Friday, April 24, 2009

New published sentencing argument decision from CGCCA

The Coast Guard Court issued a published opinion today. United States v. McDonald, __ M.J. ___, No. 1294 (C.G. Ct. Crim. App. Apr. 24, 2009). The central issue in the case is whether the TC's sentencing argument included improper comments that rise to the level of plain error. No, ruled CGCCA.

The court held that it was improper for the TC to argue, "His drug use alone and the impact that it has on our service and the unit of CUTTER SHERMAN as a law enforcement cutter deserves a bad conduct discharge." Because the drug use didn't produce an adverse impact on the cutter's law enforcement mission, the TC's argument "improperly links Appellant’s status as a boarding team member to his marijuana offense." But while the argument was improper, it was only a small part of the TC's argument and didn't constitute plain error, especially in this judge alone case.


Anonymous said...

TCs need to chill out a little in closing arguments on drugs. You can make your point that it's not appropriate for military service without sounding like a total d*bag who was born yesterday and thinks pot smokers are the worst thing you've ever seen.

John O'Connor said...

O'Connor's Law: Don't say anything in a guilty plea case that might cause an appellate issue.

The judge or members will either give the boomer or they won't for a single spec pop, and you preaching that drugs are bad isn't going to move the needle. Your sentencing authority is either a panty-waist, or it's not.

Anonymous said...

Ditto, JO'C.

Anonymous said...

Speaking of d-bags, I'd say a prosecutor who let's his CA send a single drug use to court-martial fits the bill.

Dwight Sullivan said...

I generally try to avoid debates with anonymous commentators, but I guess I'm feeling in a particularly ornery mood tonight. I couldn't disagree more with the previous poster.

First off, a prosecutor who LETS the CA take a particular action? The Marine Corps CAs with whom I dealt weren't in the habit of letting anyone, company grade TCs included, dictate their approach to discipline. Nor should they be.

Now onto the merits of court-martialing servicemembers for drug use.

Congress has provided that the maximum punishment for using marijuana is a DD and 2 years of confinement and the maximum punishment for wrongfully using most other drugs is a DD and 5 years. It's obvious that Congress takes drug offenses by military members seriously. And it should. In addition to the problem of military members using drugs is the fact that much (and probably most) drug use financially supports criminal activity that directly threatens the security of other countries in our hemisphere and funds considerable violent criminal activity in the United States.

On top of that, there isn't a single member of the U.S. military who doesn't know that drug use is illegal, that the military actively seeks to root out drug use, and that the military will harshly punish drug use. So I have a very difficult time feeling sorry for any member of the military who gets court-martialed for using drugs. Isn't every member of the military on fair notice that a court-martial is a likely consequence of drug use? If a member of the military doesn't want to get court-martialed for drug use, he or she shouldn't use drugs.

Finally, if not a court-martial for drug use, then what? Surely we shouldn't retain drug users. Should be admin discharge them? If so, then we may even encourage drug use by those who want to get out of their commitment to the military without facing the prospect of a court-martial and confinement time, as well as a punitive discharge.

To deter drug use, to stigmatize military members who defy both federal law and the military culture by using drugs, and to protect the good order and discipline of the U.S. military, court-martialing servicemembers where evidence indicates that they used illegal drugs is a sound policy.

Socrates said...

This is a good question: "Isn't every member of the military on fair notice that a court-martial is a likely consequence of drug use?"

Maybe not. Other posters can provide their observations, but it seems to me that in the lower enlisted ranks, the widespread myth almost encourages drug use as a sure-fire way to "get out" of the military, with lots of Administrative Separation boards. (But, I can't quibble with the concept of "fair notice" as you probably meant it: in a legal context.)

Your argument about drugs and national security, while valid, has too much of an attenuated impact to persuade me that it should have any bearing in an individual case. Don't give prosecutors any bad ideas! Now someone may use this national security argument in his/her closing argument. Lets defer to O'Connor's law here.

