Friday, August 31, 2007

It's alive!

As countless mad scientists have exclaimed in countless horror flicks: "It's alive!" (That reminds me; I must buy tickets to the Young Frankenstein musical on Broadway.)

Yes, I learned today that the Air Force Law Review is still alive (thanks, Fitz!). In fact, I actually held a hard copy of volume 59, the 2007 edition, in my own two hands. Here's what's in it:

Religion in the Military: Navigating the Channel Between the Religion Clauses

The Interception of Civil Aircraft Over the High Seas in the Global War on Terror

Official Time as a Form of Union Security in Federal Sector Labor-Management Relations [I haven't the foggiest idea what that means]

More Effective Federal Procurement Response to Disasters: Maximizing the Extraordinary Flexibilities of IDIQ Contracting

Reemployment Rights for the Guard and Reserve: Will Civilian Employers Pay the Price for National Defense?

And while the Air Force JAG School's link to Air Force Law Review issues is inoperative, through a massive effort of trial and error while drafting a snarky e-mail, I stumbled across a web page with links to volumes 38-59 of the Air Force Law Review. Enjoy!

(Now if only the Air Force JAG School would link that page ot its Air Force Law Review page . . . .)

Thursday, August 30, 2007

LTC Jordan describes his encounter with the military justice system

From Josh White's article in today's Washington Post:

"When they're playing pin-the-tail-on-the-donkey, that's a fun game until you're the donkey," Jordan said. "That's how I've felt these last 3 1/2 years, that I was the donkey."

Wednesday, August 29, 2007

Navy JAG Corps solicits applicants for military justice litigation career track

The Navy JAG Corps has established a military justice litigation career track. Oddly enough, the instruction setting up the program, JAGINST 1150.2 (3 May 2007), isn't available on the Navy JAG Corps web site's Navy JAG Instructions and COMNAVLEGSVCOM Instructions page. But in keeping with CAAFlog's constant quest to be helpful to our readers, we provide a link to the instruction on our new web page.

The program allows those meeting certain criteria to apply to be designated as military justice litigation experts or specialists, and most high-level military justice jobs are reserved for those who have been so designated (though, if I read the instruction correctly, a military justice litigation designation isn't necessary to be assigned as an NMCCA judge). The program is also expressly advertised as a means of ensuring that military justice specialists are competitive for promotion.

The deadline for receipt of applications is 12 October.

Does any other service recognize a comparable specialty?

Shining a spotlight on the SJA

We previoulsy noted what appears to be a new trend in NMCCA cases: naming the SJA who issued the SJAR. The most recent issue of JAGMAG (see below) shines more light on this practice.

The esteemed CAPT Reismeier, the head of Code 20, explains that the Judge Advocate General of the Navy "requested that the Chief Judge of NMCCA specifically include the name of the cognizant SJA in the title of each case the court reviews, just as the Court lists the military judge, appellate counsel, and convening authority. Effective June 12, 2007, the Chief Judge adopted this new procedure." CAPT Christian Reismeier, SJA’S Beware: Errors In Courts Martial Post-trial Processing, JAG Magazine, May/June 2007, at 10. Sure enough, the practice ssems to have caught on. 9 of the 10 latest opinions on NMCCA's public web site include the name of the SJA following the military justice's name immediately under the case's caption.

Military legal publications

The Navy JAG Corps now publishes a bi-monthly periodical called JAG Magazine -- which in naval nomenclature is no doubt abbreviated as JAGMAG. The first three issues are available here and the current issue is available here. The Navy JAG Corps' web page has also been redesigned.

While we are talking about military legal publications, can anyone tell us whether the Air Force JAG School still put out the Air Force Law Review? I can't find an issue on line more recent than 2005.

CAAF continuously considers Crawford

CAAF has granted review of yet another Crawford v. Washington issue. This grant was posted on CAAF's daily journal today:


United States v. Aguilar, __ M.J. ___, No. 07-0519/AR (C.A.A.F. Aug. 28, 2007). CAAF ordered the parties to brief the issue.

4 of the 45 cases in which CAAF has granted review and ordered briefs this calendar year have involved Crawford issues. Aguilar; United States v. Harcrow, __ M.J. ___, No. 07-0135/MC (C.A.A.F. June 15, 2007); United States v. Pack, __ M.J. ___, No. 07-0085/MC (C.A.A.F. June 5, 2007); United States v. Foerster, __ M.J. ___, No. 07-0093/AR (C.A.A.F. Feb. 20, 2007). CAAF's opinion in Foerster is published at 65 M.J. 120 (C.A.A.F. 2007). Pack will be orally argued on 25 October at Indiana University School of Law-Bloomington. Harcrow will be orally argued on 6 November on E Street.

United States v. Jordan sentencing hearing

In a comment to the post about LTC Jordan's court-martial below, Anonymous alertly calls our attention to the article linked here.

The article includes the following:

In an unusual move, trial judge Colonel Steven Henley rejected a US newspaper column last week that portrayed the court-martial as a humiliation for prosecutors and claimed they had been reluctant to charge Jordan at all.

'The prosecutors and the defence confidently presented their cases,' Henley said in closing the trial. 'That is it - no more, no less.'

No doubt the article is referring to Dana Milbank's "Washington Sketch" column from the Washington Post, which we previously noted here.

Anonymous comments:

Interesting that the trial judge would specifically refute published newspaper article (the Dana Milbank Washington Post article from last week). I don't think I've ever seen that happen before. For whatever it's worth, I know MAJ Pavlovcak (one of the prosecutors criticized in the article) and he's a good attorney. I also know the defense team quite well. I had heard something to the effect that they recommended Article 15 for this case.

Based on how things turned out in court, I am not surprised by the sentence.

Tuesday, August 28, 2007

Verdict in Abu Ghraib Trial of Lt Col Jordan

The Washington Post and AP are reporting that LTCOL Jordan, the former commander of the Joint Interrogation Briefing Center at Abu Ghraib, was acquitted of the most serious charges. Most sources are reporting LTCOL Jordan was found guilty of a single specification of disobeying an order to not talk about the investigation of abuse at Abu Ghraib. Sentencing is scheduled to begin this afternoon.

Anyone at the verdict announcement? Any inside information/ preview available on the likely sentencing strategy by either side?

Pick of the Week: Ashby and Schweitzer headed back to NMCCA

The long and tortured sage of United States v. Schweitzer and United States v. Ashby is not over yet. They may have to recall a certain Marine Major to re-litigate these. On May 10 and June 27, the N-MCCA decided Schweitzer and Ashby, respectively. For those that don't remember the tortured saga of these two Marine aviators a few words will refresh your recollection, EA-6B Prowler meets ski gondola in Aviano, Italy.

Ashby and Schweitzer ultimately pled guilty to relatively minor charges for the 1998 offenses, but more than a year after the tragedy in the Italian Alps (1999). A year later the sentences were approved by the convening authority (2000). Two to three years later the defense counsel filed their briefs (2002 and 2003). The government filed answers in 2003 and 2004. And, as noted above, N-MCCA expeditiously decided the cases in . . . . 2007. As one of our astute commenters noted, the Schweitzer and Ashby opinions include the following quote, "A sentence should not be disturbed on appeal, 'unless the harshness of the sentence is so disproportionate as to cry out for sentence equalization.' United States v. Usry, 9 M.J. 701, 704 (N.C.M.R. 1980)." Glad to see someone thought through including that quote in those particularly tortured cases. CAAF should grant sentence relief just for delaying the case, yet again. Considering the six months confinement/dismissal that one officer received and dismissal that the other officer received, any meaningful relief would essentially be a pardon and/or windfall for those officers. I know some N-MCCA court clerks, please tell me you guys didn't drop that quote in there?

Monday, August 27, 2007

Upcoming training

We previously noted that CAAF would be holding an orientation program for new appellate counsel on 6 September.

Here's another date to add to your calendar. On Friday, 19 October the Judge Advocates Association is presenting a one-day appellate advocacy seminar at the George Mason University School of Law.

Sunday, August 26, 2007

I don't understand the used book market

I occasionally search for military justice books I would like to own but don't. (If anyone knows how I can buy a copy of Colonel Snedeker's A Brief History of Courts-Martial or Homer Moyer's Justice and the Military, please let me know.)

In making one of my periodic quixotic quests recently, I came across something that I find very odd. In 2000, William S. Hein & Co. republished the Navy OJAG's incredibly useful Index and Legislative History, Uniform Code of Military Justice. You can still buy it from Hein for $115, though the need to do so has been largely supplanted by the Library of Congress's free on-line file featuring the same material. But suppose I want to take it to the beach with me for some light sea-side reading, so I really want to buy the book. Since I can get a new copy from Hein for $115, why would I pay $318.47 for a used copy? It's not like it's signed by Professor Morgan.

