An Article 62 timeline

In United States v. Pearson, the Navy-Marine Corps Court explained that "prosecution appeals are not particularly favored in the courts" because they "compete with speedy trial and double jeopardy protection as well as judicial impartiality and piecemeal appeal policies." 33 M.J. 777, 779 (N.M.C.M.R. 1991).

The government's appeal in Wuterich certainly appears to vindicate the Navy-Marine Corps Court's speedy trial concern.

Charges against SSgt Wuterich were referred on 27 December 2007. On 17 January 2008, the prosecution issued a subpoena to CBS News for outtakes of Scott Pelley's interview with SSgt Wuterich for 60 Minutes. On 22 February, the military judge quashed the subpoena and three days later the prosecution filed its notice of appeal. The case has now been on hold for longer than four months, with a final resolution of this issue nowhere in sight.

The government filed its notice of appeal with NMCCA on 17 March and then filed its actual appeal on 7 April. NMCCA granted the appeal on 20 June. United States v. Wuterich, __ M.J. ___, No. NMCCA 200800183 (N-M. Ct. Crim. App. June 20, 2008). While the defense had either 30 days to seek reconsideration in panel or en banc or 60 days to petition CAAF, it filed its petition with CAAF 10 days after NMCCA's ruling (which, because NMCCA issued its ruling on a Friday, was only the 6th business day after NMCCA's ruling). United States v. Wuterich, __ M.J. ___, No. 08-0681/MC (C.A.A.F. June 30, 2008).

Now one of three things will likely happen: (1) CAAF will grant SSgt Wuterich's petition and resolve the merits of the case by reversing NMCCA; (2) CAAF will grant SSgt Wuterich's petition and resolve the merits of the case by affirming NMCCA; or (3) CAAF will decline to review the issue.

Given the importance of the issues involved, one wouldn't expect CAAF to rush a decision on the merits if it follows options (1) or (2). If option (1) is the end result, then SSgt Wuterich's case will have been delayed for well more than half a year for no purpose. Worse still, even if he ultimately prevails on this Article 62 appeal, as a result of this litigation SSgt Wuterich may end up losing his two military defense counsel, both of whom are scheduled to retire on 1 August as reported by the Meridian Record-Journal here. 1 August is just one day after the government's answer to SSgt Wuterich's supplement will likely be due under the briefing schedule. See United States v. Wuterich, __ M.J. ___, No. 08-6006/MC (C.A.A.F. July 1, 2008).

If either option (2) or (3) results, a final resolution is even further away. Remember that NMCCA didn't order CBS to actually produce the outtakes. Rather, it ordered more factfinding. Here's the relevant portion of NMCCA's decretal paragraph:

Prior to ruling on the CBS motion to quash, we direct the military judge to conduct additional fact-finding to (1) fully develop the record on the contents of the audio-video material, including an in camera review of any material over which CBS asserts privilege; (2) if, based on the facts developed, a determination is made that undisclosed audio-video material is relevant and necessary, the military judge will then develop the factual and legal basis for any CBS refusal to comply with the federal subpoena issued to obtain the material; and (3) taking into consideration protective measures available to the military judge, address whether, and to what extent, any asserted "news-gathering" privilege applies to limit or preclude disclosure of necessary evidentiary audio-video material in this case.

Wuterich, No. NMCCA 200800183, slip op. at 10-11. If NMCCA's opinion is ultimately affirmed, those additional factfinding proceedings will likely be lengthy. If they are again resolved in CBS's favor, will the government file yet another Article 62 appeal, using NMCCA's first Wuterich opinion to establish the appellate jurisdiction necessary to do so? And if the issue is resolved against CBS, does anyone think that CBS will simply hand over the materials to the prosecution? Doesn't it seem more likely that CBS will seek an order from an Article III court to trump any ruling against it? Doesn't it seem quite possible that CBS will obtain an injunction blocking any obligation to cough up the outtakes while the Article III proceedings are underway? And doesn't it seem possible that if NMCCA's opinion is upheld at CAAF, CBS will seek such an injunction before it's required to even give the outtakes to the military judge for an in camera review?

It isn't difficult to envision the interlocutory proceedings in this case stretching out for months and months to come. In fact, it's difficult to imagine that they won't.

When you wish upon a third star

We have long supported a third star for each of the Judge Advocates General. Now our wish for three third stars is well on its way to being granted.

Over the past week, the Kabul Klipper has become a third star information clearinghouse. He noted here that the President has nominated Rear Admiral MacDonald for a third star and here that the President has nominated Major General Rives for a third star.

