Wednesday, May 27, 2009

ACCA holds an accused's statements dissing the Army are admissible aggravation evidence in Article 86 case

ACCA issued a published opinion yesterday, holding that the military judge correctly overruled a defense objection to the admissibility during the government's case in aggravation of the accused's statements expressing disdain for the Army. United States v. Scheuerman, __ M.J. ___, No. ARMY 20080304 (A. Ct. Crim App. May 26, 2009). Judge Sullivan wrote for the majority.

ACCA reasoned: "Rule for Court-Martial 1001(b)(4) has a 'rather broad ambit.' United States v. Stephens, M.J. , slip op. at 4 (C.A.A.F. 12 March 2009). Appellant's poor attitude toward military service, which, in part, motivated his multiple AWOL periods, is a circumstance surrounding his offenses." Id., slip op. at 4. Characterizing the Army as the victim of the accused's Article 86 offenses, ACCA maintained that "[e]ssentially, appellant repeatedly made derogatory remarks about his victim and now complains those remarks should not be considered in his sentencing." Id., slip op. at 5.


Publius said...

Looks like we have a split in the CCAs. Last Wednesday, CAAFlog refers to AFCCA case that construed R.C.M. 1001(b)(4) narrowly.

Anonymous said...

Racist speech on your internet profile: A-OK.

Complaining about the backdoor draft on your internet profile: sunk.

Oh what a world.

Anonymous said...

So making a true statement (with the exception of the sucking statement, since the army can't do that), including the fact that the army was indeed screwing him by back door drafting him for an addtional 4 months of combat evil true speech which must be punished.

Very interesting.

The truth is a crime. It is an honor to be allowed to serve additional involuntary time in Bush's war, and any who state different must be punished.

Anonymous said...

Does anyone "in the know" know whether or not any First Amendment issues were litigated?


Socrates said...

There is something artificial about this ruling. It is a textbook rendering of the law, untempered by human experience. But we purportedly have experienced O-5s and O-6s on our military criminal courts as a counterweight to these kind of robotic outcomes.

Putting aside the contrived and Orwellian argument that the "Army is a victim" of this UA - technically true, but almost too dumb to utter - we have the fact that Uncle Sam is not the Army (Unless, of course, the Army is Uncle Sam's cousin, the ever unpopular curmudgeon "Uncle Fucking Cock-Sucking Sam." I don't like him, either.)

"Venting" is a completely normal and healthy human, as well as military, attribute. It has occured at every military unit I have ever served at. I have done it myself - and great colleagues and leaders I have known have done so, too.

By the way, what if the UA soldier had said: "The Army is the greatest institution in the history of mankind. It is fighting a just war in Iraq to save civilization. But I am not going." Isn't that worse?

I think that speech is a dangerous well to draw from to assess the impact of a crime. One test to determine if the "aggravation" is fairly being used is to reverse the speech in question and ask if an inverted statement would be "mitigation." I don't think so. (Think of the terrorist trials and the political motivations that the actors try to bring in. IRRELEVANT cries the judge, shutting down the explanation.)

Overall, this was superficial analysis by the court. There is a thread poking out of this cloth, and if a good judge pulls it, the uniform will unravel.

John O'Connor said...

Good food for thought, Socrates.

I will agree that the law of evidence on sentencing is hopelessly dorked up. The whole concept of "rehabilitative potential" has been so screwed up by the appellate courts as to be both sterile and worthless. In essence, everyone has to speak in euphemisms, where the sentencing authority (assuming members sentencing) are the only ones who don't get the code words.

I don't necessarily agree with your comment that a useful way to judge relevance of evidence is to assess whether the opposition statement would be relevant in the other direction.

Take evidence of whether the command leadership wants (or would be willing) to take back an accused after he has served his time in confinement. If I were a member, and the evidence came from someone with experience, that would be incredibly powerful testimony (and relevant in my mind) on the issue of whether I ought to award a punitive discharge. Would evidence the otehr direction (a sergeant or captain saying that they don't want the accused back) be relevant? Certainly not as relevant, and the courts have held that this evidence is not relevant at all because the question isn't whether to separate, but whether to punitively separate.

Maybe the main reason evidence of lack of a future in the service is not allowed is that it would have too great an impact. I can imagine the CO walking in and, having appointed the members, announcing he doesn't want the accused back.

Perhaps the best solution would be to switch to judge sentencing in non-capital cases and to either go non-adversarial with sentencing (the main negative effect of which would end JAGs' ability to say on their resumes they litigated 200 "contested" courts-martial), or allow adversarial sentencing but before a judge who isn't beholden to the command.

Socrates said...

JO'C, your observation on speaking in euphemisms is interesting.

In terms of the "test" I propose, I guess I meant it more as a thought experiment to tease-out relevance than a literal formula to determine admission.

I am advocating a position that I think is fairly conservative: "motivation is a suspect category of aggravation."

The conservative arguments against "hate-crime" are well-articulated. Its a crime to punch someone in the face. It should not be a crime + (plus) to punch someone in the face AND call them a name.

The conservative genesis of this argument - a suspicion of "mind-reading" - works in the social sphere where liberal courts tend to look for a legislature's "motives" to determine whether legislation is permissible or not. For example, church and state issues or abortion. Instead of just looking at the plain words of the statute (the act, by my analogy), the court looks to the "real" meaning behind the legislation (the words, by my analogy), and then determines if the legislation is acceptable.

Case 1: "What? You actually meant to honor GOD by putting up the 10 Commandments - No, that's illegal."

Case 2: "Oh, you just meant to be historical by putting up the 10 Commandments - well, that's legal."

In both cases, the 10 commandments are up on the public building. Just tell me whether that is legal or not based on the ACT. Don't get into mind-reading and the motivation game.

Similarly, in both cases, good words; bad words; soldier UA. Judge the crime. This soldier just said what every other soldier who goes UA is THINKING. He's just being honest.

So I think we are back to your theme of silly euphemisms.

John O'Connor said...

Good post, Socrates. One quibble.

You said: "I am advocating a position that I think is fairly conservative: 'motivation is a suspect category of aggravation.'" And then you gave the example of hate crimes legislation.

I don't think the conservative argument against hate crimes legislation is that "motivation is a suspect category of aggravation" -- I think the argument is the opposite. That motivation IS an aggravating fact, and that the regular old assult and murder laws are adequate because they criminalize the conduct and can take into account the motivation as a matter in aggravation. At least that's how I understand the argument.

Socrates said...

That's interesting. We may have a different reading of the conservative argument. My take was that if I murder you, it doesn't matter whether I hate you because you are Irish or whether you looked at me funny. The crime is that I took your life - the impact - not what my reasons were. Admittedly, my reading of the conservative argument is the "simplistic" one.

Your interpretation, that present sentencing laws ALREADY can accomodate such motivations, is more nuanced, and frankly, I have not heard this point made in htis way, at least not very vocally.

But is your point true? If I say "I hate the Irish!" as I shoot you, A) would I, and B) should I get more punishment than if I say nothing to you as I pull the trigger.

John O'Connor said...

I think that's up to the fact finder. If I were the sentencing authority, you'd get more time.

Anonymous said...


All I know is that you'd get more for doing in J O'C than if you did in Jacques Oconeaux.