Saturday, June 30, 2007

Avoiding entangling alliances

Thomas Jefferson's first inaugural address called for "peace, commerce, and honest friendship with all nations, entangling alliances with none." During its inaugural term, CAAF's new five-judge court heeded that message.

I took out my stubby pencil today and crunched some numbers arising from the 35 cases that the five-judge court decided this term (with the realization that CAAF may or may not also decide Wilson, No. 06-0870/AR, this term). The population of cases is an extremely small data set, so be cautious in interpreting the numbers. But whatever its worth, here's what I found.

17 of the 35 cases were unanimous with no separate opinion filed. Every judge on the court wrote either three (CJE, JSS, JMR) or four (JJB, JCE) such opinions.

That leaves 18 cases in which at least one judge wrote separately. In 7 of those 18, one or two judges wrote separately concurring or concurring in the result. In the other 11 cases, one or two judges dissented.

Four cases were decided by a 3-2 vote (Shaw, Key, Thomas, Adcock). These four cases reveal no pattern -- every judge was in the majority in a 3-2 opinion at least once, and every judge was in the minority in a 3-2 opinion at least once. No two 3-2 opinions featured the same line-up. (JCE and JJB were both on the winning side of three of the four 3-2 opinions, CJE two of four, and JMR one of four.)

The most prolific separate opinion writing was CJE with eight, five of which were dissents. (CJE also joined in JMR's concurring/dissenting opinion in Key). JMR was next with five, three of which were dissents. (JMR also joined in JSS's Adcock dissent). Then JJB with four, two of which were dissents. (JJB also joined in JSS's separate concurrence in Erickson). Both JCE and JSS authored three separate opinions, though JCE joined CJE's Shaw dissent while JSS joined no other separate opinion. Only one of the three separate opinions JCE authored was a dissent, while two of JSS's separate opinions were dissents.

So during the five-judge court's first partial term, no voting block has emerged. Rather, each judge seems to be following his or her individual jurisprudential path -- and avoiding entangling alliances.

CAAF takes June for granted

Friday's daily journal update included three more grants -- two Navy and one Army.

United States v. Townsend, __ M.J. ___, No. 07-0229/NA (C.A.A.F. June 28, 2007), continues CAAF's recent fascination with member challenge issues. See, e.g., United States v. Albaaj, __ M.J. ___, No. 07-0002/AR (C.A.A.F. June 21, 2007); United States v. Hollings, 65 M.J. 116 (C.A.A.F. 2007); United States v. Terry, 64 M.J. 295 (C.A.A.F. 2007); United States v. Briggs, 64 M.J. 285 (C.A.A.F. 2007); United States v. Clay, 64 M.J. 274 (C.A.A.F. 2007). The granted issue in Townsend is:


One interesting sidelight in Townsend is that the military judge in the case was Captain Rolph, now the Chief Judge of NMCCA. See United States v. Townsend, No. NMCCA 200501197, slip op. at 1 (Jan. 12, 2007).

The second granted case is United States v. Wright, __ M.J. ___, No. 07-0412/AR (C.A.A.F. June 28, 2007). This issue there is:


The issue sounds reminiscent of ACCA's awful opinion in United States v. Stokes, __ M.J. ___, No. ARMY 20041348 (A. Ct. Crim. App. June 11, 2007), in which it affirmed a finding of guilty to a larceny of military property offense to which the accused had pled guilty, despite ACCA's acknowledgement that the plea was based on a factually untrue assumption. But I can't find an electronic trace of ACCA's opinion in Wright, so I am not sure of the factual scenario that led to the issue.

Finally, United States v. Bolsins, __ M.J. ___, No. 07-0553/NA (C.A.A.F. June 28, 2007), is another Medina trailer. See United States v. Medina, __ M.J. ___, No. 07-0096/AR (C.A.A.F. Apr. 27, 2007) (order). We previously discussed Medina and its trailers here, here, and here. Here's the issue in Bolsins, so the No Man can drool his Pavlovian saliva on his keyboard yet again:


Unlike with the previous two Medina trailers -- Frank and Donnelly -- CAAF ordered briefing in Bolsins. It isn't apparent to me why CAAF wanted briefs filed in this case but not the previous two.

In Bolsins, the accused was charged with, among other offenses, violating a Hawaii statute requiring parents to seek medical attention for their children -- apparently under a FACA theory. See United States v. Bolsins, No. NMCCA 200602408 (N-M. Ct. Crim. App. March 15, 2007). (Bolsins' other five offenses are what required the medical attention for his infant son.) As NMCCA explains: "The specification does not contain the assimilative language, nor does it contain the required elements of criminality from the Hawaiian statute. Missing also is any reference to whether the situs of the offense was an area over which the United States had either exclusive or concurrent jurisdiction." Id., slip op. at 2. I guess if I lived in Hawaii, I'd have better things to do than looking up the correct form for 134(3) offenses as well. But not to worry; the military judge and NMCCA together save the TC from the natural consequences of his "hang loose" attitude:
[T]he military judge informed the appellant that he was going to inquire into the terminal Article 134, UCMJ, offense, even though it was not a part of the Hawaii Revised Statute. The military judge stated the additional element and then provided definitions for both service discrediting conduct and conduct prejudicial to good order and discipline. Thereafter, the military judge elicited facts from the appellant indicating that the appellant believed that his failure to seek medical care for his son was service discrediting. Therefore, with regard to Charge II and its sole specification, we affirm a finding of guilty to the lesser included offense, as stated in the specification, under Clause 2 of Article 134, UCMJ.

Id., slip op. at 3.

There is another curiosity about the Bolsins opinion. NMCCA purports to reasess the sentence under "the principals [sic] set forth in United States v. Cook, 48 M.J. 434, 438 (C.A.A.F. 1998) and United States v. Sales, 22 M.J. 305, 307-09 (C.M.A. 1986)." Id., slip op. at 4. But NMCCA then applied merely the standard for determining sentence appropriateness under Article 66 and NOT the standard for reassessing a sentence. The court wrote: "We find that the sentence continues to be appropriate for the offenses and the offender and affirm the sentence as approved by the convening authority." Nowhere does NMCCA perform the required analysis of whether the original sentence was no greater than that which the military judge would have imposed absent the error.

As CAAF explained in its oft-cited Peoples opinion, sentence reassessment is a "two-step process: first determining what sentence the military judge would have adjudged without [the error] and thereafter deciding . . . what sentence was 'appropriate.'" United States v. Peoples, 29 M.J. 426, 428 (C.M.A. 1990). In this case, NMCCA skipped that first step. CAAF has remanded other cases where a CCA committed this very error. See, e.g., United States v. Richardson, 62 M.J. 323 (C.A.A.F. 2005) (summary disposition). One wonders whether, whatever CAAF's resolution of the Apprendi issue, it will sua sponte remand Bolsins to NMCCA for a proper Sales analysis.

Thursday, June 28, 2007

Interesting case note

I must confess that the Federal Circuit Bar Journal isn't on my regular reading list. But the "Cases and Recent Developments" section of the most recent issue includes a particularly interesting case note about a collateral review of a court-martial conviction -- Ragard v. United States, 439 F.3d 1378 (Fed. Cir. 2006). See 16 Fed. Cir. B.J. 133, 186-88 (2006/2007).

In Ragard, an Army captain's case was handled by the D.C. Corporation Counsel's office and was put in a pretrial diversion program. The Army then decided to prosecute Captain Ragard for offenses arising from the same misconduct. Ragard challenged the prosecution on double jeopardy grounds and, essentially, estoppel. The Federal Circuit ruled that Ragard had abandoned the double jeopardy claim, but reviewed the merits of the estoppel argument. The court held that no contact between Ragard and the federal government barred his court-martial prosecution. The court drew a distinction between prosecutions on behalf of the District of Columbia by the Corporation Counsel's office and prosecutions on behalf of the United States by the U.S. Attorney's office. The Supremes later denied cert in the case. Ragard v. United States, 127 S. Ct. 109 (2006).

NMCCA updates its online opinions

Do you want to know how long it had been since NMCCA had posted an opinion online before today? When NMCCA posted its last opinion, Paris Hilton hadn't even begun to serve her jail sentence, so fortunately her little bout of incarceration didn't force her to fall behind in her naval justice reading.

NMCCA's update today includes 15 new opinions, though none published.

Reloading the docket cont': chambering one more case

On Tuesday, CAAF granted review and ordered briefing in an Army case:


United States v. Glenn, __ M.J. ___, No. 07-0407/AR (C.A.A.F. June 26, 2007).

There is no electronic trace of the opinion below, suggesting that ACCA blew off the issue in a one-liner.

Wednesday, June 27, 2007

JAA web site is UA

Please go to CAAF's "other web sites" link on its home page. Now go down to "Miscellaneous" and click on the Judge Advocates Association link. You will get a web page with the title: "jaa homes for sale apartments at" If you go to the bottom of the page and click on "Why AM I Seeing This Web Site?", an Outlook e-mail will open with the title, "Inquiring about the domain, with status: Expired." What the heck has happened to the JAA web site?

