Senator Feinstein introduces bill to expand cert jurisdiction to cases in which CAAF denies review

Senator Diane Feinstein (D-Cal.), has introduced Senate Bill 357, which would expand the Supreme Courts' cert jurisdiction to reach cases in which CAAF has denied review. The bill's text isn't yet available. The bill is co-sponsored by Senators Feinfold (D-Wis.) and Specter (R-Penn.). Senator Feinstein issued this press release about the bill h./t nbm3

This is companion legislation to House Bill 569, which we previously discussed here, here, here, and here.

Military judge's ruling granting relief due to DOD's computer monitoring policy

Greetings from the Blue Ridge.

Here is a copy of the military judge's ruling in United States v. Behenna granting relief due to attorney-client confidence and work product privilege issues that arise from the DOD computer monitoring policy's application to military defense counsel. The military judge in the case, who I understand to be COL Theodore Dixon, ordered the Government to make a stand-alone unmonitored laptop available to defense counsel. h/t DP

And here's a copy of a motion dealing with this topic that we posted in December.

Fort Campbell ruling on monitoring of defense computers?

I spent the past couple of days at Camp Lejeune where the Regional Defense Counsel, LtCol John Baker, put together an outstanding CLE program. While I was there, I picked up some scuttlebutt that an Army military judge at Fort Campbell has issued a ruling dealing with the application of DOD's computer monitoring policy to military defense counsel. If anyone has a copy of that ruling, could you please throw it over our electronic transom? As always, you can reach us at caaflog@caaflog.com.

Army Judge Pohl Sticks it to Obama Adminstration [Updated]

Here is a link to breaking news from the WaPo that Army Colonel James Pohl has denied the Obama Administration's request to delay the military commission hearing in the case of Abd al-Rahim al-Nashiri, a Saudi citizen of Yemeni descent. Al-Nashiri is accused of, according to the Post, "planning the October 2000 attack on the USS Cole warship, an al-Qaeda strike that killed 17 service members and injured 50 others."

The article says Judge Pohl found the government's arguments for postponing the arraignment "unpersuasive." Leaving aside how an offense committed in 2000 can be tried in front of a military wartime tribunal, and all the other issues that will set off a $*%# storm in our Comments section, this was a brave move by Judge Pohl, so it warrants mention here.

Update: Apparently the defense did not object to the continuance, though Nashiri's defense counsel, according to the WaPo, here, asked that discovery continue. WaPo added this quote from the military judge on his ruling, "The Commission is unaware of how conducting an arraignment would preclude any option by the administration . . . Congress passed the military commissions act, which remains in effect. The Commission is bound by the law as it currently exists, not as it may change in the future."

The WAPo gave us this quote, that falls into the understatement of the year (it's early) category, "'It's somewhat of a shock," said Navy Cmdr. Stephen C. Reyes, Nashiri's military defense attorney."

Arraignment means jeopardy attaches, so the convening authority may, understandably, now be considering withdrawal and dismissal of charges or other options.

Exciting news: NIMJ announces Cox Commission II

NIMJ announced here that Senior Judge Walter T. Cox III of the Court of Appeals for the Armed Forces is convening a second commission to examine the military justice system. The first Cox Commission's report is available here. The second Cox Commission is co-sponsored by NIMJ and the ABA Criminal Justice Section's Military Justice Committee.

The announcement sets out the commission's purpose and plan:

The purpose of the Commission will be to examine the current operation of the military justice system and consider whether the Uniform Code of Military Justice is meeting the needs of the military services to provide an efficient and fair way to insure good order and discipline while also serving the criminal justice goals of a democratic society. The Commission will submit its report to the President, Congress, the Department of Defense, and its sponsoring organizations. . . .

The Commission will solicit ideas and suggestions from civilian and military attorneys, military commanders and non-commissioned officers, bar associations, law schools and groups with special interest in military matters and from the general public. Every effort will be made to facilitate public participation, including a website or blog and at least one public hearing.

The lineup for the second Cox Commission is star-studded. In addition to Judge Cox himself, the commissioner members are former 4th Circuit Chief Judge Billy Wilkins, Professor Steve Saltzburg of GWU, Professor Scott Silliman of Duke Law, former Judge Advocate General of the Navy RADM Donald J. Guter, former military commissions Chief Defense Counsel Will Gunn, GWU Law Professor and D.C. City Council Member Mary Cheh, retired Army Major General William L. Nash, and retired Army JAG Colonel Joyce Peters. The vital position of commission reporter is filled by two luminaries -- Professor Beth Hillman of UC Hastings Law (who was the first Cox Commission's reporter) and Professor Vic Hansen of New England Law.

We will follow the commission's work and will post a notice when the commission's public hearing is scheduled.

Grants galore

No, "Grants Galore" isn't a character in an Ian Fleming novel. Rather, it's a description of CAAF's daily journal for Friday, which was uploaded to the web this evening.

We've already noted Friday's grant in United States v. Sanders, No. 09-0013/AF. We learned today that CAAF also granted review with briefing in another two cases on Friday.

In United States v. Marshall, No. 08-0779/AR, the granted issue is: "WHETHER THE MILITARY JUDGE'S FINDING BY EXCEPTIONS AND SUBSTITUTIONS CREATED A MATERIAL FATAL VARIANCE IN CHARGE III AND ITS SPECIFICATION [ESCAPE FROM CUSTODY]."
ACCA's opinion in the case doesn't appear to be available online.

In United States v. Wiechmann, No. 09-0082/MC, the granted issue is: "WHETHER APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO COUNSEL WHEN THE CONVENING AUTHORITY AND STAFF JUDGE ADVOCATE FAILED TO RECOGNIZE ONE OF HIS TWO DETAILED DEFENSE COUNSEL." Wiechmann is an unusually interesting case involving a CA's and SJA's initial refusal to give effect to the detailing of a highly respected Marine Corps Reserve judge advocate -- LtCol Jon Shelburne -- as a second detailed defense counsel in the case. While the command ultimately accepted LtCol Shelburne as LtCol Wiechmann's counsel, on appeal the defense sought to overturn the conviction because LtCol Wiechmann had been deprived of LtCol Shelburne's representation during part of the case's pretrial development. While NMCCA found that "the CA's initial refusal to recognize LtCol Shelburne as detailed defense counsel burdened his ability to represent the appellant pretrial," the court concluded that these limitations "were not so severe as to constitute a severance of the attorney-client relationship, nor did they rise to such a level as to deny the appellant due process." NMCCA's unpublished opinion in the case is available on its web site here. United States v. Wiechmann, No. NMCCA 200700593 (N-M. Ct. Crim. App. Aug. 14, 2008). (One interesting note is that pursuant to a PTA, the CA suspended all punishment in the case for 12 months. So unless the suspension was vacated, LtCol Wiechmann never served any time and won't be dismissed. But the fortuity of receiving a suspended dismissal made his case eligible for an appeal under Article 66 and further review under Article 67.)

On Friday, CAAF also granted review of three additional cases and summarily disposed of them.

In the highly publicized case of Staff Sergeant John Diamond, No. 08-0365/AR, CAAF on Friday granted review of this issue: "WHETHER THE NAMED CO-CONSPIRATOR, MICHELLE THEER, PAID APPELLANT'S CIVILIAN DEFNESE [sic] COUNSEL RETAINER AND, IF SO, WHETHER THIS CONFLICT OF INTEREST WAS DISCLOSED TO THE COURT." CAAF summarily remanded the case to ACCA for consideration of the granted issue. ACCA's original opinion in the case is reported at 65 M.J. 876.

In United States v. McPherson, No. 08-0651/AR, CAAF granted review of this issue: "WHETHER AN HONORABLE DISCHARAGE [sic] FROM THE UNITED STATES ARMY RESERVE WITH ACCOMPANYING ORDERS, EFFECTIVE AFTER SENTENCING BUT PRIOR TO ACTION BY THE CONVENING AUTHORITY, HAS THE EFFECT OF REMITTING THE BAD-CONDUCT DISCHARGE ADJUDGED AT THE APPELLANT'S COURT-MARTIAL AND LATER APPROVED BY THE CONVENING AUTHORITY. SEE STEELE v. VAN RIPER, 50 M.J. 89 (C.A.A.F. 1999)." CAAF summarily returned the record of trial to ACCA for it to consider the granted issue. ACCA's original opinion doesn't appear to be available online.

Finally, in United States v. Arthur, No. 09-0001/AR, CAAF granted review of this issue: "WHETHER THE APPROVED FORFEITURE OF $1,000.00 PAY PER MONTH FOR FOUR MONTHS AT A SPECIAL COURT-MARTIAL WAS ILLEGAL UNDER ARTICLE 19, UCMJ, WHEN APPELLANT WAS REDUCED TO E-1 AS PART OF THE SENTENCE." CAAF disposed of the issue itself by reducing the affirmed forfeitures to $867.00 pay per month for four months. ACCA's opinion in the case doesn't appear to be available online.

Defense files opposition to the Government's motion to strike the Rodriguez recon petition

Today the defense filed this opposition to the Government's motion to strike the defense's reconsideration petition in United States v. Rodriguez, 67 M.J. 110 (C.A.A.F. 2009). Code 46 now has until next Monday to file a reply.

Denedo Argument Scheduled - Mar. 25

Here is a link to SCOTUSBlog's list of oral arguments for the next session. Denedo is scheduled for March 25, 2009. No other cases are scheduled that day.

This week in military justice -- 25 Jan 2009 edition

If anyone is aware of something scheduled to happen in the world of military justice this week, please let me know because I sure don't have anything on my radar screen.

This week appears to be the lull before an increase in activity in February, when CAAF will resume oral arguments next week, AFCCA will hold a Project Outreach oral argument next week, and the Respondent's merits brief in Denedo is due at SCOTUS the following week.

Of course, CAAF could issue opinions or grants this week. And some published CCA opinions could be released. But those developments won't be visible until they occur.

On a personal note, I'm on reserve duty for part of this week and I'll be in the mountains at the end of the week. While I now have technological capability to reach the Internet from anywhere (at least in theory), my blogging operational tempo will probably be reduced this week.

NMCCA argument webcast is a total success

The sound quality for NMCCA's inaugural oral argument webcast is outstanding -- better than for CAAF's oral arguments. Both counsel were superb and the bench was hot. Any lawyer who stumbles across the argument online will be impressed with the quality of the advocacy and the incisive questions from the judges. This is a very favorable development.

The Equal Justice for Our Military Act of 2009 picks up another co-sponsor [corrected]

Yesterday Barney Frank became the 13th co-sponsor of H.R. 569, the Equal Justice for Our Military Act of 2009.

