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Wednesday, October 15, 2008
Interesting article
Here's a link to a page from NIMJ's web site where you can access a very interesting article by Gene Fidell about CAAF's practices and jurisprudence. Eugene R. Fidell, Zen and the Jurisprudence of the United States Court of Appeals for the Armed Forces, 46 Mil. L. & L. of War Rev. 393 (2007).
Tuesday, October 14, 2008
Garner's work is never done
From Garner: "It is rank superstition that [and] cannot properly begin a sentence. . . . Schoolteachers may have laid down a prohibition against the initial and to counteract elementary-school students' tendency to begin every sentence with and. As Follett and Amis point out, the same superstition has plagued but. The very best writers find occasion to begin sentences with and . . . ." Bryan A. Garner, Garner's Modern American Usage 44 (2003). He similarly offers, "Like And and But, So is a good word for beginning a sentence." Id. at 733. And he observes, "There's an odd myth that it's poor grammar to begin a sentence with because. . . . [T]he 'rule' has never had any basis in grammar, and good writers often have occasion to put the cause before the effect . . . ." Id. at 89.
From my second grader's homework instructions tonight: "Remember that sentences do not begin with the words and, so, but, because and to." To err is human . . . .
From my second grader's homework instructions tonight: "Remember that sentences do not begin with the words and, so, but, because and to." To err is human . . . .
Grants
CAAF granted review of two cases on Thursday -- one a Marine Corps case and the other from the Army.
Here's the issue in the Marine case: "WHETHER APPELLANT SUFFERED PREJUDICE, FOR PURPOSES OF ARTICLE 59(a), UCMJ, WHERE THE CHARGE OF RAPE OF A CHILD, WITHDRAWN AND DISMISSED 'WITH PREJUDICE' AT APPELLANT'S FIRST COURT-MARTIAL, WAS REINSTITUTED AT APPELLANT'S REHEARING." United States v. Smead, __ M.J. ___, No. 08-0376/MC (C.A.A.F. Oct. 9, 2008). Here's a link to NMCCA's unpublished opinion in the case. United States v. Smead, No. NMCCA 200201020 (N-M. Ct. Crim. App. Jan. 10, 2008). And here's my favorite sentence from that opinion: "Despite the Government's concession on this issue, we find this assignment of error to be without merit, see United States v. Madigan, 54 M.J. 518, 521 (N.M.Ct.Crim.App. 2000), and will not discuss it further." Id., slip op. at 9-10. (That sentence concerning a UMC issue, not the issue granted by CAAF.)
The other granted case presents this issue: "WHETHER, AFTER FINDING THE EVIDENCE FACTUALLY INSUFFICIENT TO SUPPORT A FINDING OF GUILTY TO CHARGE III AND ITS SPECIFICATION (RESISTING APPREHENSION), THE COURT OF CRIMINAL APPEALS COULD AFFIRM A FINDING OF GUILTY TO A LESSER INCLUDED OFFENSE ON A THEORY NOT PRESENTED TO THE TRIER OF FACT." United States v. Miller, __ M.J. ___, No. 08-0580/AR (C.A.A.F. Oct. 9, 2008). ACCA's unpublished opinion in the case is available here. United States v. Miller, No. ARMY 20060224 (A. Ct. Crim. App. Mar. 24, 2008).
Here's the issue in the Marine case: "WHETHER APPELLANT SUFFERED PREJUDICE, FOR PURPOSES OF ARTICLE 59(a), UCMJ, WHERE THE CHARGE OF RAPE OF A CHILD, WITHDRAWN AND DISMISSED 'WITH PREJUDICE' AT APPELLANT'S FIRST COURT-MARTIAL, WAS REINSTITUTED AT APPELLANT'S REHEARING." United States v. Smead, __ M.J. ___, No. 08-0376/MC (C.A.A.F. Oct. 9, 2008). Here's a link to NMCCA's unpublished opinion in the case. United States v. Smead, No. NMCCA 200201020 (N-M. Ct. Crim. App. Jan. 10, 2008). And here's my favorite sentence from that opinion: "Despite the Government's concession on this issue, we find this assignment of error to be without merit, see United States v. Madigan, 54 M.J. 518, 521 (N.M.Ct.Crim.App. 2000), and will not discuss it further." Id., slip op. at 9-10. (That sentence concerning a UMC issue, not the issue granted by CAAF.)
