Wednesday, December 31, 2008

Top 10 military justice stories of 2008 -- #4: The President's approval of a military death sentence

On 2 July 1957, President Eisenhower approved Army PFC John A. Bennett's death sentence for the rape and attempted murder of an 11-year-old Austrian girl. On 13 April 1961, PFC Bennett was executed. For 51 years after President Eisenhower acted, no President approved a military death sentence -- a statutory prerequisite for the military to carry out an execution.

President Bush ended that half-century hiatus when he approved the death sentence of Army Spec 4 Ronald A. Gray in July. The Army then set a 10 December execution date. The Army planned to carry out the execution at the civilian federal death chamber at Terre Haute, Indiana, but using its own personnel. Then Gray sought a pre-habeas petition stay of execution from the United States District Court for the District of Kansas, which Senior Judge Rogers granted. Judge Rogers turned down the United States' reconsideration request and entered a scheduling order under which Gray's habeas petition is due on 1 April 2009.

This development is significant not only on its own terms, but also as an indication that the death penalty had not, as one commentator had argued, "effectively been abolished in the military justice system." The launching of a habeas challenge to an approved death sentence probably also represents the greatest hope to bring consistency to the various circuits' scopes of review that they apply when conducting collateral reviews of court-martial convictions, a problem that we discussed all the way back in the summer of 2007 here and, even earlier, here, where we noted this quotation from a brief by the Solicitor General:

As one court of appeals recently noted, since this Court's decision in [Burns v. Wilson, 346 U.S. 137 (1953),] "[t]he degree to which a federal habeas court may consider claims of errors committed in a military trial has * * * been the subject of controversy and remains unclear." Brosius v. Warden, U.S. Penitentiary, 278 F.3d 239, 242 (3d Cir.) (Alito, J.), cert. denied, 537 U.S. 947 (2002).
Brief for the Respondents in Opposition, New v. Gates, No. 06-691, at 12 (March 2007).

On the other hand, here's an interesting (but no doubt heterodox) law review article in which Professor Amanda Frost of AU's Washington College of Law argues that SCOTUS gives too much weight to resolving circuit splits when deciding which cases to grant and that it should "adjust its case selection process to de-emphasize uniformity in favor of other values." Amanda Frost, Overvaluing Uniformity, 94 Va. L. Rev. 1567, 1630-39 (2008).

We'll continue to follow the habeas litigation in Gray in 2009.

Happy New Year, everyone! We'll post #3 in the top 10 list next year -- er, tomorrow.

December 2008 CAAFlog’s busiest month.

I believe that CAAFlog had more posts in December 2008 than in any other previous month. No Man, can you confirm that? Is CAAFlog getting more popular or do the good Colonel and No Man just have a lot of time on their hands?

Tuesday, December 30, 2008

JSC drops enumerated Article 134 child pornography offense from its 2008 final proposed MCM amendments

Yesterday's Federal Register includes the Joint Service Committee's post-public comment revisions to its 2008 review of the MCM. Here's a link.

We previously discussed the JSC's proposed amendments, which included creating an enumerated Article 134 offense specifically covering child pornography. That idea has been shelved, at least for now. As the JSC noted yesterday:

The JSC considered the public comments and, coupled with the United States Court of Appeals for the Armed Forces recently hearing arguments on issues of child pornography with decisions pending, decided to withdraw the proposed addition of a paragraph addressing child pornography under Article 134 in Part IV of the MCM. The child pornography proposal will continue to be considered as part of the 2009 annual review.
The JSC went forward with its other recommendations, which included providing specific guidance concerning the availability of fines in prosecutions of civilians who are subject to UCMJ jurisidiction, revising the rules governing SJARs, and increasing the maximum authorized confinement for manslaughter of someone less than 16 years old.

Top-10 list

I'm not going to have enough time to post #4 tonight. So unless the No Man wants to put up #4 (which he's more than welcome to do), I'll try to post #4 tomorrow night.

NMCCA issues two published opinions

NMCCA released two published opinions today, both authored by Senior Judge Geiser. Neither of them is yet on NMCCA's web site, so I've posted them here and here.

Bagstad is easily the more interesting of the two. United States v. Bagstad, __ M.J. ___, No. NMCCA 200602454 (N-M. Ct. Crim. App. Dec. 30, 2008). In Bagstad, one of the detailed members -- a Marine Corps captain -- wrote the fitrep of another member -- a gunnery sergeant. The trial defense counsel lodged an implied bias challenge to the captain, arguing that he writes another member's fitrep, that the CA (the CO of a Combat Service Support Group) is his reporting senior, that he and the CA discussed military justice and the CA's view of military justice, and that the captain was reluctant to speak about his conversation with the CA. The military judge had asked for and received assurances from the gunny that he wouldn't be inhibited by the captain and from the captain that he wouldn't feel undermined if the gunny disagreed with him. The military judge denied the challenge to the captain, in the process disagreeing with the defense's characterization of the captain's discussion with the CA. The defense then used its peremptory challenge against another enlisted member.

That's where things get interesting. The panel was left with three members. Two-thirds of those members (the percentage necessary to convict) were in a direct reporting relationship. The appellate defense counsel in the case (Capt Burgos) alertly noted that that's awfully similar to the situation in United States v. Wiesen, 56 M.J. 172 (C.A.A.F. 2001), where CAAF held that the military judge erred by denying a defense challenge for cause against a colonel who was in the direct reporting chain of a sufficient number of members to control the case's outcome.

But, held NMCCA, this case is sufficiently distinguishable from Wiesen to result in a different outcome. NMCCA reasoned:

Although we are faced with a panel containing a senior-subordinate relationship comprising two-thirds of the panel membership, as in Wiesen, the contextual facts are quite different. First, this case involves a [challenge to a] company-grade officer as opposed to [Wiesen, which involved a challenge to] a senior field-grade officer. This difference alone serves to significantly diminish a knowledgeable perception that military deference to a senior officer would play a role in deliberations. We further note that GySgt Walston had seven more years of experience in the Marine Corps than Capt Stojka and was three years his elder. This inversion of military and life experience between the senior and subordinate does not appear to have been the case in Wiesen. This inversion of experience also significantly diminishes any knowledgeable perception that GySgt Walston would blindly follow his supervisor's lead. Moreover, the other panel member, 1stSgt Nguyen, like GySgt Walston, was a senior noncommissioned officer (NCO) with considerable experience; he was a veteran of both the conflicts in Afghanistan and Iraq, and had 14 years of service in the Marine Corps. The camaraderie between, and respect and deference for, senior NCO's, is significant. The presence of two experienced NCO's on the panel further weakens any reasonable perception that GySgt Walston would be improperly influenced by Capt Stojka's supervisory position.

Further, unlike Wiesen, which featured multiple subordinates, the instant case reveals only a single senior-subordinate relationship. The six senior-subordinate relationships in Wiesen included three lieutenant colonels that a knowledgeable public might reasonably perceive as competing for promotion. This fact alone creates a source of potential pressure for the subordinates to attempt to curry favor from their superior. No such competitive grouping exists in the instant case.
Bagstad, No. NMCCA 200602454, slip op. at 5.

Today's other published NMCCA opinion, United States v. Trew, __ M.J. ___, No. NMCCA 200800250 (N-M. Ct. Crim. App. Dec. 20, 2008), involves the deathly boring Walters line of cases. See United States v. Walters, 58 M.J. 391 (C.A.A.F. 2003). That line of cases provides that a CCA may not affirm a finding of guilty where a divers occasions spec has been changed to a single occasion spec unless the record makes clear what single occasion resulted in the conviction. In Trew, a military judge made comments after announcing findings indicating that she found the accused guilty of one battery rather than divers batteries. NMCCA found that in the peculiar context of this case, it was clear which occasion she was referencing, thereby delivering the case from Walters' clutches (I'm paraphrasing).

Halftime report

The Terps are up by 14 in the Humanitarian Bowl.

Today turned out to be a busy news day. We learned of an announcement about the MCM in yesterday's Federal Register and NMCCA released two published opinions today.

More details after the game.

Monday, December 29, 2008

Top 10 military justice stories of 2008 -- #5: Two pro-defense military death penalty outcomes -- Martinez and Walker

This is a dog-bites-man story, since its significance lies in its reinforcement of long-standing trends.

In one of the highest profile courts-martial of the year, Army Staff Sergeant Alberto Martinez was completely acquitted in a capital fragging case tried at Fort Bragg. The verdict was returned on 4 December.

Martinez was the 49th known capital court-martial tried under the current military death penalty system. It is one of three acquittals. One of the other two occurred last year.

Of the 49 capital courts-martial tried under the current system, just 15 (a little more than 30%) have resulted in adjudged death sentences.

2008 also saw the 10th military death sentence complete direct appeal. In United States v. Walker, 66 M.J. 721 (N-M. Ct. Crim. App. 2008), the Navy-Marine Corps Court set aside one of the two premeditated murder convictions as well as the death sentence, which had been adjudged in July 1993. The reversal arose because the military judge erroneously denied a defense continuance request to allow sufficient time for a substitute expert witness to prepare to testify after a previous expert witness engaged in unethical conduct that precluded his testimony.

In a testament to the quality of the opinion, which was written by Senior Judge Wagner, the Judge Advocate General of the Navy didn't certify the case to CAAF.

Of the ten death sentences that have completed direct appeal, Walker's is the eighth to be reversed. Now that math is easy even for me: an 80% reversal rate. Another three military death penalty cases remain on direct appeal. For comparison purposes, a 20-year study of state death penalty systems conducted by Professor James Liebman of Columbia Law and two of his colleagues found that Wyoming's 67% direct appeal reversal rate was the highest while the national average was a 41% direct appeal reversal rate. Unlike most state systems, however, in the military issues like IAC and discovery violations that depend on extra-record evidence are typically raised on direct appeal. In most states, such issues are raised in a separate post-conviction proceeding that starts at the trial level, where evidence supporting such claims can be more easily developed and presented. So the military justice system's direct appeal reversal rate is probably best analogized to state direct appeal plus post-conviction reversal rates. Combining those two statistics, Wyoming again has the highest reversal rate at 78% while the national average is approximately 47%. So the military's capital reversal rate is high compared to state death penalty systems.

