems like bad property law and bad fourth-amendment law. Does this case really present a multiple-choice exam in which the only two options are: a) ownership, or b) abandonment? Don't you remember from (personal) property law concepts like custodianship, bailment, etc...people reclaiming treasures after years? Now, one can't reclaim a bag after a few minutes? Maybe the rest of you find this to be a pretty straightforward and uncontroversial decision, but I believe there are some terribly shaky (and latent) assumptions lurking behind this decision that CAAF did not unpeel. I think the intended ruling is something akin to a "bad-faith" exception to claims of privacy protection by accuseds, but hidden in the guise of vague property law principles.

CAAF doesn't take petitions for granted

The Supremes might have spurned the New cert petition, but at least they granted review of something. CAAF, on the other hand, added two more grant-and-reviewless days to its daily docket. That brings the streak to 57 days -- meaning CAAF just passed some sort of mirror image of DiMaggio's 56 consecutive game hitting record.

Supremes deny cert in New

Today's Order List includes the denial of cert in United States, ex rel. New v. Gates, No. 06-691.

Courtesy of SCOTUSblog, here's what the Supremes thought was more important:

The Supreme Court agreed on Monday to clarify the scope of the main federal money laundering law. It will spell out whether the ban on use of "proceeds" of a crime to promote or conceal it -- that is, "laundering" the proceeds -- applies to the total amount of money, or only the profits, if any, that remain after expenses. The Seventh Circuit, in conflict with other Circuit Courts, has ruled that, if there were no profits, the law does not apply. The case is U.S. v. Santos (06-1005, petition), involving a federal prosecution for using money from an illegal lottery in Indiana to pay runners, collectors and winners of the betting.

Ah, nothing like being reminded that I inhabit a benighted backwater of the law.

The counter

Today's CAAF daily journal update apparently got rained out, so we're still at 55.

Barry Bonds singled in the first tonight, so at the moment he's still at 4 homers for the season. Of course, if A-Rod continues at his current pace, he'll break Aaron's record before Bonds does. (Mathematically, that assertion isn't actually true, but 12 homers in 15 games is a prodigious pace. If he continued at this rate, A-Rod would hit 129.6 homers this season. But even if we round that six-tenths of a homer up, that would still leave him with just 594 homers.)

Long shot

I recently saw the movie Shooter. I liked it -- though before you plunk down $8 a ticket on my recommendation, you should know that my taste in movies runs toward "testosterone driven" rather than "artistically inspired." And the hero is a Marine Corps gunny.

The movie is centered around a sniper shot fired a mile from its target. But that's point-blank-range compared to the long shot that showed up on the Supremes' docket today.

If you are still reading this, you probably haven't simply stumbled across this blog while doing a google search for the Rotten Tomatoes gouge on Shooter (48%, by the way). And if you are still reading this, you probably remember our recent discussion about the USCG's inexplicable policy of not allowing Article 32 proceedings to be recorded. (At some other point in the near future I shall rant about military investigation agencies' refusal to record their interrogations.) CAAF denied a writ challenging the USCG Article 32 anti-recording practice, over Judge Erdmann's cogent dissent. United States v. Morton, __ M.J. ___, Misc. No. 07-8009/CG (C.A.A.F. April 4, 2007).

But as much as I think Judge Erdmann was right, seeking further review from the Supreme Court seems like a long shot that even Bob Lee Swagger, Shooter's unlikely named protagonist, wouldn't attempt. Yet that is just what Morton's counsel did. Here is the latest military justice addition to the SCOTUS docket:

No. 06A987
Title: In Re Thomas A. Morton, Applicant
v.


