Saturday, September 29, 2007
Appellate defense and government counsel: Do you have a military justice case in which an amicus curiae brief might be appropriate? Please let us know!
Chief Judge Everett has provided this helpful synopsis of the law governing fornication in the military:
In summary, the treatment of adultery and fornication in military law seems to be this: (a) two persons are guilty of adultery whenever they engage in illicit sexual intercourse if either of them is married to a third person; (b) if unmarried, they are guilty of fornication whenever they engage in illicit sexual intercourse under circumstances in which the conduct is not strictly private; and (c) private sexual intercourse between unmarried persons is not punishable.
United States v. Hickson, 22 M.J. 146, 150 (C.M.A. 1986).
Friday, September 28, 2007
The House version of the proposal, H.R. 2740, is rocketing forward. Yesterday an amended version of the proposal was reported out of the House Judiciary Committee.
The bill also picked up three new co-sponsors: Rep. Timothy Bishop [Dem. NY-1], Rep. Earl Blumenauer [Dem. OR-3], and Rep. Keith Ellison [Dem. MN-5].
Like far too many court-martial cases, Davis was a case about child sex abuse. (Has anyone done a study of why we see so many of these cases in the military justice system?)
Staff Sergeant Davis pled guilty to one indecent acts on divers occasions spec involving Stepdaughter #1 [MR] and pled not guilty but was convicted of a second spec involving his Stepdaughter #2 [LM].
ACCA uses the case to resolve an issue of first impression: whether in a mixed plea case, a military judge may consider the accused's statements from the Care inquiry in ruling on the admissibility of evidence in the contested portion of the case. Held: Not unless the accused knowingly consents to such a use.
To prove up the molestation of Stepdaughter #2, the prosecution sought to introduce Stepdaughter #1's testimony about his molestation of her several years before. The defense objected. The military judge overruled the objection, finding that the events were sufficiently similar to overcome a Military Rule of Evidence 403 objection to this evidence that would otherwise be admissible under Rule 414. In assessing the offenses' similarity, the military judge indicated that he considered what SSG Davis had said about the previous molestation during his Care inquiry.
In holding that the military judge erred by considering the Care inquiry in ruling on the admissibility of evidence on the disputed specification, ACCA first observed, "When making evidentiary rulings, a military judge is not bound by the rules of evidence. Mil. R. Evid. 104(a)." Davis, slip op. at 7. ACCA nevertheless held "that, absent any affirmative waiver by appellant -- of which there was none in this case -- the military judge could not consider statements made during the providence inquiry for such evidentiary rulings." Id.
ACCA reasoned that the "judicial policy limiting the use of judicial admissions made during a guilty plea inquiry is a long-standing tenet of military justice." Id. (citing United States v. Ramelb, 44 M.J. 625, 628 (A. Ct. Crim. App. 1996)).
Most significantly, ACCA cited United States v. Grijalva, 55 M.J. 223, 228 (C.A.A.F. 2001), in support of the proposition that statements made during a providence inquiry may not be considered "for a purpose not within [the accused's] limited waiver of the right against self-incrimination." Davis, slip op. at 8.
At first I was skeptical about Davis's holding, but ACCA's reasoning here convinced me. ACCA doesn't hold that a military judge may never use an accused's statements during the providence inquiry in ruling on the admissibility of evidence going to another charge; rather, ACCA simply holds that a military judge may not do so unless the accused knowingly and intelligently consented to doing so. If the accused wants to plead out to one spec while litigating another spec, the government can seek to make this a term in any pretrial agreement. So this holding, whether right or wrong. will probably have little long term effect.
Okay, so far ACCA is one-for-one. ACCA then rules on whether the evidence of molestation of Stepdaughter #1 was relevant to the charged molestation of Stepdaughter #2 omitting consideration of anything Davis said during his providence inquiry. Davis, slip op. at 9. Yes; slam dunk. Id., slip op. at 9-10 (citing United States v. Wright, 53 M.J. 476, 482 (C.A.A.F. 2000)). Now ACCA is two-for-two.
But the next section of ACCA's opinion is troubling:
Additionally, we note MR's testimony was relevant entirely apart from its value in demonstrating appellant's propensity to molest his stepdaughter; her testimony explained why she worried what her stepfather might be doing to LM and why MR felt the need to create a commotion. In other words, her deliberate attempt to make noise and get her father out of LM's bedroom made sense because MR knew from firsthand experience there was reason to suspect her father was doing something criminal to her sister. MR's testimony also served to explain her questioning of her sister and her careful attention to LM's body language and behavior, all of which were particularly relevant given appellant’s strategy of contesting LM's credibility and attributing LM's statements to some form of instigation by MR.
Id., slip op. at 10-11.
In other words, ACCA is saying that the evidence was independently relevant to prove why Stepdaughter #1 suspected that SSG Davis had committed a criminal act with Stepdaughter #2. ACCA might be right or it might be horribly wrong, depending on just what the final sentence quoted above means. The evidence about MR's thinking couldn't have been admissible in the first instance, but could have become admissible as the result of cross-examination of MR. Unfortunately ACCA's opinion doesn't adequately distinguish the two possibilities.
Imagine a witness taking the stand and being asked by the prosecutor, "Do you think the accused did it?" And then, if the military judge for some unfathomable reason let the witness answer the question, the prosecutor followed it up with, "And could you please explain to the court why you think the accused did it?" Let's be even more specific. What if the prosecutor had called Stepdaughter #1 [MR] to the stand and asked her, "Do you think the accused molested your sister?" If there were no objection or if an objection were overruled, it would be reversible error for her to answer, "Yes." And then if the prosecutor asked, "Could you please tell the court why," it would be another reversible error if she were allowed to answer, "Because he did it to me." It is irrelevant WHY Stepdaughter #1 made noise in the bathroom, though the fact that she did and the accused's response are EXTREMELY relevant. Of course the defense might open the door to her reasons through its cross-examination. But surely the prosecution can't open that door itself. Similarly, it is irrelevant WHY Stepdaughter #1 suspected molestation by the accused as the cause of her sister's dismay, though the fact that she noted her sister's distress and inquired about it, yielding an excited utterance is EXTREMELY relevant. Once again, cross-examination might open the door to questions on redirect to explain why Stepdaughter #1 questioned her sister, but the prosecution can't open the door itself.
