Cox Commission sneak peek

According to this report in Wednesday's Stars and Stripes, the Cox Commission will recommend a UCMJ amendment to criminalize animal cruelty. Kent Harris, Panel suggests adding animal cruelty to UCMJ, Stars & Stripes, June 24, 2009. (Obviously the article gets some things wrong, like appearing to confuse the Cox Commission with NIMJ. The article also muddles the distinction between the UCMJ and presidentially enumerated Article 134 offenses, meaning that its suggestion that the Cox Commission will recommend a UCMJ amendment as the vehicle for prohibiting animal cruelty may be inaccurate.)

NMCCA issues unpublished opinion in Moreno

NMCCA today issued a lengthy unpublished opinion affirming Cpl Moreno's conviction and dishonorable discharge (the max authorized sentence under CAAF's opinion) on remand. United States v. Moreno, No. NMCCA 200100715 (N-M. Ct. Crim. App. June 23, 2009). We've posted the opinion here.

NMCCA's Ross opinion

Yesterday, we discussed CAAF's grant of a Walters/Seider issue in United States v. Ross. We have now received a copy of NMCCA's opinion in the case, which we've posted here. United States v. Ross, No. NMCCA 200800313 (N-M. Ct. Crim. App. Dec. 4, 2008) (per curiam).

This case effectively refutes some sniping in the comments section suggesting that the CCAs haven't been sufficiently attentive to Walters/Seider issues. This case was originally submitted on the merits to NMCCA, which specified the Walters/Seider issue.

New CAAF grant

CAAF granted review today on the following issue: "Whether the military judge abused her discretion in denying the defense motion to suppress all evidence from Appellant's home." United States v. Cowgill, __ M.J. ___, No. 09-0376/AF (C.A.A.F. June 23, 2009). AFCCA's unpublished decision in the case is available here. United States v. Cowgill, No. S31404 (A.F. Ct. Crim. App. June 23 2009). The AFCCA panel had split 2-1 on the validity of the search of SSgt Cowgill's home. Judge Helget's opinion for the court, joined by Judge Brand, concluded that the military judge didn't abuse her discretion by concluding that the civilian magistrate had a sufficient basis to issue the search warrant. The majority also concluded that even if there was inadequate probable cause, the fruits of the search would still be admissible under the Fourth Amendment exclusionary rule's good faith exception. Judge Jackson dissented from both of those holdings.

Sweet justice, yes; tweet justice, no

Yesterday's Stars and Stripes included this article reporting that Military Judges' Benchbook honcho COL Ted Dixon is drafting instructions for military judges to deliver to members panels concerning use of Internet resources and social networking sites while the case is pending. Kent Harris, Jury instructions to include rules on use of new media, Stars & Stripes, June 21, 2009. The article also reports that "[i]n the meantime, some judges are already using their own versions. In recent courts-martial in Italy, Army and Air Force judges have warned jurors not to talk about the trial with others using any form of communication."

h/t Phil Cave's Court-Martial Trial Practice blog

Two new Walters/Seider issues

When I was writing an extended post about remedies for Walters/Seider violations on Friday, I was unaware that on that very day, CAAF had granted review of two Walters/Seider issues arising from naval cases.

The granted issue in United States v. Ross, No. 09-0242/MC, is : "WHETHER, BY FINDING APPELLANT GUILTY OF THE CHARGE AND SPECIFICATION EXCEPT FOR THE WORDS 'ON DIVERS OCCASIONS,' THE MILITARY JUDGE RENDERED AMBIGUOUS FINDINGS NOT CAPABLE OF REVIEW UNDER ARTICLE 66, UCMJ, 10 U.S.C. § 866." I can't find NMCCA's opinion in the case anywhere online -- including in the formerly comprehensive but now useless Navy Knowledge Online. If anyone has a copy, please e-mail it to us at caaflog@caaflog.com. The wording of the issue makes clear that this is a judge-alone case, so it could present the remedy isuse we discussed regarding Wilson.

