Thursday, February 12, 2009

An appellate case's unusual trajectory

When we recently surveyed the relief rate for cases decided by AFCCA in calendar year 2007, one of the cases in which the court granted meaningful relief was United States v. Melson, No. ACM 36523 (A.F. Ct. Crim. App. Sept. 14, 2007) (per curiam). SSgt Melson received a sentence that included 12 years' confinement and a DD for a Whitman's Sampler of offenses ranging from possession of drug paraphernalia to attempted voluntary manslaughter for firing several birdshot-filled 12-gauge shotgun shells at his victim. (This resulted in AFCCA's wonderful line that "birdhsot can be lethal to more than just birds." Id., slip op. at 4.)

One of SSgt Melson's many offenses was bigamy and another was making a false official statement about his marital status on a Georgia state marriage license application. Not surprisingly, AFCCA held that the statement to a Georgia court clerk wasn't "official" and set aside the 107 conviction. The court reassessed the sentence and lopped 8 months off the 12 years of confinement, thus providing very meaningful relief. (To once again quote ex-Governor Rod Blagojevich, getting out of prison eight months early "is a [expletive deleted]ing valuable thing.")

After shooting down a factual/legal sufficiency challenge to the attempted manslaughter conviction, AFCCA turned to an IAC claim. Melson argued that his trial defense counsel should have raised an illegal pretrial punishment claim but didn't. Melson submitted a detailed affidavit painting a bleak picture of the county jail where he was held pretrial. The government submitted no counter-affidavit. AFCCA found IAC due to the trial defense counsel's failure to seek additional sentence credit. The court remedied the error by awarding 142 days of Suzuki credit.

Having failed to obtain and present an affidavit during the initial litigation before AFCCA, the government then obtained an affidavit from the trial defense counsel and sought reconsideration, which AFCCA denied. The Judge Advocate General of the Air Force then certified the case to CAAF, which reversed the Air Force Court, holding that it couldn't rule on the IAC claim until it had first "order[ed] a response from the trial defense counsel as to the allegations." United States v. Melson, 66 M.J. 346 (C.A.A.F. 2008). As I've previously noted, I'm not a fan of CAAF's Melson opinion, which seems to encourage and reward government sandbagging and, darn it, sandbagging is the defense's job.

In Melson, CAAF "set aside" AFCCA's opinion. Today AFCCA issued its replacement opinion. United States v. Melson, No. ACM 36523 (f rev) (A.F. Ct. Crim. App. Feb. 12, 2009) (per curiam). The replacement opinion reached the same result as to the false official statement charge and provided the same remedy. But this time, there was no extra 142 days of credit due to the pretrial confinement conditions. In rejecting the IAC claim, AFCCA concludes that "[s]ome of the appellant's assertions are corroborated (co-mingling of prisoners, lack of socks and undergarments, and lack of legal resources at the facility), others are contradicted (lack of medical treatment and lack of any legal resources), and others are merely speculative or conclusory (extreme temperatures, harassment by a security guard, and being transported in prison garb)." Id., slip op. at 7. Okay, so several claims are corroborated and a couple are contested -- which means that AFCCA can't reject them on the basis of conflicting affidavits. And how "extreme temperatures, harassment by a security guard, and being transported in prison garb" can be dismissed as "speculative or conclusory" is simply beyond me. For example, AFCCA's original opinion tells us that Melson claimed that the temperature in the county jail exceeded 100 degrees in the summer and was extremely cold in the winter due to "terribly poor" heating units, broken windows, inadequate clothing, and denial of underwear. How is that claim either "speculative or conclusory"? The original panel opinion also says Melson indicated that he wasn't allowed to change out of prison garb when he went to the Air Force base for legal appointments. Again, how is that claim either "speculative or conclusory"?

Ah, here's something that is conclusory. AFCCA concludes: "Returning to the Strickland test for ineffective assistance of counsel, we find the appellant has failed to meet his burden and the trial defense counsel was not ineffective. Assuming trial defense counsels' [sic] conduct was deficient, we find no prejudice." Id., slip op. at 7. Why? I have no idea.

The Melson case has already been scrutinized by military appellate courts three times. Here's hoping for a fourth.


Anonymous said...

"which seems to encourage and reward government sandbagging and, darn it, sandbagging is the defense's job."

I love it. Very true. Justice be damned.

Anonymous said...

This post takes the legal tests a little too seriously - the result is placed into the legal tests, not the other way around. That's not just true at AFCCA (or even in MJ, for that matter).

Having said that, the new administration may want to consider investing in rubber stamps a low-cost alternative to the vast majority of CCA casework.

Socrates said...


I agree with you...and I also agree with the tongue-in-cheek cynicism of 1:02 Anon: AFCCA seems to have cut-and-paste the legal standard - the magic words - "speculative or conclusory" - without contemplating the actual meaning of these terms. This is sloppy work and it’s a big deal that should not be easily forgiven.

A “speculative” claim would have been something like: the jail facility looked like it lacked insulation and could have gotten real hot in the summer and real cold in the winter. A “conclusory” claim would have been something like: the appellant was really uncomfortable in the jail.

But the appellant’s claims, as asserted here, are neither “speculative” nor “conclusive.” The judges should be more intellectually honest and just say what they were really thinking: "the appellant’s claims lack credibility," or "we are not convinced that appellant's claims accurately reflect the actual conditions at the jail facility," or the simplest version of candor: “we do not believe the appellant.”

