This week in military justice -- 31 May 2009 edition

This week at the Supremes: Tomorrow is an opinion announcement day. All eyes will be on SCOTUS at 1000 to see if it releases the Denedo opinion.

This week at CAAF: CAAF will not be hearing oral arguments this week.

This week at the CCAs: None of the CCAs is scheduled to hear oral argument this week.

DOD witness identified for Supreme Court cert jurisdiction hearing

DOD's hearing calendar now indicates that DOD's witness at Friday's House hearing on the Equal Justice for Our Military Act will be "Army-AJAG/MLO," which I assume stands for Army Assistant Judge Advocate General for Military Law and Operations. Does anyone know who that is?

h/t NBM3

Degraded comments?

Am I the only one who thinks that, as of late, the comments have become increasingly shrill and/or juvenile?

I've stopped reading the comments on every blog I read except for this one. (Of course, my favorite blog -- SCOTUSblog -- no longer even permits comments.) There are certainly still worthwhile comments on CAAFlog, including (but not limited to) those by JO'C and Sir Cloudesley. But I'm very near the point of thinking that picking out those nuggets is no longer worth the time investment to wade through all the invective.

I believe in the free marketplace of ideas and very rarely delete comments. But I deleted one tonight that treated a fine public servant with incredible (and vulgar) disrespect. I sincerely hope that the anonymous poster who wrote that comment was neither a military officer nor an attorney, because each of our dual professions demands better of us than that.

Can we all please try to elevate the level of discourse to reinstate a useful dialogue in the comment section? And I strongly encourage individuals to post using their own names.

I'll stand by now for the barrage of rhetorical spitballs that normally follows a call for civility on the web.

BIG news: Rodriguez files cert petition

Yes, that Rodriguez. United States v. Rodriguez, 67 M.J. 110 (C.A.A.F. 2009).

The cert petition was filed on Wednesday. Rodriguez v. United States, No. 08-1465. The SG's response is due 29 June. I haven't seen the cert petition, so I don't know what the QP is. But I have serious doubts that the case falls within the Supremes' statutory cert jurisdiction, since CAAF vacated the grant of review and dismissed the petition. Of course, we'll probably never know for sure. In all likelihood, the SG will simply waive the United States' right to file a response.

I'll be at the Supremes on Monday; I'll try to get a copy of the cert petition then. In the meantime, if anyone has an electronic copy, please send it to us at caaflog@caaflog.com.

SCOTUS extends SG's response period in Wuterich

As we previously discussed, the Supremes have called for a response from the SG to the cert petition in Wuterich v. United States, No. 08-1133. [And, as I've previously disclosed, I'm counsel of record for petitioner in the case.] Yesterday, the Supremes extended the SG's response period to 6 July.

House Judiciary Committee confirms 5 June hearing on H.R. 569, the Equal Justice For Our Military Act of 2009

The House Judiciary Committee's announcement that its Subcommittee on Courts and Competition Policy will hold a hearing at 1000 on Friday, 5 June on H.R. 569, the Equal Justice for Our Military Act, is available here. The hearing will be held in Room 2141 of the Rayburn House Office Building.

The hearing will be webcast here.

h/t NBM3

Fascinating published AFCCA opinion

AFCCA today issued a fascinating published opinion, which I've posted here. United States v. Nerad, __ M.J. ___, No. ACM 36994 (A.F. Ct. Crim. App. May 29, 2009). Senior Judge Francis wrote for a unanimous panel.

Senior Airman (SrA) Nerad was carrying on an adulterous affair with a 17-year-old. But for the fact that he was married, it would have been legal under both military and the relevant civilian law for SrA Nerad to have sex with her. His 17-year-old lover e-mailed to SrA Nerad nude and partially nude pictures of herself. He also took nude pictures of her, including some while they were engaged in sex acts.

Because his lover was younger than 18, SrA Nerad's possession of these images violated 18 U.S.C. § 2256(1). Thus, as AFCCA explains, "the appellant was in the unique position of having a relationship with someone he could legally see naked and, but for his existing marriage, legally have sex with, but could not legally possess nude pictures of her that she took and sent to him." Nerad, No. ACM 36994, slip op. at 5.

AFCCA observes: "Having considered the entire record, we conclude that the appellant's possession of the photos under these circumstances is not the sort of conduct which warrants criminal prosecution for possessing child pornography and that this conviction unreasonably exaggerates the criminality of his conduct." Id. The central question in Nerad was whether AFCCA could do anything about what it viewed as this unjust conviction. Yes, held AFCCA. The court concluded that Article 66 authorizes a CCA to set aside a conviction even where that conviction is legally sound and factually sufficient. The court thus assumes a kind of uber-prosecutorial discretion, authorizing it to void a conviction essentially on equity grounds.

AFCCA starts with the plain language of Article 66(c), which provides that a CCA "may affirm only such findings of guilty and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved." Id. (quoting Article 66(c), UCMJ) (emphasis supplied by AFCCA). Relying on this language, AFCCA holds that "it is clear that we can overturn a finding or sentence, even if it is correct in law and fact, if we find that it should not be approved." Id.

AFCCA then turns to Article 66's legislative history and concludes that it supports its construction of Article 66(c)'s language. Amusingly, the court relies in part on the Judge Advocate General of the Army's testimony to the House Armed Services Committee in 1949 complaining that the proposed Article 66(c) gave the Boards of Review too much power. Id., slip op. at 6-7.

After concluding that it has unconstrained discretion to overturn a finding of guilty, AFCCA proceeded to exercise that discretion:

[W]e find that under the unique circumstances of this case, the charge of possession of child pornography to which the appellant pled and was found guilty, though technically accurate, unreasonably exaggerates the criminality of the appellant's actions. That is particularly true given the fact that a conviction for child pornography would require . . . the appellant to register as a sex offender and the significant consequences of such registration, including the restrictions common to most states on where those registered may reside within any given community.

Id., slip op. at 7.

AFCCA provided no sentence relief. But, as suggested by its discussion of collateral consequences, merely setting aside the finding of guilty to the child pornography offense is quite meaningful.

NMCCA sets aside child porn distribution conviction in published decision

NMCCA today issued an important published opinion setting aside a finding of guilty to distribution of child pornography under 18 U.S.C. § 2252A(a)(2). United States v. Craig, __ M.J. ___, No. NMCCA 200800716 (N-M. Ct. Crim. App. May 28, 2009). Chief Judge O'Toole wrote for a unanimous panel.

NMCCA framed the issue in Craig as "whether 'posting an image' alone may constitute distribution." Id., slip op. at 5. Petty Officer Craig pleaded guilty to the child pornography distribution charge. The providence inquiry established that others could download a child pornography image from Petty Officer Craig's computer via LimeWire. But Petty Officer Craig was unaware of whether anyone had actually done so. NMCCA held that absent such an actual download, no offense is committed under § 2252A(a)(2). However, the court observed, making an image of child pornography available for download does violate other "statutory prohibitions against promoting or offering child pornography, and against its attempted distribution. See §§ 2251(d), 2252A(a)(3)(B), 2252A(a)(6), and 2252A(b)." Id., slip op. at 6.

NMCCA provided no sentence relief, reasoning that the facts that led to the distribution conviction would have been admissible in sentencing even without the finding of guilty. Id., slip op. at 7. The military judge sentenced Petty Officer Craig to confinement for 18 months, reduction to pay grade E-1, and a bad-conduct discharge.

DOD web site indicates House Judiciary subcommittee will hold hearing on military justice certiorari bill next Friday

Norbert MacLean is reporting on his blog that a DOD website has revealed that a House judiciary subcommittee will hold a hearing on the Equal Justice for Our Military Act, H.R. 569, next Friday, 5 June. The bill would expand court-martial convicts' access to the Supreme Court.

DOD's witness at the hearing is listed as "TBD." During the Bush Administration, DOD opposed a similar bill. It will be interesting to see whether DOD under President Obama takes a different view of the legislation. Interestingly, as reflected by this report, DOD General Counsel Jeh Johnson is a former member of the National Institute of Military Justice's board of advisors. [DISCLAIMER: so am I.] Mr. MacLean's blog post indicates that NIMJ supports the bill.

ACCA holds an accused's statements dissing the Army are admissible aggravation evidence in Article 86 case

ACCA issued a published opinion yesterday, holding that the military judge correctly overruled a defense objection to the admissibility during the government's case in aggravation of the accused's statements expressing disdain for the Army. United States v. Scheuerman, __ M.J. ___, No. ARMY 20080304 (A. Ct. Crim App. May 26, 2009). Judge Sullivan wrote for the majority.

ACCA reasoned: "Rule for Court-Martial 1001(b)(4) has a 'rather broad ambit.' United States v. Stephens, M.J. , slip op. at 4 (C.A.A.F. 12 March 2009). Appellant's poor attitude toward military service, which, in part, motivated his multiple AWOL periods, is a circumstance surrounding his offenses." Id., slip op. at 4. Characterizing the Army as the victim of the accused's Article 86 offenses, ACCA maintained that "[e]ssentially, appellant repeatedly made derogatory remarks about his victim and now complains those remarks should not be considered in his sentencing." Id., slip op. at 5.

