Today's Green update

Here's an AP report on today's proceedings in the Green capital MEJA prosecution.

Timing is everything

LCDR Joseph Elred should win some sort of award for the timing of his article from last year's edition of the Naval Law Review: The Use of Force in Hostage Rescue Missions, 56 Naval L. Rev. 251 (2008).

CAAF grant

Yesterday, CAAF granted review in United States v. Smith, No. 09-0169/AR, on these issues:

WHETHER THE MILITARY JUDGE ERRED BY FAILING TO INSTRUCT ON OBEDIENCE TO LAWFUL ORDERS AS IT PERTAINED TO MALTREATMENT BY HAVING A MILITARY WORKING DOG (MWD) BARK AT A DETAINEE WHEN THERE WAS NO EVIDENCE BEFORE THE MILITARY JUDGE THAT SUCH AN ORDER WAS ILLEGAL.

WHETHER THE MILITARY JUDGE ERRED WHEN HE DID NOT INSTRUCT THE PANEL ON OBEDIENCE TO ORDERS (LAWFUL OR UNLAWFUL) AS IT PERTAINED TO MALTREATMENT BY HAVING A MWD BARK AT JUVENILE DETAINEES.

WHETHER THE EVIDENCE FOR ALL MALTREATMENT SPECIFICATIONS WAS LEGALLY INSUFFICIENT, BECAUSE THE DETAINEES WERE NOT "SUBJECT TO [APPELLANT'S] ORDERS" AND DID NOT HAVE A "DUTY TO OBEY."

CAAF lifts stay in Webb

We previously discussed AFCCA's published opinion in United States v. Webb, __ M.J. __, No. 2009-01 (pet) (A.F. Ct. Crim. App. March 20, 2009), which found that a court-martial had jurisdiction to prosecute Webb even though he had received his DD 214 and final accounting of pay. We also looked at CAAF's order halting the trial. United States v. Webb, __ M.J. ___, No. 09-8020/AF (C.A.A.F. March 20, 2009). Yesterday CAAF denied Webb's writ appeal without prejudice and vacated the stay of proceedings. United States v. Webb, __ M.J. ___, No. 09-8020/AF (C.A.A.F. Apr. 29, 2009) (summary disposition).

Navy Denied En Banc Rehearing in Chessani

Following up on CAAFlog's post, the Navy-Marine Corps Court of Criminal Appeals yesterday did deny the Judge Advocate General's petition for en banc rehearing in the Chessani Art. 62 appeal of Judge Folsom's unlawful command influence ruling. Here is a link to a partial copy of the Court's order, the Thomas Moore Law Center website doesn't have the full copy. If anyone has the full copy, please email it to me at noman@caaflog.com. I am guessing the ruling had something to say about lateral taint vs. appearance of unlawful command influence, as raised in LtCol Chessani's opposition brief, here, courtesy of his counsel the Thomas Moore Law Center. Here is our prior link to the government motion for rehearing.

Let's honor Chief Judge Baum's memory by repealing Article 142(b)(4)

When Congress adopted the UCMJ in 1950, it provided that "[t]he Court of Military Appeals shall consist of three judges appointed from civilian life."

In 1990, Congress defined that language in a way that limited the discretion of the President in picking nominees for CMA vacancies. In a section of the National Defense Authorization Act for Fiscal Year 1991 titled "CLARIFICATION OF CERTAIN PROVISIONS IN UNIFORM CODE OF MILITARY JUSTICE," Congress provided: "For purposes of appointment of judges to the court, a person retired from the armed forces after 20 or more years of active service (whether or not such person is on the retired list) shall not be considered to be in civilian life." 104 Stat. 1565, 1565.

Now I don't know who actually proposed adding that provision to the UCMJ or why. But I can tell you a common belief about the provision's origins. According to military justice lore, the Secretary of Transportation was supporting Joe Baum, who was then the civilian chief judge of the Coast Guard Court of Military Review, for an upcoming vacancy on the Court of Military Appeals and someone in Congress inserted this language into the UCMJ to torpedo his potential nomination. Again, I have no idea whether that's actually true, but that understanding is so widespread that Article 142(b)(4) is typically called the Baum Amendment.

Article 142(b)(4) serves as an ill-advised limitation on the President's discretion. Note that the amendment doesn't preclude the President from nominating a retired -- or even drilling -- reservist to the court, as Presidents have done since the amendment was enacted. But it does preclude the President from exercising his discretion to nominate a distinguished retired active duty judge advocate for a CAAF judgeship.

One would think that a pretty good training ground to serve as a CAAF judge would be service on a Court of Criminal Appeals. Yet those who served on a CCA in an active duty capacity are now statutorily ineligible to serve on CAAF. (Judge Stucky, however, did serve on the Air Force Court as a reservist.) So, for example, the President can't exercise his discretion to nominate a jurist who distinguished himself as an active duty CCA judge and then retired and went into civilian practice -- like our very own Judge Mathews the Greatest. Nor could the President exercise his discretion to nominate a career military lawyer who retired and then distinguished himself on another federal bench, like Judge Wayne Alley (Brigadier General, U.S. Army, Retired) of the U.S. District Court for the Western District of Oklahoma or Judge William A. Moorman (Major General, U.S. Air Force, Retired) of the United States Court of Appeals for Veterans Claims.

To consider the case of the the man who inspired this post, why shouldn't a President have the discretion to decide that the best nominee for CAAF is a 30-year Navy veteran who served for six years on the Navy Court of Military Review before serving as a civilian for many years on the Coast Guard Court? In my view, he should. Congress should rescind Article 142(b)(4)'s unwise limitation on presidential discretion.

Yesterday's CAAF decisions

United States v. Gardinier, __ M.J. ___, No. 06-0591/AR (C.A.A.F. Apr. 28, 2009), is a highly case-specific decision in which CAAF unanimously reverses ACCA on a harmless error determination. It doesn't seek to develop the law; rather, it's an application of existing law to the specific factual context of the case. Judge Erdmann wrote for the court.

More significant (unless you happen to be Staff Sergeant Gardinier) is yesterday's decision in United States v. Gladue, __ M.J. ___, No. 08-0452/AF (C.A.A.F. Apr. 28, 2009). The most important lesson of Gladue is that a PTA term that waives all waivable motions will preclude appellate consideration of a multiplicity claim. CAAF split 3-2 over whether a multiplicity claim is waived by such a PTA term even if the military judge doesn't expressly advise the accused that he or she is waiving all multiplicity claims. Writing for the majority, Judge Stucky says it does. A PTA term that waives "any waivable motions waive[s] claims of multiplicity and unreasonable multiplication of charges and "extinguish[es]" an accused's "right to raise these issues on appeal." Id., slip op. at 9. Writing for himself and Chief Judge Effron, Judge Baker says that an appellate court shouldn't find that such claims are waived where the military judge didn't so advise the accused. But Judge Baker and Chief Judge Effron concur in the result, concluding that even if the multiplicity issue wasn't considered waived, it was a loser on appeal.

NMCCA reportedly stamps "denied" on government's motion for en banc rehearing in Chessani

This North County Times report about the Chessani case includes some serious errors. VADM MacDonald, not LtGen Helland, gets to decide whether the government will appeal to CAAF. And he has 30 days to do so, not 60. But presumably the heart of the story is correct -- NMCCA denied the government's request to reconsider its Chessani ruling en banc.

A copy of the Government's recon motion is available here. The No Man's discussion of that motion is available here. NMCCA's unpublished Chessani opinion is available here. Our discussion of that opinion is available here.

Green update

Here's an AP report on today's proceedings in the capital MEJA prosecution of United States v. Green being tried in U.S. district court in Paducah, Kentucky.

New Supreme Court habeas and Brady violation case

Yesterday, the Supreme Court released Cone v. Bell, found here. It is a habeas case reviewing the waiver and procedural barring of a Brady violation claim based on the complex procedural history of the state direct and collateral reviews. Cone has the distinction of this being his not first, nor second, but third published Supreme Court collateral review of his case. See Bell v. Cone, 543 U.S. 447 (2005); Bell v. Cone, 535 U.S. 685 (2002). What caught my attention in this case relates to some recent discussion regarding on CAAFlog regarding the duties of trial counsel. In Bell, the prosecutor did not turn over evidence that could be used to support the defense theory that Cone was heavily influenced by drugs at the time of the offenses - an argument the defense used both in findings and sentencing. Cone's possible insanity and "chronic amphetamine psychosis" were the cornerstones of his defense. The Court does a nice job distinguishing the impact on findings (none) and on sentencing (maybe) and remands the case to determine what the impact on sentencing was. The suppressed evidence came to light ten years after trial when the defense obtained the prosecutor's file. If the prosecutor had given the defense everything in the file, who knows if Cone could have avoided the death penalty. But there is a pretty good bet that the state of Tennessee wouldn't be arguing about this case 27 years later.

Remembering Joe Baum

Joe Baum lived in Arnold, Maryland, which is also my home. Our local paper -- the Capital -- published this obituary yesterday.

Remembering Kevin Barry

Before hearing oral argument on Monday, CAAF observed a moment of silence in memory of Kevin Barry. You can hear Chief Judge Effron's remarks about Kevin here. And here's a lengthy obituary that the Washington Post published yesterday.

As the second Cox Commission gets set to hold a public hearing, it seems appropriate to reread Kevin's article, A Face Lift (and Much More) for an Aging Beauty: The Cox Commission Recommendation to Rejuvenate the Uniform Code of Military Justice, 2002 L. REV. M.S.U.-D.C.L. 57, which is available here.

