Coast Guard Court's opinions page site down

There are no new cases to report, but I am unable to access the opinions page on the Coast Guard Court's web site. Can anyone give us a sitrep?

Punctuation question

Oh noble CAAFlog readers. I have a question for you. Let's say I want to refer to the joint opinion of Justices O'Connor, Kennedy, and Souter in Planned Parenthood v. Casey, 505 U.S. 833 (1992). Now let's suppose I want to construct the sentence using the possessive case. Which is right:

(a) Justices O'Connor, Kennedy, and Souter's joint opinion in Casey; or
(b) Justices O'Connor's, Kennedy's, and Souter's joint opinion in Casey?

I had long used the latter construction, reasoning that it better alerts the reader that I am using the possessive case. (I would make an exception where more than one possessor is commonly understood as one entity -- thus, I would write, for example, "Lewis and Clark's expedition" rather than "Lewis's and Clark's expedition.")

While I have traditionally used form b, I have noticed in my reading that almost everyone else seemed to use form a. And I couldn't find the answer in any of the grammar books that I usually consult. I was almost ready to throw in the towel and submit to the apparent form a orthodoxy. So imagine my delight upon reading the new biography of Shakespeare by Bill Bryson (whose writing I adore) and discovering the following description of Edmond Malone: "He became a friend of James Boswell's and Samuel Johnson's . . . ." Bill Bryson, Shakespeare: The World as Stage 175 (2007).

So which is right? And, most importantly, does anyone have a citation to an authoritative grammar text's answer to the question?

New military pro se IFP cert petition

A new military pro se IFP cert petition showed up on the Supremes' electronic docket today. Garcia v. United States, No. 07-7342.

Garcia has an odd appellate history. On 6 September 2007, CAAF granted Garcia's supp and summarily affirmed. United States v. Garcia, __ M.J. ___, No. 03-0151/MC (C.A.A.F. Sept. 6, 2007) (summary disposition). BUT on 15 October 2007, CAAF granted Garcia's motion for leave to file a petition for reconsideration out of time. United States v. Garcia, __ M.J. ___, No. 03-0151/MC (C.A.A.F. Oct. 15, 2007) (order). It doesn't appear that CAAF has yet ruled on that reconsideration motion. Now how's this for bad timing? On 16 October, Garcia filed his pro se IFP cert petition. I don't have a copy of Stern & Gressman handy at the moment, but I assume that the filing of the cert petition divests CAAF of jurisdiction over the reconsideration motion rather than the reconsideration motion's pendancy depriving the Supremes of cert jurisdiction. Can anyone confirm or refute that? If not, I'll look it up tomorrow and post more about it tomorrow night, trick or treaters permitting.

Garcia's case was already something of an appellate yo-yo. NMCCA affirmed the findings and his 75-year approved sentence. United States v. Garcia, 57 M.J. 716 (N-M. Ct. Crim. App. 2002) (The members gave him 125 years. Egad.) CAAF then granted review and set aside the findings and sentence on IAC grounds. United States v. Garcia, 59 M.J. 447, 453 (C.A.A.F. 2004). When his case went back for retrial, he received a sentence that included confinement for only 35 years, with confinement in excess of 20 years suspended under a PTA. When the case returned to the Navy-Marine Corps Court, it affirmed. United States v. Garcia, No. NMCCA 9901513, 2007 CCA LEXIS 7 (N-M. Ct. Crim. App. Jan. 10, 2007).

Garcia's IFP cert petition obviously carries no hope of relief from the Supremes. I assume that his appellate defense counsel is now busily determining how to get the case back in front of CAAF to allow it to complete its reconsideration of the supp.

Precedential value cont'

One commentator asked how often the service courts have been cited in state court opinions. I didn't set out to look for the answer to that question, but in the course of looking for CMA/CAAF opinions, I came across 13 state court opinions published over the last two years that cited CCA/CMR/BR decisions. (Obviously there may have been more, since I wasn't actually looking for intermediate military appellate decisions but rather found these cases while looking for state cases citing CMA/CAAF decisions.) Interestingly, though perhaps not surprisingly, at least one state court didn't appreciate the distinction between the pre-Military Justice Act of 1968 boards of review and the intermediate military appellate courts that they evolved into thereafter. In Edmund v. State, 921 A.2d 264 (Md. 2007), the Maryland Court of Appeals addressed this issue: "Does the common law currently require a victim to be identified by name in a charging document alleging assault?" In the course of holding that it doesn't, the court noted: "See also United States v. Schreiber, 16 C.M.R. 639, 1954 WL 2536 (A.F.C.M.R. 1954) (sustaining sufficiency of charges against member of the United States Air Force for murder in Korea of Oriental male, unidentified by name, caught stealing from supply depot)." 921 A.2d at 271. The 1954 Schreiber opinion was, of course, a decision of an Air Force Board of Review, not the Air Force Court of Military Review.

For those of you interested in an inter-service breakdown, five of the thirteen decisions were from the Navy-Marine Corps Court, five were from either the Air Force Court or an Air Force Board of Review, and three were from the Army Court.

Precedential value

How is CAAF's precedent viewed by other courts? To start a conversation about that topic, I decided to look at state courts' citations to CMA/CAAF decisions over the past two years.

So, how many published state court decisions over the last two years do you think cited a CMA or CAAF decision? Please think of a number and then post a comment indicating whether the actual number is higher or lower.

My searches revealed twenty-two reported state court decisions over the past two years citing a total of twenty-two CMA/CAAF decisions. I can't guarantee that I found every such case, but a state court would have had to use an incredibly creative citation style to avoid detection.

Several courts were repeat customers, so the twenty-two reported cases were spread among seventeen courts in fourteen different states. Courts in Maryland, Massachusetts and North Carolina each had three reported decisions citing CMA/CAAF cases. Nineteen of the cases were criminal, one was a mandamus action arising from a state post-conviction action, one was an administrative driver's license revocation proceeding that somehow made it to the Hawaii Supreme Court, Brune v. Admin. Dir. of the Courts, 130 P.3d 1037 (Haw. 2006), and one was a sex offender registration case.

Most of the decisions treat the CMA/CAAF precedent favorably, while just four of the twenty-two decisions reject or distinguish the CMA/CAAF precedent.

What is striking is the routine manner with which the precedent is handled. There is no sense that CMA/CAAF precedent is somehow exotic. There are no attempts to explain why it is appropriate to cite precedent from the military justice system. It is simply treated as precedent from another jurisdiction.

In only one of the twenty-two cases was the state court dealing with a question that directly concerned military law: People v. Kennedy, 850 N.E.2d 661 (N.Y. 2006), where the New York Court of Appeals was considering whether a GCM conviction for indecent assault required registration as a sex offender. (No, held the court.)

United States v. Reichenbach, 29 M.J. 128 (C.M.A. 1989), which was cited in three state court decisions, was the most frequently cited.

The list of cited cases included other prominent recent military justice cases. United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006), was favorably cited by the New Mexico Court of Appeals in State v. Stock, 147 P.3d 885 (N.M. Ct. App. 2006). The Virginia Court of Appeals relied on United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004), in deciding Singson v. Commonwealth, 621 S.E.2d 682 (Va. Ct. App. 2005). And, not surprisingly, one state court decision looked to CAAF precedent for guidance in interpreting Crawford v. Washington, 541 U.S. 36 (2004). State v. LaTurner, 163 P.3d 367 (Kan. Ct. App. 2007) (citing Untied States v. Magyari, 63 M.J. 123 (C.A.A.F. 2006)).

The most extensive use of military precedent in any one case was by the Kentucky Supreme Court, which relied on two CMA/CAAF decisions in holding that a criminal defendant is entitled to access to his or her trial defense counsel's case file, including work product, during post-conviction review. Hiatt v. Clark, 194 S.W.3d 324 (Ky. 2006) (relying on United States v. Dupas, 14 M.J. 28 (C.M.A. 1982); United States v. Dorman, 58 M.J. 295 (C.A.A.F. 2003)).

It will surprise no one to know that the author of more cited CMA/CAAF opinions than any other judge was Chief Judge Everett, with five. Chief Judge Cox and Judge Baker tied for second with four. This is quite an impressive feat for Judge Baker, since he has thus far served less than half his term. Every other judge in the top five has already completed a fifteen-year term--and has presumably cranked out roughly twice the number of opnions available to be cited compared to Judge Baker's portfolio. (Chief Judge Crawford was fourth while Chief Judge Sullivan was fifth.)

So did you think the number would be more than, less than, or exactly twenty-two?

Cert denied in Harrow

Today's SCOTUS order list included the denial of certiorari in the military cert petition in Harrow v. United States, No. 07-404.

Parsing Dossey

JO'C and I swap views on NMCCA's recent unpublished but intriguing ruling dismissing an Article 62 appeal in United States v. Dossey, No. NMCCA 200700537 (N-M. Ct. Crim. App. Oct. 23, 2007), below.

Here is how I would analyze the issue if Guert Gansevoort were to be posthumously promoted to Judge Advocate General of the Navy and appointed me to NMCCA. (I know, I know -- technically "assigned me to NMCCA." See Edmond v. United States, 520 U.S. 651, 658 (1997) ("Under the Appointments Clause, Congress could not give the Judge Advocate General power to 'appoint' even inferior officers of the United States; that power can be conferred only upon the President, department heads, and courts of law.").)

