Murphy writ explained

Over at the Sacratentorium, there's an explanation of the Murphy writ, which CAAF denied in a daily journal entry posted today. Murphy v. Smolen, __ M.J. ___, Misc. No. 07-8018/AF (C.A.A.F. July 30, 2007). So far I've swung and missed at trying to get information about the writ, so the post is quite informative. Thanks, Sacrebleumentum!

All Moreno, all the time

Thanks to the No Man, you can now read NMCCA's two recent Moreno opinions via links on the new CAAFlog web page: www.caaflog.com.

More Moreno

CAAF's Daily Journal here provides a nice glimpse at what is an on-going drama in the Navy-Marine Corps Trial Judiciary. Moreno is being retried. I don't have all the details, but there were apparently cross-extraordinary writs from the trial level to NMCCA. NMCCA decided the writs, partially barring introduction of some critical government evidence. A writ-appeal went up to CAAF on other issues. Presumably, the case now goes back to the trial level where the government will have to decide how to proceed without some of its evidence.

The really interesting part to me is NMCCA's decision appears to be classified. I cannot find it anywhere. Any dead or mythological bloggers out there that have extra-sensory powers that can help track down the missing NMCCA opinion?
(As an aside, nice to hear from you ADM Nelson, it's been a while)

This is in addition to the writ of prohibition that CAAF denied at 64 M.J. 238 on 31 Oct 2006.

Why wouldn't the opinion be posted on NKO or the website?

And remember footnote 19 in the Moreno opinion suggesting that there might be Sixth Amendment prejudice if there was a problem on retrial . . . .

Moreno appears to be a problem for the government that is not going away.

H.R. 3174 is finally on Thomas

Here's the Thomas link to Rep. Susan Davis's Equal Justice for Our Military Act, H.R. 3174.

Blue and silver replaces burgandy and gold

CAAF has issued its latest soft-cover rules booklet, as amended through August 1, 2007. Toss the old burgandy and gold edition - this edition is blue and silver.

CAAFLog will probably view this as some silent tribute by CAAF to JMTG's Air Force heritage.

CAAF grants voir dire issue

Hear, hear! CAAF will be considering whether a TC abused the voir dire process by using it as a subterfuge for seeking the members' promise to vote guilty under the facts of the case. The granted issue in United States v. Nieto, __ M.J. ___, No. 07-0495/MC (C.A.A.F. July 27, 2007), is:

WHETHER THE LOWER COURT ERRED WHEN IT HELD THAT THE MILITARY JUDGE DID NOT COMMIT PLAIN ERROR WHEN HE PERMITTED THE TRIAL COUNSEL TO ASK HYPOTHETICAL VOIR DIRE QUESTIONS THAT PRESENTED THE MEMBERS WITH SUCH DETAILED FACTS ABOUT APPELLANT'S CASE THAT THE TRIAL COUNSEL WAS IN EFFECT COMMITTING THE MEMBERS TO RETURN A VERDICT OF GUILTY PRIOR TO THE PRESENTATION OF EVIDENCE, ARGUMENT, AND INSTRUCTIONS.

Here is a link to the lower court's opinion. United States v. Nieto, NMCCA 200600977 (N-M. Ct. Crim. App. Apr. 5, 2007). I will reproduce NMCCA's analysis of this issue in full: "We find the appellant’s second assignment of error without merit." Nieto, slip op. at 4 n.2. No doubt CAAF will have something more interesting to say.

Interesting (and weird) 10th Circuit opinion on collateral review of court-martial convictions

Because the USDB is located in Kansas, the 10th Circuit is the most important Court of Appeals for developing the law of collateral review of court-martial convictions. In March, the 10th Circuit issued a potentially important (and weird) opinion on collateral review of a court-martial conviction -- but for an inmate confined at the Buena Vista Correctional Facility in Colorado, 700 miles due west of Fort Leavenworth. Ackerman v. Novak, 483 F.3d 647 (10th Cir. 2007).

Ackerman seems to suffer from a bad case of buyer's remorse. In 1995, he pled guilty at a general court-martial to rape and larceny. His PTA capped his life sentence at 27 years. ACCA affirmed and CAAF denied review. United States v. Ackerman, 46 M.J. 208 (C.A.A.F. 1996). In 2000, Ackerman filed a habeas petition claiming, among other things, that the evidence was insufficient to establish his guilt--a rather bizarre claim for a guilty plea case. The federal district court in Colorado denied and dismissed the petition and the 10th Circuit affirmed. Ackerman v. Novak, 66 Fed. Appx. 158 (10th Cir. 2003). Ackerman then filed a second habeas petition in U.S. district court. The district court denied the petition and the 10th Circuit dismissed his appeal. Ackerman v. Zenon, 150 Fed. Appx. 772 (10th Cir. 2005). The 10th Circuit held that 3 of the 5 issues raised in the second habeas petition had been raised in the first, and were barred as a successive petition. Id. at 775. The court held that the other 2 issues were not raised in the military justice system and were thus waived. Id.

Still a dissatisfied customer, Ackerman then filed a motion with the 10th Circuit seeking permission to file yet another habeas petition. This motion was the subject of the 10th Circuit's March opinion.

First, the 10th Circuit spanked Ackerman for repeatedly filing (or, in this instance, seeking to file) his habeas petition under 28 U.S.C. § 2254. The 10th Circuit told him for the third time that the proper vehicle for seeking habeas relief from confinement imposed by a court-martial is 28 U.S.C. § 2241.

The 10th Circuit then explained that under the Anti-Terrorism and Effective Death Penalty Act of 1996, a Circuit Court's permission is required to file a successive habeas petition under § 2254 or a successive federal post-conviction action under § 2255. But, the court noted, Ackerman's motion presented a question of first impression for the 10th Circuit: "whether a similar appellate-court pre-authorization requirement applies before a prisoner may file a second or successive writ of habeas corpus under § 2241." 483 F.3d at 639.

Following the AEDPA's enactment in 1996, 28 U.S.C. § 2244(a) provides:

No circuit or district judge shall be required to entertain an application for a writ of habeas corpus to inquire into the detention of a person pursuant to a judgment of a court of the United States if it appears that the legality of such detention has been determined by a judge or court of the United States on a prior application for a writ of habeas corpus, except as provided in section 2255.

If the phrase "pursuant to a judgment of a court of the United States" includes a court-martial sentence, then the 10th Circuit's permission would be needed to file a successive petition. If a court-martial does not constitute a "court of the United States," then a successive habeas petition can be filed at the district court without a requirement to first seek the Circuit Court's permission.

The 10th Circuit held that a court-martial is not "a court of the United States" for purposes of Title 28 of the U.S. Code. The court explained that 28 U.S.C. § 451 defines "court of the United States" as "the Supreme Court of the United States, courts of appeals, district courts . . . and any court created by Act of Congress the judges of which are entitled to hold office during good behavior." The court observed that 10th Circuit precedent establishes that the "good behavior" provision applies only to "judges [who] have life tenure and may be removed only by impeachment." Ackerman, 483 F.3d at 650.

Interestingly, the United States itself took the position that a court-martial is not "a court of the United States" for § 2244(a)'s purposes, which appears to be tantamount to a government concession that a military habeas petitioner can file a successive petition without the Circuit Court's permission. See id. at 651. The 10th Circuit also cited a C.M.A. case, United States v. Rachels, 6 M.J. 232 (C.M.A. 1979), though it marred its opinion by stating that the "Court of Military Appeals" is "now the United States Court of Appeals for the Armed Services." Ackerman, 483 F.3d at 651.

The 10th Circuit reasoned that "[i]n contrast to Article III judges who hold office during good behavior, Article I military judges do not hold office during good behavior." Id. at 652. Accordingly, "we conclude that, although military justice courts are established by an Act of Congress, military judges are not entitled to hold office during 'good behavior,' and are not, therefore 'court[s] of the United States' under § 451." Id. "Thus, under § 2244(a), a prisoner convicted by a military court-martial is not in detention 'pursuant to a judgment of a court of the United States.' Id. Because § 2244(a) does not apply to Mr. Ackerman, there is no basis to conclude that he needs to obtain authorization from this court to file his proposed § 2241 petition in the district court." Id. at 653.

Following this ruling, Ackerman predictably filed his third habeas petition in federal district court in Colorado. See Ackerman v. Ried, Civil Action No. 07-cv-00894-BNB 2007, U.S. Dist. LEXIS 36533 (D. Colo. 2007). Note the new respondent: in this action, the respondent is the warden of the Colorado State Penitentiary, to which Ackerman had apparently been transferred from the Buena Vista Correctional Facility (also a state confinement facility) at some point. The habeas petition raised 6 issues. The magistrate judge ruled that 5 of the 6 issues were improperly raised because they had already been resolved by Ackerman's 2 previous habeas actions.

