Tuesday, September 30, 2008

Court Martial News

With all the bail out news, and trying to determine if my kids' education fund is actually worth anything, I have been derelict in my court martial news tracking. Here are some snippets, follow the links for more coverage:
  • AP reports here that a Green Beret, Master Sgt. Joseph D. Newell, was released from PTC and restricted to Fort Bragg at the request of his counsel. Newell allegedly killed an Afghani civilian and cut off the dead Afghani's ear post-mortem. The AP report suggests that the government did not capitally refer the case, though reports from his arraignment make that seem less clear.
  • The Art. 32 hearing in the case of 1st Lt. Michael C. Behenna ended last week. Behenna and a Sergeant in his Company, both with the 101st Airborne Div., are accused of shooting and killing an Iraqi detainee according to AP reports on the Art. 32 hearing, here. Again reports on whether the case could be capitally referred are conflicting.

Sunday, September 28, 2008

BIG news: House of Representatives passes bill to expand servicemembers' access to SCOTUS

On Saturday, 27 September, the full House of Representatives took up the Equal Justice for Our Military Act, H.R. 3174. By a two-thirds majority voice vote, the House suspended the rules to take up the legislation directly on the floor and to pass it. There was a short debate during which the bill's sponsor -- Rep. Susan Davis -- spoke in favor of it and Rep. Lamar Smith, the ranking Republican on the House Judiciary Committee, argued against it. Rep. Smith opposed the bill going directly to a vote on the House floor without a hearing or committee report and noted that in a letter dated 6 February 2006, then-DOD General Counsel William J. Haynes II opposed the legislation. Norbert Basil MacLean III, who is the principal moving force behind the legislation, retorted that Rep. Smith had an opportunity to hold such hearings himself but didn't: "In the last Congress, Rep. Smith as chairman of the Subcommittee on Courts, Internet & Intellectual Property of the Judiciary Committee outright refused to permit hearings on this subject. The previous Equal Justice for Our Military Act, HR 1364 (109th Congress) sat in his committee for 1 year and 9 months with absolutely no action."

You can find the Congressional Record's account of the debate here and here.

On the Senate side, the Senate Judiciary Committee favorably reported a bill that is identical in all but name, S. 2052. But it remains to be seen when and if the full Senate will consider the legislation.

Friday, September 26, 2008

CAAF grants review of 2 Navy cases

CAAF granted review of two Navy cases on Wednesday. Here's the issue in one:


United States v. Collier, __ M.J. ___, No. 08-0495/NA (C.A.A.F. Sept. 24, 2008). NMCCA's unpublished opinion in the case is available here.

The other newly granted Navy case presents these issues:



United States v. Chatfield, __ M.J. ___, No. 08-0615/NA (C.A.A.F. Sept. 24, 2008). NMCCA's unpublished opinion in this case is available here.

Supremes docket pro se IFP military cert petition

During this year's CAAF orientation, we learned that CAAF has a practice of granting any supp in a case where the accused received confinement for at least 30 years. United States v. Swanson is a case in point. NMCCA affirmed his sentence to LWOP in this unpublished opinion. United States v. Swanson, No. NMCCA 200501593 (N-M. Ct. Crim. App. Nov. 13, 2007). CAAF granted review and summarily affirmed. United States v. Swanson, __ M.J. ___, No. 08-0280/NA (C.A.A.F. June 20, 2008) (summary disposition). Now the Supremes have docketed a pro se IFP cert petition in the case. Swanson v. United States, No. 08-6476. We have no information about the QP in the case.

NMCCA issues new published opinion

Where a command has lost the original record of trial, is it permissible to proceed on the basis of a photocopy of the original transcript? Yes, rules NMCCA today in a brief published opinion. United States v. Godbee, __ M.J. ___, No. NMCCA 200700073 (N-M. Ct. Crim. App. Sept. 25, 2008). "Based on the undisputed source and completeness of this duplicate, we will apply a presumption of regularity to its creation, authentication, and distribution." Id., slip op. at 3. Here's a link.

Thursday, September 25, 2008

Joint Service Committee proposes creating new enumerated Article 134 child pornography offense [CORRECTED]

The Joint Service Committee has published its proposed changes to the Manual for Courts-Martial, which include the creation of a new enumerated Article 134 offense of "Child pornography." Here's a link to the full proposal.

Here are the proposed maximum sentences:

(1) Possessing, receiving, or viewing child pornography. Dishonorable
discharge, forfeiture of all pay and allowances, and confinement for 10 years.
(2) Possessing child pornography with intent to distribute. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 15 years.
(3) Distributing child pornography. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 20 years.
(4) Producing child pornography. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 30 years.

Among other provisions, the proposal also suggests MCM changes to facilitate the trial of civilians accompanying the military in the field.

Written comments must be received no later than 18 November 2008. The Joint Service Committee will hold a public meeting on the proposal on 30 October 2008 in Rosslyn.

Commentary on Kennedy v. Louisiana rehearing briefing

Here's a link to Professor Yung's commentary on the Louisiana's supplemental brief in support of rehearing in Kennedy v. Louisiana. He's critical the brief, which we discussed favorably here.

And here's a link to Professor Berman's predicted outcome: the Supremes will issue "an amended opinion that adds discussion of military law, but does not change the sum or substance of the Kennedy ruling."

Wednesday, September 24, 2008

Ali CAAF Writ Appeal Add'l Thoughts -- Redux

On the occasion of the first civilian UCMJ case to come before CAAF, I must mention the timing of the writ appeal petition in Ali v. Austin (which, I will admit, was not on my mind until JO'C mentioned it) .

The writ appeal, which attempts to invoke CAAF's All Writs Act jurisdiction over a case that is pending Art. 69 review, comes while the Denedo cert. petition by the U.S. Solicitor General makes its way to SCOTUS for a fall conference---see our prior coverage here, here, and here. As our loyal readers both know, the question presented in Denedo is essentially whether CAAF has the power to review a writ, alleging ineffective assistance of counsel at trial, filed by a former service member after his court-martial has become final. In Denedo, there is no UCMJ provision addressing the power that CAAF asserted. Rather, in Denedo, CAAF premised its assertion of jurisdiction on the All Writs Act.

CAAF, in a 3-2 decision in United States v. Lopez de Victoria, 66 M.J. 67 (C.A.A.F. 2008), recently held that the government could take an interlocutory appeal to CAAF when the the Gov't lost at CCA. In Lopez de Victoria, the statute at issue (Art. 62, UCMJ) addressed only CCA jurisdiction and was silent on CAAF jurisdiction.

Both CAAF decisions, Denedo and Lopez de Victoria, have been criticized by the Solicitor General for their expansion of CAAF jurisdiction, as we noted here, though only Denedo is before SCOTUS on petition for certiorari.

The argument for CAAF jurisdiction in Ali, it could be argued, is even weaker than the argument for CAAF jurisdiction in Denedo and Lopez de Victoria. At least in Lopez de Victoria the statute (Art. 62, UCMJ) expressly mentioned CCA's authority to review a government appeal. In Denedo the fact that no statute addressed the particular power CAAF was asserting added some credibility to the All Writs Act argument. However, in Ali, the statute at issue (Art. 69, UCMJ), in fact, expressly states that CCA and CAAF do not have jurisdiction over a case that has resulted in a sub-jurisdictional sentence (i.e. less than one year of confinement awarded in Mr. Ali's case). Of course, the argument could also be made that the case for jurisdiction is the same as in Denedo because no statute specifically addresses the type of appeal at issue in Ali, a writ of habeas corpus seeking limited review of jurisdictional issues in the case.

My point in all of this is not to vote for or against CAAF jurisdiction in Ali, but, rather, seeing as how the Ali brief only devoted a page (in Courier-12 font) to the jurisdictional issue, I wonder if CAAF will order supplemental briefing to address this issue and the Golden CAAF in the room, Clinton v. Goldsmith? And what about the legislative history of the 1989 changes to Art. 69, does it suggest military appellate court intervention in the process? Ali's brief cited McPhail, a 1976 CMA case that held CMA had jurisdiction over sub-jurisdictional cases under the All Writs Act. ACCA has more recently addressed the Art. 69 writ issue in Dew v. United States, 48 M.J. 639 (A. Ct. Crim. App. 1998), but did not address the legislative history. The legislative history of the 1989 amendments to Art. 69, UCMJ seem to be more in line with Clinton v. Goldsmith than McPhail. See Dukes v. Smith, 34 M.J. 803 (N.M.C.M.R. 1991) (noting congressional concern over extension of jurisdiction under the All Writs Act in cases like McPhail). How does the logic from Dew and McPhail fare post-Clinton v. Goldsmith? How do any of these cases fare post-Denedo if SCOTUS grants cert.? All issues worth a few more paragraphs.

