Equal Justice for United States Military Personnel Act picks up a new cosponsor

Yesterday Senator Clinton signed on as a co-sponsor of S. 2052, which would allow convicted servicemembers to seek cert regardless of whether CAAF granted or denied their petitions. Here's a link to S. 202's cosponsor page.

(h/t NBM3)

AFCCA joins the Magyari vs. Harcrow row

In a published opinion, an AFCCA panel split 2-1 today in holding that a lab tech's report identifying controlled substance metabolites in the urine of a suspect who provided a sample to law enforcement agents is not a testimonial statement for Crawford v. Washington purposes. United States v. Blazier, __ M.J. ___, No. ACM 36988 (A.F. Ct. Crim. App. Sept. 8, 2008).

The case basically presented the same issue as NMCCA's recent published opinion in United States v. Harris, __ M.J. ___, No. 200700531 (N-M. Ct. Crim. App. July 31, 2008), though Senior Judge Brand's majority opinion in Blazier didn't cite Harris. In Harris, NMCCA held that a drug lab's analysis of a command directed urine sample is more like the analysis of a random urinalysis at issue in United States v. Magyari, 63 M.J. 123 (C.A.A.F. 2006), than the targeted lab analysis of drug paraphernalia at issue in United States v. Harcrow, 66 M.J. 154 (C.A.A.F. 2008).

In Brazier, AFCCA similarly contrasted Magyari and Harcrow. And, similar to NMCCA's conclusion in Harris, the Brazier majority concluded that the lab technicians analyzing SrA Brazier's urine as part of a much larger batch without any knowledge that the individual who provided that particular sample was a suspect were more like the lab techs in Magyari than those in Harcrow.

Judge Jackson dissented. Relying on a Minnesota Supreme Court opinion, he didn't believe that the lab technicians' perspective was dispositive. Blazier, No. ACM 36988, slip op. at 4-5 (Jackson, J., concurring in part/dissenting in part) (citing State v. Caulfield, 722 N.W.2d 304 (Minn. 2006). He found that the primary purpose of the lab technicians' statements were to prove a past offense for purposes of a criminal prosecution and were thus testimonial.

Both Harris and Blazier are prologue to the Supreme Court's argument on 10 November in Melendez-Diaz v. Massachusetts, 07-591. The QP in Melendez-Diaz is "Whether a state forensic analyst's laboratory report prepared for use in a criminal prosecution is 'testimonial' evidence subject to the demands of the Confrontation Clause as set forth in Crawford v. Washington, 541 U.S. 36 (2004)." Melendez-Diaz may ultimately lead some military appellate court to reconsider Harris and Blazier. Of course, counsel for both Petty Officer Harris and SrA Blazier will have to try to keep those cases on direct appeal until Melendez-Diaz is decided in case the Supremes overturn Denedo, which might prevent military appellate courts from reversing their decisions in those cases if Melendez-Diaz turns out inconsistently. While a civilian criminal defendant could maneuver such a case to be held at the Supremes pending Melendez-Diaz's outcome, Petty Officer Harris and SrA Blazier have no such guarantee, since CAAF controls their access to the Supremes. If they file petitions for grant review and if CAAF denies them, their cases could become final before the Supremes rule in Melendez-Diaz, and they could then be left testing Melendez-Diaz's retroactive effect under Teague v. Lane if it then turned out in their favor and they had to challenge their court-martial conviction collaterally. That's yet another example of how the current quirky SCOTUS statutory cert jurisdiction over military justice cases disadvantages servicemembers compared to their civilian counterparts. Of course, as we previously noted, the Senate Judiciary Committee will be considering a bill this Thursday that would rectify that disparity.

CGCCA still UA from the Internet

It's been almost a month since I've been able to access CGCCA opinions. Does anyone have a link for the court's opinions that actually works? Does anyone know if the court has issued any published opinions since 11 August?

Supremes invite supplemental briefing in Kennedy v. Louisiana

As reported by SCOTUSblog this evening, the Supreme Court has invited counsel for Patrick Kennedy to file a brief addressing the state of Louisiana's rehearing petition in Kennedy v. Louisiana, 128 S. Ct. 2641 (2008). The Court also invited the Solicitor General to file a brief and invited Louisiana's counsel to reply. Here's a link to the Court's order.

