Monday, November 19, 2007

Challenge to former military judge serving as SJA

Here's one you don't see every day. The issue in United States v. Moorefield, __ M.J. ___, No. 07-0503/MC (C.A.A.F. Nov. 16, 2007), is: "WHETHER THE STAFF JUDGE ADVOCATE WAS REQUIRED TO RECUSE HIMSELF FROM INVOLVEMENT IN APPELLANT'S CASE ON THE BASIS OF JAGINST 5803.B, RULE 1.12, OR OTHER LAW, REGULATION OR DIRECTIVE. IF SO, WHETHER APPELLANT WAS PREJUDICED BY THE STAFF JUDGE ADVOCATE'S FAILURE TO DO SO." (JAGINST 5803.1C is the Department of the Navy's Rules of Professional Conduct regulation; I assume that's what the granted issue has in mind.)

Rule 1.12(a) provides: "Execept as stated in subparagraph c below [which deals with arbitrators], a covered USG attorney shall not represent anyone in connection with a matter in which the covered USG attorney participated personally and substantially as a judge or other adjudicative officer, arbitrator, or law clerk to such a person, unless all parties to the proceeding consent after disclosure."

While neither the Navy-Marine Corps Court's web site nor LEXIS includes the unpublished per curiam opinion in Moorefield, it is available on NKO. United States v. Moorefield, No. NMCCA 200600162 (N-M. Ct. Crim. App. Dec. 19, 2006) (per curiam). And its absence from public web sites is a shame, because it's quite interesting. Here's the lower court's treatment of an issue closely related to that which CAAF has now granted:

Military Judge as Staff Judge Advocate

The staff judge advocate in the appellant's present case, Colonel (Col) R. Kohlmann, USMC, presided five years earlier, as the military judge over a special court-martial of the appellant in which the appellant had been acquitted of all charges. The appellant now claims for the first time on appeal that Col. Kohlmann's participation as staff judge advocate in the present case is in contravention of RULE FOR COURTS-MARTIAL 1106(b), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2005 ed.), which states "[n]o person who has acted as . . . military judge . . . may later act as a staff judge advocate . . . to any reviewing authority in the same case." The appellant also claims that Col Kohlmann's participation was in contravention of 28 U.S.C. 21 § 455 (Disqualification of justice, judge, or magistrate judge) which requires disqualification of a federal judge where he has personal knowledge of disputed evidentiary facts concerning the proceeding. We disagree. The appellant presents no evidence that the previous court-martial which resulted in acquittal is the same case that he is now appealing. Further, the appellant provides no authority for his implied proposition that federal regulations pertaining to the conduct of federal judges apply to staff judge advocates. Finally, it is abundantly clear from a plain reading of R.C.M 1106(b) that the Rule fully anticipates that military judges will later serve as staff judge advocates, and further informs us that they are only prohibited from doing so in cases where they actually served as the military judge. This assignment of error is wholly without merit.[n1]

[n1] We note with displeasure the following unsupported claim in the appellant's brief and assignments of error. "[The military judge] studied the Appellant's history . . . in non-public court-martial sessions. . .". Appellant’s Brief at 2. Such an outrageous claim by an appellate defense attorney simply must be supported in fact or it will be deemed frivolous, as it has been here.


Anonymous said...

Gotta love it when NMCCA states the AE is "wholly without merit" and then CAAF grants review. Apparently, they disagree.

Anonymous said...

Isn't it possible that appellate counsel simply corrected the deficient record that the NM court voiced displeasure about? I applaud the NM Court for at least writing on this issue and providing an important learning point for counsel (which may get them double-tapped at CAAF).

Anonymous said...

Anonymous #1: Good post. To engage you and other readers on some of your intriguing suggestions... First, you seem to excuse ("applaud") NMCCA's claim that the issue in this case is "wholly without merit," despite the CAAF grant. Unfortunately, NMCCA sometimes conflates its strong disagreement with a claim with over-done language. CAAF is telling us that the issue does have some merit - at least that the issue is debatable. But you seem to imply that NMCCA was somehow doing yeoman's work by "at least writing" about an issue. This seems unnecessarily patronizing. For your point to be valid, it presupposes that the underlying defense claim is somewhat frivolous. But NMCCA is not doing anything more than its duty if the legal issue is a reasonable one. Defense counsel are supposed to raise colorable claims on behalf of their clients, not just raise "slam dunks" where the defense can cite "X U.S.C. Y," or "United States v. Z," for the definitive rulling on issue "A." So your point about NMCCA providing a "learning point" for counsel seems misplaced. It could be, on the other hand, that NMCCA is about to be on the receiving end of a "learning point." Second, your parenthetic point seems to be saying that CAAF may have taken the case merely to reinforce("double-tap") NMCCA's slap-down of counsel that this was a frivolous argument. ...What??? You should clarify what you meant because I don't think CAAF wastes its time with such pedantic and didactic exercises. I know there will be observers who will claim that there are a variety of reasons for CAAF to grant review, but is sadism really one of them?

Anonymous said...

Anonymous #2. To clarify, I don't know if the record has changed from the pleadings at the CCA to CAAF. However, I merely raise the possibility that the NM Court's decision prompted appellate counsel to provide additional support for the issue. If that is the case, then the CCA opinion benefited appellant and the military justice system as a whole.

Anonymous said...

