tag:blogger.com,1999:blog-34853720.post241421577982901733..comments2023-08-24T10:39:23.460-04:00Comments on CAAFlog: Thinking about the Wilson remedyDwight Sullivanhttp://www.blogger.com/profile/11657981110237418710noreply@blogger.comBlogger30125tag:blogger.com,1999:blog-34853720.post-19682496501744323972009-06-22T17:51:54.652-04:002009-06-22T17:51:54.652-04:00Major Vorhees:
Good first post. I just see a dif...Major Vorhees:<br /><br />Good first post. I just see a difference between seeking a clarification and "expos[ing] judges to cross examination in a subsequent hearing about their deliberative process."<br /><br />I don't think there would be cross-examination at all. The MJ clarifies what incident she convicted the accused of, and then the evidence either does, or does not, support such a conviction under an Article 66 review. That clarification can't be impeached, it is reviewed. If the MJ can't remember which incident she meant, then no meaningful Article 66 review can be had.<br /><br />I largely agree with your point about sloppiness in the military justice system. I think a lot of CAAF decisions in the last 3-4 years can be attributed to exasperation at a perceived lack of due care in trial court proceedings and appellate processing (appellate delay, ambiguous or erroneous CA actions, variance case law, etc.). One can argue whether some of these decisions exceed the proper role of a reviewing court, but I think there's little question that the CAAF has been motivated by a desire to increase the professionalism of military justice practice.John O'Connorhttps://www.blogger.com/profile/08014476389355562158noreply@blogger.comtag:blogger.com,1999:blog-34853720.post-50430572420033535142009-06-22T16:56:22.288-04:002009-06-22T16:56:22.288-04:00This is my first post on CAAFlog, but, as an Army ...This is my first post on CAAFlog, but, as an Army appellate defender, I think its important to realize the implications of a remedy that would expose judges to cross examination in a subsequent hearing about their deliberative process.<br /><br />Matthews, argued by Mr. Partington, should be decided soon regarding a similar proposal. There's a certain sacrosanctity of judicial function--we review it for being right or wrong, we overturn and remand or we affirm, but we don't crack it open and squeeze it to get the result we want. <br /><br />As appellate defenders, we're "gettin' after" sloppyness in the military justice system. Rulings like Miller (enumerated offenses no longer pregnant with residual 134 specs), Gardenier ("most probative" evidence turns out inadmissible; can't be harmless beyond a reasonable doubt), and Marshall (variances can't save really bad charging), should be sending a message that slop isn't going to play in military justice anymore. The government, and judges, need to start calling the pocket. <br /><br />These kinds of rulings ascribe a legitimacy to military justice; this isn't a junior varsity legal process. Get it right or we're all going home after court.<br /><br />MAJ Brad VoorheesAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-34853720.post-16072456102559802302009-06-22T14:42:29.494-04:002009-06-22T14:42:29.494-04:00I think we are getting our metaphors mixed up betw...I think we are getting our metaphors mixed up between 800lbs gorilla and pink elephants.<br /><br />DP your points are well taken. Colorado may have killed any chance at justice.Cossiohttps://www.blogger.com/profile/14096670749657701418noreply@blogger.comtag:blogger.com,1999:blog-34853720.post-64600796341135921332009-06-22T14:26:35.294-04:002009-06-22T14:26:35.294-04:00So you're saying that Colorado may have closed...So you're saying that Colorado may have closed the barn door after the 800-lb pink elephant was already in the bush.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-34853720.post-29594841738017829722009-06-22T14:00:08.077-04:002009-06-22T14:00:08.077-04:00Cossio,
There is no "Pink Elephant" h...Cossio,<br /> There is no "Pink Elephant" here. Not all states follow the "dual sovereign" fiction - some states because of statute, others due to their own Constitution. But, my point wasn't addressed to that - it was addressed to why the case could not be sent back to the MJ for "clarification" under Double Jeopardy principles.<br /><br />Furthermore, the State very well may have waived any right to prosecute it had, years ago, assuming that it had concurrent jurisdiction in the first place. And, that's assuming that Colorado's Statute of Limitations hasn't run. And then there's the State Speedy Trial considerations.