New grant

Here is the precise, albeit largely uninformative, issue on which CAAF granted in a daily journal entry posted today:

WHETHER THE MILITARY JUDGE COMMITTED PREJUDICIAL ERROR BY DENYING THE DEFENSE'S MOTION TO SUPPRESS AND HOLDING THAT CERTAIN STATEMENTS MADE BY THE APPELLANT TO HIS WIFE DID NOT FALL WITHIN THE PRIVILEGE FOR CONFIDENTIAL MARITAL COMMUNICATIONS.

United States v. Custis, __ M.J. ___, No. 07-0188/AF (C.A.A.F. May 29, 2007) (order). I am ecstatic to report that the opinion below was authored by Judge Mathews the Great. So Mathews Month comes to a somewhat appropriate close after all.

You beat me, No Man

Guert usually beats me in posting analyses of CAAF opinions. So it seems oddly appropriate that the No Man beat me tonight, in part, because I was wasting precious CAAF analysis time reading about Guert's life (as well as the lives of numerous other Gansevoorts).

Examining Military Rule of Evidence 414

CAAF's new opinion in United States v. Schroder, __ M.J. ___, No. 06-0657/AF (C.A.A.F. May 31, 2007), makes some interesting law.

Schroder is a child molestation case. He was accused of raping his 12-year-old daughter and committing indecent acts with a 12-year-old neighbor. The central issues in the case concerned uncharged misconduct involving Schroder's stepdaughter, who testified that Schroder molested her when she was 9--22 years before Schroder's court-martial--as well as uncharged molestations and sodomy with his daughter whom he was accused of raping.

The military judge admitted the uncharged misconduct under Military Rule of Evidence 414 for the members' use regarding the charges involving both Schroder's daughter and Schroder's neighbor. One interesting issue arose concerning the specification alleging indecent acts with the neighbor. Some of the specific acts alleged in the specification fell within M.R.E. 414's authorization for consideration of other acts of child molestation, but others did not. The military judge didn't distinguish between those two groups of acts, but rather allowed the members to consider the M.R.E. 414 evidence as to the entire specification. Should the military judge have limited the member's use of the M.R.E. 414 evidence to the specific acts that fall within that rule's scope? In an opinion written by Judge Baker, CAAF unanimously said no. CAAF reasoned:

M.R.E. 414(a) provides that evidence of other acts of child molestation is admissible "[i]n a court martial in which the accused is charged with an offense of child molestation." The Rule does not limit the use of that evidence to qualifying acts within a specification, but rather to prove the specification itself. Congress could have expressly limited the Rule's application to specific acts, but it did not do so.

Slip op. at 11. (Shouldn't that excerpt have mentioned the President in addition to Congress? M.R.E. 414 originated as part of the Violent Crime Control and Enforcement Act of 1994 and become part of the Military Rules of Evidence in 1996 by operation of Military Rule of Evidence 1102's automatic incorporation of Federal Rules of Evidence changes. See generally 1 Stephen A. Saltzburg et al., Military Rules of Evidence Manual 4-223 (6th ed. 2006). But the President formally adopted M.R.E. 414, with changes, in 1998. See Mil. R. Evid. 414 drafters' analysis, Manual for Courts-Martial, United States at A22-37 (2005 ed.) ("Rule 414 is nearly identical to its Federal Rule counterpart. A number of changes were made, however, to tailor the Rule to military practice."). So while Congress could have narrowly limited the rule to specific acts, the President could have as well.)

CAAF did hold, however, that the military judge erred by failing to appropriately emphasize the limitations on the members' use of M.R.E. 414 evidence:

Although the law does not mandate a formulaic instruction, it is essential that where, as here, the members are instructed that M.R.E. 414 evidence may be considered for its bearing on an accused's propensity to commit the charged crime, the members must also be instructed that the introduction of such propensity evidence does not relieve the government of its burden of proving every element of every offense charged. Moreover, the factfinder may not convict on the basis of propensity evidence alone.

Slip op. at 15.

But no harm, no foul.

Another no harm, no foul call came out of what CAAF determined to be the TCs' erroneous argument, which asked the members to provide justice for not only the two victims in the case, but also for the stepdaughter who was the victim of the uncharged misconduct. The TCs even showed the members a slide with pictures of the daughter, the neighbor and the stepdaughter with the heading: "STOLEN INNOCENCE, JUSTICE PAST DUE." At the end of his rebuttal argument on sentencing, the TC asked the members to remember those pictures and told them, "The pictures are silent, but their silence screams for justice." Slip op. at 19. During his sentencing argument, the assistant TC showed the slide with the three photos to the members again and said: "Look at those girls. That is why we are here today. They deserve justice. They have been waiting for years for justice. They scream for justice. Members, make sure your sentence delivers justice for those girls . . . ." Slip op. at 20. No objection from the DC.

CAAF held that appeals to render justice for the stepdaughter was error:

Trial counsels' presentation invited members to convict and punish Appellant for his uncharged misconduct, as opposed to using that misconduct to inform their judgments regarding the charged conduct. The error was also plain and obvious. Appellant was not charged with offenses against SJS. Thus, as a matter of law, not morality, the court was not convened to render justice to SJS.

But there was no get-out-of-Leavenworth ticket for Schroder. Because CAAF found that the error wasn't prejudicial, it didn't rise to the level of plain error.

One final thought about Schroder. When I saw that it was an Air Force case, I thought that Mathews Month might have ended on an appropriate note, with CAAF affirming yet another ruling by Judge Mathews the Great. But, alas, such a contrived storyline may be found in Hollywood, but not on E Street. The opinion below was a per curiam by Judges Brown, Moody, and Fincher.

For Guert fans only (but that's everyone, right?)

This entry is slightly off topic, though it does have a direct military justice connection. Through that most blessed of all web sites, abe.com, I was able (feeble pun intended) to obtain a copy of Alice P. Kenney's The Gansevoorts of Albany: Dutch Patricians in the Upper Hudson Valley (1969). (Sorry, Guert, but the copy I received obviously had never been read in the thirty-some years since it was printed.) Guert is mentioned in only 4 of the volume's 289 pages. But one of these four pages includes an interesting, though all-too-brief, account of Guert's career after his famous role in the Somers mutiny's aftermath (if, indeed, mutiny it was):

Guert's career included occasional successes and many disappointments. In the Mexican War, he won distinction as the leader of a landing party which attacked Vera Cruz in 1847. In 1855, the year following his promotion to commander, he brought the ship Decatur to the aid of the inhabitants of Seattle during an Indian attack. Not long thereafter, however, he was relieved of his command for drunkenness on duty. [That helps to explain some of Guert's posts.] . . . Guert insisted that it was an exceptional instance, and with Peter's aid was assigned to more congenial duties at the Brooklyn Navy Yard. In the spring of 1862, after forty years of service, he at last received the command of a new sloop of war, the Adirondack. His delighted Uncle Peter reminded him to send for a dozen bottles of fine old Madeira that had been waiting for this occasion for thirty years. Six months later the Adirondack, on blockade duty in the Bahamas, ran on a rock and was lost. A court-martial cleared Guert of blame, but the blow to his pride was shattering. After returning for a time to the Brooklyn Navy Yard, he retired and went to live with his sister Catherine Curtis in Schenectady, where he died.

Kenney at 248.

Guert, we're glad you've chosen to spend part of your post-mortem period with us.

US v. Schroder: Justice and a Moonlight Sonata

The conduct by Schroder in this case, three acts of molestation of his daughter over 15 years, would have gotten him thrown off of my baseball team before the second or third strike (unless he hit like Mickey Cochrane, no, that's only in today's sliding scale of morality world of sports, not mine). But I digress, Ludwig.

