Monday, December 31, 2007

All quiet on the E Street front

Ah 2006; that was an interesting year for military justice.

Two new CAAF judges were nominated and confirmed. The tenures of Chief Judge Gierke, with his impressive body of procedure-oriented jurisprudence, and Judge Crawford -- who had become an increasingly isolated but vehement voice in dissent -- ended. Chief Judge Effron moved to the middle seat and picked up the gavel. The Supreme Court issued a landmark opinion that provided a fresh interpretation of Article 36 of the UCMJ. Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2006). Congress changed the UCMJ to subject some civilian contractors to court-martial jurisdiction. And CAAF delivered a WWF-worthy smackdown in United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006).

But just as surely as a wild night with one too many mojitos is followed by a quiet morning gently massaging one's temples, 2006 was followed by 2007. And in 2007, nothing happened. Or, to paraphrase Gilbert and Sullivan, well, hardly anything.

2007 is remarkable more for what didn't occur than what did. The SG didn't seek cert in Lane. Congress allowed the Equal Justice for Our Military Act to lapse into a coma and then unobtrusively die. NMCCA didn't release an opinion in Walker. Despite any predictions that Guert or I may have made to the contrary, United States v. Leonard, 64 M.J. 381 (C.A.A.F. 2007), resulted in neither the repeal of the UCMJ nor the melting of the polar ice caps. The Supremes denied cert in United States ex rel. New v. Gates, 127 S. Ct. 2096 (2007). And the Judge Advocates General didn't get their third star.

So what were the big military justice stories of 2007? Heck if I know. That's where you come in. Please post your nomination for military justice story of the year. If you are the first to post the winning entry, as selected by our anonymous panel of military justice geeks applying idiosyncratic criteria and answering to no one, you could become the proud owner of a CAAFlog t-shirt. Please post your entries NLT 1930 EST on New Year's Day, 1 January 2008.

Saturday, December 29, 2007

It's almost 2008; do you know where your Manual for Courts-Martial is?

It's almost 2008, making the chances of a 2007 MCM seem rather slim. I ranted in February about the lack of an up-to-date Manual. I reranted in October. Does anyone have a prognosis for the publication of a replacement for the woefully dated 2005 MCM?

Friday, December 28, 2007

No third star yet

Casey Kasem's famous sign off line was, ""Keep your feet on the ground, and keep reaching for the stars." That third star is still out of reach for the Judge Advocates General. The President indicated today that he is vetoing the DOD Authorization bill, which includes the provision giving the Judge Advocates General a third star. The President's disapproval of the bill is the result of a provision potentially making the Iraqi government financially liable for torts committed by Saddam Hussein's government. In January, Congress will have a chance to either override the veto or pass the legislation in an altered form, as discussed in this WaPo piece.

Thursday, December 27, 2007

New certified case [expanded]

Yesterday CAAF docketed two certified issues in an Air Force case:



United States v. Mackie, __ M.J. ___, No. 08-5005/AF (C.A.A.F. Dec. 26, 2007). The Air Force Court's opinion in the case is published at 65 M.J. 762 (A.F. Ct. Crim. App. 2007). We previously discussed that opinion here.

This is the fifth case that the Judge Advocate General of the Air Force has certified to CAAF since July. In the preceding eight years, the Judge Advocate General of the Air Force had certified a total of three cases to CAAF. So far in 2007, there have been six cases certified to CAAF -- five (Webb, Miller, Melson, Perez, Mackie) by the Judge Advocate General of the Air Force and one (Gutierrez) by the Judge Advocate General of the Army.

In each year from 2003 through 2006, the Judge Advocate General of the Army won the certification derby. In 2002 the champ was, of all people, the Judge Advocate General of the Coast Guard, who was responsible for the only two certified issues during that calendar year. The Judge Advocate General of the Navy was the champ in 1999 and 2000 and tied with the Judge Advocate General of the Air Force in 2001. Laying out the service breakdown on a graph suggests hot and cold streaks in each service. It makes me wonder whether the hot streaks were caused by some particular individual pushing for certifications with a cold streak following when that individual PCSed or retired. If so, my guess is that the directors of the respective appellate government divisions are the key players in the certification process. It would be interesting to overlay a graph of the appellate government heads' tenure on the graph of the corresponding service's certification numbers.

Is it time time gets a nip and tuck at CAAF?

The Eye has it on good authority that CAAF is considering a little nip and tuck on filing times in 2008. One anticipated move is a reduction in first enlargements of time from 30 to 15 days unless, of course, there are extraordinary circumstances warranting extra time.

Parkinson's Law states that work expands to fill the time allotted for its completion. Will less time necessarily result in less work?

Wednesday, December 26, 2007

Weston en banced

We previously discussed NMCCA's published opinion in United States v. Weston, 65 M.J. 774 (N-M. Ct. Crim. App. 2007), here. Weston is a competing consent doctrine search and seizure case that ended well for the appellant. The scuttlebutt is that NMCCA will hear the case en banc in a "Project Outreach" argument at one of the law schools in D.C. with "George" in its name. Does anyone know which one?

No certificate in Wild

CAAF's daily journal from Friday isn't online yet, but we have learned the answer to the question on everyone's mind this holiday season: will the Judge Advocate General of the Navy certify Wild or won't he? We previously discussed that issue here. The verdict is now in: no certification.

Monday, December 24, 2007

Link to Ortizrodriguez

Here's a link to the Ortizrodriguez opinion that the Kabul Klipper writes about below.

NMCCA Affirms Article 10 Dismissal

In an unpublished opinion authored by Judge White, NMCCA affirmed a military judge's dismissal with prejudice of an indecent assault case on grounds that the government violated he accused's right to a speedy trial under Article 10.

The accused, Aviation Boatswain's Mate (Launching and Recovery Equipment) Second Class Daniel Ortizrodriguez (let's just call him the appellee) was initially accused of rape and civilian authorities conducted an investigation. The civilians elected not to pursue the case, and the Navy requested that appellee be detailed a defense counsel. Eventually, appellee was restricted to the limits of the USS JOHN F. KENNEDY, which was in the process of decommissioning. Appellee remained restricted through the decommissioning process, and after KENNEDY decommissioned, appellee was restricted to a barge. The military judge ruled that the conditions of appellee's restriction were tantamount to confinement. On appeal, the government did not contest this finding. Appellee spent a total of 101 days in restriction tantamount to confinement without being arraigned.

The delay NMCCA found troubling enough to warrant dismissal with prejudice included 27 days that elapsed between imposition of restriction and preferral, and 44 days for the investigating officer to complete the Article 32 investigation. Much of the delay associated with the Article 32 was attributable to the investigating officer keeping the investigation open in hopes of obtaining evidence the trial counsel had informed him was likely lost.

We'll see if the government lets this case lie harmlessly in unpublished oblivion or risks a published CAAF opinion. There's nothing especially groundbreaking here legally speaking, a straight forward, fact intensive application of the Barker v. Wingo factors.

Since the case hasn't hit the NMCCA web page yet, I'll zap a copy to No Man for posting on

Sunday, December 23, 2007

Happy Festivus! from your Blackberry addict contributor

For my first all Blackberry post I thought I'd wish everyone a Happy Holiday. For my next feat of strength I will bench press my 50 lb. 4 year old after two glasses of egg nog . . . for those that don't know me I couldn't bench press my 28 lb 15 month old these days and I don't drink egg nog. In any event, you can find the No Man clan around the aluminum pole this season singing Go Diego Go. Happy Festivus.

Saturday, December 22, 2007

Is a "cover-up" lie told after the murder a statement in furtherance of a conspiracy to murder or part of a separate conspiracy to obstruct justice?

In United States v. Diamond, __ M.J. ___, No. ARMY 20010761 (A. Ct. Crim. App. Dec. 21, 2007), the second major issue is whether post-murder statements made by a co-conspirator to misinform law enforcement agents constituted uncharged misconduct about a separate conspiracy to obstruct justice rather than statements in furtherance of the conspiracy to commit premeditated murder. ACCA rules that this is a fact-based issue. In this case, the court held that the statements were in furtherance of the premeditated murder and its objective. Id., slip op. at 27-28. ACCA relied, in part, on a 195 CMA case indicating:
[N]ot infrequently the commission of a criminal offense is followed immediately by an active attempt to conceal it. Thus, a rule has arisen to the effect that the declarations of a co[-]conspirator are admissible against a co[-]conspirator not only when they are made during the perpetration of the offense, but also when expressed during the course of a subsequent attempt to conceal the crime and relating to it.

Id., slip op. at 26 (quoting United States v. Taylor, 6 C.M.A. 289, 293, 20 C.M.R. 5, 9 (!955) (second and third alterations in the original)).

Friday, December 21, 2007

Crawford and co-conspirators' statements

The first major issue in Diamond is whether Crawford v. Washington, 541 U.S. 36 (2004), establishes a Sixth Amendment bar to the introduction of a co-conspirator's statement in furtherance of the conspiracy. No, holds ACCA. United States v. Diamond, __ M.J. ___, No. ARMY 20010761, slip op. at 14-18 (A. Ct. Crim. App. Dec. 21, 2007). ACCA holds that this issue continues to be governed by United States v. Inadi, 475 U.S. 387 (1986). ACCA also cites three circuits' rulings that "co-conspirator statements admitted pursuant to Federal Rule fo Evidence 801(d)(2)(E) . . . are 'generally [nontestimonial] and, therefore, do not violate the Confrontation Clause as interpreted by the Supreme Court." Id., slip op. at 17 (quoting United States v. Singh, 494 F.3d 653, 658 (8th Cir. 2007) (alternation in the original)). ACCA also quotes the Seventh Circuit's conclusion that "Crawford did not change the rules as to the admissibility of co-conspirator statements." Id., slip op. at 17 (quoting United States v. Jenkins, 419 F.3d 614, 618 (7th Cir. 2005)).

