Tuesday, June 30, 2009

ACCA rejects challenge to providence of drug possession plea

An accused intends to distribute all of his marijuana. He inadvertently leaves a baggie in his pocket after he has distributed the rest. Does his statement during the providence inquiry that he was unaware of his continued possession of the baggie's content invalidate his plea? No, rules ACCA in a published opinion. United States v. Gonzalez, __ M.J. ___, No. ARMY 20080111 (A. Ct. Crim. App. June 26, 2009). Chief Judge Beck wrote for a unanimous panel.

ACCA explains:

A person who knowingly possesses a substance and thereafter misplaces or forgets about it or through inadvertence fails to distribute all of what he intended is nonetheless guilty of knowing possession when that substance is thereafter found within the person's control. Subsequent forgetfulness or negligence in possession does not negate otherwise-knowing possession of a controlled substance under Article 112a.
Id., slip op. at 4.

ACCA recommends a change to the Benchbook to reflect that statement of the law: "We specifically disapprove any implication to the contrary in Dept of the Army Pam. 27-9, Legal Services -- Military Judges' Benchbook, paragraph 3-37-1, note 3 and encourage the drafters to revise the note." Id., slip op. at 4. n.4.

To me, the most surprising thing about the opinion is that "Elisa" is a guy's name.

Recent "Military" Justice (MEJA) - An Odd Twist on an "Old" Law

[UPDATE: I have now seen the full Indictment and none of the Counts require MEJA, they are eithery bribery or conspiracy to commit bribery with one exception (mail fraud, and I admit I have not done the research on the extra-territorrial application of the mail fraud based on the facts of the case). Bribery has its own extra-territorial component. But, as an academic matter I will leave the discussion below.]

For those that follow prosecutions of former or current servicmembers under MEJA, you will find this DOJ press release very interesting. DOJ's summary of the case said:

[An Army major and an Air Force master sergeant] pleaded guilty to various bribery, fraud and conspiracy charges relating to Department of Defense (DOD) contracts in Afghanistan, the Department of Justice announced today. [An Army sergeant] pleaded guilty to receiving stolen property, which was obtained through the bribery conspiracy. In addition, four DOD contractors and four affiliated contracting companies were indicted for their roles in paying bribes to the military officials and otherwise defrauding the United States. The pleas of the military officials were filed today in U.S. District Court in Chicago. A superseding indictment of the contractors and companies was filed yesterday in U.S. District Court in Chicago.
As the case shows, military members can be prosecuted in federal district court when they conspire with civilians. See MEJA, 18 USC 3261(d)(2) (permitting MEJA prosecutions when members commit "the offense with one or more other defendants, at least one of whom is not subject to" the UCMJ).

In these procurement fraud cases where all the contractors are DOD contractors, who is subject to the UCMJ for purposes of MEJA these days? I'd say that at a minimum, all DOD contractor employees working for contractors with contracts in Afghanistan are technically "subject to the UCMJ." Who in these procurement fraud cases isn't subject to the UCMJ? In this case it could have been the company had DOJ needed MEJA. Will this odd twist (a) force DOJ to avoid MEJA in charging or (b) force DOJ to go after a company as a defendant to ensure jurisdiction in other cases that require MEJA? I don't know that such a metric has been borne out yet, though you would think in 3 years it would have. I'll get back to everyone with some stats later this week.

Second thought--not be to overly conspiratorial, but can a DOD contractor can be prosecuted while they are still employed in support of a battlefield contract given the language of MEJA? MEJA (a statute) trumps the SecDef Memo on right of first refusal for UCMJ jurisdiction, so that's not an issue. Also, the lead in portion of subsection (d) discusses "member of the Armed Forces subject to . . .," whereas the exception in (d)(2) omits the "member of the Armed Forces" language. Also, the term member of the Armed Forces is used elsewhere to distinguish members from civilian DOD employees and contractors. So I may have resolved my own question. But, here is the full text of 18 USC 3261(d), you decide:

No prosecution may be commenced against a member of the Armed Forces subject to chapter 47 of title 10 (the Uniform Code of Military Justice) under this section unless—
(1) such member ceases to be subject to such chapter; or (2) an indictment or information charges that the member committed the offense with one or more other defendants, at least one of whom is not subject to such chapter.

Monday, June 29, 2009

Another Cox Commission preview

This article from Tuesday's Stars and Stripes reports on more possible recommendations by the Cox Commission.

Sunday, June 28, 2009

Some thoughts about the CCAs' oral argument practice

It turns out that the data set isn't sufficiently rich to do meaningful inter-CCA analysis of oral argument practice. Disturbingly, one of the best sources of information about the CCAs' oral argument practice is our TWIMJ. But we've only been running that feature in a systematic way since 23 November 2008. Once we've been tracking the CCAs' oral argument practice through TWIMJ for a longer time, we may be able to make some meaningful statistical observations. Future analysis will also be aided by ACCA's move in late February 2009 to include summary dispositions on its web site. Analysis would be further aided if NMCCA would indicate on its opinions when the case was orally argued -- as ACCA seems to do and as AFCCA usually, but not invariably, does. And we'd be nearing military justice wonk heaven if NMCCA would follow the practice of every other CCA and every Article III court and make all of its opinions available online.

In the meantime, the scant available data suggest some questions even if they don't reveal answers. Are there differences in the way CCAs respond to oral argument requests from retained counsel versus oral argument requests from military or civil service counsel? We've noted that AFCCA decided two cases without ruling on oral argument requests this year -- one from military appellate defense counsel and one from a DOD-employed civilian counsel (me). On the other hand, three of the seven oral arguments AFCCA has heard this term are in cases where the request came from retained civilian counsel.

Perhaps it's also useful to ask what percentage of argued cases result in published opinions and what percentage of published cases were orally argued. Interestingly, in three of the four cases in which NMCCA has heard oral argument this term and has issued an opinion, the opinion was published. For AFCCA, that statistic is two out of six. With the limitations on the existing data set, it isn't apparent what the figure is going the other way -- i.e., how many of the 22 published CCA opinions issued thus far in calendar year 2009 arose from cases that were orally argued. (I know that seven were, but it's possible that the number is higher and perhaps even much higher.)

It also appears that a large percentage of cases in which the United States is seeking relief (i.e., Article 62 appeals and petitions for extraordinary relief in which the government is the petitioner) are orally argued. However, in one Article 62 appeal decided by the Air Force Court this year, the court denied a motion for oral argument before ultimately ruling for the government. (That means that AFCCA has denied at least three requests for oral argument this year while hearing a total of seven oral arguments.)

What is probably the most interesting statistic isn't available from the available data and won't be available even as that data set fills out over time: in what percentage of cases do the various CCAs deny requests for oral argument and are there any statistically significant factors that correlate with such denied requests?

Looking for apparent correlations between oral argument and outcome will have to await the development of a much larger data set.

In the meantime, can anyone provide us with anecdotal evidence of why ACCA will hear almost three times as many oral arguments during the first half of this year compared to NMCCA, even though those two courts' dockets are roughly the same size? Here's an interesting statistic -- NMCCA has heard oral argument in 2009 in just three Article 66 appeals. (The other two cases in which it's heard oral argument were Article 62 appeals.) Has it denied requests for oral argument in Article 66 appeals? Or are counsel almost never asking? Another interesting stat in thinking about the difference between ACCA's practice and NMCCA's practice: even though the number of cases that the two courts received for docketing last fiscal year are comparable (ACCA = 867; NMCCA = 852), the percentage of the appellate docket devoted to SPECIAL courts-martial is almost twice as great for NMCCA (76%) as for ACCA (39%). (For AFCCA, the incoming cases were split almost down the middle -- 159 GCMs and 156 SPCMs.) Does the higher percentage of GCMs on ACCA's docket help to explain the difference? Perhaps. Interestingly, of the five cases orally argued at NMCCA this year, all were GCMs. Of the seven cases orally argued at AFCCA this year, five were GCMs. Obviously it would also be useful to know the breakdown of contested cases versus guilty pleas on the Big Three CCAs' dockets.

So lots of questions, no answers.

This week in military justice

This week at the Supremes: The Supremes are done with their military justice work for the term. The fate of the three pending military cert petitions -- Wuterich v. United States, No. 08-1133; Rodriguez v. United States, No. 08-1465; and Stephens v. United States, No. 08-1514 -- will probably be decided at the 29 September 2009 conference and certainly not before then. [Familiar disclaimer: I'm counsel of record for the petitioner in both Wuterich and Stephens.)

This week at CAAF: CAAF is done with oral arguments for the term.


Saturday, June 27, 2009

CCAs' oral argument practice [CORRECTED]

When June ends, marking the calendar year's halfway point, ACCA will have heard 14 oral arguments in 2009. (This post originally counted 13 ACCA oral arguments. I had missed United States v. Gross, No. MISC ARMY 20081049.) AFCCA will have heard seven. NMCCA will have heard only five. And CGCCA will have heard only one.

Put CGCCA to the side -- it's sui generis. What explains the great disparity between the number of oral arguments heard by ACCA and those heard by the remaining two CCAs?

I know of at least one case this year in which AFCCA issued an opinion despite a pending oral argument request, thus effectively denying the request. Are AFCCA and/or NMCCA denying a large number of oral argument requests? Or are Army counsel asking for argument more often? Of the argued Army cases, in what percentage did the defense seek oral argument, in what percentage did the government seek oral argument, and in what percentage did the court sua sponte order oral argument?

Friday, June 26, 2009

CAAF opinion alert

CAAF has released its opinion in United States v. Chatfield, __ M.J. __, No. 08-0615/NA (C.A.A.F. June 26, 2009). The opinion is available here.

