Sunday, December 28, 2008

Top 10 military justice stories of 2008 -- #6: A military judge rules that the new Article 120 is unconstitutional

As explained by Major Howard H. Hoege III's interesting but hideously flawed Army Lawyer article arguing that the new Article 120 is unconstitutional, the new Article 120 traces its roots to a congressional statute requiring DOD to report back to Congress with proposals to modernize the military's sexual assault laws. Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005, Pub. L. No. 108-375, § 571, 118 Stat. 1811, 1920-21 (2004). DOD responded by "strongly recommend[ing] no change to either the UCMJ or the MCM, arguing that case law had developed the UCMJ and the MCM to a point where any form of sexual assault could be prosecuted under the UCMJ." Major Howard H. Hoege III, "Overshift" The Unconstitutional Double Burden-Shift on Affirmative Defenses in the New Article 120, Army Law., May 2007, at 2, 3 n.16. But DOD also dutifully presented Congress with six options and recommended Option 5 if Congress were to change the existing statutory scheme. Id. "Congress ultimately drafted the new Article 120, basing substantial portions of the new statute -- including the new statute's burden-shifting scheme -- on Option 5 of the DOD report." Id. at 3.

Even before the new article went into force, Major Hoege argued that it was unconstitutional. But his argument was based on a fairly egregious misunderstanding of the law. He topped off many minor errors in his article with this whopper: "While Mathews v. Eldridge was a civil case, the Supreme Court has also used its three factors to examine procedural due process challenges in criminal cases." Id. at 13 (citing Hamdi v. Rumsfeld, 542 U.S. 507, 528-29 (2004) and adding the parenthetical: "applying Mathews v. Eldridge in a criminal case"). Which led to this double whopper (or double royale for you Pulp Fiction fans): "The sum of the analysis of treating the accused's initial burden as an interlocutory matter leaves little doubt that applying the Mathews v. Eldridge factors calls for a procedural due process challenge to the new Article 120's double burden-shift." Id. at 15. Of course, Hamdi was NOT a criminal case. On the contrary, the Supreme Court noted that the case was all about whether a U.S. citizen could "be detained outside the criminal process." Hamdi v. Rumsfeld, 542 U.S. 507, 524 (2004). No court would be tempted to apply Mathews v. Eldridge in a criminal context since 1992, when the Supremes held that "the Mathews balancing test does not provide the appropriate framework for assessing the validity of state procedural rules which, like the one at bar, are part of the criminal process." Medina v. California, 505 U.S. 437, 443 (1992). And certainly no court would be tempted to apply Mathews in a military justice context since 1994, when the Supremes expressly rejected Mathews and Medina as the proper due process test in a military justice case and instead adopted a standard even more deferential than Medina's. So Major Hoege's argument clearly doesn't survive even cursory scrutiny.

Notwithstanding arguments that it is unconstitutional, the new Article 120 duly took effect on 1 October 2007. And, in due course, servicemembers allegedly violated it. Which brings us to the court-martial of Petty Officer Fairley, whose alleged offenses led Judge Raymond E. Beal II (what is it about new Article 120 critics and Roman numerals?) to hold that it is unconstitutional, though on grounds far different than those advanced by Major Hoege. We posted his ruling here. He concluded: "Congress has affirmatively shifted the burden of proof to the defendant. The result, in a case such as this one where the defendant is required to prove a critical fact in dispute, is to increase further the likelihood of an erroneous conviction." And that, concluded Judge Beal, violates the Supremes' holding in Mullaney v. Wilbur, 421 U.S. 684 (1975), requiring the prosecution to prove beyond a reasonable doubt every fact necessary to constitute the crime charged.

Following Judge Beal's ruling, the trial counsel borrowed a page from the appellate government playbook and moved for reconsideration. This led to a second ruling in the case, again holding the new Article 120 unconstitutional. We posted that ruling here.

The Government filed an Article 62 appeal in a different case that resulted in the same conclusion and that case (Crotchett) was orally argued en banc at the Navy-Marine Corps Court on 3 December, as we discussed here.

I honestly haven't studied the new Article 120 sufficiently closely to have an opinion as to whether it is or isn't constitutional. But obviously Judge Beal has studied it and carefully concluded that it isn't. Judge Beal deserves respect both for calling it like he sees it and for having the humility to decline to rewrite the statute in an attempt to fix the purported constitutional defect himself, as I've heard second-hand that some other military judges have tried to do. As Judge Beal wrote in his opinion denying reconsideration, "this court is not free to disregard any portion of the statute -- to do so would be to embark upon judicial legislation."