It would have been helpful if ACCA's decision provided more details about how the defense "attribut[ed] [Stepdaughter #2's] statements to some form of instigation by [Stepdaughter #1]." Unless the defense has somehow opened the door to questions about why a witness believes the accused is guilty, a military practitioner who relies on this part of ACCA's opinion will likely be planting a time bomb in the case that will explode during appellate review.
Here's the QP in the Harrow cert petition:
Whether the Court of Appeals for the Armed Forces erred in finding harmless error despite determining that the trial court made three, erroneous, critical rulings—namely:
(1) that the trial judge erred by preventing the defense from impeaching the testimony of the deceased baby’s father (the only other person present during the alleged shaking incident) with prior inconsistent statements regarding the baby's interactions with Appellant and regarding the baby's cries after Appellant left the house;
(2) the military judge erred by denying a defense motion in limine to exclude the testimony of various witnesses regarding Appellant’s pattern of minor parental abuse where the testimony constituted inappropriate character evidence that was unfairly prejudicial.
(3) the military judge erred by allowing the prosecution's expert witness to present inadmissible profile evidence that placed Appellant in the profiled category and excluded the deceased baby’s father—the only other suspect—from the profiled category.
Thursday, September 27, 2007
No. 07-0544/AR. U.S. v. Kevin L. McILWAIN. CCA 20040095. Review granted on the following issue:
WHETHER THE MILITARY JUDGE, IN A TRIAL BEFORE A COURT-MARTIAL PANEL ERRED IN DENYING A MOTION FOR RECUSAL AFTER STATING THAT WHILE SHE BELIEVED SHE COULD REMAIN IMPARTIAL IN A TRIAL BY MEMBERS, SHE WOULD RECUSE HERSELF IF SHE WERE THE TRIER OF FACT. Compare, e.g., Parenteau v. Jacobson, 586 N.E.2d 15, 18 (Mass. App. Ct. 1993) with Walberg v. Israel, 766 F.2d 1071, 1076 (7th Cir. 1985).
[I can't find the decision below.]
No. 07-0639/MC. U.S. v. David M. BROOKS. CCA 200501266. Review granted on the following issue:
WHETHER APPELLANT'S SIXTH AMENDMENT RIGHT TO COUNSEL HAS BEEN VIOLATED WHERE, WHILE IN CONFINEMENT, BRIG PERSONNEL MONITORED HIS PHONE CONVERSATIONS WITH APPELLATE DEFENSE COUNSEL AND SEIZED HIS PRIVILEGED CORRESPONDENCE.
[Here is a link to the decision below. The lower court's treatment of this issue was rather cursory. The Navy-Marine Corps Court held:
In his final assignment of error, the appellant claims that procedures in place at the Camp Lejeune Brig have chilled his ability to communicate freely with his appellate counsel in preparation of his appeal in violation of the Sixth Amendment’s right to assistance of counsel. "'[A] prisoner must seek administrative relief prior to invoking judicial intervention. In this regard, appellant must show us, absent some unusual or egregious circumstance, that he has exhausted the prisoner-grievance system of the [brig] and that he has petitioned for relief under Article 138 UCMJ, 10 U.S.C. § 938.'" United States v. Miller, 46 M.J. 248, 250 (C.A.A.F. 1997)(quoting United States v. Coffey, 38 M.J. 290, 291 (C.M.A. 1993)).
We find that the issue is not ripe for our review in that the appellant has failed to exhaust his available administrative remedies. Therefore, we decline to grant relief. Even assuming this issue was ripe for our review, the evidence before us fails to show how the alleged improper brig practices have negatively impacted the appellant's ability to actively participate with his appellate counsel in the appellate process.
 That the appellant is aware of these available administrative remedies is evidenced by an Article 138, UCMJ, Complaint of Wrongs, not associated with this assignment of error, that he filed while in the brig. Defense Motion to Attach of 4 Aug 2006, App. F. Additionally, we note the appellant submitted a request mast chit to speak with the Commanding General, Marine Corps Base, Camp Lejeune, regarding issues associated with counsel communications, which he later withdrew, apparently after reaching successful resolution at an intermediate stage of the process. Defense Motion to Attach of 19 Jun 2006, App. E.
United States v. Brooks, No. NMCCA 200501266, slip op. at 16 (N-M. Ct. Crim. App. May 16, 2007).]
No. 07-0685/AF. U.S. v. Michael RODRIGUEZ. CCA 36455. Review granted on the following issue:
SINCE TWO OF THREE ALLEGED USES OF MARIJUANA WERE BASED ON UNCORROBORATED CONFESSIONS AND APPELLANT'S CONVICTION FOR USING MARIJUANA ON DIVERS OCCASIONS WAS ACCORDINGLY TRANSFORMED INTO A SINGLE USE CONVICTION BY THE AFCCA, WHETHER UNITED STATES v. SEIDER AND UNITED STATES v. WALTERS PROHIBIT AFFIRMING EVEN A SINGLE USE OF MARIJUANA BECAUSE THE MEMBERS COULD HAVE BASED THEIR "ON DIVERS OCCASIONS" CONVICTION ON THE TWO UNCORROBORATED CONFESSIONS AND FOUND APPELLANT NOT GUILTY OF THE ALLEGED USE NOW USED BY THE AFCCA TO AFFIRM THE SPECIFICATION.
[Here is a link to the decision below.]
No. 07-0690/AF. U.S. v. Rodger J. DAY. CCA 36423. Review granted on the following issue:
WHETHER THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUSTAIN APPELLANT'S CONVICTION OF CHARGE I AND ITS SPECIFICATION, FALSE OFFICIAL STATEMENT, ARTICLE 107, UCMJ, WHERE THE STATEMENTS WERE NOT "OFFICIAL" STATEMENTS.
[The false official statement conviction in Day resulted from information he provided to a 911 dispatcher and firemen concerning his infant son, who died while in the appellant's care. He argued before the Air Force Court that "his statements were not 'official' because they were made to civilians and were not related to his military duties." United States v. Day, No. ACM 36423, slip op. at 3(A.F. Ct. Crim. App. May 9, 2007). The Air Force Court rejected this argument. Id.]
