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

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

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

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

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

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

Rodriguez trailers: have I missed something?

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

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

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

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

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

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

Rodriguez and computation of time

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

CAAF halts appellate proceedings in Akbar

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.

Fairley and Crotchett Writs

Anyone have any idea what the withdraw of the extraordinary writs in In re Fairley and In re Crotchett was all about? Has anyone seen the Fairley decision by NMCCA?

As we previously reported, both cases arise from rulings by military judges finding Art. 120 unconstitutional, including Code 46 alum LtCol Ray Beal. United States v. Fairley, which also features language addressing Apprendi v. New Jersey, was apparently reversed based on Crockett in a one line opinion [h\t to CS], see reports here, here and here. United States v. Crotchett was decided May 12, see reports here, here, and here.

CAAF assesses petitions' timeliness

We previously looked at CAAF's order from last Wednesday indicating that blown petition deadlines may lead to disciplinary proceedings against appellate defense counsel. United States v. Angell, __ M.J. ___, No. 09-0098/AR (C.A.A.F. May 20, 2009). It turns out that Wednesday's daily journal entries included quite a bit more action on the petition timeliness front.

In seven other cases, arising in various procedural postures, CAAF kicked out-of-time petitions. (United States v. Tuberville, No. 08-0612/AF; United States v. Greenwood, No. 08-0618/AF; United States v. McCarns, No. 08-0653/AR; United States v. Thomas, No. 08-0688/AR; United States v. Mendoza, No. 09-0097/AR; United States v. Valentine, No. 09-0144/AR; United States v. Cox, No. 09-0291/AF).

But in another three cases in which the petition for grant of review was filed more than 60 days after the relevant CCA's opinion, CAAF accepted the petition because the neither the actual service nor constructive service clock had yet expired. In United States v. Espisito, No. 08-0547/NA, CAAF concluded that service on the appellant at the brig where she was no longer confined was insufficient to constitute constructive notice. In United States v. McClory, No. 09-0072/AR, CAAF concluded that mailing ACCA's opinion to the appellant's permanent address wasn't sufficient to constitute constructive service where that wasn't the address that the appellant provided on his appellate rights form. Similarly, in United States v. Sanga, No. 09-0177/AR, CAAF found that mailing ACCA's opinion to an address different than the one on the appellate rights form was insufficient to constitute constructive service.

MUST READING for military appellate defense counsel [REVISED]

Here's a link to an important order that CAAF issued yesterday. United States v. Angell, __ M.J. ___, No. 09-0098/AR (C.A.A.F. May 20, 2009). CAAF indicates that it may initiate disciplinary proceedings against appellate defense counsel who blow their clients' CAAF petition deadlines. In concurring footnotes, Chief Judge Effron and Judge Baker urge the Judge Advocates General to consider certifying cases to CAAF where an appellate defense counsel blows the petition filing deadline.

CAAF grant

I am informally informed that CAAF granted review today on these pretrial punishment issues:

I. Whether, having found knowing violation of AFI 31-205, the military judge erred in not determining that the violation involved an abuse of discretion warranting credit under RCM 305(k)

II. Whether the conditions of Appellant's pretrial confinement in suicide watch which included, inter alia, denial of books, a radio, and/or a CD player, and 24-hour-a-day lighting, were so excessive that they constitute punishment in violation of Art 13, and thus Appellant is entitled to additional sentence credit.

I understand that the case name is United States v. Williams. My best guess is that it's case number 08-0339/AF.

Navy JAG certifies Article 120 constitutionality case to CAAF

On Friday, the Judge Advocate General of the Navy certified a case to CAAF dealing with the constitutionality of the new Article 120 and CAAF ordered an expedited briefing schedule. That expedited schedule makes me think that CAAF may hear oral argument on the case this term.

