NACDL resolution on monitoring of military defense counsel's computers

NIMJ's web site reports that the "Executive Committee of the National Association of Criminal Defense Lawyers has [unanimously] adopted a resolution calling on the Secretary of Defense to rescind the Department's May 9, 2008 policy on use of DoD information systems (Standard Consent Banner and User Agreement)." The full report and resolution are available on NIMJ's web site here. Here's the resolution in full:

WHEREAS the Executive Committee of the National Association of Criminal Defense Lawyers is aware that on May 9, 2008 the Department of Defense promulgated a directive, titled, "Policy on Use of Department of Defense (DoD) Information Systems - Standard Consent Banner and User Agreement," and

WHEREAS this directive requires military defense counsel, as a precondition to being able to log onto a government-provided computer, to consent to the interception, monitoring, and searching by law enforcement governmental authorities of attorney-client privileged information stored on government-provided computers, and

WHEREAS prohibiting the "use" of such intercepted privileged material does not cure the forced violation of the attorney-client privilege and attorney work-product privilege by the government’s improper interception, monitoring, or searching, and

WHEREAS this directive strikes at the core of the American adversary system of criminal justice by hampering and chilling military defense counsel in the effective performance of their duty, and denies their clients the right to effective assistance of counsel, and

WHEREAS this directive destroys any confidence among all of our military personnel accused of crime that their communications with counsel and the work product of counsel are protected from warrantless intrusion by governmental authorities, including prosecutors and law enforcement,

THEREFORE BE IT RESOLVED that the National Association of Criminal Defense Lawyers calls on the Secretary of Defense to rescind the May 9, 2008 directive and provide a revised directive policy that prohibits the warrantless monitoring or searching of all government-provided computers of military defense counsel, and prohibits the interception and seizure of all attorney-client privileged information, as well as the use of such information, in the military justice system or for any adverse administrative or personnel actions.

We have previously discussed this issue, including here, here, here, and (somewhat tangentially) here.

Some interesting appellate leave stats

I was recently up in Newport corrupting young legal minds at the Naval Justice School where, as usual, I learned more than I taught. One of the course participants called my attention to an article by Col Ralph Miller, then the head of Navy-Marine Corps Appellate Government. Col Ralph F. Miller, The Lost Battalion, Marine Corps Gazette, Jan. 2007, at 53. Here's a link, though you'll have to navigate through the table of contents link to the article; I don't seem to be able to link to the article directly.

Among the interesting data points set out in the article:

The number of Marines on appellate leave is "approximately 1,600, sometimes more."

"In the aggregate, Marines and sailors on appellate leave (the vast majority are Marines), and their dependents receive approximately $2.4 million of purchased medical care per year . . . . That figure does not include the value of care provided to them at military facilities."

"In 2003, 12 individuals on the rolls of NAMALA died while on appellate leave." When such individuals die before the CCA renders its opinion in the case, see generally United States v. Ribaudo, 62 M.J. 286 (C.A.A.F. 2006), "[t]he conviction is null and void, and all rights and privileges must be restored. His beneficiaries will receive the SGLI payment of $400,000; backpay, as adjusted for any earnings or public assistance received; and death gratuity."

SG waives response in mistake-of-age-as-defense-to-sodomy case

On Wednesday, the SG waived the United States' right to respond to the cert petition in Wilson v. United States, No. 07-1447.

There are four military cases currently pending on the Supremes' docket. Stevenson, No. 07-1397, has been distributed for the 5 June conference. Wallace, No. 07-1403, has been distributed for the 12 June conference. Wilson hasn't yet been distributed. And the SG hasn't yet waived the response in Tillery, No. 07-11102, a pro se IFP petition.

Two CAAF opinions

CAAF issued two divided opinions today. In United States v. Ortiz, __ M.J. ___, No. 07-0555/AR (C.A.A.F. May 30, 2008), Judge Ryan wrote for a four-judge majority holding that the military judge violated the Sixth Amendment by ordering the courtroom cleared while the 11-year-old alleged victim testified without making the findings necessary to warrant closing the proceedings to the public. Judge Stucky dissented.

In United States v. Melson, __ M.J. ___, 08-5003/AF (C.A.A.F. May 30, 2008), Judge Erdmann wrote for a three-judge majority holding that the Air Force Court erred by finding IAC without first obtaining and considering a declaration from the trial defense counsel. (Appellate government counsel offered such an affidavit in a reconsideration petition after AFCCA ruled; AFCCA declined to receive it.) Judge Stucky, joined by Judge Ryan, dissented. Melson couldn't be more inside baseball unless it had been argued at a Project Outreach in Cooperstown. That said, I find it fascinating and will explore it further over the weekend. The almost certain upshot of the opinion will be bifurcated litigation of IAC claims, contrary to appellate courts' normal abhorrence of "piecemeal litigation."

10 . . . 9 . . .8

Now that CAAF has issue two opinions today, there are just 8 cases remaining to be decided this term.

The 8 remaining cases are:

United States v. Elfayoumi, No. 07-0346/AR (argued 26 Feb) (members challenge case)

United States v. Lee, No. 07-0725/MC (argued 11 Mar) (trial defense counsel conflict case)

United States v. Ober, No. 07-0722/AR (argued 17 Mar) (child pornography elements, inter alia, case)

United States v. Czachorowski, No. 07-0379/NA (argued 18 Mar) (hearsay/confrontation case)

United State v. Bright, No. 07-0269/AR (argued 8 Apr) (legal sufficiency case)

United States v. Wilcox, No. 05-0159/AR (argued 10 Apr) (First Amendment free speech case)

United States v. Roach, No. 07-0870/AF (argued 6 May) (appellate IAC case)

United States v. Bartlett, No. 07-0636/AR (argued 6 May) (Article 25 case)

Today's Melson decision resolved the last of the five Air Force JAG certified cases of the term. The Air Force Court was an impressive 4-for-5 in those cases. In the only other specified issue case to be orally argued this term, CAAF overturned ACCA. United States v. Gutierrez, __ M.J. __, No. 08-5004/AR (C.A.A.F. May 27, 2008).

Judge Brownback removed from Gitmo case?

Today, apparently, is Gitmo news day.

According to lawyers for Guantanamo Bay detainee Omar Khadr, Army Colonel Peter E. Brownback III, the military judge who had been presiding over Khadr's trial, has been replaced.

Judge Brownback previously complained of being "badgered and beaten" by the prosecution to set a trial date for Khadr, and recently ordered the prosecution to turn over evidence to the defense. The judge also said he had "taken a lot of heat," or words to that effect, from Pentagon officials who disagreed with his rulings.

Neither the Pentagon nor Judge Brownback have commented publicly on his status. Judge Brownback had earlier expressed an interest in retiring.

Former Gitmo Prosecutor Denied DMSM

The former chief prosecutor for the military commissions at Guantanamo Bay, Air Force Colonel Morris "Mo" Davis, has been denied the Defense Meritorious Service Medal.

As reported on CAAFlog earlier this month, Colonel Davis' testimony in the trial of Salim Hamdan led to a ruling by the military judge to disqualify Air Force Brigadier General Thomas Hartmann, the legal adviser to the convening authority, from any further participation in the case. The judge, Navy Captain Keith Allred, concluded that the defense had presented "substantial evidence" that Hartmann was too closely aligned with the prosecution. Judge Allred further found that that attention focused on the dispute "seriously called into question" General Hartmann's neutrality and objectivity.

On the heels of the Hamdan ruling comes the latest chapter in the saga: Colonel Davis contends he was denied an award based on his conflict with General Hartmann. General Hartmann, while denying any retribution, has tactily acknowledged that he played a part in the decision to deny the award. "My recommendation," he said, "was based on my experience with Col. Davis," that showed Colonel Davis displayed a lack of leadership as chief prosecutor. "He had a very important position as chief prosecutor, and had an obligation to lead people, to inspire them and to train them ... And that wasn't happening."

Army Colonel Kelly Wheaton, senior military adviser to the DoD General Counsel, however, explicitly linked the decision to deny the award to Colonel Davis' clash with General Hartmann. "I wrote in my recommendation for disapproval that you quit your position when you were needed because you did not want to be supervised by a superior officer with whom you had a difference of opinion," Colonel Wheaton said in an e-mail message to Colonel Davis. Wheaton went on to explain that "... no defense decoration shall be awarded or presented to any service member whose entire service during or after the time of the distinguished act, achievement, or service has not been honorable."

Colonel Davis has criticized the commissions since stepping down as chief prosecutor in October 2007, suggesting that political considerations were being brought to bear in the decision-making process. Defense counsel for a number of Gitmo defendants have already alleged that their clients' trials are being scheduled for their "strategic political value" in advance of this year's Presidential elections. The decision to deny Colonel Davis an award based on the troubled interaction between his office and the legal adviser may be used in further defense motions alleging unlawful command influence in the commission process. In addition, Colonel Davis' decision to inform defense counsel that he will not participate in any more cases, citing his concerns about further retaliation, may also prove fertile grounds for such claims.

NMCCA executes about face in Dossey

When we last visited Dossey, an NMCCA panel had issued an opinion dismissing the Article 62 appeal. United States v. Dossey, No NMCCA 200700537 (N-M. Ct. Crim. App. Oct. 23, 2007) (Dossey I). While Judge White wrote separately, all three judges on the panel agreed that NMCCA didn't have jurisdiction over the case.