Amidst the soggy remains of last night's fireworks here at Casa CAAFlog, I was left wondering, "What about General Black?" Fortunately, a Friend o' CAAFlog has called my attention to this Air Force Times piece from yesterday reporting that "Army judge advocate general Maj. Gen. Scott C. Black is also expected to be nominated soon for his third star."

Whither Wheeler?

We previously noted that CAAF enlarged the Judge Advocate General of the Navy's deadline for filing a certificate of review to challenge United States v. Wheeler, 66 M.J. 590 (N-M. Ct. Crim. App. 2008), until 1 July. United States v. Wheeler, __ M.J. ___, No. 08-5007/NA (C.A.A.F. June 23, 2008). (We previously discussed NMCCA's opinion in Wheeler, which held Military Rule of Evidence 707 unconstitutional as applied, here.)

CAAF's daily journal for 1 July is online; it doesn't note the filing of a certificate in Wheeler. Does that indicate that the Judge Advocate General of the Navy declined to certify Wheeler? Can someone with definitive knowledge let us know? (As always, if you don't want to post below, you can e-mail us at caaflog@caaflog.com.)

QP from Moorefield cert petition

We previously noted the cert petition seeking review of United States v. Moorefield, 66 M.J. 170 (C.A.A.F. 2008) (per curiam).

Here's the QP from the cert petition: "Whether a former judge who presided over the criminal trial of a defendant may later prosecute the same defendant?"

Air Force JAG nominated for third star

Major General Rives was nominated for the grade of lieutenant general by the President, according to a Pentagon press release dated July 3.

Independence Day Thoughts

For those actually checking CAAFlog on Independence Day, we hope you have a safe day. Not a lot of MilJus news today. To be honest, after last week's dust up created by CAAFlog's Kennedy v. Louisiana revelation, he deserves the weekend off.

Oops, I was mistakenly signed in as CAAFlog.

No Man

Another military cert petition

The Supremes have docketed a cert petition in Moorefield v. United States, No. 08-19. CAAF's decision in the case rejected a challenge to the impartiality of the staff judge advocate who provided the post-trial recommendation because he had presided over a previous court-martial of Sgt Moorefield. United States v. Moorefield, 66 M.J. 170 (C.A.A.F. 2008) (per curiam). We took a brief look at the Moorefield opinion here.

On the cert petition, Sgt Moorefield is represented by Darrin W.S. MacKinnon, Esq. If anyone has the QP, could you please pass it along? You can post it below or e-mail it to us at caaflog@caaflog.com.

DOJ notes possibility that Kennedy v. Louisiana doesn't apply to courts-martial

Thursday's NYT has this piece by Linda Greenhouse following up on her article in today's NYT about Kennedy v. Louisiana's failure to note that the National Defense Authorization Act for Fiscal Year 2006 allowed courts-martial to adjudge death for the rape of a child.

Thursday's article reports that DOJ "acknowledged on Wednesday that government lawyers should have known that Congress had recently made the rape of a child a capital offense in the military and should have informed the Supreme Court of that fact" while the Supremes were considering Kennedy v. Louisiana.

But here's the part of the article most important for we military justice wonks:

The Justice Department statement was carefully worded to avoid conceding that under the reasoning of the Supreme Court decision, the military death penalty provision for child rape is now unconstitutional.

The statement noted that in a 1996 decision, Loving v. United States, which upheld the military's general death penalty provision, the justices simply assumed, without deciding, that the court's death penalty jurisprudence was fully applicable to the military. Since no death penalty prosecution has been brought since the military provision took effect, it is not clear how or when its constitutionality may be tested.

Pre-Kennedy, military appellate courts consistently side-stepped the question of whether, despite Coker v. Georgia, 433 U.S. 584 (1977), a court-martial could adjudge a death sentence for rape. See, e.g., United States v. Stebbins, 61 M.J. 366, 368 (C.A.A.F. 2005) (holding that LWOP is an authorized punishment for rape regardless of Coker's applicability); United States v. Straight, 42 M.J. 244 (C.A.A.F. 1995) (holding that the propriety of a capital referral in a rape/attempted murder case was waived by defense counsel's failure to make a constitutional challenge to the capital referral); United States v. Gonzales, 46 M.J. 667 (N-M. Ct. Crim. App. 1997) (declining to resolve whether the military's death penalty for rape is constitutionally permissible in light of Coker), aff'd, 51 M.J. 306 (C.A.A.F. 1999).

BREAKING NEWS: ACCA issues published opinion in Abu Ghraib case

In another published opinion authored by Judge Maggs, ACCA tweaked the findings and affirmed the sentence of Specialist Sabrina Harman, who was convicted of maltreating detainees and failing to stop other Soldiers from maltreating detainees, as well as a related conspiracy, while she served as an MP at Abu Ghraib. United States v. Harman, __ M.J. ___, No. ARMY 20050597 (A. Ct. Crim. App. June 30, 2008). (While the opinion is dated 30 June, it appears to have been uploaded onto ACCA's web site today.)

