The Coast Guard Court has issued a decision emphasizing the important of military judges carefully explaining on the record how they are crediting the accused for a prior NJP dealing with the same misconduct for which the accused was convicted at court-martial. The military judge whose explanation the Coast Guard Court found unsatisfactory? Judge Judge.
United States v. Gormley, __ M.J. ___, No. 1230 (C.G. Ct. Crim. App. 31 Jan. 2007).
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Monday, February 05, 2007
Naval Academy Quarterback Case Featured on WJZ 13
In MilJus related news coverage, the story of the former Naval Academy quarterback acquitted at a 2006 court-martial, but convicted on conduct offenses and receiving no punishment, will be featured on tonight's 11 pm news on Baltimore's WJZ TV news. Here is a link to the preview of the story (page 2 of the video previews). According to the preview, the case is still winding its way through the post-trial review and administrative process. In light of the "no punishment" finding the case is likely in the shrouded in mystery Art. 69 review process.
A review of the JAGs' annual reports for FY 1997 to FY 2005 (all that are available on CAAF's website) shows that the Navy-Marine Corps has a disproportionately high number of Art. 69 review cases (Navy 175; Army 90) and a lower than average rate of relief granted (Navy 3.4% (and none in last 5 years); Army 5.5%). Considering that the Navy-Marine Corps system only has 20% more General/Special courts martial than the Army, the almost 100% difference in Art. 69 review numbers seems perplexing. Anyone have a theory . . . other than Guert's engine for military justice theory?
A review of the JAGs' annual reports for FY 1997 to FY 2005 (all that are available on CAAF's website) shows that the Navy-Marine Corps has a disproportionately high number of Art. 69 review cases (Navy 175; Army 90) and a lower than average rate of relief granted (Navy 3.4% (and none in last 5 years); Army 5.5%). Considering that the Navy-Marine Corps system only has 20% more General/Special courts martial than the Army, the almost 100% difference in Art. 69 review numbers seems perplexing. Anyone have a theory . . . other than Guert's engine for military justice theory?
Sunday, February 04, 2007
Annual Manual?
As Dennis Miller might say, now I don't want to get off on a rant here, but why are we continuing to use a Manual for Courts-Martial that has been out of date for well more than a year? (Actually, it was already out of date when it was published. More on that below.)
When DOD switched from the three-ring binder version of the 1984 Manual to complete reprints, the expectation was that a new Manual would come out with each Executive Order amending the Manual. A 1994 Army Lawyer article explained: "Change 6 and recent legislative (UCMJ) changes have been incorporated into the Manual scheduled for publication in 1994. The reprinted Manual will be a single, soft-bound volume and will be republished annually or as changes are required." Lieutenant Colonel Eugene R. Milhizer & Lieutenant Colonel Thomas W. McShane, Analysis of Change 6 to the 1984 Manual for Courts-Martial, Army Law., May 1994, at 40, 47.
Things sure haven't worked out that way. Only six soft-bound Manuals have been issued: 1994, 1995, 1998, 2000, 2002, and 2005. Consider what is not in the current Manual: the 2005 Amendments to the Manual for Courts-Martial, published on 18 October 2005, 70 Fed. Reg. 60,697; the UCMJ amendments made by the FY 2006 DOD Authorization Act, Pub L. No. 109-163; and the UCMJ amendments made by the FY 2007 DOD Authorization Act, Pub. L. No. 109-364.
Maybe the concept of publishing an entire new Manual and throwing away the old one is dated. Maybe it was a bad idea even in 1994 when it was originally hatched. But many years ago Al Gore invented this wonderful new device called the Internet. You know, that thing that allows me to post this rant and allows you to read it. Can't DOD at least post an annual updated version of the MCM, even if it doesn't want to devote the expense and cause the deforestation necessary to print it?
Oh, and maybe the online version of the MCM could include UCMJ article 25a, which Congress adopted in 2001, Pub. L. No. 107-107, but which was omitted from both the 2002 and 2005 editions of the Manual.
