Gray's federal habeas representation

The President's approval of Gray's death sentence highlights the importance of a never-used portion of AR 27-10 (16 Nov 2005):

13–12. Habeas corpus representation
Military prisoners sentenced to death by a court-martial, who seek to file in Federal civilian courts post-conviction habeas corpus petitions, will, upon request to The Judge Advocate General, be detailed military counsel by The Judge Advocate General to assist counsel appointed by the District Court or individually retained for representation in such proceedings and any appeals therefrom. See UCMJ, Art. 70(e). This right exists irrespective of any decision by the accused Soldier to hire civilian counsel at his own expense for such representation.

S.2052 Equal Justice . . . Act: Held Over

A well placed source informs me that S.2052, the Equal Justice for United States Military Personnel Act of 2007, was held over today in the Senate Judiciary Committee. The bill, as discussed previously on CAAFlog here and here, co-sponsored by Senators Arlen Specter and Russ Feingold, will give the Supreme Court certiorari jurisdiction over CAAF cases where an appellant was denied review or denied a petition for extraordinary relief. It will likely come up for consideration after the August recess. Here is a link to the remarks of Senator Feinstein on the bill's introduction last year.

CAAF and representation at the Supremes

In 2006, Staff Sergeant Lovett filed a pro se petition for writ of mandamus at CAAF, asking CAAF to order the Judge Advocate General of the Air Force to provide him with counsel to represent him before the Supreme Court in challenging CAAF's affirmance of his court-martial conviction and 14-year sentence. Lovett v. United States, 64 M.J. 232 (C.A.A.F. 2006). CAAF granted the requested writ without dissent. CAAF ruled:

The Uniform Code of Military Justice provides: "Appellate defense counsel shall represent the accused before the Court of Criminal Appeals, the Court of Appeals for the Armed Forces, or the Supreme Court . . . when requested by the accused . . . ." Article 70(c)(1), UCMJ, 10 U.S.C. § 870(c)(1) (2000). Petitioner's case is not final as a matter of law. See Article 71(c), UCMJ, 10 U.S.C. § 871(c) (2000). The immediate question before us is not whether counsel must file any particular matter in the course of representing a servicemember, but whether counsel may discontinue such representation before the case is final as a matter of law. Nothing in the record of the present case established a basis for counsel to sever the lawyer-client relationship. Accordingly, it is ordered that the Judge Advocate General of the Air Force shall provide appellate defense counsel to represent Petitioner for the purposes of review of his court-martial under Article 67a, UCMJ, 10 U.S.C. § 867a (2000).

Id. at 232-33. We discussed that ruling here.

Appellate defense counsel subsequently filed a cert petition on SSgt Lovett's behalf, which the Supremes denied. Lovett v. United States, 127 S. Ct. 1333 (2007). We previously discussed that cert petition here.

So a servicemember in Cpl Ryan's position could probably obtain appellate representation by filing a pro se petition for extraordinary relief at CAAF. The sticky wicket is that a servicemember in Cpl Ryan's position probably wouldn't know without a lawyer's advice that he or she could obtain representation by filing a pro se petition for extraordinary relief at CAAF.

Cert petition challenges military appellate defense shops' failure to represent clients before the Supremes

The last several days, we've been having a discussion on CAAFlog about military appellate defense shops' responsibilities when their clients want to seek cert from the Supremes. Given the heavy concentration of current and former appellate defense counsel among CAAFlog's writers and readers, it's a topic the resurfaces from time to time. See, e.g., here, here, here, and here.

You know that old expression about everyone complaining about the weather but no one ever doing anything about it? Well LT Darrin W.S. MacKinnon, JAGC, USNR, has just tried to do something about the problem of military appellate defense counsel declining to file cert petitions in apparently non-frivolous cases. Here's the QP in Ryan v. United States, a cert petition that I understand has been filed at, but not yet docketed by, the Supreme Court:

Whether a military defense counsel's refusal to honor a military servicemember's request to appeal his case to the Supreme Court effectively denies him that right under the UCMJ, and, whether that refusal to appeal constitutes ineffective assistance of counsel?

The full text of the petition, which is well worth reading, is here.

Thomas cert petition QP

Here's the QP in the Thomas cert petition:

Whether a court of appeals abuses its discretion when, after a majority of charges are reversed due to constitutional error, it fails to remand a case to the trial court for resentencing and instead imposes the exact same sentence?

I'll provide a link to the whole cert petition tomorrow.

Number of military executions in the UCMJ era

A spate of media reports about the military death penalty has followed President Bush's approval of the death sentence in United States v. Gray. And many of the articles I read today included inaccuracies. I won't attempt to correct them all, but one inaccuracy involved the number of military executions during the UCMJ era. I will provide that information, since a question about that number has been raised in a more scholarly setting.

In his recent article, Time to Kill: Euthanizing the Requirement for Presidential Approval of Military Death Sentences to Restore Finality of Legal Review, MAJ Toman writes:

Since the approval of the UCMJ in 1950, ten service members have been tried and executed. The last Soldier was executed in 1961. See Captain Cody Weston, United States v. Loving: The Resurrection of Military Capital Punishment, 77 OR. L. REV. 365, 369–70 (1998) (citing Cynthia Swarthout Conners, The Death Penalty in Military Courts: Constitutionally Imposed?, 30 UCLA L. REV. 366, 369 n.18 (1982)). But see DWIGHT H. SULLIVAN, EXECUTIVE BRANCH CONSIDERATIONS OF MILITARY DEATH SENTENCES 137 (2002) (stating the number as twelve executions and fourteen commutations based on a memorandum from Attorney General Robert F. Kennedy in 1961); EUGENE FIDELL, EVOLVING MILITARY JUSTICE (2002).

195 Mil. L. Rev. 1, 7 n.14 (2008).

The military has actually executed 12 servicemembers since President Truman signed the UCMJ into law on 5 May 1950, though what MAJ Toman wrote is literally true because 2 of the 12 were tried before 5 May 1950. In May 1949, three Air Force general courts-martial convicted Private Herman Dennis, Staff Sergeant Robert Burns, and Private Calvin Dennis of rape and premeditated murder and sentenced each to death. An Air Force Board of Review affirmed all three death sentences. United States v. Dennis, 4 C.M.R.(A.F.) 872 (1949); United States v. Burns, 4 C.M.R.(A.F.) 907 (1950); United States v. Dennis, 4 C.M.R.(A.F.) 930 (1949). The Judicial Council affirmed the three death sentences as well. Dennis, 4 C.M.R.(A.F.) 888-904 (1950); Burns, 4 C.M.R.(A.F.) 923-27 (1950); Dennis, 4 C.M.R.(A.F.) 943-53 (1950). In 1951, President Truman approved two of the death sentences and commuted the third. Dennis, 4 C.M.R.(A.F.) at 907 (1951) (approving death sentence); Burns, 4 C.M.R.(A.F.) at 930 (1951) (approving death sentence); Dennis, 4 C.M.R.(A.F.) 956 (1951) (commuting death sentence). Habeas litigation in the two approved cases ultimately went to the Supreme Court, which denied relief. Burns v. Wilson, 346 U.S. 137 (1953). The two Airmen were hanged at Northwest Military Air Field, Guam, on 28 January 1954. See Airmen Hanged in Guam, N.Y. Times, Jan. 28, 1954, at 7.

Those two executions were in addition to the 10 executions of Soldiers convicted under the UCMJ. (O'Brien - 1954; Beverly - 1955; Suttles - 1955; Riggins - 1955; Edwards - 1957; Moore - 1957; Ranson - 1957; Thomas - 1958; Day - 1959; Bennett - 1961).

So there have been 12 executions of servicemembers in the UCMJ era, though only 10 of those 12 were tried under the UCMJ, the other two having been tried under the Elston Act.

Full text of 2008 MCM amendments

An alert reader provides us with this link to Executive Order 13468 of July 24, 2008, complete with the actual text of the 2008 MCM amendments.

Thanks to Executive Order 13468, the 2008 edition of the MCM that we waited three years for will become obsolete on 23 August. This raises two questions. First, the obvious one: when will the new version of the MCM -- which was supposed to be an annual Manual -- be published?

Now for the other question. When woolly mammoths roamed North America and I was a first lieutenant, the Manual for Courts-Martial was a big burgundy three-ringed binder. Every time the President would change the Manual, GPO would print up a bunch of replacement pages and we would remove the old obsolete pages from the three-ringed binder and insert the new pages. In many ways the old-style Manual was awful. The binder's rings never seemed to line up and pages would constantly tear out. But at least I always had a reasonably up-to-date Manual -- unlike modern-day military lawyers who practiced for three years using a 2005 MCM that was already OBE when it was published. So here's my question: why doesn't TJAGLCS take a break from launching sophomoric jibes at the Navy and prepare an electronic version of the 2008 MCM that deletes the obsolete provisions and incorporates the new provisions from Executive Order 13468? Wouldn't that be really helpful to every military justice practitioner? It doesn't have to be TJAGLCS -- I'd be happy if anyone did it. Well, anyone other than whoever designed the new extremely user unfriendly electronic Military Judges' Benchbook that we can't get authorization to load onto our office computers.

New military cert petition

The Supremes have docketed a new military cert petition in the case of Thomas v. United States, No. 08-117. Darrin MacKinnon, Esq., is the petitioner's counsel. CAAF summarily granted and affirmed in the case, which was returning to CAAF following a remand to the Navy-Marine Corps Court. United States v. Thomas, __ M.J. ___, No. 06-0918/MC (C.A.A.F. Apr. 25, 2008) (summary disposition). The previous remand was to clarify "ambiguity as to the affirmed findings." United States v. Thomas, 65 M.J. 250 (C.A.A.F. 2007) (summary disposition). NMCCA then tweaked the findings in an unpublished opinion but nevertheless affirmed the original sentence. United States v. Thomas, No. NMCCA 200401149 (N-M. Ct. Crim. App. June 19, 2007).

If anyone knows the QP, please post it.