As far as substantive issues, I throw this out to our readers: could CAAF, if they address the merits of Ali's first argument, resolve the case on narrow factual grounds? The opinion might look something like: (1) we accept Col. Winthrop's position that a civilian cannot constitutionally be made subject to UCMJ jurisdiction in time of peace (a position nominally supported by Reid v. Covert, 354 U.S. 1 (1957) and Kinsella v. Singleton, 361 U.S. 264 (1960)); (2) however, wars of today are not black and white; there is war, there is peace, and there is a whole lot in between that sure seems like war; but (3) where ever that line may fall between war and peace, what was going on in Iraq at the time of Mr. Ali's detention and court-martial was not war.

Just thoughts. Talk amongst yourselves.

House bill to expand SCOTUS jurisdiction over military justice cases picks up two new co-sponsors

H.R. 3174 picked up two new co-sponsors yesterday: Rep. Lynn Woolsey from California and Rep. Madeleine Bordallo from Guam. That brings the number of co-sponsors to 15.

"Military law is American law"

The state of Louisiana filed its reply in support of its rehearing petition in Kennedy v. Louisiana today. Here's a SCOTUSblog piece discussing it and here is SCOTUSblog's link to the brief itself.

As the quotation from the brief in the title of this post indicates, Louisiana argues that it is appropriate to consider military justice legislation when conducting jurisdictional nose counting. Louisiana's Supplemental Brief at 2. Even more, since Congress enacts military justice legislation, such statutes count as Cyrano de Bergerac-quality noses. See id. at 2-3 ("This Court has never found a 'national consensus' against capital punishment for a particular offense . . . when Congress, consisting of Representatives from all 50 States, has affirmatively authorized such punishment.") (quoting Acting SG's brief at 4).

Beyond this and other statements of respect for the military justice system, the brief engages in nuanced discussion of military law reflecting great familiarity with the system. In one passage sure to warm any military litigator's heart, Louisiana reminds the Supremes that their predecessors on the bench relied in part on the UCMJ when deciding Miranda. Id. at 7. The brief also knowledgeably discusses CMA and CMR decisions dealing with Coker's effect on the military justice system, id. at 17, and calls out Petitioner's counsel for ignoring a 1989 military capital prosecution for rape, id. at 14-15.

The brief's most devastating point is delivered even deeper in the weeds. Petitioner's brief opposing rehearing argued that neither of the DOD reports that led to the National Defense Authorization Act for Fiscal Year 2006's Article 120 amendments "mentions the penalty for child (or adult) rape in its executive summary." Petitioner's Brief at 9-10. But if one actually reads past the executive summary, Louisiana's brief points out, the Joint Service Committee's report on sex crimes and the UCMJ includes a discussion about Coker and its effect on capital punishment for rape generally and for child rape specifically. Louisiana's Supplemental Brief at 12 (citing JSC Report at 74-75). As a matter of advocacy, that point must have been particularly delicious for Louisiana's counsel, since Petitioner's counsel had lit them up for allegedly overplaying the Joint Service Committee report's treatment of the Louisiana statute authorizing capital punishment for child rape. Petitioner's Brief at 10. Yet, as Louisiana's counsel retort, page 75 of the JSC report expressly discussed the 1995 amendment to Louisiana law that allowed capital punishment for child rape. Louisiana's Supplemental Brief at 12.

What happens next? As the greatest blog on Earth (SCOTUSblog) reports: "The Justices are scheduled to consider the rehearing petition at their private Conference on Monday. If rehearing is granted, word of that may become known as early as next Tuesday. A denial might not become known until Monday, Oct. 6, at the formal opening of the new Term." We will, of course, be on the lookout for developments and post a link when more news is available.

Tuesday, September 23, 2008

Dossey explained

Yesterday we noted that the petition for grant of review challenging the Navy-Marine Corps Court's decision in United States v. Dossey, 66 M.J. 619 (N-M. Ct. Crim. App. 2008), had been dismissed. Now we've learned why. Petty Officer Dossey is being administratively separated in lieu of court-martial.

Military judge denies government's reconsideration motion challenging Article 120 ruling

Back on 15 August, we discussed Judge Beal's ruling in a Navy court-martial holding that Article 120's burden-shifting provisions are unconstitutional. Today, Judge Beal issued an order denying the government's reconsideration request in the case, United States v. Fairley. We've posted that ruling here.

Civilian Court-Martial Appeal Challenging the Constitutionality of Art. 2(a)(10), UCMJ

Ask and ye shall receive. Here is the writ appeal petition filed on 18 Sep 08 by Mr. Ali challenging UCMJ jurisdiction in his case. See our prior coverage here. Mr. Ali is challenging jurisdiction on a number of fronts. Some are expected, that Congress exceeded its authority in amending Art. 2(a)(10) and permitting his court-martial, and others are not, arguing that because no implementing regulations are in place the Court does not have jurisdiction. I'll post more substantive analysis later. Enjoy!

Monday, September 22, 2008

So much news, so many unanswered questions

Today's update of CAAF's online Daily Journal included quite a bit of news. The No Man has already posted below about the biggest story -- a writ appeal filed in the case of a civilian accompanying the forces who was court-martialed in Iraq.

In other news:

1. Government rolls over on "attempted drunk on duty" case. We previously noted the grant in United States v. Snyder, No. 07-0765/NA, which involved a question that would have befuddled even Colonel Winthrop: "WHETHER THE SPECIFICATION UNDER THE ADDITIONAL CHARGE STATES AN OFFENSE FOR ATTEMPTED DRUNK ON DUTY IN VIOLATION OF ARTICLE 80, UNIFORM CODE OF MILITARY JUSTICE (UCMJ)." Code 46 just made that case go away, conceding that the evidence wasn't legally sufficient to support the conviction. See United States v. Snyder, __ M.J. ___, No. 07-0765/NA (C.A.A.F. Sept. 18, 2008). CAAF accepted the concession, cancelled oral argument, set aside the finding of guilty to that offense and the sentence, and kicked the case back to NMCCA to either reassess the sentence or order a sentence rehearing. So some overeager Navy prosecutor, not happy with mere use and distribution of methamphetamine, had to tack on an attempted drunk on duty charge as well. The reward for that creativity is that two years and three months later, the case remains alive and will now surely kick around the appellate system for many more months until the adjudged bad-conduct discharge is finally executed.

2. Dossey appeal dismissed! I've been very critical of NMCCA's handling of the appeal in United States v. Dossey (and rightfully so). NMCCA first held 3-0 that it didn't have jurisdiction on an Article 62 appeal of a mistrial ruling. Then it reversed course and held 2-1 that it did. United States v. Dossey, 66 M.J. 619 (N-M. Ct. Crim. App. 2008). Then, despite the panel's reversal of itself, departure from established NMCCA precedent, and divided opinion, NMCCA denied en banc reconsideration. United States v. Dossey, NMCCA No. 200700537 (N-M. Ct. Crim. App. June 11, 2008) (en banc) (order). Worse yet, as we discussed here, it sought to justify its denial of en banc reconsideration by citing a Second Circuit opinion that actually indicated en banc rehearing was necessary because one of the court's judges disagreed with the panel opinion that departed from the court's precedent. But there was some hope to lessen the precedential value of NMCCA's dubious published opinion when a petition for grant of review was filed at CAAF on 12 June 2008. But on 17 September, CAAF granted the Government's motion to dismiss the petition, which also mooted out a defense motion to withdraw the petition. I have no idea what happened to result in the case's dismissal and I have yet to wring any info out of my sources. I'll fill you in when I find out.

3. Government writ appeal denied. We previous discussed Code 46's writ appeal seeking to force Judge Harty to enter a ruling on the record after he issued a ruling by e-mail. The Government wanted to appeal the underlying ruling. The need for extraordinary relief seemed to be substantially dulled, though, since the Government's separate Article 62 appeal was apparently timely filed even if measured from the date of the e-mailed ruling. NMCCA denied the Government's petition for extraordinary relief in a one-page order. Now CAAF has even more summarily denied the Government's writ appeal. United States v. Harty, __ M.J. ___, Misc. No. 08-8024/NA (C.A.A.F. Sept. 17, 2008).

4. A couple of grants. CAAF granted review of the following issue: "WHETHER THE MILITARY JUDGE ERRED BY PERMITTING THE CONVENING AUTHORITY TO WITHDRAW FROM HIS PRETRIAL AGREEMENT WITH APPELLANT DESPITE APPELLANT BEGINNING PERFORMANCE OF PROMISES CONTAINED IN THE AGREEMENT." United States v. Dean, __ M.J. ___, No. 08-0431/AR (C.A.A.F. Sept. 19, 2008). As seems increasingly typical with Army cases, I can't find any electronic trace of the CCA opinion. The other grant is a specified issue in a Navy case: "WHETHER IT WAS PLAIN ERROR FOR THE MILITARY JUDGE TO ADMIT AT SENTENCING A STIPULATION OF EXPERT TESTIMONY PERTAINING TO SEX OFFENDER TREATMENT IN MILITARY CORRECTIONAL FACILITIES WHERE THE EXPERT, WHO DID NOT PERSONALLY EVALUATE APPELLANT, OPINED GENERALLY ABOUT MINIMAL AND OPTIMAL TERMS OF CONFINEMENT FOR A PERSON DETECTED OF POSSESSING CHILD PORNOGRAPHY." United States v. Campos, __ M.J. ___, No. 08-0409/NA (C.A.A.F. Sept. 19, 2008). NMCCA's unpublished opinion in the case, which addressed the specified issue, is available here. United States v. Campos, No. NMCCA 200602523 (N-M. Ct. Crim. App. Jan. 17, 2008).