Six copies of the Index are available on from three different book dealers. Every single one costs more than a new copy from Hein. I'm not a Law and Economics disciple, but I would have thought that the marketplace would be sufficiently rational to prevent such bizarre pricing. Can anyone explain this one to me?

Saturday, August 25, 2007

New military justice case book

Those of you who teach military justice courses may be interested in a new case book published by LexisNexis: Military Justice: Cases and Materials. The authors are Gene Fidell, Beth Hillman, and me. Here's a link to the publisher's description of the book.

Inappropriate sentence appropriateness standard

In 2005, CAAF reversed a sentence appropriateness holding by NMCCA. United States v. Baier, 60 M.J. 382 (C.A.A.F. 2005). In that case, the Navy-Marine Corps Court had written, in part: "When reviewing a sentence it is important to consider the sense of justice of the community where the crime was committed which should not be disturbed unless 'the harshness of the sentence is so disproportionate to the crime as to cry out for equalization.' Rojas, 15 M.J. at 919." United States v. Baier, No. NMCCA 200200476, slip op. at 2 (N-M. Ct. Crim. App. Oct. 23, 2003) (per curiam). Wrong, ruled CAAF. That language "is legally incorrect. A Court of Criminal Appeals must determine whether it finds the sentence to be appropriate. It may not affirm a sentence that the court finds inappropriate, but not 'so disproportionate as to cry out' for reduction." In footnote 15 of its Baier opinion, CAAF also observed that the legally erroneous "language that the lower court quoted originated in United States v. Usry, 9 M.J. 701, 704-05 (N.C.M.R. 1980)."

What a surprise it was, then, to see United States v. Usry, 9 M.J. 701, 704 (N.C.M.R. 1980), cited in a March 2007 NMCCA opinion for the following proposition: "A sentence should not be disturbed on appeal, 'unless the harshness of the sentence is so disproportionate as to cry out for sentence equalization.'" United States v. Ryan, No. NMCCA 200401577, slip op. at 8 (N-M. Ct. Crim. App. March 29, 2007).

(The Ryan case, by the way, reads like an excerpt from the screenplay of A Few Good Men. Corporal Ryan was a squad leader for the Marine Security Force at Guantanamo. He was convicted of maltreating his subordinates in various ways -- perhaps inspired by the Code Red lore from the silver screen.)

CAAF wasted little time calling NMCCA's error to that court's attention. Ryan filed a petition for grant of review on 29 March 2007. United States v. Ryan, No. 07-0601/MC, __ M.J. ___ (C.A.A.F. March 29, 2007). His counsel obtained an enlargement to file the supplement not later than 30 July 2007. United States v. Ryan, No. 07-0601/MC, __ M.J. ___ (C.A.A.F. June 29, 2007). CAAF then turned around the case in little more than three weeks, affirming NMCCA's ruling on the findings, but setting aside its decision on the sentence. United States v. Ryan, No. 07-0601/MC, __ M.J. ___ (C.A.A.F. Aug. 23, 2007) (summary disposition). CAAF ruled: "The record of trial is returned to the Judge Advocate General of the Navy for remand to the Navy-Marine Corps Court for a new sentence appropriateness review in light of United States v. Baier, 60 M.J. 382 (C.A.A.F. 2005)."

I don't have access to Shepard's Citations right now, but presumably a cite to Baier pops up when Shepardizing Usry. How did Usry make it into an opinion issued more than two years after Baier?

New NMCCA published decision

NMCCA released a published opinion on 23 August. United States v. Bredschneider, __ M.J. ___, No. NMCCA 200700025 (N-M. Ct. Crim. App. Aug. 23, 2007). But at the moment it appears to be available only on NKO and not on the court's publicly available web site. As a service to our readers who don't have access to NKO, here's a link to the opinion.

Okay, now that everyone can read it, let's discuss it, shall we?

In Bredschneider, the Navy-Marine Corps Court reasonably concludes that a 7-year delay between completion of the trial and docketing at NMCCA was facially unreasonable. Bredschneider, slip op. at 2. (This means that the case languished in limbo longer than my daughter has been alive. It therefore failed what I shall henceforth call the Shannon Standard.) In this case, the government even conceded that the delay was unreasonable and without excuse. Id., slip op. at 3. But NMCCA concludes that the final two Barker v. Wingo factors militate against the defense. First, at no point before the case finally reached NMCCA did Bredschneider complain about the delay. Second, and of far greater importance to the Navy-Marine Corps Court, the court found no prejudice resulting from the delay. While Bredschneider claimed that he had been denied employment opportunities at Meijer’s, Lowes, and Wal-Mart as a result of his lack of a DD-214, the court clearly disbelieved this assertion. It pointed out that the record of trial contained information indicating that Bredschneider planned to take over his father's business, and Bredschneider's affidavit indicates that he did so, albeit on a part-time basis. The court also contrasted this case with United States v. Jones, 61 M.J. 80 (C.A.A.F. 2005), where CAAF found prejudice due to Jones' inability to even be considered for employment due to his lack of a DD-214. In that case, Jones presented affidavits from relevant officials at a trucking company to establish the impact of his lack of a DD-214. In Bredschneider, on the other hand, the defense relied solely on appellant's own affidavit. Not good enough, ruled NMCCA, citing United States v. Gosser, 64 M.J. 93, 98 (C.A.A.F. 2006) (per curiam). In Gosser, in a portion of CAAF's per curiam opinion that appears to be joined only by Chief Judge Gierke and Judge Baker, CAAF wrote: "We conclude that Appellant has failed to substantiate any claim of prejudice. Appellant relies solely on the assertions of his defense counsel in post-trial clemency submissions to the convening authority. He has provided no substantive evidence from persons with direct knowledge of the pertinent facts, nor is there adequate detail to give the Government a fair opportunity to rebut the contention." Actually it appears from footnote 21 of the Gosser opinion that the defense was also relying on a post-action affidavit from Gosser himself. Usually such an affidavit, which if believed would provide the basis for relief, would at least entitle the defense to a DuBay hearing under United States v. Ginn, 47. M.J. 236 (C.A.A.F. 1997). But the Gosser per curiam and the published Bredschneider case appear to recognize a Ginn exception for claims in appellants' affidavits supporting the prejudice prong in a Moreno analysis.

Okay, now moving back to Bredschneider. Despite its finding of no prejudice, NMCCA holds that the delay violated the Fifth Amendment's due process clause:
We conclude that over seven years to docket this 77-page, fairly uncomplicated record of trial is egregious. Moreover, the lack of any explanation by the Government for this extraordinarily long delay weighs heavy in our analysis. Tolerating such a delay would adversely affect the public’s perception of the high standards of our military justice system. Accordingly, we find that the appellant was denied his due process right to speedy review and appeal, even without a specific showing of significant prejudice.

Bredschneider, slip op. at 4.

The court then tells us that "[b]ecause we are not convinced beyond a reasonable doubt that the due process violation in this case was harmless, we will grant relief." Id., slip op. at 5. Ultimately, the court sets aside 6 of the 18 months of confinement that Bredschneider presumably already served some 6 years ago. Id., slip op. at 9. But the court also affirmed forfeiture of all pay and allowances. In light of that, will Bredscheider actually receive any meaningful relief from the retroactive invalidation of 6 months of confinement? Perhaps, under the doctrine that no more than 2/3 of pay may be forfeited unless the accused is in confinement. See United States v. Warner, 25 M.J. 74 (C.M.A. 1987); R.C.M. 1107(d)(2)(discussion). If Bredschneider actually served more than 12 months of confinement before being placed on appellate leave, he may have a claim to 1/3 of the pay of an E-1 for that period. If not, then the Bredschneider opinion may be vulnerable to attack at CAAF for awarding a meaningless remedy. See United States v. Pflueger, 65 M.J. 127 (C.A.A.F. 2007).

But wait, there's more. Have you lost sleep wondering whether those M80 firecrackers in your garage subject you to liability under Article 134 for possession of an unregistered firearm? Well rest easy tonight knowing that NMCCA set aside Bredschneider's guilty plea to this offense. The relevant federal statute, 26 U.S.C. § 5845(f), excludes from its reach destructive devices that are "neither designed nor redesigned for use as a weapon." So, NMCCA assures us, "a device that explodes is not covered by the statute merely because it explodes. Statutory coverage depends upon proof that a device is an explosive plus proof that it was designed as a weapon." Bredschneider, slip op. at 7 (quoting United States v. Hammond, 371 F.3d 776, 780 (11th Cir. 2004)). The providence inquiry in Bredschneider's case did not include any "discussion or inquiry regarding whether the M80s were designed for use as a weapon." Bredschneider, slip op. at 8. The Navy-Marine Corps Court set aside the guilty plea on this basis, but emphasized that its holding was limited to "requiring that in order to support a conviction under 26 U.S.C. § 5861(d), military judges must inform the accused and obtain admissions establishing that the alleged unregistered firearm, in this case M80 firecrackers, was designed for use as a weapon." Id. This is an interesting standard, since it appears to go to the manufacturer's intent rather than the accused's.