Acting SG joins Louisiana in seeking rehearing of Kennedy decision

The Acting Solicitor General today asked the Supreme Court to reconsider its opinion in Kennedy v. Louisiana, 128 S. Ct. 2641 (2008). Here's a link to the Motion for Leave to File Brief and Brief for the United States as Amicus Curiae Supporting Petition for Rehearing. And here's a link to SCOTUSblog's discussion of the Acting SG's move.

As was the case with Louisiana's rehearing petition, military law plays a prominent role in the Acting SG's filing. It uses the National Defense Authorization Act for Fiscal Year 2006 for both procedural and substantive purposes. First, the Acting SG argues that because Kennedy endangers the constitutionality of that act's authorization of the death penalty for child rape, it justifies the extraordinary step of allowing the United States to support a rehearing petition in a case in which the United States didn't originally participate. Second, the Acting SG uses the NDAA substantively to argue that it and President Bush's implementation of the NDAA in his 2007 MCM amendments undercut the Supremes' finding of a national consensus against imposition of the death penalty for child rape.

Senate Judiciary Committee to consider expansion of cert jurisdiction in military justice cases

On Thursday, the Senate Judiciary Committee is scheduled to mark up S. 2052, the Equal Justice for United States Military Personnel Act. The legislation is sponsored by Senator Feinstein and co-sponsored by Senators Feingold and Specter. The bill would expand the Supreme Court's certiorari jurisdiction to include direct appeals in which CAAF denies review and petitions for extraordinary relief for which CAAF denies relief. This would give service members (and civilians court-martialed in contingency areas) who receive sentences meeting Article 66's jurisdictional threshold access to the Supreme Court comparable to that of every state and federal criminal defendant in the United States.

New military cert petition filed

My treasured colleague, Capt Tim Cox, has filed a cert petition in Larson v. United States, No. 08-114. Here's the QP:

In O’Connor v. Ortega, 480 U.S. 709 (1987), the plurality and concurrence disagreed that the reasonableness of a government employee's expectation of privacy changes according to the Government's identity at the time of its intrusion. Here, supervision could access Petitioner's password-protected work computer and monitor his use. However, law enforcement agents conducting a criminal investigation entered Petitioner's private, locked office and searched his computer without a warrant. Is evidence discovered in such a search admissible?

The complete cert petition is available here.

The Acting Solicitor General's response deadline is 25 August. But if history is any guide, he'll waive his right to respond within the next two weeks. The question will then become whether any Justice asks the United States to respond.

SIGNIFICANT MILITARY JUSTICE DEVELOPMENT: President approves Gray's death sentence

Here's the news. This marks the first time a president has approved a military death sentence in 51 years. The last president to do so was President Eisenhower, who approved Army Private John A. Bennett's death sentence on 2 July 1957. Following unsuccessful habeas challenges in the Article III courts and an unsuccessful petition to CMA for a writ of error coram nobis, PVT Bennett was executed at the USDB on 13 April 1961 after President Kennedy declined to grant clemency.

Article 71(a) of the UCMJ 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." 10 U.S.C. § 871(a). The last time a president acted under Article 87(a) was on 12 February 1962, when President Kennedy commuted a Sailor's death sentence to a dishonorable discharge, total forfeitures, and confinement for life.

Gray was sentenced to death by a court-martial at Fort Bragg, NC, on 12 April 1988. The Army Court of Military Review affirmed Gray's death sentence in two opinions isused in 1992 and 1993. United States v. Gray, 37 M.J. 730 (A.C.M.R. 1992); United States v. Gray, 37 M.J. 751 (A.C.M.R. 1993).

CAAF affirmed Gray's death sentence in a 3-2 opinion in 1999. United States v. Gray, 51 M.J. 1 (C.A.A.F. 1999). The Supreme Court denied cert on 19 March 2001. Gray v. United States, 532 U.S. 919 (2001). The Court denied a rehearing petition on 14 May 2001. Gray v. United States, 532 U.S. 1035 (2001). The case has been ripe for presidential action ever since.

In all likelihood, Gray's counsel will now file a petition for habeas corpus in the U.S. District Court for the District of Kansas under 28 U.S.C. § 2241.

Resource: Article on Military Contractor Status in Law of War (by a CAAF clerk)

While I am loathe to take off the top of CAAFlog one of the most entertaining posts CAAFlog has written, I wanted to add a note about an article by a current CAAF law clerk that caught my attention this weekend. The article has a good treatment of the effects, or potential effects, of the recent UCMJ amendment discussed (I won't pile on the heres) on this site. The article, titled Professional Military Firms under International Law, 9 Chi. J. Int'l L. 213 (2008), by Richard Morgan, does not appear to be available for free on-line. However, if the author is a CAAFlog reader, and can procure a copy for re-publication, we would be glad to link to it or host it on CAAFlog.com. Feel free to contact me at my CAAFlog email address.

The article's thesis is that private military firm employees, a nuanced definition you will have to read the article to fully place in context, should be classified as subordinate to US armed forces and treated as combatants. While I have only read the article once, I wonder how much the author has delved into the ability of US military commanders to supervise and adequately train private military firm employees of non-DoD agencies, which are prevalent in Iraq and elsewhere. A few thoughts that came to mind (written in a style some may recognize as reminiscent of a certain frequent brief writer at the CCAs and CAAF):

While I don't pretend to be a law of war expert, would military commanders really have the ability to supervise the activities and training of Dept. of XYZ security forces as they would be required to under the Geneva Conventions in such a regime? Also, what changes would need to be made in the uniforms, vehicles, ammunition, etc. of non-DoD PMF employees to enable them to comply with the requirements of being combatants?

The US military might already have enough to do without this added burden, in addition to the burden already created by the extension of UCMJ jurisdiction to DoD contractors. I also wonder whether the use of force in self defense by PMF employees in places like Iraq really has the consequences suggested under international law that the author suggests, or whether every contractor (PMF or not) retains the right to self defense? [UPDATED: My last entry sounded like I was patting myself on the back. Not what I meant. I was attempting to give a shout out to the author. Let me try again.] I think Mr. Morgan's article wasn't focused on these questions, so this is not a criticism. To the contrary, the article gives an interesting proposal and some food for thought. A nice piece of writing on this topic, and very provocative, Mr. Morgan.

Military justice: still the Rodney Dangerfield of legal systems

In their book America (The Book) , Jon Stewart et al., provide a handy wire diagram of "America's Court System." John Stewart et al., America (The Book) 84-85 (2004). In the diagram, immediately below the Supreme Court is a wire that leads to "U.S. Court of Military Appeals," with the explanation: "For soldiers who got nowhere else to go . . . who got nowhere else to go!!!" Below that box, a wire leads to "Courts of Military Review," with the explanation: "This is the JAG one." (And while not relevant to the point of this post but still amusing, below that box is a wire leading to "U.S. Court of Veterans Affairs," with the explanation: "Looking for the world's most depressing court experience? You've found it.")

Now at the time America (The Book) was published, CAAF hadn't been CMA for a decade; nor had the CCAs been CMRs for a decade. So while perhaps it's surprising that the wire diagram included the military justice system's appellate courts at all, their inclusion with obsolete names was a rather backhanded compliment.

Once, when being upbraided by a bow tie wearing pundit for allegedly posing softball questions to a Democratic candidate for President, Jon Stewart famously replied: "I didn't realize that . . . news organizations look to Comedy Central for their cues on integrity. . . . The show that leads into me is puppets making crank phone calls."

So just as journalists shouldn't look to the Daily Show as a role model for journalistic ethics, we probably shouldn't look to the Daily Show's writers to learn about America's court system. So where might we look? How about, say, the Administrative Office of U.S. Courts? Or maybe not. As our beloved JO'C called to my attention at a ridiculously early hour this morning (JO'C -- I can only hope that you were still up from Saturday night and not up already on Sunday morning), the Administrative Office of Court's web page called "About U.S. Federal Courts" informs the American people: "Congress has created several Article I or legislative courts that do not have full judicial power. Article I courts are U.S. Court of Military Appeals, U.S. Tax Court, and U.S. Court of Veterans' Appeals were established under Article I of the Constitution." Reading that over again, it's not only obsolete, but also syntactically mangled. Maybe I'm better off consulting America (The Book)'s wire diagram after all.

CAAF signals interest in member challenge case

A1C Michael V. Martinez was tried by a special court-martial for divers uses of methamphetamine. The military judge denied a challenge for cause against a court-martial member due to his attitude about drug offenses. During voir dire, the member -- Lt Col D -- stated that "as an ex-squadron commander -- former squadron commander -- I mean -- my guideline has always been that there's no room in my Air Force for people that abuse drugs . . . ." When the defense counsel later asked Lt Col D whether no punishment was "an option for you to consider in a case such as this" -- which involved divers uses of methamphetamine -- Lt Col D replied, "No." He explained that "there has to be punishment for it." After the military judge stepped in to explain that "[l]egally, the only thing you have to do is be able to consider [no punishment] as an option," Lt Col D said, "Yes I can do that." Later, during questioning by the military judge, Lt Col D said that despite his comment about "no room in my Air Force for people that abuse drugs," he had not made up his mind that A1C Martinez must automatically be discharged.

The military judge denied the defense's causal challenge to Lt Col D. The military judge ruled:

I don't believe that there's any basis for challenge for cause. I believe his comment was sufficient -- in my mind -- to indicate that he had not made up his mind that -- in fact, said so -- there was no requirement that Airman Martinez be automatically discharged -- receive a punitive discharge for the use of drugs -- and, so I'm convinced that he does not have a predisposition or inelastic disposition toward any type of punishment in this case.

AFCCA affirmed the military judge's ruling in an unpublished opinion. United States v. Martinez, No. ACM S31080 (A.F. Ct. Crim. App. Jan. 2, 2008) (per curiam). AFCCA emphasized that "Lt Col D never claimed that all drug usage warrants a punitive discharge. He simply indicated that he has concerns with keeping drug users in '[his] Air Force.' Such a sentiment from a career officer is not evidence of actual bias when that same officer agrees to consider all of the evidence and all of the punishment options." Id., slip op. at 9.

