Thinking about House, Denedo, and review of subjurisdictional contested convictions

The Navy JAG's recent ruling on the House petition for new trial was satisfying and probably just. It was also legally incorrect.

LT House was found guilty by a general court-martial of conduct unbecoming an officer for alleged sexual misconduct, as well as two other offenses. One of the convictions was set aside on Article 69 review, which LT House received because his sentence didn't qualify his case for an Article 66 appeal to the Navy-Marine Corps Court of Criminal Appeals. Several years after LT House was convicted, it was discovered that the Army Crime Lab examiner who conducted the testing in his case was falsifying reports. The Army Crime Lab's subsequent retesting of the evidence from LT House's case revealed that, contrary to the original DNA examiner's report and testimony, the semen on a condom didn't match LT House's DNA. Rather, LT House was actually excluded as a potential source of the semen. The retesting also disproved other DNA evidence upon which the prosecution relied at LT House's trial.

The threshold legal issue facing the Navy JAG when considering LT House's petition for new trial was whether such a petition may be granted even if it isn't filed within Article 73's two-year deadline. The Navy JAG ruled that the two-year deadline is subject to equitable tolling. The opinion states:

There is a dearth of military case law pertaining to equitable tolling; however, a recent example can be found in United States v. Luke, 63 M.J. 60 (C.A.A.F. 2006), another case involving deficiencies in Mr. Mills' DNA processing procedures. Although the court did not expressly invoke the doctrine of equitable tolling, the fact that the court acted upon a petition for new trial that was submitted outside the prescribed two-year statutory period indicates that the doctrine was applied.

United States v. House, slip op. at 3 n.2.

There are a few problems with this passage. First, Luke isn't a petition for new trial case. Rather, it was before CAAF on a petition granting review of NMCCA's affirmance of the case under Article 66. Contrary to the Navy JAG's opinion, CAAF didn't "act[]upon a petition for new trial" in Luke. Second, the opinion overlooks United States v. Van Tassel, 38 M.J. 91, 93 (C.M.A. 1993), which actually was a petition for new trial case where a court tolled Article 73's filing period. Third, and most importantly, the opinion fails to consider the Supreme Court's opinion in Bowles v. Russell, 551 U.S. 205 (2007), and CAAF's opinion in United States v. Rodriguez, 67 M.J. 110 (C.A.A.F. 2009).

In Bowles, the Supreme Court emphasized that "[w]e have long and repeatedly held that the time limits for filing a notice of appeal are jurisdictional in nature." 551 U.S. at 206. Bowles emphasized "the jurisdictional significance of the fact that a time limitation is set forth in a statute." Id. at 210. A court has no power to extend such a statutory deadline because a "Court has no authority to create equitable exceptions to jurisdictional requirements." Id. at 214.

But for Article 73, a Judge Advocate General has no authority to set aside a finding of guilty. On the contrary, Article 76 forbids a Judge Advocate General from setting aside a final finding of guilty except as provided by Article 73. Article 73's two-year statutory deadline would, therefore, appear to have the same jurisdictional effect on a Judge Advocate General's power to grant a petition for new trial as a statutory deadline has on an appellate court's jurisdiction to rule on an appeal. Yet the Navy JAG's ruling in House fails to even mention Bowles, much less wrestle with its implications for a Judge Advocate General's authority to equitably toll Article 73's two-year filing deadline.

Having found the power to equitably toll the petition for new trial filing deadline, the Navy JAG proceeded to use it. The opinion reasons that within the two-year petition for new trial period, the United States government suspended the same examiner who conducted the DNA testing in LT House's case because he permitted contamination in his testing process. House, slip op. at 3. (The examiner's even greater acts of misconduct appaerntly weren't discovered until a year and a half later, past the two-year deadline for LT House to file a petition for new trial.) Yet the U.S. government failed to advise LT House of the examiner's suspension. Id. The Navy JAG's opinion reasons:

Had the accused received timely Brady notice, he would have been able to submit a petition for new trial within the prescribed limitations. As the government was responsible for the delay in communicating the requisite information, the government should not be permitted to strictly enforce the two-year limitation. Accordingly, I find that the two-year statutory limitation on the filing period for a new trial was equitably tolled as of January 2004 [when Mr. Mills was initially suspended].

Id.

The Navy JAG proceeded to rule that the retesting of the DNA evidence provided a basis for invalidating LT House's conviction to the conduct unbecoming charge. He concluded, "In light of the significant differences between the new DNA evidence and the DNA evidence presented at trial, the arguments and theories that would have been available to the defense with knowledge of the new evidence, and all other pertinent facts, I conclude that this evidence would probably produce a substantially more favorable outcome for the accused." Id., slip op. at 5.

But that still left one finding of guilty intact -- conspiracy to make a false statement. The Navy JAG set aside that finding of guilty as well. But his rationale for doing so is unpersuasive. LT House was charged with and convicted of conspiring with two other Navy lieutenants to make false statements. Apparently the specification originally alleged particular acts in furtherance of the conspiracy. But the military judge found LT House guilty be exceptions and substitutions. The specification, as excepted and substituted, alleged that the three lieutenants "did on divers occasions . . . conspire . . . to . . . make a false statement, and in order to effect the object of the conspiracy, the said Lieutenant Harris, the said Lieutenant House, and the said Lieutenant Williams each made a false statement to NCIS." The Navy JAG threw out the conviction, reasoning:

The summarized record of trial reflects that the government presented evidence of a number of statements that the accused made to NCIS. It is not apparent from a plain reading of the specification as excepted and substituted, or by a review of the summarized record of trial, which statement the military judge concluded was false. Because the findings do not establish which statement provided the basis of the conviction, this specification is not reviewable and the findings cannot be affirmed. See U.S. v. Scheuer [sic], 62 M.J. 100 (C.A.A.F. 2005)(citations omitted).

