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 . . . .