BZ NMCCA!!!

At this very moment, I am sitting in my home, sipping an ice cold Coke as I type with one hand, and listening to Maj Elizabeth Harvey, USMC, arguing an Article 62 appeal to NMCCA earlier today. NMCCA has posted the audio on its web site. OORAH!

Here's a link to the oral argument page on NMCCA's web site. And here's a link to the audio of today's oral argument in Neal.

I hope that recording and posting oral arguments will now be a regular part of NMCCA's practice. And I hope that the other three CCAs follow NMCCA's lead.

Bravo Zulu, NMCCA!

CAAF grant

CAAF granted review today of this issue: "WHETHER THE MILITARY JUDGE ERRED BY ADMITTING IRRELEVANT AND HIGHLY PREJUDICIAL EVIDENCE IN VIOLATION OF R.C.M. 1001 AND MIL. R. EVID. 403." United States v. Sanders, __ M.J. ___, No. 09-0013/AF (C.A.A.F. Jan. 23, 2009). (Of course, that issue is a bit misleading. A military judge would necessarily err by admitting irrelevant and highly prejudicial evidence. The actual issue is whether the evidence was irrelevant and whether it was admitted in violation of R.C.M. 1001 and Military Rule of Evidence 403.)

The evidence at issue was a note found in Staff Sergeant Sanders' cell that was labeled his Last Will and Testament. It was addressed to Sanders' wife and apparently made some remarks critical of the military judge trying his case, the same military judge who later admitted the exhibit over defense objection and ultimately sentenced him. The Air Force Court held that the military judge properly admitted the exhibit. United States v. Sanders, No. ACM 36443, slip op. at 5-6 (A.F. Ct. Crim. App. July 15, 2008).

Another Day, Another Civilian Faces UCMJ Processes

Here is a link to a Petition for Writ of Habeas Corpus in the case of James Adolph v. Dr. Robert M. Gates (SecDef, for all those asleep for the last year). The case was filed today in the United States District Court for the District of Columbia and requests release of Mr. Adolph from military pre-trial confinement based on the unconstitutional application of the UCMJ to a civilian working with US forces in Kuwait.

[Disclaimer: I am one of the counsel for Mr. Adolph with lead counsel, CAAFlog commenter John O'Connor. Our colleagues Geoff Hengerer and Sarah Gordon joined us in writing the brief]

BIG news: U.S. not to proceed with charges against civilian contractor

The Las Vegas Sun is reporting that the military will not proceed with a court-martial against the civilian contractor, Justin Price, whose case we discussed here. Here's a link to the Las Vegas Sun article.

Last Friday, counsel for the civilian contractor -- including our very own No Man -- filed this habeas petition on his behalf in the U.S. District Court for the District of Columbia. According to the Sun, military officials in Iraq "are making arrangements for Price to return home." If the Sun is correct, then the petition, which is pending before Judge Sullivan, will become moot.

Four additional co-sponsors sign onto Equal Justice for Our Military Act of 2009

Four more members of the House of Representatives have signed on as co-sponsors of H.R. 569, the Equal Justice for Our Military Act of 2009, bringing the total number of co-sponsors to 12. h/t nbm3

Perjury and collateral estoppel

Can a military accused be tried for perjury and related offenses for alleging testifying falsely and soliciting a witness's false testimony at a court-martial that results in an acquittal? I would have thought that the obvious answer to that question is YES! While that is the answer that AFCCA reached today in its published opinion in United States v. Harris, __ M.J. ___, Misc. Dkt. No. 2008-03 (A.F. Ct. Crim. App. Jan. 22, 2009), the Court's scholarly opinion demonstrates that the issue isn't quite the slam dunk I thought it was.

This case is an Article 62 appeal, arising from a military judge's application of R.C.M. 905 to dismiss perjury, obstruction of justice, and related charges arising from the accused's first court-martial, at which he was acquitted of illegal drug use. The military judge reasoned that the members found the accused had not used the illegal drugs, so that was a settled matter that couldn't be contradicted at the second court-martial. AFCCA disagreed, adopting a narrower interpretation of R.C.M. 905 (and emphasizing that R.C.M. 905 itself is narrower than its equivalent provisions in earlier Manuals). AFCCA also reasoned that an acquittal doesn't necessarily indicate that the members concluded that the accused's testimony was truthful and doesn't constitute a finding of fact that the alleged misconduct didn't occur.

Like most Article 62 appeals, Harris also presents an interesting jurisdictional question. In a footnote, AFCCA observes, "Although [the United States] appealed the military judge's decision in its entirety, [the United States] argues in its brief that the military judge was correct in dismissing the charges of perjury and conspiracy to commit perjury. In light of our legal analysis, we grant [the United States'] appeal in its entirety." Harris, slip op. at 4 n.4. In other words, the government wins an issue that JAJG had abandoned. While AFCCA devoted more time to the main issue in the case than I would have thought it required, I think it devoted insufficient attention to this jurisdictional issue: in an Article 62 appeal, can a CCA grant relief that appellate government counsel doesn't seek? Congress has provided that "Appellate Government counsel shall represent the United States before the Court of Criminal Appeals . . . ." Article 70(b), UCMJ. And Article 62 provides that "the United States may appeal . . . An order or ruling of the military judge which terminates the proceedings with respect to a charge or specification." If the counsel for the United States abandoned a challenge to the dismissal of two of the charges, does a CCA still have jurisdiction to address the dismissal of those charges? Perhaps and perhaps not -- but I don't think the issue is as clear-cut as footnote 4 would make it appear. Perhaps we will soon see a CAAF opinion answering that interesting question.

Prosecution of civilian contractors publication

The No Man makes several appearances in this student publication: Ian W. Baldwin, Note, Comrades in Arms: Using the Uniform Code of Military Justice and the Military Extraterritorial Jurisdiction Act to Prosecute Civilian-Contractor Misconduct, 94 Iowa L. Rev. 287 (2008), which is available here.

Court Unanimously Rogers Up

Judge Baker, writing for a unanimous Court today, affirmed AFCCA in United States v. Rogers. While not the QP, as Judge Baker summarized, "The question presented is whether probable cause existed to issue the search authorization [for appellant's hair sample]."

First a critique. While the phrase "military magistrate," used extensively by Judge Baker, may be technically correct, I think it conveys a mis-impression of neutrality in the official who in this case issued the search authorization. Col Wayne McCoy, the 70th Operations Group commander was the "military magistrate," and, more than likely, the Special Court-Martial convening authority. See AFCCA opinion here (noting that the commander that authorized the search was "the commander of the appellant"). Not exactly my mental image of a magistrate. Enough with word choice.

Judge Baker holds that under a totality of the circumstances the military judge did not abuse his discretion in finding that the Commander had probable cause to issue the search authorization. Essentially Judge Baker wrote that the tie goes to the military judge when determining probable cause because the MJ could judge the veracity and credibility of the witnesses. Not ground breaking stuff, though I think it should put agents on notice not to exclude all the bad stuff from the affidavit when seeking search authorization.

An interesting note here is that the probable cause determination was based in large part on the veracity of SrA T and her eyewitness story about the accused ingesting cocaine. She also alleged an indecent assault and indecent exposure by Rogers. As Judge Baker noted in assessing the record as a whole established probable cause, "SrA T’s statements, as conveyed to multiple witnesses, are granular and credible, independent of what Agent McPherson did or did not say to Col McCoy . . . ." Yet, Rogers was acquitted of the other charges alleged by SrA T. I was struck that Judge Baker did not at least mention this fact or comment that the jury's verdict had nothing to do with the Commander's judgment.

Upcoming SCOTUS conference

We have previously discussed the cert petitions in Cabrera-Frattini v. United States, No. 08-830, and Ryan v. United States, No. 08-422. Cabrera-Frattini has been distributed for the 20 February conference, as has a petition for rehearing filed in Ryan after the Supremes denied cert in November.

Judge Stucky on the other side of the bench

I stumbled across something interesting today. The counsel who argued for the government in United States v. Lyons, 33 M.J. 88 (C.M.A. 1991), was Major Scott Stucky. It appears to be the only case he argued to CMA/CAAF. And, yes, he won.

New CAAF opinion

United States v. Rogers. Here's a link. More later.

AFCCA issues interesting published opinion on perjury and collateral estoppel

I'll have more on this later. Here's a link to the opinion. United States v. Harris, __ M.J. ___, No. Misc. Dkt. No. 2008-03 (A.F. Ct. Crim. App. Jan. 22, 2009).

Government moves to strike Rodriguez recon petition

Yesterday the Government asked CAAF to strike the defense's reconsideration petition in United States v. Rodriguez, 67 M.J. 110 (C.A.A.F. 2009). Here's a copy of that motion.

CAAF denies petition for extraordinary relief in Murphy

Today's CAAF daily journal update included the denial of a petition for extraordinary relief in the Murphy capital case. Murphy v. Maggs, __ M.J. ___, Misc. No. 09-8003/AR (C.A.A.F. Jan. 15, 2009). That ruling appears to clear the way for the Murphy case to return to the trial level for resentencing -- bringing the number of ongoing trial-level capital cases to at least five (Hennis, Quintanilla, Kreutzer, Walker, Murphy).

Text of Equal Justice for Our Military Act of 2009 now available

Here's a link to the text of Rep. Susan Davis's Equal Justice for Our Military Act of 2009, H.R. 569. The bill has been referred to the House Judiciary Committee.

Winter 2008 Military Law Review now online

The Winter issue of the Military Law Review is now online with two articles of interest to military justice practitioners:

Major William J. Nelson, A Right Way and a Wrong Way: Remedying Excessive Post-Trial Delay in Light of Tardif, Moreno, and Toohey, 198 Mil. L. Rev. 1 (2008). Major Nelson, a former appellate government counsel, blasts CAAF's post-trial delay cases as "unlawful" for authorizing relief without a showing of prejudice in violation of Article 59. He proposes regulatory changes to promote prompt post-trial review and to reduce any adverse effect of lengthy appellate leave on a servicemember, such as authorizing the issuance of an interim DD-214 and authorizing pre-CA's action clemency and parole consideration.

Major Tyesha E. Lowery, One "Get Out of Jail Free" Card: Should Probation Be an Authorized Courts-Martial Punishment?, 198 Mil. L. Rev. 165 (2008). Here is a former DAD counsel's argument for allowing military judges and court-martial panels to impose probation as a court-martial punishment. MAJ Lowery observes that while probation isn't an authorized court-martial punishment, it "is the most common criminal sentence adjudged in U.S. federal and state courts today." She weighs the pros and cons of such a system and offers two possible proposals to implement a probation system or its rough equivalent in the military.