Article 62 provides that the government may appeal "[a]n order or ruling of the military judge which terminates the proceedings with respect to a charge or specification." 10 U.S.C. § 862. So the question becomes whether a mistrial "terminates the proceedings with respect to a charge or specification." And the answer to that question appears to be shrouded in ambiguity. R.C.M. 915 governs mistrials. The discussion to the Rule (which, of course, is non-binding) says that "a mistrial is appropriate when the proceedings must be terminated because of a legal defect, such as a jurisdictional defect, which can be cured . . . ." R.C.M. 915(a) discussion (emphasis added). So the 1984 Manual's drafters apparently understood a mistrial to be included in Article 62's "terminates the proceedings" criterion. (For you Chevron aficionados, the drafters' analysis isn't entitled to deference. First, as Justice Scalia has observed, "we have never thought that the interpretation of those charged with prosecuting criminal statutes is entitled to deference." Crandon v. United States, 494 U.S. 152, 177 (1990) (Scalia, J., concurring); accord Gonzales v. Oregon, 546 U.S. 243, 263 (2006). Second, the Manual's discussion itself eschews the notion that the discussion constitutes an agency interpretation of the UCMJ. See Manual for Courts-Martial, United States, Pt. I, ¶ 4 discussion (2005 ed.) (noting that the discussion and other supplementary materials in the MCM "do not constitute the official view of the Department of Defense, the Department of Transportation, the Department of Justice, the military departments, the United States Court of Appeals for the Armed Forces, or any other authority of the Government of the United States").)

But the discussion to R.C.M. 915 also provides that "[u]pon declaration of a mistrial, the affected charges are returned to the convening authority who may refer them anew or otherwise dispose of them." Consistent with this discussion, military appellate courts have recognized a convening authority's power to re-refer charges that have been the subject of a mistrial. See, e.g., United States v. Seward, 49 M.J. 369 (C.A.A.F. 1998); United States v. Blackett, 62 M.J. 625 (N-M. Ct. Crim. App. 2006). Given the possibility of re-referring charges to another court-martial, have proceedings been terminated by a mistrial? If Article 62 used the phrase, "a proceeding," it would seem apparent that the answer is yes. But because Article 62 speaks of a ruling "which terminates the proceedings with respect to a charge or specification," 10 U.S.C. 862 (emphasis added), the answer isn't clear to me. After all, further proceedings are authorized, so all proceedings haven't been terminated.

Because I find the statutory language to be ambiguous, it is appropriate to consult canons of construction. And here the canons speak without ambiguity. As the Navy-Marine Corps Court itself has held, statutes authorizing government appeals "are construed strictly against the right of the prosecution to appeal." United States v. Pearson, 33 M.J. 777, 779 (N.M.C.M.R. 1991). Senior Judge Mitchell's opinion for the Navy-Marine Corps Court explained, "Because these statutes compete with speedy trial and double jeopardy protection as well as judicial impartiality and piecemeal appeal policies, prosecution appeals are not particularly favored in the courts." Id. at 779. Indeed, the Supremes have similarly observed that "in the federal jurisprudence, at least, appeals by the Government in criminal cases are something unusual, exceptional, not favored." Will v. United States, 389 U.S. 90, 96 (1967) (quoting Carroll v. United States, 354 U.S. 394, 400 (1957)).

So I would resolve Article 62's ambiguity by following the canon that statutes authorizing government appeals are strictly construed against the right to appeal and therefore resolve the ambiguity by holding that where the government may refer the affected charges to another court-martial (as would also occur where, for example, a military judge dismisses charges on speedy trial grounds without prejudice), the government does not have a right to an Article 62 appeal.

The intriguing Dossey opinion generates a few additional thoughts. First, while NMCCA's opinion raises fascinating legal issues, if CAAF were to conclude in Lopez de Victoria and Michael that it has no Article 67 power to "act" on a Court of Criminal Appeals' ruling on an Article 62 appeal, the government could potentially challenge this ruling only by filing a rare government petition for extraordinary relief at CAAF. (Because the case can be re-referred, such a writ would likely lie within CAAF's potential appellate jurisdiction and could lead to CAAF reviewing NMCCA's opinion.) Second, why is such an intriguing opinion not published? Third, to beat a horse on which I frequently flail, why have three business days passed without this intriguing opinion -- as well as a published NMCCA opinion in another Article 62 appeal released the same day -- being uploaded to either NMCCA's web site or LEXIS? These are important decisions that everyone who follows military justice should know about. These opinions' availability shouldn't be hostage to the fortuity that a barely-technically-proficient Unfrozen Caveman Lawyer happens to have access to both NKO and a web site.

U.S. v. Murphy referred to trial

Apologies if this was posted elsewhere before, but I didn't see it: according to this article in the Air Force Times, the Murphy case has been referred to trial. The thirteen specifications that made the referral include nine instances of conduct unbecoming, three specifications of larceny over $500, and one spec of violating a lawful general regulation. Nine specs were dismissed prior to the scheduled date of Colonel Murphy's Article 32 hearing (which Colonel Murphy subsequently waived).

Interestingly, the Times article states that the larceny specs are unrelated to the licensure issues that formed the original core of the charges. I hadn't heard that before.

Watada PI extended

The United States District Court for the Western District of Washington's injunction against proceeding with the court-martial of Lieutenant Watada was originally supposed to expire today. But last week, Judge Settle extended the injunction to 9 November. Here's a link to a short AP piece about that order.

Unpublished NMCCA Article 62 appeal opinion

In a comment to the post discussing NMCCA's Ratliff decision below, Justin observes that NMCCA also recently decided a unpublished Article 62 appeal case in which the court dismissed the government's appeal, finding that the trial counsel didn't successfully notice an appeal before the charges had been returned to the convening authority. United States v. Dossey, No NMCCA 200700537 (N-M. Ct. Crim. App. Oct. 23, 2007). I've posted the opinion on CAAFlog.com. The opinion is most notable for an impressive and convincing concurrence by Judge White arguing that a mistrial ruling is not appealable under Article 62.

SG's response time extended in Foerster

The SG has obtained an extension until 28 November to respond to the cert petition in Foerster v. United States, No. 07-359.

New published CGCCA opinion

The Coast Guard Court issued a new published opinion today. United States v. Stellon, __ M.J. ___, No. 1264 (C.G. Ct. Crim. App. Oct. 25, 2007).

Stellon deals with a military judge's limitations during cross-examination of the complaining witness in a rape case. Two years after she and Petty Officer Stellon had sexual intercourse (an act that Stellon confessed was non-consensual), the complaining witness had sex in a car and four days later reported that she had been raped. She later admitted that that report was untrue. She also, apparently, fabricated evidence, including ripping her panties. This fact seems particularly significant because her panties were allegedly ripped in the incident involving Petty Officer Stellon.

The military judge allowed sufficient cross-examination for the members to understand that the complaining witness had falsely reported a rape two years after the incident involving Petty Officer Stellon. But the military judge limited the amount of cross-examination, excluded the torn panties from the second incident from evidence, and refused to allow the defense to present evidence that an investigator had told her after she recanted her allegation that she might be charged with filing a false police report.

The Coast Guard Court upheld the military judge, ruling that he acted within his discretion to limit the cross-examination. The court reasoned:

Contrary to Appellant's argument, we find no abuse of discretion by the military judge in limiting the details of AD’s 2004 false report, including the composite sketch. The record reveals that the military judge conscientiously evaluated the accused’s right to present material evidence to impeach AD under M.R.E. 608(b) and 403. He allowed the defense some cross-examination of AD and testimony by police investigators on the details of the 2004 complaint, in addition to AD's admission that she had, in fact, filed such a false report with police.

Stellon, slip op. at 4.

Concerning the military judge's exclusion of the ripped underwear evidence, the court again upheld the military judge, though with some disagreement with his reasoning:

When the defense later offered the underwear itself and the police officer's testimony about it (R. at 801-02), the military judge excluded the evidence, at least partly under M.R.E. 412 as evidence of other sexual behavior. We find his invocation of M.R.E. 412 strained, but we see no basis for admitting the underwear evidence. According to counsel, that evidence would bear on AD's credibility. The association of ripped underwear with a report of rape by AD was a point the 2002 and 2004 reports had in common. In other words, as Appellant puts it now, since she lied in 2004 when she told a story that included ripped underwear, the members should infer that she had lied in 2002 when she told a story that included ripped underwear. This point was conveyed during defense counsel's closing argument, using the evidence that had been admitted. Further evidence of the ripped underwear to support this theory, in our view, runs afoul of M.R.E. 404(b): evidence of her act in 2004 "is not admissible . . . in order to show action in conformity therewith" in 2002; and the M.R.E. 608(b) exception does not reach the police officer's testimony or the underwear itself because that evidence would be extrinsic evidence. The evidence was excludable on this basis.

Stellon, slip op. at 4-5.

