Tuesday, March 31, 2009

ACCA sets aside rape conviction due to factual insufficiency

Here's something one doesn't often see -- yesterday, in an unpublished opinion, ACCA set aside a rape conviction due the evidence's factual insufficiency. United States v. House, No. ARMY 20061064 (A. Ct. Crim. App. March 30, 2009). ACCA affirmed an adultery conviction arising from the same incident and authorized a rehearing on the sentence.

Sgt Weemer's court-martial is underway

Here's a link to an AP piece reporting on the first day of Sgt Ryan Weemer's court-martial. Sgt Weemer is charged with unpremeditated murder and dereliction of duty arising from the alleged shooting of four unarmed detainees in Fallujah in 2004. His squad leader, Jose Nazario, was acquitted in federal district court last year when he was tried on charges arising from the same incident.

Monday, March 30, 2009

TWIMJ update

Here are the issues to be argued before the Air Force Court on Wednesday in United States v. Gurry, No. ACM 37145:

I. Whether the Appellant received ineffective assistance of counsel when he was not advised by his defense attorneys that he could testify to rebut both new testimony and testimony emphasized by repetition through questioning by the members after they recalled five of six Government witnesses during deliberations.

II. Whether the Appellant was denied his rights to due process and to present a defense when he was not advised that he could testify to rebut both new testimony and testimony emphasized by repetition through questioning by the members after they recalled five of six Government witnesses during deliberations.

III. Whether the court-martial was without jurisdiction because the Commander, 72d Air Base Wing, had no authority to convene a general court-martial when he purportedly modified the convening order on 1 June 2007 and when the court was assembled on 12 June 2007, after such authority had been withdrawn effective 30 May 2007 by the Secretary of the Air Force.

VI. [not a typo] Whether Specification 4 failed to state an offense because it did not give proper notice and was void for vagueness.

BREAKING NEWS: CAAF halts Webb court-martial

We previously discussed the Air Force Court's recent Webb opinion. United States v. Webb, __ M.J. __, No. 2009-01 (pet) (A.F. Ct. Crim. App. March 20, 2009). Last week, Webb filed a writ appeal. The case presents a personal jurisdiction challenge to the trial of an airman (former airman?) who received his DD 214 and final accounting of pay before the military brought him back to face trial by court-martial. His command had unsuccessfully attempted to put him on legal hold before he received his discharge. The Air Force Court denied a petition for extraordinary relief challenging jurisdiction.

This afternoon CAAF issued an order halting Webb's court-martial, which was scheduled to start tomorrow, "pending further order of the Court regarding the writ-appeal petition." United States v. Webb, __ M.J. ___, No. 09-8020/AF (C.A.A.F. March 20, 2009).

Mayo Gets 35 Years in Iraqi Detainee Plea Deal

Sgt. 1st Class Joseph Mayo pled guilty today and was sentenced to 35 years in prison in the shooting deaths of four Iraqi detainees in early 2007. See WaPo report here. As previously reported by us extensively, see here and here, Mayo was one of four NCOs that were implicated in the shooting deaths. Only Master Sgt. John E. Hatley has yet to face a trial, which according to the report is scheduled for April 2009.

Also, in court-martial news, the Sgt Ryan Weemer trial begins this week. See North County Times report here. Weemer along with two others, was accused of killing Iraqi civilians in Fallujah in 2004. One of the co-accused, Sgt. Luis Nazario, was acquitted in a federal MEJA trial last year.

According to one commenter, Col Michael Murphy's court-martial starts this week, or at least voir dire. Any confirmation on that?

Sunday, March 29, 2009

How did this even become a CAAF case? CAAF holds that German police report containing non-testifying witnesses' statements violates Crawford

In contrast to CAAF's opinion in Forney, United States v. Clayton, __ M.J. ___, No. 08-0417/AR (C.A.A.F. March 26, 2009), is delightfully straightforward.

Sergeant Clayton was convicted of various offenses including possession of marijuana with the intent to distribute. As Judge Baker's opinion of the court explains:

At Appellant's court-martial, the military judge admitted into evidence, over defense counsel's objections, a report from the German police pursuant to the business records exception to the hearsay rule. Military Rule of Evidence (M.R.E.) 803(6). The report in question listed the drug evidence collected from the car and the chase route, including "where the narcotics were found, the time when it was found, and the police officer who found it or who took it over from a pedestrian." [Lead German investigator Wolfgang] Held verified that he prepared the report as part of the "regular course of [his] business" and such documents are "always prepared when evidence is received." Mr. Held also testified that, although he counted and recorded the drugs in the report, he personally seized only three items and none of the marijuana listed in the report, saw the rucksack in the car but did not personally seize it from the car, and did not see anything thrown from the car.
Id., slip op. at 7.

The question before CAAF was whether the admission of this report violated Crawford v. Washington, 541 U.S. 36 (2004). The answer to that question seems so obvious that it's difficult to understand how this even became a CAAF case, since that required both the military judge and ACCA to reach the wrong conclusion on that question. (SGT Clayton was tried about six months after the Supremes announced their Crawford decision.)

CAAF provides this summary of how the Crawford issue arises in this case:
Although Mr. Held and one other officer who discovered some of the drugs testified, two other officers listed in the report, as well as the pedestrians who provided the drugs to the officers, did not testify at Appellant's court-martial. Further, only one of the officers who found part of the marijuana at issue in Charge IV and its specification testified, and he discovered it with the help of pedestrians. Appellant did not have the opportunity to cross-examine these potential witnesses. The question becomes whether their statements in the report are testimonial, and thus whether the report's admission as evidence violated Appellant's right to confront witnesses against him.
Clayton, No. 08-0417/AR, slip op. at 9.

CAAF concluded that the statements included in the report were testimonial. "First, the report was prepared in the course of an investigation." Id., slip op. at 10. "Second, the report 'involve[d] more than a routine and objective cataloging of unambiguous factual matters.'" Id., slip op. at 11 (quoting United States v. Rankin, 64 M.J. 348, 352 (C.A.A.F. 2007)). "Mr. Held prepared this report eight days after March 16, 2004, to describe the drugs found in the car and along the chase route, who found them, and where they found them." Id. Additionally, Mr. Held testified not from his original German-language version, but rather from an English-language version that was prepared during the court-martial. "Third, the report and its English translation were created 'with an eye toward trial.'" Id., slip op. at 12 (quoting Rankin, 64 M.J. at 352).

CAAF went on to hold that the report's admission wasn't harmless beyond a reasonable doubt.

Judge Stucky concurred separately to note that he didn't believe that the redacted English-language translation created any additional Confrontation Clause errors that weren't created by the German-language version.

Parsing Forney

CAAF's fragmented opinion in United States v. Foreny, __ M.J. __, No. 05-0647/NA (C.A.A.F. March 26, 2009), isn't easily interpreted and won't be easily applied. Judge Stucky wrote the plurality opinion, joined by Judge Baker. But three of the five CAAF judges actually disagreed with a key portion of the plurality opinion. Yet, under traditional principles of stare decisis, the legal proposition agreed to by Chief Judge Effron's concurrence and the two dissenting judges isn't controlling precedent.

Forney was a LT(JG) who downloaded 1,700 to 1,800 images of naked girls between the ages of 10 and 15 on computers in his stateroom and the engineering log room aboard USS DAVID R. RAY (DD 971). For this he was initially convicted of both Article 133 and Article 134 offenses. But the case was tried pre-Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), and the military judge gave the members an instruction that didn't distinguish virtual from real images. While the Article 134 conviction was later invalidated on that basis, the Article 133 conviction remained. This latest opinion in the case considers whether the Article 133 conviction could withstand this issue with the instructions. Three judges held that it could but split 2-1 as to why.

In Marks v. United States, the Supreme Court provided the law on interpreting Supreme Court decisions that lack an opinion of the Court: "when a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds." Marks v. United States, 430 U.S. 188, 193 (1977).

Assuming that Marks also governs the way CAAF opinions should be construed--as at least one CAAF judge has assumed, see United States v. Lazauskas, 62 M.J. 39, 44 & 44 n.10 (C.A.A.F. 2005) (Gierke, C.J., concurring)--then Forney stands for the narrowest grounds on which Chief Judge Effron agreed with the plurality. That would seem to be that any instructional error in the case is harmless beyond a reasonable doubt--a point that the plurality made in footnote 2 (on page 12) of its opinion and that Chief Judge Effron made on pages 9-12 of his separate opinion concurring in the result.

Both Chief Judge Effron and the dissenters went out of their way to note that a majority of the court's judges agree that in an Article 133 prosecution, "the accused is entitled to present evidence that the conduct does not amount to an offense in civilian society." See Chief Judge Effron's concurrence at 7-8; see also Judge Erdmann's dissent at 4 n.1 (agreeing with this portion of Chief Judge Effron's concurrence). Chief Judge Effron counted CAAF's noses and observed:

Judge Erdmann, joined by Judge Ryan, makes a similar point, noting that the record in this case does not establish that the members gave fair consideration to the nature of the charged conduct separate from the nature of the offense as a civilian crime. See Forney, __ M.J. at __ (3-4) (Erdmann, J., with whom Ryan, J., joins, dissenting). I agree. The end result is that three judges, a majority of this Court, agree on the nature of the instructional error in this case. See id. at 4 n.1.
Id. at 9 n.1.