Here are the six issues specified in United States v. Neal, No. 09-5004/NA:

I. WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED IN FINDING IT HAD JURISDICTION OVER THIS ARTICLE 62, UCMJ, APPEAL, WHERE THE APPEAL WAS TAKEN AFTER THE CASE WAS ADJOURNED AND THE MEMBERS DISMISSED.

II. DESPITE THE LANGUAGE OF ARTICLE 120(r), UCMJ, WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS CORRECTLY HELD THAT THE ARTICLE DOES NOT PROHIBIT THE ACCUSED FROM INTRODUCING EVIDENCE OF CONSENT IN ORDER TO NEGATE AN ELEMENT OF THE OFFENSE.

III. CONCERNING THE AFFIRMATIVE DEFENSE SET FORTH IN ARTICLE 120(t)(16), WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS CORRECTLY HELD THAT CONGRESS CONSTITUTIONALLY ALLOCATED, TO THE ACCUSED, THE BURDEN OF PROVING CONSENT BY A PREPONDERANCE OF THE EVIDENCE.

IV. WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS CORRECTLY HELD THAT "LACK OF CONSENT" IS NOT AN IMPLICIT ELEMENT OF ARTICLE 120 CRIMES, INCLUDING THE CHARGED OFFENSE, GIVEN THE DEFINITION OF "FORCE" IN ARTICLE 120(t)(5), AND THUS ARTICLE 120, UCMJ, DOES NOT UNCONSTITUTIONALLY SHIFT THE BURDEN TO THE ACCUSED TO "DISPROVE AN ELEMENT OF THE OFFENSE."

V. WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS CORRECTLY HELD THAT THE EVIDENCE TRIGGERED THE AFFIRMATIVE DEFENSE OF CONSENT AS DEFINED IN ARTICLE 120(t)(16), UCMJ, DESPITE THE FACT THAT THE APPELLANT FAILED TO ACKNOWLEDGE THE OBJECTIVE ACTS OF THE ALLEGED OFFENSE.

VI. WHETHER THE FINAL TWO SENTENCES OF ARTICLE 120(t)(16), UCMJ, WHICH ALLOWS FOR CONSIDERATION AS TO WHETHER THE GOVERNMENT HAS DISPROVED THE AFFIRMATIVE DEFENSE OF CONSENT BEYOND A REASONABLE DOUBT, AFTER THE ACCUSED HAS PROVED THE DEFENSE BY A PREPONDERANCE OF THE EVIDENCE, CREATE A LEGALLY IMPOSSIBLE BURDEN ALLOCATION.

This is one of the rare cases where a Judge Advocate General certifies issues to CAAF on which the government prevailed at the CCA level. I understand that both the government and the defense sought certification -- a wise move by the government, since it has an obvious interest in obtaining a quick ruling on Article 120's constitutionality, though this case won't resolve every possible constitutional challenge to the new Article 120.

NMCCA's opinion in the case is available at 67 M.J. 675 (N-M. Ct. Crim. App. 2009) (en banc).

ACCA's Anderson decisions

Yesterday we mentioned CAAF's interesting grant of review in United States v. Anderson, No. 08-0344/AR:

WAS APPELLANT AFFORDED A FAIR TRIAL EVEN THOUGH HIS REQUEST FOR A FORENSIC PSYCHIATRIST WAS DENIED AND THE GOVERNMENT THEREAFTER AVAILED ITSELF OF A FORENSIC PSYCHIATRIST AND ATTACKED THE QUALIFICATIONS OF THE VERY EXPERT IT DID MAKE AVAILABLE TO THE DEFENSE?

We have now acquired ACCA's opinion in the case, as well as its order denying reconsideration en banc. Here's a copy of the decision. United States v. Anderson, No. ARMY 20040897 (A. Ct. Crim. App. Jan. 31, 2008). And here's a copy of the order denying reconsideration en banc. United States v. Anderson, No. ARMY 20040897 (A. Ct. Crim. App. Feb. 12, 2008) (order).

