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Tuesday, August 07, 2007
Pro se Marine Corps cert petition
On 6 August, the Supreme Court docketed a pro se IFP cert petition filed by a Marine on 25 June 2007. Phillips v. United States, No. 07-5716. CAAF rejected his challenge to the execution of contingent confinement at United States v. Phillips, 64 M.J. 410 (C.A.A.F. 2007), and denied reconsideration on 5 June 2007. Can any of our legion of sea service posters -- living or dead -- explain why this cert petition was filed pro se IFP?
Monday, August 06, 2007
NMCCA partially terminates its UA
Every Sunday, I used to read Dave Barry's column in the Washington Post Magazine. I miss those days. One thing Dave Barry often did was refer to some item that an "alert reader" had sent to him. While I'm no Dave Barry, I am happy to report that I have at least one alert reader. An alert reader sent an e-mail observing that there are no Navy-Marine Corps Court of Criminal Appeals decisions in volume 64 of the Military Justice Reporter. None.
That situation no doubt arises from the 15 NMCCA opinions over 2006 and early 2007 that initially didn't make it into the Military Justice Reporter, as we previously observed here.
Now I have some good news and some bad news. The good news is that 13 of the 15 missing opinions have now been published in volume 65 of the Military Justice Reporter. The bad news is that one -- United States v. Gonzalez, No. NMCCA 200400055 (N-M. Ct. Crim. App. Aug. 10, 2006)-- transmogrified from a published opinion into a not reported opinion on WESTLAW and another -- United States v. Quinn-Monreal, No. NMCCA 200401632 (N-M. Ct. Crim. App. Aug. 9, 2006), is still completely UA. Has enough time passed that we should declare it a deserter?
That situation no doubt arises from the 15 NMCCA opinions over 2006 and early 2007 that initially didn't make it into the Military Justice Reporter, as we previously observed here.
Now I have some good news and some bad news. The good news is that 13 of the 15 missing opinions have now been published in volume 65 of the Military Justice Reporter. The bad news is that one -- United States v. Gonzalez, No. NMCCA 200400055 (N-M. Ct. Crim. App. Aug. 10, 2006)-- transmogrified from a published opinion into a not reported opinion on WESTLAW and another -- United States v. Quinn-Monreal, No. NMCCA 200401632 (N-M. Ct. Crim. App. Aug. 9, 2006), is still completely UA. Has enough time passed that we should declare it a deserter?
Saturday, August 04, 2007
April fools!
This week, the April issue of the Army Lawyer was placed on the TJAGLCS web site.
Two articles -- both by Army trial judiciary judges -- will be of interest to military justice practitioners. The first is Keys to a Successful Direct Examination, by LTC Robert M. Twiss of the 4th Judicial Circuit at Fort Lewis, Washington. Army Law., April 2007, at 28. As the article's name suggests, it's a how-to trial advocacy guide to direct examinations -- and a relatively detailed guide, weighing in at 14 pages.
The second is a brief look at sentencing evidence of rehabilitative/retention potential by LTC Roger E. Neil of the 2nd Judicial Circuit at Fort Stewart, Georgia. Rehabilitative Potential and Retention Evidence, Army Law., April 2007, at 42. The article offers an evidentiary foundation for introducing information of rehabilitative/retention potential.
Two articles -- both by Army trial judiciary judges -- will be of interest to military justice practitioners. The first is Keys to a Successful Direct Examination, by LTC Robert M. Twiss of the 4th Judicial Circuit at Fort Lewis, Washington. Army Law., April 2007, at 28. As the article's name suggests, it's a how-to trial advocacy guide to direct examinations -- and a relatively detailed guide, weighing in at 14 pages.
The second is a brief look at sentencing evidence of rehabilitative/retention potential by LTC Roger E. Neil of the 2nd Judicial Circuit at Fort Stewart, Georgia. Rehabilitative Potential and Retention Evidence, Army Law., April 2007, at 42. The article offers an evidentiary foundation for introducing information of rehabilitative/retention potential.
