Continuance sought in Kreutzer capital court-martial

The No Man called my attention to news reports that the defense team in the Kreutzer case is seeking to delay the retrial, currently scheduled to start on 2 June. Here's a link to the Fayetteville Observer's account of a pretrial motions session.

ACCA on Crawford

Even more depressing than child pornography cases is that other scourge of the military justice system: child sexual abuse cases. ACCA yesterday explored the Crawford v. Washington, 541 U.S. 36 (2004), implications of the evidence leading to the conviction of a Specialist for twice raping his five-year-old daughter. United States v. Russell, __ M.J. ___, No. ARMY 20050281 (A. Ct. Crim. App. Apr. 29, 2008).

In Russell, the victim was playing with another young girl who lived in the neighborhood. The other young girl's mother discovered that the two girls were engaging in inappropriate behavior with one another in a locked room. When she asked about it, the victim said they were playing a "sex game." The mother asked the victim some additional questions, which resulted in the victim indicating that her father had performed sexual acts on her.

The first issue in Russell was whether the mother's testimony about the statements was permissible under Crawford assuming no opportunity to confront the victim herself. Yes, ruled ACCA. First, there was no law enforcement involvement in the questioning that led to the statements. Second, neither the mother nor the victim engaged in the conversation with a view toward criminal prosecution. ACCA quoted CAAF for the proposition that "[s]tatements made to family, friends, and acquaintances without any intention for use at trial have consistently been held not to be testimonial, even if highly incriminating to another." United States v. Scheurer, 62 M.J. 100, 105 (C.A.A.F. 2005). Crawford therefore didn't bar the mother's testimony about the statements.

ACCA then held that the statements were properly admitted under Military Rule of Evidence 807's residual hearsay exception, finding that the statements were supported by sufficient particularized guarantees of trustworthiness.

ACCA then considered whether statements the victim made to a psychologist were properly admitted under Military Rule of Evidence 803(4)'s hearsay exception for statements made for medical diagnosis or treatment. No, held ACCA. The proper focus is on the declarant's understanding of the purpose of the interview, not that of the mental health provider. And "there is little indication [the victim] understood [the psychologist] was a doctor or that the examination was for the purpose of receiving medical treatment." Russell, slip op. at 13. ACCA concluded that the military judge's ruling allowing testimony about the victim's hearsay statements to the psychologist was "clearly erroneous." Id., slip op. at 14. But ACCA held that this error was harmless beyond a reasonable doubt considering the other evidence in the case, including the accused's two confessions and the corroborating testimony provided by the victim's friend's mother.

Living to fight another day

CAAF has remanded a case to the Navy-Marine Corps Court to consider an issue that appellate defense counsel apparently raised for the first time before CAAF. United States v. Roberts, __ M.J. ___, No. 08-0283/MC (C.A.A.F. Apr. 29, 2008) (summary disposition). CAAF granted review of "WHETHER THE MEMBERS ERRED WHEN THEY FOUND APPELLANT GUILTY OF STEALING 'MILITARY' PROPERTY IN ALL OF THE SPECIFICATIONS OF CHARGE I, WHEN THE PROPERTY WAS OWNED BY A NON-APPROPRIATED FUND INSTRUMENTALITY," and sent the case back to the Navy-Marine Corps Court to consider that issue in the first instance.

The stars finally align

The link to the memo appears to be broken, but NIMJ's web site is reporting that Deputy Secretary Gordon England has authorized the Judge Advocates General to be nominated for their third stars, which Congress provided for in this fiscal year's DOD Authorization Act, as we previously discussed here. My understanding is that the incumbents will be nominated for their third stars and that all of their successors will be nominated as three star generals or admirals.

CAAF declines to consider disposition instructions in determining CA's intent concerning approval or disapproval of a BCD

Airman Apprentice Dowis was court-martialed and received a sentence of a bad-conduct discharge, confinement for 60 days, forfeiture of $800.00 pay per month for a period of two months, and reduction to pay grade E-1. The convening authority's action in the case states: "[T]he sentence is approved, with the exception of the bad conduct discharge, and will be executed." Is that an ambiguous statement about the BCD's approval that allows the action to be remanded to the CA for clarification or an unambiguous statement that should be carried out?

The former, ruled NMCCA. No, the latter holds CAAF.

In United States v. Dowis, No. NMCCA 200700428 (N-M. Ct. Crim. App. Oct. 23, 2007), an unpublished opinion by Senior Judge Geiser, a 2-1 NMCCA majority acknowledged the language's similarity to that used in United States v. Wilson, 65 M.J. 140 (C.A.A.F. 2007), which CAAF held disapproved the BCD. NMCCA continued, "We agree that, standing alone, this language appears to disapprove the punitive discharge. We also note, however, that the last paragraph of the action states that 'The record of trial is forwarded to Navy-Marine Corps Appellate Review Activity . . . for review under Article 66, UCMJ.'" Dowis, No. NMCCA 200700428, slip op. at 2. NMCCA reasoned that this language, which "unambiguously indicates that the convening authority believed his sentence was such as to trigger this court's Article 66 review jurisdiction," creates an internal inconsistency that compels remanding the case "to the convening authority for clarification or issuance of a corrected action in accordance with R.C.M. 1107(g), UCMJ [sic]." Id., slip op. at 3.

Judge Falvey dissented, reasoning: "The terms of the action itself were susceptible to only one interpretation—the punitive discharge was not approved. Accordingly, the action is not subject to R.C.M. 1107(g) which permits corrective action on an ambiguous action." Id., slip op. at 4 (Falvey, J., dissenting).

On Monday, CAAF resolved that intramural conflict: "we hold that under the plain meaning of the language in the convening authority's action of April 18, 2007, the bad-conduct discharge was not approved." United States v. Dowis, __ M.J. ___, No. 08-0247/NA (C.A.A.F. Apr. 28, 2008) (summary disposition). CAAF granted review of the following issue: "Whether the lower court properly held that it could rely on the convening authority's forwarding of the record of trial to the Navy-Marine Corps Appellate Review Activity (NAMARA) as evidence of ambiguity in the approval of Appellant's bad-conduct discharge." Id. CAAF instantly resolved that issue by holding, "The decision of the United States Navy-Marine Corps Court of Criminal Appeals is reversed." Id. No CAAF judge indicated a dissent from this resolution.

Regardless of the clarity of the convening authority's action, CAAF's message seems crystal clear: CCAs may not consider disposition instructions in determining whether a CA's action is ambiguous. As Judge Falvey notes in his Dowis dissent, that was the position advanced by Judges Erdmann and Baker in dissent in United States v. Politte, 63 M.J. 24 (C.A.A.F. 2006).

Has this summary disposition effectively overruled the opinion of the court in Politte?

Jobs for JAGs program

Here at CAAFlog, we are all for the employment of former judge advocates. So I'm happy to pass along this brochure for this Friday's Jobs for JAGS program sponsored by the Pentagon Chapter of the Federal Bar Association.

The program will be held at the Army Navy Club. The cost is $75, which includes lunch. Online sign-up is available at www.jaa.org.

Cert denied in Rhoades

Today's SCOTUS order list includes the denial of the cert petition seeking review of CAAF's decision in United States v. Rhoades, 65 M.J. 393 (C.A.A.F. 2008). Here's a link to the order list.

LTC Alan Dunavan (Ret.)

Army JAGCnet announces the passing of LTC Alan Dunavan (Ret.), the uniformed Command Judge Advocate for the USDB between 1999 and 2006. Alan most recently served as the Deputy Command Judge Advocate for the USDB when that position was created as a DA civilian position. If I've put the link in correctly above, you can read a more complete bio at the JAGCnet website, which also provides information on where to send condolences to his widow Janet. I can readily think of several occasions where Alan, arguably the "corporate memory" for confinement policies, provided information that helped me help my clients. Thanks for your service to your country, Alan, and God bless.

Government computers and expectation of privacy

In the first part of its opinion in United States v. Larson, __ M.J. ___, No. 07-0263/AF (C.A.A.F. Apr. 25, 2008), CAAF rather easily rules that an Air Force major had no expectation of privacy in his government computer, which he used to set up a rendez-vous with a civilian police detective who was posing on the computer as a 14-year-old girl and on which pornographic images were stored. The computer was located in a private office assigned to Major Larson and the office was capable of being locked. "[B]ut other Air Force personnel, including the fire department and the command's facility manager also had keys to his office." Id., slip op. at 5. The computer itself was government property that had been provided to Major Larson "to accomplish official business." Id. Major Larson "could secure the computer with a personal password, but a system administrator could still access the computer." Id. When Major Larson "logged on to the computer, he was required to click a button accepting conditions listed in a banner, which stated that the computer was Department of Defense property, was for official use, and that he consented to monitoring." Id., slip op. at 5-6. "The military judge found that, while Appellant 'reasonably understood that he was allowed to send personal e-mail or visit the internet as long as it didn't interfere with [his] duties,' this did not change the fact that the government owned the computer and had a right to access it." Id., slip op. at 6.

Relying on the banner warning, the military judge held that the government had carried its burden of showing by a preponderance of the evidence that Major Larson had no reasonable expectation of privacy in the computer.

CAAF notes the general presumption of no reasonable expectation of privacy in government property and the possibility of overcoming that presumption. In this case, CAAF rules, the defense didn't overcome the presumption.

CAAF distinguished its holding in United States v. Long, 64 M.J. 57 (C.A.A.F. 2006), which dealt with expectations of privacy in a particular password protected government e-mail system. As a practice note, CAAF emphasized that the testimony of the network administrator in Long supported the finding of a reasonable expectation of privacy there. The actual practices of the network administrator may either support or refute a reasonable expectation of privacy. See Larson, slip op. at 10.