Two new CAAF opinions

CAAF issued two opinions yesterday: United States v. Gladue, __ M.J. ___, No. 08-0452/AF (C.A.A.F. Apr. 28, 2009); and United States v. Gardinier, __ M.J. ___, No. 06-0591/AR (C.A.A.F. Apr. 28, 2009). I"ll try to post summaries tonight.

Green capital MEJA prosecution update

Here's an AP report on Tuesday's proceedings in the Green capital MEJA prosecution in U.S. district court in Paducah, Kentucky.

Audio of Tuesday's CAAF arguments

Here's the audio of yesterday's oral argument in United States v. Mazza, No. 09-0032/NA. And here's the audio of yesterday's oral argument in United States v. Bush, No. 09-0119/MC.

Audio of today's CAAF arguments

Audio of today's two oral arguments has been posted on CAAF's web site. The audio of the argument in United States v. Nance, No. 09-0164/AF, is here. Audio of the argument in United States v. Wilson, No. 09-0010/AR, is here.

First day of the Green capital MEJA prosecution

Here's a link to an AP report on the first day of the Green capital MEJA prosecution being tried in U.S. district court in Paducah, Kentucky.

More sad news: former CGCCA Chief Judge Joe Baum passes away

We learned today that Joe Baum, the longtime chief judge of the Coast Guard Court, passed away on Saturday. He was also a 30-year Navy veteran who had served as a judge on the Navy Court. He was one of our nation's foremost experts on military justice and an extremely gracious man.

We posted this comment about Chief Judge Baum, noting his long-standing service as a military appellate judge, upon learning of his retirement in 2007.

Prosecutors in Green case move to prevent defense from arguing case should have been tried by court-martial

With the trial on the merits in the capital MEJA case of United States v. Green set to start tomorrow, my guess is that the No Man and I will be compulsively linking to accounts of the trial over the next three to five weeks -- the expected length of the trial. Here's an article from today's Louisville Courier-Journal reporting that the prosecutors trying the case have moved "to bar the defense from arguing [that Green] should have been tried in a military court."

This week in military justice -- 26 April 2009 edition

This week at the Supreme Court: No military justice items appear on the Court's schedule this week. Our Denedo lookout is starting his stretching exercises so he'll be ready when we send him up to the CAAFlog crow's nest.

This week at CAAF: CAAF will hear four oral arguments this week. Tomorrow's first argument is in United States v. Nance, No. 09-0164/AF, where the granted issue is "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." Tomorrow's second argument is in United States v. Wilson, No. 09-0010/AR, where the granted issue is "WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED IN AFFIRMING APPELLANT'S CONVICTION FOR RAPE WHEN THE MILITARY JUDGE EXCEPTED 'ON DIVERS OCCASIONS' FROM THE SPECIFICATION AND DID NOT SPECIFY THE SINGLE OCCASION AS PART OF THE FINDING, BUT THE VICTIM ONLY TESTIFIED TO A SINGLE OCCURRENCE AND THE PARTIES ONLY ARGUED THIS SINGLE OCCASION TO THE MILITARY JUDGE." CAAF will hear two more arguments on Tuesday. The first is in United States v. Mazza, No. 09-0032/NA, where the granted issue is "WHETHER THE CIVILIAN DEFENSE COUNSEL WAS INEFFECTIVE BY: (1) SOLICITING HUMAN LIE DETECTOR TESTIMONY, (2) FAILING TO OBJECT TO ADMISSION OF THE VICTIM'S VIDEOTAPED INTERVIEW, AND (3) PERMITTING THE VIDEOTAPE TO BE VIEWED DURING DELIBERATIONS." The final CAAF argument of the week will be in United States v. Bush, No. 09-0119/MC, where the granted issues are: I. "WHETHER THE COURT OF CRIMINAL APPEALS' INTERPRETATION AND APPLICATION OF THIS COURT'S DECISION IN UNITED STATES v. ALLENDE, 66 M.J. 142 (C.A.A.F. 2008) PLACES IT AT ODDS WITH THIS COURT'S DECISION IN UNITED STATES v. GINN, 47 M.J. 236 (C.A.A.F. 1997)"; and II. "WHETHER THE COURT OF CRIMINAL APPEALS MISINTERPRETED ALLENDE, CREATING THE PRACTICAL RESULT OF SHIFTING TO AN APPELLANT THE BURDEN OF PROVING THAT A CONSTITUTIONAL ERROR WAS HARMFUL."

This week at the CCAs: On Wednesday, ACCA will hear oral argument in United States v. Lockhart, No. ARMY 20070689. Four assignments of error will be argued: "I. THE COURT-MARTIAL LACKED PERSONAL JURISDICTION OVER APPELLANT BECAUSE THE APPELLANT'S BREAK IN ACTIVE DUTY SERVICE TERMINATED JURISDICTION"; "IV. THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT WHEN SHE FAILED TO GIVE APPROPRIATE SENTENCE INSTRUCTIONS"; "V. THE EVIDENCE IS LEGALLY AND FACTUALLY INSUFFICIENT TO SUPPORT THE FINDING OF GUILTY TO FORGERY WHERE NO EVIDENCE SHOWS THAT THE LEASE, IF GENUINE, OPERATED TO THE LEGAL HARM OF ANOTHER, FURTHERMORE, THE LEASE DOCUMENT WAS OF NO LEGAL EFFICACY"; and "VI. THE MILITARY JUDGE ABUSED HER DISCRETION WHEN SHE ADMITTED APPELLANT'S FEDERAL INCOME TAX RETURNS INTO EVIDENCE OVER APPELLANT'S OBJECTION."

This week at the trial level: All eyes will be on Paducah, Kentucky this week, where the trial on the merits in the capital MEJA prosecution of former Army PFC Steven Green is set to start tomorrow.

Another Article 2(a)(10) article

Colonel Peter Masterton, whose scholarship I greatly respect, has published an article on Article 2(a)(10):

Colonel R. Peter Masterton, Court-Martial Jurisdiction Over Civilians in Contingency Operations: A New Twist, 35 N.E. J. on Crim. & Civ. Con. 65 (2009).

Article argues for enhanced criminal accountability of commanders whose subordinates commit war crimes

This article presents a "theoretical framework, rooted in expressivist conceptions of harm, for holding a commander criminally responsible for an atrocity of his subordinates. More specifically, this Article argues that, where a commander's failure to punish an atrocity of his troops can be read as an expression of his support for his subordinates' act or the message it conveyed, his failure comes to constitute part of the injury. As such, he may be held criminally liable for the atrocity, and not just for neglecting his duty to punish." Amy J. Sepinwall, Failures to Punish: Command Responsibility in Domestic and International Law, 30 Mich. J. Int'l L. 251, 255 (2009) (footnote omitted). The article includes a discussion of the Haditha courts-martial. Id. at 275-80.

Law review article by Army judge advocate on UCMJ jurisdiction over civilian contractors

Our horde of Article 2(a)(10) aficionados will want to look at this law review article:

Dan E. Stigall, An Unnecessary Convenience: The Assertion of the Uniform Code of Military Justice ("UCMJ") over Civilians and the Implications of International Human Rights Law, 17 Cardozo J. Int'l & Comp. L. 59 (2009).

New published sentencing argument decision from CGCCA

The Coast Guard Court issued a published opinion today. United States v. McDonald, __ M.J. ___, No. 1294 (C.G. Ct. Crim. App. Apr. 24, 2009). The central issue in the case is whether the TC's sentencing argument included improper comments that rise to the level of plain error. No, ruled CGCCA.

The court held that it was improper for the TC to argue, "His drug use alone and the impact that it has on our service and the unit of CUTTER SHERMAN as a law enforcement cutter deserves a bad conduct discharge." Because the drug use didn't produce an adverse impact on the cutter's law enforcement mission, the TC's argument "improperly links Appellant’s status as a boarding team member to his marijuana offense." But while the argument was improper, it was only a small part of the TC's argument and didn't constitute plain error, especially in this judge alone case.

CAAF gives Navy JAG until 15 May to certify Neal

CAAF has extended the Judge Advocate General of the Navy's window to certify Neal -- a case concerning the constitutionality of the new Article 120 -- but only until 15 May. United States v. Neal, __ M.J. ___, No. 09-5004/NA (C.A.A.F. Apr. 23, 2009). CAAF's order says it was granting "Appellant's motion for enlargement of time." When we previously asked our commentariate which side sought the enlargement, we were told Appellate Government did it. The United States would be the appellee if Neal were certified. Was this just a typo on CAAF's part or has Appellate Defense also sought an enlargement of VADM MacDonald's window to certify the case?

Sad news: CAPT Kevin J. Barry, USCG (Ret.) has passed away

Like many of you, I was lucky enough to know, work with, and learn from Kevin Barry. He was a warrior for justice with a fighting spirit and a keen sense of right and wrong. The amount that he accomplished, including his military justice reform work through the ABA, was impressive. And he was ALWAYS immaculately attired.

Kevin succumbed to cancer. But given his refusal to allow cancer to stop him over the last 12 years, I'd say that he beat cancer rather than it beating him.

We've lost someone very special.

Motion for new trial in Behenna?

We've previously discussed the conviction of 1LT Michael Behenna for unpremeditated murder and resulting 25 year sentence. We've also discussed the allegations of a Brady violation that followed the conviction.

I've now received a report that 1LT Behenna's counsel have filed a motion for a new trial with the military judge. Can anyone confirm that report or, even better, shoot us a copy of the motion? As always, you can reach us at caaflog@caaflog.com.

SG gets more time to respond to Wuterich cert petition

As reflected by the Wuterich case's SCOTUS docket, the SG has received an extension until 3 June to file the requested response to SSgt Wuterich's cert petition. [DISCLAIMER: I'm petitioner's counsel of record.]

