Friday, June 19, 2009

Thinking about the Wilson remedy

As we noted yesterday, it appears that the evidence established beyond any reasonable doubt that SSG Wilson raped his step-daughter at least once. He was charged with raping her on divers occasions. The military judge found him guilty except for the words "on divers occasions" but didn't specify which was the one occasion for which she was convicting him. Applying the Walters/Seider line of cases, a four-judge majority of CAAF set aside the finding of guilty to what had originally been the divers occasions spec under the reasoning that ACCA couldn't know which specific instances SSG Wilson had been acquitted of and which specific instance he had been convicted of, thus preventing it from carrying out its appellate review function under Article 66. I'm not a fan of Walters and Seider doctrinally, but I can buy this as a fair (though debatable, see Judge Stucky's dissent) application of that case law. [If we really buy the principle underlying Walters and Seider, then it's impossible for a CCA to review any divers occasion finding of guilty where the government presents evidence of at least three acts, because the CCA can never know whether the members found the accused guilty of any particular incident or not. But CAAF -- with the exception of Judge Erdmann -- balked at taking the line of cases to its logical extreme in United States v. Rodriguez, 66 M.J. 201 (C.A.A.F. 2008). But that's a debate for another day.]

What I find particularly dissatisfying about Wilson is the remedy. Here's the majority opinion's complete remedy section:

"[T]he remedy for a Walters violation is to set aside the finding of guilty to the affected specification and dismiss it with prejudice." Scheurer, 62 M.J. at 112. Accordingly, we set aside the finding of guilty as to Specification 2 of Charge II and dismiss that specification with prejudice.
United States v. Wilson, __ M.J. ___, No. 09-0010, slip op. at 16 (C.A.A.F. June 18, 2009).

First, this is a correct application of CAAF's own case law and is thus supported by the doctrine of stare decisis. But stare decisis doesn't operate as a straight jacket when a court is applying its own precedent. CAAF could depart from Scheurer on this point if it wants to. And for the reasons I'll discuss below, it should want to. Perhaps Army GAD will file a petition for reconsideration to give CAAF an opportunity to decide whether it wants to.

The original Walters case was tried before members. See 58 M.J. 391, 392 (C.A.A.F. 2003). In a members case, there's no practical way to send the case back to the members for clarification as to the basis for the verdict. So CAAF's remedy in Walters -- setting aside the finding of guilty and dismissing the affected charge -- made sense. Seider was also a members case, see 60 M.J. 36, 36 (C.A.A.F. 2004), so the remedy of setting aside the finding of guilty and dismissing the affected specification made sense there as well. Augspurger? Also a members case. See 61 M.J. 189, 190 (C.A.A.F. 2005).

So what about Scheurer, which the Wilson majority quoted? Scheurer was a judge-alone case. See 62 M.J. 100, 103-04 (C.A.A.F. 2005). Here's Scheurer's entire analysis of the proper remedy for the Walters/Seider violation in that case:

Because double jeopardy principles would bar any rehearing on incidents of which Appellant was found not guilty, and because ambiguous findings preclude distinguishing incidents that resulted in acquittal from the single incident that resulted in a conviction, the remedy for a Walters violation is to set aside the finding of guilty to the affected specification and dismiss it with prejudice. See 58 M.J. at 397; see also United States v. Seider, 60 M.J. 36 (C.A.A.F. 2004). Accordingly, we set aside the finding of guilty to specification 3 of the original Charge and dismiss that specification with prejudice.
62 M.J. at 112.

It's probably true that in members cases like Walters, Seider, and Augspurger,"ambiguous findings preclude distinguishing incidents that resulted in acquittal from the single incident that resulted in a conviction." But that isn't as apparent in judge-alone cases like Scheurer and Wilson. I don't know whether Judge Wright remains in a judicial billet, but let's assume that she does. Why can't the case be remanded to her to clarify the basis for the conviction? R.C.M. 1102 would appear to provide a vehicle for doing precisely that. So there's a potential alternative remedy. But what if Judge Wright is no longer in a judicial billet? Then things get a little more tricky. Military Rule of Evidence 509 may preclude accepting evidence from former-Judge Wright, such as an affidavit, explaining the basis for her conviction. A case is currently pending before CAAF -- United States v. Matthews, No. 08-0613/AR -- that may clarify the answer to that question. The issue in Matthews is: "WHETHER THE UNITED STATES ARMY COURT OF CRIMINAL APPEALS ERRED IN HOLDING THAT MIL. R. EVID. 509 DOES NOT BAR THE GOVERNMENT FROM CALLING THE MILITARY JUDGE FROM A JUDGE-ALONE TRIAL TO TESTIFY AT A DuBAY HEARING AS TO HIS DELIBERATIVE PROCESS." The case was orally argued on 14 April, so while CAAF's judges probably know how it's going to come out, we might not see it for a while.

