Thursday, May 03, 2007

Adcock: a typo most foul and a slope too slippery by half

When United States v. Adcock was before the Air Force Court, it resulted in a 5-4 en banc decision. 63 M.J. 514 (A.F. Ct. Crim. App. 2006). The CAAF majority agrees with Judge Mathews the Great's dissent. But, egad, the majority misspells Judge Mathews the Great's name. See slip op. at 6.

JMTG began his dissent by observing: "This case presents the question: Must the government obey its own laws? Today, regrettably, a majority of this Court concludes it need not." 63 M.J. at 523. Why did JMTG have to retire?

But two passages from the CAAF Adcock dissent disturb me even more than the majority's misspelling of the name of the Official CAAFlog Favorite CCA Judge (OCFCJ).

First, Judge Stucky writes:

This decision . . . involves this Court in areas relating to facilities, conditions of confinement, and administrative decisions with respect to prisoners where there is no Article 13, UCMJ, violation. The President gave authority to the service secretaries to address these matters. See R.C.M. 304(f).

Huh? The majority isn't usurping the Secretary of the Air Force's authority; rather, the majority is enforcing the rules that the Secretary of the Air Force adopted. It may or may not be the right answer to enforce those rules by awarding an additional day of confinement credit, but CAAF can hardly be faulted for considering the appropriate remedy where both the trial judge and the CCA agreed that First Lieutenant Adcock's pretrial confinement conditions did violate the relevant Air Force Instruction.

In fact, if anyone should be criticized for stepping on the Secretary of the Air Force's toes, it should be the officials at Travis Air Force Base who deliberately decided to violate the Air Force Instruction. It was they, not CAAF, who usurped the authority of the Secretary of the Air Force. As JMTG explained:
The violations of AFI 31-205 cited by the appellant were well known to the government prior to her trial. The trial counsel conceded that Solano County confinement facility officials previously advised authorities at Travis AFB that the county did not comply with AFI 31-205's prohibitions against commingling pretrial detainees and convicted criminals. The government was further on notice that detainees held by the county were required to wear the same uniforms as convicts. County officials advised the authorities at Travis AFB that they had no intention of ever complying with Air Force standards on commingling or the wear of prisoner uniforms.

There were, according to the trial counsel, "numerous" challenges by detainees to the incarceration plan used by Travis AFB prior to the appellant's trial. Despite these challenges, and although the government was aware that the county facilities did not conform to the requirements of the law embodied in AFI 31-205, the government did not change its practice of using the county as its jailor. Furthermore, the record discloses no effort by any official at Travis AFB to bring the conditions of the appellant's detention by Solano County into line with AFI 31-205.

The government took no steps to move the appellant to a suitable military facility, nor did it apparently even consider doing so, until 7 May 2004. On that date, the government lost a motion for pretrial confinement credit filed by the accused in United States v. Fletcher, an unrelated case. The accused in that case was also incarcerated in the Solano County jails and subjected to substantially the same conditions as the appellant. The military judge in Fletcher awarded the accused two-for-one credit against his time spent in the county jails. According to representations by the trial counsel, the government immediately "contemplated" moving the appellant to a military confinement facility. Travis AFB officials, not named by the trial counsel, even went so far as to calculate the cost of the move. According to the trial counsel, however, those officials eventually concluded that moving the appellant to a facility that obeyed the AFI would be "more of a burden" than leaving her in one that did not; and the appellant remained locked up in the county jails.

United States v. Adcock, 63 M.J. 514, 524 (A.F. Ct. Crim. App. 2006) (Mathews, J., concurring/dissenting) (footnote omitted).

The CAAF Adcock dissent then posits a slippery slope. I find it extremely unlikely that the military justice system will actually slide down this slope, but we will find out, since the Adcock majority has already taken the first step that Judge Stucky predicts will cause the system to careen to the bottom:
[This decision] will encourage servicemembers to spend their time in pretrial confinement poring over service regulations, cataloging every possible discrepancy to raise as a reason for additional confinement credit, even if the actual conditions of confinement are not unduly harsh. At trial, military judges will face protracted litigation concerning the minutiae of confinement programs and whether a particular facility or guard violated some provision of a service regulation. Appellate court dockets will be flooded with pleas that military judges abused their discretion in not granting additional credit. Ultimately, this Court may find itself the de facto supervisor of substantive conditions of confinement involving members of the armed forces -- a function that we are exceedingly ill suited to perform.

