CAAF Opinion: Collier on Defense Right to Present Its Case

United States v. Collier, No. 08-0495/NA, is available online, here. In the 4-1 opinion (Judge Baker dissenting), CAAF reverses NMCCA in a case concerning the right to present a defense. Helpful summary courtesy of Judge Ryan'sBLUF opinion (more later):

This case presents the question whether the military judge erred in granting the Government’s motion in limine prohibiting Appellant’s defense counsel from cross-examining HM2 C, the main Government witness, about an alleged homosexual romantic relationship between her and Appellant and from introducing any evidence of such a relationship. While the military judge did permit cross-examination about a close friendship, the defense that Appellant wanted to present was that HM2 C framed Appellant for larceny as a result of their romantic relationship ending badly. Because of this ruling, Appellant was free only to assert the motivation of an angry friend rather than a disappointed lover; as the Government then argued in its closing, the motivation of an angry, vengeful friend “strains all logic; it’s just not credible.”. The military judge’s ruling prevented Appellant’s counsel from fully exploring HM2 C’s bias and motive to misrepresent the truth, and precluded Appellant from presenting her theory of the case.

Under the circumstances of this case, including the fact that in its closing argument the Government exploited the evidentiary limitation it requested to criticize the theory with which Appellant was left, we find this constitutional error was not harmless beyond a reasonable doubt.

Judge Ryan's analysis finds some evidence of the relationship existed and then moves on to unfair prejudice. Her unfair prejudice analysis contains this surprising (at least to me) passage:

This Court has not allowed the military’s policy on homosexuality to prevent evidence of homosexuality from being used against an accused. See Phillips 52 M.J. at 272-73 (permitting trial counsel to offer evidence that the accused was engaged in a homosexual relationship). And we see no principled reason to prevent an accused from using this same type of evidence to potential advantage, particularly where, as here, Appellant was the proponent of the evidence of a homosexual relationship with the Government’s primary witness.

While the sauce for the goose is sauce for the gander argument is the stock and trade of appellate defense types (I resemble that remark), it was surprising to see CAAF trumpet the same argument. Interestingly, the harmless error analysis is comparably rather bland and until the analysis of the larceny, where Judge Ryan makes the obvious point, as JO'C already commented, that "there is a qualitative difference between the cross-examination permitted by the military judge and the prohibited inquiry into a failed romantic, sexual relationship." A final turn of phrase from Judge Ryan sums up her analysis,

Adding insult to injury, the Government exploited the very evidentiary limitation it requested in closing argument. "Are we supposed to believe that [HM2 C] or somebody else went out and spent $2,700.00 on tools to set this up because she’s mad at somebody? That strains all logic; it’s just not credible."

The dissent takes exception with the level of deference to the military judge's findings and actually takes issue with the qualitative difference suggested by the majority. Judge Baker writes, "It equally 'strains all logic' to suggest that an angry, vengeful lover would go to such extremes, but that an 'angry, vengeful friend' would not." I guess Judge Baker doesn't watch a lot of Jerry Springer.

Dept. of the Navy Art. 15 "Representation"

A few posts back, we discussed, here, a recent article from the new Journal of Military and Veterans Law. The article, Sailors and Marines Have Fewer Legal Rights than other Military Members as Their Military Lawyers Are Restricted in the Pre-Article 15 Advice They May Provide, 1 J. Mil. & Vet. L. 1 (2007), discussed (among other issues) the Navy Dept's policy of restricting the ability of lawyers to form an attorney client relationship with "clients" seeking pre-Art. 15 counseling. Showing just how much CAAFlog follows every one's comments on the site, he noticed that one of the commentors recently cited a change in the JAGMAN that potentially solved the representation issue, here. "Interested" said...

I believe the new JAGMAN (Section 0131) cures the concerns raised in the article. The section redefines and broadens the scope of permissible attorney-client relationships. It provides a much more workable and realistic standard. Under the new guidance as I interpret it, defense counsels can freely consult and advise clients pre-NJP without IMC or detailing implications.

While the commenter held out hope that the Navy cured the obvious conflict between Dept. policy and almost every state bar's rule on confidentiality and attorney client relationship formation, see e.g. Calif. Bar Interim Op. No. 95-0015 (telephone legal advice "service's advisory message stating that there is no attorney-client relationship is not by itself sufficient to avoid the formation of the relationship"), alas, the cure does not appear to withstand scrutiny. The following provisions so limit the applicability of the rule in JAGMAN 0131, that NJP counseling seemingly does not even fall within the ambit of the rule on attorney-client relationships:

0131b(2)(1) "Proceeding". As used in this section, "proceeding" means a trial - level proceeding by general or special court-martial or an investigation under Article 32, UCMJ.

0131b(3) "Attorney-client relationship". For purposes of this section, an attorney-client relationship exists between the accused and requested counsel when counsel and the accused have had a privileged conversation relating to a charge pending before the proceeding, and counsel has engaged in active pretrial preparation and strategy with regard to that charge. A counsel will be deemed to have engaged in active pretrial preparation and strategy if that counsel has taken action on the case which materially limits the range of options available to the accused at the proceeding.

0131b(3)(b) Actions that, in and of themselves, will not be deemed to constitute active pretrial preparation and strategy" include, but are not limited to: discussing the legal and factual issues in the case with the accused; discussing the legal and factual issues in the case with another person under the protection of the attorney-client privilege, such as another defense counsel; performing legal research dealing with the subject matter of the case; representing the accused in the review of pretrial confinement under R.C.M. 305, MCM; representing the accused in appellate review proceedings under Article 70, UCMJ; or providing counseling to the accused concerning Article 15, UCMJ. These actions should be appraised under a totality of the circumstances test to determine if they constitute "active pretrial preparation and strategy."

(emphasis added). I don't profess to be well read on JAGMAN 0131 or clairvoyant regarding the JAG's intent in amending section 0131. But, in a Chevron world, that's girlie-man agency discretion not military deference, JO'C, I'd say the portions I read are fairly clear that the JAG did NOT intend to alter the previous policy of no A-C relationship being created at pre-mast counseling. Thoughts?

CAAF supports the attorney-client relationship -- and motherhood

I have previously noted that CAAF seems to be taking a keen interest in the attorney-client relationship this term. Among other actions, CAAF has specified issues scrutinizing the division of authority between attorney and client, United States v. Larson, __ M.J. ___, No. 07-0263/AF (C.A.A.F. Nov. 29, 2007) (order), provided two opportunities for the Air Force Court to quit listing lawyers as counsel for appellant unless the lawyers had actually entered an appearance in the case, United States v. Roach, __ M.J. ___, No. 07-0870/AF (C.A.A.F. Nov. 21, 2007) (summary disposition), and denied the government's attempt to sever an attorney-client relationship between an Air Force appellant and his government-provided civilian attorney (moi). United States v. Miller, __ M.J. ___, No. 07-5004/AF (C.A.A.F. Jan. 7, 2008) (order).

Today CAAF once again protected the attorney-client relationship, in a subtle but laudable manner. My colleague Capt Tiaundra Sorrell is the appellate defense counsel in United States v. Perez, No. 08-5002/AF. She is also great with child. CAAF recently scheduled oral argument in the Perez case for 12 March. That was problematic, because if all goes well, Capt Sorrell will be nursing a new-born by 12 March. So Capt Sorrell filed a motion asking CAAF to move her oral argument up. Today it did, adding the Perez case to the schedule for 5 February. As a result, Senior Airman Perez will be represented at CAAF by the lawyer with whom he has an established attorney-client relationship. This term may be shaping up as the Year of the Attorney-Client Relationship.

Unpacking McCracken

First let's start with the easy and obvious point about the McCracken opinion that CAAF issued on Friday: all five judges agreed that NMCCA's resolution of the case was erroneous. Let's look at what NMCCA did.

Sgt McCracken was charged with a number of offenses including rape and adultery. The members found him not guilty of rape, but guilty of indecent assault as an LIO and guilty of adultery (plus a drunk and disorderly conviction). NMCCA concluded that the government hadn't proven beyond a reasonable doubt that Sgt McCracken had committed indecent assault. The panel then split 2-1 on the consequences of that decision. The NMCCA panel's majority affirmed a finding of guilty to indecent acts instead. Senior Judge Couch in dissent maintained that the majority erred by doing so because the theory upon which the majority affirmed a finding to indecent acts hadn't been presented to the members.

Sgt McCracken was carrying on a relationship while deployed in Iraq with a corporal who was married to an undeployed Marine. Until the night that led to the charges against Sgt McCracken, the relationship hadn't included intercourse. The married corporal testified that on that night, the two engaged in consensual "heavy petting" in Sgt McCracken's rack followed by Sgt McCracken taking off her bra against her wishes and then inserting his penis into her vagina against her wishes. Two other male Marines were in the room while all this was going on. Sgt McCracken denied that any nonconsensual activity took place. One of Sgt McCracken's roommates, who understandably considered the events that occurred in his room highly inconsiderate, reported it the following day.

In light of the consensual past relationship and the absence of any evidence that the married corporal reasonably manifested a lack of consent, NMCCA set aside the finding of guilty to indecent assault. United States v. McCracken, No. NMCCA 200600484, slip op. at 9 (N-M. Ct. Crim. App. Jan. 29, 2008). The NMCCA majority then observed:

We do, however, find that the evidence is legally and factually sufficient to support a finding of guilty to the lesser included offense of indecent acts with another. The appellant's sexual interactions with Cpl M, a married Marine in his squadron, while in his BEQ room in the presence of his roommates, and which were witnessed by them, were indecent. Prejudice to good order and discipline was evident when Cpl Labounty hurled an alarm clock at the couple from his rack across the room when he finally became fed-up with their antics.