In its new published opinion issued on 20 May, the panel reverses itself. United States v. Dossey, __ M.J. ___, No. NMCCA 200700537 (N-M. Ct. Crim. App. May 20, 2008) (Dossey II).

Senior Judge White writes for himself and Judge Couch, holding that Article 62 grants jurisdiction to a CCA to review a military judge's declaration of a mistrial and going on to reverse Judge Booker's mistrial ruling. Senior Judge Vollenweider, who authored the Dossey I majority opinion, dissents. He argues that CCAs don't have jurisdiction to review mistrial declarations and that even if NMCCA did have such jurisdiction, Judge Booker didn't abuse his discretion in granting a mistrial and thus shouldn't be reversed.

In contravention of (and without even mentioning) previous NMCCA decisions that held that government appeals are disfavored, see, e.g., United States v. Pearson, 33 M.J. 777 (N.M.C.M.R. 1991), the Dossey II majority takes a very broad view of Article 62 jurisdiction, suggesting that Article 62, like the federal Criminal Appeals Act, was "intended to remove all statutory barriers to Government appeals and permit whatever appeals the Constitution would permit." Dossey II, slip op. at 4 (quoting United States v. Wilson, 420 U.S. 332, 337 (1975), discussing 18 U.S.C. § 3731)).

The majority offered this description of the jurisdictional issue in the case:

Article 62 gives this court jurisdiction over an order or ruling that "terminates the proceedings." The first question that must be answered, therefore, is whether a mistrial "terminates the proceedings."

Dossey II, slip op. at 5.

The court then explained:

On its face, it is unclear whether the phrase "terminates the proceedings" means to terminate the proceedings before the particular court-martial to which the charge has been referred, or all proceedings on the charge. Obviously, because a mistrial does not terminate all proceedings on a charge (since retrial may be attempted), if that phrase means the latter, we do not have jurisdiction. To resolve this ambiguity, it is appropriate to consider the legislative histories of Article 62 and the Criminal Appeals Act, 18 U.S.C. § 3731, the case law interpreting both statutes, and the context in which the Uniform Code uses the word “proceedings” in its other articles.

Dossey II, slip op. at 6.

Oddly, in looking at the case law interpreting Article 62, the majority didn't look to (or, again, even acknowledge) NMCCA's own precedent holding that government appeals are disfavored. In Pearson, the court explained: "The statutes authorizing such appeals are construed strictly against the right of the prosecution to appeal." 33 M.J. at 779. That principle is sufficient to resolve the ambiguity that the Dossey II majority identified.

The majority then makes a textual analysis of the word "proceedings" and decides that with two exceptions (one of which isn't relevant), the UCMJ uses the word "proceedings" to refer to a single court-martial trial and not to the possibility of multiple trials on the same set of charges. But in this textual discussion, the majority does not note that at one point in Article 62, Congress used the word "proceeding" [singular] while at another point used the word "proceedings" [plural]. Article 62 provides, in relevant part:

(a) (1) In a trial by court-martial in which a military judge presides and in which a punitive discharge may be adjudged, the United States may appeal the following (other than an order or ruling that is, or that amounts to, a finding of not guilty with respect to the charge or specification):
(A) An order or ruling of the military judge which terminates the proceedings with respect to a charge or specification.
(B) An order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding.

10 U.S.C. § 862 (2000) (emphasis added).

Given Congress's use of the singular and the plural so close together, it seems quite plausible that Congress might have intended subsection (A) to apply only when ALL PROCEEDINGS have been terminated, while intending subsection (B) to apply whenever crucial evidence is excluded from a PARTICULAR PROCEEDING. On the other hand, the U.S. Code does provide this guidance for interpreting codal language:

In determining the meaning of any Act of Congress, unless the context indicates otherwise--
words importing the singular include and apply to several persons, parties, or things;
words importing the plural include the singular[.]

1 U.S.C. § 1.

So a plain language analysis seems to create more ambiguity. The plain language doesn't resolve the ambiguity that the Dossey II majority identified.

That's where the interpretative canons come in. Before Dossey II, NMCCA strictly construed Article 62. Without acknowledging that it was doing so, Dossey II changed that rule of construction. Maybe that change is for the better; maybe not. But in courts that sit in panels, traditionally only an en banc decision can change a previous published opinion's interpretation of the law. So if the 2-1 split in Dossey II weren't enough to support en banc reconsideration, and if two judges' changes in their own positions from Dossey I weren't enough, then surely this break with the court's own precedent cries out for en banc rehearing. Regardless of whether Dossey II or Pearson prevails, NMCCA sitting en banc must choose between those two precedents. A panel shouldn't simply substitute its own preference for the court's precedent.

While I am critical of the majority opinion for ignoring relevant NMCCA precedent, I do commend Senior Judge White's opinion for expressly noting his change of position and setting out an explanation for why he did so. See Dossey II, slip op. at 7-8 n.13.

In reversing the military judge's mistrial ruling, the majority emphasized the steps that the military judge could have but didn't take before declaring such a drastic remedy for the Government's use of inadmissible evidence before the members. The majority ultimately held, "[B]ecuase the trial judge demonstrated no effort to exercise sound discretion in deciding whether there was manifest necessity for a mistrial, and the necessity for a mistrial is not manifest from the record, the judge abused his discretion." Id., slip op. at 9. In a footnote, the majority also observed: "Upon remand, the military judge is of course free to revisit the issue of the necessity for a mistrial, paying due attention to the appropriate factors. If the judge concludes, after due consideration and in the exercise of sound discretion, that a mistrial is necessary to ensure a fair trial, nothing in this decision prevents him from again declaring a mistrial." Id., slip op. at 10 n.16.

But before the case returns to Judge Booker to undertake that analysis, I suspect we'll see a Dossey III.

Link to new published NMCCA en banc decision

Here's a link to United States v. Abdirahman, __ M.J. ___, No. NMCCA 200401082 (N-M. Ct. Crim. App. May 19, 2008) (en banc). I won't have a chance to comment on it tonight, but I will over the weekend unless someone beats me to it.

Striking similarity between NMCCA's latest two published opinions

Both Abdirahman and Dossey were the subject of "hurry up and decide" petitions for extraordinary relief filed at CAAF.

On 3 April 2008, CAAF noted that counsel for Seaman Recruit Abdirahman had filed a petition for a writ of mandamus ordering NMCCA to withdraw its order granting the Government's motion for en banc reconsideration or, alternatively, ordering NMCCA to decide the case within 45 days. United States v. Abdirahman, __ M.J. ___, No. 08-8008/NA (C.A.A.F. Apr. 3, 2008). CAAF's order doesn't set out a timeline, but NMCCA issued its original decision on 16 November 2006, so it appears that en banc review was pending for longer than a year. Interestingly, the Government responded to CAAF's show cause order by agreeing with the Appellant's request for an order directing a decision within 45 days. Id. CAAF denied the portion of the petition for extraordinary relief seeking to revoke NMCCA's en banc reconsideration order, but ordered NMCCA to "either decide the case within 45 days or provide this Court with an explanation of the need for further consideration." Id. Day 45 was a Sunday; NMCCA's en banc decision is dated the following day.

In United States v. Dossey, __ M.J. ___, No. NMCCA 200700537 (N-M. Ct. Crim. App. May 20, 2008), the Government sought en banc reconsideration after losing an Article 62 appeal in panel on 23 October 2007. On 5 December 2007, NMCCA denied en banc reconsideration but granted reconsideration in panel. With the panel reconsideration still pending more than five months later, on 13 May 2008, CAAF docketed a "hurry up and decide" petition for extraordinary relief filed by the Navy-Marine Corps Appellate Government Division. In re Dossey, __ M.J. ___, Misc. No. 08-8018/NA (C.A.A.F. May 13, 2007). In a decision dated a week after that petition was docketed, the panel reversed its earlier decision and granted the Government's Article 62 appeal.

Will these experiences lead to more "hurry up and decide" petitions for extraordinary relief?

NMCCA issues two stealth published opinions

NMCCA has released a fascinating published opinion by a divided panel in United States v. Dossey, __ M.J. ___, No. NMCCA 200700537 (N-M. Ct. Crim. App. May 20, 2008). It's available on NKO, but isn't yet on NMCCA's web site.

NMCCA has also released a divided published en banc decision in United States v. Abdirahman, __ M.J. ___, No. NMCCA 200401082 (N-M. Ct. Crim. App. May 19, 2008) (en banc), that isn't available on either NKO or NMCCA's web site.

I'll at least post both on CAAFlog.com and provide links here tonight. Time permitting, I'll also discuss the opinions.

NIMJ and the National Veterans Legal Services Program file amicus brief in Stevenson

NIMJ and the National Veterans Legal Services Program have filed an amicus brief at the Supremes supporting cert in Stevenson v. United States, No. 07-1397. (Stevenson deals with whether medically retired veterans who don't receive retirement pay from DOD but rather receive compensation from the VA are subject to court-martial jurisdiction. The full cert petition is available here.) The NIMJ/NVLSP amicus is available here.

New pro se IFP cert petition docketed

The Supreme Court yesterday docketed a pro se IFP cert petition in the case of Tillery v. United States, No. 07-11102.

Tillery is confined at the USDB. CAAF summarily granted and affirmed on 1 April 2008. United States v. Tillery, __ M.J. ___, No. 07-0776/AR (C.A.A.F. Apr. 1, 2008) (summary disposition). I haven't been able to find an ACCA opinion in the case.