ACCA affirms in United States v. Diamond

ACCA today released a published opinion affirming the convictions and LWOP sentence in the widely publicized case of Staff Sergeant John M. Diamond. United States v. Diamond, __ M.J. ___, No. ARMY 20010761 (A. Ct. Crim. App. Dec. 21, 2007). Unless one of my colleagues beats me to it, I'll try to post an analysis tomorrow.

Wednesday, December 19, 2007

WWBJD III: The certified issue

Since 30 November, three certificates of review have been filed at CAAF -- with the time for the filing of another certificate extended through this Friday. This bumper crop of certificates led me to take a look at the data. As usual, my research period extends back to 1999 -- the first complete calendar year for which CAAF's daily journal is available on its web site.

Question # 1: How many certificates of review have been filed in the 9 years minus 13 days in the study period? 42.

Question # 2: What is the service breakdown? Army = 13; Air Force = 7; Navy-Marine Corps = 16; Coast Guard = 6.

Question # 3: How often does a certified issue lead to reversal of the CCA's opinion? 54% 20/37 (5 certified issues remain pending) (This 54% figure is somewhat skewed because certified issues led to 5 carbon copy reversals of NMCCA opinions during the Campbell/Green changeover in urinalysis law and similar certified issues led to 2 combined reversals of ACCA in Alexander and Vandershaaf, 63 M.J. 269 (C.A.A.F. 2006).)

Question # 4: In how many of the 42 certified issue cases had the government prevailed at the CCA level? 2, both certified by the Judge Advocate General of the Navy. United States v. Rodriguez, 60 M.J. 87 (C.A.A.F. 2004); United States v. Byrd, 53 M.J. 35 (C.A.A.F. 2000).

Question # 5: How many cases were certified more than once within the study period? 1: United States v. Gutierrez, which has been certified by the Judge Advocate General of the Army twice -- once for each of ACCA's opinions ruling for Gutierrez.

Charlie Savage's follow-up to his Globe article

Here is a link to Charlie Savage's article from today's Boston Globe, which reports that "[t]he Bush administration is dropping a plan to take control over the promotions of military lawyers, following an outpouring of alarm over the independence of uniformed attorneys who have repeatedly objected to the White House's policies toward prisoners in the war on terrorism."

Interesting CAAF orders

Today's daily journal update included two orders in Navy-Marine Corps cases directing the Appellate Government Division to file replies to portions of the appellants' supplements. United States v. Rowe, __ M.J. ___, No. 07-0813/NA (C.A.A.F. Dec. 17, 2007); United States v. Miller, __ M.J. ___, No. 07-0817/NA (C.A.A.F. Dec. 17, 2007).

However, each order simply directed the Goverment to "file an answer to assigned issues I and II," without suggesting what those issues might be.

Could one of our Navy or Marine Corps readers -- living or dead -- fill us in about the particular issues that have apparently caught at least one CAAF judge's attention?

Test Driving Wayne Johnson's Booker Argument

This blog has previously noted Commander (Ret.) Wayne L. Johnson, JAGC, USN's article in the Journal of Military and Veteran Law in which he argues that the manner in which the Navy counsels Sailors and Marines falls short of the requirements of United States v. Booker, 5 M.J. 238 (C.M.A. 1977).

I had occasion to do a presentencing hearing last week, and since my client had two NJPs in the previous two years, I was in a position to object to their admission during sentencing on the grounds outlined by CDR Johnson. Since my client will be enjoying the full panoply of rights afforded him by Article 66, we can look forward to seeing how this theory plays in the appellate arena.

Tuesday, December 18, 2007

CAAF's briefless grant

On Friday, CAAF granted review of this issue, but ordered no briefs:


United States v. Allen, __ M.J. ___, No. 07-0615/NA (C.A.A.F. Dec. 14, 2007). CAAF is probably treating the case as a trailer to United States v. Wilson, No. 06-0870/AR, which was reargued on 17 October.

A new pro se IFP military cert petition

The Supreme Court docketed a new pro se IFP military cert petition yesterday. United States v. Hernandez, No. 07-8247. CAAF affirmed the case in a summary disposition. United States v. Hernandez, 65 M.J. 314 (C.A.A.F. 2007). I can't find ACCA's opinion in the case online.

Two new grants, one with briefs and one without

On Friday, CAAF granted review in two cases, ordering briefs in one but not the other. Here are the three issues in the case in which CAAF ordered briefs to be filed:




United States v. Ober, __ M.J. ___ No. 07-0722/AR (C.A.A.F. Dec. 14, 2007).

Here's a link to ACCA's unpublished opinion in the case. United States v. Ober, No. ARMY 20040081 (A. Ct. Crim. App. May 25, 2007). ACCA tells us that the government conceded that "the evidence is factually and legally insufficient to support the finding of guilty as to transporting child pornography in interstate commerce (Charge I, Specification 1)." Id., slip op. at 1. But ACCA "decline[d] to accept that concession and [found] the evidence legally and factually sufficient." Id. That should make GAD's brief to CAAF interesting reading. Will GAD argue that it was right the first time?

Judge advocate promotions and oversight by political appointees cont'

Mr. or Ms. Anonymous posted an Army Times online article as a comment to Saturday's entry about an important Boston Globe article.

Here's a link to the Army Times piece.

The article by Rick Maze, headlined Pentagon backs off politicizing JAG promotions, begins: "An attempt within the Pentagon to politicize promotions for military judge advocates general appears to have been blocked after protests from military lawyers and threats from key lawmakers."

Monday, December 17, 2007

3 stars for three wise men cont'

Greetings from Williamsburg, where what to my wondering eyes should appear but a local wi-fi network on my laptop. (I do have doubts, though, about the historic accuracy of Ye Olde Colonial Wi-Fi Network.)

Both Houses of Congress have now passed the DOD authorization bill's conference committee report, meaning it's now ready for the President's signature. The House passed it on the 12th and the Senate on the 14th. Here's a link to the Thomas overview of the legislation's status.

Sunday, December 16, 2007

All in the Family

It's been said that in sports, a tie is like kissing your sister. When I was an appellate counsel, I felt the same way about harmless error; the court agrees with your argument, it just doesn't count for anything. Which brings us to the strange case of United States v. Othuru, a harmless error case in which the appellant might very well have actually kissed his sister.

Stanley Othuru, a Nigerian, entered into a fraudulent marriage with Michelle Othuru, Stanley's biological sister, and collected BAH at the married rate. Michelle and her mother made sworn statements during the course of the investigation admitting to the fraudulent marriage. Neither woman testified. At a trial held before the Supreme Court decided Crawford v. Washington, the military judge admitted both sworn statements in violation of Othuru's Sixth Amendment right to confrontation.

NMCCA held the error to be harmless beyond a reasonable doubt, and CAAF agreed. Citing other matters introduced by the government such as a demonstrably fake birth certificate for Michelle and the testimony of a records custodian from a Nigerian hospital, CAAF held that admission of the testimonial hearsay was harmless beyond a reasonable doubt.

Saturday, December 15, 2007

To quote the Go-Gos, Vacation

I'm leaving tomorrow for a vacation. I'll be back Tuesday evening. I don't expect to have Internet access while I'm gone, so I hope that my blogmates will be loquacious during my absence.

To certify or not to certify

This coming week, the Judge Advocate General of the Navy will have to decide whether to certify NMCCA's Wild decision to CAAF. CAAF's daily journal for 3 December included an order extending the deadline for filing a certificate of review in the case until 21 December 2007. United States v. Wild, __ M.J. ___, No. 08-5001/MC (C.A.A.F. Dec. 3, 2007). But given the normal one-day delay before daily journal items hit CAAF's web site and CAAF's closure on 24 December, we likely won't know what RADM MacDonald decides until Wednesday, 26 December.

Wild is a split unpublished NMCCA decision, available here. United States v. Wild, No. NMCCA 200700108 (N-M. Ct. Crim. App. Oct. 11, 2007). The government lost the original record of trial in the case. Almost two years after the CA acted, three copies of the record -- but not the original -- showed up at NAMARA. The Navy-Marine Corps Court indicates that it doesn't appear that any trial participant reviewed the copies or validated their completeness.

Writing for himself and Judge Harty, Judge Kelly set aside the CA's action and remanded the case for the military judge to authenticate a copy. Senior Judge Rolph dissented. He argued that given the presumption of regularity, the copies should be assumed to be accurate and complete copies of the lost original.

Without the split in the NMCCA panel, I doubt anyone would have seriously thought about certifying this case to CAAF. Any predictions as to whether the Judge Advocate General of the Navy will choose to certify it?

Important article from the Boston Globe

NIMJ's web site features a must-read article by Charlie Savage in today's Boston Globe. Here's a link. Here are the article's first three paragraphs, which will give you an overview of the piece:

The Bush administration is pushing to take control of the promotions of military lawyers, escalating a conflict over the independence of uniformed attorneys who have repeatedly raised objections to the White House's policies toward prisoners in the war on terrorism.