New Supreme Court search and seizure case

On 21 Apr 09, the Supreme Court addressed the troubling problem of searches of automobiles under the New York v. Belton Warrant Exception. In Arizona v. Gant, 556 U.S. __ (2009), found here: http://www.supremecourtus.gov/opinions/08pdf/07-542.pdf (sorry, No Man won't help me do the fancy links), the arrestee was handcuffed and locked in the backseat of the police car. The Court ruled that Belton had been overapplied and that it did not authorize a vehicle search incident to an occupant's arrest if the arrestee had been secured and could not access the interior of the vehicle. The Court focused on the Chimel v. California rationale justifying searches incident to arrests: officer safety. Rejecting an expansive reading of Belton, the Court ruled that Chimel only authorizes a search incident to a recent occupant's arrest when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.

The Court does make a new exception for cases where the search is for evidence "relevant to the crime of arrest" that might be found in the vehicle. But the Court notes that arrests for traffic violations will not usually provide a reasonable basis to believe the vehicle contains relevant evidence (slip op. at 10).

LCDR Julia Crisfield pointed out to me the conflict with Mil. R. Evid. 314(g)(2)(A) which seems to allow for a search incident to arrest of an automobile even where the occupant is not within reaching distance of the interior of the vehicle.

The cult of Sir Cloudesley Shovell

First Sir Cloudesley gets his own Facebook page. Then JO'C names him CAAFlog's Most Valuable Commentator. Now he's quoted in a law review article. I'm not kidding. Look at footnote 88 in Major Tyesha E. Lowery's new Army Lawyer article, The More Things Change, the More They Stay the Same: Has the Scope of Military Appellate Courts’ Jurisdiction Really Changed since Clinton v. Goldsmith?, Army Law., March 2009, at 49, 54.

MAJ Lowery writes, "There is nothing precluding a former servicemember whose case is final under Article 76 from petitioning a court of criminal appeals for extraordinary relief." In support, she offers this footnote: "Posting of Cloudseley Shovell to CAAFlog, https://www.blogger.com/comment.g?blogID=34853720&postID=1877241590194968336 (June 23, 2008, 14:00 EDT) (Denedo 'opens the doors of the CCAs to all manner of extremely stale claims, because now CCAs have continuing jurisdiction over all cases meeting the Art. 66(b) threshold, no matter how old, no matter how thoroughly reviewed, and no matter how final. All you need is an appellant who is still alive.')."

[Alas, the article misspells the good admiral's name.]

Second half of the Army Lawyer's criminal law symposium now online

The March edition of the Army Lawyer, which includes the second half of the criminal law symposium, is now online here.

CAAF adds Aviano oral argument date

CAAF has added an additional oral argument date to its calendar -- 24 June. CAAF will hear oral arguments in the two Aviano cases: United States v. Ashby, No. 08-0770/MC, and United States v. Schweitzer, No. 08-0746/MC. As we've noted, the case will be heard by the Hall of Fame panel of Judges Erdmann and Stucky and Senior Judges Everett, Cox, and Gierke.

CAAF issues new grant

Today's web update of CAAF's daily journal included a grant of this unlikely issue: "WHETHER THE LOWER COURT ERRED WHEN IT HELD THAT APPELLANT'S UTTERANCE OF 'MMMM-MMMM-MMMM' WAS LEGALLY SUFFICIENT TO SUPPORT A CONVICTION FOR INDECENT LANGUAGE." United States v. Green, __ M.J. ___, No. 09-0133/MC (C.A.A.F. Apr. 17, 2009). NMCCA's unpublished opinion in the case is available here. United States v. Green, No. 200800005 (N-M. Ct. Crim. App. Aug. 28, 2008).

Exciting news: Cox Commission II schedules public hearing

NIMJ has issued this announcement that the second Cox Commission will hold a public hearing on 16 June 2009 at the George Washington University Law School in D.C. Comments for the Cox Commission's consideration can be sent to coxcommission@wcl.american.edu. A fascinating non-exhaustive list of topics that the Cox Commission will be considering is available here.

Wuterich NMCCA Appeal

Here is the latest Government brief in the US v. Wuterich Saga. This is the G's Art. 62 appeal of the military judge's second ruling, covered here and available . . ., where the judge found a qualified news gatherer privilege and found the evidence otherwise nice to have, but cumulative.

Credit has to go to the government for the brief. After spending a lot of time saying there should be no qualified news gatherer privilege in the miltiary, the brief in 5 and a half concise, Courier New 12 font pages, does a good job arguing that the military judge was wrong on the cumulativeness ruling. The brief rebuts Judge Meeks' conclusion that the outtakes were "not critical," "consistent with other evidence," and just "nice to have," by effectively arguing that they are important to the government and the best evidence of the accused's guilt. I particularly liked the comparison between the accused's 2-page sworn statement and 80 minutes of admission on pages 44-45.

More to follow. Hard to say if this will be another win for the G at NMCCA and loss at CAAF.

New Military Justice Blog

Lawyers in civil suits are able to look up past jury awards to see what a case they're considering trying is "worth." Soon military justice practitioners might have a similar resource. Thomas Hong's "This Court-Martial Sentences You To . . ." appears to be an ambitious attempt to collect and categorize court-martial sentences by forum and offense. For now it seems mostly limited to Army cases in Europe. But Hong, who has been collecting sentences since December, invites sentencing results from all services. Why? "Because it is useful info for military justice practitioners and satisfies the curious" according to the blog's own description. If you're curious, check it out here.

Marine Corps Times article on the Foster case

We have previously discussed NMCCA's unpublished opinion in United States v. Foster, setting aside as factually insufficient a Marine's conviction for raping his wife after he had already served nine years of his 17-year sentence. United States v. Foster, No. NMCCA 200101955 (N-M. Ct. Crim. App. Feb. 17, 2009). The Marine Corps Times has now posted this lengthy article about the case. Gidget Fuentes, Innocent Marine freed after 9 years in prison, Marine Corps Times, posted 20 April 2009, 18:25:31 EDT.

Capital MEJA Case to Resume Apr. 27

Opening arguments are scheduled in the former Pfc Steven Green capital MEJA case on Apr. 27. As the Houston Chronicle reports, here, prosecutors and defense attorneys seated a jury of 15 on Friday. The case will now take a 1-week hiatus to allow the American Quilters Society show to take over the town of Paducah, Kentucky, which as our loyal reader knows, is no joke. See prior coverage here. As the story reports, Green is charged with "raping a 14-year-old Iraqi girl and killing her and her family" in Mahmoudiya, Iraq in March 2006.

Our sharp readers will ignore the AP story's error in this sentence, "Former Pfc. [Green] is the first ex-soldier to be charged as a civilian under a 2000 law that allows U.S. authorities to prosecute former members of the military for crimes overseas." Oh well, I guess if the AUSAs get a murder conviction it will be a first.

Army stops accepting felons and recent drug users

Just about this time last year, we bemoaned the increase in "conduct waivers" issued by the Army to enlist recruits with criminal records. A year later, we cheer the news, as reported in today's WaPo, that last month the Army stopped enlisting potential recruits with felony convictions and recent drug use. Ann Scott Tyson, Army More Selective as Economy Lags, Wash. Post, Apr. 19, 2009, at A6. The article also reports that this year, the Army is on track to meet its goal of 90% of recruits with high school diplomas -- a goal the Army hasn't met since 2004.

The article indicates that while the Army issued 511 waivers to enlist convicted felons in 2007, "adult major misconduct" waivers are no longer available.

This week in military justice

None of the military appellate courts is scheduled to hear oral argument this week.

As always, we'll be on the lookout for CAAF decisions, published CCA decisions, and CAAF grants. It's probably too early to send our Denedo lookout up to the CAAFlog crow's nest. According to these statistics from SCOTUSblog, the Supremes have decided or dismissed 12 fo the 14 cases heard during the October sitting, 10 of the 13 cases heard during the November sitting, 6 of the 12 cases heard during the December sitting, 5 of the 11 cases heard during the January sitting, 3 of the 12 cases heard during the February sitting, and none of the 6 cases (including Denedo) heard during the March sitting.

As always, if you're aware of any signficant upcoming military justice events -- including significant courts-martial -- please let us know. You can reach us at caaflog@caaflog.com.

Gov't Asks for En Banc NMCCA Reconsideration in Chessani

Navy-Marine Corps Appellate Government asked NMCCA for En Banc reconsideration in United States v. Chessani, the unlawful command influence case involving the court-martial of LtCol Chessani for alleged failings in investigating killings in Haditha in November 2005. Here is a link to the motion. See full CAAFlog coverage of the facts of the case here and here.

Essentially the government motion says, yes, we did provide compelling evidence to rebut the improper flow down of UCI taint--which really isn't a basis for en banc reconsideration. Thus, Appellate Government also argues that because the investigating officer in the Haditha investigation (the source of the UCI taint) and the MARCENT SJA were relative equals in the command structure (though different ranks), that NMCCA has created a new breed of "lateral" taint in UCI cases.

Counsel for LtCol Chessani tells us, "the government doesn't know when it has lost." We'll see if he proves correct.

Audio of Wednesday's CAAF arguments now up

The audio of Wednesday's oral argument in United States v. Sanders, No. 09-0013/AF, is now available here. My colleague Tiaundra Sorrell brought down the house with a line during her rebuttal. The audio of Wednesday's oral argument in United States v. Wiechmann, No. 09-0082/MC--an important case about counsel rights--is available here.

Master Sergeant Hatley Found Guilty In 2007 Detainee Murders, Sentencing Today

As the NYT, here, and lots o' others, including Stars and Stripes here, are reporting, members found MSgt John Hatley guilty of the murder of four Iraqi detainees in 2007. Hatley was acquitted of charges involving the killing a wounded detainee and conspiracy to conceal evidence. Sentencing is expected today.