The remaining issue concerned Ackerman's place of confinement. He asserted that he is being held in a state prison contrary to 18 U.S.C. § 4083, which provides in relevant part: "Persons convicted of offenses against the United States or by courts-martial punishable by imprisonment for more than one year may be confined in any United States penitentiary."

Concerning this claim, the magistrate judge ruled:

As for Claim Five, Applicant fails to assert exhaustion of the claim. He simply states that he has raised the claim in lower courts, that the claim was ignored, and that the military courts will not do anything while he is held at the DOC. Furthermore, the Court finds no federal statute identified as 18 U.S.C.A. § 4083, upon which Applicant relies for his assertion that he should be returned to the United States Army's custody. Mr. Ackerman is directed to amend the Application, assert only Claim Five, and state what federal rights are being violated and how he has exhausted his remedies in this claim.

I'm not sure what the magistrate judge is trying to say. It reads to me as if he's saying there is no such statute at 18 U.S.C. § 4083. But that can't be what he means, since obviously there is such a statute. Alternatively, he may be saying that he doesn't understand what § 4083 has to do with Ackerman's claim -- but that also seems fairly self-evident. Ackerman seems to be attempting to use § 4083's authorization to confine a court-martial convict in a United States penitentiary to create a negative inference that a court-martial convict may not be confined in a state (rather than federal) penitentiary. Ackerman may be right and is probably wrong, but he does seem to assert a claim that his rights under a federal statute have been violated.

This case continues to demonstrate that habeas claims of court-martial convicts under § 2241 fly under the radar, unable to attract attention from either the Supreme Court (see United States ex rel. New v. Gates, 127 S. Ct. 2096 (2007)), or Congress. Sometimes, such as in the Ackerman case, this state of neglect benefits the convict. Sometimes, such as in Congress's omission of a counsel right for a military death row inmate seeking Article III habeas review (while according such a counsel right to state and federal death row inmates, 18 U.S.C. § 3599(a)(2)), this neglect harms the convict. But whether the effect is good or bad, such matters should be the product of reasoned choice, not blissful ignorance.

Throughout the history of military justice, attention and reform has come largely as the result of capital cases. The Ansell-Crowder dispute is probably the best example of this phenomenon, but the Somers mutiny (if it was a mutiny), Burns v. Wilson, 346 U.S. 137 (1953), and Reid v. Covert, 354 U.S. 1 (1957), are among many other examples. My guess is that if a military capital case ever enters Article III habeas review, that is when the Supreme Court, and possibly even Congress, will finally pay attention to these issues.

H.R. 3174 watch

H.R. 3174, the Equal Justice for Our Military Act, would amend both 28 U.S.C. 1259 and Article 67a of the UCMJ. Apparently the former amendment is paramount, because the bill has been referred to the House Judiciary Committee rather than to HASC, of which the bill's sponsor (Susan Davis) is a member and one of the bill's co-sponsors (Ike Skelton) is the chairman. None of the four current co-sponsors is a House Judiciary Committee member.

We'll continue to track the bill's progress.

U.S. district court rejects Loving's FOIA suit

In a published opinion, Judge Ellen Segal Huvelle of the U.S. District Court for the District of Columbia on Thursday rejected Army Private Dwight Loving's FOIA suit seeking documentation concerning the Executive Branch's consideration of whether to approve his death sentence. Loving v. Department of Defense, __ F. Supp. 2d ___, Civil Action No. 06-1655 (ESH), 2007 WL 2137759 (D.D.C. July 26, 2007). By the time of the court's ruling, the litigation had boiled down to 4 documents:

[(1)] A 31-page memorandum from the Judge Advocate General of the Army to the Secretary of the Army (forwarded to the President pursuant to R.C.M. 1204(c)(2)) reflecting the Judge Advocate General's analysis of plaintiff's case and recommendation as to whether the Secretary should recommend that the President approve plaintiff's death sentence, dated January 13, 2004;

[(2)] A one-page memorandum addressed from the Secretary of the Army to the President "containing the [Secretary's] recommendation regarding whether or not PVT Loving's death sentence should be approved," dated November 8, 2004;

[(3)] A one-page memorandum from the Secretary of Defense to the President forwarding plaintiff's military court-martial capital case to the President for action, dated January 8, 2006;

[(4)] An undated one-page memorandum from the DoD Office of the General Counsel to the Counsel to the President concerning "The President's Action in Two Military Capital Cases."

DOD argued that it didn't have to disclose these documents because they fell within FOIA Exemption 5, which permits the withholding of "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552(b)(5). The court agreed, concluding that the first three documents fall within the presidential communications privilege while the fourth falls within the deliberative process privilege.

We previously discussed the case here, on the sixth day of CAAFlog's existence.

ACCA rules a lab report is testimonial hearsay for Crawford purposes

ACCA has released a significant published opinion. United States v. Williamson, __ M.J. ___, No. ARMY 20030855 (A. Ct. Crim. App. July 25, 2007).

ACCA holds "that, under the circumstances of this case, [a] laboratory report [identifying a substance as marijuana and providing its weight] is testimonial under Crawford [v. Washington, 541 U.S. 36 (2004),] and, therefore, was improperly admitted under Mil. R. Evid. 803(6)." Williamson, slip op. at 2.

ACCA emphasizes that this holding "is limited to the facts of this
case." Id., slip op. at 18. The court explains that it bases its holding "primarily on the fact that the 'statement' is a post-apprehension laboratory report, requested after local police arrested appellant." Id., slip op. at 20 (footnote omitted). ACCA explains that "although we find generating the USACIL forensic report akin to an 'objective cataloging of unambiguous factual matters[,]' Rankin, 64 M.J. at 352, i.e., the identity and amount of a controlled substance, we also find the laboratory technician's 'statements' responded to a law enforcement inquiry, and the 'primary purpose for making, or eliciting, the [report]' was to produce evidence 'with an eye toward trial,' i.e., the report was produced months after appellant's arrest, and after the government preferred the charge alleging narcotics possession with intent to distribute. Id." Williamson, slip op. at 20 (footnote omitted).

Despite finding constitutional error, ACCA held that the erroneous admission of the lab report was harmless beyond a reasonable doubt. Id., slip op. at 26.

The opinion includes the following implausible observation: "Although the USACIL is a division of the CID (the Army's law enforcement branch), the USACIL does not function as a prosecution support tool; rather, by its own mission statement, USACIL exists to render neutral support to the CID by 'examin[ing] crime-related evidence to assist investigators in solving crime.' U.S. Army Criminal Investigation Command, at http://www.cid.army.mil/mission2.htm (last visited 23 July 2007) (emphasis added)." Id., slip op. at 7 n.8. If only we had any Army readers, I would ask if any of them believed that USACIL is neutral and doesn't function to support the prosecution.

Extraneous question of the day: Why on earth does the Williamson opinion include the Registered Trademark symbol after its references to U.S. Postal Service Express Mail and a FedEx USA Airbill? See id., slip op. at 5.

CAAF grants review of indecent assault/controlled substance distribution issues

As noted and discussed over in the Sacramentorium, today's CAAF daily journal update included a grant of review in United States v. Mitchell, __ M.J. ___, No. 07-0225/MC (C.A.A.F. July 25, 2007). CAAF granted one issue raised by the defense and specified another:

WHETHER APPELLANT'S GUILTY PLEA TO INDECENT ASSAULT AS A PRINCIPAL WAS IMPROVIDENT WHERE THE PROVIDENCE INQUIRY DOES NOT ESTABLISH THAT APPELLANT POSSESSED THE SPECIFIC INTENT TO GRATIFY HIS LUST OR SEXUAL DESIRES.

WHETHER APPELLANT'S GUILTY PLEA TO DISTRIBUTING MARIJUANA WAS PROVIDENT WHEN APPELLANT TOLD THE MILITARY JUDGE THAT THE SUBSTANCE HE DISTRIBUTED WAS NOT MARIJUANA.

When the case was before NMCCA, it generated an unpublished per curiam opinion by the trio of Wagner, Vincent, and Stone. United States v. Mitchell, No. NMCCA 200501185 (N-M. Ct. Crim. App. Sept. 18, 2006) (per curiam) [No Man: available here (and yes, there is no citation to legal authority in this paragraph)]. The opinion didn't address the second, specified, issue, but provided this analysis of the first:

The appellant pleaded guilty, as an aider and abettor, to the offense of indecent assault upon Ms. C by encouraging another Marine to have nonconsensual intercourse with Ms. C. The actual perpetrator of the indecent assault against Ms. C was another Marine, LCpl Beckham. On appeal, the appellant now claims that his plea of guilty was improvident because the military judge did not elicit facts that demonstrated he encouraged LCpl Beckham to commit the indecent assault against Ms. C with the specific intent to gratify the appellant's lust or sexual desires. We disagree. There is no requirement that the appellant must have intended to gratify his, that is, the appellant's, lust or sexual desires when he encouraged LCpl Beckham to commit the indecent assault. Such a requirement would essentially do away with all aider and abettor liability for specific intent offenses. Rather, the appellant was required to admit that he intended that LCpl Beckham commit the indecent assault for the purpose of satisfying LCpl Beckham's lust or sexual desires. Since the providence inquiry and the stipulation of fact make it abundantly clear that the appellant intended LCpl Beckham to have sexual intercourse with Ms. C, we find that the appellant's plea of guilty was providently made. This assignment of error is without merit.