The administration has proposed a regulation requiring "coordination" with politically appointed Pentagon lawyers before any member of the Judge Advocate General corps - the military's 4,000-member uniformed legal force - can be promoted.

A Pentagon spokeswoman did not respond to questions about the reasoning behind the proposed regulations. But the requirement of coordination - which many former JAGs say would give the administration veto power over any JAG promotion or appointment - is consistent with past administration efforts to impose greater control over the military lawyers.

An Army certified issue

United States v. Gutierrez, No. ARMY 20040596, is the yo-yo of military appellate cases. At his court-martial, PFC Gutierrez was accused of assault with the intent to commit rape. A members panel found him guilty of the LIO of assault consummated by a battery and sentenced him to a BCD and confinement for two months. Then, in a published decision, ACCA set aside the findings and sentence, holding that the military judge erred by failing to sua sponte instruct on the affirmative defense of mistake of fact as to consent regarding the lesser-included offense of assault consummated by a battery. United States v. Gutierrez, 63 M.J. 568 (A. Ct. Crim. App. 2006). CAAF reversed ACCA, holding that the instructional issue was waived. United States v. Gutierrez, 64 M.J. 374 (C.A.A.F. 2007). CAAF remanded the case for further consideration by ACCA.

ACCA then specified an issue asking whether the trial defense counsel was ineffective by failing to request a mistake of fact instruction regarding the assault consummated LIO. In an unpublished opinion issued on 31 October 2007, ACCA held that the failure to request the instruction was IAC and again set aside the findings and sentence. United States v. Gutierrez, No. ARMY 20040596 (A. Ct. Crim. App. Oct. 31, 2007).

On Thursday, CAAF docketed the following certified issue:


United States v. Gutierrez, __ M.J. ___, No. 08-5004/AR (C.A.A.F. Dec. 13, 2007). Did Army GAD file an unsuccessful petition for grant of review, thus explaining why the certificate for review appears to have been filed more than 30 days after ACCA's decision?

Thursday, December 13, 2007

NIMJ comments on CAAF's proposed rules changes

Here is a link to NIMJ's comments on CAAF's proposed rules changes, which we previous discussed here.

Foerster set for conference

Greetings from Fort Leavenworth, where my stay may be involuntarily extended due to a predicted snow storm tomorrow. (I know, some of you wish I would have an involuntary stay at Fort Leavenworth for other reasons.)

Army DAD's cert petition in Foerster, No. 07-359, has been scheduled for conference on 4 January 2008. Happy New Year!

Wednesday, December 12, 2007

September issue of the Army Lawyer

The September issue of the Army Lawyer is now online. It appears to be devoted to international law. For those of you who wish to stray from the military justice othrodoxy, here's a link.

New military justice research resource

Note the following new item available on CAAF's web site:

A consolidated digest covering opinions from Oct 1998 to the current term is now available.

Here's a link.

Two new CAAF Opinions: CAAF Joins the Pack in Pack

Two new CAAF opinions today, Othuru and Pack. CAAF unanimously finds no violation of the accused's right to confrontation under Crawford v. Washington, 541 U.S. 36 (2004) in both cases (and finds no unreasonable appellate delay in Othuru). CAAF joins many other courts in holding that post-Crawford there is no Sixth Amendment violation in the use of remote testimony by a child witness in a criminal trial. CAAF's rationale, like the other cases CAAF cites, is direct Supreme Court precedent finding remote testimony by a child witness in a criminal trial constitutional. See Maryland v. Craig, 497 U.S. 836 (1990). More from CAAFlog tonight, I am sure.

Maryland v. Craig lives!

CAAF issued two new opinions in naval cases today. In United States v. Pack, __ M.J. ___, No. 07-0085/MC (C.A.A.F. Dec. 12, 2007), CAAF unsurprisingly held that Crawford v. Washington did not sub silentio overturn Maryland v. Craig. Perhaps the Kabul Klipper could brief us about CAAF's opinion in United States v. Othuru, __ M.J. ___, No. 06-0768/NA (C.A.A.F. Dec. 12, 2007).

New issue of the Reporter

Those of you with access to FLITE can read the fall issue of the Reporter. I'm afraid the rest of you will have to wait, because it doesn't seem to be up on a public web site yet.

The issue has at least three articles that will interest military justice practitioners. The issue starts with Captain Jason S. Robertson's article, An ADC in the AOR: Defending Those Defending America. With an unembarrassed enthusiasm that is a joy to behold, Capt Robertson writes about his experience setting up a trial defense office in Qatar, from which he would travel through Southwest Asia to provide defense services.

Colonel Charles W. Williamson III writes a detailed piece on the whys and hows of preparing a proof analysis.

The Military Justice Pointers article discusses a urinalysis litigation resource prepared by the legal advisor to the Air Force Drug Testing Laboratory. Unfortunately, the web site that the article discusses appears to be available only to those with FLITE access. Once again, this seems to put civilian defense counsel at an unwarranted competitive disadvantage. Each of the JAG Corps' information management specialists should consider how to make such resources available to ALL military justice practitioners -- a group that includes a fairly large number of civilian counsel unaffiliated with the United States government.

New AFCCA published opinion on post-trial proceedings

The Air Force Court doesn't appear to have updated its web site since Halloween. But I have received a copy of 7 of the 9 pages of an Air Force Court published opinion dated 21 November 2007. United States v. Dawson, __ M.J. ___, No. ACM S31065 (A.F. Ct. Crim. App. Nov. 21, 2007).

Because I have only a portion of the opinion, I can't recite the decisional issue with complete accuracy. But the decision appears to ask whether a military judge may order a proceeding in revision to clean up a deficient providence inquiry.

The opinion thoroughly examines the case law in this area and notes a split among the services and even a split in the Air Force Court's own precedent on the question. The court ultimately holds:

[W]hen an accused has entered a plea of guilty and the military judge fails to complete an inquiry to some or all of the elements but nothing inconsistent with guilt has been raised, we believe that the military judge can order a post-trial Article 39(a) session under R.C.M. 1102 and complete the necessary inquiry prior to authentication of the record. If there is no objection from trial defense counsel at the time of the later session, counsel waives the opportunity to object, exception for cases of material prejudice.

Id., slip op. at 8.

Given the opinion's forthright disagreement with Army and Coast Guard precedent -- as well as with the Air Force Court's own opinion in United States v. Kaetzel, 48 C.M.R. 58 (A.F.C.M.R. 1973) -- a CAAF grant seems likely. See C.A.A.F. R. 21(b)(5)(B)(iii), (iv).

I won't be in a position to put the opinion up on CAAFlog's web site until next Wednesday. But if it's not up on the Air Force Court's web site by then, I'll post it next week.

Monitoring and the attorney-client privilege

Greetings from the frozen mid-West.

There has been some interesting commentary on the subject of the effect of computer and phone monitoring on military defense counsel's ability to have privileged communications with their clients.

LeEllen Coacher, who is now on Judge Stucky's staff at CAAF, wrote an interesting Air Force Law Review article that addressed that issue. See LeEllen Coacher, Permitting Systems Protection Monitoring: When the Government Can Look and What It Can See, 46 A.F. L. Rev. 155, *183-88 (1999).

The ABA has also issued a relevant ethics Formal Opinion. ABA Standing Committee on Ethics and Professional Responsibility, Formal Opinion No. 99-413, Protecting the Confidentiality of Unencrypted E-Mail, Formal Opinion No. 99-413 (March 10,k 1999).

These sources would tend to suggest that DOD monitoring does not defeat the privilege, especially where DOD has regulations limiting the permissible secondary disclosure of privileged communications. Does anyone have authority suggesting that the attorney-client privilege would be defeated in this context?

Tuesday, December 11, 2007

Former Gitmo Prosecutor Interview and Torture Derived Evidence at Military Commission Hearings

I recommend the CBC interview with former Military Commissions Chief Prosecutor Colonel Morris Davis to anyone interested in military commissions. You can find it here, but need Real PlayerTM to listen. The interview veers off topic at about minute 8, talking about DoD General Counsel Haynes appointment, but comes quickly back and is otherwise good stuff. He discusses lots of core MilJus concepts and their application to the Commission process, I'll let you decide whether he is correct in their application.

As noted on other blogs, Colonel Morris has been prohibited from testifying before Congress regarding his stint as Chief Prosecutor . . . however, apparently Canadian radio is OK. Interestingly, on the very same day that Col. Davis was prohibited from testifying, the new Chief Prosecutor announced that evidence obtained through torture is NOT off limits for Guantanamo trials, something Col. Davis strictly prohibited his counsel from using. WaPo coverage here. The story reported,

Air Force Brig. Gen. Thomas W. Hartmann, who oversees the prosecutors who will try the detainees at military commissions, said that while "torture" is illegal, he cannot say whether waterboarding violates the law. Nor would he say that such evidence would be barred at trial.

"If the evidence is reliable and probative, and the judge concludes that it is in the best interest of justice to introduce that evidence, ma'am, those are the rules we will follow," Hartmann said in response to questions from Sen. Dianne Feinstein (D-Calif.), at a Senate Judiciary subcommittee hearing.

