Friday, February 27, 2009

CAAF grant and hearing notice

CAAF today granted review in United States v. Nance, No. 09-0164. Interestingly, CAAF ordered expedited briefing to allow the case to be argued on April 27. Here's the issue: "WHETHER APPELLANT'S PLEA OF GUILTY TO ENGAGING IN CONDUCT PREJUDICIAL TO GOOD ORDER AND DISCIPLINE WAS IMPROVIDENT BECAUSE OF A LACK OF EVIDENCE IN THE RECORD INDICATING THAT HIS CONDUCT WAS DIRECTLY PREJUDICIAL TO GOOD ORDER AND DISCIPLINE." Here's a link to the Air Force Court's opinion. United States v. Nance, No. ACM S31445 (A.F. Ct. Crim. App. Sept. 12, 2008).

Rumors of an Air Force JAG School web outage seem to be greatly exaggerated

The Air Force JAG School's web site is still up. Perhaps we'll maintain access to CAAF's web site after all.

Thursday, February 26, 2009

Audio of NMCCA's Garner argument

Here's a link to the audio of NMCCA's argument yesterday in Garner. It was a happy surprise to hear that the defense argument was delivered by LCDR Tom Belsky, a former colleague of several CAAFlog contributors including me.

Anticipated web outage reminder

As we previously noted, we understand that the Air Force JAG School's web site is supposed to go down for maintenance tomorrow. I assume that means that CAAF's web site will be down tomorrow. So anything that CAAF does tomorrow probably won't be available on its web site until Monday. The Air Force Court's web site will probably go down as well.

Master Sergeant Newell acquitted

We previously discussed the court-martial of Master Sergeant Newell for allegedly murdering an unarmed Afghan detainee and then mutilating the corpse by cutting off an ear. See here, here, and here. Yesterday a court-martial found Master Sergeant Newell not guilty of all charges and specs, as reported by this thorough article from today's Fayetteville Observer.

The final two pieces of the Judicial Conference puzzle

CAAF updated its web site's Judicial Conference page today by revealing the identity of Senior Administration Official #1 and Senior Administration Official #2. The lead off speaker will be DOD Principal Deputy General Counsel Dan Dell’Orto. The second speaker will be Amy Jeffress, Counselor to the Attorney General of the United States.

Sorry, but that means no winner in our latest CAAFlog contest.

Civilian habeas petitioner dismisses his action

James Adolph, the civilian contractor who had been held in pretrial confinement in Kuwait, apparently with an eye toward trial by court-martial under Article 2(a)(10), voluntarily dismissed his habeas petition today. A copy of his voluntary dismissal is available here. It explains that Mr. Adolph was returned to the United States yesterday and concludes:

While Mr. Adolph received this relief only after having been unconstitutionally confined by military authorities for 55 days with no indictment or preferral of charges, without the bail hearing to which civilians are entitled under the United States Constitution, and only after having filed a petition for a writ of habeas corpus, the fact remains that Mr. Adolph has now obtained all the relief he sought in his Petition and Amended Petition. Accordingly, Mr. Adolph hereby dismisses his Amended Petition for Writ of Habeas Corpus without prejudice.

Al-Marri To Be Indicted In Federal District Court

According to various news outlets, including the Washington Post, al-Marri (also known as Abdulkareen A. Almuslam), the last remaining unlawful enemy combatant in the United States, is about to be indicted in federal district court in the Central District of Illinois. The news stories indicated that he will be charged with, among other things, material support for terrorism.

This is a significant development, and a clear break from the Bush administration’s policy with respect to al-Marri.

As readers of this blog are well aware, the Supreme Court had taken up the al-Marri case, and is currently scheduled to hear his case this spring.

Recall that President Obama issued a series of Executive Orders during his first week in office. One aspect of that flurry of orders required an analysis of the al-Marri case. If the news stories are true---that he is about to be indicted---it appears that analysis concluded that he could be safely tried in federal district court.

Many of us who have been closely involved in detention-related matters, both inside and outside of the government, are not surprised at this development. Just yesterday, I mentioned at a panel event at the National Press Club that I believed that the Obama Administration would attempt to resolve the al-Marri case before it was argued before the Court.

Al-Marri’s attorney, Jonathan Hafetz, now with the ACLU (formerly with the Brennan Center) told the Washington Post (in the article linked above) that the decision to charge his client “is an important step in restoring the rule of law.” He added, “But it is vital that the Supreme Court hear the case because it must be made clear once and for all that indefinite military detention of persons’ arrested in the U.S. is illegal and that this never happens again.”

As stated above, al-Marri is currently detained in the Navy brig in Charleston, South Carolina. Once indicted, al-Marri would presumably be brought to a federal facility in Illinois, where his conditions of detention would be different from those he enjoys in the brig.

For those interested in some of the evidence allegedly in the possession of the government on al-Marri, take a look at the previously-classified Declaration of Mr. Jeffrey N. Rapp, Director, and Joint Intelligence Task Force for Combating Terrorism, found here.

If charged with material support for terrorism (as news outlets are suggesting he will be) and convicted, al-Marri could face a sentence of up to life in prison.

Ironically, if acquitted of all charges in federal district court, and the U.S. Supreme Court hears his case, and the Court upholds the Fourth Circuit’s opinion, al-Marri might find himself right back in military detention as an unlawful enemy combatant.

Wednesday, February 25, 2009

Audio of today's CAAF oral arguments

CAAF's web site already has audio of today's two oral arguments. Audio of Gardinier, No. 06-0591/AR, is available here. Audio of Miller, No. 08-0580/AR, is available here.

CAAFlog Makes Specter's SG Nominee Questions

. . . well sort of. In a slight that the list of contributors to the right won't forget, I am kidding of course, Senator, Senate Committee on the Judiciary Ranking Member Arlen Specter sent a written question to Solicitor General nominee Elena Kagan, that began:

Last year, in Kennedy v. Louisiana, the Supreme Court held that the death penalty for the crime of child rape always violates the Eighth Amendment. Writing for a five-justice majority, Justice Kennedy based his opinion partly on the fact that 37 jurisdictions – 36 states and the federal government – did not allow for capital punishment in child rape cases. In reality, however, Congress and the President specifically authorized the use of capital punishment in cases of child rape under the Uniform Code of Military Justice (UCMJ) in the National Defense Authorization Act of 2006, as reported first by Col. Dwight H. Sullivan in his blog and later by the New York Times. . . .

See the full set of questions and the nominee's answers here.

Court Martial News - Leahy Sentence and Quigley Dismissal

As we reported, here, Sgt Michael Leahy was convicted last week in the killing of four Iraqi detainees near Baghdad in March 2007. He received a life sentence, see coverage here. Two excerpts from what I believe are the sentencing arguments by Frank Spinner and Trial Counsel, Capt. Derrick Grace, pretty much sum up the case, see AP (courtesy of ABC) story here.

Spinner: "The tragedy resulted not so much by design but rather the working of fear, danger and madness attendant on many combat operations," Spinner said in his closing arguments.

Grace: "The defense can't just stand there and throw their arms up and say: 'We were protecting ourselves from future harm,'" Army Capt. Derrick Grace, the lead prosecutor, said, adding that the killings were the result of a breakdown of discipline and moral responsibility.

We also learned yesterday that the Army dropped all charges against one of Leahy's former co-accused, Sgt. Charles Quigley, see Stars and Stripes report here. As the story notes, apparently the Army had been pressing forward with a court-martial, scheduled to begin yesterday, in spite of indications that Quigley was not involved and his assistance in the investigation (including wearing a wire in a meeting with some of his co-accused). What turned the tide, and resulted in the dismissal, was the testimony of Quigley's boss, SSgt Jess Cunningham, that Quigley was not involved. Quigley will reportedly, WaPo report here, face Captain's Mast (Art. 15, for the unseaworthy) for not reporting the incident.

Tuesday, February 24, 2009

More info on CAAF Judicial Conference program

CAAF updated its Judicial Conference program page today, adding details about a couple of the lectures.

Judge Tatel's presentation is called, "Practice Before the U.S. Court of Appeals for the District of Columbia."

Judge Downey's presentation is called, "Lessons on a Second Career Spent in Trial Court."

And it looks like Professor Harris's presentation on racial profiling swapped times with the panel on Afghanistan rule of law.

CAAF hearing calendar updated

Yesterday CAAF updated its hearing calendar, adding two arguments on 14 April and two more on 15 April. CAAF also dropped its 26 February hearing date. Hearing dates remain for three days in March (9, 10, and 16) for which there are no scheduled arguments.

ACCA denies relief in Akbar

We noted in last week's TWIMJ that ACCA was hearing oral argument on 19 February in the capital appeal of United States v. Akbar, No. ARMY 20050514. The issue to be argued was "whether appellant's Motion for Appointment and Funding of a Forensic Psychiatrist and Forensic Psychologist to assist in appellate review should be granted." It didn't take ACCA long to deny relief. Here's a link to an order ACCA issued the day after argument. United States v. Akbar, No. ARMY 20050514 (A. Ct. Crim. App. Feb. 20, 2009) (order).

