CAAFlog Has Moved

As the Z-Man points out below, we are now at our new home http://www.caaflog.com/. The comments on this site are now closed so reset your Favorites and change your links. We can't make you go to the new site automatically so just click on the link. See you on CAAFlog.com.

New Home for CAAFlog

CAAFlog can now be found at: www.caaflog.com

CAAFlog's RSS feed can be found at: http://www.caaflog.com/?feed=rss2

You may not see the new site immediately (before Thursday morning, possibly midday) because the change takes some time to propagate across the internet.

CAAF News: which do you want first, the good news or the bad news?

The bad news: CAAF today issued an order changing the deadlines for filing supps. Starting on 1 September, supps will be due in conjunction with the petition where the petition is filed by counsel and 20 days after filing of the petition if filed by the accused. In those rare instances where appellate government counsel file an answer to the supp instead of a 10-day letter, the answer will be due in 20 days. I predict a bumper crop of CAAF petitions filed on 31 August.

The good news: Also starting on 1 September, CAAF will allow electronic filing of petitions for grant of review filed by counsel, supps, answers, and motions about supps and answers.

CAAF issues opinion on IAC claim

CAAF has released its opinion in United States v. Mazza, __ M.J. ___, No. 09-0032 (C.A.A.F. July 15, 2009). In a unanimous opinion by Judge Stucky, the court rejects an IAC claim, affirming NMCCA's ruling in the case.

More later.

British Forces Face Same Challenges

As we here in the States are debating the use of courts-martial for detainees from Gitmo, courts-martial for detainee mistreatment and killings, and what to do about "enhanced interrogation" techniques and those that used them, the Brits are facing similar issues. As reported in many outlets, including here and here, the British military has opened an inquiry into the beating death of an Iraqi prisoner (Baha Mousa) in 2003. According to reports the man died of beatings while in custody and one British soldier has already been court-martialed for the incident.

Other issues of national security versus fact finding are arising in the investigation, see report here, with the British MoD refusing to turn over some information to the Inquiry.

An interesting footnote to the story, " The Ministry of Defence has already agreed to pay a total of £3million in compensation to Mr Mousa's family and other detainees who were abused."

Upgrades

Readers-

In the way of an introduction, I'm a young Marine Judge Advocate brought aboard to help with some technological upgrades (discussed here and here), in my personal capacity of course. The switch to the new servers should happen soon - this week, with luck - and will allow CAAFlog to present the full spectrum of commentary, analysis, and information in one place. It also looks pretty good, though some would say my sense of style leaves something to be desired.

We're working to ensure a minimal loss of content, but a guy like me really embraces the "avoid zero defects" mentality. Posts and comments will transfer (already have), and everything else will remain accessible (we hope, and anything not available in other places will be duplicated). Email is unchanged. The RSS url might change, so subscribers please stay alert.

All said, the technology is just window dressing for the posts and the comments. At the transition there I will solicit feedback on the changes. Be brutal.

June Army Lawyer online

The June issue of the Army Lawyer is now available online here. Almost half the issue is devoted to Army DAD own MAJ Grace M. W. Gallagher's article, Don't Panic! Rehearings and DuBays Are Not the End of the World, Army Law., June 2009, at 1.

Also of potential interest to military justice wonks is Douglas A. Dribben's article, Damage to Rental Cars, Army Law., June 2009, at 43.

The end is near

As I mentioned last week, we will soon be moving our operations over to caaflog.com. My understanding is that all of our previous blog posts will still be accessible, but all of the documents that are currently on caaflog.com will disappear. We're planning to take just a few of those docs over to our new site. So if you want a copy of any document that's on caaflog.com now, please download it in the next 48 hours.

SG's time to reply to Rodriguez cert petition extended

The Supremes have extended the deadline for the SG to file a response to the Rodriguez cert petition, No. 08-1465, which we discussed here, until 4 August. The SG initially waived the United States' right to respond to the cert petition (as the SG routinely does in response to military justice cert petitions), but the Supremes called for a response, as we noted here.

This week in military justice -- 12 July 2009 edition

This week at the Supremes: There are no anticipated military justice developments at the Supremes this week.

This week at CAAF: CAAF has completed oral arguments for the term. By my count, seven cases argued this term have yet to be decided: Loving, Smead (which resulted in a post-argument order directing additional briefing), Matthews, Mazza, Bush, Ashby, and Schweitzer.

This week at the CCAs: None of the four CCAs' oral argument calendars lists an argument for this week.

Unpacking McCracken

First let's start with the easy and obvious point about the McCracken opinion that CAAF issued on Friday: all five judges agreed that NMCCA's resolution of the case was erroneous. Let's look at what NMCCA did.

Sgt McCracken was charged with a number of offenses including rape and adultery. The members found him not guilty of rape, but guilty of indecent assault as an LIO and guilty of adultery (plus a drunk and disorderly conviction). NMCCA concluded that the government hadn't proven beyond a reasonable doubt that Sgt McCracken had committed indecent assault. The panel then split 2-1 on the consequences of that decision. The NMCCA panel's majority affirmed a finding of guilty to indecent acts instead. Senior Judge Couch in dissent maintained that the majority erred by doing so because the theory upon which the majority affirmed a finding to indecent acts hadn't been presented to the members.

Sgt McCracken was carrying on a relationship while deployed in Iraq with a corporal who was married to an undeployed Marine. Until the night that led to the charges against Sgt McCracken, the relationship hadn't included intercourse. The married corporal testified that on that night, the two engaged in consensual "heavy petting" in Sgt McCracken's rack followed by Sgt McCracken taking off her bra against her wishes and then inserting his penis into her vagina against her wishes. Two other male Marines were in the room while all this was going on. Sgt McCracken denied that any nonconsensual activity took place. One of Sgt McCracken's roommates, who understandably considered the events that occurred in his room highly inconsiderate, reported it the following day.

In light of the consensual past relationship and the absence of any evidence that the married corporal reasonably manifested a lack of consent, NMCCA set aside the finding of guilty to indecent assault. United States v. McCracken, No. NMCCA 200600484, slip op. at 9 (N-M. Ct. Crim. App. Jan. 29, 2008). The NMCCA majority then observed:

We do, however, find that the evidence is legally and factually sufficient to support a finding of guilty to the lesser included offense of indecent acts with another. The appellant's sexual interactions with Cpl M, a married Marine in his squadron, while in his BEQ room in the presence of his roommates, and which were witnessed by them, were indecent. Prejudice to good order and discipline was evident when Cpl Labounty hurled an alarm clock at the couple from his rack across the room when he finally became fed-up with their antics.

Id., slip op. at 9-10 (internal citations omitted).

Here are the main points of contention in CAAF's decision.

1. WHY is NMCCA's opinion erroneous?

A three-judge majority of CAAF concluded that NMCCA erred because, as a matter of law, "under the circumstances of this case, open and notorious indecent acts under Article 134 . . . was neither expressly nor inherently a lesser included offense of the charged offense of rape under Article 120 . . . ." United States v. McCracken, __ M.J. ___, No. 08-0440/MC, slip op. at 2 (C.A.A.F. July 10, 2009). The majority explained that NMCCA "affirmed on the ground that McCracken's conduct was open and notorious, which was not the factual basis upon which members were instructed" concerning an indecent acts LIO. Id., slip op. at 3. In his separate opinion, Judge Stucky flatly concludes that indecent acts isn't an LIO of rape. Judge Baker also concludes that the indecent acts conviction must be set aside, because NMCCA affirmed the indecent acts conviction "on the ground that Appellant's conduct was open and notorious" and there's no way to know whether the members would have voted to convict Sgt McCracken on that basis. I may be misreading the majority's opinion or Judge Baker's opinion or both, but to me it appears that they reverse NMCCA and set aside the indecent acts conviction on the same ground.

2. What is the right remedy for NMCCA's error?

This issue seems to be the most clearly resolved. Sgt McCracken was originally sentenced to confinement for one year, forfeiture of all pay and allowances, a BCD, and reduction to E-1. Long after McCracken's entire period of confinement had elapsed, the NMCCA majority reassessed his sentence after reducing the indecent assault conviction to an indecent acts conviction and affirmed a sentence of confinement for six months, a BCD, and reduction to E-1. After setting aside the indecent acts conviction, CAAF was left with McCracken's convictions for adultery and drunk and disorderly. The CAAF majority concluded that setting aside the indecent acts conviction had "dramatically change[d] the penalty landscape in this case," thus requiring a sentence rehearing. Judge Baker didn't address the remedy, thus apparently agreeing with the majority. Judge Stucky summarily indicated that "[w]ith regard to the remedy, rather than order a sentence rehearing, I would remand to the United States Navy-Marine Corps Court of Criminal Appeals for sentence reassessment."

3. Can one offense be a lesser-included offense of another offense based on their inherent relationship rather than on their elements?

Judge Stucky's opinion is the only one of the three to expressly address this issue. Here's how it arises. In the first sentence of the majority opinion, in an example of the BLUF format of opinion writing (which I love), Judge Erdmann writes, "we conclude as a matter of law that under the circumstances of this case, open and notorious indecent acts under Article 134 . . . was neither expressly nor inherently a lesser included offense of the charged offense of rape . . . ." McCracken, slip op. at 2 (emphasis added). This language doesn't directly indicate that one offense can be considered an LIO of another offense due to their inherent relationship, but it does seem to suggest, by negative implication, an endorsement of that concept. In his dissent, Judge Stucky sharply rejects that concept, observing that "[m]ore than fifteen years ago, this Court abandoned the 'inherent relationship' and 'fairly embraced' tests for lesser included offenses in favor of a statutory elements test." Citing the Supreme Court's opinion in Schmuck v. United States, 489 U.S. 705 (1989), Judge Stucky observed, "One offense is not a lesser included offense of another 'unless the elements of the lesser offense are a subset of the elements of the charged offense.' Schmuck, 489 U.S. at 716." Because indecent acts is an Article 134 offense and the terminal element of a 134 offense is not an element of a 120 offense, Judge Stucky concludes that the former can't be an LIO of the latter. In his separate concurrence, Judge Baker poses four questions, two of which implicate this point from Judge Stucky's separate opinion:

(2) Whether the elements test articulated in Schmuck v. United States, 489 U.S. 705, 716 (1989), precludes the President from delineating certain Article 134, UCMJ, offenses as lesser included offenses of enumerated offenses absent a statutory change to the enumerated offense;

(3) Whether the due process principles advanced in Schmuck can, as a matter of law, be satisfied through mechanisms of fair notice other than the elements test.

