Haditha

Today's Washington Post has a lengthy article about the Haditha incident.

New Air Force case: a predictable kvetch and a compliment

The Air Force Court of Criminal Appeals posted its December decisions on line today. So only today did I learn that the court issued a published opinion on 7 December. United States v. Larson, __ M.J. ___, No. ACM 35934, 2007 WL 15905 (A.F. Ct. Crim. App. 7 Dec. 2006). I continue to be perplexed by why the Air Force Court would care enough about its opinion to publish it, but then keep it under wraps for 29 days -- especially when it has the means (to wit, a web site) to share it with world instantaneously. So Air Force and Navy-Marine Corps Courts -- if you don't want to move to daily updating of your opinions, could you at least do it at the end of each week?

Now for the compliment. Judge Mathews, who wrote the Larson opinion, is quickly becoming my favorite military appellate judge. I previously praised Judge Mathews' opinion in United States v. Carr, 63 M.J. 615 (A.F. Ct. Crim. App. 2006). Larson is a case about an Air Force major who arranges a sexual liaison with a 14-year-old girl named Kristin who turns out to be, surprise, a Colorado Springs police officer. Here's the part of the opinion that I really enjoyed: Major Larson "quickly learned that Kristin was 14 years old, lived in Colorado Springs, and, up until recently, owned a pet hamster. After a few minutes of further conversation, the appellant steered the topic of discussion from rodents to sex." Slip op. at 2. We all have to read so much, it's such a joy when we read something written with a bit of flair. Judge Mathews writes with flair. (The Super Muppet is probably also a fan, since Judge Mathews wrote an opinion setting aside the sentence in a case called United States v. Grover, 63 M.J. 653, 657 (A.F. Ct. Crim. App. 2006). Now if only he could do something about the timeliness with which his artful opinions are disseminated . . . .)

But enough points for presentation -- let's move on to the points for technical merit. (I am fairly certain that is the first figure skating metaphor I have ever written; I hope it will also be my last.) The main issue in Larson was whether the military judge should have suppressed evidence found in a warrantless search of the government computer on which Major Larson worked while filling in for another officer who was deployed. The Air Force Court described this as an issue of first impression, explaining:

In military jurisprudence, the focus of Fourth Amendment litigation involving computers has primarily been on the expectation of privacy to be afforded to e-mail: personal communications between users, sent via computers using networks or the Internet. The search of the government computer here did not focus on such communications. Instead, the AFOSI searched for certain data files, created as part of the "normal operating procedure" of the Microsoft Windows operating system, which record the date, time, and Internet address of web sites visited by the computer user, as well as information about the user account in use on the computer at the time the sites were visited. Such files are like a "documented history of [the user's] travels on the Internet." United States v. Romm, 455 F.3d 990, 994 n.5 (9th Cir. 2006).

Slip op. at 5 (internal citation and footnote omitted).

The Air Force Court, not surprisingly, held that the military judge had not abused his discretion by denying the defense's suppression motion. First, the Air Force Court explained, Major Larson apparently wasn't even aware that the incriminating data files existed, and "we are unconvinced the appellant could entertain a subjective expectation of privacy in them without such knowledge." Id. Even if Major Larson did have a subjective expectation of privacy, the Air Force Court held, that expectation would be unreasonable. "The data in question was recorded automatically, not for law enforcement purposes, but as part of the computer's operating system. The appellant could not expect to keep private automatically-recorded data stored on government property he would reasonably have known would be turned over to another officer on that officer's return from deployment." Id.

The Air Force Court also rejected a few cats-and-dogs arguments, including IAC, multiplicity, and entrapment. But the opinion never clarifies whether the hamster was real, fictitious, or a Colorado Springs police officer.

--Dwight Sullivan

Fun fact from Legal Times

Tony Mauro's Christmas Day report about Chief Justice Roberts in the Legal Times included the following fun bit of trivia:

According to a new study by University of Kansas professor Lawrence Wrightsman, the number of words advocates are able to speak before being interrupted by a justice has jumped nearly 50 percent under Roberts. That trend has been attributed to the retirement in January of Justice Sandra Day O’Connor, who was usually first with a question. But Wrightsman’s numbers indicate the increase started even while O’Connor was on the bench. Wrightsman is the author of a new book, The Psychology of the Supreme Court.

May I Interrupt . . .
Median number of words spoken by Supreme Court advocates before a justice asks a question.

