Thursday, April 30, 2009
WHETHER THE MILITARY JUDGE ERRED BY FAILING TO INSTRUCT ON OBEDIENCE TO LAWFUL ORDERS AS IT PERTAINED TO MALTREATMENT BY HAVING A MILITARY WORKING DOG (MWD) BARK AT A DETAINEE WHEN THERE WAS NO EVIDENCE BEFORE THE MILITARY JUDGE THAT SUCH AN ORDER WAS ILLEGAL.
WHETHER THE MILITARY JUDGE ERRED WHEN HE DID NOT INSTRUCT THE PANEL ON OBEDIENCE TO ORDERS (LAWFUL OR UNLAWFUL) AS IT PERTAINED TO MALTREATMENT BY HAVING A MWD BARK AT JUVENILE DETAINEES.
WHETHER THE EVIDENCE FOR ALL MALTREATMENT SPECIFICATIONS WAS LEGALLY INSUFFICIENT, BECAUSE THE DETAINEES WERE NOT "SUBJECT TO [APPELLANT'S] ORDERS" AND DID NOT HAVE A "DUTY TO OBEY."
Wednesday, April 29, 2009
In 1990, Congress defined that language in a way that limited the discretion of the President in picking nominees for CMA vacancies. In a section of the National Defense Authorization Act for Fiscal Year 1991 titled "CLARIFICATION OF CERTAIN PROVISIONS IN UNIFORM CODE OF MILITARY JUSTICE," Congress provided: "For purposes of appointment of judges to the court, a person retired from the armed forces after 20 or more years of active service (whether or not such person is on the retired list) shall not be considered to be in civilian life." 104 Stat. 1565, 1565.
Now I don't know who actually proposed adding that provision to the UCMJ or why. But I can tell you a common belief about the provision's origins. According to military justice lore, the Secretary of Transportation was supporting Joe Baum, who was then the civilian chief judge of the Coast Guard Court of Military Review, for an upcoming vacancy on the Court of Military Appeals and someone in Congress inserted this language into the UCMJ to torpedo his potential nomination. Again, I have no idea whether that's actually true, but that understanding is so widespread that Article 142(b)(4) is typically called the Baum Amendment.
Article 142(b)(4) serves as an ill-advised limitation on the President's discretion. Note that the amendment doesn't preclude the President from nominating a retired -- or even drilling -- reservist to the court, as Presidents have done since the amendment was enacted. But it does preclude the President from exercising his discretion to nominate a distinguished retired active duty judge advocate for a CAAF judgeship.
One would think that a pretty good training ground to serve as a CAAF judge would be service on a Court of Criminal Appeals. Yet those who served on a CCA in an active duty capacity are now statutorily ineligible to serve on CAAF. (Judge Stucky, however, did serve on the Air Force Court as a reservist.) So, for example, the President can't exercise his discretion to nominate a jurist who distinguished himself as an active duty CCA judge and then retired and went into civilian practice -- like our very own Judge Mathews the Greatest. Nor could the President exercise his discretion to nominate a career military lawyer who retired and then distinguished himself on another federal bench, like Judge Wayne Alley (Brigadier General, U.S. Army, Retired) of the U.S. District Court for the Western District of Oklahoma or Judge William A. Moorman (Major General, U.S. Air Force, Retired) of the United States Court of Appeals for Veterans Claims.
To consider the case of the the man who inspired this post, why shouldn't a President have the discretion to decide that the best nominee for CAAF is a 30-year Navy veteran who served for six years on the Navy Court of Military Review before serving as a civilian for many years on the Coast Guard Court? In my view, he should. Congress should rescind Article 142(b)(4)'s unwise limitation on presidential discretion.
More significant (unless you happen to be Staff Sergeant Gardinier) is yesterday's decision in United States v. Gladue, __ M.J. ___, No. 08-0452/AF (C.A.A.F. Apr. 28, 2009). The most important lesson of Gladue is that a PTA term that waives all waivable motions will preclude appellate consideration of a multiplicity claim. CAAF split 3-2 over whether a multiplicity claim is waived by such a PTA term even if the military judge doesn't expressly advise the accused that he or she is waiving all multiplicity claims. Writing for the majority, Judge Stucky says it does. A PTA term that waives "any waivable motions waive[s] claims of multiplicity and unreasonable multiplication of charges and "extinguish[es]" an accused's "right to raise these issues on appeal." Id., slip op. at 9. Writing for himself and Chief Judge Effron, Judge Baker says that an appellate court shouldn't find that such claims are waived where the military judge didn't so advise the accused. But Judge Baker and Chief Judge Effron concur in the result, concluding that even if the multiplicity issue wasn't considered waived, it was a loser on appeal.
A copy of the Government's recon motion is available here. The No Man's discussion of that motion is available here. NMCCA's unpublished Chessani opinion is available here. Our discussion of that opinion is available here.
As the second Cox Commission gets set to hold a public hearing, it seems appropriate to reread Kevin's article, A Face Lift (and Much More) for an Aging Beauty: The Cox Commission Recommendation to Rejuvenate the Uniform Code of Military Justice, 2002 L. REV. M.S.U.-D.C.L. 57, which is available here.
Monday, April 27, 2009
We posted this comment about Chief Judge Baum, noting his long-standing service as a military appellate judge, upon learning of his retirement in 2007.
Sunday, April 26, 2009
Prosecutors in Green case move to prevent defense from arguing case should have been tried by court-martial
This week at CAAF: CAAF will hear four oral arguments this week. Tomorrow's first argument is in United States v. Nance, No. 09-0164/AF, where the granted issue is "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." Tomorrow's second argument is in United States v. Wilson, No. 09-0010/AR, where the granted issue is "WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED IN AFFIRMING APPELLANT'S CONVICTION FOR RAPE WHEN THE MILITARY JUDGE EXCEPTED 'ON DIVERS OCCASIONS' FROM THE SPECIFICATION AND DID NOT SPECIFY THE SINGLE OCCASION AS PART OF THE FINDING, BUT THE VICTIM ONLY TESTIFIED TO A SINGLE OCCURRENCE AND THE PARTIES ONLY ARGUED THIS SINGLE OCCASION TO THE MILITARY JUDGE." CAAF will hear two more arguments on Tuesday. The first is in United States v. Mazza, No. 09-0032/NA, where the granted issue is "WHETHER THE CIVILIAN DEFENSE COUNSEL WAS INEFFECTIVE BY: (1) SOLICITING HUMAN LIE DETECTOR TESTIMONY, (2) FAILING TO OBJECT TO ADMISSION OF THE VICTIM'S VIDEOTAPED INTERVIEW, AND (3) PERMITTING THE VIDEOTAPE TO BE VIEWED DURING DELIBERATIONS." The final CAAF argument of the week will be in United States v. Bush, No. 09-0119/MC, where the granted issues are: I. "WHETHER THE COURT OF CRIMINAL APPEALS' INTERPRETATION AND APPLICATION OF THIS COURT'S DECISION IN UNITED STATES v. ALLENDE, 66 M.J. 142 (C.A.A.F. 2008) PLACES IT AT ODDS WITH THIS COURT'S DECISION IN UNITED STATES v. GINN, 47 M.J. 236 (C.A.A.F. 1997)"; and II. "WHETHER THE COURT OF CRIMINAL APPEALS MISINTERPRETED ALLENDE, CREATING THE PRACTICAL RESULT OF SHIFTING TO AN APPELLANT THE BURDEN OF PROVING THAT A CONSTITUTIONAL ERROR WAS HARMFUL."