Wallace cert petition distributed for conference

The cert petition in Wallace v. United States, No. 07-1403, has been distributed for the 12 June conference. We will be monitoring the case to see if it gets a nibble in the form of a request for a response from the SG before then.

And thanks again to the anonymous poster who pointed out the error in the original cert petition. We were able to get it fixed before it was distributed.

[Disclaimer: As the paragraph above suggests, I am one of petitioner's counsel.]

Arraignment in civilian contractor court-martial tomorrow

The No Man has sent me a UPI report indicating that "Alaa 'Alex' Mohammad Ali is scheduled to be arraigned Thursday at the Camp Victory courthouse in Iraq on a charge of aggravated assault for allegedly stabbing another contractor, the U.S. military said in a news release."

Summary affirmance in search and seizure case

On 29 January of this year, CAAF granted review of this issue: Whether the military judge erred by admitting evidence at trial that was obtained as a direct result of an illegal search of Appellant's government issued laptop computer. United States v. Rutherford, 66 M.J. 111 (C.A.A.F. 2008). CAAF ordered counsel to brief the issue. Id. Those briefs were apparently sufficient to resolve the case. Yesterday CAAF summarily affirmed the Air Force Court's ruling, which is available here. United States v. Rutherford, __ M.J. ___, No. 07-0795/AF (C.A.A.F. May 27, 2008) (summary disposition).

CAAF SitRep

With a bit more than three months still to go in its truncated term, CAAF has just 10 cases left to decide.

A new published NMCCA opinion

NMCCA issued a published opinion on 22 May, but it didn't show up on NKO until today and still isn't on NMCCA's web site. We've posted a copy here on CAAFlog.com. United States v. Pimienta, __ M.J. ___, No. NMCCA 200600788 (N-M. Ct. Crim. App. May 22, 2008).

LCpl Pimienta was assigned to guard duty at Bagram Airfield, Afghanistan. After standing guard and while cleaning an M9, he unintentionally discharged a round that killed another Marine. LCpl Pimienta was tried in absentia for involuntary manslaughter and making a false official statement.

Over defense objection, the Government presented seven Marines who testified that they had seen LCpl Pimienta handle his M9 in an unsafe manner, to include spinning the weapon on his finger, quick-drawing it, chambering a round in the barracks, and pointing it at other Marines while it was loaded. The testimony established that LCpl Pimienta was counseled at least twice concerning his unsafe handling of weapons.

The defense argued on appeal that this 404(b) evidence was inadmissible because the defense at trial had not advanced a mistake or accident defense. NMCCA disagreed. NMCCA held that the defense raised the defense of mistake or accident through a portion of the defense counsel's opening statement and cross-examination of a witness. Id., slip op. at 5-6. NMCCA also referenced a portion of the defense counsel's closing argument, id., slip op. at 6, though it is unclear how the closing argument could support the military judge's ruling on an evidentiary issue during the government's case-in-chief.

While NMCCA expressed some concern that the 404(b) witnesses were unduly cumulative, it held that any such error was harmless. Id., slip op. at 7.

NMCCA also ruled that even if the defense hadn't put mistake or accident into play, the evidence would have been admissible "to prove culpable negligence, an element of the offense the Government had to prove beyond a reasonable doubt." Id., slip op. at 8.

NMCCA then rejected a factual and legal sufficiency challenge. Id., slip op. at 9-10.

NMCCA then rejected a 403 challenge to the military judge's admitting into evidence, over defense objection, post-mortem and autopsy photographs of the victim's body and skull.

NMCCA also held that the trial counsel didn't commit plain error by "us[ing] the term 'lies' or 'lie' multiple times when referring to the appellant and the sword statement he gave to NCIS." Id., slip op. at 13. NMCCA observed that LCpl Pimienta was charged with making a false official statement and reasoned: "In order to establish a prima facie case on this charge, the trial counsel had to prove that the statement the appellant made to NCIS was in fact false, that is, that the appellant had lied in his statement. One would, therefore, expect the trial counsel to address the falsity of the statement during closing argument." Id., slip op. at 13.

NMCCA also rejected a challenge to the trial counsel's repeated use of "we" during the closing argument. Id., slip op. at 14.

Finally, the court rejected a challenge to the trial counsel's argument that "[w]e have shown -- and there hasn't been any evidence presented to the contrary -- that [LCpl] Pimienta shot [LCpl] White." Id. NMCCA indicated that this was neither a comment on the accused's failure to testify (small wonder he failed to testify if he was tried in absentia) nor an impermissible attempt to shift the burden to produce evidence to the defense. Id., slip op. at 15.

United States v. Gutierrez: Will the third time be a charm?

PFC Juan Gutierrez was court-martialed for assault with intent to commit rape. The victim was an intoxicated Soldier whom PFC Guiterrez had helped into her room. According to the victim's testimony, PFC Gutierrez initially left her room but then reentered and initiated unwanted sexual activity until she pretended to vomit and fled the room. According to him, he kissed her and touched her upper body before she said, "No stop." He then grabbed her and touched her body before stopping.

The members were instructed on not only assault with intent to commit rape, but also the LIOs of indecent assault and assault consummated by a battery. The military judge gave a mistake of fact instruction as to assault with intent to commit rape and indecent assault, but not assault consummated by a battery. The defense counsel expressly stated that the defense didn't request a mistake of fact instruction as to the battery LIO.

The members convicted PFC Gutierrez of only assault consummated by a battery.

When the case was first before ACCA, that court reversed, ruling that the military judge was required to instruct on mistake of fact as to the battery as well. United States v. Gutierrez, 63 M.J. 568 (A. Ct. Crim. APp. 2006). The Judge Advocate General certified the case and CAAF reversed, ruling that the trial defense counsel affirmatively waived that instruction. United States v. Gutierrez, 64 M.J. 374 (C.A.A.F. 2007).

On remand, ACCA again reversed the conviction, this time holding that the trial defense counsel provided ineffective assistance of counsel by affirmatively waiving the instruction. United States v. Gutierrez, No. ARMY 20040596 (A. Ct. Crim. App. Oct. 31, 2007). The Judge Advocate General of the Army again certified the case to CAAF and CAAF today again reversed ACCA. United States v. Gutierrez, __ M.J. ___, No. 08-5004/AR (C.A.A.F. May 27, 2008).

CAAF split 3-2 in reversing. Judge Stucky wrote for the majority, joined by Judges Erdmann and Ryan. Chief Judge Effron and Judge Baker wrote separate dissents.

The majority held that the defense had not carried its burden of demonstrating that any deficiency in the defense counsel's performance prejudiced the accused. The court held that ACCA had erroneously shifted the burden to the government to demonstrate lack of prejudice. CAAF ruled: "Even if the military judge had given a mistake-of-fact instruction as to assault consummated by a battery, it is just as likely that the members would have convicted as it is that they would have acquitted. Thus, Appellee failed to carry his burden to show a reasonable probability that the result would have been different." Gutierrez, slip op. at 8.

CAAF once again returned the case to ACCA for Article 66(c) review. Will the third time be a charm?

May is Chester Challenge Month

Having already reversed Col Chester this month for denying a challenge for cause against him, United States v. Greatting, 66 M.J. 226 (C.A.A.F. 2008), CAAF today reversed Col Chester because he erroneously denied a challenge for cause against a member. United States v. Bragg, __ M.J. ___, No. 07-0382/MC (C.A.A.F. May 27, 2008).

In Bragg, Judge Baker returns to his traditional role as CAAF's primary expositor of the law of members challenges. Judge Baker's opinion of the court was unanimous.

Staff Sergeant Bragg was a recruiter charged with several offenses including, most seriously, raping two high school students. He was tried at Marine Corps Recruit Depot San Diego. One of the members in the case, LtCol W, had previously served as the deputy assistant chief of staff for recruiting. In that position, he received briefings when recruiters were relieved for cause. He knew about SSgt Bragg's case and was able to recall some specific facts about it, "including the nature of the offense, the general identity of the victim, and investigatory measures undertaken by the police." Id., slip op. at 3. While he wasn't sure whether he learned the information from a relief for cause packet or from newspaper reports, he stated that he believed he read the investigation report about SSgt Bragg's alleged offenses. Id. LtCol W's statements suggested that he probably read the relief for cause package and he may have even recommended SSgt Bragg's relief. But he assured the military judge that he could be impartial in the case.

In a stunning violation of the liberal grant mandate (my characterization, not CAAF's), Judge Chester denied a defense challenge for cause against LtCol W, ruling that his "answers and candor . . . and body language" indicated he would be impartial and decide the case based solely on the evidence presented in court. Id., slip op. at 4. The defense exercised its peremptory challenge against LtCol W, but indicated that had the challenge for cause been granted, it would have exercised its challenge against another member. Because the case was tried in 2004, before the ugly 2005 "Wiesen fix" to R.C.M. 912, that was sufficient to preserve the issue and allow CAAF to unanimously reverse.

CAAF reversed the trial judge's ruling on the basis of implied bias. CAAF reasoned: "Implied bias and the liberal grant mandate allow a military judge to uphold the letter and spirit of R.C.M. 912 without at the same time questioning a member's statement that he can sit with an open mind." Bragg, slip op. at 7. CAAF concluded that "no matter how sincere the particular member, we have substantial doubt that it is fair for a member to sit on a panel where that member has likely already reached a judgment as to whether the conduct in question has occurred. Such a conclusion is compounded when it is likely that the same member has reached such a conclusion based on facts contained outside the record." Id., slip op. at 8. CAAF then reminded trial judges, "The liberal grant mandate exists for cases like this." Id.