Tuesday, June 26, 2007

Resource alert

The Fall 2006 issue of the Military Law Review has been posted on TJAGLCS's web site. My article providing an analysis of the current military death penalty system's actual operation is here.

SCOTUS clean sweep

In today's order list, the Supremes denied cert in Banker, No. 06-1544, and Cossio, No. 06-1568. That completes the military cert denial process for this term. Today not a single military cert petition is pending before the Supremes, which has already denied all 20 cert petitions filed this term seeking a writ of certiorari to CAAF. All of the cert petitions were filed by either defense counsel or the accused pro se; the SG filed no cert petitions seeking a writ of certiorari to CAAF.

So no Golden CAAF Award this term, Klipper.

Sunday, June 24, 2007

Guest commentator John Economidy on U.S. v. Sanchez

Chief Judge Effron correctly assessed the situation about San Antonio's Dr. Nancy Kellogg's "expert" testimony in U.S. v. Sanchez.

Her typical testimony is that she confirms child sexual abuse in a normal examination because the child said she was abused. This type of testimony has repeatedly been held inadmissible.

* United States v. Charley, 176 F.3d 1265 (10th Cir. 1999).
* Salinas v. State, 166 S.W.3d 368, 371 (Tex. App.—Fort Worth 2005).

San Antonio civilian criminal defense attorneys have assembled substantial files and transcripts on Dr. Kellogg, and JAGs facing her in a GCM should seek those files.

John Economidy
San Antonio, Texas

Saturday, June 23, 2007

Reloading the docket

On Thursday and Friday, CAAF issued a total of 14 opinions. To fill some of the vacant space on its docket, on Wednesday CAAF granted review of two cases, both from the Air Force. This issues in United States v. Freeman, No. 06-0833/AF are:




The grant in Freeman came a year and a week after the Air Force Court issued its unpublished opinion. United States v. Freeman, No. ACM 35822 (A.F. Ct. Crim. App. June 13, 2006).

The issue in United States v. Cucuzzella, No. 07-0397/AF, is:


In sharp contrast to Freeman, CAAF granted review in Cucuzzella just less than five months after the Air Force Court's opinion. United States v. Cucuzzella, 64 M.J. 580 (A.F. Ct. Crim. App. 2007). And, yes, since I know you are wondering, Cucuzzella was a Judge Mathews the Great opinion. We previously discussed Cucuzzella here.

Let's do the term warp again!

As Sacramentum notes in a recent post on his/her blog, CAAF's daily journal has announced a shift in the CAAF term. Starting in 2008, the CAAF term will run 1 September through 31 August rather than 1 October through 30 September. Order in re Term of Court, __ M.J. ___ (C.A.A.F. June 21, 2007). Does anyone know why?

CAAF Box Score

Since Judges Stucky and Ryan joined the court, CAAF has heard oral argument in 36 cases. It has now decided 35 of them. The only case in which CAAF has heard oral argument this term in which it has not released its opinion is United States v. Wilson, 06-0870/AR, which was argued on 30 April. The originally granted issue in Wilson was:

As we previously discussed, shortly after hearing the oral argument in Wilson, CAAF ordered briefing on the following issue:


CAAF also invited all of the other appellate government and defense divisions to weigh in with amicus briefs.

It isn't apparent whether CAAF will decide Wilson this term or hold the case over for reargument next term. Perhaps CAAF has now finished its work for the 2007 term. Or perhaps it will issue a ruling in Wilson once all of the briefs have been submitted.

Here are the box scores for the 35 opinions issued by the newly constituted five-judge court:

Chief Judge Effron: 6
Judge Baker: 8
Judge Erdmann: 8
Judge Stucky: 6
Judge Ryan: 7

After the 8-course CAAFeteria meal, an ACCA dessert

ACCA released two published opinions on Friday. In United States v. Christy, __ M.J. ___, No. ARMY 20050291 (A. Ct. Crim. App. June 22, 2007), ACCA "address[e] what appears to be a matter of first impression before this court": "whether appellant's use of LimeWire peer-to-peer file-sharing software to search for and download child pornography files from other LimeWire users, while allowing other users to search for and download child pornography from him, constitutes 'distribution' of child pornography." Id., slip op. at 2. ACCA's unsurprising answer is, Yes. "We hold that 'sharing' child pornography files using peer-to-peer file-sharing software constitutes 'distribution' of child pornography within the meaning of 18 U.S.C. § 2252A(a)(2), and affirm the findings of guilty and the sentence." Id. This issue calls to mind Judge Baker's timely observation from Friday's Leedy opinion that "[c]hild pornography is not new, but its proliferation on the Internet is a recent phenomenon raising new, and in some cases challenging, questions of law." United States v. Leedy, __ M.J. ___, No. 06-0567/AF, slip op. at 21 (C.A.A.F. June 22, 2007).

ACCA's other Friday opinion is weird. ACCA goes out of its way to raise an issue, not grant relief, sua sponte reconsider that issue, still not grant relief, but publish the resulting five page opinion. Why? United States v. Moralez, __ M.J. ___, No. Army 20060123 (A. Ct. Crim. App. June 22, 2007), focuses on "a common and recurring problem in the Army: misinterpretation of the rules governing deferment and waiver of forfeitures." Id., slip op. at 2. The point of the opinion is to emphasize that "all parties in the court-martial process must understand deferment and waiver concepts and how to apply them in different factual settings. Although we affirm the findings of guilty and the sentence in appellant's case, we write to reinforce military justice practitioners' professional responsibility to recognize and properly apply Congressionally-created deferment and waiver rules on a case-by-case basis." Id.

Here's a question. I'm honestly not trying to suggest an answer; I'm just asking: is that a proper purpose for a judicial opinion? Or should the Moralez opinion have been a "View from the Bench" Army Lawyer piece instead? What do you all think?

A sad case

In United States v. Harrow, __ No. 06-0474/AF (C.A.A.F. June 22, 2007), Airman Basic Harrow was found guilty of killing her infant daughter.

Judge Ryan's majority opinion first lays out the facts demonstrating that that daughter was likely killed as the result of injuries suffered when Harrow threw her against a wall. The opinion then examines a number of issues, most significantly limitations on the defense's attempts to impeach an alternate suspect and government witness with prior inconsistent statements, 404(b) evidence introduced against Harrow, and two pieces of profile evidence dealing with perpetrators of child abuse offenses. CAAF concluded that: (1) the limitations placed on the use of the prior inconsistent statements were error but harmless; (2) the use of the 404(b) evidence was harmless, obviating the need to rule on whether it was erroneously admitted; and (3) profile evidence concerning perpetrators was erroneous but harmless.

Chief Judge Effron authored a short concurring opinion expressing some reservations concerning the prior inconsistent statement and 404(b) reasoning, but agreeing that any error was harmless.

Friday, June 22, 2007

The case of the "recently hirsute Appellant"

Here is the principal issue that came to my mind upon reading Judge Baker's majority opinion in United States v. Moran, __ M.J. ___, No. 06-0207/AF (C.A.A.F. June 22, 2007). Had the word "hirsute" ever appeared in a published military appellate decision before?

Here's why that rather odd question came to mind. Moran was charged with using a pharmacy shelf's worth of controlled substances. OSI agents wanted to collect hair samples. One OSI agent took the stand and, without defense objection, testified that Moran refused to give consent to OSI collecting a body hair sample. Another OSI agent then testified about Moran going to meet with his civilian defense counsel. Then came the most entertaining part of the opinion. When OSI finally obtained authorization to seize a sample of Moran's body hair, Moran no longer had any. He had been shaved clean. This little colloquy then occurred between the OSI agent and the military judge (the military judge!):
MJ: What was Airman Moran's explanation for shaving all of his hair off? Did you ask him? Did he give you one?
[RF:] No, sir, I didn't.
MJ: You didn't inquire?
[RF:] The reason I didn't inquire was I felt that was an incriminating question, and I would have to advise him of his rights. He'd already asked for counsel. I was just there to obtain a hair sample due to the search authorization, and not
to ask him questions.

This led to CAAF's classic observation:
Officer RF's knowledge of Appellant having already secured a lawyer was not necessarily presented as evidence of guilt by Officer RF, but rather was made in direct response to the military judge's inquiry as to the agent's omission of what seemed an obvious and necessary question: asking the recently hirsute Appellant why he no longer had any hair.

Moran, slip op. at 14.

And, yes, in case you're keeping score at home, "hirsute" had been used in two previous military justice appellate decisions. United States v. Johnson, 6 M.J. 936, 937 (A.C.M.R. 1979); United States v. Flesher, 37 C.M.R. 669, 673 (A.B.R. 1967).

But ultimately CAAF concluded that these and other references to Moran's invocation of various constitutional rights were, if error, harmless beyond a reasonable doubt. (CAAF held that the TC's characterization of Moran's refusal to provide a hair sample and desire to speak to an attorney first as "some of the most damning evidence" was certainly error, but harmless as well.)

Judge Erdmann and Chief Judge Effron wrote separately to opt out of certain portions of the majority opinion that each thought were unnecessary to the final result.

So Moran's appeal failed to shave any time off of his confinement.

