Cert denied in Rose

The Supreme Court today denied cert in Rose v. United States, the cert petition seeking review of CAAF's decision upholding a conviction for refusing to submit to the anthrax vaccine.

Moreno effect, Think of Wave Theory

In Economics class we learned about the Ellliot Wave Theory of stock market prices. See generally here (God bless Wikipedia, they have a page for everything). Essentially the theory is that a bull market (or crash) is caused by a series of increasingly larger waves, with corrective action after each up (or down) wave. In this case the initial impulse would have been Diaz. In the case of Moreno the real question is whether Moreno represents the second wave, with the crash right around the corner(e.g. crash = no one cares about post-trial delay any longer), or is Moreno a wave within a larger wave that has yet to crest?

If I was a gambling man, which one who relies on Elliott's theory to buy long and sell short has to be, I would say that Moreno and any perceived change at ACCA is just the crest of a small wave (motive wave 5 to Elliott) in a larger wave. The trend appears to not have had a real effect on convening authorities and their speed of processing the cases that have made it to and through the CCAs (these cases are all still a year old or more so there is a time lag). Once the large, institutional CA's make real changes in their processing goals and procedures, resulting in actual changes in overall processing time, we will see the crest of the post-trial delay wave. From what I can tell, that has not occurred in all the services--esp. the Marine Corps who still appear to be cleaning out their closets.

Thoughts?

A Moreno effect? (part deux)

Here in the National Capital Region, our weather continues to be influenced by the El Nino effect. Last month, I asked whether the CCAs' behavior would be influenced by a Moreno effect. See "Moreno effect?," CAAFlog, 2 Dec 2006. Would the CCAs issue fewer published opinions in an effort to pump out cases more quickly to avoid CAAF's wrath?

We have since seen that NMCCA doesn't seem to care about CAAF's wrath. See "New published Navy-Marine Corps case: the Battle of New Orleans part deux," CAAFlog, 31 Dec 2007; "Redeux," CAAFlog, 5 Jan 2007.

Let's go back to the numbers and see what they tell us about the first three months of what will be the first complete fiscal year under Moreno. Looking at the last five years, the CCAs have collectively issued fewer published opinions this year than during the comparable period in the previous years, though not by much. (For purposes of calculating the numbers, I excluded United States v. Orzechowski, NMCCA No. 200300711, 2006 CCA LEXIS 307 (N-M. Ct. Crim. App. Nov. 15, 2006), a decision that NMCCA issued on 21 September 2006 and then ordered published on 15 November 2006. See generally "NMCCA publishes previous order granting extraordinary relief," CAAFlog, 6 Dec 2006. Since the heavy lifting was done during FY 06, I will treat it as a September 2006 opinion rather than a November 2006 opinion.)

Here are the numbers of published opinions issued by all of the CCAs combined during October, November, and December over the last five years:

FY 07: 12
FY 06: 18
FY 05: 13
FY 04: 14
FY 03: 19

It may be appropriate to throw out CGCCA's numbers, since that court is so atypical. With its microscopic docket, it is unlikely to feel a Moreno effect because it simply has no backlog. And it also publishes a disproportionate share of its opinions compared to the other courts -- probably because it has more time to work on each opinion, which is consistent with the Moreno effect hypothesis. But if we throw out the CGCCA numbers, the overall pattern changes very little:

FY 07: 10
FY 06: 13
FY 05: 11
FY 04: 11
FY 03: 16

Most striking is ACCA's behavior. In FY 07 (post-Moreno), NMCCA issued more published opinions in October through December (4) than it did in FY 04 (pre-Moreno) (2). AFCCA issued more this fiscal year (5) than in any of the previous four years (4, 3, 3, 2). CGCCA issued the same number this fiscal year (2) as in FY 05.

Now look at ACCA: 1 published case during FY 07, compared to 3, 3, 6, and 5 for the comparable periods during the previous four fiscal years.

Let's compare the FY 07 output of each CCA with its AVERAGE output over the comparable period during the previous four fiscal years:

------------FY 07 ------FY 03-06 Oct-Dec average------- Difference
AFCCA: ---5 -----------3---------------------------------- +2
ACCA: ----1 -----------4.25 --------------------------------3.25
NMCCA: --4 -----------5.5 ---------------------------------1.25
CGCCA: --2 -----------3.25 --------------------------------1.25

[Blogger doesn't seem to do well with charts -- or I haven't yet figured out how to make blogger show a chart correctly. I hope you can figure out what I'm trying to say here.]