2009 will likely see much more trial-level capital litigation, with a capital court-martial of retired Master Sergeant Timothy B. Hennis slated for trial at Fort Bragg and retrials or resentencing possible in four of the capital cases that have been reversed on appeal.

Tomorrow's #4 military justice story of 2008 provides the man-bites-dog counterpoint to today's dog-bites-man story.

[DISCLAIMER: I was one of LCpl Walker's appellate defense counsel.]

CAAF trims oral argument calendar

The empty 13 January argument date has been dropped from CAAF's oral argument calendar.

Military Justice Top 10 Stories of 2008--in Boulder, Colorado

Caught you Top 10 watching, didn't I? The Lance Corporal Lance Hering case made the Boulder Daily Camera's Top 10 news stories of 2008, just thought you should know since our Top 10 list is getting punched about for its alleged lack of substance---which is hogwash. It's a Top 10 list, not a Harvard Law Review piece!

Sunday, December 28, 2008

A CAAFlog contest: who will write the Supremes' Denedo opinion?

Here's a new CAAFlog contest: who will write the opinion of the Court in Denedo? Predictions will be accepted until 1700 EST on Friday, 9 January 2009 or until all available possibilities are taken, whichever comes first. In the event of a tie, the first poster to name the author Justice will win. The winner will receive a CAAFlog t-shirt.

Here's some historical context. Four of the Supremes' eight cases reviewing CAAF/CMA decisions were written by justices no longer on the Court. (Chief Justice Rehnquist wrote for the Court in Solorio, Weiss, and Ryder while Justice O'Connor wrote for the Court is Davis.) Justice Kennedy wrote for the Court in Loving. Justice Scalia wrote for the Court in Edmond. Justice Thomas wrote for the Court in Scheffer. And Justice Souter wrote for the Court in Clinton v. Goldsmith.

Top 10 military justice stories of 2008 -- #6: A military judge rules that the new Article 120 is unconstitutional

As explained by Major Howard H. Hoege III's interesting but hideously flawed Army Lawyer article arguing that the new Article 120 is unconstitutional, the new Article 120 traces its roots to a congressional statute requiring DOD to report back to Congress with proposals to modernize the military's sexual assault laws. Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005, Pub. L. No. 108-375, § 571, 118 Stat. 1811, 1920-21 (2004). DOD responded by "strongly recommend[ing] no change to either the UCMJ or the MCM, arguing that case law had developed the UCMJ and the MCM to a point where any form of sexual assault could be prosecuted under the UCMJ." Major Howard H. Hoege III, "Overshift" The Unconstitutional Double Burden-Shift on Affirmative Defenses in the New Article 120, Army Law., May 2007, at 2, 3 n.16. But DOD also dutifully presented Congress with six options and recommended Option 5 if Congress were to change the existing statutory scheme. Id. "Congress ultimately drafted the new Article 120, basing substantial portions of the new statute -- including the new statute's burden-shifting scheme -- on Option 5 of the DOD report." Id. at 3.

Even before the new article went into force, Major Hoege argued that it was unconstitutional. But his argument was based on a fairly egregious misunderstanding of the law. He topped off many minor errors in his article with this whopper: "While Mathews v. Eldridge was a civil case, the Supreme Court has also used its three factors to examine procedural due process challenges in criminal cases." Id. at 13 (citing Hamdi v. Rumsfeld, 542 U.S. 507, 528-29 (2004) and adding the parenthetical: "applying Mathews v. Eldridge in a criminal case"). Which led to this double whopper (or double royale for you Pulp Fiction fans): "The sum of the analysis of treating the accused's initial burden as an interlocutory matter leaves little doubt that applying the Mathews v. Eldridge factors calls for a procedural due process challenge to the new Article 120's double burden-shift." Id. at 15. Of course, Hamdi was NOT a criminal case. On the contrary, the Supreme Court noted that the case was all about whether a U.S. citizen could "be detained outside the criminal process." Hamdi v. Rumsfeld, 542 U.S. 507, 524 (2004). No court would be tempted to apply Mathews v. Eldridge in a criminal context since 1992, when the Supremes held that "the Mathews balancing test does not provide the appropriate framework for assessing the validity of state procedural rules which, like the one at bar, are part of the criminal process." Medina v. California, 505 U.S. 437, 443 (1992). And certainly no court would be tempted to apply Mathews in a military justice context since 1994, when the Supremes expressly rejected Mathews and Medina as the proper due process test in a military justice case and instead adopted a standard even more deferential than Medina's. So Major Hoege's argument clearly doesn't survive even cursory scrutiny.

Notwithstanding arguments that it is unconstitutional, the new Article 120 duly took effect on 1 October 2007. And, in due course, servicemembers allegedly violated it. Which brings us to the court-martial of Petty Officer Fairley, whose alleged offenses led Judge Raymond E. Beal II (what is it about new Article 120 critics and Roman numerals?) to hold that it is unconstitutional, though on grounds far different than those advanced by Major Hoege. We posted his ruling here. He concluded: "Congress has affirmatively shifted the burden of proof to the defendant. The result, in a case such as this one where the defendant is required to prove a critical fact in dispute, is to increase further the likelihood of an erroneous conviction." And that, concluded Judge Beal, violates the Supremes' holding in Mullaney v. Wilbur, 421 U.S. 684 (1975), requiring the prosecution to prove beyond a reasonable doubt every fact necessary to constitute the crime charged.

Following Judge Beal's ruling, the trial counsel borrowed a page from the appellate government playbook and moved for reconsideration. This led to a second ruling in the case, again holding the new Article 120 unconstitutional. We posted that ruling here.

The Government filed an Article 62 appeal in a different case that resulted in the same conclusion and that case (Crotchett) was orally argued en banc at the Navy-Marine Corps Court on 3 December, as we discussed here.

I honestly haven't studied the new Article 120 sufficiently closely to have an opinion as to whether it is or isn't constitutional. But obviously Judge Beal has studied it and carefully concluded that it isn't. Judge Beal deserves respect both for calling it like he sees it and for having the humility to decline to rewrite the statute in an attempt to fix the purported constitutional defect himself, as I've heard second-hand that some other military judges have tried to do. As Judge Beal wrote in his opinion denying reconsideration, "this court is not free to disregard any portion of the statute -- to do so would be to embark upon judicial legislation."

Of course, the system as a whole benefits from Judge Beal throwing a flag on the new Article 120 since this will result in military appellate courts definitively resolving these challenges more quickly than would have occurred if they were addressed only in the normal course of review after servicemembers were convicted under the new statute. That would have led to a number of convictions that could be endangered by a pro-defense ruling on appeal. The number of potentially affected cases will be far smaller because the case expeditiously went to NMCCA on an Article 62 appeal -- and will, in all likelihood, continue on to CAAF regardless of which side prevails at NMCCA.

So even though we don't yet know whether his ruling will ultimately stand or fall, Judge Beal's invalidation of the new Article 120 ranks as one of the top-10 military justice stories of 2008.

This week in military justice -- 28 December 2008 edition

This week at the Supremes: We know of no anticipated military justice developments at the Supreme Court this week. If I calculate correctly, the SG's merits brief in Denedo is due on Friday, 9 January 2009.

This week at CAAF: CAAF has no oral arguments this week. CAAF will hold its first oral arguments of the new calendar year on Monday, 12 January. Of course, CAAF could release opinions and/or grants of review this week. If so, we'll let you know. CAAF has scheduled oral arguments on 12 January, 3 February (Project Outreach), 5 February (Project Outreach), and 9 February. CAAF has empty oral argument dates still listed for 13 January and 9 February, as well as 25 and 26 February, 9, 10, 16, 17, and 31 March, and another seven days in April and May. If a petition is granted or a certificate of review is filed tomorrow, the normal briefing schedule would run on Monday, 9 March. If a petition were to be granted or a certificate of review were to be filed on Tuesday, then the normal briefing schedule would run on Thursday, 12 March. If a petition were to be granted or a certificate of review filed a week from tomorrow, the normal briefing schedule would run on 16 March. And if a petition were to be granted or a certificate of review filed a week from Tuesday, the normal briefing schedule would run on Thursday, 19 March -- past the dates of the next eight empty oral argument dates on CAAF's schedule. And CAAF currently has only five granted-but-unscheduled cases to sprinkle over those eight dates: United States v. Miller, No. 08-0580/AR (granted 9 Oct); United States v. Thomas, No. 08-0738/NA (granted 6 Nov); United States v. Gardinier, No. 06-0591/AR (granted 6 Nov); United States v. Paige, No. 08-0805/MC (granted 9 Dec); and United States v. Weston, 08-0594/MC (granted 15 Dec).

CAAF has announced eight opinions of the court so far this term. It has heard oral argument in another 18 cases that have yet to be decided. And it has those five cases still awaiting scheduling. That's 31 cases. Assuming no more cases are granted before Tuesday, 6 January and assuming that CAAF thereafter picks up the grant pace enough to hold two oral arguments on each of the eight argument dates from 31 March through the end of the term, that would mean that CAAF would issue a total of 47 opinions of the court. CAAF's web site shows the number of opinions of the court issued each year from the FY 1985 through FY 2007 terms. The smallest number of opinions of the court over that span was 55 (FY 07 term). CAAF appears in danger of undercutting that number by a fairly wide margin. Last term CAAF issued 65 opinions of the court -- a figure that appears out of reach for this term.

This week at the CCAs: There are no known oral arguments at the CCAs this week. (The Coast Guard Court appears to remain the sole CCA that doesn't post its oral argument schedule online. But it would be surprising if CGCCA were to hold an oral argument on the week of the New Year's holiday.) It's possible that one or more CCAs could issue a published opinion this week. We'll continue to monitor the CCAs to the extent that they make their opinions publicly available.

This week at the court-martial level: I'm unaware of any significant trial-level activity this week.

As always, please let us know if you're aware of any military justice developments or upcoming significant events. You can reach us at

Saturday, December 27, 2008

Top 10 military justice stories of 2008 -- #7: A third star for the Judge Advocates General

On 28 January 2008, the President signed into law Public Law No. 110-181, one provision of which authorized three-star status for the Judge Advocates General of the Army, Navy, and Air Force. In that legislation's wake, some legal maneuvering arose over what had to happen before the Judge Advocates General pinned on their third star, as we discussed here and here. Finally, on 11 December 2008, the last of DOD's two-star Judge Advocates General -- Major General Black -- was promoted to lieutenant general.