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Petitioner Respondent
•2003-2004 term (Rehnquist presiding) 111 82
•2004-2005 term (Rehnquist or Stevens presiding) 111 77
•2005-2006 term (Roberts presiding, O’Connor on Court) 137 84
•2005-2006 term (Roberts presiding, Alito on Court) 155 116
•2006-2007 term (Roberts presiding, through December) 160 121

--------------------------------------------------------------------------------

Source: Lawrence Wrightsman, University of Kansas

Notes: During the 2004-2005 term, Justice John Paul Stevens presided during periods of Chief Justice William Rehnquist’s illness. Chief Justice John Roberts Jr. presided during the entire 2005-2006 term, and Justice Sandra Day O’Connor served as an associate justice until Jan. 31, 2006, when Justice Samuel Alito Jr. succeeded her.

It would be interesting to do a similar analysis of CAAF arguments -- though the audio links that would facilitate such a study are limited to the current term.

BUT one shouldn't draw the wrong implication from this study. I have always believed, as my law school appellate advocacy text recommended, that an advocate should REJOICE when a judge asks a question. That gives the advocate insight into the judge's concerns, thereby allowing the advocate to target his or her argument to what may prove to be the determinative issue for that judge. And if Justice O'Connor, of all people, wanted to highlight her concerns, well I might be tempted to start my argument by asking her if there was anything in particular on her mind.

How many cases are won on the basis of a canned oral argument opener? Not many, I'd wager. How many arguments are won when the advocate manages to strike up a discussion with the judges? I'd be willing to bet a good many more. (Of course, I wouldn't be willing to bet with the Super Muppet or the Columbus Clipper, since that would violate a Navy Reg against gambling with junior officers. And I couldn't bet with Guert, either, since the good Commodore would then be violating the Navy Reg by betting with one of his juniors.)

At oral argument, a judge's silence is far from golden.

--Dwight Sullivan

Redeux

Like the armies struggling outside Chalmette Plantation in 1814-15, NMCCA was blissfully unaware that, when it decided United States v. Adams last month, it had already lost the Battle of New Orleans II. The C.A.A.F. decided the case of United States v. Canchola, __ M.J. __ (C.A.A.F. 2006) yesterday. Canchola appears to be an advisory opinion or, more appropriately, a rebuke of the NMCCA. As it did in Adams, NMCCA decided to tinker with C.A.A.F.'s recent post-trial delay analysis. "There must be recognition in the post-trial arena of the concept of 'excludable delay' for good cause show, just as it is in the pretrial arena." United States v. Canchola, __ M.J. __ (N.M. Ct. Crim. App. 2006). The C.A.A.F. disagreed. In footnote two, the Court states that Judge Wagner's novel application of "excludable delay" to the Moreno analysis is "inappropriate." "Review and balancing of the Barker factors, as set forth in our recent appellate delay jurisprudence, provide a sufficient framework for determining whether a due process violation has occurred." If C.A.A.F. liked Canchola, they are going to love Adams.

Slow news day

CAAF continues to keep its New Year's resolution of ensuring that the Daily Journal stays within one working day of being current. Not much of interest in today's crop other than a petition in the published Air Force case of United States v. Attucks, 64 M.J. 518 (A.F. Ct. Crim. App. 2006), which we previously discussed here. A petition had already been filed on 11 December in what strikes me as the more interesting case of United States v. Vieira, 64 M.J. 524 (A.F. Ct. Crim. App. 2006). A petition was filed on 14 November in the gambler's defense case of Untied States v. Falcon, __ M.J. ___, NMCCA No. 200401483 (N-M. Ct. Crim. App. 10 Oct 2006). And Pflueger wasted no time, filing his petition with CAAF two days after he lost at NMCCA. See Unites States v. Pflueger, __ M.J. ___, 2006 CCA LEXIS 328 (N-M. Ct. Crim. App. 5 Dec. 2006).

I believe that leaves Tingler and Upham as the only appellants who lost in published CCA cases during FY 07 who have not yet filed a petition. See United States v. Tingler, __ M.J. ___, 2006 CCA LEXIS 329 (N-M. Ct. Crim. App. 14 Dec. 2006); United States v. Upham, __ M.J. ___, No. 1235, 2006 CCA LEXIS 331 (C.G. Ct. Crim. App. 20 Dec 2006).

While we are in recap mode, does anyone know whether Dearing was ever released from the USDB?

Also, I won't be at the Parker argument tomorrow. If any CAAFlog contributor or reader is there tomorrow, will you please post a review?

--Dwight Sullivan

This week in military justice

There will be two CCA appellate arguments on Thursday, 4 January. The Navy-Marine Corps Court will hear oral argument in the appeal of United States v. Parker, a Marine Corps capital case. Also on 4 January, Panel 1 of the Air Force Court will be hearing oral argument in United States v. Heifner. I invite anyone with additional information about either case to post it below.