Audio galore

CAAF has posted audio of Wednesday's argument in United States v. Ashby, No. 08-0770/MC, here and has posted audio of Wednesday's argument in United States v. Schweitzer, No. 08-0746/MC, here.

NMCCA has posted audio of Thursday's uncommonly interesting en banc oral argument in United States v. Wuterich here. [Familiar disclaimer: I'm one of appellee's counsel in Wuterich, but we didn't participate in the oral argument. The argument involved government counsel and counsel for CBS.]

BREAKING NEWS: Government moves for recon, recon en banc, and oral argument in U.S. v. Nerad

We previously discussed AFCCA's holding in United States v. Nerad, __ M.J. ___, No. ACM 36994 (A.F. Ct. Crim. App. May 29, 2009), that it has the authority and discretion to invalidate a finding of guilty that was legally and factually sufficient. The Air Force Government Trial and Appellate Counsel Division today filed motions with AFCCA asking the court to reconsider that opinion, asking for reconsideration en banc, and asking for oral argument.

We're putting in a FOIA request for JAJG's filings. We'll post them when we get them.

Thursday, June 25, 2009

Melendez-Diaz: Bad News For Armed Forces Drug labs

Today's 5-4 application of Crawford v. Washington is another shot of bad news for already embattled armed forces drug screening labs. See SCOTUSBlog coverage here and opinion here.

I think CAAF will need to re-look at the rule in United States v. Magyari, 63 M.J. 123, 125 (C.A.A.F. 2006). Here is how CAAF distinguished Magyari (admissible drug lab report on urine testing for drugs) from United States v. Harcrow, 66 M.J. 154 (C.A.A.F. 2008) (inadmissbile lab report on testing of drugs),
Our reasoning in Magyari that “[b]ecause the lab technicians were merely cataloging the results of routine tests, the technicians could not reasonably expect their data entries would ‘bear testimony’ against [a]ppellant at his court-martial” does not apply here.
While you could argue that CAAF's decision in Harcrow (with nearly identical facts to Melendez-Diaz) would make the Magyari facts fit within Melendez-Diaz, this passage from Melendez-Diaz was a shot across the bow (or possible up it) of Magyari and similar cases:

Respondent claims that there is a difference, for Confrontation Clause purposes, between testimony recounting historical events, which is "prone to distortion or manipulation," and the testimony at issue here, which is the "resul[t] of neutral, scientific testing." . . . Relatedly, respondent and the dissent argue that confrontation of forensic analysts would be of little value because "one would not reasonably expect a laboratory professional . . . to feel quite differently about the resultsof his scientific test by having to look at the defendant." . . . This argument is little more than an invitation to returnto our overruled decision in Roberts . . . which held that evidence with "particularized guarantees of trustworthiness" was admissible notwithstanding the Confrontation Clause.

We'll see what happens, though the harmless error analysis in Harcrow is interesting in light of SCOTUS not addressing the issue.

Rodney Dangerfield note: Justice Kennedy has caught on to the existence of the military justice system, see Dissent at 22, but apparently Justice Scalia has not--no cite to Harcrow anywhere (though in light of the Magyari precedent discussed infra., the omission may well have been intentional).

Wednesday, June 24, 2009

[WARNING: Non-military justice post] SCOTUS October Term, 2008

I've been enjoying immensely Slate's Supreme Court Breakfast Table discussion by Walter Dellinger, Linda Greenhouse, and Dahlia Lithwick.

Navy announces new JAG flag nominations

Navy Rear Adm. James W. Houck has been nominated for appointment to the rank of vice admiral and assignment as judge advocate general of the Navy, Washington, D.C. Houck is currently serving as deputy judge advocate general of the Navy/commander, Naval Legal Service Command, Washington, D.C.

Navy Captain Nanette M. Derenzi has been nominated for appointment as deputy judge advocate general of the Navy and appointment to the rank of rear admiral. Derenzi is currently serving as staff judge advocate, U.S. Southern Command, Miami, Fla.
I've known CAPT DeRenzi for about two decades and couldn't be more thrilled. This is great for her, but even better for the Navy JAG Corps.

CAAF halts appellate proceedings in Akbar

CAAF yesterday ordered ACCA's proceedings in the capital case of United States v. Akbar stayed as CAAF considers a petition for extraordinary relief. See Akbar v. Army Court of Criminal Appeals, __ M.J. ___, No. 09-8026/AR (C.A.A.F. June 23, 2009) (order); Akbar v. United States, __ M.J. ___, No. 09-8025/AR (C.A.A.F. June 23, 2009) (order). We've posted CAAF's orders here. The underlying issue on the petition for extraordinary relief deals with whether the United States and ACCA erred in denying litigation resources to Akbar's appellate defense counsel. The government was ordered to show cause by 6 July why CAAF shouldn't order the requested relief.

Tuesday, June 23, 2009

Cox Commission sneak peek

According to this report in Wednesday's Stars and Stripes, the Cox Commission will recommend a UCMJ amendment to criminalize animal cruelty. Kent Harris, Panel suggests adding animal cruelty to UCMJ, Stars & Stripes, June 24, 2009. (Obviously the article gets some things wrong, like appearing to confuse the Cox Commission with NIMJ. The article also muddles the distinction between the UCMJ and presidentially enumerated Article 134 offenses, meaning that its suggestion that the Cox Commission will recommend a UCMJ amendment as the vehicle for prohibiting animal cruelty may be inaccurate.)

NMCCA issues unpublished opinion in Moreno

NMCCA today issued a lengthy unpublished opinion affirming Cpl Moreno's conviction and dishonorable discharge (the max authorized sentence under CAAF's opinion) on remand. United States v. Moreno, No. NMCCA 200100715 (N-M. Ct. Crim. App. June 23, 2009). We've posted the opinion here.

NMCCA's Ross opinion

Yesterday, we discussed CAAF's grant of a Walters/Seider issue in United States v. Ross. We have now received a copy of NMCCA's opinion in the case, which we've posted here. United States v. Ross, No. NMCCA 200800313 (N-M. Ct. Crim. App. Dec. 4, 2008) (per curiam).

This case effectively refutes some sniping in the comments section suggesting that the CCAs haven't been sufficiently attentive to Walters/Seider issues. This case was originally submitted on the merits to NMCCA, which specified the Walters/Seider issue.

New CAAF grant

CAAF granted review today on the following issue: "Whether the military judge abused her discretion in denying the defense motion to suppress all evidence from Appellant's home." United States v. Cowgill, __ M.J. ___, No. 09-0376/AF (C.A.A.F. June 23, 2009). AFCCA's unpublished decision in the case is available here. United States v. Cowgill, No. S31404 (A.F. Ct. Crim. App. June 23 2009). The AFCCA panel had split 2-1 on the validity of the search of SSgt Cowgill's home. Judge Helget's opinion for the court, joined by Judge Brand, concluded that the military judge didn't abuse her discretion by concluding that the civilian magistrate had a sufficient basis to issue the search warrant. The majority also concluded that even if there was inadequate probable cause, the fruits of the search would still be admissible under the Fourth Amendment exclusionary rule's good faith exception. Judge Jackson dissented from both of those holdings.

Monday, June 22, 2009

Sweet justice, yes; tweet justice, no

Yesterday's Stars and Stripes included this article reporting that Military Judges' Benchbook honcho COL Ted Dixon is drafting instructions for military judges to deliver to members panels concerning use of Internet resources and social networking sites while the case is pending. Kent Harris, Jury instructions to include rules on use of new media, Stars & Stripes, June 21, 2009. The article also reports that "[i]n the meantime, some judges are already using their own versions. In recent courts-martial in Italy, Army and Air Force judges have warned jurors not to talk about the trial with others using any form of communication."

h/t Phil Cave's Court-Martial Trial Practice blog

Two new Walters/Seider issues

When I was writing an extended post about remedies for Walters/Seider violations on Friday, I was unaware that on that very day, CAAF had granted review of two Walters/Seider issues arising from naval cases.

The granted issue in United States v. Ross, No. 09-0242/MC, is : "WHETHER, BY FINDING APPELLANT GUILTY OF THE CHARGE AND SPECIFICATION EXCEPT FOR THE WORDS 'ON DIVERS OCCASIONS,' THE MILITARY JUDGE RENDERED AMBIGUOUS FINDINGS NOT CAPABLE OF REVIEW UNDER ARTICLE 66, UCMJ, 10 U.S.C. § 866." I can't find NMCCA's opinion in the case anywhere online -- including in the formerly comprehensive but now useless Navy Knowledge Online. If anyone has a copy, please e-mail it to us at caaflog@caaflog.com. The wording of the issue makes clear that this is a judge-alone case, so it could present the remedy isuse we discussed regarding Wilson.

The granted issue in United States v. Trew, No. 09-0414/NA, is "WHETHER, IN LIGHT OF UNITED STATES v. WALTERS, 58 M.J. 391 (C.A.A.F. 2003) AND UNITED STATES v. SEIDER, 60 M.J. 36 (C.A.A.F. 2004), THE CHARGE AND SPECIFICATION MUST BE DISMISSED WITH PREJUDICE, BECAUSE THE LOWER COURT COULD NOT CONDUCT A PROPER APPELLATE REVIEW UNDER ARTICLE 66 AND DOUBLE JEOPARDY PREVENTS A REHEARING. SEE UNITED STATES v. WILSON __ M.J. ___ (C.A.A.F. 2009)." NMCCA's opinion in the case is published at 67 M.J. 603. We briefly discussed Trew here. Like Wilson, Trew was a judge-along court-martial. So if CAAF rules for the defense and CDR Battin is still on the bench, it could also provide CAAF with an opportunity to remand the case for clarification as a remedy for a Walters violation in a judge-alone case.