New CAAF decision: United States v. Macomber

Today CAAF released its decision in United States v. Macomber, __ M.J. ___, No. 08-0072/AF (C.A.A.F. Feb. 24, 2009). It's a 4-1 affirmance with the opinion of the court written by Judge Baker and a dissent by Judge Ryan. Here's a link.

Macomber presents the narrow legal question of "whether the military judge correctly ruled that the search authority had a substantial basis for determining that probable cause existed." Id., slip op. at 10. Yes, the majority ruled in a highly case-specific opinion. Id., slip op. at 13-18. No, Judge Ryan contended in a highly case-specific dissent.

Macomber continues this term's trend of narrow opinions that will have limited precedential effect. I don't mean to at all suggest that that's a bad thing; after all, it is judges' job to decide the cases before them.

Monday, February 23, 2009

NMCCA denies government motion for expedited ruling in Chessani Article 62 appeal

We've often discussed the court-martial of LtCol Jeffrey R. Chessani, USMC, and the government's appeal that followed Judge Folsom's ruling dismissing the charges against him without prejudice. See, e.g., here, here, and here.

The Government's Article 62 appeal in the case was orally argued on 17 October 2008. Congress has provided that "whenever practicable," Courts of Criminal Appeals shall give Article 62 appeals "priority over all other proceedings before that court." Art. 62(b), UCMJ. Yet NMCCA hasn't issued a ruling in the Chessani case.

I understand that last week, four months after the case was argued and eight months after Judge Folsom ordered charges dismissed without prejudice, appellate government counsel filed a motion for an expedited ruling in the case. And I understand that NMCCA denied that motion the day after it was filed.

Given that the dismissal of charges was without prejudice, I'm still perplexed by why the government appealed the ruling. LtCol Chessani's court-martial would be over by now if the case had simply been turned over to a different CA. The argument is often made that the military justice system can't provide all the protections of a civilian system because there is a special need for speedy disposition of charges in the military. But here's the government itself making a decision that needlessly prolonged the court-martial process.

Denied x 3

As expected, today's SCOTUS order list includes the denial of cert in Cabrera-Frattini v. United States, No. 08-830, and the pro se IFP cert petition in Robertson v. United States, No. 08-8095, as well as the denial of rehearing in Ryan v. United States, No. 08-422.

Sunday, February 22, 2009

This week in military justice -- 22 February 2009 edition

This is going to be a busy week.

This week at the Supreme Court: Tomorrow the Supremes will issue an order list with the results of Friday's conference. The list will also certainly include denials of the three military petitions (two cert petitions and one rehearing petition) circulated for Friday's conference.

This week at CAAF: CAAF will hear two oral arguments on Wednesday, both in Army cases. The first is in United States v. Gardinier, No. 06-0591/AR, where the granted issue is "WHETHER THE ARMY COURT ERRED WHEN IT FOUND THE MILITARY JUDGE'S ERRONEOUS ADMISSIONS OF EVIDENCE HARMLESS BEYOND A REASONABLE DOUBT." The second case in United States v. Miller, No. 08-0580/AR, where the granted issue is "WHETHER, AFTER FINDING THE EVIDENCE FACTUALLY INSUFFICIENT TO SUPPORT A FINDING OF GUILTY TO CHARGE III AND ITS SPECIFICATION (RESISTING APPREHENSION), THE COURT OF CRIMINAL APPEALS COULD AFFIRM A FINDING OF GUILTY TO A LESSER INCLUDED OFFENSE ON A THEORY NOT PRESENTED TO THE TRIER OF FACT." CAAF's hearing calendar also shows Thursday as an oral argument date, though no cases are scheduled to be heard that day. The end of this week marks the half-way point for CAAF's current term.

This week at the CCAs: NMCCA will hear oral argument on Wednesday in United States v. Garner. The assignments of error to be argued are:




IV. WHETHER WORDS ALONE ARE SUFFICIENT TO SATISFY THE “SUBSTANTIAL STEP” ELEMENT OF AN ATTEMPT, IF THEY AMOUNT TO "GROOMING." Compare United States v. Gladish, 536 F.3d 646 (7th Cir. 2008), with United States v. Goetzke, 494 F.3d 1231 (9th Cir. 2007).

AFCCA is scheduled to hear oral argument in United States v. Roach, No. ACM S31143 (frev), on Friday. Two issues will be orally argued. First, "HAS APPELLANT'S DUE PROCESS RIGHT TO REASONABLY PROMPT POST-TRIAL REVIEW BEEN DENIED BY THE PRESUMPTIVELY UNREASONABLE DELAY IN THIS APPEAL ARISING FROM THIS COURT'S ORIGINAL LEGALLY ERRONEOUS OPINION THAT IT ISSUED IN AN ATTEMPT TO 'GRAB POWER' FROM THE COURT OF APPEALS FOR THE ARMED FORCES?" The second issue to be argued in whether the Air Force Court should grant the government's motion to submit an affidavit from a member of the panel that originally decided the appellant's case discussing the original panel's consideration of the case. [DISCLAIMER: I will be presenting oral argument for the defense in Roach.]

Saturday, February 21, 2009

Yesterday's ACCA Fisher opinion [EXPLICIT LANGUAGE WARNING]

In Fisher, ACCA specified a couple of issues regarding sentencing evidence and argument in a guilty plea GCM drug case. United States v. Fisher, __ M.J. ___, No. ARMY 20080012 (A. Ct. Crim. App. Feb. 20, 2009).

Judge Ham's opinion for a unanimous ACCA panel indicates that PVT Fisher had some novel thoughts about extenuation and mitigation. The opinion tells us that he "made a rambling, profanity-laced unsworn statement," which included his comment that his "shit smells better than most of the people in here." Id., slip op. at 4 & 4 n.1. We can only imagine how the trial defense counsel felt when those words came out of the accused's mouth. But ACCA's opinion didn't involve the defense's sentencing evidence; rather, it involved the prosecution's.

The only witness in the government's sentencing case was PVT Fisher's company first sergeant. SFC Essinger testified in aggravation that delay in bringing Fisher's case to trial caused a "perception" that the command was "soft on--on the major crimes." The trial counsel also elicited SFC Essinger's testimony that preparing for Fisher's trial had been labor intensive fand inconvenient for his unit. The defense didn't object to this testimony.

In his sentencing argument, the trial counsel requested 15 months of confinement, a BCD, total forfeitures, and reduction to E-1. That's precisely the sentence that the military judge imposed. The TC's sentencing argument highlighted the inconvenience Fisher's unit suffered to prepare the case for trial, including taking Fisher to appointments with his defense counsel. The TC also asked the military judge to "send a message to soldiers of this unit, many of them seated here today, that the command is not soft on crime." The defense didn't object to this argument.

ACCA specified two issues as to whether this evidence and argument constituted plain error. The government conceded, and ACCA agreed, that "SFC Essinger's testimony concerning the time devoted to appellant's court-martial and trial counsel's use of this evidence in sentencing argument were improper." ACCA held that the evidence and argument "were clear, obvious error." ACCA also concluded that "SFC Essinger's testimony that the delay in appellant's court-martial caused other soldiers to view the command as soft on crime was also clear, obvious error, as was trial counsel’s comment on this testimony in the sentencing argument." ACCA was particularly troubled by the prosecution's evidence and argument about "the hours spent by the command escorting appellant to and from his legal appointments. This evidence and argument is inappropriate and casts in an improper and negative light the unquestioned necessity of appellant's consultation with his defense counsel and preparation of his case."

But ACCA found that the errors were harmless, despite the military judge imposing precisely the sentence requested by the TC in his clearly and obviously erroneous sentencing argument. The ACCA emphasized that the defense didn't object to either the evidence or the argument. Instead of objecting, the trial defense counsel "chose to attack the improper evidence through effective cross-examination, and to attack the improper argument through counterargument." This minimized the damage that the errors caused. In declining to grant relief, ACCA also emphasized that this was a judge-alone trial and noted that "there is no requirement for the military judge to state on the record that he did not consider improper argument or evidence."

ACCA concluded, "Appellant's arguments would carry more weight if trial defense counsel objected at trial or if this case was tried before members instead of by military judge alone. But neither is the case, and, under the facts presented, appellant has failed to demonstrate that any improper evidence or argument materially prejudiced his substantial rights. Therefore, he is not entitled to any relief." Id., slip op. at 10 (internal citations omitted).

The issue in Fisher is similar to that in Stephens, No. 08-0589/AF, which was argued at CAAF on 12 January. The granted issue in Stephens is "WHETHER THE MILITARY JUDGE ERRED BY ALLOWING THE FATHER OF THE ALLEGED VICTIM TO TESTIFY AS EVIDENCE IN AGGRAVATION, OVER DEFENSE OBJECTION, AS TO THE IMPACT ON THE ALLEGED VICTIM OF THE INVESTIGATION AND COURT-MARTIAL." Stephens, however, was tried before members and the defense counsel objected to the evidence. Fisher's rationale, though not its outcome, will likely be strengthened or undercut when CAAF releases its opinion in Stephens.

[DISCLAIMER: I am one of the appellate defense counsel in Stephens.]