AWOL Military Justice by Col. Morris Davis

As Anonymous (our prodigious poster) noted, the former Chief Prosecutor for the Military Commissions wrote a letter to the editor of the L.A. Times on Monday, here. While CAAFlog is under his no blogging at work ban, I'll take advantage of the opportunity to opine on an area uniquely in his wheelhouse. For those that support military commissions Col. Davis' brief letter is an interesting insight into the troubles with the process, especially from a government side of the aisle insider. For detractors, this will add fuel to the fire for scrapping the system as it stands. For those of us judge advocates on the sidelines, it reiterates something a few former Judge Advocate Generals have said in the last 10 years, uniformed lawyers have an uphill battle to get their message to civilian leadership in positions of power.

The final paragraph of Col. Davis' letter (which I wish he would expand into a larger full length piece), sums up the Colonel's position and cites my favorite former POW:
Sens. John McCain and Lindsey Graham have said that how we treat the enemy says more about us than it does about him. If we want these military commissions to say anything good about us, it's time to take the politics out of military commissions, give the military control over the process and make the proceedings open and transparent.

IO reportedly recommends against court-martial for 1LT Whiteside

In today's WaPo, Dana Priest and Anne Hull report that the IO has recommended against disciplining 1LT Whiteside. Here's a link to their piece.

They report:

"One of the Army values is integrity, which is defined as doing what is right, legally and morally," Maj. Mervin H. Steals, the investigating officer assigned to conduct a preliminary hearing, wrote in his decision. "The moral thing to do is dismiss these charges, to allow 1LT Whiteside to end her military service and receive the benefits that she will desperately need for the remainder of her life."

They also report:
Wolfe [the TC] "failed to present any evidence contradicting the Defense claim" that Whiteside suffered from a psychotic break, Steals wrote. Having heard testimony from two senior psychiatrists, Steals said "it is clear [she] was not mentally responsible for the events of this day."

Finally, they report:
Even if Whiteside were aware of the wrongfulness of her suicide attempt, [the IO] said, "the idea of referring charges on her for this act would be inhumane."

Monday, December 10, 2007

Have an ice trip

Assuming that the entire middle part of the country isn't a giant skating rink by the morning, I'll be going TDY tomorrow -- with another visit to the Missouri River's Rive Gauche planned for later in the week. I'll be making a brief pit stop at home over the weekend before hitting the road again. I'll be back in the CAAFlog saddle a week from Wednesday. In the meantime, I hope that the No Man, the Kabul Klipper, the Super Muppet, JMTGst, and all those dead commodores keep the discussion going.

Another Air Force certificate of review

Today's daily journal update includes a certificate of review from the Judge Advocate General of the Air Force that was docketed on Friday:



United States v. Melson, __ M.J. ___, No. 08-5003/AF (C.A.A.F. Dec. 7, 2007).

The Air Force Court's unpublished per curiam opinion in the case is available here. United States v. Melson, No. ACM 36523 (A.F. Ct. Crim. App. Sept. 14, 2007) (per curiam). The Air Force Court ruled that Staff Sergeant Melson had received ineffective assistance of counsel due to his trial defense counsel's failure to challenge the legality of his pretrial confinement.

This case involves yet another airman held in pretrial confinement at a sub-par civilian jail -- this time Georgia's Lowndes County jail. Applying the Ginn factors, the Air Force Court held that Melson had presented sufficient facts to raise the issue of whether his trial defense counsel should have litigated the lawfulness of his pretrial confinement. The court emphasized that his allegations were unrebutted by any facts put forward by the Government. The court observed:

It is possible that the government could have met the burden [of demonstrating lack of illegal pretrial punishment] at trial if the trial defense counsel had raised the issue in that forum. Both sides could have presented evidence in support of their respective positions. However, it was not raised at trial and only the appellant has submitted information in support of his claim to this Court. It is, of course, possible that no evidence was presented at trial because trial defense counsel appropriately determined that the issue had no merit. However, that would merely be speculation on our part. Trial defense counsel is as silent on the issue before this Court as she was at trial. Although the government's argument attacking the appellant's credibility has some merit, it is, by itself, insufficient to prevail. The facts alleged may have resulted in relief for the appellant if they had been brought up during trial.

Id., slip op. at 7.

The Air Force Court remedied the IAC by awarding Melson 142 days of additional pretrial confinement credit.

I understand that at some point after the Air Force Court released this opinion, the Government offered an affidavit from the trial defense counsel, but the Air Force Court rejected it. That appears to be the basis for the second certified issue.

New CAAF opinion

CAAF has posted a per curiam opinion in United States v. Wright, __ M.J. ___, No. 07-0412/AR (C.A.A.F. Dec. 10, 2007) (per curiam). Here's a link.

Sunday, December 09, 2007

3 Stars for three wise men

I understand that the JAA is reporting that the version of the DOD Authorization Act that emerged from the conference committee includes a provision giving each of the Judge Advocates General three stars and giving a star to the Chairman of the Joint Chiefs of Staff's legal counsel. [See also the Kabul Klipper's post here, which he was apparently writing simultaneously with my drafting of this post.]

Floor votes in the House and Senate are expected soon; it is anticipated that the President will sign the bill not later than 18 December.

The conference report reportedly provides:

Conference Report to Accompany H.R. 1585 –
National Defense Authorization Act for Fiscal Year 2008

06 Dec 2007




Subsection (a) of section 3037 of title 10, United State Code, is amended by striking the third sentence and inserting the following new sentence: ‘‘The Judge Advocate General, while so serving, has the grade of lieutenant general.’’.


Such section is further amended—

(A) in subsection (a), by striking ‘‘Assistant Judge Advocate General’’ each place it appears and inserting ‘‘Deputy Judge Advocate General’’; and

(B) in subsection (d), by striking ‘‘Assistant Judge Advocate General’’ and inserting ‘‘Deputy Judge Advocate General’’.


(A) The heading of such section is amended to read as follows:

‘‘§3037. Judge Advocate General, Deputy Judge Advocate General, and general officers of Judge Advocate General’s Corps: appointment; duties’’.

(B) The table of sections at the beginning of chapter 305 of such title is amended by striking the item relating to section 3037 and inserting the following new item:

‘‘3037. Judge Advocate General, Deputy Judge Advocate General, and general officers of Judge Advocate General’s Corps: appointment; duties.’’.


Section 5148(b) of such title is amended by striking the last sentence and inserting the following new sentence: ‘‘The Judge Advocate General, while so serving, has the grade of vice admiral or lieutenant general, as appropriate.’’.


Section 8037(a) of such title is amended by striking the last sentence and inserting the following new sentence: ‘‘The Judge Advocate General, while so serving, has the grade of lieutenant general.’’.


Section 525(b) of such title is amended in paragraphs (1) and (2) (A) by striking ‘‘15.7 percent’’ each place it appears and inserting ‘‘16.3 percent’’.


(1) IN GENERAL. — Chapter 5 of title 10, United States Code, is amended by adding at the end the following new section:

‘‘§ 156. Legal Counsel to the Chairman of the Joint Chiefs of Staff

‘‘(a) IN GENERAL. — There is a Legal Counsel to the Chairman of the Joint Chiefs of Staff.

‘‘(b) SELECTION FOR APPOINTMENT.—Under regulations prescribed by the Secretary of Defense, the officer selected for appointment to serve as Legal Counsel to the Chairman of the Joint Chiefs of Staff shall be recommended by a board of officers convened by the Secretary of Defense that, insofar as practicable, is subject to the procedures applicable to selection boards convened under chapter 36 of this title.

‘‘(c) GRADE. — An officer appointed to serve as Legal Counsel to the Chairman of the Joint Chiefs of Staff shall, while so serving, hold the grade of brigadier general or rear admiral (lower half).

‘‘(d) DUTIES. — The Legal Counsel of the Chairman of the Joint Chiefs of Staff shall perform such legal duties in support of the responsibilities of the Chairman of the Joint Chiefs of Staff as the Chairman may prescribe.’’.

(2) CLERICAL AMENDMENT.—The table of sections at the beginning of chapter 5 of such title is amended by adding at the end the following new item:

‘‘156. Legal Counsel to the Chairman of the Joint Chiefs of Staff’’.

State Department/DOD MOA on private security contractors

NIMJ's web site has posted a Memorandum of Agreement between the State Department and the Defense Department dealing with United States Government private security contractors. Here's a link.

Conference Report Highlights

The conference report on the 2008 Defense Authorization Bill includes grade increases to lieutenant general or vice admiral for the position of Judge Advocate General in the Army, Air Force, and the Department of the Navy. Legal Counsel to the Chairman of the Joint Chiefs of Staff would become a one-star position.

The report also authorizes CAAF judges to administer oaths under Article 136 and requires the Secretary of Defense to prescribe regulations prohibiting active participation by members of the Armed Forces in a criminal street gang.

I'll send the text to No Man and ask him to put it up on

Saturday, December 08, 2007

The Long Arm of Long

This week's FedWeek "Armed Forces News" email newsletter notes upcoming changes to the privacy notice on government computers, apparently prompted by the decision in United States v. Long, 64 M.J. 57 (C.A.A.F. 2006). And yes, the statement of the case is inaccurate.

"5. No Right to Computer Privacy-------------------------------Beginning Dec. 12, Defense Department computers will carry new notices which will clearly tell both civilian and uniformed users that they have no right to privacy while using them. By using the computers, the notices will say, employees automatically understand and consent to monitoring of their emails. Shorter versions of the notices will also appear on government-owned BlackBerrys and other smaller electronic devices. The new notices come in the wake of a recent landmark decision by the Court of Appeals for the Armed Forces, involving a service member who used a government computer to discuss an impending drug test and the steps she took to mask her own drug use. She was convicted at court-martial based on evidence seized from her government computer, but another lower appeals court overturned the conviction because the existing language of the notice did not clearly state there was no right to privacy on government computers. The CAAF decision reversed the lower appeals court's ruling."

