The military justice system from a victim's perspective

Here's a link to an article from the Pike County (Pennsylvania) Courier about the Martinez capital court-martial written by the widow of one of the two officers Staff Sergeant Martinez is charged with killing. And here's a link to an LA Times article about both of the widows.

This week in military justice -- 30 November 2008 edition

This week at the Supreme Court: Two military cert petitions have been distributed for Friday's conference, the pro se IFP cert petition in Lucero v. United States, No. 08-7196, and the Air Force Appellate Defense Division's cert petition in Seawell v. United States, No. 08-588. Both appear headed for certain denial.

This week at CAAF: CAAF will hear four oral arguments this week. On Tuesday, it will hear arguments in Brown v. United States, No. 08-0261/AR. CAAF's web site explains: "Granted issue questions whether the phrase 'with intent unlawfully to obtain an advantage, to wit: sexual relations,' in the specification of charge II states the offense of extortion in light of the provision in the Manual for Courts-Martial that provides that 'an intent to make a person do an act against that person's will is not, by itself, sufficient to constitute extortion.'"

Tuesday's second argument will be in United States v. McCracken, No. 08-0440/MC. The issues in McCracken are: "(1) whether the lower court erred by affirming a lesser-included offense based on a theory of criminality not presented by the Government at trial; and (2) whether the lower court erred in reassessing Appellant's sentence instead of remanding the case for a sentence rehearing."

On Wednesday, CAAF will hear argument in United States v. Gladue, No. 08-0452/AF. The issue there is "whether the lower court erred when it found that a provision in Appellant's pretrial agreement to 'waive all waivable motions' was an express waiver that bars Appellant from asserting any claims of multiplicity or multiplication of charges on appeal."

Wednesday's second argument will be in United States v. Rogers, No. 08-0518/AF. The issue in Rogers is "whether the military judge erred in denying Appellant's motion to suppress his hair test results."

This week at the CCAs: On Wednesday, the Navy-Marine Corps Court will hear en banc oral argument in United States v. Crotchett on these two issues:

WHETHER THE MILITARY JUDGE ERRED IN HOLDING THAT ARTICLE 120, UCMJ, IS UNCONSTITUTIONAL AS APPLIED BECAUSE, WHEN THE ACCUSED ASSERTS THE AFFIRMATIVE DEFENSE OF CONSENT, ARTICLES 120(c)(2), 120(r) and (t), AND R.C.M. 916, COMBINE TO IMPERMISSIBLY SHIFT THE BURDEN OF PROOF TO THE ACCUSED REGARDING THE SECOND ELEMENT OF THE OFFENSE OF AGGRAVATED SEXUAL ASSAULT.

IN THE EVENT ARTICLES 120(c)(2), 120(r) and (t), AND R.C.M. 916, COMBINE TO IMPERMISSIBLY SHIFT THE BURDEN OF PROOF TO THE ACCUSED REGARDING THE SECOND ELEMENT OF THE OFFENSE OF AGGRAVATED SEXUAL ASSAULT, IS ARTICLE 120 SEVERABLE, SUCH THAT ONE OF MORE OF THE CITED SECTIONS MAY SURVIVE CONSTITUTIONAL SCRUTINY.

This week at the trial level: Evidence on the merits is expected to close tomorrow in the Martinez capital court-martial at Fort Bragg. Closing arguments are expected on Tuesday. If the members unanimously find Staff Sergeant Martinez guilty of at least one premeditated murder, then the case will proceed capitally on sentencing, where the authorized sentences will be death, confinement for life without eligibility for parole (LWOP), and confinement for life. If Staff Sergeant Martinez is found guilty of at least one premeditated murder but is not unanimously found guilty of either premeditated murder, then the authorized sentences will be LWOP and confinement for life. If he is not found guilty of both premeditated murders but is found guilty of an LIO or some other charge, then the case will proceed to sentencing with no mandatory minimum. And, of course, if he is found not guilty of all charges and specifications, then the case is over.

As always, please let us know if you're aware of other cases that should be included in our "This week in military justice" segment. You can reach us by e-mail at caaflog@caaflog.com.

Hear ye

Okay, here's my promised piece following up on a suggestion by my learned former opposing counsel, Frank the Cat. The Cat suggested that audio of CCA arguments should be publicly available, just as audio of CAAF's arguments is accessible to anyone with an Internet connection and a computer speaker.

I've researched this issue because I have a motion pending before the Air Force Court to allow recording of arguments in an ongoing capital appeal, since that's the only way the appellant can hear the proceedings in his own case. So let's look at what we know.

Joint Courts of Criminal Appeals Rule 27 authorizes a CCA to tape its proceedings. I contacted the clerks of each of the four Courts of Criminal Appeals to determine whether they record oral arguments. The Army, Air Force, and Navy-Marine Corps Courts do not. The Coast Guard Court does, but indicates that it does so only for its judges' uses and won't make the tapes available to anyone else. But I suspect that if a FOIA request were submitted for an audiorecording of an argument, the recording would be deemed a releasable document. If someone were to successfully obtain such a recording through FOIA, CGCCA might decide to stop taping future arguments, though I don't really understand why the court is opposed to releasing the tapes of oral arguments that it already makes.

As we all know, CAAF records all of its oral arguments on posts them on the Internet, almost always on the day of the argument or the following day. I'm unaware or any problems every caused by this practice and it's quite helpful for those of us who want to follow CAAF's docket but don't have time to make it down to E Street for every oral argument.

As reported by the Oyez Project, "The Supreme Court installed an audio recording system in 1955 and began recording its proceedings on the first Monday in October, the start of its annual Term. It has been recording almost all proceedings ever since." At the end of each Term, the Court gives tapes of all of its arguments to the National Archives. Those tapes are then converted into digital format and made publicly available. On some rare occasions, the Supreme Court releases same-day audio of its oral arguments. Supreme Court oral arguments are also accessible to the public through same-day transcripts posted on the Supremes' web site.

What about the Article III courts of appeals? At least six (the First Circuit, the Fifth Circuit, the Seventh Circuit, the Eighth Circuit, the Ninth Circuit, and the Federal Circuit), record their oral arguments and allow the public to access them through the Internet. The Second, Fourth, and Sixth Circuits record oral arguments and sell recordings of the arguments for $26. It appears that the Tenth Circuit also sells recordings of oral arguments for $26, though I could only find a reference to such sales in its fee schedules; I couldn't find its actual policy on selling recordings of oral arguments. The D.C. Circuit has a convoluted rule under which arguments are recorded, the counsel and the parties may listen to the oral argument tape, anyone can order a transcription of the oral argument for two years after issuance of the mandate, after which the tape is destroyed, and anyone can buy a copy of the oral argument tape once the case is completely concluded, including any remands, subsequent appeals, or other proceedings -- but presumably only if all proceedings in the case are completed before two years from when the mandate issues and the recording is destroyed. Who came up with that Rube Goldbergesque rule? The Third Circuit appears to have a general policy against recording arguments for public availability. Like the Coast Guard Court, the Eleventh Circuit records oral arguments but provides that those recordings are "for exclusive use of the court." 11th Cir. R. 34-4(g). "Neither the recording nor a transcript thereof will be made available to counsel or the parties." Id. But with the court's advance approval, parties may have a court reporter prepare an unofficial transcript of the oral argument. Id. But unlike the Coast Guard Court, which is in the Executive Branch, the 11th Circuit isn't covered by FOIA. So unlike the Coast Guard Court's oral argument tapes, the 11th Circuit's recordings aren't vulnerable to disclosure under FOIA.

While there is some variety in the Article III appellate courts' practices regarding public accessibility of oral arguments, as we have seen, the great majority of those courts make the arguments freely available on the Internet or generally available for $26. And the prestige of, say, the First or Fifth Circuits certainly hasn't diminished as a result of making its arguments freely available to all. (Perhaps the prestige of the D.C. Circuit should be diminished for adopting such a convoluted rule on public access to oral argument recordings.)

One key reason to record CCA oral arguments is that the appellants with the greatest interest in an appellate case's outcome -- those who remain confined -- can't attend the oral argument. Many non-confined appellants are extremely interested in their cases' progress but can't afford to travel to the Washington, D.C., area to attend an argument. Those whose cases are heard by CAAF can (and, I can attest, sometimes do) listen to the arguments over the Internet. But no similar opportunity is available to experience what happened at a CCA argument (again, except for the CGCCA litigant who submits a FOIA request for an argument tape). That seems like a gap that can and should be filled.

CAAF's budget

Pop quiz: what is CAAF's annual budget? Make a guess. Do you have a figure in mind?

The correct answer for Fiscal Year 2009, as provided by this document from OMB (scroll to pages 263 and 264), is $13,254,000. Salary and benefits account for more than half of the court's budget -- $6 million for salaries and $1 million for benefits. The report indicates that CAAF has the equivalent of 59 full-time employees. (This means that CAAF may actually have more than 59 employees. Say 2 of the court's employees work 20 hours a week. They would be counted as 1 full-time equivalent.)

