CAAFlog

CAAFlog Has Moved

2009-07-15T23:37:00.004-04:00

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

New Home for CAAFlog

2009-07-15T21:43:00.005-04:00

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

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

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

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

2009-07-15T17:11:00.003-04:00

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

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

CAAF issues opinion on IAC claim

2009-07-15T17:09:00.003-04:00

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

More later.

British Forces Face Same Challenges

2009-07-14T23:04:00.004-04:00

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

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

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

Upgrades

2009-07-13T21:39:00.003-04:00

Readers-

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

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

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

June Army Lawyer online

2009-07-13T19:54:00.002-04:00

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

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

The end is near

2009-07-13T19:37:00.005-04:00

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

SG's time to reply to Rodriguez cert petition extended

2009-07-12T11:03:00.004-04:00

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

This week in military justice -- 12 July 2009 edition

2009-07-12T10:54:00.003-04:00

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

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

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

Unpacking McCracken

2009-07-11T22:05:00.019-04:00

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

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

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

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

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

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

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

1. WHY is NMCCA's opinion erroneous?

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

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

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

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

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

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

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

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

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

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

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

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

. . . .

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

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

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

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

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

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

Bad press coverage

2009-07-11T16:14:00.003-04:00

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

New commentator joins the CAAFlog herd

2009-07-11T12:16:00.003-04:00

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

CAAF and commissions

2009-07-10T22:00:00.003-04:00

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

10 U.S.C. § 950f would provide:

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

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

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

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

Quick McCracken observation

2009-07-10T17:44:00.004-04:00

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

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

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

2009-07-10T17:02:00.005-04:00

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

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

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

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

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

New CAAF opinion on detailing authority for defense counsel

2009-07-09T18:50:00.004-04:00

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

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

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

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

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

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

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

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

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

Volume 57 of Naval Law Review now online

2009-07-08T18:00:00.004-04:00

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

CAAF grants [revised]

2009-07-08T17:52:00.004-04:00

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

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

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

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

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

2009-07-08T17:37:00.002-04:00

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

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

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

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

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

New Capital Court-Martial

2009-07-08T13:03:00.004-04:00

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

Marine Corps Times cover story on the Foster case

2009-07-07T22:25:00.004-04:00

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

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

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

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

Cox Commission hearing web cast available

2009-07-07T17:04:00.002-04:00

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

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

2009-07-06T19:55:00.005-04:00

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

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

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

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

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

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

2009-07-06T19:15:00.007-04:00

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

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

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

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

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

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

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

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

AFCCA denies recon and recon en banc in Nerad

2009-07-06T17:19:00.003-04:00

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

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

CAAF Rules Guide 13th

2009-07-05T21:45:00.002-04:00

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

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

2009-07-05T20:58:00.004-04:00

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

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

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

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

2009-07-02T18:04:00.003-04:00

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

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

Rodriguez trailers: have I missed something?

2009-07-02T17:17:00.003-04:00

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

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

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

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

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

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

No Tweet Justice in Michigan

2009-07-02T09:08:00.004-04:00

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

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

CAAF opinion alert

2009-07-01T17:37:00.002-04:00

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

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

2009-07-01T17:14:00.002-04:00

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

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

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

h/t NBM3

Rodriguez and computation of time

2009-07-01T17:10:00.003-04:00

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

CAAF grant

2009-07-01T17:06:00.003-04:00

CAAF granted review on the following issue today:

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

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

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

ACCA rejects challenge to providence of drug possession plea

2009-06-30T17:18:00.003-04:00

An accused intends to distribute all of his marijuana. He inadvertently leaves a baggie in his pocket after he has distributed the rest. Does his statement during the providence inquiry that he was unaware of his continued possession of the baggie's content invalidate his plea? No, rules ACCA in a published opinion. United States v. Gonzalez, __ M.J. ___, No. ARMY 20080111 (A. Ct. Crim. App. June 26, 2009). Chief Judge Beck wrote for a unanimous panel.

ACCA explains:

A person who knowingly possesses a substance and thereafter misplaces or forgets about it or through inadvertence fails to distribute all of what he intended is nonetheless guilty of knowing possession when that substance is thereafter found within the person's control. Subsequent forgetfulness or negligence in possession does not negate otherwise-knowing possession of a controlled substance under Article 112a.

Id., slip op. at 4.

ACCA recommends a change to the Benchbook to reflect that statement of the law: "We specifically disapprove any implication to the contrary in Dept of the Army Pam. 27-9, Legal Services -- Military Judges' Benchbook, paragraph 3-37-1, note 3 and encourage the drafters to revise the note." Id., slip op. at 4. n.4.

To me, the most surprising thing about the opinion is that "Elisa" is a guy's name.

Recent "Military" Justice (MEJA) - An Odd Twist on an "Old" Law

2009-06-30T08:43:00.010-04:00

[UPDATE: I have now seen the full Indictment and none of the Counts require MEJA, they are eithery bribery or conspiracy to commit bribery with one exception (mail fraud, and I admit I have not done the research on the extra-territorrial application of the mail fraud based on the facts of the case). Bribery has its own extra-territorial component. But, as an academic matter I will leave the discussion below.]

For those that follow prosecutions of former or current servicmembers under MEJA, you will find this DOJ press release very interesting. DOJ's summary of the case said:

[An Army major and an Air Force master sergeant] pleaded guilty to various bribery, fraud and conspiracy charges relating to Department of Defense (DOD) contracts in Afghanistan, the Department of Justice announced today. [An Army sergeant] pleaded guilty to receiving stolen property, which was obtained through the bribery conspiracy. In addition, four DOD contractors and four affiliated contracting companies were indicted for their roles in paying bribes to the military officials and otherwise defrauding the United States. The pleas of the military officials were filed today in U.S. District Court in Chicago. A superseding indictment of the contractors and companies was filed yesterday in U.S. District Court in Chicago.

As the case shows, military members can be prosecuted in federal district court when they conspire with civilians. See MEJA, 18 USC 3261(d)(2) (permitting MEJA prosecutions when members commit "the offense with one or more other defendants, at least one of whom is not subject to" the UCMJ).

In these procurement fraud cases where all the contractors are DOD contractors, who is subject to the UCMJ for purposes of MEJA these days? I'd say that at a minimum, all DOD contractor employees working for contractors with contracts in Afghanistan are technically "subject to the UCMJ." Who in these procurement fraud cases isn't subject to the UCMJ? In this case it could have been the company had DOJ needed MEJA. Will this odd twist (a) force DOJ to avoid MEJA in charging or (b) force DOJ to go after a company as a defendant to ensure jurisdiction in other cases that require MEJA? I don't know that such a metric has been borne out yet, though you would think in 3 years it would have. I'll get back to everyone with some stats later this week.

Second thought--not be to overly conspiratorial, but can a DOD contractor can be prosecuted while they are still employed in support of a battlefield contract given the language of MEJA? MEJA (a statute) trumps the SecDef Memo on right of first refusal for UCMJ jurisdiction, so that's not an issue. Also, the lead in portion of subsection (d) discusses "member of the Armed Forces subject to . . .," whereas the exception in (d)(2) omits the "member of the Armed Forces" language. Also, the term member of the Armed Forces is used elsewhere to distinguish members from civilian DOD employees and contractors. So I may have resolved my own question. But, here is the full text of 18 USC 3261(d), you decide:

No prosecution may be commenced against a member of the Armed Forces subject to chapter 47 of title 10 (the Uniform Code of Military Justice) under this section unless—
(1) such member ceases to be subject to such chapter; or (2) an indictment or information charges that the member committed the offense with one or more other defendants, at least one of whom is not subject to such chapter.

Another Cox Commission preview

2009-06-29T22:47:00.002-04:00

This article from Tuesday's Stars and Stripes reports on more possible recommendations by the Cox Commission.

Some thoughts about the CCAs' oral argument practice

2009-06-28T20:29:00.005-04:00

It turns out that the data set isn't sufficiently rich to do meaningful inter-CCA analysis of oral argument practice. Disturbingly, one of the best sources of information about the CCAs' oral argument practice is our TWIMJ. But we've only been running that feature in a systematic way since 23 November 2008. Once we've been tracking the CCAs' oral argument practice through TWIMJ for a longer time, we may be able to make some meaningful statistical observations. Future analysis will also be aided by ACCA's move in late February 2009 to include summary dispositions on its web site. Analysis would be further aided if NMCCA would indicate on its opinions when the case was orally argued -- as ACCA seems to do and as AFCCA usually, but not invariably, does. And we'd be nearing military justice wonk heaven if NMCCA would follow the practice of every other CCA and every Article III court and make all of its opinions available online.

In the meantime, the scant available data suggest some questions even if they don't reveal answers. Are there differences in the way CCAs respond to oral argument requests from retained counsel versus oral argument requests from military or civil service counsel? We've noted that AFCCA decided two cases without ruling on oral argument requests this year -- one from military appellate defense counsel and one from a DOD-employed civilian counsel (me). On the other hand, three of the seven oral arguments AFCCA has heard this term are in cases where the request came from retained civilian counsel.

Perhaps it's also useful to ask what percentage of argued cases result in published opinions and what percentage of published cases were orally argued. Interestingly, in three of the four cases in which NMCCA has heard oral argument this term and has issued an opinion, the opinion was published. For AFCCA, that statistic is two out of six. With the limitations on the existing data set, it isn't apparent what the figure is going the other way -- i.e., how many of the 22 published CCA opinions issued thus far in calendar year 2009 arose from cases that were orally argued. (I know that seven were, but it's possible that the number is higher and perhaps even much higher.)

It also appears that a large percentage of cases in which the United States is seeking relief (i.e., Article 62 appeals and petitions for extraordinary relief in which the government is the petitioner) are orally argued. However, in one Article 62 appeal decided by the Air Force Court this year, the court denied a motion for oral argument before ultimately ruling for the government. (That means that AFCCA has denied at least three requests for oral argument this year while hearing a total of seven oral arguments.)

What is probably the most interesting statistic isn't available from the available data and won't be available even as that data set fills out over time: in what percentage of cases do the various CCAs deny requests for oral argument and are there any statistically significant factors that correlate with such denied requests?

Looking for apparent correlations between oral argument and outcome will have to await the development of a much larger data set.

In the meantime, can anyone provide us with anecdotal evidence of why ACCA will hear almost three times as many oral arguments during the first half of this year compared to NMCCA, even though those two courts' dockets are roughly the same size? Here's an interesting statistic -- NMCCA has heard oral argument in 2009 in just three Article 66 appeals. (The other two cases in which it's heard oral argument were Article 62 appeals.) Has it denied requests for oral argument in Article 66 appeals? Or are counsel almost never asking? Another interesting stat in thinking about the difference between ACCA's practice and NMCCA's practice: even though the number of cases that the two courts received for docketing last fiscal year are comparable (ACCA = 867; NMCCA = 852), the percentage of the appellate docket devoted to SPECIAL courts-martial is almost twice as great for NMCCA (76%) as for ACCA (39%). (For AFCCA, the incoming cases were split almost down the middle -- 159 GCMs and 156 SPCMs.) Does the higher percentage of GCMs on ACCA's docket help to explain the difference? Perhaps. Interestingly, of the five cases orally argued at NMCCA this year, all were GCMs. Of the seven cases orally argued at AFCCA this year, five were GCMs. Obviously it would also be useful to know the breakdown of contested cases versus guilty pleas on the Big Three CCAs' dockets.

So lots of questions, no answers.

This week in military justice

2009-06-28T19:44:00.002-04:00

This week at the Supremes: The Supremes are done with their military justice work for the term. The fate of the three pending military cert petitions -- Wuterich v. United States, No. 08-1133; Rodriguez v. United States, No. 08-1465; and Stephens v. United States, No. 08-1514 -- will probably be decided at the 29 September 2009 conference and certainly not before then. [Familiar disclaimer: I'm counsel of record for the petitioner in both Wuterich and Stephens.)

This week at CAAF: CAAF is done with oral arguments for the term.

This week at the CCAs: ACCA will hear three oral arguments tomorrow. First up is United States v. Pettibone, No. ARMY 20070485, where the assignment of error being argued is: "THE EVIDENCE IS LEGALLY AND FACTUALLY INSUFFICIENT TO SUPPORT THE FINDINGS OF GUILTY FOR ASSAULT WITH A DANGEROUS WEAPON IN THE SPECIFICATION OF CHARGE I AND FOR MAIMING IN THE SPECIFICATION OF CHARGE II WHERE THE GOVERNMENT FAILED TO PROVE THAT APPELLANT DID NOT ACT IN SELF DEFENSE." ACCA will then hear argument in United States v. Markis, No. ARMY 20070580 (a civilian counsel case), where the assignments of error being argued are: "THE EVIDENCE IS LEGALLY AND FACTUALLY INSUFFICIENT TO SUSTAIN APPELLANT'S CONVICTION FOR RAPE"; "THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE IMPROPERLY EXCLUDED SGM RICHARDSON FROM THE PANEL FOR CAUSE"; and "THE MILITARY JUDGE VIOLATED M.R.E. 704 WHEN HE WOULD NOT ALLOW THE DEFENSE EXPERT, DR. CHRISTIAN MEISSNER, TO PRESENT AN EXPERT OPINION ON WHETHER SSG MARKIS WOULD BE SUBJECT TO HEIGHTENED SUGGESTIBILITY AND MANIPULATION AS A RESULT OF THE INTERROGATIONS HE UNDERWENT." Tomorrow afternoon, ACCA will hear oral argument in United States v. Clark, No. ARMY 20070957, on this assignment of error: "THE EVIDENCE IS LEGALLY AND FACTUALLY INSUFFICIENT TO SUSTAIN APPELLANT’S CONVICTION FOR RAPE."