Larson also presented an IAC issue. Relying on Florida v. Nixon, 543 U.S. 175 (2004), CAAF indicates that it is generally not ineffective assistance of counsel in violation of the Sixth Amendment for a counsel "to concede some or all aspects of a crime at trial in order to achieve an acceptable overarching strategic goal," even without the client's express consent. Long, slip op. at 15. But a different result might arise if the "trial defense counsel had an in-depth
discussion with Appellant regarding counsel's strategic choice" (and, presumably, the trial defense counsel then failed to follow the client's dictates expressed in that in-depth discussion). Id., slip op. at 17.

CAAF found that the record was silent about whether such a conversation had occurred in this case. Id. This despite an order from the Air Force Court to the trial defense counsel to indicate whether such conversations had occurred, which produced a non-responsive reply from the trial defense counsel. "Puzzlingly," CAAF observed, "the CCA accepted trial defense counsel's nonresponse and proceeded to determine that Appellant’s counsel was not constitutionally deficient." Id., slip op. at 14. CAAF solved that puzzle by assuming error and then testing for prejudice, which it found lacking beyond a reasonable doubt.

Chief Judge Effron wrote a short concurrence which appears to suggest that Nixon's Sixth Amendment test for determining whether a client must consent to counsel's concession of guilty during opening statement or closing argument may be inapplicable in the military due to either Article 45 or Rules for Courts-Martial 811(c), 906(b)(10), and 910. In other words, military statutes or regulations may provide a higher duty on counsel than that required by the Sixth Amendment floor. That concept will no doubt be explored in future cases.

We previously had an extremely interesting discussion about the ethical implications of computer monitoring and monitoring banners on counsel providing defense services. Does anything in the Larson opinion affect the question of whether the privilege applies to attorney-client communications conducted over government e-mail accounts on government computers, including those of both the defense counsel and the client?

Trial defense counsel beware: CAAF puts the burden on you to identify particular foundational deficiencies in the government's evidence

United States v. Reynoso, __ M.J. ___, No. 07-0221 (C.A.A.F. Apr. 25, 2008), explores the little-developed area of the admissibility of summaries under Military Rule of Evidence 1006.

Reynoso was a BAH fraud prosecution. Sgt Reynoso was stationed in Okinawa. He filled out a form indicating that his wife was in San Francisco, one of the highest-cost housing markets in the country. But according to the government's evidence, she was actually living in Virginia Beach, Virginia. The opinion doesn't tell us the precise difference in BAH at the time of the offenses, but the BAH for a married E-5 in San Francisco today is $2512 -- almost twice the BAH for Virginia Beach.

During the government's case, it presented the testimony of a personnel administration expert, who had compiled a chart based on DFAS data presenting information about BAH and COLA rates for San Francisco and Virginia Beach. The government moved to admit the chart into evidence. The defense objected, making a generic "foundation" objection. Not good enough, ruled CAAF.

At CAAF, the defense challenged the chart's admissibility by specifically arguing that "it was a summary of the source documents on the DFAS website, and the Government did not lay a proper foundation under M.R.E. 1006 to admit the summary." Id., slip op. at 5. The defense also argued that the information on the DFAS website was itself hearsay and thus inadmissible. Id.

CAAF first considered whether the generic "foundation" objection was sufficient to preserve these objections. No, ruled CAAF. CAAF held that by simply stating, "Objection on foundation," the trial defense counsel had "forfeited the claim of error [Appellant] now asserts." Id., slip op. at 7.

Having found forfeiture desipte the foundational objection, CAAF then assessed whether the chart's admission was plain error. No, held CAAF.

The government maintained that the chart was admissible under Military Rule of Evidence 1006, which provides, in relevant part: "The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation." CAAF noted that in "federal civilian practice, summary evidence is admissible under Fed. R. Evid. 1006 only if the underlying materials upon which the summary is based are admissible." Id., slip op. at 8. But CAAF recognized an exception to this rule followed by federal courts and included in the Military Rules' drafters' analysis: "It is possible for a summary that is admissible under Rule 1006 to include information that would not itself be admissible if that information is reasonably relied upon by an expert preparing the summary." Id. (quoting Manual for for Courts-Martial, United States, Analysis of the Military Rules of Evidence app. 22 at A22-60 (2005 ed.)).

Because the witness who prepared the chart had already been qualified as an expert in personnel administration and "had stated that he had relied on the DFAS website to compile the information," under Military Rule of Evidence 1006 the chart "might have been admitted under this expert witness exception." Id. at 9. CAAF concluded: "[S]ince PE 6 was not clearly inadmissible, in the absence of a more specific objection and some indication on the record that the foundational elements of M.R.E. 1006 were not met, there was no plain error in admitting it." Id.

But here is the part of the opinion that gives me heartburn: "[H]ad there been an objection specific to M.R.E. 1006, the parties could have litigated before the military judge the fairly detailed foundation for the admissibility of such evidence." Id. The opinion then observes in a footnote: "For instance, the proponent might or might not have been able to show: the originals or duplicates of the originals would be admissible; the originals or duplicates were too numerous or too voluminous to be conveniently introduced during trial; the relevant fact was a summary of the record's contents; the opponent was granted access to the originals or duplicates for inspection; or, the witness personally reviewed all the records or was a member of a team of experts who reviewed the records." Id., slip op. at 9 n. 9.

Now, I honestly assume that I am overlooking something since Reynoso is a unanimous opinion. The CAAF judges have each spent dozens more hours examining this case than have I, so if I were correct that there is a problem in the analysis, surely one of the five would have discovered it long before I did. So someone please give me metaphorical Mylanta for my Reynoso heartburn by explaining why the following analysis is wrong:

1. "The proponent of the evidence has the burden of showing admissibility." United States v. Shover, 45 M.J. 119, 122 (C.A.A.F. 1996).

2. The government was the chart's proponent.

3. The defense objected to the chart's foundation.

4. Therefore, it was the government's burden as the chart's proponent to lay a foundation for its admissibility rather than the defense's burden to identify particular defects in its evidentiary foundation.

But even in the unlikely event that my objection has legal merit, Reynoso is the law and trial defense counsel had better be prepared to deal with its implications. And the opinion's lesson for trial defense counsel is clear: less is not more. Military judges can generally get away with failing to provide any analysis to support their rulings on evidentiary objections. See, e.g., United States v. Postle, 20 M.J. 632, 638 (N.M.C.M.R. 1985)) ("it is not required that a military judge explain his ruling admitting evidence during the trial on the merits"). But apparently the trial defense counsel must make a detailed objection identifying specific defects under the MREs or risk having any objection treated as forfeited. The wise trial defense counsel will now show up in court with an evidentiary checklist to tick off various authenticity, hearsay, and specific foundational objections. LexisNexis's Military Evidentiary Foundations provides helpful guidance.

Fascinating 1997 Memo on Amending Art. 2(a)(10)

I stumbled over this last night, and what a night of reading it was. This 1997 memo from the Overseas Jurisdiction Advisory Committee (OJAC) of the DoD General Counsel's Office is a fascinating piece of history on the first proposed amendment to Art. 2(a)(10), which until tonight I never knew existed. The memo's authors included many uniformed judge advocates that our readers will know, including, Brig. Gen. John Cooke, USA, CAPT Richard Schiff, USN, Col. Charles Trant, USA, and then Col. Robert E. Reed, USA.

The bottom line recommendation of the committee was to amend Art. 2(a)(10) to include civilians under the UCMJ in times of declared contingency operations. Where have I seen that?

But, the devil is in the details. The Committee had the following to say about which contingency operations and personnel should fall within their proposed amendment:

The committee believes that creation of a "contingency operation'' by operation of law under section 101(a) (13) (B) is not sufficiently precise to limit application of new Article 2(a) (13) to the areas affected by the contingency operation or to give clear notice to the personnel concerned. Second, the committee's recommendation requires SecDef to also designate the places outside the United States where civilians supporting the contingency operation will be subject to court-martial jurisdiction under new Article 2(a) (13). This will permit the Secretary the flexibility to include civilians participating in the contingency operation in the place that is the objective of the contingency operation, and also those directly supporting the contingency operation in other nearby places. However, this provision will also protect civilians at installations far removed from the site of the contingency operation, even though their work may have some connection to that operation.

In case you were wondering, the current conflicts in Iraq and Afghanistan fall under 10 U.S.C. 101(a)(13)(B). See Major Karl Kuhn, Field Manual (FM) 3-100.21, Contractors on the Battlefield, Supersedes FM 100-21, Army Lawyer, at 137 (Jan. 2004). Interestingly, one rationale for this distinction was taken from an article by Major Susan Gibson titled "Lack of Extraterritorial Jurisdiction Over Civilians: A New Look at an Old Problem." The Committee wrote:

Major Gibson emphasizes that the exercise of military jurisdiction in [only 10 USC 101(a)(13)(A) contingency operations] would be limited in scope and time: few civilians would be covered and contingency operations are, by definition, of limited duration.

The Memo contains lots of other great perspectives about contractors on the battlefield. I'll post anything else that I find of interest. How did I miss this before?

Two new CAAF opinions

CAAF issued two opinions today. In one, CAAF upholds a military judge's ruling that the accused had no reasonable expectation of privacy in his government computer, which he used to download pornography and set up a sexual liaison with a civilian police detective he erroneously thought was a 14-year-old girl. United States v. Larson, __ M.J. ___, No. 07-0263/AF (C.A.A.F. Apr. 25, 2008). CAAF also rejected an IAC claim based on the civilian defense counsel's concession of misconduct as to some but not all of the offenses during his opening statement and closing argument. Judge Ryan wrote the opinion of the court. Chief Judge Effron wrote a separate concurrence emphasizing that whether a defense counsel must obtain the client's permission before conceding guilt to an offense during an opening statement or closing argument remains an unresolved issue.