No Chessani Certification

According to one source, the government may have decided not to go forward with certification of the LtCol Chessani case (the officer charged with failing to move the Haditha investigations). As we reported, here, the time for certification expires Friday, so this is likely a good lead. If you can confirm the report or have other intel on the case, please email us at caaflog@caaflog.com or noman@caaflog.com. No word on what the convening authority will do with the case now.

Fairley and Crotchett Writs

Anyone have any idea what the withdraw of the extraordinary writs in In re Fairley and In re Crotchett was all about? Has anyone seen the Fairley decision by NMCCA?

As we previously reported, both cases arise from rulings by military judges finding Art. 120 unconstitutional, including Code 46 alum LtCol Ray Beal. United States v. Fairley, which also features language addressing Apprendi v. New Jersey, was apparently reversed based on Crockett in a one line opinion [h\t to CS], see reports here, here and here. United States v. Crotchett was decided May 12, see reports here, here, and here.

Art. 32 Today in Air Force Euthanasia Case

The Houston Chronicle reports, here, that the Air Force will hold an Art. 32 hearing today in the case of an Air Force nurse that allegedly killed three terminally ill patients by administering lethal doses of drugs. Our previous report identified two alleged murders, here, so the delay since March is probably related to an on going investigation.

CAAF grant

CAAF granted review of these two issues today:

I. Where the military judge found that Appellant and his wife had a private conversation while married and not separated, was the military judge correct that Appellant could claim the privilege under Mil. R. Evid. 504 only as to his statements during that conversation but not to his wife's as well.

II. Whether the Air Force Court of Criminal Appeals erred in finding there was no harm after overturning the military judge's ruling that Appellant's act of showing his wife that he had deleted the pictures he said he would was not communicative and therefore not privileged under Mil. R. Evid. 504.

United States v. Durbin, __ M.J. ___, No. 09-0380/AF (C.A.A.F. May 26, 2009).

Sotomayor to SCOTUS?

CNN and MSNBC are reporting that President Obama will nominate 54-year-old federal appeals court judge Sonia Sotomayor to replace retiring Justice David Souter.

Sotomayor, who would become the first Hispanic member of the Court if confirmed, was appointed to the federal bench by President George H.W. Bush in 1992 and to the 2d Circuit Court of Appeals by President Clinton in 1997. She was widely considered a leading candidate when the Supreme Court vacancy was announced, but was the target of harsh criticism from mostly anonymous sources early on in the selection process.

UPDATE: Additional sourcing on the nomination can be found here. The last couple of sentences are interesting: I'd never thought of Justice Cardozo as being Hispanic; but according to the article, "some scholars contend" that he was. It would seem to be a fairly simple question to resolve, but apparently there's some doubt.

CAAF assesses petitions' timeliness

We previously looked at CAAF's order from last Wednesday indicating that blown petition deadlines may lead to disciplinary proceedings against appellate defense counsel. United States v. Angell, __ M.J. ___, No. 09-0098/AR (C.A.A.F. May 20, 2009). It turns out that Wednesday's daily journal entries included quite a bit more action on the petition timeliness front.

In seven other cases, arising in various procedural postures, CAAF kicked out-of-time petitions. (United States v. Tuberville, No. 08-0612/AF; United States v. Greenwood, No. 08-0618/AF; United States v. McCarns, No. 08-0653/AR; United States v. Thomas, No. 08-0688/AR; United States v. Mendoza, No. 09-0097/AR; United States v. Valentine, No. 09-0144/AR; United States v. Cox, No. 09-0291/AF).

But in another three cases in which the petition for grant of review was filed more than 60 days after the relevant CCA's opinion, CAAF accepted the petition because the neither the actual service nor constructive service clock had yet expired. In United States v. Espisito, No. 08-0547/NA, CAAF concluded that service on the appellant at the brig where she was no longer confined was insufficient to constitute constructive notice. In United States v. McClory, No. 09-0072/AR, CAAF concluded that mailing ACCA's opinion to the appellant's permanent address wasn't sufficient to constitute constructive service where that wasn't the address that the appellant provided on his appellate rights form. Similarly, in United States v. Sanga, No. 09-0177/AR, CAAF found that mailing ACCA's opinion to an address different than the one on the appellate rights form was insufficient to constitute constructive service.

Chessani watch

If I calculate correctly, the Judge Advocate General of the Navy's deadline for certifying LtCol Chessani's case to CAAF is this Friday. We'll be keeping a lookout for any action in the case. If anyone has any intel, please let us know. (As always, you can reach us at caaflog@caaflog.com.)

NMCCA's unpublished decision is available here. United States v. Chessani, No. NMCCA 200800299 (N-M. Ct. Crim. App. March 17, 2009). We discussed that opinion here. We discussed NMCCA's denial of the government's request for en banc reconsideration here and here.

Foster follow-up

This past week's Marine Corps Times has an article following up on the Foster case. Gidget Fuentes, The Waiting Game, Marine Corps Times, May 25, 2009, at 26. (Some of our previous discussions of the Foster case are here, here, and here.) Unfortunately, I can't find the article online for non-Marine Corps/Air Force/Navy/Army Times subscribers.

The article indicates that the Commanding General of the 1st Marine Logistics Group has decided against any further court-martial of Sgt Brian W. Foster, whose convictions were overturned by NMCCA in February. United States v. Foster, No. NMCCA 200101955 (N-M. Ct. Crim. App. Feb. 17, 2009).

And the article sets out Sgt Foster's frustrating experiences trying to get the pay and allowances to which he is entitled. For example, DFAS has paid him as a private -- rather than a sergeant -- since his release from the USDB. On the positive side of the ledger, the article quotes Sgt Foster indicating that his current command -- Marine Corps Mobilization Command in Kansas City -- has been helpful to him in trying to resolve his pay and status issues. (DISCLAIMER: As many of you know, in my Reserve capacity, I belong to Marine Corps Mobilization Command.)

This week in military justice -- 24 May 2009 edition

This week at the Supremes: We're ordering our Denedo lookout aloft. Tuesday is an opinion announcement day. It is also the first announcement day when I think there's a chance that Denedo might come out. (Look at the three opinions the Court released on 4 May. Two were argued on 24 February, one on 25 February, and one (Arthur Anderson LLP v. Carlisle) on 4 March. Arthur Anderson was a split decision (6-3); I expect Denedo will be split as well. On Tuesday, one more day will have elapsed since Denedo was argued than passed between the argument and decision in Arthur Anderson.) Each of the five Mondays in June is also a scheduled opinion announcement day.

This week at CAAF: CAAF has no scheduled arguments this week. I'll be checking CAAF's oral argument page this week to see whether, as I suspect will happen, CAAF inserts an argument in United States v. Neal, No. 09-5004/NA, into this term's schedule. (For more on Neal, see, e.g., here.) This Wednesday afternoon, CAAF will be the site of the Pentagon Chapter of the FBA's end o' oral argument season reception. See here for more details.

This week at the CCAs: On Thursday, ACCA will hear oral argument in United States v. Vosicky, No. 20070874. Here's the assigned error that's being argued:

THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE APPLIED AN INCORRECT HEIGHTENED STANDARD TO WITNESS PRODUCTION WHICH DENIED APPELLANT HIS CONSTITUTIONAL AND STATUTORY RIGHT UNDER THE SIXTH AMENDMENT TO THE CONSTITUTION, RULE FOR COURTS-MARTIAL 703, AND ARTICLE 46, UCMJ TO PRODUCTION OF WITNESSES WHO WOULD HAVE OFFERED EVIDENCE TO NEGATE THE GOVERNMENT'S EVIDENCE OR SUPPORT THE DEFENSE.

No other CAAF oral arguments are scheduled. (Having been tracking the CCA oral arguments for some time now, it appears that ACCA holds far more than do the other three CCAs.)

Recent activity in the Gray habeas case

On Thursday, Senior Judge Rogers issued four orders in the federal habeas corpus case of military death row inmate Ronald Gray. Three of the orders granted motions for counsel from the highly regarded Capital Habeas Corpus Unit (CHU) of the Federal Public Community Defender, Philadelphia, Pennsylvania, to appear pro hac vice. The fourth order granted in part those counsel's request for an extension in the deadline for filing their traverse to accommodate a mitigation investigation. Gray's counsel had sought a 120-day extension. Judge Rogers found "it appropriate under the circumstances to grant a preliminary extension of 60 days at this time. Once the period for filing a response to petitioner's motion has expired, the court will renew its consideration of petitioner's request for an additional sixty days to file a traverse." Gray v. Gray, No. 08-3289-RDR (D. Kan. May 21, 2009) (order).

A final thought about the Green case [REVISED]

Last year, we expressed our dismay about an increase in the number of recruits entering the military on conduct waivers. This year, we celebrated the news that the Army had stopped enlisting potential recruits with felony convictions and recent drug use.

The New York Times reports that former Army PFC Steven D. Green "got into the Army in 2005 on a so-called morals waiver, having had problems with alcohol and drug abuse." This example gives an all-too-disturbing face to the statistics suggesting those who entered the military on conduct waivers are more likley to commit misconduct than are those who didn't.