Obviously if there is a Moreno effect, it is concentrated at the Army Court. Of course, we can't draw any firm conclusions when dealing with numbers this small and periods of time this short. Maybe for some reason ACCA has been stockpiling to-be-published opinions and will issue a slew of them this month. CAAFlog will continue to follow these trends to see if any definitive pattern emerges over time.

--Dwight Sullivan

This week at CAAF

The new five-judge CAAF will make its debut on Monday morning at 0900 when it hears oral argument in United States v. Taylor, No. 06-0319/MC.

CAAF will hear a total of five oral arguments this week, three in naval cases (all Marine Corps) and two in Air Force cases. The Army will have to wait until 17 January to be grilled by the new judges.

Here are the issues in the five cases to be heard this week.

MONDAY:

No. 06-0319/MC. U.S. v. Jason L. TAYLOR. CCA 200202366.

WHETHER THE LOWER COURT ERRED WHEN IT HELD THAT APPELLANT COULD NOT ASSERT THE HUSBAND-WIFE PRIVILEGE OVER CONFIDENTIAL MARITAL COMMUNICATIONS BECAUSE ADULTERY IS A CRIME AGAINST THE SPOUSE FOR PURPOSES OF M.R.E. 504(c)(2)(A).

No. 06-0403/MC. U.S. v. Damien B. SHAW. CCA 200300312.

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY FAILING TO INQUIRE INTO THE EFFECT THAT APPELLANT'S MEDICAL PROBLEMS HAD ON HIS ABILITY TO APPRECIATE THE NATURE AND QUALITY OR THE WRONGFULNESS OF HIS ACTS.

TUESDAY:

No. 06-0615/AF. U.S. v. Patrick M. LEONARD, Jr. CCA 35740.

I. WHETHER THE MILITARY JUDGE ERRED IN CALCULATING THE MAXIMUM PUNISHMENT AND, IF SO, WHETHER APPELLANT'S PLEA WAS IMPROVIDENT BECAUSE IT WAS BASED UPON A SUBSTANTIAL MISUNDERSTANDING OF THE MAXIMUM PUNISHMENT.

II. WHETHER APPELLANT'S TRIAL DEFENSE COUNSEL MISAPPREHENDED THE MAXIMUM PUNISHMENT AND, IF SO, WHETHER APPELLANT WAS DEPRIVED OF HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE DEFENSE COUNSEL'S ADVICE WAS BASED UPON AN ERRONEOUS CALCULATION OF THE MAXIMUM PUNISHMENT.

No. 06-0714/AF. U.S. v. Heidi F. ADCOCK. CCA 36018.

WHETHER, HAVING FOUND THAT THE TERMS OF APPELLANT'S PRETRIAL CONFINEMENT VIOLATED AIR FORCE INSTRUCTION (AFI) 31-205, AND THE AIR FORCE CORRECTIONS SYSTEM PARAS. 5.8.1.2 AND 7.1.1 (7 APRIL 2004), THE MILITARY JUDGE ERRED IN NOT DETERMINING THAT THE VIOLATION "INVOLVE[D] AN ABUSE OF DISCRETION" PERMITTING CREDIT UNDER R.C.M. 305(k).

WEDNESDAY:

No. 06-0600/MC. U.S. v. Darryl S. PHILLIPS. CCA 200400865.

I. WHETHER A SUBSTITUTE CONVENING AUTHORITY CAN ORDER ADDITIONAL CONFINEMENT EXECUTED FOR FAILURE TO PAY AN ADJUDGED FINE AFTER THE SENTENCE HAS BEEN APPROVED AND EXECUTED.

II. IF APPELLANT'S CONTINGENT CONFINEMENT WAS WITH PROPER AUTHORITY, WHETHER IT WAS APPROPRIATE IN LIGHT OF OTHER POSSIBLE PUNISHMENTS ADEQUATE TO MEET THE GOVERNMENT'S NEED.

--Dwight Sullivan

Haditha

Today's Washington Post has a lengthy article about the Haditha incident.

New Air Force case: a predictable kvetch and a compliment

The Air Force Court of Criminal Appeals posted its December decisions on line today. So only today did I learn that the court issued a published opinion on 7 December. United States v. Larson, __ M.J. ___, No. ACM 35934, 2007 WL 15905 (A.F. Ct. Crim. App. 7 Dec. 2006). I continue to be perplexed by why the Air Force Court would care enough about its opinion to publish it, but then keep it under wraps for 29 days -- especially when it has the means (to wit, a web site) to share it with world instantaneously. So Air Force and Navy-Marine Corps Courts -- if you don't want to move to daily updating of your opinions, could you at least do it at the end of each week?