AFCCA didn't view Lt Col D's "no room" and no-no-punishment comments as a basis for challenge; rather, AFCCA viewed them as enhancing his qualifications to sit as a member: "Both of these comments are answers that demonstrate a level of candor that we want and encourage from court members so that both parties can effectively use their peremptory challenges. Clearly, candor by members does not undermine the public's perception of the fairness in the military justice system." Id., slip op. at 10. AFCCA later continued its praise: "Lt Col D's comments demonstrate a level of professional commitment to the unique requirements of military service and the importance of good order and discipline in the military. These qualities alone neither create a perception of unlawful command influence nor serve as a basis for an assertion of implied bias." Id.

A1C Martinez petitioned CAAF. United States v. Martinez, __ M.J. ___, No. 08-0375/AF (C.A.A.F. Mar. 3, 2008). I understand that his counsel then filed a supp and JAJG filed a 10-day letter. But yesterday, CAAF ordered the Government to "submit an answer to the supplement within 15 days." United States v. Martinez, __ M.J. ___, No. 08-0375/AF (C.A.A.F. July 24, 2008). The defense then has five days to reply.

While CAAF's order certainly doesn't guarantee that it will grant review, it reflects CAAF's continued interest in the growth industry of members challenge cases.

New pro se IFP military cert petition

The Supremes have docketed a pro se IFP cert petition in the case of Baker v. United States, No. 08-5432. CAAF summarily affirmed the case on 12 May. United States v. Baker, __ M.J. ___, No. 02-0334/AR (C.A.A.F. May 12, 2008) (summary disposition). CAAF had previously granted review in the case and set aside ACCA's decision for further consideration of an IAC issue. United States v. Baker, 58 M.J. 380 (C.A.A.F. 2003). Following two DuBay hearings, ACCA rejected the IAC claim in a published decision that we discussed here. United States v. Baker, 65 M.J. 691 (A.C.C.A. 2007). As usually occurs when a servicemember petitions CAAF following an initial grant and remand, CAAF granted Staff Sergeant Baker's petition and summarily affirmed. Now Staff Sergeant Baker is asking the Supreme Court to review the results of his special court-martial that was tried a decade ago.

New commentator in the CAAFlog herd

We are pleased to announce that a new commentator will be joining the CAAFlog herd: Charles D. "Cully" Stimson. Cully is a Senior Legal Fellow at the Heritage Foundation's Center for Legal and Judicial Studies. He is the former Deputy Assistant Secretary of Defense for Detainee Affairs. And in his capacity as a Navy JAG reservist, he is a member of the Naval Justice School's faculty. Welcome aboard, Cully!

Updates

1. Rear Admiral still vice Vice Admiral

It appears that reports of the Senate's confirmation of RADM MacDonald's promotion were premature. Major General Rives, the Judge Advocate General of the Air Force, was appointed to the grade of lieutenant general effective yesterday, 23 July. But we now understand from a friend o' CAAFlog that Senate confirmation of RADM MacDonald's promotion to vice admiral was the subject of a "hold" by a Senator. We understand that the hold has nothing to do with RADM MacDonald or his promotion, but rather arises from unrelated senatorial displeasure with the Navy.

2. Wuterich continued

Today, in my Reserve judge advocate capacity, I was detailed as an appellate defense counsel in the ongoing Wuterich case at CAAF. This will necessarily curtail my previous incessant blogging about the case. I hope that the No Man will now take on the Wuterich beat.

POTUS signs 2008 MCM amendments

The President today signed an Executive Order issuing the 2008 amendments to the Manual for Courts-Martial. The changes take effect in 30 days. Here's a very uninformative link. As you will see, the White House's web site doesn't actually provide the text of the MCM amendments that the President made today. But I assume that the Executive Order adopts the proposed amendments that were published at 72 Fed. Reg. 54,246 (Sept. 24, 2007). Here's a link to those changes.

The Senate approves two new three-star constellations

A friend o' CAAFlog reports that the Senate this evening confirmed the nomination of Major General Rives to the grade of lieutenant general and the nomination of Rear Admiral MacDonald to the grade of vice admiral.

BREAKING NEWS: CAAF orders oral argument in Wuterich

CAAF today ordered oral argument in the Wuterich case on 17 September 2008. United States v. Wuterich, __ M.J. ___, No. 08-6006/MC (C.A.A.F. July 23, 2008) (order). Here's a link to CAAF's order.

CAAF consolidated the direct review of NMCCA's Article 62 appeal decision in United States v. Wuterich, 66 M.J. 685 (N-M. Ct. Crim. App. 2008), and the separate petitions for extraordinary relief filed by CBS and SSgt Wuterich's counsel. CAAF ordered Code 46 to file a consolidated answer no later than 22 August and gave CBS and SSgt Wuterich's counsel 10 days to file their replies.

But here's one of the most interesting aspects of the order: it doesn't expressly grant SSgt Wuterich's petition to review NMCCA's opinion. That could have implications for Supreme Court review. 28 USCS § 1259(3) gives the Supremes jurisdiction to review cases in which CAAF "granted a petition for review under section 867(a)(3) of title 10." But for CAAF's ruling on a petition for extraordinary relief to qualify for Supreme Court review under 28 USCS § 1259(4), CAAF must have "granted relief." Because CAAF didn't formally grant the petition for review, it doesn't appear that CAAF has opened the § 1259(3) door to the Supremes.

If CAAF doesn't grant SSgt Wuterich's petition for review at any point, then the case could qualify for Supreme Court review only under § 1259(4). But the ability to go to the Supremes under that subsection would be unequal. The government could file a cert petition if it loses, since CAAF would have granted relief, but neither SSgt Wuterich nor CBS would be able to file a cert petition if they were to lose, since then no relief would have been granted. CAAF could eliminate this disturbing disparity by expressly granting SSgt Wuterich's petition for review of NMCCA's ruling on the Article 62 appeal.

Denedo cont'

The Chief Justice has granted the Acting Solicitor General's request to extend the cert petition deadline in Denedo, No. 07A1027, but moved up the requested deadline to 29 August.

Acting SG seeks still more time in Denedo

The Acting SG has asked Chief Justice Roberts for an extension until 1 September (which is actually Labor Day, so the extension would run until 2 September) to file a cert petition in Denedo. No. 07A1027.

Interrogation evidence ruling in Hamdan

The judge in the Hamdan case, which opened Monday at Guantanamo Bay, has ruled that the prosecution cannot use certain statements taken from accused Osama bin Laden aide Salim Hamdan while he was held at Panshir and Bagram Air Base, Afghanistan.

The judge, Navy Captain Keith Allred, found that the statements were provided while Hamdan was subjected to "highly coercive" conditions. He left open the possibility that the prosecution could use statements by Hamdan during detention at Gitmo. Prosecutors expressed confidence that the ruling would not impair their ability to try the case. Nonetheless, chief prosecutor Army Colonel Lawrence Morris said the government might appeal the ruling, citing the possibility that the ruling would influence the prosecution of future cases.

Judge Allred previously issued a ruling (reported in CAAFlog here) disqualifying the convening authority's legal adviser, Air Force Brigadier General Thomas Hartmann, from participating in the Hamdan case based on allegations that General Hartmann improperly attempted to influence the proceedings. The Hamdan case was cleared to go forward following a ruling from the U.S. District Court for the District of Columbia released on Friday.

Military law front and center in Kennedy v. Louisiana rehearing petition

Led by Georgetown Law Professor Neal Katyal, attorneys for Louisiana today sought reconsideration of last month's Supreme Court opinion holding the death penalty unconstitutional for the rape of a child in Kennedy v. Louisiana, 128 S. Ct. 2641 (2008). Here's a link to the rehearing petition, courtesy of SCOTUSblog, and here's a link to SCOTUSblog's coverage of the rehearing petition. Here's a link to the NYT article on the rehearing petition.

Military law mavens will recognize Professor Katyal as the counsel who brilliantly argued, and won, Hamdan v. Rumsfeld, 548 U.S. 557 (2006), which invalidated the old military commission system largely on the ground that it violated Article 36 of the UCMJ.

The Kennedy rehearing petition focuses on Section 552(b) of the National Defense Authorization Act for Fiscal Year 2006, 119 Stat. 3136, 3363 (2006), and the President's subsequent MCM changes to incorporate that statute into military practice. The petition is rich in military legal history. It notes that under military law, rape has been "punishable by death at least since the 1863 Army Articles of War." Petition for Rehearing at 1-2. The Petition also observes that the Supreme Court "has looked to military law to interpret the Eighth Amendment since at least 1879," citing a case that upheld this sentence imposed by a Utah judge for premeditated murder: that "between the hours of ten o'clock in the forenoon and three o'clock in the afternoon of [December 14] you be taken from your place of confinement to some place within this district, and that you there be publicly shot until you are dead." See id. at 10 (citing Wilkerson v. Utah, 99 U.S. 130 (1879)). The petition also observes that in his concurring opinion in Furman v. Georgia, 408 U.S. 238 (1972), Justice Brennan "referred to the practice of 'review[ing] various treatises on military law' when seeking societal trends." Id. (quoting Furman, 408 U.S. at 275 (Brennan, J., concurring)).

After asking the Supremes to reconsider Kennedy based on military law's effect on the opinion, the petition asks the Court to reconsider Kennedy based on its effect on military law. The petition argues that Kennedy "invalidates a federal statute without argument. There is no obvious way to read the decision that maintains Section 552(b). Military courts, for example, have applied Coker [v. Georgia, 433 U.S. 584 (1977)] without entertaining any notion that courts-martial are exempt from this Court's Eighth Amendment pronouncements regarding civilians. See United States v. Clark, 18 M.J. 775, 776 (N-M.C.M.R. 1984)." Id. at 13. But in Matthews, CMA entertained just such a notion when it observed:

Congress obviously intended that in cases where an accused servicemember is convicted of premeditated murder, certain types of felony murder, or rape, the court-martial members should have the option to adjudge a death sentence. See Articles 118 and 120. Probably this intent cannot be constitutionally effectuated in a case where the rape of an adult female is involved, Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977) -- at least, where there is no purpose unique to the military mission that would be served by allowing the death penalty for this offense.

