Friday, October 31, 2008

Mistrial motion denied in Martinez case

Here's a link to an interesting Fayetteville Observer report about a motion for a mistrial in the capital Martinez case being tried at Fort Bragg. The mistrial motion arose when a CID agent's testimony to the members twice mentioned evidence that had been ruled inadmissible.

Thursday, October 30, 2008

Court-martial follies

The life of a military appellate counsel -- sitting in a room reading records of trial day after day -- may not sound riveting. But fortunately, records of trial often provide entertainment. My colleague Capt Mike Burnatt found this amusing exchange in an Air Force ROT:

(After Trial counsel's findings witness testified):

MJ: Trial counsel, you may proceed.

TC: Argument, sir.

MJ: Well, we're still at evidence now. Does the government rest? Do you have any additional evidence?

TC: We'll go with sentencing evidence.

MJ: We're in findings now. So, you're trying to convince the court that . . .

TC: No, sir, nothing, no further evidence.

MJ: So the government rests?

TC: Yes, sir.

CAAF grants review of victim impact evidence issue

CAAF yesterday granted review of this issue: "WHETHER THE MILITARY JUDGE ERRED BY ALLOWING THE FATHER OF THE ALLEGED VICTIM TO TESTIFY AS EVIDENCE IN AGGRAVATION, OVER DEFENSE OBJECTION, AS TO THE IMPACT ON THE ALLEGED VICTIM OF THE INVESTIGATION AND COURT-MARTIAL." United States v. Stephens, __ M.J. ___, No. 08-0589/AF (C.A.A.F. Oct. 29, 2008). AFCCA's decision in the case is published at 66 M.J. 520. The portion of the opinion relevant to the granted issue is at 527-28.

Wednesday, October 29, 2008

Commentary on Watada

Here's a link to a Jurist commentary on Watada by Donald G. Rehkopf, Jr., the co-chair of NACDL's Military Law Committee.

Denedo -- what next?

Under SCOTUS Rule 16.5, "the Clerk will distribute the petition, brief in opposition, and any reply brief to the Court for its consideration no less than 10 days after the brief in opposition is filed." So Denedo should be circulated next Thursday or shortly thereafter. The SG can file a reply to Denedo's opp in the meantime. Since the original cert petition didn't address the jurisdictional problem that the opp highlighted, I suspect he will.

Military [j]ustice news

This borders on being non-military justice news, but, hey, it's our blog. News from Iraq is that an Iraqi man was convicted and sentenced to death (two others were acquitted) yesterday for the abduction and murder of two US soldiers from the 101st Airborne., NYT report (via WSJ Law Blog) here and WaPo report here. Head of the Iraqi Law and Order Task Force (LAOTF), Col. Rafael Lara, Jr., was quoted in the WaPo report as saying, "I'm very pleased to see the Iraqi judiciary exercise discretion and the rules of procedure . . . Iraqi courts have taken a good step today." While I won't call that faint praise, that wasn't exactly a ringing endorsement. Col. Lara also expressed regret that the court did not convict all the defendants. I imagine a fair number of Iraqi prosecutors heard that statement and thought, Pot meet Kettle, Kettle meet Pot (see our coverage of Iraqi civilian killings courts-martial here, here, etc.)

The Iraqi criminal justice system, which to me looks more like the French system, was implemented with the help of many of our readers. I hope today's verdict is satisfying for you and lets you take some pride in the work you did.

Drawing a new Mendoza line: corrected CA actions vs. new CA actions

CAAF's docket continues to rocket. On Friday, CAAF cleaned up a case that appears to be a Gogue trailer. United States v. Owens, __ M.J. ___, No. 7-0856/AR [sic] (C.A.A.F. Oct. 24, 2008) (summary disposition). On Tuesday, CAAF issued its second opinion of the court for the term.

Judge Stucky wrote for a unanimous court, overturning a published NMCCA decision dealing with post-trial processing on remand. United States v. Mendoza, __ M.J. ___, No. 08-0246/NA (C.A.A.F. Oct. 28, 2008). The issue is whether upon remand for a new action, the CA must obtain a new recommendation from the SJA and provide the defense with an opportunity to make R.C.M. 1105 and 1106 submissions before taking the new action.

CAAF drew a distinction between a a corrected action and a new action. The former doesn't require a new SJAR and opportunity for defense submissions while the latter does, held CAAF. (Who nailed that outcome when we first discussed Mendoza here? Beloved CAAFlog commentator JO'C.)

In this case, NMCCA's remand order didn't authorize a corrected action but required a new one. CAAF held that the CA erred by taking that new action without a new SJAR or opportunity for defense submissions. CAAF remanded the case to NMCCA to determine whether Petty Officer Mendoza was prejudiced by that omission.

Tuesday, October 28, 2008

To quote Tone Loc, funky cold Medina

On 7 July 2008, CAAF granted review of this issue: "WHETHER THE MILITARY JUDGE ERRED WHEN HE HELD APPELLANT'S WAIVER OF HIS ARTICLE 32 RIGHTS FOR HIS 20 SEPTEMBER 2001 COURT-MARTIAL APPLIED TO HIS 23 OCTOBER 2006 REHEARING." United States v. von Bergen, 67 M.J. 4 (C.A.A.F. 2008). Today, CAAF called for briefing of an additional issue in the case. CAAF's order provides:

Upon further consideration of the granted issue, 67 M.J. 4 (C.A.A.F. 2008), the briefs of the parties, and in light of United States v. Medina, 66 M.J. 21 (C.A.A.F. 2008), the Court has determined that supplemental briefing prior to oral argument would be of assistance in resolving the granted issue. Accordingly, it is, by the Court, this 28th day of October, 2008, ORDERED: That the Appellant and the United States shall, on or before November 7, 2008, each file a supplemental brief addressing the impact of United States v. Medina, if any, upon the granted issue.
United States v. von Bergen, __ M.J. ___, No. 03-0629/AF (C.A.A.F. Oct. 28, 2008).

The esteemed Major Howard H. Hoege III has lauded Medina, observing: "Allowing Article 134 to previously devolve into the ultimate safety new for the government -- to the point where military judges explain to the accused that the only reason they include a clause 1 or 2 element is to gird the accused's conviction from a successful appeal -- gives life to the accusation that Article 134 is 'the Devil's Article.' The good news from Medina is that military justice practitioners may look forward to much cleaner practice both in the realm of article 134 and the breadth of offense-relation doctrines." Major Howard H. Hoege III, Flying Without a Net: United States v. Medina & Its Implications for Article 134 Practice, Army Law., June 2008, at 37, 49 (footnote omitted). Tone Loc made a similar point: "That medina's a monster y'all." CAAF appears ready to take another shot of the funky cold Medina in von Bergen.

To quote the Beach Boys, be true to your school

My recent non-military justice rant about U.S. law schools disgorging about 44,000 graduates a year elicited a couple of suggestions to consolidate the three military justice schools. One of these suggestions expressly proposed consolidating them at Charlottesville.

For many reasons that I won't explore in depth now, I wouldn't want to see the various military justice schools consolidated. My fear is that a "purple" school wouldn't be purple at all, but rather would be Army Green. And while Army doctrine is fine for the Army, it isn't for the sea services. (I'll let others more knowledgeable about air power opine as to whether it's appropriate for the Air Force.)

But that said, I must concede that if there were a substantial cost savings to be realized through such a consolidation, I would probably have to swallow my Armyphobia and endorse the idea. (Not that anyone cares about my endorsement, but I do enjoy working through these thought problems.) But would consolidating the military justice schools actually result in cost savings?

In the past, I've heard proposals to consolidate all of the military justice schools at a new facility to be built at Fort Jackson, South Carolina. I would suspect that the cost of building such a new facility would far exceed any cost savings to be realized from consolidation for decades to come. And even if it could conceivably result in some net savings 30 years out, this seems like a bad time to be making a considerable up-front expenditure to realize savings decades in the future.

So the question is whether any of the current military justice schools have sufficient excess capacity to absorb the other two. And I suspect that the answer to that question is no. During my most recent visits to TJAGLCS -- the only school that could conceivably accommodate the other two -- office space seemed to be in short supply. In the annual military justice reports, perhaps I'm missing the stats for TJAGLCS and the Air Force JAG School, but I could find a breakdown for the number of basic lawyer students only in the Naval Justice School report. NJS graduated 135 students from its basic lawyer course in Fiscal Year 2007. Could TJAGLCS accommodate twice that number of additional basic lawyer students (assuming rough parity between the number of new sea service and Air Force judge advocates) in its current facility? If so, then perhaps substantial costs could be saved by consolidating the three schools at Charlottesville. (C'ville is a higher per diem area than Maxwell, but lower than Newport, so per diem considerations are likely to be a wash, at least assuming that TJALCS has sufficient billeting to accommodate all of the basic lawyer students rather than throwing them out on the local economy.) If not, then far from saving money, consolidation would probably result in substantial additional spending.

Does anyone have actual data or recent experience that would inform the answer to these questions?

More thoughts about the Denedo opposition

We have previously discussed the opposition to the SG's cert petition in Denedo. The cert petition is available here and the opp is available here.

As I've made clear, I don't believe that CAAF had jurisdiction in Denedo but I also don't believe that the Supremes have jurisdiction to grant cert at this point.

Several commentators have advanced arguments for SCOTUS jurisdiction, but I find those arguments unpersuasive. Let's unpack a couple of them to demonstrate why.