Did I miss anything of interest?

BREAKING NEWS: Writ from First Ever Amended Art. 2, UCMJ Civilian Court-Martial

It appears the former civilian contractor that pled guilty to UCMJ charges and received a sub-jurisdictional sentence, as covered on CAAFlog extensively, including here and here, has filed a writ appeal. From the September 18, 2008 Daily Journal:
Misc. No. 09-8001/AR. Mohammad Allaa ALI, Appellant v. Lieutenant General Floyd Austin, Convening Authority, the United States Army & the United States, Appellees. CCA 20080678. Notice is hereby given that a writ-appeal petition for review of the decision of the United States Army Court of Criminal Appeals on application for extraordinary relief was filed under Rule 27(b) on this date.
Again, I think we scooped the world. Would be a greater scoop if we had the pleadings, anyone, throw me a bone here?

Sunday, September 21, 2008

CAAFlog turns two

No, we didn't record a double play in a military justice blog softball tournament. Tomorrow is the second anniversary of our first post.
♪ Happy birthday to us. Happy birthday to us . . . . ♪ (The Kabul Klipper, our resident musicologist, should feel free to insert the correct notes.)

Saturday, September 20, 2008

More cases arising from theaters of operation

As Jurist reports, the Army Special Forces command issued this press release on Thursday announcing the arraignment of Master Sergeant Joseph D. Newell on charges alleging that he murdered an unidentified Afghani and then cut off one of his ears near Hyderabad, Afghanistan in March 2007.

The actual trial is currently scheduled to start on 7 January 2009.

Meanwhile, Stars and Stripes is reporting that the "Army on Tuesday charged three Germany-based soldiers with premeditated murder in connection with the deaths of Iraqi detainees from two separate incidents in early 2007." The article continues, "First Sgt. John E. Hatley, 40; Sgt. 1st Class Joseph P. Mayo, 27, and Sgt. Michael P. Leahy Jr., 26, all formerly assigned to 1st Battalion, 18th Infantry Regiment, were charged under the Uniform Code of Military Justice with one specification each of premeditated murder, conspiracy to commit premeditated murder and obstruction of justice, stemming from an incident in March or April 2007 in or near Baghdad, according to an Army statement."

Friday, September 19, 2008

General Hartmann gets a new job

Air Force Brigadier General Thomas W. Hartmann has been reassigned from his position as Legal Adviser to the Convening Authority for the Department of Defense Office of Military Commissions.

According to the Associated Press, Gen. Hartmann has been named to the newly created position of director of operations, planning and development for military commissions. Depending on the nature and extent of his involvement with future trials, the transfer for Hartmann -- who has been twice been ordered removed from post-trial participation in detainee cases and who was described variously by senior military officials involved in detainee matters as "abusive, bullying, and unprofessional," and a "cancer" -- may smooth the way for the prosecution of Gitmo detainees.

It is unclear, however, what part Gen. Hartmann will play in upcoming events at Guantanamo Bay, and defense counsel who were expected to give the general a starring role in various motions for relief may still have the opportunity to do so: according to the AP, Gen. Hartmann said he is proud of the way he has helped move the trials forward and intends to keep doing so in his new role.

Senate authorizes payments to servicemembers unjustly convicted by courts-martial

The Senate version of the National Defense Authorization Act for Fiscal Year 2009 includes an odd provision: completely discretionary authority for SECDEF or the service secretaries to pay "moneys" to "a member or former member of the armed forces [who] has suffered imprisonment as a result of an injustice or error of the Department of Defense or any of its employees acting in an official capacity following conviction by a court-martial." Senate Bill 3001, § 582.

Does anyone know who proposed this or what led to its inclusion in the bill?

U.S. district judge rejects personal jurisdiction challenge to MEJA prosecution

Steven Green is a former soldier being tried for war crimes in a capital case in the United States District Court for the Western District of Kentucky. He was allegedly involved in the rape of a girl and the murder of the girl and her family in Yousifiyah, Iraq. He was discharged from the Army in May 2006, arrested in Jun 2006, and then indicted on 16 counts in a Military Extraterritorial Jurisdiction Act prosecution.

Courtesy of Gene Fidell, here's a link to the district court's 28 August 2008 memorandum opinion rejecting Mr. Green's challenge to the court's personal jurisdiction to try him. United States v. Green, No. 5:06-CR-19-R (W.D. Ky. Aug. 28, 2008) (mem.).

MEJA provides that "[n]o prosecution may be commenced against a member of the Armed Forces subject to [the UCMJ] under this section unless -- (1) such member ceases to be subject to [the UCMJ]; or (2) an indictment or information charges that the member committed the offense with one or more other defendants, at least one of whom is not subject to [the UCMJ]." 18 U.S.C. § 3261(d). Mr. Green argued that he had never been properly discharged from the Army and so was ineligible to be prosecuted under MEJA since he was still subject to the UCMJ.

The district court disagreed in an opinion relying heavily on CAAF precedent. It held that the command intended to discharge Green and had actually done so.

Thursday, September 18, 2008

CAAF specificies interesting evidentiary issues

On Tuesday, CAAF specified the following two issues:



United States v. Clayton, __ M.J. ___, No. 08-0417/AR (C.A.A.F. Sept. 16, 2008).

I can't find ACCA's decision in the case.

Iraqi Detainee Murder Cases [UPDATED] Update

The NY Times and Stars and Stripes report that premeditated murder charges were preferred against 3 soldiers for the alleged killing of 4 Iraqi detainees in Baghdad in April 2007. The three soldiers were identified in Art. 32 hearings held last month as the shooters in the killings, see CAAFlog coverage here. Two of the three accused apparently are also accused of another Iraqi civilian murder. Stars and Stripes reports:
The Army also charged [First Sgt.] Hatley and [Sgt.] Leahy with premeditated murder and conspiracy to commit premeditated murder for a separate incident that occurred in or near Baghdad in early January 2007, according to the Army release. Leahy also faces a specification of accessory after the fact stemming from that incident.
Two other soldiers waived their Art. 32 hearings in relation to the same incident, one appearing before a court-martial on Thursday, as reported here. In other news, the Art. 32 hearing for Sgt. Warner, who is also accused of killing an Iraqi detainee in a separate incident, concluded this past weekend, as reported on JURIST.

UPDATE: Spc. Ramos, who we noted above was appearing before a court-martial today, apparently pled guilty in exchange for his testimony against the alleged shooters in the killing of 4 Iraqi detainees alongside a Baghdad canal in April 2007. Ramos was sentenced by an unidentified Army military judge. The government asked for 5 years and a DD; the defense asked for a reprimand; the judge awarded 7 months and a DD. According to news reports, here and here, Ramos' role in the killings was to "stand guard" in his HMMWV's gun turret while the three NCOs carried out the killings---how's that for a squid summary of Army stuff?

Wednesday, September 17, 2008

Supreme Court filings focus on military death penalty system

As discussed in this highly informative piece on SCOTUSblog, lawyers for Patrick Kennedy and the Acting SG filed the briefs today that the Supreme Court requested in Kennedy v. Louisiana to address whether the Supremes should rehear the case. Of course, the Acting SG said yes and Kennedy's lawyers said no. SCOTUSblog provides a great analysis of the implications of this for the Kennedy case itself. I'm more interested in the briefs' treatment of military law.

Kennedy's brief displayed unfamiliarity with the military justice system. Any number of military justice experts would have made themselves available to help Kennedy's counsel, but it's clear that no such assistance was accepted. Since petitioner's counsel knew that the Acting SG's brief would be prepared with the assistance of the DoD General Counsel's office -- and, in fact, two highly distinguished retired judge advocates had signed onto the Acting SG's previous motion for leave to file a brief in support of rehearing before also signing onto today's brief from the Acting SG -- why wouldn't petitioner's team have sought out reinforcements to keep from being outgunned on the military justice flank? For whatever reason, they didn't and it shows.

What is probably the most significant problem arises in the petitioner's brief's desuetude argument. The petitioner argues at one point that "[t]he military, to our knowledge, has not sought to impose the death penalty for rape in over forty years." Petitioner's Brief in Opposition at 3. The brief later argues, "The military last executed someone for rape in 1961, and it apparently has not even sought – let alone obtained – such a sentence since." Id. at 7-8. Wrong. As a published CAAF decision makes clear, the Navy sought the death penalty in a court-martial of a petty officer for rape and attempted murder in 1989. United States v. Straight, 42 M.J. 244, 247 (C.A.A.F. 1995). But because the members' finding of guilty to the death-eligible offense was not unanimous, id., death was no longer an authorized sentence after findings. Given that this information is available in a published opinion and was mentioned in a law review article published two years ago, see 189 Mil. L. Rev. 1, 13 n.45, it's surprising that petitioner's brief would make such a major mistake.

