ACCA rejects religious liberties defense to conviction for refusing to go to Iraq

ACCA has posted a lengthy published opinion on its web site. United States v. Webster, __ M.J. ___, No. ARMY 20040588 (A. Ct. Crim. App. Jan. 30, 2008). Here's a link.

I am just now starting to review it, but it looks interesting. The opinion provides this overview:

First, appellant contends he "did not freely plead guilty because the Islamic scholars he consulted prohibited him from serving in Iraq where he could kill fellow Muslims." We find appellant's plea knowing, voluntary, and provident. Second, appellant asserts the Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb [hereinafter RFRA], "provides precedent for invalidating" his guilty plea. We will review appellant's RFRA claim as an assertion that the Army infringed upon his First Amendment right to free exercise of religion by requiring him to deploy in support of Operation Iraqi Freedom. Assuming arguendo the Army substantially burdened appellant's exercise of religion, we nevertheless uphold the government action because the Army acted in furtherance of a compelling government interest and used the least restrictive means in furthering that interest. See Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418, 423 (2006).

Id., slip op. at 2.

Almejo distributed for conference

Almejo v. United States, No. 07-955, the military cert petition that doesn't fall within the Supremes' statutory cert jurisdiction, has been distributed for the 15 February conference. That means it will be on the 19 February order list (18 Feb is the Presidents' Day holiday) as a cert denial. We previously discussed the cert petition here and here.

CCAs on the road

The Air Force Court of Criminal Appeals will hear oral argument tomorrow at the University of Louisville's Louis D. Brandeis School of Law. Here's a link to an announcement about the event.

On 13 February, the Navy-Marine Corps Court of Criminal Appeals will hold an en banc rehearing in United States v. Weston at 1300 at the Georgetown University Law Center. We previously discussed Weston, which is a competing consent search and seizure case, here. The panel decision was a 3-0 win for Staff Sergeant Weston. Here's a link to the panel's decision. United States v. Weston, 65 M.J. 774 (N-M. Ct. Crim. App. 2007)

US v. Whiteside: case closed?

According to the Washington Post, the disturbing case of United States v. Whiteside may finally be drawing to a close. The article isn't a model of clarity, but it appears the convening authority declined to refer the charges to trial.

The Whiteside case was debated extensively on CAAFlog last month. A quick refresher: while deployed to Camp Cropper in December 2006, 1st Lt Elizabeth Whiteside allegedly pointed a loaded weapon at a major. She made statements to the effect that she wanted to kill her fellow soldiers, fired two rounds into the ceiling, and then shot herself in the stomach. She was eventually charged with, inter alia, assault on a superior commissioned officer, communcating a threat, wrongful discharge of a firearm, and malingering.

Earlier this week, prior to receiving word of the disposition of the pending charges, Lt Whiteside again attempted suicide, downing "dozens" of antidepressants and other pills. She is reported to be in stable condition.

No word on whether she will face new charges of malingering for this latest attempt.

JAGMAG is back -- and military justicier than ever

There's a new JAG Magazine in the virtual newstands, available here. This issue has several items that will interest military justice practitioners. The cover article is about the Naval Justice School. Daniel Webster said of Dartmouth, "It is, Sir, as I have said, a small college. And yet there are those who love it!" Peroration, The Dartmouth College Case (Mar. 10, 1818). That's how I feel about the Naval Justice School. Hanging proudly on my office wall is my "Profeesor of Law Emeritus" certificate--the traditional memento for departing faculty members. So I was particularly pleased when the cover article wasted no time in claiming bragging rights: "Naval Justice School (NJS), the oldest of the three JAG schools, began in Port Hueneme, Calif., in 1942 and relocated to Newport, R.I., in 1950." (Perhaps detracting from the luster, though, the article is dated January 30, 2007. Should that read "2008," or did it take a year to get it online?) The Naval Justice School schedule, on pages 8 and 9, includes several courses for military justice practitioners, including Computer Crimes (Newport, 19-23 May), Defending Complex Cases (Newport, 18-22 Aug), Defense Trial Training (Newport, 12-16 May), Litigating National Security Cases (Andrews AFB, 29 Apr - 1 May), Prosecuting Complex Cases (Newport, 11-15 Aug), Effective Courtroom Communication (Norfolk, 29 Oct - 2 Nov), and Effective Courtroom Communication (San Diego, 28 Jan - 1 Feb).

The issue also includes CDR Pete Schmid's article, How To Guide for Litigating Classified Information Cases on pages 16-17.

Military justice appellate practitioners will be interested in an article about four NMCCA judges sitting on the Court of Military Commission review on pages 18-19.

Grover The Magnificent . . . and Other New CAAF Grants

CAAF granted review in two new cases today. The first, a case involving the Army's prohibition on the use of doctors [and others] on court-martial panels in AR 27-10, was predicted by our house psychic, Grover the Magnificent, here:

United States v. Bartlett, __ M.J. ___, No. 07-0636/AR (C.A.A.F. Jan. 29, 2008): WHETHER THE SECRETARY OF THE ARMY'S DECISION TO EXEMPT FROM COURT-MARTIAL SERVICE OFFICERS OF THE SPECIAL BRANCHES NAMED IN AR 27-10 CONTRADICTS ARTICLE 25 (d) (2), UCMJ, WHICH REQUIRES A CONVENING AUTHORITY TO SELECT COURT-MARTIAL MEMBERS BASED UPON AGE, EDUCATION, TRAINING, EXPERIENCE, LENGTH OF SERVICE, AND JUDICIAL TEMPERAMENT.

As anyone who has been on the defense, or government, side of a court-martial knows, doctors are always portrayed as the most defense friendly members. I wonder if anyone has argued that pop psychology in a brief in Bartlett?

The other discusses evidence admitted as a result of an illegal search of a government laptop, and relates to our discussion of military computer policy:

United States v. Rutherford, __ M.J. ___, No. 07-0795/AF (C.A.A.F. Jan. 29, 2008): WHETHER THE MILITARY JUDGE ERRED BY ADMITTING EVIDENCE AT TRIAL THAT WAS OBTAINED AS A DIRECT RESULT OF AN ILLEGAL SEARCH OF APPELLANT'S GOVERNMENT ISSUED LAPTOP COMPUTER.

Deputy Sec Def Meeting - Will DoD ever issue regulations limiting the new Art. 2(a)(10), UCMJ?

As reported at the Wall Street Journal.com, Deputy Sec Def Gordon England and Deputy Sec State John Negroponte called a meeting for Wednesday, Feb. 6, 2008 (or at least that is how I read it), with top executives from private security companies. The article states that the agenda for the meeting will include, "discussions of how changes in contract management, the political environment in Iraq, the 2008 defense bill and legal accountability could affect the ability of private security companies to do their jobs." A DoD official said the purpose of the meeting was to "prove that we are the good guys and that we do care."

Hopefully the legal accountability portion of the meeting includes guidance for contractors that can be released to the field on implementation and withholding of authority under Art. 2(a)(10), UCMJ, as previously discussed on CAAFlog, here, here, here, and . . . well there are a few more. Stay tuned.

Three stars for three wise men enacted

The President yesterday signed the National Defense Authorization Act for Fiscal Year 2008, which is now Public Law No. 110-181.

The legislation provides that serving Judge Advocates General will serve as three-stars and the legal counsel to the Chairman of the Joint Chiefs of Staff will serve as a one-star. See § 543.

The Act also makes one amendment to the UCMJ. Section 542 amends Article 136 to authorize CAAF judges to administer oaths. So the 2008 Manual for Courts-Martial is already out-of-date. Think we'll see a replacement volume during this decade?

The NDAA includes one other military justice provision, though it isn't codified in the UCMJ. Section 544 requires SECDEF to "prescribe regulations to prohibit the active participation by members of the Armed Forces in a criminal street gang."

Criticism of Article 32 process

NIMJ's web site has posted this Jurist piece by retired Marine Corps judge advocate Neal Puckett recommending reforms to the Article 32 process.

After briefly comparing Article 32s with civilian charging by information or grand jury indictment, Puckett argues that the military system is easy to "manipulate and abuse."

He recommends:

The Art 32 investigation protection against proceeding to trial on baseless charges could be improved by a change to the Manual for Court-Martial (a Presidential Executive Order). The change should require that investigating officer be JAGs except where impracticable and by making the investigating officer’s recommendations binding on the commander in cases where that officer recommends dismissing charges.

He's batting .500. A requirement that where practicable the IO be a judge advocate would improve the system for everyone. But I would not support making the IO's recommendation to dismiss binding on the CA. Why would we trust the judgment of this judge advocate more than that of a general court-martial convening authority acting with the advice of a staff judge advocate? Puckett is concerned about cowardly or politically correct CGs who refer charges for appearance sake. We previously examined here a similar recommendation advanced by Bryan Hayes' article, Strengthening Article 32 to Prevent Politically Motivated Prosecution: Moving Military Justice Back to the Cutting Edge, 19 Regent U.L. Rev. 173 (2006/2007). Hayes would require a military judge to find that an offense is supported by probable cause before it is referred to a general court-martial.