I think we all agree that SCOTUS has jurisdiction only if CAAF granted "relief." The opp cites a Seventh Circuit decision authored by then-Chief Judge Posner of the Seventh Circuit and joined by Judges Easterbrook and Manion. They observed: "Summary judgment is not relief. It is merely a procedural premise for relief. The relief is whatever the party moving for summary judgment was seeking and the court agrees the party is entitled to." Health Cost Controls, Inc. v. Washington, 187 F.3d 703, 706 (7th Cir. 1999). This appears to be quite helpful to Denedo's position that a remand for further proceedings isn't relief and thus doesn't give SCOTUS jurisdiction to review the case.

But 0846 Anon is unimpressed. He/she counters: "Looks like relief to me - allowing a discharged serviceman a hearing that he isn't entitled to." No offense, 0846 Anon, but if I could have Judge Posner or you on my side, I'll take Judge Posner.

Ten years ago, a group of three distinguished law professors published an empirical assessment that used "the number of citations to the published opinions of judges on the federal courts of appeals to measure the influence of individual judges." William M. Landes, Lawrence Lessig & Michael E. Solimine, Judicial Influence: A Citation Analysis of Federal Courts of Appeals Judges, 27 J. Legal Stud. 271, 271 (1998). (Click here for a "working paper" version of the study.) Guess who the study found to be the most influential judge on any federal court of appeals. Right, Judge Posner. Guess who was third. Yup, Judge Easterbrook.

Of course, as any Bill James fan would tell you, an empirical assessment is helpful only to the extent that it measures the right thing. Here, I don't think that anyone would express surprise that Judge Posner would be deemed the most influential federal court of appeals judge. On the contrary, wouldn't we be surprised and suspicious of any metric that suggested he isn't the most influential federal court of appeals judge? Eyeballing the list, it sure looks like the profs measured the right thing.

So it would be impossible for two federal court of appeals judges to provide more gravitas than does the combination of Posner and Easterbrook. (The number 2 judge -- Judge Selya -- sits on the First Circuit. The third member of the Health Cost Controls Inc. court -- Judge Manion -- ranked 83rd of 205.) So the Posner/Easterbrook/Manion view of "relief" is likely to be quite persuasive to the Supremes.

0846 Anon also offers a fallback position: "this is one of those issues that is capable of repetition yet avoiding review." But that isn't really true. The issue doesn't evade review. If CAAF were ever to grant relief in a post-finality case, the SG could seek cert then. But even if it were applicable, the "capable of repetition, yet evading review" doctrine is an exception to mootness. Davis v. FEC, 128 S. Ct. 2759, 2768 (2008). That doctrine doesn't create jurisdiction where none existed before.

If Denedo ever actually obtains relief from the military appellate courts, then SCOTUS can (and, in my mind, should) grant cert. If he doesn't, then SCOTUS should await some future case in which post-finality relief is granted to test CAAF's jurisdiction over such cases.

On the question of whether Denedo could be retried if he obtained relief, if his BCD were set aside, would he then revert to his status as a member of the United States Navy? If so, then jurisdiction would exist under Article 2(a)(1) to court-martial him. Even if not, Article 3(a) would provide a clear statutory basis for jurisdiction, though United States ex rel. Toth v. Quarles, 350 U.S. 11 (1966), suggests that the exercise of such jurisdiction might be unconstitutional. So, ironically, if Denedo were to win, his case could lead to revisiting Toth v. Quarles, which could have even greater jurisdictional significance that the jurisdictional question raised by the SG in his cert petition.

Big news day

This is a big news day, with a new CAAF opinion out and an interesting specified issue from CAAF. I'll be posting more about those developments later tonight. But first I have a bit of non-CAAFlog business to attend to and then I'll be following up with posts on a couple of open threads before turning to new business.

Monday, October 27, 2008

Denedo opposition

In their opposition to cert, Denedo's counsel make two main points: (1) the Supremes don't have jurisdiction to grant cert in the case's current posture; and (2) CAAF was right. I agree with the first point even though I disagree with the second.

The opp observes that the SG invoked jurisdiction under 28 U.S.C. § 1259(4), which allows the Court to review "[c]ases, other than those described in paragraphs (1), (2), and (3) of this subsection, in which the Court of Appeals for the Armed Forces has granted relief." The opp notes that CAAF remanded to NMCCA for further proceedings with the direction that "[i]f prejudice is found, [that] court shall determine whether the requested relief should be granted." The opp argues: "A remand, without relief, is not 'relief.' It is merely a procedural step that may lead to adjudication of the merits. 'Relief' is the substance of what the moving party seeks and what the court finds he or she is entitled to. Health Cost Controls of Illinois, Inc. v. Washington, 187 F.3d 703, 706 (7th Cir. 1999)
(Posner, C.J.)." Opp at 5.

The opposition has a discussion of Clinton v. Goldsmith, 526 U.S. 529 (1999), that is sufficiently interesting, nuanced, and short to be best read in toto rather than summarized here. The opp also notes that the case presents no circuit split crying out for resolution. And the opp presents a compelling case that Denedo has nowhere else to turn if not to the military appellate courts. Finally, the opp calls attention to the "irony" that "in its effort to call into question the jurisdiction of the Court of Appeals the government has overlooked this Court's lack of jurisdiction over the petition." Opp. at 14. (Now THAT, Ms. Morissette, is ironic.)

But even if the Supremes did have jurisdiction, there is another good argument -- not included in the opp -- suggesting that cert is inappropriate. And that argument was made by, of all people, the Solicitor General. In his opp to a military cert petition earlier in the same month that he filed his Denedo cert petition, the SG argued that the personal jurisdiction issue presented by Stevenson v. United States, No. 07-1397, was "premature at this juncture." Brief for the United States in Opposition, Stevenson v. United States, No. 07-1397, at 9 (filed August 4, 2008). In Stevenson, the SG wrote:

The court below remanded this case for a factual determination whether a search warrant whose execution resulted in obtaining crucial evidence in this case was predicated upon tainted information. Resolution of that issue in petitioner's favor could result in the reversal of his conviction, thereby rendering the question presented by this petition moot. If petitioner does not prevail on the issue on remand, petitioner may then be able to present his contention to this Court in a petition for a writ of certiorari seeking review of a final judgment against him.
Id. (internal citation omitted).

Similarly, in Denedo, CAAF remanded the case for further proceedings by a lower court to determine whether to grant relief. Resolution of that issue in the United States' favor would moot the question presented by its cert petition. If the United States doesn't prevail in that litigation, then it can return to the Supremes with a ripe certiorari petition.

As troubling as CAAF's ruling in Denedo is, the case doesn't appear to fall within the Supremes' statutory cert jurisdiction and, even if it did, isn't ripe. Just like it passed on Stevenson, the Supremes should pass on Denedo.

Padding the bill: The CBO issues what looks like a highly inflated cost estimate for the Equal Justice for United States Military Personnel Act

The Congressional Budget Office's cost estimate for S. 2052, the Equal Justice for United States Military Personnel Act, which was issued on 22 October, is available here.

Relying on "information provided by the Department of Defense (DoD) and the American Bar Association," the cost estimate makes highly dubious claims. The CBO tells us that if the Supreme Court granted cert in a military case, "DoD could spend an additional $1 million to $2 million from appropriated funds to defend the case." Rarely have a read such an outlandish figure. I'm not guessing here. I've been military counsel in a granted Supreme Court case and I've been the head of a military defense office providing representation in a granted Supreme Court case. The only additional expenses to DOD that such a case would cause are printing and postage. It would be surprising if the two of them together reached $20,000 -- or 1/100th the high-end figure provided by the cost estimate. (Actually, the CBO estimate says that the additional $1-to-2 million expense would be "to defend the case." Since the Solicitor General's Office would actually defend the case -- and since it does its own printing in-house, which is presumably paid for by DOJ -- it's difficult to see why there would be any cost to DOD "to defend the case.")

Does ANYONE believe that the total cost to DOD of a granted case would approach even the low-end figure of $1 million?

The other outlandish claim is that even without an actual grant, the legislation would "cost about $1 million a year." This figure is derived under the assumptions that "the bill would make several hundred court-martialed service members eligible to file petitions each year, and that a substantial portion of those individuals would pursue review by the Supreme Court." This ignores actual practice under the current regime, in which cert petitions filed by appellate defense divisions are rare. If the legislation were to be enacted, no cert petition would be filed in the huge majority of eligible cases. In some much smaller number of cases, a military defense counsel would tell the client that there is no non-frivolous issue in the case and explain how the client can file pro se and the client would do so--at no cost to DOD. In some very small number of cases that currently wouldn't be eligible for cert, a military appellate defense division would file a cert petition on the client's behalf, thus creating additional printing expenses. To reach $1 million, there would have to be more than 200 such cases each year.

Let's provide some historical perspective. Gene Fidell observes that following the passage of the Military Justice Act of 1983, "[i]t took nine years before the number" of military cert petitions "exceeded two hundred." Eugene R. Fidell, Review of Decisions of the United States Court of Appeals for the Armed Forces by the Supreme Court of the United States, in Evolving Military Justice at 156 (Eugene R. Fidell & Dwight H. Sullivan, eds., 2002). The notion that almost ten times as many cert petitions would be filed annually from among the cases that CAAF deems insufficiently important to grant review is fanciful.

I've seen this trick many times before. When I was a registered lobbyist with the Maryland General Assembly, if the Governor's administration wanted to kill a bill, it would often try to engineer an expensive fiscal note from the Department of Legislative Services. I suspect that something similar happened here: DOD wants to kill the bill, so it puffed up its likely cost. What I can't understand is what role the ABA had in this cost estimate. The ABA supports this legislation. What figures did its lobbyist provide to the CBO?

