Tuesday, July 15, 2008

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.


John O'Connor said...

Looks like I win the "contest" -- off by three days.

Anonymous said...

This is a classic example of how "framing" an issue determines the answer. Judge Baker says in his dissent:

The question is:

Does the right to free speech enshrined in the First Amendment extend to a soldier who makes racist, service discrediting statements in a public manner while holding himself out as a member of the armed forces?

The question is not:

Does a soldier have a constitutional right to make racist, unpopular, or distasteful statements in private to his comrades, or when not in uniform or otherwise holding himself out as a member of the armed forces?

But, actually, I think question 2 is a fairer portrayal of what happened. I think the majority correctly asked and answered question 2, and ignored the loaded categorical question that Judge Baker preferred.

Anonymous said...

Typo on first page of Judge Baker's dissent - "rationale" should be "rational." Who's responsible for editing these things? If the court wants to be thought of as equal to circuit courts of appeal, this ain't gonna help.

Anonymous said...

A spelling mistake is better than missing the entire UCMJ as Justice Kennedy did.

Anonymous said...

The judges each have their own staff, and it is his or her work product. Whose responsibility do you think it should be? How about -- the judge's?

Anonymous said...

It's unclear to me what Anon #2 is talking about since it doesn't say "rationale" on the first page of Judge Baker's dissent. In any case, lets add this quote to the list of now infamous Bakerisms this term:

"There are at least five buoys that might help to mark the constitutional channel through the otherwise perilous shoal that skirts the boundary between free speech and national security."

Can anyone spell "trite" and "contrived"? Obviously, no one is to blame for that sentence but the Judge himself.

Anonymous said...

All I can say is dolly sods. 'Nuff said.

Anonymous said...

I too am very "dubitante" about Anon #2 claims. And as a wise man once said, "As with the trees at Dolly Sods, the wind only blows in one direction."

Anonymous said...

For the apparent mouth-breathers on here:

1) Click link to opinion in original post.

2) Scroll down to J. Baker's dissent.

3) Observe fifth line from bottom on first page in this PDF document - see "rationale"

I hope you are not military practitioners - Lord knows our critics don't need more ammo to assault our "dolt" status...

John said...

Both "rational" and "rationale" are used in both opinions, so pointing to the fact the word is used isn't helpful. The key is using them correctly. "Rational" can either be a noun or adjective, depending on its usage, but in this forum it should almost always be an adjective. "Rationale" is only a noun.

Stated another way, a Judge should be a "rational" trier of fact. A judge has a "rationale" for her opinion.

Judge Ryan correctly uses "rationale" on page 25, Judge Baker utilizes it incorrectly on page 28.

And, of course, the fact that an editor exists does not exculpate the Judge whose name is on the opinion. If we're going to assign blame for something this petty, at least lets assign it to the correct person -- the author.

That said, wouldn't we all be better off analyzing the merits of the opinions?

Anonymous said...

The military mind is famous for concentrating on such trivia: irish pennants, a strand of hair on the ear, ID card in the correct pocket, and now, the battle "e" in rationale. I think its irrational. No, posters cannot comment intelligently on the opinion or the dissent. They are military lawyers. So, instead, we get the pretentious correction of a schoolmarm, which would be far more credible and enjoyable if it were an aside in an otherwise substantive post. But, instead, the critique was the main dish. Thanks. I enjoyed our solider's emails more than your inane post. I was hoping for some commentary on CAAF's first free speech opinion in several years. The only post that is missing is the inevitable: "CAAF supports racist speech!"

Anonymous said...

No, John, we wouldn't be better off whistling past the channel markers and ignoring this gaffe. This is a federal court of appeals - act like it! Don't overlook the easy stuff... like editing grammar. If you can't get the small stuff right, I don't trust you with the big stuff...

Anonymous said...

You are right, but need to get over yourself. The gaffe must be put in perspective.

So if I point out the grammatical mistakes in the Bible, we all go to hell? If I point out the grammatical mistakes in the Constitution, we all lose our liberty?

My only point is not to lose sight of the forest for the trees.

I don't think we should hang Judg Bakr for his gaff in loving the "e"

Its a very loveable letter. Look at it: "e" Say it: "e" It is adorable. I think that it even sponsored Sesame Street a few times.

Anonymous said...

Baker's dissent could have ended at the top of page 3. He had made his two points. The rest simply turned him into a rambling man.

Anonymous said...