The answer to whether Military Rule of Evidence 509 would bar evidence from a former judge as to the basis of the findings of guilty doesn't matter if Judge Wright remains on the bench. And if she is no longer on the bench, the 10-day reconsideration window will probably close before we receive more guidance about the permissibility of obtaining an affidavit from her through a decision in Matthews. I hope that Army GAD files a petition for reconsideration to at least give CAAF an opportunity to consider whether, in a judge-alone case, there's an alternative remedy for a Walters/Seider violation short of setting aside a finding of guilty to an offense that's been proven beyond any reasonable doubt and dismissing the affected charge and/or specification.


Anonymous said...

Then again, overturning the conviction on a technicality and resisting the urge to ignore Walters due to the abhorrent facts of this case -- a la Judge Stucky's dissent -- gives military courts greater legitimacy alongside Article III courts and, in the end, you lot are a bit naive if you think the CAAF judges are more concerned about one man going free than they are about building institutional legitimacy.

Anonymous said...

This isn't a trial that happened last week. How do we know Judge Wright remembers which one of the two rapes she found him guilty of at the time? How do we know she wouldn't simply "re-decide" based on looking at the ROT and deciding that it "must have been" this one or that one that she found him guilty of? (which is the very post-trial review the appellate courts cant do and would just be cloaked under returning it to a judge who could easily be doing the same thing).

The bottom line is, she had the chance to fix this by ruling correctly and the TC had the chance to fix it by asking her which one she meant and both screwed up.

Appellants lose out all of the time because we hold defense counsel's feet to the fire for waiver or otherwise failing to do something, so it becomes difficult to understand the consternation now that the proverbial shoe is on the other foot.

It clearly is because of the nature of the offense, if this were an AWOL no doubt we'd have little to say about this ruling.
Which makes me wonder are some advocating for a different standard of law for more serious offenses?

Phil Cave said...

I have to agree with Anon 1213.

Anonymous said...

Here, here. I'm very disappointed in this post. I would think this blog would trumpet the decision as remaining true to settled doctrine in the face of ghastly facts. Yet, we get a call for change because this guy goes free. Very disappointing, indeed.

Anonymous said...

This MJ clearly did not know the law and what she was required to do when she found appellant guilty of only one rape -- despite the clear precedent of Walters and its progeny. She has been around for a long time and should have known better. This MJ has a history for lashing out at counsel during trial for "not knowing the law". The TC is at fault to a certain degree but the real fault is with the MJ. But for her mistake appellant Wilson would remain a convicted child rapist. CAAF got this one right.

Dwight Sullivan said...

Anon 0616 -- yes, we see a call for the law to change because someone we KNOW to be guilty goes free. Generally, the law should strive to convict guilty people and free innocent people. If the law sets a guilty person free, then there is good reason to question that law, as I did in this post. Sometimes despite such questioning, we might decide that there's a greater societal interest that warrants the guilty person going free. Privileges are often based on such a determination -- as are exclusionary rules. But to suggest that we should simply apply the law and not even question whether that law is wise when it sets a guilty person free would appear to place stability of the law ahead of ALL other interests -- including the interest of justice, which is generally served when guilt and innocence are distributed in accord with who is factually guilty and who is factually innocent.

I really hope that CAAF takes another look at this. Even if it comes up with the same answer, I think it should at least ask the question whether alternative remedies are available and, if so, whether such an alternative remedy is preferable to the one CAAF ordered in this case.

Anonymous said...

As trite as it is, better a guilty man go free than an innocent man go in jail is still a foundation of our criminal justice philosophy.

If LTC Sullivan or anyone else can come up with a reasonable approach that will work in every situation without jeopardizing someone else in a not so clear (and this isn't necessarily clear either) case of a guilty person, then let's hear it.

But I haven't seen it yet, and send it back to the judge a year or more later to see if she can remember what her original thinking was on a case when she's probably done 100 before and 20 since is not such an approach.

