Navy JAG certifies confrontation issue

The Judge Advocate General of the Navy has certified the following issue to CAAF:

WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRONEOUSLY HELD THAT THE MILITARY JUDGE ABUSED HIS DISCRETION BY FINDING THE 13-YEAR OLD WITNESS UNAVAILABLE ON THE BASIS OF MENTAL ILLNESS OR INFIRMITY, AND THUS THAT THE MILITARY JUDGE HAD ERRONEOUSLY ADMITTED THE WITNESS’ VIDEOTAPED DEPOSITION.

The case is United States v. Cabrera-Frattini, No. 07-5001. The Navy-Marine Corps Court's unreported ruling is available at http://www.jag.navy.mil/NMCCA/CABRERA-FRATTINI%20J.R.%20200201665%20UNPUB.doc. The Navy-Marine Corps Court panel split 2-1, with Chief Judge Rolph writing a lengthy and thoughtful dissent.

--Dwight Sullivan

The Supreme Court October 2006 term's military justice docket

One advantage of blogging is that it creates pressure to write. The counter that the No-Man put at the bottom of the CAAFlog page creates even more pressure -- I insanely care more about the rate at which that counter rises than the trajectory of my 401(k) -- that's warped, but it's true. And I know that unless new content appears regularly on this blog, the number on the counter will grow about as quickly as the holly bush in my yard -- and that CAAFlog may, also like the holly bush in my yard, die an ignoble death from neglect.

The pressure to write produces a drive to research -- which led to a "Eureka" moment tonight. In poking around on the Supreme Court's web site, I found a way to disgorge what appears to be a complete term-by-term account of all the military justice cases filed at the Court. Go onto the "docket" page and type in "Court of Appeals for the Armed Force." The result is a list of cases in which the lower court's decision was rendered by CAAF -- going back to the October 2000 term. What an interesting list.

Let's focus on the current term. There are six military justice cases on the October 2006 term's docket: Quintanilla, Magyari, Lucas, Parker, McKeel, and Christian.

The Court has already denied cert in Quintanilla, Magyari, Lucas, and Parker. McKeel goes to cert conference this Friday. The SG's response in Christian is due 27 November.

Lucas and Christian are particularly interesting, as is one overall trend among the cases.

First Lucas. CAAF denied Lucas's petition for grant of review. Which means, of course, that the Supremes don't have statutory certiorari jurisdiction over the case. On 15 September 2005, the Navy-Marine Corps Court decided Boatswain's Mate First Class Eric V.F. Lucas's appeal. NMCCA granted partial relief, including knocking out the adjudged and approved BCD, eliminating the forfeitures, and reducing the confinement from a year to 8 months. (Lucas had already served the time about three years before NMCCA ruled.) On 26 May 2006, CAAF denied Lucas's petition. 63 M.J. 295. Lucas's civilian defense counsel -- John B. Wells (the same civilian defense counsel as in McKeel) -- nevertheless filed a cert petition on 23 August 2006. Instead of pointing out that UCMJ art. 67a does not allow for certiorari in such a case, the Solicitor General waived his right to respond and the Supremes denied the petition on 10 October.

Now Christian. After being convicted of various child sex offenses, Staff Sergeant David P. Christian, U.S. Army, received a sentence that included 16 years of confinement. On appeal, Christian challenged the effective date of life without eligibility for parole (LWOP), arguing that it was unavailable on the date of his offenses and that he entered into a pretrial agreement on the basis of the mistaken belief that he was protecting himself from the possibility of LWOP. CAAF rejected that argument, as well as a Grostefon ineffective assistance of counsel claim. 63 M.J. 205. Here's where things get really interesting. On 22 August, the Supremes docketed Christian's pro se cert petition with leave to file in forma pauperis. Why was it pro se? Did Christian want appellate defense counsel to file on his behalf? Was he refused? While a cert grant seems unlikely for an issue concerning LWOP's effective date for a sodomy with a child under 12 offense, such an issue would seem to clear the frivolousness hurdle. A previous post discussed Lovett's successful pro se petition for a writ of mandamus seeking continued representation by appellate defense counsel after Lovett lost his case at CAAF. Did Christian present a similar situation? The Supreme Court's docket entry for the Christian case raises many more interesting questions than it answers.

