Thursday, May 15, 2008

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.
Posted by Dwight Sullivan at 10:00 PM

18 comments:

Anonymous said...

Has Baker become a fact-finder and a closet combat wannabe? He writes that General Mattis "is a member of the Marine Corps' 'warrior elite,'" "a general with combat stature," and a "warrior general." Was the General's "warrior" status part of the record or does Baker just have a warrior complex? This is why CAAF judges should be civilians, real civilians, not former Marine infantry officers. Let's judge cases on the facts, not on a judge's fantasy of what he dreams of a "warrior elite."

Fri May 16, 07:03:00 AM EDT
Anonymous said...

I too was puzzled by that dissent. Does that mean a letter in clemency from say an E-4 would have no bearing or if the SJA forgot to forward it the court could say, "Well that letter is only from a Corporal so we find it is of little weight." Either there is, as other posters have said, a technical violation requiring correction or there is not.

Fri May 16, 07:16:00 AM EDT
Anonymous said...

I too was puzzled by that dissent. Does that mean a letter in clemency from say an E-4 would have no bearing or if the SJA forgot to forward it the court could say, "Well that letter is only from a Corporal so we find it is of little weight." Either there is, as other posters have said, a technical violation requiring correction or there is not.

Fri May 16, 07:16:00 AM EDT
Anonymous said...

I have not seen any clips or posts assessing the new court composition yet (a "Year in Review").

My sense is that CAAF is affirming more, defering more, and walking away from its prior role as a deterrent to bad government acts.

While it is keeping a close eye on NMCCA, for example, it is doing so procedurally by insisting on greater care, but generally defering to its substantive decisions. Perhaps with an SJAR exception, CAAF is now completely abstaining from brig and prison issues, attorney conduct, relieving post-trial delay, or - in a case like this - needlessly negligent government work (the SJA could have forwarded the clemency materials easily...and should have). The focus on prejudice is much tighter this term; jurisdiction is looser.

[I, too, chuckled at 1st Anon's quip. Judge Baker is firing blanks in the dissent. He also violated Scalia and Garner's rule about not underlining (FULL and FAIR)]

Fri May 16, 01:56:00 PM EDT
Anonymous said...

A few observations on the case:

1) The judges appear to be having a major disagreement over rank abbreviations. The majority abbreviates lieutenant general “LTG” and major general “MG.” Judge Baker, in his dissent, counters by abbreviating lieutenant general as “LtG.” It is unclear what authority either the majority or dissent consulted to determine the appropriate abbreviations for ranks in the Marine Corps. According to Appendix A of the Department of the Navy Correspondence Manual, the abbreviations for lieutenant and major general in the Marine Corps are “LtGen” and “MajGen.”

2) It is unclear what legal standard Judge Baker is suggesting in his dissent. He gives great weight to LtGen Mattis’s status as a member of the “warrior elite.” Does this suggest that a clemency recommendation by a general – even a four-star – who had not been designated one of the “warrior elite” would not qualify. Also, what reference would an SJA consult to determine if the author of a clemency recommendation had been designated among the “warrior elite.”

3) The court notes “the SJA need not rush to action in the absence of anticipated clemency material.” But looking back to Moreno the court will presume unreasonable delay when the CA does not act within 120 days of completion of trial. This illustrates one of the problems with Moreno. It is rare that a DC will have much, if anything, additional to submit during clemency that he did not submit at trial. At least not 30 days after trial. Personally, the best clemency packages I submitted were those where a few months were allowed to elapse after trial. This allowed the accused to make restitution, take courses in the brig, and amass some favorable observations from the brig staff. Also, what is the likelihood that one could get a clemency recommendation from a general in 10 days? They tend to be busy.

Just some thoughts.

Fri May 16, 07:50:00 PM EDT
Dwight Sullivan said...