CCAs' oral argument practice [CORRECTED]

2009-06-27T00:31:00.008-04:00

When June ends, marking the calendar year's halfway point, ACCA will have heard 14 oral arguments in 2009. (This post originally counted 13 ACCA oral arguments. I had missed United States v. Gross, No. MISC ARMY 20081049.) AFCCA will have heard seven. NMCCA will have heard only five. And CGCCA will have heard only one.

Put CGCCA to the side -- it's sui generis. What explains the great disparity between the number of oral arguments heard by ACCA and those heard by the remaining two CCAs?

I know of at least one case this year in which AFCCA issued an opinion despite a pending oral argument request, thus effectively denying the request. Are AFCCA and/or NMCCA denying a large number of oral argument requests? Or are Army counsel asking for argument more often? Of the argued Army cases, in what percentage did the defense seek oral argument, in what percentage did the government seek oral argument, and in what percentage did the court sua sponte order oral argument?

CAAF opinion alert

2009-06-26T18:14:00.002-04:00

CAAF has released its opinion in United States v. Chatfield, __ M.J. __, No. 08-0615/NA (C.A.A.F. June 26, 2009). The opinion is available here.

Audio galore

2009-06-26T18:08:00.003-04:00

CAAF has posted audio of Wednesday's argument in United States v. Ashby, No. 08-0770/MC, here and has posted audio of Wednesday's argument in United States v. Schweitzer, No. 08-0746/MC, here.

NMCCA has posted audio of Thursday's uncommonly interesting en banc oral argument in United States v. Wuterich here. [Familiar disclaimer: I'm one of appellee's counsel in Wuterich, but we didn't participate in the oral argument. The argument involved government counsel and counsel for CBS.]

BREAKING NEWS: Government moves for recon, recon en banc, and oral argument in U.S. v. Nerad

2009-06-26T17:22:00.003-04:00

We previously discussed AFCCA's holding in United States v. Nerad, __ M.J. ___, No. ACM 36994 (A.F. Ct. Crim. App. May 29, 2009), that it has the authority and discretion to invalidate a finding of guilty that was legally and factually sufficient. The Air Force Government Trial and Appellate Counsel Division today filed motions with AFCCA asking the court to reconsider that opinion, asking for reconsideration en banc, and asking for oral argument.

We're putting in a FOIA request for JAJG's filings. We'll post them when we get them.

Melendez-Diaz: Bad News For Armed Forces Drug labs

2009-06-25T20:48:00.006-04:00

Today's 5-4 application of Crawford v. Washington is another shot of bad news for already embattled armed forces drug screening labs. See SCOTUSBlog coverage here and opinion here.

I think CAAF will need to re-look at the rule in United States v. Magyari, 63 M.J. 123, 125 (C.A.A.F. 2006). Here is how CAAF distinguished Magyari (admissible drug lab report on urine testing for drugs) from United States v. Harcrow, 66 M.J. 154 (C.A.A.F. 2008) (inadmissbile lab report on testing of drugs),

Our reasoning in Magyari that “[b]ecause the lab technicians were merely cataloging the results of routine tests, the technicians could not reasonably expect their data entries would ‘bear testimony’ against [a]ppellant at his court-martial” does not apply here.

While you could argue that CAAF's decision in Harcrow (with nearly identical facts to Melendez-Diaz) would make the Magyari facts fit within Melendez-Diaz, this passage from Melendez-Diaz was a shot across the bow (or possible up it) of Magyari and similar cases:

Respondent claims that there is a difference, for Confrontation Clause purposes, between testimony recounting historical events, which is "prone to distortion or manipulation," and the testimony at issue here, which is the "resul[t] of neutral, scientific testing." . . . Relatedly, respondent and the dissent argue that confrontation of forensic analysts would be of little value because "one would not reasonably expect a laboratory professional . . . to feel quite differently about the resultsof his scientific test by having to look at the defendant." . . . This argument is little more than an invitation to returnto our overruled decision in Roberts . . . which held that evidence with "particularized guarantees of trustworthiness" was admissible notwithstanding the Confrontation Clause.

We'll see what happens, though the harmless error analysis in Harcrow is interesting in light of SCOTUS not addressing the issue.

Rodney Dangerfield note: Justice Kennedy has caught on to the existence of the military justice system, see Dissent at 22, but apparently Justice Scalia has not--no cite to Harcrow anywhere (though in light of the Magyari precedent discussed infra., the omission may well have been intentional).

[WARNING: Non-military justice post] SCOTUS October Term, 2008

2009-06-24T20:58:00.002-04:00

I've been enjoying immensely Slate's Supreme Court Breakfast Table discussion by Walter Dellinger, Linda Greenhouse, and Dahlia Lithwick.

Navy announces new JAG flag nominations

2009-06-24T19:10:00.002-04:00

Navy Rear Adm. James W. Houck has been nominated for appointment to the rank of vice admiral and assignment as judge advocate general of the Navy, Washington, D.C. Houck is currently serving as deputy judge advocate general of the Navy/commander, Naval Legal Service Command, Washington, D.C.

Navy Captain Nanette M. Derenzi has been nominated for appointment as deputy judge advocate general of the Navy and appointment to the rank of rear admiral. Derenzi is currently serving as staff judge advocate, U.S. Southern Command, Miami, Fla.

I've known CAPT DeRenzi for about two decades and couldn't be more thrilled. This is great for her, but even better for the Navy JAG Corps.

CAAF halts appellate proceedings in Akbar

2009-06-24T17:13:00.003-04:00

CAAF yesterday ordered ACCA's proceedings in the capital case of United States v. Akbar stayed as CAAF considers a petition for extraordinary relief. See Akbar v. Army Court of Criminal Appeals, __ M.J. ___, No. 09-8026/AR (C.A.A.F. June 23, 2009) (order); Akbar v. United States, __ M.J. ___, No. 09-8025/AR (C.A.A.F. June 23, 2009) (order). We've posted CAAF's orders here. The underlying issue on the petition for extraordinary relief deals with whether the United States and ACCA erred in denying litigation resources to Akbar's appellate defense counsel. The government was ordered to show cause by 6 July why CAAF shouldn't order the requested relief.

Cox Commission sneak peek

2009-06-23T23:41:00.003-04:00

According to this report in Wednesday's Stars and Stripes, the Cox Commission will recommend a UCMJ amendment to criminalize animal cruelty. Kent Harris, Panel suggests adding animal cruelty to UCMJ, Stars & Stripes, June 24, 2009. (Obviously the article gets some things wrong, like appearing to confuse the Cox Commission with NIMJ. The article also muddles the distinction between the UCMJ and presidentially enumerated Article 134 offenses, meaning that its suggestion that the Cox Commission will recommend a UCMJ amendment as the vehicle for prohibiting animal cruelty may be inaccurate.)

NMCCA issues unpublished opinion in Moreno

2009-06-23T17:21:00.004-04:00

NMCCA today issued a lengthy unpublished opinion affirming Cpl Moreno's conviction and dishonorable discharge (the max authorized sentence under CAAF's opinion) on remand. United States v. Moreno, No. NMCCA 200100715 (N-M. Ct. Crim. App. June 23, 2009). We've posted the opinion here.

NMCCA's Ross opinion

2009-06-23T17:17:00.004-04:00

Yesterday, we discussed CAAF's grant of a Walters/Seider issue in United States v. Ross. We have now received a copy of NMCCA's opinion in the case, which we've posted here. United States v. Ross, No. NMCCA 200800313 (N-M. Ct. Crim. App. Dec. 4, 2008) (per curiam).

This case effectively refutes some sniping in the comments section suggesting that the CCAs haven't been sufficiently attentive to Walters/Seider issues. This case was originally submitted on the merits to NMCCA, which specified the Walters/Seider issue.

New CAAF grant

2009-06-23T17:16:00.000-04:00

CAAF granted review today on the following issue: "Whether the military judge abused her discretion in denying the defense motion to suppress all evidence from Appellant's home." United States v. Cowgill, __ M.J. ___, No. 09-0376/AF (C.A.A.F. June 23, 2009). AFCCA's unpublished decision in the case is available here. United States v. Cowgill, No. S31404 (A.F. Ct. Crim. App. June 23 2009). The AFCCA panel had split 2-1 on the validity of the search of SSgt Cowgill's home. Judge Helget's opinion for the court, joined by Judge Brand, concluded that the military judge didn't abuse her discretion by concluding that the civilian magistrate had a sufficient basis to issue the search warrant. The majority also concluded that even if there was inadequate probable cause, the fruits of the search would still be admissible under the Fourth Amendment exclusionary rule's good faith exception. Judge Jackson dissented from both of those holdings.

Sweet justice, yes; tweet justice, no

2009-06-22T22:06:00.003-04:00

Yesterday's Stars and Stripes included this article reporting that Military Judges' Benchbook honcho COL Ted Dixon is drafting instructions for military judges to deliver to members panels concerning use of Internet resources and social networking sites while the case is pending. Kent Harris, Jury instructions to include rules on use of new media, Stars & Stripes, June 21, 2009. The article also reports that "[i]n the meantime, some judges are already using their own versions. In recent courts-martial in Italy, Army and Air Force judges have warned jurors not to talk about the trial with others using any form of communication."

h/t Phil Cave's Court-Martial Trial Practice blog

Two new Walters/Seider issues

2009-06-22T21:35:00.004-04:00

When I was writing an extended post about remedies for Walters/Seider violations on Friday, I was unaware that on that very day, CAAF had granted review of two Walters/Seider issues arising from naval cases.

The granted issue in United States v. Ross, No. 09-0242/MC, is : "WHETHER, BY FINDING APPELLANT GUILTY OF THE CHARGE AND SPECIFICATION EXCEPT FOR THE WORDS 'ON DIVERS OCCASIONS,' THE MILITARY JUDGE RENDERED AMBIGUOUS FINDINGS NOT CAPABLE OF REVIEW UNDER ARTICLE 66, UCMJ, 10 U.S.C. § 866." I can't find NMCCA's opinion in the case anywhere online -- including in the formerly comprehensive but now useless Navy Knowledge Online. If anyone has a copy, please e-mail it to us at caaflog@caaflog.com. The wording of the issue makes clear that this is a judge-alone case, so it could present the remedy isuse we discussed regarding Wilson.

The granted issue in United States v. Trew, No. 09-0414/NA, is "WHETHER, IN LIGHT OF UNITED STATES v. WALTERS, 58 M.J. 391 (C.A.A.F. 2003) AND UNITED STATES v. SEIDER, 60 M.J. 36 (C.A.A.F. 2004), THE CHARGE AND SPECIFICATION MUST BE DISMISSED WITH PREJUDICE, BECAUSE THE LOWER COURT COULD NOT CONDUCT A PROPER APPELLATE REVIEW UNDER ARTICLE 66 AND DOUBLE JEOPARDY PREVENTS A REHEARING. SEE UNITED STATES v. WILSON __ M.J. ___ (C.A.A.F. 2009)." NMCCA's opinion in the case is published at 67 M.J. 603. We briefly discussed Trew here. Like Wilson, Trew was a judge-along court-martial. So if CAAF rules for the defense and CDR Battin is still on the bench, it could also provide CAAF with an opportunity to remand the case for clarification as a remedy for a Walters violation in a judge-alone case.

This week in military justice -- 21 June 2009 edition

2009-06-21T15:07:00.003-04:00

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

This week at CAAF: CAAF will hold oral argument in the twin Aviano cases of United States v. Ashby, No. 08-0770/MC, and United States v. Schweitzer, No. 08-0746/MC, on Wednesday. The many issues in the cases are synopsized here. The argument will be a melancholy event since Judge Everett was to have sat on the court for both cases. I don't know who will sit in his place; it could be another CAAF senior judge, acting Chief Judge Erdmann could ask Chief Justice Roberts to designate an Article III judge to sit with CAAF pursuant to Article 140(f), or the court could sit with just four judges, which would give an advantage to the government. (If just four judges sit, a tie vote affirms the lower court's judgment, which would mean that the government would need only two votes to prevail rather than three; essentially, the missing judge is spotted to the party that prevailed below, in these cases the government.)

This week at the CCAs: On Thursday, NMCCA will set en banc to hear the government's second Article 62 appeal in the case of United States v. Wuterich. The issues to be argued deal with the existence of a qualified reporter's privilege. The court will hear argument from counsel for the United States and for CBS. Counsel for SSgt Wuterich (of which I am one) haven't taken a position on the issues being argued and respectfully declined NMCCA's offer to let them participate in the argument. A synopsis of the case is available here. On Friday, AFCCA will hear oral argument in United States v. Streete. The issues to be argued are:

I. WHETHER EITHER THE MILITARY JUDGE OR APPELLANT'S TRIAL DEFENSE COUNSEL ALLOWED SPILLOVER TO UNDULY PREJUDICE APPELLANT'S RIGHT TO A FAIR TRIAL.
II. WHETHER APPELLANT'S SENTENCE THAT INCLUDED EIGHT YEARS CONFINEMENT AND A DISHONORABLE DISCHARGE IS HIGHLY EXCESSIVE.
III. WHETHER APPELLANT'S CONVICTION TO ADDITIONAL CHARGE II AND ITS SPECIFICATION, ALLEGING THE VIOLATION OF A "NO CONTACT" ORDER IS LEGALLY AND FACTUALLY SUFFICIENT.

Flyspecking Denedo

2009-06-20T23:22:00.003-04:00

The current Supreme Court term began with the Court wrestling with the implications of a military justice statute it had previously overlooked. See Kennedy v. Louisiana, 129 S. Ct. 1 (2008). How well did the Supremes understand the military justice system in Denedo? The answer appears to be pretty well, but not perfectly.

Let's start with the majority opinion.

