Brown's essence

In Brown, the military judge (the universally respected Chief Judge Vowell) "instructed the members on rape" and three lesser included offenses including indecent assault. "She instructed the members that to find Appellant guilty of indecent assault, they could find he did so 'by inserting his fingers and penis, or fingers, or penis into [PFC NB's] vagina.'" United States v. Brown, __ M.J. ___, No. 07-0286, slip op. at 5 (C.A.A.F. Nov. 30, 2007). The members found Staff Sergeant Brown not guilty of rape but convicted him of the lesser included offense of indecent assault. The issue before CAAF in Brown was whether "the military judge erred by instructing the members that Appellant could be convicted of indecent assault based on any one of three factual scenarios, without requiring the members to vote on each scenario and to disclose the factual basis of their findings." Id., slip op. at 5-6.

CAAF definitively and unanimously answers, No. Judge Stucky's opinion for the Court reasoned:

With minor exceptions for capital cases, a "court-martial panel, like a civilian jury, returns a general verdict and does not specify how the law applies to the facts, nor does the panel otherwise explain the reasons for its decision to convict or acquit." United States v. Hardy, 46 M.J. 67, 73 (C.A.A.F. 1997). In returning such a general verdict, a court-martial panel resolves the issue presented to it: did the accused commit the offense charged, or a valid lesser included offense, beyond a reasonable doubt? A factfinder may enter a general verdict of guilt even when the charge could have been committed by two or more means, as long as the evidence supports at least one of the means beyond a reasonable doubt. Griffin v. United States, 502 U.S. 46, 49-51 (1991); Schad v. Arizona, 501 U.S. 624, 631 (1991) (plurality opinion) ("We have never suggested that in returning general verdicts in such cases the jurors should be required to agree upon a single means of commission, any more than the indictments were required to specify one alone.").

Id., slip op. at 9-10.

As Judge Mathews the Greatest indicates in his comment to the post below, it's hard to argue with that conclusion.

AF JAG certifies CA reassessment issue

An Air Force JAG certificate of review was filed at CAAF today, seeking review of the Air Force Court's unpublished decision in United States v. Perez, No. ACM 36799 (A.F. Ct. Crim. App. Sept. 12, 2007). (The Air Force Court's opinion is available here. Thanks, JMTGst!)

Senior Airman Perez was found guilty of rape, disobeying an order, and assault consummated by a battery. The military judge sentenced him to confinement for 18 months, a BCD, and reduction to E-1. After trial, the SJA's office discovered that the alleged rape victim had recanted. The CA ordered a post-trial Article 39(a) session. The military judge then found that credible evidence existed that the alleged victim had recanted and that that new evidence warranted a new trial. He also stated that had he been aware of the new evidence, he would not have convicted Perez of rape and that he would have imposed a sentence of only confinement for six months, reduction in grade, and total forfeitures for the remaining offenses.

Rather than order a new trial, the convening authority disapproved the finding of guilty to the rape offense. At the SJA's advice, the CA approved a sentence of a BCD, confinement for 206 days, and reduction to E-1. (Note that the MJ had said his sentence for the remaining offenses would not have included a punitive discharge.)

The issue before the Air Force Court was whether this action by the convening authority was an unreviewable exercise of clemency or a legal matter that could be subjected to the equivalent of a Sales/Peoples analysis. The Air Force Court concluded that it was the latter. The court reasoned:

In this case, although there was no error at the time of trial, thereafter new evidence was discovered. This evidence met the criteria, under R.C.M. 1210, for a new trial. Rather than ordering a rehearing on findings and sentencing or sentencing only, the convening authority decided to take other corrective action designed solely to provide an expeditious means to correct the error. See R.C.M. 1107(c)(2)(A), Discussion. In the case sub judice, the actions of the convening authority amount to corrective action based upon errors (new evidence) rather than action in the form of clemency.

The court then ruled that the CA erred in his reassessment when he approved a sentence greater than that which the MJ would have adjudged. The court reasoned:

The convening authority had the benefit of knowing exactly what the sentencing authority would have done, but he reassessed a sentence greater than that which the sentencing authority would have imposed absent the error (new evidence). Under the unique circumstances of this case, the correct standard would have been to order a sentence rehearing or apply the above referenced standard for sentence reassessment.

The correctness of that ruling is now before CAAF.

First opinion of the Term

CAAF released its first opinion of the Term today, which is available here. United States v. Brown, __ M.J. ___, No. 07-0286/AR (C.A.A.F. Nov. 30, 2007). Judge Stucky for a unanimous court upholding an unpublished ACCA ruling for the government.

Today's ruling results in Guert winning this year's pool. Guert, would you like the t-shirt or the book?

Additional briefing ordered in Larson -- UPDATED

On Tuesday, CAAF heard oral argument in United States v. Larson, No. 07-0263/AF. There were two granted issues in Larson. The first concerned whether Major Larson had a reasonable expectation of privacy in his government computer. The second concerned whether the civilian defense counsel was ineffective when, "in his opening statement, during findings, and again in closing argument, [he] conceded the Appellant's guilt to various charges and specifications."

Tuesday's oral argument didn't make it past the first issue. Apparently that left the Judges with some questions about the second. Today CAAF ordered supplemental briefing in Larson on the following two issues:

I. IN THE MILITARY JUSTICE SYSTEM, IS THE DECISION TO CONCEDE GUILT TO ONE OF MULTIPLE CHARGED OFFENSES DURING ARGUMENT A TACTICAL DECISION THAT COUNSEL MAY MAKE WITHOUT OBTAINING CONSENT OF THE ACCUSED? SEE FLORIDA v. NIXON, 543 U.S. 175 (2004); UNITED STATES v. CARE, 18 C.M.A. 535, 40 C.M.R. 247 (1969); UNITED STATES v. BERTELSON, 3 M.J. 314 (C.M.A. 1977).

II. ASSUMING, ARGUENDO, THAT COUNSEL MAY CONCEDE GUILT AS A TACTICAL MATTER AFTER CONSULTATION BUT WITHOUT CONSENT OF THE ACCUSED, DOES THE RECORD IN THE PRESENT CASE SUPPORT A CONCLUSION THAT COUNSEL CONSULTED WITH APPELLANT PRIOR TO MAKING SUCH A CONCESSION? IF NOT, WAS THE FAILURE TO DO SO PREJUDICIAL AS TO THE FINDINGS OR SENTENCE? SEE STRICKLAND v. WASHINGTON, 466 U.S. 669 (1984).

United States v. Larson, __ M.J. ___, No. 07-0263/AF (C.A.A.F. Nov. 29, 2007) (order).

Larson is shaping up to be a major decision on the division of authority between a lawyer and the client. CAAF seems to be particularly interested in issues concerning the attorney client relationship. Last week, CAAF remanded the Roach case to the Air Force Court for the limited purpose of allowing the defense to challenge AFCCA's listing of the Chief of the Appellate Defense Division as an "Appellate Counsel for the Appellant" even though she had never signed any submission to the Air Force Court in the case. United States v. Roach, __ M.J. ___, No. 07-0870/AF (C.A.A.F. Nov. 21, 2007) (summary disposition).

On 7 December, the Air Force Court revised its Roach opinion to delete the Chief of the Appellate Defense Division from the list of "Appellate Counsel for the Appellant."

[DISCLAIMER: I am one of Senior Airman Roach's appellate defense counsel.]

SG's opposition in Foerster

Here's a link to the SG's brief in opposition to the cert petition seeking review of CAAF's decision in United States v. Foerster, 65 M.J. 120 (C.A.A.F. 2007). The opposition was filed yesterday.

You can't spell CCA without A-C-C

Still can't see the Foerster

The Solicitor General's reply to the cert petition seeking review of United States v. Foerster, 65 M.J. 120 (C.A.A.F. 2007), was due today. It's not up on the SG's web site yet. I'll keep checking and post a link when it hits the web.

A civilian analog to Article 66 review

Military justice practitioners are fond of saying that the Courts of Criminal Appeals' Article 66 review is unique. I, myself, made this mistake in a recent publication. Colonel Dwight H. Sullivan, Killing Time: Two Decades of Military Capital Litigation, 189 Mil. L. Rev. 1, 22 (2006) ("the intermediate military appellate courts' factual sufficiency review is probably unique") (citing United States v. McAllister, 55 M.J. 270, 277 (2001) ("The Courts of Criminal Appeals are unique in that they are charged with 'the duty of determining not only the legal sufficiency of the evidence but also its factual sufficiency.' United States v. Turner, 25 M.J. 324 (C.M.A. 1987).")). But to quote Harry S Truman, "There is nothing new in the world except the history you do not know" -- or, in my case, case law and a statute that I didn't know.

Watson v. State, 204 S.W.3d 404 (Tex. Ct. Crim. App. 2006), is an unusually fascinating opinion concerning factual sufficiency review by Texas appellate courts. The majority tells us that "criminal appellate courts in Texas have always had factual review jurisdiction, conferred by both the Texas Constitution and by Article 44.25 and its predecessors." Id. at 409. The majority goes on, however, to adopt a quite limited scope for such factual sufficiency review that is marginally more searching than Jackson v. Virginia, 443 U.S. 307 (1979), but far less muscular than Article 66 review.

In her dissent, Judge Cochran tells us:

I am aware of only two other jurisdictions, New York and the United States military courts, that currently employ a factual-sufficiency review. In each of those jurisdictions, a statute explicitly authorizes such a review.[n.161] There is no such statute in Texas.

[n.161] NY CLS CPL § 470.15(5); see People v. Bleakley, 69 N.Y.2d 490, 492 N.E.2d 672, 673, 515 N.Y.S. 2d 761 (Ct. App. 1987) (court of appeals erred in failing to conduct statutorily required factual-sufficiency review when defendant claimed evidence was insufficient); 10 U.S.C.S. § 866 (c) ("the [Military] Court of Criminal Appeals may act only with respect to the findings and sentence as approved by the convening authority. . .as it finds correct in law and facts . . . . In considering the record, it may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses").

Watson, 204 S.W.2d at 426 (Cochran, J., dissenting).

