Acting SG vs. JAJG cont'

In West's United States Code Annotated, the notes following 28 U.S.C. § 509 set out the Executive Orders establishing the Federal Legal Council. That Council is "composed of the Attorney General and the representatives of not more than 16 other agencies." The Executive Orders establishing the Council provide, "Whenever two or more Executive agencies are unable to resolve a legal dispute between them, including the question of which has jurisdiction to administer a particular program or to regulate a particular activity, each agency is encouraged to submit the dispute to the Attorney General." The Executive Orders also lay out a procedure for resolving inter-agency legal disputes: "Whenever two or more Executive agencies whose heads serve at the pleasure of the President are unable to resolve such a legal dispute, the agencies shall submit the dispute to the Attorney General prior to proceeding in any court, except where there is specific statutory vesting of responsibility for a resolution elsewhere."

When he was the Assistant Attorney General for the Office of Legal Counsel, Theodore Olson discussed the Federal Legal Council and observed:

[T]o permit [one executive agency or department] to appear in a judicial proceeding in which the United States has exercised its authority to appear as a party (or has otherwise presented its views, e.g., as an amicus), and present views on its own behalf which are independent of or contrary to those presented by the United States, would be inconsistent with the integrity of the Executive in the exercise of his Article II powers and responsibilities. Such a circumstance would, literally, put the Executive in the untenable position of speaking with two conflicting voices, abdicating his constitutional responsibility to "take Care that the Laws [are] faithfully executed."

Litigation Authority of the Equal Opportunity Commission in Title VII Suits Against State and Local Governmental Entities, 7 Op. O.L.C. 47, 65 (1983) (third alteration in the original).

In light of the Executive Orders establishing the Federal Legal Council and the OLC Opinion, was it proper for various military appellate government divisions to simultaneously advocate directly opposite positions regarding CAAF's jurisdiction to hear an appeal of a CCA's ruling on an Article 62 appeal?

In light of the view that the Executive Branch must speak with one voice, should CAAF abandon its longstanding practice of inviting (or even accepting) amicus briefs from all of the appellate government divisions when some particularly important legal issue arises? Isn't the result of such an invitation multiple submissions from a single party (the United States), none of which should adopt a divergent position from another?

Acting SG sides with Code 46 and GAD against JAJG

There is considerable discussion below about the extent to which the Acting SG's cert petition in Denedo was coordinated among the services. Anonymous posters claiming to be involved in the process (we cant' really know, can we?) tell us that there was considerable coordination. (I wish they would also tell us why the Supremes have jurisdiction, but they haven't done that yet.)

Here's what I find interesting. As we discussed some time ago, the Navy-Marine Corps Appellate Government Division (Code 46) and the Army Government Appellate Division (GAD) took the position in Lopez de Victoria and Michael that CAAF had no jurisdiction to review a CCA's ruling on an Article 62 appeal while the Air Force Government Trial & Appellate Counsel Division (JAJG) took the position in Miller and Webb that CAAF did have such jurisdiction. [DISCLAIMER: I was an appellate defense counsel in Miller.] As explained by the appellees in both Miller (before I was one of his counsel) and Webb, taking such an inconsistent position on behalf of the United States actually appears to have been impermissible; differences in litigation positions between various departments and agencies are supposed to be resolved internally rather than flaunted for all to see. Interestingly, in the Denedo cert petition, the Acting SG adopts the position of Code 46 and GAD while rejecting the position of JAJG.

In the Denedo cert petition, the Acting SG writes: "The decision below represents the latest iteration of [CAAF's] efforts to expand its role beyond its congressionally prescribed jurisdiction to 'review * * * specified sentences imposed by courts-martial.' Goldsmith, 526 U.S. at 534." The very first example the cert petition offers of such extra-statutory expansion is United States v. Lopez de Victoria, 66 M.J. 67 (C.A.A.F. 2008).

July Army Lawyer now available

There's a new issue of the Army Lawyer out, which includes an article sure to make the No Man drool: Major Jeffrey S. Thurnher, Drowning in Blackwater: How Weak Accountability over Private Security Contractors Significantly Undermines Counterinsurgency Efforts, Army Law., July 2008, at 64. Here's a link.

More milk cartons?

Can anyone else access CGCCA opinions? I sure can't.

Airing of grievances

A crucial part of Festivus is the airing of grievances. It seems that the Acting SG has been saving up some of his grievances toward CAAF. At the end of a hard-hitting cert petition that largely adopts and presents Judge Ryan's dissent from Denedo v. United States, 66 M.J. 114 (C.A.A.F. 2008), the Acting SG concludes by airing some of his pre-Denedo grievances:

The decision below represents the latest iteration of that court's efforts to expand its role beyond its congressionally prescribed jurisdiction to "review * * * specified sentences imposed by courts-martial." Goldsmith, 526 U.S. at 534; see, e.g., United States v. Lopez de Victoria, 66 M.J. 67 (C.A.A.F. 2008) (permitting appeals to the CAAF from the decisions of the Courts of Criminal Appeals in interlocutory appeals by the government); United States v. Tamez, 63 M.J. 201 (C.A.A.F. 2006) (permitting extension, for "good cause," of the statutory deadline for filing appeals to the CAAF); Loving v. United States, 62 M.J. 235 (C.A.A.F. 2005) (asserting jurisdiction under the All Writs Act to entertain petitions for habeas corpus after there is a final judgment); Kreutzer v. United States, 60 M.J. 453 (C.A.A.F. 2005) (employing All Writs Act to regulate defendant's place of confinement); Goldsmith v. Clinton, 48 M.J. 84 (C.A.A.F. 1998) (employing All Writs Act to enjoin the government from administratively discharging Air Force Officer), rev’d, 526 U.S. 529 (1999). This Court's intervention is warranted, once again, in order to confine the CAAF to its statutory jurisdiction.

Disappointing statement of jurisdiction

Personally, I would like to see the Supreme Court review the issue of whether military appellate courts can issue extraordinary relief in cases like Denedo. That said, I don't believe that Denedo itself, in its current procedural posture, provides a vehicle for doing so. I was looking forward to reading the Acting Solicitor General's analysis of why the case falls within the Supremes' cert jurisdiction. Unfortunately, that "analysis" was limited to a single unenlightening sentence.

The Acting SG's cert petition in Denedo declares, "The jurisdiction of this Court is invoked under 28 U.S.C. 1259(4)." That's it. It tells us nothing about why this case falls within § 1259(4). Under that statutory provision, "[d]ecisions of the United States Court of Appeals for the Armed Forces may be reviewed by the Supreme Court by writ of certiorari in . . . [c]ases . . . in which the Court of Appeals for the Armed Forces granted relief."

In Denedo, CAAF's decretal paragraph "remand[ed] Appellant's petition to the United States Navy-Marine Corps Court of Criminal Appeals for further proceedings . . . . If prejudice is found, the court shall determine whether the requested relief should be granted." Denedo v. United States, 66 M.J. 114, 130 (C.A.A.F. 2008). To me, that doesn't look like a grant of relief. On the contrary, on its face it reserves judgment as to whether relief will ultimately be granted. But even if you disagree with me on that point, I hope you will at least agree that it isn't obvious that CAAF's decision falls within § 1259(4)'s scope. So why didn't the Acting SG set out why the Supremes should conclude that CAAF granted relief for purposes of § 1259(4)? And what should he have said if he had addressed that issue?

BREAKING NEWS: Acting SG's cert petition in United States v. Denedo

Here's a link to the cert petition that the United States filed today challenging CAAF's ruling in Denedo v. United States, 66 M.J. 114 (C.A.A.F. 2008). Here's the QP:

Whether an Article I military appellate court has jurisdiction to entertain a petition for a writ of error coram nobis filed by a former service member to review a court-martial conviction that has become final under the Uniform Code of Military Justice, 10 U.S.C. 801 et seq.

Civilian jury acquits former Marine of committing war crimes

The press is reporting that a civilian jury in a federal district court in Riverside, California has acquitted Jose Luis Nazzaro of charges that he committed war crimes in Falluja. Here's a link to the Reuters report on the verdict.

Stevenson reply brief

Here's a link to LCDR Eric Eversole's reply to the Acting SG's opposition to the cert petition in Stevenson v. United States, No. 07-1397.

Iraqi Detainee Abuse Investigations on the Rise?

I ended the title of this post with a question mark because all I ever see are news reports about courts-martial, I don't claim to have any inside information about the recent number of detainee cases. But, my mass media informed perspective is that we have recently seen a rise in the number of pre-trial investigations and courts-martial based on detainee abuse/deaths in Iraq. I have absolutely no idea why we have seen a rise. Causes could be anything, maybe a statistical anomaly, an increased number of incidents, or more aggressive investigation and prosecution. Maybe we can get CAAFlog's resident Moneyball addict to run a WWBJ series on this issue.

The Army Times, and others, reported yesterday that an Art. 32 investigation into alleged detainee deaths in Iraq in 2007. According to reports, 3 non-commissioned officers (NCOs) allegedly killed at least 4 detainees near Baghdad in Spring 2007. The status of the NCO's cases wasn't exactly clear from the reports. The report focused on charges that were preferred against four other soldiers for alleged conspiracy, whose Art. 32 hearing wrapped up this week. Apparently Sgt. First Class Joseph P. Mayo and Sgt. Michael P. Leahy Jr., the platoon sergeant and squad leader, respectively, for Company D, First Battalion, Second Infantry, 172nd Infantry Brigade, signed confessions to the detainee killings. News reports of the incident have purportedly come from their confessions. Here is what the NYT had to say:

In March or April 2007, three noncommissioned United States Army officers, . . . killed four Iraqi prisoners with pistol shots to the head as the men stood handcuffed and blindfolded beside a Baghdad canal, two of the soldiers said in sworn statements. After the killings, the first sergeant — the senior non-commissioned officer of his Army company — told the other two to remove the men’s bloody blindfolds and plastic handcuffs . . .