The majority in McCracken observed that such questions "are reserved for another day." McCracken, slip op. at 4 n.2. That day is coming soon. On 1 July, CAAF granted review of this issue:

WHETHER APPELLANT'S CONVICTION FOR INDECENT ACTS WITH ANOTHER MUST BE SET ASIDE BECAUSE THE MILITARY JUDGE ISSUED ERRONEOUS AND MISLEADING INSTRUCTIONS SUPPORTING INDECENT ACTS AS AN AVAILABLE LESSER-INCLUDED OFFENSE TO THE ORIGINAL RAPE CHARGE AND THE RESULTING CONVICTION UNDER CHARGE I AND ITS SPECIFICATION AMOUNTED TO A FATAL VARIANCE.

United States v. Jones, __ M.J. ___, No. 09-0271/AF (C.A.A.F. July 1, 2009) (order).

Despite the majority's "reserv[ing] judgment" language in footnote 2, Judge Baker's concurrence suggests that "[i]t may well be that the majority opinion currently resolves each of [four questions he raises] by implication." In addition to the two questions noted above, Judge Baker asks:

(1) Whether or not the offenses expressly listed by the President as violations of Article 134, UCMJ, such as indecent acts, that are identified in the Manual for Courts-Martial, United States as a lesser included offense to a particular enumerated offense can satisfy the requirements of Article 79 . . . as a 'necessarily included' lesser offense'[];

. . . .

(4) What appellate effect, if any, does an agreement by the parties at trial that an offense is a lesser included offense have on the greater offense being considered on appeal.

Judge Baker's concurrence asks four questions, but it raises another question in my mind: what does footnote 1 of Judge Baker's concurrence mean?

I must be misconstruing footnote 1. In his concurrence, Judge Baker writes, "we cannot know whether the members would have found the act in question indecent because it was 'open and notorious' based on all the facts and circumstances had they not found Appellant guilty of indecent assault." He then drops a footnote that begins, "Had the members rejected the greater offense of rape and indecent assault, they would necessarily have been left with private consensual sexual conduct between unmarried persons in the absence of the evidence offered by the defense." Huh? Since Sgt McCracken was found guilty of adultery, presumably apart from any evidence offered by the defense, the members knew that this was NOT conduct "between unmarried persons." NMCCA's opinion tells us that the corporal with whom Sgt McCracken engaged in sexual activity was married to a Marine sergeant. So what does this language mean? Also, is conduct that occurs in a barracks room inhabited by two other Marines "private"? I would say not -- I certainly wouldn't say that the members "necessarily" would find such conduct private. Finally, what does "in the absence of the evidence offered by the defense" mean? This case doesn't involve an argument that the military judge erroneously denied a motion for finding of not guilty. Why would we look at the evidence "in the absence of the evidence offered by the defense"? When the case went to the members, that evidence was before them as well.

As I said, I must be misreading Judge Baker's concurrence, since it doesn't seem possible that he could have been suggesting that the sexual conduct in this case involved unmarried Marines. Can someone please explain to me what I'm missing?

The majority's opinion strikes me as a very narrow decision answering the narrow granted issue: "WHETHER THE LOWER COURT ERRED BY AFFIRMING A LESSER-INCLUDED OFFENSE BASED ON A THEORY OF CRIMINALITY NOT PRESENTED BY THE GOVERNMENT AT TRIAL." I see Judge Stucky's point about a negative implication suggested by the majority's opinion, though the majority certainly does not indicate that it is making law on that issue, but rather eschews doing so in footnote 2. And I'm largely confused by Judge Baker's concurrence, which seems to decide the issue on the same basis as the majority opinion.

Fortunately Jones will revisit this area of the law early next term. That case should answer many of the questions that McCracken raises.

Bad press coverage

Here's a link to a Chicago Sun-Times article whose author (like its headline writer) seems to think that the Cox Commission is part of the U.S. military.

New commentator joins the CAAFlog herd

We're pleased to announce the addition of a new CAAFlog commentator: Zachary Spilman. Zachary, please introduce yourself to our readers.

CAAF and commissions

Senate Bill 1390 (available here), the Senate's version of the National Defense Authorization Act for Fiscal Year 2010, includes revisions of the Military Commissions Act to make the military commissions system more closely resemble the court-martial system. See id. at § 1031. The bill would amend the Military Commissions Act of 2006 to establish CAAF as the primary appellate review authority for the military commissions system. The bill kills off the Court of Military Commission Review, which currently consists of a mix of CCA and civilian judges, and removes the commission system from the D.C. Circuit's jurisdiction. Instead, the bill gives CAAF jurisdiction to review every commission conviction for legal error, factual sufficiency, and sentence appropriateness. The Supreme Court could then review CAAF's decision by writ of certiorari. Under the bill, 10 U.S.C. § 950c would provide that unless the accused waives appellate review, "in each case in which the final decision of a military commission under this chapter (as approved by the convening authority) includes a finding of guilty, the convening authority shall refer the case to the United States Court of Appeals for the Armed Forces."

10 U.S.C. § 950f would provide:

(a) Review by United States Court of Appeals for the Armed Forces- (1) Subject to the provisions of this subsection, the United States Court of Appeals for the Armed Forces shall have exclusive jurisdiction to determine the final validity of any judgment rendered by a military commission under this chapter.

(2) In any case referred to it pursuant to section 950c(a) of this title, the United States Court of Appeals for the Armed Forces may act only with respect to the findings and sentence as approved by the convening authority. It may affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved. In considering the record, it may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses.

(3) If the United States Court of Appeals for the Armed Forces sets aside the findings and sentence, it may, except where the setting aside is based on lack of sufficient evidence in the record to support the findings, order a rehearing. If it sets aside the findings and sentence and does not order a rehearing, it shall order that the charges be dismissed.

(b) Review by Supreme Court- The Supreme Court of the United States may review by writ of certiorari pursuant to section 1257 of title 28 the final judgment of the United States Court of Appeals for the Armed Forces in a determination under subsection (a).

Quick McCracken observation

Interestingly, the majority went the same way -- and for the same reason -- as Senior Judge Couch's dissent below. Senior Judge Couch, on whom the No Man bestowed "The Great" status, recently left NMCCA when he retired from the Marine Corps.

More later as I continue to explore the points of contention among CAAF's three opinions in McCracken.

New CAAF decision on CCA's authority to affirm an LIO on a theory not presented to the trier of fact at the court-martial

United States v. McCracken, __ M.J. ___, No. 08-0440/MC (C.A.A.F. July 10, 2009). Judge Erdmann writes for the majority. Judge Baker concurred in the result while Judge Stucky concurred in part and dissented in part.

The majority observed that NMCCA affirmed a finding of guilty to indecent acts based on a theory that the members weren't instructed on at trial. CAAF proceeded to quickly conclude that NMCCA erred by doing so, quoting United States v. Riley, 50 M.J. 410, 415 (C.A.A.F. 1999), for the proposition that an appellate court can't affirm an LIO on a theory not presented to the trier of fact. CAAF then set aside the sentence while authorizing a rehearing.

Judge Baker concurred in the result, noting that he "would decide this case based on the instructions given to the members by the military judge, rather than by breaking what is arguably new and unexplained ground in the law involving lesser included offenses." He observed that "the nature of the definition of indecent acts provided in the instruction in this case precluded the lower court from affirming the lesser included offense." Judge Baker then presented a list of legal questions that he suggests the majority decided by implication.

Judge Stucky also wrote separately, proclaiming that "indecent acts with another is simply not a lesser included offense of rape." Rather than remand for resentencing, he would return the case to NMCCA for reassessment of the sentence.

I'm still trying to understand all of the facets of the disagreements among the judges. The lines of demarcation between the majority opinion and Judge Baker's concurrence aren't readily apparent, though I think I understand the doctrinal distinction that Judge Stucky is making about how LIOs are to be determined. More later.

New CAAF opinion on detailing authority for defense counsel

United States v. Wiechmann, __ M.J. ___, No. 09-0082/MC (C.A.A.F. July 6, 2009). Chief Judge Effron writes for the majority, holding that "the convening authority erred in treating one of Appellant's defense counsel as not properly detailed," but concluding that the error was harmless. Judge Ryan concurred in the judgment.

After a captain with very little defense experience was detailed to represent a retirement-eligible lieutenant colonel, the Chief Defense Counsel of the Marine Corps detailed a highly respected Marine Reservist LtCol (Jon Shelburne) as a defense counsel in the case. The Reservist LtCol was on the East Coast and the case was being tried in Hawaii. The CA balked at providing funding for the Reservist's representation of the accused, contending that there was no authority for the Chief Defense Counsel of the Marine Corps to detail the Reservist to the case. When the Reservist sought a continuance of the Article 32 investigation, noting the funding problem, the CA responded that the Reservist "is not detailed as counsel and has no authority to act in this matter.” The Reservist subsequently showed up at the 32. The IO refused a defense request for a continuance, but allowed the Reservist to participate as defense counsel over the trial counsel's objection. When the two defense counsel tried to submit a PTA proposal to the CA, the CA refused to accept it, maintaining that the Reservist hadn't been properly detailed. The inexperienced active duty counsel then resubmitted the proposal without the Reservist's name on it, at which point the CA agreed to consider to PTA proposal, which the CA ultimately denied after refusing to meet with the Reservist.

The case was then referred to a court-martial. A military judge refused to allow the Reservist to participate in an 802 conference. Another military judge presided over the court-martial. He ruled that the Reservist had been properly detailed and that the Chief Defense Counsel of the Marine Corps had the authority to detail him. The military judge denied a UCI motion and a motion to reopen the Article 32 due to the limitations on the Reservist's ability to represent the accused at that point. While the motions were pending, the CA met with the Reservist concerning a PTA and ultimately the parties entered into a PTA.