In United States v. Reynoso, __ M.J. ___, No. 07-0221 (C.A.A.F. Apr. 25, 2008), CAAF offers a helpful exploration of the foundational requirements for introducing a summary of voluminous data under Military Rule of Evidence 1006. Judge Baker wrote for a unanimous court.

I'll likely be offline all of tomorrow, so everyone is encouraged to post an analysis of either or both of these two cases before I log back on sometime Sunday. If no one has done so, I'll provide some thoughts then.

NMCCA published multiplicity/UMC decision

Remember Judge James' classic observation that the appellant "invites us to descend with him into that inner circle of the Inferno where the damned endlessly debate multiplicity for sentencing"? United States v. Barnard, 32 M.J. 530, 537 (A.F.C.M.R. 1990). Eighteen years of endless debate later, it's surprising that there are still multiplicity and unreasonable multiplication of charges issues of first impression. But NMCCA found one in United States v. Campbell, __ M.J. ___, No. NMCCA 200700643 (N-M. Ct. Crim. App. Apr. 24, 2008). Judge Feltham wrote for a unanimous court that also included Senior Judge Geiser and Judge Mitchell.

The depressing news for the evening is that Campbell is yet another child pornography case. I continue to be amazed and distressed that child pornography cases make up such a huge portion of the military justice docket.

The key issue in Campbell is whether it is either multiplicious or an unreasonable multiplication of charges to charge and convict a servicemember three times for possessing the same child pornography image in three different media -- here a government computer's hard drive, a compact disc, and a home computer. (Senior Chief Campbell downloaded the images on his government computer from which he saved them on a compact disc that he used to transfer them to his home computer.)

NMCCA first ruled that the various specifications aren't facially duplicative, so any multiplicity issue was waived by Senior Chief Campbell's unconditional guilty plea. The court then relied on the Fifth Circuit's reasoning in United States v. Planck, 493 F.3d 501 (5th Cir. 2007), to hold that alleging separate offenses for possessing the same image on multiple media is not an unreasonable multiplication of charges. NMCCA concluded that "the possession of separate media containing contraband images provides an independent basis for each charge, irrespective of the similarity or differences of the contraband images." So even though the images that Senior Chief Campbell "possessed were identical, each possession on different media was a separate crime, and, therefore, a proper basis for a separate specification alleging possession, regardless of the similarity of the images in each instance." This became the most important factor in ruling that the Quiroz UMC test permitted separate findings of guilty.

NMCCA then reiterated the by-now familiar rule that "an offense that is not multiplicious for findings is normally not multiplicious for sentencing." But, surprisingly, NMCCA then held that the military judge should have treated one of the offenses as multiplicious with two other offenses for sentencing purposes.

Then, in the course of reassessing the sentence, NMCCA wrote something bizarre. The original sentence as adjudged and approved was a BCD, confinement for 4 months, and reduction to E-1. NMCCA observed, "Having concluded that Specification 3 of Charge II is multiplicious for sentencing with Specifications 1 and 2 combined, we must reassess the sentence." The court does so and concludes that if the offenses had been viewed as multiplicious, "we are confident that the minimum sentence in this case would at least have included confinement for four months, reduction to pay grade E-1, and a bad-conduct discharge." At least the same sentence that the military judge actually imposed? You mean had she thought there were fewer specs, the military judge might have imposed more punishment?

Now I know that NMCCA sometimes gets in trouble with CAAF for using legally incorrect language to describe what it's doing. See, e.g., United States v. Baier, 60 M.J. 382 (C.A.A.F. 2005). And while I certainly have no knowledge of what actually goes on in NMCCA's inner sanctum, I would imagine that the judges have responded to cases like Baier by developing templates of safe language to apply to a given scenario. And perhaps the reassessment macro includes the words "at least." But I really don't think NMCCA would be courting reversal by CAAF if it were to simply observe that it is confident that the adjudged sentence would have remained unchanged and was appropriate.

New CAAF grant

Here's a CAAF grant that isn't even on CAAF's online daily journal yet. In United States v. MacOmber, __ M.J. ___, No. 08-0072/AF (C.A.A.F. Apr. 25, 2008) (order), CAAF granted review to determine whether the military judge erred in holding that a military magistrate had probable cause to authorize a search of A1C MacOmber's dorm room and personal computer for child pornography. The Air Force Court's opinion, available here, discussed whether OSI agents' failure to advise the magistrate that some of its information was 14-months-old invalidated the probable cause determination. No, ruled the Air Force Court. United States v. MacOmber, No. ACM 36693 (A.F. Ct. Crim. App. Aug. 31, 2007) (per curiam).

HUGE news: Government doesn't seek cert in Lopez de Victoria

Yesterday's daily journal entries included big news: the government is NOT seeking cert to review CAAF's holding in United States v. Lopez de Victoria, 66 M.J. 67 (C.A.A.F. 2008), that it has jurisdiction to review a CCA's ruling on an Article 62 appeal. See United States v. Lopez de Victoria, __ M.J. ___, No. 07-6004/AR (C.A.A.F. Apr. 24, 2008) (order). So Lopez de Victoria won't be the case to force the Kabul Klipper into a Florida-to-Washington Golden CAAF drive. All eyes now turn to Denedo v. United States, 66 M.J. 114 (C.A.A.F. 2008), in which a cert petition is due on 3 July, absent a request for an extension.

Make your predictions now: will the Kabul Klipper owe Paul Clement one gilded bovine statuette come next term's long conference?

Civilians and ducks cont'

We previously discussed the four appellate divisions that are each hiring a civilian. The Air Force appellate government civilian opening has been readvertised. The announcement is here. It closes 5 May.

Big news day

Today's news includes two CAAF opinions and a published NMCCA opinion that is newly posted on NKO.

MilJus Roundup

My new Manual for Courts-Martial arrived. Sort of a maroonish, purple color . . . not surprising. The cool new fold out tabs eliminated my ritual tape flagging of my Manual, BZ to Gov't Printing Office.

Interesting article from my former colleague from NLSO DC, Tara Lee, on Art. 2, UCMJ and other topics, here.

Marine Corps announced today that the CG, 3d MarDiv referred charges in the alleged rape case that reignited issues with U.S. servicemen (not so much women) stationed in Japan, here.

An interesting round table on Art. 2, UCMJ, sponsored by the Amer. Constitution Society, was held at the Harvard Law School (I think) on April 18, reported here. Hopefully Gene Fidell or one of the other speakers will publish a paper out of the discussion.

CAAF summarily reverses NMCCA for apparently relying on facts from the Article 32 investigation

In United States v. Hayes, __ M.J. __, No. 08-0215/NA (C.A.A.F. Apr. 23, 2008) (summary disposition), CAAF observes that "it appears that in its rendition of the facts, the [Navy-Marine Corps] Court of Criminal Appeals may have considered matters from outside the record. The facts alleged in the decision appear to have been taken from the victim's summarized testimony presented at the Article 32, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 832 (2000), investigation, rather than from the evidence presented at trial." If so, NMCCA violated CAAF's case law holding that a CCA is limited to the evidence presented at trial when conducting factual sufficiency review and the evidence presented at trial plus matters considered by the CA before taking action when conducting sentence appropriateness review. See United States v. Beatty, 64 M.J. 456, 458 (C.A.A.F. 2007).

So in Hayes, CAAF granted review of whether NMCCA "failed to conduct a proper review under Article 66(c) where, in its rendition of the facts of the case, that court appears to have considered evidence from outside the record." Hayes, No. 08-0215/NA (citation omitted). Then CAAF instantly resolved that issue by setting aside NMCCA's decision, which can be found here.

Coast Guard certified issue

On Tuesday, the Judge Advocate General of the Coast Guard certified this issue to CAAF:

WHETHER THE COAST GUARD COURT OF CRIMINAL APPEALS ERRED BY FINDING THAT THE ACCUSED RAISED SUFFICIENT FACTS DURING THE PLEA INQUIRY REQUIRING THE MILITARY JUDGE TO EXPLAIN SELF-DEFENSE.

The Coast Guard had issued a split published opinion in the case. United States v. Yanger, __ M.J. ___, No. 1271 (C.G. Ct. Crim. App. Mar. 21, 2008). We discussed that opinion here.

CAAF again passes on ex writ challenging Coast Guard's Article 32 restrictions

The day after the Garcia writ appeal was docketed, CAAF denied it without prejudice to raising it during future proceedings. Garcia v. Crowley, __ M.J. ___, Misc. No. 08-8017/CG (C.A.A.F. Apr. 22, 2008) (summary disposition).

We previously discussed the Garcia petition for extraordinary relief, which challenges the Coast Guard's practice of precluding the recording of witnesses testifying at Article 32 investigations and restricts the defense's right to transcribe such witnesses' testimony, here and here.

As he did in United States v. Morton, 65 M.J. 91 (C.A.A.F. 2007) (mem.), Judge Erdmann dissented in part from the denial of the Garcia writ appeal. He wrote that he would order the government to "take no steps to preclude an employee of the defense from attending the Article 32, Uniform Code of Military Justice, 10 U.S.C. § 832 (2000), hearing, as a member of the public and from transcribing the proceedings, subject to the investigating officer's power to exercise reasonable control over members of the public attending the proceedings."

CAAF revisits the nettlesome question of charging offenses on divers occasions

United States v. Rodriguez, __ M.J. ___, No. 07-0685/AF (C.A.A.F. Apr. 23, 2008), has a certain how-many-angels-can-dance-on-the-head-of-a-pin feel to it. In an opinion by Judge Ryan, a four judge majority and Judge Erdmann debate each other over the metaphysical intersection between divers occasion specs and the CCAs' requirement to review factual sufficiency of the findings of the court-martial.

