CAAFlog Has Moved

As the Z-Man points out below, we are now at our new home http://www.caaflog.com/. The comments on this site are now closed so reset your Favorites and change your links. We can't make you go to the new site automatically so just click on the link. See you on CAAFlog.com.

New Home for CAAFlog

CAAFlog can now be found at: www.caaflog.com

CAAFlog's RSS feed can be found at: http://www.caaflog.com/?feed=rss2

You may not see the new site immediately (before Thursday morning, possibly midday) because the change takes some time to propagate across the internet.

CAAF News: which do you want first, the good news or the bad news?

The bad news: CAAF today issued an order changing the deadlines for filing supps. Starting on 1 September, supps will be due in conjunction with the petition where the petition is filed by counsel and 20 days after filing of the petition if filed by the accused. In those rare instances where appellate government counsel file an answer to the supp instead of a 10-day letter, the answer will be due in 20 days. I predict a bumper crop of CAAF petitions filed on 31 August.

The good news: Also starting on 1 September, CAAF will allow electronic filing of petitions for grant of review filed by counsel, supps, answers, and motions about supps and answers.

CAAF issues opinion on IAC claim

CAAF has released its opinion in United States v. Mazza, __ M.J. ___, No. 09-0032 (C.A.A.F. July 15, 2009). In a unanimous opinion by Judge Stucky, the court rejects an IAC claim, affirming NMCCA's ruling in the case.

More later.

British Forces Face Same Challenges

As we here in the States are debating the use of courts-martial for detainees from Gitmo, courts-martial for detainee mistreatment and killings, and what to do about "enhanced interrogation" techniques and those that used them, the Brits are facing similar issues. As reported in many outlets, including here and here, the British military has opened an inquiry into the beating death of an Iraqi prisoner (Baha Mousa) in 2003. According to reports the man died of beatings while in custody and one British soldier has already been court-martialed for the incident.

Other issues of national security versus fact finding are arising in the investigation, see report here, with the British MoD refusing to turn over some information to the Inquiry.

An interesting footnote to the story, " The Ministry of Defence has already agreed to pay a total of £3million in compensation to Mr Mousa's family and other detainees who were abused."

Upgrades

Readers-

In the way of an introduction, I'm a young Marine Judge Advocate brought aboard to help with some technological upgrades (discussed here and here), in my personal capacity of course. The switch to the new servers should happen soon - this week, with luck - and will allow CAAFlog to present the full spectrum of commentary, analysis, and information in one place. It also looks pretty good, though some would say my sense of style leaves something to be desired.

We're working to ensure a minimal loss of content, but a guy like me really embraces the "avoid zero defects" mentality. Posts and comments will transfer (already have), and everything else will remain accessible (we hope, and anything not available in other places will be duplicated). Email is unchanged. The RSS url might change, so subscribers please stay alert.

All said, the technology is just window dressing for the posts and the comments. At the transition there I will solicit feedback on the changes. Be brutal.

June Army Lawyer online

The June issue of the Army Lawyer is now available online here. Almost half the issue is devoted to Army DAD own MAJ Grace M. W. Gallagher's article, Don't Panic! Rehearings and DuBays Are Not the End of the World, Army Law., June 2009, at 1.

Also of potential interest to military justice wonks is Douglas A. Dribben's article, Damage to Rental Cars, Army Law., June 2009, at 43.

The end is near

As I mentioned last week, we will soon be moving our operations over to caaflog.com. My understanding is that all of our previous blog posts will still be accessible, but all of the documents that are currently on caaflog.com will disappear. We're planning to take just a few of those docs over to our new site. So if you want a copy of any document that's on caaflog.com now, please download it in the next 48 hours.

SG's time to reply to Rodriguez cert petition extended

The Supremes have extended the deadline for the SG to file a response to the Rodriguez cert petition, No. 08-1465, which we discussed here, until 4 August. The SG initially waived the United States' right to respond to the cert petition (as the SG routinely does in response to military justice cert petitions), but the Supremes called for a response, as we noted here.

This week in military justice -- 12 July 2009 edition

This week at the Supremes: There are no anticipated military justice developments at the Supremes this week.

This week at CAAF: CAAF has completed oral arguments for the term. By my count, seven cases argued this term have yet to be decided: Loving, Smead (which resulted in a post-argument order directing additional briefing), Matthews, Mazza, Bush, Ashby, and Schweitzer.

This week at the CCAs: None of the four CCAs' oral argument calendars lists an argument for this week.

Unpacking McCracken

First let's start with the easy and obvious point about the McCracken opinion that CAAF issued on Friday: all five judges agreed that NMCCA's resolution of the case was erroneous. Let's look at what NMCCA did.

Sgt McCracken was charged with a number of offenses including rape and adultery. The members found him not guilty of rape, but guilty of indecent assault as an LIO and guilty of adultery (plus a drunk and disorderly conviction). NMCCA concluded that the government hadn't proven beyond a reasonable doubt that Sgt McCracken had committed indecent assault. The panel then split 2-1 on the consequences of that decision. The NMCCA panel's majority affirmed a finding of guilty to indecent acts instead. Senior Judge Couch in dissent maintained that the majority erred by doing so because the theory upon which the majority affirmed a finding to indecent acts hadn't been presented to the members.