More on Green sentencing

Here's a link to today's NYT article on the former PFC Green's sentence. The Times reports that the jury deadlocked on sentence, resulting in life without eligibility for parole.

A quick thought about CAAF's proposed rules changes

I have to race to the airport shortly -- and every minute I type probably represent one more MPH above the speed limit that I'll have to drive -- so this will be a skeletal thought. I'll try to flesh it out over the weekend.

Given Rodriguez and now Angell, CAAF shouldn't change its rules in a way that makes it harder to invoke the court's jurisdiction. The petition is the document that invokes the court's jurisdiction. It should, therefore, be easy to file a petition. But CAAF's proposed rules changes make it far harder to do so by marrying up the petition with the supp. Whether it should or shouldn't, as a practical matter I'll bet such a change has the effect of increasing the number of untimely filed petitions, since counsel will necessarily take longer to file a petition and supp rather than just a petition. And the more necessary steps, the more likely the ball is to be dropped at some point.

So if CAAF wants to expedite the initial grant/deny process, it should do so by reducing the number of days in which to file the supp after the petition is filed rather than requiring that the supp be filed along with the petition.

NIMJ proposes sea change in CAAF's practice

Here's a link to NIMJ's analysis of the proposed CAAF rules changes. NIMJ would have CAAF move to a system of review similar to the operation of the federal circuit courts of appeals. In another proposal to bring CAAF's practice into closer alignment with that of the Article III appellate courts, NIMJ also proposes that CAAF enter into the PACER electronic filing system.

Green receives life sentence

Here's a link to a USA Today article.

MUST READING for military appellate defense counsel [REVISED]

Here's a link to an important order that CAAF issued yesterday. United States v. Angell, __ M.J. ___, No. 09-0098/AR (C.A.A.F. May 20, 2009). CAAF indicates that it may initiate disciplinary proceedings against appellate defense counsel who blow their clients' CAAF petition deadlines. In concurring footnotes, Chief Judge Effron and Judge Baker urge the Judge Advocates General to consider certifying cases to CAAF where an appellate defense counsel blows the petition filing deadline.

Green sentencing deliberations to continue Thursday

The federal jury deliberating on the sentence in the Green capital MEJA case didn't reach a conclusion today. Here's an AP article on today's sentencing arguments.

CAAF grant

I am informally informed that CAAF granted review today on these pretrial punishment issues:

I. Whether, having found knowing violation of AFI 31-205, the military judge erred in not determining that the violation involved an abuse of discretion warranting credit under RCM 305(k)

II. Whether the conditions of Appellant's pretrial confinement in suicide watch which included, inter alia, denial of books, a radio, and/or a CD player, and 24-hour-a-day lighting, were so excessive that they constitute punishment in violation of Art 13, and thus Appellant is entitled to additional sentence credit.

I understand that the case name is United States v. Williams. My best guess is that it's case number 08-0339/AF.

New published AFCCA case narrowly construes R.C.M. 1001(b)(4)

AFCCA today issued a published opinion construing the scope of the government's case in aggravation suprisingly narrowly. United States v. Moore, __ M.J. ___, No. S31502 (A.F. Ct. Crim. App. May 20, 2009). Senior Judge Heimann wrote for the court, holding that in this case which included findings of guilty under Article 112a, the government couldn't present uncharged incidents of post-offense drug use as evidence in aggravation under R.C.M. 1001(b)(4).

Second Cox Commission Public Hearing and Topics Announced

Here is a link to the notice of the Second Cox Commission's public meeting on June 16, 2009 at George Washington University Law School, Moot Court Room, L101, 2000 H Street, N.W., Washington, DC 20052.

Here is a link to the proposed agenda for the Commission. The notice also directs members of the public to submit written comments to coxcommission@wcl.american.edu or by mail to National Institute of Military Justice, 4801 Massachusetts Ave., NW, Washington, DC 20016.

New Published NMCCA Case, Garner

The Navy-Marine Corps Court of Criminal Appeals published a new opinion yesterday, United States v. Garner, No. 200800481, __ M.J. __ (N-M. Ct. Crim. App. May 19, 2009). The opinion affirms the findings and sentence, but on its way there the opinion has an extensive analysis of the "substantial step" requirement for the offense of attempting to entice a minor to engage in illegal sexual activity under § 2422(b) and finds unreasonable multiplication of charges. Here is the opinion's bottom line (which stretched the line between attempt and not a crime, in my opinion) on the "substantial step" requirement:

We are persuaded that the appellant’s “grooming” behavior, to include an expressed suggestion to meet in person, provide an adequate factual basis to support the appellant’s guilty plea to attempting to entice a minor to engage in illegal sexual activity under § 2422(b).

New issue of JAG Magazine

The new issue of the Navy's JAG Magazine -- or, as I prefer to call it, JAGMAG -- is available here.

Navy JAG certifies Article 120 constitutionality case to CAAF

On Friday, the Judge Advocate General of the Navy certified a case to CAAF dealing with the constitutionality of the new Article 120 and CAAF ordered an expedited briefing schedule. That expedited schedule makes me think that CAAF may hear oral argument on the case this term.

Here are the six issues specified in United States v. Neal, No. 09-5004/NA:

I. WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED IN FINDING IT HAD JURISDICTION OVER THIS ARTICLE 62, UCMJ, APPEAL, WHERE THE APPEAL WAS TAKEN AFTER THE CASE WAS ADJOURNED AND THE MEMBERS DISMISSED.

II. DESPITE THE LANGUAGE OF ARTICLE 120(r), UCMJ, WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS CORRECTLY HELD THAT THE ARTICLE DOES NOT PROHIBIT THE ACCUSED FROM INTRODUCING EVIDENCE OF CONSENT IN ORDER TO NEGATE AN ELEMENT OF THE OFFENSE.

III. CONCERNING THE AFFIRMATIVE DEFENSE SET FORTH IN ARTICLE 120(t)(16), WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS CORRECTLY HELD THAT CONGRESS CONSTITUTIONALLY ALLOCATED, TO THE ACCUSED, THE BURDEN OF PROVING CONSENT BY A PREPONDERANCE OF THE EVIDENCE.

IV. WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS CORRECTLY HELD THAT "LACK OF CONSENT" IS NOT AN IMPLICIT ELEMENT OF ARTICLE 120 CRIMES, INCLUDING THE CHARGED OFFENSE, GIVEN THE DEFINITION OF "FORCE" IN ARTICLE 120(t)(5), AND THUS ARTICLE 120, UCMJ, DOES NOT UNCONSTITUTIONALLY SHIFT THE BURDEN TO THE ACCUSED TO "DISPROVE AN ELEMENT OF THE OFFENSE."

V. WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS CORRECTLY HELD THAT THE EVIDENCE TRIGGERED THE AFFIRMATIVE DEFENSE OF CONSENT AS DEFINED IN ARTICLE 120(t)(16), UCMJ, DESPITE THE FACT THAT THE APPELLANT FAILED TO ACKNOWLEDGE THE OBJECTIVE ACTS OF THE ALLEGED OFFENSE.

VI. WHETHER THE FINAL TWO SENTENCES OF ARTICLE 120(t)(16), UCMJ, WHICH ALLOWS FOR CONSIDERATION AS TO WHETHER THE GOVERNMENT HAS DISPROVED THE AFFIRMATIVE DEFENSE OF CONSENT BEYOND A REASONABLE DOUBT, AFTER THE ACCUSED HAS PROVED THE DEFENSE BY A PREPONDERANCE OF THE EVIDENCE, CREATE A LEGALLY IMPOSSIBLE BURDEN ALLOCATION.

This is one of the rare cases where a Judge Advocate General certifies issues to CAAF on which the government prevailed at the CCA level. I understand that both the government and the defense sought certification -- a wise move by the government, since it has an obvious interest in obtaining a quick ruling on Article 120's constitutionality, though this case won't resolve every possible constitutional challenge to the new Article 120.

NMCCA's opinion in the case is available at 67 M.J. 675 (N-M. Ct. Crim. App. 2009) (en banc).

Green capital MEJA sentencing case concludes

As reported by this CNN article, the defense concluded its sentencing case in the Green capital MEJA prosecution today. The jury will hear sentencing argument Wednesday morning.

CAAF Opinion: Collier on Defense Right to Present Its Case

United States v. Collier, No. 08-0495/NA, is available online, here. In the 4-1 opinion (Judge Baker dissenting), CAAF reverses NMCCA in a case concerning the right to present a defense. Helpful summary courtesy of Judge Ryan'sBLUF opinion (more later):

This case presents the question whether the military judge erred in granting the Government’s motion in limine prohibiting Appellant’s defense counsel from cross-examining HM2 C, the main Government witness, about an alleged homosexual romantic relationship between her and Appellant and from introducing any evidence of such a relationship. While the military judge did permit cross-examination about a close friendship, the defense that Appellant wanted to present was that HM2 C framed Appellant for larceny as a result of their romantic relationship ending badly. Because of this ruling, Appellant was free only to assert the motivation of an angry friend rather than a disappointed lover; as the Government then argued in its closing, the motivation of an angry, vengeful friend “strains all logic; it’s just not credible.”. The military judge’s ruling prevented Appellant’s counsel from fully exploring HM2 C’s bias and motive to misrepresent the truth, and precluded Appellant from presenting her theory of the case.