Wednesday, September 26, 2007
The Air Force Court explained that "a sanity board does not have to be ordered if an adequate substitute has already been conducted." Id., slip op. at 2. The court helpfully sets out the factors to consider when determining whether a substitute is adequate:
1) participation of a psychologist or someone with similar expertise; 2) performance of a forensic mental examination; 3) knowledge by the performing doctor(s) "of the reason for doubting" the subject's "mental capacity;" 4) determination of whether the subject is capable of standing trial; 5) the ability to examine and cross-examine the performing doctor(s); . . . 6) the opinion that no further evaluation would be needed to answer the questions required by R.C.M. 706 . . . [and 7)] a description of the examiner's familiarity with forensic evaluation or participation in previous sanity boards.
Id., slip op. at 3.
The court concluded that only four of those seven factors were satisfied in this case, and that they were insufficient to establish that the staff psychologist's opinion was an adequate substitute for an R.C.M. 706 board.
The Air Force Court remedied the error by returning the case to the Judge Advocate General of the Air Force to send to a CA, who may order a sanity board to determine whether A1C Mackie is currently mentally competent, whether he was mentally competent at the time of trial, and whether he was mentally responsible at the time of his alleged offenses. Id., slip op. at 5. "Depending on the results of the board, the convening authority may order a rehearing or return the record to this Court for further review. If the convening authority finds ordering a sanity board impracticable, the record will be returned to this Court for further review." Id., slip op. at 5-6.
The more interesting part of the opinion sets aside the CA's action due to errors in the SJAR. Of particular significance, the SJA erroneously advised the officer who convened this SPECIAL court-martial that the maximum sentence included a dishonorable discharge. The DC did not comment on the error. The Air Force Court set aside the CA's action, reasoning:
The error certainly occurred and it was plain and obvious. The real issue is whether a substantial right of the appellant's was prejudiced. In this case, the only punishments imposed by the members were a reduction and a bad-conduct discharge. By advising the convening authority that the appellant could have received a dishonorable discharge, the convening authority was misinformed as to the maximum possible punishment which could have been imposed by the members. The Court believes the convening authority was thus misled in how to appropriately assess the defense request to set aside the bad-conduct discharge. In evaluating the impact of the misstatement of the maximum possible punishment, this Court is also troubled by a panoply of errors noted in both the SJAR and the defense submission to the convening authority that ultimately completely undermined the ability of the convening authority to effectively exercise his responsibilities, to the prejudice of the accused. Of particular note, the Personal Data Sheet does not reflect the three deployments of the accused. See United States v. DeMerse, 37 M.J. 488, 492 (C.M.A. 1993). It is similarly troubling that trial defense counsel's response to the SJAR and submission to the convening authority refers to a non-existent pretrial agreement, with a promise to reduce non-existent confinement.
Id., slip op. at 4-5/
In ordering relief, the Air Force Court emphasized that "the standard for meeting the test for prejudice is low in this area, requiring only 'some colorable showing of possible prejudice.'" Id., slip op. at 5 (quoting United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000)).
Tuesday, September 25, 2007
WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED BY FINDING THAT THE SEARCH OF APPELLANT'S CLOSED BRIEFCASE, LOCATED IN THE GARAGE OF APPELLANT'S HOME, DID NOT EXCEED THE SCOPE OF HIS WIFE'S CONSENT TO SEARCH THE AREAS OF THE HOME OVER WHICH SHE HAD ACTUAL OR APPARENT AUTHORITY.
WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED BY HOLDING THAT THE EVIDENCE OF THE CONTENT OF APPELLANT'S COMPUTER HARDDRIVE WAS PROPERLY ADMITTED AND WAS NOT THE PRODUCT OF AN UNLAWFUL SEARCH.
United States v. Gallagher, __ M.J. ___, No. 07-0527/MC (C.A.A.F. Sept. 24, 2007).
United States v. Allende was litigated before the Navy-Marine Corps Court by our very own Super Muppet and the formidable, albeit vowelless, LCDR Ng. United States v. Allende, No. NMCCA 200001872 (N-M. Ct. Crim. App. July 11, 2006). NMCCA disapproved three months of the accused's confinement and all of the forfeitures. See id., slip op. at 16. But Petty Officer Allende might win even more relief. Today's daily journal update included the following granted issues:
WHETHER THE LOWER COURT PROPERLY EVALUATED PREJUDICE AFTER IT FOUND THAT THE TRIAL COUNSEL ERRONEOUSLY AUTHENTICATED THE RECORD.
WHETHER THE LOWER COURT ERRED IN FINDING NO DUE PROCESS VIOLATION WHERE 2,484 DAYS ELAPSED BETWEEN THE ADJOURNMENT OF APPELLANT'S TRIAL AND COMPLETION OF ARTICLE 66, UCMJ, REVIEW, INCLUDING 734 DAYS IN PANEL.
United States v. Allende, __ M.J. ___, No. 06-0908/NA (C.A.A.F. Sept. 24, 2007).
CAAF also granted review of two issues in United States v. Greatting, __ M.J. ___, No. 07-0575/MC (C.A.A.F. 2007). The Navy-Marine Corps Court provides us with this overview of the case:
At the time of the offenses, the appellant was a military policeman and a staff sergeant in the Marine Corps. He was the Staff Noncommissioned Officer-in-Charge of the K9 section for Marine Corps Base Camp Pendleton, with up to 17 dogs and 19 Marines under his supervision. He was responsible for ensuring that dogs and dog handlers were properly trained, that proper records of the training were kept, and that the kennels were run according to U.S. Marine Corps and U.S. Navy standards.
The appellant was convicted of conspiring with subordinates to not properly train the dogs, to conceal unauthorized dogs in the kennels, to make and submit false training records for the dogs, and to steal food and kennel services that belonged to the Government.
United States v. Greatting, No. NMCCA 200401945, slip op. at 7 (N-M. Ct. Crim. App. March 29, 2007).