Judge Baker's opinion for a unanimous court in Schroder is about unpreserved errors. Judge Baker summed up the first issue (an MJ's instruction issue):

The military judge gave the following instruction on the use of uncharged misconduct evidence:

Each offense must stand on its own and you must keep the evidence of each offense separate. The burden is on the prosecution to prove each and every element of each offense beyond a reasonable doubt. As a general rule, proof of one offense carries with it no inference that the accused is guilty of another offense. However, you may consider the similarities in the testimony of [SJS] and [JPR] concerning any alleged offensive touching with regard to the charged
offense of rape. And you may consider the similarities in the testimony of [SRS], [SJS], and
[JPR] concerning any alleged offensive touching with regard to the offense of indecent acts with a child.

This was the extent of the military judge’s instructions regarding the use of SJS’s and JPR’s testimony admitted under M.R.E. 414.

Two instructional questions are presented. First, was the military judge required to disaggregate the instruction with respect to the three acts within the charge that qualified as
molestation and the two acts that did not? Second, and in any event, did the military judge err in his instruction as to how the members could consider the M.R.E. 414 evidence?

I thought the first question was an easy one since MRE 414 doesn't require the separation of charged and uncharged acts. As Judge Baker stated,

M.R.E. 414(a) provides that evidence of other acts of child molestation is admissible “[i]n a court martial in which the accused is charged with an offense of child molestation.” The Rule does not limit the use of that evidence to qualifying acts within a specification, but rather to prove
the specification itself. Congress could have expressly limited the Rule’s application to specific acts, but it did not do so.

On part two Judge Baker found error, but ultimately held no prejudice under the constitutional standard (harmless beyond a reasonable doubt), citing United States v. Wolford, 62 M.J. 418, 420 (C.A.A.F. 2006). I haven't done the research, but that seemed too easy a leap in assuming a constitutional dimension to the 414 issue with the instruction. Wolford is about an affirmative defense instruction and applied harmless BaRD. Judge Baker is a smart man (and I am not a smart man), but I would have liked to see his thought process--show his work a little--on that issue.

On the argument issue, Judge Baker found error in the trial counsel arguing that the case was about justice for the victim of the uncharged misconduct. I liked the wording of his holding on this point (law clerk or Judge Baker . . . you decide):

Appellant was not charged with offenses against SJS. Thus, as a matter of law, not morality, the court was not convened to render justice to SJS.

Eminently reasonable. He also held that under a plain error standard there was essentially no prejudice, citing the usual suspects: strong G case, passing reference in a long argument, G didn't get sentence it asked for, etc.

Both the instructional error and the argument error may have come out differently had trial defense counsel objected to the challenged instruction or the trial counsel's argument. Though CAAF reviewed the instructional error de novo, because the military judge misstated the law, had trial defense counsel objected the military judge may have gotten the charge right. Would findings have come out the same? If the military judge had upbraided trial counsel during closing that the members could not consider the uncharged acts in rendering justice would they have acquitted or imposed a less severe sentence?

Big news day

A new CAAF opinion, a new CAAF grant, and a new military justice blog.

CAAFlog Talk, with Linda Richman returns

I recently noted a law review article by JO'C. And the upcoming volume 189 of the Military Law Review will include my article about the actual operation of the military death penalty system. My reading this evening will be Professor James Liebman's recent law review article, Slow Dancing with Death: The Supreme Court and Capital Punishment, 1963–2006, 107 Col. L. Rev. 1 (2007).

But a recent New York Times article tells us that law review articles are becoming increasingly irrelevant. What's your view? Are military law journals, which are much more practical than theoretical, more relevant than the typical law review article? Are relevance and practicality virtues or vices? Discuss.

New CAAF grant

A new grant went up on the daily journal on CAAF's web site today. The issue in United States v. Toy, No. 07-0316/NA, is: "Whether Mil.R.Evid. 317(a) incorporates state statutes when determining an unlawful interception of an oral or wire communication." Sounds interesting.

The Cossio watch

There was quite a bit of military justice activity at the Supreme Court today. The Supremes denied Salvador Diaz's petition seeking rehearing on the Supremes' denial of his cert petition. And the Supremes denied the pro se cert petition in Perez v. United States, No. 06-10998. (Today's Order List is here.)

As Fitz previously indicated, a cert petition in Cossio v. United States, No. 06-1568, was docketed. CAAF rejected an Article 10 speedy trial issue below in a unanimous three-judge decision written by Judge Erdmann. United States v. Cossio, 64 M.J. 254 (C.A.A.F. 2007). Let the Cossio watch begin!

Summer reading list

If you have already compiled your summer reading list, I've got another title for you to add: In the Common Defense: National Security Law for Perilous Times, by Judge Baker. It is available through amazon.com for $30. Here is amazon.com's book description:

The threat of terrorism places U.S. national security police at the crossroads of security and liberty. This book focuses on the legal issues surrounding the war on terror. This book is essential reading for anyone who wants an honest review of the law and an accessible understanding of how law relates to U.S. national security. This is also a book about national security government and why it is dependent on good process and the moral integrity of those who wield its power. This is at heart a book about the process and practice of government and what we should mean when we refer to "good government."

That's a topic that interests most of us. For those of you who practice before CAAF, the book will no doubt also offer insights concerning 1/5 of your target audience's jurisprudence.

What other military justice/military law/national security titles are on your summer reading list?

Resource alert

For those of you obsessed with the extension of court-martial jurisdiction over civilians (and, No Man, you know who you are), there is a new article by NIMJ Executive Director Kathleen Duignan, for which NIMJ's web page provides a link. Kathleen Duignan, Civilians and Military Law: An Unconstitutional Mix, J. Int'l Peace Operations, May/June 2007, at 21. But for those of you too impatient to make that intervening click (No Man), here is a direct link.

The CAAFlog pop quiz

A new military cert petition has been filed and docketed at the Supreme Court. The case name is Daniels v. United States, No. 06-11441. But don't click through to look at its docket entry yet because there's a pop quiz at the end of this post.

The issue below in Daniels concerned a due process violation arising from appellate delay. See United States v. Daniels, __ M.J. ___, No. 06-0898 (C.A.A.F. Feb. 12, 2007). Appellate delay was previously the subject of a cert petition that counsel from the Navy-Marine Corps Appellate Defense Division filed on behalf of multiple clients. See Craig v. United States, 127 S. Ct. 1141 (2007) (order denying certiorari).

Here was the QP in Craig: "Whether a harmless beyond a reasonable doubt analysis applies to a violation of an appellant's right to a speedy post-trial appeal, which is recognized as a constitutional due process right and is tested under an analysis that already includes the element of prejudice derived from Barker v. Wingo, 407 U.S. 514 (1972)."