The granted issue in United States v. Trew, No. 09-0414/NA, is "WHETHER, IN LIGHT OF UNITED STATES v. WALTERS, 58 M.J. 391 (C.A.A.F. 2003) AND UNITED STATES v. SEIDER, 60 M.J. 36 (C.A.A.F. 2004), THE CHARGE AND SPECIFICATION MUST BE DISMISSED WITH PREJUDICE, BECAUSE THE LOWER COURT COULD NOT CONDUCT A PROPER APPELLATE REVIEW UNDER ARTICLE 66 AND DOUBLE JEOPARDY PREVENTS A REHEARING. SEE UNITED STATES v. WILSON __ M.J. ___ (C.A.A.F. 2009)." NMCCA's opinion in the case is published at 67 M.J. 603. We briefly discussed Trew here. Like Wilson, Trew was a judge-along court-martial. So if CAAF rules for the defense and CDR Battin is still on the bench, it could also provide CAAF with an opportunity to remand the case for clarification as a remedy for a Walters violation in a judge-alone case.

This week in military justice -- 21 June 2009 edition

This week at the Supremes: There are no expected military justice developments at the Supremes this week.

This week at CAAF: CAAF will hold oral argument in the twin Aviano cases of United States v. Ashby, No. 08-0770/MC, and United States v. Schweitzer, No. 08-0746/MC, on Wednesday. The many issues in the cases are synopsized here. The argument will be a melancholy event since Judge Everett was to have sat on the court for both cases. I don't know who will sit in his place; it could be another CAAF senior judge, acting Chief Judge Erdmann could ask Chief Justice Roberts to designate an Article III judge to sit with CAAF pursuant to Article 140(f), or the court could sit with just four judges, which would give an advantage to the government. (If just four judges sit, a tie vote affirms the lower court's judgment, which would mean that the government would need only two votes to prevail rather than three; essentially, the missing judge is spotted to the party that prevailed below, in these cases the government.)

This week at the CCAs: On Thursday, NMCCA will set en banc to hear the government's second Article 62 appeal in the case of United States v. Wuterich. The issues to be argued deal with the existence of a qualified reporter's privilege. The court will hear argument from counsel for the United States and for CBS. Counsel for SSgt Wuterich (of which I am one) haven't taken a position on the issues being argued and respectfully declined NMCCA's offer to let them participate in the argument. A synopsis of the case is available here. On Friday, AFCCA will hear oral argument in United States v. Streete. The issues to be argued are:

I. WHETHER EITHER THE MILITARY JUDGE OR APPELLANT'S TRIAL DEFENSE COUNSEL ALLOWED SPILLOVER TO UNDULY PREJUDICE APPELLANT'S RIGHT TO A FAIR TRIAL.

II. WHETHER APPELLANT'S SENTENCE THAT INCLUDED EIGHT YEARS CONFINEMENT AND A DISHONORABLE DISCHARGE IS HIGHLY EXCESSIVE.

III. WHETHER APPELLANT'S CONVICTION TO ADDITIONAL CHARGE II AND ITS SPECIFICATION, ALLEGING THE VIOLATION OF A "NO CONTACT" ORDER IS LEGALLY AND FACTUALLY SUFFICIENT.

Flyspecking Denedo

The current Supreme Court term began with the Court wrestling with the implications of a military justice statute it had previously overlooked. See Kennedy v. Louisiana, 129 S. Ct. 1 (2008). How well did the Supremes understand the military justice system in Denedo? The answer appears to be pretty well, but not perfectly.

Let's start with the majority opinion.

The first inaccuracy seems to arise from imprecise use of language rather than a lack of understanding of the system. Justice Kennedy's opinion for the Court explains, "In exchange for his plea the convening authority referred respondent's case to a special court-martial, §819, which, at the time, could not impose a sentence greater than six months' confinement." Denedo, slip op. at 2. Of course, even before the National Defense Authorization Act for Fiscal Year 2000 increased the length of confinement that a special court-martial could adjudge, special courts-martial could (and often did) impose sentences greater than six months' confinement -- in a case with an enlisted accused, they could impose a sentence of six months' confinement, plus a bad-conduct discharge, plus forfeiture of 2/3 pay per month for 6 months, plus reduction to pay grade E-1.