This week at the CCAs: On Wednesday, ACCA will hear oral argument in United States v. Lockhart, No. ARMY 20070689. Four assignments of error will be argued: "I. THE COURT-MARTIAL LACKED PERSONAL JURISDICTION OVER APPELLANT BECAUSE THE APPELLANT'S BREAK IN ACTIVE DUTY SERVICE TERMINATED JURISDICTION"; "IV. THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT WHEN SHE FAILED TO GIVE APPROPRIATE SENTENCE INSTRUCTIONS"; "V. THE EVIDENCE IS LEGALLY AND FACTUALLY INSUFFICIENT TO SUPPORT THE FINDING OF GUILTY TO FORGERY WHERE NO EVIDENCE SHOWS THAT THE LEASE, IF GENUINE, OPERATED TO THE LEGAL HARM OF ANOTHER, FURTHERMORE, THE LEASE DOCUMENT WAS OF NO LEGAL EFFICACY"; and "VI. THE MILITARY JUDGE ABUSED HER DISCRETION WHEN SHE ADMITTED APPELLANT'S FEDERAL INCOME TAX RETURNS INTO EVIDENCE OVER APPELLANT'S OBJECTION."
This week at the trial level: All eyes will be on Paducah, Kentucky this week, where the trial on the merits in the capital MEJA prosecution of former Army PFC Steven Green is set to start tomorrow.
Saturday, April 25, 2009
Colonel R. Peter Masterton, Court-Martial Jurisdiction Over Civilians in Contingency Operations: A New Twist, 35 N.E. J. on Crim. & Civ. Con. 65 (2009).
Article argues for enhanced criminal accountability of commanders whose subordinates commit war crimes
Dan E. Stigall, An Unnecessary Convenience: The Assertion of the Uniform Code of Military Justice ("UCMJ") over Civilians and the Implications of International Human Rights Law, 17 Cardozo J. Int'l & Comp. L. 59 (2009).
Friday, April 24, 2009
The court held that it was improper for the TC to argue, "His drug use alone and the impact that it has on our service and the unit of CUTTER SHERMAN as a law enforcement cutter deserves a bad conduct discharge." Because the drug use didn't produce an adverse impact on the cutter's law enforcement mission, the TC's argument "improperly links Appellant’s status as a boarding team member to his marijuana offense." But while the argument was improper, it was only a small part of the TC's argument and didn't constitute plain error, especially in this judge alone case.
Kevin succumbed to cancer. But given his refusal to allow cancer to stop him over the last 12 years, I'd say that he beat cancer rather than it beating him.
We've lost someone very special.
Thursday, April 23, 2009
I've now received a report that 1LT Behenna's counsel have filed a motion for a new trial with the military judge. Can anyone confirm that report or, even better, shoot us a copy of the motion? As always, you can reach us at email@example.com.
The Court does make a new exception for cases where the search is for evidence "relevant to the crime of arrest" that might be found in the vehicle. But the Court notes that arrests for traffic violations will not usually provide a reasonable basis to believe the vehicle contains relevant evidence (slip op. at 10).
LCDR Julia Crisfield pointed out to me the conflict with Mil. R. Evid. 314(g)(2)(A) which seems to allow for a search incident to arrest of an automobile even where the occupant is not within reaching distance of the interior of the vehicle.
Tuesday, April 21, 2009
MAJ Lowery writes, "There is nothing precluding a former servicemember whose case is final under Article 76 from petitioning a court of criminal appeals for extraordinary relief." In support, she offers this footnote: "Posting of Cloudseley Shovell to CAAFlog, https://www.blogger.com/comment.g?blogID=34853720&postID=1877241590194968336 (June 23, 2008, 14:00 EDT) (Denedo 'opens the doors of the CCAs to all manner of extremely stale claims, because now CCAs have continuing jurisdiction over all cases meeting the Art. 66(b) threshold, no matter how old, no matter how thoroughly reviewed, and no matter how final. All you need is an appellant who is still alive.')."
[Alas, the article misspells the good admiral's name.]
Credit has to go to the government for the brief. After spending a lot of time saying there should be no qualified news gatherer privilege in the miltiary, the brief in 5 and a half concise, Courier New 12 font pages, does a good job arguing that the military judge was wrong on the cumulativeness ruling. The brief rebuts Judge Meeks' conclusion that the outtakes were "not critical," "consistent with other evidence," and just "nice to have," by effectively arguing that they are important to the government and the best evidence of the accused's guilt. I particularly liked the comparison between the accused's 2-page sworn statement and 80 minutes of admission on pages 44-45.
More to follow. Hard to say if this will be another win for the G at NMCCA and loss at CAAF.
Monday, April 20, 2009
Our sharp readers will ignore the AP story's error in this sentence, "Former Pfc. [Green] is the first ex-soldier to be charged as a civilian under a 2000 law that allows U.S. authorities to prosecute former members of the military for crimes overseas." Oh well, I guess if the AUSAs get a murder conviction it will be a first.
Sunday, April 19, 2009
The article indicates that while the Army issued 511 waivers to enlist convicted felons in 2007, "adult major misconduct" waivers are no longer available.
As always, we'll be on the lookout for CAAF decisions, published CCA decisions, and CAAF grants. It's probably too early to send our Denedo lookout up to the CAAFlog crow's nest. According to these statistics from SCOTUSblog, the Supremes have decided or dismissed 12 fo the 14 cases heard during the October sitting, 10 of the 13 cases heard during the November sitting, 6 of the 12 cases heard during the December sitting, 5 of the 11 cases heard during the January sitting, 3 of the 12 cases heard during the February sitting, and none of the 6 cases (including Denedo) heard during the March sitting.