Denedo opposition to cert filed

Denedo's counsel today filed their opposition to the SG's cert petition. The petition is available here. I'll post some thoughts about it tonight.

Resource Alert: Naval Law Review Back Online

The latest issues of Naval Law Review are up on the Navy JAG website, here. A few months back we bemoaned their absence from the web, here, but all is well in Newport, RI and they are back up. I won't preview all the relevant articles, but ones that caught my attention (and CAAFlog's back in February) were:

Volume 56:

Wexler, Ian, A Comfortable SOFA: The Need for An Equitable Foreign Criminal Jurisdiction Agreement with Iraq (making an interesting argument about the Iraqi SOFA in light of recent events, see here and here).

Rush, Trevor, Mayfield, FISA, and the Fourth Amendment (arguing, I believe, for the constitutionality of FISA after Mayfield).

Volume 55:

Gonzalez, David M., The Continuing Fallout From Crawford

Lofland, Keith B., The Neglected Debate Over Sexual Assault Policy in the Military

Ahmad, Syed, The Unconstitutional Prosecution of the Taliban Under the Military Commissions Act (from the intro, the article argues that "the declaration that detained Taliban are unlawful enemy combatants is in violation of the law of war, and, as a result, Congress exceeded its authority under Article I, section 8, clause 10 of the U.S. Constitution by subjecting members of the Taliban to trial by a military commission."---or my alternate description, "How to become persona non grata at DoD OGC.")

Hudson, Faralick, and Sautter, Lightning But No Thunder: The Need For Clarity in Military Courts Regarding the Definition of Mental retardation in Capital Cases and for Procedures in Implementing Atkins v. Virginia.

H/T to LCDR Wexler

Sunday, October 26, 2008

WARNING: The Surgeon General has determined that this is a non-military justice rant

Guess how many students will graduate from U.S. law schools this academic year. Go ahead, guess. Do you have a number in mind?

On Friday, I was astounded to learn from the ABA that the answer to that question is "nearly 44,000." That's 44,000 NEW law school graduates. That means that in 12 years, we will have half a million new law school graduates. How could our country possibly need that many law school graduates? What do all of those people do? 44,000 law school graduates suggests that around 132,000 of our fellow citizens are spending this year enrolled in a law school. Is that a sound use of Americans' time?

My state, Maryland, is in the midst of a horrible budget crisis. Maryland has two state-supported law schools, both in Baltimore. According to Map Quest, the two schools are 1.52 miles from each other. I assume (though I confess that I don't actually know this to be true) that each receives considerable support from Maryland's taxpayers. Should Maryland consolidate the schools or simply axe one of them? Does Maryland really need two state-supported law schools within walking distance of each other? I assume that eliminating one of them would result in substantial savings and I don't think that our collective society would suffer from a slight diminution in the number of new law school graduates spewing out into it each year.

Saturday, October 25, 2008

The Conscience of a Lawyer

An anonymous comment this morning asked what I take to be a sincere question:

Being a legal officer, not a JAG, I am always interested to read this blog. The military defense attorneys I know (and I have worked with a lot of them) seem to relish in keeping criminals in the service through trickery and technicalities. Yet they wear the uniform and claim to be honorable officers. Can anyone explain this to me? Do they really want these people in the same service they are?
There is a very long answer to this question and a very short answer to this question.

The long answer is provided by a booked called The Conscience of a Lawyer by Professor David Mellinkoff. It was recommended to me many years ago by my mentor and one of the best lawyers I know, John Holt, now of DOJ. It's a book-length answer to the question, "How can you defend that guy?" And it explains the history, application, benefits, and faults of the Anglo-American legal tradition (and now professional obligation) that a defense counsel zealously protect his or her client's interests. Unfortunately this wonderful book appears to be out of print, but used copies are available through Amazon here or through here.

I can't find my copy of the book at the moment, which means it's either at the office or I've lent it to someone. (If the latter, I might have to buy one of those used copies.) So I'll have to do this from memory. Mellinkoff argues that our view of the defense counsel's duty is shaped by Lord Brougham's defense of his own defense of soon-to-be Queen Caroline when soon-to-be King George IV tried in 1820 to divorce her and prevent her from assuming the title of "Queen Consort." Lord Brougham explained, in language that would come to be accepted as a lawyer's ethical obligation:

An advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and, amongst them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others.
2 Trial of Queen Caroline 8 (London, Shackell & Arrowsmith 1820-21). [A good description of George IV's ultimately unsuccessful attempt to divorce Queen Caroline is available here.]

So part of the reason why defense counsel behave as they do is that the legal profession makes it their professional duty to zealously advance their clients' interests without regard to the interests of the larger society. Again, read Mellinkoff's book for a wonderful discussion of that duty, its benefits, and its costs. For current purposes, suffice it to say that our Anglo-American legal tradition views it as necessary to have a buffer between the crushing weight of the state and an individual citizen and that buffer is a zealous defense counsel. The defense counsel puts the government's case to the test. We trust the adversarial give and take between a zealous defense counsel and a zealous prosecutor to reveal the truth. Sometimes, despite this adversary system, an innocent accused will be crushed by the weight of the state. Sometimes, despite this adversary system, a guilty accused will go free. But the American system of government views the possibility of some innocent accused being crushed and some guilty accused going free as a regrettable but necessary side effect of the greater good that results from using the adversary system to discover the truth.

But there is a much simpler answer to the question of why MILITARY defense counsel represent their clients even while others might perceive that representation to be against the greater interest of their military service: because it is their military duty to do so.

In my capacity as a Marine Corps Reserve officer, I currently perform military reserve duties supporting the Navy-Marine Corps Appellate Defense Division. And in that capacity, I represent Marines and Sailors who have been convicted by court-martial or who are currently facing court-martial on appeals before the Navy-Marine Corps Court of Criminal Appeals, the Court of Appeals for the Armed Forces, and the Supreme Court. That is a position in the Office of the Judge Advocate General of the Navy. And Congress, the President, and the Judge Advocate General of the Navy have all expressly told me what my military duty is. Congress has said, "Appellate defense counsel shall represent the accused . . . ." Art. 70, UCMJ, 10 U.S.C. § 870. The President of the United States has also required an appellate defense counsel to "represent the accused." R.C.M. 1202(b)(2). And here's what the Judge Advocate General of the Navy has required in a regulation that binds all Marine and Navy judge advocates: "Nothwithstanding a judge advocate's status as a commissioned officer subject, generally, to the authority of superiors, a judge advocate detailed or assigned to represent an individual member or employee of the Department of the Navy is expected to exercise unfettered loyalty and professional independence during the representation consistent with these Rules and remains ultimately responsible for acting in the best interest of the individual client." JAGINST 5803.1C, Professional Conduct of Attorneys Practicing Under the Cognizance and Supervision of the Judge Advocate General, Rule 5.4(a) (9 Nov 04). So I have specifically been ordered NOT to consider the interests of the Marine Corps when representing a client, but rather to give my "unfettered loyalty" to my client. The Judge Advocate General has similarly ordered me to "follow the client's well-informed and lawful decisions concerning case objectives." Id., R. 1.2(c). And the Judge Advocate General has made clear that a judge advocate's "representation of a client does not constitute an endorsement of the client's political, economic, social, or moral views or activities." Id., R. 1.2(d).

So let me give you a hypothetical. Let's say I represent a client I absolutely know to be guilty. But, let's say, the key piece of evidence against my client was the product of an unconstitutional search and I know that if I file the right motion at trial or make the right argument on appeal, my factually guilty client walks. Now, as I've made clear here many times, I don't like the Fourth Amendment exclusionary rule. If I were ever somehow to find myself on the United States Supreme Court, I would vote for the proposition that the Fourth Amendment exclusionary rule isn't required by the United States Constitution. That said, if I were to fail to use the exclusionary rule on my factually guilty client's behalf or if I were to do so perfunctorily in the hope that the military judge or appellate court wouldn't rule on my client's behalf, I would literally be violating my military duty. Not only that, I would literally be committing a criminal offense under the UCMJ. Art. 92, UCMJ, 10 U.S.C. § 892. So raise the issue I would, and I'd fight like hell to win. And if I did win, I might even take some small measure of personal satisfaction for having performed my military duties well even while privately putting another check mark on my mental tally of why the exclusionary rule is a bad idea.

Similar statutes and Rules for Courts-Martial and regulations apply to all trial-level and appellate-level defense counsel in the United States military. So the next time you want to get mad at a defense counsel for performing his or her duty, don't. If you must get mad, get mad at Congress or the President. Or, better yet, realize that Congress, the President, and the Judge Advocate General of the Navy had very good reasons for assigning those duties to defense counsel and don't get mad at all.

Thursday, October 23, 2008

Is timely post-trial review a right without a remedy?

CAPT A. R. Philpott, JAG, USN -- the great former director of Code 45 and then CO of Naval Justice School -- had a colorful phrase that's appropriate in this Halloween season: "A right without a remedy is a ghost that stalks the law." Is the right to timely post-trial review turning into such a specter?

AFCCA issued a published decision today. United States v. Preciado, __ M.J. ___, No. ACM 35871 (f rev) (A.F. Ct. Crim. App. Oct. 23, 2008). In Preciado, when the case initially went to AFCCA it ordered a new post-trial action because Senior Airman Preciado's defense counsel during the post-trial review was at least potentially conflicted and the conflict was never resolved. 793 days after AFCCA originally remanded the case to Kirtland Air Force Base, the record finally made it back to Bolling.