Sgt McCracken was carrying on a relationship while deployed in Iraq with a corporal who was married to an undeployed Marine. Until the night that led to the charges against Sgt McCracken, the relationship hadn't included intercourse. The married corporal testified that on that night, the two engaged in consensual "heavy petting" in Sgt McCracken's rack followed by Sgt McCracken taking off her bra against her wishes and then inserting his penis into her vagina against her wishes. Two other male Marines were in the room while all this was going on. Sgt McCracken denied that any nonconsensual activity took place. One of Sgt McCracken's roommates, who understandably considered the events that occurred in his room highly inconsiderate, reported it the following day.

In light of the consensual past relationship and the absence of any evidence that the married corporal reasonably manifested a lack of consent, NMCCA set aside the finding of guilty to indecent assault. United States v. McCracken, No. NMCCA 200600484, slip op. at 9 (N-M. Ct. Crim. App. Jan. 29, 2008). The NMCCA majority then observed:

We do, however, find that the evidence is legally and factually sufficient to support a finding of guilty to the lesser included offense of indecent acts with another. The appellant's sexual interactions with Cpl M, a married Marine in his squadron, while in his BEQ room in the presence of his roommates, and which were witnessed by them, were indecent. Prejudice to good order and discipline was evident when Cpl Labounty hurled an alarm clock at the couple from his rack across the room when he finally became fed-up with their antics.

Id., slip op. at 9-10 (internal citations omitted).

Here are the main points of contention in CAAF's decision.

1. WHY is NMCCA's opinion erroneous?

A three-judge majority of CAAF concluded that NMCCA erred because, as a matter of law, "under the circumstances of this case, open and notorious indecent acts under Article 134 . . . was neither expressly nor inherently a lesser included offense of the charged offense of rape under Article 120 . . . ." United States v. McCracken, __ M.J. ___, No. 08-0440/MC, slip op. at 2 (C.A.A.F. July 10, 2009). The majority explained that NMCCA "affirmed on the ground that McCracken's conduct was open and notorious, which was not the factual basis upon which members were instructed" concerning an indecent acts LIO. Id., slip op. at 3. In his separate opinion, Judge Stucky flatly concludes that indecent acts isn't an LIO of rape. Judge Baker also concludes that the indecent acts conviction must be set aside, because NMCCA affirmed the indecent acts conviction "on the ground that Appellant's conduct was open and notorious" and there's no way to know whether the members would have voted to convict Sgt McCracken on that basis. I may be misreading the majority's opinion or Judge Baker's opinion or both, but to me it appears that they reverse NMCCA and set aside the indecent acts conviction on the same ground.

2. What is the right remedy for NMCCA's error?

This issue seems to be the most clearly resolved. Sgt McCracken was originally sentenced to confinement for one year, forfeiture of all pay and allowances, a BCD, and reduction to E-1. Long after McCracken's entire period of confinement had elapsed, the NMCCA majority reassessed his sentence after reducing the indecent assault conviction to an indecent acts conviction and affirmed a sentence of confinement for six months, a BCD, and reduction to E-1. After setting aside the indecent acts conviction, CAAF was left with McCracken's convictions for adultery and drunk and disorderly. The CAAF majority concluded that setting aside the indecent acts conviction had "dramatically change[d] the penalty landscape in this case," thus requiring a sentence rehearing. Judge Baker didn't address the remedy, thus apparently agreeing with the majority. Judge Stucky summarily indicated that "[w]ith regard to the remedy, rather than order a sentence rehearing, I would remand to the United States Navy-Marine Corps Court of Criminal Appeals for sentence reassessment."

3. Can one offense be a lesser-included offense of another offense based on their inherent relationship rather than on their elements?

Judge Stucky's opinion is the only one of the three to expressly address this issue. Here's how it arises. In the first sentence of the majority opinion, in an example of the BLUF format of opinion writing (which I love), Judge Erdmann writes, "we conclude as a matter of law that under the circumstances of this case, open and notorious indecent acts under Article 134 . . . was neither expressly nor inherently a lesser included offense of the charged offense of rape . . . ." McCracken, slip op. at 2 (emphasis added). This language doesn't directly indicate that one offense can be considered an LIO of another offense due to their inherent relationship, but it does seem to suggest, by negative implication, an endorsement of that concept. In his dissent, Judge Stucky sharply rejects that concept, observing that "[m]ore than fifteen years ago, this Court abandoned the 'inherent relationship' and 'fairly embraced' tests for lesser included offenses in favor of a statutory elements test." Citing the Supreme Court's opinion in Schmuck v. United States, 489 U.S. 705 (1989), Judge Stucky observed, "One offense is not a lesser included offense of another 'unless the elements of the lesser offense are a subset of the elements of the charged offense.' Schmuck, 489 U.S. at 716." Because indecent acts is an Article 134 offense and the terminal element of a 134 offense is not an element of a 120 offense, Judge Stucky concludes that the former can't be an LIO of the latter. In his separate concurrence, Judge Baker poses four questions, two of which implicate this point from Judge Stucky's separate opinion:

(2) Whether the elements test articulated in Schmuck v. United States, 489 U.S. 705, 716 (1989), precludes the President from delineating certain Article 134, UCMJ, offenses as lesser included offenses of enumerated offenses absent a statutory change to the enumerated offense;

(3) Whether the due process principles advanced in Schmuck can, as a matter of law, be satisfied through mechanisms of fair notice other than the elements test.