During the plea inquiry, the military judge advised the accused that by entering into the PTA, he was giving up his right to challenge the denial of the motion for a new 32 and he was waiving any defect in the 32.

CAAF treated the military judge's ruling that the Reservist had been properly detailed as the law of the case. CAAF then ruled:

[T]he convening authority erred by restricting the role of Appellant's detailed defense counsel during the pretrial proceedings, including the proceedings concerning the Article 32 investigation and pretrial agreement negotiations. In so doing, the convening authority improperly interfered with the attorney-client relationship established at the time of LtCol Shelburne's initial detail as Appellant's defense counsel. These actions violated Appellant's rights under Article 27, UCMJ.

CAAF also concluded that "the Government's actions infringed Appellant's right to the assistance of counsel under Article 27 during pretrial proceedings before both the convening authority and the military judge."

CAAF then assessed whether the accused had been prejudiced by the error. First, CAAF held that there was not a denial of counsel rising to the level of a structural error. The court therefore had to determine whether the error was harmless. The majority then assumed without deciding that the error constituted a Sixth Amendment violation and performed a constitutional harmlessness test, concluding that the error was harmless beyond a reasonable doubt.

Judge Ryan wrote separately. She concluded that the error in this case was statutory and was not a constitutional violation. She pointed out that at all relevant times, the accused was represented by a detailed defense counsel who was recognized by the government and there is no claim that that counsel's representation was deficient. She observed that "a military accused has neither the absolute right to detailed counsel of choice, nor the right to the assistance of two counsel." Judge Ryan concluded that "there is no basis for even suggesting that Appellant's Sixth Amendment rights were violated by the limitations placed on Lt. Col. Shelburne."

Volume 57 of Naval Law Review now online

Volume 57 of the Naval Law Review, the 2009 issue, is now available here. There are a couple of articles of interest to military justice wonks. I've started, but haven't yet finished, reading this fascinating article: Maj John M. Hackel, Planning for the "Strategic Case": A Proposal to Align the Handling of Marine Corps War Crimes Prosecutions with Counterinsurgency Doctrine, 57 Naval L. Rev. 239 (2009). The issue also includes this article advocating revisions to the MCM to allow greater use of videoteleconferencing in presenting testimony at courts-martial: Maj Nicole K. Hudspeth, Remote Testimony and Executive Order 13430: A Missed Opportunity, 57 Naval L. Rev. 285 (2009).

CAAF grants [revised]

On Monday. CAAF granted review in United States v. Burleson, No. 09-0258/NA, where the granted issue is:

WHETHER, AT THE TIME OF APPELLANT'S COURT-MARTIAL, ARTICLE 134 (INDECENT ASSAULT), UNIFORM CODE OF MILITARY JUSTICE (UCMJ), WAS AN OFFENSE NECESSARILY INCLUDED IN ARTICLE 120 (RAPE), UCMJ, IN LIGHT OF ARTICLE 79, UCMJ, UNITED STATES v. MILLER, 67 M.J 385 (C.A.A.F. 2009), AND MANUAL FOR COURTS-MARTIAL, UNITED STATES, PT. IV, PARAS. 45.b(1) AND 63 (2005 ED.).

NMCCA's unpublished decision in the case is available here. United States v. Burleson, No. NMCCA 200700143 (N-M. Ct. Crim. App. Oct. 21, 2008).

CAAF also specified an issue in the previously-certified case of United States v. Bradley, No. 09-5002/NA, which we discussed here. The newly specified issue is "WHETHER APPELLEE WAIVED THE ISSUE OF THE DISQUALIFICATION OF THE TRIAL COUNSEL BY HIS UNCONDITIONAL GUILTY PLEAS." NMCCA's unpublished decision in the case is available here. United States v. Bradley, No. NMCCA 200501089 (N-M. Ct. Crim. App. Nov. 25, 2008).

CAAF to hear oral argument on new Article 120's constitutionality on 21 September

Today's CAAF daily journal update included an order dealing with the timing of CAAF's review of a recent NMCCA decision rejecting a challenge to the new Article 120's constitutionality.

For purposes of this post, I'm assuming that when the order refers to "Appellee," it's referring to the government. See C.A.A.F. R. 8(c). If that understanding is wrong, someone please let me know.

In the Neal case, the military judge held dismissed an aggravated sexual contact charge, concluding that the new Article 120 unconstitutionally shifts the burden of proof on an element of the offense (consent) onto the accused. The government appealed under Article 62. In an en banc decision, NMCCA reversed. United States v. Neal, 67 M.J. 675 (N-M. Ct. Crim. App. 2009) (en banc). The Judge Advocate General of the Navy then certified the case to CAAF for review, as we discussed here, making this one of the rare cases that a JAG certifies to CAAF even though the government prevailed at the CCA.

Both the Appellee (which I'm assuming is the government as represented by Code 46) and the Air Force's appellate government division (JAJG) moved for expedited consideration. The Appellee also moved to stay the court-martial proceedings in the case.

On Monday, CAAF denied the motion to stay proceedings while leaving the door open to revisiting that issue upon a further demonstration of good cause. CAAF also denied the motions for expedited review. Finally, CAAF set the case for oral argument at 0930 on 21 September 2009.

New Capital Court-Martial

Third Infantry Division and Fort Stewart CG, Maj. Gen. Anthony Cucolo, referred charges yesterday against Sgt. Joseph Bozicevich (3rd ID) for the alleged murders of Staff Sgt. Darris Dawson and Sgt. Wesley Durbin, fellow Third Infantry Division NCOs. See this reprint of a Fort Stewart, GA press release and WaPo (AP) story here. The charges were referred capitally, according to the press release. See our prior coverage of the Art. 32 and other proceedings here and here. The reports showed that Sgt Boz. is represented by Charles Gittins.

Marine Corps Times cover story on the Foster case

Yesterday we noted that the Senate Armed Services Committee has asked the DOD IG to look into the issue of appellate delay in the Department of the Navy. The Foster case figured prominently in the committee report's discussion of the topic.

As we've previously discussed, Foster was confined for nine years for raping his wife until the Navy-Marine Corps Court of Criminal Appeals finally decided his case and held that the evidence was factually insufficient to prove beyond a reasonable doubt that he raped his wife. United States v. Foster, No. NMCCA 200101955 (N-M. Ct. Crim. App. Feb. 17, 2009). The court also set aside the other findings of guilty in the case and authorized his retrial on those charges. The Marine Corps subsequently decided not to retry him.

Today, this week's Marine Corps Times arrived at Casa CAAFlog, featuring a cover story on the Foster case. Don Lamothe, Road to Redemption, Marine Corps Times, July 13, 2009, at 22. The article includes some good news and some not-so-good news. In the good news department, Foster has been promoted to staff sergeant, has received about $275,000 in back pay (minus $90,000 in taxes), has gotten married, and will get to stay in the Marine Corps until he is eligible to retire as at least a staff sergeant. In the not-so-good news department, SSgt Foster hasn't received the allowances he would have received had he not been convicted and confined and might not receive them at all, can't be considered for promotion to gunnery sergeant yet--though he might have been eligible to compete for promotion to E-8 by now had he not been convicted and confined--hasn't yet received all of the uniforms he's required to have, and is growing impatient and critical. The article quotes Foster as saying that while his isn't "bashing all Marines here, . . . I'm just disappointed with my unit and the way they've taken care of me."

The article also reports that Foster "said he has been warned not to speak out publicly about his situation without permission, with several MobCom officers telling him it could be considered a challenge to authority and lead to court-martial." MOBCOM's spokesman says that "Foster hasn't been warned not to speak with the media but ordered to use Marine public affairs when doing to to ensure the release of a 'full and accurate message.'"

Cox Commission hearing web cast available

NIMJ has posted links to the web cast of the Cox Commission's 16 June public hearing here.

To quote David Bowie, ch-ch-ch-changes

As CAAFlog approaches its third anniversary, we find ourselves about to outgrow our existing digital footprint.

Serendipitously, just as that is about to happen, we received an offer to move all of our operations to a new host that could accommodate both our blog and our website, which makes it possible for us to post content that we can then link to.

Obviously the No Man understands far more about the possibilities for improved "functionality" than this unfrozen caveman lawyer could ever understand. Perhaps the No Man will supplement this post with some of the details.

But here's what you need to know for now. In about a week, all of the material on our caaflog.com website may disappear. I'm planning to move only a small amount of the material that's there now to the new website. So if you want anything that's on caaflog.com, please download it now because it may no longer exist by the end of next week.

[No Man Tech Update: While we may lose some of the documents, we will move all the posts over to a new site. We'll keep the blogger site up in case you have old links to posts (actually that's more of an ego thing for us, as various news stories have linked to CAAFlog posts). Your old bookmark will take you to the new site--so hypochondriacs out there need not worry about extra mouse clicks. We suggest you update your bookmark and RSS feeds once you get to the new site. Our email addresses will remain the same, so feel free to email us with comments about the new site, or how much you liked the old one.]

SASC wants to sic DOD IG on DON's appellate delay problem

Here's some fascinating language from the Senate Armed Services Committee's report on the National Defense Authorization Act for Fiscal Year 2010, S. 1390:

Inspector General review of post-trial processes for court-martial record preparation and appellate review within the Department of the Navy

The committee believes that action is long overdue to analyze and correct longstanding problems with the post-trial processes for preparation of records of courts-martial and for appellate review of court-martial convictions within the Department of the Navy. The United States Court of Appeals for the Armed Forces (C.A.A.F.) in the case of Toohey v. United States, 60 M.J. 100 (C.A.A.F. 2004), established standards for assessing whether convicted service members had been denied due process under the Fifth Amendment to the Constitution as a result of denial of reasonable appellate processing of their cases. Since then, a succession of Navy and Marine Corps cases, including, but not limited to, United States v. Jones, 61 M.J. 80 (C.A.A.F. 2005); United States v. Allison, 63 M.J. 365 (C.A.A.F. 2006); United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006); United States v. Dearing, 63 M.J. 478 (C.A.A.F. 2006); and, most recently, the unpublished case of United States v. Foster have addressed extremely lengthy delays in appellate review. In the Foster case, the conviction of a Marine was set aside because his conviction for rape "could not withstand the test for legal and factual sufficiency." This Marine had been confined for more than 9 years awaiting appellate review of his case. These cases demonstrate that cognizant legal authorities in the Department of the Navy have not taken necessary and appropriate steps to ensure that the resources, command attention, and necessary supervision have been devoted to the task of ensuring that the Navy and Marine Corps post-trial military justice system functions properly in all cases.