In ruling on a post-trial delay challenge, AFCCA assures us that
"[c]onvicted service members are entitled to a timely review and appeal of court-martial convictions." Preciado, No. ACM 35871 (f rev), slip op. at 4. AFCCA then subjected the delay to the four-part Moreno/Barker v. Wingo test.

AFCCA first concluded that "taking 793 days to return the record of trial to this Court after our initial decision on 29 December 2005 is facially unreasonable." Id., slip op. at 5. Next, AFCCA observed that "[t]he government provides absolutely no plausible explanation for this lengthy delay." Id. The court then noted that "[c]onsidering the delay in this case was beyond the appellant's control and his new defense counsel did make several attempts to resolve the issue, we find [the assertion-of-the-right-to-a-timely-review-and-appeal] factor weighs in favor of the appellant." Id. As to prejudice, the court concluded: "[C]onsidering that it took the convening authority at least 18 months longer than it should have to change the findings of guilty of an indecent assault to a finding of guilty of an indecent act, we find that the appellant has experienced some anxiety greater than that anxiety normally experienced by an appellant waiting for an appellate decision. The appellant remained registered as a sex offender in his home state far longer than he would have had his case been properly processed." Id., slip op. at 6.

Wow -- a clean sweep! 4-for-4. One doesn't see that every day. (And in the top of the 9th, it doesn't look like we'll see it in this year's Fall Classic -- sorry Phillies fans.) Since it's a clean sweep, it's not surprising that AFCCA concluded that "our balancing of the four Barker factors leads us to conclude that the appellant was denied his due process right to speedy post-trial review and appeal." Id., slip op. at 7. But wait, there's more. AFCCA continued that even if there hadn't been prejudice, it still would have found a due process violation because "[t]he post-trial processing delay in this case was clearly egregious and illustrates a complete disregard for the constitutional protections afforded to an accused during the post-trial process." Id. The court concluded: "Taking 793 days to complete new post-trial processing after this Court has remanded a case is definitely outrageous and cannot be tolerated." Id. And to show its intolerance for the post-trial delay, AFCCA responds by (drum roll please): doing nothing. The court held that changing the findings or sentence as approved by the CA is neither "appropriate nor warranted in this case." Id., slip op. at 8.

The court did drop a footnote suggesting that when the CA reduced the findings of guilty to an LIO in the second action, he was "likely" motivated at least in part by the post-trial delay. Id., slip op. at n.5. Oddly enough, the previous footnote in the case said the court would assume that the CA would have granted that same findings relief even without the post-trial delay. Id., slip op. at 6 n.4.

So what's the lesson to be drawn from Preciado? That post-trial delay is intolerable? Or that post-trial delay will actually be tolerated?

[Disclaimer: I played a very minor role as a member of the large team of SrA Preciado's appellate defense counsel and my name appears on the opinion as one of his counsel.]

October issue of Army Lawyer online

The October issue of the Army Lawyer is now online here. Military justice types will be interested in an article by Major Elizabeth Harvey of Code 46 called Sentencing Credit for Pretrial Restriction, which is available here.

Wednesday, October 22, 2008

USDC Grants Watada Injunction on 3 of 5 Charges

Judge Settle of the U.S. District Court for the Western District of Washington yesterday granted 1st Lt. Ehren Watada's request for an injunction against the government re-trying him on 3 charges related to his refusal to deploy to Iraq. See Watada v. Head, No. C07-5549BHS (W.D. Wash. Oct. 21, 2008).

I won't recount the year old history of the case, which CAAFlog has covered on four prior occasions (1, 2, 3, and 4). However, the collective CAAFlog reaction to an Art. III court intervening in an on-going court-martial case is best summed up with a quote from my learned and eloquent CAAFlog colleague DHS, "Holy Cow!!!"

On the merits, the Judge's reasoning looks destined for appeal and a showdown over Schlesinger v. Councilman, 420 U.S. 738 (1975) (doctrine of equitable jurisdiction and abstention). This summary seems particularly a subject for attack under Councilman, particularly in light of the Court allowing the government to proceed on two other charges
Therefore, the Court’s assertion of jurisdiction over Petitioner’s double jeopardy claims on Charge I and Charge II, Specifications 1 and 4 is proper because Petitioner has exhausted his available remedies in the military courts and Petitioner would suffer great harm if the Court declined to intervene prior to the convening of the court-martial.

Judge Settle ruled that the government could re-try Watada on two conduct unbecoming charges that were dismissed "without prejudice to ripen into prejudice upon completion of trial proceedings." Since the plea proceedings were never completed, the Court reasoned, there is no double jeopardy issue. Amazingly, Judge Settle even leaves the door open for Watada to return to the Art. III courts should the military decide to retry him on these two charges. See Watada, No. C07-5549BHS, slip op. at 18.

Tuesday, October 21, 2008

The Ever Changing Iraqi SOFA

News outlets, WSJ (AP), Reuters, Aljazeera (I am just the messenger), etc., are confirming today that the Iraqi government is sending the draft Iraqi SOFA back to U.S. negotiators with revisions concerning troop presence and, possibly, jurisdiction over US military personnel. As we previously reported here and here, the issue of jurisdiction over US military personnel for crimes committed in Iraq has been a big part of the on-going negotiations.

We also previously reported, here, that the issue of jurisdiction over crimes committed by US military/government contractors in Iraq seemed to be settled. An AFP story, here, indicated that the Prime Minister suggested that private security contractors (PSCs) working in Iraq would be subject to Iraqi law beginning on January 1, 2009. However, a WSJ story today makes me think that those prior statements were either limited to PSCs or limited to non-criminal law. Here is what the AP report said, via WSJ:

The agreement would call for U.S. troops to leave the cities by the end of June and withdraw from the country by Dec. 31, 2011 unless the government asked them to stay. The draft would also provide limited Iraqi jurisdiction over soldiers and contractors accused of major, premeditated crimes committed off post and off duty.
That statement isn't a model of clarity, but the same general statement was repeated in other reports by AFP and the BBC. BBC reported that the current draft agreement stated:
The pact is said to grant Iraqi judicial authorities limited ability to try US troops and contractors for major crimes committed off-duty or off-base - and only then if a joint US-Iraqi committee agrees.
We'll update this post as more information becomes available.

UPDATE at 1721, 21 Oct 08: Two sources, WaPo and CNN, confirm that one of the "hot-button issue[s]" in the Iraqi Cabinet's opposition to the SOFA is jurisdiction over US forces.

Monday, October 20, 2008

Update on Iraqi SOFA - Cushions May Get Harder

CAAFlog mentioned, here, the draft Iraqi SOFA making its way through the Iraqi political process. Though many news outlets are focusing on the demands made by a faction of the Iraqi parliament for certain US troop withdrawal timetables, I noticed that the same bloc was also making demands concerning jurisdiction over US military personnel. From the front page of the WaPo:
The Shiite bloc, which includes Prime Minister Nouri al-Maliki's Dawa party, also insists that Iraqi officials have a bigger role in determining whether U.S. soldiers accused of wrongdoing are subject to prosecution in Iraqi courts, said Sami al-Askeri, a political adviser to Maliki. That proposal has been resisted by the Pentagon.

Sunday, October 19, 2008

Caveat LEXIS?

Uh-oh. Look at LEXIS's online version of United States v. Michael, 66 M.J. 78 (C.A.A.F. 2008) (2008 CAAF LEXIS 256). Notice that its synopsis of the case tells us that "BAKER, J., delivered the opinion of the Court, in which EFFRON, C.J., and STUCKY, J., joined. RYAN, J., filed a separate opinion concurring in part and in the result in which ERDMANN , J., joined." (emphasis added). Problem: LEXIS doesn't include the separate opinion, which you can read by looking at the case on CAAF's web site here.

This suggests to me that I've trusted LEXIS entirely too much in the past. It will substantially add to my research and writing time if I have to double check everything I find on LEXIS.

Have others seen similar problems on LEXIS or is this a highly atypical quality control lapse?

I don't have access to WESTLAW, but I'll look at the Military Justice Reporter tomorrow to see if the separate opinion appears there.

"DIG We Must"

This is my inaugural post as an official CAAFlog blogger. I appreciate the invitation to join the crew, and look forward to participating in the exchange of views.

Readers who grew up in New York may recall the saying that Con Edison used to display on barriers around its construction sites: "dig we must for a better New York," or words to that effect. In something of the same vein, it's not a surprise that the Court of Appeals DIGged [surely the past tense of DIG (dismissed as improvidently granted) cannot be "dug"] in Brown. DIG they must. If the fact on which the Court had specified an issue for review was wrong, it's no wonder they pulled the plug. This is, of course, the worst-case scenario for specifying an issue: sending the parties (and the Court itself) on what proves to be a wild goose chase.