You make the call

Do you remember those, "You make the call" promos, where some arcane baseball play is presented and you are supposed to identify what the umpire is supposed to do? Well here is the CAAF equivalent. Judge Erdmann's concurring opinion in United States v. Leedy, __ M.J. ___, No. 06-0567/AF (C.A.A.F. June 22, 2007), offers these facts:

Leedy's roommate, Winkler, informed SA Spring that Leedy's computer was positioned in such a way as to preclude others from directly observing his monitor; Leedy told Winkler that he downloads files from the internet; and Winkler observed the play list on Leedy's Windows' Media Player and believed several titles described pornographic files. Two file titles were named in the affidavit, "three black guys and one white girl" and "14 year old Philipino girl."

Is there probable cause to authorize a search? You make the call!

Judge Erdmann said no; a four-judge majority, in an opinion written by Judge Baker, said yes. Judge Baker's opinion included this insightful observation:

Case law is evolving as is our understanding of child pornography. Child pornography is not new, but its proliferation on the Internet is a recent phenomenon raising new, and in some cases challenging, questions of law. The Supreme Court has repeatedly directed reviewing courts to apply common sense and practical considerations in reviewing probable cause determinations. In that context, a different legal picture emerges. In an earlier era an investigator, magistrate, or court might not have thought a file titled "14 year old Filipino girl" warranted investigation, even when surrounded by titles suggesting graphic pornography. Today, applying our own common sense understanding, informed as it is by recent years
which have seen many cases of child pornography, with the facts of such cases increasingly involving computers and digital files, we conclude that the gloss SA Spring applied to Appellant's file titles was well founded. There is more than a fair probability that a list of files referencing sex acts that also includes a file referencing a fourteen-year-old child will result in the discovery of child pornography.

I agree with the majority on this one, but in the final analysis the division between Judge Erdmann and the majority wouldn't have affected the case's outcome. Judge Erdmann would have admitted the search's results under the good faith exception in any event.

A plot twist

From United States v. Erickson, __ M.J. ___, No. 06-0715 (C.A.A.F. June 22, 2007):

We granted review in this case to determine whether trial counsel committed plain error during his sentencing argument by comparing Erickson to Hitler, Saddam Hussein, and Osama bin Laden, and describing him as a demon belonging in hell. We conclude that Erickson has failed to establish plain error and therefore affirm the decision of the Court of Criminal Appeals.

Id., slip op. at 2-3.

You know, after that first sentence, I really wasn't expecting the second one.

The defense didn't object at trial. CAAF treated the Air Force Court's conclusion that the TC's argument constituted plain and obvious error as law of the case. See United States v. Erickson, 63 M.J. 504, 509-10 (A.F. Ct. Crim. App. 2006). But CAAF also held that the improper argument did not prejudice the defense.

In explaining the court's rationale, Judge Erdmann noted: "Here, the improper comments amounted to less than a single page out of trial counsel's twenty-two page sentencing argument." Erickson, slip op. at 7. A 22-page government sentencing argument in a judge-alone case? Maybe that's why the military judge sentenced Erickson to confinement for life with eligibility for parole rather than LWOP.

Judge Stucky, joined by Judge Baker, issued a separate opinion to take issue with a portion of the majority's rationale. They argue:
In a judge-alone case like this one, curative measures are superfluous because the military judge is presumed to know and apply the law correctly. United States v. Rodriguez, 60 M.J. 87, 90 (C.A.A.F. 2004). The facts of this case are fortuitous in that the improper conduct is balanced by overwhelming evidence supporting conviction. As such, curative measures are unnecessary under the Fletcher rubric. However, when this Court considers a future case in which trial counsel's egregious conduct is balanced against evidence of guilt of less than overwhelming weight, a Fletcher analysis would seem to require the military judge in that case to impose significant curative measures on himself to counterbalance the improper argument. This could not only lead to an absurd result, but also would contradict the principle that the military judge is presumed to
know and apply the law correctly.

This rationale misses the mark a bit because the issue in this case concerned the sentencing argument. The strength of the evidence supporting conviction is irrelevant.

But even if the separate opinion had identified the proper context in attacking the notion of curative measures in a bench trial, Judge Erdmann's majority opinion specifies what such "curative measures" would be in a judge alone case. "While not the case here, if a defendant introduced evidence to rebut the presumption [that the military judge knows and follows the law], we would then consider whether the military judge undertook 'curative measures,' such as a clear statement on the record that he would not consider the improper comments." Erickson, slip op. at 9 n.2. That seems to be a very efficient rule -- if the military judge spots improper argument and mentally excludes it from the sentencing calculation, the military judge should say so on the record so everyone will know. Had the military judge done so in this case, there would have been no need for the Air Force Court or CAAF to wrestle with this issue.

Freddy Kruger makes a rare appearance in military case law

Following the shocking sight of CAAF holding that NMCCA was too defendant-friendly in Cabrera-Frattini and CAAF's use of Jackson v. Virginia to actually provide relief in Resch, everything returns to normal as CAAF applies Jackson v. Virginia to affirm a communicating a threat conviction in United States v. Brown, __ M.J. ____, No. 06-0857/AF (C.A.A.F. June 22, 2007).

The relevant statement in Brown was Senior Airman Brown's announcement to his girlfriend that if her son weren't present, then she would be dead. Since her son was there, was that a contingent threat that wasn't satisfied, thus negating the threat? In a unanimous opinion written by Judge Baker, CAAF says no. Judge Baker offers some vivid imagery along the way, like the crazed axe-wielder in a bar or the small child who "approach[es] a putative victim and coldly stare[s] her down while solemnly stating that he was going to kill her within the next five minutes." Id., slip op. at 11-12. But here's the essence of the requirement for communicating a threat post-Brown:
[E]xamination of threats under Article 134, UCMJ, must pay due regard to any concretely expressed contingency associated with a threat, while remaining aware that all communication takes place within a context that can be determinative of meaning. See, e.g., Cotton, 40 M.J. at 95 ("[b]oth the circumstances of the utterance and the literal language must be considered"); United States v. Gilluly, 13 C.M.A. 458, 461, 32 C.M.R. 458, 461 (1963) ("the surrounding circumstances may so belie or contradict the language of [a seemingly threatening] declaration as to reveal it to be a mere jest or idle banter"). We reaffirm this long-standing principle today. Context gives meaning to literal statements.

Brown, slip op. at 10-11.

So those of you who like to post angry comments on blogs -- and, Klipper, you know who you are -- please put down the axe before typing.

Resch judicata

In United States v. Resch, __ M.J. ___, No. 06-0863/AR (C.A.A.F. June 22, 2007), CAAF considers whether the military judge improperly considered the providence inquiry and a stipulation supporting Resch's guilty plea to UA in resolving the contested offense of desertion. In a highly fact-driven opinion, Judge Baker and three of his colleagues say yes. Judge Stucky says no, relying on both indications that the accused had authorized such use and the defense's invitation to the military judge to use them on the contested offense, thus implicating the invited error doctrine.

Most interesting to me is that the majority actually relies on Jackson v. Virginia, 443 U.S. 307, 319 (1979), to hold that the evidence was legally insufficient to support an extended termination date for the UA. As soon as I have the chance, I will do a multi-year review of CAAF's handling of legal insufficiency issues.

Confronting confrontation in Cabrera-Frattini

United States v. Cabrera-Frattini, __ M.J. ___, No. 07-5001 (C.A.A.F. June 22, 2007), is a straightforward opinion.

The military judge decided that a 12-year-old girl (TO) was unavailable where:

(a)the government subpoenaed TO and her mother, issued their travel orders and made arrangements to fly them to Parris Island; (b) TO's hospitalization prevented her from complying with the subpoena; (c) TO had two significant psychiatric illnesses -- bipolar II disorder and post-traumatic stress disorder; (d) TO was taking Seroquel, a brain protectant and antipsychotic drug, and Tegretol, a mood stabilizer; (e) it "would be detrimental to TO's mental and physical health now and in the foreseeable future to testify at this court-martial or any hearing regarding the charges that were before the court"; and (f) "[a]ny court appearance would re-traumatize [TO] and would worsen her mental and physical health to include her possible suicide".

Id., slip op. at 14.

On what must have been a remarkably frigid August day in hell, an NMCCA panel split 2-1 in holding that the military judge erred by ruling that TO was unavailable and set aside the findings and sentence. United States v. Cabrera-Frattini, No. NMCCA 200201665, 2006 CCA LEXIS 218 (N-M. Ct. Crim. App. Aug. 2, 2006).

The Judge Advocate General of the Navy certified the case to CAAF, which today reversed in a unanimous opinion written by Judge Ryan.

But for military justice dweebs -- a group with which I proudly associate myself -- Cabrera-Frattini will forever be known not for the legal principle it establishes, but rather for the incredible coincidence that surrounded its oral argument. As Guert explained:
The case, which involved several Marines having sex with three twelve and thirteen-year-old girls, was scheduled to be heard at Loyola [University School of Law]. The school sent out an email asking if any students wanted to do an amicus brief and argument. One student was particularly interested in the case, but not as much as his classmates. Perhaps by mistake, he forgot to mention his sex with minors conviction when he enrolled. After three semesters of law school, the student has withdrawn from law school and returned to the sweet bliss that is never ending appellate leave.

