New published NMCCA opinion: United States v. Cabrera-Frattini

I only have a few moments today, so I'll just provide this link to a new NMCCA published opinion that isn't up on the court's web site yet. If no one beats me to it, I'll add some analysis over the weekend. But imagine my joy when I saw that the new published NMCCA opinion was in the case of United States v. Cabrera-Frattini.

One more thought about Wilson

I previously set out my reasons for believing that the pre-1996 Manual for Courts-Martial established carnal knowledge as a strict liability offense for which a reasonable and honest mistake of fact defense is not available but established sodomy with a child under the age of 16 as a general intent offense, for which such a defense would be available. If that starting point is accepted, then Congress's subsequent change to the law of carnal knowledge and inaction regarding Article 125 would leave that status quo ante in place for sodomy with a child under the age of 16.

In thinking about this issue tonight, it occurs to me that there might have been a very good reason why the President (or, more realistically, the Joint Services Committee) might have chosen to make carnal knowledge a strict liability offense while declining to do so for sodomy with a child under the age of 16. For carnal knowledge, if the paramour was older than 16, the accused would have committed no criminal offense. And if a reasonable and honest mistake of fact defense were available and the accused prevailed on that defense, then he would have committed no criminal offense. BUT in a sodomy scenario, engaging in sodomy with a child under 16 would have been criminal, but so would engaging in mutually consensual sodomy (heterosexual or same-sex) with an adult. So the consequence of a successful reasonable and honest mistake of fact defense wouldn't be an absence of criminal liability, but instead a somewhat reduced stigmatization of the offense and a reduction of the maximum authorized confinement from 20 years to 5 years. Five years would probably be considered a sufficient maximum punishment for an individual who engaged in an act of sodomy with a 15-year-old who the accused reasonably and honestly believed was at least 16.

Of course, post-Lawrence, mutually consensual adult sodomy MAY NOT be criminal. But surely that doesn't change the President's pre-Lawrence decision (assuming I'm right) to treat sodomy with a child under the age of 16 as a general intent offense to which a reasonable and honest mistake of fact defense would apply.

CAAF specifies pretrial punishment issue

CAAF issued the following interlocutory order yesterday:

[T]he Court notes that Appellant was placed in continuous restraint in a chair for six weeks during pretrial confinement with no indication that the Government’s conduct was undertaken upon medical advice, under medical supervision, or in accord with a medical protocol. Accordingly, it is ordered that Appellant file an additional supplement within 15 days of the date of this Order on the following issue:

WHETHER THE FACTS AND CIRCUMSTANCES SURROUNDING APPELLANT’S RESTRAINT IN A CHAIR FOR SIX WEEKS CONSTITUTE UNLAWFUL PRETRIAL PUNISHMENT IN VIOLATION OF ARTICLE 13, UNIFORM CODE OF MILITARY JUSTICE, OR OTHERWISE VIOLATE APPELLANT’S RIGHT TO DUE PROCESS.

United States v. Hart, __ M.J. ___, No. 07-0828/AR (C.A.A.F. Feb. 27, 2008).

CAAF gave the government 15 days to file an answer and allowed the appellant to file a reply within 5 days.

ACCA's opinion doesn't appear to be on its web site.

CAAF's approach is interesting. Rather than simply specifying the issue, CAAF chose to solicit the parties' views before granting plenary review.

JO'C on military appellate review

Sacre bleu, JO'C has been holding out on us. Here's a citation to his new law review article: John F. O'Connor, Foolish Consistencies and the Appellate Review of Courts-Martial, 41 Akron L. Rev. 175 (2008).

Three stars for three wise men cont'

Here's a link to a Jurist op-ed by Professor Vic Hansen arguing that the elevation of the Judge Advocates General to three-star rank is an important and laudable change.

New Navy Chief Judge position

NIMJ's web site has this link to an announcement that the Navy has created the new position of Chief Judge of the Navy with supervisory authority over both trial and appellate naval judges. The Chief Judge will retire with a tombstone promotion to one star. The first Chief Judge is expected to be chosen in 2009 or 2010.

One aspect of the announcement stands out from my parochial Marine Corps perspective. Does the reference to the three-year rotation with the Civ Law and Operations & Maintenance AJAG provisions suggest that the Chief Judge will be drawn exclusively from the Navy, Marines need not apply? If so, I think that's regrettable. The current Chief Judge of the Navy-Marine Corps Trial Judiciary is a Marine and other distinguished Marines have served as Chief Judge of the Navy-Marine Corps Court of Criminal Appeals. By making the decision as a youth to join the finest branch of the American military, they shouldn't be exempted from consideration as the Chief Judge of the Navy.

The Kabul Klipper has unbolted the Golden CAAF

Anticipating a possible trip to D.C. in the Golden CAAF's future, here's a picture of the Kabul Klipper himself (in a CAAFlog t-shirt, no less) brandishing the unbolted Golden CAAF.

And a third opinion

On a night when CAAF released its blockbuster opinion in Lopez de Victoria, we can't expect many people to want to go see the small indie release of United States v. Glenn, __ M.J. ___, No. 07-0407/AR (C.A.A.F. Feb. 26, 2008), available here. Glenn deals with the less-than-scintillating issue of whether certain sentencing evidence required the military judge to reopen the providence inquiry to further explore Private Glenn's mental responsibility. In a unanimous opinion by Judge Baker, CAAF says no.

Interesting addendum

In United States v. Michael, __ M.J. ___, No. 07-6005/NA (C.A.A.F. Feb. 26, 2008), available here, CAAF reaches the unremarkable conclusion that a laptop computer found adrift may be opened by military personnel trying to determine its ownership, who do not violate the 4th Amendment by looking at the "recent documents" list in an attempt to find the owner's name.

The more interesting aspect of Michael is Judge Ryan's and Erdmann's concurrence which indicates that having lost the jurisdictional fight in Lopez de Victoria, they will henceforth honor the Lopez de Victoria majority's holding that CAAF does have jurisdiction to review CCA rulings on Article 62 appeals.

Wow

United States v. Lopez de Victoria, __ M.J. ___, No. 07-6004/AR (C.A.A.F. Feb. 26, 2008), available here, is such a joy to read. Both the majority and the dissent bring their A game and make their respective cases as well as they could be made.

The issue that splits the majority of Judge Stucky, Chief Judge Effron and Judge Baker from the dissent of Judge Ryan and Judge Erdmann is whether CAAF has jurisdiction to review a CCA's ruling on an Article 62 appeal. As footnote 3 in Judge Stucky's majority opinion notes, the issue split the government as well -- Code 46 and GAD argued that CAAF had no such jurisdiction, while JAJG argued that it did.

What is perhaps most significant about Lopez de Victoria is that CAAF rejected the government's motion to dismiss on jurisdictional grounds and then reversed ACCA's ruling on the prospectivity versus retroactivity of a 2003 amendment to Article 43's statute of limitations provisions. (CAAF rules that the extension of the statute of limitations applies prosectively only.) Both the jurisdictional issue and the statute of limitations are extremely interesting issues upon which learned jurists can break both ways -- as, indeed, learned jurists in this very case have broken both ways. This -- yes, this, Kabul Klipper -- may finally provide a Golden CAAF winner, since the Solicitor General may want to challenge both portions of CAAF's ruling and a majority of the SG's cert petitions succeed in obtaining review.

So Lopez de Victoria may present us with the question of whether the Kabul Klipper has the guts to unbolt the Golden CAAF from his mantle and actually mail it to Paul Clement. (Of course, if a tiny statute of a golden bovine showed up at Main Justice, it would probably be blown up as a precautionary measure.) I'm betting that someone who had the guts to deploy to Afghanistan is looking up Main Justice's ZIP Code at this very moment.

[DISCLAIMER: I am an appellate defense counsel in a case with a pending motion to dismiss a certification of AFCCA's ruling on an Article 62 appeal -- a motion that we will now lose under Lopez de Victoria.]

BIG news!

Three new CAAF opinions are up on its web site -- including Lopez de Victoria and Michael.

Still another reason to hate Project Outreach

We have had some spirited debates about the pros and cons of Project Outreach. As longtime CAAFlog readers know, to me the biggest pro is the bizarre case of United States v. Cabrera-Frattini. My list of cons is longer. Here's another one to add to the list: appearances at Project Outreach arguments are now apparently being handed out as prizes.

Here's what has me worked up today. On Wednesday evening, CAAF will hear oral argument in the case of United States v. Gallagher, No. 07-0527/MC, at George Mason's law school. The law school's web site tells us that as "part of Project Outreach, the Court will allow Mason Law student Matthew Kuskie, chosen by competition, to submit a brief as amicus curiae and argue for 10 minutes before the Court on behalf of the appellant." Chosen by competition? Is Project Outreach devolving into Project Runway? (Plagiarism alert: I stole that line from a friend of mine.) Did the first runner-up receive a year's supply of Rice-A-Roni?

Competitions to appear before a panel of distinguished jurists should be confined to moot court. Gunny Gallagher is doing 13 years in confinement. It is inconsistent with the solemnity due to both his case and a federal court for an oral argument appearance to be offered as a prize. Appearing at CAAF oral arguments should be limited to counsel for participants and amici who have a true interest in a case or the military justice system. Even if CAAF finds it useful to continue going on the road, it should rethink its practice of hearing oral argument from law students during those trips.

Wilson - The Lost in the Shuffle Post

Once CAAFlog posts his thoughts on Wilson you can discard this footnote to the case from your short term memory. Here goes . . .

After reading Judge Ryan wax philosophically for 24 pages and Chief Judge Effron write 11 pages on a topic with which no one could be more familiar than he, Judge Baker's 5 page dissent in Wilson seems out of place. Yet, it is perfect in its simplicity, especially after reading the prior two works of art.