The majority in McCracken observed that such questions "are reserved for another day." McCracken, slip op. at 4 n.2. That day is coming soon. On 1 July, CAAF granted review of this issue:

WHETHER APPELLANT'S CONVICTION FOR INDECENT ACTS WITH ANOTHER MUST BE SET ASIDE BECAUSE THE MILITARY JUDGE ISSUED ERRONEOUS AND MISLEADING INSTRUCTIONS SUPPORTING INDECENT ACTS AS AN AVAILABLE LESSER-INCLUDED OFFENSE TO THE ORIGINAL RAPE CHARGE AND THE RESULTING CONVICTION UNDER CHARGE I AND ITS SPECIFICATION AMOUNTED TO A FATAL VARIANCE.

United States v. Jones, __ M.J. ___, No. 09-0271/AF (C.A.A.F. July 1, 2009) (order).

Despite the majority's "reserv[ing] judgment" language in footnote 2, Judge Baker's concurrence suggests that "[i]t may well be that the majority opinion currently resolves each of [four questions he raises] by implication." In addition to the two questions noted above, Judge Baker asks:

(1) Whether or not the offenses expressly listed by the President as violations of Article 134, UCMJ, such as indecent acts, that are identified in the Manual for Courts-Martial, United States as a lesser included offense to a particular enumerated offense can satisfy the requirements of Article 79 . . . as a 'necessarily included' lesser offense'[];

. . . .

(4) What appellate effect, if any, does an agreement by the parties at trial that an offense is a lesser included offense have on the greater offense being considered on appeal.

Judge Baker's concurrence asks four questions, but it raises another question in my mind: what does footnote 1 of Judge Baker's concurrence mean?

I must be misconstruing footnote 1. In his concurrence, Judge Baker writes, "we cannot know whether the members would have found the act in question indecent because it was 'open and notorious' based on all the facts and circumstances had they not found Appellant guilty of indecent assault." He then drops a footnote that begins, "Had the members rejected the greater offense of rape and indecent assault, they would necessarily have been left with private consensual sexual conduct between unmarried persons in the absence of the evidence offered by the defense." Huh? Since Sgt McCracken was found guilty of adultery, presumably apart from any evidence offered by the defense, the members knew that this was NOT conduct "between unmarried persons." NMCCA's opinion tells us that the corporal with whom Sgt McCracken engaged in sexual activity was married to a Marine sergeant. So what does this language mean? Also, is conduct that occurs in a barracks room inhabited by two other Marines "private"? I would say not -- I certainly wouldn't say that the members "necessarily" would find such conduct private. Finally, what does "in the absence of the evidence offered by the defense" mean? This case doesn't involve an argument that the military judge erroneously denied a motion for finding of not guilty. Why would we look at the evidence "in the absence of the evidence offered by the defense"? When the case went to the members, that evidence was before them as well.

As I said, I must be misreading Judge Baker's concurrence, since it doesn't seem possible that he could have been suggesting that the sexual conduct in this case involved unmarried Marines. Can someone please explain to me what I'm missing?

The majority's opinion strikes me as a very narrow decision answering the narrow granted issue: "WHETHER THE LOWER COURT ERRED BY AFFIRMING A LESSER-INCLUDED OFFENSE BASED ON A THEORY OF CRIMINALITY NOT PRESENTED BY THE GOVERNMENT AT TRIAL." I see Judge Stucky's point about a negative implication suggested by the majority's opinion, though the majority certainly does not indicate that it is making law on that issue, but rather eschews doing so in footnote 2. And I'm largely confused by Judge Baker's concurrence, which seems to decide the issue on the same basis as the majority opinion.

Fortunately Jones will revisit this area of the law early next term. That case should answer many of the questions that McCracken raises.

Bad press coverage

Here's a link to a Chicago Sun-Times article whose author (like its headline writer) seems to think that the Cox Commission is part of the U.S. military.

New commentator joins the CAAFlog herd

We're pleased to announce the addition of a new CAAFlog commentator: Zachary Spilman. Zachary, please introduce yourself to our readers.

CAAF and commissions

Senate Bill 1390 (available here), the Senate's version of the National Defense Authorization Act for Fiscal Year 2010, includes revisions of the Military Commissions Act to make the military commissions system more closely resemble the court-martial system. See id. at § 1031. The bill would amend the Military Commissions Act of 2006 to establish CAAF as the primary appellate review authority for the military commissions system. The bill kills off the Court of Military Commission Review, which currently consists of a mix of CCA and civilian judges, and removes the commission system from the D.C. Circuit's jurisdiction. Instead, the bill gives CAAF jurisdiction to review every commission conviction for legal error, factual sufficiency, and sentence appropriateness. The Supreme Court could then review CAAF's decision by writ of certiorari. Under the bill, 10 U.S.C. § 950c would provide that unless the accused waives appellate review, "in each case in which the final decision of a military commission under this chapter (as approved by the convening authority) includes a finding of guilty, the convening authority shall refer the case to the United States Court of Appeals for the Armed Forces."

