Resource Alert: Naval Law Review Back Online

The latest issues of Naval Law Review are up on the Navy JAG website, here. A few months back we bemoaned their absence from the web, here, but all is well in Newport, RI and they are back up. I won't preview all the relevant articles, but ones that caught my attention (and CAAFlog's back in February) were:

Volume 56:

Wexler, Ian, A Comfortable SOFA: The Need for An Equitable Foreign Criminal Jurisdiction Agreement with Iraq (making an interesting argument about the Iraqi SOFA in light of recent events, see here and here).

Rush, Trevor, Mayfield, FISA, and the Fourth Amendment (arguing, I believe, for the constitutionality of FISA after Mayfield).

Volume 55:

Gonzalez, David M., The Continuing Fallout From Crawford

Lofland, Keith B., The Neglected Debate Over Sexual Assault Policy in the Military

Ahmad, Syed, The Unconstitutional Prosecution of the Taliban Under the Military Commissions Act (from the intro, the article argues that "the declaration that detained Taliban are unlawful enemy combatants is in violation of the law of war, and, as a result, Congress exceeded its authority under Article I, section 8, clause 10 of the U.S. Constitution by subjecting members of the Taliban to trial by a military commission."---or my alternate description, "How to become persona non grata at DoD OGC.")

Hudson, Faralick, and Sautter, Lightning But No Thunder: The Need For Clarity in Military Courts Regarding the Definition of Mental retardation in Capital Cases and for Procedures in Implementing Atkins v. Virginia.

H/T to LCDR Wexler

WARNING: The Surgeon General has determined that this is a non-military justice rant

Guess how many students will graduate from U.S. law schools this academic year. Go ahead, guess. Do you have a number in mind?

On Friday, I was astounded to learn from the ABA that the answer to that question is "nearly 44,000." That's 44,000 NEW law school graduates. That means that in 12 years, we will have half a million new law school graduates. How could our country possibly need that many law school graduates? What do all of those people do? 44,000 law school graduates suggests that around 132,000 of our fellow citizens are spending this year enrolled in a law school. Is that a sound use of Americans' time?

My state, Maryland, is in the midst of a horrible budget crisis. Maryland has two state-supported law schools, both in Baltimore. According to Map Quest, the two schools are 1.52 miles from each other. I assume (though I confess that I don't actually know this to be true) that each receives considerable support from Maryland's taxpayers. Should Maryland consolidate the schools or simply axe one of them? Does Maryland really need two state-supported law schools within walking distance of each other? I assume that eliminating one of them would result in substantial savings and I don't think that our collective society would suffer from a slight diminution in the number of new law school graduates spewing out into it each year.

The Conscience of a Lawyer

An anonymous comment this morning asked what I take to be a sincere question:

Being a legal officer, not a JAG, I am always interested to read this blog. The military defense attorneys I know (and I have worked with a lot of them) seem to relish in keeping criminals in the service through trickery and technicalities. Yet they wear the uniform and claim to be honorable officers. Can anyone explain this to me? Do they really want these people in the same service they are?

There is a very long answer to this question and a very short answer to this question.

The long answer is provided by a booked called The Conscience of a Lawyer by Professor David Mellinkoff. It was recommended to me many years ago by my mentor and one of the best lawyers I know, John Holt, now of DOJ. It's a book-length answer to the question, "How can you defend that guy?" And it explains the history, application, benefits, and faults of the Anglo-American legal tradition (and now professional obligation) that a defense counsel zealously protect his or her client's interests. Unfortunately this wonderful book appears to be out of print, but used copies are available through Amazon here or through abe.com here.

I can't find my copy of the book at the moment, which means it's either at the office or I've lent it to someone. (If the latter, I might have to buy one of those used copies.) So I'll have to do this from memory. Mellinkoff argues that our view of the defense counsel's duty is shaped by Lord Brougham's defense of his own defense of soon-to-be Queen Caroline when soon-to-be King George IV tried in 1820 to divorce her and prevent her from assuming the title of "Queen Consort." Lord Brougham explained, in language that would come to be accepted as a lawyer's ethical obligation:

An advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and, amongst them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others.