Under the circumstances of this case, including the fact that in its closing argument the Government exploited the evidentiary limitation it requested to criticize the theory with which Appellant was left, we find this constitutional error was not harmless beyond a reasonable doubt.

Judge Ryan's analysis finds some evidence of the relationship existed and then moves on to unfair prejudice. Her unfair prejudice analysis contains this surprising (at least to me) passage:

This Court has not allowed the military’s policy on homosexuality to prevent evidence of homosexuality from being used against an accused. See Phillips 52 M.J. at 272-73 (permitting trial counsel to offer evidence that the accused was engaged in a homosexual relationship). And we see no principled reason to prevent an accused from using this same type of evidence to potential advantage, particularly where, as here, Appellant was the proponent of the evidence of a homosexual relationship with the Government’s primary witness.

While the sauce for the goose is sauce for the gander argument is the stock and trade of appellate defense types (I resemble that remark), it was surprising to see CAAF trumpet the same argument. Interestingly, the harmless error analysis is comparably rather bland and until the analysis of the larceny, where Judge Ryan makes the obvious point, as JO'C already commented, that "there is a qualitative difference between the cross-examination permitted by the military judge and the prohibited inquiry into a failed romantic, sexual relationship." A final turn of phrase from Judge Ryan sums up her analysis,

Adding insult to injury, the Government exploited the very evidentiary limitation it requested in closing argument. "Are we supposed to believe that [HM2 C] or somebody else went out and spent $2,700.00 on tools to set this up because she’s mad at somebody? That strains all logic; it’s just not credible."

The dissent takes exception with the level of deference to the military judge's findings and actually takes issue with the qualitative difference suggested by the majority. Judge Baker writes, "It equally 'strains all logic' to suggest that an angry, vengeful lover would go to such extremes, but that an 'angry, vengeful friend' would not." I guess Judge Baker doesn't watch a lot of Jerry Springer.

No Denedo, 2 MilJus Denieds at SCOTUS

Today's orders lists as predicted denies MilJus petitions for cert. in Burton and Brown, orders list here. More importantly, no Denedo opinion. The calendar has May 26 as the next potential opinion date. After May 26, every Monday in June will have opinions released.

Court-Martial News Roundup

A few courts-martial of interest from around the globe:

-- An interesting case involving classified materials and a Marine reservist out at Camp Pendleton. As this San Diego Union-Tribune story reports

Art. 32 Investigating Officer Lt. Col. Curtis Permito said sufficient evidence exists to try Master Sgt. Reinaldo Pagan for allegedly disobeying orders, lying to investigators and violating standards of good order and discipline. But he advised Lt. Gen. Keith Stalder, the convening authority in the case, that Pagan's purported misdeeds are better characterized as “negligent” than “willful.” Stalder will decide whether to order a court-martial.

The interesting part of the story is how Pagan's alleged neglect in protecting classified information came to light:

Pagan's case is part of a broader investigation into an alleged ring of Marine and Navy reservists who took advantage of lax security at Camp Pendleton to tap classified intelligence stored on the base. The suspects allegedly passed this information to members of the Los Angeles Terrorism Early Warning Group, a civilian law-enforcement operation that wasn't cleared to view the information.

Just to be clear, MSgt Pagan is not accused of being part of that ring. He appears to be involved in safeguarding classified materials and allegedly did not do his job up to the standards required.

-- In other news, 4 (now former) civilian contractors are allegedly being held against their will in Afghanistan following a shooting that wounded to Afghan civilians. See CNN story here. The reason I post this under court-martial news is, I wonder what authority the military will exercise to keep the former contractors in country for the investigation if they manage to find a way out of the country? I suspect some form of UCMJ authority. We'll see if Mr. Callahan, whose listed as an attorney for the contractors, files for habeas at some point. Their status as "former" contractors will make for an interesting argument on jurisdiction, an issue raised bu never decided in the first civilian brought to court-martial under amended Art. 2(a)(10), see page 17 of the Ali v. Austin Writ.

-- Another soldier charged in shooting death of a fellow soldier. This MNC-I press release tells us:

Sgt. Miguel A. Vegaquinones is charged with one specification alleging involuntary manslaughter under the Uniform Code of Military Justice, Article 119 and one specification of making a false official statement under the UCMJ, Article 107. Pfc. Sean P. McCune died after allegedly being shot by Vegaquinones following the completion of their guard duty shift in Samarra, Iraq, Jan. 11. The apparent cause of death was a negligent discharge from Vegaquinones’ weapon.

We'll track that case and the Camp Liberty shooting incident we reported on earlier, here. No new news on charges in that case or the RCM 706 evaluation (competency/sanity evaluation process).

-- Interesting story about 2003 courts-martial for British soldiers that alleged abused looters here. Apparently the British MOD recently paid close to a million GBP to nine victims of the abuse. The story has this commentary, "The disclosure [of the large payments to Iraqi civilians] has led to claims that a compensation culture has been created where Iraqi civilians are now encouraged by British lawyers to bring actions against the government in the hope of winning huge payouts."

Corrected notice of proposed CAAF rules changes

Today's Federal Register includes this corrected notice of CAAF's proposed rule changes. Public comments are due in 30 days.

Next week in military justice -- 15 May 2009 edition

I'll be in court next week--possibly for the whole week--so I don't expect to be blogging again anytime soon. I hope that my colleagues will keep you informed, including concerning developments in the Green capital MEJA prosecution.

Next week at the Supremes: Monday's order list will likely include cert denials for the two military capital cert petitions of Burton v. United States, No. 08-1270, and Brown v. United States, No. 08-9714.

Next week at CAAF: CAAF has no scheduled oral arguments next week.

Next week at the CCAs: There are no scheduled CCA oral arguments next week.

Next week at the trial level: On Monday, a motions hearing will be held in the capital retrial of United States v. Walker. The case is being tried at Quantico. Also on Monday, the defense's sentencing case resumes in the capital MEJA trial of United States v. Green. The case is expected to go to the jury by Wednesday.

Coast Guard trial judge moots Article 120 challenge by deciding to give Military Judges' Benchbook instruction

Here is a Coast Guard trial judge's ruling denying a defense challenge to the new Article 120, but deciding to give the instruction recommended by the Military Judges' Benchbook, which "moots the concerns raised by the defense."

A short look at Yammine

Yesterday we noted NMCCA's new published en banc decision of United States v. Yammine, __ M.J. ___, No. NMCCA 200800052 (N-M. Ct. Crim. App. May 12 2009) (en banc). The case features an interesting dispute between the majority and Judge Booker, writing separately.

The case involves the permissibility of the government's use of child pornography evidence to prove that the accused engaged in sexual activity with a 14-year-old boy. The opinion offers a number of permutations on this theme, but here's the most important issue that the case presents, as framed by Senior Judge Couch's opinion of the court: "whether file names suggestive of possession of child pornography constitute a qualifying offense under MIL. R. EVID. 414, and are therefore admissible as propensity evidence against an accused in a prosecution for alleged acts of child molestation." Id., slip op. at 6. The majority says yes; Judge Booker says no.

Military Rule of Evidence 414(a) provides: "In a court-martial in which the accused is charged with an offense of child molestation, evidence of the accused's commission of one or more offenses of CHILD MOLESTATION is admissible and may be considered for its bearing on any matter to which it is relevant." Mil. R. Evid. 414(a) (emphasis added). The central issue in Yammine is thus whether possession of a file whose name suggests it contains child pornography is a "child molestation" offense. The majority agrees with Judge Beal that it is. Judge Booker disagrees.

The majority provides this analysis of the question:

[T]he military judge concluded that the possession or attempted possession of child pornography, a violation of 18 U.S.C. § 2252A, constitutes "an offense of child molestation" as it involves "deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain of a child" under MIL. R. EVID. 414(d)(5). AE XXIX at 3-4. Like the military judge, we are persuaded that this ruling is correct and is in concert with at least one federal court. Id. (citing United States v. Seymour, 468 F.3d 378, 385 (6th Cir. 2006)("Child molestation includes both conduct proscribed in Chapter 109A of Title 18, if committed against a child, and offenses involving child pornography.")). Further, we hold that possession, or attempted possession, of child pornography also qualifies as an "offense of child molestation" under MIL. R. EVID. 414(d)(2) and (g)(5) as "sexually explicit conduct with children . . . proscribed by . . . Federal law” because it involves the “lascivious exhibition of the genitals or pubic area of any person."

The majority adds in a footnote:

This holding is consistent with FEDERAL RULE OF EVIDENCE 414(d)(2) which defines an "offense of child molestation" as including possession or attempted possession of child pornography under chapter 110 of title 18, United States Code. 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2)); see also United States v. Bentley, 475 F. Supp. 2d 852, 856-57 (N.D. Iowa, Feb. 21, 2007), aff’d, 561 F.3d 803 (8th Cir. Iowa 2009).