While Chief Judge Effron's point is important as a predictive matter, it doesn't turn those three judges' views into precedent. As the D.C. Circuit has observed: "we do not think we are free to combine a dissent with a concurrence to form a Marks majority." King v. Palmer, 950 F.2d 771, 783 (D.C. Cir. 1991) (en banc). The Eleventh Circuit similarly recently rejected a nose-counting approach that would credit the votes of dissenters:

We are controlled by the decisions of the Supreme Court. Dissenters, by definition, have not joined the Court's decision. In our view, Marks does not direct lower courts interpreting fractured Supreme Court decisions to consider the positions of those who dissented. . . . Marks talks about those who "concurred in the judgment[]," not those who did not join the judgment. Marks, 430 U.S. at 193, 97 S. Ct. at 993.
United States v. Robison, 505 F.3d 1208, 1221 (11th Cir. 2007), reh'g en banc denied, 521 F.3d 1319 (11th Cir.), cert. denied sub nom. United States v. McWane, Inc., 129 S. Ct. 630 (2008).

Trial judges and CCAs might choose to follow the interpretation of Article 133 that those three judges provided--and, at least as long as all three remain on CAAF, it might be judicially economical to do so. But their view does not appear to be controlling precedent. Their view is helpful as a predictive matter, but not as a controlling precedent. If the issue of how Article 133 intersects with constitutional limitations on the applicability of federal civilian statutes doesn't arise again until one of more of those three judges has departed CAAF, then their views may not even remain helpful as a predictive matter. In any event, from a stare decisis standpoint, the tabula is still rasa.

This week in military justice -- 28 March 2009 edition

This week at the Supreme Court: I know of no expected military justice activity at the Supreme Court this week.

This week at CAAF: CAAF has no oral arguments this week. If any opinions or grants are announced this week, we will post them.

This week at the CCAs: This is a busy week for CCA oral arguments, with three of the four CCAs hearing a case. On Tuesday, ACCA will hear oral arugment in United States v. Perez, No. ARMY 20071308. The assignment of error being argued in Perez is: "THE EVIDENCE IS LEGALLY AND FACTUALLY INSUFFICIENT TO SUPPORT APPELLANT’S CONVICTION OF MALTREATMENT UNDER ARTICLE 93, UCMJ, (THE SPECIFICATION OF CHARGE II) BECAUSE THE COMMENTS MADE WERE NEITHER SEVERE NOR PERVASIVE ENOUGH TO RISE TO THE LEVEL OF MALTREATMENT." On Wednesday, AFCCA will be hearing oral argument in United States v. Gurry. Jack Zimmerman will be orally arguing the case for the appellant. I'll post the precise issues to be orally argued tomorrow, but the principal issue in the case is an IAC claim based on allegedly inadequate advice provided to the accused during trial. Also on Wednesday, the Navy-Marine Corps Court will be hearing oral argument on an Article 46 issue in United States v. Delgado: "WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN DENYING APPELLANT'S REQUESTS FOR ADDITIONAL EXPERT ASSISTANCE IN THE FIELDS OF OPHTHALMOLOGY, NEUROLOGY, AND FORENSIC PATHOLOGY?" Sorry, but I don't know whether LT Delgado will be representing the United States in Delgado.

Friday, March 27, 2009

Wuterich cert petition distributed for conference

The cert petition in Wuterich v. United States, No. 08-1133, has been distributed for conference on 17 April 2009.

[DISCLAIMER: I'm counsel of record in the case.]

Thursday, March 26, 2009

CAAF releases two opinions

I'm low on both time and energy tonight, so I'll just give you the cites to CAAF's two newest opinions. I'll try to provide synopses over the weekend.

United States v. Forney, __ M.J. ___, No. 05-0647/NA (C.A.A.F. March 26, 2009) (plurality opinion by Judge Stucky, joined by Judge Baker, affirming Article 133 conviction for wrongfully possessing child pornography and holding that the accused officer could be convicted for possessing even virtual images of child pornography on government computers with Chief Judge Effron concurring in the result and Judge Erdmann, joined by Judge Ryan, dissenting).

United States v. Clayton, __ M.J. ___, No. 08-0417/AR (C.A.A.F. March 26, 2009) (Judge Baker writing for the majority to reverse a finding of guilty and the sentence on Crawford v. Washington grounds with Judge Stucky separately concurring in part and in the result).

Today's daily journal update included a bumper crop of what I guess will be called "Rodriguez orders" directing appellants to demonstrate that their petitions shouldn't be dismissed as untimely filed. See United States v. Rodriguez, 67 M.J. 110 (C.A.A.F. 2009).

Wednesday, March 25, 2009

Denedo argument recap Pt II

Following Mr. Shah's observation that the UCMJ didn't limit or extinguish coram nobis rights, but rather provided some coram nobis-type of relief within the military justice system for the first time, Justice Ginsburg introduced a new topic that would reappear later in the argument. She suggested that coram nobis relief doesn't require an independent grant of jurisdiction but rather jurisdictionally rests on the original criminal conviction. Justice Kennedy picked up the point, asking whether coram nobis requires an independent source of jurisdiction and then answering that question himself: "I should think not." When Mr. Shah sought to swat that argument with Clinton v. Goldmsith, Justice Kennedy swatted back, saying that the "source of jurisdiction" for coram nobis relief is the jurisdiction that the court previously asserted.

Justice Breyer then joined the conversation. Mr. Shah had clerked for Justice Breyer, and it was obvious that there was a warmth between the two. Justice Breyer repeatedly thrust at Mr. Shah, but they were good-natured thrusts that suggested this was merely the latest in a long history of verbal sparring between the two. Justice Breyer offered a hypothetical in which there's a transcription error in a court-martial record that suggests the accused was convicted of a more serious offense than was actually the case. Mr. Shah began to parry with, "If he is still within custody --" Justice Breyer refined his hypo to specify that the accused was no longer in confinement when the mistake was discovered. Mr. Shah then began to catalog the avenues available for collateral relief for six years. Justice Breyer responded predictably, but nevertheless to great laughter from the bench and the gallery, "No, this is 7 years." Mr. Shah returned to his up-a-creed-without-a-paddle response he had previously given to Justice Ginsburg and Justice Stevens. An exchange followed in which Mr. Shah tried to suggest how unusual such a scenario would be and Justice Breyer seemed to suggest how awful such a scenario would be.

Justice Souter then returned to the question of whether previous jurisdiction provides current jurisdiction for coram nobis purposes -- the Clinton v. Goldsmith question. Mr. Shah again answered that Congress indicated it didn't intend to provide coram nobis relief in the military beyond Article 73's petition for new trial procedures. He argued, "We know that Congress intended to occupy the field when it passed Article 73."

Mr. Freedus then argued for Denedo. Just two sentences into his argument, Justice Scalia pounced. Mr. Freedus began his argument by saying, "Because they are courts, appellate military courts must have coram nobis power to protect the integrity of their judgments." Justice Scalia responded: "What do you mean, 'they must'? Do you think it's unconstitutional to deprive them of that?" And with that, Justice Scalia and Chief Justice Roberts proceeded to beat Mr. Freedus about the head and shoulders for several fruitless minutes over the question of whether it would be unconstitutional to deprive military courts of coram nobis power. Justice Stevens tried to assist, asking, "Are you contending that the result you seek is constitutionally compelled? I didn't think you were." Mr. Freedus replied, "we aren't. . . . I was more responding to the Chief Justice's --" But Justice Scalia wouldn't allow the Good Samaritan's intervention. He interjected, "And you were saying it is. Just say, 'No, it's no constitutionally compelled' and I'll be happy." Mr. Freedus wisely responded, "No, Your Honor." Justice Kennedy then tried to come to Mr. Freedus rescue, suggesting, "You might say that there is a lurking constitutional question and that we out to interpret the statute to avoid a constitutional concern." Mr. Freedus responded, to widespread mirth, "I think, Your Honor, that's the best answer that I should have given." The Chief Justice, however, was immune to that argument's charm. He responded, "I don't like it very much," and he and Justice Scalia resumed the beating, with Justice Scalia emphasizing that no coram nobis relief was available to servicemembers for 200 years.

Justice Ginsburg was finally able to extricate Mr. Freedus by asking him to explain the basis for coram nobis jurisdiction. Following Mr. Freedus's answer, he and Justice Breyer engaged in a lengthy exchange that included discussion of the kinds of claims that can be advanced through a petition for a writ of error coram nobis.

Justice Breyer than introduced another key point: if a former servicemember who has been discharged wins coram nobis relief, can he ever be retried? And if not, isn't that essentially a windfall? Chief Justice Roberts was dissatisfied with the first answer to this question and pressed the point. Mr. Freedus then offered an analogy that seemed to satisfy Justice Breyer, who vigorously nodded his head as if he were a Green Bag Justice Breyer bobblehead after Mr. Freedus answered that "there is a classic distinction between the habeas and the coram nobis petitioner." He noted that a successful federal coram nobis petitioner wins relief "long after a statute of limitations had expired," they might also be immune to further prosecution.