As to the investigator's statement to the complaining witness that she could be charged with a crime for her false report, the court held that "M.R.E. 608(c) could provide a basis for admission of evidence that AD had been advised that she could be charged with filing a false statement." Id., slip op. at 5. But the court nevertheless upheld the military judge's exclusion of the evidence because the defense never cited Military Rule of Evidence 608(c) when arguing for the evidence's admissibility.

New published NMCCA opinion

First off, happy St. Crispin's Day!

Today NMCCA posted an opinion on NKO that it issued on 23 October. (It isn't yet available on NMCCA's public web site, so I've posted it on CAAFlog.com.) In United States v. Ratliff, __ M.J. ___, No. NMCCA 200700512 (N-M. Ct. Crim. App. Oct. 25, 2007), NMCCA rules for the government in an Article 62 appeal challenging a ruling by Judge Klant.

In Ratliff, NMCCA follows ACCA's holding in United States v. Lopez de Victoria, 65 M.J. 521 (A. Ct. Crim. App. 2007), petition granted, __ M.J. __, No. 07-6004/AR (C.A.A.F. Oct. 4, 2007) (order), that the 2003 and 2006 amendments to Article 43 extending the statute of limitations for child abuse offenses apply to offenses for which the original statutory period had not expired when the extensions were enacted.

JO'C on CA Actions

Beloved CAAFlog contrarian commentator JO'C has published a piece in the online Journal of Military and Veteran Law. John F. O'Connor, Loose Canons: The CAAF's Flawed Approach to Construing Convening Authority Actions, 1 J. Mil. & Vet. L. 9 (2007).

JO'C's article takes issue with CAAF's recent precedent applying the literal language of CA actions to disapprove adjudged punitive discharges where it seems apparent that the CA meant to leave the discharge approved but unexecuted. JO'C criticizes CAAF's reliance on contract principles since the CA's action is not an agreement between two parties, but rather the exercise of discretion by one party. He argues that a better legal analogy is the law governing donative transfers, where instruments are construed to try to give effect to the donor's intent.

Regardless of whether you end up agreeing with JO'C's position, the article will enlighten and challenge you. It is a fine piece of scholarship that all military justice practitioners should read. (And I love the "Loose Canons" pun in the title.)

New AFCCA published decision: the dog days of October

I know that United States v. Junior was published because of its discussion of Adcock, which we'll get to. But I'm amused by the first issue in the case. See United States v. Junior, __ M.J. ___, No. ACM S31054 (A.F. Ct. Crim. App. Oct. 19, 2007).

By now we have all seen SJAs' penchant for screwing up the language in CAs' actions. In Junior, the trial counsel decided to beat the post-trial rush by screwing up the charge sheet instead. Yes, you see, A1C Junior was charged with that most heinous military offense: failure to keep a pit bull in his barracks room. (Whoops, sorry, A1C Junior was in the Air Force. Not a barracks room -- his charge sheet actually says, and I quote, "dorm room.") Now A1C Junior was stationed at Elmendorf Air Force Base, Alaska. So perhaps to stave off the cold and the boredom of six months of perpetual darkness, the base really does have a policy requiring airmen to keep grouchy animals in their quarters. But the Air Force Court assumes that the TC meant to charge Junior with dereliction of duty for keeping a pit bull in his room, not for failing to do so. The Air Force Court concludes that a specification charging an airman with failing to keep a pit bull in his dorm room "fails to state an offense on its face and is therefore dismissed." Id., slip op. at 3. But the Air Force Court applies the dreaded Peoples and affirms the sentence as adjudged. Id., slip op. at 8. Rex ipsa loquitur. (That may be my worst pun yet on CAAFlog.) Dog gone it!

So much for fun; now onto the important part. Junior spent 7 days in pretrial confinement at the civilian Cook Inlet Pretrial Facility (CIPT), then was transferred to an Air Force confinement facility at Malstrom AFB in Montana for 33 days, and then returned to CIPT for his final 5 days before trial. He challenges his time in the CIPT under United States v. Adcock, 65 M.J. 18 (C.A.A.F. 2007).

[I was initially confused by the Air Force Court's use of "CIPT" as the abbreviation for the Cook Inlet Pretrial Facility. But the Alaska Department of Corrections seems to use this abbreviation as well. Apparently the "PT" portion of "CIPT" stands for Pre-Trial.]

You will probably recall that Adcock was a 3-2 CAAF decision in which a majority granted sentence relief where officials at Travis Air Force Base sent pretrial confinees to a civilian confinement facility that fell well short of meeting Air Force pretrial confinement standards. It was a Mathews Month opinion in which CAAF sided with Judge Mathews the Greatest's dissent from the Air Force Court's en banc opinion. United States v. Adcock, 63 M.J. 514 (A.F. Ct. Crim. App. 2006). In dissent at CAAF, Judge Stucky posited this slippery slope:

[The majority's opinion] 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.

United States v. Adcock, 65 M.J. 18, 29 (C.A.A.F. 2007) (Stucky, J., dissenting).

The Junior case was tried well before Adcock -- in December 2005. So Adcock didn't encourage the pretrial confinement litigation in that case. But the Air Force Court's handling of the issue suggests that the Adcock slope may be more sticky than slippery.

Air Force regs provided that if the Air Force used a civilian confinement facility, a memorandum of agreement between the Air Force and the confining officials was required. Elmendorf had no pretrial confinement facility and used the civilian pretrial confinement facility, but without the benefit of a memorandum of agreement concerning confined airmen's treatment. Instead, the confinement facility was given a memorandum from Air Force Security Forces requesting that certain standards be observed.

While at CIPT, Junior was required to wear a yellow jumpsuit. Both convicted felons and those in pretrial confinement for felony charges were required to wear yellow jumpsuits. Unlike the Taj Mahal of a pretrial confinement facility at Malstrom AFB, the CIPT didn't have a work program, drug treatment, library, or exercise facility, though Junior did receive yard time while at CIPT. Unclear from the opinion is whether dogs were either required or prohibited in the cells at either CIPT or Malstrom.

In the first published opinion to construe Adcock, the Air Force Court wrote:

In light of Adcock, the question now becomes: When do violations of service regulatory confinement standards amount to an abuse of discretion because they demonstrate a disregard by the Air Force of the duty to ensure that servicemembers who are in pre-trial confinement are treated in a manner that recognizes the presumption of innocence? Clearly not every regulatory violation equals an abuse of discretion undermining the presumption of innocence. The court in Adcock was particularly concerned that Air Force officials were long aware of the regulatory violations and that the duration amounted to a "knowing and deliberate violation of the [Air Force's] confinement regulations." [61 M.J.] at 28. So, courts must look to the types of regulatory violations and the duration of the Air Force's awareness of the regulatory violations to determine when a regulatory violation becomes an abuse of discretion.

Junior, ACM S31054, slip op. at 6.

The Air Force Court found that the CIPT facilities fell below the standard required by Air Force regulations by failing to provide a work program, drug treatment program, a library, or a gym. But the court declined to grant relief due to the brevity of Junior's confinement there. "Deprivation of services like those complained of here, for short confinement durations, simply do not rise to the level of being an abuse of discretion by Air Force officials even when they knowingly permit them to occur in short term confinement facilities, whether civilian or military. When pretrial confinement is for a limited duration, these types of violations, without more, do not undermine the appellant's presumption of innocence." Id.

The defense also sought relief because the Air Force had failed to enter into a Memorandum of Agreement with CIPT for 8 months. The Air Force Court declined to grant relief on this basis, holding "that the failure of Air Force officials to complete a MOA with the facility, without more, did not amount to an abuse of discretion, in light of the clear efforts by the Air Force to reach a MOA, the existence of an interim memorandum designed to address the treatment of pre-trial confinees, and the fact that the Air Force only used the CIPT as a temporary transition facility." Id. at 7.

Finally, the Air Force Court declined to order relief because Junior, like all convicted felons and all detainees held at CIPT for felony trials, was required to wear a yellow jump suit.

My guess is that CAAF will grant review of this one, which will lead to greater clarity for all of the services concerning Adcock's implementation. If CAAF were to affirm this holding, then Adcock will likely have little effect beyond the aberrant -- and quite disturbing -- situation at Travis AFB from which it arose.

Dept. of the Navy Art. 15 "Representation"

A few posts back, we discussed, here, a recent article from the new Journal of Military and Veterans Law. The article, Sailors and Marines Have Fewer Legal Rights than other Military Members as Their Military Lawyers Are Restricted in the Pre-Article 15 Advice They May Provide, 1 J. Mil. & Vet. L. 1 (2007), discussed (among other issues) the Navy Dept's policy of restricting the ability of lawyers to form an attorney client relationship with "clients" seeking pre-Art. 15 counseling. Showing just how much CAAFlog follows every one's comments on the site, he noticed that one of the commentors recently cited a change in the JAGMAN that potentially solved the representation issue, here. "Interested" said...

I believe the new JAGMAN (Section 0131) cures the concerns raised in the article. The section redefines and broadens the scope of permissible attorney-client relationships. It provides a much more workable and realistic standard. Under the new guidance as I interpret it, defense counsels can freely consult and advise clients pre-NJP without IMC or detailing implications.