Sunday, June 21, 2009

This week in military justice -- 21 June 2009 edition

This week at the Supremes: There are no expected military justice developments at the Supremes this week.

This week at CAAF: CAAF will hold oral argument in the twin Aviano cases of United States v. Ashby, No. 08-0770/MC, and United States v. Schweitzer, No. 08-0746/MC, on Wednesday. The many issues in the cases are synopsized here. The argument will be a melancholy event since Judge Everett was to have sat on the court for both cases. I don't know who will sit in his place; it could be another CAAF senior judge, acting Chief Judge Erdmann could ask Chief Justice Roberts to designate an Article III judge to sit with CAAF pursuant to Article 140(f), or the court could sit with just four judges, which would give an advantage to the government. (If just four judges sit, a tie vote affirms the lower court's judgment, which would mean that the government would need only two votes to prevail rather than three; essentially, the missing judge is spotted to the party that prevailed below, in these cases the government.)

This week at the CCAs: On Thursday, NMCCA will set en banc to hear the government's second Article 62 appeal in the case of United States v. Wuterich. The issues to be argued deal with the existence of a qualified reporter's privilege. The court will hear argument from counsel for the United States and for CBS. Counsel for SSgt Wuterich (of which I am one) haven't taken a position on the issues being argued and respectfully declined NMCCA's offer to let them participate in the argument. A synopsis of the case is available here. On Friday, AFCCA will hear oral argument in United States v. Streete. The issues to be argued are:




Saturday, June 20, 2009

Flyspecking Denedo

The current Supreme Court term began with the Court wrestling with the implications of a military justice statute it had previously overlooked. See Kennedy v. Louisiana, 129 S. Ct. 1 (2008). How well did the Supremes understand the military justice system in Denedo? The answer appears to be pretty well, but not perfectly.

Let's start with the majority opinion.

The first inaccuracy seems to arise from imprecise use of language rather than a lack of understanding of the system. Justice Kennedy's opinion for the Court explains, "In exchange for his plea the convening authority referred respondent's case to a special court-martial, §819, which, at the time, could not impose a sentence greater than six months' confinement." Denedo, slip op. at 2. Of course, even before the National Defense Authorization Act for Fiscal Year 2000 increased the length of confinement that a special court-martial could adjudge, special courts-martial could (and often did) impose sentences greater than six months' confinement -- in a case with an enlisted accused, they could impose a sentence of six months' confinement, plus a bad-conduct discharge, plus forfeiture of 2/3 pay per month for 6 months, plus reduction to pay grade E-1.

Second, in discussing Clinton v. Goldsmith, the Denedo majority opinion states: "Following [Major Goldsmith's] conviction, Congress enacted a statute authorizing the President to drop convicted officers from the rolls of the Armed Forces." Denedo, slip op. at 7. Actually, authorization to drop convicted officers from the rolls existed long before Maj Goldsmith's conviction; in fact, section 10 of the UCMJ as enacted in 1950 provided that "the President may at any time drop from the rolls of any armed force any officer who has been absent without authority from his place of duty for a period of three months or more, or who, having been found guilty by the civil authorities of any offense, is finally sentenced to confinement in a Federal or State penitentiary or correctional institution." 81 P.L. 506, § 10; 64 Stat. 107, 146. What the National Defense Authorization Act for Fiscal Year 1996, 110 Stat. 325, actually did was expand the grounds for dropping an officer from the rolls to include confinement for at least six months resulting from a court-martial conviction.

Third, the Denedo majority opinion rather obviously mischaracterizes what happened in Clinton v. Goldsmith. The Denedo majority opinion states, "Goldsmith sought extraordinary relief as authorized by the All Writs Act to enjoin the President from removing him from the rolls. The AFCCA denied relief, but the CAAF granted it." Denedo, slip op. at 7. In fact, Maj Goldsmith never petitioned AFCCA to enjoin the President from dropping him from the rolls. It's strange that the Denedo majority would make this mistake, because Justice Souter's opinion for the Court in Clinton v. Goldsmith emphasizes this point:
Goldsmith did not immediately contest the proposal to drop him, but rather petitioned the Air Force Court of Criminal Appeals for extraordinary relief under the All Writs Act, 28 U.S.C. § 1651(a), to redress the unrelated alleged interruption of his HIV medication during his incarceration. The Court of Criminal Appeals ruled that it lacked jurisdiction to act, and it was in Goldsmith's appeal from that determination that he took the first steps to raise the issue now before us, an entirely new claim that the Air Force's action to drop him from the rolls was unconstitutional.
526 U.S. 529, 532-33 (1999).

Fourth, the Denedo majority doesn't seem to understand the distinction between the court-martial and the convening authority. The majority quotes Article 67(c)'s language that CAAF has authority over "matters of law" connected to "the findings and sentence as approved by the convening authority . . . ." Denedo, slip op. at 10. Explaining how that provision is satisfied in this case, the majority opinion states, "Respondent's Sixth Amendment claim presents a 'matte[r] of law' with respect to the [guilty] findings . . . as approved by the [special court-martial] . . . ." Id. (all alterations except final ellipsis in original). So the Court substituted "as approved by the [special court-martial]" for "as approved by the convening authority." But, of course, it isn't the special court-martial that approves its own findings and sentence. Rather, it's the convening authority--in Denedo's case the Commanding Officer of USS JOHN F. KENNEDY--who approves the sentence (and who sometimes acts on the findings).

The dissent also got a couple of little things wrong. First, Chief Justice Roberts' dissenting opinion states, "The CCAs provide direct, record-based review of court-martial judgments, but they may only review cases referred by the judge advocate general, who in turn refers only those cases in which specific sentences are imposed. 10 U.S.C. §§866(b), (c)." Denedo dissent, slip op. at 3. But a Judge Advocate General doesn't refer only cases resulting in a specific sentence. Rather, a Judge Advocate General can -- and, as AFCCA's recent decision in United States v. Harvey demonstrates, sometimes does -- refer cases with lesser sentences to a CCA under the authority granted by Congress in Article 69(d)(1).

The other minor glitch in the dissent occurs in its discussion of DuBay hearings. The dissenting opinion states, "Instead, the CCAs will have to resort to the procedures invented by United States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967), under which a new convening authority will refer a case to a new court-martial, and task various military personnel who have no prior familiarity with the case to conduct an out-of-court evidentiary hearing on the merits of the petitioner's claim." Denedo dissent, slip op. at 10. First, of course, DuBay hearings aren't necessarily sent to a "new convening authority"; the case is often remanded to the same convening authority who convened the original court-martial. Nor is the case necessarily referred to a new court-martial. I can't think of a time when I've seen a new court-martial created to handle a DuBay hearing. Has anyone else? Finally, I have no idea what the dissent means by "an out-of-court evidentiary hearing." The whole point of a DuBay hearing is to have an in-court evidentiary hearing.

These errors are all minor; overall, the Court did a good job dealing with our rather idiosyncratic system. Still, it's striking how many even small errors are in a decision of an institution with the stature and brainpower of the Supreme Court.

SG's deadline extended in Wuterich

SCOTUS has extended the SG's deadline for filing a response to the Wuterich v. United States cert petition, No. 08-1133, until 5 August 2009. [Familiar disclaimer: I'm petitioner's counsel of record in Wuterich.]

Thinking about House, Denedo, and review of subjurisdictional contested convictions

The Navy JAG's recent ruling on the House petition for new trial was satisfying and probably just. It was also legally incorrect.

LT House was found guilty by a general court-martial of conduct unbecoming an officer for alleged sexual misconduct, as well as two other offenses. One of the convictions was set aside on Article 69 review, which LT House received because his sentence didn't qualify his case for an Article 66 appeal to the Navy-Marine Corps Court of Criminal Appeals. Several years after LT House was convicted, it was discovered that the Army Crime Lab examiner who conducted the testing in his case was falsifying reports. The Army Crime Lab's subsequent retesting of the evidence from LT House's case revealed that, contrary to the original DNA examiner's report and testimony, the semen on a condom didn't match LT House's DNA. Rather, LT House was actually excluded as a potential source of the semen. The retesting also disproved other DNA evidence upon which the prosecution relied at LT House's trial.

The threshold legal issue facing the Navy JAG when considering LT House's petition for new trial was whether such a petition may be granted even if it isn't filed within Article 73's two-year deadline. The Navy JAG ruled that the two-year deadline is subject to equitable tolling. The opinion states:

There is a dearth of military case law pertaining to equitable tolling; however, a recent example can be found in United States v. Luke, 63 M.J. 60 (C.A.A.F. 2006), another case involving deficiencies in Mr. Mills' DNA processing procedures. Although the court did not expressly invoke the doctrine of equitable tolling, the fact that the court acted upon a petition for new trial that was submitted outside the prescribed two-year statutory period indicates that the doctrine was applied.
United States v. House, slip op. at 3 n.2.

There are a few problems with this passage. First, Luke isn't a petition for new trial case. Rather, it was before CAAF on a petition granting review of NMCCA's affirmance of the case under Article 66. Contrary to the Navy JAG's opinion, CAAF didn't "act[]upon a petition for new trial" in Luke. Second, the opinion overlooks United States v. Van Tassel, 38 M.J. 91, 93 (C.M.A. 1993), which actually was a petition for new trial case where a court tolled Article 73's filing period. Third, and most importantly, the opinion fails to consider the Supreme Court's opinion in Bowles v. Russell, 551 U.S. 205 (2007), and CAAF's opinion in United States v. Rodriguez, 67 M.J. 110 (C.A.A.F. 2009).