Now for the compliment. Judge Mathews, who wrote the Larson opinion, is quickly becoming my favorite military appellate judge. I previously praised Judge Mathews' opinion in United States v. Carr, 63 M.J. 615 (A.F. Ct. Crim. App. 2006). Larson is a case about an Air Force major who arranges a sexual liaison with a 14-year-old girl named Kristin who turns out to be, surprise, a Colorado Springs police officer. Here's the part of the opinion that I really enjoyed: Major Larson "quickly learned that Kristin was 14 years old, lived in Colorado Springs, and, up until recently, owned a pet hamster. After a few minutes of further conversation, the appellant steered the topic of discussion from rodents to sex." Slip op. at 2. We all have to read so much, it's such a joy when we read something written with a bit of flair. Judge Mathews writes with flair. (The Super Muppet is probably also a fan, since Judge Mathews wrote an opinion setting aside the sentence in a case called United States v. Grover, 63 M.J. 653, 657 (A.F. Ct. Crim. App. 2006). Now if only he could do something about the timeliness with which his artful opinions are disseminated . . . .)

But enough points for presentation -- let's move on to the points for technical merit. (I am fairly certain that is the first figure skating metaphor I have ever written; I hope it will also be my last.) The main issue in Larson was whether the military judge should have suppressed evidence found in a warrantless search of the government computer on which Major Larson worked while filling in for another officer who was deployed. The Air Force Court described this as an issue of first impression, explaining:

In military jurisprudence, the focus of Fourth Amendment litigation involving computers has primarily been on the expectation of privacy to be afforded to e-mail: personal communications between users, sent via computers using networks or the Internet. The search of the government computer here did not focus on such communications. Instead, the AFOSI searched for certain data files, created as part of the "normal operating procedure" of the Microsoft Windows operating system, which record the date, time, and Internet address of web sites visited by the computer user, as well as information about the user account in use on the computer at the time the sites were visited. Such files are like a "documented history of [the user's] travels on the Internet." United States v. Romm, 455 F.3d 990, 994 n.5 (9th Cir. 2006).

Slip op. at 5 (internal citation and footnote omitted).

The Air Force Court, not surprisingly, held that the military judge had not abused his discretion by denying the defense's suppression motion. First, the Air Force Court explained, Major Larson apparently wasn't even aware that the incriminating data files existed, and "we are unconvinced the appellant could entertain a subjective expectation of privacy in them without such knowledge." Id. Even if Major Larson did have a subjective expectation of privacy, the Air Force Court held, that expectation would be unreasonable. "The data in question was recorded automatically, not for law enforcement purposes, but as part of the computer's operating system. The appellant could not expect to keep private automatically-recorded data stored on government property he would reasonably have known would be turned over to another officer on that officer's return from deployment." Id.

The Air Force Court also rejected a few cats-and-dogs arguments, including IAC, multiplicity, and entrapment. But the opinion never clarifies whether the hamster was real, fictitious, or a Colorado Springs police officer.

--Dwight Sullivan

Fun fact from Legal Times

Tony Mauro's Christmas Day report about Chief Justice Roberts in the Legal Times included the following fun bit of trivia:

According to a new study by University of Kansas professor Lawrence Wrightsman, the number of words advocates are able to speak before being interrupted by a justice has jumped nearly 50 percent under Roberts. That trend has been attributed to the retirement in January of Justice Sandra Day O’Connor, who was usually first with a question. But Wrightsman’s numbers indicate the increase started even while O’Connor was on the bench. Wrightsman is the author of a new book, The Psychology of the Supreme Court.

May I Interrupt . . .
Median number of words spoken by Supreme Court advocates before a justice asks a question.

--------------------------------------------------------------------------------

Petitioner Respondent
•2003-2004 term (Rehnquist presiding) 111 82
•2004-2005 term (Rehnquist or Stevens presiding) 111 77
•2005-2006 term (Roberts presiding, O’Connor on Court) 137 84
•2005-2006 term (Roberts presiding, Alito on Court) 155 116
•2006-2007 term (Roberts presiding, through December) 160 121

--------------------------------------------------------------------------------

Source: Lawrence Wrightsman, University of Kansas

Notes: During the 2004-2005 term, Justice John Paul Stevens presided during periods of Chief Justice William Rehnquist’s illness. Chief Justice John Roberts Jr. presided during the entire 2005-2006 term, and Justice Sandra Day O’Connor served as an associate justice until Jan. 31, 2006, when Justice Samuel Alito Jr. succeeded her.