Id., slip op. at 9-10 (internal citations omitted).

Here are the main points of contention in CAAF's decision.

1. WHY is NMCCA's opinion erroneous?

A three-judge majority of CAAF concluded that NMCCA erred because, as a matter of law, "under the circumstances of this case, open and notorious indecent acts under Article 134 . . . was neither expressly nor inherently a lesser included offense of the charged offense of rape under Article 120 . . . ." United States v. McCracken, __ M.J. ___, No. 08-0440/MC, slip op. at 2 (C.A.A.F. July 10, 2009). The majority explained that NMCCA "affirmed on the ground that McCracken's conduct was open and notorious, which was not the factual basis upon which members were instructed" concerning an indecent acts LIO. Id., slip op. at 3. In his separate opinion, Judge Stucky flatly concludes that indecent acts isn't an LIO of rape. Judge Baker also concludes that the indecent acts conviction must be set aside, because NMCCA affirmed the indecent acts conviction "on the ground that Appellant's conduct was open and notorious" and there's no way to know whether the members would have voted to convict Sgt McCracken on that basis. I may be misreading the majority's opinion or Judge Baker's opinion or both, but to me it appears that they reverse NMCCA and set aside the indecent acts conviction on the same ground.

2. What is the right remedy for NMCCA's error?

This issue seems to be the most clearly resolved. Sgt McCracken was originally sentenced to confinement for one year, forfeiture of all pay and allowances, a BCD, and reduction to E-1. Long after McCracken's entire period of confinement had elapsed, the NMCCA majority reassessed his sentence after reducing the indecent assault conviction to an indecent acts conviction and affirmed a sentence of confinement for six months, a BCD, and reduction to E-1. After setting aside the indecent acts conviction, CAAF was left with McCracken's convictions for adultery and drunk and disorderly. The CAAF majority concluded that setting aside the indecent acts conviction had "dramatically change[d] the penalty landscape in this case," thus requiring a sentence rehearing. Judge Baker didn't address the remedy, thus apparently agreeing with the majority. Judge Stucky summarily indicated that "[w]ith regard to the remedy, rather than order a sentence rehearing, I would remand to the United States Navy-Marine Corps Court of Criminal Appeals for sentence reassessment."

3. Can one offense be a lesser-included offense of another offense based on their inherent relationship rather than on their elements?

Judge Stucky's opinion is the only one of the three to expressly address this issue. Here's how it arises. In the first sentence of the majority opinion, in an example of the BLUF format of opinion writing (which I love), Judge Erdmann writes, "we conclude as a matter of law that under the circumstances of this case, open and notorious indecent acts under Article 134 . . . was neither expressly nor inherently a lesser included offense of the charged offense of rape . . . ." McCracken, slip op. at 2 (emphasis added). This language doesn't directly indicate that one offense can be considered an LIO of another offense due to their inherent relationship, but it does seem to suggest, by negative implication, an endorsement of that concept. In his dissent, Judge Stucky sharply rejects that concept, observing that "[m]ore than fifteen years ago, this Court abandoned the 'inherent relationship' and 'fairly embraced' tests for lesser included offenses in favor of a statutory elements test." Citing the Supreme Court's opinion in Schmuck v. United States, 489 U.S. 705 (1989), Judge Stucky observed, "One offense is not a lesser included offense of another 'unless the elements of the lesser offense are a subset of the elements of the charged offense.' Schmuck, 489 U.S. at 716." Because indecent acts is an Article 134 offense and the terminal element of a 134 offense is not an element of a 120 offense, Judge Stucky concludes that the former can't be an LIO of the latter. In his separate concurrence, Judge Baker poses four questions, two of which implicate this point from Judge Stucky's separate opinion:

(2) Whether the elements test articulated in Schmuck v. United States, 489 U.S. 705, 716 (1989), precludes the President from delineating certain Article 134, UCMJ, offenses as lesser included offenses of enumerated offenses absent a statutory change to the enumerated offense;

(3) Whether the due process principles advanced in Schmuck can, as a matter of law, be satisfied through mechanisms of fair notice other than the elements test.

The majority in McCracken observed that such questions "are reserved for another day." McCracken, slip op. at 4 n.2. That day is coming soon. On 1 July, CAAF granted review of this issue:

WHETHER APPELLANT'S CONVICTION FOR INDECENT ACTS WITH ANOTHER MUST BE SET ASIDE BECAUSE THE MILITARY JUDGE ISSUED ERRONEOUS AND MISLEADING INSTRUCTIONS SUPPORTING INDECENT ACTS AS AN AVAILABLE LESSER-INCLUDED OFFENSE TO THE ORIGINAL RAPE CHARGE AND THE RESULTING CONVICTION UNDER CHARGE I AND ITS SPECIFICATION AMOUNTED TO A FATAL VARIANCE.

United States v. Jones, __ M.J. ___, No. 09-0271/AF (C.A.A.F. July 1, 2009) (order).

Despite the majority's "reserv[ing] judgment" language in footnote 2, Judge Baker's concurrence suggests that "[i]t may well be that the majority opinion currently resolves each of [four questions he raises] by implication." In addition to the two questions noted above, Judge Baker asks:

(1) Whether or not the offenses expressly listed by the President as violations of Article 134, UCMJ, such as indecent acts, that are identified in the Manual for Courts-Martial, United States as a lesser included offense to a particular enumerated offense can satisfy the requirements of Article 79 . . . as a 'necessarily included' lesser offense'[];

. . . .

(4) What appellate effect, if any, does an agreement by the parties at trial that an offense is a lesser included offense have on the greater offense being considered on appeal.

Judge Baker's concurrence asks four questions, but it raises another question in my mind: what does footnote 1 of Judge Baker's concurrence mean?

I must be misconstruing footnote 1. In his concurrence, Judge Baker writes, "we cannot know whether the members would have found the act in question indecent because it was 'open and notorious' based on all the facts and circumstances had they not found Appellant guilty of indecent assault." He then drops a footnote that begins, "Had the members rejected the greater offense of rape and indecent assault, they would necessarily have been left with private consensual sexual conduct between unmarried persons in the absence of the evidence offered by the defense." Huh? Since Sgt McCracken was found guilty of adultery, presumably apart from any evidence offered by the defense, the members knew that this was NOT conduct "between unmarried persons." NMCCA's opinion tells us that the corporal with whom Sgt McCracken engaged in sexual activity was married to a Marine sergeant. So what does this language mean? Also, is conduct that occurs in a barracks room inhabited by two other Marines "private"? I would say not -- I certainly wouldn't say that the members "necessarily" would find such conduct private. Finally, what does "in the absence of the evidence offered by the defense" mean? This case doesn't involve an argument that the military judge erroneously denied a motion for finding of not guilty. Why would we look at the evidence "in the absence of the evidence offered by the defense"? When the case went to the members, that evidence was before them as well.

As I said, I must be misreading Judge Baker's concurrence, since it doesn't seem possible that he could have been suggesting that the sexual conduct in this case involved unmarried Marines. Can someone please explain to me what I'm missing?

The majority's opinion strikes me as a very narrow decision answering the narrow granted issue: "WHETHER THE LOWER COURT ERRED BY AFFIRMING A LESSER-INCLUDED OFFENSE BASED ON A THEORY OF CRIMINALITY NOT PRESENTED BY THE GOVERNMENT AT TRIAL." I see Judge Stucky's point about a negative implication suggested by the majority's opinion, though the majority certainly does not indicate that it is making law on that issue, but rather eschews doing so in footnote 2. And I'm largely confused by Judge Baker's concurrence, which seems to decide the issue on the same basis as the majority opinion.

Fortunately Jones will revisit this area of the law early next term. That case should answer many of the questions that McCracken raises.

CAAF grant

CAAF granted review of these issues yesterday:

I. Whether the evidence is legally sufficient to support the finding of guilty for disobeying a lawful command where there was no evidence that the command was directed personally to Appellant or that Appellant knew it was from a superior commissioned officer.

II. Whether the order in the specification of Charge II was a lawful order when the evidence indicated the order's purpose was to accomplish some private end.

United States v. Ranney, __ M.J. __, No. 08-0596/AF (C.A.A.F. Nov. 6, 2008).

AFCCA's opinion in the case is available here. The second issue in the case involves an Air Force E-6 dating a Marine Corps (or, in the words of the AFCCA opinion, "Marine Corp") E-3. Nothing in any standing order prohibited the relationship and there was no direct superior-subordinate relationship between the two. But the Marine E-7 for whom the Air Force E-6 worked ordered him to the stop the "offensive" aspect of his relationship with the E-3. Apparently he didn't.

AFCCA agreed with Technical Sergeant Ranney that the military judge erred by having the members decide the question of the order's legality rather than deciding it himself. Id., slip op. at 6. But AFCCA went on to hold that the order was legal. AFCCA reasoned:

[T]he evidence in the record establishes that GySgt F's reason for issuing the order was his concern regarding the conflict between the duties imposed upon an NCO with regard to reporting non-compliance of junior Marine enlisted members with various restrictions placed upon their social activities and the existence of a relationship between an NCO and a junior enlisted member which tended to engender such non-compliance. He expressed concern about the impact such a situation would have on other junior enlisted members within the unit -- in essence its impact on the discipline and moral [sic] of the unit, clearly a traditional concern of those in supervisory positions within the military.