It appears, however, that the $13,254,000 figure is actually somewhat artificially inflated. To put it mildly, I'm no accountant. If any of you are, please let me know whether I'm right or wrong about this. $1 million of CAAF's budget is for "Rental payments to GSA." I assume this represents some sort of artificial accounting trick to shift money from one federal department (DOD) to another federal agency (GSA), since the federal government owns CAAF's courthouse. If I'm right about that (and, again, I may very well not be), then this doesn't represent any actual cost to U.S. taxpayers. In that case, CAAF's actual cost to taxpayers is about $12.25 million.

For comparison purposes, the Supreme Court's annual budget is $69,776,849 plus another $18,447,000 for care of the Supreme Court's building and grounds. $55 million of that that total is for 480 full time equivalent employees' salary and benefits. The Court of Appeals for the Federal Circuit's annual budget is $32,357,000. But this figure may also be artificially inflated, since it includes $6 million in rent payments to GSA. I assume that the court's Lafayette Square quarters are owned by the federal government.

Martinez capital court-martial simulcasted at West Point

Until I read this article from yesterday's Lower Hudson Valley Journal News, I hadn't realized that the Martinez court-martial was being simulcasted (though not entirely successfully) by video at West Point to accommodate the victims' family members who can't attend the trial at Fort Bragg.

Hall of Fame panel

In 1999, Marine Corps Captain Richard Ashby was convicted of conspiracy to obstruct justice and obstruction of justice arising from the aftermath of the February 1998 aviation mishap at Cavalese, Italy that killed 20 civilians. In June 2007, NMCCA issued a 66-page unpublished opinion in the case, remanding it for either a DuBay hearing or a new post-trial review. United States v. Ashby, No. NMCCA 200000250 (N-M. Ct. Crim. App. June 27, 2007). Here's a link to that opinion. Unsurprisingly, the CA opted for the path of least resistance and went with a new post-trial review rather than holding a DuBay hearing concerning the original SJA's and Deputy SJA's involvement with the case's prosecution. The CA took a new action in March 2008 and the case returned to NMCCA. 355 days after its original decision, NMCCA affirmed the findings and sentence in an unpublished per curiam opinion. United States v. Ashby, No. NMCCA 200000250 (N-M. Ct. Crim. App. June 17, 2008) (per curiam). That opinion isn't on NMCCA's web site, so I've posted it here.

On 15 August 2008, CAAF docketed Capt Ashby's petition for grant of review. United States v. Ashby, __ M.J. ___, No. 08-0770/MC (C.A.A.F. Aug. 15, 2008). CAAF then extended the supp filing deadline to 29 September. United States v. Ashby, __ M.J. ___, No. 08-0770/MC (C.A.A.F. Sept. 16, 2008). And then things got interesting.

On Monday, CAAF granted the defense's motion to file a brief that doesn't comply with CAAF Rule 24(b), which is the page limitation rule. United States v. Ashby, __ M.J. ___, No. 08-0770/MC (C.A.A.F. Nov. 24, 2008). The order granting that motion included this footnote:

Chief Judge Andrew S. Effron, Judge James E. Baker, and Judge Margaret A. Ryan have recused themselves from this case and did not participate in this order. Senior Judge Robinson O. Everett, Senior Judge Walter T. Cox, III, and Senior Judge H.F. "Sparky" Gierke have been called upon by Acting Chief Judge Charles E. "Chip" Erdmann and consented to participate in this case pursuant to Article 142(e)(1)(A)(iii), Uniform Code of Military Justice, 10 U.S.C. § 942(e)(1)(A)(iii)(2000).

Id. at *.

It's easy to figure out why Judges Baker and Ryan would have recused themselves. In February 1998, at the time of the aircraft mishap, Judge Baker was serving as Legal Adviser to the National Security Council. It wouldn't be at all surprising for his official duties to encompass responding to an incident in which a U.S. military airplane caused the deaths of 20 Europeans in Italy. Judge Ryan served aide de camp to Marine Corps Commandant General Charles C. Krulak either at the time of the mishap or shortly thereafter. In that position, she almost certainly would have dealt with the disaster's aftermath as part of her official duties. What isn't apparent to me is why Chief Judge Effron would recuse himself. He became a CAAF judge in August 1996, a year-and-a-half before the mishap, so he wouldn't have dealt with the incident when he was on the Hill. The Ashby order doesn't state his reason for recusal.

With Chief Judge Effron and Judge Baker recused, Judge Erdmann was the senior remaining judge. Article 142(e) provided him with a means to restock the bench. Article 142(e) of the UCMJ provides, in relevant part, that the "chief judge of the court may call upon an individual who is a senior judge of the court under this subparagraph, with the consent of the senior judge, to perform judicial duties with the court . . . in any case in which a judge of the court recuses himself." Article 142(f) allows the CAAF Chief Judge to ask the Chief Justice of the United States to designate an Article III court of appeals or district court judge to sit in for a recused judge, but only if no CAAF senior judges are available.

So it appears that Judge Erdmann had carte blanche to pick three judges from among the roster of retired CAAF judges. And he certainly picked a Hall of Fame lineup. I've had the pleasure of arguing many times in front of all three (in addition to the pleasure of working for Senior Judge Gierke). If the Ashby case is granted and then orally argued, the two counsel who get to do it should savor the now-rare opportunity to appear before these distinguished jurists.

In addition to the three senior judges Judge Erdmann selected, there are three additional CAAF senior judges: Senior Judge William H. Darden, Senior Judge Eugene R. Sullivan, and Senior Judge Susan J. Crawford. As long as she remains in her current position as the military commission system's convening authority, it would seem unlikely that Senior Judge Crawford would be selected to sit with the court.

CGCCA creates glaring interservice split

In United States v. Blair, __ M.J. ___, No. 1278 (C.G. Ct. Crim. App. Nov. 13, 2008), the Coast Guard Court upheld a petty officer's Article 134 conviction for posting recruiting flyers for the KKK in a public airport bathroom. CGCCA noted that CAAF's recent opinion in United States v. Wilcox, 66 M.J. 442 (C.A.A.F. 2008), had to be considered, but nevertheless affirmed, in part because Wilcox was a contested case while Petty Officer Blair pleaded guilty.

Here's CGCCA's reasoning, which sets off a Cameron-Indoor-Stadium-decibel-level alarm bell for an interservice split:

Having weighed [Wilcox] as prescribed, we conclude that Appellant's conviction is justified despite First Amendment concerns. In making this determination on an issue not presented at trial, we believe we may look to evidence presented after findings. Besides the gravity inherent or readily inferable in the circumstances of Appellant's conduct brought out during the providence inquiry, considerable evidence of significant effects at the airport was presented before sentencing. The director of the airport, an Air Force retiree, testified that upon discovery of the first flyer, he assessed whether it constituted a threat and, after appropriate consultation, concluded it did not. Upon discovery of the second flyer the next week, security awareness and procedures were increased and an investigation ensued, placing a burden on airport resources until the source of the flyers was determined. He also testified that when he found out the source of the flyers was an active duty Coast Guard person, "it just made me sick." We think the potential effects, both stated and inherent, of Appellant's conduct on the Coast Guard's reputation outweigh Appellant's interest in his right to speak out while on government business at the airport.

Blair, No. 1278, slip op. at 8.

Got that? CGCCA expressly finds the plea provident based on the testimony of a sentencing witness, presumably presented during the government's case in aggravation.

Earlier this year, the Army Court set out its understanding of the law on this issue: "the government cannot use sentencing testimony to support the providence of a guilty plea." United States v. Webster, 65 M.J. 936, 942 n.4 (A. Ct. Crim. App.) (quoting United States v. Harding, 61 M.J. 526, 529-30 (A. Ct. Crim. App. 2005)), petition denied, 67 M.J. 9 (C.A.A.F. 2008). Last year, a different panel of the Army Court made the same observation. United States v. Stokes, 65 M.J. 651, 655 n.10 (A. Ct. Crim. App. 2007). Both Webster and Stokes relied on ACCA's 2005 decision in Harding, which discussed the issue at some length. There, the Army Court wrote:

According to established precedent, the dictates of Article 45, UCMJ, R.C.M. 910, and Care referenced in Barton all require that a guilty plea must be supported by facts admitted by the accused during the providence inquiry. If the military judge fails to elicit, through statements made by the accused during the providence inquiry or a stipulation of fact, a sufficient factual basis to objectively support the plea, no evidence from another source can fill the void left in the factual predicate.

Harding, 61 M.J. at 529. (Harding was affirmed on other grounds in a summary disposition at 64 M.J. 179 (C.A.A.F. 2006).)

ACCA persuasively explained why neither United States v. Barton, 60 M.J. 62 (C.A.A.F. 2004), nor United States v. Jordan, 57 M.J. 236 (C.A.A.F. 2002), led to a different result.

In contrast to ACCA's reasoned discussion of why sentencing evidence can't be used to support the providence of a guilty plea, CGCCA's contrary proposition in Blair was based on -- nothing. CGCCA simply said, "we believe we may look to evidence presented after findings," citing no source of authority for that belief.

Blair screams out for CAAF review to resolve this stark split between the Coast Guard Court and ACCA. I hope Petty Officer Blair's counsel give CAAF that opportunity.