It would be interesting to do a similar analysis of CAAF arguments -- though the audio links that would facilitate such a study are limited to the current term.

BUT one shouldn't draw the wrong implication from this study. I have always believed, as my law school appellate advocacy text recommended, that an advocate should REJOICE when a judge asks a question. That gives the advocate insight into the judge's concerns, thereby allowing the advocate to target his or her argument to what may prove to be the determinative issue for that judge. And if Justice O'Connor, of all people, wanted to highlight her concerns, well I might be tempted to start my argument by asking her if there was anything in particular on her mind.

How many cases are won on the basis of a canned oral argument opener? Not many, I'd wager. How many arguments are won when the advocate manages to strike up a discussion with the judges? I'd be willing to bet a good many more. (Of course, I wouldn't be willing to bet with the Super Muppet or the Columbus Clipper, since that would violate a Navy Reg against gambling with junior officers. And I couldn't bet with Guert, either, since the good Commodore would then be violating the Navy Reg by betting with one of his juniors.)

At oral argument, a judge's silence is far from golden.

--Dwight Sullivan

Redeux

Like the armies struggling outside Chalmette Plantation in 1814-15, NMCCA was blissfully unaware that, when it decided United States v. Adams last month, it had already lost the Battle of New Orleans II. The C.A.A.F. decided the case of United States v. Canchola, __ M.J. __ (C.A.A.F. 2006) yesterday. Canchola appears to be an advisory opinion or, more appropriately, a rebuke of the NMCCA. As it did in Adams, NMCCA decided to tinker with C.A.A.F.'s recent post-trial delay analysis. "There must be recognition in the post-trial arena of the concept of 'excludable delay' for good cause show, just as it is in the pretrial arena." United States v. Canchola, __ M.J. __ (N.M. Ct. Crim. App. 2006). The C.A.A.F. disagreed. In footnote two, the Court states that Judge Wagner's novel application of "excludable delay" to the Moreno analysis is "inappropriate." "Review and balancing of the Barker factors, as set forth in our recent appellate delay jurisprudence, provide a sufficient framework for determining whether a due process violation has occurred." If C.A.A.F. liked Canchola, they are going to love Adams.

Slow news day

CAAF continues to keep its New Year's resolution of ensuring that the Daily Journal stays within one working day of being current. Not much of interest in today's crop other than a petition in the published Air Force case of United States v. Attucks, 64 M.J. 518 (A.F. Ct. Crim. App. 2006), which we previously discussed here. A petition had already been filed on 11 December in what strikes me as the more interesting case of United States v. Vieira, 64 M.J. 524 (A.F. Ct. Crim. App. 2006). A petition was filed on 14 November in the gambler's defense case of Untied States v. Falcon, __ M.J. ___, NMCCA No. 200401483 (N-M. Ct. Crim. App. 10 Oct 2006). And Pflueger wasted no time, filing his petition with CAAF two days after he lost at NMCCA. See Unites States v. Pflueger, __ M.J. ___, 2006 CCA LEXIS 328 (N-M. Ct. Crim. App. 5 Dec. 2006).

I believe that leaves Tingler and Upham as the only appellants who lost in published CCA cases during FY 07 who have not yet filed a petition. See United States v. Tingler, __ M.J. ___, 2006 CCA LEXIS 329 (N-M. Ct. Crim. App. 14 Dec. 2006); United States v. Upham, __ M.J. ___, No. 1235, 2006 CCA LEXIS 331 (C.G. Ct. Crim. App. 20 Dec 2006).

While we are in recap mode, does anyone know whether Dearing was ever released from the USDB?

Also, I won't be at the Parker argument tomorrow. If any CAAFlog contributor or reader is there tomorrow, will you please post a review?

--Dwight Sullivan

This week in military justice

There will be two CCA appellate arguments on Thursday, 4 January. The Navy-Marine Corps Court will hear oral argument in the appeal of United States v. Parker, a Marine Corps capital case. Also on 4 January, Panel 1 of the Air Force Court will be hearing oral argument in United States v. Heifner. I invite anyone with additional information about either case to post it below.