Further clarification regarding attempts to have Neal certified

An entry in CAAF's daily journal from yesterday indicates that both Code 45 and Code 46 have asked the Navy JAG to certify United States v. Neal, __ M.J. ___, No. NMCCA 200800746 (N-M. Ct. Crim. App. March 31, 2009) (en banc), to CAAF and both have asked CAAF to extend the time for the Navy JAG to do so. United States v. Neal, __ M.J. ___, No. 09-5004/NA (C.A.A.F. Apr. 30, 2009). CAAF had previously extended the certificate filing period to 15 May. Yesterday the court reiterated that deadline: "The Judge Advocate General may file a certificate for review on any and all issues he deems appropriate in this case on or before May 15, 2009." Id.

CAAF lifts stay in Webb

We previously discussed AFCCA's published opinion in United States v. Webb, __ M.J. __, No. 2009-01 (pet) (A.F. Ct. Crim. App. March 20, 2009), which found that a court-martial had jurisdiction to prosecute Webb even though he had received his DD 214 and final accounting of pay. We also looked at CAAF's order halting the trial. United States v. Webb, __ M.J. ___, No. 09-8020/AF (C.A.A.F. March 20, 2009). Yesterday CAAF denied Webb's writ appeal without prejudice and vacated the stay of proceedings. United States v. Webb, __ M.J. ___, No. 09-8020/AF (C.A.A.F. Apr. 29, 2009) (summary disposition).

CAAF gives Navy JAG until 15 May to certify Neal

CAAF has extended the Judge Advocate General of the Navy's window to certify Neal -- a case concerning the constitutionality of the new Article 120 -- but only until 15 May. United States v. Neal, __ M.J. ___, No. 09-5004/NA (C.A.A.F. Apr. 23, 2009). CAAF's order says it was granting "Appellant's motion for enlargement of time." When we previously asked our commentariate which side sought the enlargement, we were told Appellate Government did it. The United States would be the appellee if Neal were certified. Was this just a typo on CAAF's part or has Appellate Defense also sought an enlargement of VADM MacDonald's window to certify the case?

CAAF adds Aviano oral argument date

CAAF has added an additional oral argument date to its calendar -- 24 June. CAAF will hear oral arguments in the two Aviano cases: United States v. Ashby, No. 08-0770/MC, and United States v. Schweitzer, No. 08-0746/MC. As we've noted, the case will be heard by the Hall of Fame panel of Judges Erdmann and Stucky and Senior Judges Everett, Cox, and Gierke.

Motion to extend time to file certificate of review in Neal

The No Man previously discussed NMCCA's en banc opinion unanimously rejecting a constitutional challenge to the new Article 120. United States v. Neal, __ M.J. ___, No. NMCCA 200800746 (N-M. Ct. Crim. App. March 31, 2009) (en banc).

Today's CAAF daily journal online update included notice of a motion for enlargement of time for the Judge Advocate General of the Navy to file a certificate of review in the case. United States v. Neal, __ M.J. ___, No. 09-5004/NA (C.A.A.F. Apr. 14, 2009). The notice doesn't indicate whether Code 45 or Code 46 filed the enlargement request. Could someone in the know fill in that detail for us?

It's unusual but hardly unprecedented for a Judge Advocate General to certify to CAAF a case that the government won at the CCA level. One of the most famous military justice cases of all time -- United States v. Tempia, 16 C.M.A. 629, 37 C.M.R. 249 (1967) -- was certified to CMA by the Judge Advocate General of the Air Force after the government had prevailed before an Air Force Board of Review. A more recent example is United States v. Rodriguez, 60 M.J. 87 (C.A.A.F. 2004)--the infamous "Latin movie" case--which the Judge Advocate General of the Navy certified to CAAF after the government had prevailed before NMCCA.

There would seem to be a firm rationale for the Judge Advocate General of the Navy to certify this case, to expedite a final determination of the new Article 120's constitutionality. Of course, this case wouldn't resolve every constitutional challenge to Article 120, but more certainty is better than less certainty.