ACCA's web site still disfunctional

The opinion and hearing calendar links on ACCA's web site continue to be broken. Does anyone know what's happened to the site and when it is expected to be back online?

CAAF releases opinion in Goodin

CAAF today released its opinion in United States v. Goodin, __ M.J. ___, No. 08-0355/AF (C.A.A.F. Jan. 21, 2009). Chief Judge Effron wrote for a unanimous court.

While CAAF granted review to examine the permissibility of admitting evidence of the accused's legal pornography use and sexual habits with his wife, CAAF chose not to resolve the granted issue. The court ruled instead that any error was harmless under the four-step prejudice test of United States v. Kerr, 51 M.J. 401(C.A.A.F. 1999). Accordingly, Goodin is unlikely to have any impact beyond the affirmance of the findings and sentence in SSgt Goodin's case.

Rodriguez recon reply

Here's a corrected link to the defense's reply to the Government's opposition to the reconsideration petition in United States v. Rodriguez, __ M.J. ___, No. 07-0900/MC (C.A.A.F. Jan. 6, 2009). The reply was filed last week. The reconsideration petition is now ripe for CAAF's ruling.

President Obama Orders Prosecutors to Request Continuance in Gitmo Trials

According to multiple wire service reports, the President, through SecDef Robert Gates, has ordered the prosecutors in two military commission cases underway at Guantanamo to request 120-day continuances so that the new administration can "review the military commissions process, generally, and the cases currently pending before military commissions, specifically."

It is not known whether the defendants will agree to such requests, and the military judges may decline to grant them.

UPDATE: Per NPR, the prosecution motion has been granted, apparently as to the trials underway and all pending trials.

Old military justice hand serving as Pardon Attorney

A while ago, the No Man noticed the surprisingly large percentage of presidential pardons that have arisen from court-martial convictions. We've discussed that phenomenon here and here.

Today we learned something we probably should have already known: the Pardon Attorney is former Navy-Marine Corps Trial Judiciary Deputy Chief Judge Ron Rodgers. (Well before serving as Deputy Chief Judge, he was also one of my instructors at Naval Justice School.) h/t mth.

We'll monitor whether Rodgers remains as Pardon Attorney in the Obama Administration. It would be particularly interesting having a former military judge in that position were Ronald Gray to lose his habeas case and ask the President to commute his death sentence.

Neal Katyal named as Principal Deputy Solicitor General

SCOTUSblog reports that Georgetown Law Professor Neal Katyal will be the Principal Deputy Solicitor General. Professor Katyal is well known to military justice practitioners as the result of both his stellar argument in Hamdan v. Rumsfeld, 548 U.S. 557 (2006), and his representation of the State of Louisiana when it sought rehearing in Kennedy v. Louisiana, 128 S. Ct. 264 (2008), rehearing denied, 129 S. Ct. 1 (2008). In that capacity, Professor Katyal filed a brief containing the wonderful line, "Military law is American law." In his new role, Professor Katyal will play a key part in deciding when to seek cert in military justice cases that the government loses at CAAF.

This week in military justice -- 18 January 2009 edition

This week at the Supreme Court: The Supreme Court is closed Monday and Tuesday. No military justice developments appear to be on the Court's horizon for this three-day work week.

This week at CAAF: CAAF will not be hearing arguments this week. The next CAAF argument is on 3 February. CAAF could issue additional opinions or grants during the abbreviated work-week.

This week at the CCAs: The big CCA news of the week is Friday's en banc oral argument on the new Article 120's constitutionality. The case is United States v. Neal. The issue set for argument is "WHETHER THE MILITARY JUDGE ERRED BY GRANTING THE DEFENSE MOTION TO DISMISS THE SOLE CHARGE ALLEGING A VIOLATION OF ARTICLE 120(e), UCMJ, AS UNCONSTITUTIONAL." NMCCA also told counsel to be ready to address the appropriate due process standard for a challenge to the new Article 120. ACCA's hearing calendar link, like its opinion links, remains down.

This week at the court-martial trial level: No significant court-martial trial level action is on my radar screen. Does anyone else know of significant litigation at the trial level this week?

Rodriguez recon irony #2

In the reply to the Government's opposition to the recon petition in Rodriguez, Rodriguez's counsel dismisses as mere "boilerplate" NMCCA's stamp on a copy of the opinion indicating that it was served on appellate defense counsel.

Black's Law Dictionary provides us this helpful description of the legal term, "boilerplate": "Ready-made or all-purpose language that will fit in a variety of documents. The term, first recorded in 1893, may be referred to steel plates affixed to boilers. But the modern sense comes from the use of the term to refer to copy set on printing plates (or molds to make the plates) and distributed in that form to newspapers. The copy could not be edited.)" Black's Law Dictionary 185 (8th ed. 2004).

Here's the irony: NMCCA's decision in the case dismissed the appellate defense counsel's claims that the cause of the portion of the post-trial delay attributable to the defense was an overloaded docket as, say it with me, mere "boilerplate." United States v. Rodriguez, No. NMCCA 9900997 (N-M. Ct. Crim. App. July 17, 2007). The opinion on of the court observed: "The appellant, without reference to any evidence, claims that the reason for the 602 day delay for filing his initial brief was the appellate defense counsels' caseloads were too heavy for them to work on the appellant's case in a timely fashion, thus causing them to file fourteen enlargements of time." The opinion rejected this claim, noting that "the appellant's claim is based upon his appellate defense counsels' assertions contained in their 'boilerplate' motions for enlargement of time, and not upon any sworn affidavits or other sources of evidence." Id., slip op. at 19 n.9. Senior Judge Vollenweider, joined by Judge Stolasz, authored a concurring opinion that noted, "where, as here, the record contains only boilerplate unsworn statements from appellate defense counsel that other caseload commitments prevent the timely filing of a brief in a particular case, the record does not contain facts from which to draw a rational determination that the Government failed in its duty." Id., slip op. at 24 (Vollenweider, S.J., concurring).

In the Rodriguez recon reply, it is now the defense seeking to reject NMCCA's stamped verbiage as mere "boilerplate." And GySgt Rodriguez's ability to obtain a ruling from CAAF on the originally granted issue of "WHETHER THE MILITARY JUDGE IMPROPERLY SHIFTED THE BURDEN OF PROOF TO APPELLANT IN ASKING APPELLANT TO EXPLAIN THE VICTIM'S MOTIVES IN ACCUSING HIM OF SEXUAL ABUSE," 66 M.J. 488, now depends on CAAF rejecting NMCCA's "boilerplate" just as NMCCA rejected the defense's "boilerplate."

Bill introduced to expand SCOTUS jurisdiction over military justice cases

House Bill 569 of the 111th Congress, sponsored by Representative Susan Davis (D-Cal.), would "amend titles 28 and 10, United States Code, to allow for certiorari review of certain cases denied relief or review by the United States Court of Appeals for the Armed Forces." Unfortunately the bill's text isn't yet available. Once the GPO catches up with the onslaught of early bills, it should appear here. h/t nbm3

The bill has been referred to the House Judiciary Committee. It has eight co-sponsors, including HASC Chairman Ike Skelton (D-Mo.).

During the last Congress, the full House of Representatives, by a two-thirds majority, suspended the rules to take up directly on the House floor Rep. Davis's Equal Justice for Our Military Act, which would have expanded the Supremes' cert jurisdiction to include Article 66 appeals where CAAF denies review and extraordinary relief rulings in which CAAF doesn't grant relief. The bill was passed by the full House on 27 September 2008. On the Senate side, the Judiciary Committee favorably reported an identical-in-all-but-name bill, but the bill died without full Senate action when Congress adjourned sine die.

As we noted here, during the last Congress then-DOD General Counsel William J. Haynes II opposed the legislation by a letter dated 6 February 2006. It will be interesting to see what position incoming DOD General Counsel Jeh Johnson takes on this year's version of the legislation.

Rodriguez's reply to Government's opp to recon petition [CORRECTED]

The defense has filed its reply to the Government's opposition to the reconsideration petition in United States v. Rodriguez, __ M.J. ___, No. 07-0900/MC (C.A.A.F. Jan. 6, 2009). The briefing is now complete and the issue is ripe for CAAF's decision.

I posted the wrong link when I tried to upload the Rodriguez reply onto CAAFlog.com. Unfortunately, I'll have to wait until Wednesday to post the correct link. Sorry!

Breaking News: US Contractor Facing UCMJ Action Files Habeas Petition

A U.S. citizen currently restricted to Ali Base in Iraq by U.S. military officials, and poised to become the first civilian U.S. citizen charged under the UCMJ in nearly four decades, has filed a habeas corpus petition demanding to be released and allowed to return home immediately. Las Vegas resident Justin M. Price requested a writ of habeas corpus or a writ of mandamus from the U.S. District Court for the District of Columbia today. The petition asserts that the United States does not have the constitutional or statutory authority to subject civilians to trial by court-martial. Here is a link to the petition.

[Disclaimer: I am one of the counsel for Mr. Price with CAAFlog commenter John O'Connor--not sur ehow I missed this, but the original post forgot to mention our colleague Geoff Hengerer, who is also on the brief, but not part of the CAAFlog commentariat]

CAAF holds that TC's propensity argument was improper but didn't create plain error

CAAF released its opinion in United States v. Burton, __ M.J. ___, No. 07-0848/AF (C.A.A.F. Jan. 15, 2009), on Thursday. Judge Ryan wrote for the majority, which held that the "[t]rial counsel's invitation to the panel to compare the charged offenses to find modus operandi or propensity was improper, but under the facts of this case the military judge’s failure to sua sponte instruct the panel on the use of propensity evidence or take other remedial action did not constitute plain error." Id., slip op. at 2.

The military judge's instructions included the standard spillover instruction. Id., slip op. at 4. "In the closing arguments that followed, the trial counsel noted the military judge's instruction that panel members could not use guilt of one offense as proof of guilt of another offense. However, trial counsel told the panel it could 'take these things and compare them for [Appellant's] propensity to commit these types of offenses.' He invited the panel to 'take both of [the victims'] stories and lay them next to each other and compare them and see what this particular person's M.O. is.'" Id. (alteration in original). The DC didn't object. Id., slip op. at 5.

CAAF held, "We agree with Appellant that trial counsel's closing argument was improper, but disagree that the error was plain and obvious such that the military judge was required to sua sponte give further instructions or take other remedial measures." Id. "The Government may not introduce similarities between a charged offense and prior conduct, whether charged or uncharged, to show modus operandi or propensity without using a specific exception within our rules of evidence, such as M.R.E. 404 or 413." Id., slip op. at 6.