All things reconsidered revisted -- again
A recent discussion thread in comments to a post suggested that the various appellate government divisions' high rate of seeking reconsideration of CAAF cases that they lose (26.3% this term) may be tied to attempting to convince the SG to seek cert. If so, the government's success rate with the SG is comparable to the success rate of its reconsideration petitions. Since the Military Justice Act of 1983 established the Supremes' statutory cert jurisdiction over CMA/CAAF's decisions, the SG has sought cert to review a CAAF decision exactly twice -- once in Clinton v. Goldsmith and once in United States v. Scheffer. The Supremes granted cert in Clinton v. Goldsmith on 2 November 1998, 525 U.S. 961 (1998) (order), so it's been about 9 years since a military appellate government division has convinced the SG to seek cert.
Interestingly, it appears that in neither Scheffer nor Goldsmith did the Air Force Appellate Government Division seek reconsideration at CAAF.
As we have seen, this term the various appellate government divisions sought reconsideration in 5 of the 19 cases they lost at CAAF. The period for seeking cert has already expired in three of those cases (McAllister, reconsideration denied 6 Feb, 64 M.J. 428 (C.A.A.F. 2007); Tate, reconsideration denied 22 Feb., 64 M.J. 441 (C.A.A.F. 2007); Brooks, reconsideration denied 21 March, 65 M.J. 12 (C.A.A.F. 2007). The two cases in which CAAF most recently denied the government's requests for reconsideration -- Gardinier and Lewis -- are still within the SG's 90-day window to seek either cert or an extension of the period for seeking cert.
Interestingly, it appears that in neither Scheffer nor Goldsmith did the Air Force Appellate Government Division seek reconsideration at CAAF.
As we have seen, this term the various appellate government divisions sought reconsideration in 5 of the 19 cases they lost at CAAF. The period for seeking cert has already expired in three of those cases (McAllister, reconsideration denied 6 Feb, 64 M.J. 428 (C.A.A.F. 2007); Tate, reconsideration denied 22 Feb., 64 M.J. 441 (C.A.A.F. 2007); Brooks, reconsideration denied 21 March, 65 M.J. 12 (C.A.A.F. 2007). The two cases in which CAAF most recently denied the government's requests for reconsideration -- Gardinier and Lewis -- are still within the SG's 90-day window to seek either cert or an extension of the period for seeking cert.
H.R. 3174 update
There are now seven co-sponsors of H.R. 3174, the Equal Justice for Our Military Act. Maybe the No Man and I can figure out a way to create a thermometer on the new CAAFlog web site to track the bill's progress toward the 218 needed for a majority of the House of Representatives. Adding sponsor Representative Davis to the 7 co-sponsors means the bill is already more than 3% of the way there!
Unfortunately, none of the current co-sponsors is on the House Judiciary Committee, the committee to which the bill has been referred.
Here is a list of the current co-sponsors:
Rep. Neil Abercrombie [HI-1]
Rep. Gary L. Ackerman [NY-5]
Rep. Rodney Alexander [LA-5]
Rep. Julia Carson [IN-7]
Rep. David Loebsack [IA-2]
Rep. Carol Shea-Porter [NH-1]
Rep. Ike Skelton [MO-4]
Unfortunately, none of the current co-sponsors is on the House Judiciary Committee, the committee to which the bill has been referred.
Here is a list of the current co-sponsors:
Rep. Neil Abercrombie [HI-1]
Rep. Gary L. Ackerman [NY-5]
Rep. Rodney Alexander [LA-5]
Rep. Julia Carson [IN-7]
Rep. David Loebsack [IA-2]
Rep. Carol Shea-Porter [NH-1]
Rep. Ike Skelton [MO-4]
CAAF orientation session for newly reported appellate counsel
CAAF has posted an announcement on its web site that it will hold an orientation session for newly reported appellate counsel at 10 a.m. on 6 September. One of those newly reported counsel will be -- me.
Update pending
I have many posts that I hope to make later today. But this afternoon I'm off to take my daughter to see Underdog. Maybe I'll post a review later today. Okay, probably not.
Thursday, August 02, 2007
All things reconsidered revisited
We recently saw that of the 19 cases it lost at CAAF last term, the government sought reconsideration in 4 of them. Make that 5. Today's daily journal update included a denial of Army GAD's reconsideration request in United States v. Lewis, 65 M.J. 85 (C.A.A.F. 2007). United States v. Lewis, __ M.J. ___, No. 07-5002/AR (C.A.A.F. Aug. 1, 2007).