In Bowles, the Supreme Court emphasized that "[w]e have long and repeatedly held that the time limits for filing a notice of appeal are jurisdictional in nature." 551 U.S. at 206. Bowles emphasized "the jurisdictional significance of the fact that a time limitation is set forth in a statute." Id. at 210. A court has no power to extend such a statutory deadline because a "Court has no authority to create equitable exceptions to jurisdictional requirements." Id. at 214.

But for Article 73, a Judge Advocate General has no authority to set aside a finding of guilty. On the contrary, Article 76 forbids a Judge Advocate General from setting aside a final finding of guilty except as provided by Article 73. Article 73's two-year statutory deadline would, therefore, appear to have the same jurisdictional effect on a Judge Advocate General's power to grant a petition for new trial as a statutory deadline has on an appellate court's jurisdiction to rule on an appeal. Yet the Navy JAG's ruling in House fails to even mention Bowles, much less wrestle with its implications for a Judge Advocate General's authority to equitably toll Article 73's two-year filing deadline.

Having found the power to equitably toll the petition for new trial filing deadline, the Navy JAG proceeded to use it. The opinion reasons that within the two-year petition for new trial period, the United States government suspended the same examiner who conducted the DNA testing in LT House's case because he permitted contamination in his testing process. House, slip op. at 3. (The examiner's even greater acts of misconduct appaerntly weren't discovered until a year and a half later, past the two-year deadline for LT House to file a petition for new trial.) Yet the U.S. government failed to advise LT House of the examiner's suspension. Id. The Navy JAG's opinion reasons:
Had the accused received timely Brady notice, he would have been able to submit a petition for new trial within the prescribed limitations. As the government was responsible for the delay in communicating the requisite information, the government should not be permitted to strictly enforce the two-year limitation. Accordingly, I find that the two-year statutory limitation on the filing period for a new trial was equitably tolled as of January 2004 [when Mr. Mills was initially suspended].

The Navy JAG proceeded to rule that the retesting of the DNA evidence provided a basis for invalidating LT House's conviction to the conduct unbecoming charge. He concluded, "In light of the significant differences between the new DNA evidence and the DNA evidence presented at trial, the arguments and theories that would have been available to the defense with knowledge of the new evidence, and all other pertinent facts, I conclude that this evidence would probably produce a substantially more favorable outcome for the accused." Id., slip op. at 5.

But that still left one finding of guilty intact -- conspiracy to make a false statement. The Navy JAG set aside that finding of guilty as well. But his rationale for doing so is unpersuasive. LT House was charged with and convicted of conspiring with two other Navy lieutenants to make false statements. Apparently the specification originally alleged particular acts in furtherance of the conspiracy. But the military judge found LT House guilty be exceptions and substitutions. The specification, as excepted and substituted, alleged that the three lieutenants "did on divers occasions . . . conspire . . . to . . . make a false statement, and in order to effect the object of the conspiracy, the said Lieutenant Harris, the said Lieutenant House, and the said Lieutenant Williams each made a false statement to NCIS." The Navy JAG threw out the conviction, reasoning:

The summarized record of trial reflects that the government presented evidence of a number of statements that the accused made to NCIS. It is not apparent from a plain reading of the specification as excepted and substituted, or by a review of the summarized record of trial, which statement the military judge concluded was false. Because the findings do not establish which statement provided the basis of the conviction, this specification is not reviewable and the findings cannot be affirmed. See U.S. v. Scheuer [sic], 62 M.J. 100 (C.A.A.F. 2005)(citations omitted).
House, slip op at 5.

This reasoning is flawed for at least two reasons. First, LT House's false statement to NCIS wasn't necessary to his conviction for this offense. Even if that allegation were excepted from the specification, he would still be guilty of the conspiracy due to either LT Harris's or LT Williams's act in furtherance of the conspiracy. So any uncertainty as to what statement of LT House's to NCIS was false would at most justify modifying the specification to omit that particular overt act, not reversing the finding of guilty altogether.

Second, Scheurer is entirely inapposite to consideration of a petition for new trial under Article 73. Scheurer is an application of the Walters/Seider line of cases. That line of cases is arises from limitations that Article 66(c) places on the CCAs' authority to affirm findings of guilty. In fact, Walters expressly noted that its holding "hinge[d] on [Article 66(c)'s] unique statutory function." United States v. Walters, 58 M.J. 391, 395 (C.A.A.F. 2003). It was based on "a critical limitation" to the CCAs' "unique power of review for factual sufficiency" under Article 66(c). Id. CAAF offered this summary of its holding in Walters: AFCCA "could not conduct a factual sufficiency review of Appellant's conviction because the findings of guilty and not guilty do not disclose the conduct upon which each of them was based." Id. at 397 (emphasis added). But LT House's case never qualified for Article 66(c) review because his sentence included neither a dismissal nor a year or more of confinement. (In fact, it didn't include any confinement at all.) Nor is a Judge Advocate General exercising any authority under Article 66(c) when ruling on a petition for new trial; rather, such petitions are governed by Article 73. And Article 73 does not include factual sufficiency review. Walters, Seider, and Scheurer are all, therefore, inapplicable to the House case and the invalidation of the conspiracy conviction under this line of cases is legally erroneous.

Of course, even if I'm right about these problems in the opinion, nothing will change. The Navy JAG's ruling isn't subject to any further review. So LT House will get to keep his satisfying, probably just, but legally erroneous victory.

But what of the next person in LT House's position? Before obtaining his victory from the Navy JAG, LT House had filed a previous petition for new trial that was denied as untimely, had sough reconsideration of that denial, had unsuccessfully petitioned NMCCA for extraordinary relief, had filed an unsuccessful writ appeal with CAAF, and had filed an ultimately denied cert petition with the Supreme Court. His counsel then instituted suit in the Court of Federal Claims, at which point the Navy JAG agreed to take another look at his case. Can we count on all factually innocent servicemembers who receive subjurisdictional sentences to have the knowledge, patience, and financial resources that LT House required to ultimately prevail in his case?

And what if the next time a factually innocent servicemember with a subjurisdictional sentence files an out-of-time petition for new trial with a Judge Advocate General due to misconduct at the Army Crime Lab, the Judge Advocate General applies Bowles v. Russell and rejects the petition as untimely?

Rather than requiring a Judge Advocate General to bend the law to produce a just result, we should provide a right of appeal for any servicemember who is found guilty by a GCM or SPCM despite having pleaded not guilty, regardless of the severity of the resulting sentence. If LT House had had such a right to appeal, then a clear framework would have existed to deal with the revelation of the Army Crime Lab examiner's misconduct and the subsequent exculpatory DNA retesting results.

Let's hypothesize that LT House had lost his initial appeal and CAAF had denied review before Mr. Mills's misconduct came to light. What then? United States v. Denedo provides the answer. If his case had once been within NMCCA's jurisdiction, then LT House could return to that court with the new information to seek a writ of error coram nobis. Such an instance would demonstrate the importance of allowing the military justice system's courts to protect their own integrity far more compellingly than did the facts of Denedo itself. As the Denedo majority observed:
The military justice system relies upon courts that must take all appropriate means, consistent with their statutory jurisdiction, to ensure the neutrality and integrity of their judgments. . . . [T]he jurisdiction and the responsibility of military courts to reexamine judgments in rare cases where a fundamental flaw is alleged and other judicial processes for correction are unavailable are consistent with the powers Congress has granted those courts under Article I and with the system Congress has designed.
The House case, where the accused was convicted due to false scientific evidence foisted into the military justice system by the U.S. government's own unscrupulous employee, truly involves a threat to the system's integrity.

The House case also demonstrates the callousness of the dissent's "You're in the Army now" quip. Chief Justice Roberts wrote for the four dissenting justices, "To be sure, the limited nature of relief available under Article 73 might lead one to question whether that is truly the only postconviction relief the UCMJ permits. 'You're in the Army now' is a sufficient answer to such concerns; the relief available looks positively extravagant in light of the prior history and tradition of military justice." But when LT House first enlisted in the Navy and later accepted a commission, he shouldn't have sacrificed his right to be free from the lifetime stigmatization of a factually erroneous federal conviction resulting from a U.S. government employee's falsified DNA report. Yet that might very well be the result in a subjurisdictional case such as LT House's were Article 73 to be applied consistently with Bowles v. Russell.

But those in LT House's position can have their right to be free from factually erroneous convictions protected by adding them to the class of servicemembers who may appeal their cases to the Courts of Criminal Appeals. The House case amply demonstrates the dangers of excluding such cases from appellate review.

Friday, June 19, 2009

Thinking about the Wilson remedy

As we noted yesterday, it appears that the evidence established beyond any reasonable doubt that SSG Wilson raped his step-daughter at least once. He was charged with raping her on divers occasions. The military judge found him guilty except for the words "on divers occasions" but didn't specify which was the one occasion for which she was convicting him. Applying the Walters/Seider line of cases, a four-judge majority of CAAF set aside the finding of guilty to what had originally been the divers occasions spec under the reasoning that ACCA couldn't know which specific instances SSG Wilson had been acquitted of and which specific instance he had been convicted of, thus preventing it from carrying out its appellate review function under Article 66. I'm not a fan of Walters and Seider doctrinally, but I can buy this as a fair (though debatable, see Judge Stucky's dissent) application of that case law. [If we really buy the principle underlying Walters and Seider, then it's impossible for a CCA to review any divers occasion finding of guilty where the government presents evidence of at least three acts, because the CCA can never know whether the members found the accused guilty of any particular incident or not. But CAAF -- with the exception of Judge Erdmann -- balked at taking the line of cases to its logical extreme in United States v. Rodriguez, 66 M.J. 201 (C.A.A.F. 2008). But that's a debate for another day.]