That large mistake is immediately followed by a smaller one. The brief states, "There are currently nine people on the military’s death row; all nine committed premeditated murder or felony murder." Petitioner's Brief in Opposition at 8. Again, wrong. If we are using "death row" to refer to a physical place in the United States Disciplinary Barracks, there are currently four men there. If we are using "the military's death row" to refer metaphorically to the number of servicemembers currently under a death sentence, then the actual number is five. (One person, Kenneth Parker, is under a military death sentence but is currently confined at Camp Lejeune.) Nine is the number of servicemembers currently under death sentences plus the number of servicemembers whose death sentences have been overturned but who might still be resentenced to death. The phrase "currently . . . on the military's death row" isn't descriptive of that more nuanced concept. It would have been easy to provide a completely accurate and more helpful statistic: all 15 servicemembers sentenced to death under the current military death penalty system were convicted of premeditated murder, felony murder, or both. No doubt had the petitioner's counsel consulted with a military justice expert, he or she would have steered them clear of such inaccuracies.

But wait; there's more. The brief seems to make a fairly major mischaracterization when it contends that "[t]he President's reaffirmation of death as a permissible punishment appears within the 800-plus-page Manual for Courts-Martial." Petitioner's Brief in Opposition at 9. Almost any military justice practitioner could have told petitioner's counsel that that's wrong. President Bush didn't reissue the MCM in toto in September 2007 with the rape amendments interspersed among more than 900 other pages of text. Rather, he issued an Executive Order with an annex that takes up 23 MCM pages that was devoted almost entirely to the new military rape statute. Especially since Congress had expressly authorized the President to choose whether to discontinue death as an authorized punishment for rape or rape of a child, the presidentially prescribed death penalty provision wasn't a needle in a haystack; it was a pitchfork in a hay bale.

The brief also features what seems to be an analytic lapse. The brief posits: "The important point for present purposes, however, is that this Court in Kennedy asked the right question – namely, whether petitioner is subject to the death penalty under federal law – and gave the right answer: he is not. Nothing more was, or is, required." Petitioner's Brief in Opposition at 7. But is that really what the Supremes do when they engage in jurisdictional nose counting? The question isn't whether Patrick Kennedy is subject to the death penalty under, say, Maryland law; he isn't -- not only because Maryland doesn't authorize a death sentence for rape of a child but also because Maryland has no jurisdiction over Patrick Kennedy's offenses. So the jurisdictional nose counting process doesn't ask how many jurisdictions can actually execute Patrick Kennedy for the particular offenses of which he was convicted; rather, it asks how many jurisdictions could execute someone who committed comparable offenses within that jurisdiction.

The brief suffers from minor problems as well, such as referring to the National Defense Authorization Act as an "appropriations bill," id. at 9, listing Article 120 of the UCMJ as a "Federal Rule" rather than a "Statutory Provision," id. at iv-v, and calling ¶45.f.(1) of Part IV of the MCM "Article 120(f)(1)." Id. at 3, 9 n.5. Again, had petitioner's counsel consulted with any competent military justice litigator, those would have been cleaned up.

Finally, the brief drops a footnote advancing what seems to be an untenable argument. Footnote 5 questions "whether the President’s continuation in Article 120(f)(1) [sic] of the Manual for Courts-Martial of the possibility of punishing rape with the death penalty is sufficient to authorize such punishment. The Uniform Code of Military Justice (UCMJ) provides that a court-martial may impose capital punishment only when 'the penalty of death [is] specifically authorized by this chapter.' 10 U.S.C. § 818 (emphasis added). Now that the NDAA has removed any reference to the death penalty from the UCMJ’s rape provisions, the UCMJ itself no longer 'specifically authorize[s]' such punishment." Id. at 9 n.5. That overlooks entirely the key provision in the National Defense Authorization Act for Fiscal Year 2006 that formed the basis for the rehearing petition. In that legislation, Congress stated:

Until the President otherwise provides pursuant to section 856 of title 10, United States Code (article 56 of the Uniform Code of Military Justice), the punishment which a court-martial may direct for an offense under section 920 of such title (article 120 of the Uniform Code of Military Justice), as amended by subsection (a), may not exceed the following limits:

(1) Subsections (a) and (b).-- For an offense under subsection (a) (rape) or subsection (b) (rape of a child), death or such other punishment as a court-martial may direct.
National Defense Authorization Act for Fiscal Year 2006, § 552(b), 119 Stat. 3136, 3264 (2006).

Since the President has not provided otherwise, this express statutory authorization for the death penalty is in force. This provision isn't trumped by Article 18; rather, to the extent that they are inconsistent the NDAA provision prevails over Article 18 because it is both the more specific and the more recent statute. See generally In re Northwest Airlines Corp., 483 F.3d 160, 168 (2d Cir. 2007).

By comparison, the Acting SG's brief was uneventful. Its treatment of zombie statutes is a bit problematic. The SG writes that "in Coker, the plurality's conclusion that capital punishment for the rape of an adult woman was unconstitutional accorded with Congress's silence on the subject at that time. See 433 U.S. at 593-596." Brief for the United States at 5. Of course, when the Supremes decided Coker v. Georgia in 1977, Article 120 of the UCMJ remained on the books with its provision that rape was punishable by death. The Acting SG attempts to escape from this inconvenient parallel to Kennedy by arguing: "In Coker, Congress was silent on the pertinent question because it had not reauthorized the death penalty for rape after this Court’s decision in Furman v. Georgia, 408 U.S. 238 (1972), which 'invalidated most of the capital punishment statutes in this country, including the rape statutes.' Coker, 433 U.S. at 593 (plurality opinion)." Id. at 5 n.2. He then concludes: "The Court thus has never held the death penalty unconstitutional for an offense for which Congress has authorized such punishment at the time of its decision." Id. at 5-6. But at the time of Coker, Congress had authorized death as a punishment for rape and no court had held that Furman invalidated the military death penalty system, though Justice Blackmun had noted in his Furman dissent that the case "jeopard[izes], perhaps, . . . the death penalty provisions in various Articles of the Uniform Code of Military Justice." Furman v. Georgia, 408 U.S. 238, 412 (1972) (Blackmun, J., dissenting). And, interestingly, the Supremes ultimately held that there was no necessity for congressional action to revive the military death penalty system post-Furman. See Loving v. United States, 517 U.S. 748 (1996).

The SG also seems to gild the lily by arguing that "Congress recently enacted legislation authorizing capital punishment for child rape by an overwhelming 374-to-41 vote in the House . . . and a voice vote in the Senate." Brief for the United States at 6. While that is literally correct, it would be silly to suggest that 374 members of the House were endorsing Section 552(b) of the bill. It seems improbable that 374 members of the House even knew that Section 552(b) was in the bill.

The Acting SG's brief also contains an ingenious argument that congressional legislation about the military justice system shouldn't be excluded from jurisdictional nose-counting in part because such legislation now applies to some civilians in contingency operational areas. Id. at 7.

The next step in the case will be the filing of Louisiana's reply brief, which is due by 1400 next Wednesday, 24 September. We'll look at that brief once it's filed. And then, SCOTUSblog tells us, the "Court is scheduled to consider the rehearing plea at its Conference on Monday, Sept. 29, the first of the new Term. That could mean some action might be known as early as Tuesday, Sept 30."

August Army Lawyer published

The August issue of the Army Lawyer is now online here. It includes a couple of articles of interest to military justice types:

Major Michael L. Kanabrocki, Revising United States v. Allen: Applying Civilian Pretrial Confinement Credit for Unrelated Offenses Against Court-Martial Sentences to Post-Trial Confinement Under 18 U.S.C. § 3585(b)(2), Army Law., Aug. 2008, at 1.

Colonel Louis J. Puleo, Bulletproof Your Trial: How to Avoid Common Mistakes that Jeopardize Your Case on Appeal, Army Law., Aug. 2008, at 53.

Tuesday, September 16, 2008


Things are quiet tonight, on the eve of the term's first oral argument. I just have a bit of old business to report. Last Wednesday, CAAF granted review of an Army IAC case, summarily set aside ACCA's opinion and remanded the case for further proceedings during which the trial defense counsel is to provide an affidavit responding to the IAC allegations. United States v. Brasington, __ M.J. ___, No. 08-0479/AR (C.A.A.F. Sept. 11, 2008). As is all-too-typical with ACCA decisions, I can find neither electronic hide nor hair of its opinion that was set aside. Here's the issue that CAAF granted in the case:


Monday, September 15, 2008

CGCCA restores partial web presence

A kind anonymous soul has provided us with this new link to the Coast Guard Court of Criminal Appeals' decisions. The good news is that on the 2008 opinion page, 5 of the 8 opinions are actually accessible. The bad news is that 3 of the links are broken and the most recent opinion actually available on the site is dated 30 April 2008. I understand from other sources that CGCCA has issued an opinion as recently as 29 August 2008. (United States v. McLeod, No. 1262.) The last two CGCCA cases we discussed appear to be the appalling en banc decision in Bonilla, which was issued on 6 June 2008, and the throw-away published decision in Gomez, issued the same day. United States v. Bonilla, 66 M.J. 654 (C.G. Ct. Crim. App. 2008) (en banc); United States v. Gomez, 66 M.J. 663 (C.G. Ct. Crim. App. 2008). Curiously, Bonilla is on the new CGCCA web site with a broken link while Gomez, which was issued the same day, isn't there at all.