There is no shortage of cases in which the Court has dismissed a grant as improvident:

"Upon reflection, the Court may also dismiss, e.g., United States v. Snyder, 46 M.J. 202 (1996) (mem.) (noting lack of factual basis for granted issue); United States v. Anderson, 41 M.J. 75 (1994) (mem.), vacate the grant as improvident, e.g., United States v. Hendon, 4 M.J. 256 (1978) (mem.), 6 M.J. 171, 172 (1979); United States v. Vick, 4 M.J. 235, 236 (1978) (mem.); United States v. Kennedy, 13 M.J. 465 (1982) (mem.); United States v. Chesney, 21 C.M.A. 358, 45 C.M.R. 132, 133 (1972); cf. United States v. Delacruz, 50 M.J. 221 (1998) (mem.) (3-1 decision) (dismissing specified issue as improvidently granted, and affirming), vacated, 50 M.J. 334 (1998) (mem.); United States v. Wilson, 46 M.J. 297 (1997) (mem.) (grant vacated without explanation); United States v. Counterman, 42 M.J. 81 (1995) (mem.) (grant vacated without explanation; petition denied); see also Eugene R. Fidell & Linda Greenhouse, A Roving Commission: Specified Issues and the Function of the United States Court of Military Appeals, 122 Mil. L. Rev. 117, 129 & n.63 (1988) (collecting cases), . . ."  [Rules Guide 12th ed.]

I have not done a survey recently, but my impression is that the number of specified issues remains quite low, unlike the one-in-three rate observed in the Court's early years. Is there a place for specified issues? I'm less troubled by the practice than I once was, but I still feel it should be quite a rare event for the Court to specify an issue. Do others share this view?

I wonder whether the issue specified in Brown was truly identified by the Court or the Central Legal Staff or whether it was a markup of something asserted perhaps unartfully in the Supplement. Perhaps one of our readers knows the answer.

The larger issue lurking behind Brown's specified-issue drama is that the DIG Order closes the door to Supreme Court review. Did the Supplement identify no issues?

New contributor

It is with great joy that I call everyone's attention to a new name in the "Contributor" list to the right of this post. I am thrilled to announce that Gene Fidell, the Florence Rogatz Visiting Lecturer in Law at Yale Law School and the President of the National Institute of Military Justice (among other claims to fame), has agreed to irregularly share some of his thoughts with us as a CAAFlog contributor. While the many demands on his time will necessarily prevent frequent blogging, I will savor the wisdom he shares with us.

Saturday, October 18, 2008

Online military justice journal invites submissions

The William & Mary Military Law Society's online Journal of Military and Veteran Law has asked us to announce that it is now accepting submissions for its 2009 issue. The Journal seeks articles and essays of any length about national security law, military law, and veteran law. Submissions should be sent to with the subject line, "JMVL Submission." Additional information about the Journal, including past issues, is available at

Hamdan Pre-trial Confinement Issue Papers

For those following the Hamdan pre-trial confinement issue, I give you the government's motion for reconsideration here and the defense opposition here. Not a lot of time for analysis, but I will say two things. It is amazing how the defense and government are changing positions in this case compared to the normal course of things. The government arguing error that was not preserved at trial and defense arguing deference to the actions of the commission. Second, the defense says little if anything on the merits about Geneva or other go to arguments for the Hamdan camp. Interesting how that works when you already have the upper hand.

Friday, October 17, 2008

Trick or treat

Two military cert petitions have been distributed for the Supremes' 31 October conference -- the pro se cert petition of Swanson v. United States, No. 08-6476, and the Ryan v. United States, No. 08-422, cert petition that we discussed here, here, and here.

CAAF disposes of third orally argued case

At this rate, CAAF will be done issuing this term's opinions before it's heard all of the oral arguments. Just one month into oral argument season, CAAF today decided a third argued case. In United States v. Brown, __ M.J. ___, No. 08-0260/AF (C.A.A.F. June 17, 2008), CAAF specified this issue:

Today, two days after hearing oral argument in the case, CAAF vacated the order granting review as improvidently granted. United States v. Brown, __ M.J. ___, No. 08-0260/AF (C.A.A.F. Oct. 17, 2008). In Supreme Court practice parlance, CAAF DIGged it.

CAAF observed:

On examination of the record, we have determined that the granted issue was based on an incorrect premise, namely that the evidence in the record of the sexually explicit content at issue involved only virtual minors. The record reveals, and the parties agree, that the record includes testimony that the sexually explicit content at issue includes depictions of actual minors.

Under these circumstances, the issue granted by this Court cannot be answered on the facts presented in this case. Upon further consideration of Appellant's petition for review, we conclude that the record does not establish good cause for review . . . .

Hamdan's Pre-Trial Confinement: Gov't Says Not So Fast Judge Allred

The WSJ Law Blog reports today (and is also reported in the WSJ online here) that the government has moved for reconsideration of the decision to award pre-trial confinement credit to GITMO detainee Salim Hamdan. According to the reports, the motion contends that Captain Allred "lacked authority to credit Hamdan for the time he served in pretrial confinement." It also provides this somewhat baffling quote from the chief GITMO prosecutor, "'The length of the sentence is a matter of indifference to us,' [Col. Lawrence] Morris said. He said that if the jury still wants Hamdan released on Dec. 31, it could re-sentence him to however many days remained until then."

There is no provision in the Military Commission rules for awarding pre-trial confinement credit. Servicemembers are, however, entitled to pre-trial confinement credit at courts-martial for confinement served in a military brig. See United States v. Allen, 17 M.J. 126 (C.M.A. 1984). However, as CAAF noted, that policy is based solely on a Department of Defense regulation, not any constitutional guarantee. See United States v. Smith, 56 M.J. 290 (C.A.A.F. 2002). We'll see how Captain Allred resolves this and, more than likely, how this issues works out on appeal---which will likely be too late to provide total relief to detainee Hamdan.

Thursday, October 16, 2008

Uncomfortable SOFA

Just in time for Halloween, this is scary:

"Iraq would have the first crack at prosecuting American troops and Pentagon contractors accused of major, premeditated crimes committed outside U.S. bases and when they were off duty under a draft security pact governing military operations in the country, Iraqi officials said Wednesday."

The rest of the article, courtesy of AP, the Air Force Times, and NIMJ in turn, is available here.

CAAFlog exclusive: new published AFCCA opinion [UPDATED]

Here's a link to United States v. Cofer, __ M.J. ___, No. ACM 37075 (A.F. Ct. Crim. App. Oct. 16, 2008), a new published Air Force Court opinion rejecting a challenge to a guilty plea to an Article 107 false official statement charge arising from an Airman's statement to a civilian police detective.

Senior Airman Cofer torched his own car as part of an insurance scam. He badly burned himself in the process. To cover up for his misdeeds and resulting injuries, which were committed off-base, he concocted a story about being kidnapped and forced to torch his own car.

A civilian police detective from a jurisdiction near the base interrogated him. Unbeknownst to SrA Cofer, an Air Force OSI agent was observing. Cofer began the interrogation by delivering his rather fantastic tale and ended it by confessing. In addition to facing a charge resulting from his arson, he found himself also facing a false official statement charge.

AFCCA affirmed, noting that the military judge had concluded the statement was official based on factors including the offenses' proximity to the base (though committed a few miles from Luke Air Force Base), the civilian police department's proximity to the base, the civilian detective's knowledge that Cofer was in the Air Force, and the civilian detective's decision to involve AFOSI in the case.

Applying CAAF's decision in United States v. Day, 66 M.J. 172 (C.A.A.F. 2008), which was decided after SrA Cofer was tried, AFCCA affirmed.

I hope that CAAF will grant review of this case. I find treating Cofer's statements as "official" for UCMJ purposes a bit of a stretch. But I'm less interesting in whether Cofer can or can't get out of his guilty plea than I am in getting a better understanding of Day. Day involved an Airman Basic who injured his child and then lied to emergency responders about the causes of the injury. The opinion does a good job of explaining why AB Day was guilty of making a false official statement to the firemen who came to his house even though they were civilians and he was off-duty. But the case summarily sets aside the finding of guilty to making a false statement to the off-base operator who dispatched the emergency providers. While that is probably the right result, the opinion doesn't make clear why the result is different for the off-base operator than for the emergency responders. And it muddies the water further by dropping a footnote indicating that in some cases, false statements to off-base operators can violate Article 107. We need more guidance concerning when statements to off-base civilian government officials do and don't fall within Article 107. Cofer provides a good opportunity for CAAF to further clarify its case law in this recurring area.

CAAF issues this term's first opinion of the court

CAAF has only been holding oral arguments this term for a month and already it has decided two of the argued cases. The first was a summary disposition; today CAAF announced the term's first opinion of the court, reversing NMCCA in a unanimous opinion written by Judge Ryan. United States v. Burch, __ M.J. ___, No. 08-0092/MC (C.A.A.F. Oct. 16, 2008).

NMCCA's decision in Burch seemed like an opinion in search of a smack-down. NMCCA held that even though the accused was actually confined for seven months beyond what the plain language of the convening authority's action allowed, the error was harmless because we all know that the CA meant to order that extra seven months executed. United States v. Burch, No. NMCCA 200700047, 2007 CCA LEXIS 351, 2007 WL 2745706 (N-M. Ct. Crim. App. Sept. 13, 2007). NMCCA's opinion contained the classic line, "At first blush, our two-part analysis may appear internally inconsistent." Id., slip op. at 8. But no, argued NMCCA, it isn't. Yes, held CAAF, it is.

CAAF held: "[W]here a clear and unambiguous action is the convening authority's last action delimiting the period of confinement to be served, an accused is prejudiced by being confined for a period in excess of the authorized sentence. The United States Navy-Marine Corps Court of Criminal Appeals (CCA) erred in relying on facts and circumstances predating the convening authority's unambiguous action to find that Appellant was not prejudiced." Burch, No. 08-0092/MC, slip op. at 2.

CAAF reasoned: "The CCA's conclusion that Appellant was not prejudiced explicitly rests on facts extrinsic to and predating the convening authority's action, ignoring the significance and timing of the action itself and our holding in" United States v. Wilson, 65 M.J. 140 (C.A.A.F. 2007). Id., slip op. at 4.