The New York statute that Judge Cochran cited sets out the scope of review for New York's intermediate appellate courts. It provides: "The kinds of determinations of reversal or modification deemed to be on the facts include, but are not limited to, a determination that a verdict of conviction resulting in a judgment was, in whole or in part, against the weight of the evidence." NY CLS CPL 470.15[5]. Interestingly, the same statute also gives New York's intermediate appellate courts the authority to reverse or modify a sentence that "though legal, was unduly harsh or severe." Id. at § 470.15[6].

These citations suggest that there is an entire body of state case law construing a civilian counterpart to Article 66 that can be mined by military appellate practitioners. Yet I can find only one military appellate decision that turns to New York case law discussing § 470.15, and it does so in a sentence appropriateness context. United States v. Silvernail, 1 M.J. 945, 957 (N.C.M.R. 1976). Given that the Silvernail decision endorsed the use of New York case law in interpreting Article 66, I wonder why that approach hasn't caught on. Here's what the Navy Court said in Silvernail:

In People v. Zuckerman, 5 N.Y. 2d 401, 185 N.Y.S. 2d 8, 157 N.E. 2d 862 (1959), the New York Court of Appeals construed § 543 of the New York Code of Criminal Procedure, which provided in part that an appellate court might "reduce the sentence imposed." The Court of Appeals held that "[u]nder the broad powers of the Appellate Division to reduce sentences is included the power to hold, in a proper case, that sentence or the execution of sentence should be suspended." 5 N.Y. 2d at 403-404, 185 N.Y.S. 2d at 10, 157 N.E. 2d at 863. The present New York statute, § 470.15 of the Criminal Procedure Law, which permits the appellate court to "modify the criminal court judgment, sentence or order", has also been interpreted as implying a power to suspend the sentence. See, e.g., People v. Telech, 47 A.D. 2d 997, 366 N.Y.S. 2d 750 (4th Dept. 1975); People v. Bonomo, 47 A.D. 2d 862, 366 N.Y.S. 2d 42 (2nd Dept. 1975). The New York court's interpretations of statutes similar to Article 66(c) of the Code seem both apposite and persuasive.

Id.

Duty, Duty, Duty

I just saw my first Jury Duty stamp, which the post office website states was released two months ago. It depicts 12 profiles of heads in various colors all facing to the right, with the words "JURY DUTY Serve with Pride."

Maybe the post office should also release one to honor duty as a court-martial panel member - show only 5 profiles, make it postcard rate (to reflect the fewer numbers), and use it as a PSA to avoid that sleeping panel member issue by stating on the stamp "PANEL DUTY Serve Alert." But no need to change the direction of the heads.

MCM hijinks

Judge Cox once wrote, "I know that young judge advocate officers love witty exchanges, practical jokes, and a sense of the macabre in their humor." United States v. Smith, 27 M.J. 242, 252 (C.M.A. 1988) (Cox, J., concurring). It looks like one of those practical jokes made it into the Manual for Courts-Martial, as my treasured colleague Capt Tim the Enchanter Cox showed me today.

Grab your trusty MCM. Now look up "Jet" in the index. There it is, on page 34 of the index. What does it say? "See Plane." Okay, "Plane" is on page 45 of the index. What does it say? "See Aircraft." There's "Aircraft" on page 3. What does it say? "See Jet." And the cycle begins anew. And in case there is any doubt that someone inserted this as a joke, the only two mentions of "Jet" in the entire MCM are in those two index cross-references.

But wait, there's more -- though whoever the practical joker who inserted this was didn't do as good a job this time. Look up "Boat." There it is on page 7. But there's an oddity -- there are two separate listings for "Boat." One is the entryway into another gag; the other is a legitimate cross-reference. The first reads, "See Ship." The second reads, "See Vessel." Let's start with the top one, shall we? "Ship" is on page 59. Once again it has two entries. The first reads, "See Carrier." The second reads, "See Vessel." If we do, indeed, see "Carrier," it will close the circuit by referring us to "Boat." But if we go to vessel, we will see actual references to the offenses of hazarding a vessel and jumping from a vessel. It's not nearly as clever when you have to post shadow entries to make it work.

We traced the origin of this bit of tom foolery to the 1995 edition of the MCM. The speculation in the Carpenter Building was that some Army working group member snuck it in to goof on the Air Force and the Navy. Does anyone know who the culprit is?

Capital writ appeal

On 14 November, CAAF docketed a writ appeal in the capital case of Martinez v. Henley, __ M.J. ___, Misc. No. 08-8002/AR (C.A.A.F. Nov. 14, 2007). (The docketing order indicated that the writ appeal had been filed on 5 November.) I can't find ACCA's opinion or order in the case.

On 15 November, CAAF extended GAD's reply time to 30 November.

I understand that the writ appeal presents four issues: (1) whether the accused is entitled to a new Article 32 investigation due to a denial of a defense continuance request (the military judge apparently reopened a portion of the 32, but the defense is arguing for the whole enchilada); (2) whether it was impermissible for a federal prosecutor to serve as the Article 32 investigating officer; (3) whether the CA improperly considered a "time of war" aggravating factor; and (4) whether the accused is entitled to specially qualified counsel in a death penalty case.

If any Army lurkers have corrections to that account, please let me know. This sounds like an extremely interesting bit of litigation.

Another addendum sjar non-service grant

CAAF granted review today in United States v. Jones, __ M.J. ___, No. 07-0738/AF (C.A.A.F. Nov. 26, 2007), on the following issue: "WHETHER THE ADDENDUM TO THE STAFF JUDGE ADVOCATE'S RECOMMENDATION CONTAINS 'NEW MATTER' NOT PROVIDED TO DEFENSE COUNSEL FOR COMMENT, NECESSITATING A NEW CONVENING AUTHORITY ACTION IN THIS CASE." But CAAF directed that no briefs be filed.

The Air Force Court's unpublished opinion decision gives this account of the facts giving rise to the issue:

In response [to the SJAR], the appellant submitted a clemency package which, in addition to numerous other attachments, included letters from the appellant and his trial defense counsel. In these letters, the appellant and his counsel asked the convening authority to disapprove the bad-conduct discharge or in the alternative, set aside the guilty finding for Charge III, Specification 3. The reason for the request was based upon the following: the victim was the aggressor; the appellant had been
rehabilitated in confinement; and the statements made by the military judge on the record. The clemency petition from the trial defense counsel referenced a statement made by the military judge, in which the military judge indicated the sentence in this case had been a very difficult decision for him to make. . . .

The addendum to the SJAR addressed the defense request for clemency. . . . In the fourth paragraph of the addendum, the SJA made the following statement:

I recommend against granting [the appellant's] clemency request. A punitive discharge is appropriate for the offense [sic] for which the accused was convicted. The offenses involved sexual acts with a minor. Despite [the appellant's] characterization of the victim as the aggressor, he was the adult in this relationship. The judge considered the defense evidence and decided a bad conduct discharge is appropriate in this case, and I concur. . . .

United States v. Jones, ACM S31078 (A.F. Ct. Crim. App. May 30, 2007) (footnotes omitted).

The Air Force Court concluded that the Addendum SJAR didn't contain new matter and that even if it did, the result would have been the same even if it had been served on the accused.

But wouldn't it really have been a lot better for the Air Force had the SJA simply served the Addendum SJAR on the defense and provided an opportunity to respond if the defense so desired?

Does the SCRA tolling provision apply during periods of confinement resulting from a court-martial conviction?

On 15 November, Judge Block of the United States Court of Federal Claims rendered a mixed decision on a pro se collateral challenge to a court-martial conviction. Lowe v. United States, No. 06-121C, 2007 U.S. Claims LEXIS 363 (Ct. Fed. Cl. Nov. 15, 2007). (The case produced a published opinion dealing with ineffective assistance of post-trial counsel from the Navy-Marine Corps Court on direct review. United States v. Lowe, 50 M.J. 654 (N-M. Ct. Crim. App. 1999)).

Here's the most interesting question that the case presents: can a servicemember confined as the result of a court-martial conviction whose punitive discharge has not yet been executed invoke the tolling provisions of the Service members' Civil Relief Act (SCRA) to file a Tucker Act action collaterally challenging beyond the six-year statute of limitations? Yes, rules Judge Block.

Judge Block frames the decisional issue as whether confinement pursuant to a court-martial conviction is "military service." If so, then the SCRA tolls the Tucker Act's statute of limitations until the court-martial convict is actually discharge.

Judge Block concludes that service of confinement in a military facility as the result of a court-martial conviction is military service, reasoning:

[P]laintiff was not absent during the period of his military confinement but instead was present, in military custody, at the bases to which he was assigned by the Marine Corps. Furthermore, . . . plaintiff remained on active duty during his military confinement because he had neither received his final pay nor was his DD Form 214 "ready for delivery." One can hardly consider plaintiff's confinement as not being "service connected" 00 which this Court believes is the test for "active duty." Simply put, plaintiff was convicted and incarcerated for violations of the UCMJ relating to his actions while he served on active duty. For this Court to accept defendant's argument would be to denigrate the crucial role that law and regulation play in military discipline. Further, there exists a constitutional component to the Court's position. Failing to recognize that a service member is on active duty, even when incarcerated in the "brig" for violations of military law, until officially separated or discharged, ignores the near-plenary power that the Constitution delegates to Congress "to make Rules for the Government and the Regulation of the land and naval forces . . . ." U.S. Const., art. I, § 8, cl. 14. The Constitution clearly envisioned the promulgation of a special system of military justice, and this system has indeed become an essential part of the American military. See O'Callahan, 395 U.S. at 262-62. It can hardly be said that those service members subject to that system -- even when tried, convicted, and incarcerated under military law -- are not engaging in activities that are "service connected."

Lowe v. United States, No. 06-121C, slip op. at 11 (some internal citations omitted).

What do you think? Did Judge Block get it right?

Beware the Navy JAG Corps web site's reading room

In updating the military justice research links on this page today, I came across something disturbing. I have previously noted that the Navy JAG web site's reading room includes the 2000 edition of the Manual for Courts-Martial and the 2000 edition of the UCMJ. That's bad enough, but at least almost everyone tempted to access the MCM will know that's not the current edition. Not so with the Reading Room's link to the JAGMAN. Wouldn't you think that the Navy JAG Corps' own web site would include the most current version of the JAGMAN which is, after all, issued by the Judge Advocate General of the Navy? I did. But I was wrong. Go to the Navy JAG Corps web site's home page here. Now click on Reading Room, which will take you here. Now click on the top link, which is called "Navy JAG Instructions and COMNAVLEGSVCOM Instructions." Scroll down to "JAG 5800.7D" which is the JAGMAN (or, to be more precise, which was the JAGMAN). What's the date? 15 March 2004. Why, of why, isn't the current version -- JAGINST 5800.7E dated 20 June 2007 -- on the Navy JAG Corps' own web site?