The Year of Jurisdiction continues -- CGCCA edition

The Year of Jurisdiction will extend into 2009, when the Supremes will decide the Denedo case. But on the 2008 side of New Year's Day, we now have another published jurisdiction case: United States v. Coker, __ M.J. ___, No. 1280 (C.G. Ct. Crim. App. Nov. 21, 2008). The particular jurisdictional issue in Coker was whether the military justice system had subject matter jurisdiction over Coker's offense.

The accused who gives his name to United States v. Coker is a Coast Guard Lt(JG) reservist. He was on an extended active duty contract that ended on 3 August 2006. On 3 August 2006, he received a DD-214 that indicated his separation date was 3 August 2006. He then committed some serious criminal misconduct on 4 August 2006. Question: did the military have jurisdiction over the offense? CGCCA's answer: yes.

CGCCA rejected Judge Judge's reasoning that the military had jurisdiction over LT(JG) Coker's offense because the individual who delivered the DD-214 to Coker shouldn't have done so because Coker hadn't properly accomplished his checkout procedures. But, CGCCA ruled, the DD 214 included the wrong date. LT(JG) Coker was entitled to four days of travel, the court concluded, so the terminal date on the DD 214 should have been 7 August 2006 instead of the 3rd. Having raised the issue of whether this makes the DD 214 void, CGCCA pulls a bait-and-switch, dropping that issue and proceeding to find jurisdiction due to the lack of final accounting of pay. Because LT(JG) Coker's final accounting of pay wasn't calculated until 8 August 2006, CGCCA found subject matter jurisdiction by relying on CAAF's holding in United States v. Hart, 66 M.J. 273 (C.A.A.F. 2008). Of course, as CGCCA acknowledges, Hart was a personal jurisdiction case, not a subject matter jurisdiction case. Presumably LT(JG) Coker's counsel will ask CAAF to review CGCCA's opinion to determine whether that distinction matters.

Judicial selection

I understand that CAPT Chris Reismeier, JAGC, USN, has been selected to serve on the Navy-Marine Corps Court. BZ to the Navy JAG Corps for such a fine selection. CAPT Reismeier is one of our nation's premier military justice experts, a former trial judge, and a former Code 46 counsel.

NYT article on military appellate system

Here's a link to a New York Times article on efforts to legislatively expand SCOTUS jurisdiction to military justice cases where CAAF denies a petition for grant of review.

One of the most interesting portions of the article is the juxtaposition of former CAAF Chief Judge Cox speaking about the potential for military justice reform -- and a second Cox Commission -- with Bob Reed (the Pentagon's military justice honcho) offering a rather dismissive opinion of would-be military justice reformers:

Mr. Cox and other supporters hope Congress will consider other modifications to the system, like changing the appeals process, examining whether lawyers in the system are adequately trained and studying whether military judges should have more continuity in their jurisdiction. He hopes to convene a second commission that would look at some of those issues in the next few months.

For his part, Mr. Reed said many of the criticisms of the military justice systems themselves were dated.

"It's the same old people with the same old arguments and the same propositions," he said. "If they do have some new ideas that they think could be beneficial, I hope they forward them to the department."

Some quick observations about Denedo

I'll be thinking about Denedo's implications over the next few days. If I have any thoughts that cross the semi-profound or mildly interesting threshold, I'll post them. But for now, here are some quick observations.

The Supremes granted cert on two cases on Tuesday -- Denedo and Nken v. Mukasey, 08-681. Interestingly, both arise from deportation issues. In Denedo, the SG represents the petitioner while in Nken, the SG represents the respondent. As reported SCOTUSblog (a.k.a., the Greatest Blog on Earth), the Court ordered expedited briefing in Nken and scheduled it for oral argument on 21 January. The Court didn't do so with Denedo, but this still suggests that Denedo will be argued promtply. So let's look at the briefing schedule.

Under SCOTUS Rule 25.1, the SG has 45 days to file his opening brief. That means his deadline is Friday, 9 January 2009. Rule 25.2 then gives Denedo's counsel 30 days to file their brief. 30 days from 9 January 2009 would be Sunday, 8 February. So if the SG files on his due date, the respondent's brief would be due on Monday, 9 February. Rule 25.3 then gives the SG a right to file a reply brief within 30 days or one week before the date of oral argument, whichever comes first. If everyone files on their due dates, that would result in an 11 March 2009 reply brief deadline, though I'll be surprised if SCOTUS doesn't truncate the reply brief period by scheduling oral argument sooner than 37 days from the filing of Denedo's brief.

Right now SCOTUS arguments are scheduled through 21 January. The Court will hear arguments on six days within the 30-day post-Denedo respondent-filing date of 9 February 2009: 23, 24, 25 February and 2, 3, 4 March. The Court doesn't have to hear oral argument on one of those days. It is also schedule to hear arguments on 23, 24, 25, 30, and 31 March, and 1, 20, 21, 22, 27, 28, and 29 April. Of course, as soon as we hear the argument has been scheduled, we'll let you know.

Here are a few other observations to put the Denedo grant into a larger context. The last time the Supreme Court granted cert to provide plenary review of a CAAF decision (as opposed to GVRing) was on 2 November 1998. Clinton v. Goldsmith, 525 U.S. 961 (1998). The last three cert grants to provide plenary review of CAAF decisions (as opposed to GVRing) all came on the SG's petitions. Denedo; Clinton v. Goldsmith; United States v. Scheffer, 520 U.S. 1227 (1997). I believe those are the only three cert petitions the SG has ever filed seeking review of a CAAF decision. (That in and of itself is pretty interesting considering that DOD pushed for the Military Justice Act of 1983 in large part to provide the SG a way of seeking review of CMA decisions. But by historical accident, the creation of that power came shortly after the wane of the Fletcher Court and the rise of far more respected Everett Court.) The last time the Supremes granted a servicemember's petition to provide plenary review of a CAAF decision (as opposed to GVRing) was on 8 November 1996. Edmond v. United States, 519 U.S. 977 (1996).

How surprising was it that the Supremes granted cert? Not very. While I erroneously predicted a denial due to jurisdictional and ripeness problems, I also noted that it's never wise to bet against the SG. Here's why. The indispensable Supreme Court Practice treatise tells us that SCOTUS "granted plenary review on 50 percent -- and summarily granted certiorari, vacated, and remanded on another 20 percent -- of the certiorari petitions filed by the Solicitor General between 1998 and 2005, in contrast to the 3 to 4 percent rate at which the Court grants paid petitions filed by other parties." Gressman, et al., Supreme Court Practice 237 (9th ed. 2007).

New (relatively) CGCCA published opinion

One of the things I've fallen behind on is the posting and description of CCA opinions. Here's a link to a published decision that the Coast Guard Court released last week. United States v. Coker, __ M.J. ___, No. 1280 (C.G. Ct. Crim. App. Nov. 21, 2008). Sometime between now and Monday, I plan to post a synopsis of it unless someone beats me to it.

Timing -- and Happy Thanksgiving!

Is is fair to say that this has been the biggest week for military justice news so far this millennium? Wouldn't you know that this week would come at a time when my docket is particularly heavy. So I've fallen behind in my blog posting. But I assume that the next few days will be relatively military justice news free, giving us a chance to catch up.

I'm hoping to make a couple of quick posts this morning, then I'll be spending the rest of the day with my family (and rooting for the Terps at 1900, of course). But over the next few days, I hope to provide some analysis of recent developments, including a thought piece inspired by a posting by Frank the Cat, who seems to have stumbled across our little gab-fest.

Happy Thanksgiving, everyone!

BREAKING NEWS: U.S. District Court grants stay of execution to Ronald Gray [UPDATED]

Here's a link to Senior Judge Rogers' order staying Gray's execution to allow him to file a habeas petition. Gray v. Gray, No. 08-3289-RDR (D. Kan. Nov. 26, 2008) (order). Judge Rogers ordered that the "stay of execution shall remain in place until further order of the court, and the court requests counsel for the petitioner to transmit this order to appropriate military authorities to notify them of the stay." Judge Rogers also granted Gray's request for appointment of counsel. The United States has moved to reconsider, seeking a withdrawal of the stay because no habeas petition has yet been filed and no specific grounds for habeas relief have yet been identified. The United States also argues that the stay request is dilatory because Gray has known since August that his death sentence was approved and he didn't seek a stay sooner. The United States argues that it "has been prejudiced by Petitioner’s unreasonable delay in filing this current motion." This argument seems hypocritical. Gray's death sentence became final and the window for presidential approval opened when the Supremes denied his motion to reconsider their denial of his cert petition on May 14, 2001. Gray v. United States, 532 U.S. 1035 (2001). The President didn't approve the death sentence until more than 7 YEARS AND 3 MONTHS later. By comparison, Gray filed his request for stay of execution less than four months after the President approved his death sentence. Having waited more than seven years to approve the death sentence, how is the United States harmed by less than four months of delay before a request to stay was filed?

The United States concludes this portion of its brief by arguing that "there is a strong public interest in the timely implementation of criminal sentences which is undermined by the continuation of an unsupported and unsupportable stay." Where was that concern for timely implementation of criminal sentences over the preceding seven years? It is difficult to take this argument seriously when the United States itself has shown no concern for timely implementation of the sentence.