Docketed:
Lower Ct: United States Court of Appeals for the Armed Forces
Case Nos.: (07-8009/CG)

~~~Date~~~ ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Apr 19 2007 Application (06A987) for a stay pending the filing and disposition of a petition for an extraordinary writ of mandamus or prohibition, submitted to The Chief Justice.

I'm a bit surprised that the denial wasn't posted in conjunction with the application. But we'll keep it in our sights -- just like that Dinty Moore Stew can out in Bob Lee Swagger's woods.

New published CGCCA decision

The Coast Guard Court issued a new published opinion today. United States v. Schiewe, __ M.J. ___, No. 1253 (C.G. Ct. Crim. App. 20 April 2007).

The court set aside a finding of guilty to a wrongful appropriation offense, finding that the providence inquiry did not establish Petty Officer Schiewe's guilt. Schiewe "was convicted of wrongful appropriation of various items of military property from his unit, Coast Guard Cutter FIR, having a total value of about $2,419." Schiewe, slip op. at 3. During the providence inquiry, Schiewe said he took the items home to refashion them into useful items for his ship. In his providence inquiry, Schiewe portrayed himself as something of a nautical Martha Stewart. And, oddly enough, just like Martha he was sentenced to five months in the slammer. (I swear I wrote the Martha Stewart analogy before I looked up the length of her sentence and discovered it was the same as Schiewe's. Of course, to Martha Stewart, "Big Chicken Dinner" means a large, well-cooked fowl accompanied by acorn squash dressing -- to Schiewe, it meant a punitive discharge.) But unlike Martha, Schiewe has prevailed on appeal.

The Coast Guard Court held that merely taking items from the ship without permission is not an Article 121 offense if the borrower believes that the property owner would have consented to the action. The Coast Guard Court held, "In this case, Appellant’s explanation that he believed he was entitled to remove the items from the ship based on his restricted work schedule and his previous history of working on Coast Guard projects at home was sufficient to raise the mistake of fact defense." Id. at 6. The military judge failed to inquire into this potential defense, thus requiring that the finding of guilty to the wrongful appropriation charge be set aside.

Kudos to the Coast Guard Court for not applying Sales to affirm the sentence despite setting aside one of the three specifications of which he was convicted.

The numbers climb like the Dow Jones Industrial Average

Barry Bonds sat out this afternoon's game, but last night he hit his fourth homer of the year.

And today CAAF's daily docket added two more days without a grant-and-brief. Adding insult to injury, CAAF denied 31 petitions in the latest update. That brings the total number of petitions denied since the last grant-and-brief to 106, including one denial of a petition for review of a successful Article 62 appeal. United States v. Jones, __ M.J. ___, No. 07-6003/AR (C.A.A.F. Apr. 10, 2007). (As I've previously suggested, I don't believe CAAF has statutory authority to grant a petition for review in such a procedural posture, though CAAF could grant a writ to review the CCA's opinion in the exercise of its potential appellate jurisdiction.)

Of course, it's possible that all 106 denials rejected issueless petitions. If, on the other hand, CAAF is going out of business, I call dibs on the CAAF library's military justice treatises when they go to DRMO.

New CAAFlog contributor

CAAFlog welcomes a new contributor on board, writing under the nom de plume Bill Buckner. An interesting move -- picking a nom de plume that makes you anathema to our entire New England readership (assuming CAAFlog has any readers outside of the Washington Beltway who aren't in Kabul, Sicily, or an Upstate New York graveyard).

Court-martial rate plummets

I hadn't really scrutinized CAAF's latest annual report until today. But, fortunately, Gene Fidell directed my attention to it. The report reflects an interesting trend: in FY 2006, the court-martial rate plummeted. In the Army, GCMs were down 9.2% from the previous year and BCD Specials were down 18.1% In the Department of the Navy (USMC and USN), GCMs were down a whopping 23% while SPCMs were down 19.3%. In the Air Force, GCMs were down 19.19% while SPCMs were down 11.99%. Only the Coast Guard reports an increase, indicating that its GCMs were up 42% and its SPCMs were up 31%. (Those numbers don't appear to withstand scrutiny. The FY 2005 report says the Coast Guard tried 7 GCMs and 45 SPCMs that year. The FY 2006 report says the Coast Guard tried 16 GCMs and 32 SPCMs. So it looks like GCMs actually increased by an astounding 229% while SPCMs decreased by 29%. Can anyone explain the apparent disconnect?)

Here are the total numbers, throwing out the 6 non-BCD specials that the Army tried in 2006. (Those appear to be the only non-BCD specials tried by the entire U.S. military over a two-year period.)

----------GCMs--------SPCMs
2005-----1,613--------2,949

2006-----1,385--------2,359

Does anyone have a theory to explain such a sharp decline in the court-martial rate?

The counter

With today's daily journal update, 53 days and counting.

(Still 3 homers for Barry Bonds. The Giants play the Cardinals later tonight.)

MCM Changes

Today the President promulgated the revisions to the Manual for Courts-Martial that the Joint Services Committee proposed in 2004. The revisions amend several RCMs to authorize testimony by remote means in some instances. The revisions also authorize the services to permit Article 39(a) sessions by videoteleconferencing. The President also revised Part IV of the Manual to reflect the recently enacted UCMJ amendments creating the new court-martial offenses of killing an unborn child and stalking, and to further clarify the applicable drunk driving standards.

The changes take effect in 30 days.

Maybe now DOD will issue a revised MCM.

UCMJ Jurisdiction over Government Contractors

Regarding a topic previously discussed in Caaflog, the cover story in the Washington Post on Sunday, April 15, 2007, contained a story by Steve Fainaru, "Four Hired Guns in an Armored Truck, Bullets Flying, and a Pickup and a Taxi Brought to a Halt. Who Did the Shooting and Why? A Chaotic Day On Baghdad's Airport Road," that included an interesting narrative about the "unresolved" (cf. ambiguous) jurisdiction of the UCMJ over government contractors. To wit:

The U.S. military has brought charges against dozens of soldiers and Marines in Iraq, including 64 servicemen linked to murders. Not a single case has been brought against a security contractor, and confusion is widespread among contractors and the military over what laws, if any, apply to their conduct. The Pentagon estimates that at least 20,000 security contractors work in Iraq, the size of an additional division.

Private contractors were granted immunity from the Iraqi legal process in 2004 by L. Paul Bremer, head of the Coalition Provisional Authority, the U.S. occupation government. More recently, the military and Congress have moved to establish guidelines for prosecuting contractors under U.S. law or the Uniform Code of Military Justice, but so far the issue remains unresolved.

Stuck on 50

The daily journal was apparently rained out today -- no update. So we're still stuck at 50 calendar days since the last granted petition with briefs ordered.

Oh, and JO'C -- no homer for Barry Bonds through his first two plate appearances tonight. He walked twice.

Hitting the half century mark

CAAF's daily journal tacked on two more days today. With today's additions, 50 calendar days have passed since CAAF has granted review of a case and ordered briefs.

(And, because I know JO'C is wondering, the Giants were rained out Saturday and Sunday, so Barry Bonds is still stuck at 3 homers.)

Diaz denied

Today's Supreme Court order list included the inevitable denial of cert in Diaz v. United States, No. 06-9977. Shall we start a pool on how long until he files a habeas petition with the federal district court in Kansas?

New v. Gates: certworthy?

As dedicated CAAFlog readers know, I have been suggesting that the cert petition in New v. Gates, which arises from a collateral review of a court-martial conviction, has a real shot at cert. The case will go to conference this Friday. But the thought occurs to me that I could be like some delusional American Idol contestant who thinks he sounds like John Lennon but actually sings like Lennon's voice when you spin your White Album in reverse searching for backmasks. While I am enthralled by New, it might have no appeal to non-military-justice devotees.

Today we have an important additional data point. And I'm afraid Simon Cowell is telling me that I sing like a cat in a vacuum cleaner. No, the bad news is actually that Tom Goldtein's Conference Call didn't pick New as one of Friday's cases to watch. While Goldstein et al. aren't infallible, this does suggest that I have been looking at the world through olive-drab-colored glasses. So the CAAFlog Magic 8 Ball has changed its prognosis for New from "Outlook good" to "Very doubtful." Oh well, at least one justice cared enough to ask the SG to reply to the cert petition.

Tune in next Monday to see what the justices decide on Friday.

And, by the way, I do sing like a cat in a vacuum cleaner.

Proposed CAAF Rules changes

The 11 April Federal Register includes a notice of proposed changes to CAAF's rules. 72 Fed. Reg. 18211. As modified by an amendment that will apparently be in Monday's Federal Register, the notice sets an 11 May deadline for comments.

The notice includes three proposed changes, but the upshot of all of them is to require the appellate defense counsel to file a joint appendix that will include the relevant portions of the record of trial.

The first proposal would amend Rule 24(a) by striking the requirement for specific page references in briefs' statement of facts. The second proposed amendment would add a requirement to include references to the appropriate portion of the joint appendix instead. The third proposed change would add a new Rule 24(f) requiring the appellant or petitioner to file 8 copies of a joint appendix, which will be a separate document filed contemporaneously with the brief. The joint appendix shall contain:

(1) the CCA's decision;
(2) copies of any unpublished opinions cited in the appellant's or petitioner's brief;
(3) relevant extracts of rules and regulations;
(4) relevant docket entries from the proceeding below;
(5) "relevant portions of the pleadings, charges, findings from the proceeding below" [there appears to be an "and" missing between "charges" and findings"]; and
(6) "other parts of the record of trial to which the parties wish to direct the Court's attention set out in chronological order."

The proposed rule also requires that the joint appendix "be bound in a manner that is secure and . . . will permit the contents to lie reasonably flat when open." This suggests a GBC binding style.

The proposed rule requires the appellate defense counsel to determine what portions of the record the appellate government counsel wants in the joint appendix and to include those portions in the joint appendix filed contemporaneously with the appellate defense counsel's brief. The proposed rule provides: "The parties are encouraged to agree on the contents of the Joint Appendix. In the absence of agreement, the appellant or petitioner must, within 10 days of the order granting the petition . . . serve on the appellee or respondent a designation of the issues to be raised on appeal and of the parts of the record to be included in the Joint Appendix. The appellee or respondent may, within 10 days after receiving the designation, serve on the appellant or petitioner a designation of the additional parts of the record to draw to the attention of the Court. The appellant or petitioner must include the parts designated by the appellee or respondent in the Joint Appendix."

The comments to the rule indicate that CAAF intends to phase the rule in over time, with the requirement for the Joint Appendix to include all of the relevant portions of the ROT not taking effect until 1 July 2008.