As always, if you're aware of any signficant upcoming military justice events -- including significant courts-martial -- please let us know. You can reach us at firstname.lastname@example.org.
Friday, April 17, 2009
Essentially the government motion says, yes, we did provide compelling evidence to rebut the improper flow down of UCI taint--which really isn't a basis for en banc reconsideration. Thus, Appellate Government also argues that because the investigating officer in the Haditha investigation (the source of the UCI taint) and the MARCENT SJA were relative equals in the command structure (though different ranks), that NMCCA has created a new breed of "lateral" taint in UCI cases.
Counsel for LtCol Chessani tells us, "the government doesn't know when it has lost." We'll see if he proves correct.
Thursday, April 16, 2009
The New York Times story has an interesting observation from James Culp, a former Army JA and currently involved in court-martial defense in private practice:
Military legal experts said the soldiers’ rank showed the frustration of fighting insurgents who blended in with the locals. “When the first sergeant of a company snaps, taking a sergeant first class and a senior medic with him, it’s a sign that they’ve just had too much,” said James D. Culp, a former Army trial lawyer.Thought that would be an apt sentencing strategy for MSgt Hatley.
Wednesday, April 15, 2009
Whether Petitioner's right to Due Process was violated when the trial judge permitted the triers-of-fact to consider evidence of a charged sexual assault, not offered under M.R.E. 413, as propensity evidence that Petitioner raped a different woman approximately four years later.
Today's CAAF daily journal online update included notice of a motion for enlargement of time for the Judge Advocate General of the Navy to file a certificate of review in the case. United States v. Neal, __ M.J. ___, No. 09-5004/NA (C.A.A.F. Apr. 14, 2009). The notice doesn't indicate whether Code 45 or Code 46 filed the enlargement request. Could someone in the know fill in that detail for us?
It's unusual but hardly unprecedented for a Judge Advocate General to certify to CAAF a case that the government won at the CCA level. One of the most famous military justice cases of all time -- United States v. Tempia, 16 C.M.A. 629, 37 C.M.R. 249 (1967) -- was certified to CMA by the Judge Advocate General of the Air Force after the government had prevailed before an Air Force Board of Review. A more recent example is United States v. Rodriguez, 60 M.J. 87 (C.A.A.F. 2004)--the infamous "Latin movie" case--which the Judge Advocate General of the Navy certified to CAAF after the government had prevailed before NMCCA.
There would seem to be a firm rationale for the Judge Advocate General of the Navy to certify this case, to expedite a final determination of the new Article 120's constitutionality. Of course, this case wouldn't resolve every constitutional challenge to Article 120, but more certainty is better than less certainty.
Call for Articles, Essays, and Book Reviews: National Security and Constitutional Law
Proposals due May 15, 2009
The editors of Pace Law Review invite proposals from scholars, researchers, practitioners, and professionals for contributions to a special issue on the relationship between national security and constitutional law to be published in Winter 2010.
Pace Law School is dedicated to advancing a greater understanding among scholars and the legal community concerning the role of constitutional law in national security concerns. This law review issue will promote an ongoing discourse on the balance between constitutional rights and effective national security.
Please submit proposals of no more than 500 words by attachment to email@example.com by May 15, 2009. All proposals should include the intended author’s name, title, institutional affiliation, contact information, and should concern issues related to the relationship between national security and constitutional law. Book review proposals should also include (a) the title and publication date of the book proposed for review; (b) a description of the importance of the book to the general topic; and (c) any other information relevant to the book or proposed review (e.g., the reviewer’s expertise or any relationship with the author). Authors are also welcome, but not required, to submit a CV. We expect to make publication offers by June 1. We encourage clear, concise, and accessible writing that will be of use to lawmakers, attorneys, and students.
Completed manuscripts of book reviews and essays will be due July 15, 2009. Completed manuscripts of scholarly articles will be due August 1, 2009.
Tuesday, April 14, 2009
Several people in the comment section wrote about whether CAAF could take up the slack if the four CCAs were eliminated. The answer is: Yes, easily.
During FY 2008, the four CCAs decided 2,515 cases. In FY 2007, they decided 3,423 cases.
Back in FY 1987, when CMA was still a three-member court, it had 3,336 docket terminations. See 26 M.J. CXVI. And in FY 1984, it terminated 4,036 cases. See 20 M.J. CXXXI. So it's apparent that CAAF could handle the current combined workload because in the past it has handled that case load.
Let's also do a bit of comparison shopping. In 2002 -- the most recent year for which I could quickly find statistics (have I mentioned I'm under the gun tonight?) -- the Fourth Circuit decided 5,356 cases. For most of that year, it had eleven judges. So CAAF has 45 percent of the judicial staffing that the 4th Circuit had. Guess what 45% of the Fourth Circuit's 2002 docket would be -- 2,435 cases, which is close to the cumulative number of cases decided by the four CCAs last year. So a five-member court could handle that level of cases, assuming it sat in three judge panels.
But in reality, the workload would be far less for CAAF than it was for the 4th Circuit. Here's something that every 4th Circuit case decided in 2002 had in common -- they all raised issues. There's no such thing as a merits submission to the 4th Circuit. Compare that to the military. Last year, 43.8% of all the cases decided by the Air Force Court were submitted on the merits. I'll bet the percentage is even higher for the Navy-Marine Corps Court. Even using that number across the four CCAs, CAAF would actually be called upon to decide only 1102 cases raising issues. It could summarily deny the rest without even cracking the ROT's cover.
But wait, there's more. No doubt some not insubstantial subset of the 56.2% of the CCA appeals with issues raised only a sentence inappropriateness claim. But CAAF doesn't have sentence appropriateness powers. If the CCAs were eliminated, sentence appropriateness would no longer be a judicial decision, but would instead be confined to CAs, discharge review and clemency and parole boards, and the President's exercise of his pardon power. So whatever percent of cases that now raise only a sentence appropriateness issue would now be no issue cases, further reducing CAAF's workload. And, of course, CAAF would no longer have to review petitions first and then rereview those cases in which it grants the petition. Rather, there would be one streamlined process that would no doubt result in summary affirmance for the great majority of cases and more searching analysis of more difficult cases, just as is now the case with the Article III courts of appeals. (Of course the factual sufficiency function would also disappear with the CCAs, but it's very rare to see a factual insufficiency claim raised that isn't accompanied by a legal sufficiency claim, so that's unlikely to change the percentage of briefed cases.)