It seems apparent from the comments on this blog that most of the active readers are naval judge advocates. Could one of you seize the initiative to get the Navy JAG Corps' web site updated before some poor counsel or judge gets a case reversed for relying on an outdated regulation?

Just call me Sir Links-a-lot

I have updated the military justice research links on the right side of this page with links to a number of web sites or particular documents that I often use when writing briefs. (I'll admit my motives were partly selfish -- now I can simply access those sites via the CAAFlog home page.)

I encourage you not only to use those links, but also to post a comment here letting us know of other links you often use in military justice research.

Shakespearian anagrams

WARNING: This post is not about a military justice topic.

I was fortunate to have had a fabulous Advanced Con Law professor -- John Jeffries, who is now finishing up his tenure as dean of UVA Law. I distinctly remember so many of the discussions in his classroom more than 20 years ago. And it was he who introduced me to John Hart Ely's Democracy and Distrust, which influenced my view of constitutional law more than any other jurisprudential book I have read.

One of the things I expressly remember reading for that class was Justice Harlan's dissent in Wesberry v. Sanders, 376 U.S. 1 (1964), the case that essentially applied Baker v. Carr, 369 U.S. 186 (1962), to federal congressional districts. It did so largely on the basis of Article I, section 2's provision that "[t]he House of Representatives shall be composed of Members chosen every second Year by the People of the several states." Justice Harlan objected in dissent, "Although many, perhaps most, of [the delegates to the constitutional convention] believed generally -- but assuredly not in the precise, formalistic way of the majority of the Court -- that within the States representation should be based on population, they did not surreptitiously slip their belief into the Constitution in the phrase 'by the People,' to be discovered 175 years later like a Shakespearian anagram." Wesberry, 376 U.S. at 27 (Harlan, J., dissenting).

While the phrase stuck with me, I never appreciated its true meaning until I recently read Bill Bryson's new biography of Shakespeare. Bryson devotes the final chapter of the book to considering who wrote Shakespeare's works. He concludes emphatically that Shakespeare's works were by -- of all people -- Shakespeare. Bryson also attempts to debunk the arguments put forward by others that Shakespeare's works were actually written by Francis Bacon or the Edward de Vere, Earl of Oxford or Christopher Marlowe or many others other than the Bard of Avon. His synopsis of Bacon supporters' arguments includes a description of a supposed Shakespearian anagram:

Sir Edwin Durning-Lawrence, . . . in [his] popular book, Bacon Is Shakespeare, published in 1910, found telling anagrams sprinkled throughout the plays. Most famously he saw that a nonce word used in Love's Labour's Lost, "honorificabilitudinitatiubus," could be transformed into the Latin hexameter "Hi ludi F. Baconis nati tuiti orbi," or "These plays, F. Bacon's offspring, are preserved for the world."

Bill Bryson, Shakespeare: The World As Stage 186-87 (2007).

I didn't realize until reading that passage that Harlan apparently was referring to anagrams that purported to rebut Shakespeare's authorship of his own works. His analogy becomes even more deliciously biting in light of that provenance.

Get the lead out of military justice

On Sunday, the Washington Post and 60 Minutes ran important stories dealing with scientific quackery about lead composition analysis that FBI lab analysis peddled for years. See here and here and here.

Today's Post contains a follow-up by John Solomon about the Senate Judiciary Committee's response to the Post's earlier reporting. The article's lead reads: "The chairman of the Senate Judiciary Committee yesterday demanded that the Justice Department turn over to Congress all cases involving the FBI lab's use of a now-discredited bullet-matching forensic test and criticized the department for failing to alert defendants whose convictions were affected by the flawed science." The article also stated, "In response to the reports, the FBI has announced it will review all bullet-lead testimonies that led to convictions and alert prosecutors to any misleading statements so that defendants can be notified. Separately, two umbrella groups for criminal-defense lawyers are launching their own effort to help people who might have been convicted using the science."

One case where the now-discredited FBI lead composition analysis was used is familiar to military justice practitioners: United States v. LCpl Wade Walker, No. 9501607 (N-M. Ct. Crim. App. redocketed Aug. 10, 1995). LCpl Walker, of course, currently resides on death row and the United States Disciplinary Barracks.

I haven't read the complete record of trial in United States v. Parker, but I suspect similar quackery was presented in that case. Can one of his counsel let us know?

[Disclaimer: I was an appellate defense counsel in the Walker case.]

Another interesting but enigmatic daily journal entry

Monday's daily journal includes an interlocutory order in United States v. Harris, __ M.J. ___, No. 07-0385/NA (C.A.A.F. Nov. 19, 2007).

United States v. Harris, 65 M.J. 594 (N-M. Ct. Crim. App. 2007), is a weird opinion in a weird case that we previously discussed here.

The primary issue below was whether civilian police officer coerced a civilian witness into recanting a statement that was favorable to the accused. The case also raised a Confrontation Clause challenge to admitting a drug lab report and a post-trial delay claim. Petty Officer Harris now has a petition pending before CAAF which has generated some interesting appellate discovery.

On 25 September, CAAF issue the following order in the case:

On consideration of Appellant's motion to attach documents from the record to Appellant's supplement to the petition for grant of review and motion to compel documents to support Appellant's supplement to the petition for grant of review, it is, ordered that Appellant's motion to attach documents is granted, and Appellant's motion to compel documents is granted. Appellee will file these documents with the Court under seal, along with any proposed protective order that Appellee considers appropriate for the Court to consider prior to releasing these documents to Appellant.

United States v. Harris, __ M.J. ___, No. 07-0385/NA (C.A.A.F. Sept. 25, 2007). Interesting enough, but on Monday it became even more intriguing:

On consideration of Appellee's Response to the Court Order of September 25, 2007, and Appellant's Reply, it is ordered that the entire file of the Administrative Law Division of Judge Advocate General of the Navy, submitted under seal by Appellee on October 4, 2007, will be maintained under seal in the Office of the Clerk of the Court. Appellant and his appellate defense counsel may examine this file at the Clerk's office and may take notes, but may not reproduce any of the documents or disseminate the information contained therein.

United States v. Harris, __ M.J. ___, No. 07-0385/NA (C.A.A.F. Nov. 19, 2007).

It's not apparent to me what the topic of the appellate discovery is, though my guess is it has to do with reports of misconduct at one or more Navy drug labs. Can one of our naval readers fill us in on what's going on?

20 minutes of fame

CAAF sent out some oral argument notices this week. Some of the newly scheduled arguments allot each party 20 minutes. Call me a hidebound traditionalist, but I like giving each side 30 minutes a piece and trusting counsel to sit down if they finish early.

Maybe Army GAD can represent the mid-Atlantic states, Navy-Marine Corps Code 46 gets New England and Air Force JAJG gets the South (Revised)

We have previously looked at CAAF's consideration of its jurisdiction to review CCAs' resolution of Article 62 appeals. (Links to the audio file links for the Lopez de Victoria and Michael oral arguments are now on CAAF's web site here.)

In both Lopez de Victoria and Michael, the government prevailed before the CCA and the accused petitioned CAAF for review. On the other hand, in two Air Force cases -- Miller and Webb -- the accused won Article 62 appeals at the Air Force Court and the Judge Advocate General certified to CAAF. Last Friday, the defense moved to dismiss in both Miller and Webb. The motions argued that CAAF had no jurisdiction to act in those cases -- and noted that the defense position was the same as that advanced by the government in both Lopez de Victoria and Michael. In both Lopez de Victoria and Michael, appellate government counsel expressly wrote that they were taking their positions on behalf of the "United States." And the Air Force Appellate Government Division filed an amicus brief arguing the opposite position of their Army GAD and Navy-Marine Corps Code 46 brethren.

Today the Air Force Appellate Government Division filed an opposition to the motions to dismiss in Miller and Webb, indicating that "the United States hereby enters its Opposition" to the motions to dismiss. The Air Force Appellate Government Division also wrote that "the United States stands on the Amicus Curiae brief previously submitted to this Court in Lopez de Victoria and Michael." How can "the United States" simultaneously advance diametrically opposed positions in four different cases pending before the same court at the same time? I thought the Civil War pretty much determined that the United States is one entity. Forget about all that litigation over "under God" in the Pledge of Allegiance. Let's focus instead on the Pledge's next word: "indivisible." How can the same indivisible entity take inconsistent positions because its interests dictate different results in different caes? Well, it can't. The judicial estoppel doctrine generally "precludes a party from asserting a position in one legal proceeding which is contrary to a position it has already asserted in another." Patriot Cinemas v. General Cinema Corp., 834 F.2d 208, 211 (1st Cir. 1987).

Perhaps in an invocation of international law's tu quoque defense, Air Force Appellate Government writes:

Additionally, the United States would like this Court to note that one of Appellee's counsel of record in the case sub judice, also represented the Appellant in United States v. Cossio, No. 06-6005/AF, an appeal under Article 62, in which Appellant states that "[t]his Court has jurisdiction to review this case pursuant to Article 67, UCMJ."

That argument wins points for style (other than its use of the clunker "sub judice" and the erroneous comma that follows it). But there is no reason why two appellants who both happen to be represented by Air Force Appellate Defense should have identical litigation interests. The arguments that counsel for Miller and Webb advance before CAAF are Miller's and Webb's arguments, not their own. Senior Airman Miller can't be estopped from making an argument because his lawyer took an inconsistent position in a previous case. But on the other side of the house, THE SAME PARTY -- the United States -- is simultaneously advancing inconsistent arguments. Judicial estoppel does not apply where one counsel advances inconsistent arguments for two different clients. Judicial estoppel may apply where two different counsel advance inconsistent arguments for one client.

