Sunday, November 30, 2008
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.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.
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.
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 firstname.lastname@example.org.
Saturday, November 29, 2008
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.
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.
Friday, November 28, 2008
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.
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 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.
Thursday, November 27, 2008
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."
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).
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!
Wednesday, November 26, 2008
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.
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.
Tuesday, November 25, 2008
Monday, November 24, 2008
Sunday, November 23, 2008
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.
Saturday, November 22, 2008
Friday, November 21, 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 email@example.com.)
Thursday, November 20, 2008
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?
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.
Wednesday, November 19, 2008
The NMCCA web site now includes a subject-matter digest of the court's opinions, available here.
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.
Tuesday, November 18, 2008
Two days, two Wuterich appeals, see CAAF opinion coverage here, Sgt. Wuterich is his own legal docket.
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.
Monday, November 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.]
Sunday, November 16, 2008
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.
Saturday, November 15, 2008
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.
The issue also has an article on Care inquiries that will be the subject of a separate post.
Thursday, November 13, 2008
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:
Yikes, not exactly career enhancing. This is at least the third warning for the TC's uncontrolled laughter, see prior post here.
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?"
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.
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.)
Tuesday, November 11, 2008
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: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.
(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.
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.
Monday, November 10, 2008
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.
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).
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?
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.
Sunday, November 09, 2008
Saturday, November 08, 2008
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.
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.
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.
Friday, November 07, 2008
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.
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.United States v. Ranney, __ M.J. __, No. 08-0596/AF (C.A.A.F. Nov. 6, 2008).
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.
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.Id., slip op. at 6-7.
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.
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).
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.
Thursday, November 06, 2008
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.
Wednesday, November 05, 2008
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?
Tuesday, November 04, 2008
Monday, November 03, 2008
Sunday, November 02, 2008
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 . . . ."
Saturday, November 01, 2008
In the event of a conviction and death sentence, it certainly seems that there will be potential appellate issues in the case.