Congress's insistence that the Judge Advocates General have three-star status had nothing to do with military justice. Rather, as discussed in this column by Professor Vic Hansen, the change arose to correct a perceived imbalance between the authority of the Judge Advocates General and civilian politically appointees on issues such as detention policy, military commission rules, limits on interrogations, and Geneva Convention applicability. But there was no tension between the Judge Advocates General and civilian political appointees regarding military justice because that system is largely within the purview of the former.

Nevertheless, the elevation of the Judge Advocates General to three-star status will no doubt produce some collateral consequences for military justice. Presumably the Judge Advocates General will now win some small battles over resources and personnel that they might have lost when they sported only two stars on their collars. This is likely to arise not because they can big foot someone as a three star whom they couldn't as a two star, but rather because they will have greater access to information and decision makers as a consequence of being invited to three-star-minimum meetings and receiving other forms of enhanced bureaucratic entrée.

We'll look for signs of increased Judge Advocate General influence in 2009.

Friday, December 26, 2008

Top 10 military justice stories of 2008 -- #8: The Denedo cert grant

Military appellate courts have rarely encountered a potential exercise of authority that they thought was beyond their jurisdictional limits. Following a quiet period in the wake CAAF's SCOTUS-administered wing clipping in Clinton v. Goldsmith, CAAF has expansively interpreted its own jurisdiction in a series of divided decisions starting with Kreutzer v. United States, 60 M.J. 453 (C.A.A.F. 2005) (a case where I think Judge Crawford's dissent was right on the money), and continuing on with cases including United States v. Leak, 61 M.J. 234 (C.A.A.F. 2005), Loving v. United States, 62 M.J. 235 (C.A.A.F. 2005), and United States v. Lopez de Victoria, 66 M.J. 67 (C.A.A.F. 2008). The CCAs have also gotten into the jurisdiction grabbing business in cases like United States v. Dossey, 66 M.J. 619 (N-M. Ct. Crim. App.), motion to withdraw petition granted, 67 M.J. 43 (C.A.A.F. 2008). Even when dealing with petitions for extraordinary relief concerning military commissions -- which CAAF clearly has no jurisdiction to grant -- CAAF has rejected the petitions on bases other than dismissing them for lack of jurisdiction. See Ali v. United States, 66 M.J. 474 (C.A.A.F. 2008); al Qosi v. Altenburg, 60 M.J. 461 (C.A.A.F. 2005) -- though in both of those cases, CAAF did note the possibility that it had no jurisdiction.

This body of case law -- which appears to go in just one direction: expansive interpretation of jurisdiction -- is all the more remarkable because CAAF occasionally gives lip service to the proposition that as an Article I court, its jurisdiction is to be narrowly determined based on a strict construction of its jurisdiction-granting statutes. See Loving, 62 M.J. at 239, 244. That's not to suggest that every divided opinion in which a majority found jurisdiction is wrong. I agree, for example, with CAAF's Loving opinion. But the odds are that when a court's jurisdiction is supposed to be narrowly interpreted and a series of divided opinions applies the court's jurisdiction expansively, the dissent is right at least some of the time.

Which brings us to Denedo, which SCOTUS granted cert to review on 25 November. Denedo v. United States, 77 U.S.L.W. 3106 (2008). A kid may get away with snatching one or two pre-dinner cookies from the cookie jar. But when the kid appears to be launching a sustained campaign of pre-dinner cookie snatching, a parent is probably going to put an end to the practice. And so, CAAF's opinion in the writ of error coram nobis case of Denedo v. United States may represent one-too-many cookies. Only three times has the Solicitor General ever asked the Supreme Court to review a CAAF/CMA opinion: United States v. Scheffer, Clinton v. Goldsmith, and United States v. Denedo. All three times, the Supremes agreed to hear the case. And in the first two instances, the Solicitor General prevailed. United States v. Scheffer, 523 U.S. 303 (1998); Clinton v. Goldsmith, 526 U.S. 529 (1999).

Denedo is significant on many levels. First, it carries the potential to not only nullify CAAF's most recent jurisdictional cookie jar raid, but also to change CAAF's attitude about the practice of cookie jar raiding. It's interesting that CAAF's latest divided opinion expansively interpreting military appellate courts' jurisdiction, United States v. Wuterich, 67 M.J. 63 (C.A.A.F. 2008), was released the week before the Supremes granted cert in Denedo. If the Supremes' decision in the case were to emphasize the jurisdictional limits on Article I courts and the imperative to narrowly construe their jurisdiction-granting statutes, might CAAF take another look at cases like Wuterich and Lopez de Victoria? (Of course, Lopez de Victoria's demise would eliminate CAAF's jurisdiction to look at a case like Wuterich.) An interesting case that may provide an early indicator of a Denedo effect is United States v. Rodriguez, No. 07-0900/MC. In that case, which was orally argued on 23 September, the second issue is "WHETHER THIS COURT HAS JURISDICTION TO CONSIDER APPELLANT'S UNTIMELY PETITION IN LIGHT OF BOWLES v. RUSSELL, 127 S.Ct. 2360 (2007)." Rodriguez is one of only two cases orally argued in September that has yet to be decided. Will CAAF wait for the Supremes' decision in Denedo before deciding Rodriguez? Will the mere granting of cert in Denedo lead to a more conservative construction of the court's jurisdiction in Rodriguez? Of course, we might never know the answer to that question. CAAF might have concluded well before the Supremes granted cert in Denedo that it didn't have jurisdiction to consider Rodriguez. But the very fact that Rodriguez is pending on CAAF's docket points to the ongoing importance of the fundamental jurisdictional questions that the Supremes will consider in Denedo.

Denedo is also significant in that it's just the third case in which the SG has sought cert to review a CAAF decision and it's the first plenary cert grant issued to review a CAAF decision in a decade. Oh, and it displaced the Golden CAAF from the Kabul Klipper's stateroom, resulting in its relocation to the Washington Navy Yard's Appellate Center of Excellence.

Obviously the Supremes' ultimate decision in the case will be one of our top-10 military justice stories of 2009. We look forward to following the case's progress in the new year.

Thursday, December 25, 2008

Top 10 military justice stories of 2008 -- #9: NIMJ's staffing growth

Military justice is a fairly insular system. Consider, for example, how rare it is to see civilian law reviews run articles about military justice. If it weren't for JO'C, there would hardly be any at all. Congress rarely pays much attention to the system. The last congressional hearings dealing with military justice of which I'm aware occurred in 1983. For years, the only real player for military justice development purposes was the Joint Services Committee. But that committee's work is largely reactive -- responding to appellate opinions that are adverse to the prosecution and adopting pro-prosecution fixes. Nothing better exemplifies this trend than the so-called Wiesen fix and its fallacious supporting drafters' analysis, which we've discussed here.

Insularity is undesirable. The system can only benefit if its policymakers hear a variety of perspectives. And the organization that has engaged in the most sustained campaign to provide an outside perspective has been the National Institute of Military Justice. The most notable product of that effort was the 2001 NIMJ-sponsored Cox Commission report. I urge you to take the time to read or reread the report -- which, regardless of whether you agree with its recommendations, is an impressive analytical achievement. And that report led to a rare non-DOD-requested UCMJ amendment: Article 25a, which general requires that capital courts-martial have at least 12 members. So it was exciting to read in the New York Times last month that Judge Cox "hopes to convene a second commission" to continue examining the military justice system "in the next few months."

For the past few years, NIMJ's work has been bolstered by a full-time staff to augment its volunteer officers', directors', and advisors' work. That staff was initially limited to one full-time executive director. But over this past year, the full-time staff has expanded to three: an executive director, an assistant director, and a program coordinator. This expansion of its staff provides NIMJ with more resources to analyze and seek to improve the military justice system. Having such an outside think tank dedicated to studying the system will almost certainly promote salutary reforms that DOD wouldn't achieve had it reamined the only real player in the military justice development process.

The growth of NIMJ's staff ranks as one of the top-10 military justice developments of the year because it has such great potential to lead to changes in the system. But, as we recently noted, this story has a certain poignancy because NIMJ's work may be threatened by the Bernie Madoff scam. One of NIMJ's funders, the JEHT Foundation, will shut down at the end of January due to its funders' losses to Madoff. This will apparently cost NIMJ $340,000 in grants over the next two years. Can NIMJ sustain its staffing level in light of these losses? If not, how will NIMJ's programs be affected? We'll continue to follow NIMJ's work next year to answer these questions.

[DISCLAIMER: I am a former NIMJ advisor and director, though I haven't served in that capacity for many years due to my full-time military and governmental employment for the past six years.]

Wednesday, December 24, 2008

Top 10 military justice stories of 2008 -- #10: The Army's adoption of military justice additional skills identifiers

This is the first in an end-of-year series of posts looking back at 2008 and setting out what I think are the ten most significant military justice stories of the year.

On 21 July 2008, the Judge Advocate General of the Army issued a memorandum establishing military justice additional skills identifiers (ASI). A copy is available here. The memo offered words dear to any military justice wonk: "Military justice is our Corps' statutory mission." The military justice ASIs are designed to encourage Army judge advocates "to set goals to achieve greater skill in litigation and expertise in military justice." It establishes four mil jus ASIs: Basic Military Justice Practitioner, Senior Military Justice Practitioner, Expert Military Justice Practitioner, and Master Military Justice Practitioner. This produces a career progression that "encourage[s] counsel to seek out litigation-related assignments to deepen their level of military justice training and experience."

ASIs won't be rigid assignment requirements, but they will be considered by PPTO (the Army's equivalent of monitors or detailers) when filling billets.

As the Super Muppet of Appellate Advocacy discussed here, the program is similar but not identical to the Navy JAG Corps' Military Justice Litigation Career Track program, which then-RADM MacDonald established in 2007 in this instruction.

In my experience, military attorneys generally do an excellent job in run-of-the-mill cases. As I've observed before, for many civilian defendants, Gideon v. Wainwright is a false promise. Appointed counsel are generally provided only to the indigent. But in Maryland, the indigence cut-off was well below the poverty line. The working poor often earned too much to qualify for a public defender but not enough to hire a lawyer. As a result, when waiting for my cases to be called in Maryland circuit and district courts, I would often see unrepresented defendants tried, convicted, and sentenced. That just doesn't happen in the military, where everyone has a right to a free counsel.