Conclusion

Had there been a supervisory relationship between the appellant and LCpl M within the unit, the basis for GySgt F's concerns would have had more gravitas. Yet, we are charged with discerning whether there existed a rational nexus between military duty and the order in question, not to parse where that military duty sits on a continuum from greatest to least. Based on the evidence in the record, we conclude that such a nexus existed in this case, and consequently the order was lawful.

Id., slip op. at 6-7.

CAAF will now review that conclusion. And my guess is that CAAF will consider something that AFCCA didn't discuss: the gunny's order's implications for Technical Sergeant Ranney's First Amendment right to freedom of association. See generally United States v. Brown, 45 M.J. 389 (C.A.A.F. 1996) (discussing the extent to which the First Amendment right to freedom of association applies to servicemembers).

Extraordinary relief

I recently gave a lecture about CAAF's extraordinary relief practice. I've been debating whether to take the time to turn it into a short piece for the Army Lawyer -- a decision that implicates our recent discussion about whether law reviews are relevant.

But regardless of what I ultimately decide, you certainly won't see the piece in the Army Lawyer any time soon due to an increase in the operational tempo of my day job. So I'll share a few of the more interesting findings with you here at the risk of depressing the Army Lawyer's future sales.

According to CAAF's official statistics, from the 2000-2006 terms, it received a total of 127 writ appeals and 84 original extraordinary relief petitions.

Again according to CAAF's official statistics, in those same terms, it granted 8 petitions for extraordinary relief and remanded another 10.

However, both official figures appear to understate the actual numbers. By my count, there are actually 20 cases in which CAAF has granted or remanded a petition for extraordinary relief from the start of the 2000 term through the end of the 2006 term, plus two more between the start of the 2007 term and 5 June 2007 (the last day for which the daily journal is available online).

Here is one of my most interesting findings: all 22 of those cases fall within at least one of four categories:

(1) Counsel issues (not including IAC) (9)
(2) Challenge to a CCA's handling of a direct appeal (7)
(3) Enforcement of a military appellate decision (6)
(4) Capital cases (4)

(4 cases fall into two categories)

That reflects a surprising level of coherence in CAAF' extraordinary writ practice and suggests that, in practice, CAAF's judges viewed these as the most "extraordinary" issues warranting issuance of a writ.

Here's another surprising finding: of the 22 cases in which CAAF granted or remanded a petition for extraordinary relief, only 3 arose at the trial level. The other 19 arose at the appellate or post-appellate stages. All 3 cases that arose at the trial level and involved either governmental or judicial impediments to the defense counsel's representation of the accused (Wilson, Shadwell, Schmidt).

Here's something else that, at least at first blush, is surprising: while CAAF's Rule 4 provides that "[a]bsent good cause, no [original petition for extraordinary relief] shall be filed unless relief has first been sought in the appropriate Court of Criminal Appeals," 6 of the 10 cases in which CAAF granted extraordinary relief since the start of its 2000 term have been original petitions, while only 4 have been writ appeals. But that figure is somewhat less surprising in light of the prevalence of granted and remanded writs challenging some practice of a CCA -- cases in which the original writ would obviously be filed at CAAF rather than at the CCA, since it is the CCA's whose actions are being challenged.

Finally, for any of you interested in seriously pursuing these issues, below are the 22 cases I found in which CAAF either granted or remanded a petition for extraordinary relief. If you are aware of any other such cases, please let me know.

2000 Term

United States v. Leavitt, 54 M.J. 323 (C.A.A.F. 2000) (remanding to AFCCA for reconsideration of right to appellate discovery) [Category 2]

2001 Term

United States v. Wilson, 54 M.J. 450 (C.A.A.F. 2001) (summary disposition) (granting writ appeal to allow current defense counsel to communicate with former defense counsel) [Category 1]

United States v. Campbell, 54 M.J. 349 (C.A.A.F. 2000) (remanding to AFCCA for reconsideration of right to appellate discovery) [Category 2]

2002 Term

United States v. Nguyen, 56 M.J. 252 (C.A.A.F. 2001) (summary disposition) (granting writ appeal to allow continued representation by civilian counsel) [Category 1]

United States v. Brown, 56 M.J. 351 (C.A.A.F. 2002) (summary disposition) (granting petition for extraordinary relief to compel remand to convening authority as ordered by CAAF’s original holding) [Category 3]

United States v. Washington, 56 M.J. 352 (C.A.A.F. 2002) (summary disposition) (same) [Category 3]

2003 Term

United States v. Shadwell, 58 M.J. 142 (C.A.A.F. 2003) (summary disposition) (granting writ appeal petition seeking reversal of trial judge’s ruling disqualifying civilian defense counsel because of a conflict of interest) [Category 1]

Diaz v. JAG, 59 M.J. 34 (C.A.A.F. 2003) (post-trial/appellate delay) [Category 2]

2004 Term

United States v. Schmidt, 60 M.J. 1 (C.A.A.F. 2004) (per curiam) (granting writ appeal to lift restrictions on an accused’s communications with his counsel) [Category 1]

Toohey v. United States, 60 M.J. 100 (C.A.A.F. 2004) (post-trial/appellate delay) [Category 2]

2005 Term

Kreutzer v. United States, 60 M.J. 453 (C.A.A.F. 2005) (summary disposition) (granting mandamus petition to compel the United States "to remove Petitioner from death row at the United States Disciplinary Barracks and place Petitioner in appropriate custody in light of the circumstances and status of his case") [Categories 3, 4]

Buber v. Harrison, 61 M.J. 70 (C.A.A.F. 2005) (summary disposition) (granting habeas petition to compel United States to comply with the Army Court of Criminal Appeals' holding) [Category 3]

Lucero v. United States, 61 M.J. 147 (C.A.A.F. 2005) (remanding to determine whether petitioner is seeking to sever his attorney-client relationship) [Category 1]

Parker v. United States, 60 M.J. 446 (C.A.A.F. 2005) (remanding to NMCCA with guidance about panel membership) (capital case) [Categories 2, 4]

Goodwin v. TJAG, 60 M.J. 428 (C.A.A.F. 2004) (remanding to determine whether petitioner is seeking to server his attorney-client relationship) [Category 1]

Young v. Commandant, 60 M.J. 428 (C.A.A.F. 2004) (remanding to determine whether petitioner is seeking to sever attorney-client relationship) [Category 1]

Taylor v. Commandant, 60 M.J. 429 (C.A.A.F. 2004) (remanding to determine whether petitioner is seeking to sever his attorney-client relationship) [Category 1]

Walker v. United States, 60 M.J. 354 (C.A.A.F. 2004) (remanding to NMCCA with guidance about panel membership) (capital case) [Categories 2, 4]

United States v. Flynn, 60 M.J. 389 (C.A.A.F. 2004) (remanding to NMCCA for compliance with Jenkins) [Categories 2, 3]

2006 Term

Loving v. United States, 64 M.J. 132 (C.A.A.F. 2006) (remanding for DuBay hearing) (capital case) [Category 4]

2007 Term

Lovett v. United States, 64 M.J. 232 (C.A.A.F. 2006) (summary disposition) (granting mandamus petition to order the Judge Advocate General of the Air Force to provide appellate defense counsel "to represent Petitioner for the purposes of review of his court-martial under Article 67a, UCMJ") [Category 1]

Dearing v. United States, 64 M.J. 364 (C.A.A.F. 2006) (summary disposition) (granting mandamus petition to compel the United States "either to release Petitioner from confinement or promptly determine whether he should be held in pretrial confinement pending a rehearing") [Category 3]

Call for papers

Pace Law School has asked us to post this call for papers:

Call for Articles, Essays, and Book Reviews: National Security and Constitutional Law
Proposals due May 15, 2009

The editors of Pace Law Review invite proposals from scholars, researchers, practitioners, and professionals for contributions to a special issue on the relationship between national security and constitutional law to be published in Winter 2010.

Pace Law School is dedicated to advancing a greater understanding among scholars and the legal community concerning the role of constitutional law in national security concerns. This law review issue will promote an ongoing discourse on the balance between constitutional rights and effective national security.

Please submit proposals of no more than 500 words by attachment to plr@law.pace.edu by May 15, 2009. All proposals should include the intended author’s name, title, institutional affiliation, contact information, and should concern issues related to the relationship between national security and constitutional law. Book review proposals should also include (a) the title and publication date of the book proposed for review; (b) a description of the importance of the book to the general topic; and (c) any other information relevant to the book or proposed review (e.g., the reviewer’s expertise or any relationship with the author). Authors are also welcome, but not required, to submit a CV. We expect to make publication offers by June 1. We encourage clear, concise, and accessible writing that will be of use to lawmakers, attorneys, and students.

Completed manuscripts of book reviews and essays will be due July 15, 2009. Completed manuscripts of scholarly articles will be due August 1, 2009.

NMCCA issues two published opinions

NMCCA released two published opinions today, both authored by Senior Judge Geiser. Neither of them is yet on NMCCA's web site, so I've posted them here and here.

Bagstad is easily the more interesting of the two. United States v. Bagstad, __ M.J. ___, No. NMCCA 200602454 (N-M. Ct. Crim. App. Dec. 30, 2008). In Bagstad, one of the detailed members -- a Marine Corps captain -- wrote the fitrep of another member -- a gunnery sergeant. The trial defense counsel lodged an implied bias challenge to the captain, arguing that he writes another member's fitrep, that the CA (the CO of a Combat Service Support Group) is his reporting senior, that he and the CA discussed military justice and the CA's view of military justice, and that the captain was reluctant to speak about his conversation with the CA. The military judge had asked for and received assurances from the gunny that he wouldn't be inhibited by the captain and from the captain that he wouldn't feel undermined if the gunny disagreed with him. The military judge denied the challenge to the captain, in the process disagreeing with the defense's characterization of the captain's discussion with the CA. The defense then used its peremptory challenge against another enlisted member.

