Tuesday, June 09, 2009

Fascinating Navy JAG ruling on petition for new trial [CORRECTED]

NIMJ's web site has posted a fascinating ruling by Vice Admiral MacDonald granting a petition for new trial in United States v. House. The decision is available here.

LT House was found guilty of conduct unbecoming for engaging in group sex, conspiracy to make a false statement, and false swearing . But his sentence didn't qualify his case for automatic appellate review. It was instead reviewed under Article 69, resulting in the reversal of a false swearing conviction but affirmance of the remaining findings of guilty and the sentence.

More than two years after the CA acted, LT House filed a petition for new trial, which was dismissed as untimely. A reconsideration request was rejected on the same ground. The Court of Federal Claims then returned the case to the Judge Advocate General of the Navy for another look. In this ruling, the Navy JAG holds that the two-year deadline for petitions for new trial is subject to equitable tolling. Because the Navy didn't advise LT House about problems at the USACIL, where evidence in the case was tested and allegedly tied LT House to the rape, in a timely manner, the JAG concludes that applying equitable tolling is appropriate.

Without getting into all of the particulars of the case, at the original trial, evidence was presented that Mr. Mills at USACIL had found LT House's DNA on a condom that also contained the alleged victim's DNA. After USACIL learned of problems with Mr. Mills' work, the condom was retested and LT House was ruled out as a potential source of the DNA evidence. The JAG set aside and dismissed all of the findings of guilty and the sentence.


Mike "No Man" Navarre said...

While I applaud ADM MacDonald for going out on a limb like that, the decision is results oriented. How do you square that tolling with recent pronouncements from CAAF on statutory deadlines not being subject to equitable tolling. I can't read the decision on my "computer" so I don't know how the issue was addressed.

But, this thought comes to mind: In light of Denedo LT House had other recourse, so this is an extraordinary step. What does BM3 Joe Blow think about an officer getting this sort of a decision out of the JAG and his chances of a similar decision?

Cloudesley Shovell said...

I think, perhaps, that it would have been far more appropriate for the JAG to have reviewed the petition under Article 69(b), which parrots Article 73, but--holy cow!--contains an express equitable tolling provision. Thus one avoids all those unpleasant issues regarding the JAG taking positions on statutory deadlines that are not necessarily consistent with those expressed by the United States before CAAF and the Supreme Court.

Given that Art. 69(b) and Art. 73 are virtually identical, except for the equitable tolling provision, one wonders if Art. 73 was intended only for cases reviewed by the appellate courts, as opposed to those reviewed under Art. 64 or Art. 69(a).

Southern Defense Lawyer said...

I found the footnote on the second to last page particularly interesting regarding the request for expert assistance and motion to compel.

To the SJA and TC that opposed that request, one must now ask, was the conviction really worth it? This is exactly what happens when the trial becomes a game that must be won at all costs.

Dwight Sullivan said...

Sir Cloudesley, it would be even better if Congress were to give a servicemember like LT House who is convicted after a fully contested trial a right to seek judicial review.

Even without the new evidence, an appeal might well have led to a reversal due to the military judge's refusal to order the government to provide the defense with a DNA expert. See United States v. Lee, 64 M.J. 213, 214 (C.A.A.F. 2006)

Southern Defense Lawyer said...

Oh yeah, and what Colonel Sullivan said too..

Anonymous said...

Just a note: House wasn't actually convicted of rape. It was the conviction for conduct unbecoming for having group sex that involved the DNA.

Anonymous said...

According to the decision, this case had already undergone 69a review. If that's the case, the JAG couldn't have used 69b. It's not available in cases previously reviewed under 69a (Art. 69b, RCM 1201).

Anonymous said...

NMCCA would have affirmed.

DC&wondering said...

Amazing how an Officer gets accused of among other things, rape sodomy and indecent assault. PENALTY 500.00 fine and a reprimand. Even more amazing the JAG takes a personal interest in his case goes out on a limb, cites US V Luke awards a new trial while Luke continues to languish in the apellate system while the government debates whether Luke's evidence was contaminated by a bumbling idiot and because luke cannot produce the original evidence to be retested since it was destroyed illegally by the government the stalemate persist. Truly, I try not to laugh. This is why my law school classmates continue to laugh at me for practicing in the miljus system.

I continue to beleive in a system that continues to reward me for my naievity.

Southern Defense Lawyer said...


Do you really think your law school friends practice in a class-less court system? what about the defendant who cannot afford an expert, and has a PD with a 300 case docket? How many cases do you have? I bet it's not 300.

Do officers get off light? Yes. Is it wrong? Yes. Is it any different than what happens in any trial in which the D has money? No.

I'm not condoning these abuses. Officers should be punished MORE harshly than enlisted, not less. But the reality is that the system in this way really does mirror the civilians, rather than depart from it.

DCamp;wondering said...

Southern Defense, while I agree no justice system is classless, I believe the armed forces stands on the shoulders of discipline so I expect an environment of fairness where people in authority should be held accountable as a matter of practice. I do not have 300 cases as some PD'S would but I defend the people who wear the uniform so I expect and give of myself alot for their cause. Hence, I expect nothing less of my superiors.
I am idealisitic I know.

Cloudesley Shovell said...

DC Wondering-- You're a lawyer, so surely you understand the difference between being accused and being convicted.

Yes, LT House was accused of many things, but acquitted of nearly all of them. He was punished for those offenses for which he was actually convicted.

According to CAAFlog's post, the JAG did not take "a personal interest in his case." Rather, the JAG looked at it again only because the Court of Federal Claims asked for another look after House filed suit.

Regardless of any debate about how the JAG should have reached the result, whether via Art. 73 and equitable tolling or via Art. 69, the Gov't didn't have a leg to stand on with this case.

Southern Defense Lawyer said...


No doubt you zealously advocate for your clients, and it's ok to want equal treatment for officers or harsher treatment. Idealism is good in moderation.

The issue I have with your comments is that they seem to impugne a system and to intimate that we as military lawyers are inferior to our civilian colleagues.

Our system has warts, but when I look at everything that my clients in the military get in a trial (we get to voir dire, we get an expert (usually) our PDs have relatively light case loads, etc etc) I think that I would much rather be charged with a crime in the military than in civilian courts.

I've seen what happens in the civilian world. Providency handled in two minutes, a revolving door in the prisons, the poor have markedly less chance of acquittal than the rich. And don't get me started on civil litigation, where the goal today is to see who blinks first on discovery.

I laugh at my law school friends who practice in that system. There is far more justice here, I think.

Anonymous said...

Having been a defense counsel for several years, I certainly agree that the military system is where I'd rather be for most offenses than the civilian system.

I do think when it comes to capital jurisprudence, the military is still far behind, and some of our "moral" offenses wouldn't even be crimes in the civilian world, but all-in-all, clearly the military defendant without a lot of money is in much better shape in all facets than a civilian defendant without money.