AFCCA denies recon and recon en banc in Nerad

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


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

Some thoughts about the CCAs' oral argument practice

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.

CCAs' oral argument practice [CORRECTED]

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?

ACCA schedules oral argument on Lynndie England's appeal

On 22 July, ACCA will hear oral argument on the appeal of Lynndie England's court-martial conviction arising from the Abu Ghraib scandal. The two assignments of error to be argued sound extremely interesting:

THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE REJECTED APPELLANT'S GUILTY PLEA, WHICH REJECTION RESULTED IN APPELLANT LOSING HER PRETRIAL AGREEMENT.

APPELLANT'S TRIAL DEFENSE COUNSEL WERE INEFFECTIVE FOR CALLING PVT GRANER AS A PRESENTENCING WITNESS KNOWING THAT HIS TESTIMONY COULD RENDER APPELLANT'S PLEAS IMPROVIDENT.

Wuterich Oral Argument Scheduled

The Navy-Marine Corps Court of Criminal Appeals set oral argument in United States v. Wuterich for June 25 at 0900. For prior posts on the case . . . search for Wuterich above, you'll find a couple. Here is the oral argument calendar for June. Issues up for argument are:

I. WHETHER A “REPORTER’S PRIVILEGE” APPLIES IN MILITARY COURTS-MARTIAL UNDER THE FIRST AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES AND MILITARY RULE OF EVIDENCE 501(a)(1).

II. WHETHER A “REPORTER’S PRIVILEGE” APPLIES IN MILITARY COURTS-MARTIAL UNDER MILITARY RULE OF EVIDENCE 501(a)(4) AS A PRINCIPAL OF COMMON LAW GENERALLY RECOGNIZED IN THE TRIAL OF CRIMINAL CASES IN THE UNITED STATES DISTRICT COURTS PURUSANT [sic] TO RULE 501 OF THE FEDERAL RULES OF EVIDENCE.

III. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN APPLYING A “REPORTER’S PRIVILEGE” UNDER MILITARY RULE OF EVIDENCE 501(a)(4) AS THE BASIS FOR QUASHING A GOVERNMENT SUBPOENA FOR CBS NEWS NONBROADCAST AUDIO-VIDEO “OUTTAKES” OF AN INTERVIEW WITH THE ACCUSED THAT WERE OTHERWISE DISCOVERABLE UNDER RULE FOR COURTS-MARTIAL 703.

Question: Does this warrant some sort of discretionary delay in the SCOTUS case? We'll see, I guess.

H/T to Anon 2 Jun 1059 TWIMJ Commenter.

No Chessani Certification

According to one source, the government may have decided not to go forward with certification of the LtCol Chessani case (the officer charged with failing to move the Haditha investigations). As we reported, here, the time for certification expires Friday, so this is likely a good lead. If you can confirm the report or have other intel on the case, please email us at caaflog@caaflog.com or noman@caaflog.com. No word on what the convening authority will do with the case now.

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.

Chessani watch

If I calculate correctly, the Judge Advocate General of the Navy's deadline for certifying LtCol Chessani's case to CAAF is this Friday. We'll be keeping a lookout for any action in the case. If anyone has any intel, please let us know. (As always, you can reach us at caaflog@caaflog.com.)

NMCCA's unpublished decision is available here. United States v. Chessani, No. NMCCA 200800299 (N-M. Ct. Crim. App. March 17, 2009). We discussed that opinion here. We discussed NMCCA's denial of the government's request for en banc reconsideration here and here.

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).

Carlson Part Deux, NMCCA Rules on USACIL Problems

Here is a link to NMCCA's day old opinion in United States v. Carlson, No. 200102009, __ M.J. __ (N-M. Ct. Crim. App. Apr. 30, 2009). The opinion addresses lab issues in DNA analysis at the U.S. Army Criminal Investigation Laboratory (USACIL). The opinion ultimately finds no prejudice due to the strength of the government's case, but other issues are of interest as well and I will leave those to CAAFlog if he wants to take a run at them. This case involves the same errors, and examiner, as were discussed in United States v. Luke, 63 M.J. 60 (C.A.A.F. 2006), opinion here--see our prior coverage here, here, and here (sort of).

Chessani Denied, Not Much More

Here is a link to the unexciting order denying En Banc reconsideration in Chessani.

For those reading Mary Hall's post below and agreeing with her, you should start a campaign of Judge Ryan for SCOTUS.

Navy Denied En Banc Rehearing in Chessani

Following up on CAAFlog's post, the Navy-Marine Corps Court of Criminal Appeals yesterday did deny the Judge Advocate General's petition for en banc rehearing in the Chessani Art. 62 appeal of Judge Folsom's unlawful command influence ruling. Here is a link to a partial copy of the Court's order, the Thomas Moore Law Center website doesn't have the full copy. If anyone has the full copy, please email it to me at noman@caaflog.com. I am guessing the ruling had something to say about lateral taint vs. appearance of unlawful command influence, as raised in LtCol Chessani's opposition brief, here, courtesy of his counsel the Thomas Moore Law Center. Here is our prior link to the government motion for rehearing.