The New York Times story has an interesting observation from James Culp, a former Army JA and currently involved in court-martial defense in private practice:

Military legal experts said the soldiers’ rank showed the frustration of fighting insurgents who blended in with the locals. “When the first sergeant of a company snaps, taking a sergeant first class and a senior medic with him, it’s a sign that they’ve just had too much,” said James D. Culp, a former Army trial lawyer.

Thought that would be an apt sentencing strategy for MSgt Hatley.

New military cert petition docketed

The Supremes have docketed a cert petition in Burton v. United States, No. 08-1270, which seeks cert to review CAAF's decision at 67 M.J. 150. Here's the QP:

Whether Petitioner's right to Due Process was violated when the trial judge permitted the triers-of-fact to consider evidence of a charged sexual assault, not offered under M.R.E. 413, as propensity evidence that Petitioner raped a different woman approximately four years later.

Motion to extend time to file certificate of review in Neal

The No Man previously discussed NMCCA's en banc opinion unanimously rejecting a constitutional challenge to the new Article 120. United States v. Neal, __ M.J. ___, No. NMCCA 200800746 (N-M. Ct. Crim. App. March 31, 2009) (en banc).

Today's CAAF daily journal online update included notice of a motion for enlargement of time for the Judge Advocate General of the Navy to file a certificate of review in the case. United States v. Neal, __ M.J. ___, No. 09-5004/NA (C.A.A.F. Apr. 14, 2009). The notice doesn't indicate whether Code 45 or Code 46 filed the enlargement request. Could someone in the know fill in that detail for us?

It's unusual but hardly unprecedented for a Judge Advocate General to certify to CAAF a case that the government won at the CCA level. One of the most famous military justice cases of all time -- United States v. Tempia, 16 C.M.A. 629, 37 C.M.R. 249 (1967) -- was certified to CMA by the Judge Advocate General of the Air Force after the government had prevailed before an Air Force Board of Review. A more recent example is United States v. Rodriguez, 60 M.J. 87 (C.A.A.F. 2004)--the infamous "Latin movie" case--which the Judge Advocate General of the Navy certified to CAAF after the government had prevailed before NMCCA.

There would seem to be a firm rationale for the Judge Advocate General of the Navy to certify this case, to expedite a final determination of the new Article 120's constitutionality. Of course, this case wouldn't resolve every constitutional challenge to Article 120, but more certainty is better than less certainty.

Call for papers

Pace Law School has asked us to post this call for papers:

Call for Articles, Essays, and Book Reviews: National Security and Constitutional Law
Proposals due May 15, 2009

The editors of Pace Law Review invite proposals from scholars, researchers, practitioners, and professionals for contributions to a special issue on the relationship between national security and constitutional law to be published in Winter 2010.

Pace Law School is dedicated to advancing a greater understanding among scholars and the legal community concerning the role of constitutional law in national security concerns. This law review issue will promote an ongoing discourse on the balance between constitutional rights and effective national security.

Please submit proposals of no more than 500 words by attachment to plr@law.pace.edu by May 15, 2009. All proposals should include the intended author’s name, title, institutional affiliation, contact information, and should concern issues related to the relationship between national security and constitutional law. Book review proposals should also include (a) the title and publication date of the book proposed for review; (b) a description of the importance of the book to the general topic; and (c) any other information relevant to the book or proposed review (e.g., the reviewer’s expertise or any relationship with the author). Authors are also welcome, but not required, to submit a CV. We expect to make publication offers by June 1. We encourage clear, concise, and accessible writing that will be of use to lawmakers, attorneys, and students.

Completed manuscripts of book reviews and essays will be due July 15, 2009. Completed manuscripts of scholarly articles will be due August 1, 2009.

The audio from today's oral arguments is up

I'm not going to get much sleep tonight. On top of everything else I have to do, now I'm going to devote an hour to listening to the oral argument in United States v. Matthews, No. 08-0613/AR, which is available here. The audio of today's argument in United States v. Marshall, No. 08-0779/AR, is here.

Still ranting: Revisiting the proposal to eliminate or consolidate the CCAs

I don't have much time tonight, but I wanted to add a short addendum to last night's rant calling for the elimination or consolidation of the CCAs.

Several people in the comment section wrote about whether CAAF could take up the slack if the four CCAs were eliminated. The answer is: Yes, easily.

During FY 2008, the four CCAs decided 2,515 cases. In FY 2007, they decided 3,423 cases.

Back in FY 1987, when CMA was still a three-member court, it had 3,336 docket terminations. See 26 M.J. CXVI. And in FY 1984, it terminated 4,036 cases. See 20 M.J. CXXXI. So it's apparent that CAAF could handle the current combined workload because in the past it has handled that case load.

Let's also do a bit of comparison shopping. In 2002 -- the most recent year for which I could quickly find statistics (have I mentioned I'm under the gun tonight?) -- the Fourth Circuit decided 5,356 cases. For most of that year, it had eleven judges. So CAAF has 45 percent of the judicial staffing that the 4th Circuit had. Guess what 45% of the Fourth Circuit's 2002 docket would be -- 2,435 cases, which is close to the cumulative number of cases decided by the four CCAs last year. So a five-member court could handle that level of cases, assuming it sat in three judge panels.

But in reality, the workload would be far less for CAAF than it was for the 4th Circuit. Here's something that every 4th Circuit case decided in 2002 had in common -- they all raised issues. There's no such thing as a merits submission to the 4th Circuit. Compare that to the military. Last year, 43.8% of all the cases decided by the Air Force Court were submitted on the merits. I'll bet the percentage is even higher for the Navy-Marine Corps Court. Even using that number across the four CCAs, CAAF would actually be called upon to decide only 1102 cases raising issues. It could summarily deny the rest without even cracking the ROT's cover.

But wait, there's more. No doubt some not insubstantial subset of the 56.2% of the CCA appeals with issues raised only a sentence inappropriateness claim. But CAAF doesn't have sentence appropriateness powers. If the CCAs were eliminated, sentence appropriateness would no longer be a judicial decision, but would instead be confined to CAs, discharge review and clemency and parole boards, and the President's exercise of his pardon power. So whatever percent of cases that now raise only a sentence appropriateness issue would now be no issue cases, further reducing CAAF's workload. And, of course, CAAF would no longer have to review petitions first and then rereview those cases in which it grants the petition. Rather, there would be one streamlined process that would no doubt result in summary affirmance for the great majority of cases and more searching analysis of more difficult cases, just as is now the case with the Article III courts of appeals. (Of course the factual sufficiency function would also disappear with the CCAs, but it's very rare to see a factual insufficiency claim raised that isn't accompanied by a legal sufficiency claim, so that's unlikely to change the percentage of briefed cases.)

While the legislative history of the bill that expanded CAAF's size to five judges indicated that Congress contemplated the court would sit en banc in every case, CAAF doesn't appear to actually be compelled to do so. In other words, even without a statutory change, CAAF could start sitting in panels while allowing for en banc review when appropriate -- such as to resolve splits between or among panels. If the CCAs were eliminated, CAAF should move to such a system.

So CAAF could manage its own workload simply by no longer reviewing no issue cases on its own and by moving to sit in panels.

CAAF is a highly professional court with superb resources, including an outstanding library staff, a court executive, an efficient clerk's office, a central legal staff, and a couple of in-chambers clerks and a couple of in-chambers secretaries for each judge. The court has the spare capacity to take on all of the CCAs' cases with no increase in funding.

What if, several years down the line, military justice caseloads drastically increase? That seems unlikely to happen. But if it were to happen, then we could throw money at the problem then. But the possibility of having to increase CAAF's size later (which, again, strikes me as a low-probability contingency) shouldn't lead us to waste millions of dollars annually now to preserve excess capacity. The federal government simply doesn't have the resources to do that anymore.

Finally, the issue of waivers of appellate review as a PTA term came up in the comments. As I demonstrate above, we could eliminate the CCAs and have CAAF provide appellate review for every case now reviewed by the CCAs without increasing CAAF's staffing. So it isn't necessary to allow for waiver of appellate review as a PTA term to accommodate the CCAs' elimination. That said, I favor allowing waiver of appellate review as a PTA term regardless of whether the CCAs are eliminated. And I favor eliminating the CCAs regardless of whether waiver of appellate review is allowed as a PTA term. Obviously my first choice would be a system in which waiver of appellate review is allowed as a PTA term and in which the CCAs are eliminated and all court-martial convictions can be appealed to the Court of Appeals for the Armed Forces.

CAAF issues decision distinguishing violation of a superior commissioned officer's order from violation of a lawful order

I'm under the gun tonight, so I'm not going to have a chance to comment on it. But here's a link to CAAF's opinion in United States v. Ranney, __ M.J. ___, No. 08-0596/AF (C.A.A.F. Apr. 14, 2009). CAAF splits 3-2 in ruling that the accused's act of driving after his license was revoked was a violation of a lawful order under Article 92 rather than violation of the traffic review officer's order in violation of Article 90. Judge Ryan wrote for the majority with Judges Stucky and Baker dissenting. The court ruled unanimously in rejecting a challenge to a conviction for violating a Marine gunny's order to Technical Sergeant Ranney--an Air Force E-6--not to engage in an unprofessional relationship with a female Marine E-3.

Court Martial and Trial News

Links to the latest on court martial news.

Former Pfc Steven Green MEJA trial in Kentucky. Ok, not exactly a court-martial--a point the defense is emphasizing. Very nice history of the case and preview here from the Louisville Courier-Journal. Green's case involves the alleged rape and murder of an Iraqi girl in Mahmoudiya, see prior coverage here.