But while the military justice system does an excellent job with run-of-the-mill cases, I've noticed over my roughly 21 years in the military justice system that it tends to do a poor job in the big cases. Consider, for example, that in 2 of the 10 military death penalty cases that have completed direct appeal under the current system, the death sentence was set aside because apparently no one in the courtroom knew -- or could figure out -- the proper instruction for voting on the sentence in a capital cases. Or that another 4 of those 10 death sentences were reversed at least in part on IAC grounds. In all, 8 of the 10 have been reversed; the military justice system is batting the Mendoza line in capital cases on appeal.

The Army's military justice ASI program and its Navy predecessor appear to recognize the system's difficulty with the big cases and take reasonable steps designed to shore up that weak spot. These programs also appear to recognize the danger of a military justice brain drain as operational law is increasingly perceived as the career enhancing, sexy specialty for military lawyers. Hence then-Major General Black's reminder that "[m]ilitary justice is our Corps' statutory mission" -- not, mind you, one of its statutory missions.

It will take years to determine whether these programs are actually successful. But merely recognizing the problem and seeking to fix it makes this one of the ten most significant military justice developments of 2008.

Tuesday, December 23, 2008

D.C. Circuit denies Loving's FOIA appeal

In a 3-0 opinion written by Judge Tatel, the D.C. Circuit today denied Dwight Loving's appeal of an adverse FOIA ruling from Judge Huvelle. Loving v. Dep't of Defense, No. 07-5318 (D.C. Cir. Dec. 23, 2008). The opinion is available on the D.C. Circuit's web site here.

The FOIA appeal concerned four specific documents relevant to possible presidential approval of Loving's death sentence. (Many other documents were released to Loving.) One requested document was the Judge Advocate General of the Army's memorandum forwarding the record to the Secretary of the Army. The next document sought was the Secretary of the Army's memorandum forwarding the case to the President. The next requested document is a memorandum from the Secretary of Defense to the President concerning the case. The final requested document was a memorandum from DOD OGC to the White House Counsel that apparently concerned both the Loving and Gray cases.

The D.C. Circuit agreed with Judge Huvelle that the first three documents were protected by the presidential communications privilege, even though the first document was sent to the Secretary of the Army and not to the President directly. Documents falling within this exemption are protected in their entirety with no need to determine whether any factual assertions within the documents are segregable. The D.C. Circuit found that the memo from DOD OGC to the White House Counsel was protected by the deliberative process privilege and found that DOD made an adequate representation that there was no non-privileged portion of this memo that had to be released.

Pardon me II

We previously discussed the No Man's observation that military justice cases account for a surprisingly high percentage (6.43%) of all of President Bush's pardons.

The press is now reporting on a new batch of presidential pardons and, sure enough, one of the 19 arises from a court-martial case. The court-martial was a Navy case, meaning that President Bush's streak of pardoning no Marines for court-martial convictions remains intact.

Monday, December 22, 2008

An NIMJ funder to shut down

One of the developments in contention for a spot on the top-10 military justice stories of 2008 list is NIMJ's hiring of two full-time employees. Establishing a sustainable think tank outside of DOD to analyze the military justice system would be an enormous development -- and a highly salutary one in my book. Such a development wouldn't displace DOD's role in the military justice policy arena, but it would complement it.

But I fear that the Bernie Madoff (as in "Bernie made off with our money") scam may endanger that outside think tank's sustainability.

The insanely informative Capital Defense Weekly reported yesterday that the JEHT Foundation will be closing in January due to granters' losses resulting from Madoff's alleged crimes. JEHT reportedly won't rescind grants already made, but also won't honor multi-year grants. Guess who one of those multi-year grant recipients was. As Daily Kos reports, one of them was the National Institute of Military Justice, which was awarded a three-year grant of $510,000 in 2007.

That raises two questions: (1) Did NIMJ just lose $170,000? (2) If so, will NIMJ be able to continue to execute its important mission?

Fun with fitreps

Today's WaPo included this excerpt from John Warner's 1951 fitrep: "Lieutenant Warner is interested in exerting just enough effort to get by." That didn't exactly turn out to be a career killer.

Sunday, December 21, 2008

This week in military justice -- 21 December 2008 edition

Not surprisingly for this truncated three-work-day Christmas week, there are no scheduled oral arguments at CAAF, ACCA, AFCCA, or NMCCA. I assume that CGCCA's courtroom will also be dark this week, but unlike the other three CCAs, CGCCA doesn't seem to post an oral argument schedule on its web site.

I am also unaware of any anticipated significant trial-level court-martial proceedings this week.

Of course, it's always possible that CAAF will issue an opinion or one of the CCAs will issue a published opinion. If so, we'll certainly report the news. CAAF might also announce a grant to help revitalize its anemic docket. If CAAF were to grant review of a case tomorrow, the normal briefing schedule would expire on 2 March. If CAAF were to grant review of a case on Christmas Eve, the normal briefing schedule would expire on 5 March. And if CAAF were to grant review of a case next Monday, the normal briefing schedule would expire on 9 March -- a scheduled oral argument date.

The next fixed date on the military justice horizon appears to be Friday, 9 January 2009 -- the date on which, if my calculations are correct, the SG's Denedo brief is due at the Supremes. The following Monday, CAAF will hear two oral arguments. The following day is also listed on CAAF's calendar as an oral argument date, but no cases are actually scheduled to be heard on the 13th.

As always, if you are aware of any other significant military justice events or developments, please let us know. You can reach us at

Golden CAAF update

My sources tell me that the Appellate Government Division received the Golden CAAF. But I have not heard to whom it was awarded. Where does the idol rest? Give us updates and pictures. In the Middle Ages, its resting place might spark a pilgrimage site and the development of a town.

Pass in review

2008 has been a remarkable year in military justice. We've seen some things that haven't happened for a decade, such as the Supreme Court's issuing a writ of certiorari to give plenary consideration to a CAAF decision. We've seen some things that haven't happened in my lifetime, such as the President's approval of a military death sentence. And we've seen some unprecedented things, such as elevation of the Judge Advocates General to three-star rank.

Next Sunday, in lieu of "This week in military justice," I plan to post a "This year in military justice" commentary taking a look back at the 10 biggest military justice stories of 2008. Between now and then, please post both your nominations for the top ten and your thoughts about the best criteria for defining a "big" military justice story.

Friday, December 19, 2008

USMC Getting Soft at 223 - Deserter Gets Summary Court-Martial

The last few days I have been watching growing press coverage of a USMC deserter from Camp Pendleton. The amazing part has been the relative lenience that the USMC discipline system has shown. Today, for his UA, a summary court-martial awarded Lance Coporal Lance Hering, as summarized by the Marine Corps Times, "forfeiture of $1,166 and 60-days restriction without loss of rank. Because one day of confinement equals two days of restriction, Hering’s 33 days in jail will count as the full time served." See an excellent report from the Rocky Mountain News, here, with quotes from the proceedings and a blow-by-blow of testimony.

The facts behind the UA are rather bizarre. In short, as reported by the San Francisco Chronicle,
Hering disappeared in August 2006, soon after returning from a combat tour in Iraq. He was due back at Camp Pendleton that September to begin training for a possible redeployment to Iraq in late 2007. But, on Aug. 30, 2006, a friend of Hering's told police the Marine suffered a rock-climbing accident west of Boulder and wandered away. The friend later admitted the disappearance was a hoax — but not before hundreds of people had scoured the landscape looking for Hering.
According to the Marine Corps Times, here (compare his photo at capture with this one from after his summary court-martial today), Former Lance Corporal Lance Hering's desertion nearly two years ago may have been linked to mental problems, also possibly a reason for the relatively lenient treatment. In the two years since his disappearance police have searched his parents home, report here, and rumors have circulated concerning Hering's whereabouts after intermittent contact with Hering.

Hering will likely be separated with an Other-than-Honorable discharge, though it is possible the leniency will continue. He could be separated for mental health issues, in which case he'd receive a General (Under Honoarble Conditions) discharge. However, Hering's troubles are far from over as he faces a probation violation hearing for prior burglary charges and charges related to that little hoax he helped engineer, see report here.

Demise of a blawg

We're very disappointed to see the end of Appellate Law & Practice. S. COTUS, we'll miss you -- whoever you are.

Scheduling order issued for Gray habeas litigation

The United States District Court for the District of Kansas today issued a scheduling order governing Ronald Gray's habeas litigation. Gray v. Gray, No. 08-3289-RDR (D. Kan. Dec. 19, 2008) (order). I've posted a copy here.

The order sets a 1 April 2009 deadline for Gray's counsel to file his habeas petition. The United States then has 30 days to file its return. Gray's traverse is due 30 days later. Any request for discovery or a hearing must be made in writing.

Senior Judge Rogers declined to apply 28 U.S.C. § 2251(a)(3), which imposes a 90-day limit on pre-petition stays upon appointment of counsel for state death row inmates. Judge Rogers wrote that the statute, which expressly deals with "State" prisoners sentenced to death, "does not on its face reach petitioner, and the court finds the April 1, 2009, deadline for petitioner's filing of a habeas petition is appropriate under the circumstances."

The order misstates Gray's first name. Previous orders in the case have correctly named him.

Thursday, December 18, 2008

Counsel in Gray v. Gray

I hadn't noticed until today that the Army Litigation Division lawyer who is "of counsel" for the United States in the Gray v. Gray litigation is the author of Time to Kill: Euthanizing the Requirement for Presidential Approval of Military Death Sentences to Restore Finality of Legal Review, 195 Mil. L. Rev. 1 (2008).

MAJ Toman's involvement in the litigation following President Bush's approval of Ronald Gray's death sentence is interesting because one of the major themes of his article is his argument that the military death penalty has been de facto abolished by the congressional requirement that the President approve a military death sentence before it may be executed. He begins his article by arguing, "The death penalty has effectively been abolished in the military justice system." Id. at 1. He later contends, "The confluence of the executive approval requirement and executive inaction appears to create a de facto exclusion [from capital punishment] for servicemembers sentenced at court-martial." Id. at 65. He maintains that "the presidential approval requirement has become obsolete as a result of 'a long period of intentional nonenforcement and notorious disregard' and as a result of substantial improvements in legal review under the UCMJ." Id. at 70-71 (internal footnote omitted). He opines that "disuse of the approval provision nullifies the purpose of the trial courts." Id. at 78. And he proclaims that "[i]t is time for a mercy killing of Article 71(a) because it has fallen into desuetude as a result of its disjointed location in the judicial process." Id. at 8.