The problem originally identified by United States v. Walters, 58 M.J. 391 (C.A.A.F. 2003), arises when a spec alleges offenses on divers occasions, but the court-martial finds the accused guilty of only a single violation. If the court-martial doesn't specify the particular occasion on which its finding is based, then the CCA has no way to conduct its factual sufficiency review, since it can't review a finding of not guilty and doesn't know which of several alleged acts of misconduct provided the basis for the conviction.

Walters is a hard case to love, conflicting as it does with the common law rule that "a general jury verdict was valid so long as it was legally supportable on one of the submitted grounds even though that gave no assurance that a valid ground, rather than an invalid one, was actually the basis for the jury's actions." Walters, 57 M.J. at 556 (quoting Griffin v. United States, 502 U.S. 46, 49 (1991)).

It is, therefore, unsurprising that CAAF would resist the logic of Walters and attempt to confine it to the narrow fact pattern from which it arose.

In Rodriguez, one of the specs of which Senior Airman Rodriguez was convicted alleged marijuana use on divers occasions. The government presented evidence suggesting that SrA Rodriguez had used marijuana three times. The members found SrA Rodriguez guilty as charged. But on appeal, the Air Force Court found the evidence factually sufficient as to only one occasion and affirmed a finding of guilty to a single use.

The problem, of course, is that since there were three possible offenses and SrA Rodriguez was found guilty of use on divers occasions -- meaning two or more times -- the Air Force Court couldn't have known whether the members had found beyond a reasonable doubt that SrA Rodriguez used marijuana on that one occasion.

The majority concedes the logic of that position, Rodriguez, slip op. at 8, but nevertheless affirms. Citing Griffin, CAAF essentially holds that Walters' logic is trumped by the "longstanding jurisprudence in the Supreme Court, this Court, and the common law regarding the presumption that controls general verdicts on appeal." Id.

Walters may be a hard opinion to love, but not hard enough to make its father disown it. Judge Erdmann, Walters' author, stands by the opinion's logic in his dissent. But while the majority distinguishes Walters, id., slip op. at 3, 10-12, Rodriguez appears to be more an exercise in limiting Walters than distinguishing it.

A subtext appears to run through the majority opinion. The opinion observes that the divers occasion spec actually limited SrA Rodriguez's punitive exposure. Id., slip op. at 11 n.5. The opinion also seems to hint that the defense should ask for a bill of particulars when faced with a divers occasions spec. Id., slip op. at 4, 11 n.5.

Had Rodriguez come out the other way, divers occasion charging would no doubt be dead, giving way to mega-specs. And CAAF has held that the maximum punishment for a mega-spec is the aggregate of all the offenses alleged by the mega-spec rather than the punishment for a single offense. United States v. Mincey, 42 M.J. 376 (C.A.A.F. 1995). So CAAF protected "divers occasions" charging, with its benefits to the accused, while providing the bill of particulars roadmap to avoid angels-on-the-head-of-a-pin problems like in Walters and Rodriguez. And all while vindicating the common law rule.

BLUF

I'm writing an analysis of CAAF's opinion in United States v. Rodriguez, __ M.J. ___, No. 07-0685/AF (C.A.A.F. Apr. 23, 2008). But here's the bottom line up front: Judge Ryan writes the majority opinion in Stuckian/Garnerian BLUF format. Since BLUF is an Army term, I propose three hooahs for Judge Ryan.

Military services to enlist more recruits with convictions

The Washington Post ran an article today that could be the harbinger for increased military justice business in the years to come. Ann Scott Tyson, Military Waivers for Ex-convicts Increase, Wash. Post, Apr. 22, 2008, at A1. The article begins, "The Army admitted about one-fourth more recruits last year with a record of legal problems ranging from felony convictions and serious misdemeanors to drug crimes and traffic offenses . . . ."

The numbers don't approach the 354,000 enlistees under Secretary McNamara's Project 100,000, but they are still fairly large: "Such 'conduct waivers' for Army recruits rose from 8,129 in fiscal 2006 to 10,258 in fiscal 2007. For Marine Corps recruits, they increased from 16,969 to 17,413."

Not surprisingly, a study of Marines entering the service on conviction waivers from 2003 to 2005 revealed that they "were 'quite a bit more likely' than other recruits to be separated from the service for misconduct within two years, and 'recruits with felony waivers have the highest chance of a misconduct separation[.]'"

The number of Soldiers entering the Army on felony waivers rose from 249 in 2006 to 511 last year, while the number of Marines entering on felony waivers rose from 208 to 350. (The Air Force, on the other hand, had no felony waivers during either of the last two years, while the Navy's felony waivers last year fell to 42 from the previous year's 48.)

Stand by for an uptick in the annual reports' numbers.

Writ appeal challenges Coast Guard's prohibition against recording Article 32 testimony and restrictions on transcribing it

I previously lamented the Coast Guard's practice of prohibiting tape recording of Article 32 testimony and imposing restrictions on the defense's ability to have a defense-employed court reporter transcribe such testimony. CAAF has now docketed a writ appeal seeking review of the Coast Guard Court's order dismissing a petition for extraordinary relief challenging these practices without prejudice to the accused's right to raise the issue in the normal course of review. Garcia v. Crowley, __ M.J. ___, Misc. No. 08-8017/CG (C.A.A.F. Apr. 21, 2008) (miscellaneous docket filing).

The universe of Amateur Hour fans expands . . .

The Appellate Law and Practice Blog shares CAAFlog's dislike of student amici and credits CAAFlog with beating him to the punch. Given my multiple physical (okay, technical) handicaps, I make no effort to provide the link and am simply pasting the blog entry below.

Amateur hour at the First
According to the “Official JD Admissions Blog at Harvard Law School” A Harvard 3L will be arguing before the First. The results of this case will bind future panels and all District Courts in the First Circuit.*
*I am not the first blawger to disapprove of law students arguing before Courts. CAAFlog beat me to it.
Posted by S. COTUS on April 21, 2008 at 12:13 PM

New CAAF opinion: United States v. Mackie

We previously noted that the Judge Advocate General of the Air Force certified five cases to CAAF from July to December 2007. CAAF has already decided three of those cases, affirming the Air Force Court's ruling in each. CAAF's opinion in United States v. Perez -- a short per curiam issued just 81 days after the oral argument -- appeared to reflect some disagreement with the Judge Advocate General of the Air Force as to whether the case was worthy of certification. See United States v. Perez, 66 M.J. 164 (C.A.A.F. 2008) (per curiam).

Now comes United States v. Mackie, __ M.J. ___, No. 08-5005/AF (C.A.A.F. Apr. 21, 2008) (per curiam) -- another Air Force certified issue case. CAAF didn't even find the case worthy of oral argument before affirming it in another short per curiam opinion.

Mackie affirms the Air Force Court's ruling, 65 M.J. 762 (A.F. Ct. Crim. App. 2007), that the military judge erred by concluding that A1C Mackie had received an adequate substitute for a 706 board based on opinions rendered by an Air Force clinical psychologist who had seen Mackie "twice by appointment and once for a brief walk-in conversation, never conducted a forensic examination or participated in a sanity board, and was unaware of [Mackie's] claimed memory losses and blackouts." Mackie, No. 08-5005/AF, slip op. at 3. As CAAF observed, the psychologist "admitted he had not conducted a forensic examination of [Mackie] or spent much time with him, and that he was unfamiliar with R.C.M. 706 rules and
standards." Id., slip op. at 6. The psychologist did opine that Mackie "was capable of standing trial," but the psychologist "could not opine on whether [Mackie] understood the nature and quality of his actions at the time the alleged criminal conduct occurred, as required by English, 47 M.J. at 218-19, and R.C.M. 706(c)(2)(C)." Id.

The upshot was not merely a slam dunk affirmance, but an off-the-glass, one-handed windmill slam dunk of an affirmance. Sprite might have to retroactively strip Dwight Howard of his 2008 Slam Dunk Contest title and award it to Mackie instead.

Diaz loses appeal of habeas denial in the 10th Circuit

We have previously noted the long-running case of United States v. Diaz, in which the Supremes denied not one, but two cert petitions on direct review.

Last month, in an unpublished decision, the Tenth Circuit affirmed an order from the United States District Court for the District of Kansas denying Diaz habeas relief. Diaz v. Inch, No. 07-3302 (10th Cir. Mar. 11, 2008). That means collateral review of the Diaz case is one more cert denial away from being complete.

Trial date set for Colonel Murphy's court-martial

According to this news release from the Air Force, Col Michael Murphy's general court-martial is tentatively scheduled to start on 21 July. A motions hearing is scheduled for 23 June.

The trial judge in the case is Army COL Stephen Henley, the Chief Judge of the Army's trial judiciary.

Col Murphy's case arises from allegations that he wrongfully practiced law in the Air Force despite having been disbarred by his two licensing states.

Things are quiet ... too quiet

Sources differ over whether King George III actually wrote in his diary on July 4, 1776, "Nothing of importance happened today." Notwithstanding that possibly apocryphal precedent, nothing of importance seemed to happen in U.S. military justice yesterday or today.

A Canadian perspective on United States v. Ali

Here's a link to an article from the Globe and Mail discussing the Ali case.

Coast Guard's hideous Article 32 taping/transcribing prohibition/restrictions continue unabated

The Coast Guard has at least a practice (and it would seem a policy) of preventing the defense from tape recording witnesses at Article 32 hearings. Why anyone thinks such a prohibition serves the interests of justice or truthfinding is beyond me.

In United States v. Morton, 65 M.J. 91 (C.A.A.F. 2007) (mem.), the defense counsel wanted to overcome this unwise prohibition by retaining a civilian court reporter to attend the Article 32 and transcribe witness testimony. The CA apparently refused to allow it unless the defense made its transcript (which the defense would have been paying for) available to the trial counsel.