I'll bet nothing like that happens. Trial defense counsel will certainly bone up on their respective services' pretrial confinement regs and quiz their clients about whether they have been violated. But, of course, the government has a simple way of avoiding considerable litigation in this area: by following the regs. Regarding the specifics that led to this case, one of three things will happen: (1) Travis Air Force Base will bring itself in compliance with the Air Force Instruction; (2) Travis Air Force Base will continue to choose to violate the AFI; or (3) the Air Force will change the AFI. If the first were to happen, then further litigation will be minimal. If the second were to happen, then military judges can, should, and will award extra confinement credit, meaning that the issue is unlikely to bother the appellate courts very much. Interestingly, JMTG's dissent suggests that when the Army Court issued an earlier ruling similar to Adcock, the Army followed the third route and changed its confinement regulation. See Adcock, 63 M.J. at 528 & 528 n.24 (Mathews, J., concurring/dissenting) (discussing United States v. Herrin, 32 M.J. 983, 986 (A.C.M.R. 1991) and United States v. Quintero, 54 M.J. 562, 567 (A. Ct. Crim. App. 2000)). Shepard's Citations tells us that since the regulation upon which Herrin relied was superseded in 1996, Herrin has been cited precisely twice -- by Quintero, which held that "[t]o the extent that our previous opinion in United States v. Herrin, 32 M.J. 983, relied upon provisions of Army Regulation 190-47 that subsequently have been superseded, it should no longer be followed," and by JMTG's Adcock dissent.

I'll bet that when we Shepardize Adcock in a few years, there will be no sign of the "flood" that Judge Stucky predicts. Let's make a note. On 3 May 2009, let's have a CAAFlog post reporting on the Shepardization of Adcock. Kabul Klipper -- will you write yourself a note on your cave's wall to do that for us?


John O'Connor said...

It's these kinds of cases that drive me crazy. Doesn't the majority's decision basically boil down to this: if there is a service regulation dealing with pretrial confinement procedures, and it gets violated, but there has been no pretrial punishment, a court-martial should step in and grant relief (even though there's no Article 13 violation) because, well, somebody has got to enforce the rules.

Seriously, what if a service had a regulation that said that all pretrial confinees get a cookie with their dinner. And one day the brig stops providing cookies, maybe intentionally, maybe they screwed up and ran out. Why wouldn't Adcock provide that the accused can go into his court-martial and have the military judge at least consider what type of relief ought to obtain for this non-Article 13 violation. Why isn't this simply a request mast or Article 138 complaint?

Why does the pretrial confinee have a ready-made forum, with relief other than just getting the problem fixed prospectively, where the regular old (non-confined) servicemember basically has to request mast if he is denied the cookie he is entitled to in the chow hall?

Anonymous said...

Seriously, what if a service had a regulation that said that all pretrial confinees get a cookie with their dinner. And one day the brig stops providing cookies, maybe intentionally, maybe they screwed up and ran out.

Seriously, CAAF's ruling permits administrative relief under R.C.M. 305(k) where the service regulation violated was designed to protect the rights of presumptively innocent servicemembers. Good luck making that argument about a dinnertime cookie.

What's more, Adcock credit doesn't kick in where "maybe they screwed up;" it takes a knowing and deliberate violation of the service reg.

Can an accused go into his court-martial and have the military judge at least consider what type of relief ought to obtain? Yes, now -- that's the point of the ruling, that the military judge erred by concluding there was no relief available.

John O'Connor said...

If the idea is that CAAF is protecting the rights of presumptively innocent servicemembers, what is the justification for limiting the relief to knowing and intentional violations of regs? Aren't those rights just as deprived when incompetence or negligence are involved? To me, the whole "intentional" requirement shows how unprincipled the majority's analysis is.

Anonymous, I think you're reading of the implications of the Adcock case is more or less correct, which is why the case drives me crazy.

Dwight Sullivan said...

JO'C, providing remedies for "intentional" violations may not be indicative of lack of principle, but rather an attempt to vindicate a different principle. If CAAF's goal is to promote compliance with the service regs, then it makes sense to provide relief for intentional violations but not necessarily unintentional ones. As I've indicated before, personally I'm not a huge fan of rewarding the wrongdoer to deter government evil. So, as I've mentioned, I think the Fourth Amendment exclusionary rule is fundamentally misguided. I would rather see the government bad actor punished than the defendant rewarded. But I don't think that those who advocate for the exclusionary rule to deter government misconduct are unprincipled.

Guert Gansevoort said...