2 Trial of Queen Caroline 8 (London, Shackell & Arrowsmith 1820-21). [A good description of George IV's ultimately unsuccessful attempt to divorce Queen Caroline is available here.]

So part of the reason why defense counsel behave as they do is that the legal profession makes it their professional duty to zealously advance their clients' interests without regard to the interests of the larger society. Again, read Mellinkoff's book for a wonderful discussion of that duty, its benefits, and its costs. For current purposes, suffice it to say that our Anglo-American legal tradition views it as necessary to have a buffer between the crushing weight of the state and an individual citizen and that buffer is a zealous defense counsel. The defense counsel puts the government's case to the test. We trust the adversarial give and take between a zealous defense counsel and a zealous prosecutor to reveal the truth. Sometimes, despite this adversary system, an innocent accused will be crushed by the weight of the state. Sometimes, despite this adversary system, a guilty accused will go free. But the American system of government views the possibility of some innocent accused being crushed and some guilty accused going free as a regrettable but necessary side effect of the greater good that results from using the adversary system to discover the truth.

But there is a much simpler answer to the question of why MILITARY defense counsel represent their clients even while others might perceive that representation to be against the greater interest of their military service: because it is their military duty to do so.

In my capacity as a Marine Corps Reserve officer, I currently perform military reserve duties supporting the Navy-Marine Corps Appellate Defense Division. And in that capacity, I represent Marines and Sailors who have been convicted by court-martial or who are currently facing court-martial on appeals before the Navy-Marine Corps Court of Criminal Appeals, the Court of Appeals for the Armed Forces, and the Supreme Court. That is a position in the Office of the Judge Advocate General of the Navy. And Congress, the President, and the Judge Advocate General of the Navy have all expressly told me what my military duty is. Congress has said, "Appellate defense counsel shall represent the accused . . . ." Art. 70, UCMJ, 10 U.S.C. § 870. The President of the United States has also required an appellate defense counsel to "represent the accused." R.C.M. 1202(b)(2). And here's what the Judge Advocate General of the Navy has required in a regulation that binds all Marine and Navy judge advocates: "Nothwithstanding a judge advocate's status as a commissioned officer subject, generally, to the authority of superiors, a judge advocate detailed or assigned to represent an individual member or employee of the Department of the Navy is expected to exercise unfettered loyalty and professional independence during the representation consistent with these Rules and remains ultimately responsible for acting in the best interest of the individual client." JAGINST 5803.1C, Professional Conduct of Attorneys Practicing Under the Cognizance and Supervision of the Judge Advocate General, Rule 5.4(a) (9 Nov 04). So I have specifically been ordered NOT to consider the interests of the Marine Corps when representing a client, but rather to give my "unfettered loyalty" to my client. The Judge Advocate General has similarly ordered me to "follow the client's well-informed and lawful decisions concerning case objectives." Id., R. 1.2(c). And the Judge Advocate General has made clear that a judge advocate's "representation of a client does not constitute an endorsement of the client's political, economic, social, or moral views or activities." Id., R. 1.2(d).

So let me give you a hypothetical. Let's say I represent a client I absolutely know to be guilty. But, let's say, the key piece of evidence against my client was the product of an unconstitutional search and I know that if I file the right motion at trial or make the right argument on appeal, my factually guilty client walks. Now, as I've made clear here many times, I don't like the Fourth Amendment exclusionary rule. If I were ever somehow to find myself on the United States Supreme Court, I would vote for the proposition that the Fourth Amendment exclusionary rule isn't required by the United States Constitution. That said, if I were to fail to use the exclusionary rule on my factually guilty client's behalf or if I were to do so perfunctorily in the hope that the military judge or appellate court wouldn't rule on my client's behalf, I would literally be violating my military duty. Not only that, I would literally be committing a criminal offense under the UCMJ. Art. 92, UCMJ, 10 U.S.C. § 892. So raise the issue I would, and I'd fight like hell to win. And if I did win, I might even take some small measure of personal satisfaction for having performed my military duties well even while privately putting another check mark on my mental tally of why the exclusionary rule is a bad idea.

