Friday, February 27, 2009

CAAF grant and hearing notice

CAAF today granted review in United States v. Nance, No. 09-0164. Interestingly, CAAF ordered expedited briefing to allow the case to be argued on April 27. Here's the issue: "WHETHER APPELLANT'S PLEA OF GUILTY TO ENGAGING IN CONDUCT PREJUDICIAL TO GOOD ORDER AND DISCIPLINE WAS IMPROVIDENT BECAUSE OF A LACK OF EVIDENCE IN THE RECORD INDICATING THAT HIS CONDUCT WAS DIRECTLY PREJUDICIAL TO GOOD ORDER AND DISCIPLINE." Here's a link to the Air Force Court's opinion. United States v. Nance, No. ACM S31445 (A.F. Ct. Crim. App. Sept. 12, 2008).


Socrates said...

This is a curious grant. On its face, two things jump out. First, the quest for stuff "in the record" seems to fly in the face of long-standing providency requirements that the military judge simply "obtain an adequate factual basis," under Care, Prater's "substantial basis test," and Inabanette, 66 MJ 320 (CAAF 2008). Usually, the appellant's perfuctory admissions of minimal facts is enough. And I do stress: MINIMAL, as in Malevich circa 1913. It seems to me that although what happens in court is always part of the "record," providency admissions usually don't trigger this phrase. The phrase "in the record" usually implies something more extensive. I'm surprised the issue presented isn't the more simple "appellant's plea was improvident..."

Second, use of the term "directly" prejudicial to GO&D is a nuanced legal requirement. Is there any legal basis requiring "directness"? In my memory and experience, most offenses that have been deemed prejudicial to GO&D have been theoretically and/or indirectly so. Typical are offenses that nobody in the command really knows about or cares about. What the government is really arguing is that the offense "ought to" be prejudicial - if people knew about it. A per se "directly" prejudical requirement would require PEW or Gallup polls, focus groups, or testimony from Joe Q. Public or G.I. Joe, to determine if the offense "directly" prejudiced the command or the military. More perverse, what if bad behavior improved GO&D?

CAAF must be going after some subtle feature of providency law here.

Anonymous said...

no subtlety that i see. This grant is an issue that tons of appellate counsel over the years have considered and/or briefed. If I recall there is actually a split in the services between the army and the other services. On a separate note, is anyone aware of the most recent motion to issue a TRO in Roach?

Dwight Sullivan said...

1253 Anon, CAAF summarily denied the petition yesterday. [FAMILIAR DISCLAIMER: I am one of the appellate defense counsel in the Roach case.]

Phil Cave said...

I agree Anon. I litigate the GoD/SD issues in every case with a 134 charge.
I think there is enough in the standard bench-book instruction.
What's Roach?

Publius said...

1) Often you can't read much into the language of the issues on which CAAf grants because counsel write them in a way that suggests the appellant must have been wronged when in fact the evidence is not so clear cut.

2) That said, this is a guilty plea case. The question is not really evidence of record but what the accused told the judge. So my guess is the CAAF is questioning whether what the appellant said about good order and discipline was sufficient for the judge to accept the plea. On the other hand, after Wilcox, you have to wonder whether the CAAF is going to require a higher degree of evidence to establish good order and discipline as Socrates questions. In my experience, court members or the judge decided whether certain conduct was prejudicial to GO&D based on their own knowledge and experience, and the military judge's instructions. But Wilcox seemed to suggest that was not enough, at least in a free speech case.