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.