We previously discussed NMCCA's ruling reversing a military judge's quashing of a subpoena issued to CBS News in United States v. Wuterich, a prosecution arising from the Haditha incident. United States v. Wuterich, __ M.J. ___, No. NMCCA 200800183 (N-M. Ct. Crim. App. June 20, 2008). On Monday, SSgt Wuterich's counsel filed a petition at CAAF. United States v. Wuterich, __ M.J. ___, No. 08-0681/MC (C.A.A.F. June 30, 2008). This has the effect of cutting off NMCCA's ability to sua sponte reconsider Wuterich either in panel or en banc.
On Tuesday, CAAF redocketed Wuterich, noting that it is a petition seeking review of an Article 62 appeal. CAAF renumbered the case 08-6006/MC and, under Rule 21(b), ordered that the supplement be filed no later than 21 July 2008 and the government's answer be filed no more than 10 days after the supp is filed. United States v. Wuterich, __ M.J. ___, No. 08-6006/MC (C.A.A.F. July 1, 2008).
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Wednesday, July 02, 2008
Navy JAG nominated for third star
Secretary Gates announced today that President Bush has nominated RADM Bruce MacDonald to the grade of vice admiral. The brief DoD announcement can be found here.
Tuesday, July 01, 2008
Dossey dosey-dos to CAAF
We previously discussed NMCCA's published decision in Dossey, in which a split NMCCA panel reversed its early unpublished 3-0 ruling that it didn't have jurisdiction under Article 62 to review a mistrial declaration. United States v. Dossey, 66 M.J. 619 (N-M. Ct. Crim. App. 2008).
Petty Officer Dossey's counsel filed a petition for grant of review on 12 June, giving CAAF a chance to definitively resolve the issue on which the same NMCCA panel has already taken divergently opposed positions. United States v. Dossey, __ M.J. ___, No. 08-0639/NA (C.A.A.F. June 12, 2008). (As we also previously discussed, the final Dossey opinion also conflicts with NMCCA's well-settled case law on how to interpret Article 62.)
Petty Officer Dossey's counsel filed a petition for grant of review on 12 June, giving CAAF a chance to definitively resolve the issue on which the same NMCCA panel has already taken divergently opposed positions. United States v. Dossey, __ M.J. ___, No. 08-0639/NA (C.A.A.F. June 12, 2008). (As we also previously discussed, the final Dossey opinion also conflicts with NMCCA's well-settled case law on how to interpret Article 62.)
Monday, June 30, 2008
Murphy
In 1998, CAAF issued its opinion in the appeal of Sergeant Murphy's premeditated murder convictions and death sentence. United States v. Murphy, 50 M.J. 4 (C.A.A.F. 1998). CAAF reversed the death sentence due to IAC and remanded the case to ACCA to decide whether the IAC also affected the findings. Last Friday, about 9-and-a-half years later, ACCA ruled that the IAC didn't affect the findings and remanded the case for a resentencing hearing in which death will be an authorized punishment. United States v. Murphy, __ M.J. ___, No. ARMY 19872873 (A. Ct. Crim. App. June 27, 2008).
The opinion is by the estimable Judge Greg Maggs, a professor at George Washington University Law School who was sitting on ACCA on a long-term activation.
The opinion is by the estimable Judge Greg Maggs, a professor at George Washington University Law School who was sitting on ACCA on a long-term activation.
ACCA releases important decision
ACCA has released its opinion in United States v. Murphy. Here's a link. More later.
Recommendations for Improvements to Military Justice System
Professor Philip Alston, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions released a press statement today, which included recommendations for improvements to the military justice system. The first recommendation is for the creation of a central office or registry that would track the status of ongoing cases and permit the public to have access to the information.
The other recommendations are for fundamental structural changes to the UCMJ, including a recommendation that the decision to prosecute service members be made by a new Director of Military Prosecutions. This recommendation is in response to Professor Alston's conclusion that military commanders are not holding subordinates appropriately accountable for misconduct, particularly misconduct resulting in harm to noncombatants occurring during operations.
The press release is available here.
The other recommendations are for fundamental structural changes to the UCMJ, including a recommendation that the decision to prosecute service members be made by a new Director of Military Prosecutions. This recommendation is in response to Professor Alston's conclusion that military commanders are not holding subordinates appropriately accountable for misconduct, particularly misconduct resulting in harm to noncombatants occurring during operations.
The press release is available here.
