Saturday, January 19, 2008

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

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.


Anonymous said...

I don't see that you have noticed the MCM 2008 is now available on JAGCNET or the Army Publications website (don't let the 2005 date in the index confuse you. See here:

John O'Connor said...

This case is Exhibit A as to why an accused should be permitted to waive appellate review as part of a PTA.