I just reread Judge Baker's Travis dissent and I am perplexed by the derision it has provoked. Judge Baker isn't trying to articulate a rule of general applicability. Rather, he is attempting to establish whether there was or wasn't prejudice in this particular case. That inquiry is necessarily limited to the facts of the particular case. And in making that evaluation, Judge Baker makes what strikes me as a quite astute observation: the second action doesn't really tell us what the first action would have been since it would have been possible for the CA to give confinement relief when he took the first action, but it was no longer possible to do so when he took the second action.

So 0716 Anon, Judge Baker isn't looking at LtGen Mattis's letter to determine whether there was a violation of Travis's R.C.M. 1105 rights; rather, he's looking at it to determine whether Travis was prejudiced if there was such a violation. And in my Marine Corps, OF COURSE a letter from a three-star general carries more weight than a recommendation from an E-4. And 0703 Anon, do you doubt that a recommendation from LtGen Mattis is likely to be particularly weighty because of what he has done in the Corps?

Judge Baker's central point -- that a letter from LtGen Mattis might have convinced MajGen Natonski to let Sgt Travis out of confinement sooner had MajGen Natonski seen the letter while Sgt Travis remained confined -- strikes me as probably correct. But even if you don't agree, it certainly seems reasonable.

If Judge Baker's dissent deserved to be mocked, then apparently my analysis does as well.

Fri May 16, 08:50:00 PM EDT
Anonymous said...

CAAFlog, I agree with your substantive point, and merely "chuckled" at Judge Baker's "warrior elite" reference. I think "mock" is not a fair characterization. Anon's #1 point was salted with a little too much sarcasm for me, but contains a kernel of truth. CAAF is sometimes willing to make "obvious" inferences on behalf of the government (e.g., of course a General's recommendation carries weight) - but then sometimes piously restrains itself to the 4-corners of the record when the rights of the accused are at stake.

Fri May 16, 09:54:00 PM EDT
Dwight Sullivan said...

2154 Anon -- I think "mock" is an apt verb for suggesting a judge is "a closet combat wannabe," attributing to him "a warrior complex" and referring to "a judge's fantasy of what he dreams of a 'warrior elite.'"

And in this case, the inference that Judge Baker draws from the 3-star general's recommendation was in favor of the defense, not the government.

Fri May 16, 10:05:00 PM EDT
Dwight Sullivan said...

And I'll also repeat here something I said when an anonymous commentator unfairly (in my view) attacked one of my posts: if you want to mock a public servant and call him out for -- of all things -- having served as a Marine Corps infantry officer, then have the moral courage to put your name on it.

Fri May 16, 10:09:00 PM EDT
Anonymous said...

Most of us are "public servants," not just the high profile. You are being overly protective of Judge Baker - his continuing references to "warrior" was odd. He could have conveyed the same point without the high-octane language. I guess you are free to ascribe a momentary chuckle as a "mockery," but I hope you do not confuse your knowledge of cases with your insight into other people's hearts and minds.

If a Dutch newspaper publishes a picture of Judge Baker, will you riot?

Sun May 18, 02:11:00 PM EDT
Dwight Sullivan said...

Okay, 1411 Anon, I must admit that the last line in your post made me actually chuckle.

Sun May 18, 02:21:00 PM EDT
Anonymous said...

I'm biased, obviously.

But I think there is a difference between the following two circumstances:

Situtation 1: Passing a homeless person on the street who is obviously starving, and deciding whether you ought to give him a sandwich right then and there.

Situation 2: Several months later, after the homeless person has been placed in a shelter and is no longer hungry, you decide whether he should have been given a sandwich back when he was starving. You now need to decide whether to make up for not previously giving him a sandwich by instead sending him the five dollars the sandwich would have cost you.

I wholly disagree that situations 1and 2 are legally indistinguishable. I wholly disagree that if you decide not to send him the 5 dollars in situation 2, then that means you would not have given him a sandwich in situation 1.

The changed circumstances create a "qualitiative difference" in the consideration of clemency which must be acknowledged.

I especially think this is true if you view this through a non-legal lens, and simply view it the way a commander would.