CAAF disagreed with AFCCA's conclusion that the argument was proper under Military Rule of Evidence 413. CAAF explained, "The problem with the CCA’s holding is simple –- this is not an M.R.E. 413 case. The evidence on which trial counsel was commenting was primary proof of the charged offenses. No evidence was introduced as propensity evidence pursuant to M.R.E. 413, and none of the procedural safeguards required as a predicate to such introduction were followed." Id., slip op. at 7. "As the Government did not offer the evidence under M.R.E. 413, it did not follow the steps required by M.R.E. 413. Therefore, it may not a posteriori justify its closing argument based on what it might have done." Id.

But, CAAF concluded, it "was not plain and obvious under the facts of this case that the military judge should have sua sponte given a propensity instruction, as Appellant now contends." Id., slip op. at 8. CAAF explained: "In the context of the entire trial, including the distinct and clearly defined evidence against Appellant on similar yet separate offenses, the specific instructions to the panel, the fact that neither trial nor defense counsel offered M.R.E. 413 propensity evidence or requested a propensity instruction, and the fact that the comments of trial counsel were not so egregious as to provoke an objection by trial defense counsel, we do not believe that any error in trial counsel's argument rose to the level of plain error that would require the military judge to sua sponte instruct on the proper use of propensity evidence or take other remedial measures." Id., slip op. at 10-11.

Chief Judge Effron wrote separately. While agreeing with the majority that the trial counsel's propensity argument was erroneous, he contended that "the military judge was required to give an appropriate tailored instruction expressly addressing the subject of propensity." But, Chief Judge Effron concluded, the failure to give such an instruction wasn't prejudicial.

Judge Erdmann also agreed that the trial counsel's propensity argument was erroneous. But he dissented in part because he concluded that "the military judge committed plain error by failing to provide a propensity instruction to the members." Judge Erdmann then applied the prejudice test for constitutional errors and concluded that the error wasn't harmless beyond a reasonable doubt.

New published AFCCA opinion on how to charge paraphernalia possession

Today AFCCA released a published opinion in which it sua sponte addressed the issue of whether possession of drug paraphernalia may be tried as an Article 134 offense. United States v. Borunda, __ M.J. ___, No. ACM S31425 (A.F. Ct. Crim. App. Jan. 15, 2009). But here's the weird thing. The opinion's holding seems to contradict the very case on which it purports to rely.

Now I haven't been getting a lot of sleep lately. And, truth be told, I've had a couple of Yuenglings tonight. So the chance that I'm wrong is even greater than normal. If I am, please, please correct me. But here goes.

AFCCA writes: "In United States v. Caballero, 49 C.M.R. 594 (C.M.A. 975), our superior court set aside a possession of drug paraphernalia conviction that had been charged under Article 134, UCMJ. Our superior court's rationale was that it 'has been recognized and held that the possession of [drug] paraphernalia might otherwise be properly prosecuted as an Article 92[, UMCJ, 10 U.S.C. § 892] violation, where such an order or regulation exists,' and declined to extend the reach of Article 134, UCMJ to an offense that was proscribed by another article. Caballero, 49 C.M.R. at 597 (emphasis added)." Borunda, No. ACM S31425, slip op. at 3 (all alterations in original).

I've got a copy of CMA's decision in Caballero right in front of me. Let's take a look at the granted issue in Caballero: "Whether the specification of Charge II alleging wrongful possession of narcotic paraphernalia (syringe and needle), under Article 134, UCMJ, absent an appropriate regulation, does not allege an offense." Caballero, 49 C.M.R. at 594. Got that? "[A]bsent an appropriate regulation." The opinion then reemphasizes this point: "Reduced to its bare essentials, therefore, the granted issue calls upon this Court to determine whether the wrongful and unlawful possession of narcotic paraphernalia on-post, absent any regulation or general order, prohibiting that conduct so as to render any violation thereof an offense under Article 92, UCMJ, can be properly charged or alleged as an offense under clause 1 of Article 134." Id. at 595. So CMA is reiterating that it is deciding whether possession of drug paraphernalia can be charged under 134(1) where no regulation or general order prohibits the possession. And CMA held that no, it can't. CMA's supporting reasoning is lengthy. Along the way the court found that possession of paraphernalia that could be used for drug ingestion "does not itself constitute an act directly prejudicial to good order and discipline." Id. at 597. The court finally concluded: "Since this Court has long recognized and held that the possession of narcotic paraphernalia might otherwise be properly prosecuted as an Article 92 violation, where such an order or regulation exists, we find no demonstrated need to expand the reach of Article 134, beyond that which already exists, to cover an offense such as this." Id. The decretal paragraph then directed: "The decision of the United States Army Court of Military Review affirming the accused's possession of narcotic paraphernalia under Article 134 is accordingly reversed and Charge II is set aside." Id.

I'm not asking you to agree with all that -- heck, I don't agree with all that -- but just keep CMA's conclusion in mind while we work through AFCCA's Borunda opinion. Here's how AFCCA characterizes what we just read: "We read Caballero to mean that when a lawful general order or regulation proscribing the possession of drug paraphernalia exists, an order or regulation which by definition is punitive, the possession of drug paraphernalia, if charged, will only survive legal scrutiny as a violation of Article 92(1), UCMJ, and not as a violation of Article 134, UCMJ." Borunda, No. ACM S31425, slip op. at 3-4 (footnote omitted). To quote Judge Ryan, so far so good. But look what AFCCA says next: "Conversely, in the absence of a lawful general order or regulation, charging officials are at liberty to charge the possession of drug paraphernalia as a violation of Article 92(3), UCMJ, or Article 134, UCMJ." Id., slip op. at 4 (footnotes omitted). Now this may be the Yuengling talking, but WHAT? In Caballero, CMA directly held that in the absence of a lawful general order or regulation, possession of narcotic paraphernalia COULD NOT be charged under Article 134. 49 C.M.R. at 597. In fact, it went so far as to set aside an Article 134 conviction for possession of narcotic paraphernalia where no lawful general order or regulation existed. Id.

It might be that Senior Airman Borunda can properly be convicted under Article 134 for possessing paraphernalia. Unlike Private Caballero's on-base offenses, SrA Borunda's possession of paraphernalia off base and when accompanied by a civilian could justify an Article 134(2) conviction. And there might have been some development between 1975 and 2007, when SrA Borunda was convicted, that limits or extinguishes Caballero's precedential effect.

But here's the question for you, our reader: can the conclusion that the Air Force Court reached in Borunda be based on Caballero? My answer to that question is a resounding: No! Caballero holds just the opposite. Am I right or wrong?

CAAF summarily remands statute of limitations issue

Yesterday CAAF granted a statute of limitations issue in an Army case, specified a related IAC issue, and summarily kicked the case back to ACCA.

In United States v. Brehm, __ M.J. ___, No. 08-0703/AR (C.A.A.F. Jan. 14, 2009), CAAF granted review of "WHETHER IN LIGHT OF THE COURT'S RECENT RULING IN UNITED STATES v. LOPEZ DE VICTORIA, 66 M.J. 67 (C.A.A.F. 2008) SPECIFICATION 1 OF CHARGE I, INDECENT LIBERTIES WITH A CHILD, SHOULD BE DISMISSED AS BEING TIME BARRED UNDER THE STATUTE OF LIMITATIONS." CAAF also specified this IAC issue: "WHETHER THE TRIAL DEFENSE COUNSEL PROVIDED EFFECTIVE ASSISTANCE OF COUNSEL AS TO THE ISSUE OF WAIVER OF THE STATUTE OF LIMITATIONS REGARDING SPECIFICATION 1 OF CHARGE I, INDECENT LIBERTIES WITH A CHILD."

CAAF summarily set aside ACCA's decision regarding the affected spec and the sentence. CAAF then remanded the case for ACCA to conduct "further appellate inquiry on the granted and specified issues." CAAF ordered ACCA to "obtain an affidavit from the trial defense counsel relating to the specified issue. If the court, after reviewing the affidavit, determines that a fact-finding hearing is necessary, see United States v. Ginn, 47 M.J. 238 (C.A.A.F. 1997), that court shall order a hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967). Once the necessary information is obtained, the court will conduct its Article 66(c), UCMJ, review."

Now that's ironic

Take a look at the certificate of service on page 9 of the Government's opposition to the petition for reconsideration in United States v. Rodriguez, No. 07-0900/MC. It doesn't comply with CAAF Rule 39(g).

Rule 39(g) requires that the certificate of filing and service indicate "the specific manner of filing under Rule 36 and the specific manner of service under this rule." Ironically enough, the certificate of filing and service on the Government's opp doesn't indicate the specific manner of service on appellant's counsel.

CAAF orders additional briefing in Smead

On Monday, CAAF heard oral argument in United States v. Smead, No. 08-0376/MC. Yesterday, CAAF ordered additional briefing in the case. CAAF gave appellate defense counsel 15 days to file a supplemental brief addressing "WHETHER THE COURT OF CRIMINAL APPEALS ERRED IN HOLDING THAT THE CHARGE OF RAPE OF A CHILD, WITHDRAWN AND DISMISSED 'WITH PREJUDICE' AT APPELLANT'S FIRST COURT-MARTIAL, COULD BE REFILED PRIOR TO APPELLANT’S REHEARING." The Government then has 15 days to file its brief and the defense has another 5 days to file a reply.

CAAF grant on Mil. R. Evid. 509 issue

Today CAAF granted review of this issue in an Army case:

WHETHER THE UNITED STATES ARMY COURT OF CRIMINAL APPEALS ERRED IN HOLDING THAT MIL. R. EVID. 509 DOES NOT BAR THE GOVERNMENT FROM CALLING THE MILITARY JUDGE FROM A JUDGE-ALONE TRIAL TO TESTIFY AT A DUBAY HEARING AS TO HIS DELIBERATIVE PROCESS.

United States v. Matthews, __ M.J. ___, No. 08-0613/AR (C.A.A.F. Jan. 15, 2009). ACCA's opinion in the case is published at 66 M.J. 645.

Government opp to Rodriguez recon petition

The Government has filed its opposition to the recon petition in United States v. Rodriguez, __ M.J. ___, No. 07-0900/MC (C.A.A.F. Jan. 6, 2009). I've posted it here. But the copy I secured wasn't great, so it's a bit hard to read. If anyone wants to throw a better copy over our virtual transom (caaflog@caaflog.com), I'll replace it.

New CAAFlog Technical Gadget

You'll notice our posts now have category labels at the bottom. Until now it was an unused feature here on CAAFlog. In light of a suggestion by the ABA Blawg 100, we thought we'd add this feature. Now if you want to see all stories about a particular topic, just click on the label at the bottom of the story. It will take us a bit o' time to populate labels with old posts (we have over 1,250 of them). With a little work, they'll all eventually get tagged. All new posts will have labels---and we'll try to keep the categories to a minimum.