Having wiped out Bredschneider's conviction for the offense of possessing four firecrackers, NMCCA proceeds to apply those abominations of the military justice system: United States v. Peoples, 29 M.J. 426 (C.M.A. 1990), and United States v. Sales, 22 M.J. 305 (C.M.A. 1986). This is one of those rare cases in which I can't complain about a court's application of Sales and Peoples to support upholding the sentence as originally adjudged. The offense that was at issue is truly insignificant. And, assuming that the relief granted for the post-trial delay is meaningful and not illusory, that revision of the sentence more than offsets any additional time Bredschneider might have received as the result of his heinous firecracker offense.

We may not have seen the last of Bredschneider. Presumably there is some Navy or Marine Corps appellate counsel out there right now listening to muzak while holding on DFAS's customer service line in an attempt to figure out whether the Navy-Marine Corps Court's decision will put any money back in Bredschneider's pocket or whether it was instead a cruel hoax purporting to retroactively restore six months of Bredschneider's liberty that were irretrievably lost. If it was the latter, Bredschneider's supplement to his petition for grant of review should be more compelling than most.

Thursday, August 23, 2007

For your reading pleasure

1. Here is a link to LtGen Mattis's letter dismissing charges in United States v. Sharratt that we discussed here.

2. Here is a link to the News Media & the Law article about the NIMJ docket project that we discussed here.

3. Here is a link to Dana Milbank's account of yesterday's proceedings in the United States v. Jordan court-martial at Fort Meade.

Wednesday, August 22, 2007

LtGen Mattis's letter dismissing charges in United States v. Sharratt - UPDATED

We in the military justice blogging industry are a collegial bunch. Sacramentum has written about a very moving letter (Update: available here) from General Mattis to a Marine who had gone to an Article 32 for unpremeditated murder arising from the deaths of 24 Iraqis at Haditha in November 2005. Sacramentum has asked that I post the letter on As Sacramentum observes, it is well worth the read.

In the meantime, does anyone know who General Mattis's SJA is?

Considering H.R. 3174

I remain an enthusiastic support of H.R. 3174, the aptly-named Equal Justice for Our Military Act of 2007. The equality point works in either of two directions: the bill would provide servicemembers with an ability to seek cert more equal to that of civilian criminal defendants and it would provide servicemembers with an ability to seek cert more equal to that of alleged unlawful enemy combatants tried by military commissions. Both of those classes can seek cert as the result of ANY criminal conviction. H.R. 3174 would broader servicemembers' ability to seek cert, though even under this legislation, servicemembers receiving sentences insufficient to trigger the CCAs' jurisdiction would be barred from seeking Supreme Court review unless the relevant Judge Advocate General happens to refer the case to the CCA.

The legislation would help to fix the grossly gerrymandered cert jurisdiction established by the Military Justice Act of 1983. That legislation guaranteed the prosecution a path to the Supremes (through the vehicle of a specified issue to CAAF followed by a cert petition) while denying such a path to servicemembers in the huge majority of military justice cases that CAAF doesn't review. That legislation also strongly favored the respondent (almost always the prosecution) in extraordinary writ cases, making it possible to seek cert in such cases only where CAAF has granted extraordinary relief. So this legislation would help to level the playing field. It's the right thing to do. And history teaches us that the additional burden on the various military appellate shops and on the Supreme Court would be minimal.

But what would the legislation's likely jurisprudential effect be? Interestingly, the two most likely answers are: (1) none; or (2) make the law more favorable to the prosecution.

As we have previously discussed, there have been only 8 cases under the Military Justice Act of 1983 in which the Supreme Court has heard oral argument on a cert petition to CMA/CAAF. So the odds are small that there would be a sudden tidal wave of cert grants even if H.R. 3174 were to become law. Most likely, either every cert petition in the expanded pool will be denied or there will be an occasional grant, vacate and remand (GVR), resulting in some individual servicemember obtaining a better outcome on the basis of some other newly announced Supreme Court opinion. See, e.g., O'Connor v. United States, 535 U.S. 1014 (2002) (GVRing for further consideration in light of Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002)); Goodson v. United States, 471 U.S. 1063 (1985) (GVRing for further consideration in light of Smith v. Ilinois, 469 U.S. 91 (1984)).

Now let's move to the less likely scenario: the Supreme Court grants cert in one or several cases that wouldn't have previously fallen within its cert jurisdiction. The likely jurisprudential effect would be a windfall for the prosecution. Since the Military Justice Act of 1983 took effect, the Supreme Court has been more prosecution-friendly than has CMA/CAAF. Consider, for example, Davis v. United States, 512 U.S. 452 (1994). Both CMA and the Supremes ruled against the accused. But the Supremes did so on terms far more beneficial to the prosecution. CMA had ruled that when a suspect undergoing custodial interrogation makes an ambiguous reference to counsel, the interrogator must stop and clarify whether the suspect wants a lawyer. The Supremes, on the other hand, said that there is no need to clarify; the interrogator can bull right ahead unless there is an unambiguous request for counsel. In United States v. Scheffer, 523 U.S. 303 (1998), CAAF had ruled that an accused has a Sixth Amendment right to attempt to lay a foundation to introduce an exculpatory polygraph result. That's a fairly modest holding, yet the Supremes stepped in to say no, the Constitution doesn't require an exception to the President's flat prohibition of polygraph results at courts-martial. And, of course, we all know what happened in Clinton v. Goldsmith, 526 U.S. 529 (1999). So unless you are the only person on the planet who is personally invested in the Appointments Clause and the de facto officer doctrine, see Ryder v. United States, 515 U.S. 177 (1995), the Supremes have been far more hospitable to the prosecution than has CMA/CAAF.

And while both the Supremes and CAAF have seen significant personnel shifts since Goldsmith (only one current CAAF judge was even on the court in 1999, and he didn't participate in that decision), there can be little doubt that the currently constituted Supreme Court is more friendly to the prosecution than the currently constituted CAAF.

So any case that reaches the Supremes under H.R. 3174's expanded jurisdiction carries the prospect of fixing the law in a more prosecution-friendly manner than would have resulted if CAAF were to decide the issue in a later case.

It probably isn't the objective of those supporting H.R. 3174 to move the law in a more prosecution-friendly direction (it certainly isn't mine), but that would be a not-improbable outcome were H.R. 3174 to become law.

Tuesday, August 21, 2007


The Summer issue of The News Media & The Law (the Reporters Committee for Freedom of the Press's quarterly magazine), includes a very interesting article about NIMJ's so-far unsuccessful attempt to pry court-martial docket information loose from the various services. Nathan Winegar, Open to Those in the Know, News Media & the Law, Summer 2007, at 21. The Coast Guard agreed to provide information about the 2.3 cases it tries each year, but the article reports that the Army, Air Force, Navy, and Marine Corps sent NIMJ a joint letter declining to participate. According to the article, the joint letter "identified various interests at play, including 'protecting individuals accused of offenses,' 'improper publicity,' 'discipline,' and 'the need for transparency and public understanding of the military justice system.'" The letter continued, "Striking this necessary and delicate balance requires the exercise of sound judgment by the commanders responsible for both administering military justice and providing information to the public and the media."

[The Summer issue isn't up on the publication's web site yet. Perhaps it will be up soon.]

Now NIMJ is attempting to go over the Pentagon's head. This message is now scrolling across NIMJ's web home page: "Journalists and Counsel: Please provide timely docket information regarding upcoming courts-martial in support of an NIMJ pilot database modeled on the Canadian open docket system. E-mail your docket information to Thank you."

From the Hall of Henry L. (Two) to the Hall of Anthony

I have a follow-up on each of the Hall cases discussed yesterday. First, through the computer wizardry of the No Man, NMCCA's unpublished opinion in United States v. Anthony T. Hall, No. NMCCA 200600805 (N-M. Ct. Crim. App. March 20, 2007), is now available here on

Second, as Anonymous astutely observes, I made a mistake in my "Halls of Justice" write-up last night. In my original post, I said that CAAF had granted review in United States v. Henry L. Hall II. Anonymous points out that the Hall II order "is not a grant of review yet, just a request for briefs on a specified issue." Sure enough, on the 17 August daily journal, the Hall II order appears under the "Interlocutory Orders" heading and not the "Orders Granting Petition for Review" heading. But what exactly is the Hall II order, then? Is it really simply an order telling the appellate defense counsel to file a supplement to the petition for grant of review addressing that issue and telling GAD to respond? If so, the wording seems a bit strange. Also, if you are going to go to that much effort, why not just grant review rather than prolonging the prologue? Of course the formal granting of review matters a great deal, since that is what opens the door to the right to file a cert petition at the Supremes.

Apparently I wasn't the only one confused. On CAAF's own web site, Hall II is listed on the New Grants and Summary Dispositions page.