Does anyone think that q.p. is frivolous? The fact that the Supremes denied cert certainly doesn't make it so. The Supremes have often denied cert in one case and then, seeing that the issue has momentum, granted cert on the same issue in another case. Here's an example that will be familiar to many military justice practitioners. In United States v. Mustafa, 22 M.J. 165 (C.M.A. 1986), CMA
examined the admissibility of blood spatter evidence and ruled that Mil. R. Evid. 702 had adopted a more liberal standard for the admissibility of novel forms of scientific evidence. Does that general issue sound familiar? Well Mustafa sought cert, which the Supremes denied over Justice White's and Justice Brennan's dissent. Mustafa v. United States, 479 U.S. 953 (1986). Here's what the dissenting justices wrote:

In this case the trial court admitted, over petitioner's objection, the testimony of a purported expert on blood spatter techniques. On appeal, the Court of Military Appeals held that the testimony in question was admissible under Military Rule of Evidence 702, which is worded identically to Federal Rule of Evidence 702. The court held that the so-called Frye test for determining the admissibility of expert testimony, see Frye v. United States, 293 F. 1013, 1014 (1923), was superseded by the 1975 enactment of the Federal Rules of Evidence. The court described Military Rule 702 as establishing a much lower threshold than Frye for determining whether a given person is an expert. This conclusion is supported by decisions interpreting Federal Rule of Evidence 702 as establishing a more flexible standard of admissibility than the Frye test. See, e.g., United States v. Downing, 753 F. 2d 1224 (CA3 1985). Other courts, however, have interpreted Federal Rule of Evidence 702 as incorporating the Frye test. Barrel of Fun, Inc. v. State Farm Fire & Casualty Co., 739 F. 2d 1028, 1031, n. 9 (CA5 1984); United States v. McBride, 786 F. 2d 45, 49 (CA2 1986). I would grant certiorari to resolve this conflict on an obviously recurring and important issue.

Mustafa v. United States, 479 U.S. 953, 953 (1986) (White, J., dissenting from denial of certiorari).

Six years later, this time joined by Justice Blackman, Justice White would again dissent to a denial of certiorari in a case raising the same general Frye test vs. Fed. R. Evid. 702 issue. Christophersen v. Allied-Signal Corp., 503 U.S. 912 (1992) (White, J., dissenting from denial of certiorari).

The Supremes denied cert in Christophersen on 2 March 1992. At the start of the Court's next Term, it granted cert in a little case called Daubert v. Merrill Dow Pharmaceuticals, 506 U.S. 914 (1992) (order granting certiorari). (Just think of how much easier life would be if the Supremes HAD resolved this issue in Mustafa -- which would have spared us all from having to decide how to pronounce "Daubert." BTW, I was once giving a lecture on Daubert, so I called up one of Mr. Daubert's counsel to ask. He told me it's pronounced Dow-Bert.)

So don't think that just because the Supremes denied the cert petition in Craig, the exact same issue in Daniels was frivolous.

So why, of why, was Daniels filed as a pro se IFP cert petition?

As best I can tell, the answer to that question concerns Sergeant Daniels's branch of service.

Which brings us to the CAAFlog pop quiz: Without looking it up on either the Supreme Court's or CAAF's website, name Lloyd C. Daniels III's branch of military service.

Extra credit will be given for accompanying your answer with an analysis of whether military appellate defense counsel should have filed Daniels's cert petition on his behalf.

CAAF grants petition

Today's update of CAAF's daily journal includes a new grant, which might actually fill CAAF's dance card for its first day of oral argument next term.

The issue granted in United States v. Brown, __ M.J. ___, No. 07-0286/AR (C.A.A.F. May 23, 2007) (order) is, "Whether the military judge erred by instructing the court members that they could convict appellant of indecent assault, the lesser-included offense of rape, without voting on each of three separate factual scenarios, which effectively constituted duplicitious pleading."

Do not go directly to CAAF; do not collect writ of mandamus

CAAF' summary disposition of a petition for writ of mandamus in the Army case of Daniels v. United States, Misc. No. 07-8016/AR, reminds us that CAAF's "Rule 4(b)(1) provides that '[a]bsent good cause, no [petition for extraordinary relief] shall be filed unless relief has been sought in the appropriate Court of Criminal Appeals.'" CAAF observed, "Petitioner has not first sought relief at the lower court and has made no showing of good cause. Accordingly, it is ordered that said petition is hereby denied." Does anyone know the nature of the writ? And, hey, bypassing ACCA may not even be a good idea. Unlike the Air Force and Coast Guard Courts, at least ACCA has actually issued some writs during the current decade. (That last sentence would also work if it concluded with either "this century" or "this millennium." Please vote for your favorite closing.)

Stay denied in Lopez de Victoria

We previously noted ACCA's very interesting opinion in an Article 62 appeal concerning the retroactive effect of Congress lengthening the statute of limitations for child abuse offenses in United States v. Lopez de Victoria, __ M.J. ___, No. ARMY MISC 20061248, 2007 WL 1310317 (A. Ct. Crim. App. May 7, 2007). Lopez de Victoria's counsel filed a petition at CAAF the very next day. This Monday, CAAF denied a motion to stay proceedings. United States v. Lopez de Victoria, __ M.J. ___, No. 07-6004/AR (C.A.A.F. May 21, 2007) (order).

New AF cert petition

On 21 May, Capt Fredland of Air Force Appellate Defense filed a cert petition in Banker v. United States, No. 06-1544. CAAF had affirmed in a summary disposition after the case returned from the remand Banker won in his initial appeal. See United States v. Banker, __ M.J. ___, No. 03-0128/AF (C.A.A.F. Feb. 20, 2007) (summary disposition); United States v. Banker, 60 M.J. 216 (C.A.A.F. 2004).

Capt Fredland, would you be so kind as to let us know the question presented?

Two new cert petitions

The estimable LT Brian Mizer has filed two new cert petitions. One is Muhammad v. United States, No. 06-1529, which is the last in the outbreak of anthrax cert petitions. The other is Fuhrman v. United States, No. 06-1538, which presents a facial challenge to Military Rule of Evidence 505. I believe that Muhammad and Fuhrman are the fourth and fifth cases in which LT Mizer has been counsel of record in a cert petition. That means that during his almost-completed tenure at Navy-Marine Corps Appellate Defense, LT Mizer has personally been counsel of record in . . . just a second, let me do the math here . . . five more cert petitions than every counsel at Army DAD combined.

New CAAF opinion

CAAF today released its opinion in United States v. Roberson, __ M.J. ___, No. 06-0611 (C.A.A.F. May 22, 2007). Roberson will probably be best remembered as the case that filled in for Cabrera-Frattini at the Loyola Law Project Outreach argument.

Judge Erdmann writes for a unanimous court. The Cliff's Notes version of the decision is that the military judge erred by excluding a wheelbarrow full of defense evidence, but that it wouldn't have changed the case's outcome. Oh, and the 1,524 days (!) of appellate delay were non-prejudicial. Affirmed.

Professor Lichtman, the JO'C is on you

Beloved CAAFlog commentator JO'C has a new piece in the Maryland Law Review: John F. O'Connor, Statistics and the Military Deference Doctrine: A Response to Professor Lichtman, 66 Md. L. Rev. 668 (2007). The article includes an endorsement of CAAF's outcome in Lane. Id. at 683.

CGCCA creates massive service split

In its new opinion in United States v. Bridges, __ M.J. ___, Docket No. 1233 (C.G. Ct. Crim App. May 18, 2007), the Coast Guard Court creates a split with the Navy-Marine Corps and Army CCAs.

The issue in Bridges concerns the introduction of uncharged misconduct while Bridges was confined in the brig in "rebuttal" to a mitigation letter from his father during the sentencing hearing. A two-judge majority of the panel holds that the evidence was properly admitted and specifically rejects the Army Court's holding in United States v. Henson, 58 M.J. 529 (A. Ct. Crim. App. 2003), and the Navy-Marine Corps Court's holding in United States v. Lowe, 56 M.J. 914 (N-M. Ct. Crim. App. 2002).

The Coast Guard Court reasons that "the prohibition of M.R.E. 404(b) do[es] not obviously apply after the accused has been convicted, since there is no longer a danger of conviction on the basis of prior misdeeds . . . ." The Coast Guard Court criticizes Henson for "leap[ing] from the pre-findings context . . . to the presentencing context without explanation."

