Wednesday, December 05, 2007

Second and third CAAF opinions of the Term

CAAF released two unanimous opinions today. One of them resolves an important legal issue: whether the common law "joint crime participant" or "crime/fraud" exception applies to Military Rule of Evidence 504 spousal communications privilege. In an opinion by Judge Ryan, CAAF unanimously concludes that it does not. United States v. Custis, __ M.J. ___, No. 07-0188 (C.A.A.F. Dec. 5, 2007). The opinion acknowledges that "[e]very federal circuit that has addressed the issue has found a 'joint crime participant' or 'crime/fraud' exception to the common law marital communication privilege." Id., slip op. at 8-9. But, the opinion holds, no such exception is included in Military Rule of Evidence 504 and "the authority to add exceptions to the codified privileges within the military justice system lies not with this Court or the Courts of Criminal Appeal, but with the policymaking branches of government." Id., slip op. at 9. CAAF also rejects the view that Military Rule of Evidence 501(a)(4), which authorizes the application of some federally recognized common law privileges to the military justice system, can be used to create an exception to an enumerated privilege. Id., slip op. at 10-11.

I think Custis is absolutely correct (a view with which JMTGst will likely disagree) and will almost certainly lead to a change in Military Rule of Evidence 504 to adopt a joint crime participant exception -- as the opinion expressly recognizes that the President is empowered to adopt. Id., slip op. at 9 n.8.

Today's second opinion is United States v. Parrish, __ M.J. ___, No. 07-0079/AR (C.A.A.F. Dec. 5, 2007), a unanimous opinion by Judge Erdmann. Parrish is a fact intensive decision involving application of the Ginn factors to determine whether ACCA could resolve a factual dispute itself or was required to remand the case for a DuBay hearing. CAAF concludes -- correctly, in my opinion -- that a DuBay hearing is necessary to resolve the factual conflict. But the whole Ginn approach cries out for a Manual change far more than does any need to tinker with Military Rule of Evidence 504. This is because every state and the federal civilian criminal justice system has a "post-conviction" proceeding or its equivalent to allow a convicted defendant who has completed direct appeal to challenge his or her conviction or sentence based on evidence from outside the record. See generally Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and Procedure 190 (4th ed. 2001). The House Armed Services Committee intended the petition for new trial to play a similar role in the military justice system, but it hasn't proved to be an effective counterpart, which has led CAAF to create the whole DuBay/Ginn framework. But this framework seems an inadequate substitute for a post-conviction proceeding because it plays out at the appellate level rather than the trial level, which in turn leads to enormous difficulties in fact finding and fact proving. Battles of affidavits ensue, leading to opinions like today's Parrish decision. There has got to be a better way. Any judge advocates who are now at TJAGLCS or who will be going there soon might want to make that their thesis topic -- is the current military justice analog to a post-conviction/28 U.S.C. § 2255 proceeding adequate and, if not, what system should be adopted in its place?


Christopher Mathews said...

I think Custis is absolutely correct (a view with which JMTGst will likely disagree) ...

Hard to say. In the absence of the Smith decision, I might well have looked at this issue differently. I'm not sure there's a good way to assess that. I certainly agree with Judge Ryan's conclusion that CAAF's disposition of the issue is not absurd.

As an aside ... now that Smith has been implicitly reversed, I hope the Shepard's citations folks will find a way to note that it's no longer good law. That doesn't always happen, and I can think of at least one occasion where the old rule was followed by the trial court because it still appeared to be good law.

Anonymous said...

parrish - and yet another defer/waive reduction/forfeiture case caused by that abysmal, incomprehensible statute, 10 usc 858b interplaying with 10 usc 857 - and weren't effron and stuckey on the sasc when that law was written - why not just pay parrish his back forfeitures, skip the dubay, and save a lot of time, money, and aggravation - ginn has to be on the top 10 worst military justice cases of all time

No Man said...

Anonymous ee cummings should tell us how he/she really feels.

Having some experience with the civilian post conviction AEDPA process, I am not sure I agree with CAAFlog that the current 2255 process is all that good a substitute. Congress, and particularly Mr. Feeney, have substantially f . . . messed up the system to the point that I am not sure anyone should be crying for 2255 rights--
or what is left of them.

Anonymous said...

In reference to DuBay, sometime possible answer (i.e. some form of bifurcated appellate process) creates more problems then it solves. As it exists, the CCA's factfinding powers can often resolves collateral claims without the need for a hearing. . . just not in this case. As evidence of the system functioning properly, consider how infrequently CAAF needs to step in to resolve Ginn issues.

As for "just paying the guy" the cases of Hardcastle, Perron, Lundy address that response.