The first inaccuracy seems to arise from imprecise use of language rather than a lack of understanding of the system. Justice Kennedy's opinion for the Court explains, "In exchange for his plea the convening authority referred respondent's case to a special court-martial, §819, which, at the time, could not impose a sentence greater than six months' confinement." Denedo, slip op. at 2. Of course, even before the National Defense Authorization Act for Fiscal Year 2000 increased the length of confinement that a special court-martial could adjudge, special courts-martial could (and often did) impose sentences greater than six months' confinement -- in a case with an enlisted accused, they could impose a sentence of six months' confinement, plus a bad-conduct discharge, plus forfeiture of 2/3 pay per month for 6 months, plus reduction to pay grade E-1.

Second, in discussing Clinton v. Goldsmith, the Denedo majority opinion states: "Following [Major Goldsmith's] conviction, Congress enacted a statute authorizing the President to drop convicted officers from the rolls of the Armed Forces." Denedo, slip op. at 7. Actually, authorization to drop convicted officers from the rolls existed long before Maj Goldsmith's conviction; in fact, section 10 of the UCMJ as enacted in 1950 provided that "the President may at any time drop from the rolls of any armed force any officer who has been absent without authority from his place of duty for a period of three months or more, or who, having been found guilty by the civil authorities of any offense, is finally sentenced to confinement in a Federal or State penitentiary or correctional institution." 81 P.L. 506, § 10; 64 Stat. 107, 146. What the National Defense Authorization Act for Fiscal Year 1996, 110 Stat. 325, actually did was expand the grounds for dropping an officer from the rolls to include confinement for at least six months resulting from a court-martial conviction.

Third, the Denedo majority opinion rather obviously mischaracterizes what happened in Clinton v. Goldsmith. The Denedo majority opinion states, "Goldsmith sought extraordinary relief as authorized by the All Writs Act to enjoin the President from removing him from the rolls. The AFCCA denied relief, but the CAAF granted it." Denedo, slip op. at 7. In fact, Maj Goldsmith never petitioned AFCCA to enjoin the President from dropping him from the rolls. It's strange that the Denedo majority would make this mistake, because Justice Souter's opinion for the Court in Clinton v. Goldsmith emphasizes this point:

Goldsmith did not immediately contest the proposal to drop him, but rather petitioned the Air Force Court of Criminal Appeals for extraordinary relief under the All Writs Act, 28 U.S.C. § 1651(a), to redress the unrelated alleged interruption of his HIV medication during his incarceration. The Court of Criminal Appeals ruled that it lacked jurisdiction to act, and it was in Goldsmith's appeal from that determination that he took the first steps to raise the issue now before us, an entirely new claim that the Air Force's action to drop him from the rolls was unconstitutional.

526 U.S. 529, 532-33 (1999).

Fourth, the Denedo majority doesn't seem to understand the distinction between the court-martial and the convening authority. The majority quotes Article 67(c)'s language that CAAF has authority over "matters of law" connected to "the findings and sentence as approved by the convening authority . . . ." Denedo, slip op. at 10. Explaining how that provision is satisfied in this case, the majority opinion states, "Respondent's Sixth Amendment claim presents a 'matte[r] of law' with respect to the [guilty] findings . . . as approved by the [special court-martial] . . . ." Id. (all alterations except final ellipsis in original). So the Court substituted "as approved by the [special court-martial]" for "as approved by the convening authority." But, of course, it isn't the special court-martial that approves its own findings and sentence. Rather, it's the convening authority--in Denedo's case the Commanding Officer of USS JOHN F. KENNEDY--who approves the sentence (and who sometimes acts on the findings).

The dissent also got a couple of little things wrong. First, Chief Justice Roberts' dissenting opinion states, "The CCAs provide direct, record-based review of court-martial judgments, but they may only review cases referred by the judge advocate general, who in turn refers only those cases in which specific sentences are imposed. 10 U.S.C. §§866(b), (c)." Denedo dissent, slip op. at 3. But a Judge Advocate General doesn't refer only cases resulting in a specific sentence. Rather, a Judge Advocate General can -- and, as AFCCA's recent decision in United States v. Harvey demonstrates, sometimes does -- refer cases with lesser sentences to a CCA under the authority granted by Congress in Article 69(d)(1).

The other minor glitch in the dissent occurs in its discussion of DuBay hearings. The dissenting opinion states, "Instead, the CCAs will have to resort to the procedures invented by United States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967), under which a new convening authority will refer a case to a new court-martial, and task various military personnel who have no prior familiarity with the case to conduct an out-of-court evidentiary hearing on the merits of the petitioner's claim." Denedo dissent, slip op. at 10. First, of course, DuBay hearings aren't necessarily sent to a "new convening authority"; the case is often remanded to the same convening authority who convened the original court-martial. Nor is the case necessarily referred to a new court-martial. I can't think of a time when I've seen a new court-martial created to handle a DuBay hearing. Has anyone else? Finally, I have no idea what the dissent means by "an out-of-court evidentiary hearing." The whole point of a DuBay hearing is to have an in-court evidentiary hearing.

These errors are all minor; overall, the Court did a good job dealing with our rather idiosyncratic system. Still, it's striking how many even small errors are in a decision of an institution with the stature and brainpower of the Supreme Court.

SG's deadline extended in Wuterich

2009-06-20T01:28:00.003-04:00

SCOTUS has extended the SG's deadline for filing a response to the Wuterich v. United States cert petition, No. 08-1133, until 5 August 2009. [Familiar disclaimer: I'm petitioner's counsel of record in Wuterich.]

Thinking about House, Denedo, and review of subjurisdictional contested convictions

2009-06-20T01:23:00.003-04:00

The Navy JAG's recent ruling on the House petition for new trial was satisfying and probably just. It was also legally incorrect.

LT House was found guilty by a general court-martial of conduct unbecoming an officer for alleged sexual misconduct, as well as two other offenses. One of the convictions was set aside on Article 69 review, which LT House received because his sentence didn't qualify his case for an Article 66 appeal to the Navy-Marine Corps Court of Criminal Appeals. Several years after LT House was convicted, it was discovered that the Army Crime Lab examiner who conducted the testing in his case was falsifying reports. The Army Crime Lab's subsequent retesting of the evidence from LT House's case revealed that, contrary to the original DNA examiner's report and testimony, the semen on a condom didn't match LT House's DNA. Rather, LT House was actually excluded as a potential source of the semen. The retesting also disproved other DNA evidence upon which the prosecution relied at LT House's trial.

The threshold legal issue facing the Navy JAG when considering LT House's petition for new trial was whether such a petition may be granted even if it isn't filed within Article 73's two-year deadline. The Navy JAG ruled that the two-year deadline is subject to equitable tolling. The opinion states:

There is a dearth of military case law pertaining to equitable tolling; however, a recent example can be found in United States v. Luke, 63 M.J. 60 (C.A.A.F. 2006), another case involving deficiencies in Mr. Mills' DNA processing procedures. Although the court did not expressly invoke the doctrine of equitable tolling, the fact that the court acted upon a petition for new trial that was submitted outside the prescribed two-year statutory period indicates that the doctrine was applied.

United States v. House, slip op. at 3 n.2.

There are a few problems with this passage. First, Luke isn't a petition for new trial case. Rather, it was before CAAF on a petition granting review of NMCCA's affirmance of the case under Article 66. Contrary to the Navy JAG's opinion, CAAF didn't "act[]upon a petition for new trial" in Luke. Second, the opinion overlooks United States v. Van Tassel, 38 M.J. 91, 93 (C.M.A. 1993), which actually was a petition for new trial case where a court tolled Article 73's filing period. Third, and most importantly, the opinion fails to consider the Supreme Court's opinion in Bowles v. Russell, 551 U.S. 205 (2007), and CAAF's opinion in United States v. Rodriguez, 67 M.J. 110 (C.A.A.F. 2009).

In Bowles, the Supreme Court emphasized that "[w]e have long and repeatedly held that the time limits for filing a notice of appeal are jurisdictional in nature." 551 U.S. at 206. Bowles emphasized "the jurisdictional significance of the fact that a time limitation is set forth in a statute." Id. at 210. A court has no power to extend such a statutory deadline because a "Court has no authority to create equitable exceptions to jurisdictional requirements." Id. at 214.

But for Article 73, a Judge Advocate General has no authority to set aside a finding of guilty. On the contrary, Article 76 forbids a Judge Advocate General from setting aside a final finding of guilty except as provided by Article 73. Article 73's two-year statutory deadline would, therefore, appear to have the same jurisdictional effect on a Judge Advocate General's power to grant a petition for new trial as a statutory deadline has on an appellate court's jurisdiction to rule on an appeal. Yet the Navy JAG's ruling in House fails to even mention Bowles, much less wrestle with its implications for a Judge Advocate General's authority to equitably toll Article 73's two-year filing deadline.

Having found the power to equitably toll the petition for new trial filing deadline, the Navy JAG proceeded to use it. The opinion reasons that within the two-year petition for new trial period, the United States government suspended the same examiner who conducted the DNA testing in LT House's case because he permitted contamination in his testing process. House, slip op. at 3. (The examiner's even greater acts of misconduct appaerntly weren't discovered until a year and a half later, past the two-year deadline for LT House to file a petition for new trial.) Yet the U.S. government failed to advise LT House of the examiner's suspension. Id. The Navy JAG's opinion reasons:

Had the accused received timely Brady notice, he would have been able to submit a petition for new trial within the prescribed limitations. As the government was responsible for the delay in communicating the requisite information, the government should not be permitted to strictly enforce the two-year limitation. Accordingly, I find that the two-year statutory limitation on the filing period for a new trial was equitably tolled as of January 2004 [when Mr. Mills was initially suspended].

Id.

The Navy JAG proceeded to rule that the retesting of the DNA evidence provided a basis for invalidating LT House's conviction to the conduct unbecoming charge. He concluded, "In light of the significant differences between the new DNA evidence and the DNA evidence presented at trial, the arguments and theories that would have been available to the defense with knowledge of the new evidence, and all other pertinent facts, I conclude that this evidence would probably produce a substantially more favorable outcome for the accused." Id., slip op. at 5.

But that still left one finding of guilty intact -- conspiracy to make a false statement. The Navy JAG set aside that finding of guilty as well. But his rationale for doing so is unpersuasive. LT House was charged with and convicted of conspiring with two other Navy lieutenants to make false statements. Apparently the specification originally alleged particular acts in furtherance of the conspiracy. But the military judge found LT House guilty be exceptions and substitutions. The specification, as excepted and substituted, alleged that the three lieutenants "did on divers occasions . . . conspire . . . to . . . make a false statement, and in order to effect the object of the conspiracy, the said Lieutenant Harris, the said Lieutenant House, and the said Lieutenant Williams each made a false statement to NCIS." The Navy JAG threw out the conviction, reasoning:

The summarized record of trial reflects that the government presented evidence of a number of statements that the accused made to NCIS. It is not apparent from a plain reading of the specification as excepted and substituted, or by a review of the summarized record of trial, which statement the military judge concluded was false. Because the findings do not establish which statement provided the basis of the conviction, this specification is not reviewable and the findings cannot be affirmed. See U.S. v. Scheuer [sic], 62 M.J. 100 (C.A.A.F. 2005)(citations omitted).

House, slip op at 5.

This reasoning is flawed for at least two reasons. First, LT House's false statement to NCIS wasn't necessary to his conviction for this offense. Even if that allegation were excepted from the specification, he would still be guilty of the conspiracy due to either LT Harris's or LT Williams's act in furtherance of the conspiracy. So any uncertainty as to what statement of LT House's to NCIS was false would at most justify modifying the specification to omit that particular overt act, not reversing the finding of guilty altogether.

Second, Scheurer is entirely inapposite to consideration of a petition for new trial under Article 73. Scheurer is an application of the Walters/Seider line of cases. That line of cases is arises from limitations that Article 66(c) places on the CCAs' authority to affirm findings of guilty. In fact, Walters expressly noted that its holding "hinge[d] on [Article 66(c)'s] unique statutory function." United States v. Walters, 58 M.J. 391, 395 (C.A.A.F. 2003). It was based on "a critical limitation" to the CCAs' "unique power of review for factual sufficiency" under Article 66(c). Id. CAAF offered this summary of its holding in Walters: AFCCA "could not conduct a factual sufficiency review of Appellant's conviction because the findings of guilty and not guilty do not disclose the conduct upon which each of them was based." Id. at 397 (emphasis added). But LT House's case never qualified for Article 66(c) review because his sentence included neither a dismissal nor a year or more of confinement. (In fact, it didn't include any confinement at all.) Nor is a Judge Advocate General exercising any authority under Article 66(c) when ruling on a petition for new trial; rather, such petitions are governed by Article 73. And Article 73 does not include factual sufficiency review. Walters, Seider, and Scheurer are all, therefore, inapplicable to the House case and the invalidation of the conspiracy conviction under this line of cases is legally erroneous.

Of course, even if I'm right about these problems in the opinion, nothing will change. The Navy JAG's ruling isn't subject to any further review. So LT House will get to keep his satisfying, probably just, but legally erroneous victory.

But what of the next person in LT House's position? Before obtaining his victory from the Navy JAG, LT House had filed a previous petition for new trial that was denied as untimely, had sough reconsideration of that denial, had unsuccessfully petitioned NMCCA for extraordinary relief, had filed an unsuccessful writ appeal with CAAF, and had filed an ultimately denied cert petition with the Supreme Court. His counsel then instituted suit in the Court of Federal Claims, at which point the Navy JAG agreed to take another look at his case. Can we count on all factually innocent servicemembers who receive subjurisdictional sentences to have the knowledge, patience, and financial resources that LT House required to ultimately prevail in his case?

And what if the next time a factually innocent servicemember with a subjurisdictional sentence files an out-of-time petition for new trial with a Judge Advocate General due to misconduct at the Army Crime Lab, the Judge Advocate General applies Bowles v. Russell and rejects the petition as untimely?