When I filed briefs with the 4th Circuit, I had to prepare a Joint Appendix similar to what is in this proposed rule and following procedures for consultation with opposition counsel similar to what is in this proposed rule. I suspect that the other circuits have similar requirements and that this rule will be familiar to anyone who has done federal appellate litigation. The comments accompanying the proposed rule changes explain that the changes are designed to ensure that every chamber has the relevant portions of the record of trial. I know from my experience working at CAAF that sharing one copy of the record of trial among five chambers is difficult, particularly as the judges prepare for oral argument. So I believe that this is a positive change to CAAF's rules. But this rule will impose a significant administrative burden on the various appellate defense divisions, who will have to enhance their administrative support to comply with this new requirement. (The comments suggest that is the reason for the phase-in period.)

Upcoming Code Committee meeting

Now that I'm back from some travel, I'm catching up on my Federal Register reading. This notice caught my eye:

This notice announces the forthcoming public meeting of the Code Committee established by Article 146(a), Uniform Code of Military Justice, 10 U.S.C. 946(a), to be held at the Courthouse of the United States Court of Appeals for the Armed Forces, 450 E Street, NW., Washington, DC 20442-0001, at 10 a.m. on Tuesday, May 15, 2007. The agenda for this meeting will include consideration of proposed changes to the Uniform Code of Military Justice and the Manual for Courts-Martial, United States, and other matters relating to the operation of the Uniform Code of Military Justice throughout the Armed Forces.

72 Fed. Reg. 14527 (March 28, 2007).

A similar announcement is on CAAF's web site.

That meeting will be the day before CAAF's judicial conference starts.

The Counter

Barry Bonds home runs this season: 3

CAAF petitions granted with briefs ordered 23 Feb - 11 April 2007: 0

Intriguing lecture

The Judge Advocates Association's American Inn of Court is hosting an intriguing lecture on 25 April at the U.S. Court of Appeals for the Federal Circuit. Chief Judge Effron will be speaking about "Using Historical Narratives to Enhance Your Litigation Skills."

The lecture is free, though attendance at the pre-lecture dinner costs $30. Here is a link for more info.

Two new published CCA opinions

ACCA issued an opinion today that might be captioned, "How to go from losing a stripe to a federal conviction and a BCD," or "SFC Williams' very bad decision." United States v. Williams, __ M.J. ___, No. ARMY 20040760 (A. Ct. Crim. App. 11 April 2007).

Williams is an extremely interesting case arising in Iraq. According to ACCA's presentation of the facts, SFC Williams was a very bad actor in the armed robbery of an Iraqi's POV, which was later offered up as tribute to his platoon leader. For his misdeeds, he was originally offered a summary court-martial, but there was apparently a disconnect between the prosecution's and defense's understanding of the particulars of the deal. Rather than doing whatever the government wanted in exchange for going to an SCM for armed robbery, Williams insisted on pleading not guilty at the summary. The result was that he got to plead not guilty at a GCM instead. Bad career move. The GCM convicted and kicked him.

The issue in Williams is whether the government withdrew the case from the SCM for an improper reason. ACCA's answer: not even close.

United States v. Fujiwara, __ M.J. ___, No. ACM 36124 (A.F. Ct. Crim. App. 11 April 2006), involves an Air Force captain convicted of, among many other bad acts, two rapes. The central issue on appeal is whether the government violated the RCM 707 120-day clock. In the first key subissue, the Air Force Court held that even if Capt Fujiwara's commander had directed that he not leave Valdosta, Georgia, that wouldn't be a sufficiently severe form of restraint to start the 120-day clock ticking. The Air Force Court also applied CAAF's decision in United States v. Lazauskas, 62 M.J. 39 (C.A.A.F. 2005), to hold that delay granted by the Article 32 IO was excluded from the 120-day clock.

What if they held a C.A.A.F. and nobody came?

As previously noted on this blog earlier this month, the C.A.A.F. has not granted review of a case since February 22, 2007, when it granted review of the sister/wife case of Othuru. If the Court continues granting petitions at this pace, it will hear roughly ten arguments next term. Having heard seventy-six cases last term, the Court is slated to hear roughly fifty arguments this term. Is the Court of Appeals for the Armed Forces following the Supreme Court in hearing fewer cases? Does this reflect the judicial philosophy of the Court's new Chief Judge? During the same period in 2006, the Court granted review of twelve cases. In 2005, the Court granted review of seventeen cases between February 22 and April 13. The Court granted review of only seven cases during the same period in the 2004 term. What explains the drastic drop in grants of review? Is it the change in the membership of the Court? Were some judges granting review only to later write dissenting opinions? Perhaps.

To paraphrase Lincoln, sometimes it is better to remain silent and be thought [guilty] than to speak and remove all [reasonable] doubt

As reported by today's Washington Post, a court-martial panel at the Washington Navy Yard convicted Midshipman Kenny Ray Morrison of indecently assaulting a female midshipman. The members found him not guilty of sexual offenses concerning another female midshipman. The Annapolis Capital's web site reports tonight that the members sentenced him to confinement for two years and a dismissal.

But here's what I find most interesting about the case. As this previous article from the Capital makes clear, Morrison took the stand but limited his testimony to one of the two alleged incidents. Interestingly enough, the members found him guilty of the offense about which he testified and not guilty of the offense about which he remained silent. This suggests that the members didn't treat his invocation of his Fifth Amendment rights as a de facto admission of guilt. It also suggests that perhaps his testimony wasn't very convincing.

Non-resource alert: Army Lawyer Jan. 2007 Ed.

The latest issue of Army Lawyer has the Army's CONTRACT AND FISCAL LAW DEVELOPMENTS OF 2006—THE YEAR IN REVIEW. Seeing how this is usually the issue I skip every year, I almost missed AL's ground breaking coverage of Congress's amendment to Art. 2(a)(10) permitting UCMJ jurisdiction over “persons serving with or accompanying an armed force in the field” in“time of war or a contingency operation.” As the issue's title suggests, the article on amendment to Art. 2 is not exactly ground breaking, rather a "review." The two paragraph review does, however, re-state the obvious (which we can all use at times), "The 2007 NDAA couched the change to the UCMJ as a 'clarification' of the application of the UCMJ. However, subjecting contractor personnel to the UCMJ during all contingency operations appears to constitute a significant change rather than a clarification." Now that our duh-moment of the morning is completed . . . back to work!

