Wednesday, November 26, 2008

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.)


Anonymous said...

The NMCCA web site indicates that the case will be heard en banc in their oral arghument calendar.

The Cat said...

This is going to be interesting;
I read the new 120 this way: if the following conduct has occurred, lack of consent can be inferred. The statute reads:
(c) Aggravated sexual assault. Any person subject to this chapter who:
(2) engages in a sexual act with another person of any age if that other person is substantially incapacitated or substantially incapable of--
(A) appraising the nature of the sexual act;
(B) declining participation in the sexual act; or
(C) communicating unwillingness to engage in the sexual act;
is guilty of aggravated sexual assault and shall be punished as a court-martial may direct.

All of those, if the incapacity of the victim is established, can infer that the sexual contact was not consented to. Probably the most common scenario in the military will be the victim is passed out drunk. The victim is not capable of giving consent, and if the government proves, beyond a reasonable doubt that the defendant engaged in sexual contact with a victim who was passed out (unconscious) drunk, a jury can reasonably infer that such sexual contact was without consent.

One may ask, well, what if the victim was merely drunk or even very drunk, judgment impaired, but not passed out, unconscious drunk. Well, that burden falls on the government, since the government must prove beyond a reasonable doubt that the victim suffered from a SUBSTANTIAL incapacity. My guess is that being very drunk won't cut it since in most cases voluntary intoxication, even to the point where you don't remember much of your conduct, is not a defense to a criminal act.

Another example could be a medical person taking advantage of a victim who has been put under and is unconscious.
There probably are other incapacities short of being unconscious that could show a victim incapable of giving consent, but I am not sure which ones would show up in the military very often. (I'm thinking of a victim that has a severe mental handicap.)

If the government meets that burden, telling the defendant he has the burden of proving consent or mistake of fact by a preponderance does not offend me, or I think the constitution, because the prohibited act, in and of itself, necessarily implies lack of consent. In other words, simply engaging in the prohibited conduct in the statute is criminal unless there is a justifiable excuse. But if for example the statute read:

Any person subject to this chapter who engages in a sexual act with another person of any age is guilty of aggravated sexual assault, that would be problematic. That statute simply states that engaging in a sexual act with another is aggravated sexual assault unless the defendant proves consent. That would be impermissibly shifting the burden since the true definition of an aggravated sexual assault is the fact that it was done without consent or done knowing the victim could in no way articulate or understand consent/no consent. It would essentially, turn sexual assault on its head. The way the statute is written, it does not do that.

We know from experience and human nature that sexual contact between two people is not per se criminal; its one’s lack of consent or inability to give such that makes the sexual contact criminal. That is in the statute.

Isn't self defense an affirmative defense to murder? That has never been held to unconstitutionally shift the burden. The government must still prove the homicide and killing another human being is homicide even if it is in self defense, just the self defense under the law makes the homicide justifiable. But the defendant has at the least the burden of production, and quite possibly the burden of proof by preponderance before the burden proof and persuasion shifts to the government.

Also important to note, while the defendant here may have a burden of proof by preponderance, the government always shoulders the burden of persuasion, the government also shoulders the burden of proof beyond a reasonable doubt. The defendant never shoulders the burden of persuasion.

This will be interesting. My understanding is that none of the military courts of appeal has ever struck down a statute as unconstitutional, they may have with respect to a rule from POTUS, but never a statute. If it is struck down, almost assuredly this would be reviewed by SCOTUS.

The Cat said...

This also brings up another (related) topic:

The recording of oral arguments. Why can't the CCAs start doing that? CAAF's are recorded, and so are the 5th Circuit's. I suspect other circuits are as well, and so are SCOTUS. I would like to see the oral arguments recorded and on the web for the public to listen to.

Anonymous said...

Is this Frankie the cat?

Mike "No Man" Navarre said...

Anyone have any information on whether this case is related (by counsel or accused) to the Fairley case posted back in Sep 2008.

Anonymous said...

No Man,

The TC and DC in Fairley are not involved in this case. However, the order does not state the name of the MJ. I suspect it is LtCol Beal.

Anonymous said...

BZ to the military judge who understands the concept of judicial independence and actually held what legal analysis has already lead many attorneys to believe. There are serious defects in the new Art 120 that are the result of Congress voting on something without knowing what they were doing. The statute can be fixed but not by trial judge intervention. Apparently there is only one military judge who had the you-know-whats to take that stand.