Justice Breyer then revisited the issue of whether IAC is a proper subject for coram nobis relief. Mr. Freedus responded by referring to a Fifth Circuit case (United States v. Castro, 26 F.3d 557 (5th Cir. 1994)) and an unpublished Ninth Circuit case (Kwan) indicating that coram nobis relief is available for IAC claims. Justice Ginsburg asked if any military courts had granted coram nobis relief for IAC. Mr. Freedus responded that other than this case, he didn't know of any military cases where coram nobis relief was sought for IAC. A discussion of the frequency of military coram nobis petitions followed. Mr. Freedus summed it up by observing that "they are rarer than hen's teeth."

Following a discussion of the availability of habeas relief within the military justice system, Chief Justice Roberts observed, "The problem with your position is that it would dramatically expand the jurisdiction of the military system. It would sort of follow everybody they've dealt with around for their life." Mr. Freedus was forced to agree with Chief Justice Roberts' observation that "[a]t any time somebody is out of the military system, whose judgment is supposedly final under the provisions that Congress has established, he could come back and knock on the door 20 years later and say, ' I want to review my conviction.'"

Justice Kennedy and Mr. Freedus than had an exchange in which Mr. Freedus explained DuBay hearings to the Court and, without mentioning the case by name, explained the Ginn framework for deciding when DuBay hearings are required. During his rebuttal, Mr. Shah would make a mistake when addressing the DuBay hearing, incorrectly saying that a DuBay hearing requires the convening of a new court-martial.

When Justice Ginsburg asked whether the Supremes have ever held that military courts have habeas jurisdiction, Mr. Freedus answered yes, citing Noyd v. Bond, 395 U.S. 683 (1969). Chief Justice Roberts countered that Noyd concerned a habeas petitioner who was still in the military. An arcane discussion of footnote 11 of Clinton v. Goldsmith followed.

When Mr. Freedus then tried to rely on DOD General Counsel Taft's 1983 testimony to a House committee concerning the availability of coram nobis relief in the military justice system, Chief Justice Roberts responded: "this is at a hearing. This isn't a Member of Congress, obviously, that we're talking about. It's not even a single Member of Congress." Never in the argument did anyone point out that the UCMJ legislative history concerning Article 73 that Mr. Shah repeatedly invoked was a quotation from DOD Assistant General Counsel Felix Larkin at a House committee hearing. See Uniform Code of Military Justice: Hearings on H.R. 2498 Before a Subcomm. of the H. Comm. on Armed Forces, 81st Cong. 1211 (1949).

An unenlightening exchange between Chief Justice Roberts and Mr. Freedus followed concerning whether the legislative history of the Military Justice Act of 1983 contemplated that coram nobis relief would remain available after the servicemember was discharged.

Returning to the question of whether Denedo could ever be retried if he won coram nobis relief, Mr. Freedus suggested that "if there were a personal jurisdiction loophole here, like there was for the MEJA, the Military Extraterritorial Jurisdiction Act, Congress could fix it in a heartbeat." Mr. Freedus then reemphasized the small number of coram nobis cases within the military justice system, which led Chief Justice Roberts to ask, "You don't think that if you prevail in this case, we're going to see a lot more coram nobis petitions than we did before?"

Following Mr. Freedus's answer, Mr. Shah arose for three minutes of rebuttal. Justice Scalia started by asking whether a discharged servicemember who won wins a reversal of his conviction can be retried by the military. Mr. Shah responded, "Not if he has passed his enlistment period, no, Your Honor. The government's view is they would not be able to retry him."

Mr. Shah then set out to make four brief points. He ran out of time after the third, but in sharp contrast to the practice of Chief Justice Rehnquist, Chief Justice Roberts suggested, "Why don't you briefly make your fourth point." He did and then it was over.

The opinion will be out sometime before July.

[DISCLAIMER: I am counsel of record on a cert petition that endorses the SG's position in Denedo.]

Denedo argument recap Pt I

Here's my overly long report on today's Denedo argument.

First for the red carpet report. The audience for the argument included Judge Stucky and Senior Judge Crawford, who moved an attorney's admission to the Supreme Court bar.

After Justice Scalia announced the Court's opinion in Puckett v. United States and a number of counsel were admitted to the Court's bar (including CAAF Clerk Bill DeCicco's daughter and son-in-law, whose admission was moved by Mr. DeCicco), Chief Justice Roberts called the Denedo case.

The argument would be extremely engaging. All of the justices asked multiple questions except for Justice Thomas who, as usual, asked none. Chief Justice Roberts would emerge as the defense's most vehement critic. And Justice Breyer would appear to be genuinely undecided, openly wrestling with the issues the case presented throughout the argument.

As petitioner's counsel, Pratik Shah of the S.G.'s office went first.

Early in Mr. Shah's argument, Justice Ginsburg seemed to signal doubt with the U.S.'s argument that Article 76 precludes further review within the military justice system, suggesting that Article 76 "simply codified the rule that applies ordinarily in criminal cases, in civil cases, stating when a judgment becomes final for preclusion purposes." Mr. Shah responded that Gusik v. Schilder, 340 U.S. 128 (1950), and Schlesinger v. Councilman, 420 U.S. 738 (1975), indicated that Article 76 "marks the end of proceedings within the military court system."

Justice Ginsburg then introduced a theme that would continue to resonate through much of the argument: if Denedo can't get relief from CAAF, where can he get relief? Mr. Shah responded that Denedo is up a creek without a paddle: "it appears that Respondent no longer has any further remedies" to pursue.

Mr.Shah then began to discuss the military justice system's history, noting the historic limitations on review of court-martial convictions. After Mr. Shah mentioned CAAF's creation, Justice Kennedy suggested that coram nobic relief serves "to protect the integrity of the court," seeming to suggest that coram nobis power may be an inherent authority of a "court." Mr. Shah responded by emphasizing the military's interest in finality to conserve its resources.

Justice Stevens then returned to the point Justice Ginsburg raised earlier -- Denedo no longer has any avenue for relief outside the military justice system. Justice Ginsburg continued the line of inquiry, pointing out that Denedo had never been threatened with deportation during the six years that he could have launched a collateral attack outside the military justice system.

Justice Souter then asked Mr. Shah whether he agreed that under United States v. Morgan, 346 U.S. 502 (1954), a civilian defendant similarly situated to Denedo could seek coram nobic relief. Justice Souter also sought agreement that Article I courts can provide relief under the All Writs Act. And he noted DOD General Counsel William Taft IV had testified to a House committee that coram nobis relief would be available from Article I courts. (It was a very long question.) He concluded, "And if that is so, isn't the kind of most reasonable way to construe the statute, including Article 76, as allowing for this?" Mr. Shah responded that Mr. Taft's testimony wasn't from the time the UCMJ was enacted, but rather during consideration of subsequent amendments. An exchange between Mr. Shah and Justice Souter then followed concerning the Military Justice Act of 1983 and the powers of the boards of correction.

Mr. Shah then introduced the key topic of Article 73 in the UCMJ, which governs petitions for new trial. He noted that Article 73's legislative history indicated that its drafters intended Article 73 to be the extent to which coram nobis relief was available in the military justice system.

Justice Souter said that his recollection was that Article 73's legislative history didn't indicate that no coram nobis relief was available beyond Article 73. This provide one of the key moments of the oral argument. Mr. Shah saw an opening and attacked like a defensive lineman bullrushing an off-balance guard:

[T]his appears on pages 25 to 26 of the government's brief, and it says: "What we did was to combine what amounts to a writ of error coram nobis with a motion for a new trial on newly discovered evidence. We have provided for both of them and to our minds they are the only additional circumstances over and above the appeal that need a remedy.
As Justice Souter laid on the ground pulling clumps of sod out of his helmet, he responded, "Okay, I see." Mr.Shah pressed the advantage:

So I think that's conclusive on this point and provides a firm ground on which to distinguish this Court's decision in Morgan, which you referenced earlier, that applies coram nobis in the Article III system. Congress considered it for the Article I system and rejected it in the military courts.
Mr. Shah then provided another masterful response, this time answering a question from Justice Alito:

JUSTICE ALITO: Does that mean that your argument boils down to the proposition that the relevant provisions of the UCMJ were intended to eliminate coram nobis, or is there more to your argument than that?

MR. SHAH: I don't think it's to eliminate coram nobis. It was never available within the military court system.
In a further exchange with Justice Alito, he explained, "As of the enactment of the UCMJ in 1950, coram nobis relief had never been available within the military justice system." Mr. Shah then returned to Article 73, characterizing it as the only avenue for post-conviction relief within the military justice system other than direct appeals.

Denedo argument transcript

The Denedo argument was fascinating. I hope to write a lengthy post about it tonight. In the meantime, here's something more important: a link to the argument transcript via SCOTUSblog.

Tuesday, March 24, 2009

Interesting CAAF summary disposition

While I can't find ACCA's opinion in the case, this issue that CAAF summarily disposed of is interesting:

United States v. Davis, __ M.J. ___, No. 08-0808/AR (C.A.A.F. March 19, 2009). CAAF summarily remanded the case for ACCA "to obtain an affidavit from trial defense counsel that responds to Appellant's allegation of ineffective assistance of counsel" and then consider the issue under the Ginn framework. See United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997).