So the government sought reconsideration in more than a quarter of the cases it lost last term. And Army GAD sought reconsideration in half of the cases it lost. (Reconsideration sought in McAllister, Gardinier & Lewis; no reconsideration sought in Wise, Albaaj & Resch.)
The various appellate government divisions' reconsideration practice has been both frequent and fruitless. CAAF denied all five of the government's reconsideration petitions.
So the government sought reconsideration in more than a quarter of the cases it lost last term. And Army GAD sought reconsideration in half of the cases it lost. (Reconsideration sought in McAllister, Gardinier & Lewis; no reconsideration sought in Wise, Albaaj & Resch.)
The various appellate government divisions' reconsideration practice has been both frequent and fruitless. CAAF denied all five of the government's reconsideration petitions.
The Air Force Court posted 2 published opinions today
The first is United States v. Pariso, __ M.J. ___, No. ACM 36671 (A.F. Ct. Crim. App. July 31, 2007).
Senior Airman Pariso was found guilty of using the prescription drug Tylenol III. The providence inquiry indicated that he injected melted Tylenol III tablets with a syringe, as a result of which he stopped breathing before a visit to the emergency room successfully revived him. He was sentenced to a BCD, confinement for 60 days, and reduction to E-1.
The defense raised two issues on appeal: (1) whether the providence inquiry invalidated the plea because Pariso indicated that he or his fiance may have obtained the Tylenol III with a prescription; and (2) whether the sentence was inappropriately severe. Held: no and no.
During the Care inquiry, Pariso indicated that the prescription would not have been recent and that he didn't use the Tylenol III in the intended manner. He also admitted that he had no authority to use the Tylenol III and that he wasn't using it for medical purposes. The Air Force Court held:
Id., slip op. at 4.
The Air Force Court rejected the sentence appropriateness challenge in a single sentence supported by a citation to United States v. Healy, 26 M.J. 394, 395 (C.M.A. 1988). That page of Healy features a discussion of the distinction between "justice" and "clemency" -- which was presumably the proposition that the Air Force Court had in mind when citing it.
The second is United States v. Gatewood, __ M.J. ___, No. 36722 (A.F. Ct. Crim. App. July 30, 2007) (per curiam).
Gatewood involves an unsuccessful plain error challenge to the propriety of the TC's closing argument. "In the first statement complained of by the appellant, trial counsel referred to the 'Core Values' of the Air Force (integrity, service before self, excellence) and briefly described how the appellant failed to live up to them." Id., slip op. at 2. I must admit to being somewhat relieved that the court determined that this was proper argument, since a few years ago I whipped out a Marine Corps Values card while making my closing argument as recorder in an admin discharge board.
"The second and third statements made by trial counsel the appellant asserts were improper referred to the appellant's pregnancy and, essentially, her fitness as a mother." Id., slip op. at 2-3. The court essentially ruled that the defense had opened the door to such argument by basing much of its E&M case on Airman Basic Gatewood's responsibilities as a mother and the adverse effect that confinement would have on her "relationship with her soon-to-be daughter." Id., slip op. at 3.
Senior Airman Pariso was found guilty of using the prescription drug Tylenol III. The providence inquiry indicated that he injected melted Tylenol III tablets with a syringe, as a result of which he stopped breathing before a visit to the emergency room successfully revived him. He was sentenced to a BCD, confinement for 60 days, and reduction to E-1.
The defense raised two issues on appeal: (1) whether the providence inquiry invalidated the plea because Pariso indicated that he or his fiance may have obtained the Tylenol III with a prescription; and (2) whether the sentence was inappropriately severe. Held: no and no.
During the Care inquiry, Pariso indicated that the prescription would not have been recent and that he didn't use the Tylenol III in the intended manner. He also admitted that he had no authority to use the Tylenol III and that he wasn't using it for medical purposes. The Air Force Court held:
[A] service member who knowingly uses a controlled substance without legitimate medical reason for doing so has wrongfully used the drug in the same way a physician who knowingly prescribes a controlled substance without a legitimate medical reason is guilty of "wrongfully" dispensing the substance in violation of the [Controlled Substances Act, 21 U.S.C. 801, 802, 841(a)(f)]. Once an individual uses the controlled substance for some purpose other than medical treatment, the use is no longer legally justified or authorized and is wrongful.