I've posted the United States' complete motion to reconsider the stay of execution and appointment of counsel here.

NMCCA schedules oral argument in Article 120 government appeal [UPDATED]

The Navy-Marine Corps Court will hear oral argument on an Article 62 appeal challenging a military judge's ruling striking down the new Article 120 on 3 December 2008. Here's the order scheduling the oral argument and giving guidance to the counsel. United States v. Crotchett, No. NMCCA 200800770 (N-M. Ct. Crim. App. Nov. 19, 2008) (order). The court will hear the case en banc. (Thanks, Anon.)

Martinez capital court-martial update

The prosecution concluded its case in rebuttal on Tuesday in the Martinez capital court-martial being tried at Fort Bragg, as reported by the Lower Hudson Valley Journal News here. As reported by the Fayetteville Observer here, proceedings in the case have adjourned until Monday, when the defense will present its case in surrebuttal. The Journal News reports that closing arguments are expected on Tuesday. If the case goes past next week, which seems likely if the members return the unanimous finding of guilty to premeditated murder that would be necessary for the sentencing case to be capital, then court-martial proceedings will break for the week of 8 December because that week the military judge in the case, Army Colonel Stephen Henley, will be presiding over the military commission case of United States v. Khalid Sheikh Mohammed, et al., at Guantanamo Bay.

Who gets the Golden CAAF?

All eyes now turn to USS DWIGHT D. EISENHOWER. Kabul Klipper, who gets the Golden CAAF? I vote for sending it to Col Puleo and letting him decide.

Pardon me [UPDATED]

The new batch of presidential pardons announced on Monday included one granting a pardon for an Air Force GCM conviction. Here's a link to the most comprehensive report I could find on the new pardons, which aren't yet on DOJ's pardon web page.

The No Man called my attention to an interesting phenomenon -- the military accounts for a high percentage of pardons that President Bush has issued. Before Monday's batch of 14 pardons, President Bush had issued 157 pardons. 10 of them were for court-martial convictions. With the 14 new pardons, 11 of 171 (or 6.43 percent) are for court-martial convictions.

Looking at pardons by the state in which the convicting federal court is located (combining districts for those states with more than one), only two states' totals exceeded the military's (Texas, 18; South Carolina, 12), while two states (Florida; Georgia) equaled the military's 11.

(One individual pardoned by President Bush in 2006 -- William Grover Frye -- was actually convicted by both an Army GCM and the United States District Court of the Southern District of Indiana.)

Eight of the eleven pardons for court-martial convictions arose from GCMs and three arose from specials. Five were for Air Force convictions, four for Army convictions, two for Navy convictions, and one for a Coast Guard conviction. President Bush has not pardoned any Marines for court-martial convictions.

BREAKING NEWS: Gray files for stay in U.S. District Court for the District of Kansas [UPDATED]

Ronald Gray has filed a motion for appointment of counsel and stay of execution in the U.S. District Court for the District of Kansas. Because the Commandant of the USDB is Colonel Gray, the name of the case is Gray v. Gray. The case number is 08-3289-RDR. I've posted the motion on CAAFlog.com. Here's a link.

Golden CAAF Goes to the Solicitor General

Cert granted today in Denedo. See SCOTUSBlog coverage here and the orders list here. Our prior coverage is . . . well everywhere. But, some samplings are here, here, and here.

H/T to Anon 2:45

NMCCA's opinion in Hickman

Here's a link to NMCCA's unpublished opinion in United States v. Hickman, No. NMCCA 200800529 (N-M. Ct. Crim. App. Sept. 18, 2008) (per curiam), which is now pending before CAAF. Even though CAAF granted review only last Thursday, it has scheduled the case for oral argument on 15 December.

Defense rests in Martinez capital court-martial

As reported by the Fayetteville Observer here, the defense rested today in the capital court-martial of United States v. Martinez. Staff Sergeant Martinex didn't take the stand.

This week in military justice

I hope to make "This week in military justice" a weekly CAAFlog feature every Sunday. But to do that, we'll need your help. If you're aware of a significant military justice event on the upcoming schedule -- such as a CCA oral argument or an important court-martial -- please drop us a line and let us know. As always, you can reach us at caaflog@caaflog.com. (And, as always, we'll assume that any input is not-for-attribution unless you specifically advise us otherwise.)

This week in military justice will include at least two items of significance.

First, on Tuesday, assuming that the case of United States v. Denedo made the Supreme Court's discuss list (and I do assume it did), the justices will consider the SG's cert petition at their Tuesday conference. We expect results of that conference to be announced either Tuesday afternoon or Wednesday. We'll be following developments and will report the outcome.

At the court-martial level, on Monday the defense is expected to rest its case-in-chief in the capital court-martial of United States v. Martinez. The government is expected to begin its case in rebuttal then.

NYT article about Army domestic abuse case

Today's New York Times includes an article (here's a link) suggesting an inadequate response by the Army to a soldier battering his wife at San Angeleno, Texas. The article ran on the front page of the National section. It could produce further reverberations.

US-Iraq SOFA Vote on Wednesday

Looks like US servicemembers will know before the Detroit Lions play whether they'll be packing things up this winter or have a SOFA to rely on after January 1, 2009. AP (via the WSJ, here) reports that Iraqi lawmakers will vote on the current draft of the US-Iraq SOFA on Wednesday, November 26. See our prior coverage, here, and a signed English language version of the proposed SOFA, here.

Today's Martinez court-martial update

Here's a link to today's Fayetteville Observer report on the Martinez capital court-martial at Fort Bragg. The article indicates that the defense is expected to rest on Monday, with the government's case in rebuttal beginning then.

Military justice intersects with military commissions

COL Stephen Henley, the chief judge of the Army Trial Judiciary, is presiding over the capital Martinez court-martial at Fort Bragg. He was also recently detailed to preside over the trial of Khalid Sheikh Mohammed and four co-conspirators alleged to have conspired to attack the World Trade Center and the Pentagon on 9-11, among other offenses. According to this WRAL report, Judge Henley will recess the ongoing Martinez capital court-martial for the week of 8 December in order to preside over hearings in the Mohammed, et al. case at Guantanamo Bay that week.

CAAF grants review

I'm back in the blogging saddle in time to report that yesterday, CAAF granted review of this issue in an Article 62 appeal case: "WHETHER THE LOWER COURT ERRED IN FINDING THAT THE APPELLANT WAS NOT ENTITLED TO ARTICLE 31(b) WARNINGS BEFORE HE WAS QUESTIONED ABOUT A CRIME OF WHICH HE WAS SUSPECTED OF COMMITTING." United States v. Hickman, __ M.J. ___, No. 09-6001/MC (C.A.A.F. Nov. 20, 2008).

I can't find a copy of NMCCA's opinion in the case anywhere online, including in NKO. If anyone has a copy, would you please throw it over our transom? (As always, you can reach us by e-mail at caaflog@caaflog.com.)

Army Sets Execution Date for Gray

The Army Times is reporting here, and others reporting elsewhere, that the Army set December 10 as the scheduled execution date for Pvt. Gray. The execution is apparently being scheduled for the US BOP chamber at Terre Haute, IN, vice the USDB chamber.

As CAAFlog noted for the Army Times, Gray still has a federal habeas corpus petition to file. I wonder if the standard of review dispute featured in the U.S. ex rel. New v. Gates Solicitor General's brief, highlighting how wrong the 10th Cir standard was, had anything to do with the move? See CAAFlog coverage here. Though, I must confess, I have no idea what the 7th Cir. military habeas standard is and no 7th Cir. case is cited in SG's brief. Is Gray still in Kansas?

Daily Journal Oddities

I was perusing the Daily Journal and could not help but chuckle when I saw this entry:

No. 09-0075/AF.  U.S. v. Johnny L. FRANCISCO.  CCA 36773. 

CAAFlog, or other AF lurkers, must confirm for me that Johnny Francisco is a real person and the ship/boat gremlins from the MCM haven't invaded the CAAF Daily Journal. When I read it I imagined a . . . Ok, I won't say who I imagined saying that name or under what circumstances he/she was saying it. Let's just say it reminded me of a smoky black and white private detective movie.

Second, oddity. I have never seen a motion to summarily dismiss oral argument . . . until today. Thank you Mr. Von Bergen. There's a story behind that one, I am sure.

New CGCCA published opinion

Last week, CGCCA released a published opinion that still isn't on its web site. United States v. Blair, __ M.J. ___, No. 1278 (C.G. Ct. Crim. App. Nov. 13, 2008). I've posted it here.

NMCCA creates online digest of its opinions

I'm under the gun this week, so I have almost no time to blog. Fortunately, the No Man has been more than taking up my slack.

The NMCCA web site now includes a subject-matter digest of the court's opinions, available here.

Iraqi SOFA Text

Here is a link to a copy of the Iraqi SOFA that I believe is under consideration by the Iraqi Parliament today. FYI, consideration of the agreement was interrupted by what the AP called an aggressive approach to a parliamentarian, as he read the agreement, by a Sadrist lawmaker.