United States v. Matthews, 16 M.J. 354, 377 (C.M.A. 1983).

All eyes now turn to the Acting Solicitor General. He may have to walk a tightrope; presumably he won't want to argue that Kennedy necessarily invalidates the death penalty under Article 120 because he will want to retain the maneuver room that CMA created in Matthews.

The point of my original post on this subject was that the military justice system is invisible. But as a result of Linda Greenhouse's NYT piece on the overlooked Section 552(b) of the NDAA for FY 2006, that's certainly not the case today.

My apologies to the good -- and apparently sober -- people of Wisconsin

Last night I failed to heed that sage advise of President Reagan's: "trust but verify." I trusted ACCA, but I failed to verify what it wrote.

Let's recap. In its opinion in United States v. Hearn, __ M.J. ___, No. ARMY 20060128 (A. Ct. Crim. App. July 17, 2008), ACCA borrowed a voluntary intoxication test from State v. Kruger, offering this citation: "67 P.3d 1147, 1149 (Wis. Ct. App. 2003)." Hearn, slip op. at 13. Last night, I used that citation as an opportunity to poke fun at my friends from the Badger State: "In Hearn, ACCA follows the lead of the Wisconsin Court of Appeals. Based on many of the Badger Staters I know, it seems sensible to use Wisconsin law as a model when considering voluntary intoxication." It didn't occur to me until today to wonder what the heck decisions from Wisconsin are doing in West's Pacific Reporter 3d Series. It turns out they aren't; Wisconsin Court of Appeals decisions are published in the West's North Western Reporter. Hearn was actually a decision of the Court of Appeals of Washington, Division Three, not the Wisconsin Court of Appeals as ACCA erroneously wrote and as I erroneously copied.

But that said, for a company with a compass direction in its title, West Publishing does seem to have an amazingly poor sense of geography. I tend to think of Washington and Oregon as Northwestern states. But I am wrong; according to West Publishing, the "North Western" part of the country consists of the Dakotas, Nebraska, Minnesota, Michigan, and Iowa. Of course, there actually was a time when that general part of the country was thought of as the Northwest. West Publishing's North Western Reporter may be a quaint homage to the Northwest Ordinance of 1787. But wait a second -- didn't the old Northwest Territory include what are now Ohio, Indiana, and Illinois, the home of Northwestern University? So what are those three states' opinions doing in West's North Eastern Reporter? Can someone please alert West Publishing to the concept of the "Midwest"?

But at least some of the states covered by the North Western Reporter were once considered the Northwest. I'm pretty sure there was no point in American history when Kansas was considered a Pacific state. The only waves in Kansas are made of amber grain. Yet West's Pacific Reporter publishes decisions from Kansas courts. The capital of Kansas, as I learned in elementary school while studying the big rectangular states in the middle, is Topeka. Topeka is 300 miles closer to the Atlantic Ocean than it is to the Pacific Ocean. Topeka is also closer to the Gulf of Mexico, all five Great Lakes, Canada's Hudson Bay, and Lake Okeechobee than it is to the Pacific Ocean. Kansas is one of two states (the other is Oklahoma) that are entirely on the Atlantic watershed side of the Continental Divide but that West Publishing puts in its Pacific Reporter, which also includes cases from such "Pacific states" as Colorado, Wyoming, and Montana. I can only assume that no one at West Publishing has heard of the Rocky Mountains.

And apparently the next time I have a craving for Southwestern cuisine, I can head to KFC since West publishes decisions from the Blue Grass State in its South Western Reporter. When I think of the Southwest, I tend to think of New Mexico and Arizona. But according to West, those are "Pacific" states. S.W.3d is filled with decisions from such Southwestern states as Arkansas, Missouri, and Tennessee.

So maybe it's understandable that ACCA thought West would publish Wisconsin decisions in its Pacific Reporter. But ACCA borrowed its voluntary intoxication test from Washington, not Wisconsin. So I'm putting down my Leinenkugel and lifting a Redhook to toast the Washington Court of Appeals.

Important voluntary intoxication decision

ACCA's decision in United States v. Hearn, __ M.J. ___, No. ARMY 20060128 (A. Ct. Crim. App. July 17, 2008), provides useful clarification regarding the law of voluntary intoxication. In Hearn, ACCA follows the lead of the Wisconsin Court of Appeals. Based on many of the Badger Staters I know, it seems sensible to use Wisconsin law as a model when considering voluntary intoxication.

In Hearn, ACCA observes that "military courts have historically treated 'voluntary intoxication' as a special defense." Id., slip op. at 12. ACCA announces that it "will continue to apply voluntary intoxication as a defense to specific intent offenses." Id.

ACCA then addresses when a military judge must provide a voluntary intoxication defense instruction to the members. "[E]vidence that an accused consumed intoxicants, standing alone, is insufficient to require a voluntary intoxication instruction." Id. Rather, "[w]hen raising an issue of voluntary intoxication as a defense to a specific intent offense, 'there must be some evidence that the intoxication was of a severity to have had the effect of rendering the appellant incapable of forming the necessary intent, not just evidence of mere intoxication.'" Id., slip op. at 12 (quoting United States v. Peterson, 47 M.J. 231, 234 (C.A.A.F. 1997)).

ACCA then borrows a three-part test from the Cheesehead Court of Appeals to further clarify when a military judge must instruct on voluntary intoxication: "A defendant is entitled to a voluntary intoxication jury instruction when: (1) the crime charged includes a mental state; (2) there is [evidence of impairment due to the ingestion of alcohol and drugs]; and (3) there is evidence that the [impairment] affected the defendant's ability to form the requisite intent or mental state." Id., slip op. at 13 (quoting State v. Kruger, 67 P.3d 1147, 1149 (Wis. Ct. App. 2003) (alterations in original)). ACCA, again quoting the Cheeseheads, synopsizes: "[T]he evidence must reasonably and logically connect the defendant's intoxication with the asserted inability to form the required level of culpability to commit the crime charged." Id. (quoting Kruger, 67 P.3d at 1149-50) (alteration in original).

ACCA ultimately holds that "the failure of the military judge to instruct on the affirmative defense of voluntary intoxication was prejudicial error" that prevented it from "affirm[ing] appellant's conviction for indecent acts or liberties with a child." Id., slip op. at 14. ACCA instead affirms an LIO of indecent acts with another. Finally, ACCA reassesses the sentence and reduces the length of confinement by five months.

And a new published ACCA opinion

United States v. Hearn, __ M.J. ___, No. ARMY 20060128 (A. Ct. Crim. App. July 17, 2008).

New published AFCCA opinion

United States v. Jones, __ M.J. ___, No. S31164 (A.F. Ct. Crim. App. July 18, 2008).

Some numbers

Last year I wrote a post called Avoiding Entangling Alliances, which provided some end of term observations. Here's the first similar look at this term.

In the 2007 Term, only 35 cases were decided by the full 5-judge court. Of those 35 cases, 48.6% (17/35) were decided unanimously but only 11% (4/35) were decided by 3-2 votes. [By "decided unanimously" and "unanimous court" in this context, I mean a case in which there is an opinion of the court and no separate opinion -- not even a concurring opinion.]

This full term produced 65 opinions of the court. A very slightly higher percentage -- 50.8% (33/65) -- were decided by a unanimous court. But the percentage of 3-2 decisions almost doubled to 21.5% (14/65).

Among all cases decided, Judge Ryan had the most dissenting votes (10) while Chief Judge Effron and Judge Erdmann tied for the least (5). Judge Baker dissented 7 times and Judge Stucky 9.

In the 14 3-2 decisions, Judge Erdmann was the most likely to be in the majority (11/14). Chief Judge Effron and Judge Baker tied for second most likely (9/14). Judge Stucky was slightly behind (8/14), while Judge Ryan was the least likely to be in the majority in a 3-2 decision (5/14).

No strong voting bloc has emerged. The two judges most likely to vote together are Chief Judge Effron and Judge Baker. The two judges least likely to vote together are Judges Baker and Stucky. Here, from most likely to least likely, are the pairings:

1. Chief Judge Effron & Judge Baker
2. Judges Erdmann and Ryan
3. Chief Judge Effron & Judge Erdmann
Chief Judge Effron & Judge Stucky (tie)
5. Judges Stucky & Ryan
6. Judges Baker & Erdmann
7. Judges Baker & Ryan
Judges Erdmann & Stucky (tie)
9. Chief Judge Effron & Judge Ryan
10. Judges Baker & Stucky

[One caveat: for purposes of this analysis, voting together means voting for the same outcome. So if two judges each voted to affirm, but one wrote the majority opinion and the other concurred in the result, they would be counted as voting together. Similarly, if two judges dissented separately, they would be counted as voting together.]

CBS Petition in SSgt Wuterich case

Here is a link to CBS's petition to CAAF in CBS Broadcasting, Inc. v. NMCCA et al., previously discussed by CAAFlog here, here, and . . . you get the picture (search for "CBS" on CAAFlog). I wanted to point out the very authoritative citation on page 26, footnote 11. This is a slam dunk with that authority!

CAAFlog will have more later.

Canadian Deserter Legal Update

The NYT story on the status of US deserters in Canada, reported by CAAFlog here, will need to change one fact. As of Tuesday, July 15, 2008, at least one US military desrter has been deported. Robin Long, who reportedly deserted in 2005, was ordered deported earlier this week, see Canadian press report here. Apparently the Canadian court ruled that (by way of CTV.ca)

Long did not provide enough convincing evidence that he will face irreparable harm if he's sent back to the United States. [] She noted that the percentage of American military deserters prosecuted in the U.S. has increased since 2002. However, she said the vast majority were not prosecuted, let alone jailed for desertion.

