Wednesday, April 30, 2008

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 Oct. 23, 2007), an unpublished opinion by Senior Judge Geiser, a 2-1 NMCCA majority acknowledged the language's similarity to that used in United States v. Wilson, 65 M.J. 140 (C.A.A.F.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?


Anonymous said...

Ever notice that when CAAF overrules past precedent, the court does it in a summary disposition, without explanation, and without acknowledging the error of the past opinion? Can't the court just admit its error and move on?

No Man said...

Here is the action from Politte' looks familiar:

the sentence is approved except for that part of the sentence extending to a bad conduct discharge.

Is CAAF distinguishing Politte based on two commas and use of active vs. passive voice?

Here is the Politte rationale:

On the other hand, the surrounding documentation provides presupposes the approval of a bad-conduct discharge, as it
expressly recommends that the bad-conduct discharge be approved, but not executed until the completion of appellate review. Third, in requesting clemency, the defense did not request disapproval of the bad-conduct discharge –- only suspension.
Finally, in the paragraph immediately following Appellant’s sentence, the convening authority took action forwarding the
record to the Navy-Marine Corps Appellate Review Activity pursuant to Article 66, UCMJ. Such an action is strong evidence that the convening authority intended to approve the bad-conduct discharge. Based on our review of all the surrounding documentation
leading up to the convening authority action, we decline to adopt Appellant’s position that the plain language indicates the convening authority intended to disapprove of the adjudged bad- conduct discharge.
ample support for the opposite conclusion: that in fact, the convening authority intended to approve the adjudged bad-conduct discharge. First, the pretrial agreement allowed for the convening authority to approve the bad-conduct discharge.
Second, the recommendation of the staff judge advocate

I have no idea how that looks as a cut and paste job, but it will suffice to summarize that the fourth factor in CAAF's analysis is forwarding for review by NMCCA. Maybe it is a 4 part test and Dowis only met part four, unlikely.

Cloudesley Shovell said...

Politte looked at four factors: (1) the PTA; (2) the SJAR; (3) the accused's clemency request; and (4) the forwarding of the record for appellate review. Dowis only looked at one factor--forwarding for appellate review. (While previewing this, I see that no man made the somewhat the same point, and beat me to it--what if NMCCA reaffirms after reviewing all four factors?)

That being said, the language of the action in Dowis is functionally identical to that in Politte. Given that CAAF now says that such language unambiguously disapproves the BCD, when before it was ambiguous, I would say that the shaky logic and reasoning of Politte has suffered the same fate as HMS Association that fateful night at the Isles of Scilly. If Politte is not quite dead, it is certainly dying on the shore of Porthellick Cove, and Dowis is stealing its jewelry.

What's most disappointing about Dowis is that an O-5 SJA prepared an action for the CA that contained language that was condemned in Politte more than a year after Politte was decided. What kind of incompetent SJA continues to cut-n-paste from the office gouge while ignoring current case law and the plain language of MCM Appendix 16?

John O'Connor said...

The court's methodology makes no sense. As I have stated elsewhere, a CA's action is a unilateral document and it makes no sense to use contract construction principles (which are designed for bilateral documents) to construe them.

Anonymous said...

I remember a case came out a year or so ago in which NMCCA castigated everybody - defense and government alike - for writing briefs on a case in which it had no jurisdiction. That was a good catch. All parties went into auto-pilot without checking if jurisdiction was satisfied. That citation would have completely undercut the idea that merely "forwarding" the case to NAMARA resolves any ambiguity or bestows legitimacy to the nature of the discharge.

Anonymous said...

Why not talk a Garnerian approach to actions, and break it down into simple sentences?

Anonymous said...

Good thought re. Garner. I always found this part of the SJAR sentence construction Kafkaesque. (Or, like 11th Amendment construction - evolving to be the exact opposite of how it started).

I hate to admit it, but as a rookie defense counsel, the first time I read an SJAR after my first trial, I thought that the CA had changed his mind, decided to show mercy, and not approve the punitive discharge. "Wahooo!" I thought. But, alas, as I later found out, I was a lawyer now. Simple thoughts must be fragmented into complex language.

Speaking of Garner - where's our review of the Garner, Scalia book: Making Your Case: The Art of Persuading Judges. I went to B&N yesterday, and they did not even have the book in their database!

(BTW: Scalia recently said that torture is not cruel and unusual punishment because it is not a punishment. I guess Bryan Garner better work on re-writing the 8th Amendment, too)

Cloudesley Shovell said...

Only very skilled lawyers and judges with years of important legal experience could come up with the insult to the English language known as MCM, Appendix 16. That being said, how many SJAs actually read it? Not enough. It's not that hard. It could, however, stand wholesale revision to restore some plain English to our practice.

Here's a bullet-proof basic action: "The sentence is approved and will be executed in accordance with the law."

One can also break the action into distinct sections: (1) Approved sentence; (2) suspension, as applicable; (3) execution. If there are more issues to address, see RCM 1107(f)(4), address each issue in a separate subparagraph to avoid the jumbling of clauses in a ridiculous run-on sentence.

Christopher Mathews said...

Interesting case. Especially in light of the majority's willingness to reintepret the convening authority's direction in United States v. Tippit, 65 M.J. 69 (2007), I wonder where CAAF draws the line?

Anonymous said...

In US v Tippit the majority decided that what the CA said is not what he meant, but in this case, the opposite is true. The current CAAF, after more than a year together, seems like they are beginning to draw the line at sloppy lawyering, finally. Too late for Tippit, but I'm sure Judge Erdmann is glad to see his colleagues coming around to his way of thinking.