10 U.S.C. § 950f would provide:

(a) Review by United States Court of Appeals for the Armed Forces- (1) Subject to the provisions of this subsection, the United States Court of Appeals for the Armed Forces shall have exclusive jurisdiction to determine the final validity of any judgment rendered by a military commission under this chapter.

(2) In any case referred to it pursuant to section 950c(a) of this title, the United States Court of Appeals for the Armed Forces may act only with respect to the findings and sentence as approved by the convening authority. It may affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved. In considering the record, it may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses.

(3) If the United States Court of Appeals for the Armed Forces sets aside the findings and sentence, it may, except where the setting aside is based on lack of sufficient evidence in the record to support the findings, order a rehearing. If it sets aside the findings and sentence and does not order a rehearing, it shall order that the charges be dismissed.

(b) Review by Supreme Court- The Supreme Court of the United States may review by writ of certiorari pursuant to section 1257 of title 28 the final judgment of the United States Court of Appeals for the Armed Forces in a determination under subsection (a).

Quick McCracken observation

Interestingly, the majority went the same way -- and for the same reason -- as Senior Judge Couch's dissent below. Senior Judge Couch, on whom the No Man bestowed "The Great" status, recently left NMCCA when he retired from the Marine Corps.

More later as I continue to explore the points of contention among CAAF's three opinions in McCracken.

New CAAF decision on CCA's authority to affirm an LIO on a theory not presented to the trier of fact at the court-martial

United States v. McCracken, __ M.J. ___, No. 08-0440/MC (C.A.A.F. July 10, 2009). Judge Erdmann writes for the majority. Judge Baker concurred in the result while Judge Stucky concurred in part and dissented in part.

The majority observed that NMCCA affirmed a finding of guilty to indecent acts based on a theory that the members weren't instructed on at trial. CAAF proceeded to quickly conclude that NMCCA erred by doing so, quoting United States v. Riley, 50 M.J. 410, 415 (C.A.A.F. 1999), for the proposition that an appellate court can't affirm an LIO on a theory not presented to the trier of fact. CAAF then set aside the sentence while authorizing a rehearing.

Judge Baker concurred in the result, noting that he "would decide this case based on the instructions given to the members by the military judge, rather than by breaking what is arguably new and unexplained ground in the law involving lesser included offenses." He observed that "the nature of the definition of indecent acts provided in the instruction in this case precluded the lower court from affirming the lesser included offense." Judge Baker then presented a list of legal questions that he suggests the majority decided by implication.

Judge Stucky also wrote separately, proclaiming that "indecent acts with another is simply not a lesser included offense of rape." Rather than remand for resentencing, he would return the case to NMCCA for reassessment of the sentence.

I'm still trying to understand all of the facets of the disagreements among the judges. The lines of demarcation between the majority opinion and Judge Baker's concurrence aren't readily apparent, though I think I understand the doctrinal distinction that Judge Stucky is making about how LIOs are to be determined. More later.

New CAAF opinion on detailing authority for defense counsel

United States v. Wiechmann, __ M.J. ___, No. 09-0082/MC (C.A.A.F. July 6, 2009). Chief Judge Effron writes for the majority, holding that "the convening authority erred in treating one of Appellant's defense counsel as not properly detailed," but concluding that the error was harmless. Judge Ryan concurred in the judgment.

After a captain with very little defense experience was detailed to represent a retirement-eligible lieutenant colonel, the Chief Defense Counsel of the Marine Corps detailed a highly respected Marine Reservist LtCol (Jon Shelburne) as a defense counsel in the case. The Reservist LtCol was on the East Coast and the case was being tried in Hawaii. The CA balked at providing funding for the Reservist's representation of the accused, contending that there was no authority for the Chief Defense Counsel of the Marine Corps to detail the Reservist to the case. When the Reservist sought a continuance of the Article 32 investigation, noting the funding problem, the CA responded that the Reservist "is not detailed as counsel and has no authority to act in this matter.” The Reservist subsequently showed up at the 32. The IO refused a defense request for a continuance, but allowed the Reservist to participate as defense counsel over the trial counsel's objection. When the two defense counsel tried to submit a PTA proposal to the CA, the CA refused to accept it, maintaining that the Reservist hadn't been properly detailed. The inexperienced active duty counsel then resubmitted the proposal without the Reservist's name on it, at which point the CA agreed to consider to PTA proposal, which the CA ultimately denied after refusing to meet with the Reservist.

The case was then referred to a court-martial. A military judge refused to allow the Reservist to participate in an 802 conference. Another military judge presided over the court-martial. He ruled that the Reservist had been properly detailed and that the Chief Defense Counsel of the Marine Corps had the authority to detail him. The military judge denied a UCI motion and a motion to reopen the Article 32 due to the limitations on the Reservist's ability to represent the accused at that point. While the motions were pending, the CA met with the Reservist concerning a PTA and ultimately the parties entered into a PTA.

During the plea inquiry, the military judge advised the accused that by entering into the PTA, he was giving up his right to challenge the denial of the motion for a new 32 and he was waiving any defect in the 32.