The defense challenged these restrictions in a petition for extraordinary relief that the Coast Guard Court denied. CAAF then denied a writ appeal without prejudice to raising the issue "in the course of future proceedings." Judge Erdmann dissented in part, observing:

I would grant partial relief by ordering that Appellee take no steps to preclude an employee of the defense from attending the Article 32, Uniform Code of Military Justice, 10 U.S.C. § 832 (2000), hearing, as a member of the public and from transcribing the proceedings, subject to the investigating officer's power to exercise reasonable control over members of the public attending the proceedings. I would not address the issue of attorney work-product privilege at this time as that is a matter appropriately left to a military judge in the event of a trial by court-martial.

Id. at 92 (Erdmann, J., concurring in part/dissenting in part).

We previously looked at Morton here, here, here, and here.

Now the issue is once again before the appellate courts. Today the Coast Guard Court dismissed a petition for extraordinary relief challenging similar restrictions "without prejudice to Petitioner's right to raise the issues therein in the course of normal review under the UCMJ." Garcia v. Crowley, Misc. Docket No. 004-08 (C.G. Ct. Crim. App. Apr. 16, 2008).

I hope that Fireman Garcia's counsel file a writ appeal and I hope that CAAF -- seeing that this wasn't an issue isolated to the Morton case and seeing that the Coast Guard has failed to apply common sense to the situation -- grants plenary consideration of the issue.

Clarifying the specific intent required for aiding and abetting an indecent assault

In United States v. Mitchell, __ M.J. ___, No. 07-0225/MC (C.A.A.F. Apr. 16, 2008), CAAF answers that age-old question of whether to be guilty of aiding an abetting an indecent assault, the aider and abetter must act to gratify his or her own sexual desires or whether it is sufficient that the abettee acts with such intent. The latter, rules CAAF. Id., slip op. at 9-10.

Mitchell also addresses whether the providence inquiry was sufficient for distribution of marijuana where the accused indicated that he thought the substance was marijuana at the time he distributed it, but since had been told it wasn't. The military judge was obligated to reopen the providence inquiry to explore the inconsistency, ruled CAAF. Id., slip op. at 13. To remedy the military judge's failure to reopen, CAAF knocked the finding down to attempted distribution of marijuana and affirmed the original sentence. Id., slip op. at 13-14.

New CAAF opinion

United States v. Mitchell, __ M.J. ___, No. 07-0225/MC (C.A.A.F. Apr. 16, 2008). Chief Judge Effron for a unanimous court.

New published NMCCA opinion in Article 62 speedy trial case

United States v. Miller, __ M.J. ___, No. NMCCA 200800014 (N-M. Ct. Crim. App. Apr. 15, 2008).

Fix your gaze on the first week of July

In light of CAAF's recent denial of government reconsideration petitions in both United States v. Lopez de Victoria and Denedo v. United States, the government's cert petition would be due in the former on 1 July and in the latter on 3 July. See S. Ct. R. 13.3.

Of course, if the SG were to seek cert, history suggests that he would first seek an extension of the filing deadline under Rule 13.5. And history suggests that the Chief Justice -- who functions as the "Circuit Justice" for the military justice system -- would grant that request. The SG last made such a request in a military case in United States v. Dearing, No. 06A754, but then allowed the extended deadline to lapse without filing a cert petition.

Appellate shops take to "'civilianization' of the United States military justice system like ducks to water." United States v. Jones, 7 M.J. 806, 808.

(Sorry, the rest of the cite wouldn't fit in the title. It should include (N.C.M.R. 1979).)

In January, CAAF ruled that it was permissible for a government-employed civilian counsel to represent an appellant as long as the appellant was also represented by a judge advocate qualified under Article 27(b). United States v. Roach, __ M.J. ___, No. 07-0870/AF, 2008 CAAF LEXIS 118 (C.A.A.F. Jan. 28, 2008).

Since that ruling, the Air Force has advertised positions for civilian counsel at both its appellate government and appellate defense divisions.

Now the Department of the Navy is following the Air Force's lead. Today, advertisements went up for civilian positions at both Code 45 and Code 46.

Unfortunately someone has edited the Code 46 job announcement, because it originally contained a hilarious typo. Here is a sentence from the original announcement:

"Incumbent is responsible for persecuting the appeal of extremely complex cases with potential long-term or signification impact on the Government's interest, and cases where the death penalty has been adjudged against an appellant."

I regret to report that "persecuting" has now been replaced by "prosecuting." At least that Dr. Seuss-sounding word "signification" (misused as an adjective) is still there. And the announcement still refers to working "with trail counsel to preserve issues for appeal" and supporting "the Governments' interests." Editing isn't one of the job duties.

Is the Army considering moving in the same direction?

Article 32 hearing held in contractor case

An update on the case of Alaa Mohammad Ali, the civilian contractor charged under the UCMJ with aggravated assault: according to Reuters, the Article 32 hearing was convened (and apparently completed) today:

BAGHDAD (Reuters) - The U.S. military held a pre-trial hearing on Tuesday for an interpreter accused of a stabbing in Iraq, the first attempt to apply military law to civilian contractors working for U.S. forces in Iraq.

... [Ali's] pre-trial hearing took place in a courtroom at a U.S. base in Baghdad with witnesses who were unable to be present testifying by video link, the military said in a statement.

Revised military justice appellate reform proposal

Here's the revised version of the proposed military justice appellate reform statutory package, including an additional change that Eugene Fidell the Sagacious and I discussed off-line: eliminating the very unjudicial CAAF party balance requirement. I gave the sentence appropriateness issue still more consideration. I'm still inclined to leave it out, and I'll propose yet another reason: workload. If CAAF suddenly found itself in the sentence appropriateness business, then presumably every appellate defense counsel would raise the issue in every case, since no one would know the range of what CAAF considers appropriate. Almost all or, more likely, all of these sentence appropriateness challenges would be unsuccessful, but a zealous defense counsel would feel compelled to brief the issue. That would seem to be a huge waste of the system's resources.

So here's the current proposal, as revised:

1. Make all SPCM and GCM convictions subject to judicial review (absent waiver or withdrawal) without regard to sentence.

2. Allow the waiver of appellate review as part of a pretrial agreement (i.e., the JO'Cian waiver of appellate review provision). Provide that in cases being tried by military judge alone, the military judge will not be informed of the waiver until after sentencing.

3. Eliminate the Courts of Criminal Appeals.

4. Provide for the right to appeal any court-martial conviction to CAAF in a one-step process. CAAF would exercise jurisdiction over and rule on the merits of every case appealed to it. CAAF would also exercise the Article 62 jurisdiction currently exercised by the CCAs. CAAF would be statutorily empowered to substitute a finding of guilty to an LIO if it finds the evidence legally insufficient to support a finding of guilty but legally sufficient to support a finding of guilty to the LIO.

5. Authorize CAAF to sit in panels of 3 with further authority to grant initial review or rehearing en banc.

6. Legislate a formal post-conviction process for claims relying on extra-record evidence. Do so by amending Article 73 to allow the accused to file a petition for new trial based on any extra-record evidence with CAAF within two years of the court-martial conviction. CAAF would review the petition and the government opposition to determine if any disputed issues of material fact exist. If none exist, CAAF would resolve the petition on the basis of the filings. If such disputed issues of material fact did exist, it would remand the case to a standing court-martial for the appropriate service for a factfinding hearing. [Note that JO'C's proposal for a standing court-martial would have numerous collateral benefits. To avoid purpleness, there should be one standing court-martial for the Army, one for the Air Force, one for the Navy-Marine Corps Trial Judiciary, and one for the Coast Guard.]

7. Legislate formal limits for CAAF's extraordinary writ power. Declare that CAAF has writ jurisdiction over all cases for which an IO has been appointed under Article 32 or that have been referred to an SPCM or GCM, but not over summary courts-martial. Provide that CAAF's writ jurisdiction terminates in all instances upon Article 76 finality.

8. Repeal the portion of Article 142(b)(3) providing that "[n]ot more than three of the judges of the court may be appointed from the same political party."

9. Amend Article 74 to expressly authorize the service secretaries to commute a death sentence to confinement for life without eligibility for parole.

Cert denied

Today's SCOTUS order list includes the denial of the military cert petition in Pack v. United States, No. 07-1176.

A proposal to reform the military appellate process

Based on thoughts arising from our very helpful recent discussions, I propose the following statutory reform package for the military justice system's appellate review process:

1. Make all SPCM and GCM convictions subject to judicial review (absent waiver or withdrawal) without regard to sentence. (I am indifferent to flipping the current practice to provide an affirmative right to appeal that the accused must invoke. For the reasons discussed by JO'C in his recent article, John F. O'Connor, Foolish Consistencies and the Appellate Review of Courts-Martial, 41 Akron L. Rev. 175 (2008), in operation such a system would be almost indistinguishable from out current system. So I would neither affirmatively support nor actively oppose such a change.)

2. Allow an accused to offer the waiver of appellate review as part of a pretrial agreement.

3. Eliminate the Courts of Criminal Appeals.

4. Provide for the right to appeal any court-martial conviction to CAAF in a one-step process. CAAF would exercise jurisdiction and rule on the merits of every case appealed to it. CAAF would also exercise the Article 62 jurisdiction currently exercised by the CCAs.

5. Authorize CAAF to sit in panels of 3 with further authority to grant initial review or rehearing en banc.

6. Legislate a formal post-conviction process for claims relying on extra-record evidence. Do so by amending Article 73 to allow the accused to file a petition for new trial based on any extra-record evidence with CAAF within two years of the court-martial conviction. CAAF would review the petition and the government opposition to determine if any disputed issues of material fact exist. If none exist, CAAF would resolve the petition on the basis of the filings. If such disputed issues of material fact did exist, it would remand the case for a factfinding hearing.