While the legislative history of the bill that expanded CAAF's size to five judges indicated that Congress contemplated the court would sit en banc in every case, CAAF doesn't appear to actually be compelled to do so. In other words, even without a statutory change, CAAF could start sitting in panels while allowing for en banc review when appropriate -- such as to resolve splits between or among panels. If the CCAs were eliminated, CAAF should move to such a system.
So CAAF could manage its own workload simply by no longer reviewing no issue cases on its own and by moving to sit in panels.
CAAF is a highly professional court with superb resources, including an outstanding library staff, a court executive, an efficient clerk's office, a central legal staff, and a couple of in-chambers clerks and a couple of in-chambers secretaries for each judge. The court has the spare capacity to take on all of the CCAs' cases with no increase in funding.
What if, several years down the line, military justice caseloads drastically increase? That seems unlikely to happen. But if it were to happen, then we could throw money at the problem then. But the possibility of having to increase CAAF's size later (which, again, strikes me as a low-probability contingency) shouldn't lead us to waste millions of dollars annually now to preserve excess capacity. The federal government simply doesn't have the resources to do that anymore.
Finally, the issue of waivers of appellate review as a PTA term came up in the comments. As I demonstrate above, we could eliminate the CCAs and have CAAF provide appellate review for every case now reviewed by the CCAs without increasing CAAF's staffing. So it isn't necessary to allow for waiver of appellate review as a PTA term to accommodate the CCAs' elimination. That said, I favor allowing waiver of appellate review as a PTA term regardless of whether the CCAs are eliminated. And I favor eliminating the CCAs regardless of whether waiver of appellate review is allowed as a PTA term. Obviously my first choice would be a system in which waiver of appellate review is allowed as a PTA term and in which the CCAs are eliminated and all court-martial convictions can be appealed to the Court of Appeals for the Armed Forces.
CAAF issues decision distinguishing violation of a superior commissioned officer's order from violation of a lawful order
Former Pfc Steven Green MEJA trial in Kentucky. Ok, not exactly a court-martial--a point the defense is emphasizing. Very nice history of the case and preview here from the Louisville Courier-Journal. Green's case involves the alleged rape and murder of an Iraqi girl in Mahmoudiya, see prior coverage here.
Master Sgt John Hatley's continuing court-martial is covered by the AP here. Hatley is the last of the NCOs allegedly involved in the killing of four Iraqi detainees in 2007. See prior CAAFlog coverage here, 1st Sgt Mayo court-martial here and Sgt Leahy court-martial here.
Sgt Joseph Bozicevich's Art. 32 hearing for allegedly killing Staff Sgt Darris Dawson and Sgt Wesley Durbin after they planned to counsel Bozicevich for "losing a 40mm grenade for his M-203 grenade launcher, being disrespectful toward his squad leader Dawson, and for leaving behind one of his soldiers during a foot patrol." See full Army Times coverage here.
Monday, April 13, 2009
In these budgetary times -- when we are painfully sacrificing our military's teeth -- how can we justify the expense of maintaining five appellate courts that cling to the tip of the military's tail? Consider that at the moment, three of the five military appellate courts (ACCA, AFCCA, and CGCCA) are preparing to move . How many millions of dollars will be devoted to building new facilities for those three courts? How many millions of dollars are spent each year on the four CCAs' operating budgets? Could we find better uses for those millions of defense and homeland security dollars? Of course we can.
This is no time to maintain military entities simply because the wire diagram has included them for decades. I firmly believe that the Court of Appeals for the Armed Forces is capable of providing a one-level review of all military convictions -- just as the United States Court of Appeals for the Fourth Circuit is capable of providing a one-level review for every federal conviction in Maryland, Virginia, West Virginia, North Carolina, and South Carolina, as well as hearing appeals from federal civil cases in those states. Why should a servicemember get two levels of sub-SCOTUS appeals when a civilian gets only one? Is maintaining that two-layer review worth the millions of dollars in operating expenses and the many millions more in capital outlays that DOD and Homeland Security will have to pay in the next few years to move three of the CCAs? Also, a one-stop-shopping system -- in which CAAF would no longer itself hear cases in two stages -- would be far faster than the current system, thus saving still more money by reducing the time period servicemembers spend on appellate leave, with the resulting costs to the government (particularly for health care).
Finally, let's say I'm wrong. Let's say we really do need a two-layer appellate system. Then can't we at least consolidate the four CCAs into one CCA, thereby saving not only about two-thirds of the combined CCAs' operating costs, but also forgoing the need to build facilities for two of the three CCAs that are currently planning moves?
All of the money we would save by eliminating or combining the CCAs probably wouldn't buy one F-22 -- even if we added together all of the savings over 10 years. But I'll bet it would be enough to save some other valuable military program that contributes to DOD's war fighting capabilities.
If we are willing to sacrifice 60 of the "most capable fighter[s] in our military inventory" because they cost too much, it's time to give serious consideration to sacrificing a layer of redundancy in the military appellate process because, in these budgetary times, we can no longer afford such an extravagance.
Sunday, April 12, 2009
Now Professor Baldus and his colleagues have turned their attention to the military death penalty system. They have authored a remarkable article that will be published in the University of Michigan Journal of Law Reform. Catherine M. Grosso, David C. Baldus & George G. Woodworth, The Impact of Civilian Aggravating Circumstances on the Military Death Penalty: Another Chapter in the Resistance of the Armed Forces to the Civilianization of Military Justice, 1984-2005, __ U. Mich. J. L. Reform __ (forthcoming). The article is now available here on the Social Science Research Network. [Unfortunately SSRN is down for the weekend, but it's scheduled to be up tomorrow at 0700 EDT.]
The article analyzes an interesting evolution in the use of the current military death penalty system, which was created in 1984. While early application of the current military death penalty (1984-1990) appeared relatively indifferent to a murder's military nexus, over time the military death penalty has come to be reserved almost exclusively for murder offenses that bear a strong connection to military good order and discipline, rather than simply serving as a military alternative to a civilian capital prosecution. The article documents this evolution -- which I hadn't recognized before reading the article -- and explores its implications. The article also includes a data-rich series of appendices that will no doubt be extremely valuable to both counsel litigating capital cases and legal scholars.