Assuming that there is actually a problem in the current referral process (a question about which I have insufficient information to have an informed opinion), perhaps a better solution would be to amend R.C.M. 907 to authorize the accused post-referral to challenge whether a specification is supported by probable cause. The trial counsel would then have to present sufficient evidence for a prima facie case to the military judge. If the military judge found that the government did not meet its burden, the military judge would dismiss the affected specification or charge without prejudice.

Year of the Rat

A week from this coming Sunday, just a few blocks to the north and west of CAAF's stately courthouse, a parade will usher in the Chinese New Year. And what year will this be? The Year of the Rat.

Of course, rats and lawyers have sometimes been analogized to one another. In his serious -- no, serious isn't the right word -- in his scholarly 2005 book about lawyer jokes, Professor Galanter discusses what he calls the "single most prevalent of all current lawyer jokes." Marc Galanter, Lowering the Bar: Lawyer Jokes & Legal Culture 192 (2005): "Why have research laboratories started using lawyers instead of rats in their experiments? There are three reasons: first, there are more of them; second, the lab assistants don't get attached to them; and third, there are some things a rat just won't do." Id. Professor Galanter also adds what he calls "a wonderful coda" that I hadn't heard before: "One problem, though, is that no one has been able to extrapolate the test results to human beings."

So perhaps it is appropriate that CAAF's Year of the Attorney-Client Relationship, as I previously dubbed this Term, coincides with the Year of the Rat. And today, just as the Year of the Pig is preparing to give way to the Year of the Rat, CAAF issued an order and granted review of a petition that solidifies the 2008 Term as the Year of the Attorney-Client Relationship.

I have previously discussed the Air Force Appellate Government Division's motions to disqualify me and linked to this Air Force Court order rejecting the attempt. Today, using reasoning similar to that of the Air Force Court, CAAF rejected another of the motions to disqualify. CAAF ruled:

On consideration of Appellee's Motion to Disqualify, we note that Appellant is represented by appellate defense counsel qualified under Article 27(b)(1), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 870(a). Nothing in Article 70, UCMJ, 10 U.S.C. § 870 limits the discretion of the Judge Advocate General of the Air Force to offer Appellant the additional services of a civilian appellate defense counsel at government expense. Accordingly, it is, by the Court, this 28th day of January, 2008, ORDERED: That Appellee's Motion to Disqualify is denied.

United States v. Roach, __ M.J. ___, No. 07-0870/AF (C.A.A.F. Jan. 28, 2008) (order). This follows a previous CAAF order summarily rejecting a similar motion. United States v. Miller, __ M.J. ___, No. 07-5004/AF (C.A.A.F. Jan. 7, 2008) (order). Since the Solicitor General obviously won't go to the Supreme Court to argue that an Executive Branch official exceeded his authority by hiring a civilian lawyer to assist judge advocates representing servicemembers before military appellate courts, that would seem to definitively resolve this issue.

CAAF also granted review of two issues in Roach, including one that concerns appellate representation:

I. Whether the lower court erred by deciding Appellant's case in the absence of a substantive submission of Appellant's behalf despite this Court's case law holding that it is "error" for a Court of Criminal Appeals to decide a "case without assistance of counsel" for an appellant. United States v. May, 47 M.J. 478, 482 (C.A.A.F. 1998).

II. Whether the lower court erred by holding: (1) that it was not objectively unreasonable for the appellate defense counsel to fail to file a brief on Appellant's behalf during the 182 days between the expiration of Appellant's briefing deadline and the lower court's decision in Appellant's case; and (2) that Appellant demonstrated no prejudice, despite this Court's case law holding that where appellate counsel "do nothing" on an appellant's behalf, the "appellant has been effective deprived of counsel, and prejudice is presumed." United States v. May, 47 M.J. 478, 482 (C.A.A.F. 1998).

United States v. Roach, __ M.J. ___, No. 07-0870/AF (C.A.A.F. Jan. 28, 2008) (order granting review). [DISCLAIMER: as should be apparent from the earlier portion of this post, I'm one of SrA Roach's counsel.]

Here's a link to the Air Force Court's opinion. United States v. Roach, No. ACM S31143 (A.F. Ct. Crim. App. Sept. 13, 2007).

SG waives response in Almejo

We previously discussed the cert petition in Almejo v. United States, No. 07-955, a case over which the Supremes do not possess statutory cert jurisdiction. On Friday, the S.G. waived his right to respond. See here. So as has happened before, rather than moving to dismiss for lack of jurisdiction, the S.G. has taken the easier path to the same destination.

Mauled by Baier

For the third time since August, CAAF on Friday reversed NMCCA's affirmance of a sentence for using a legally erroneous sentence appropriateness standard. United States v. King, __ M.J. ___, No. 07-0567/MC (C.A.A.F. Jan. 25, 2008). Here is a link to the NMCCA opinion that CAAF reversed in part. United States v. King, No. NMCCA 200500797 (N-M. Ct. Crim. App. Mar. 20, 2007) (per curiam). (The other two opinions were United States v. Mitchell, 65 M.J. 339 (C.A.A.F. 2007) (summary disposition), which we discussed here, and United States v. Ryan, 65 M.J. 328 (C.A.A.F. 2007) (summary disposition), which we discussed here.)

But here's the really odd thing about King: it actually cites the CAAF case that it violates. (Mitchell does as well, but Ryan doesn't.) In United States v. Baier, 60 M.J. 382 (C.A.A.F. 2005), CAAF thwacked NMCCA for applying a legally erroneous sentence appropriateness standard. Here's what NMCCA had said in its Baier opinion: "When reviewing a sentence it is important to consider the sense of justice of the community where the crime was committed which should not be disturbed unless 'the harshness of the sentence is so disproportionate to the crime as to cry out for equalization.'" (quoting United States v. Rojas, 15 M.J. 902, 919 (N.M.C.M.R. 1983)). CAAF also noted that this incorrect language "originated in United States v. Usry, 9 M.J. 701, 704-05 (N.C.M.R. 1980)." Baier, 60 M.J. at 384 n.15.

Yet, in the space of 9 lines, NMCCA's King opinion quoted the very language that Baier rejected, cited Usry, and cited CAAF's opinion in Baier. Here, look:

A sentence should not be disturbed on appeal “unless the harshness of the sentence is so disproportionate as to cry out for sentence equalization.” United States v. Usry, 9 M.J. 701, 704 (N.C.M.R 1980).

After carefully reviewing the entire record, including the testimony of the victims and witnesses, and evidence of the injuries inflicted by the appellant, as well as the appellant’s military record, we conclude that the sentence, including a dishonorable discharge, is appropriate for this offender and his offense. United States v. Baier, 60 M.J. 382 (C.A.A.F. 2005).

King, No. NMCCA 200500797, slip op. at 4.

To quote OMC, how bizarre. Or, to quote CAAF, "the decision of the United States Navy-Marine Corps Court of Criminal Appeals is . . . set aside as to sentence."

To quote Bryan Adams, home again

To quote Led Zepplin, I'm packing my bags for the misty mountains

I'm off to the mountains for the weekend. I don't expect to have Internet access, so I'll probably be offline until Monday. Cheers!

A cryptic reconsideration denial

I need help form our vast army of Army lurkers. Yesterday, CAAF denied the appellant's petition to reconsider CAAF's order of 16 November 2007 in United States v. Elfayoumi. United States v. Elfayoumi, __ M.J. ___, No. 07-0346/AR (C.A.A.F. Jan. 22, 2008).

But CAAF's 16 November order granted review of Elfayoumi's case. CAAF granted review of "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."

Why would the appellant seek reconsideration of that order? My speculation is that at least one additional issue was included in the supp and the appellant asked CAAF to reconsider its denial of one or more additional issues. But that's just a guess. So could one of the Army of One please fill us in?

Surprising briefing order

Early this term, CAAF heard oral argument in United States v. Wilson, No. 06-0870/AR. Wilson was a holdover from last term in which CAAF wanted additional briefing and argument on whether "the defense of mistake of fact as to age [is] available with respect to a charge of sodomy with a child under the age of 16, Article 125." See United States v. Wilson, 65 M.J. 254 (C.A.A.F. 2007) (order).