Id., slip op. at 2.

New NMCCA published opinion on communicating a threat

While trolling on NKO tonight, I bumped into a recent NMCCA published opinion that isn't yet on NMCCA's public web site or LEXIS. I've asked the No Man whether he can figure out how to post it on the new CAAFlog web site he set up. In the meantime, I will provide my unfrozen caveman lawyer synopsis of the case.

United States v. Wright, __ M.J. ___, No. NMCCA 200602491 (N-M. Ct. Crim. App. July 17, 2007) [No Man: US v. Wright is available here], is a Senior Judge Geiser opinion, joined by Judges Mitchell and Bartolotto. Corporal Wright pled guilty to various offenses at a special court-martial, including communicating a threat. NMCCA holds that Wright's "plea to the Article 134, UCMJ, offense of communicating a threat was improvident in that the charged threatening words were not wrongful because the words communicated the appellant's current mental state to a mental health provider for the purpose of obtaining a mental health evaluation and treatment." Id., slip op. at 2.

This charge arose from statements that Cpl Wright made to a doctor at the Balboa Naval Hospital's psychiatric ward, where Wright sought assistance for mental health issues the day before he was scheduled to deploy to Iraq. Wright told the doctor that he anticipated being treated badly by his chain of command when he rejoined his unit in Iraq. He told "the doctor that 'if provoked in any way' he would 'just snap and los[e] it and lose control' of himself." Id. Cpl Wright explained that he believed he would 'injure his commanding officer, sergeant major, gunnery sergeant and staff sergeant by 'beating them to a pulp with his E-tool shovel.'" Id.

In finding the plea to communicating a threat improvident on that factual basis, NMCCA reasoned:

There is no question that the literal language charged in the specification was threatening in nature. The circumstance of the utterance, however, gives us pause. The appellant’s uncontradicted statements during the providence inquiry indicate that he was seeking assistance from a mental health care provider about his current mental state of frustration, anger, and anxiety and how he believed this mental state would affect his future actions. While we see nothing to suggest that the appellant’s words were said in jest or were idle banter, it does appear that the words were spoken to communicate the appellant’s current mental state to a health care provider for the purpose of obtaining evaluation and treatment.

Id. at 3.

After reviewing several CAAF/CMA cases dealing with communicating a threat, NMCCA announced this decisional rule: "We hold that threatening statements (1) uttered in the context of an exchange of information with medical personnel, (2) which express the declarant's current mental state or distress, and (3) which are uttered for the purpose of obtaining medical evaluation and treatment are not wrongful and do not constitute communicating a threat under Article 134, UCMJ." Id. at 4.

The court's opinion is both reasonable and well-reasoned. While it is probably silly to assume that what NMCCA writes will actual influence Marines' behavior, the last thing we should do is discourage Marines and other servicemembers from expressing hostility to their command to mental health professionals. Perhaps the opinion will actually have some positive effect by letting mental health professionals know that the correct response to a Marine who makes such a statement is not to have him prosecuted.

Unfortunately, having rendered such a fine opinion, NMCCA immediately tarnishes its luster by applying the abominations of military law -- Sales and Peoples -- to uphold the adjudged and approved sentence despite having set aside the communicating a threat conviction.

I also noticed something in the Wright decision that I don't remember seeing in previous NMCCA opinions: it lists the SJA who signed the SJAR. Is that now a common feature in NMCCA opinions?

Link to pdf of H.R. 3174

As you know, I am an unfrozen caveman lawyer and I don't understand your complicated ways of "computers," "internets," and "pdfs." Fortunately, the No Man does. He has created a new CAAFlog web site, on which he has posted a pdf of H.R. 3174. Here's a link. Merci, No Man!

BZ for H.R. 3174!

By adding "or denied" to 28 U.S.C. 1259(3), the Equal Justice for Our Military Act (full text of the bill available here) would allow the Supreme Court to grant certiorari in a case reviewed by a CCA but in which CAAF denied review. CAAF would no longer serve as the Supreme Court's bouncer, keeping undesirable-looking characters from filing for cert. By adding "or denied" to 28 U.S.C. 1259(4), the bill would allow a cert petition to be filed where a petitioner unsuccessfully sought extraordinary relief from CAAF. Both of these, but especially the former, would be welcome changes to the military justice system. As Tumey v. Ohio, 273 U.S. 510 (1927), demonstrates, it is literally possible for any civilian convicted of unlawfully possessing intoxicating non-alternative beverages and fined $100 to take his or her case all the way to the Supreme Court. Yet a servicemember can be effectively barred from seeking Supreme Court review of serious cases resulting in lengthy confinement if CAAF denies his or her petition--as CAAF does in most cases. This legislation would fix that.

As we have explored in nauseating detail, if enacted this change would be unlikely to provide much -- or possibly any -- relief to accused in the military justice system. But servicemembers should have the same right to have their cert petitions denied that their civilian counterparts have. H.R. 3174, the Equal Justice for Our Military Acdt, is aptly named.

Representative Davis's floor statement

From yesterday's Congressional Record:

INTRODUCTION OF THE EQUAL JUSTICE FOR OUR MILITARY ACT OF 2007

______


HON. SUSAN A. DAVIS

of California

in the House of Representatives

Wednesday, July 25, 2007

Mrs. DAVIS of California. Madam Speaker, I rise today to introduce the Equal Justice for Our Military Act of 2007--a bill that will give our servicemembers equal access to the United States Supreme Court. We all know that when American men and women decide to serve their nation in the Armed Forces, they make many sacrifices--from lost time with their families to irreplaceable losses of lives and limbs. However, most Americans are not aware that active-duty servicemembers also sacrifice one of the fundamental legal rights that all civilian Americans enjoy.

Under current law, members of the military who are convicted of offenses under the military justice system do not have the legal right to appeal their cases to the U.S. Supreme Court. It is unjust to deny the members of our Armed Forces access to our system of justice as they fight for our freedom around the world. They deserve better.

As the Chairwoman of the Subcommittee on Military Personnel, a long-time advocate for servicemembers, and a representative of San Diego, one of the largest military communities in the nation, I feel an obligation to fight to ensure that the members of our military are treated fairly. Current law weights the playing field in favor of the government, granting the automatic right to Supreme Court review to the Department of Defense whenever a servicemember wins his or her case, but denying servicemembers that same right when the government wins a conviction against them in almost all situations. This is just unfair. In the 109th Congress, I introduced legislation to grant our men and women in uniform access to the Supreme Court in certain situations.

Today, I am re-introducing this legislation in expanded form, to allow service members in a broader set of circumstances the right to Supreme Court appeal. This approach has been endorsed by the American Bar Association, the Military Officers Association of America, and many other advocates. I believe strongly that it is fundamentally unjust to deny those who serve on behalf of our country in the military one of the basic rights afforded to all other Americans. I hope that you will stand with me in support of this legislation to attain equal treatment for those who fight for us.

Text of the Equal Justice for Our Military Act, H.R. 3174

A BILL
To amend titles 28 and 10, United States Code, to allow for certiorari review of certain cases denied relief or review by the United States Court of Appeals for the Armed Forces.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘"Equal Justice for Our Military Act of 2007".

SEC. 2. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES.
(a) IN GENERAL.—Section 1259 of title 28, United States Code, is amended—
(1) in paragraph (3), by inserting "or denied" after ‘"granted’"; and
(2) in paragraph (4), by inserting "or denied" after ‘‘granted’’.
(b) TECHNICAL AND CONFORMING AMENDMENT.—
Section 867a(a) of title 10, United States Code, is amended by striking "The Supreme Court may not review by a writ of certiorari under this section any action of the Court of Appeals for the Armed Forces in refusing to grant a petition for review.".

Military justice cert reform bill introduced

Yesterday Representative Susan Davis (D-Cal.) introduced the "Equal Justice for Our Military" bill, H.R. 3174. Here's a link to her press release. Unfortunately, the bill itself is not yet available from Thomas, but a list of co-sponsors is. Significantly, one of the four co-sponsors is House Armed Services Committee Chairman Ike Skelton.

Here's a link to an article about the bill in today's San Diego Union-Tribune.

CA ya later?

