Tuesday, February 17, 2009

An important unpublished NMCCA opinion

I know -- usually "important unpublished opinion" is an oxymoron, but not today. NMCCA released an unpublished decision setting aside a rape conviction as factually insufficient, setting aside the remaining convictions due to cumulative error, and providing major relief based on appellate delay. United States v. Foster, No. NMCCA 200101955 (N-M. Ct. Crim. App. Feb. 17, 2009). Judge Maksym wrote for himself and Senior Judge Couch and Chief Judge O'Toole. While fully joining in the opinion of the court, Chief Judge O'Toole also authored a concurring opinion expressing his thoughts about the appellate delay issue. The opinion is available here.

Sgt Foster was convicted of raping his wife five years before his court-martial, as well as a couple of specs of aggravated assault and communicating a threat. The rape conviction was based entirely on his wife's testimony (after the allegation arose during a contested child custody case) and prior consistent statement evidence. On the other side of the ledger, Sgt Foster and his wife continued to have sexual relations after the alleged rape, apparently including on videotape. He received a sentence that included confinement for 17 years and a DD.

NMCCA's Foster opinion twice suggests that it is reversing the rape conviction on both legal and factual sufficiency grounds, but it seems pretty clear that it actually reversed the conviction only on factual sufficiency grounds. Compare id., slip op. at 3 ("We conclude that the appellant’s conviction for rape cannot withstand the test for legal and factual sufficiency and dismiss it with prejudice."), and 5 ("In his first assignment of error, the appellant contends the evidence that he raped Heather Foster was legally and factually insufficient. We agree."), with id., slip op. at 7 ("Considered in the light most favorable to the Government, a reasonable member could choose to believe the victim, and to disbelieve evidence inconsistent with guilt"; and "we hold that his conviction of rape was factually insufficient").

The court then proceeded to reverse the other convictions as well, finding cumulative error. First, the court found plain error in a government expert witness's testimony during which she essentially offered expert opinion that the charged offenses occurred. In a nice turn of phrase, NMCCA observed that the witness, Dr. Rusher, "adopted the facts as advanced by the alleged victim and cloaked them in a physician’s white coat, presenting them as scientific findings to the members." Id., slip op. at 10. NMCCA then concluded that "the military judge was unable to 'unring the bell,'" despite trying to do so by giving the members a curative instruction. Id., slip op. at 12.

The court also noted that the military judge permitted the members to hear testimony of the alleged victim's six-year-old son, only to then learn that he "had not been born at the time of one of the charges about which he was testifying, and that he was approximately two years old at the time of the most recent alleged act." Id., slip op. at 13. The military judge then ordered the boy's testimony stricken and instructed the members to disregard it. NMCCA concluded that the combined "errors call into question the fairness of the appellant's trial." Id., slip op. at 14. The court therefore vacated the findings. Id.

Now here's the really interesting part. Having set aside and dismissed the rape conviction and set aside the remaining convictions 10 years into the accused's 17-year sentence, NMCCA went all Reverend Dimmesdale on itself, self-flagellating over unreasonable appellate delay. While noting unreasonable delay by just about everyone involved in the case's post-trial processing, NMCCA reserved its harshest words for itself. In applying the second Barker v. Wingo factor, the court concluded: "the bulk of delay in this case is attributable to the manner in which this court failed to properly advance this litigation. The delay incurred by this court’s ineffective action amounts to nothing less than judicial negligence." Id., slip op. at 17. The court also concluded that Sgt Foster was severely prejudiced by the delay, observing that "the appellant has served nearly ten years of confinement, in part, for an offense of which he should not have been convicted." Id., slip op. at 18. NMCCA concluded that the appellate delay violated Sgt Foster's due process rights and that the violation wasn't harmless. To remedy that violation, NMCCA capped the authorized sentence at any rehearing on the undismissed charges at a punitive discharge. Id., slip op. at 19.

In his separate concurrence, Chief Judge O'Toole again flayed everyone involved in the case's post-trial processing, lashed NMCCA the hardest, noted improvements that the Judge Advocate General of the Navy had made to avoid a repetition of such delay, and called on everyone in the system to remain vigilant. Id., slip op. at 19-20 (O'Toole, C.J., concurring).

With its useful discussions of both cumulative error and appellate delay, Foster seems destined to become one of the most frequently cited unpublished CCA opinions.


Anonymous said...

CAAFlog, self-flagellation, indeed.

But you have your authors wrong. This is not Hawthorne. This is classic Moliere. Today we will learn about what Bloom calls “Tartuffery.”

I remembered an NMCCA case from 2007. On July 9, 2007, an NMCCA judge authored an opinion in the case of Marine Staff Sergeant (E-6) Corye T. Todd (NMCCA 200400513). This NMCCA appellate judge excoriated the military judge, at trial below, for lacking judicial temperament, not just at that trial, but as a career pattern:

“We will, however, take this opportunity to once again express our concern with the comments made by, and lack of judicial deportment exhibited by, this military judge during his trials.”