In a concurring opinion, Judge Booker offers a lengthy counter-analysis that bears reading in full. Here's a short excerpt:

MIL. R. EVID. 414 permits the Government to introduce "evidence of the accused's commission of one or more offenses of child molestation." The rule defines an offense of child molestation to mean an offense punishable under the UCMJ, or a crime under Federal law or the law of a State, that involved (1) any sexual act or sexual contact or (2) any sexually explicit conduct with children proscribed by the UCMJ, federal law, or state law. MIL. R. EVID 414(d). "Sexually explicit conduct" for the purposes of the Rule means actual or simulated sexual intercourse; bestiality; masturbation; sadistic or masochistic abuse; or lascivious exhibition of the genitals.1 MIL. R. EVID. 414(g).

All the offenses included in the Military Rule involve being in the physical presence of a child. Notably, the Military Rule does not include "communicating indecent language to a child" or "transmitting obscene matter to a child” among the qualifying offenses. As noted in the Drafters' Analysis of the Military Rule and in the few cases interpreting the Military Rule, our rule is based on FEDERAL RULE OF EVIDENCE 414. The Federal Rule notably also does not include these sorts of offenses (the "obscenity" chapter of title 18 is Chapter 71; the Federal Rule mentions only Chapters 109A and 110). I am inclined to conclude, therefore, that the Rule is intended to cover only those acts that have been committed upon or in the presence of the child by the accused.

Yammine, slip op. at 22 (Booker, J., concurring) (footnote omitted).

This issue would seem appropriate for CAAF's resolution, though perhaps not in this case. Judge Booker concurs with the majority in affirming Sgt Yammine's conviction and sentence, concluding that the error was harmless. Id., slip op. at 25-26. Given the disturbing frequency with which the military justice system must deal with child molestation offenses, CAAF will no doubt soon enough be presented with this issue in a case where it may affect the outcome.

Green sentencing case continues

Former Army PFC Steven Green's defense counsel continued to present their sentencing case today, presenting testimony of a mitigation specialist and one of Green's relatives concerning his upbringing. Today's AP report is located here. Judge Russell recessed the case until Monday, when the defense will continue to present evidence. Judge Russell told the jury that the case would be submitted to them for sentencing by Wednesday.

Professor Gary Solis testifies at Green capital MEJA prosecution

Professor Gary Solis -- a renowned expert on war crimes, a professor at Georgetown Law, and a retired Marine judge advocate -- testified as a defense sentencing witness at today's Green proceedings, as discussed in this AP article. The article provides this synopsis of his testimony:

Solis, who teaches law at Georgetown University in Washington, D.C., said facing such stressful conditions can impair a soldier's judgment, especially when the unit lacks leadership.

"It's not long before judgment is degraded," said Solis, a veteran of two tours in Vietnam. "That's what leaders are for. To help soldiers."

Another en banc published NMCCA opinion

United States v. Yammine, __ M.J. ___, No. NMCCA 200800052 (N-M. Ct. Crim. App. May 12 2009) (en banc). Senior Judge Couch for the court.

(Unfortunately, I probably won't have time to synopsize it tonight. I invite my colleagues to comment on it if they wish.)

Green capital MEJA prosecution update

Here's our daily AP update on the Green trial, where the defense continued to present its sentencing case today.

Bio of Colonel Wintrhrop published

A biography of Colonel Winthrop by Air Force judge advocate Joshua E. Kastenberg has been published. Ordering information from Barnes & Noble is available here. (I just ordered a copy for myself.)

The book is called The Blackstone of Military Law : Colonel William Winthrop.

The publisher provides this description:

Colonel William Winthrop singularly was the most influential person in developing the military law of the United States. A half century ago, the Supreme Court tendered to Winthrop the title, "The Blackstone of Military Law," meaning simply that his influence outshone all others. He has been cited over 20 times by the highest court and well over a 1,000 times by other federal courts, state courts, and legal texts. In this, he surpasses most other legal scholars, save Joseph Story, John Marshall, or Felix Frankfurter. But while biographies of each of these Supreme Court Justices have been written, there has been none to date on Winthrop.

The Blackstone of Military Law: Colonel William Winthrop is the first biography on this important figure in military and legal history. Written in both a chronological and thematic format, author Joshua E. Kastenberg begins with Winthrop's legal training, his involvement in abolitionism, his military experiences during the Civil War, and his long tenure as a judge advocate. This biography provides the necessary context to fully appreciate Winthrop's work, its meaning, and its continued relevance.

Sergeant Charged in Camp Liberty Shootings

As this WaPo story reports, "Sgt. John M. Russell, of the 54th Engineer Battalion, has been charged in the shooting that killed five service members at a combat stress clinic" at Camp Liberty, Baghdad on Monday. Russell is charged with five counts of murder and one count of aggravated assault. More facts about the incident can be found in this Navy Times report. When we see the charge sheet or official press release we'll post a link.

According to the story, Major General David Perkins told the WaPo that "Russell's commanders in recent days had asked him to seek counseling. Out of concern for his welfare, they took the rare measure of taking his weapon away." The WaPo said such measures are typically reserved for "soldiers exhibit violent or suicidal behavior." The AP report, here, has some more background on Sgt. Russell.

CAAF rejects Care inquiry challenge

CAAF rejected a Care inquiry challenge today in United States v. Riddle, __ M.J. ___, No. 08-0739/AR (C.A.A.F. May 12, 2009). Judge Stucky wrote for the majority. Chief Judge Effron, joined by Judge Erdmann, dissented.

Judge Stucky offers this helpful BLUF synopsis of the opinion:

Appellant asserts that her guilty pleas were improvident because the military judge did not explain or discuss the defense of lack of mental responsibility during the plea inquiry. We hold that Appellant’s pleas were provident and that under the facts of this case the military judge was not obligated to explicitly explain or discuss that defense with Appellant.

Id., slip op. at 2.

The majority explains that "[a] military judge can presume, in the absence of contrary circumstances, that the accused is sane and, furthermore, that counsel is competent." If "the accused's statements or material in the record indicate a history of mental disease or defect on the part of the accused, the military judge must determine whether that information raises either a conflict with the plea and thus the possibility of a defense or only the 'mere possibility' of conflict. The former requires further inquiry on the part of the military judge, the latter does not." Id., slip op. at 9-10 (internal citation omitted). In this case, the majority concluded, "The record of trial makes clear that neither Appellant's conduct nor her mental health history created more than the mere possibility of conflict with her pleas." Id., slip op. at 11. The majority proceeded to set out specific facts from the record supporting this conclusion. Id., slip op. at 12-13.

Chief Judge Effron offers this helpful BLUF synopsis of the dissent:

The plea colloquy in this case between Appellant and the military judge raised a possible defense of lack of mental responsibility under Rule for Courts-Martial (R.C.M.) 916(k). These circumstances required the military judge to engage in a further inquiry to resolve the apparent inconsistency raised by the plea colloquy. The military judge did not do so. Accordingly, I respectfully dissent from the conclusion of the majority opinion that the military judge did not err in the conduct of the plea inquiry.

Riddle, dissent slip op. at 1 (internal citation omitted). Looking at the facts, the dissent concludes that the "trial developed information that presented more than a 'mere possibility' of a defense, raising 'a possible defense' of lack of mental responsibility requiring further inquiry by the military judge." Id. at 6 (internal citation omitted).

Like so many CAAF decisions this year, this case doesn't appear to present a doctrinal disagreement. Rather, the court's judges performed a detailed analysis of the facts and came to different conclusions, both of which were defensible and well-defended.

As a matter of judicial craftsmanship, both the majority and the dissent read like majority opinions. It makes me wonder whether Chief Judge Effron was originally in the majority and one of the judges flipped. Of course, we'll never know.

CAAF releases Sanders opinion

CAAF made short work of Sanders, a case in which it heard oral argument less than a month ago. In a six-page per curiam opinion, CAAF held that any potential error in the admission during the government's sentencing case of a letter written by the accused wasn't prejudicial. United States v. Sanders, __ M.J. ___, No. 09-0013/AF (C.A.A.F. May 12, 2009) (per curiam). If 2008 was the Year of Jurisdiction, this term is starting to look like the Year of Narrow Opinions. I hasten to add, to paraphrase Seinfeld, not that there's anything wrong with that.

BREAKING NEWS: NMCCA grants government's Crotchett appeal, rejecting new Article 120 challenge in published en banc ruling

In a published en banc decision released today, NMCCA rejected a challenge to the new Article 120.United States v. Crotchett, __ M.J. ___, No. NMCCA 200800770 (N-M. Ct. Crim. App. May 12, 2009) (en banc). Judge Booker wrote the opinion of the court.

The majority framed the issue as "whether an accused service member, in asserting an affirmative defense of consent, must disprove whether a victim is 'substantially incapable of communicating unwillingness to engage in the sexual act,' Article 120(c)(2)(C), in order to be acquitted." Id., slip op. at 2. The court held that "the statute does not require this of an accused." Id.

