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.

Coast Guard trial judge moots Article 120 challenge by deciding to give Military Judges' Benchbook instruction

Here is a Coast Guard trial judge's ruling denying a defense challenge to the new Article 120, but deciding to give the instruction recommended by the Military Judges' Benchbook, which "moots the concerns raised by the defense."

BREAKING NEWS: NMCCA grants government's Crotchett appeal, rejecting new Article 120 challenge in published en banc ruling

In a published en banc decision released today, NMCCA rejected a challenge to the new Article 120.United States v. Crotchett, __ M.J. ___, No. NMCCA 200800770 (N-M. Ct. Crim. App. May 12, 2009) (en banc). Judge Booker wrote the opinion of the court.

The majority framed the issue as "whether an accused service member, in asserting an affirmative defense of consent, must disprove whether a victim is 'substantially incapable of communicating unwillingness to engage in the sexual act,' Article 120(c)(2)(C), in order to be acquitted." Id., slip op. at 2. The court held that "the statute does not require this of an accused." Id.

The majority notes an apparent "overlap of defense and Government burdens in prosecutions for aggravated sexual contact in a case where the defense wishes to present a defense of consent or mistake of fact as to consent." Id., slip op. at 4. But the court proceeds to analyze the statute in a manner that avoids a conflict. NMCCA offers this explanation of how the new Article 120 operates:

If the defense chooses to introduce the notion of consent into the trial, as is permitted (but not required), then the defense bears the burden of satisfying the finder of fact, by a preponderance of the evidence, that the victim used "words or overt acts indicating a freely given agreement to the sexual conduct at issue by a competent person." Art. 120(t)(14). The plain language of this provision assigns to the defense only the burden of convincing the finder of fact by a preponderance of the evidence of two objective determinations: were the words uttered or the overt acts made? If so, could they indicate freely given agreement? If the answer to either question is "no," the statute additionally allows an honest and reasonable mistake of fact as to the objective determinations (in other words, did the accused honestly and reasonably believe that he heard the words or saw the overt acts, and did he hold an honest and reasonable belief that they indicated freely given agreement?).

The affirmative defense does not require the accused to prove the alleged victim's actual agreement, nor actual capacity to agree; rather, the accused need only show that the alleged victim objectively manifested consent. The defense bears no burden of demonstrating that the words actually constituted a "freely given agreement" or that they were made "by a competent person." To the contrary, the burden of proof as to the element of the victim's actual capacity is, and always remains, on the Government, and this burden is beyond a reasonable doubt.

We return to the point that, notwithstanding the advancement of any particular affirmative defense, the Government always bears the burden in a prosecution under this subsection of proving beyond a reasonable doubt that the sexual act occurred, and that the victim was substantially incapable of communicating unwillingness to participate in the act. If the Government fails in any respect -- to prove beyond a reasonable doubt any element, or to disprove beyond a reasonable doubt the existence of a defense -- the accused must be acquitted.

Id., slip op. at 5-6.

Judge Maksym, joined by Judge Couch, dissented in part, noting concern over the constitutionality of Article 120(t)(16)--an issue whose resolution they viewed as unnecessary for purposes of this appeal. Id., slip op. at 8. Article 120(t)(16) provides, in part: "The accused has the burden of proving the affirmative defense by a preponderance of evidence. After the defense meets this burden, the prosecution shall have the burden of proving beyond a reasonable doubt that the affirmative defense did not exist."

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.

NMCCA argument webcast is a total success

The sound quality for NMCCA's inaugural oral argument webcast is outstanding -- better than for CAAF's oral arguments. Both counsel were superb and the bench was hot. Any lawyer who stumbles across the argument online will be impressed with the quality of the advocacy and the incisive questions from the judges. This is a very favorable development.

BZ NMCCA!!!

At this very moment, I am sitting in my home, sipping an ice cold Coke as I type with one hand, and listening to Maj Elizabeth Harvey, USMC, arguing an Article 62 appeal to NMCCA earlier today. NMCCA has posted the audio on its web site. OORAH!

Here's a link to the oral argument page on NMCCA's web site. And here's a link to the audio of today's oral argument in Neal.

I hope that recording and posting oral arguments will now be a regular part of NMCCA's practice. And I hope that the other three CCAs follow NMCCA's lead.

Bravo Zulu, NMCCA!

Army Trial Judiciary issues new-Article 120 Benchbook guidance

One of the many reasons to maintain the ability to post anonymously is that anonymous posters sometimes provide very helpful information. Here's an anonymous post from earlier today:

On 4 Dec the Chief Judge of the Army approved this definition for addition in the Army Bench Book for Art 120 Agg Sexual Assault and Abusive Sexual Contact.

("Substantially incapacitated") (and) ("Substantially incapable") mean(s) that level of mental impairment due to consumption of alcohol, drugs, or similar substance; while asleep or unconscious; or for other reasons; which rendered the alleged victim unable to appraise the nature of the sexual conduct at issue, unable to physically communicate unwillingness to engage in the sexual conduct at issue, or otherwise unable to make or communicate competent decisions.

Breaking News: No Man Realizes Fairley is Apprendi Case, Nearly Fries Computer With Coffee

Ok, since about June 28, 2008 I have been largely asleep at the MilJus switch. And since August 12, 2008 I have been asleep at the Apprendi switch. However, this morning when I read Maj. Hoege's article and Judge Beal's ruling in United States v. Fairley, see here, I nearly fried my computer with the coffee that poured out of my nose. I won't flatter myself that maybe all those Apprendi supplemental assignments of error I wrote at Code 46 penetrated deep into Maj. Beal's subconscious. But, whatever the cause, it is a great day for military justice that Apprendi v. New Jersey may now be applied to courts-martial.

On pages 5-6 of now LtCol Beal's Fairley opinion LtCol Beal discusses the concept of an element of an offense that is not set out in the offense, though strangely those 2 paragraphs are the only without legal citation in the opinion. To those that can follow my madness, I would call that the functional equivalent of an element so allow me to supply a few citations . . . more later.