<br /><br />That's an issue that the current SJA needs to address.Dew_Processhttps://www.blogger.com/profile/12952551772411097184noreply@blogger.comtag:blogger.com,1999:blog-34853720.post-18768326721115723342009-06-22T13:43:35.139-04:002009-06-22T13:43:35.139-04:00Thanks Cossio, this blog is interesting to read, a...Thanks Cossio, this blog is interesting to read, and I have a lot of time at work to read it, but for most of us it's a hypothetical discussion of "wouldn't the military justice be better if..."<br /><br />I'll give you credit though for intellectual integrity, I would have thought that you would have understandably taken the opposite position. On an intuitative level it does seem kind of unfair to try someone twice just because the gov't didn't get it right the first time.<br /><br />Thanks again! <br /><br />Actually, now that I think of it, in this economy, I really should be more productive at work, either that or spend my excess time brushing up my resume!Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-34853720.post-5976087057564329422009-06-22T12:57:48.353-04:002009-06-22T12:57:48.353-04:00"gathering from this case its safe to assume ..."gathering from this case its safe to assume that the level of competence is unsat. If you are comfortable that you assume civilian authorities are being made aware of whats going on, then fine. Just remember when you assume you make an Ass out of U and Me."<br /><br />What I am comfortable with is that the military trial counsels are being/will be made aware and that the victim and her family are being/will be made aware.<br /><br />What happens after that is for the latter to decide. It is certainly good that you've decided not to intercede.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-34853720.post-68436392699595464532009-06-22T12:25:56.982-04:002009-06-22T12:25:56.982-04:00Anon 1151,
Your logical bar-hopping is amusing, b...Anon 1151,<br /><br />Your logical bar-hopping is amusing, but at the same time infuriating.<br /><br />Rather than point out the obvious hypocrisy of whether a citizen should intercede or not, let's get a couple of things straight.<br /><br />1.) We don't know what Government Counsel will do, and gathering from this case its safe to assume that the level of competence is unsat. If you are comfortable that you assume civilian authorities are being made aware of whats going on, then fine. Just remember when you assume you make an Ass out of U and Me.<br /><br />2.) What we can be certain though is people choose to "intercede" then we will know for sure at least someone got the information.<br /><br />3.) I was answering DP's statement on double jeopardy. I was merely saying that the State could prosecute no matter what happened at the federal level so cases on Yeager, etc are irrelevant.<br /><br />Nice Straw-Man Anon, but you have things a little mixed up.<br /><br />I have decided not to call anyone, out of respect for Mr. Wright's concerns.Cossiohttps://www.blogger.com/profile/14096670749657701418noreply@blogger.comtag:blogger.com,1999:blog-34853720.post-79832801496653906452009-06-22T12:10:52.973-04:002009-06-22T12:10:52.973-04:00CAAF has granted on another Walters-type case, Uni...CAAF has granted on another Walters-type case, United States v. Ross, No. 09-0242/MC, NMCCA 200800313.<br /><br />NMCCA found that the military judge's findings were not ambiguous because possession was charged, and the evidence showed continuous possession during the date range in the charge. Therefore it was appropriate to except the "divers occasions" language.Cloudesley Shovellhttps://www.blogger.com/profile/13344314546798687667noreply@blogger.comtag:blogger.com,1999:blog-34853720.post-92013941998617789062009-06-22T11:51:50.084-04:002009-06-22T11:51:50.084-04:00No, the point is that it is not your place to inte...No, the point is that it is not your place to intercede.<br /><br />The government counsel will no doubt learn of this, and in consultation with the family will decide what to do next.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-34853720.post-69004435527002058542009-06-22T08:57:40.309-04:002009-06-22T08:57:40.309-04:00DP,
I understand that Yeager in many ways is an...DP, <br /><br />I understand that <a href="http://www.supremecourtus.gov/opinions/08pdf/08-67.pdf" rel="nofollow"> Yeager</a> in many ways is analogous to this case.<br /><br />However, you are missing the Pink Elephant known as the <b>'separate sovereigns' exception</b>.<br /><br />It means that it doesn't matter that he was aquitted, found guilty, or had his appeals overturned in one jurisdiction.<br /><br />Another Jurisdiction can try him regardless of actions from another, as if he was never tried.<br /><br />The Military is famously bad for doing this. There are a great many of men found innocent or given mistrials in the State court and found guilty in a Courts-Martial. Heck, even found guilty in one and given another guilty verdict in another.