What I find particularly dissatisfying about Wilson is the remedy. Here's the majority opinion's complete remedy section:

"[T]he remedy for a Walters violation is to set aside the finding of guilty to the affected specification and dismiss it with prejudice." Scheurer, 62 M.J. at 112. Accordingly, we set aside the finding of guilty as to Specification 2 of Charge II and dismiss that specification with prejudice.
United States v. Wilson, __ M.J. ___, No. 09-0010, slip op. at 16 (C.A.A.F. June 18, 2009).

First, this is a correct application of CAAF's own case law and is thus supported by the doctrine of stare decisis. But stare decisis doesn't operate as a straight jacket when a court is applying its own precedent. CAAF could depart from Scheurer on this point if it wants to. And for the reasons I'll discuss below, it should want to. Perhaps Army GAD will file a petition for reconsideration to give CAAF an opportunity to decide whether it wants to.

The original Walters case was tried before members. See 58 M.J. 391, 392 (C.A.A.F. 2003). In a members case, there's no practical way to send the case back to the members for clarification as to the basis for the verdict. So CAAF's remedy in Walters -- setting aside the finding of guilty and dismissing the affected charge -- made sense. Seider was also a members case, see 60 M.J. 36, 36 (C.A.A.F. 2004), so the remedy of setting aside the finding of guilty and dismissing the affected specification made sense there as well. Augspurger? Also a members case. See 61 M.J. 189, 190 (C.A.A.F. 2005).

So what about Scheurer, which the Wilson majority quoted? Scheurer was a judge-alone case. See 62 M.J. 100, 103-04 (C.A.A.F. 2005). Here's Scheurer's entire analysis of the proper remedy for the Walters/Seider violation in that case:

Because double jeopardy principles would bar any rehearing on incidents of which Appellant was found not guilty, and because ambiguous findings preclude distinguishing incidents that resulted in acquittal from the single incident that resulted in a conviction, the remedy for a Walters violation is to set aside the finding of guilty to the affected specification and dismiss it with prejudice. See 58 M.J. at 397; see also United States v. Seider, 60 M.J. 36 (C.A.A.F. 2004). Accordingly, we set aside the finding of guilty to specification 3 of the original Charge and dismiss that specification with prejudice.
62 M.J. at 112.

It's probably true that in members cases like Walters, Seider, and Augspurger,"ambiguous findings preclude distinguishing incidents that resulted in acquittal from the single incident that resulted in a conviction." But that isn't as apparent in judge-alone cases like Scheurer and Wilson. I don't know whether Judge Wright remains in a judicial billet, but let's assume that she does. Why can't the case be remanded to her to clarify the basis for the conviction? R.C.M. 1102 would appear to provide a vehicle for doing precisely that. So there's a potential alternative remedy. But what if Judge Wright is no longer in a judicial billet? Then things get a little more tricky. Military Rule of Evidence 509 may preclude accepting evidence from former-Judge Wright, such as an affidavit, explaining the basis for her conviction. A case is currently pending before CAAF -- United States v. Matthews, No. 08-0613/AR -- that may clarify the answer to that question. The issue in Matthews is: "WHETHER THE UNITED STATES ARMY COURT OF CRIMINAL APPEALS ERRED IN HOLDING THAT MIL. R. EVID. 509 DOES NOT BAR THE GOVERNMENT FROM CALLING THE MILITARY JUDGE FROM A JUDGE-ALONE TRIAL TO TESTIFY AT A DuBAY HEARING AS TO HIS DELIBERATIVE PROCESS." The case was orally argued on 14 April, so while CAAF's judges probably know how it's going to come out, we might not see it for a while.

The answer to whether Military Rule of Evidence 509 would bar evidence from a former judge as to the basis of the findings of guilty doesn't matter if Judge Wright remains on the bench. And if she is no longer on the bench, the 10-day reconsideration window will probably close before we receive more guidance about the permissibility of obtaining an affidavit from her through a decision in Matthews. I hope that Army GAD files a petition for reconsideration to at least give CAAF an opportunity to consider whether, in a judge-alone case, there's an alternative remedy for a Walters/Seider violation short of setting aside a finding of guilty to an offense that's been proven beyond any reasonable doubt and dismissing the affected charge and/or specification.

New CA Mulls Over Chessani Case

As the North County Times reports, here, the Commandant of the Marine Corps has assigned Lt. Gen. George Flynn, Deputy Commandant for Combat Development and Integration, HQMC and Commanding General of the Marine Corps Combat Development Command as the new CA in the LtCol Chessani court martial. We'll let you know if charges follow. Our prior posts on the Chessani case are too numerous to list, start here.

h/t to Thomas Moore Law Center website, here.

Thursday, June 18, 2009

Two new CAAF decisions -- and a question

For some reason my computer is refusing to access CAAF's web site. Phil Cave was kind enough to send me two opinions that CAAF issued today.

The first is United States v. Marshall, __ M.J. ___, No. 08-0779/AR (C.A.A.F. June 18, 2009). Judge Stucky wrote the opinion of the court. Judge Ryan concurred in the result. I understand that the Marshall opinion is available here.

The issue in Marshall was whether the military judge could properly convict the accused by exceptions and substitutions of escaping from a different person than was alleged in the spec to which the accused pleaded not guilty. No, rules CAAF.

After being apprehended by local authorities and then turned over to military custody, PVT Marshall walked away while he was on an outside smoke break (!) during his pretrial confinement processing.

The spec alleged that the accused escaped from the custody of CPT Kreitman. The evidence showed that CPT Kreitman didn't personally take PVT Marshall into his custody, but rather ordered one of his subordinates to take custody of PVT Marshall from civilian law enforcement authorities. The defense moved for a finding of not guilty under R.C.M. 917, but the military judge denied the motion. The military judge later convicted PVT Marshall by exceptions and substitutions of escaping from the subordinate's custody.

The majority initially rejected the argument that the issue was forfeited, relying on the defense's motion for finding of not guilty and ruling that the defense didn't need to reiterate its same arguments once the military judge found PVT Marshall guilty by exceptions and substitutions.

CAAF rejected the government's argument that the substitution of the subordinate for CPT Kreitman was a minor variance. CAAF concluded that "the substitution was material." The court explained, "The military judge convicted Appellant by exceptions and substitutions of an offense that was substantially different from that described in the specification upon which he was arraigned." The court continued, "Although the nature of the offense remained the same -- escape from custody -- by substituting SSG Fleming for CPT Kreitman as the custodian from whom Appellant escaped, the military judge changed the identity of the offense against which the accused had to defend. This denied him the opportunity to defend against the charge." Id., slip op. at 8 (internal quotation marks omitted). The court also found that PVT Marshall was prejudiced by this variance, observing that his trial strategy focused on showing that he was never in CPT Kreitman's custody.

CAAF set aside the finding of guilty to escape from custody and dismissed the charge. The court also remanded the case to ACCA for reassessment of the sentence.

Judge Ryan concurred in the result. She disagreed with the majority that the motion for finding of not guilty preserved the variance issue. She concluded that the issue was forfeited by the defense's failure to object on variance grounds, absent plain error. Finding plain error, she agreed with the majority's disposition of the case.

CAAF's other decision today was United States v. Wilson, __ M.J. ___, No. 09-0010/AR (C.A.A.F. June 18, 2009). I understand that a copy of Wilson is available here. Chief Judge Effron wrote for the majority. Judge Stucky dissented.

SSG Wilson was charged with raping his stepdaughter on divers occasions. The military judge found him guilty of rape, but excepted the "on divers occasions" language. CAAF observes that by "so doing, the military judge convicted Appellant of a single rape, while acquitting Appellant of multiple incidents of rape." Id., slip op. at 3. After a detailed recitation of the facts, CAAF added, "The military judge found Appellant guilty of Specification 2 of Charge II, excepting the words 'on divers occasions.' The military judge did not indicate on the record or through substitutions to the specification the rape incident of which she was convicting Appellant. Neither party asked for clarification as to which alleged rape incident formed the basis of the conviction." Id., slip op. at 9.

ACCA affirmed, explaining in a footnote that is was sure it could identify the incident for which the military judge convicted SSG Wilson of rape: "The victim in this case unequivocally testified that she was raped on only one occasion, and the parties accordingly shaped their closing arguments to address the only assertion of rape described by the victim. Thus, we find no ambiguity in the finding at issue." Id., slip op. at 10 (quoting unpublished ACCA opinion).

CAAF explained that during the government's case in chief, it presented evidence of two rapes. CAAF repeated its by-now familiar holding from United States v. Walters, 58 M.J. 391 (C.A.A.F. 2003), that where a divers occasions spec is changed through exceptions and substitutions to a single occasion finding of guilty, that "[i]f there is no indication on the record which of the alleged incidents forms the basis of the conviction, then the findings of guilt are ambiguous and the Court of Criminal Appeals cannot perform a factual sufficiency review." Id., slip op. at 12. In this case, "[b]ecause evidence of multiple incidents of rape was presented at trial, the military judge was required to indicate the single incident for which she convicted Appellant." Id., slip op. at 13. CAAF explained, "Here, the record does not contain either substituted language or a statement on the record that would identify whether the military judge convicted Appellant of rape for the bathroom incident or the bedroom incident. Without such clarification, the findings of the present case are fatally ambiguous." Id., slip op. at 13-14.

CAAF remedied the error by setting aside the finding of guilty to rape and dismissing the specification with prejudice and setting aside the sentence. CAAF authorized a rehearing on the sentence.

Judge Stucky dissented, concluding that ACCA properly affirmed the finding of guilty. He reasoned that the evidence would have permitted the military judge to conclude beyond a reasonable doubt that SSG Wilson raped his stepdaughter on only one particular occasion. That occasion must, therefore, be the basis for the finding of guilty and ACCA's affirmance.