Another Code 46 request for more time to seek certification

On 25 November 2008, in United States v. Bradley, NMCCA set aside the findings to assault with a means likely to cause grievous bodily harm and reckless endangerment by discharging a firearm, as well as the sentence, due to the accused's misunderstanding of the effect of his guilty plea. United States v. Bradley, No. NMCCA 200501089 (N-M. Ct. Crim. App. Nov. 25, 2008). The court concluded that neither Seaman Bradley nor his counsel understood his plea of guilty waived "his right to appeal the military judge's denial of his motion to remove the trial counsel from his case due to a violation of Kastigar v. United States, 406 U.S. 441 (1972)."

As the government does so often when it loses on appeal, Code 46 sought reconsideration. The panel denied reconsideration on 9 March.

Now Code 46 has asked CAAF to extend the time for the Judge Advocate General of the Navy to certify the case. United States v. Bradley, __ M.J. ___, No. 09-5002/NA (C.A.A.F. March 20, 2009).

New CAAF grant

On Thursday, CAAF granted review of the following issues in an Army case:


United States v. Lubasky, __ M.J. ___, No. 09-0043/AR (C.A.A.F. March 19, 2009).

ACCA's decision in the case is available here. United States v. Lubasky, No. ARMY 20020924 (A. Ct. Crim. App. July 29, 2008). A previous ACCA decision in the case, which looks like it's more relevant to the granted issues, is available here. United States v. Lubasky, No. ARMY 20020924 (A. Ct. Crim. App. Jan. 31, 2006).

Senator Feingold introduces bill to abolish federal death penalty -- including the military's

While we already know the bill's fate, Senator Russell Feingold (D-Wis.) has introduced the Federal Death Penalty Abolition Act of 2009 (S. 650), which would abolish all federal death penalties, including the military's. The bill's text is here.

Kreutzer sentenced to life (with eligibility for parole)

As the Fayetteville Observer reports here, Sergeant William Kreutzer Jr. was sentenced this afternoon to confinement for life, a dishonorable discharge, forfeiture of all pay and allowances, and reduction to E-1. Kreutzer shot 19 soldiers at Fort Bragg in 1995, killing one. At his original court-martial, he was sentenced to death. His original death sentence and the contested findings were set aside, largely because the military judge erroneously denied a defense request for a mitigation specialist. United States v. Kreutzer, 59 M.J. 773 (A. Ct. Crim. App. 2004), aff'd, 61 M.J. 272 (C.A.A.F. 2005).

Military Justice Op-Ed

I found this morning an interesting article from Marcia Drezon-Tepler on Middle East Times online. The article, here, is the first in a two part article about the problem what special forces troops in Afghanistan and Iraq can do with non-hostile civilians that they believe are likely to give away the troops position. The article is well written and sourced, and gets the MilJus stuff relatively correct. The article is apparently a republication/update of a New York Daily News piece, here, that Ms. Drezon-Tepler wrote last year about Army Sgt Evan Vela who was convicted of murder and sentenced to 10-years as a result of an incident that allegedly involved this type of an encounter.

Monday, March 23, 2009

Web woes x 2

It appears that both CAAF's and AFCCA's web sites are down for a second consecutive day. Curiously, the Air Force JAG School web sites appear to remain up, so I'm unsure of the source of the web outages.

Sunday, March 22, 2009

Baseball and the law [Warning: Non-military justice post]

Upon my return to Casa CAAFlog yesterday, awaiting my arrival was the Winter 2009 edition of the Green Bag, which accurately identifies itself as "an entertaining journal of law." It included a letter from Professor Fishman pointing to an opinion from Judge J. Frederick Motz of the U.S. District Court for the District of Maryland discussing how to turn a name ending in an "s" into a possessive and using two Baltimore Orioles outfielders' to explore the question. Here's the relevant excerpt from Judge Motz's opinion:

Many excellent writers, including some law clerks and former law clerks, take the position that an " 's " must be added to a name ending in "s" when using the possessive form. Strunk and White so command. William Strunk, Jr. & E. B. White, The Elements of Style 1 (3d ed. 1979). Others never add an " 's ". There is also authority permitting what might be called a hybrid approach: adding an " 's " when the "s" in the possessor's name sounds like an "s" but omitting the "s" where (as here) the sound of the "s" in the possessor's name is "z." The Chicago Manual of Style § 6.30 (Univ. of Chi. Press, 14th ed. 1993).

For example, during the top of an inning at Camden Yards, "Markakis's catches" in right may be applauded while "Jones' throws" from center are cheered. This hybrid approach has the virtue of marrying the written word and the spoken tongue and contributes to the growth of English as a living language, unconstrained by archaic and inflexible rules.

The Supreme Court is divided on this important issue. See Kansas v. Marsh, 126 S. Ct. 2516 (2006) (Thomas, J.) (omitting "s" when using the possessive form of words ending in "s"); id. at 2541 (Souter, J., dissenting) (adding "s" universally to the possessive form of words ending in "s"); id. at 2529 (Scalia, J., concurring) (following the hybrid approach). Presumably, my adoption of the hybrid approach is subject to a deferential standard of review, even by those more classically inclined.
United States v. Dinkins, 546 F. Supp. 2d 308, 309 n.1 (D. Md. 2008).

The Winter 2009 edition of the Green Bag also announces that publication's formation of a "fantasy" or rotisserie league in which team owners will pick members of Congress based on their anticipated scores in categories such as:

Bills introduced
Bills passing Senate
Bills passing House
Bills reported
Bills signed/survived veto
Voting attendance
Earmarks per capita
Campaign contributions per capita
Press releases issued
Hill publication appearances
C-SPAN appearances
Television talk-show appearances
Colbert Report/Daily Show appearances

The league is called FantasyLaw. It doesn't yet but will soon have its own web site here. For now, you can find a description of the entire enterprise here.

ACCA's Savage opinion

As foreshadowed in Friday's No Man-enhanced post on Savage, the case involves the defense's theory that the accused repeatedly stabbed his victim while in a "parasomniac" state. United States v. Savage, __ M.J. ___, No. ARMY 20060167 (A. Ct. Crim. App. March 19, 2009).

ACCA ruled that parasomnia is "a 'mental condition' as defined by Mil. R. Evid. 302." Id., slip op. at 8. Accordingly, ACCA concluded, there was nothing wrong with the prosecution receiving the long-form R.C.M. 706 report, which one of PVT Savage's military defense counsel had turned over to the trial counsel. Id., slip op. at 9. While ACCA concluded that MRE 302 didn't allow the government to receive PVT Savage's statements to the 706 board unrelated to his sleep history, ACCA held that the defense didn't properly preserve that error by seeking the trial counsel's disqualification due to the receipt of privileged information. (ACCA writes that "even if there was error, the defense did not seek the appropriate remedy." Id., slip op. at at 9. The previous sentence, however, appears to definitively find error: "the government was not entitled to appellant's other statements made during the course of the sanity board unrelated to his sleep history." Id.)

ACCA also rejected an argument that PVT Savage's military defense counsel provided ineffective assistance of counsel when he turned over the entire 706 report to the TC. Id., slip op. at 12. ACCA found that it wasn't unreasonable for the defense counsel to give the TC the entire report. The court found the DC was authorized to do so, that when he did so the defense intended to rely on a lack of mental responsibility defense, and that Appendix 22 to the MCM suggests that when the defense relies on lack of mental responsibility, it may be appropriate to turn over the entire 706 report to the government. Id., slip op. at 13. ACCA also found that no prejudice arose from turning over the whole report. Id.

ACCA also found that the evidence was legally and factually sufficient to support a finding of guilty to premeditated murder. Id., slip op. at 14-16.

Op-ed on DOD's sexual assault report

Yesterday's New York Times ran this op-ed by Bob Herbert about the recent DOD report on sexual assault, which we noted here.

Mr. Herbert rips DOD for suggesting that the increase in reported sexual assaults "is encouraging." He writes:

The Department of Defense has taken a peculiarly optimistic view of the increase in the number of reported sexual attacks. The most recent data is contained in the annual report that the department is required to submit to Congress. The report says that "the overall increase in reports of sexual assault in the military is encouraging," and goes on to explain:

"It should be noted that increased reports of sexual assault do not reflect a rise in annual incidents of sexual assault. Sexual assault is one of the most under-reported crimes in the United States. Estimates suggest that only a small percentage of sexual assaults are ever reported to the police. The department suspects that the same is true for military society as well. An increase in the number of reported cases means that the department is capturing a greater proportion of the cases occurring each year."

How's that for viewing hideous statistics through rose-colored glasses? If the number of reported cases of rape goes sky-high over the next fiscal year, that will mean that the military is doing an even better job!
It is difficult to understand how DOD could purport to know that "increased reports of sexual assault do not reflect a rise in annual incidents of sexual assault." While a rise in the reported number of assaults might not reflect a rise in the actual number of assaults, how could DOD know that it doesn't?

This week in military justice -- Denedo oral argument edition

This week at the Supremes: The Supreme Court will hear oral argument in United States v. Denedo, No. 08-267, at 1000 Wednesday. SCOTUSblog provides this link to a listing of counsel for March oral arguments. Assistant to the Solicitor General Pratik A. Shah will argue for the United States and Matthew S. Freedus will argue for Denedo. I'll be there. I hope to post some thoughts about the argument Wednesday evening.