Does anyone have additional insight about the Hall II order's species? Perhaps the author of the CAAF Rules Guide, Eugene Fidell the Sagacious, can offer us some guidance.

Monday, August 20, 2007

The Halls of Justice

Today is a good day to be named Hall (my middle name, BTW). CAAF's daily journal update included two grants of review. Each appellant is named Hall.

In the case of Lance Corporal Anthony T. Hall, CAAF granted review of two issues. United States v. Hall, __ M.J. ___, No. 07-0384/MC (C.A.A.F. Aug. 17, 2007). One of them is an amusing little issue:


Did CAAF essentially grant review of whether there was a typo in NMCCA's opinion. (NMCCA's opinion, by the way, is on NKO but doesn't appear to be on its public web site. I'll see if we can get it up on CAAF didn't order briefing on this issue, so apparently it can rule on whether there was a typo without having to hear further from the parties.

Here's the second issue, which the parties were ordered to brief:


Now that's another extremely well-phrased issue presented. Here is the NMCCA opinion's entire analysis of this issue:

We review the military judge’s decision to permit Special Agent Rizas to testify that the burn pattern of the victim’s injuries were indicative of non-accidental trauma for abuse of discretion. Assuming without deciding that the military judge erred, we find that the error was harmless beyond a reasonable doubt. There was ample medical expert testimony by Dr. Schneider relating to how the observed burn patterns indicated a non-accidental cause of injury. Record at 201-03. We find, therefore, that the military judge did not abuse his discretion.

United States v. Hall, No. NMCCA 200600805, slip op. at 3 (N-M. Ct. Crim. App. March 20, 2007).

Is it just me, or is the second sentence of that excerpt inconsistent with the last sentence?

In the second Hall case, CAAF specified a legal sufficiency issue:


United States v. Hall, __ M.J. ___, No. 07-0430/AR (C.A.A.F. Aug. 17, 2007). I couldn't find the ACCA opinion on line.

Given this specified issue and the recent granting of the extremely artful legal sufficiency issue in United States v. Bright, __ M.J. ___, No. 07-0269/AR (C.A.A.F. Aug. 16, 2007), it's a good thing that, contrary to my assumption, legal sufficiency can present a viable avenue for relief.

Sunday, August 19, 2007

Serving the addendum SJAR on the defense

We recently had an extended conversation about serving the addendum SJAR on the defense. Due to Friday's extensive development, that conversation has already dropped off of CAAFlog's front page.

Most commentators thought that SJAs in the field simply don't have the experience to make the correct cost-benefit analysis concerning service of the addendum SJAR. If that's right -- and it probably is -- then shouldn't the system make that choice for them? Shouldn't the Joint Services Committee see the problem and recommend that R.C.M. 1106(f)((7) be amended to require service of the addendum SJAR on the defense regardless of whether it contains new matters? So that the defense can't delay the CA's action forever by continually responding the addendum SJARs, thus providing a new 10-day period, how about also expressly providing that the CA may act on the case after either: (1) 10 days have passed from service of the addendum SJAR; or (2) the defense has responded to the addendum SJAR. Under such a rule, the CA could act even if the defense introduced a new allegation of legal error to which the SJA had not responded.

Such a rule change would promote fairness, eliminate hundreds of hours of work at the appellate level each year and reduce the average time that servicemembers with court-martial convictions spend on appellate review. Is there a downside?

Friday, August 17, 2007

Resource alert

I just stumbled upon an Internet blurb on the following treatise published by Matthew Bender with a 2007 copyright:

David A. Schlueter, Charles H. Rose, III, Victor Hansen & Christopher Behan, Military Crimes and Defenses.

It goes for $130. Has anyone seen it yet? Is it a "must have" for a military justice library?

Now HERE is an issue presented!

BZ to the defense counsel who wrote the following issue presented:


Not surprisingly, CAAF has granted review. United States v. Bright, __ M.J. ___, No. 07-0269/AR (C.A.A.F. Aug. 16, 2007). I can't find ACCA's opinion in the case.

A right to all or nothing?

Corporal Miergrimado shot another corporal in the neck. The facts leading up to this incident make for a good read. See United States v. Miergrimado, No. NMCCA 200501128 (N-M. Ct. Crim. App. Feb. 22, 2007). As a result of this incident, Miergrimado was charged with attempted premeditated murder. At trial, the defense objected to the military judge instructing the members on attempted voluntary manslaughter, preferring an all or nothing strategy. The military judge nevertheless instructed on LIOs and, in an opinion by then-Chief Judge Wagner, NMCCA rejected Miergrimado's argujment that United States v. Waldron, 9 M.J. 811 (N.C.M.R. 1980), aff'd, 11 M.J. 36 (C.M.A. 1981), allowed the defense to choose whether to go all or nothing. The Navy-Marine Corps Court also rejected the defense argument that there shouldn't have been separate LIO instructions to attempted unpremeditated murder and attempted voluntary manslaughter because there is no difference between the two offenses. Now CAAF will play the Howie Mandel role in this high stakes game of Deal or No Deal. CAAF has granted review on the following issue: "WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED IN AFFIRMING THE MILITARY JUDGE'S DECISION AT TRIAL TO INSTRUCT THE MEMBERS ON THE CLAIMED LESSER INCLUDED OFFENSE OF ATTEMPTED MANSLAUGHTER OVER THE ACCUSED'S OBJECTION." United States v. Miergrimado, __ M.J. ___, No. 07-0436/MC (C.A.A.F. Aug. 16, 2007).

Is materiality of the falsehood an element of fraudulent enlistment?

In Holbrook, a young man gained entry into the Coast Guard by lying about his preservice drug use. On appeal of his fraudulent enlistment conviction, he argued that he could be found guilty only if he knew that had he told the truth, he would have been barred from enlisting. In a decision we discussed here, the Coast Guard Court disagreed. Now CAAF has decided to review this issue: "WHETHER APPELLANT'S PLEA TO FRAUDULENT ENLISTMENT (CHARGE I) WAS IMPROVIDENT BECAUSE THE MILITARY JUDGE FAILED TO ELICIT FACTS SUFFICIENT TO ESTABLISH THAT APPELLANT KNEW HE LIED ABOUT A MATERIAL FACT RELEVANT TO HIS QUALIFICATIONS FOR ENLISTMENT." United States v. Holbrook, __ M.J. ___, No. 07-0350/CG (C.A.A.F. Aug. 16, 2007).

Final accounting of pay and personal jurisdiction

In United States v. Hart, __ M.J. ___, No. 07-0247/AF (C.A.A.F. Aug. 16, 2007), CAAF granted review of the following uninformative issue: "WHETHER THE CHARGE AND SPECIFICATIONS SHOULD BE DISMISSED FOR LACK OF PERSONAL JURISDICTION." Fortunately the decision below is available on the Air Force Court's web site. United States v. Hart, No. ACM 36253 (A.F. Ct. Crim. App. Nov. 30, 2006). That opinion explains that "appellant contends he was administratively discharged prior to trial and the court-martial therefore lacked personal jurisdiction to try him for the offenses sub judice." Id., slip op. at 2.

In Hart, an airman first class who was pending investigation for drug offenses was issued a DD 214 for medical reasons on 3 March 2004. "The form reflected an effective separation date of" that same date, 3 March 2004." Id., slip op. at 3. The Air Force Court tells us, "On 5 March 2004, the appellant's squadron commander, AFOSI, and the legal office," all of whom believed Hart was on legal hold, "learned of his disability separation. None were pleased." Id. But aha! Due to standard military bureaucratic inertia, Hart hadn't yet received his final pay. The command seized on this loophole to argue for continued court-martial jurisdiction.

Also on 5 March 2004, Hart's acting squadron commander issued a memorandum "stating the appellant's discharge was in error and asking that the DD Form 214 be revoked. In addition, the appellant’s civilian attorney was contacted and told the appellant was required to return to his unit no later than 7 March 2004. The appellant did not do so." He was then reported as being UA and was arrested by civilian authorities.

The Air Force Court explained that "To effectuate an early discharge, there must be: (1) a delivery of a valid discharge certificate; (2) a final accounting of pay; and (3) the undergoing of a 'clearing' process as required under appropriate service regulations to separate the member from military service." Hart, slip op. at 4 (quoting United States v. Harmon, 63 M.J. 98, 101 (C.A.A.F. 2006)).

Everyone agreed Hart had been delivered a valid discharge certificate and had gone through a clearing process. So the "sole issue" that confronted the Air Force Court was "whether the appellant received a 'final accounting of pay' within the meaning of relevant case law and the requirements of 10 U.S.C. § 1168(a)." Hart, slip op. at 4. No, said the Air Force Court. We'll see, says CAAF.

Mil. R. Evid. 1006 case -- Yes!