Similar statutes and Rules for Courts-Martial and regulations apply to all trial-level and appellate-level defense counsel in the United States military. So the next time you want to get mad at a defense counsel for performing his or her duty, don't. If you must get mad, get mad at Congress or the President. Or, better yet, realize that Congress, the President, and the Judge Advocate General of the Navy had very good reasons for assigning those duties to defense counsel and don't get mad at all.

Is timely post-trial review a right without a remedy?

CAPT A. R. Philpott, JAG, USN -- the great former director of Code 45 and then CO of Naval Justice School -- had a colorful phrase that's appropriate in this Halloween season: "A right without a remedy is a ghost that stalks the law." Is the right to timely post-trial review turning into such a specter?

AFCCA issued a published decision today. United States v. Preciado, __ M.J. ___, No. ACM 35871 (f rev) (A.F. Ct. Crim. App. Oct. 23, 2008). In Preciado, when the case initially went to AFCCA it ordered a new post-trial action because Senior Airman Preciado's defense counsel during the post-trial review was at least potentially conflicted and the conflict was never resolved. 793 days after AFCCA originally remanded the case to Kirtland Air Force Base, the record finally made it back to Bolling.

In ruling on a post-trial delay challenge, AFCCA assures us that
"[c]onvicted service members are entitled to a timely review and appeal of court-martial convictions." Preciado, No. ACM 35871 (f rev), slip op. at 4. AFCCA then subjected the delay to the four-part Moreno/Barker v. Wingo test.

AFCCA first concluded that "taking 793 days to return the record of trial to this Court after our initial decision on 29 December 2005 is facially unreasonable." Id., slip op. at 5. Next, AFCCA observed that "[t]he government provides absolutely no plausible explanation for this lengthy delay." Id. The court then noted that "[c]onsidering the delay in this case was beyond the appellant's control and his new defense counsel did make several attempts to resolve the issue, we find [the assertion-of-the-right-to-a-timely-review-and-appeal] factor weighs in favor of the appellant." Id. As to prejudice, the court concluded: "[C]onsidering that it took the convening authority at least 18 months longer than it should have to change the findings of guilty of an indecent assault to a finding of guilty of an indecent act, we find that the appellant has experienced some anxiety greater than that anxiety normally experienced by an appellant waiting for an appellate decision. The appellant remained registered as a sex offender in his home state far longer than he would have had his case been properly processed." Id., slip op. at 6.

Wow -- a clean sweep! 4-for-4. One doesn't see that every day. (And in the top of the 9th, it doesn't look like we'll see it in this year's Fall Classic -- sorry Phillies fans.) Since it's a clean sweep, it's not surprising that AFCCA concluded that "our balancing of the four Barker factors leads us to conclude that the appellant was denied his due process right to speedy post-trial review and appeal." Id., slip op. at 7. But wait, there's more. AFCCA continued that even if there hadn't been prejudice, it still would have found a due process violation because "[t]he post-trial processing delay in this case was clearly egregious and illustrates a complete disregard for the constitutional protections afforded to an accused during the post-trial process." Id. The court concluded: "Taking 793 days to complete new post-trial processing after this Court has remanded a case is definitely outrageous and cannot be tolerated." Id. And to show its intolerance for the post-trial delay, AFCCA responds by (drum roll please): doing nothing. The court held that changing the findings or sentence as approved by the CA is neither "appropriate nor warranted in this case." Id., slip op. at 8.

The court did drop a footnote suggesting that when the CA reduced the findings of guilty to an LIO in the second action, he was "likely" motivated at least in part by the post-trial delay. Id., slip op. at n.5. Oddly enough, the previous footnote in the case said the court would assume that the CA would have granted that same findings relief even without the post-trial delay. Id., slip op. at 6 n.4.

So what's the lesson to be drawn from Preciado? That post-trial delay is intolerable? Or that post-trial delay will actually be tolerated?