While the commenter held out hope that the Navy cured the obvious conflict between Dept. policy and almost every state bar's rule on confidentiality and attorney client relationship formation, see e.g. Calif. Bar Interim Op. No. 95-0015 (telephone legal advice "service's advisory message stating that there is no attorney-client relationship is not by itself sufficient to avoid the formation of the relationship"), alas, the cure does not appear to withstand scrutiny. The following provisions so limit the applicability of the rule in JAGMAN 0131, that NJP counseling seemingly does not even fall within the ambit of the rule on attorney-client relationships:

0131b(2)(1) "Proceeding". As used in this section, "proceeding" means a trial - level proceeding by general or special court-martial or an investigation under Article 32, UCMJ.

0131b(3) "Attorney-client relationship". For purposes of this section, an attorney-client relationship exists between the accused and requested counsel when counsel and the accused have had a privileged conversation relating to a charge pending before the proceeding, and counsel has engaged in active pretrial preparation and strategy with regard to that charge. A counsel will be deemed to have engaged in active pretrial preparation and strategy if that counsel has taken action on the case which materially limits the range of options available to the accused at the proceeding.

0131b(3)(b) Actions that, in and of themselves, will not be deemed to constitute active pretrial preparation and strategy" include, but are not limited to: discussing the legal and factual issues in the case with the accused; discussing the legal and factual issues in the case with another person under the protection of the attorney-client privilege, such as another defense counsel; performing legal research dealing with the subject matter of the case; representing the accused in the review of pretrial confinement under R.C.M. 305, MCM; representing the accused in appellate review proceedings under Article 70, UCMJ; or providing counseling to the accused concerning Article 15, UCMJ. These actions should be appraised under a totality of the circumstances test to determine if they constitute "active pretrial preparation and strategy."

(emphasis added). I don't profess to be well read on JAGMAN 0131 or clairvoyant regarding the JAG's intent in amending section 0131. But, in a Chevron world, that's girlie-man agency discretion not military deference, JO'C, I'd say the portions I read are fairly clear that the JAG did NOT intend to alter the previous policy of no A-C relationship being created at pre-mast counseling. Thoughts?

Interesting amicus denied

Anybody have any more information on this Daily Journal entry from 18 Oct 07:

No. 07-0640/NA. U.S. v. David A. DEARMOND. CCA 200501343. Motion for leave to file brief on behalf of Amicus Curiae under Rule 26, filed by attorney Jacqueline M. Philips, in propria persona and as pro bono victim advocate counsel denied.

I believe Dearmond was an Art. 118(1) case, but he ended up pleading guilty to Art. 118(2). NMCCA issued its decision 31 May 2007 and on 24 July 2007, in the Daily Journal, CAAF released the appellate defense counsel (who was leaving active duty). But I couldn't find anything more to explain why a pro bono victim advocate amicus counsel wanted to file a brief. Perhaps a brief urging CAAF not to take the case? Any body else have any speculation here?

An answer on Gitmo resignation?

Two weeks ago, I noted the self-requested reassignment of Colonel Morris Davis as the chief prosecutor at Guantanamo Bay, and asked if anyone could share information explaining it. (See Gitmo prosection chief steps down?). It seemed a curious development, made all the more so by the apparent gag order given to Col Davis.

Apparently, that order has now been lifted. In this Washington Post article, Col Davis alleges that senior DoD officials, in a meeting a few weeks prior to the 2006 elections, discussed the "strategic political value" of bringing high-profile prosecutions. The article also quotes him as saying there is now a push to bring such cases to trial to show the public that 'the system is working' before the 2008 elections.

Haditha charges

Yesterday's Washington Post included an AP piece indicating that charges had been referred against two Marines arising from the deaths of civilians at Haditha. Here's a link. One of the accused is LtCol Jeffrey R. Chessani. The article indicates that he "faces charges of dereliction of duty and violation of a lawful order for allegedly failing to accurately report and investigate the Nov. 19, 2005, killings of 24 Iraqis." The article indicates that Gary Solis characterized LtCol Chessani as "the most senior U.S. serviceman since the Vietnam War to face a court-martial for actions or decisions made in combat."

Lieutenant General Mattis also referred charges against LCpl Stephen B. Tatum. He is reportedly charged with involuntary manslaughter, reckless endangerment and aggravated assault. The Article 32 IO, LtCol Paul J. Ware, had reportedly recommended against referring LCpl Tatum's case to a court-martial.

Military justice research links

I've put the PowerPoint show for my lecture at Friday's JAA Appellate Advocacy Symposium up on CAAFlog.com. Here's a link, minus the Unfrozen Caveman Lawyer picture.

Also, as a follow-up to that presentation, I'm collecting military justice links. I've created a new link list on the right side of this page called, "Military justice research links." I've included an MSWord version of the UCMJ with the amendments that took effect on 1 October 2007. This is something I created for the statutory supplement to the military justice casebook that Gene Fidell, Beth Hillman, and I recently completed. If anyone discovers any typos or other errors, please let me know.

I've also included links to the 2005 edition of the MCM (gosh I hope a new version comes out soon) and each service's reg supplementing the MCM. One recurring source of frustration to me is the unavailability of Air Force regs on the web. So I've put AFI 51-201--the Air Force's equivalent of the JAGMAN or AR 27-10--up on CAAFlog.com and linked to it in the military justice research links on the right side of this page.

I'll continue to build that link list to provide one-stop-shopping for the most commonly used military justice publications.

Any feedback would be greatly appreciated. No Man, is there a better, more user friendly way to do it?

Non-jurisdictional case distributed for conference

Gowanlock v. United States, No. 07-6927, has been distributed for the Supremes' 2 November 2007 conference.

Big Wheels Keep On Turning . . . But Very Slowly

For those that watch the CAAF Daily Journal you will notice that CAAF disbarred four former JAs recently. I did a Google search on all the attorneys and each went to general court-martial for various offenses. One in particular, Kirk A. McDaniel, just caught my eye. And why you ask? Because the wheels of military justice, though they keep on turning, apparently are very large and move very slowly. Here is the timeline for former Marine JA, and CAAF bar member, McDaniel:

18 Apr 1997: Charged with various offenses stemming from a positive urinalysis and a false statement in connection with the NJP and BOI of a friend while he was a trial counsel
4 Sep 1997: Pleads guilty to some offenses, convicted of cocaine use, 15 months confinement
1998: USMC "disbars" him
1998: Case sent to NMCCA (see CCA number on CAAF Daily Journal)
12 Aug 2002: Filed a petition for review at CAAF
16 Jan 2003: Petition at CAAF denied
22 Feb 2005: Suspended from practice of law in PA for 366 days
11 Oct 2007: Disbarred from CAAF (just over a decade after his conviction)

July Army Lawyer online

TJAGLCS is pumping out the periodicals. The July issue of the Army Lawyer is now out. Here's a link.

The issues Foreword explains that it is a "special joint service edition of The Army Lawyer." The "issue focuses on international and operational law topics," including an article about international law and the military commission system and another about the Central Criminal Court of Iraq.

SG waives response to unjurisdictional military cert petition

We previously discussed the pro se IFP cert petition in Gowanlock v. United States, No. 07-6927. The case doesn't fall within the Supremes' statutory cert jurisdiction because CAAF denied review in the case. On 15 October, the SG waived his right to respond to the petition -- obviously an easier route to the same result compared to moving to dismiss it.

There is no change in the status of either H.R. 3174 or S. 2052.

Daily Journal Roundup & CAAF's Latest Amicus Injustice

As we previously discussed here, CAAF has previously granted law student amicus motions in a case where it rejected an amicus motion from counsel for a military death row inmate where, in the inmate's counsel's view, the facts of the case were similar to his client's case. Today CAAF not only said it would accpet amicus briefs from law students in a case, but did so based on a tardy motion for amicus curiae briefing. Today's Daily Journal notes that students from Indiana University School of Law Bloomington filed a "motion for leave to submit Amicus Curiae briefs belatedly" in U.S. v. Pack (a Crawford confrontation argument case). The Court granted the motion and allowed 10 minutes for oral argument.

While I do not begrudge law students the opportunity to make real arguments in real courts, might this also be a good opportunity to introduce law students to the practice of criminal law post-AEDPA? My first law student practice case was occasioned by the judge informing me that I had not filed a notice of alibi defense and any argument or witnesses about my client's alibi would be excluded. Considering that another law student dumped the case in my lap less than a week before the bench trial, and after the alibi notice deadline (Ohio Crim R. 12.1), I didn't exactly want to kill myself over it. But, I don't think I will ever forget to file a notice pleading. Just a thought.

Round Up:

Anyone have any information on the two latest extraordinary writs to hit the Journal:

Repeat offender (to the DJ, here, here, and here) Morton is back:

Misc. No. 08-8001/CG. Thomas A. MORTON, Appellant v. Captain Brian Judge, USCG, Military Judge and United States, Appellees. CCA 003-07. Notice is hereby given that a writ-appeal petition for review of the decision of the United States Coast Guard Court of Criminal Appeals on application for extraordinary relief was filed under Rule 27(b) on this date.

