Monday, October 22, 2007

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.


Christopher Mathews said...

Nice catch, CAAFlog. Junior is an interesting decision. I think the AFCCA got it mostly right, but with an important exception.

I have no particular qualm about allowing the military judge discretion to determine whether a failure to comply with regulations is sufficiently egregious to warrant granting Adcock credit. A finding of abuse of discretion allows a military judge to grant credit, but does not necessarily require it.

There are basically two theories that could justify awarding Adcock credit: as compensation to the detainee for a violation of his rights under the applicable regulation, or as a mechanism to disincentivate cutting corners that the service secretary has determined must be turned squarely. Where the violation has a de minimis impact on the detainee and is the product of excusable inadvertence or exigent circumstances, awarding credit may not be called for. So far, so good.

I'm less sanguine about the part of the Junior decision that concludes the Air Force confinement officials did not actually abuse their discretion. The least legally-defensible portion of the AFCCA majority's opinion in Adcock was the conclusion that the MCM grants confinement officials "broad discretion" to violate their own service regulations. CAAF had difficulty swallowing this argument, too, writing: To the contrary, the plain language of R.C.M. 304(f) clearly vests the service secretaries with the discretion to enact the rules but makes no reference to confinement officials.

Service regulations circumscribe the limit of subordinate officials' discretion. If the Secretary, by regulation, requires an MOA before a detainee can be placed in a civilian facility, and there is no MOA, then the confinement officer who decides to place a detainee in the civilian facility despite the absence of the mandatory MOA abuses his discretion. He may believe he has good reason for doing so; he might, for example, believe that the regulation is unduly onerous, or that noncompliance works negligible hardship on the detainee. He might even be right in his judgment. But if the regulation requires or prohibits certain actions, his judgment isn't particularly germane: he's obliged to do as he's told.

So: I'm generally in agreement that Junior need not be granted relief, but troubled by the CCA's apparent continued embrace of a philosophy that seems to suggest breaking the law is not an abuse of discretion.

No Man said...

CAAFlog one liner of the week,

I'm . . . troubled by the CCA's apparent continued embrace of a philosophy that seems to suggest breaking the law is not an abuse of discretion.

Anoyone that can use a Judas Priest song title with effect should get an award in my book.

John O'Connor said...

Putting aside whether or not one agrees with the notion of Adcock credit, I guess I just don't buy that sentencing credit is appropriate "as a mechanism to disincentivate cutting corners that the service secretary has determined must be turned squarely."

I might disagree with the other rationale -- that credit is appropriate "as compensation to the detainee for a violation of his rights under the applicable regulation" -- but I at least understand the logical reasoning, that this might be the accused's only (or best) opportunity to get relief from the violation of a reg. I might be unconvinced by that rationale, but there is a logical argument to be made that "somebody" has to vindicate an accused's rights under a service regulation because he can't really do it himself (what with being confined and all).

But the service secretary is more than able (unlike an accused) to take immediate and direct action when service personnel violate the Secretary's regulations. And if the answer is that the service secretary really might not care enopugh to do anything about violations of his/her regs, then why does it make sense for a court to vindicate a regulation that the Secretary finds insufficiently important to enforce himself/herself?

I do agree with Christopher Mathews' comment that it seems bizarre to argue that it's not an abuse of discretion to violate a service regulation. Maybe that should be the new defense to orders violations at courts-martial: "yes, I didn't follow the order, but it was within my discretion not to."

Christopher Mathews said...

As j'oc points out, the secretaries do have authority to police their services. However, they rarely exercise that authority directly, relying instead on the chain of command to do so for them.

In my opinion, it would have been far better (and far more effective) for the appropriate commanders at Travis AFB to have taken military justice action against their confinement officials. The unfortunate facts of Adcock, however, were that the chain of command utterly failed. The base confinement officials violated the regulation; the violation was brought to the attention of the SPCMCA's SJA, who at a minimum acquiesced in it; and their conduct provoked no reaction from the GCMCA or his legal staff. The record doesn't show whose bright idea it was to ignore the regulation in the first place, but it does show there wasn't anyone at Travis willing to enforce it.

In such a situation, Juvenal's query seems appropriate: who will guard the guardians of military justice? Absent anyone with a personal incentive to push the matter up the chain of command, it's not clear the secretary would even know his authority was being flouted. The person with the most immediate incentive to raise the issue is the detainee ... provided they can expect some sort of relief by doing so.

There's certainly an argument to be made that appellate courts have no business policing the integrity of the justice system, but it's not one I accept; when an appropriate enforcement mechanism exists, as CAAF found to be the case, I think courts should be willing to take it up. There's also an argument to be made that granting confinement credit isn't the most effective method of policing, and as I noted above, I'd agree; but you go to court with the remedies you have, not the remedies you'd like to have.

Anonymous said...

Isn't there another issue going on here that seems like it has been completely left out? This case came before CAAF decided Adcock. So isn't the argument that the military judge abused his discretion on account of applying the wrong law particularly at issue?

Seems to me that they'd have done better to have awarded 1 for 1 credit and just put the issue to bed.