Under the court's ruling, if more than 50% of US deserters were being court-martialed than Long could have stayed in Canada, eh? What if Long's particular command was BCD Special happy for deserters? Oh well, guess he should have thought about that before he fled to a country with a Conservative government. One comment on the NYT article, I had to laugh when I read this quote:

As for Mr. Glass [NOTE: he's the deserter in the NYT story], he said he was between low-paying factory jobs in Indiana when he joined the National Guard six years ago. [] But he said he had one crucial question for the recruiters before he signed. “They told me I’m not going to fight a war on foreign shores,” Mr. Glass said. [] Maj. Nathan Banks, a spokesman for the Army, said, “recruiters would never have made a comment of that sort.”

CAAF grants review of yet another child pornography case

In what is no doubt the latest reflection of the alarmingly high number of child pornography cases in the military justice system, CAAF yesterday granted review of this issue: "WHETHER THE COURT-MARTIAL HAD JURISDICTION OVER THE OFFENSE OF DISTRIBUTING AN IMAGE OF CHILD PORNOGRAPHY WHERE APPELLANT POSTED THE IMAGE ON THE INTERNET PRIOR TO ENTERING ACTIVE DUTY AND HE TOOK NO FURTHER STEPS TO DISTRIBUTE THE IMAGE AFTER IT WAS INITIALLY POSTED." United States v. Kuemmerle, __ M.J. ___, No. 08-0448/NA (C.A.A.F. July 15, 2008). CAAF ordered the parties to file briefs.

I can't find NMCCA's decision on the court's web site or even on NKO. Does anyone have a copy of what the court did below?

New military cert petition in a case with no SCOTUS jurisdiction

The Supreme Court just docketed a military cert petition that was filed on 7 May. House v. United States, No. 08-60. But the Court has no statutory cert jurisdiction in the case. The cert petition seeks review of CAAF's decision denying a writ appeal. House v. Judge Advocate General of the Navy, 66 M.J. 189 (C.A.A.F. 2008). The statute granting the Supremes cert jurisdiction over military justice cases doesn't include writ appeals that don't result in relief. See U.S.C. § 1259. But if the past serves as prologue, the Acting SG (whose response is due by 14 August) won't move to dismiss the cert petition for lack of jurisdiction. Rather, he'll waive the United States' right to respond and the petition will be denied in due course.

John Wells is the petitioner's counsel.

The Military Justice Symposium issue is here!

The June 2008 issue of the Army Lawyer, which is the Military Justice Symposium issue, is now available online here.

Wuterich Writ Day

Last Thursday was Wuterich Writ Day at CAAF. CAAF received two petitions for extraordinary relief in Wuterich, one from SSgt Wuterich himself and the other from CBS News. In re Wuterich, __ M.J. ___, No. 08-8021/MC (C.A.A.F. July 10, 2008); CBS Broadcasting v. Navy-Marine Corps Court of Criminal Appeals, __ M.J. ___, No. 08-8020/MC (C.A.A.F. July 10, 2008). One curious aspect of the latter petition for a writ of prohibition and/or mandamus is that it names SSgt Wuterich as a respondent. I'm not sure what relief CBS Broadcasting would be seeking from SSgt Wuterich. I'm going to try to go to CAAF at some point tomorrow and get a copy of CBS's petition for extraordinary relief. If I get it, I'll post it on CAAFlog.com.

The 2008 Silver CAAF Tongue Award Winner

This year's Silver CAAF Tongue Award for the most oral arguments of the term goes to Maj Brian Keller of the Navy-Marine Corps Appellate Government Division, who licked the competition with six oral arguments. Congratulations, Maj Keller -- though, unlike the Golden CAAF, no physical manifestation of this award actually exists.

The civilian counsel with the most oral arguments this term was Frank Spinner, with four.

That's a wrap

The final opinion of CAAF's term is out. And the term went out with a bang -- a 27-page majority opinion by Judge Ryan in Wilcox followed by a 30-page dissent by Judge Baker. United States v. Wilcox, __ M.J. ___, No. 05-0159/AR (C.A.A.F. Jul. 15, 2008).

More about Wilcox later. I'm atwitter -- I can now write a bunch of end-o'-term analyses.

The 10th Circuit on Article 134 convictions

Sometime ago, the No Man called my attention to a 23 June published opinion by the 10th Circuit concerning use of an Article 134 conviction as a sentence enhancer. See United States v. Brown, __ F.3d ___, No. 07-8065 (10th Cir. June 23, 2008). Here's a link. I expected the No Man to blog about it, but since he hasn't (and since he knows I'm among the three least patient lawyers in all of DOD), I declare his opportunity waived -- that's right, not forfeited; waived.

Ari Brown pled guilty to possession of child pornography in the U.S. District Court for the District of Wyoming. He had an odd plea bargain. He would receive 10 years if his prior court-martial conviction for an Article 134 offense was considered an enhancer under 18 U.S.C. § 2252A, but only five years if it wasn't. The district court concluded that it was and sentenced him to confinement for 10 years. A unanimous 10th Circuit panel concluded it wasn't and sent the case back to the district court for resentencing.

While stationed at Fort Campbell, Brown was tried by a court-martial where he pled guilty to and was found guilty of violating Article 134 by "[v]iolat[ing] 18 U.S.C. § 2252 by wrongfully distributing one or more visual depictions of a minor engaging in sexually explicit conduct."

As the 10th Circuit explained,

Section 2252A(b)(2) provides for an enhanced sentencing range of no less than ten years' imprisonment if the defendant:

has a prior conviction under this chapter [18 U.S.C. §§ 2251 et seq.], chapter 71 [18 U.S.C. §§ 1460 et seq.], chapter 109A [18 U.S.C. §§ 2241 et seq.], or chapter 117 [18 U.S.C. §§ 2421 et seq.], or under section 920 of title 10 (article 120 of the Uniform Code of Military Justice), or under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography . . . .

Brown, slip op. at 4 (alterations in original).

The 10th Circuit then went on to mischaracterize Article 134. It wrote, "There is no specific military code for the particular crime of which Mr. Brown was found guilty. Instead, he was convicted under clause 3 of Article 134 ('all conduct of a nature to bring discredit upon the armed forces . . .') which is something of a catchall provision. In order to convict Mr. Brown, the military court assimilated the elements of the crime from § 2252 – a federal child pornography statute." Id., slip op. at 5-6. So, oddly enough, the 10th Circuit quoted Article 134(2) when discussing Article 134(3). I'm not sure whether the 10th Circuit ever really grasped the "crimes and offenses not capital" concept that Article 134(3) actually covers or that provision's independence from the service discrediting and prejudice to good order and discipline prongs of Article 134.

Then, gaining somewhat firmer footing, the 10th Circuit observed that "Mr. Brown's prior conviction is for a violation of Article 134 – the catchall provision – and not § 2252. First, we are persuaded by the plain and ordinary meaning of the phrase 'under this chapter.'" Id., slip op. at 6. The court held that "under this chapter" means "'governed by' or 'subject to' § 2252." Id. It doesn't mean "as defined by" or "related or akin to" § 2252. Id. In support, the 10th Circuit favorably cited an ACMR decision (written by Judge Wayne Alley while he was on ACMR) and an AFCCA decision. Id. at 7 (citing United States v. Almendarez, 46 C.M.R. 814 (A.C.M.R. 1972); United States v. Sanchez, 59 M.J. 566 (A.F. Ct. Crim. App. 2003)).

Having decided that "Mr. Brown's conviction was under Article 134 and not § 2252," the 10th Circuit proceeded to decide whether an Article 134 conviction could be a sentence enhancer under § 2252. Id., slip op. at 9. It held that it could not. The court initially observed that the "language of § 2252A does not expressly include convictions under UCMJ Article 134 as a sentence-enhancer." Id. It then went on to apply one of my favorite canons of statutory construction. "Under the doctrine of expressio unius est exclusio alterius, 'to express or include one thing implies the exclusion of the other.'" Id., slip op. at 9-10 (quoting Black's Law Dictionary 620 (8th ed. 2004)). As we have seen, § 2252A expressly includes convictions under Article 120 of the UCMJ as the basis for a sentence enhancement under § 2252A. "Had Congress meant to include prior Article 134 convictions" as well as Article 120 convictions "as sentence-enhancers," the 10th Circuit ruled, "it could have easily done so explicitly." Id., slip op. at 10. The court concluded, "Because Congress amended the statute to include violations of the UCMJ and did not include Article 134, nor UCMJ violations relating to child pornography generally, we must agree with Mr. Brown that the plain language does not support the district court's interpretation." Id., slip op. at 11.

Finally, the 10th Circuit concluded that excluding Article 134 violations from the scope of § 2252A's sentence enhancement was "neither absurd nor irrational." Id. The 10th Circuit wrapped up this discussion by observing: "Although we need not – and cannot – determine Congress's precise reason for not including Article 134 convictions in the list of sentence-enhancers, we can safely conclude that it was not unthinkable for Congress to have intended this result." Id., slip op. at 14.

NMCCA on interpanel accord (kind of)

As previously discussed, in United States v. Dossey, 66 M.J. 619 (N-M. Ct. Crim. App. 2008) (Dossey II), a 2-1 NMCCA panel reversed its own earlier 3-0 decision about its jurisdiction to consider Article 62 appeals challenging mistrial rulings. Before Petty Officer Dossey's counsel petitioned CAAF for review, they unsuccessfully sought reconsideration en banc before NMCCA. Here's a link to NMCCA's order denying en banc recon. United States v. Dossey, NMCCA No. 200700537 (N-M. Ct. Crim. App. June 11, 2008) (en banc) (order).

While this isn't the point of this post, NMCCA first observes that "the court is unpersuaded the panel decision overrules or is inconsistent with prior precedents." Id., slip op. at 1. Any argument that Dossey II isn't inconsistent with the court's previous case law, including United States v. Pearson, 33 M.J. 777 (N.M.C.M.R. 1991), is unpersuasive. The plain language of Article 62 doesn't definitively indicate whether a mistrial ruling is susceptible to interlocutory appeal. Nor does Article 62's legislative history address that issue. Pearson and other previous Navy-Marine Corps Court decisions held that Article 62 should be construed strictly. If so, then the statute's failure to clearly bring mistrial rulings within its scope means they are excluded. Dossey II, on the other hand, read Article 62 broadly, so the statute's failure to clearly exempt mistrial rulings means they are included. The latter approach may or may not be a better approach than that of Pearson, but it is certainly an inconsistent approach.