In light of not only this unanimous slam dunk but also the facts themselves, it is curious that NMCCA didn't address this issue when it affirmed the findings and sentence in an unpublished opinion available here. United States v. Bragg, No. NMCCA 200600228 (N-M. Ct. Crim. App. Feb. 21, 2007).

Three stars for three wise men update

A tip o' the hat to the friend o' CAAFlog who has provided us with some important updates concerning the impending three star status of the Judge Advocates General.

We previously noted DOD OGC's request that the DOJ Office of Legal Counsel opine as to whether presidential action and/or Senate confirmation is necessary to elevate the three incumbent Judge Advocates General to three-star status. Here's a link to that request.

On 14 April 2008, OLC provided the requested advice. Here's a link to that memo. OLC contended that it was beyond Congress's constitutional power to effectively elevate the incumbent Judge Advocates General to a higher grade, thus requiring that either: (1) the current Judge Advocates General serve out their terms at their current grades, to be replaced by successor Judge Advocates General who would be nominated to serve as Judge Advocate General and nominated to three-star grade; (2) the President, if he so chooses, nominate one or more of the current Judge Advocates General to three-star grade; or (3) the President choose to replace one or more of the current Judge Advocates General with successors who would also be nominated to three-star grade. While working on Weiss v. United States, 510 U.S. 163 (1994), under Alan Morrison's tutelage, I learned far more about the Appointments Clause than any reasonable lawyer would want to know. From that vantage point, OLC's advice strikes me as legally correct.

In the wake of OLC's memo to DOD OGC, on 24 April 2008, Deputy Secretary Gordon England sent the service secretaries this memo indicating that Secretary Gates would propose to the President that he nominate each of the current Judge Advocates General to three-star grade. The Deputy Secretary asked the service secretaries to provide appropriate nomination packages.

In other military law star news, each House's DOD authorization bill would elevate the Staff Judge Advocate to the Commandant of the Marine Corps to the grade of major general. But there is a difference between the House and Senate versions. The Senate version, which is § 507 of S. 3001, would exempt this two-star position from the number of major generals that the Marine Corps is statutorily permitted to have; the House version, which is § 551 of H.R. 5658, would require the Marine Corps to take the position out of hide.

The House passed its DOD authorization bill on 22 May. The Senate bill is pending consideration on the Senate floor.

Reports of a preliminary ruling on UCI motion in United States v. Chessani court-martial

LtCol Jeffrey Chessani is being tried for failing to investigate a Marine squad's actions at Haditha that apparently resulted in the deaths of 24 Iraqis. On Friday, Colonel Steven Folsom, the military judge presiding over LtCol Chessani's court-martial, apparently made a preliminary ruling on an unlawful command influence motion in the case. Reports of the ruling, which are often more frustrating than illuminating, can be found here, here, here, and here.

Unfortunately, I haven't been able to find a copy of the actual ruling online.

Based on the reports, it appears that Judge Folsom ruled that the defense had presented sufficient evidence of unlawful command influence for the burden to shift to the government to disprove the existence of unlawful command influence beyond a reasonable doubt. If so, then the normally impressive North County Times would have gotten it wrong. Its lede was: "A military judge has found that top Marine Corps officers were unlawfully influenced by a general's legal adviser when they decided to file criminal charges against a colonel whose troops killed two dozen civilians in the Iraqi city of Haditha in 2005." But from other accounts, it appears that the military judge didn't actually find UCI, but rather found sufficient evidence of UCI to compel the government to disprove it -- a subtle distinction, perhaps, but a very important one.

According to an AP report, LtCol Chessani's defense counsel plan "to ask the judge to dismiss the case at a hearing June 2 at Camp Pendleton."

If anyone has access to a copy of Judge Folsom's actual ruling, please let us know. You can reach us at caaflog@caaflog.com.

First Marine Corps court of inquiry in 50 years doesn't result in court-martial

AP is reporting that the Marine Corps special operations officers whose conduct in Afghanistan was at issue in the first Marine Corps court of inquiry in 50 years will face administrative actions rather than a court-martial.

Cert petition filed in Wilson

Yesterday the Supremes docketed a cert petition seeking review of CAAF's decision rejecting a reasonable and honest mistaken belief about age as a potential defense to a sodomy with a child offense. Wilson v. United States, No. 07-1447.

I haven't been able to get a pdf of the full petition yet, but here's the QP and the Summary of Argument:

Question Presented

Whether the Court of Appeals for the Armed Forces misconstrued Article 125, Uniform Code of Military Justice, 10 U.S.C. § 925, and relevant Manual for Courts-Martial provisions when it held that the defense of mistake of fact does not apply to the age element of sodomy with a child?

Summary of Argument

The defense of mistake of fact as to age applies to sodomy with a child under the age of sixteen because the age of a child is a general intent element of the offense. Normally, every element of an offense has a mental component. Absent an affirmative indication that Congress or the President intended to dispense with mens rea, there is a presumption against strict liability in criminal offenses. Nothing indicates the President intended sodomy with a child to serve as a strict liability offense. As neither intent nor specific knowledge is mentioned, the applicable mens rea of the age element is general intent; therefore, the defense of mistake of fact as to age is available to an accused charged with sodomy with a child under the age of sixteen.

Another military judge recusal refusal reversal

United States v. McIlwain, __ M.J. ___, No. 07-0544/AR (C.A.A.F. May 22, 2008), is the second military judge recusal case that CAAF has released this month. And surprisingly, the only dissenter in that other case -- United States v. Greatting, 66 M.J. 226 (C.A.A.F. 2008) -- wrote for the majority in holding that the military judge erred by failing to recuse herself in McIlwain.

After the military judge raised the subject, the defense moved to disqualify her because she had presided over the courts-martial of two of Specialist McIlwain's co-actors. The military judge denied the request. She stated that her experience trying the companion cases "would suggest to an impartial person looking in that [she] can't be impartial in this case" had it been a judge-alone case. (Interestingly, she seemed to suggest that the impartial observer would fear she would be biased for the defense.) But the military judge declined to recuse herself from a members trial, which this turned out to be.

The majority repeats the familiar rule that presiding over "companion cases does not, without more, mandate recusal." McIlwain, No. 07-0544/AR, slip op. at 6. But "once the military judge performed the analysis required by R.C.M. 902(a) and announced that her participation 'would suggest to an impartial person looking in that I can't be impartial in this case,' such a person would question her impartiality." Id. This conclusion was an application of the rule that "[i]f a judge is disqualified to sit as judge alone, [s]he is also disqualified to sit with members." Id. (quoting United States v. Sherrod, 26 M.J. 30, 33 (C.M.A. 1988)).

The majority then applied the test from Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847 (1988), to determine whether the military judge's failure to recuse herself was prejudicial. Yes, ruled the majority, principally due to the "corrosive impact on public confidence in the military justice system" arising from the military judge's participation. Id., slip op. at 8.

Judge Stucky wrote for a majority consisting of himself, Chief Judge Effron, and Judge Erdmann. Judge Baker and Judge Ryan each wrote a dissent.

Judge Ryan's dissent, joined by Judge Baker, noted that the test for disqualification is objective rather than subjective and maintained that "[o]bjectively, there was no basis for disqualification." Nor did the defense present any evidence suggesting the need for disqualification. Judge Ryan also concluded that if the military judge had erred by failing to recuse herself, that error did not result in prejudice.

In Judge Baker's dissent, he suggested that the majority "effectively creates a per se rule against military judges sitting on companion cases." Judge Baker also expressed his concern that in future cases, judges will not be as candid in addressing possible disqualification issues as the military judge was in this case. Judge Baker then wraps up his dissent with a paragraph that I absolutely love:

That is surely not good for military practice. And it is surely not the intent of the majority, which I know is focused along with the dissents on the integrity of the military justice system.

What a wonderful acknowledgement that even while expressing strong disagreement with the majority's result, he doesn't doubt for a moment the majority's good faith and good intentions. This language is a model for disagreeing without being disagreeable.

In fact, reading that language makes me ashamed to go back into straight jacket mode. But having noted Inabinette's use of a gender-specific pronoun (I know; technically that should be sex-specific, but that phrase carries too much baggage; if we all start writing "gender-specific," then it will become standard usage) to refer to a generic military judge, I've got to comment on the McIlwain majority's use of the female first-person singular personal pronoun to refer to a generic military judge. McIlwain, slip op. at 5. The McIlwain majority opinion then quotes a 2001 CAAF opinion using a male third-person singular personal pronoun, objective case to refer to a generic military judge. Perhaps the former was used because the military judge in the McIlwain case is a woman (though this was not a reference to her), or perhaps it was an attempt to avoid generically referring to judges with a male pronoun, or to balance the male pronoun used in the Quintanilla quotation. Whatever the reason, I hope judicial opinions will move beyond using gender-specific pronouns to refer to judges and other generic human beings, as Garner urges and illustrates in his guides on usage.

Inabinette: Clarifying the standards of review for providence inquiry challenges

Today's CAAF decision in Inabinette is destined to become the most cited of the term. United States v. Inabinette, __ M.J. ___, No. 07-0787/MC (C.A.A.F. May 22, 2008). The case explores the proper standards of review for appellate challenges to providence inquiries -- one of the most common issues raised in military appeals. Briefs and CCA opinions for years to come will feature Inabinette in their "Standard of Review" section.