The Coast Guard Court is just as dismissive of Lowe: "United States v. Lowe, 56 M.J. 914 (N.M.Ct.Crim.App. 2002), supports Appellant, but we find it no more persuasive than Henson in that it misapplies United States v. Wingart, 27 M.J. 128 (C.M.A. 1988)."

Judge Felicetti writes separately in Bridges and concludes that the evidence of appellant's misconduct in the brig was erroneously admitted. But he concurs in the result, finding that the error was harmless.

As both the majority and concurring opinions suggest, the prejudice prong is difficult for the defense to meet in this case. In deciding when to exercise its discretionary jurisdiction, CAAF usually gives great weight to whether the supp suggests that the assigned error actually prejudiced the defense. One wonders whether CAAF will nevertheless grant review in Bridges (assuming Bridges petitions for a grant of review) to resolve the service split that the Coast Guard Court's opinion prominently highlights. Given the recent paucity of grants, at least it would provide an interesting hour of oral argument next term.

CCA Update

The Coast Guard Court has issued a new published opinion. United States v. Bridges, __ M.J. ___, Docket No. 1233 (C.G. Ct. Crim App. May 18, 2007). I'm going to the Nats-Os game tonight, so Guert, the floor is yours for the next several hours.

Also, NMCCA has provided a rare intra-month update of its opinions on its web site. Here's a serious idea. I understand from earlier commentary on the blog that the Air Force maintains the Coast Guard Court's web site. Is there any chance that the Navy-Marine Corps Court could enter into a similar arrangement with the Air Force web master so that Navy-Marine Corps Court opinions could be posted the same day, like today's CGCCA opinion in Bridges is?

Blogging from the CAAF Conference: Art. 2(a)(10), UCMJ

No celebrity sightings at the CAAF Conference. However, there was an Art. 2(a)(10), UCMJ “citing” between 4 and 5 p.m. The last presenter of the day (the only one I saw) was DoD Assoc. Dep. General Counsel (MilJus and Personnel Policy) Robert E. Reed. Mr. Reed gave us the interesting, and somewhat longer, path that Congress took to get to the current revision to Art. 2(a)(10), UCMJ--adding civilians accompanying armed forces in the field during contingency operations to the list of persons subject to the UCMJ. The presentation included a synopsis of the offenses that Mr. Reed, and presumably DoD, view as not applicable to civilians now covered by the UCMJ, including fraternization and Gambling with subordinates in Art. 134—re-start those Preakness wagers in Iraq!

Most interesting were the list of policy issues put out by Mr. Reed that DoD is considering. DoD is considering three methods to “manage” UCMJ civilian jurisdiction: (1) reach an agreement with DOJ on DOJ’s right of first refusal in concurrent Military Extraterritorial Jurisdiction Act (MEJA)/Art. 2 jurisdiction cases; (2) amend the Manual to withhold commander authority to act against civilians; and (3) amend the manual or implement other guidance requiring transmission of civilian UCMJ cases to higher authority (presumably one with a uniformed lawyer and able to reach out to DOJ and others). Mr. Reed also commented on the unlikelihood that NJP can be applied to civilians under the UCMJ. While he did not dismiss the idea, he seemed doubtful of it being either realistically or legally implemented--I wasn't sure which.

Finally, an issue that Mr. Reed left unaddressed from his handouts at the presentation was the question of whether the term “in the field” applies to civilians stationed INCONUS supporting U.S. forces in contingency operations, as thousands are today. Mr. Reed seemed to think that the answer was yes, but he did not take a position on it. His definition of “in the field” was based exclusively on the relationship between the armed force to which the person was attached and the enemy. Presumably Mr. Reed was addressing those contractors that are stationed stateside and supporting troops in Iraq, or elsewhere, in areas such as IT or logistics.

Notably, Reed also mentioned that DoS/DOJ were considering the case of a Christmas eve killing in Baghdad’s Green Zone, reported by the Virginian Pilot here, and whether the contractor (a DoS contractor, not DoD) involved would be subject to prosecution under MEJA or other law. In a Feb. 8. hearing at the House Committee on Government Oversight, here, though overshadowed by the issue of the death of the 4 contractors in Fallujah, Congress asked the contractor's General Counsel about the prosecution, reported here. However, no information of substance was available. Mr. Reed revealed that the contractor had returned to the United States. I would think there would be constitutional hurdles to a US based prosecution of a civilian contractor under the UCMJ. What rationale would there be for depriving the civilian of his Sixth and Fifth Amendment rights when he was no longer on the battlefield/"in the field" and the case would have no direct effect on good order and discipline, particularly in light of the expanded MEJA jurisdiction that Mr. Reed highlighted that would presumably cover this contractor? For that matter, how could the US government constitutionally strip a person sitting within the jurisdiction of a US District Court of their rights under the Fifth and Sixth Amendments merely because their job supports/ed (past or present tense) someone "in the field?" We'll keep following the case.

Loss of former USDB Commandant

It may interest CAAFlog readers to learn that Colonel James Harrison, Commandant of USDB from 2004 to 2006, died earlier this month here in Kabul. He was helping the Afghans establish a detention facility just northeast of the city. An apparent member of the Afghan National Army shot Col Harrison and three other service members as they left the prison. One other soldier died and two were wounded. Other ANA soldiers immediately shot and killed the attacker. Col Harrison was buried two days ago in Ft. Leavenworth, Kansas.

Although he worked a stone's throw from my office, I don't recall meeting him. My boss knew and admired him. He withdrew a retirement request for the chance to come and help out here in Afghanistan. He leaves behind a wife and three children.

SCOTUS update

The Supremes denied two more military cert petitions yesterday -- Washington v. Untied States, No. 06-10628 -- a case that doesn't appear to actually fall within the Supremes' statutory cert jurisdiction over CAAF -- and Pena v. United States, No. 06-1340.

Presumably next Monday the Supremes will announce the denial of Diaz's rehearing petition and Perez's cert petition.

Resource alert

The February issue of the Army Lawyer is now up on the Army JAG School's web site.

The issue includes a poignant tribute to Major Michael R. Martinez, an Army JAG Corps officer who was killed in a helicopter crash in Iraq. Please read this article.

The issue also includes LT J. Michael Montgomery, JAGC, USN's article, Death Is Different: Kreutzer and the Right to a Mitigation Specialist in Military Capital Offense Cases.

10 May is Obstruction of Justice Day at the Navy Yard

On 10 May, NMCCA released two opinions dealing with obstruction of justice. One was a 42-page behemoth that resolved an issue of first impression in the naval justice system. The other one was published.

United States v. Culbertson, __ M.J. ___, No. NMCCA 200000982 (May 10, 2007), is an 11-page unanimous opinion authored by Senior Judge Ritter. Culbertson was a JG convicted of twice raping a petty officer. He was also convicted of two specifications of obstruction of justice resulting from his attempts to get an eyewitness to "back up" his denial and his attempt to get another petty officer to dissuade the victim from pressing charges.

For those who like to obstruct justice, the late 1980s and early 1990s must seem like a Golden Age. First in United States v. Gray, 28 M.J. 858 (A.C.M.R. 1989), then in United States v. Asfeld, 30 M.J. 917 (A.C.M.R. 1990), and finally in United States v. Kirks, 34 M.J. 646 (A.C.M.R. 1992), the Army Court handed a surprising string of victories to soldiers convicted of obstruction of justice. Military appellants have vainly been citing that precedent ever since, but these cases' sway faded as quickly as the Humpty Dance craze. If you Shepardize Asfeld, you will see that it has been distinguished four times and limited once. I think Shepard's should adopt a new analysis term: extinguished, meaning to be distinguished out of existence. That term would apply to Asfeld.