But the Kabul Klipper had the best line: "By the way, he got meaningful relief at CCA AND they picked his law school for project outreach? This guy obviously lives in some parallel statistical universe. One that subjects its inhabitants to extreme karmic whiplash." And the whip just lashed him again.

I'm tempted to announce a new CAAFlog contest -- provide the recipe for a drink called a "Cabrera-Frattini." But I'm afraid to even imagine what some of you would suggest!

The Key question

In United States v. Key, __ M.J. ___, No. 04-0216/AF (C.A.A.F. June 22, 2007), all five CAAF judges agree that a military judge erred while conducting a DuBay hearing. The purpose of the DuBay hearing was to explore evidence that a government undercover informant had been untruthful when she denied knowing that she might receive reward money for her cooperation. At the DuBay hearing, the defense sought to introduce the testimony of the original trial defense counsel, who would have recounted facts from his interview of the informant. The military judge said no. Wrong, says CAAF. But not reversible, ruled a three-judge majority of Judges Stucky, Baker, and Erdmann. Judge Ryan, joined by Chief Judge Effron, disagreed, setting out the significance of the defense counsel's potential testimony.

The disagreement over prejudice is interesting, but it ultimately affects a universe of one person: Airman First Class Key. While I thought the dissent's argument was more persuasive, the important point for the development of the law is that CAAF established the precedent that the military judge erred by failing to allow the trial defense counsel to take the stand at the DuBay hearing.

Helping CAAFlog: Cabrera-Frattini, an Easy Crawford case, or is it?

I'll help CAAFlog with one, CAAF holds that a life threatening illness is sufficient cause to excuse a witness from trial and admit deposition testimony in Cabrera-Frattini. CAAF unanimously reverses NMCCA and holds that Crawford v. Washington does not bar admission of the deposition testimony because the mental illness of the witness made it impossible for her to safely testify due to the consequences of the testimony on her psyche. Here is the testimony that gets the G over Crawford:

Dr. Bock testified that TO’s mental condition deteriorated significantly after TO gave her deposition. As evidence, Dr. Bock cited TO’s suicide attempt. Its gravity was magnified by
the fact that it was her second attempt. In her sessions with Dr. Bock, TO focused on the issue of testifying at the trial as one of the reasons that she could not go on living, believing it would be better to be dead than to testify. TO’s condition required Dr. Bock to administer antipsychotic and moodstabilizer medications to treat her disorders. Dr. Bock and other practitioners treated TO in the hospital for almost a week. Dr. Bock discharged TO on December 10, 2001. Dr. Bock described TO’s prognosis upon release from hospitalization as “guarded,” noting that TO had “a serious chronic psychiatric disorder.” She did not expect TO’s mood to begin to show signs of stabilizing for at least six to twelve months due to her illness, as that was the time needed for the antipsychotic and mood-stabilizing drugs to have an appreciable effect. Dr. Bock expected a difficult recovery period with a possibility of re-hospitalization. Dr. Bock concluded that it would be detrimental for TO to testify as a witness based upon TO’s demonstrated sychological abnormalities before and during hospitalization.

I am sympathetic to the cause here of admitting a child rape victim's deposition. But does anyone see a potential for mischief when mental illness, not to the level of disqualifying the witness, but, rather, fear of testimony is the basis for overcoming the Confrontation Clause? Maybe not because the facts here are so extreme, but just a thought.

Ten new decisions

CAAF released 8 decisions today and ACCA released two published opinions. I'll see how many I can get through this evening.

Thomas: Now Here is an Apprendi Case

In what I hope to make a regular series, I will take CAAFlog's analysis of a CAAF decision and disagree with as many portions of it as possible, that's how I got the name No Man so I'll stick with it. CAAFlog writes:

The final element of each enumerated Article 134 offense is "That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces." That is ALL that is statutorily required for an Article 134(1) or (2) offense. So in promulgating Part IV's elements for Article 134 offenses, the President isn't "defin[ing] new offenses" at all - rather, he is ADDING elements to the congressional language, not modifying or expanding the congressional language. This really functions as a way to define the particular punishments that may be imposed for the various enumerated offenses, which the President may set under Article 56. . . .

As CAAF's case law clearly holds, it is the courts' role to determine the elements of an Article 112a offense, not the President's.

I could not disagree more, unfortunately the U.S. Supreme Court has sort of spoken on this front, though that may be inconsequential for everyone except Private Loving because the Supreme Court is not binding authority, at least so says CAAF lately. In Loving v. United States, The Supremes said, "Whether or not Article 36 would stand on its own as the source of the delegated power, we hold that Articles 18, 36, and 56 together give clear authority to the President for the promulgation of RCM 1004." In case anyone does not recognize RCM 1004, it contains the aggravating factors required for a capital court-martial to adjudge death.

Now how the heck is this an Apprendi issue you ask? Well, CMA in the decision that essentially led to the Supreme Court's ruling in Loving, stated, "“If ‘aggravating factors’ used in channeling the discretion of the sentencing authority in death cases were elements of the crime, we would have no choice but to hold that they must be set forth by Congress and cannot be prescribed by the President.” United States v. Curtis, 32 M.J. 252, 259-60 (C.M.A. 1991) (citing Walton v. Arizona, 497 U.S. 639 (1990)) (emphasis added), cert. denied, 502 U.S. 952 (1991)). CMA even reiterated it after the Supreme Court's decision, stating, "Neither the aggravating factors nor the Enmund/Tison culpability requirement are elements of the offense. See Walton v. Arizona." Loving v. Hart, 47 M.J. 438, 444-45 (1998). Notice the citation in that statement, Walton v. Arizona. Why is that famous? Because the Supreme Court recently overruled Walton in Ring v. Arizona on Apprendi grounds and found specifically that, "Apprendi’s reasoning is irreconcilable with Walton’s holding in this regard, and today we overrule Walton in relevant part. Capital defendants, no less than non-capital defendants, we conclude, are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment." Combine that with CMA's statements in Loving v. Hart and Curtis, and RCM 1004 violates the separation of powers clause due to Apprendi.

Does that apply to the Manual's construction of Art. 134, probably not because of the issues listed by CAAFlog (OK so we agree here). Does that apply to other articles of the UCMJ? I would say yes. And how do I disagree with CAAFlog? This whole process is not a way to define punishments under the offense, rather the Manual is defining elements as the Supreme Court has repeatedly said, and most recently in Cunningham v. California,

Under California’s DSL, an upper term sentence may be imposed only when the trial judge finds an aggravating circumstance. . . . An element of the charged offense, essential to a jury’s determination of guilt, or admitted in a defendant’s guilty plea, does not qualify as such a circumstance. . . . Instead, aggravating circumstances depend on facts found discretely and solely by the judge. In accord with Blakely, therefore, the middle term prescribed in California’s statutes, not the upper term, is the relevant statutory maximum.

Even for intermediate levels of punishments, if contingent on a finding of fact, those findings of fact are the functional equivalent of elements of an offense. And, applying Curtis and Loving v. Hart's guidance (I know it's not a holding, but they sure were clear on this point), can only be enumerated by Congress (not the President or CAAF), and interpreted by CAAF.

Thursday, June 21, 2007

Answering an unanswered dissent

For almost a quarter century since Congress enacted Article 112a, the military justice system somehow avoided answering the question of whether introduction of a controlled substance onto a military installation requires that the accused actually know that he or she is entering a military base. Yes, says a three judge majority of CAAF. United States v. Thomas, __ M.J. ___, No. 06-0350 (C.A.A.F. June 21, 2007). No, say Judges Baker and Ryan. Personally, I couldn't care less, since the majority tells us that possession is an LIO of introduction and the maximum punishment for the two offenses is the same. So Seaman Recruit Thomas manages to win his appeal without actually winning anything.

But what I do care about in Thomas is the main thrust of Judge Baker's dissent. He relies on the MCM's statement of the elements of the Article 112a offense of wrongful introduction. Judge Baker states:
In the context of the UCMJ, it is well-established that, unless otherwise precluded from doing so, the President can define elements of offenses pursuant to Congress's delegation of authority under Article 36, UCMJ, provided that the exercise of such authority is neither contrary to nor inconsistent with the provisions of the UCMJ.

Baker, J., slip op. at 4 (footnote omitted). No citation to authority follows this statement. But that proposition isn't well-established at all. Consider, for example, this statement by a CAAF majority:
We note that we are not bound by the President's interpretation of the elements of substantive offenses. As we stated in United States v. Mance, 26 M.J. 244, 252 (1988):
While the views of the drafters of the various Manuals in writing the provisions just discussed and those of the President in promulgating them are important, they are not binding on this Court in fulfilling our responsibility to interpret the elements of substantive offenses - at least, those substantive crimes specifically delineated by Congress in Articles 77 through 132 of the Code, 10 USC §§ 877-932, respectively.