The majority notes an apparent "overlap of defense and Government burdens in prosecutions for aggravated sexual contact in a case where the defense wishes to present a defense of consent or mistake of fact as to consent." Id., slip op. at 4. But the court proceeds to analyze the statute in a manner that avoids a conflict. NMCCA offers this explanation of how the new Article 120 operates:

If the defense chooses to introduce the notion of consent into the trial, as is permitted (but not required), then the defense bears the burden of satisfying the finder of fact, by a preponderance of the evidence, that the victim used "words or overt acts indicating a freely given agreement to the sexual conduct at issue by a competent person." Art. 120(t)(14). The plain language of this provision assigns to the defense only the burden of convincing the finder of fact by a preponderance of the evidence of two objective determinations: were the words uttered or the overt acts made? If so, could they indicate freely given agreement? If the answer to either question is "no," the statute additionally allows an honest and reasonable mistake of fact as to the objective determinations (in other words, did the accused honestly and reasonably believe that he heard the words or saw the overt acts, and did he hold an honest and reasonable belief that they indicated freely given agreement?).

The affirmative defense does not require the accused to prove the alleged victim's actual agreement, nor actual capacity to agree; rather, the accused need only show that the alleged victim objectively manifested consent. The defense bears no burden of demonstrating that the words actually constituted a "freely given agreement" or that they were made "by a competent person." To the contrary, the burden of proof as to the element of the victim's actual capacity is, and always remains, on the Government, and this burden is beyond a reasonable doubt.

We return to the point that, notwithstanding the advancement of any particular affirmative defense, the Government always bears the burden in a prosecution under this subsection of proving beyond a reasonable doubt that the sexual act occurred, and that the victim was substantially incapable of communicating unwillingness to participate in the act. If the Government fails in any respect -- to prove beyond a reasonable doubt any element, or to disprove beyond a reasonable doubt the existence of a defense -- the accused must be acquitted.

Id., slip op. at 5-6.

Judge Maksym, joined by Judge Couch, dissented in part, noting concern over the constitutionality of Article 120(t)(16)--an issue whose resolution they viewed as unnecessary for purposes of this appeal. Id., slip op. at 8. Article 120(t)(16) provides, in part: "The accused has the burden of proving the affirmative defense by a preponderance of evidence. After the defense meets this burden, the prosecution shall have the burden of proving beyond a reasonable doubt that the affirmative defense did not exist."

Gray's counsel move for extension to filing deadline

Ronald Gray's counsel today asked for a 120-day extension in their deadline to file the traverse to the United States' response to his habeas petition. The motion, which is available here, is based largely on the defense's need for time to conduct a mitigation investigation, which apparently none of Gray's counsel ever received funding to perform. The motion is supported by an affidavit from Russell Stetler -- one of the nation's premier experts on capital mitigation investigations -- describing the investigation's necessity.

Prosecution rests sentencing case in Green capital MEJA prosecution

Here's an AP article on today's proceedings in the Green capital MEJA case. On Thursday, the jury convicted Green of death eligible offenses. Today the prosection presented its sentencing case, which included testimony from relatives of the four murder victims.

This week in military justice -- 10 May 2009 edition

This week at the Supreme Court: Two military cert petitions have been circulated for Thursday's conference: Burton v. United States, No. 08-1270, and the pro se IFP cert petition in Brown v. United States, No. 08-9714. Both will almost certainly result in denial of cert.

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

This week at the CCAs: ACCA will hear oral argument on Thursday in United States v. Goodwin, No. 20011125. Here are the two assignments of error being argued: "I. Appellant's trial defense counsel was ineffective when he informed the members during his opening statement that the crimes occurred because appellant was desperate for money, he failed to cross examine government witnesses, and he conceded appellants actions were 'misleading' in his closing argument. II. It took the government from 7 April 2006 to 19 December 2007 to conduct and prepare the record for appellant's Dubay hearing, and this dilatory delay warrants relief."

This week at the trial level: The penalty phase will start on Monday in the capital MEJA prosecution of United States v. Green in U.S. district court in Kentucky.

A look ahead at the Green MEJA capital prosecution penalty phase

Last Thursday, a federal district court jury sitting in Paducah, Kentucky convicted former Army PFC Steven Green of death-eligible offenses arising for raping a 14-year-old Iraqi girl and participating in her murder and her family's murder in Mahmoudiya in March 2006. The case's penalty phase starts tomorrow. Here's an AP piece looking ahead to the themes that the parties will present to the jury as it decides whether Green should be sentenced to die for his offenses. And here's a link to a New York Times article about reaction to the case in Iraq.

Humble Response to the McCain-Graham WSJ Op-Ed on Gitmo - This is Not a Rant

What follows is the beginning of an extended response to an Op-Ed on page A15 of Wednesday, May 6th's Wall Street Journal, authored by Senators John McCain and Lindsey Graham. Online edition available here. And here it is for your reading pleasure . . . or not.

Senators John McCain and Lindsey Graham wrote an Op-Ed published in the May 6, 2009 Wall Street Journal titled, “How to Handle the Guantanamo Detainees.” While I fully realize that Senators Graham and McCain may never read a response from a young, former Navy judge advocate who writes part-time for a military justice blog, I pen this response because of my utmost respect for Senator McCain and his views on the prisoner of war debate. As an initial matter, I would say that I agree with the Senators’ desire to “move on” from the now decried opinions of various administration lawyers. Those legal opinions should not now become the focus of prosecutions, they should become a part of history.

Once we move on, there still remain issues in the debate started by President Obama’s announcement to close the detention facility at Guantanamo Bay, and I want to make three points in response to the Senators. First, the Senators create a straw man of “preventive detention” that ignores a core issue in the law of war—detention of enemy combatants is only for the duration of the conflict. Second, any war crimes tribunal must be used to punish exactly that, only war crimes. Unfortunately, that is not how they are currently being used. Finally, we must be careful to continue to distinguish between those detainees held at places like Bagram after seizure on the battlefield in Afghanistan and those taken to Bagram from non-battlefields, such as Iraq.

[To see the rest of my "response," click here]

U.S. district court grants Gray's motion for appointment of CHU counsel

Yesterday, Senior Judge Rogers entered this order granting Ronald Gray's motion to have the highly regarded Capital Habeas Corpus Unit (CHU) of the Federal Public Community Defender, Philadelphia, Pennsylvania, appointed without cost to represent him on his habeas petition. Gray v. Gray, No. 08-3289-RDR (D. Kan. May 8, 2009) (order).

CAAF finds waiver in Campos

Here's a link to CAAF's opinion in United States v. Campos, __ M.J. ___, No. 08-0409/NA (C.A.A.F. May 8, 2009). In an opinion by Judge Erdmann, CAAF holds that Seaman Campos waived his right to challenge the admissibility of a stipulation of expected testimony on appeal. Supporting its holding of waiver, CAAF observed that "both parties had stipulated" that the witness "need not appear at the trial. In addition, prior to admitting the document into evidence the military judge asked if there were any objections and defense counsel expressly indicated that he had none." Id., slip op. at 6. CAAF held, "In light of the military judge's detailed explanation of the stipulation, Campos's agreement to 'use of' the stipulation, and defense counsel's representation that he desired to enter into the stipulation, the record clearly reflects that Campos waived any right to claim error on the ground that Dr. Arnold did not personally appear to present live testimony." Id. CAAF then addressed what it termed the more difficult issue of whether the defense counsel's statement that he had no objection constituted a waiver of any challenge to the stipulation's admissibility. Yes under the facts of this case, held CAAF. The record establishes that the defense counsel had advance notice of the stipulation's contents and the defense counsel raised no objection. No claim of IAC was raised on appeal.

While joining in the majority's resolution of the waiver issue, Judge Baker wrote separately to raise concerns as to whether the military judge overly deferred to the expert's recommendation concerning the minimum sentence that should be imposed.

Of course, Campos joins United States v. Gladue, __ M.J. ___, No. 08-0452/AF (C.A.A.F. Apr. 28, 2009), to become the second recent CAAF opinion to apply waiver as a bar to reaching the substantive issue in the case. In a 2000 dissent, Chief Judge Crawford accused the majority of "swim[ming] in a sea of paternalism." United States v. Scalarone, 54 M.J. 114, 119 (C.A.A.F. 2000) (Crawford, C.J., dissenting). CAAF seems to have gotten out of the water and started to towel itself off.

April Army Lawyer online

The April issue of the Army Lawyer is now available here. It doesn't appear to include anything of interest to military justice wonks.

ACCA's Anderson decisions

Yesterday we mentioned CAAF's interesting grant of review in United States v. Anderson, No. 08-0344/AR:

WAS APPELLANT AFFORDED A FAIR TRIAL EVEN THOUGH HIS REQUEST FOR A FORENSIC PSYCHIATRIST WAS DENIED AND THE GOVERNMENT THEREAFTER AVAILED ITSELF OF A FORENSIC PSYCHIATRIST AND ATTACKED THE QUALIFICATIONS OF THE VERY EXPERT IT DID MAKE AVAILABLE TO THE DEFENSE?