That's where things get interesting. The panel was left with three members. Two-thirds of those members (the percentage necessary to convict) were in a direct reporting relationship. The appellate defense counsel in the case (Capt Burgos) alertly noted that that's awfully similar to the situation in United States v. Wiesen, 56 M.J. 172 (C.A.A.F. 2001), where CAAF held that the military judge erred by denying a defense challenge for cause against a colonel who was in the direct reporting chain of a sufficient number of members to control the case's outcome.

But, held NMCCA, this case is sufficiently distinguishable from Wiesen to result in a different outcome. NMCCA reasoned:

Although we are faced with a panel containing a senior-subordinate relationship comprising two-thirds of the panel membership, as in Wiesen, the contextual facts are quite different. First, this case involves a [challenge to a] company-grade officer as opposed to [Wiesen, which involved a challenge to] a senior field-grade officer. This difference alone serves to significantly diminish a knowledgeable perception that military deference to a senior officer would play a role in deliberations. We further note that GySgt Walston had seven more years of experience in the Marine Corps than Capt Stojka and was three years his elder. This inversion of military and life experience between the senior and subordinate does not appear to have been the case in Wiesen. This inversion of experience also significantly diminishes any knowledgeable perception that GySgt Walston would blindly follow his supervisor's lead. Moreover, the other panel member, 1stSgt Nguyen, like GySgt Walston, was a senior noncommissioned officer (NCO) with considerable experience; he was a veteran of both the conflicts in Afghanistan and Iraq, and had 14 years of service in the Marine Corps. The camaraderie between, and respect and deference for, senior NCO's, is significant. The presence of two experienced NCO's on the panel further weakens any reasonable perception that GySgt Walston would be improperly influenced by Capt Stojka's supervisory position.

Further, unlike Wiesen, which featured multiple subordinates, the instant case reveals only a single senior-subordinate relationship. The six senior-subordinate relationships in Wiesen included three lieutenant colonels that a knowledgeable public might reasonably perceive as competing for promotion. This fact alone creates a source of potential pressure for the subordinates to attempt to curry favor from their superior. No such competitive grouping exists in the instant case.

Bagstad, No. NMCCA 200602454, slip op. at 5.

Today's other published NMCCA opinion, United States v. Trew, __ M.J. ___, No. NMCCA 200800250 (N-M. Ct. Crim. App. Dec. 20, 2008), involves the deathly boring Walters line of cases. See United States v. Walters, 58 M.J. 391 (C.A.A.F. 2003). That line of cases provides that a CCA may not affirm a finding of guilty where a divers occasions spec has been changed to a single occasion spec unless the record makes clear what single occasion resulted in the conviction. In Trew, a military judge made comments after announcing findings indicating that she found the accused guilty of one battery rather than divers batteries. NMCCA found that in the peculiar context of this case, it was clear which occasion she was referencing, thereby delivering the case from Walters' clutches (I'm paraphrasing).

AFCCA holds an officer can be convicted for private, consensual sexual conduct even if it's protected by Lawrence and Marcum

AFCCA's Harvey decision is significant. It involves an Air Force chaplain in Turkey who had a consensual homosexual relationship with two Turkish men. He was found guilty of conduct unbecoming an officer and gentleman for engaging in sodomy with one of the two Turkish men.

AFCCA concluded that the private, consensual sexual relationship was protected under both Lawrence v. Texas, 539 U.S. 558 (2003), and United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004). But AFCCA nevertheless affirmed the conviction. Here's how the court framed the issue: "In a case of first impression, we must decide whether conduct that is permissible and survives scrutiny under Marcum can nonetheless be proscribed as conduct unbecoming an officer and a gentleman." Yes, held the court. "Private conduct may constitute an offense under Article 133, UCMJ, and there is no requirement that the conduct be otherwise criminal."

Turning to the facts of the case, the court reasoned:

[W]e conclude that the fact that conduct may fall within a recognized liberty interest under the Constitution does not mean that the conduct cannot be proscribed under Article 133, UCMJ. Such is true even if the infringement of the liberty interest would not pass constitutional scrutiny as a violation of another punitive article, e.g., Article 125, UCMJ. This is such a case. In the case sub judice, the appellant's act of performing fellatio on a Turkish national at a time when the appellant, an officer, was serving as a representative of the United States military abroad, and at a time when the appellant had been confronted about and knew rumors abounded on and off base about his alleged homosexual relationship with another Turkish national (Mr. MH), evinced, as the trier of fact found, a degree of indecorum that disgraced and dishonored the appellant and seriously compromised his standing as an officer. In the final analysis, Article 133, UCMJ, as applied to the appellant in this case, is constitutional.

Harvey, No. ACM 36641, slip op. at 6 (footnote omitted).

As if that weren't significant enough, AFCCA then proceeded to announce another major holding. AFCCA was confronted with the question of whether the Marcum factors are questions of law to be determined by the military judge or questions of fact to be determined by the members after being instructed about them. They are the former, held AFCCA. The Marcum factors are legal "matters upon which only the military judge could rule." Id., slip op. at 7.

My guess is that this significant case will be further reviewed by CAAF. Major kudos (or, actually, lieutenant general kudos) go to the Judge Advocate General of the Air Force for certifying this subjurisdictional case to AFCCA. When CAAF either denies a petition for review in this case--thus allowing AFCCA's opinion to remain binding precedent in the Air Force--or grants the petition and establishes law for the entire military justice system, the law will be clearer than it was before. And that seems like a sound basis for a Judge Advocate General to exercise the Article 69(d) authority to refer a subjurisdictional case to a Court of Criminal Appeals. In fact, the system would likely benefit if there were more such referrals or, better yet, an accused were given a right to appeal a subjurisdictional case to a Court of Criminal Appeals.

CAAF grants review in conditional threat case

On 19 January, CAAF granted review in the case of United States v. Brown, No. 06-0857/AF. The granted issue is "Whether appellant's contingent declaration constitutes communicating a threat."

In an unpublished opinion, the Air Force Court explained that Senior Airman Brown and Staff Sergeant S weren't married, but had a baby together. They had an argument about her relationship with another man. SSgt S provides this account that led to Brown's conviction for communicating a threat:

He was just going on and on about how he couldn't believe that I did that to him and he said that if he ever saw the guy again that he would kill him and he said that if I wasn't his baby's mother that he would kill me too and a few minutes later he changed it and said that if my son wasn't there then I would be dead.

'

United States v. Brown, No. ACM 36195, slip op. at 2 (A.F. Ct. Crim. App. 20 June 2006).

Now here is the cross-examination:

Q. Now, you mentioned in your testimony that [the appellant] stated to you that, "If I wasn't the baby's mother he would kill you", right?

A. He said, "If I wasn't his baby's mother then I would be dead".

Q. But you are his baby's mother, correct?

A. Yes, I am.

Q. And then he changed his statement to say, "If the baby wasn't here, you'd be dead", correct?

A. Yes, sir.

Q. But the baby was there, is that correct?

A. Yes, sir.

Id. at 3.

The Air Force Court explained that the "crux of the appellant's argument is that the words, if used as SSgt S testified, did not express 'a present determination or intent to wrongfully injure the person, property, or reputation of another person, presently or in the future.'" Manual for Courts-Martial, United States (MCM), Part IV, AP 110(b)(1) (2005 ed.).

The Air Force Court then proceeded to split the baby, so to speak.

First, the good news for Brown: "We agree with the appellant that the alleged threat to kill SSgt S, were she not his baby's mother, did not amount to a present determination or intent to wrongfully injure SSgt S. The utterance was conditioned on a variable that could not occur. Therefore, the condition negated the threat." Id. at 4.

Now the bad news for Brown: "The revised threat, to kill SSgt S if her son wasn't there, is another matter. Although SSgt S's son was there, we are convinced this was a threat in the context of the surrounding circumstances and the appellant's literal language. The relationship between the appellant and SSgt S was turbulent and their arguments occasionally turned physical. Nevertheless, the language of this declaration was distinctive in that the appellant, according to SSgt S, never threatened to kill her before - and the language was accompanied by a blow to SSgt S's head as she started to leave with their son." Id. at 5.

Regardless of the correct outcome of the granted issue, this seems like a typical instance of military overcharging. The contemporaneous battery on SSgt S is surely what we are really concerned about here. If Brown had said what he did without engaging in any physical violence, would the charge have even made it to a court-martial? I think not -- even with his other unrelated acts of misconduct. I understand overcharging for contingencies of proof purposes -- hey, I started out as a trial counsel -- but can't the government clean up cases like this and avoid appeals by asking to dismiss minor hitchhiker offenses like this once the members have found the accused guilty of the other offense? (In fairness to the trial counsel, though, the Air Force Court's opinion doesn't make absolutely clear whether the single Article 128 spec of which Brown was convicted arose from this incident, so it is possible that communicating a threat was the only conviction related to these events.)