We will continue to follow these cases and others we reported on earlier here (Sgts Weemer and Nelson Art. 32 hearing for detainee killings during the Battle for Fallujah in 2004), here (Army Art. 32 in Tikrit for Staff Sgt. Warner and 1st Lt Behenna accused in the 2008 killing of detainee Ali Mansur Mohamed), and here (Navy Art. 32, SCMs, and SPCMs for 2008 abuse at Camp Buca, Iraq). An update on the Weemer case, the North County Times reported that charges were referred against Weemer on Aug. 8, 2008.

Denedo predictions?

Friday is the Acting SG's deadline to submit a cert petition to the Supremes in Denedo, No. 07A1027. Do you think he'll file? My prediction is no due to a combination of the case's apparent failure to satisfy any of the four jurisdictional hooks under 28 U.S.C. § 1259 and ripeness concerns. Other predictions and (especially) insider knowledge are welcome in the comments section.

Deserter who fled to Canada sentenced

We previously noted litigation in Canadian courts over whether the Canadian government could deport U.S. military deserters to face trial by court-martial (it can). The case of the first such deserter to be returned to the U.S. apparently went to a court-marital on Friday, producing a sentence that included 15 months of confinement and a dishonorable discharge. Here's a link to the Globe & Mail's article about the case.

According to other media accounts, it seems that the military judge adjudged 30 months of confinement, but it was reduced to 15 months under a PTA.

If anyone has more information about the case, please let us know in the comments section.

NMCCA's Bush II opinion provides valuable post-trial delay litigation guidance and reveals a flaw in CAAF's Allende opinion

As we previously noted, NMCCA's new published opinion in United States v. Bush overturns a published panel decision, 66 M.J. 541, that had provided relief to PFC Bush for seven years of post-trial delay. The en banc court reversed the panel due to CAAF's opinion in United States v. Allende, 66 M.J. 142 (C.A.A.F. 2008). United States v. Bush, __ M.J. ___, No. NMCCA 200700137 (N-M. Ct. Crim. App. Aug. 19, 2008) (en banc), which came out the day after Bush I and totally undercut its reasoning. But, as Bush II demonstrates, Allende suffers from an analytic flaw. CAAF should grant review of Bush II and use it as a vehicle to correct its analytic mistake in Allende. (Indeed, this would even seem to be one of those cases in which the Judge Advocate General should certify the case to CAAF despite the government's victory at the CCA level.)

In Bush, more than six years passed between the CA's action and NMCCA's receipt of the record. So the first of the four Moreno/Barker v. Wingo factors -- unreasonable delay -- was a slam dunk. (Additional delay resulted because NMCCA found that the original post-trial processing was marred by error and remanded the case for a second CA's action.) NMCCA also found that the government's explanations were "inadequate to justify the delay," putting the second of the Moreno/Barker v. Wingo factors in PFC Bush's column as well. Where the opinion gets really interesting is NMCCA's analysis of the third and fourth factors.

For both the third and fourth factors (assertion of right/prejudice), the defense relied entirely on an uncorroborated, but quite specific, declaration from PFC Bush. For the third factor, PFC Bush stated that he repeatedly contacted his command and the Navy-Marine Corps Appellate Leave Activity (the unit to which all Marines and Sailors on appellate leave are transferred) inquiring about his case. NMCCA tells us, "The Government responds with no evidence beyond an assertion that the appellant’s claims are 'without supporting proof' and are 'unverified and speculative.'" Bush II, slip op. at 4. Au contraire, rules NMCCA. PFC Bush's claim is not "without supporting proof," as the government argues, because "the appellant's declaration is itself some evidence on the appellant's claim." Id. That declaration "identified particular Government offices he contacted about his case during a particular timeframe." Id. Quoting CAAF's opinion in United States v. Gosser, 64 M.J. 93, 98 (C.A.A.F. 2006), NMCCA finds that the declaration "offers 'adequate detail to give the Government a fair opportunity to rebut' the appellant's contention that he asserted his right to speedy post-trial review. The Government, undeniably in the best position to verify or refute the appellant's claims, has provided no evidence to the contrary." Bush II, slip op. at 4. NMCCA concluded that the demand "factor favors the appellant." Id.

But while the uncorroborated declaration was sufficient to meet the demand criterion, NMCCA was compelled by Allende to hold that it was insufficient to satisfy the prejudice criterion. PFC Bush's declaration explained that "three to four years after his trial, he was denied employment as a fork-lift operator by the Costco store in Huntsville, Alabama." Id. PFC Bush further explained that he had held an "identical job in a Costco store in California and that the reason he could not transfer his employment from California to Alabama was specifically because he lacked his final discharge papers (DD Form 214)." Id., slip op. at 4-5.

NMCCA notes that the government argues that "under Allende, an appellant's declaration or affidavit of prejudice, standing alone, will never be sufficient to meet his burden of proof no matter how detailed and specific it might be." Id., slip op. at 5. NMCCA disagrees, explaining: "To be adequately specific, a post-trial claim for relief must state specific facts, which, if true, entitle the appellant to the relief sought. As well, [a]ppellant must specifically identify how he would be prejudiced . . . due to the delay. Finally, a claim must be detailed enough to provide the Government a fair opportunity to rebut the contention asserted." Id. (quotation marks and internal footnotes omitted). The court also observes that the "burden is on the appellant to provide legally competent evidence demonstrating the prejudice asserted." Id., slip op. at 6.

NMCCA then summarizes the law of declaration corroboration post-Allende. "While an appellant's affidavit or declaration based on first-hand knowledge of the facts, standing alone, is legally competent evidence, in Allende our superior court was unpersuaded by the appellant's affidavit in the absence of additional supporting legally competent evidence." Id. But that doesn't mean that an uncorroborated affidavit or declaration is never sufficient to demonstrate prejudice:

Allende relieves the appellant of his obligation to provide independent third-party substantiation of the facts underlying his claim of employment prejudice upon a showing that he reasonably attempted to obtain such independent corroboration but was unable to do so. Thus, if an appellant's claim is adequately specific on its face to state a claim of legal error, such that the Government may, with reasonable effort, take steps to confirm or refute the appellant's assertions, and if such claim of error is either factually supported by independent evidence -- or the appellant's affidavit or declaration specifically articulates his inability to obtain such independent evidence -- the burden of going forward with the evidence shifts to the Government.

At that point, if the Government does not contest the relevant facts, or expressly concedes them, we may treat the appellant's asserted facts as uncontroverted and decide the issue without additional fact-finding. If, however, the Government rises to meet its burden of going forward by presenting affidavits or other evidence that place material facts in dispute, an evidentiary hearing is ordinarily required.

Id., slip op. at 6-7 (internal footnotes omitted).

NMCCA also noted that CMA has held that an appellant's detailed but unsubstantiated claims can sufficiently demonstrate prejudice where the evidence supporting those claims is in the government's possession. Id., slip op. at 6 n.19 (citing United States v. Shely, 16 M.J. 431, 432 (C.M.A. 1983)).

NMCCA then forcefully rejects the notion that the government may "contest" an appellant's claims simply by disagreeing with them without any evidentiary support and calls into question the ethical permissibility of disagreeing with an appellant's claims without having actually researched them:

The Government's brief attempts to distinguish the term 'contest' from the term 'rebut.' The Government argues they may 'contest' an appellant's affidavit simply by putting the court on notice that it takes exception to the appellant's affidavit without actually offering any contrary or inconsistent evidence. . . . [W]hen the appellant's proof is as specific as is this appellant's, we question whether the Government may ethically assert a contrary position, absent some inquiry upon which to base a good-faith belief that the information tendered is false or inaccurate. That concern aside, the Government clearly places its litigation posture at risk when it does nothing in the face of specific, apparently verifiable facts. That risk, of course, is that this court will find the pleadings and proof of the appellant sufficient to conclude his assignment of error warrants relief.

Id., slip op. at 7 (internal footnotes omitted).

NMCCA then emphasized the specificity of PFC Bush's claims of interference with employment opportunities and found that "appellant's declaration states a claim of legal error and provides adequate detail to permit the Government to validate or dispute his claims." Id., slip op. at 8. NMCCA then turned to the key question in the case -- the question that would lead NMCCA to reach a different conclusion than in its original pre-Allende decision in the case: "The only remaining question, therefore, is whether, in light of Allende, the appellant has adequately substantiated his claim of prejudice." Id. And NMCCA concludes, as post-Allende it must, that "while the appellant provided an adequately detailed declaration articulating prejudice to his employment opportunities, he has not met his additional burden to provide corroborating evidence or an explanation of why such evidence could not be obtained. Consequently, this fourth factor of prejudice weighs in favor of the Government." Id. (internal citation omitted).

Had NMCCA stopped there, its opinion would have been a valuable restatement of the current law regarding post-trial delay. But it went on and provided an additional valuable service: revealing a flaw in CAAF's opinion in Allende.

Quoting CAAF's opinion in United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006), NMCCA observed that it can find a due process violation even in the absence of prejudice if "the delay is so egregious that tolerating it would adversely affect the public's perception of the fairness and integrity of the military justice system." Bush II, slip op. at 8. NMCCA holds that this is such a case and that PFC Bush's due process rights were violated. Id., slip op. at 8-9.

NMCCA acknowledges that "[h]aving found constitutional error, we must now determine if the error was harmless beyond a reasonable doubt to determine if relief is required." Id., slip op. at 9. In such an analysis, the burden is on the government to prove lack of harm. See, e.g., United States v. Harcrow, 66 M.J. 154, 160 (C.A.A.F. 2008). NMCCA then offers the illogical argument that because PFC Bush failed "to independently corroborate his assertion of specific employment prejudice or alternatively to provide facts explaining his inability to provide such independent corroboration[,] . . . the Government has met its burden to show that the post-trial error was harmless beyond a reasonable doubt." Bush II, slip op. at 9. As I previously observed, this conclusion appears to ignore the effect of the burden shifting that NMCCA's finding of constitutional error required. This harmlessness analysis seems to be analogous to a court saying that the burden of proof to establish the appellant's guilt is on the government, the defense presented an unconvincing alibi defense, the government didn't present anything, so the government wins. In other words, it appears to be clearly wrong. But it is an illogical construction compelled by CAAF's opinion in Allende. Let's revisit Allende to see why CAAF should revisit Allende.