The committee recognizes that a series of Navy Judge Advocates General have attempted to overcome the systemic challenges associated with preparing, authenticating, tracking, and forwarding records of trial from numerous commands entrusted with court-martial convening authority and ensuring that the appellate review process comports with all legal standards. The committee is convinced, however, that intervention is needed by departmental civilian and military leaders to definitively resolve these chronic administrative problems and that action should be taken immediately to resolve these issues.

The committee directs the Inspector General of the Department of Defense, in consultation with the Secretary of the Navy, to review the systems, policies, and procedures currently in use to ensure timely and legally sufficient post-trial reviews of courts-martial within the Department of the Navy. The review shall discuss and summarize the history of problems experienced by the Navy and Marine Corps since 1990 in ensuring appropriate appellate review of general and special courts-martial and curative measures.

The principal focus of the review shall be to determine whether the resources dedicated to post-trial processes, the information and tracking systems in use, the applicable procedures and policies, and the monitoring and supervision of actions of participants in the military justice system aimed at ensuring compliance with the procedural requirements of law are adequate to accomplish the requirements for due process of law under the Uniform Code of Military Justice and applicable case law. This review should be provided to the Secretary of the Navy no later than January 1, 2010.

The committee further directs the Secretary of the Navy, in consultation with the Chief of Naval Operations and the Commandant of the Marine Corps, no later than March 1, 2010, to submit to the Committees on Armed Services of the Senate and the House of Representatives a written report on the findings and recommendations of the Department of Defense Inspector General and actions taken or planned to address these findings and recommendations. The Secretary shall include in the report his assessment of the adequacy of (1) the Department of the Navy's processes and resources dedicated to affording legally sufficient post-trial review of all Navy and Marine Corps cases, (2) the systems in place to track courts-martial cases, and (3) means to ensure accountability and compliance with the requirements of the Uniform Code of Military Justice and applicable case law.

S. Rep. No. 111-35 at 131-33 (2009).

AFCCA denies recon and recon en banc in Nerad

We've previously discussed (here and here) AFCCA's opinion in United States v. Nerad, 67 M.J. 748 (A.F. Ct. Crim. App. 2009), holding that the Courts of Criminal Appeals are authorized to set aside a legally and factually sufficient but unjust conviction. AFCCA today issue this order denying the Government's motions for reconsideration, reconsideration en banc, and oral argument. United States v. Nerad, No. ACM 36994 (A.F. Ct. Crim. App. July 6, 2009) (order).


[DISCLAIMER: I entered an appearance for the defense in the case last week.]

CAAF Rules Guide 13th

I'm working on the next (13th) edition of the Guide to the CAAF Rules of Practice and Procedure. Any suggestions for cases and other developments to include will be gratefully received, either by email to me or by post on CAAFlog.

This week in military justice -- 5 July 2009 edition [CORRECTED]

This week at the Supremes: No military justice developments are expected at the Supremes this week, though I wouldn't be surprised to see the SG seek and the Supremes grant an extension of the deadline for filing the SG's response that the Supremes called for in Rodriguez v. United States, No. 08-1465. (The response is due 15 July.)

This week at CAAF: CAAF has completed oral arguments for the term. The court will presumably decide all of its pending cases between now and 31 August. By my count, there are nine argued cases that have yet to be decided. It appears that CAAF will issue just 46 opinions of the court this term.

This week at the CCAs: Though it's not on AFCCA's online oral argument calendar, the court will hear oral argument in United States v. Seldes on Wednesday. Bill Cassara will argue for the appellant.

NIMJ files amicus brief supporting cert in Loving's FOIA appeal

As the No Man has previously observed, USDB death row inmate Dwight Loving has a cert petition pending at the Supremes seeking review of his FOIA appeal, which argues for his right to see the recommendations as to whether the President should approve his death sentence. Loving v. Dep't of Defense, No. 08-1476.

NIMJ has now filed an amicus brief supporting Loving's cert petition. The amicus brief is available here. Loving's cert petition is available here. The SG has received an extension to file an opposition until 31 July 2009.

Rodriguez trailers: have I missed something?

A prominent theory in the field of Biblical studies is the Q document--a theoretical lost document that was relied on in the drafting of the Gospels of Matthew and Luke. Is there a Q document out there somewhere that explains Tuesday's Rodriguez trailers?

In four orders issued on Tuesday, CAAF summarily denies petitions for review. (Another two orders issued the same day dismiss petitions under Rogriguez.) Judge Baker issues the same concurring opinion in all four of the cases denying review, rather than dismissing the petition. Judge Baker's concurrence suggests that the petition in each of the cases was filed on the first business day after the 60th day following constructive notice with the 60th day falling over a weekend or on a holiday. Of course, CAAF already addressed that scenario in its order in Angell: "As constructive service was effected on August 13, 2008, Appellant’s sixty-day period within which to file a petition for grant of review under Article 67(b)(2), Uniform Code of Military Justice, 10 U.S.C. § 867(b)(2) (2000), expired on October 14, 2008, the first working day following the expiration of the actual sixty days on Sunday, October 12, 2008. See C.A.A.F. R. 34(a)." United States v. Angell, __ M.J. ___, No. 09-0098/AR (C.A.A.F. May 20, 2009) (summary disposition).

In Tuesday's concurrences, Judge Baker writes, "[H]aving concluded that Article 67(c), UCMJ, prescribes a sixty-day mandatory and jurisdictional filing deadline, the majority now concludes that this mandatory and jurisdictional sixty days does not expire if the sixtieth day falls on a weekend or holiday." He continues, "This conclusion is not based on Article 67, UCMJ, which makes no reference to weekends, holidays, or other calendar accounting exceptions." Then comes the sentence that has me confused: "Rather, the majority finds the exception to the mandatory and jurisdictional filing deadline under Article 67, UCMJ, in the Rules of the Supreme Court of the United States."

SCOTUS Rule 30.1, which governs computation of time, provides that if a filing is due on a weekend, holiday, or day when the Supreme Court building is closed, it's timely if filed on the next business day. But I haven't seen a CAAF order on this issue that cites the Supreme Court's rule on computation of time. Has anyone else?

Judge Baker continues by endorsing the Supreme Court's computation of time rule, observing that "[i]f a court is closed on the day a pleading is due, then the court should accept the filing on the next available day if the law permits this course of action." But, he adds, such a rule of reason can't "amend statutory language that a majority of this Court found 'mandatory and jurisdictional'" in Rodriguez. Judge Baker concludes, "I wish the majority had been as eager to apply this Court's Rules of Practice and Procedure to inform and interpret Article 67, UCMJ, as it now seems willing to do with the Supreme Court's Rules."

It seems to me that there are four likely possibilities explaining this enigmatic reference to the Supreme Court's rules: (1) CAAF has released some order or opinion dealing with computation of time for Rodriguez purposes that I haven't seen yet; (2) CAAF intended to release an order or opinion dealing with computation of time for Rodriguez purposes, but for some reason its release has been delayed but four trailer orders beat it out the courthouse door; (3) CAAF originally planned to issue a detailed order explaining computation of time for Rodriguez purposes but decided to issue a one-sentence denial instead, but Judge Baker retained language in his concurrence addressing the original reasoning; or (4) Judge Baker is disclosing the rationale for the four orders as discussed within the Court. Are there other reasonable possibilities? Which possibility seems most likely? If it's possibility number 1, someone please let me know what I missed.

No Tweet Justice in Michigan

Message to COL Dixon, don't re-invent the wheel for the Benchbook, Michigan just issued a rule banning Tweet Justice. Here is a portion of Michigan Supreme Court Rule 2.511 issued Wednesday:

(2) The court shall instruct the jurors that until their jury service is concluded, they shall not: . . .
(d) use a computer, cellular phone, or other electronic device with communication capabilities, or any other method, to obtain or disclose information about the case when they are not in court. As used in this subsection, information about the case includes, but is not limited to, the following:
(i) information about a party, witness, attorney, or court officer;
(ii) news accounts of the case;
(iii) information collected through juror research on any topics raised or testimony offered by any witness;
(iv) information collected through juror research on any other topic the juror might think would be helpful in deciding the case.

h/t to NLJ

CAAF opinion alert

CAAF has issued its opinion in United States v. Paige, __ M.J. ___, No. 08-0805/MC (C.A.A.F. July 1, 2009).

Marine found not guilty of violating order not to talk to the media

The San Diego Union-Tribune reports that yesterday Marine Private Gary Mariarz was found not guilty of an orders violation for speaking to the media. David Brahms was his civilian defense counsel. The members trial was held at Camp Pendleton. Greg Moran, Marine who talked to media acquitted, San Diego Union-Tribune, July 1, 2009.

Pvt Mariarz, who had been convicted at a previous court-martial of mishandling classified information, was charged with disobeying an order by speaking to a journalist from the San Diego Union-Tribune after allegedly being ordered, according to the article, "not to discuss the investigation into the security breach or classified materials with the news media."

As we discussed here, the military judge had ruled that the Union-Tribune reporter to whom Pvt Mariarz spoke could be called as a defense witness. But the defense ultimately elected not to do so.

h/t NBM3

Rodriguez and computation of time

It appears that CAAF ruled yesterday that if 60 days from service or constructive service of the CCA's opinion falls on a weekend or holiday, a petition is timely filed for jurisdictional purposes if it's filed on the next business day. We'll be looking for an order establishing that rule when the daily journal is updated to include yesterday's entries.