--Dwight Sullivan

Two published decisions in one day! United States v. Gallagher

On February 28, 2007, the Navy-Marine Corps Court of Criminal Appeals decided United States v. Gallagher. The case raises interesting issues involving M.R.E. 404(b) and the 4th Amendment. Gunnery Sergeant Gallagher lived in military housing with his wife and children. His wife worked part-time as a manager at blockbuster video. Gunnery Sergeant Gallagher placed a camera in the bedroom of a ten-year-old neighbor and fellow Marine. On November 2, 2001, while NCIS agents were speaking with Gunnery Sergeant Gallagher on Paris Island, other agents were dispatched to his home to seek a permissive search authorization from his wife. The agents were looking for photographs of the ten-year-old neighbor. His wife consented, and she waited in the living room as the agents searched the family home. During a search of the garage, which the family had converted into a common area, the agents came across a man's briefcase sitting next to a refrigerator. Whether the briefcase was locked was disputed at trial, but the Court sided with the NCIS agents who testified that it was not. They opened the briefcase and found child pornography. They then took the briefcase into the living room where, for the first time, Mrs. Gallagher told them that the briefcase belonged to her husband.

The case centers on the reasonableness of the search of a closed briefcase in the family home and whether Mrs. Gallagher's consent to search was valid with respect to the briefcase. In finding the search to be reasonable, the Court relied heavily upon United States v. Melgar, 227 F.3d 1038 (7th Cir. 2000). In Melgar, a number of men and women were in a hotel room. One of the women who had rented the room gave consent to search the room. During the search, agents found a floral purse and opened it. The Seventh Circuit noted, "generally, consent to search a space includes consent to search containers within that space where a reasonable officer would construe the consent to extend to the container." The Court reasoned that law enforcement had no way of knowing that the floral purse found did not belong to the female renter who had consented to the search and that the search was reasonable under those circumstances.

I wonder if the NMCCA did not set itself up for reversal by relying so heavily upon Melgar. Is Melgar really that closely related to the situation in Gallagher? Did the NCIS agents really believe that the men's briefcase sitting beside the refrigerator could have belonged to Gallagher's stay-at-home wife or minor children? Perhaps she used the briefcase in her part-time duties at blockbuster. What if Gallagher had hidden the photographs in a humidor? How about a shaving kit? I suspect the result would have been the same at NMCCA. It is certainly possible that some women smoke cigars while shaving and carrying around men's briefcases. But, if the right to search the home is a close call, to which NMCCA is entitled some discretion, the next issue is not even close.

The government sought to introduce the testimony of VK. VK, then 21, would testify that, when she was 10, Gunnery Sergeant Gallagher had a sexual relationship with her. Gallagher was acquitted by an Ohio jury of the crime intercourse with VK in 1994. The government sought to introduce VK's testimony to rebut Gallagher's defense that he had innocently placed the video camera in VK's room to make a movie about the family home for her family. The Court found that Gallagher's alleged sexual relationship with VK when she was ten was logically and legally relevant to negate his claim of mistake of fact on the "peeping tom" offense. The Court cited the cases of United States v. Barnett, 63 M.J. 394 (C.A.A.F. 2006) and United States v. Thompson, 63 M.J. 228 (C.A.A.F. 2006), but did it read them? The prior bad acts in Barnett were much more similar to the charged misconduct than those in Gallagher, and the C.A.A.F. found them to be inadmissible.

Judge Vollenweider, M.R.E. 404(b) called. I am afraid it is bad news. You decision has less than a year to live.

Year of the Rat

A week from this coming Sunday, just a few blocks to the north and west of CAAF's stately courthouse, a parade will usher in the Chinese New Year. And what year will this be? The Year of the Rat.

Of course, rats and lawyers have sometimes been analogized to one another. In his serious -- no, serious isn't the right word -- in his scholarly 2005 book about lawyer jokes, Professor Galanter discusses what he calls the "single most prevalent of all current lawyer jokes." Marc Galanter, Lowering the Bar: Lawyer Jokes & Legal Culture 192 (2005): "Why have research laboratories started using lawyers instead of rats in their experiments? There are three reasons: first, there are more of them; second, the lab assistants don't get attached to them; and third, there are some things a rat just won't do." Id. Professor Galanter also adds what he calls "a wonderful coda" that I hadn't heard before: "One problem, though, is that no one has been able to extrapolate the test results to human beings."

So perhaps it is appropriate that CAAF's Year of the Attorney-Client Relationship, as I previously dubbed this Term, coincides with the Year of the Rat. And today, just as the Year of the Pig is preparing to give way to the Year of the Rat, CAAF issued an order and granted review of a petition that solidifies the 2008 Term as the Year of the Attorney-Client Relationship.

I have previously discussed the Air Force Appellate Government Division's motions to disqualify me and linked to this Air Force Court order rejecting the attempt. Today, using reasoning similar to that of the Air Force Court, CAAF rejected another of the motions to disqualify. CAAF ruled:

On consideration of Appellee's Motion to Disqualify, we note that Appellant is represented by appellate defense counsel qualified under Article 27(b)(1), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 870(a). Nothing in Article 70, UCMJ, 10 U.S.C. § 870 limits the discretion of the Judge Advocate General of the Air Force to offer Appellant the additional services of a civilian appellate defense counsel at government expense. Accordingly, it is, by the Court, this 28th day of January, 2008, ORDERED: That Appellee's Motion to Disqualify is denied.

United States v. Roach, __ M.J. ___, No. 07-0870/AF (C.A.A.F. Jan. 28, 2008) (order). This follows a previous CAAF order summarily rejecting a similar motion. United States v. Miller, __ M.J. ___, No. 07-5004/AF (C.A.A.F. Jan. 7, 2008) (order). Since the Solicitor General obviously won't go to the Supreme Court to argue that an Executive Branch official exceeded his authority by hiring a civilian lawyer to assist judge advocates representing servicemembers before military appellate courts, that would seem to definitively resolve this issue.

CAAF also granted review of two issues in Roach, including one that concerns appellate representation:

I. Whether the lower court erred by deciding Appellant's case in the absence of a substantive submission of Appellant's behalf despite this Court's case law holding that it is "error" for a Court of Criminal Appeals to decide a "case without assistance of counsel" for an appellant. United States v. May, 47 M.J. 478, 482 (C.A.A.F. 1998).

II. Whether the lower court erred by holding: (1) that it was not objectively unreasonable for the appellate defense counsel to fail to file a brief on Appellant's behalf during the 182 days between the expiration of Appellant's briefing deadline and the lower court's decision in Appellant's case; and (2) that Appellant demonstrated no prejudice, despite this Court's case law holding that where appellate counsel "do nothing" on an appellant's behalf, the "appellant has been effective deprived of counsel, and prejudice is presumed." United States v. May, 47 M.J. 478, 482 (C.A.A.F. 1998).

United States v. Roach, __ M.J. ___, No. 07-0870/AF (C.A.A.F. Jan. 28, 2008) (order granting review). [DISCLAIMER: as should be apparent from the earlier portion of this post, I'm one of SrA Roach's counsel.]

Here's a link to the Air Force Court's opinion. United States v. Roach, No. ACM S31143 (A.F. Ct. Crim. App. Sept. 13, 2007).

Judge Erdmann horns in on Judge Baker's turf

In United States v. Albaaj, __ M.J. ___, No. 07-0002/AR (C.A.A.F. June 21, 2007), Judge Erdmann horns in on Judge Baker's turf by writing the opinion in a member's challenge case. The opinion was unanimous.

Here is Judge Erdmann's helpful synopsis of the case's holding:

We conclude the member's failure to disclose his relationship with Albaaj's brother, Emad, constitutes juror misconduct. When viewed objectively, the circumstances of the relationship combined with the member's failure to disclose it to the military judge injure the perception of fairness in the military justice system. Most members in the same position would be prejudiced or biased. The decision of the Court of Criminal Appeals is therefore reversed.

Here is ACCA's unpublished decision in the case. Reading the two cases together leaves one wondering, to quote CAAF's opinion in Hollings, "whether [they] are reviewing a different record of trial." It is difficult to believe that ACCA actually ruled for the government in this case. A member not only knew a witness, but had sent emails disparaging the witness and the witness's honesty a mere 15 weeks before the court-martial. At the court-martial, the member fails to indicate that he knows someone by the witness's name during voir dire. Then, of even greater significance to CAAF, when the witness shows up and testifies, the member never says, "Oh, by the way, I know that guy and have called him a liar." Plus, the witness is the accused's brother. CAAF rightly concludes that this scenario undermines public confidence in the military justice system.

Consider these facts from CAAF's opinion: "[An] e-mail from [the member] suggest[ed]that Emad was 'trash[ing] the [office of which the member was the XO],' that Emad 'had his facts wrong,' and that Emad's communications outside Fort Carson were 'BS' that had a negative impact. In general, [the member] believed that Emad had misrepresented facts and had 'a personal agenda which is not based on the fact[s] or truth.'"

Incredibly, ACCA opines that a member with such a view of a defense witness who is also the accused's brother could not be successfully challenged for cause. United States v. Albaaj, No. ARMY 20000121, slip op. at 4 (A. Ct. Crim. App. Aug. 1, 2006). ACCA's statement that the member "never held any animosity toward the witness," id. at 5, seems ludicrous.

Interestingly, the CAAF decision even identifies the member by name; I don't think CAAF was too happy with LTC M (Ret.). Perhaps it should have directed some of its ire at ACCA's implausible opinion as well.

Defense victory; sad day for the defense

United States v. Simon, __ M.J. ___, No. 05-0563/MC (C.A.A.F. Nov. 27, 2006), represents a total abdications of trial defense counsel's and appellate defense counsel's duties. Unfortunately, as those of us in the military defense bar know, it is hardly unique. Simon should serve as a reminder to everyone in the defense bar of their obligations under United States v. Palenius, 2 M.J. 86 (C.M.A. 1977).