Here's the interesting trend. Ignore the cert petition in the case where the Supremes didn't have jurisdiction and the pro se cert petition. Four of the remaining four cert petitions are in Navy or Marine Corps cases. It is impossible to draw any conclusions on the basis of such a small sample size. But it raises the question of whether there is a different attitude toward Supreme Court practice at the Navy Yard than at Bolling or Balston.

--Dwight Sullivan

CAAF issues writ requiring continued appellate representation

The 24 October daily journal has a most interesting summary disposition of a petition for extraordinary relief.

Air Force Staff Sergeant Joshua P. Lovett is doing 14 years for various offenses, including the rape of a child. After extensive appellate review, the Court of Appeals for the Armed Forces affirmed his findings and sentence on 6 June 2006. United States v. Lovett, 63 M.J. 211, 212 (C.A.A.F. 2006). On 14 July, Lovett filed a pro se petition for reconsideration. On 14 July 14, Lovett's appellate defense counsel informed him “that neither I nor any other attorney from the Appellate Defense Division will represent you in any further action you decide to take in your case.” On 14 August, CAAF denied Lovett's pro se reconsideration petition.

In granting Lovett's petition for writ of mandamus, CAAF set out that procedural history and then explained:

The Uniform Code of Military Justice provides: “Appellate defense counsel shall represent the accused before the Court of Criminal Appeals, the Court of Appeals for the Armed Forces, or the Supreme Court . . . when requested by the accused . . . .” Article 70(c)(1), UCMJ, 10 U.S.C. § 870(c)(1) (2000). Petitioner’s case is not final as a matter of law. See Article 71(c), UCMJ, 10 U.S.C. § 871(c) (2000). The immediate question before us is not whether counsel must file any particular matter in the course of representing a servicemember, but whether counsel may discontinue such representation before the case is final as a matter of law. Nothing in the record of the present case established a basis for counsel to sever the lawyer-client relationship. Accordingly, it is ordered that the Judge Advocate General of the Air Force shall provide appellate defense counsel to represent Petitioner for the purposes of review of his court-martial under Article 67a, UCMJ, 10 U.S.C. § 867a (2000).

From the Daily Journal, it isn't clear exactly for what purpose Lovett is seeking an appellate defense counsel's assistance -- though it one does the math, it is apparent that his time for filing a cert petition at the Supreme Court hasn't yet run. But CAAF is insisting, no doubt correctly, that Lovett continue to be represented until his case is final -- if for no other purpose, I suppose, than to advise him that he has no non-frivolous issue to raise in a cert petition before the Supremes.

--Dwight Sullivan

The debate over Tate's fate

As the Columbus Clipper notes in his comment to that last post, a large part of the Tate oral argument was devoted to the issue of remedy. (Apparently Marcus and I both whiled away the World Series rain delay -- before it became a rain out -- last night by listening to the Tate argument.) [CORRECTION: my apologies to the Super Muppet of Appellate Advocacy -- it was he, rather than the Columbus Clipper, who made the sage observations with which this post deals.]

It's always risky to predict a case's outcome on the basis of oral argument questions, but the judges did seem keenly interested in the correct rememy if the court were to hold that a pretrial agreement provision limiting the right to seek clemency and parole was invalid. At one point during the appellate government counsel's argument, Judge Erdmann told him, "I think I understand your argument. Let's move to remedy."

As the Columbus Clipper [should be "Super Muppet"] also notes, the appellate government counsel responded by requesting that the court fix any error by striking the clemency/parole limiting provision rather than voiding the entire PTA, which would have made Tate susceptible to life without eligibility for parole during any retrial. During the discussion that followed Judge Erdmann's invitation, Judge Effron asked whether the government's preferred remedy was for this case only or all cases that present a similar issue. [He wisely answered that this was a case-specific preference.] Again, we don't want to infer too much from questions at oral argument, but . . . .