And while Inabinette was a win for the Government, the standards of review that it adopts seem fairly defense friendly.

The immediate issue in Inabinette is whether Sergeant Inabinette's guilty pleas were rendered improvident by the E&M testimony of a board-certified forensic psychiatrist that at the time of the offenses, Sgt Inabinette "suffered from Bipolar I Disorder with psychotic features." No, ruled CAAF, largely because the military judge identified and resolved the issue.

But much more important than the actual holding were CAAF's obiter dicta. CAAF laid out the following principles for reviewing challenges to providence inquiries.

1. A "military judge's decision to accept a guilty plea is reviewed for an abuse of discretion." Id., slip op. at 4 (quoting United States v. Eberle, 44 M.J. 374, 375 (C.A.A.F. 1996)).

2. "A military judge abuses his discretion if he fails to obtain from the accused an adequate factual basis to support the plea -- an area in which we afford significant deference." Id., slip op. at 5. [Aside: Am I the only person driven crazy by use of the male possessive pronoun and male third-person singular personal pronoun in connection with "[a] military judge"? In Making Your Case, Justice Scalia actually defends use of "he" "as the traditional, generic, unisex reference to a human being" and expresses his belief "that 'he' means, and has always meant, 'he or she' when not referring to a male antecedent." Antonin Scalia & Bryan A. Garner, Making Your Case 119 (2008). I had to be restrained in a straight jacket after reading that.]

3. "[A]ny ruling based on an erroneous view of the law also constitutes an abuse of discretion." Inabinette, No. 07-0787/MC, slip op. at 5.

4. In reviewing a military judge's acceptance of a plea for an abuse of discretion, appellate courts apply a substantial basis test: Does the record as a whole show a substantial basis in law OR fact for questioning the guilty plea? See id., slip op. at 5-6.

5. "Within this general framework, distinct questions may arise for which an appellate court will review a plea using a de novo standard of review, such as in those cases where the providence of a plea raises pure questions of law." Id., slip op. at 6.

CAAF concluded this section of its opinion with this helpful recap: "[W]e review a military judge's decision to accept a guilty plea for an abuse of discretion and questions of law arising from the guilty plea de novo. In doing so, we apply the substantial basis test, looking at whether there is something in the record of trial, with regard to the factual basis or the law, that would raise a substantial question regarding the appellant's guilty plea." Id., slip op. at 7.

Judge Baker wrote for a unanimous court.

JAs of Note News: Former Judge Advocate Took Stance on Interrogation Tactics

The Wash. Post reported today that a small group of DOJ and FBI attorneys raised "sustained objections" to "harsh interrogation tactics" against detainees held at U.S. Naval Station Guantanamo Bay. Some of you may recognize one of the names as a former Judge Advocate. Marion E. "Spike" Bowman (UPDATED: who retired as a Navy Captain) is a long time civil servant and brilliant intelligence community lawyer. I have a particular memory of Mr. Bowman because after my stint in the Navy JAG Corps, Mr. Bowman was the first person to extend a civilian job offer to me. I ultimately turned it down and found my current job, but I was flattered and will never forget Mr. Bowman's career advice. Mr. Bowman is now a Senior Research Fellow at the Center for Technology and National Security Policy, National Defense University

Here is what the Post had to say:

Besides [Bruce C. Swartz, a criminal division deputy in charge of international issues], the others depicted as raising sustained objections are then-FBI assistant general counsel Marion "Spike" Bowman, who documented his concerns in written reports, and Pasquale D'Amuro, then the bureau's assistant director for counterterrorism. . . .

ACCA: Counsel can't comment on witness's invocation of Fifth Amendment rights

ACCA yesterday released a published opinion in United States v. Christopher Matthews, __ M.J. ___, No. ARMY 20030404 (A. Ct. Crim. App. May 21, 2008). Fortunately the last name has one too many "t"s to be our own Judge Mathews the Greatest.

The central issue in Matthews is whether a trial counsel's rebuttal argument could properly comment on a defense witness's 13 invocations of his Fifth Amendment rights while being crossed and whether the military judge (who was the trier of fact) could draw an adverse inference based on those invocations. No, held ACCA.

The government's theory was that then-Staff Sergeant Gibson was involved in SPC Matthews' plan to confront SGT Freeman about a suspected affair with SPC Matthews' wife and that SSG Gibson and another Soldier restrained SGT Freeman from fleeing before SPC Matthews pistol-whipped him.

By the time of SPC Matthews' trial, SSG Gibson had become PVT Gibson. PVT Gibson appeared as a defense witness on the merits. The TC attempted to cross-ex PVT Gibson about unrelated misconduct that went to his credibility. PVT Gibson refused to answer, instead invoking the Fifth 13 times. The TC moved to strike PVT Gibson's testimony, but the military judge denied the request.

During the TC's rebuttal argument, the military judge overruled a defense objection to the TC's commentary of PVT Gibson's invocation of his Fifth Amendment rights. In an ex parte conversation, the military judge told the civilian and military defense counsel that he had considered PVT Gibson's invocation of his Fifth Amendment rights in determining his credibility.

ACCA ruled that the military judge erred by allowing the TC to comment on PVT Gibson's invocation of his Fifth Amendment rights and by taking those invocations into account in assessing PVT Gibson's credibility. The court ruled that Military Rule of Evidence 301(f) prohibits such uses, though under that rule the military judge could have granted the TC's motion to strike PVT Gibson's testimony in whole or in part.

ACCA rejected the military judge's rationale that he could consider the invocations pursuant to Military Rule of Evidence 512(a)(2), which includes an "interests of justice" exception to the general prohibition on commenting on claims of privilege. ACCA reasoned that Rule 512(a)(2) is a general provision governing all privileges while Rule 301(f) deals specifically with the privilege against self-incrimination. ACCA ruled that the specific provision trumps the general one. Matthews, No. ARMY 20030404, slip op. at 7.

But ACCA went on to rule that the erroneous uses of PVT Gibson's invocations were harmless beyond a reasonable doubt and affirmed the findings and sentence, making it unlikely that this issue will receive further review in this case.

Senior Judge Zolper wrote for a unanimous panel.

CAAF dismisses Gitmo detainees' petition for extraordinary relief

On 27 February 2008, counsel for several Guantanamo detainees filed a petition for a writ of mandamus at CAAF, seeking an order directing the United States to treat the detainees as POWs.

CAAF clearly has no jurisdiction to issue the requested writ. As the Supreme Court emphasized in Clinton v. Goldsmith, CAAF is authorized to issue writs only if they are "'in aid of' its strictly circumscribed jurisdiction to review court-martial findings and sentences under 10 U.S.C. § 867." Clinton v. Goldsmith, 526 U.S. 529, 531 (1999). Nevertheless, in a truly surprising move, CAAF issued a show cause order on 13 March 2008. In re Ali, __ M.J. ___, Misc. No. 08-8013/NA (C.A.A.F. Mar. 13, 2008).

Yesterday CAAF dismissed the petition, but not because it concluded it was without jurisdiction. Rather, "In view of the pending proceedings in other federal courts, and without deciding the question of jurisdiction, it is ordered that said petition is hereby dismissed without prejudice." Ali v. United States, __ M.J. ___, Misc. No. 08-8013/NA (C.A.A.F. May 21, 2008) (summary disposition).

Big news day

CAAF issued two opinions today, ACCA posted a published opinion, and CAAF's daily journal update included a noteworthy summary disposition. More details to come.

9th Circuit consults Marcum in ruling on Don't Ask, Don't Tell challenge

We previously looked at state courts' treatment of CAAF precedent. A significant decision that the Ninth Circuit issued today consulted United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004).

Witt v. Department of the Air Force, __ F.3d ___, No. 06-35644 (9th Cir. May 21, 2008), available here, is an appeal of a dismissal of an Air Force Reserve major's suit to enjoin enforcement of 10 U.S.C. § 654's "Don't Ask, Don't Tell" policy.

The principal issue in Witt is what level of scrutiny applies to a substantive due process challenge to Don't Ask, Don't Tell. The United States District Court for the Western District of Washington had applied a rational basis standard. In the course of adopting a more exacting level of scrutiny, the Ninth Circuit favorably cited Marcum. The Ninth Circuit reasoned:

In United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004), the United States Court of Appeals for the Armed Forces considered a challenge to an Air Force sodomy law brought by a serviceman who had been convicted of consensual sodomy with a man of inferior rank within his chain of command. That court concluded that the application of Lawrence [v. Texas, 539 U.S. 558 (2003),] must be addressed "in context and not through a facial challenge." [60 M.J.] at 206. Lawrence, the court concluded, did not identify a fundamental right; however, it required "searching constitutional inquiry." Id. at 205. The court distilled this inquiry into a three-step analysis:

First, was the conduct that the accused was found guilty of committing of a nature to bring it within the liberty interest identified by the Supreme Court? Second, did the conduct encompass any behavior or factors identified by the Supreme Court as outside the analysis in Lawrence? Third, are there additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest?

Id. at 206-07 (citation omitted).

The Court of Appeals for the Armed Forces, in our view, applied a heightened level of scrutiny. By considering whether the policy applied properly to a particular litigant, rather than whether there was a permissible application of the statute, the court necessarily required more than hypothetical justification for the policy—all that is required under rational basis review. The court also required consideration of "additional factors" that might justify the policy, which might be viewed as a corollary to the requirement that a challenged policy serve a "compelling" or "important" government interest under traditional forms of heightened scrutiny.