NYT article on Martinez PTA offer

I don't know how I missed this yesterday. Yesterday's NYT had a lengthy article about last year's Martinez capital court-martial that ended in an acquittal at Fort Bragg. Here's a link. It reported that two years before the trial, the defense made a written PTA offer, signed by Martinez and his two defense counsel, to cap the sentence at confinement for life with eligibility for parole. It also reported about the convening authority, Lieutenant General John R. Vines, rejecting the offer. I wonder how that particular document came into the possession of the New York Times. Interestingly, one of the prosecutors in the case, Major John C. Benson, is quoted as saying, "I don’t think there can be any doubt whatsoever as to his guilt."

Friday, February 20, 2009

New published ACCA decision

ACCA issued a published opinion today. United States v. Fisher, __ M.J. ___, No. ARMY 20080012 (A. Ct. Crim. App. Feb. 20, 2009). Here's a link. I'll try to provide a synopsis tomorrow unless one of the other CAAFlog contributors beats me to it.

Meaningful relief cont'

Yesterday we discussed the case of United States v. Burch and the quest for meaningful appellate relief. Today an alert reader called our attention to an article in the current issue of the Marine Corps Times casting doubt on whether DFAS will actually provide monetary relief as a result of any appellate ruling short of a complete reversal without retrial. William H. McMichael, Ruling: Pay restoration is not guaranteed, Marine Corps Times, Feb. 23, 2009, at 18. Unfortunately, the article appears to be available to subsribers only. I hope I can offer this much of the lede without offending copyright protections:

When a military judge reverses or sets aside a court-martial ver­dict and a new trial is not ordered, all rights and privileges — includ­ing back pay — are restored to the accused.

But if a sentence is merely reduced, pay restoration is not automatic.
McMichael reports that DFAS makes case-by-case determinations as to whether to restore money in other cases.

Sgt Nelson's court-martial delayed again

Here's a link to a Marine Corps Times article reporting that the court-martial of Sgt Jermaine Nelson, who was scheduled to be tried this week on charges alleging the shooting a detainee in Fallujah in 2004, has been pushed back again.

The related court-martial of Sgt Ryan Weemer is scheduled for trial on 30 March. Former Marine Sgt Jose Nazario was acquitted on similar charges in a MEJA prosecution in U.S. district court.

Conliffe update

Yesterday we noted NMCCA's handling of Burch on remand (more about that later). Tonight we note ACCA's even faster handling of Conliffe on remand.

On 7 January, CAAF knocked down a West Point cadet's housebreaking conviction to an unlawful entry and authorized ACCA to reassess the sentence. United States v. Conliffe, 67 M.J. 127 (C.A.A.F. 2009). We discussed that case here. The mandate in Conliffe didn't issue until 2 February. Somehow, just 15 days later, ACCA issued this opinion in the case, reaffirming the original sentence. United States v. Conliffe, No. ARMY 20040721 (A. Ct. Crim. App. Feb. 17, 2009)(per curiam). Does ACCA not allow appellate defense counsel to provide input in a situation like this? If not, that seems problematic.

Adolph indictment

One of the best things about hosting a blog is the cool stuff that people unexpectedly throw over our electronic transom. Here's a link to the indictment of James Adolph that I mentioned yesterday when discussing DOJ's motion for an extension of time to answer his habeas petition.

Not surprisingly, Judge Sullivan today granted DOJ's consent motion to extend its deadline for answering the habeas petition. Here's the minute order:

MINUTE ORDER granting Consent Motion for Extension of Time to Respond. Response shall be filed by 3/2/09. Signed by Judge Emmet G. Sullivan on February 20, 2009. (lcegs1) (Entered: 02/20/2009)
Adolph v. Gates, No. 1:09-cv-00135-EGS (D.D.C. Feb. 20, 2009).

Lots of updates

The No Man has already posted the big news of the day. I may have more updates than time, so today's posts may stretch into tomorrow.

Sgt Leahy Found Guilty of Pre-Med Murder

Here is a link to a Stars and Stripes report on the guilty findings in the Leahy court martial in Vilseck, Gemany. According to the report, Sgt Leahy was convicted of premeditated murder and conspiracy to commit murder in the deaths of four Iraqi detainees along a canal in Baghdad in March 2007. Leahy was acquitted of accessory charges in a January 2007 incident where Leahy had allegedly assisted 1stSgt John Hatley in the killing of another detainee. Sentencing was to resume tonight (Germany time), though there won't be much to decide in light of the conviction (life or LWOP), but I have not heard the result.

In light of criticisms lodged against the MilJus system, I wonder if this comment in the TC's closing, as quoted by S and S, was playing to the mass audience, "If you buy the defense argument, you are saying there is no such thing as premeditated murder in a time of war — that the U.S. does not hold itself to the same standard it expects of others."

A question to our readers, a fact in the case that didn't get a lot of press, but was mentioned recently was that Sgt Leahy was a medic--see BBC report here. I wonder if that helped or hurt Leahy in this type of case? I think it probably was held against him, thoughts?

Thursday, February 19, 2009

Burch update

In its first opinion of the current term, CAAF reversed NMCCA for failing to grant relief where the accused was wrongfully confined for 223 days. United States v. Burch, 67 M.J. 32 (C.A.A.F. 2008). The decision remanded the case to NMCCA "to determine and award meaningful sentence relief to Appellant pursuant to its powers under Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2000)." While its decision isn't on its web site, NMCCA on Tuesday released this opinion in the case. United States v. Burch, No. NMCCA 200700047 (N-M. Ct. Crim. App. Feb. 17, 2009).

Did Marcum establish an additional element in an Article 125 consensual sodomy case?

Yesterday we noted Major Joel P. Cummings' very interesting article on Article 125 in the most recent Army Lawyer, available here. Twice in the article, MAJ Cummings opines that Marcum essentially created a new "prejudicial to good order and discipline" element for consensual sodomy charges preferred under Article 125. Is Article 125, Sodomy a Dead Letter in Light of Lawrence v. Texas and the New Article 120?, Army Law., Jan. 2009, at 7, 9 ("the Marcum court essentially added to Article 125 the element of prejudice to good order and discipline from Article 134."; "In effect, the Marcum court made consensual sodomy like an Article 134 offense requiring an element of prejudice to good order and discipline.").

We also noted that during yesterday's oral argument in Harvey at the Air Force Court, both the appellate defense and appellate government counsel agreed that Marcum had created a new de facto element for consensual sodomy charges tried under Article 125 (though the appellate government counsel argued that this de facto element didn't apply to consensual sodomy charges tried under Article 133). Unbeknownst to me until today, at some point yesterday the Air Force Government Trial and Appellate Counsel Division (JAJG) tried to call an oral argument Mulligan. This is from a motion JAJG filed yesterday at some point after the oral argument:
Appellee would like to clarify a position taken by counsel during oral argument concerning the applicability of the Marcum factors. In cases where Marcum factors apply, the factors do not involve questions of fact that would be given to the members to determine. The United States does not believe that Marcum factors apply or should be given as part of the instructions to panel members in cases where a violation of Article 133, UCMJ, is charged. As explained during oral argument, a charge of Article 133 is wholly different in its nature and the considerations involved than a charge of Article 125. If, however, this Court determines that Marcum factors apply when Article 133 is charged, this means that the military judge should consider the Marcum factors as a question of law to determine if the charge is constitutional as applied to an accused. It does not mean that the members are given instructions as if the Marcum factors are a part of the elements to determine findings of fact. This is the position of the United States despite counsel's statements during oral argument.

Likewise, in cases like Marcum where a violation of Article 125, UCMJ, is charged, the Marcum factors apply in that the Court should consider the factors as a matter of law to determine whether the charge is constitutional as applied to that case. This is what the Court did in Marcum regarding sodomy with a subordinate, and the Court found that the charge was Constitutional as applied rather than remanding the case for a finding of fact. The application of the Marcum factors does not mean that the factors become a part of the elements for sodomy or that instructions to the members should include the Marcum factors. Marcum means that the Court should consider the Marcum factors as a matter of law to determine whether the charge is constitutional as applied.
I'm actually surprised by JAJG's attempt to walk back its position. If I were government counsel at a court-martial, I would prefer that the members rather than the military judge decide whether the case fell within one of the three Marcum factors. If it's treated as a question of fact, then the members decide it, subject only to a factual and legal sufficiency review by the CCA and possible legal sufficiency review by CAAF and the Supremes. If, on the other hand, it's treated as a question of law, then it's subject to de novo review by the CCA, by CAAF, and by the Supremes. On the defense side of the house, at the trial level I would prefer it to be a question of law that I could ultimately win at CAAF rather than a factual question that the members would, in essence, definitively resolve. In some future Article 125 prosecution, a trial defense counsel who has the same view as me can now rely the government's Harvey motion from yesterday in support.