The other granted case presents this issue: "WHETHER, AFTER FINDING THE EVIDENCE FACTUALLY INSUFFICIENT TO SUPPORT A FINDING OF GUILTY TO CHARGE III AND ITS SPECIFICATION (RESISTING APPREHENSION), THE COURT OF CRIMINAL APPEALS COULD AFFIRM A FINDING OF GUILTY TO A LESSER INCLUDED OFFENSE ON A THEORY NOT PRESENTED TO THE TRIER OF FACT." United States v. Miller, __ M.J. ___, No. 08-0580/AR (C.A.A.F. Oct. 9, 2008). ACCA's unpublished opinion in the case is available here. United States v. Miller, No. ARMY 20060224 (A. Ct. Crim. App. Mar. 24, 2008).
Monday, October 13, 2008
Some thoughts on the new NMCCA courtroom
Twenty-three miles north of where I sit are two sublime sports stadiums, each peculiarly well-suited to its function: Orioles Park and Camden Yards and whatever the Ravens' stadium is called this week. The older of the two, Orioles Park at Camden Yards, was built in 1992. If it didn't singlehandedly end the era of the duel-use sports stadium, it at least drove a stake through that blighted era's heart. If only it had also prevented the dual-use courtroom.
The disappointing new courtroom in the Washington Navy Yard is designed for use as both a trial-level and appellate courtroom. And it suffers due to its lack of a focused purpose. While I haven't seen an actual oral argument in the courtroom, if it is configured for appellate arguments as it was the day I saw it, then I think it will have the widest gap between the podium and the bench of any appellate courtroom I've ever seen. (See a picture of the courtroom on the second page of this link.) And that is a horrible blow to functionality. The ideal oral argument isn't an oration, but a conversation. The old tiny, intimate NMCCA courtroom on the first deck of the Washington Navy Yard's Forge Building was perfectly configured to promote conversation. But in the new courtroom, with its huge well, the advocate may feel the need to use a bullhorn to be heard at the bench. (Even the Building 200 courtroom used in the interim between Building 111 and Building 58 had a well-worn charm that is absent from its successor.)
Another blow to functionality concerns the building's exterior. Architecturally, the building is pleasantly plain. Its subtle architectural features -- including a small brick cornice and soldier course brick arches above the windows on the front elevation -- are even more understated because of the uniform white-wash exterior. And the traffic light sticking out from the building's east elevation is delightfully quirky in a naval space-saving kind of way. But it isn't at all apparent to me how a member of the public actually gets into the building. I had an appointment each of the two times I've been there, and I was barely able to get in. According to the JAGMAG article about the courtroom, "Facility requirements included both public and restricted entry." It seems to have failed to meet the former criterion.
Apart from these functionality problems, the courtroom is architecturally incoherent in the most literal sense of the word. At the University of Virginia there is a story -- probably apocryphal -- that attempts to explain why the University's chapel is a revival Gothic stone structure while all the buildings around it are neo-classical brick edifices. There was a mix-up in building materials intended for the UVA chapel, so the story goes, and Sage Chapel at Cornell University -- which is made of brick while all the buildings around it are stone structures. Well perhaps someone mixed up the plans for the NMCCA courtroom's ceiling with those intended for another courtroom and some jurisdiction has a brand-new modern industrial courtroom with a classical ceiling. Because the interplay between the new NMCCA's courtroom and its overhead is so discordant that the most charitable possible explanation is a mix-up in the building plans. You can see some of this effect in the picture available through the link above, though you've got to sit in the courtroom to appreciate the full effect. From the floor to about nine feet up the walls, the courtroom is traditional but boring. Unfortunately, nothing in the courtroom is evocative of a naval experience -- this could be a county courtroom in just about any state in the Union. What a missed opportunity. Worse still, the marble in the courtroom -- no doubt intended to give the room a classy feeling -- looks like something out of a mid-range tract McMansion. It suggests not class, but an attempt at classiness. But from nine feet or so up, the room is exposed industrial -- with ceiling supports and HVAC equipment visible from the traditional courtroom below.