“The record is replete with needless comments and arrogant behavior by the military judge.”


“More troubling to us is the military judge’s goading of the military counsel by his incessant sarcasm, and his pompous condescension towards them, often in the presence of the members.”


The target of that criticism? Judge J.A. Maksym.

The author of that criticism? Judge V.S. Couch.


I wonder if Judges Maksym and Couch have decided to let bygones be bygones? They joined in this decision. But then again, here is Judge Maksym striking back in the most subtle and ingenious of ways: “I may be sarcastic, pompous, condescending, lacking judicial temperament, devoid of judicial deportment, but at least I move my f’ing cases! Unlike NMCCA of years past, before I got here – full of pomp and ceremony, regal detachment, cut-and-paste legal standards and one sentence analysis – but so very negligent. I apologize on behalf of the unprofessional appellate court I inherited from my slug predecessors.” This is classic Tartuffe.

And Judge Maksym even infected Chief Judge O’Toole. Here’s C.J. O’Toole’s language: “Having said this, I hasten to add that it is not my purpose to castigate our predecessors.” Rule # 1 in life: Listen carefully to disclaimers - the item disclaimed is always what the proponent really means. (E.g., “I’m not saying your stupid, but…” = you’re stupid; or “I don’t want to say anything bad about her, but…” = I want to say something bad about her; etc.)

Some more C.J. O’Toole: “Looking forward, I KNOW I CAN SPEAK FOR ALL OF MY COLLEAGUES in asserting that this court will take heed of the lessons learned here.” He’s caught Judge Makysm arrogance virus. Unless a judge signs an opinion, no, actually, another judge, even a chief judge, cannot “speak for” that judge.

And the rest of the concurrence really is, as Judge Couch would call it, “needless banter.”

So Judge Makysm even got his tormentor, Judge Couch, and the Chief Judge, to drink the Kool-Aide with this decision! Judge Couch co-signed the decision, playing Orgon to Judge Maksym’s Tartuffe.

Well-done, Judge Maksym. Cheers. (And pass the Kool-Aide)


One postscript:

“As to an appropriate remedy, we have considered dismissing all charges and specifications with prejudice. We would do so if we had evidence that the appellant was unable to defend himself against the remaining charges at any rehearing.”

WHAT? Appellants need to argue that they will be “unable to defend themselves” in a future rehearing? I know NMCCA is being generous with this decision, so most people will miss and excuse it – except for my steel-trap legal mind – but there is zero legal authority for this standard, invented here, out of whole cloth. It’s an added new layer of appellate protection. (“Military Law 2009 - New & Improved! Get some now!”)

Anonymous said...

Maksym was a horrible, self-important, conceited, arrogant trial judge; apparently stays in character as an appellate judge as well.

Anonymous said...

Why doesn't "judicial negligence" equal "dereliciton of duty"? Will charges be preferred against the judges?

Anonymous said...

So Crates,

Really? You are going to quibble over your belief of a “new” appellate standard after NMCCA granted such astounding relief, implying that it is unfair to the appellant.

I think you need to look at that phrase in context with the rest of the opinion. My interpretation: If NMCCA believed that the great delay in this case would negatively impact his ability to offer a defense to any charges at a possible rehearing, then they would dismiss with prejudice as well.

Tell me what would normally happen in run-of-the-mill cases where findings have been set aside due to legal error (improper instructions, challenge for cause, expert testimony, etc. (as opposed to ones where prejudice would attach))? They are just sent back for a rehearing, correct? If anything CCA is creating an opportunity for appellant to offer that the actions of the Govt (post trial delay) has hampered his ability to offer a viable defense upon rehearing.

Anonymous said...

7:26 Anon,

Yes, I will quibble. That's my job. You have every right to be annoyed by my pedantic insistence that even when a court grants generous relief, it should be accompanied by a legal standard. I know - I'm an ingrate! But I'm also a philosopher. And my insistence on exactitude makes my fellow citizens want to kill me.

I do not think I have to read the relief "in context," when we are talking about a legal standard. I actually think that NMCCA's suggested standard might even be prudential and wise. But that means either cite some authority for that legal standard or publish this decision, because it breaks new ground.

Cloudesley Shovell said...

Anon 0716 am:

I humbly make a bold prediction: Just as there never has been a prosecution under Article 98, UCMJ (non-compliance with procedural rules), there never will be, ever. There will never be a dereliction of duty prosecution for post-trial delay, either.


Regarding your postscript, I read that portion of the opinion as referring to one of the prejudice prongs from Barker. See Moreno, 63 MJ at 138-39. One of the prejudice prongs is impairment of defenses upon retrial. I think that's what the Court was referring to, and just failed to cite to it. Not a new standard of appellate review, just a reference to existing case law.

In the event of retrial, Foster can certainly make a trial motion for dismissal of the charges based upon the delay causing an impairment of defenses.