Before trying SSgt Greatting, Judge Chester had presided over the trial of four companion cases. Id., slip op. at 2. During voir dire, Judge Chester said that he had discussed the accused's companion cases with the relevant staff judge advocate and possibly the deputy staff judge advocate. Judge Chester told one or both of them that, with respect to the case of one of SSgt Greatting's alleged co-actors who was also a staff sergeant, "I thought they sold the case too low given his culpability, his admissions in the Court, given the severity of his conduct, and the repercussions of his conduct on the junior Marines that were involved in the section, the security of this installation." Id. at 3. The civilian defense counsel challenged Judge Chester for cause, but Judge Chester denied the challenge. Id., slip op. at 3-4. NMCCA rejected Appellant's argument that Judge Chester erred by remaining on the case. Id., slip op. at 4-6. CAAF granted review of the following two issues:
WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY FAILING TO RECUSE HIMSELF AFTER HE PRESIDED OVER FOUR COMPANION CASES AND WHEN HE PROVIDED SENTENCING ADVICE TO THE STAFF JUDGE ADVOCATE REGARDING THE FACTS ASSOCIATED WITH APPELLANT'S COURT-MARTIAL.
WHETHER THE LOWER COURT ERRED BY FAILING TO DISAPPROVE THE BAD-CONDUCT DISCHARGE WHEN SUCH RELIEF MIGHT HAVE REMEDIED THE VIOLATION OF APPELLANT'S RIGHT TO SPEEDY POST-TRIAL PROCESSING.
This month's issue of The Army Lawyer contains Volume I of the symposium, covering crimes and defenses, the Fifth Amendment, and evidence. This issue also contains an article on instructions co-authored by two sitting Army trial judges. Volume II of the symposium will appear in the next edition of The Army Lawyer, and will contain articles on the Fourth Amendment, the Sixth Amendment, pleas and pretrial procedures, sentencing and post-trial, professional responsibility, speedy trial and pretrial restraint, and unlawful command influence.
Monday, September 24, 2007
Probably the most significant is the change to Section 0151a, which now requires the convening authority to act on a case not more than 120 days after adjournment. Section 0151(a)(1) now provides, in part: "In all cases the convening authority or other person authorized to act shall act in a case as soon as possible, and not more than 120 days after adjournment of the court-martial." Section 0151(a)(4) also imposes a reporting requirement where this deadline isn't met:
In any case where the convening authority fails to take action within 120 days of adjournment of the court-martial, the convening authority shall report, in writing, signed personally by the convening authority, this fact and the reasons why the action was not taken to OJAG (Code 20) or to the Commandant of the Marine Corps (JAM), as appropriate, and append a copy of the explanation to the record of trial.
In another change affecting court-martial practice, Section 0131b(4)(d) is revised to enlarge the pool of counsel eligible to be IMCed by changing the geographic non-availability range from 100 miles from the site of trial to 500 miles from the site of trial. (Note that under both the old rule and the new rule, a counsel who is beyond that geographic limit is not considered unavailable due to distance if the counsel is within the same judicial circuit.)
Several of the JAGMAN's NJP provisions were revised. For example, the summary of revisions tells us that in Section Ol08c, "Additional language defines the term 'attached to or embarked in a vessel' as it relates to the right to demand trial by court-martial and provides further guidance on this subject." This section, which construes the NJP refusal right's vessel exception, now provides:
(1) For purposes of this section, the term "attached to or embarked in a vessel" means that the person is assigned or attached via written or oral orders, either permanent or temporary, to a vessel, or is on board for passage, or is assigned or attached to an embarked staff, unit, detachment, squadron, team, air group, or other regular organized body. The orders may apply individually to the person, or they may apply to the unit of which the person is a member.
(2) No one may be ordered to a vessel solely for the purpose of limiting the ability to demand trial by court-martial in lieu of nonjudicial punishment.
In the "technology is good" department, Section OllOd offers alternatives to the accused's personal appearance at NJP. The section provides:
Ordinarily, before nonjudicial punishment may be imposed, the service member shall be entitled to appear personally before the authority imposing nonjudicial punishment. However, when personal appearance is prevented by the unavailability of the nonjudicial punishment authority, or by extraordinary circumstances, the nonjudicial punishment proceedings may be conducted telephonically, via video teleconference, or other similar remote means which provide for two-way voice communication. These alternatives are in addition to those already provided for in paragraph 4 (c) of Part V, MCM. The service member shall be notified in writing prior to the imposition of nonjudicial punishment of the circumstances warranting an alternative to personal appearance.
If it is too hard for the Navy to post the 2005 Manual itself, it can post a link to the Coast Guard's "Military Justice Practice Aids" page, which does provide a convenient link to the 2005 MCM.
While I know this news is a bit David Lat-ish (for those that don't know Lat, check out the best legal gossip at AboveTheLaw.com), CAAFlog's recent coverage of Lt. Gen. Mattis' letter declaring certain participants in the Haditha incident "innocent" entitles him to coverage here. Lt. Gen. Jim "Mad Dog" Mattis will be played by Harrison Ford in the forthcoming screen adaptation of the book "No True Glory: The Battle for Fallujah," see article here. While I hope that Ford's presence does not signal an anti-military bent, Ford spoke out against U.S. policies in Iraq, the book from which the film is adapted was a thoroughly researched and well received account of the first Battle for Fallujah by former Asst. Sec'y of Defense (Reagan) Bing West. Since West and his son are writing the screenplay, I would hope it will be similar in quality to the excellent adaptation of Mark Bowden's book "Black Hawk Down," which also featured early drafts by the author, Mark Bowden.
By the way, the Haditha prosecution appears to be narrowed to four individuals (Lt. Col. Jeffrey R. Chessani, 1st Lt. Andrew A. Grayson, Staff Sgt. Frank D. Wuterich and Lance Cpl. Stephen B. Tatum). Mattis' recent grant of immunity, and dismissal of all charges, against Capt. McConnell--the company commander (Devil Dogs correct me if I read that wrong)--opened the door to potentially important testimony in the remaining cases.
Lt. Gen. Mattis was also recently nominated to head
Jiffy Pop Joint Forces Command (JFCOM) in Norfolk, VA. BZ, General. I wonder how that will affect the prosecutions when (?) Mattis steps down at I MEF?
Friday, September 21, 2007
I have such tremendous respect for all of our servicemembers who go in harm's way, and Marcus headed toward a lot of potential harm.