The law is clear, and if a change is to be made, it is not by the judiciary but by the branch that writes up the rules. They could easily re-write the rules such that a judge can reconsider her decision after closing of the court.

I really don't think we want to open that Pandora's Box for the very rare situation presented by this case just so one child rapist doesn't go free, but there are legal solutions other than the judiciary deciding a law is too favorable to a guilty accused and ignoring it to reach the "right" result.

Dwight Sullivan said...

Anon 1105, the Rules already do provide a mechanism for the military judge to clarify the ruling -- R.C.M. 1102. I suggested a remand for another look under that very rule. Also, the whole Walters/Seider line of cases and the remedy provided is judge-made law. That doesn't make it illegitimate, since it's an interpretation of Article 66 and interpreting statutes is what courts do. But surely it can't be right to say that CAAF initially came up with the remedy for a Walters/Seider violation, but only the President or Congress can change that remedy.

Of course, it may be that Judge Wright doesn't remember the basis for her ruling. If that's the case, I trust her to say so. The possibility that she might not remember doesn't seem like a good reason not to even ask her if she remembers.

Finally, here the choice isn't between an innocent person being convicted or a guilty person going free. The law shouldn't gratuitously free guilty people. That causes the public to be cynical about the law -- which is one of the many reasons why I oppose the judge-made Fourth Amendment exclusionary rule. And that's one of many reasons why it would be useful to explore the possibility of alternative remedies in this case.

DB Cooper said...

I must respectfully part ways with COL Sullivan on this.

Walters, Seider, and Augspurger (to the best of my recollection) were all victimless drug cases. No one lost any sleep when a guilty drug user/dealer got over in those cases. Further, they were cases where a few charges still remained even after CAAF’s holding. So the appellants were probably still saddled with their punitive discharges, even after sentence review at the CCA.

Accordingly, none of those cases were as controversial, even though the legal reasoning was the same.

What makes Wilson controversial is not the underlying law, but the result. Someone one who repeatedly raped and molested a little girl undid his conviction with a mere technicality, except for the Art 107 offense.

I admire and respect COL Sullivan so much. But I really have to ask – did Walters, Seider, and Augspurger draw your ire as much as Wilson has?

Judge Crawford warned of Wilson’s result in her original dissent to Walters. She pointed out that “divers occasions” charging was not limited to trifling drug offenses, but also applied to grotesque sex offenses as well. So we cannot say that this result came purely out of left-field. CAAF knew it could happen when they penned Walters and its progeny.

Further, Walters should have been a one-hit wonder. No competent MJ or TC should have let a Walters error occur ever again after that case came out. They are mind-numbingly easy to spot. But these errors kept occurring nevertheless. The trial judiciary and the TCs of the world needed a kick in the butt. And Wilson was it.

I do have one question – purely out of curiosity: can SSG Wilson face state prosecution for these offenses?

Anonymous said...

R.C.M. 1102(d) (and US v. Webb, 66 MJ 89):

“The military judge may direct a post-trial session any time before the record is authenticated.”

So first dont we have a situation where that has long since passed?

"1102(c) Matters not subject to post-trial sessions. Posttrial
session may not be directed:
(1) For reconsideration of a finding of not guilty
of any specification, or a ruling which amounts to a
finding of not guilty;"

Again, isn't that the point here? We have a not guilty, we dont know which one it is, and we cant be sure the judge does either.

Isn't the point of 1102 to allow the judge to correct SOME errors that are raised to him/her immediately following the trial, not a year or more later?

Anonymous said...

"I do have one question – purely out of curiosity: can SSG Wilson face state prosecution for these offenses?"

Sure, if the state's SOL for these offenses hasn't run, and these days, you'd expect that the SOL is pretty long for child rape.

Dwight Sullivan said...

D.B., and I've always been an admirer of your high-altitude parachuting skills.

As I said in my post, I've never been a fan of the Walters/Seider line of cases. I just didn't happen to have a blog when Walters came out. :-)

But with regard to the narrow issue of remedy that I've been addressing, I think Walters, Seider, and Augspurger got it right -- there is no practical way to find out what the basis was for members' decision. So if the Wilson fact pattern had played out in a members case, I wouldn't have raised the issue or suggested another look at the remedy. What seems to have happened is that Scheurer applied the Walters/Seider remedy without considering that it isn't necessarily transferable to a military judge alone context. If GAD were to file a reconsideration petition, that might lead CAAF to consider whether the remedy for a Walters violation in a judge-alone case should or shouldn't be the same as in a members case.