We have now acquired ACCA's opinion in the case, as well as its order denying reconsideration en banc. Here's a copy of the decision. United States v. Anderson, No. ARMY 20040897 (A. Ct. Crim. App. Jan. 31, 2008). And here's a copy of the order denying reconsideration en banc. United States v. Anderson, No. ARMY 20040897 (A. Ct. Crim. App. Feb. 12, 2008) (order).

Ayala MEJA Case Sentencing

Word has it that former Army Sergeant and private security contractor Don Ayala received a sentence of 5 years probation, $12,500 fine, $100 special assessment in his MEJA case. The case involved Ayala's work protecting a "human terrain team" and had some pretty sad facts. Under the advisory sentencing guidelines applicable to the case, Ayala faced 8 years in prison, though that was unlikely in light of the facts of the case, see Stars and Stripes report here.

Is 1st Lt Watada Free and Clear?

As we noted on Tuesday, here, the US Government has decided not to proceed with further appellate proceedings challenging the double jeopardy ruling of US District Judge Benjamin Settles in Watada v. Head, No. C07-5549BHS (W.D. Wash. Oct. 21, 2008). Some reports have said that Watada will not be retried, but without citing any evidence other than the withdraw of the appeal.

If you will recall, the trial judge ruled that the military could proceed to retry Lieutenant Watada on two conduct unbecoming charges, see order here. The court wrote that the government could re-try Watada on two conduct unbecoming charges that were dismissed "without prejudice to ripen into prejudice upon completion of trial proceedings." Since the plea proceedings were never completed, the Court reasoned, there is no double jeopardy issue. See our prior report here.

Yesterday, according to the Honolulu Advertiser, here, a Fort Lewis spokesman said that leadership at Fort Lewis "is considering a full range of judicial and administrative options that are available, and those range from court-martial on those two remaining specifications, to nonjudicial punishment, to administrative separation from the Army."

If anyone has any information indicating that the government won't or will proceed on those charges, please drop us a note at noman@caaflog.com.

[UPDATE: Just after posting I received an alert that quotes 1st Lt Watada's lawyers as saying the Army won't pursue additional charges, story here. If anyone can confirm that please let us know.]

Green capital sentencing phase to start on Monday

Judge Mathews the Greatest reported earlier this afternoon that former Army PFC Steven D. Green was convicted at his capital MEJA prosecution in U.S. district court today. The capital sentencing phase of the case will start on Monday.

CAAF grant

The second granted issue in Anderson looks fascinating:

SHOULD THE MILITARY JUDGE HAVE DISMISSED CHARGE III AS PREEMPTED, MULTIPLICIOUS, AND AN UNREASONABLE MULTIPLICATION OF CHARGES; AND THE ADDITIONAL CHARGE AS MULTIPLICIOUS WITH CHARGE I, SPECIFICATION 1, AND AN UNREASONABLE MULTIPLICATION OF CHARGES WITH CHARGE I, SPECIFICATION 2?

WAS APPELLANT AFFORDED A FAIR TRIAL EVEN THOUGH HIS REQUEST FOR A FORENSIC PSYCHIATRIST WAS DENIED AND THE GOVERNMENT THEREAFTER AVAILED ITSELF OF A FORENSIC PSYCHIATRIST AND ATTACKED THE QUALIFICATIONS OF THE VERY EXPERT IT DID MAKE AVAILABLE TO THE DEFENSE?

United States v. Anderson, __ M.J. ___, No. 08-0344/AR (C.A.A.F. May 5, 2009).

I can find neither hide nor hair of ACCA's opinion online. If someone could throw it over our transom, we'd be grateful. As always, you can reach us at caaflog@caaflog.com.

Green convicted in Iraq rape, murders

The Associated Press reports that a federal jury has convicted ex-PFC Steven D. Green in the rape and murder of Abeer Qassim al-Janabi and three members of her family. Green now faces the death penalty for his role in the 2006 killings in Mahmudiya.

Published ACCA decision

When it rains, it pours (literally if you're in the D.C. area). Here's a link to a published ACCA opinion that just showed up on the court's web site. United States v. Gunderman, __ M.J. ___, No. ARMY 20080239 (A. Ct. Crim. App. Apr. 30, 2009).

Gunderman is ostensibly a case about ineffective assistance of counsel, but seems to be more a case of ineffective assistance of client. Specialist Gunderman's appellate defense counsel raised an IAC issue, asserting that the trial defense counsel had failed to advise Gunderman that he could seek waiver and/or deferment of automatic forfeitures. The assignment of error was accompanied by an unexecuted affidavit from the appellant. Appellate defense counsel indicated that a signed and notarized version would be filed when received. But counsel never received a signed version, so ACCA understandably refused to consider the unexecuted affidavit. ACCA made clear that even when dealing with Grostefon issues, factual assertions must be appropriately documented.

Judge Conn wrote the opinion for a unanimous panel.

No second court-martial for 1LT Watada

The No Man called my attention to this report that the Army no longer plans to court-martial 1LT Watada for his refusal to deploy to Iraq. Here's a link to a previous post by the No Man discussing the case.

CAAF releases its opinion in Delarosa

Here's a link to CAAF's opinion in United States v. Delarosa, __ M.J. __, No. 08-0390/NA (C.A.A.F. May 6, 2009). Chief Judge Effron wrote for the majority affirming the Navy-Marine Corps Court. Judge Erdmann dissented. The majority held that Petty Officer Delarosa's confession to civilian law enforcement authorities was properly admitted.

Petty Officer Delarosa was suspected of killing his infant son. Interestingly, he was initially tried in a Virginia court where the judge suppressed his confession. See id., slip op. at 7. He was later tried by the military, where the military judge, the Navy-Marine Corps Court, and now CAAF all ruled that his confession was admissible.

The day after Delarosa's son died, he went to a Norfolk police station, where he was questioned by detectives. He indicated that he wanted to speak with the detectives. The detectives told him he must first identify his son's body and be advised of his rights. During the rights advice process, Delarosa repeatedly interrupted to say he wanted to talk to the detectives. But after indicating on the rights advisement form that he understood his rights, Delarosa wrote "NO" next to this block: "I further state that I waive these rights and desire to make a statement." He then wrote "N/A" next to this block: "This statement is completely free and voluntary on my part without any threat or promise from anyone." When the detectives expressed their confusion as to why Delarosa had written "NO" on the waiver block when he had expressed a desire to speak about his son's death, Delarosa indicated that he wanted to talk to the detectives but wanted a command representative present. A detective told him that a command representative wouldn't be allowed to be present, but reiterated that Delarosa had a right to counsel. Delarosa didn't request a lawyer, but reiterated his request for a command representative. The detectives then left the room and told Delarosa to review the rights advisement form and knock on the door when he had made a decision.

About 35 minutes later, one of the detectives returned to the interrogation room to ask Delarosa if he would take a polygraph. About two hours later, when one of the detectives was accompanying Delarosa on a head call, Delarosa learned that his wife was at the station and about to be polygraphed. Delarosa then said he wanted to talk to the detectives about his son's death. The detective said they couldn't speak with him because of his "No" answer on the rights advisement form. Delarosa responded that he had been confused and he now wanted to waive his rights and take a polygraph. The detectives later readvised Delarosa of his rights. This time, he answered that he wanted to waive his rights. During a post-polygraph interrogation, he made self-incriminating statements that were then used against him at his court-martial, over his objection.

The issue central to CAAF's decision was whether Delarosa had ever unequivocally invoked his Miranda rights. CAAF concluded that he had not. CAAF reasoned, "In light of Appellant's repeated statements reflecting an intent to cooperate, Appellant's 'NO' response on the rights advisement form was ambiguous." Id., slip op. at 19. Because Delarosa didn't unequivocally invoke his Miranda rights, there was no constitutional requirement for the detectives to stop questioning him. Id., slip op. at 20. CAAF also held that Delarosa's decision to make incriminatory admissions was voluntary, knowing, and intelligent. Id., slip op. at 21.

Judge Erdmann concluded that Delarosa unambiguously invoked his right to remain silent: "Upon determining that Delarosa would not waive his right to remain silent unless a command representative was present, and since police policy would not allow that presence, the detectives had the necessary clarification and Delarosa's invocation was unambiguous." Following that unambiguous invocation, Judge Erdmann concluded, the detectives failed to scrupulously honor it.

Jury begins deliberations in United States v. Green

Per the Associated Press, the jury has begun deliberating the capital MEJA case of United States v. Green. As expected, the defense's closing argument focused on the stress of serving in a war zone and sought to deflect blame for the rape and murder of an Iraqi girl, 14-year-old Abeer Qassim al-Janabi:

... defense attorney Scott Wendelsdorf said jurors needed to take into account Green's stress and the Army's failure to address it. Jurors heard testimony that Green had spoken before the attack about having thoughts of killing Iraqis.

"Did Steven Green uphold the honor of the Army? Hell no," Wendelsdorf said. "Did the Army do its part? I think not."

The sole comment (for now, at least) posted with the article is both evocative and rather pointed.

Defense rests in Green capital MEJA prosecution

As reported by this AP article, the defense rested today in United States v. Green. Closing arguments are set for Wednesday.

The Green capital MEJA trial: the prosecution rests

Here's an AP report on today's proceedings in the Green case. The prosecution rested its case today.