More to follow on this fascinating (at least to some---Guert go read the Caine Mutiny again) subject in May 2007, after the JSC meets. Hopefully some guidance will come out of their meeting.

Dearing Saga is Over . . .?

It appears that the saga that was the Dearing case has ended with Dearing's plea in a Naval Station Norfolk courtroom and a 10 year sentence, essentially time served. CAAF set aside the conviction based on the failure to give a self-defense instruction. The case was remanded with several hiccups, reported here and here, including the Navy's seeming inability to transfer Dearing to pre-trial confinement. The Virginian-Pilot reported that Dearing pled guilty last week, and may be free today (will we see another Dearing writ on that . . . ). The military judge sentenced him to 40 years confinement. The terms of his PTA suspended all confinement in excess of 10 years. The following interesting exchange is included in the Pilot story.

Dearing pleaded not guilty in 2000, saying he had acted in self-defense. According to court records, his lawyers asked the judge, Clark A. Price, to instruct the jury about self-defense and escalating violence in a fight.
Price chose not to do so - and the U.S. Court of Appeals for the Armed Forces cited that error, and an appeal so lengthy it violated his rights, when it overturned Dearing's conviction last September.
Dearing told a different story Wednesday. Responding to questions from Booker, Dearing testified that none of the victims had threatened him.
"You were actually the aggressor here?" Booker asked.
"Yes, sir," Dearing responded.
"You were never placed in a position of helplessness? You weren't pinned down, you weren't cornered?"
"No, sir," Dearing replied.

CAAF rejects writ appeal challenging really ugly Coast Guard policy

CAAF's daily journal for Wednesday, 4 April denied without prejudice the writ appeal in United States v. Morton, __ M.J. ___, Misc. No. 07-8009/CG (C.A.A.F. April 4, 2007). An earlier CAAFlog entry provided the bizarre factual background for this writ. As CAAF explained in its order this week, the defense sought "an order to permit the defense to prepare a 'privileged verbatim transcript'" of the Article 32 investigation or, in the alternative, "an order prohibiting the [government] from preventing the [defense] from preparing such a transcript of the proceeding."

As "Brad" previously explained, "The Coast Guard refuses to record or otherwise preserve Article 32 testimony. In this case the defense decided to bring a civilian court reporter to the Article 32 so that they could have a verbatim transcript of the proceeding. The convening authority forbade the defense from using the court reporter." That sounds like a pretty horrendous order to me. Judge Erdmann thinks so too. In his separate opinion concurring in part and dissenting in part, Judge Erdmann writes:

I would grant partial relief by ordering that Appellee take no steps to preclude an employee of the defense from attending the Article 32, Uniform Code of Military Justice, 10 U.S.C. § 832 (2000), hearing, as a member of the public and from transcribing the proceedings, subject to the investigating officer’s power to exercise reasonable control over members of the public attending the proceedings. I would not address the issue of attorney work-product privilege at this time as that is a matter appropriately left to a military judge in the event of a trial by court-martial.

Yesterday I noted my belief that rules governing criminal proceedings should generally be designed to promote a trial's truth-seeking function. Refusing to allow a record to be made of a witness's statements at an Article 32 investigation would seem to thwart the truth-seeking function rather than promote it. What is a legitimate reason for the Coast Guard's and convening authority's approach?

I hope that despite having dodged the extraordinary writ bullet in Morton, the Coast Guard legal community realizes that the cost of this bizarre policy may be, at the very least, the reopening of the Article 32 once a military judge gets to rule on this issue if the charges are referred to a court-martial. And I hope that after realizing that, the Coast Guard does the right thing and voluntarily provides the relief that CAAF declined to order.

CCA opinion accessibility

The broken link to the Coast Guard Court's opinions is finally working. Let there be rejoicing throughout the land!

And, in what I hope is a significant development, the Navy JAG site now features two unpublished 5 April opinions on the NMCCA opinion web page. Could this be the start of more frequent posting of naval opinions? Hope springs eternal (except perhaps for a Nationals fan these days).

Supply and demand

NPR this morning had a lengthy (more than 7 minutes) report on judge advocates' ever-expanding role in operational settings. (You can listen to it here.) The end of the report noted that last year that Army JAG Corps brought in 150 new lawyers -- and had five times that number of applicants.

New conference docketed

Make a note on your calendar on 20 April. That is the day the Supremes will consider whether to grant cert in New v. Gates, 06-691. Also make a note on your calendar to check the Supreme Court's orders around 1000 on Monday, 23 April. That's when we will probably learn whether the Supremes have granted cert in New -- which seems to have the greatest likelihood of a cert grant of any military justice petition in years.

Taylor is a privilege to read

I'm going to type fast in an effort to beat Guert to the punch this time. (So far he's ahead in our races 2-0. Guert -- it's supposed to be "the quick and the dead," not "the dead is quicker.")

My first overarching thought upon reading Taylor is, "This is going to be a good 15 years." Taylor features CAAF's two newest members in a steel cage match: Judge Stucky for the majority and Judge Ryan in dissent. Each of their opinions is wonderful -- and wonderfully respectful of the other. Taylor reflects a principled debate between two informed judges, each of whom advances a quite plausible argument for his or her position.