<br /><br />The point is the process can work the other way.Cossiohttps://www.blogger.com/profile/14096670749657701418noreply@blogger.comtag:blogger.com,1999:blog-34853720.post-22097672097205946792009-06-22T02:17:22.430-04:002009-06-22T02:17:22.430-04:00Factual insufficiency has LONG triggered Double Je...Factual insufficiency has LONG triggered Double Jeopardy protection. The prosecution gets "one fair opportunity" to convict an accused, not multiple ones.<br /><br />SCOTUS reaffirmed that concept just last week in <i>Yeager.</i><br /><br />This is simply a classic <b><i>Burks</i></b> issue that has been the law for many, many years - its just that the Military Justice system was slow to catch on. I addressed this in the prior thread discussing this case.<br /><br />The "injustice" here is not that the legal system is either broken or somehow didn't work - it did work properly. The injustice is that the victim did not get justice because the Trial Counsel and MJ screwed up.<br /><br />Red Flags should have gone up when the MJ had to dismiss other Specs due to statute of limitation violations.Dew_Processhttps://www.blogger.com/profile/12952551772411097184noreply@blogger.comtag:blogger.com,1999:blog-34853720.post-46546079304808810732009-06-21T21:48:12.792-04:002009-06-21T21:48:12.792-04:00I'm with Dwight on this one (egad).I'm with Dwight on this one (egad).John O'Connorhttps://www.blogger.com/profile/08014476389355562158noreply@blogger.comtag:blogger.com,1999:blog-34853720.post-55364303816760430282009-06-21T15:51:39.973-04:002009-06-21T15:51:39.973-04:00Yes, but how do we know if the civil authorities, ...Yes, but how do we know if the civil authorities, and even the victim have this information?<br /><br />It's not like I'm going to pit on my Batman costume (actually Darkwing Duck) and fly overthere.Cossiohttps://www.blogger.com/profile/14096670749657701418noreply@blogger.comtag:blogger.com,1999:blog-34853720.post-65966843058452047872009-06-21T14:47:10.822-04:002009-06-21T14:47:10.822-04:00Hold on Cossio, this is a discussion blog, not an ...Hold on Cossio, this is a discussion blog, not an action blog. Let the proper authorities take care of it. They know the details and can get input from the victim. Nothing I said was meant as legal advice or call for action. I was just using this case to make a general point that civillian type crimes should be turned over to civillian prosecution instead of having the military prosecute the case. It could save the DOD some resources and get the person out of the unit faster hopefully.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-34853720.post-47538704766541762802009-06-21T14:15:12.004-04:002009-06-21T14:15:12.004-04:00Pete,
I think we are reading from the same playbo...Pete,<br /><br />I think we are reading from the same playbook in regards to turning this over to civil authorities.<br /><br />If these crimes happened on base, I would hope the base has concurrent jurisdiction so this guy can get hit hard.<br /><br />Of course it would suck that the victim would have to testify again, but as you pointed out a plea may resolve that. Most State Attorneys are relunctant to do anything without a formal complaint from the victim. <br /><br />I'll make some phone calls tomarrow and see if I can't get the ball rolling. I'll keep you guys updated.Cossiohttps://www.blogger.com/profile/14096670749657701418noreply@blogger.comtag:blogger.com,1999:blog-34853720.post-32545640098689413362009-06-21T12:00:47.664-04:002009-06-21T12:00:47.664-04:00This comment has been removed by the author.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-34853720.post-26952456883090306132009-06-20T22:50:55.391-04:002009-06-20T22:50:55.391-04:00Anon 1105, the addage attributed to Blackstone:
&...Anon 1105, the addage attributed to Blackstone:<br /><br />"...the law holds that it is better that ten guilty persons escape, than that one innocent suffer."<br /><br />Is under the premis that we do not know who is really guilty v. who is innocent.<br /><br />We know for a fact this man is guilty.<br /><br />Second, I believe you demoted a COL to LTC, which in any service would get your @$$ chewed out as there is a BIG difference between a light and a full bird Col.Cossiohttps://www.blogger.com/profile/14096670749657701418noreply@blogger.comtag:blogger.com,1999:blog-34853720.post-11820751171857606462009-06-20T12:39:39.705-04:002009-06-20T12:39:39.705-04:00D.B., and I've always been an admirer of your ...D.B., and I've always been an admirer of your high-altitude parachuting skills.