United States v. Davis, 47 M.J. 484, 486 (C.A.A.F. 1998); accord United States v. Guess, 48 M.J. 69, 71 (C.A.A.F. 1998).
Davis also rebuts Judge Baker's Article 36 argument: "Article 36(a), UCMJ, 10 USC § 836(a), gives the President express authority to promulgate rules under Parts II and III of the Manual. Part IV of the Manual is not expressly governed by Article 36(a)." Davis, 47 M.J. at 486.

Judge Baker seeks to bolster his argument by pointing to judicial deference to the Manual's recitation of the elements of Article 134 offenses. But military law has long drawn a distinction between judicial primacy in construing the elements of Article 77-132 offenses and judicial deference to the MCM in construing enumerated Article 134 offenses. As a recent ACCA case helpfully explains:
When analyzing the offenses codified by Congress in Articles 77 through 132, UCMJ, the courts have treated the President's analysis as "mere commentary," which is "important" but "not binding." United States v. Watson, 31 M.J. 49, 52 (C.M.A. 1990); United States v. Mance, 26 M.J. 244, 252 (C.M.A. 1988). Where the President's substantive analysis of these articles has deviated or exceeded the statutory language, the courts have declined to follow it where they do not believe it represents the best interpretation of the statute. Maggs, 160 Mil. L. Rev. at 139; see, e.g., United States v. Czeschin, 56 M.J. 346, 349 (C.A.A.F. 2002); Mance, 26 M.J. at 252; United States v. Ferguson, 40 M.J. 823, 828 (N.M.C.M.R. 1994); United States v. Omick, 30 M.J. 1122, 1124 (N.M.C.M.R. 1989). In such cases, the courts have emphasized that "the President does not have power to redefine the elements of punitive articles and thus change substantive criminal law." 8 Maggs, 160 Mil. L. Rev. at 129.

The analysis has been different when courts interpret the elements of offenses arising under the general article, Article 134, UCMJ. The statutory elements of such offenses are (1) that the accused did or failed to do certain acts; and (2) that, under the circumstances, the accused's conduct was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. UCMJ art. 134; United States v. Cherukuri, 53 M.J. 68, 71 (C.A.A.F. 2000). The President has identified fifty-three specific offenses that can fall within the proscribed range of conduct and provided a list of "elements" that the government must prove to obtain a conviction for each of these offenses. MCM, Part IV, para. 61 - 113. The courts have generally accepted the President's explanation of these elements as defining what is required to obtain a conviction for a specified offense under Article 134, UCMJ. 10 Maggs, 160 Mil. L. Rev. at 140. As one commentator has explained:
Article 134 contains such broad language that its enforcement inevitably raises policy questions. The courts have respected the separation of powers by not undertaking to answer these questions themselves. Instead, they have deferred to the President who, as Commander-in-Chief, has expertise in the area of military justice. Congress presumably intended this approach; the open-ended language of Article 134 exhibits a need for narrowing by the President.
Maggs, 160 Mil. L. Rev. at 141. Thus, in the unique case of offenses charged under Article 134, UCMJ, we look at both the statute and the President's explanation in Part IV of the MCM to determine the elements of the offense.

United States v. Zachary, 61 M.J. 663, 667-668 (A. Ct. Crim. App. 2005) (footnotes omitted), aff'd, 63 M.J. 438 (C.A.A.F. 2006).
Professor Maggs' use of the word "narrowing" is important. The final element of each enumerated Article 134 offense is "That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces." That is ALL that is statutorily required for an Article 134(1) or (2) offense. So in promulgating Part IV's elements for Article 134 offenses, the President isn't "defin[ing] new offenses" at all - rather, he is ADDING elements to the congressional language, not modifying or expanding the congressional language. This really functions as a way to define the particular punishments that may be imposed for the various enumerated offenses, which the President may set under Article 56.

In footnote 7 of his dissent, Judge Baker observes that "[t]he majority does not address this elements argument." As CAAF's case law clearly holds, it is the courts' role to determine the elements of an Article 112a offense, not the President's. Why didn't the majority say so?

A remitted discharge really isn't any different than a disapproved discharge

I recently noted that NMCCA's published opinion in United States v. Pflueger, No. NMCCA 200400213 (N-M. Ct. Crim. App. Dec. 5, 2006), never made it into the Military Justice Reporter. Now West Publishing needn't bother -- CAAF just reversed Pflueger.

In Pflueger, NMCCA purported to give relief for post-trial delay by setting aside the adjudged BCD. But not so fast -- before it did so, the adjudged BCD had already been remitted. That led CAAF to remand the case to NMCCA, asking whether disapproving a remitted BCD had any practical effect. United States v. Pflueger, 61 M.J. 272 (C.A.A.F. 2005) (summary disposition). SURE, said NMCCA. NO, said CAAF today. United States v. Pflueger, __ M.J. ___, No. 05-0135 (C.A.A.F. June 21, 2007). Chief Judge Effron, writing for a unanimous court, sent the case back to NMCCA for another shot at awarding meaningful Tardif relief.

What a difference a year makes

Last year, CAAF was confronted with one of a long line of cases featuring "an ambiguous convening authority action." United States v. Politte, 63 M.J. 24, 24 (C.A.A.F. 2006). In Politte, the CA's action said that "the sentence is approved except for that part of the sentence extending to a bad conduct discharge." Now, we all know that the CA meant that the sentence would be executed except for the BCD, which can't be executed until the completion of appellate review. But that's not what the CA said. So a three-judge majority, consisting of Chief Judge Gierke, Judge Effron, and a highly grudging Judge Crawford sent the case back to the CA to ask him what he really meant to do.

In dissent, Judge Erdmann, joined by Judge Baker, followed his general preference for literal application of the law and said that the BCD had been disapproved, case closed.

Obviously two of the three judges in the Politte majority are now gone, which provided today's opportunity for the Politte dissent to emerge triumphant. Which it did, though with the odd defection of Judge Baker.

In United States v. Wilson, __ M.J. ___, No. 06-0503/NA (C.A.A.F. June 21, 2007), the CA's action said, "that part of the sentence extending to confinement in excess of 3 years and 3 months is disapproved. The remainder of the sentence, with the exception of the Dishonorable Discharge, is approved and will be executed." Writing for a majority consisting of himself, Judge Stucky and Judge Ryan, Judge Erdmann concluded that this language clearly disapproved the DD.

The majority reasoned: "In announcing that the 'remainder of the sentence, with the exception of the Dishonorable Discharge, is approved and will be executed,' the convening authority used facially clear and unambiguous language that excluded the dishonorable discharge from approval. Under the plain meaning of this language, the dishonorable discharge was not approved." Id., slip op. at 5. That analysis is both correct and almost certainly at odds with what the CA actually intended. The majority even seems to acknowledge that the CA didn't really mean to disapprove the DD by observing that "the convening authority must exercise care in drafting the action." Id., slip op. at 4. But Judge Erdmann consistently insists that the government obey the letter of the law, and in this case the letters of the law spell out disapproved DD.

Not surprisingly, given his position in Politte, Chief Judge Effron dissents, arguing that the case should be sent back to the CA to either approve or disapprove the DD -- something which Chief Judge Effron argues the original CA's action failed to do. More surprisingly, Judge Baker takes a similar approach, concluding that the CA's action is ambiguous. He seeks to distinguish Politte, arguing that the CA clearly disapproved the BCD there, while contending that the action in Wilson is ambiguous. I don't see it that way. In both cases, some form of the word "except" came in the same sentence as the words "approved" and "discharge." If one of them unambiguously disapproved the punitive discharge, then I believe the other did as well.

The lesson of Wilson is that a carelessly drafted CA's action can cost the government a punitive discharge. Will that lesson actually be learned?

Sanchez: A steel cage Daubhert/Kumho Tire match

In Justice Scalia's memorable phrase, a judge confronted with a novel form of scientific evidence must "choose among reasonable means of excluding expertise that is fausse and science that is junky." Kumho Tire Co. v. Carmichael, 526 U.S. 137, 158 (1999) (Scalia, J., concurring). The issue in United States v. Sanchez, __ M.J. ___, No. 06-0617/AR (C.A.A.F. June 21, 2007), is whether the military judge erred by allowing a doctor to testify about her conclusions that an alleged child-abuse victim's physical examination was consistent with sexual abuse. In a 4-1 opinion, CAAF said no. Both Judge Ryan's majority opinion and Chief Judge Effron's dissenting opinion are masterfully executed. They lay out their respective cases in compelling fashion. The majority opinion's focus is on the process. The military judge had discretion to decide whether the evidence was sufficiently reliable and she didn't abuse that discretion. The appellate court will therefore defer to her ruling. Chief Judge Effron's dissent is more concerned with the reliability of the expert's testimony itself rather than the process that the military judge used to evaluate it.

Each of these jurisprudential approaches has its advantages and disadvantages. The majority's is focused on the military judge --if she made a plausible call, she will be affirmed. Under this standard-of-review focused approach, two military judges trying the exact same case could both be upheld even if they made opposite rulings on the testimony's admissibility. The dissent's approach is more focused on the accused; did Specialist Sanchez receive a fair trial? Under this approach, there is only one right answer to the question of the testimony's admissibility.

