Clouds on Stevenson's horizon

We've been closely following LCDR Eric Eversole's cert petition in Stevenson v. United States, No. 07-1397. Stevenson went to conference on Monday. Today the Supremes announced 10 cert grants from that conference. Stevenson wasn't among them. While there's a small chance that it was relisted, this development almost certainly means that on Monday the Supremes will announce they've denied cert in Stevenson, along with eight other military cert petitions that went to conference on Monday.

A Westerbergian analysis of Kennedy v. Louisiana

I'm a great fan of The Replacements. Apparently the Supremes are too. Because today they seemed to be singing the refrain, "You be me for a while and I'll be you."

As the No Man reported earlier today, the Supremes split 5-2-2 on whether to reconsider their decision in Kennedy v. Louisiana. Here's an excerpt from the five-justice majority's statement respecting the denial of rehearing:

[W]e need not decide whether certain considerations might justify differences in the application of the Cruel and Unusual Punishments Clause to military cases (a matter not presented here for our decision). Cf. Loving v. United States, 517 U. S. 748, 755 (1996).

Note that four of the five justices who signed onto that statement signed onto this statement in 1996:

[W]hen the punishment may be death, there are particular reasons to ensure that the men and women of the Armed Forces do not by reason of serving their country receive less protection than the Constitution provides for civilians.

Loving, 517 U.S. at 774 (Stevens, J., concurring).

So today four justices (Stevens, Souter, Ginsburg, Breyer) said that they don't have to answer a question that they appeared to answer twelve years ago.

Now consider this passage from Justice Scalia's statement respecting denial of rehearing, which was joined by Chief Justice Roberts:

JUSTICE KENNEDY speculates that the Eighth Amendment may permit subjecting a member of the military to a means of punishment that would be cruel and unusual if inflicted upon a civilian for the same crime. . . . It is difficult to imagine, however, how rape of a child could sometimes be deserving of death for a soldier but never for a civilian.

That passage was written by the same justice who opined in Weiss that while "no one can suppose that [protections similar to those in the UCMJ] against improper influence would suffice to validate a state criminal-law system in which felonies were tried by judges serving at the pleasure of the Executive," such a system is constitutionally permissible to try servicemembers. Weiss v. United States, 510 U.S. 163, 198 (1994) (Scalia, J., concurring).

Let's consider a hypothetical. We've previously noted that a Navy convening authority actually attempted to obtain a death sentence in a 1989 court-martial for rape without murder. United States v. Straight, 42 M.J. 244 (C.A.A.F. 1995). Let's suppose that a CA refers a stateside child rape case capitally and it results in a death sentence. Let's also hypothesize that the Supremes grant cert in the case and the four justices from Justice Stevens' Loving concurrence vote to invalidate the death sentence under Kennedy. Would Justice Scalia provide the fifth vote, applying his new found civilian-servicemember equality rationale? To quote Justice Scalia, "Do not believe it." Lawrence v. Texas, 539 U.S. 558, 604 (2003) (Scalia, J., dissenting).

Yet another factual error in Kennedy v. Louisiana

The No Man has a post below about today's developments in Kennedy v. Louisiana. I'll have more to say about those developments later. But for the moment, let's look at yet another factual mistake by the majority in the case. In his statement respecting denial of rehearing written on behalf of all the justices in the original majority, Justice Kennedy writes:

There are six individuals now subject to a final sentence of death under the UCMJ, see NAACP Legal Defense and Educational Fund, Inc., Death Row U. S. A. 66 (Winter 2008), all of whom committed offenses that involved the death of a victim.

I'm not sure what the word "final" means in that sentence (does he mean "approved"?). But regardless of what "final" means, the sentence is wrong. There are currently only five individuals sentenced to death under the UCMJ.

It's apparent why Justice Kennedy got that wrong -- he cites NAACP LDF's authoritative Death Row U.S.A. as the source of his numbers. But on page 1 of the Winter 2008 Death Row U.S.A. issue, the words, "As of January 1, 2008" appear in huge type. Had Justice Kennedy written that as of January 1, 2008, there were six individuals subject to a sentence of death under the UCMJ, he would have been right. But as we know, since January 1, 2008, the Navy-Marine Corps Court of Criminal Appeals set aside LCpl Wade Walker's death sentence, a decision that is now final (though he remains vulnerable to being resentenced to death). United States v. Walker, 66 M.J. 721, 757 (N-M. Ct. Crim. App. 2008) ("The sentence is set aside and a rehearing on sentence is authorized."). So when Justice Kennedy writes that there are six individuals "now" subject to military death sentences, he is wrong.