Sunday, June 29, 2008
Other daily journal activity
On Monday, CAAF granted the government's motion to enlarge the period of time in which the Judge Advocate General of the Navy may file a certificate for review to challenge NMCCA's ruling in United States v. Wheeler, 66 M.J. 590 (N-M. Ct. Crim. App. 2008). United States v. Wheeler, __ M.J. ___, No. 08-5007/NA (C.A.A.F. June 23, 2008).(Wheeler was the NMCCA case finding Military Rule of Evidence 707 unconstitutional as applied.) But CAAF limited the period of enlargement to this Tuesday and provided that "absent extraordinary circumstances, no further extension of time will be granted in this case." Id. That will give the Judge Advocate General a total of 47 days in which to file a certificate.
We previously discussed the government's motion to enlarge the certification time in Wheeler here. And we discussed NMCCA's decision in the case here.
Another interesting procedural maneuver is JAJG's motion to withdraw its 10-day letter in United States v. Paulk. Paulk was the published Air Force Court decision rejecting an equal protection challenge to military trial and appellate judges' lack of a fixed term of office in the Air Force and Department of the Navy, in contrast to the Army and Coast Guard. See United States v. Paulk, __ M.J. ___, No. ACM 36952 (A.F. Ct. Crim. App. May 20, 2008). We previously discussed the opinion here.
After initially responding to Major Paulk's supplement to his petition for grant of review with a 10-day letter, JAJG apparently reconsidered and decided to make a substantive filing. On Monday, CAAF granted JAJG's motion to withdraw its 10-day letter. United States v. Paulk, __ M.J. ___, No. 08-0581/AF (C.A.A.F. June 23, 2008).
We previously discussed the government's motion to enlarge the certification time in Wheeler here. And we discussed NMCCA's decision in the case here.
Another interesting procedural maneuver is JAJG's motion to withdraw its 10-day letter in United States v. Paulk. Paulk was the published Air Force Court decision rejecting an equal protection challenge to military trial and appellate judges' lack of a fixed term of office in the Air Force and Department of the Navy, in contrast to the Army and Coast Guard. See United States v. Paulk, __ M.J. ___, No. ACM 36952 (A.F. Ct. Crim. App. May 20, 2008). We previously discussed the opinion here.
After initially responding to Major Paulk's supplement to his petition for grant of review with a 10-day letter, JAJG apparently reconsidered and decided to make a substantive filing. On Monday, CAAF granted JAJG's motion to withdraw its 10-day letter. United States v. Paulk, __ M.J. ___, No. 08-0581/AF (C.A.A.F. June 23, 2008).
Daily journal update
There was some significant CAAF daily journal activity last week that I didn't have the capacity to cover from the road. So I'm playing catch-up this weekend.
CAAF granted plenary review in two cases, both from the Air Force. In United States v. Miller, CAAF granted review of:
WHETHER APPELLANT'S CONVICTION OF ATTEMPTED INDECENT LIBERTIES WITH A CHILD IS LEGALLY SUFFICIENT WHEN APPELLANT WAS NEVER IN THE PHYSICAL PRESENCE OF THE PURPORTED CHILD, BUT WAS CONVICTED ON THE BASIS OF HIS SENDING HER THROUGH THE INTERNET A CONTEMPORANEOUS VIDEO OF HIS PERFORMING A SOLITARY SEXUAL ACT.
United States v. Miller, __ M.J. ___ No. 08-0307/AF (C.A.A.F. June 24, 2008). AFCCA's decision in the case is at 65 M.J. 845 (A.F. Ct. Crim. App. 2007).
The second granted issue is: "WHETHER THE MILITARY JUDGE ERRED BY ALLOWING EVIDENCE OF LEGAL PORNOGRAPHY AND SEXUAL ACTS WITH HIS WIFE." United States v. Goodin, __ M.J. ___, No. 08-0355/AF (C.A.A.F. June 24, 2008). A literal reading of that issue would mean that the sexual acts were with the military judge's wife. Presumably that would have led the military judge to recuse himself and the actual issue is whether the military judge should have allowed the admission of evidence about the accused's sexual acts with the accused's wife. AFCCA's unpublished decision in the case is available here. United States v. Goodin, No. ACM 36266 (A.F. Ct. Crim. App. Dec. 19, 2007).
Also this week CAAF continued its recent practice of deciding some cases on the basis of the briefs without holding oral argument. On 2 April 2008, CAAF granted review of "WHETHER THE MILITARY JUDGE FAILED TO ESTABLISH THAT APPELLANT TOOK ANY SUBSTANTIAL STEP BEYOND MERE PREPARATION TO CROSS THE CRIMINALITY THRESHOLD OF 'ATTEMPT,' THUS RENDERING THE PLEA OF GUILTY TO CHARGE II, SPECIFICATION 2, IMPROVIDENT." United States v. Rowe, __ M.J. ___, No. 07-0813/NA (C.A.A.F. Apr. 2, 2008). CAAF ordered the parties to file briefs. On 24 June 2008, which would have been quite soon after briefing was complete, CAAF resolved the case: "On further consideration of the granted issue, __ M.J. __ (C.A.A.F. April 2, 2008), and the briefs of the parties, it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed." United States v. Rowe, __ M.J. ___, No. 07-0813/NA (C.A.A.F. June 24, 2008) (summary disposition).