This week at CAAF: CAAF's web site is down, but my recollection is that it has no arguments scheduled for this week.


Saturday, March 21, 2009

Some thoughts about Webb

Senior Airman Webb reached the end of his enlistment contract on 23 October 2008. Webb was informed that he was under investigation for criminal misconduct (AWOL and drug use) and would be put on legal hold. He nevertheless went to the Air Force Personnel Center (AFPC), which is tasked with (among other missions) discharging service members. Even though Webb didn't properly complete the discharge procedures, AFPC mailed him a DD 214 on 24 October 2008. The form indicated that Webb was discharged as of 23 October 2008. On 12 November 2008, DFAS issued Webb his final accounting of pay.

Finally, on 21 November 2008, Webb's unit realized that he was gone. He was apparently declared a deserter and was apprehended on 5 December 2008. Initial charges were preferred against him on 11 December 2008.

The issue in Webb is whether, under these facts, the military still has personal jurisdiction to court-martial him. Yes, held AFCCA in a published 2-0 opinion written by Senior Judge Francis. (One of the judges on the panel didn't participate in the case and no judge was substituted for her.)

The key statute at issue is 10 U.S.C. § 1168(a), which provides: "A member of an armed force may not be discharged or released from active duty until his discharge certificate or certificate of release from active duty, respectively, and his final pay or a substantial part of that pay, are ready for delivery to him or his next of kin or legal representative." It would appear that both of those conditions were satisfied. Not so, ruled AFCCA.

AFCCA notes that "Section 1168(a), imposes only two requirements: a discharge certificate and a final accounting of pay." United States v. Webb, __ M.J. __, No. 2009-01 (pet), slip op. at 8 (A.F. Ct. Crim. App. March 20, 2009). The court acknowledges that Webb received his final accounting of pay on 12 November 2008. Id., slip op. at 9. AFCCA also observes that it is "undisputed that on 24 October 2008, a 'separations technician' at AFPC mailed the petitioner a discharge certificate, bearing an effective date of 23 October 2008, The DD Form 214 appears on its face to be correct and nothing within the document purports to preclude it from taking effect on the date indicated." Id. But the court holds that the discharge wasn't effective because it "was issued in violation of applicable Air Force regulatory guidance and was therefore without legal effect. Accordingly, the petitioner was not legally 'discharged' from the Air Force and remains subject to military jurisdiction." Id.

AFCCA cites an Air Force Instruction indicating that AFPC is only supposed to discharge a service member upon the member's "completion of the clearing process established by the Air Force." Id. (quoting AIr Force Instruction 36-3208, ¶ 1.11.14). Part of the proper outprocessing for Webb would have been to check out with his unit and with the Military Personnel Flight. Id., slip op. at 10. Had he done either, his discharge likely would have been prevented. Id. The court also indicates that AFPC shouldn't have issued the discharge because the SJA had tried to notify AFPC to place Webb on legal hold before he was discharged. Id. Accordingly, "the separations technician's clerical act of issuing the DD Form 214 was in direct violation of the limitations imposed by the Secretary of the Air Force through applicable regulations and therefore exceeded the technician's authority." Id. "Because the discharge certificate was issued in contravention of requirements established by order of the Secretary of the Air Force, and against the intent of the petitioner's commander, it was without legal effect and therefore void or voidable. The petitioner therefore remained subject to military jurisdiction." Id. (internal citations omitted).

CAAF usually summarily denies writ appeals. But assuming that Webb files a writ appeal, I hope that CAAF gives it plenary review. There may be an early test of CAAF's view of the case because the opinion tells us that Webb's court-martial is set to resume on 30 March, id. at 2 n.2, so presumably CAAF will soon receive a request to enjoin the court-martial from proceeding until it hears a writ appeal in the case.

AFCCA's opinion has some troubling implications. There seems to be no question that an individual who has the actual authority to issue discharge certificates issued one to Webb. The government's argument essentially is that its own agent shouldn't have done what she did. If that argument prevails, then there seems to be no temporal limit on the government's ability to court-martial a former servicemember as long as the government can later point to some defect in the check-out procedures. I've been mobilized twice in the last six years. I was issued DD 214s by different units when I completed each mobilization. One unit was very methodical. The other, well, wasn't. I would be more surprised if the less methodical unit actually did everything it was supposed to before discharging me from active duty than if it didn't. And if it missed a step and if AFCCA's reasoning in Webb were to govern throughout the military justice system, then I guess I'm still subject to court-martial jurisdiction for anything I did during my mobilization and since.

Presumably Congress adopted 10 U.S.C. § 1168(a) to establish a fairly bright line to divide those still in the military from those who aren't. Webb considerably dulls that line's brightness. Of course, that doesn't necessarily mean the opinion is wrong. But it does suggest that the opinion is extremely important and is thus worthy of CAAF's full review on the merits.

AFCCA's new published personal jurisdiction opinion

Here's a link to AFCCA's new published decision denying a petition for extraordinary relief challenging personal jurisdiction to try an Airman who had received a DD 214 and a final accounting of pay before being declared a deserter, apprehended, and returned to military control to face trial by court-martial. United States v. Webb, __ M.J. __, No. 2009-01 (pet) (A.F. Ct. Crim. App. March 20, 2009). (It's a big file and takes a while to load, so please be patient.) I'll post some thoughts about it after Maryland vs. Memphis.

Military judge denies mistrial in Behenna but recommends 7 year cut in confinement

Here's a link to a news report about yesterday's ruling in 1LT Behenna's court-martial in which the military judge denied a mistrial motion based on an alleged Brady violation but recommended to the convening authority that he reduce the adjudged confinement by seven years.

Friday, March 20, 2009

AFCCA issues published opinion denying extraordinary relief

AFCCA today issued a published opinion denying extraordinary relief to a petitioner who challenged his return to active duty to face a court-martial after having been discharged. I'll post the opinion tomorrow.

New published ACCA decision - Updated

ACCA issued a new published decision dated yesterday, United States v. Savage, No. 20060167, which is available on its web site, here. (I don't seem to be able to paste in a link location on this computer, sorry!--Done) I'll post about it over the weekend once I'm home following tonight's redeye flight back to the Mainland.

Update: Here is a summary of the claims that ACCA denies. As the case involves Navarcolepsy I thought I'd at least add that this one is a real sleeper.
These three assignments of error relate directly or indirectly to appellant’sclaim that, at the time he stabbed the victim, he was asleep due to a sleep disorder called parasomnia. Appellant’s parasomniac explanation is relevant to the factual and legal sufficiency of the evidence and also implicates appellant’s privilege to prohibit disclosure and use of statements made during a mental health evaluation ordered pursuant to Rule for Courts-Martial (R.C.M.) 706. We must determine when it is appropriate for defense counsel to disclose such statements and how the government can use the statements at trial to rebut a claim that a crime occurred during a parasomniac episode.
I'll leave a summary of how to CAAFlog.

Thursday, March 19, 2009

CRS report on SCOTUS review of military justice cases

Here's a link to a 30 January 2009 Congressional Research Service report called, "Supreme Court Appellate Jurisdiction Over Military Court Cases." h/t nbm3

A Cox Commission puzzler

I was excited to notice that NIMJ's web site now has a Cox Commission tab. I was intrigued to see that that tab has a "Tentative Cox Commission Schedule" link. And I was perplexed when I clicked through and found the following:
"Lorem ipsum dolor sit amet, consectetur adipisicing elit, sed do eiusmod tempor incididunt ut labore et dolore magna aliqua. Ut enim ad minim veniam, quis nostrud exercitation ullamco laboris nisi ut aliquip ex ea commodo consequat. Duis aute irure dolor in reprehenderit in voluptate velit esse cillum dolore eu fugiat nulla pariatur. Excepteur sint occaecat cupidatat non proident, sunt in culpa qui officia deserunt mollit anim id est laborum."
Stymied, I stumbled across this explanation by the ever-helpful Cecil Adams.

Can anyone shed more light on this curious text?

Kreutzer convicted of greater offenses

The AP reports here that the military judge presiding over Sgt William Kreutzer's case found him guilty of 16 specs of attempted premeditated murder. Kreutzer had reportedly pleaded guilty to 17 specs of aggravated assault. The military judge reportedly found him guilty of the greater offenses on Tuesday. We'll try to let you know when Kreutzer is resentenced.

Wednesday, March 18, 2009

S.G. waives response in Wuterich

The S.G. today waived the United States' right to respond to the cert petition in Wuterich v. United States, No. 08-1133.

Shameless Plug: ABA-CLE Criminal Accountability for Civilians in the Battle Space

Last chance to register for the on-line ABA-CLE tomorrow on Criminal Accountability for Civilians in the Battle Space. The program will cover the application of amended Art. 2(a)(10), UCMJ to civilians and US government contractors, my favorite topic, as well as MEJA and Special Territorial and Maritime Jurisdiction. Note, I am moderating the panel, thus why this is a shameless plug. That may discourage registration, but I'll take that chance.

Link to registration page here. Sorry, no CAAFlog reader discount could be negotiated.