Resolving a debate I had with . . . myself, here and here, contractor employees (and contractors) covered by the agreement are subject to Iraqi criminal and civil jurisdiction. See Art. 12, ¶ 2. Other provisions of the agreement exempt contractors and their employees from various taxes, licensing, and regulatory provisions. See e.g. Art. 15.

However, the question that arises when reading the definition of contractors is the potential hole in the agreement. The definition of contractors covered by the agreement may exclude contractors and their employees not contracted "with or for" the US Armed Forces. See Art. 2, ¶ 5. While this class, if it exists, would primarily be non-UCMJ covered contractors, it is an interesting question. As my former NLSO colleague pointed out, the State Department has already gone on record with the WSJ, here, as saying that "[the agreement] also applies to its contractors."

This potential hole brings to mind this question. If there is a class of non-covered US contractors, which is unclear from the text, does CPA Order No. 17 immunity (civil and criminal) still apply to them? In a quick review, I did not find an explicit renunciation of CPA Orders, generally, or CPAO 17, specifically.

As far as members of the armed forces, the immunity provisions are as expected. See Art. 12. This draft talks about Iraqi jurisdiction for off base, off duty, "grave premeditated felonies" to be enumerated later by a joint committee. See Art. 12, ¶¶ 1, 8. The US is given the initial task of certifying whether a member was on or off duty. However, Iraqi authorities may arrest and detain service members provided they turn them over to US authorities in 24 hours. See Art. 12, ¶ 5. In cases of those grave felonies, service members will be held for trial in a US facility. See id.

If this is in fact the final agreement, it is relatively protective of US court-martial jurisdiction. Note also that the agreement is subject to review every 6 months. Considering the level of debate in Iraq over this provision, I'd imagine we'll hear about an Iraqi change proposal on July 1, 2009.

Wuterich Defamation Case

Interesting coverage today, here, of the defamation case brought against Rep. John Murtha for statements he made about Staff Sgt. Frank Wuterich. Oral arguments were held today in the D.C. Circuit regarding Rep. Murtha's (DOJ's) appeal of a U.S. District Court order requiring him to respond to discovery. U.S. District Judge Rosemary M. Collyer ordered Murtha to produce documents and testify to make his claim for congressional immunity related to the statements, see report here.

Two days, two Wuterich appeals, see CAAF opinion coverage here, Sgt. Wuterich is his own legal docket.

Fort Bragg Capital Court Martial Update

Testimony in the Martinez court martial resumed on Monday. Here are reports on Friday's and Monday's testimony. The defense stated yesterday they anticipate testimony won't end until next week. According to news reports at least one member and the military judge were tiring of what the military judge referred to as “repetitive testimony on inconsequential points.” Not exactly the characterization of your case you hope for from the military judge.

The Year of Jurisdiction continued

We previously branded 2008 as "The Year of Jurisdiction" for military appellate courts. Perhaps the biggest jurisdictional development of the year will occur on 25 November, when the Supremes consider the SG's cert petition in Denedo. But Monday saw another jurisdictional development with CAAF's opinion in Wuterich, another 3-2 opinion expansively construing military appellate courts' jurisdiction. And there is at least one major military appellate jurisdictional case still to be decided. United States v. Rodriguez, No. 07-0900/MC, which was orally argued on 23 September, will decide whether CAAF has jurisdiction to hear a case in which the petition for grant of review was filed after Article 67's 60-day timeline had run.

This week at CAAF

On Monday, CAAF heard two oral arguments, both in Air Force cases. United States v. Goodin, No. 08-0355/AF; United States v. Von Bergen, No. 03-0629/AF. Audio of those oral arguments is already up on CAAF's web site. Goodin presents this hilariously misleading granted issue: "WHETHER THE MILITARY JUDGE ERRED BY ALLOWING EVIDENCE OF LEGAL PORNOGRAPHY AND SEXUAL ACTS WITH HIS WIFE." The granted issue in Von Bergen is "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." CAAF also requested supplemental briefing "addressing the impact of United States v. Medina, [66 M.J. 21 (C.A.A.F. 2008),] if any, upon the granted issue."

On Tuesday, CAAF will hear a pair of Navy-Marine Corps cases. There are two granted issues in United States v. Thompson, No. 08-0334/MC: "WHETHER THE LOWER COURT ERRED IN HOLDING THAT, EVEN IF THE MILITARY JUDGE ERRED IN DENYING THE DEFENSE MOTION TO SUPPRESS APPELLANT'S CONFESSION TO INVESTIGATOR AR, THE ERROR WAS HARMLESS BEYOND A REASONABLE DOUBT," and "WHETHER THE LOWER COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT BY SUBSTITUTING ITS FINDING OF GUILT TO RECKLESS ENDANGERMENT UNDER ARTICLE 134, UCMJ, FOR THE COURT-MARTIAL'S FINDING OF GUILT AS TO THE OFFENSE OF KIDNAPPING AS PLED UNDER CHARGE V, SPECIFICATION 2." The granted issue in United States v. Kuemmerle, No. 08-0448/NA, is: "WHETHER THE COURT-MARTIAL HAD JURISDICTION OVER THE OFFENSE OF DISTRIBUTING AN IMAGE OF CHILD PORNOGRAPHY WHERE APPELLANT POSTED THE IMAGE ON THE INTERNET PRIOR TO ENTERING ACTIVE DUTY AND HE TOOK NO FURTHER STEPS TO DISTRIBUTE THE IMAGE AFTER IT WAS INITIALLY POSTED."

After Tuesday, CAAF's next oral argument date is 2 December.

Two more oral arguments scheduled

On Sunday, we took a look ahead at CAAF's oral argument schedule here. Though not yet reflected on the CAAF web site, on Maonday CAAF scheduled at least two additional oral arguments: Smead and Stephens, both to be heard on 12 January. In Stevens, if counsel take the maximum allotted time to submit each of their briefs, the reply brief will be filed just two working days before the argument. Can one of our Army Lurkers tell us if Miller was scheduled as well?

CAAF releases Wuterich opinion

CAAF has released its opinion in United States v. Wuterich. It's available here. United States v. Wuterich, __ M.J. ___, No. 08-6006/MC (C.A.A.F. Nov. 17, 2008).

CAAF vacated NMCCA's opinion, holding that NMCCA erred by holding the SSgt Wuterich had no standing to participate in the appeal. CAAF proceeded to rule directly on the substantive issues before the court. It held that an order quashing a subpoena is an appealable order under Article 62, though it held that the liberal construction mandate of the federal civilian government appeals statute doesn't apply to Article 62 appeals.

The court proceeded to hold that the military judge abused his discretion by quashing the government's subpoena to CBS News for outtakes of SSgt Wuterich's interview with 60 Minutes correspondent Scott Pelley without first reviewing the outtakes in camera.

CAAF reserved judgment on whether a newsgatherer privilege applies in the military justice system, but held that such a privilege wouldn't preclude an in camera review of the outtakes.

The court remanded the case for the trial judge to order production of the outtakes and to conduct such an in camera review.

Chief Judge Effron wrote for the majority, joined by Judges Baker and Stucky. Judge Ryan wrote a dissent in which Judge Erdmann joined. The dissenters concluded that Article 62 did not provide a CCA with jurisdiction to hear an appeal of an order quashing a subpoena because such an order does not exclude evidence.

[DISCLAIMER: I am one of SSgt Wuterich's appellate defense counsel.]

Docket doldrums

Looking at CAAF's current hearings schedule and its granted issues, it appears that CAAF is at risk of running out of cases to hear.

CAAF has 37 scheduled argument dates this term. Ten have already occurred during which 15 cases have been heard. (Five of those cases have already been decided, two by summary disposition.)

Another eight oral argument dates have scheduled cases. On those eight dates, CAAF will hear another 14 cases. So of the court's 37 oral argument dates, 18 are scheduled and 19 remain unscheduled.

At the moment, if my review of CAAF's web site is correct, there are only seven granted cases that haven't yet been scheduled for oral argument (Miller/AR, Smead/MC, Stephens/AF, Riddle/AR, Thomas/NA, Ranney/AF, and Gardinier/AR. Does anyone know of any others?)

The next unscheduled oral argument dates are Monday, 12 January and Tuesday, 13 January. But by that point, the briefing schedule will have run for only three of the seven granted cases. And in the third of those cases -- Stephens -- the briefing schedule doesn't run until Thursday, 8 January.

So it seems that the 12 and 13 January oral argument dates will be filled with either two or three cases. That leaves 17 open oral argument dates for which there are now only either four or five granted cases available to fill them. Unless CAAF grants review of at least two additional cases soon, it appears that the scheduled oral argument dates of 25 and 26 February will have to be canceled for lack of business.

It also appears that this term is unlikely to exceed last term's total of 65 opinions of the court.

Supremes docket military pro se cert petition

This past week, the Supremes docketed a pro se IFP cert petition that had actually been filed more than a month earlier. Lucero v. United States, No. 08-7196. CAAF affirmed in a summary disposition. United States v. Lucero, 67 M.J. 8 (C.A.A.F. 2008). Lucero was convicted of premeditated murder at a contested court-martial and sentenced to LWOP. Here's a link to ACCA's unpublished opinion in the case. United States v. Lucero, No. Army 20020869 (A. Ct. Crim. App. Sep. 17, 2007).