This week at CAAF: CAAF will hear oral arguments in four cases this week. Tuesday's first argument will be in United States v. Matthews, No. 08-0613/AR, where the granted issue is "WHETHER THE UNITED STATES ARMY COURT OF CRIMINAL APPEALS ERRED IN HOLDING THAT MIL. R. EVID. 509 DOES NOT BAR THE GOVERNMENT FROM CALLING THE MILITARY JUDGE FROM A JUDGE-ALONE TRIAL TO TESTIFY AT A DuBAY HEARING AS TO HIS DELIBERATIVE PROCESS." Tuesday's second oral argument is in United States v. Marshall, No. 08-0779/AR, where the granted issue is "WHETHER THE MILITARY JUDGE'S FINDING BY EXCEPTIONS AND SUBSTITUTIONS CREATED A MATERIAL FATAL VARIANCE IN CHARGE III AND ITS SPECIFICATION [ESCAPE FROM CUSTODY]." Wednesday's first argument is United States v. Sanders, No. 09-0013/AF, where the granted issue is "WHETHER THE MILITARY JUDGE ERRED BY ADMITTING IRRELEVANT AND HIGHLY PREJUDICIAL EVIDENCE IN VIOLATION OF R.C.M. 1001 AND MIL. R. EVID. 403." And CAAF's final argument of the week is United States v. Wiechmann, No. 09-0082/MC, where the granted issue is "WHETHER APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO COUNSEL WHEN THE CONVENING AUTHORITY AND STAFF JUDGE ADVOCATE FAILED TO RECOGNIZE ONE OF HIS TWO DETAILED DEFENSE COUNSEL."
This week at the CCAs: It doesn't appear that any of the CCAs have oral arguments scheduled this week.
This week in CLE: On Tuesday at 1200, NIMJ will hold a program on openness of courts-martial at the American University's Washington School of Law.
Saturday, April 11, 2009
The charges against both, as well as their squad leader -- who was acquitted in a MEJA prosecution in U.S. district court last summer -- arise out of an incident during which the three allegedly shot and killed four unarmed detainees during the battle of Fallujah.
Friday, April 10, 2009
I. Whether the lower court erred by finding that the military judge abused his discretion when he denied the defense motion to disqualify trial counsel from further participation in the case.We previously discussed Bradley here.
II. Whether the lower court erred in setting aside the findings and sentence based upon speculation that the trial counsels' continued participation in the case could have prejudiced Appellee, without making any finding that their continued participation did materially prejudice Appellee, as required by Article 59(a), UCMJ.
Thursday, April 09, 2009
AFCCA holds an officer can be convicted for private, consensual sexual conduct even if it's protected by Lawrence and Marcum
AFCCA concluded that the private, consensual sexual relationship was protected under both Lawrence v. Texas, 539 U.S. 558 (2003), and United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004). But AFCCA nevertheless affirmed the conviction. Here's how the court framed the issue: "In a case of first impression, we must decide whether conduct that is permissible and survives scrutiny under Marcum can nonetheless be proscribed as conduct unbecoming an officer and a gentleman." Yes, held the court. "Private conduct may constitute an offense under Article 133, UCMJ, and there is no requirement that the conduct be otherwise criminal."
Turning to the facts of the case, the court reasoned:
[W]e conclude that the fact that conduct may fall within a recognized liberty interest under the Constitution does not mean that the conduct cannot be proscribed under Article 133, UCMJ. Such is true even if the infringement of the liberty interest would not pass constitutional scrutiny as a violation of another punitive article, e.g., Article 125, UCMJ. This is such a case. In the case sub judice, the appellant's act of performing fellatio on a Turkish national at a time when the appellant, an officer, was serving as a representative of the United States military abroad, and at a time when the appellant had been confronted about and knew rumors abounded on and off base about his alleged homosexual relationship with another Turkish national (Mr. MH), evinced, as the trier of fact found, a degree of indecorum that disgraced and dishonored the appellant and seriously compromised his standing as an officer. In the final analysis, Article 133, UCMJ, as applied to the appellant in this case, is constitutional.Harvey, No. ACM 36641, slip op. at 6 (footnote omitted).
As if that weren't significant enough, AFCCA then proceeded to announce another major holding. AFCCA was confronted with the question of whether the Marcum factors are questions of law to be determined by the military judge or questions of fact to be determined by the members after being instructed about them. They are the former, held AFCCA. The Marcum factors are legal "matters upon which only the military judge could rule." Id., slip op. at 7.
My guess is that this significant case will be further reviewed by CAAF. Major kudos (or, actually, lieutenant general kudos) go to the Judge Advocate General of the Air Force for certifying this subjurisdictional case to AFCCA. When CAAF either denies a petition for review in this case--thus allowing AFCCA's opinion to remain binding precedent in the Air Force--or grants the petition and establishes law for the entire military justice system, the law will be clearer than it was before. And that seems like a sound basis for a Judge Advocate General to exercise the Article 69(d) authority to refer a subjurisdictional case to a Court of Criminal Appeals. In fact, the system would likely benefit if there were more such referrals or, better yet, an accused were given a right to appeal a subjurisdictional case to a Court of Criminal Appeals.
H/T to the Moderator
Sgt. Jermaine Nelson is the last remaining defendant in this incident, we'll have to see how that plays out. Nelson won't have the benefit of being able to suppress the tape of Weemer admitting to some portion of the incident in an employment interview with the Secret Service. Rather, Nelson will have to face his own recorded statements, in which he reportedly said that
I don't know exactly what that tape says so I won't comment on the likely effect on referral or the trial.
[H]e watched Nazario become angry after finding assault rifles in the house, even though the detainees had insisted there were no weapons. On the tape, Nelson recalled Nazario shooting a kneeling captive at point-blank range, then saying: “I'm not doing all this by myself. You're doing one and Weemer is doing one.”
Weemer then pulled his 9mm sidearm and killed one of the detainees, Nelson said. “He shot him and the dude was on the ground and rolling and (Weemer) was shooting, shooting, shooting, shooting, shooting,” Nelson told the naval investigator. Afterward, Nelson said, he joined in and shot another detainee.
Also, remaining is the issue of prosecution of Nazario, Nelson, and Weemer for refusing to testify after being granted immunity.
Wednesday, April 08, 2009
I. Whether the Air Force Court of Criminal Appeals erred in denying the United States' request that the court order an affidavit from Appellee's original military defense counsel.AFCCA's opinion in the case is published at 67 M.J. 630. We discussed AFCCA's opinion here and here.
II. Whether an "impression" left by civilian defense counsel that Appellee may not have to register as a sex offender amounted to an affirmative misrepresentation and led to Appellee receiving ineffective assistance of counsel.
