TharThar Incident Courts-Martial

If anyone has any information on the TharThar courts-martial, beyond the short BBC and Jurist Legal News articles out here and here, I'd be interested in anything you could forward. Send it to my email at noman@caaflog.com. I found it interesting that the mainstream media really did not report these cases, which resulted in sentences in excess of 10 years for civilian killings in Iraq. Benighted system, you decide. Regardless of whether you agree with the result, the MilJus system seemed to work in these cases, though the negligent homicide verdict and sentence for the alleged ring leader seemed a little light compared to the others sentences and media reports---ahhh yes, media reports.

Government appeal in Chessani

Code 46 has filed an appeal challenging the military judge's ruling dismissing charges without prejudice in the prosecution of Lieutenant Colonel Chessani, as reported here by the North County Times.

SG's opposition to Stevenson cert petition

Here's a link to the SG's opposition to the cert petition in Stevenson v. United States, No. 07-1397.

Iraqi Civilian Deaths Court-Martial Coverage

Couple of news items in the past few weeks about potential courts-martial in incidents involving Iraqi civilian deaths.

First, MNF-I reports that two soldiers will face an Art. 32 hearing for the death of a former Iraqi detainee. According to the MNF-I press release, "The charges followed a criminal investigation into the death of Ali Mansur Mohamed, a detainee initially believed to have been released by [Coalition Forces] on or about May 16, 2008." Charges include pre-med murder and others. The Art. 32 for one will be held in Tikrit. The accused are a Staff Sergeant and First Lieutenant, the highest ranking soldier to face court-martial for a civilian killing in Iraq--at least that I know about.

Second, the on-going saga of three Camp Pendleton Marines accused of murder during the Battle for Fallujah made its way back into the news. The three are facing charges and an Art. 32 investigation for the 2004 killing, as reported here. Another former Marine, report here, is facing a late 2008 trial in US District Court. The circumstances of the killing reportedly came to light when one of the three facing court-martial charges revealed the incident during a security screening for a job at the US Secret Service (apparently an unsuccessful interview). We send our best to the Code 46 alum (and one of the most realistic App Gov't counsel I ever worked with) who will be the IO for one of the cases. Tough assignment, good luck.

To quote Train, meet Virginia

The CAAFlog clan is decamping to the Old Dominion for a week. As usual when I'm on the road, my Internet access will be diminished, at best. (When is Google releasing the Android?) A lot will happen while I'm gone, including the SG's response to the cert petition in Stevenson and the Judge Advocate General of the Navy's deadline for certifying Walker to CAAF. So I hope my CAAFlog colleagues will keep everyone informed until I'm back up on the net.

A quick look at Harris

As we noted yesterday, on Thursday, NMCCA issued an important and interesting opinion. United States v. Harris, __ M.J. ___, No. NMCCA 200401897 (N-M. Ct. Crim. App. Jul. 31, 2008). Chief Judge O'Toole wrote the unanimous opinion.

First for the less important inside baseball part that will interest NAMARA alumni. When NMCCA first decided Petty Officer Harris's appeal, Senior Judge Geiser was a member of the panel and actually wrote the opinion in the case. After the case was initially decided, the defense moved to disqualify Senior Judge Geiser and the other members of the panel because during a previous tour in the Administrative Law Division, Senior Judge Geiser had some connection to an ethics inquiry into the trial counsel's actions in Petty Officer Harris's case -- an investigation that ultimately cleared the TC and that concerned the same actions that gave rise to issues in Petty Officer Harris's appeal. CAAF then kicked the case back to NMCCA to look at the disqualification issue again with the benefit of the Administrative Law Division's files concerning the ethics investigation. United States v. Harris, 65 M.J. 485 (C.A.A.F. 2007). On remand, a new panel considered the disqualification issue and ultimately decided to reconsider the previous decision without ruling on disqualification.

NMCCA found that CAPT Geiser had minimal involvement with the ethics investigation into the TC from the Harris case:

Captain Geiser's personal role in the processing of the appellant's ethics complaint can be succinctly described as having included two actions: first, in his capacity as Division Director, he forwarded to the Rules Counsel the preliminary package assembled by Lieutenant Commander Hanna with a memo "concurring" with her recommendation that an ethics investigation should be conducted; and second, at the request of the Rules Counsel, Captain Geiser issued a letter, which he signed "by direction," appointing a senior officer in the geographic area of the complaint to conduct an investigation into its merits. Captain Geiser then detached from the Administrative Law Division and joined this court. His successor and the successor Rules Counsel received the results of the investigation months later and took final action, dismissing the appellant's complaint.

Harris, No. NMCCA 200401897, slip op. at 4-5.

While this might support a rejection of the attempt to disqualify Senior Judge Geiser, NMCCA declined to rule on that issue, NMCCA believed that to rule on the disqualification issue would require further fact-finding. Id., slip op. at 5 n.3. NMCCA observed, "Delaying disposition of this case while additional facts were gathered, however, is not in the best interests of justice." Id. So the court chose to reconsider the mertis of Petty Officer Harris's appeal, thus rendering the disqualification motion moot. Id., slip op. at 5.