Master Sgt John Hatley's continuing court-martial is covered by the AP here. Hatley is the last of the NCOs allegedly involved in the killing of four Iraqi detainees in 2007. See prior CAAFlog coverage here, 1st Sgt Mayo court-martial here and Sgt Leahy court-martial here.

Sgt Joseph Bozicevich's Art. 32 hearing for allegedly killing Staff Sgt Darris Dawson and Sgt Wesley Durbin after they planned to counsel Bozicevich for "losing a 40mm grenade for his M-203 grenade launcher, being disrespectful toward his squad leader Dawson, and for leaving behind one of his soldiers during a foot patrol." See full Army Times coverage here.

Rant: How can we justify retaining five military appellate courts in these budgetary times?

Secretary of the Air Force Michael Donley and Air Force Chief of Staff General Norton Schwartz published a remarkable op-ed in today's Washington Post. They extol the virtues of the F-22, which "is, unquestionably, the most capable fighter in our military inventory." They suggest that having more is better, but forthrightly indicate that we can't afford to buy as many as we probably want to have. (For more on the value of the F-22 and why we can't afford it, see this article by Mark Bowden from the March 2009 Atlantic.)

In these budgetary times -- when we are painfully sacrificing our military's teeth -- how can we justify the expense of maintaining five appellate courts that cling to the tip of the military's tail? Consider that at the moment, three of the five military appellate courts (ACCA, AFCCA, and CGCCA) are preparing to move . How many millions of dollars will be devoted to building new facilities for those three courts? How many millions of dollars are spent each year on the four CCAs' operating budgets? Could we find better uses for those millions of defense and homeland security dollars? Of course we can.

This is no time to maintain military entities simply because the wire diagram has included them for decades. I firmly believe that the Court of Appeals for the Armed Forces is capable of providing a one-level review of all military convictions -- just as the United States Court of Appeals for the Fourth Circuit is capable of providing a one-level review for every federal conviction in Maryland, Virginia, West Virginia, North Carolina, and South Carolina, as well as hearing appeals from federal civil cases in those states. Why should a servicemember get two levels of sub-SCOTUS appeals when a civilian gets only one? Is maintaining that two-layer review worth the millions of dollars in operating expenses and the many millions more in capital outlays that DOD and Homeland Security will have to pay in the next few years to move three of the CCAs? Also, a one-stop-shopping system -- in which CAAF would no longer itself hear cases in two stages -- would be far faster than the current system, thus saving still more money by reducing the time period servicemembers spend on appellate leave, with the resulting costs to the government (particularly for health care).

Finally, let's say I'm wrong. Let's say we really do need a two-layer appellate system. Then can't we at least consolidate the four CCAs into one CCA, thereby saving not only about two-thirds of the combined CCAs' operating costs, but also forgoing the need to build facilities for two of the three CCAs that are currently planning moves?

All of the money we would save by eliminating or combining the CCAs probably wouldn't buy one F-22 -- even if we added together all of the savings over 10 years. But I'll bet it would be enough to save some other valuable military program that contributes to DOD's war fighting capabilities.

If we are willing to sacrifice 60 of the "most capable fighter[s] in our military inventory" because they cost too much, it's time to give serious consideration to sacrificing a layer of redundancy in the military appellate process because, in these budgetary times, we can no longer afford such an extravagance.

HUGE military scholarship news: Professor Baldus and colleagues examine the military death penalty

Professor David Baldus of the University of Iowa College of Law is a giant in the field of social science and the law. He was the lead author of the statistical study at issue in McCleskey v. Kemp demonstrating "a disparity in the imposition of the death sentence in Georgia based on the race of the murder victim and, to a lesser extent, the race of the defendant." McCleskey v. Kemp, 481 U.S. 279, 286 (1987).

Now Professor Baldus and his colleagues have turned their attention to the military death penalty system. They have authored a remarkable article that will be published in the University of Michigan Journal of Law Reform. Catherine M. Grosso, David C. Baldus & George G. Woodworth, The Impact of Civilian Aggravating Circumstances on the Military Death Penalty: Another Chapter in the Resistance of the Armed Forces to the Civilianization of Military Justice, 1984-2005, __ U. Mich. J. L. Reform __ (forthcoming). The article is now available here on the Social Science Research Network. [Unfortunately SSRN is down for the weekend, but it's scheduled to be up tomorrow at 0700 EDT.]

The article analyzes an interesting evolution in the use of the current military death penalty system, which was created in 1984. While early application of the current military death penalty (1984-1990) appeared relatively indifferent to a murder's military nexus, over time the military death penalty has come to be reserved almost exclusively for murder offenses that bear a strong connection to military good order and discipline, rather than simply serving as a military alternative to a civilian capital prosecution. The article documents this evolution -- which I hadn't recognized before reading the article -- and explores its implications. The article also includes a data-rich series of appendices that will no doubt be extremely valuable to both counsel litigating capital cases and legal scholars.

This week in military justice -- 11 April 2009 edition

This week at the Supremes: There are no scheduled military justice developments at the Supremes this week. It's probably still too early to post a watch for a decision in Denedo.

This week at CAAF: CAAF will hear oral arguments in four cases this week. Tuesday's first argument will be in United States v. Matthews, No. 08-0613/AR, where the granted issue is "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." Tuesday's second oral argument is in United States v. Marshall, No. 08-0779/AR, where 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]." Wednesday's first argument is United States v. Sanders, No. 09-0013/AF, where the granted issue is "WHETHER THE MILITARY JUDGE ERRED BY ADMITTING IRRELEVANT AND HIGHLY PREJUDICIAL EVIDENCE IN VIOLATION OF R.C.M. 1001 AND MIL. R. EVID. 403." And CAAF's final argument of the week is United States v. Wiechmann, No. 09-0082/MC, where 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."

This week at the CCAs: It doesn't appear that any of the CCAs have oral arguments scheduled this week.

This week in CLE: On Tuesday at 1200, NIMJ will hold a program on openness of courts-martial at the American University's Washington School of Law.

Military pro se IFP cert petition docketed

The Supremes have docketed a new pro se IFP cert petition. Brown v. United States, No. 08-9714. CAAF's opinion in the case is published at 67 M.J. 147. CAAF held unanimously that sex can be an "advantage" for purposes of extortion.

Sgt Jermaine Nelson's counsel argues charges should be dropped

Here's an interested North County Times article reporting on efforts by Sgt Jermaine Nelson's civilian defense counsel, Joseph Low, seeking to have charges against Sgt Nelson dropped in the wake of Sgt Ryan Weemer's acquittal by a panel of officer members at Camp Pendleton on Thursday.

The charges against both, as well as their squad leader -- who was acquitted in a MEJA prosecution in U.S. district court last summer -- arise out of an incident during which the three allegedly shot and killed four unarmed detainees during the battle of Fallujah.

Navy JAG files certificate for review

The Judge Advocate General of the Navy has filed a certificate of review in United States v. Bradley raising these two issues:

I. Whether the lower court erred by finding that the military judge abused his discretion when he denied the defense motion to disqualify trial counsel from further participation in the case.

II. Whether the lower court erred in setting aside the findings and sentence based upon speculation that the trial counsels' continued participation in the case could have prejudiced Appellee, without making any finding that their continued participation did materially prejudice Appellee, as required by Article 59(a), UCMJ.

We previously discussed Bradley here.

AFCCA holds an officer can be convicted for private, consensual sexual conduct even if it's protected by Lawrence and Marcum

AFCCA's Harvey decision is significant. It involves an Air Force chaplain in Turkey who had a consensual homosexual relationship with two Turkish men. He was found guilty of conduct unbecoming an officer and gentleman for engaging in sodomy with one of the two Turkish men.

AFCCA concluded that the private, consensual sexual relationship was protected under both Lawrence v. Texas, 539 U.S. 558 (2003), and United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004). But AFCCA nevertheless affirmed the conviction. Here's how the court framed the issue: "In a case of first impression, we must decide whether conduct that is permissible and survives scrutiny under Marcum can nonetheless be proscribed as conduct unbecoming an officer and a gentleman." Yes, held the court. "Private conduct may constitute an offense under Article 133, UCMJ, and there is no requirement that the conduct be otherwise criminal."

Turning to the facts of the case, the court reasoned:

[W]e conclude that the fact that conduct may fall within a recognized liberty interest under the Constitution does not mean that the conduct cannot be proscribed under Article 133, UCMJ. Such is true even if the infringement of the liberty interest would not pass constitutional scrutiny as a violation of another punitive article, e.g., Article 125, UCMJ. This is such a case. In the case sub judice, the appellant's act of performing fellatio on a Turkish national at a time when the appellant, an officer, was serving as a representative of the United States military abroad, and at a time when the appellant had been confronted about and knew rumors abounded on and off base about his alleged homosexual relationship with another Turkish national (Mr. MH), evinced, as the trier of fact found, a degree of indecorum that disgraced and dishonored the appellant and seriously compromised his standing as an officer. In the final analysis, Article 133, UCMJ, as applied to the appellant in this case, is constitutional.

Harvey, No. ACM 36641, slip op. at 6 (footnote omitted).

As if that weren't significant enough, AFCCA then proceeded to announce another major holding. AFCCA was confronted with the question of whether the Marcum factors are questions of law to be determined by the military judge or questions of fact to be determined by the members after being instructed about them. They are the former, held AFCCA. The Marcum factors are legal "matters upon which only the military judge could rule." Id., slip op. at 7.

