CAAF's Rules Advisory Committee will be welcoming some new members, but long-term and much beloved member Tom Granahan will be leaving the committee. Mr. Granahan was always very kind to me when I was a faltering young appellate defense counsel (as opposed to now, when I'm a faltering old appellate defense counsel). I wish him all the best! Georgetown Law Professor Jane Aiken will take his place on the committee.
In other membership changes, LCDR Kristina Reeves of Navy-Marine Corps Appellate Defense will be taking the seat formerly occupied by LTC Michele Shields of Army GAD. Maj Matthew Ward of Air Force Appellate Government will also be joining the committee.
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Monday, October 01, 2007
Ward of the Court?
CAAF's daily docket on Friday contains a denial of petition for grant of review in United States v. Ward, No. 07-0473/NA (C.A.A.F. Sept. 28, 2007) (order). Wednesday's daily docket includes this intriguing interlocutory order in Ward's case:
Can someone from NAMARA fill us in on the details of this case? Was this a challenge to post-trial conditions of confinement at the USDB concentrating on denial of access to family members? If so, I litigated a similar case in Maryland, though my case was pre-Overton v. Bazzetta, 539 U.S. 126 (2003) (and my case was a 42 U.S.C. § 1983 action).
On consideration of Appellant’s motion to attach filed June 29, 2007, said motion is hereby granted as it pertains to the affidavit from Appellant; the letter from Appellant’s wife; and the summary of forms documenting his exhaustion of administrative remedies at the USDB, Fort Leavenworth to established contact with his children. Said motion is denied as it pertains to the letter from his children.
Can someone from NAMARA fill us in on the details of this case? Was this a challenge to post-trial conditions of confinement at the USDB concentrating on denial of access to family members? If so, I litigated a similar case in Maryland, though my case was pre-Overton v. Bazzetta, 539 U.S. 126 (2003) (and my case was a 42 U.S.C. § 1983 action).
CAAF cleans house
Thursday's daily docket includes "Special Docket Matters" containing orders disbarring four members of CAAF's bar and suspending another four indefinitely. All of these actions are based on disciplinary actions by the attorneys' state bars. CAAF also revokes Jeffrey Zander's membership in its bar nunc pro tunc. As we previously discussed, Zander -- a Marine Corps judge advocate -- was never actually a member of any state bar.
BIG SCOTUS news (at least by military justice standards)
The Court has asked the SG to file a response in one of the DAD Duo cases: Foerster v. United States, No. 07-359. The SG's current due date is 29 October 2007. Here is CPT Nathan Bankson's QP from the Foerster cert petition:
If someone will send me an electronic version of the complete cert petition, I'll post it on CAAFlog.com.
Whether the Court of Appeals for the Armed Forces properly held that an affidavit prepared and sworn to by the victim of a crime and relied upon by the government to convict petitioner did not violate petitioner’s Sixth Amendment right to confrontation because the victim’s affidavit was not testimonial and also properly admissible as a business record under Military Rule of Evidence 803(6).
If someone will send me an electronic version of the complete cert petition, I'll post it on CAAFlog.com.
Today's order list
As expected, today's order list includes the October Term's first three denials of military cert petitions: Taylor v. United States, No. 07-13; Monette v. United States, No. 07-5623; and Phillips v. United States, 07-5716.
Harrow cert petition update
The SG waived his right to respond to the cert petition in Harrow v. United States, No. 07-404, which we previously discussed here and here.
NMCCA on competing consents and the inevitable discovery exception
On 25 September 2007, NMCCA issued a lengthy scholarly published opinion exploring the competing consent doctrine for search and seizure authorizations and the inevitable discovery exception to the exclusionary rule. United States v. Weston, __ M.J. ___, No. NMCCA 200600985 (N-M. Ct. Crim. App. Sept. 25, 2007). (The fact that NMCCA had to discuss the inevitable discovery doctrine tells you how the competing consent analysis came out.) Of course, if you rely on such mundane sources of law as LEXIS or NMCCA's own web site, you wouldn't know about this published opinion. But it was posted on NKO today, so as a public service, CAAFlog.com has posted the decision here.
The decision ultimately sets aside the findings and sentence while authorizing a rehearing. (Congrats, Maj Belliss!)
In a further challenge to the validity of the general deterrence concept, the case was a court-martial of the chief court reporter for Marine Corps Base, Kaneohe. He was suspected of having placed a hidden camera in a head to film video of a Marine sergeant with whom he worked. After she discovered the camera and reported SSgt Weston to CID, both SSgt Weston and his wife ended up at the CID office. A CID agent asked SSgt Weston for consent to search his quarters, but he refused. The CID agent then asked SSgt Weston's wife to consent, though without informing her that her husband had refused. She consented and two computers and storage devices were seized. Twenty-nine days later, the commanding general authorized a search of the computer, which contained incriminating evidence.
NMCCA first holds that SSgt Weston's wife's consent did not authorize the search. Weston, slip op. at 9. NMCCA asks: "Would a sensible person who is presented with competing invitations away from the shared residence have any confidence that the 'invitation was a sufficiently good reason to enter when a fellow tenant' told them to stay out?" Id. (quoting Georgia v. Randolph, 547 U.S> 103, 113 (2006)). NMCCA continues, "If the invitee knew that the non-consenting co-tenant would not or could not be present at the shared residence to enforce his refusal, would shared social expectations and common understanding lead a sensible person to have confidence that the competing invitation is a sufficient reason to enter?" Id. NMCCA answers, "We think not." Id.