Greetings from downee ocean,

The extensive commentary to the Military Justice Doldrums post includes a discussion of whether the convening authority's action should be retained or thrown on the scrapheap of military justice history, along with branding irons and the convening authority's power to return a case to the court-martial to enhance the sentence.

As usual, I agree with JO'C. Eliminating the CA's action would strip the commander of his or her power to support mission accomplishment by, for example, commuting the sentence of a servicemember performing an operationally required function. It would also eliminate the CA's ability to ameliorate unduly harsh sentences. There is a counterargument, of course: the CA's action provides an opportunity for a commander to reduce sentences below what they should be in a case involving an unpopular or low-status victim. But when put on the balance against the CA action's positive effects, I think the balance tips in its favor.

As many of you know, when I evaluate potential changes to the military justice system, I always ask: how would this change affect the military death penalty? The answer here is: not well. Since the current military death penalty system came into effect in 1984, there have been 15 known cases in which a death sentence was adjudged. In 2 of those 15, the CA commuted the adjudged death sentence to confinement for life. (Interestingly, both of those were Marine Corps cases -- Turner and Gibbs.) Given the record of relative futility of death penalty cases on appeal (9 of the 11 death sentences that have completed appellate review reversed and 1 of the remaining 2 -- Loving -- on the DuBay trail to reversal), it makes sense to let a CA avoid committing the time and money that the United States would have to devote to what would probably ultimately be a failed attempt to execute the accused.

Let's look at an interesting comparative law example. In Findlay v. United Kingdom, 24 Eur. Ct. H.R. 221 (1997), the European Court of Human Rights invalidated the old British court-martial system, largely because it failed to provide an independent tribunal due to the CA's selection of the court-martial members. The decision was correct, in line with the Supreme Court of Canada's decision in R. v. Genereaux, 1 S.C.R 259; 70 C.C.C. (3d) 1 (S.C.C.) (1992), and should be emulated by the U.S. judiciary. But in response to a preliminary Findlay ruling by the now-defunct European Commission on Human Rights, Report of the Commission on Human Rights, Application No. 22107/93, Alexander Findlay (1995), the U.K. eliminated the position of convening authority and the CA's action with it. See Armed Forces Act 1996, ch. 46. So European human rights rulings designed to help military accused had the paradoxical effect of leading to the elimination of a court-martial procedure that could only help an accused by occasionally relieving a servicemember of a harsh sentence.

In my view, the Findlay changes were appropriate, but the collateral effect of killing the CA's action was unfortunate. I vote for moving the power to select members to a neutral authority not connected with the same authority who decides whether to prosecute while retaining the command's ability to commute sentences.

The Military Justice Doldrums...

In years past, at this time in the summer the Court of Appeals for the Armed Forces would finally be issuing opinions of some precedential value, while still holding the major decisions until September 30th. But with Chief Judge Effron keeping the trains running on time, and with the next decision not expected until October at the very earliest, military justice is adrift in the doldrums.

With a BoSox World Series appearance all but guaranteed, I decided to peruse the latest opinions out of the Courts of Criminal Appeals. I came across an interesting opinion from the N-MCCA written by Judge Couch the Wise (JCTW). United States v. Rodriguez, No. 9900997 (N-M. Ct. Crim. App. July 17, 2007), is an unpublished opinion. What makes it interesting, is that two of the judges, Judges Vollenweider and Stolasz, felt it necessary to write a separate concurring opinion on the issue of post-trial delay in an unpublished decision.

The case involved a prior remand from the N-MCCA. Because his original court-martial took place in 1998, Gunnery Sergeant Rodriguez raised the issue of post-trial delay as one of his seven assignments of error. As a member of the court that bore the brunt of the CAAF’s decision in Moreno, JCTW begrudgingly enforced the decision. When discussing the Appellant’s argument that much of the delay was due to his previous appellate defense counsel’s “other caseload commitments,” JCTW had this to say: “We note that appellant’s claim is based upon his appellate defense counsels’ assertions contained in their ‘boilerplate’ motions for enlargement of time, and not upon any sworn affidavits or other sources of evidence.” According to the Court, “the record contains no explanation for this period of delay other than the pro forma averments of counsel in their motions for enlargement of time.” Those familiar with the Moreno decision will recall that these “boilerplate” and “pro forma” assertions were found to be “sufficient evidence” that the delay was due to the manning at the appellate defense division during the first half of this decade in that case. But, perhaps because he too was familiar with the Moreno decision, JCTW followed the decision. “However, based upon the precedent set by our superior court, we are constrained to not hold the appellant” responsible for this delay. It is here that the opinion gets interesting.

Judges Vollenweider and Stolasz wrote separately to add their thoughts on CAAF’s decision in Moreno, thoughts that JCTW was apparently unwilling to include in the Court’s opinion. While the two judges agreed that the United States had a responsibility to properly staff the appellate defense division, they took issue with the “boilerplate unsworn statements from appellate defense counsel that other caseload commitments prevent the filing of a brief” at issue in Diaz, Toohey, Moreno, and Rodriguez. According to the two judges, such averments of counsel do not constitute a record “from which to draw a rational determination that the Government failed in its duty” to staff the appellate defense division. In a footnote, they “observed” that the Federal Circuit Court Cases cited by the CAAF in Moreno were “replete with developed facts, not mere assertions of counsel.” Judge Vollenweider then claimed that the Court itself had solved the post-trial delay problem: “My sense is that as this court’s rules have changed to require recitation of specific facts in order for a party to establish good cause for an enlargement of time, counsel have focused on proper prioritization of their time, resulting in far fewer motions for excessive enlargements.”

Because neither Judge Vollenweider nor Judge Stolasz were on the N-MCCA in 2003 when Diaz v. JAG of the Navy, 59 M.J. 34 (2003), was decided, they should be forgiven for not reading the appendices to the decision, which are now published in the Military Justice Reporters and are replete with “developed facts” including the caseload of appellate defense counsel, the methods those attorneys used to manage that caseload, data on filing times, the funding and appointment system, and a letter from the Chief Judge of the N-MCCA, Colonel Dorman, begging the Judge Advocate General for more resources. They would also have the letter from the Division Director of Appellate Defense, Captain Cooper, pleading for more resources and the adequate manning of the defense division.

Unfortunately, despite four years of litigation and warning shots from the CAAF in Diaz and Toohey, the appellate defense division was not consistently kept at full strength until after the Moreno decision last term. Not surprisingly, the backlog vanished in less than a year. This had nothing to do with the rules of the N-MCCA, which those at the appellate defense division tell me only generated more work, but rather the division being staffed with eighteen active duty counsel instead of the seven serving in the division when Diaz was announced. The average caseload at the division is now roughly ten cases per attorney and not the seventy to one hundred cases carried by each attorney in 2003-2004.

What is truly disturbing is that, on a record so developed as the one in Rodriguez (admittedly through the voluminous documents regarding the state of the division available in the military justice reporters), two judges of the N-MCCA still believe that post-trial delay was caused by lethargic counsel who were willing to perpetuate a fraud on the military justice system by filing fraudulent enlargements and by an N-MCCA who was complicit in the whole affair by not changing its rules. It is nothing less than a travesty that the N-MCCA did not change its rules sooner, before Marines like Moreno served all of their lengthy prison sentences before being pronounced victorious in a meaningless ritual.

All things reconsidered

I've managed to claw my way back onto the Internet.

We have previously noted the appellate government divisions' proclivity for reconsideration petitions. Monday's daily journal update included another denial of another government motion to reconsider. United States v. Gardinier, __ M.J. ___, 06-0591/AR (C.A.A.F. July 19, 2007).

Let's look at some numbers. By my count, the various appellate government divisions lost just 19 of the 55 cases decided by full opinion by CAAF last term. (Simon, Lee, McAllister, Tate, Clay, Hardisson, Briggs, Terry, Brooks, Beatty, Wise, Adcock, Gardinier, Lewis, Pflueger, Thomas, Wilson, Albaaj, Resch. Please let me know if I missed any.)

So far, CAAF has denied government petitions to reconsider 4 of those. Gardinier; United States v. Brooks, 65 M.J. 12 (C.A.A.F. 2007); United States v. Tate, 64 M.J. 441 (C.A.A.F. 2007); United States v. McAllister, 64 M.J. 428 (C.A.A.F. 2007). So that's 2 by Army GAD (Gardinier and McAllister), one by the Navy-Marine Corps Appellate Government Division (Tate), and one by the Air Force Appellate Government Division (Brooks).

I'm not criticizing GAD seeking for reconsideration of CAAF's Gardinier opinion, which left me scratching my head a bit. But government motions to reconsider in 21% of the cases in which it lost seems like a rather high rate. The spate of government motions seeking reconsideration of opinions issued at the end of last term also suggests that the 2007 term's rate may not have been atypical.

