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.