NMCCA then proceeds to determine whether the violation of SSgt Weston's Fourth Amendment rights was harmless beyond a reasonable doubt. The crux of this discussion is whether the incriminating evidence would have been inevitably discovered if CID had not made a consent search. Following an exhaustive discussion of the inevitable discovery exception to the exclusionary rule, NMCCA concludes that "the Government's evidence establishes no more than that the seized evidence 'could' have been discovered if an alternative procedure had been implemented as part of the investigation. Only speculation can get the Government beyond what 'could' have been done and what results 'might' have been achieved. Because we must focus on the 'demonstrated historical facts capable of ready verification or impeachment,' without speculation, [Nix v. Williams, 467 U.S. 431, 444 n.5 (1984),] we conclude that the Government did not carry its burden of establishing inevitable discovery by a preponderance of the evidence." Id., slip op. at 18-19. The inevitable discovery analysis paints the investigating CID agent as a Keystone Kop, suggesting that his performance hardly suggests that it was inevitable that he would have discovered the evidence but for his reliance on Ms. Weston's consent.
I'm guessing that the Judge Advocate General of the Navy certifies this one to CAAF.
The decision ultimately sets aside the findings and sentence while authorizing a rehearing. (Congrats, Maj Belliss!)
In a further challenge to the validity of the general deterrence concept, the case was a court-martial of the chief court reporter for Marine Corps Base, Kaneohe. He was suspected of having placed a hidden camera in a head to film video of a Marine sergeant with whom he worked. After she discovered the camera and reported SSgt Weston to CID, both SSgt Weston and his wife ended up at the CID office. A CID agent asked SSgt Weston for consent to search his quarters, but he refused. The CID agent then asked SSgt Weston's wife to consent, though without informing her that her husband had refused. She consented and two computers and storage devices were seized. Twenty-nine days later, the commanding general authorized a search of the computer, which contained incriminating evidence.
NMCCA first holds that SSgt Weston's wife's consent did not authorize the search. Weston, slip op. at 9. NMCCA asks: "Would a sensible person who is presented with competing invitations away from the shared residence have any confidence that the 'invitation was a sufficiently good reason to enter when a fellow tenant' told them to stay out?" Id. (quoting Georgia v. Randolph, 547 U.S> 103, 113 (2006)). NMCCA continues, "If the invitee knew that the non-consenting co-tenant would not or could not be present at the shared residence to enforce his refusal, would shared social expectations and common understanding lead a sensible person to have confidence that the competing invitation is a sufficient reason to enter?" Id. NMCCA answers, "We think not." Id.
NMCCA then proceeds to determine whether the violation of SSgt Weston's Fourth Amendment rights was harmless beyond a reasonable doubt. The crux of this discussion is whether the incriminating evidence would have been inevitably discovered if CID had not made a consent search. Following an exhaustive discussion of the inevitable discovery exception to the exclusionary rule, NMCCA concludes that "the Government's evidence establishes no more than that the seized evidence 'could' have been discovered if an alternative procedure had been implemented as part of the investigation. Only speculation can get the Government beyond what 'could' have been done and what results 'might' have been achieved. Because we must focus on the 'demonstrated historical facts capable of ready verification or impeachment,' without speculation, [Nix v. Williams, 467 U.S. 431, 444 n.5 (1984),] we conclude that the Government did not carry its burden of establishing inevitable discovery by a preponderance of the evidence." Id., slip op. at 18-19. The inevitable discovery analysis paints the investigating CID agent as a Keystone Kop, suggesting that his performance hardly suggests that it was inevitable that he would have discovered the evidence but for his reliance on Ms. Weston's consent.
I'm guessing that the Judge Advocate General of the Navy certifies this one to CAAF.
New issue of JAGMAG
The July/August issue of JAG Magazine is now available here. There's not much for the military justice practitioner, though the Kabul Klipper should enjoy the cover article on legal mentors in Afghanistan. There is an article on page 20 under the banner "JAG Corps 2020" that discusses something called "CMTIS." I get the impression that CMTIS probably has something to do with military justice. For all I know, the "CM" in "CMTIS" stands for either court-martial or courts-martial. But I honestly can't figure out what the heck the article is talking about. Then I did a Google search of "CMTIS" and found an article applying Lean Six Sigma principles to CMTIS. Now I'm even more confused.
Busy news day
Today was a busy news day, with the release of the Supreme Court's long conference order list, the start of CAAF's term, the posting of a published Navy-Marine Corps Court case, and more. So I will be making a series of posts tonight. But let's start on a whimsical note. One of the best turned phrases of last term was Judge Baker's reference to "the recently hirsute Appellant" in a case where the accused shaved all the hair from his body in an apparent effort to avoid drug detection (it didn't work). United States v. Moran, 65 M.J. 178, 184 (C.A.A.F. 2007). Now CAAF has a newly hirsute judge. I wasn't able to make it to CAAF today for the Denedo argument. So I called up a few people who were there to see how it went. Here's roughly how the conversations went:
Me: Hey, how did the Denedo argument go?
Anonymous source: Judge Erdmann had a goatee!
Me: Really? How did the argument go?
Anonymous source: And a mustache!
Me: Really? How did the argument go?
Anonymous source: Oh, they were a hot bench and seemed to focus on the jurisdictional question, and did I mention that Judge Erdmann had a goatee?
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