CAAF also delivered this rebuke: "The CCA cited no legal authority for the novel precept that confinement not authorized by a convening authority's action does not prejudice an accused because events preceding the action suggest that at one time the convening authority 'did not intend to release Appellant from confinement prior to completion of his adjudged sentence.'" Id., slip op. at 5. Contrary to NMCCA's view, CAAF concluded that "the prejudice in this case is both obvious and apparent and may not be attenuated by facts predating the final action of the convening authority." Id., slip op. at 6.

As a remedy, CAAF ordered the record returned to NMCCA "to determine and award meaningful sentence relief to Appellant." Id., slip op. at 7.

Wednesday, October 15, 2008

Capital court-martial sitrep

According to this article from the lower Hudson Valley's Journal News, the ongoing capital court-martial of Army Staff Sergeant Alberto Martinez is mired in the member selection stage. While the trial on the merits was expected to start at Fort Bragg this week, opening statements have now "been postponed until further notice." Staff Sergeant Martinez is charged with two specifications of premeditated murder arising from the deaths of his company commander and another officer from the 42nd Infantry Division in Tikrit, Iraq.

In other Fort Bragg capital court-martial news, the Fayetteville Observer reports here that the retrial of Sergeant William Kreutzer, expected to start in January, will likely be pushed back further. When ACCA originally reviewed the case, it affirmed the findings of guilty to offenses to which Kreutzer had pleaded guilty and set aside the findings of guilty to premeditated murder and 18 specs of attempted premeditated murder and set aside the death sentence. United States v. Kreutzer, 59 M.J. 773, 784 (A. Ct. Crim. App. 2004). CAAF affirmed. United States v. Kreutzer, 61 M.J. 293 (C.A.A.F. 2005). From the Observer article, it appears that the issue of whether Sgt Kreutzer should be allowed to withdraw his pleas of guilty that ACCA has already affirmed is somehow back before ACCA. But the article doesn't suggest what procedural mechanism returned the case to ACCA. Can anyone shed further light on this? Army Lurker? Bueller? Bueller?

Interesting article

Here's a link to a page from NIMJ's web site where you can access a very interesting article by Gene Fidell about CAAF's practices and jurisprudence. Eugene R. Fidell, Zen and the Jurisprudence of the United States Court of Appeals for the Armed Forces, 46 Mil. L. & L. of War Rev. 393 (2007).

Tuesday, October 14, 2008

Garner's work is never done

From Garner: "It is rank superstition that [and] cannot properly begin a sentence. . . . Schoolteachers may have laid down a prohibition against the initial and to counteract elementary-school students' tendency to begin every sentence with and. As Follett and Amis point out, the same superstition has plagued but. The very best writers find occasion to begin sentences with and . . . ." Bryan A. Garner, Garner's Modern American Usage 44 (2003). He similarly offers, "Like And and But, So is a good word for beginning a sentence." Id. at 733. And he observes, "There's an odd myth that it's poor grammar to begin a sentence with because. . . . [T]he 'rule' has never had any basis in grammar, and good writers often have occasion to put the cause before the effect . . . ." Id. at 89.

From my second grader's homework instructions tonight: "Remember that sentences do not begin with the words and, so, but, because and to." To err is human . . . .


CAAF granted review of two cases on Thursday -- one a Marine Corps case and the other from the Army.

Here's the issue in the Marine case: "WHETHER APPELLANT SUFFERED PREJUDICE, FOR PURPOSES OF ARTICLE 59(a), UCMJ, WHERE THE CHARGE OF RAPE OF A CHILD, WITHDRAWN AND DISMISSED 'WITH PREJUDICE' AT APPELLANT'S FIRST COURT-MARTIAL, WAS REINSTITUTED AT APPELLANT'S REHEARING." United States v. Smead, __ M.J. ___, No. 08-0376/MC (C.A.A.F. Oct. 9, 2008). Here's a link to NMCCA's unpublished opinion in the case. United States v. Smead, No. NMCCA 200201020 (N-M. Ct. Crim. App. Jan. 10, 2008). And here's my favorite sentence from that opinion: "Despite the Government's concession on this issue, we find this assignment of error to be without merit, see United States v. Madigan, 54 M.J. 518, 521 (N.M.Ct.Crim.App. 2000), and will not discuss it further." Id., slip op. at 9-10. (That sentence concerning a UMC issue, not the issue granted by CAAF.)

The other granted case presents this issue: "WHETHER, AFTER FINDING THE EVIDENCE FACTUALLY INSUFFICIENT TO SUPPORT A FINDING OF GUILTY TO CHARGE III AND ITS SPECIFICATION (RESISTING APPREHENSION), THE COURT OF CRIMINAL APPEALS COULD AFFIRM A FINDING OF GUILTY TO A LESSER INCLUDED OFFENSE ON A THEORY NOT PRESENTED TO THE TRIER OF FACT." United States v. Miller, __ M.J. ___, No. 08-0580/AR (C.A.A.F. Oct. 9, 2008). ACCA's unpublished opinion in the case is available here. United States v. Miller, No. ARMY 20060224 (A. Ct. Crim. App. Mar. 24, 2008).

Monday, October 13, 2008

Some thoughts on the new NMCCA courtroom

Twenty-three miles north of where I sit are two sublime sports stadiums, each peculiarly well-suited to its function: Orioles Park and Camden Yards and whatever the Ravens' stadium is called this week. The older of the two, Orioles Park at Camden Yards, was built in 1992. If it didn't singlehandedly end the era of the duel-use sports stadium, it at least drove a stake through that blighted era's heart. If only it had also prevented the dual-use courtroom.

The disappointing new courtroom in the Washington Navy Yard is designed for use as both a trial-level and appellate courtroom. And it suffers due to its lack of a focused purpose. While I haven't seen an actual oral argument in the courtroom, if it is configured for appellate arguments as it was the day I saw it, then I think it will have the widest gap between the podium and the bench of any appellate courtroom I've ever seen. (See a picture of the courtroom on the second page of this link.) And that is a horrible blow to functionality. The ideal oral argument isn't an oration, but a conversation. The old tiny, intimate NMCCA courtroom on the first deck of the Washington Navy Yard's Forge Building was perfectly configured to promote conversation. But in the new courtroom, with its huge well, the advocate may feel the need to use a bullhorn to be heard at the bench. (Even the Building 200 courtroom used in the interim between Building 111 and Building 58 had a well-worn charm that is absent from its successor.)

Another blow to functionality concerns the building's exterior. Architecturally, the building is pleasantly plain. Its subtle architectural features -- including a small brick cornice and soldier course brick arches above the windows on the front elevation -- are even more understated because of the uniform white-wash exterior. And the traffic light sticking out from the building's east elevation is delightfully quirky in a naval space-saving kind of way. But it isn't at all apparent to me how a member of the public actually gets into the building. I had an appointment each of the two times I've been there, and I was barely able to get in. According to the JAGMAG article about the courtroom, "Facility requirements included both public and restricted entry." It seems to have failed to meet the former criterion.

Apart from these functionality problems, the courtroom is architecturally incoherent in the most literal sense of the word. At the University of Virginia there is a story -- probably apocryphal -- that attempts to explain why the University's chapel is a revival Gothic stone structure while all the buildings around it are neo-classical brick edifices. There was a mix-up in building materials intended for the UVA chapel, so the story goes, and Sage Chapel at Cornell University -- which is made of brick while all the buildings around it are stone structures. Well perhaps someone mixed up the plans for the NMCCA courtroom's ceiling with those intended for another courtroom and some jurisdiction has a brand-new modern industrial courtroom with a classical ceiling. Because the interplay between the new NMCCA's courtroom and its overhead is so discordant that the most charitable possible explanation is a mix-up in the building plans. You can see some of this effect in the picture available through the link above, though you've got to sit in the courtroom to appreciate the full effect. From the floor to about nine feet up the walls, the courtroom is traditional but boring. Unfortunately, nothing in the courtroom is evocative of a naval experience -- this could be a county courtroom in just about any state in the Union. What a missed opportunity. Worse still, the marble in the courtroom -- no doubt intended to give the room a classy feeling -- looks like something out of a mid-range tract McMansion. It suggests not class, but an attempt at classiness. But from nine feet or so up, the room is exposed industrial -- with ceiling supports and HVAC equipment visible from the traditional courtroom below.

I suspect that functionality concerns -- so overlooked in the building's exterior -- suddenly took over in the courtroom itself and explain the architect's bizarre choices. The traditional courtroom is good for acoustics while the exposed industrial look was probably designed to allow light into the room from the skylights in the ceiling above. But these were hardly the only available choices. The very pleasant and functional AFCCA courtroom has a stark white drop ceiling made of metal panels formed with faux plaster design elements. And even with the louvered window shades partially closed during oral arguments, the AFCCA courtroom is brighter than the NMCCA courtroom with its large skylights. So a traditional courtroom with a cost-effective traditional ceiling was an option. Alternatively, the ACCA courtroom has a modern feel, with its wood-and-glass bench. (See an artist's rendition here.) If a major goal of the new NMCCA courtroom's design was to bring in natural light from above, then a courtroom designed like ACCA's could have fit well with the exposed ceiling supports and HVAC ducts. But unfortunately, no concern for symmetry was displayed.