NMCCA reportedly stamps "denied" on government's motion for en banc rehearing in Chessani

This North County Times report about the Chessani case includes some serious errors. VADM MacDonald, not LtGen Helland, gets to decide whether the government will appeal to CAAF. And he has 30 days to do so, not 60. But presumably the heart of the story is correct -- NMCCA denied the government's request to reconsider its Chessani ruling en banc.

A copy of the Government's recon motion is available here. The No Man's discussion of that motion is available here. NMCCA's unpublished Chessani opinion is available here. Our discussion of that opinion is available here.

Wuterich NMCCA Appeal

Here is the latest Government brief in the US v. Wuterich Saga. This is the G's Art. 62 appeal of the military judge's second ruling, covered here and available . . ., where the judge found a qualified news gatherer privilege and found the evidence otherwise nice to have, but cumulative.

Credit has to go to the government for the brief. After spending a lot of time saying there should be no qualified news gatherer privilege in the miltiary, the brief in 5 and a half concise, Courier New 12 font pages, does a good job arguing that the military judge was wrong on the cumulativeness ruling. The brief rebuts Judge Meeks' conclusion that the outtakes were "not critical," "consistent with other evidence," and just "nice to have," by effectively arguing that they are important to the government and the best evidence of the accused's guilt. I particularly liked the comparison between the accused's 2-page sworn statement and 80 minutes of admission on pages 44-45.

More to follow. Hard to say if this will be another win for the G at NMCCA and loss at CAAF.

Gov't Asks for En Banc NMCCA Reconsideration in Chessani

Navy-Marine Corps Appellate Government asked NMCCA for En Banc reconsideration in United States v. Chessani, the unlawful command influence case involving the court-martial of LtCol Chessani for alleged failings in investigating killings in Haditha in November 2005. Here is a link to the motion. See full CAAFlog coverage of the facts of the case here and here.

Essentially the government motion says, yes, we did provide compelling evidence to rebut the improper flow down of UCI taint--which really isn't a basis for en banc reconsideration. Thus, Appellate Government also argues that because the investigating officer in the Haditha investigation (the source of the UCI taint) and the MARCENT SJA were relative equals in the command structure (though different ranks), that NMCCA has created a new breed of "lateral" taint in UCI cases.

Counsel for LtCol Chessani tells us, "the government doesn't know when it has lost." We'll see if he proves correct.

Rant: How can we justify retaining five military appellate courts in these budgetary times?

Secretary of the Air Force Michael Donley and Air Force Chief of Staff General Norton Schwartz published a remarkable op-ed in today's Washington Post. They extol the virtues of the F-22, which "is, unquestionably, the most capable fighter in our military inventory." They suggest that having more is better, but forthrightly indicate that we can't afford to buy as many as we probably want to have. (For more on the value of the F-22 and why we can't afford it, see this article by Mark Bowden from the March 2009 Atlantic.)

In these budgetary times -- when we are painfully sacrificing our military's teeth -- how can we justify the expense of maintaining five appellate courts that cling to the tip of the military's tail? Consider that at the moment, three of the five military appellate courts (ACCA, AFCCA, and CGCCA) are preparing to move . How many millions of dollars will be devoted to building new facilities for those three courts? How many millions of dollars are spent each year on the four CCAs' operating budgets? Could we find better uses for those millions of defense and homeland security dollars? Of course we can.

This is no time to maintain military entities simply because the wire diagram has included them for decades. I firmly believe that the Court of Appeals for the Armed Forces is capable of providing a one-level review of all military convictions -- just as the United States Court of Appeals for the Fourth Circuit is capable of providing a one-level review for every federal conviction in Maryland, Virginia, West Virginia, North Carolina, and South Carolina, as well as hearing appeals from federal civil cases in those states. Why should a servicemember get two levels of sub-SCOTUS appeals when a civilian gets only one? Is maintaining that two-layer review worth the millions of dollars in operating expenses and the many millions more in capital outlays that DOD and Homeland Security will have to pay in the next few years to move three of the CCAs? Also, a one-stop-shopping system -- in which CAAF would no longer itself hear cases in two stages -- would be far faster than the current system, thus saving still more money by reducing the time period servicemembers spend on appellate leave, with the resulting costs to the government (particularly for health care).

Finally, let's say I'm wrong. Let's say we really do need a two-layer appellate system. Then can't we at least consolidate the four CCAs into one CCA, thereby saving not only about two-thirds of the combined CCAs' operating costs, but also forgoing the need to build facilities for two of the three CCAs that are currently planning moves?

All of the money we would save by eliminating or combining the CCAs probably wouldn't buy one F-22 -- even if we added together all of the savings over 10 years. But I'll bet it would be enough to save some other valuable military program that contributes to DOD's war fighting capabilities.

If we are willing to sacrifice 60 of the "most capable fighter[s] in our military inventory" because they cost too much, it's time to give serious consideration to sacrificing a layer of redundancy in the military appellate process because, in these budgetary times, we can no longer afford such an extravagance.