CAAF has granted review in a case involving Military Rule of Evidence 1006, which permits voluminous writings, recordings, and photographs to be presented in summary form. MRE 1006 is not exactly the subject of frequent litigation. In fact, the sixth edition of the invaluable Military Rules of Evidence Manual annotated precisely zero military justice cases in its Rule 1006 section. So it is exciting to see CAAF deciding to explores this rule's contours a bit. Here are the granted issues:



United States v. Reynoso, __ M.J. ___, No. 07-0221/MC (C.A.A.F. Aug. 16, 2007). I couldn't find Reynoso on either NMCCA's web site or NKO. Does anyone know any more details about the case?

CAAF grants review in HIV assault case

We previously discussed the Coast Guard Court's opinion in United States v. Upham here. CAAF has now granted review of two interesting issues in the case:



United States v. Upham, __ M.J. ___, No. 07-0322/CG (C.A.A.F. Aug. 16, 2007).

Findings reversed due to erroneous ruling on member challenge

In United States v. Bryant, __ M.J. ___, No. ACM 36515 (A.F. Ct. Crim. App. Aug. 16, 2007), the Air Force Court set aside the findings and sentence, ruling that the military judge abused his discretion in denying a challenge for cause. Senior Judge Francis wrote for a unanimous panel that also included Judges Soybel and Brand.

The case involved a defense challenge for cause against Col C, who was the Individual Mobilization Augmentee to the special court-martial convening authority. The Air Force Court emphasized that while this case was tried by a general court-martial, the SPCMCA had played a particularly active (and completely proper) role in its pretrial processing. Col C had had no prior dealings with Bryant's case and was unaware of any details about it. But Col C "described himself as 'part of the [SPCMCA's] command section,' who was generally 'used in [a] capacity almost like a second vice commander,' and would 'substitute in meetings for either the commander or the vice commander.' He also, at times, served as the wing commander when the[SPCMCA] was away, albeit for a total of only about a week over a two-year period." Id., slip op. at 2.

The defense challenged Col C based on actual and implied bias. The military judge denied the challenge, providing what the Air Force Court characterized as "only minimal explanation of his decision and no analysis at all with regard to the issue of implied bias." Id., slip op. at 3.

But that was only the first stroke of this judicial spanking. The Air Force Court ruled:

Applying the abuse of discretion standard, the absence of any rationale or reference to the legal standard applied forces us to conclude the military judge abused his discretion when he denied the challenge for cause against Col C. Whether viewed as a "second vice commander" or just the wing commander's IMA, he is likely to be perceived by most members of the Air Force and the public as the alter ego of the commander he serves. Indeed, Col C indicated that he himself on occasion served in the commander's stead when he was away and substituted in meetings for the commander. Because that commander is, in this case, the same SPCMCA who played a substantial role in the court-martial process of this appellant, Col C's position as a prospective court-member raised an appearance of unfairness. Accordingly, absent a rational and factually supportable finding by the military judge that the appearance of unfairness was overcome by other factors, the challenge for cause should have been granted.

Id., slip op. at 4.

But as suggested by an astute footnote, id., slip op. at 3 n.2, had the case been tried six months later, the result would have been different. When its challenge for cause against Col C was denied, the defense exercised its peremptory challenge against him. Under the abominable 2005 changes to R.C.M. 912(f)(4), that use of the peremptory challenge would have waived the issue on appeal. As we previously discussed here and here, that change is an affront to justice. And this case demonstrates why. The Air Force Court's opinion indicates that two other members were unsuccessfully challenged for cause. Id., slip op. at 3 n.1. The defense counsel plausible announced that had the challenge for cause against Col C been granted, the defense would have peremptorily challenged another member -- probably one of the two members the defense unsuccessfully challenged for cause. See id., slip op. at 3. So in the post-abominable-R.C.M.-912(f)(4)-amendment world, the military judge could erroneously deny a challenge for cause, thereby depriving the defense of the use of its sole peremptory challenge that it would have used against another member about whom the defense had demonstrable qualms, and R.C.M. 912(f)(4) would deny relief.

Defense counsel have got to challenge this abominable rule hammer and tong. Note that the Kabul Klipper previously suggested Article 41(b)(1), which says the accused is "entitled" to one peremptory challenge, as a basis for doing so. Has anyone seen such a challenge litigated in a post-13 November 2005 case?

Busy day in military justice land

Today's CAAF daily journal update includes 6 new grants. And the Air Force Court posted a published opinion on its web site today. It's time for me to get down to work. Posts to follow.

EGAD! Government concedes Wilson?

In case any of you don't read the comments to the posts here on CAAFlog, here is what appears to be an enormously important development in the Wilson case brought to our attention by an anonymous Yankees fan:

Anonymous said...
And too bad the Army government appellate division already conceded the issue in its final brief. Where is appellate advocacy when we need it? Let's have a debate, not a rollover. As the Scooter used to say, "Holy Cow!"

Fri Aug 17, 06:14:00 AM EDT

I assume the conceded issue is whether a reasonable and honest mistake of fact as to age is a defense in a sodomy case.

Appellate courts are fond of saying that they need not respond to a party's concession like a Pavlovian dog, so this may not end the discussion. And the wording of the granted issue in United States v. Gainous, __ M.J. ___, No. 06-0932/NA (C.A.A.F. Aug. 14, 2007), suggests that at least someone on CAAF may not see the case the same way that apparently both GAD and DAD do. But this seems to be a rather huge development. Can anyone with access to the parties' filings shed further light on this?

Also check out Fitz's important comment here.

Thursday, August 16, 2007

15 minutes of fame

On Wednesday, 17 October, sometime around 1100, CAAF will hear 15-minute arguments by the parties in one of the most significant cases on its docket. The issue in United States v. Wilson, No. 06-0870/AR, is whether the defense of mistake of fact as to age is available with respect to a charge of sodomy with a child under the age of 16 under Article 125. This issue is significant enough in itself. It also carries the potential for further exploration of Lawrence v. Texas, 539 U.S. 558 (2003), and United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004). And now it carries the potential to explore a fascinating jurisprudential issue as well.

In United States v. Gainous, __ M.J. ___, No. 06-0932/NA (C.A.A.F. Aug. 14, 2007), CAAF specified the following issue:


This particular language is significant, since the issue was specified by the court. And the issue appears rather weighted, since dicta usually doesn't overrule precedent. This wording suggests that the issue may launch a fascinating jurisprudential discussion of the nature of stare decisis. Note that the issue doesn't simply ask whether mistake of fact as to age is or isn't a defense to a sodomy charge. Rather, CAAF asks about the legal import of two of its previous cases addressing that issue.

CAAF directed that no briefs be filed in Gainous. But it gave the counsel in Wilson an important glimpse into what is on at least some of the CAAF judges' minds. Wilson should be a fascinating argument. Too bad it is scheduled to be so short.

Can we all please agree to serve the addendum SJAR on the DC?

When I was an appellate defense counsel, I made a cottage industry of challenging SJAs' failure to serve addendum SJARs on the defense before the CA acted. And the Navy-Marine Corps Court made a cottage industry of concocting unpersuasive rationales for why it was okay for the SJA to have the last word without giving the defense any opportunity for rebuttal. Now, as happens from time to time, CAAF is weighing in on whether failure to serve an addendum SJAR on the defense counsel was reversible error.

In its most recent daily journal update, CAAF grants review of the following issue: "Whether the addendum to the staff judge advocate's recommendation contains 'new matter' not provided to defense counsel for comment, necessitating a new convening authority action in this case." United States v. Scott, __ M.J. ___, No. 07-0597/AF (C.A.A.F. Aug. 15, 2007).

Let's consider the case of Senior Airman Scott. On 31 August 2005, he was sentenced to, among other punishments, a DD and five years of confinement. See United States v. Scott, No. ACM 36514 (A.F. Ct. Crim. App. March 28, 2007). The only offense that the Air Force Court actually tells us he was convicted of is a Privacy Act violation. Let's hope he did more than that to get a five-year sentence. But whatever he did, AFCCA knocked his sentence down to four years. So Scott is now coming up on the half-way point of his sentence. There's a pretty good chance that he's out of confinement by now. But for the addendum SJAR issue in his case, it would probably be final by now and the Air Force would have executed his discharge.

BUT because the SJA at Davis-Monthan Air Force Base decided not to serve the addendum SJAR on the defense counsel, the case lives on. CAAF probably won't decide the case until March 2008 at the earliest. The mandate won't issue until 20 days later. So as a best-case scenario, Scott will stay on the Air Force's rolls for an extra 8 months. But what if CAAF reverses the Air Force Court? Then Scott will get a new CA's action, followed by a new automatic appeal to the Air Force Court, a new right to petition CAAF (a petition that CAAF will grant under its standing policy of granting returning cases) and even the right to seek Supreme Court review. His case could easily remain on appeal for an additional two years. And throughout those two years, the military will remain responsible for Scott's health care. If Scott has dependents, the military will remain responsible for their health care as well. The Air Force will also incur the administrative costs of continually reissuing Scott and any dependents their military i.d. cards. While he is on appellate leave, he can use his Montgomery GI Bill benefits. The list goes on.

