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):10 U.S.C. § 862 (2000) (emphasis added).
(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.
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--1 U.S.C. § 1.
words importing the singular include and apply to several persons, parties, or things;
words importing the plural include the singular[.]
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.