Rather than requiring a Judge Advocate General to bend the law to produce a just result, we should provide a right of appeal for any servicemember who is found guilty by a GCM or SPCM despite having pleaded not guilty, regardless of the severity of the resulting sentence. If LT House had had such a right to appeal, then a clear framework would have existed to deal with the revelation of the Army Crime Lab examiner's misconduct and the subsequent exculpatory DNA retesting results.

Let's hypothesize that LT House had lost his initial appeal and CAAF had denied review before Mr. Mills's misconduct came to light. What then? United States v. Denedo provides the answer. If his case had once been within NMCCA's jurisdiction, then LT House could return to that court with the new information to seek a writ of error coram nobis. Such an instance would demonstrate the importance of allowing the military justice system's courts to protect their own integrity far more compellingly than did the facts of Denedo itself. As the Denedo majority observed:

The military justice system relies upon courts that must take all appropriate means, consistent with their statutory jurisdiction, to ensure the neutrality and integrity of their judgments. . . . [T]he jurisdiction and the responsibility of military courts to reexamine judgments in rare cases where a fundamental flaw is alleged and other judicial processes for correction are unavailable are consistent with the powers Congress has granted those courts under Article I and with the system Congress has designed.

The House case, where the accused was convicted due to false scientific evidence foisted into the military justice system by the U.S. government's own unscrupulous employee, truly involves a threat to the system's integrity.

The House case also demonstrates the callousness of the dissent's "You're in the Army now" quip. Chief Justice Roberts wrote for the four dissenting justices, "To be sure, the limited nature of relief available under Article 73 might lead one to question whether that is truly the only postconviction relief the UCMJ permits. 'You're in the Army now' is a sufficient answer to such concerns; the relief available looks positively extravagant in light of the prior history and tradition of military justice." But when LT House first enlisted in the Navy and later accepted a commission, he shouldn't have sacrificed his right to be free from the lifetime stigmatization of a factually erroneous federal conviction resulting from a U.S. government employee's falsified DNA report. Yet that might very well be the result in a subjurisdictional case such as LT House's were Article 73 to be applied consistently with Bowles v. Russell.

But those in LT House's position can have their right to be free from factually erroneous convictions protected by adding them to the class of servicemembers who may appeal their cases to the Courts of Criminal Appeals. The House case amply demonstrates the dangers of excluding such cases from appellate review.

Thinking about the Wilson remedy

2009-06-19T21:43:00.006-04:00

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

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

"[T]he remedy for a Walters violation is to set aside the finding of guilty to the affected specification and dismiss it with prejudice." Scheurer, 62 M.J. at 112. Accordingly, we set aside the finding of guilty as to Specification 2 of Charge II and dismiss that specification with prejudice.

United States v. Wilson, __ M.J. ___, No. 09-0010, slip op. at 16 (C.A.A.F. June 18, 2009).

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

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

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

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

62 M.J. at 112.

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

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

New CA Mulls Over Chessani Case

2009-06-19T14:45:00.004-04:00

As the North County Times reports, here, the Commandant of the Marine Corps has assigned Lt. Gen. George Flynn, Deputy Commandant for Combat Development and Integration, HQMC and Commanding General of the Marine Corps Combat Development Command as the new CA in the LtCol Chessani court martial. We'll let you know if charges follow. Our prior posts on the Chessani case are too numerous to list, start here.

h/t to Thomas Moore Law Center website, here.

Two new CAAF decisions -- and a question

2009-06-18T21:55:00.006-04:00

For some reason my computer is refusing to access CAAF's web site. Phil Cave was kind enough to send me two opinions that CAAF issued today.

The first is United States v. Marshall, __ M.J. ___, No. 08-0779/AR (C.A.A.F. June 18, 2009). Judge Stucky wrote the opinion of the court. Judge Ryan concurred in the result. I understand that the Marshall opinion is available here.

The issue in Marshall was whether the military judge could properly convict the accused by exceptions and substitutions of escaping from a different person than was alleged in the spec to which the accused pleaded not guilty. No, rules CAAF.

After being apprehended by local authorities and then turned over to military custody, PVT Marshall walked away while he was on an outside smoke break (!) during his pretrial confinement processing.

The spec alleged that the accused escaped from the custody of CPT Kreitman. The evidence showed that CPT Kreitman didn't personally take PVT Marshall into his custody, but rather ordered one of his subordinates to take custody of PVT Marshall from civilian law enforcement authorities. The defense moved for a finding of not guilty under R.C.M. 917, but the military judge denied the motion. The military judge later convicted PVT Marshall by exceptions and substitutions of escaping from the subordinate's custody.

The majority initially rejected the argument that the issue was forfeited, relying on the defense's motion for finding of not guilty and ruling that the defense didn't need to reiterate its same arguments once the military judge found PVT Marshall guilty by exceptions and substitutions.

CAAF rejected the government's argument that the substitution of the subordinate for CPT Kreitman was a minor variance. CAAF concluded that "the substitution was material." The court explained, "The military judge convicted Appellant by exceptions and substitutions of an offense that was substantially different from that described in the specification upon which he was arraigned." The court continued, "Although the nature of the offense remained the same -- escape from custody -- by substituting SSG Fleming for CPT Kreitman as the custodian from whom Appellant escaped, the military judge changed the identity of the offense against which the accused had to defend. This denied him the opportunity to defend against the charge." Id., slip op. at 8 (internal quotation marks omitted). The court also found that PVT Marshall was prejudiced by this variance, observing that his trial strategy focused on showing that he was never in CPT Kreitman's custody.

CAAF set aside the finding of guilty to escape from custody and dismissed the charge. The court also remanded the case to ACCA for reassessment of the sentence.

Judge Ryan concurred in the result. She disagreed with the majority that the motion for finding of not guilty preserved the variance issue. She concluded that the issue was forfeited by the defense's failure to object on variance grounds, absent plain error. Finding plain error, she agreed with the majority's disposition of the case.

CAAF's other decision today was United States v. Wilson, __ M.J. ___, No. 09-0010/AR (C.A.A.F. June 18, 2009). I understand that a copy of Wilson is available here. Chief Judge Effron wrote for the majority. Judge Stucky dissented.

SSG Wilson was charged with raping his stepdaughter on divers occasions. The military judge found him guilty of rape, but excepted the "on divers occasions" language. CAAF observes that by "so doing, the military judge convicted Appellant of a single rape, while acquitting Appellant of multiple incidents of rape." Id., slip op. at 3. After a detailed recitation of the facts, CAAF added, "The military judge found Appellant guilty of Specification 2 of Charge II, excepting the words 'on divers occasions.' The military judge did not indicate on the record or through substitutions to the specification the rape incident of which she was convicting Appellant. Neither party asked for clarification as to which alleged rape incident formed the basis of the conviction." Id., slip op. at 9.

ACCA affirmed, explaining in a footnote that is was sure it could identify the incident for which the military judge convicted SSG Wilson of rape: "The victim in this case unequivocally testified that she was raped on only one occasion, and the parties accordingly shaped their closing arguments to address the only assertion of rape described by the victim. Thus, we find no ambiguity in the finding at issue." Id., slip op. at 10 (quoting unpublished ACCA opinion).

CAAF explained that during the government's case in chief, it presented evidence of two rapes. CAAF repeated its by-now familiar holding from United States v. Walters, 58 M.J. 391 (C.A.A.F. 2003), that where a divers occasions spec is changed through exceptions and substitutions to a single occasion finding of guilty, that "[i]f there is no indication on the record which of the alleged incidents forms the basis of the conviction, then the findings of guilt are ambiguous and the Court of Criminal Appeals cannot perform a factual sufficiency review." Id., slip op. at 12. In this case, "[b]ecause evidence of multiple incidents of rape was presented at trial, the military judge was required to indicate the single incident for which she convicted Appellant." Id., slip op. at 13. CAAF explained, "Here, the record does not contain either substituted language or a statement on the record that would identify whether the military judge convicted Appellant of rape for the bathroom incident or the bedroom incident. Without such clarification, the findings of the present case are fatally ambiguous." Id., slip op. at 13-14.

CAAF remedied the error by setting aside the finding of guilty to rape and dismissing the specification with prejudice and setting aside the sentence. CAAF authorized a rehearing on the sentence.

Judge Stucky dissented, concluding that ACCA properly affirmed the finding of guilty. He reasoned that the evidence would have permitted the military judge to conclude beyond a reasonable doubt that SSG Wilson raped his stepdaughter on only one particular occasion. That occasion must, therefore, be the basis for the finding of guilty and ACCA's affirmance.

The outcome in this case seems like an enormous windfall to SSG Wilson. There may be a very good answer to this question, but here's what I don't get. Rather than setting aside the conviction and dismissing the rape specification, why isn't the right remedy to remand the case to the military judge to clarify what incident was the basis of the conviction, thereby permitting further review by ACCA?

Judge Rogers grants Gray's habeas counsel more time

2009-06-18T17:10:00.002-04:00

Judge Rogers issued this order today extending Ronald Gray's habeas counsel's deadline for filing their traverse until 30 September 2009. Gray v. Gray, No. 08-3289-RDR (D. Kan. June 18, 2009) (order). Judge Rogers explained: "Under circumstances which include novel habeas challenges to the imposition of a death sentence in a military proceeding, and the court's recent appointment of attorneys providing substantive legal assistance to petitioner, the court finds the 120 day extension granted herein does not constitute unwarranted delay in the court’s resolution of this capital habeas action." Id., slip op. at 1-2.

E Street Bland?

2009-06-17T23:56:00.004-04:00

Today's Washington Post includes this architecture review of CAAF's newly renovated neighbor, the Old City Hall and new D.C. Court of Appeals courthouse. CAAF's courthouse is alluded to a couple of times in the article. Writing about a newly added square glass box on the D.C. Court of Appeals' building's E Street side -- the same side as CAAF's entrance -- Phillip Kennicott writes, "It repositions the entrance of the building from the south to the north side, where the courthouse is elegantly flanked by two lesser and later court buildings." The article also describes the building's appearance from the south: "the relatively modest [D.C. Court of Appeals] building surmounted by the massive roof of the National Building Museum . . . looks like a little Acropolis, a striking contrast to the denatured and bland civic architecture that surrounds it." Presumably Mr. Kennicott was including CAAF's courthouse -- which sits on the D.C. Court of Appeals' west side -- as one of the contrasting buildings.

Cox Commission II hearing

2009-06-17T22:12:00.009-04:00

The link to the Cox Commission II hearing webcast seems to have died. Perhaps NIMJ will be able to restore the link or post the video to a permanent site. In the meantime, here's a quick report about yesterday's proceedings.

Five of the commission members were present: Judge Cox, Judge Wilkins, Professor Saltzburg, RADM Guter, and MG Nash. Both of the commission's reporters -- Professors Beth Hillman and Vic Hansen -- were also there.

Judge Cox began the proceedings in the most appropriate way possible -- observing a moment of silence to remember Judge Everett and Kevin Barry. After Judge Cox's introductory remarks, Phil Cave -- speaking on behalf of the Bar Association of the District of Columbia -- made the first presentation to the commission. Phil recommended augmenting the resources available to the defense in court-martial cases and a more open rulemaking process for the military justice system.

The next presentation was by Tom Sullivan -- a partner at Jenner & Block and the former U.S. Attorney for the Northern District of Illinois. Mr. Sullivan is the nation's leading expert on recording stationhouse interrogations. He spoke in favor of adopting a requirement that federal law enforcement agencies -- including the military's -- record stationhouse interrogations in serious felony cases. I was pleased to hear that he doesn't recommend an exclusionary rule in the event that such a requirement is violated. Rather, he supports an instruction advising the jury/panel that the interrogation wasn't recorded and that such a recording would have been a more accurate way to present any resulting admissions. Phil Cave has posted links to a report and an article by Mr. Sullivan here. Mr. Sullivan's 2008 American Criminal Law Review article called Recording Federal Custodial Interviews is available here. For me, Mr. Sullivan's presentation was the highlight of the day.

My presentation followed Mr. Sullivan's. I used the Navy JAG's recent reversal of the United States v. House court-martial conviction as a vehicle for exploring needed reforms in the military justice system. I recommended greater equality in the parties' access to subpoenas and litigation resources. I also advocated allowing any servicemember convicted of a contested charge or specification by a general or special court-martial to appeal that conviction to the appropriate CCA. And I advocated adoption of the JO'Cian proposal to allow waiver of appellate review as a negotiated pretrial agreement provision, which JO'C advanced in this law review article. John F. O’Connor, Foolish Consistencies and the Appellate Review of Courts-Martial, 41 Akron L. Rev. 175 (2008). And here are links to my written proposals concerning: (1) equalization of access to subpoenas; (2) appellate review of contested subjurisdictional cases; (3) waiver of appellate review as a negotiated pretrial agreement term; and (4) allowing an accused in a military capital court-martial to plead guilty.

A representative of SLDN then spoke, followed by two spokespeople for a veterans' group. Judge Cox then invited Theodore Essex to address the commission. Mr. Essex was the lead author of an article quite critical of the first Cox Commission report. Lieutenant Colonel Theodore Essex and Major Leslea Pickle, A Reply to the Cox Commission on the 50th Anniversary of the Uniform Code of Military Justice, 52 A.F.L. Rev 233 (2002). In his presentation, Mr. Essex advocated farming general officer misconduct cases out to DOJ and raised concerns about the waiver-of-appellate-review-as-a-negotiated-pretrial-agreement-term proposal. CAAFlog contributor Cully Stimson of the Heritage Foundation then spoke, discussing innovations from state criminal justice systems that the military may want to emulate, such as a no drop policy for domestic abuse cases instituted by the San Diego D.A.'s office and a child homicide statute that omits any malice element, such as California Penal Code § 273ab, which provides: "Any person who, having the care or custody of a child who is under eight years of age, assaults the child by means of force that to a reasonable person would be likely to produce great bodily injury, resulting in the child's death, shall be punished by imprisonment in the state prison for 25 years to life."