So it is no surprise that NMCCA rejects the Gray/Asfeld/Kirks challenges to the two obstruction of justice convictions. I won't go into all of the details. Just realize that those cases seem to be well past their "sell by" dates.

NMCCA also rejects a legal and factual sufficiency challenge to the rape convictions.

Finally, NMCCA considers whether relief is appropriate where the Navy took three years to comply with NMCCA's previous order remanding the case for a new CA's action, resulting in the passage of almost six-and-a-half years between trial and redocketing. But there's no self-flagellation in this opinion, and no relief either.

New published NMCCA opinion

NMCCA posted a published opinion on NKO today: United States v. Culbertson, __ M.J. ___ NMCCA 200000982 (N-M. Ct. Crim. App. May 10, 2007). I'll post a synopsis later this evening -- unless Guert beats me to it. (I'm not sure whether upstate New York graveyards have access to NKO.)

Interesting unpublished AFCCA opinion rejecting Article 62 appeal

While the Air Force Court's opinion in United States v. Webb, No. Misc. Dkt. 2007-01 (A.F. Ct. Crim. App. May 10, 2007), is unpublished, it is well worth the read.

Staff Sergeant Webb was charged with wrongfully using cocaine. The government's case was based solely on a positive urinalysis. A panel of officer members found him guilty.

After trial, the defense moved for a new trial based on newly discovered evidence: an NJP of Webb's urinalysis observer for offenses including false official statement, filing a false claim, and wrongfully attempting to obtain $3,653.13. An Air Force Instruction precludes anyone who has been NJPed for dishonesty or making a false official statement from serving as a urinalysis observer. On the day of Webb's urinalysis, as well as several times before and after, the observer had attested -- apparently falsely -- that he had never been NJPed.

Although the defense had previously filed a discovery request seeking dirt on the prosecution's witnesses, the trial counsel didn't turn over this information until AFTER the trial. Before the Article 32, the observer had admitted to the trial counsel that he had, in fact, been NJPed. The observer testified at the Article 32 and the parties stipulated to his testimony at the actual court-martial. Six days after the trial, the TC received a fax documenting the observer's NJP. At a defense-requested post-trial session, the military judge granted a motion for new trial. The government then appealed.

The Air Force Court first ruled that the military judge had the legal authority to grant the post-trial relief. Webb, slip op. at 3. The court then reviewed the military judge's ruling for an abuse of discretion. In the course of upholding the military judge's discretion to order the new trial, the Air Force Court was critical of the trial counsel's actions: "Had the trial counsel divulged this information when he first learned of it prior to the Article 32, UCMJ, hearing or had the trial counsel followed-up and requested derogatory information in a timely manner, or even followed-up when he finally did request the information, this issue would not even be before this Court." Id., slip op. at 4.

Citing case law authorizing a new trial upon discovery of evidence that would substantially impeach critical prosecution evidence on a material matter, the Air Force Court asked: "Did the accused enjoy a full and complete trial?" Id. (citing United States v. Sztuka, 43 M.J. 261, 268 (C.A.A.F. 1995)). The Court's answer: "he did not."

Schweitzer addendum

It occurred to me this morning that CAAFlog may have as many as four readers who aren't Marine Corps or Navy judge advocates who might not immediately recognize the Schweitzer case. (We seem to have lost Army Lurker.)

Schweitzer was one of the military justice cases that arose out of the 1998 aviation accident in which a Marine Corps Prowler flying out of Aviano cut a gondola cable, resulting in 20 civilian deaths near Cavalese, Italy. Capt Schweitzer was an electronic courter measures officer on board the plane. Capt Scweitzer pled guilty to conduct unbecoming an officer and obstruction of justice for impeding the Italian government's investigation of the mishap by removing a videotape from the cockpit that had recorded the flight and ultimately burning it. A panel of officer members sentenced him to a dismissal.

Schweitzer opinion

Here's a phrase one doesn't often see: 42-page unpublished opinion. But that's what United States v. Schweitzer, No. NMCCA 200000755 (N-M. Ct. Crim. App. May 10, 2007), is. NMCCA remands the case for a DuBay hearing to determine whether the SJA and Deputy SJA were too aligned with the prosecution to properly provide the Staff Judge Advocate's Recommendation. In the alternative, NMCCA authorizes remanding the case for a new CA's action by a new convening authority upon advice from a non-disqualified SJA. The court reasoned:

The facts before us are sufficient to raise a colorable claim that the SJA who prepared the SJAR and addenda thereto became "embedded" with the prosecutorial effort in this case to an extent that it may have transformed his interest in the outcome to a personal one. Certainly, the numerous testimonials submitted in support of this assignment [of error] have given rise to a clear appearance that the SJA became an advocate for the prosecution. In order to determine whether the SJA should have disqualified himself from preparing the SJAR and the addenda thereto, we believe that further impartial fact-finding on this matter is required.

Slip op. at 28.

NMCCA rejected an argument that General Pace, then the CG of MarForLant, was disqualified from serving as CA because he was a type-II or type-III accuser. The court also held that General Pace was not disqualified from taking the convening authority's action in the case.

The section of Senior Judge Rolph's opinion for the court rejecting a UCI issue has a nice line: "Though we often recognize the military trial judge as the '"last sentinel" to protect the court-martial from unlawful command influence," United States v. Rivers, 49 M.J. 434, 443 (C.A.A.F. 1998), the judges of the service courts of criminal appeals and the Court of Appeals for the Armed Forces have clearly demonstrated that they will actively serve as 'force multipliers.'" Slip op. at 21.

NMCCA also resolves an issue of first impression in the naval justice system, making it even more odd that this 42-page opinion is unpublished. NMCCA rejected a challenge to the providence of the guilty plea, reasoning that an attempt to interfere with a foreign criminal investigation can constitute obstruction of justice. Slip op. at 28-34.

But the opinion is probably most remarkable for its sua sponte self-flagellation over its own pace in resolving the case (pun intended). In language that makes me think of Arthur Dimmesdale, NMCCA confesses:

We have carefully and thoughtfully evaluated each individual segment of post-trial delay in this case. Especially disturbing is the length of time our own court has taken to issue this opinion after briefing of the case was completed -- a period of over three and a half years. This was due in large part to the retirement of the originally assigned lead judge before that individual could author an opinion, necessitating Article 66, UCMJ, review ab initio by a newly assigned lead judge. It was also the result of this court failing to exercise diligent oversight of individual case processing timelines during much of the period of our handling of this appeal. Delay of this nature is simply inexcusable and represents an abject failure in the performance of our critical duty to provide every appellant "even greater diligence and timeliness than is found in the civilian system" as regards their appeal of right. Toohey I, 60 M.J. at 102. Though our superior court has generally applied a "more flexible" review of delay occasioned by the Courts of Criminal Appeals in the exercise of their judicial decision-making authority, see Moreno, 63 M.J. at 137 (citing Diaz, 59 M.J. at 39-40) and United States v. Dearing, 63 M.J. 478, 486 (C.A.A.F. 2006)), the gross negligence and lack of institutional vigilance we today acknowledge warrants only harsh condemnation.

Slip op. at 40.

The court nevertheless finds beyond a reasonable doubt that the delay caused no prejudice to the appellant, who pled guilty and whose sentence was limited to a dismissal. Slip op. at 41. But the court holds open the possibility of reaching a different conclusion or granting Tardiff sentence appropriateness relief when the case returns either from the DuBay hearing or with a new CA's action. Id.