So much for desuetude.

CAAF issues instructional error opinion

CAAF released its opinion today in United States v. DiPaola, __ M.J. ___, No. 08-0200/NA (C.A.A.F. Dec. 18, 2008). The opinion is available here. By a 4-1 vote, the court held that the military judge erred by not giving a reasonable and honest mistake of fact instruction in an indecent assault case. The majority also held that the error was not harmless beyond a reasonable doubt. Judge Erdmann wrote for the majority. Judge Stucky dissented. The court reversed NMCCA's decision, which had held that the military judge didn't abuse his discretion by failing to give the instruction.

As was the case in United States v. Crudup, __ M.J. ___, No. 08-0392/AR (C.A.A.F. Dec. 4, 2008), which we discussed here, the differences between the majority and the dissent don't appear to involve any questions of law or doctrine. Rather, the different preferred outcomes appear to be related to the judges' views of the facts of this particular case.

Wednesday, December 17, 2008

Wednesday's CAAF argument audio online

Audio to Wednesday's oral argument in United States v. Collier, No. 08-0495/NA, is available here. Audio to Wednesday's oral arugment in United States v. Campos, No. 08-0409/NA, is available here.

Tuesday, December 16, 2008

Wuterich Reconsideration Denied

Today's Chock Full O' News CAAF Daily Journal also posted the denial of reconsideration in the Wuterich cases, previously covered here. For those just joining us, Wuterich is the last remaining Haditha case, see here and here. This appeal involved an interlocutory government appeal of an MJ's decision quashing a government subpoena for statements made by the accused during a 60 Minutes interview. CAAF, after finding jurisdiction to review the government Art. 62 appeal, reversed the military judge and ordered an in camera review of the news footage. CAAF reserved judgment on the news gatherer privilege.

Disclaimer: Our fearless leader was counsel for SSgt Wuterich.

Gray habeas update

Yesterday a telephone scheduling conference was held in the Gray v. Gray case pending before the U.S. District Court for the District of Kansas that resulted in a stay of Ronald Gray's execution. Here's the PACER entry:

DOCKET ANNOTATION: Telephone scheduling conference held. Court will issue an order. (meh) (Entered: 12/15/2008).
We will continue to monitor the case and post further developments.

Audio for today's arguments posted

The audio for today's oral argument in United States v. Clayton, No. 08-0417/AR, is available here. The audio for today's oral argument in United States v. Dean, No. 08-0431/AR, is available here.

New CAAF grant on search and seizure case

Deleted by author because the No Man beat me to it. See below.

Kreskin = CAAFlog: CAAF grants review in Weston

Today's Daily Journal gives us this new grant in U.S. v. Darrel A. WESTON, No. 08-0594/MC (NMCCA No. 200600985). Review granted on the following issues:

I. Whether the lower court erred in holding that Georgia v. Randolph, 547 U.S. 103 (2006), does not apply to the consent search of appellant's marital home where agents from the Marine Corps' Criminal Investigation Division (CID) first received appellant's unequivocal objection to a search of his marital home and then obtained consent from appellant's wife, both of whom were physically located in separate interrogation rooms in CID’s building on Marine Corps Base Hawaii, Kaneohe Bay, Hawaii.

II. Whether, assuming arguendo that the search of appellant's marital home was unreasonable in light of Georgia v. Randolph, 547 U.S. 103 (2006), the lower court erred in holding that the inevitable discovery exception to the exclusionary rule would allow admission of the seized evidence.

(CAAFlog tip of the day: to convert from all caps to all lowercase paste the all caps message into Word, highlight the text, and press Shift-F3 until the text appears in all lowercase.)

As CAAFlog previously predicted, here, this case was destined for CAAF review. This is the NMCCA panel reversal of an MJ's (now-Navy-Marine Corps Trial Judiciary CJ MacKenzie's) decision that turned into an en banc affirmance when 2 NMCCA judges went from agreeing with a panel decision to agreeing with an en banc decision. As CAAFlog previously observed, this inevitable discovery and competing consent case provides no clue as to why or how the two judges changed their votes from the panel to the en banc opinion. Now CAAF takes a shot at explaining why they were right or wrong to change their votes.

UPDATE: From CAAFlog's dueling post on Weston: Yesterday was the last day that CAAF could grant review of a case and, without altering the normal briefing schedule, ensure that it will be ready for oral argument by the 25 and 26 February argument dates.

Monday, December 15, 2008

Argument dates

Yesterday, CAAF's web site showed oral argument sittings scheduled for 9, 10, and 11 February, but with no cases plugged into any of those dates. (As we noted on Friday, though, two cases had been scheduled for 10 February, but they weren't yet listed on CAAF's web site.) Earlier today, CAAF's web site was modified to drop the 9 and 11 February sittings and insert the Riddle and Ranney arguments on 10 February. But still later today, the 9 February sitting returned to the calendar, though still with no arguments plugged in. CAAF's schedule also reflects a 13 January oral argument sitting, but no cases are plugged into that date either.

I believe there are currently four granted cases that have yet to be scheduled for oral argument: United States v. Miller, No. 08-0580/AR (granted 9 Oct); United States v. Thomas, No. 08-0738/NA (granted 6 Nov); United States v. Gardinier, No. 06-0591/AR (granted 6 Nov); and United States v. Paige, No. 08-0805/MC (granted 9 Dec). And there are currently four scheduled argument sittings in January and February (13 Jan, 9 Feb, 25 Feb, and 26 Feb) with no cases yet docketed for argument.

It appears that those will be the only four cases to distribute among the four empty January and February sittings; if CAAF were to grant review of a case tomorrow and counsel were to file their briefs on the last day permitted under CAAF's rules, then the reply brief wouldn't be filed until 27 February.

Cow crosses brow

I sent the Golden CAAF to shore duty today at Code 46, where I trust Col Puleo will bestow/dispose of it properly. I didn't include any note or other explanation, so if no one there reads CAAFlog, it may get opened up, then blown up in the parking lot. I hope to see it on a bookshelf or window sill when I finally get to tour the new "Center of Excellence."

Sunday, December 14, 2008

This week in military justice -- 14 December 2008 edition

After a slow week, the coming week in military justice promises to be quite eventful.

This week at the Supreme Court: We are unaware of any anticipated military justice developments at the Supreme Court this week. But we do invite a report from the Kabul Klipper concerning the present whereabouts of the Golden CAAF.

This week at CAAF: CAAF is scheduled to hear two arguments on Tuesday and two more on Wednesday. Tuesday leads off with United States v. Clayton, No. 08-0417/AR. The principal issue in Clayton is "WHETHER THE CIVILIAN POLICE DRUG SEIZURE REPORT IN THIS CASE IS A REPORT SETTING FORTH 'MATTERS OBSERVED BY POLICE OFFICERS . . . ACTING IN A LAW ENFORCEMENT CAPACITY,' AND, IF SO, WHETHER IT WAS PROPERLY ADMITTED UNDER M.R.E. 803(6) (BUSINESS RECORD EXCEPTION), WHEN IT WOULD NOT BE ADMISSIBLE UNDER M.R.E. 803(8) (PUBLIC RECORDS EXCEPTION)." I can't find ACCA's opinion in the case anywhere online.


Wednesday's arguments will begin with a Navy case, United States v. Collier, No. 08-0495/NA. The issue there is "WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY EXCLUDING, PURSUANT TO M.R.E. 403, RELEVANT EVIDENCE OF A PRIOR HOMOSEXUAL RELATIONSHIP BETWEEN APPELLANT AND A CENTRAL GOVERNMENT WITNESS OFFERED BY THE DEFENSE TO SHOW BIAS AND MOTIVE TO MISREPRESENT ON THE PART OF THE GOVERNMENT WITNESS." NMCCA's unpublished opinion in the case is available here. United States v. Collier, No. NMCCA 200601218 (N-M. Ct. Crim. App. Feb. 21, 2008).




This week at the trial level:
We aren't aware of any significant events expected at the trial level this week.

As always, if you are aware of any other military justice developments or upcoming events, please drop us a line at

And, finally, a new (no doubt one-time) feature:

This week in mongrel doggerel: With apologies to Clement Clarke Moore and anyone who has actually read this far into this post, here's my very bad seasonal CAAF poem:

'Tis the week before Christmas
When at CAAF's courthouse,
Defense counsel they'll rise
And loudly they'll grouse
About findings and punishments unfair
Seeking to win a reversal, so rare.

Counsel will rise to speak with dread,
Wondering what questions will pop into judges' heads.
Is it a softball or is it a trap?
Should you answer directly or start to dance tap?

But answering a question with tap dancing chatter
May provoke the judges to tear you to tatters.
And counsel must be careful to make no concession too rash
Or risk giving opposing counsel a chance to talk trash.

Instead counsel's syllogistic reas'ning must flow,
But above all, it's the record that counsel must know.
Lest counsel's ears hear the sound they most fear,
The sound of a judge exclaiming a jeer.

Counsel must not rely on tiresome shtick,
Or arguments that brand them a law heretic.
Or you will have no one but yourself to blame,
As you try to parry each of the judges by name.

When answering hypos from Effron, the Chief,
Saying, "But that's not this case" will only bring grief.
Answers to Judge Baker must be sufficiently granular
To avoid having an off day, like Ferris Bueller.
If your argument runs counter to words' plain meaning,
In your opponent's direction, Judge Erdmann 'll be leaning.
If your answers fail to impress Judge Stucky,
He'll leave no doubt he finds your argument kooky.
And to avoid an appellate affliction,
You must convince Judge Ryan of the Court's jurisdiction.

When you've said all there's to say, just have a seat,
Giving the judges your opposing counsel to beat.
And please don't just repeat what was in your epistle
For that is sure to make an appellate judge bristle.

It all comes to an end with the glowing red light.
Happy holidays to all, and to all a good night.