The SJA was wrong in this case to not forward clemency matters to the CA when they could have been meaningfully acted upon. And as a workable, bright line rule to ensure proper conduct by SJAs, prejudice should be assumed as a result. The alternative is to either assume there is no difference between my two hypothetical circumstances, or, to have appellate courts reading clemency packages to decide whether or not an Appellant would have received clemency if things had been done properly.

Sun May 18, 04:24:00 PM EDT
Anonymous said...

Riot. Silly people, there.

Sun May 18, 04:38:00 PM EDT
Anonymous said...

Babu uses a great analogy which provokes a question about legal writing: Can we use analogies like this in a brief?

Most legal writing is stale and slavishly entangled with case cites. Babu uses a fresh insight that clarifies better than boring cites could. Yet, even though his analogy was crystal clear, I suspect that most lawyers would feel almost a professional obligation to sneer at his simplicity. First, Babu, did you use that analogy in your brief? Second, any posters have general thoughts on such usage?

Could Judge Baker, may peace be upon him, have used such an analogy?

Mon May 19, 11:52:00 AM EDT
Anonymous said...

1. I wrote the Reply brief, and didn't use the analogy.

2. I think analogies work great at oral argument, but in the brief is a different matter. I guess the worry is that the judges reading it would think you were trying to be "cute," and that you lacked the case law to support your position.

But upon reflection, I think in the future I will look for opportunities to tactfully work them in.

Mon May 19, 01:18:00 PM EDT
Anonymous said...

What part of "public" and "servant" don't the "named" bloggers on this site understand? The minute a real "public servant" accepts his or her position (and all the perks that go along with it), they make their bios a matter of public record.

I have often wondered why any criticism of the backgrounds of the CAAF judges (no matter how innocuous) engender so much animosity from the "named" bloggers on this site. Since they have nothing to lose one way or another, perhaps the anonymous bloggers are slightly more objective on this point than the "named" ones? Just a thought.

Mon May 19, 08:32:00 PM EDT
John O'Connor said...

As a "named" commentator who also generally supports the continuation of anonymous posting (and someone who has absolutely nothing to lose in the manner in which I describe CAAF judges or military judges), I think there is a bog, big difference between reasoned criticism and pissy commentary or the assertion of unsupported and irresponsible accusations. I'm all for the former, and all for allowing posters to remain anonymous while doing so (though the pseudonymous posters are better becuase I can at least tell who said what in a long thread). But when one just makes pissy comments about a judge, or accuses them of malfeasance with no support, I think it's sort of chicken sh*t to do that while hiding behind the cloak of anonymity.

As for the issue at hand, I thought the Judge Baker comments were not well taken (and I don't know him so I'm commenting just on what was written), but I've seen worse on this blog, and it is those "worse" comments that I take greater issue with.

Mon May 19, 10:07:00 PM EDT
Anonymous said...

JO'C, you are right.

The first post that started this thread was too mean-spirited for me. In my many years in the military I have come across all kinds of humor. Some humor is agressive and off-putting. And, no offense to any branch, but I think the first poster was a Marine (and a Marine who was "projecting," too). So, although the first comment was not to my taste, I gave the post the benefit of the doubt. Ooohrah. (or is it, Huwah?)

I am the poster who thought that underneath the pissy commentary, the first poster had a point (I was separating the water from the piss). To wit, I thought Judge Baker's "warrior" references were odd. (Wasn't there some similar, but milder criticism of Dolly Sods earlier this term?)

I'm the one who chuckled, but I did not mock. (Isn't this a Bob Marley lyric?)

I actually agree with the substance of Judge Baker's dissent and CAAFlog's defense of it...which I should have made clear.

The reference to the Dutch newspaper and saying, "Judge Baker, peace be upon him," was a good-natured tease to CAAFlog and his defense of Judge Baker.

In their new book, Scalia and Garner warn against attempting humor in oral argument. I guess the caveat should extend to blogs - where one cannot make a facial expression or laugh to offset their cold black-and-white letters.

Mon May 19, 10:40:00 PM EDT

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