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Wednesday, May 20, 2009
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).
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Seems to conflict with line of cases that allows proof the offense was part of a continuing course of conduct as a matter in aggravation.
Why does the military sentence in a vacuum? Why not require a presentence report that shows exactly who the accused is - past and present?
The military doesn't sentence in a vacuum. What do you think the contested sentencing phase of the court-martial is for? For a simple case it is at minimum at least a half-day long? If it’s a bigger case or if members are deciding the sentence it can go on for longer than a lot of full civilian trials. A PSI is used in the civilian world because sentencing there is usually only about 5 minutes or less.
I think what Anon 0639 was saying was that military sentencing starts out with nothing concrete and the evidence that is submitted to the sentencing authority is largely a matter of individual preference by the TC and TDC, the particular judicial philosophy of the MJ, and the potential incompetence of all involved. Whereas if we used PSIs, we would be using a more predictable process which should more predictable (and possibly uniform/reliable) results. The results would be subject to fewer attacks on appellate review, which may increase the public’s confidence in the entire system.
I think a contested sentencing gives the military judge/panel who is determining the sentence far better information than someone from pretrial services or corrections who do the PSI. The one person who does the PSI is not neutral and has their opinions on what the sentence should be and or course that will vary depending on who does the PSI. A contested sentencing with both the defense and government putting on their best case gives the decision maker the best information.
If you more uniformity in sentences then you would want sentencing guidelines like the Federal and most State systems. With guidelines a significant amount of sentencing discretion is taken from the MJ/panel and given to the state. It provides somewhat more uniformity, but the government gets more power in shaping the sentence depending on what charges they bring or drop.
Anon 0833
I spend more time contesting unverified hearsay, factual errors, etc., in State PSI's than most military sentencing procedures. Unless the author of the PSI agrees to the changes or the DA stipulates to them, you end up with a hearing on it in any event.
Anon 0639 - if the TC follows the RCM's and DC is awake and diligent, there is a plethora of evidence available - far more than at a typical civilian sentencing proceeding.
Air Force courts, at least, require the trial counsel to introduce a personal data sheet listing the member's dates of service, awards and decorations, overseas tours, test scores, and a host of ancillary information, as well as the member's performance reports. If there's an unfavorable information file or other derogatory data admissible under the rules, that's typically offered as well. All this happens at the beginning of the sentencing proceeding, before any other evidence is offered, and unless the government screws up, it paints a reasonable complete picture of at least the basics of the member's career to date. I assume the other services have equivalent procedures.
Given that, I disagree that the sentencing proceeding starts "in a vaccum" or with "nothing concrete."
Minor rant-with-a-point from an active mid-level AF TC.
1. Poorly grounded, narrow read of Hardison as overruling Shupe. AFCCA extrapolates a single use case, which it concedes is distinguishable by time passed (years vs. weeks) and continuous use, to cover a divers use case. If it's so obviously error, why isn't DC's failure to object IAC? This seems like a senior moment from our senior judge author.
2. Practically, the 'options' are awful. Admitting full DTRs only adds 100+ pages to each ROT, for what purpose other than creating a trial-within-a-trial? With a date range, not sure you can tie this to "on or about" and admit in case in chief (most MJs in guilty plea cases reject extra evidence, even if relevant, in my experience). Opinion testimony on rehab potential cannot raise specific instances of conduct (good rule, but such opinions are usually clunky and vague). There's rarely time between preferral and referral for NJP, and a prudent DC would turn it down. A letter of reprimand undercuts the govt's case -- how is using marijuana both a charged offense and wrist slap paperwork? Finally, most SJAs I know hate preferring new charges (IMO, the best COA for similar offenses) -- they risk delay and ruin metrics.
3. The relief stunk. The opinion mentions no other Govt-sponsored exhibits or testimony admitted on lack of rehab potential. Yes, we considered your lack thereof which we shifted the burden to you to disprove ("the lack of any evidence the appellant had potential for rehabilitation"), but hey, we'll knock one month off a sentence you already served. Thanks, AFCCA.
I agree with first Anon, and hope Appellate Govt appeals to clarify the "continuing course of conduct" case line. And as a still-practicing TC who supervises junior attys (here's the point of my post), if anyone has a fair-minded suggestion on the best way to handle late-breaking misconduct, I'm all ears.
They document misconduct occurring outside the charged time frame and there was no documentation showing the appellant was put on notice of the results leads us to the conclusion that the error was significant.
It seems to me that there's at least one word missing from this sentence in the holding, and possibly much more. In the parts of the holding that don't appear truncated, I'm especially interested in the parts that focus on the TC's argument.
I'll make an admission: when I tried cases before a judge, as the TC did here, I generally would make minimal reference to evidence whose admission was hotly-contested, precisely for the purpose of avoiding an appellate result focusing on my argument: "if it wasn't important, why'd you talk about it so much?" I tend to agree with Anon 0047, though, that what's good for the goose is good for the gander: "if it was so important, why didn't you object?"
"I'll make an admission: when I tried cases before a judge, as the TC did here, I generally would make minimal reference to evidence whose admission was hotly-contested, precisely for the purpose of avoiding an appellate result focusing on my argument."
Another adherent to O'Connor's Law. Welcome aboard!
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