Wednesday, June 04, 2008

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.

19 comments:

joonka said...

anyone heard Luke is going back to DuBAY.This case continues to perplex, this is the USACIL DNA CASE, the first in the system went to DuBay back in 2006. Apparently the government never responded to NMCCA grant of defense motion to produce investigation. Now NMCCA has ordered a new Dubay in 45 days to investigate USACIL'S INVestigation into its DNA Goon MR, Phillip R Mills, work whom they fired almost 2 yrs ago. Its amazing how during the initial DuBay USACIL actors all testified to the fruit of their ongoing internal investiagtion of this MR Mills character, but after 2 years they have been unable to produce any documents to shed light on their investigation of their former employee in order for NMCCA to execute CAAF'S mandate as it relates to what happened in Luke's case. Don't beleive I can post on this blog, folks forgive me for commenting on a completely different legal interest. However, I am wondering if any of you more knowledegable about the military justice sytem to comment on and maybe shed some light on thisUSACIL issue.

Anonymous said...

The tiebreaker for implied bias should be the emotional impact of the issue at hand. Whether one likes the police, for example, lacks emotional power; homosexuality, on the other hand, evokes strong emotions. Better to protect against that.

Anonymous said...

I have one Lan-Cay M9 from the Canti case. Anybody interested? Best offer.

Phil Cave said...

So if it was close to the line, the liberal grant mandate should have been applied. That two judges were troubled is a good indication that there could well be many in the public who question the fairness of the panel.
Sad.

No Man said...

Agree with CAAFlog, close case. Both ops are reasonable.
A question for the commentariat:

If the gender roles were different, this was a rape case, the member said he believed it was a sin/immoral to have pre marital sex, and there was evidence that the victim had sexual relations prior to the alleged rape (for whatever evidentiary reason), does CAAF still say 3-2, no implied bias? Maybe they do. Just a thought because that is how this case may be applied in the future against the government.

Anonymous said...

However close some might view the issue, I'm really surprised it didn't go the other way, especially in light of Chief Judge Effron's dissent in Phillips, 52 M.J. 268:

"In the armed forces, homosexuality is different from any other form of sexual activity. There is no requirement to discharge servicemembers who engage in adultery, heterosexual sodomy, fraternization, sexual harassment, or child abuse. A person who engages in homosexual conduct, however, is subject to mandatory discharge, with very limited exceptions. 10 USC § 654(b). Congress, in enacting this mandatory discharge requirement, specifically found that 'the presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability.' The statutory findings underscore the high degree of antipathy to homosexuality in the armed forces." He further describes the evidence in such cases as "extremely controversial" and "inflammatory".

While the dissenting opinon in Phillips was in the context of a 404(b) challenge, its reasoning would seem to apply with equal force to the analysis of "implied bias" in this case. It would have also helped to distinguish a finding of "implied bias" in this case from some other case involving a personal expression of strong moral conviction or religious belief.

Anonymous said...

Does anybody else think CAAF has shifted ever so slightly to the right this last term?

Anonymous said...

Shifting to the right, and away from the wrong? I'd say I'm agreeing/disagreeing with the decisions at about the same rate as last term.

Anonymous said...

No Man,
Your gender-bender question is a good one. Generally, I think the law bends inappropriately for some gender and sex issues. (Partly due to over-compensation for very real rape reporting problems; feminist lobbying; political correctness; and the fear of otherwise conservatives to deal forthrightly with sex issues. In other words, feminist lawyers have put one over on the conservative judiciary because they just can't handle the issue soberly).

In your hypothetical, if the issue on voir dire were pre marital sex, and there was evidence that the victim had sexual relations prior to the alleged rape, I think CAAF would 'protect' the victim by excluding the member. This is even the member were brought through the standard rehabilitation exercise, with all the authenticity of a Milli-Vanilli hit.

Anonymous said...

So, at the end of voir dire the TC is left to guess what CAAF will think the public thinks of the fairness of the member?

Bill Cassara said...

Another case that should never have come up on appeal. The TC should not have challenged it or the MJ should have granted it. So much wasted time and money.

Anonymous said...

9:24 Anonymous,
Yes, the TC should use his/her judgment. "Left to guess what the public would think" is a contorted way to put it. Your tongue must be in your cheek. If a prosecutor's case is so weak that he/she feels a need to cling to such tenous members...that's the real problem.

Anonymous said...

The strength of a case is weighed long before member's are seated. It has to be since the government never knows if an accused will choose members. And isn't that really prism? To asses a member through the eyes of CAAF as they look at the public? If I ask a member if they can follow the law and set aside personal views and the response is "yes" what should a TC do then?

Anonymous said...

You are feigning innocence, here. You can't be serious.

If you ask a member such a shallow, insincere, and robotic question: "Can follow the law and set aside personal views?" then the answer you get is meaningless. It is like the click "ok" box when trying to get your computer to do something.

"What you should" is ask better questions and strike people who have "issues." I really think that the people who have controversial matters bouncing around in their heads are relatively easy to spot.

The guy going to law school at night, loves cops, wants to be a prosecutor. Thats easy. Don't play ignorant. The government knew that was a controversy, but WANTED that member.

The puritan who judges pre-marital sex as a sin worthy of opprobrium is a problem. Thats easy. But somebody WANTS that member (perhaps to "judge" the victim).

Anonymous said...

What happens when the member says, "I have a moral issue with rape."

Anonymous said...

Your seemingly tart rhetorical question falls apart upon closer examination.

Why would any member say that?

Virtually everybody has a moral problem with rape. Its such an obvious taboo, that it requires no statement. So I would inquire into the context of a member saying it. If that statement was offered gratuitously, then the member has got to go...because that member is on a hunting expedition to do justice.

If, on the other hand, the prosecutor is asking that question, then he/she is just trying to prime the emotional pump before the trial. Its not a legitimate exercise of government power.

Anonymous said...

Most military prosecutors are not smart enough nor experienced enough to prime any pump.

CAAFlog said...

As a Marine active duty and reserve appellate defense counsel for about nine years combined, plus almost another year as an Air Force civilian appellate defense counsel, I have had the pleasure of reading many hundreds of court-martial records of trial. From that vantage point, I draw the conclusion that the vast majority of military prosecutors are very smart. Also from that vantage point, I can assure you that military prosecutors regularly use voir dire to introduce their theory of the case to the members and certainly do use voir dire to elicit desired responses -- and sometimes emotions -- from the members.

Anonymous said...

Yes, but what about those prosecutors who were NOT CAAFLOG's students at NJS?