NIMJ to hold conference on military commission jurisprudence

NIMJ has asked me to post a link to the schedule for its 23 January conference on military commission jurisprudence to be held at AU's Washington College of Law. I'm happy to do so but, sorry F.T. Cat, Esq., despite your overly generous remarks, I'm not going to blog about commissions. :-)

December Army Lawyer online

The December issue of the Army Lawyer is now online. But here's a warning: it's the admin/civil law issue, featuring a forward with an amusing title drawn from a Scalia quotation: "Administrative Law Is Not for Sissies!" The issue also features a fun article by the Military Law Review's editor about malapropisms. MAJ Ann B. Ching, For All "Intensive" Purposes: A Primer on Malapropisms, Eggcorns, and Other Rogue Elements of the English Language, Army Law., Dec. 2008, at 66.

CAAF posts oral argument in Stephens

The oral argument in United States v. Stephens, No. 08-0589/AF, is now available here. (DISCLAIMER: I argued the case for the appellant.)

CAAF posts opinion in Brown

CAAF unanimously holds that sex can be an "advantage" for purposes of an extortion conviction. United States v. Brown, __ M.J. ___, No. 08-0261/AR (C.A.A.F. Jan. 14, 2009). Chief Judge Effron wrote the opinion of the court.

Army Trial Judiciary issues new-Article 120 Benchbook guidance

One of the many reasons to maintain the ability to post anonymously is that anonymous posters sometimes provide very helpful information. Here's an anonymous post from earlier today:

On 4 Dec the Chief Judge of the Army approved this definition for addition in the Army Bench Book for Art 120 Agg Sexual Assault and Abusive Sexual Contact.

("Substantially incapacitated") (and) ("Substantially incapable") mean(s) that level of mental impairment due to consumption of alcohol, drugs, or similar substance; while asleep or unconscious; or for other reasons; which rendered the alleged victim unable to appraise the nature of the sexual conduct at issue, unable to physically communicate unwillingness to engage in the sexual conduct at issue, or otherwise unable to make or communicate competent decisions.

SCOTUS dockets pro se IFP military cert petition

The Supreme Court has docketed another pro se IFP cert petition in a military justice case. Robertson v. United States, No. 08-8095. CAAF summarily granted and affirmed in the case. United States v. Robertson, 67 M.J. 14 (C.A.A.F. 2008) (summary disposition). ACCA's web site's opinion links are currently inoperative, so I don't yet know whether ACCA's opinion is online.

Charges Referred Against Final NCO in Baghdad Detainee Deaths, and other news [Updated]

The NYT is reporting, here, and Stars and Stripes reports, here, that charges were referred against Sgt. First Class Joseph P. Mayo in the shooting deaths of four Iraqi detainees outside Baghdad. Charges against two other NCOs have already been referred in the same incident, see CAAFlog reports here and here.

In other news it looks like the MEJA trial of Steven Green is underway in Kentucky, or at least pre-trial motions, see IHT report here. Unless it is quilting season, the case looks to be headed to trial on April 27, 2009 on capital charges of rape and murder for an incident in Mahmoudiya. IHT also makes this report on a ruling today:

U.S. District Judge Thomas B. Russell said Steven Dale Green, 22, willingly made such statements to FBI agents as "Guess I'm looking at spending the rest of my life in jail," and "You probably think I'm a monster," after his arrest June 30, 2006. Russell said the agents didn't question the former soldier with the 101st Airborne Division, or force him to talk, making the comments admissible in court. "There is no evidence that the FBI agents' actions were objectively coercive," Russell wrote to lawyers in a decision released Tuesday.

Update: I just checked the quilt show is scheduled for April 22-25, 2009 in Paducah this year. . . see quilt show link here. Nice scheduling move.

Reconsideration petition filed in Rodriguez

On Friday, the defense filed a petition seeking reconsideration in United States v. Rodriguez, __ M.J. ___, No. 07-0900/MC (C.A.A.F. Jan. 6, 2009). I've posted a copy here.

CAAF trims its oral argument calendar again

In a reflection of the small number of granted cases pending oral argument, CAAF trimmed its oral argument calendar again today, dropping the 9 February and 31 March oral argument dates as well as one in April.

9:30 Club moves to E Street

I wasted many a college night at the 9:30 Club when it was still at 930 F Street. But now the 9:30 Club describes 450 E Street. Starting today, CAAF will begin its oral arguments at 0930 rather than 0900.

Audio for United States v. Smead posted

The audio for today's oral argument in United States v. Smead, No. 08-0376/MC, is now available on CAAF's web site here. Audio for today's second case, United States v. Stephens, No. 08-0589/AF (which I argued for the appellant), isn't yet online.

This week in military justice -- 11 January 2009 edition

This week at the Supreme Court: In the wake of Friday's filing of the SG's merits brief in Denedo, we are unaware of any anticipated military justice developments at SCOTUS this week.

This week at CAAF: CAAF will hear two oral arguments tomorrow. The granted issue in United States v. Smead, No. 08-0376/MC, is: "WHETHER APPELLANT SUFFERED PREJUDICE, FOR PURPOSES OF ARTICLE 59(a), UCMJ, WHERE THE CHARGE OF RAPE OF A CHILD, WITHDRAWN AND DISMISSED 'WITH PREJUDICE' AT APPELLANT'S FIRST COURT-MARTIAL, WAS REINSTITUTED AT APPELLANT'S REHEARING." The granted in issue in United States v. Stephens, No. 08-0589/AF, is: "WHETHER THE MILITARY JUDGE ERRED BY ALLOWING THE FATHER OF THE ALLEGED VICTIM TO TESTIFY AS EVIDENCE IN AGGRAVATION, OVER DEFENSE OBJECTION, AS TO THE IMPACT ON THE ALLEGED VICTIM OF THE INVESTIGATION AND COURT-MARTIAL." (I'll be arguing for the appellant in Stephens.)

This week at the CCAs: On Thursday, Panel 3 of ACCA is scheduled to hear oral arugment in United States v. Littleton, No. ARMY 20080481. (I'm assuming the case name is Littleton. The link on ACCA's oral argument web page calles the case "US v. Bryan," but Bryan appears to be the appellant's first, not last, name.) The issues in Littleton are: "WHETHER APPELLANT WAS IMPROPERLY CHARGED AND FOUND GUILTY IN THE DISJUNCTIVE," and "WHETHER THE MILITARY JUDGE MADE VAGUE AND AMBIGUOUS FINDINGS AS TO THE CHARGE AND SPECIFICATIONS FOR VIOLATIONS OF ARTICLE 134, PRECLUDING APPELLATE REVIEW BY THIS COURT." I also see on ACCA's web page that it snuck in an oral argument last Friday but didn't appear to post notice of that until last Wednesday: United States v. Gross, No. MISC ARMY 20081049, a Government petition for extraordinary relief case, where the issue was whether "THE MILITARY JUDGE ACTED WITHOUT LEGAL AUTHORITY IN AWARDING FIFTY DAYS OF ARTICLE 13 CREDIT WHERE NO VIOLATION OF ARTICLE 13, UCMJ, OCCURRED. " (Presumably the actual issue in the case was whether a violation of Article 13--which prohibits pretrial punishment--did or didn't occur.)

I believe that on Tuesday, the United States Court of Military Commission Review will hear oral argument in United States v. Jawad. Normally I don't post about military commission matters, but there's overlap between the argument and the military appellate system because two of the judges on the panel hearing Jawad are also CCA judges: Chief Judge O'Toole of the Navy-Marine Corps Court and Senior Judge Francis of the Air Force Court, who is dual-hatted as the Court of Military Commission Review's deputy chief judge. The reason I write "I believe" that the oral argument will be on Tuesday is that, with the kind of lack of precision that's been demonstrated all too often by the military commission system, the Court of Military Commission Review's order granting oral argument provides that "[o]ral argument will take place at 10:00 a.m." at the Federal Circuit's courtroom, but doesn't indicate what date at 10 a.m. the argument will be heard. There appear to be a total of 12 CCA judges who are dual- hatted as CMCR judges. (NMCCA: O'Toole, Price, Feltham, Geiser; ACCA: Conn, Holden, Sullivan, Zolper; AFCCA: Francis, Brand, Heimann, Thompson). I write that there "appear" to be 12 dual-hatted CCA judges because the panel assignment list on the Court of Military Commission Review's web site lists those 12 while the "Judges Currently Serving on USCMCR" link on the court's web site lists only 6 of them. (DISCLAIMER: I was the military commission system's chief defense counsel for two years and have certain open and notorious biases concerning the system--which is one reason I normally don't post about military commission matters.)

This week at the court-martial trial level: Based on press reports, it appears that the court-martial of Sgt Ryan Weemer, USMC, is scheduled to start tomorrow. This is a companion case to United States v. Nazario, which was tried as a MEJA case in the United States District Court for the Central District of California and which resulted in a complete acquittal. During that trial, Sgt Weemer was one of two Marines jailed for contempt for refusing to testify. The related case of United States v. Sgt Jermaine Nelson was scheduled to begin last week, but was pushed back until 16 February because Judge Meeks granted a defense request for the appointment of an expert.

As always, if anyone is aware of any other significant military justice developments or has updates to anything we have noted, please let us know. You can reach us at caaflog@caaflog.com.

CAAF recap and SitRep

This was a very busy week not only for CAAF, but also for me. As a result, I never had time to post a recap of Conliffe after my evening of battling connectivity challenges. Sorry!

CAAF issued four opinions of the court this week: Thompson, Rodriguez, Conliffe, and Kuemmerle. That brings to 12 the number of opinions of the court issued this term. I believe that 14 argued cases remain undecided (Burton, Forney, Macomber, Loving, Goodin, Von Bergen, Brown (No. 08-0261/AR), McCracken, Gladue, Rogers, Clayton, Dean, Collier, Campos).

This past week, CAAF added one case to its argument calendar (Gardinier (25 Feb 09)). That brings the number of cases currently scheduled for oral argument to seven. Four granted cases remain unscheduled (Miller, Thomas, Paige, Weston). CAAF didn't grant review of any cases Monday through Wednesday. The daily journal for Thursday and Friday isn't yet available.

CAAF's Rodriguez decision from Tuesday was one of the most eagerly awaited opinions of the term within the CAAF bar. And the decision finally drew a jurisdictional line that CAAF couldn't cross: it ruled that CAAF may not entertain a petition for grant of review that is filed after the relevant Article 67(b) time period has expired. Chief Judge Effron and Judge Baker dissented.

