Murphy

In 1998, CAAF issued its opinion in the appeal of Sergeant Murphy's premeditated murder convictions and death sentence. United States v. Murphy, 50 M.J. 4 (C.A.A.F. 1998). CAAF reversed the death sentence due to IAC and remanded the case to ACCA to decide whether the IAC also affected the findings. Last Friday, about 9-and-a-half years later, ACCA ruled that the IAC didn't affect the findings and remanded the case for a resentencing hearing in which death will be an authorized punishment. United States v. Murphy, __ M.J. ___, No. ARMY 19872873 (A. Ct. Crim. App. June 27, 2008).

The opinion is by the estimable Judge Greg Maggs, a professor at George Washington University Law School who was sitting on ACCA on a long-term activation.

ACCA releases important decision

ACCA has released its opinion in United States v. Murphy. Here's a link. More later.

Recommendations for Improvements to Military Justice System

Professor Philip Alston, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions released a press statement today, which included recommendations for improvements to the military justice system. The first recommendation is for the creation of a central office or registry that would track the status of ongoing cases and permit the public to have access to the information.

The other recommendations are for fundamental structural changes to the UCMJ, including a recommendation that the decision to prosecute service members be made by a new Director of Military Prosecutions. This recommendation is in response to Professor Alston's conclusion that military commanders are not holding subordinates appropriately accountable for misconduct, particularly misconduct resulting in harm to noncombatants occurring during operations.

The press release is available here.

Other daily journal activity

On Monday, CAAF granted the government's motion to enlarge the period of time in which the Judge Advocate General of the Navy may file a certificate for review to challenge NMCCA's ruling in United States v. Wheeler, 66 M.J. 590 (N-M. Ct. Crim. App. 2008). United States v. Wheeler, __ M.J. ___, No. 08-5007/NA (C.A.A.F. June 23, 2008).(Wheeler was the NMCCA case finding Military Rule of Evidence 707 unconstitutional as applied.) But CAAF limited the period of enlargement to this Tuesday and provided that "absent extraordinary circumstances, no further extension of time will be granted in this case." Id. That will give the Judge Advocate General a total of 47 days in which to file a certificate.

We previously discussed the government's motion to enlarge the certification time in Wheeler here. And we discussed NMCCA's decision in the case here.

Another interesting procedural maneuver is JAJG's motion to withdraw its 10-day letter in United States v. Paulk. Paulk was the published Air Force Court decision rejecting an equal protection challenge to military trial and appellate judges' lack of a fixed term of office in the Air Force and Department of the Navy, in contrast to the Army and Coast Guard. See United States v. Paulk, __ M.J. ___, No. ACM 36952 (A.F. Ct. Crim. App. May 20, 2008). We previously discussed the opinion here.

After initially responding to Major Paulk's supplement to his petition for grant of review with a 10-day letter, JAJG apparently reconsidered and decided to make a substantive filing. On Monday, CAAF granted JAJG's motion to withdraw its 10-day letter. United States v. Paulk, __ M.J. ___, No. 08-0581/AF (C.A.A.F. June 23, 2008).

Daily journal update

There was some significant CAAF daily journal activity last week that I didn't have the capacity to cover from the road. So I'm playing catch-up this weekend.

CAAF granted plenary review in two cases, both from the Air Force. In United States v. Miller, CAAF granted review of:

WHETHER APPELLANT'S CONVICTION OF ATTEMPTED INDECENT LIBERTIES WITH A CHILD IS LEGALLY SUFFICIENT WHEN APPELLANT WAS NEVER IN THE PHYSICAL PRESENCE OF THE PURPORTED CHILD, BUT WAS CONVICTED ON THE BASIS OF HIS SENDING HER THROUGH THE INTERNET A CONTEMPORANEOUS VIDEO OF HIS PERFORMING A SOLITARY SEXUAL ACT.

United States v. Miller, __ M.J. ___ No. 08-0307/AF (C.A.A.F. June 24, 2008). AFCCA's decision in the case is at 65 M.J. 845 (A.F. Ct. Crim. App. 2007).

The second granted issue is: "WHETHER THE MILITARY JUDGE ERRED BY ALLOWING EVIDENCE OF LEGAL PORNOGRAPHY AND SEXUAL ACTS WITH HIS WIFE." United States v. Goodin, __ M.J. ___, No. 08-0355/AF (C.A.A.F. June 24, 2008). A literal reading of that issue would mean that the sexual acts were with the military judge's wife. Presumably that would have led the military judge to recuse himself and the actual issue is whether the military judge should have allowed the admission of evidence about the accused's sexual acts with the accused's wife. AFCCA's unpublished decision in the case is available here. United States v. Goodin, No. ACM 36266 (A.F. Ct. Crim. App. Dec. 19, 2007).

Also this week CAAF continued its recent practice of deciding some cases on the basis of the briefs without holding oral argument. On 2 April 2008, CAAF granted review of "WHETHER THE MILITARY JUDGE FAILED TO ESTABLISH THAT APPELLANT TOOK ANY SUBSTANTIAL STEP BEYOND MERE PREPARATION TO CROSS THE CRIMINALITY THRESHOLD OF 'ATTEMPT,' THUS RENDERING THE PLEA OF GUILTY TO CHARGE II, SPECIFICATION 2, IMPROVIDENT." United States v. Rowe, __ M.J. ___, No. 07-0813/NA (C.A.A.F. Apr. 2, 2008). CAAF ordered the parties to file briefs. On 24 June 2008, which would have been quite soon after briefing was complete, CAAF resolved the case: "On further consideration of the granted issue, __ M.J. __ (C.A.A.F. April 2, 2008), and the briefs of the parties, it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed." United States v. Rowe, __ M.J. ___, No. 07-0813/NA (C.A.A.F. June 24, 2008) (summary disposition).

And CAAF granted minor relief concerning the wording of a specification, but no relief as to sentence, on the basis of the petition for grant of review in United States v. Owens, __ M.J. ___, No. 08-0173/AR (C.A.A.F. June 24, 2008) (summary disposition).

CAAF also granted review of a Bartlett trailer, see United States v. Bartlett, No. 07-0636/AR, but ordered counsel not to brief it. United States v. Liriano, __ M.J. ___, No. 08-0225/AR (C.A.A.F. June 25, 2008).

The online daily journal is updated only through Wednesday, 25 June, so it's possible that this week we will learn of still more interesting daily journal developments from last week.

The Supremes dis the military justice system

Wednesday's controversial Supreme Court decision in Kennedy v. Louisiana, No. 07-343, canvassed the law in the United States governing the maximum permissible sentence for rape of a child. Remarkably, both the majority and the dissent overlooked a congressional statute right on point: the National Defense Authorization Act for Fiscal Year 2006.

Justice Kennedy's majority opinion noted that six states had authorized the death penalty for the rape of a child. Kennedy, slip op. at 12. The Court then observed:

By contrast, 44 States have not made child rape a capital offense. As for federal law, Congress in the Federal Death Penalty Act of 1994 expanded the number of federal crimes for which the death penalty is a permissible sentence, including certain nonhomicide offenses; but it did not do the same for child rape or abuse. See 108 Stat. 1972 (codified as amended in scattered sections of 18 U. S. C.). Under 18 U. S. C. §2245, an offender is death eligible only when the sexual abuse or exploitation results in the victim's death.

Id. at 12-13.

The majority later stated: "Thirty-seven jurisdictions—36 States plus the Federal Government—have the death penalty. As mentioned above, only six of those jurisdictions authorize the death penalty for rape of a child." Id. at 15.

Writing for the four dissenters, Justice Alito countered: "The Court notes that Congress has not enacted a law permitting the death penalty for the rape of a child, ante, at 12–13, but due to the territorial limits of the relevant federal statutes, very few rape cases, not to mention child-rape cases, are prosecuted in federal court." Kennedy, dissent slip op. at 13 (Alito, J., dissenting). Justice Alito continued, "Congress' failure to enact a death penalty statute for this tiny set of cases is hardly evidence of Congress' assessment of our society's values." Id.

But just two years ago, Congress did enact a law permitting the death penalty for the rape of a child, which makes the number of authorizing jurisdictions seven (Louisiana, Georgia, Montana, Oklahoma, South Carolina, Texas, and the military), not six.

Section 552(b) of the National Defense Authorization Act for Fiscal Year 2006, 119 Stat. 3136, 3264 (2006), provides that "[u]ntil the President otherwise provides pursuant to" UCMJ article 56, "the punishment which a court-martial may direct for an offense under" the amended UCMJ article 120 "may not exceed the following limits: . . . For an offense under subsection (a) (rape) or subsection (b) (rape of a child), death or such other punishment as a court-martial may direct."

That is a congressional statute expressly authorizing the death penalty for the rape of a child. How come neither side in the Kennedy case even mentioned it?

Many years ago, Professor Schlueter gave a Hodson lecture he called, "Military Justice for the 1990's -- A Legal System Looking for Respect." See 133 Mil. L. Rev. 1 (1991). If the Kennedy Court's apparent unawareness of the military justice system is any guide, 17 years after Professor Schlueter's lecture, military justice remains the Rodney Dangerfield of legal systems.