In Allende, 2,484 days passed between the court-martial's adjournment and NMCCA's opinion. NMCCA reduced the sentence due to the delay -- setting aside the total forfeitures and three months of confinement that had already been served. The main issue in CAAF's review of Allende was the propriety of the trial counsel's substitute authentication of the record. CAAF handled the post-trial delay issue almost as an afterthought. And in its truncated handling of the post-trial delay issue, CAAF appears to have misanalysed the prejudice question.

In Allende, where there was seven years of delay between trial and the CCA's decision, CAAF "assume[s] assume error and proceed[s] directly to the question of whether any error was harmless beyond a reasonable doubt." 66 M.J. at 145. CAAF notes that "Appellant asserts prejudice on the grounds that his ability to obtain employment has been impaired because he has not been able to show employers a Department of Defense Form 214 (DD-214), the certificate of release from active duty." Id.

CAAF doesn't appear to doubt that interference with employment opportunities can provide the kind of prejudice required for a post-trial delay claim. On the contrary, CAAF favorably cites United States v. Jones, 61 M.J. 80 (C.A.A.F. 2005), a case in which CAAF noted that it has "often recognized interference with post-military employment opportunities as a form of prejudice that warrants relief for unreasonable post-trial delay." 61 M.J. at 84. So there can be no question about whether Allende attempted to demonstrate the right kind of prejudice -- under CAAF's case law, he clearly did.

What Allende holds is that Petty Officer Allende didn't do enough to demonstrate this kind of prejudice. CAAF observes: "Appellant's affidavit asserts that four employers declined to consider him for employment in the period of August-October 2000, approximately a year after his trial was completed, and that two employers declined to consider him for employment for that reason in 2007. Appellant has not provided documentation from potential employers regarding their employment practices, nor has he otherwise demonstrated a valid reason for failing to do so." Allende, 66 M.J. at 145. The final sentence in this section appears internally inconsistent: "In that context, we conclude that the assumed error was harmless beyond a reasonable doubt and note that Appellant has failed to present any substantiated evidence to the contrary." Id. The flaw is obvious: if a constitutional error is assumed, then it is the government's obligation to prove that the error was harmless. Petty Officer Allende actually did present evidence of prejudice. But simply because it was uncorroborated, CAAF dismissed it entirely. The government appears to have done nothing to demonstrate lack of prejudice. Even if CAAF were justified in discounting Petty Officer Allende's account entirely -- and it isn't at all apparent why that approach is justified in a context such as this where the burden is on the government rather than on the defense -- then there would be no evidence on the question of prejudice and therefore the government would not have disproved prejudice beyond a reasonable doubt.

CAAF's analysis would have been perfectly proper if instead of saying it was assuming constitutional error, it offered this analysis while evaluating the prejudice prong of the Moreno/Barker v. Wingo due process test. At that point, it is the accused's burden to demonstrate a constitutional violation and CAAF could have appropriately found that the accused hadn't carried that burden. It could have then weighed the four factors and found no constitutional violation and thus declined to grant any relief. But CAAF didn't. Instead, it purported to assume constitutional error and then test for harmlessness. But that harmlessness analysis appears not to have actually shifted the burden, as the harmlessness analysis must.

Assuming that PFC Bush files a petition for grant of review, CAAF should grant review in his case to correct its analytical error in Allende. And if it does so, then the court must find that once the burden shifted to the government to show lack of prejudice beyond a reasonable doubt in PFC Bush's case, it didn't carry that burden. Accordingly, relief is warranted for the constitutional violation in PFC Bush's case.

Review of the Supremes' 2007 Term criminal justice case law

Via SCOTUSblog, here's a link to the ABA Criminal Justice Section's annual review of the Supreme Court's criminal cases.

Code 46 files writ appeal

Here's something rarely seen: the government filed a writ appeal at CAAF this week. On Wednesday, CAAF docketed United States v. Harty, __ M.J. ___, Misc. No. 08-8024/NA (C.A.A.F. Aug. 20, 2008). I've posted NMCCA's one-page order denying the government's petition for a writ of mandamus here. United States v. Harty, No. NMCCA 20080604 (N-M. Ct. Crim. App. Aug. 6, 2008).

NMCCA's order is cryptic, so I'll tell you what little I know. If you know more than I and see that I've gotten something wrong or omitted something important, please comment below.

Judge Harty e-mailed counsel a ruling apparently excluding certain evidence from the court-martial case of United States v. Tucker. (I have no idea what that underlying ruling is about.) The government wants to file an Article 62 appeal to challenge that ruling. But the government wants Judge Harty to go on the record to enter the ruling in an Article 39(a) session rather than ruling by e-mail. Judge Harty declined the government's invitation to go on the record. The government then apparently filed a notice of appeal at NMCCA. But the government apparently still wants Judge Harty to go on the record to enter the ruling and filed a petition for extraordinary relief at NMCCA asking that court to order Judge Harty to do so. NMCCA denied the request, observing that "the Government filed a timely notice of appeal within 72 hours of receipt of the military judge's 'informal ruling by email,' thereby preserving the right to appeal under Article 62, UCMJ." Harty, No. NMCCA 20080604, slip op. at 1 n.1.

Code 46 has now appealed that denial to CAAF, asking that court to "reverse the decision of the lower court and direct the lower court to order [Judge Harty] to schedule an Article 39(a) session to place his ruling on the Government's motion to admit on the record. This Article 39(a) session will properly commence the Government's appeal timeline pursuant to R.C.M. 908."

This litigation calls to mind NMCCA's recent admonition about practicing e-mail law:

We appreciate the military judge's efforts to keep this case moving along, and understand his use of e-mail to aid him in that effort. However, we caution all military judges that they must make all rulings of the court a part of the record, including factual issues involved in determining a motion. See R.C.M. 905(d). We will only give deference to the military judge's ruling when he or she indicates on the record an accurate understanding of the law and its application to the relevant facts. United States v. Briggs, 64 M.J. 285, 287 (C.A.A.F. 2007)(citing United States v. Downing, 56 M.J. 419, 422 (C.A.A.F. 2002)).

United States v. Wheeler, 66 M.J. 590, 593 n.5 (N-M. Ct. Crim. App. 2008). But given this threat to treat military judges' rulings less deferentially if made by e-mail rather than on the record, one would think it would be the defense, not the government, trying to get the military judge on the record to bolster his suppression ruling.

Iraqi SOFA: Servicmember Legal Jurisdiction Still at Issue

Following up on our report yesterday on legal jurisdiction over US forces in Iraq, we note that the WaPo is reporting here that the primary remaining issue in negotiations with Iraq is the question of application of Iraqi law to US forces in Iraq. Here is what the Post story reported:

The question of immunity for U.S. troops and Defense Department personnel from Iraqi legal jurisdiction -- demanded by Washington and rejected by Baghdad -- remained unresolved. Troop immunity, one U.S. official said, "is the red line for us." Officials said they were still discussing language that would make the distinction between on- and off-duty activities, with provisions allowing for some measure of Iraqi legal jurisdiction over soldiers accused of committing crimes while off-duty.

The story also stated explicitly what we inferred from prior reports, "the United States abandoned its immunity demand for contractors."

Improvements to the UCMJ Needed

There is a troubling and potentially dangerous disconnect between the rules, procedures, and penal code sections that exist under the UCMJ, and the creativity and innovation that exists amongst the various states rules, procedures, and penal code sections. We can - - -and should - - -improve our UCMJ, and the practice of criminal law in the miltary, by looking to and learning from criminal law practice in the 50 states. To date, we have rarely looked to state practice.


In the coming months, I plan to suggest improvements to the UCMJ, all of which come actual state practice. My suggestions will cover changes to the evidence rules, the punitive articles, procedural rules, and other related areas. One goal is to stimulate an intelligent dialogue, and inform decisionmakers about what is happening- - -and has been happening- - -in the states. My ultimate goal is to improve the criminal justice system in the military, for victims and defendants alike.


An obvious place to start is in the area of domestic violence and sexual assault cases. I start with the former.

As a former local, state, and federal prosecutor (and military defense and trial counsel), I think it is obvious that our UCMJ is in need of updating and revision. At the outset let me be clear: the UCMJ (to include the MRE's and RCM's) is a remarkable and carefully crafted instrument, and any changes to the UCMJ should only be made after great thought and deliberation. That said, there is much room for improvement.

Typically, it has been the states (not the federal government or the military) that have been at the forefront of advancements in criminal law, evidence code revisions, and the creation of appropriate criminal laws. For many reasons, it takes the federal government years (sometimes) to recognize- - -if ever- - -advances in various states' criminal justice initiatives. Changes to the UCMJ typically occur after the federal government passes new federal rules (under 18 USC or FREs). There are many reasons why the feds lag behind the states in this respect. And there are certainly plausible reasons why the committee that considers changes to the UCMJ - - -the Joint Services Committee, an arm of the DOD General Counsel - - -looks to the feds before recommending changes to the UCMJ.

In some instances, however, that delay is unwarranted. Indeed, it has harmed the administration of justice in the military in some cases. The Joint Services Committee should look at best practices around the country for guidance, not just the federal government.


In 1995 the California legislature passed Evidence Code section 1108, which allowed the prosecution to admit evidence of another sexual offense against the defendant in a sexual assault case (so-called "propensity" evidence). Congress enacted FRE 413 and 414 in 1994, and eventually it was adopted for court-martial in 1996. Fine, that covers sexual assault cases, but what about domestic violence cases?

In 1996, the same California legislature passed a similar provision - - -Evidence Code section 1109 - - -which allowed the admission of evidence that the defendant committed acts of domestic violence in other domestic violence cases. Here is how that rule works in a typical case: defendant assaults victim; victim calls 911; police show up and take statement from crying victim; police document crime scene and take pictures of any injury. A misdemeanor charge of assault is filed. Meanwhile, the victim and defendant reconcile, and the victim recants or refuses to testify. The prosecutors attempt to locate previous wives or ex-girlfriends (or the like) of the defendant, and ask them about any potential violence. At trial, the government calls previous girlfriends of the defendant who the defendant abused. They testify, in detail, about the prior assault. The government also puts on all other evidence of the assault, and puts into evidence the 911 call by the victim. The victim refuses to testify, and the government rests. At closing argument, the government argues that the defendant has a propensity to commit domestic violence in this case, because of the prior victims. Like all cases, the jury convicts sometimes, and acquits in other cases.