Of course, the system as a whole benefits from Judge Beal throwing a flag on the new Article 120 since this will result in military appellate courts definitively resolving these challenges more quickly than would have occurred if they were addressed only in the normal course of review after servicemembers were convicted under the new statute. That would have led to a number of convictions that could be endangered by a pro-defense ruling on appeal. The number of potentially affected cases will be far smaller because the case expeditiously went to NMCCA on an Article 62 appeal -- and will, in all likelihood, continue on to CAAF regardless of which side prevails at NMCCA.

So even though we don't yet know whether his ruling will ultimately stand or fall, Judge Beal's invalidation of the new Article 120 ranks as one of the top-10 military justice stories of 2008.


Dew_Process said...

MAJ Hoege's article is not a shining example of scholarship - the Hamdi case citation proved that. But, the failure to address other problem areas in the "new" Article 120, e.g., self-incrimination issues; Brady/Kyles issues; void for vagueness and overbreadth issues, etc., cement Dwight's characterization. If, e.g., an Accused is challenging a confession as being involuntary, s/he has the initial "burden" to allege facts sufficient to provide a hearing. But, that's not a burden of "proof" which remains with the government as we all know.

Does the Art. 120 "process" mandate that the Accused be given expert "investigative" assistance to meet his purported burden? And, if not, is that a separate Due Process denial?

Litigating "Bills of Particular" will become fertile ground here now, and the failure to do so under Due Process "notice" requirements, will generate IAC claims.

If the DoD didn't want to change the law, why is the government spending so much time and effort trying to defend it? Why not just go back to Congress, tell them "you gave us a piece of crap legislation, and it needs to be fixed by doing a, b, c, and d."

And of course, since neither Art. 66 nor Art 67, expressly gives the Courts the "jurisdiction" to declare a federal statute unconstitutional, will we see a Denedo type of appeal? Cf. 28 USC 2201(a).

Parker v. Levy has new life!!!

Cloudesley Shovell said...

I think you're being a little hard on Major Hoege. His "Overshift" article was focused on the burden-shifting scheme for affirmative defenses, not the statute in its entirety. Given that the Gov't admitted in Crotchett that the burden-shifting scheme as written in the statute is unworkable, Major Hoege had a point.

There are myriad other problems with Art. 120. The affirmative defenses provisions are so confusing that even the President screwed up their implimentation in the Rules for Courts-Martial. Read RCM 916 carefully and revel in its internal inconsistencies.

Another looming, but as yet unexplored issue, is how Art. 120(t)(16) affects Art. 50a. Art. 120(t)(16) arguably changes the burden of proof for an insanity defense for Art. 120 prosecutions. Whoops.

To clear matters up, if there is any confusion, both Fairley and Crotchett are before NMCCA on Art. 62 appeal. The Court chose to hear oral argument in Crotchett but not Fairley. Also, in other interesting news, Fairley is in pretrial confinement on another sexual assault charge unrelated to the charge currently on appeal. I fear poor Fairley is going to learn all about MRE 413 the hard way.

Finally, I agree that constitutional issues should be squarely addressed when they arise--forcing a statutory fix is far better than patching things up with judicial band-aids. Unfortunately, the military judge acted too soon. There is absolutely no evidence in either Crotchett or Fairley that the affirmative defense will even apply, for the simple reason that no evidence has even been presented on the merits in either case.

Vincent Vega said...

All true Pulp Fiction fans know that a "Royale" is the French version of a McDonald's quarter-pounder.

A Whopper is just a whopper, where it's sold. There are no Burger Kings in France.

Dwight Sullivan said...

Right you are, Vincent:

. . . .

And you know what they call a Quarter Pounder with Cheese in Paris?

They don't call it a Quarter Pounder with Cheese?

No, they got the metric system there, they wouldn't know what the [expletive deleted] a Quarter Pounder is.

What'd they call it?

They call it Royale with Cheese.

Royale with Cheese. What'd they call a Big Mac?

Big Mac's a Big Mac, but they call it Le Big Mac.

Le big Mac ! Ahhaha, what do they call a Whopper?

I dunno, I didn't go into a Burger King.

Anonymous said...

NMCCA also has the Art 120 issue in US v NEAL from Pensacola. The judge there waited until the entire case was presented to the members and then dismissed the charge. The Govt took an Art 62 appeal. Does anyone have the details concerning NEAL? In any event, NMCCA now has the Art 120 issue both in a pretrial and a trial context.