Navy JAG files certificate for review

The Judge Advocate General of the Navy has filed a certificate of review in United States v. Bradley raising these two issues:

I. Whether the lower court erred by finding that the military judge abused his discretion when he denied the defense motion to disqualify trial counsel from further participation in the case.

II. Whether the lower court erred in setting aside the findings and sentence based upon speculation that the trial counsels' continued participation in the case could have prejudiced Appellee, without making any finding that their continued participation did materially prejudice Appellee, as required by Article 59(a), UCMJ.

We previously discussed Bradley here.

The Judge Advocate General of the Air Force certifies two issues in Rose

The Judge Advocate General of the Air Force certified two issues to CAAF today:

I. Whether the Air Force Court of Criminal Appeals erred in denying the United States' request that the court order an affidavit from Appellee's original military defense counsel.

II. Whether an "impression" left by civilian defense counsel that Appellee may not have to register as a sex offender amounted to an affirmative misrepresentation and led to Appellee receiving ineffective assistance of counsel.

AFCCA's opinion in the case is published at 67 M.J. 630. We discussed AFCCA's opinion here and here.

The Judge Advocate General of the Navy doesn't certify Burk

We previously discussed Code 46's successful request for more time for the Judge Advocate General of the Navy to consider whether to certify NMCCA's unpublished decision in United States v. Burk, No. NMCCA 200800146 (N-M. Ct. Crim. App. Feb. 12, 2009) (per curiam). Today's CAAF daily journal update included a notation that the United States had "filed a notice of intent not to certify this case to the Court of Appeals for the Armed Forces." United States v. Burk, __ M.J. ____, No. 09-5001/MC (C.A.A.F. Apr. 1, 2009).

CAAF summarily disposes of case presenting disconnect between court-martial's actual findings and SJAR's & CMO's recitation of findings

On 6 November, CAAF granted review of this issue:

WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED BY AFFIRMING A FINDING OF GUILTY OF COMMUNICATING INDECENT LANGUAGE WHERE THE STAFF JUDGE ADVOCATE'S RECOMMENDATION AND THE COURT-MARTIAL PROMULGATING ORDER STATED THE OFFENSE AS ATTEMPTED COMMUNICATION OF INDECENT LANGUAGE. SEE UNITED STATES v. DIAZ, 40 M.J. 335 (C.M.A. 1994).

United States v. Thomas, 67 M.J. 187 (C.A.A.F. 2008).

Last Tuesday, CAAF summarily disposed of the case, reversing NMCCA's decision in relevant part and remanding the case to NMCCA for reassessment of the sentence. CAAF reasoned: "Under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866(c) (2000), the Court of Criminal Appeals may act only with respect to the findings as approved by the convening authority. Under these circumstances, we conclude that, in affirming a finding of guilty of communicating indecent language, the Court of Criminal Appeals exceeded its authority. See United States v. Diaz, 40 M.J. 335 (C.A.A.F. 1994)." United States v. Thomas, __ M.J. __, No. 08-0738/NA (C.A.A.F. March 31, 2009) (summary disposition).

BREAKING NEWS: CAAF halts Webb court-martial

We previously discussed the Air Force Court's recent Webb opinion. United States v. Webb, __ M.J. __, No. 2009-01 (pet) (A.F. Ct. Crim. App. March 20, 2009). Last week, Webb filed a writ appeal. The case presents a personal jurisdiction challenge to the trial of an airman (former airman?) who received his DD 214 and final accounting of pay before the military brought him back to face trial by court-martial. His command had unsuccessfully attempted to put him on legal hold before he received his discharge. The Air Force Court denied a petition for extraordinary relief challenging jurisdiction.

This afternoon CAAF issued an order halting Webb's court-martial, which was scheduled to start tomorrow, "pending further order of the Court regarding the writ-appeal petition." United States v. Webb, __ M.J. ___, No. 09-8020/AF (C.A.A.F. March 20, 2009).