Late tomorrow night, which also happens to be the first anniversary of CAAFlog, Marcus and I will be in downtown Annapolis celebrating. If any of you see us, stop by and have a drink with our returning hero. God speed, Marcus!
Thursday, September 20, 2007
The Navy-Marine Corps Appellate Government Division is (of course) arguing that NMCCA has no power to issue a writ in a summary court-martial case, citing among other authorities Clinton v. Goldsmith, 526 U.S. 529, 534 (1999) (though Appellate Government erroneously cited that decision as United States v. Goldsmith).
But there's a huge different between Goldsmith and Olson. The order dropping Major Goldsmith from the rolls could NEVER fall within CAAF's appellate jurisdiction, but any ultimate summary court-martial conviction of 1stSgt Olson could. As Eugene Fidell the Sagacious sagaciously explains in his invaluable Guide to the Rules of Practice and Procedures for the United States Court of Appeals for the Armed Forces 20, 27 (12th ed. 2006):
The Court’s jurisdiction over "nonreviewable" (subjurisdictional) courts-martial (i.e., general and special courts-martial in which there is no punitive discharge and summary courts-martial, none of which are subject to automatic review by a Court of Criminal Appeals) changed dramatically in 1989. Now, any such case that is referred to a Court of Criminal Appeals may thereafter be certified to the Court of Appeals. UCMJ art. 69(d), 10 U.S.C. § 869(d) (2000).
. . . .
Section 1302 of the National Defense Authorization Act for Fiscal Years 1990 and 1991, Pub. L. No. 101-189, § 1302(a), 103 Stat. 1576 (1989) . . . repealed the sentence of Article 69(a) which had permitted subjurisdictional general courts-martial to be reviewed by the Court of Appeals only pursuant to a second certification. Second, it provided that non-bad-conduct-discharge special courts-martial and summary courts-martial can also be referred to a Court of Criminal Appeals. UCMJ arts. 69(b), (d), 10 U.S.C. § 869(b), (d) (2000). Such cases are therefore now also potentially subject to review by the Court of Appeals either by certificate for review or on petition by the accused. Congress's view in enacting this legislation was that "[t]he purposes of the [Code] would be better served if such review were conducted under a jurisdictional statute as opposed to the ad hoc procedures of the All Writs Act." S. Rep. No. 101-81, at 173 (1989).
. . . .
The nettlesome area of the Court’s jurisdiction was much narrowed by the 1989 amendment to Article 69, discussed above. By subjecting subjurisdictional courts-martial to the prospect of referral to a Court of [Criminal Appeals], Congress brought them within the Court of Appeals’ potential appellate jurisdiction and hence seemingly within its reach under the All Writs Act, see FTC v. Dean Foods Co., 384 U.S. 597, 603-04 (1966), although the language quoted above from the Senate Report suggests that expansion of access to the Courts of [Criminal Appeals] and Court of Appeals was intended to reduce reliance on the extraordinary writ process. S. Rep. No. 101-81, at 173 (1989).
I see that Olson is pending before Panel No. 3. Anyone out there know which judges are on that panel?
Meanwhile, the DAD duo have had response dates assigned: a response in Foerster, No. 07-359, is due by 18 October while a response in Sanchez, No. 07-356, is due by 17 October.
Wednesday, September 19, 2007
The advent of blogs has affected the legal profession on all fronts. From a business development perspective, there is a hazy intersection between legal commentary and law firm marketing. In practice, clients are often faced with issues ranging from malicious posts from disgruntled customers and competitors, to striking a balance between an employee’s freedom of expression, and inappropriate remarks that might be identified as that of the employer.
This program will look at the development, content, and marketing of lawyer blogs, including appropriate topics, ideas for posts, participation in blogging communities, and optimizing blogs for search engines. Ethical considerations in regard to the rules of professional responsibility will be examined, with specific focus on Sections 7.1-7.5 of the ABA Model Rules of Professional Conduct.
In addition, the program will address:
Business advantages to blogging
Using a blog to complement other law firm business initiatives
Understanding legal issues related to blogging that are affecting your clients
I wish I could participate, but I have a day job and the conference runs from 1300 to 1430 East Coast time. The good news is that two weeks after the conference, a recording will be available for purchase.
Speaking of my day job, I am reevaluating my participation on this blog because I now practice before two of the courts whose case law we routinely discuss. Is the duty of loyalty to one's client likely to result in circumscribed candor when discussing cases? What are the ethics of discussing one's own cases on a blog? You may remember that back in March, one anonymous commentator argued:
This blog seems to constantly use the bait and switch approach to swooningly praise these Navy and Marine (and Court of Appeals) judges and wax over the statistical unlikelihood that the judges are reading this site for routine rulings, then throwing topics in front of the judges that are constantly under their consideration and which you wish would be found more frequently in your favor. Doesn't this verge dangerously close to attempting to influence the judges and also near the ABA Model Rule 3.5 ex parte communications (even if the cases aren't ongoing, there must be motions for oral argument that you all are frustrated over?).
At the time, I was able to respond: "I haven't practiced before either NMCCA or CAAF since 2003, so I don't think I could engage in 'ex parte' communication as that term is typically used." But now I do practice in front of military courts. The other day Sacramentum discussed a case on which I'm currently working. I disagreed with Sacramentum's take on the case (I know, shocking!), but I haven't posted about it due to a certain unease over writing publicly about an on-going case in which I am a counsel.
I'll be very interested to hear (in two weeks) whether the participants in tomorrow's teleconference address these and similar topics. Do any of you have advice?
An anonymous commentator to yesterday's post on the Sanchez cert petition provides this helpful information:
In Sanchez, the QP was:
Whether the standard of appellate review for the admission of expert testimony at a criminal trial should be de novo in light of: (1) empirical studies suggesting that trial judges do not have the background to adequately rule on complicated issues of expert testimony; (2) the highly controversial and evolving nature of expert testimony commonly admitted at criminal proceedings; (3) the persuasiveness of expert testimony upon a lay juror; (4) the unequal access to “shaky but admissible” expert testimony for a criminal defendant; and (5) the unique concerns of a criminal trial arising from the Due Process Clause of the Fifth Amendment.