Also, anyone with gouge on this one from Oct. 11:

Misc. No. 07-8022/AR. G. Jerome HURLEY, Appellant v. Lieutenant Colonel John M. Head, Military Judge, and United States, Appellees. CCA 2007-0865. On consideration of the writ-appeal petition, Appellant’s motion to stay proceedings, and Appellant’s motion to suspend rules and to supplement the record, it is ordered that said motion to suspend rules and to supplement the record is hereby granted; and that said motion to stay proceedings and that said writ-appeal petition are hereby denied.

To quote Wilber Harrison, Goin' to Kansas City, Kansas City here I come

I'll be spending a couple of days on the shores of the Missouri River -- well, the west bank of the Missouri River, to be precise. One might even say I'll be on the Missouri River's Rive Gauche. I'm looking forward to checking out the sidewalk cafes.

I hope that the No Man, the Kabul Klipper, et al., keep up the chatter while I'm gone. I should be back in the CAAFlog saddle Thursday night. Au revoir!

Resource alert

The June issue of the Army Lawyer, which includes the second half of the military justice symposium, is now online here.

Supremes deny cert for half of DAD duo

Today's order list included the denial of certiorari in Sanchez v. United States, No. 07-356.

New published Air Force Court preemption doctrine decision

The Air Force Court of Criminal Appeals' web site has posted a brief published case dealing with the preemption doctrine. United States v. Benitez, __ M.J. ___, No. ACM S31093 (A.F. Ct. Crim. App. Oct. 5, 2007).

The decision quotes United States v. Kick, 7 M.J. 82, 85 (C.M.A. 1979), for the proposition that the preemption doctrine is the

legal concept that where Congress has occupied the field of a given type of misconduct addressing it in one of the specific punitive articles of the code, another offense may not be created and punished under Article 134, UCMJ, by simply deleting a vital element. However, simply because the offense charged under Article 134, UCMJ, embraces all but one element of an offense under another article does not trigger operation of the preemption doctrine. In addition, it must be shown that Congress intended the other punitive article to cover a class of offenses in a complete way

Benitez, slip op. at 2.

The Air Force Court rejected A1C Benitez's argument that the preemption doctrine prohibits criminalizing the sale of stolen non-military property under Article 134 because it is a mere residuum of the Article 108 offense of selling stolen military property. Id., slip op. at 3.

The Air Force Court also rejected an argument for an intra-Article 134 preemption doctrine, holding that the enumerated Article 134 offense of knowingly receiving, buying or concealing stolen military property does not preclude treating selling stolen non-military property as a novel Article 134 offense. Id.

Marketing CAAFlog: Vote for Best Law Blog

Though we will never come close to those mass appeal legal blogs, we here at CAAFlog (or at least No Man) wouldn't mind being on a list with all those other top law blogs in the Best Law Blog poll. Vote here by pasting the CAAFlog web address (http://caaflog.blogspot.com/) and, if you're ambitious, our feed address (http://caaflog.blogspot.com/feeds/posts/default) into the comments section (you can comment anonymously). Once we get in the running, others can vote by clicking on the "+" sign, me too button. Thanks!

Marketing Article 25

I thought I would bring up something that caught my attention while I was deployed. Many readers are probably familiar with AFN--American Forces Network, formerly known as Armed Forces Network. AFN provides commercial American television programming to service members stationed all over the world. During commercial breaks, AFN runs military-oriented public service spots instead of commercials. They usually deal with subjects such as operational security or drug abuse prevention. A surprising number of them, however, deal with legal matters. Viewers considering changing their state of legal residence, for example, are cautioned to visit their legal office for all the pros and cons before making any rash decisions. If you're thinking about getting a power of attorney, check with the legal office to decide whether you really want to grant general power of attorney. The spots have pretty high production values. They feature professional actors and clever scenarios to make their points.

One spot in particular made me do a double take. A woman dressed in a business suit that claimed to have been both a judge advocate and a civilian lawyer delivers a message favorably comparing an accused's rights at a court-martial to a defendant's rights at a civilian trial. One comparison in particular made me do a double take. The speaker said that a military accused has a superior right to a trial by his or her peers at a court-martial compared to a civilian trial. There’s no explanation for that conclusion, it’s just one item in a short list of areas in which courts-martial are favorably compared to civilian trials. If by peers the speaker means superiors she might be on to something. Otherwise, I don’t think it’s a defensible statement. I’m not even aware that Article 25 is calculated to produce a panel of the accused’s peers; for better or worse that’s one of the most distinctive things about a court-martial.

Who’s responsible for the spot, anyway? Someone must have thought it necessary to market the UCMJ to the service members that are subject to it. Is there some larger concern for the UCMJ’s image in the service that I’m not aware of? Was there JAG input into the spot? Into the script?

I only saw the spot one or two times. Maybe an overseas reader can fill in a little more. And if anyone knows what the producers of the spot were trying to accomplish, I'd like to know.

NCIS reportedly considering policy requiring taping of interrogations

NIMJ has posted an important news article about NCIS's consideration of a policy to require the taping of interrogations. Here is a link.

Interestingly, an NCIS spokesperson says, "Our current policy is the same as other federal law enforcement agencies -- recording of interviews is neither required nor prohibited." If it is true that NCIS has no policy against recording interrogations, that is in itself a step in the right direction. In 1996, the NCIS Special Agent who interrogated a suspect in a homicide case understood that his agency prohibited recording interrogations. In the case of United States v. Quintanilla, Special Agent Bolden testified that he had not taped his interrogation of Sergeant Quintanilla, but NCIS had videotaped a walk-through of the crime scene. Record at 187-88. The defense counsel then asked, "So although NCIS can go through and videotape the crime scene, it couldn’t videotape the interrogation?" Id. SA Bolden replied:

That's a totally different situation, sir. I don't know the rules and regulations on it. I would have to check with Headquarters to be sure. We have – over my 17 years of law enforcement I have never been given permission to do that by our legal people at Headquarters nor have we conducted any type of interviews on videotape, with the exception of child abuse cases, sir.

Id.

Several states and localities have adopted the eminently reasonable requirement that stationhouse interrogations in serious felony cases be recorded. Illinois, for example, has a statute that treats stationhouse confessions as presumptively inadmissible for certain offenses unless they were recorded. 725 ILCS 5/103-2.1. The sponsor of Senate Bill 15 that led to this statute? State Senator Obama.

Can anyone fill us in on OSI, CID, and CGIS policy on recording interrogations?

Joint Services Committee circulates proposed MCM changes

The 24 September issue of the Federal Register included the Joint Service Committee's latest proposed changes to the MCM. A public hearing will be held on the proposed changes on 19 October 2007 at 10 a.m. in the 14th Floor Conference Room, 1777 N. Kent St., Rosslyn, VA 22209-2194. Written comments must be received by 27 November.

Here's a link to the proposed amendments.

New published Coast Guard Court decision

The Coast Guard Court issued a published opinion addressing three interesting issues. United States v. O'Donnell, __ M.J. ___, No. 1250 (C.G. Ct. Crim. App. Oct. 11, 2007).

The first issue is whether information in the government's sentencing case that is inconsistent with an accused's plea can require the military judge to reopen the providence inquiry. Yes, rules the Coast Guard Court. Id., slip op. at 4. But the court establishes a fairly high threshold: "the plea's providence is only brought into question if government sentencing evidence creates the appearance of a substantial basis in law or fact for questioning the plea. If the Government does so, then the military judge must reopen the Care inquiry to ensure a providence plea." Id.

The second issue is whether the CA must review clemency materials before he acts on the case if he previously saw those materials when deciding whether to defer confinement. Yes under the facts of this case, rules the Coast Guard Court. "[G]iven the passage of a significant amount of time between the clemency petition's initial review in June and the action in October, the record does not convince us that the Convening Authority considered the clemency petition at the time of action, as was his duty to do." Id., slip op. at 6.

The most significant portion of the opinion addresses the recurring issue of how much uncharged misconduct the government can throw into its sentencing case. Not this much, holds the Coast Guard Court. In this case, Chief Warrant Officer O'Donnell pled guilty to "stealing a total of six items on two specific instances within a 3-month period." Id., slip op. at 9. The government presented evidence in its sentencing case that "tended to show that Appellant stole an additional 1600 items from the Coast Guard at undefined times, and unknown but probably widely dispersed locations, over the course of a 32-year period." Id. The court held, "Under these circumstances, we do not find the link between the charged and uncharged misconduct direct as required by R.C.M. 1001(b)(4) or 'closely related in time, type, and/or often outcome." Id. (quoting United States v. Hardison, 64 M.J. 279, 282 (C.A.A.F. 2007)).

In rejecting the government's argument that the defense opened the door by presenting good military character evidence AFTER the government had put on its evidence of 1600 stolen items, Judge Felicetti turned a nice phrase: "[T]he Government cannot transform the defense's attempt to rebut Prosecution Exhibits 5 and 7 into an independent basis to admit them, or claim that the defense opened the door for their admission. The Government, in order words, forced open the metaphorical door and cannot claim they were invited in because the defense turned on the heat to counter the draft." Id., slip op. at 10-11.

What are the Vegas odds on whether the Judge Advocate General of the Coast Guard will certify the case to CAAF?

MCM Amendments

On 28 September, the President signed Executive Order 13447 amending the Manual for Courts-Martial. See 72 Fed. Reg. 56,179 (Oct. 2, 2007). The text of the amendments is available here. Now can we finally have a new MCM? (See my previous rant here.)