Ratio of guilty pleas to contested courts-martial

Here's an interesting statistic from the new issue of the Army Lawyer: "In Current Year 2006 [I assume that should read Calendar Year 2006], the ratio of the 1358 [Army] courts-martial was approximately 75% guilty pleas and 25% contested." Lieutenant Colonel Edye U. Moran, The Guilty Plea -- Traps for New Counsel, Army Law., Nov. 2008, at 61, 62.

The article also contained a piece of advice that clanged to my ear: "Trial and defense counsel both have a responsibility to assist the court by listening to the military judge's question, taking notes, and asking the judge to follow-up on particular questions that bear further inquiry." Id. at 65. Judge Moran adds, "Listening and asking the proper follow-up questions can make the difference during appellate review of the case." Id. at 66. Exactly. Why on earth would the defense want to propose some additional question that could kill a potential appellate issue? There's a huge difference between preparing the accused to make it through the Care inquiry and, once the military judge has decided to accept the plea, calling the military judge's attention to a time bomb that he or she has inadvertently put into the record. There should almost never be a time when a defense counsel answers with anything other than, "No, Your Honor," when a military judge asks both parties if they have any additional questions at the end of the providence inquiry. (Probably the only rare exception should be where the defense counsel can propose a question that would elicit extenuating information.)

I know of nothing that places on the defense "a responsibility to assist the court" by calling the military judge's attention to a flaw in the providence inquiry that could result in appellate relief and Judge Moran cites no such source of authority. While I'm sure military judges would like the defense counsel to help bullet-proof the providence inquiry for appellate purpose, that seems to reflect some confusion about the defense counsel's role.

November issue of Army Lawyer online

The November issue of the Army Lawyer is online here. It's a military justice oriented issue, including a primer on petitions for extraordinary relief and Article 62 appeals here and an article on searches and seizures of government computers and e-mail accounts here, and an article on sexual abuse reporting and prevention available here. Captain Patrick B. Grant, Extraordinary Relief: A Primer for Trial Practitioners, Army Law., Nov. 2008, at 30; Major Lawrence A. Edell, A Reasonable Expectation of Privacy: Is a Government E-mail Account the Equivalent of a Wall Locker in a Barracks Room?, Army Law, Nov. 2008, at 1; Major Katherine A. Frul, The Sexual Assault Prevention and Response (SAPR) Program--in Need of More Prevention, Army Law, Nov. 2008, at 41. (The last of these articles begins with the kind of "notional scenario" for which the Kabul Klippper loves to mock the Army Lawyer.)

The issue also has an article on Care inquiries that will be the subject of a separate post.

Daily Martinez update

Here's a link to the Fayetteville Observer's report on yesterday's proceedings in the Martinez capital court-martial. I'll have a few more posts today with information that I didn't have time to post last night.

More Delays (and a Gag Order) in Army Capital Case

The general court-martial of Staff Sgt. Alberto Martinez ended early today as insufficient witnesses were available to testify. See AP report, via DailyAdvance.com in NC, here.

Update at 2030: According to an AP report on the above site, the military judge in the Martinez court-martial issued a gag order for the trial counsel. . . for statements in court. Here is what the AP reported:

A military judge on Thursday banned a top-ranked prosecutor from saying anything during a New York soldier's murder trial other than to question witnesses on the stand, saying the attorney had been unprofessional. . . . Martinez's defense attorney Marc Cipriano told the judge that while the defense was questioning a witness, Huestis laughed and made a comment to fellow prosecutor Maj. John Benson about Martinez's access to Claymore mines. . . . Benson said under oath that he didn't clearly hear Huestis but that he was suggesting a question to ask on cross-examination. Benson also said he didn't hear Huestis laugh and was concentrated on taking notes. The judge told Huestis that if he needed to communicate with the other two prosecutors during court, he could write notes. Even then, you will be selective," the judge warned Huestis. "This is your last chance. Do you understand?"

Yikes, not exactly career enhancing. This is at least the third warning for the TC's uncontrolled laughter, see prior post here.

Nothing to do this Friday?

For those with endless time on their hands this Friday, there is an interesting military justice event at the National Press Club in D.C. Session two tomorrow at the 7th annual Military Reporters & Editors conference will discuss "issues relating to media access to trials at Guantanamo Bay, Article 32 hearings, and courts-martial." See the conference agenda and registration here. A bit pricey for a one hour session, maybe you can haggle your way into the session for free?

The Reporters' Committee for Freedom of the Press, Military Dockets white paper, covered on CAAFlog here, is surely to be a topic du jour. OK, maybe they'll want to talk about Gitmo trial access too. Informed sources tell us that television star Bob Reed from DoD OGC, CAAFlog contributor Gene Fidell, and a luminary attorney from Williams & Connolly (and Navy Code 14) are scheduled to speak.

CAAF reverses AFCCA on member challenge issue

CAAF's docket continues to rocket. Today, without even waiting to order briefing on the merits or hear oral argument, CAAF reversed an unpublished AFCCA decision in a member challenge case. United States v. Martinez, __ M.J. ___, No. 08-0375 (C.A.A.F. Nov. 13, 2008) (per curiam).

Martinez, which we previously discussed here, was a guilty plea members sentencing case for methamphetamine use. One of the members stated during voir dire that "my guideline has always been that there's no room in my Air Force for people that abuse drugs." When the defense counsel later asked the member whether no punishment was "an option for you to consider in a case such as this," the member answered, "No." Upon further questioning, the member indicated that while he could consider not adjudging a bad-conduct discharge, he believed that there had to be some punishment. The defense challenged the member for cause and the military judge denied the challenge.

AFCCA affirmed, holding that the member's "comments demonstrate a level of professional commitment to the unique requirements of military service and the importance of good order and discipline in the military. These qualities alone neither create a perception of unlawful command influence nor serve as a basis for an assertion of implied bias." United States v. Martinez, No. ACM S31080, slip op. at 10 (A.F. Ct. Crim. App. Jan. 2, 2008) (per curiam).

The defense submitted a supp to CAAF challenging the military judge's and AFCCA's rulings. JAJG responded by submitting a 10-day letter. CAAF then ordered JAJG to "submit an answer to the supplement within 15 days of the date of this order." United States v. Martinez, 67 M.J. 13 (C.A.A.F. 2008).

Today, CAAF granted the petition and proceeded to reverse AFCCA and the trial judge, holding that the member was disqualified on implied bias grounds. (Because it found implied bias, CAAF reserved judgment on whether the member was also disqualified due to actual bias.)

CAAF reverses the Coast Guard Court

CAAF on Wednesday issued a brief per curiam opinion reversing the Coast Guard Court's divided published opinion in United States v. Yanger, 66 M.J. 534 (C.G. Ct. Crim. App. 2008). United States v. Yanger, __ M.J. ___, No. 08-5006/CG (C.A.A.F. Nov. 12, 2008) (per curiam). On certification by the Judge Advocate General of the Coast Guard, CAAF held that the military judge's providence inquiry adequately addressed and negated a potential self-defense defense. CAAF reversed CGCCA's ruling, which had set aside the guilty plea to involuntary manslaughter.

Riddle me this

We discussed CAAF's grant of review in Riddle here. See United States v. Riddle, __ M.J. ___, No. 08-0739/AR (C.A.A.F. Nov. 6, 2008). Here's a link to ACCA's unpublished opinion in the case. United States v. Riddle, No. ARMY 20070756 (A. Ct. Crim. App. May 28, 2008).

BREAKING NEWS: SG files reply in Denedo

Here's a link to the SG's reply brief in United States v. Denedo, No. 08-267.

Another thought about Denedo

I continue to be amused by the irony of those who would have the Supreme Court exceed its statutory cert jurisdiction to slap CAAF's hand for reaching into a forbidden jurisdictional cookie jar in Denedo. (NOTE: I'm not implying that all those who support cert in Denedo are relying on such arguments; I understand that one can argue that granting cert in Denedo would be permitted under 28 U.S.C. § 1259, though I don't buy that argument myself. But some commentators have attempted to concoct non-statutory (and non-existent) bases for the Supremes to review Denedo.)

The Supreme Court's jurisdiction to review CAAF cases is entirely a creature of statute. The statute that created that authority is the Military Justice Act of 1983, codified for current purposes at 28 U.S.C. § 1259. Unfortunately for the government in Denedo, § 1259 is highly restrictive in its jurisdictional grant. Usually these restrictions favor the government and disadvantage the accused. But in Denedo, § 1259's jurisdictional gerrymandering happens to hurt the government.

Let's compare the statute that authorizes SCOTUS review of the Article III courts of appeals' decisions with that authorizing SCOTUS review of CAAF decisions. 28 U.S.C. § 1254 provides, in relevant part: "Cases in the courts of appeals may be reviewed by the Supreme Court by the following methods: (1) By writ of certiorari granted upon the petition of any party to any civil or criminal case, before or after rendition of judgment or decree." If a similar statute applied to review of CAAF decisions, then the Supreme Court would have jurisdiction to review Denedo now, though it would have complete discretion to decline to exercise that jurisdiction for any reason, including lack of ripeness. But the statute providing SCOTUS jurisdiction over CAAF cases reads nothing like § 1254 -- and the reason it doesn't was to severely restrict military appellants' right to even seek cert. § 1259 provides:

Decisions 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:
(1) Cases reviewed by the Court of Appeals for the Armed Forces under section 867(a)(1) of title 10.
(2) Cases certified to the Court of Appeals for the Armed Forces by the Judge Advocate General under section 867(a)(2) of title 10.
(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.
(4) Cases, other than those described in paragraphs (1), (2), and (3) of this subsection, in which the Court of Appeals for the Armed Forces granted relief.