Stevenson update

The Acting SG has received an extension of his deadline to respond to the Stevenson cert petition until 4 August. Stevenson v. United States, No. 07-1397.

The military cert petition in Rigby v. United States, No. 07-1549, has been distributed for conference on 29 September. It seems likely that Stevenson will be considered at that same conference.

NYT reports CBS will pursue appeal of NMCCA's Wuterich opinion

Here's a link to a New York Times report that CBS will pursue an appeal of NMCCA's ruling reversing a military judge's order quashing a subpoena issued to CBS News for outtakes from an interview with SSgt Wuterich for 60 Minutes.

CAAF issues opinion in Roach

CAAF today issued its opinion in United States v. Roach, __ M.J. ___, No. 07-0870/AF (C.A.A.F. June 26, 2008).

In an opinion written by Chief Judge Effron, a three-judge majority held that the Air Force Court of Criminal Appeals erred by affirming the findings and sentence where the appellate defense counsel had neither read the record of trial nor filed any substantive submission on behalf of the accused and where the court had not taken adequate steps to inform the accused that: (1) it was proceeding without a brief from counsel and (2) he could vindicate his right to counsel in alternate ways, such as by requesting new counsel, hiring a civilian counsel, or briefing the case pro se.

Judges Stucky and Ryan dissented.

[DISCLAIMER: I am one of Senior Airman Roach's counsel.]

Denedo update

Not surprisingly, the Chief Justice has granted the Acting SG's request for an extension until 1 August to file a cert petition in Denedo. United States v. Denedo, No. 07A1027.

On the road

Truman Capote dismissed Jack Kerouac's On the Road with the quip: "That isn't writing; it's typing." Perhaps CAAFlog's slogan should be: "This isn't writing; it's blogging."

In any event, I'll be following Jack Kerouac onto the road the next three days. My computer access is uncertain. So, as always, I invite my CAAFlog colleagues to note anything of interest. If the past couple of weeks are prologue, it could be an exciting 72 hours.

Denedo presents yet another jurisdictional question

Upon reading Mr. MacLean's comments below, it occurred to me to wonder whether the Supremes even have jurisdiction to review CAAF's decision in Denedo v. United States, 66 M.J. 114 (C.A.A.F. 2008). My tentative answer is it doesn't look like they do.

When Congress extended the Supremes' cert jurisdiction over CMA decisions in 1983, it did so in a very limited fashion. 28 U.S.C. § 1259 provides that the Supremes can review CAAF decisions: (1) of affirmed military death sentences, (2) issued in response to a JAG's certified issue, (3) issued after granting a direct review petition, and (4) in other cases "in which the Court of Appeals for the Armed Forces granted relief."

That final subsection is what gave the Supremes jurisdiction to review CAAF's issuance of a writ that led to Clinton v. Goldsmith, 526 U.S. 529 (1999). But in Denedo, has CAAF "granted relief"? Here's Denedo's decretal paragraph:

Accordingly, we remand Appellant's petition to the United States Navy-Marine Corps Court of Criminal Appeals for further proceedings, where the Government will have the opportunity to obtain affidavits from defense counsel and submit such other matter as the court deems pertinent. The Court of Criminal Appeals will then determine whether the merits of Appellant's petition can be resolved on the basis of the written submissions, or whether a factfinding hearing is required under United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967). The court will determine whether Appellant's counsel rendered deficient performance and, if so, whether such deficiency prejudiced Appellant under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). If prejudice is found, the court shall determine whether the requested relief should be granted.

Denedo v. United States, 66 M.J. 114, 128 (C.A.A.F. 2008).

That doesn't look like "relief"; it looks like kicking the can before deciding whether to grant relief. And if no relief, then no Supreme Court jurisdiction.

Chessani UCI ruling

Here's a link to Col Folsom's actual ruling dismissing the charges against LtCol Chessani without prejudice due to unlawful command influence.

Acting SG asks for more time to file cert petition in Denedo

The Acting SG has asked the Chief Justice to extend the government's deadline for filing a cert petition in Denedo to 2 August. United States v. Denedo, No. 07A1027.

After making such requests, though, the SG has often declined to file a cert petition, so this doesn't make a cert petition in Denedo a sure bet.

Cert denied x 2

Today's SCOTUS order list included the denial of two military cert petitions: Wilson v. United States, 07-1447, in which CAAF held that mistake of fact as to age isn't a defense to sodomy with a child, and Tillery v. United States, 07-11102, a pro se IFP case.

Two military cert petitions remain pending. Rigby v. United States, No. 07-1549, is an Army DAD cert petition that looks like a Wilson trailer. The SG waived response on Thursday, but it hasn't yet been distributed for conference. And the biggie: Stevenson v. United States, No. 07-1397, in which the requested response from the SG is due on 3 July.

Civilian contractor's court-martial produces sub-jurisdictional sentence

The No Man called my attention to this press release from Multi-National Force - Iraq announcing the guilty plea and conviction of the civilian contractor tried by court-martial.

The press release observed, "He will continue to be afforded all the post-trial and appellate rights provided to servicemembers." But that might not mean much. Mr. Ali's sentence was confinement for five months. Such a sentence doesn't bring his conviction within the relevant Court of Criminal Appeals' Article 66 jurisdiction. So absent referral of his case to a CCA by the relevant Judge Advocate General, Mr. Ali's first-ever conviction under the recent expansion of Article 2 will never be reviewed by any court.

One more problem with the Wuterich opinion

In addition to its more major problems, NMCCA's opinion in United States v. Wuterich, __ M.J. ___, No. NMCCA 200800183 (N-M. Ct. Crim. App. June 20, 2008), appears to have misidentified one of CBS News' lawyers in the case.

The opinion lists the counsel for "For Non-Party Appellee" (a seeming oxymoron -- Black's Law Dictionary defines "Appellee" as "A party against whom an appeal is taken . . . ") as: "Mr. Lee Levin, Esq., Mr. Seth D. Berlin, Esq., and Ms. Nicole Auerbach, Esq." I assume that first name should be Lee Levine, a founding partner of Levine Sullivan Koch & Schulz, L.L.P., an adjunct professor at the Georgetown University Law Center, and the past chair of the American Bar Association's Forum on Communications Law.

How to Start a Commentariat #$%*storm: Haditha

I removed a comment I made on one of CAAFlog's posts about the Wuterich and Chessani cases because I was worried about politicizing CAAFlog. But, on second thought, as a minority shareholder in CAAFlog, I am going to re-post the comment--with some additional food for thought--as a post.

I find this whole Haditha issue an interesting play on the politics of America. The primary source of my fascination is the reaction of self professed "law and order" advocates to the courts-martial of Marines involved in the killings that occurred in Haditha, Iraq.

In my experience, a lot of law and order advocates believe that the justice system is the place to determine guilt or innocence. While I consider myself a law and order person, it disturbs me that there are people that call themselves advocates of law and order yet lambaste the prosecution of what, in initial investigations/reports, looked like a potential war crime and cover up in Haditha. These same critics then go on to blast people like Rep. Murtha for calling for the accused Marines to be prosecuted. While I agree that Rep. Murtha went way over the top on the rhetoric, and think he should be rightfully criticized for his over the top rhetoric, I don't disagree with his underlying premise of prosecuting (not pre-judging) the suspects in the case based on what initial investigations showed were potentially criminal actions. If the facts were just slightly different, the law and order types would be calling for the heads of the suspects based on the same facts. We would see L&O advocates saying, well if these Marines really are innocent, the justice system will work its course.

Amazingly, that is exactly what is happening with the Haditha cases, though much to the chagrin of the international audience. Once the Wuterich trial is resolved, and I guess the final chapter in the Chessani one as well, we will know exactly what the justice system has said on the whole Haditha incident. Do we know all the facts? No, of course not. Until then, I think the information I have seen includes enough facts to let the system run its course and validates commanders' decisions to refer charges. I grant the critics/cynics/and everyone else that will post a comment, that I don't know all the facts, but neither do the commanders. They are relying on professionals and professional investigators, just like they do in every other case. Those same investigators don't suddenly now have an agenda just because someone doesn't like the kind of crime they are investigating. Maybe I am nutty, but I thought this process was what being a law and order person and a fan of the military justice system meant.

2008: The Year of Jurisdiction

We're not quite halfway through 2008 yet, but it is already apparent that for military justice purposes, 2008 is the Year of Jurisdiction.

There have already been six significant published military justice system appellate decisions dealing with questions of court-martial jurisdiction, CCA jurisdiction, and CAAF jurisdiction. Plus an important Supreme Court cert petition raising a jurisdictional challenge to a court-martial remains pending -- with an ultimate grant or denial of cert likely to come at the end of September.

Here's the most interesting thing: in all six significant published military justice system appellate decisions addressing jurisdictional issues, the outcome construed the relevant court's jurisdiction broadly. This may be just coincidence, it may reflect a jurisprudential philosophy, or it may be the product of a simple human trait to want to retain the option of playing.

In United States v. Hart, 66 M.J. 273 (C.A.A.F. 2008), CAAF ruled 3-2 (Chief Judge Effron and Judge Baker dissenting) that even though the Air Force had delivered a DD214 to A1C Hart, the Air Force retained court-martial jurisdiction over him because he had not yet received a substantial portion of his final pay nor was it ready to be delivered to him.