But here's the point of this post. In the next paragraph of its en banc recon denial, NMCCA writes: "Further, the court notes that a decision to publish a case, and thereby establish a precedent, is, by long standing practice of the court, made en banc. Accord United States v. Coffin, 76 F.3d 494, 496 n.1 (2d Cir. 1996)." The cite to Coffin is followed by (with paragraph breaks omitted): "For the foregoing reasons, it is, by the Court, sitting en banc, this 11th day of June, 2008, ORDERED: That the appellee's motion for reconsideration en banc is DENIED."

Got that? Coffin is offered in support of denying reconsideration en banc. Let's look at Coffin, shall we?

Here's what the Second Circuit said in the very footnote that NMCCA cites: "Any other interpretation of Gambino would ignore our practice of not overruling circuit precedent without an in banc vote or at least a statement in the later opinion that it has been circulated to all the members of the Court and no member objects to the later decision." Coffin, 76 F.3d at 496 n.1.

I'm sure you already see the problem. Dossey II was a 2-1 decision, which means that a member of the court did "object[] to the later decision." So under Coffin itself, overruling Pearson (as well as 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)) would require en banc reconsideration. Yet NMCCA cites it for exactly the opposite proposition.

Legal posture of U.S. military deserters in Canada

Today's NYT had an interesting piece on the legal status of members of the U.S. military who desert and flee to Canada. Here's a link.

Shocking News: CAAFlog Blogger Court-Martialed

From Monday's Daily Journal:

No. 08-0613/AR. U.S. v. Christopher J. MATTHEWS. CCA 20030404. Appellant's motion to extend time to file the supplement to the petition for grant of review granted, but only up to and including July 22, 2008.

Ok, the other "t" is for Think Not! But, I had you going there for a minute?

Next term

This term isn't even over yet, but CAAF has already posted its oral argument schedule for next term's first two months. Thirteen cases are docketed for oral argument during the term's first two months -- 6 reviewing NMCCA decisions, 4 reviewing AFCCA decisions, 2 reviewing ACCA decisions, and 1 reviewing a CGCCA decision.

And then there was one: a CAAFlog contest

If I count correctly, there is but one opinion of the court remaining to be announced this CAAF term: United States v. Wilcox, No. 05-0159/AR. Your mission, should you choose to accept it, is to predict the date on which CAAF will issue its opinion in Wilcox. Please post your answers NLT 2100 EDT tomorrow, 10 July. In the case of a tie, the earliest posted answer wins.

The winner will receive a coveted CAAFlog t-shirt with "Military justice blogs are to blogs as military music is to music" on the back.

To quote Roger McGuinn, goin' down to the country

I'll be TDY tomorrow afternoon through Sunday with very limited computer access. So you may not hear from me again until the 13th. (I really have to buy a PDA -- I'm eagerly anticipating the Google Android's release.) As always, I hope my CAAFlog colleagues will post away in my absence.

CAAF releases opinion in Czachorowski

Here's a link to CAAF's opinion in United States v. Czachorowski, __ M.J. ___, 07-0379/NA (C.A.A.F. July 9, 2008).

Judge Stucky, who wrote the opinion of the court, offers this helpful synopsis:

We granted Appellant's petition to determine whether the military judge abused his discretion when he admitted into evidence the victim's out-of-court statements accusing her father of indecent acts over a defense objection that admission violated Military Rule of Evidence (M.R.E.) 807 and the Sixth Amendment to the Constitution. We hold that, on the facts of this case, the military judge improperly admitted the testimony and, accordingly, reverse the decision of the United States Navy-Marine Corps Court of Criminal Appeals.

Id., slip op. at 2 (footnotes omitted).

Putting the brakes on Wheeler

A Friend o' CAAFlog has let us know that Code 46 has moved to withdraw its request in Wheeler to enlarge the Judge Advocate General of the Navy's time to certify the case. NMCCA's opinion in the case apparently will now become final. See United States v. Wheeler, 66 M.J. 590 (N-M. Ct. Crim. App. 2008).

CAAF grants review of Article 32 waiver issue

Yesterday, CAAF granted review and ordered briefing on "WHETHER THE MILITARY JUDGE ERRED WHEN HE HELD APPELLANT'S WAIVER OF HIS ARTICLE 32 RIGHTS FOR HIS 20 SEPTEMBER 2001 COURT-MARTIAL APPLIED TO HIS 23 OCTOBER 2006 REHEARING." United States v. Von Bergen, __ M.J. ___, No. 03-0629/AF (C.A.A.F. July 7, 2008). AFCCA's opinion in the case is available here. United States v. Von Bergen, No. ACM 348174 (f rev) (A.F. Ct. Crim. App. Jan. 9, 2008) (per curiam).

CAAF orders further proceedings on Grostefon issue

On Thursday, CAAF granted a petition and ordered further proceedings to explore a Grostefon IAC issue. United States v. Corum, __ M.J. ___, No. 08-0474/AR (C.A.A.F. July 3, 2008) (summary disposition). CAAF granted review "on the following issue personally raised by Appellant":

WHETHER APPELLANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL WHERE HE DESIRED TO PRESENT INFORMATION CONCERNING HIS MENTAL HEALTH DURING HIS UNSWORN STATEMENT BUT HIS TRIAL DEFENSE COUNSEL ALLEGEDLY REFUSED TO PERMIT HIM TO DO SO. SEE UNITED STATES v. DOBRAVA, 64 M.J. 503 (A. Ct. Crim. App. 2006).

CAAF remanded the case to ACCA "to obtain an affidavit from trial defense counsel that responds to Appellant's allegation of ineffective assistance of counsel" and to consider the issue. Id.

Ask and ye shall receive?

Here's a link to Code 46's second request to enlarge the Judge Advocate General of the Navy's time to file a certificate of review in United States v. Wheeler, No. 08-5007/NA. Do our readers think it satisfies CAAF's condition that "absent extraordinary circumstances, no further extension of time [beyond 1 July 2008] will be granted in this case"? United States v. Wheeler, __ M.J. ___, No. 08-5007/NA (C.A.A.F. June 23, 2008).

Walker's central holding

The central holding in NMCCA's decision setting aside the death sentence in United States v. Walker, No. NMCCA 9501607 (N-M. Ct. Crim. App. July 8, 2008), is that the military judge abused his discretion by denying a defense request for a continuance to give a substitute expert witness an adequate opportunity to prepare his testimony.

At trial, the defense's original expert on intoxication essentially attempted to extort a favor from the trial defense counsel by suggesting that he would provide bland testimony if the DC didn't help him out or provide compelling testimony if he did. (The witness, who was a Navy commander, was later court-martialed himself.) The defense obtained a substitute expert, but he was given only 96 hours from his hiring to prepare his testimony. The defense sought additional time, but the military judge provided a one-word response: "Denied." In front of the members, the TC's cross-examination effectively highlighted the wealth of information that the expert hadn't considered in forming his opinion. Had the expert had more time, he likely would have reviewed some or all of the information that the TC demonstrated he hadn't considered.

Applying the 12-step analysis from United States v. Miller, 47 M.J. 352 (C.A.A.F. 1997), NMCCA held that the military judge abused his discretion by denying the defense continuance request. Quoting CAAF's opinion in United States v. Weisbeck, 50 M.J. 461, 466 (C.A.A.F. 1999), NMCCA observed that "[u]nreasonable and arbitrary insistence upon expeditiousness in the face of justifiable request for delay is an abuse of discretion." Walker, slip op. at 25 (internal quotation marks omitted). The court held that the error prejudiced the defense's ability to attempt to rebut the specific intent elements of two offenses of which LCpl Walker was convicted. NMCCA set aside a robbery conviction and the premeditation element of one of the two premeditated murder specs, set aside the sentence, and authorized a rehearing and a resentencing that could again result in the death penalty.

[DISCLAIMER: Three of the seven CAAFlog commentators, including me, served as appellate defense counsel for LCpl Walker.]

Wagner on 802 conferences

I hate R.C.M. 802 conferences. As a longtime appellate defense counsel, I view 802 conferences as a screen military judges use to hide potentially reversible errors from the appellate courts. When I was at the trial level in the military commission system, 8-5 conferences (the old commission system's counterpart to an 802 conference) were even worse. Commission defense counsel were litigating in a system where most of their clients understandably distrusted their lawyers who wore the same uniform as their captors. It seemed ludicrous to expect an accused not to worry when his defense counsel, the prosecutor, and the judge went off together behind closed doors. Yet some of the presiding officers would call for 8-5 conferences in the middle of the proceedings, leaving the accused at counsel table with just his chasers while all the military officers trotted off elsewhere to work something out.

If I were litigating a contested court-martial as a trial defense counsel, my default position would be to resist 802 conferences with all of my might. And Senior Judge Wagner's opinion for NMCCA in United States v. Walker, __ M.J. ___, No. NMCCA 9501607 (N-M. Ct. Crim. App. July 8, 2008), just gave me more arrows in my quiver with which to fend off 802 conferences.

Senior Judge Wagner's opinion bears close study, and not just for its result [refer to my earlier disclaimer]. The opinion takes on the fundamental issue of the defense's right to equal access to evidence and has important things to say about that right. But tonight I want to highlight the opinion's treatment of 802 conferences.

The opinion offers three bases for objecting to the use of 802 conferences: (1) interference with the accused's right to be present at the court-martial's proceedings; (2) interference with both the accused's and the public's right to a public trial; and (3) interference with preparation of a substantially verbatim record of trial.

Senior Judge Wagner emphasizes that a defendant has a right to be present at "any stage of the trial where the defendant's presence and participation would be meaningful." Id., slip op. at 52. Both the accused and the general public also have a right to a public trial, as guaranteed by R.C.M. 806, the Sixth Amendment, and the First Amendment. Id., slip op. at 53. Finally, 802 conferences raise a "thorny issue of whether the record of trial is complete and verbatim" without a transcript of the 802 conference. Id., slip op. at 54. While NMCCA declines to provide relief on this basis, it "roundly condemn[s]" the military judge's use of 802 conferences to engage in substantive discussion of motions. Id., slip op. at 57.