No Man resource alert

By now we all know that the No Man has two great obsessions in life: (1) Apprendi, and (2) theories for prosecuting civilians in military theaters of operation. (No Man, how on earth did THOSE become your two great obsessions in life?) NIMJ's web site has a new report relevant to the second of those obsessions. Here's the lead of the Woodrow Wilson School's press release announcing the report:

PRINCETON – OCT. 1 – The Program in Law and Public Affairs (LAPA) at Princeton University’s Woodrow Wilson School issued a report today proposing a framework for handling the legal regulation of military contractors.

The report resulted from a meeting in June that brought together senior military and government officials, contractors, academic experts and Washington policymakers (see participant biographies) to discuss how security contractors working in zones of conflict should be trained, integrated with military forces, and held accountable. The group signed off on the summary report this week.

The rest of the press release is here.

Just for fun

If you have a couple of spare moments, you might want to take the NIMJ quiz, which you can find here. And if you get 100%, you can even print off a certificate suitable for framing. :-)

S. 2052 co-sponsors

The Kabul Klipper notes below that Senator Feinstein has introduced S. 2052 to expand the Supremes' statutory cert jurisdiction over military justice cases. The bill has two co-sponsors: Sen. Russ Feingold (D-WI), and Sen. Arlen Specter (R-PA). The bill has been referred to the Senate Judiciary Committee. Here's a link to the bill's Thomas status page.

New military cert petition

Wednesday's update of the Supremes' electronic docket included a new pro se IFP military cert petition: Gowanlock v. United States, No. 07-6927.

There are a couple of interesting things about Gowanlock. First, CAAF denied his petition for grant of review. United States v. Gowanlock, 64 M.J. 435 (C.A.A.F. 2007) (order). So the case doesn't fall within the Supremes' statutory cert jurisdiction over CAAF decisions. See 28 U.S.C. § 1259. We have, of course, repeatedly discussed Representative Susan Davis's H.R. 3174, which would expand the Supremes' statutory cert jurisdiction to cover all final rulings by a CCA or CAAF. And the Kabul Klipper notes the filing of S. 2052, with a similar purpose, in his post below.

The second interesting thing about the petition is that it was filed on 2 May, but was finally docketed on Tuesday, with an 8 November response date. Does anyone know why there would be such a long gap between filing and docketing?

Despite the fact that the petition doesn't fall within the Supremes' statutory cert jurisdiction, recent practice suggests that the SG will waive his right to respond rather than moving to dismiss. And the Supremes will then quietly deny cert.

S. 2052 Information

A former client of mine that felt shortchanged by 29 U.S.C. § 1259's jurisdictional inequities forwarded me a link to Senator Feinstein's (D-CA) press release on the introduction to S. 2052. This is Senate bill related to H.R. 3174, the subject of some discussion on this blog. Senator Feinstein's floor speech can be found here.

Yeah, I figured out how to do hyperlinks.

Non-CAAF Coverage: 11th Cir. Good News - Bad News Day for Servicemembers

Servicemembers in the 11th Circuit, the good news is you now may be able to sue that government contractor that injures you while on duty. The bad news . . . you now may be able to sue that government contractor that injures you while on duty. The Eleventh Circuit decided last week, opinion here, that the servicemembers killed during a Presidential Air flight in Afghanistan had the right to sue the government contractor operating the flight. The court, while not holding that Feres could never bar a servicemember suit against a government contractor, held that in this case the derivative-Feres theory asserted by the contractor was inapplicable and suit was not barred by the political question doctrine.

So where is the bad news you say? Remember my fascination with the Art. 2, UCMJ Amendment? Here is what the court said about the "discipline strand" of Feres:

The discipline strand of the third Feres rationale does not have application in the context of private contractors. In Shaw [v. Grumman Aerospace Corp., 778 F.2d 736, 740 (11th Cir. 1985)], we noted that the “essential military discipline” rationale itself embodies two concerns: “(1) the notion that a soldier might use the civilian courts to challenge the act or order of a superior officer; and (2) the idea that in a civilian suit of any sort involving a serviceman, members of the military might be compelled to testify against one another.” Id. at 742. We concluded that neither concern would justify protection of the military contractor. In the first place, the concern that a soldier might use a suit to challenge a superior officer is absent because a private contractor is not in the chain of command. Id. at 742-43. That observation is equally true where the private contractor happens to be an agent of the government.

OK, so maybe this is a case of "to a man with a hammer everything looks like a nail." But, isn't there a problem, after the recent Art. 2 amendment, with saying that there is no "discipline" issue in a case dealing with private contractors in Afghanistan? I think that this case could, if used deviously, incrementally erode Feres which, as the title of this post suggests, is the bad news, in my opinion.

ACCA's Zak opinion

Specialist Zak and Specialist C were good friends. The prosecution and defense cases agreed that one night, after Specialist C had consumed large amounts of alcohol, Specialist Zak inserted his penis into her vagina. But the prosecution and defense presented very different accounts of what led up to this.

The prosecution and defense also agreed that two months before the incident, while the two were watching a movie together, Specialist C reenacted a scene from a movie by going into Zak's kitchen, removing her shirt, and spraying whipped cream over her breasts. The two's account of this event varied slightly.

Zak contended that two to four weeks after that incident, he gave a full body massage to Specialist C, by the end of which she was clad only in her panties. Specialist C denied that event occurred. The military judge refused to allow Zak to testify to the members about that event, relying on Military Rule of Evidence 412 and ruling:

I do not believe that this incident happened. I find the accused's testimony to be self-serving and incredible. If such an incident had happened, surely it would have been mentioned by the accused before now, and surely it would have been part of the original defense motion for the 412 relief. The accused admitted as much in cross examination when he stated that he considers a massage given in a semi-nude state to be "sexual activity."

Held: Reversed. United States v. Zak, __ M.J. ___, No. ARMY 20050051 (A. Ct. Crim. App. Oct. 5, 2007).

CAAF has emphasized, "In applying Mil. R. Evid. 412, the judge is not asked to determine if the proferred evidence is true; it is for the members to weigh the evidence and determine its veracity." United States v. Banker, 60 M.J. 216, 622 (C.A.A.F. 1996).

Citing this provision from CAAF's Banker opinion, ACCA ruled:

We disagree . . . with the military judge's exclusion of evidence of appellant's mostly-nude massage of SPC C. The footnote to the military judge's findings referencing the massage clearly reveals that she did not evaluate the evidence under the two-prong analysis required under Mil. R. Evid. 412 and the Banker and [United States v. Andreozzi, 60 M.J. 727 (A. Ct. Crim. App. 2004), petition denied, 62 M.J. 309 (C.A.A.F. 2005)] decisions . . . . Rather, she excluded the evidence because she did not "believe that this incident happened" and found appellant's "testimony to be self-serving and incredible." . . . [The] military judge's ruling on the veracity of the evidence usurped the role of the panel members, was clear error, and, as a result, an abuse of discretion. At a Mil. R. Evid. 412(c)(2) hearing, the military judge is to determine whether the evidence is relevant and falls into one of the listed exceptions -- not whether the evidence is true.

Zak, No. ARMY 20050051, slip op. at 12 (internal citations omitted).

CAAF denied 1LT Watada's writ appeal on the same day a federal judge enjoined proceedings

Today's CAAF daily journal update included Friday's orders. Included was a summary disposition of 1LT Watada's writ appeal:

Misc. No. 07-8023/AR. Ehren K. WATADA, Appellant v. Lieutenant Colonel John M. Head, Lieutenant General Charles Jacoby, and United States, Appellees. CCA 20070834. On consideration of the writ-appeal petition for review of the decision of the Army Court of Criminal Appeals and the motion for immediate stay of proceedings, it is ordered that said motion for stay is hereby denied, and that said writ-appeal petition is hereby denied.

Watada v. Head, __ M.J. ___, No. 07-8023/AR (C.A.A.F. Oct. 5, 2007).

Coincidentally, on that same day the U.S. District Court for the Western District of Washington issued a preliminary injunction halting 1LT Watada's court-martial. Watada v. Head, No. C07-5549BHS (W.D. Wash. Oct. 5, 2007). We discussed that injunction here.

ACCA issues publsihed rape shield opinion

ACCA has released a published opinion setting aside a rape conviction because a military judge erroneously excluded evidence concerning an alleged prior incident between the accused and the alleged victim. United States v. Zak, __ M.J. ___, No. ARMY 20050051 (A. Ct. Crim. App. Oct. 5, 2007). I'll try to post a short synopsis later tonight.

Supremes deny cert for Bolling trio

Today's order list included denials of certiorari in Erickson v. United States, No. 07-316; Chapman v. United States, No. 07-317; and Tippit v. United States, No. 07-318.

Roger Williams University Law Review's military law symposium issue

The military law symposium issue of the Roger Williams University Law Review is now out, though you wouldn't know it by checking the law review's web site. If you click on the link labeled "Download/View the Current Issue Table of Contents," you will get a pdf that is neither a table of contents, nor from the current issue. Rather, it's a masthead from the Fall 2005 issue. And the "Visit the Law Review Table of Contents Archive" link hasn’t been updated since 2003.