PS - You can sign up for the newsletter at It usually contains about 10 short bursts on personnel issues, legislative initiatives, etc., and provides URL's to promotion board results. It's released every Friday afternoon.

Thursday, December 06, 2007

United States v. Whiteside cont'

At the risk of throwing more gasoline on the Sigmund Freud/Anonymous TC fire, here's a link to today's WaPo editorial on the Whiteside case.

Another Naval Academy Officer/Instructor Related Court-Martial

And guess what the topic is? Yes, sex. This time it is a Chaplain accused of various sex acts committed on duty, including potential forcible (i.e. because he was a senior officer, not because physical force was involved) sex acts with Midshipman. See Brad Olson, Baltimore Sun story here. It appears CAAFlog reader David Sheldon is the Chaplain's attorney and a plea deal is in the works.

Incidentally, CAAFlog was contacted by the Sun to assist in obtaining the actual charge sheets (appropriately redacted to conceal victim names, of course). We did not make any contact with the Trial Counsel of convening authority, we just report the news, but we post the inquiry because of the news worthy result . . . the Marine Corps refused Sun writer Brad Olson's request to release the actual charge sheets, even though redacted charge sheets have commonly been released in high profile cases.

Wednesday, December 05, 2007

Second and third CAAF opinions of the Term

CAAF released two unanimous opinions today. One of them resolves an important legal issue: whether the common law "joint crime participant" or "crime/fraud" exception applies to Military Rule of Evidence 504 spousal communications privilege. In an opinion by Judge Ryan, CAAF unanimously concludes that it does not. United States v. Custis, __ M.J. ___, No. 07-0188 (C.A.A.F. Dec. 5, 2007). The opinion acknowledges that "[e]very federal circuit that has addressed the issue has found a 'joint crime participant' or 'crime/fraud' exception to the common law marital communication privilege." Id., slip op. at 8-9. But, the opinion holds, no such exception is included in Military Rule of Evidence 504 and "the authority to add exceptions to the codified privileges within the military justice system lies not with this Court or the Courts of Criminal Appeal, but with the policymaking branches of government." Id., slip op. at 9. CAAF also rejects the view that Military Rule of Evidence 501(a)(4), which authorizes the application of some federally recognized common law privileges to the military justice system, can be used to create an exception to an enumerated privilege. Id., slip op. at 10-11.

I think Custis is absolutely correct (a view with which JMTGst will likely disagree) and will almost certainly lead to a change in Military Rule of Evidence 504 to adopt a joint crime participant exception -- as the opinion expressly recognizes that the President is empowered to adopt. Id., slip op. at 9 n.8.

Today's second opinion is United States v. Parrish, __ M.J. ___, No. 07-0079/AR (C.A.A.F. Dec. 5, 2007), a unanimous opinion by Judge Erdmann. Parrish is a fact intensive decision involving application of the Ginn factors to determine whether ACCA could resolve a factual dispute itself or was required to remand the case for a DuBay hearing. CAAF concludes -- correctly, in my opinion -- that a DuBay hearing is necessary to resolve the factual conflict. But the whole Ginn approach cries out for a Manual change far more than does any need to tinker with Military Rule of Evidence 504. This is because every state and the federal civilian criminal justice system has a "post-conviction" proceeding or its equivalent to allow a convicted defendant who has completed direct appeal to challenge his or her conviction or sentence based on evidence from outside the record. See generally Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and Procedure 190 (4th ed. 2001). The House Armed Services Committee intended the petition for new trial to play a similar role in the military justice system, but it hasn't proved to be an effective counterpart, which has led CAAF to create the whole DuBay/Ginn framework. But this framework seems an inadequate substitute for a post-conviction proceeding because it plays out at the appellate level rather than the trial level, which in turn leads to enormous difficulties in fact finding and fact proving. Battles of affidavits ensue, leading to opinions like today's Parrish decision. There has got to be a better way. Any judge advocates who are now at TJAGLCS or who will be going there soon might want to make that their thesis topic -- is the current military justice analog to a post-conviction/28 U.S.C. § 2255 proceeding adequate and, if not, what system should be adopted in its place?

Tuesday, December 04, 2007

Proposed CAAF rules change

Last Thursday's Federal Register included a proposed change to CAAF's rules, available here. The principal proposal is to reform Rule 36A, governing citation of supplemental authority, which is CAAF's equivalent of FRAP Rule 28(j).

The proposal would amend Rule 36A in four ways: (1) it would better accord with reality by deleting the provision that the Rule 36A letter may not contain argument, in favor of a provision that "the letter must state why the supplemental citations are pertinent and significant"; (2) it would limit the body of a Rule 36A letter to 350 words; (3) it would require that the supplemental authority be attached to the letter; and (4) it would require that letters filed less than 5 days before an argument be submitted and served by overnight carrier or a faster method.

To paraphrase Meatloaf, three out of four ain't bad. The first change makes great sense, since as the Rules Advisory Committee notes, the line between explaining why the supplemental authority is relevant and "argument" is non-existent. In light of the first change, the second change also makes great sense to ensure that the letter doesn't become a vehicle for smuggling a supplemental brief into the courthouse. The fourth change is also sensible, though it will likely affect only civilian counsel since all of the military appellate shops probably send runners to E Street in this situation -- and walk the letter across the hall to serve their opposing counsel.

That leaves the third change. The Rules Advisory Committee tells us that this change has no counterpart in FRAP Rule 28(j). And little wonder, since its main effect will be to kill trees. I will bet you that most of the supplemental authority cited in Rule 36A letters consists of military justice cases that counsel come across during the moot court process. Why would the rules require counsel to attach copies of cases that every judge and CAAF staffer already has a copy of? If the supplemental authority is something esoteric, then the wise advocate will provide a copy even in the absence of a rule requiring it. If there is any need for a rule requiring counsel to append a copy of the supplemental authority, how about expressly exempting cases published in the Military Justice Reporter, Court-Martial Reports, the Supreme Court Reporter, the Federal Reporter (1, 2, or 3), and the Federal Supplement (1 and 2)? That could save a forest.

Monday, December 03, 2007

Ask not for whom the bell tolls; it tolls for ACCA's Roach opinion

Please check me on this one. I must not be reading the law correctly because if I am, ACCA's published opinion in Roach is not only obviously wrong, but is directly repudiated by a CMA case that the opinion actually cites. See United States v. Roach, __ M.J. ___, No. ARMY 20050018 (A. Ct. Crim. App. Nov. 30, 2007).

PVT Roach pled guilty to and was found guilty of stealing a night vision goggle and conspiring to steal a night vision goggle. Neither spec alleged that the NVG was military property, but all of the trial's participants operated on the assumption that the military property sentencing aggravator applied. (The larceny spec alleged that PVT Roach stole a "Night Vision Goggle (AN PVS-14), of a value of about $3,138.00, the property of the United States Government." As ACCA noted, "Neither specification included the specific words 'military property' when describing the NVG." Id., slip op. at 3.)

The military judge nevertheless told PVT Roach that the military nature of the property was an element of the offense, defined "military property," and elicited Roach's agreement that the NVG was military property.

ACCA found that "the unique military nature of an NVG is readily apparent from its purpose and function." Id., slip op. at 6. The court continued:

Equally significant, both the larceny and conspiracy specifications alleged that the property was stolen "at or near Fort Benning, Georgia" and was an "AN/PVS-14, [Night Vision Goggle]6 . . . property of the United States Government." (emphasis added). Accordingly, the unique military nomenclature of the stolen NVG, location of theft, and identification of the item as belonging to the United States Government is sufficient on these facts to fairly characterize the property as military property.


ACCA concluded:

The specifications provided sufficient notice that the object of the larceny and conspiracy was military property, protected appellant from double jeopardy, and appellant has alleged no specific prejudice due to the omission. Consequently, "under the circumstances of this case, the specification is sufficient to withstand challenge at this late stage of the proceedings." Watkins, 21 M.J. at 210.

Id., slip op. at 7.

Here's the weird part. ACCA includes this quotation in the first paragraph of its discussion: "There is no special repercussion at all flowing from whether the property was 'property of the United States Government.' United States v. Hemingway, 36 M.J. 349, 352 (C.M.A. 1993)." Roach, slip op. at 6. Let's look at the two sentences that immediately follow that one in Hemingway, shall we?

Consequently, we agree with appellant that, in the absence of an allegation that the object of the conspiracy to steal was "military property," the maximum confinement imposable for each of the two conspiracy specifications here was 5 years. See [Manual for Courts-Martial, United State (1984),] para. 46e(1)(d) (Change 3). This reduces the total maximum sentence to confinement that appellant faced to 30 years (5 years for each conspiracy and 10 years for each larceny of military property), not 40 years, as the military judge advised.

Hemingway, 36 M.J. at 352.

Am I misreading Judge Wiss's opinion for a unanimous court, or does Hemingway address exactly the issue decided by Roach and reach exactly the opposite conclusion? If I'm not misreading it, how could ACCA have quoted Hemingway without discovering that the very next sentence compels the opposite conclusion from the one ACCA reached?