Is the issue presented more starkly because of the seriousness of the offense at issue? Sure. But I'm really not arguing that we should change the law to prevent this bad guy from getting away with it. I'm arguing that we should change the law because the current legal rule as to the Walters remedy in a judge-alone case is unwise and appears to have been initially adopted without much thought. This case serves as an example of why the current rule is undesirable.

Throughout the history of both U.S. civilian and military criminal law, changes to provide greater rights for the defendant have been driven by death penalty cases. Courts have often provided additional protections in a death penalty context and those protections were later applied in non-death penalty contexts as well. Ake v. Oklahoma is a great example. Would Ake have come out the same way if the case had been about possession of marijuana? It probably wouldn't have even reached the Supreme Court. But in Ake, the need to get it right was great because the stakes are great.

Here, too, the need to get it right is great because the stakes are great. But I'm certainly not suggesting that we bend the law to reach a desired result. Rather, I think that allowing remand as a remedy for a Walters violation in a judge-alone case is a desirable change across the board that should be applied in this case as well.

Cossio said...

Anon 1105, the addage attributed to Blackstone:

"...the law holds that it is better that ten guilty persons escape, than that one innocent suffer."

Is under the premis that we do not know who is really guilty v. who is innocent.

We know for a fact this man is guilty.

Second, I believe you demoted a COL to LTC, which in any service would get your @$$ chewed out as there is a BIG difference between a light and a full bird Col.

Peter Wright said...
This comment has been removed by the author.
Cossio said...


I think we are reading from the same playbook in regards to turning this over to civil authorities.

If these crimes happened on base, I would hope the base has concurrent jurisdiction so this guy can get hit hard.

Of course it would suck that the victim would have to testify again, but as you pointed out a plea may resolve that. Most State Attorneys are relunctant to do anything without a formal complaint from the victim.

I'll make some phone calls tomarrow and see if I can't get the ball rolling. I'll keep you guys updated.

Peter Wright said...

Hold on Cossio, this is a discussion blog, not an action blog. Let the proper authorities take care of it. They know the details and can get input from the victim. Nothing I said was meant as legal advice or call for action. I was just using this case to make a general point that civillian type crimes should be turned over to civillian prosecution instead of having the military prosecute the case. It could save the DOD some resources and get the person out of the unit faster hopefully.

Cossio said...

Yes, but how do we know if the civil authorities, and even the victim have this information?

It's not like I'm going to pit on my Batman costume (actually Darkwing Duck) and fly overthere.

John O'Connor said...

I'm with Dwight on this one (egad).

Dew_Process said...

Factual insufficiency has LONG triggered Double Jeopardy protection. The prosecution gets "one fair opportunity" to convict an accused, not multiple ones.

SCOTUS reaffirmed that concept just last week in Yeager.

This is simply a classic Burks issue that has been the law for many, many years - its just that the Military Justice system was slow to catch on. I addressed this in the prior thread discussing this case.

The "injustice" here is not that the legal system is either broken or somehow didn't work - it did work properly. The injustice is that the victim did not get justice because the Trial Counsel and MJ screwed up.

Red Flags should have gone up when the MJ had to dismiss other Specs due to statute of limitation violations.

Cossio said...


I understand that Yeager in many ways is analogous to this case.

However, you are missing the Pink Elephant known as the 'separate sovereigns' exception.

It means that it doesn't matter that he was aquitted, found guilty, or had his appeals overturned in one jurisdiction.

Another Jurisdiction can try him regardless of actions from another, as if he was never tried.

The Military is famously bad for doing this. There are a great many of men found innocent or given mistrials in the State court and found guilty in a Courts-Martial. Heck, even found guilty in one and given another guilty verdict in another.

The point is the process can work the other way.

Anonymous said...

No, the point is that it is not your place to intercede.

The government counsel will no doubt learn of this, and in consultation with the family will decide what to do next.

Cloudesley Shovell said...

CAAF has granted on another Walters-type case, United States v. Ross, No. 09-0242/MC, NMCCA 200800313.

NMCCA found that the military judge's findings were not ambiguous because possession was charged, and the evidence showed continuous possession during the date range in the charge. Therefore it was appropriate to except the "divers occasions" language.

Cossio said...

Anon 1151,

Your logical bar-hopping is amusing, but at the same time infuriating.