Louisiana's rehearing petition and a previous brief from the Acting SG supporting it were based in large part on the Kennedy opinion overlooking a provision of the National Defense Authorization Act for Fiscal Year 2006 that authorized the death penalty for the rape of a child. We discussed the Acting SG's brief here and Louisiana's rehearing petition here.

Afghan SOFA - Exclusive UCMJ Jurisdiction Under Review?

The WaPo reported (two weeks ago) that, after a US led airstrike in Azizabad reportedly killed 90 civilians (a claim the US is investigating, see NYT here), the Afghan government was reviewing its SOFA with the US. I have finally found an unofficial copy of the agreement between the US and Afghanistan on LEXIS. For those interested, the cite is 2002 U.S.T. LEXIS 100. The relevant paragraphs on immunity for US forces make relatively clear that US military personnel have immunity similar to Embassy administrative and technical staff. The agreement goes on to state that the US shall have authority to exercise criminal jurisdiction over "US personnel."

While the agreement's wording is not a model of clarity, I'll excerpt the relevant portion for you below to draw your own conclusions about whether it grants the US authority to prosecute US military personnel, US civilian employees, and US government contractor personnel. The agreement uses the phrases US civilian personnel and contractor personnel elsewhere, so that may inform your interpretation of the term "US personnel." Diplomatic Note No. 202:

The Government of Afghanistan recognizes the particular importance of disciplinary control by United States military authorities over United States personnel and, therefore, Afghanistan authorizes the United States Government to exercise criminal jurisdiction over United States personnel. The Government of Afghanistan and the Government of the United States of America confirm that such personnel may not be surrendered to, or otherwise transferred to, the custody of an international tribunal or any other entity or state without the express consent of the Government of the United States.

CAAF remands case to NMCCA to relook at the military judge preventing the acccused from accessing the evidence during the Care inquiry

Airman Apprentice Jones was having some trouble making it through a providence inquiry into child pornography offenses. After the military judge granted an overnight recess, the defense counsel asked the military judge to allow Airman Apprentice Jones to review the items to assist him in the Care inquiry. The military judge declined and NMCCA emphatically rejected a challenge based on that ruling. United States v. Jones, No. NMCCA 200602320 (N-M. Ct. Crim. App. Dec. 12, 2007) (per curiam). NMCCA wrote:

The only issue raised in this otherwise uneventful guilty plea was whether or not, in the middle of the providence inquiry, the appellant should have been allowed to again view the contraband child pornography he illegally downloaded in order to refresh his recollection of its specific contents. The military judge did not abuse his discretion in denying the appellant additional access to this contraband as it was far from clear at the time that the appellant was unable to recall its contents. Indeed, after the overnight recess was granted to allow the appellant to regain his composure and refresh his recollection with the assistance of his defense counsel, he was fully capable of articulating the content of both the photographs and the movie serving as the basis for his pleas of guilty. His responses fully satisfied the military judge that the factual basis for his pleas was sufficient.

Id., slip op. at 5-6.

Despite the vehemence of NMCCA's opinion -- which noted at the outset that the court "strongly disagree[s]" with the appellant's challenge -- CAAF doesn't seem to be so sure.

In an order issued Thursday, CAAF set aside NMCCA's opinion and remanded the case to NMCCA for further consideration of "WHETHER THE MILITARY JUDGE ERRED BY DENYING APPELLANT THE OPPORTUNITY TO REVIEW THE EVIDENCE BEFORE HE PLED GUILTY AND WHETHER, IN LIGHT OF THAT DENIAL, APPELLANT'S PLEA WAS PROVIDENT." United States v. Jones, __ M.J. ___, No. 08-0335/NA (C.A.A.F. Sept. 4, 2008).

CAAF grants review of sentence reassessment issue

I've very excited about CAAF's grant of review in United States v. McCracken, __ M.J. ___, No. 08-0440/MC (C.A.A.F. Sept. 4, 2008), since the case holds the potential to improve the law regarding sentence reassessment vs. remanding for resentencing.

The two granted issues in McCracken are:

WHETHER THE LOWER COURT ERRED BY AFFIRMING A LESSER-INCLUDED OFFENSE BASED ON A THEORY OF CRIMINALITY NOT PRESENTED BY THE GOVERNMENT AT TRIAL.

WHETHER THE LOWER COURT ERRED IN REASSESSING APPELLANT'S SENTENCE INSTEAD OF REMANDING THE CASE FOR A SENTENCE REHEARING.