Witt, No. 06-35644, slip op. at 5858.

The Ninth Circuit adopted a heightened level of scrutiny and then rejected one of its previous opinions holding that Don't Ask, Don't Tell survived heightened scrutiny. In reaching this latter conclusion, the panel rejected the Ninth Circuit's holding in Beller v. Middendorf, 632 F.2d 788, 805-12 (9th Cir. 1980), which refused to perform an as-applied balancing test to a Navy regulation banning gays from the service. The panel revisited Marcum in a footnote:

Beller's conclusion that individualized determination were "impractical" at that time has also since been placed into question by the Court of Appeals for the Armed Forces' decision in Marcum, where the court held that the application of Lawrence must be addressed "in context and not through a facial challenge." 60 M.J. at 206. Although that court's decision does not bind our panel, it is telling that the Marcum court did not find it "impractical" to consider particularized facts in each case. See Middendorf v. Henry, 425 U.S. 25, 43 (1976) (noting that military courts' judgments "are normally entitled to great deference" when "[d]ealing with areas of law peculiar to the military branches.").

Witt, No. 06-35644, slip op. at 5866 n.9.

The panel ultimately remanded the case to the district court for application of the heightened scrutiny. Id., slip op. at 5868.

Given its conflict with previous Ninth Circuit cases, Witt seems like a strong candidate for en banc review and possibly even cert. We may get to see further application of Marcum as this case progresses.

CAAF strikes down urinalysis arising from really strange fact pattern

[Disclaimer: I am one of SrA Miller's counsel.]

Senior Airman Miller was a reservist serving on extended active duty at an Air Force reserve installation. The installation's urinalysis program manager randomly selected SrA Miller to provide a sample. Under the Air Force Instruction governing urinalysis programs, "Unit commanders are responsible for directing that drug tests be conducted." United States v. Miller, __ M.J. ___, No. 07-5004/AF, slip op. at 6 (C.A.A.F. May 20, 2008). The term "unit commander" includes a servicemember's immediate commander and higher-level commanders in the chain of command. Id.

But SrA Miller's immediate commander didn't order him to provide a urine sample. Nor did anyone in his chain of command. Rather, the order came from a reserve major who was in a civilian capacity, with no command authority, when he ordered SrA Miller to provide the sample. Id., slip op. at 3.

The military judge suppressed the evidence that resulted from the urinalysis and the Air Force Court affirmed. The Judge Advocate General of the Air Force then certified the case to CAAF. Splitting 3-2, CAAF affirmed. Judge Stucky wrote for a majority consisting of him, Judge Erdmann, and Judge Ryan. Judge Baker, joined by Chief Judge Effron, dissented.

The majority opinion emphasized that Military Rule of Evidence 313 defines an inspection as an examination "conducted as an incident of command." Mil. R. Evid. 313(b). "This tie, or connection, between the inspection and command authority is important in justifying the reasonableness of what is otherwise a warrantless search." Miller, No. 07-5004/AF, slip op. at 5-6. Again emphasizing that "a valid inspection is conducted as an incident of command," the majority observed that "the Government failed to establish that any commander in [SrA Miller's] chain of command at the installation directed that a test be conducted." Id., slip op. at 6. Providing the Government with a road map for avoiding similar cases in the future, CAAF expressly "recognize[d] that a commander can establish a drug testing program such that a random selection by the computer program equates to a direction to test." Id., slip op. at 7. But the Government produced no evidence that such a policy was in effect at Westover Air Reserve Base. Id. Rather, a reservist acting in a civilian capacity directed SrA Miller to provide a sample. Accordingly, the letter directing SrA Miller to provide a sample was not "a legitimate exercise of command authority." Id. The resulting urinalysis therefore "was not an incident of command and did not comply with M.R.E. 313."

Judge Stucky -- a retired Air Force Reserve colonel -- concluded with what was no doubt an Air Force pun: "Operating an inspection program on 'auto-pilot' without command input, as was done here, neither constitutes a legitimate order to test nor satisfied the requirements of M.R.E. 313." Id.

Miller is unlikely to lead to widespread invalidation of urinalysis results for at least three reasons: (1) the facts were so odd, it would be surprising if there were any other case on all fours; (2) it involved an interpretation of Air Force-specific regulations and would not likely govern urinalyses from any other service; and (3) MAJCOM SJAs will likely change their installation urinalysis program orders to provide the fail-safe that CAAF identified.

Miller continues a trend: it is the fourth of the five 2007 Air Force JAG-certified cases to be decided and it is the fourth in which the Air Force Court was affirmed. Of course, as the 3-2 split demonstrates, unlike United States v. Perez, 66 M.J. 164 (C.A.A.F. 2008) (per curiam), and United States v. Mackie, 66 M.J. 198 (C.A.A.F. 2008) (per curiam), Miller was well-suited for certification. The outcome of United States v. Melson, No. 08-5003/AF, which was orally argued on 12 March, will determine whether the Air Force Court enjoys a clean sweep on certified cases this term. (CAAF has also heard oral argument on a case certified by the Judge Advocate General of the Army: United States v. Gutierrez, No. 08-5004/AR, which was heard on St. Patrick's Day. A case certified by the Judge Advocate General of the Coast Guard on 22 April 2008, United States v. Yanger, No. 08-5006/CG, presumably won't be decided until next term.)

One consequence of the ruling is that Miller won't be the case to seek 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 Court of Criminal Appeals' resolution of an Article 62 appeal. That issue will lie dormant until another term - and until after a possible cert petition in Denedo v. United States, 66 M.J. 114 (C.A.A.F. 2008).

Published Air Force Court decision rejects equal protection challenge to Air Force judges' lack of fixed terms

The Air Force Court yesterday released a published opinion not yet available on its web site. United States v. Paulk, __ M.J. ___, No. ACM 36952 (A.F. Ct. Crim. App. May 20, 2008).

The central issue in Paulk was an equal protection challenge arising from the disparity in judicial terms of office between the Army and Coast Guard on the one hand and the Air Force and Department of the Navy on the other.

Judge Soybel wrote for the majority while Senior Judge Francis concurred separately.

Paulk was an Air Force major convicted of various sex offenses and an attendant false official statement offense. Mercifully, none of the sex offenses involved the word "child."

Both at trial and on appeal, his counsel challenged the lack of fixed terms of office for Air Force judges. The Air Force Court favorably cited the Navy-Marine Corps Court's decision in United States v. Gaines, 61 M.J. 689 (N-M. Ct. Crim. App. 2005), in rejecting the claim.

The majority applied the rational basis test to the service disparity. First, the court assigned the burden of proof to require the appellant to negate any plausible reasonable basis for the service disparity. Paulk, No. ACM 36952, slip op. at 4. The Air Force Court then concluded that "the appellant has provided absolutely no reasoning or facts to counter the assumption that a rational basis exists for the discrepancy he has identified." Id.

The court then proceeded to identify a basis for the service disparity: service-specific personnel assignment needs. The court explained: "It is beyond question that the services have distinct missions, cultures and modes of operation. Each must be free to have an assignment system that meets their particularized needs. The concept of assignment flexibility is as valid a rationale for variations in assignment rules between the services as it is within a particular service and serves as a rational basis to justify the differences in the way each military service formulates its own rules for judicial assignments." Id. (citation omitted).

Senior Judge Francis wrote separately, indicating that he would give the claim even less scrutiny than rational basis review. He framed the proper inquiry as not whether servicemembers from the various services had a right to have their cases heard by judges with similar terms of office, but rather whether they had a right to have their cases heard by independent judges. He then reasoned:

Judicial independence is an all or nothing proposition. You either have it or you don't. If, as the United States Supreme Court has ruled, military judges are already guaranteed judicial independence, adding a new measure designed to secure that same right has no practical effect. It is simply redundant.

Id. at 5 (Francis, S.J., concurring).

He concluded: "[W]hether or not one or more military services direct fixed terms for their own judges is of no consequence. The appellant already has the 'equal protection' he purports to seek." Id.

Stevenson cert petition distributed for 5 June conference

The cert petition in Stevenson v. United States, No. 07-1397, which we previously discussed here and here, and which is posted here, has been distributed for the 5 June conference. So the first test that must be passed before the Kabul Klipper might owe LCDR Eversole one gilded heifer is for a Justice to ask the SG to respond to the cert petition before 5 June.

New CAAF decision: United States v. Miller

I understand that CAAF is having some trouble with its web site, so I am posting this link to CAAF's decision from yesterday in United States v. Miller, __ M.J. ___, No. 07-5004/AF (C.A.A.F. May 20, 2008).

SG waives response to Wallace cert petition

The SG has waived the United States' right to respond to the cert petition in Wallace v. United States, No. 07-1403, which we previously discussed here.

Commentary on court-martial prosecution of civilian contractor

Jurist has a lengthy commentary on the Ali case by Kevin Lanigan, the Director of Human Rights First's Law and Security Program. Here's a link. The piece says that the CA referred the case to a GCM on 11 May.

The April issue of the Army Lawyer is online

Yipping at the heels of the March issue, the April edition of the Army Lawyer is now online here. But the April issue doesn't have nearly as much of interest to military justice practitioners. The issue does include a piece on providence inquiries, but it's really a guide for rookie trial defense counsel. See Colonel John Siemietkowski, USAR, Preparing Your Client for Providency, Army Law., Apr. 2008, at 44. I don't see anything in the issue that is likely to prove helpful to military justice appellate advocates.