The outcome in this case seems like an enormous windfall to SSG Wilson. There may be a very good answer to this question, but here's what I don't get. Rather than setting aside the conviction and dismissing the rape specification, why isn't the right remedy to remand the case to the military judge to clarify what incident was the basis of the conviction, thereby permitting further review by ACCA?

Judge Rogers grants Gray's habeas counsel more time

Judge Rogers issued this order today extending Ronald Gray's habeas counsel's deadline for filing their traverse until 30 September 2009. Gray v. Gray, No. 08-3289-RDR (D. Kan. June 18, 2009) (order). Judge Rogers explained: "Under circumstances which include novel habeas challenges to the imposition of a death sentence in a military proceeding, and the court's recent appointment of attorneys providing substantive legal assistance to petitioner, the court finds the 120 day extension granted herein does not constitute unwarranted delay in the court’s resolution of this capital habeas action." Id., slip op. at 1-2.

Wednesday, June 17, 2009

E Street Bland?

Today's Washington Post includes this architecture review of CAAF's newly renovated neighbor, the Old City Hall and new D.C. Court of Appeals courthouse. CAAF's courthouse is alluded to a couple of times in the article. Writing about a newly added square glass box on the D.C. Court of Appeals' building's E Street side -- the same side as CAAF's entrance -- Phillip Kennicott writes, "It repositions the entrance of the building from the south to the north side, where the courthouse is elegantly flanked by two lesser and later court buildings." The article also describes the building's appearance from the south: "the relatively modest [D.C. Court of Appeals] building surmounted by the massive roof of the National Building Museum . . . looks like a little Acropolis, a striking contrast to the denatured and bland civic architecture that surrounds it." Presumably Mr. Kennicott was including CAAF's courthouse -- which sits on the D.C. Court of Appeals' west side -- as one of the contrasting buildings.

Cox Commission II hearing

The link to the Cox Commission II hearing webcast seems to have died. Perhaps NIMJ will be able to restore the link or post the video to a permanent site. In the meantime, here's a quick report about yesterday's proceedings.

Five of the commission members were present: Judge Cox, Judge Wilkins, Professor Saltzburg, RADM Guter, and MG Nash. Both of the commission's reporters -- Professors Beth Hillman and Vic Hansen -- were also there.

Judge Cox began the proceedings in the most appropriate way possible -- observing a moment of silence to remember Judge Everett and Kevin Barry. After Judge Cox's introductory remarks, Phil Cave -- speaking on behalf of the Bar Association of the District of Columbia -- made the first presentation to the commission. Phil recommended augmenting the resources available to the defense in court-martial cases and a more open rulemaking process for the military justice system.

The next presentation was by Tom Sullivan -- a partner at Jenner & Block and the former U.S. Attorney for the Northern District of Illinois. Mr. Sullivan is the nation's leading expert on recording stationhouse interrogations. He spoke in favor of adopting a requirement that federal law enforcement agencies -- including the military's -- record stationhouse interrogations in serious felony cases. I was pleased to hear that he doesn't recommend an exclusionary rule in the event that such a requirement is violated. Rather, he supports an instruction advising the jury/panel that the interrogation wasn't recorded and that such a recording would have been a more accurate way to present any resulting admissions. Phil Cave has posted links to a report and an article by Mr. Sullivan here. Mr. Sullivan's 2008 American Criminal Law Review article called Recording Federal Custodial Interviews is available here. For me, Mr. Sullivan's presentation was the highlight of the day.

My presentation followed Mr. Sullivan's. I used the Navy JAG's recent reversal of the United States v. House court-martial conviction as a vehicle for exploring needed reforms in the military justice system. I recommended greater equality in the parties' access to subpoenas and litigation resources. I also advocated allowing any servicemember convicted of a contested charge or specification by a general or special court-martial to appeal that conviction to the appropriate CCA. And I advocated adoption of the JO'Cian proposal to allow waiver of appellate review as a negotiated pretrial agreement provision, which JO'C advanced in this law review article. John F. O’Connor, Foolish Consistencies and the Appellate Review of Courts-Martial, 41 Akron L. Rev. 175 (2008). And here are links to my written proposals concerning: (1) equalization of access to subpoenas; (2) appellate review of contested subjurisdictional cases; (3) waiver of appellate review as a negotiated pretrial agreement term; and (4) allowing an accused in a military capital court-martial to plead guilty.

A representative of SLDN then spoke, followed by two spokespeople for a veterans' group. Judge Cox then invited Theodore Essex to address the commission. Mr. Essex was the lead author of an article quite critical of the first Cox Commission report. Lieutenant Colonel Theodore Essex and Major Leslea Pickle, A Reply to the Cox Commission on the 50th Anniversary of the Uniform Code of Military Justice, 52 A.F.L. Rev 233 (2002). In his presentation, Mr. Essex advocated farming general officer misconduct cases out to DOJ and raised concerns about the waiver-of-appellate-review-as-a-negotiated-pretrial-agreement-term proposal. CAAFlog contributor Cully Stimson of the Heritage Foundation then spoke, discussing innovations from state criminal justice systems that the military may want to emulate, such as a no drop policy for domestic abuse cases instituted by the San Diego D.A.'s office and a child homicide statute that omits any malice element, such as California Penal Code § 273ab, which provides: "Any person who, having the care or custody of a child who is under eight years of age, assaults the child by means of force that to a reasonable person would be likely to produce great bodily injury, resulting in the child's death, shall be punished by imprisonment in the state prison for 25 years to life."

The hearing ended with reports from the commission's two reporters. Professor Vic Hansen spoke first. He cautioned that changes in one area of the military justice system could knock down dominoes that would affect other areas. He noted that some proposed reforms implicated larger philosophical issues about the role of the military judge and the role of the convening authority. He raised the issue of the extent to which staff judge advocates should supervise the prosecution function. And he questioned whether summary courts-martial should be retained or abolished.

Professor Beth Hillman closed out the hearing. Her elegant weaving of themes from the hearing and recent military justice developments would be the envy of even the Hunt of the Unicorn tapestries' creators. She noted recurring questions concerning the extent of the right of appeal within the military justice system and the powers of the system's courts. Themes of unnecessary or unwise diversions of appellate resources and equality influence whether reform is appropriate. She noted questions concerning whether military appellate courts should specify issues not raised by counsel. She also raised the issue of whether the DuBay hearing mechanism should be codified.

The entire hearing lasted only about 3-1/2 hours. For a military justice wonk, it was time well spent.

Literary reviews of CAAF's Weston opinion

I remain delighted by the writing in Judge Stucky's opinion for the court in United States v. Weston, __ M.J. ___, No. 08-0594/MC (C.A.A.F. June 11, 2009). The opinion begins:

There was something odd about the electric razor in the bathroom. Staff Sergeant (SSgt) ME, a female Marine court reporter, noticed it sitting on the wall locker shelf in the bathroom she shared with Appellant, the senior court reporter, whom she knew to be experienced with computers and surveillance equipment. SSgt ME typically changed clothes in the bathroom and for the past year had felt that she was being watched, a feeling that she attributed to paranoia. But this time the circumstances were simply too odd and her suspicions too strong. SSgt ME took the razor with her when she left work that day. Her attempt to open the razor’s casing ended at Sears with a "Torque" T7 screwdriver. Inside the razor she found a camera.
Judge Stucky's prose has now drawn notice from beyond military justice wonkdom.

Law.Com Legal Blog Watch has posted a piece here called "Cloak-and-Dagger Justice" about the Weston opinion, accompanied by a photo of Humphrey Bogart. The post links to this Suits & Sentences post called "Judicial noir" that also comments on Weston (and offers amusing rewrites of Marbury v. Madison, Lochner v. New York, and Bush v. Gore).

h/t Phil Cave's Court-Martial Trial Practice blog

SG waives response in Stephens

The Solicitor General has waived the United States' right to respond to the cert petition in Stephens v. United States, No. 08-1514. [DISCLAIMER: I'm petitioner's counsel of record in the case.]

New published NMCCA opinion upholding conviction under Article 134 clauses (1) and (2) as alternative to Article 134 clause (3)

NMCCA issued a published opinion today revisiting the vexsome question of the proper relationship between Article 134 clauses (1) and (2) and Article 134 clause (3). United States v. Purdy, __ M.J. ___, No. NMCCA 200700659 (N-M. Ct. Crim. App. June 17, 2009). The opinion isn't yet on NMCCA's web site, so I've posted a copy here. Senior Judge Geiser wrote the opinion of the court, in which Judge Kelly and Senior Judge Couch joined. Senior Judge Couch also wrote a separate concurring opinion.

The opinion is sketchy on the precise fact pattern giving rise to the clauses (1) and (2) versus clause (3) issue. But here's what I think happened, piecing together the pieces of the puzzle that the opinion provides and guessing at the rest. Petty Officer Purdy was charged with receiving and possessing child pornography under Article 134 clause (3) for violating 18 U.S.C. § 2252A. The accused pleaded not guilty to the specification as worded, but guilty to an LIO of violating Article 134 clauses (1) and (2). The military judge conducted the providence inquiry on that basis and ultimately accepted Petty Officer Purdy's plea and found him guilty on that basis. (If anyone is familiar with the record in this case, can you please confirm or correct that assumption about the facts?)

The court notes that the case was tried before CAAF decided United States v. Medina, 66 M.J. 21 (C.A.A.F. 2008). The court continues, "Having considered Medina's refinement of Article 134, UCMJ, as applied to child pornography offenses under 18 U.S.C. § 2252A, we find the appellant's argument that his plea was improvident unpersuasive." Id. NMCCA observes that in Sapp, CAAF held that "clauses 1 and 2 are not necessarily lesser included offenses of offenses alleged under clause 3, although they may be, depending on the drafting of the specification." Id., slip op. at 4 (quoting Medina, 66 M.J. at 26). NMCCA observes that Medina, while preferring a "rigid 'elements test' over the 'implicit connection' referenced in" United States v. Sapp, 53 M.J. 90 (C.A.A.F. 2000), nevertheless "seemingly left the door open for the possibility of clauses 1 or 2 to serve as lesser included offenses of clause 3 under unspecified circumstances." Id., slip op. at 4 (footnote omitted).