The hearing ended with reports from the commission's two reporters. Professor Vic Hansen spoke first. He cautioned that changes in one area of the military justice system could knock down dominoes that would affect other areas. He noted that some proposed reforms implicated larger philosophical issues about the role of the military judge and the role of the convening authority. He raised the issue of the extent to which staff judge advocates should supervise the prosecution function. And he questioned whether summary courts-martial should be retained or abolished.

Professor Beth Hillman closed out the hearing. Her elegant weaving of themes from the hearing and recent military justice developments would be the envy of even the Hunt of the Unicorn tapestries' creators. She noted recurring questions concerning the extent of the right of appeal within the military justice system and the powers of the system's courts. Themes of unnecessary or unwise diversions of appellate resources and equality influence whether reform is appropriate. She noted questions concerning whether military appellate courts should specify issues not raised by counsel. She also raised the issue of whether the DuBay hearing mechanism should be codified.

The entire hearing lasted only about 3-1/2 hours. For a military justice wonk, it was time well spent.

Literary reviews of CAAF's Weston opinion

2009-06-17T21:27:00.003-04:00

I remain delighted by the writing in Judge Stucky's opinion for the court in United States v. Weston, __ M.J. ___, No. 08-0594/MC (C.A.A.F. June 11, 2009). The opinion begins:

There was something odd about the electric razor in the bathroom. Staff Sergeant (SSgt) ME, a female Marine court reporter, noticed it sitting on the wall locker shelf in the bathroom she shared with Appellant, the senior court reporter, whom she knew to be experienced with computers and surveillance equipment. SSgt ME typically changed clothes in the bathroom and for the past year had felt that she was being watched, a feeling that she attributed to paranoia. But this time the circumstances were simply too odd and her suspicions too strong. SSgt ME took the razor with her when she left work that day. Her attempt to open the razor’s casing ended at Sears with a "Torque" T7 screwdriver. Inside the razor she found a camera.

Judge Stucky's prose has now drawn notice from beyond military justice wonkdom.

Law.Com Legal Blog Watch has posted a piece here called "Cloak-and-Dagger Justice" about the Weston opinion, accompanied by a photo of Humphrey Bogart. The post links to this Suits & Sentences post called "Judicial noir" that also comments on Weston (and offers amusing rewrites of Marbury v. Madison, Lochner v. New York, and Bush v. Gore).

h/t Phil Cave's Court-Martial Trial Practice blog

SG waives response in Stephens

2009-06-17T21:16:00.002-04:00

The Solicitor General has waived the United States' right to respond to the cert petition in Stephens v. United States, No. 08-1514. [DISCLAIMER: I'm petitioner's counsel of record in the case.]

New published NMCCA opinion upholding conviction under Article 134 clauses (1) and (2) as alternative to Article 134 clause (3)

2009-06-17T17:07:00.005-04:00

NMCCA issued a published opinion today revisiting the vexsome question of the proper relationship between Article 134 clauses (1) and (2) and Article 134 clause (3). United States v. Purdy, __ M.J. ___, No. NMCCA 200700659 (N-M. Ct. Crim. App. June 17, 2009). The opinion isn't yet on NMCCA's web site, so I've posted a copy here. Senior Judge Geiser wrote the opinion of the court, in which Judge Kelly and Senior Judge Couch joined. Senior Judge Couch also wrote a separate concurring opinion.

The opinion is sketchy on the precise fact pattern giving rise to the clauses (1) and (2) versus clause (3) issue. But here's what I think happened, piecing together the pieces of the puzzle that the opinion provides and guessing at the rest. Petty Officer Purdy was charged with receiving and possessing child pornography under Article 134 clause (3) for violating 18 U.S.C. § 2252A. The accused pleaded not guilty to the specification as worded, but guilty to an LIO of violating Article 134 clauses (1) and (2). The military judge conducted the providence inquiry on that basis and ultimately accepted Petty Officer Purdy's plea and found him guilty on that basis. (If anyone is familiar with the record in this case, can you please confirm or correct that assumption about the facts?)

The court notes that the case was tried before CAAF decided United States v. Medina, 66 M.J. 21 (C.A.A.F. 2008). The court continues, "Having considered Medina's refinement of Article 134, UCMJ, as applied to child pornography offenses under 18 U.S.C. § 2252A, we find the appellant's argument that his plea was improvident unpersuasive." Id. NMCCA observes that in Sapp, CAAF held that "clauses 1 and 2 are not necessarily lesser included offenses of offenses alleged under clause 3, although they may be, depending on the drafting of the specification." Id., slip op. at 4 (quoting Medina, 66 M.J. at 26). NMCCA observes that Medina, while preferring a "rigid 'elements test' over the 'implicit connection' referenced in" United States v. Sapp, 53 M.J. 90 (C.A.A.F. 2000), nevertheless "seemingly left the door open for the possibility of clauses 1 or 2 to serve as lesser included offenses of clause 3 under unspecified circumstances." Id., slip op. at 4 (footnote omitted).

But in Purdy, NMCCA sidesteps the question of "whether the appellant's conduct and the wording of the specification constitute a lesser-included offense under the facts and circumstances of this case." Id. NMCCA opines that the "gravamen of Medina is the protection of the appellant's right to a knowing and voluntary plea. Even assuming, arguendo, that the offense to which the appellant pled guilty was erroneously referred to as a lesser included offense, the ultimate issue under Medina is whether the appellant had fair notice he was pleading guilty to a distinct theory of liability as compared to that which appeared on the charge sheet." Id. NMCCA holds that in this case, the accused had such fair notice.

NMCCA observes that under Medina, "it is important for the accused to know whether he or she is pleading only to a crime or offense not capital under clause 3, a 'disorder or neglect' under clause 1, conduct proscribed under clause 2, or all three." Id., slip op. at 5 (quoting Medina, 66 M.J. at 26). NMCCA continues, "This can be accomplished either on the charge sheet or through the military judge during the plea inquiry." Id. (citing Medina, 66 M.J. at 27).

NMCCA then holds that in this case, "we are satisfied that the appellant's plea to clauses 1 and 2, as distinct from the charged clause 3 offense, was knowing and voluntary." Id. NMCCA observes that "the appellant voluntarily entered into a stipulation of fact in which he admitted that his conduct was both prejudicial to good order and discipline and service discrediting." Id. "Second, the appellant entered into a pretrial agreement in which he agreed to plead not guilty to the charged clause 3 offense, but instead plead guilty to offenses under clauses 1 and 2 of Article 134, UCMJ." Id. "Third, in expressly indicating that the appellant was pleading guilty to an offense other than that which appeared on the charge sheet, the military judge sufficiently explained the different theories of liability under each clause to include the fact that clauses 1 and 2 carry the additional elements of prejudice to good order and discipline and conduct of a nature to bring discredit to the service." Id.

NMCCA concludes that the "persistent references" in the record "to clauses 1 and 2 as 'lesser included offenses' of the charged clause 3 specification" do not "constitute a substantial basis in law or fact for questioning the guilty plea." Id., slip op. at 5-6.

While concurring in the majority opinion, Senior Judge Couch wrote separately to emphasize that a violation of clauses (1) and (2) of Article 134 shouldn't be considered an LIO of a violation of Article 134 clause 3 because clauses (1) and (2) each contains an element that isn't present in clause (3).

BREAKING NEWS: Supremes call for response in Rodriguez v. United States

2009-06-16T17:27:00.001-04:00

The Supremes have called for a response from the SG to the cert petition in Rodriguez v. United States, No. 08-1465. (Yes, that Rodriguez.)

Military judge orders reporter to appear as defense witness

2009-06-16T17:17:00.004-04:00

Here's a link to a fascinating article about a court-martial case involving a Marine's prosecution for violating an order not to speak with a reporter. The military judge in the case has ruled that a reporter must appear as a defense witness in the case, holding that the reporter isn't protected from testifying by a qualified newsgatherer's privilege. The military judge ruled that he didn't need to decide whether such a privilege applied in the military justice system because it would be overcome in this case even if it did.

h/t Phil Cave's Court-Martial Trial Practice blog

Gene Fidell's analysis of H.R. 569

2009-06-16T17:15:00.001-04:00

Here's a link to Gene Fidell's testimony for the House Judiciary Committee's Subcommittee on Courts and Competition Policy on H.R. 569, the Equal Justice for Our Military Act.

CAAF speedy trial grant

2009-06-15T17:12:00.005-04:00

CAAF has granted review of a speedy trial issue: "WHETHER THE ARMY COURT ERRED WHEN IT RULED THAT APPELLANT'S RIGHT TO A SPEEDY TRIAL UNDER ARTICLE 10, UCMJ, WAS NOT VIOLATED." United States v. Thompson, __ M.J. ___, No. 09-0145/AR (C.A.A.F. June 11, 2009). An unpublished ACCA decision granting an Article 62 appeal in the case is available here. United States v. Thompson, No. ARMY MISC. 20060901 (A. Ct. Crim. App. Nov. 30, 2006). I assume there's a more recent ACCA opinion in the case, but I can't find it online.

CAAF Abu Ghraib grant

2009-06-15T17:05:00.003-04:00

We recently noted that ACCA will be holding oral argument next month in United States v. Lynndie England. Now we learn that CAAF will also be scrutinizing the legal fallout from Abu Ghraib. CAAF has granted review in United States v. Harman, __ M.J. ___, No. 08-0804/AR (C.A.A.F. June 11, 2009), where the granted issue is "WHETHER THE EVIDENCE IS LEGALLY SUFFICIENT TO SUSTAIN THE FINDINGS OF GUILTY BEYOND A REASONABLE DOUBT." ACCA's decision in the case, which we discussed here, is published at 66 M.J. 710.

No winner in our Denedo contest

2009-06-14T23:53:00.003-04:00

At the end of last year, we announced a CAAFlog contest to predict which justice would write the Court's Denedo opinion. Amazingly, even though there were 12 entries in the contest, none predicted Justice Kennedy.

This week in military justice -- Cox Commission II edition

2009-06-14T12:28:00.003-04:00

This week at the Supreme Court: The Supreme Court has nothing military justice related on its plate until next week's conference, for which the Rodriguez cert petition, No. 08-1465, has been distributed. We'll be monitoring Rodriguez to see if there's a call for a response from the SG.

This week at CAAF: CAAF has no oral arguments scheduled this week. Judge Everett's funersal service will be held on Tuesday and a visitation is scheduled for Monday evening, both in Durham. In lieu of flowers, donations may be sent to the First Presbyterian Church, 305 East Main Street, Durham, NC 27701, for the Robert Daye Habitat for Humanity House.

This week at the CCAs: The Coast Guard Court of Criminal Appeals will hold oral argument on Wednesday in United States v. Usry. The assignment of error being argued is: "The military judge erred by failing to order further inquiry into Appellant's competency to stand trial." I understand that the issue involves whether a second 706 board was required due to the accused's actions on the day of trial.

This week in military justice events: The second Cox Commission will hold a public hearing at 0900 on Tuesday, 16 June in the GWU law school's moot courtroom.

Air Force military justice scholarship galore

2009-06-13T23:04:00.004-04:00

New issues of both the Air Force Law Review and the Reporter have been published and both feature military justice content.

The first 2009 issue of the Air Force Law Review is available here. The lead article is a piece by Col Mark L. Allred, the Chief Trial Judge of the Air Force Pacific Judiciary Region, about depositions, VTC testimony, and even VTC videotaped depositions, using the court-martial case of United States v. Savard to explore these concepts. [DISCLAIMER: I'm the appellate defense counsel in the Savard case.] Col Mark L. Allred, Depositions and a Case Called Savard, 63 A.F. L. Rev. 1 (2009).

The second article is Maj Christopher Morgan's treatise on multiplicity and unreasonable multiplication of charges. Maj Christopher S. Morgan, Multiplicity: Reconciling the Manual for Courts-Martial, 63 A.F. L. Rev. 23 (2009). Maj Morgan is a professor in the Air Force Academy's Department of Law. I haven't been able to convince myself to spend part of my weekend reading a 50-page article on multiplicity. I'll plow through it next week and note anything significant that I find.

The Spring 2009 issue of the Reporter, available here, includes Maj Brian Thompson's argument against eliminating the members sentencing option. Maj Brian M. Thompson, Judge-Only Sentencing: Judicial Power Grab?, Reporter, Spring 2009, at 12.

The issue also includes a "Military Justice Pointer," noting that neither the DOD nor Air Force regulations governing sex offender registry have been amended to reflect the revisions to Article 120. Lt Col Eric Mejia, Art 120 and the Sex Offender Registry, Reporter, Spring 2009, at 17. The article notes that "DODI 1325.7 and AFI 51-201 are in the process of being amended." Id.

The issue also includes a case note on the United States v. Murphy court-martial and appeal. Lt Col Beth A. Townsend, Military Rule of Evidence 505(i): Defining the "Interests of Justice," Reporter, Spring 2009, at 19. The article is accompanying by a sidebar reporting the results of the Murphy trial. Id. at 21. [DISCLAIMER: I was an appellate defense counsel in the Murphy case.]

The issue also includes a piece by the Air Force's Chief Appellate Government Counsel using NMCCA's unpublished decision in United States v. Wilson, No. NMCCA 200102056 (N-M. Ct. Crim. App. Feb. 7, 2006), as a cautionary tale demonstrating the need for meticulously accurate convening authority's actions. Maj Jeremy S. Weber, Convening Authority Actions: Why It's More Important than Ever to Get Them Right, Reporter, Spring 2009, at 22.

Finally, whose picture is that on page 34 of the Reporter?