Anyone who has spent years actually prosecuting or defending domestic violence cases, sexual assault cases, and sex abuse cases, knows that these propensity rules of admissibility make sense. These defendants are different, and the normal rules underlying the rationale of MRE 404b (excluding propensity evidence ) ignore that reality. Yet, we have no 1109 equivalent in the military. The lack of such a rule has harmed, and continues to harm victims of domestic violence in the military. That needs to change.

Penal Code 591 and 591.5 - - -When I was a Deputy City Attorney in the San Diego City Attorney's Domestic Violence Unit (working for renowned domestic violence prosecution visionary Casey Gwinn), it was quite common to handle cases of simple assault where the accused had (in addition to assaulting the victim) pulled the phone out of the wall or disabled any other communications device to prevent the victim from reporting the crime to law enforcement (or anyone for that matter). Evidence in those cases would often include a 911 call; a crying victim; slight injuries; a house that was torn up, and; a phone cord pulled out of the wall. By the time you got to trial, the victim had recanted and refused to testify. We routinely called previous girlfriends to the stand in our case-in-chief under Evidence Code section 1109. They testified about assaults the defendant committed against them. Often, they brought pictures to court of the abuse inflicted by the defendant. That evidence was powerful. Without it, juries had no idea of the propensity of the accused.

We had another tool, one which we need in the military. California Penal Code section 591 makes it a crime to willfully and maliciously remove, injure, or obstruct a telephone (or any communications device). And, because of the increased use of cell phones by citizens, the California legislature enacted Penal Code section 591.5 in 2003---which makes it a crime to unlawfully and maliciously remove, injure, destroy or damage a cell phone with the intent to prevent the use of the device to summon assistance or notify law enforcement. The result: victims are empowered, and more accused's are held accountable----and get help for their actions. As in many domestic violence simple assault cases, the government loses the simple assault charge, but wins the disabling the communications device charge. And, not surprisingly, those reluctant victims often thank the prosecutor after the conviction. We need similar provisions under the UCMJ.

In the coming weeks and months, I plan to propose other common sense improvements to the UCMJ. I recognize that the aforementioned improvements are California-centric, and prosecution-centric. Over time, however, I plan to propose other improvements drawn from other states, and ones that could easily be characterized as "defense oriented."

The goal is to make our criminal justice system in the military reflect the very best that our Country has to offer. I welcome your thoughts and remarks, and look forward to an intelligent dialogue.

NMCCA releases published en banc post-trial delay opinion [UPDATED]

On 19 August, NMCCA released a published en banc opinion. It isn't up on NMCCA's web site yet, so I've posted it here.

The decision, United States v. Bush, __ M.J. ___, No. NMCCA 200700137 (N-M. Ct. Crim. App. Aug. 19, 2008) (en banc), reverses the court's previous published opinion in the case. United States v. Bush, 66 M.J. 541 (N-M. Ct. Crim. App. 2008). The previous Bush opinion seemed doomed from the start. The day after NMCCA issued its opinion providing relief to an appellant for seven years of post-trial delay, CAAF issued its opinion in United States v. Allende, 66 M.J. 142 (C.A.A.F. 2008), which seemed to directly undercut Bush I's determination that PFC Bush's declaration was sufficient to show prejudice arising from the post-trial delay.

The new en banc Bush II opinion provides some helpful guidance for litigating post-trial delay cases. I'll explore that guidance further over the weekend. But perhaps tonight someone can help me with a vexing question that the opinion raised in my mind.

In the en banc Bush II opinion, NMCCA applies Allende to find that PFC Bush has not adequately demonstrated prejudice arising from the post-trial delay. NMCCA writes: "The appellant has not submitted any affidavits or other evidence beyond his own declaration. Further, his declaration does not articulate if or why he was unable to provide such additional evidence. We conclude, therefore, that while the appellant provided an adequately detailed declaration articulating prejudice to his employment opportunities, he has not met his additional burden to provide corroborating evidence or an explanation of why such evidence could not be obtained. Consequently, this fourth factor of prejudice weighs in favor of the Government." Bush II, slip op. at 8.

Notwithstanding the lack of prejudice, NMCCA finds a constitutional due process violation. The court reasons: "[E]ven in the absence of specific prejudice to the appellant, the delay in the post-trial review of this case 'is so egregious that tolerating it would adversely affect the public's perception of the fairness and integrity of the military justice system.' Consequently, we hold that the appellant's due process right to speedy post-trial review has been violated." Id., slip op. at 8-9 (quoting United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006)).

The court then tells us, "Having found constitutional error, we must now determine if the error was harmless beyond a reasonable doubt to determine if relief is required." Id., slip op. at 9. So far so good. And while NMCCA doesn't say so, we know that the burden is on the government to show that the constitutional error is harmless beyond a reasonable doubt. See, e.g., United States v. Harcrow, 66 M.J. 154, 160 (C.A.A.F. 2008).

But immediately after NMCCA sets out the harmless beyond a reasonable doubt requirement, the wheels seem to fly off the axle. Here's what NMCCA writes next:

The appellant's failure to independently corroborate his assertion of specific employment prejudice or alternatively to provide facts explaining his inability to provide such independent corroboration weighs heavily in our decision. The appellant does not assert and our review of the record did not reveal evidence that the appellant has suffered ongoing prejudice from oppressive incarceration or undue anxiety. We conclude, therefore, that the Government has met its burden to show that the post-trial error was harmless beyond a reasonable doubt.

Id.

How can it be that the burden is on the government to show that the constitutional error is harmless beyond a reasonable doubt, but the government carries that burden because the defense didn't make an adequate showing of prejudice? Unlike when applying the fourth Moreno/Barker v. Wingo criterion to consider whether there is a due process violation -- when the burden is on the defense to establish prejudice -- after the determination has been made that a due process violation has occurred, the burden is on the government to show lack of prejudice. But the government didn't even try to carry that burden. The opinion previously told us that while PFC Bush provided an affidavit describing the post-trial delay's adverse effect on his employment opportunities, the "Government responds with no evidence beyond an assertion that the appellant's claims are 'without supporting proof' and are 'unverified and speculative.'" Id., slip op. at 4.

It appears to me that NMCCA has completely missed the effect of the burden shifting that its finding of constitutional error required. The opinion seems to be analogous to a court saying that the burden of proof to establish the appellant's guilt is on the government, the defense presented an unconvincing alibi defense, the government didn't present anything, so the government wins. In other words, it appears to be clearly wrong.

But it does occur to me that perhaps I'm missing some obvious or nuanced point that makes sense of NMCCA's apparent failure to require the government to establish harmlessness beyond a reasonable doubt. This was a unanimous en banc opinion joined by eleven judges of the Navy-Marine Corps Court. If the prejudice analysis is as obviously wrong as I think it is, it seems implausible that not one of those eleven judges would have disagreed with the opinion's treatment of the issue. So if I'm missing something, please, please, please educate me in the comments. But if I'm not missing anything, then it would seem that NMCCA's Bush II opinion will be followed by a Bush III opinion from CAAF that perhaps will require NMCCA to issue a Bush IV opinion.

[UPDATE: Upon looking at Allende again this morning, it becomes apparent why Bush II follows this form: it directly follows the line of Allende's reasoning. So if there is a failure to shift the burden, it was CAAF's failure in Allende and NMCCA is acting appropriately by following the precedent of its superior court. As I suggested last night, the fact that 11 NMCCA judges signed onto this opinion without dissent suggested to me that maybe I was missing something. And I was. More later.]

Hart cert petition

Here's the QP in Hart v. United States, No. 08-193: "Whether the exercise of court-martial jurisdiction over a previously discharged member of the Armed Forces exceeds Congress' authority under Article I, § 8, clause 14?"

The complete argument section of the cert petition is available here.

Iraqi SOFA (or, uhm, MOU or something) Completed?

The WaPo is reporting that, "Iraqi and U.S. negotiators have completed a draft security agreement that would see American troops leave Iraqi cities as soon as June 30, Iraqi and American officials told The Associated Press on Wednesday." The story notes that the agreement includes language regarding the status of U.S. forces and, specifically, legal jurisdiction over them. However, the story seems to diverge from its initial "completed a draft" tag line when discussing the immunity issue,

[Another] official said a compromise had been worked out on the contentious issue of whether to provide U.S. troops immunity from prosecution under Iraqi law, but he did not give details. In Washington, the senior military official said the draft agreement reflects the U.S. position that the United States must retain exclusive legal jurisdiction over its troops in Iraq. While Iraqi negotiators signed off on the draft, another official close to Prime Minister Nouri al-Maliki said the country's political leadership objected to parts of the text, including the immunity provision.

Seems like they aren't any closer to resolving the issue.

CAAF Grants "Meaningful Relief" Petition and Loving Case Back at CAAF

The CAAF [Weekly] Journal is back up, at least through Aug. 13, 2008. The Aug. 13, 2008 entry brings us a petition grant and summary disposition that should bring out all the Navy AppDef and AppGov't types to wrangle in the comments about what is and is not meaningful relief, or at least I hope so. Since the summary disposition is, well, summary, I'll just Jenkins-it instead of summarizing it:

[W]e note that the Court of Criminal Appeals found error in the post-trial processing of the case as a result of a failure to serve the staff judge advocate’s recommendation on Appellant prior to action by the convening authority. See Rule for Courts-Martial 1105(f). The court concluded that the error was prejudicial. Noting that the case had been subject to significant delays, the court concluded that a remand for new action by the convening authority would further delay disposition of the case, and it ordered appropriate relief for the error by approving a sentence that did not include adjudged forfeitures.
We further note that the corrective action ordered by the court below did not modify that portion of Appellant’s sentence that included confinement for two months. In that posture, the corrective action had no actual effect on forfeitures because Appellant’s pay remained subject to automatic forfeitures under Article 58b, [UCMJ]. Under these circumstances, the action taken by the court below did not take the steps necessary to provide Appellant with meaningful relief. . . . Such relief with respect to forfeitures may be provided by approving a sentence that does not include confinement, thereby removing the requirement for automatic forfeitures under Article 58b, UCMJ. Accordingly, it is ordered that said petition is granted on the following issue:

WHETHER, AFTER FINDING PREJUDICIAL ERROR, THE LOWER COURT ERRED IN FAILING TO GRANT MEANINGFUL RELIEF.