In United States v. Adams, 66 M.J. 255 (C.A.A.F. 2008), CAAF ruled 3-2 (Judges Erdmann and Ryan dissenting) that mistakes in the court-martial convening order didn't deprive the court-martial of jurisdiction.

Probably most famously and controversially, in Denedo v. United States, 66 M.J. 114 (C.A.A.F. 2008), CAAF ruled 3-2 (Judges Stucky and Ryan dissenting) that CAAF retained jurisdiction to issue a writ of error coram nobis eight years after appellate review of a court-martial was complete.

In United States v. Lopez de Victoria, 66 M.J. 114 (C.A.A.F. 2008), CAAF ruled 3-2 (Judges Ryan and Erdmann dissenting) that CAAF had jurisdiction to review CCAs' decisions on Article 62 appeals.

In United States v. Dossey, 66 M.J. 619 (N-M. Ct. Crim. App. 2008), an NMCCA panel ruled 2-1 that it had jurisdiction to hear an Article 62 appeal of a mistrial declaration -- after the same panel had previously ruled 3-0 that it didn't.

In United States v. Wuterich, __ M.J. ___, No. NMCCA 200800183 (N-M. Ct. Crim. App. June 20, 2008), an NMCCA panel ruled 3-0 that NMCCA had jurisdiction to hear an Article 62 appeal of a motion to quash a subpoena issued to CBS News.

And in the pending cert petition in Stevenson v. United States, No. 07-1397, the issue is whether a court-martial has jurisdiction over a disabled military retiree who doesn't receive military retired pay.

Doctrine of interpanel accord

Even before NMCCA posted its Wuterich opinion on NKO yesterday, my treasured colleague Tim Cox sent me a link to a recent article about intra-circuit splits from the Federal Court Law Review. Michael Duvall, Resolving Intra-Circuit Splits in the Federal Courts of Appeal, 2008 Fed. Cts. L. Rev. 1 (April 2008).

Mr. Duvall writes: "Three-judge panels are not separate courts; they speak on behalf of the circuit. Therefore, a decision issued by a panel is entitled to deference from later panels under the doctrine of stare decisis." Id. at 1. He then explains the federal circuits' universal adherence to the law of the circuit doctrine and its rationale: "[E]very circuit court has prescribed the prudential rule that a later panel may not overrule a decision issued by a prior panel; only the en banc court or the Supreme Court may take that step. Later panels steadfastly adhere to this prior panel precedent rule by frequently citing their disagreement with a previous panel's decision while simultaneously following it as the law of the circuit." Id. at 1-2 (internal footnote omitted).

A practice followed by every federal circuit is probably one worth emulating. CAAF has thus far declined to rule on whether the CCAs must follow the doctrine of interpanel accord. See United States v. Townsend, 49 M.J. 175, 177 (C.A.A.F. 1998). But interestingly, CAAF's rules suggest that a CCA's failure to follow the doctrine of interpanel accord may make a case appropriate for CAAF to review. CAAF Rule 21(b)(5) provides that a supplement to a petition for grant of review shall contain an "argument showing why there is good cause to grant the petition," and "[w]here applicable, the supplement to the petition shall also indicate whether the court below has . . . decided a question of law in a way in conflict with applicable decisions of . . . another panel of the same Court of Criminal Appeals." NMCCA has certainly done so in both United States v. Dossey, 66 M.J. 619 (N-M. Ct. Crim. App. 2008) (Dossey II), and United States v. Wuterich, __ M.J. ___, No. NMCCA 200800183 (N-M. Ct. Crim. App. June 20, 2008).

But NMCCA can (and should) now follow the doctrine on interpanel accord by reconsidering Dossey II and Wuterich en banc to decide whether Article 62 should be construed according to its published precedent in United States v. Pearson, 33 M.J. 777 (N.M.C.M.R. 1991), United States v. Flores-Galarza, 40 M.J. 900 (N.M.C.M.R. 1994), and United States v. Santiago, 56 M.J. 610, (N-M. Ct. Crim. App. 2001), or instead according to the almost opposite approach adopted in Dossey II and Wuterich.

Compare Wuterich with Chessani

Here's one more quick thought about Wuterich before I run off to my daughter's swim meet. (I'll have at least one more post about Wuterich sometime after I get back.) In United States v. Chessani, No. NMCCA 200800299 (N-M. Ct. Crim. App. June 10, 2008), NMCCA held that discovery disputes weren't the appropriate subject of interlocutory challenges by the defense. Ten days later, in United States v. Wuterich, __ M.J. ___, No. NMCCA 200800183 (N-M. Ct. Crim. App. June 20, 2008) -- coincidentally another case arising from the Haditha incident -- NMCCA held that the government could use an interlocutory appeal to challenge the military judge's resolution of a discovery dispute.

NMCCA's Wuterich opinion (Revised)

NMCCA's Wuterich opinion is a remarkably -- and, I believe, erroneously -- aggressive opinion.

SSgt Wuterich is the accused in the case. The military judge made a ruling suppressing a subpoena issued to CBS News. The government appealed to NMCCA, designating SSgt Wuterich as the appellee in the case. SSgt Wuterich moved to dismiss for lack of jurisdiction and opposed the reversal of the military judge's ruling. NMCCA refused to consider SSgt Wuterich's motion to dismiss or his position on the merits, ruling that he had no standing. NMCCA did consider a motion to dismiss filed by the non-party CBS News and considered CBS News's position on the merits. But, according to NMCCA, this was an appeal with but one party -- the United States.

NMCCA's position that SSgt Wuterich had no standing to move to dismiss was obviously wrong. This was an appeal in his court-martial case which had the AUTOMATIC effect of delaying the trial. See R.C.M. 908(b)(4). That automatic stay of proceedings directly affected SSgt Wuterich and the litigation of his court-martial case. If NMCCA had no jurisdiction to hear the appeal, he had a right to point that out and challenge NMCCA's jurisdiction to proceed.

R.C.M. 908(c) provides that "[t]he parties shall be represented before appellate courts in proceedings under this rule as provided in R.C.M. 1202." SSgt Wuterich was a party to the appeal, and was expressly recognized as such by the United States, which designated him as the appellee. And NMCCA itself styles its decision as United States of America v. Frank D. Wuterich, Staff Sergeant (E-6), U.S. Marine Corps. Why is SSgt Wuterich's name in the caption if he isn't a party to the case? Interestingly, NMCCA's own rule governing Article 62 appeals provides: "The appeal shall be docketed under the same title given to the action in the court-martial with the accused and the United States denominated as the sole parties therein." N-M. Ct. Crim. App. R. 4-6.c. Nevertheless, NMCCA pointedly signals that it refuses to even consider SSgt Wuterich's submissions to the court. NMCCA writes: "We have carefully considered the record of the proceedings, the Government’s brief on appeal, and non-party CBS’s reply brief." Id., slip op. at 2. Gee, what's conspicuously absent from that list?

But let's assume for the moment that SSgt Wuterich wasn't a party. If not, how did NMCCA have jurisdiction? This would no longer be an appeal in the case of United States v. Wutercih. Rather, this would essentially have been litigation in the case of United States v. CBS News. How does the UCMJ provide jurisdiction to a CCA to rule on a dispute between the United States and a private corporation that is not now, and has never been, a member of the U.S. military?

Beyond that, NMCCA's ruling is a reprise of its recent Article 62 jurisdictional overreach in United States v. Dossey, 66 M.J. 619 (N-M. Ct. Crim. App. 2008), which we discussed here. For more than 15 years, published NMCCA case law held that Article 62 was to be construed strictly and narrowly. See, e.g., United States v. Pearson, 33 M.J. 777 (N.M.C.M.R. 1991); United States v. Flores-Galarza, 40 M.J. 900 (N.M.C.M.R. 1994); United States v. Santiago, 56 M.J. 610 (N-M. Ct. Crim. App. 2001). But then NMCCA panels turned around in Dossey and now Wuterich and construed Article 62 broadly. Most appellate courts that sit in panels apply the law of the circuit doctrine (also know by various other names including the doctrine of interpanel accord) to hold that one panel of a court can't overturn the published precedent of the court; only the court sitting en banc may do so. Dossey and Wuterich both overturned more than a decade's worth of established NMCCA precedent. Whether one thinks the Dossey and Wuterich panels had the better reading of the law, that way lies chaos. Panels must exercise self-restraint by following their own court's published precedent. If the judges on the Wuterich panel thought that cases like Pearson, Flores-Galaraz, and Santiago improperly construed Article 62, then their correct response should have been to propose en banc consideration of Wuterich. If not (or if the court declined to hear the case en banc), under the doctrine of interpanel accord, the court's earlier case law remains binding precedent and the later outlier, like Dossey, is not to be followed.