Of course, that's just my opinion. I could be wrong.
--Dwight Sullivan
When DOD switched from the three-ring binder version of the 1984 Manual to complete reprints, the expectation was that a new Manual would come out with each Executive Order amending the Manual. A 1994 Army Lawyer article explained: "Change 6 and recent legislative (UCMJ) changes have been incorporated into the Manual scheduled for publication in 1994. The reprinted Manual will be a single, soft-bound volume and will be republished annually or as changes are required." Lieutenant Colonel Eugene R. Milhizer & Lieutenant Colonel Thomas W. McShane, Analysis of Change 6 to the 1984 Manual for Courts-Martial, Army Law., May 1994, at 40, 47.
Things sure haven't worked out that way. Only six soft-bound Manuals have been issued: 1994, 1995, 1998, 2000, 2002, and 2005. Consider what is not in the current Manual: the 2005 Amendments to the Manual for Courts-Martial, published on 18 October 2005, 70 Fed. Reg. 60,697; the UCMJ amendments made by the FY 2006 DOD Authorization Act, Pub L. No. 109-163; and the UCMJ amendments made by the FY 2007 DOD Authorization Act, Pub. L. No. 109-364.
Maybe the concept of publishing an entire new Manual and throwing away the old one is dated. Maybe it was a bad idea even in 1994 when it was originally hatched. But many years ago Al Gore invented this wonderful new device called the Internet. You know, that thing that allows me to post this rant and allows you to read it. Can't DOD at least post an annual updated version of the MCM, even if it doesn't want to devote the expense and cause the deforestation necessary to print it?
Oh, and maybe the online version of the MCM could include UCMJ article 25a, which Congress adopted in 2001, Pub. L. No. 107-107, but which was omitted from both the 2002 and 2005 editions of the Manual.
Of course, that's just my opinion. I could be wrong.
--Dwight Sullivan
Saturday, February 03, 2007
Haditha Case is . . . A Mess?
If you haven't been following the case of four Marines accused of murder in Haditha, Iraq, the vicissitudes of the pre-trial process will amaze you. First, the government's star witness was convicted of theft when, last year, he stole a vehicle and crashed it in his home town. Now the same star witness, according to one news story, is facing charges of rape at Camp Pendleton. Additionally, someone within DoD leaked part of the investigative file on the Haditha killings and defense attorneys are raising a stink. The CG of 1 MEF, Lt. Gen. James "Mad Dog" Mattis, has ordered an investigation into the leak.
Friday, February 02, 2007
Too good to be true?
Let's return to People Magazine mode for a moment. (Actually, this story might not even rise to People's level of gravitas.) There is a story going around about a Project Outreach argument. I would love to know whether it's true. Can someone with prescient knowledge confirm or deny this tale? I'm not a big fan of Project Outreach, but I'm willing to reconsider my position and become the program's biggest fan if this actually happened.
The story has it that CAAF was scheduled to hear a Project Outreach argument at a civilian law school. CAAF chose to hear some meaty issue in a case with an unusual name. Lo and behold, it turned out that there was a student at that law school with that very name. Unfortunately for the student, the law school administration quickly realized that the student had failed to mention his court-martial conviction when he had applied to and been accepted by that institution of higher education. CAAF, so the story goes, has now decided to hear a different case at that law school. The fate of the original appellant remains uncertain, though regardless of whether CAAF affirms or reverses his conviction, obtaining a J.D. -- much less a license to practice law -- doesn't appear to be in his future.
True or false?
--Dwight Sullivan
The story has it that CAAF was scheduled to hear a Project Outreach argument at a civilian law school. CAAF chose to hear some meaty issue in a case with an unusual name. Lo and behold, it turned out that there was a student at that law school with that very name. Unfortunately for the student, the law school administration quickly realized that the student had failed to mention his court-martial conviction when he had applied to and been accepted by that institution of higher education. CAAF, so the story goes, has now decided to hear a different case at that law school. The fate of the original appellant remains uncertain, though regardless of whether CAAF affirms or reverses his conviction, obtaining a J.D. -- much less a license to practice law -- doesn't appear to be in his future.