Second, in discussing Clinton v. Goldsmith, the Denedo majority opinion states: "Following [Major Goldsmith's] conviction, Congress enacted a statute authorizing the President to drop convicted officers from the rolls of the Armed Forces." Denedo, slip op. at 7. Actually, authorization to drop convicted officers from the rolls existed long before Maj Goldsmith's conviction; in fact, section 10 of the UCMJ as enacted in 1950 provided that "the President may at any time drop from the rolls of any armed force any officer who has been absent without authority from his place of duty for a period of three months or more, or who, having been found guilty by the civil authorities of any offense, is finally sentenced to confinement in a Federal or State penitentiary or correctional institution." 81 P.L. 506, § 10; 64 Stat. 107, 146. What the National Defense Authorization Act for Fiscal Year 1996, 110 Stat. 325, actually did was expand the grounds for dropping an officer from the rolls to include confinement for at least six months resulting from a court-martial conviction.

Third, the Denedo majority opinion rather obviously mischaracterizes what happened in Clinton v. Goldsmith. The Denedo majority opinion states, "Goldsmith sought extraordinary relief as authorized by the All Writs Act to enjoin the President from removing him from the rolls. The AFCCA denied relief, but the CAAF granted it." Denedo, slip op. at 7. In fact, Maj Goldsmith never petitioned AFCCA to enjoin the President from dropping him from the rolls. It's strange that the Denedo majority would make this mistake, because Justice Souter's opinion for the Court in Clinton v. Goldsmith emphasizes this point:

Goldsmith did not immediately contest the proposal to drop him, but rather petitioned the Air Force Court of Criminal Appeals for extraordinary relief under the All Writs Act, 28 U.S.C. § 1651(a), to redress the unrelated alleged interruption of his HIV medication during his incarceration. The Court of Criminal Appeals ruled that it lacked jurisdiction to act, and it was in Goldsmith's appeal from that determination that he took the first steps to raise the issue now before us, an entirely new claim that the Air Force's action to drop him from the rolls was unconstitutional.

526 U.S. 529, 532-33 (1999).

Fourth, the Denedo majority doesn't seem to understand the distinction between the court-martial and the convening authority. The majority quotes Article 67(c)'s language that CAAF has authority over "matters of law" connected to "the findings and sentence as approved by the convening authority . . . ." Denedo, slip op. at 10. Explaining how that provision is satisfied in this case, the majority opinion states, "Respondent's Sixth Amendment claim presents a 'matte[r] of law' with respect to the [guilty] findings . . . as approved by the [special court-martial] . . . ." Id. (all alterations except final ellipsis in original). So the Court substituted "as approved by the [special court-martial]" for "as approved by the convening authority." But, of course, it isn't the special court-martial that approves its own findings and sentence. Rather, it's the convening authority--in Denedo's case the Commanding Officer of USS JOHN F. KENNEDY--who approves the sentence (and who sometimes acts on the findings).

The dissent also got a couple of little things wrong. First, Chief Justice Roberts' dissenting opinion states, "The CCAs provide direct, record-based review of court-martial judgments, but they may only review cases referred by the judge advocate general, who in turn refers only those cases in which specific sentences are imposed. 10 U.S.C. §§866(b), (c)." Denedo dissent, slip op. at 3. But a Judge Advocate General doesn't refer only cases resulting in a specific sentence. Rather, a Judge Advocate General can -- and, as AFCCA's recent decision in United States v. Harvey demonstrates, sometimes does -- refer cases with lesser sentences to a CCA under the authority granted by Congress in Article 69(d)(1).