Essentially, Judge Baker argues that if great minds can differ so greatly regarding the key issue of whether a statutory-regulatory scheme assigns a particular intent level to the elements of an offense (and elements they are my friend!), ought we not use the rule of lenity and construe the ambiguous criminal statute in favor of the accused . . . until the President of Congress fix the ambiguity? While Judge Baker had me at Apprendi, the simple writing style in this dissent (no woodland creatures, ocean adventures, or Dolly Sods here) really hits the mark. Reasonable minds might differ on the substance of the issue in the case, but it is hard to argue with Judge Baker's logic that the tie goes to the guy whose liberty is one the line (though I note for posterity that this accused only got an SPCM, big chicken dinner, and 80 days confinement out of this case).

United States v. Wilson

United States v. Wilson, __ M.J. ___, No. 06-0870/AR (C.A.A.F. Feb. 25, 2008), is a complex and difficult case. That's probably why it was argued twice. The issue is whether a reasonable and honest mistake of fact defense applies to the Article 125 offense, as codified in the MCM, of sodomy with a child under the age of 16.

In an opinion by Judge Ryan, a three-judge majority held that no such defense applies. Chief Judge Effron and Judge Baker separately dissented.

While the three opinions demand study and serious thought, my preliminary assessment is that the majority got it wrong (though I wouldn't be at all suprised if someone can present some law I'm overlooking that demonstrates that, no, it is my preliminary assessment that is wrong).

I reach the same destination as the two dissenters, though by a sometimes diverging and sometimes converging path. Not that my views are important, but for anyone interested, I set them out at length below.

While I believe that this is a jurisprudentially fascinating case and an important one, I think the Kabul Klipper can safely keep his Golden CAAF bolted onto his mantle. I don't see the Supremes granting cert where the accused actually pled guilty to the offense that a cert petition would challenge (though I would be happy if events proved me wrong).

Private Wilson went to a special court-martial where he pled guilty to and was found guilty of various offenses including carnal knowledge and sodomy with a child younger than 16. During the providence inquiry, the military judge advised him that a reasonable and honest mistake as to the age of the girl involved in the sodomy was irrelevant.

As I read the opinion, it says that sodomy with a child under 16 is a strict liability offense -- or, in the words of R.C.M. 916(j), an offense for which "the accused's knowledge or intent is immaterial as to an element" -- rather than a general intent offense. But I see nothing in Article 125 or paragraph 51 of Part IV of the Manual that would separate sodomy from the vast middle ground of general intent offenses. Indeed, what separates sodomy from the old Article 120 rape offense, which military law has long held to be a general intent offense? See, e.g., United States v. Langley, 33 M.J. 278 (C.M.A. 1991). Based on the admittedly non-binding discussion following R.C.M. 916(j), it looks like the Manual's drafters intended the "knowledge or intent is immaterial" provision to apply only to offenses that the MCM specifically established as strict liability offenses, like carnal knowledge and improper use of a countersign. Significantly, neither sodomy generally nor sodomy with a child under 16 specifically receives such treatment in the Manual. From this, I would conclude that sodomy is a general intent offense (as military law has long held; see, e.g., United States v. Herbert, 35 M.J. 266, 268 (C.M.A. 1992); but see United States v. Strode, 43 M.J. 29 (C.A.A.F. 1995)), and that sodomy with a child under 16 is a general intent offense. If so, then the President made the defense of a reasonable and honest mistake of fact defense available through R.C.M. 916(j).

I believe that in deciding whether a reasonable and honest mistake of defense is available, the proper focus is on R.C.M. 916(j). And, if so, then part of the Wilson majority's jurisprudential approach actually appears to support a reasonable and honest mistake of fact defense for sodomy with a child younger than 16.

Please pull out your 1995 MCM. Look at Part IV, para. 45.c(2): "It is no defense that the accused is ignorant or misinformed as to the true age of the female . . .; it is the fact of the girl's age and not his knowledge or belief which fixes his criminal responsibility." Now look at Part IV, para. 51.c. Note the lack of any similar language. In Wilson, the majority tells us that the "Supreme Court has consistently held that '"[Where] Congress includes particular language in one section of a statute but omits it in another section . . . it is generally presumed that Congress acts intentionally and purposely in the disparate . . . exclusion."'" As the Wilson majority's author wrote last year, "It is a well established rule that principles of statutory construction are used in construing the Manual for Courts-Martial . . . ." United States v. Custis, 65 M.J. 366, 370 (C.A.A.F. 2007). Then doesn't it follow that when the President used strict liability language to describe carnal knowledge but didn't use such language to describe sodomy and sodomy with a child younger than 16, then the latter offense is not a strict liability offense? And, even more importantly for current purposes, doesn't the use of such language to describe carnal knowledge suggest that it is an offense that for R.C.M. 916(j)'s purposes makes "knowledge or intent . . . immaterial" while the absence of such language to describe sodomy or sodomy with a child under 16 suggests that Article 125 does not fall within that R.C.M. 916(j) excpetion to the availability of a reasonable and honest mistake of fact defense to a general intent offense?

And the fact that the Manual specifically prohibited a reasonable and honest mistake of defense as to carnal knowledge while not including any such prohibition as to sodomy with a child under 16 offers an alternative rationale for Congress's failure to mention the latter offense while legislating limitations on the former's strict liability status. After all, a Member of Congress in 1996 who wanted a reasonable and honest mistake of fact defense to apply to sodomy with a child under 16 would probably have concluded that the defense was already available without any need for congressional intervention. Of course, I'm not suggesting that any Member of Congress actually went through that thought process. And I thoroughly agree with the Supreme Court's "resist[ance to] reading congressional intent into congressional inaction." Kimbrough v. United States, 128 S. Ct. 558, 573 (2007). But I make this point to demonstrate that Congress's decision to amend Article 120 while leaving Article 125 alone should not be read as somehow reflecting a congressional determination that sodomy with a child under 16 is and should be a strict liability offense.

So, on balance, I would conclude that both sodomy generally and sodomy with a child under 16 are general intent offenses for which the President has made the honest and reasonable mistake of fact defense available. If either Congress or the President didn't like that conclusion, then they could change it -- just as either could change Wilson's result if displeased with its conclusion. Of course, bureaucratic inertia being what it is -- and Article 125 being something of a third rail of military justice, as Chief Judge Effron's dissent alludes to -- suggests that in this instance, CAAF will probably have the final word. That clearly isn't the majority's intent -- the majority interprets the law as those three judges find it; they obviously aren't attempting to impose their will on the Executive or Congress and the majority would no doubt follow the law in the other direction if that's where they thought it led or if the Executive or Congress expressly created a reasonable and honest mistake of fact defense to sodomy with a child under 16. But if the same issue were to arise in some future contested case, perhaps the Kabul Klipper will have to take out his monkey wrench to loosen the Golden CAAF's bolts.

United States v. Cucuzzella

United States v. Cucuzzella, __ M.J. ___, No. 07-0397/AF (C.A.A.F. Feb. 25, 2008), is a medical diagnosis or treatment hearsay exception case without Crawford implications because the declarant testified at trial. Judge Baker wrote for the majority with Judge Stucky concurring in the result and Judge Ryan concurring.

Airman Cucuzzella and his wife attended a new parent program run by a family advocacy nurse aboard an Air Force base. Mrs. Cucuzzella later returned to the family advocacy nurse by herself. After discussing bad check problems, Mrs. Cucuzzella alleged her husband had subjected her to sexual and physical abuse. At trial, over defense objection the military judge admitted the family advocacy nurse's testimony about Mrs. Cucuzzella's statements under the hearsay exception for statements made for the purpose of medical diagnosis or treatment. CAAF agreed.

CAAF emphasized that "as a Family Advocacy Nurse, Ms. Moultrie was engaged in mental health diagnosis and referral." Id., slip op. at 8. CAAF then turned to the issue of whether Mrs. Cucuzzella made her statements with the expectation of receiving medical benefit or treatment. Emphasizing the standard of review and the military judge's superior ability to assess the context in which the statements were made, CAAF held that the military judge's finding were not clearly erroneous when he determined that when Mrs. Cucuzzella spoke to the nurse, she expected to receive counseling help for her marital situation.

In other poetic allusion, Judge Baker wrote:

Learned Hand and Oliver Wendell Holmes both noted that the common law moves with small currents, but through its collective motion, one might well look up to find oneself far from the intended textual and legal shore. In this case, as an appellate court, we have looked up, and still find the legal shore in sight.

Id., slip op. at 11.

Since I prefer the shore to the mountains, I enjoyed this one more than the Dolly Sods simile.

Judge Ryan continued the metaphor, writing in her concurrence: "In my view the facts presented by this case are at the very banks of the legal shore envisioned by the language and purpose of Military Rule of Evidence 803(4) as it has evolved through case law." Emphasizing the standard of review, Judge Ryan also noted that she would have upheld the military judge regardless of whether he held that the statements did or did not fall within the medical diagnosis or treatment hearsay exception.

Judge Stucky separately concurred in the result. While noting that his views were similar to those of the majority, he wrote separately to state, "I do not understand the majority opinion to require military judges, in cases like this one, to engage in a particularized analysis of the reliability of hearsay statements."

United States v. Hall

In United States v. Hall, __ M.J. ___, No. 07-0384/MC (C.A.A.F. Feb. 25, 2008), available here, CAAF accepts the government's concession that the military judge erred by admitting as layperson opinion an NCIS agent's testimony that she believed that burns on the infant victim were a "textbook case of an immersion burn with clear lines of demarcation and a lack of splash marks . . . indicative of non-accidental trauma." But CAAF also agrees with the government that the error was harmless. Hall doesn't appear to reach beyond the narrow fact pattern from which is arose. Judge Baker for a unanimous court.

Three new opinions

There are three new opinions up on CAAF's web site. We'll try to look at them as the evening progresses.

Some comparisons

I can now make some comparisons between CAAF's current Term and recent Terms that I couldn't make on Friday when I couldn't access most of CAAF's web site.

We noted that 65 cases are scheduled for oral argument this Term. Here are the numbers for the previous 5 Terms:

2007 - 55
2006 - 76
2005 - 64
2004 - 57
2003 - 57

So this Term should beat the previous 5 Terms' average of 61.8 decisions.