I suspect that functionality concerns -- so overlooked in the building's exterior -- suddenly took over in the courtroom itself and explain the architect's bizarre choices. The traditional courtroom is good for acoustics while the exposed industrial look was probably designed to allow light into the room from the skylights in the ceiling above. But these were hardly the only available choices. The very pleasant and functional AFCCA courtroom has a stark white drop ceiling made of metal panels formed with faux plaster design elements. And even with the louvered window shades partially closed during oral arguments, the AFCCA courtroom is brighter than the NMCCA courtroom with its large skylights. So a traditional courtroom with a cost-effective traditional ceiling was an option. Alternatively, the ACCA courtroom has a modern feel, with its wood-and-glass bench. (See an artist's rendition here.) If a major goal of the new NMCCA courtroom's design was to bring in natural light from above, then a courtroom designed like ACCA's could have fit well with the exposed ceiling supports and HVAC ducts. But unfortunately, no concern for symmetry was displayed.
The failure of NMCCA's courtroom is even more disappointing in light of the stunning architectural successes sprinkled throughout the Washington Navy Yard -- the Navy's oldest base and former Naval Gun Factory that now provides office space for thousands of naval servicemembers and bureaucrats. Consider, for example, the Washington Navy Yard's "town center" in Building 21. The building was once used to make huge guns for Navy warships -- and an enormous hook on a track that once slid molten metal across the production floor now looms over the dining area, giving the whole place a dynamic feel. Maybe one of the problems with the Building 58 renovation is that the structure was originally a barracks, later a storehouse, and finally a museum before its conversion to the "Appellate Center of Excellence." (Unfortunately, no, I'm not making up that name -- and certainly no one will be tempted to call it an architectural center of excellence.) So perhaps a cause of the courtroom's -- and entire building's -- lack of drama is the lack of drama in the building's history. But more could have been done to give the courtroom a sense of purpose and place.
With the money spent, it's probably too late to attempt to harmonize the courtroom's discordant elements -- or even to reduce their clash. But some things can be done to improve functionality. Signs could be placed on the building's exteriors to give visitors a clue how to gain entry. And while I'm not sure whether electronics require the podium to remain anchored where it is in the picture, if not, it should be pushed far closer to the bench. And surely some nautical elements can be added to give the courtroom a naval feel.
But even with such improvements, the Navy Yard's new dual-use courtroom will still disappoint. While I haven't been to the current CGCCA courtroom (though I once attended a CGCMR argument at Buzzards Point), NMCCA's courtroom as currently configured is the least successful of the military appellate courtrooms I have visited.
The disappointing new courtroom in the Washington Navy Yard is designed for use as both a trial-level and appellate courtroom. And it suffers due to its lack of a focused purpose. While I haven't seen an actual oral argument in the courtroom, if it is configured for appellate arguments as it was the day I saw it, then I think it will have the widest gap between the podium and the bench of any appellate courtroom I've ever seen. (See a picture of the courtroom on the second page of this link.) And that is a horrible blow to functionality. The ideal oral argument isn't an oration, but a conversation. The old tiny, intimate NMCCA courtroom on the first deck of the Washington Navy Yard's Forge Building was perfectly configured to promote conversation. But in the new courtroom, with its huge well, the advocate may feel the need to use a bullhorn to be heard at the bench. (Even the Building 200 courtroom used in the interim between Building 111 and Building 58 had a well-worn charm that is absent from its successor.)