Have counsel litigating Coast Guard cases been flying blind as to new case law issued over the last three months? Can anyone explain what's happened to the CGCCA web site?

Fall Military Law Review published

TJAGLCS has published the 50th anniversary edition of the Military Law Review. Here's a link.

Military judge rules Col Murphy can't be punished

COL Henley, the Army's chief trial judge who is presiding over the trial of Air Force Col Michael D. Murphy, has ruled that Col Murphy can't be sentenced to any punishment. Judge Henley issued that ruling in response to the government's refusal to provide the defense with access to classified information concerning Col Murphy's service at the White House Military Office. The government has announced its intention to appeal.

Here's a link to a publicly available Air Force Times article about the ruling. Today's print version has a slightly longer article about the ruling.

Saturday, September 13, 2008

Interesting analysis of Kennedy v. Louisiana rehearing petition

Professor Yung of John Marshall Law School -- the host of the Sex Crimes blog -- has written an interesting analysis of Kennedy v. Louisiana, 128 S. Ct. 2641 (2008), and the state of Louisiana's and Acting SG's efforts to have the Supremes revisit the opinion. Here's a link to his blog's discussion of his analysis. The blog post includes a link that will allow you to click through to the article itself. (Here's a link that may or may not lead directly to the article; I had to register with SSRN before I could get it to work.)

(For those of you following Kennedy closely, Professor Yung also provides a Kennedy v. Louisiana resource page, available here.)

Professor Yung makes the interesting point that Kennedy v. Louisiana's exclusion of the military justice system from its survey of U.S. criminal justice systems was consistent with every previous Supreme Court opinion using a nose-counting approach to analyzing the Eighth Amendment's Cruel and Unusual Punishment Clause. He writes: "The United States Supreme Court has issued twenty-eight opinions, including Kennedy, that have utilized the evolving standards of decency approach in analyzing claims under the Cruel and Unusual Punishment Clause of the Eighth Amendment. While several Court opinions mentioned the military or the UCMJ, not one opinion considered the military's criminal code as part of the objective indicia in determining the national consensus." (footnote omitted). And, he emphasizes, that includes Coker v. Georgia, 433 U.S. 584 (1976), the Supremes' previous Eighth Amendment analysis of rape as a capital offense.

Professor Yung goes on to argue that the UCMJ should be excluded from assessments of evolving standards of decency because military justice is sui generis. He argues: "When Congress enacts a law to modify the UCMJ, it only reflects a national consensus of the legitimacy of such a modification in the military -- not to society at large."

He concludes that while critics of the Kennedy decision might challenge the entire nose-counting approach to interpreting the Eighth Amendment, "to use the omission of the UCMJ amendment as a Trojan horse for the larger substantive argument is simply unsupportable as a matter of law, history, and practice."

AFCCA issues published search and seizure decision

On Friday, AFCCA issued a published search and decision. United States v. McMahon, __ M.J. ___, No. ACM S31268 (A.F. Ct. Crim. App. Sept. 12, 2008). Here's a link.

The central issue in McMahon arose because neither the magistrate nor the OSI agent who obtained the search authorization from the magistrate was available to testify at trial. And the affidavit seeking the search authorization didn't identify the informant who provided the information that led the magistrate to authorize the seizure of A1C McMahon's urine for testing.

The military judge denied a defense suppression motion. And while AFCCA's opinion was fairly critical of the trial judge's approach to the issue, it conducted a de novo analysis and concluded the informant's credibility was sufficiently corroborated to provide adequate probable cause. AFCCA placed "considerable significance on the fact that the source had successfully executed a buy-walk drug purchase for the AFOSI. His ability to execute the purchase within a day of initially identifying the appellant is significant." Id., slip op. at 5. (The opinion defines a "buy-walk drug purchase" as an informant purchasing drugs and returning them to the controlling law enforcement agent with no arrest taking place at the time of the sale. Id., slip op. at 2 n.4.) The court also reasoned that "[e]ven if AFOSI agents had told the magistrate the name of the informant, it is probable that he would have had no personal knowledge of this particular Airman First Class and would have relied on exactly the same factors we do in concluding the informant was reliable." Id., slip op. at 5.

Expanding the Supremes' statutory cert jurisdiction over military justice cases

On the same day that the Senate Judiciary Committee unanimously voted to favorably report S. 2052 to the full Senate, the bill's House counterpart -- H.R. 3174 -- picked up a new co-sponsor: Rep. Robert Wexler (D-Fla.).

Friday, September 12, 2008

Denedo watch

The Supremes have extended Denedo's counsel's period for responding to the Acting S.G.'s cert petition until 27 October 2008. United States v. Denedo, No. 08-267.

Thursday, September 11, 2008

See for yourself

Earlier today, the No Man reported on today's Senate Judiciary Committee passage of the Equal Justice for United States Military Personnel Act, which would give the Supremes statutory cert jurisdiction to review any case granted OR DENIED by CAAF. Here's a link to the bill's scintillating consideration by a committee of the organization that likes to call itself the world's greatest deliberative body. The committee's consideration of S. 2052 starts at 35:28 and the bill has won unanimous approval without amendment by 36:00.

S.2052 Passes Senate Judiciary Committee

S. 2052, the Equal Justice for United States Military Personnel Act of 2007, passed the full Senate Judiciary Committee today without objection. Next stop, back to the clerk for placement on the calendar (but, I never really got that whole process in Civics class).

Wednesday, September 10, 2008


CAAF has granted review of at least two cases so far this week. On Monday, it granted review of this specified issue:

United States v. Brown, __ M.J. ___, No. 08-0261/AR (C.A.A.F. Sept. 8, 2008). ACCA's unpublished opinion in the case is available here.

Today, CAAF granted review of this issue: "WHETHER THE MILITARY JUDGE ERRED IN DENYING APPELLANT'S MOTION TO SUPPRESS HIS HAIR TEST RESULTS." United States v. Rogers, __ M.J. ___, No. 08-0518/AF (C.A.A.F. Sept. 10, 2008). AFCCA's unpublished decision in the case is available here. The Air Force Court had split 2-1 in the case, with Judge Heimann favoring reversal.

Shameless Self-Promotion: CAAFlog Media

Here are links to media covering SCOTUS's request for supplemental briefing in Kennedy v. Louisiana that mention our esteemed leader: WaPo, ABC News, WSJ, Houston Chronicle, and the list continues. I won't say how many call him an Air Force civilian lawyer rather than a Colonel in the Marine Corps Reserves. Reserve weekends must be a lot of fun for CAAFlog. Have they bought you baby blue shirts yet?

Here is an amusing note below the WSJ article, that I am sure made the SG's office very happy.

Corrections & Amplifications

The Justice Department filed a motion with the Supreme Court in Kennedy v. Louisiana asking the court to reconsider its decision after it was disclosed that the state failed to mention a relevant federal statute. This article about the court's possible reconsideration of the case incorrectly said the department filed a brief with the court before the court's opinion in June.

Tuesday, September 09, 2008

Equal Justice for United States Military Personnel Act picks up a new cosponsor

Yesterday Senator Clinton signed on as a co-sponsor of S. 2052, which would allow convicted servicemembers to seek cert regardless of whether CAAF granted or denied their petitions. Here's a link to S. 202's cosponsor page.

(h/t NBM3)

Monday, September 08, 2008

AFCCA joins the Magyari vs. Harcrow row

In a published opinion, an AFCCA panel split 2-1 today in holding that a lab tech's report identifying controlled substance metabolites in the urine of a suspect who provided a sample to law enforcement agents is not a testimonial statement for Crawford v. Washington purposes. United States v. Blazier, __ M.J. ___, No. ACM 36988 (A.F. Ct. Crim. App. Sept. 8, 2008).

The case basically presented the same issue as NMCCA's recent published opinion in United States v. Harris, __ M.J. ___, No. 200700531 (N-M. Ct. Crim. App. July 31, 2008), though Senior Judge Brand's majority opinion in Blazier didn't cite Harris. In Harris, NMCCA held that a drug lab's analysis of a command directed urine sample is more like the analysis of a random urinalysis at issue in United States v. Magyari, 63 M.J. 123 (C.A.A.F. 2006), than the targeted lab analysis of drug paraphernalia at issue in United States v. Harcrow, 66 M.J. 154 (C.A.A.F. 2008).

In Brazier, AFCCA similarly contrasted Magyari and Harcrow. And, similar to NMCCA's conclusion in Harris, the Brazier majority concluded that the lab technicians analyzing SrA Brazier's urine as part of a much larger batch without any knowledge that the individual who provided that particular sample was a suspect were more like the lab techs in Magyari than those in Harcrow.