CGCCA, you got some 'splainin' to do

On I Love Lucy, Ricky Ricardo's catch phrase was, "Lucy, you got some 'splainin' to do." That phrase came to mind when reading CGCCA's opinion in United States v. Tuscan, __ M.J. ___, No. 1281 (C.G. Ct. Crim. App. Dec. 9, 2008).

Fireman Machinery Technician Tuscan and Petty Officer LaPalm were co-actors in offenses that also involved a third Coastguardsman who was discharged before their misconduct came to light. The misconduct was essentially a brutal and humiliating punking of a high school student who was the boyfriend of one of their neighbors. The high school boy was "handcuffed, hog-tied, slapped around with a belt," and had shaving cream sprayed down his pants. Tuscan pointed a pistol at the boy while he was tied up, revealing only afterward that the weapon was loaded with dummy training rounds.

For his part in the incident, Petty Officer LaPalm was sentenced to reduction to E-1 and a fine of $5,000, with a 60-day contingent fine enforcement period of confinement. Tuscan was sentenced to reduction to E-1, a bad-conduct discharge, and confinement for 12 months. CGCCA found that Tuscan's misconduct in the incident was "significantly greater" than OS3 LaPalm's. The court also found that Tuscan's previous record was more spotted than LaPalm's. CGCCA found that "the disparity in the sentence is justifiable as a matter of law." So far, so good. Then CGCCA continued, "Nonetheless, we will exercise our Article 66 authority and approve only six of the twelve months of Appellant's adjudged confinement." Id., slip op. at 8. The court concluded, "Accordingly, the sentence of a bad-conduct discharge, confinement for six months, and reduction to E-1 is affirmed." Id., slip op. at 10.

This raises the question: what did CGCCA intend to do when it reduced the adjudged confinement by six months? Tuscan's court-martial ended on 25 January 2007, so he was released from confinement about a year before CGCCA set aside six of the 12 months of confinement. CGCCA couldn't have thought that it was actually achieving a diminution of Tuscan's deprivation of liberty. So what did CGCCA have in mind? Did it intend the sentence "relief" to be merely metaphysical or to somewhat reduce any stigmatizing effect of being ordered confined for a year by reducing the formal sentence (though not the executed sentence) to confinement for six months? Or did CGCCA intend to recompense Tuscan for his overly lengthy confinement by having his automatic forfeitures returned to him for whatever period of time in excess of six months he was actually confined?

Whatever the correct answer to that question, I believe that CGCCA should have spelled it out. It opens the military justice system to legitimate ridicule for an appellate court to retroactively set aside confinement that has already been served. If the appellate court has some other end in mind when it does so -- such as producing some benefit to the accused resulting from collateral consequences of formally disapproved but actually served confinement -- then the appellate court should say so. This is true for two reasons. First, it will help to eliminate the appearance of meaningless relief. Second, it would allow counsel to inform the court if the court's belief about the collateral consequences is incorrect.

Let's assume for the moment that CGCCA's actual intent in Tuscan was to have about six months of automatic forfeitures at an E-1 rate returned to him. But what if for some reason, contrary to the court's expectation, that wouldn't actually happen. It's hard enough for me to figure out what DFAS would do in a case like this -- I know NOTHING about how Coast Guard pay officials would deal with this. Might there be some chance that they would refuse to pay him the amount of automatic forfeitures at the E-1 level for his time in confinement in excess of six months? What if he was beyond the end of his contract date when he was court-martialed -- or his contract expired sometime during the first six months of his confinement? Would the Coast Guard still pay him for the now-excessive confinement? I don't know. And I could be wrong about this, but I'd bet that none of the judges on the Tuscan panel is absolutely sure of that answer. And if not, they should have made their expectation clear so that if it didn't come about, counsel could return to the court within the lengthy 30-day reconsideration period established by the Joint CCA rules and ask the court to award a meaningful form of relief if it were to turn out that the reduction in already-served confinement doesn't have any practical effect. And if I'm wrong and the court was absolutely sure that it was putting some money into Tuscan's pocket as a result of its relief, then it should say so to avoid the appearance of injustice that would be created by awarding meaningless relief.

So please CCAs, if you are going to award some form of apparently meaningless sentence relief, 'splain why you are doing so.

Senate Report on Legal Review of Detainee Policies has Judge Advocates Front and Center

The Washington Post and others have links to the Senate Armed Services Committee Inquiry Into the Treatment of Detainees in US Custody, story here and report here. The report features judge advocates in many portions of the report, in both a positive and a slightly negative light. There are several mentions of service judge advocate reviews of requests for permission to use "aggressive" techniques on detainees. Generally the judge advocate memos seemed to have raised "serious concerns regarding the legality of many of the techniques." The advisory opinions also called for more review of the legal impact of the "aggressive" techniques before implementation due to potential UCMJ violations raised by use of the tactics by service members.

Then CAPT Jane Dalton, JAGC, USN, legal advisor to the CJCS, got at least union rate for her speaking part in the report. The Report's commentary on her actions is a mixed bag, most positive but they take a jab at her in the Conclusions. The report shows no signs of a dissenting opinion from Republicans, so I'll assume it is bi-partisan. Our loyal readers have seen similar reports of judge advocate stances on similar issues, see here and here (comments).

Disclaimer: I don't speak for the Dept of the Navy, and never did speak for DON, on any of the issues surrounding detainee interrogation tactics.

Saturday, December 13, 2008

Challenge to DOD computer monitoring policy

Here's a link to an interesting motion filed in an Army court-martial last month. The motion challenges the effect of DOD's computer monitoring policy on military defense counsel's ability to send and receive confidential communications electronically. Does anyone know how the motion was resolved? Are there any other updates on the DOD policy and its ramifications?

Friday, December 12, 2008

CAAF schedules two cases for oral argument

We learned today that CAAF will hear oral arugment in Riddle, No. 08-0739/AR, and Ranney, No. 08-0596/AF, on 10 Febuary 2008. But CAAF's oral argument web page doesn't yet reflect this. It's likely that additional cases have been scheduled for 9 February, and perhaps 11 February, but that information isn't yet visible to us.

Thursday, December 11, 2008

Slow news day

If any military justice developments occurred today that are worth writing about, they've escaped the No Man's and my notice.

Wednesday, December 10, 2008

CAAF kicks two cases back to the CCAs

CAAF yesterday kicked two cases back to the Courts of Criminal Appeals. In one, it remanded a case to the Air Force Court to clarify an ambiguity in a sentence reassessment it performed. United States v. Mohamed, __ M.J. ___, No. 08-0720/AF (C.A.A.F. Dec. 9, 2008) (summary disposition). Here's a link to AFCCA's ruling in the case.

CAAF also remanded a case to ACCA to investigate an IAC claim. In United States v. Jones, __ M.J. ___, No. 08-0683/AR (C.A.A.F. Dec. 9, 2008) (summary disposition), CAAF granted review of this issue: "WHETHER APPELLANT'S TRIAL DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO REQUEST ARTICLE 13 CREDIT FOR ALLEGED ILLEGAL PRETRIAL PUNISHMENT INFLICTED ON APPELLANT." CAAF then set aside ACCA's decision and remanded the case for ACCA "to obtain an affidavit from trial defense counsel that responds to Appellant's allegation of ineffective assistance of counsel." Id. ACCA's opinion in the case doesn't appear to be on its web site.

CGCCA grants sentence disparity relief in published opinion

CGCCA released two opinions yesterday, though neither is on its web site. One of the two is published. United States v. Tuscan, __ M.J. ___, No. 1281 (C.G. Ct. Crim. App. Dec. 9, 2008). I've posted it here. In Tuscan, the Coast Guard Court rejected a challenge to the timeliness of the government's notice to the defense that a prosecution witness had been immunized. CGCCA also rejected a plain error challenge to a portion of the addendum SJAR. But CGCCA reduced Fireman Machinery Technician Tuscan's sentence due to its disparity with a co-actor's sentence. The reduction, though, consisted of knocking out six months of confinement that Tuscan had already served.

Honey, I kept the docket from shrinking more

Lately I've been bemoaning the dearth of cases on CAAF's docket. So I was glad to see that the day after summarily disposing of Hickman, CAAF added a case to its docket: United States v. Paige, __ M.J. ___, No. 08-0805/MC (C.A.A.F. Dec. 9, 2008). Here's the granted issue: "WHETHER TRIAL COUNSEL COMMITTED PLAIN ERROR DURING HIS CLOSING ARGUMENT ON THE MERITS WHEN HE COMMENTED THAT THE GOVERNMENT'S EVIDENCE WAS UNCONTRADICTED, THEREBY INDIRECTLY COMMENTING ON APPELLANT'S FAILURE TO TESTIFY AND PRODUCE EVIDENCE IN HIS DEFENSE." And here's a link to NMCCA's unpublished opinion in the case. United States v. Paige, No. NMCCA 200600587 (N-M. Ct. Crim. App. Jul. 1, 2008).

But granting in Paige while disposing of Hickman, CAAF has merely kept its docket size constant for the week.

To quote Queen, another one bites the dust

Today's daily journal update explains why the 15 December oral argument sitting went away. CAAF was scheduled to hear argument in United States v. Hickman, No. 09-6001/MC -- an Article 62 appeal case where NMCCA reversed the trial judge's ruling. United States v. Hickman, No. NMCCA 200800529 (N-M. Ct. Crim. App. Sept. 18, 2008) (per curiam). (The trial judge whose ruling was reversed was LtCol Beal -- he of Article 120 unconstitutionality fame.)

On Monday, CAAF granted Code 46's unopposed motion to dismiss the petition for grant of review. United States v. Hickman, __ M.J. ___, No. 09-6001/MC (C.A.A.F. Dec. 8, 2008) (summary disposition). CAAF's order explains that "the charge against the Appellant was withdrawn from the pending special court-martial and adjudicated at a summary court-martial, and the petition is now moot." Id.

So strike another case from CAAF's docket.

Update overload

I have several updates tonight. But I'm under the gun this week, so these will be quick hits. I'll try to post some thoughts on Saturday.

Tuesday, December 09, 2008

The Warner arraignment

Here's an AP piece on yesterday's arraignment of Staff Sergeant Hall M. Warner at Fort Campbell. Staff Sergeant Warner is reportedly charged with premeditated murder, accessory to murder, assault, obstruction of justice, and making a false official statement arising from the shooting of a detainee in Iraq. The defense entered a not guilty plea at yesterday's arraignment.