We saw that the Navy-Marine Corps Court accounts for the lion's share of cases CAAF will review this year. Here's an interesting statistic: not once over the previous 5 Terms has the Army had the lead in number of CAAF cases. The Air Force had more than any other service in the 2007, 2005, and 2003 Terms, while the Deparment of the Navy had more than any other service in the 2006 and 2004 Terms. But if we extend the lens by one more year, the Army had more than any other service in the 2002 Term.

Another North County Times court-martial preview

NIMJ's web site now has a link to this North County Times article about an upcoming court-martial. The poignant story about United States v. Sullivan (no relation) includes questioning by a dead Marine's family about whether the expected punishment in the case is sufficient -- another example of what seems to be an increasingly common complaint that military justice isn't too harsh, but rather takes care of its own. This is a trend that bears watching and thoughtful analysis.

I realize that journalistic accounts aren't always accurate, but from afar it looks like the North County Times is doing an admirable job of covering Camp Pendleton military justice issues -- despite the jarring use of the word "gun" to refer to a rifle.

Happy anniversary

The appeal of the capital court-martial of United States v. Walker was argued at the Navy-Marine Corps Court one year ago today. NMCCA has yet to issue an opinion.

[DISCLAIMER: I served as one of LCpl Walker's appellate defense counsel in 2003.]

United States v. Wuterich preview

NIMJ's web site has link to this lengthy preview of the USMC court-martial of SSgt Wuterich at Camp Pendleton for offenses arising from the Haditha incident.

Is the table set?

CAAF has scheduled two oral arguments for 29 April. These may be the last cases to be argued this Term. If so, CAAF will hear a total of 65 cases during its FY 08 Term.

My treasured colleague Tim "Luke Duke" Cox observed the other day that CAAF has heard oral argument in 50 cases thus far and issued opinions in 19.

Of the 65 cases scheduled to be heard this Term, 26 are appeals from the Navy-Marine Corps Court (including 1 writ appeal). 19 are appeals from ACCA, and one additional case is a certified review of an ACCA decision. 11 are appeals of AFCCA opinions, and another 4 are certified reviews of AFCCA opinions. 4 are appeals of CGCCA opinions.

Looking at the clemency stats

We previously discussed Lieutenant Michael J. Marinello's outstanding article, Convening Authority Clemency: Is It Really an Accused's Best Chance of Relief?, 54 Naval L. Rev. 169 (2007). (And, no, it still doesn't appear to be on a publicly accessible web site.) LT Marinello conducted a random sampling of Navy and Marine Corps cases docketed with NMCCA between 1999 and 2004. He found that in 33% of those cases, the defense put in a clemency request and the request was granted in a little more than 4.3% of those cases (35/807).

MAJ John A. Hamner's article, The Rise and Fall of Post-Trial—Is It Time for the Legislature to Give Us All Some Clemency?, Army Law., Dec. 2007, at 1, is on a publicly available web site. Here's a link. (As an aside, the Naval Justice School's failure to make the Naval Law Review available online probably comes at a cost. If you went to all of the effort to write a law review article, in choosing where to submit it for publication, would you be indifferent as to how easily available it would be on the Web?)

MAJ Hamner's piece has some very interesting data. He looks at computer data accounting for all 9,081 Army courts-martial tried from 2000 through 2006. Id. at 16. He finds that in 28% of those cases, the CA cut the adjudged sentence. But some -- and probably most -- of those cases instances occurred in cases where a PTA compelled to reduce the sentence by that amount. So 28% represents the highest theoretically possible percent of cases resulting in clemency and we are sure that the actual number is much lower. So MAJ Hamner identified a discrete subset of cases in which we can isolate clemency that was likely not required by a PTA: fully contested cases resulting in conviction and clemency. He finds that clemency was granted in 1.7% of fully contested cases resulting in convictions. Id. While the number of such cases is small, the clemency tended to be significant. Again looking at just fully contested cases resulting in a conviction, in the 1.7% of cases where the CA granted clemency, the CA reduced the adjudged confinement by an average of 21%. Id. at 17.

Of course, it is certainly possible that convening authorities grant gratuitous clemency less frequently in fully contested cases than in guilty plea cases where the accused has demonstrated some degree of acceptance of responsibility. But now we have two limited data points, both pointing to clemency averages in the low single digits. As we discussed here, one study -- again looking at only a slice of the total court-martial pie (in this case SPCMs producing a BCD and docketed from 1998 to 2002) -- found that AFCCA, ACCA and NMCCA granted findings or sentence relief in 3% of the cases they decided.

Renewed computer woes?

Is it just me, or can no one access CAAF's daily journal web page?

Judge Meeks quashes USMC court-martial subpoena for 60 Minutes tape

Here's a link to an interesting account.

Merry Christmas

In the same week that the November 2007 Army Lawyer went up online, the December issue went up as well. Here's a link.

And here's a link to the lead article, which will no doubt fascinate any regular CAAFlog readers, who seem to relish nothing more than debating about post-trial review: Major John A. Hamner, The Rise and Fall of Post-Trial—Is It Time for the Legislature to Give Us All Some Clemency?, Army Law., Dec. 2007, at 1. The article provides more valuable data concerning how often convening authorities actually award clemency.

Attempted drunk on duty?

I suspect that many of you sometimes find yourself lamenting that there just isn't sufficient precedent addressing the offense of attempted drunk on duty. Well CAAF is getting ready to help plug that jurisprudential hole. Here are the two issues that CAAF granted on Friday:

WHETHER THE SPECIFICATION UNDER THE ADDITIONAL CHARGE STATES AN OFFENSE FOR ATTEMPTED DRUNK ON DUTY IN VIOLATION OF ARTICLE 80, UNIFORM CODE OF MILITARY JUSTICE (UCMJ).

WHETHER THE EVIDENCE WAS LEGALLY SUFFICIENT TO SUSTAIN A FINDING OF GUILTY TO THE SPECIFICATION UNDER THE ADDITIONAL CHARGE - ATTEMPTED DRUNK ON DUTY IN VIOLATION OF ARTICLE 80, UNIFORM CODE OF MILITARY JUSTICE (UCMJ).

United States v. Snyder, __ M.J. ___, No. 07-0765/NA (C.A.A.F. Feb. 15, 2008). NMCCA's opinion, which sheds a miniscule amount of additional light on the issues, can be found here. United States v. Snyder, No. 200602367 (N-M. Ct. Crim. App. June 7, 2007).

Of course, the most perplexing question about this case is why anyone would charge a Sailor with attempting to be intoxicated on duty. (The intoxication involved methamphetamine use, not alcohol.)

New CAAF opinion

CAAF's decision in United States v. Miergrimado, __ M.J. ___, No. 07-0436/MC (C.A.A.F. Feb. 20, 2008), is now on its web site here. Judge Erdmann for a unanimous court affirming the Navy-Marine Corps Court's decision.

Judge Erdmann's opinion explains that "Miergrimado was charged with attempted premeditated murder. At trial, defense counsel intended to use an 'all or nothing' strategy based on a theory of self-defense."

CAAF "granted review to consider whether the military judge committed error by instructing the members on the lesser included offense of attempted voluntary manslaughter over the defense objection." By the time the case reached CAAF, the accused's legal argument had morphed somewhat. In his CAAF brief, "Miergrimado argued that the lesser included offense instruction was given in error because there is no factual element in dispute that would distinguish the greater offense of attempted premeditated murder from the lesser offense of attempted voluntary manslaughter." And, CAAF tells us, "[a]t oral argument Miergrimado changed course again." Fans of Bill James know that he has a bizarre hatred for twice-baked potatoes. Courts have a somewhat more understandable hatred of twice-morphed legal arguments.

CAAF rejected all three versions of the defense argument. CAAF reasoned that "consistent with the standard set out in Sansone v. United States, 380 U.S. 343, 350 (1965), this court has long recognized that a military judge can only instruct on a lesser included offense where the greater offense requires the members to find a disputed factual element which is not required for conviction of the lesser violation."

Applying Sansone, CAAF considered "whether there is a disputed factual element that distinguishes the greater offense of attempted premeditated murder from the lesser offense of attempted voluntary manslaughter." The court concluded that "premeditation is a distinguishing factual element."

Three stars for three wise men cont'

The Department of Defense has asked the Department of Justice's Office of Legal Counsel to opine as to whether presidential action and/or Senate confirmation is necessary to elevate the three incumbent Judge Advocates General to O-9. Harper's Magazine has this link to the memo asking for the opinion.

A Thought On Law of War Charges

I was reading the Charge Sheet in the case against the alleged Sep. 11th plotters. Two things made an impression from a Mil Jus perspective, first, the charge sheet will re-ignite the debate between Justice Stevens and Justice Thomas in Hamdan over when a war can begin for law of war violations. Of the 169 acts alleged, only a dozen or less happened in a "theater of war" . . . but I digress, because this site is not devoted to military commissions, it is devoted to military justice.

What I am really wondering about, and was prompted to think about by the law of war charges in the September 11th cases, how can the military charge a law of war offense these days without violating basic considerations of notice and due process? Three factors seem to make that impossible, (a) everyone accepts the law of war is not concrete (see Army Operational Law Handbook 2007 [6MB file] at p. 44 re: which human rights are part of the law of war), (b) lawyers within the U.S. government can't even agree on what the law of war is (see conflict between DoD, DoJ, and DoS over the Yoo torture memo here), and (c) lawyers within DoD can't even agree on the application of certain portions of the law of war (for example the dispute over application of the UCMJ and Geneva Conventions in the GWOT, see e.g. here). How can a uniformed (or uninformed) defendant in a court-martial be expected to know what "commit an offense under the law of war" means in an Art. 81 charge? Should Congress excise these charges from the UCMJ?

I take dibs on any copyright for an article on this topic, though it is not a great one.