In Foerster, CPT Nathan Bankson framed the issue as:
Whether the Court of Appeals for the Armed Forces properly held that an affidavit prepared and sworn to by the victim of a crime and relied upon by the government to convict petitioner did not violate petitioner’s Sixth Amendment right to confrontation because the victim’s affidavit was not testimonial and also properly admissible as a business record under Military Rule of Evidence 803(6).
The bill that the article discusses appears to be S. 674, sponsored by Senator Obama and co-sponsored by Senators Durbin and Whitehouse. The bill has been languishing in the Senate Armed Services Committee since February. Section 7 of the legislation includes the following proposed amendment of MEJA and proposed "sense of Congress":
(a) Clarification of Military Extraterritorial Jurisdiction Act-
(1) INCLUSION OF CONTRACTORS- Subsection (a) of section 3261 of title 18, United States Code, is amended--
(A) by striking `or' at the end of paragraph (1);
(B) by striking the comma at the end of paragraph (2) and inserting `; or'; and
(C) by inserting after paragraph (2) the following:
`(3) while employed under a contract (or subcontract at any tier) awarded by any department or agency of the United States Government, where the work under such contract is carried out in a region outside the United States in which the Armed Forces are conducting a contingency operation,'.
(2) DEFINITION- Section 3267 of title 18, United States Code, is amended by adding at the end the following:
`(5) The term `contingency operation' has the meaning given that term in section 101(a)(13) of title 10.'.
(b) Sense of Congress on Investigation and Prosecution of Abuses by Private Security Contractors and Others- It is the sense of Congress that--
(1) if there is probable cause to believe that an individual assigned to perform private security functions under a covered contract, any other contractor personnel, or any contractor has violated section 3261(a) of title 18, United States Code, except in situations in which the individual is prosecuted under chapter 47 of title 10, United States Code (the Uniform Code of Military Justice), or under other law, the Department of Defense should use the authority provided in section 3262 of title 18, United States Code, to arrest and detain such individual. personnel, or contractor and transfer such individual, personnel, or contractor to civilian authorities for prosecution; and
(2) the Secretary of Defense should issue guidance, as soon as possible after the date of the enactment of this Act, on how the amendment made by section 552 of the John Warner National Defense Authorization Act of 2007 (Public Law 109-364; 120 Stat. 2217) to section 802(a)(10) of title 10, United States Code (article 2(a)(10) of the Uniform Code of Military Justice), will be implemented.
Section 8 would require the FBI to establish Theater Investigative Units that would
"be responsible for investigating allegations of criminal misconduct under section 3261 of title 18, United States Code, by contract personnel."
Representative Price's proposed H.R. 2740, which includes similar provisions, has been reported out of the House Judiciary Committee.
Tuesday, September 18, 2007
If there are any Army appellate lurkers out there, would you please share the Q.P. with us?
In other SCOTUS news, the S.G. has waived his right to respond to the three Air Force cert petitions docketed last week. Tippit v. United States, No. 07-318; Chapman v. United States, No. 07-317; Erickson v. United States, No. 07-316.
This year's long conference will be this coming Monday, when the Supremes will almost certainly deny their first three military cert petitions of the year: Monette v. United States, No. 07-5623; Phillips v. United States, No. 07-5716; and Taylor v. United States, No. 07-13.
Saturday, September 15, 2007
Friday, September 14, 2007
On appeal, NMCCA held that Harris's rights were further violated because he "was placed under significant maximum custody-type restraints based solely on the seriousness of the charges." Id., slip op. at 3. To remedy that error, NMCCA ordered that Harris receive an extra 186 days of confinement credit. Uh, but wait a second. As we have seen, Harris was released from confinement almost three years ago. Was that sentence relief meaningful?
CAAF would like to find out. Today's Daily Journal update included the following granted issue:
WHETHER THE LOWER COURT ERRED BY FAILING TO AWARD APPELLANT ADDITIONAL CONFINEMENT CREDIT OR OTHER MEANINGFUL RELIEF DUE TO THE UNDULY RIGOROUS BRIG CONDITIONS AND THE IMPROPER DENIAL OF NECESSARY MEDICAL CARE.
United States v. Harris, __ M.J. ___, No. 07-0508/MC (C.A.A.F. Sept. 13, 2007).
The issue is somewhat perplexing in that it seems to combine what are really two separate issues: (1) Is Harris entitled to some additional form of meaningful sentence relief where NMCCA sets aside 186 days of confinement that he has already served; and (2) Did NMCCA err in footnote 1 of its opinion where it concluded, "After a detailed review of the record, including all exhibits and pleadings, we conclude that the military judge's findings, that the appellant was not denied appropriate and necessary medical care and there there was no intent to punish the appellant while in pretrial confinement, are fully supported"?
Please Shepardize United States v. Usry, 9 M.J. 701 (N.C.M.R. 1980). What is the first thing you see? Right, a yellow triangle at the top. Then what is the very first thing you see under "Citing Decisions"? "Criticized by: United States v. Baier, 60 M.J. 382, 2005 CAAF LEXIS 1 (C.A.A.F. 2005) 60 M.J. 382 p.385." If you were a CCA judge, don't you think you would look up a CAAF case criticizing Usry before citing it? Of course you would. So how can it be that Judge Per Curiam of the Navy-Marine Corps Court relied on Usry in United States v. Mitchell, No. NMCCA 200600998 (N-M. Ct. Crim. App. March 29, 2007) (per curiam)? (Mitchell is another case that is available on NKO, but not on NMCCA's web site, so I've reproduced it on CAAFlog's web page.) My question isn't a rhetorical one. Are some NMCCA decisions issued without Shepardizing the authorities they cite?
If so, at least we know that CAAF Shepardizes the opinions that the CCAs cite. Just as CAAF summarily reversed NMCCA's decision in United States v. Ryan, No. NMCCA 200401577 (N-M. Ct. Crim. App. March 29, 2007), for relying on the discredited Usry analysis, now CAAF has summarily reversed Mitchell -- which NMCCA decided on the same day as Ryan. United States v. Mitchell, __ M.J. ___, No. 07-0602/NA (C.A.A.F. Sept. 13, 2007) (summary disposition). When we discussed Ryan here, a perceptive commentator noted that NMCCA had made the same mistake in many cases. So Ryan and Mitchell are probably the first in a longer line of summary reversals.