<br /><br />As I said in my post, I've never been a fan of the Walters/Seider line of cases. I just didn't happen to have a blog when Walters came out. :-)<br /><br />But with regard to the narrow issue of remedy that I've been addressing, I think Walters, Seider, and Augspurger got it right -- there is no practical way to find out what the basis was for members' decision. So if the Wilson fact pattern had played out in a members case, I wouldn't have raised the issue or suggested another look at the remedy. What seems to have happened is that Scheurer applied the Walters/Seider remedy without considering that it isn't necessarily transferable to a military judge alone context. If GAD were to file a reconsideration petition, that might lead CAAF to consider whether the remedy for a Walters violation in a judge-alone case should or shouldn't be the same as in a members case.<br /><br />Is the issue presented more starkly because of the seriousness of the offense at issue? Sure. But I'm really not arguing that we should change the law to prevent this bad guy from getting away with it. I'm arguing that we should change the law because the current legal rule as to the Walters remedy in a judge-alone case is unwise and appears to have been initially adopted without much thought. This case serves as an example of why the current rule is undesirable.<br /><br />Throughout the history of both U.S. civilian and military criminal law, changes to provide greater rights for the defendant have been driven by death penalty cases. Courts have often provided additional protections in a death penalty context and those protections were later applied in non-death penalty contexts as well. Ake v. Oklahoma is a great example. Would Ake have come out the same way if the case had been about possession of marijuana? It probably wouldn't have even reached the Supreme Court. But in Ake, the need to get it right was great because the stakes are great.<br /><br />Here, too, the need to get it right is great because the stakes are great. But I'm certainly not suggesting that we bend the law to reach a desired result. Rather, I think that allowing remand as a remedy for a Walters violation in a judge-alone case is a desirable change across the board that should be applied in this case as well.Dwight Sullivanhttps://www.blogger.com/profile/11657981110237418710noreply@blogger.comtag:blogger.com,1999:blog-34853720.post-40200495339989294202009-06-20T12:13:42.129-04:002009-06-20T12:13:42.129-04:00"I do have one question – purely out of curio..."I do have one question – purely out of curiosity: can SSG Wilson face state prosecution for these offenses?"<br /><br />Sure, if the state's SOL for these offenses hasn't run, and these days, you'd expect that the SOL is pretty long for child rape.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-34853720.post-51010384722799546902009-06-20T12:11:44.901-04:002009-06-20T12:11:44.901-04:00R.C.M. 1102(d) (and US v. Webb, 66 MJ 89):
“The m...R.C.M. 1102(d) (and US v. Webb, 66 MJ 89):<br /><br />“The military judge may direct a post-trial session any time before the record is authenticated.” <br /><br />So first dont we have a situation where that has long since passed?<br /><br />"1102(c) Matters not subject to post-trial sessions. Posttrial<br />session may not be directed:<br />(1) For reconsideration of a finding of not guilty<br />of any specification, or a ruling which amounts to a<br />finding of not guilty;"<br /><br />Again, isn't that the point here? We have a not guilty, we dont know which one it is, and we cant be sure the judge does either.<br /><br />Isn't the point of 1102 to allow the judge to correct SOME errors that are raised to him/her immediately following the trial, not a year or more later?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-34853720.post-21293425868804171432009-06-20T12:06:58.325-04:002009-06-20T12:06:58.325-04:00I must respectfully part ways with COL Sullivan on...I must respectfully part ways with COL Sullivan on this. <br /><br />Walters, Seider, and Augspurger (to the best of my recollection) were all victimless drug cases. No one lost any sleep when a guilty drug user/dealer got over in those cases. Further, they were cases where a few charges still remained even after CAAF’s holding. So the appellants were probably still saddled with their punitive discharges, even after sentence review at the CCA. <br /><br />Accordingly, none of those cases were as controversial, even though the legal reasoning was the same.<br /> <br />What makes Wilson controversial is not the underlying law, but the result. Someone one who repeatedly raped and molested a little girl undid his conviction with a mere technicality, except for the Art 107 offense.