The prosecution provided the defense and members with a nine-paragraph bill of particulars. The military judge had the members reach a verdict on the bill of particulars, which resulted in findings of guilty to seven of its nine paragraphs. ACCA held that the military judge erred by "requir[ing] the panel to make findings on the bill of particulars," rather than on the relevant specification. Id., slip op. at 5. This produced an irregular verdict in which the members excepted language from the bill of particulars that wasn't actually in the specification. ACCA made some minor revisions to the relevant specification to remedy the errors.

ACCA also rejected legal and factual sufficiency challenges to the convictions. Id., slip op. at 6-13.

Finally, ACCA upheld the military judge's denial of a challenge for cause against a command sergeant major. Id., slip op. at 13-15. In rejecting an implied bias challenge, ACCA concluded, "A member of the public would not believe that a senior non-commissioned officer, like CMS LP, who said she could be objective, would in fact be biased or would serve unfairly merely because she had seen or heard news stories about matters relating to appellant's case." Id., slip op. at 14-15.

CAAF grants review to test CCAs' corrective powers

CAAF has granted review of two issues that test how far a CCA can go in denying relief after finding or assuming error. In United States v. Thompson, __ M.J. ___, No. 08-0334/MC (C.A.A.F. July 1, 2008), CAAF granted review of these issues:

WHETHER THE LOWER COURT ERRED IN HOLDING THAT, EVEN IF THE MILITARY JUDGE ERRED IN DENYING THE DEFENSE MOTION TO SUPPRESS APPELLANT'S CONFESSION TO INVESTIGATOR AR, THE ERROR WAS HARMLESS BEYOND A REASONABLE DOUBT.

WHETHER THE LOWER COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT BY SUBSTITUTING ITS FINDING OF GUILT TO RECKLESS ENDANGERMENT UNDER ARTICLE 134, UCMJ, FOR THE COURT-MARTIAL'S FINDING OF GUILT AS TO THE OFFENSE OF KIDNAPPING AS PLED UNDER CHARGE V, SPECIFICATION 2.

NMCCA's unpublished decision in the case is available here. United States v. Thompson, No. NMCCA 200600807 (N-M. Ct. Crim. App. Dec. 11, 2007).

Among the several offenses of which Pvt Thompson was convicted was kidnapping his wife. NMCCA set aside the kidnapping conviction. The alleged kidnapping was a stand-alone offense, arising out of an argument between Thompson and his wife. It was followed by a rapproachment. During the argument, Thompson got into his car and sped off with his wife apparently partly in and partly out of the car. Witnesses' accounts differed over whether Thompson pulled his wife into the car before speeding off. NMCCA held that the evidence did not prove beyond a reasonable doubt "that the appellant's alleged carrying away of his wife was more than a momentary detention," thus failing to satisfy kidnapping's elements. Id., slip op. at 6.

But while setting aside the kidnapping conviction on both legal and factual insufficiency grounds, NMCCA nevertheless literally rewrote the specification and found him guilty of reckless endangerment instead. See id., slip op. at 10. The Manual for Courts-Martial did not list reckless endangerment as a lesser-included offense of kidnapping; rather, the only listed kidnapping LIO was attempt. Manual for Courts-Martial, United States at Pt. IV, ¶ 92.d (2005 ed.). Nevertheless, NMCCA maintained that because "the elements for Article 134 offenses of kidnapping and reckless endangerment both prohibit conduct that is either prejudicial to good order and discipline or is service discrediting, we finding that the appellant was clearly on notice of the crime he needed to defend against at trial." Thompson, slip op. at 8. This seems to hold that because kidnapping and reckless endangerment share one element, it doesn't matter that each has three unique elements not found in the other; the overlap of the one element was sufficient to put the defense on notice to defend against the apparently uncharged offense of reckless endangerment. If I am correctly divining the nature of the issue from NMCCA's slip opinion, then it's little wonder that CAAF granted review on Issue II. (NMCCA did provide meaningful sentence relief though, knocking two years off the approved confinement and reducing the adjudged and approved DD to a BCD.)

As to Issue I, NMCCA assumed without deciding that a CID agent violated the Fifth Amendment in obtaining Pvt Thompson's confession. Id., slip op. at 9. But "because none of the admissions made by the appellant in his confession relate to any of the offenses of which the members found him guilty, we finding that the admission of appellant's confession of 7 February 2005 was harmless error beyond a reasonable doubt." Id., slip op. at 10.