Another day, another DOJ motion in a civilian contractor habeas case

We previously discussed the habeas petition in the civilian contractor case of Adolph v. Gates, No. 1:09-CV-00135 (EGS). Today DOJ filed this motion for extension of time in the habeas case noting that Adolph has been indicted under MEJA in the United States District Court for the Western District of Oklahoma for the same alleged offenses for which DOD was holding him in Kuwait. As a result, Secretary Gates has "withheld court-martial proceedings against Petitioner." U.S. Marshals are expected to take Adolph from Kuwait to Oklahoma no later than 2 March. "In light of these developments," DOJ observes, "this litigation may soon be resolved without the need for judicial action on Petitioner’s Amended Petition."

Prepare for web site outages

I understand that the Air Force JAG School's server will be down for 24 hours starting on 28 February. History suggests that will cause CAAF's and the Air Force Court's web sites to go down. I'm planning to stock up on water, canned goods, and information before the web site outages.

Wednesday, February 18, 2009

January 2009 Army Lawyer out -- with Article 125 article

Today the Air Force Court of Criminal Appeals heard a fascinating argument in which the government and the defense agreed that Marcum created an additional de facto element that must be satisfied in an Article 125 prosecution. The government, however, argued that that additional element didn't need to be satisfied in the Harvey case because his act of consensual, noncommercial, private same-gender oral sex charged under Article 133 rather than under Article 125. The argument should result in an interesting opinion.

Also today, with impecable timing, the January 2009 issue of the Army Lawyer went up on the web with a lead article about Article 125. Major Joel P. Cummings, Is Article 125, Sodomy a Dead Letter in Light of Lawrence v. Texas and the New Article 120?, Army Law., Jan. 2009, at 1. Here's a link.

Military justice practitioners will also be interested in the issue's article on military justice in a deployed setting, available here. Captain A. Jason Nef, Getting to Court: Trial Practice in Deployed Environment, Army Law., Jan. 2009, at 50.

Judge denies motion to dismiss in Blackwater contractors MEJA case

We've previously noted the ongoing MEJA prosecution of Blackwater contractors and the thorny jurisdictional issues that case presents. Today's Washington Post reports that yesterday Judge Urbina denied a motion to dismiss on jurisdictional grounds. But while declining to dismiss the case, Judge Urbina reportedly characterized the jurisdictional challenge as "rather strong."

In related news, the WaPo business section reported Saturday that Blackwater Worldwide has changed its name to Xe.

For those who really care about this case, here's the minute entry entered in the case's docket today:

Minute Entry for proceedings held before Judge Ricardo M. Urbina: Motion Hearing as to PAUL ALVIN SLOUGH, NICHOLAS ABRAM SLATTEN, EVAN SHAWN LIBERTY, DUSTIN LAURENT HEARD, DONALD WAYNE BALL held on 2/17/2009 re 34 MOTION to Dismiss Case filed by DONALD WAYNE BALL, PAUL ALVIN SLOUGH, DUSTIN LAURENT HEARD, EVAN SHAWN LIBERTY, NICHOLAS ABRAM SLATTEN, heard and denied. 35 Joint MOTION to Dismiss Case for Lack of Venue filed by DUSTIN LAURENT HEARD, heard and denied. (Bond Status of Defendant: Defendants on PR Bond) (Court Reporter: Wendy Ricard) (Defense Attorney: Michael Barakz, Mark J. Hulkover, and Bruce Bishop-#1, Thomas G. Connolly, and Steven A. Fredley-#2, William F. Coffield-#3, David Schertler, Danny Onorato and Veronica Renzi Jennings-#4, Steven J. McCool-#5; US Attorney: Jonathan M. Malis, Kenneth Clair Khol, Barry Jonas, Joseph N. Kaster) (hsj, ) (Entered: 02/18/2009)
United States v. Slough, et al., No. 1:08-cr-00360-RMU (D.D.C. Feb. 18, 2009).

CAAF fills in another piece of the Judicial Conference puzzle

An updated CAAF Judicial Conference schedule is now available here. The new schedule fills in the first day's 1530-1700 slot, previous listed as invitation pending, with Professor David A. Harris of the University of Pittsburgh School of Law delivering a lecture called, "Racial Profiling in Law Enforcement and National Security: The Right Thing at the Right Time?"

Update on civilian contractor's habeas case

We previously noted the Breda v. Gates habeas case, which challenges a civilian contractor's susceptibility to court-martial jurisdiction. On 5 February, Judge Huvelle issued a show cause order in the case. Today, DOJ moved to dismiss the case as moot. DOJ reports that it lifted travel restrictions on the contractor and that he has now flown home to Texas. I've posted a copy of DOJ's motion here.

3, 3 High Profile Courts Martial This Week, Ah, Ah, Ah

We learned today that in addition to following the high profile courts martial of Sgt Michael Leahy in Germany and Sgt Jermaine Nelson in Camp Pendleton, we are going to need to watch things in the Bluegrass state as well. The court martial of SSgt Hal Warner, according to a local news report here, will be short circuited by a plea agreement. According to local news reports, SSgt Warner will "plead guilty to charges of assault, maltreatment and making a false official statement." The report also quotes Warner's lawyer, Ed Smith, as saying that the deal "calls for charges of premeditated murder, accessory after the fact to murder and obstruction to justice to be dismissed." Warner along with 1stLt Michael Behenna are accused of killing an Iraqi detainee in Tikrit. According to news reports, here, preliminary hearings ended up excluding Warner's confessions, though I am guessing his co-accused won't be so lucky in excluding that evidence.

Testimony in the Leahy case began yesterday. According to AP, here, SSgt Jess Cunningham's testimony put a pistol in Sgt Leahy's hand as he walked toward the blindfolded and handcuffed detainees and just before he heard shots that killed the four detainees. According to the report, Cunningham testified that Leahy's co-accused, Sgt Hatley, asked Cunningham to participate, but he refused.

According to the ever reliable North County Times, here, the Sgt Jermaine Nelson court-martial appears to be stalled with pre-trial motions. According to the report, defense counsel Phil Simmons is objecting to the expert on PTSD provided to the defense now that the government has hired a world renowned PTSD expert. Reports say defense counsel want an equally qualified expert, since there own conceded that he is "not as qualified as the prosecution's expert," or at least the one they originally requested.

Tuesday, February 17, 2009

An important unpublished NMCCA opinion

I know -- usually "important unpublished opinion" is an oxymoron, but not today. NMCCA released an unpublished decision setting aside a rape conviction as factually insufficient, setting aside the remaining convictions due to cumulative error, and providing major relief based on appellate delay. United States v. Foster, No. NMCCA 200101955 (N-M. Ct. Crim. App. Feb. 17, 2009). Judge Maksym wrote for himself and Senior Judge Couch and Chief Judge O'Toole. While fully joining in the opinion of the court, Chief Judge O'Toole also authored a concurring opinion expressing his thoughts about the appellate delay issue. The opinion is available here.

Sgt Foster was convicted of raping his wife five years before his court-martial, as well as a couple of specs of aggravated assault and communicating a threat. The rape conviction was based entirely on his wife's testimony (after the allegation arose during a contested child custody case) and prior consistent statement evidence. On the other side of the ledger, Sgt Foster and his wife continued to have sexual relations after the alleged rape, apparently including on videotape. He received a sentence that included confinement for 17 years and a DD.

NMCCA's Foster opinion twice suggests that it is reversing the rape conviction on both legal and factual sufficiency grounds, but it seems pretty clear that it actually reversed the conviction only on factual sufficiency grounds. Compare id., slip op. at 3 ("We conclude that the appellant’s conviction for rape cannot withstand the test for legal and factual sufficiency and dismiss it with prejudice."), and 5 ("In his first assignment of error, the appellant contends the evidence that he raped Heather Foster was legally and factually insufficient. We agree."), with id., slip op. at 7 ("Considered in the light most favorable to the Government, a reasonable member could choose to believe the victim, and to disbelieve evidence inconsistent with guilt"; and "we hold that his conviction of rape was factually insufficient").

The court then proceeded to reverse the other convictions as well, finding cumulative error. First, the court found plain error in a government expert witness's testimony during which she essentially offered expert opinion that the charged offenses occurred. In a nice turn of phrase, NMCCA observed that the witness, Dr. Rusher, "adopted the facts as advanced by the alleged victim and cloaked them in a physician’s white coat, presenting them as scientific findings to the members." Id., slip op. at 10. NMCCA then concluded that "the military judge was unable to 'unring the bell,'" despite trying to do so by giving the members a curative instruction. Id., slip op. at 12.

The court also noted that the military judge permitted the members to hear testimony of the alleged victim's six-year-old son, only to then learn that he "had not been born at the time of one of the charges about which he was testifying, and that he was approximately two years old at the time of the most recent alleged act." Id., slip op. at 13. The military judge then ordered the boy's testimony stricken and instructed the members to disregard it. NMCCA concluded that the combined "errors call into question the fairness of the appellant's trial." Id., slip op. at 14. The court therefore vacated the findings. Id.