The other minor glitch in the dissent occurs in its discussion of DuBay hearings. The dissenting opinion states, "Instead, the CCAs will have to resort to the procedures invented by United States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967), under which a new convening authority will refer a case to a new court-martial, and task various military personnel who have no prior familiarity with the case to conduct an out-of-court evidentiary hearing on the merits of the petitioner's claim." Denedo dissent, slip op. at 10. First, of course, DuBay hearings aren't necessarily sent to a "new convening authority"; the case is often remanded to the same convening authority who convened the original court-martial. Nor is the case necessarily referred to a new court-martial. I can't think of a time when I've seen a new court-martial created to handle a DuBay hearing. Has anyone else? Finally, I have no idea what the dissent means by "an out-of-court evidentiary hearing." The whole point of a DuBay hearing is to have an in-court evidentiary hearing.

These errors are all minor; overall, the Court did a good job dealing with our rather idiosyncratic system. Still, it's striking how many even small errors are in a decision of an institution with the stature and brainpower of the Supreme Court.

SG's deadline extended in Wuterich

SCOTUS has extended the SG's deadline for filing a response to the Wuterich v. United States cert petition, No. 08-1133, until 5 August 2009. [Familiar disclaimer: I'm petitioner's counsel of record in Wuterich.]

Thinking about House, Denedo, and review of subjurisdictional contested convictions

The Navy JAG's recent ruling on the House petition for new trial was satisfying and probably just. It was also legally incorrect.

LT House was found guilty by a general court-martial of conduct unbecoming an officer for alleged sexual misconduct, as well as two other offenses. One of the convictions was set aside on Article 69 review, which LT House received because his sentence didn't qualify his case for an Article 66 appeal to the Navy-Marine Corps Court of Criminal Appeals. Several years after LT House was convicted, it was discovered that the Army Crime Lab examiner who conducted the testing in his case was falsifying reports. The Army Crime Lab's subsequent retesting of the evidence from LT House's case revealed that, contrary to the original DNA examiner's report and testimony, the semen on a condom didn't match LT House's DNA. Rather, LT House was actually excluded as a potential source of the semen. The retesting also disproved other DNA evidence upon which the prosecution relied at LT House's trial.

The threshold legal issue facing the Navy JAG when considering LT House's petition for new trial was whether such a petition may be granted even if it isn't filed within Article 73's two-year deadline. The Navy JAG ruled that the two-year deadline is subject to equitable tolling. The opinion states:

There is a dearth of military case law pertaining to equitable tolling; however, a recent example can be found in United States v. Luke, 63 M.J. 60 (C.A.A.F. 2006), another case involving deficiencies in Mr. Mills' DNA processing procedures. Although the court did not expressly invoke the doctrine of equitable tolling, the fact that the court acted upon a petition for new trial that was submitted outside the prescribed two-year statutory period indicates that the doctrine was applied.

United States v. House, slip op. at 3 n.2.

There are a few problems with this passage. First, Luke isn't a petition for new trial case. Rather, it was before CAAF on a petition granting review of NMCCA's affirmance of the case under Article 66. Contrary to the Navy JAG's opinion, CAAF didn't "act[]upon a petition for new trial" in Luke. Second, the opinion overlooks United States v. Van Tassel, 38 M.J. 91, 93 (C.M.A. 1993), which actually was a petition for new trial case where a court tolled Article 73's filing period. Third, and most importantly, the opinion fails to consider the Supreme Court's opinion in Bowles v. Russell, 551 U.S. 205 (2007), and CAAF's opinion in United States v. Rodriguez, 67 M.J. 110 (C.A.A.F. 2009).

In Bowles, the Supreme Court emphasized that "[w]e have long and repeatedly held that the time limits for filing a notice of appeal are jurisdictional in nature." 551 U.S. at 206. Bowles emphasized "the jurisdictional significance of the fact that a time limitation is set forth in a statute." Id. at 210. A court has no power to extend such a statutory deadline because a "Court has no authority to create equitable exceptions to jurisdictional requirements." Id. at 214.