In Simon, 275 days passed from trial until the CA acted on the 36-page record. It doesn't appear that the trial defense counsel did anything to speed the process. Worse still, 572 days passed between the CA acting on the case at Camp Pendleton and the record finally showing up at the Washington Navy Yard. As Judge Baker pointed out at oral argument, in that amount of time the government "could have biked [the record of trial] across the country. They probably could have walked it." Still the trial defense counsel did nothing. In the meantime, Private Simon himself was losing his grip on reality and sinking into the clutches of mental disease. Once the record finally showed up at NAMARA, Simon's appellate defense counsel submitted the case without assigning any error, such as the gross appellate delay, and without ever contacting his client. As CAAF notes, "As a result, Appellant's first defense counsel did not learn of Appellant's mental health issues and did not bring those issues to the attention of the Court of Criminal Appeals." Simon, slip op. at 4.

Every defense counsel -- trial or appellate -- who reads Simon should vow, "Never again!" The hallmark of being a defense counsel is total dedication to the client. The trial defense counsel must continue representation until the appellate defense counsel takes over the case. And the appellate defense counsel must REPRESENT THE PERSON, not simply PROCESS THE RECORD. And trial defense counsel and appellate defense counsel must adopt a SYSTEM to ensure that no one falls through the cracks, like poor Private Simon.

CAAF (then CMA) called this to everyone's attention almost three decades ago. In Palenius, the court announced that "the prevailing practice among some trial defense attorneys of ceasing all activity on behalf of their clients and, in effect, terminating the relationship of attorney and client without the permission of their clients or of the courts can no longer be countenanced." 2 M.J. at 93. Yet almost thirty years after Judge Perry wrote those words, that practice remains if not prevailing, then certainly common. CMA continued, "The trial defense attorney can with honor and should maintain the attorney-client relationship with his client subsequent to the finding of guilty while performing the duties we set forth today until substitute trial counsel or appellate counsel have been properly designated and have commenced the performance of their duties, thus rendering further representation by the original trial defense attorney or those properly substituted in his place unnecessary." Id. If you are a military defense -- trial or appellate -- I implore you to go read Palenius RIGHT NOW. Then recommit yourself to following its dictates. Then implement a system for trial and appellate defense counsel to have CONTACT relief. Think of the client as a baton in a relay race. You have to pass him (or her) from one counsel to the other, without ever allowing the client to slip from one of your grasps. It is the right thing to do. It is ethically required. It is legally required. And it will avoid embarrassments like United States v. Simon. A system of contact relief would also let the counsel know that a case is overdue. If a trial defense counsel hasn't heard from an appellate defense counsel within a reasonable amount of time after the CA's action, then the trial defense counsel would know something is amiss. And if the appellate defense counsel doesn't receive the record within a reasonable amount of time, then the appellate defense counsel will know something is amiss. That isn't the way we operate now. But it should be.

CAAF did the right thing in Simon by setting aside the meaningless Article 66 review that Private Simon received the first time and sending the case back to do it right. Now we in the military defense bar must do the right thing by ensuring that the lofty goals of Palenius finally become the standard of practice in the military.

--Dwight Sullivan

And the Tony doesn't go to . . . the Journal of Military and Veterans Law

Every year, the American Theatre Wing awards one Tony for Best Revival of a Play and another for Best Revival of a Musical. If there were a third award from Best Revival of an Online Law Review, the Tony should not go to the Journal of Military and Veterans Law.

The original electronic journal by that name debuted in 1999. But it now seems to have disappeared from the web without a trace. If you go to its old URL, the William & Mary server will tell you, " The URL you requested was not found on the William & Mary webserver." Perhaps this is a cautionary tale for would-be web authors. I had an article in Volume 1, No. 1 of the Journal of Military and Veterans Law. I might as well have shoved my manuscript into a bottle and thrown it into the Chesapeake Bay.

But now there is a revived version of the Journal of Military and Veterans Law on the William & Mary server, though curiously without any links to content from the old journal of the same name. The web site tells us:

The Journal of Military and Veteran Law is a student edited electronic legal periodical published by the Military Law Society of the College of William & Mary Law School. The purpose of the Journal is to publish insightful and relevant essays and articles in the areas of national security, military and veteran law.

The first article in the revived JMVL is Commander (Ret.) Wayne L. Johnson, JAGC, USN's piece with the inharmonious title of Sailors and Marines Have Fewer Legal Rights than other Military Members as Their Military Lawyers Are Restricted in the Pre-Article 15 Advice They May Provide. 1 J. Mil. & Vet. L. 1 (2007).

More is wrong with the piece than its title. Nevertheless, as I will discuss below, every Marine Corps and Navy defense counsel and every civilian counsel litigating a Marine Corps or Navy court-martial should read the first two-and-a-quarter pages of the piece.

The article is short -- just 8 single-spaced pages -- and unscholarly. Normally both of those traits might be assets, but the article breaks with scholarly conventions so abruptly as to become a liability. The writing is overly alarmist, highly anecdotal, and casual -- at one point even using an exclamation point (an exclamation point!): "What made the matter even worse from the military's point of view was that Fairchild had admitted to his illegal drug use from the start!" Id. at 6. To quote the guru: "An exclamation mark is rarely justified in legal writing except in a direct quotation." Bryan A. Garner, The Redbook 1.72 (2d ed. 2006). The article's exclamation point was not the exception that proves Garner's rule.

The article concerns Booker's requirement that for a record of nonjudicial punishment to be admissible at a later court-martial, the servicemember must have received an opportunity to consult with counsel about whether to accept NJP. United States v. Booker, 5 M.J. 238 (C.M.A. 1977), modified by United States v. Mack, 9 M.J. 300 (C.M.A. 1980). On the authority of a little-cited 1987 Federal Circuit opinion, the author claims that the Department of the Navy's current pre-NJP counseling practice leaves the service vulnerable to "being sued in the federal courts for potentially hundreds of millions of dollars." Id. at 2. When I read this, I had two thoughts. The first, of course, was of Dr. Evil raising his pinkie to his lips and demanding "hundreds of millions of dollars." The second was roughly the same as General McAuliffe's reply to the Germans at Bastogne.

Here is the essence of the article's argument: "The court in Booker held that for Article 15 results to be admissible in a subsequent court-martial in aggravation, the accused must have been afforded an opportunity to consult with a military attorney as part of his or her decision to accept the Article 15 process or refuse it and request a trial by court-martial." 1 J. Mil. & Vet. L. at 2. "Currently Navy and Marine military lawyers are specifically forbidden from forming an attorney-client relationship" when providing pre-NJP advice. Id. at 2-3. "Specifically, they are forbidden from addressing the facts of the case or recommending whether the accused should accept Article 15 punishment or demand trial by court-martial. All they are allowed to do is explain to the accused what is already on the Article 15 (mast or office hours) rights form." Id. at 3.

That is the golden nugget in this article. In any Navy or Marine Corps court-martial sentencing case where the government seeks to introduce an NJP in aggravation, unless the accused was embarked on or attached to a vessel at the time of the NJP or (as is quite frequent) waived his or her right to consult with counsel, this provides a potential means to challenge the NJP's admissibility. The argument would be that admitting the record of NJP would be inconsistent with Booker and Mack because the naval service's pre-NJP advice does not rise to the level of "consultation."

But having delivered that golden nugget, the rest of the article offers only pyrite. It includes such clunkers as: "Many legal experts consider a decision from the Federal Circuit to be almost as good as one from the Supreme Court." Id. at 5. That sentence seems at once overly aggrandizing and overly dismissive. Most of the legal experts whose work I read refer to the D.C. Circuit, not the Federal Circuit, as the second most powerful, important, influential, and prestigious court in the land. On the other hand, I am struck with the mental image of a flashing neon sign on the Tayloe House reading, "The Federal Circuit: Almost as good as the Supreme Court!"

The article delivers this odd description of the Federal Circuit in an apparent attempt to lend gravitas to the crucial opinion of Fairchild v. Lehman, 814 F.2d 1555 (Fed. Cir. 1987) -- the decision that in the article author's imagination makes the United States government vulnerable to lawsuits worth a sum worthy of a Dr. Evil blackmail demand. Fairchild was published 20 years and 7 months ago. Shepard's tells us that in that time, it has been cited in 16 judicial opinions. An opinion that ventures out into the light of day less often than Punxsutawney Phil would seem an unlikely vehicle for a nine-figure judgment. And an unlikely vehicle it is.

In Fairchild, the record indicated that a Marine Corps lawyer provided pre-NJP advice to then-Sergeant John A. Fairchild and incorrectly advised him about the potential to be discharged based on the NJP. The Federal Circuit (Almost as good as the Supreme Court!) tells us: "Fairchild was misinformed when he was told that if he elected nonjudicial punishment he 'could not receive an adverse discharge.' Although Fairchild received the advice of military counsel, the advice he received was erroneous." Fairchild v. Lehman, 814 F.2d 1555, 1559-60 (Fed. Cir. 1987). The Federal Circuit then concluded: "On the basis of this advice, Fairchild waived his statutory right to trial by court-martial. We do not think that an accused can execute an intelligent waiver of his statutory right to trial when he has been misinformed of the consequences of electing nonjudicial punishment by counsel provided by the military." Id. at 1560. So the Federal Circuit upheld the District Court's ruling setting aside the NJP which, because Fairchild's admin discharge was based on the NJP, warranted setting aside the discharge as well. Id.