A stray "e" in a 30 page opinion hardly seems worthy of alarm, or even comment. All courts usually have to make some corrections to their opinions prior to final publication, even the Supreme Court and the "esteemed" circuit courts of appeal. It's quite routine. I believe that's what the disclaimer on the first page is for. Now on to substance...

Anonymous said...

Is this a First Amendment case dealing with Article 134 or an Article 134 case that happens to deal with speech?

It seems that the case is better viewed as a 134 case. The majority opinion retreads ground covered long ago on the speech point (with the small exception of extending the prior cases to clause 2), but I think the real battle here is over what one has to prove with respect to the second element of a 134 offense. It has long been my impression that the reality in a 134 case is that the government need only prove the act, the service discrediting or good order and discipline element was a throwaway. Judge Ryan seems to be trying to bring it back, Judge Baker would rather ignore Winship and the due process concerns attendant with any discussion of what the elements of a crime are.

Moreover, Judge Baker seems to confuse several points. First he has no problem with the idea that the private conversations are in fact private, then he says they can be used as evidence under a service discrediting theory - a theory based entirely on public perception. Which is it?

Second, what evidence, exactly, in the record leads to inference that the speech had a reasonable direct chance of discrediting the military? All the evidence Judge Baker points to proves element 1, but in no way does it logically follow that the same evidence proves element 2. The mere fact that any trier of fact would find that these were racist words is not the same thing as any trier of fact finding that the same words were service discrediting in the specific context they were used.

It seems that Judge Baker made up his mind that the speech was repugnant and then set about finding a way of making it illegal. In this case it yields a palatable result, what about when the viewpoint is different? What if a servicemember who is an evangelicals talks about their faith in a public forum and happens to mention they are soldiers? Religion can certainly be as divisive, if not more so, than race. Is that next? And a cite to Goldman in no way supports his argument. There are miles (nautical miles, since we're talking about buoys) between an administrative action essentially firing a servicememeber like in Goldman and a criminal conviction. The standards applied in those cases can't possibly be the same.

The only way 134 doesn't run headlong into a constitutional thwacking is to be read as requiring a fairly explicit nexus between the military and the speech. Admittedly, that's going to be much more difficult in a clause 2 case than a clause 1, but that's the prosecutor's problem, not the appellate court's.

Finally, Judge Baker's strict scrutiny analysis is a tad light on citation, perhaps because it's never been applied in this context and he's making it up. Or maybe its because it wasn't argued and it's the duty of the government to prove the law satisfies strict scrutiny, rather than for a judge to make up reasons why it doesn't after the fact. Either way, it adds nothing. Moreover, you can't apply strict scrutiny to 134 because 134 is amorphous. A law either survives strict scrutiny or it doesn’t, it isn't a case by case analysis.

No Man said...

I think FN 7 will ensure (if Trial Counsel's have even half the brain of the Scarecrow) that Wilcox is short lived and Judge Baker has his day in the sun to say I told you so:

7 For example, if the Government had introduced evidence focused
on the service discrediting nature of the conduct, such as the
extra-record material described by the dissent, see __ M.J. __
(21-25) (Baker, J., dissenting), this would be a very different

Anonymous said...

I must also be a dolt because I didn't notice the "e" thing. The same can't be said for the "perilous shoal that skirts the boundary" quote on page 14. The "e" can be easily corrected but unfortunately that horrible quote will be with us for all eternity.

dreadnaught said...

The decision section contains a strange disclaimer: "whether this Court approves of the statements made by the Appellant. We do not." Is this necessary? Looking back to Quintanilla, there was no caveat about the court giving its approval to the premeditated murder of executive officers.

Also, it is mentioned in the opinion that Appellant had posted racist views on websites but these posts were not allowed into evidence because the MJ sustained the TDC's hearsay objection. Why would these posts, which one would assume contained screeds about the need for racial purity and white supremacy, have been offered for the truth of the matter asserted? If anyone has more info on this issue it would be interesting to hear about it.

John O'Connor said...

I think this is a difficult case, and I keep going back and forth as to which opinion is right. The conduct itself seems to be clearly service discrediting "if anyone knows about it." But I'm conflicted on how that applies in these circumstances, where the communications were, for the most part, intended to be private communications with someone the accused reasonably believed would support the statements.

I do think that the main takeaway of this case is the apparent need to introduce evidence of impact on good order and discipline or service discrediting nature. I always viewed that as something that didn't need independent proof but which the members could find by considering the facts surrounding the case.

As No Man's post hints, the majority opinion might not be a positive development for accuseds. I can imagine TCs seeking to put in all kinds of prejudicial sentencing-type evidence at the findings stage and then responding to an objection by holding up this case and saying "I have to prove the conduct was service-discrediting." And they will be right, at least to some degree.