My guess is that this significant case will be further reviewed by CAAF. Major kudos (or, actually, lieutenant general kudos) go to the Judge Advocate General of the Air Force for certifying this subjurisdictional case to AFCCA. When CAAF either denies a petition for review in this case--thus allowing AFCCA's opinion to remain binding precedent in the Air Force--or grants the petition and establishes law for the entire military justice system, the law will be clearer than it was before. And that seems like a sound basis for a Judge Advocate General to exercise the Article 69(d) authority to refer a subjurisdictional case to a Court of Criminal Appeals. In fact, the system would likely benefit if there were more such referrals or, better yet, an accused were given a right to appeal a subjurisdictional case to a Court of Criminal Appeals.

AFCCA issues published opinion in Harvey

Here's a link to AFCCA's published opinion in United States v. Harvey, __ M.J. ___, No. ACM 36641 (A.F. Ct. Crim. App. Apr. 9, 2009). We previously discussed the case here. I hope to post a synopsis of the opinion later this evening.

NIMJ Program on Access to Military Dockets

Here is a link to a NIMJ Program on ways to remedy the problem of access to courts-martial dockets. Panelists include Lucy Dalglish, Executive Director, Reporters Committee for Freedom of the Press; Nayna Malayang, LLM Candidate, WCL & NIMJ Dean’s Fellow; Commander Stephen McCleary, Coast Guard’s Office of Military Justice; Michelle McCluer, Executive Director, National Institute of Military Justice( Moderator).

H/T to the Moderator

Weemer Acquitted

As is being reported at multiple outlets, here and here, Sgt. Ryan Weemer was acquitted this morning of all charges in relation to the killing of alleged detainees in Fallujah in 2004.

Sgt. Jermaine Nelson is the last remaining defendant in this incident, we'll have to see how that plays out. Nelson won't have the benefit of being able to suppress the tape of Weemer admitting to some portion of the incident in an employment interview with the Secret Service. Rather, Nelson will have to face his own recorded statements, in which he reportedly said that

[H]e watched Nazario become angry after finding assault rifles in the house, even though the detainees had insisted there were no weapons. On the tape, Nelson recalled Nazario shooting a kneeling captive at point-blank range, then saying: “I'm not doing all this by myself. You're doing one and Weemer is doing one.”

Weemer then pulled his 9mm sidearm and killed one of the detainees, Nelson said. “He shot him and the dude was on the ground and rolling and (Weemer) was shooting, shooting, shooting, shooting, shooting,” Nelson told the naval investigator. Afterward, Nelson said, he joined in and shot another detainee.

I don't know exactly what that tape says so I won't comment on the likely effect on referral or the trial.

Also, remaining is the issue of prosecution of Nazario, Nelson, and Weemer for refusing to testify after being granted immunity.

The Judge Advocate General of the Air Force certifies two issues in Rose

The Judge Advocate General of the Air Force certified two issues to CAAF today:

I. Whether the Air Force Court of Criminal Appeals erred in denying the United States' request that the court order an affidavit from Appellee's original military defense counsel.

II. Whether an "impression" left by civilian defense counsel that Appellee may not have to register as a sex offender amounted to an affirmative misrepresentation and led to Appellee receiving ineffective assistance of counsel.

AFCCA's opinion in the case is published at 67 M.J. 630. We discussed AFCCA's opinion here and here.

As the Gitmo Defense Shop Turns - Kuebler Reinstated

Or we could call it, "The Young and the Soon to be Jobless." What ever you call it, as reported by the Toronto Star here, LCDR Bill Kuebler was reinstated late yesterday as counsel in the Omar Khadr commission case. According to the report, Army Col. Patrick Parrish ruled that only the military judge in a commissions case may authorize removal of counsel, without reaching the merits of Chief Gitmo Defense Counsel (Air Force) Col. Peter Maciola's decision. For even more on this soap opera see the Ottawa Citizen report here and Canadian National Post Story here.

Masciola is quoted as saying he will appeal the decision, though my brief review of Commission rules says that Col. Parrish is right and only if an express conflict with the counsel's state bar licensing rules exist can the Commission CDC remove a defense counsel. See Rule 109(b)(3)(C). Otherwise, it appears Rules 109(b)(2) and 502(f) give the power to remove counsel from a case to the military judge. But that was based on a word search review so don't count that as authoritative.

AFCCA issues published sentence disparity/sentence appropriateness opinion

AFCCA doesn't normally publish its sentence appropriateness opinions. But it did so today in United States v. Anderson, __ M.J. ___, No. ACM 37517 (A.F.Ct. Crim. App. Apr. 7, 2009) (per curiam). Presumably AFCCA published the opinion because it sides with an unpublished NMCCA decision to provide an answer to this question: "In assessing whether or not [court-martial sentences in two closely related cases] are highly disparate, . . . should [the CCA] compare the appellant's adjudged and approved sentence" with the closely related case's adjudged sentence or approved sentence? Id., slip op. at 4-5. Adjudged sentence, rules AFCCA, id., slip op. at 5, thus indicating that a CCA may ignore sentence disparity created by a convening authority's reduction of the closely related case's sentence.

[DISCLAIMER: I second-seated the oral argument for the defense.]

Involuntary Reassignment of Defense Counsel

This post is not about an abstract topic, but rather a link to an actual story of a Navy LCDR that was involuntarily reassigned from his job as a defense counsel in a military commission case. See NY Times article here. While we don't usually cover commissions, the involuntary termination of a defense counsel that had formed an attorney client relationship, without consulting the client, raises enough MilJus issues that the action merits coverage. According to the NYT,

[LCDR] William C. Kuebler, who was appointed by the Pentagon to represent Omar Khadr, was reassigned on Friday after an internal inquiry into his conduct, said Michael Berrigan, the deputy chief defense counsel at the Navy base in Guantanamo.

According to other reports,

[Commissions' Chief Defense Counsel Col. Peter Masciola,] ordered Kuebler's removal Friday in order to pursue "client-centred representation," according to a statement from his office. . . . "The team representing Omar Khadr had become dysfunctional," Masciola said. He said he could not elaborate because of privacy concerns and attorney-client privilege. A source who asked not to be named said yesterday Masciola had concluded that Kuebler was "a divisive figure on the military team and failed to act in best interests of Khadr."

See Edmonton Sun report here. According to the story, "Kuebler insisted his reassignment was sparked by his criticism that [Col.] Masciola was too cosy with prosecutors." If anyone has any more information on the events or the rationale for the firing, please let us know in comments or via email.

BTW: (1) h/t to Anon for the story; and (2) for those military DCs out there that previously felt squeamish about going to the press about your case (though some deny there are any of you, see our discussion here), what say you about this move? Is this the exception that proves the rule that you can go to the press about your case or the case study that makes TDC reluctant to go to the press?

The Judge Advocate General of the Navy doesn't certify Burk

We previously discussed Code 46's successful request for more time for the Judge Advocate General of the Navy to consider whether to certify NMCCA's unpublished decision in United States v. Burk, No. NMCCA 200800146 (N-M. Ct. Crim. App. Feb. 12, 2009) (per curiam). Today's CAAF daily journal update included a notation that the United States had "filed a notice of intent not to certify this case to the Court of Appeals for the Armed Forces." United States v. Burk, __ M.J. ____, No. 09-5001/MC (C.A.A.F. Apr. 1, 2009).

Green MEJA proceedings underway

Proceedings in the capital MEJA case of United States v. Green are underway in U.S. district court in Paducah, Kentucky. As discussed in this A.P. article, jury selection began today with trial on the merits scheduled to start on 27 April.

"Steven Dale Green, a former member of the 101st Airborne Division, was accused along with four fellow soldiers of raping a 14-year-old girl and killing her and her family in Mahmoudiya, Iraq . . . ." The other accused soldiers were tried by courts-martial. But because Green had already been discharged before a criminal investigation into the incident began, he is being tried under MEJA in U.S. district court.

Spring 2009 Military Law Review now available

The Spring 2009 issue of the Military Law Review is now available here. Military justice wonks will be particularly interested in this article by Major Fansu Ku: From Law Member to Military Judge: The Continuing Evolution of an Independent Trial Judiciary in the Twenty-First Century, 199 Mil. L. Rev. 49 (2009).

Major Ku concludes that legislation providing for a permanent military judiciary is neither necessary nor desirable. She considers and rejects the proposal suggested by Professor Fred Lederer and then-LT Barbara Hundley in An Independent Military Judiciary--A Proposal to Amend the UCMJ, 3 Wm & Mary Bill of Rights J. 629 (1994). MAJ Ku argues that "current personnel practices indicate that military judges are unlikely to be influenced by their interests in future promotions and assignments." 199 Mil. L. Rev. at 62. To support this conclusion, she observes that "eligibility requirements preclude most Army Judge Advocates from applying for judgeships until late in their careers." Id. Additionally, "no concrete evidence supports a threat to military judges' independence, by TJAG or anyone else." Id. at 63.

She also rejects the notion that military judges should be removed from normal military personnel policies, arguing that "the status of military judges as commissioned officers in the armed forces is vital." Id. at 65. She makes an interesting argument that if military judges were cloistered away in judicial duties, Weiss might suggest that military judges' duties are no longer germane to being a military officer, thus possibly requiring a second appointment (which would have to be made by SECDEF or the President) to satisfy the Appointments Clause. Id. at 70 (citing Weiss v. United States, 510 U.S. 163 (1994)).

While rejecting major changes of the sort suggested by Professor Lederer, MAJ Ku points to several lesser changes that might be helpful in promoting the military judiciary's independence. She writes favorably of the Army's decision to grant military judges a fixed term of office by regulation. See id. at 71-74; see Army Regulation 27-10, Military Justice, ¶ 8-1.g (2002). This section of the article, however, appears to contain an error. MAJ Ku writes, "None of the other services currently provide for tenure or a fixed term of office for their judiciary." Id. at 73. But as the Air Force Court has observed, "the Coast Guard provides for 3-year assignments for military judges except when they are reassigned 'under the normal personnel assignment process based on the needs of the service.' Commandant Instruction M5810.1D, Military Justice Manual (17 Aug 2000), ¶ 6.E." United States v. Paulk, 66 M.J. 641, 642 n.2 (A.F. Ct. Crim. App.), petition denied, 67 M.J. 169 (C.A.A.F. 2008).