On Friday, CAAF granted review of the petition in United States v. Rigby, __ M.J. ___, No. 08-0029/AR (C.A.A.F. Jan. 18, 2008). The issue was "WHETHER THE MILITARY JUDGE ERRED WHEN HE FAILED TO GIVE THE REQUESTED MISTAKE OF FACT AS TO AGE INSTRUCTION FOR THE OFFENSE OF SODOMY WITH A CHILD UNDER THE AGE OF SIXTEEN." It's no surprise that CAAF would grant review of that issue in light of the pending Wilson decision. But the final line of the Rigby order did surprise me: "Briefs will be filed under Rule 25." It appears to me that CAAF is essentially ordering the parties to rebrief the Wilson issue, though since Rigby arises from the same service as Wilson, the end product may be little more than a cut-and-paste version of the previously filed briefs. Does anyone have a theory as to why CAAF would order briefs in Rigby?

Perplexing petition

The Supremes yesterday docketed a new military cert petition: United States v. Almejo, No. 07-955. But this is strange -- CAAF denied Petty Officer Almejo's petition for grant of review. United States v. Almejo, __ M.J. ___, No. 07-0237/NA (C.A.A.F. Oct. 18, 2007).

In a sharply worded opinion (as usual, unavailable online but available on NKO; here's a link), the Navy-Marine Corps Court denounced Almejo's first two issues as "frivolous" and the third as "meritless." United States v. Almejo, No. NMCCA 200501051 (N-M. Ct. Crim. App. Nov. 29, 2006) (per curiam). As noted above, CAAF then denied his petition for grant of review.

Almejo then filed a cert petition. Of course, the Supremes have no statutory cert jurisdiction in such a case. "The Supreme Court may not review by a writ of certiorari under this section any action of the Court of Appeals for the Armed Forces in refusing to grant a petition for review." UCMJ art. 67a, 10 U.S.C. § 867a.

Now here's the even stranger part. Almejo is represented by a civilian counsel -- J. Byron Holcomb. Why would a civilian counsel file a cert petition in a case where the Supremes have no jurisdiction? (For that matter, why would any counsel file a cert petition in a case where the Supremes have no jurisdiction?)

Fort Bragg to try three capital courts-martial this summer

Here is an interesting Army Times article reporting that Fort Bragg will try three capital courts-martial this summer. For comparison purposes, that's one more capital case than the entire U.S. Army tried in 1997, 1998, 1999, 2000, 2001, 2002, 2003, 2004, 2005, 2006, and 2007 combined.

This confluence would appear to heighten the importance of resovling the counsel qualification issue that is currently pending before CAAF in the Martinez writ appeal, which we previously discussed here and here. See Martinez v. Henley, __ M.J. ___, Misc. No. 08-8002/AR (C.A.A.F. Nov. 14, 2007).

Three stars for three wise men back on track

Both the House and now the Senate have passed a revised version of the FY 2008 DOD Authorization Act. Here is an Army Times article about the Senate's vote. The President is expected to sign this version, which will give the JAGs a third star. But my understanding is that each JAG will be required to be reconfirmed before putting on the third star. Does anyone have good gouge on whether that understanding is correct?

NIMJ seeks nominations for the Kevin J. Barry Award for Excellence in Military Legal Studies

NIMJ's web site has posted a call for nominations for an award named in honor of a military justice giant: the Kevin J. Barry Award for Excellence in Military Legal Studies.

NIMJ's web site explains:

All articles published in 2007 are eligible. The award will be presented at the Judicial Conference of the U.S. Court of Appeals for the Armed Forces on March 5-6, 2008. Please nominate articles by sending a citation, link (if available), and brief description to Prof. Sean Watts, Creighton University Law School, seanwatts2@creighton.edu. The award winner will be selected by a distinguished prize committee (Prof. Watts (chair), Prof. Diane Marie Amann, Lt Col Paul Kantwill, and Major Mynda Ohman). The deadline for nominations is Feb 11, 2008.

I'm resisting the urge to make a joke at the expense of an eligible article at which I've already taken a couple of shots. But please feel free to fill in your own punchline here.

Pointless publication?

The Army Court has posted a new published opinion on its web site. United States v. Crudup, __ M.J. ___, No. ARMY 20050112 (A. Ct. Crim. App. Jan. 18, 2008).

Crudup appears to stand for two propositions. First, that under a factual scenario almost identical to the Hammon v. Indiana half of Davis v. Washington, 126 S. Ct. 2266, 2274 (2006), a domestic violence victim's statements to police officers identifying the accused as the perpetrator of an already completed battery are testimonial. Of course we didn't need ACCA to tell us that because, as ACCCA itself notes, the Supremes already have. See Crudup, No. ARMY 20050112, slip op. at 5.

The second proposition is that under the particular factual scenario of this case, the error was harmless. It's hard to see how that will be particularly helpful to Army trial judges facing Crawford v. Washington, 541 U.S. 36 (2004), issues in other cases. So why did ACCA publish Crudup? I'm stumped. Theories?

Updated Air Force Administration of Military Justice regulation

An alert reader has called our attention to the 21 December 2007 update of AFI 51-201, which is the Air Force's equivalent of the JAGMAN, AR 27-10, and COMDINST M5810D.

I'm sometimes asked by students for paper topics ideas. Here would be a great one. Compare the protections afforded by the four documents cited above and identify instances in which one service provides its members with substantially greater protections than the others. Remember that under Hamdan v. Rumsfeld's interpretation of Article 36(b), judicial review is now available of instances where the President has elected not to establish uniform rules but where such uniformity would be practicable. See Hamdan v. Rumsfeld, 542 U. S. 507 (2006). Has anyone advanced such a inter-service Article 36(b) challenge yet?

CAAF rules on the merits at the petition stage

In United States v. O'Neal, __ M.J. ___, No. 08-0024/AR (C.A.A.F. Jan. 15, 2008) (summary disposition), CAAF took the fairly unusual step of ruling on the merits of a claim at the petition stage before plenary briefing.

CAAF granted review of this issue:

WHETHER THE MILITARY JUDGE ERRED BY FAILING TO REOPEN THE PROVIDENCE INQUIRY IN ACCORDANCE WITH UNITED STATES v. PHILLIPPE, 63 M.J. 307 (C.A.A.F. 2006), WHEN FACTS ELICITED DURING APPELLANT’S UNSWORN STATEMENT RAISED THE POSSIBLE DEFENSE OF MISTAKE OF FACT AS TO AUTHORITY TO LEAVE.

But then, rather than ordering briefs or remanding the case to ACCA, CAAF ruled immediately: "The decision of the United States Army Court of Criminal Appeals is reversed as to Specification 2 of Charge I and as to the sentence, but is affirmed in all other respects."

Can one of our Army lurkers please fill us in on what happened. Did GAD concede error at the petition stage? And what were the precise facts giving rise to this outcome? I couldn't find ACCA's opinion online.

The new Manual is here; the new Manual is here!

An alert reader has provided us with this link to the 2008 Manual for Courts-Martial.

Affirming a non-existent finding

Today I was surprised by two results -- first when my Terps upset No. 1 UNC at the Dean Dome and second when I read CAAF's summary disposition from Tuesday in United States v. Williams, __ M.J. ___, No. 08-0078/MC (C.A.A.F. Jan. 15, 2008) (summary disposition). CAAF ruled:

[I]n accordance with a pretrial agreement, Appellant entered pleas of guilty to three offenses, to include Specification 1 of Charge II. The military judge accepted his pleas, and then entered guilty findings with respect to two of those offenses, but omitted any finding as to Specification 1 of Charge II. There was no objection at trial or in any post-trial processing. We conclude that Appellant was not prejudiced by this omission. See United States v. Davie, 18 M.J. 598, (N.M.C.M.R. 1984), petition denied, 19 M.J. 121 (C.M.A. 1984).

It isn't at all clear why the defense would have objected at trial to not being found guilty of a specification. And CAAF is certainly right that Pvt Williams wasn't prejudiced by the omission of a finding of guilty. But he does seem to be prejudiced by a Court Martial Order that apparently indicates that he was found guilty of a specification when, in fact, he wasn't.

This case doesn't result in an injustice -- everyone knows that the accused pled guilty and that Judge Greer meant to find the accused guilty. But I don't see how a CCA can affirm a finding that was never made. Indeed, I don't even see how a CCA has jurisdiction to consider a finding that was never made.

NMCCA's Williams decision isn't available on its public web site, but it is on NKO, so I've posted in here on CAAFlog.com.