But for Article 73, a Judge Advocate General has no authority to set aside a finding of guilty. On the contrary, Article 76 forbids a Judge Advocate General from setting aside a final finding of guilty except as provided by Article 73. Article 73's two-year statutory deadline would, therefore, appear to have the same jurisdictional effect on a Judge Advocate General's power to grant a petition for new trial as a statutory deadline has on an appellate court's jurisdiction to rule on an appeal. Yet the Navy JAG's ruling in House fails to even mention Bowles, much less wrestle with its implications for a Judge Advocate General's authority to equitably toll Article 73's two-year filing deadline.

Having found the power to equitably toll the petition for new trial filing deadline, the Navy JAG proceeded to use it. The opinion reasons that within the two-year petition for new trial period, the United States government suspended the same examiner who conducted the DNA testing in LT House's case because he permitted contamination in his testing process. House, slip op. at 3. (The examiner's even greater acts of misconduct appaerntly weren't discovered until a year and a half later, past the two-year deadline for LT House to file a petition for new trial.) Yet the U.S. government failed to advise LT House of the examiner's suspension. Id. The Navy JAG's opinion reasons:

Had the accused received timely Brady notice, he would have been able to submit a petition for new trial within the prescribed limitations. As the government was responsible for the delay in communicating the requisite information, the government should not be permitted to strictly enforce the two-year limitation. Accordingly, I find that the two-year statutory limitation on the filing period for a new trial was equitably tolled as of January 2004 [when Mr. Mills was initially suspended].

Id.

The Navy JAG proceeded to rule that the retesting of the DNA evidence provided a basis for invalidating LT House's conviction to the conduct unbecoming charge. He concluded, "In light of the significant differences between the new DNA evidence and the DNA evidence presented at trial, the arguments and theories that would have been available to the defense with knowledge of the new evidence, and all other pertinent facts, I conclude that this evidence would probably produce a substantially more favorable outcome for the accused." Id., slip op. at 5.

But that still left one finding of guilty intact -- conspiracy to make a false statement. The Navy JAG set aside that finding of guilty as well. But his rationale for doing so is unpersuasive. LT House was charged with and convicted of conspiring with two other Navy lieutenants to make false statements. Apparently the specification originally alleged particular acts in furtherance of the conspiracy. But the military judge found LT House guilty be exceptions and substitutions. The specification, as excepted and substituted, alleged that the three lieutenants "did on divers occasions . . . conspire . . . to . . . make a false statement, and in order to effect the object of the conspiracy, the said Lieutenant Harris, the said Lieutenant House, and the said Lieutenant Williams each made a false statement to NCIS." The Navy JAG threw out the conviction, reasoning:

The summarized record of trial reflects that the government presented evidence of a number of statements that the accused made to NCIS. It is not apparent from a plain reading of the specification as excepted and substituted, or by a review of the summarized record of trial, which statement the military judge concluded was false. Because the findings do not establish which statement provided the basis of the conviction, this specification is not reviewable and the findings cannot be affirmed. See U.S. v. Scheuer [sic], 62 M.J. 100 (C.A.A.F. 2005)(citations omitted).

House, slip op at 5.

This reasoning is flawed for at least two reasons. First, LT House's false statement to NCIS wasn't necessary to his conviction for this offense. Even if that allegation were excepted from the specification, he would still be guilty of the conspiracy due to either LT Harris's or LT Williams's act in furtherance of the conspiracy. So any uncertainty as to what statement of LT House's to NCIS was false would at most justify modifying the specification to omit that particular overt act, not reversing the finding of guilty altogether.

Second, Scheurer is entirely inapposite to consideration of a petition for new trial under Article 73. Scheurer is an application of the Walters/Seider line of cases. That line of cases is arises from limitations that Article 66(c) places on the CCAs' authority to affirm findings of guilty. In fact, Walters expressly noted that its holding "hinge[d] on [Article 66(c)'s] unique statutory function." United States v. Walters, 58 M.J. 391, 395 (C.A.A.F. 2003). It was based on "a critical limitation" to the CCAs' "unique power of review for factual sufficiency" under Article 66(c). Id. CAAF offered this summary of its holding in Walters: AFCCA "could not conduct a factual sufficiency review of Appellant's conviction because the findings of guilty and not guilty do not disclose the conduct upon which each of them was based." Id. at 397 (emphasis added). But LT House's case never qualified for Article 66(c) review because his sentence included neither a dismissal nor a year or more of confinement. (In fact, it didn't include any confinement at all.) Nor is a Judge Advocate General exercising any authority under Article 66(c) when ruling on a petition for new trial; rather, such petitions are governed by Article 73. And Article 73 does not include factual sufficiency review. Walters, Seider, and Scheurer are all, therefore, inapplicable to the House case and the invalidation of the conspiracy conviction under this line of cases is legally erroneous.