McCracken arises from two Marines in Iraq engaging in an ongoing non-coital sexual relationship. On one particular night, while in Sgt McCracken's rack in a barracks room where other Marines were trying to sleep, he apparently briefly penetrated his corporal paramour's vagina. One of the other Marines in the room reported the misconduct and Sgt McCracken soon found himself being investigated for rape. At a general court-martial, the members found him not guilty of rape but convicted him of indecent assault, adultery (the corporal was married) and drunk and disorderly conduct.

NMCCA set aside the fiding of guilty to indecent assault on factual sufficiency grounds and, by a 2-1 vote, upheld a finding of guilty to indecent acts instead. NMCCA then knocked the sentence down from confinement for a year, total forfeitures, a BCD, and confinement for six months, a BCD, and reduction to E-1. United States v. McCracken, No. NMCCA 200600484 (N-M. Ct. Crim. App. Jan. 29, 2008).

This is meaningful relief that will almost certainly result in some financial benefit to now-Private McCracken. But it isn't apparent to me how NMCCA purports to know that the members would still have adjudged a BCD if they didn't find him guilty of indecent assault, but found him guilty of indecent acts instead. I look forward to CAAF revisting the sentence reassessment criteria and perhaps adopting the valuable reassessment criteria that Judge Baker offered in his concurring opinion in United States v. Moffeit, 63 M.J. 40, 42-43 (C.A.A.F. 2006) (Baker, J., concurring).

The first granted issue is suggested by Judge Couch's dissent in McCracken. He agreed that the indecent assault specification must be set aside but didn't believe that NMCCA could affirm a finding of guilty to indecent acts instead. Judge Couch reasoned that affirming the finding of guilty to indecent acts would be inconsistent with the "Government's theory of liability presented at trial" as well as with "the actus reus element as provided by the military judge to the members." He explained: "Because the Government did not present a theory of indecent acts with another based upon sexual intercourse in the presence of others at trial, and the members were not instructed with elements of the offense consistent with that theory, I do not think we are free to affirm a conviction on that theory on appeal." Nor did Judge Couch believe that a BCD was appropriate for McCracken's offense, further undercutting the majority's view that it could be sure that the members would still have adjudged a BCD even if they hadn't found McCracken guilty of indecent assault, but had convicted him of indecent acts instead.

CAAF grants review of a self-incrimination issue

On Thursday, CAAF granted review of three naval cases. In Delarosa, CAAF granted review of this issue:

WHETHER (1) THE LOWER COURT ERRED IN ADOPTING A TEST TO DETERMINE WHETHER APPELLANT'S ASSERTION OF HIS RIGHT TO REMAIN SILENT WAS SCRUPULOUSLY HONORED THAT DIFFERS FROM THE TESTS SET FORTH BY THE UNITED STATES SUPREME COURT IN MICHIGAN v. MOSLEY, 423 U.S. 96 (1975) AND UNITED STATES v. WATKINS, 34 M.J. 344 (C.M.A. 1992); AND (2) WHETHER THE LOWER COURT ERRED IN HOLDING THAT THE MILITARY JUDGE CORRECTLY DENIED THE DEFENSE MOTION TO SUPPRESS APPELLANT'S CONFESSION MADE TO THE DETECTIVES AT THE NORFOLK, VIRGINIA, POLICE DEPARTMENT.

United States v. Delarosa, __ M.J. ___, No. 08-0390/NA (C.A.A.F. Sept. 4, 2008).

The case involves the death of Petty Officer Delaroas's five-month-old son. The members found him guilty of aggravated assault, while acquitting him of murder, maiming, and another aggravated assault specification.

NMCCA's unpublished decision in the case is available here. It begins inauspiciously by noting that "[t]he appellant's motion for oral argument is denied." Id., slip op. at 2 n.1. Both the majority and the concurring opinions characterize the issue the case presents as one of first impression. WHY would NMCCA reject oral argument in this obviously important case? I wonder what position Code 46 took on the oral argument request. Do any of our readers know?

The opinion then proceeds to adopt a bizarre method of referring to the victim in the case. It first identifies him by name as Petty Officer Delarosa's "5-month-old son, Miguel Delarosa (MD)." It then proceeds to refer to him by his initials. Presumably usually when an appellate decision refers to a victim by his or her initials, it's to protect the victim's privacy. That role isn't really accomplished when the opinion expressly identifies the victim by name. Nor, sadly, is there any need to protect Miguel's privacy since he died. Use of the initials thus becomes a strange dehumanizing shorthand for referring to a person. Again, why? (And for comparison purposes, the opinion identifies the two Norfolk detectives involved in the case only by the first initial of their last name.)