A quick follow-up to Weston

2009-06-12T23:54:00.003-04:00

In the comments to our post about CAAF's Weston opinion, there have been several negative reactions to the notion advanced by Chief Judge Effron's concurrence that the inevitable discovery doctrine can apply based on the existence of probable cause even without a showing that law enforcement agents were actively attempting to obtain a search authorization. Remember that CAAF decided that very issue last term in United States v. Wallace, 66 M.J. 5 (C.A.A.F. 2008). Judge Stucky wrote for the majority, which found that the accused's consent to seize his computer wasn't voluntary. But the majority proceeded to uphold the seizure and subsequent search under the inevitable discovery doctrine even though the record contained no evidence that the OSI agents ever attempted to obtain a search warrant. In a concurrence, Judge Baker disagreed with the majority's approach to inevitable discovery, but voted to uphold the seizure on the basis that consent had been voluntary. In her concurrence, Judge Ryan declined to take a position on inevitable discovery because she agreed with Judge Baker that the accused's consent to seize his computer was voluntary.

My former colleague Vicki Belleau and I filed a cert petition, noting a deep split among the circuits over whether an "active pursuit" requirement exists to uphold a seizure under the inevitable discovery doctrine. Four circuit courts had adopted such a requirement while five (plus CAAF) had rejected it. See generally Eugene L. Shapiro, Active Pursuit, Inevitable Discovery, and the Federal Circuits: The Search for Manageable Limitations Upon an Expansive Doctrine, 39 GONZ. L. REV. 295, 296 (2003/2004). Despite this significant circuit split, the Supremes denied cert. Wallace v. United States, 128 S. Ct. 2943 (2008).

H.R. 569 hearing highlights

2009-06-12T22:12:00.003-04:00

Yesterday's hearing on H.R. 569, the Equal Justice for Our Military Act, was what civics books teach us the legislative process should be like. We were in the House Judiciary Committee's hearing room, a majestic forum with a soaring ceiling, an enormous depiction of an eagle dominating one wall, and an imposing dais separating the subcommittee's members and counsel from the witnesses. But despite the very formal surroundings and the different roles of the various participants, the hearing had the feel of a small group of lawyers reasoning together in search of a just result. The experience called to mind Isaiah 1:18.

During his opening remarks, Chairman Hank Johnson (D-Ga.) noted that no witness for the Administration would appear at the hearing, though a DOD witness had been scheduled to testify before the hearing date was rescheduled. Chairman Johnson observed, "[W]hile I was initially disappointed that the Administration was not able to send a witness, I take it as a sign that the Obama Administration is taking a hard look at the legislation and will ultimately take a different position regarding the legislation than the previous Administration." (DOD had opposed an identical bill during the last Congress.)

During his opening remarks, Ranking Member Howard Coble (R-N.C.) followed up on Chairman Johnson's comments about the absence of any witness to provide the Administration's views: "[I]t's regrettable . . . that while today's hearing marks the first real legislative review of this legislation, the Administration has refused to send a witness to testify, and I think this is a mistake." He then added, in a humorous manner, that "it appears to me that the Administration has chosen to go AWOL on this matter today." Then, not so humorously, Rep. Coble added, "This marks the second time in 90 days that the Administration has been missing in action before this subcommittee, in a hearing where members are reviewing proposals that relate directly to our servicemembers." (I assume that the previous occasion he was referring to was a hearing on H.R. 1478, the Carmelo Rodriguez Military Medical Accountability Act of 2009.) Resuming his jocular tone, he continued that General Altenburg and I "can probably tell us the range of penalties the UCMJ prescribes for failure to report for duty, if you'll pardon my inserting a little humor in this. But unfortunately, the civilian employees of the Office of Management and Budget and the Department of Justice are not subject to the UCMJ's disciplinary provisions." Then again becoming serious, he concluded, "[W]e need to insist that the Administration does, in fact, take seriously its obligation to respond to our requests for information. This is particularly true when matters before this subcommittee and the full committee, for that matter, directly impact the rights of servicemembers, their resources and requirements of our armed services, and the administration of our judicial system."

One of the key issues at the hearing was what the bill was likely to cost. Responding to a question from Chairman Johnson, I expressed the view that under the bill, there wouldn't be a large increase in the number of cert petitions filed by counsel as opposed to those filed pro se. I noted that even if the number of cert petitions filed by counsel doubled under the bill, the increased printing costs would likely be only around $15,000. General Altenburg expressed concern that Congress should scrutinize how the bill would affect the various services' JAG Corps, which are already "stretched quite a bit based on the contingencies that we address around the world, both combat and otherwise."

Responding to another question from the Chairman, General Altenburg and I agreed that, in General Altenburg's words, "a collateral attack is not a substitute for a direct petition to the Supreme Court." But, General Altenburg added, the percentage of cert petitions that actually result in a grant on direct appeal is extremely small.

In response to a question from Ranking Member Coble, General Altenburg emphasized that he didn't think the bill's passage would harm good order and discipline: "I dissociate myself with anyone who has stated that to give this right to soldiers, to military people would, in some way, undermine discipline or undermine authority or lower discipline or harm the military. I don't believe any of those things. . . . It would in no way harm the military. My sole concern is the lawyer resource issue. That's my sole concern, and the fact that we don't really know what it's going to take and how many people are going to take advantage of this."

An interesting exchange between Ranking Member Coble and General Altenburg followed. Rep. Coble asked General Altenburg to respond to what Rep. Coble characterized as the "powerful equitable argument" that "it is inappropriate to deprive members of the U.S. military of the same right to Supreme Court access that their civilian counterparts and even alien unlawful enemy combatants enjoy." General Altenburg, who previously served as the Appointing Authority for the Military Commissions system, responded that it was necessary to provide Supreme Court review of commission cases because the commission system "wasn't done very well in terms of the way it was conceived" and the commission system remains "immature." Supreme Court review in the regular military justice system, on the other hand, was less important becuase "our appellate system in the military is very well developed and has matured over the years."

Ranking Member Coble ended his questions by asking General Altenburg what suggestions he would offer to make a system like that proposed by H.R. 569 work. General Altenburg replied by emphasizing that Congress should "make sure that the services have the resources to do this." He added, "If that issue was addressed, if we were able to discern rather than guess, but to discern this is what the likely costs are in terms of resources, and the Congress were to approve those resources, I don't have an objection. I think it would work."

Chairman Johnson then recognized Rep. Charlie Gonzalez (D-Tex.). Rep. Gonzalez emphasized that under current law, the two parties to a court-martial have disparate access to the Supreme Court. The United States can open the door to the Supreme Court through a certificate of review filed by a Judge Advocate General at CAAF. But in a non-capital case, the accused generally must convince CAAF to exercise its discretionary review authority for the case to become eligible for Supreme Court review. Rep. Gonzalez observed that one of the two parties has "an inferior right . . . as far as seeking Supreme Court review." He continued, "[W}hen it's all said and done, what is available to one party is not available to the other, and I think that's what causes us the discomfort and . . . that's what this act would balance and bring a more just result to the whole process."

And with that, the hearing ended, followed by cordial exchanges between the witnesses and the subcommittee's members and staff.

We probably all feel cynical about our system of government at times. This hearing was a cure for such cynicism. Regardless of whether H.R. 569 or some amended version of the bill ultimately becomes law, the bill's sponsor and a congressional subcommittee devoted a substantial amount of time before during and after the hearing to try to promote justice in a prudent manner. They devoted this time to make sure that our nation's servicemembers are treated fairly. The hearing didn't attract crowds; the expansive seating area was almost empty. But these Members of Congress and their staff members weren't there to showboat; they were there to see whether the law could be improved. Chief Justice Marshall famously wrote that the United States has "a government of laws, and not of men." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803). It was uplifting to see honorable men and women at work drafting those laws.

New CGCCA opinion on failure to pay just debts

2009-06-12T21:28:00.002-04:00

The Coast Guard Court released a divided opinion today dealing with failure to pay just debts. United States v. Lindsey, No. 1295 (C.G. Ct. Crim. App. June 12, 2009). The opinion isn't yet on the court's web site, so I've posted it here. I can't tell for sure, but I assume that it's a published decision.

Writing for herself and Judge Lodge, Chief Judge McClelland holds that to establish the offense of failure to pay just debts, the dishonorable conduct constituting the offense must occur after the debt becomes due and payable. Because the providence inquiry in Petty Officer Lindsey's case didn't establish such dishonorable conduct after his unauthorized government credit card debt became due and payable, the majority set aside the conviction despite the accused's guilty plea.

The majority analyzes the issue through hypothetical scenarios:

A person buys a car on credit, then incurs another debt knowing that current income, expenses and car payment will make it impossible to repay the new debt as scheduled. The debtor's plan is to complain of imaginary defects in the car and stop paying on the car loan for as long as possible without having the car repossessed, then recommence paying on the car loan and stop paying on the new debt, and continue to temporize, not meeting both debt obligations. The debtor implements the plan by falsely complaining about the car, but before the next payment is due, has a change of heart, sells the car and pays off the loan. The false complaint might have supported a charge of dishonorable failure to pay a debt if, in fact, the debtor had failed to make the payment when due and continued the scheme. However, because of the course change, the offense was not committed. Now consider the same hypothetical, but when the debtor sells the car, the proceeds are insufficient to fully repay the car loan, and the debtor does fail to pay the debt in full when due. Surely some further dishonorable conduct is required before the debtor may be found guilty of dishonorable failure to pay a debt.

The majority concluded: "In our view, dishonorableness occurring wholly before the debt is due should not be enough to criminalize nonpayment of a debt." Rather, "unconscionable delay, or some other fact supporting a finding of dishonorableness after payment was due, is essential." While the majority set aside this finding of guilty, it nevertheless affirmed the sentence, reasoning that evidence of the failure to pay just debt would have constituted proper aggravation to the affirmed conviction of violating an order concerning proper use of his government credit card.

Judge Kenney dissented from the portion of the majority's opinion setting aside the dishonorable failure to pay just debts conviction. Contrary to the majority, Judge Kenney concludes "that dishonorable conduct committed solely prior to the debt becoming due and payable can transform subsequent inaction or indifference into conduct fulfilling the elements of the offense." In support of this view, Judge Kenney offers "a slight variation of the hypothetical posed by the majority": "a failure to pay after the debt is due and payable would be dishonorable if the evidence reveals that the accused had no intention of ever paying the debt at the time the obligation was incurred, or prior to the debt becoming due, through deceit, evasion, false promises, or other distinctly culpable circumstances, created a situation that made it impossible for the accused to pay."

CAAF grants

2009-06-12T17:52:00.004-04:00

CAAF granted review of two Air Force cases yesterday. The granted issue in United States v. Ellis, No. 09-0382/AF, is: "Whether the military judge abused his discretion by allowing the government's expert witness to testify concerning Appellant's risk of recidivism." AFCCA's unpublished decision in the case is available here.

The granted issue in United States v. Myers, No. 09-0304/AF, is: "Whether the Air Force Court of Criminal Appeals erred in failing to grant any sentence relief to Appellant when that court found Appellant's due process right to timely post-trial processing was violated by the Government taking an unreasonable 946 days to return the record of trial to that court after remand for new post-trial processing." CAAF ordered that no briefs be filed. AFCCA's unpublished decision in the case is available here.

Judge Robinson O. Everett passes away

2009-06-12T13:32:00.003-04:00

I'm very sad to report that Judge Robinson O. Everett passed away today. He was 81. His biography is available here. Judge Everett was a great man, a great jurist, and a great educator. He made a huge contribution to military justice throughout his long legal career. His service as Chief Judge of the Court of Military Appeals elevated the court's stature immeasurably. He also greatly influenced the development of the UCMJ when he served as a counsel to the Senate Judiciary Committee's Subcommittee on Constitutional Rights under the direction of Senator Sam Ervin. Judge Everett's work with the committee led to the passage of the Military Justice Act of 1968, which created the position of military judge and elevated the status of the Boards of Review to true courts. Probably no one in history has done more to influence the military's judiciary than Judge Everett.

I had the opportunity to meet him when I was a law student and was amazed by how gracious he was and how willing he was to spend time and share insights with a lowly Marine Corps lieutenant/law student. Over the years, I came to see that such graciousness was the hallmark of his interaction with everyone he encountered. His passing creates an unfillable void in the military justice community and in the hearts of all those who knew him.

The mystery of the hearing

2009-06-12T00:15:00.003-04:00

The most intriguing question to arise during the House hearing on H.R. 569, the Equal Justice for Our Military Act, was never answered: what is the Administration's position on the bill? Chairman Hank Johnson (D-Ga. 4) observed that when the hearing was originally scheduled, DOD was sending a witness to testify. But when the hearing was moved to 11 June, no DOD witness was provided. Chairman Johnson expressed his hope that this signaled that the Administration would not oppose the bill, as the Bush Administration did last year. Ranking Member Howard Coble (R-N.C. 6) castigated the Administration for failing to send a witness. He humorously accused the Administration of being AWOL and rhetorically inquired about the penalty for failure to go to one's appointed place of duty. He also mentioned another recent incident in which the Administration had declined to send a witness to take a position on a bill.

A transcript of the hearing should be available on Friday. If so, I'll post the excerpts that deal with this still unsolved mystery.

New CAAF opinion

2009-06-11T20:19:00.005-04:00

United States v. Weston, __ M.J. ___, No. 08-0594/MC (C.A.A.F. June 11, 2009).

Have I mentioned lately that I love reading Judge Stucky's opinions? Here's how Weston starts:

There was something odd about the electric razor in the bathroom. Staff Sergeant (SSgt) ME, a female Marine court reporter, noticed it sitting on the wall locker shelf in the bathroom she shared with Appellant, the senior court reporter, whom she knew to be experienced with computers and surveillance equipment. SSgt ME typically changed clothes in the bathroom and for the past year had felt that she was being watched, a feeling that she attributed to paranoia. But this time the circumstances were simply too odd and her suspicions too strong. SSgt ME took the razor with her when she left work that day. Her attempt to open the razor’s casing ended at Sears with a "Torque" T7 screwdriver. Inside the razor she found a camera.