Major Writ

Since E-Blogger just lost all the nice links I had for this post, I will keep this short. Anyone know why Major Phillips was briefly back at CAAF after losing his argument to set aside his 5 year sentence adjudged in a fine enforcement hearing? See today's CAAF Daily Journal. CAAF summarily denied, guess it was even less interesting than his appeal, see lukewarm commentary here.

More Article 2 analysis

The recent expansion of court-martial jurisdiction over civilians accompanying our forces in the field in contingency operations is generating a good deal of analysis. We recently noted a law review article questioning the constitutionality of this expanded court-martial jurisdiction. Now NIMJ has posted a link to a Congressional Research Service report called, "Private Security Contractors in Iraq: Background, Legal Status, and Other Issues" (July 11, 2007). Pages 20-24 of the report include an interesting analysis of the constitutionality of the recent change to Article 2 and how it should be interpreted.

The report notes that the amendment "is likely to be challenged on
constitutional grounds." Id. at 20. The report notes the Supreme Court's observation in Madsen v. Kinsella that in occupied areas, "the Army commander can establish military or civilian commissions as an arm of the occupation to try everyone in the occupied area, whether they are connected with Army or not." Id. at 22 (quoting Madsen v. Kinsella, 343 U.S. 341, 35, & n.10 (1952)). The report's authors reason that "[i]f Madsen remains valid, if and for so long as the United States is considered an 'occupying power' in Iraq, it may be acceptable under the Constitution to subject DOD contractors there to military jurisdiction." CRS Report at 22.

The report also helpfully observes that the "phrase 'serving with or
accompanying' the forces was historically construed to require that the civilian's 'presence [must be] not merely incidental to, but directly connected with or dependent upon, the activities of the armed forces or their personnel.'" Id. at 23 (quoting United States v. Burney, 6 C.M.A. 776, 788, 21 C.M.R. 98, 110 (C.M.A. 1956)). "The phrase 'in the field' means serving 'in an area of actual fighting' at or near the 'battlefront' where 'actual hostilities are under way.'" Id. (quoting Reid v. Covert, 354 U.S. 1, 35 (1957)). "Whether an armed force is 'in the field' is 'determined by the activity in which it may be engaged at any particular time, not the locality where it is found.'" Id. (quoting Burney, 6 C.M.A. at 787, 21 C.M.R. at 109). The authors therefore conclude that "contractors will not be subject to military jurisdiction merely because of their employment in Iraq. They might, however, be subject to jurisdiction even if the conduct occurs outside of Iraq, so long as there is sufficient connection to military operations there." Id.

Going downee ocean, hon

In the Baltimore dialect, to express an intention to travel to Maryland's Atlantic beaches, one would say, "I'm going downee ocean." (I have no idea why.) Tomorrow I'm going downee ocean for a week. I'm unsure what kind of computer access I'll have downee -- er, down -- there. So if you don't hear from me for a week, that's why.

Murphy's law

Sacramentum has posted a fascinating piece on a new extraordinary writ that popped up on CAAF's 18 July daily journal, which was posted today.

I'm sure you will recall the recent controversy about the Air Force judge advocate colonel (and BGen select!) who had been disbarred not once, but twice. See, for example, our post, "I'm not just a JAG, I'm also a client." As Sacramentum discusses in detail here, Colonel Murphy is being court-martialed. Now his counsel are seeking extraordinary relief against the CA and the Article 32 IO.

Does our Air Force reader know who the defense counsel is/are and what the writ is about? Fitz? Fitz?

There is a conversation going on over in the Sacrementorium about whether CAAF has jurisdiction to consider such a writ. That directly implicates a recent lecture I gave -- after which I've been vacillating about whether to take the time to turn it into an article. This now gives me a push in that direction. (Plus, I'm changing jobs soon and will be unemployed for six days in between. At least that would give me something to do.)

There seems to be little question that CAAF believes it has extraordinary relief jurisdiction over Article 32 investigations. Consider, for example, United States v. Morton, 65 M.J. 2 (C.A.A.F. 2007), where CAAF granted a motion to stay proceedings in an Article 32 investigation. While CAAF ultimately denied the request for extraordinary relief, United States v. Morton, __ M.J. ___, Misc. No. 07-8009/CG (C.A.A.F. Apr. 4, 2007), merely ordering the Article 32 investigation to stop is an exercise of extraordinary relief jurisdiction. In one prominent pre-Clinton v. Goldsmith case, CAAF ordered an Article 32 investigation open to the public and press. ABC v. Powell, 47 M.J. 363 (C.A.A.F. 1997).

CAAF is almost certainly correct in believing that it has jurisdiction in such cases. The concept that appellate courts have All Writs Act power over cases falling within their potential appellate jurisdiction is well established. See, e.g., FTC v. Dean Foods Co., 384 U.S. 597, 603 (1966) (holding that the All Writs Act permits an appellate court to grant extraordinary relief where "an appeal is not then pending but may be later perfected"). This concept seems to apply fully to military appellate courts. Consider what the Supremes said in Noyd v. Bond: "[W]e do not believe that there can be any doubt as to the power of the Court of Military Appeals to issue an emergency writ of habeas corpus in cases, like the present one, which may ultimately be reviewed by that court. A different question would, of course, arise in a case which the Court of Military Appeals is not authorized to review under the governing statutes." 395 U.S. 683, 695 n.7 (1969). The Murphy 32 certainly seems to qualify as a case that "may ultimately be reviewed by" CAAF. Ergo All Writs Act power is available.

Scramentum points unfavorably to Unger v. Ziemniak, 27 M.J. 349 (C.M.A. 1989), where CMA said it was "convinced that we have jurisdiction to grant extraordinary relief" in the case, even though under the UCMJ at the time the case never could have reached CMA on appeal. Id. at 355. But Gene Fidell's invaluable CAAF Rules Guide makes an important point. (It seems to me that Gene needs a CAAFlog nickname. Eugene Fidell the Sagacious (EFTS)?) If Unger v. Ziemniak were to arise today, it would fall within CAAF' potential appellate jurisdiction. CMA issued Unger v. Ziemniak on 27 January 1989. Ten months and a day later, the National Defense Authorization Act for Fiscal Years 1990 and 1991 was enacted. Pub. L. No. 101-189, 103 Stat. 1576 (1989). Section 1302(a) of that Act greatly expanded CMA's potential appellate jurisdiction. As EFTS explains:

The Court's jurisdiction over "nonreviewable" (subjurisdictional) courts-martial (i.e., general and special courts-martial in which there is no punitive discharge and summary courts-martial, none of which are subject to automatic review by a Court of Criminal Appeals) changed dramatically in 1989. . . . Section 1302 . . . provided that non-bad-conduct discharge special courts-martial and summary courts-martial can also be referred to a Court of Criminal Appeals. . . . Such cases are therefore now also potentially subject to review by [CAAF] either by certificate for review or on petition by the accused.

Eugene R. Fidell, Guide to the Rules of Practice and Procedure for the United States Court of Appeals for the Armed Forces 20 (12th ed. 2006).

So it appears that not only is an Article 32 proceeding within CAAF's potential appellate jurisdiction, so is a summary court-martial. But despite the breadth of its jurisdiction, CAAF exercises it extremely rarely, as we reviewed here. Indeed, in my view (and, much more importantly, Judge Erdmann's view), Morton represents a case where CAAF exercised its extraordinary writ jurisdiction over Article 32s too narrowly.

Article 2 article

The Spring 2007 issue of the Journal of the National Association of Administrative Law Judiciary includes an article on the expansion of court-martial jurisdiction to civilians accompanying our forces in the field during contingency operations, as well as in time of war. Katherine Jackson, Not Quite A Civilian, Not Quite A Soldier: How Five Words Could Subject Civilian Contractors In Iraq And Afghanistan To Military Jurisdiction, 27 J. Nat'l Ass'n L. 255 (2007). The author concludes that the courts will likely strike down this expansion of court-martial jurisdiction:

The determination of whether the provision is constitutional depends on whether the Supreme Court determines either: 1) that civilian contractors are members of the "land or naval Forces" under the Constitution, or, 2) that contingency operations are so akin to war that the infringement on individual rights is justified by the circumstances. In light of precedent, neither of these outcomes seem likely.

Sorry, No Man -- I did a word search in the article, and "Apprendi" doesn't appear. So the article reaches only one of your two "interests."

A provocative take on Pena

CAAF's 16 July daily journal includes a summary disposition remanding a case for further consideration of the sentence under United States v. Pena, 64 M.J. 259 (C.A.A.F. 2007), accompanied by a provocative concurrence by Judge Ryan.