Judge Jackson dissented. Relying on a Minnesota Supreme Court opinion, he didn't believe that the lab technicians' perspective was dispositive. Blazier, No. ACM 36988, slip op. at 4-5 (Jackson, J., concurring in part/dissenting in part) (citing State v. Caulfield, 722 N.W.2d 304 (Minn. 2006). He found that the primary purpose of the lab technicians' statements were to prove a past offense for purposes of a criminal prosecution and were thus testimonial.

Both Harris and Blazier are prologue to the Supreme Court's argument on 10 November in Melendez-Diaz v. Massachusetts, 07-591. The QP in Melendez-Diaz is "Whether a state forensic analyst's laboratory report prepared for use in a criminal prosecution is 'testimonial' evidence subject to the demands of the Confrontation Clause as set forth in Crawford v. Washington, 541 U.S. 36 (2004)." Melendez-Diaz may ultimately lead some military appellate court to reconsider Harris and Blazier. Of course, counsel for both Petty Officer Harris and SrA Blazier will have to try to keep those cases on direct appeal until Melendez-Diaz is decided in case the Supremes overturn Denedo, which might prevent military appellate courts from reversing their decisions in those cases if Melendez-Diaz turns out inconsistently. While a civilian criminal defendant could maneuver such a case to be held at the Supremes pending Melendez-Diaz's outcome, Petty Officer Harris and SrA Blazier have no such guarantee, since CAAF controls their access to the Supremes. If they file petitions for grant review and if CAAF denies them, their cases could become final before the Supremes rule in Melendez-Diaz, and they could then be left testing Melendez-Diaz's retroactive effect under Teague v. Lane if it then turned out in their favor and they had to challenge their court-martial conviction collaterally. That's yet another example of how the current quirky SCOTUS statutory cert jurisdiction over military justice cases disadvantages servicemembers compared to their civilian counterparts. Of course, as we previously noted, the Senate Judiciary Committee will be considering a bill this Thursday that would rectify that disparity.

CGCCA still UA from the Internet

It's been almost a month since I've been able to access CGCCA opinions. Does anyone have a link for the court's opinions that actually works? Does anyone know if the court has issued any published opinions since 11 August?

Supremes invite supplemental briefing in Kennedy v. Louisiana

As reported by SCOTUSblog this evening, the Supreme Court has invited counsel for Patrick Kennedy to file a brief addressing the state of Louisiana's rehearing petition in Kennedy v. Louisiana, 128 S. Ct. 2641 (2008). The Court also invited the Solicitor General to file a brief and invited Louisiana's counsel to reply. Here's a link to the Court's order.

Louisiana's rehearing petition and a previous brief from the Acting SG supporting it were based in large part on the Kennedy opinion overlooking a provision of the National Defense Authorization Act for Fiscal Year 2006 that authorized the death penalty for the rape of a child. We discussed the Acting SG's brief here and Louisiana's rehearing petition here.

Afghan SOFA - Exclusive UCMJ Jurisdiction Under Review?

The WaPo reported (two weeks ago) that, after a US led airstrike in Azizabad reportedly killed 90 civilians (a claim the US is investigating, see NYT here), the Afghan government was reviewing its SOFA with the US. I have finally found an unofficial copy of the agreement between the US and Afghanistan on LEXIS. For those interested, the cite is 2002 U.S.T. LEXIS 100. The relevant paragraphs on immunity for US forces make relatively clear that US military personnel have immunity similar to Embassy administrative and technical staff. The agreement goes on to state that the US shall have authority to exercise criminal jurisdiction over "US personnel."

While the agreement's wording is not a model of clarity, I'll excerpt the relevant portion for you below to draw your own conclusions about whether it grants the US authority to prosecute US military personnel, US civilian employees, and US government contractor personnel. The agreement uses the phrases US civilian personnel and contractor personnel elsewhere, so that may inform your interpretation of the term "US personnel." Diplomatic Note No. 202:
The Government of Afghanistan recognizes the particular importance of disciplinary control by United States military authorities over United States personnel and, therefore, Afghanistan authorizes the United States Government to exercise criminal jurisdiction over United States personnel. The Government of Afghanistan and the Government of the United States of America confirm that such personnel may not be surrendered to, or otherwise transferred to, the custody of an international tribunal or any other entity or state without the express consent of the Government of the United States.

Sunday, September 07, 2008

CAAF remands case to NMCCA to relook at the military judge preventing the acccused from accessing the evidence during the Care inquiry

Airman Apprentice Jones was having some trouble making it through a providence inquiry into child pornography offenses. After the military judge granted an overnight recess, the defense counsel asked the military judge to allow Airman Apprentice Jones to review the items to assist him in the Care inquiry. The military judge declined and NMCCA emphatically rejected a challenge based on that ruling. United States v. Jones, No. NMCCA 200602320 (N-M. Ct. Crim. App. Dec. 12, 2007) (per curiam). NMCCA wrote:

The only issue raised in this otherwise uneventful guilty plea was whether or not, in the middle of the providence inquiry, the appellant should have been allowed to again view the contraband child pornography he illegally downloaded in order to refresh his recollection of its specific contents. The military judge did not abuse his discretion in denying the appellant additional access to this contraband as it was far from clear at the time that the appellant was unable to recall its contents. Indeed, after the overnight recess was granted to allow the appellant to regain his composure and refresh his recollection with the assistance of his defense counsel, he was fully capable of articulating the content of both the photographs and the movie serving as the basis for his pleas of guilty. His responses fully satisfied the military judge that the factual basis for his pleas was sufficient.
Id., slip op. at 5-6.

Despite the vehemence of NMCCA's opinion -- which noted at the outset that the court "strongly disagree[s]" with the appellant's challenge -- CAAF doesn't seem to be so sure.

In an order issued Thursday, CAAF set aside NMCCA's opinion and remanded the case to NMCCA for further consideration of "WHETHER THE MILITARY JUDGE ERRED BY DENYING APPELLANT THE OPPORTUNITY TO REVIEW THE EVIDENCE BEFORE HE PLED GUILTY AND WHETHER, IN LIGHT OF THAT DENIAL, APPELLANT'S PLEA WAS PROVIDENT." United States v. Jones, __ M.J. ___, No. 08-0335/NA (C.A.A.F. Sept. 4, 2008).

CAAF grants review of sentence reassessment issue

I've very excited about CAAF's grant of review in United States v. McCracken, __ M.J. ___, No. 08-0440/MC (C.A.A.F. Sept. 4, 2008), since the case holds the potential to improve the law regarding sentence reassessment vs. remanding for resentencing.

The two granted issues in McCracken are:



arises from two Marines in Iraq engaging in an ongoing non-coital sexual relationship. On one particular night, while in Sgt McCracken's rack in a barracks room where other Marines were trying to sleep, he apparently briefly penetrated his corporal paramour's vagina. One of the other Marines in the room reported the misconduct and Sgt McCracken soon found himself being investigated for rape. At a general court-martial, the members found him not guilty of rape but convicted him of indecent assault, adultery (the corporal was married) and drunk and disorderly conduct.

NMCCA set aside the fiding of guilty to indecent assault on factual sufficiency grounds and, by a 2-1 vote, upheld a finding of guilty to indecent acts instead. NMCCA then knocked the sentence down from confinement for a year, total forfeitures, a BCD, and confinement for six months, a BCD, and reduction to E-1. United States v. McCracken, No. NMCCA 200600484 (N-M. Ct. Crim. App. Jan. 29, 2008).

This is meaningful relief that will almost certainly result in some financial benefit to now-Private McCracken. But it isn't apparent to me how NMCCA purports to know that the members would still have adjudged a BCD if they didn't find him guilty of indecent assault, but found him guilty of indecent acts instead. I look forward to CAAF revisting the sentence reassessment criteria and perhaps adopting the valuable reassessment criteria that Judge Baker offered in his concurring opinion in United States v. Moffeit, 63 M.J. 40, 42-43 (C.A.A.F. 2006) (Baker, J., concurring).

The first granted issue is suggested by Judge Couch's dissent in McCracken. He agreed that the indecent assault specification must be set aside but didn't believe that NMCCA could affirm a finding of guilty to indecent acts instead. Judge Couch reasoned that affirming the finding of guilty to indecent acts would be inconsistent with the "Government's theory of liability presented at trial" as well as with "the actus reus element as provided by the military judge to the members." He explained: "Because the Government did not present a theory of indecent acts with another based upon sexual intercourse in the presence of others at trial, and the members were not instructed with elements of the offense consistent with that theory, I do not think we are free to affirm a conviction on that theory on appeal." Nor did Judge Couch believe that a BCD was appropriate for McCracken's offense, further undercutting the majority's view that it could be sure that the members would still have adjudged a BCD even if they hadn't found McCracken guilty of indecent assault, but had convicted him of indecent acts instead.

Saturday, September 06, 2008

CAAF grants review of a self-incrimination issue

On Thursday, CAAF granted review of three naval cases. In Delarosa, CAAF granted review of this issue:

United States v. Delarosa, __ M.J. ___, No. 08-0390/NA (C.A.A.F. Sept. 4, 2008).