CAAF treated the military judge's ruling that the Reservist had been properly detailed as the law of the case. CAAF then ruled:

[T]he convening authority erred by restricting the role of Appellant's detailed defense counsel during the pretrial proceedings, including the proceedings concerning the Article 32 investigation and pretrial agreement negotiations. In so doing, the convening authority improperly interfered with the attorney-client relationship established at the time of LtCol Shelburne's initial detail as Appellant's defense counsel. These actions violated Appellant's rights under Article 27, UCMJ.

CAAF also concluded that "the Government's actions infringed Appellant's right to the assistance of counsel under Article 27 during pretrial proceedings before both the convening authority and the military judge."

CAAF then assessed whether the accused had been prejudiced by the error. First, CAAF held that there was not a denial of counsel rising to the level of a structural error. The court therefore had to determine whether the error was harmless. The majority then assumed without deciding that the error constituted a Sixth Amendment violation and performed a constitutional harmlessness test, concluding that the error was harmless beyond a reasonable doubt.

Judge Ryan wrote separately. She concluded that the error in this case was statutory and was not a constitutional violation. She pointed out that at all relevant times, the accused was represented by a detailed defense counsel who was recognized by the government and there is no claim that that counsel's representation was deficient. She observed that "a military accused has neither the absolute right to detailed counsel of choice, nor the right to the assistance of two counsel." Judge Ryan concluded that "there is no basis for even suggesting that Appellant's Sixth Amendment rights were violated by the limitations placed on Lt. Col. Shelburne."

Volume 57 of Naval Law Review now online

Volume 57 of the Naval Law Review, the 2009 issue, is now available here. There are a couple of articles of interest to military justice wonks. I've started, but haven't yet finished, reading this fascinating article: Maj John M. Hackel, Planning for the "Strategic Case": A Proposal to Align the Handling of Marine Corps War Crimes Prosecutions with Counterinsurgency Doctrine, 57 Naval L. Rev. 239 (2009). The issue also includes this article advocating revisions to the MCM to allow greater use of videoteleconferencing in presenting testimony at courts-martial: Maj Nicole K. Hudspeth, Remote Testimony and Executive Order 13430: A Missed Opportunity, 57 Naval L. Rev. 285 (2009).

CAAF grants [revised]

On Monday. CAAF granted review in United States v. Burleson, No. 09-0258/NA, where the granted issue is:

WHETHER, AT THE TIME OF APPELLANT'S COURT-MARTIAL, ARTICLE 134 (INDECENT ASSAULT), UNIFORM CODE OF MILITARY JUSTICE (UCMJ), WAS AN OFFENSE NECESSARILY INCLUDED IN ARTICLE 120 (RAPE), UCMJ, IN LIGHT OF ARTICLE 79, UCMJ, UNITED STATES v. MILLER, 67 M.J 385 (C.A.A.F. 2009), AND MANUAL FOR COURTS-MARTIAL, UNITED STATES, PT. IV, PARAS. 45.b(1) AND 63 (2005 ED.).

NMCCA's unpublished decision in the case is available here. United States v. Burleson, No. NMCCA 200700143 (N-M. Ct. Crim. App. Oct. 21, 2008).

CAAF also specified an issue in the previously-certified case of United States v. Bradley, No. 09-5002/NA, which we discussed here. The newly specified issue is "WHETHER APPELLEE WAIVED THE ISSUE OF THE DISQUALIFICATION OF THE TRIAL COUNSEL BY HIS UNCONDITIONAL GUILTY PLEAS." NMCCA's unpublished decision in the case is available here. United States v. Bradley, No. NMCCA 200501089 (N-M. Ct. Crim. App. Nov. 25, 2008).

CAAF to hear oral argument on new Article 120's constitutionality on 21 September

Today's CAAF daily journal update included an order dealing with the timing of CAAF's review of a recent NMCCA decision rejecting a challenge to the new Article 120's constitutionality.

For purposes of this post, I'm assuming that when the order refers to "Appellee," it's referring to the government. See C.A.A.F. R. 8(c). If that understanding is wrong, someone please let me know.

In the Neal case, the military judge held dismissed an aggravated sexual contact charge, concluding that the new Article 120 unconstitutionally shifts the burden of proof on an element of the offense (consent) onto the accused. The government appealed under Article 62. In an en banc decision, NMCCA reversed. United States v. Neal, 67 M.J. 675 (N-M. Ct. Crim. App. 2009) (en banc). The Judge Advocate General of the Navy then certified the case to CAAF for review, as we discussed here, making this one of the rare cases that a JAG certifies to CAAF even though the government prevailed at the CCA.

Both the Appellee (which I'm assuming is the government as represented by Code 46) and the Air Force's appellate government division (JAJG) moved for expedited consideration. The Appellee also moved to stay the court-martial proceedings in the case.

On Monday, CAAF denied the motion to stay proceedings while leaving the door open to revisiting that issue upon a further demonstration of good cause. CAAF also denied the motions for expedited review. Finally, CAAF set the case for oral argument at 0930 on 21 September 2009.