Now the Hemingway opinion might not ultimately help PVT Roach. It certainly didn't help Specialist Hemingway. CMA concluded that Hemingway would have pled out with the same deal regardless of whether his maximum sentence was calculated at the military property or non-military property rate. But even if ACCA reached the right result in Roach, it seems to have done so by an impermissible means -- by ignoring CMA's holding that "in the absence of an allegation that the object of the conspiracy to steal was 'military property,' the maximum confinement imposable for each of the two conspiracy specifications here was 5 years." 36 M.J. at 352.

Two new published ACCA opinions

United States v. Heitkamp, __ M.J. __, No. ARMY 20060998 (A. Ct. Crim. App. Nov. 30, 2007), explores the distinction between the mistake of fact and the mistake of law defenses in the context of drug offenses. ACCA warns that the Military Judges' Benchbook might suggest an incorrectly high bar that must be cleared concerning knowledge of a substance's contraband nature and recommends that both the Benchbook and the Manual for Courts-Martial be amended. See id., slip op. at 9 & n.8.

The central issue in Heitkamp seems to be whether it is sufficient to constitute an Article 112a offense for the accused to know that he or she possesses a substannce and that -- regardless of whether the accused knows this or not -- that substance is illegal. In other words, if an accused possesses a particular steroid and knows that the substance is that steroid, is the accused guilty of violating Article 112a even if the accused honestly believes that possession of that steroid is legal? Yes, rules ACCA. Here is the court's principal analysis of the issue:

To be guilty of wrongful possession of a controlled substance, an accused need only have knowledge as to the presence and identity of the substance. Mance, 26 M.J. at 254. Appellant admitted to both. He agreed that he knew he possessed the steroid tablets, an unprescribed, Schedule III controlled substance. Although the military judge informed appellant that he must know "the substance was of a contraband nature" and he "must know of the contraband nature of the substance[,]" the military judge merely read an inartfully drafted instruction and did not provide appellant with a defense to his conduct.

Based upon how "contraband" is defined in the MCM . . ., "contraband nature" implies unlawful nature of the item possessed. Thus, use of the term "contraband nature" in the MCM and Benchbook might be incorrectly read to imply appellant must know of the unlawful nature of the item. This is not the law. Appellant's knowledge of unlawfulness is not required and his lack of knowledge of the unlawfulness of a contraband item is not a defense. Rather, the law only requires that an accused know the substance is anything unlawfully possessed (i.e., contraband). Appellant admitted just that by agreeing he knew he possessed methandienone and that he now knows it is unlawful to do so.

Id., slip op. at 9 (footnotes omitted).

Sunday, December 02, 2007

WaPo coverage of United States v. Whiteside

Dana Priest and Anne Hull have a major story about the case and Article 32 investigation of 1LT Elizabeth Whiteside in today's Post. (They are the same reporters who broke the Walter Reed story in February.) Here's a link. The Whiteside case arises from an incident that occurred at Camp Cropper in Iraq on 31 December 2006. During the incident, 1LT Whiteside allegedly pointed a loaded weapon at a major, shouted that she wanted to kill other soldiers, discharged two rounds into the ceiling and ultimately shot herself in the stomach. According to the article, the charges against her include assault on a superior commissioned officer, aggravated assault, kidnapping, reckless endangerment, wrongful discharge of a firearm, communication of a threat, and two attempts of malingering without intent to avoid service.

The article indicates that at the Article 32 hearing, the "psychiatrist who performed Whiteside's sanity board evaluation testified that he found the lieutenant insane at the time of the shooting. One of the doctors said that Whiteside had a 'severe mental disease or [defect]" and that she "did not appreciate the nature and quality of her actions."

The article also recounts a dramatic exchange:

[MAJ Stefan Wolfe, the trial counsel] pressed a senior psychiatrist at Walter Reed to justify his diagnosis.

"I'm not here to play legal games," Col. George Brandt responded angrily, according to a recording of the hearing. "I am here out of the genuine concern for a human being that's breaking and that is broken. She has a severe and significant illness. Let's treat her as a human being, for Christ's sake."

A decision on disposition of the charges is pending.

Friday, November 30, 2007

Brown's essence

In Brown, the military judge (the universally respected Chief Judge Vowell) "instructed the members on rape" and three lesser included offenses including indecent assault. "She instructed the members that to find Appellant guilty of indecent assault, they could find he did so 'by inserting his fingers and penis, or fingers, or penis into [PFC NB's] vagina.'" United States v. Brown, __ M.J. ___, No. 07-0286, slip op. at 5 (C.A.A.F. Nov. 30, 2007). The members found Staff Sergeant Brown not guilty of rape but convicted him of the lesser included offense of indecent assault. The issue before CAAF in Brown was whether "the military judge erred by instructing the members that Appellant could be convicted of indecent assault based on any one of three factual scenarios, without requiring the members to vote on each scenario and to disclose the factual basis of their findings." Id., slip op. at 5-6.

CAAF definitively and unanimously answers, No. Judge Stucky's opinion for the Court reasoned:

With minor exceptions for capital cases, a "court-martial panel, like a civilian jury, returns a general verdict and does not specify how the law applies to the facts, nor does the panel otherwise explain the reasons for its decision to convict or acquit." United States v. Hardy, 46 M.J. 67, 73 (C.A.A.F. 1997). In returning such a general verdict, a court-martial panel resolves the issue presented to it: did the accused commit the offense charged, or a valid lesser included offense, beyond a reasonable doubt? A factfinder may enter a general verdict of guilt even when the charge could have been committed by two or more means, as long as the evidence supports at least one of the means beyond a reasonable doubt. Griffin v. United States, 502 U.S. 46, 49-51 (1991); Schad v. Arizona, 501 U.S. 624, 631 (1991) (plurality opinion) ("We have never suggested that in returning general verdicts in such cases the jurors should be required to agree upon a single means of commission, any more than the indictments were required to specify one alone.").
Id., slip op. at 9-10.

As Judge Mathews the Greatest indicates in his comment to the post below, it's hard to argue with that conclusion.

AF JAG certifies CA reassessment issue

An Air Force JAG certificate of review was filed at CAAF today, seeking review of the Air Force Court's unpublished decision in United States v. Perez, No. ACM 36799 (A.F. Ct. Crim. App. Sept. 12, 2007). (The Air Force Court's opinion is available here. Thanks, JMTGst!)

Senior Airman Perez was found guilty of rape, disobeying an order, and assault consummated by a battery. The military judge sentenced him to confinement for 18 months, a BCD, and reduction to E-1. After trial, the SJA's office discovered that the alleged rape victim had recanted. The CA ordered a post-trial Article 39(a) session. The military judge then found that credible evidence existed that the alleged victim had recanted and that that new evidence warranted a new trial. He also stated that had he been aware of the new evidence, he would not have convicted Perez of rape and that he would have imposed a sentence of only confinement for six months, reduction in grade, and total forfeitures for the remaining offenses.

Rather than order a new trial, the convening authority disapproved the finding of guilty to the rape offense. At the SJA's advice, the CA approved a sentence of a BCD, confinement for 206 days, and reduction to E-1. (Note that the MJ had said his sentence for the remaining offenses would not have included a punitive discharge.)

The issue before the Air Force Court was whether this action by the convening authority was an unreviewable exercise of clemency or a legal matter that could be subjected to the equivalent of a Sales/Peoples analysis. The Air Force Court concluded that it was the latter. The court reasoned:

In this case, although there was no error at the time of trial, thereafter new evidence was discovered. This evidence met the criteria, under R.C.M. 1210, for a new trial. Rather than ordering a rehearing on findings and sentencing or sentencing only, the convening authority decided to take other corrective action designed solely to provide an expeditious means to correct the error. See R.C.M. 1107(c)(2)(A), Discussion. In the case sub judice, the actions of the convening authority amount to corrective action based upon errors (new evidence) rather than action in the form of clemency.

The court then ruled that the CA erred in his reassessment when he approved a sentence greater than that which the MJ would have adjudged. The court reasoned:

The convening authority had the benefit of knowing exactly what the sentencing authority would have done, but he reassessed a sentence greater than that which the sentencing authority would have imposed absent the error (new evidence). Under the unique circumstances of this case, the correct standard would have been to order a sentence rehearing or apply the above referenced standard for sentence reassessment.

The correctness of that ruling is now before CAAF.

First opinion of the Term

CAAF released its first opinion of the Term today, which is available here. United States v. Brown, __ M.J. ___, No. 07-0286/AR (C.A.A.F. Nov. 30, 2007). Judge Stucky for a unanimous court upholding an unpublished ACCA ruling for the government.

Today's ruling results in Guert winning this year's pool. Guert, would you like the t-shirt or the book?

Thursday, November 29, 2007

Additional briefing ordered in Larson -- UPDATED

On Tuesday, CAAF heard oral argument in United States v. Larson, No. 07-0263/AF. There were two granted issues in Larson. The first concerned whether Major Larson had a reasonable expectation of privacy in his government computer. The second concerned whether the civilian defense counsel was ineffective when, "in his opening statement, during findings, and again in closing argument, [he] conceded the Appellant's guilt to various charges and specifications."

Tuesday's oral argument didn't make it past the first issue. Apparently that left the Judges with some questions about the second. Today CAAF ordered supplemental briefing in Larson on the following two issues:



United States v. Larson, __ M.J. ___, No. 07-0263/AF (C.A.A.F. Nov. 29, 2007) (order).