Pena was a CAAF decision issued during the waning days of the Era of Three Part Harmony before Judges Stucky and Ryan began participating in CAAF decisions. Pena's appeal was a frontal assault on the military's mandatory supervised release program. In his opinion for the court, Chief Judge Effron discussed the limitations on CAAF's power to evaluate the manner in which the Department of Defense executes a court-martial sentence:

Our review of post-trial confinement and release conditions on direct appeal is limited to the impact of such conditions on the findings and the sentence. . . . Accordingly, our review in the present appeal focuses on whether the post-trial conditions at issue: (1) constituted cruel or unusual punishment or otherwise violated an express prohibition in the UCMJ; (2) unlawfully increased Appellant’s punishment; or (3) rendered his guilty plea improvident. To the extent that the issues raised by Appellant otherwise challenge the administration of the Mandatory Supervised Release program, those matters -- including questions regarding the underlying legal authority for the program -- are not before us on direct review.

Pena, 64 M.J. at 264.

CAAF held that Pena had not carried his burden to obtain relief on any of those three bases. As you may recall, Pena then unsuccessfully sought cert. Pena v. United States, 127 S. Ct. 2281 (2007).

Which brings us to this Monday. CAAF remanded United States v. Seawell, in which CAAF had previously granted review, 64 M.J. 317 (C.A.A.F. 2006), for the Air Force Court to consider "WHETHER THE DECISION TO DISAPPROVE TIME SERVED ON MANDATORY SUPERVISED RELEASE AND IMPRISON APPELLANT BEYOND HIS MAXIMUM RELEASE DATE INCREASED APPELLANT’S PUNISHMENT ABOVE THE SENTENCE APPROVED BY THE CONVENING AUTHORITY. SEE UNITED STATES v. PENA, 64 M.J. 259 (C.A.A.F. 2007)." United States v. Seawell, __ M.J. ___, No. 06-0502/AF (C.A.A.F. July 16, 2007).

Judge Ryan issued a provocative concurrence, questioning whether under Clinton v. Goldsmith, 526 U.S. 529 (1999), CAAF has jurisdiction to review the manner in which the Mandatory Supervised Release Program is executed or the program's collateral consequences on a particular accused. She suggests that her view is that CAAF may only consider whether the Mandatory Supervised Release Program "results in an increase in the punishment of confinement," thereby creating "an actual alteration of the adjudged sentence." (The answer to that question, of course, would almost invariably be, No.)

I suspect that these are just the first few lines in what will become an extended judicial dialogue. This should be interesting.

Webb of deceit

Today's CAAF daily journal update included an Air Force certificate of review. United States v. Webb, __ M.J. ___, No. 07-5003/AF (C.A.A.F. July 17, 2007).

You may remember United States v. Webb, No. Misc. Dkt. 2007-01 (A.F. Ct. Crim. App. May 10, 2007), a government appeal of a military judge's ruling granting a new trial due to a lying urinalysis observer that we previously discussed here. The facts were so disturbing that even as stalwart a prosecution supporter as JO'C thought that the military judge was correct in granting a new trial.

Now the Judge Advocate General of the Air Force is asking CAAF to decide whether JO'C and the Air Force Court were right. That's not the actual question he asked CAAF; rather, he posed these two questions to the court:

WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION IN GRANTING THE DEFENSE MOTION FOR NEW TRIAL

WHETHER PRIOR TO AUTHENTICATION THE MILITARY JUDGE HAS THE AUTHORITY IN A POST-TRIAL ARTICLE 39(a) SESSION TO SET ASIDE A CONVICTION AND ORDER A NEW TRIAL AS A REMEDY FOR A DISCOVERY VIOLATION DISCOVERED POST-TRIAL

I have a question for our Air Force readers. (Maybe I should say "Air Force reader." Fitz? Fitz?) The Air Force Court released its Webb opinion on 10 May. CAAF's rules provide that "[i]n cases involving a decision by a Court of Criminal Appeals on appeal by the United States under Article 62, UCMJ, 10 USC § 862, a certificate for review, together with a supporting brief in accordance with Rule 24 on behalf of the appellant, shall be filed with the Court by the Judge Advocate General no later than 30 days after the date of the decision of the Court of Criminal Appeals." C.A.A.F. R. 19(b)(1). The defense brief is due a mere 10 days later. Id.

Rule 19(b)(1) suggests two questions: (1) Why was the certificate of review filed 68 days after the Air Force Court's opinion? Was the deadline for filing the certificate validly tolled during some portion of that period, such as by the proper filing of a timely motion to reconsider? (2) If so, did the government file its brief on the mertis, in addition to the certificate of review, within the 30-day deadline as required by Rule 19(b)(1)? Fitz?

Color bind

There is a dispute among CAAFlog contributors about the new color scheme. At least one of the contributors -- I'll protect his true identity by referring to him by a pseudonym, hmm, how about Oscar the Grouch? -- doesn't like it. Any opinions out there in cyberspace?

Resource alert

The new issue of the Duke Journal of Gender Law & Policy is devoted to "Gender, Sexuality & the Military." Unlike previous resource alerts, I am posting this without having read the journal first. But I'm excited about reading it when I have time. Among the articles is a piece by a true military justice giant -- Judge Walter T. Cox III -- called Consensual Sex Crimes in the Armed Forces: A Primer for the Uninformed.

New designation

In light of Guert's post awarding "the Great" status to NMCCA's Judge Couch, former Judge Mathews of the Air Force Court will now be known as "Judge Mathews the Greatest," of "JMTGst" for short.

Is the fix in?

We previously examined CAAF's opinion in United States v.Adcock, 65 M.J. 18 (C.A.A.F. 2007). Justice Erdmann's opinion for the court awarded extra confinement credit where Travis Air Force Base officials deliberately violated an Air Force reg by arranging for airmen to be held pretrial in a civilian confinement facility that commingled sentenced prisoners with pretrial detainees.

I have it on very good authority that the Air Force, like the Army before it in the wake of ACCA opinions awarding extra credit due to violations of Army pretrial confinement regs, changed the reg (AFI 31-205) rather than changing the pretrial confinement practice. Can anyone in the Air Force confirm this news and tell us what the revised reg says? Fitz?

Taylor docketed for conference

The Taylor cert petition, No. 07-13, which we previously discussed here, has been docketed for the Supremes' 24 September conference.

Sea services opinions

Here is a link to NMCCA's published opinion in United States v.Markert, __ M.J. ___, No. NMCCA 200500223 (N-M. Ct. Crim. App. July 12, 2007), about which Guert writes below (even taking Judge Mathews' title of "the Great" and bestowing it on NMCCA's Judge Couch).

Here's a link to NMCCA's published opinion in United States v. Holmes, __ M.J. ___, No.NMCCA 200601110 (N-M. Ct. Crim. App. July 9, 2007).

In a welcome departure from past NMCCA practice, both are already on WESTLAW. Holmes, 2007 WL 2004422; Markert, 2007 WL 2004407.

WESTLAW also reveals that United States v. Vanterpool, __ M.J. ___, No. 1255, 2007 WL 1892232 (C.G. Ct. Crim. App. July 2, 2007), which we previously discussed here, will be published despite the lack of an "M.J." designator on the CGCCA web site.

Finally, WESTLAW indicates that CGCCA's opinion in United States v. Caballero, __ M.J. ___, No. 1252, 2007 WL 2011276 (C.G. Ct. Crim. App. July 12, 2007), will also be published.

Incredibly, Caballero was the second CCA opinion last week overturning a plea of guility to making a false official statement to civilian law enforcement personnel. See also United States v. Holmes, __ M.J. ___, No. NMCCA 200601110 (N-M. Ct. Crim. App. July 9, 2007).

In Caballero, CGCCA didn't hold that the accused's false statements to a Norfolk police detective necessarily weren't official; rather, the court held that the providence inquiry failed to establish the lies' official nature. See Caballero, slip op. at 2. (Cabellero had falsely told the detective that he wasn't at the scene of a shooting.)

While the Coast Guard Court acknowledged that the military judge (Judge Judge)"asked repeatedly if Appellant understood that the detective was acting in his official capacity as a Norfolk police officer during the questioning," the Coast Guard Court faulted him for failing to "define the term 'official,'" as well as failing to "inquire into Appellant's belief that he was making the statement in the line of duty or that his statement was official." Id., slip op. at 203.

Just at NMCCA did in Holmes, the Coast Guard Court in Caballero distinguished United States v. Teffeau, 58 M.J. 62 (C.A.A.F. 2003), where "[t]he circumstances leading up to and surrounding the statements made to [civilian law enforcement personnel bore] a clear and direct relationship to Appellant's duties as a recruiter and reflect a substantial military interest in the investigation." See Cabellero, slip op. at 3 (quoting and discussing Teffeau, 58 M.J. at 69).

Perhaps explaining why the Coast Guard Court chose to publish this rather brief (4-page) opinion, Judge Lodge then observed that the Military Judges' Benchbook's treatment of the officiality element for a 107 offense is deficient. Caballero, slip op. at 3.

In light of the dual outcomes in Holmes and Caballero, a Benchbook rewrite probably is in order.