New Capital Court-Martial

Third Infantry Division and Fort Stewart CG, Maj. Gen. Anthony Cucolo, referred charges yesterday against Sgt. Joseph Bozicevich (3rd ID) for the alleged murders of Staff Sgt. Darris Dawson and Sgt. Wesley Durbin, fellow Third Infantry Division NCOs. See this reprint of a Fort Stewart, GA press release and WaPo (AP) story here. The charges were referred capitally, according to the press release. See our prior coverage of the Art. 32 and other proceedings here and here. The reports showed that Sgt Boz. is represented by Charles Gittins.

Marine Corps Times cover story on the Foster case

Yesterday we noted that the Senate Armed Services Committee has asked the DOD IG to look into the issue of appellate delay in the Department of the Navy. The Foster case figured prominently in the committee report's discussion of the topic.

As we've previously discussed, Foster was confined for nine years for raping his wife until the Navy-Marine Corps Court of Criminal Appeals finally decided his case and held that the evidence was factually insufficient to prove beyond a reasonable doubt that he raped his wife. United States v. Foster, No. NMCCA 200101955 (N-M. Ct. Crim. App. Feb. 17, 2009). The court also set aside the other findings of guilty in the case and authorized his retrial on those charges. The Marine Corps subsequently decided not to retry him.

Today, this week's Marine Corps Times arrived at Casa CAAFlog, featuring a cover story on the Foster case. Don Lamothe, Road to Redemption, Marine Corps Times, July 13, 2009, at 22. The article includes some good news and some not-so-good news. In the good news department, Foster has been promoted to staff sergeant, has received about $275,000 in back pay (minus $90,000 in taxes), has gotten married, and will get to stay in the Marine Corps until he is eligible to retire as at least a staff sergeant. In the not-so-good news department, SSgt Foster hasn't received the allowances he would have received had he not been convicted and confined and might not receive them at all, can't be considered for promotion to gunnery sergeant yet--though he might have been eligible to compete for promotion to E-8 by now had he not been convicted and confined--hasn't yet received all of the uniforms he's required to have, and is growing impatient and critical. The article quotes Foster as saying that while his isn't "bashing all Marines here, . . . I'm just disappointed with my unit and the way they've taken care of me."

The article also reports that Foster "said he has been warned not to speak out publicly about his situation without permission, with several MobCom officers telling him it could be considered a challenge to authority and lead to court-martial." MOBCOM's spokesman says that "Foster hasn't been warned not to speak with the media but ordered to use Marine public affairs when doing to to ensure the release of a 'full and accurate message.'"

Cox Commission hearing web cast available

NIMJ has posted links to the web cast of the Cox Commission's 16 June public hearing here.

To quote David Bowie, ch-ch-ch-changes

As CAAFlog approaches its third anniversary, we find ourselves about to outgrow our existing digital footprint.

Serendipitously, just as that is about to happen, we received an offer to move all of our operations to a new host that could accommodate both our blog and our website, which makes it possible for us to post content that we can then link to.

Obviously the No Man understands far more about the possibilities for improved "functionality" than this unfrozen caveman lawyer could ever understand. Perhaps the No Man will supplement this post with some of the details.

But here's what you need to know for now. In about a week, all of the material on our caaflog.com website may disappear. I'm planning to move only a small amount of the material that's there now to the new website. So if you want anything that's on caaflog.com, please download it now because it may no longer exist by the end of next week.

[No Man Tech Update: While we may lose some of the documents, we will move all the posts over to a new site. We'll keep the blogger site up in case you have old links to posts (actually that's more of an ego thing for us, as various news stories have linked to CAAFlog posts). Your old bookmark will take you to the new site--so hypochondriacs out there need not worry about extra mouse clicks. We suggest you update your bookmark and RSS feeds once you get to the new site. Our email addresses will remain the same, so feel free to email us with comments about the new site, or how much you liked the old one.]

SASC wants to sic DOD IG on DON's appellate delay problem

Here's some fascinating language from the Senate Armed Services Committee's report on the National Defense Authorization Act for Fiscal Year 2010, S. 1390:

Inspector General review of post-trial processes for court-martial record preparation and appellate review within the Department of the Navy

The committee believes that action is long overdue to analyze and correct longstanding problems with the post-trial processes for preparation of records of courts-martial and for appellate review of court-martial convictions within the Department of the Navy. The United States Court of Appeals for the Armed Forces (C.A.A.F.) in the case of Toohey v. United States, 60 M.J. 100 (C.A.A.F. 2004), established standards for assessing whether convicted service members had been denied due process under the Fifth Amendment to the Constitution as a result of denial of reasonable appellate processing of their cases. Since then, a succession of Navy and Marine Corps cases, including, but not limited to, United States v. Jones, 61 M.J. 80 (C.A.A.F. 2005); United States v. Allison, 63 M.J. 365 (C.A.A.F. 2006); United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006); United States v. Dearing, 63 M.J. 478 (C.A.A.F. 2006); and, most recently, the unpublished case of United States v. Foster have addressed extremely lengthy delays in appellate review. In the Foster case, the conviction of a Marine was set aside because his conviction for rape "could not withstand the test for legal and factual sufficiency." This Marine had been confined for more than 9 years awaiting appellate review of his case. These cases demonstrate that cognizant legal authorities in the Department of the Navy have not taken necessary and appropriate steps to ensure that the resources, command attention, and necessary supervision have been devoted to the task of ensuring that the Navy and Marine Corps post-trial military justice system functions properly in all cases.