The portion of the United States Navy-Marine Corps Court of Criminal Appeals decision affirming confinement for two months is reversed and that portion of the sentence is set aside. The remainder of the Navy-Marine Corps Court of Criminal Appeals’ decision, which affirmed the findings and only so much of the sentence as provided for a bad-conduct discharge and reduction to pay grade E-1, is affirmed.

(citations omitted).

There were also two other grants of note, one of which JO'C should be salivating over and the other is the return of the Loving death penalty writ after a DuBay hearing on an ineffective assistance of counsel at sentencing issue.

No.06-8006/AR. Dwight J. Loving, Petitioner v. United States, Respondent. CCA 19891123. . . . Accordingly, it is ordered that the parties shall file briefs on the following issues:

I. WHETHER THE RECORD OF THE EVIDENTIARY HEARING ORDERED PURSUANT TO UNITED STATES v. DUBAY, 17 C.M.A. 147, 37 C.M.R. 411 (1967), SHOULD BE RETURNED TO THE JUDGE ADVOCATE GENERAL OF THE ARMY FOR REMAND TO THE CONVENING AUTHORITY AND/OR THE ARMY COURT OF CRIMINAL APPEALS FOR REVIEW PRIOR TO REVIEW BY THIS COURT.

II. WHETHER PETITIONER’S WRIT OF HABEAS CORPUS SHOULD ISSUE IN VIEW OF THE FINDINGS OF FACT AND CONCLUSIONS OF LAW ENTERED BY THE MILITARY JUDGE IN THE DUBAY PROCEEDING ON THE QUESTION OF WHETHER THE TRIAL DEFENSE TEAM CONDUCTED A REASONABLE INVESTIGATION INTO POTENTIAL EVIDENCE IN MITIGATION AND PROVIDED EFFECTIVE ASSISTANCE OF COUNSEL AT SENTENCING.

CAAF scheduled the hearing in the Loving case for Oct. 29, 2008 at 9 a.m.

No. 08-0452/AF. U.S. v. Matthew W. GLADUE. CCA 36580. Review granted on the following issue:

WHETHER THE LOWER COURT ERRED WHEN IT FOUND THAT A PROVISION IN APPELLANT'S PRETRIAL AGREEMENT TO "WAIVE ALL WAIVABLE MOTIONS" WAS AN EXPRESS WAIVER THAT BARS APPELLANT FROM ASSERTING ANY CLAIMS OF MULTIPLICITY OR MULTIPLICATION OF CHARGES ON APPEAL.

Supremes docket another military cert petition

The Supremes have docketed a cert petition seeking review of CAAF's 3-2 opinion in United States v. Hart, 66 M.J. 273 (C.A.A.F. 2008). Hart v. United States, No. 08-193. When I return to D.C., I'll try to get the QP and post it.

Milk Carton Alert #2: CAAF's [Weekly] Journal

Anyone know what's up with the CAAF Daily Journal? Last entry was August 7, 2008.

Courts-Martial News

Here is a round-up of the latest court-martial news of note:

Five Navy sailors will face summary and special courts-martial for alleged detainee abuse in Iraq, as reported here by Navy Times. Another sailor faces an Art. 32 hearing. The alleged abuse came after a "day of unrest at [Camp Bucca, Iraq]," said a Navy spokeswoman, CDR Jane Campbell. Navy Times described the alleged abuse, "Two detainees suffered abrasions as a result of . . . alleged assaults, and eight others were locked overnight in a detainee housing unit that was doused with pepper spray while its ventilation system was secured." Seven others, including a Navy LT were taken to mast. Navy Times mentioned what I thought was an interesting aspect of the cases, "The use of pepper spray in warfare is banned by international treaties on chemical weapons, but many governments say members of their armed forces are permitted to use it in war zones for law-enforcement duties."

For those already hesitant to make posts on this website, see this Stars and Stripes report on an Army investigation into blog posts about a court-martial.

Tuesday begins the trial of Sgt. Jose Nazario in US District Court. Nazario is one of three Marines accused of various crimes in the "deaths of four Iraqi prisoners during the battle in Fallujah on Nov. 9, 2004." Follow the story at the San Francisco Chronicle. Here is today's story from SFGate. See our prior posts on the story here and here.

No Man Back

After taking in 5 days in the sun at the little hidden getaway known as Navy Rec Center Solomon's Island, I am back at the computer. Lots o' irregular Mil Jus news since I was gone. I'll see if I can catch our readers up on the busy week.

Also, since I now have some stake in the direction of the Committee, I encourage all of our readers with an interest in Mil Jus and/or government contracts to join a little merry band of government and private practitioners known as the Battle Space and Contingency Procurements Committee of the ABA Section of Public Contract Law. The Mil Jus experts on the Committee are growing in light of application of Art. 2, UCMJ to certain government contractors, now more than 2 years ago.

WaPo reports DOJ is moving toward MEJA prosecutions of 6 Blackwater security guards

Today's Washington Post reports here that DOJ has sent target letters to six Blackwater security guards arising from a September 2007 firefight in Iraq that reportedly resulted in 17 Iraqi civilian deaths. According to the article, "The sources said that any charges against the guards would likely be brought under the Military Extraterritorial Jurisdiction Act, which has previously been used to prosecute only the cases referred to the Justice Department for crimes committed by military personnel and contractors overseas. Legal experts have questioned whether contractors working for the State Department can be prosecuted under its provisions."

The article also reports, "Lawyers for the Blackwater guards have argued in ongoing discussions with prosecutors that the Military Extraterritorial Jurisdiction Act, known as MEJA, can be applied only to contractors working for the Defense Department, two sources said. That position appeared to be buttressed by the Congressional Budget Office, which said in a report on contractors in Iraq released last week that MEJA 'does not apply to civilians working . . . for federal departments or agencies other than DOD [the Department of Defense].'

"Legislative proposals to extend MEJA's provisions beyond the Defense Department -- which have been repeatedly opposed by the White House -- have made the same point.

"But the question has never been tested in court. Some outside legal experts said that prosecutors would be able to make a compelling argument that MEJA covers Blackwater guards involved in the shooting under a 2005 amendment that expanded MEJA's provisions to include contractors 'supporting the mission of the Department of Defense.'"

To paraphrase Horace Lee Logan, CAAFlog is leaving the building

I'm leaving tomorrow for a couple of days of reserve duty. I'll have at best diminished Internet access while I'm gone. As always, I invite my CAAFlog colleagues to keep you informed while I'm gone -- particularly if CAAF updates its daily journal web page or if the Coast Guard Court's web site returns from whatever black hole it's currently sucked into. I'll be back in the CAAFlog saddle Wednesday night.

Reporters Committee for Freedom of the Press's report on court-martial dockets

The Reporters Committee for Freedom of the Press has released a fascinating white paper, available here, on journalists' access to information about court-martial dockets.

This excerpt will give you a flavor of the report:

Unlike civilian courts, which routinely supply the public with detailed dockets, most military courts release docketing information sporadically at their own self-interested discretion, if at all. This policy of secrecy has frustrated the press in its attempts to report on important military justice proceedings, while enabling some government officials to hide criminal cases that could be embarrassing or damaging to the military. Perhaps most alarmingly, the public has been left critically uninformed as to the competence and fairness of the military justice system.

The report was prepared in conjunction with the Tully Center for Free Speech at Syracuse University. The Tully Center conducted a study in which its researchers contacted 25% of the military installations of each service (excluding the National Guard) seeking schedules for upcoming courts-martial and Article 32s. It found that 57 percent of the installations surveyed provided partial or full information about their court-martial dockets while 37 percent provided no information. (The rest were spread between a couple of categories that appear to boil down to "not applicable.") For Article 32 investigations, 49% of installations provided partial or full information while 45% provided no information.

The Tully Center also breaks the stats down by branch. Which branch do you think was the most forthcoming and which the least? Here they are, from most to least informative: Coast Guard (78%), Army (65%), Air Force (63%), Marine Corps (43%), Navy (42%).

The Reporters Committee white paper calls for either a UCMJ amendment or an RCM change to formalize the release of docket information. Under the proposal, DOD would set up a public interservice web site (presumably also including Coast Guard data) that would list "[e]ach and every military court proceeding" two weeks in advance (or as soon as reasonably possible where two weeks' notice is impossible).

The report concludes:

Regardless of the precise legislative form by which these reforms occur, the most significant characteristic of the reforms must be their standardized, indelible nature. The current system appears to operate at the discretion of individual branch officials, and, in many cases, the discretion of individual military court judges. To provide the American public with a fair and competent military justice system, the new military court docketing system must be operated independently from the whim and motive of individuals and enforceable by law.

NIMJ released this statement endorsing the white paper's proposal that Congress "require DOD to establish a public website in order to provide accurate and timely information to the public and the news media about upcoming courts-martial."

An idiosyncratic military justice expression

Judge Beal's ruling holding that a portion of the new Article 120 is unconstitutional, about which the Kabul Klipper posts below, is an important development. But the ruling sparks a completely trivial thought in my mind.

Have you noticed the Courts of Criminal Appeals' tendency to refer to CAAF as "our superior court"? I've always assumed that this phrase was used mainly to finesse CAAF's name change. If a CCA wants to discuss an opinion by CMA or a couple of opinions, one issued in the CMA age and one issued in the CAAF age, it can use the phrase "our superior court" without having to specifiy "CMA" or "CAAF." And a couple of LEXIS searches tend to support that theory. Before 1 October 1994, the CMRs and Boards of Review used the phrase "our superior court" 15 times in opinions available on LEXIS. Since then, the CCAs have used the phrase 1,795 times.