And CAAF granted minor relief concerning the wording of a specification, but no relief as to sentence, on the basis of the petition for grant of review in United States v. Owens, __ M.J. ___, No. 08-0173/AR (C.A.A.F. June 24, 2008) (summary disposition).
CAAF also granted review of a Bartlett trailer, see United States v. Bartlett, No. 07-0636/AR, but ordered counsel not to brief it. United States v. Liriano, __ M.J. ___, No. 08-0225/AR (C.A.A.F. June 25, 2008).
The online daily journal is updated only through Wednesday, 25 June, so it's possible that this week we will learn of still more interesting daily journal developments from last week.
CAAF granted plenary review in two cases, both from the Air Force. In United States v. Miller, CAAF granted review of:
WHETHER APPELLANT'S CONVICTION OF ATTEMPTED INDECENT LIBERTIES WITH A CHILD IS LEGALLY SUFFICIENT WHEN APPELLANT WAS NEVER IN THE PHYSICAL PRESENCE OF THE PURPORTED CHILD, BUT WAS CONVICTED ON THE BASIS OF HIS SENDING HER THROUGH THE INTERNET A CONTEMPORANEOUS VIDEO OF HIS PERFORMING A SOLITARY SEXUAL ACT.
United States v. Miller, __ M.J. ___ No. 08-0307/AF (C.A.A.F. June 24, 2008). AFCCA's decision in the case is at 65 M.J. 845 (A.F. Ct. Crim. App. 2007).
The second granted issue is: "WHETHER THE MILITARY JUDGE ERRED BY ALLOWING EVIDENCE OF LEGAL PORNOGRAPHY AND SEXUAL ACTS WITH HIS WIFE." United States v. Goodin, __ M.J. ___, No. 08-0355/AF (C.A.A.F. June 24, 2008). A literal reading of that issue would mean that the sexual acts were with the military judge's wife. Presumably that would have led the military judge to recuse himself and the actual issue is whether the military judge should have allowed the admission of evidence about the accused's sexual acts with the accused's wife. AFCCA's unpublished decision in the case is available here. United States v. Goodin, No. ACM 36266 (A.F. Ct. Crim. App. Dec. 19, 2007).
Also this week CAAF continued its recent practice of deciding some cases on the basis of the briefs without holding oral argument. On 2 April 2008, CAAF granted review of "WHETHER THE MILITARY JUDGE FAILED TO ESTABLISH THAT APPELLANT TOOK ANY SUBSTANTIAL STEP BEYOND MERE PREPARATION TO CROSS THE CRIMINALITY THRESHOLD OF 'ATTEMPT,' THUS RENDERING THE PLEA OF GUILTY TO CHARGE II, SPECIFICATION 2, IMPROVIDENT." United States v. Rowe, __ M.J. ___, No. 07-0813/NA (C.A.A.F. Apr. 2, 2008). CAAF ordered the parties to file briefs. On 24 June 2008, which would have been quite soon after briefing was complete, CAAF resolved the case: "On further consideration of the granted issue, __ M.J. __ (C.A.A.F. April 2, 2008), and the briefs of the parties, it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed." United States v. Rowe, __ M.J. ___, No. 07-0813/NA (C.A.A.F. June 24, 2008) (summary disposition).
And CAAF granted minor relief concerning the wording of a specification, but no relief as to sentence, on the basis of the petition for grant of review in United States v. Owens, __ M.J. ___, No. 08-0173/AR (C.A.A.F. June 24, 2008) (summary disposition).
CAAF also granted review of a Bartlett trailer, see United States v. Bartlett, No. 07-0636/AR, but ordered counsel not to brief it. United States v. Liriano, __ M.J. ___, No. 08-0225/AR (C.A.A.F. June 25, 2008).
The online daily journal is updated only through Wednesday, 25 June, so it's possible that this week we will learn of still more interesting daily journal developments from last week.
Saturday, June 28, 2008
The Supremes dis the military justice system
Wednesday's controversial Supreme Court decision in Kennedy v. Louisiana, No. 07-343, canvassed the law in the United States governing the maximum permissible sentence for rape of a child. Remarkably, both the majority and the dissent overlooked a congressional statute right on point: the National Defense Authorization Act for Fiscal Year 2006.
Justice Kennedy's majority opinion noted that six states had authorized the death penalty for the rape of a child. Kennedy, slip op. at 12. The Court then observed:
The majority later stated: "Thirty-seven jurisdictions—36 States plus the Federal Government—have the death penalty. As mentioned above, only six of those jurisdictions authorize the death penalty for rape of a child." Id. at 15.