But if you somehow manage to find the Spring 2007 issue, it includes several worthwhile articles. It starts with an introductory essay by Professor Jon Shelburne. The issue also includes articles about military commissions and operational law. It ends with an interesting piece about the effects of stop loss policies on military lawyers. Captain Elizabeth Cameron Hernandez, The United States Army Reserve: Welcome to the Hotel California, We Are All Just Prisoners Here, 12 Roger Williams U. L. Rev. 904 (2007).

The article of greatest relevance to CAAFlog's mission is a provocative essay by Eugene R. Fidell. Is There a Crisis in Military Appellate Justice, 12 Roger Williams U. L. Rev. 820 (2007). The article is the text of a lecture that Eugene Fidell the Sagacious (EFTS) gave at Roger Williams on 31 March 2006. As Professor Shelburne notes in his introductory essay, the lecture preceded the Moreno earthquake, as well as the Hamdan v. Rumsfeld shift of tectonic plates. Those seismic events have altered the military justice landscape. This essay, which is interesting and important in its own right, also serves as a pre-Moreno/Hamdan time capsule, reminding us of just how much the ground has shifted over the past 18 months.

EFTS first notes the insularity of the military justice system, reflected by the paucity of civilian court citations to military appellate decisions. Id. at 821. EFTS then notes "a remarkable indication of congressional disdain for the military appellate system[:] . . . Congress conferred on the United States Court of Appeals for the District of Columbia Circuit judicial review authority over the military commissions and Combatant Status Review Tribunals. . . . So far as [is] known, no consideration was given to conferring that appellate authority on the Court of Appeals for the Armed Forces, where – at least as to the military commissions – one would expect it to reside . . . ." Id. at 821-22. Three months after EFTS uttered those words, of course, the Supreme Court held that the military commission system was "illegal." Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2793 (2006). Interestingly, when Congress established a new military commission system in Hamdan’s wake, it expressly considered placing CAAF in the military commission appellate chain. The 14 September 2006 version of S. 3901 that emerged from the Senate Armed Services Committee would have made commission convictions reviewable by CAAF with further review potentially available from the Supreme Court by writ of certiorari. But Congress ultimately rejected this approach in favor of an appeal to a newly created Court of Military Commission Review followed by an appeal as of right to the D.C. Circuit with the possibility of a cert petition to follow. See 10 U.S.C. § 950g. At that time, I was the Chief Defense Counsel for the military commissions system, so I followed these legislative developments closely. One high placed official, who was in a position to know, told me that the appellate authority was shifted from CAAF to the D.C. Circuit because some foreign governments were mistrustful of sending commission appeals to a "military" court and wanted them to go to an Article III court, which was perceived as more independent, instead. While those of us immersed in the military appellate system would find it laughable to suggest that CAAF is subservient to DOD, it's an interesting example of how labels and wire diagrams – see 10 U.S.C. § 941 – can create unwarranted image problems. Didn't someone suggest recently that the time has come to move CAAF's administrative supply line from DOD to the Administrative Office of the U.S. Courts? That experience demonstrates the wisdom of considering such a move.

While arising in the context of discussing the Detainee Treatment Act of 2005’s snub of CAAF, EFTS's essay also subtly tweaks CAAF for the small size of its docket, observing, "Roughly speaking, since the 2004 term, the court has issued about one decision per judge per month." 12 Roger Williams U. L. Rev. at 823. It will be interesting to see whether the recent change in CAAF's personnel results in more grants of review.

The article also expresses concern with the practice of "at least one" CCA (NMCCA) of "designat[ing] a single panel member to read the record of trial." Id. EFTS argues, "Considering the unique powers of those courts to set aside findings of guilt and reduce sentences, the 'reader judge' approach is disturbing." Id. (footnote omitted).

EFTS then sagaciously observed, "Of all the problems currently vexing the system, the gravest, in my opinion, is that of delay. So far, the Court of Appeals has been unable to find a way to remedy this. . . . But the real problem lies with the courts of criminal appeals – mostly, but not exclusively, the United States Navy-Marine Corps Court of Criminal Appeals." Id. at 824. Of course, what happened over the next 18 months is largely a happy tale. Forty-one days after Gene's lecture, CAAF would issue its opinion in United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006). Following Moreno, both NMCCA and the NAMARA appellate codes received additional personnel and the number of high enlargement cases has been reduced to a handful. This demonstrates that solutions can be found for even seemingly intractable problems. But in my almost 20 years of studying the military justice appellate review system, the problem of inordinate post-trial delay has been cyclical. Now that the problem is largely fixed, the personnel who fixed it are being reassigned to other duties. It remains to be seen whether post-trial processing times will balloon again.

EFTS also discusses more sweeping military appellate reform. For example, he observes, "There is a conversation to be had as to whether the military appellate layer cake is too complicated, and whether the service courts should be abolished." 12 Roger Williams U. L. Rev. at 826. He then suggests that "the UCMJ could usefully be amended by providing for the appeals as of right to the Court of Appeals [for the Armed Forces] across-the-board. The court can manage its caseload by ruling summarily on many cases. Dispensing with the petition [stage] would save time and effort all around. It would also afford GIs the same right to petition for discretionary review by the Supreme Court as other criminal defendants enjoy. The current discrepancy is indefensible." Id. at 827 (footnote omitted).

EFTS then suggests the possibility of eliminating the services' appellate defense shops and tasking trial defense counsel with litigating their cases on appeal as well. Id. at 827-29. He also mentions the possibility of civilian members of CAAF's bar being voluntarily appointed to CAAF appeals to provide pro bono representation. Id. at 829. He argues, "This would entail no expense to the government but would give military accused and the appellate military courts the benefit of a truly fresh, outside look at the cases." Id.

So much has changed over the past 18 months that I would love to see a pocket part updating this article. Perhaps some legal education institution--such as EFTS’s and my shared alma mater, the Naval Justice School--could invite Gene to make an address in March 2008 called something like, "Is There a Crisis in Military Appellate Justice? – Two Years Later," and publish his remarks.

NJP standard of proof

Sierra Delta, whose comments I always enjoy reading, made the following point about the post below:

How is the Navy's "preponderance of the evidence" standard for NJP supportable in light of the Army's "beyond a reasonable doubt"?

I would think that would be the more productive ground for challenge, vice any perceptions that Navy counsel are giving inadequate advice.

A few years ago, the Army Lawyer published this interesting piece: Captain Shane Reeves, The Burden of Proof in Nonjudicial Punishment: Why Beyond a Reasonable Doubt Makes Sense, Arm. Law., Nov. 2005, at 28. Here's a link. The article included this helpful guidance:

Commanders in the U.S. Army must find guilt beyond a reasonable doubt. U.S. DEP'T OF ARMY, REG. 27-10, LEGAL SERVICES: MILITARY JUSTICE para. 3-16(d)(4) (27 Apr. 2005) [hereinafter AR 27-10]. Navy, Marine, and Coast Guard commanders must find guilt by no less than a preponderance of the evidence. U.S. DEP'T OF NAVY, NAVY JAG MANUAL para. 0110(b) (1990) [hereinafter NAVY JAG MANUAL]; U.S. COAST GUARD, COMMANDANT INSTR. M5810.1, MILITARY JUSTICE MANUAL para. 1.D.1.f (17 Aug. 2000) [hereinafter MJM]. In the Air Force, no specific standard of proof applies to NJP proceedings; however, because beyond a reasonable doubt is used in courts--martial, which an accused may elect, commanders are urged to consider this standard before initiating NJP proceedings. U.S. DEP'T OF AIR FORCE, INSTR. 51-202, NONJUDICIAL PUNISHMENT para. 3.4 (3 Nov. 2003)[hereinafter AFI 51-202].

Id. at 29 n.7.

And the Tony doesn't go to . . . the Journal of Military and Veterans Law

Every year, the American Theatre Wing awards one Tony for Best Revival of a Play and another for Best Revival of a Musical. If there were a third award from Best Revival of an Online Law Review, the Tony should not go to the Journal of Military and Veterans Law.

The original electronic journal by that name debuted in 1999. But it now seems to have disappeared from the web without a trace. If you go to its old URL, the William & Mary server will tell you, " The URL you requested was not found on the William & Mary webserver." Perhaps this is a cautionary tale for would-be web authors. I had an article in Volume 1, No. 1 of the Journal of Military and Veterans Law. I might as well have shoved my manuscript into a bottle and thrown it into the Chesapeake Bay.

But now there is a revived version of the Journal of Military and Veterans Law on the William & Mary server, though curiously without any links to content from the old journal of the same name. The web site tells us:

The Journal of Military and Veteran Law is a student edited electronic legal periodical published by the Military Law Society of the College of William & Mary Law School. The purpose of the Journal is to publish insightful and relevant essays and articles in the areas of national security, military and veteran law.

The first article in the revived JMVL is Commander (Ret.) Wayne L. Johnson, JAGC, USN's piece with the inharmonious title of Sailors and Marines Have Fewer Legal Rights than other Military Members as Their Military Lawyers Are Restricted in the Pre-Article 15 Advice They May Provide. 1 J. Mil. & Vet. L. 1 (2007).