House, slip op at 5.

This reasoning is flawed for at least two reasons. First, LT House's false statement to NCIS wasn't necessary to his conviction for this offense. Even if that allegation were excepted from the specification, he would still be guilty of the conspiracy due to either LT Harris's or LT Williams's act in furtherance of the conspiracy. So any uncertainty as to what statement of LT House's to NCIS was false would at most justify modifying the specification to omit that particular overt act, not reversing the finding of guilty altogether.

Second, Scheurer is entirely inapposite to consideration of a petition for new trial under Article 73. Scheurer is an application of the Walters/Seider line of cases. That line of cases is arises from limitations that Article 66(c) places on the CCAs' authority to affirm findings of guilty. In fact, Walters expressly noted that its holding "hinge[d] on [Article 66(c)'s] unique statutory function." United States v. Walters, 58 M.J. 391, 395 (C.A.A.F. 2003). It was based on "a critical limitation" to the CCAs' "unique power of review for factual sufficiency" under Article 66(c). Id. CAAF offered this summary of its holding in Walters: AFCCA "could not conduct a factual sufficiency review of Appellant's conviction because the findings of guilty and not guilty do not disclose the conduct upon which each of them was based." Id. at 397 (emphasis added). But LT House's case never qualified for Article 66(c) review because his sentence included neither a dismissal nor a year or more of confinement. (In fact, it didn't include any confinement at all.) Nor is a Judge Advocate General exercising any authority under Article 66(c) when ruling on a petition for new trial; rather, such petitions are governed by Article 73. And Article 73 does not include factual sufficiency review. Walters, Seider, and Scheurer are all, therefore, inapplicable to the House case and the invalidation of the conspiracy conviction under this line of cases is legally erroneous.

Of course, even if I'm right about these problems in the opinion, nothing will change. The Navy JAG's ruling isn't subject to any further review. So LT House will get to keep his satisfying, probably just, but legally erroneous victory.

But what of the next person in LT House's position? Before obtaining his victory from the Navy JAG, LT House had filed a previous petition for new trial that was denied as untimely, had sough reconsideration of that denial, had unsuccessfully petitioned NMCCA for extraordinary relief, had filed an unsuccessful writ appeal with CAAF, and had filed an ultimately denied cert petition with the Supreme Court. His counsel then instituted suit in the Court of Federal Claims, at which point the Navy JAG agreed to take another look at his case. Can we count on all factually innocent servicemembers who receive subjurisdictional sentences to have the knowledge, patience, and financial resources that LT House required to ultimately prevail in his case?

And what if the next time a factually innocent servicemember with a subjurisdictional sentence files an out-of-time petition for new trial with a Judge Advocate General due to misconduct at the Army Crime Lab, the Judge Advocate General applies Bowles v. Russell and rejects the petition as untimely?

Rather than requiring a Judge Advocate General to bend the law to produce a just result, we should provide a right of appeal for any servicemember who is found guilty by a GCM or SPCM despite having pleaded not guilty, regardless of the severity of the resulting sentence. If LT House had had such a right to appeal, then a clear framework would have existed to deal with the revelation of the Army Crime Lab examiner's misconduct and the subsequent exculpatory DNA retesting results.

Let's hypothesize that LT House had lost his initial appeal and CAAF had denied review before Mr. Mills's misconduct came to light. What then? United States v. Denedo provides the answer. If his case had once been within NMCCA's jurisdiction, then LT House could return to that court with the new information to seek a writ of error coram nobis. Such an instance would demonstrate the importance of allowing the military justice system's courts to protect their own integrity far more compellingly than did the facts of Denedo itself. As the Denedo majority observed:

The military justice system relies upon courts that must take all appropriate means, consistent with their statutory jurisdiction, to ensure the neutrality and integrity of their judgments. . . . [T]he jurisdiction and the responsibility of military courts to reexamine judgments in rare cases where a fundamental flaw is alleged and other judicial processes for correction are unavailable are consistent with the powers Congress has granted those courts under Article I and with the system Congress has designed.

The House case, where the accused was convicted due to false scientific evidence foisted into the military justice system by the U.S. government's own unscrupulous employee, truly involves a threat to the system's integrity.

The House case also demonstrates the callousness of the dissent's "You're in the Army now" quip. Chief Justice Roberts wrote for the four dissenting justices, "To be sure, the limited nature of relief available under Article 73 might lead one to question whether that is truly the only postconviction relief the UCMJ permits. 'You're in the Army now' is a sufficient answer to such concerns; the relief available looks positively extravagant in light of the prior history and tradition of military justice." But when LT House first enlisted in the Navy and later accepted a commission, he shouldn't have sacrificed his right to be free from the lifetime stigmatization of a factually erroneous federal conviction resulting from a U.S. government employee's falsified DNA report. Yet that might very well be the result in a subjurisdictional case such as LT House's were Article 73 to be applied consistently with Bowles v. Russell.

But those in LT House's position can have their right to be free from factually erroneous convictions protected by adding them to the class of servicemembers who may appeal their cases to the Courts of Criminal Appeals. The House case amply demonstrates the dangers of excluding such cases from appellate review.