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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.
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I think CAAFLog's concern is overblown. The idea in Saucier (I love that word, it reminds me of "Chef" in Apocalypse Now) is that there is a benefit for future cases in having constitutional rights fleshed out by the trial court so that the law can develop. I do note, however, that Justice Breyer (joined by somebody else who I can't recall) called for overruling Saucier yesterday as ill-considered, and I think there is some weight to his analysis in that regard.
Anyway, courts-martial are not federal district courts. Most important for present purposes, military judges don't issue published opinions, and rarely issue qwritten opinions in any form. So, one military judge's decision to recognize a novel defense might benefit the accused in that case, but doesn't "develop" the law for use by other accuseds.
And, because of the vagaries of criminal law, if the military judge recognizes a novel defense and the accused is acquitted, that issue never even gets up on appeal, so there is never a published (or even Westlaw) opinion that could benefit other accuseds as "precedent."
So, novel defenses asserted by one accused generally can benefit other accuseds only where the accused who asserts the defense is convicted and the case gets up on appeal. But if the military judge instructed on the novel defense, what's the likelihood that this issue will even be raised on appeal, given that the accused got what he wanted in terms of an instruction on that defense?
Therefore, the best (and most common) way for the assertion of a novel defense to benefit accuseds in other cases, ironically, is for the ACCA rule to prevail so that the MJ refuses to instruct and the accused can try to get ACCA to hold that the defense is a valid one.
All that said, of course trial defense counsel should assert defenses they believe are valid even if they know that the MJ won't (or can't) instruct on them, as that is the best way to protect their own client's interests and possibly can help establish available defenses for other accuseds. I just don't think that the ACCA holdings quoted in CAAFLog's post harm "the system" in the way CAAFLog posits.
But consider what would happen in a world governed by Axelson. The defense tries to raise a novel affirmative defense. The military judge says no, see Axelson. At that point, surely ACCA can't step in and say, "Wrong, trial judge, you should have given the requested instruction." Axelson will restrain ACCA to the same extent that it will restrain the trial judge. A military judge could never abuse his or her discretion by failing to inquire into a potential defense or give an instruction based on a novel affirmative defense. And if the military judge can never abuse his or her discretion, then no appellate court will be able to hold that the requested instruction was legally valid.
So in an Axelson world, neither the trial nor appellate judiciary will EVER recognize a new affirmative defense. Some might view that as a good thing, but it is at the very least a significant development. In the Army at least, the law of affirmative defenses is now freeze dried. Please write 30 April 2007 on the shrink wrap.
I don't read the snippets you quote in the original post so narrowly. I read them as telling MJs not to create new affirmative defenses and to leave that to the appellate courts. I don't read the language as foreclosing an argument on appeal that a new, novel affirmative defense should be applied. I would be surprised if the ACCA used the "discretion can't be abused becauser we took away your discretion" sophistry.
In any event, to the extent that your comment that some would view freezing affirmative defenses in place as a good thing is a jab at me, go back and read my original post. My only point was that the ACCA's holding doesn't create a "Saucier" problem because case law is not developed at the trial level in courts-martial, what with no published opinions or Westlaw opinions. Add to that the fact that a trial court's agreement to give a novel instruction would almost never be passed on at the appellate level because the government largely can't appeal and the accused would have no need to appeal that issue because the MJ gave him what he wanted.
Contrast that with Section 1983 and Bivens claims, where both sides can appeal, and trial court opinions are published in hard copy and electronically, and I think my point is self-evident. Of course, a prohibition on MJs giving novel defense instructions hurts the accused IN THAT CASE, but it's not a Saucier problem.
I never expressed a view as to whether ACCA's instructions are a good thing or a bad thing. Just that the claim of a Saucier problem isn't really apt given the differences between military and civilian practice.
JO'C -- my comment about some viewing no new affirmative defenses as a good thing was NOT directed at you. (I'll be sure to specify when I am jabbing at you. :-)) I was simply noting that there is a respectable argument to be made that the judiciary should not be in the business of creating new affirmative defenses. One might even respectably argue that even if judges in a civilian common law justice system should be allowed to recognize new defenses, in the military that power should be retained by Congress and the President to the extent that Congress has delegated that power to the President. So I wasn't even trying to cast aspersions -- much less cast them at you. (I am far less inclined toward judicial activism than some might suspect.)
I find this opinion interesting coming on the heels of CAAF's 24 April opinion in United States v. Shaw, which appears to limit the military judge's sua sponte duty to inquire into possible affirmative defenses. I do wonder, given some of the logic used in that opinion, how CAAF will treat Axelson.
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