The failure of NMCCA's courtroom is even more disappointing in light of the stunning architectural successes sprinkled throughout the Washington Navy Yard -- the Navy's oldest base and former Naval Gun Factory that now provides office space for thousands of naval servicemembers and bureaucrats. Consider, for example, the Washington Navy Yard's "town center" in Building 21. The building was once used to make huge guns for Navy warships -- and an enormous hook on a track that once slid molten metal across the production floor now looms over the dining area, giving the whole place a dynamic feel. Maybe one of the problems with the Building 58 renovation is that the structure was originally a barracks, later a storehouse, and finally a museum before its conversion to the "Appellate Center of Excellence." (Unfortunately, no, I'm not making up that name -- and certainly no one will be tempted to call it an architectural center of excellence.) So perhaps a cause of the courtroom's -- and entire building's -- lack of drama is the lack of drama in the building's history. But more could have been done to give the courtroom a sense of purpose and place.

With the money spent, it's probably too late to attempt to harmonize the courtroom's discordant elements -- or even to reduce their clash. But some things can be done to improve functionality. Signs could be placed on the building's exteriors to give visitors a clue how to gain entry. And while I'm not sure whether electronics require the podium to remain anchored where it is in the picture, if not, it should be pushed far closer to the bench. And surely some nautical elements can be added to give the courtroom a naval feel.

But even with such improvements, the Navy Yard's new dual-use courtroom will still disappoint. While I haven't been to the current CGCCA courtroom (though I once attended a CGCMR argument at Buzzards Point), NMCCA's courtroom as currently configured is the least successful of the military appellate courtrooms I have visited.

Sunday, October 12, 2008

WaPo article posits that the Bush Administration is softening its opposition to the ICC

Here's a link to today's Washington Post article on the Bush Administration's stance toward the ICC and Darfur.

Saturday, October 11, 2008

Congressional Research Service issues report on SCOTUS jurisdiction over CAAF cases

A Congressional Research Service report called, "Supreme Court Appellate Jurisdiction Over Military Court Cases," issued on 6 October, is available here.

(h/t: NBM3)

SG waives response in Ryan

The Solicitor General (no longer -- to quote Jon Lovitz -- "Acting" following Senate confirmation on 2 October 2008) has waived the United States' right to respond to the military cert petition in Ryan v. United States, No. 08-422, which we previously discussed here.

Thursday, October 09, 2008

CAAF already decides a case argued this term

Greetings from the road.

On 22 September, CAAF heard oral argument in the case of United States v. Gogue, No. 07-0826/AR. Now the decision in that case is already in the books -- or, to be more accurate, on the Web.


CAAF has already decided the case. On Tuesday, it released a summary disposition providing: "On consideration of the briefs and oral arguments of the parties on the granted issues (66 M.J. 287 (C.A.A.F. 2008)), it appears that the parties now agree that Appellant is entitled to 89 additional days of confinement credit. The Court adopts the position of the parties. Accordingly, it is ordered that the decision of the United States Army Court of Criminal Appeals is set aside, and the record is returned to the Judge Advocate General of the Army for remand to the United States Army Court of Criminal Appeals to provide meaningful relief." United States v. Gogue, __ M.J. ___, No. 07-0826/AR (C.A.A.F. Oct. 7, 2008) (mem.).

Tuesday, October 07, 2008

New issue of JAG magazine online

I'll be out of town for a couple of days, so I want to give you something to read while I'm gone. The new issue of JAG magazine (or, as I like to call it, JAGMAG) is available here. It includes an article on the newly renovated building that now houses the Navy-Marine Corps Court of Criminal Appeals and the two naval appellate divisions. I recently had a chance to see the new NMCCA courtroom (a picture of which is on page 18 of the JAGMAG) and it's far from an architectural triumph. I'll post some thoughts about the new courtroom this coming weekend.

In addition to being away tomorrow through very late Thursday, I'll be on the road Sunday and maybe Saturday as well. I hope my colleagues keep you informed in the meantime. The good news is that I plan to buy a G1 when they come out later this month, so this may be the last time I'm off the Web just because I'm traveling.

Court Martial News - Monday, now Tuesday, Roundup

I was sorting through all of my News Alerts today and thought I would post some of the more interesting stories. The "D" in my DSL connection stands for Disney right now, so excuse any post that may be way behind the times.

  • Alleged fragging court-martial of Sgt. Alberto Martinez to begin on Tuesday. I had to link to this story from WRAL in Raleigh-Durham, here. See if you can spot the three major substantive/factual inaccuracies in the story. Other reporting here.
  • Another pseudo-frag court-martial alleges that Sgt. Joseph Bozicevich killed two superior NCOs. The case is headed to a likely Art. 32 hearing at Fort Stewart. See AP report here.
  • The Weemer and Nelson courts-martial took another turn as the government delayed the Nelson case in an attempt to, or at least as defense counsel described it, force Nelson to testify against Weemer. See AP report here. The two are charged with murdering Iraqi detainees in a house during the Battle for Fallujah. The alleged ring leader of the incident, Sgt. Luis Nazario, was acquitted after Weemer and Nelson refused to testify in his MEJA prosecution. While defense counsel are protesting the delay as a means to "intimidate" Nelson into testifying or face obstruction of justice charges, the situation was precipitated by the non-cooperation of the two after repeated grants of immunity.
  • Army Specialist Stephan A. Ribordy was sentenced on Thursday, Oct. 2, as reported by Stars and Stripes here. Ribordy pled guilty to acting as a lookout and assisting in discarding the bodies of four Iraqi detainees. The alleged shooters in the incident, senior NCOs from Ribordy's Company, are charged with premeditated murder. S&S described the eight month/BCD sentence as follows:
    The judge sentenced Ribordy to five years’ confinement but under a pretrial agreement — in which Ribordy agreed to testify in future trials in the case — the sentence was reduced to eight months.

Monday, October 06, 2008

What does CAAF cite?

For a lecture I gave at Friday's Judge Advocates Association/CAAF appellate advocacy symposium, I thought it would be interesting to look at what CAAF cites in its opinions.

I surveyed 20% of CAAF's opinions from last term and counted every citation of authority. (Each citation of authority was counted once per case. So, for example, if Moreno was cited 10 times each in 2 opinions, it would be counted twice.)

Here are the top five kinds of authority that CAAF cited with the percentage of all cites that fall within that particular category:

1. CAAF/CMA opinions (42%)
2. Supreme Court opinions (19%)
3. Article III Courts of Appeals opinions (15%)
4. CCA/CMR opinions (5%)
5. UCMJ articles (5%)

When you throw in a few stray judicial opinions from other sources, 82% of all citations of authority in the surveyed cases were case law. And R.C.M.s, M.R.E.s, and Part IV of the MCM didn't crack the top five (though M.R.E.s were the sixth most cited kind of authority and R.C.M.s were the seventh most cited kind of authority).

But it probably makes sense why so many more cases would be cited than statutes or rules. Consider a case like United States v. Bright, 66 M.J. 359 (C.A.A.F. 2008). The essence of the case concerns a single UCMJ provision: Article 120. But the case cites five different CAAF/CMA opinions construing Article 120 (Simpson, Hicks, Cauley, Webster, Clark). Bright also includes a smattering of other CAAF/CMA cases for questions such as the standard of review. So in our common law system, where case law provides a layer of analysis on top of the statutory language, it's probably the norm rather than the exception for a breakdown of authority cited by a court to include more cases than statutes and rules.

CAAF declines to stop post-trial processing in Ali

The No Man has previously noted the petition for extraordinary relief filed by a non-citizen civilian accompanying our military forces, who was convicted by court-martial but received a subjurisdictional sentence. Today's online daily journal update reveals that on Thursday, CAAF declined to stop the convening authority's post-trial processing of the case. Ali v. Austin, __ M.J. ___, No. 09-8001/AR (C.A.A.F. Oct. 2, 2008).

Cert denied

In addition to Stevenson, No. 07-1397, eight other military cert petitions were denied today:

Rigby v. United States, No. 07-1549
Larson v. United States, No. 08-114
Thomas v. United States, No. 08-117
Adams v. United States, No. 08-170
Moorefield v. United States, No. 08-19
Hart v. United States, No. 08-193
Baker v. Dep't of the Army, No 08-5432
House v. United States, No. 08-60

The Supremes denied cert in Stevenson

More news later.

Sunday, October 05, 2008

CAAF flips Phillippe -- again

I'm horribly confused. In United States v. Phillippe, 63 M.J. 307 (C.A.A.F. 2006), CAAF knocked down a three-year UA to a 49-day UA. CAAF ordered that the record be "remand[ed] to the United States Army Court of Criminal Appeals for reassessment under Sales, 22 M.J. at 307-08, or a rehearing may be ordered if appropriate." Id. at 312. When the case went back to ACCA, in an opinion available here, it concluded that "we cannot be reasonably certain of what sentence might have been adjudged and approved for a forty-nine day absence." United States v. Phillippe, No. ARMY 20040616, slip op. at 1 (A. Ct. Crim. App. Sept. 11, 2006). ACCA set aside Private Phillipe's sentence and returned the record to the CA for a "rehearing on the remaining period of absence without leave, if practical, and the sentence." Id., slip op. at 2. The case then drops off the radar. I can't find anything on the Web telling me what happened on remand to the CA or what happened at ACCA when the case returned to that court. But last Tuesday, CAAF set aside whatever ACCA did in a summary disposition that granted review of the following issue: "WHETHER THE ARMY COURT OF CRIMINAL APPEALS ABUSED ITS DISCRETION IN REASSESSING APPELLANT'S SENTENCE, HAVING ALREADY CONCEDED THAT IT COULD NOT BE REASONABLY CERTAIN WHAT SENTENCE MIGHT BE IMPOSED AT THE TRIAL LEVEL." United States v. Phillippe, __ M.J. ___, No. 05-0674/AR (C.A.A.F. Sept. 30, 2008). CAAF summarily concluded "that the Court of Criminal Appeals abused its discretion in reassessing Appellant's sentence." Id. CAAF reversed ACCA as to the sentence and kicked the case back to the Army JAG.

