I'm horribly confused. In United States v. Phillippe, 63 M.J. 307 (C.A.A.F. 2006), CAAF knocked down a three-year UA to a 49-day UA. CAAF ordered that the record be "remand[ed] to the United States Army Court of Criminal Appeals for reassessment under Sales, 22 M.J. at 307-08, or a rehearing may be ordered if appropriate." Id. at 312. When the case went back to ACCA, in an opinion available here, it concluded that "we cannot be reasonably certain of what sentence might have been adjudged and approved for a forty-nine day absence." United States v. Phillippe, No. ARMY 20040616, slip op. at 1 (A. Ct. Crim. App. Sept. 11, 2006). ACCA set aside Private Phillipe's sentence and returned the record to the CA for a "rehearing on the remaining period of absence without leave, if practical, and the sentence." Id., slip op. at 2. The case then drops off the radar. I can't find anything on the Web telling me what happened on remand to the CA or what happened at ACCA when the case returned to that court. But last Tuesday, CAAF set aside whatever ACCA did in a summary disposition that granted review of the following issue: "WHETHER THE ARMY COURT OF CRIMINAL APPEALS ABUSED ITS DISCRETION IN REASSESSING APPELLANT'S SENTENCE, HAVING ALREADY CONCEDED THAT IT COULD NOT BE REASONABLY CERTAIN WHAT SENTENCE MIGHT BE IMPOSED AT THE TRIAL LEVEL." United States v. Phillippe, __ M.J. ___, No. 05-0674/AR (C.A.A.F. Sept. 30, 2008). CAAF summarily concluded "that the Court of Criminal Appeals abused its discretion in reassessing Appellant's sentence." Id. CAAF reversed ACCA as to the sentence and kicked the case back to the Army JAG.
What could ACCA possibly have done in its third look at the case that resulted in that outcome? Army Lurker, if you're still out there, could you please explain this one?
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Sunday, October 05, 2008
ACCA analyzes Military Rule of Evidence 804(b)(6)
United States v. Marchesano, __ M.J. ___, No. ARMY 20060388 (A. Ct. Crim. App. Oct. 2, 2008), is yet another military child molestation case. And like many child molestation cases, it presents a number of hearsay issues. ACCA's published opinion in Marchesano explores a seldom-seen Military Rule of Evidence: MRE 804(b)(6), which provides that a statement is not excluded by the hearsay rule if the declarant is unavailable as a witness and the declarant's statement is "offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness."
In a case of first impression, ACCA sets out a four-part test that must be met for Rule 804(b)(6) to apply: "(1) the witness was unavailable through the actions of another; (2) the act of another was wrongful in procuring the unavailability of the witness; (3) the accused expressly or tacitly accepted the wrongful actions of another; and (4) the accused did so with the intent that the witness be unavailable." Marchesano, slip op. at 12. ACCA also holds that "preponderance of the evidence is the proper standard of proof at trial."
ACCA goes on to hold that the military judge erroneously applied Rule 804(b)(6) to admit a hearsay statement she should have excluded. But ACCA ultimately concludes that the error was harmless and upholds SGT Marchesano's conviction and sentence.
In a case of first impression, ACCA sets out a four-part test that must be met for Rule 804(b)(6) to apply: "(1) the witness was unavailable through the actions of another; (2) the act of another was wrongful in procuring the unavailability of the witness; (3) the accused expressly or tacitly accepted the wrongful actions of another; and (4) the accused did so with the intent that the witness be unavailable." Marchesano, slip op. at 12. ACCA also holds that "preponderance of the evidence is the proper standard of proof at trial."
ACCA goes on to hold that the military judge erroneously applied Rule 804(b)(6) to admit a hearsay statement she should have excluded. But ACCA ultimately concludes that the error was harmless and upholds SGT Marchesano's conviction and sentence.
Saturday, October 04, 2008
Ryan cert petition redocketed
We previously discussed the cert petition in Ryan v. United States, which challenged the Navy-Marine Corps Appellate Defense Division counsel's refusal to file a cert petition on behalf of a Marine corporal whose court-martial results were affirmed by NMCCA and CAAF. We later noted that the cert petition had been returned to counsel to correct some formatting errors.
The Ryan cert petition has now been refiled and docketed by the Court. Ryan v. United States, No. 08-422. I haven't seen the actual cert petition, so I don't know to what extent it departs from the original petition, which is available here.
The Ryan cert petition has now been refiled and docketed by the Court. Ryan v. United States, No. 08-422. I haven't seen the actual cert petition, so I don't know to what extent it departs from the original petition, which is available here.
Friday, October 03, 2008
New published ACCA decision
United States v. Marchesano, __ M.J. ___, No. ARMY 20060388 (A. Ct. Crim. App. Oct. 2, 2008).
We'll post more over the weekend on Marchesano and at least one other military justice development.
We'll post more over the weekend on Marchesano and at least one other military justice development.
Wednesday, October 01, 2008
New article on Article 119a
The September Army Lawyer is online with an article about the relatively new Article 119a. Major Kirsten M. Dowdy, Article 119a: Does It Protect Pregnant Women or Target Them?, Army Law., Sept. 2008, at 1.
NMCCA early warning system down
Navy Knowledge Online has been remapped. In the process, the link to NMCCA opinions appears to have been broken. Until (unless?) it's fixed, we won't be able to access NMCCA opinions before they're actually posted to the court's web site. If anyone learns of a new published NMCCA opinion, please let us know.
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:
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:
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).
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:
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.
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.
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