--Dwight Sullivan

Cutting a deal to deal accused out of clemency & parole

CAAF will be hearing argument in a very important case tomorrow. Here's the issue presented in United States v. Tate:

WHETHER THE PRETRIAL AGREEMENT VIOLATED RULE FOR COURTS-MARTIAL 705(c) BY DENYING APPELLANT THE POST-TRIAL RIGHT TO SEEK CLEMENCY AND PAROLE

The opinion below was unreported, but basically followed the Navy-Marine Corps Court's decision in United States v. Thomas, 60 M.J. 521 (N-M. Ct. Crim. App. 2004). [NMCCA's unreported decision in Tate is available here: http://www.jag.navy.mil/NMCCA/200201202.UNPUB.doc] Thomas was an interesting case. He had originally been sentenced to death but CAAF set aside his sentence due to an instructional error. 46 M.J. 311 (C.A.A.F. 1997). Because his offense preceded 18 November 1997, Thomas could not be sentenced to life without eligibility for parole (LWOP). To escape a second capital referral, he cut a deal for de facto LWOP by agreeing not to seek or accept clemency or parole. (I guess if his jailers at the USDB were to fling his cell door open and tell him to go home, he would remain seated on his bunk, making hash marks every morning as he woke up and glanced at the open door.) My initial inclination is that the system should not paternalistically take a bargaining chip away from the accused, but I'm not confident in that conclusion. I look forward to listening to the audio of LT Mizer's argument on behalf of Tate.

The second case being argued on Wednesday (and the last argument of the month) is United States v. Foster. Here's the issue:

WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT WHEN IT RULED THAT THE MILITARY JUDGE DID NOT BECOME A PARTISAN ADVOCATE FOR THE GOVERNMENT, AND THAT THE MILITARY JUDGE'S TREATMENT OF THE DEFENSE EXPERT DID NOT DENY APPELLANTÂ’S RIGHT TO PRESENT A DEFENSE.

Here's a serious question for those currently practicing military appellate law: did the defense counsel write this issue or did CAAF reformulate a more persuasive issue into this form? If the former, then every appellate defense counsel should buy one of Garner's books that includes a discussion of issue framing and study and implement his method.

Foster was an unpublished opinion below. Worse, if you go to NMCCA's web site and click on the link for the Foster opinion, you will get the court's opinion in Untied States v. Brumfield instead. If you click on the Brumfield link, you will also get the Brumfield opinion. For those with LEXIS access, the actual Foster opinion is available there (as is Brumfield). Finally, there is still no opinion on the NMCCA web site released since 11 September. That seems like quite a lull without producing anything of note.

--Dwight Sullivan

Challenging arguments

The CAAFeteria will be serving some interesting dishes on Tuesday. The entree is United States v. Terry, which presents one of the most interesting factual scenarios in a members challenge case ever. (If you have forgotten, see the 3 October table setting contest blog post.) Then comes a half-portion second helping of members challenges in United States v. Briggs, docketed for 15 minutes per side. For a tasty dessert, there is United States v. Cossio, a speedy trial case in which the military judge kicked the case only to be overturned by the Air Force Court. CAAF will now settle the matter.

It doesn't sound like there's a single serving of meatloaf on the menu. Bon appetite!

(By the way, here's something weird. The spellchecker on blogger.com, on which these posts are composed, doesn't recognize the word "blog." Then again, the spellchecker also doesn't recognize the word "spellchecker." I'm not making this up.)

--Dwight Sullivan

New UCMJ amendment

On the same day that President Bush signed the Military Commissions Act of 2006 into law, with considerably less fanfare he also signed the John Warner National Defense Authorization Act for Fiscal Year 2007, 109 P.L. 364; 120 Stat. 2083 (2006).

As usual, this year's authorization act tweaks the military justice system. Here are this year's provisions:

Subtitle E--Military Justice Matters

Sec. 551. APPLICABILITY OF UNIFORM CODE OF MILITARY JUSTICE TO MEMBERS OF THE ARMED FORCES ORDERED TO DUTY OVERSEAS IN INACTIVE DUTY FOR TRAINING STATUS.