Here is the article's description of Fairchild:

Fairchild v. Lehman dealt with the insufficiency of pre-Article 15 attorney counseling involving urinalysis testing showing marijuana use. The resulting Article 15 was the basis later for an administrative discharge in 1983. . . . Fairchild filed a lawsuit in the Federal District Court for Eastern Virginia challenging the validity of his discharge that same year. In 1985 the District Court ruled in Fairchild's favor. The Navy appealed but the Court of Appeals for the Federal Circuit, in a unanimous 3-0 vote, upheld the lower court's decision. . . .

The Fairchild court expanded Booker and Mack to apply it [sic] to administrative discharges with an Other-Than-Honorable (OTH) characterization of military service.

1 J. Mil. & Vet. L. at 6 (footnotes omitted).

Wrong. The footnotes both preceding and following the reference to the "Fairchild court" in the paragraph above are to the opinion of the Federal Circuit (Almost as good as the Supreme Court!). And that is the relevant Fairchild opinion, of course, since in the event of any inconsistency it trumps the opinion from Judge Williams of the Eastern District of Virginia. And here is what the Federal Circuit actually said:

Because we affirm the district court's judgment with respect to nonjudicial punishment, and because Fairchild's Administrative Discharge Board proceeding was predicated upon the nonjudicial punishment he received, we find it unnecessary to discuss the district court's rationale for vacating the BCNR's decision on the Administrative Discharge Board proceeding.

Fairchild, 814 F.2d at 1560. So Fairchild most certainly does not apply Booker and Mack to administrative discharges.

But that is small potatoes compared to this howler: "All shore based Article 15s where the accused was never given the right to see a lawyer are also challengeable, as Fairchild creates an absolute right to an opportunity to consult with a lawyer as part of the Article 15 process. If not allowing a service member to fully consult with an attorney is improper, not allowing him or her to see one at all is far worse." 1 J. Mil. & Vet. L. at 7. This passage simply ignores what Fairchild actually said--indeed, what Fairchild was actually about. Fairchild didn't create a right to consult with a counsel. In Fairchild, the Marine had consulted with a counsel. Fairchild was actually about acting on the basis of erroneous advice from a military officer provided to the servicemember by the military.

And simply because the law recognizes a remedy for misadvice doesn't mean the law would provide any remedy for non-advice. Consider, for example, the collateral consequences doctrine. As a general matter, the law will not recognize an ineffective assistance of counsel claim based on an argument that the counsel failed to advise a criminal accused of collateral consequences that may flow from a conviction. BUT some courts recognize a misadvice exception to the collateral consequences doctrine. The Second Circuit, for example, has observed: "We have held that an attorney's failure to inform a client of the deportation consequences of a guilty plea, without more, does not fall below an objective standard of reasonableness. At the same time, we have implied that an attorney's affirmative misrepresentations on the subject might well constitute ineffective assistance." United States v. Couto, 311 F.3d 179, 187 (2d Cir. 2002) (citations omitted). So the article is wrong to extrapolate a right to be affirmatively advised of the consequences of an NJP from a right not to be misadvised about the consequences of an NJP.

In addition to this major problem with the article's thesis, it suffers from other smaller legal problems. For example, the article states that "monetary damages could be given for any restriction or extra duty punishments that were levied as well." 1 J. Mil. & Vet. L. at 8. The article fails to discuss how such damages could be awarded in light of the Feres doctrine. And the article contrasts NJPs with courts-martial by observing that a conviction is harder to obtain at the latter "as the standard to convict is 'beyond a reasonable doubt' and the formal rules of evidence apply." Id. at 1. The author appears to be unaware that an Army Regulation expressly applies the "beyond a reasonable doubt" standard to NJPs as well. U.S. Dep't of Army, Reg. 27-10, Legal Services: Military Justice para. 3-16(d)(4) (16 Nov. 2005).

Much like the Lost Colony of Roanoke, the original JMVL has disappeared. For the most part, the marketplace of ideas wouldn't suffer if Volume 1 of the revived JMVL suffered the same fate. But the Roanoke colonists at least left behind the word "Croatoan" carved into a tree. Perhaps before the revived JMVL's introductory essay disappears, someone can carve the following message into a tree outside the NLSO building at Naval Station Norfolk, which is a mere 90 miles north of Roanoke Island: "Challenge admissibility of naval NJPs based on limitations on Booker counseling."

Blogging from the CAAF Conference: Art. 2(a)(10), UCMJ

No celebrity sightings at the CAAF Conference. However, there was an Art. 2(a)(10), UCMJ “citing” between 4 and 5 p.m. The last presenter of the day (the only one I saw) was DoD Assoc. Dep. General Counsel (MilJus and Personnel Policy) Robert E. Reed. Mr. Reed gave us the interesting, and somewhat longer, path that Congress took to get to the current revision to Art. 2(a)(10), UCMJ--adding civilians accompanying armed forces in the field during contingency operations to the list of persons subject to the UCMJ. The presentation included a synopsis of the offenses that Mr. Reed, and presumably DoD, view as not applicable to civilians now covered by the UCMJ, including fraternization and Gambling with subordinates in Art. 134—re-start those Preakness wagers in Iraq!

Most interesting were the list of policy issues put out by Mr. Reed that DoD is considering. DoD is considering three methods to “manage” UCMJ civilian jurisdiction: (1) reach an agreement with DOJ on DOJ’s right of first refusal in concurrent Military Extraterritorial Jurisdiction Act (MEJA)/Art. 2 jurisdiction cases; (2) amend the Manual to withhold commander authority to act against civilians; and (3) amend the manual or implement other guidance requiring transmission of civilian UCMJ cases to higher authority (presumably one with a uniformed lawyer and able to reach out to DOJ and others). Mr. Reed also commented on the unlikelihood that NJP can be applied to civilians under the UCMJ. While he did not dismiss the idea, he seemed doubtful of it being either realistically or legally implemented--I wasn't sure which.

Finally, an issue that Mr. Reed left unaddressed from his handouts at the presentation was the question of whether the term “in the field” applies to civilians stationed INCONUS supporting U.S. forces in contingency operations, as thousands are today. Mr. Reed seemed to think that the answer was yes, but he did not take a position on it. His definition of “in the field” was based exclusively on the relationship between the armed force to which the person was attached and the enemy. Presumably Mr. Reed was addressing those contractors that are stationed stateside and supporting troops in Iraq, or elsewhere, in areas such as IT or logistics.

Notably, Reed also mentioned that DoS/DOJ were considering the case of a Christmas eve killing in Baghdad’s Green Zone, reported by the Virginian Pilot here, and whether the contractor (a DoS contractor, not DoD) involved would be subject to prosecution under MEJA or other law. In a Feb. 8. hearing at the House Committee on Government Oversight, here, though overshadowed by the issue of the death of the 4 contractors in Fallujah, Congress asked the contractor's General Counsel about the prosecution, reported here. However, no information of substance was available. Mr. Reed revealed that the contractor had returned to the United States. I would think there would be constitutional hurdles to a US based prosecution of a civilian contractor under the UCMJ. What rationale would there be for depriving the civilian of his Sixth and Fifth Amendment rights when he was no longer on the battlefield/"in the field" and the case would have no direct effect on good order and discipline, particularly in light of the expanded MEJA jurisdiction that Mr. Reed highlighted that would presumably cover this contractor? For that matter, how could the US government constitutionally strip a person sitting within the jurisdiction of a US District Court of their rights under the Fifth and Sixth Amendments merely because their job supports/ed (past or present tense) someone "in the field?" We'll keep following the case.

Supremes reemphasize that appointed defense counsel aren't state actors

As discussed below, today's SCOTUS Brillon opinion isn't a helpful case for the defense for speedy trial or appellate delay purposes. But it may prove beneficial to the defense in many other ways. The case reemphasizes that a public defender isn't a state actor for non-employment/management purposes.

Consider this language from the majority opinion:

"[O]nce a lawyer has undertaken the representation of an accused, the duties and obligations are the same whether the lawyer is privately retained, appointed, or serving in a legal aid or defender program." Polk County v. Dodson, 454 U. S. 312, 318 (1981) (internal quotation marks omitted). "Except for the source of payment," the relationship between a defendant and the public defender representing him is "identical to that existing between any other lawyer and client." Ibid. Unlike a prosecutor or the court, assigned counsel ordinarily is not considered a state actor.

This language suggests that the military can't put limitations on a military defense counsel's representation that it couldn't impose on a civilian providing representation. So, for example, a military defense counsel who provides information to the media isn't releasing information on behalf of the service any more than a civilian defense counsel who releases information is. What other restrictions limit military defense counsel that may be challenged using this language?

This week in military justice -- 14 December 2008 edition

After a slow week, the coming week in military justice promises to be quite eventful.

This week at the Supreme Court: We are unaware of any anticipated military justice developments at the Supreme Court this week. But we do invite a report from the Kabul Klipper concerning the present whereabouts of the Golden CAAF.

This week at CAAF: CAAF is scheduled to hear two arguments on Tuesday and two more on Wednesday. Tuesday leads off with United States v. Clayton, No. 08-0417/AR. The principal issue in Clayton is "WHETHER THE CIVILIAN POLICE DRUG SEIZURE REPORT IN THIS CASE IS A REPORT SETTING FORTH 'MATTERS OBSERVED BY POLICE OFFICERS . . . ACTING IN A LAW ENFORCEMENT CAPACITY,' AND, IF SO, WHETHER IT WAS PROPERLY ADMITTED UNDER M.R.E. 803(6) (BUSINESS RECORD EXCEPTION), WHEN IT WOULD NOT BE ADMISSIBLE UNDER M.R.E. 803(8) (PUBLIC RECORDS EXCEPTION)." I can't find ACCA's opinion in the case anywhere online.