Larson is shaping up to be a major decision on the division of authority between a lawyer and the client. CAAF seems to be particularly interested in issues concerning the attorney client relationship. Last week, CAAF remanded the Roach case to the Air Force Court for the limited purpose of allowing the defense to challenge AFCCA's listing of the Chief of the Appellate Defense Division as an "Appellate Counsel for the Appellant" even though she had never signed any submission to the Air Force Court in the case. United States v. Roach, __ M.J. ___, No. 07-0870/AF (C.A.A.F. Nov. 21, 2007) (summary disposition).

On 7 December, the Air Force Court revised its Roach opinion to delete the Chief of the Appellate Defense Division from the list of "Appellate Counsel for the Appellant."

[DISCLAIMER: I am one of Senior Airman Roach's appellate defense counsel.]

SG's opposition in Foerster

Here's a link to the SG's brief in opposition to the cert petition seeking review of CAAF's decision in United States v. Foerster, 65 M.J. 120 (C.A.A.F. 2007). The opposition was filed yesterday.

Wednesday, November 28, 2007

You can't spell CCA without A-C-C

Still can't see the Foerster

The Solicitor General's reply to the cert petition seeking review of United States v. Foerster, 65 M.J. 120 (C.A.A.F. 2007), was due today. It's not up on the SG's web site yet. I'll keep checking and post a link when it hits the web.

Tuesday, November 27, 2007

A civilian analog to Article 66 review

Military justice practitioners are fond of saying that the Courts of Criminal Appeals' Article 66 review is unique. I, myself, made this mistake in a recent publication. Colonel Dwight H. Sullivan, Killing Time: Two Decades of Military Capital Litigation, 189 Mil. L. Rev. 1, 22 (2006) ("the intermediate military appellate courts' factual sufficiency review is probably unique") (citing United States v. McAllister, 55 M.J. 270, 277 (2001) ("The Courts of Criminal Appeals are unique in that they are charged with 'the duty of determining not only the legal sufficiency of the evidence but also its factual sufficiency.' United States v. Turner, 25 M.J. 324 (C.M.A. 1987).")). But to quote Harry S Truman, "There is nothing new in the world except the history you do not know" -- or, in my case, case law and a statute that I didn't know.

Watson v. State, 204 S.W.3d 404 (Tex. Ct. Crim. App. 2006), is an unusually fascinating opinion concerning factual sufficiency review by Texas appellate courts. The majority tells us that "criminal appellate courts in Texas have always had factual review jurisdiction, conferred by both the Texas Constitution and by Article 44.25 and its predecessors." Id. at 409. The majority goes on, however, to adopt a quite limited scope for such factual sufficiency review that is marginally more searching than Jackson v. Virginia, 443 U.S. 307 (1979), but far less muscular than Article 66 review.

In her dissent, Judge Cochran tells us:

I am aware of only two other jurisdictions, New York and the United States military courts, that currently employ a factual-sufficiency review. In each of those jurisdictions, a statute explicitly authorizes such a review.[n.161] There is no such statute in Texas.

[n.161] NY CLS CPL § 470.15(5); see People v. Bleakley, 69 N.Y.2d 490, 492 N.E.2d 672, 673, 515 N.Y.S. 2d 761 (Ct. App. 1987) (court of appeals erred in failing to conduct statutorily required factual-sufficiency review when defendant claimed evidence was insufficient); 10 U.S.C.S. § 866 (c) ("the [Military] Court of Criminal Appeals may act only with respect to the findings and sentence as approved by the convening authority. . .as it finds correct in law and facts . . . . In considering the record, it may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses").

Watson, 204 S.W.2d at 426 (Cochran, J., dissenting).

The New York statute that Judge Cochran cited sets out the scope of review for New York's intermediate appellate courts. It provides: "The kinds of determinations of reversal or modification deemed to be on the facts include, but are not limited to, a determination that a verdict of conviction resulting in a judgment was, in whole or in part, against the weight of the evidence." NY CLS CPL 470.15[5]. Interestingly, the same statute also gives New York's intermediate appellate courts the authority to reverse or modify a sentence that "though legal, was unduly harsh or severe." Id. at § 470.15[6].

These citations suggest that there is an entire body of state case law construing a civilian counterpart to Article 66 that can be mined by military appellate practitioners. Yet I can find only one military appellate decision that turns to New York case law discussing § 470.15, and it does so in a sentence appropriateness context. United States v. Silvernail, 1 M.J. 945, 957 (N.C.M.R. 1976). Given that the Silvernail decision endorsed the use of New York case law in interpreting Article 66, I wonder why that approach hasn't caught on. Here's what the Navy Court said in Silvernail:

In People v. Zuckerman, 5 N.Y. 2d 401, 185 N.Y.S. 2d 8, 157 N.E. 2d 862 (1959), the New York Court of Appeals construed § 543 of the New York Code of Criminal Procedure, which provided in part that an appellate court might "reduce the sentence imposed." The Court of Appeals held that "[u]nder the broad powers of the Appellate Division to reduce sentences is included the power to hold, in a proper case, that sentence or the execution of sentence should be suspended." 5 N.Y. 2d at 403-404, 185 N.Y.S. 2d at 10, 157 N.E. 2d at 863. The present New York statute, § 470.15 of the Criminal Procedure Law, which permits the appellate court to "modify the criminal court judgment, sentence or order", has also been interpreted as implying a power to suspend the sentence. See, e.g., People v. Telech, 47 A.D. 2d 997, 366 N.Y.S. 2d 750 (4th Dept. 1975); People v. Bonomo, 47 A.D. 2d 862, 366 N.Y.S. 2d 42 (2nd Dept. 1975). The New York court's interpretations of statutes similar to Article 66(c) of the Code seem both apposite and persuasive.


Duty, Duty, Duty

I just saw my first Jury Duty stamp, which the post office website states was released two months ago. It depicts 12 profiles of heads in various colors all facing to the right, with the words "JURY DUTY Serve with Pride."

Maybe the post office should also release one to honor duty as a court-martial panel member - show only 5 profiles, make it postcard rate (to reflect the fewer numbers), and use it as a PSA to avoid that sleeping panel member issue by stating on the stamp "PANEL DUTY Serve Alert." But no need to change the direction of the heads.

Monday, November 26, 2007

MCM hijinks

Judge Cox once wrote, "I know that young judge advocate officers love witty exchanges, practical jokes, and a sense of the macabre in their humor." United States v. Smith, 27 M.J. 242, 252 (C.M.A. 1988) (Cox, J., concurring). It looks like one of those practical jokes made it into the Manual for Courts-Martial, as my treasured colleague Capt Tim the Enchanter Cox showed me today.

Grab your trusty MCM. Now look up "Jet" in the index. There it is, on page 34 of the index. What does it say? "See Plane." Okay, "Plane" is on page 45 of the index. What does it say? "See Aircraft." There's "Aircraft" on page 3. What does it say? "See Jet." And the cycle begins anew. And in case there is any doubt that someone inserted this as a joke, the only two mentions of "Jet" in the entire MCM are in those two index cross-references.

But wait, there's more -- though whoever the practical joker who inserted this was didn't do as good a job this time. Look up "Boat." There it is on page 7. But there's an oddity -- there are two separate listings for "Boat." One is the entryway into another gag; the other is a legitimate cross-reference. The first reads, "See Ship." The second reads, "See Vessel." Let's start with the top one, shall we? "Ship" is on page 59. Once again it has two entries. The first reads, "See Carrier." The second reads, "See Vessel." If we do, indeed, see "Carrier," it will close the circuit by referring us to "Boat." But if we go to vessel, we will see actual references to the offenses of hazarding a vessel and jumping from a vessel. It's not nearly as clever when you have to post shadow entries to make it work.

We traced the origin of this bit of tom foolery to the 1995 edition of the MCM. The speculation in the Carpenter Building was that some Army working group member snuck it in to goof on the Air Force and the Navy. Does anyone know who the culprit is?

Capital writ appeal

On 14 November, CAAF docketed a writ appeal in the capital case of Martinez v. Henley, __ M.J. ___, Misc. No. 08-8002/AR (C.A.A.F. Nov. 14, 2007). (The docketing order indicated that the writ appeal had been filed on 5 November.) I can't find ACCA's opinion or order in the case.

On 15 November, CAAF extended GAD's reply time to 30 November.

I understand that the writ appeal presents four issues: (1) whether the accused is entitled to a new Article 32 investigation due to a denial of a defense continuance request (the military judge apparently reopened a portion of the 32, but the defense is arguing for the whole enchilada); (2) whether it was impermissible for a federal prosecutor to serve as the Article 32 investigating officer; (3) whether the CA improperly considered a "time of war" aggravating factor; and (4) whether the accused is entitled to specially qualified counsel in a death penalty case.

If any Army lurkers have corrections to that account, please let me know. This sounds like an extremely interesting bit of litigation.

Another addendum sjar non-service grant

CAAF granted review today in United States v. Jones, __ M.J. ___, No. 07-0738/AF (C.A.A.F. Nov. 26, 2007), on the following issue: "WHETHER THE ADDENDUM TO THE STAFF JUDGE ADVOCATE'S RECOMMENDATION CONTAINS 'NEW MATTER' NOT PROVIDED TO DEFENSE COUNSEL FOR COMMENT, NECESSITATING A NEW CONVENING AUTHORITY ACTION IN THIS CASE." But CAAF directed that no briefs be filed.