While the national security argument has some merit, it eerily smacks of the al-Qaeda charge that all Americans are legitimage targets because we financially support the war effort against Muslims. Both arguments are valid in from a certain perspective. Guilt, both moral and legal, should be based on pretty direct and knowable consequences of the offense. Otherwise, we can start court-martialing everybody for environmental destruction under Article 134.

Dwight Sullivan said...

So-Crates, I'm not suggesting that a TC can or should argue in any given case that an accused's drug use subsidizes lawlessness in Mexico, Columbia, or anywhere else (though it is often the case that such drug use does exactly that). A TC would be foolish to make such an argument to the sentencing authority and an MJ would be foolish to let him/her. But from a macro sense of how the military should handle drug offenses, it is certainly a relevant concern. And if I were a CA, it would be one of many factors that would lead me to adopt a strict policy of referring any credible drug use charge--even a one-spec pop for marijuana use--to a court-martial.

Of course, the more drug use cases that are court-martialed, the less any servicemember will believe that drug use is an easy way to get out of the military -- which further undercuts Anon 2057's douchebaggery argument.

[BTW, a few years ago, as part of my reserve duty, I served as a recorder for an admin discharge board for cocaine use. I unsuccessfully advocated referringthe caes to a court-martial instead. So COs aren't in the habit of letting lieutenant colonel judge advocates -- as I then was -- dictate their discipline policies either, even when the lt col is arguing for harsher treatment.]

John O'Connor said...

At least in the Marine Corps, I think early on in a Marine's career he is on fair notice of every kind that a drug pop is highly likely to lead to a court-martial.

In my pre-judge advocate days, when I was squadron adjutant we used to read the results of trial at formation every Monday morning whenever we had a result to report. When I was a TC prosecuting for infantry regiments, usually every battalion would have at least one drug pop pending court-martial at any given time. So even a junior Marine would see that drug pops got court-martialed.

Building on Dwight's last comment, when I was a TC I would strongly advise my CAs not to take a drug pop straight to an admin board, or straight to a summary or NJP either. I would tell them that if they would be satisfied with something less than a special, to start at a special and then deal it back. That way you would avoid a contested summary court-martial (which is almost always a bad idea for any type of offense) and/or get a board waiver. Admin boards are like the Wild West, and are something to be avoided by a CA who wants the Marine gone with an OTH.

But, then, I've always been pretty much known as a d-bag.

Cossio said...

Max-out a NJP w/ a board can be less time consuming and even more effective then rolling the dice in a court-martial and having the case lag on for 2-3 years with the possibility of it getting kicked backed.

Can't tell you how many Vietnam era vets, many Marines (including my Uncle) had stories of drug use...My supervisor told me a story of using pot while on leave (as an e-3) and somehow beating the urinalysis....He's now a First Sergeant now for the Air Force...While not advocating the use of drugs at all (never did them in my life, never will), the punishments that are advocated on this blog are draconian.

How many former Officers, Chiefs, CA's and Group Commanders have had their children and grand children face punishment for drug use and then fly to their base to have a "talk" with their commander.....I know a few.

Bottom line, a court-martial for drug use, like a Maxed out NJP for DUI, will have a de minimis affect on preventing these drug abuse crimes. These people were going to use drugs regardless of command prerogative. That is not to say they should not be punished, but rather their punishment must be rational.

Dwight Sullivan said...

A comparison of the pre-urinalysis military and the military since the urinalysis program was instituted refutes the notion that drug use can't be deterred. The fact that many military members used drugs during the Vietnam era is an argument FOR court-martialing drug use, not against it.

One important function of any criminal justice system is to convey society's attitudes toward unwanted behaviors. Criminalizing drug use in the military and responding to drug use through invocation of criminal sanctions sends an important message about military society -- anyone who wants to use drugs shouldn't join the military. It also sends an important message to those in the military.

