Tuesday, May 01, 2007

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.


John O'Connor said...

I understand that tis accused is technically guilty of misprison of a serious offense and probably of making a false statement under 18 USC 1001, but is this a case of poor use of prosecutorial discretion? The kid changed his story and told the truth three hours after signing the first (false) statement, all of which happened during a single visit to the police station. Shouldn't a kid get a mulligan when he comes clean so quickly?

Now, I'll grant that it hurts the prosecution's case because the witness has made himself highly impeachable at a trial by giving two versions of the facts. But, in a theoretical world where suspects read reported cases, wouldn't it discourage people who initially cover up to come clean if they are likely to get prosecuted once they have done so?

No Man said...

Has somjeone broken into Mr. O'Connor's CAAFlog account? We may want to report this to an administrator. Administrator, yes, this, thanks.

Amazingly the exact same argument was made to NMCCA based on the theory that CAAF had not toally rejected the exculpatory no doctrine. The Court of Appeals for the Armed Forces in Solis interpreted the scope of Art. 107, UCMJ to determine if there existed an “exculpatory no” doctrine in the military. The Court stated:

The primary purpose of military criminal law -- to maintain morale, good order, and discipline -- has no parallel in civilian criminal law. When a squadron commander, an NCO, or [military investigator] asks [a servicemember] about suspected misconduct, the purpose of the inquiry is not simply to develop a criminal case. An important purpose is to provide that [servicemember’s] commander with information about the capability of the individual to perform his or her military mission.

Military missions, whether in combat, in peacetime operations, or in training, are characterized by stress, tension, danger, and the need for rapid decisions based upon accurate information. The habits and traits of character developed in peace can make the difference between success or failure in war. Members of the armed forces are expected to give truthful answers to official inquiries, whether in garrison or in the field, in peace or in war. When they fail to meet that standard, Article 107 is available to ensure compliance. There is no exception for a servicemember who is a witness, a suspect, or an accused.

The appellant's argument was that the doctrine applied when the accused changed his denial during the same interview and the exculpatory no was not communicated to commanders in the field or in anyway inhibited the mission. Further, since Solis' rejection of the doctrine was based on a different rationale and interpreting a different statute than the S.Ct. in Brogan, Brogan was not binding precedent. Guess how NMCCA decided the issue? Case is published, United States v. Orellana.

John O'Connor said...

Maybe I just have a soft spot for stool pigeons.

And to be clear, I don't agree with an argument that there is no legal offense here. But why would you charge this when the kid recanted on the same trip to the station, particularly when you can already get rid of the kid on the UA charge.

I'll tell you what I would have done. I would have worked hard on my CA to agree to drop the misprison offenses as part of a plea bargain and go forward on the UA. Then, I would have added that act to my speech to future potential stoolies. You know, the one that goes:

"Look, I am making no promises to you whatsoever. It is true that in the past, when Marines have come forward and testified truthfully against their co-conspirators, I have on occasion written letters for the DC to use in a clemency package, but I'm not promising to do that here."

To that speech, I would add in the future, "and there was one case where I got the CA to drop false statement charges because the kid eventually told the truth."