Stealth Schweitzer opinion

I understand that earlier today NMCCA issued its opinion in the long-awaited case of United States v. Schweitzer. But this is the source of frustration rather than enlightenment. I have been unable to get my hands on the opinion. It appears that under the current practice of any other military appellate court, Schweitzer would be available online by now. But Schweitzer isn't even available on Navy Knowledge Online, much less NMCCA's public web site. Can anyone tell us what happened in the ruling?

Article 62 appeal appeal

We previously looked at the United States' successful Article 62 appeal in United States v. Lopez de Victoria, __ M.J. ___, No. ARMY MISC 20061248 (A. Ct. Crim. App. May 7, 2007). Lopez de Victoria's counsel wasted no time in seeking further review. CAAF's daily journal for 8 May includes the docketing notice for the petition for grant of review in United States v. Lopez de Victoria, No. 07-6004/AR. Here's my question: what statute gives CAAF appellate jurisdiction over the CCA's granting of an Article 62 appeal? That's not a rhetorical question; can anyone find a statutory grant of such jurisdiction?

If it isn't clear that such statutory authorization exists, then I would strongly recommend that counsel seeking review in that situation file a petition for extraordinary relief in the alternative to the petition for grant of review. The case would fall within CAAF's potential appellate jurisdiction, which gives CAAF the authority to issue a writ. See, e.g., In re Richards, 213 F.3d 773, 779 (3d Cir. 2000) ("jurisdiction to issue writs of mandamus under 28 U.S.C. § 1651 lies in cases in which potential appellate jurisdiction exists"). And the absence of any other legal right to seek relief from the CCA's ruling would make a writ an appropriate vehicle for seeking further review. See, e.g., Clinton v. Goldsmith, 526 U.S. 529, 537 (1999) ("[A] writ may not be used . . . when another method of review will suffice") (quoting 19 Moore's Federal Practice § 201.40).

If all of Lopez de Victoria's eggs are currently in the petition for grant of review basket, I recommend a partial ovum redistribution into a petition for extraordinary relief basket. Thoughts?

SCOTUS update update

Perez v. United States, No. 06-10998, has been docketed for the 24 May conference.

SCOTUS update

As expected, the SG has waived his right to respond to the pro se IFP cert petition in Perez v. United States, No. 06-10998.

And Diaz is going to conference yet again. His petition for rehearing on denial of cert has been distributed for the 24 May conference. Diaz v. United States, No. 06-9977. I think this will be Diaz's third SCOTUS conference.

May is Mathews month

There is a new opinion posted on CAAF's web site. United States v. Carr, __ M.J. ___, No. 06-0758/AF (C.A.A.F. May 9, 2007). Judge Stucky for a unanimous court. Incredibly, Carr affirms yet another ruling by Judge Mathews the Great, favorably quoting his opinion from below along the way. See slip op. at 8. But this isn't just any JMTG opinion; this is the U-Haul decision that first launched JMTG on the road to becoming the OCFCJ.

The Coast Guard Court returns

I can now access the Coast Guard Court's opinions here. Nothing much seems to happen during the lock-out.

Is mistake of fact as to age a possible defense in a sodomy case?

CAAF apparently enjoyed the oral argument in United States v. Wilson, No. 06-0870/AR, so much that it has invited further briefing in the case. Still unclear is whether CAAF will hold a second oral argument.

In the daily journal for 3 May, CAAF ordered briefing on the following issue:

IS THE DEFENSE OF MISTAKE OF FACT AS TO AGE AVAILABLE WITH RESPECT TO A CHARGE OF SODOMY WITH A CHILD UNDER THE AGE OF 16, ARTICLE 125, 10 U.S.C. § 825?

CAAF also invited all of the other appellate government and defense divisions to weigh in with amicus briefs.

Here's the issue that CAAF originally granted in Wilson:

WHETHER THE ARMY COURT ERRED BY AFFIRMING THE FINDINGS AND SENTENCE WHERE THE MILITARY JUDGE, IN ACCEPTING APPELLANT'S GUILTY PLEA TO SODOMY WITH A CHILD UNDER 16, INSTRUCTED APPELLANT THAT HIS HONEST AND REASONABLE MISTAKE OF FACT DID NOT CONSTITUTE A DEFENSE.

Funny, I would have guessed that the new issue would have come up in the course of briefing and arguing the old issue.

New published ACCA decision in Article 62 appeal

United States v. Lopez de Victoria, __ M.J. ___, No. ARMY MISC 20061248 (A. Ct. Crim. App. May 7, 2007).

ACCA rules for the government in this Article 62 appeal. ACCA holds that "the November 2003 Congressional Amendment . . . to Article 43, UCMJ . . . extending the statute of limitations from five years to the child victim’s twenty-fifth birthday applies retroactively to offenses committed before Congress enacted the 2003 Amendment, so long as the previous limitations period has not already expired."

Resource alert

Dana Michael Hollywood, Creating a True Army of One: Four Proposals to Combat Sexual Harassment in Today's Army, 30 Harv. J.L. & Gender 151 (2007).

Coast Guard Court continues to be anti-social

I still can't access the Coast Guard Court's opinions due to my lack of user name and password. I also can't understand why the Coast Guard Court would want to restrict public access to its decisions.

It looks like I'll have to hire a teenaged kid of one of my neighbors to hack in so I can see if the Coast Guard Court has been creating any stealth case law lately.

New published AFCCA decision

United States v. McDuffie, __ M.J. __, No. ACM 36431 (A.F. Ct. Crim. App. May 4, 2007).

In a factual sufficiency ruling, the Air Force Court knocks involuntary manslaughter and reckless driving findings down to negligent homicide where the accused strayed over the dividing line and killed a woman and her fetus in a car crash in Britain. The court ruled:

After our careful review of the evidence, we are not convinced beyond a reasonable doubt that the appellant acted with a culpable disregard for the foreseeable consequences of his actions when, whether due to his falling asleep or inattentiveness, he crossed the center line into oncoming traffic while operating his vehicle.

We do, however, conclude that the appellant failed in his duty to operate his vehicle with due care for the safety of other drivers when he crossed into oncoming traffic. In so doing, the appellant failed to exhibit the degree of care a reasonably careful person would have exercised under the same or similar circumstances. Under the facts of this case, the appellant’s operation of his vehicle immediately preceding the fatal crash amounted to simple negligence. The resulting death of a British national by the appellant’s negligent operation of his vehicle was not only tragic, but also prejudicial to good order and discipline and of a nature to bring discredit upon the armed forces. We thus find beyond a reasonable doubt that the appellant committed the offense of negligent homicide, and so hold.

Slip op. at 9 (footnote omitted).

The Air Force Court follows this ruling with an entirely unconvincing application of Sales, purporting to devine that the panel of officer and enlisted members would still have imposed a year of confinement if appellant had been convicted of negligent homicide instead of involuntary manslaughter and reckless operation of a vehicle. But in the course of the Sales analysis, the Air Force Court gives the defense the big prize: it sets aside the BCD. So while this Sales application would fare poorly under Judge Baker's compelling analysis of the law of sentence reassessment in United States v. Moffeit, 63 M.J. 40, 42 (C.A.A.F. 2006) (Baker, J., concurring), here the defense will likely want to stick with what it got rather than risking reimposition of the BCD if the defense were to win a sentence rehearing by seeking CAAF's review of the Air Force Court's Sales analysis.

Another new CAAF opinion

United States v. Rader, __ M.J. ___, No. 06-0860/AF (C.A.A.F. May 4, 2007). Judge Ryan for a unanimous court.