Masciola is quoted as saying he will appeal the decision, though my brief review of Commission rules says that Col. Parrish is right and only if an express conflict with the counsel's state bar licensing rules exist can the Commission CDC remove a defense counsel. See Rule 109(b)(3)(C). Otherwise, it appears Rules 109(b)(2) and 502(f) give the power to remove counsel from a case to the military judge. But that was based on a word search review so don't count that as authoritative.
Tuesday, April 07, 2009
[DISCLAIMER: I second-seated the oral argument for the defense.]
[LCDR] William C. Kuebler, who was appointed by the Pentagon to represent Omar Khadr, was reassigned on Friday after an internal inquiry into his conduct, said Michael Berrigan, the deputy chief defense counsel at the Navy base in Guantanamo.According to other reports,
[Commissions' Chief Defense Counsel Col. Peter Masciola,] ordered Kuebler's removal Friday in order to pursue "client-centred representation," according to a statement from his office. . . . "The team representing Omar Khadr had become dysfunctional," Masciola said. He said he could not elaborate because of privacy concerns and attorney-client privilege. A source who asked not to be named said yesterday Masciola had concluded that Kuebler was "a divisive figure on the military team and failed to act in best interests of Khadr."See Edmonton Sun report here. According to the story, "Kuebler insisted his reassignment was sparked by his criticism that [Col.] Masciola was too cosy with prosecutors." If anyone has any more information on the events or the rationale for the firing, please let us know in comments or via email.
BTW: (1) h/t to Anon for the story; and (2) for those military DCs out there that previously felt squeamish about going to the press about your case (though some deny there are any of you, see our discussion here), what say you about this move? Is this the exception that proves the rule that you can go to the press about your case or the case study that makes TDC reluctant to go to the press?
Monday, April 06, 2009
"Steven Dale Green, a former member of the 101st Airborne Division, was accused along with four fellow soldiers of raping a 14-year-old girl and killing her and her family in Mahmoudiya, Iraq . . . ." The other accused soldiers were tried by courts-martial. But because Green had already been discharged before a criminal investigation into the incident began, he is being tried under MEJA in U.S. district court.
Major Ku concludes that legislation providing for a permanent military judiciary is neither necessary nor desirable. She considers and rejects the proposal suggested by Professor Fred Lederer and then-LT Barbara Hundley in An Independent Military Judiciary--A Proposal to Amend the UCMJ, 3 Wm & Mary Bill of Rights J. 629 (1994). MAJ Ku argues that "current personnel practices indicate that military judges are unlikely to be influenced by their interests in future promotions and assignments." 199 Mil. L. Rev. at 62. To support this conclusion, she observes that "eligibility requirements preclude most Army Judge Advocates from applying for judgeships until late in their careers." Id. Additionally, "no concrete evidence supports a threat to military judges' independence, by TJAG or anyone else." Id. at 63.
She also rejects the notion that military judges should be removed from normal military personnel policies, arguing that "the status of military judges as commissioned officers in the armed forces is vital." Id. at 65. She makes an interesting argument that if military judges were cloistered away in judicial duties, Weiss might suggest that military judges' duties are no longer germane to being a military officer, thus possibly requiring a second appointment (which would have to be made by SECDEF or the President) to satisfy the Appointments Clause. Id. at 70 (citing Weiss v. United States, 510 U.S. 163 (1994)).
While rejecting major changes of the sort suggested by Professor Lederer, MAJ Ku points to several lesser changes that might be helpful in promoting the military judiciary's independence. She writes favorably of the Army's decision to grant military judges a fixed term of office by regulation. See id. at 71-74; see Army Regulation 27-10, Military Justice, ¶ 8-1.g (2002). This section of the article, however, appears to contain an error. MAJ Ku writes, "None of the other services currently provide for tenure or a fixed term of office for their judiciary." Id. at 73. But as the Air Force Court has observed, "the Coast Guard provides for 3-year assignments for military judges except when they are reassigned 'under the normal personnel assignment process based on the needs of the service.' Commandant Instruction M5810.1D, Military Justice Manual (17 Aug 2000), ¶ 6.E." United States v. Paulk, 66 M.J. 641, 642 n.2 (A.F. Ct. Crim. App.), petition denied, 67 M.J. 169 (C.A.A.F. 2008).
MAJ Ku also writes favorably about the Army's recently established judicial apprenticeship program. 199 Mil. L. Rev. at 74-77. She then offers the Navy JAG Corps' military justice litigation career track as a model to be emulated and discusses the Navy's judicial screening board and new position of Chief Judge of the Navy. Id. at at 78-83. She then discusses a proposal that the Code Committee is considering to expand military judges' contempt powers. Id. at 83-85. Finally, she sets out a possible career path for those who want to become Army military judges. Id. at 85-86.
Sunday, April 05, 2009
Airman First Class Von Bergen entered into a PTA, under which he waived his Article 32 investigation, and pleaded guilty to a 2252A child pornography offense (as well as another child pornography offense). CAAF reversed due to its conclusion in Martinelli that 2252A doesn't apply extraterritorially. United States v. Von Bergen, 62 M.J. 370 (C.A.A.F. 2005) (order). A1C Von Bergen was retried, but this time under Article 134 clauses (1) and (2), rather than (3). This time A1C Von Bergen pleaded not guilty and sought an Article 32 investigation. The military judge held that Von Bergen wasn't entitled to a 32 due to his earlier waiver. AFCCA affirmed.
Wrong, ruled CAAF. Judge Baker wrote for the majority. Judge Ryan concurred in the result.
"First and foremost," CAAF ruled, "Appellant's [original] plea was improvident as a matter of law, which had the effect of canceling the pretrial agreement according to its terms." Von Bergen, No. 03-0629/AF , slip op. at 9. Second, "the effect of the rehearing and Appellant’s subsequent withdrawal from the agreement was to place the parties in their pretrial status quo ante." Id., slip op. at 9-10. CAAF explained that it couldn't "uphold an offense under Article 134(1) or (2), UCMJ, which, as explained in United States v. Medina, 66 M.J. 21, 26 (C.A.A.F. 2008), do not necessarily constitute lesser included offenses of Article 134(3), UCMJ. As a result, Appellant’s plea was improvident." Id., slip op. at 10. The court continued, "Although improvidence of the plea upon appellate review was not an express basis for cancellation in the pretrial agreement, this Court's decision had the same effect as if the military judge had not accepted Appellant's plea, which was an express basis for cancellation." Id., slip op. at 10-11.