Judge Stucky's opinion is extremely engaging. He throws in little details -- Taylor's wife left him to finish high school; Taylor's 15-year-old paramour lived in a trailer park -- that aren't necessary for the decision but that liven it up for the reader. Most importantly, Judge Stucky -- like Judge Ryan in her opinion for the court in United States v. Leonard, 64 M.J. 381 (C.A.A.F. 2007) -- begins in Army "Bottom Line Up Front" (BLUF) style (which is also Garner's preferred opinion-writing style). Judge Stucky tells us what the issue is and how the court resolves it, rather than starting the opinion by trying to walk the reader through a thicket of charges, specs, pleas, findings, and CAs actions before even showing a glimpse of the prime real estate that the reader came to see.

The central issue in Taylor is whether the spousal communication privilege EXCEPTION for crimes against the person or property of the spouse applies to an adultery offense. Judge Stucky's opinion diligently traces the history of the various Manual for Courts-Martials' treatment of the issue, along with CMA's flip flops on the question. He ultimately concludes that MRE 504 should be read consistently with the 1969 Manual provision it replaced, which did not recognize a spousal testimony privilege for adultery. (I won't get into the whole history of the spousal communications privilege versus the spousal testimonial privilege, though Judge Stucky does in case you're interested.)

Judge Ryan, however, found it telling that unlike the 1969 Manual, MRE 504 does not expressly exclude adultery cases from the marital privilege's reach. Her main argument, though, is a plain meaning interpretation of the words, "one spouse is charged with a crime against the person or property of the other." The plain meaning of that language appears to exclude adultery. She notes that including adultery within that language's scope essentially reads the words "the person or property of" out of the rule.

Each side makes a good argument, but I would give the nod to Judge Ryan, while conceding that I couldn't really argue with anyone whose scorecard has Judge Stucky ahead on points. I also think that there is an additional strong argument Judge Stucky could have made but didn't. I believe that, as a general matter, courts should maximize the truth-seeking function. Accordingly, rules of evidence should let in as much reliable evidence as possible. (That's why I'm not a fan of the exclusionary rule in the 4th Amendment context, while I am a fan of excluding confessions where coercive interrogation techniques have rendered them untrustworthy.) Privilege rules interfere with the truth-seeking function by excluding perfectly trustworthy evidence. So, as the Air Force Court reminds us, "the Supreme Court has held that privileges must be narrowly construed because they impede the search for truth. United States v. Nixon, 418 U.S. 683, 710 (1974)." United States v. McCollum, 56 M.J. 837, 842 (A.F. Ct. Crim. App. 2002). I think the majority's argument would have been weightier if it had put this narrow construction thumb on its side of the scale.

Finally, I have one small bone to pick with Judge Ryan's dissent. It's a pet peeve of mine, but just as an essential element of Festivus is the airing of grievances, an essential element of a blog is the induldgence of pet peeves. Judge Ryan's dissent twice refers to a "jury." ("After examining the record, I cannot say that the testimony of Appellant's wife did not have a substantial influence on the jury." Dissent at 7; "The decisional crux was whether the Appellant or the alleged object of his infidelity was truthful, a question that the jury could have resolved either way." Dissent at 7-8.) As best as I can tell, this was a bench trial. The majority opinion refers to "the military judge" convicting Taylor. Majority opinion at 3. The court below tells us that a "military judge, sitting as a special court-martial, convicted the appellant, contrary to his pleas, of carnal knowledge and adultery with the same individual." United States v. Taylor, 62 M.J. 636, 636 (N-M. Ct. Crim. App. 2006). So I'm not sure why the dissent even refers to a "jury." But even if it had been a members panel, I would still argue that the use of "jury" is mistaken. A members panel is not a jury. A jury in a felony case cannot consist of five members. Ballew v. Georgia, 435 U.S. 223 (1978). Yet a five-member court-martial panel can convict an accused of murder and sentence him to confinement for life without parole. A six-member jury cannot convict an accused by a non-unanimous vote. Burch v. Louisiana, 441 U.S. 130 (1979). Yet a six-member court-martial panel (or, for that matter, a five-member court-martial panel) can convict based on a 2/3 majority vote. And, of course, a "jury" could never be hand-picked the way that a court-martial panel is. Lake Superior State University has become famous for publishing an annual list of words that should be "Banished from the Queen's English for Mis-Use, Over-Use and General Uselessness." If CAAF maintains such a list, "jury" should be near the top.

Okay, on to the feats of strength . . . .

New CAAF opinion is out

United States v. Taylor, __ M.J. ___, No. 06-0319 (C.A.A.F. April 5, 2007), is now out on CAAF's web site. Judge Stucky writes for a 4-1 majority holding that an accused may not invoke the spousal confidential communications privilege to prevent his wife from testifying about his admission to committing adultery. Judge Ryan dissents. More after I read it.

Government PETITION for grant of review?

While CAAF's daily journal doesn't contain any orders granting review and ordering briefs these days (see below), the 2 April daily journal does contain one fascinating entry.