Air Force Court-Martials Nurse in Euthanasia Case

As CNN and various other news outlets, here, are reporting, the Air Force has preferred murder charges against an active duty nurse stationed at Wilford Hall Medical Center on Lackland Air Force Base. The charges relate to alleged over dosing of two terminally ill patients.

The Art. 32 hearing is likely to be scheduled in the next few weeks, according to the reports. The AP report, courtesy of the Houston Chronicle, contains my least favorite go to media line about courts-martial, "An Article 32 hearing, the military equivalent to a grand jury proceeding, . . ." We'll keep you updated on this interesting case and any word from the defense on . . . defenses.

Reports of sexual assaults in the military up 8% in FY 08

It's being widely reported that a new DOD report reveals that reports of sexual assaults were up 8% in FY 08 compared to FY 07. And reports of sexual assault were up 26% in Iraq and Afghanistan. Here's a link to the Army Times' report on the report. The DOD report and the individual services' reports are available here.

Tuesday, March 17, 2009

Audio of St. Patrick's Day CAAF arguments is up

Happy St. Patrick's Day. CAAF today heard oral argument in two Marine Corps cases. Here's a link to the audio from United States v. Weston, No. 08-0594/MC. And here's a link to the audio from United States v. Paige, No. 08-0805/MC.

SCOTUSblog preview of Denedo argument

SCOTUSblog (a.k.a., the Greatest Blog on Earth) has posted this preview of next Wednesday's argument in United States v. Denedo, No. 08-267.

Article on Sgt Foster's release from USDB

We previously discussed NMCCA's unpublished but significant ruling setting aside the findings and sentence in the Foster case. United States v. Foster, No. NMCCA 200101955 (N-M. Ct. Crim. App. Feb. 17, 2009). Via NIMJ's web site, here's a link to a San Diego Union Tribune article about Sgt Foster's release from the USDB after spending more than nine years in confinement.

CAAF grant

As reported by Phil Cave's Court-Martial Trial Practice blog, CAAF yesterday granted review of the following issue in United States v. Morton, No. 09-0185/AR:
ACCA's unpublished opinion in the case is available here. United States v. Morton, No. ARMY 20060458 (A. Ct. Crim. App. Sept. 30, 2008).

Chessani: this took 9 months?

Chessani is a strange little opinion. It's a unanimous unpublished opinion from a three-judge panel in an Article 62 case, which a CCA is statutorily required to expedite. It's hard to understand how it could have taken nine months from the government's appeal to the issuance of this opinion.

NMCCA first determines that the defense made a sufficient case to shift the burden to the government to demonstrate lack of unlawful command influence. In the key portion of its opinion, NMCCA then reasoned:

Despite having the burden of proof, the Government presented no evidence to ameliorate the "potential improper influence flowing downwards" specifically the appearance that the MARCENT SJA's legal advice may have been impermissibly influenced by Col Ewers' presence or participation in the CDA legal meetings. Such an appearance was further supported by Col Ewers' stellar reputation, seniority, long-term relationship with the CDA, personal knowledge of and well-known opinions regarding this case forged by his role as an investigator on the reporting and follow-on actions regarding the Haditha incidents. Record of 7 May 2008 at 14, 15. In fact, Col Ewers testified that he had anticipated, based on his history with LtGen Mattis and the fact that he was the senior SJA, that he might be asked his opinion on MARCENT matters. Record of 2 Jun 2008 at 90.

Notably, five of the seven legal conclusions reached by the military judge address the Government's failure to prove beyond a reasonable doubt that the MARCENT SJA, or his legal advice, was not impermissibly influenced by Col Ewers' presence at, or participation in, the legal meetings with the CDA. Although we have not and need not decide whether Col Ewers' presence actually chilled or otherwise impermissibly influenced the legal advice of the MARCENT SJA, (nor whether any potential chilling was intentional or unintentional), we are convinced the Government failed to meet its burden of demonstrating, beyond a reasonable doubt, that these proceedings were untainted by the appearance of UCI. We are similarly convinced that an objective, disinterested observer, fully informed of all the facts and circumstances, would harbor significant doubt about the fairness of this proceeding.

Thus, we are left to conclude that the Government has failed to prove beyond a reasonable doubt there was no apparent UCI.
The opinion proceeds as if its ultimate destination is a total affirmance of the military judge's ruling, but then sharply veers off course near the end. Without providing any supporting explanation or analysis, NMCCA announces:
We further conclude that the military judge's disqualification of Joint Forces Command organization, except to the extent that it involves Gen Mattis in his individual capacity, is not supported by factual findings in the record, and therefore is an abuse of discretion.
The very next sentence states, "For the foregoing reasons, the Government's interlocutory appeal is denied." Huh? If NMCCA reversed part of the military judge's remedy, as it did in the preceding sentence, then isn't the government's appeal necessarily granted in part? Shouldn't the decretal paragraph have read that the appeal was denied in part and granted in part?

Having devoted nine months for the marginal benefit of undisqualifying Joint Forces Command members other than General Mattis, will the government finally get on with the merits of the Chessani case or is there a petition for en banc rehearing or certification in its future? (If there were a certification and the Supreme Court's Denedo opinion -- which will likely be released near the end of June -- were to include any dicta that cast doubt over CAAF's decision in Lopez de Victoria, a certified Chessani case could become a vehicle for revisiting that decision.)

NMCCA issues Chessani opinion

Greetings from a cloud-covered, but still pleasant,Waikiki.

Here's a link to NMCCA's unpublished opinion in Chessani, which it released today. Bottom line up front: the Government's appeal is denied.

Monday, March 16, 2009

Golden CAAF II

With Denedo well underway, I thought the time was right to introduce Golden CAAF II. GC2 is seen here transiting the Suez, with the Sinai Peninsula in the background. I'm told it was the site of an initially well-received but ultimately unsatisfactory prototype.

Friday, March 13, 2009

Wuterich Qualified Privilege Ruling Appealed (?)

I am trying to confirm through three sources that the government has filed a notice of appeal in the Wuterich court-martial. As we covered, here, yesterday, Judge Meeks ruled that CBS News had a qualified newsgatherer privilege and withheld tapes containing unaired video of an interview with the accused, SSgt Frank Wuterich. LtCol Meeks also commented that he thought there was nothing new on the tapes that was not already available to the government. Two sources have said that the government has reportedly ignored our incantations, and told Judge Meeks that the unaired portions of the video tapes that they have not seen constitute "evidence that [would be nice to have] of a fact material in the proceeding." Anyone able to confirm? Email us, here, the ruling and/or the notice of appeal if it was filed.

Next week in military justice

In Great Santini fashion, I'll be starting a family vacation at a ridiculously early hour tomorrow. My blogging volume will be greatly reduced over the next week. So I'm getting a jump on Sunday with a special "Next week in military justice."

Next week at the Supreme Court: The SCOTUS military justice event of the decade will be the week after next when Denedo is argued on 25 March.

Next week at CAAF: CAAF will hear two oral arguments next week, both on St. Patrick's Day and both in Marine cases. I would speculate that CAAF was trying to ensure that counsel would be wearing green, but the appellate government counsel in the second case is a Navy officer. (A scheduled 16 March oral argument sitting was scratched from the calendar.) The first oral argument will be in United States v. Weston, No. 08-0594/MC, where the granted issues are:


NMCCA's en banc opinion is published at 66 M.J. 544.


NMCCA's unreported decision in the case is available here.


Also next week, on Wednesday Chief Judge O'Toole of NMCCA will be making a presentation to the JAA American Inn of Court called, "Trial Preparation by Reverse Engineering." Information about the event is available here.

Next week at the court-martial trial level: We understand that the military judge in the Behenna case is expected to hear post-trial oral argument on a Brady violation allegation on Friday.

Another new CAAF grant

CAAF has now granted review of seven cases over the last fortnight. The latest is the Coast Guard case of United States v. Smith, No. 08-0719/CG, where the granted issue is: "WHETHER THE MILITARY JUDGE VIOLATED APPELLANT'S CONSTITUTIONAL RIGHT TO CONFRONT HIS ACCUSERS BY LIMITING HIS CROSS-EXAMINATION OF [SR], THE GOVERNMENT'S ONLY WITNESS, ON THREE OF THE FIVE CHARGES." The Coast Guard Court's opinion in the case is published at 66 M.J. 556. We previously discussed the case here.

SG's reply in Denedo

Here, courtesy of the ABA, is a link to the SG's reply brief in Denedo.

Sailor Acquitted in Detainee Abuse Case

As the Florida Times Union reports, here, and Navy TImes report, here, the last Navy sailor accused of wrongdoing in the Camp Bucca detainee abuse incident was acquitted yesterday of all charges. Machinist Mate Second Class Jonathan Armstrong was acquitted of charges that he and another Petty Officer, according to the report, "pushed the [detainee] to the ground and then punched and kicked him while [Chief Petty Officer] Necaise held him down." According to the FTU, "Armstrong defended himself by saying that in beating the man he was obeying the order given by Necaise, the guard duty officer in the area where the sailors worked."