Should scientific evidence be generally admissible, leaving it to the members to separate the junk from the science? Or should military judges rigorously protect the court-martial process from unproven forms of scientific quackery? To me, these questions have no obviously right answer. But a careful reading of both the Sanchez majority and dissent will spark useful thoughts about these dichotomies.

Father's Day was last Sunday, but there is no paternalism in Jameson

In United States v. Jameson, __ M.J. ___, No. 06-0881/MC (C.A.A.F. June 21, 2007), a 3-2 majority of CAAF upholds a trial judge's ruling that the defense counsel forfeited the accused's challenge to a consent blood draw by raising the issue for the first time during trial on the merits rather than pretrial, as required by Military Rule of Evidence 311(d)(2)(A).

All five judges agreed that the accused would have lost his rather ironic argument that he was too drunk to provide consent to the seizure that proved he was drunk. But Judge Ryan, joined by Judges Erdmann and Stucky, upheld the military judge's ruling that the defense counsel had not shown good cause to excuse his failure to raise the issue pretrial. Writing separately, Chief Judge Effron and Judge Baker each reserved judgment on that issue, preferring to resolve it on lack of prejudice grounds.

One opinion does not a trend make, but we should be on the lookout for signs of whether the current CAAF lineup will be less paternalistic and more willing to visit the sins of the lawyer on the accused than previous CAAF/CMA lineups have been.

No more cards and letters, please -- we have found the term's best footnote

In legal writing circles, there is quite a contentious on-going debate about the use of textual footnotes. Justice Breyer refuses to use footnotes at all. But love 'em or hate 'em, you've got to admire footnote 1 in CAAF's opinion in United States v. Jameson, __ M.J. ___, No. 06-0881/MC, slip op. at 3 n.1 (C.A.A.F. June 21, 2007): "1 J├Ągermeister is a strong, 70-proof, alcoholic beverage flavored
with herbs."

And to have this footnote defining a type of alcoholic beverage in a case called "Jameson" makes it even more delicious. Cheers!

Judge Erdmann horns in on Judge Baker's turf

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

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

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

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

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

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

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

Six -- count 'em, six -- new CAAF cases

Four Navy-Marine Corps; two Army.

Wednesday, June 20, 2007

United States v. Foerster: a gripe and a test of the system

Courtesy of the JO'C-to-the-No-Man-to-me electronic pony express, I have now read Foerster. Thanks, guys.

On Bob Newhart's classic stand-up album, "The Button-Down Mind Strikes Back!", there is a great routine called, "A Private in Washington's Army." (If you haven't heard it, I highly recommend buying the CD.) The point of the sketch is that foot-soldiers are gripers and have always been gripers. Newhart then imagines what a foot-soldier in the Revolutionary War would have griped about. He begins, "You hear what nutty George pulled last night? The dollar across the Potomac, you didn't hear about that? You know he had us out til three in the morning looking for the damn thing. We finally got back to the barracks around 3 o'clock in the morning. Know what time I finally got to sleep? 5. There's some nut flashing a light on and off in the church tower all night. And then the minute he quits, this drunk goes riding through town, screaming." You get the idea.

Well, to upgrade that routine to the 21st Century, as long as there are military justice bloggers there will always be gripers. And one of my gripes is the persistent under appreciation of the difference between Article III precedent arising from direct appeals and Article III precedent from habeas decisions, which often applies different standards of review than would apply on direct appeal. The Foerster opinion displays a variant of this problem. Look at footnote 3. (Well, look at footnote 3 if your computer can open the Foerster opinion or if you can persuade JO'C or the No Man to e-mail the opinion to you, too. For those of you who don't have the No Man's secret e-mail address in the Bat Cave, I'll set out footnote 3 below.)
3 Appellant was convicted two weeks before the Supreme Court decided Crawford. In Whorton v. Bockting, the Supreme Court stated that "it is clear that Crawford announced a new rule." 127 S. Ct. 1173, 1181 (2007). Because Crawford announced a "new rule" we apply it here. See Griffith v. Kentucky, 479 U.S. 314, 328 (1987) (holding "a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases . . . pending on direct review").

Foerster, slip op. at 7.
Note that statement of causation: BECAUSE Crawford created a new rule, CAAF will apply it to this case. But that's not the actual causation, is it? For purposes of retroactive application of precedent, the opposite of a "new rule" is "clearly established law." See generally Williams v. Taylor, 529 U.S. 362, 379-80 (2000) (plurality opinion). So let's say that instead of being a new rule, Crawford was clearly established law at the time of Foerster's court-martial. Well then, Crawford would still be applicable to his case. So the causation has nothing to do with Crawford being new law -- after all, the Whorton case that CAAF cites was a case declining to apply Crawford on habeas review because it was a new rule. Rather, the cause for applying Crawford is that Foerster's case remains on direct appeal rather than collateral review. So footnote 3 should have read, "Because appellant's case remains on direct appeal, Crawford applies despite being a new rule." Footnote 3's citation to Griffith v. Kentucky supports that very point.

Okay, enough griping. Now here comes the test of the system. Even though Foerster is a unanimous opinion, it certainly isn't a slam-dunk. The opinion itself appears to concede this when it acknowledges that Crawford itself "refers, at different times, to 'affidavits' as among those categories of out-of-court statements that could be considered within the 'core class of "testimonial statements."' Crawford, 541 U.S. at 51-52." Foerster, slip op. at 13.

Army Rule of Professional Conduct for Lawyers 5.4 includes this wonderful provision: "(e) Notwithstanding a lawyer’s status as a commissioned officer
or Department of the Army civilian, a lawyer detailed or assigned to represent an individual soldier or employee of the Army is expected to exercise unfettered loyalty and professional independence during the representation consistent with these Rules and to the same extent as required by a lawyer in private practice." Army Regulation 27–26 (1 May 1992) (emphasis added). That calls to mind the words of Captain Philpott, the great former director of the Navy-Marine Corps Appellate Defense Division from whom I learned so much. He used to tell us that when we were considering whether to seek discretionary review of a case, we should ask ourselves whether we would brief the issue if we were in private practice and the appellant walked into our office and dumped $10,000 on our desk to brief it. Would a lawyer in private practice file a cert petition for a paying client in Foerster? Of course. Will Army DAD?

New CAAF opinion

CAAF's web site includes a link to a new opinion in United States v. Foerster, No. 07-0093/AR. But the link doesn't work on my computer -- my Adobe Reader opens up, but I get a message saying the file is damaged and couldn't be repaired. Can anyone else open it?

Tuesday, June 19, 2007

CAAF issues opinions in two Navy-Marine Corps Cases

United States v. Hollings, __ M.J. ___, No. 07-0084/MC (C.A.A.F. June 19, 2007). Judge Baker for a unanimous court. Judge Baker continues in his role as CAAF's principal expositor of the law governing members challenges. Here CAAF rejects a defense argument that a unit personnel officer had sufficient connection to the legal processing of the case that he fell within R.C.M. 912(f)(1)(G)'s prohibition against a legal officer serving as a court-martial member. CAAF also determined that the record contained no evidence of actual or implied bias, even if the liberal grant mandate were to be applied.

United States v. Mack, __ M.J. ___, No. 06-0943/NA (C.A.A.F. June 19, 2007). Chief Judge Effron for a unanimous court. Mack involved, in part, a breaking restriction offense. CAAF held that the military judge erroneously submitted the legality of Mack's restriction order to the members rather than resolving it himself, as controversially provided by the New line of cases. The defense ingeniously pointed out that the military judge had granted extra sentencing credit for unduly harsh conditions of pretrial restriction, thereby rendering the unlawfulness of the restriction order the law of the case. Au contraire, ruled CAAF. The portions of the restriction order could be parsed and the unlawful conditions did not implicate the two portions of the restriction order that Mack was convicted of violating. Ruling on the issue de novo, CAAF concluded that the relevant portions of the restriction order were lawful.

CAAF also rejected a legal sufficiency challenge to Mack's conspiracy to obstruct justice conviction. Does anyone ever receive relief from CAAF under the Jackson v. Virginia standard? My next "What Would Bill James Do?" installment will be a statistical look at CAAF's outcome in legal sufficiency challenges to see whether it's even worth raising the issue.

CAAF also blessed NMCCA's resolution of the post-trial delay issue. NMCCA decided the case 1,830 days after Mack's court-martial. Finding that the post-trial delay was unreasonable and unexplained, NMCCA reduced Mack's DD to a BCD. CAAF held that due to the absence of prejudice resulting from the delay, this Tardif relief was sufficient.

Monday, June 18, 2007

Grants galore

Today's daily journal update included five grants. One is another Medina trailer with no briefs. We should call that the CAAFeteria's No Man special. See United States v. Frank, __ M.J. ___, No. 07-0363/NA (C.A.A.F. June 14, 2007).