Id., slip op. at 4.
The Air Force Court rejected the sentence appropriateness challenge in a single sentence supported by a citation to United States v. Healy, 26 M.J. 394, 395 (C.M.A. 1988). That page of Healy features a discussion of the distinction between "justice" and "clemency" -- which was presumably the proposition that the Air Force Court had in mind when citing it.
The second is United States v. Gatewood, __ M.J. ___, No. 36722 (A.F. Ct. Crim. App. July 30, 2007) (per curiam).
Gatewood involves an unsuccessful plain error challenge to the propriety of the TC's closing argument. "In the first statement complained of by the appellant, trial counsel referred to the 'Core Values' of the Air Force (integrity, service before self, excellence) and briefly described how the appellant failed to live up to them." Id., slip op. at 2. I must admit to being somewhat relieved that the court determined that this was proper argument, since a few years ago I whipped out a Marine Corps Values card while making my closing argument as recorder in an admin discharge board.
"The second and third statements made by trial counsel the appellant asserts were improper referred to the appellant's pregnancy and, essentially, her fitness as a mother." Id., slip op. at 2-3. The court essentially ruled that the defense had opened the door to such argument by basing much of its E&M case on Airman Basic Gatewood's responsibilities as a mother and the adverse effect that confinement would have on her "relationship with her soon-to-be daughter." Id., slip op. at 3.
Wednesday, August 01, 2007
The Pro Se and the In Forma Pauperis (with apologies to Mark Twain)
The Supreme Court's web site posted a new cert petition today. United States v. Monette, No. 07-5623. Guess which service it arises from. Here's a hint: it's a pro se petition.
The pro se cert petition was actually filed on 21 May 2007, but was apparently only recently docketed, as indicated by the SG's 30 August reply date (which will, no doubt, be waived long before then).
Let's look at Monette's history, shall we?
Chief Warrant Officer 2 Monette pled guilty to and was convicted of 16 -- count 'em, 16 -- specifications of violating Article 134: 4 indecent acts with a child; 2 indecent liberties with a child; 2 kidnappings; 4 violations of the CPPA; 1 inducing female under 12 into producing child porn; 1 making, shipping or transporting child porn; and 1 knowingly receiving child porn. Judge Trimble sentenced him to a dismissal, confinement for 10 years, and total forfeitures. The CA wiped out the forfeitures but approved the remainder of the sentence.
ACCA originally reviewed Monette in an opinion issued on 16 March 2005. United States v. Monette, No. ARMY 20020088 (A. Ct. Crim. App. March 16, 2005). ACCA held that under CAAF precedent applying Ashcroft v. Free Speech Coalition, 535 U.S. 234, 258 (2002), it couldn't affirm the convictions under Article 134(3) for 5 of the specs involving child pornography, but held that it could affirm findings of guilty under Article 134(1) and (2) instead.
Over Judge Crawford's dissent, CAAF disagreed. United States v. Monette, 63 M.J. 426 (C.A.A.F. 2006) (summary disposition). CAAF set aside the findings of guilty to those 5 specs and authorized either a rehearing on those specs or dismissal of those specs followed by reassessment of the sentence or a rehearing on the sentence based on the remaining findings of guilty.
On remand, ACCA chose to dismiss those 5 specs and reassess the sentence. United States v. Monette, No. ARMY 20020088, slip op. at 3 (A. Ct. Crim. App. July 25, 2006).
In choosing to reassess rather than order a rehearing, ACCA made the obligatory citation to the abomination of military law (United States v. Sales, 22 M.J. 305, 307 (C.M.A. 1986)), and then reasoned: "Due to the egregiousness of appellant’s conduct, we are secure in our position that the military judge would have imposed a sentence of a certain magnitude had appellant pleaded guilty to, and been convicted of, only the remaining charges and specifications." Id., slip op. at 4. ACCA then somehow purported to divine that even without the 5 child pornography specs it set aside, the military judge would have imposed a sentence of at least a dismissal and confinement for 9 years and 10 months, id., slip op. at 5 -- 2 months less than he actually adjudged. How ACCA knew that the military judge imposed no more than 2 months of confinement for the 5 child pornography specs, I have no idea.