The rest of the iceberg

If one examines CAAF's opinions of the court so far this term, one is left with a distinct impression of the term. Yet if one goes on to examine CAAF's summary disposition, that impression changes.

CAAF has issued 50 opinions of the court so far this term. In those 50 cases, the four Courts of Criminal Appeals enjoy a whopping 84% affirmance rate. The Coast Guard Court has a perfect record (4/4). 92% of CAAF's decisions reviewing AFCCA have been affirmances (12-1). 81% of CAAF's decisions reviewing NMCCA have been affirmances (17-3-1). And 75% of CAAF's decisions reviewing ACCA have been affirmances (9-3).

That affirmance rate seems high by historical standards. But then consider this: in 17 additional cases, CAAF has summarily reversed CCA decisions, including 13 reviewing NMCCA decisions. (3 were from the Army and 1 was from the Air Force. None were from the Coast Guard Court, which maintains its perfect record.) Some of these were reversals of trailer cases, but in several instances, CAAF summarily kicked the case back to the CCA to review it again -- the kind of disposition that would likely have been reached only after full briefing and oral argument in previous terms.

So it looks like this might be what is happening: CAAF is summarily reversing more of the low-hanging fruit, which reduces the percentage of reversals in opinions of the court. Let's keep watching to test that hypothesis.

Wow! NMCCA holds application of Mil. R. Evid. 707 unconstitutional

You probably recall United States v. Scheffer, 523 U.S. 303 (1998), the Supreme Court decision that upheld the constitutionality of Military Rule of Evidence 707. In a bold published decision authored by Judge Couch, NMCCA has distinguished Scheffer by finding that the particular application of Rule 707 in this case implicates the Scheffer concurring Justices' view that "some later case might present a more compelling case for introduction of the testimony than this one does." United States v. Wheeler, __ M.J. ___, No. NMCCA 200602348, slip op. at 7 (N-M. Ct. Crim. App. May 15, 2008) (quoting Scheffer, 523 U.S. at 318 (Kennedy, J., concurring)).

Petty Officer Wheeler was charged with engaging in that stereotypical Navy offense: conspiracy to steal money from soda machines aboard USS BELLEAU WOOD -- the classic pop pilfer. (Apparently Sailors on BELLEAU WOOD are quite thirsty; the amount of the alleged larceny was $10,000.) During a 10-hour interrogation by NCIS, Petty Officer Wheeler was polygraphed four times. Wheeler was told that the first three polygraph results were inconclusive and that the fourth showed he was being "deceptive." An NCIS agent then confronted Wheeler and accused him of lying.

At trial, Wheeler testified that the agent "led him to believe that he would be convicted based upon the evidence of the failed polygraph." Id., slip op. at 3. The agent who interrogated him denied telling Wheeler that he could be convicted based on the false polygraph. Wheeler ultimately admitted to "personally receiving between $5,000.00 and $6,000.00 of the stolen money," though at Wheeler's trial, "SH1 Jones testified that he alone was responsible for the theft of the money from the soda machines, and that he did not conspire with" Wheeler. Id., slip op. at 3 n.3.

The defense moved to suppress Wheeler's confession. When that motion was denied, "the defense moved in limine to permit the introduction of evidence related to his polygraph examinations." Id., slip op. at 4. This motion "focused on the circumstances surrounding the polygraph examinations and not on the specific results." Id. The defense expressly argued that the evidence concerning the polygraphs would "show what may have motivated a false confession." Id. "The military judge ruled that the polygraph evidence sought by the appellant was inadmissible under MIL. R. EVID. 707 and United States v. Scheffer, 523 U.S. 303 (1998), and denied the defense motion in limine . . . ." Id., slip op. at 5.

NMCCA reversed, ruling that "the military judge erred in denying the appellant's motion in limine because MIL. R. EVID. 707 is unconstitutional as applied to the narrow circumstances presented in this case." Id., slip op. at 6.

The court observed that in Scheffer, Justices Kennedy, O'Connor, Ginsburg, and Breyer "expressed 'doubt . . . that the rule of per se exclusion is wise,' and observed that 'some later case might present a more compelling case for introduction of the testimony than this one does.'" Id., slip op. at 7 (ellipsis in original) (quoting Scheffer, 523 U.S. at 318 (Kennedy, J., concurring)). NMCCA concluded that this is such a case.

The court observed that "a confession of the accused is strong evidence, and the accused should be afforded ample opportunity to confront it." Id., slip op. at 7 (citing Crane v. Kentucky, 476 U.S. 683, 689-90 (1986)). NMCCA reasoned that "[t]he military judge's application of Rule 707 clearly prevented the appellant from presenting factual matters -- the numerous polygraph examinations and the polygraph examiner's characterizations of the results -- which are extremely relevant in explaining the res gestae of his subsequent confession." Id., slip op. at 8. NMCCA concluded that "the military judge's application of the rule 'infringed upon a weighty interest of the accused': his ability to testify in his own defense." Id. NMCCA also noted that the Air Force Court has "recognized an exception to Rule 707's general exclusion when polygraph evidence is sought to be admitted by the prosecution to rebut an appellant's challenge to 'the voluntariness of his admissions to the investigators.'" Id. at 9 (quoting United States v. Kawai, 63 M.J. 591, 596 (A.F.Ct.Crim.App. 2006)).

Discussing the issue's context in this case, NMCCA explained:

The Government obtained the appellant's confession after employing a series of polygraph examinations as an investigatory tool. Under these circumstances, the appellant's understanding and perception of those polygraph examinations are important factual matters related to his confession. Even though the appellant was unsuccessful in suppressing his confession, he still had the right 'to present relevant evidence with respect to the voluntariness of the statement' during the trial on the merits. MIL. R. EVID. 304(e)(2). See Major Scott E. Reid, Military Rule of Evidence 707 and the Art of Post-Polygraph Interrogation: A Proposed Amendment to the Blanket Exclusionary Rule, 2001 Army Law 1, 5 (2001). Therefore, we hold that the appellant was denied this right when the military judge prohibited him from presenting factual evidence, relevant to his statement's voluntariness and credibility, in the form of his own testimony regarding the polygraph examinations.

Id., slip op. at 9-10.

NMCCA set aside the findings and sentence and authorized a rehearing.

I'd place the odds of a JAG certification about the same as the odds of Big Brown winning tomorrow's Preakness.

SG waives response in Stevenson

The Solicitor General has waived the United States' right to respond to the cert petition in Stevenson v. United States, No. 07-1397. I've posted the complete cert petition here. The issue now becomes whether a Justice will ask the SG to respond before conference.

New Army Lawyer issue published

The March issue of the Army Lawyer is now online. I'm looking forward to reading an article about implied bias challenges by Col Lou Puleo, the head of Code 46. Colonel Louis J. Puleo, Implied Bias: A Suggested Disciplined Methodology, Army Law., Mar. 2008, at 34.

Remand to NMCCA to decide issue not previously raised before that court

On the same day that I noted my perception that NMCCA was enjoying a very high affirmance rate this Term, CAAF's daily journal update included a summary disposition returning a case to the Navy-Marine Corps Court for consideration of an issue not previously raised there. That summary disposition reminded me that I had forgotten about CAAF summarily reversing the Navy-Marine Corps Court on occasion this term. I'll look at the numbers over the weekend to try to get a good handle on what has happened thus far this term.

In United States v. Lewis, __ M.J. ___, No. 08-0159/MC (C.A.A.F. May 13, 2008) (summary disposition), CAAF noted that the defense had raised a legal sufficiency issue before it that had not been considered by the Navy-Marine Corps Court. CAAF concluded that it "is appropriate for the court below to consider this issue initially. It granted review of "[w]hether the evidence is legally insufficient to support the conviction for conspiracy when the government purportedly failed to provide any evidence that the alleged overt acts occurred after the conspiratorial agreement arose." Id. CAAF set aside NMCCA's decision and returned the case to the Navy JAG for remand to the Navy-Marine Corps Court "for consideration of the issue raised for the first time before us." Id.

No prejudice from SJA's alleged failure to forward clemency material to the CA

The issue in United States v. Travis, __ M.J. ___, No. 07-0482/MC (C.A.A.F. May 15, 2008), is whether Sgt Travis was prejudiced by the SJA's alleged failure to forward clemency materials to the CA before he took action in the case.

The record was unclear as to whether the SJA received the defense's clemency matters before or after the CA originally acted. But because the CA's original action had not considered the results of a companion case, the CA took a second action with the benefit of the defense clemency materials. CAAF concluded that this second action eliminated any prejudice that might have arisen from the CA not receiving the defense clemency package before taking the initial action. Id., slip op. at 8-9.

In dissent, Judge Baker maintains the clemency recommendation from Lieutenant General Mattis was unusually weighty. But because Sgt Travis had served his complete term of confinement before the second CA's action, any prospect that the convening authority, Major General Natonski, might have reduced the confinement in response to this weighty clemency recommendation was eliminated. Therefore the second action didn't necessary reflect what the original action would have been.

Another new CAAF opinion

CAAF is pumping them out. United States v. Travis, __ M.J. ___, No. 07-0482/MC (C.A.A.F. May 15, 2008). Judge Erdmann wrote for the majority and Judge Baker dissented. This is yet another opinion affirming a ruling by the Navy-Marine Corps Court. My perception -- without actually crunching the numbers -- is that NMCCA has enjoyed a phenomenal affirmance rate this term. I'll try to look at that issue either later tonight or over the weekend.