Anonymous #1: (Are you a CCA judge? - just kidding) Your point is a seemingly gentle one - but I think it is mistaken. Neither an appellant nor "the system" benefit when an appellate court slaps a misleading label, "FRIVOLOUS," on an AE that is clearly not frivolous. You seen to be saying, "well, it made the counsel TRY HARDER, and that's better for everybody." Your premise is misplaced because it sounds a little like the parent who beats his child to make them "stronger." Once NMCCA is aware of an issue (a potential problem below), its Art 66 duties come in to full force and those duties stand independent of the quality of advocacy. Quality appellate review should not have to wait for CAAF. NMCCA is not restricted - and should not be constrained - to write the judicial equivalent of a "reply brief" to the 4-corners of what the appellant raises. The time dedicated to scolding counsel in an opinion for raising a purportedly "frivolous" AE would have been perhaps better spent researching and thinking about the issue.

John O'Connor said...

The practical issue here might be that Col Kohlmann didn't even remember presiding over the accused's prior court-martial, and if he was acquitted its entirely possible that you wouldn't perceive the prior court-martial from a perfunctory review of the accused's service record.

I prosecuted a SNCO who had been tried by court-martial (and acquitted) five years earlier and there wasn't a single person in the command who knew about the prior court-martial. If you put a gun to my head, I couldn't name all the contested courts-martial I tried, and judges have more contested trials than counsel.

If the accused didn't ask Col Kohlmann to recuse, but knew of his prior participation such that it could bwe raised as an appellate issue, I would be inclined to find waiver.

Anonymous said...

John O' Connor raises a great point about the practical issue of memory. But, maybe the lack of memory would not excuse a conflict. Other kinds of conflicts just require better record-keeping - prompting firms to keep a database, for example. I guess its time for MJs to start taking notes. (Hell, CO's have to carry around old FITREPS on their subordinates for years). Not sure why Morefield would have known who the SJA was - did he? - most clients usually only see the prosecutor and have no real interaction with the SJA (just their counsel - by paper). Does anybody know if Moorefield actually knew who the SJA was?

Guert Gansevoort said...

JOC, is not the real issue here one of appearances rather than one of faded memories? The famous line from Offutt v. United States, 348 U.S. 11 (1954), one of the seminal cases involving judicial disqualification, is that justice must satisfy the appearance of justice. Could a judge preside over a matter in which he was previously involved so long as he promised that he could not recall the matter and could be fair? Further, why would you assume that Sergeant Moorefield read the Article 34 advice, recognized the name of his former military judge, and elected not to raise the issue? I have never been a military defense counsel, but I suspect that one does not spend time reviewing routine documents like Article 34 advice in the weeks leading up to trial. While I agree with much of what you have to say of waiver JOC, waiver should not be found here.

I agree with CAAFlog that this is an interesting issue. And I agree with the learned Bill Cassara's remarks above. To my knowledge, no judge on the NMCCA has ever served as an appellate defense counsel, and I doubt that any of them has ever served as an appellate government counsel. While a small minority of these judges are some of the brightest minds in the Navy and Marine Corps, and are experienced military justice practitioners, the vast majority of the judges on the NMCCA have little or no military justice experience since Miranda was decided. And yet they cast about words like "meritless," and more importantly "frivolous", as if they were writing eighth grade creative writing papers instead of legal opinions. I have also been told that several judges view defense counsel merely as a "resource" instead of advocates.

The appellate defense counsel in this case, LT MacKinnon, certainly made a name for himself by raising novel issues on appeal. And he paid a heavy personal price in several cases where the NMCCA accused him of ethical violations similar to the court's accusations in Moorefield. But new law, or new interpretations of old precedent, are created when advocates like LT MacKinnon raise issues before courts who are willing to consider issues other than whether or not the military judge abrogated explicit constitutional guarantees or well-established supreme court precedent.

Were I ever to be raised from the dead and placed on trial, I hope only to have an advocate at my side. The "resource" will hopefully still be working in the judge's chambers as a clerk, instead of at counsel's table.

John O'Connor said...


My point is more one of practicalities. Marine Corps military judges hear hundreds of cases a year, and probably between one and two dozen contested cases a year. I would think that an SJA who had served as an MJ on a prior court-martial, and realized it, would probably recuse himself from the Article 34 advice. Not because he had to, but because it is consistent with O'Connor's Law #1, don't do something stupid to create an appellate issue when there is an easy way to avoid it.

Your standard would be one where an SJA would have to keep a list of every case thatever came across his desk as a judge, TC, DC, and maybe even at legal assistance, in order to ensure that his path had never crossed the accuseds. Frankly, I don't even see that there is a real appearance issue, particularly when, as I suspect is probably the case, the SJA had no recollection that this accused had ever been before him (if that assumption is not accurate, then the analysis changes somewhat).

I'm guessing the accused knew that Col Kohlmann was his MJ from the earlier court-martial. If he didn't, how did that issue get raised on appeal? Who else would have been the one to know that? My only point is that the accused, who probably only had one prior court-martial (at least we'd hope) is in a far better position to make the connection of his prior dealings with Col Kohlmann than is an SJA who has dealt with probably hundreds of courts-martial as an MJ and advocate. An accused who knows of this and doesn't complain at trial, when the issue can be properly vetted and rectified, acts at his peril and, in my mind, should be found to have waived the issue.

On your ethics point, Guert, I agree with you that an accused should want someone who will be a bare-knuckled advocate. That said, there are limits to permissible advocacy, including the notion that you can't just make up stuff not supported by the record, particularly when it impugns someone else. Not having seen the record here, I'm not saying that happened, but I do believe as a general proposition that Rule 11-type rules and ethics notions do properly cabin in what even a true "advocate" can do or say.