Another blow to functionality concerns the building's exterior. Architecturally, the building is pleasantly plain. Its subtle architectural features -- including a small brick cornice and soldier course brick arches above the windows on the front elevation -- are even more understated because of the uniform white-wash exterior. And the traffic light sticking out from the building's east elevation is delightfully quirky in a naval space-saving kind of way. But it isn't at all apparent to me how a member of the public actually gets into the building. I had an appointment each of the two times I've been there, and I was barely able to get in. According to the JAGMAG article about the courtroom, "Facility requirements included both public and restricted entry." It seems to have failed to meet the former criterion.
Apart from these functionality problems, the courtroom is architecturally incoherent in the most literal sense of the word. At the University of Virginia there is a story -- probably apocryphal -- that attempts to explain why the University's chapel is a revival Gothic stone structure while all the buildings around it are neo-classical brick edifices. There was a mix-up in building materials intended for the UVA chapel, so the story goes, and Sage Chapel at Cornell University -- which is made of brick while all the buildings around it are stone structures. Well perhaps someone mixed up the plans for the NMCCA courtroom's ceiling with those intended for another courtroom and some jurisdiction has a brand-new modern industrial courtroom with a classical ceiling. Because the interplay between the new NMCCA's courtroom and its overhead is so discordant that the most charitable possible explanation is a mix-up in the building plans. You can see some of this effect in the picture available through the link above, though you've got to sit in the courtroom to appreciate the full effect. From the floor to about nine feet up the walls, the courtroom is traditional but boring. Unfortunately, nothing in the courtroom is evocative of a naval experience -- this could be a county courtroom in just about any state in the Union. What a missed opportunity. Worse still, the marble in the courtroom -- no doubt intended to give the room a classy feeling -- looks like something out of a mid-range tract McMansion. It suggests not class, but an attempt at classiness. But from nine feet or so up, the room is exposed industrial -- with ceiling supports and HVAC equipment visible from the traditional courtroom below.
I suspect that functionality concerns -- so overlooked in the building's exterior -- suddenly took over in the courtroom itself and explain the architect's bizarre choices. The traditional courtroom is good for acoustics while the exposed industrial look was probably designed to allow light into the room from the skylights in the ceiling above. But these were hardly the only available choices. The very pleasant and functional AFCCA courtroom has a stark white drop ceiling made of metal panels formed with faux plaster design elements. And even with the louvered window shades partially closed during oral arguments, the AFCCA courtroom is brighter than the NMCCA courtroom with its large skylights. So a traditional courtroom with a cost-effective traditional ceiling was an option. Alternatively, the ACCA courtroom has a modern feel, with its wood-and-glass bench. (See an artist's rendition here.) If a major goal of the new NMCCA courtroom's design was to bring in natural light from above, then a courtroom designed like ACCA's could have fit well with the exposed ceiling supports and HVAC ducts. But unfortunately, no concern for symmetry was displayed.
The failure of NMCCA's courtroom is even more disappointing in light of the stunning architectural successes sprinkled throughout the Washington Navy Yard -- the Navy's oldest base and former Naval Gun Factory that now provides office space for thousands of naval servicemembers and bureaucrats. Consider, for example, the Washington Navy Yard's "town center" in Building 21. The building was once used to make huge guns for Navy warships -- and an enormous hook on a track that once slid molten metal across the production floor now looms over the dining area, giving the whole place a dynamic feel. Maybe one of the problems with the Building 58 renovation is that the structure was originally a barracks, later a storehouse, and finally a museum before its conversion to the "Appellate Center of Excellence." (Unfortunately, no, I'm not making up that name -- and certainly no one will be tempted to call it an architectural center of excellence.) So perhaps a cause of the courtroom's -- and entire building's -- lack of drama is the lack of drama in the building's history. But more could have been done to give the courtroom a sense of purpose and place.