We granted review in this case to determine two issues. First, whether the search of Appellant's house was reasonable where Appellant objected to the search, but was not physically present when the search was conducted pursuant to his wife's consent. Second, if, as Appellant argues, the search was unreasonable under Georgia v. Randolph, 547 U.S. 103 (2006), whether the inevitable discovery exception would allow admission of the seized evidence. As we find that the search was reasonable under these circumstances, we do not reach the second issue.

Judge Stucky wrote the majority opinion, which was joined by Judges Baker and Ryan. Chief Judge Effron and Judge Erdmann each filed separate opinions concurring in the result.

Judge Stucky's opinion for the court explains that "CID obtained consent from Appellant's wife who possessed common authority over the premises." Id., slip op. at 1-11. "Appellant was a nonconsenting party who shared authority over the premises, but was not present to provide immediate challenge to his wife's consent to search. The 'fine line' drawn by the Supreme Court in Randolph indicates that physical presence and immediate challenge is required for the nonconsenting tenant's objection to nullify the reasonableness of the search. That was not the case here, thus the holding of Randolph does not apply and the search was reasonable." Id., slip op. at 11. The majority also rejects the notion that CID intentionally removed SSG Weston from his house to prevent him from objecting to the search. Id., slip op. at 10.

The majority considers and rejects the Ninth Circuit's approach, which might lead to a different result. See United States v. Murphy, 516 F.3d 1117, 1123-24 (9th Cir. 2008). The majority instead follows the Seventh and Eighth Circuits' approach. So it looks like SSgt Weston will have a pretty strong cert petition asking the Supremes to resolve a split among the circuits. See Weston, slip op. at 10. Surprisingly, it doesn't appear that the Solicitor General sought cert in Murphy. So SCOTUS could use Weston as a proxy to engage in one of the Court's favorite indoor activities -- reversing the Ninth Circuit.

Chief Judge Effron writes that he would resolve the case on inevitable discovery grounds. He catalogs the evidence that law enforcement agents already had when they conducted the consent search and concludes that it would have resulted in a probable cause search authorization had the agents not acted on the basis of SSgt Weston's wife's consent.

Judge Erdmann concludes that SSgt Weston's Fourth Amendment rights were violated when the search of his house was conducted over his objection. But he agrees with Chief Judge Effron that the evidence obtained by the search is nevertheless admissible under the inevitable discovery doctrine. Judge Erdmann reasoned:

If, as the majority holds, physical presence is required to overcome a cotenant's subsequent consent, then a situation where law enforcement officers keep an objecting cotenant from returning to his marital home where he could again voice his objection and do not allow him to communicate that objection to his spouse falls clearly within the Randolph exception.

. . . .

The Supreme Court noted in Randolph that "'it is beyond dispute that the home is entitled to special protection as the center of the private lives of our people.'" Randolph, 547 U.S. at 115 (citations omitted). Given that special protection and the fact that Weston was detained by the police while his house was searched, I would find that the actions of law enforcement violated Weston’s Fourth Amendment rights.

Cox Commission public hearing details

2009-06-11T16:02:00.004-04:00

The Cox Commission will hold its public hearing next Tuesday, 16 June, starting at 0900. The location is the GWU Law moot courtroom. I understand that the hearing will be webcast here.

Today's House hearing on H.R. 569

2009-06-11T14:59:00.003-04:00

The House Judiciary Committee's Subcommittee on Courts and Competition Policy held a hearing today on H.R. 569, the Equal Justice for Our Military Act. The witnesses were the bill's sponsor, Rep. Susan Davis (D-Cal. 53), Major General John D. Altenburg, Jr., USA (Ret.), and me. The hearing lasted about an hour and featured statements and questions by Chairman Hank Johnson (D-Ga. 4), Ranking Member (and former Coast Guardsman) Howard Coble (R-N.C. 6), and Rep. (and former Air National Guardsman) Charlie Gonzalez (D-Tex. 20). I found the hearing to be an extremely thoughtful (and, I hope, valuable) exchange of ideas.

I'll try to post some additional thoughts about the hearing tonight. But for the moment, I want to provide links to the three witnesses' written testimony, which doesn't appear to be available yet through the House Judiciary Committee's web site. Here is Congresswoman Davis's written testimony. Here is General Altenburg's testimony. And here's mine.

Tomorrow's House hearing on H.R. 569

2009-06-10T18:52:00.004-04:00

The witness list for tomorrow's hearing on the Equal Justice for Our Military Act has shrunk. Here's the new lineup according to the House Judiciary Committee's web site:

Panel I

Hon. Susan Davis
U.S. House of Representatives
53rd District, CA

Panel II

Dwight H. Sullivan
Attorney
Washington, DC

Major General (Ret.) John D. Altenburg, Jr.
Attorney
Washington, DC

There's a link to watch via webcast here.

New military cert petition filed

2009-06-10T18:47:00.003-04:00

The Supremes have docketed a cert petition in Stephens v. United States, No. 08-1514, seeking review of this CAAF opinion. 67 M.J. 233. The QP is: "May a criminal defendant be sentenced more harshly due to the emotional stress that his accuser experienced as a result of the defendant exercising his constitutional rights to plead not guilty and to confront his accuser?" The full cert petition is available here. [DISCLAIMER: I'm petitioner's counsel of record.]

Rodriguez cert petition distributed for conference this Term

2009-06-10T18:45:00.004-04:00

Yesterday the SCOTUS clerk's office distributed the cert petition in Rodriguez v. United States, No. 08-1465 (yes, that Rodriguez) for the 25 June conference. Now the watch begins to see if the petition will prompt a call for response from the SG.

SCOTUSblog on Denedo

2009-06-10T18:43:00.000-04:00

Here's a link to SCOTUSblog's short synopsis of Denedo.

CAAF overrules cases treating prejudice to good order and discipline or service discrediting conduct as implicit in every UCMJ punitive article

2009-06-10T17:15:00.006-04:00

United States v. Miller, __ M.J. ___, No. 08-0580/AR (C.A.A.F. June 10, 2009). Judge Ryan writes for a unanimous court. The issue is "whether the Courts of Criminal Appeals, after finding the evidence factually insufficient to support a finding of guilty to a charged violation of an enumerated article of the Uniform Code of Military Justice (UCMJ), may affirm a conviction to a 'simple disorder,' under Article 134, UCMJ, 10 U.S.C. § 934 (2000), as an offense necessarily included in the enumerated articles." Id., slip op. at 2. No, CAAF holds. "Article 134, UCMJ, is not an 'offense necessarily included' under Article 79, UCMJ, of the enumerated articles and may not be affirmed under Article 59, UCMJ." Id.

Miller is a highly significant case. It pulls a number of jurisprudential weeds, overruling the court's previous case law indicating that prejudice to good order and discipline and discredit to the armed forces is an element of every UCMJ offense, thus allowing various Article 134 offenses to be treated as LIOs of enumerated articles.

PVT Miller pleaded not guilty to resisting apprehension, but was nevertheless convicted of the offense. ACCA found that the evidence was factually insufficient to support a finding of guilty to resisting apprehension because he was already in custody when he tried to abscond and when he struck a Korean National Police investigator. ACCA instead affirmed a finding of guilty to a simple disorder, concluding that it could "substitute a lesser-included offense for the disapproved" finding "even if the lesser-included offenses was neither considered nor instructed upon at the trial of the case." ACCA also reasoned that PVT Miller was on notice of the LIO of a simple disorder "because every enumerated offense under the UCMJ is per se prejudicial to good order and discipline or service-discrediting." (quoting United States v. Fuller, 54 M.J. 107, 112 (C.A.A.F. 2000)).

Wrong answer, rules CAAF.

CAAF observes that the test for an LIO is whether the offense's elements are a subset of the greater offense's elements. And CAAF observes that Article 134 contains an element not present in Article 95: that the conduct be prejudicial to good order and discipline or service discrediting. CAAF then announced Miller's significant holding: "To the extent [previous decisions] support the proposition that clauses 1 and 2 of Article 134, UCMJ, are per se included in every enumerated offense, they are overruled." Miller, slip op. at 10.

CAAF then concluded, "Article 134, UCMJ, is not an offense necessarily included in Article 95, UCMJ. Consequently, the CCA was not authorized to affirm a finding of guilt to a simple disorder under Article 134, UCMJ." Id. (footnote omitted).

Finally, CAAF remands the case to ACCA for reassessment of the sentence.

In a term of narrow opinions, Miller stands out for its importance.

Any Respect For Military Justice After Denedo?

2009-06-09T19:37:00.001-04:00

As commenters have noted, CJ Roberts was not kind to the system. But, I much prefer actual metrics. To the scorcards!

If you ask any other corner of the internet other than the posts below this one, military justice is still the Rodney Dangerfield of court systems.

By my informal count, after yesterday's opinion there we're exactly 4 articles about Denedo (in the headline) at any major national, regional, or city media outlet. Last night at 10 PM, there were exactly zero, so that's an improvement.

By my informal count, CAAFlog now has 6 posts headlining Denedo. I guess we are 50% more enlightened.

Potential problems pish-posh: a rebuttal to the Kabul Klipper

2009-06-09T17:22:00.003-04:00

The Kabul Klipper writes below about concerns that yesterday's SCOTUS opinion in United States v. Denedo will clip military appellate courts' wings by limiting their authority to issue pre-appellate extraordinary relief. I disagree with my learned colleague. As the Kabul Klipper himself acknowledges in his post, Denedo looks backwards for jurisdiction because coram nobis is a backward-looking writ. It don't think the opinion speaks to authority to issue writs of mandamus or prohibition; nor do I think military appellate courts will interpret the opinion aas precluding them from doing so.

An appellate court's authority to issue such a writ is typically thought of as existing if a case potentially falls within the appellate court's appellate jurisdiction. See, e.g., FTC v. Dean Foods Co., 384 U.S. 597, 603-04 (1966). Here's how the D.C. Circuit put it in a 2004 opinion: "Once there has been a proceeding of some kind instituted before an agency or court that might lead to an appeal, it makes sense to speak of the matter as being 'within [our] appellate jurisdiction' -- however prospective or potential that jurisdiction might be." In re Tennant, 359 F.3d 523, 529 (D.C. Cir. 2004). The author of those words? Then-Judge Roberts.

Fascinating Navy JAG ruling on petition for new trial [CORRECTED]

2009-06-09T17:09:00.004-04:00

NIMJ's web site has posted a fascinating ruling by Vice Admiral MacDonald granting a petition for new trial in United States v. House. The decision is available here.

LT House was found guilty of conduct unbecoming for engaging in group sex, conspiracy to make a false statement, and false swearing . But his sentence didn't qualify his case for automatic appellate review. It was instead reviewed under Article 69, resulting in the reversal of a false swearing conviction but affirmance of the remaining findings of guilty and the sentence.

More than two years after the CA acted, LT House filed a petition for new trial, which was dismissed as untimely. A reconsideration request was rejected on the same ground. The Court of Federal Claims then returned the case to the Judge Advocate General of the Navy for another look. In this ruling, the Navy JAG holds that the two-year deadline for petitions for new trial is subject to equitable tolling. Because the Navy didn't advise LT House about problems at the USACIL, where evidence in the case was tested and allegedly tied LT House to the rape, in a timely manner, the JAG concludes that applying equitable tolling is appropriate.

Without getting into all of the particulars of the case, at the original trial, evidence was presented that Mr. Mills at USACIL had found LT House's DNA on a condom that also contained the alleged victim's DNA. After USACIL learned of problems with Mr. Mills' work, the condom was retested and LT House was ruled out as a potential source of the DNA evidence. The JAG set aside and dismissed all of the findings of guilty and the sentence.

Army Lawyer alert: International and Operational Law issue published

2009-06-09T17:07:00.001-04:00

The May issue of the Army Lawyer is now available online here. It's the International and Operational Law issue.

Potential problems for potential jurisdiction

2009-06-09T00:29:00.006-04:00

So it's decided. Military courts of appeal have jurisdiction to issue writs of error coram nobis under the All Writs Act. While that may give a spark of hope to appellants (can anyone now be said to be a "former appellant?") hoping to re-relitigate their convictions, I think the reasoning--if not the holding--of Denedo may serve to curtail extraordinary writ practice in military courts, especially those writ petitions that have the most potential to succeed or advance justice in a case.

Successful extraordinary writs are so rare that it's difficult to talk about a "typical" successful extraordinary writ. But if there is such a thing, it probably involves a scenario in which a convening authority or judge has done something (or refused to do something) resulting in prejudice to some fundamental right in a way that can't be easily corrected in the normal course of appellate review. Likely issues that come to mind involve right to counsel issues, some discovery issues (like preventing destruction of evidence) and issues relating to the right to a speedy public trial.

Consider United States v. Schmidt, 60 M.J. 1 (C.A.A.F. 2004), in which the government required an accused to clear through the government those classified matters he wanted to discuss with this counsel. The accused filed an extraordinary writ to permit the accused to discuss these matters with counsel in confidence, the denial of which was vacated by CAAF. But by what authority?

In United States v. King, 53 M.J. 219 (C.A.A.F. 2000) (mem.), Judge Sullivan wrote in his concurring opinion that military appellate courts' writ authority under the All Writs Act included the power "to supervise proceedings and provide relief under the Uniform Code of Military Justice." This supervisory power isn't dependent on an appellate court's jurisdiction over any particular case; neither King nor Schmidt qualified for review under Articles 66 or 67. The accuseds' cases hadn't even been referred yet. But CAAF, according to Judge Sullivan, had the authority to supervise Article 32 proceedings simply because they are, as Judge Sullivan put it, "part of the Uniform Code of Military Justice." Id.