Of course, even if I'm right about these problems in the opinion, nothing will change. The Navy JAG's ruling isn't subject to any further review. So LT House will get to keep his satisfying, probably just, but legally erroneous victory.

But what of the next person in LT House's position? Before obtaining his victory from the Navy JAG, LT House had filed a previous petition for new trial that was denied as untimely, had sough reconsideration of that denial, had unsuccessfully petitioned NMCCA for extraordinary relief, had filed an unsuccessful writ appeal with CAAF, and had filed an ultimately denied cert petition with the Supreme Court. His counsel then instituted suit in the Court of Federal Claims, at which point the Navy JAG agreed to take another look at his case. Can we count on all factually innocent servicemembers who receive subjurisdictional sentences to have the knowledge, patience, and financial resources that LT House required to ultimately prevail in his case?

And what if the next time a factually innocent servicemember with a subjurisdictional sentence files an out-of-time petition for new trial with a Judge Advocate General due to misconduct at the Army Crime Lab, the Judge Advocate General applies Bowles v. Russell and rejects the petition as untimely?

Rather than requiring a Judge Advocate General to bend the law to produce a just result, we should provide a right of appeal for any servicemember who is found guilty by a GCM or SPCM despite having pleaded not guilty, regardless of the severity of the resulting sentence. If LT House had had such a right to appeal, then a clear framework would have existed to deal with the revelation of the Army Crime Lab examiner's misconduct and the subsequent exculpatory DNA retesting results.

Let's hypothesize that LT House had lost his initial appeal and CAAF had denied review before Mr. Mills's misconduct came to light. What then? United States v. Denedo provides the answer. If his case had once been within NMCCA's jurisdiction, then LT House could return to that court with the new information to seek a writ of error coram nobis. Such an instance would demonstrate the importance of allowing the military justice system's courts to protect their own integrity far more compellingly than did the facts of Denedo itself. As the Denedo majority observed:

The military justice system relies upon courts that must take all appropriate means, consistent with their statutory jurisdiction, to ensure the neutrality and integrity of their judgments. . . . [T]he jurisdiction and the responsibility of military courts to reexamine judgments in rare cases where a fundamental flaw is alleged and other judicial processes for correction are unavailable are consistent with the powers Congress has granted those courts under Article I and with the system Congress has designed.

The House case, where the accused was convicted due to false scientific evidence foisted into the military justice system by the U.S. government's own unscrupulous employee, truly involves a threat to the system's integrity.

The House case also demonstrates the callousness of the dissent's "You're in the Army now" quip. Chief Justice Roberts wrote for the four dissenting justices, "To be sure, the limited nature of relief available under Article 73 might lead one to question whether that is truly the only postconviction relief the UCMJ permits. 'You're in the Army now' is a sufficient answer to such concerns; the relief available looks positively extravagant in light of the prior history and tradition of military justice." But when LT House first enlisted in the Navy and later accepted a commission, he shouldn't have sacrificed his right to be free from the lifetime stigmatization of a factually erroneous federal conviction resulting from a U.S. government employee's falsified DNA report. Yet that might very well be the result in a subjurisdictional case such as LT House's were Article 73 to be applied consistently with Bowles v. Russell.

But those in LT House's position can have their right to be free from factually erroneous convictions protected by adding them to the class of servicemembers who may appeal their cases to the Courts of Criminal Appeals. The House case amply demonstrates the dangers of excluding such cases from appellate review.