Monday's Thompson per curiam was a brief opinion accepting a government concession concerning the impermissibility of a CCA reversing a finding and affirming a non-LIO in a contested case.

Juxtaposed against Thompson is Wednesday's Conliffe opinion. All five CAAF judges agreed that Article 133 is a purely military offense that can't provide the necessary object offense to support a conviction for housebreaking. The fireworks came over how to remedy the problem. Three judges ruled that even though unlawfully entry has a unique element that isn't included within housebreaking, it could nevertheless affirm a finding of guilty to unlawfully entry. The majority ruled that the service discrediting/prejudice to good order and discipline element of unlawful entry "is inherently included within the second element of housebreaking," which is "[t]hat the unlawful entry was made with the intent to commit a criminal offense therein." The majority also concluded that as both a general and case-specific matter, Conliffe was on notice that unlawful entry was an LIO and he voluntarily and knowingly pleaded guilty to that LIO, thereby "relinquishing his constitutional right to contest that offense." Finally, the majority concluded that Conliffe's providence inquiry provided a sufficient factual basis to support the Article 134 terminal element. The majority concluded that "in the context of this case, Appellant was on fair notice that his admission to discredit in the context of pleading guilty to conduct unbecoming an officer and a gentleman amounted to an admission to discrediting conduct for the purposes of unlawful entry." The majority reasoned that "when a servicemember engages in conduct unbecoming an officer and a gentleman, he or she also necessarily engages in service discrediting conduct or conduct prejudicial to good order and discipline." The two dissenting judges (Erdmann & Ryan, JJ.) argued that the majority's approach was precluded by United States v. Medina, 66 M.J. 21 (C.A.A.F. 2008). Judge Erdmann countered that Medina "represents a departure from this court's prior practice of assuming that clauses 1 and/or 2 of Article 134, UCMJ, are inherently, necessarily, implicitly or constructively lesser included concepts of other offenses, including the enumerated offenses." He noted that an application of an elements test for LIOs reveals that unlawful entry has an element that isn't included within the housebreaking offense and therefore unlawful entry can't be an LIO. Finally, in a dissent sure to warm the No Man's heart (and I'm shocked he hasn't mentioned this yet), Judge Ryan quoted Justice Thomas's concurring opinion in Apprendi v. New Jersey, 530 U.S. 466 (2000): "'[T]he indictment must allege whatever is in law essential to the punishment sought to be inflicted.' (quoting 1 J. Bishop, Law of Criminal Procedure 50 (2d ed. 1872))."

In Thursday's Kuemmerle decision, Judge Baker's opinion of the court defined online "distribution": "distribution of child pornography through the Internet under the CPPA, as factually presented in this case, consisted of two acts -- (1) the posting of the image, whereby the image left the possession of the original user, and (2) delivery of the image, whereby another user accessed and viewed the image." Under this analysis, a "distribution" occurs every time someone accesses the posted image. Judge Stucky dissented. Judge Stucky interpreted "distribution" to occur at the point that an image is posted on the Web and made available for download rather than at the point when the image is actually downloaded. He observed, "I can find no support in the case law -- and the Government cites none -- for the proposition that simply posting an image and then taking no other action constitutes 'distribution' six years later when someone happens upon the image." He distinguished this case, where the image (for reasons I can't even fathom) was in the accused's Yahoo profile from cases where child pornography is made available through a peer-to-peer network.

BREAKING NEWS: The SG has filed merits brief in Denedo

I've posted a copy of the SG's Denedo merits brief on CAAFlog.com. Here's a link.

Still waiting for Denedo merits brief

The Denedo brief isn't yet posted on the SG's web site. Worse yet, both ScotusWiki's home page and ScotusWiki's Denedo page seem to be down. I assumed that's where the brief would first appear on the Web.

Does anyone out there have a copy?

NMCCA to hold another en banc oral argument on Article 120's constitutionality

Yesterday, NMCCA ordered another en banc oral argument on the topic of the new Article 120's constitutionality. United States v. Neal, NMCCA NO. 200800746 (N-M. Ct. Crim. App. Jan. 7, 2009) (order). The argument will be held on 23 January 2009 at 1000. The issue to be argued is: "WHETHER THE MILITARY JUDGE ERRED BY GRANTING THE DEFENSE MOTION TO DISMISS THE SOLE CHARGE ALLEGING A VIOLATION OF ARTICLE 120(e), UCMJ, AS UNCONSTITUTIONAL." The order also included this interesting footnote: "Counsel should be prepared to discuss the applicable due process framework for analyzing the respective burdens of proof under Article 120(t)(16), UCMJ. See Medina v. California, 505 U.S. 437 (1992); Cooper v. Oklahoma, 517 U.S. 348 (1996); Weiss v. United States, 510 U.S. 163 (1994)."

Cabrera-Frattini files cert petition

Cabrera-Frattini's progress through the military justice system has been so implausible and absurd, it seems like a Farrelly Brothers movie. Now that movie's final scene is about to be written. The Supremes have docketed a cert petition in the case. Cabrera-Frattini v. United States, No. 08-830. Here's the QP:

The Appellant was accused of having sex with a 12 year old girl, but while the government had free access to talk to the alleged victim to prepare for trial, the defense was not given any opportunity to interview the alleged victim. The military judge ordered the alleged victim to submit to a pretrial deposition in order to remedy this unequal access to crucial evidence. Shortly before trial, the alleged victim was abruptly found unavailable to testify, and, over defense objection, a video of her deposition testimony was played for the jury. The question presented is:

Did the lower court err when it found that the deposition was a Constitutionally effective opportunity for cross-examination, where the deposition was the first and only opportunity for the defense to speak to the alleged victim, and the deposition had been specifically ordered to remedy the defense’s inability to effectively prepare for trial?

Still another CAAF opinion

United States v. Kuemmerle, __ M.J. ___, No 08-0448/NA (C.A.A.F. Jan. 8, 2009). CAAF splits 4-1 over whether a servicemember can be tried at court-martial for distributing child pornography where he posted a child pornography image online before going on active duty and left it there after he was on active duty, at which point a law enforcement officer accessed it. CAAF said yes, providing a comprehensive definition of "distribution." Judge Stucky in dissent said no.

Web woes

We've previously discussed multiple occasions when CAAF's web site has been down. Tonight it was my turn. I've finally clawed my way back onto the Net. I'll post a Conliffe recap tomorrow night. (No Man -- I think you jinxed me with that 2 a.m. comment.)

Court-Martial News Roundup

For all the roundup haters, stay tuned CAAFlog will have analysis of Conliffe later tonight. I suggest you stay up until 2 a.m. to make sure he hasn't posted while you were stewing over a non-CAAF story.

As Stars and Stripes reported today (actually tomorrow), here, premeditated murder charges were referred Monday against Master Sgt. John E. Hatley "in two separate incidents allegedly involving the shooting of Iraqi detainees in Iraq in 2007." For those that actually follow the roundups, you'll remember our previous reporting about Hatley and his involvement with other NCOs in detainee killings in Iraq. See coverage here and here. As we previously reported, Hatley and Sgt. 1st Class Joseph P. Mayo and Sgt. Michael P. Leahy Jr. are charged in one of the shooting deaths in which several others have been charged or pled guilty. Hatley and Leahy are the only two soldiers charged in the separate killing in January 2007.

Ending the strange saga of a Navy corpsman that once faced a potential GCM for wearing an unauthorized Purple Heart, Chief Petty Officer Robert White was sentenced to 45 days, reduction to E-5, and forfeitures for wearing the unauthorized ribbon. As Navy Times reported, here, White had been selected for E-8 before it was discovered his E-5 girlfriend entered the medal in his record without any official approval. Chief White apparently bought the ribbon at the Exchange himself. There are other interesting facts in the story, but I'll let you decide whether to click the link.

I thought this was an interesting story from the BBC, so I'll add it here. UK military leaders have started enacting reforms in the UK courts-martial system. Among the reforms that have been rolled out is the first ever civilian to head a Service Prosecuting Authority, which is the independent convening authority for all serious offenses in the UK military. The new Joint Prosecuting Authority will have jurisdiction over all serious crimes in the UK army, air force, and navy. For a complete review of the changes brought about by the UK Armed Forces Act of 2006, see the UK Ministry of Defence page here.

CAAF issues Conliffe opinion

Here's a link. More later.

Still more thoughts about today's ruling in Rodriguez

Sometimes CAAF petitions are untimely filed because the appellate defense counsel has dropped the ball. What then?

Some commentators have opined that the servicemember could seek collateral relief for IAC. But not so fast. Putting aside procedural questions about how an appellant who is neither confined nor on parole could bring such a claim, the Supreme Court-recognized right to effective assistance of counsel applies only to the first-level appeal as of right. Evitts v. Lucey, 469 U.S. 387 (1985). Lucey doesn't cover petitioning CAAF because that's a discretionary second-level appeal. Nor have lower courts been eager to find a constitutional right to effective assistance of counsel in a second-level appeal. The Ninth Circuit has flat-out stated that it "is well-established that criminal defendants have no constitutional right to counsel beyond their first appeal as of right, and hence no right to counsel in a discretionary appeal to the State's highest court." Smith v. Idaho, 392 F.3d 350, 356-57 (9th Cir. 2004). So if an appellant who is confined at, say, Naval Consolidated Brig, Miramar has an appellate defense counsel who drops the ball on filing a timely petition at CAAF, he or she is unlikely to prevail in an appellate IAC habeas action.

Nor is the Ninth Circuit alone in this view. The Second Circuit, for example, has observed that Supreme Court dicta "suggest that there is no right to counsel on any appeal beyond a first-level appeal as of right, whether the second-level appeal is discretionary or even of right. That appears to be the way our Circuit has understood Lucey: 'The [Supreme] Court has stated that the right to counsel extends only to a first appeal as of right.' Chalk v. Kuhlmann, 311 F.3d 525, 528 (2d Cir. 2002) (citing Lucey)." Hernandez v. Greiner, 414 F.3d 266, 269 (2d Cir. 2005) (alteration in original).

Nevertheless, a successful habeas challenge isn't completely unthinkable. A federal court can sometimes issue a writ of habeas corpus due to the violation of a federal statute in addition to the violation of the United States Constitution. 28 U.S.C. § 2241(c)(3). A good argument could be made that a military appellate defense counsel dropping the ball in filing a petition at CAAF violates the client's rights under Article 70. And there would certainly be good cause in such a case for not having pursued the claim before the military appellate courts, thus potentially removing such a habeas petition from the normal waiver/full-and-fair-review Catch-22 in which military habeas petitioners generally find themselves. But it still seems like quite an uphill battle.