7. Legislate formal limits for CAAF's extraordinary writ power. Declare that CAAF has writ jurisdiction over all cases for which an IO has been appointed under Article 32 or that have been referred to an SPCM or GCM, but not over summary courts-martial. Provide that CAAF's writ jurisdiction terminates in all instances upon Article 76 finality.

Such an appellate review system would be more just, substantially faster, substantially less resource intensive, and more predictable than our current military appellate review system. I considered whether to transfer the Article 66(c) sentence appropriateness and factual sufficiency review provisions from the CCAs to CAAF. I wouldn't. Those provisions are vestiges of an earlier military justice system substantially less fair and reliable than the one we have today. Court-martial panel verdicts should be disturbed only when a comparable civilian jury verdict would be disturbed. The question of sentence appropriateness is closer since in non-capital cases, a civilian jury would rarely impose a sentence. On balance, I wouldn't give CAAF sentence appropriateness power, but I think this is a closer question than giving whether to give it factual sufficiency power.

Do I hear a second? Amendments are welcome.

Why I might have to take a vacation day on 28 April

On 28 April, Thomson West will be releasing Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges (2008). WOW!

Here's a description of the book, courtesy of Amazon.com:

In their professional lives courtroom lawyers must do these two things well: speak persuasively and write persuasively. In this noteworthy book, two of the most noted legal writers of our day Justice Antonin Scalia and Bryan A. Garner systematically present every important idea about judicial persuasion in a fresh, entertaining way. Making Your Case: The Art of Persuading Judges is a guide for novice and experienced litigators alike. It covers the essentials of sound legal reasoning, including how to develop the syllogism that underlies any argument. From there the authors explain the art of brief-writing, especially what to include and what to omit, so that you can induce the judge to focus closely on your arguments. Finally, they show what it takes to succeed in oral argument. The opinions of Justice Scalia are legendary for their sharp insights, biting wit, and memorable phrasing. The writings of Bryan A. Garner, editor in chief of Black's Law Dictionary®, are respected inside and outside legal circles for their practical guidance on the art of writing and advocacy. Together the Scalia-Garner team has produced a fresh, innovative approach to a timeless topic.

The 269-page volume costs $29.95 on Amazon and can be pre-ordered here. Sorry, but I can't offer you comparison shopping; it isn't listed on bn.com (or powells.com, for that matter).

Here's a link to a wonderful article describing Justice Scalia's and Guru Garner's collaboration.

Marrying up the two themes of the week

CAAFlog's themes of the week have been: (1) fixation with the prospect of the first U.S. court-martial of a civilian since Vietnam; and (2) agitating for appellate review of subjurisdictional courts-martial.

Let's marry up those two themes.

A civilian can't be sentenced to a punitive discharge and so a civilian can't qualify for Article 66 review of a special court-martial conviction unless he or she were absolutely maxed out on confinement. So any civilian prosecuted by a court-martial is likely to have no right to appellate review. The civilian could petition the Judge Advocate General under Article 69 and the Judge Advocate General could refer the case to a CCA under Article 69(d), but the civilian with a brand-spankin' new federal conviction would have no assurance of any direct judicial appeal.

The civilian could qualify for a right to appellate review of a GCM conviction only if sentenced to death or a year or more of confinement. A contractor's GCM felony conviction with a resulting sentence of confinement for 11 months would be reviewed in the Office of the Judge Advocate General -- from which it could be referred to a CCA -- but the civilian contractor would have no right to a direct judicial appeal.

Perhaps Senator Graham -- who inserted the language into the DOD Authorization Act extending jurisdiction over civilians accompanying our forces in contingency operations -- could slip some language into next year's DOD Authorization Act closing the subjurisdictional gap.

An interservice observation and some interservice questions

In the Air Force, the norm is for a CA to disapprove confinement in excess of the PTA's cap. In the Marine Corps and Navy -- at least as of 5 years ago when I last regularly reviewed naval ROTs -- the virtually universal practice was to suspend confinement in excess of the PTA's cap.

Questions:

1. In the Army, is the practice to suspend or disapprove confinement in excess of the PTA's cap?

2. Same question for the Coast Guard.

3. Why do Air Force SJAs and CAs prefer to cut deals in which time above the cap is disapproved rather than suspended?

LCDR Diaz discusses his case

In May of 2007, Lieutenant Commander Matthew Diaz, JAGC, USN, was convicted of 4 out of 5 charges arising from mailing a classified list of Guantanamo Bay detainees to a lawyer at the Center for Constitutional Rights while he was serving in the SJA's office at JTFGTMO in 2005.

LCDR Diaz recently received the 2008 Ridenhour Truth-Telling Prize, as discussed here.

This evening he was on NPR's All Things Considered discussing his case. Here's a link.

Project Purple Outreach (which may also be the title of Prince's next CD)

At today's Project Outreach argument, CAAF heard an Army case aboard an Air Force base.

The Wilcox case is one of the most interesting of CAAF's term. Once the oral argument audio goes up on the CAAF web site, it will no doubt garner more hits than most. Here's the CAAF web site's summary of the case:

GCM conviction of disobeying an officer, violating a regulation by attending a Ku Klux Klan rally, making a false official statement, larceny of government property, and wrongfully advocating anti-government and disloyal statements and encouraging participation in extremist organizations while identifying himself as a "U.S. Army Paratrooper." Granted issue questions whether the evidence was legally sufficient to support a determination that Appellant’s statements to an undercover NCIS agent on the internet were either detrimental to good order and discipline or of a nature to bring discredit upon the Armed Forces when the military nexus reflected in the record consisted of Appellant’s reference to being a "US Army paratrooper," and his statements raise a significant issue under the First Amendment.

The Army Court's opinion is available here. United States v. Wilcox, No. ARMY 20000876 (A. Ct. Crim. App. Dec. 22, 2006). We previously discussed Wilcox here and linked to Sacramentum's overview of the facts here.

Senate Foreign Relations Committee's hearing on prosecution of civilian contractors in combat zones

We previously noted that yesterday the Senate Foreign Relations Committee held a hearing on the issue of prosecution of civilian contractors in combat zones. The written statements of six of the hearing's seven witnesses are available here.

SCOTUS update

The Supremes have distributed the Rhoades cert petition, No. 07-1248, for the 25 April conference. We previously discussed the Rhoades cert petition here and here and looked at CAAF's opinion in the case here.

WSJ Law Blog post on prosecution of civilians in contingency operation areas

The subject of prosecuting civilians in combat areas continues to gain attention. Here's a link to a Wall Street Journal Law Blog post on the subject.

A quick fix for subjurisdictional cases

As an anonymous poster and Nancy Truax point out here (and thank goodness for Nancy Truax -- without her I would believe that the blogosphere is populated entirely by people named "Anonymous" and dead Navy flag officers), it is legally possible for a subjurisdictional case to reach a CCA and, on rare occasions, one actually does. Both offer United States v. Datz, 61 M.J. 37 (C.A.A.F. 2005), as a case in point. (Anonymous also makes the Goldilocks "just right"/preserve the status quo argument that the only cases deserving referral are referred to the CCAs, but I can tell you from personal experience that isn't true. I once asked that a Navy case that went to the Judge Advocate General of the Navy for review under Article 69 be referred to NMCCA. That request was rejected and the reservists who handle Navy and Marine Corps Article 69 appeals got it affirmed in short order. The same issue (though in a different case) later went on to be reviewed by the Supreme Court. The bed is too small, Goldilocks.)

Judge Advocates General do, occasionally, exercise their power to refer subjurisdictional cases to the CCAs. In a search that certainly isn't exhaustive, I found five such cases over the previous decade -- three from the Coast Guard (Datz, Miller, Alexander), one from the Air Force (Swecker), and one from the Navy (Brown-Collins). (I had to go back to 1992 before finding a case -- actually two that year -- that the Judge Advocate General of the Army referred to the Army Court under Article 69 (Warnoch & Womack). Again, my search wasn't exhaustive, so there may be more recent examples. If anyone is aware of any, please share in a comment.)

But this sprinkling of cases hardly quenches the thirst for real appellate review of subjurisdictional GCM and SPCM convictions. Two Army cases actually sought extraordinary relief from the Army Court because the Judge Advocate General of the Army declined to refer them that that court. Dew v. United States, 48 M.J. 639 (A. Ct. Crim. App. 1998); Littleton v. Persons, 7 M.J. 582, 583 (A.C.M.R. 1979).

A thought does occur to me, though. Surely those CAAFlog readers who happen to sit on the Joint Services Committee have already been moved by the unfairness of subjecting servicemembers to federal convictions and yet depriving some of them of the right to a judicial appeal. And surely they are already working up an amendment to Article 66 to remedy that problem. But they will need to enlist Congress's help, so that might take a while. It occurs to me, though, that each service can adopt its own imperfect fix:

I move that the respective services amend the JAGMAN, AR 27-10, AFI 51-201, and COMDINST M5810D, to provide that whenever a case is received in the Office of the Judge Advocate General for review under Article 69, it will be referred to the appropriate CCA under Article 69(d)(1).

Note that this would actually be a good test case for a non-automatic appeal structure, since a servicemember convicted by a special court-martial who receives a subjurisdictional sentence would actually have to be fairly proactive to invoke that right to appeal. (Subjurisdictional GCMs, on the other hand, would automatically go to the Judge Advocate General under Article 69(a) and would therefore go to the CCA under the JAGMAN, etc., amendment unless the accused waived or withdrew from appeal. So for GCMs, the regime would be much like the current automatic Article 66 review, though with Article 69(e)'s less protective scope of review, as Nancy Truax pointed out.)