JCTG issus second published opinion in one week: United States v. Markert

In his second published opinion in one week, Judge Couch the Great (JCTG) addresses the issue of proximate cause in involuntary manslaughter cases where family members elect to terminate life support of a person who may survive with limited functioning.

PFC Markert was playing quickdraw with a fellow Marine in the back of a moving HMWWV. Tragically, his pistol discharged into the head of a fellow Marine. Six days later, the Marine’s family elected to terminate life support because their son may have been blind and severely disabled and, according to his mother, “he wouldn’t want to live that way.”

According to the Court, PFC Markert’s plea to involuntary manslaughter was still provident because his actions still played a “material role in the death” of his fellow Marine, and were therefore the proximate cause of the Marine’s death.

JCTG’s opinion is scholarly, and relies upon the courts of the sister services as well as decisions from state supreme courts:

"We adopt the holding of the Stanley court that an accused is not shielded from a voluntary manslaughter charge when artificially administered ventilation is withdrawn as part of a foreseeable, well-reasoned medical decision based upon what is considered of greatest benefit to the victim. 60 M.J. at 628."

Because this is not the first or last case involving sailors and Marines playing quickdraw with loaded weapons, JCTG’s opinion is a welcome addition to this area of the law. But the CAAF may yet wish to weigh in on this issue instead of leaving the matter to the Navy and Air Force Courts of Criminal Appeals. This case is certainly a close call.

A new published NMCCA opinion: Larry Holmes comes out of retirement.

Who could forget fine work of Lieutenant Commanders Belsky and Fulton in the epic cases of Staff Sergeants Teffeau and Finch? Staff Sergeants Finch and Teffeau plied young recruits with alcohol one January afternoon in Kansas and, before the night was through, one of the recruits was dead, having driven her mustang into a local lake. Staff Sergeant Finch tried unsuccessfully to save her before going for help at a local farmhouse. Staff Sergeant Teffeau made several false statements to civilian rescuers and law enforcement about the events of that afternoon, and he later pleaded guilty to making false official statements. LCDR Belsky failed to convince the CAAF that Teffeau’s statements to local officials were not “official” for purposes of Article 107 because they were made to civilian law enforcement. United States v. Teffeau, 58 M.J. 62 (C.A.A.F. 2003).

Apparently LCDR Belsky has been seeking a rematch for four years. But any good rematch requires a good contender. Enter Private Larry D. Holmes. The Marine Corps version of the Easton Assassin unlawfully borrowed a car off of the base “lemon lot” and drove it to the other legal black hole in Latin America: Tijuana. On the return trip across the border, he was questioned by U.S. customs agents and later the CHiPs. Naturally, he lied to both of them about how he had come to be in possession of what was certainly a fine automobile. Private Holmes then deployed to Iraq where a special agent of the NCIS was able to bust the case of the wrongfully appropriated vehicle wide open. Naturally, in addition to the wrongfully appropriated vehicle, the Marine Staff Judge Advocate charged the Assassin with three false official statements: one for the customs agent, one for the Officer Francis Llewellyn Poncherello, and one for Mark Harmon. Private Holmes pleaded guilty to all charges.

LCDR Belsky raised the same argument he had raised in Teffeau: the Assassin (this one in name only) had not made false official statements to the civilian authorities because the statements were not official. The Navy-Marine Corps Court of Criminal Appeals, not faced with a dead teenager this time, agreed. United States v. Holmes, M.J. (N-M. Ct. Crim. App. July 9, 2007). In a well-crafted opinion by the conscience of the Court, LtCol Couch, the court found no “nexus exists between the basis” for the civilian questions “and appellant’s military duties and status.” The Court, like the CAAF in Teffeau, relied upon Solorio v. United States, 483 U.S. 435 (1987), for its nexus test.

All living practitioners in the Navy-Marine Corps should read this published decision. Making a false official statement is one of the favorite add-on charges of the overzealous SJA/TC. Take for example the cases of Teffeau and Finch. In a case involving a promising dead teen in a lake, why not charge false official statement too? How about some seatbelt violations? And we still don’t know who was really driving the car.

Star light, star bright, third star I see tonight . . .

We previously discussed the Senate's proposal to give the Judge Advocates General a third star while raising the legal counsel to the Chairman of the Joint Chiefs of Staff to general/flag grade.

On 10 July, OMB issued a Statement of Administration Policy opposing the third star for the Judge Advocates General while proposing giving the Chairman's legal counsel two stars instead of one. Here is what OMB wrote:

Grades of Judge Advocates General: The Administration opposes section 573, which would by statute elevate the Judge Advocates General to 3-star grade. This provision would undermine the flexibility of the President to determine what positions of importance and responsibility merit grades above major general or rear admiral (upper half). The Judge Advocates General, as 2-star officers, already participate fully in the legal affairs of their respective Military Departments and the entire Department of Defense.

Grade of the Legal Counsel to the Chairman of the Joint Chiefs of Staff: While the Administration appreciates the Senate Armed Service’s elevation of the rank of Legal Counsel to the Chairman of the Joint Chiefs of Staff from Colonel/Navy Captain to 1-star grade in section 573(e), which would add a new section 156 to title 10, U.S. Code, we urge Congress to further elevate the position to that of 2-star grade.

Hunter Grant

For those that can't pull up the old link to the Hunter case, here is the re-located link. I have to agree with the Clipper that the granted issue, here, frames the facts slightly differently because the CGCCA opinion discusses the fact that though the misconduct was pre-trial, it was not discovered until after imposition of sentence. But, the grant poses an interesting question.

CAAF Grants USCG "Rescue Mission" Case

CAAF has granted an issue asking whether pretrial misconduct can form the basis for withdrawal from a PTA sentence limitation, since pretrial misconduct necessarily occurs while there is no sentence, suspended or otherwise. This seems like an interesting issue, and this case was the subject of a previous post by CAAFlog, here: http://caaflog.blogspot.com/2007/01/new-published-cgcca-case.html. You may remember it as the "Coast Guard Court rescue mission" case.

I can't seem to pull up the lower court's opinion here in Qatar (I'm on R&R), and I noticed that the granted issue seems at variance with CAAFlog's description of the issue, which discusses post-trial misconduct. Is anyone familiar with this case, or at least able to pull up the opinion?

-Qatar Qlipper
(Yeah, I posted from here just so I could write that.)

To paraphrase the Rollings Stones, come on down [to] sweet Virginia

Tomorrow afternoon I'll be going TAD to the exotic locale of Warrenton, Virginia. I don't expect to have computer access until Sunday evening. So I hope the No Man, the Super Muppet, the Kabul Klipper, and our growing squadron of dead Navy bloggers will keep the conversation going while I'm away.

Sacramentum discusses new Coast Guard case on terminating UAs by apprehension

Sacramentum has this post about a new unpublished Coast Guard Court of Criminal Appeals decision, United States v. Hedlund, No. 1261 (C.G. Ct. Crim. App. July 11, 2007).

SG passes on Taylor

The SG has waived his right to respond to the cert petition in Taylor, No. 07-13, which we previously discussed here.

You can't hide your lyin' eyes

ACCA today released a lengthy opinion exploring defense counsel's responsibilities when they believe that their client is about to lie on the stand. United States v. Baker, __ M.J. ___, No. ARMY 9800743 (A. Ct. Crim. App. July 10, 2007). In the wake of a remand from CAAF, United States v. Baker, 58 M.J. 380 (C.A.A.F. 2003), and two DuBay hearings, ACCA concluded that the trial defense counsel's performance wasn't perfect but wasn't IAC, either. ACCA noted that the accused was actually acquitted of some of the specifications about which he testified falsely. "Ironically, therefore, appellant's perjured testimony resulted in no prejudice to him -- it actually inured to his benefit." Id., slip op. at 15. While summer funning more than two decades ago, I was involved in a case that involved this very delicate issue. Baker provides a good primer to anyone who finds himself or herself confronted with such a conundrum.

Military justice legislation

The "Military Justice and Legal Assistance Matters" subtitle of this year's House-passed version of the DOD Authorization Act, H.R. 1585, includes only one item, which would expand authorization to provide legal assistance to "[c]ivilian employees of the Federal Government serving with, or preparing to serve with, an armed force in support of a contingency operation, as designated in regulations prescribed by the Secretary concerned." (Hey, No Man -- if we can court-martial them, the least we can do is give them legal assistance, too.)

The Senate version, S. 1548, on the other hand, has three items. The first, for reasons that aren't apparent to me, would statutorily authorize CAAF judges to administer oaths.

The second provision is an expanded authorization to provide legal assistance that is at once broader and narrower than the House version. Rather than applying only in contingency areas and to those preparing to go to contingency areas, it more broadly applies "in locations where legal assistance from non-military legal assistance providers is not reasonably available." But rather than applying to all federal government civilian employees, it more narrowly applies to "[c]ivilian employees of the Department of Defense." Unlike the House version, the Senate version also omits reference to service regulations.