In United States v. Nieland, Misc. Dkt. 2006-08 (A.F. Ct. Crim. App. 29 Jan. 2007), in an opinion by the great Judge Mathews (why do I fear that being praised by CAAFlog won't prove beneficial to Judge Mathews' career?), the Air Force Court rejected an Article 62 appeal. The Air Force Appellate Government Division then, according to CAAF's 2 April daily docket, "filed a petition for grant of review under Article 67(b), UCMJ, 10 U.S.C. § 867(b) (2000), on February 2, 2007, seeking this Court's review of the decision of the Court of Criminal Appeals." United States v. Nieland, __ M.J. ___, No. 07-6002/AF (C.A.A.F. April 2, 2007). Huh? When has the GOVERNMENT ever filed a petition for grant of review? The government is supposed to get the Judge Advocate General to certify the cases it loses at the CCA--eliminating that pesky petition for grant of review process that the defense must go through after losing at the CCA. The only time the government is supposed to file a petition at CAAF is after it loses there, when the government then files its semi-obligatory petition for reconsideration.

What an odd development.

That's not just my reaction; CAAF thought so, too: "On consideration [of the government's virtually inexplicable petition for grant of review], it is ordered that said petition for grant of review filed by the Government be and the same is hereby dismissed for lack of jurisdiction."

There appear to be only two potential ways to get a CCA's ruling on an Article 62 appeal up to CAAF: (1) certification by a Judge Advocate General; or (2) an extraordinary writ. There doesn't even appear to be statutory authority for the defense to file a petition for grant of review where a CCA rules for the government on an Article 62 appeal. The notion that the GOVERNMENT could file a petition for grant of review in a 62 appeal seems even farther out in left field than either of those homers that Miguel Cabrera hit at RFK this week. If we have any Air Force Appellate Government Division lurkers out there, could you please share with us what you were thinking?

CAAF petitioners 0-for-March

It looks like CAAF's output will be fairly light this term. Will this trend continue? Well, judging from March: yes! Last month, CAAF didn't grant plenary review of a single case. CAAF's daily journal is now current through 3 April. The last entry granting review and ordering briefs is dated 22 February. See United States v. Othuru, __ M.J. ___, No. 06-0768/NA (C.A.A.F. Feb. 22, 2007).

So it's been 39 days since CAAF granted review of a case and ordered briefs. Shall we keep a running count, much like the little Barry Bonds home run counter in the outfield at AT&T park?

Another stealth published opinion

While one wouldn't know it from looking at the CGCCA web site, WESTLAW indicates that the Coast Guard Court's Skidmore opinion will be published. United States v. Skidmore, __ M.J. ___, 2007 WL 957334, CGCMS 24314 (C.G. Ct. Crim. App. 29 March 2007).

First the Coast Guard Court wrestles with the issue of whether an accused who admits to illegally using cocaine on 4 to 5 occasions has providently entered a plea of guilty to divers uses of cocaine. CGCCA says yes, but spends much more time wrestling with the question than one might expect (and one judge, Judge Lodge, actually dissents on this point). The court tells us:

The military judge erred when he failed to fully inform Appellant of the elements of the charge and that the specification alleged cocaine use on divers occasions. He also erred when he informed Appellant that Appellant was only required to admit cocaine use on four or five occasions but did not need to establish a factual basis for those additional uses. Therefore, we may affirm Appellant’s guilt only if "it is clear from the entire record that the accused knew the elements, admitted them freely, and pleaded guilty because he was guilty." United States v. Jones, 34 M.J. 270, 272 (C.M.A. 1992) (citing Article 45(a), UCMJ). Similarly, we may not affirm a finding based solely upon an accused's statement of a legal conclusion that he or she is guilty of an offense. United States v. Schrader, 60 M.J. 830, 831 (C.G.Ct.Crim.App. 2005); United States v. Halsey, 62 M.J. 681, 686 (C.G.Ct.Crim.App. 2006).

The Coast Guard Court then proceeds to reason:

It is clear from the record that Appellant knew he was charged with using cocaine on more than one occasion, and he freely admitted using cocaine on occasions other than in May 2004. He acknowledged that the substance he used on each occasion had the appearance of cocaine, that he was aware he was using cocaine, and that he experienced an effect consistent with cocaine use. These admissions, combined with his admitted use of cocaine in May 2004, provide a sufficient factual basis to establish that Appellant knowingly used cocaine on more than one occasion. Appellant also acknowledged his awareness that use of cocaine was illegal.

One of the all-time great titles for a military law review article is Major Terry L. Elling's Guilty Plea Inquiries: Do We Care Too Much?, 134 Mil. L. Rev. 195 (1991). Like Major Elling, I tend to think the answer is yes. If a petty officer wants to plead guilty and admits that he illegally used cocaine 4 to 5 times, why isn't that enough? The majority's machinations in Skidmore, while ultimately reaching the correct result, appear to be an example of the form over substance about which Major Elling warned us. And one judge actually dissents from this portion of the court's opinion, noting that he would reject the finding of guilty to "divers" uses.

Last week in Gitmo, I saw a commission defendant successfully enter an Alford plea and then waive all of his appellate rights pursuant to a pretrial agreement. Now I know that the Military Commissions Act of 2006 is designed to prevent court-martial practice from being contaminated by the far-less-fair military commission procedures. But I do wonder whether, in the area of pleas and permissible terms of bargains, commissions practice isn't a step ahead of court-martial practice. See also Major Steven E. Walburn, Should the Military Adopt an Alford-Type Guilty Plea, 44 A.F. L. Rev. 119 (1998).

In the far more significant portion of CGCCA's opinion, the court found plain error arising from a senior chief petty officer's testimony during sentencing that Petty Officer Skidmore's "rehabilitation within the Coast Guard" was "questionable at best." The Coast Guard Court found that, despite the absence of defense objection, this testimony violated United States v. Ohrt, 28 M.J. 301, 303 (C.M.A. 1989). The court refused to find harmless error or reassess the sentence. On the basis of the Ohrt error, plus the military judge's erroneous admission of aggravating evidence concerning the accused's assigned duties at the time of his offense (also not objected to at trial), the Coast Guard Court set aside the sentence in the case and remanded for a new sentencing hearing.