I am suspicious by nature, so the following observations may only be the result of my character flaw. The NMCCA seems to have become nothing more than a bump in the road on the way to CAAF - what the Govt wants, the Govt gets (e.g., see earlier post on Hickman). The series of reversals at CAAF should be alarming to anyone who follows appellate practice. If Fairly arrived at Code 46 first, why is Crotchett going first. Is Crotchett a stronger case for the Govt? If so, I suspect that the NMCCA chose to hear that case first because it plans to render a decision that saves Art 120, and the NMCCA will then resolve the other Art 120 cases by citing to Crotchett. Of course, as usual, we are off to CAAF.

Anonymous said...

Anon 9:45:00,

Perhaps you should provide some support for your theory that NMCCA is intentionally giving the Government what it wants without regard to the merits of the specific cases. Your conspiracy theory suggests that there is a concerted effort by numerous Marine Corps and Naval Officers to disregard the law all in an effort to benefit the Government. Some support for this theory is the very least you could provide - don't you think?

Anonymous said...

Anon 1:59

My observations are based, in part, on the following: (1) what the Govt wants is for the NMCCA to agree with it's view on a given issue; (2) the NMCCA does agree with the Govt's position or at lest rules in favor of the Govt;(3) we are off to CAAF; and (4) the NMCCA is reversed. This, by itself, is not unusual unless the number of reversals are out of the ordinary. It appears to me, based only on my following this blog, that the number of reversals has increased over the past 12 months or so. That may be nothing more than coincidence, it may be the result of CAAF taking a new direction after the NMCCA has relied on prior case law, it could be the result of individual judges taking a hard line on when relief is warranted, or it could be a court-wide philosophy.

Because I am suspicious by nature, I fall on the side of believing that what appears to be a sudden rash of reversals is the result of the lower court's prevailing thought process rather than the inability to analyze and apply existing law. Certainly, the NMCCA judges were not sent to that court with the belief that they cannot do the job.

One example that influences my thought process is the earlier blogs on Hickman. Hickman was an Art 62 appeal in which the NMCCA ruled the MJ erred as a matter of law concerning the intersection of orders violations and Art 31 rights. The citations are to cases 10 or more years old which tells me that the issue has not been written on recently. If not written on recently, and the issue is one of law that can assist practitioners, why release the opinion as a per curiam decision? The opinion is well written and the author does a good job of supporting his or her ruling. As someone who does not have access to per curiam decisions, I find the opinion very informative and believe it should have been at least an authored unpublished opinion if the NMCCA truely has faith in the results. The quick acceptance by CAAF causes me to believe there is a problem here and Hickman may be the next installment in NMCCA reversals. I may be completely off base in reading the tea leaves, but these are just my observations for whatever they may be worth.

Anonymous said...

The "quick" acceptance by CAAF? Is there a time limit for their acceptance? The appellant has 60 days to file. If CAAF took 4 months to grant would that be a better barometer? And I postulate that the reason CAAF accepted this case is because, as you said, the law itself is old and in need of review. Also, since 31b is so ingrained in military practice, CAAF tends to give a hard look at such cases to ensure that the spirit and letter of the law is being upheld. And finally, regarding the number of NMCCA (or CCA) cases being overturned by CAAF...juxtapose that number with the number of cases that NMCCA reviews. You'll find your number may seem glaring when only looking at the total number of cases at CAAF but relatively small in relation to the total number of cases reviewed.

The Cat said...

This attack on the NMCCA by the anonymous writer is pretty bad.

I agree with the other anonymous writer, that attack implies (necessarily) that career and very senior officers are intentionally disregarding their duties to be fair, impartial, and unbiased in their decisions. Just because the NMCCA sides with the government very often, does not mean that they are biased for the government. Almost all appeals to the circuit courts in criminal cases are sided on the government.

Remember also, ( and this is how I always viewed my job) the government’s job is to be right and to seek justice. If the government attorneys are truly seeking that, then the large majority of the cases reviewed on appeal should be affirmed. I would start to worry if that were not the case, as that could be a sign that the government attorne has lost track of what his/her function is.

Also, his/her view that CAAF reverses often is really misplaced. First, I practiced at 46 for three years on active duty, and I am there now as a reservist. I can tell you that while I was there at 46, that close to 50% of the cases CAAF granted were reversed. But CAAF grants less than 5% of the cases NMCCA reviews each year (I am basing that on NMCCA reviewing about 2000 cases per year).

Furthermore, I heard the CAAF judges themselves state that one of things they look for in deciding whether to grant review is if they believe they are going to reverse the case. If that is a factor ( and I am not sure how much weight it has compared to other factors the judges may consider) then the fact that CAAF denies review in the other cases lends itself to believe that CAAF did not believe it would reverse the case.

Also, there are numerous times where CAAF grants review and summarily affirms. You don't see those unless you go on the CAAF website and review the daily journal.