The only basis under which Denedo could possibly qualify for review is (4), but since CAAF didn't "grant relief," as that phrase is typically construed, it doesn't fall within SCOTUS's statutory jurisdiction.

So those who think that the United States should have a right to seek SCOTUS review of Denedo now should be getting in touch with their members of Congress to seek an amendment to § 1259 to make it read more like § 1254.

Interestingly, neither of the pending bills before Congress to expand SCOTUS's cert jurisdiction over military justice cases wouldn't bring Denedo within the Supremes' statutory cert jurisdiction. Both H.R. 3174 (which has been passed by the full House of Representatives) and S. 2052 (which has been favorably reported out of the Senate Judiciary Committee) would amend § 1259 by adding "or denied" after "granted" in subsections 3 and 4. But because relief has yet to be either granted nor denied in Denedo, SCOTUS statutory cert jurisdiction doesn't exist now and still wouldn't exist even if one of those bills were to become law.

But there's no cause for alarm unless and until § 1259 is amended to function more like § 1254. If CAAF ever were to actually affect the United States' interests by granting relief in Denedo or some similar case, then the United States would have jurisdiction under current law to seek relief from the Supremes. In essence, the current version of § 1259 elevates what would normally be the prudential consideration of ripeness into an actual jurisdictional requirement.

Martinez Capital Court Martial Update

Here and here are the latest from the Martinez case via WRAL in Raleigh. The government rested yesterday and the defense opens its case today. Now I don't know if this was part government's strategy, but let me say this, I think it was an incredibly smooth tactical move for the government to force trial defense counsel (TDC) for an alleged killer of two Army officers to open their case on Veteran's Day. Not the aura you want as a TDC.

Cert petition in Seawell

We previously discussed the recent military cert petition in Seawell v. United States, No. 08-588, here. Here's a link to the petition (minus tables and appendices).

Grant, grant, grant

Today's CAAF Daily Journal update included four grants, one of which we already discussed here. Let's note the other three.

Grant 1:

WHETHER THE ARMY COURT ERRED WHEN IT FOUND THE MILITARY JUDGE'S ERRONEOUS ADMISSIONS OF EVIDENCE HARMLESS BEYOND A REASONABLE DOUBT.

United States v. Garndinier, __ M.J. ___, No. 06-0591/AR (C.A.A.F. Nov. 6, 2008). Gardinier is making a return trip to CAAF. See United States v. Gardinier, 65 M.J. 60 (C.A.A.F. 2007). The unpublished ACCA case that this seeks to review is available here.

Grant 2:

WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED BY AFFIRMING A FINDING OF GUILTY OF COMMUNICATING INDECENT LANGUAGE WHERE THE STAFF JUDGE ADVOCATE'S RECOMMENDATION AND THE COURT-MARTIAL PROMULGATING ORDER STATED THE OFFENSE AS ATTEMPTED COMMUNICATION OF INDECENT LANGUAGE. SEE UNITED STATES v. DIAZ, 40 M.J. 335 (C.M.A. 1994).

United States v. Thomas, __ M.J. ___, No. 08-0738/NA (C.A.A.F. Nov. 6, 2008). NMCCA's unpublished decision isn't available on its web site, but I've posted it here. United States v. Thomas, No. NMCCA 200700858 (N-M. Ct. Crim. App. May 27, 2008).

Grant 3:

WHETHER APPELLANT'S PLEAS TO ALL CHARGES AND SPECIFICATIONS WERE IMPROVIDENT BECAUSE THE MILITARY JUDGE DID NOT EXPLAIN OR DISCUSS THE DEFENSE OF LACK OF MENTAL RESPONSIBILITY, DID NOT SATISFY HIMSELF THAT COUNSEL HAD EVALUATED THE VIABILITY OF THE DEFENSE, AND DID NOT ELICIT FACTS FROM APPELLANT THAT NEGATED THE DEFENSE.

United States v. Riddle, __ M.J. ___, No. 08-0739/AR (C.A.A.F. Nov. 6, 2008). I can't find an electronic copy of ACCA's opinion. Army Lurker, do you have it?

Denedo distributed for conference

Today the Supremes' clerk's office distributed the SG's cert petition in Denedo for conference. (Here's the link to Denedo's docket on SCOTUS's web site.) The case will be conferenced on Tuesday, 25 November -- two days before Thanksgiving. I don't know yet whether orders are expected to be issued the following day or whether we'll have to wait until 1 December to learn anything.

While the docket indicates that the cert petition and opposition were distributed, it doesn't reflect the filing of a reply to Denedo's opp. Nor is a Denedo reply up on the SG's web site. So as of now, the SG has never addressed the jurisdictional problem in the case.

Denedo made SCOTUSblog's "Petitions to Watch" list here. I know it's never wise to bet against the SG at the cert stage, but I think that the jurisdictional and ripeness problems in the case will be sufficient to result in a cert denial. But if I'm wrong, the Kabul Klipper's Golden CAAF will soon be traveling to Code 46.

BIG news day

Denedo was distributed for conference, CAAF's daily journal update included grants galore, and we have the full text of the Seawell cert petition.

Army JAG Corps' military justice additional skills identifiers program

In his post here, the Super Muppet of Appellate Advocacy discussed learning of the Army's counterpart to the Navy JAG Corps' military justice career track while at this year's Crim Law New Developments Course. Apparently CAAFlog has at least one Army reader. Over our virtual transom, we received a copy of the Army JAG's policy memorandum establishing the military justice additional skills identifiers program. We've posted a copy here.

A.F. L. Rev. APB

This past week, I believe I saw a hard copy of Volume 62 of the Air Force Law Review, but it isn't available on the Air Force JAG School's web site. Has anyone found an online version of Volume 62? And while we're discussing the Air Force JAG School's website, my home computer can't open the older volumes of the Air Force Law Review that are available here. Can anyone else open them? Is it my computer or the web site that's causing the problem?

SNAFU scuttles press coverage of Navy court-martial

Via the NIMJ web site, here's a link to an article from the Virginian-Pilot about a contested judge-alone attempted murder court-martial tried at Norfolk last week.

Proceedings began on Tuesday, when the military judge continued the case until January with the possibility of returning on the record sooner if a PTA was reached. Following the continuance, a Virginian-Pilot reporter asked a PAO to inform her of any developments in the case. Contrary to initial expectations, the case actually proceeded to trial on Wednesday. But apparently the PAO wasn't informed that the case had resumed until Friday, when the case had already resulted in a conviction and sentencing proceedings were underway. And because the PAO didn't know the case had restarted, neither did the reporters who were attempting to follow it.

Mistakes happen. But one must wonder whether a culture of insularity contributed to this mistake. After all, if public and press access to proceedings is a core value of a system, a mistake like this is less likely to occur than if public and press access is viewed as a necessary evil. And if a particular office has a close working relationship with the base PAO, it is far less likely that the office would forget to notify the PAO when plans change than if dealings with the PAO are infrequent and/or unwelcome.

Interestingly, the Tully Center for Free Speech's recent empirical study of the availability of public information about court-martial proceedings (which we discussed here) found that the Navy provided less information about court-martial proceedings than any other branch of the military.

Martinez capital court-martial update

Here's a link to the Fayetteville Observer's most recent update on the Martinez capital court-martial. The article reports that the prosecution plans to rest early next week and that trial proceedings will be held on the Veterans Day holiday.

Law, Ethics, and War on Terrorism symposium now available online

In September, the South Texas Law Review held a symposium on Law, Ethics, and the War on Terrorism featuring presentations by many distinguished military law and military justice experts (including CAAFlog contributor Gene Fidell). Here's a link to the symposium's schedule, which lists the presenters and their topics.

In the Opinio Juris international law blog (or would that be "international blawg"?), Professor Chris Borgen -- one of the symposium presenters -- lets us know that the symposium is now available online as a videostream here and here. And here's a link to Professor Borgen's discussion of the symposium and announcement that it's now available online.

Anyone have any Denedo intel?

Here we are on the 8th of November and neither of two developments that I anticipated would happenin in Denedo last week seems to have occurred. Neither the SCOTUS nor SG's web site reflects a reply to Denedo's opp. And SCOTUS's web site doesn't reflect a distribution of the case for conference. Does anyone know what's happening or about to happen?