With the money spent, it's probably too late to attempt to harmonize the courtroom's discordant elements -- or even to reduce their clash. But some things can be done to improve functionality. Signs could be placed on the building's exteriors to give visitors a clue how to gain entry. And while I'm not sure whether electronics require the podium to remain anchored where it is in the picture, if not, it should be pushed far closer to the bench. And surely some nautical elements can be added to give the courtroom a naval feel.
But even with such improvements, the Navy Yard's new dual-use courtroom will still disappoint. While I haven't been to the current CGCCA courtroom (though I once attended a CGCMR argument at Buzzards Point), NMCCA's courtroom as currently configured is the least successful of the military appellate courtrooms I have visited.
Sunday, October 12, 2008
WaPo article posits that the Bush Administration is softening its opposition to the ICC
Here's a link to today's Washington Post article on the Bush Administration's stance toward the ICC and Darfur.
Saturday, October 11, 2008
Congressional Research Service issues report on SCOTUS jurisdiction over CAAF cases
A Congressional Research Service report called, "Supreme Court Appellate Jurisdiction Over Military Court Cases," issued on 6 October, is available here.
(h/t: NBM3)
(h/t: NBM3)
SG waives response in Ryan
The Solicitor General (no longer -- to quote Jon Lovitz -- "Acting" following Senate confirmation on 2 October 2008) has waived the United States' right to respond to the military cert petition in Ryan v. United States, No. 08-422, which we previously discussed here.
Thursday, October 09, 2008
CAAF already decides a case argued this term
Greetings from the road.
On 22 September, CAAF heard oral argument in the case of United States v. Gogue, No. 07-0826/AR. Now the decision in that case is already in the books -- or, to be more accurate, on the Web.
There was both a granted issue and a specified issue in Gogue. The granted issue was: "WHETHER, PURSUANT TO 18 U.S.C. § 3585, APPELLANT IS ENTITLED TO CREDIT TOWARD THE CONFINEMENT ADJUDGED BY A COURT-MARTIAL FOR CONFINEMENT AT STATE FACILITIES SERVED FOR CHARGES UNRELATED TO HIS COURT-MARTIAL SENTENCE AND NOT CREDITED AGAINST ANOTHER SENTENCE." The specified issue was: "WHETHER, UNDER UNITED STATES v. WILSON, 503 U.S. 329 (1992), MILITARY JUDGES LACK THE AUTHORITY TO CALCULATE AND APPLY PRETRIAL CONFINEMENT CREDIT."
CAAF has already decided the case. On Tuesday, it released a summary disposition providing: "On consideration of the briefs and oral arguments of the parties on the granted issues (66 M.J. 287 (C.A.A.F. 2008)), it appears that the parties now agree that Appellant is entitled to 89 additional days of confinement credit. The Court adopts the position of the parties. Accordingly, it is ordered that the decision of the United States Army Court of Criminal Appeals is set aside, and the record is returned to the Judge Advocate General of the Army for remand to the United States Army Court of Criminal Appeals to provide meaningful relief." United States v. Gogue, __ M.J. ___, No. 07-0826/AR (C.A.A.F. Oct. 7, 2008) (mem.).
On 22 September, CAAF heard oral argument in the case of United States v. Gogue, No. 07-0826/AR. Now the decision in that case is already in the books -- or, to be more accurate, on the Web.
There was both a granted issue and a specified issue in Gogue. The granted issue was: "WHETHER, PURSUANT TO 18 U.S.C. § 3585, APPELLANT IS ENTITLED TO CREDIT TOWARD THE CONFINEMENT ADJUDGED BY A COURT-MARTIAL FOR CONFINEMENT AT STATE FACILITIES SERVED FOR CHARGES UNRELATED TO HIS COURT-MARTIAL SENTENCE AND NOT CREDITED AGAINST ANOTHER SENTENCE." The specified issue was: "WHETHER, UNDER UNITED STATES v. WILSON, 503 U.S. 329 (1992), MILITARY JUDGES LACK THE AUTHORITY TO CALCULATE AND APPLY PRETRIAL CONFINEMENT CREDIT."