Courts are generally reluctant to apply judicial estoppel in criminal cases. And even if the defense and the government agreed as to the right outcome of a proceeding, the courts are free to reach a contrary conclusion. But simultaneously arguing that CAAF does have jurisdiction where it is the United States seeking to review an adverse ruling from a lower court and that it doesn't have jurisdiction where the United States is seeking to block review of a favorable ruling from a lower court offends the very principles that provide the basis for judicial estoppel. Regardless of how CAAF decides the jurisdictional issues in the four pending cases, it should make clear that the United States is one entity that must speak with one voice.

ADDENDUM: I was just cleaning up to get ready for family coming over for Thanksgiving. And I came across the Spring 2003 issue of the National Military Justice Group Journal. (Whatever happened to the NMJG Journal? I always enjoyed reading it.) That issue included an article on trial tactics by COL Keith Hodges, JA, USA (Ret.). Here's an excerpt:

15. At trial, what do the parties call themselves?

Look at the charge sheet. It is United States v. Private Michael Jones.

The TC should always refer to her side as "The United States." Wrap yourself in the flag. The Army is a green machine. The government or, God forbid, the US Government, is a large amorphous bureaucracy. The "United States" sounds like "We the people."

But there's a cost to being "The United States." And that is you represent the same "United States" that trial counsel and appellate government counsel from other services represent. If a trial counsel or government counsel is channeling "The United States" in the case of United States v. Corporal Jones, then the message must be the same in the cases of United States v. Machinist's Mate Third Class Jones or United States v. Senior Airman Jones. Egad -- I seem to be becoming more and more purple the longer I think about it.

Three more summary decisions from C Double A F

I'll do some more blogging during halftime. CAAF summarily affirmed without comment on Friday in United States v. Wilson, __ M.J. ___, No. 07-0475/NA (C.A.A.F. Nov. 16, 2007) (summary disposition), and United States v. Matospacheco, __ M.J. ___, No. 07-0598/NA (C.A.A.F. Nov. 16, 2007) (summary disposition). Matospacheco was a case returning to CAAF following a previous grant and remand. See United States v. Matospacheco, 61 M.J. 155 (C.A.A.F. 2005) (summary disposition). Wilson was a case in which the accused was sentenced to confinement for life, though the convening authority -- in an act of gratuitous clemency -- suspended confinement in excess of 40 years. CAAF apparently chose to open the door to the Supremes for Petty Officer Wilson.

Along with the three summary affirmances in Coleman, Wilson, and Matospacheco came a summary reversal in United States v. Evans, __ M.J. ___, No. 07-0476/NA (C.A.A.F. Nov. 16, 2007) (summary disposition). Evans is yet another opinion that appears to be available only on NKO. United States v. Evans, No. NMCCA 200600806 (N-M. Ct. Crim. App. March 29, 2007). Dentalman Evans was found guilty of offenses including premeditated murder and was sentenced to LWOP, but apparently pursuant to a pretrial agreement, the "without eligibility for parole" portion of the sentence was suspended until Evans' discharge from the Navy.

Before the Navy-Marine Corps Court, the defense raised nine issues, all relating to a provision in the pretrial agreement that waived Evans' right to be considered for clemency or parole for forty years. NMCCA set aside that provision pursuant to United States v. Tate, 64 M.J. 269 (C.A.A.F. 2007), but otherwise approved the findings and sentence.

After the Navy-Marine Corps Court ruled, however, the suspension of the "without eligibility for parole" portion of Evans' sentence was vacated. That led CAAF to grant Evans' petition, set aside NMCCA's decision, and remand the case to NMCCA for consideration of these three issues:

I. WHETHER A PROVISION OF APPELLANT’S PRETRIAL AGREEMENT THAT AUTHORIZES THE CONVENING AUTHORITY TO SUSPEND A PORTION OF HIS SENTENCE UNTIL HE IS “DISCHARGED FROM THE U.S. NAVY” IS FOR AN UNREASONABLE AMOUNT OF TIME WITHIN THE MEANING OF R.C.M. 1108(d) AND SHOULD BE VOID FOR INDEFINITENESS.

II. WHETHER APPELLANT’S SUSPENDED SENTENCE WAS IMPROPERLY VACATED BECAUSE HIS ALLEGED MISCONDUCT WAS NOT A MATERIAL BREACH OF THE PRETRIAL AGREEMENT.

III. WHETHER APPELLANT’S SUSPENDED SENTENCE WAS IMPROPERLY VACATED BECAUSE THE R.C.M. 1109 VACATION HEARING WAS NOT HELD WITHIN A REASONABLE AMOUNT OF TIME.

Would they have held a seance if the author judge had died?

On Friday, CAAF summarily affirmed three decisions of the Navy-Marine Corps Court. The first was United States v. Coleman, __ M.J. ___, No. 06-0532/NA (C.A.A.F. Nov. 16, 2007) (summary disposition). Airman Apprentice Coleman was sentenced to LWOP in 1999. In February 2006, NMCCA granted partial relief on the findings but otherwise affirmed the sentence. United States v. Coleman, No. NMCCA 200101009 (N-M. Ct. Crim. App. Feb. 10, 2006). In January 2007, CAAF granted Coleman's petition and summarily reversed NMCCA's decision due to an ambiguity in its holding. United States v. Coleman, 64 M.J. 402 (C.A.A.F. 2007) (summary disposition). Then in March 2007, in an unpublished per curiam opinion that appears to be available only on NKO, NMCCA resolved that ambiguity. United States v. Coleman, No. NMCCA 200101009 (N-M. Ct. Crim. App. March 29, 2007) (per curiam). That decision is jurisprudentially interesting. NMCCA explained:

In an Order dated 31 January 2007, the Court of Appeals for the Armed Forces set aside our decision, stating that "[b]ecause two specifications under two charges remain (premeditated murder under Charge I and robbery under Charge II), it is unclear what findings were approved by the Court of Criminal Appeals." The record was then returned to the Judge Advocate General for remand to this court "for clarification as to the affirmed findings." The record of trial was returned to this court on 12 February 2007.

Since all the judges who participated in this panel's original decision of 10 February 2006 have since left active duty, the current senior judge of Panel One of this court contacted the author of the original decision for clarification as to the affirmed findings. The author of the original opinion, Brigadier General Charles Wm. Dorman, confirmed that the court’s original intent was to set aside only the felony murder specification, and to affirm the remaining charges and specifications; that is, Charge I and its sole remaining specification, a violation of Article 118, UCMJ, and Charge II and its sole specification, a violation of Article 122, UCMJ.

Therefore, for the reasons stated in our decision dated 10 February 2006, which we hereby adopt, we set aside and dismiss Specification 2 of Charge I; affirm the findings of guilty of Charge I and Specification 1 thereunder, and Charge II and its sole specification; and affirm the sentence as approved by the convening authority.

Id., slip op. at 2.

That jurisprudential approach gives me pause, but on Friday CAAF affirmed that decision without addressing whether it is appropriate for a court to consult with a retired member to discern the meaning of an earlier judicial opinion -- a matter to now be raised by a cert petition, perhaps. CAAF instead addressed whether Coleman's due process rights were violated by post-trial and appellate delay. The court concluded that even if such a violation did occur, any such error "was harmless beyond a reasonable doubt" and affirmed. United States v. Coleman, __ M.J. ___, No. 06-0532/NA (C.A.A.F. Nov. 16, 2007) (summary disposition).

Another CAAFlog contest

No one won the last CAAFlog contest -- which called for contestants to find a public web site on which the latest issue of the Naval Law Review is accessible. (By the way, it still isn't on the Naval Justice School's web site or in the Navy JAG web site's reading room. Nor is it available on LEXIS. Thank goodness we don't have to worry about the Naval Law Review falling into the hands of the Russians.)

Since no one won that contest, I'll recycle its prize: either a CAAFlog t-shirt or Justice Scalia's A Matter of Interpretation: Federal Courts and the Law. The contest is our recurring "When will CAAF's first opinion of the term be released?" pool. (I guess a pool also fits into tonight's NCAA/C Double A F leitmotif.)

I'll get the bidding going by picking the date on which CAAF issued its first opinion last year: 27 November 2007. You may enter by adding a comment to this post with your prediction not later than 2359 on Friday, 23 November or when the first CAAF decision comes out, whichever comes first. In case of a tie (say if the date of the opinion is equidistant from the two closest predictions), whichever prediction was posted first wins.

Is it a conflict for an accused to be represented by a part-time DC/part-time TC?

CAAF granted review of another interesting issue today: "WHETHER CAPT [R]'S FAILURE TO DISCLOSE HIS CONFLICT OF INTEREST RESULTED IN AN UNINFORMED AND INVALID ELECTION OF COUNSEL." United States v. Lee, __ M.J. ___, No. 07-0725/MC (C.A.A.F. Nov. 20, 2007). Captain Lee's appellate defense counsel who obtained the grant is Eugene Fidell the Sagacious.

The Navy-Marine Corps Court's unpublished opinion, which is quite interesting, is here. United States v. Lee, NMCCA 200600543 (N-M. Ct. Crim. App. June 26, 2007). Here is the opinion's discussion of the conflict issue:

Conflict of Interest of Trial Defense Counsel

The appellant contends that his military trial defense counsel failed to disclose a conflict of interest in acting as a prosecutor in another case at the time of the appellant's trial. He urges us to set aside the findings and sentence on the basis that this situation resulted in an invalid election of counsel by the appellant. We disagree and decline to grant the requested relief.

Facts

The appellant contends that his military trial defense counsel, Capt Reh, failed to disclose that while the appellant's trial was in progress, he was also serving as assistant trial counsel in a prosecution for which the lead prosecutor was the trial counsel in the appellant's case, Maj Keane. The appellant claims that the two counsel worked together as prosecutors in an Article 32, UCMJ, proceeding the week before the appellant's trial. The appellant alleges that he did not learn of this situation until after his court-marital proceedings were completed. The appellant concedes that Capt Reh informed him in February 2005 that Capt Reh would be prosecuting minor offenses involving drugs and unauthorized absences as he transitioned off of active duty. The appellant also concedes that, based on this disclosure, he agreed that Capt Reh should continue to represent him. The appellant was also represented by civilian counsel throughout the proceedings.

