Thursday, March 06, 2008

New published NMCCA opinion

NMCCA issued a new opinion today. United States v. Morrison, __ M.J. ___, No. NMCCA 200700647 (N-M. Ct. Crim. App. Mar. 6, 2008). It isn't yet on NMCCA's web site, so I've posted it on

In Morrison, Senior Judge Geiser writes for a unanimous panel upholding the results of Midshipman Morrison's court-martial. Morrison was a heavily publicized court-martial alleging an indecent assault by a member of the United States Naval Academy's football team.

The court first rejects a court-stacking UCI issue. While two of the original 15 members were O-3s, they were bounced for cause (along with three O-6s, four O-5s, and two O-4s). Excluding those two O-2s, the remaining 13 original members and every one of the 15 subsequently detailed member was an O-6, O-5, or O-4. The defense counsel expressed concerns about the relative seniority of the panel, opining that when he went to the Academy, half the officers there were O-3s and below. But he didn't make a motion challenging the member selection.

NMCCA ruled that as to whether actual UCI existed, it would presume "that the CA acted in good faith and applied the Article 25(d) criteria conscientiously." Morrison, slip op. at 4. NMCCA ruled that the defense had presented no evidence either at trial or on appeal that the CA attempted to stack the court.

The court then assessed whether it was "convinced beyond a reasonable doubt that a reasonable person with knowledge of the relevant facts would not perceive that the deck was unfairly stacked against this appellant." Id., slip op. at 5. The court noted that this was a highly publicized case in which 23 of 30 members were challenged off the panel, thus "suggest[ing] the case's high visibility within the relatively small and insular Annapolis Navy community." Id., slip op. at 6.

While NMCCA noted that this high visibility required that the case be closely scrutizined, it survived that scrutiny. The court observed that the CA had, in fact, detailed two O-3s to the original panel -- thus indicating that the CA did not purposefully exclude O-3s from the member pool. The court also observed that the members were extensively voir dired over three days. The court also reasoned that because the members found Midshipman Morrison not guilty of one of the two alleged sexual assaults, they would not appear to have been "'stacked' to obtain a specific result." Id., slip op. at 7. The court concluded that a reasonable observer would not perceive unlawful command influence.

NMCCA also rejected a legal and factual sufficiency challenge to the findings.


No Man said...

I am not sure about close scrutiny, but it certainly got expeditious review. This court martial is less than a year old, that is post sentencing. The brief was filed at the end of Nov. 2007. Yet we have a decision on it? What gives with the vast array of other cases languishing on appellate review, for example the Walker capital case that has not been decided for over a year after oral argument. Did someone outside NMCCA "recommend" more expeditious review due to the black eye the Navy got due to Superintendent Rempt's handling of this case and others?

Disclosure: I was counsel in Walker and one of those other cases.

Anonymous said...

I absolutely agree. I realize some cases are more complex than others and thus take longer to decide, but complexity doesn't seem to be the issue here. For example, look at United States v. Delarosa, decided back in January. It took the same panel of NMCCA more than two years to decide that case, where United States v. Morrison took them only a few months. Was Delarosa's case that much more complex than Morrison's? A quick review of the two opinions suggests not.

I realize we don't want to know too much about how the appellate sausage is made, but when a case like Morrison's is decided this quickly while others languish in appellate limbo, it does not inspire confidence that cases are being decided in a deliberate and equitable order.

Anonymous said...

No, no one recommended expeditious review. I agree that Walker and other cases have taken far too long on review. So long that the panels have changed several times and that should be unacceptable at all levels. However, to even posit that someone influenced this case to be reviewed quickly is, in fact, ridiculous. I seriously wish the defense bar would stop thinking there is a conspiracy in each and every case referred to a court-martial and on review.

45alum said...

Maybe not a conspiracy, but I think Judge Geiser realized that this was a high profile, "sexy," case, and also realized that he does not have many published cases, nor is his jurisprudence very well respected.

Add to this the ongoing embarassment of his ethical slapdown from CAAF, and you could imagine that soon to be Captain Geiser USN (ret.) wants to shore up his resume and also have some good cocktail party fodder. So why not move this case to the top of the heap, and now he can say, "You remember that Naval Academy football player rape case? Yeah, I wrote the opinion on that...and it was published too."

And the hoped for response: "Wow! You were an appellate judge! And they had you write such a high profile opinion! Truly, you must be one of the foremost litigators in the Navy, if not the country, please come work for us."

John O'Connor said...

That's a pretty strong charge to throw around, particularly when it is admittedly based on pure speculation and is done anonymously. It also shows what is, in my view, a fairly questionable understanding of civilian hiring practices.

Anonymous said...

John O'Connor,
Since you are such an expert on the civilian legal world, do your clients know you spend a few hours a day playing around on the internet? Do they pay for it? Get back to work you unethical slug!

John O'Connor said...

LOL! My clients pay only for the work I do.

I claim to be an expert on virtually no subject. Maybe baseball and Syacuse basketball, but that's about the list.

No Man said...

Anonymous #2, I think we actually agree on this point. If someone outside of NMCCA "recommended" that the case get more expeditious review, I think their recommendation was dead on. This case needed to be reviewed and dealt with because of the issues it raised. I have no problem with anyone perceiving that and "recommending" that to the NMCCA appellate judiciary inn an oblique way. If the NMCCA panel agreed, so be it. No conspiracy theory needed--in fact I'd imagine that's a relatively routine thing on the CCAs. The only issue I have is that there are other cases, the Walker case being only one example, that are still sitting out there. The institution has a problem with processing speed, this case only highlights the issue.

Anonymous said...

I have a question: what if they reversed the charges and specification?

Normally the UCMJ lets you put the Genie back in the bottle and the accused has rights, priviledges, and property restored to him or her that were lost as a result of the conviction (including Special selection boards where applicable, etc). How do you "fix" a mid. case? Let the guy graduate and say your sorry for holding up a couple years of his/her life?

I'm not saying that was what was driving the decision in this case (or any case), but was curious.