New Army Lawyer on the streets

Now that Punxatawney Phil has seen his shadow, it's time for the November issue of the Army Lawyer. Now that, JMTGst, is a long winter.

Here's the article that will be of most interest to we military justice wonks:

Major Charles L. Pritchard, Jr., The Pit and the Pendulum: Why the Military Must Change Its Policy Regarding Successive State-Military Prosecutions, Army Law., Nov. 2007, at 1.

Air Force appellate rights form nonsensical

The standard form that the Air Force uses for an Airman to invoke his or her right to appellate counsel makes no sense. The form -- AF IMT 304 (I have no idea what "IMT" stands for -- JMTGst, little help?) -- states in part: "I REQUEST APPELLATE DEFENSE COUNSEL TO REPRESENT ME before the Air Force Court of Criminal Appeals (if my case is referred to it) and to urge in my behalf all efforts or other matters which appellate counsel may discover from the record of trial and accompanying papers." I can only assume that the word "efforts" should read "issues," though the form wouldn't be mistaken for Steinbeck even with that change.

Cert denied x 2

Today's order list includes the denial of cert in two military justice cases:

1) Almejo v. United States, No. 07-955, the sub-jurisdictional case we previously discussed here, here, and here; and

2) Hernandez v. United States, No. 07-8247, a pro se IFP case we previously discussed here.

The other Green motion to dismiss

Here's a link to the other motion to dismiss in United States v. Green. Of course, the motion is technically wrong in saying that there is no mandatory minimum for premeditated murder and felony murder in the military justice system. See UMCJ art. 118, 10 U.S.C. § 918 (2000). What I suspect the motion meant to say is that the convening authority is not bound by the statutory mandatory minimums and may (and in the case of some of Green's alleged co-conspirators, did) approve a sentence less than the statutory mandatory minimum.

U.S. district court vs. general court-martial

NIMJ's web site has a link to one of two motions filed in the U.S. District Court for the Western District of Kentucky in United States v. Steven D. Green. This motion argues that he should be tried by a court-martial, rather than in U.S. district court, on murder and rape charges arising from Iraq. The motion argues that Green was improperly discharged and that court-martial jurisdition is still available.

Eastern District of Virginia abstention case

Judge Leonie Brinkema, of United States v. Moussaoui fame, recently rejected a collateral jurisdictional attack on a court-martial, preferring to abstain pending completion of appellate review. Bishop v. Davis, No. 1:07cv1121 (LMB/TCB) (E.D. Va. Jan. 30, 2008).

Major Bishop maintains that he was discharged before he was court-martialed. The United States maintains that he obtained his discharge fraudulently, and charged him with that as well as some previous travel card hanky-panky. He was found guilty of the two offenses at two separate general courts-martial. If he was validly discharged, neither court-martial had jurisdiction. Apparently while his case was pending before the Air Force Court of Criminal Appeals, Major Bishop sought habeas relief in the Eastern District of Virginia.

Judge Brinkema indicates that Schlesinger v. Councilman doesn't require abstention in this case "because Councilman's rule of exhaustion does not extend to attacks on the court-martial's jurisdiction." But she indicates that Councilman nevertheless "supports the government's general request for abstention by recognizing the unique position held by the military in our country, the intricate set of rules and procedures governing the conduct of servicemen, and the specialized review procedures and autonomous system of military courts created by Congress. . . . The teachings of Councilman lead this Court to conclude that it should abstain from interfering with ongoing military justice proceedings to the greatest extent possible."

She also suggests that the military appellate system is actually more competent to resolve Major Bishop's claims than are Article III courts:

Moreover, considerations of institutional competence favor abstention. In his habeas petition, Bishop argues that he was discharged from the Air Force by operation of law when he was twice passed over for promotion and that his allegedly false representations on the "out-processing checklist" are irrelevant. Resolution of this claim will require an interpretation of federal statutes governing the military and knowledge about Air Force regulations and policies concerning discharge. The military justice system, which includes oversight by the United States Court of Appeals for the Armed Forces, is best suited to address those issues in the first instance.

While abstaining for now, Judge Brinkema concludes, "At the close of [military appellate] proceedings, Bishop may re-file his petition if he remains dissatisfied with the outcome."

A jurisdictional disconnect?

This post will primarily interest our Navy and Marine Corps readers. So Army Lurker (our one token Army reader), please feel free to enjoy this web site while the rest of us explore the finer points of Marine Corps and Navy authority to exercise general court-martial jurisdiction.

Okay, now that it's just we few, we happy few, please pull out or surf to the UCMJ and the JAGMAN. First let's look at Article 22(a)(8). In this provision, Congress authorizes "any other commanding officer designated by the Secretary concerned" to convene a general court-martial. Do we all agree that for our purposes, this establishes two necessary conditions for authority to convene a GCM under this provision: (1) commanding officer status; and (2) SECNAV designation?

Now look at JAGMAN section 0120.a. The section begins by stating, "The Secretary of the Navy, acting under Article 22 (a) (8), UCMJ, has authorized the following officers, when in an active duty or inactive duty training status, to convene general courts-martial." So there's no question that this provision is an exercise of the same authority we looked at above. And everyone on the list meets the second criterion, since this is the SECNAV designation. But look at section 0120.a(2)(c), (d), (e), and (aa). These provisions specify that the Vice Chief of Naval Operations; the Deputy Commander, U.S. Naval Forces, Europe; the Deputy Chief of Naval Personnel; and the Deputy Commander, U.S. Marine Forces Central Command are authorized to convene general courts-martial.

Now I welcome anyone correcting me if I'm wrong about this, but it doesn't appear than any of those four officials is a commanding officer. And even if one or more of those officers is dual hatted, it appears that the JAGMAN gives the convening power to the wrong hat.

If, in fact, any of these officers is not a commanding officer, then any action that official took as a general court-martial convening authority would appear to have been without jurisdiction and therefore void. Perhaps the appellate defense checklist should add a block asking if one of these officials was the CA.

Am I overlooking some obvious point that brings these individuals within Article 22(a)(8)? (I may be -- I have been known to overlook obvious points on occasion.)

Clarifying the relationship between Article 134's clause 3 and clauses 1 and 2

United States v. Medina, __ M.J. ___, No. 07-0096/AR (C.A.A.F. Feb. 14, 2008), is almost certainly the most important of the six cases CAAF has released thus far this week.

In Medina, CAAF holds that unless expressly pled, clauses 1 and 2 of Article 134 are not LIOs of a clause 3 offense. Judge Baker, joined by Chief Judge Effron and Judges Erdmann and Ryan. Judge Stucky dissented.

CAAF also held that in this case, it was insufficient that during the providence inquiry, the military judge elicited Staff Sergeant Medina's agreement that his conduct was actually service discrediting. CAAF reasoned, "while we know that Appellant admitted to service discrediting conduct in the context of pleading guilty
to the violations of Title 18, we do not know whether he would have done so with the knowledge that he was not required to admit his conduct satisfied the alternate theory under Article 134(2)." Id., slip op. at 15-16. CAAF observes that it isn't clear whether Staff Sergeant Medina would have believed his conduct to be service discrediting if it had been legal under federal law. Judge Baker offers this wonderful analogy to illuminate the point:

[T]he Endangered Species Act, 16 U.S.C. § 1531-1544 (2000), authorizes criminal sanctions for taking or possessing, among other things, a variety of wildlife species listed by the Secretary of the Interior as endangered. Presumably, an accused could be charged and could plead guilty to violations of this act under the "crimes or offenses not capital" clause of Article 134, UCMJ. As in this case, he might even agree that his conduct was service discrediting. If, however, on appeal it is discovered that the particular species was, for instance, removed from the list before the date of the alleged offense, then the accused would only stand convicted of conduct that without the express proscription under federal law would not otherwise be criminal under the United States Code.

Medina, slip op. at 16-17.

In his dissent, Judge Stucky offers this trenchant observation: "It is a mystery to me why, after this Court's ten-year history of invalidating convictions for child pornography offenses under clause 3, and of upholding convictions for such offenses under clause 2, we continue to see cases charged under clause 3." I think Professor George Santayana solved that mystery.

Clarifying search and seizure standards for bodily fluids

United States v. Stevenson, __ M.J. ___, No. 06-0934/NA (C.A.A.F. Feb. 14, 2008). Judge Baker joined by Judges Erdmann, Stucky, and Ryan. Chief Judge Effron separately concurring in part and in the result.

In this case, a petty office on the Temporary Disability Retired List who was being treated at a VA medical facility became a suspect in a rape case. As part of his diabetes treatment, his blood was regularly drawn by VA personnel. NCIS officials requested that while the VA had the vein open, they go ahead and draw an extra vial for DNA testing purposes. The VA did so without informing Petty Officer Stevenson that it was taking an extra vial or why.

CAAF frames the dispositive issue as "whether Appellant had an objectively reasonable expectation of privacy in his bodily integrity (i.e., DNA), in light of M.R.E. 312(f)." Id., slip op. at 8. Under MRE 312(f), "evidence found or seized in the course of medical treatment, which is to say, that is incidental to medical treatment, is not subject to suppression." Id. But "the rule is not intended to serve as cover and concealment for law enforcement inquiries or as an exception to otherwise applicable Fourth Amendment requirements." Id., slip op. at 9.

CAAF accordingly holds that "M.R.E. 312(f) is not applicable to the second vial of blood drawn at the VA hospital." Id.

But the case isn't over yet. CAAF remanded the case to the Navy-Marine Corps Court for further consideration of whether evidence derived from a search warrant was impermissibly derivative of the VA seizure or was the result of bad faith misstatements and omissions to the authorizing magistrate.

Exploring the finer points of fraudulent enlistment

CAAF today affirmed the Coast Guard Court's ruling in United States v. Holbrook, __ M.J. ___, No. 07-0350/CG (C.A.A.F. Feb. 14, 2008), which we previously discussed here.