Law

A military accused is guaranteed the right to effective assistance of counsel under the Sixth Amendment and Article 27, UCMJ. United States v. Fluellen, 40 M.J. 96, 98 (C.M.A. 1994). This right includes the right to counsel free from conflicts of interest. United States v. Carter, 40 M.J. 102, 105 (C.M.A. 1994). To demonstrate a Sixth Amendment violation, the appellant must establish (1) an actual conflict of interest, and (2) that this conflict adversely affected his lawyer's performance. United States v. McClain, 50 M.J. 483, 488 (C.A.A.F. 1999).

Analysis

We find this assignment of error to be without merit. We find no actual conflict of interest in this case. The appellant acknowledges that Capt Reh advised that he would be prosecuting cases at the same time he was representing the appellant. Following this disclosure, the appellant decided that he wanted Capt Reh to continue to represent him, along with civilian counsel. The mere fact that Capt Reh ultimately worked as a trial counsel on a different case with the trial counsel on appellant's case does not by itself create an actual conflict of interest. Moreover, the appellant fails to identify any connection between the fact that Capt Reh and Maj Keane worked together as prosecutors on a completely unrelated case and the representation he received at his court-martial. To the contrary, all evidence in the record indicates that the appellant received excellent representation from his civilian and military trial defense counsel throughout the court-martial process. Additionally, the appellant's civilian counsel was the lead counsel throughout the appellant's trial.

The appellant urges us to apply an "inherent prejudice" standard to his case. Certain cases involving concurrent representation of multiple clients have been treated as inherently prejudicial. See Cuyler v. Sullivan, 446 U.S. 335, 348-49 (1980). Also, in United States v. Cain, 59 M.J. 285, 295 (C.A.A.F. 2004), our superior court found that the situation in that case was inherently prejudicial because it involved "an attorney's abuse of a military office, a violation of the duty of loyalty, fraternization, and repeated commission of the same criminal offense for which the attorney's client was on trial," all of which was left unexplained as a result of defense counsel's suicide. Cain advised, however, that "most cases will require specifically tailored analyses in which the appellant must demonstrate both the deficiency and prejudice under the standards set by Strickland." 59 M.J. at 294. We find that the application of an inherent prejudice standard to this case is clearly not warranted under existing case law. United States v. Nicholson, 15 M.J. 436, 438 (C.M.A. 1983); United States v. Hubbard, 43 C.M.R. 322, 325 (C.M.A. 1971); see Cain, 59 M.J. at 294.

Conclusion

Because the appellant has failed to establish the existence of any actual conflict of interest and failed to show that the alleged conflict adversely affected his military trial defense counsel's performance, we find no merit in this assignment of error.

Another big news day in the NCAA and the C Double A F

You would think things would be slow on Thanksgiving week, but not for military justice aficionados or NCAA basketball teams. (ESPNU? Does anyone's cable system actually carry ESPNU?)

First, we have a new CAAF grant to report. Also, today's daily journal update included a few summary dispositions, one of which is worthy of comment. And the Air Force Appellate Government Division made quite an interesting filing at CAAF today.

An SJA's handling of clemency matters

The granted issue in United States v. Travis, __ M.J. ___, No. 07-0482/MC (C.A.A.F. Nov. 16, 2007), is:

WHETHER THE COURT OF CRIMINAL APPEALS ERRED BY FINDING THAT APPELLANT WAS NOT PREJUDICED BY THE FAILURE OF THE STAFF JUDGE ADVOCATE TO FORWARD CLEMENCY MATTERS SUBMITTED BY APPELLANT TO THE CONVENING AUTHORITY PRIOR TO TAKING INITIAL ACTION AND BY FINDING THAT APPELLANT WAS NOT PREJUDICED WHEN THE STAFF JUDGE ADVOCATE HELD ONTO THE CLEMENCY MATTERS FOR OVER A YEAR BEFORE FORWARDING MATTERS TO THE CONVENING AUTHORITY.

The Navy-Marine Corps Court's unpublished opinion, which discusses this fact-intensive issue, is available here. United States v. Travis, No. NMCCA 200600519 (Feb. 27, 2007).

Challenge to former military judge serving as SJA

Here's one you don't see every day. The issue in United States v. Moorefield, __ M.J. ___, No. 07-0503/MC (C.A.A.F. Nov. 16, 2007), is: "WHETHER THE STAFF JUDGE ADVOCATE WAS REQUIRED TO RECUSE HIMSELF FROM INVOLVEMENT IN APPELLANT'S CASE ON THE BASIS OF JAGINST 5803.B, RULE 1.12, OR OTHER LAW, REGULATION OR DIRECTIVE. IF SO, WHETHER APPELLANT WAS PREJUDICED BY THE STAFF JUDGE ADVOCATE'S FAILURE TO DO SO." (JAGINST 5803.1C is the Department of the Navy's Rules of Professional Conduct regulation; I assume that's what the granted issue has in mind.)

Rule 1.12(a) provides: "Execept as stated in subparagraph c below [which deals with arbitrators], a covered USG attorney shall not represent anyone in connection with a matter in which the covered USG attorney participated personally and substantially as a judge or other adjudicative officer, arbitrator, or law clerk to such a person, unless all parties to the proceeding consent after disclosure."

While neither the Navy-Marine Corps Court's web site nor LEXIS includes the unpublished per curiam opinion in Moorefield, it is available on NKO. United States v. Moorefield, No. NMCCA 200600162 (N-M. Ct. Crim. App. Dec. 19, 2006) (per curiam). And its absence from public web sites is a shame, because it's quite interesting. Here's the lower court's treatment of an issue closely related to that which CAAF has now granted:

Military Judge as Staff Judge Advocate

The staff judge advocate in the appellant's present case, Colonel (Col) R. Kohlmann, USMC, presided five years earlier, as the military judge over a special court-martial of the appellant in which the appellant had been acquitted of all charges. The appellant now claims for the first time on appeal that Col. Kohlmann's participation as staff judge advocate in the present case is in contravention of RULE FOR COURTS-MARTIAL 1106(b), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2005 ed.), which states "[n]o person who has acted as . . . military judge . . . may later act as a staff judge advocate . . . to any reviewing authority in the same case." The appellant also claims that Col Kohlmann's participation was in contravention of 28 U.S.C. 21 § 455 (Disqualification of justice, judge, or magistrate judge) which requires disqualification of a federal judge where he has personal knowledge of disputed evidentiary facts concerning the proceeding. We disagree. The appellant presents no evidence that the previous court-martial which resulted in acquittal is the same case that he is now appealing. Further, the appellant provides no authority for his implied proposition that federal regulations pertaining to the conduct of federal judges apply to staff judge advocates. Finally, it is abundantly clear from a plain reading of R.C.M 1106(b) that the Rule fully anticipates that military judges will later serve as staff judge advocates, and further informs us that they are only prohibited from doing so in cases where they actually served as the military judge. This assignment of error is wholly without merit.[n1]

[n1] We note with displeasure the following unsupported claim in the appellant's brief and assignments of error. "[The military judge] studied the Appellant's history . . . in non-public court-martial sessions. . .". Appellant’s Brief at 2. Such an outrageous claim by an appellate defense attorney simply must be supported in fact or it will be deemed frivolous, as it has been here.

CAAF to review two member challenge cases

On Friday, CAAF granted review of two members challenge cases. But I have no idea what either one of them is about.

Here's the granted issue in United States v. Bragg, __ M.J. ___, No. 07-0382/MC (C.A.A.F. Nov. 16, 2007): "WHETHER THE LOWER COURT ERRED IN UPHOLDING THE MILITARY JUDGE'S DENIAL OF THE CHALLENGE FOR CAUSE OF LIEUTENANT COLONEL [W.]." I have no idea why the defense thinks LtCol Wood should have been bounced or why Judge Chester thought he shouldn't have been. Unfortunately, the Navy-Marine Corps Court's opinion is similarly unenlightening. The Navy-Marine Corps Court's unpublished opinion in Bragg is available here. United States v. Bragg, No. NMCCA 200600228 (N-M. Ct. Crim. App. Feb. 21, 2007). In Bragg, the defense raised eleven assignments of error before the Navy-Marine Corps Court. That court discussed six of them. Issue VII -- "the military judge erred by denying a defense challenge for cause against Lieutenant Colonel (LtCol) Wood" -- didn't make the cut. See id., slip op. at 2 n.1.

Could one of our naval readers please relieve my curiosity by letting us know why the defense thinks LtCol Wood shouldn't have sat as a member?

Now here's the granted issue in United States v. Elfayoumi, __ M.J. ___, No. 07-0346/AR (C.A.A.F. Nov. 16, 2007): "WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE DENIED THE DEFENSE COUNSEL'S CHALLENGE FOR CAUSE AGAINST MAJOR [L.G.], A PANEL MEMBER, FOR IMPLIED BIAS." I can't find ACCA's opinion from Elfayoumi anywhere online. Could one of our Army lurkers let us know what the defense's beef with MAJ L.G. is?

CAAF to resolve service split over sentencing evidence

We previously noted that the Coast Guard Court's holding in United States v. Bridges, 65 M.J. 531 (C.G. Ct. Crim. App. 2007), created a massive service split by expressly rejecting the Army Court's holding in United States v. Henson, 58 M.J. 529 (A. Ct. Crim. App. 2003), and the Navy-Marine Corps Court's holding in United States v. Lowe, 56 M.J. 914 (N-M. Ct. Crim. App. 2002).

CAAF will now resolve the service split over whether the Government may rebut opinion evidence of good character with extrinsic evidence of specific instances of misconduct. The granted issue in Bridges is:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE ADMITTED PROSECUTION EXHIBIT 3 OVER DEFENSE OBJECTION BECAUSE IT WAS EXTRINSIC EVIDENCE OF SPECIFIC ACTS OF MISCONDUCT OFFERED TO REBUT AN OPINION. See United States v. Hallum, 31 M.J. 254 (CMA 1990).

United States v. Bridges, __ M.J. ___, No. 07-0701/CG (C.A.A.F. Nov. 16, 2007).

Six new granted cases

CAAF's daily journal update has only made it through last Thursday. When the Friday update hits, it will reflect six new granted cases. Three of the six are Marine Corps cases. Two are Army cases and the final one is from the Coast Guard.