NMCCA's opinion tells us that Pvt Williams argues "that the convening authority could not approve, and this court cannot affirm, a finding of guilty to Specification 1 of Charge II, when the military judge failed to announce any finding to that specification." United States v. Williams, No. NMCCA 20070024, slip op. at 2 (N-M. Ct. Crim. App. July 31, 2007) (per curiam). That sounds like a very logical position to me. But not to NMCCA. Relying on intermediate military appellate decisions, NMCCA rules that "the failure to announce findings as to a specification has been held not to prejudice an accused where he pled guilty, his plea was provident, and the fact-finder's intention is evident from the record. Such was the case here." Id. (internal citations omitted). NMCCA concludes that "although the military judge erred by failing to announce a finding of guilty as to Specification 1 of Charge II, we find this error to be harmless, and, therefore, decline to grant relief." Id., slip op. at 3. But the real question in this case isn't whether the judge erred or that error was "harmless." The military judge made a mistake, but it was a mistake to the accused's benefit. That mistake wasn't harmless -- it was beneficial. So NMCCA really isn't ruling that the mistake is "harmless." Rather, it's ruling that it will ignore the mistake and pretend that the military judge did something that he didn't actually do -- to wit, find the accused guilty of Spec 1 of Charge II. The point really is that the promulgating order is wrong to say that the accused was found guilty of that spec when everyone admits he wasn't. So there real error in this case was in the CMO. And while NMCCA's opinion tells us that the defense didn't object to the erroneous statement of the findings in the SJAR, if the CMO is wrong, then it should be corrected. Indeed, on the same day that it issued Williams, CAAF went out of its way to correct a $108.06 mistake in the total value of bad checks at issue in another case. United States v. Jones, __ M.J. ___, No. 07-0875/AF (C.A.A.F. Jan. 15, 2008) (summary disposition). It strikes me as a bit odd that CAAF would care about that $108.06 discrepancy but wouldn't care that a CCA exercised jurisdiction over a non-existent finding and purported to affirm a non-existent finding.

CAAF affirmed NMCCA's highly questionable decision by citing a 1984 published NMCMR opinion. United States v. Davie, 18 M.J. 598 (N.M.C.M.R.), petition denied, 19 M.J. 121 (C.M.A. 1984). But in Davie, the military judge didn't neglect to make any findings to a specification. Rather, in Davie the military judge failed to announce the particular words that were substituted into two specs when the accused pled guilty by exceptions and substitutions. NMCCA reasonably concluded that this wasn't a deal breaker when the military judge announced on the record that he or she (I can't tell from the opinion) "announce[d] that in accordance with your pleas, the court finds you" guilty of the specs except for certain language and "of the excepted words, not guilty; of the substituted words, guilty." Id. at 598. Ruling that this language essentially incorporated by reference the substitutions from the accused's pleas seems reasonable. It also seems clearly distinguishable from saying that it's okay to omit any finding to a specification but nevertheless proceed as if a finding of guilty had been announced.

Of course, Pvt Williams wasn't acquitted of the spec, so there would be no jeopardy bar to remanding the case to allow the military judge to actually say on the record what he meant to say but didn't the first time. But the right answer can't be to pretend that the military judge announced a finding that everyone knows he didn't. No doubt some military judge will make a similar mistake in the future. When he or she does, I hope CAAF will take the opportunity to overrule its summary disposition in Williams.

European Court of Human Rights nixes part of British military pretrial confinement procedure

One of the most significant military justice developments in the last 20 years (a window that just barely excludes Solorio v. United States) is the European court system's repudiation of the British military justice system in Findlay v. United Kingdom. Whether you agree or disagree with the outcome, we can probably reach consensus on two points: (1) the outcome of the litigation was significant; and (2) the lawyer who pursued the case on Lance Sergeant Findlay's behalf performed brilliantly.

Now that lawyer -- John Mackenzie -- is at it again. In a European Court of Human Rights decision that is posted on NIMJ's web site, the Court agrees with Mr. Mackenzie that the Armed Forces Act and Queen's Regulations for the Army in place at the time the case arose violated the European Convention on Human Rights by allowing a soldier's commanding officer to decide whether to retain a soldier accused of a crime in pretrial confinement. Boyle v. United Kingdom, (Application No. 55434/00) (Eur. Ct. Hum. Rgts. Jan. 8, 2008).

Article 5 § 3 of the European Convention on Human Rights provides:

Everyone arrested or detained in accordance with the provisions of paragraph 1(e) of this Article shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

Boyle's "main complaint was that his commanding officer could not constitute a suitable judge or other officer because he was part of the prosecution machinery, because his power to decide on close arrest conflicted with his responsibility for discipline within his command and because he lacked the necessary qualifications or experience."

The European Court agreed. Relying on its decision in Hood v. United Kingdom, 29 EHRR 365 (1999), the European Court held that because the commanding officer exercised a prosecutorial role in the system, he lacked the independence and impartiality necessary to be considered a "judicial power."

While, obviously, neither the European Convention on Human Rights nor European Court of Human Rights case law directly affects our system (though we could have a fascinating discussion about how it has essentially precluded use of the U.S. military death penalty for servicemembers based in Europe), just as a hypothetical analysis, how would our pretrial confinement system come out under Boyle? The review procedures prescribed by R.C.M. 305(i) probably provide a sufficient check on command authority to distinguish the U.S. system from the British system invalidated by Boyles. But does the "neutral and detached officer" performing pretrial confinement review duties qualify as a "judicial power"?

CAAF supports the attorney-client relationship -- and motherhood

I have previously noted that CAAF seems to be taking a keen interest in the attorney-client relationship this term. Among other actions, CAAF has specified issues scrutinizing the division of authority between attorney and client, United States v. Larson, __ M.J. ___, No. 07-0263/AF (C.A.A.F. Nov. 29, 2007) (order), provided two opportunities for the Air Force Court to quit listing lawyers as counsel for appellant unless the lawyers had actually entered an appearance in the case, United States v. Roach, __ M.J. ___, No. 07-0870/AF (C.A.A.F. Nov. 21, 2007) (summary disposition), and denied the government's attempt to sever an attorney-client relationship between an Air Force appellant and his government-provided civilian attorney (moi). United States v. Miller, __ M.J. ___, No. 07-5004/AF (C.A.A.F. Jan. 7, 2008) (order).

Today CAAF once again protected the attorney-client relationship, in a subtle but laudable manner. My colleague Capt Tiaundra Sorrell is the appellate defense counsel in United States v. Perez, No. 08-5002/AF. She is also great with child. CAAF recently scheduled oral argument in the Perez case for 12 March. That was problematic, because if all goes well, Capt Sorrell will be nursing a new-born by 12 March. So Capt Sorrell filed a motion asking CAAF to move her oral argument up. Today it did, adding the Perez case to the schedule for 5 February. As a result, Senior Airman Perez will be represented at CAAF by the lawyer with whom he has an established attorney-client relationship. This term may be shaping up as the Year of the Attorney-Client Relationship.

Code Committee meeting 4 March

CAAF has announced that the Code Committee will hold a public meeting at 0900 on 4 March. The meeting will be held at CAAF's courthouse. Here is a link to the meeting announcement.

United States v. Toy

CAAF decided yesterday that MRE 317(a)'s suppression of evidence gathered in violation of laws applicable to members of the armed forces does not extend to evidence gathered in violation of state law.

The issue before CAAF was different from the issue decided by CCA. Before the lower court, Toy argued that two recordings--one made without his knowledge and one made without his consent, in violation of Hawaii state law--should have been suppressed under 18 U.S.C. § 2511, the federal wiretapping law. This law essentially provides for the admission of recorded conversations as long as at least one party consented to the recording, unless the party making the recording acts with a purpose to violate state law or to commit a tortious act. Of course, federal law controls the admissibility of evidence in a federal tribunal. But since the federal law itself seemed in this instance to incorporate state law in this respect, Toy argued to the CCA that a recording made in violation of Hawaii's two-party consent law was inadmissible under federal law as well. The trial judge and CCA rejected this argument.

At CAAF, appellant decided to retool the argument. Since M.R.E. 317 excludes evidence that must be suppressed under the Constitution and statutes applicable to members of the armed forces, Toy argued that the more restrictive Hawaii wiretap law required suppression independent of the operation of 18 U.S.C. § 2511, or any other federal law for that matter. After all, Toy argued, the Hawaii law is in fact a statute applicable to members of the armed forces, at least the ones in Hawaii.

CAAF was having none of it, and dispatched appellant's arguments for essentially the same reasons CCA dispatched the first argument. Federal law governs the admissibility of evidence in courts-martial, end of story. And just in case anyone thought that the first argument was still twitching after the court took care of the new argument, Judge Baker administers a dicta double-tap at the end of the opinion affirming NMCCA's handling of the first theory.

I should add that I was Toy's counsel at CCA and then the IMC at a sentencing rehearing. I am usually "reasonably available" for IMC to cases in Hawaii, in case anyone was wondering.

Call for submissions to Journal of Military and Veterans Law

We received a very nice e-mail from the editors at the Journal of Military and Veterans Law asking us to pass along their call for submissions. Since half of their authors constitutes half of our readers (i.e., JO'C), we are happy to do so.