Seaman Holbrook lied on his enlistment form by providing a radically underinclusive account of his preservice drug use. To be found guilty of fraudulent enlistment, one must "knowingly misrepresent[] or deliberately conceal[] a certain material fact or facts regarding [one's] qualifications . . . for enlistment." Manual for Courts-Martial, United States, pt. IV, ¶ 7.b.(1) (2005 ed.). The issue in before CAAF in Holbrook is whether the accused must know of the materiality of the misrepresentation. No, held CAAF. "The question of whether a fact is 'regarding qualifications' for 'enlistment,' and 'material,' is analyzed from the perspective of the service making the decision on the enlistment, note from the perspective of the untruthful applicant." Id., slip op. at 5. CAAF agrees with the Coast Guard Court that "it would be irrational to require that an applicant fully understand the consequences of a truthful statement because it would mean prospective enlistees would need to possess thorough knowledge of the service's enlistment standards and policies prior to applying for and entering active duty." Id., slip op. at 6.

Judge Ryan for a unanimous court.

Two new granted issues

CAAF yesterday granted review of the following issue:

Whether the military judge erred when he denied trial defense counsel’s motion to suppress appellant’s positive urinalysis test result and the evidence derived therefrom.

United States v. Fletcher, __ M.J. ___, No. 04-0465/AF (C.A.A.F. Feb. 13, 2008) (order). Here's a link to the Air Force Court's opinion in the case.

The second case that CAAF granted yesterday looks like a Scott trailer, which is a bit curious because CAAF issued its opinion in Scott yesterday. The issue is:

Whether the addendum to the staff judge advocate's recommendation contains "new matter" not provided to defense counsel for comment, necessitating a new convening authority action in this case.

United States v. Ackley, __ M.J. ___, No. 08-0031/AF (C.A.A.F. Feb. 13, 2008) (order).

Here's a link to the Air Force Court's opinion in the case. It tells us that the SJA advised the convening authority that the "court members who sentenced [appellant] had the best opportunity to judge the severity of the crimes committed and the true character of the airman who committed those crimes." United States v. Ackley, slip op. at 3, No. ACM 36703 (A.F. Ct. Crim. App. Aug 16, 2007).

Will CAAF use Ackley to test the limits of the rather intriguing footnote 3 in the Scott opinion? See United States v. Scott, __ M.J. ___, No. 07-0597/AF, slip op. at 9 n.3 (C.A.A.F. Feb. 13, 2008) ("While we do not disagree that an addendum that actually invited the convening authority to abdicate his duties because the trier of fact had reviewed all clemency materials, whether true or not, would be new matter within the meaning of R.C.M. 1106(f)(7), see [United States v. Catalani, 46 M.J. 325, 328 (C.A.A.F. 1997)], the language at issue in this case falls short of that mark.").

A CAAFlog exclusive: AFCCA's published opinion in United States v. Terry

On 8 February, the Air Force Court issued a published opinion in United States v. Terry, __ M.J. ___, No. Misc. Dkt. 2007-05 (A.F. Ct. Crim. App. Feb. 8, 2008). It's not available yet on the Air Force Court's own web site or on LEXIS, but we have posed a copy on CAAFlog.com. Here's a link.

Terry was an Article 62 appeal of a military judge's ruling dismissing the charges where the government had improperly (but without bad faith) destroyed much of the evidence in the case between the original trial and the retrial following CAAF's reversal of the original trial. See United States v. Terry, 64 M.J. 295 (C.A.A.F. 2007). The Air Force Court reversed the trial judge, holding that he abused his discretion by ordering dismissal as a remedy because the destroyed evidence wasn't apparently exculpatory or of central importance to an issue essential to a fair trial.

CAAF announces its Judicial Conference line-up

Just before pitchers and catchers report to Spring Training, CAAF announced its all star line-up for this year's judicial conference, which will be held 5-6 March at Catholic University's Columbus School of Law. Here's a link to the full schedule. The two biggest stars, of course, are Seth Waxman and Admiral Mullen, both of whom will speak Thursday afternoon. That's a good way to keep attendees from skipping out early.

Huge news week

Of course the week when I find myself without Internet access turns out to be the busiest military justice news week of the year.

I don't have much time tonight, but today CAAF celebrated Valentine's Day by issuing three opinions on top of the three it issued earlier this week. There is also daily docket and Judicial Conference news, as well as a new published CCA opinion. I only have time this evening to note the recent developments -- to get to the heart of the matter, so to speak. To the extent that my colleagues haven't fleshed out the discussion by then, this weekend I'll take a deeper look at some of these developments.

Two New CAAF Decisions: Inevitability and Move Along, Nothing New to See Here

Two new CAAF decisions are available on CAAF's web page, Scott and Wallace. CAAF affirms lower court decisions for the government in both cases. In Wallace CAAF found inevitable discovery trumped Appellant's arguments that he revoked consent, with Judges Baker and Ryan concurring but arguing that the Appellant consented. In Scott, CAAF holds unanimously that an unserved SJAR Addendum did not raise a new matter. CAAFlog had some commentary when CAAF granted Scott on the pragmatic logic of serving all SJAR Addendums here, so expect some commentary tonight.

Proof Madame Secretary Rice Reads CAAFlog

Today's Washington Post featured an article written by Sec State Rice and Sec Def Gates . The article, titled "What We Need Next in Iraq," makes the Executive Branch's case for negotiating a Status of Forces Agreement (SOFA) with the Iraqi governemnt, something we discussed here at CAAFlog last year, and assures the American people that a standard SOFA is the subject of negotiations, nothing else. In what I think is an unprecedented step, the Secretaries go so far as to say:

Nothing to be negotiated will mandate that we continue combat missions. Nothing will set troop levels. Nothing will commit the United States to join Iraq in a war against another country or provide other such security commitments. And nothing will authorize permanent bases in Iraq (something neither we nor Iraqis want). And consistent with well-established practice regarding such agreements, nothing will involve the U.S. Senate's treaty-ratification authority -- although we will work closely with the appropriate committees of Congress to keep lawmakers informed and to provide complete transparency. Classified briefings have already begun, and we look forward to congressional input.
In short, nothing to be negotiated in the coming months will tie the hands of the next commander in chief, whomever he or she may be. Quite the contrary, it will give the president the legal authority to protect our national interest -- and the latitude to chart the next administration's course.

On a day when we pass our sympathy to Sec Def, we know exactly how his shoulder feels today, I think we should also give a BZ to Sec State and Sec Def. The idea that our leaders actually tell us why they are doing what they are doing and explain their actions is . . . a great idea. BZ to the Secretaries!

New CAAF decision on command influence

A new decision is out from CAAF today: United States v. Reed.

The sole granted issue was whether Master Sergeant Reed's conviction, which stemmed from his claims for BAH at the married rate while he was actually divorced, was tainted by unlawful command influence. According to a unanimous court, the short answer is "no."

Some time prior to the appellant's trial, the convening authority sent an email to his subordinates addressing disciplinary issues in the command. The email included a slide presentation that included the following admonition: “Senior NCO and Officer misconduct -- I am absolutely uncompromising about discipline in the leader ranks.” A subsequent slide listed "BAH Fraud" as an example of such misconduct. The trial defense counsel also presented evidence that a “Newcomer’s Briefing” included a statement to the effect that “BAH fraud is an automatic courtmartial [sic] referral here.”

The trial counsel countered with a follow-up email sent by the convening authority explaining the "absolutely uncompromising" language of the slide presentation: "What that means simply is that I will abide by and enforce Army regulations and the Uniform Code of Military Justice as I swore to in my oath and as I am chartered to do as a commander. I will not look the other way, nor apply special dispensation on infractions by leaders ... that does NOT mean that each case is handled in the same manner or will have identical outcomes."

CAAF noted the "extensive" litigation at trial on this issue. The Article 32 IO and the officers in the appellant's chain all testified that they exercised independent judgment in their handling of the case without regard to any perceived command policy on BAH fraud. The military judge also permitted extensive voir dire of the members to determine whether they were influenced by the "command climate." Writing for the court, Chief Judge Effron concluded that even assuming that the evidence raised at trial raised the appearance of unlawful command influence, the government met its burden of proving beyond a reasonable doubt the absence of actual UCI.

CAAF: Mopping up stale beer again

CAAF appears to be continuing the effort to clean up the CAAF bar and rid itself of attorneys that committed misconduct in their home states and were suspended or disbarred there. The latest is Carroll Ansell Gantt, Jr. who, while having a lot of double letters in his (her?) name, according to the South Carolina Supreme Court's website committed three violations of the South Carolina Rules of Professional Conduct. Strangely the South Carolina Supreme Court opinion on the subject does not show CAG as a Jr., hope someone didn't mess that up.

That's all from the Houston airport, yes other CAAFlog contributors travel, as well. More from my next stop tomorrow, New Orleans.

To paraphrase Ray Charles, Hit the road Jack and don't you come back 'til Friday

I'm off TDY at some point tomorrow afternoon. I don't expect to be back until very late on Friday and I'm unsure of my Internet access during my absence from the CAAFlog command post. So I hope my colleagues will keep you informed and entertained over the next week. If not, with prospects good for an end to the Writers Guild's strike, you might be able to ease your CAAFlog separation anxiety with "The Daily Show" (instead of "A Daily Show").

A military justice bestiary

Judge Cox was certainly the master of the animal metaphor. But he's hardly the only military appellate judge to employ beasts -- real or imagined -- to vividly make a point.

Here are a few of my favorites. I'll set out the beast, followed by its definition, and then -- in OED fashion -- the first known military justice use of the term or concept. If you have other good examples, please post them.

800-pound gorilla: a very powerful beast with superhuman (or superjudicial) power to protect a convicted servicemember. "Moreover, Courts of Military Review are something like the proverbial 800-pound gorilla when it comes to their ability to protect an accused." United States v. Parker, 36 M.J. 269, 271 (C.M.A. 1993) (majority opinion by Judge Cox).