Do I hear a second?

Coast Guard Court ***[REDACTED]*** published ***[REDACTED]***

The Coast Guard Court issued a split published opinion in an MRE 412 case today. United States v. Smith, __ M.J. ___, Dkt. No. 1275 (C.G. Ct. Crim. App. Apr. 9, 2008).

Cadet Smith of the Coast Guard Academy was convicted of extorting a female cadet to have sex with him, sodomy, and a smattering of lesser charges. A majority of Chief Judge McClelland and Judge Lodge holds that the military judge didn't err in restricting the defense's ability to cross examine the alleged victim about some previous act of misconduct and her lies about it to Cadet Smith that allegedly provided him with the leverage to extort sex from her. In dissent, Judge Tucher concludes that the cross-examination was necessary for a fair trial and that the military judge erred by precluding it.

Who's right? Who knows, because both the majority opinion and the dissenting opinion redact key information about the nature of the information. Four portions of the majority opinion are redacted, while 12 portions of the dissent are excised. The majority opinion explains that it "is undisputed that the details" of the alleged victim's misconduct and lies "fall within Military Rule of Evidence (M.R.E.) 412's exclusion." Smith, slip op. at 4 n.8. And the alleged victim, "a newly-commissioned Coast Guard officer at the time of trial, testified that she was still concerned about the story because 'I'm afraid of rumors when I go from unit to unit.'" Id. The Coast Guard Court therefore decided to "continue to treat the details as specified in M.R.E. 412(c), keeping them nonpublic, although M.R.E. 412 addresses itself to admission of evidence, implying that it applies at trials, and does not mention appellate proceedings. Portions of the briefs were sealed, and we held a closed hearing for oral argument on this assignment of error. We seal portions of this opinion in the same spirit; likewise the dissent." Id.

While it's impossible to tell precisely what's going on, I think I have a pretty good guess. And on that basis, the dissent looks rather powerful. Judge Tucher reasons:

I find it significant that the Government made first use of evidence of SR's secret during its case-in-chief. Although the prosecution was able to present evidence that SR was coerced into unwanted sexual relations with Appellant by the implied threat that he would reveal the facts of her "bad situation," the defense was prohibited from showing that this same fear of disclosure weighed so heavily in SR's mind that she relied on Appellant to disseminate false information concerning her secret. The anomalous result was that the members heard only the Government's evidence on the question of SR's motivation in submitting to Appellant's advances, while the defense was unable to complete the picture by showing the depths of her fear and the lengths she allegedly had gone – and was prepared to go – to shield the facts of her misconduct.

Id., slip op. at 15 (Tucher, J., dissenting).

Even not knowing the full story, that sounds pretty bad. My guess is that CAAF will step in to review this split decision -- and then will have to itself wrestle with how to describe the 412 evidence when it issues its resulting opinion.

One portion of the opinion on which the Coast Guard Court was unanimous also raises concerns for me. Cadet Smith was convicted of sodomy. He argued that if he wasn't guilty of extortion, then under Lawrence v. Texas, 539 U.S. 558 (2003), he couldn't have been guilty of sodomy. The Coast Guard Court, of course, found that he was guilty of extorting the sodomy but -- in a departure from the doctrine of constitutional avoidance -- proceeded to gratuitously address the Lawrence claim anyway. Smith, slip op. at 8-9. Relying on United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004), the Coast Guard Court holds that even if it were to find that the sodomy wasn't extorted, it would still affirm the Article 125 conviction. Why? Because the Regulations for the Corps of Cadets prohibit sexual conduct on board military installations. Smith, slip op. at 9. Because of that regulation, the court gratuitously intones, the act of sodomy "was outside any protected liberty interest recognized in Lawrence." Id. The court observes that "holding otherwise would apparently yield the anomalous result that the regulation would be enforceable as to all forms of sexual conduct except sodomy." Id. That conclusion is, of course, fallacious. Lawrence wouldn't preclude Cadet Smith from being convicted for the offense of VIOLATING A REGULATION. But that's not what the Coast Guard charged Cadet Smith with. The question here is whether under Lawrence he may be convicted of a criminal act of sodomy. Even if there had been no allegation of extortion, the Coast Guard would have been free to charge him with and convict him of violating a regulation by engaging in an act of oral sex on Academy grounds -- just as it could have convicted him of violating a regulation by engaging in fornication on sodomy grounds even though fornication itself isn't a UCMJ violation. See, e.g., United States v. Hickson, 22 M.J. 146, 150 (C.M.A. 1986). Clearly the gravamen of this particular offense was an orders violation. The Coast Guard wasn't upset about the particular form of the sexual relations on Academy grounds; rather, the Coast Guard was upset that there were sexual relations on Academy grounds at all. If the sodomy wasn't extorted, then it should have been charged as an orders violation under Article 92 rather than as sodomy under Article 125 -- with three years' less authorized confinement and possibly different collateral consequences as well.

If CAAF does review Smith and does side with Judge Tucher on the 412 issue, then the Lawrence/Marcum issue would become ripe. At that point, CAAF should recalibrate Marcum by holding that Lawrence does prohibit a conviction for the offense of sodomy where the true gravamen of the misconduct is an order's violation. And that holding wouldn't even require any redactions.

Art. 32 Hearing Delayed in Civilian UCMJ Case

The International Herald Tribune is reporting, here, that the Art. 32 Officer granted delay in the first civilian contractor employee amended Art. 2(a)(10), UCMJ case. Thus, for those waiting for the first civilian Art. 32 since Vietnam . . . you'll just have to wait another __ for United States v. Ali.

SCOTUS SitRep

The SG has waived the United States' right to respond to the cert petition in Rhoades v. United States, No. 07-1248. We previously looked at the Rhoades cert petition here and looked at the underlying CAAF opinion here. And time is running out on the Justices' opportunity to ask the SG to take a position on whether Maryland v. Craig is irreconcilable with Crawford v. Washington. The cert petition in Pack v. United States, No. 07-1176, is slated to go to conference this Friday. If no one asks the SG to respond before then, it will be a cert denial on Monday's order list.

Project Outreach is "historic"

Long-time CAAFlog readers may have gleaned that I'm not much of a Project Outreach fan. But do you know who is? The Missoulian -- Western Montana's online news source. Here's a link to a Missoulian article, again courtesy of NIMJ.org, declaring yesterday's Project Outreach at the University of Montana School of Law "a historic stop in Missoula."

The article, however, refers to Judge Erdmann as "one of four panel judges" and then mentions every judge but Judge Ryan. Was she not at yesterday's argument?

Professor Hansen on United States v. Ali

NIMJ's web site notes this Jurist commentary by Professor Vic Hansen about United States v. Ali, the potential court-martial case of a civilian contractor in Iraq.

Some thoughts about Denedo

Yesterday I substitute taught a law school military justice class. Part of the assigned reading for the day was Denedo v. United States, 66 M.J. 114 (C.A.A.F. 2008), so I had both the opportunity and imperative to study it closely.

But before I set out some of my views, let me tell you how the students saw it. We held a moot court (before I provided any of my analysis, so at this point the students were untainted by my views) during which we assumed that the Supremes had granted the SG's hypothetical cert petition to challenge CAAF's jurisdiction decision in Denedo. Following oral argument, the student justices voted 5-4 to reverse CAAF.

Now on to my thoughts.

The Denedo majority and Judge Ryan's dissent weren't two ships passing in the night, each unaware of the other's existence. Rather, the majority was a 74 whose crew largely ignored the dissent frigate as it sailed past, raking the majority with cannon fire from bow to stern. Of course, the 74 remained afloat with that necessary number of three. But the frigate may sink her yet. Judge Ryan's analysis could well become the basis for a cert petition that could send the 74 to the bottom. The power of Judge Ryan's analysis -- already formidable -- might be enhanced still more by her biography. As a former Supreme Court clerk, she is well know to most of the Justices. In his wonderful recent look at the U.S. Chamber of Commerce's Supreme Court practice, GWU Law Professor Jeffrey Rosen observed, "Because Supreme Court clerks have tremendous influence in making recommendations about what cases the court should hear, [Robin Conrad, Senior Vice President of the National Chamber Litigation Center,] told me, having well-known former clerks involved in submitting a brief can be especially important." Jeffrey Rosen, Supreme Court Inc. N.Y. Times Mag., March 16, 2008. Having a well-known former clerk as the dissent's author would also seem potentially important.

But even without any such bonus, the dissent might still outgun the 74.

I am a disciple of the Gierkian school of CAAF jurisdiction. As Judge Gierke explained in his dissenting opinions in both Goldsmith v. Clinton, 48 M.J. 84 (C.A.A.F. 1998), and United States v. Leak, 61 M.J. 234 (C.A.A.F. 2005), statutes providing jurisdiction to Article I courts are to be narrowly construed. (Note that this is the Gierkian school rather than the Gierkian/Crawfordian school because Judge Gierke adhered to this position in both Goldsmith -- where it favored the government -- and Leak -- where it favored the defense. Whether his view was right or wrong (and I believe it was right), it was clearly a principled view. Judge Crawford's votes in Goldsmith and Leak -- each supporting the government at the apparent expense of analytic consistency -- at least appeared to be outcome driven.)

I don't adhere to the Gierkian school for any ideological or partisan reason. Rather, I adhere to it in a good faith effort to interpret the law. So I find myself in basic agreement with Judge Ryan's interpretation of Article 76. As a matter of statutory construction, Congress's creation of one and only one specific exception to the general finality rule -- a petition for new trial -- suggests that this was meant to be the only exception. Expressio unius est exclusio alterius.