Anonymous said...

Anon 1557 - Did the MJ in Neal abate the proceedings, or did he let the remaining charges go to the panel for a decision? If he let the panel decide the remaining offenses, there are constitutional Double Jeopardy issues [not Art. 44].

Cloudesley is correct - the combination of the statutory language in the "new" Art. 120, coupled with the MCM provisions are enough to drive anyone crazy. And, as an aside, the NIMJ has been at the forefront of seeking public comment on MCM changes - Gene, if you're reading this, did they offer these MCM changes for RCM 916 for public comment?

Anonymous said...

Dear Mr. Sullivan, your unwarranted, needless, and HIDEOUSLY vicious attack on Major Hoege makes you look like an insolent ass. Just thought you should know....

Dwight Sullivan said...

Dear Anon 1307,

I am sorry that you mistook my analysis of MAJ Hoege's article for an attack on MAJ Hoege. And I invite you to point out any errors I might have made in my analysis, just as I pointed out the errors in MAJ Hoege's analysis.

Dwight Sullivan

Dew_Process said...

Anon 1357 - As the self-proclaimed Defender of Insolent Asses, "DIA," [not that Dwight can't defend himself], one could not reasonably interpret his comments as an ad hominem attack.

Having personally worked on the Hamdi case, as soon as I saw that citation, I knew that it was "misplaced" to say the least. In fairness, I suspect that the problems with the Article probably had something to do with publication deadlines, the scourge of all Law Reviews and scholarly publications. But, that's what "Editors" are for.....

I'm just as "guilty" I guess, but poor scholarship in a journal that many of us use on a day-to-day basis, needs to be called out.

Anonymous said...

Anon 1357 here,

Calling out Major Hoege for failing to correctly address procedural due process in criminal cases is one thing. I get that. What I do not get are the snide, contemptuous, comments Mr. Sullivan used to demean Major Hoege while he “analyzed” Major Hoege’s work. For instance, why did Mr. Sullivan feel it was necessary to BEGIN his discussion about Major Hoege with:

“Even before the new article went into force, Major Hoege argued that it was unconstitutional. But his argument was based on a fairly egregious misunderstanding of the law.”

Why would he start with Major Hoege’s previous position when that position is irrelevant to his current article? It appears that Mr. Sullivan wanted to start us out with a little history so that everyone would know that he believes that the author of the present article does not understand the law and is unworthy of respect.

I guess that’s fine if that’s what you want this blog to be about. True, comments like “hideously flawed” and “egregious misunderstanding of the law” bring color and amusement to a post - but at what cost???

Dwight Sullivan said...

Anon 1357, I'm going to respond to your latest post. But is there any chance that you'll identify yourself to put us on equal footing? For example, I have no idea whether you're a lawyer (or whether you are in some way personally connected to MAJ Hoege). Knowing both of those things will help me frame my response.

Dwight Sullivan said...

Anon 1357,

I began the post by citing to MAJ Hoege's article because I found that portion of the article quite helpful in understanding Article 120's background. But his article is seriously flawed. Some lawyer might try to rely on the article in court. If so, that lawyer is going to get thwacked because there are few mistakes greater than erroneously relying on a legal standard that's been expressly rejected by the Supreme Court. So I provided fair warning to the reader that I'm providing some useful information from an article but please, please know that the article is flawed.

Look, I have absolutely nothing against MAJ Hoege. Certainly nothing in my post was aimed at him personally. I don't think I've ever met him. And I've previously made a favorable comment about him in another post. But I would hope that as a faculty member and an author, MAJ Hoege would agree that it is not only appropriate but also desirable to call attention to the mistakes in his published article. And I suspect MAJ Hoege would agree with me that his article is fundamentally flawed.

You write: "Why would he start with Major Hoege’s previous position when that position is irrelevant to his current article?" I think you misunderstand. The quotation you offer from my post was about MAJ Hoege's position concerning the current Article 120, which hadn't yet taken effect when MAJ Hoege wrote. Neither he nor I was addressing the previous version of Article 120 that governs pre-FY 2008 offenses.

Finally, the law can be a tough profession. MAJ Hoege was certainly being harsh to those who drafted the new Article 120 when he boldly asserted that they violated the Constitution. And I have no problem with him making such a bold statement if his analysis were correct. And I suspect that he would have no problem with my statements of disagreement with his article if my analysis is correct. And I have no doubt that my analysis of Weiss vs. Mathews v. Eldridge is correct -- though if anyone disagrees with that or any other proposition in my post, I do invite him or her to post a comment pointing to the possible error.