The central issue in the case involves Petty Officer Delarosa's actions when he was filling out a written Miranda advice form at a civilian police station before being interviewed. According to the civilian detectives' account, Petty Officer Delarosa had indicated an eagerness to discuss his son's death with the civilian police detectives. They proceeded to Mirandize him. After writing "YES" next to the questions asking about whether he understood his Miranda rights, Petty Officer Delarosa wrote "NO" next to the block asking if he wanted to waive those rights and make a statement. This left the detectives confused, since they understood that he wanted to make a statement. One of the detectives asked him why he wrote "NO" after saying he wanted to make a statement. Petty Officer Delarosa answered that he wanted to talk about his son's death, but wanted a command representative to be present. The detective responded that he didn't have a right to have a command representative present, but reminded him that he was entitled to consult with a lawyer. The detectives say that Petty Officer Delarosa never asked for a lawyer, but reiterated his request for a command representative to attend the interrogation. According to their testimony, the detectives told Petty Officer Delarosa that based on his answers on the form, they could no longer talk with him. They left him in the interrogation room and told him that if he changed his mind and wanted to talk with them, he should knock on the door.

One of the detectives testified that about 35 minutes later, he opened the door to the interrogation room and asked if Petty Officer Delarosa would be willing to take a polygraph. Petty Officer Delarosa said he would. About two hours later, a detective again opened the door and asked if Petty Officer Delarosa needed anything. He asked to use the bathroom. Petty Officer Delarosa never knocked on the interview door -- which the detectives had told him to do if he changed his mind and wanted to resume the interrogation.

In an exchange that followed Petty Officer Delarosa's request to use the head, he indicated that he wanted to talk to the detectives:

As Detective M was taking the appellant to the bathroom, the appellant asked if he could make a telephone call. Detective M replied that he could, but would have to wait until Detective M was finished with something that he was doing. When the appellant asked what Detective M was doing, the detective said that the appellant’s wife was at the police station and preparing to take a polygraph test. The appellant asked to see his wife and was told that he could after her polygraph test was completed. The appellant then told the detective that he now wanted to talk. Detective M indicated that the appellant would first have to be re-advised of his Miranda rights. The appellant stated that he had been confused about the form and wished to waive his rights and take a polygraph test.

Petty Officer Delarosa was readvised of his rights and he waived them all. Before taking a polygraph, he was again advised of his rights and again waived them all. After taking a polygraph, he confessed to having shaken his son, but claimed it was in an attempt to wake him. He denied shaking his son earlier in the evening to try to stop him from crying. He was then reinterrogated and made an audiotaped statement, in which he admitted shaking his son to try to stop him from crying and then shaking him again later to try to wake him up.

In the defense's version of the interrogation, Petty Officer Delarosa expressly asked for a lawyer but was told by one of the detectives that he wouldn't give a "fucking lawyer" to a "baby killer." The military judge in the case, now NMCCA Chief Judge O'Toole, rejected the defense's version of the events and ruled that under the detectives' account, Petty Officer Delarosa's statements were admissible.

Despite Petty Officer Delarosa writing "NO" when asked if he wanted to waive his Miranda rights, both the trial judge and NMCCA ruled that this response was ambiguous in light of his previous indication that he wanted to make a statement. NMCCA continued that once the detectives determined that his willingness to make a statement was contingent upon having a command representative present, they properly stopped their interrogation. NMCCA then phrased the decisional issue in the case as "whether the police 'scrupulously honored' the appellant's right to remain silent when, approximately 35 minutes after he invoked his right to remain silent, they reinitiated contact with the appellant to ask if he was willing to take a polygraph regarding his son's death."

NMCCA then applied the Supreme Court's holding in Michigan v. Mosley, 423 U.S. 96 (1975), and held that the police had scrupulously honored Petty Officer Delarosa's invocation of his right to remain silent.

The court adopted this legal test: "We join the federal circuits in holding that the constitutionality of a subsequent police interview depends not so much on its subject matter or on the length of time between interviews, but rather on whether the police, in conducting the interview, sought to undermine the suspect's resolve to remain silent."

Applying it in this case, the court reasoned that the passage of time before the police reinitiated was not "of primary importance" in answering the decisional issue. NMCCA instead adopted what it called a "flexible approach that takes account of all relevant circumstances." Reviewing the evidence, NMCCA concluded that there was "no evidence of ongoing and repeated efforts to wear down the appellant's resistance."