The other four are: (1) a UCI issue in an Army case, United States v. Reed, __ M.J. ___ No. 07-0114/AR (C.A.A.F. June 15, 2007) (I really can't tell you a lot more than that; the issue isn't very enlightening and I can't find the opinion below); (2) another case construing Crawford v. Washington, this time whether two Virginia lab reports were testimonial hearsay, United States v. Harcrow, __ M.J. ___, No. 07-0135/MC (C.A.A.F. June 15, 2007) (NMCCA's unpublished decision is here); (3) an Air Force case asking the very informative question: WHETHER THE MILITARY JUDGE ERRED IN FAILING TO GRANT THE DEFENSE MOTION TO SUPPRESS THE RESULTS OF THE SEARCH OF APPELLANT'S PERSONAL COMPUTER IN LIGHT OF APPELLANT'S REVOCATION OF CONSENT, HIS SUBSEQUENT ACQUIESCENCE TO PRESSURE BY LAW ENFORCEMENT, AND THE INAPPLICABILITY OF THE INEVITABLE DISCOVERY DOCTRINE TO THE FACTS. SEE GEORGIA v. RANDOLPH, 547 U.S. 103 (2006), seeking reversal of an unpublished Judge Mathews the Great decision, United States v. Wallace, __ M.J. ___, No. 07-0194/AF (C.A.A.F. June 15, 2007) (JMTG's opinion for AFCCA is here); and (4) an Army case presenting these two unlikely issues:



United States v. Navrestad, __ M.J. ___, No. 07-0199/AR (C.A.A.F. June 14, 2007).

So CAAF may actually have something to do in October.

SCOTUS update

Today's order list included cert denials in Fuhrman, No. 06-1538, and Muhammad, No. 06-1529.

Sunday, June 17, 2007

Resource alert

Here's a link to the March issue of the Air Force's Reporter. It includes an article by the prosecutors in the Air Force capital case of United States v. Witt that will likely interest military justice practitioners. Lt Col Vance Spath, Maj Rock Rockenbach, & Capt Scott Williams, Death Penalty Litigation in the Air Force and the Court-Martial of Senior Airman Andrew Witt, The Reporter, March 2007, at 2.

Article III courts' habeas review of court-martial convictions cont'

Sacramentum has an interesting post about a recent unpublished Western District of Pennsylvania decision ordering an evidentiary hearing in a habeas corpus challenge to a court-martial conviction.

On the heels of that decision comes Friday's D.C. U.S. district court opinion dealing with the proper scope of review for a collateral challenge to a court-martial conviction. Oppermann v. United States, Civil Action No. 06-1824(EGS), 2007 U.S. Dist. LEXIS 43270 (D.D.C. June 15, 2007).

The law in this area is a complete mess. As I discuss in my upcoming article in the Military Law Review, here's the governing standard in the 10th Circuit, which due to the USDB's location probably handles far more such collateral challenges than any other circuit:

If the grounds for relief that Petitioner raised in the district court were fully and fairly reviewed in the military courts, then the district court was proper in not considering those issues. Likewise, if a ground for relief was not raised in the military courts, then the district court must deem that ground waived. The only exception to the waiver rule is that a petitioner may obtain relief by showing cause and actual prejudice.

Roberts v. Callahan, 321 F.3d 994, 997 (10th Cir.), cert. denied, 540 U.S. 973 (2003).

That hardly seems like a standard likely to promote justice. Indeed, the 10th Circuit's case law is so bad that if an issue is raised to a CCA and the CCA simply blows it off in a one-liner, it is considered fully and fairly reviewed and not susceptible to substantive Article III review. See Watson v. McCotter, 782 F.2d 143, 145 (10th Cir. 1986) ("When an issue is briefed and argued before a military board of review, we have held that the military tribunal has given the claim fair consideration, even though its opinion summarily disposed of the issue with the mere statement that it did not consider the issue meritorious or requiring discussion.").

While Sacramentum and I appear to disagree about the proper scope of Article III courts' collateral review of court-martial convictions, we seem to agree that the law needs further clarification. Of course, after the Supreme Court's truly frightening and unjust ruling on Friday in Bowles v. Russell, No. 06-5306, maybe I should be content to let sleeping dogs lie and be grateful that at least the Third Circuit and the D.C. Circuit allow for more meaningful Article III review of court-martial convictions than does the 10th Circuit.

Saturday, June 16, 2007

We have a winner!

EGN is the winner of the Stokes issue-writing contest. EGN, please send me your mailing address off-line and I will have a copy of Judge Baker's book shipped to you. BZ, EGN!

Resource alert

The March issue of the Army Lawyer is now on TJAGLCS's web site. The edition includes two military justice articles, both written by military judges. Colonel Michael J. Hargis writes a 2-1/4 page piece called, "Military Rule of Evidence (MRE) 412 and Sentencing." He emphasizes that Military Rule of Evidence 412's limitations apply during sentencing and analyzes them through the hypothetical of a defense counsel who wants to introduce evidence of a sexual assault victim's prior extensive sexual activity as a matter in extenuation and mitigation. Judge Hargis suggests that such evidence would likely be inadmissible.

Colonel David Conn writes a 7-1/3 page piece called, "Using a Witness's Prior Statements and Testimony at Trial." This piece is a refresher on the law with a few tactical suggestions sprinkled throughout the text.

Thursday, June 14, 2007

Issue writing contest ends in less than 48 hours

A reminder: our issue writing contest in United States v. Stokes ends in less than 48 hours. So far we have only three entries. Not even the Kabul Klipper, the Ken Jennings of CAAFlog contests, has entered yet.

SCOTUS update

The Supremes held a conference today, though the results won't be released until Monday. The military cert petitions in Fuhrman, No. 06-1538, and Muhammad, No. 06-1529, were scheduled for today's conference. Since the SG was not asked to respond, both will almost certainly show up as cert denied on Monday's order list. (Another indication that cert will be denied is that they are cert petitions in military justice cases.)

Wednesday, June 13, 2007

A mutual combatant really can regain the right to self-defense

CAAF today released its opinion in United States v. Lewis, __ M.J. ___, No. 07-5002/AR (C.A.A.F. June 13, 2007). Judge Stucky for a unanimous court. CAAF rejects the Judge Advocate General's certification of ACCA's ruling "that the military judge erred in refusing to give an instruction that a mutual combatant could regain the right to self-defense when the opposing party escalates the level of conflict, even when the combatant does not withdraw in good faith." Id., slip op. at 2. (Bless you, Judge Stucky, for using the Garnarian bottom-line-up-front (BLUF) opinion writing style. It makes blogging about the decision so much easier.)

For those of you who want the Cliff Notes version, here is what you should know from the Lewis opinion:

In this case, there was evidence that Private Harvey was on top of Appellee, punching him to the point that it looked to a witness that Private Harvey was "winning the fight." Here, the members could have found that Appellee could not withdraw, even if he wanted to. When Mr. Bryant, a competitive powerlifter, entered the fray and delivered kicks to Appellee’s head and face the members could have found that Appellee was unable to withdraw, even if he wanted to. He was on the ground, underneath Private Harvey. Once Mr. Bryant escalated the fight to the level that Appellee could reasonably apprehend he would suffer death or grievous bodily injury from kicks to his head and punches to his body, Appellee was entitled, under our decision in [United States v. Dearing, 63 M.J. 478 (C.A.A.F. 2006)], to defend himself even if he was the original aggressor or was engaged in mutual combat, as long as he responded in a manner proportionate to the threat he faced. United States v. Acosta-Vargas, 13.C.M.A. 388, 393, 32 C.M.R. 388, 393 (1962). The fact that Appellee was placed in a situation in which it was physically impossible for him to withdraw, even if he had wanted to, is, as noted above, not addressed in R.C.M. 916(e)(4). We do not believe that the President, in promulgating this Rule, intended the absurd result of requiring a mutual combatant or even an initial aggressor, to withdraw when he is physically incapable of doing so. See United States v. Leonard, 21 M.J. 67, 69 (C.M.A. 1985) (Rules for Courts-Martial, like statutes, are to be construed reasonably, to effectuate the purposes of the particular rule.)

Lewis, slip op. at 10-11.

But while I applaud Judge Stucky's BLUF style, I am puzzled by one portion of his opinion. Judge Stucky writes for the court:

The plain language will control, unless use of the plain language would lead to an absurd result. United States v. Martinelli, 62 M.J. 52, 81 n.24 (C.A.A.F. 2005) (Crawford, J., dissenting) ("'When the statute's language is plain, the sole function of the courts -- at least where the disposition required by the text is not absurd -- is to enforce it according to its terms.'" (quoting Hartford Underwriters Ins. Co. v. Union Planters Bank, N. A., 530 U.S. 1, 6 (2000))); see also Lamie v. United States Trustee, 540 U.S. 526, 534 (2004) (bankruptcy statute, although grammatically awkward, is not ambiguous and should enforced according to its plain meaning, as long as that result is not absurd).

Lewis, slip op. at 9.

Why did Judge Stucky cite a dissenting opinion to establish that proposition? Weirder still, Judge Stucky's quotation from a footnote in Judge Crawford's Martinelli dissent consisted entirely of a quotation from the Supreme Court. Why not directly cite Justice Scalia's opinion for the Court in Hartford Underwriters rather than taking an unnecessary detour to the Martinelli dissent? Does anyone have a theory to explain that one?

Tuesday, June 12, 2007

A matter of style

Since 30 May, CAAF has granted review of 5 issues that DON'T start with the word "whether." These issues, which are phrased in complete sentences, read much better to me than they would in the fragmentary "whether" construction. Now is there any chance that CAAF might relent on its capitalization fixation?