The bottom line is this, based on the typical nature and culture of the military, it is not surprising to see the NMCCA or the CCAs (except Air Force maybe :)) to be of more conservative persuasion. Being that CAAF is civilian and that the President is restricted to only appointing three of the same party to the court, it is not a surprise to find that court not as conservative.

Also, while at 46, I took government appeals and lost a couple of times at NMCCA (I know, throw your shot).

BOTH COURTS, I always believed, whether I agreed with the decision or not, exercised fair and impartial judgment when coming to their decisions.

Anonymous said...

I think Anon's 9:45 paranoia-based (hey, they said they were suspicious by nature) assertions need to be addressed further. I even saw another similar attack on Mr. Reed and the entire CCAs in another later blog.

First, in a completely futile attempt to provide support (when challenged by another), Anon 9:45 offers not a shred of substance. Anon 9:45 even goes so far as to say that their belief is "based only on my following of this blog." Buddy, making spurious attacks on the ethics of otrhers based upon foloowing a blog clearly suggests something of your ethics.

It is no secret that this blog's main participants are from the Navy and Marine Corps legal community. It is also no secret that (if required to be pigeon-holed) they are more closely aligning to trial and appellate defense. Thus, it hardly seems out of the norm that the site would focus on reversals rather than CAAF affirmations and denial of petitions.

Now you said that you believe in some conspiracy because the Fairly case got to the court before Crotchett. Maybe so, but without additional information, like when the briefs were filed, who the counsel are, etc., it is a rash rush to judgment to impune the integreity and ethics of others. Definately doing so, based upon a blog speaks clearly of your integrity.

Now if anyone with real information on these two cases could provide amplifying information that would be appreciated.

You also imply that a service court must be attempting to hide something if they issue a per curiam opinion. Since CAAF readily takes appeals on any type of service opinion, I hardly see any import to your position.

Now to my own hypothesis. The Navy and Marine Corps conduct more courts-martial each year than the others services. If there really are increased number of reversals for NMCCA, it may be due to the greater amount of courts that that service conducts.

However, unlike Anon 9:45, I tested my own hypothsis and this is what I found out (I based all information from the real CAAF site looking at the yearly reports and then looking at all the cases that were delieverd with an opinion)(the numbers could be slightly off, this does not include summary dispositions, and for some reason I could open the 2006 year annual reports so I went w/o it):

aff 11 9 9 1
rev 7 9 7 1

44% 39% 50% 43% 50%

aff 14 5 13 0
rev 7 7 13 1

47% 33% 58% 50% 100%

aff 7 14 18 0
rev 5 5 6 0

29% 42% 26% 25% N/A

aff 11 18 13 4
rev 9 6 3 0

28% 45% 25% 19% 0%

Even looking at the percentages of reversals as a function of cases heard, NMCCA does not appear to be reversed any more frequently than the others services. In fact my own hypothesis seems to have been disproved because they didn't have the highest number of reversals. Now add the dats to the number of cases the CCA heard each relative to the number of cases that CAAF reversed.

7/976 9/2069 7/527 1/22
.7% .4% 1.3% 4.5%

7/1032 9/2088 13/476 1/24
.7% .4% 2.8% 4.2%

5/1200 5/1500 6/540 0/25
.4% .3% 1.1% 0%

Maybe the next Cox Commission will hire me to do some stats, but since my stats probably were not in line with their desired results, maybe they would rather have Anon 9:45 providing the suppoort for their positions.

Dale Saran said...

FWIW, I am the appellee's counsel and will be arguing on Wednesday. "The Cat", I think you missed something in your analysis (probably not surprising I believe that, eh?), but you should re-read the entire statute. Look closely at how consent is defined under (t)(14) and how affirmative defenses operate under (t)(16) and then look at how the crime is defined again. Look also at how the burdens are assigned and under RCM 916. Ask yourself how this plays out at trial and how does the MJ instruct the members if the defense raises only "some evidence" to negate guilt (create reasonable doubt) but not enough to meet preponderance of the evidence standard? Now what? Major Howard Hoege's (USA) article in Army Lawyer is worth reading as a primer, as well.

One further point, I presume the highest integrity of the opposing counsel and judges, both at trial and appeal. Sure, there are some people who can only see one side of the issue, but I don't interpret that as a conspiracy; that's simply narrow-mindedness and it's part of the human condition.

I look forward to an invigorating discussion on the matter before our fine court. Either way, I assume this goes to CAAF. If the govt loses, they appeal; if we lose, we will appeal. It's a very important issue, obviously.

Dale Saran
Of Counsel, The National Military Justice Group

Anonymous said...


Good luck during round 1 on Wednesday. It is about time that someone makes some assumptions that have a basis in reality. At least we can get listen to the recorded arguments when you do round 2 at CAAF.