According to this AP account, Staff Sergeant Warner's court-martial will begin on 16 February 2009.

First Lieutenant Michael C. Behenna, who allegedly actually shot the detainee, reportedly hasn't been arraigned yet. He is charged with premeditated murder, assault, and making a false official statement. His court-martial is scheduled to start on 23 February 2009.

Monday, December 08, 2008

LOL law review piece

The Autumn 2008 issue of the Green Bag arrived in Casa CAAFlog's mailbox today. The issue concludes with a Yale Law 3L's laugh out loud 8-page poem extolling The Bluebook. Michael Coenen, Rhapsody in Blue: An Ode to The Bluebook, 12 Green Bag 2d 115 (2008). The poem marches through each Bluebook rule and table, even devoting a quatrain to its index. Here, for example, is the poem's description of Tables 9 and 10:

T9: Here's Legislative Docs!
Off it will knock my Bluebook socks!
T10: Terms of Geography:
My state is "Conn." and not "CT."

The poet drops 17 footnotes, the first of which cites The Bluebook, thereinafter short formed as "Baby Blue." These footnotes, such as note 8's theorizing about the correct abbreviation of "abbreviation," may be even funnier than the poem they annotate.

We should have a CAAFlog contest asking contestants to predict when the first law review article, comment, or note will cite the poem.

Honey, I shrunk the docket

Earlier editions of CAAF's December Court Hearing Calendar included a 15 December oral argument in United States v. Hickman, No. 09-6001/MC -- a case we previously discussed here and here. But today's calendar update removed both Hickman and the 15 December oral argument sitting from the schedule.

Denedo timing

As discussed by SCOTUSblog here, the Supreme Court has filled in its oral argument calendar through 4 March 2009. United States v. Denedo, No. 08-267, isn't among the scheduled cases. This suggests that Denedo will be orally argued no sooner than 23 March 2009. As reflected by the Court's calendar, available here, SCOTUS has oral argument dates set for 23, 24, 25, 30, and 31 March as well as 1, 20, 21, 22, 27, 28, and 29 April. Four of those dates (31 March and 1, 27, and 28 April) overlap with scheduled CAAF oral argument dates--though there appears to be cause to doubt that CAAF will hear enough cases to fill all of its scheduled oral argument dates.


Like it's any surprise, but here is a link to today's SCOTUS orders list denying certiorari in both MilJus cases, Seawell v. United States, No. 08-588 (discussed here) and Lucero v. United States, No. 08-7196 (discussed here), distributed at Friday's conference.

TWIMJ Supplemental - Warner/Behenna to Be Arraigned

Forgot to pass this on to CAAFlog, so I'll supplement This Week in Military Justice. The Tulsa World (I am sorry, but the paper's name is . . . something) reports here that Staff Sgt. Hal M. Warner and 1st Lt. Michael C. Behenna will be arraigned at Ft. Campbell, Kentucky today on charges including premeditated murder, false official statements, and obstruction of justice. The report states that the soldiers face a maximum punishment of LWOP, but I don't exactly have a lot of faith in the news media in getting that one correct--we'll track it down. If you recall the charges are that, as The World reports, "Behenna of stripp[ed a] detainee naked, [shot] him in the head and chest and watch[ed] as Warner set fire to the body with a grenade." Neither soldier is in pre-trial confinement, according to the story.

Sunday, December 07, 2008

Pearl Harbor Day

Today we specifically honor those who fought against the Japanese forces who attacked Pearl Harbor. But every day is an appropriate opportunity to honor all of our combat veterans. We thank them for their courage, sacrifice, and service. Please take the opportunity to personally thank anyone you know who has fought for our country.

This week in military justice -- 7 December 2008 edition

This past week has seen stunning and/or important military justice developments from the trial level through Article III habeas review. The most noteworthy occurred at Fort Bragg, where Staff Sergeant Alberto Martinez was completely acquitted at his capital court-martial on two premeditated murder specs. NMCCA heard en banc oral argument on the constitutionality of the new Article 120. The federal district court judge presiding over Ronald Gray's case arising from his court-martial and approved execution rejected the United States' motion to reconsider the stay of execution he had previously ordered. And all of this overshadowed what would usually be the headline grabbers of two CAAF opinions, as well as four CAAF oral arguments.

Most weeks are far less exciting. And with no known oral arguments at any of the military justice system's five appellate courts, this coming week appears likely to be even duller than most.

This week at the Supreme Court: Two military cert petitions had been circulated for this past Friday's conference. Tomorrow's order list will likely reflect cert denials in both cases. We'll report on the order list tomorrow evening.

This week at CAAF: CAAF has no oral arguments this coming week, though it will hear five next week, including a recently added Article 62 appeal. CAAF could, of course, announce more opinions this coming week. And we are hopeful that CAAF will soon provide additional information concerning oral argument scheduling for its 13 January 2009 and 9, 10, and 11 February 2009 argument dates.

This week at the CCAs: We know of no cases being orally argued at any of the four CCAs this week. If we learn of any reported CCA decisions, we'll post links and synopses.

This week at the trial level: We understand that military commission proceedings will occur at Guantanamo this week in the case of United States v. Khalid Sheikh Mohammed, et al. We're unaware of any significant court-martial activity during this coming week.

As always, if you know of other significant military justice developments or upcoming events, please drop us a note at

Saturday, December 06, 2008

Blackwater indictments

The Washington Post reports here that five Blackwater Worldwide Security guards were indicted under MEJA on Thursday for a September 2007 shooting incident that killed 17 Iraqis. The article sets out potential difficulties in the prosecution, including jurisdictional problems under MEJA because the Blackwater guards were directly supporting the State Department and not the Department of Defense.

a follow-up piece from WaPo's web site.

Martinez analysis

Here's an article from today's Fayetteville Observer analyzing the Martinez capital court-martial, which ended in a complete acquittal on Thursday. The interesting part begins in the subsection labeled "The widows."

Here's an article from the Lower Hudson Journal News providing more details about earlier overtures to the victims' families about a pretrial agreement.

Here's the Fayetteville Observer's editorial on the case.

And here's a link to a post-verdict op-ed written by Barbara Allen, the widow of one of the murdered officers.

Friday, December 05, 2008

BREAKING NEWS: USDC denies U.S. motion to reconsider Gray's stay

Senior Judge Rogers today denied the United States' motion to reconsider his order staying Ronald Gray's execution and appointing counsel for him. United States v. Gray, No. 08-3289-RDR (D. Kan. Dec. 12, 2008) (order). A copy of his five-page order is available here.

Audio to Wednesday's oral arguments

Audio links to Wednesday's oral arguments are available on CAAF's web site. The audio for United States v. Gladue, No. 08-0452/AF, is available here. The audio for United States v. Rogers, No. 08-0518/AF, is available here.

Access to CAAFlog

I hear scuttlebutt that the Marine Corps is moving to limit access to blogs on its computers. Unless the Marine Corps has decoupled its computer system from the Navy's, I assume that this means that Navy computers will be similarly limited.

Can our tech savvy contributors or readers tell us if there is a workaround in case this does, indeed, happen? Could an RSS feed (if that's the right term) provide a way to access material on CAAFlog even if a computer's browser refuses to go to If so, can anyone provide guidance on how to set that up? Are there other solutions?

Coast Guard to make its court-martial docket publicly available on the Internet

We previously looked at the Reporters Committee for Freedom of the Press's white paper decrying limits on the availability of information about upcoming courts-martial. We also looked here at a disturbing example of information about a Navy court-martial not being relayed to reporters despite apparent assurances that such information would be provided.

Now the Reporters Committee announces here that the Judge Advocate General of the Coast Guard, Rear Admiral William D. Baumgartner, "has agreed to post all Coast Guard court martial dockets online in early 2009." The announcement indicated that "only the Army currently provides centralized online access to its dockets."

With the Coast Guard and Army making their dockets publicly available on the Internet, it will be interesting to see if the Air Force and the Department of the Navy follow suit.

Go Navy! Beat Army!

And Go SCOTUSblog! Beat Patently-O! (But a Navy victory tomorrow is looking far more likely than a SCOTUSblog victory in the ABA Journal Blawg 100 niche blawg competition.)

Coverage of the Martinez court-martial acquittal

Here's a link to the Fayetteville Observer's article on Staff Sergeant Martinez's acquittal. And here's a link to the Lower Hudson Journal News's account. But that account includes at least one blunder. Contrary to the Journal News's report, Martinez was not "the first U.S. soldier to be tried for fragging since the beginning of the war in Iraq." Sergeant Hasan Akbar is on military death row at Leavenworth for a fragging incident at the outset of Operation Iraqi Freedom in 2003.

CAAFlog special chowtime update

I have a lot of news to pass on, but I'll be at the Air Force TJAG holiday party this evening. So I'll be posting a series of chowtime updates.

Theory: Judge Erdmann is the Justice Kennedy of CAAF

Is Judge Erdmann becoming the Justice Kennedy of CAAF? I am horrible at these WWBJD type of posts, but I briefly perused opinions for the last 2 terms (well, 1 and a 1/4 terms). J Erdmann has been in the majority in all cases during that time except 6. Two notable dissents for J Erdmann were Wuterich and Lopez de Victoria. I haven't done the math to see how many dissents all other judges had, but even J Baker, who is part of the most likely alliance on the court with CJ Effron, had 9 non-majority result opinions.

I also noticed that J Erdmann was all over the ideological map in CAAFlog's July 2008 Not so Entangling Alliances post. According to CAAFlog's rankings, J Erdmann was almost as likely to be paired with CJ Effron as J Ryan. His rankings for pairing with J Stucky and J Baker were similarly close, ranking 7 and 6, respectively. I'll keep an eye on this and see if I can prove my hypothesis, though I was hoping for a greater spread with the Baker dissents.

Thursday, December 04, 2008

CAAF releases harmless error opinion

It's a rare day in military justice when the release of a CAAF opinion is the second-most significant story of the day. But today is such a day, which reflects both the importance of today's lead story -- Staff Sergeant Martinez's acquittal -- and the doctrinal insignificance of the case CAAF released today, United States v. Crudup, __ M.J. ___, No. 08-0392/AR (C.A.A.F. Dec. 4, 2008).