Nor could the client successfully sue either the counsel or the service for monetary damages since any such suit would be Feres barred.

The majority's opinion did point to one potential escape hatch: in a case where an injustice might arise due to a petition's untimeliness, the relevant Judge Advocate General could ask CAAF for permission to certify an issue out of time. See Rodriguez, slip op. at 16 n.11. Since the 30-day certified issue deadline is rule-based rather than statute-based, Bowles v. Russell would allow CAAF to suspend its rules to authorize an untimely certified issue.

Is that a sufficient escape hatch? Or is more needed? Should Congress expressly amend Article 67 to authorize CAAF to accept an untimely petition for good cause shown? (In footnote 10, the CAAF majority notes a potential discrepancy between civilian criminal appellants' ability to pursue untimely appeals and military justice appellants' ability to do so and observes, "[T]hat apparent inconsistency is an issue for congressional consideration." Rodriguez, slip op. at 16 n.10.) If Congress were to authorize CAAF to accept untimely petitions, should there be any hard time limit beyond which CAAF couldn't exercise jurisdiction? These questions don't suggest any obvious answer to me.

Some thoughts about today's ruling in Rodriguez

While it's inside baseball, for military appellate counsel Rodriguez was one of the most eagerly anticipated decisions of the term. And when it arrived, it didn't disappoint. It's a 3-2 decision featuring 46 pages of analysis spread over three opinions (one majority opinion by Judge Erdmann and separate dissents by Chief Judge Effron and Judge Baker).

The five-member Effron Court came into being on 20 December 2006 when Judges Stucky and Ryan were sworn in. In little more than two years, the five-member Effron Court has produced six major cases concerning court-martial or military appellate court jurisdiction: Lopez de Victoria, 66 M.J. 67; Denedo, 66 M.J. 114; Adams, 66 M.J. 255; Hart, 66 M.J. 273; Wuterich, 67 M.J. 63; Rodriguez, __ M.J. ___, No. 07-0900/MC. (Did I overlook any others?)

Before today's Rodriguez decision, there were several interesting trends among the cases:

(1) all construed jurisdiction expansively;
(2) Judge Baker was in the majority in each decision;
(3) Judges Erdmann and Stucky were on opposite sides of each decision;
(4) Chief Judge Effron and Judge Ryan were on opposite sides of each decision;
(5) Each decision was resolved by a 3-2 vote.

Only two of those trends remain uninterrupted today. The Rodriguez Court broke the first trend by construing Article 67 to deprive CAAF of jurisdiction to entertain a petition that was dropped in the mail or hand-delivered to CAAF's courthouse more than 60 days after actual or constructive notice. Judge Baker was in dissent. And, disproving the notion of a "GOP bloc" advanced by a commentator, this was the first of the six jurisdiction cases in which Judges Erdmann and Stucky voted together -- which, given the continued streak of Chief Judge Effron and Judge Ryan diverging on jurisdictional questions, ensured three votes.

Continuing with the jurisdiction theme, here's an interesting question: do the Supremes have jurisdiction to hear this case? (Even if the Supremes did, I don't believe that CAAF's application of Bowles v. Russell would be of the slightest interest to the Supremes, but the jurisdictional question is interesting.) The Supremes have jurisdiction to review "[c]ases in which the Court of Appeals for the Armed Forces granted a petition for review under section 867(a)(3) of title 10." 28 U.S.C. § 1259. CAAF initially granted review in Rodriguez. United States v. Rodriguez, 66 M.J. 488 (C.A.A.F. 2008). But in today's ruling, CAAF "vacated" the "grant of review dated June 12, 2008" and "dismissed" the petition for grant of review. Rodriguez, __ M.J. ___, No. 07-0900/MC, slip op. at 17. Does that vacature of the grant of review remove Rodriguez from SCOTUS jurisdiction under 28 U.S.C. § 1259? Now, CAAF recently laughed a similar argument out of court in record time when I advanced it in the Wuterich recon petition, but hear me out.

As Judge Posner, writing for the Seventh Circuit, has observed, "void judgments are legal nullities.” Smith v. Potter, 513 F.3d 781, 782 (7th Cir. 2008). The Fourth Circuit has similarly observed: "'Vacate' means 'to render an act void; as, to vacate an entry of record, or a judgment.' Black's Law Dictionary 1548 (6th ed. 1990). And a judgment that is 'void,' as opposed to one that is merely 'voidable,' 'is nugatory and ineffectual so that nothing can cure it.' Id. at 1573." United States v. Martin, 378 F.3d 353, 357 (4th Cir.), cert. denied, 543 U.S. 1029 (2004). And there's plenty of language from other circuits making the same point. Does a "void" grant provide a jurisdictional basis for cert in this case? Is it enough for 28 U.S.C. § 1259 purposes that CAAF did at one time grant review of this case? Or would the Supremes instead say that because the original grant was voided, the applicable prerequisite for SCOTUS to exercise jurisdiction isn't satisfied?

Next, what is the effect of Rodriguez on the venerable precedent of United States v. Engle, 28 M.J. 299 (C.M.A. 1989) (per curiam)? Seaman Apprentice Engle's appellate defense counsel moved to withdraw Engle's petition for grant of review as untimely. CMA's response was basically: don't do that, appellate defense counsel, pointing out deficiencies in your client's legal position isn't in your job description. (I'm paraphrasing.) After noting that "defense counsel should not place himself in a position contrary to that of his client, if this can be avoided," CMA wrote: "The dates of service of decisions by the Courts of Military Review and of the filing of petitions for review in our Court are matters of record open to appellate government counsel and to the personnel of our Court. The Government is free to move to dismiss such petitions for untimeliness; and we can do so on our own motion. The filing of an untimely petition is not analogous to a fraud on the Court or a misrepresentation, in which instance counsel must intervene even at the risk of being at odds with the client." Id. at 299-300.

After Rodriguez, what should an appellate defense counsel actually do when the client decides after day 60 that he or she wants to petition CAAF? Should the appellate defense counsel simply submit the petition without moving to file an untimely petition, relying on Engle, leaving it to appellate government counsel to point out its untimeliness? Does today's recognition of untimeliness as a jurisdictional defect render impermissible tomorrow what was permissible yesterday?

These aren't easy questions and it will take some time for the military justice system to produce definitive answers. I'll pose a couple of additional questions provoked by Rodriguez in a follow-on post.

BREAKING NEWS: Rodriguez is out

3-2 opinion holding no jurisdiction to consider untimely petition. Here's a link. More later.

CAAF accepts Code 46's concession that a CCA can't reverse a contested conviction and instead affirm a non-LIO

CAAF's latest opinion is a per curiam in which, to quote the opinion, "The facts relevant to the granted issues are few." United States v. Thompson, __ M.J. ___, No. 08-0334/MC (C.A.A.F. Jan. 5, 2009) (per curiam).

Pvt Thompson was convicted of numerous offenses including kidnapping his wife. The kidnapping allegedly occurred when, according to Pvt Thompson's wife, she was beating him with a purse in the midst of an argument and he pulled her into a car and sped off with the door still open and her legs dangling outside. The car then stopped and Pvt Thompson's wife climbed into the back seat. Over the next several hours, the couple had make-up sex. Three times. NMCCA held that the evidence supporting the kidnapping conviction was neither legally nor factually sufficient to support the "“holding for a period” requirement and instead affirmed a conviction of reckless endangerment. United States v. Thompson, No. NMCCA 200600807 (N-M. Ct. Crim. App. Dec. 11, 2007). NMCCA provided meaningful sentence relief, reducing the period of confinement by two years at a point when, in all probability, Thompson was actually released far earlier than he would have been without such relief.

But, as the saying goes, no good deed goes unpunished. NMCCA observed that a CCA can disapprove a finding of guilty and instead affirm a finding of guilty to an LIO. It then proceeded to find Thompson not guilty of one offense (kidnapping) and affirmed a finding of guilty to another offense (reckless endangerment) that wasn't an LIO. In support of that dubious enterprise, NMCCA cited two cases in which a CCA or CAAF itself set aside convictions for a greater offense and instead affirmed convictions for LIOs (Fuller and Foster) and another case in which CAAF approved setting aside one conviction based on a guilty plea and affirmed a conviction for a closely related offense instead (Sapp) -- an application of the well-worn Felty doctrine. But Felty, of course, is a doctrine limited to guilty plea cases. In Thompson, NMCCA tried to apply the closely related offense concept in a contested case.

And so today, CAAF accepted the government's concession that NMCCA improperly affirmed a finding of guilty to reckless endangerment -- an offense Pvt Thompson was never put on notice to defend against. CAAF observed, "A comparison of the elements of the two offenses reveals that a conviction for reckless endangerment requires proof of elements that are not included in a specification for kidnapping." Thompson, No. 08-0334/MC, slip op. at 8. CAAF concluded: "The Government concedes, and we agree, that the substitution was improper. Reckless endangerment is not an offense necessarily included in the offense of kidnapping." Id. CAAF set aside the reckless endangerment conviction and remanded the case to NMCCA for sentence reassessment. Id., slip op. at 9. CAAF also upheld NMCCA's conclusion that assuming arguendo that the military judge erred by failing to suppress a confession, the confession's introduction was harmless beyond a reasonable doubt.

For some reason, I'm left with a good feeling after reading Thompson. The case shows how all the various components of the military justice system interact. The members initially hammered Thompson, adjudging a sentence of a DD, confinement for seven years, and total forfeitures. The CA knocked that down to confinement for five years plus the DD and total forfeitures. NMCCA characterized the kidnapping conviction as overkill and reduced that finding (albeit, erroneously, to a non-LIO) and knocked the sentence down to a BCD, confinement for three years, and total forfeitures. Code 46 promoted justice rather than reflexively opposing relief. Now CAAF has tweaked that outcome still more, with the residuum probably representing a more just outcome than the original verdict. This may be a glass-half-empty/glass-half-full kind of thing, but this certainly appears to be the system working just as Congress contemplated it.

CAAF issues opinion in Marine Corps case

CAAF issued a per curiam opinion today in United States v. Thompson, __ M.J. ___, No. 08-0334/MC (C.A.A.F. Jan. 5, 2009) (per curiam). Here's a link. More later.

Denedo resource

SCOTUSblog (a.k.a., the Greatest Blog on Earth) has a "ScotusWiki" page that collects all relevant documents concerning each Supreme Court case that is orally argued. Here's a link to the ScotusWiki page for United States v. Denedo, No. 08-267.

This week in military justice -- 4 January 2009 edition

The military justice system will now lurch into action for the first real business week of 2009.