Whether a retrial is even worth it, consider the ultimate result in US v. Stirewalt. After being convicted of rape and other offenses, Stirewalt got 10 years and a DD. That conviction was reversed after Stirewalt had served about 3 1/2 years of confinement. On retrial, the case collapsed amid unlawful command influence allegations, and Stirewalt's ultimate sentence after pleading guilty to consensual sodomy was 90 days, reduction to E-4 (from E-5) and a reprimand. No punitive discharge. See 60 MJ 297 (CAAF 2004). Foster is not the first guy to get screwed over in a court-martial, and won't be the last.

Anonymous said...

Does his wife now get half the pension he earned the hard way in the joint?

Anonymous said...


You are a credible source and have mostly convinced me of something that I did not initially see: the court was latently applying a Barker v. Wingo prejudice factor. The seemingly "new" thing here is the application of that prong AFTER resolution of the B v. W prejudice analysis. In other words, besides an omitted citation, it is a bit weird to see a prong of a test used outside the 4-corners of that test. But I guess I'm not the first one to perceive how these B v. W factors overlap, meld, fade, brighten, wiggle and weave...like an acid trip. Still, although most seem willing to lay back on this, something is not quite right about the logic train here. I wish the court could articulate more on the link between a B v. W prejudice finding and the separate and analytically distinct decision of whether or not to authorize a rehearing. As I stated earlier, I am NOT saying the court is necessarily wrong or imprudent here - I'm just asking for clarity in both law and logic - which is a reasonable thing to ask of an appellate court tasked with articulating the law for all observers and practitioners. For example, an appellant can put in boilerplate language in posttrial delay appeals asking for separate and more extensive briefing on the issue of impairment of defenses in the event the court should find prejudice warranting some relief.

Anonymous said...

From the opinion:

"We conclude that had one of the seven previous lead judges in this matter conducted a thorough assessment of the record of trial in a timely fashion, the extensive errors embracing this case would have been discovered and the appellant would have faced the prospect of a new trial on all but the rape charge."

What the heck is a "lead judge" and why single them out for failing to review the record? That's not how I read Article 66. Every judge on the panel to which the case was assigned had the same obligation and was equally worthy of reproach. I think the author is tacitly acknowledging here what we all know to be standard practice at NMCCA. I've long thought the "lead judge" concept fails to afford appellants the full measure of review Article 66 contemplates. Sadly, in this case, it appears to have worked to the prejudice of the appellant by insulating from the record other appellate judges who might have realized that a man was languishing in prison for a crime he did not commit.

John O'Connor said...

I agree with Anon 1632"s view of the "lead judge" concept.

Anonymous said...

I'm curious as to how your view of the "lead judge" works and then why it fails to afford the full measure of Art. 66 review. Like Socrates I'm just asking for a little clarity to your thoughts because I do not understand you are saying is the problem.

John O'Connor said...

I don't see how it's reasonable that only one of the three judges actually reviews the record, if that's what in fact happens. The purpose of three judges is to have a diversity of viewpoints, which is defeated if just one judge actually reads the record.

Anonymous said...

So who is that is currently holding trial judges accountable for their post-trial delay in authenticating ROT?

Judicial independence is all great and well until it starts impacting the rights of Sailors and Marines.

Who is it that is watching the judges and holding them accountable for increasing delay at the trial and appellate courts? Are they watched and "judged" themselves or are they given a free pass?

Cloudesley Shovell said...

Anon at 819pm--

As a practical matter, nobody holds either military judges, SJAs, CAs, appellate courts, or appellate lawyers personally accountable.

They could be held accountable; they just aren't. Accountability within the JAG ranks for incompetence, malfeasance, and misconduct is so rare that when someone actually is held to account, it's a huge deal.

That being said, most cases are handled completely appropriately, without error or delay. That does not excuse those cases like Foster, however. No justice system is perfect; the best system of justice works to minimize errors and fix those errors promptly when they occur.

Anonymous said...

Mr. O'Connor,

NMCCA judges openly admit at judicial conferences that their standard is that only one "lead judge" is required to read the record.

In their view, Article 66 is satisfied by one judge's review, and the other two judges need only review the record and pleadings as their "consciences" dictate (the "conscience" standard is their words, not mine). And, by definition, the "conscience" standard has no objective requirements or criteria.

I personally find this practice deplorable, and believe that Congress intended three judges to separately and independently consider each case. As you stated, this provides a crucial diversity of viewpoints.

I do not subscribe to the belief that the lead judge can provde an "objective" factual summary which can serve as a substitute for the other judges reviewing the actual record. The facts that one judge may find objective and relevant, another judge may not. The only way to ensure a full understanding of a case is for there to be three independent views.

I understand that true three-judge review would increase the workload at NMCCA. But until they are working nights and weekends, to merely cite caseload as a justification for failing to fulfill a statutory duty does not strike me as persuasive.