Section 573 provides that serving Judge Advocates General shall be three-star generals or admirals. It also provides that the legal counsel to the Chairman of the JCS shall be a one-star.

Resource Alert

The February 2007 issue of the Journal of Legal Economics includes an article of potential interest to military justice practitioners. Paul C. Taylor & Laura J. Taylor, Evaluating the Financial Cost of an Involuntary Military Separation, 14 J. Legal Econ. 1 (2007). The article provides a helpful discussion of how to calculate the expected value of a military retirement -- a figure that will often be useful at a court-martial or admin discharge board. The article is marred by a couple of references to CAAF as the "Court of Appeals for the Armed Services." See id. at 3.

HUGE news!!!

If you are reading this, you are no doubt, like me, a military justice junky. You will no doubt also, like me, be thrilled to know that Akhil Amar will be devoting a chapter in his upcoming book to a military justice topic. In a recent article in the Syracuse Law Review, Professor Amar discusses his upcoming book, America's Unwritten Constitution: Between the Lines and Beyond the Text. See Akhil Reed Amar, America's Constitution, Written and Unwritten, 57 Syracuse L. Rev. 267, 268 (2007). Chapter 3 will include an analysis of "whether certain narrow but unenumerated limitations on rights" may exist. Id. at 272. "For instance," Professor Amar notes, "courts-martial do not provide regular jury trials, and there is no explicit exception for such courts in the Constitution's general promise of jury trials for criminal defendants. Nevertheless, the Constitution has in practice been read to exempt such courts from the jury trial right." Id. It should be fascinating to see what Professor Amar makes of this notion, which has been extensively debated by military justice practitioners and scholars for at least the last 50 years.

Maybe we can offer Professor Amar's book as a prize in some future CAAFlog contest.

Taylor QP and a mea culpa

The Question Presented in the cert petition in Taylor v. United States, No. 07-13, is written in Garnerian "deep issue" format:

Military Rule of Evidence 504(c)(2)(A) bars either party from disclosing private marital communications unless the spouse asserting the privilege is accused of a crime against "the person or property" of the other spouse or a child of either spouse. The question presented is:

Whether the Court of Appeals for the Armed Forces erred when, in a trial for adultery, it ignored this Court's precedent in Bassett v. United States, 137 U.S. 496 (1890), and held that adultery is a crime against the "the person or property" of the other spouse for purposes of the marital communications privilege?

Here's the mea culpa. Upon rereading Taylor today, I discovered that the very argument I had previously contended should have been in the majority opinion -- the importance of narrowly construing privilege rules to enhance the court's truth-seeking function -- actually is in the majority opinion. Sorry -- my bad!

The 2007 term

Now that we know that all of the published opinions of the 2007 term are in, let's look at some numbers.

CAAF reviewed 23 decisions of the Air Force Court, 18 of the Navy-Marine Corps Court, 14 of the Army Court, and none of the Coast Guard Court.

The Air Force had by far the highest affirmance rate -- 74% (17/23). The Army Court's affirmance rate (57% 8/14) was comparable to the Navy-Marine Corps Court's (56% 10/18).

Capt Jefferson McBride of the Air Force Appellate Government Division argued more cases than any other counsel: 7. LT Brian Mizer of Navy-Marine Corps Appellate Defense finished close behind with 6. Maj John Page of the Air Force Appellate Defense Division was third with 4.

Among civilian counsel, only two argued more than a single case. Both Bill Cassara and Frank Spinner argued 2.

The privilege of seeking cert

The first military cert petition of the Supreme Court's 2007 term has been filed. On 3 July the Supremes docketed a cert petition filed by LT Kadlec in Taylor v. United States, No. 07-13. In United States v. Taylor,64 M.J. 416 (C.A.A.F. 2007), CAAF split 4-1 over the applicability of the confidential marital communications privilege in an adultery case. The majority held that the privilege did not apply due to Military Rule of Evidence 504's exception where "one spouse is charged with a crime against the person or property of the other spouse."

To quote the Hollies, "It's over, well over"

CAAF has posted the oral argument schedules for 8 days in October and 2 in November. The schedule for 2 October (my birthday) answers a question: the rebriefed Wilson case won't be coming out this term. So, barring any unusually urgent extraordinary writs, CAAF has issued the final opinion of its 2007 Term.

Unfortunately October will also mark a return of Project Outreach, with outreach arguments scheduled one-a-day on 23, 24, and 25 October. The schedule doesn't reveal those arguments' venue.

Jackson v. Virginia -- not as worthless as I thought

For tonight's installment of WWBJD, we take a quick peek at CAAF's legal sufficiency jurisprudence. I looked at every time CAAF has cited Jackson v. Virginia, 443 U.S. 319 (1979), since 15 October 2002, when Judge Erdmann joined the court. The total is 22. In 20 of those instances, CAAF evaluated the legal sufficiency of a conviction under the Jackson standard. Those 20 cases are the subject of our inquiry.

I began this research with a preconception that legal sufficiency review is useless. And it generally is. Consider, for example, United States v. Roderick, 62 M.J. 425 (C.A.A.F. 2006), where CAAF granted review of "whether the evidence is legally sufficient to sustain Appellant's conviction for taking indecent liberties with" his two young daughters by "having them engage in sexually explicit conduct for the purpose of creating a visual depiction of it." Did the Appellate Government Division get to write that issue? Is there more than one possible answer to that question? But despite lopsided legal sufficiency cases like Roderick, Jackson v. Virginia generated more relief that I had expected. (And isn't finding empirical results that confound expectations and "common knowledge" the whole point of Bill James' approach?)

In 16 of the 20 cases, CAAF rejected the legal sufficiency challenge. United States v. Brown, 65 M.J. 227 (C.A.A.F. 2007); United States v. Mack, 65 M.J. 108 (C.A.A.F. 2007); United States v. Young, 64 M.J. 404 (C.A.A.F. 2007); United States v. Washington, 63 M.J. 418 (C.A.A.F. 2006); United States v. Brisbane, 63 M.J. 106 (C.A.A.F. 2006); United States v. Pope, 63 M.J. 68 (C.A.A.F. 2006); United States v. Dobson, 63 M.J. 1, 21 (C.A.A.F. 2006); United States v. Roderick, 62 M.J. 425 (C.A.A.F. 2006); United States v. Wolford, 62 M.J. 418 (C.A.A.F. 2006); United States v. Hays, 62 M.J. 158 (C.A.A.F. 2005); United States v. Griggs, 61 M.J. 402 (C.A.A.F. 2005); United States v. Rollins, 61 M.J. 338 (C.A.A.F. 2005); United States v. Brooks, 60 M.J. 495 (C.A.A.F. 2005); United States v. Seay, 60 M.J. 73 (C.A.A.F. 2004); United States v. Springer, 58 M.J. 164 (C.A.A.F. 2003); United States v. Thompkins, 58 M.J. 43 (C.A.A.F. 2003).

In two of the remaining four, CAAF either altered or invalidated a conviction but awarded no sentence relief. United States v. Resch, 65 M.J. 223 (C.A.A.F. 2007); United States v. Rodriguez-Rivera, 63 M.J. 372 (C.A.A.F. 2006).

That leaves two out of twenty cases in which CAAF granted meaningful relief based on, at least in part, a Jackson v. Virginia analysis. One is United States v. Scheurer, 62 M.J. 100 (C.A.A.F. 2005), in which CAAF invalidated a driving while impaired conviction on legal sufficiency grounds and set aside the sentence based on that and another reversed finding. The other is United States v. Riley, 58 M.J. 305 (C.A.A.F. 2003), in which CAAF knocked an involuntary manslaughter finding down to negligent homicide and set aside the sentence based on Jackson.

So the next time I see a granted legal sufficiency issue in the Daily Journal, I'll suppress my natural inclination to wonder why CAAF is wasting its time on such a dog, now that I know that the dog does occasionally hunt.

New CGCCA decision

There is a new decision on the CGCCA web site, but it appears to be unpublished. United States v. Vanterpool, No. 1255 (C.G. Ct. Crim. App. July 2, 2007), deals with a military judge's denial of a motion for additional pretrial confinement credit due to the IRO purportedly shifting the burden on R.C.M. 305's foreseeability-of-engaging-in-serious-misconduct prong onto the defense and saying nothing about the inadequacy-of-less-severe-forms-of-restraint prong. The Coast Guard Court ruled, "We have found no case holding, or even suggesting, that an IRO must mention every factor explicitly or articulate the full rationale supporting the decision." Id., slip op. at 7. So, despite the rather minamalist IRO record, the Coast Guard Court affirms the military judge's denial of relief.

The JAA web site has terminated its unauthorized absence

The JAA web site is back.