True or false?
--Dwight Sullivan
Supreme Court update
The Christian cert petition, originally filed pro se IFP, has now secured the assistance of counsel, with David Sheldon as lead counsel on Christian's reply brief, which was filed 31 January. The Supreme Court has scheduled Christian for the 16 February conference, during which the Court will also consider the Lovett cert petition.
The SG's response is due in New, the collateral attack on a court-martial conviction, by 21 February.
The SG is quickly running out of time to file a cert petition in either Lane or Long. In both cases, a cert petition would be due this coming Monday. The SG has sought cert in eight cases since last Term ended on 29 June 2006 -- none of them from the military justice system. (Each of the cert petitions is available here.) The Supremes have granted cert in four and four remain pending. (The Supremes acted on another four SG cert petitions this Term, but those were all filed last Term. One was granted, two resulted in GVRs and one was, gasp, denied!)
--Dwight Sullivan
The SG's response is due in New, the collateral attack on a court-martial conviction, by 21 February.
The SG is quickly running out of time to file a cert petition in either Lane or Long. In both cases, a cert petition would be due this coming Monday. The SG has sought cert in eight cases since last Term ended on 29 June 2006 -- none of them from the military justice system. (Each of the cert petitions is available here.) The Supremes have granted cert in four and four remain pending. (The Supremes acted on another four SG cert petitions this Term, but those were all filed last Term. One was granted, two resulted in GVRs and one was, gasp, denied!)
--Dwight Sullivan
Thursday, February 01, 2007
CAAF Recap
So far this week, CAAF has announced five opinions. These cases capped off a remarkably productive start of the 2007 term. CAAF issued more opinions from October to January this term than in any other comparable period starting in 1997, the first term for which the court's opinions are available on its web site.
This term has also been characterized by remarkable unanimity. During no other term for which opinions are available on the CAAF web site did the court decide its first 18 cases without a single separate opinion. Of course, it is both mathematically and practically easier to reach unanimity with three judges than five. Perhaps we should refer to the first four months of this term as "The Era of Three-Part Harmony."
Thus far Chief Judge Effron has authored six opinions, Judge Erdmann has authored six, Judge Baker has authored five, and the court has issued one per curiam opinion.
Other than the one case set for reargument, only two cases argued in October and November have yet to be decided. The first is Gutierrez, No. 06-5005/AR, a case in which The Judge Advocate General of the Army certified the rather unhelpfully worded issue of "Whether the United States Army Court of Criminal Appeals erred in holding that the trial defense counsel did not affirmatively waive an affirmative defense instruction with respect to a lesser-included offense." It was argued on 14 November.
The second November case remaining to be decided is Wise, No. 06-0610/AR. Wise presents an unusually interesting issue: "Whether Appellant's confinement conditions, including and in particular with respect to his claim of having been confined with Enemy Prisoners of War in Iraq, were unlawful, and whether, in the context presented, Appellant forfeited his claims of unlawful post-trial confinement by failing to exhaust his administrative remedies under United States v. White, 54 M.J. 469 (C.A.A.F. 2001)." Wise was argued 28 November.
CAAF heard three cases on 28 November. Chief Judge Effron has written the opinion of the court in one (Green) and Judge Erdmann has written the opinion of the court in another (Carruthers). So I expect to see Judge Baker as the author judge in Wise. Judge Baker's national security background would also seem to make him a logical candidate for assignment as the Wise author judge.
CAAF heard four cases the week of 14 November. Chief Judge Effron has written for the court in one (Perez), while Judge Erdmann wrote for the court in another (Brooks). Judge Baker has not yet written an opinion of the court for a case argued that week. But one case from that week (Moran) will be reargued. CAAF didn't announce that reargument until 10 January, so it appears that Moran was probably assigned to a judge at the conference for the 14 November arguments. If Judge Baker was originally assigned as the author judge in Moran, then each judge would have had one opinion from that week and one of the judges would have received a second with Gutierrez. So while Judge Baker is not the author judge of any opinion released yet from the week of 14 November, it doesn't seem safe to assume that he will be the author judge in Gutierrez.