Anonymous said...

Anon 1357 here.

I prefer to stay anonymous but I will say that I am a lawyer and I understand the legitimacy of the points you have made. I have never met Maj Hoege. I’ll also admit that I misunderstood the quote I took from your post.
I also understand your rationale (Well, I do now!). I still, however, wish that you would tone down your language when assessing young judge advocates. That’s all. Just a little civility is all I ask.

Others will follow your lead……

Dew_Process said...

Anon 1357 --- "Context"

A Field Grade officer who is a Crim Law Instructor at a JAG School, who publishes something with material errors in his purported field of expertise, deserves the "Wrath of Kahn."

By our standards - chronologically at least - the Major may be "young." But, how about the MANY 0-3's in the various Appellate Defense offices that rely on that publication for Briefs, etc.?

Mediocrity cannot and should not be tolerated in our profession. The Article 120 issues are obviously something of interest to the readers of this Blog. And Colonel Sullivan's efforts are an important contribution to the profession's subset that practices military law.

Sometimes you just have to call them as you see them.....

Mr. Howard Hoege said...

Dwight, thanks for the opportunity to respond—I agree with you on two points. First, my article isn’t as solid as I would like for it to be. My goal was to get a mark on the wall & start some discussion about implementing a problematic aspect of the statute—I think I accomplished that—and I certainly fell short of writing a truly scholarly article publishable in a law review. Second, I agree that the Matthews standard is questionable in a criminal context, although I’d like to explain why I included it.

First, I’m going to “zing” you back. I noticed in your post that you left out the name of the 1994 case in which the Supreme Court applied a “different” procedural due process standard to the military. The case, of course, was Weiss v. United States, 510 U.S. 163 (1994). In that case, a petitioner—represented by Dwight Sullivan—argued that Mathews was the appropriate due process standard in that particular military justice case, disregarding Medina & Patterson. I didn’t read anywhere in the opinion that the Supreme Court thought your proposition was “hideous.” Truce?

I think most will agree that sometimes legal standards are unclear…even ones the Supreme Court articulates. Then, we litigate. You are absolutely correct that the SC said in Medina and Weiss that it would not apply the Matthews framework to criminal procedure questions. Medina and Weiss are arguably distinguishable, though, because they deal with procedural issues outside of the four corners of trial: Medina with an incompetency hearing and Weiss with the lack of fixed terms of MJs. While they have broadly-worded dicta, they also include limiting language in their holdings.

Patterson, 432 US 197 (1977), then, might be the better analogy (Medina, looks to it, too). Patterson considers the due process implications of—interestingly—shifting a burden of persuasion on an affirmative defense. Of course, Patterson doesn’t denounce Mathews…it ignores it, setting out a separate standard: “it offends some principles of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” So that’s our standard, right?

Sure…except that Patterson doesn’t meticulously apply this standard. It includes in its analysis a number of different considerations, even looking at the merits of a state weighing the assignment of the burden against it being “too cumbersome, too expensive, and too inaccurate.” Sounds a bit like Mathews. All of the cases talk in terms of “fundamental fairness” or “basic principles” and then look to safeguards and balances. The cases are all over the place, but they all employ 1) identifying some fundamental principle and 2) weighing that principle against government interests or action—just like Mathews. Even Weiss does this.

In the end, I settled on including Mathews in my article 1) because it’s the cleanest framework for counsel to grab hold of, 2) because the other cases, in my opinion, are doing something like Mathews no matter what standard they describe (there are a few), and 3) because by flagging Mathews, counsel that read my article could uncover the cases they might consider in litigating this type of challenge.

This all, of course, is not a statement of settled law, but an argument. I don’t necessarily ask that you or your readers agree with this truncated reply. I wanted to reply, though, because I hope folks won’t dismiss the entire article until they consider this explanation of the cases I included to form what was, ultimately, only one basis for my argument that the double burden shift is unconstitutional.

Dwight Sullivan said...

MISTER Howard Hoege? Did you get out? If so, what are you doing now?

Welcome to our little gab fest and thank you for responding. (And thank you for taking my pokes at your article so good-naturedly.)