The William & Mary Military Law Society is now accepting submissions for the 2008 issue of its online publication, the Journal of Military and Veteran Law. The Journal's current incarnation is the result of the entirely voluntary efforts of a small group of students committed to reviving the only civilian publication dedicated to military law and related issues.

The Journal is accepting articles and essays of any length in the areas of national security, military, and veteran law. Submissions should be sent to mlwsoc@wm.edu with the subject line "JMVL Submission." Additional information about the Journal, including past issues, is available at http://www.wm.edu/law/publications/mlwsoc/.

Frequent CAAFlog commentator John O'Connor published this fine article in the Journal. The Journal also published an earlier piece.

New CAAF Decision: Not Toying Around

CAAF decided United States v. Toy, No. 07-0316/NA, __ M.J. __ (Jan. 17, 2008). CAAF held that MRE 317(a) does not incorporate state law regarding the intent level required to make non-consensual wiretapping illegal (under 18 U.S.C. § 2511(2)(d)) and excludable in a subsequent court-martial. That's all I have time for right now, more from CAAFlog later.

Still more CCA Project Outreach news

I understand that the Navy-Marine Corps Court will hold an en banc oral argument at Georgetown Law on 13 February. Darn -- a day early for a cheap Valentine's Day date!

Coast Guard Court to hold partially closed hearing

The Coast Guard Court will hold an oral argument tomorrow, portions of which will be closed to the public.

The court's hearing notice announces:

The U.S. Coast Guard Court of Criminal Appeals will hear oral argument in the case of United States v. Cadet Webster M. Smith on Wednesday, the 16th of January 2008, in the Courtroom at Ballston, VA, on the 7th Floor, 4200 Wilson Blvd. There will be a closed session, as well as a session that is open to the public. The closed session will begin at 0950 and will be followed by the open session at 1030.

Ronald C. Machen, Esquire, will argue on behalf of Cadet Webster M. SMITH, the appellant in this case. LCDR Patrick M. Flynn, USCG, will argue on behalf of the Government.

Issues: At the closed session, the issue to be argued is whether the convictions for extortion, sodomy, and indecent assault must be reversed because the military judge violated Appellant’s constitutional right to confront his accusers by limiting his cross-examination of a witness.

The issues to be argued at the open session are (1) whether the sodomy conviction based on private consensual, non-commercial activity between adults of equal rank is unconstitutional if the extortion and indecent-assault findings are set aside and (2) whether the extortion conviction must be overturned because the Government failed to prove that Appellant threatened another cadet with the intent to obtain sexual favors.

Case Summary: Appellant was tried by General Court-Martial and convicted of unauthorized absence, attempted failure to obey a lawful order, sodomy, extortion, and indecent assault. The approved sentence consists of a dismissal, forfeiture of all pay and allowances, and confinement for six months.

The 1030 session of the hearing is open to the public.

Maybe the CA really is the accused's best hope for relief Part Deux

Military appellate courts are fond of saying that "the convening authority is an accused's best hope for sentence relief." See, e.g., United States v. Davis, 58 M.J. 100, 102 (C.A.A.F. 2003). While some CAAFlog readers recently seemed to scoff at that notion, it turns out it might be true.

We have previously noted LT Michael J. Marinello's wonderful Naval Law Review article, Convening Authority Clemency: Is It Really an Accused's Best Chance of Relief?, 54 Naval L. Rev. 169 (2007). LT Marinello conducted a random sampling of 807 cases docketed with the Navy-Marine Corps Court of Criminal Appeals. The CA exercised clemency in 35 cases, or 4.337%. And this sampling would tend to statistically understate the overall percentage of cases in which clemency was awarded, because it would not capture any case in which the convening authority disapproved all findings of guilty, such as LTC Jordan's case.

Major Jeff Lippert conducted a review of three of the four CCAs' handling of BCD specials from fiscal years 1998 through 2002. Major Jeffrey D. Lippert, Automatic Appeal Under UCMJ Article 66: Time for a Change, 182 MIL. L. REV. 1 (2004). (The study didn't include Coast Guard CCA cases.) He found, "Of the over 12,000 BCD special cases the service courts reviewed, the service courts took action affecting the findings or sentence in under 350 cases, or less than three per cent (3%) of cases." Id. at 17.

So it preliminarily appears that the CA represents a better hope of relief than do the CCAs. And the disparity is likely greater than it might first appear because of the likelihood that sentence relief from the CA will have a greater tendency to be meaningful than sentence relief from the CCA, which often comes months or years after the sentence was actually executed.

But one must be cautious about that conclusion. The two articles studied different groups of cases and neither studied all court-martial cases from the relevant time period. LT Marinello studied a random sample of one service while MAJ Lippert studied a discrete subgroup of cases from three of four services.

Obtaining a definitive answer to the question of whether the CA is truly the accused's best hope of relief probably wouldn't be worth the effort. But based on the available statistics, the idea isn't scoffable.

Foerster Cert. Denied by SCOTUS

The most recent military cert. petition to go to conference at the SCOTUS, Foerster, was denied today. See orders list here. See here and here and here and here for our discussion of the case. Foerster's counsel gets a set of steak knives considering the other 5 posts I left off that list.

Martinez court-martial continues

We previously noted the pending writ appeal generated by the capital court-martial of United States v. Martinez. Martinez v. Henley, __ M.J. ___, Misc. No. 08-8002/AR (C.A.A.F. Nov. 14, 2007). That writ appeal appears to remain pending, but proceedings are continuing at the court-martial level. The Fayette Observer reports that on Thursday, the military judge agreed to sever charges in the case. Allegations that Staff Sergeant Martinez stole office equipment and possessed firearms and explosives will be tried at a separate court-martial.

Staff Sergeant Martinez's capital court-martial on charges that he killed two Army officers outside Tikrit, Iraq, in the summer of 2005 is scheduled to start on 23 June 2008.

Major NYT piece on homicides by Iraq and Afghanistan veterans

Today's NYT features this lengthy piece on homicides committed by Iraq and Afghanistan veterans after returning to the States.

The article reports that the "Times found 121 cases in which veterans of Iraq and Afghanistan committed a killing in this country, or were charged with one, after their return from war. In many of those cases, combat trauma and the stress of deployment — along with alcohol abuse, family discord and other attendant problems — appear to have set the stage for a tragedy that was part destruction, part self-destruction."

Even though "[t]hree-quarters of these veterans were still in the military at the time of the killing" and "[a] quarter of the victims were fellow service members," most of the resulting criminal cases were "prosecuted not by the military justice system but by civilian courts in state after state." But the article does discuss one prominent Marine Corps court-martial case:

When Archie O'Neil, a gunnery sergeant in the Marines, returned from a job handling dead bodies in Iraq, he became increasingly paranoid, jumpy and fearful — moving into his garage, eating M.R.E.'s, wearing his camouflage uniform, drinking heavily and carrying a gun at all times, even to answer the doorbell.

"It was like I put one person on a ship and sent him over there, and they sent me a totally different person back," Monique O'Neil, his wife, testified.

A well-respected and decorated noncommissioned officer who did not want to endanger his chances for advancement, Sergeant O'Neil did not seek help for the PTSD that would later be diagnosed by government psychologists. "The Marine way," his lawyer said at a preliminary hearing, "was to suck it up."

On the eve of his second deployment to Iraq in 2004, Sergeant O'Neil fatally shot his mistress, Kimberly O'Neal, after she threatened to kill his family while he was gone.

During a military trial at Camp Pendleton, Calif., a Marine defense lawyer argued that "the ravages of war" provided the "trigger" for the killing. In 2005, a military jury convicted Sergeant O'Neil of murder but declined to impose the minimum sentence, life with the possibility of parole, considering it too harsh. A second jury, however, convened only for sentencing, voted the maximum penalty, life without parole. The case is on appeal.

United States v. Hunter: No suspense

United States v. Hunter, __ M.J. ___, 07-0386/CG (C.A.A.F. Jan. 11, 2008), addressed the question of whether a CA could decline to honor the suspension provisions of a pretrial agreement based on misconduct that occurred after the PTA was signed but before the case was tried. The defense argued "that a misconduct provision in a PTA governing misconduct that occurs before the convening authority acts pursuant to R.C.M. 1107 is per se impermissible under R.C.M. 1109 because R.C.M. 1109 requires that the withdrawal be during the 'period of suspension,' or after R.C.M. 1107 action." Id., slip op. at 5-6. CAAF disagreed, holding that "as long as the procedural protections set forth in R.C.M. 1109 are either followed or waived, a convening authority may withdraw before action from a pretrial agreement (PTA) when the accused violates conditions established pursuant to Rule for Courts-Martial (R.C.M.) 705(c)(2)(D)." Id., slip op. at 3.