CAAF affirms a ruling by Judge Mathews the Great. United States v. Rader, No. ACM 36133, 2006 CCA LEXIS 164 (A.F. Ct. Crim. App. June 20, 2006) JMTG is having a good week even in retirement.

New CAAF opinion

United States v. Bare, __ M.J. ___, No. 06-0911 (C.A.A.F. May 4, 2007). Judge Baker for a unanimous court, holding that a serial child abuser can't take advantage of United States v. Berry, 61 M.J. 91 (C.A.A.F. 2005)'s restrictions on the prosecution's use of a highly dissimilar prior sex offense. (That is a greatly oversimplified version of the holding, but you get the general idea.)

Will 3-2 be the new 4-1?

CAAF's recent opinion in Adcock is the first decision in which the two new Judges join in dissent from the 3 longer sitting colleagues. Does this hearken back to the days of the 4-1 decision? I predict not. Why? The "Erdmann-factor."

Judge Erdmann was nominated to the Court by President Bush on August 1, 2002 and confirmed on October 8, 2002. As a Conservative for judicial reform (around the globe), Montana jurist, and former judge advocate, he was a relatively conservative voice when he was nominated to the Court. After his confirmation, Judge Erdmann quickly joined his Clinton appointee brethren in "supervisory" decisions such as Diaz and Brunson (notably even Judge Crawford agreed with those opinions, or at least did not dissent) . By the end of the term he was writing opinions or concurring with Judge Baker in setting out supervisory limitations on the system and giving guidance to military judges, e.g. O'Connor (a providence inquiry case enforcing the S. Ct.'s decision in Ashcroft v. Free Speech Coalition) and King (concurring with Judge Baker that Judge Crawford's opinion on waiver of confinement credit was wrong).

The transformation was not akin to Justice Blackmun's memorable dissent from denial of cert. in Callins v. Collins, "From this day forward, I no longer shall tinker with the machinery of death." But, it was certainly unexpected from the standpoint of those that only knew Judge Erdmann was a conservative judicial voice. I think the two new Judges will likely take their place on the Court and realize that CAAF's role is wholly different than the role of any other federal appellate court, Art. I or Art. III. It's not the 4th Cir., definitely not the 9th Cir., not the Court of Federal Claims, and definitely not a state appellate court. CAAF has its very own place in an imperfect system trying to teach the ever changing players in the system the right way to go about carrying out their duties in a just and fair manner, in compliance with the rules and regulations that attempt to provide service members a fair trial. Let's see how Adcock is decided three years from now.

SCOTUS update: whoops; I goofed

I was horribly wrong in my earlier post when I wrote that there aren't any pending military justice cert petitions at the Supremes. When I wrote that there were two and now there are three (not counting Salvador Diaz's petition for rehearing).

The case of Pena v. United States, No. 06-1340, will go to conference on Friday, 10 May. CAAF's opinion rejects an argument that mandatory supervised release impermissibly increases an accused's sentence.

A second pending case is Washington v. United States, No. 06-10628. Washington is an IFP filing, but not pro se. Washington is represented by an attorney from the Widener University School of Law's Veterans Assistance Program. But Washington seeks cert to review CAAF's denial of a writ appeal, see Washington v. United States, __ M.J. ___, No. Misc. No. 07-8006/AF (C.A.A.F. Jan. 23, 2007) (summary disposition), reconsideration denied, __ M.J. ___ (Feb. 22, 2007) -- which doesn't fall within the Supremes' statutory cert jurisdiction over CAAF. See 28 U.S.C. § 1259. Washington is scheduled to be denied at the 10 May conference.

The final case is brand new: Perez v. United States, No. 06-10998. Perez is an IFP pro se filing which means -- you guessed it; it's an Army case. (See my previous rant on the subject of Army DAD not filing a cert petition since 18 November 2002 here.) Hey, Army Lurker! Are you still lurking out there? If so, could you let us know whether Army DAD has a policy regarding the filing of cert petitions and, if so, what it is? Perez was granted by CAAF and summarily affirmed -- which CAAF usually does when the approved confinement is extremely long but there is no grant-worthy issue in the case. See United States v. Perez, __ M.J. ___, No. 06-0594/AR (C.A.A.F. Feb. 1, 2007) (summary disposition). The SG's response is due by 1 June 2007, though he will likely waive response well before then.

The Diaz case just won't die

Salvador Diaz, No. 06-9977, has filed a petition for rehearing in the wake of the Supreme Court's denial of his cert petition.

Adcock: a typo most foul and a slope too slippery by half

When United States v. Adcock was before the Air Force Court, it resulted in a 5-4 en banc decision. 63 M.J. 514 (A.F. Ct. Crim. App. 2006). The CAAF majority agrees with Judge Mathews the Great's dissent. But, egad, the majority misspells Judge Mathews the Great's name. See slip op. at 6.

JMTG began his dissent by observing: "This case presents the question: Must the government obey its own laws? Today, regrettably, a majority of this Court concludes it need not." 63 M.J. at 523. Why did JMTG have to retire?

But two passages from the CAAF Adcock dissent disturb me even more than the majority's misspelling of the name of the Official CAAFlog Favorite CCA Judge (OCFCJ).

First, Judge Stucky writes:

This decision . . . involves this Court in areas relating to facilities, conditions of confinement, and administrative decisions with respect to prisoners where there is no Article 13, UCMJ, violation. The President gave authority to the service secretaries to address these matters. See R.C.M. 304(f).

Huh? The majority isn't usurping the Secretary of the Air Force's authority; rather, the majority is enforcing the rules that the Secretary of the Air Force adopted. It may or may not be the right answer to enforce those rules by awarding an additional day of confinement credit, but CAAF can hardly be faulted for considering the appropriate remedy where both the trial judge and the CCA agreed that First Lieutenant Adcock's pretrial confinement conditions did violate the relevant Air Force Instruction.

In fact, if anyone should be criticized for stepping on the Secretary of the Air Force's toes, it should be the officials at Travis Air Force Base who deliberately decided to violate the Air Force Instruction. It was they, not CAAF, who usurped the authority of the Secretary of the Air Force. As JMTG explained:

The violations of AFI 31-205 cited by the appellant were well known to the government prior to her trial. The trial counsel conceded that Solano County confinement facility officials previously advised authorities at Travis AFB that the county did not comply with AFI 31-205's prohibitions against commingling pretrial detainees and convicted criminals. The government was further on notice that detainees held by the county were required to wear the same uniforms as convicts. County officials advised the authorities at Travis AFB that they had no intention of ever complying with Air Force standards on commingling or the wear of prisoner uniforms.

There were, according to the trial counsel, "numerous" challenges by detainees to the incarceration plan used by Travis AFB prior to the appellant's trial. Despite these challenges, and although the government was aware that the county facilities did not conform to the requirements of the law embodied in AFI 31-205, the government did not change its practice of using the county as its jailor. Furthermore, the record discloses no effort by any official at Travis AFB to bring the conditions of the appellant's detention by Solano County into line with AFI 31-205.

The government took no steps to move the appellant to a suitable military facility, nor did it apparently even consider doing so, until 7 May 2004. On that date, the government lost a motion for pretrial confinement credit filed by the accused in United States v. Fletcher, an unrelated case. The accused in that case was also incarcerated in the Solano County jails and subjected to substantially the same conditions as the appellant. The military judge in Fletcher awarded the accused two-for-one credit against his time spent in the county jails. According to representations by the trial counsel, the government immediately "contemplated" moving the appellant to a military confinement facility. Travis AFB officials, not named by the trial counsel, even went so far as to calculate the cost of the move. According to the trial counsel, however, those officials eventually concluded that moving the appellant to a facility that obeyed the AFI would be "more of a burden" than leaving her in one that did not; and the appellant remained locked up in the county jails.