But in Purdy, NMCCA sidesteps the question of "whether the appellant's conduct and the wording of the specification constitute a lesser-included offense under the facts and circumstances of this case." Id. NMCCA opines that the "gravamen of Medina is the protection of the appellant's right to a knowing and voluntary plea. Even assuming, arguendo, that the offense to which the appellant pled guilty was erroneously referred to as a lesser included offense, the ultimate issue under Medina is whether the appellant had fair notice he was pleading guilty to a distinct theory of liability as compared to that which appeared on the charge sheet." Id. NMCCA holds that in this case, the accused had such fair notice.

NMCCA observes that under Medina, "it is important for the accused to know whether he or she is pleading only to a crime or offense not capital under clause 3, a 'disorder or neglect' under clause 1, conduct proscribed under clause 2, or all three." Id., slip op. at 5 (quoting Medina, 66 M.J. at 26). NMCCA continues, "This can be accomplished either on the charge sheet or through the military judge during the plea inquiry." Id. (citing Medina, 66 M.J. at 27).

NMCCA then holds that in this case, "we are satisfied that the appellant's plea to clauses 1 and 2, as distinct from the charged clause 3 offense, was knowing and voluntary." Id. NMCCA observes that "the appellant voluntarily entered into a stipulation of fact in which he admitted that his conduct was both prejudicial to good order and discipline and service discrediting." Id. "Second, the appellant entered into a pretrial agreement in which he agreed to plead not guilty to the charged clause 3 offense, but instead plead guilty to offenses under clauses 1 and 2 of Article 134, UCMJ." Id. "Third, in expressly indicating that the appellant was pleading guilty to an offense other than that which appeared on the charge sheet, the military judge sufficiently explained the different theories of liability under each clause to include the fact that clauses 1 and 2 carry the additional elements of prejudice to good order and discipline and conduct of a nature to bring discredit to the service." Id.

NMCCA concludes that the "persistent references" in the record "to clauses 1 and 2 as 'lesser included offenses' of the charged clause 3 specification" do not "constitute a substantial basis in law or fact for questioning the guilty plea." Id., slip op. at 5-6.

While concurring in the majority opinion, Senior Judge Couch wrote separately to emphasize that a violation of clauses (1) and (2) of Article 134 shouldn't be considered an LIO of a violation of Article 134 clause 3 because clauses (1) and (2) each contains an element that isn't present in clause (3).

Tuesday, June 16, 2009

BREAKING NEWS: Supremes call for response in Rodriguez v. United States

The Supremes have called for a response from the SG to the cert petition in Rodriguez v. United States, No. 08-1465. (Yes, that Rodriguez.)

Military judge orders reporter to appear as defense witness

Here's a link to a fascinating article about a court-martial case involving a Marine's prosecution for violating an order not to speak with a reporter. The military judge in the case has ruled that a reporter must appear as a defense witness in the case, holding that the reporter isn't protected from testifying by a qualified newsgatherer's privilege. The military judge ruled that he didn't need to decide whether such a privilege applied in the military justice system because it would be overcome in this case even if it did.

h/t Phil Cave's Court-Martial Trial Practice blog

Gene Fidell's analysis of H.R. 569

Here's a link to Gene Fidell's testimony for the House Judiciary Committee's Subcommittee on Courts and Competition Policy on H.R. 569, the Equal Justice for Our Military Act.

Monday, June 15, 2009

CAAF speedy trial grant

CAAF has granted review of a speedy trial issue: "WHETHER THE ARMY COURT ERRED WHEN IT RULED THAT APPELLANT'S RIGHT TO A SPEEDY TRIAL UNDER ARTICLE 10, UCMJ, WAS NOT VIOLATED." United States v. Thompson, __ M.J. ___, No. 09-0145/AR (C.A.A.F. June 11, 2009). An unpublished ACCA decision granting an Article 62 appeal in the case is available here. United States v. Thompson, No. ARMY MISC. 20060901 (A. Ct. Crim. App. Nov. 30, 2006). I assume there's a more recent ACCA opinion in the case, but I can't find it online.

CAAF Abu Ghraib grant

We recently noted that ACCA will be holding oral argument next month in United States v. Lynndie England. Now we learn that CAAF will also be scrutinizing the legal fallout from Abu Ghraib. CAAF has granted review in United States v. Harman, __ M.J. ___, No. 08-0804/AR (C.A.A.F. June 11, 2009), where the granted issue is "WHETHER THE EVIDENCE IS LEGALLY SUFFICIENT TO SUSTAIN THE FINDINGS OF GUILTY BEYOND A REASONABLE DOUBT." ACCA's decision in the case, which we discussed here, is published at 66 M.J. 710.

Sunday, June 14, 2009

No winner in our Denedo contest

At the end of last year, we announced a CAAFlog contest to predict which justice would write the Court's Denedo opinion. Amazingly, even though there were 12 entries in the contest, none predicted Justice Kennedy.

This week in military justice -- Cox Commission II edition

This week at the Supreme Court: The Supreme Court has nothing military justice related on its plate until next week's conference, for which the Rodriguez cert petition, No. 08-1465, has been distributed. We'll be monitoring Rodriguez to see if there's a call for a response from the SG.

This week at CAAF: CAAF has no oral arguments scheduled this week. Judge Everett's funersal service will be held on Tuesday and a visitation is scheduled for Monday evening, both in Durham. In lieu of flowers, donations may be sent to the First Presbyterian Church, 305 East Main Street, Durham, NC 27701, for the Robert Daye Habitat for Humanity House.

This week at the CCAs: The Coast Guard Court of Criminal Appeals will hold oral argument on Wednesday in United States v. Usry. The assignment of error being argued is: "The military judge erred by failing to order further inquiry into Appellant's competency to stand trial." I understand that the issue involves whether a second 706 board was required due to the accused's actions on the day of trial.

This week in military justice events: The second Cox Commission will hold a public hearing at 0900 on Tuesday, 16 June in the GWU law school's moot courtroom.

Saturday, June 13, 2009

Air Force military justice scholarship galore

New issues of both the Air Force Law Review and the Reporter have been published and both feature military justice content.

The first 2009 issue of the Air Force Law Review is available here. The lead article is a piece by Col Mark L. Allred, the Chief Trial Judge of the Air Force Pacific Judiciary Region, about depositions, VTC testimony, and even VTC videotaped depositions, using the court-martial case of United States v. Savard to explore these concepts. [DISCLAIMER: I'm the appellate defense counsel in the Savard case.] Col Mark L. Allred, Depositions and a Case Called Savard, 63 A.F. L. Rev. 1 (2009).

The second article is Maj Christopher Morgan's treatise on multiplicity and unreasonable multiplication of charges. Maj Christopher S. Morgan, Multiplicity: Reconciling the Manual for Courts-Martial, 63 A.F. L. Rev. 23 (2009). Maj Morgan is a professor in the Air Force Academy's Department of Law. I haven't been able to convince myself to spend part of my weekend reading a 50-page article on multiplicity. I'll plow through it next week and note anything significant that I find.

The Spring 2009 issue of the Reporter, available here, includes Maj Brian Thompson's argument against eliminating the members sentencing option. Maj Brian M. Thompson, Judge-Only Sentencing: Judicial Power Grab?, Reporter, Spring 2009, at 12.

The issue also includes a "Military Justice Pointer," noting that neither the DOD nor Air Force regulations governing sex offender registry have been amended to reflect the revisions to Article 120. Lt Col Eric Mejia, Art 120 and the Sex Offender Registry, Reporter, Spring 2009, at 17. The article notes that "DODI 1325.7 and AFI 51-201 are in the process of being amended." Id.

The issue also includes a case note on the United States v. Murphy court-martial and appeal. Lt Col Beth A. Townsend, Military Rule of Evidence 505(i): Defining the "Interests of Justice," Reporter, Spring 2009, at 19. The article is accompanying by a sidebar reporting the results of the Murphy trial. Id. at 21. [DISCLAIMER: I was an appellate defense counsel in the Murphy case.]

The issue also includes a piece by the Air Force's Chief Appellate Government Counsel using NMCCA's unpublished decision in United States v. Wilson, No. NMCCA 200102056 (N-M. Ct. Crim. App. Feb. 7, 2006), as a cautionary tale demonstrating the need for meticulously accurate convening authority's actions. Maj Jeremy S. Weber, Convening Authority Actions: Why It's More Important than Ever to Get Them Right, Reporter, Spring 2009, at 22.

Finally, whose picture is that on page 34 of the Reporter?

Friday, June 12, 2009

A quick follow-up to Weston

In the comments to our post about CAAF's Weston opinion, there have been several negative reactions to the notion advanced by Chief Judge Effron's concurrence that the inevitable discovery doctrine can apply based on the existence of probable cause even without a showing that law enforcement agents were actively attempting to obtain a search authorization. Remember that CAAF decided that very issue last term in United States v. Wallace, 66 M.J. 5 (C.A.A.F. 2008). Judge Stucky wrote for the majority, which found that the accused's consent to seize his computer wasn't voluntary. But the majority proceeded to uphold the seizure and subsequent search under the inevitable discovery doctrine even though the record contained no evidence that the OSI agents ever attempted to obtain a search warrant. In a concurrence, Judge Baker disagreed with the majority's approach to inevitable discovery, but voted to uphold the seizure on the basis that consent had been voluntary. In her concurrence, Judge Ryan declined to take a position on inevitable discovery because she agreed with Judge Baker that the accused's consent to seize his computer was voluntary.