Rather than point out the obvious hypocrisy of whether a citizen should intercede or not, let's get a couple of things straight.

1.) We don't know what Government Counsel will do, and gathering from this case its safe to assume that the level of competence is unsat. If you are comfortable that you assume civilian authorities are being made aware of whats going on, then fine. Just remember when you assume you make an Ass out of U and Me.

2.) What we can be certain though is people choose to "intercede" then we will know for sure at least someone got the information.

3.) I was answering DP's statement on double jeopardy. I was merely saying that the State could prosecute no matter what happened at the federal level so cases on Yeager, etc are irrelevant.

Nice Straw-Man Anon, but you have things a little mixed up.

I have decided not to call anyone, out of respect for Mr. Wright's concerns.

Anonymous said...

"gathering from this case its safe to assume that the level of competence is unsat. If you are comfortable that you assume civilian authorities are being made aware of whats going on, then fine. Just remember when you assume you make an Ass out of U and Me."

What I am comfortable with is that the military trial counsels are being/will be made aware and that the victim and her family are being/will be made aware.

What happens after that is for the latter to decide. It is certainly good that you've decided not to intercede.

Peter Wright said...

Thanks Cossio, this blog is interesting to read, and I have a lot of time at work to read it, but for most of us it's a hypothetical discussion of "wouldn't the military justice be better if..."

I'll give you credit though for intellectual integrity, I would have thought that you would have understandably taken the opposite position. On an intuitative level it does seem kind of unfair to try someone twice just because the gov't didn't get it right the first time.

Thanks again!

Actually, now that I think of it, in this economy, I really should be more productive at work, either that or spend my excess time brushing up my resume!

Dew_Process said...

There is no "Pink Elephant" here. Not all states follow the "dual sovereign" fiction - some states because of statute, others due to their own Constitution. But, my point wasn't addressed to that - it was addressed to why the case could not be sent back to the MJ for "clarification" under Double Jeopardy principles.

Furthermore, the State very well may have waived any right to prosecute it had, years ago, assuming that it had concurrent jurisdiction in the first place. And, that's assuming that Colorado's Statute of Limitations hasn't run. And then there's the State Speedy Trial considerations.

That's an issue that the current SJA needs to address.

Anonymous said...

So you're saying that Colorado may have closed the barn door after the 800-lb pink elephant was already in the bush.

Cossio said...

I think we are getting our metaphors mixed up between 800lbs gorilla and pink elephants.

DP your points are well taken. Colorado may have killed any chance at justice.

Anonymous said...

This is my first post on CAAFlog, but, as an Army appellate defender, I think its important to realize the implications of a remedy that would expose judges to cross examination in a subsequent hearing about their deliberative process.

Matthews, argued by Mr. Partington, should be decided soon regarding a similar proposal. There's a certain sacrosanctity of judicial function--we review it for being right or wrong, we overturn and remand or we affirm, but we don't crack it open and squeeze it to get the result we want.

As appellate defenders, we're "gettin' after" sloppyness in the military justice system. Rulings like Miller (enumerated offenses no longer pregnant with residual 134 specs), Gardenier ("most probative" evidence turns out inadmissible; can't be harmless beyond a reasonable doubt), and Marshall (variances can't save really bad charging), should be sending a message that slop isn't going to play in military justice anymore. The government, and judges, need to start calling the pocket.

These kinds of rulings ascribe a legitimacy to military justice; this isn't a junior varsity legal process. Get it right or we're all going home after court.

MAJ Brad Voorhees

John O'Connor said...

Major Vorhees:

Good first post. I just see a difference between seeking a clarification and "expos[ing] judges to cross examination in a subsequent hearing about their deliberative process."

I don't think there would be cross-examination at all. The MJ clarifies what incident she convicted the accused of, and then the evidence either does, or does not, support such a conviction under an Article 66 review. That clarification can't be impeached, it is reviewed. If the MJ can't remember which incident she meant, then no meaningful Article 66 review can be had.

I largely agree with your point about sloppiness in the military justice system. I think a lot of CAAF decisions in the last 3-4 years can be attributed to exasperation at a perceived lack of due care in trial court proceedings and appellate processing (appellate delay, ambiguous or erroneous CA actions, variance case law, etc.). One can argue whether some of these decisions exceed the proper role of a reviewing court, but I think there's little question that the CAAF has been motivated by a desire to increase the professionalism of military justice practice.