Compare these costs of not serving the addendum SJAR on Scott's defense counsel with the cost of doing so. Was that a good trade?

Wednesday, August 15, 2007

Sodomy trailer cases

As discussed in a new post over at the Sacramentorium, today's update to CAAF's daily docket includes grants in a couple of trailer cases to United States v. Wilson, No. 06-0870/AR, which deals with whether a mistake of fact as to age defense is available in a sodomy prosecution.

I have some thoughts about the wording of the specified issue in one of these trailer cases. I'll share those in a post tomorrow. Wilson seems to be developing into an enormously important opinion. Heck, maybe it will even be as important as United States v. Leonard, 64 M.J. 381 (C.A.A.F. 2007).

Unreserved jurisdiction

The Coast Guard Court of Criminal Appeals has posted a new decision on its web site. United States v. Wimett, Dkt. No. 1258 (C.G. Ct. Crim. App. Aug. 15, 2007). It isn't immediately apparent whether the opinion is to be published or not, but its length (3 pages) suggests an unpublished opinion.

The accused was a member of the Coast Guard Selective Reserve. On appeal, the defense argued that the court-martial didn't have jurisdiction because Petty Officer Wimett had not been recalled from his reserve status to active duty by a general court-martial convening authority as required by Article 2 of the UCMJ. The opinion suggests that the defense relied on the fact that the actual travel orders recalling Petty Officer Wimett were issued by a petty officer and not by a general court-martial convening authority (GCMCA).

The Special Court-Martial Convening Authority asked the GCMCA to order that Petty Officer Wimett "be involuntarily recalled to active duty on July 29, 2005 for trial by special court-martial pursuant to Article 2(d)(1)." Wimett, slip op. at 2. The GCMCA asked the Commandant of the Coast Guard for permission "for me to order YN2 Wimett to active duty involuntarily for the purpose of a special court-martial." Id. at 3. The Commandant approved the request. Id. A petty officer then cut the travel orders recalling Petty Officer Wimett.

The Coast Guard Court emphasized the distinction "between the authority to order a reservist to active duty, and the administrative act of processing the order." Id. The court reasoned: "Neither the UCMJ nor Coast Guard regulations specify the form in which such a recall is to occur. The UCMJ does not require that the recall order be in writing, or that the GCMCA personally sign the recall order. . . . We are convinced by the entire record that Appellant was ordered to active duty by the GCMCA after receiving permission from the Commandant, and the court-martial had personal jurisdiction over Appellant." Id.

Let's look at Article 2(d)(4). It specifies: "A member may be ordered to active duty under paragraph (1) only by a person empowered to convene general courts-martial in a regular component of the armed forces."

Who ordered Petty Officer Wimett to active duty? The opinion suggests that the government couldn't come up with any document in which the GCMCA directly ordered Wimett to active duty or where someone else did so acting by direction of the GCMCA. And the government bears the burden of proving jurisdiction, so the absence of any such document must be treated as conclusive of such documentation's nonexistence.

This seems to me to be one of those cases that periodically arise in military justice practice where the spirit of the law has been followed but the letter of the law has not. In such cases, Judge Erdmann often insists that the government adhere to the letter of the law. So I would expect at least one vote to grant review in this case. My guess is that Judge Erdmann will pick up the necessary second vote on this one as well.

In cases like this, both the officials convening a court-martial and later reviewing authorities should keep in mind the Supreme Court's admonition in the famous case of Runkle v. United States, 122 U.S. 543 (1887):

A court-martial organized under the law of the United States is a court of special and limited jurisdiction. . . . To give effect to its sentences, it must appear affirmatively and unequivocally that the court was legally constituted; that it had jurisdiction; that all the statutory regulations governing its proceedings had been complied with; and that its sentence was conformable to law.

Id. at 555-56.

Was Petty Officer Wimett's court-martial "unequivocally" legally constituted? Were "all the statutory regulations" governing its creation complied with? The Coast Guard Court seemed to answer those questions by saying, "Close enough." Runkle suggests that isn't a satisfactory answer.

Monday, August 13, 2007

All Gonzalez All the Time

For those too lazy to read the two Gonzalez opinions by NMCCA, that's me, here is a redline version showing the changes from the August 10 opinion, United States v. Gonzalez, No. NMCCA 200400055 (N-M. Ct. Crim. App. Aug. 10, 2006), to the August 28 opinion, United States v. Gonzalez, No. NMCCA 200400055 (N-M. Ct. Crim. App. Aug. 28, 2006).

I will let our readers draw their own conclusions about the changes.

SG waives response to pro se IFP Marine cert petition

As might be expected, the SG waived his right to respond to the pro se IFP cert petition in Phillips v. United States, No. 07-5716, which we previously discussed here. We never successfully elicited a response as to why it was filed pro se. Can anyone enlighten us?

Sunday, August 12, 2007

Six Degrees of Cass Sunstein

A recent paper (available here) by Vanderbilt professors Paul Edelman and Tracey George takes the popular thought game Six Degrees of Kevin Bacon and applies it to legal scholarship. As the name of the paper ("Six Degrees of Cass Sunstein") would suggest, the authors look for co-authorship links in legal scholarship leading back to University of Chicago law professor Cass Sunstein.

The paper makes some attempt to establish its own importance, but it's actually more fun than useful. It identifies every Sunstein 1 (the 57 people who have co-authored articles or other publications directly with Cass Sunstein) and Sunstein 2 (the 768 people who have co-authored with Sunstein 1s). The authors invite readers to compute their own Sunstein number. Now I'm a legal practitioner, not an academic or scholar, but I actually have a Sunstein number: Sunstein 4, through the chain Sunstein - John Yoo or Bruce Ackerman [either one works -- and John Yoo is a very odd person to be in my Sunstein chain!] - Harold Koh - Detlev Vagts - me (through an article by Gene Fidell, Detlev Vagts and me in the December 2005 Army Lawyer).

This is the paper's authors' explanation of why they cast Cass Sunstein in the Kevin Bacon role of their game:

We sought to identify a legal scholar with characteristics that make it more likely that she or he is the central hub in the legal collaboration network . . . . We are looking, then, for a scholar who:
• actively collaborates with a range of scholars (lots of edges),
• publishes often and across fields (dispersion of vertexes and edges across academy),
• has achieved a high level of recognition (a nontrivial vertex), and
• will continue to co-author into the foreseeable future (a nondecaying vertex).

Based on those criteria, who would we cast in the Kevin Bacon/Cass Sunstein role if we wanted to play the game with military justice scholarship? Steve Saltzburg, perhaps? If so, what's your Saltzburg number?

Saturday, August 11, 2007

"Above all . . ." Don't Forget Grostefon

I got a good 2 minutes or so of entertainment from a recent Air Force Times' article on post-trial options. The following was the most memorable portion of the article (available here):

If you do not take the appeal to the criminal court seriously, you might miss opportunities to improve your record. You should be in contact with your appellate attorney and explain to them your side of the case. In this way, they understand your record of trial a little more than simply reading the words on the page.

Above all, you should think hard about your Grostefon submission. The case of U.S. v. Grostefon, 12 M.J. 431 (C.M.A. 1982), essentially stands for the fact that you, as the appellant, can have the Court of Criminal Appeals consider any matter you would like it to consider. This is a personal statement from you to the Court where you set out what mistakes you believe were made in your trial. This may include matters on which you and your attorney disagree.

(emphasis added). I don't think I have ever seen Grostefon placed "above all" in any context. I guess it is good to see differing views every now and then. I clicked on the link to the article's comment (singular). I believe the commenter viewed the article about the same as me, "'Military justice is to justice what military music is to music' -George Clemenceau."

Friday, August 10, 2007

The Sacramentorium adds a blogger

The Sacramentorium now has a second blogger going by "Publius." Check out his or her first post here.

Gonzalez puzzler

I am confused.

Exactly one year ago today, on 10 August 2006 (yes, that is one year ago today), NMCCA issued an opinion marked "PUBLISH" in the case of United States v. Gonzalez, No. NMCCA 200400055 (N-M. Ct. Crim. App. Aug. 10, 2006). Something was amiss with the NMCCA-to-West Publishing pipeline at the time, as we previously discussed here and here, and the decision was never published.

If you go into NKO and access the Gonzalez opinion, you get the same version as that linked above.

Now open up the opinion marked Gonzalez, 08/10/06 on the NMCCA web site's 2006 opinions page. You get a similar, though not identical, NMCCA opinion marked unpublished and dated 28 August 2006. Huh?