New Developments Course

Like many readers I suspect, I just returned from the 32nd Criminal Law New Developments course at The Judge Advocate General’s Legal Center and School. As usual, Charlottesville is beautiful in the fall. Here are a couple of quick highlights:

1- The Army has apparently developed a similar sort of program as the Navy’s Military Justice Litigation Qualification career path. It was referred to as “S.I.” Any of our Army friends have more details? Can somebody email us with the instructions/references establishing this program? From what I could gather, it was different than the Navy’s litigation qualification in three important respects: (1) it does not include precept language designed to highlight the need for such qualified officers at promotion boards, and (2) there seemed to be less emphasis on the assignment of qualified officers into litigation billets as there is in the Navy, and (3) there are four levels instead of two. Folks with more information please correct me and fill out the little I was able to pick up. I was hampered in my understanding of the brief by my ignorance of Army abbreviations.

2- CAAFlog and Mr. (vice Col) Sullivan received a brief shout out when Kennedy v. Louisiana was discussed.

3- Although I generally agree with the majority of our contributors that the commissions is off-topic or at least darn close, LCDR Brian Mizer did give a very interesting account of the OMC from the defense counsel perspective. What was most interesting was the reaction of the audience of around 300 uniformed attorneys. LCDR Mizer was brutally honest and sarcastic. It would have been easy to be offended by him if you were looking for excuses, but the audience seemed very well disposed to him, asking several probing questions. The vast majority of attendees were very receptive to his insights and opinions, or at least those who were not did not make many comments or display a reaction.

I wanted to give a particular nod to MAJ Charles Neill, JA, USA. Many of the speakers did a good job, but MAJ Neill seemed to have that right balance of useful information, clear presentation, with the right amount of clever humor thrown in that so many of the Army (and Navy at NJS) instructors aim for, and that so few actually can pull off.

CAAF denies court-martialed civilian's writ appeal

CAAF has denied the writ appeal in Ali v. Austin, which we previously discussed here, here, and here. Ali v. Austin, __ M.J. ___, Misc. No. 09-8001/AR (C.A.A.F. Nov. 5, 2008) (summary disposition). It's still possible that the Judge Advocate General of the Army could refer the case to ACCA for review under Article 69. But barring such a move, the first civilian convicted by a U.S. court-martial since the Vietnam war will have no right to a judicial direct appeal.

The Ali case highlights a problem with subjurisdictional courts-martial. A review of the last five years' annual reports reveals that each year, most of the courts-martial that qualified for Article 66 review were special courts-martial, not GCMs. So each year, most cases that qualify for judicial appellate review do so because they include a punitive discharge, not because they resulted in a year or more of approved confinement. But in the case of a civilian, no punitive discharge is possible. So if courts-martial of civilians follow a pattern similar to courts-martial of military members, most of those convictions won't qualify for judicial direct appeal. What is the logic of allowing a civilian to be stigmatized with the life-long stain of a federal conviction without a right to any judicial direct appeal?

The Article 2 amendment that resulted in court-martial jurisdiction over civilians in contingency areas went through Congress with little formal consideration. It seems unlikely that most members of Congress understood that they were allowing civilians accompanying our forces in the field to be convicted without any guaranteed judicial direct appeal. If I'm right about that, perhaps the next Congress will correct this oversight.

CAAF grant

CAAF granted review of these issues yesterday:

I. Whether the evidence is legally sufficient to support the finding of guilty for disobeying a lawful command where there was no evidence that the command was directed personally to Appellant or that Appellant knew it was from a superior commissioned officer.

II. Whether the order in the specification of Charge II was a lawful order when the evidence indicated the order's purpose was to accomplish some private end.

United States v. Ranney, __ M.J. __, No. 08-0596/AF (C.A.A.F. Nov. 6, 2008).

AFCCA's opinion in the case is available here. The second issue in the case involves an Air Force E-6 dating a Marine Corps (or, in the words of the AFCCA opinion, "Marine Corp") E-3. Nothing in any standing order prohibited the relationship and there was no direct superior-subordinate relationship between the two. But the Marine E-7 for whom the Air Force E-6 worked ordered him to the stop the "offensive" aspect of his relationship with the E-3. Apparently he didn't.

AFCCA agreed with Technical Sergeant Ranney that the military judge erred by having the members decide the question of the order's legality rather than deciding it himself. Id., slip op. at 6. But AFCCA went on to hold that the order was legal. AFCCA reasoned:

[T]he evidence in the record establishes that GySgt F's reason for issuing the order was his concern regarding the conflict between the duties imposed upon an NCO with regard to reporting non-compliance of junior Marine enlisted members with various restrictions placed upon their social activities and the existence of a relationship between an NCO and a junior enlisted member which tended to engender such non-compliance. He expressed concern about the impact such a situation would have on other junior enlisted members within the unit -- in essence its impact on the discipline and moral [sic] of the unit, clearly a traditional concern of those in supervisory positions within the military.

Conclusion

Had there been a supervisory relationship between the appellant and LCpl M within the unit, the basis for GySgt F's concerns would have had more gravitas. Yet, we are charged with discerning whether there existed a rational nexus between military duty and the order in question, not to parse where that military duty sits on a continuum from greatest to least. Based on the evidence in the record, we conclude that such a nexus existed in this case, and consequently the order was lawful.

Id., slip op. at 6-7.

CAAF will now review that conclusion. And my guess is that CAAF will consider something that AFCCA didn't discuss: the gunny's order's implications for Technical Sergeant Ranney's First Amendment right to freedom of association. See generally United States v. Brown, 45 M.J. 389 (C.A.A.F. 1996) (discussing the extent to which the First Amendment right to freedom of association applies to servicemembers).

Leahy and Hatley Charges Update

According to Stars and Stripes, here, Army Sgt. Michael P. Leahy Jr., has been charged with an additional count of conspiracy to commit premeditated murder (with 1st Sgt. John E. Hatley) and premeditated murder for a Jan. 2007 detainee shooting death near Baghdad separate from the four detainees they allegedly conspired to kill earlier this year, as we reported here.

UPDATE: A HQJMTC (I'll let you figure that out) press release, here, notes that both offenses occurred in 2007 and no charges have been preferred against 1stSgt Hatley for the Jan. 2007 death, yet. Corrections made above. It also says that the Art. 32 hearing for Sgt. Leahy is scheduled for November 12, at 9 a.m. at the Rose Barracks Courthouse in Vilseck, Germany.

Mid-Day Martinez C-M Update

No Daily Journal entries of interest and no new opinions, so I bring you this mid-day update on the Martinez capital proceedings from Fort Bragg. According to the Fayetteville Observer, here, the MJ warned the trial counsel to stop laughing at statements made by the defense counsel (comment away about the appropriateness of that, and whether you have ever wanted to do the same thing).

Yesterday, see Fayetteville Observer report here, Martinez's defense counsel asked that a panel member be removed due to concerns about the member's statements in a memo to the MJ. The memo wanted to know why after the member's question to a witness was blocked by the MJ that the defense counsel was allowed to ask a nearly identical question of the witness.

Martinez daily update

Here's a link to the Fayetteville Observer's report on Wednesday's court-martial proceedings in the capital Martinez court-martial at Fort Bragg.

Supremes docket new military cert petition

On 3 November, the Supremes docketed a cert petition in Seawell v. United States, No. 08-588. Seawell arises from a 5 August 2008 summary affirmance by CAAF. United States v. Seawell, __ M.J. ___, No. 06-0502/AF (C.A.A.F. Aug. 5, 2008) (summary disposition). AFCCA's unpublished opinion in the case is available here. United States v. Seawell, No. ACM 35531 (f rev) (A.F. Ct. Crim. App. Dec. 28, 2007).

The cert petition, filed by my colleague Capt Jen Raab, offers this QP:

Does a mandatory supervised release program violate the Fifth and Eighth Amendments, where the program allows the Government to revoke earned credit against an adjudged sentence without due process thereby resulting in an increase in punishment?

Latest report from the Martinez court-martial

Here's a link to the Fayetteville Observer's dispatch from an election-day shortened session in the Martinez capital court-martial being tried at Fort Bragg.

One effect of the election

It has come to my attention that we have a new President Elect. Though I don't think it ever became a campaign issue, one power the new President will have is the appointment of a CAAF judge. Unlike Article III judges, of course, CAAF judges sit for 15-year terms (which may be renewed). Chief Judge Effron's term expires in 2011, a little more than a year before the next presidential election. No other CAAF judge's term will expire during the 2009-2013 presidential administration.

Latest from the Martinez capital court-martial

Here's a link to the latest on the Martinez capital court-martial from the Fayetteville Observer. (This post was made using my new wireless hardware. Not bad for an unfrozen caveman lawyer.)

Cert denied in two military cases

The Supremes today announced that they denied cert in Ryan v. United States, No. 08-422, and Swanson v. United States, No. 08-6476.

More court-martial follies

Again courtesy of my colleague Capt Mike Burnat, this excerpt shows why military judges should read the record before authenticating it:

MJ: "I have been probably qualified and sworn and detailed to this court-martial by . . . ."

And in the least competent witness department, a military judge made this observation: "in its 20 years in the Air Force, the court has never seen a witness incorrectly raise the wrong hand when taking an oath . . . ."

Fayetteville Observer's latest on the Martinez capital court-martial

The Fayetteviile Observer's reports on the Martinez capital court-martial at Fort Bragg have become required reading for me. Here's a link to the latest dispatch.

In the event of a conviction and death sentence, it certainly seems that there will be potential appellate issues in the case.