But forget about strict construction of Article 62 -- under a plain meaning analysis of its terms, the military judge's ruling in this case wasn't appealable. Article 62 provides, in pertinent part, that the government may appeal "[a]n order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding." 10 U.S.C. § 862 (2000). Judge Meeks didn't exclude anything. He has not prevented the United States government from presenting any evidence to the court-martial. If the United States can reach an agreement with CBS to obtain the outtakes -- or if the United States obtains them some other way -- they may very well be admissible. And that is because Judge Meeks didn't "exclude" such evidence. If Congress meant to make discovery disputes subject to an Article 62 appeal, presumably Congress would have chosen a much more direct way of saying so. As NMCCA suggests, some Article III courts may have construed similar language to allow the government to appeal discovery disputes. But some Article III courts' aggressive interpretation of a different statute doesn't justify NMCCA's stretching of Article 62's language beyond its plain meaning.

Wuterich is an aggressive and disturbing ruling. CAAF should certainly grant review to determine whether a CCA can choose to simply ignore the accused in ruling on an Article 62 appeal and, if so, whether a CCA has any jurisdiction to consider a dispute that doesn't involve the accused.

It's ironic that it will take an exercise of CAAF's jurisdiction that some of us think exceeds its statutory basis, see United States v. Lopez de Victoria, 66 M.J. 67 (C.A.A.F. 2008), to rein in NMCCA from exceeding its Article 62 jurisdiction.

Breaking Haditha litigation news

Today in a published decision, the Navy-Marine Corps Court of Criminal Appeals reversed the trial judge's ruling quashing a subpoena issued to CBS News. United States v. Wuterich, __ M.J. ___, No. NMCCA 200800183 (N-M. Ct. Crim. App. June 20, 2008). Here's a link to the opinion.

CAAF grants review of virtual child pornography issue

CAAF has granted review of this issue:

WHETHER THE EVIDENCE ON THE ELEMENT OF SERVICE-DISCREDITING CONDUCT WAS LEGALLY SUFFICIENT WHEN: (1) THE SEXUALLY EXPLICIT CONTENT AT ISSUE INVOLVED VIRTUAL MINORS; (2) THE IMAGES OF VIRTUAL MINORS WERE VIEWED ON APPELLANT'S PRIVATELY-OWNED COMPUTER, AND (3) APPELLANT'S ACTIVITY WAS KNOWN ONLY TO LAW ENFORCEMENT PERSONNEL INVOLVED IN THE INVESTIGATION. SEE U.S. v. MASON, 60 M.J. 15 (2004), AND U.S. v. O'CONNOR, 58 M.J. 450 (2003).

United States v. Brown, __ M.J. ___, No. 08-0260/AF (C.A.A.F. June 17, 2008). AFFCA's decision in the case is here. United States v. Brown, No. ACM 36695 (A.F. Ct. Crim. App. Nov. 16, 2007) (per curiam). The granted issue makes it sound like the case is about virtual images -- something one wouldn't know from reading the AFCCA decision. The precide nature of the images is a factual question that could have a tremendous effect on the case's legal question.

Government files notice of appeal in Chessani

AP is reporting that the government has filed a notice of appeal in Chessani. But that doesn't necessarily mean the government will actually pursue an Article 62 appeal. Under JAGINST 5810.2A, Military Justice Regulations at encl. 1 (17 Sep 1993), once the notice of appeal is filed and the record is forwarded to Code 46, "The Director, Appellate Government Division, as the designated representative of the Government under R.C.M. 908, shall decide whether the appeal shall be filed." So Col Puleo will decide whether to challenge Col Folsom's ruling dismissing the charges without prejudice due to unlawful command influence.

CAAF grants review to examine an ACCA harmless error holding

Clearly there's something about United States v. Crudup that I just don't get. I previously expressed my bewilderment that ACCA's opinion in the case was published. See United States v. Crudup, 65 M.J. 907 (A. Ct. Crim. App. 2008). Now CAAF has granted review of the case, automatically making it one of the 65-or-so most important military justice cases of the year. Here's the issue:

WHETHER, AFTER FINDING A PROPER SIXTH AMENDMENT CONFRONTATION CLAUSE VIOLATION IN THE ADMISSION OF P. C.'S STATEMENTS, THE ARMY COURT ERRED WHEN IT HELD THE ERROR WAS NONETHELESS HARMLESS.

United States v. Crudup, __ M.J. ___, No. 08-0392/AR (C.A.A.F. June 16, 2008).

Someone please educate me and tell me what I'm missing.

New Military Law Review

A new issue of the Military Law Review is available here. The lead article is a 78-page piece (not counting 12 pages of appendices) advocating elimination of UCMJ art. 71(a), which provides, "If the sentence of the court-martial extends to death, that part of the sentence providing for death may not be executed until approved by the President." MAJ Joshua M. Toman, Time to Kill: Euthanizing the Requirement for Presidential Approval of Military Death Sentences to Restore Finality of Legal Review, 195 Mil. L. Rev. 1 (2008). Or, as the article puts it, "It is time for a mercy killing of Article 71(a) because it has fallen into desuetude as a result of its disjointed location in the judicial process." Id. at 8.

The issue also includes Brigadier General Patrick Finnegan's Thirty-Sixth Kenneth J. Hodson Lecture on Criminal Law. General Finnegan is the Dean of West Point's Academic Board.

Incredibly, the article discusses a bit of military justice tomfoolery that we previously noted on this blog:

After the [1984 Manual for Courts-Martial] was written, and about to go to press, the people responsible for the re-write realized that they had neglected to include an index for the Manual. After considering what to do, they said, "Ah ha, we have that criminal law faculty down at the JAG School in Charlottesville, let's task them to compile the index." One of my additional duties in the department was publications officer, so I was given the lead in this unenviable task. We quickly realized that a committee of nine -— the entire criminal law faculty -— was not workable for this project. So, one other officer and I locked ourselves into one of the practice courtrooms for two weeks and did nothing but compile an index for the Manual. It was truly mind-numbing work. Near the end of that two weeks, in our near-delirium, we decided that, if we had to do this, we were going to put our own personal stamp on the index. So we created an entry for "aircraft carrier" that said "see boat." When you went to "boat," the entry said "see vessel," and when you looked up "vessel," it completed the circle by saying "see aircraft carrier." Now you may know that the Navy is particular about calling those big gray things that float on the water "ships" and not "boats" so we were particularly proud of this entry. And it just got better because the criminal law faculty was later tasked to go around the country to brief joint audiences about the Military Justice Act of 1983 and the 1984 Manual. We would always make sure to use a case or hypothetical in these classes that included an aircraft carrier and of course referred to it as a "boat." Invariably a naval officer in the class would raise his or her hand and say, "Excuse me, but aircraft carriers are ships, not boats." At which point, we would point out the entry in the index and say that, apparently according to President Reagan’s executive order, they were in fact boats.

Most of the evidence of this sophomoric Army-Navy prank has since been removed from the Manual, though page 7 of the 2008 MCM's index still includes both "Boat. See Ship.", and "Boat. See Vessel."

Another military cert petition docketed at Supremes

The Supremes have docketed Army DAD's cert petition in Rigby v. United States, No. 07-1549. At CAAF, Rigby was a summary disposition Wilson trailer. United States v. Rigby, __ M.J. ___, No. 08-0029/AR (C.A.A.F. Mar. 19, 2008) (summary disposition); see also United States v. Wilson, 66 M.J. 39 (C.A.A.F. 2008). The cert petition in Wilson, No. 07-1447, is scheduled to go to conference this Thursday.

LtCol Chessani Court-Martial Dismissed for UCI

From the Washington Post, charges against Marine LtCol Jeffrey Chessani related to the investigation of Iraqi civilian killings in Haditha were dismissed without prejudice by military judge Col. Steven Folsom. Story here.

CAAF specifies jurisdictional issue

This is now officially the Year of Jurisdiction. Today's daily journal update included a specified issue asking whether Article 67(b)'s 60-day deadline for filing a petition for grant of review is jurisdictional. United States v. Rodriguez, __ M.J. ___, No. 07-0900/MC (C.A.A.F. June 12, 2008). CAAF also specified a second, substantive issue it presumably wouldn't rule on if it determines that the 60-day deadline is jurisdictional and that the petition in this case was filed after that deadline ran. Here are the two specified issues:

WHETHER THE MILITARY JUDGE IMPROPERLY SHIFTED THE BURDEN OF PROOF TO APPELLANT IN ASKING APPELLANT TO EXPLAIN THE VICTIM'S MOTIVES IN ACCUSING HIM OF SEXUAL ABUSE.

WHETHER THIS COURT HAS JURISDICTION TO CONSIDER APPELLANT'S UNTIMELY PETITION IN LIGHT OF BOWLES v. RUSSELL, 127 S.Ct. 2360 (2007).

(They would seem to belong in the reverse order since jurisdiction is the threshold issue, but I guess that doesn't actually matter.)

NMCCA issued its unpublished decision in the case on 17 July 2007. United States v. Rodriguez, No. NMCCA 9900997 (N-M. Ct. Crim. App. July 17, 2007). The petition for grant of review was filed on 28 September 2007. On 16 November 2007, CAAF granted the appellant's motion to file the petition out of time. United States v. Rodriguez, 65 M.J. 443 (C.A.A.F. 2007).

Supremes deny cert in Wallace

Today's order list included the denial of the Air Force cert petition in Wallace v. United States, No. 07-1403.