Petty Officer Hunter ended up serving an additional 60 days of confinement based on his pretrial misconduct, the adjudged sentence, the original PTA cap, and the loss of the benefit of his deal.

CAAF held that under the plain terms of the PTA, if the accused engaged in any misconduct after the deal was signed, the CA was authorized to decline to give him the benefit of the suspension provision. While conceding that "R.C.M. 705(c)(2)(D) could have been drafted more precisely," CAAF concludes that it doesn't limit a CA and accused from entering a deal where the accused can forfeit the suspension protection by post-deal but pre-CA's action misconduct, including pretrial misconduct. Id., slip op. at 9.

In Hunter, the military judge also failed to explain this particular PTA provision to the accused. At the Coast Guard Court, the judges split 2-1 over whether the military judge's failure entitled Petty Officer Hunter to relief. United States v. Hunter, 64 M.J. 571 (C.G. Ct. Crim. App. 2007). CAAF, however, was unanimous in saying it didn't. The key question in determining whether there was material prejudice, CAAF holds, is whether there is evidence or at least a representation that the accused "misunderstood the terms of his agreement, that the operation of any term was frustrated, [or] that Appellant's participation in the agreement was anything other than wholly voluntary." Id., slip op. at 12-13 (quoting United States v. Felder, 59 M.J. 444, 446 (C.A.A.F. 2004)). I suspect that JO'C will like this portion of the opinion. The judge screwed up, but the burden was on the accused to demonstrate that he wouldn't have proceeded with his guilty plea had the judge correctly advised him. Nothing in the record suggests this. On the contrary, CAAF tells us, the fact that even when the extra time came crashing down on him, Petty Officer Hunter wasn't heard to say "that he had never heard of, or did not understand, the provision," suggests that he understood the provision and would have proceeded with the deal had the military judge correctly explained it to him. Id., slip op. at 13. This seems to be a sound application of the burden and conclusion that the defense didn't carry its burden.

CAAF's conclusion also seems to comport with common sense. I've tried a lot of courts-martial and read the records of trial in lots, lots more. I can't recall even one instance where I've seen or read a proceeding in which the military judge explains a pretrial agreement term to an accused and the accused responds, "It says WHAT??? No way. I'm not going to plead guilty if THAT'S what it says!" Has anyone else?

CA's action in United States v. Jordan cont'

Here's a link to a longer piece dealing with the Military District of Washington commanding general's decision to disapprove the findings from LTC Steven Jordan's court-martial.

New CAAF opinion: United States v. Hunter

CAAF released its opinion today in United States v. Hunter, __ M.J. ___, No. 07-0386/CG (C.A.A.F. Jan. 11, 2008). Judge Ryan's opinion for a unanimous court affirmed the Coast Guard Court's ruling.

CAAF announces rule changes

CAAF has adopted rule changes, the primary effect of which is to revise Rule 36A, under which supplemental citations of authority may be called to the court's attention. The rule changes take effect 1 March 2008. Here's a link to the order announcing the rule changes. We previously discussed these changes here.

Maybe the CA really is the accused's best hope for relief

NIMJ's web site has posted this article from JURIST reporting that the convening authority has disapproved the finding of guilty in the court-martial of LTC Steven L. Jordan. JURIST reports that LTC Jordan was "the only commissioned officer charged in connection to the Abu Ghraib prison abuse scandal." The finding of guilty, however, was limited to a charge that he violated an order by discussing the investigation of alleged abuse at Abu Ghraib.

We previously discussed the Jordan case here, here, here, and here.

Stopping (or at least slowing) the revolving door

In United States v. Rhoades, __ M.J. ___, No. 07-0173/AR (C.A.A.F. Jan. 9, 2008), CAAF unanimously holds that the military judge did not abuse his discretion by precluding the former Chief of Military Justice at Fort Huachuca (gesundheit) from serving as civilian defense counsel in a case that arose during the waning days of his active duty service.

Chief Judge Effron's opinion for the court sets out a helpful overview of legal restrictions on post-government employment. The opinion also observes that the Sixth Amendment right to counsel of choice isn't absolute, but may be outweighed by the "need for fair, efficient, and orderly administration of justice." Rhoades, slip op. at 4 (quoting United States v. Campbell, 491 F.3d 1306, 1310 (11th Cir. 2007)). So "disqualification of a defendant's chosen counsel due to a 'previous or ongoing relationship with an opposing party, even when the opposing party is the Government,' does not violate the Sixth Amendment." Id. (quoting Wheat v. United States, 486 U.S. 153, 159 (1988)).

CAAF concludes "that a record that demonstrates a reasonable likelihood that counsel's representation would violate a statutory post-employment restriction designed to protect the integrity of trial proceedings is sufficient to show 'a serious potential for conflict' that may overcome the presumption in favor of the accused's counsel of choice" and that the military judge "has discretion to disqualify counsel." Id. (quoting Wheat, 486 U.S. at 164).

Falcon - Dicta or Binding Precedent? You Make the Call

I will keep this short and let the comments decide, particularly since CAAFlog has eloquently summarized Falcon below. In Falcon CAAF said the gambler's defense from Wallace did not apply in Falcon because the accused was charged under Art. 123a, not Art. 134. Essentially they are saying the Wallace gambler's defense has no place in this case. Then, after making that HOLDING, CAAF goes on to "expressly" overrule Wallace . . . in a case where they said Wallace did not apply. Isn't there some prudential or case-or-controversy-esque limit on CAAF overruling precedent in a case where the precedent does not apply? Talk amongst yourselves.

Government hits the jackpot in Falcon

One of the most famous movie lines of all time is Captain Renault's protestation that "I'm shocked, shocked to find that gambling is going on in here!" That line, of course, is immediately followed by the croupier handing Captain Renault his winnings.

In United States v. Falcon, __ M.J. ___, No. 07-010/NA (C.A.A.F. Jan. 9, 2008), CAAF announced that it will no longer pretend to be shocked that many overseas military clubs feature slot machines.

Falcon is a unanimous opinion, with Judge Erdmann writing for the court.

Postal Clerk Seaman Falcon pled guilty to making and uttering 49 checks worth $4,3000 without sufficient funds in violation of Article 123a. (Like virtually any other postal clerk seaman who lands before a special court-martial, he also pled guilty to two specs of opening and stealing mail, but that's not at issue in the appeal.)

Falcon argued that the finding of guilty to the bad check offenses was improvident under the gambler's defense because he took the proceeds from the bad checks written to two enlisted clubs on Okinawa and pumped them right back into slot machines at the clubs.

CAAF first ruled that the gambler's defense applied only to Article 134 dishonorable failure to maintain sufficient funds bad check offenses but not to Article 123a bad check offenses, which include an intent to defraud element. But then, much more importantly, CAAF eliminates the gambler's defense for any bad check offense committed to obtain money for legal gambling. CAAF leaves open the possibility that the gambler's defense might still apply where a bad check is written to finance illegal gambling activity.

In the course of reaching this result, CAAF overturned its own decision in United States v. Wallace, 15 C.M.A. 650, 36 C.M.R. 148 (1966). Wallace had held that courts-martial would not promote gambling by holding a servicemember criminally liable for an Article 134 bad check offense committed to obtain the funds with which to gamble. Even though Wallace dealt with apparently legal slot machine gambling in overseas military clubs, CMA held: "Whether gaming is legal or illegal, transactions involving the same or designed to facilitate it are against public policy, and the courts will not lend their offices to enforcement of obligations arising therefrom." Id. at 651, 36 C.M.R. at 149.

CAAF's response in Falcon was: how quaint [not a direct quote].

CAAF noted that in "the forty-one years since Wallace, our society has seen legal gambling grow both in acceptance and popularity. Governments at all levels sanction and often tax a broad scope of gambling activities." Falcon, slip op. at 10-11. CAAF concludes that "when the military allows gambling at service clubs around the globe, it is inconsistent for this court to continue to classify legal gambling as being against public policy." Id., slip op. at 11.

The opinion also discussed stare decisis before concluding that given Wallace's policy basis, it was appropriate to overturn it.

Finally, CAAF rejected an argument that the military judge had erroneously failed to inquiry into a potential defense when the case in E&M included evidence that Seaman Falcon was addicted to gambling and had been diagnosed as a pathological gambler.

Okay, who lost money on Falcon's outcome?

Two new CAAF opinions

Falcon and Rhoades. More details to come on this same bat channel.