Additionally, CAAF explained, "when this Court set aside Appellant's plea and the amended specification was referred for rehearing, Appellant's subsequent withdrawal from the agreement meant that the court-martial process should have begun anew." Id., slip op. at 11. The court went on to conclude, however, that the failure to hold an Article 32 investigation before the second court-martial was harmless error. Id., slip op. at 13-14.
Judge Ryan wrote separately due to her stricter separation of Article 134 (3) offenses from Article 134 (1), and (2) offenses. She reasoned, "The specification at issue in this appeal was originally charged and pleaded to as a violation of clause 3 of Article 134, UCMJ. . . . On rehearing, the convening authority amended the original specification from alleging a violation of clause 3 of Article 134, UCMJ, to alleging a violation of clauses 1 or 2 of Article 134, UCMJ, and referred this new specification to a general court-martial." Because the Article 134(1) and (2) allegation at the second court-martial was a distinct offense from the Article 134(3) allegation at the original court-martial, "Appellant’s waiver of an Article 32, UCMJ, pretrial investigation pursuant to the PTA could not constitute a waiver for an offense the PTA did not address."
CAAF summarily disposes of case presenting disconnect between court-martial's actual findings and SJAR's & CMO's recitation of findings
WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED BY AFFIRMING A FINDING OF GUILTY OF COMMUNICATING INDECENT LANGUAGE WHERE THE STAFF JUDGE ADVOCATE'S RECOMMENDATION AND THE COURT-MARTIAL PROMULGATING ORDER STATED THE OFFENSE AS ATTEMPTED COMMUNICATION OF INDECENT LANGUAGE. SEE UNITED STATES v. DIAZ, 40 M.J. 335 (C.M.A. 1994).United States v. Thomas, 67 M.J. 187 (C.A.A.F. 2008).
Last Tuesday, CAAF summarily disposed of the case, reversing NMCCA's decision in relevant part and remanding the case to NMCCA for reassessment of the sentence. CAAF reasoned: "Under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866(c) (2000), the Court of Criminal Appeals may act only with respect to the findings as approved by the convening authority. Under these circumstances, we conclude that, in affirming a finding of guilty of communicating indecent language, the Court of Criminal Appeals exceeded its authority. See United States v. Diaz, 40 M.J. 335 (C.A.A.F. 1994)." United States v. Thomas, __ M.J. __, No. 08-0738/NA (C.A.A.F. March 31, 2009) (summary disposition).
This week at CAAF: CAAF has no scheduled oral arguments this week.
This week at the CCAs: ACCA will be hearing oral argument on Wednesday in United States v. McNaughton, No. ARMY 20090089, on this assignment of error: "The military judge erred as a matter of law when she dismissed Specification 2 of Charge II on the grounds that assimilation of a state aggravated incest statute is preempted by Article 120, UCMJ."
This week at the court-martial trial level: The court-martial of Sgt Ryan Weemer for allegedly shooting an unarmed detainee during combat operations in Fallujah will likely go to the members early this week.
This week in CLE: On Thursday, the JAA American Inn of Court will present a lecture by Major General Daniel V. Wright, the Deputy Judge Advocate General of the Army, called "Civility and Professionalism in the Courts."
Saturday, April 04, 2009
Military judge reportedly asks DOJ to prosecute Nazario for refusing to testify at Sgt Weemer's trial
[T]he military judge presiding over the case, Lt. Col. Thomas Sanzi, announced he was asking the Justice Department to prosecute Weemer's squad leader at Fallujah for refusing to testify.That trial of Nazario was in U.S. district court.
Former Sgt. Jose L. Nazario Jr. repeatedly declined to answer a prosecutor's questions when called to the stand Thursday. Nazario, who was Weemer's superior in Fallujah, was tried and acquitted last year for his role in the incident.
Friday, April 03, 2009
Most importantly, CAAF released an opinion yesterday in United States v. Von Bergen, __ M.J. ___, No. 03-0629/AF (C.A.A.F. Apr. 2, 2009). In a highly fact-specific decision, CAAF held it was error not to give the accused a new 32 after the original charges went belly up, but held that the error was harmless.
CAAF's Tuesday daily journal included an interesting summary reversal of a Navy-Marine Corps Court decision. United States v. Thomas, __ M.J. ___, No. 08-0738/NA (C.A.A.F. March 31, 2009).
Thursday, April 02, 2009
DURING PEACETIME, ALLOWING A MEMBER OF THE ARMED FORCES TO BE SENTENCED TO DEATH BY A COURT-MARTIAL PANEL OF LESS THAN TWELVE, WHEN THERE IS NO FIXED PANEL SIZE, PROMOTES UNRELIABILITY, UNDERMINES THE RIGHT TO AN IMPARTIAL FACT FINDER AND SENTENCER AND CREATES AN ARBITRARY FACTOR IN VIOLATION OF THE FIFTH, SIXTH AND EIGHTH AMENDMENTS
IN A CAPITAL COURT-MARTIAL DURING PEACETIME, THE CONVENING AUTHORITY'S POWER TO HAND-PICK MILITARY SUBORDINATES – WHOSE CAREERS HE CAN DIRECTLY AND IMMEDIATELY AFFECT AND CONTROL – TO SERVE AS COURT MEMBERS VIOLATES THE FIFTH, AND EIGHTH AMENDMENT
AN APPELLATE COURT CAN NOT ASSUME THAT THE TRIAL JUDGE MADE A DETERMINATION AS TO WHETHER TRIAL COUNSEL'S EXPLANATION WAS CREDIBLE OR PRETEXTUAL PURSUANT TO BATSON V. KENTUCKY, 476 U.S. 79 (1986), WITHOUT CONDUCTING A FURTHER HEARING ON THE ISSUE, WHEN THE TRIAL JUDGE RULED ON PETITIONER'S BATSON CLAIM WITHOUT EVEN REQUIRING THE PROSECUTOR TO PROVIDE A RACE NEUTRAL EXPLANATION FOR THE CHALLENGE.
PETITIONER WAS DENIED THE RIGHT TO A FAIR AND IMPARTIAL JURY WHEN THE MILITARY JUDGE IMPROPERLY GRANTED GOVERNMENT CHALLENGES FOR CAUSE AGAINST TWO MEMBERS
THE PEREMPTORY CHALLENGE PROCEDURE IN THE MILITARY JUSTICE SYSTEM, WHICH ALLOWS THE GOVERNMENT TO REMOVE ONE JUROR WITHOUT CAUSE, IS UNNECESSARY AND SUBJECT TO ABUSE IN ITS APPLICATION AND WAS ABUSED IN PETITIONER'S CASE
PETITIONER WAS DENIED HIS RIGHTS UNDER THE FIFTH, SIXTH AND EIGHTH AMENDMENTS BECAUSE THE PANEL MEMBER SELECTION POOL IN PETITIONER'S CASE DID NOT INCLUDE ANY FEMALES.