Duck: a web-footed swimming bird of the family Anatidae characterized by a flat bill, short legs, and instinctive attraction to the water that displays a penchant to smuggle civilian legal terms and principles into the military justice system. "Many [military lawyers] have certainly taken to so-called 'civilianization' of the United States military justice system like ducks to water." United States v. Jones, 7 M.J. 806, 808 (N.C.M.R. 1979) (majority opinion by Senior Judge Dunbar).

Elephant-trunked camel: 1. a large humped ruminant quadruped of the genus camelius whose hump sports the long, flexible cylindrical nasal appendage of an elephant. 2. an evolutionary mistake. 3. the mixing of civilian with military law. "To apply civilian concepts of pendency of appeal within the statutorily constructed scheme of the UCMJ is to graft the elephant's nose to the camel's hump." United States v. Roettger, 16 M.J. 536, 545 (A.C.M.R. 1983) (Judge Coker, dissenting).

Hound dog rule: an inclination to exercise a peremptory challenge because a court-martial member just doesn't smell right. "The only thing that bothers me about this is that I don't know what impact it will have on the 'Hound Dog Rule.'" United States v. Santiago-Davila, 26 M.J. 380, 393 n* (C.M.A. 1988) (Cox, J., concurring).

Kangaroo court: that which a court-martial is not. "This was no 'kangaroo court.'" United States v. Davis, 46 M.J. 551 (N-M. Ct. Crim. App. 1997) (majority opinion by Judge Oliver).

Orangutan: an arboreal long-haired anthropoid ape that would be unlikely to satisfy the Article 25 criteria for court-martial members. "No doubt there are limits to waiver; if the parties stipulated to trial by 12 orangutans the defendant's conviction would be invalid notwithstanding his consent, because some minimum of civilized procedure is required by community feeling regardless of what the defendant wants or is willing to accept." United States v. Weasler, 43 M.J. 15, 18 (C.A.A.F. 1995) (majority opinion by Judge Crawford) (quoting United States v. Mezzanatto, 513 U.S. 196, 203 (1995) (majority opinion by Justice Thomas) (quoting United States v. Josefik, 753 F.2d 585, 588 (7th Cir. 1985) (majority opinion by Judge Posner))).

Pink elephant: a large five-toed pachyderm of a markedly non-standard color that, while fictitious, is still difficult to ignore. "Unfortunately, it may well be that such an instruction is akin to one to ignore the pink elephant that just walked across the courtroom." United States v. Welker, 44 M.J. 85, 92 (C.A.A.F. 1996) (Senior Judge Everett, dissenting).

Skunk: a small North American mammal of the weasel family that produces a malodorous scent when struck by an automobile. "These cases are very similar to running over a skunk while driving your car. You might not ever see the beast, but you certainly can smell it." United States v. Wales, 31 M.J. 301, 311 (C.M.A. 1990) (Judge Cox dissenting in part and concurring in the result).

They're ba-a-a-a-a-a-ck

CAAF's web site and the Air Force Court's web site are back online.

CGCCA reverses conviction due to unexplored lack of mental responsibility defense

In United States v. Johnson, __ M.J. ___, No. 1254 (C.G. Ct. Crim. App. Feb. 7, 2008), the Coast Guard Court holds:

Appellant argues that the military judge’s failure to explain the defense of lack of mental responsibility rendered his pleas invalid after Mr. Perles, Appellant’s substance abuse counselor, testified that he suffered from a serious mental illness that predisposed him to abusing illegal drugs and raised questions regarding his ability to distinguish between right and wrong. Based on our careful review of the record, we agree with Appellant that the defense of lack of mental responsibility was raised at trial and that the military judge committed prejudicial error in failing to explain the defense to Appellant.

Id., slip op. at 7 (footnote omitted).

The court noted that portions of the record

point to a linkage between the accused’s mental illness and his criminal conduct, which the military judge did not identify or examine in any meaningful way. We note that in his unsworn statement, Appellant directly contradicted parts of his earlier testimony about the beginning of his offenses, saying, "I started using drugs to self-medicate because I was completely sad at this point . . . . [A]t this point, I was hearing voices, seeing things that weren’t there. It just left me broken. I was a mess pretty much." . . . In addition, there is significant documentation in the record, both prior to and during trial, that Appellant was receiving medication and treatment for serious, long-term mental illness.

Id., slip op. at 10.

Additionally,

a defense witness, Mr. Perles, the Clinic Director for the Army Substance Abuse Program at Fort Hamilton and Appellant's substance abuse counselor, testified at length during the defense sentencing case that Appellant was a chemical substance abuser whose “major depressive disorder and schizophrenia,” as manifested through anxieties, fears, and depressions, rendered him susceptible to self-medication through the use of illegal substances. . . . Mr. Perles opined that Appellant could distinguish between right and wrong "most of the time," but qualified his statement by noting that Appellant had reported having hallucinations and had "a schizophrenic piece to him that could sometimes take precedent."

Id., slip op. at 10-11.

The court also noted that "other defense submissions in the record refer to Appellant’s mental illness and ongoing mental health treatment." Id., slip op. at 11.

The court emphatically concludes:

Considering Appellant's in-court statement that he was hearing voices, having hallucinations, and self-medicating with illegal substances to cope with his depression at the time of his misconduct, in conjunction with Mr. Perle's testimony and Defense Exhibits B, C, and D, we have little difficulty concluding that the record raises a substantial basis for questioning the guilty pleas.

CGCCA holds two CGIS agents' five-minute conversation in front of a suspect for the admitted purpose of getting him to reinitiate isn't interrogation

A CAAF grant in United States v. Bonilla, __ M.J. ___, No. 1259 (C.G. Ct. Crim. App. Feb. 7, 2008), is almost as certain as a Patriots victory in Super Bowl XLII. Wait a second . . . .

Cases about invocation of the right to counsel during custodial interrogation are cat nip to appellate judges. Think of how rarely the Supremes grant cert in CAAF cases. So rarely that the Kabul Klipper has been waiting almost SIX YEARS since bestowing the last Golden CAAF award. See O'Connor v. United States, 535 U.S. 1014 (2002) (GVR). There are probably more trees at Dolly Sods with branches on both their west and east sides than there have been military cert grants. And yet the Supremes have granted cert in three military cases dealing with invocation of counsel during custodial interrogation. Indeed, the very first cert grant under the Military Justice Act of 1983 was a GVR in an invocation case. See Goodson v. United States, 471 U.S. 1063 (1985) (GVRing for further consideration in light of Smith v. Illinois, 469 U.S. 91 (1984)). One of the eight case in which the Supremes have granted plenary review of CMA/CAAF decisions was a rights invocation case. Davis v. United States, 512 U.S. 452 (1994). And the Supremes have GVRed in at least one additional military invocation case. Jordan v. United States, 498 U.S. 1009 (1990) (GVRing for further consideration in light of Minnick v. Mississippi, 498 U.S. 146 (1990)).

Added to that, Bonilla is a split published opinion. Plus, it's really interesting. And the Coast Guard Court's decision is deeply and disturbingly wrong.

Seaman Bonilla was already facing marijuana use and distribution changes -- and already represented by a military lawyer in connection with those charges -- when he was apprehended for communicating a threat to kill a senior chief. But when a Coast Guard Police Department officer advised him of his rights, he didn't tell him the offense of which he was suspected. Seaman Bonilla said he wanted a lawyer.

About five hours later, two CGIS agents showed up in the interrogation room. They knew Bonilla had invoked. The Bonilla majority tells us: "As a result, they did not direct any questions to Appellant, but the two agents engaged in idle conversation about the case. Special Agent Mullinax testified that he hoped this conversation would result in SN Bonilla reinitiating discussions about the case." And, what do you know, he was right. "Within five minutes, Appellant asked one of the agents, 'Sir, can I ask what this is about?' The agents replied that they could not speak with Appellant unless they read him his rights and he was willing to waive his rights. Appellant agreed to do so." Bad decision.

Relying primarily on Oregon v. Bradshaw, 462 U.S. 1039 (1983), Judges Kantor and Tucher reject a challenge to the conviction and award a best supporting actor Oscar to Special Agent Mullinax. Oh, they offer the obligatory "tsk, tsk," calling the special agents' conduct "boderline." But ultimately they hold that Seaman Bonilla reinitiated.

If a five-minute set piece conversation between two special agents played out in a small interrogation room conducted for the admitted purposed of getting the suspect to start talking doesn't constitute de facto interrogation, then we should just abandon the charade and say that interrogators are free to try again after the accused invokes. That would be a perfectly defensible rule. To turn again to David Simon, if Miranda was

an attempt to "dispel the compelling atmosphere" of an interrogation, then it failed miserably. And thank God. Because by any standards of human discourse, a criminal confession can never truly be called voluntary. With rare exception, a confession is compelled, provoked and manipulated from a suspect by a detective who has been trained in a genuinely deceitful art. That is the essence of interrogation, and those who believe that a straightforward conversation between a cop and a criminal--devoid of any treachery--is going to solve a crime are somewhere beyond naive. If the interrogation process is, from a moral standpoint, contemptible, it is nonetheless essential.

David Simon, Homicide 199-200 (1991).

That makes a lot of sense. And maybe Edwards v. Arizona, 451 U.S. 477 (1981), should be overturned to allow Special Agents Mullinax and Head to repeat their performances as often as your local dinner theater presents Camelot. But as long as Edwards remains the governing law to which every court in this land owes fealty, we shouldn't pretend that the "Mullinax and Head Show" meets its requirements.

If CAAF takes this case, perhaps it will end up at the Supremes. Perhaps it will lead to Edwards being overturned. Or perhaps the Supremes will clarify that Oregon v. Bradshaw doesn't permit staging the "Mullinax and Head Show" to coax the suspect to reinitiate, leading Justice Scalia to decry the addition of another tower onto the "veritable fairyland castle of imagined constitutional restriction upon law enforcement." Minnick, 498 U.S. at 166 (Scalia, J., dissenting). But as long as governing law provides that a suspect who has invoked can't be interrogated without counsel unless the suspect "initiates further communication, exchanges, or conversations with the police," Edwards, 451 U.S. at 485, we shouldn't pretend that the "Mullinax and Head Show" doesn't violate that rule.