Six degrees of Marcus Fulton

As dedicated CAAFlog readers (both of you) know by now, Marcus Fulton's official CAAFlog nickname is the Columbus Clipper. This is partially an allusion to Joe DiMaggio's nickname, the Yankee Clipper. Simon and Garfunkel sang "Where have you gone, Joe DiMaggio" in the song "Mrs. Robinson" in the movie "The Graduate." Dustin Hoffman starred in "The Graduate" as Benjamin Braddock. Dustin Hoffman and Kevin Bacon were both in Barry Levinson's 1996 film, "Sleepers."

So where have you gone, Columbus Clipper?
A nation turns its lonely eyes to you.
(Woo woo woo)

New published Navy-Marine Corps case: the Battle of New Orleans part deux

The Navy-Marine Corps Court has now put its December decisions on its web site. Included in this December batch are three published opinions. We have already looked at the first two, Pflueger and Tingler. The third is United States v. Adams, __ M.J. ___, No. 200600767, 2006 CCA LEXIS 332 (N-M. Ct. Crim. App. 2006). Adams is a published case despite the fact that its address on the NMCCA web site ends in "UNPUB.doc" and is a Navy-Marine Corps Court case despite the fact that its LEXIS "Copy w/cite" citation tells you it was decided by the Air Force Court, a problem previously discussed here.

It appears that the Navy-Marine Corps Court has now brought its web site up-to-date. We understand from LCDR Truax that the Coast Guard Court's web site is always within one working day of being up-to-date. The most recent opinion on the ACCA web site is from 22 December, indicating that as usual it is running in real time or near real time. CAAF's web site puts up opinions the day they are issued and has recently been running only one working day behind on the Daily Journal -- a considerable improvement from past practice. Hhhhmmmm, that leaves out only one military appellate court web site. Who might that be?

NMCCA's Adams opinion is a 16-page opinion written by Senior Judge Wagner, who is joined by Judges Vincent and Stone. It takes on the unenviable task of explaining why no relief is warranted even though more than FIVE YEARS passed between sentencing and docketing of the case at NMCCA, 1,666 days of which occurred after the CA had already acted.

A major reason for the lengthy published opinion appears to be its recommendation that CAAF reconsider the triggering mechanism for a due process post-trial delay analysis. The opinion criticizes CAAF for "establish[ing] a threshold requirement that is considerably lower than the standard established in Barker." 2006 CCA LEXIS 332, at *14. But NMCCA acknowledges that "[d]espite our reservations regarding the application of such a sweeping threshold standard, since our superior court has adopted the Smith threshold standard and being bound by the precedential holdings of our superior court, we must apply that standard in this case." Id. at *16. But the court also "encourage[s] reconsideration by our superior court of the threshold standard triggering application of a due process analysis." Id. at *16-*17.

In reading this portion of NMCCA's opinion, I wondered whether the court was writing with an audience of the two new CAAF judges in mind. Is NMCCA attempting to influence their thinking about the post-trial delay issue?

The Navy-Marine Corps Court ultimately concludes that there was a due process violation, beating the goverment about the head and shoulders along the way, e.g., "The failure of the Government in the case to at least put in a minimal effort in providing some reason for the extensive delay in delivering this record to the court is unconscionable." Id. at *20, n.8. Yet, at the end of the opinion, NMCCA holds that despite the due process violation, it would not grant relief. Nor would NMCCA use its Article 66(c) sentence appropriateness authority to reduce the sentence.

One aspect of NMCCA's reasoning seems peculiar. In its sentence appropriateness analysis, the court says that the "crimes of which the appellant stands convicted are serious and certainly deserving of harsh punishment." Id. at *34. Yet the opinion tells us that SSgt Adams was convicted of "unauthorized absence, dereliction of duty, and five specifications of wrongful appropriation." Id. at *1. Maybe there is some reason NMCCA didn't share with us that explains why these particular Article 86, 92, and 121 offenses were more ghastly than the norm, but these don't sound like particularly "serious" crimes crying out for "harsh punishment."

NMCCA notes that this cases arose before the Moreno presumption took effect. Id. at *19. So perhaps this case is like the Battle of New Orleans, which was fought after the Treaty of Ghent had already ended the War of 1812: it will make the skirmish's winner (the government? NMCCA?) feel better, but it won't have any real impact on the issue's ultimate resolution. But, unlike the Americans and the British facing each other at Chalmette Plantation, NMCCA knew about the larger conflict's resolution. The court nevertheless weighed in with a 16-page published opinion. NMCCA seems to hope that the Treaty of Ghent's terms might still be subject to revision.