THE MILITARY JUDGE IMPROPERLY DENIED A DEFENSE MOTION FOR A MISTRIAL BASED ON TRIAL COUNSEL'S COMMENTS ON PETITIONER'S RIGHT TO REMAIN SILENT
THE MILITARY JUDGE PRECLUDED THE SENTENCING PANEL FROM CONSIDERING PETITIONER'S BACKGROUND AS A BASIS FOR A SENTENCE LESS THAN DEATH IN VIOLATION OF THE FIFTH, SIXTH AND EIGHTH AMENDMENTS
ARTICLE 18 OF THE UCMJ AND R.C.M. 201(F)(l)(c), WHICH REQUIRE TRIAL BY MEMBERS IN A CAPITAL CASE, VIOLATES THE FIFTH, SIXTH AND EIGHTH AMENDMENT GUARANTEE OF DUE PROCESS AND A RELIABLE VERDICT
R.C.M. 1004'S PROHIBITION AGAINST GUILTY PLEAS IN CAPITAL COURT-MARTIAL DEPRIVED PETITIONER OF A CRITICAL MITIGATING FACTOR AND CAUSED OTHER IRREPARABLE PREJUDICE IN VIOLATION OF THE FIFTH, SIXTH AND EIGHTH AMENDMENTS
PETITIONER WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AT HIS CAPITAL COURT-MARTIAL
PETITIONER'S APPELLATE COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE FIFTH, SIXTH, AND EIGHTH, AND FOURTEENTH AMENDMENTS
THE MILITARY JUDGE IMPROPERLY INSTRUCTED THE PANEL JURY IN VIOLATION OF PETITIONER’S FIFTH, SIXTH, AND EIGHTH, AMENDMENT RIGHTS
THE MILITARY JUDGE DENIED RESOURCES NECESSARY TO RETAIN EXPERT SERVICES IN CRIMINAL INVESTIGATION TO ASSIST THE DEFENSE IN VIOLATION OF THE FIFTH, SIXTH AND EIGHTH AMENDMENTS
THE AGGRAVATING FACTOR STATED IN R.C.M. 1004(c)(7)(I) IS VAGUE, FAILS TO SUFFICIENTLY CLARIFY THE FACTOR INVOLVED, AND DOES NOT NARROW THE CLASS OF PERSONS ELIGIBLE FOR THE DEATH PENALTY, AND IS THEREFORE INVALID UNDER THE EIGHTH AMENDMENT
BASED ON THE SUPREME COURT'S REASONING IN RING V. ARIZONA, 536 U.S. 584 (2002), CONGRESS UNCONSTITUTIONALLY DELEGATED TO THE PRESIDENT THE POWER TO ENACT THE FUNCTIONAL EQUIVALENT OF ELEMENTS OF CAPITAL MURDER, A PURELY LEGISLATIVE FUNCTION
THE PROPORTIONALITY REVIEW IN THIS CASE WAS INSUFFICIENT AS A MATTER OF LAW IN VIOLATION OF THE FIFTH, SIXTH AND EIGHTH AMENDMENTS
THE MANNER IN WHICH THE GOVERNMENT WOULD CARRY OUT PETITIONER'S EXECUTION VIOLATES THE EIGHTH AMENDMENT
Wednesday, April 01, 2009
A jury of officers convicted Col. Michael D. Murphy of three counts of conduct unbecoming an officer and a gentleman, one count of failing to obey a lawful order and three counts of larceny related to travel expenses for teaching engagements outside the service.Because the White House military Office refused to release Col Murphy's classified military record for use at sentencing, he will face no punishment. See coverage of that ruling here.
While Col. Murphy won't face punishment at court-martial, I suspect this isn't the last time he'll need a licensed trial lawyer in the military.
The announcement explains:
This full-day event is designed for junior and senior military attorneys transitioning from active duty to civilian or government practice. The seminar will feature panels of top attorneys from the Department of Justice and other government agencies, as well as from private practice and industry, to share tips and insights on finding employment. Many of the panelists are retired or former Judge Advocates and will share their tips on selling your skills as a JAG to government employers, law firms, and corporations.The cost is $40 on or before 1 May and $80 afterwards, including at the door.
Judge Ham reasoned:
Appellant was not on notice that he was subject to criminal prosecution by failing to discover that, unbeknownst to him and without requesting, seeking, or searching for such images, a diskette a friend gave him contained illegal child pornography. Specifically, we hold appellant was not on notice the charged conduct . . . would subject him to criminal sanction under Article 133, UCMJ. Further, we disagree appellant was on notice he had any duty to use due care to review the diskette his friend provided to "make sure there was nothing illegal" on it. There is no custom, regulation, or otherwise to the contrary.Id., slip op. at 10 (footnote omitted).
She concluded that "no reasonable officer would recognize that appellant’s unwitting conduct would bring dishonor or disrepute upon himself or his profession. To the contrary, any reasonable officer would doubt these acts constitute conduct unbecoming an officer." Id., slip op. at 11.
Amazingly the opinion is only 13 pages long and the constitutional analysis doesn't start until page 9. In those 4 short pages, the Court, reversing my friend CDR DeOliveira, finds Art. 120 constitutional, holding that (1) because the "Government is not required to prove 'lack of consent' as an identified or implied element of aggravated sexual contact," there is no burden shifting violation of the Due Process Clause and (2) a saving construction of the statute is in order to avoid the constitutional question of excluding evidence to negate an element of the offense. To avoid the constitutional question raised by interpreting Art. 120 as excluding evidence of lack of consent to negate the element of force in Art. 120, Judge Price writes,
We interpret the words “consent [is] not an issue” as highlighting Congress’ removal of “lack of consent” as an element that must be proven by the Government. Art. 120(r), UCMJ. We also interpret the language “except [it is] an affirmative defense for the sexual conduct in issue in a prosecution under subsection [(e) aggravated sexual contact]” as reflecting establishment of the affirmative defense of consent to identified offenses including “aggravated sexual contact.” Art. 120(r), UCMJ. To be clear, this construction is necessary to ensure the accused due process of law, as the finder of fact must be free to consider relevant, admissible evidence, including evidence going to the affirmative defense of consent, in determining whether there is a reasonable doubt about the sufficiency of the Government’s proof as to the elements of the offense.
I will leave additional editorial and synopsis to CAAFlog tonight.