Chief Judge McClelland dissents on this point, with an interesting twist. Her prime concern is with the initial failure to advise Seaman Bonilla of the offense of which he was suspected, as required by Article 31 and, Chief Judge McClelland argues, R.C.M. 304(a). It was only that failure that led Seaman Bonilla to ask what he was being held for. And asking for that information to which he was legally entitled should not be considered reinitiation of interrogation.

Yeah, as CAAF reminded us in Freeman, it's okay for interrogators to lie to the suspect. And Justice Scalia may be right that we should "rejoice at an honest confession, rather than pity the 'poor fool' who has made it; and we should regret the attempted retraction of that good act, rather than seek to facilitate and encourage it." Minnick, 498 U.S. at 167 (Scalia, J., dissenting). And, as David Simon maintains, overlooking the immorality of the interrogation process may be essential. But we shouldn't pretend that our system is adhering to the law when it isn't. If Mr. Bumble is right that "the law is a ass," then call the law a ass. Write a dubitante majority opinion busting the conviction if that makes you feel better. But don't call an ass a thoroughbred and then enter it in the Preakness Stakes -- not even if you call it a "borderline" thoroughbred.

2 new published Coast Guard Court opinions

United States v. Bonilla, __ M.J. ___, No. 1259 (C.G. Ct. Crim. App. Feb. 7, 2008)

United States v. Johnson, __ M.J. ___, No. 1254 (C.G. Ct. Crim. App. Feb. 7, 2008)

Resource alert -- good news and bad news

Which do you want first, the good news or the bad news?

The good news: there's a new issue of the Naval Law Review on NKO and it has several articles of interest to military justice practitioners. Here are the most interesting:

LCDR David M. Gonzalez, The Continuing Fallout from Crawford: Implications for Military Justice Practitioners, 55 Naval L. Rev. 31 (2008)

LT Keith B. Lofland, The Neglected Debate Over Sexual Assault Policy in the Department of Defense, 55 Naval L. Rev. 311 (2008)

LT Jessica Hudson, ENS Kyle Fralick & 1stLt John A. Sautter, Lightening But No Thunder: The Need for Clarity in Military Courts Regarding the Definition of Mental Retardation in Capital Cases and for Procedures in Implementing Atkins v. Virginia, 55 Naval L. Rev. 359 (2008)

The issue also includes two articles about the Military Commissions Act of 2006 and a few cats and dogs naval op law and military personnel law articles.

Now the bad news: the issue isn't on the NJS web site or in the Navy JAG reading room. Heck, volumes 54 and 53 of the Naval Law Review aren't even on the Naval Justice School's web site. If anyone wants to read one of the articles from the new volume, let me know and I may be able to get you a copy.

Military justice practitioners will also be interested in Professor Hillman's new article in the University of Minnesota Law School's Law and Inequality: A Journal of Theory and Practice. Elizabeth L. Hillman, Gentlemen Under Fire: The U.S. Military and "Conduct Unbecoming," 26 Law & Ineq. J. 1 (2008).

Erdmann/Baker on implied bias, or Hello Dolly Sods

United States v. Townsend, __ M.J. ___, No. 07-0229/NA (C.A.A.F. Feb. 5, 2008), isn't an earth-shattering case. It breaks no new legal ground, but rather applies existing implied bias case law to the facts of this case and upholds allowing the challenged member to sit. But much like United States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006), Townsend is more interesting for Judge Baker's separate opinion than for its actual holding.

The implied bias challenge to "LT B," who was a night law student, was based on his desire to become a prosecutor to "put[] the bad guys in jail" and "keep the streets safe," his dislike of civilian defense counsel based on watching Law and Order, his father's law enforcement status, and his "healthy respect for law enforcement, and people in authority." Id., slip op. at 3-4. But Petty Officer Townsend was represented by a military defense counsel, not a civilian, and LT B affirmed his "belief that Townsend was innocent until proven guilty beyond a reasonable doubt." Id., slip op. at 4. LT B also assured the court that "he would be able to follow the military judge's instructions if they differed from information he had learned at school," and that he "would try to be objective about everything." Id. LT B also said that he would not automatically believe the testimony of a law enforcement officer. Id. at 5. (Interestingly, though I don't see this mentioned in the opinion's analysis, Petty Officer Townsend was a Master-at-Arms.) The defense challenged LT B for cause, the military judge (CAPT Rolph) denied the challenge, and the defense peremptorily challenged a different member.

CAAF initially held that it would accord the military judge's decision diminished deference because he did not indicate on the record either that he had considered the implied bias issue (as opposed to actual bias) or that he had applied the liberal grant mandate in ruling on the challenge. Id., slip op. at 9-10. The majority also reasoned that because actual service in a law enforcement capacity is not a per se disqualification from serving as a member, merely being related to a law enforcement official cannot be per se disqualifying either. Id., slip op. at 10. The majority similarly reasoned that a lawyer isn't per se disqualified unless he or she has served in a specific disqualifying role, so an aspiring lawyer is not per se disqualified. Id., slip op. at 11. CAAF concluded that neither any individual matter raised nor all the matters considered cumulatively rose to the level of implied bias.

Judge Baker wrote a separate decision "dubitante" in which he "reluctantly" concurred. Judge Baker's first sentence makes his position clear: "The liberal grant mandate exists for cases like this." To Judge Baker, while the military judge did not abuse his discretion by rejecting the challenge, he sure should have granted it.

Judge Baker reviewed many of the individual factors that might have influenced LT B's outlook and then offered this poetic simile: "As with the trees at Dolly Sods, the wind only blows in one direction." (I had to look it up: Dolly Sods is an area in West Virginia's Allegheny Mountains where, according to wikipedia, "strong winds blowing continuously from the west have caused some trees to have branches only on the east side (they are 'flagged')."

Judge Baker's opinion included an aggressive restatement of the reasons for the liberal grant mandate (which, as the majority reminds readers, applies only to challenges lodged by the defense):

First, in a system of panel selection where the convening authority selects the pool of members and the parties only have one peremptory challenge, application of the liberal grant concept helps to address questions that may linger in public perception regarding the appearance of bias in the selection of members.

Second, this court-martial took place at Norfolk Naval Station [the largest Navy base in the world]. There is no indication that there were national security reasons why the potential pool of members was small, perhaps necessitating a "tie goes to the government" approach on implied bias.

Third, appellate review of member challenges is an ungainly, if not impractical, tool to uphold and reinforce the importance of Rule for Courts-Martial (R.C.M.) 912 in military justice practice. Among other things, appellate courts do not have the benefit of hearing the tone of a response or to observe the demeanor of voir dire responses. Further, where matters of appearance and nuance rather than clear error are involved, courts might well be hesitant to reset the clock. And yet, from within the system, it may be particularly hard to discern the extent to which member selection is viewed in public circles as a weak link in the otherwise strong chain of military justice. Hence, trial judges are repeatedly enjoined at the appellate level to consider questions of implied bias and to do so on the record.

As we have previously noted, Judge Baker has authored a large part of CAAF's recent jurisprudence dealing with member challenges. I suspect that we will soon see portions of his dubitante opinion appearing in opinions for the court.

New CAAF decision

United States v. Townsend, __ M.J. ___, No. 07-0229/NA (C.A.A.F. Feb. 5, 2008). Judge Erdmann writing for a 4-0-1 court, affirming ruling that the military judge did not err by failing to bounce a member for implied bias. More in a follow-on post.

Is that an Afghan SOFA you have?

In a previous CAAFlog discussion, here, we have mentioned the lack of a Status of Forces Agreement between the United States and Afghanistan. I was still under the impression that no SOFA between the U.S. and Afghanistan was in place . . . until yesterday. In an interview with the Associated Press, Ambassador to Iraq Ryan Crocker seemed to indicate that such a SOFA did exist. Here is the excerpt:

QUESTION: Is -- given the unprecedented nature of the -- well, except for perhaps Afghanistan and dealing with it, is there a model or something that you can look to, obviously with revisions for the country specific, is there anything out there that resembles this already? You talk about security agreements with a hundred other countries, but essentially, you know, there's no combat going on in South Korea, there's no combat in Japan, there's no combat in lots of places where there's SOFA agreements.
CROCKER: I think it's going to be a combination of all of those things. Again, looking at agreements that we do have because there are going to be elements of those that are probably pretty common across the board, it will be looking at existing authorities which again are granted through the Security Council Resolution, but figuring out how best to carry those forward from a multilateral to a bilateral context. Looking at precedents in Afghanistan is the one that comes to mind and might be useful there. But then a lot of this is going to be unique to the situation in Iraq.
QUESTION: And what does this do -- and what will it do with CPA 17, particularly the contractor issue?
CROCKER: Yeah, the question of immunities? Yeah, that clearly is going to be part of the negotiation.
QUESTION: Is that included in the Afghan agreement?
CROCKER: I don't know. I don't know. I don't believe the Afghan agreement goes into detail on the immunity issue.

(emphasis added) See the full roundtable transcript here. You tell me, does that suggest there is a signed Afghan-U.S. SOFA? He seemed to back pedal in that last answer, as if he had said something he shouldn't have, or did he just mispeak? If any of our intrepid readers have gouge on this topic please share in the comments, exactly why we allow anonymous comments.

New published AFCCA opinion

The Air Force Court's web site has been down longer than a sub transiting the Artic Ocean, but I've been able to lay my hands on a hard copy of a published opinion that the Air Force Court released last week. United States v. Gladue, __ M.J. ___, No. ACM 36580 (A.F. Ct. Crim. App. Jan. 30, 2008). I won't be able to analyze it and comment on it until tomorrow night; I also welcome one of my blog colleagues to beat me to the punch. Here's a link.

WaPo editorial on United States v. Whiteside

Today's Washington Post includes an editorial headlined "Military Justice," with this subhead: "Why did it take a near-tragedy for the Army to do the right thing in the Whiteside case?" Here's a link. We previously discussed the Whiteside case here, here, here, and here.