But an absolutely unadorned interpretation of Article 76's plain language is unavailable and what puts it beyond reach is, of all things, Clinton v. Goldsmith. For in that opinion, the Supremes expressly recognize an additional extra-statutory exception to Article 76: "[I]f a military authority attempted to alter a judgment by revising a court-martial finding and sentence to increase the punishment, contrary to the specific provisions of the UCMJ . . . [and] such a judgment had been affirmed by an appellate court[, then] . . . as the Government concedes, the All Writs power would allow the appellate court to compel adherence to its own judgment." Clinton v. Goldsmith, 526 U.S. 529, 536 (1999) (internal citation omitted). This seems to indicate that even post-Article 76 finality, CAAF would have the power to issue a writ to command compliance with its decision.

So say, for example, on 2 January 2007, CAAF issued an opinion reducing PFC Jones' sentence that had the effect of changing Jones' release date from 1 January 2011 to 1 January 2008. Let's further assume that in April 2007, Jones' case became final under Article 76. Then let's assume that come 3 January 2008, Jones was still sitting in his cell at the USDB, where officials refused to release him because they disagreed with CAAF's reasoning in United States v. Jones. Under that language from Goldsmith, Jones could go to CAAF, which could issue a writ of habeas corpus compelling Jones' release even though the case was already final under Article 76.

Judge Ryan's dissent acknowledges that extra-statutory exception to the Article 76 finality rule. See Denedo, slip op. at 9 n.2 (Ryan, J., dissenting). But neither the dissent nor Goldsmith itself appears to explain the source of this authority.

Note that it wasn't necessary for the Supremes to recognize such a post-finality power to compel adherence to CAAF's judgments. Let's say CAAF didn't have that power and Article 76 were understood as barring any exercise of post-final powers by any court established by the UCMJ with the exception of the statutory petition for new trial escape valve. In that case, PFC Jones could file a petition for a writ of habeas corpus under 28 U.S.C. § 2241 in the U.S. District Court for the District of Kansas, which would presumably issue the writ. But the Supremes nevertheless chose to recognize such a power in CAAF itself. And I assume that the unarticulated basis for that power is CAAF's status as a "Court." Congress very intentionally chose to establish CMA as a "Court" -- remember that it was originally to be called the "Judicial Council" before the House Armed Services Committee changed it to the Court of Military Appeals. So CAAF's status as a "court" carries with it certain inherent powers of courts.

But what are the limits of those powers? Footnote 2 of Judge Ryan's dissent suggests that those limitations are the ability to compel adherence to its judgments and the power to determine whether it had jurisdiction to issue its initial judgment. But are those the absolute boundaries of the authority that arises from CAAF's status as a court? I'm not sure.

Now whatever the limits of that power, I don't believe it reaches as far as the authority asserted by the majority to potentially reverse a conviction based on alleged facts and a legal theory that had never been advanced in any military court pre-Article 76 finality. So I don't intend to suggest that CAAF's post-finality power arising from its status as a "Court" justifies the particular exercise of authority at issue in Denedo. And perhaps footnote 2 of Judge Ryan's dissent nails the limits of that power exactly and it extends to those two, and only those two, actions. But if the Supremes are to review Denedo, I would like to see them spell out the precise source of CAAF's extra-statutory post-Article 76 power that it recognized in Goldsmith and the precise limits of that power.

Senate hearing on criminal jurisdiction over civilians in combat zones tomorrow

The Senate Foreign Relations Committee will hold a hearing at 9:30 tomorrow morning called, "Closing Legal Loopholes: Prosecuting Sexual Assaults and Other Violent Crimes Committed Overseas by American Civilians in a Combat Environment." Here's a link with the witness list.

Because the hearing is being chaired by Senator Nelson, I assume (but don't actually know) that it's a hearing of the Foreign Relations Committee's International Operations and Organizations, Democracy, and Human Rights Subcommittee. In addition to Senator Nelson, the members of that subcommittee are Senators Vitter (do you know how hard for me NOT to insert the obvious joke here?), Casey, DeMint, Feingold, Isakson, Mendez, Voinovich, and Webb, plus Senators Biden and Lugar who are ex officio members of the subcommittee.

Some numbers

During Fiscal Years 2005, 2006, and 2007, 11,072 servicemembers were convicted by general and special courts-martial. During those same combined three years, 8,648 cases were received by the Judge Advocates General for appellate review, leaving a difference of 2,424.

Now, that doesn't mean there were exactly 2,424 subjurisdictional cases, because the two figures in the paragraph above refer to slightly different populations of cases. We know precisely how many trials were held during each fiscal year and the number of resulting convictions. But we don't know precisely how many of each year's annual total went on to appellate review. Rather, we know the number of cases actually received for appellate review in those years. But a record of trial received for appellate review in November 2007 was tried in Fiscal Year 2006, not Fiscal Year 2007. This slight disconnect is demonstrated by the fact that in FY 06, the Judge Advocate General of the Navy actually received 46 more cases for appellate review than total of Navy and Marine Corps GCM and SPCM convictions during that fiscal year. (That probably means that some review shop found a couple of seabags full of ROTs from 1985 and shipped them all to NAMARA.)

But the effects of this slight population difference should be minimized by looking at a three-year time span. So while we can't absolutely conclude that 22% of all GCM and SPCM convictions over the last three fiscal years resulted in subjurisdictional sentences, that's probably pretty close.

With all that as prelude, WHY IS IT OKAY THAT SOMEWHERE IN THE NEIGHBORHOOD OF 800 SERVICEMEMBERS PER YEAR ARE CONVICTED BUT HAVE NO RIGHT TO APPEAL THEIR CASES IN A JUDICIAL SYSTEM?

I don't think of myself as a cheerleader for the military justice system, but I often opine that on average, it does a better job of handling the run-of-the-mill criminal case than does the typical state court system. And one important reason for that is that unlike in state systems -- where criminal defendants often go unrepresented because they earn too much money to qualify for a public defender but have insufficient discretionary income to afford to hire a lawyer -- almost every defendant in the military justice system is represented by counsel. (On the other hand, for a lot of reasons, I think the military justice system does a poorer job of handling extremely serious or complex cases than does the typical state court system.)

But it seems a serious deficiency that unlike in state or federal criminal justice systems, there are a substantial number of GCM and SPCM convictions -- which carry the lifetime stigma of a federal conviction -- that can never receive judicial appellate review.

We can do better and we should do better. Congress should amend the UCMJ to provide that every general court-martial or special court-martial resulting in an approved finding of guilty is eligible for review by the Court of Criminal Appeals. That would be a much more important reform than broadening military appellants' right to file an unsuccessful cert petition with the Supremes.

Two new grants from last week

I neglected to post two new grants that CAAF announced last week:

WHETHER THE MILITARY JUDGE FAILED TO ESTABLISH THAT APPELLANT TOOK ANY SUBSTANTIAL STEP BEYOND MERE PREPARATION TO CROSS THE CRIMINALITY THRESHOLD OF "ATTEMPT," THUS RENDERING THE PLEA OF GUILTY TO CHARGE II, SPECIFICATION 2, IMPROVIDENT.

United States v. Rowe, __ M.J. ___, No. 07-0813/NA (C.A.A.F. Apr. 2, 2008) (order granting review). Here is a link to NMCCA's opinion in the case. United States v. Rowe, No. NMCCA 200600184 (N-M. Ct. Crim. App. June 26, 2007).

WHETHER THE LOWER COURT ERRED IN NOT MANDATING A NEW STAFF JUDGE ADVOCATE RECOMMENDATION IN COMPLIANCE WITH RULE FOR COURTS-MARTIAL 1106(f) BE SERVED ON APPELLANT'S TRIAL DEFENSE COUNSEL AFTER IT REMANDED APPELLANT'S CASE TO A NEW CONVENING AUTHORITY FOR CLARIFICATION OF AN AMBIGUOUS ACTION.

United States v. Mendoza, __ M.J. ___, No. 08-0246/NA (C.A.A.F. Apr. 2, 2008) (order granting review). NMCCA's opinion is available at 65 M.J. 824 (N-M. Ct. Crim. App. 2007). We discussed NMCCA's Mendoza opinion here.

Reconideration denied in Denedo

Code 46 has now completed the first requirement on the road to an SG cert petition -- it has unsuccessfully petitioned CAAF for reconsideration of its Denedo decision. See Denedo v. United States, __ M.J. ___, No. 07-8012/NA (C.A.A.F. Apr. 4, 2008). It will be interesting to see whether the SG seeks to offer the Supremes some kind of package deal on Denedo and Lopez de Victoria.

Yet another student-authored piece on criminal jurisdiction over private contractors

It seems that jurisdiction over private contractors in contingency operation areas is becoming the student-written law review publication topic of the quarter. Here's a link to Jonathan Finer, Recent Developments, Holstering the Hired Guns: New Accountability Measures for Private Security Contractors, 33 Yale J. Int'l L. 259 (2008). (The link will open to another recent development -- scroll down to page 259.)

UPDATE (By No Man): Thanks to Anonymous, we now learn that Mr. Finer is well versed in the Baghdad landscape. See here Mr. Finer's tour in Iraq as WaPo correspondent, now on leave from his writing duities at Yale Law.

More details about civilian contractor case -- United States v. Ali -- emerge

Here is a link to a U.S. News & World Report article providing in-depth coverage of the Ali case

CORRECTION: New NMCCA and Navy-Marine Corps Trial Judiciary Chief Judges

We have received a correction from an anonymous poster: Captain MacKenzie is the new Chief Judge of the Trial Judiciary (apparently replacing Col Day). Captain O'Toole is the new NMCCA Chief Judge.

(We saw the invitation for the NMCCA Chief Judge's investiture, but it didn't actually identify who the new Chief Judge is. We were advised, apparently erroneously, that it was CAPT MacKenzie.)

Thanks for the correction, anonymous correcting person.