Use of the phrase has also expanded beyond the CCAs. In the two appellate systems in which I litigate -- the Air Force and the Navy-Marine Corps -- I've noticed appellate government counsel's filings using the phrase "our superior court." That phrase always struck me as a bit odd, since CAAF is the CCA's "superior court," not the Appellate Government Division's "superior court." In fact, both the CCA and CAAF are Code 46's and JAJG's superior courts. By referring to "our superior court," an appellate government division seems to be semantically putting itself at the same level as the CCA.

Now Judge Beal -- a former appellate government counsel -- takes use of the "our" construction a step further, referring to "our Supreme Court." That phrase appears in just four CCA/CMR/Board of Review decisions available on LEXIS -- and in one of them, it was used to refer to CMA. United States v. Arrington, 5 M.J. 756, 758-59 (A.C.M.R. 1978) (Cook, J., concurring).

While I've never particularly cared for the phrase "our superior court" -- especially when used by appellate government counsel -- there's something oddly charming about the phrase "our Supreme Court." It's a reminder that, yes, Supreme Court precedent is applicable to the military, though sometimes it applies differently in the military than in other contexts.

We'll watch to see whether the phrase "our Supreme Court" catches on with other military legal writers.

Time to print up more milk cartons?

I haven't been able to access CGCCA's opinions for several days now. Does anyone else have an Internet address for them that actually works?

Military Judge rules new Article 120 unconstitutional

On August 12, Marine Corps Lieutenant Colonel Raymond Beal ruled that the new Article 120, UCMJ violated an accused's Fifth Amendment right to due process of law.

Machinist's Mate Second Class William Fairley, USN, is charged under with aggravated sexual assault under Article 120(c) for allegedly engaging in a sexual act with another person while that person was substantially incapable of declining participation in the sexual act. Under the new Article 120, which became effective on October 1, 2007, the question of consent on the part of the alleged victim is not an issue in this case unless the accused can affirmatively prove that the alleged victim consented.

The issue facing the court-martial was whether making the accused prove that the victim consented is tantamount to making him disprove the second element of the offense--that the other person was incapable of consenting. The military judge ruled that since an accused "cannot logically assert the affirmative defense of consent without denying the second element of the offense," imposing the requirement on the accused to prove consent shifted the burden of proof to the accused in violation of due process.

The military judge's ruling is available here.

CAAF schedules orientation session

CAAF will hold an orientation for new appellate counsel (though not-so-new counsel are also welcome and this rather well-worn counsel will be there) at 0900 on 9 September. According to Mr. DeCicco's announcement, "Topics will include the Court's Rules of Practice and Procedure, bar admissions, drafting and filing of pleadings, the petition process, joint appendices, the new rule on withdrawal of petitions, electronic filing, the Court's website, Project Outreach, and a question and answer session."

Second judge disqualifies Hartmann as Gitmo legal advisor

Two cases do not make a trend, but this news from Guantanamo is disturbing: the military judge presiding over the trial of detainee Mohammed Jawad has disqualified Air Force Brigadier General Thomas Hartmann, the legal adviser to convening authority Susan Crawford, from any further participation in the case. Hartmann was also barred from participation in the Salim Hamdan case in an earlier ruling.

The presiding judge in the Jawad case, Army Colonel Steve Henley, found that Gen. Hartmann compromised his objectivity by aligning himself with the prosecution, and more specifically that he failed to communicate Jawad's counsel's analysis of "mitigating and extenuating circumstances" to Crawford. The judge remanded the case to the convening authority for consideration of those circumstances.

The hearing also saw testimony from Army Brigadier General Gregory Zanetti, who testified that Hartmann was "abusive, bullying and unprofessional" in promoting the tribunals, and the assertion of Article 31 rights by Army Lieutenant Colonel Diane M. Zierhoffer, a psychologist called to testify about interrogation techniques applied to Zawad in which she had apparently taken part.

Incinerated frog meat tastes just like a big chicken dinner

Think of the weirdest case you ever handled at a court-martial. Okay, got it? Now compare it to United States v. Wilson, No. ACM S31348 (A.F. Ct. Crim. App. Aug. 11, 2008) (per curiam). SSgt Wilson was convicted of willful dereliction of duty for intentionally violating his duty not to -- and I swear I'm not making this up -- throw a small frog in front of an F-16 jet engine, allowing it to be sucked into the intake. That's got my weirdest case beat hands down (or flippers down, as the case may be). Rather than charging SSgt Wilson with willful dereliction, I wonder if there was any thought to charging him under the ADA -- the Amphibian Disintegration Act.

SSgt Wilson was unhoppy with his sentence, which included a big chicken dinner. AFCCA nevertheless found the sentence appropriate, reasoning: "The appellant correctly points out that the frog ingested into the engine was small, soft, and ultimately caused no damage. Nonetheless, the offenses of which he stands convicted are serious." The court noted that after the incident came to light because one of the frog fryers put video of the cookout on the Internet, 41 planes of "the famed Wolf Pack," as AFCCA colorfully calls the 8th Fighter Wing, were grounded for two days for inspections, forcing "hundreds of personnel to work extra hours to ensure the aircraft were safe."

How do you suppose the French Air Force cooks its frog legs?

No certification in Walker

The Judge Advocate General of the Navy let the certification deadline pass for the Navy-Marine Corps Court's opinion in the capital appeal of United States v. Walker, 66 M.J. 721 (N-M. Ct. Crim. App. 2008), without certifying it to CAAF. Nor did Code 46 ask NMCCA to reconsider.

Cert petition filed in Adams

My erstwhile colleague Tony "The Tiger" Ortiz is counsel of record in a cert petition that the Supremes have docketed. Adams v. United States, No. 08-170. The petition seeks review of CAAF's decision at 66 M.J. 255.

Here's the QP:

In McClaughry v. Deming, 186 U.S. 49 (1902), this Court recognized the importance of statutory construction of a court-martial as an essential component for jurisdiction, stressing that a court-martial may only have jurisdiction if it is convened and constituted in entire conformity with the provisions of the statute. Here, the final convening order unequivocally states that the general court-martial would be constituted with only the five members listed on the final order. However, members on prior orders were seated in the court-martial in direct violation of 10 U.S.C. § 825 and Rule for Courts-Martial 504. Does a court-martial have jurisdiction when members of the court-martial panel were not properly constituted to the court by the final convening order?

Here's a link to the full petition.

The JAG Corps strikes back

Last year, Commander Glenn Sulmasy of the Coast Guard Academy's faculty and Professor John Yoo of Boalt Hall's faculty published a provocative article called Challenges to Civilian Control of the Military: A Rational Choice Approach to the War on Terror, 54 UCLA L. Rev. 1815 (2007). The article basically argued that the balance of power between judge advocates and civilian U.S. government officials had gotten out of whack and that the civilian officials need to put the judge advocates back in their subordinate place (I'm paraphrasing).

The UCLA Law Review, which published the Sulmasy & Yoo piece, has now published a rebuttal written by Lieutenant Colonel Michael L. Kramer, JA, U.S. Army, and Professor Michael N. Scmitt of the Naval War College's faculty: Lawyers on Horseback? Thoughts on Judge Advocates and Civil-Military Relations, 55 UCLA L. Rev. 1407 (2008). Here's a link. They conclude: "Ultimately, Commander Sulmasy and Professors Yoo's arguments must be turned on their heads. Judge advocates do not corrupt civilian control over the military, they inform it. Uniformed lawyers act as honest interlocutors in the process."

Ask and ye shall receive

Here's the new link to the Coast Guard Court's site. Thanks, Hell Roarer!

The Year of Jurisdiction cont'

ACCA has issued a fascinating unpublished opinion deciding a pair of competing petitions for extraordinary relief. United States v. Reinert & Gipson v. McCoy, Nos. ARMY MISC 20071195 & ARMY MISC 20071343 (A. Ct. Crim. App. Aug. 7, 2008). (I'm not exactly sure why an appellate court would issue a 17-page opinion but not publish it, but that's what ACCA did. That said, the opinion was in some ways sloppy -- for example, referring to Goldsmith v. Clinton, 526 U.S. 529 (1999), rather than Clinton v. Goldsmith, referring to "the principle jurisdictional question" instead of "the principal jurisdictional question," and entirely skirting the concept of potential appellate jurisdiction. Was such sloppiness the reason for not publishing it or was the sloppiness actually a product of the decision not to publish? Perhaps if it had been published, the opinion would have been cleaner.)

A military judge gave an accused credit for illegal pretrial punishment. He then directed the government to provide training to prevent repeated incidents of illegal pretrial punishment and announced that he would award the accused an additional five says of confinement credit if the government failed to certify that it had done so. The command took corrective action regarding the particular NCOs who had illegally punished the accused, but declined to provide the ordered general training. The judge then awarded the additional five days of credit. The SJA balked at actually providing the credit and the government filed a petition for extraordinary relief asking ACCA to hold that the military judge had no power to award the additional credit for violation of his ordered training regimen. The accused filed a counter-petition for extraordinary relief asking ACCA to direct the command to proceed with the post-trial processing.

ACCA first held that the requested relief didn't fall within its Article 62 appellate jurisdiction. It then indicated that it sure didn't look like it had jurisdiction to issue writs at the government's behest where the case fell outside of Article 62's jurisdictional limitations. But, ACCA held, it was bound by CAAF precedent to hold that it did have such jurisdiction, so it would proceed to consider the government's petition.

ACCA then indicated that the military judge had no power to order general training to prevent illegal pretrial punishment and that he erred by awarding five days of additional confinement credit when the government failed to comply with his ultra vires order.

