Monday, May 05, 2008

A new published Air Force Court opinion

I'm taking a short break from stressing over my oral argument tomorrow to call your attention to a CAAFlog exclusive: a new published Air Force Court opinion. United States v. Harvey, __ M.J. ___, No. ACM 36862 (A.F. Ct. Crim. App. May 5, 2008). Judge Heimann wrote for the court, which consisted of only himself and Chief Judge Wise. The third member of the panel, Judge Brand, was the trial judge and thus did not participate in the decision.

The court almost certainly published this decision to flesh out the law regarding purportedly unconscious acts, which is a relatively unexplored area of the military justice terrain. Major Harvey was accused (and ultimately convicted) of committing an indecent act with a child. One of his defenses was that when he rubbed his fingers on his 12-year-old daughter's vagina with his hand, he was actually asleep and the molestation "was an involuntary act caused by a disorder known as parasomnia." Id., slip op. at 2. The Air Force Court quickly dispatched a factual and legal sufficiency challenge, calling the parasomnia defense "unbelievable." Id., slip op. at 3. But the court spent more time evaluating the military judge's refusal to give the members a defense-requested instruction that "[a] person is not guilty of an offense unless his liability is based on conduct that includes a voluntary act." Id. The Air Force Court ruled: "[U]nconsciousness is but one of the many disorders encompassed by the defense of insanity and only merits instruction if the defense has properly met their burden on raising it. R.C.M. 916(k)(3). They did not meet that burden in this case. Therefore, the instruction was not required or necessary." Id., slip op. at 5.

A separate unlawful command influence issue in the case is eye-popping. The defense raised "for the first time on appeal a claim of unlawful command influence. In support of his claim, the appellant submitted to this Court an affidavit from the commander who preferred the charge of which he was convicted. In the affidavit, the former commander alleges he was forced to prefer the charges by the Staff Judge Advocate and that he was not convinced of the appellant's guilty at the time of the preferral." Id., slip op. at 5-6. Sacré bleu. One doesn't see an affidavit like that every day. But no matter: "While we are well aware of a contrary affidavit from the Staff Judge Advocate, for purposes of this appeal even if we assume that the appellant has sufficiently raised a claim of unlawful command influence, the claim was waived. 'Defects in preferring and forwarding charges are waived if not raised at trial, unless the failure to raise the issue is itself the result of unlawful command influence.' United States v. Richter, 51 M.J. 213, 224 (C.A.A.F. 1999) (citing United States v. Hamilton, 41 M.J> 32, 37 (C.M.A. 1994))." Id., slip op. at 6.

While this seems to be a fair treatment of CAAF's precedent, one wonders whether CAAF might want to relook at Richter and Hamilton. Shortly after deciding Richter, CAAF in Haagenson drew a distinction between UCI affecting "the preferral and forwarding processes of a case," which is subject to forfeiture, and UCI "at the referral, trial, or review stage," which is not. United States v. Haagenson, 52 M.J. 34, 37 n.3 (C.A.A.F. 1999). It doesn't really seem like we are treating UCI as "the mortal enemy of military justice" if we sometimes shoot it on sight, but at other times let it roam around unchecked.


Anonymous said...

In regard to the defense of unconsciousness, this particular result seems right, but the danger is that the principle is overgeneralized.

Child molestation is evil. I don't think that we need to bend the law to punish these predators.

Specifically, I can't agree with the statement that:

"[U]nconsciousness is but one of the many disorders encompassed by the defense of insanity"

WHAT? Unconsciousness is a "disorder"? That's nonsense. Every single person spends almost half their life in an unconscious state.

I don't see how an act done while sleeping necessarily involves a form of insanity.

A few years ago, I had a bad dream and involuntarily kicked my spouse. No kidding. I committed assault and battery on my spouse right there in bed. (Just one kick - not too hard - I swear) Do I really have to defend myself using a form of the INSANITY defense? Now that's insane.

So, IF, a person had a sex dream and rubbed his fingers on a vagina, I could POSSIBLY believe it was involuntary if it was an isolated incident, the act was temporary, and I could figure out under what circumstances the other person was sleeping with the perp!

I am assuming that in this case that the surrounding circumstances truly made this defense unbelievable. I just don't know why we have to use the insanity regime to get there.

Christopher Mathews said...

Interesting affidavit. I wonder which commander was lying: the one who swore that the charges were "true to the best of his/her knowledge and belief," or the one who swore he/she did not believe them to be true?

joonkadanmon said...

Now, I believe justice failed here in two folds, if infact if this defendant comitted this act and for the record I beleive the insanity/unconscious angle is hollow at best. But if for sake of arguement these acts occurred then the victim is being robbed of justice and for the purposes of the law, I dont see how these charges could stick given the affivdavit submitted in this case. It places the military justice system in a bad light here, if the goverment prevails, I mean who do we believe here? defendant claims his innocence and of no doing of the defense the powers that prefer the charges now claim they were pressured to do so at best and had doubts about the veracity of charges, I cant wait for caaf on this one, I predict defense prevails. I can't believe the military justice system affords sanctuary for this defendant.

Anonymous said...

I found it interesting that the third judge on the panel was unable to participate because he was the trial judge. I know only two judges are required to participate in the decision of a case and the third judge is often just a placeholder, but here we had a third judge who could not participate under any circumstances. Something just doesn't seem right about that to me.

John O'Connor said...

Last Anonymous:

Agree wholeheartedly. This isn't the Supreme Court. I'm all for having panels if the court thinks it's more efficient, but I don't see how you wouldn't, on an ad hoc basis, send a judge from another panel over to handle this single case.

Christopher Mathews said...

JO'C and Anon: the AFCCA Chief Judges have, from time to time in the past, reconstituted that court's panels when it appeared that a judge was conflicted.

I'm not privvy to any information about the assignment of judges in this particular case, but depending on the circumstances, there may have been no judge available who would not have also been conflicted. That may seem unlikely, but it's not beyond the realm of recent precedent. By way of example: in one case in which I participated in 2005, there were only three unconflicted judges on the court, and so we comprised the panel for that case. It's not beyond imagination that there might in this instance have been only two, as would have been the case in 2005 had I arrived at the court a week later than I did.

Again, however: I do not have any inside information concerning this case, and don't mean to represent that events played out in the same way as they did in '05.

CAAFlog said...

Anon # 2,

Judge Brand is a woman. The last time I read something that assumed that a judge was a man, I went crazy and wrote something injudicious. I'm calmer now.

Anonymous said...

When it stops being a safe assumption, I'll gladly stop assuming it. We need more women on the bench, particularly in the Navy and Marine Corps.

That said, my sincere apologies to Judge Brand. I certainly meant no disrespect.

John O'Connor said...

The most hard-boiled MJ I saw in the Marine Corps was a woman (well, she was either #1 or #1A).