Of course this is a hyper technical point with absolutely no effect on the outcome. But the law is a hyper technical profession.

I'm not arguing that Justice Kennedy should have discovered that a military death sentence was set aside on appeal this year -- though with only six cases to check, it wouldn't have required much effort to make that discovery. But it should have been apparent that he was seeking to establish the state of affairs "now" on the basis of statistics that are exactly 10 months old. And it should have been apparent that that's not legitimate. Consider that on January 1, 2007, the Dow Jones Industrial Average closed at 13,264.82 and today, well, it didn't.

What lessons should we draw from this latest demonstration of the Supreme Court's fallibility? Everyone makes mistakes -- even brilliant Supreme Court justices and clerks. But are there less prosaic lessons to be drawn?

We immediately saw the two mistakes in Kennedy because we're specialists. But the Supreme Court is necessarily a generalist institution. In Isaiah Berlin's taxonomy, we're hedgehogs but Supreme Court justices are foxes. My guess is that specialists in other areas of the law -- admiralty, anti-trust, intellectual property, etc. -- see similar errors when the Supremes venture into their hedges. Which calls to mind once again Justice Jackson's famous quip: "We are not final because we are infallible, we are infallible only because we are final." Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J., concurring).

Of course, there is another possibility -- that military justice is a low-prestige area of the law that Supreme Court justices and clerks handle with less care than they handle other high-prestige specialty areas, like anti-trust or intellectual property. In other words, we're hedgehogs who inhabit a particularly ugly hedge. While I think the ugly hedge theory helps to explain the original mistakes in Kennedy, I doubt it applies to the mistake in today's opinion, which wasn't something that required any military justice expertise to avoid. And one would have thought that Justice Kennedy's chambers would have been extra-careful correcting the previous opinion -- though, for whatever reason, apparently it wasn't. So I'm inclined to chalk this one up to the "everyone makes mistakes" explanation.

Kennedy v. La. - No Joy for Louisiana in Military Justiceville

The SCOTUS denied rehearing in Kennedy v. Louisiana, as reported on SCOTUSBlog and the WSJ Law Blog (with a link to CAAFlog), a case in which our very own CAAFlog has played a prominent role. Here are links to prior CAAFlog coverage of Kennedy v. La., here, here, and here. Here are links to the two "statements" in the case, majority statement in denying rehearing and the statement of Justice Scalia and the Chief Justice. J. Scalia and the C.J. argued essentially that because the majority opinion was so bad, rehearing wasn't going to make a silk purse out of a sow's ear. Justices Alito and Thomas dissented from the denial of rehearing, but did not write separately. More from CAAFlog later on another potential factual gaff in the Kennedy statement.

Court Martial News

With all the bail out news, and trying to determine if my kids' education fund is actually worth anything, I have been derelict in my court martial news tracking. Here are some snippets, follow the links for more coverage:

• AP reports here that a Green Beret, Master Sgt. Joseph D. Newell, was released from PTC and restricted to Fort Bragg at the request of his counsel. Newell allegedly killed an Afghani civilian and cut off the dead Afghani's ear post-mortem. The AP report suggests that the government did not capitally refer the case, though reports from his arraignment make that seem less clear.
• The Art. 32 hearing in the case of 1st Lt. Michael C. Behenna ended last week. Behenna and a Sergeant in his Company, both with the 101st Airborne Div., are accused of shooting and killing an Iraqi detainee according to AP reports on the Art. 32 hearing, here. Again reports on whether the case could be capitally referred are conflicting.