--Dwight Sullivan

To quote Willie Nelson, on the road again

Tomorrow afternoon I'll be heading down to Charlotte to attend Saturday's Meineke Car Care Bowl (Go Navy! Beat Boston College! It just doesn't have the right ring to it, does it?) I'll be back late Saturday night. If, in the meantime, CAAF continues to spend the week between Christmas and New Year's working in overdrive, I hope that Guert, the No Man, the Super Muppet, and the Columbus Clipper will blog away.

A look at Lee

If you had the power to change just one thing about the U.S. military justice system, what would you pick? I suspect that some of you would transfer the power to appoint members to someone other than the CA. While that is certainly a reform that should be implemented, that wouldn't be my highest priority. I think that the biggest problem with the U.S. military justice system today is the institutional disparity in resources between the prosecution and the defense. The trial counsel can issue subpoenas; the defense counsel can't. The trial counsel can get litigation funding from the CA without having to run the request by the defense counsel; if the defense wants funding, it must show its cards to the prosecution. The trial counsel is closely alligned with NCIS while the defense has no organic investigation capacity.

What we really need is a rule that says something like the trial counsel and the defense counsel shall have an equal opportunity to obtain witnesses and other evidence. What? Article 46 already says that? Well then how on earth could the system described above have developed? Do the two sides have equal opportunity to obtain evidence when one side has subpoena power and the other doesn't? Hardly. Do the two sides have equal opportunity to obtain witnesses when one side must lay its case out for the other to justify funding for a witness, but the other side gets to seek witness funding privately? Doesn't sound like it. Our current system is like a poker game in which three of the defense cards are dealt face up while all of the prosecution cards are dealt face down. It is anything but equal.

The good news is that yesterday's Lee decision and United States v. Warner, 62 M.J. 114 (C.A.A.F. 2005), have started to breathe life into what had previously been the false promise of Article 46.

Lee is a Erdmann-authored unanimous decision of the three CAAF judges who started this term. Distressingly, like so many military justice cases these days, it's a kiddie porn case. One of the government witnesses in the case was "a forensic expert from the Defense Computer Forensics Laboratory who had prepared a 'Media Analysis Report' based upon his examination of graphic images seized from Lee's laptop computer." Slip op. at 4. The government planned to have the expert opine that images on Lee's computer were real photographs.

The defense wanted the services of an expert consultant, who might also become an expert witness at trial, to challenge the government expert's relatively untested methodology. The government denied the defense's request to hire the expert consultant and the defense unsuccessfully renewed the request at trial. The military judge denied the defense motion primarily on the basis -- and I swear I'm not making this up -- that the defense was able to interview the government expert, who didn't identify any defects in his own methodology. Slip op. at 8. All right then -- I guess that issue is resolved.

Well, not so fast. Judge Erdmann tore up the military judge over this reasoning:

In concluding that the defense met its burden of establishing necessity, we are concerned with the manner in which the military judge responded to this request. The military judge’s questioning of defense counsel reflects that the military judge found that since the defense counsel had the opportunity to discuss the images with the Government’s expert, there was no need for a separate defense expert. Aside from the common-sense conclusion that [the government expert] would be unlikely to cast a critical eye upon his own expertise, his analytical methods, or his professional conclusions, making a selected Government expert available for interview prior to trial does not properly respond to a defense showing of necessity for expert assistance.

Slip op. at 11.

CAAF held that the military judge erred by denying the request and that the error prejudiced the defense, requiring that the findings and sentence be set aside.

Before the obligatory decretal paragraph, Judge Erdmann concluded his opinion with the following:

Courts-martial must not only be just, they must be perceived as just. The requirement of Article 46, UCMJ, for United States v. Lee, No. 03-0071/AF equal access to witnesses and evidence secures that just result and enhances the perception of fairness in military justice. Where the Government has found it necessary to grant itself an expert and present expert forensic analysis often involving novel or complex scientific disciplines, fundamental fairness compels the military judge to be vigilant to ensure that an accused is not disadvantaged by a lack of resources and denied necessary expert assistance in the preparation or presentation of his defense.

Slip op. at 13-14.

Lee and Warner are a good start, but they seem to be just the tip of the Article 46 iceberg. How many more ocean liners must steam into that iceberg before we end up with a military justice system that truly respects the requirement that the defense and prosecution have an equal opportunity to obtain witnesses and evidence? In order to save future cases, the Joint Services Committee should immediately begin to implement a system that would give both the prosecution and the defense subpoena power (as exists in civilian courts) and that would provide the defense with the right to an ex parte hearing to litigate funding requests for expert and lay witnesses and expert consultants. Providing these rights through regulatory changes would eliminate the prospect of losing convictions on appeal as the courts recognize that, properly construed, Article 46 already requires such measures.

--Dwight Sullivan