If you look at Gonzalez on LEXIS, you get the 28 August unpublished version of the opinion. United States v. Gonzalez, 2006 CCA LEXIS 365 (N-M. Ct. Crim. App. Aug. 28, 2006). On WESTLAW, there are two files with Gonzalez's case number. One is the 28 August unpublished opinion linked above. United States v. Gonzalez, 2006 WL 4579686 (N-M. Ct. Crim. App. Aug. 28, 2006). The other is supposed to be the 10 August Gonzalez decision, but it indicates: "Decision intended for electronic publication only. For electronic decision, see 2007 WL 4579686." The link to 2007 WL 457986 is inoperative.

So it appears that NMCCA released a to-be-published opinion in Gonzalez on 10 August 2006, then simply released a new, slightly different, and unpublished version of the same opinion on 28 August 2006 without referencing the opinion issued 18 days earlier. It also looks like the published opinion was originally put up on NMCCA's web site, but the unpublished opinion was substituted for it sometime later, but without changing the opinion's date to cover those tracks. It also appears that only the 28 August version was sent to LEXIS, but that at some point, both versions were sent to WESTLAW.

Am I missing something? Does this make sense to anyone?

Remove Quinn-Monreal from the deserter list

A year and a day after it was released, Quinn-Monreal is finally in WESTLAW as a to-be-published opinion: United States v. Quinn-Monreal, __ M.J. ___, No. NMCCA 200401632, 2006 WL 4693348 (N-M. Ct. Crim. App. Aug. 9, 2006).

Wednesday, August 08, 2007

Interesting analysis of Marcum/Don't Ask, Don't Tell

A comment in the University of Pennsylvania Journal of Constitutional Law analyzes the constitutionality of Don't Ask, Don't Tell, and argues that the Supremes should rely on CAAF's opinion in United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004), to limit the Don't Ask, Don't Tell policy. Evangelos Kostoulas, Comment: Ask, Tell, and Be Merry: The Constitutionality of "Don't Ask, Don't Tell" Following Lawrence v. Texas and United States v. Marcum, 9 U. Pa. J. Const. L. 565 (2007).

In Marcum, CAAF applied Lawrence v. Texas, 539 U.S. 558 (2003), to the military justice system. CAAF adopted a three-part test for determining whether Lawrence applies to conduct that would otherwise violate Article 125:
First, was the conduct that the accused was found guilty of committing of a nature to bring it within the liberty interest identified by the Supreme Court? Second, did the conduct encompass any behavior or factors identified by the Supreme Court as outside the analysis in Lawrence? Third, are there additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest?

Marcum, 60 M.J. at 206-07.

Before I share the Comment's conclusion with you, allow me to make two observations: (1) JO'C is a legitimate expert on the military deference doctrine; and (2) if JO'C reads this Comment, it will make him crazy.

Okay, now for the article's conclusion:

Though Congress is entitled to deference in regulating the military, the Court should not blindly accept "Don't Ask, Don't Tell" in its constitutional analysis. The Court of Appeals for the Armed Forces, which routinely must integrate the unique demands of military life, has determined that Lawrence applies in the military context when the facts of the situation satisfy a three-part test. Though the Court may lack the necessary skill to incorporate military interests in its constitutional analysis, the C.A.A.F. does not. For this reason, its holding in Marcum should be viewed by the Court as highly persuasive.

9 U. Pa. J. Const. L. at 593.

If I listen very closely, I'll bet I can hear JO'C scream when he reads this.

Tuesday, August 07, 2007

SG waives right to respond in Monette

As expected, the SG has waived his right to submit a response to the pro se IFP cert petition in Monette v. United States, No. 07-5623, which we previously discussed here.

More on Colonel Murphy's writ

Over at the Sacrementorium, there's a new post shedding more light on Colonel Murphy's request for extraordinary relief from the Air Force Court. Judge Mathews the Greatest posted a comment noting that the Air Force Court's opinion is now up on the court's web site. Murphy v. Smolen, Misc. Dkt. No. 2007-03 (A.F. Ct. Crim. App. July 13, 2007).

Unfortunately, the Air Force Court, like the Navy-Marine Corps Court, issues orders in extraordinary relief cases in an extremely uninformative format. For example, counsel in the case aren't listed. I'm still wondering whether Colonel Murphy hired a civilian counsel and, if so, who. Also, the judges who rejected the claim aren't listed. The initiated probably know who is on Panel 1 of the Air Force Court, but I'm uninitiated. Perhaps the most informative portion of the order is the indication that Judge Jacobson didn't participate -- I don't know who did, but at least I know of one judge who didn't. I wonder if he was unavailable or if he recused himself -- which would hardly be an unexpected event in a case involving a senior Air Force officer who spent his career as a judge advocate.

Pro se Marine Corps cert petition

On 6 August, the Supreme Court docketed a pro se IFP cert petition filed by a Marine on 25 June 2007. Phillips v. United States, No. 07-5716. CAAF rejected his challenge to the execution of contingent confinement at United States v. Phillips, 64 M.J. 410 (C.A.A.F. 2007), and denied reconsideration on 5 June 2007. Can any of our legion of sea service posters -- living or dead -- explain why this cert petition was filed pro se IFP?

Monday, August 06, 2007

NMCCA partially terminates its UA

Every Sunday, I used to read Dave Barry's column in the Washington Post Magazine. I miss those days. One thing Dave Barry often did was refer to some item that an "alert reader" had sent to him. While I'm no Dave Barry, I am happy to report that I have at least one alert reader. An alert reader sent an e-mail observing that there are no Navy-Marine Corps Court of Criminal Appeals decisions in volume 64 of the Military Justice Reporter. None.

That situation no doubt arises from the 15 NMCCA opinions over 2006 and early 2007 that initially didn't make it into the Military Justice Reporter, as we previously observed here.

Now I have some good news and some bad news. The good news is that 13 of the 15 missing opinions have now been published in volume 65 of the Military Justice Reporter. The bad news is that one -- United States v. Gonzalez, No. NMCCA 200400055 (N-M. Ct. Crim. App. Aug. 10, 2006)-- transmogrified from a published opinion into a not reported opinion on WESTLAW and another -- United States v. Quinn-Monreal, No. NMCCA 200401632 (N-M. Ct. Crim. App. Aug. 9, 2006), is still completely UA. Has enough time passed that we should declare it a deserter?

Saturday, August 04, 2007

April fools!

This week, the April issue of the Army Lawyer was placed on the TJAGLCS web site.

Two articles -- both by Army trial judiciary judges -- will be of interest to military justice practitioners. The first is Keys to a Successful Direct Examination, by LTC Robert M. Twiss of the 4th Judicial Circuit at Fort Lewis, Washington. Army Law., April 2007, at 28. As the article's name suggests, it's a how-to trial advocacy guide to direct examinations -- and a relatively detailed guide, weighing in at 14 pages.

The second is a brief look at sentencing evidence of rehabilitative/retention potential by LTC Roger E. Neil of the 2nd Judicial Circuit at Fort Stewart, Georgia. Rehabilitative Potential and Retention Evidence, Army Law., April 2007, at 42. The article offers an evidentiary foundation for introducing information of rehabilitative/retention potential.

All things reconsidered revisted -- again

A recent discussion thread in comments to a post suggested that the various appellate government divisions' high rate of seeking reconsideration of CAAF cases that they lose (26.3% this term) may be tied to attempting to convince the SG to seek cert. If so, the government's success rate with the SG is comparable to the success rate of its reconsideration petitions. Since the Military Justice Act of 1983 established the Supremes' statutory cert jurisdiction over CMA/CAAF's decisions, the SG has sought cert to review a CAAF decision exactly twice -- once in Clinton v. Goldsmith and once in United States v. Scheffer. The Supremes granted cert in Clinton v. Goldsmith on 2 November 1998, 525 U.S. 961 (1998) (order), so it's been about 9 years since a military appellate government division has convinced the SG to seek cert.

Interestingly, it appears that in neither Scheffer nor Goldsmith did the Air Force Appellate Government Division seek reconsideration at CAAF.

As we have seen, this term the various appellate government divisions sought reconsideration in 5 of the 19 cases they lost at CAAF. The period for seeking cert has already expired in three of those cases (McAllister, reconsideration denied 6 Feb, 64 M.J. 428 (C.A.A.F. 2007); Tate, reconsideration denied 22 Feb., 64 M.J. 441 (C.A.A.F. 2007); Brooks, reconsideration denied 21 March, 65 M.J. 12 (C.A.A.F. 2007). The two cases in which CAAF most recently denied the government's requests for reconsideration -- Gardinier and Lewis -- are still within the SG's 90-day window to seek either cert or an extension of the period for seeking cert.

H.R. 3174 update

There are now seven co-sponsors of H.R. 3174, the Equal Justice for Our Military Act. Maybe the No Man and I can figure out a way to create a thermometer on the new CAAFlog web site to track the bill's progress toward the 218 needed for a majority of the House of Representatives. Adding sponsor Representative Davis to the 7 co-sponsors means the bill is already more than 3% of the way there!