--Dwight Sullivan
This term has also been characterized by remarkable unanimity. During no other term for which opinions are available on the CAAF web site did the court decide its first 18 cases without a single separate opinion. Of course, it is both mathematically and practically easier to reach unanimity with three judges than five. Perhaps we should refer to the first four months of this term as "The Era of Three-Part Harmony."
Thus far Chief Judge Effron has authored six opinions, Judge Erdmann has authored six, Judge Baker has authored five, and the court has issued one per curiam opinion.
Other than the one case set for reargument, only two cases argued in October and November have yet to be decided. The first is Gutierrez, No. 06-5005/AR, a case in which The Judge Advocate General of the Army certified the rather unhelpfully worded issue of "Whether the United States Army Court of Criminal Appeals erred in holding that the trial defense counsel did not affirmatively waive an affirmative defense instruction with respect to a lesser-included offense." It was argued on 14 November.
The second November case remaining to be decided is Wise, No. 06-0610/AR. Wise presents an unusually interesting issue: "Whether Appellant's confinement conditions, including and in particular with respect to his claim of having been confined with Enemy Prisoners of War in Iraq, were unlawful, and whether, in the context presented, Appellant forfeited his claims of unlawful post-trial confinement by failing to exhaust his administrative remedies under United States v. White, 54 M.J. 469 (C.A.A.F. 2001)." Wise was argued 28 November.
CAAF heard three cases on 28 November. Chief Judge Effron has written the opinion of the court in one (Green) and Judge Erdmann has written the opinion of the court in another (Carruthers). So I expect to see Judge Baker as the author judge in Wise. Judge Baker's national security background would also seem to make him a logical candidate for assignment as the Wise author judge.
CAAF heard four cases the week of 14 November. Chief Judge Effron has written for the court in one (Perez), while Judge Erdmann wrote for the court in another (Brooks). Judge Baker has not yet written an opinion of the court for a case argued that week. But one case from that week (Moran) will be reargued. CAAF didn't announce that reargument until 10 January, so it appears that Moran was probably assigned to a judge at the conference for the 14 November arguments. If Judge Baker was originally assigned as the author judge in Moran, then each judge would have had one opinion from that week and one of the judges would have received a second with Gutierrez. So while Judge Baker is not the author judge of any opinion released yet from the week of 14 November, it doesn't seem safe to assume that he will be the author judge in Gutierrez.
--Dwight Sullivan
New published ACCA decision
ACCA yesterday released a lengthy published opinion in an Article 62 appeal. United States v. Jones, No. ARMY MISC 20060858 (A. Ct. Crim. App. 31 Jan. 2007). The opinion reverses the military judge's ruling excluding in-court testimony of Jones' marijuana importation co-conspirator that he ruled was the fruit of an unconstitutional search and seizure.
Subject Matter Days at CAAF
I like CAAF's new trend of releasing two oinions on the same subject matter on the same day. Jan. 25th was Members' Challenges Day (with a side order of sentencing evidence), Tuesday was Human Lie Detector Day, and Wednesday was Confrontation Clause Day. Maybe tomorrow can be Meaningful Relief For Post-Trial Delay Day (MRFPTD Day)? Unfortunatley for those accused languishing on appellate review, that includes you QM1 Forbes, I think both CAAF and the CCAs believe MRFPTD Day is celebrated on Feb. 30th.
Two new CAAF opinions
Two new opinions were posted on CAAF's web site last night:
United States v. Rankin, No. 06-0119/NA, and United States v. Carruthers, No. 06-0050/AR, both dated Jan. 31, 2007.
United States v. Rankin, No. 06-0119/NA, and United States v. Carruthers, No. 06-0050/AR, both dated Jan. 31, 2007.
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