New CAAF opinion issued

United States v. Ober, __ M.J. ___, No. 07-0722/AR (C.A.A.F. June 16, 2008). Chief Judge Effron wrote for a four-judge majority affirming ACCA. Judge Erdmann dissented.

I don't have time to analyze it tonight, nor will I tomorrow night (and probably not Wednesday night either). So please have at it in the comments.

Senior Judge Sullivan has a new book on the stands

I was in the Annapolis Barnes & Noble today, where Senior Judge Eugene Sullivan's new novel, The Report to the Judiciary, was displayed prominently. Here's a link to its page on B&N's web site, which includes a not-so-flattering review by Publishers Weekly.

CAAF orders additional factfinding in defense counsel conflict case

CAAF split 3-2 today, ruling that a possible conflict of interest by a trial defense counsel's overlapping assignments as a DC and a TC required additional factfinding. United States v. Lee, __ M.J. ___, No. 07-0725/MC (C.A.A.F. June 13, 2008). Judge Baker wrote for the majority joined by Chief Judge Effron and Judge Erdmann. Judge Ryan wrote for the dissent joined by Judge Stucky.

While Capt Lee knew that his TDC was prosecuting some "minor offenses" as a TC while he was finishing up his assignment in defense, Capt Lee stated that only after he was tried and convicted did he learn "that his detailed counsel had actually been working as a prosecutor on another serious case while simultaneously representing him. Moreover, in this other case, his detailed counsel was working for the same trial counsel prosecuting his case." Id., slip op. at 3. Capt Lee was simultaneously represented by a retained civilian counsel.

The majority observed that "case law varies on whether the simultaneous representation of the United States and a defendant results in per se prejudice or whether the defendant must at least show that the conflict adversely effected his counsel's performance." Id., slip op. at 6.

It doesn't appear that CAAF takes either side in that legal dispute. Instead, the court concluded that "it is necessary for us to remand this case for further findings and conclusions of law." Id., slip op. at 8. In an appendix, CAAF set out nine factual issues that should be resolved at a DuBay hearing. See id., slip op. at 10.

The dissent cast the case as an inquiry into whether "an actual conflict of interest adversely affected [Capt Lee's] lawyer's performance." Dissent at 1 (quoting Cuyler v. Sullivan, 446 U.S. 335, 350 (1980)). The dissent concluded that a remand for further inquiry concerning the military defense counsel's potential conflict is unnecessary because "Appellant fails to show, or even allege, prejudice or deficient performance by either the potentially conflicted detailed counsel or his privately retained civilian counsel." Dissent at 1-2. The dissent also relied on the Supreme Court's opinion in Mickens v. Taylor, 535 U.S. 162 (2002), for the proposition that an actual conflict of interest occurs only where a conflict "affect[s] counsel's performance" rather than simply suggesting a "theoretical division of loyalties." Dissent at 5-6. The dissent concluded, "Where, as here, Appellant has not alleged any deficiencies in his detailed counsel's performance, it is unnecessary to resolve the question whether defense counsel actively represented conflicting interests because Appellant cannot establish prejudice under Cuyler." Id. at 6.

NMCCA denies petition for extraordinary relief in Chessani case

NMCCA issued on unpublished opinion on Tuesday denying a petition for extraordinary relief filed by LtCol Chessani's counsel in his court-martial arising from the aftermath of the Haditha incident. United States v. Chessani, No. NMCCA 200800299 (N-M. Ct. Crim. App. June 10, 2008). The opinion appeared on NKO today, but isn't yet on NMCCA's own web site.

The petition for extraordinary relief grew out of a discovery dispute. In a unanimous opinion written by Judge Stolasz and joined by Senior Judges White and Vincent, NMCCA first ruled that the discovery issue was not appropriate for extraordinary relief. The defense advanced an argument near and dear to my heart, arguing that if LtCol Chessani were to be convicted but receive a sentence that didn't include either a dismissal or a year or more of confinement, his case likely wouldn't be eligible for appellate review in any court. NMCCA rejected that argument, maintaining that Article 69 review within the Office of the Judge Advocate General is good enough.

Someone looking for a topic to write on at TJAGLCS or elsewhere please, please, please write an article examining the success rate of Article 69 appeals within each of the services. That could provide important information with which to assess NMCCA's holding that Article 69 review is good enough.

NMCCA went on to opine that even if the issue were appropriate for extraordinary relief, it would uphold the military judge's ruling.

60 down, 5 to go

Today's Lee opinion was the 60th decision CAAF has issued this term. It has 5 opinions left to issue, all of which were argued less than three months ago:

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 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)

CAAF issues Lee opinion

CAAF has released its opinion in Lee. More later.

Raynor's formula: rehearing + new charges = interesting issues

In United States v. Raynor, __ M.J. ___, No. ACM 35449 (reh) (A.F. Ct. Crim. App. June 12, 2008), the Air Force combined a retrial on old charges with a new trial of other charges. So that would be something old, something new, and something wild blue.

The defense and the CA entered into a deal in which the defense would ask the military judge to essentially adjudge separate sentences for the old charges and the new charges. The PTA would then cap what the CA would approve for each. If the military judge declined, the PTA also included an aggregate cap. The sum of the individual caps could equal, but could also fall below, the aggregate cap. The military judge partially played along, but the sentence that he imposed and its rationale would have hit the aggregate cap in either event.

On appeal, the defense attacked the PTA, arguing first that the PTA's alternative approaches resulted in the PTA being ambiguous, thus allowing Senior Airman Raynor to withdraw his guilty pleas. Second, the defense argued that the PTA was against public policy because it invited the military judge to violate the deliberative process privilege by revealing how he reached his sentence. AFCCA rejected both challenges. AFCCA found that the PTA's terms were clear and that SrA Raynor demonstrated at trial that he understood how they would work. As to the second argument, AFCCA found that asking the military judge to announce separate sentences was reasonable given the case's unusual procedural posture.

The next issue was one of first impression: whether the concept of unreasonable multiplication of charges can limit the government's charging decisions in two successive courts-martial of the same servicemember. Yes, ruled AFCCA. The court reasoned: "A fundamental concern underlying the doctrine of unreasonable multiplication of charges is the potential for abuse of discretion. The potential for overreaching in the exercise of prosecutorial discretion clearly can occur in successive prosecutions. We . . . hold that unreasonable multiplication of charges may be raised in a successive prosecution." Id., slip op. at 6-7 (internal citation omitted). But AFCCA went on to rule that there was no UMC in this case.

AFCCA set aside the adjudged forfeitures to cure an Emminizer violation. It also set aside a finding of guilty to a child assault charge on statute of limitations grounds, applying United States v. Lopez de Victoria, 66 M.J. 67 (C.A.A.F. 2008). But the court didn't award any meaningful sentence relief as a result.

Warning to defense counsel: don't store privileged materials in your sunglasses case; AFCCA holds they can be opened during a gate inspection

In a published opinion, AFCCA today reversed a military judge's ruling that security forces personnel exceeded the lawful scope of a vehicle gate inspection when they opened the draw string of a sunglasses pouch and looked inside. United States v. Burney, __ M.J. ___, Misc. Dkt. No. 2008-01 (A.F. Ct. Crim. App. June 12, 2008).

The military judge suppressed the drugs that the security forces found in the pouch, ruling that the security forces had exceeded the scope of the written instructions providing for the gate inspection. The government appealed the military judge's ruling under Article 62.

In a unanimous opinion written by the recently retired Judge Soybel, AFCCA reversed. The court ruled:

We hold the military judge erred in ruling, as a matter of law, Security Forces personnel conducting base entry control point inspections are limited to looking inside of a vehicle's compartments and may not inspect other containers in the vehicle. Specifically, in this case we hold it was reasonable under the Fourth Amendment for Security Forces personnel to inspect inside the appellee's closed glasses pouch for contraband as part of conducting a lawful inspection of vehicles entering Cannon Air Force Base.

Id., slip op. at 3 (footnote omitted).

AFCCA applied the Supreme Court's four-part test from Bell v. Wolfish, 441 U.S. 520 (1979), to determine the appropriateness of the inspection: "Courts must consider the scope of the particular intrusion, the manner in which it [was] conducted, the justification for initiating it and the place in which it [was] conducted." Burney, slip op. at 4 (alterations in original).

AFCCA issues two published opinions

AFCCA issued two published opinions today. They aren't on AFCCA's web site yet, but I've posted them on caaflog.com.

United States v. Burney, __ M.J. ___, Misc. Dkt. No. 2008-01 (A.F. Ct. Crim. App. June 12, 2008).

United States v. Raynor, __ M.J. ___, No. ACM 35449 (reh) (A.F. Ct. Crim. App. June 12, 2008).

CAAF sets aside rape conviction as legally insufficient

We previously noted that while most legal sufficiency claims fail at CAAF, a non-trivial percentage of such claims actually succeed. CAAF's unanimous opinion in United States v. Bright, __ M.J. ___, No. 07-0269/AR (C.A.A.F. June 9, 2008), provides more support for that proposition.