I believe people should be afforded a great deal of latitude in their political and judicial philosophy. But I have little tolerance for abusing the English language. And true conservatives should be the first in line to condemn abuse and misuse of English terms. These judges could have taken another half hour and displayed some tenderness toward our mother-tongue, or even used a thesaurus.

Every lawyer should probably develop a reading list derived from non-legal sources. One of the indispensable essays of the 20th century was George Orwell, "Politics and the English Language," 1946. No lawyer should fail to read this work: “A man may take to drink because he feels himself to be a failure, and then fail all the more completely because he drinks. It is rather the same thing that is happening to the English language. It becomes ugly and inaccurate because our thoughts are foolish, but the slovenliness of our language makes it easier for us to have foolish thoughts.” C.S. Lewis echoed the same complaint in his introduction to “Mere Christianity” when he lamented that common people use “Christian” as a synonym for “goodness” or “charity,” when those words independently express different meanings, thank-you.

Will anybody out there agree with me and second this notion? JO’C, can I even convince you, the cranky curmudgeon of CAAFlog, that a better written opinion could have rendered the same result, achieving both intellectual honesty and preservation of the the English language? Will you second the notion that intellectual honesty and proper use of the English language are virtues that transcend all political and judicial divides?

You can mess with an appellant, but don't mess with my language. Shame on these careless judges.

Anonymous said...

Jail sucks. Would appellant rather be in the desert eating MREs and dodging IEDs? Or in the field for a week, cold, dirty, and miserable, with no sleep, etc? No sympathy for these pathetic, criminal whiners. Jail is not supposed to be a country club.

Bridget Wilson said...

Socrates- in re the details-a digression perhaps-it is not just English. In Spanish the word "cristiano" is used to describe a human being, example "le hable al perro como si fuera un cristiano" or "he talks to the dog as if it were human".

In re the use of birdshot, I am wondering if any members of the panel are hunters. At least where I came from, birdshot had a range of sizes, heck, Dad's favorite was # 8 shot, which I would agree with the court could cause some serious harm.

Socrates said...

Anon at 2:06, you prove my point in a roundabout way: your post, as written, would have been a better and most honest way to phrase this judicial opinion.

And I actually agree with your sentiment about the value of punishment, up to certain logical (and humane) limits.

John O'Connor said...


Like you said the other day, I tend to get moved only by the big picture MilJus issues. It would take way too much brain power (brain power I very well might not have) to replicate your deep thoughts on the language employed by the court

I sort of checked out on this case when I heard that the pretrial punishment was that the state jail was too hot during the summer and too cold during the winter. Which would make my mother subject to a motion for Suzuki credit.

Socrates said...


That's reasonable enough - and intellectually honest. You didn't have to twist the English language to make your point. (Or do you speak Irish?) The court could have made your point by writing something like: "Even if appallant's claims were true, we do not believe these relatively minor annoyances rise to the level of warranting confinement credit." English, logic, and law all intact.

Anonymous said...

J'OC's mother is in prison? When the hell did this happen?

Anonymous said...

If she's in prison, why would she buy a motorcycle?

John O'Connor said...

She's a bad, bad woman. I was the trial counsel.

Anonymous said...

If cursing were allowed here, I'd say J'OC is a bad motherfucker!!!

Cloudesley Shovell said...

In the spirit of not abusing the English language, let us also not make mistakes regarding firearms.

Bridget, I assume your dad hunted a lot of quail, since #8 birdshot is rather small, and suitable only for small birds (or trap and skeet shooting). Larger birds need larger shot. Pheasant, for example, call for #4 or #6 shot. Bigger pellet, smaller number. Ducks and geese, bigger shot yet (and a correspondingly smaller number, say #2, but I don't do much waterfowl hunting).

While birdshot could easily be lethal at close range, it rapidly loses its lethality and longer ranges (say, past 20-30 yards) as the shot pattern spreads and each pellet loses energy. In fact, it is not uncommon that a bird is just injured and knocked down, but not killed. If you don't have a good dog, the bird will just run away. It has also been shown that if you shoot a lawyer with birdshot at longer ranges, the lawyer will survive. (feel free to make lawyer-shooting jokes here, or condemn Cheney's lack of firearms and hunter safety discipline here. If you can incorporate Aaron Burr, more power to you!)

All that aside, the Court was entirely correct in affirming the attempted voluntary manslaughter conviction, regardless of whether the shotgun shells were #8 shot or 00 buckshot.

Dwight Sullivan said...

Many of the comments on this thread seem to miss a crucial point. They take a "jail-is-supposed-to-be-punishment" approach. But that overlooks that this case is about PRETRIAL confinement. And Congress has decreed that pretrial confinement may not be "any more rigorous than the circumstances required to insure his presence." UCMJ art. 13. If the government farms out its pretrial confinees to civilian jails that are unable to meet this congressional mandate, then it is appropriate for courts to take remedial action.

John O'Connor said...

I didn't miss that this was pretrial confinement.

Anonymous said...

Pretrial confinement should not be in any way punitive. It follows naturally that Allen credit should be abolished, as the pretrial confinment is therefore insufficiently punitive to count day for day.