On Dreadnaught's question, I also was puzzled by how the Internet traffic got excluded on hearsay grounds. I think sustaining that objection would be pretty clearly erroneous, but CAAF was right to say that it couldn't consider that "evidence" because, erroneous or not, it really wasn't evidence in the case.

Anonymous said...

One of the big problems with juxtaposing privacy and service discredit is the chicken and egg problem: which do you look at first?

Privacy entails those acts that are not meant, and should not be, perceived by the public or the service in the first place. If you start there, then you never really get to service discredit.

For example, swearing obsenities in one's own house; crazy-wild sex; blogging and ridiculing military judges; attending a mosque where the attendants hate America; having an abortion, etc. All of these are private and/or protected activities. If a government agent "outs" the activity, there is a bit of "contriubutory negligence," that is, the government publishing the very harm it piously claims to be trying to prevent. So, for example, if I find out that one of my male military colleagues is Muslim, does not support our current wars, and attends a mosque that preaches against America - his behavior is prejuducial to good order and discipline - far more than a gay soldier or a racist one. Likewise, sorry ladies, but if I find out that a female colleague has an abortion, her right, my morale, and if the unit knows, good order and discipline goes down, too.

But, if one starts with Art 134, and looks through that lense first, then there is no privacy or other protected rights (not really - and people will just invent artificial lines separating the private).

Anonymous said...

Thanks Anon #13. Now I can't get the lyrics to Ramblin' Man by the Allman Brothers Band out of my head.

"Lord, I was born a ramblin' man,
Tryin to make a livin and doin' the best I can..."

egn said...

I don't think you can hang your hat on whether or not the actions taken were meant to be private, or the fact that the accused was speaking to an audience he believed to be sympathetic, in making the determination of whether the element of service discrediting has been met.

Like it or not, servicemembers are convicted all the time for behavior which is private, but "if known to others," would be service discrediting. Take for example, the viewing of child pornography in the "privacy" of your own home on your personal computer (or PC, as the kids call it these days). Military courts, all the way up to CAAF, have had no problem at all in upholding such convictions under Article 134 as service discrediting.

If the majority is trying to bring back the substance of that element, it may want to be mindful of the other "private" conduct that might no longer violate Article 134. CAAF could very well find itself writing disclaimers about how it doesn't approve of/condone/endorse the child pornography viewed by an appellant.

john said...


Looks like the court is already headed in that direction. This is a granted issue for next term --


United States v. Brown, __ M.J. ___, No. 08-0260/AF (C.A.A.F. June 17, 2008). AFFCA's decision in the case is here. United States v. Brown, No. ACM 36695 (A.F. Ct. Crim. App. Nov. 16, 2007) (per curiam).

Anonymous said...

Anon #14, thanks for your stellar contribution. Its easy to criticize rules of law, but difficult to generate them. But I guess you are stoned on the Allman Brothers...who would all be in jail, along with their listeners, under your favorite schools of jurisprudence.

Re: the child pornography analogy. Its Nonsense. Child pornography is an exception to the usual rules of law. The "crush the industry" standard that the Supreme Court established in this field is well outside the mainstream and provides no analytical leverage.

The "if known to others" standard is precisely the problem. Everything that is private is discrediting "if know to others." Defecating, urinating, masturbating, fornicating...everything you can think of that ends with an "ing."

So again, my simple premise: If you start with a genuine privacy right, you never really get to service discredit.

Anonymous said...

egn, CAAF is being dragged into this area of law by the Supreme Court and O'Connor. The "virtual image" issue is the only area that gets any scrutiny. And its almost silly at this point.

Every year, the Supreme Court takes at least 3 First Amendment cases, and keeps this area of the law razor sharp. In contrast, CAAF goes years at a time with nary a word on the subject, usually avoids the issue, and CAAF's analytical knife is very dull regarding First Amendment law.

Anonymous said...

I really love all the Allman Brothers references but is it possible to get "stoned on" a band?

egn said...

Thanks, John 06:56 -- I obviously haven't been reading the Daily Journal. Like all proper slackers, I rely on my favorite blogs to filter current events to me via defense-tinted glasses.

Anonymous said...

Yes, it is not only possible to get "stoned on" a band, it is necessary. But, in context, the phrase obviously refers to getting stoned while listening to the band's music. Favorites for this type of service discrediting behavior include Steely Dan, Pink Floyd, the Doors, Enya, etc.