Judge Erdmann wrote for the court, holding that the evidence was legally insufficient to convict Sergeant First Class Bright of raping a trainee. In a highly fact-intensive ruling, CAAF essentially held that threatening to take away a trainee's weekend pass and other abuses of First Sergeant Bright's position of authority over her weren't sufficient to satisfy the "by force and without consent" prong of the old Article 120.

CAAF emphasized that First Sergeant Bright's conduct was nevertheless criminal: "We do not question that Bright's conduct -- an egregious abuse of his position for which he was charged and convicted of maltreatment -- was criminal. However, we cannot conclude that a reasonable factfinder could find that the particular circumstances involved in this case show that 'resistance [was] overcome by threats of death or great bodily harm' necessary to sustain a conviction for rape." Id., slip. at 19 (alteration in original).

Based on the ACCA docket number, it appears that First Sergeant Bright has already served his entire five years of confinement. In fact, it appears that the case was docketed with ACCA in 2002 and that ACCA summarily affirmed in December 2006. Had the military justice appellate review system consisted of a single-tier of CAAF review, perhaps First Sergeant Bright's conviction would have been overturned before he had served his entire term of confinement.

Government seeks extension of deadline for the Navy JAG to certify Wheeler

We previously discussed NMCCA's published opinion in United States v. Wheeler, 66 M.J. 590 (N-M. Ct. Crim. App. 2008), where the court invalidated a portion of Military Rule of Evidence 707's ban on evidence that an accused took a polygraph. The defense wanted to present evidence of the polygraph examinations and interrogating agents' use of those examinations and their results to argue that Petty Officer Wheeler's subsequent confession was false. The military judge, citing Rule 707, excluded the evidence. NMCCA reversed, finding that the accused's constitutional right to present a defense trumped that application of Rule 707.

Monday's CAAF daily journal includes an entry noting that "a motion for enlargement of time to file a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed by the United States under Rule 30 on this date." United States v. Wheeler, __ M.J. ___, No. 08-5007/NA (C.A.A.F. June 9, 2008).

New CAAF decision: United States v. Bright [UPDATED]

CAAF's web site is back up, but hasn't been updated. In the meantime, I've gotten a hard copy of a decision CAAF issued on Monday. United States v. Bright, __ M.J. ___, No. 07-0269/AR (C.A.A.F. June 9, 2008). I've posted it here.

[11 June evening update: Bright is now available on CAAF's web site here.]

CAAFtastrophe: Day 2

As the itinerant No Man notes in his post below, CAAF's web site remains down for a second day. If the problem isn't fixed soon, we might be reduced to blogging about military appellate animal metaphors again. Here's hoping Maxwell AFB can somehow save us from that fate.

More Iraqi Civilian Deaths Lead to Courts-Martial

At least one news outlet, here, is reporting that another Marine has been charged with voluntary manslaughter in the deaths of two Iraqi civilians. The accused, a Marine sniper, is represented by Gary Myers. Seems Mr. Myers' work on the Haditha cases has landed him in a small circle of counsel in these types of cases.

Also, the court-martial of Lt Col Chessani, the officer charged in the Haditha killings with allegedly gumming up the investigation, appears to be stalled with a decision on a UCI motion coming next week. For some pretty bad reporting on the case, see here.

Still no CAAF website access, I am stranded in BWI waiting for the weather to clear (I know, what weather?) so I'll keep checking.

Haditha cases continue to roil the military justice waters

The legal aftermath of Haditha continues. As noted here last week, 1stLt Andrew Grayson was aquitted at a court-martial of two specs of making false official statements, two specs of attemtped fraudulent separation from the service, and one additional spec that based on media reports appears to have been obstructing justice. Here's a link to a lengthy AP article on the case.

The Marine Corps chose not to court-martial four enlisted Marines allegedly involved in the Haditha incident. Two courts-martial remain. One if that of SSgt Frank Wuterich, which is currently the subject of an Article 62 appeal seeking to reverse the military judge's ruling quashing a subpoena issued to CBS. The other is the case of LtCol Jeffrey Chessani. The military judge in the Chessani case is scheduled to rule on an unlawful command influence motion on 16 June. If the case proceeds to trial, it is scheduled to start on 21 July.

We previously discussed the military judge's preliminary ruling in Chessani finding sufficient evidence to require the government to rebut the defense's UCI claim.

As this report in the Marine Corps Times discusses, General Mattis took the stand on 2 June and denied that "he was influenced by an investigator when he made the decision to charge [LtCol Chessani] with failing to investigate the killings of 24 Iraqi men, women, and children." How many times has a four-star general been a witness in a court-martial case?

Here's a link to an interesting discussion of the case on the web site of the Thomas More Law Center, which is representing LtCol Chessani. The Thomas More Law Center thought it significant that unlike General Mattis, IMEF CG (and MARFORCENT Commander) Lieutentant General Helland didn't testify. Here's a very pro-defense discussion of the case, again highlighting LtGen Helland's failure to testify on the UCI motion. It quotes the head of the Thomas More Law Center as saying: "The prosecution made a colossal blunder not calling Lt. Gen. Helland to testify. . . . [The military judge] has already decided there is evidence of inappropriate command influence and it is now the prosecution's burden to prove beyond a reasonable doubt that it didn't occur. Without Helland's testimony to corroborate Mattis they failed to meet that burden."

Another UA NMCCA opinion? [UPDATED]

Almost exactly a year ago, we noted that 15 ostensibly published NMCCA opinions had never shown up in the Military Justice Reporter. Most of them showed up later that summer -- presumably after a search and rescue team was dispatched to locate them. Now we seem to have another UA NMCCA opinion.

We previously posted a pdf of NMCCA's en banc published opinion in United States v. Abdirahman, __ M.J. ___, No. NMCCA 200401082 (N-M. Ct. Crim. App. May 19, 2008) (en banc). That opinion was issued the day before NMCCA's published opinion in United States v. Dossey, __ M.J. ___, No. NMCCA 200700537 (N-M. Ct. Crim. App. May 20, 2008), and three days before NMCCA's published opinion in United States v. Pimienta, __ M.J. ___, No. NMCCA 200600788 (N-M. Ct. Crim. App. May 22, 2008).

None of the three is on NMCCA's own web site. Dossey and Pimienta -- both of which were issued after Abdirahman -- are on both NKO and LEXIS. Abdirahman is on neither. Why not?

[10 June evening update: Abdirahman went up on NKO today. But bizarrely, Dossey and Pimienta went up on NMCCA's own web site today but Abdirahman, which was released before either of those opinions, didn't. Nor is it on LEXIS.]

[11 June evening update: Abdirahman is now up on NMCCA's web site here.]

CAAF's web site apparently down

CAAF's web site and the Air Force Court's web site -- both of which are hosted at Maxwell Air Force Base -- have been down most of the day and appear to remain down. But the Coast Guard Court's web site, which was down earlier today and which is in the "afls16.jag.af.mil" domain, is back up. Does anyone know why the Coast Guard Court site is up while the CAAF and AFCCA sites are down?

Another published CGCCA case?

Two new ostensibly published opinions showed up on CGCCA's web site. We discuss the evenly divided en banc Bonilla opinion below. But the Coast Guard Court's web site also features "20080606 United States v. Gomez, M.J..pdf." I can only hope that the "M.J." portion of that link is a typo, because there's nothing about the Gomez opinion that suggests it should be published. United States v. Gomez, __ M.J. ___, No. 1276 (C.G. Ct. Crim. App. June 6, 2008).

CGCCA again holds 2 CGIS agents' 5-minute conversation in front of a suspect for the admitted purpose of getting him to reinitiate isn't interrogation

According to the calendar, it isn't yet summer, but the thermometer here in the mid-Atlantic says it is. Perhaps that explains CGCCA's summer rerun of its holding that it's okay for two CGCIS agents to crowd into a tiny interrogation room and have a five-minute conversation about the offense in front of a handcuffed suspect who has invoked his right to counsel for the admitted purpose of getting the suspect to talk about the offense. United States v. Bonilla, __ M.J. ___, No. 1259 (C.G. Ct. Crim. App. June 6, 2008) (en banc). We discussed the earlier panel decision in Bonilla here. See United States v. Bonilla, 65 M.J. 911 (C.G. Ct. Crim. App. 2008). In its en banc rehearing, the Coast Guard Court evenly divided three-to-three on the question, thus affirming the trial judge's ruling.

As he did in panel, Judge Kantor wrote the majority opinion. Judge Tucher again joined Judge Kantor, reinforced this time by Judge Lodge.

Here is the majority's description of the crucial facts of the case. Mind you, this is the description offered by the judges who didn't think that the agents were reinitiating:

At approximately 2154, Special Agents Mullinax and Head entered the small room where Appellant was being held. They were aware that Appellant had been advised of his Article 31 rights and that he had requested a lawyer. As a result, they did not direct any questions to Appellant, but the two agents engaged in idle conversation about the case. Special Agent Mullinax testified that he hoped this conversation would result in SN Bonilla reinitiating discussions about the case."

Bonilla, slip op. at 5 (emphasis added).

And, gee, what do you know? It worked. "Within five minutes, Appellant asked one of the agents, 'Sir, can I ask what this is about?' The agents replied that they could not speak with Appellant unless they read him his rights and he was willing to waive his rights. Appellant agreed to do so." Id.