A slightly less expansive view of military appellate courts' jurisdiction was articulated by CMA in United States v. Snyder, 40 C.M.R. 192 (C.M.A. 1969). In Snyder, CMA held that its jurisdiction did not extend to all proceedings under the UCMJ. Where a case had no potential to be reviewed under Article 66 or 67, military courts lacked jurisdiction to issue writs.

The Denedo Court's rationale for permitting extraordinary writs (or at least coram nobis) undercuts both views of when a writ is in aid of a court's jurisdiction. The Court acknowledges that military courts can issue writs, and that the All Writs Act is the source of that authority. The harder question is whether the case--not the writ--is within the court's jurisdiction. In the case of coram nobis, it's pretty easy for the majority lash writ issuing authority to the statutory authority by which the appeals court heard the case in the first instance. Everyone agrees CCA had jurisdiction to hear the case under Article 66; the power to issue the writs in aid of the court's jurisdiction is coextensive with the jurisdiction. And while fixing the power to issue writs so firmly to the fact that a case had once satisfied Article 66 may shore up coram nobis, it erodes the rationale for writs more commonly filed before a case satisfies the jurisdictional requirements of Article 66.

Judge Sullivan's unfettered-supervisor-of-all-UCMJ-proceedings theory of writ authority is clearly inconsistent with Denedo. For that matter, it was probably inconsistent with Goldsmith, too, so maybe I shouldn't rush to declare it dead. But what about cases that fall into an appellate court's potential jurisdiction? Those cases form the bulk of the meaningful writ petitions. The Denedo Court's statement that "to issue respondent a writ of coram nobis on remand, the NMCCA must have had statutory subject-matter jurisdiction over respondent's original judgment of conviction" indicates that potential jurisdiction cases may be by the boards, too. If a CCA must have subject matter jurisdiction over a case without reference to the All Writs Act in order to issue a writ, no case will qualify for a writ until after the convening authority's action.

I can imagine counter arguments: Of course the Court would look retrospectively, not prospectively, at the CCA's jurisdiction in a coram nobis case. The court either had jurisdiction or it didn't. Perhaps if this were a pretrial petition for a writ of mandamus the Court would have found a prospective, rather than a belated extension of CCA's jurisdiction. Some of the logic in Denedo can be found in Snyder. The Snyder court, too, found that writs are issued "in aid of the exercise of our jurisdiction over cases properly before us," and then had no apparent qualms about tacking on the words "or which may come here eventually." [Emphasis in original; Lexis won't give me the page number, sorry.] But over and over again, the Denedo Court returns to the fact that Denedo's case had already cleared the Article 66 wicket as the actual basis for jurisdiction. In short, there is no such thing as extraordinary writ jurisdiction at CCA; only Article 66 jurisdiction, which, when achieved, entails the possibility of writs in aid of that jurisdiction. So if you want your writ petition to have potential, your jurisdiction may have to be actual.

From a policy standpoint (yeah, I know, that's different from a legal standpoint), that's too bad. If I had to pick one writ to jettison to save the others, it would be coram nobis. From what I've seen it is mostly used as a petition for reconsideration way out of time. Mandamus and prohibition, on the other hand, are occasionally used to cure a fundamental problem that threatens to work a substantial injustice. Sometimes they further judicial economy. It's a shame that in going so far to save coram nobis the Court may have gutted the rationale for more useful writs.

Book review of Joshua Kastenberg's Winthrop biography

2009-06-08T22:53:00.002-04:00

We've previously noted the publication of Air Force Lt Col Joshua Kastenberg's biography of Colonel Winthrop. NIMJ has posted this review of the book.

Some initial thoughts about United States v. Denedo

2009-06-08T22:25:00.004-04:00

1. We will now have to start monitoring Thomas and other sources to look for a proposed statutory fix to Denedo. I assume that DOD will propose legislation to clearly preclude military appellate courts from exercising jurisdiction over cases after the later of conclusion of direct appeal or the closing of the two-year window for petitions for new trial.

2. Even if Denedo's effect on military appellate courts' jurisdiction is eliminated by statute, Denedo will continue to have a profound effect on the military justice system. CAAFlog pronounced last year the Year of Jurisdiction because of the frequency with which fundamental jurisdictional issues arose in the military justice system. And we saw that those jurisdictional challenges were almost always resolved in a way that maximized military courts' jurisdiction. I found those opinions frustrating because I viewed military justice jurisdictional issues through the same prism that Chief Justice Roberts employed in analyzing Denedo. I now have to recalibrate my internal jurisdiction meter to account for Denedo with its far broader interpretation of jurisdiction than I believed the law to provide.

3. I wouldn't look for Denedo to spell success for Rodriguez. Denedo treats military justice fora much like the Article III courts. But in the Article III courts, Bowles v. Russell is the controlling law. And that controlling law, if imported into the military justice system, supports Rodriguez. Rodriguez presents a viable challenge only if the military is treated differently. And Denedo hurts rather than helps that cause.

4. As a matter of logic, the Denedo dissent seems to me to have the far better argument. How, then, do we explain the majority opinion carrying the day? (Of course, one way to explain it may be that I'm wrong.) I'm fascinated by one particular sentence in the majority opinion: "On respondent’s account, his attorney--an alcoholic who was not sober during the course of the special court-martial proceeding--erroneously assured him that '"if he agreed to plead guilty at a special-court-martial he would avoid any risk of deportation."'" Denedo, slip op. at 2-3. The drunk attorney seems to have precisely nothing to do with the issue of whether NMCCA has jurisdiction to grant coram nobis relief. Why is this allegation mentioned in the opinion? Note the contrast with Chief Justice Robert's dissent's rejoinder: "You’re in the Army now" (an odd retort not merely because of this case's naval origins, but also because the whole point of this case is that Denedo no longer is in the military). At oral argument, there was considerable discussion of whether Denedo had anywhere else to turn if he couldn't seek coram nobis relief within the military justice system. (Think Richard Gere in Officer and a Gentleman: "I got nowhere else to go; I got nowhere else to go.") Did the majority reach to find jurisdiction out of an equitable urge to provide some safety valve for unjust convictions? Or am I wearing blinders that prevent me from seeing the convincing logical rationale for the majority's position?

SCOTUS's Denedo decision part III -- the dissent

2009-06-08T21:40:00.003-04:00

Chief Justice Roberts wrote for the four dissenting justices. The dissent's central argument is that coram nobis isn't an extension of the original court's jurisdiction even in an Article III context, much less an Article I context.

In the dissent's view, Article 76 is the terminal point of the military appellate courts' jurisdiction, subject only to the possibility of further proceedings under Article 73 if Article 76 finality attaches before two years have elapsed from the convening authority's action.

Coram nobis, in the dissent's view, is unavailable post-finality because military appellate courts no longer have any jurisdiction left to aid.

The dissent mocks the majority for basing its conclusion that coram nobis is an extension of the original court's jurisdiction on a footnote, which the dissent calls "Morgan's hitherto obscure footnote." The dissent argues that Morgan's footnote 4 doesn't actually support the proposition for which the majority cites it. Then, reaching a crescendo, the dissent argues that even if Morgan could support an extension of jurisdiction for coram nobis purposes in an Article III context, no such conclusion is possible in the military justice system's Article I context. "The military justice system," argues the dissent, "is the last place courts should go about finding 'extensions' of jurisdiction beyond that conferred by statute."

The dissent then argues that Articles 73 and 76 clearly forbid military appellate courts from exercising jurisdiction after the later of conclusion of direct appeals or the closing of the two-year petition for new trial window.

While the dissent recognizes that limiting a servicemember to these forms of relief may seem harsh, "'You're in the Army now' is a sufficient answer to such concerns." (I'll just briefly mention that that retort seems out of place in this case based on a former Sailor's petition for extraordinary relief.) Alluding to the history of the military justice system, which didn't even have an appellate court until the 1950s, Chief Justice Roberts also observes that by comparison, the relief available under Article 73 seems "positively extravagant." Concluding his analysis of Articles 73 and 76, Chief Justice Roberts writes, "To the extent the CCAs or the CAAF could be deemed to have some inherent continuing authority to issue writs of coram nobis, Articles 73 and 76 extinguish it."

The dissent then takes up the government's argument that as a practical matter, coram nobis relief is unavailable in the military justice system because the court-martial where the error allegedly occurred no longer exists. The dissent rejects the notion that CAAF and the CCAs can serve as substitute fora for coram nobis relief, reasoning that "those courts are not equipped to handle the kind of factfinding necessary to resolve claims that might be brought on coram nobis." The dissent then takes a swipe at DuBay hearings, referring to "the procedures invented by United States v. DuBay." The dissent then notes that even if concerns with the military justice system's ability to actually provide coram nobis relief don't go to jurisdiction, it may be that the system is incapable of ever actually granting such relief.

SCOTUS's Denedo decision part II

2009-06-08T21:11:00.003-04:00

Blogger ate my earlier Denedo analysis and now I have to recreate it in parts.

The majority proceeded to review and reject two of the government's arguments. The government argued, and the defense agreed, that Article 76 prevents military appellate courts from granting extraordinary relief after direct appeals are complete. Article 76, as quoted by the majority, provides:

The appellate review of records of trial provided by this chapter, the proceedings, findings, and sentences of courts-martial as approved, reviewed, or affirmed as required by this chapter, and all dismissals and discharges carried into execution under sentences by courts-martial following approval, review, or affirmation as required by this chapter, are final and conclusive. Orders publishing the proceedings of courts-martial and all action taken pursuant to those proceedings are binding upon all departments, courts, agencies, and officers of the United States . . . .

The use of ellipses is interesting, because the quotation omits a portion of Article 76 that the dissent uses to devastating effect: "subject only to action upon a petition for new trial as provided in section 873 of this title (article 73) and to action by the Secretary concerned or provided in section 874 of this title (Article 74), and the authority of the President."

The majority characterizes Article 76 as "codifying] the common-law rule that respects the finality of judgments." Denedo, slip op. at 11. The majority reasons, "Just as the rules of finality did not jurisdictionally bar the court in Morgan from examining its earlier judgment, neither does the principle of finality bar the NMCCA from doing so here." Id. Not that my views matter, but to me this is the majority's weakest point. The majority previously indicated that whether a court has authority to allow it to issue extraordinary relief is a question of congressional intent. And here's a statute that seems to be expressing Congress's intent not to do so. The majority escapes the implications of that intent by analogizing the statute to a common law rule. But just as a rule-based deadline can be waived under Bowles v. Russell 551 U. S. 205 (2007), but a statutory deadline cannot, in this context it seems to matter that Denedo concerns a statute-based rule of finality while United States v. Morgan did not. See United States v. Morgan, 346 U.S. 502 (1954). The majority presents Article 76 as a brake on the exercise of coram nobis relief rather than as a jurisdictional bar to such relief post-finality.

The majority then rejects the government's argument that coram nobis is unavailable in the military justice system because at common law, coram nobis is obtained from the court whose judgment is being questioned and in military practice that court -- the court-martial -- no longer exists. The majority quickly dismisses the argument, reasoning that this challenge "speaks to the scope of the writ, not the NMCCA's jurisdiction to issue it. The CAAF rejected the former argument. Only the latter one is before us." Denedo, slip op. at 12.

The majority then emphasized the importance to the military justice system of allowing its courts to correct errors. The Denedo majority called its holding "of central importance for military courts." Id.

SCOTUS's Denedo decision (Pt. I)

2009-06-08T18:22:00.005-04:00

As everyone who reads this blog already knows, the Supreme Court today affirmed the Court of Appeals for the Armed Forces' Denedo decision by a 5-4 vote. Justice Kennedy wrote for the majority. Since Justice Stevens was the senior justice in the majority, he would have assigned the opinion to Justice Kennedy.

The justices agreed 9-0 that the Supreme Court had statutory certiorari jurisdiction to decide the appeal. The central question for that purpose was whether an order from CAAF sending the case back to NMCCA constituted "relief." The Court held that it did. Observing that the statute providing it with cert jurisdiction over CAAF's cases doesn't define the word, "relief," the Court turned to the Black's Law Dictionary definition and concluded that a remand order falls within the term's meaning. United States v. Denedo, __ U.S. __, No. 08–267, slip op. at 4-5 (June 8, 2009).

Having dispensed with the challenge to its own jurisdiction, the majority proceeded to address "whether an Article I military appellate court has jurisdiction to entertain a petition for a writ of error coram nobis to challenge its earlier, and final, decision affirming a criminal conviction." Id., slip op. at 1.

The Court observed that jurisdiction doesn't flow from the All Writs Act; rather, a court's power to issue a writ is "contingent on that court's subject-matter jurisdiction over the case or controversy." Id., slip op. at 7. Whether a court enjoys such subject-matter jurisdiction is within Congress's control.

The Court found that the jurisdiction to provide coram nobis relief is predicated on "the original proceeding during which the error allegedly transpired." Id., slip op. at 8. Because coram nobis relief is a further step in a criminal appeal, "NMCCA's jurisdiction to issue the writ derives from the earlier jurisdiction it exercised to hear and determine the validity of the conviction on direct review." Id., slip op. at 9. The Court concluded that since NMCCA had jurisdiction over the petition for a writ of error coram nobis, so too did CAAF. Id.,, slip op. at 10. The writ appeal presented questions of law that were within CAAF's statutory jurisdiction to decide. Id.

CAAF grant

2009-06-08T17:08:00.003-04:00

While the big news of the day is SCOTUS's Denedo ruling, other courts were at work today as well. CAAF granted review of the following issue: "Whether the military judge reversibly erred when she did not dismiss the charges and specifications after she found that unlawful command influence existed in this case." United States v. Douglas, __ M.J. ___, No. 09-0466/AF (C.A.A.F. June 8, 2009).