The decision is worth the read and raises interesting questions for future cases. But after reading it, I had one specific line of questions. It isn't clear to me precisely when Private Gipson was sentenced, but the adjudged confinement was for seven months. The military judge awarded 20 days of uncontested illegal pretrial confinement credit. He awarded the disputed five days on 24 September 2007. The government sought extraordinary relief on 26 October 2007 and ACCA held oral argument on 19 December 2007. Then, more than seven months later, ACCA issued the requested relief. So obviously by the time ACCA ruled, PVT Gipson either had or hadn't been released from confinement five days early. Which was it? If he wasn't, what is the authority for failing to release a Soldier from post-trial confinement in accordance with the military judge's orders simply because the CA hadn't yet acted? Presumably in almost all special court-martial cases in which Allen credit, Suzuki credit, Adcock credit, or other forms of credit are granted, the CA hasn't acted by the time the credit should kick in. Is there any legal support for the proposition that such credit doesn't apply until ordered by the CA? And if PVT Gipson had been released five days early, why wasn't the case moot? Perhaps one of our duo of Army lurkers could shed some light on those issues.

Should we put CGCCA judges' pictures on milk cartons?

My link to the Coast Guard Court's web site has gone belly up, as has the link from CAAF's web site. I tried a few searches and couldn't find a new web address. Does anyone know what's become of the Coast Guard Court's online presence?

CAAF senior judge appearance

Today's WaPo Book World includes the following item in the Literary Caldendar:

14 | THURSDAY

12:30 P.M. Eugene Sullivan reads from and signs his new political thriller, The Report to the Judiciary, at Barnes & Noble-Metro Center, 555 12th St. NW, 202-347-0176.

ACCA Affirms 4th A. Exclusionary Rule . . . Ruling

Trying to do this all by BlackBerry, so bear with me. According to our growing horde of Army lurkers (there are now apparently 2), ACCA affirmed a military judge's exclusion of an accused's statements under the 4th Amendment exclusionary rule. See United States v. Martinez, Army Misc. 2008032 (A. Ct. Crim. App. Aug 5, 2008). I know I initially read the first 2 pages of the op. and thought that 4th Amendment was a typo, it is not. Holding is based on an illegal apprehension. In any event the Art. 62 appeal affirmed the MJ and returned the case for trial, which apparently is another of the Iraq based courts martial. See New York Times coverage here.

CAAF grants review to determine the effect of a PTA's waiver of all waivable motions on multiplicity/UMC issues on appeal

Again without having actually eyeballed the order, I understand that CAAF yesterday granted review of the something like the following issue:

WHETHER THE LOWER COURT ERRED WHEN IT FOUND THAT A PROVISION IN APPELLANT'S PRETRIAL AGREEMENT TO "WAIVE ALL WAIVABLE MOTIONS" WAS AN EXPRESS WAIVER THAT BARS APPELLANT FROM ASSERTING ANY CLAIMS OF MULTIPLICITY OR UNREASONABLE MULTIPLICATION OF CHARGES ON APPEAL.

United States v. Gladue, __ M.J. ___, No. 08-0452/AF (C.A.A.F. Aug. 7, 2008) (order).

AFCCA's opinion in the case is published at 65 M.J. 903 (A.F. Ct. Crim. App. 2008).

CAAF remand in Adcock-type case

I have returned to the land of 24-hour Internet access.

I haven't eyeballed the order myself, but I understand that yesterday CAAF remanded a case to AFCCA for further consideration in light of Adcock. My understanding is that CAAF granted Staff Sergeant Williams' petition to review the following issue: "WHETHER THE AFCCA ERRED IN NOT CONSIDERING THIS COURT'S DECISION IN US V. ADCOCK, 65 M.J. 18 (CAAF 2007), THAT KNOWING VIOLATION OF SERVICE REGULATIONS DESIGNED TO PROTECT THE RIGHTS OF SERVICEMEMBERS CAN AMOUNT TO AN ABUSE OF DISCRETION WARRANTING CREDIT UNDER R.C.M. 305(k)." United States v. Williams, __ M.J. ___, No. 08-0339/AF (C.A.A.F. Aug. 7, 2008) (summary disposition). I further understand the CAAF summarily set aside the Air Force Court's decision and remanded the case for a new appeal. Id.

AFCCA's original decision in the case is available here. United States v. Williams, No. ACM 36679 (A.F. Ct. Crim. App. Dec. 19, 2007).

Hamdan sentenced to 66 months

Former Osama bin Laden driver Salim Hamdan was sentenced today to five and a half years in prison for his role in providing material support to terrorism. Hamdan will get credit for the nearly sixty-one months he has already spent in confinement.

Although the verdict is being characterized as a "stunning rebuke" of the prosecution, who argued for at least 30 years, it is not clear that the relatively light sentence means Hamdan will be released anytime soon. As the Washington Post reports,

It is uncertain what will happen to Hamdan when he finishes serving his time in January. Military prosecutors said during the trial that an acquittal would not change Hamdan's status as a prisoner. He was declared an enemy combatant by the military in a separate proceeding, and the administration has said it can hold such combatants until the campaign against terrorism is deemed over.

More trials will follow in the coming months.

Hamdan convicted in mixed verdict at Guantanamo

According to Reuters, accused war criminal Salim Hamdan was convicted today on five counts of providing material support for terrorism, but acquitted on two counts of conspiring with al Qaeda to attack civilians, destroy property, and commit murder in violation of the laws of war.

Hamdan's conviction was based on personal services he provided as bin Laden's driver and bodyguard. The acquittal on the conspiracy charges would appear to moot the instructional issues discussed yesterday in this post.

Sentencing proceedings are scheduled to begin today. Hamdan faces the possibility of confinement for life.

Gitmo Press: Law of War Members' Instructions Debated, Mistrial Avoided

U.S. Navy military judge CAPT Allred heard arguments from military commission prosecutors in Salim Hamdan's trial concerning a purportedly incorrect members' instruction today. Reuters summarized the argument, here:

The conspiracy charge accuses Hamdan of agreeing with al Qaeda to commit murder in violation of the laws of war by transporting two surface-to-air missiles that were to be used against U.S. and allied forces in Afghanistan. In order to find him guilty on that charge, the judge instructed [members], they must find the missiles were intended for use against protected people -- civilians not involved in hostilities, soldiers removed from combat by illness or capture, or religious or medical personnel. The prosecution presented no evidence any such people were targeted. In fact they argued the missiles were intended for use against U.S. forces, who had the only planes in the area. They wanted the judge to revise the instructions and tell [members] that any attempt by an "unlawful enemy combatant" to kill a U.S. soldier in combat is a war crime.

However, after hearing arguments, the prosecution withdrew its objection, reportedly due to the defense's request for a mistrial. Dan Slater at the WSJ Law Blog covers it here.

TharThar Incident Courts-Martial

If anyone has any information on the TharThar courts-martial, beyond the short BBC and Jurist Legal News articles out here and here, I'd be interested in anything you could forward. Send it to my email at noman@caaflog.com. I found it interesting that the mainstream media really did not report these cases, which resulted in sentences in excess of 10 years for civilian killings in Iraq. Benighted system, you decide. Regardless of whether you agree with the result, the MilJus system seemed to work in these cases, though the negligent homicide verdict and sentence for the alleged ring leader seemed a little light compared to the others sentences and media reports---ahhh yes, media reports.

Government appeal in Chessani

Code 46 has filed an appeal challenging the military judge's ruling dismissing charges without prejudice in the prosecution of Lieutenant Colonel Chessani, as reported here by the North County Times.

SG's opposition to Stevenson cert petition

Here's a link to the SG's opposition to the cert petition in Stevenson v. United States, No. 07-1397.

Iraqi Civilian Deaths Court-Martial Coverage

Couple of news items in the past few weeks about potential courts-martial in incidents involving Iraqi civilian deaths.

First, MNF-I reports that two soldiers will face an Art. 32 hearing for the death of a former Iraqi detainee. According to the MNF-I press release, "The charges followed a criminal investigation into the death of Ali Mansur Mohamed, a detainee initially believed to have been released by [Coalition Forces] on or about May 16, 2008." Charges include pre-med murder and others. The Art. 32 for one will be held in Tikrit. The accused are a Staff Sergeant and First Lieutenant, the highest ranking soldier to face court-martial for a civilian killing in Iraq--at least that I know about.

Second, the on-going saga of three Camp Pendleton Marines accused of murder during the Battle for Fallujah made its way back into the news. The three are facing charges and an Art. 32 investigation for the 2004 killing, as reported here. Another former Marine, report here, is facing a late 2008 trial in US District Court. The circumstances of the killing reportedly came to light when one of the three facing court-martial charges revealed the incident during a security screening for a job at the US Secret Service (apparently an unsuccessful interview). We send our best to the Code 46 alum (and one of the most realistic App Gov't counsel I ever worked with) who will be the IO for one of the cases. Tough assignment, good luck.

To quote Train, meet Virginia

The CAAFlog clan is decamping to the Old Dominion for a week. As usual when I'm on the road, my Internet access will be diminished, at best. (When is Google releasing the Android?) A lot will happen while I'm gone, including the SG's response to the cert petition in Stevenson and the Judge Advocate General of the Navy's deadline for certifying Walker to CAAF. So I hope my CAAFlog colleagues will keep everyone informed until I'm back up on the net.

A quick look at Harris

As we noted yesterday, on Thursday, NMCCA issued an important and interesting opinion. United States v. Harris, __ M.J. ___, No. NMCCA 200401897 (N-M. Ct. Crim. App. Jul. 31, 2008). Chief Judge O'Toole wrote the unanimous opinion.

First for the less important inside baseball part that will interest NAMARA alumni. When NMCCA first decided Petty Officer Harris's appeal, Senior Judge Geiser was a member of the panel and actually wrote the opinion in the case. After the case was initially decided, the defense moved to disqualify Senior Judge Geiser and the other members of the panel because during a previous tour in the Administrative Law Division, Senior Judge Geiser had some connection to an ethics inquiry into the trial counsel's actions in Petty Officer Harris's case -- an investigation that ultimately cleared the TC and that concerned the same actions that gave rise to issues in Petty Officer Harris's appeal. CAAF then kicked the case back to NMCCA to look at the disqualification issue again with the benefit of the Administrative Law Division's files concerning the ethics investigation. United States v. Harris, 65 M.J. 485 (C.A.A.F. 2007). On remand, a new panel considered the disqualification issue and ultimately decided to reconsider the previous decision without ruling on disqualification.