Doctoring a members panel

I previously noted that the Etibek case in the ACCA on-line database of published cases appears to be misfiled. WESTLAW now includes a to-be-published case from the Army Court that I can't find on ACCA's web site. I suspect it is the case that should have been uploaded where Etibek is.

Too bad, because United States v. Bartlett, __ M.J. ___, 2007 WL 942395, No. ARMY 20021244 (A. Ct. Crim. App. 29 March 2007), is a very interesting case,

As ACCA explains, the staff judge advocate in this guilty plea unpremed murder case advised the Convening Authority, "Pursuant to Army Regulation (AR) 27-10, Chapter 7, you may not detail officers assigned to the Medical Corps, Medical Specialist Corps, Army Nurse Corps, Dental Corps, Chaplain Corps, Veterinary Corps, nor those detailed to Inspector General duties as courts-martial panel members." Id.

The resulting doctorless panel sentenced LTC Bartlett to confinement for 25 years and a dismissal. (He murdered his wife at Carlisle Barracks.)

At trial, the "defense asserted Article 25, UCMJ, lacks any language authorizing limitation or amendment by the Service Secretary concerned; therefore, the Secretary of the Army improperly attempted to amend a statute via regulation when he exempted the designated branch officers from the convening authority's consideration." Id.

"In denying the defense motion for a new panel, the military judge made extensive findings and held the 'Secretary of the Army has the authority to limit, for a benign reason, the pool of officers from which the GCMCA is permitted to select court-martial members.'" Id. ACCA continued:

The military judge noted that 10 U.S.C. § 3013 created the Secretary of the Army's position and statutorily empowered him to “assign, detail, and prescribe the duties of members of the Army” and to “prescribe regulations to carry out his functions, powers, and duties ... which functions include, inter alia, organizing training, servicing, administering, and maintaining the Army.” The military judge also observed:

In excluding these officers from court-martial duty, and from nearly all other routine[,] non-[military occupational specialty]-related duties, the [Secretary of the Army] has determined that the Army's critical need for officers of their unique education, training, and experience to perform duties within their unique expertise is more important to the mission than is their service on courts-martial.

ACCA upheld the trial judge, ruling:

Appellant's contention raises the question of whether Article 25, UCMJ, limits 10 U.S.C. § 3013. At first glance, the Secretary of the Army's authority under 10 U.S.C. § 3013 may appear to conflict with Article 25(a), UCMJ, which provides: "Any commissioned officer on active duty is eligible to serve on all courts-martial for the trial of any person...." (Emphasis added.) However, this court recognized more than fifty-five years ago that the Secretary of the Army has the authority to exempt persons assigned to a particular branch from court-martial service. See United States v. Neville, 7 C.M.R. 180, 1952 WL 2530 (A.B.R.1952), rev. denied, 7 C.M.R. 84, 1952 WL 2997 (C.M.A.1952). "Except for the non-availability of chaplains for such duty (AR 660-10, para. 2), this rule [of universal officer eligibility for court-martial service under Article 25(a)] is unrestricted in the Army." Id. at 192 (emphasis added).

ACCA continued:

The Secretary of the Army determined that certain Army members are unavailable to serve on court-martial panels because of the nature of their duties. This decision affects the feasibility of their service under Army policy, not their eligibility for service under the law; accordingly, it does not run contrary to Article 25. Furthermore, the Secretary of the Army's determination regarding the feasibility of officers from certain special branches serving on courts-martial is separate from the convening authority's selection of panel members under Article 25, UCMJ.

ACCA then proceeded to accord Chevron deference to the Secretary of the Army's construction of 10 U.S.C. § 3013. The predictable consequence of the application of Chevron deference is that ACCA upholds the Secretary's decision.

I'm glad that the Kabul Klipper, who litigated the Dowty appeal, isn't around to see this one. I'll be noting in another post tonight that CAAF hasn't been granting review of many cases lately. This case seems to scream out for further review.

CAAFlog South Asia, Si?

I'm stuck in Bagram for a while, so decided to pull CAAFlog at the USO. Wasn't in English, Dari, or Pashto. It was in Italian. Go figure. Should convoy to Kabul in the near future, hope Blackwater's not driving. Hmm . . . Wonder what happens when I press Pubblica?

Art. 32 IO Recommends Dismissal of Charges Against Military Officers in Afghanistan

An Art. 32 Investigating Officer recommended dismissal of all charges against two Air Force officers accused of assault, communicating a threat, and conduct unbecoming for alleged acts against contractors in Afghanistan. The recommendation of the IO is available here. The story presents part of a larger on-going issue that was noted first by CAAFlog (here) regarding military justice issues and military contractor's in the field. The Art. 2(a)(10) issue raised in this report is unmistakable from the IO's recommendations.

Thanks to Anonymous for spotting, he's a good man/woman.

While I was away . . .

My stay in the Pearl of the Antilles was longer than I expected. (Those of you who know what I do for a living and who subscribe to a newspaper or own a television set probably already know why.) But I'm back.

In Saturday's post, the No Man discussed ACCA's Etibek decision. ACCA's web site includes Etibek in its "Published Army Opinions" file, but Etibek, which is labeled a Memorandum Opinion, sure doesn't look like a published opinion. Perhaps it was uploaded into the wrong location.

In other military justice news, CAAF has released the schedule for its 2007 Judicial Conference, which will be held on 16 and 17 May at Catholic University's law school. I'll be speaking about extraordinary writs the second day. The title of my lecture will be: Military writ practice: What still glitters after Goldsmith?