Tuesday, April 24, 2007

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.


Anonymous said...

Thanks for the summaries. Understanding your own disappointment/disagreement, I think the cases are all significant for the guidance they give to trial practicioners.

I can't count how many otherwise well-informed and intended trial judges have denied relief for blatant violations of the accused's rights during Article 32 investigations simply because they were misled by the cases suggesting that some articulable prejudice had to be demonstrated before they could grant relief. I think Davis settled the issue nicely for them, even if the appellate courts will eventually have to fact the "error of constitutional or non-constitutional" issue.

You've already noted the tips Flores contains for counsel litigating the voluntary abandonment issue.

I'm also wondering, though, about the strategic/tactical implications of Beatty for trial practicioners.

It might be something of an answer for the dilemma faced by the defense when, contrary to the accused's pleas, the members convict and now the defense must present a case in sentencing that doesn't conflict too sharply with its case on the merits (or its hopes on appeal), even if the evidence would otherwise be fairly compelling E&M.

It seems to me that Beatty supports the defense's presenting all that evidence post-trial to the convening authority, without fear that the evidence could prejudice the review of the case for factual/legal sufficiency.

Theoretically, for example, even if the accused submitted a full confession to the convening authority in his post-trial submissions (in support of a claim for leniency that he has accepted full responsibility?), wouldn't the reviewing court have to disregard it totally for purposes of assessing factual/legal sufficiency?

At the very least, counsel should give some thought as to what they're presenting on the record sentencing (vice what they might hold back for the convening authority's action), lest that evidence inadvertently undermine any claim the defense hoped to preserve for appeal.


John O'Connor said...

Clemency for kids who plead not guilty? Poor client control by the trial counsel.