NMCCA found that CAPT Geiser had minimal involvement with the ethics investigation into the TC from the Harris case:

Captain Geiser's personal role in the processing of the appellant's ethics complaint can be succinctly described as having included two actions: first, in his capacity as Division Director, he forwarded to the Rules Counsel the preliminary package assembled by Lieutenant Commander Hanna with a memo "concurring" with her recommendation that an ethics investigation should be conducted; and second, at the request of the Rules Counsel, Captain Geiser issued a letter, which he signed "by direction," appointing a senior officer in the geographic area of the complaint to conduct an investigation into its merits. Captain Geiser then detached from the Administrative Law Division and joined this court. His successor and the successor Rules Counsel received the results of the investigation months later and took final action, dismissing the appellant's complaint.

Harris, No. NMCCA 200401897, slip op. at 4-5.

While this might support a rejection of the attempt to disqualify Senior Judge Geiser, NMCCA declined to rule on that issue, NMCCA believed that to rule on the disqualification issue would require further fact-finding. Id., slip op. at 5 n.3. NMCCA observed, "Delaying disposition of this case while additional facts were gathered, however, is not in the best interests of justice." Id. So the court chose to reconsider the mertis of Petty Officer Harris's appeal, thus rendering the disqualification motion moot. Id., slip op. at 5.

With that entertaining preview out of the way, we can now get to the important main feature: NMCCA's ruling on a Crawford challenge to a drug lab report. Petty Officer Harris was the subject of a command directed urinalysis -- and rarely has there been greater reason to direct a urinalysis than provided by Harris's bizarre conduct that preceded his urinalysis. "Once obtained, the appellant's urine was forwarded to the Navy Drug Screening Lab, where it was tested in a batch containing 97 other samples from various commands, and three blind samples." Id., slip op. at 10. "Since each sample was identified by its assigned accession number, the laboratory technician testing them did not know the source command, the identity of the provider, or the basis on which the command had obtained the urine sample." Id.

The central question in Harris is whether it is better analogized to United States v. Magyari, 63 M.J. 123 (C.A.A.F. 2006) -- where CAAF held that a drug lab report resulting from a random urinalysis wasn't considered testimonial -- or United States v. Harcrow, 66 M.J. 154 (C.A.A.F. 2008) -- where CAAF held that a Virginia forensic lab's report on drug paraphernalia seized from Harcrow's residence was considered testimonial.

NMCCA ruled that even though Petty Officer Harris's urine was obtained through a command directed urinalysis, the situation was actually more like Magyari than Harcrow. NMCCA reasoned that unlike in Harcrow, the lab personnel testing Harris's urine were unaware that it was suspected to contain evidence of a crime -- to the lab personnel, it would have appeared no different than the random sample tested in Magyari. NMCCA also observed that Harris's command didn't initially view this as a criminal case. Rather, until Harris himself took a series of legally unwise steps that ultimately landed him in a court-martial, his command was trying to ad sep him.

NMCCA held "that the balance of evidence tips towards a conclusion that, despite the initial basis for obtaining the sample, and its label as 'probable cause,' the lab reports in this case remained a routine, objective cataloging of unambiguous factual matter by the prospective witnesses who prepared the reports. As such they were not 'testimonial' in nature as contemplated by Crawford, and their admission into evidence did not violate the appellant's Sixth Amendment Right to Confrontation." Id., slip op. at 12.

And for that published development of the law, the remand on the disqualification issue was worth it.

WWBJD IV: The Supremes' cert jurisdiction

For the latest installment in our What Would Bill James Do? series, we'll look at the actual experience with the Supreme Court's cert jurisdiction over CAAF decisions since it was established 25 years ago. This look will demonstrate that Biff is correct in arguing that expansion of cert jurisdiction to all cases that qualify for Article 66(c) review is extremely unlikely to help any given servicemember. That said, I still support legislation to open up a channel to the Supremes for every accused whose case is affirmed by a CCA since servicemembers should have the same infinitesimal chance to obtain relief from the Supremes that civilian defendants have.

Here are the numbers. Since passage of the Military Justice Act of 1983, the Supremes have granted plenary consideration to eight court-martial cases, resulting in a huge movement in the law in the prosecution's favor. The government won seven of the eight cases. This included two reversals of CAAF decisions favorable to a service member. In practice, even more significantly, the Supremes have thrice affirmed CAAF decisions favoring the government on grounds far more advantageous to the prosecution than those relied upon by CAAF. In the only court-martial case in which the Supremes heard oral argument and then ruled for the defense, the accused received no meaningful relief as a result.

As we'll discuss later, these eight cases don't exhaust the effects of the Military Justice Act of 1983, since several additional CAAF cases were summarily reversed and remanded, at least one of which actually resulted in sentence relief for the service member. I'll look at those below. But for now, let's look a little more closely at the eight plenary review cases.

The first case to receive plenary consideration from the Supremes under the Military Justice Act of 1983 was Solorio v. United States, 483 U.S. 435 (1987), which was the biggest victory for the government in a military justice case over the last quarter century. No doubt the same issue eventually would have reached the Rehnquist Court in a habeas challenge to a court-martial conviction, but the Military Justice Act almost certainly at least hastened the service connection requirement's demise. The next case was Weiss v. United States, 510 U.S. 163 (19994), which was probably a small net gain for the government compared to CMA's decision in the case as a result of the Supremes' adoption of a due process test for the military justice system less searching than that advocated by either Weiss's counsel or government counsel. See id. at 173-77. The third case was Davis v. United States, 512 U.S. 452 (1994), in which the Supremes upheld CAAF's rejection of a Miranda/Edwards challenge, but on grounds far more favorable to the prosecution than those upon which CMA had relied. The fourth case, Ryder v. United States, 515 U.S. 177 (1995), is the only Military Justice Act of 1983 case in which the Supremes have held oral argument in which they ruled for the defense. This is the case that invalidated the grounds on which Chief Judge Baum originally served on the Coast Guard Court, leading to his reappointment under different authority. But on remand, neither Petty Officer Ryder nor any of his fellow Coastguardsman whose cases were GVRed under Ryder received more favorable treatment during their second bite at the CGCCA apple. The next case, Loving v. United States, 517 U.S. 748 (1996), affirmed CAAF's affirmance of a military death sentence. The sixth, Edmond v. United States, 520 U.S. 651 (1997), affirmed CAAF's affirmance of the basis for Chief Judge Baum's reappointment to the Coast Guard Court. In the final two cases, the defense won at CAAF but the Supremes reversed and ruled for the government. In United States v. Scheffer, 523 U.S. 303 (1998), the Supremes reversed a CAAF decision holding that despite Military Rule of Evidence 707, an accused had a Sixth Amendment constitutional right to at least attempt to lay a foundation for an exculpatory polygraph's admissibility. And in Clinton v. Goldsmith, 526 U.S. 529 (1999), the Supremes smacked CAAF's hand for reaching into a forbidden jurisdictional cookie jar, reversing a favorable ruling for an Air Force major.

Whatever one thinks of the individual merits of these decisions -- and I agree with some and strongly disagree with others -- it's a record of incredible futility for the military defense bar. Note that in the only eight cases to receive plenary consideration under the Military Justice Act, not a single service member received any meaningful relief.

There is only one person of whom I am aware who actually received sentence relief as the result of a proceeding under authority of the Military Justice Act of 1983. In 1984, CMA affirmed the findings and sentence, which included a BCD and three months' confinement, of Spec4 Johnnie K. Goodson. United States v. Goodson, 18 M.J. 243 (C.M.A. 1984). The Supremes GVRed the case for further consideration in light of Smith v. Illinois, 469 U.S. 91 (1984). Goodson v. United States, 471 U.S. 1063 (1985). On remand, ACMR set aside the findings of guilty to four specs, affirmed the findings of guilty to other specs, and upon reassessment got rid of the BCD. United States v. Goodson, 22 M.J. 947 (A.C.M.R. 1986). Eighteen years after the Goodson GVR, the Supremes GVRed another court-martial case, this time for further consideration in light of Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). O'Connor v. United States, 535 U.S. 1014 (2002). On remand, AFCCA knocked out the findings of guilty to two of the many, many specs of which SrA O'Connor had been convicted and upheld the original sentence. United States v. O'Connor, No. ACM 33671, 2003 CCA LEXIS 251 (A.F. Ct. Crim. App. Oct. 29, 2003), aff'd, 60 M.J. 118 (C.A.A.F. 2004).

To the best of my knowledge, that's it. In a quarter of a century under the Military Justice Act of 1983, the defense bar has collectively wiped out the findings of guilty to six specs and gotten rid of one BCD. The Government, on the other hand, has reinstated one conviction, reinstated a BCD, dropped an officer from the rolls, and made the overall legal terrain considerably more friendly to the prosecution.

Given this history, a Jamesian analysis would suggest that expanding cert jurisdiction to reach more military justice cases would be more likely to produce a net gain for the government or have a neutral effect than to result in a net gain for the defense.

That said, I still support expanding cert jurisdiction so that servicemembers have comparable rights to civilian accused where, as with access to the Supreme Court, there is absolutely no military-specific rationale for a departure from the civilian norm. And I support this reform not because I think it will help the prosecution or because I hope against all available evidence that it will help the defense, but because I support the principle of equality. But it certainly wouldn't be irrational for someone to look at the actual experience under the Military Justice Act of 1983 and conclude that the game isn't worth the candle.

Finally, I think that a far more important reform would be the elimination of the subjurisdictional court-martial. Every individual -- military or civilian -- who is convicted by a special or general court-martial should have the right of access to an appellate court. (It doesn't have to be automatic, it could be by petition, but it should be a right.) It makes little sense that we give an unauthorized absentee who pleads guilty and who asks for a BCD an automatic right of appeal, but don't provide a guaranteed avenue of appeal to a sergeant major who fully contests a court-martial, is convicted against his pleas, and gets knocked down to an E-1. Eliminating the subjurisdictional court-martial conviction is a reform that I would also support in principle -- but also one that might actually help more than one servicemember per quarter century.