The committee recognizes that a series of Navy Judge Advocates General have attempted to overcome the systemic challenges associated with preparing, authenticating, tracking, and forwarding records of trial from numerous commands entrusted with court-martial convening authority and ensuring that the appellate review process comports with all legal standards. The committee is convinced, however, that intervention is needed by departmental civilian and military leaders to definitively resolve these chronic administrative problems and that action should be taken immediately to resolve these issues.

The committee directs the Inspector General of the Department of Defense, in consultation with the Secretary of the Navy, to review the systems, policies, and procedures currently in use to ensure timely and legally sufficient post-trial reviews of courts-martial within the Department of the Navy. The review shall discuss and summarize the history of problems experienced by the Navy and Marine Corps since 1990 in ensuring appropriate appellate review of general and special courts-martial and curative measures.

The principal focus of the review shall be to determine whether the resources dedicated to post-trial processes, the information and tracking systems in use, the applicable procedures and policies, and the monitoring and supervision of actions of participants in the military justice system aimed at ensuring compliance with the procedural requirements of law are adequate to accomplish the requirements for due process of law under the Uniform Code of Military Justice and applicable case law. This review should be provided to the Secretary of the Navy no later than January 1, 2010.

The committee further directs the Secretary of the Navy, in consultation with the Chief of Naval Operations and the Commandant of the Marine Corps, no later than March 1, 2010, to submit to the Committees on Armed Services of the Senate and the House of Representatives a written report on the findings and recommendations of the Department of Defense Inspector General and actions taken or planned to address these findings and recommendations. The Secretary shall include in the report his assessment of the adequacy of (1) the Department of the Navy's processes and resources dedicated to affording legally sufficient post-trial review of all Navy and Marine Corps cases, (2) the systems in place to track courts-martial cases, and (3) means to ensure accountability and compliance with the requirements of the Uniform Code of Military Justice and applicable case law.

S. Rep. No. 111-35 at 131-33 (2009).

AFCCA denies recon and recon en banc in Nerad

We've previously discussed (here and here) AFCCA's opinion in United States v. Nerad, 67 M.J. 748 (A.F. Ct. Crim. App. 2009), holding that the Courts of Criminal Appeals are authorized to set aside a legally and factually sufficient but unjust conviction. AFCCA today issue this order denying the Government's motions for reconsideration, reconsideration en banc, and oral argument. United States v. Nerad, No. ACM 36994 (A.F. Ct. Crim. App. July 6, 2009) (order).


[DISCLAIMER: I entered an appearance for the defense in the case last week.]

CAAF Rules Guide 13th

I'm working on the next (13th) edition of the Guide to the CAAF Rules of Practice and Procedure. Any suggestions for cases and other developments to include will be gratefully received, either by email to me or by post on CAAFlog.

This week in military justice -- 5 July 2009 edition [CORRECTED]

This week at the Supremes: No military justice developments are expected at the Supremes this week, though I wouldn't be surprised to see the SG seek and the Supremes grant an extension of the deadline for filing the SG's response that the Supremes called for in Rodriguez v. United States, No. 08-1465. (The response is due 15 July.)

This week at CAAF: CAAF has completed oral arguments for the term. The court will presumably decide all of its pending cases between now and 31 August. By my count, there are nine argued cases that have yet to be decided. It appears that CAAF will issue just 46 opinions of the court this term.

This week at the CCAs: Though it's not on AFCCA's online oral argument calendar, the court will hear oral argument in United States v. Seldes on Wednesday. Bill Cassara will argue for the appellant.

NIMJ files amicus brief supporting cert in Loving's FOIA appeal

As the No Man has previously observed, USDB death row inmate Dwight Loving has a cert petition pending at the Supremes seeking review of his FOIA appeal, which argues for his right to see the recommendations as to whether the President should approve his death sentence. Loving v. Dep't of Defense, No. 08-1476.

NIMJ has now filed an amicus brief supporting Loving's cert petition. The amicus brief is available here. Loving's cert petition is available here. The SG has received an extension to file an opposition until 31 July 2009.

Rodriguez trailers: have I missed something?

A prominent theory in the field of Biblical studies is the Q document--a theoretical lost document that was relied on in the drafting of the Gospels of Matthew and Luke. Is there a Q document out there somewhere that explains Tuesday's Rodriguez trailers?

In four orders issued on Tuesday, CAAF summarily denies petitions for review. (Another two orders issued the same day dismiss petitions under Rogriguez.) Judge Baker issues the same concurring opinion in all four of the cases denying review, rather than dismissing the petition. Judge Baker's concurrence suggests that the petition in each of the cases was filed on the first business day after the 60th day following constructive notice with the 60th day falling over a weekend or on a holiday. Of course, CAAF already addressed that scenario in its order in Angell: "As constructive service was effected on August 13, 2008, Appellant’s sixty-day period within which to file a petition for grant of review under Article 67(b)(2), Uniform Code of Military Justice, 10 U.S.C. § 867(b)(2) (2000), expired on October 14, 2008, the first working day following the expiration of the actual sixty days on Sunday, October 12, 2008. See C.A.A.F. R. 34(a)." United States v. Angell, __ M.J. ___, No. 09-0098/AR (C.A.A.F. May 20, 2009) (summary disposition).