[No Man tangential add-on comment: Interesting note at the end of the story, "Wijdan Mikhail Salim, Iraqi human rights minister, attended some early portions of the [Green] trial, which is being held in Paducah, [KY] . . ."--now back to our regularly scheduled illuminating discourse]

CAAF annual reception

Once again, the Pentagon Chapter of the Federal Bar Association will be throwing an end of oral argument season bash -- though, as it turns out, about a month before the final CAAF oral arguments. The festivities will be held at CAAF at 1500 on 27 May 2009. Beverages and light refreshments will be served. All members of the court's bar are invited. And the best part -- it's free.

Last year I wasn't able to attend, but I'm looking forward to making it to this year's soiree. See you there.

Ediger grant, cont'

On Friday, we noted CAAF's grant of review in United States v. Ediger, __ M.J. ___, No. 08-0757/AR (C.A.A.F. Apr. 30, 2009). Here's a link to ACCA's unpublished opinion in the case. United States v. Ediger, No. ARMY 20060275 (A. Ct. Crim. App. June 11, 2008) (per curiam).

Amusing SCOTUS typo

From this morning's opinion of the Court in Flores-Figueroa v. United States, No. 08-108:

As a matter of ordinary English grammar, it seems natural to read the statute's word "knowingly" as applying to all the subsequently listed elements of the crime. The Government cannot easily claim that the word "knowingly" applies only to the statutes [sic] first four words, or even its first seven.

Slip op. at 4.

No Denedo Siting

No Denedo opinion today from SCOTUS, see today's decisions here. Next date for opinion release is May 18.

This week in military justice -- 3 May 2009 edition

This week at the Supremes: The Supremes have a session scheduled for tomorrow during which it may announce one or more opinions. It's possible that Denedo could be announced, though it's probably still too soon after oral argument for a decision in the case. After tomorrow, the next scheduled opinion announcement date is 18 May.

This week at CAAF: CAAF's oral argument calendar indicates that sessions are scheduled for Tuesday and Wednesday. But no cases are scheduled to be heard on those dates. Presumably there will be no actual sessions on those days.

This week at the CCAs: On Wednesay, ACCA is scheduled to hear oral argument in United States v. Goodwin, No. ARMY 20011125. The assignments of error to be argued are:

I. Appellant's trial defense counsel was ineffective when he informed the members during his opening statement that the crimes occurred because appellant was desperate for money, he failed to cross examine government witnesses, and he conceded appellant's actions were "misleading" in his closing argument.

II. It took the government from 7 April 2006 to 19 December 2007 to conduct and prepare the record for appellant's Dubay hearing, and this dilatory delay warrants relief.

Green update

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

Charlie Gittins vows to use DOJ memos to challenge Abu Ghraib court-martial conviction

Friday's WaPo included this interesting article in which Charlie Gittins, counsel for Charles Graner, indicated his intent to use the recently released DOJ memoranda on harsh interrogation techniques to "convince the Court of Appeals for the Armed Forces that top officials improperly influenced [Graner's court-martial] and kept evidence from the defense."

Graner's supp is due at CAAF on Monday. See United States v. Graner, __ M.J. ___, No. 09-0432/AR (C.A.A.F. March 25, 2009) (order).

Two CAAF grants

CAAF granted review in two cases yesterday. In United States v. Ediger, __ M.J. ___, No. 08-0757/AR (C.A.A.F. Apr. 30, 2009), CAAF granted review of this rather uninformative issue: WHETHER THE MILITARY JUDGE ERRED IN ADMITTING THE TESTIMONY OF TG UNDER MILITARY RULES OF EVIDENCE 413 AND 414." ACCA's opinion in the case doesn't appear to be on its web site.

In United States v. Campbell, __ M.J. ___, No. 08-0660/NA (C.A.A.F. Apr. 30, 2009), CAAF granted review of three issues:

WHETHER THE LOWER COURT ERRED IN REASSESSING APPELLANT'S SENTENCE, AS (1) ITS REASSESSMENT CALCULUS WAS BASED UPON AN ERRONEOUS UNDERSTANDING OF WHAT SPECIFICATIONS WERE MERGED; (2) IT ABUSED ITS DISCRETION IN FAILING TO ORDER A SENTENCE REHEARING IN LIGHT OF APPELLANT BEING SENTENCED UPON TWICE THE AMOUNT OF SPECIFICATIONS AS APPROPRIATE; AND (3) THE UNDERLYING LOGIC USED TO NOT REDUCE APPELLANT'S SENTENCE WAS FAULTY.

WHETHER THE LOWER COURT ERRED IN FINDING THAT POSSESSION OF THE SAME IMAGES OF CHILD PORNOGRAPHY ON DIFFERENT MEDIA CAN BE CHARGED AS SEPARATE CRIMES UNDER 18 USC SECTION 2252A.

WHETHER THE LOWER COURT ERRED IN DETERMINING THAT THE THREE SPECIFICATIONS UNDER CHARGE II WERE NOT "FACIALLY DUPLICATIVE."

NMCCA's opinion in the case is available at 66 M.J. 578.

Further clarification regarding attempts to have Neal certified

An entry in CAAF's daily journal from yesterday indicates that both Code 45 and Code 46 have asked the Navy JAG to certify United States v. Neal, __ M.J. ___, No. NMCCA 200800746 (N-M. Ct. Crim. App. March 31, 2009) (en banc), to CAAF and both have asked CAAF to extend the time for the Navy JAG to do so. United States v. Neal, __ M.J. ___, No. 09-5004/NA (C.A.A.F. Apr. 30, 2009). CAAF had previously extended the certificate filing period to 15 May. Yesterday the court reiterated that deadline: "The Judge Advocate General may file a certificate for review on any and all issues he deems appropriate in this case on or before May 15, 2009." Id.

Proposed CAAF rules changes

Phil Cave's Court-Martial Trial Practice blog has this post linking to an announcement in yesterday's Federal Register concerning proposed CAAF rules changes. Probably the most significant change would be to truncate the period for filing supplements and answers to CAAF. For reasons I hope to set out later in the weekend, I think changing the supp time periods in the immediate aftermath of United States v. Rodriguez, 67 M.J. 110 (C.A.A.F. 2009), would be a bad idea.

Gray petitions for appointment of CHU counsel

Here's a link to a motion filed yesterday by Ronald Gray asking the U.S. District Court for the District of Kansas to appoint the highly-regarded Capital Habeas Corpus Unit of the Federal Public Community Defender, Philadelphia, Pennsylvania, to represent him on his habeas petition. The motion contains the sad news that Tom Dunn -- a former Army JAG and a veteran of the first Gulf War -- can no longer practice law full time for health reasons.

United States opposes Gray's habeas petition

Here's a link to the answer and return that the United States filed today in the United States District Court for the District of Kansas opposing Ronald Gray's habeas petition.

Big news day

A lot happened in military justice today. The No Man has already posted about one of the day's big events -- the release of NMCCA's opinion in Carlson. (The opinion was dated yesterday but wasn't available on NMCCA's web site until today.) I'll have several additional posts later tonight.

A number of you have noted problems with comments disappearing. This seems to be the work of a "bug" in blogger's system. (Blogger is CAAFlog's host.) The No Man found this explanation, which suggests that the problem is now fixed.

Carlson Part Deux, NMCCA Rules on USACIL Problems

Here is a link to NMCCA's day old opinion in United States v. Carlson, No. 200102009, __ M.J. __ (N-M. Ct. Crim. App. Apr. 30, 2009). The opinion addresses lab issues in DNA analysis at the U.S. Army Criminal Investigation Laboratory (USACIL). The opinion ultimately finds no prejudice due to the strength of the government's case, but other issues are of interest as well and I will leave those to CAAFlog if he wants to take a run at them. This case involves the same errors, and examiner, as were discussed in United States v. Luke, 63 M.J. 60 (C.A.A.F. 2006), opinion here--see our prior coverage here, here, and here (sort of).

Chessani Denied, Not Much More

Here is a link to the unexciting order denying En Banc reconsideration in Chessani.

For those reading Mary Hall's post below and agreeing with her, you should start a campaign of Judge Ryan for SCOTUS.

Exit Justice Souter

Has Justice Souter decided that having the world's greatest job no longer compensates for the fact that it is, in his words, in the world's worst city? If so, then the President will be considering Court nominees sooner in his administration than many expected. Much is made of whether presidential and Congressional candidates have military service, but not so for Court nominees.
Although the Supreme Court has historically had a strong showing of veterans (including some noteworthy combat veterans) in its ranks, only three of the current members, by my calculation, have military experience: J. Stevens was a LCDR in the USNR during WWII (and apparently earned a Bronze Star for code-breaking services), J. Kennedy was a PFC in the California National Guard in 1961, and J. Alito was a Signal Corps officer inactive in the Army Reserve for several years.

Admittedly, there are a host of critical considerations at stake for selecting someone for the Court. But serving in uniform provides a unique perspective on a number of issues that a justice is likely to encounter during his or her service on the Court. And if the speculation proves true that the next nominee will be a woman, the number of veterans on the court is likely to remain at three.