Wednesday, September 12, 2007
CAAF's decision in Erickson, of course, resolved the long-running legal dispute over whether it is plain error for a prosecutor's sentencing argument to analogize the accused to Hitler, Saddam Hussein and Osama bin Laden while also describing the accused as a demon belonging in hell. United States v. Erickson, 65 M.J. 221 (C.A.A.F. 2007). CAAF decided Chapman by summarily affirming on 26 June. Tippit is a speedy trial case focusing on the consequences of a CA withdrawing charges rather than dismissing them. United States v. Tippit, 65 M.J. 69 (C.A.A.F. 2007).
Now the bad news: the USNI has asked me to announce that its bookstore in Preble Hall has been permanently closed. I guess that ever since I mentioned the bookstore over the weekend, impatient CAAFlog readers have been storming Preble Hall in search of the latest edition of Proceedings. CAAFlog regrets the error and hopes that no visitors to the United States Naval Academy Museum (which I am assuming still is in Preble Hall) were inconvenienced by the throng of Proceedings seekers.
Tuesday, September 11, 2007
WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN GRANTING THE DEFENSE MOTION TO SUPPRESS ALL EVIDENCE RESULTING FROM APPELLEE’S URINALYSIS TEST.
United States v. Miller, __ M.J. ___, No. 07-5004/AF (C.A.A.F. Sept. 7, 2007).
The Air Force Court's opinion, which rejected a government appeal under Article 62, is available here. United States v. Miller, No. Misc. Dkt. 2007-02 (A.F. Ct. Crim. App. June 25, 2007).
WHETHER THE MILITARY JUDGE ERRED BY ACCEPTING APPELLANT'S PLEA TO UNPREMEDITATED MURDER UNDER ARTICLE 118(3), UCMJ, WHERE EVIDENCE WAS INTRODUCED BY BOTH APPELLANT AND AN EXPERT THAT, AT THE TIME OF THE OFFENSE, APPELLANT DID NOT KNOW THAT HIS ACTIONS WOULD CAUSE BODILY HARM OR DEATH.
WHETHER APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL WHERE HIS COUNSEL ADVISED HIM TO PLEAD GUILTY, IMPROVIDENTLY AND AGAINST HIS WISHES.
In today's daily journal update, CAAF summarily said "no" and "no." Well, actually CAAF said, "On further consideration of the granted issues, 65 M.J. 276 (C.A.A.F. 2007), it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed." United States v. White, __ M.J. ___, No. 07-0067/MC (C.A.A.F. Sept. 10, 2007).
The lower court's opinion, which addresses both of the granted issues as well as granting relief for illegal pretrial punishment, is available here. United States v. White, No. NMCCA 200200803 (N-M. Ct. Crim. App. Aug. 31, 2006).
Can anyone from NAMARA tell us (or theorize about) what happened?
Monday, September 10, 2007
From October through December, the Coast Guard has one argument at CAAF, the Air Force seven, the Army nine, and the Navy-Marine Corps thirteen.
Sunday, September 09, 2007
Saturday, September 08, 2007
The issue includes many items of interest to military justice practitioners. Page 16 offers court reporters' trial advocacy tips. On page 27, an article by Captain John W. Bellflower applies warfighting principles to litigation. Page 32 provides "Military Justice Pointers," including a discussion of one fascinating case in which the Air Force Court provided relief due to authentication of an ROT containing an important error. (Here's a link to that unpublished opinion itself. United States v. Polinard, No. ACM 35806 (f rev) (A.F. Ct. Crim. App. July 31, 2006).)
There is also an article of general interest to military lawyers concerning Article 6 and subsequent legislation to emphasize the Judge Advocate General of the Air Force's role as the legal adviser to the Secretary of the Air Force and as head of the Air Force JAG Corps. Major John C. Johnson, The Air Force Advocate: An Independent Legal Advisor, Reporter, Summer 2007, at 18.
I also found particularly interesting two "Ask the Expert" notes. One, on page 6, discusses the Secretary of the Air Force's "Revised Interim Guidelines Concerning Free Exercise of Religion in the Air Force" and subsequent congressional action concerning those interim guidelines. The other, on page 7, discusses the current state of the Anthrax Vaccine Immunization Program and provides this link to Air Force guidance on the subject: https://www.a3a5.hq.af.mil/a3s/a3sc/CCBRN_resource/biological/anthrax/index.asp. Unfortunately, it doesn't appear that the link is operative from a civilian computer--a recurring problem when attempting to access Air Force regulations, including some (like the Air Force's rules of professional conduct) to which civilian counsel will often require access.
Friday, September 07, 2007
Here is the first, and most interesting, issue:
WHETHER THE EVIDENCE WAS LEGALLY SUFFICIENT TO SUPPORT A DETERMINATION THAT APPELLANT'S STATEMENTS TO AN UNDERCOVER NCIS AGENT ON THE INTERNET WERE EITHER DETRIMENTAL TO GOOD ORDER AND DISCIPLINE OR OF A NATURE TO BRING DISCREDIT UPON THE ARMED FORCES WHEN THE MILITARY NEXUS REFLECTED IN THE RECORD CONSISTED OF APPELLANT'S REFERENCE TO BEING A "US ARMY PARATROOPER," AND HIS STATEMENTS RAISE A SIGNIFICANT ISSUE UNDER THE FIRST AMENDMENT.
United States v. Wilcox, __ M.J. ___, No. 05-0159/AR (C.A.A.F. Sept. 6, 2007).
Sacramentum provides the following helpful synopsis of the facts in Wilcox:
The issue before the court in Wilcox concerns an accused who communicated with an undercover policeman about his pro-white beliefs. Appellant referred the undercover policeman to pro-white activist literature. After remand by CAAF, the ACCA held that "a rational trier of fact could have reasonably determined appellant's statements were anti-government and disloyal, advocated extreme racial intolerance, and, under the circumstances of this case, were prejudicial to good order and discipline and service discrediting." Appellant ended a chat session with the following words: "[B]e white, act white, think white,[ and] may GOD be with you." The sole nexus to the military is the fact that in his AOL profile, the appellant claimed he was a U.S. Army paratrooper and a pro-white activist.