The Air Force Court's unpublished opinion decision gives this account of the facts giving rise to the issue:
In response [to the SJAR], the appellant submitted a clemency package which, in addition to numerous other attachments, included letters from the appellant and his trial defense counsel. In these letters, the appellant and his counsel asked the convening authority to disapprove the bad-conduct discharge or in the alternative, set aside the guilty finding for Charge III, Specification 3. The reason for the request was based upon the following: the victim was the aggressor; the appellant had been
rehabilitated in confinement; and the statements made by the military judge on the record. The clemency petition from the trial defense counsel referenced a statement made by the military judge, in which the military judge indicated the sentence in this case had been a very difficult decision for him to make. . . .

The addendum to the SJAR addressed the defense request for clemency. . . . In the fourth paragraph of the addendum, the SJA made the following statement:
I recommend against granting [the appellant's] clemency request. A punitive discharge is appropriate for the offense [sic] for which the accused was convicted. The offenses involved sexual acts with a minor. Despite [the appellant's] characterization of the victim as the aggressor, he was the adult in this relationship. The judge considered the defense evidence and decided a bad conduct discharge is appropriate in this case, and I concur. . . .

United States v. Jones, ACM S31078 (A.F. Ct. Crim. App. May 30, 2007) (footnotes omitted).

The Air Force Court concluded that the Addendum SJAR didn't contain new matter and that even if it did, the result would have been the same even if it had been served on the accused.

But wouldn't it really have been a lot better for the Air Force had the SJA simply served the Addendum SJAR on the defense and provided an opportunity to respond if the defense so desired?

Saturday, November 24, 2007

Does the SCRA tolling provision apply during periods of confinement resulting from a court-martial conviction?

On 15 November, Judge Block of the United States Court of Federal Claims rendered a mixed decision on a pro se collateral challenge to a court-martial conviction. Lowe v. United States, No. 06-121C, 2007 U.S. Claims LEXIS 363 (Ct. Fed. Cl. Nov. 15, 2007). (The case produced a published opinion dealing with ineffective assistance of post-trial counsel from the Navy-Marine Corps Court on direct review. United States v. Lowe, 50 M.J. 654 (N-M. Ct. Crim. App. 1999)).

Here's the most interesting question that the case presents: can a servicemember confined as the result of a court-martial conviction whose punitive discharge has not yet been executed invoke the tolling provisions of the Service members' Civil Relief Act (SCRA) to file a Tucker Act action collaterally challenging beyond the six-year statute of limitations? Yes, rules Judge Block.

Judge Block frames the decisional issue as whether confinement pursuant to a court-martial conviction is "military service." If so, then the SCRA tolls the Tucker Act's statute of limitations until the court-martial convict is actually discharge.

Judge Block concludes that service of confinement in a military facility as the result of a court-martial conviction is military service, reasoning:

[P]laintiff was not absent during the period of his military confinement but instead was present, in military custody, at the bases to which he was assigned by the Marine Corps. Furthermore, . . . plaintiff remained on active duty during his military confinement because he had neither received his final pay nor was his DD Form 214 "ready for delivery." One can hardly consider plaintiff's confinement as not being "service connected" 00 which this Court believes is the test for "active duty." Simply put, plaintiff was convicted and incarcerated for violations of the UCMJ relating to his actions while he served on active duty. For this Court to accept defendant's argument would be to denigrate the crucial role that law and regulation play in military discipline. Further, there exists a constitutional component to the Court's position. Failing to recognize that a service member is on active duty, even when incarcerated in the "brig" for violations of military law, until officially separated or discharged, ignores the near-plenary power that the Constitution delegates to Congress "to make Rules for the Government and the Regulation of the land and naval forces . . . ." U.S. Const., art. I, § 8, cl. 14. The Constitution clearly envisioned the promulgation of a special system of military justice, and this system has indeed become an essential part of the American military. See O'Callahan, 395 U.S. at 262-62. It can hardly be said that those service members subject to that system -- even when tried, convicted, and incarcerated under military law -- are not engaging in activities that are "service connected."
Lowe v. United States, No. 06-121C, slip op. at 11 (some internal citations omitted).

What do you think? Did Judge Block get it right?

Friday, November 23, 2007

Beware the Navy JAG Corps web site's reading room

In updating the military justice research links on this page today, I came across something disturbing. I have previously noted that the Navy JAG web site's reading room includes the 2000 edition of the Manual for Courts-Martial and the 2000 edition of the UCMJ. That's bad enough, but at least almost everyone tempted to access the MCM will know that's not the current edition. Not so with the Reading Room's link to the JAGMAN. Wouldn't you think that the Navy JAG Corps' own web site would include the most current version of the JAGMAN which is, after all, issued by the Judge Advocate General of the Navy? I did. But I was wrong. Go to the Navy JAG Corps web site's home page here. Now click on Reading Room, which will take you here. Now click on the top link, which is called "Navy JAG Instructions and COMNAVLEGSVCOM Instructions." Scroll down to "JAG 5800.7D" which is the JAGMAN (or, to be more precise, which was the JAGMAN). What's the date? 15 March 2004. Why, of why, isn't the current version -- JAGINST 5800.7E dated 20 June 2007 -- on the Navy JAG Corps' own web site?

It seems apparent from the comments on this blog that most of the active readers are naval judge advocates. Could one of you seize the initiative to get the Navy JAG Corps' web site updated before some poor counsel or judge gets a case reversed for relying on an outdated regulation?

Just call me Sir Links-a-lot

I have updated the military justice research links on the right side of this page with links to a number of web sites or particular documents that I often use when writing briefs. (I'll admit my motives were partly selfish -- now I can simply access those sites via the CAAFlog home page.)

I encourage you not only to use those links, but also to post a comment here letting us know of other links you often use in military justice research.

Shakespearian anagrams

WARNING: This post is not about a military justice topic.

I was fortunate to have had a fabulous Advanced Con Law professor -- John Jeffries, who is now finishing up his tenure as dean of UVA Law. I distinctly remember so many of the discussions in his classroom more than 20 years ago. And it was he who introduced me to John Hart Ely's Democracy and Distrust, which influenced my view of constitutional law more than any other jurisprudential book I have read.

One of the things I expressly remember reading for that class was Justice Harlan's dissent in Wesberry v. Sanders, 376 U.S. 1 (1964), the case that essentially applied Baker v. Carr, 369 U.S. 186 (1962), to federal congressional districts. It did so largely on the basis of Article I, section 2's provision that "[t]he House of Representatives shall be composed of Members chosen every second Year by the People of the several states." Justice Harlan objected in dissent, "Although many, perhaps most, of [the delegates to the constitutional convention] believed generally -- but assuredly not in the precise, formalistic way of the majority of the Court -- that within the States representation should be based on population, they did not surreptitiously slip their belief into the Constitution in the phrase 'by the People,' to be discovered 175 years later like a Shakespearian anagram." Wesberry, 376 U.S. at 27 (Harlan, J., dissenting).

While the phrase stuck with me, I never appreciated its true meaning until I recently read Bill Bryson's new biography of Shakespeare. Bryson devotes the final chapter of the book to considering who wrote Shakespeare's works. He concludes emphatically that Shakespeare's works were by -- of all people -- Shakespeare. Bryson also attempts to debunk the arguments put forward by others that Shakespeare's works were actually written by Francis Bacon or the Edward de Vere, Earl of Oxford or Christopher Marlowe or many others other than the Bard of Avon. His synopsis of Bacon supporters' arguments includes a description of a supposed Shakespearian anagram:

Sir Edwin Durning-Lawrence, . . . in [his] popular book, Bacon Is Shakespeare, published in 1910, found telling anagrams sprinkled throughout the plays. Most famously he saw that a nonce word used in Love's Labour's Lost, "honorificabilitudinitatiubus," could be transformed into the Latin hexameter "Hi ludi F. Baconis nati tuiti orbi," or "These plays, F. Bacon's offspring, are preserved for the world."

Bill Bryson, Shakespeare: The World As Stage 186-87 (2007).

I didn't realize until reading that passage that Harlan apparently was referring to anagrams that purported to rebut Shakespeare's authorship of his own works. His analogy becomes even more deliciously biting in light of that provenance.

Thursday, November 22, 2007

Get the lead out of military justice

On Sunday, the Washington Post and 60 Minutes ran important stories dealing with scientific quackery about lead composition analysis that FBI lab analysis peddled for years. See here and here and here.

Today's Post contains a follow-up by John Solomon about the Senate Judiciary Committee's response to the Post's earlier reporting. The article's lead reads: "The chairman of the Senate Judiciary Committee yesterday demanded that the Justice Department turn over to Congress all cases involving the FBI lab's use of a now-discredited bullet-matching forensic test and criticized the department for failing to alert defendants whose convictions were affected by the flawed science." The article also stated, "In response to the reports, the FBI has announced it will review all bullet-lead testimonies that led to convictions and alert prosecutors to any misleading statements so that defendants can be notified. Separately, two umbrella groups for criminal-defense lawyers are launching their own effort to help people who might have been convicted using the science."

One case where the now-discredited FBI lead composition analysis was used is familiar to military justice practitioners: United States v. LCpl Wade Walker, No. 9501607 (N-M. Ct. Crim. App. redocketed Aug. 10, 1995). LCpl Walker, of course, currently resides on death row and the United States Disciplinary Barracks.

I haven't read the complete record of trial in United States v. Parker, but I suspect similar quackery was presented in that case. Can one of his counsel let us know?

[Disclaimer: I was an appellate defense counsel in the Walker case.]