This week at the Supreme Court: The Solicitor General's merits brief in United States v. Denedo, No. 08-267, is due on Friday. Once it's post on the SG's web site, we'll post a link.

This week at CAAF: CAAF has no scheduled oral arguments this week but could issue opinions and/or grants.

This week at the CCAs: There do not appear to be any scheduled oral arguments at ACCA, AFCCA, or NMCCA this week. The Coast Guard Court doesn't appear to post its oral argument schedule on the web. Does anyone know of a good source for that information?

This week in courts-martial: The North County Times, which is an indispensable source of information for military justice developments in the Camp Pendleton area, is reporting that Sgt Jermaine Nelson's court-martial, which had been scheduled to start tomorrow, has been pushed back due to a ruling from the military judge granting a defense expert witness request. The military judge in the case is Judge Jeffrey Meeks -- the same judge as in the Wuterich case. Sgt Nelson is reportedly charged with unpremeditated murder and three specs of dereliction of duty. This is a companion case to United States v. Nazario, which was tried as a MEJA case in the United States District Court for the Central District of California and which resulted in a complete acquittal. During that trial, Sgt Nelson was one of two Marines jailed for contempt for refusing to testify.

As always, please let us know if you're aware of any other significant military justice developments or news. You can reach us at caaflog@caaflog.com.

Top 10 military justice stories of 2008 -- #1: The legal aftermath of the Haditha incident

From the start of 2008 to its finish, the legal aftermath of the Haditha incident continued to make news. It presents some of the most fundamental questions that a military justice system can face about the possible criminalization of acts taken during combat operations. Due to the provocative issues it presents, its high profile, and the influence that it has already had and will continue to have on the development of military jurisprudence, the legal aftermath of Haditha is the #1 military justice story of 2008.

On 19 November 2005, Iraqi insurgents detonated an IED in Haditha, killing one Marine and wounding others. (I've seen conflicting accounts of the number of wounded Marines, though most accounts seem to say two.) During the combat operations immediately following the explosion, 24 Iraqi noncombatants were reportedly killed.

Apparently an official report was made soon after the incident that 15 Iraqi civilians had been killed in the IED explosion and when caught in the crossfire between Marines and insurgents during a firefight after the explosion. But a subsequent military investigation cast doubts on that official explanation and in March 2006, NCIS began an investigation of the incident.

While capital charges were once considered a serious possibility, on 21 December 2006, non-capital offenses were preferred against eight Marines arising from either their actions at Haditha or their handling of the incident's aftermath. Charges against four Marines were eventually dismissed, including those against LCpl Justin Sharratt, which were dropped by LtGen Mattis's now-famous letter clearing him of misconduct.

As 2008 began it appeared that four Marines would be prosecuted for their actions at Haditha and/or during the incident's aftermath.

In March of 2008, just as the court-martial of LCpl Stephen B. Tatum was scheduled to begin at Camp Pendleton, the government dismissed its charges against him.

4 June 2008 saw the first actual verdict in a Haditha case when a panel of Marine Corps officers found 1st Lt. Andrew Grayson not guilty of all charges and specs, which included two specs of making false statements during the investigation into the incident and two specs of attempting to fraudulently separate from the Marine Corps.

Meanwhile, more than three years after the incident and more than two years after charges were preferred, the remaining two cases are stalled.

In March 2008, court-martial proceedings began against SSgt Frank Wuterich. But the proceedings were quickly derailed when Judge Jeffrey Meeks quashed a subpoena that the U.S. had issued to CBS News for outtakes of an interview that SSgt Wuterich had recorded with 60 Minutes correspondent Scott Pelley. The government appealed that ruling, leading to a published NMCCA decision holding that it had jurisdiction to consider the quashing of a subpoena in an Article 62 appeal and reversing the trial judge's quashing of the subpoena without having first conducted an in camera review of the outtakes. United States v. Wuterich, 66 M.J. 685 (N-M. Ct. Crim. App. 2008). CAAF subsequently heard an appeal and, in its latest divided ruling expansively interpreting military appellate courts' jurisdiction, agreed with the Navy-Marine Corps Court, though CAAF vacated NMCCA's opinion because NMCCA had erroneously held (on its own initiative rather than in response to a government motion) that SSgt Wuterich had no standing to participate in the Article 62 appeal of a ruling in his own court-martial. United States v. Wuterich, 67 M.J. 63 (C.A.A.F. 2008). [DISCLAIMER: I was one of SSgt Wuterich's appellate defense counsel in his CAAF proceedings.] But even these rulings promise only more delay. The military appellate courts didn't definitively resolve whether the United States could actually have the CBS outtakes. Rather, they ordered the military judge to conduct further review before deciding whether the outtakes had to be turned over. And they reserved judgment on whether CBS could rely on a newsgatherer privilege to prevent the outtakes' turnover even if they turn out to be relevant and non-duplicative of the portions of the interview that aired. So, even setting aside the possibility that the Supremes could overturn CAAF's decision, the Wuterich case is nowhere near resolved.

Neither is the Chessani case. The final Marine charged as a result of the Haditha incident is LtCol Jeffrey R. Chessani, who was the commanding officer of 3d Battalion, 1st Marine Regiment. He was charged with violating a lawful order and two specs of dereliction of duty. On 10 June 2008, NMCCA denied a defense petition for extraordinary relief in the case, ruling that a discovery dispute wasn't an appropriate subject for an interlocutory writ. United States v. Chessani, No. NMCCA 200800299 (N-M. Ct. Crim. App. June 10, 2008). Then, a week later, Judge Steven Folsom dismissed the charges against LtCol Chessani without prejudice due to the appearance of unlawful command influence. If the government had accepted the ruling, it could have repreferred, rereferred, and actually tried the charges long before now. But instead, the Government filed an Article 62 appeal, which remains pending before NMCCA. The case was orally argued on 17 October. But as of today -- 78 days after that argument and 200 days after Judge Folsom's ruling -- that appeal is still unresolved. And no matter which way NMCCA rules, the case is likely nowhere near finished. If the government wins a reversal and if that ruling isn't overturned by a superior court, then the case can proceed on the original charges. But even if the government ultimately loses its appeal, it can still proceed with the case by bringing new charges.

So the legal aftermath of Haditha will continue to roil the military justice waters well into 2009 and probably beyond. What to make of all this will vary widely with the perspective of the individuals viewing the military justice system. Some will see the system working. Others will see the military cynically (and inefficiently) selecting sacrificial lambs to appease its critics. Still others will see the nearly opposite image of a military justice system cynically protecting its own. But such divergent views are one of the reasons why the legal aftermath of Haditha is so significant: it offers a kind of Rorschach test to assess its viewers' attitudes toward military justice. And individual viewers' impression of that Rorschach test may say more about their preconceived notions of the system than about what is being viewed.

Top 10 military justice stories of 2008 -- #2: The first court-martial trial and conviction of a civilian since the Vietnam War

Let me start by stating the obvious: the No Man thinks this should be the #1 military justice story of 2008. I certainly agree that it's a huge story. A silver medal is hardly a badge of shame. But even following the successful prosecution of Alaa Mohammad Ali, court-martial cases brought against civilians will likely remain rare. And given that rarity, I don't think this story rises to the level of the most significant of the year.

Having noted Navarre, M.J.'s dissent, let's move onto substantive matters.

In 1968, Mr. Raymond G. Averette was a civilian contractor in Vietnam, where he worked for Pacific Architects and Engineers, Incorporated, and supervised a motor pool for the United States Army. See generally United States v. Averette, 40 C.M.R. 891 (A.C.M.R.), rev'd, 19 C.M.A. 363, 41 C.M.R. 363 (1970). He was charged with and, contrary to his pleas, convicted of "conspiracy to commit larceny of thirty-six thousand batteries and attempted larceny of the same and was sentenced to be confined at hard labor for one year and to pay a fine of $2,000.00, with provision for additional confinement not to exceed one year until said fine is paid. The convening authority approved the sentence." Id. at 891. The Army Court of Military Review rejected a jurisdictional challenge to his prosecution by court-martial, upheld the findings of guilty to the two charges of which he was convicted while tinkering a bit with the supporting specifications, and upheld the year of confinement while reducing the fine to $500. CMA reversed, concluding that Article 2(10) did not provide jurisdiction to prosecute a civilian accompanying U.S. forces in the field unless Congress had declared war.

Thirty-six years later, Congress would revisit and expand Article 2(10). The John Warner National Defense Authorization Act for Fiscal Year 2007 amended Article 2(10) to authorize courts-martial of civilians accompanying the military in the field in time of "declared war or a contingency operation." Pub. L. No. 109-364, Div. A, Title V, §552, 120 Stat. 2083, 2217 (2006) (emphasis added). Professor Geoffrey S. Corn observes that the amendment was "[r]eportedly inserted by Senator Lindsay Graham of South Carolina." Professor Corn also observes, "How this amendment will be implemented by the armed forces, and whether it will withstand constitutional scrutiny in all respects, are two unanswered questions." 2008 saw the first baby steps toward answers to those two key questions.

On 2 April 2008, as some media outlets acknowledged, the No Man was the first to break the news that a civilian contractor in Iraq had been charged under the expanded Article 2(10). The accused, Alaa Mohammad Ali, was a joint Canadian-Iraqi citizen charged with assault with a dangerous weapon arising from a stabbing at Contingency Outpost 4, Iraq, in February 2008.

On 22 June 2008, according to a Multi-National Corps - Iraq press release, Mr. Ali appeared at a court-martial and "pleaded guilty to wrongful appropriation of a knife owned by a U.S. Soldier; obstruction of justice for wrongfully disposing of the knife after it was used in a fight with another interpreter; and making a false official statement to military investigators. A military judge sentenced Mr. Ali to five months confinement."

Mr. Ali's case raised a number of intriguing jurisdictional issues. But his sentence was less than the quantum necessary to qualify for Article 66 review, meaning he had no right to judicial appellate review absent the Judge Advocate General of the Army's referral of the case to ACCA. Mr. Ali unsuccessfully sought a writ from ACCA and then filed a writ appeal at CAAF. Here's a copy of his brief in support.

CAAF ultimately summarily denied the writ appeal. Ali v. Austin, __ M.J. ___, Misc. No. 09-8001/AR (C.A.A.F. Nov. 5, 2008) (summary disposition). It's still possible that the Judge Advocate General of the Army could refer the case to ACCA for review under Article 69(d) either before or after processing an Article 69 appeal. Unless he does so, the interesting jurisdictional challenges that Mr. Ali's counsel raised in his writ appeal will lie dormant, waiting to be invoked in the next inevitable prosecution of a civilian accompanying the U.S. military in Iraq or Afghanistan.