Thursday, January 22, 2009

Court Unanimously Rogers Up

Judge Baker, writing for a unanimous Court today, affirmed AFCCA in United States v. Rogers. While not the QP, as Judge Baker summarized, "The question presented is whether probable cause existed to issue the search authorization [for appellant's hair sample]."

First a critique. While the phrase "military magistrate," used extensively by Judge Baker, may be technically correct, I think it conveys a mis-impression of neutrality in the official who in this case issued the search authorization. Col Wayne McCoy, the 70th Operations Group commander was the "military magistrate," and, more than likely, the Special Court-Martial convening authority. See AFCCA opinion here (noting that the commander that authorized the search was "the commander of the appellant"). Not exactly my mental image of a magistrate. Enough with word choice.

Judge Baker holds that under a totality of the circumstances the military judge did not abuse his discretion in finding that the Commander had probable cause to issue the search authorization. Essentially Judge Baker wrote that the tie goes to the military judge when determining probable cause because the MJ could judge the veracity and credibility of the witnesses. Not ground breaking stuff, though I think it should put agents on notice not to exclude all the bad stuff from the affidavit when seeking search authorization.

An interesting note here is that the probable cause determination was based in large part on the veracity of SrA T and her eyewitness story about the accused ingesting cocaine. She also alleged an indecent assault and indecent exposure by Rogers. As Judge Baker noted in assessing the record as a whole established probable cause, "SrA T’s statements, as conveyed to multiple witnesses, are granular and credible, independent of what Agent McPherson did or did not say to Col McCoy . . . ." Yet, Rogers was acquitted of the other charges alleged by SrA T. I was struck that Judge Baker did not at least mention this fact or comment that the jury's verdict had nothing to do with the Commander's judgment.


Publius said...

Although I have no specific information on the case, I seriously doubt that Colonel McCoy was the special court-martial convening authority. On most Air Force installations there is only one SPCMCA and usually it is the support group or wing commander. The AFCCA's reference to Colonel McCoy being the appellant's commander suggests to me that he commanded a squadron or group that was subordinate to the SPCMCA.

Anonymous said...

"Granular" statements? What does that mean?

Mike "No Man" Navarre said...


Thanks for the Air Force specific info. Even if he was not an SPCMCA, the general comment still stands as Col McCoy was the appellant's commander and not what one normally envisions when you see the word "magistrate."

Glad to see you are back in frequent commenting mode. By the way, whatever happened to The Dynamic duo of Roman pseudonyms has taken quite a long break from blogging.

Publius said...

Sacramentum was, shall we say, out of the loop, but has returned. Unfortunately Sacramentum does not yet have the time to reinvigorate the Military Justice Blog, but hopes to do so in the future, duty permitting. Both of us are still avid readers of CAAFlog, although we get upset at some of the petty sniping in some of the comments.

Dew_Process said...

Does anyone know whether or not the Defense challenged the Military Magistrate on the chain-of-command issue? If not, that may explain the scenario. But, it's almost a per se "conflict" issue because as Commander, he's got a duty to insure the "health and welfare" of his troops, and if anyone suspects that one of HIS airmen is using dope, how can he be "neutral?" Especially so, since it appears that the witness, SrA T, was also a member of his command.

Publius is correct - the 70th Ops Group is a subordinate unit of the 70th ISR Wing [Intel, Surveillance & Recon], and per now standard AF organization, the SpCM CA is the Wing Commander. After the Vice Wing Commander, the Ops Group Commander would be the # 3 person in the Wing.

In the past, "good" AF practices were to NOT select a "military magistrate" from a suspects direct chain of command so as to avoid any such issues, unless no other Magistrate was available. The AF traditionally has 2-3 per base, depending on the size. What's even stranger (at least to me) is that the 70th ISRW is a tenant unit at Fort Meade, MD, which of course would have Army Magistrates on post - but typical AF, never wanting to cede any authority to another Branch.

I've got a feeling that the Record from the Suppression hearing was pretty thin in this case.