Unfortunately, none of the current co-sponsors is on the House Judiciary Committee, the committee to which the bill has been referred.

Here is a list of the current co-sponsors:

Rep. Neil Abercrombie [HI-1]
Rep. Gary L. Ackerman [NY-5]
Rep. Rodney Alexander [LA-5]
Rep. Julia Carson [IN-7]
Rep. David Loebsack [IA-2]
Rep. Carol Shea-Porter [NH-1]
Rep. Ike Skelton [MO-4]

CAAF orientation session for newly reported appellate counsel

CAAF has posted an announcement on its web site that it will hold an orientation session for newly reported appellate counsel at 10 a.m. on 6 September. One of those newly reported counsel will be -- me.

Update pending

I have many posts that I hope to make later today. But this afternoon I'm off to take my daughter to see Underdog. Maybe I'll post a review later today. Okay, probably not.

Thursday, August 02, 2007

All things reconsidered revisited

We recently saw that of the 19 cases it lost at CAAF last term, the government sought reconsideration in 4 of them. Make that 5. Today's daily journal update included a denial of Army GAD's reconsideration request in United States v. Lewis, 65 M.J. 85 (C.A.A.F. 2007). United States v. Lewis, __ M.J. ___, No. 07-5002/AR (C.A.A.F. Aug. 1, 2007).

So the government sought reconsideration in more than a quarter of the cases it lost last term. And Army GAD sought reconsideration in half of the cases it lost. (Reconsideration sought in McAllister, Gardinier & Lewis; no reconsideration sought in Wise, Albaaj & Resch.)

The various appellate government divisions' reconsideration practice has been both frequent and fruitless. CAAF denied all five of the government's reconsideration petitions.

The Air Force Court posted 2 published opinions today

The first is United States v. Pariso, __ M.J. ___, No. ACM 36671 (A.F. Ct. Crim. App. July 31, 2007).

Senior Airman Pariso was found guilty of using the prescription drug Tylenol III. The providence inquiry indicated that he injected melted Tylenol III tablets with a syringe, as a result of which he stopped breathing before a visit to the emergency room successfully revived him. He was sentenced to a BCD, confinement for 60 days, and reduction to E-1.

The defense raised two issues on appeal: (1) whether the providence inquiry invalidated the plea because Pariso indicated that he or his fiance may have obtained the Tylenol III with a prescription; and (2) whether the sentence was inappropriately severe. Held: no and no.

During the Care inquiry, Pariso indicated that the prescription would not have been recent and that he didn't use the Tylenol III in the intended manner. He also admitted that he had no authority to use the Tylenol III and that he wasn't using it for medical purposes. The Air Force Court held:

[A] service member who knowingly uses a controlled substance without legitimate medical reason for doing so has wrongfully used the drug in the same way a physician who knowingly prescribes a controlled substance without a legitimate medical reason is guilty of "wrongfully" dispensing the substance in violation of the [Controlled Substances Act, 21 U.S.C. 801, 802, 841(a)(f)]. Once an individual uses the controlled substance for some purpose other than medical treatment, the use is no longer legally justified or authorized and is wrongful.

Id., slip op. at 4.

The Air Force Court rejected the sentence appropriateness challenge in a single sentence supported by a citation to United States v. Healy, 26 M.J. 394, 395 (C.M.A. 1988). That page of Healy features a discussion of the distinction between "justice" and "clemency" -- which was presumably the proposition that the Air Force Court had in mind when citing it.

The second is United States v. Gatewood, __ M.J. ___, No. 36722 (A.F. Ct. Crim. App. July 30, 2007) (per curiam).

Gatewood involves an unsuccessful plain error challenge to the propriety of the TC's closing argument. "In the first statement complained of by the appellant, trial counsel referred to the 'Core Values' of the Air Force (integrity, service before self, excellence) and briefly described how the appellant failed to live up to them." Id., slip op. at 2. I must admit to being somewhat relieved that the court determined that this was proper argument, since a few years ago I whipped out a Marine Corps Values card while making my closing argument as recorder in an admin discharge board.

"The second and third statements made by trial counsel the appellant asserts were improper referred to the appellant's pregnancy and, essentially, her fitness as a mother." Id., slip op. at 2-3. The court essentially ruled that the defense had opened the door to such argument by basing much of its E&M case on Airman Basic Gatewood's responsibilities as a mother and the adverse effect that confinement would have on her "relationship with her soon-to-be daughter." Id., slip op. at 3.

Wednesday, August 01, 2007

The Pro Se and the In Forma Pauperis (with apologies to Mark Twain)

The Supreme Court's web site posted a new cert petition today. United States v. Monette, No. 07-5623. Guess which service it arises from. Here's a hint: it's a pro se petition.

The pro se cert petition was actually filed on 21 May 2007, but was apparently only recently docketed, as indicated by the SG's 30 August reply date (which will, no doubt, be waived long before then).

Let's look at Monette's history, shall we?

Chief Warrant Officer 2 Monette pled guilty to and was convicted of 16 -- count 'em, 16 -- specifications of violating Article 134: 4 indecent acts with a child; 2 indecent liberties with a child; 2 kidnappings; 4 violations of the CPPA; 1 inducing female under 12 into producing child porn; 1 making, shipping or transporting child porn; and 1 knowingly receiving child porn. Judge Trimble sentenced him to a dismissal, confinement for 10 years, and total forfeitures. The CA wiped out the forfeitures but approved the remainder of the sentence.

ACCA originally reviewed Monette in an opinion issued on 16 March 2005. United States v. Monette, No. ARMY 20020088 (A. Ct. Crim. App. March 16, 2005). ACCA held that under CAAF precedent applying Ashcroft v. Free Speech Coalition, 535 U.S. 234, 258 (2002), it couldn't affirm the convictions under Article 134(3) for 5 of the specs involving child pornography, but held that it could affirm findings of guilty under Article 134(1) and (2) instead.

Over Judge Crawford's dissent, CAAF disagreed. United States v. Monette, 63 M.J. 426 (C.A.A.F. 2006) (summary disposition). CAAF set aside the findings of guilty to those 5 specs and authorized either a rehearing on those specs or dismissal of those specs followed by reassessment of the sentence or a rehearing on the sentence based on the remaining findings of guilty.

On remand, ACCA chose to dismiss those 5 specs and reassess the sentence. United States v. Monette, No. ARMY 20020088, slip op. at 3 (A. Ct. Crim. App. July 25, 2006).

In choosing to reassess rather than order a rehearing, ACCA made the obligatory citation to the abomination of military law (United States v. Sales, 22 M.J. 305, 307 (C.M.A. 1986)), and then reasoned: "Due to the egregiousness of appellant’s conduct, we are secure in our position that the military judge would have imposed a sentence of a certain magnitude had appellant pleaded guilty to, and been convicted of, only the remaining charges and specifications." Id., slip op. at 4. ACCA then somehow purported to divine that even without the 5 child pornography specs it set aside, the military judge would have imposed a sentence of at least a dismissal and confinement for 9 years and 10 months, id., slip op. at 5 -- 2 months less than he actually adjudged. How ACCA knew that the military judge imposed no more than 2 months of confinement for the 5 child pornography specs, I have no idea.

When an accused thinks he has the power to "read [people's] minds," it's taken as a sign of mental disorder. See United States v. Clark, 62 M.J. 195, 196 (C.A.A.F. 2005). But when military appellate judges think they can read the trial judge's mind, it's called "reassessment" rather than crazy talk. I can only assume that Judge Trimble and ACCA are part of the Psychic Friends Network.

After ACCA demonstrated its psychic powers, in keeping with its policy that it will open the door to the Supreme Court by granting review in a case that it previously remanded, CAAF granted Monette's petition and summarily affirmed. United States v. Monette, 64 M.J. 440 (C.A.A.F. 2007) (summary disposition).

The next time Monette's case pops up on the radar screen is when he filed his pro se petition at the Supremes.

Now I'm not suggesting that a cert-petition-length version of my screed against Sales would have a prayer of being granted -- of course it wouldn't -- but would it be frivolous to file a cert petition attacking ACCA's reasoning? What if we applied CAPT Philpott's $10,000 test to such a cert petition? I suppose that if I were in private practice and Monette dumped $10,000 on my desk to file a cert petition in his case, first I'd wonder how he got out of Leavenworth. Then I would advise him to save his money, letting him know that there is about at 0.001% chance that the Supremes would grant cert in his case. But what if Monette then told me that Ruppert Murdoch just bought his controlling share of the Psychic Friends Network for $5 billion, money is no object, and that he wanted to take that 1-in-100,000 chance? Would I feel like I could ethically seek cert on his behalf without offending the Supreme Court's rule against frivolous filings? You bet. Well, fortunately for everyone at the USDB, they are represented by lawyers paid by an employer with pockets even deeper than Mr. Murdoch's. So the answer to CAPT Philpott's $10,000 test is: file a cert petition. What is the justification for the opposite answer?