Two of the granted issues involve member challenge issues. Two of the cases involve staff judge advocates -- one challenging whether the staff judge advocate was disqualified and the other whether the SJA erred by failing to forward clemency materials to the CA. The Coast Guard case involves the admissibility of extrinsic evidence of misconduct.

The Maynard case from the Army is probably the most interesting of the six:

WHETHER THE MILITARY JUDGE COMMITTED PLAIN ERROR IN ALLOWING PANEL MEMBERS TO CONSIDER EVIDENCE OF APPELLANT'S ALLEGED ANTI-AMERICAN AND ANTI-WAR VIEWS AS AGGRAVATION EVIDENCE UNDER R.C.M. 1001(b)(4) TO THE OFFENSE OF ABSENCE WITHOUT LEAVE, THEREBY PREJUDICING APPELLANT'S SUBSTANTIAL RIGHTS.

United States v. Maynard, __ M.J. ___, No. 07-0647/AR (C.A.A.F. Nov. 16, 2007).

More later, NCAA basketball permitting.

New published AFCCA opinion

The Air Force Court's web site appears to be down, but here's a link to a published opinion the court issued last Friday. United States v. Savoy, __ M.J. ___, No. ACM 36670 (A.F. Ct. Crim. App. Nov. 16, 2007).

It isn't readily apparent to me why Savoy is a published opinion. It doesn't seem to make any new law. Perhaps Judge Mathews the Greatest can play the same role that retired NFL quarterbacks play on football broadcasts and provide us with insight about what might have motivated the Air Force Court to publish this opinion.

To me, the opinion presents only two matters worthy of note. First, the Air Force Court seems to be suffering from an identity crisis. The opinion states: "In United States v. Fricke, 53 M.J. 149 (C.A.A.F. 2000), this Court recognized that Article 13, UCMJ, prohibits two things . . . ." Savoy, No. ACM 36670, slip op. at 6. "This Court"? CAAF decided Fricke. Heck, Fricke wasn't even an Air Force case.

Second, as longtime CAAFlog readers know, we have been obsessed with United States v. Adcock, 65 M.J. 18 (C.A.A.F. 2007). In Savoy, the defense argued that A1C Savoy's command had violated SECNAVINST 1640.9C, the Department of the Navy Corrections Manual, by failing to conduct weekly command visits. This presented a potentially interesting issue of whether an Air Force unit was required to obey a Department of the Navy regulation when it chose to confine an Airman in a naval brig. But ultimately the Air Force Court avoided the illegal pretrial confinement issue, finding that the defense had made a tactical judgment to present the illegal confinement conditions to the members in lieu of raising a motion before the military judge. Savoy, No. ACM 36670, slip op. at 6 (citing, inter alia, United States v. Inong, 58 M.J. 460 (C.A.A.F. 2003)).

The Air Force Court also observed: "We specified the issue of how the recent, United States v. Adcock, 65 M.J. 18 (C.A.A.F. 2007) decision affects this assignment of error. Because of our holding, we do not decide that question. However, we note that the government's regulatory violations (failure to visit and lack of a Memorandum of Agreement with the Navy Brig) concern us, especially in light of this appellant's mental health condition." Savoy, No. ACM 36670, slip op. at 8 n.9. Since the Air Force seems to regularly place its pretrial confinees in non-Air Force confinement facilities, there's probably a good chance that some future Airman will be confined in a naval brig without his or her command complying with SECNAVINST 1640.9C. In a case that squarely presents the issue, it will be interesting to see whether the courts require Air Force compliance with the naval reg.

Granted providence inquiry issue

CAAF didn't post a daily journal update today, so there's still no official word on the naval case with the grant from yesterday. But a well-placed naval source suggests that the case was United States v. Inabinette, No. 07—0787/MC. Can anyone confirm or deny that scuttlebutt? Here's the issue presented in Inabinette: "WHETHER THE COURT OF CRIMINAL APPEALS ERRED WHEN IT REVIEWED FOR AN ABUSE OF DISCRETION, RATHER THAN DE NOVO, THE MILITARY JUDGE’S LEGAL CONCLUSION THAT APPELLANT’S PLEAS WERE PROVIDENT."

The opinion below, authored by the learned Judge White, is another one of those unpublished opinions that seems more worthy of publication than a lot of what shows up in the Military Justice Reporter. United States v. Inabinette, No. NMCCA 200602228 (N-M. Ct. Crim. App. June 12, 2007). Here's a link. The opinion concluded that "[b]ecause the military judge exercises discretion, the decision to accept a guilty plea is entitled to deference on appellate review, and it is appropriate to review that decision for abuse of discretion. The Prater substantial basis test establishes the degree of deference. Prater, 32 M.J. at 436; see Shaw, 2007 CAAF LEXIS 537, at 4; Logan, 47 C.M.R. at 3." Id., slip op. at 3-4.

Jurisdictionpalooza

This was Jurisdiction Day at CAAF, as the court heard back-to-back arguments on granted petitions challenging CCA rulings in favor of the government on Article 62 appeals. CAAF had specified issues in both cases concerning its own jurisdiction to hear such a case. Roughly the first fifteen minutes of each of the four counsel's arguments were devoted to the jurisdiction issue.

Those who missed the arguments, to quote Henry V, "Shall think themselves accurs'd they were not [t]here." Lopez de Victoria, the Army case, was first. I don't know if this will carry through on the audio file of the argument on CAAF's web (it isn't up yet), but the atmosphere in the courtroom was filled with tension. The bench was extremely hot with the exception of Judge Erdmann, who asked the second question in the argument but then spoke no more. When Michael, the Navy case, was argued, it was as if the storm had passed and there was a less charged discussion of the jurisdiction issue.

Speaking of the second argument, I had previously written here about the inconsistent positions advanced by Army GAD on behalf of the United States and the Air Force Appellate Government Division on behalf of the Department of the Air Force. (Army GAD argued that CAAF didn't have jurisdiction to review a CCA ruling on an Article 62 appeal while the Air Force Appellate Government Division argued that it did.) At the time I hadn't seen the Navy-Marine Corps Appellate Government brief. I read it today; it's an impressive piece of advocacy that sided with the Army in the intramural governmental split. I was nevertheless amused to see the Air Force Appellate Government representatives attending today's argument sitting on the government side of the aisle.

It is usually foolish to attempt to predict a case's outcome on the basis of oral argument. But perhaps not this time. By 1100 this morning, probably no one in the courtroom doubted that Chief Judge Effron, Judge Baker, and Judge Stucky will vote for the proposition that CAAF has jurisdiction to review a CCA's ruling on an Article 62 appeal. While Judge Erdmann didn't tip his hand, Chief Judge Effron emphasized that accepting Army GAD's and the Navy-Marine Corps Appellate Government Division's arguments that CAAF had no jurisdiction would require overruling United States v. Leak, 61 M.J. 234 (C.A.A.F. 2005) -- a case in which the majority was comprised of Judge Baker, then-Judge Effron, Judge Erdmann, and Judge Crawford. So if Judge Erdmann takes the same position he did in Leak, he will likely join the apparent Effron-Baker-Stucky majority. (Chief Judge Effron emphasized that such a ruling would require overruling a number of other CMA/CAAF decisions as well. At one point, Judge Baker even suggested that the Army GAD counsel arguing the case consult with his second chair for the government's position on the effect that accepting the GAD argument would have on such precedent. The Army GAD counsel did so, resumed the podium, and stuck to his guns by announcing that in the government's view, those decisions would be nullities.)

Today Judge Ryan was certainly the juri-skeptic on the bench. In fact, much of the argument appeared to be thrusts and parries between the center of the bench and Judge Ryan delivered through questions to counsel.

While the discussion of the specified issues seemed deeper in Michael, that may prove to be the less interesting of the two cases. In Michael, CAAF appears highly likely to rule that it has jurisdiction to review NMCCA's opinion and then affirm that opinion, though perhaps on a different ground (Judge Baker's suggested "One Josh Rule" perhaps -- a lighter moment to listen for on the audio file). If that's the outcome, then there is little prospect for a cert petition to review the propriety of CAAF's exercise of jurisdiction. (It's possible that there could be a cross-petition raising the jurisdictional issue, but that seems unlikely given the SG's modus operandi in responding to military cert petitions.) But Lopez de Victoria seemed like a much closer call on the merits. If CAAF rules that it has jurisdiction to review ACCA's holding and then overrules it, will the Solicitor General seek cert in a reprise of Clinton v. Goldsmith? From my extremely limited knowledge of the government's cert decision making process, it would seem that the Air Force Appellate Government Division's support for CAAF jurisdiction would render a government cert petition far less likely. But if that is the outcome in Lopez de Victoria, presumably the Kabul Klipper will start another Golden CAAF vigil. Stay tuned -- Lopez de Victoria may be one of the most exciting decisions of this term. It was certainly one of the most exciting oral arguments.

New CAAF grant

I understand that CAAF granted review today in a Navy-Marine Corps case concerning the proper standard of review for challenges to the providence of a plea. With luck it will be on the tomorrow's daily journal update and we can examine it in greater depth. Can any naval appellate counsel out there give us any more gouge?

CAAF's focus on its own jurisdictional limitations continues

Last Wednesday's Daily Journal includes an interesting summary disposition. United States v. Greenway, No. ACM 37008 (A.F. Ct. Crim. App. May 31, 2007) (per curiam), was a merits submission in which the Air Force Court sua sponte identified a problem with one of the findings. The court set aside the finding of guilty to one specification, but nevertheless affirmed the adjudged and approved sentence of a bad-conduct discharge and reduction to E-1. The Air Force Court articulated this denial of meaningful sentence relief in a rather curious fashion. The court wrote: "After carefully reviewing the record of trial, we are convinced beyond a reasonable doubt the members would have imposed at least a bad-conduct discharge and reduction to the grade of E-1 in the absence of error. See Doss, 57 M.J. at 185. Accordingly, we reassess the sentence as follows: a bad-conduct discharge and reduction to E-1." Id., slip op. at 4. AT LEAST the same sentence that the members had actually adjudged? That seems to suggest that the members might have sentenced the accused to a greater sentence had he been convicted of one less specification. Also, that language sure makes it look like the court is actually reducing the adjudged sentence. I've relooked at the opinion three times to make sure that I'm correct that the reassessment left the adjudged and approved sentence unchanged. What an odd way to say that the court is affirming the sentence as adjudged.