BIG news: House of Representatives passes bill to expand servicemembers' access to SCOTUS

On Saturday, 27 September, the full House of Representatives took up the Equal Justice for Our Military Act, H.R. 3174. By a two-thirds majority voice vote, the House suspended the rules to take up the legislation directly on the floor and to pass it. There was a short debate during which the bill's sponsor -- Rep. Susan Davis -- spoke in favor of it and Rep. Lamar Smith, the ranking Republican on the House Judiciary Committee, argued against it. Rep. Smith opposed the bill going directly to a vote on the House floor without a hearing or committee report and noted that in a letter dated 6 February 2006, then-DOD General Counsel William J. Haynes II opposed the legislation. Norbert Basil MacLean III, who is the principal moving force behind the legislation, retorted that Rep. Smith had an opportunity to hold such hearings himself but didn't: "In the last Congress, Rep. Smith as chairman of the Subcommittee on Courts, Internet & Intellectual Property of the Judiciary Committee outright refused to permit hearings on this subject. The previous Equal Justice for Our Military Act, HR 1364 (109th Congress) sat in his committee for 1 year and 9 months with absolutely no action."

You can find the Congressional Record's account of the debate here and here.

On the Senate side, the Senate Judiciary Committee favorably reported a bill that is identical in all but name, S. 2052. But it remains to be seen when and if the full Senate will consider the legislation.

CAAF grants review of 2 Navy cases

CAAF granted review of two Navy cases on Wednesday. Here's the issue in one:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY EXCLUDING, PURSUANT TO M.R.E. 403, RELEVANT EVIDENCE OF A PRIOR HOMOSEXUAL RELATIONSHIP BETWEEN APPELLANT AND A CENTRAL GOVERNMENT WITNESS OFFERED BY THE DEFENSE TO SHOW BIAS AND MOTIVE TO MISREPRESENT ON THE PART OF THE GOVERNMENT WITNESS.

United States v. Collier, __ M.J. ___, No. 08-0495/NA (C.A.A.F. Sept. 24, 2008). NMCCA's unpublished opinion in the case is available here.

The other newly granted Navy case presents these issues:

I. WHETHER THE LOWER COURT ERRED IN HOLDING THAT THE MILITARY JUDGE DID NOT ABUSE HIS DISCRETION IN FAILING TO SUPPRESS APPELLANT'S STATEMENT TO CIVILIAN AUTHORITIES AS INVOLUNTARY.

II. WHETHER THE LOWER COURT ERRED IN HOLDING THAT THE EVIDENCE WAS LEGALLY SUFFICIENT TO AFFIRM APPELLANT'S CONVICTION.

United States v. Chatfield, __ M.J. ___, No. 08-0615/NA (C.A.A.F. Sept. 24, 2008). NMCCA's unpublished opinion in this case is available here.

Supremes docket pro se IFP military cert petition

During this year's CAAF orientation, we learned that CAAF has a practice of granting any supp in a case where the accused received confinement for at least 30 years. United States v. Swanson is a case in point. NMCCA affirmed his sentence to LWOP in this unpublished opinion. United States v. Swanson, No. NMCCA 200501593 (N-M. Ct. Crim. App. Nov. 13, 2007). CAAF granted review and summarily affirmed. United States v. Swanson, __ M.J. ___, No. 08-0280/NA (C.A.A.F. June 20, 2008) (summary disposition). Now the Supremes have docketed a pro se IFP cert petition in the case. Swanson v. United States, No. 08-6476. We have no information about the QP in the case.

NMCCA issues new published opinion

Where a command has lost the original record of trial, is it permissible to proceed on the basis of a photocopy of the original transcript? Yes, rules NMCCA today in a brief published opinion. United States v. Godbee, __ M.J. ___, No. NMCCA 200700073 (N-M. Ct. Crim. App. Sept. 25, 2008). "Based on the undisputed source and completeness of this duplicate, we will apply a presumption of regularity to its creation, authentication, and distribution." Id., slip op. at 3. Here's a link.

Joint Service Committee proposes creating new enumerated Article 134 child pornography offense [CORRECTED]

The Joint Service Committee has published its proposed changes to the Manual for Courts-Martial, which include the creation of a new enumerated Article 134 offense of "Child pornography." Here's a link to the full proposal.

Here are the proposed maximum sentences:

(1) Possessing, receiving, or viewing child pornography. Dishonorable
discharge, forfeiture of all pay and allowances, and confinement for 10 years.
(2) Possessing child pornography with intent to distribute. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 15 years.
(3) Distributing child pornography. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 20 years.
(4) Producing child pornography. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 30 years.

Among other provisions, the proposal also suggests MCM changes to facilitate the trial of civilians accompanying the military in the field.

Written comments must be received no later than 18 November 2008. The Joint Service Committee will hold a public meeting on the proposal on 30 October 2008 in Rosslyn.