Here is the thing about this case that disturbs me a little bit, MM2 Armstrong was assigned to Naval Shipyard Norfolk Submarine Repair Complement and was an individual augmentee to the Camp Bucca prison force. Essentially that means that Armstrong was not a prison guard or security officer by training and that he either volunteered or was volunteered to take over the duty of guarding detainees at one of the largest US military detention facilities in Iraq for 9-18 months. I am not excusing any one's conduct in any of these incidents, but Armstrong's presence at Camp Bucca was akin to the U.S. BOP walking down to the local auto repair center and asking for volunteers to go to Leavenworth, Kansas because there was a shortage of prison guards at SuperMax. While I am sure plenty of commenters will disagree with portions of that analogy (which I am leaving in because I like commentariat &*%$ storms), is it really surprising that MM2 Armstrong didn't know what to do or how to react when a detainee spit on him?

Judge Meeks Finds Qualified Newsgatherer Privilege

In a very interesting ruling yesterday, LtCol Jeffrey Meeks found that CBS was entitled to a qualified newsgatherer privilege and withheld unaired portions of a 60 Minutes interview with accused SSgt Frank Wuterich from the government. The North County Times, report here, quoted Meeks as ruling,
There is a qualified newsgatherers privilege and it is applicable here based on concerns about a chilling effect on the press. . . The press has an interest in being able to prepare and preserve stories without being an investigative arm of the government.
The most interesting part of the ruling, and the part that will likely end the Art. 62 saga in this case, was Meeks' "ruling" regarding the relevance of the unaired portions, as described by the NCT,
In his ruling Thursday after seeing it, the judge said the material in fact did not contain anything that wasn't available to prosecutors already through voluminous documents from multiple investigations of the Haditha killings."All the statements are consistent with prior statements he has made," Meeks said of Wuterich, who . . . "It might be nice to have, but it's not critical," Meeks told Gannon and two other prosecutors assigned to the case.
If the government appeals this ruling it is a travesty and abuse of the language of Art. 62(a)(1)(B), which limits an Art. 62 appeal of a ruling excluding evidence to only "evidence that is substantial proof of a fact material in the proceeding." Congress would need to amend that to read "evidence that [would be nice to have]." Code 46, if you are listening, just let the trial begin.

CAAF holds CA couldn't withdraw from PTA

It's late and I'm very tired tonight, so I'll grab Judge Erdmann's helpful synopsis of his opinion of the court in United States v. Dean, __ M.J. __, No. 08-0431/AR (C.A.A.F. March 12, 2009), and paste it here:

The parties entered into a pretrial agreement that did not include a misconduct provision authorized in Rule for Courts-Martial (R.C.M.) 705(c)(2)(D). On the eve of trial, the convening authority withdrew from the pretrial agreement because Dean would not agree to modify the stipulation of fact to include new acts of alleged misconduct. Dean moved to compel enforcement of the pretrial agreement. The military judge conducted a hearing and allowed the convening authority to withdraw. Dean subsequently entered pleas of not guilty to all charges and specifications and was convicted of several offenses by the military judge. His adjudged and approved sentence included a term of confinement that exceeded the limit set out in the pretrial agreement by sixteen months. We granted review to determine whether the military judge erred in permitting the convening authority to withdraw from the pretrial agreement. 67 M.J. 45 (C.A.A.F. 2008). We hold that under the facts of this case the convening authority did not have a right to withdraw under R.C.M. 705(d)(4)(B), and we therefore reverse the United States Army Court of Criminal Appeals.
Id., slip op. at 2.

Judge Baker dissented, disagreeing with the majority on two points. First, he thought that Dean had not begun performance under the PTA because his actions supposedly in reliance on the PTA actually preceded the CA entering the PTA. Second, he concluded that "even without an express subsequent misconduct provision, the plain terms of the agreement clearly permit subsequent and agreed upon modifications to the stipulation and permit withdrawal by either party when a proposed modification is not agreed upon." Because the defense wouldn't agree to a modification proposed by the government, Judge Baker concluded that the PTA's plain terms allowed the CA to withdraw.

Thursday, March 12, 2009

United States v. Burk: Will he or won't he? We'll know soon

We noted here that on 4 March, the Navy-Marine Corps Appellate Government Division sought an enlargement of time to provide the Judge Advocate General of the Navy an opportunity to certify United States v. Burk to CAAF. We'll know soon whether Burk will be certified or not. In a daily journal update posted today, CAAF granted the enlargement request, but "only up to and including March 30, 2009, and absent extraordinary circumstances, no further extension of time will be granted in this case." United States v. Burk, __ M.J. ___, No. 09-5001/MC (C.A.A.F. March 10, 2009) (order).

Interesting article on deserters

We've previously discussed the phenomenon of Canada deporting U.S. servicemembers who deserted and tried to remain in Canada. (See here, here, here, and here.) On NIMJ's web site, we noticed this interesting article from the Broward-Palm Beach New Times on the deserter issue. The article includes some particularly interest statistics. Note this passage:

More than 15,000 soldiers have deserted the Army since 2003, and most are thought to be living in the United States, keeping a low profile and trying to avoid a traffic ticket or anything else that would alert authorities to their presence. Army spokesmen stress that just 1 percent of all soldiers desert and that the problem is not large enough to warrant pursuing them for prosecution. Still, desertion rates have nearly doubled, rising from 2,610 in 2003 to 4,698 in 2007, and military records show a crackdown on deserters since the war in Iraq began. In 2001 and 2007, for instance, roughly 4,500 soldiers deserted each year. But while in 2001 only 29 deserters were prosecuted, in 2007 that figure was 108.

Door opens wider for government sentencing evidence

Two opinions were issued today giving the government broad latitude in its sentencing case.

CAAF issued its opinion in United States v. Stephens, __ M.J. __, No. 08-0589/AF (C.A.A.F. March 12, 2009) [DISCLAIMER: I'm the losing counsel in Stephens.] In Stephens, CAAF held that the military judge didn't err "by allowing the father of the victim to testify in sentencing about the effect the investigation and court-martial had on the victim." Id., slip op. at 2. Judge Stucky wrote the opinion of the court, which was joined by Judges Erdmann and Ryan. Judge Baker, joined by Chief Judge Effron, wrote separately and concurred in the result.

SSgt Stephens was found guilty of attempted carnal knowledge, attempted sodomy and indecent acts with a 13-year-old relative by marriage. The victim testified on the merits, but not during the sentencing hearing. During the sentencing case, after the victim's father had already testified about how the offenses affected the victim, the trial counsel asked: "How about the effect of this process, the investigation and her testifying and what not, how has that impacted her and how has it impacted you?" The defense objected, observing that the prosecutors "are asking to
penalize the Defendant for invoking his right to have a trial and the process involved with that." After a bit of colloquy, the military judge ruled: "He can go through what the effect of it since this has come about until now and she has had to testify, the impact and the effect on her and that means as she has gone through the process, just the impact, emotionally on her." The father then testified: "It has been totally devastating, what she has had to go through, what she has had to put up with; the constant retelling to different people, to different systems of the court system. I mean, to keep bringing it slamming it in her face, I mean, ya’ll just don’t have a clue what this has done to my daughter. She is nowhere near the same daughter that she was before. It has just totally changed her one hundred percent."

CAAF ruled that "[t]estimony as to the effect of the process, including the trial,
on the victim" comes within R.C.M. 1001's authorization for the trial counsel to present aggravating evidence. CAAF concluded that no constitutional violation arose from the evidence, reasoning that "there was no explicit comment by the trial counsel or the father concerning Appellant's invocation of his rights but rather, a brief reference to the effect of the entire proceeding (including, but not limited to, the trial) on Appellant's victim."

The court's analysis continued by observing that an M.R.E. 403 balancing was also required because "relevant evidence may still be excluded if its probative value is substantially outweighed by the danger of unfair prejudice." The court conducted its own 403 analysis, finding that evidence probative and unfair prejudice unlikely.

The court did, however, caution TCs "to use care in eliciting testimony that may cross the line into impermissible comment on an accused's invocation of his constitutional rights."

Judge Baker found error, but concluded that it was harmless. He reasoned, "The problem is that the question and answer . . . referenced the victim's testimony at trial. As a result, on these facts the M.R.E. 403 balancing test should have broken in Appellant's favor." But Judge Baker concluded that "the error in M.R.E. 403 balancing was harmless for much the same reason that the evidence was not probative."

Nevertheless, the majority endorsed the conclusion that aggravating evidence based on the court-martial process is permissible, throwing into doubt the dicta in ACCA's recent published decision of United States v. Fisher, 67 M.J. 617 (A. Ct. Crim. App. 2009), which we discussed here.

Opening the government's aggravating evidence door wider still is AFCCA published opinion in United States v. Rhine, __ M.J. ___, No. ACM 37004 (A.F. Ct. Crim. App. March 12, 2009). (The opinion isn't yet on AFCCA's web site, so I've posted it here.)

A1C Rhine was a male version of Glenn Close from Fatal Attraction, though without the bunnycide. He was found guilty of violating a lawful order (apparently a no-contact order; that wouldn't have stopped Alex Forrest either), two specs of willfully damaging his stalkee's cars, and one spec of stalking.