Following the Air Force Court's ruling, A1C Greenway petitioned CAAF, which granted his petition and summarily set aside AFCCA's opinion last Wednesday. United States v. Greenway, __ M.J. ___, No. 07-0740/AF (C.A.A.F. Nov. 7, 2007) (summary disposition). The reason for CAAF's action is that the Air Force Court omitted a finding when it set out the case history. As CAAF noted, "[I]n summarizing and modifying the approved findings, the Court of Criminal Appeals made no mention of the guilty findings to Charge IV and its Specification (making a false pass) that had been approved by the convening authority." CAAF then observed:

Because this offense went unmentioned, it is unclear whether it was affirmed and was part of that court’s sentence reassessment under United States v. Sales, 22 M.J. 305 (C.M.A. 1986). Under Article 67(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 867(c) (2000), this Court can only act with respect to findings as affirmed by a court of criminal appeals.

CAAF's statement about reassessment is somewhat enigmatic. Realizing that A1C Greenway was actually convicted of still another spec certainly wouldn't have convinced AFCCA that instead of awarding no meaningful relief, it should set aside a portion of the sentence. So this appears to be something of a throwaway line. That heightens the importance of the second sentence: CAAF has no jurisdiction to act on the false pass offense because it wasn't affirmed by AFCCA. It seems that CAAF's jurisdictional limitation antenna is out. Speaking of which, CAAF's oral arguments in Lopez de Victoria and Michael are back-to-back this Wednesday starting at 0900. See you there.

Pumping out the pubs

The August Army Lawyer is now available online here. It starts with this 45-page piece on the new Article 120. Major Jennifer S. Knies, Two Steps Forward, One Step Back: Why the New UCMJ's Rape Law Missed the Mark, and How an Affirmative Consent Statute Will Put It Back on Target, Army Law., Aug. 2007, at 1. The second article, available here, is also of interest to military justice folks: Major John M. McCabe, How Far Is Too Far? Helping the Commander to Keep Control Without Going over the Line; the Trial Practitioner’s Guide to Conditions on Liberty and Article 13 Credit, Army Law., Aug. 2007, at 46.

Hakuna Watada

On Thursday, the United States District Court for the Western District of Washington issued a preliminary injunction stopping the court-martial proceeding in United States v. Watada. Watada v. Head, No. C07-549BHS. A copy of the court's 33-page opinion and order is available on NIMJ's web site here.

Judge Settle finds that 1LT Watada is likely "to succeed on the merits of his double jeopardy claim because the military judge abused his discretion in rejecting [a confessional stipulation] midway through the trial on the same information upon which he [originally] accepted it, and there was no manifest necessity for calling a mistrial, and that the record does not reflect that reasonable alternatives to calling a mistrial were explored or entertained." Id., slip op. at 22.

In concluding that it is appropriate for an Article III court to consider 1LT Watada's claim while military proceedings are ongoing, Judge Settle emphasized that both ACCA and CAAF had declined to grant extraordinary relief. Judge Settle reasoned, "Under these circumstances, where Petitioner has exhausted his military court remedies on the issue of double jeopardy, allowing the second court martial to go forward would not aid the military in developing the facts, applying the law, or correcting their own errors. The military courts have already had their opportunity to develop the facts, apply the law, and to correct their own errors, and the pending court martial will not address any of the issued raised by this petition." Id., slip op. at 14.

One of the most interesting portions of the opinion concerned the proper standard of review for habeas claims challenging court-martial proceedings. Judge Settle wrote: "Because AEDPA does not apply to petitions under 28 U.S.C. § 2241, pre-AEDPA standards govern this Court's review: determinations of law are reviewed de novo and findings of fact are presumed to be correct. Hoyle v. Ada County, 501 F.3d 1053, 1059 (9th Cir. 2007)." Id., slip op. at 19.

Judge Settle's opinion is uncommonly undeferential and anti-abstention. An order issuing a preliminary injunction is immediately appealable. See 28 U.S.C. § 1292(a)(1). Stay tuned for further developments.

Not a unitary Code of Military Justice

Here's an oddity. In United States v. Lopez de Victoria, the government prevailed on an Article 62 appeal before ACCA. The defense then submitted a petition for grant of review, which CAAF granted. CAAF has now called for briefing in both Lopez de Victoria and Untied States v. Michael concerning whether CAAF has jurisdiction in such a case.

Army GAD, in a brief expressly filed "on behalf of the appellee, the United States of America," takes the position that CAAF has no jurisdiction to review a CCA's ruling on an Article 62 appeal. Yet the Air Force Appellate Government Division, in an amicus brief filed "on behalf of the United States Air Force" takes the position that CAAF does have jurisdiction over such cases. So much for the unitary executive.

The Air Force Appellate Government Division's argument relies in part on the canard of interpretation by congressional inaction. The amicus brief seeks to insulate CMA's opinion in United States v. Tucker, 20 M.J. 52 (C.M.A. 1985), from the threat of being overturned by arguing that Congress hasn't objected to Tucker. The brief argues: "Most importantly, in the 22 years since Tucker was announced, Congress has not acted to overrule the holding legislatively. This is despite the fact that both Articles 62 and 67 have been amended multiple times since 1985." Air Force Appellate Government Amicus Brief at 3.

The Supremes have rightly rejected this form of argument:

It is "impossible to assert with any degree of assurance that congressional failure to act represents" affirmative congressional approval of the Court's statutory interpretation. Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616, 671-672 (1987) (Scalia, J., dissenting). Congress may legislate, moreover, only through the passage of a bill which is approved by both Houses and signed by the President. See U. S. Const., Art. I, § 7, cl. 2.

Patterson v. McLean Credit Union, 491 U.S. 164, 175 n.1 (1989).

In Justice Scalia's Johnson dissent, which the majority adopts in Patterson, he explained the reason why congressional inaction lacks persuasive force:

[O]ne must ignore rudimentary principles of political science to draw any conclusions regarding that intent from the failure to enact legislation. The "complicated check on legislation," The Federalist No. 62, p. 378 (C. Rossiter ed. 1961), erected by our Constitution creates an inertia that makes it impossible to assert with any degree of assurance that congressional failure to act represents (1) approval of the status quo, as opposed to (2) inability to agree upon how to alter the status quo, (3) unawareness of the status quo, (4) indifference to the status quo, or even (5) political cowardice.

Johnson v. Transportation Agency, 480 U.S. 616, 671-72 (1987) (Scalia, J., dissenting).

This situation likely reflects option #3. How many Members of Congress know of Tucker or what it held? The notion that the failure of a majority of both houses of Congress to rise up and repudiate Tucker must mean that they agree with Tucker is risible. Additionally, as Justice Scalia also explained in Johnson, even if congressional inaction did have any validity, it doesn't tell us anything about what the Congress that enacted Article 67 (or, for that matter, even Article 62) had in mind. Rather, it speaks at most to the views of Congresses from 1985 on -- which were not the Congresses that enacted the legislation at issue and, hence, not Congresses whose views should be sought to interpret either Article 67 or Article 62. See id. at 671 (noting "the patently false premise that the correctness of statutory construction is to be measured by what the current Congress desires, rather than by what the law as enacted meant").

Army GAD's brief, arguing for the opposite outcome, also seems to make at least one major mistake. GAD essentially tells CAAF that if it overturns Tucker, it need not fear that parties couldn't seek relief from erroneous CCA rulings on Article 62 appeals because the loser can take the case to CAAF via a petition for extraordinary relief. This position is only half right. GAD's brief in Lopez de Victoria states: "The All Writs Act provides an equal playing field to both the Government and the defense to seek relief from adverse interlocutory rulings and affords this Court with jurisdiction to review those cases which justify further review." Government Brief at 14 (emphasis added). Of course, the All Writs Act doesn't grant jurisdiction. As the Supremes noted in Clinton v. Goldsmith, "The All Writs Act . . . is not an independent grant of appellate jurisdiction." 526 U.S. 529, 535 (1999) (quoting 16 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3932, at 470 (2d ed. 1996)). So GAD's position that the All Writs Act affords jurisdiction is legally erroneous. GAD is also wrong in suggesting that under its preferred regime, the government and defense would be on an equal extraordinary relief playing field. In fact, the defense's position would be far more favorable than the government's.

CAAF could review a CCA ruling on an Article 62 appeal via a petition for extraordinary relief, but only if the case were to fall within CAAF's potential appellate jurisdiction. See FTC v. Dean Foods Co., 384 U.S. 597, 603-04 (1966). BUT a case in which a CCA ruled on an Article 62 appeal will generally remain within CAAF's potential appellate jurisdiction only if the CCA rules against the accused. This is because such a ruling will send the case back for continued court-martial proceedings, which then clearly fall within CAAF's potential appellate jurisdiction, thereby falling within its All Writs Act authority. But when the CCA rules for the defense, the result is generally an end of proceedings. And a case in which the CCA ended proceedings can no longer fall within CAAF's potential appellate jurisdiction, since it can't produce a conviction. So GAD is too sanguine in thinking that the government will have an avenue to reach CAAF any time it loses an Article 62 appeal before a CCA. The defense will always have the ability to seek a writ from CAAF when it loses an Article 62 appeal at the CCA level; the government usually won't.

Another stealth published NMCCA decision

On Halloween, NMCCA issued a published opinion in United States v. Mendoza, __ M.J. ___, No. NMCCA 200602353 (N-M. Ct. Crim. App. Oct. 31, 2007).

The opinion showed up today on NKO, though it still isn't available on NMCCA's web site or LEXIS. (For comparison purposes, ACCA's opinion in United States v. Conliffe is also dated on Halloween; it was up on ACCA's web site on All Saints Day.) I have posted Mendoza on CAAFlog's web site here.

Here's the issue in Mendoza: when an appellate court remands a case for a new CA's action because the original action was ambiguous, must the SJA or legal officer prepare a new 1106 advice and must the defense be given an opportunity to present clemency? Not necessarily, rules NMCCA.

