Tuesday, July 03, 2007

Jackson v. Virginia -- not as worthless as I thought

For tonight's installment of WWBJD, we take a quick peek at CAAF's legal sufficiency jurisprudence. I looked at every time CAAF has cited Jackson v. Virginia, 443 U.S. 319 (1979), since 15 October 2002, when Judge Erdmann joined the court. The total is 22. In 20 of those instances, CAAF evaluated the legal sufficiency of a conviction under the Jackson standard. Those 20 cases are the subject of our inquiry.

I began this research with a preconception that legal sufficiency review is useless. And it generally is. Consider, for example, United States v. Roderick, 62 M.J. 425 (C.A.A.F. 2006), where CAAF granted review of "whether the evidence is legally sufficient to sustain Appellant's conviction for taking indecent liberties with" his two young daughters by "having them engage in sexually explicit conduct for the purpose of creating a visual depiction of it." Did the Appellate Government Division get to write that issue? Is there more than one possible answer to that question? But despite lopsided legal sufficiency cases like Roderick, Jackson v. Virginia generated more relief that I had expected. (And isn't finding empirical results that confound expectations and "common knowledge" the whole point of Bill James' approach?)

In 16 of the 20 cases, CAAF rejected the legal sufficiency challenge. United States v. Brown, 65 M.J. 227 (C.A.A.F. 2007); United States v. Mack, 65 M.J. 108 (C.A.A.F. 2007); United States v. Young, 64 M.J. 404 (C.A.A.F. 2007); United States v. Washington, 63 M.J. 418 (C.A.A.F. 2006); United States v. Brisbane, 63 M.J. 106 (C.A.A.F. 2006); United States v. Pope, 63 M.J. 68 (C.A.A.F. 2006); United States v. Dobson, 63 M.J. 1, 21 (C.A.A.F. 2006); United States v. Roderick, 62 M.J. 425 (C.A.A.F. 2006); United States v. Wolford, 62 M.J. 418 (C.A.A.F. 2006); United States v. Hays, 62 M.J. 158 (C.A.A.F. 2005); United States v. Griggs, 61 M.J. 402 (C.A.A.F. 2005); United States v. Rollins, 61 M.J. 338 (C.A.A.F. 2005); United States v. Brooks, 60 M.J. 495 (C.A.A.F. 2005); United States v. Seay, 60 M.J. 73 (C.A.A.F. 2004); United States v. Springer, 58 M.J. 164 (C.A.A.F. 2003); United States v. Thompkins, 58 M.J. 43 (C.A.A.F. 2003).

In two of the remaining four, CAAF either altered or invalidated a conviction but awarded no sentence relief. United States v. Resch, 65 M.J. 223 (C.A.A.F. 2007); United States v. Rodriguez-Rivera, 63 M.J. 372 (C.A.A.F. 2006).

That leaves two out of twenty cases in which CAAF granted meaningful relief based on, at least in part, a Jackson v. Virginia analysis. One is United States v. Scheurer, 62 M.J. 100 (C.A.A.F. 2005), in which CAAF invalidated a driving while impaired conviction on legal sufficiency grounds and set aside the sentence based on that and another reversed finding. The other is United States v. Riley, 58 M.J. 305 (C.A.A.F. 2003), in which CAAF knocked an involuntary manslaughter finding down to negligent homicide and set aside the sentence based on Jackson.

So the next time I see a granted legal sufficiency issue in the Daily Journal, I'll suppress my natural inclination to wonder why CAAF is wasting its time on such a dog, now that I know that the dog does occasionally hunt.

1 comment:

Anonymous said...

Roderick is a significant case for practitioners for several reasons. First, with respect to the legal sufficiency issue, for the first time CAAF adopted the six-prong test used by most federal courts in determining what depictions constitute a “lascivious exhibition” of the genitals. Of no less importance was it’s holding that the military judge erred by concluding that dismissal was not a remedy for unreasonably multiplied charges – an issue that vexed the field for some time. Additionally, it reaffirmed the pleading-elements approach to multiplicity; essentially a modified Blockburger test.

The answer to your question - whether there is “more than one possible answer” to the granted issue of whether the evidence was sufficient to sustain Appellant’s conviction for taking indecent liberties as well as creating sexually explicit depictions of his daughters – is, of course, YES. After viewing the photographs of Appellant’s daughters, CAAF determined that “the evidence was legally sufficient to support the charge of using one of his daughters to create sexually explicit images BUT NOT THE OTHER.” Roderick at 427. It later explained, “the military judge’s finding on Specification 1 was not supported by legally sufficient evidence. Accordingly, we are compelled to SET ASIDE the military judge’s findings with regard to Specification 1 and dismiss the specification.” Roderick at 430.

Next time, try reading past the issue statement and the truth shall set you free.