Now here's the really interesting part. Having set aside and dismissed the rape conviction and set aside the remaining convictions 10 years into the accused's 17-year sentence, NMCCA went all Reverend Dimmesdale on itself, self-flagellating over unreasonable appellate delay. While noting unreasonable delay by just about everyone involved in the case's post-trial processing, NMCCA reserved its harshest words for itself. In applying the second Barker v. Wingo factor, the court concluded: "the bulk of delay in this case is attributable to the manner in which this court failed to properly advance this litigation. The delay incurred by this court’s ineffective action amounts to nothing less than judicial negligence." Id., slip op. at 17. The court also concluded that Sgt Foster was severely prejudiced by the delay, observing that "the appellant has served nearly ten years of confinement, in part, for an offense of which he should not have been convicted." Id., slip op. at 18. NMCCA concluded that the appellate delay violated Sgt Foster's due process rights and that the violation wasn't harmless. To remedy that violation, NMCCA capped the authorized sentence at any rehearing on the undismissed charges at a punitive discharge. Id., slip op. at 19.

In his separate concurrence, Chief Judge O'Toole again flayed everyone involved in the case's post-trial processing, lashed NMCCA the hardest, noted improvements that the Judge Advocate General of the Navy had made to avoid a repetition of such delay, and called on everyone in the system to remain vigilant. Id., slip op. at 19-20 (O'Toole, C.J., concurring).

With its useful discussions of both cumulative error and appellate delay, Foster seems destined to become one of the most frequently cited unpublished CCA opinions.

More on tomorrow's Harvey argument

One interesting aspect of the Harvey case being argued tomorrow at AFCCA is that it's an Article 69 referral case. While Captain Harvey was sentenced to a dismissal and a reprimand, the convening authority (apparently in an act of pure clemency) disapproved the dismissal. The Judge Advocate General of the Air Force then certified the case to AFCCA pursuant to Article 69(d). One very knowledgable individual tells me that such a referral is extremely rare in the Air Force -- like twice-a-decade rare. How does that compare with the Article 69(d) referral rates in the other services?

Court Martial News - Updated

As CAAFlog previewed in TWIMJ, we'll be following the Nelson court martial at Pendleton this week. What we both missed was that the Sgt. Michael Leahy court martial will be convening in Vilseck, Germany this week, news here. Leahy is accused in the murders four Iraqi detainees outside of Baghdad in 2007 and another detainee earlier the same year.

The time difference between the two courthouses is approx. 12 hours, so we will do our best to give you an update that covers the same day's news for each--though I won't guarantee that.

Update: The trial of Sgt. Michael Leahy is underway in Germany, AP report here. According to reports, SSgt Jess Cunningham, who last week had all charges in the same incident dropped (report here), will testify against Sgt. Leahy. Cunningham reportedly sat in a HMMMV and refused to participate in the killings; then reported the incident 6 months later to military authorities (apparently at first to a TDC). According to the same report, defense counsel Frank Spinner objected to Cunningham being allowed to testify--though reports don't say what the issue about Cunningham's testimony had been or the basis for Spinner's objection beyond insufficient time to prepare for his testimony.

Sunday, February 15, 2009

This week in military justice -- 15 February 2009 edition

While this will be a truncated work week due to Monday's Presidents Day holiday, it will nonetheless be an eventful one.

This week at the Supreme Court: The Supremes will hold a conference on Friday and several military justice cases have been distributed for it. The cert petition in Cabrera-Frattini v. United States, No. 08-830, the pro se IFP cert petition in Robertson v. United States, No. 08-8095, and the rehearing petition in Ryan v. United States, No. 08-422, have all been distributed for Friday's conference. We'll probably learn those cases' fate (which will almost certainly be denials) a week from tomorrow.

This week at CAAF: CAAF has no oral arguments scheduled this week.

This week at the CCAs: On Wednesday, AFCCA will hear oral argument in a particularly interesting case. The issue that will be argued in United States v. Harvey, No. ACM 36641, is: "IN LIGHT OF UNITED STATES V. MARCUM, 60 M.J. 198 (C.A.A.F. 2004), DID THE MILITARY JUDGE ERR BY NOT ALLOWING THE MEMBERS TO DETERMINE WHETHER APPELLANT'S CONSENSUAL HOMOSEXUAL SODOMY INVOLVED (1) A PROTECTED LIBERTY INTEREST, (2) FACTORS THAT EXCLUDED IT FROM PROTECTION, AND/OR (3) FACTORS RELEVANT SOLELY IN THE MILITARY ENVIRONMENT THAT EXCLUDED IT FROM PROTECTION?" My understanding is that AFCCA denied a request by SLDN to participate in the argument as amicus. Can anyone definitively confirm or deny that understanding?

Thursday is a biggie at ACCA. The Army Court will be hearing oral argument on an interlocutory issue in the capital appeal of United States v. Akbar, No. ARMY 20050514. ACCA's web site tells us that ACCA "granted argument on whether appellant's Motion for Appointment and Funding of a Forensic Psychiatrist and Forensic Psychologist to assist in appellate review should be granted."

This week at the trial level: The No Man informed me that the court-martial of Marine Sgt Jermaine Nelson will start this Wednesday, as reported here by the North County Times. Sgt Nelson is charged with unpremeditated murder in the alleged shooting of a detainee and several other related offenses. He is an alleged co-actor of former Marine Sgt Jose Nazario, who was tried and acquitted in U.S. district court on charges arising from the same incident. Sgt Nelson was held in contempt during that trial for refusing to testify.

Thursday, February 12, 2009

An appellate case's unusual trajectory

When we recently surveyed the relief rate for cases decided by AFCCA in calendar year 2007, one of the cases in which the court granted meaningful relief was United States v. Melson, No. ACM 36523 (A.F. Ct. Crim. App. Sept. 14, 2007) (per curiam). SSgt Melson received a sentence that included 12 years' confinement and a DD for a Whitman's Sampler of offenses ranging from possession of drug paraphernalia to attempted voluntary manslaughter for firing several birdshot-filled 12-gauge shotgun shells at his victim. (This resulted in AFCCA's wonderful line that "birdhsot can be lethal to more than just birds." Id., slip op. at 4.)

One of SSgt Melson's many offenses was bigamy and another was making a false official statement about his marital status on a Georgia state marriage license application. Not surprisingly, AFCCA held that the statement to a Georgia court clerk wasn't "official" and set aside the 107 conviction. The court reassessed the sentence and lopped 8 months off the 12 years of confinement, thus providing very meaningful relief. (To once again quote ex-Governor Rod Blagojevich, getting out of prison eight months early "is a [expletive deleted]ing valuable thing.")

After shooting down a factual/legal sufficiency challenge to the attempted manslaughter conviction, AFCCA turned to an IAC claim. Melson argued that his trial defense counsel should have raised an illegal pretrial punishment claim but didn't. Melson submitted a detailed affidavit painting a bleak picture of the county jail where he was held pretrial. The government submitted no counter-affidavit. AFCCA found IAC due to the trial defense counsel's failure to seek additional sentence credit. The court remedied the error by awarding 142 days of Suzuki credit.

Having failed to obtain and present an affidavit during the initial litigation before AFCCA, the government then obtained an affidavit from the trial defense counsel and sought reconsideration, which AFCCA denied. The Judge Advocate General of the Air Force then certified the case to CAAF, which reversed the Air Force Court, holding that it couldn't rule on the IAC claim until it had first "order[ed] a response from the trial defense counsel as to the allegations." United States v. Melson, 66 M.J. 346 (C.A.A.F. 2008). As I've previously noted, I'm not a fan of CAAF's Melson opinion, which seems to encourage and reward government sandbagging and, darn it, sandbagging is the defense's job.

In Melson, CAAF "set aside" AFCCA's opinion. Today AFCCA issued its replacement opinion. United States v. Melson, No. ACM 36523 (f rev) (A.F. Ct. Crim. App. Feb. 12, 2009) (per curiam). The replacement opinion reached the same result as to the false official statement charge and provided the same remedy. But this time, there was no extra 142 days of credit due to the pretrial confinement conditions. In rejecting the IAC claim, AFCCA concludes that "[s]ome of the appellant's assertions are corroborated (co-mingling of prisoners, lack of socks and undergarments, and lack of legal resources at the facility), others are contradicted (lack of medical treatment and lack of any legal resources), and others are merely speculative or conclusory (extreme temperatures, harassment by a security guard, and being transported in prison garb)." Id., slip op. at 7. Okay, so several claims are corroborated and a couple are contested -- which means that AFCCA can't reject them on the basis of conflicting affidavits. And how "extreme temperatures, harassment by a security guard, and being transported in prison garb" can be dismissed as "speculative or conclusory" is simply beyond me. For example, AFCCA's original opinion tells us that Melson claimed that the temperature in the county jail exceeded 100 degrees in the summer and was extremely cold in the winter due to "terribly poor" heating units, broken windows, inadequate clothing, and denial of underwear. How is that claim either "speculative or conclusory"? The original panel opinion also says Melson indicated that he wasn't allowed to change out of prison garb when he went to the Air Force base for legal appointments. Again, how is that claim either "speculative or conclusory"?

Ah, here's something that is conclusory. AFCCA concludes: "Returning to the Strickland test for ineffective assistance of counsel, we find the appellant has failed to meet his burden and the trial defense counsel was not ineffective. Assuming trial defense counsels' [sic] conduct was deficient, we find no prejudice." Id., slip op. at 7. Why? I have no idea.