Let me respond to your counter-zing with this surrebuttal. First, I don't want to aggrandize my role in Weiss v. United States, 510 U.S. 163 (1994). I was one of seven counsel representing the petitioners at the Supremes. But more importantly, you assert that we "argued that Mathews was the appropriate due process standard in that particular military justice case, disregarding Medina & Patterson." While we did argue that Mathews should be applied, we didn't disregard Medina or Patterson. On the contrary, we cited Medina twice in our cert petition, argued against its applicability for pages in our merits brief, and cited it again in our reply brief. We also expressly discussed Patterson in our merits brief. So we didn't simply ignore the recent Supreme Court case that applied a sub-Mathews due process standard to state criminal procedures; we tried to distinguish it. But here's the key part. We lost. Badly. The Supremes unanimously gave us a sub-Medina due process standard to govern the military justice system. And once that precedent was out there, any due process argument in the military justice system that fails to account for Weiss is hideously flawed. Any counsel who goes into any military court and makes a due process challenge relying on Mathews v. Eldridge would (and should) be handed his or her lunch. Counsel are certainly free to preserve the issue of whether the Supremes should revisit Weiss, but no military court has the prerogative to disregard Weiss.

There may be other bases that support a conclusion that Article 120 is unconstitutional. As I originally wrote, I don't have any opinion as to whether it is or isn't. And I would love to see you write another article addressing the issue. As I've indicated elsewhere, I'm quite a fan of your article analyzing CAAF's Medina opinion (as opposed to Medina v. California). But I don't think the argument advanced in your May 2007 Army Lawyer article holds any water.

But, as always, I welcome you (or any of our other readers) to tell me why I'm wrong.

Dale Saran said...

Mr. Sullivan: I think you have not read the article deeply enough. I agree, it has flaws (Sorry Howard), but you seem to be missing the most important parts of the Article for the parts that are problematic.

You keep characterizing it as having one "argument". (NB - your last sentence). But, in my opinion, it has several arguments as to why the new 120 is unconstitutional. The requirement for the defense to prove the negative of an element is, in my opinion, the most important aspect of the article. Everything else beyond that is gratis.

Perhaps I'm not grasping the import of your argument as to why 120 is not unconstitutional on its face. (Or, to be more precise, the portions of 120 that shift the burden. There are portions that have nothing to do with requiring the defense to prove the negative of an element.)

I think there is also a more fundamental argument being missed here about rape and sexual assault statutes, generally, that have tried to eliminate "lack of consent" as an element. I offer this up to the group as a trial balloon: is there any offense - premised upon a perpetrator/actor and a victim - that does not become negated when consent is present? For example, I punch you without consent - it's assault. I punch you with consent and it's called boxing (or UFC). I take your car/book/umbrella/money w/o permission is larceny; with consent, it's just a loan. Even death, can be consented to (see Oregon's "Death with Dignity Act" or think about how many health care proxies or otherwise named documents we draft in legal assistance that allow someone or their loved one to refuse life-saving procedures).

So, to return to rape/120 - does it make any sense as a matter of human interaction and the history of law to try to find a way to fashion a criminal statute around the "requirement" (I'm arguing) of proving non-consent? I know it's not easy on the government to prove a negative, but the alternatives to me seem to endanger the idea of the presumption of innocence.

Finally, for those who are going to come back at me that there is no right to have sex with an unconscious person, being unconscious is just another form of non-consent. It's simply a sub-species. We don't disagree. My problem is when the statute only requires the government to prove that the gal was "substantially" incapable of declining participation - if she says "I blacked out/passed out and don't remember anything" the government has met its burden and dude is going to jail EVEN IF she actually consented and doesn't remember! He has to DISPROVE the government's case now by a preponderance and if he has prior "history" (let's suppose minor offenses under the UCMJ), his credibility will be slaughtered. And thus do innocent men get convicted.

Thanks for your time. (Disclaimer: I'm handling the Crotchett case).

Dwight Sullivan said...

Mr. Saran,

Thanks for your thoughtful post. I do want to clarify one point: I haven't expressed any position as to whether Article 120 is or isn't unconstitutional -- facially or as applied. And I haven't expressed such an opinion because I honestly don't have one. I'd have to study the issue in far greater depth than I've had the need to thus far to reach such a conclusion. My only point is that a Mathews v. Eldridge-based argument that Article 120 is unconstitutional is DOA. It may very well be that Article 120 is unconstitutional on some other basis lurking within MAJ Hoege's article or on the basis assert by Judge Beal. But at the moment, I'm an agnostic.

Semper Fi,

Dale Saran said...

Ah, then I gave more import to your post than there was. I understood the argument you made about Mathews, but as i said above, I believe that is the least of Article 120's problems, (and also the least of the arguments advanced in Major Hoege's article). The earlier portions are the most important.

Thanks and best to you.