My former colleague Vicki Belleau and I filed a cert petition, noting a deep split among the circuits over whether an "active pursuit" requirement exists to uphold a seizure under the inevitable discovery doctrine. Four circuit courts had adopted such a requirement while five (plus CAAF) had rejected it. See generally Eugene L. Shapiro, Active Pursuit, Inevitable Discovery, and the Federal Circuits: The Search for Manageable Limitations Upon an Expansive Doctrine, 39 GONZ. L. REV. 295, 296 (2003/2004). Despite this significant circuit split, the Supremes denied cert. Wallace v. United States, 128 S. Ct. 2943 (2008).

H.R. 569 hearing highlights

Yesterday's hearing on H.R. 569, the Equal Justice for Our Military Act, was what civics books teach us the legislative process should be like. We were in the House Judiciary Committee's hearing room, a majestic forum with a soaring ceiling, an enormous depiction of an eagle dominating one wall, and an imposing dais separating the subcommittee's members and counsel from the witnesses. But despite the very formal surroundings and the different roles of the various participants, the hearing had the feel of a small group of lawyers reasoning together in search of a just result. The experience called to mind Isaiah 1:18.

During his opening remarks, Chairman Hank Johnson (D-Ga.) noted that no witness for the Administration would appear at the hearing, though a DOD witness had been scheduled to testify before the hearing date was rescheduled. Chairman Johnson observed, "[W]hile I was initially disappointed that the Administration was not able to send a witness, I take it as a sign that the Obama Administration is taking a hard look at the legislation and will ultimately take a different position regarding the legislation than the previous Administration." (DOD had opposed an identical bill during the last Congress.)

During his opening remarks, Ranking Member Howard Coble (R-N.C.) followed up on Chairman Johnson's comments about the absence of any witness to provide the Administration's views: "[I]t's regrettable . . . that while today's hearing marks the first real legislative review of this legislation, the Administration has refused to send a witness to testify, and I think this is a mistake." He then added, in a humorous manner, that "it appears to me that the Administration has chosen to go AWOL on this matter today." Then, not so humorously, Rep. Coble added, "This marks the second time in 90 days that the Administration has been missing in action before this subcommittee, in a hearing where members are reviewing proposals that relate directly to our servicemembers." (I assume that the previous occasion he was referring to was a hearing on H.R. 1478, the Carmelo Rodriguez Military Medical Accountability Act of 2009.) Resuming his jocular tone, he continued that General Altenburg and I "can probably tell us the range of penalties the UCMJ prescribes for failure to report for duty, if you'll pardon my inserting a little humor in this. But unfortunately, the civilian employees of the Office of Management and Budget and the Department of Justice are not subject to the UCMJ's disciplinary provisions." Then again becoming serious, he concluded, "[W]e need to insist that the Administration does, in fact, take seriously its obligation to respond to our requests for information. This is particularly true when matters before this subcommittee and the full committee, for that matter, directly impact the rights of servicemembers, their resources and requirements of our armed services, and the administration of our judicial system."

One of the key issues at the hearing was what the bill was likely to cost. Responding to a question from Chairman Johnson, I expressed the view that under the bill, there wouldn't be a large increase in the number of cert petitions filed by counsel as opposed to those filed pro se. I noted that even if the number of cert petitions filed by counsel doubled under the bill, the increased printing costs would likely be only around $15,000. General Altenburg expressed concern that Congress should scrutinize how the bill would affect the various services' JAG Corps, which are already "stretched quite a bit based on the contingencies that we address around the world, both combat and otherwise."

Responding to another question from the Chairman, General Altenburg and I agreed that, in General Altenburg's words, "a collateral attack is not a substitute for a direct petition to the Supreme Court." But, General Altenburg added, the percentage of cert petitions that actually result in a grant on direct appeal is extremely small.

In response to a question from Ranking Member Coble, General Altenburg emphasized that he didn't think the bill's passage would harm good order and discipline: "I dissociate myself with anyone who has stated that to give this right to soldiers, to military people would, in some way, undermine discipline or undermine authority or lower discipline or harm the military. I don't believe any of those things. . . . It would in no way harm the military. My sole concern is the lawyer resource issue. That's my sole concern, and the fact that we don't really know what it's going to take and how many people are going to take advantage of this."

An interesting exchange between Ranking Member Coble and General Altenburg followed. Rep. Coble asked General Altenburg to respond to what Rep. Coble characterized as the "powerful equitable argument" that "it is inappropriate to deprive members of the U.S. military of the same right to Supreme Court access that their civilian counterparts and even alien unlawful enemy combatants enjoy." General Altenburg, who previously served as the Appointing Authority for the Military Commissions system, responded that it was necessary to provide Supreme Court review of commission cases because the commission system "wasn't done very well in terms of the way it was conceived" and the commission system remains "immature." Supreme Court review in the regular military justice system, on the other hand, was less important becuase "our appellate system in the military is very well developed and has matured over the years."

Ranking Member Coble ended his questions by asking General Altenburg what suggestions he would offer to make a system like that proposed by H.R. 569 work. General Altenburg replied by emphasizing that Congress should "make sure that the services have the resources to do this." He added, "If that issue was addressed, if we were able to discern rather than guess, but to discern this is what the likely costs are in terms of resources, and the Congress were to approve those resources, I don't have an objection. I think it would work."

Chairman Johnson then recognized Rep. Charlie Gonzalez (D-Tex.). Rep. Gonzalez emphasized that under current law, the two parties to a court-martial have disparate access to the Supreme Court. The United States can open the door to the Supreme Court through a certificate of review filed by a Judge Advocate General at CAAF. But in a non-capital case, the accused generally must convince CAAF to exercise its discretionary review authority for the case to become eligible for Supreme Court review. Rep. Gonzalez observed that one of the two parties has "an inferior right . . . as far as seeking Supreme Court review." He continued, "[W}hen it's all said and done, what is available to one party is not available to the other, and I think that's what causes us the discomfort and . . . that's what this act would balance and bring a more just result to the whole process."

And with that, the hearing ended, followed by cordial exchanges between the witnesses and the subcommittee's members and staff.

We probably all feel cynical about our system of government at times. This hearing was a cure for such cynicism. Regardless of whether H.R. 569 or some amended version of the bill ultimately becomes law, the bill's sponsor and a congressional subcommittee devoted a substantial amount of time before during and after the hearing to try to promote justice in a prudent manner. They devoted this time to make sure that our nation's servicemembers are treated fairly. The hearing didn't attract crowds; the expansive seating area was almost empty. But these Members of Congress and their staff members weren't there to showboat; they were there to see whether the law could be improved. Chief Justice Marshall famously wrote that the United States has "a government of laws, and not of men." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803). It was uplifting to see honorable men and women at work drafting those laws.

New CGCCA opinion on failure to pay just debts

The Coast Guard Court released a divided opinion today dealing with failure to pay just debts. United States v. Lindsey, No. 1295 (C.G. Ct. Crim. App. June 12, 2009). The opinion isn't yet on the court's web site, so I've posted it here. I can't tell for sure, but I assume that it's a published decision.

Writing for herself and Judge Lodge, Chief Judge McClelland holds that to establish the offense of failure to pay just debts, the dishonorable conduct constituting the offense must occur after the debt becomes due and payable. Because the providence inquiry in Petty Officer Lindsey's case didn't establish such dishonorable conduct after his unauthorized government credit card debt became due and payable, the majority set aside the conviction despite the accused's guilty plea.

The majority analyzes the issue through hypothetical scenarios:

A person buys a car on credit, then incurs another debt knowing that current income, expenses and car payment will make it impossible to repay the new debt as scheduled. The debtor's plan is to complain of imaginary defects in the car and stop paying on the car loan for as long as possible without having the car repossessed, then recommence paying on the car loan and stop paying on the new debt, and continue to temporize, not meeting both debt obligations. The debtor implements the plan by falsely complaining about the car, but before the next payment is due, has a change of heart, sells the car and pays off the loan. The false complaint might have supported a charge of dishonorable failure to pay a debt if, in fact, the debtor had failed to make the payment when due and continued the scheme. However, because of the course change, the offense was not committed. Now consider the same hypothetical, but when the debtor sells the car, the proceeds are insufficient to fully repay the car loan, and the debtor does fail to pay the debt in full when due. Surely some further dishonorable conduct is required before the debtor may be found guilty of dishonorable failure to pay a debt.
The majority concluded: "In our view, dishonorableness occurring wholly before the debt is due should not be enough to criminalize nonpayment of a debt." Rather, "unconscionable delay, or some other fact supporting a finding of dishonorableness after payment was due, is essential." While the majority set aside this finding of guilty, it nevertheless affirmed the sentence, reasoning that evidence of the failure to pay just debt would have constituted proper aggravation to the affirmed conviction of violating an order concerning proper use of his government credit card.

Judge Kenney dissented from the portion of the majority's opinion setting aside the dishonorable failure to pay just debts conviction. Contrary to the majority, Judge Kenney concludes "that dishonorable conduct committed solely prior to the debt becoming due and payable can transform subsequent inaction or indifference into conduct fulfilling the elements of the offense." In support of this view, Judge Kenney offers "a slight variation of the hypothetical posed by the majority": "a failure to pay after the debt is due and payable would be dishonorable if the evidence reveals that the accused had no intention of ever paying the debt at the time the obligation was incurred, or prior to the debt becoming due, through deceit, evasion, false promises, or other distinctly culpable circumstances, created a situation that made it impossible for the accused to pay."