The case involves the death of Petty Officer Delaroas's five-month-old son. The members found him guilty of aggravated assault, while acquitting him of murder, maiming, and another aggravated assault specification.

NMCCA's unpublished decision in the case is available here. It begins inauspiciously by noting that "[t]he appellant's motion for oral argument is denied." Id., slip op. at 2 n.1. Both the majority and the concurring opinions characterize the issue the case presents as one of first impression. WHY would NMCCA reject oral argument in this obviously important case? I wonder what position Code 46 took on the oral argument request. Do any of our readers know?

The opinion then proceeds to adopt a bizarre method of referring to the victim in the case. It first identifies him by name as Petty Officer Delarosa's "5-month-old son, Miguel Delarosa (MD)." It then proceeds to refer to him by his initials. Presumably usually when an appellate decision refers to a victim by his or her initials, it's to protect the victim's privacy. That role isn't really accomplished when the opinion expressly identifies the victim by name. Nor, sadly, is there any need to protect Miguel's privacy since he died. Use of the initials thus becomes a strange dehumanizing shorthand for referring to a person. Again, why? (And for comparison purposes, the opinion identifies the two Norfolk detectives involved in the case only by the first initial of their last name.)

The central issue in the case involves Petty Officer Delarosa's actions when he was filling out a written Miranda advice form at a civilian police station before being interviewed. According to the civilian detectives' account, Petty Officer Delarosa had indicated an eagerness to discuss his son's death with the civilian police detectives. They proceeded to Mirandize him. After writing "YES" next to the questions asking about whether he understood his Miranda rights, Petty Officer Delarosa wrote "NO" next to the block asking if he wanted to waive those rights and make a statement. This left the detectives confused, since they understood that he wanted to make a statement. One of the detectives asked him why he wrote "NO" after saying he wanted to make a statement. Petty Officer Delarosa answered that he wanted to talk about his son's death, but wanted a command representative to be present. The detective responded that he didn't have a right to have a command representative present, but reminded him that he was entitled to consult with a lawyer. The detectives say that Petty Officer Delarosa never asked for a lawyer, but reiterated his request for a command representative to attend the interrogation. According to their testimony, the detectives told Petty Officer Delarosa that based on his answers on the form, they could no longer talk with him. They left him in the interrogation room and told him that if he changed his mind and wanted to talk with them, he should knock on the door.

One of the detectives testified that about 35 minutes later, he opened the door to the interrogation room and asked if Petty Officer Delarosa would be willing to take a polygraph. Petty Officer Delarosa said he would. About two hours later, a detective again opened the door and asked if Petty Officer Delarosa needed anything. He asked to use the bathroom. Petty Officer Delarosa never knocked on the interview door -- which the detectives had told him to do if he changed his mind and wanted to resume the interrogation.

In an exchange that followed Petty Officer Delarosa's request to use the head, he indicated that he wanted to talk to the detectives:

As Detective M was taking the appellant to the bathroom, the appellant asked if he could make a telephone call. Detective M replied that he could, but would have to wait until Detective M was finished with something that he was doing. When the appellant asked what Detective M was doing, the detective said that the appellant’s wife was at the police station and preparing to take a polygraph test. The appellant asked to see his wife and was told that he could after her polygraph test was completed. The appellant then told the detective that he now wanted to talk. Detective M indicated that the appellant would first have to be re-advised of his Miranda rights. The appellant stated that he had been confused about the form and wished to waive his rights and take a polygraph test.
Petty Officer Delarosa was readvised of his rights and he waived them all. Before taking a polygraph, he was again advised of his rights and again waived them all. After taking a polygraph, he confessed to having shaken his son, but claimed it was in an attempt to wake him. He denied shaking his son earlier in the evening to try to stop him from crying. He was then reinterrogated and made an audiotaped statement, in which he admitted shaking his son to try to stop him from crying and then shaking him again later to try to wake him up.

In the defense's version of the interrogation, Petty Officer Delarosa expressly asked for a lawyer but was told by one of the detectives that he wouldn't give a "fucking lawyer" to a "baby killer." The military judge in the case, now NMCCA Chief Judge O'Toole, rejected the defense's version of the events and ruled that under the detectives' account, Petty Officer Delarosa's statements were admissible.

Despite Petty Officer Delarosa writing "NO" when asked if he wanted to waive his Miranda rights, both the trial judge and NMCCA ruled that this response was ambiguous in light of his previous indication that he wanted to make a statement. NMCCA continued that once the detectives determined that his willingness to make a statement was contingent upon having a command representative present, they properly stopped their interrogation. NMCCA then phrased the decisional issue in the case as "whether the police 'scrupulously honored' the appellant's right to remain silent when, approximately 35 minutes after he invoked his right to remain silent, they reinitiated contact with the appellant to ask if he was willing to take a polygraph regarding his son's death."

NMCCA then applied the Supreme Court's holding in Michigan v. Mosley, 423 U.S. 96 (1975), and held that the police had scrupulously honored Petty Officer Delarosa's invocation of his right to remain silent.

The court adopted this legal test: "We join the federal circuits in holding that the constitutionality of a subsequent police interview depends not so much on its subject matter or on the length of time between interviews, but rather on whether the police, in conducting the interview, sought to undermine the suspect's resolve to remain silent."

Applying it in this case, the court reasoned that the passage of time before the police reinitiated was not "of primary importance" in answering the decisional issue. NMCCA instead adopted what it called a "flexible approach that takes account of all relevant circumstances." Reviewing the evidence, NMCCA concluded that there was "no evidence of ongoing and repeated efforts to wear down the appellant's resistance."

Judge Couch separately concurred in the result. He observed that CMA's opinion in United States v. Watkins, 34 M.J. 344 (C.M.A. 1992), recognized that "police legitimately may inquire whether a suspect has changed his mind about speaking to them" and that nothing "in the Constitution erects obstacles that preclude police from ascertaining whether a suspect has reconsidered his original decision." Judge Couch characterized the detectives' request to polygraph Petty Officer Delarosa as such an inquiry to determine if he would reconsider his previous invocation of his right to remain silent.

The most significant factor for Judge Couch was that "it is clear from the record the appellant ultimately decided to waive his right to remain silent after he learned that his wife was at the police station to take a polygraph test of her own." Finally, he concluded that Petty Officer Delarosa's ultimate admissions "came after a significant period of time since his invocation of silence."

Regardless of the ultimate outcome, at least CAAF's grant suggests that the final decision will be the product of deliberation following oral argument at which the judges and the parties' counsel can explore the important issues that this case presents.

Equal Justice for United States Military Personnel Act rescheduled for markup

As we have previously discussed, Senate Bill 2052 and House Bill 3174 would permit servicemembers to seek cert even if CAAF denies their petitions for review. The Senate Judiciary Committee has rescheduled its markup of S. 2052. As indicated here, the markup will be on 11 September 2008.

One indication of the bill's continued importance is the pending cert petition in Stevenson v. United States, No. 07-1397. The issue in the case is whether the military has jurisdiction to court-martial a former servicemember on the permanent disabled retired list who is receiving no retirement pay from the military, but is rather receiving disability compensation from the Department of Veterans Affairs. Here's a link to the cert petition. In his opposition to the cert petition (here's a link), the Acting SG argued that the Supremes have no jurisdiction to grant cert on this issue because CAAF had granted review on a different issue in the case. Since at least October 2006, the office of the Solicitor General has argued that 28 U.S.C. § 1259 and Article 67a of the UCMJ limit the Supremes' jurisdiction to the particular issues that CAAF grants; the SG has argued that the Supremes' cert jurisdiction doesn't extend to other issues in the case that CAAF didn't choose to review. That argument appears to be wrong; the relevant portion of § 1259 provides that "[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 the following cases . . . (3) Cases in which the Court of Appeals for the Armed Forces granted a petition for review under section 867(a)(3) of title 10." Note that the statute speaks of cases in which CAAF granted a petition. Stevenson is a case in which CAAF granted a petition, so it appears to be reviewable. Relying on Gene Fidell's definitive analysis of this issue, Stevenson reply brief effectively rebuts the Acting SG's narrow interpretation of § 1259 and Article 67a.

But if the Acting SG's interpretation were correct, it would radically reduce the number of military justice cases that fall within the Supremes' cert jurisdiction. Under the Acting SG's interpretation, the Supremes would have no cert jurisdiction in the many, many cases in which CAAF grants a petition but no particular issue in the case and then summarily affirms. The main reason CAAF appears to do so is to open the door to the Supremes. But, according to the Acting SG, CAAF hasn't actually succeeded in doing so.

Even if S. 2052 were to become law, it would be too late to resolve that issue for purposes of Stevenson, which has already been distributed for the Supremes' 29 September conference. But definitively rejecting the Acting SG's cramped interpretation of § 1259 and Article 67a for future cases would be yet another benefit of S. 2052's enactment.

