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.