In Tuesday's concurrences, Judge Baker writes, "[H]aving concluded that Article 67(c), UCMJ, prescribes a sixty-day mandatory and jurisdictional filing deadline, the majority now concludes that this mandatory and jurisdictional sixty days does not expire if the sixtieth day falls on a weekend or holiday." He continues, "This conclusion is not based on Article 67, UCMJ, which makes no reference to weekends, holidays, or other calendar accounting exceptions." Then comes the sentence that has me confused: "Rather, the majority finds the exception to the mandatory and jurisdictional filing deadline under Article 67, UCMJ, in the Rules of the Supreme Court of the United States."

SCOTUS Rule 30.1, which governs computation of time, provides that if a filing is due on a weekend, holiday, or day when the Supreme Court building is closed, it's timely if filed on the next business day. But I haven't seen a CAAF order on this issue that cites the Supreme Court's rule on computation of time. Has anyone else?

Judge Baker continues by endorsing the Supreme Court's computation of time rule, observing that "[i]f a court is closed on the day a pleading is due, then the court should accept the filing on the next available day if the law permits this course of action." But, he adds, such a rule of reason can't "amend statutory language that a majority of this Court found 'mandatory and jurisdictional'" in Rodriguez. Judge Baker concludes, "I wish the majority had been as eager to apply this Court's Rules of Practice and Procedure to inform and interpret Article 67, UCMJ, as it now seems willing to do with the Supreme Court's Rules."

It seems to me that there are four likely possibilities explaining this enigmatic reference to the Supreme Court's rules: (1) CAAF has released some order or opinion dealing with computation of time for Rodriguez purposes that I haven't seen yet; (2) CAAF intended to release an order or opinion dealing with computation of time for Rodriguez purposes, but for some reason its release has been delayed but four trailer orders beat it out the courthouse door; (3) CAAF originally planned to issue a detailed order explaining computation of time for Rodriguez purposes but decided to issue a one-sentence denial instead, but Judge Baker retained language in his concurrence addressing the original reasoning; or (4) Judge Baker is disclosing the rationale for the four orders as discussed within the Court. Are there other reasonable possibilities? Which possibility seems most likely? If it's possibility number 1, someone please let me know what I missed.

No Tweet Justice in Michigan

Message to COL Dixon, don't re-invent the wheel for the Benchbook, Michigan just issued a rule banning Tweet Justice. Here is a portion of Michigan Supreme Court Rule 2.511 issued Wednesday:

(2) The court shall instruct the jurors that until their jury service is concluded, they shall not: . . .
(d) use a computer, cellular phone, or other electronic device with communication capabilities, or any other method, to obtain or disclose information about the case when they are not in court. As used in this subsection, information about the case includes, but is not limited to, the following:
(i) information about a party, witness, attorney, or court officer;
(ii) news accounts of the case;
(iii) information collected through juror research on any topics raised or testimony offered by any witness;
(iv) information collected through juror research on any other topic the juror might think would be helpful in deciding the case.

h/t to NLJ

CAAF opinion alert

CAAF has issued its opinion in United States v. Paige, __ M.J. ___, No. 08-0805/MC (C.A.A.F. July 1, 2009).

Marine found not guilty of violating order not to talk to the media

The San Diego Union-Tribune reports that yesterday Marine Private Gary Mariarz was found not guilty of an orders violation for speaking to the media. David Brahms was his civilian defense counsel. The members trial was held at Camp Pendleton. Greg Moran, Marine who talked to media acquitted, San Diego Union-Tribune, July 1, 2009.

Pvt Mariarz, who had been convicted at a previous court-martial of mishandling classified information, was charged with disobeying an order by speaking to a journalist from the San Diego Union-Tribune after allegedly being ordered, according to the article, "not to discuss the investigation into the security breach or classified materials with the news media."

As we discussed here, the military judge had ruled that the Union-Tribune reporter to whom Pvt Mariarz spoke could be called as a defense witness. But the defense ultimately elected not to do so.

h/t NBM3

Rodriguez and computation of time

It appears that CAAF ruled yesterday that if 60 days from service or constructive service of the CCA's opinion falls on a weekend or holiday, a petition is timely filed for jurisdictional purposes if it's filed on the next business day. We'll be looking for an order establishing that rule when the daily journal is updated to include yesterday's entries.

CAAF grant

CAAF granted review on the following issue today:

Whether Appellant's conviction for indecent acts with another must be set aside because the military judge issued erroneous and misleading instructions supporting indecent acts as an available lesser-included offense to the original rape charge and the resulting conviction under Charge I and its specification amounted to a fatal variance.

United States v. Jones, __ M.J. ___, No. 09-0271/AF (C.A.A.F. July 1, 2009) (order).

AFCCA's unpublished decision in the case is available here. United States v. Jones, No. ACM 36965 (A.F. Ct. Crim. App. Oct. 22, 2008).