What could ACCA possibly have done in its third look at the case that resulted in that outcome? Army Lurker, if you're still out there, could you please explain this one?

ACCA analyzes Military Rule of Evidence 804(b)(6)

United States v. Marchesano, __ M.J. ___, No. ARMY 20060388 (A. Ct. Crim. App. Oct. 2, 2008), is yet another military child molestation case. And like many child molestation cases, it presents a number of hearsay issues. ACCA's published opinion in Marchesano explores a seldom-seen Military Rule of Evidence: MRE 804(b)(6), which provides that a statement is not excluded by the hearsay rule if the declarant is unavailable as a witness and the declarant's statement is "offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness."

In a case of first impression, ACCA sets out a four-part test that must be met for Rule 804(b)(6) to apply: "(1) the witness was unavailable through the actions of another; (2) the act of another was wrongful in procuring the unavailability of the witness; (3) the accused expressly or tacitly accepted the wrongful actions of another; and (4) the accused did so with the intent that the witness be unavailable." Marchesano, slip op. at 12. ACCA also holds that "preponderance of the evidence is the proper standard of proof at trial."

ACCA goes on to hold that the military judge erroneously applied Rule 804(b)(6) to admit a hearsay statement she should have excluded. But ACCA ultimately concludes that the error was harmless and upholds SGT Marchesano's conviction and sentence.

Saturday, October 04, 2008

Ryan cert petition redocketed

We previously discussed the cert petition in Ryan v. United States, which challenged the Navy-Marine Corps Appellate Defense Division counsel's refusal to file a cert petition on behalf of a Marine corporal whose court-martial results were affirmed by NMCCA and CAAF. We later noted that the cert petition had been returned to counsel to correct some formatting errors.

The Ryan cert petition has now been refiled and docketed by the Court. Ryan v. United States, No. 08-422. I haven't seen the actual cert petition, so I don't know to what extent it departs from the original petition, which is available here.

Friday, October 03, 2008

New published ACCA decision

United States v. Marchesano, __ M.J. ___, No. ARMY 20060388 (A. Ct. Crim. App. Oct. 2, 2008).

We'll post more over the weekend on Marchesano and at least one other military justice development.

Wednesday, October 01, 2008

New article on Article 119a

The September Army Lawyer is online with an article about the relatively new Article 119a. Major Kirsten M. Dowdy, Article 119a: Does It Protect Pregnant Women or Target Them?, Army Law., Sept. 2008, at 1.

NMCCA early warning system down

Navy Knowledge Online has been remapped. In the process, the link to NMCCA opinions appears to have been broken. Until (unless?) it's fixed, we won't be able to access NMCCA opinions before they're actually posted to the court's web site. If anyone learns of a new published NMCCA opinion, please let us know.

Clouds on Stevenson's horizon

We've been closely following LCDR Eric Eversole's cert petition in Stevenson v. United States, No. 07-1397. Stevenson went to conference on Monday. Today the Supremes announced 10 cert grants from that conference. Stevenson wasn't among them. While there's a small chance that it was relisted, this development almost certainly means that on Monday the Supremes will announce they've denied cert in Stevenson, along with eight other military cert petitions that went to conference on Monday.

A Westerbergian analysis of Kennedy v. Louisiana

I'm a great fan of The Replacements. Apparently the Supremes are too. Because today they seemed to be singing the refrain, "You be me for a while and I'll be you."

As the No Man reported earlier today, the Supremes split 5-2-2 on whether to reconsider their decision in Kennedy v. Louisiana. Here's an excerpt from the five-justice majority's statement respecting the denial of rehearing:

[W]e need not decide whether certain considerations might justify differences in the application of the Cruel and Unusual Punishments Clause to military cases (a matter not presented here for our decision). Cf. Loving v. United States, 517 U. S. 748, 755 (1996).
Note that four of the five justices who signed onto that statement signed onto this statement in 1996:

[W]hen the punishment may be death, there are particular reasons to ensure that the men and women of the Armed Forces do not by reason of serving their country receive less protection than the Constitution provides for civilians.
Loving, 517 U.S. at 774 (Stevens, J., concurring).

So today four justices (Stevens, Souter, Ginsburg, Breyer) said that they don't have to answer a question that they appeared to answer twelve years ago.

Now consider this passage from Justice Scalia's statement respecting denial of rehearing, which was joined by Chief Justice Roberts:

JUSTICE KENNEDY speculates that the Eighth Amendment may permit subjecting a member of the military to a means of punishment that would be cruel and unusual if inflicted upon a civilian for the same crime. . . . It is difficult to imagine, however, how rape of a child could sometimes be deserving of death for a soldier but never for a civilian.
That passage was written by the same justice who opined in Weiss that while "no one can suppose that [protections similar to those in the UCMJ] against improper influence would suffice to validate a state criminal-law system in which felonies were tried by judges serving at the pleasure of the Executive," such a system is constitutionally permissible to try servicemembers. Weiss v. United States, 510 U.S. 163, 198 (1994) (Scalia, J., concurring).

Let's consider a hypothetical. We've previously noted that a Navy convening authority actually attempted to obtain a death sentence in a 1989 court-martial for rape without murder. United States v. Straight, 42 M.J. 244 (C.A.A.F. 1995). Let's suppose that a CA refers a stateside child rape case capitally and it results in a death sentence. Let's also hypothesize that the Supremes grant cert in the case and the four justices from Justice Stevens' Loving concurrence vote to invalidate the death sentence under Kennedy. Would Justice Scalia provide the fifth vote, applying his new found civilian-servicemember equality rationale? To quote Justice Scalia, "Do not believe it." Lawrence v. Texas, 539 U.S. 558, 604 (2003) (Scalia, J., dissenting).

Yet another factual error in Kennedy v. Louisiana

The No Man has a post below about today's developments in Kennedy v. Louisiana. I'll have more to say about those developments later. But for the moment, let's look at yet another factual mistake by the majority in the case. In his statement respecting denial of rehearing written on behalf of all the justices in the original majority, Justice Kennedy writes:

There are six individuals now subject to a final sentence of death under the UCMJ, see NAACP Legal Defense and Educational Fund, Inc., Death Row U. S. A. 66 (Winter 2008), all of whom committed offenses that involved the death of a victim.
I'm not sure what the word "final" means in that sentence (does he mean "approved"?). But regardless of what "final" means, the sentence is wrong. There are currently only five individuals sentenced to death under the UCMJ.

It's apparent why Justice Kennedy got that wrong -- he cites NAACP LDF's authoritative Death Row U.S.A. as the source of his numbers. But on page 1 of the Winter 2008 Death Row U.S.A. issue, the words, "As of January 1, 2008" appear in huge type. Had Justice Kennedy written that as of January 1, 2008, there were six individuals subject to a sentence of death under the UCMJ, he would have been right. But as we know, since January 1, 2008, the Navy-Marine Corps Court of Criminal Appeals set aside LCpl Wade Walker's death sentence, a decision that is now final (though he remains vulnerable to being resentenced to death). United States v. Walker, 66 M.J. 721, 757 (N-M. Ct. Crim. App. 2008) ("The sentence is set aside and a rehearing on sentence is authorized."). So when Justice Kennedy writes that there are six individuals "now" subject to military death sentences, he is wrong.

Of course this is a hyper technical point with absolutely no effect on the outcome. But the law is a hyper technical profession.

I'm not arguing that Justice Kennedy should have discovered that a military death sentence was set aside on appeal this year -- though with only six cases to check, it wouldn't have required much effort to make that discovery. But it should have been apparent that he was seeking to establish the state of affairs "now" on the basis of statistics that are exactly 10 months old. And it should have been apparent that that's not legitimate. Consider that on January 1, 2007, the Dow Jones Industrial Average closed at 13,264.82 and today, well, it didn't.

What lessons should we draw from this latest demonstration of the Supreme Court's fallibility? Everyone makes mistakes -- even brilliant Supreme Court justices and clerks. But are there less prosaic lessons to be drawn?

We immediately saw the two mistakes in Kennedy because we're specialists. But the Supreme Court is necessarily a generalist institution. In Isaiah Berlin's taxonomy, we're hedgehogs but Supreme Court justices are foxes. My guess is that specialists in other areas of the law -- admiralty, anti-trust, intellectual property, etc. -- see similar errors when the Supremes venture into their hedges. Which calls to mind once again Justice Jackson's famous quip: "We are not final because we are infallible, we are infallible only because we are final." Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J., concurring).

Of course, there is another possibility -- that military justice is a low-prestige area of the law that Supreme Court justices and clerks handle with less care than they handle other high-prestige specialty areas, like anti-trust or intellectual property. In other words, we're hedgehogs who inhabit a particularly ugly hedge. While I think the ugly hedge theory helps to explain the original mistakes in Kennedy, I doubt it applies to the mistake in today's opinion, which wasn't something that required any military justice expertise to avoid. And one would have thought that Justice Kennedy's chambers would have been extra-careful correcting the previous opinion -- though, for whatever reason, apparently it wasn't. So I'm inclined to chalk this one up to the "everyone makes mistakes" explanation.