[Disclaimer: I played a very minor role as a member of the large team of SrA Preciado's appellate defense counsel and my name appears on the opinion as one of his counsel.]

October issue of Army Lawyer online

The October issue of the Army Lawyer is now online here. Military justice types will be interested in an article by Major Elizabeth Harvey of Code 46 called Sentencing Credit for Pretrial Restriction, which is available here.

USDC Grants Watada Injunction on 3 of 5 Charges

Judge Settle of the U.S. District Court for the Western District of Washington yesterday granted 1st Lt. Ehren Watada's request for an injunction against the government re-trying him on 3 charges related to his refusal to deploy to Iraq. See Watada v. Head, No. C07-5549BHS (W.D. Wash. Oct. 21, 2008).

I won't recount the year old history of the case, which CAAFlog has covered on four prior occasions (1, 2, 3, and 4). However, the collective CAAFlog reaction to an Art. III court intervening in an on-going court-martial case is best summed up with a quote from my learned and eloquent CAAFlog colleague DHS, "Holy Cow!!!"

On the merits, the Judge's reasoning looks destined for appeal and a showdown over Schlesinger v. Councilman, 420 U.S. 738 (1975) (doctrine of equitable jurisdiction and abstention). This summary seems particularly a subject for attack under Councilman, particularly in light of the Court allowing the government to proceed on two other charges

Therefore, the Court’s assertion of jurisdiction over Petitioner’s double jeopardy claims on Charge I and Charge II, Specifications 1 and 4 is proper because Petitioner has exhausted his available remedies in the military courts and Petitioner would suffer great harm if the Court declined to intervene prior to the convening of the court-martial.

Judge Settle ruled that the government could re-try Watada on two conduct unbecoming charges that were dismissed "without prejudice to ripen into prejudice upon completion of trial proceedings." Since the plea proceedings were never completed, the Court reasoned, there is no double jeopardy issue. Amazingly, Judge Settle even leaves the door open for Watada to return to the Art. III courts should the military decide to retry him on these two charges. See Watada, No. C07-5549BHS, slip op. at 18.

The Ever Changing Iraqi SOFA

News outlets, WSJ (AP), Reuters, Aljazeera (I am just the messenger), etc., are confirming today that the Iraqi government is sending the draft Iraqi SOFA back to U.S. negotiators with revisions concerning troop presence and, possibly, jurisdiction over US military personnel. As we previously reported here and here, the issue of jurisdiction over US military personnel for crimes committed in Iraq has been a big part of the on-going negotiations.

We also previously reported, here, that the issue of jurisdiction over crimes committed by US military/government contractors in Iraq seemed to be settled. An AFP story, here, indicated that the Prime Minister suggested that private security contractors (PSCs) working in Iraq would be subject to Iraqi law beginning on January 1, 2009. However, a WSJ story today makes me think that those prior statements were either limited to PSCs or limited to non-criminal law. Here is what the AP report said, via WSJ:

The agreement would call for U.S. troops to leave the cities by the end of June and withdraw from the country by Dec. 31, 2011 unless the government asked them to stay. The draft would also provide limited Iraqi jurisdiction over soldiers and contractors accused of major, premeditated crimes committed off post and off duty.

That statement isn't a model of clarity, but the same general statement was repeated in other reports by AFP and the BBC. BBC reported that the current draft agreement stated:

The pact is said to grant Iraqi judicial authorities limited ability to try US troops and contractors for major crimes committed off-duty or off-base - and only then if a joint US-Iraqi committee agrees.

We'll update this post as more information becomes available.

UPDATE at 1721, 21 Oct 08: Two sources, WaPo and CNN, confirm that one of the "hot-button issue[s]" in the Iraqi Cabinet's opposition to the SOFA is jurisdiction over US forces.