Clayton will be followed by a second Army case, United States v. Dean, No. 08-0431/AR. The issue in Dean is "WHETHER THE MILITARY JUDGE ERRED BY PERMITTING THE CONVENING AUTHORITY TO WITHDRAW FROM HIS PRETRIAL AGREEMENT WITH APPELLANT DESPITE APPELLANT BEGINNING PERFORMANCE OF PROMISES CONTAINED IN THE AGREEMENT." ACCA's Dean opinion also appears to be UA.

Wednesday's arguments will begin with a Navy case, United States v. Collier, No. 08-0495/NA. The issue there is "WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY EXCLUDING, PURSUANT TO M.R.E. 403, RELEVANT EVIDENCE OF A PRIOR HOMOSEXUAL RELATIONSHIP BETWEEN APPELLANT AND A CENTRAL GOVERNMENT WITNESS OFFERED BY THE DEFENSE TO SHOW BIAS AND MOTIVE TO MISREPRESENT ON THE PART OF THE GOVERNMENT WITNESS." NMCCA's unpublished opinion in the case is available here. United States v. Collier, No. NMCCA 200601218 (N-M. Ct. Crim. App. Feb. 21, 2008).

CAAF's last argument for calendar year 2008 will be in United States v. Campos, No. 08-0409/NA. The issue there is "WHETHER IT WAS PLAIN ERROR FOR THE MILITARY JUDGE TO ADMIT AT SENTENCING A STIPULATION OF EXPERT TESTIMONY PERTAINING TO SEX OFFENDER TREATMENT IN MILITARY CORRECTIONAL FACILITIES WHERE THE EXPERT, WHO DID NOT PERSONALLY EVALUATE APPELLANT, OPINED GENERALLY ABOUT MINIMAL AND OPTIMAL TERMS OF CONFINEMENT FOR A PERSON DETECTED OF POSSESSING CHILD PORNOGRAPHY." NMCCA's unpublished opinion in the case is available here. United States v. Campos, No. NMCCA 200602523 (N-M. Ct. Crim. App. Jan. 17, 2008).

This week at the CCAs: ACCA will hear two oral arguments this week. On Wednesday, ACCA will hear oral argument in United States v. Huntzinger, No. ARMY 20060976. The issues in that case are "WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE DENIED THE DEFENSE MOTION FOR ASSISTANCE FROM AN INDEPENDENT EXPERT COMPUTER FORENSIC ANALYST," and "WHETHER THE MILITARY JUDGE ERRED WHEN HE DENIED THE DEFENSE MOTION TO SUPPRESS EVIDENCE OBTAINED IN VIOLATION OF APPELLANT’S FOURTH AMENDMENT RIGHTS AND MILITARY RULES OF EVIDENCE 315 AND 316."

On Thursday, ACCA will hear oral argument in United States v. Hotrum, No. ARMY 20060649. The three issues in Hostrum are: (1) "WHETHER THE MILITARY JUDGE ERRED IN ADMITTING APPELLANT’S ALLEGED STATEMENTS WHEN THE STATEMENTS WERE NOT CORROBORATED AS REQUIRED BY MIL. R. EVID. 304(g)"; (2) "WHETHER THE EVIDENCE PRODUCED AT TRIAL IS BOTH FACTUALLY AND LEGALLY SUFFICIENT TO SUPPORT APPELLANT'S CONVICTION FOR CHARGE II"; and (3) "WHETHER THE MILITARY JUDGE ERRED IN ADMITTING APPELLANT'S MARCH 25TH STATEMENT WHERE THE STATEMENT WAS INVOLUNTARY UNDER MIL. R. EVID. 304(c)(3) AND OBTAINED IN VIOLATION OF APPELLANT'S 5TH AMENDMENT, U.S. CONST., AND ARTICLE 31, UCMJ, RIGHTS."

This week at the trial level: We aren't aware of any significant events expected at the trial level this week.

As always, if you are aware of any other military justice developments or upcoming events, please drop us a line at caaflog@caaflog.com.

And, finally, a new (no doubt one-time) feature:

This week in mongrel doggerel: With apologies to Clement Clarke Moore and anyone who has actually read this far into this post, here's my very bad seasonal CAAF poem:

'Tis the week before Christmas
When at CAAF's courthouse,
Defense counsel they'll rise
And loudly they'll grouse
About findings and punishments unfair
Seeking to win a reversal, so rare.

Counsel will rise to speak with dread,
Wondering what questions will pop into judges' heads.
Is it a softball or is it a trap?
Should you answer directly or start to dance tap?

But answering a question with tap dancing chatter
May provoke the judges to tear you to tatters.
And counsel must be careful to make no concession too rash
Or risk giving opposing counsel a chance to talk trash.

Instead counsel's syllogistic reas'ning must flow,
But above all, it's the record that counsel must know.
Lest counsel's ears hear the sound they most fear,
The sound of a judge exclaiming a jeer.

Counsel must not rely on tiresome shtick,
Or arguments that brand them a law heretic.
Or you will have no one but yourself to blame,
As you try to parry each of the judges by name.

When answering hypos from Effron, the Chief,
Saying, "But that's not this case" will only bring grief.
Answers to Judge Baker must be sufficiently granular
To avoid having an off day, like Ferris Bueller.
If your argument runs counter to words' plain meaning,
In your opponent's direction, Judge Erdmann 'll be leaning.
If your answers fail to impress Judge Stucky,
He'll leave no doubt he finds your argument kooky.
And to avoid an appellate affliction,
You must convince Judge Ryan of the Court's jurisdiction.

When you've said all there's to say, just have a seat,
Giving the judges your opposing counsel to beat.
And please don't just repeat what was in your epistle
For that is sure to make an appellate judge bristle.

It all comes to an end with the glowing red light.
Happy holidays to all, and to all a good night.

Still another published CGCCA opinion

The CGCCA web site is still down, but the court itself continues to pump out published opinions. The latest is United States v. Greene, __ M.J. ___, No. 1226 (2007 CCA LEXIS 42 (C.G. Ct. Crim. App. 28 Feb. 2007).

Greene involves three issues. The first was a challenge to the accuracy of the transcript. The Coast Guard Court rejected this challenge, concluding: "Appellant has not identified any specific omission in the authenticated record, but would have us infer additional unspecified and unknown omissions based upon the fact that the military judge found omissions to correct. This we decline to do."

An appellate defense counsel who believes that the record of trial might be inaccurate should request a copy of the tapes of the proceedings from the court reporter. Alternatively, the appellate defense counsel can ask the trial defense counsel to review parts of the tapes. Often the trial defense counsel will have a sufficiently good relationship with the court reporter to get access to the tapes. If the issue can't be resolved by such informal means, the appellate defense counsel should file a motion with the CCA seeking an order requiring the government to produce the tapes, pointing out the reasons to doubt the transcript's accuracy. In three cases I litigated as an appellate defense counsel, we succeeded in obtaining the tapes of the trial. Counsel can then compare the transcript to the tapes to determine whether it is verbatim.

The second issue in Greene involved post-trial delay. The CA acted 173 days after trial and the Coast Guard Court received the record 201 days after trial. The Coast Guard Court found "a clear lack of institutional diligence resulting in unreasonable post-trial delay in this case." In the exercise of its Article 66 powers, the Coast Guard Court reduced Greene's demotion from E-1 to E-2. My best guess is that this returned some greenbacks to Greene. LCDR Truax, does setting aside a bust for a Coastguardsman who is given a BCD result in any meaningful relief?

Finally, the Coast Guard Court declined to provide relief because Greene never pled to one of the specifications of which he was found guilty based on his non-existent plea. The court reasoned:

Rule for Courts-Martial 910(b), Manual for Courts-Martial, United States (2005 ed.), provides that if an accused fails to plead, the military judge shall enter a plea of not guilty. Assuming a not-guilty plea to the specification at issue, the providence inquiry, during which Appellant was sworn . . . and testified under oath, provided ample evidence in the form of Appellant's testimony to prove the specification.

Greene, 2007 CCA LEXIS 42, at *11-*12 (footnote omitted). The Coast Guard Court also cited a Navy-Marine Corps Court decision that had come out the same way. United States v. Williams, 47 M.J. 593 (N-M. Ct. Crim. App. 1997).

The Coast Guard Court added, "We cannot discern any possible prejudice based on the entry of a finding of guilt of the specification after the absence of a plea to it." How's this for prejudice: if he never pled guilty to it, he was prejudiced by being found guilty on the basis of his purported plea? The Coast Guard Court might have reached the right conclusion, but I think the issue is certainly more difficult that the court lets on. Perhaps CAAF will choose to wrestle with it on a deeper level.

CAAF issues decision distinguishing violation of a superior commissioned officer's order from violation of a lawful order

I'm under the gun tonight, so I'm not going to have a chance to comment on it. But here's a link to CAAF's opinion in United States v. Ranney, __ M.J. ___, No. 08-0596/AF (C.A.A.F. Apr. 14, 2009). CAAF splits 3-2 in ruling that the accused's act of driving after his license was revoked was a violation of a lawful order under Article 92 rather than violation of the traffic review officer's order in violation of Article 90. Judge Ryan wrote for the majority with Judges Stucky and Baker dissenting. The court ruled unanimously in rejecting a challenge to a conviction for violating a Marine gunny's order to Technical Sergeant Ranney--an Air Force E-6--not to engage in an unprofessional relationship with a female Marine E-3.