The fact that many cases stay on appellate review too long isn't a reason not to use the military justice system when it should be used. I support several different reforms that would have the effect of reducing time spent by servicemembers on appellate leave. But I would never support steps that would interfere with military discipline in order to reduce appellate backlogs. It isn't commanding officers' job to help the military justice system run efficiently. Rather, it is judge advocates' role to operate an efficient and fair military justice system to handle the cases commanding officers refer to it.

And regardless of whether a BCD is really more stigmatizing than an OTH, I would be shocked if the deterrent effect of a punitive discharge PLUS CONFINEMENT isn't far greater than the threat of an OTH with some period of restriction.

John O'Connor said...

And one thing that trial counsel can do is try to educate their CAs about options that balance needs for discipline and deterrence with the needs of the MilJus system, such as dealing back to summaries with a board waiver, or SpCM deals that suspend most confinement if there's a BCD.

Most commanders, if educated by a lawyer they trust (and may instinctively distrust their prosecutors) can be convinced of the benefits of efficient treatment of drug pops.

They seem much more amenable to that than going light on, say, thieves.

Cossio said...

"A comparison of the pre-urinalysis military and the military since the urinalysis program was instituted refutes the notion that drug use can't be deterred."My argument was not on the effectiveness of pre-urinalysis as a deterrent to drug use. It's common sense that it is.

Rather, my argument was let's say an article 15 which can get you 30 days Correctional Custody and a bust in rank with extra-duty compare to a court martial where from what I have seen get you a few weeks and maybe a discharge (that is in the Army, in the Air Force you do serious jail time)

Thus, the test would be is to see if court-martials are more effective than NJP in deterring drug cases.Although it is comparing apples to bananas we can say this:

1.) Out of all the Services the Air Force punishes drug use more, with a court-martial almost every time, and a true “zero-tolerance” stance on drug offenders. This I know to be true.

2.) Is the Air Force's Drug Pop numbers any lower than the other services per member? And if so can we attribute these numbers to harsher punishments or better (higher standards) of recruiting?


Let me share a story with you:

On my first deployment to J-Bad I had "garbage detail". Now in the Air Force we all took turns. A SSgt. Did it for two weeks, another, and me (I was an e-3 at the time). Army and Marines also were required to do the same detail with us, pickup trash around base and dump it in a landfill and watch the locals pick out expired OJ, old Milk, and dirty used sneakers for their consumption.

Only in the Army/Marines they put their low ranking trouble makers on the detail, whilst in our group we all took equal turns regardless of rank.

One soldier had a two week article 15 for Cannabis he smuggled in his boot. I asked, "They let you stay in the Army?", he stated that in fact he was probably going to promoted after that. He asked what would happened if he did that in the Air Force - I told him he'd be sent back home for a court-martial or get kicked out.

I relayed this story to a friend of mine who is a Warrant Officer (pilot) and was told that they had people that were purposely doing drugs to get out but the command was aware and kept them in, also they didn't want to throw away the training, time, and money spent on training these people.

Finally I was confined with an Airman doing cocaine and sentenced to nine months. The individual who did cocaine with was in the Army, they both got caught 6 months after the fact (girlfriend ratted them out). The Army didn't prosecute citing the length of time between the alleged crimes.

It seems to me that:

a) People who commit crimes nine out of ten times were going to do so regardless if they were aware of the consequences. Most drug abusers I've talked to were drug users PRIOR to joining the service.

b) Unit needs and service culture dictate how each service deals with their soldier's misconduct which leads to:

c) There is a great disparity to what is acceptable in one service and not another or what is prosecutable in the first place.

Court-Martial’s for drug use, while an effective deterrent as Hanging for stealing a man’s horse, or cutting a man’s hand, does not mean NJP cannot be as effective.

koop said...

Not everyone that tests positive are really guilty of drugs. I had a friend test positive for cocaine and marijuana at low concentrations. After every UA he always went right after and paid for his own UA and had it confirmed through GC/MS which was negative. Only problem was chain of custody.