The Melson case has already been scrutinized by military appellate courts three times. Here's hoping for a fourth.

Follow up on today's published AFCCA Rose opinion

I know some of you don't routinely read the comments; this post is for you. In a follow up to the post on AFCCA's Rose opinion, below, Sir Cloudesley (as usual) provided a useful perspective, which I cut and am now pasting here:

The sample pretrial agreement in the Navy JAG Manual is two pages long. PTAs in the real world are already 6-10 pages.

They are about to get longer. Any SJA or trial counsel that fails to foreclose these appellate issues with a well-crafted PTA is not doing his job.

Every PTA should have boilerplate paragraphs putting the accused on notice of collateral consequences, a complete laundry list, with the accused acknowledging that the law can change at any time. The accused should be required to affirmatively acknowledge that he has been put on notice of all possible collateral consequences, known and unknown, and that the accused bears the risk of being subject to an undiscovered or unperceived collateral consequence, and also places upon the accused the affirmative duty to research all possible collateral consequences, and require him to affirmatively state his is satisfied with his attorney's advice with regard to collateral consequences.

SJAs should not rely upon the diligence of defense counsel. If a guilty plea gets flipped, its the gov't that deals with the consequences, not the defense atty.

I can think of several collateral consequences that the PTA should put the accused on notice of, regardless: deportation, voting, weapons possession, sex offender registration, limitations on foreign travel (either through loss or inability to get a passport or through prohibitions by the foreign country), property forfeiture, inability to get a student loan, loss of military and veteran's benefits, inability to get a professional license (depending on the state licensing scheme), inability to hold public office, mandatory DNA testing, impairment of ability to get employment (public and private), inability to qualify to adopt a child, loss of child custody in a divorce, termination of parental rights, inability to qualify for public housing, loss of drivers license. I'm sure others could think of more categories.

If not in the PTA, then SJA's and trial counsel should require that the laundry list of collateral consequences be listed on a separate document, signed by the accused and counsel, and admitted into evidence at the guilty plea hearing in order to insulate against appellate attacks on the guilty plea based upon lack of knowledge of guilty pleas or "affirmative misrepresentation." Or demand that the military judge address the issue on the record. Haven't looked at the Benchbook lately; has a colloquy regarding collateral consequences been inserted into the Benchbook?
(BTW, and I kid you not, Sir Cloudesley has his own Facebook page; I know, because I'm a "Facebook friend" of the dearly departed admiral's.)

The Court-Martial Trial Practice blog also has a post about Rose's implications here.

Published AFCCA opinion grants relief due to counsel's failure to accurately answer accused's questions about sex offender registration

AFCCA today issued a published opinion setting aside findings of guilty to indecent assault due to the civilian and military defense counsel's failure to provide accurate advice when their client asked about whether pleading guilty to indecent assault would require him to register as a sex offender. United States v. Rose, __ M.J. ___, No. ACM 36508 (A.F. Ct. Crim. App. Feb. 12, 2009). I've posted the opinion here. Senior Judge Francis wrote for himself and Senior Judge Heimann. Judge Thompson dissented.

Military/Uniformed Lawyer Glasnost

For those that might have seen in the past 8 years a period of conflict between civilian DoD (and Executive Branch) lawyers and uniformed lawyers, see e.g. comments from various folks here and here, I think Tuesday's memo from new DoD General Counsel Jeh Charles Johnson should begin a period of glasnost. Summary - I respect the uniformed lawyers and hope to work together with you. Memo here, h/t to Navy OJAG, Code 08 for posting.

Wednesday, February 11, 2009

Another U.S. deserter resists deportation from Canada

We've previously discussed the interesting legal dispute over the deportation of U.S. military deserters from Canada. (See here, here, and here.) As this A.P. report discusses, another such case was litigated in Canada's Federal Court yesterday.

NMCCA oral argument online

NMCCA heard oral argument this afternoon in United States v. Craig, No. NMCCA 200800716, and the audio is already available online here.

Tuesday, February 10, 2009

Audio of today's CAAF oral arguments online

Here's a link to the audio for United States v. Riddle, No. 08-0739/AR, and here's a link to the oral argument in United States v. Ranney, No. 08-0596/AF.

Monday, February 09, 2009

CAAF posts audio of last week's Project Outreach arguments

CAAF has posted audio of last week's oral arguments. Audio from the Delarosa argument, No. 08-0390/NA, is available here. Audio from the Chatfield argument, No. 08-0615/NA, is available here.

Slate's discussion of United States v. Denedo

An alert reader calls our attention to this piece from Slate, written by Slate senior editor Emily Bazelon and Yale Law Professor Judith Resnik.

The piece's subhead encapsulates its point: "The top 10 cases the Obama Justice Department should redo." The article's thesis is that "[t]he overarching Bush effort that Obama's lawyers should reject is the pervasive, insistent attempt to keep people out of the courts." It offers 10 cases in which to reverse that approach. And there at #3 is United States v. Denedo (though, unfortunately the piece refers to CAAF by its previous name—the one Congress changed in 1994). The authors conclude, "This case seems small, but it's another one that raises the important question of access—which the Court of Military Appeals got right. The new DoJ should ask the Supreme Court not to hear the case after all, so that a hearing into the facts surrounding Denedo's guilty plea can proceed in the place it should—the military courts."

MEJA motions

We've previously discussed the potential jurisdictional hurdles to a successful MEJA prosecution of the Blackwater contractors accused of shootings that resulted in 17 Iraqi civilian deaths. See here and here.

Here, via the War Profiteers web site, are the filings on those jurisdictional issue in the case of United States v Slough, et al. Defense, Government, Defense Reply.

TWIMJ addition

Today NMCCA's web site added a notice of an oral argument on Wednesday. At 1400, the court will hear oral argument in United States v. Craig, No. NMCCA 200800716. The issues are:


NMCCA directed counsel to be prepared to discuss how Issue I is affected by United States v. Kuemmerle, 67 M.J. 141 (C.A.A.F. 2009).

I look forward to seeing whether the argument is posted online and, if so, listening to it while enjoying a refreshing beverage.

Military justice glasnost trend continues

We've noted several recent developments making information about the military justice system more widely available. And today we noticed a welcome addition to ACCA's web homepage. The page now includes links for summary dispositions arranged both by name and by date. This should make it considerably easier to research case histories. Thanks, ACCA!

Denedo Respondent's Merits Brief Filed

As promised in TWIMJ, here is a link to the Denedo merits brief at SCOTUS. More analysis tonight.

Sunday, February 08, 2009

This week in military justice -- 8 February 2009 edition

This week at the Supreme Court: If I calculate correctly, the respondent's merits brief is due tomorrow in United States v. Denedo, No. 08-267. As soon as we can get a copy, we'll post it on

This week at CAAF: CAAF will hear two oral arguments on Tuesday. The first is in United States v. Riddle, No. 08-0739/AR. The issue in Riddle is "WHETHER APPELLANT'S PLEAS TO ALL CHARGES AND SPECIFICATIONS WERE IMPROVIDENT BECAUSE THE MILITARY JUDGE DID NOT EXPLAIN OR DISCUSS THE DEFENSE OF LACK OF MENTAL RESPONSIBILITY, DID NOT SATISFY HIMSELF THAT COUNSEL HAD EVALUATED THE VIABILITY OF THE DEFENSE, AND DID NOT ELICIT FACTS FROM APPELLANT THAT NEGATED THE DEFENSE." I notice that counsel for the Appellant is listed as William M. Fischbach, III, Esq. I assume this is the same person as MAJ Fischbach. Did he recently leave the Army? If so, where is he now?

The second case to be argued on Tuesday is in United States v. Ranney, No. 08-0596/AF. The issues in Ranney are:



Appellate relief data

Earlier this week, I gave a presentation to Air Force defense counsel assigned in CONUS. For the presentation, I looked at every decision issued by the Air Force Court in calendar year 2007 to discern the relief rate in cases decided by that court. The data that this exercise produced weren't always easily categorized. In some instances, it's obvoius that the relief is meaningful. In others, it's obvious that it isn't. But in a number of case, it's hard to tell whether the modification to the approved sentence actually resulted in meaningful relief. For example, does setting aside confinement that has already been served actually result in a benefit to the accused? I'm sceptical, but it's possible that DFAS actually gave some or all of those accused some extra pay as a result of that action. In any given case, does a reduction in forfeitures actually put money in the accused's pocket, or would the accused have suffered the same monetary loss due to automatic forfeituers? Conducting a case-by-case analysis to answer those questions was beyond the scope of this project, but would be a worthwhile topic for future study.

During calendar year 2007, AFCCA issued opinions in 506 Article 66 appeal cases. (In other words, my data universe excludes petitions for extraordinary relief and Article 62 appeals.) Most, but not all, of those decisions are on the court's web site. I was able to look at all the decisions, including those that weren't on the web site.

In those 506 decisions, AFCCA granted some form of relief in 93 cases (18%).

In 32 of the 93 cases in which AFCCA granted relief, the relief was limited to ordering a corrected court-martial promulgating order or a corrected (as opposed to new) convening authority's action.

