Tuesday, June 12, 2007

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As a matter of law, the charges couldn't be withdrawn, because they had never been referred.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?


John O'Connor said...

It's the right result, but I think the conclusion of Judge Erdmann and my erstwhile NJS classmate Judge Ryan that the "withdrawal" of charges was a nullity is a bit silly. The clear intent was to drop the charges because, as the court notes, using "withdrawn" in its technical sense would be a nullity prior to referral. So why would a court try to reach a result that is clearly contrary to the intent of the parties who took the action in question? That remjinds me of attempts to saddle the government with completely absurd results by construing poorly-drafted CA actions to reach a result clearly not intended (such as when there's an argument that the CA didn't approve the punitive discharge where the CA simultaneously approved confinement of a decade or more).

Anonymous said...

The high point of the majority opinion, for me, was the two pages spent holding the appellant's feet to the fire because he failed to invoke the words "Article 10" -- although both the government and the military judge saw the issue based on the facts that he did raise, and addressed the issue at trial. Strict compliance is required in legal matters, old chap, must use the right terms, dot the i's, cross the t's, pip pip. Or pay the price, don'tcha know.

Of course, what makes that part really enjoyable is the five pages later on, wherein the majority excuses the government's repeated use of the term "withdraw" to describe the action taken in appellant's case, calling it a "colloquial" phrase with the same meaning as "dismiss." Never mind that the legal consequences in this case are entirely different, you see: when the SJA and convening authority use the wrong legal terms, it's best if we show some lenity.

John O'Connor said...

I actually agree with anonymous that it is silly to slice the onion so thinly as to find a failure to raise Article 10 below. But then, I also see no good reason why a court should find that an Article 10 motion is not waived by an unconditional guilty plea (yes, I know that CAAF came out the other way on this, so you can save me the cites).

Mike "No Man" Navarre said...

I think Mr. O'C is on to soemthing there. Seems the actual language of Tippit and Mizgala is why they held Tippit's feet to teh fire in this case. On Page 16, CAAF wrote, "In Mizgala, we concluded that Article 10 provides a narrow
exception to the normal rule that a speedy trial motion is waived by an unconditional guilty plea. 61 M.J. at 126." Suggests they are trying to make Mizgala as narrow an exception as possible. But, the juxtapostion with the later holding does run against my normal sauce for the goose, sauce for the gander instincts.

Anonymous said...

I guess Mathews month truly ended two weeks ago, as JMTG and Judge Erdmann came to the same conclusions, though from different angles. Too bad, I would have loved to have had an additional month of the OCFCJ. I think both JMTG and Judge Erdmann were spot on, since in this case the gov't didn't seem like they could find their gluteal regions with a map and a flashlight, yet somehow still pulled out a W. And what was the defense thinking when they didn't bring up Art 10 anyway? Would have made sense to at least have mentioned it.

John O'Connor said...


As for your question why the DC didn't mention Article 10, I'm sorry to say this, but I wouldn't be surprised if a high percentage of TCs and DCs don't really grasp that there are multiple speedy trial regimes with different rules for each. And I would say the same thing about trial level understanding of the difference between withdrawal and dismissal of charges. My experience was that much of the trial bar was about getting up in front of the jury with little understanding of the military justice structure or the pretrial machinations available to the defense. I'm not sure I ever saw a defense motion that wasn't just copied from a disk.

Anonymous said...

I'm not sure I ever saw a defense motion that wasn't just copied from a disk.

Harsh. Not necessarily unfair, or even untrue, just ... harsh.

Tippit's trial defense counsel, though, was Frank Spinner. You'd think he'd have known better than to overlook Article 10. Frank's a pretty bright guy ... just ask him, and he'll tell you.

Anonymous said...

I do think J O'C's assumption that the SJA knew what he was doing in asking for a withdrawal v dismissal might be stretching things. Just because an SJA makes O-5 doesn't always mean they are great lawyers and understand the RCM backwards and forwards. SJA's, like Frank Spinner, can foul up sometimes too.

The early indications are that this case will not be appealed higher. I wonder if that is a wise decision, after all, cert was sought for Cossio, another Art 10 case, and that one was a 12 page unanimous decision. This one stretches 44 pages, and is 3-2. Can anyone else see a cert worthy issue on either 6th Amendment or Art 10 grounds, or on either plain language vs divination of intent? Simply put, it seems that this was an issue of fairness, similar to no man's goosey analogy.

John O'Connor said...

Au contraire, Anonymous, I assume just the opposite: that the SJA DIDN'T know what he was doing. It's pretty clear from the context that what he was trying to do was drop the charges and he clearly did it the wrong way by purporting to withdraw them instead of dismissing them (if he didn't intend to drop the charges, presumably they would have poppsed up in some other forum).

My point was a little different, that it as clear what the SJA was trying to do, and it's silly to thwart that clear intent just because the execution was all screwed up.