Monday, April 30, 2007

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!

4 comments:

No Man said...
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No Man said...

Though it will be great reading, I don't see Medina resulting in an Apprendi based decision. Schmuck is a Fed. R. Crim. P. 31 case (and tangentially an indictment and notice case). I don't see that winning the day on constitutional grounds. Maybe CAAF holds that the 6th A. right to jury trial applies to courts-martial and throws out the conviction because the modified elements weren't decided by members, that's a longer shot than new's cert. petition.

I see this more as a fatal variance case or other procedural issues. It could also dovetail with Parrish and decide the issue of CCA's ability to modify the spec without sufficient notice (appellate fatal variance if you will), again not likely a constitutional notice issue and even less likely an Apprendi issue. We can only hope for a different result, and one that doesn't say Apprendi does not apply to the military.

The case for Apprendi's application to the military is strong because of the Fifth Amendment rationale for Apprendi. Due Process and the Fifth A. are really the only constitutional hooks for checking many of the procedural components of the military justice system. To say that Apprendi doesn't apply would be to say that the Due Process clause does not apply. Moreover, the proof beyond a reasonable doubt
component of the Apprendi doctrine (Fifth A. based) has been expressly applied to c-m. Any CAAF decision that renounces Apprendi might be a good cert. petition. The problem in the MilJus system is not application of Apprendi but the sentencing structure of the system. With a totally indeterminate system in which members make all the decisions, including the penalty, it is difficult to fit an Apprendi problem into the system. The capital aggravating factor system that was at issue in, but not decided in, Pvt. Loving's last writ was the clearest analogy to the Apprendi line of cases. The other Apprendi-like issues that may arise in non-capital courts-martial all hinge on other non-traditional constitutional protections being wrapped up in the Apprendi doctrine. for example, does the President have authority to promulgate "the functional equivalent of elements" of military offenses through the maximum punishment table? Etc.

I think Medina may be the case to move my arse off the bench and into the academic writing fray. But, I doubt it is the case to move Apprendi into every day usage in the MilJus system the way Booker is in federal courts.

John O'Connor said...

"We can only hope for a different result, and one that doesn't say Apprendi does not apply to the military."

Speak for yourself.

While my thoughts are admittedly a bit off the cuff, I have a hard time seeing how an Apprendi analysis could create a CONSTITUTIONAL right in a forum where there is no CONSTITUTIONAL right to trial by jury.

I don't think the Fifth Amendment "reasonable doubt" standard has been violated as a matter of constitutional analysis, provided that the CCA found the accused guilty of the substituted offense beyond a reasonable doubt. No Man's argument requires the "hook" of a constitutional jury trial right in order to create a constitutional issue out of the fact that the reasonable doubt determination would have been made by someone other than a jury. I just don't see how there can be no constitutional jury right but a 5th Amendment violation if some of the elements weren't determined by the jury the accused had no constitutional right to.

All that said, I presume that this case will get decided on a non-constitutional variance standard, or perhaps based on the scope of the CCA's fact finding powers.

I also don't immediately see the sentence-enhancing feature that underlies Apprendi here, at least from the statement of the granted issue.

No Man said...

While I do speak for myself, I think, regardless of the outcome, everyone in the system would benefit from a CAAF opinion that frontally assaulted the application of Apprendi to the military justice system. If CAAF waived off on the issue via either procedural grounds or a brief dismissive statement that Apprendi doesn't apply because of the Sixth Amendment (as NMCCA did), I think it would do a dis-service to the system---if the Apprendi doctrine is arguably raised in this case, which appears to be at least the opinion of two (three?) judges. While I agree with Mr. O'Connor that jurisprudentially a Court should not address constitutional issues if they are not raised by the case, I think this area of criminal law has so changed the face of U.S. criminal law in every other forum that CAAF should take a run at it.