The majority framed the key issue as "whether Appellant initiated further communication or the actions of the special agents amounted to an unlawful interrogation, or the functional equivalent thereof, prior to Appellant asking his questions about why he was being detained." Id., slip op. at 6.

The majority characterized the CGIS agents' conduct as "borderline." Id., slip op. at 7. Nevertheless, relying on Oregon v. Bradshaw, 462 U.S. 1039 (1983) -- a case that did not feature law enforcement agents carrying out a set-piece conversation for five minutes in a tiny room in front of a handcuffed suspect who had invoked -- the majority held "that Appellant initiated communication with the special agents." Bonilla, slip op. at 6.

The majority downplayed the agents' admitted subjective intent to get Seaman Bonilla to talk despite having invoked. Quoting Rhode Island v. Innis, 446 U.S. 291, 301 (1980), the majority observed, "Determing whether words or actions are reasonably likely to elicit an incriminating response turns on 'the perceptions of the suspect, rather than the intent of the police.'" Bonilla, slip op. at 7. But knowing the speaker's intent can be helpful in figuring out the reasonably likely effect of the speaker's words. (Okay, that might conflict with my normal position on use of legislative history in construing statutes.) The CGIS agents were trying to make Seaman Bonilla speak. They engaged in a five-minute conversation about the case to try to get him to do so. Then Bonilla did, in fact, speak. Call me crazy, but that seems quite probative in determining whether their words were reasonably likely to elicit an incriminating response.

In dissent, Chief Judge McClelland reprised her position that the "agents' actions cannot be said to be likely to elicit an incriminating response, even if that was their ultimate intended (hoped-for) purpose." Id., slip op. at 10 (McClelland, C.J., concurring in part/dissenting in part). She nevertheless would suppress Seaman Bonilla's statements because when Bonilla was initially advised of his Article 31 rights, he wasn't told the offense of which he was suspected and because R.C.M. 304(e) requires that when a servicemember is placed under restraint, the servicemember "shall be informed of the nature of the offense which is the basis for such restraint." Seaman Bonilla's statements should be suppressed, Chief Judge McClelland reasoned, because his reinitiation was the result of the violation of those notice requirements.

Finally in dissent, the cavalry of Judges Felicetti and Pepper rides over the hill, presenting a compelling argument that Seaman Bonilla's statements were inadmissible because the CGIS agents impermissibly reinitiated interrogation with their five-minute one-act play. They reason:

[Appellant] remained handcuffed with a restraining belt in a small room for several hours after invoking his counsel rights. At 2159, two agents crowded into the small room with Appellant and one to three uniformed officers. The reason for this close contact was the agents' hope that Appellant would reinitiate discussions about the case. They proceeded, therefore, to talk to each other, including some idle conversation about the case, and tried to avoid looking at Appellant despite the awkwardly close quarters. Based on this record, these actions clearly appear to be part of a subtle interrogation plan.

Id., slip op. at 13 (Felicetti, concurring in part/dissenting in part).

I agree except for the word "subtle."

An evenly divided en banc opinion would seem to be an outstanding candidate for JAG certification. Will the Judge Advocate General of the Coast Guard certify the Edwards issue to CAAF? If not, will CAAF grant review to decide whether to drop the curtain on the five-minute one act play as an interrogation ploy?

Marine Corps court of inquiry criticized

I was on the road most of last week, so I'm behind on my reading. Here's a link to an editorial from this past week's Marine Corps Times criticizing the level of openness in the proceedings and report of the court of inquiry examining the actions of a Marine Corps special operations company in Afghanistan. Here's the crux:

Having promised a full and open inquiry, the Corps held many hearings in secret session, held the findings secret, and released its decision on the disposition of the case on the Friday afternoon before Memorial Day, the perfect time to bury such news in a long holiday weekend.

The Golden CAAF Stakes

The Kabul Klipper has been unable to bestow the Golden CAAF on anyone for so long, it looked like it might become his by adverse possession. But now there is a Golden CAAF Stakes developing with a few contenders approaching the starting gate. Of course, the metaphor ultimately breaks down -- some horse will have to win the Belmont, even if Big Brown were to disappoint. But no one has to win the Golden CAAF.

Let's look at the horses in the paddock. LCDR Eversole's Stevenson cert petition has generated considerable buzz in the CAAFlog comments and NIMJ and NVLSP have given it a steroid shot with an amicus brief. The Supremes have requested a response from the Acting SG. It's due on 3 July.

Of course, 3 July also happens to be the very day on which a cert petition would be due in Denedo v. United States, 66 M.J. 114 (C.A.A.F. 2008). If the Acting SG were to seek cert in Denedo, it would become the instant favorite -- the Big Brown of the Golden CAAF Stakes.

If history is any guide, the SG will seek more time to respond to Stevenson and will seek more time to decide whether to seek cert in Denedo.

It seems likely that in its Stevenson response, the Acting SG will revisit the fascinating debate between the SG's office and Gene Fidell about whether the Supremes' cert jurisdiction over CAAF cases is limited to issues that CAAF granted or applies to the case as a whole.

Three other military justice cases are also in the Supremes' cert paddock. The cert petition in Wallace, No. 07-1403 [insert standard disclaimer here] -- the active pursuit inevitable discovery exception case -- is scheduled for conference this coming Thursday. The cert petition in Wilson, No. 07-1447, the mistake-of-age-defense-to-sodomy-with-a-child case, is scheduled for conference a week later on 19 June. And the longest shot of them all, Tillery, No. 07-11102, a pro se IFP cert petition, is scheduled for that same conference.

Of course, we won't know if we have a Golden CAAF Stakes winner until the Supremes announce the results of their first conference of the October 2008 term. So there's still plenty of time to place your metaphorical bets.

Haditha Courts-martial Update

The Washington Post, and many other news organizations, is reporting here that 1st Lt. Andrew Grayson, USMC, was acquitted yesterday of alleged false statements in the investigation of Iraqi deaths in Haditha. Grayson was alleged to have ordered the photos of the killed Iraqis deleted. Grayson argued he ordered the deletion as routine procedure because servicemembers are not allowed to have such photos on personal computers. Grayson was also acquitted of all other charges.

Staff Sgt. Frank Wuterich's case is stalled as an appeal to NMCCA seeking un-aired footage from a CBS News interview grinds slowly through NMCCAs Art. 62 machine, a machine we have discussed here. After the Grayson acquittal the government will likely move to exclude the result form Wuterich's case, an easy W for the Gov't since Wuterich's own attorney said the cases had nothing to do with each other, here. The same story in the Connecticut Record-Journal reports that Wuterich's military defense counsel, Maj. Haytham Faraj and Lt. Col. Colby Vokey, are both retiring and may not be extended again.

10 . . . 9 . . . 8 . . . 7

CAAF released another opinion today. United States v. Elfayoumi, __ M.J. ___, No. 07-0346 (C.A.A.F June 4, 2008). Here's a link. That leaves just seven more to be decided this term.

In Elfayoumi, CAAF split 3-2 on an implied bias members challenge issue. Judge Baker wrote for himself, Chief Judge Effron, and Judge Stucky. Judge Erdmann, joined by Judge Ryan, dissented.

One of the members stated that he believed homosexuality was "morally wrong." He also stated that "a person who possesses pornographic material is immoral." Three of the charged offenses involved same-sex acts, including same-sex forcible sodomy, and the case also involved pornography. The member indicated that he could nevertheless "fairly evaluate the evidence." The military judge denied a challenge for cause against the member. (The opinion doesn't indicate how that challenge was preserved. But based on the ACCA number in the case, it appears that this case was tried years before the 2005 Wiesen amendments to the MCM.)

The majority ruled: "[T]he question is not whether [members] have views about certain kinds of conduct and inclinations regarding punishment, but whether they can put their views aside and judge each particular case on its own merits and the law, such that appellate courts, in applying R.C.M. 912, are not left in substantial doubt as to the fairness or impartiality of the members. Here, because the military judge specifically questioned MAJ G on his ability to separate his personal views from the facts of the case, and in light of MAJ G's responses, we conclude that the military judge did not abuse his discretion in denying the challenge for cause." Id., slip op. at 9-10.

The dissent maintained that "a reasonable member of the public would have serious doubt about the fairness of Elfayoumi's trial with Major (MAJ) G sitting on the panal." The dissent maintained that a "reasonable observer could conclude that MAJ G's 'strong,' 'moral' and 'Christian' beliefs would influence his adjudication of the offenses and his perception of Elfayoumi who: inferentially was homosexual; rented and viewed pornographic materials; touched another male while viewing pornography; indecently touched three other males at distinct times; and committed forcible sodomy upon a male who refused his sexual advances."

The dissent also faulted the military judge for failing to indicate on the record that he considered the liberal grant mandate in ruling on the challenge.

This divided opinion doesn't appear to reflect a doctrinal dispute within CAAF. Rather, it appears that the implied bias issue was very close to the line. Two judges saw it on one side of the line; three saw it on the other.

Air Force Times article on computer monitor/attorney-client privilege issue

Here's a link.