Judge Stucky wrote for a three-judge majority in Crudup consisting of himself and Judges Erdmann and Ryan. The three voted to affirm ACCA's ruling in the case. Chief Judge Effron, joined by Judge Baker, dissented.

ACCA had concluded that certain hearsay testimony had been admitted in violation of Private Crudup's confrontation rights, but held that the error was harmless beyond a reasonable doubt and affirmed. The CAAF majority chastised ACCA for failing to perform a complete harmlessness analysis under Delaware v. Van Arsdall, 475 U.S. 673 (1986). But after applying Van Arsdall itself, the majority concluded that the error was harmless.

The dissent agreed with the majority that Van Arsdall provided the proper test, but disagreed with the majority's outcome when applying that test. So the dispute in Crudup appears to affect a universe of one case.

Putting Martinez into a historical perspective

Martinez is at least the third capital court-martial tried since the current military death penalty system took effect in 1984 to result in a total acquittal from the members. The first was also an Army case, United States v. Chrisco, (No. ACMR 8800382) (tried in February 1988). The second was Airman Calvin Hill, who was acquitted of murder in a May 2007 court-martial at Bolling Air Force Base. Hill did, however, plead guilty to some larcenies, for which the members fined him $2,780 and imposed 90 days of hard labor without confinement.

With Staff Sergeant Martinez's conviction, 15 of the known 49 actual capital courts-martial tried under the current post-1984 system have resulted in death sentences, for a 30.6% death sentence rate. But convening authorities set aside 2 of those 15 death sentences, so the system now has a 26.53% approved death sentence rate. (Of those thirteen, seven have been set aside on appeal, four remain pending at the CCA level, and two have been affirmed -- though one of those two affirmed death sentence cases -- Loving -- is currently before CAAF on a petition for a writ of habeas corpus. The other is Gray.)

Revisting my "why do we produce so many law school graduates?" rant

[WARNING: This post isn't about military justice.]

I previously ranted about the fact that our nation's law schools apparently spew out close to 44,000 new graduates each year. And I noted while my state of Maryland is in the midst of a horrible budget crunch, it supports two state law schools located within 1.52 miles of each other in Baltimore. Today I learned another fact that made me cringe even more. The state of Maryland is paying $92 million in public funds to build the University of Baltimore School of Law a new 12-story building.

Even if we were to accept the questionable proposition that the cash-strapped Maryland government should engage in some sort of Keynesian stimulus during this economic downturn, Maryland could at least buy something useful with its $92 million Keynesian jolt. Instead, it will get a 12-story glass "three-dimensional jigsaw puzzle" to replace an existing building that seems perfectly adequate for its task of pumping out its share of the nation's almost 44,000 annual law school graduates.

Heck, for $92 million, the Department of Defense could build six Centers of Appellate Excellence and still have $5 million left over to defend a couple of cert grants.

SSgt Martinez Acquitted

As reported here, the members in the Ft. Bragg capital, fragging court-martial returned not guilty verdicts on all counts. SSgt Martinez was accused of murdering two officers with a claymore mine and faced a possible death sentence.

Martinez update

As reported here by AP, the members have asked to listen to certain witnesses' testimony on tape. Four hours of tape have apparently been made available to the members. So it seems unlikely that a verdict will be reached this morning. I'm out of pocket most of this afternoon and evening. But I trust that one of my CAAFlog colleagues will post a notice if a verdict is announced.

Wednesday, December 03, 2008

ACCA publishes troubling Article 31 opinion

Sometime over the past few days while I wasn't looking, ACCA loaded a published Article 31 decision onto its web site. United States v. Redd, __ M.J. ___, No. ARMY 20051123 (A. Ct. Crim. App. Nov. 26, 2008). Trying to slip this unpersuasive opinion past military justice practitioners while they're semi-comatose from tryptophan overload would have been a far better idea than publishing it.

Here's the essence of the opinion:

[W]e find appellant's rights under Article 31, UCMJ . . . were triggered when appellant was interviewed at the same time and location by a special agent of the U.S. Army Criminal Investigation Command (CID) and a civilian police detective investigating an offense that violated both state and military law. However, we hold the notification of rights provided by the civilian detective under Miranda v. Arizona, 384 U.S. 436 (1966), coupled with notice of the allegation against him, satisfied the notice of appellant’s rights required by Article 31 and Military Rule of Evidence . . . 305.
Id., slip op. at 3.

While parts of the opinion are sound, its conclusion that PFC Redd was adequately put on notice that he was suspected of possessing child pornography is legally and logically flawed.

Contrary to the military judge's conclusion, ACCA held that Article 31 warnings were required because of a merger of investigations by the Laurel, Maryland Police Department and Army CID into allegations that PFC Redd had had sex with a 16-year-old. The Laurel police detective who interrogated PFC Redd with an Army CID agent present gave Redd Miranda warnings. But while Miranda famously cited Article 31 in the course of adopting its rights warning requirement, Article 31 requires something that Miranda doesn't: Article 31(b) requires the interrogator to advise the suspect of "the accusation." The military judge found that "Detective Sims informed the accused that they wanted to speak to him regarding instances of sexual misconduct with an underage female." Id., slip op. at 15. After admitting to having sexual intercourse with a minor three times, PFC Redd unexpectedly made statements indicating he possessed child pornography. Id., slip op. at 4. The law enforcement agents proceeded to question him about child pornography possession without telling him that he was now suspected of an additional offense, with the CID agent taking "control of part of the ensuing questioning." Id., slip op. at 5.

The military judge ruled that the law enforcement agents didn't have to comply with Article 31 but that they did anyway. The military judge expressly ruled that "the initial advisement, that is that the accused was being questioned related to sexual misconduct with an underage female, was sufficient. Special Agent Silvas was not required to re-advise the accused when he made his child pornography statements, because child pornography falls within the penumbra of misconduct with a minor." Id., slip op. at 6. Anytime I read the word "penumbra" in a judicial opinion, I presume that whatever follows it has no actual basis in law or fact. This case doesn't rebut that presumption.

While ACCA disagreed with the military judge and concluded that Article 31 did apply, ACCA went along with the judge's conclusion that telling someone he is suspected of "instances of sexual misconduct with an underage female" puts him on notice that he's suspected of possessing child pornography. ACCA applied a non-exhaustive three-part test to determine whether PFC Redd had been given adequate notice regarding possession of child pornography: (1) "whether the conduct is part of a continuous sequence of events"; (2) "whether the conduct was within the frame of reference supplied by the warnings"; and (3) whether the interrogator had previous knowledge of the unwarned offenses. Id., slip op. at 11 (quoting United States v. Simpson, 54 M.J. 281, 284 (C.A.A.F. 2000)).

ACCA then proceeds to badly mangle the first of those prongs. In Simpson, immediately after setting out the "continuous sequence of events" factor, CAAF cited the Air Force Court's opinion in United States v. Willeford, 5 M.J. 634 (A.F.C.M.R. 1978). Airman Basic Willeford was charged with unlawfully entering a female Airman's room and then raping her. During the rights advisement, he was told he was suspected of rape. He wasn't separately warned that he was suspected of unlawful entry and an indecent act with the same victim that immediately preceded the rape. AFCMR ruled, correctly in my view, that the rights warning as to rape was sufficient to cover his act of unlawfully entering the victim's room to commit the rape and the immediately preceding indecent act. AFCMR reasoned: "The totality of information furnished the accused by the agents shows a continuous sequence of events that was sufficient to allow him to focus on the nature of the offenses of unlawful entry and indecent acts with another, which in this case were closely related to the offense of rape. Therefore, the requirement that he be advised of the nature of the offenses of unlawful entry and indecent acts was fully met." Id. at 636.

Now look how ACCA misuses this test. First, ACCA focuses on whether the interrogation was continuous rather than whether the suspected acts of misconduct were continuous: "there was no interruption between the original rights warning, the interview during which appellant spontaneously announced he possessed child pornography, and the continued questioning on that offense." Redd, No. ARMY 20051123, slip op. at 12. But surely that doesn't even suggest that PFC Redd was adequately oriented to possible questioning about child pornography possession when the detective told him that the law enforcement agents "wanted to speak to him regarding instances of sexual misconduct with an underage female." ACCA then added, more relevantly but no more persuasively, that "the allegation of sexual misconduct involving a child occurred during the same period of time that appellant was illegally downloading child pornography. Therefore, the conduct being investigated, as well as the questioning process, was 'continuous in nature.'" Id. So, to take a very realistic example, if a soldier is suspected of committing a murder in a bar where the servicemember was engaged in underaged drinking, this factor wouldn't be offended if CID were to warn him only that he's suspected of underaged drinking and try to get him to confess to a capital offense because the events "occurred during the same period of time"? Or, to take another realistic example, if a soldier is suspected of being AWOL for a month and is suspected of having committed a rape during that month, CID agents can tell him they want to talk to him about the AWOL and then proceed to interrogate him about the suspected rape without offending this factor because the suspected rape occurred while he was AWOL?

ACCA does no better with the next prong. ACCA simply states, without providing any supporting analysis (unless parenthetical synopses following case cites counts as analysis): "Second, the original allegation of use of a computer to commit child sex offenses through the use of internet chat was sufficiently related to the allegation of possession of downloaded child pornography as to orient appellant to the nature of the offense." Id., slip op. at 12. This would seem questionable enough even if it were true. But the "original allegation" wasn't that PFC Redd used Internet chat rooms to commit sexual offenses. According to ACCA's opinion, PFC Redd's statement "admitted meeting the minor [MG] in an internet chat room." Id., slip op. at 4. But nothing in the opinion or the military judge's findings of fact suggests he was advised that he was suspected of using a chat room to meet the victim; rather, according to ACCA itself, "Detective Sims advised appellant of his Miranda rights for sexual intercourse with a minor." Id. (emphasis added). And advising someone that he is suspected of sexual intercourse with a minor doesn't put that person on notice that he is also suspected of possessing child pornography -- which, when the interrogation began, he wasn't (hence leading to ACCA's solid conclusion that the third non-exhaustive Simpson factor "weighs in favor of our finding appellant's Article 31 rights were satisfied," id., slip op. at 12).

CAAF should certainly review this troubling opinion. And, as we've recently discussed, CAAF certainly seems to have sufficient openings on its docket to do so.