CAAF grant

CAAF granted review on the following issue today:

Whether Appellant's conviction for indecent acts with another must be set aside because the military judge issued erroneous and misleading instructions supporting indecent acts as an available lesser-included offense to the original rape charge and the resulting conviction under Charge I and its specification amounted to a fatal variance.

United States v. Jones, __ M.J. ___, No. 09-0271/AF (C.A.A.F. July 1, 2009) (order).

AFCCA's unpublished decision in the case is available here. United States v. Jones, No. ACM 36965 (A.F. Ct. Crim. App. Oct. 22, 2008).

ACCA rejects challenge to providence of drug possession plea

An accused intends to distribute all of his marijuana. He inadvertently leaves a baggie in his pocket after he has distributed the rest. Does his statement during the providence inquiry that he was unaware of his continued possession of the baggie's content invalidate his plea? No, rules ACCA in a published opinion. United States v. Gonzalez, __ M.J. ___, No. ARMY 20080111 (A. Ct. Crim. App. June 26, 2009). Chief Judge Beck wrote for a unanimous panel.

ACCA explains:

A person who knowingly possesses a substance and thereafter misplaces or forgets about it or through inadvertence fails to distribute all of what he intended is nonetheless guilty of knowing possession when that substance is thereafter found within the person's control. Subsequent forgetfulness or negligence in possession does not negate otherwise-knowing possession of a controlled substance under Article 112a.

Id., slip op. at 4.

ACCA recommends a change to the Benchbook to reflect that statement of the law: "We specifically disapprove any implication to the contrary in Dept of the Army Pam. 27-9, Legal Services -- Military Judges' Benchbook, paragraph 3-37-1, note 3 and encourage the drafters to revise the note." Id., slip op. at 4. n.4.

To me, the most surprising thing about the opinion is that "Elisa" is a guy's name.

Recent "Military" Justice (MEJA) - An Odd Twist on an "Old" Law

[UPDATE: I have now seen the full Indictment and none of the Counts require MEJA, they are eithery bribery or conspiracy to commit bribery with one exception (mail fraud, and I admit I have not done the research on the extra-territorrial application of the mail fraud based on the facts of the case). Bribery has its own extra-territorial component. But, as an academic matter I will leave the discussion below.]

For those that follow prosecutions of former or current servicmembers under MEJA, you will find this DOJ press release very interesting. DOJ's summary of the case said:

[An Army major and an Air Force master sergeant] pleaded guilty to various bribery, fraud and conspiracy charges relating to Department of Defense (DOD) contracts in Afghanistan, the Department of Justice announced today. [An Army sergeant] pleaded guilty to receiving stolen property, which was obtained through the bribery conspiracy. In addition, four DOD contractors and four affiliated contracting companies were indicted for their roles in paying bribes to the military officials and otherwise defrauding the United States. The pleas of the military officials were filed today in U.S. District Court in Chicago. A superseding indictment of the contractors and companies was filed yesterday in U.S. District Court in Chicago.

As the case shows, military members can be prosecuted in federal district court when they conspire with civilians. See MEJA, 18 USC 3261(d)(2) (permitting MEJA prosecutions when members commit "the offense with one or more other defendants, at least one of whom is not subject to" the UCMJ).

In these procurement fraud cases where all the contractors are DOD contractors, who is subject to the UCMJ for purposes of MEJA these days? I'd say that at a minimum, all DOD contractor employees working for contractors with contracts in Afghanistan are technically "subject to the UCMJ." Who in these procurement fraud cases isn't subject to the UCMJ? In this case it could have been the company had DOJ needed MEJA. Will this odd twist (a) force DOJ to avoid MEJA in charging or (b) force DOJ to go after a company as a defendant to ensure jurisdiction in other cases that require MEJA? I don't know that such a metric has been borne out yet, though you would think in 3 years it would have. I'll get back to everyone with some stats later this week.

Second thought--not be to overly conspiratorial, but can a DOD contractor can be prosecuted while they are still employed in support of a battlefield contract given the language of MEJA? MEJA (a statute) trumps the SecDef Memo on right of first refusal for UCMJ jurisdiction, so that's not an issue. Also, the lead in portion of subsection (d) discusses "member of the Armed Forces subject to . . .," whereas the exception in (d)(2) omits the "member of the Armed Forces" language. Also, the term member of the Armed Forces is used elsewhere to distinguish members from civilian DOD employees and contractors. So I may have resolved my own question. But, here is the full text of 18 USC 3261(d), you decide:

No prosecution may be commenced against a member of the Armed Forces subject to chapter 47 of title 10 (the Uniform Code of Military Justice) under this section unless—
(1) such member ceases to be subject to such chapter; or (2) an indictment or information charges that the member committed the offense with one or more other defendants, at least one of whom is not subject to such chapter.

Another Cox Commission preview

This article from Tuesday's Stars and Stripes reports on more possible recommendations by the Cox Commission.

Some thoughts about the CCAs' oral argument practice

It turns out that the data set isn't sufficiently rich to do meaningful inter-CCA analysis of oral argument practice. Disturbingly, one of the best sources of information about the CCAs' oral argument practice is our TWIMJ. But we've only been running that feature in a systematic way since 23 November 2008. Once we've been tracking the CCAs' oral argument practice through TWIMJ for a longer time, we may be able to make some meaningful statistical observations. Future analysis will also be aided by ACCA's move in late February 2009 to include summary dispositions on its web site. Analysis would be further aided if NMCCA would indicate on its opinions when the case was orally argued -- as ACCA seems to do and as AFCCA usually, but not invariably, does. And we'd be nearing military justice wonk heaven if NMCCA would follow the practice of every other CCA and every Article III court and make all of its opinions available online.

In the meantime, the scant available data suggest some questions even if they don't reveal answers. Are there differences in the way CCAs respond to oral argument requests from retained counsel versus oral argument requests from military or civil service counsel? We've noted that AFCCA decided two cases without ruling on oral argument requests this year -- one from military appellate defense counsel and one from a DOD-employed civilian counsel (me). On the other hand, three of the seven oral arguments AFCCA has heard this term are in cases where the request came from retained civilian counsel.

Perhaps it's also useful to ask what percentage of argued cases result in published opinions and what percentage of published cases were orally argued. Interestingly, in three of the four cases in which NMCCA has heard oral argument this term and has issued an opinion, the opinion was published. For AFCCA, that statistic is two out of six. With the limitations on the existing data set, it isn't apparent what the figure is going the other way -- i.e., how many of the 22 published CCA opinions issued thus far in calendar year 2009 arose from cases that were orally argued. (I know that seven were, but it's possible that the number is higher and perhaps even much higher.)

It also appears that a large percentage of cases in which the United States is seeking relief (i.e., Article 62 appeals and petitions for extraordinary relief in which the government is the petitioner) are orally argued. However, in one Article 62 appeal decided by the Air Force Court this year, the court denied a motion for oral argument before ultimately ruling for the government. (That means that AFCCA has denied at least three requests for oral argument this year while hearing a total of seven oral arguments.)

What is probably the most interesting statistic isn't available from the available data and won't be available even as that data set fills out over time: in what percentage of cases do the various CCAs deny requests for oral argument and are there any statistically significant factors that correlate with such denied requests?

Looking for apparent correlations between oral argument and outcome will have to await the development of a much larger data set.

In the meantime, can anyone provide us with anecdotal evidence of why ACCA will hear almost three times as many oral arguments during the first half of this year compared to NMCCA, even though those two courts' dockets are roughly the same size? Here's an interesting statistic -- NMCCA has heard oral argument in 2009 in just three Article 66 appeals. (The other two cases in which it's heard oral argument were Article 62 appeals.) Has it denied requests for oral argument in Article 66 appeals? Or are counsel almost never asking? Another interesting stat in thinking about the difference between ACCA's practice and NMCCA's practice: even though the number of cases that the two courts received for docketing last fiscal year are comparable (ACCA = 867; NMCCA = 852), the percentage of the appellate docket devoted to SPECIAL courts-martial is almost twice as great for NMCCA (76%) as for ACCA (39%). (For AFCCA, the incoming cases were split almost down the middle -- 159 GCMs and 156 SPCMs.) Does the higher percentage of GCMs on ACCA's docket help to explain the difference? Perhaps. Interestingly, of the five cases orally argued at NMCCA this year, all were GCMs. Of the seven cases orally argued at AFCCA this year, five were GCMs. Obviously it would also be useful to know the breakdown of contested cases versus guilty pleas on the Big Three CCAs' dockets.

So lots of questions, no answers.

This week in military justice

This week at the Supremes: The Supremes are done with their military justice work for the term. The fate of the three pending military cert petitions -- Wuterich v. United States, No. 08-1133; Rodriguez v. United States, No. 08-1465; and Stephens v. United States, No. 08-1514 -- will probably be decided at the 29 September 2009 conference and certainly not before then. [Familiar disclaimer: I'm counsel of record for the petitioner in both Wuterich and Stephens.)

This week at CAAF: CAAF is done with oral arguments for the term.

This week at the CCAs: ACCA will hear three oral arguments tomorrow. First up is United States v. Pettibone, No. ARMY 20070485, where the assignment of error being argued is: "THE EVIDENCE IS LEGALLY AND FACTUALLY INSUFFICIENT TO SUPPORT THE FINDINGS OF GUILTY FOR ASSAULT WITH A DANGEROUS WEAPON IN THE SPECIFICATION OF CHARGE I AND FOR MAIMING IN THE SPECIFICATION OF CHARGE II WHERE THE GOVERNMENT FAILED TO PROVE THAT APPELLANT DID NOT ACT IN SELF DEFENSE." ACCA will then hear argument in United States v. Markis, No. ARMY 20070580 (a civilian counsel case), where the assignments of error being argued are: "THE EVIDENCE IS LEGALLY AND FACTUALLY INSUFFICIENT TO SUSTAIN APPELLANT'S CONVICTION FOR RAPE"; "THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE IMPROPERLY EXCLUDED SGM RICHARDSON FROM THE PANEL FOR CAUSE"; and "THE MILITARY JUDGE VIOLATED M.R.E. 704 WHEN HE WOULD NOT ALLOW THE DEFENSE EXPERT, DR. CHRISTIAN MEISSNER, TO PRESENT AN EXPERT OPINION ON WHETHER SSG MARKIS WOULD BE SUBJECT TO HEIGHTENED SUGGESTIBILITY AND MANIPULATION AS A RESULT OF THE INTERROGATIONS HE UNDERWENT." Tomorrow afternoon, ACCA will hear oral argument in United States v. Clark, No. ARMY 20070957, on this assignment of error: "THE EVIDENCE IS LEGALLY AND FACTUALLY INSUFFICIENT TO SUSTAIN APPELLANT’S CONVICTION FOR RAPE."