CAAF had previously reviewed and remanded PFC Wilcox's case. United States v. Wilcox, 62 M.J. 456, 457 (C.A.A.F. 2006). That remand produced this opinion from ACCA: United States v. Wilcox, No. ARMY 20000876 (A. Ct. Crim. App. Dec. 22, 2006).
Here are the other two issues that CAAF granted yesterday:
WHETHER APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO A PUBLIC TRIAL WHEN THE MILITARY JUDGE EXCLUDED THE PUBLIC FROM THE COURTROOM WHEN THE VICTIM, BP, TESTIFIED ON THE MERITS.
United States v. Ortiz, __ M.J. ___, No. 07-0555/AR (C.A.A.F. Sept. 6, 2007).
WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY ACCEPTING APPELLANT'S GUILTY PLEAS TO SPECIFICATIONS 1 AND 2 OF CHARGE I, AGGRAVATED ASSAULT, WHERE APPELLANT DID NOT ADMIT FACTS THAT OBJECTIVELY SUPPORTED HIS PLEAS DURING THE PROVIDENCE INQUIRY, AND INTRODUCED EVIDENCE THAT IS SUBSTANTIALLY INCONSISTENT WITH HIS PLEAS DURING PRESENTENCING.
United States v. Dacus, __ M.J. ___, No. 07-0612/AR (C.A.A.F. Sept. 6, 2007).
Sacramentum reports that the ACCA web site doesn't include the opinions below in either Ortiz or Dacus.
While Davis isn't yet on NMCCA's public web site, it was uploaded to NKO today, and we have put it on the CAAFlog.com web site here.
Despite ruling that the parties should have acknowledged that they were resentencing LCDR Davis in 2006, not 1995, NMCCA held that appellant had invited the error and therefore "may not now complain he was harmed by it." Id., slip op. at 10. The court also declined to find plain error. Id.
Finally, while this was a post-Moreno case that blew the 120-day deadline for the CA's action, NMCCA balances the four post-trial delay factors and finds that LCDR Davis's due process rights weren't violated.
Thursday, September 06, 2007
Firs the headline news -- the highly regarded LeEllen Coacher of Judge Stucky's chambers reported that Judge Stucky and every lawyer in his chambers HATES the Garnerian style of putting citations of authority in footnotes rather than in the main text. Allow me to quote her directly: "We hate them with a passion."
Okay, onto the other news.
Mr. DeCicco indicated that the trend of the future is 15-minute arguments. He said the judges like the 15-minute time limit and when the next batch of arguments is announced, the majority will be 15-minute arguments.
Deputy Chief Clerk Dave Anderson emphasized the importance of applying the Rule 21(b)(5) factors to show good cause in supplements to petitions.
More than one presenter emphasized Rule 37(c)(4)'s prohibition against incorporation by reference.
More than one presenter warned against overly argumentative issue statements.
Mr. DeCicco emphasized that many court filings are sloppy -- with incorrect gender pronouns, cites to the wrong UCMJ article and, in some Navy-Marine Corps cases, the wrong armed force in the caption.
Mr. DeCicco emphasized the importance in motion practice of explaining why the requested relief is appropriate.
He also noted that a number of filings have been received out of time lately. He indicated that the court is growing frustrated with this trend. While he didn't expressly say this, he hinted that the historic paternalistic practice of not visiting the attorney's sins on the clients may be in danger.
More than one presenter warned against ad hominem attacks in briefs or dismissive adjectives, such as referring to the opponent's "foolish" argument.
The session highlighted the following common errors:
(1) using proportional type (such as Times New Roman) instead of courier or courier new;
(2) failing to put counsel's bar number on the filing;
(3) not attaching the CCA's opinion to the supplement;
(4) not observing the page/word count limits;
(5) simply attaching an affidavit to a filing (the so-called "staple rule") instead of filing a motion to attach;
(6) including a motion within a brief rather than filing it as a separate document;
(7) putting the appellant's SSN on the supplement -- because supps and briefs are given to LEXIS and WESTLAW and enter the public domain, the appellant's SSN should not appear on anything but the initial petition;
(8) putting the wrong docket number on a filing;
(9) filing past the deadline;
(9) drafting overly long, overly argumentative, overly repetitive, and unprofessional issue statements.
Mr. DeCicco also explained that grants of review often come in bunches because in some instances the judges decide whether to grant or deny in conference. For example, he indicated that yesterday there was a judges' conference, and today there were three orders granting review. So look for those in tomorrow's update to the daily journal.
Wednesday, September 05, 2007
Tuesday, September 04, 2007
In today's daily journal update, CAAF grants Stoeser's petition for the apparent purpose of spanking all those below who approved and affirmed a reprimand in Stoeser's case even though a reprimand wasn't part of the adjudged sentence. United States v. Stoeser, __ M.J. ___, No. 07-0344/AR (C.A.A.F. Aug. 31, 2007). This is all the more embarrassing because ACCA had previously set aside the first CA's action (which also approved the apparently nonexistent reprimand) on other grounds and sent it back for a second CA's action. United States v. Stoeser, No. ARMY 20030596 (A. Ct. Crim. App. May 31, 2006).
So now the door is open for Stoeser to file a cert petition. Is this a rational system, where a scrivener's error leads to a right to seek cert -- a right that is sometimes denied to those raising serious issues in their supplements?
The passage of H.R. 3174 would bring greater rationality to the system. Of course, even without a legislative fix, CAAF already has the ability to drastically improve the current system. Why shouldn't CAAF simply adopt a policy of granting every case in which the supp raises an issue? CAAF could then, if it wished, summarily affirm in many of the cases where it would deny the petition today. But then every servicemember seeking review of an issue arising from his or her court-martial would have a civilian court rule on the merits of the case -- and could, like any other defendant in any other criminal proceeding in the United States, seek cert.
Monday, September 03, 2007
1. Air Force Law Review
2. Army Lawyer
3. JAG Magazine
4. Journal of Military and Veteran Law [on-line journal by William & Mary Marshall Wythe School of Law' Military Law Society; more on this revived journal's first piece later this week]
5. Military Law Review
6. Naval Law Review
7. The Reporter