In sentencing, the TC put on evidence of numerous illegal and/or offensive acts that Rhine committed while stalking his victim. The defense objected to it as uncharged misconduct. The military judge let it in for the purpose of understanding the victim's fear arising from the stalking, but repeatedly indicated that he wouldn't punish Rhine for the substance of that misconduct. AFCCA upheld the military judge. AFCCA quoted CAAF's Hardison opinion for the proposition that "[t]here are two primary limitations on the admission of aggravation evidence. First, such evidence must be directly related to the offenses of which the accused has been found guilty" and, second, it must pass an M.R.E. 403 balancing test. Id. at 8 (quoting United States v. Hardison, 64 M.J. 279 (C.A.A.F. 2007)). Turning to the particular context of this case (i.e, the Fatal Attraction context), AFCCA continued, "When dealing with a charge of stalking and the consequent fear of the stalking victim, we will broadly construe the first element of the Hardison test regarding whether the evidence is directly related." Id. at 9. "We conclude that all the facts, circumstances, and activities between the victim and the appellant are directly related to the charged offense of stalking, and therefore, are admissible in aggravation during sentencing under R.C.M. 1001(b)(4)." Id. AFCCA also upheld the admissibility of the challenged uncharged misconduct because "the evidence demonstrates a continuing course of conduct by the appellant involving similar action and misconduct with the same victim." Id. Turning to Hardison's M.R.E. 403 balancing requirement, the court found "the probative value of the evidence far outweighs the possible prejudicial impact. The evidence was probative of the fear experienced by" the stalking victim. Id. at 9-10. "Fear is a critical element of the offense of stalking" and the military judge indicated that he would consider the evidence "solely for the issues related to fear and the offense of stalking." Id. at 10.

So there was no error, Fatal or otherwise -- not even Close.

Big news day

CAAF issued two opinions and the Air Force Court issued a published opinion today. We also have some other news to pass along. But all of that must wait until sometime after 2100.

Wuterich Continued

The always reliable North County Times has this report on the Wuterich hearing regarding CBS News excerpts of an interview with Frank Wuterich which were the subject of a hearing on Wednesday at Camp Pendleton:
There is no First Amendment protection for journalists in the military justice system and thus CBS should hand over all its material from an interview with a Marine who led his men in the slaying of 24 Iraqi civilians, a prosecutor is asserting. . . "The question is unresolved on reporter privilege and it's not for this court to decide," Gannon told the judge, Lt. Col. Jeffrey Meeks, during a court hearing Wednesday. . . . CBS asserts they don't and maintains that any off-camera statements Wuterich made to its reporter, Scott Pelley, also shed no new light.Network attorney Carl Benedetti told Meeks a wide range of federal court case law protects journalists from being compelled to disclose all of their work product. Forcing the network to give prosecutors all its work on the Wuterich story violates that protection, he said.
According to the story Meeks will rule today after reviewing the unaired portions in camera. CBS has all along asserted that the unaired portions don't contain anything relevant, which may moot the entire constitutional issue. I will let you know when a ruling comes out. If any of our readers get a copy, please email it to us. I don't personally know anyone involved in the case so I doubt they will be able to provide it to us for posting ;-)

Kreutzer cont'

Sgt Kreutzer's offenses (shooting 19 soldiers, one of whom died) were committed in 1995. He was sentenced to death in 1996. In 2004, ACCA set aside all of the findings of guilty to which Kreutzer had pleaded not guilty, including one specification of premeditated murder, and his sentence. United States v. Kreutzer, 59 M.J. 773 (A. Ct. Crim. App. 2004). The Judge Advocate General of the Army certified the case to CAAF, which affirmed in 2005. United States v. Kreutzer, 61 M.J. 293 (C.A.A.F. 2005). Yesterday, according to this report in the Fayetteville Observer, Kreutzer entered guilty pleas, including to premeditated murder, in exchange for a non-capital referral. The prosecution will proceed to try to prove some other offenses for which Kreutzer pleaded guilty to lesser-included offenses. The contested portion of his case, as well as sentencing, will be in a military judge alone proceeding.

Since the military death penalty was reinstated in 1984, there have been 15 known military death sentences. Two were set aside in the initial CA's action. Eight have been set aside on direct appeal. In three of those cases, retrials or resentencing proceedings are still in their very early stages. In the four military capital cases where the initial sentence was reversed and the case is now complete, the death sentence wasn't reinstated in any of them (Dock, Curtis, Simoy, Thomas). Assuming that nothing happens before sentencing to interfere with yesterday's pleas, Kreutzer will become the fifth former military death row inmate to have his death sentence replaced with a non-capital sentence.

Wednesday, March 11, 2009

HUGE NEWS -- Kreutzer avoids the death penalty

As reported here by the Fayetteville Observer, Sgt Kreutzer has entered pleas of guilty in a non-capital general court-martial.

Wuterich Court-Martial to Begin--Updated

While the Supremes consider SSgt Wuterich's cert. petition, see our coverage here and the petition here, apparently the show must go on--finally. The LA Times reports here that court-martial proceedings will be held today at Camp Pendleton in the case of Staff Sergent Frank Wuterich. According to informed sources, today's hearing is an Art. 39(a) session regarding the video from CBS News. We'll bring you any updates as they come in.

The LA Times report also states, "The Marine Corps is seeking to reinstate charges against one of those initially charged, Lt. Col. Jeffrey Chessani, the battalion commander." I am not sure if that refers to seeking "expedited" NMCCA review of the unlawful command influence issue or re-preferral. Anyone in the know, please email or post in the comments.

Don't Ivy League law journals fact check?

The Court-Martial Trial Practice blog provided this link to a Yale Law Journal note on gangs in the military that I made the mistake of reading today. Gustav Eyler, Note, Gangs in the Military, 118 Yale L.J. 696 (2009).

As I've often disclosed in the past, I was one of the appellate defense counsel on the Quintanilla case, as were a couple of the other contributors to this blog. The military gang note discusses the Quintanilla case, making erroneous factual statements unsupported by the cited authority. The note includes the following passage:

The presence of gang members in the armed forces poses worrisome problems. In the military, gang members threaten unit order and compromise base security. A shocking example of this is found in the facts of United States v. Quintanilla, in which a Marine sergeant and self-proclaimed gang member shot his commanding officer and executive officer -- both lieutenant colonels -- and threatened to continue killing officers until his fellow gang members were released from confinement.
Id. at 704.

The Quintanilla case may tell us a lot about the dangers posed by untreated mentally ill Marines who self-medicate with excessive amounts of alcohol, but it doesn't tell us anything about military gang members for the simple reason that Sgt Quintanilla wasn't in a gang.

In support of its factual assertions about Quintanilla, the note cites four pages from CAAF's decision in the case (63 M.J. at 30-33) and two pages from NMCCA's decision in the case (60 M.J. at 854-55). None of these pages supports the assertion that Quintanilla was a "self-proclaimed gang member." None supports the assertion that he was a gang member at all. None provides any indication that he threatened to continue killing officers until his fellow gang members were released from confinement. I'm at a loss to understand how those statements could be printed in the Yale Law Journal without any supporting citation that verifies those factual claims.

The closest -- and this isn't close -- that the supporting footnotes come to the text's factual assertions is this quotation from NMCCA's opinion:

The appellant talked about why he shot the CO and XO, complaining that he wasn't treated well in the squadron and that he did it for his "brown brothers," or words to that effect. At one point, the appellant stood up, pulled down his coveralls, took off his undershirt, and displayed the tattoos that covered his upper body. One of the large tattoos read "Sureno," which the Government argued was a reference to Southern California gangs.
118 Yale L.J. at 704 n.45 (quoting 60 M.J. at 855).

While the author calls this "[a] particularly relevant section," absent from it are any assertions that Quintanilla proclaimed himself to be in a gang, that he was actually in a gang, or that he threatened to continue killing officers until his fellow gang members were released from confinement.

I don't expect the note's author to read the record of trial, but if he did, he would have been aware that even the government's own gang expert--who didn't mind embellishing, like when he falsely claimed to be an associate professor at U.C. Berkeley's Boalt Hall School of Law, R. at 244--repeatedly testified that there was no evidence that Quintanilla was or had ever been in a gang. See R. at 693, 694, 700, 703. As for that tattoo, if I had a large curly W tattooed on my back (and I'm not saying I don't), that wouldn't make me a member of the Washington Nationals. A defense gang expert testified that Quintanilla's tattoos were actually inconsistent with gang membership because his combination of tattoos might get him killed by a gang. R. at 730.

Again, I don't expect the author to know any of this material from the record. What I do expect the author to do is limit factual assertions to those that can be verified and to provide supporting citations. And that the author plainly failed to do. I also expect another student editor during the review process to compare the factual assertions in the note to the supporting citations and determine whether the factual statements are supported by the citations. That process appears to have broken down as well.

Tuesday, March 10, 2009

Why the military justice system probably does a better job on average than civilian criminal justice systems

I've previously offered my anecdotal argument for why the military justice system handles the average case better than civilian criminal justice systems do:
[F]or 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.
Today's WaPo includes this op-ed by former Vice President Mondale making a similar point about Gideon's promise is unfulfilled due to unreasonably low income level cut-offs for appointed counsel. Vice President Mondale cites this report from the Brennan Center for Justice analyzing this problem.

In the military, however, only an accused who really, really wants to go pro se appears without a lawyer. As a direct result, the military justice system is fairer to the average accused than are many civilian justice systems. (Note, however, that I also believe that much like the Buffalo Bills in the 1990s, the military justice system doesn't handle the big ones well.)