Important follow-up to computer monitoring/ attorney-client privilege article

We previously noted Jack Zimmerman's challenge to the effect of the new Department of the Navy computer monitoring banner and policies on the attorney-client privilege. NIMJ's web site has posted an important follow-up to that controversy. NCTimes.com is reporting that a "warning to users of military computers that government agents could seize -- without cause or a warrant -- anything found on the machines is now under revision, the top legal adviser in the Marine Corps said this week." Here's a link to the full article. The article also reports: "A November memo from the Pentagon detailing the new policy stated that privileged communications remain protected from search and seizure. That piece of information, however, did not appear on the warnings that showed up on the computer screens." Brigadier General James Walker, the Staff Judge Advocate to the Commandant, is also attributed with saying that the banner that raised the concern was dropped last week.

Foerster relisted

Today's Supreme Court docket update indicated that Foerster v. United States, No. 07-359, has been relisted for the 11 January conference. Justice Ginsburg tells us this about relisting:

[T]he Court may relist a case for a later conference, because one or more of the justices wants to give further thought to his or her vote, or perhaps wants time to prepare a dissenting opinion disagreeing with the Court's decision to deny review.(It happens sometimes - indeed, it is the definition of success - that a dissent from a denial of review is never published, because the draft dissent, when circulated in-house, produces the very effect the writer seeks - it leads one or more justices to rethink the matter and supply the vote or votes necessary to grant review.)

Justice Ruth Bader Ginsburg, Workways of the Supreme Court, 25 Thomas Jefferson L. Rev. 517, 518 (2003).

Invisible Foerster

The Supreme Court's docket page indicates that the military cert petition in Foerster v. United States, No. No. 07-359, was distributed for last Friday's conference. Yet Foerster was not included on today's order list. That could mean one of several things, including the possibility that one or more of the Justices is writing a dissent or concurrence to denial of certiorari. We'll check tomorrow to see if the docket update reflects a relisting. But one interesting possibility is that Foerster is being held pending resolution of some other case. If so, there may be a GVR in Foerster's future. We'll keep an eye on this developing situation.

Is it permissible for a Judge Advocate General to hire a civilian to provide appellate representation with military appellate defense counsel?

[DISCLAIMER: I am the civilian counsel whose employment is at issue.]

Since August, my day job has been working as a civilian appellate defense counsel at the Air Force Appellate Defense Division, providing representation in conjunction with detailed military appellate defense counsel. In three of the cases to which I've been assigned, the Air Force Appellate Government Division argued that it was illegal for a government-employed civilian counsel to represent a servicemember on appeal.

The government's argument was premised primarily on: (1) Article 70(d), which says that the "accused has the right to be represented before the Court of Criminal Appeals, the Court of Appeals for the Armed Forces, or the Supreme Court by civilian counsel is provided by him"; and (2) the discussion to R.C.M. 1202, which provides that civilian appellate counsel "will not be provided at the expense of the United States."

On 17 October, in this unpublished order, the Air Force Court disagreed. United States v. Witt, No. ACM 36785 (A.F. Ct. Crim. App. Oct. 17, 2007) (order). The Air Force Court reasoned that "Article 70(d) expressly affords the appellant a right to be represented on his appeal, by a civilian attorney only if provided by the appellant. . . . Article 70(c) affords appellant the right to be represented on his appeal by a commissioned officer qualified under section 10 USC § 827(b)(1). These two provisions represent the rights of the appellant, not limitations on The Judge Advocate General's authority to hire civilian attorneys to supplement and assist commissioned Judge Advocates. So long as the representation of the appellant by Mr. Dwight Sullivan is not executed in contravention of either of the appellant's rights afforded under Article 70. UCMJ, 10 U.S.C. § 870, this Court will not interfere with the employment of civilian counsel."

I think the Air Force Court got it exactly right. Under Article 70, a Judge Advocate General couldn't provide an appellant with a civilian government attorney in lieu of military counsel, but the Judge Advocate General is free to provide such a counsel in addition to a military appellate defense counsel. The comment in R.C.M. 1202's discussion to the contrary is based on an incorrect reading of Article 70 and is non-binding. See Manual for Courts-Martial, United States, Pt. I, ¶4 discussion (2005 ed.). (In fact, as CAAF's case law makes clear, the discussion isn't even technically part of the Manual for Courts-Martial. Willenbring v. Neurauter, 48 M.J. 152, 168 (C.A.A.F. 1998).)

CAAF today appeared to agree with the Air Force Court's conclusion -- though we don't yet know CAAF's reasoning. Upon calling a case that I was orally arguing today, Chief Judge Effron announced from the bench that CAAF was denying the government's motion to disqualify me as the servicemember's counsel. Later today, CAAF issued this order memorializing that ruling. United States v. Miller, __ M.J. ___, No. 07-5004/AF (C.A.A.F. Jan. 7, 2008) (order). While I can't be sure, my guess is that CAAF will explain its reasons when it rules on a similar motion pending in United States v. Roach, No. 07-0870/AF.

Off we go into the wild green yonder

This Friday, the Air Force Court of Criminal Appeals will hold a Project Outreach argument at the Michigan State University College of Law.

The Air Force Court will hold another Project Outreach argument at the Louis D. Brandeis School of Law at the University of Louisville (my mom's home town) on 1 February.

Air Force lawyer reportedly investigated for telling potential witness not to initiate contact with defense counsel

Here's the lead of this article from today's Fayette Observer headlined, "Report: Ex-Pope prosecutor may have withheld evidence":

Jan. 5--A military lawyer formerly assigned to Pope Air Force Base is under investigation after allegations that he withheld evidence from defense attorneys in a 2007 rape case.

Lt. Col. Philip Wold is accused of telling Capt. Michel Edwards, Pope's sexual assault response coordinator, not to talk with defense lawyers for Airman 1st Class Cassandra Hernandez, according to the Air Force Times.

Here's a link to the Erik Holmes' Air Force Times piece discussing the case.

WaPo article on Haditha cases

To follow up on the No Man's post from yesterday, today's WaPo runs this article by Josh White headlined: No Murder Charges Filed in Haditha Case; Four Marines to Face Lesser Charges After Two-Year Inquiry Into Iraqi Killings.

Here's the lead:

After a two-year investigation into the killings of up to 24 civilians in Haditha, Iraq, the Marine Corps has decided that none of the Marines involved in the incident will be charged with murder. Instead, two enlisted Marines and two Marine officers will face trial in coming months for the killings and for failing to investigate them.

All DD 214 delivery all the time

CAAF's daily journal today included a grant of review and an accompanying summary disposition. The granted issue asked: "WHETHER THE COURT-MARTIAL HAD PERSONAL JURISDICTION OVER APPELLANT WHERE HE RECEIVED HIS DD-214 PRIOR TO SENTENCING." United States v. Pope, __ M.J. ___, No. 07-0788/AR (C.A.A.F. Jan 3, 2008). ACCA's opinion in the case doesn't appear to be available online, so it's impossible to tell exactly what's going on. But CAAF summarily affirmed in light of United States v. Harmon, 63 M.J. 98, 101-03 (C.A.A.F. 2006). [CAAF's order transposes the numbers in the first page of the Harmon opinion; the preceding cite is correct.]

In Harmon, a Marine received his DD 214 on 17 May 2001. After his receipt of the DD 214, but before 2359 when it was to take effect, the Marine Corps discovered his criminal misconduct. The Marine Corps then revoked his discharge. In a 4-1 opinion, over Judge Erdmann's dissent, CAAF found that the Marine Corps retained jurisdiction to court-martial Private Harmon.

This Monday, CAAF will consider a somewhat similar issue in United States v. Hart. The AFCCA opinion from that case is available online here. United States v. Hart, No. ACM 36253 (A.F. Ct. Crim. App. Nov. 30, 2006). As we previously discussed here:

In Hart, an airman first class who was pending investigation for drug offenses was issued a DD 214 for medical reasons on 3 March 2004. "The form reflected an effective separation date of" that same date, 3 March 2004." Id., slip op. at 3. The Air Force Court tells us, "On 5 March 2004, the appellant's squadron commander, AFOSI, and the legal office," all of whom believed Hart was on legal hold, "learned of his disability separation. None were pleased." Id. But aha! Due to standard military bureaucratic inertia, Hart hadn't yet received his final pay. The command seized on this loophole to argue for continued court-martial jurisdiction.

Also on 5 March 2004, Hart's acting squadron commander issued a memorandum "stating the appellant's discharge was in error and asking that the DD Form 214 be revoked. In addition, the appellant’s civilian attorney was contacted and told the appellant was required to return to his unit no later than 7 March 2004. The appellant did not do so." He was then reported as being UA and was arrested by civilian authorities.

The Air Force Court explained that "To effectuate an early discharge, there must be: (1) a delivery of a valid discharge certificate; (2) a final accounting of pay; and (3) the undergoing of a 'clearing' process as required under appropriate service regulations to separate the member from military service." Hart, slip op. at 4 (quoting United States v. Harmon, 63 M.J. 98, 101 (C.A.A.F. 2006)).