Update on Iraqi SOFA - Cushions May Get Harder

CAAFlog mentioned, here, the draft Iraqi SOFA making its way through the Iraqi political process. Though many news outlets are focusing on the demands made by a faction of the Iraqi parliament for certain US troop withdrawal timetables, I noticed that the same bloc was also making demands concerning jurisdiction over US military personnel. From the front page of the WaPo:

The Shiite bloc, which includes Prime Minister Nouri al-Maliki's Dawa party, also insists that Iraqi officials have a bigger role in determining whether U.S. soldiers accused of wrongdoing are subject to prosecution in Iraqi courts, said Sami al-Askeri, a political adviser to Maliki. That proposal has been resisted by the Pentagon.

Caveat LEXIS?

Uh-oh. Look at LEXIS's online version of United States v. Michael, 66 M.J. 78 (C.A.A.F. 2008) (2008 CAAF LEXIS 256). Notice that its synopsis of the case tells us that "BAKER, J., delivered the opinion of the Court, in which EFFRON, C.J., and STUCKY, J., joined. RYAN, J., filed a separate opinion concurring in part and in the result in which ERDMANN , J., joined." (emphasis added). Problem: LEXIS doesn't include the separate opinion, which you can read by looking at the case on CAAF's web site here.

This suggests to me that I've trusted LEXIS entirely too much in the past. It will substantially add to my research and writing time if I have to double check everything I find on LEXIS.

Have others seen similar problems on LEXIS or is this a highly atypical quality control lapse?

I don't have access to WESTLAW, but I'll look at the Military Justice Reporter tomorrow to see if the separate opinion appears there.

"DIG We Must"

This is my inaugural post as an official CAAFlog blogger. I appreciate the invitation to join the crew, and look forward to participating in the exchange of views.

Readers who grew up in New York may recall the saying that Con Edison used to display on barriers around its construction sites: "dig we must for a better New York," or words to that effect. In something of the same vein, it's not a surprise that the Court of Appeals DIGged [surely the past tense of DIG (dismissed as improvidently granted) cannot be "dug"] in Brown. DIG they must. If the fact on which the Court had specified an issue for review was wrong, it's no wonder they pulled the plug. This is, of course, the worst-case scenario for specifying an issue: sending the parties (and the Court itself) on what proves to be a wild goose chase.

There is no shortage of cases in which the Court has dismissed a grant as improvident:

"Upon reflection, the Court may also dismiss, e.g., United States v. Snyder, 46 M.J. 202 (1996) (mem.) (noting lack of factual basis for granted issue); United States v. Anderson, 41 M.J. 75 (1994) (mem.), vacate the grant as improvident, e.g., United States v. Hendon, 4 M.J. 256 (1978) (mem.), 6 M.J. 171, 172 (1979); United States v. Vick, 4 M.J. 235, 236 (1978) (mem.); United States v. Kennedy, 13 M.J. 465 (1982) (mem.); United States v. Chesney, 21 C.M.A. 358, 45 C.M.R. 132, 133 (1972); cf. United States v. Delacruz, 50 M.J. 221 (1998) (mem.) (3-1 decision) (dismissing specified issue as improvidently granted, and affirming), vacated, 50 M.J. 334 (1998) (mem.); United States v. Wilson, 46 M.J. 297 (1997) (mem.) (grant vacated without explanation); United States v. Counterman, 42 M.J. 81 (1995) (mem.) (grant vacated without explanation; petition denied); see also Eugene R. Fidell & Linda Greenhouse, A Roving Commission: Specified Issues and the Function of the United States Court of Military Appeals, 122 Mil. L. Rev. 117, 129 & n.63 (1988) (collecting cases), . . ."  [Rules Guide 12th ed.]

I have not done a survey recently, but my impression is that the number of specified issues remains quite low, unlike the one-in-three rate observed in the Court's early years. Is there a place for specified issues? I'm less troubled by the practice than I once was, but I still feel it should be quite a rare event for the Court to specify an issue. Do others share this view?

I wonder whether the issue specified in Brown was truly identified by the Court or the Central Legal Staff or whether it was a markup of something asserted perhaps unartfully in the Supplement. Perhaps one of our readers knows the answer.

The larger issue lurking behind Brown's specified-issue drama is that the DIG Order closes the door to Supreme Court review. Did the Supplement identify no issues?