Audio for NMCCA's Delgado argument

Here's a link to the audio of NMCCA's oral argument in United States v. Delgado, an Article 46 case. (I'm listening to it right now.)

NMCCA's perplexing web site

Let me start with the good: of all four CCAs, NMCCA is the only one to make audio of its oral arguments available on its web site. And I say good on it. I think anyone who listens to those arguments will be impressed with both the bench and the bar. The other three CCAs should follow suit. (As we've previously mentioned, Chief Judge Wise of the Air Force Court has stated in public remarks that AFCCA will soon be recording and webcasting its oral arguments as well. BZ to AFCCA, too.)

Now on to the bad and the ugly. Go to NMCCA's web site's opinions link, then click on the 2009 page. First off, notice that both the original Burk opinion and the opinion on reconsideration, which we discussed here, are now available on the page. But the cite to Burk is followed by this factually incorrect notation: "CAAF has granted review." No; no it hasn't. Nor is it likely that CAAF would grant review, since an accused is unlikely to file a petition for grant of review in a case in which the CCA set aside the findings and sentence. Nor has the Judge Advocate General of the Navy certified the case to CAAF. Rather, Code 46 has simply asked CAAF for more time for the Navy JAG to consider certifying the case. So while it's good that the two Burk opinions are now on NMCCA's web page, they seem to be up there solely because NMCCA is under a misimpression about the case's procedural posture. It will be interesting to see if the links are removed once NMCCA realizes that, in fact, CAAF hasn't granted review of the case.

Now let's get surreal. NMCCA has added some guidance about what's on the page and what isn't. Here it is, reproduced in full:

Opinions - This section will include final published and unpublished opinions. Published opinions are binding precedent upon this court. Opinions that are unpublished but authored may be cited as persuasive authority. Per Curium opinions (which are neither binding nor persuasive precedent), will not be posted to this web site unless the United States Court of Appeals for the Armed Forces grants a petition for review of that case.

First, let's note that "per curiam" is misspelled. Now let's look at this weird provision's substance. Do I have this right? NMCCA doesn't consider ITS OWN per curiam opinions to be even "persuasive precedent." What does that make them, unpersuasive precedent? Well, not according to NMCCA's citation guide, available here, which observes: "Unreported cases typically are not binding authority; however, 'unpublished' does not necessarily equate to 'useless' or 'unimportant.'" Now I'm no Latin scholar, but I'm pretty sure "per curiam" means "by the court" and not "useless" or "unimportant." NMCCA's own rules provide: "Citations to published cases are favored; however, citations to unpublished cases are permissible. The Court views citation to unpublished cases merely as persuasive authority." N-M. Ct. Crim. App. R. 6-4(a). Neither the court's rules not its citation guide appears to even mention per curiam opinions, much less relegate them to some sort of inferior caste. Their inferior, unpersuasive status seems to arise from nowhere. Interestingly, the Federal Rules of Appellate Procedure provide that for opinions issued after 1 January 2007, a "court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been . . . designated as 'unpublished,' 'not for publication,' 'non-precedential,' 'not precedent,' or the like." Of course, NMCCA isn't restricting the precedential effect of its per curiam opinions; rather, it's making them almost impossible for anyone who doesn't work in the Washington Navy Yard's Center of Appellate Excellence to find.

NMCCA's web site doesn't even live up to its promise of providing the court's "unpublished but authored" opinions. Consider NMCCA's fairly recent decision in United States v. Diaz, No. NMCCA 200700970 (N-M. Ct. Crim. App. Feb. 19, 2009), an opinion authored by Senior Judge Geiser. The case was a prominent one, involving a Navy JAG at JTFGTMO who mailed a classified list of detainees in a Valentine's Day card to a prominent civil rights attorney--and Guantanamo critic--at the Center for Constitutional Rights. This authored opinion in a prominent case isn't on NMCCA's web site even though two other unpublished opinions released after Diaz are. (Since NMCCA hasn't made it available, I've posted Diaz here.)

NMCCA's choice not to post Diaz seems like a poor one, but why is NMCCA making such choices at all? As we've seen, a federal statute requires the Article III appellate courts to post all of their decisions on the web. CAAF makes all of its opinions, including summary dispositions, available on the web. It appears that ACCA, AFCCA, and the Coast Guard Court make all of their opinions available on the web. Is NMCCA the only federal appellate court in the country that doesn't post all of its opinions on the Internet? Is there any sound reason why it doesn't? If so, I can't think of it.

Internet access to unpublished opinions

As I indicated earlier this weekend, it now appears that three of the four Courts of Criminal Appeals plus the Court of Appeals for the Armed Forces make all of their opinions available on the Internet. The only outlier is the Navy-Marine Corps Court of Criminal Appeals which, curiously, has led the way among the CCAs in making its oral arguments available on the web.

Interestingly, there's a federal statute that requires "each circuit" to establish and maintain "a website that contains the following information or links to websites with the following information: . . . Access to the substance of all written opinions issued by the court, regardless of whether such opinions are to be published in the official court reporter, in a text searchable format." E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913. Should Congress amend the E-Government Act to bring the military appellate courts within its scope?

Audio of NMCCA's Garner argument

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