United States v. Adcock, 63 M.J. 514, 524 (A.F. Ct. Crim. App. 2006) (Mathews, J., concurring/dissenting) (footnote omitted).

The CAAF Adcock dissent then posits a slippery slope. I find it extremely unlikely that the military justice system will actually slide down this slope, but we will find out, since the Adcock majority has already taken the first step that Judge Stucky predicts will cause the system to careen to the bottom:

[This decision] will encourage servicemembers to spend their time in pretrial confinement poring over service regulations, cataloging every possible discrepancy to raise as a reason for additional confinement credit, even if the actual conditions of confinement are not unduly harsh. At trial, military judges will face protracted litigation concerning the minutiae of confinement programs and whether a particular facility or guard violated some provision of a service regulation. Appellate court dockets will be flooded with pleas that military judges abused their discretion in not granting additional credit. Ultimately, this Court may find itself the de facto supervisor of substantive conditions of confinement involving members of the armed forces -- a function that we are exceedingly ill suited to perform.

I'll bet nothing like that happens. Trial defense counsel will certainly bone up on their respective services' pretrial confinement regs and quiz their clients about whether they have been violated. But, of course, the government has a simple way of avoiding considerable litigation in this area: by following the regs. Regarding the specifics that led to this case, one of three things will happen: (1) Travis Air Force Base will bring itself in compliance with the Air Force Instruction; (2) Travis Air Force Base will continue to choose to violate the AFI; or (3) the Air Force will change the AFI. If the first were to happen, then further litigation will be minimal. If the second were to happen, then military judges can, should, and will award extra confinement credit, meaning that the issue is unlikely to bother the appellate courts very much. Interestingly, JMTG's dissent suggests that when the Army Court issued an earlier ruling similar to Adcock, the Army followed the third route and changed its confinement regulation. See Adcock, 63 M.J. at 528 & 528 n.24 (Mathews, J., concurring/dissenting) (discussing United States v. Herrin, 32 M.J. 983, 986 (A.C.M.R. 1991) and United States v. Quintero, 54 M.J. 562, 567 (A. Ct. Crim. App. 2000)). Shepard's Citations tells us that since the regulation upon which Herrin relied was superseded in 1996, Herrin has been cited precisely twice -- by Quintero, which held that "[t]o the extent that our previous opinion in United States v. Herrin, 32 M.J. 983, relied upon provisions of Army Regulation 190-47 that subsequently have been superseded, it should no longer be followed," and by JMTG's Adcock dissent.

I'll bet that when we Shepardize Adcock in a few years, there will be no sign of the "flood" that Judge Stucky predicts. Let's make a note. On 3 May 2009, let's have a CAAFlog post reporting on the Shepardization of Adcock. Kabul Klipper -- will you write yourself a note on your cave's wall to do that for us?

New CAAF opinion

United States v. Adcock, __ M.J. ___, No. 06-0714 (C.A.A.F. May 3, 2007). Judge Erdmann for the majority; Judges Stucky and Ryan in dissent. The majority opinion explains:

We granted review in this case to determine whether there is a remedy for the conditions of Adcock’s pretrial confinement in a civilian jail, which violated several provisions of Dep’t of the Air Force, Instr. 31-205, The Air Force Corrections System (Apr. 7, 2004) [hereinafter AFI 31-205]. We find that the military judge abused his discretion in failing to award additional confinement credit under R.C.M. 305(k) and therefore direct additional confinement credit.

Id., slip op. at 3.

CAAF is still in business

It looks like CAAF won't be having a going-out-of-business sale after all. Today it granted review of two issues in United States v. Larson, No. 07-0263/AF:

I. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN HOLDING THAT APPELLANT HAD NO REASONABLE EXPECTATION OF PRIVACY IN HIS GOVERNMENT COMPUTER DESPITE THIS COURT'S RULING IN UNITED STATES v. LONG, 64 M.J. 57 (C.A.A.F. 2006)

II. WHETHER APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED BY THE SIXTH AMENDMENT AND ARTICLE 27, UCMJ, WHEN HIS CIVILIAN DEFENSE COUNSEL, IN HIS OPENING STATEMENT, DURING FINDINGS, AND AGAIN IN CLOSING ARGUMENT, CONCEDED APPELLANT'S GUILT TO VARIOUS CHARGES AND SPECIFICATIONS.

Overlooked published NMCCA opinion

On 10 April, NMCCA issue a published opinion that I had thus far overlooked. United States v. Morgan, __ M.J. ___, No. NMCCA 200401114 (Apr. 10, 2007).

Morgan's central holding is that a Sailor on leave who lies to civilian police investigating a civilian murder entirely unconnected to the Sailor's duties is not guilty of making a false official statement.

Despite setting aside the false official statement conviction, NMCCA proceeded to apply Sales and affirm the sentence as adjudged. As much as I despise Sales, I must agree with NMCCA this time. The military judge had instructed the members that the false official statement was multiplicious for sentencing purposes with one of the other offenses. So if the members followed the military judge's instructions -- and courts will generally assume that members do follow the judge's instructions -- then the sentence was not enhanced by the Article 107 conviction.

Interesting Daily Journal entry

In United States v. Jones, 61 M.J. 80 (C.A.A.F. 2005), CAAF held that economic harm was a legally cognizable form of prejudice for post-trial delay purposes. Jones was a 4-1 opinion, with Judge Crawford delivering this stinging critique in dissent:

In concluding that Appellant has suffered prejudice, the majority disregards not only our precedent requiring a showing of actual prejudice, United States v. Jenkins, but also common sense.

United States v. Jones, 61 M.J. 80, 87 (C.A.A.F. 2005) (Crawford, J., dissenting).

The Jones majority opinion observed, "We have often recognized interference with post-military employment opportunities as a form of prejudice that warrants relief for unreasonable post-trial delay. The record indicates that as a result of the unreasonable post-trial delay, Appellant has suffered this form of prejudice." United States v. Jones, 61 M.J. 80, 84 (C.A.A.F. 2005) (footnote omitted) (citing United States v. Sutton, 15 M.J. 235 (C.M.A. 1983); United States v. Gentry, 14 M.J. 209 (C.M.A. 1982) (summary disposition); United States v. Clevidence, 14 M.J. 17 (C.M.A. 1982)). The majority specifically noted that this interference with employment opportunities "demonstrates prejudice for purposes of Article 59(a), UCMJ." Id. at 85-86.

In Thomas (an opinion I found on NKO but nowhere else), NMCCA observed: "We find that the appellant was impaired in his ability to search for and apply for jobs by the dilatory post-trial processing of this case. This amounted to some harm short of legal prejudice." United States v. Thomas, No. NMCCA 200500939, slip op. at 3 (N-M. Ct. Crim. App. Aug. 30, 2006), rev'd, __ M.J. ___, No. 07-0138/MC (C.A.A.F. Apr. 27, 2007) (summary disposition). This analysis seems clearly inconsistent with Jones, which is strange considering that NMCCA's Thomas opinion actually cites Jones at one point. See id., slip op. at 1.

So it is no surprise that in a daily journal entry posted today, CAAF summarily reversed Thomas and remanded the case to NMCCA "for consideration in light of United States v. Jones, 61 M.J. 80 (C.A.A.F. 2005) and United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997)." CAAF's summary disposition is notable, however, for being unanimous -- which a similar order issued last term almost certainly would not have been. What is uncertain looking in from the outside is whether this reflects broader jurisprudential agreement or enhanced collegiality.