Friday, June 22, 2007

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.


Anonymous said...

In a case I prosecuted, the accused, a QM3, had been put in pretrial confinement for something or other. Surrounded by guards inside the First Naval District's Fargo Building brig, he made this statement: "If I have to spend the rest of my enlistment in the brig, I personally will see that Commander Hratko [CO of USCG Base Boston, who put him into pretrial confinement] is taken care of." Ah, but brig time is not "good time" towards an enlistment. Is this a threat ["taken care of"] and, if so, is the contingency an impossible one?

Sacramentum said...

The Court has gotten all wrapped around the axle with this issue. I suppose the more confusion the better. It allows the Court to become the de facto factfinder.

As the accused's statement does not appear to have been made in jest, I believe he meant to harm the convening authority when he got out of pretrial confinement. That's enough for me.