With that entertaining preview out of the way, we can now get to the important main feature: NMCCA's ruling on a Crawford challenge to a drug lab report. Petty Officer Harris was the subject of a command directed urinalysis -- and rarely has there been greater reason to direct a urinalysis than provided by Harris's bizarre conduct that preceded his urinalysis. "Once obtained, the appellant's urine was forwarded to the Navy Drug Screening Lab, where it was tested in a batch containing 97 other samples from various commands, and three blind samples." Id., slip op. at 10. "Since each sample was identified by its assigned accession number, the laboratory technician testing them did not know the source command, the identity of the provider, or the basis on which the command had obtained the urine sample." Id.

The central question in Harris is whether it is better analogized to United States v. Magyari, 63 M.J. 123 (C.A.A.F. 2006) -- where CAAF held that a drug lab report resulting from a random urinalysis wasn't considered testimonial -- or United States v. Harcrow, 66 M.J. 154 (C.A.A.F. 2008) -- where CAAF held that a Virginia forensic lab's report on drug paraphernalia seized from Harcrow's residence was considered testimonial.

NMCCA ruled that even though Petty Officer Harris's urine was obtained through a command directed urinalysis, the situation was actually more like Magyari than Harcrow. NMCCA reasoned that unlike in Harcrow, the lab personnel testing Harris's urine were unaware that it was suspected to contain evidence of a crime -- to the lab personnel, it would have appeared no different than the random sample tested in Magyari. NMCCA also observed that Harris's command didn't initially view this as a criminal case. Rather, until Harris himself took a series of legally unwise steps that ultimately landed him in a court-martial, his command was trying to ad sep him.

NMCCA held "that the balance of evidence tips towards a conclusion that, despite the initial basis for obtaining the sample, and its label as 'probable cause,' the lab reports in this case remained a routine, objective cataloging of unambiguous factual matter by the prospective witnesses who prepared the reports. As such they were not 'testimonial' in nature as contemplated by Crawford, and their admission into evidence did not violate the appellant's Sixth Amendment Right to Confrontation." Id., slip op. at 12.

And for that published development of the law, the remand on the disqualification issue was worth it.

WWBJD IV: The Supremes' cert jurisdiction

For the latest installment in our What Would Bill James Do? series, we'll look at the actual experience with the Supreme Court's cert jurisdiction over CAAF decisions since it was established 25 years ago. This look will demonstrate that Biff is correct in arguing that expansion of cert jurisdiction to all cases that qualify for Article 66(c) review is extremely unlikely to help any given servicemember. That said, I still support legislation to open up a channel to the Supremes for every accused whose case is affirmed by a CCA since servicemembers should have the same infinitesimal chance to obtain relief from the Supremes that civilian defendants have.

Here are the numbers. Since passage of the Military Justice Act of 1983, the Supremes have granted plenary consideration to eight court-martial cases, resulting in a huge movement in the law in the prosecution's favor. The government won seven of the eight cases. This included two reversals of CAAF decisions favorable to a service member. In practice, even more significantly, the Supremes have thrice affirmed CAAF decisions favoring the government on grounds far more advantageous to the prosecution than those relied upon by CAAF. In the only court-martial case in which the Supremes heard oral argument and then ruled for the defense, the accused received no meaningful relief as a result.

As we'll discuss later, these eight cases don't exhaust the effects of the Military Justice Act of 1983, since several additional CAAF cases were summarily reversed and remanded, at least one of which actually resulted in sentence relief for the service member. I'll look at those below. But for now, let's look a little more closely at the eight plenary review cases.

The first case to receive plenary consideration from the Supremes under the Military Justice Act of 1983 was Solorio v. United States, 483 U.S. 435 (1987), which was the biggest victory for the government in a military justice case over the last quarter century. No doubt the same issue eventually would have reached the Rehnquist Court in a habeas challenge to a court-martial conviction, but the Military Justice Act almost certainly at least hastened the service connection requirement's demise. The next case was Weiss v. United States, 510 U.S. 163 (19994), which was probably a small net gain for the government compared to CMA's decision in the case as a result of the Supremes' adoption of a due process test for the military justice system less searching than that advocated by either Weiss's counsel or government counsel. See id. at 173-77. The third case was Davis v. United States, 512 U.S. 452 (1994), in which the Supremes upheld CAAF's rejection of a Miranda/Edwards challenge, but on grounds far more favorable to the prosecution than those upon which CMA had relied. The fourth case, Ryder v. United States, 515 U.S. 177 (1995), is the only Military Justice Act of 1983 case in which the Supremes have held oral argument in which they ruled for the defense. This is the case that invalidated the grounds on which Chief Judge Baum originally served on the Coast Guard Court, leading to his reappointment under different authority. But on remand, neither Petty Officer Ryder nor any of his fellow Coastguardsman whose cases were GVRed under Ryder received more favorable treatment during their second bite at the CGCCA apple. The next case, Loving v. United States, 517 U.S. 748 (1996), affirmed CAAF's affirmance of a military death sentence. The sixth, Edmond v. United States, 520 U.S. 651 (1997), affirmed CAAF's affirmance of the basis for Chief Judge Baum's reappointment to the Coast Guard Court. In the final two cases, the defense won at CAAF but the Supremes reversed and ruled for the government. In United States v. Scheffer, 523 U.S. 303 (1998), the Supremes reversed a CAAF decision holding that despite Military Rule of Evidence 707, an accused had a Sixth Amendment constitutional right to at least attempt to lay a foundation for an exculpatory polygraph's admissibility. And in Clinton v. Goldsmith, 526 U.S. 529 (1999), the Supremes smacked CAAF's hand for reaching into a forbidden jurisdictional cookie jar, reversing a favorable ruling for an Air Force major.