In another 14 of the 93 cases, the relief consisted of AFCCA ordering a new convening authority's action.

In 7 of the 93 cases, the relief consisted of setting aside confinement that had already been served.

In 13 of the 93 cases, the relief consisted of setting aside a finding of guilty to a specification or affirming a finding of guilty to an LIO or excepting language from a finding of guilty to a specification while affirming the sentence as approved below.

In one case, the relief consisted of setting aside contingent confinement that had already expired. United States v. Rausch, No. ACM 36784 (Feb. 28, 2007).

In one case, the relief consisted of setting aside a reprimand while leaving the adjudged and approved bad-conduct discharge undisturbed. United States v. Collette, No. ACM S31176 (A.F. Ct. Crim. App. Jan. 26, 2007).

In one case, the relief was a new 706 board. United States v. Mackie, 65 M.J. 762 (A.F. Ct. Crim. App. 2007), aff'd, 66 M.J. 198 (C.A.A.F. 2008).

In 11 cases, AFCCA set aside or reduced forfeitures (though in one case, the total amount of reduced forfeitures was less than $9, United States v. Easterling, No. ACM S31042 (A.F. Ct. Crim. App. Feb. 16, 2007)).

In one case, the relief consisted of reducing a DD to a BCD on sentence appropriateness grounds, which could potentially have a significant effect on the VA benefits that the accused will receive. United States v. Daugherty, No. ACM 36542 (A.F. Ct. Crim. App. July 215, 2007).

In four cases, AFCCA disapproved BCDs.

In six cases, AFCCA reduced unserved confinement, thus resulting in the accused's release from confinement sooner. In one of those cases, confinement was reduced by three days on a two-year sentence. United States v. Thompson, No. ACM 36943 (A.F. Ct. Crim. App. Sept. 24, 2007). Still, as the Supremes observed in a military justice case, "While it is true that Captain Noyd has only two days yet to serve on his sentence, he should not be required to surrender his freedom for even this short time unless it is found that the law so requires." Noyd v. Bond, 395 U.S. 683, 699 (1969). Or, to use ex-Governor Rod Blagojevich's immortal phrase, even a three-day reduction in confinement "is a [expletive deleted]ing valuable thing."

AFCCA set aside all findings and the sentence in two cases. In one, the court set aside all findings and the sentence while authorizing a rehearing due to the military judge's erroneous denial of a defense challenge for cause. United States v. Bryant, 65 M.J. 746 (A.F. Ct. Crim. App. 2007). In the other, AFCCA set aside a 10-year-old conviction and the sentence and dismissed the charges because the government lost the record of trial and couldn't reconstruct it. United States v. Castilleja, No. ACM 36975 (A.F. Ct. Crim. App. Nov. 21, 2007).

So in 2007, AFCCA set aside all findings and the sentence in less than one-half of one percent of the cases it reviewed.

The court granted some form of meaningful relief more often than I would have guessed before starting the project. Wherever one draws the "meaningful relief" line (and the way I draw it results in about a 4.7% meaingful relief rate), the rate of meaningful relief was higher than the less-than-three-percent relief rate that Major Lippert found in a survey of three of the CCAs' handling of special court-martial cases over a five-year period. See Major Jeffrey D. Lippert, Automatic Appeal Under UCMJ Article 66: Time for a Change, 182 MIL. L. REV. 1, 17 (2004).

Saturday, February 07, 2009

USMC Capital Case Ex Writ

Here is a link to our hosted version of the ex writ filed in the Navy-Marine Corps Court of Criminal Appeals by counsel for former Sgt. Jessie Quintanilla, whose re-sentencing after reversal of his death sentence continues at Camp Pendleton. The Ex Writ is based on the military judge's refusal, see orders here and here, to consider LWOP a permissible sentence for Quintanilla or allow a PTA provision that includes waiver of the right to request clemency and parole board review of his sentence. An interesting part of the ex writ is that while the military judge refused to allow LWOP as a punishment or waiver of NMCPB, the ex writ makes these observations:

Furthermore, on information and belief, Petitioner believes the Convening Authority will accept a pretrial agreement that provides for a non-capital sentencing hearing, conditioned upon a presentencing determination that Petitioner’s agreement to waive his right to request clemency or parole is legally permissible. . . .

Furthermore, on information and belief, Petitioner believes the Convening Authority will accept a pretrial agreement that provides for a non-capital sentencing hearing, conditioned upon a presentencing determination that Petitioner’s agreement to waive his right to request clemency or parole is legally permissible.

The ex writ does its best to distinguish United States v. Tate, 64 M.J. 269 (C.A.A.F. 2007), which had a similar, though not identical, waiver of NMCPB rights. On the LWOP issue the tide is a bit against Quintanilla, Ronghi and Thomas, but there is no case law directly on point as to whether LWOP applies retroactively (for a defendnat specifically asking for it to be applied retroactively).

Disclaimer: Almost everyone on this blog (OK, 3 of us) was a Quintanilla appellate defense counsel (or in the case of a commenter, trial counsel).

Friday, February 06, 2009

Army Trial Judiciary docket website

While we're throwing around kudos for openess, here's a link to the Army Trial Judiciary's online docket site.

Exciting news! Coast Guard posts trial and appellate dockets online

The Coast Guard has now adopted the practice of posting both its trial-level docket and its appellate oral argument schedule online. The documents are available in Excel spreadsheet format here. BZ USCG! (Hey, that rhymes.)

We previously noted that the Judge Advocate General of the Coast Guard, Rear Admiral William D. Baumgartner, "has agreed to post all Coast Guard court martial dockets online in early 2009." And so he has, with a CGCCA oral argument schedule lagniappe.

The move comes in the wake of the apparently influential Reporters Committee for Freedom of the Press's report on court-martial dockets, which we discussed here.

CGCCA's online opinions updated

The Court-Martial Trial Practice blog notes that the Coast Guard Court's web site has now been updated to include the court's 2009 opinions. (Our best guess is that the court was waiting for the Chinese New Year to start posting 2009 opinions. BTW, we are now in the Year of the Ox.)

We previously noted CGCCA's Jonsson opinion--an extremely interesting decision setting aside an adultery conviction. We now know that it will be published.

The Coast Guard Court's updated web site also posts a new authored opinion issued on 5 February 2009. United States v. Kasprzyk, Dkt. No. 1287 (C.G. Ct. Crim. App. Feb. 5, 2009). The opinion doesn't make it apparent whether it will be published. The case involves fairly uncontroversial discussions of the law governing conspiracy (there need not be an express agreement) and sentence comparisons. The opinion then delivers another blow to the head of the Swiderski zombie.

Judge issues show cause order in civilian contractor case

Greetings from the Saturn of Glen Burnie Service Department. (I know what you're thinking: Charleston one day, Glen Burnie the next; is there no end to the excitement? No, no there's not.)

Yesterday Judge Emmet G. Sullivan of the United States District Court for the District of Columbia issued this show cause order in Adolph v. Gates, Civ. No. 09-135, a habeas action on behalf of a civilian confined in Kuwait with a view to court-martial proceedings. The United States' filing is due 10 days after DOJ is served with Judge Sullivan's order.

We previously discussed the habeas filing here. The petition itself is available here.

Thursday, February 05, 2009

Hear ye, Hear ye -- and BZ to AFCCA

This morning I attended the AFCCA Project Outreach argument in Charleston, South Carolina, where it was a balmy 30 degrees. After the argument, the court held a question and answer session during which Chief Judge Wise revealed that AFCCA will soon be recording its oral arguments and making the audio available on the Internet. He estimated that the system would be up and running in three weeks. BZ, AFCCA!

We've previously noted that NMCCA has begun the practice of recording its oral arguments and making them available on the web. We've also previously noted that the Coast Guard Court records its argument, but doesn't make the tapes available to anyone but the court's personnel. (I opined that the Coast Guard Court would have to disgorge the recordings if it received a FOIA request seeking them -- did anyone ever try that to see what would happen? One hopes that NMCCA's and AFCCA's examples will lead CGCCA to make its argument tapes publicly available rather than hoarding them for internal use only.) As we all know, for years CAAF has recorded its arguments and made them publicly available on the Internet. And the Supremes record their arguments and make them publicly available at the end of each term.

Once AFCCA's new practice kicks in, that would appear to leave just one court in the entire military justice appellate chain that doesn't record its arguments: ACCA. What are the prospects for ACCA following its sister courts? Army Lurker?

A thought about CAAF's docket

We've previously commented about CAAF's anorexic docket this term. (See, e.g., here.) If I compute correctly, CAAF's current number of 2009 Term decisions of the court (16) plus argued-but-yet-to-be-announced cases (13) plus scheduled-but-yet-to-be-argued cases (6) plus granted-but-not-yet-scheduled cases (7) equals 42.

Today it occurred to me to wonder what the realistic cutoff date is for a case to be granted, argued, and decided this term. The final oral argument sittings of the term are scheduled for 5 and 6 May. Assuming that, realistically, a reply brief would have to be filed no later than Friday, 1 May for a case to be heard on one of those dates, then a case would have to be granted no later than Wednesday, 18 February to be briefed under the normal briefing schedule and ready for oral argument this term. (If a case were granted on Thursday, 19 February, the normal briefing schedule wouldn't run until Monday, 4 May -- just one or two days before the final scheduled sittings of the term.)