Supremes request response in Stevenson

Gene Fidell reports in a comment to a post below that the Supreme Court has asked the Solicitor General to respond to the cert petition in Stevenson v. United States, No. 07-1397.

New CAAF grant

United States v. DiPaola, __ M.J. ___, No. 08-0200/NA (C.A.A.F. June 2, 2008):

WHETHER THE MILITARY JUDGE ERRED WHEN HE REFUSED TO INSTRUCT THE MEMBERS ON THE DEFENSE OF MISTAKE OF FACT AS TO SPECIFICATION 2 OF CHARGE II.

Gitmo Chief Judge: trial judge's replacement unrelated to rulings

As reported here last week, Army Colonel Peter E. Brownback III was recently replaced as presiding judge in the trial of Omar Khadr, a Canadian detainee accused of killing a U.S. soldier in 2002.

Although Khadr's counsel had intimated that Judge Brownback was removed from the case because he had ruled in favor of the defense, the real reason, according to Marine Colonel Ralph Kohlmann, the chief judge at Guantanamo, was the fact that Judge Brownback's active-duty orders expire at the end of this month. "My detailing of another judge was completely unrelated to any actions that Col. Brownback has taken in this or any other case," Kohlmann said.

Chief Judge Kohlmann also laid to rest the suggestion that Judge Brownback had asked to retire: "Any suggestion that Col. Brownback asked to return to retired status before the case of US v. Khadr was completed is also incorrect."

CAAF resolves another case by summary disposition

On 13 February, CAAF granted review in United States v. Fletcher, to determine "WHETHER THE MILITARY JUDGE ERRED WHEN HE DENIED TRIAL DEFENSE COUNSEL'S MOTION TO SUPPRESS APPELLANT'S POSITIVE URINALYSIS TEST RESULT AND THE EVIDENCE DERIVED THEREFROM." 66 M.J. 188 (C.A.A.F. 2008).

CAAF ordered briefing of the issue. Once again, those briefs were sufficient to decide the case. On Friday, CAAF issued this summary disposition:

We granted review to determine whether the military judge erred when he denied trial defense counsel’s motion to suppress Appellant’s positive urinalysis test. 66 M.J. 188 (C.A.A.F. 2008). In this case, there was: (1) a properly constituted command drug testing program in effect at Appellant’s installation, and (2) evidence that the order to provide the specimen was incident to command under Military Rule of Evidence 313(b). Therefore, we hold that the military judge did not abuse his discretion in denying the motion to suppress. Accordingly, it is ordered that the decision of the United States Air Force Court of Criminal Appeals is affirmed.

United States v. Fletcher, __ M.J. ___, No. 04-0465/AF (C.A.A.F. May 30, 2008) (summary disposition).

To quote David Lee Roth, we're hittin' the road

I'll be back Thursday night. I'm not sure what kind of Internet access I'll have while I'm gone, so I don't know if you'll be hearing from me for about 96 hours. As always when I'm out of here (and even when I'm in town), I invite my CAAFlog colleagues to keep everyone informed.

NMCCA's Abdirahman decision finds reversible cumulative error

In NMCCA's en banc decision in United States v. Abdirahman, __ M.J. ___, No. NMCCA 200401082 (N-M. Ct. Crim. App. May 19, 2008) (en banc), Chief Judge O'Toole wrote the majority opinion. The court split 7-2 in holding that the evidence was factually sufficient to support a rape conviction. Senior Judge Geiser and Judge Kelly dissented, essentially arguing that the prosecutrix's testimony is too "unpersuasive and inconsistent" with other evidence to provide proof beyond a reasonable doubt of Seaman Recruit Abdirahman's guilt.

But the court ruled 9-0 that the conviction and sentence must be set aside due to the little-used principle of cumulative error. First, NMCCA held that the military judge erred by allowing a nurse practitioner to provide opinion testimony that the prosecutrix's physical and and emotional conditions were common compared to other rape victims. This was expert testimony, NMCCA ruled, and the prosecution hadn't provided the defense with the required notice to present expert testimony. Nor did the prosecution lay an adequate foundation for the nurse practitioner's expertise or the reliability of her opinion, NMCCA ruled. NMCCA also held that the military judge erred by failing to instruct the members concerning the proper use of this expert opinion testimony.

The court then held that the military judge erroneously admitted some statements that the prosecutrix made to her friends more than 30 minutes after the alleged rape under an excited utterance theory. The court also held that these statements weren't admissible under the residual hearsay exception.

The court also found improper bolstering of the prosecutrix's credibility and improper argument by the trial counsel. While it didn't find that either of these errors rose to the plain error level, it nevertheless considered them in making its cumulative error ruling.

The court reasoned that while "none of the assignments of error raised by the appellant, or otherwise considered by this court, constitute reversible error individually, we find that the accumulation of errors . . . require us to evaluate the fairness of the appellant's trial using the cumulative-error doctrine." Id., slip op. at 17. The court ultimately held, "[W]e cannot conclude with fair assurance that the cumulative impact of the errors in this case, which preserved and enhanced the stature of the Government's central witness, did not substantially affect the judgment in the appellant's trial. We must, therefore, vacate the findings." Id., slip op. at 19 (internal citations omitted).

Finally, even though the en banc reconsideration decision came more than 4-1/2 years after the trial, NMCCA rejected a post-trial delay challenge. The court held that SR Abdirahman wasn't prejudiced by the delay and chose not to exercise its discretion to provide relief even absent prejudice.

Litigating IAC in the post-Melson world

CAAF's decision in United States v. Melson, __ M.J. ___, 08-5003/AF (C.A.A.F. May 30, 2008), will probably considerably alter the way that ineffective assistance claims are litigated in the military.

Melson holds that a CCA can't find IAC without first ordering the production of an affidavit from the trial defense counsel. Without regard to whether existing law already included such a requirement -- a point of contention between the majority and the dissent -- I think that this requirement is a change from the previous practice.

Here is Melson's procedural approach to IAC claims:

1. A CCA considering an IAC claim must consider "whether 'the allegation and the record contain evidence which, if unrebutted, would overcome the presumption of competence.'"Melson, slip op. at 11-12 (quoting United States v. Lewis, 42 M.J. 1, 6 (C.A.A.F. 1995)).

2. "If this threshold is met, the appellate court then must compel the defense counsel to explain his actions." Id., slip op. at 12. "[A]t this point in appellate proceedings, the Court of Criminal Appeals [is] required to order a response from the trial defense counsel as to the allegations." Id. (emphasis added). For the CCA to decide the IAC claim in the defense's favor "without directing defense counsel to answer the allegations" is "error." Id.

CAAF expresses its hope that Melson won't dissuade appellate government counsel from providing affidavits from trial defense counsel before the CCA has found that the defense has made a prima facie showing of IAC. Id., slip op. at 13. But my prediction is that after Melson, appellate government counsel will almost never do so. This is because many trial defense counsel are uncomfortable about providing such affidavits to government counsel -- even though they are certainly entitled to defend themselves once their former client has attacked their competence -- and because appellate government counsel will find it tactically advantageous to wait until the CCA has indicated its particular concerns about the trial defense counsel's performance before obtaining an affidavit.

So here is how I expect IAC claims to be almost universally litigated in the post-Melson world in which we now practice. First, the defense will provide an affidavit from the accused seeking to establish a prima facie case of IAC. In most cases, the CCA will rule that the defense failed to establish a prima facie case. The defense will then petition CAAF, seeking review of whether the CCA should have found that it established a prima facie case of IAC. In most cases, CAAF will deny the petition and the case will become final. In some small subset of cases, CAAF will grant the petition and in some subset of those cases, CAAF will find that the CCA erred by not finding a prima facie case of IAC and will remand the case to the CCA for the government to obtain a declaration from the TDC. The case will then return to the CCA, where the declaration will be obtained, a new round of briefing -- and possibly oral argument -- will follow, and the CCA will rule on the IAC claim. But presumably at that point, Ginn II still applies. So in many, if not most, cases, the CCA still won't be able to rule on the merits of the defense claim. Because unless the TDC has essentially supported the IAC claim, there will now be a battle of dueling affidavits, since we know that the defense has already made a prima facie showing of IAC. So the likely result of any such proceeding will be a DuBay hearing.

Following such a DuBay hearing, the case will return to the CCA, where another round of briefings -- and possibly oral argument -- will follow. Then the CCA can finally rule on the IAC claim's merits. If the defense loses, then the defense will seek review from CAAF again, this time on the IAC claim's merits. If the government loses, the government might seek to have the case certified to CAAF for it to determine the IAC claim's merits.

In a small subset of IAC cases, the CCA will initially determine that the defense has established a prima facie case of IAC. The CCA will then issue some sort of interlocutory finding reflecting that determination and order the government to obtain an affidavit from the trial defense counsel explaining the apparent deficiency in performance. Presumably then a second round of briefing -- and possibly oral argument -- will follow before the CCA can then consider whether the TDC has essentially admitted facts establishing IAC or whether a DuBay hearing is necessary.

So in practice, litigation of colorable IAC claims in the post-Melson world will be considerably more complicated -- and lengthy -- than in the pre-Melson world. Let's all follow along at home to see if Melson plays out as I predict.