Whatever one thinks of the individual merits of these decisions -- and I agree with some and strongly disagree with others -- it's a record of incredible futility for the military defense bar. Note that in the only eight cases to receive plenary consideration under the Military Justice Act, not a single service member received any meaningful relief.

There is only one person of whom I am aware who actually received sentence relief as the result of a proceeding under authority of the Military Justice Act of 1983. In 1984, CMA affirmed the findings and sentence, which included a BCD and three months' confinement, of Spec4 Johnnie K. Goodson. United States v. Goodson, 18 M.J. 243 (C.M.A. 1984). The Supremes GVRed the case for further consideration in light of Smith v. Illinois, 469 U.S. 91 (1984). Goodson v. United States, 471 U.S. 1063 (1985). On remand, ACMR set aside the findings of guilty to four specs, affirmed the findings of guilty to other specs, and upon reassessment got rid of the BCD. United States v. Goodson, 22 M.J. 947 (A.C.M.R. 1986). Eighteen years after the Goodson GVR, the Supremes GVRed another court-martial case, this time for further consideration in light of Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). O'Connor v. United States, 535 U.S. 1014 (2002). On remand, AFCCA knocked out the findings of guilty to two of the many, many specs of which SrA O'Connor had been convicted and upheld the original sentence. United States v. O'Connor, No. ACM 33671, 2003 CCA LEXIS 251 (A.F. Ct. Crim. App. Oct. 29, 2003), aff'd, 60 M.J. 118 (C.A.A.F. 2004).

To the best of my knowledge, that's it. In a quarter of a century under the Military Justice Act of 1983, the defense bar has collectively wiped out the findings of guilty to six specs and gotten rid of one BCD. The Government, on the other hand, has reinstated one conviction, reinstated a BCD, dropped an officer from the rolls, and made the overall legal terrain considerably more friendly to the prosecution.

Given this history, a Jamesian analysis would suggest that expanding cert jurisdiction to reach more military justice cases would be more likely to produce a net gain for the government or have a neutral effect than to result in a net gain for the defense.

That said, I still support expanding cert jurisdiction so that servicemembers have comparable rights to civilian accused where, as with access to the Supreme Court, there is absolutely no military-specific rationale for a departure from the civilian norm. And I support this reform not because I think it will help the prosecution or because I hope against all available evidence that it will help the defense, but because I support the principle of equality. But it certainly wouldn't be irrational for someone to look at the actual experience under the Military Justice Act of 1983 and conclude that the game isn't worth the candle.

Finally, I think that a far more important reform would be the elimination of the subjurisdictional court-martial. Every individual -- military or civilian -- who is convicted by a special or general court-martial should have the right of access to an appellate court. (It doesn't have to be automatic, it could be by petition, but it should be a right.) It makes little sense that we give an unauthorized absentee who pleads guilty and who asks for a BCD an automatic right of appeal, but don't provide a guaranteed avenue of appeal to a sergeant major who fully contests a court-martial, is convicted against his pleas, and gets knocked down to an E-1. Eliminating the subjurisdictional court-martial conviction is a reform that I would also support in principle -- but also one that might actually help more than one servicemember per quarter century.

Vice Admiral vice Rear Admiral

My Naval Justice School classmate formerly Rear Admiral MacDonald is now Vice Admiral MacDonald.

Supreme update

My understanding is that the Supreme Court Clerk's office has given petitioner's counsel in Ryan v. United States 60 days to fix some formatting problems with the original cert petition. So it probably won't be docketed anytime soon. We previously discussed Ryan extensively here.

Here, belatedly, is a link to the cert petition in Thomas v. United States, No. 08-117, which we previously noted here.

We are now just three days away from the Acting SG's deadline for filing his response to the cert petition in Stevenson v. United States, No. 07-1397. Unfortunately, I'll be on vacation on Monday.

Here's a link to the web page where I expect the SG's response to show up once it's filed. Perhaps once it's up, someone can post a direct link to the response.

New published NMCCA opinion - Harris

NMCCA issued an important published opinion yesterday that was posted on NKO today: United States v. Harris, __ M.J. ___, No. NMCCA 200401897 (N-M. Ct. Crim. App. Jul. 31, 2008). [Note that the comments included in the opinion are in the version posted on NKO; they appear to have been made by the Court's Clerk, Mr. Troidl, whose initials are RHT.]

NAMARA alumni will be interested in the opinion's discussion of the recusal issue, but the opinion is far more important for its treatment of the Crawford issue.

I'll post more about it tonight or over the weekend.