Not later than March 1, 2007, the Secretaries of the military departments shall prescribe regulations, or amend current regulations, in order to provide that members of the Armed Forces who are ordered to duty at locations overseas in an inactive duty for training status are subject to the jurisdiction of the Uniform Code of Military Justice, pursuant to the provisions of section 802(a)(3) of title 10, United States Code (article 2(a)(3) of the Uniform Code of Military Justice), continuously from the commencement of execution of such orders to the conclusion of such orders.

Sec. 552. CLARIFICATION OF APPLICATION OF UNIFORM CODE OF MILITARY JUSTICE DURING A TIME OF WAR.

Paragraph (10) of section 802(a) of title 10, United States Code (article 2(a) of the Uniform Code of Military Justice), is amended by striking "war" and inserting "declared war or a contingency operation".

The second section could be enormously significant. This is the old UCMJ provision: "(a) The following persons are subject to this chapter . . . (10) In time of war, persons serving with or accompanying an armed force in the field." That will now read, "(a) The following persons are subject to this chapter: (10) In time of declared war or a contigency operation, persons serving with or accompanying an armed force in the field."

This change allows court-martial jurisdiction to reach a great number of civilians who were not previously susceptible to court-martial jurisdiction. In a Vietnam-era case, the Court of Military Appeals set aside the conviction of a civilian contractor in Saigon because it construed the old Art. 2(a)(10) to apply only in cases of declared war. United States v. Averette, 19 C.M.A. 363, 41 C.M.R. 363 (1970). Throughout U.S. history, we have fought only five declared wars (World War II, World War I, the Spanish-American War, the Mexican-American War, and the War of 1812). We have been engaged in a great many more contingency operations.

It will be interesting to see whether -- and, if so, how -- the military takes advantage of this major expansion of court-martial jurisdiction.

--Dwight Sullivan

Seeking an even McKeel

In a recent post, I was called a geek by a self-confessed dork, a.k.a., the Columbus Clipper. At the risk of being elevated to "dweeb" status, I think the on-going machinations over the McKeel cert petition are fascinating. Here is a link to a letter that the Solicitor General's office sent to Gene Fidell in response to his argument that once CAAF grants review of a case, all issues in that case -- granted or not -- are fair game at the Supremes:

http://www.nimj.org/documents/McKeel.pdf

I am enjoying this rare high-level legal discussion of military justice appeals. I mean, if all of the areas of law got together and had a party at MCCXXIII, the bouncer wouldn't let military justice past the velvet rope. And yet here's the S.G.'s office paying attention to little ol' us. I do declare.

The Supreme Court's front doors weigh 13 tons. (I'm not kidding -- here's a web page devoted to the Supreme Court's front doors: http://www.supremecourtus.gov/about/bronzedoors.pdf. What next, their own blog?) Trying to pry open 13-ton bronze doors is a fitting metaphor for trying to get a cert grant. In the real world, it matters little whether a military appellant can take his case to the Supreme Court because the result will be the same as for an appellant who can't. Perhaps the better reform would be to open CAAF's comparatively inviting doorway a little further. How about a system in which CAAF will review any assignment of error actually raised? (I wouldn't make CAAF review merits submission cases on the merits, though I would still allow it to specify issues if it chose to do so.) Of course, this would have the concomitant effect of allowing an unsuccessful appellant to file a cert petition in all of these cases. But the more important effect would be a civilian court's resolution of the merits of any issue that an appellate defense counsel thinks is important enough to raise.

--Dwight Sullivan

Moreno No More?

A glance at the CAAF Daily Journal shows a recent spat of Moreno grants and findings of no prejudicial post-trial delay beyond a reasonable doubt. Was Judge Crawford's final act to convince the other members of the Court that there really is no such thing as prejudicial post-trial delay? Aside from the sheer volume of 4-1 decisions, this could be her legacy.

Posted by No Man

McKeel distributed for Conference

McKeel has been distributed for the Supremes' 3 November conference.