CCAs' oral argument practice [CORRECTED]

When June ends, marking the calendar year's halfway point, ACCA will have heard 14 oral arguments in 2009. (This post originally counted 13 ACCA oral arguments. I had missed United States v. Gross, No. MISC ARMY 20081049.) AFCCA will have heard seven. NMCCA will have heard only five. And CGCCA will have heard only one.

Put CGCCA to the side -- it's sui generis. What explains the great disparity between the number of oral arguments heard by ACCA and those heard by the remaining two CCAs?

I know of at least one case this year in which AFCCA issued an opinion despite a pending oral argument request, thus effectively denying the request. Are AFCCA and/or NMCCA denying a large number of oral argument requests? Or are Army counsel asking for argument more often? Of the argued Army cases, in what percentage did the defense seek oral argument, in what percentage did the government seek oral argument, and in what percentage did the court sua sponte order oral argument?

CAAF opinion alert

CAAF has released its opinion in United States v. Chatfield, __ M.J. __, No. 08-0615/NA (C.A.A.F. June 26, 2009). The opinion is available here.

Audio galore

CAAF has posted audio of Wednesday's argument in United States v. Ashby, No. 08-0770/MC, here and has posted audio of Wednesday's argument in United States v. Schweitzer, No. 08-0746/MC, here.

NMCCA has posted audio of Thursday's uncommonly interesting en banc oral argument in United States v. Wuterich here. [Familiar disclaimer: I'm one of appellee's counsel in Wuterich, but we didn't participate in the oral argument. The argument involved government counsel and counsel for CBS.]

BREAKING NEWS: Government moves for recon, recon en banc, and oral argument in U.S. v. Nerad

We previously discussed AFCCA's holding in United States v. Nerad, __ M.J. ___, No. ACM 36994 (A.F. Ct. Crim. App. May 29, 2009), that it has the authority and discretion to invalidate a finding of guilty that was legally and factually sufficient. The Air Force Government Trial and Appellate Counsel Division today filed motions with AFCCA asking the court to reconsider that opinion, asking for reconsideration en banc, and asking for oral argument.

We're putting in a FOIA request for JAJG's filings. We'll post them when we get them.

Melendez-Diaz: Bad News For Armed Forces Drug labs

Today's 5-4 application of Crawford v. Washington is another shot of bad news for already embattled armed forces drug screening labs. See SCOTUSBlog coverage here and opinion here.

I think CAAF will need to re-look at the rule in United States v. Magyari, 63 M.J. 123, 125 (C.A.A.F. 2006). Here is how CAAF distinguished Magyari (admissible drug lab report on urine testing for drugs) from United States v. Harcrow, 66 M.J. 154 (C.A.A.F. 2008) (inadmissbile lab report on testing of drugs),

Our reasoning in Magyari that “[b]ecause the lab technicians were merely cataloging the results of routine tests, the technicians could not reasonably expect their data entries would ‘bear testimony’ against [a]ppellant at his court-martial” does not apply here.

While you could argue that CAAF's decision in Harcrow (with nearly identical facts to Melendez-Diaz) would make the Magyari facts fit within Melendez-Diaz, this passage from Melendez-Diaz was a shot across the bow (or possible up it) of Magyari and similar cases:

Respondent claims that there is a difference, for Confrontation Clause purposes, between testimony recounting historical events, which is "prone to distortion or manipulation," and the testimony at issue here, which is the "resul[t] of neutral, scientific testing." . . . Relatedly, respondent and the dissent argue that confrontation of forensic analysts would be of little value because "one would not reasonably expect a laboratory professional . . . to feel quite differently about the resultsof his scientific test by having to look at the defendant." . . . This argument is little more than an invitation to returnto our overruled decision in Roberts . . . which held that evidence with "particularized guarantees of trustworthiness" was admissible notwithstanding the Confrontation Clause.

We'll see what happens, though the harmless error analysis in Harcrow is interesting in light of SCOTUS not addressing the issue.

Rodney Dangerfield note: Justice Kennedy has caught on to the existence of the military justice system, see Dissent at 22, but apparently Justice Scalia has not--no cite to Harcrow anywhere (though in light of the Magyari precedent discussed infra., the omission may well have been intentional).

[WARNING: Non-military justice post] SCOTUS October Term, 2008

I've been enjoying immensely Slate's Supreme Court Breakfast Table discussion by Walter Dellinger, Linda Greenhouse, and Dahlia Lithwick.

Navy announces new JAG flag nominations

Navy Rear Adm. James W. Houck has been nominated for appointment to the rank of vice admiral and assignment as judge advocate general of the Navy, Washington, D.C. Houck is currently serving as deputy judge advocate general of the Navy/commander, Naval Legal Service Command, Washington, D.C.

Navy Captain Nanette M. Derenzi has been nominated for appointment as deputy judge advocate general of the Navy and appointment to the rank of rear admiral. Derenzi is currently serving as staff judge advocate, U.S. Southern Command, Miami, Fla.

I've known CAPT DeRenzi for about two decades and couldn't be more thrilled. This is great for her, but even better for the Navy JAG Corps.

CAAF halts appellate proceedings in Akbar

CAAF yesterday ordered ACCA's proceedings in the capital case of United States v. Akbar stayed as CAAF considers a petition for extraordinary relief. See Akbar v. Army Court of Criminal Appeals, __ M.J. ___, No. 09-8026/AR (C.A.A.F. June 23, 2009) (order); Akbar v. United States, __ M.J. ___, No. 09-8025/AR (C.A.A.F. June 23, 2009) (order). We've posted CAAF's orders here. The underlying issue on the petition for extraordinary relief deals with whether the United States and ACCA erred in denying litigation resources to Akbar's appellate defense counsel. The government was ordered to show cause by 6 July why CAAF shouldn't order the requested relief.

Cox Commission sneak peek

According to this report in Wednesday's Stars and Stripes, the Cox Commission will recommend a UCMJ amendment to criminalize animal cruelty. Kent Harris, Panel suggests adding animal cruelty to UCMJ, Stars & Stripes, June 24, 2009. (Obviously the article gets some things wrong, like appearing to confuse the Cox Commission with NIMJ. The article also muddles the distinction between the UCMJ and presidentially enumerated Article 134 offenses, meaning that its suggestion that the Cox Commission will recommend a UCMJ amendment as the vehicle for prohibiting animal cruelty may be inaccurate.)

NMCCA issues unpublished opinion in Moreno

NMCCA today issued a lengthy unpublished opinion affirming Cpl Moreno's conviction and dishonorable discharge (the max authorized sentence under CAAF's opinion) on remand. United States v. Moreno, No. NMCCA 200100715 (N-M. Ct. Crim. App. June 23, 2009). We've posted the opinion here.

NMCCA's Ross opinion

Yesterday, we discussed CAAF's grant of a Walters/Seider issue in United States v. Ross. We have now received a copy of NMCCA's opinion in the case, which we've posted here. United States v. Ross, No. NMCCA 200800313 (N-M. Ct. Crim. App. Dec. 4, 2008) (per curiam).

This case effectively refutes some sniping in the comments section suggesting that the CCAs haven't been sufficiently attentive to Walters/Seider issues. This case was originally submitted on the merits to NMCCA, which specified the Walters/Seider issue.

New CAAF grant

CAAF granted review today on the following issue: "Whether the military judge abused her discretion in denying the defense motion to suppress all evidence from Appellant's home." United States v. Cowgill, __ M.J. ___, No. 09-0376/AF (C.A.A.F. June 23, 2009). AFCCA's unpublished decision in the case is available here. United States v. Cowgill, No. S31404 (A.F. Ct. Crim. App. June 23 2009). The AFCCA panel had split 2-1 on the validity of the search of SSgt Cowgill's home. Judge Helget's opinion for the court, joined by Judge Brand, concluded that the military judge didn't abuse her discretion by concluding that the civilian magistrate had a sufficient basis to issue the search warrant. The majority also concluded that even if there was inadequate probable cause, the fruits of the search would still be admissible under the Fourth Amendment exclusionary rule's good faith exception. Judge Jackson dissented from both of those holdings.

Sweet justice, yes; tweet justice, no

Yesterday's Stars and Stripes included this article reporting that Military Judges' Benchbook honcho COL Ted Dixon is drafting instructions for military judges to deliver to members panels concerning use of Internet resources and social networking sites while the case is pending. Kent Harris, Jury instructions to include rules on use of new media, Stars & Stripes, June 21, 2009. The article also reports that "[i]n the meantime, some judges are already using their own versions. In recent courts-martial in Italy, Army and Air Force judges have warned jurors not to talk about the trial with others using any form of communication."

h/t Phil Cave's Court-Martial Trial Practice blog

Two new Walters/Seider issues

When I was writing an extended post about remedies for Walters/Seider violations on Friday, I was unaware that on that very day, CAAF had granted review of two Walters/Seider issues arising from naval cases.

The granted issue in United States v. Ross, No. 09-0242/MC, is : "WHETHER, BY FINDING APPELLANT GUILTY OF THE CHARGE AND SPECIFICATION EXCEPT FOR THE WORDS 'ON DIVERS OCCASIONS,' THE MILITARY JUDGE RENDERED AMBIGUOUS FINDINGS NOT CAPABLE OF REVIEW UNDER ARTICLE 66, UCMJ, 10 U.S.C. § 866." I can't find NMCCA's opinion in the case anywhere online -- including in the formerly comprehensive but now useless Navy Knowledge Online. If anyone has a copy, please e-mail it to us at caaflog@caaflog.com. The wording of the issue makes clear that this is a judge-alone case, so it could present the remedy isuse we discussed regarding Wilson.

