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.