Another two CAAF opinions

CAAF released two more opinions today:

United States v. Hart, __ M.J. ___, No. 07-0247/AF (C.A.A.F. May 14, 2008).

United States v. Navrestad, __ M.J. ___, No. 07-0199/AR (C.A.A.F. May 14, 2008).

Both of them were written by Judge Erdmann and in both of them Chief Judge Effron, joined by Judge Stucky, dissented. The former ruled for the government while the latter ruled for the defense. Again, due to computer limitations, I'll let others provide links and synopses.

Stevenson cert petition issue

Yesterday I noted the new military cert petition in Stevenson. Here's the QP:

Whether the exercise of court-martial jurisdiction over one of more than 93,000 disabled military retirees who do not receive military retired pay and have minimal, if any, contacts with the military exceeds Congress's authority under Article I, [section] 8, clause 14 to subject members of the "land and naval Forces" to a military justice system that does not comply with certain constitutional requirements, including the right to trial by jury?

SCOTUS Blog: MilJus Related Cases

Two interesting pieces over on SCOTUSBlog:

1. Commentary on the Judge Allred ruling in the Hamdan case, as covered by former Judge Chris "Don't Call Me Matthews" Mathews on this blog.

2. Report on ruling by Judge Brownback in another Gitmo case on a child soldier issue in the Khadr case. Not our normal fare, but I found the issue riveting. Pleadings and ruling here, via SCOTUSBlog.

Here is a link to the Stevenson case, noted by CAAFlog below. I'll race CAAFlog to get a copy of the cert. petition posted on CAAFlog.com.

2 New . . . Wait CAAFlog Beat me to It

Two new CAAF opinions today. United States v. Gallagher, No. 07-0527, is a relatively mild mannered consent to search case. Judge Ryan's BLUF opinion in Gallagher says it all (there is one sentence in here that contains some of the best use of adjectives by the CAAF this term):

Today we are asked the question whether, when one spouse consents to a search of the entire house, the apparent authority doctrine extends that consent to an androgynous, unmarked, unlocked, briefcase kept in a common area of the home, which could reasonably hold the object of the search. Based on the facts of this case, we hold that it was not objectively unreasonable for the officer to believe the consent to search the home extended to the briefcase, and the apparent authority doctrine applies. Because Appellant’s wife had apparent authority to consent to the search, the military judge did not abuse his discretion in admitting the evidence found in the briefcase during the permissive search or the evidence based on the derivative seizure and subsequent command authorized search of Appellant’s computer.

With that synopsis, it is hard to argue with the unanimous holding. That's not to say that CAAFlog commenter Bill Cassara and the fighting . . . ducks . . . at Code 45 did anything but a stellar job framing the issues to get it this far. I haven't seen Code 46's briefs on the issue, but from the way the opinion came out they did their job, too. And while our MIA contributor Guert's impassioned commentary on this case below stands as some of the best blogging on this site to date, the facts didn't shake out quite like he thought. No men's briefcase, just an unidentified briefcase. Wife wasn't a clerk at Blockbuster, but the manager. The Court even cited Melgar, Guert! Thankfully Guert only predicted the demise of Gallagher's 404(b) holding, lest his perfect prediction streak be broken.

As for United States v. Adams, No. 07-0796, I will have to leave that to the pros. I have to catch some dinner.

Two CAAF opinions

CAAF issued two opinions today:


United States v. Gallagher, __ M.J. ___, No. 07-0527/MC (C.A.A.F. May 13, 2008) (Judge Ryan for a unanimous court), and United States v. Adams, __ M.J. ___, No. 07-0796/AF (C.A.A.F. May 13, 2008) (Chief Judge Effron for the majority with a dissent by Judge Erdmann joined by Judge Ryan).


I'll have to leave it to others to provide synopses and links.

A remand in a long-simmering case

On Pearl Harbor Day 2006, NMCCA affirmed most of the findings and all of the sentence in an unpublished decision in United States v. Mullins, No. NMCCA 200200988 (N-M. Ct. Crim. App. Dec. 7, 2006). Then-Senior Judge Wagner wrote for the court. The case was a combination of both of the twin scourges of the military justice system: child sexual abuse and child pornography.

In the course of NMCCA's opinion, it rejected an argument that a "child sexual abuse expert" gave inadmissible "human lie detector" testimony. NMCCA concluded that the issue had been forfeited. The court also noted that Judge Wities had immediately recognized the problem and provided a limiting instruction without any objection or request for additional instructions from the defense. Finally, NMCCA held that the testimony did not constitute plain error. (The Super Muppet of Appellate Advocacy was one of the appellate defense counsel before NMCCA.)

On 13 February, CAAF granted review of two issues in the case: one asking whether NMCCA "erred in holding that there was nothing impermissible in the military judge allowing the Government to introduce lie detector testimony in violation of Military Rule of Evidence 702," and the other concerning post-trial delay. (The trial ended on 6 April 2001.)

On Friday, CAAF summarily set aside NMCCA's opinion and remanded the case for a new Article 66(c) review "to include" (but apparently not limited to) "consideration of the first granted issue in light of [United States v. Brooks, 64 M.J. 325 (C.A.A.F. 2007)]." United States v. Mullins, __ M.J. ___, No. 07-0401/NA (C.A.A.F. May 9, 2007). Brooks was another human lie detector/child sexual abuse case issued after NMCCA decided Mullins.

New cert petition

The Navy-Marine Corps Appellate Defense Division has filed a cert petition seeking review of CAAF's decision in United States v. Stevenson, 66 M.J. 15 (C.A.A.F. 2008). Stevenson v. United States, No. 07-1397. Here's a link to the docket entry: http://www.supremecourtus.gov/docket/07-1397.htm. Sorry, the computer I'm working on blocks me from creating a hypertext link. This computer also appears to block me from using e-mail, so I'll try to acquire and post the Stevenson QP when I return to the land of the unfiltered computer on Thursday night.

Off the net

I'm off on reserve duty in the morning. I'm not sure what kind of Internet access I'll have until I get back Thursday night. In the meantime, I hope my CAAFlog colleagues keep you informed and entertained. (If so, then they are doing much better than I do when I'm here.)

Cert petition filed in Wallace case

Today my colleague Capt Vicki Belleau filed a cert petition seeking review of CAAF's decision in United States v. Wallace, 66 M.J. 5 (C.A.A.F. 2008).

The petition asks the Supremes to resolve a circuit split as to whether the inevitable discovery exception to the Fourth Amendment exclusionary rule is limited by a requirement that law enforcement agents be actively pursuing valid legal authority to search before conducting an invalid search and seizure. That issue also divided CAAF, with the majority finding invalid consent but rejecting an active pursuit requirement and applying inevitable discovery. In a concurring opinion, Judge Baker rejected inevitable discovery due to the absence of active pursuit, but found valid consent. Judge Ryan didn't reach the inevitable discovery issue because she agreed with Judge Baker's conclusion that there was valid consent.

Here's the Wallace QP:

When law enforcement agents seize evidence based on invalid consent, can the evidence be admitted under the inevitable discovery exception to the Fourth Amendment exclusionary rule on the basis of a subsequently obtained search warrant if the law enforcement agents neither applied for nor actively pursued the warrant before seizing the evidence?

The complete cert petition is available here.

[Disclaimer: I am one of petitioner's counsel.]

New CAAF decision: United States v. Bridges

United States v. Bridges, __ M.J. ___, No. 07-0701/CG (C.A.A.F. May 12, 2008).

Chief Judge Effron for a unanimous court.

CAAF punted on the granted issue, holding that even if a letter concerning Fireman Machinery Technician (I have no idea what rank that is) Bridges' negative attitude and disciplinary infractions in the brig was improperly admitted, "any error in the admission of the brig letter did not substantially influence the adjudged sentence." Id., slip op. at 8.

Gitmo judge disqualifies convening authority's legal adviser

Navy Captain Keith Allred, the military judge presiding at the trial of former Osama bin Laden driver Salim Hamdan, has ruled that the legal adviser to the convening authority overstepped his bounds and may no longer play a part in Hamdan's case.

Judge Allred, apparently relying on testimony from Air Force Colonel Morris "Mo" Davis, the former Guantanamo chief prosecutor, concluded that the convening authority's adviser, Air Force Brigadier General Thomas Hartmann, improperly attempted to influence Hamdan's prosecution. Davis resigned in October 2007, citing what he called interference by Hartmann in the prosecution of Gitmo detainees. Judge Allred wrote that directing the use of "evidence that the chief prosecutor considered tainted and unreliable, or perhaps obtained as a result of torture or coercion, was clearly an effort to influence the professional judgment of the chief prosecutor."

The judge also indicated there was at least the appearance of political motivation in the decision to prosecute certain individuals: “Telling the chief prosecutor (and other prosecutors) that certain types of cases would be tried and that others would not be tried, because of political factors such as whether they would capture the imagination of the American people, be sexy, or involve blood on the hands of the accused, suggests that factors other than those pertaining to the merits of the case were at play.”

Colonel Davis has previously testified that senior Pentagon officials told him just before the 2006 U.S. Congressional elections that there would be "strategic political value" in bringing charges quickly, in light of the upcoming vote. Other sources have suggested that the plea bargain for Australian David Hicks, made without input from Davis or his prosecutors, was struck in an attempt to help the government of conservative then-Prime Minister John Howard, who was at the time facing a difficult and ultimately unsuccessful campaign to remain in office.

UPDATE: The text of Judge Allred's decision can be found here.