More is wrong with the piece than its title. Nevertheless, as I will discuss below, every Marine Corps and Navy defense counsel and every civilian counsel litigating a Marine Corps or Navy court-martial should read the first two-and-a-quarter pages of the piece.

The article is short -- just 8 single-spaced pages -- and unscholarly. Normally both of those traits might be assets, but the article breaks with scholarly conventions so abruptly as to become a liability. The writing is overly alarmist, highly anecdotal, and casual -- at one point even using an exclamation point (an exclamation point!): "What made the matter even worse from the military's point of view was that Fairchild had admitted to his illegal drug use from the start!" Id. at 6. To quote the guru: "An exclamation mark is rarely justified in legal writing except in a direct quotation." Bryan A. Garner, The Redbook 1.72 (2d ed. 2006). The article's exclamation point was not the exception that proves Garner's rule.

The article concerns Booker's requirement that for a record of nonjudicial punishment to be admissible at a later court-martial, the servicemember must have received an opportunity to consult with counsel about whether to accept NJP. United States v. Booker, 5 M.J. 238 (C.M.A. 1977), modified by United States v. Mack, 9 M.J. 300 (C.M.A. 1980). On the authority of a little-cited 1987 Federal Circuit opinion, the author claims that the Department of the Navy's current pre-NJP counseling practice leaves the service vulnerable to "being sued in the federal courts for potentially hundreds of millions of dollars." Id. at 2. When I read this, I had two thoughts. The first, of course, was of Dr. Evil raising his pinkie to his lips and demanding "hundreds of millions of dollars." The second was roughly the same as General McAuliffe's reply to the Germans at Bastogne.

Here is the essence of the article's argument: "The court in Booker held that for Article 15 results to be admissible in a subsequent court-martial in aggravation, the accused must have been afforded an opportunity to consult with a military attorney as part of his or her decision to accept the Article 15 process or refuse it and request a trial by court-martial." 1 J. Mil. & Vet. L. at 2. "Currently Navy and Marine military lawyers are specifically forbidden from forming an attorney-client relationship" when providing pre-NJP advice. Id. at 2-3. "Specifically, they are forbidden from addressing the facts of the case or recommending whether the accused should accept Article 15 punishment or demand trial by court-martial. All they are allowed to do is explain to the accused what is already on the Article 15 (mast or office hours) rights form." Id. at 3.

That is the golden nugget in this article. In any Navy or Marine Corps court-martial sentencing case where the government seeks to introduce an NJP in aggravation, unless the accused was embarked on or attached to a vessel at the time of the NJP or (as is quite frequent) waived his or her right to consult with counsel, this provides a potential means to challenge the NJP's admissibility. The argument would be that admitting the record of NJP would be inconsistent with Booker and Mack because the naval service's pre-NJP advice does not rise to the level of "consultation."

But having delivered that golden nugget, the rest of the article offers only pyrite. It includes such clunkers as: "Many legal experts consider a decision from the Federal Circuit to be almost as good as one from the Supreme Court." Id. at 5. That sentence seems at once overly aggrandizing and overly dismissive. Most of the legal experts whose work I read refer to the D.C. Circuit, not the Federal Circuit, as the second most powerful, important, influential, and prestigious court in the land. On the other hand, I am struck with the mental image of a flashing neon sign on the Tayloe House reading, "The Federal Circuit: Almost as good as the Supreme Court!"

The article delivers this odd description of the Federal Circuit in an apparent attempt to lend gravitas to the crucial opinion of Fairchild v. Lehman, 814 F.2d 1555 (Fed. Cir. 1987) -- the decision that in the article author's imagination makes the United States government vulnerable to lawsuits worth a sum worthy of a Dr. Evil blackmail demand. Fairchild was published 20 years and 7 months ago. Shepard's tells us that in that time, it has been cited in 16 judicial opinions. An opinion that ventures out into the light of day less often than Punxsutawney Phil would seem an unlikely vehicle for a nine-figure judgment. And an unlikely vehicle it is.

In Fairchild, the record indicated that a Marine Corps lawyer provided pre-NJP advice to then-Sergeant John A. Fairchild and incorrectly advised him about the potential to be discharged based on the NJP. The Federal Circuit (Almost as good as the Supreme Court!) tells us: "Fairchild was misinformed when he was told that if he elected nonjudicial punishment he 'could not receive an adverse discharge.' Although Fairchild received the advice of military counsel, the advice he received was erroneous." Fairchild v. Lehman, 814 F.2d 1555, 1559-60 (Fed. Cir. 1987). The Federal Circuit then concluded: "On the basis of this advice, Fairchild waived his statutory right to trial by court-martial. We do not think that an accused can execute an intelligent waiver of his statutory right to trial when he has been misinformed of the consequences of electing nonjudicial punishment by counsel provided by the military." Id. at 1560. So the Federal Circuit upheld the District Court's ruling setting aside the NJP which, because Fairchild's admin discharge was based on the NJP, warranted setting aside the discharge as well. Id.

Here is the article's description of Fairchild:

Fairchild v. Lehman dealt with the insufficiency of pre-Article 15 attorney counseling involving urinalysis testing showing marijuana use. The resulting Article 15 was the basis later for an administrative discharge in 1983. . . . Fairchild filed a lawsuit in the Federal District Court for Eastern Virginia challenging the validity of his discharge that same year. In 1985 the District Court ruled in Fairchild's favor. The Navy appealed but the Court of Appeals for the Federal Circuit, in a unanimous 3-0 vote, upheld the lower court's decision. . . .

The Fairchild court expanded Booker and Mack to apply it [sic] to administrative discharges with an Other-Than-Honorable (OTH) characterization of military service.

1 J. Mil. & Vet. L. at 6 (footnotes omitted).

Wrong. The footnotes both preceding and following the reference to the "Fairchild court" in the paragraph above are to the opinion of the Federal Circuit (Almost as good as the Supreme Court!). And that is the relevant Fairchild opinion, of course, since in the event of any inconsistency it trumps the opinion from Judge Williams of the Eastern District of Virginia. And here is what the Federal Circuit actually said:

Because we affirm the district court's judgment with respect to nonjudicial punishment, and because Fairchild's Administrative Discharge Board proceeding was predicated upon the nonjudicial punishment he received, we find it unnecessary to discuss the district court's rationale for vacating the BCNR's decision on the Administrative Discharge Board proceeding.

Fairchild, 814 F.2d at 1560. So Fairchild most certainly does not apply Booker and Mack to administrative discharges.

But that is small potatoes compared to this howler: "All shore based Article 15s where the accused was never given the right to see a lawyer are also challengeable, as Fairchild creates an absolute right to an opportunity to consult with a lawyer as part of the Article 15 process. If not allowing a service member to fully consult with an attorney is improper, not allowing him or her to see one at all is far worse." 1 J. Mil. & Vet. L. at 7. This passage simply ignores what Fairchild actually said--indeed, what Fairchild was actually about. Fairchild didn't create a right to consult with a counsel. In Fairchild, the Marine had consulted with a counsel. Fairchild was actually about acting on the basis of erroneous advice from a military officer provided to the servicemember by the military.

And simply because the law recognizes a remedy for misadvice doesn't mean the law would provide any remedy for non-advice. Consider, for example, the collateral consequences doctrine. As a general matter, the law will not recognize an ineffective assistance of counsel claim based on an argument that the counsel failed to advise a criminal accused of collateral consequences that may flow from a conviction. BUT some courts recognize a misadvice exception to the collateral consequences doctrine. The Second Circuit, for example, has observed: "We have held that an attorney's failure to inform a client of the deportation consequences of a guilty plea, without more, does not fall below an objective standard of reasonableness. At the same time, we have implied that an attorney's affirmative misrepresentations on the subject might well constitute ineffective assistance." United States v. Couto, 311 F.3d 179, 187 (2d Cir. 2002) (citations omitted). So the article is wrong to extrapolate a right to be affirmatively advised of the consequences of an NJP from a right not to be misadvised about the consequences of an NJP.

In addition to this major problem with the article's thesis, it suffers from other smaller legal problems. For example, the article states that "monetary damages could be given for any restriction or extra duty punishments that were levied as well." 1 J. Mil. & Vet. L. at 8. The article fails to discuss how such damages could be awarded in light of the Feres doctrine. And the article contrasts NJPs with courts-martial by observing that a conviction is harder to obtain at the latter "as the standard to convict is 'beyond a reasonable doubt' and the formal rules of evidence apply." Id. at 1. The author appears to be unaware that an Army Regulation expressly applies the "beyond a reasonable doubt" standard to NJPs as well. U.S. Dep't of Army, Reg. 27-10, Legal Services: Military Justice para. 3-16(d)(4) (16 Nov. 2005).

Much like the Lost Colony of Roanoke, the original JMVL has disappeared. For the most part, the marketplace of ideas wouldn't suffer if Volume 1 of the revived JMVL suffered the same fate. But the Roanoke colonists at least left behind the word "Croatoan" carved into a tree. Perhaps before the revived JMVL's introductory essay disappears, someone can carve the following message into a tree outside the NLSO building at Naval Station Norfolk, which is a mere 90 miles north of Roanoke Island: "Challenge admissibility of naval NJPs based on limitations on Booker counseling."