Judge Couch separately concurred in the result. He observed that CMA's opinion in United States v. Watkins, 34 M.J. 344 (C.M.A. 1992), recognized that "police legitimately may inquire whether a suspect has changed his mind about speaking to them" and that nothing "in the Constitution erects obstacles that preclude police from ascertaining whether a suspect has reconsidered his original decision." Judge Couch characterized the detectives' request to polygraph Petty Officer Delarosa as such an inquiry to determine if he would reconsider his previous invocation of his right to remain silent.

The most significant factor for Judge Couch was that "it is clear from the record the appellant ultimately decided to waive his right to remain silent after he learned that his wife was at the police station to take a polygraph test of her own." Finally, he concluded that Petty Officer Delarosa's ultimate admissions "came after a significant period of time since his invocation of silence."

Regardless of the ultimate outcome, at least CAAF's grant suggests that the final decision will be the product of deliberation following oral argument at which the judges and the parties' counsel can explore the important issues that this case presents.

Equal Justice for United States Military Personnel Act rescheduled for markup

As we have previously discussed, Senate Bill 2052 and House Bill 3174 would permit servicemembers to seek cert even if CAAF denies their petitions for review. The Senate Judiciary Committee has rescheduled its markup of S. 2052. As indicated here, the markup will be on 11 September 2008.

One indication of the bill's continued importance is the pending cert petition in Stevenson v. United States, No. 07-1397. The issue in the case is whether the military has jurisdiction to court-martial a former servicemember on the permanent disabled retired list who is receiving no retirement pay from the military, but is rather receiving disability compensation from the Department of Veterans Affairs. Here's a link to the cert petition. In his opposition to the cert petition (here's a link), the Acting SG argued that the Supremes have no jurisdiction to grant cert on this issue because CAAF had granted review on a different issue in the case. Since at least October 2006, the office of the Solicitor General has argued that 28 U.S.C. § 1259 and Article 67a of the UCMJ limit the Supremes' jurisdiction to the particular issues that CAAF grants; the SG has argued that the Supremes' cert jurisdiction doesn't extend to other issues in the case that CAAF didn't choose to review. That argument appears to be wrong; the relevant portion of § 1259 provides that "[d]ecisions of the United States Court of Appeals for the Armed Forces may be reviewed by the Supreme Court by writ of certiorari in the following cases . . . (3) Cases in which the Court of Appeals for the Armed Forces granted a petition for review under section 867(a)(3) of title 10." Note that the statute speaks of cases in which CAAF granted a petition. Stevenson is a case in which CAAF granted a petition, so it appears to be reviewable. Relying on Gene Fidell's definitive analysis of this issue, Stevenson reply brief effectively rebuts the Acting SG's narrow interpretation of § 1259 and Article 67a.

But if the Acting SG's interpretation were correct, it would radically reduce the number of military justice cases that fall within the Supremes' cert jurisdiction. Under the Acting SG's interpretation, the Supremes would have no cert jurisdiction in the many, many cases in which CAAF grants a petition but no particular issue in the case and then summarily affirms. The main reason CAAF appears to do so is to open the door to the Supremes. But, according to the Acting SG, CAAF hasn't actually succeeded in doing so.

Even if S. 2052 were to become law, it would be too late to resolve that issue for purposes of Stevenson, which has already been distributed for the Supremes' 29 September conference. But definitively rejecting the Acting SG's cramped interpretation of § 1259 and Article 67a for future cases would be yet another benefit of S. 2052's enactment.

Upcoming training opportunities

A reminder: on Tuesday, Mr. DeCicco will be conducting an orientation session for new appellate counsel. While the session is specifically geared for newbies, I found last year's to be quite useful for those with more experience as well. The session will in CAAF's courtroom starting at 0900.

The Judge Advocates Association and CAAF will once again be presenting an appellate advocacy symposium. Here's a link to the flyer. This year's symposium will be held on 3 October at the George Mason University School of Law from 0830 to 1600.

The headline act alone is worth the price of admission ($60): former CAAF Chief Judge Walter T. Cox III will be speaking about effective appellate advocacy. Judge Cox was a fabulous judge and is quite the raconteur, so his presentation is not to be missed. Also on the schedule is Robert P. Charrow talking about effective legal writing, a military justice update from TJAGLCS's faculty, a panel of CCA judges, and moi.