Walker sets out in great detail the problems with 802 conferences. A trial defense counsel who employs these objections may either dissuade the trial judge from using such conferences or provide the basis for appellate reversal if the trial judge isn't dissuaded. In any event, trial defense counsel should be extremely sensitive to the imperative, of which Senior Judge Wagner reminds us, of ensuring that your client is present for every substantive proceeding in his or her case.

NMCCA sets aside death sentence in Walker

NMCCA today released its published opinion in United States v. Walker, __ M.J. __, No. NMCCA 9501607 (N-M. Ct. Crim. App. July 8, 2008). The opinion sets aside the finding of guilty to the premeditation element for one of the two premeditated murder findings, sets aside a robbery conviction, and sets aside the death sentence. Retrial is authorized at which a death sentence can again be imposed. Here's a link.

[DISCLAIMER: The No Man, Super Grover, and I all served as appellate defense counsel in the case -- at one point, all at the same time.]

CAAF invalidates Army Reg's prohibition against certain staff corps' officers sitting on courts-martial

In United States v. Bartlett, __ M.J. ___, No. 07-0636/AR (C.A.A.F. July 7, 2008), CAAF invalidated a portion of Army Reg. 27-10 that apparently prohibited members of the Medical Corps, Medical Specialist Corps, Army Nurse Corps, Dental Corps, Chaplain Corps, and Veterinary Corps, as well as those detailed to Inspector General duty, from serving as court-martial members.

But CAAF held that the erroneous limitation on the discretion of the convening authority in selecting members of LTC Bartlett's panel was harmless.

More tonight.

To paraphrase Tina Turner, big Wheeler keep on turning

CAAF's online daily docket still hasn't been updated since 1 July. But here's what we know. On 9 June, Code 46 moved to extend the period for the Judge Advocate General of the Navy to file a certificate of review challenging 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 9, 2008). On 23 June, CAAF granted the request in part. In bold, underlined type, CAAF noted that it granted the enlargement "only up to and including July 1, 2008, and absent extraordinary circumstances, no further extension of time will be granted in this case." United States v. Wheeler, __ M.J. ___, No. 08-5007/NA (C.A.A.F. June 23, 2008).

An anonymous commentator to a recent post on Wheeler reports that "[t]he government asked for another 15day continuance to decide if they want to certify." Unfortunately, I don't know how Code 46 addressed CAAF's warning that only "extraordinary circumstances" would justify a further enlargement. I would be grateful to anyone who could e-mail me a scanned copy of Code 46's submission. (As always, you can reach me at caaflog@caaflog.com.)

Some individuals have been advancing the argument that because Article 67 of the UCMJ doesn't impose a time limit within which a Judge Advocate General can certify a case, there is no time limit. Under this argument, apparently a Judge Advocate General could still certify a Board of Review decision published in 1 C.M.R. The argument is, of course, rubbish. Article 144 of the UCMJ authorizes CAAF to "prescribe its rules of procedure." CAAF Rule 19(b), setting the time limits within which a Judge Advocate General may certify a case, is such a procedural rule.

If CAAF were to dismiss a certificate and the Solicitor General were to file a petition for certiorari challenging CAAF's authority to dismiss it, the time limit for doing so would be set by a Supreme Court rule. See 28 U.S.C. § 2101(g) ("The time for application for a writ of certiorari to review a decision of the United States Court of Appeals for the Armed Forces shall be as prescribed by rules of the Supreme Court."); see also S. Ct. R. 13.1. But, of course, the SG never would file such a cert petition because courts routinely set filing deadlines by rule and the Supreme Court wouldn't disturb this exercise of CAAF's delegated authority to prescribe procedural rules.

Don't bother trying to reach the No Man Monday morning . . .

. . . he'll be busy reading this recently published student-authored piece on the extension of court-martial jurisdiction over civilian contractors in contingency operations. Cara-Ann M. Hamaguchi. Recent Development, Between War and Peace: Exploring the Constitutionality of Subjecting Private Civilian Contractors to the Uniform Code of Military Justice During "Contingency Operations", 86 N.C. L. Rev. 1047 (2008).

Ms. Hamaguchi concludes that the exercise of court-martial jurisdiction over civilian contractors in contingency operations will likely be upheld as constitutional:

[T]he section 552 amendment to 10 U.S.C. § 802(a)(10) faces major constitutional barriers but may nonetheless pass muster when applying the framework established in [Reid v. Covert, 354 U.S. 1 (1957)]. Undoubtedly, despite major improvements to the UCMJ and the greater rights it often affords, the remaining due process concerns regarding jury composition and military-specific offenses are extremely significant. Nevertheless, as dicta in Reid suggest, Congress's power under Article I, Section 8 may warrant application of the UCMJ in contingency operations. At the very least, it keeps the door open. Unlike 10 U.S.C. § 802(a)(11), which was found to be unconstitutional in Reid, the amendment to § 802(a)(10) is narrowly focused on declared wars and contingency operations, which fall under Congress's Article I, Section 8 authority. If the power to subject civilians accompanying the force to the UCMJ was inherent in Congress's authority to declare war prior to section 552, then it follows that Congress should be able to subject civilians to the UCMJ in war-like contingency operations without having to actually declare war. Section 552 aims to do just that.

Id. at 1065-66.

Recent note on Article 120

The Women's Rights Law Reporter recently published a note on rape in the military and the 2006 revisions to Article 120. Jessica L. Cornett, Note, The U.S. Military Responds to Rape: Will Recent Changes Be Enough?, 29 Women's Rights L. Rep. 99 (2008).

May Army Lawyer online

The May issue of the Army Lawyer went online here a couple of weeks ago, but I didn't have a chance to peruse it until this weekend. It includes one article of interest to military justice wonks: in a short piece about "golden rule" arguments, Judge Jaquith provides a primer on the rules governing both findings and sentencing arguments. COL Grant C. Jaquith, A View from the Bench: Apply the Golden Rule, But Don't Argue It, Army Law., May 2008, at 36. It appears to be pitched at a new TC or DC level, but it's a useful refresher for more experienced counsel as well.

An Article 62 timeline

In United States v. Pearson, the Navy-Marine Corps Court explained that "prosecution appeals are not particularly favored in the courts" because they "compete with speedy trial and double jeopardy protection as well as judicial impartiality and piecemeal appeal policies." 33 M.J. 777, 779 (N.M.C.M.R. 1991).

The government's appeal in Wuterich certainly appears to vindicate the Navy-Marine Corps Court's speedy trial concern.

Charges against SSgt Wuterich were referred on 27 December 2007. On 17 January 2008, the prosecution issued a subpoena to CBS News for outtakes of Scott Pelley's interview with SSgt Wuterich for 60 Minutes. On 22 February, the military judge quashed the subpoena and three days later the prosecution filed its notice of appeal. The case has now been on hold for longer than four months, with a final resolution of this issue nowhere in sight.

The government filed its notice of appeal with NMCCA on 17 March and then filed its actual appeal on 7 April. NMCCA granted the appeal on 20 June. United States v. Wuterich, __ M.J. ___, No. NMCCA 200800183 (N-M. Ct. Crim. App. June 20, 2008). While the defense had either 30 days to seek reconsideration in panel or en banc or 60 days to petition CAAF, it filed its petition with CAAF 10 days after NMCCA's ruling (which, because NMCCA issued its ruling on a Friday, was only the 6th business day after NMCCA's ruling). United States v. Wuterich, __ M.J. ___, No. 08-0681/MC (C.A.A.F. June 30, 2008).

Now one of three things will likely happen: (1) CAAF will grant SSgt Wuterich's petition and resolve the merits of the case by reversing NMCCA; (2) CAAF will grant SSgt Wuterich's petition and resolve the merits of the case by affirming NMCCA; or (3) CAAF will decline to review the issue.

Given the importance of the issues involved, one wouldn't expect CAAF to rush a decision on the merits if it follows options (1) or (2). If option (1) is the end result, then SSgt Wuterich's case will have been delayed for well more than half a year for no purpose. Worse still, even if he ultimately prevails on this Article 62 appeal, as a result of this litigation SSgt Wuterich may end up losing his two military defense counsel, both of whom are scheduled to retire on 1 August as reported by the Meridian Record-Journal here. 1 August is just one day after the government's answer to SSgt Wuterich's supplement will likely be due under the briefing schedule. See United States v. Wuterich, __ M.J. ___, No. 08-6006/MC (C.A.A.F. July 1, 2008).

If either option (2) or (3) results, a final resolution is even further away. Remember that NMCCA didn't order CBS to actually produce the outtakes. Rather, it ordered more factfinding. Here's the relevant portion of NMCCA's decretal paragraph:

Prior to ruling on the CBS motion to quash, we direct the military judge to conduct additional fact-finding to (1) fully develop the record on the contents of the audio-video material, including an in camera review of any material over which CBS asserts privilege; (2) if, based on the facts developed, a determination is made that undisclosed audio-video material is relevant and necessary, the military judge will then develop the factual and legal basis for any CBS refusal to comply with the federal subpoena issued to obtain the material; and (3) taking into consideration protective measures available to the military judge, address whether, and to what extent, any asserted "news-gathering" privilege applies to limit or preclude disclosure of necessary evidentiary audio-video material in this case.

Wuterich, No. NMCCA 200800183, slip op. at 10-11. If NMCCA's opinion is ultimately affirmed, those additional factfinding proceedings will likely be lengthy. If they are again resolved in CBS's favor, will the government file yet another Article 62 appeal, using NMCCA's first Wuterich opinion to establish the appellate jurisdiction necessary to do so? And if the issue is resolved against CBS, does anyone think that CBS will simply hand over the materials to the prosecution? Doesn't it seem more likely that CBS will seek an order from an Article III court to trump any ruling against it? Doesn't it seem quite possible that CBS will obtain an injunction blocking any obligation to cough up the outtakes while the Article III proceedings are underway? And doesn't it seem possible that if NMCCA's opinion is upheld at CAAF, CBS will seek such an injunction before it's required to even give the outtakes to the military judge for an in camera review?