The granted issue in United States v. Trew, No. 09-0414/NA, is "WHETHER, IN LIGHT OF UNITED STATES v. WALTERS, 58 M.J. 391 (C.A.A.F. 2003) AND UNITED STATES v. SEIDER, 60 M.J. 36 (C.A.A.F. 2004), THE CHARGE AND SPECIFICATION MUST BE DISMISSED WITH PREJUDICE, BECAUSE THE LOWER COURT COULD NOT CONDUCT A PROPER APPELLATE REVIEW UNDER ARTICLE 66 AND DOUBLE JEOPARDY PREVENTS A REHEARING. SEE UNITED STATES v. WILSON __ M.J. ___ (C.A.A.F. 2009)." NMCCA's opinion in the case is published at 67 M.J. 603. We briefly discussed Trew here. Like Wilson, Trew was a judge-along court-martial. So if CAAF rules for the defense and CDR Battin is still on the bench, it could also provide CAAF with an opportunity to remand the case for clarification as a remedy for a Walters violation in a judge-alone case.

This week in military justice -- 21 June 2009 edition

This week at the Supremes: There are no expected military justice developments at the Supremes this week.

This week at CAAF: CAAF will hold oral argument in the twin Aviano cases of United States v. Ashby, No. 08-0770/MC, and United States v. Schweitzer, No. 08-0746/MC, on Wednesday. The many issues in the cases are synopsized here. The argument will be a melancholy event since Judge Everett was to have sat on the court for both cases. I don't know who will sit in his place; it could be another CAAF senior judge, acting Chief Judge Erdmann could ask Chief Justice Roberts to designate an Article III judge to sit with CAAF pursuant to Article 140(f), or the court could sit with just four judges, which would give an advantage to the government. (If just four judges sit, a tie vote affirms the lower court's judgment, which would mean that the government would need only two votes to prevail rather than three; essentially, the missing judge is spotted to the party that prevailed below, in these cases the government.)

This week at the CCAs: On Thursday, NMCCA will set en banc to hear the government's second Article 62 appeal in the case of United States v. Wuterich. The issues to be argued deal with the existence of a qualified reporter's privilege. The court will hear argument from counsel for the United States and for CBS. Counsel for SSgt Wuterich (of which I am one) haven't taken a position on the issues being argued and respectfully declined NMCCA's offer to let them participate in the argument. A synopsis of the case is available here. On Friday, AFCCA will hear oral argument in United States v. Streete. The issues to be argued are:

I. WHETHER EITHER THE MILITARY JUDGE OR APPELLANT'S TRIAL DEFENSE COUNSEL ALLOWED SPILLOVER TO UNDULY PREJUDICE APPELLANT'S RIGHT TO A FAIR TRIAL.

II. WHETHER APPELLANT'S SENTENCE THAT INCLUDED EIGHT YEARS CONFINEMENT AND A DISHONORABLE DISCHARGE IS HIGHLY EXCESSIVE.

III. WHETHER APPELLANT'S CONVICTION TO ADDITIONAL CHARGE II AND ITS SPECIFICATION, ALLEGING THE VIOLATION OF A "NO CONTACT" ORDER IS LEGALLY AND FACTUALLY SUFFICIENT.

Flyspecking Denedo

The current Supreme Court term began with the Court wrestling with the implications of a military justice statute it had previously overlooked. See Kennedy v. Louisiana, 129 S. Ct. 1 (2008). How well did the Supremes understand the military justice system in Denedo? The answer appears to be pretty well, but not perfectly.

Let's start with the majority opinion.

The first inaccuracy seems to arise from imprecise use of language rather than a lack of understanding of the system. Justice Kennedy's opinion for the Court explains, "In exchange for his plea the convening authority referred respondent's case to a special court-martial, §819, which, at the time, could not impose a sentence greater than six months' confinement." Denedo, slip op. at 2. Of course, even before the National Defense Authorization Act for Fiscal Year 2000 increased the length of confinement that a special court-martial could adjudge, special courts-martial could (and often did) impose sentences greater than six months' confinement -- in a case with an enlisted accused, they could impose a sentence of six months' confinement, plus a bad-conduct discharge, plus forfeiture of 2/3 pay per month for 6 months, plus reduction to pay grade E-1.

Second, in discussing Clinton v. Goldsmith, the Denedo majority opinion states: "Following [Major Goldsmith's] conviction, Congress enacted a statute authorizing the President to drop convicted officers from the rolls of the Armed Forces." Denedo, slip op. at 7. Actually, authorization to drop convicted officers from the rolls existed long before Maj Goldsmith's conviction; in fact, section 10 of the UCMJ as enacted in 1950 provided that "the President may at any time drop from the rolls of any armed force any officer who has been absent without authority from his place of duty for a period of three months or more, or who, having been found guilty by the civil authorities of any offense, is finally sentenced to confinement in a Federal or State penitentiary or correctional institution." 81 P.L. 506, § 10; 64 Stat. 107, 146. What the National Defense Authorization Act for Fiscal Year 1996, 110 Stat. 325, actually did was expand the grounds for dropping an officer from the rolls to include confinement for at least six months resulting from a court-martial conviction.

Third, the Denedo majority opinion rather obviously mischaracterizes what happened in Clinton v. Goldsmith. The Denedo majority opinion states, "Goldsmith sought extraordinary relief as authorized by the All Writs Act to enjoin the President from removing him from the rolls. The AFCCA denied relief, but the CAAF granted it." Denedo, slip op. at 7. In fact, Maj Goldsmith never petitioned AFCCA to enjoin the President from dropping him from the rolls. It's strange that the Denedo majority would make this mistake, because Justice Souter's opinion for the Court in Clinton v. Goldsmith emphasizes this point:

Goldsmith did not immediately contest the proposal to drop him, but rather petitioned the Air Force Court of Criminal Appeals for extraordinary relief under the All Writs Act, 28 U.S.C. § 1651(a), to redress the unrelated alleged interruption of his HIV medication during his incarceration. The Court of Criminal Appeals ruled that it lacked jurisdiction to act, and it was in Goldsmith's appeal from that determination that he took the first steps to raise the issue now before us, an entirely new claim that the Air Force's action to drop him from the rolls was unconstitutional.

526 U.S. 529, 532-33 (1999).

Fourth, the Denedo majority doesn't seem to understand the distinction between the court-martial and the convening authority. The majority quotes Article 67(c)'s language that CAAF has authority over "matters of law" connected to "the findings and sentence as approved by the convening authority . . . ." Denedo, slip op. at 10. Explaining how that provision is satisfied in this case, the majority opinion states, "Respondent's Sixth Amendment claim presents a 'matte[r] of law' with respect to the [guilty] findings . . . as approved by the [special court-martial] . . . ." Id. (all alterations except final ellipsis in original). So the Court substituted "as approved by the [special court-martial]" for "as approved by the convening authority." But, of course, it isn't the special court-martial that approves its own findings and sentence. Rather, it's the convening authority--in Denedo's case the Commanding Officer of USS JOHN F. KENNEDY--who approves the sentence (and who sometimes acts on the findings).

The dissent also got a couple of little things wrong. First, Chief Justice Roberts' dissenting opinion states, "The CCAs provide direct, record-based review of court-martial judgments, but they may only review cases referred by the judge advocate general, who in turn refers only those cases in which specific sentences are imposed. 10 U.S.C. §§866(b), (c)." Denedo dissent, slip op. at 3. But a Judge Advocate General doesn't refer only cases resulting in a specific sentence. Rather, a Judge Advocate General can -- and, as AFCCA's recent decision in United States v. Harvey demonstrates, sometimes does -- refer cases with lesser sentences to a CCA under the authority granted by Congress in Article 69(d)(1).

The other minor glitch in the dissent occurs in its discussion of DuBay hearings. The dissenting opinion states, "Instead, the CCAs will have to resort to the procedures invented by United States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967), under which a new convening authority will refer a case to a new court-martial, and task various military personnel who have no prior familiarity with the case to conduct an out-of-court evidentiary hearing on the merits of the petitioner's claim." Denedo dissent, slip op. at 10. First, of course, DuBay hearings aren't necessarily sent to a "new convening authority"; the case is often remanded to the same convening authority who convened the original court-martial. Nor is the case necessarily referred to a new court-martial. I can't think of a time when I've seen a new court-martial created to handle a DuBay hearing. Has anyone else? Finally, I have no idea what the dissent means by "an out-of-court evidentiary hearing." The whole point of a DuBay hearing is to have an in-court evidentiary hearing.

These errors are all minor; overall, the Court did a good job dealing with our rather idiosyncratic system. Still, it's striking how many even small errors are in a decision of an institution with the stature and brainpower of the Supreme Court.

SG's deadline extended in Wuterich

SCOTUS has extended the SG's deadline for filing a response to the Wuterich v. United States cert petition, No. 08-1133, until 5 August 2009. [Familiar disclaimer: I'm petitioner's counsel of record in Wuterich.]

Thinking about House, Denedo, and review of subjurisdictional contested convictions

The Navy JAG's recent ruling on the House petition for new trial was satisfying and probably just. It was also legally incorrect.

LT House was found guilty by a general court-martial of conduct unbecoming an officer for alleged sexual misconduct, as well as two other offenses. One of the convictions was set aside on Article 69 review, which LT House received because his sentence didn't qualify his case for an Article 66 appeal to the Navy-Marine Corps Court of Criminal Appeals. Several years after LT House was convicted, it was discovered that the Army Crime Lab examiner who conducted the testing in his case was falsifying reports. The Army Crime Lab's subsequent retesting of the evidence from LT House's case revealed that, contrary to the original DNA examiner's report and testimony, the semen on a condom didn't match LT House's DNA. Rather, LT House was actually excluded as a potential source of the semen. The retesting also disproved other DNA evidence upon which the prosecution relied at LT House's trial.