<br /><br />I admire and respect COL Sullivan so much. But I really have to ask – did Walters, Seider, and Augspurger draw your ire as much as Wilson has? <br /> <br />Judge Crawford warned of Wilson’s result in her original dissent to Walters. She pointed out that “divers occasions” charging was not limited to trifling drug offenses, but also applied to grotesque sex offenses as well. So we cannot say that this result came purely out of left-field. CAAF knew it could happen when they penned Walters and its progeny. <br /> <br />Further, Walters should have been a one-hit wonder. No competent MJ or TC should have let a Walters error occur ever again after that case came out. They are mind-numbingly easy to spot. But these errors kept occurring nevertheless. The trial judiciary and the TCs of the world needed a kick in the butt. And Wilson was it. <br /><br />I do have one question – purely out of curiosity: can SSG Wilson face state prosecution for these offenses?DB Coopernoreply@blogger.comtag:blogger.com,1999:blog-34853720.post-63842480994472952992009-06-20T11:46:26.361-04:002009-06-20T11:46:26.361-04:00Anon 1105, the Rules already do provide a mechanis...Anon 1105, the Rules already do provide a mechanism for the military judge to clarify the ruling -- R.C.M. 1102. I suggested a remand for another look under that very rule. Also, the whole Walters/Seider line of cases and the remedy provided is judge-made law. That doesn't make it illegitimate, since it's an interpretation of Article 66 and interpreting statutes is what courts do. But surely it can't be right to say that CAAF initially came up with the remedy for a Walters/Seider violation, but only the President or Congress can change that remedy. <br /><br />Of course, it may be that Judge Wright doesn't remember the basis for her ruling. If that's the case, I trust her to say so. The possibility that she might not remember doesn't seem like a good reason not to even ask her if she remembers.<br /><br />Finally, here the choice isn't between an innocent person being convicted or a guilty person going free. The law shouldn't gratuitously free guilty people. That causes the public to be cynical about the law -- which is one of the many reasons why I oppose the judge-made Fourth Amendment exclusionary rule. And that's one of many reasons why it would be useful to explore the possibility of alternative remedies in this case.Dwight Sullivanhttps://www.blogger.com/profile/11657981110237418710noreply@blogger.comtag:blogger.com,1999:blog-34853720.post-25301015674570488892009-06-20T11:05:23.805-04:002009-06-20T11:05:23.805-04:00As trite as it is, better a guilty man go free tha...As trite as it is, better a guilty man go free than an innocent man go in jail is still a foundation of our criminal justice philosophy.<br /><br />If LTC Sullivan or anyone else can come up with a reasonable approach that will work in every situation without jeopardizing someone else in a not so clear (and this isn't necessarily clear either) case of a guilty person, then let's hear it.<br /><br />But I haven't seen it yet, and send it back to the judge a year or more later to see if she can remember what her original thinking was on a case when she's probably done 100 before and 20 since is not such an approach.<br /><br />The law is clear, and if a change is to be made, it is not by the judiciary but by the branch that writes up the rules. They could easily re-write the rules such that a judge can reconsider her decision after closing of the court.<br /><br />I really don't think we want to open that Pandora's Box for the very rare situation presented by this case just so one child rapist doesn't go free, but there are legal solutions other than the judiciary deciding a law is too favorable to a guilty accused and ignoring it to reach the "right" result.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-34853720.post-56474695365154838512009-06-20T08:42:58.252-04:002009-06-20T08:42:58.252-04:00Anon 0616 -- yes, we see a call for the law to cha...Anon 0616 -- yes, we see a call for the law to change because someone we KNOW to be guilty goes free. Generally, the law should strive to convict guilty people and free innocent people. If the law sets a guilty person free, then there is good reason to question that law, as I did in this post. Sometimes despite such questioning, we might decide that there's a greater societal interest that warrants the guilty person going free. Privileges are often based on such a determination -- as are exclusionary rules. But to suggest that we should simply apply the law and not even question whether that law is wise when it sets a guilty person free would appear to place stability of the law ahead of ALL other interests -- including the interest of justice, which is generally served when guilt and innocence are distributed in accord with who is factually guilty and who is factually innocent.<br /><br />I really hope that CAAF takes another look at this. Even if it comes up with the same answer, I think it should at least ask the question whether alternative remedies are available and, if so, whether such an alternative remedy is preferable to the one CAAF ordered in this case.Dwight Sullivanhttps://www.blogger.com/profile/11657981110237418710noreply@blogger.com