Thursday, April 05, 2007

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 . . . .


No Man said...
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Christopher Mathews said...

I'd give this one to Judge Stucky, not least because as recorder in an officer discharge board twelve years ago I made exactly the arguments he endorsed in his opinion. I give bonus points on my score card to judges who agree with me.

For what it's worth, though, I lost that round with the legal advisor, and had to find a different route to get the admissions in.

Marcus Fulton said...

Are you so sure that just because a members panel doesn't meet the legal requirements for state and Article III juries it therefore isn't a jury in any sense of the word? That's a little like saying that because the law requires that cars be manufactured with airbags, an old Beetle with the "oh sh*t" straps is therefore not a car.

I didn't schlep my Blacks Law Dictionary with me to Kabul (where, incidentally, CAAFlog is once again in English) but I'm pretty sure that the definition given in the seventh edition is broad enough to encompass the military panel. Interesting that in his first edition of Blacks, Mr. Garner, whom you cite approvingly in the post, removed the reference to a fixed number of people in the definition of jury. Maybe that's because we don't know how many members will fit into that Beetle.

I think this is the second time I've referenced Blacks in a comment; I'll restate that I'm aware of the limitations of arguing by definition. And I recognize that COMA has held and the Supreme Court has stated that an accused at a court-martial does not enjoy the constitutional right to a jury trial. But since the definition is the very thing we're arguing about rather than the constitutional right, I'll stick with Blacks and Mr. Garner on this one.

CAAFlog said...

A redletter day -- another judge joins the fray and we have a missive from the Kabul Klipper!

Klipper, your decision to commit the 8th edition of Blacks Law Dictionary to memory before shipping off for Afghanistan is already paying dividends.

"jury, n. A group of persons selected according to law and given the power to decide questions of fact and return a verdict in the case submitted to them."

That said, I still wouldn't use that term to describe a members panel because it carries certain connotations -- peers; random selection -- that don't apply to a members panel.

My position is somewhat amusing in light of the origin of the Navy-Marine Corps Appellate Defense motto: it was an N.C.M.R. judge COMPLAINING that military defense counsel embraced civilianization of the military justice system like "ducks to water." United States v. Jones, 7 M.J. 806, 808 n.2 (N.C.M.R. 1979). Included in Senior Judge Dunbar's airing of grievances was the following: "It is difficult to comprehend any intelligent purpose for the addition of a new descriptive phrase to military justice terminology, i.e., a 'motion to quash,' which is neither provided for in the Manual for Courts-Martial, United States, 1969 (Revised edition) nor is encompassed within normal military practice. At any rate, it is worthy of note that the High Court seemingly regards this and other civilian practice nomenclature appearing in its recent decisions to be 'valuable and elevating' to the military, quite apart from any definite function it may perform." Id. at 808.

But resist the urge to use the civilian terms, Senior Judge Dunbar warns like some ersatz military justice version of the ghost of Marley. "[T]the military forces cannot adopt the language, thinking, and legalisms of the civilian legal sector without ultimately breaking down the fixed and accepted beliefs, values and distinctions which enable us, effectively and militarily, to relate our conduct to each other." Id. at 808 n.2.

So there, Kabul Klipper. Use of the term "jury" to describe a members panel spells the demise of military good order and discipline. Please let Hamid Karzai know that.

Marcus Fulton said...

It may be that I grew accustomed to a broader use of the term from life before law school. As a music major, I had to play “juries” every quarter. A group of persons, selected according to law, were given the power to decide a particular question of fact. The fact in question: how good a violinist I had become. The verdict? Well, I decided to take the LSAT.

John O'Connor said...

I'm with caaflog, and Judge Dunbar (there's an unusual pairing): a member's panel isn't a jury.

Phil Cave said...

My vote would go to the dissent. From a policy perspective I'm not sure this decision will help in encouraging a couple to work out their problems and differences, and stay together, if one of them has to worry that what they say can / may help to put them in jail. I'll put this down on the side of military programs (FAP, ASAP) that are advertised to help, but end up being the best investigative and prosecution tools going.

Guert Gansevoort said...

You have won this race CAAFlog. But, in your haste to post comments on Taylor, you apparently read the wrong case. The judicial elimination of the confidential marital communications privilege is neither plausible nor defensible. And it is most certainly not a harbinger of good things to come. The “plausible” logic of the majority opinion is as follows: In 1951, the Paragraph 148e of the Manual for Courts-Martial provided an exception to the marital communications privilege when the testifying spouse was “injured by the offense with which the other spouse is charged.” In 1969, the President added adultery and crimes against children of either spouse to the listed exceptions to the privilege. In 1980, the President promulgated the Military Rules of Evidence, and M.R.E. 504 replaced Paragraph 148e. M.R.E. 504, specifically lists only two offenses which are excepted from the privilege: 1) prostitution of the other spouse and; 2) crimes against the children of either spouse. Paragraph 148e’s broad language excepting offenses that were “injurious” to the other spouse was replaced with the centuries old common law language that excepted from the privilege “crimes against the person or property of the other spouse.” According to the majority, by eliminating all but two of the listed offenses from the privilege, and specifically discarding the offense of adultery, and by narrowing the language from crimes that are “injurious,” to crimes “against the person or property of the other spouse,” the President intended to keep adultery as a crime against the person or property of the other spouse. As CAAFlog points out, the Supreme Court eliminated the testimonial privilege, not the communications privilege, in Federal Courts nearly thirty years ago to maximize the truth-seeking function of courts. But the President, and many Kings before him, has sacrificed this function for the purposes of promoting marital harmony. In fact the privilege was well established by the time of Lord Audley’s case in 1631. 123 Eng. Rep. 1140. As I type this, Marines and Sailors are committing adultery. It is perhaps to be expected in a wartime environment where frequent deployments strain marital relationships. Should they recognize the error of their ways and seek to salvage their marriages, servicemembers cannot now divulge their misconduct without the risk that the government is also listening intently to every word. I find this Orwellian future, and C.A.A.F.’s lack of judicial restraint and deference to the plain language of the rule, to be deeply troubling.

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

The previous two comments were deleted because they were starting down a road that we would like to leave "not taken." To be honest my first comment on this page borders on the same road. To show that we don't just delete borderline comments of anonymous participants in the blog, I have deleted it as well. Let's keep the discussion about military justice and all topics necessary and appropriate in furtherance of our discussion of military justice.