The threshold legal issue facing the Navy JAG when considering LT House's petition for new trial was whether such a petition may be granted even if it isn't filed within Article 73's two-year deadline. The Navy JAG ruled that the two-year deadline is subject to equitable tolling. The opinion states:

There is a dearth of military case law pertaining to equitable tolling; however, a recent example can be found in United States v. Luke, 63 M.J. 60 (C.A.A.F. 2006), another case involving deficiencies in Mr. Mills' DNA processing procedures. Although the court did not expressly invoke the doctrine of equitable tolling, the fact that the court acted upon a petition for new trial that was submitted outside the prescribed two-year statutory period indicates that the doctrine was applied.

United States v. House, slip op. at 3 n.2.

There are a few problems with this passage. First, Luke isn't a petition for new trial case. Rather, it was before CAAF on a petition granting review of NMCCA's affirmance of the case under Article 66. Contrary to the Navy JAG's opinion, CAAF didn't "act[]upon a petition for new trial" in Luke. Second, the opinion overlooks United States v. Van Tassel, 38 M.J. 91, 93 (C.M.A. 1993), which actually was a petition for new trial case where a court tolled Article 73's filing period. Third, and most importantly, the opinion fails to consider the Supreme Court's opinion in Bowles v. Russell, 551 U.S. 205 (2007), and CAAF's opinion in United States v. Rodriguez, 67 M.J. 110 (C.A.A.F. 2009).

In Bowles, the Supreme Court emphasized that "[w]e have long and repeatedly held that the time limits for filing a notice of appeal are jurisdictional in nature." 551 U.S. at 206. Bowles emphasized "the jurisdictional significance of the fact that a time limitation is set forth in a statute." Id. at 210. A court has no power to extend such a statutory deadline because a "Court has no authority to create equitable exceptions to jurisdictional requirements." Id. at 214.

But for Article 73, a Judge Advocate General has no authority to set aside a finding of guilty. On the contrary, Article 76 forbids a Judge Advocate General from setting aside a final finding of guilty except as provided by Article 73. Article 73's two-year statutory deadline would, therefore, appear to have the same jurisdictional effect on a Judge Advocate General's power to grant a petition for new trial as a statutory deadline has on an appellate court's jurisdiction to rule on an appeal. Yet the Navy JAG's ruling in House fails to even mention Bowles, much less wrestle with its implications for a Judge Advocate General's authority to equitably toll Article 73's two-year filing deadline.

Having found the power to equitably toll the petition for new trial filing deadline, the Navy JAG proceeded to use it. The opinion reasons that within the two-year petition for new trial period, the United States government suspended the same examiner who conducted the DNA testing in LT House's case because he permitted contamination in his testing process. House, slip op. at 3. (The examiner's even greater acts of misconduct appaerntly weren't discovered until a year and a half later, past the two-year deadline for LT House to file a petition for new trial.) Yet the U.S. government failed to advise LT House of the examiner's suspension. Id. The Navy JAG's opinion reasons:

Had the accused received timely Brady notice, he would have been able to submit a petition for new trial within the prescribed limitations. As the government was responsible for the delay in communicating the requisite information, the government should not be permitted to strictly enforce the two-year limitation. Accordingly, I find that the two-year statutory limitation on the filing period for a new trial was equitably tolled as of January 2004 [when Mr. Mills was initially suspended].

Id.

The Navy JAG proceeded to rule that the retesting of the DNA evidence provided a basis for invalidating LT House's conviction to the conduct unbecoming charge. He concluded, "In light of the significant differences between the new DNA evidence and the DNA evidence presented at trial, the arguments and theories that would have been available to the defense with knowledge of the new evidence, and all other pertinent facts, I conclude that this evidence would probably produce a substantially more favorable outcome for the accused." Id., slip op. at 5.

But that still left one finding of guilty intact -- conspiracy to make a false statement. The Navy JAG set aside that finding of guilty as well. But his rationale for doing so is unpersuasive. LT House was charged with and convicted of conspiring with two other Navy lieutenants to make false statements. Apparently the specification originally alleged particular acts in furtherance of the conspiracy. But the military judge found LT House guilty be exceptions and substitutions. The specification, as excepted and substituted, alleged that the three lieutenants "did on divers occasions . . . conspire . . . to . . . make a false statement, and in order to effect the object of the conspiracy, the said Lieutenant Harris, the said Lieutenant House, and the said Lieutenant Williams each made a false statement to NCIS." The Navy JAG threw out the conviction, reasoning:

The summarized record of trial reflects that the government presented evidence of a number of statements that the accused made to NCIS. It is not apparent from a plain reading of the specification as excepted and substituted, or by a review of the summarized record of trial, which statement the military judge concluded was false. Because the findings do not establish which statement provided the basis of the conviction, this specification is not reviewable and the findings cannot be affirmed. See U.S. v. Scheuer [sic], 62 M.J. 100 (C.A.A.F. 2005)(citations omitted).

House, slip op at 5.

This reasoning is flawed for at least two reasons. First, LT House's false statement to NCIS wasn't necessary to his conviction for this offense. Even if that allegation were excepted from the specification, he would still be guilty of the conspiracy due to either LT Harris's or LT Williams's act in furtherance of the conspiracy. So any uncertainty as to what statement of LT House's to NCIS was false would at most justify modifying the specification to omit that particular overt act, not reversing the finding of guilty altogether.

Second, Scheurer is entirely inapposite to consideration of a petition for new trial under Article 73. Scheurer is an application of the Walters/Seider line of cases. That line of cases is arises from limitations that Article 66(c) places on the CCAs' authority to affirm findings of guilty. In fact, Walters expressly noted that its holding "hinge[d] on [Article 66(c)'s] unique statutory function." United States v. Walters, 58 M.J. 391, 395 (C.A.A.F. 2003). It was based on "a critical limitation" to the CCAs' "unique power of review for factual sufficiency" under Article 66(c). Id. CAAF offered this summary of its holding in Walters: AFCCA "could not conduct a factual sufficiency review of Appellant's conviction because the findings of guilty and not guilty do not disclose the conduct upon which each of them was based." Id. at 397 (emphasis added). But LT House's case never qualified for Article 66(c) review because his sentence included neither a dismissal nor a year or more of confinement. (In fact, it didn't include any confinement at all.) Nor is a Judge Advocate General exercising any authority under Article 66(c) when ruling on a petition for new trial; rather, such petitions are governed by Article 73. And Article 73 does not include factual sufficiency review. Walters, Seider, and Scheurer are all, therefore, inapplicable to the House case and the invalidation of the conspiracy conviction under this line of cases is legally erroneous.

Of course, even if I'm right about these problems in the opinion, nothing will change. The Navy JAG's ruling isn't subject to any further review. So LT House will get to keep his satisfying, probably just, but legally erroneous victory.

But what of the next person in LT House's position? Before obtaining his victory from the Navy JAG, LT House had filed a previous petition for new trial that was denied as untimely, had sough reconsideration of that denial, had unsuccessfully petitioned NMCCA for extraordinary relief, had filed an unsuccessful writ appeal with CAAF, and had filed an ultimately denied cert petition with the Supreme Court. His counsel then instituted suit in the Court of Federal Claims, at which point the Navy JAG agreed to take another look at his case. Can we count on all factually innocent servicemembers who receive subjurisdictional sentences to have the knowledge, patience, and financial resources that LT House required to ultimately prevail in his case?

And what if the next time a factually innocent servicemember with a subjurisdictional sentence files an out-of-time petition for new trial with a Judge Advocate General due to misconduct at the Army Crime Lab, the Judge Advocate General applies Bowles v. Russell and rejects the petition as untimely?

Rather than requiring a Judge Advocate General to bend the law to produce a just result, we should provide a right of appeal for any servicemember who is found guilty by a GCM or SPCM despite having pleaded not guilty, regardless of the severity of the resulting sentence. If LT House had had such a right to appeal, then a clear framework would have existed to deal with the revelation of the Army Crime Lab examiner's misconduct and the subsequent exculpatory DNA retesting results.

Let's hypothesize that LT House had lost his initial appeal and CAAF had denied review before Mr. Mills's misconduct came to light. What then? United States v. Denedo provides the answer. If his case had once been within NMCCA's jurisdiction, then LT House could return to that court with the new information to seek a writ of error coram nobis. Such an instance would demonstrate the importance of allowing the military justice system's courts to protect their own integrity far more compellingly than did the facts of Denedo itself. As the Denedo majority observed:

The military justice system relies upon courts that must take all appropriate means, consistent with their statutory jurisdiction, to ensure the neutrality and integrity of their judgments. . . . [T]he jurisdiction and the responsibility of military courts to reexamine judgments in rare cases where a fundamental flaw is alleged and other judicial processes for correction are unavailable are consistent with the powers Congress has granted those courts under Article I and with the system Congress has designed.

The House case, where the accused was convicted due to false scientific evidence foisted into the military justice system by the U.S. government's own unscrupulous employee, truly involves a threat to the system's integrity.

The House case also demonstrates the callousness of the dissent's "You're in the Army now" quip. Chief Justice Roberts wrote for the four dissenting justices, "To be sure, the limited nature of relief available under Article 73 might lead one to question whether that is truly the only postconviction relief the UCMJ permits. 'You're in the Army now' is a sufficient answer to such concerns; the relief available looks positively extravagant in light of the prior history and tradition of military justice." But when LT House first enlisted in the Navy and later accepted a commission, he shouldn't have sacrificed his right to be free from the lifetime stigmatization of a factually erroneous federal conviction resulting from a U.S. government employee's falsified DNA report. Yet that might very well be the result in a subjurisdictional case such as LT House's were Article 73 to be applied consistently with Bowles v. Russell.

But those in LT House's position can have their right to be free from factually erroneous convictions protected by adding them to the class of servicemembers who may appeal their cases to the Courts of Criminal Appeals. The House case amply demonstrates the dangers of excluding such cases from appellate review.