CAAF has already decided the case. On Tuesday, it released a summary disposition providing: "On consideration of the briefs and oral arguments of the parties on the granted issues (66 M.J. 287 (C.A.A.F. 2008)), it appears that the parties now agree that Appellant is entitled to 89 additional days of confinement credit. The Court adopts the position of the parties. Accordingly, it is ordered that the decision of the United States Army Court of Criminal Appeals is set aside, and the record is returned to the Judge Advocate General of the Army for remand to the United States Army Court of Criminal Appeals to provide meaningful relief." United States v. Gogue, __ M.J. ___, No. 07-0826/AR (C.A.A.F. Oct. 7, 2008) (mem.).
Tuesday, October 07, 2008
New issue of JAG magazine online
I'll be out of town for a couple of days, so I want to give you something to read while I'm gone. The new issue of JAG magazine (or, as I like to call it, JAGMAG) is available here. It includes an article on the newly renovated building that now houses the Navy-Marine Corps Court of Criminal Appeals and the two naval appellate divisions. I recently had a chance to see the new NMCCA courtroom (a picture of which is on page 18 of the JAGMAG) and it's far from an architectural triumph. I'll post some thoughts about the new courtroom this coming weekend.
In addition to being away tomorrow through very late Thursday, I'll be on the road Sunday and maybe Saturday as well. I hope my colleagues keep you informed in the meantime. The good news is that I plan to buy a G1 when they come out later this month, so this may be the last time I'm off the Web just because I'm traveling.
In addition to being away tomorrow through very late Thursday, I'll be on the road Sunday and maybe Saturday as well. I hope my colleagues keep you informed in the meantime. The good news is that I plan to buy a G1 when they come out later this month, so this may be the last time I'm off the Web just because I'm traveling.
Court Martial News - Monday, now Tuesday, Roundup
I was sorting through all of my News Alerts today and thought I would post some of the more interesting stories. The "D" in my DSL connection stands for Disney right now, so excuse any post that may be way behind the times.
- Alleged fragging court-martial of Sgt. Alberto Martinez to begin on Tuesday. I had to link to this story from WRAL in Raleigh-Durham, here. See if you can spot the three major substantive/factual inaccuracies in the story. Other reporting here.
- Another pseudo-frag court-martial alleges that Sgt. Joseph Bozicevich killed two superior NCOs. The case is headed to a likely Art. 32 hearing at Fort Stewart. See AP report here.
- The Weemer and Nelson courts-martial took another turn as the government delayed the Nelson case in an attempt to, or at least as defense counsel described it, force Nelson to testify against Weemer. See AP report here. The two are charged with murdering Iraqi detainees in a house during the Battle for Fallujah. The alleged ring leader of the incident, Sgt. Luis Nazario, was acquitted after Weemer and Nelson refused to testify in his MEJA prosecution. While defense counsel are protesting the delay as a means to "intimidate" Nelson into testifying or face obstruction of justice charges, the situation was precipitated by the non-cooperation of the two after repeated grants of immunity.
- Army Specialist Stephan A. Ribordy was sentenced on Thursday, Oct. 2, as reported by Stars and Stripes here. Ribordy pled guilty to acting as a lookout and assisting in discarding the bodies of four Iraqi detainees. The alleged shooters in the incident, senior NCOs from Ribordy's Company, are charged with premeditated murder. S&S described the eight month/BCD sentence as follows:
The judge sentenced Ribordy to five years’ confinement but under a pretrial agreement — in which Ribordy agreed to testify in future trials in the case — the sentence was reduced to eight months.
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