Upcoming training opportunities

A reminder: on Tuesday, Mr. DeCicco will be conducting an orientation session for new appellate counsel. While the session is specifically geared for newbies, I found last year's to be quite useful for those with more experience as well. The session will in CAAF's courtroom starting at 0900.

The Judge Advocates Association and CAAF will once again be presenting an appellate advocacy symposium. Here's a link to the flyer. This year's symposium will be held on 3 October at the George Mason University School of Law from 0830 to 1600.

The headline act alone is worth the price of admission ($60): former CAAF Chief Judge Walter T. Cox III will be speaking about effective appellate advocacy. Judge Cox was a fabulous judge and is quite the raconteur, so his presentation is not to be missed. Also on the schedule is Robert P. Charrow talking about effective legal writing, a military justice update from TJAGLCS's faculty, a panel of CCA judges, and moi.

New Mil. R. Evid. 412 article

The Army JAG School has published a new issue of the Military Law Review. Here's a link.

Of greatest interest to those of us who spend most of each day obsessing over military justice is an article critical of Military Rule of Evidence 412. MAJ Shane R. Reeves, Time to Fine-Tune Military Rule of Evidence 412, 196 Mil. L. Rev. 47 (2008). Here's a link to the individual article.


Greetings from the northern edge of Tropical Storm Hanna. We have quite a lot to note this weekend: (1) a new issue of the Military Law Review; (2) a couple of CAAF grants; (3) the imminent return of congressional consideraton of the Equal Justice for United States Military Personnel Act; and (4) a couple of upcoming training opportunities.

Friday, September 05, 2008

BG Hartmann Removed From Another Case

The prickly, controversial Legal Advisor to the Convening Authority, Brig. Gen. Hartmann, is in the news again.

According to a story today in the Miami Herald, military commissions judge Colonel Patrick J. Parrish barred Hartmann from acting as the legal advisor in the case of United States v. Omar Khadr. The Herald reports that Colonel Parrish found that Hartmann appeared to have lost his neutrality and that there is a perception that he favors the prosecution.

This is the third military commissions’ judge, in as many cases, to find that Hartmann has abused his role as the Legal Advisor. Hartmann was previously slapped down by two separate judges in the Hamdan case and the Jawad case.

It seems to me that the trend of judges slapping Hartmann down will continue, and for good reason. Judge Keith Allred, the judge in the Hamdan case, held a hearing about Hartmann’s behavior, and, as a result of that hearing, issued devastating findings of fact and conclusions of law against Hartmann. You can’t ignore the record.

It is quite possible that every case that Hartmann touches will create a big fat hanging curve ball of an appellate issue. If that is true, and many think that it is, then what value is there in keeping him in the position as Legal Advisor?

In the past (NPR’s Diane Rehm show on July 22, 2008) I have called for Hartmann to be thanked and excused - - -fired - - from his present position. He is a legal liability, a burden on the commissions process itself. I still believe that he should be relieved of his duties.

As an alternative to firing Hartmann, they could bi-furcate the role of the Legal Advisor, since the Legal Advisor wears two hats. Hartmann could wear one hat; the one he has most closely associated himself with---that of energizing, educating, and working closely with the Chief Prosecutor (but not stepping on the independence of the Chief Prosecutor, or micromanaging the prosecution’s efforts). The other hat should go to the new co-Legal Advisor, who would dispense independent legal advice to the Convening Authority. It’s not perfect, but it might work.

Thursday, September 04, 2008

New AFCCA published opinion

A recurring issue in Air Force appellate litigation is whether the SJAR must advise the CA of an accused's request to participate in the Return-to-Duty Program. In a decision issued yesterday, AFCCA basically ruled (and I'm paraphrasing here): No, and we're publishing this opinion so you'll stop asking. United States v. Taylor, __ M.J. ___, No. ACM 37012 (A.F. Ct. Crim. App. Sept. 3, 2008). Here's a link. Judge Jackson wrote for a unanimous panel.

The opinion referred to three previous AFCCA unpublished opinions reaching the same result, but noted that they carry "no precedential weight." Id., slip op. at 3. AFCCA didn't tell us how it feels about the precedential weight of unpublished Delaware Court of Chancery opinions or Seinfeld episodes. (If you have no idea what I'm talking about, see here.)

Air Force Times Article on Hard Labor

Interesting Air Force Times article, here, on the merits of hard labor as a punishment. I awarded hard labor as a summary court-martial officer, so you probably know where I once stood on the issue. But, considering this article . . . I may have some more thoughts tonight.

Navy Detention Camp Cases Postponed

Since CAAF news is slow, even delays in courts-martial can be news. The Navy Times reported that the Art. 32 hearing in the case of a Navy guard from a detention facility in Camp Bucca, Iraq, who allegedly assaulted Iraqi detainees held at Camp Bucca, will be postponed until October. We previously reported on this and 12 other cases stemming from an incident at Camp Bucca on May 14, 2008, here. According to Navy Times, the accused facing the Article 32 hearing is a Navy Chief. The report said that the convening authority also postponed summary and special courts-martial for five other "lower-ranking personnel."

Wednesday, September 03, 2008

Yadda, yadda and the law

Nothing visible seems to have happened in military appellate justice today, so I'll note a recent opinion by the Maryland Court of Appeals in a case arising from the demise of Tom Clancy's (yes, THAT Tom Clancy) marriage. Clancy v. King, __ Md. ___, No. 112 (Aug. 26, 2008). (Here's a link.) This post is about a resulting pop culture reference in a judicial opinion. But it's not a Jack Ryan reference; it is, of all things, a Seinfeld reference.

He and his former wife were in a limited partnership for the purpose of writing, publishing, and selling books. The better the partnership did, the more money the former Mrs. Clancy made. Five years after the couple's divorce was final, Tom Clancy removed his name from the Op-Center series of books, which generated income for the partnership. By removing his name from the books, Clancy automatically reduced the partnership's percentage of the books' income. And removing his name was likely to reduce the total size of the pie as well as the partnership's percentage of the pie. The decision, therefore, was likely to cost the partnership a considerable sum.

The former Mrs. Clancy brought suit to try to restore Tom Clancy's name to the series, thus likely restoring the previous size of the partnership's income stream. The Charles County Circuit Court adjudged a verdict in favor of the former Mrs. Clancy. Maryland's intermediate appellate court generally affirmed the circuit court's ruling and the Maryland Court of Appeals then granted cert.

By a 5-2 vote, the resulting opinion handed Tom Clancy a do-over. But the case is interesting because of a couple of footnotes in Judge Harrell's majority opinion. First, in footnote 17, Judge Harrell tells us, "Although the citation of unreported opinions (Maryland or otherwise) ordinarily is not appropriate, this is an unusual situation." He then cites an unpublished Delaware Court of Chancery opinion. This is amusing because in footnote 27, Judge Harrell cites a sitcom. To illustrate the point that "[o]ne certainly breaches the promise of good faith owed in contract and as fiduciary in a partnership by working actively to decrease directly the profits of the business venture," Judge Harrell offers the following:

Jerry Seinfeld, perhaps an unlikely legal illustrator, once epitomized the duty of good faith in contract. In an episode of his television show, Jerry's character purchased a jacket at a men's clothing shop. The terms of the contract permitted Jerry to return the item for refund at his discretion. When Jerry attempted to return the jacket after an unrelated personal quarrel with the salesman, the following discussion took place.
Jerry: Excuse me, I'd like to return this jacket.
Clerk: Certainly. May I ask why?
Jerry: For spite.
Clerk: Spite?
Jerry: That's right. I don't care for the salesman that sold it to me.
Clerk: I don't think you can return an item for spite.
Jerry: What do you mean?
Clerk: Well, if there was some problem with the garment. If it were unsatisfactory in some way, then we could do it for you, but I'm afraid spite doesn't fit into any of our conditions for a refund.
Jerry: That's ridiculous, I want to return it. What's the difference what the reason is? Clerk: Let me speak with the manager . . . excuse me . . . Bob!
(walks over to the manager and whispers)
Bob: What seems to be the problem?
Jerry : Well, I want to return this jacket and she asked me why and I said for spite and now she won't take it back.
Bob: That's true. You can't return an item based purely on spite.
Jerry: Well, so fine then . . . then I don't want it and then that's why I'm returning it.
Bob: Well you already said spite so . . . .
Jerry: But I changed my mind.
Bob: No, you said spite. Too late.

Seinfeld: The Wig Master (NBC original television broadcast 4 April 1996).

In attempting to exercise his contractual discretion out of "spite," Jerry breached his duty to act in good faith towards the other party to the contract. Jerry would have been authorized to return the jacket if, in his good faith opinion, it did not fit or was not an attractive jacket. He may not return the jacket, however, for the sole purpose of denying to the other party the value of the contract. Jerry's post hoc rationalization that he was returning the jacket because he did not "want it" was rejected properly by Bob as not credible.

Okay, note to file: unpublished opinions (except for the odd Delaware Court of Chancery decision) out; Seinfeld quotes in.

I'm going to see Seinfeld doing stand up in Baltimore this weekend. Now I'll be scanning the audience looking for Judge Harrell.