Saturday, May 19, 2007

CGCCA creates massive service split

In its new opinion in United States v. Bridges, __ M.J. ___, Docket No. 1233 (C.G. Ct. Crim App. May 18, 2007), the Coast Guard Court creates a split with the Navy-Marine Corps and Army CCAs.

The issue in Bridges concerns the introduction of uncharged misconduct while Bridges was confined in the brig in "rebuttal" to a mitigation letter from his father during the sentencing hearing. A two-judge majority of the panel holds that the evidence was properly admitted and specifically rejects the Army Court's holding in United States v. Henson, 58 M.J. 529 (A. Ct. Crim. App. 2003), and the Navy-Marine Corps Court's holding in United States v. Lowe, 56 M.J. 914 (N-M. Ct. Crim. App. 2002).

The Coast Guard Court reasons that "the prohibition of M.R.E. 404(b) do[es] not obviously apply after the accused has been convicted, since there is no longer a danger of conviction on the basis of prior misdeeds . . . ." The Coast Guard Court criticizes Henson for "leap[ing] from the pre-findings context . . . to the presentencing context without explanation."

The Coast Guard Court is just as dismissive of Lowe: "United States v. Lowe, 56 M.J. 914 (N.M.Ct.Crim.App. 2002), supports Appellant, but we find it no more persuasive than Henson in that it misapplies United States v. Wingart, 27 M.J. 128 (C.M.A. 1988)."

Judge Felicetti writes separately in Bridges and concludes that the evidence of appellant's misconduct in the brig was erroneously admitted. But he concurs in the result, finding that the error was harmless.

As both the majority and concurring opinions suggest, the prejudice prong is difficult for the defense to meet in this case. In deciding when to exercise its discretionary jurisdiction, CAAF usually gives great weight to whether the supp suggests that the assigned error actually prejudiced the defense. One wonders whether CAAF will nevertheless grant review in Bridges (assuming Bridges petitions for a grant of review) to resolve the service split that the Coast Guard Court's opinion prominently highlights. Given the recent paucity of grants, at least it would provide an interesting hour of oral argument next term.


Guert Gansevoort said...
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Guert Gansevoort said...

This opinion is troubling. Why does the CGCCA believe that prior bad acts can only inflame the finder of fact during findings? What is it about the sentencing phase of trial that transforms irrelevant specific instances of misconduct into really good rebuttal evidence? And why is the C.A.A.F.'s holding in Pruitt any less applicable to sentencing? "If court members learn of bad character, they are more likely to convict on the basis of prior misdeeds than on the facts of the case." Pruitt, 46 M.J. at 150. I am willing to wager that the C.A.A.F.'s decision in Bridges will say, "If court members learn of bad character, they are more likely to punish the hell of someone for their prior misdeeds than on the facts of the case." If Bridges is willing, I think it is a safe bet that there will be at least one oral argument next fall.

John O'Connor said...

Guert, your suggestion that "[i]f court members learn of bad character, they are more likely to punish the hell of someone for their prior misdeeds than on the facts of the case" doesn't make much sense to me. Doesn't sentencinf necessarily look at acts other than the crime committed? Otherwise, there would be no sentencing proceedings; sentencing would occur just based on the findings or the providence inquiry.

I think 404(b) pretty clearly doesn't apply by its terms because that rule only says bad acts can't be used to prove conformity therewith. That's not why other bad acts will come up in sentencing. To me, it's strictly a relevance/403 inquiry.

I agree this is a case that probably merits review by CAAF, simply because the CG court didn't try to distinguish cases from its sister courts, but expressly rejected sister court precedent. That said, this decision really is fairly narrow in scope in that it depends on what the defense tries to offer in mitigation and determines relevance based on that. But resolving the 404(b) issue probably makes sense as a threshold matter.

Guert Gansevoort said...

If the Cour de Cassation on E Street should happen upon this case, it will not need to resolve this debate on 404(b). It need only follow R.C.M. 1001(b)(4). Evidence of uncharged misconduct is not admissible during sentencing unless it constitutes aggravating circumstances directly relating to or resulting from the offense of which the accused has been found guilty. United States v. Wingart, 27 M.J. 128, 136 (C.M.A. 1988). In Wingart, the Court held that evidence that may have been admissible for a limited purpose on findings under 404(b) was not admissible on sentencing where the “introduction of such evidence accomplishes little more than to inflict a gratuitous injury on the accused.” Id.

In this case involving drug use, breaking restriction, and insubordination to a petty officer, how does Bridges’ naughty conduct in the brig directly relate to or result from his prior drug use? Admittedly, LT McWilliams exposed his client to rebuttal evidence by putting into evidence the letter of Bridges’ father stating that the younger Bridges had learned from his mistakes. But, unless the government’s “rebuttal” letter indicated that Bridges had escaped from confinement and was caught smoking crack in the presence of a petty officer who was ordering him not to do so, LT McWilliams’ objection should have been sustained.

Chief Judge McClelland is about to be K-Diced by the C.A.A.F. Perhaps CJW will buy him a beer and welcome him to the club. See e.g. United States v. Cabrera-Frattini, __ M.J.__ (C.A.A.F. 2007)(see my earlier post where I call how this one will turn out); United States v. Lewis, 61 M.J. 512 (N-M. Ct. Crim. App. 2005)(had there been a CAAFlog in 2005, I would have called this one too).

John O'Connor said...

By the way, I have to say I like the way the court's opinion lists out the TC, DC, MJ, and appellate counsel at the beginning.