The CA's original action in Petty Officer Mendoza's case stated: "only such of the sentence as provides for reduction to the grade of pay grade E-1, confinement for 90 days, is approved and except for the part of the sentence extending to a bad conduct discharge, will be executed." Five months after the CA took that action, NMCCA sua sponte sent the case back for a new action to resolve the ambiguity concerning whether the CA meant to approve the BCD. Two months later, the CA took a new action. Though NMCCA's opinion doesn't indicate what the CA did in this second action, presumably it made clear that he approved the BCD. When the case returned to the Navy-Marine Corps Court, the appellate defense counsel indicated that he had no issues to present. NMCCA then specified the issue of whether a new 1106 recommendation was required, with service on the accused, before the CA took that action.

NMCCA held:

[W]e decline . . . to establish a per se rule requiring the issuance of a new SJAR/LOR and provision of a new opportunity for the appellant to submit matters in clemency whenever a new convening authority’s action is issued. . . . [W]e conclude that the passage of time and the particular post-trial circumstances of an appellant may in some cases, create a presumption of staleness requiring a new SJAR/LOR and a new opportunity to submit clemency matters.

Mendoza, No. NMCCA 200602353, slip op. at 3.

But here's where things get tricky. NMCCA provides: "The passage of time, standing alone, will not raise a presumption of staleness. To raise the presumption, the appellant must submit some evidence of his changed circumstances and assert what, if any, material he would have provided to the convening authority if given a new opportunity." Id. But, of course, that is an entirely post-hoc standard. Before taking the action, how is an SJA or CA to know whether the accused would or wouldn't submit new matter if the defense is never given an opportunity to do so? After Mendoza, any reasonable SJA advising a CA upon remand will prepare a new 1106 action and serve it on the defense to avoid the case returning for a third CA's action. And surely that is what NMCCA intended -- to make that the default practice while declining to automatically grant relief to an accused if the SJA or legal officer fails to follow that prudent course. Indeed, NMCCA expressly observed:

[W]e also urge staff judge advocates and convening authorities to carefully consider whether the passage of time could have affected the appellant’s circumstances such that a failure to issue a new SJAR/LOR and provide the appellant a new opportunity to present clemency matters would “undermine the purpose of R.C.M. 1106.” [United States v. Lawhorn, No. NMCCA 200600128, slip op. at 12, 2007 CCA LEXIS 195 (N-M. Ct. Crim. App. June 20, 2007).] In such cases, the issuance of a new SJAR/LOR and provision of an opportunity to submit additional clemency matters may be a prudent course of action.

Mendoza, No. NMCCA 200602353, slip op. at 3.

CAAF grants review of Mil. R. Evid. 807 issues

On Monday, CAAF granted review of the following issues:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY ADMITTING INTO EVIDENCE AAC'S HEARSAY STATEMENTS IN VIOLATION OF MIL.R.EVID. 807 AND THE SIXTH AMENDMENT OF THE CONSTITUTION.

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY ADMITTING INTO EVIDENCE AAC'S HEARSAY STATEMENTS IN VIOLATION OF THE NOTICE REQUIREMENT OF MIL.R.EVID. 807.

United States v. Czachorowski, __ M.J. ___, No. 07-0379/NA (C.A.A.F. Nov. 5, 2007).

The Navy-Marine Corps Court's unpublished opinion, which briefly discusses these issues, doesn't appear to be on a publicly available web site (or LEXIS), but is on NKO. Here's the relevant discussion:

We find no merit in the appellant's contention that the military judge abused his discretion in admitting hearsay statements of the victim through her mother and grandparents under the residual hearsay exception.[n1] We conclude the military judge correctly applied the law in ruling the statements admissible under MILITARY RULE OF EVIDENCE 807, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2002 ed.). See Record at 154-66, 223-28, 233, 246-47, and 324-28; see also United States v. Donaldson, 58 M.J. 477, 488-89 (C.A.A.F. 2003). Similarly, we find the military judge's ruling did not violate the notice requirement of MIL. R. EVID. 807. See Record at 154. Finally, we find the victim's spontaneous statements to her mother and in response to her father were not "testimonial" in nature, and thus their admission did not violate the Sixth Amendment to the United States Constitution under the United States Supreme Court's reasoning in Crawford v. Washington, 541 U.S. 36 (2004).

[n1] We need not discuss the appellant's sub-contention that a similar statement was erroneously admitted through an investigator's notes taken while interviewing the victim's grandfather. From our reading of the record, it appears the military judge admitted the notes for a non-hearsay purpose; that is, to show that the grandfather did not recently fabricate the purported statement after failing to mention it in his interview with the investigator. In any case, this ruling had little or no impact on the military judge's previous decisions to admit the victim's spontaneous statements through three witnesses pursuant to MILITARY RULE OF EVIDENCE 807, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2002 ed.).

Complicated but fascinating issue

On Tuesday, CAAF granted review of the following issue concerning court-martial composition:

WHETHER THE COURT-MARTIAL CONVENED BY SPECIAL ORDER AB-12 HAD PROPER JURISDICTION WHEN THAT ORDER DID NOT TRANSFER MEMBERS APPOINTED BY PRIOR ORDERS AB-01, AB-07, AND AB-09, BUT MEMBERS NAMED IN THOSE ORDERS NONETHELESS SAT AS MEMBERS OF APPELLANT'S COURT-MARTIAL.

United States v. Adams, __ M.J. ___, No. 07-0796/AF (C.A.A.F. Nov. 6, 2007) (order granted review).

The Air Force Court's unpublished opinion, which featured a lengthy discussion of this issue which the Air Force Court itself had originally identified, is available here. United States v. Adams, No. ACM 36226 (A.F. Ct. Crim. App. June 20, 2007).

Two steps forward, one step back

Upon my return home this evening, I have found about a week's worth of new material on CAAF's daily journal.

On 6 June 2007, CAAF had granted review of the following issue:

IN VIEW OF THE PRINCIPLE THAT A MILITARY JUDGE IS PRESUMED TO KNOW AND APPLY THE LAW CORRECTLY, IN A CASE IN WHICH THE JUDGE SITTING ALONE, EVALUATED THE APPELLANT'S CREDIBILITY BASED UPON TWO SPECIFICATIONS LATER DISMISSED ON APPEAL, DID THAT DISMISSAL CREATE IMPROPER SPILLOVER IN THE JUDGE'S CREDIBILITY DETERMINATIONS REGARDING THE APPELLANT'S TESTIMONY AS TO THE REMAINING OFFENSES?

United States v. Martinez, 65 M.J. 278 (C.A.A.F. 2007) (order granting review).

According to CAAF's Scheduled Hearings page, the court heard a 15-minute argument in the case on 16 October. At least according to the public hearing notice, the issue was specified. Apparently it wasn't as interesting a question as at least two judges orginally thought. Last Thursday, CAAF rejected the specified issue in a summary disposition, ruling:

Upon further consideration of the granted issue, 65 M.J. 278-79 (C.A.A.F. 2007), the Court notes that military judges are presumed to know the law and follow it absent clear evidence to the contrary, United States v. Erickson, 65 M.J. 221, 225 (C.A.A.F. 2007), including the principle that each offense and the evidence supporting that offense must stand on its own. See United States v. Southworth, 50 M.J. 74, 76-78 (C.A.A.F. 1999). In this case, Appellant has not rebutted that presumption. Accordingly, it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

United States v. Martinez, __ M.J. ___, No. 07-0028/MC (C.A.A.F. Nov. 1, 2007) (summary disposition).

Garcia still on Supremes' docket

The very odd case of Garcia v. United States, No. 07-7342, which we previously discussed here, is still on the Supremes' docket. In fact, it has now been scheduled for conference on 20 November. But Garcia's reconsideration petition still appears to be pending before CAAF. Now that could result in an interesting test of CAAF's jurisdiction.

Cert denied in jurisdictionless case

As we previously discussed here, here, and here, the Supremes didn't have statutory cert jurisdiction in the case of Gowanlock v. United States, No. 07-6927, because CAAF had denied the petition for grant of review. Gowanlock nevertheless filed a pro se IFP cert petition. As usual, the SG waived response rather than moving to dismiss the petition. On Monday, the Supremes announced that they had denied the cert petition.

Why Condi Rice Needs a Trip to Pier 1

As was extensively reported last week, the Iraqi Cabinet approved draft legislation that would revoke immunity from Iraqi law for private security contractors operating in Iraq on behalf of the U.S. military or any other U.S. government entity. As the New York Times reported, Thamir Ghadban, chairman of Iraqi Prime Minister Maliki’s council of advisers, summed up the legislative history of the law, "This decision does not just cover Blackwater; it will cover all the foreign security firms operating in Iraq . . . This law will protect Iraqis and Iraq’s sovereignty.”

The provocative part of the story, and military justice relevant portion of the story, was the reference to a statement by a Shiite member of parliament reported by the NYT, "Parliament is likely to amend the measure, but, according to a Shiite member of Parliament, only to make it tougher and more restrictive." Tougher and more restrictive? Hmm, are they thinking of expanding the withdrawal of immunity beyond PSCs or defining PSCs more broadly? Will Parliament expand the revocation to include military members?

This would be an extraordinary development since Iraq is the only country with which the US does not have a SOFA and where significant US forces are based in the country. Interestingly, I have heard some argue that Iraq cannot revoke CPA Order 17, the order giving US contractors immunity from Iraqi law, which seems contrary to what I thought was the prerogative of a sovereign, but I am no I-law expert. Regardless of your thoughts on Iraq's ability to revoke CPA Order 17, I think we can all agree that the best world is one where Sec. State lawyers and uniformed lawyers get that Iraqi SOFA deal done quickly.

Summer in C'ville

Greetings from points south, where my Internet connection appears to involve a couple of tin cans and an enormous length of twine.

The summer 2007 issue of the Military Law Review has now been posted here. Though none of its three articles (excluding book reviews) is directly relevant to military justice, they may nevertheless interest military justice practitioners. The three articles are:

(1) Alternatives to the Judicially Promulgated Feres Doctrine;
(2) Beyond Interrogations: An Analysis of the Protection Under the Military Commissions Act of 2006 of Technical Classified Sources, Methods and Activities Employed in the Global War on Terror; and
(3) A Critique of the ICRC's Customary Rules Concerning Displaced Persons: General Accuracy, Conflation, and a Missed Opportunity.