It isn't difficult to envision the interlocutory proceedings in this case stretching out for months and months to come. In fact, it's difficult to imagine that they won't.

When you wish upon a third star

We have long supported a third star for each of the Judge Advocates General. Now our wish for three third stars is well on its way to being granted.

Over the past week, the Kabul Klipper has become a third star information clearinghouse. He noted here that the President has nominated Rear Admiral MacDonald for a third star and here that the President has nominated Major General Rives for a third star.

Amidst the soggy remains of last night's fireworks here at Casa CAAFlog, I was left wondering, "What about General Black?" Fortunately, a Friend o' CAAFlog has called my attention to this Air Force Times piece from yesterday reporting that "Army judge advocate general Maj. Gen. Scott C. Black is also expected to be nominated soon for his third star."

Whither Wheeler?

We previously noted that CAAF enlarged the Judge Advocate General of the Navy's deadline for filing a certificate of review to challenge United States v. Wheeler, 66 M.J. 590 (N-M. Ct. Crim. App. 2008), until 1 July. United States v. Wheeler, __ M.J. ___, No. 08-5007/NA (C.A.A.F. June 23, 2008). (We previously discussed NMCCA's opinion in Wheeler, which held Military Rule of Evidence 707 unconstitutional as applied, here.)

CAAF's daily journal for 1 July is online; it doesn't note the filing of a certificate in Wheeler. Does that indicate that the Judge Advocate General of the Navy declined to certify Wheeler? Can someone with definitive knowledge let us know? (As always, if you don't want to post below, you can e-mail us at caaflog@caaflog.com.)

QP from Moorefield cert petition

We previously noted the cert petition seeking review of United States v. Moorefield, 66 M.J. 170 (C.A.A.F. 2008) (per curiam).

Here's the QP from the cert petition: "Whether a former judge who presided over the criminal trial of a defendant may later prosecute the same defendant?"

Air Force JAG nominated for third star

Major General Rives was nominated for the grade of lieutenant general by the President, according to a Pentagon press release dated July 3.

Independence Day Thoughts

For those actually checking CAAFlog on Independence Day, we hope you have a safe day. Not a lot of MilJus news today. To be honest, after last week's dust up created by CAAFlog's Kennedy v. Louisiana revelation, he deserves the weekend off.

Oops, I was mistakenly signed in as CAAFlog.

No Man

Another military cert petition

The Supremes have docketed a cert petition in Moorefield v. United States, No. 08-19. CAAF's decision in the case rejected a challenge to the impartiality of the staff judge advocate who provided the post-trial recommendation because he had presided over a previous court-martial of Sgt Moorefield. United States v. Moorefield, 66 M.J. 170 (C.A.A.F. 2008) (per curiam). We took a brief look at the Moorefield opinion here.

On the cert petition, Sgt Moorefield is represented by Darrin W.S. MacKinnon, Esq. If anyone has the QP, could you please pass it along? You can post it below or e-mail it to us at caaflog@caaflog.com.

DOJ notes possibility that Kennedy v. Louisiana doesn't apply to courts-martial

Thursday's NYT has this piece by Linda Greenhouse following up on her article in today's NYT about Kennedy v. Louisiana's failure to note that the National Defense Authorization Act for Fiscal Year 2006 allowed courts-martial to adjudge death for the rape of a child.

Thursday's article reports that DOJ "acknowledged on Wednesday that government lawyers should have known that Congress had recently made the rape of a child a capital offense in the military and should have informed the Supreme Court of that fact" while the Supremes were considering Kennedy v. Louisiana.

But here's the part of the article most important for we military justice wonks:

The Justice Department statement was carefully worded to avoid conceding that under the reasoning of the Supreme Court decision, the military death penalty provision for child rape is now unconstitutional.

The statement noted that in a 1996 decision, Loving v. United States, which upheld the military's general death penalty provision, the justices simply assumed, without deciding, that the court's death penalty jurisprudence was fully applicable to the military. Since no death penalty prosecution has been brought since the military provision took effect, it is not clear how or when its constitutionality may be tested.

Pre-Kennedy, military appellate courts consistently side-stepped the question of whether, despite Coker v. Georgia, 433 U.S. 584 (1977), a court-martial could adjudge a death sentence for rape. See, e.g., United States v. Stebbins, 61 M.J. 366, 368 (C.A.A.F. 2005) (holding that LWOP is an authorized punishment for rape regardless of Coker's applicability); United States v. Straight, 42 M.J. 244 (C.A.A.F. 1995) (holding that the propriety of a capital referral in a rape/attempted murder case was waived by defense counsel's failure to make a constitutional challenge to the capital referral); United States v. Gonzales, 46 M.J. 667 (N-M. Ct. Crim. App. 1997) (declining to resolve whether the military's death penalty for rape is constitutionally permissible in light of Coker), aff'd, 51 M.J. 306 (C.A.A.F. 1999).

BREAKING NEWS: ACCA issues published opinion in Abu Ghraib case

In another published opinion authored by Judge Maggs, ACCA tweaked the findings and affirmed the sentence of Specialist Sabrina Harman, who was convicted of maltreating detainees and failing to stop other Soldiers from maltreating detainees, as well as a related conspiracy, while she served as an MP at Abu Ghraib. United States v. Harman, __ M.J. ___, No. ARMY 20050597 (A. Ct. Crim. App. June 30, 2008). (While the opinion is dated 30 June, it appears to have been uploaded onto ACCA's web site today.)

The prosecution provided the defense and members with a nine-paragraph bill of particulars. The military judge had the members reach a verdict on the bill of particulars, which resulted in findings of guilty to seven of its nine paragraphs. ACCA held that the military judge erred by "requir[ing] the panel to make findings on the bill of particulars," rather than on the relevant specification. Id., slip op. at 5. This produced an irregular verdict in which the members excepted language from the bill of particulars that wasn't actually in the specification. ACCA made some minor revisions to the relevant specification to remedy the errors.

ACCA also rejected legal and factual sufficiency challenges to the convictions. Id., slip op. at 6-13.

Finally, ACCA upheld the military judge's denial of a challenge for cause against a command sergeant major. Id., slip op. at 13-15. In rejecting an implied bias challenge, ACCA concluded, "A member of the public would not believe that a senior non-commissioned officer, like CMS LP, who said she could be objective, would in fact be biased or would serve unfairly merely because she had seen or heard news stories about matters relating to appellant's case." Id., slip op. at 14-15.

CAAF grants review to test CCAs' corrective powers

CAAF has granted review of two issues that test how far a CCA can go in denying relief after finding or assuming error. In United States v. Thompson, __ M.J. ___, No. 08-0334/MC (C.A.A.F. July 1, 2008), CAAF granted review of these issues:

WHETHER THE LOWER COURT ERRED IN HOLDING THAT, EVEN IF THE MILITARY JUDGE ERRED IN DENYING THE DEFENSE MOTION TO SUPPRESS APPELLANT'S CONFESSION TO INVESTIGATOR AR, THE ERROR WAS HARMLESS BEYOND A REASONABLE DOUBT.

WHETHER THE LOWER COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT BY SUBSTITUTING ITS FINDING OF GUILT TO RECKLESS ENDANGERMENT UNDER ARTICLE 134, UCMJ, FOR THE COURT-MARTIAL'S FINDING OF GUILT AS TO THE OFFENSE OF KIDNAPPING AS PLED UNDER CHARGE V, SPECIFICATION 2.

NMCCA's unpublished decision in the case is available here. United States v. Thompson, No. NMCCA 200600807 (N-M. Ct. Crim. App. Dec. 11, 2007).

Among the several offenses of which Pvt Thompson was convicted was kidnapping his wife. NMCCA set aside the kidnapping conviction. The alleged kidnapping was a stand-alone offense, arising out of an argument between Thompson and his wife. It was followed by a rapproachment. During the argument, Thompson got into his car and sped off with his wife apparently partly in and partly out of the car. Witnesses' accounts differed over whether Thompson pulled his wife into the car before speeding off. NMCCA held that the evidence did not prove beyond a reasonable doubt "that the appellant's alleged carrying away of his wife was more than a momentary detention," thus failing to satisfy kidnapping's elements. Id., slip op. at 6.

But while setting aside the kidnapping conviction on both legal and factual insufficiency grounds, NMCCA nevertheless literally rewrote the specification and found him guilty of reckless endangerment instead. See id., slip op. at 10. The Manual for Courts-Martial did not list reckless endangerment as a lesser-included offense of kidnapping; rather, the only listed kidnapping LIO was attempt. Manual for Courts-Martial, United States at Pt. IV, ¶ 92.d (2005 ed.). Nevertheless, NMCCA maintained that because "the elements for Article 134 offenses of kidnapping and reckless endangerment both prohibit conduct that is either prejudicial to good order and discipline or is service discrediting, we finding that the appellant was clearly on notice of the crime he needed to defend against at trial." Thompson, slip op. at 8. This seems to hold that because kidnapping and reckless endangerment share one element, it doesn't matter that each has three unique elements not found in the other; the overlap of the one element was sufficient to put the defense on notice to defend against the apparently uncharged offense of reckless endangerment. If I am correctly divining the nature of the issue from NMCCA's slip opinion, then it's little wonder that CAAF granted review on Issue II. (NMCCA did provide meaningful sentence relief though, knocking two years off the approved confinement and reducing the adjudged and approved DD to a BCD.)

As to Issue I, NMCCA assumed without deciding that a CID agent violated the Fifth Amendment in obtaining Pvt Thompson's confession. Id., slip op. at 9. But "because none of the admissions made by the appellant in his confession relate to any of the offenses of which the members found him guilty, we finding that the admission of appellant's confession of 7 February 2005 was harmless error beyond a reasonable doubt." Id., slip op. at 10.