Everyone agreed Hart had been delivered a valid discharge certificate and had gone through a clearing process. So the "sole issue" that confronted the Air Force Court was "whether the appellant received a 'final accounting of pay' within the meaning of relevant case law and the requirements of 10 U.S.C. § 1168(a)." Hart, slip op. at 4. No, said the Air Force Court.

Haditha Court-Martial Will Make No One Happy

By sheer coincidence, the Marine Corps announced on Monday that Staff Sgt Frank Wuterich will face a general court-martial for the deaths of Iraqi civilians in Haditha. However, as reported by the NY Times (here), Wuterich will only face voluntary manslaughter charges and not more serious charges of murder, in addition to lesser charges of aggravated assault, reckless endangerment, dereliction of duty and obstruction of justice. As we previously reported, the Art. 32 Officer recommended dismissal of the murder charges. However, the new CA, Lt. Gen. Samuel Helland, replacing the now famous Gen. Mattis, decided against referral of unpremeditated murder.

The compromise referral may be at the advice of his trial counsel, believing they can only win on voluntary manslaughter. However, the referral will do little to rebuff the critics of courts-martial's involving foreign civilian deaths and war crimes, as discussed earlier this week. We'll see how the trial plays out in front of members---which I am guessing the Staff Sgt. will elect to hear his case.

C'ville periodicals

New issues of the Army Lawyer and the Military Law Review are online.

The October issue of the Army Lawyer includes two articles that will interest military justice wonks. LTC Timothy MacDonnell offers a thorough primer on post-trial processing of court-martial cases. LTC Timothy C. MacDonnell, Tending the Garden: A Post-Trial Primer for Chiefs of Criminal Law, Army Law., Oct. 2007, at 1. LTC Huestis provides trial advocacy tips on cross-examination. LTC Bradley J. Huestis, Cross-Examination by the Numbers, Army Law., Oct. 2007, at 76.

The Fall 2007 issue of the Military Law Review also contains two articles that will interest military justice wonks. Senior Judge Gierke offers a look back and a look forward at the military justice system, reviewing developments in the system since he was a military judge in Vietnam and discussing future innovations. H.F. "Sparky" Gierke, The Thirty-Fifth Kenneth J. Hodson Lecture on Criminal Law, 193 Mil. L. Rev. 178 (2007). The second is an article by MAJ Kageleiry that "examines the modern psychological interrogation process that too often produces inaccurate, misleading, and even false admissions and confessions." MAJ Peter Kageleiry, Jr., Psychological Interrogation Methods: Pseudoscience in the Interrogation Room Obscures Justice in the Courtroom, 193 Mil. L. Rev. 1 (2007).

CAAF limits enlargement periods

Nelson's Right Eye recently informed us that CAAF was considering shrinking the amount of time that counsel can obtain through an enlargement request. Here's the link.

Yesterday, in a "Memorandum for Appellate Counsel" that doesn't seem to have been included in the daily journal, Mr. DeCicco announced the change:

Regarding motions for enlargement of time, appellate counsel are advised that the Court has directed the Clerk of Court to grant no more than 15 days of additional time to file pleadings beyond the time requirements in the Court's Rules unless the moving party makes a showing of extraordinary circumstances warranting a longer period of time.

Additional requests for enlargement of time in the same case will be granted only upon a showing of extraordinary circumstances.

This policy will take effect for motions filed on and after June 1, 2008.

ACCA rules that mistrial is not a remedy for a speedy trial violation, but also ruled it doesn't matter

Today ACCA chose the curious vehicle of a published opinion to tell us that a mistrial is not a permissible remedy for a speedy trial violation, but that it doesn't matter if the military judge mischaracterized what should have been a dismissal without prejudice as a mistrial. United States v. McClain, __ M.J. ___, Nos. ARMY 20051215 and ARMY 20051331 (A. Ct. Crim. App. Jan. 3, 2008).

ACCA tells us, "Our jurisprudence has long recognized that mistrial and dismissal are not the same." Id., slip op. at 6. The court explains that after a mistrial, the same charges may be referred to a new court-martial. After a dismissal without prejudice, on the other hand, new charges must be preferred if the case is to go forward.

ACCA also tells us that "dismissal is the only remedy for violation of the 120-day rule." Id., slip op. at 7. "Mistrial is not an authorized remedy under R.C.M. 707 for a violation of the 120-day rule." Id. So, ACCA concludes, "dismissal, either with or without prejudice, was required and the military judge’s declaration of a mistrial constituted a clear abuse of discretion." Id.

BUT ACCA disagrees with the defense argument that because jeopardy had attached, Private McClain couldn't be retried on the should-have-been-dismissed charges. ACCA tells us, "In general, '[w]here "the trial is terminated without any submission to either judge or jury as to . . . guilt or innocence" there has been no determination of guilt of [sic] innocence and retrial is not barred.'" Id., slip op. at 9 (quoting United States v. Germono, 16 M.J. 987, 988 (A.C.M.R. 1983)) ([sic] in the original)).

Then, after having taken pains to educate us about the differences between a mistrial and a dismissal, ACCA assures us that "the Supreme Court found a trial court label of 'dismissal' or 'mistrial' not controlling." Id., slip op. at 10 (citing United States v. Lee, 432 U.S. 23 (1977)). ACCA concludes:

The military judge erred in ordering a mistrial when he was required to direct dismissal, but for purposes of the second trial on the original charges, the distinction between mistrial and dismissal "has no significance in the circumstances here presented."

Id. (quoting Lee, 432 U.S. at 31).

ACCA then tells us that in accordance "with numerous military cases holding dismissal of charges does not amount to a finding of not guilty under Article 44, UCMJ," it finds no double jeopardy violation. Id., slip op. at 10-11. All of which leaves me wondering why ACCA chose to publish this curious case.

All quiet on the E Street front revisited

Your entries in the 2007 military justice story of the year contest confirmed that 2007 was a rather unexciting year in military justice land.

The best suggestion was that of the No Man, who thought that the series of acquittals and convictions with light sentences in Iraq war crimes cases was the story of the year. There is actually a growing body of academic commentary criticizing the military justice system not as a ham handed tool of military commanders (the prevailing attack in the pre-Solorio era), but rather as a benighted system that undervalues the lives of foreign civilians and fails to hold servicemembers responsible for war crimes.

The second best suggestion was that the story of the year is the new Article 120, which has been confusing military justice practitioners worldwide since 1 October 2007.

BUT both of those suggestions were made after the contest's deadline had passed. So the t-shirt goes to JO'C, who has the distinction of being the ONLY person to make a non-anonymous suggestion before the contest ended. JO'C, what size t-shirt would you like?

CAAF orders NMCCA to relook at recusal refusal

CAAF issued an interesting order in United States v. Harris on New Year's Eve. As previously discussed by one of our many deceased Navy flag officer commentators,

Harris involves a prosecutorial misconduct/UCI issue where Navy JAG LT Chen allegedly exerted pressure on local law enforcement to silence an exculpatory witness in Harris' case. LT Chen's alleged misconduct led to a formal ethics complaint being filed at the Office of the Judge Advocate General, Code 13, which was then headed by Captain Easy E. Geiser. As I recall, Captain Geiser found that LT Chen had not engaged in ethical misconduct.

Not surprisingly, when Harris was issued, the [author] judge, now Judge Geiser, agreed with himself that there had been no previous misconduct.

On Monday, CAAF granted review of this issue in Harris:

WHETHER A JUDGE ON THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS SHOULD HAVE BEEN RECUSED FROM ACTING ON A CASE IN WHICH HE HAD PREVIOUS OFFICIAL INVOLVEMENT AND KNOWLEDGE OF SALIENT FACTS OUTSIDE THE RECORD OF TRIAL.

United States v. Harris, __ M.J. ___, No. 07-0385/NA (C.A.A.F. Dec. 31, 2007) (summary disposition). CAAF then remanded the case to NMCCA for reconsideration of the issue, with the benefit of the relevant file from the Administrative Law Division, by a panel that doesn't include any of the judges from the original panel.

Article on Marine defense counsel's challenge to lack of computer privacy

We earlier had a spirited discussion about whether the new military computer banners preclude military defense counsel from using their computers to communicate or store privileged information. An NCTimes.com article on NIMJ's web site indicates that this issue is being litigated in the Marine Corps case of United States v. Tatum, one of the prosecutions arising from Haditha. Here's a link to the article. Jack Zimmerman, who is fabulous, is the civilian defense counsel raising the issue, so it's sure to be well-litigated.

Happy New Year

Thus far 2008 has been much like 2007 -- not terribly exciting from a military justice perspective. But there's hope. As Dave Barry pointed out in his 2007-year-in-review piece in Sunday's Washington Post Magazine, "2008, being a leap year, will have a whole extra day of alarming events."