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.