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?