MAJ Ku also writes favorably about the Army's recently established judicial apprenticeship program. 199 Mil. L. Rev. at 74-77. She then offers the Navy JAG Corps' military justice litigation career track as a model to be emulated and discusses the Navy's judicial screening board and new position of Chief Judge of the Navy. Id. at at 78-83. She then discusses a proposal that the Code Committee is considering to expand military judges' contempt powers. Id. at 83-85. Finally, she sets out a possible career path for those who want to become Army military judges. Id. at 85-86.

CAAF holds military judge erred in applying Article 32 waiver, but holds the error is harmless

The facts of United States v. Von Bergen, __ M.J. __, No. 03-0629/AF (C.A.A.F. Apr. 2, 2009), are so unusual that the case doesn't seem destined to receive many entries in Shepard's Citations.

Airman First Class Von Bergen entered into a PTA, under which he waived his Article 32 investigation, and pleaded guilty to a 2252A child pornography offense (as well as another child pornography offense). CAAF reversed due to its conclusion in Martinelli that 2252A doesn't apply extraterritorially. United States v. Von Bergen, 62 M.J. 370 (C.A.A.F. 2005) (order). A1C Von Bergen was retried, but this time under Article 134 clauses (1) and (2), rather than (3). This time A1C Von Bergen pleaded not guilty and sought an Article 32 investigation. The military judge held that Von Bergen wasn't entitled to a 32 due to his earlier waiver. AFCCA affirmed.

Wrong, ruled CAAF. Judge Baker wrote for the majority. Judge Ryan concurred in the result.

"First and foremost," CAAF ruled, "Appellant's [original] plea was improvident as a matter of law, which had the effect of canceling the pretrial agreement according to its terms." Von Bergen, No. 03-0629/AF , slip op. at 9. Second, "the effect of the rehearing and Appellant’s subsequent withdrawal from the agreement was to place the parties in their pretrial status quo ante." Id., slip op. at 9-10. CAAF explained that it couldn't "uphold an offense under Article 134(1) or (2), UCMJ, which, as explained in United States v. Medina, 66 M.J. 21, 26 (C.A.A.F. 2008), do not necessarily constitute lesser included offenses of Article 134(3), UCMJ. As a result, Appellant’s plea was improvident." Id., slip op. at 10. The court continued, "Although improvidence of the plea upon appellate review was not an express basis for cancellation in the pretrial agreement, this Court's decision had the same effect as if the military judge had not accepted Appellant's plea, which was an express basis for cancellation." Id., slip op. at 10-11.

Additionally, CAAF explained, "when this Court set aside Appellant's plea and the amended specification was referred for rehearing, Appellant's subsequent withdrawal from the agreement meant that the court-martial process should have begun anew." Id., slip op. at 11. The court went on to conclude, however, that the failure to hold an Article 32 investigation before the second court-martial was harmless error. Id., slip op. at 13-14.

Judge Ryan wrote separately due to her stricter separation of Article 134 (3) offenses from Article 134 (1), and (2) offenses. She reasoned, "The specification at issue in this appeal was originally charged and pleaded to as a violation of clause 3 of Article 134, UCMJ. . . . On rehearing, the convening authority amended the original specification from alleging a violation of clause 3 of Article 134, UCMJ, to alleging a violation of clauses 1 or 2 of Article 134, UCMJ, and referred this new specification to a general court-martial." Because the Article 134(1) and (2) allegation at the second court-martial was a distinct offense from the Article 134(3) allegation at the original court-martial, "Appellant’s waiver of an Article 32, UCMJ, pretrial investigation pursuant to the PTA could not constitute a waiver for an offense the PTA did not address."

CAAF summarily disposes of case presenting disconnect between court-martial's actual findings and SJAR's & CMO's recitation of findings

On 6 November, CAAF granted review of this issue:

WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED BY AFFIRMING A FINDING OF GUILTY OF COMMUNICATING INDECENT LANGUAGE WHERE THE STAFF JUDGE ADVOCATE'S RECOMMENDATION AND THE COURT-MARTIAL PROMULGATING ORDER STATED THE OFFENSE AS ATTEMPTED COMMUNICATION OF INDECENT LANGUAGE. SEE UNITED STATES v. DIAZ, 40 M.J. 335 (C.M.A. 1994).

United States v. Thomas, 67 M.J. 187 (C.A.A.F. 2008).

Last Tuesday, CAAF summarily disposed of the case, reversing NMCCA's decision in relevant part and remanding the case to NMCCA for reassessment of the sentence. CAAF reasoned: "Under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866(c) (2000), the Court of Criminal Appeals may act only with respect to the findings as approved by the convening authority. Under these circumstances, we conclude that, in affirming a finding of guilty of communicating indecent language, the Court of Criminal Appeals exceeded its authority. See United States v. Diaz, 40 M.J. 335 (C.A.A.F. 1994)." United States v. Thomas, __ M.J. __, No. 08-0738/NA (C.A.A.F. March 31, 2009) (summary disposition).

CAAF posts Judicial Conference materials online

Here's a neat feature on CAAF's web site. CAAF has posted lecture materials from four of the presentations at this year's Judicial Conference.

This week in military justice -- 5 April 2009 edition

This week at the Supreme Court: I know of no expected military justice activity at the Supremes this week.

This week at CAAF: CAAF has no scheduled oral arguments this week.

This week at the CCAs: ACCA will be hearing oral argument on Wednesday in United States v. McNaughton, No. ARMY 20090089, on this assignment of error: "The military judge erred as a matter of law when she dismissed Specification 2 of Charge II on the grounds that assimilation of a state aggravated incest statute is preempted by Article 120, UCMJ."

This week at the court-martial trial level: The court-martial of Sgt Ryan Weemer for allegedly shooting an unarmed detainee during combat operations in Fallujah will likely go to the members early this week.

This week in CLE: On Thursday, the JAA American Inn of Court will present a lecture by Major General Daniel V. Wright, the Deputy Judge Advocate General of the Army, called "Civility and Professionalism in the Courts."

Audio for NMCCA's Delgado argument

Here's a link to the audio of NMCCA's oral argument in United States v. Delgado, an Article 46 case. (I'm listening to it right now.)

Military judge reportedly asks DOJ to prosecute Nazario for refusing to testify at Sgt Weemer's trial

This North County Times article providing a recap of the first week of Sgt Weemer's court-martial for allegedly murdering an unarmed detainee in Fallujah includes the following particularly interesting information:

[T]he military judge presiding over the case, Lt. Col. Thomas Sanzi, announced he was asking the Justice Department to prosecute Weemer's squad leader at Fallujah for refusing to testify.

Former Sgt. Jose L. Nazario Jr. repeatedly declined to answer a prosecutor's questions when called to the stand Thursday. Nazario, who was Weemer's superior in Fallujah, was tried and acquitted last year for his role in the incident.

That trial of Nazario was in U.S. district court.

Supremes solicit Solicitor General's response to Wuterich cert petition

Yesterday the Supremes asked the S.G. to respond to the cert petition in Wuterich v. United States, No. 08-1133. [DISCLAIMER: I'm petitioner's counsel of record.]

Quick update

Sorry, I've been derelict in my blogging duties. Let me give a couple of quick updates, which I'll expand upon over the weekend.

Most importantly, CAAF released an opinion yesterday in United States v. Von Bergen, __ M.J. ___, No. 03-0629/AF (C.A.A.F. Apr. 2, 2009). In a highly fact-specific decision, CAAF held it was error not to give the accused a new 32 after the original charges went belly up, but held that the error was harmless.

CAAF's Tuesday daily journal included an interesting summary reversal of a Navy-Marine Corps Court decision. United States v. Thomas, __ M.J. ___, No. 08-0738/NA (C.A.A.F. March 31, 2009).

Gray habeas petition filed

Counsel for Ronald Gray, who is under a presidentially approved death sentence, filed his habeas petition yesterday in U.S. District Court for the District of Kansas. I've posted the habeas petition here. It raises the following 18 claims for relief:

CLAIM ONE

DURING PEACETIME, ALLOWING A MEMBER OF THE ARMED FORCES TO BE SENTENCED TO DEATH BY A COURT-MARTIAL PANEL OF LESS THAN TWELVE, WHEN THERE IS NO FIXED PANEL SIZE, PROMOTES UNRELIABILITY, UNDERMINES THE RIGHT TO AN IMPARTIAL FACT FINDER AND SENTENCER AND CREATES AN ARBITRARY FACTOR IN VIOLATION OF THE FIFTH, SIXTH AND EIGHTH AMENDMENTS

CLAIM TWO

IN A CAPITAL COURT-MARTIAL DURING PEACETIME, THE CONVENING AUTHORITY'S POWER TO HAND-PICK MILITARY SUBORDINATES – WHOSE CAREERS HE CAN DIRECTLY AND IMMEDIATELY AFFECT AND CONTROL – TO SERVE AS COURT MEMBERS VIOLATES THE FIFTH, AND EIGHTH AMENDMENT

CLAIM THREE

AN APPELLATE COURT CAN NOT ASSUME THAT THE TRIAL JUDGE MADE A DETERMINATION AS TO WHETHER TRIAL COUNSEL'S EXPLANATION WAS CREDIBLE OR PRETEXTUAL PURSUANT TO BATSON V. KENTUCKY, 476 U.S. 79 (1986), WITHOUT CONDUCTING A FURTHER HEARING ON THE ISSUE, WHEN THE TRIAL JUDGE RULED ON PETITIONER'S BATSON CLAIM WITHOUT EVEN REQUIRING THE PROSECUTOR TO PROVIDE A RACE NEUTRAL EXPLANATION FOR THE CHALLENGE.