The Post writes: "Distraught about her legal limbo, [1LT Whiteside] attempted suicide last Monday, and, with The Post again looking into the circumstances, the charges were finally dropped." The Post concludes: "The mishandling of this case is indicative of a military culture dismissive of psychiatric ills as real sickness. Those who seek treatment are too often stigmatized and punished. How else to explain the worry of service members who say they fear being labeled as weak? Think of the message that was sent by the Army's pursuit of Lt. Whiteside and its apparent reluctance to do the right thing."

NMCCA's Salinas opinion

On 29 January 2008, NMCCA affirmed the findings and sentence in a published opinion in United States v. Salinas, __ M.J. ___, No. NMCCA 200700331 (N-M. Ct. Crim. App. Jan. 29, 2008).

Salinas is yet another ugly and depressing child sex abuse case involving a stepfather convicted of preying on his six-year-old step-daughter. The girl was treated by a licensed family therapist for a year. That therapist's testimony at Petty Officer Salinas's court-martial resulted in the issues that NMCCA's opinion addresses.

NMCCA noted that the admissibility of statements under the medical diagnosis or treatment hearsay exception is governed by a two-part test: (1) "the statements must be made for the purposes of 'medical diagnosis or treatment'"; and (2) "the patient must make the statement 'with some expectation of receiving medical benefit from the medical diagnosis or treatment that is being sought.'" Salinas, slip op. at 4 (quoting United States v. Rodrigues-Rivera, 63 M.J. 372, 381 (C.A.A.F. 2006)).

The principal issue regarding the first prong of the test was whether a statement identifying the perpetrator's identity was made the purpose of medical diagnosis or treatment. NMCCA held that because the alleged abuser was in the patient's household, it was:

It is true that under some circumstances, the specific identity of an assailant might be immaterial to psychological diagnosis and treatment of trauma resulting from a sexual assault. However, where, as here, a member of the household is the alleged offender, the situation is different. While Dr. Borrego's testimony could have been directed more precisely to address this aspect of [the step-daughter's] treatment, the testimony that was elicited is a sufficient basis upon which to conclude that Dr. Borrego needed to know the information about which she inquired in order to properly structure [the step-daughter's] treatment and to ensure that [her] treatment was not compromised by additional encounters and with the perpetrator.

Salinas, slip op. at 8 (internal citations omitted).

As to the second prong, NMCCA concluded that the step-daughter understood that the therapist was a doctor who was trying to help her, thus brining her statements to the therapist (Dr. Borrego) within the medical diagnosis or treatment hearsay exception. Id., slip op. at 8-9.

NMCCA also rejected a defense challenge that the step-daughter's statements to Dr. Borrego were too temporally attenuated from the alleged abuse to qualify under the medical diagnosis and treatment exception. NMCCA both disagreed with the substance of that argument, noting that the step-daughter's first statement to Dr. Borrego was made three months after the alleged abuse occurred, followed by four more statements "over the course of treatment sessions during the year preceding trial. Id., slip op. at 10. NMCCA also questioned whether the temporal attenuation analysis under United States v. Quigley, 35 M.J. 345 (C.M.A. 1992), remains good law. See Salinas, slip op. at 9. n.6.

But NMCCA did hold that the military judge erred by allowing Dr. Borrego to testify to the members that she had diagnosed the step-daughter as suffering from Post-Traumatic Stress Disorder (PTSD). Citing Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), NMCCA held that "there was insufficient foundation elicited regarding Dr. Borrego's qualifications and the scientific methodology of how she arrived at the diagnosis she tendered in court." Id., slip op. at 13 & n.10. "Similarly, the basis of her conclusion and the relevance of PTSD in this case were not clearly established." Id., slip op.a t 13. NMCCA also observed that the government never actually offered Dr. Borrego as an expert for purposes of her testimony on the merits. Id. Nor did the military judge accept her as an expert for purposes of her testimony on the merits. Id. Nor did the military judge conduct a Military Rule of Evidence 403 analysis. Id. NMCCA therefore concluded "that Dr. Borrego's reference to PTSD was not properly admitted as expert testimony." Id. The court, however, went on to hold that that error was harmless beyond a reasonable doubt. Id., slip op. at 14-16.

Punxsutawney Phil saw his shadow, so six more weeks of winter

Happy Groundhog Day (the official holiday of the Navy-Marine Corps Appellate Defense Division) to Code 45 alumni wherever you may be.

Some stylistic observations

BZ to Judge Stuky for another opinion written in Garnerian BLUF (bottom-line-up-front) fashion. (BLUF is actually an Army acronym, but it is a nice shorthand for Garner's recommended opinion style.) See United States v. Freeman, __ M.J. ___, No. 06-0833/AF, slip op. at 2 (C.A.A.F. Feb. 1, 2008). And a double BZ for not including a rote recitation of the granted issues in all caps starting with the word "WHETHER," but rather explaining the granted issues in lucid prose at the outset.

And another BZ to Judge O'Toole of NMCCA for setting out the assignments of error using the more readable standard capitalization rather than all caps. See United States v. Salinas, __ M.J. ___, No. NMCCA 200700331, slip op. at 2 n.1 (N-M. Ct. Crim. App. Jan. 29, 2008).

Happy anniversary?

My foray into NKO tonight didn't turn up empty. I found a new NMCCA published opinion that I've posted on CAAFlog.com. But I still didn't find an opinion in Walker. The case was heard on 23 February 2007, so we're closing in on the argument's first anniversary. Any scuttlebutt? Any speculation?

CAAF okays lies as an interrogation technique

In United States v. Freeman, __ M.J. ___, No. 06-0833/AF (C.A.A.F. Feb. 1, 2008), CAAF affirms the Air Force Court's opinion rejecting a challenge to the admissibility of a confession, the military judge's denial of a defense expert assistance request for an interrogation consultant to help the defense mount a false confession argument, and finding the admission of certain uncharged misconduct harmless. Judge Stucky wrote for a unanimous court. Here's a link to the opinion.

The expert assistance issue was probably the most important of the three. The court sets out a two-part test (one part of which has three sub-parts) that the defense must satisfy to receive expert assistance. "[T]he accused has the burden of establishing that a reasonable probability exists that (1) an expert would be of assistance to the defense and (2) that denial of expert assistance would result in a fundamentally unfair trial." Freeman, slip op. at 19. "To establish the first prong, the accused 'must show (1) why the expert assistance is needed; (2) what the expert would accomplish for the accused; and (3) why the defense counsel were unable to gather and present the evidence that the expert assistance would be able to develop.'" Id. (quoting United States v. Bresnahan, 62 M.J. 137, 143 (C.A.A.F. 2005)). CAAF held that the defense failed to establish that the defense counsel themselves couldn't gather and present the false confession evidence without an expert's assistance. The court reasoned, "[W]hat defense counsel really wanted was knowledge of interrogations that they could have obtained themselves. They failed to establish why they were unable to gather the relevant information and cross-examine the investigators on their interrogation techniques and their use of those techniques in eliciting a confession." Id., slip op. at 22.

CAAF doesn't seem to be saying that the defense can never obtain expert assistance in a false confession case. Rather, the court seems to say that under these particular facts, the military judge didn't abuse his discretion by finding that the defense counsel could have done it themselves. This provides an important litigation tip to defense counsel: in moving for expert assistance, emphasize specialized training and knowledge beyond what the defense counsel could reasonably be expected to develop himself or herself. Obviously this will be harder when dealing with a subject like interrogations, with which criminal litigators would have substantial experience. Perhaps having the expert emphasize some subtle points of potential psychological coercion would work.

Has anyone successfully obtained an interrogation consultant? If so, what arguments did you advance?

The second issue in the case is certainly the least important. Under the facts of this case, CAAF agreed with the Air Force Court that the admission of uncharged misconduct was harmless.

The remaining issue isn't the most important, but it's probably the most interesting. During their interrogation of Senior Airman Freeman, the OSI "agents lied to Appellant: They [falsely] claimed to have witnesses who saw him out that night and that his fingerprints had been found at the crime scene. They advised him they would tell his commander whether he had cooperated and threatened to turn the case over to civilian authorities, where he would face stiffer punishment." Freeman, slip op. at 15. The OSI agents' precise threat regarding civilian law enforcement authorities was, "[I]f you don't tell the truth, the case will go downtown and with a civilian victim you could get five years in jail." Id., slip op. at 11. Coincidentally, SrA Freeman's adjudged and approved court-martial sentence included confinement for five years.

And here's an irony: SrA Freeman was convicted of not only aggravated assault, but also making a false official statement. Presumably the evidence that supported that finding was obtained via the lies that the OSI agents told him.

Regardless of the irony or morality of what occurred, there is little doubt about its constitutionality (or, as ACCA would say, Constitutionality; does ACCA also write unConstitutional?). CAAF concludes that "[u]nder the totality of the circumstances, Appellant's confession was voluntary." Id., slip op. at 15.

Reading about SrA Freeman's interrogation reminded me of a passage in David Simon's Homicide that provides the best explanation I've ever seen of why guilty people waive their right to remain silent, turn down a free lawyer, and confess to crimes -- a distinct question from this case's rejected expert's assignment of explaining why an innocent person would confess. David Simon and I were on our college newspaper's staff together, and it was already apparent then what fans of Homicide, The Corner, and The Wire know -- he is a phenomenal writer. He is also a veteran Baltimore Sun police reporter and a keen observer. If you haven't read Homicide yet, buy it RIGHT NOW. Here's a link. [I still don't understand the book market -- on Amazon, it's half the price of bn.com. I'm also standing by for the No Man to offer up that Charm City idiosyncrasy of referring to the Baltimore Sun as the Sunpapers.]

Okay, now that you've got the book, turn to page 193 (assuming the pagination is the same as in the hardback edition) and read through to page 207. Brilliant. Absolutely brilliant.