CAAF could add oral argument dates later in May to expand this term's docket somewhat. But absent such a change, the total number of opinions of the court this term is likely to be limited to 42 plus the number of cases granted or certified in the 14 days extending from today through 18 February.

Another Civilian Habeas Corpus Petition

Here is a link to the habeas corpus petition of a civilian contractor, David Breda, filed as a result of confinement on UCMJ charges. According to the petition, the format and language of which seem vaguely familiar, Breda is in confinement at Al Asad Air Base, Iraq. Breda, a "full-fledged U.S. civilian," again that phrase seems vaguely familiar, is being held in pretrial restriction in lieu of arrest pending charges.

Wednesday, February 04, 2009

Another CGCCA opinion

We've had another Coastie friend throw another CGCCA opinion over our electronic transom. Here's a link. United States v. Hupp, Dkt. No. 1284 (C.G. Ct. Crim. App. Jan. 26, 2009). Once again, I have insufficient information to know whether it's published.

Tuesday, February 03, 2009

AP reports that then-Deputy Defense Secretary England opined that Blackwater contractors weren't subject to MEJA

Via the WaPo web site, here's an AP piece reporting that "Deputy Secretary of Defense Gordon England wrote [in late 2007] to Rep. David E. Price (D-N.C.) that the [Blackwater] contractors 'were not engaged in employment in support of the DoD mission' and that therefore federal prosecutors lack jurisdiction to charge the Blackwater guards." The AP also reports that a Pentagon spokesperson said yesterday "that England's view remains that of the department."

Text of Senate Bill 357, the Equal Justice for United States Military Personnel Act of 2009, now available

The text of Sen. Dianne Feinstein's Equal Justice for United States Military Personnel Act of 2009 is now available here.

More info on parking the ACCA in Harvard Yard

At 1654, the Court-Martial Trial Practice blog observed, "The Commissioner for the Panel advises that the case is United States v. Rosas (NFI). Apparently the website is to be updated very soon." And now it has been.

ACCA's web site's hearing calendar now includes the following:

US v. Rosas

Goodson 20060075 2 1700, Thu., 5 Feb 2009

(Hearing at Harvard Law School)

The web site also includes this summary of the case:
United States v. ROSAS (ARMY 20060075), 5 February 2009 at 1700HRS
Ames Courtroom, Harvard Law School.

A general court-martial composed of a military judge alone convicted appellant, contrary to his pleas, of conspiracy to import, introduce, and/or distribute cocaine; three specifications (counts) of wrongful importation, introduction, and/or distribution of cocaine in the United States; seven specifications of wrongful distribution of cocaine; six specifications of wrongful transportation of currency (money laundering); wrongful transportation of firearm; and wrongful use, carrying, and/or possession of a firearm in furtherance of a drug trafficking crime, in violation of Articles 81, 112a, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 881, 912a and 934 [hereinafter UCMJ]. The convening authority reduced the adjudged sentence to confinement from twenty-three years to twenty-two years and approved the remainder of the adjudged sentence to a dishonorable discharge, forfeiture of all pay and allowances, and reduction to Private E1.

Appellate defense counsel raised eight assignments of error for the court’s consideration. At argument, counsel will address Assignments of Error III-V (lack of corroboration of appellant’s confessions); Assignment of Error VI (lack of factual and legal sufficiency); and Assignment of Error VII (the military judge impermissibly imposed a maximum possible punishment as a minimum sentence for an assimilated firearms offense).
The web site doesn't provide any guidance as to members of the public (including members of the military) without a Harvard i.d. would be admitted to the argument.

Judge Maggs is a Harvard Law alumnus. I don't know about the other two judges on the panel.

CAAF posts Judicial Conference schedule & a CAAFlog contest

CAAF has posted its Judicial Conference schedule. Here's a link. But three of the blocks on the first day remain either unfilled or veiled (in a couple of instances, it isn't clear which).

Here's the CAAFlog contest:

The first person to correctly guess the identities of Senior Administration Official No. 1 and Senior Administration Official No. 2 wins a CAAFlog t-shirt. Please post your entries below.

Upcoming ACCA argument

Greetings from DCA, where I've been stuck for hours and where I'll be cooling my heels for at least another hour.

Thanks to the Anon commentator who noted that Harvard Law School's web site now includes an announcement of the ACCA argument on Thursday. You can navigate to the announcement through this link.

Here's what the HLS web site says:

NSLA: Army Court of Criminal Appeals Hearing

When Thursday, February 5, 2009, 5 – 7pm
Where Ames Court Room
Event type Lectures
Sponsor National Security and Law Association
Intended Audience All
Note Come hear arguments over the appeal of a soldier's conviction for the smuggling of narcotics and firearms and money laundering. Harvard ID required.
Can it really be that ACCA is holding an oral argument that the general public isn't permitted to attend? If an Airman stationed at Hanscom Air Force Base or an NJS instructor stationed at NETC drove to the argument and presented a military i.d., would he or she be turned away?

ACCA's web site's oral argument hearing calendar still doesn't reflect the argument.

Monday, February 02, 2009

New CGCCA opinion

Here's a new Coast Guard Court opinion that one of our Coastie friends was kind enough to throw over our electronic transom. United States v. Jonsson, Dkt. no. 1285 (C.G. Ct. Crim. App. Jan. 30, 2009). Sorry, but I have insufficient information to tell whether it will be published.

Judge Cox solicits attributed input for Cox Commission II

I know not everyone reads the comments, so I wanted to call your attention to this comment that was posted under our entry about the Cox Commission:

The UCMJ Commission for 2009 welcomes suggestions and ideas for improving the military justice system from all sources. If you have an idea or suggestion, it adds credibility for the person making the suggestion to take responsibility for having made it and to submit any documents, articles, or research that supports the basis for the suggestion or idea. Please submit your comments, ideas or suggestions to us at:

Walter T. Cox III

Park the ACCA in Harvard Yard

My understanding is that ACCA is going to hear an argument on Thursday at Harvard, but I can't find verification of that on either ACCA's or Harvard's web sites. Can anyone provide the 411? Army Lurker?

Happy Groundhog Day

First off, to current and former Code 45ers, happy Groundhog Day! (Groundhog Day is the quasi-official holiday of Navy-Marine Corps Appellate Defense. Why? Because every day is the same.)

I'll have a few updates tonight but I'm under the gun this week, so they'll be quick hits -- probably quicker than they deserve.

No Man's Version of Mythbusters: Dolly Sods Trees -- Fact

I can confirm, like the crew on Discovery Channel's Mythbusters, that trees in Dolly Sods with limbs on only one side are FACT. Driving back from Showshoe Mountain, WV, you pass by Dolly Sods (there is even a road sign for it) on Rt. 28. As I was driving, what to my wondering eyes would appear along the side of the road, but trees with limbs on only one side.

Now, I can't say if I was physically in Dolly Sods (though from the website description, here, I suspect not), but I can say this, there were trees with limbs on both sides, in addition to trees with limbs on only one. Thus, unfortunately for CAAFlog, there are probably more trees at Dolly Sods with branches on both their west and east sides than there have been military cert grants. Sorry.

An interesting note, which becomes apparent when you drive Rt. 28 and see signs for military museums and old arsenals, as the website points out, "In 1943, in a cooperative agreement with the army, the "[Dolly Sods Wilderness area] was used as a practice artillery and mortar range and maneuver area before troops were sent to Europe to fight in World War II. " Thus, the area holds a special place in the hearts of the military, but probably not so much in the hearts of hikers, as the below notice from the Dolly Sods website demonstrates:
Special Notice: Many of the artillery and mortar shells shot into the area for practice still exist here. In 1997, a highly trained crew surveyed the trail locations and known campsites for shells. They found 15, some of which were still live. All were exploded on site. Many more may still exist and are dangerous. Since it is impossible to survey every acre of the wilderness, we ask that you follow the recommendations below for your own safety. . . . If you find an artillery shell, often called a bomb, DO NOT pick it up. . . .

Sunday, February 01, 2009

This week in military justice -- Super Bowl XLIII edition

This week at the Supreme Court: We are unaware of any anticipated military justice developments at SCOTUS this week. The respondent's merits brief in Denedo will be due next week.


On Thursday, CAAF will hear oral argument in United States v. Chatfield, No. 08-0615/NA, at Texas Tech's law school in Lubbock. The granted issues in Chatfield are:


This week at the CCAs: AFCCA will hold oral argument on Thursday in a Project Outreach sitting at an Air Force trial advocate conference in Charleston, S.C. The issue to be heard in United States v. Anderson, No. ACM 37157, is "WHETHER APPELLANT'S SENTENCE THAT INCLUDES 15 YEARS CONFINEMENT IS INAPPROPRIATELY SEVERE IN LIGHT OF THE DISPARATE SENTENCE IMPOSED ON HIS CO-ACTOR, HIS CONTRITION AND HIS ACCEPTANCE OF RESPONSIBILITY."