CLAIM FOUR

PETITIONER WAS DENIED THE RIGHT TO A FAIR AND IMPARTIAL JURY WHEN THE MILITARY JUDGE IMPROPERLY GRANTED GOVERNMENT CHALLENGES FOR CAUSE AGAINST TWO MEMBERS

CLAIM FIVE

THE PEREMPTORY CHALLENGE PROCEDURE IN THE MILITARY JUSTICE SYSTEM, WHICH ALLOWS THE GOVERNMENT TO REMOVE ONE JUROR WITHOUT CAUSE, IS UNNECESSARY AND SUBJECT TO ABUSE IN ITS APPLICATION AND WAS ABUSED IN PETITIONER'S CASE

CLAIM SIX

PETITIONER WAS DENIED HIS RIGHTS UNDER THE FIFTH, SIXTH AND EIGHTH AMENDMENTS BECAUSE THE PANEL MEMBER SELECTION POOL IN PETITIONER'S CASE DID NOT INCLUDE ANY FEMALES.

CLAIM SEVEN

THE MILITARY JUDGE IMPROPERLY DENIED A DEFENSE MOTION FOR A MISTRIAL BASED ON TRIAL COUNSEL'S COMMENTS ON PETITIONER'S RIGHT TO REMAIN SILENT

CLAIM EIGHT

THE MILITARY JUDGE PRECLUDED THE SENTENCING PANEL FROM CONSIDERING PETITIONER'S BACKGROUND AS A BASIS FOR A SENTENCE LESS THAN DEATH IN VIOLATION OF THE FIFTH, SIXTH AND EIGHTH AMENDMENTS

CLAIM NINE

ARTICLE 18 OF THE UCMJ AND R.C.M. 201(F)(l)(c), WHICH REQUIRE TRIAL BY MEMBERS IN A CAPITAL CASE, VIOLATES THE FIFTH, SIXTH AND EIGHTH AMENDMENT GUARANTEE OF DUE PROCESS AND A RELIABLE VERDICT

CLAIM TEN

R.C.M. 1004'S PROHIBITION AGAINST GUILTY PLEAS IN CAPITAL COURT-MARTIAL DEPRIVED PETITIONER OF A CRITICAL MITIGATING FACTOR AND CAUSED OTHER IRREPARABLE PREJUDICE IN VIOLATION OF THE FIFTH, SIXTH AND EIGHTH AMENDMENTS

CLAIM ELEVEN

PETITIONER WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AT HIS CAPITAL COURT-MARTIAL

CLAIM TWELVE

PETITIONER'S APPELLATE COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE FIFTH, SIXTH, AND EIGHTH, AND FOURTEENTH AMENDMENTS

CLAIM THIRTEEN

THE MILITARY JUDGE IMPROPERLY INSTRUCTED THE PANEL JURY IN VIOLATION OF PETITIONER’S FIFTH, SIXTH, AND EIGHTH, AMENDMENT RIGHTS

CLAIM FOURTEEN

THE MILITARY JUDGE DENIED RESOURCES NECESSARY TO RETAIN EXPERT SERVICES IN CRIMINAL INVESTIGATION TO ASSIST THE DEFENSE IN VIOLATION OF THE FIFTH, SIXTH AND EIGHTH AMENDMENTS

CLAIM FIFTEEN

THE AGGRAVATING FACTOR STATED IN R.C.M. 1004(c)(7)(I) IS VAGUE, FAILS TO SUFFICIENTLY CLARIFY THE FACTOR INVOLVED, AND DOES NOT NARROW THE CLASS OF PERSONS ELIGIBLE FOR THE DEATH PENALTY, AND IS THEREFORE INVALID UNDER THE EIGHTH AMENDMENT

CLAIM SIXTEEN

BASED ON THE SUPREME COURT'S REASONING IN RING V. ARIZONA, 536 U.S. 584 (2002), CONGRESS UNCONSTITUTIONALLY DELEGATED TO THE PRESIDENT THE POWER TO ENACT THE FUNCTIONAL EQUIVALENT OF ELEMENTS OF CAPITAL MURDER, A PURELY LEGISLATIVE FUNCTION

CLAIM SEVENTEEN

THE PROPORTIONALITY REVIEW IN THIS CASE WAS INSUFFICIENT AS A MATTER OF LAW IN VIOLATION OF THE FIFTH, SIXTH AND EIGHTH AMENDMENTS

CLAIM EIGHTEEN

THE MANNER IN WHICH THE GOVERNMENT WOULD CARRY OUT PETITIONER'S EXECUTION VIOLATES THE EIGHTH AMENDMENT

Col Murphy Guilty

Here is a link to an Air Force Times article about Col. Murphy's conviction by members on Wednesday. As reported,

A jury of officers convicted Col. Michael D. Murphy of three counts of conduct unbecoming an officer and a gentleman, one count of failing to obey a lawful order and three counts of larceny related to travel expenses for teaching engagements outside the service.

Because the White House military Office refused to release Col Murphy's classified military record for use at sentencing, he will face no punishment. See coverage of that ruling here.

While Col. Murphy won't face punishment at court-martial, I suspect this isn't the last time he'll need a licensed trial lawyer in the military.

2009 Jobs for JAGs program

The FBA's Pentagon Chapter has asked us to post the announcement and pamphlet (which includes the speakers and schedule) for the 2009 Jobs for JAGs program, which we are happy to do. The program will be held on 8 May at the Army & Navy Club.

The announcement explains:

This full-day event is designed for junior and senior military attorneys transitioning from active duty to civilian or government practice. The seminar will feature panels of top attorneys from the Department of Justice and other government agencies, as well as from private practice and industry, to share tips and insights on finding employment. Many of the panelists are retired or former Judge Advocates and will share their tips on selling your skills as a JAG to government employers, law firms, and corporations.

The cost is $40 on or before 1 May and $80 afterwards, including at the door.

ACCA axes negligent possession of child pornography conviction

In addition to offenses arising from mishandling classified information, Major Amazaki pleaded guilty to and was convicted of a spec that alleged he violated Article 133 by "wrongfully and dishonorably possess[ing] a 100 ZIP Diskette, which contained 8 images of child pornography, . . . by possessing over 150 images of pornography by negligently failing to note that there was child pornography among such images, by negligently failing to eliminate said images of child pornography from the Diskette, and by negligently leaving said images of child pornography on the Diskette in his place of residence in such a manner that other persons could easily access said images of child pornography." In a published decision authored by Judge Ham, ACCA held yesterday that MAJ Amazaki didn't have fair notice that such negligent possession of child pornography was a crime. United States v. Amazaki, __ M.J. ___, No. ARMY 20070676 (A. Ct. Crim. App. March 31, 2009).

Judge Ham reasoned:

Appellant was not on notice that he was subject to criminal prosecution by failing to discover that, unbeknownst to him and without requesting, seeking, or searching for such images, a diskette a friend gave him contained illegal child pornography. Specifically, we hold appellant was not on notice the charged conduct . . . would subject him to criminal sanction under Article 133, UCMJ. Further, we disagree appellant was on notice he had any duty to use due care to review the diskette his friend provided to "make sure there was nothing illegal" on it. There is no custom, regulation, or otherwise to the contrary.

Id., slip op. at 10 (footnote omitted).

She concluded that "no reasonable officer would recognize that appellant’s unwitting conduct would bring dishonor or disrepute upon himself or his profession. To the contrary, any reasonable officer would doubt these acts constitute conduct unbecoming an officer." Id., slip op. at 11.

Amended Art. 120 Constitutional Says Unanimous, En Banc NMCCA

Here is a link to NMCCA's unanimous, en banc opinion in United States v. Neal, __ M.J. ___, No. NMCCA 200800746 (N-M. Ct. Crim. App. March 31, 2009) (en banc). Judge Eric Price, writing for a unanimous court, in BLUF format, tells us, "[W]e conclude that in this aggravated sexual contact prosecution, proof of the element of force does not require proof of 'lack of consent,' and that the affirmative defense of consent does not unconstitutionally shift the burden of proof to the defense. . . . Accordingly, we grant the Government’s interlocutory appeal."

Amazingly the opinion is only 13 pages long and the constitutional analysis doesn't start until page 9. In those 4 short pages, the Court, reversing my friend CDR DeOliveira, finds Art. 120 constitutional, holding that (1) because the "Government is not required to prove 'lack of consent' as an identified or implied element of aggravated sexual contact," there is no burden shifting violation of the Due Process Clause and (2) a saving construction of the statute is in order to avoid the constitutional question of excluding evidence to negate an element of the offense. To avoid the constitutional question raised by interpreting Art. 120 as excluding evidence of lack of consent to negate the element of force in Art. 120, Judge Price writes,

We interpret the words “consent [is] not an issue” as highlighting Congress’ removal of “lack of consent” as an element that must be proven by the Government. Art. 120(r), UCMJ. We also interpret the language “except [it is] an affirmative defense for the sexual conduct in issue in a prosecution under subsection [(e) aggravated sexual contact]” as reflecting establishment of the affirmative defense of consent to identified offenses including “aggravated sexual contact.” Art. 120(r), UCMJ. To be clear, this construction is necessary to ensure the accused due process of law, as the finder of fact must be free to consider relevant, admissible evidence, including evidence going to the affirmative defense of consent, in determining whether there is a reasonable doubt about the sufficiency of the Government’s proof as to the elements of the offense.

I will leave additional editorial and synopsis to CAAFlog tonight.