Writing for the four dissenters, Justice Alito countered: "The Court notes that Congress has not enacted a law permitting the death penalty for the rape of a child, ante, at 12–13, but due to the territorial limits of the relevant federal statutes, very few rape cases, not to mention child-rape cases, are prosecuted in federal court." Kennedy, dissent slip op. at 13 (Alito, J., dissenting). Justice Alito continued, "Congress' failure to enact a death penalty statute for this tiny set of cases is hardly evidence of Congress' assessment of our society's values." Id.
But just two years ago, Congress did enact a law permitting the death penalty for the rape of a child, which makes the number of authorizing jurisdictions seven (Louisiana, Georgia, Montana, Oklahoma, South Carolina, Texas, and the military), not six.
Section 552(b) of the National Defense Authorization Act for Fiscal Year 2006, 119 Stat. 3136, 3264 (2006), provides that "[u]ntil the President otherwise provides pursuant to" UCMJ article 56, "the punishment which a court-martial may direct for an offense under" the amended UCMJ article 120 "may not exceed the following limits: . . . For an offense under subsection (a) (rape) or subsection (b) (rape of a child), death or such other punishment as a court-martial may direct."
That is a congressional statute expressly authorizing the death penalty for the rape of a child. How come neither side in the Kennedy case even mentioned it?
Many years ago, Professor Schlueter gave a Hodson lecture he called, "Military Justice for the 1990's -- A Legal System Looking for Respect." See 133 Mil. L. Rev. 1 (1991). If the Kennedy Court's apparent unawareness of the military justice system is any guide, 17 years after Professor Schlueter's lecture, military justice remains the Rodney Dangerfield of legal systems.
Justice Kennedy's majority opinion noted that six states had authorized the death penalty for the rape of a child. Kennedy, slip op. at 12. The Court then observed:
Id. at 12-13.By contrast, 44 States have not made child rape a capital offense. As for federal law, Congress in the Federal Death Penalty Act of 1994 expanded the number of federal crimes for which the death penalty is a permissible sentence, including certain nonhomicide offenses; but it did not do the same for child rape or abuse. See 108 Stat. 1972 (codified as amended in scattered sections of 18 U. S. C.). Under 18 U. S. C. §2245, an offender is death eligible only when the sexual abuse or exploitation results in the victim's death.
The majority later stated: "Thirty-seven jurisdictions—36 States plus the Federal Government—have the death penalty. As mentioned above, only six of those jurisdictions authorize the death penalty for rape of a child." Id. at 15.
Writing for the four dissenters, Justice Alito countered: "The Court notes that Congress has not enacted a law permitting the death penalty for the rape of a child, ante, at 12–13, but due to the territorial limits of the relevant federal statutes, very few rape cases, not to mention child-rape cases, are prosecuted in federal court." Kennedy, dissent slip op. at 13 (Alito, J., dissenting). Justice Alito continued, "Congress' failure to enact a death penalty statute for this tiny set of cases is hardly evidence of Congress' assessment of our society's values." Id.
But just two years ago, Congress did enact a law permitting the death penalty for the rape of a child, which makes the number of authorizing jurisdictions seven (Louisiana, Georgia, Montana, Oklahoma, South Carolina, Texas, and the military), not six.
Section 552(b) of the National Defense Authorization Act for Fiscal Year 2006, 119 Stat. 3136, 3264 (2006), provides that "[u]ntil the President otherwise provides pursuant to" UCMJ article 56, "the punishment which a court-martial may direct for an offense under" the amended UCMJ article 120 "may not exceed the following limits: . . . For an offense under subsection (a) (rape) or subsection (b) (rape of a child), death or such other punishment as a court-martial may direct."
That is a congressional statute expressly authorizing the death penalty for the rape of a child. How come neither side in the Kennedy case even mentioned it?
Many years ago, Professor Schlueter gave a Hodson lecture he called, "Military Justice for the 1990's -- A Legal System Looking for Respect." See 133 Mil. L. Rev. 1 (1991). If the Kennedy Court's apparent unawareness of the military justice system is any guide, 17 years after Professor Schlueter's lecture, military justice remains the Rodney Dangerfield of legal systems.
Stevenson update
The Acting SG has received an extension of his deadline to respond to the Stevenson cert petition until 4 August. Stevenson v. United States, No. 07-1397.
The military cert petition in Rigby v. United States, No. 07-1549, has been distributed for conference on 29 September. It seems likely that Stevenson will be considered at that same conference.
The military cert petition in Rigby v. United States, No. 07-1549, has been distributed for conference on 29 September. It seems likely that Stevenson will be considered at that same conference.
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