Housing pretrial prisoners with adjudged prisoners has been a violation of the Uniform Code since its inception. See e.g., United States v. Bayhand, 21 C.M.R. 84 (C.M.A. 1956). It would appear that the commanding general of Travis Air Force base was reading from the Marinecorpsnomicron, a.k.a. how to illegally punish servicemembers and get away with it. Step one, close your base confinement facility and sign a MOU with a nasty county jail (NCJ) without insisting upon compliance with well-established law and regulations. Step two, place officers who use cocaine in NCJ along side convicted felons - real ones, not just servicemembers who have committed adultery or mouthed off to their superiors. Anyone care to take odds that 1LT Adcock was the only cocaine user in held by the county pre or post-trial? Step three, claim that you were powerless to do anything about the situation to the nearest military judge.

As the majority notes, the Air Force Regulations at issue "reflect long-standing concern for the prevention of pre-trial punishment and the protection of servicemembers rights." Slip op. at 18. I don't like the C.A.A.F. expanding its jurisdiction any more than JOC, but I do like when it upholds longstanding precedent regarding pretrial punishment and protects the rights of servicemembers.

The dissent is a bit too silly for my tastes. Soon the "Court will find itself the defacto supervisor of substantive conditions of confinement involving members of the armed forces-a function that we are exceedingly ill suited to perform." WHAT!? I know these judges are new, but have they read ANY of the Court's decisions where the Court has supervised conditions of confinement in the past fifty-six years? See e.g., United States v. Crawford, 62 M.J. 411 (C.A.A.F. 2006); United States v. King, 61 M.J. 225 (C.A.A.F. 2005); United States v. Inong, 58 M.J. 460 (C.A.A.F. 2003); United States v. Fricke, 53 M.J. 149 (C.A.A.F. 2000); McCarthy, Palmiter, etc., etc., etc. And even if this brave new world were both brave and new, with the Court's docket headed for roughly fifteen cases next year, what else are they going to do.

As for cookie litigation and fears of hydrogen filled airships attacking London, the majority makes clear that its holding is limited to the facts of this case and the co-mingling issue that has always been verboten. Only a former air force CCA judge would believe that the air force regulations section at the well stocked law libraries at all of the NCJs utilized by the air force will soon be mobbed with pretrial confinenees hoping to find minor discrepancies about the thread count disparity of their egyptian cotton sheets.

John O'Connor said...

Well, CAAFLOg, by unprincipled, I didn't mean to convey "dishonest." And you basically prove my point, which (in response to "anonymous") is that the purpose of the majority's rationale can't be vindicating the rights of presumptively innocent servicemembers because the intentional/unintentional dichotomy would make no sense. So this new rule can't be passed off as a rule to vindicate rights of pretrial detainees generally.

I think you're right that the real motivation is to force the services to comply with their own regulations, which is just the sort of roving commission stuff that I personally despise.

Guert, that stream of consciousness rant is why soem of us love you here. I do disagree with your notion that this is a case about addressing the problem of unlawful pretrial punishment, as the case is premised on their being no unlawful pretrial punishment here. Nobody disturbed the trial court's ruling in that regard.

Anonymous said...

John, the service secretaries are tasked under R.C.M. 304(f) with establishing regulations that protect the rights of presumptively innocent servicemembers. SecAF did that with AFI 31-205.

The problem is what to do when the local base officials ignore such regs. The facts in Adcock were pretty bad for the government -- they knew they were violating the reg, but did it anyway -- so you either slap them down, as CAAF did, or judicially sign off on the base commander's right to violate the detainee's rights right up to the point where in annoys someone higher up on the food chain.

Should an accused receive Adcock credit when the violation is less flagrant? Maybe. It depends on whether you want to institute a strict liability regime or allow some gradation based on the intent of the offending official. CAAF looks at intent in the context of Article 13 complaints; it looks like they'll do so as well when looking at abuse of discretion under R.C.M. 305(k).

John O'Connor said...

I agree with your reading of the case, anonymous. I still despise it as a judicial usurpation not inconsistent with CAAF's prior forays into roving commission mode. One reason I wish the Supremes took more cases is that their conception of CAAF's proper jurisdiction and role in the military justice system generally mirrors mine, while CAAF's conception of its proper role is far broader.

Guert Gansevoort said...

I do not agree that the Court agreed that there was not a violation of Article 13. Rather, the Court dodged the question of whether this was an Article 13 violation, saying that it was not necessary for the resolution of this case. Instead it relied upon regulations, which relied upon R.C.M. 305(k), which relied upon Article 13. Article 13 does not just deal with intentional punishment. That is only the first of two prongs. Servicemembers who have have been accused, but not convicted of crimes, should not be co-mingled, should not be made to break rocks, and should not have their pay stopped like convicted servicemembers. But see, United States v. Fischer, 62 M.J. 319 (C.A.A.F. 2005). As for eating lesser cookies, they will have to take those cases to the court of federal claims.