Weird issue

Here's the granted issue in United States v. Martinez, __ M.J. ___, No. 07-0028/MC (June 7, 2007):


NMCCA's opinion, which is on Navy Knowledge Online, kicked the two marijuana use specs mentioned above because the ROT failed to include the transcript of a motion hearing dealing with the defense's entitlement to expert witness testimony. United States v. Martinez, No. NMCCA 200301483 (N-M. Ct. Crim. App. Aug. 9, 2006) (per curiam).

Fascinating issue

Today's daily journal update includes a fascinating issue:


United States v. Rhoades, __ M.J. ___, No. 07-0173/AR (C.A.A.F. June 6, 2007).

Unfortunately, I wasn't able to find the opinion below on ACCA's web site, so I don't know the particulars. Where is Army Lurker when we need him or her?

The issue seems reminiscent of United States v. Nguyen, 56 M.J. 252 (C.A.A.F. 2001) (summary disposition), in which CAAF ruled for the defense in a writ appeal to allow a former Navy JAG to continue representing his client as a civilian counsel.

This D.C. bar ethics opinion considers the Ethics in Government Act and Rule of Professional Conduct 1.11 implications of a military attoreny continuing to provide representation to a client after becoming a civilian attorney. The D.C. Bar ultimately concludes that the attorney may stay on the case.

New CAAF opinion

United States v. Tippit, __ M.J. ___ No. 06-0914/AF (C.A.A.F. June 12, 2007). Chief Judge Effron for the majority. Judge Ryan concurring in part, dissenting in part, and concurring in the result. Judge Erdmann dissenting.

Here's the central issue that divided the three-judge majority from the two judges who wrote separately: The CA meant to dismiss the charges. But the CA's SJA erroneously advised him to "withdraw" the charges rather than dismiss them. The CA then wrote "Concur" and initialed off on the SJA's recommended course.

As a matter of law, the charges couldn't be withdrawn, because they had never been referred. So should CAAF put substance over form and give effect to what the CA meant to do? Or should CAAF construe the words according to their plain meaning in military law and hold that since charges were never properly dismissed, the speedy trial clock continued to run? Chief Judge Effron, joined by Judges Baker and Stucky, opted for substance over form. Judge Erdmann, who often insists that the government do things correctly, not surprisingly opted for applying the words' plain meaning. Judge Ryan agreed with Judge Erdmann, though she parted with him over whether any Article 10 issue had been waived.

Which view is right? It doesn't seem to me that either approach is either logically or jurisprudentially superior to the other. Each conclusion seems like the natural consequence of its respective starting point. Picking that starting point is the essence of judging and in this case it seems more art than science.

Does anyone have an argument that one approach is superior to the other? If not, what is your preference between the two?

Monday, June 11, 2007

ACCA can't handle the truth!

It's been a slow month for the CCAs. Neither the Air Force Court nor the Navy-Marine Corps Court has updated its web cite's opinion page for a month. Navy Knowledge Online includes what it says is a published NMCCA opinion, United States v. Dearmond, No. NMCCA 200501343 (N-M. Ct. Crim. App. May 31, 2007), but upon opening it, I see that the opinion says, "AS AN UNPUBLISHED DECISION, THIS OPINION DOES NOT SERVE AS PRECEDENT." Id., slip op. at 1. (I also checked to see if either of the other NMCCA opinions dated 31 May was published -- nope.)

But to break the monotony, ACCA issued an extremely troubling opinion today. Here is the essence of United States v. Stokes, __ M.J. ___, No. ARMY 20041348 (A. Ct. Crim. App. June 11, 2007). Stokes pled guilty to larceny of military property under the mistaken belief that the military would have to cover the $1,600 he racked up on his government credit card. On appeal, his crackerjack defense appellate counsel realized that was false and challenged the providence of the plea. GAD then CONCEDED ERROR. I'm not sure how often that happens, but I'm guessing just slightly more frequently than a filly wins the Belmont Stakes. Too bad, ACCA rules. Sure it was factually incorrect when Sergeant Stokes said the government would be out the money, but he said it, and that's all we needed to hear. (Not an exact quote.) Turning a blind eye to the truth "promotes judicial economy and brings finality to the appellate process. It also ensures that, except for those rare circumstances when truly new evidence comes to light, an appellant is not permitted to use the benefit of hindsight to undermine tactical decisions reasonably made at trial." Stokes, slip op. at 9. Well, it also promotes disrespect for the law, treating a court-martial finding like the result of a parlor game rather than a solemn pronouncement that should be, if possible, factually accurate.

It's a good thing for John Mark Karr that he wasn't in the Army. If he has shown up at a court-martial and admitted to killing JonBenet Ramsey, ACCA would have averted its gaze from any subsequent evidence proving that he wasn't guilty. Oh, and sorry, no petition for new trial based on new evidence -- you can't file one of those if you pled guilty. But don't worry, PVT Karr, ACCA might still let you use collateral evidence to raise an IAC claim. But what if the counsel hadn't been ineffective for believing Karr's story and had cut what would have been an advantageous deal for someone who actually had murdered a 6-year-old? Please enjoy your stay at the USDB, PVT Karr, you'll be here a while.

I have previously noted my very prosecution-friendly view that the Fourth Amendment exclusionary rule should be abandoned, in large part because it interferes with a trial's truth-seeking function. And here we have a case where the result was clearly factually incorrect, ACCA acknowledges that it was factually incorrect, and it says it doesn't care.

I'll bet CAAF cares. This will be an interesting petition process, since Army GAD has already formally sided with DAD on the issue. Will GAD support the petition for grant of review? Will DAD file a consent motion to summarily reverse?

Let's have another contest: write the issue presented for the Stokes supplement. A copy of Judge Baker's new book to the winner (or a book of equal value if the winner already has Judge Baker's book or if this winner IS Judge Baker). Contest ends at 1700 Eastern Daylight Time, Saturday, 16 June. I unilaterally pick the winner applying arbitrary and capricious criteria of my choosing. Bonne chance.

Celebrity Sighting (Redux): Robert Reed Part II

In lieu of actually coming up with additional original thoughts, I will post the comments that I had originally drafted hoping the esteemed Mr. Reed would grant permission to re-print his comments. I have to give serious kudos to Mr. Reed who took the time to talk to me this a.m. about his presentation and posting comments on CAAFlog. BZ, Mr. Reed.
It was a very Brady day (figured I'd keep that tag line) at the ABA Section of Public Contract Law: Battle Space and Contingency Procurements Committee meeting on Friday, June 8. Celebrity presenter Robert Reed made another excellent presentation on expanded Art. 2, UCMJ jurisdiction. His slides should be available on the committee's webpage soon--updated since the CAAF Conference.

Mr. Reed answered questions with great candor and revealed that DoD is currently considering whether to withhold authority under RCM 306(a)/401(a) or cede authority to act to DOJ in all or some subset of expanded Art. 2, UCMJ cases. Mr. Reed revealed he and his office are considering the Joint Service Committee's recommendations on the topic, which were presented to DoD General Counsel last month. According to one source, the JSC collected field inputs from their respective services earlier this year. However, JSC did not publish a formal notice requesting comments from the public. I skimmed DoD Directive 5500.17, and notice was probably not required under the instruction. Further, any superior authority can unilaterally withhold authority to act under RCM 306 or 401. Thus, on further review (and contrary to my earlier comments), DoD's reach down to the JSC was a positive sign that DoD was consulting those most affected by DoD's actions.

Based on that presentation, significant substantive limits under consideration by DoD might include:

1) Withholding authority based on RCM 306/401 in all cases except those where the offense is committed outside the US and the accused is located outside the US at the time of discovery of the offense;
2) Requiring permission from a combatant commander before going forward with a prosecution under expanded Art. 2, UCMJ jurisdiction;
3) Restrict application of non-court-martial procedures (possibly even summary courts-martial, though Reed did not specifically delineate any further) under expanded Art. 2, UCMJ; and
4) Restrict in some way expanded Art. 2, UCMJ jurisdiction to extraordinary cases.

Mr. Reed also mentioned that DoD was considering whether courts-martial under expanded Art. 2, UCMJ that were transferred stateside, as many are, would be passed on to DoJ and the federal district courts. A wise move, in No Man's opinion, if it gets implemented. Mr. Reed's, and others, rough time line on the implementation of these restrictions puts release of DoD guidance some time in Fall 2007. Stay tuned.

Sunday, June 10, 2007

The Cossio watch keeps ticking

On 1 June, the SG waived the United States' right to respond in Cossio, No. 06-1568, which we previous discussed here. As umkemesic notes in a comment to that prevous post, Cossio's cert petition is now set for conference on 21 June 2007. Unless at leat one justice asks the SG to file a submission, the case will be denied at that conference. Banker, No. 06-1544, which we previously discussed here, has also been docketed for the 21 June conference.

The SG has also waived the United States' right to respond in Fuhrman, No. 06-1538, and Muhammad, No. 06-1529, both of which we previously discussed here. Both are now set for conference this coming Thursday, 14 June.