When an accused thinks he has the power to "read [people's] minds," it's taken as a sign of mental disorder. See United States v. Clark, 62 M.J. 195, 196 (C.A.A.F. 2005). But when military appellate judges think they can read the trial judge's mind, it's called "reassessment" rather than crazy talk. I can only assume that Judge Trimble and ACCA are part of the Psychic Friends Network.
After ACCA demonstrated its psychic powers, in keeping with its policy that it will open the door to the Supreme Court by granting review in a case that it previously remanded, CAAF granted Monette's petition and summarily affirmed. United States v. Monette, 64 M.J. 440 (C.A.A.F. 2007) (summary disposition).
The next time Monette's case pops up on the radar screen is when he filed his pro se petition at the Supremes.
Now I'm not suggesting that a cert-petition-length version of my screed against Sales would have a prayer of being granted -- of course it wouldn't -- but would it be frivolous to file a cert petition attacking ACCA's reasoning? What if we applied CAPT Philpott's $10,000 test to such a cert petition? I suppose that if I were in private practice and Monette dumped $10,000 on my desk to file a cert petition in his case, first I'd wonder how he got out of Leavenworth. Then I would advise him to save his money, letting him know that there is about at 0.001% chance that the Supremes would grant cert in his case. But what if Monette then told me that Ruppert Murdoch just bought his controlling share of the Psychic Friends Network for $5 billion, money is no object, and that he wanted to take that 1-in-100,000 chance? Would I feel like I could ethically seek cert on his behalf without offending the Supreme Court's rule against frivolous filings? You bet. Well, fortunately for everyone at the USDB, they are represented by lawyers paid by an employer with pockets even deeper than Mr. Murdoch's. So the answer to CAPT Philpott's $10,000 test is: file a cert petition. What is the justification for the opposite answer?
The pro se cert petition was actually filed on 21 May 2007, but was apparently only recently docketed, as indicated by the SG's 30 August reply date (which will, no doubt, be waived long before then).
Let's look at Monette's history, shall we?
Chief Warrant Officer 2 Monette pled guilty to and was convicted of 16 -- count 'em, 16 -- specifications of violating Article 134: 4 indecent acts with a child; 2 indecent liberties with a child; 2 kidnappings; 4 violations of the CPPA; 1 inducing female under 12 into producing child porn; 1 making, shipping or transporting child porn; and 1 knowingly receiving child porn. Judge Trimble sentenced him to a dismissal, confinement for 10 years, and total forfeitures. The CA wiped out the forfeitures but approved the remainder of the sentence.
ACCA originally reviewed Monette in an opinion issued on 16 March 2005. United States v. Monette, No. ARMY 20020088 (A. Ct. Crim. App. March 16, 2005). ACCA held that under CAAF precedent applying Ashcroft v. Free Speech Coalition, 535 U.S. 234, 258 (2002), it couldn't affirm the convictions under Article 134(3) for 5 of the specs involving child pornography, but held that it could affirm findings of guilty under Article 134(1) and (2) instead.
Over Judge Crawford's dissent, CAAF disagreed. United States v. Monette, 63 M.J. 426 (C.A.A.F. 2006) (summary disposition). CAAF set aside the findings of guilty to those 5 specs and authorized either a rehearing on those specs or dismissal of those specs followed by reassessment of the sentence or a rehearing on the sentence based on the remaining findings of guilty.
On remand, ACCA chose to dismiss those 5 specs and reassess the sentence. United States v. Monette, No. ARMY 20020088, slip op. at 3 (A. Ct. Crim. App. July 25, 2006).
In choosing to reassess rather than order a rehearing, ACCA made the obligatory citation to the abomination of military law (United States v. Sales, 22 M.J. 305, 307 (C.M.A. 1986)), and then reasoned: "Due to the egregiousness of appellant’s conduct, we are secure in our position that the military judge would have imposed a sentence of a certain magnitude had appellant pleaded guilty to, and been convicted of, only the remaining charges and specifications." Id., slip op. at 4. ACCA then somehow purported to divine that even without the 5 child pornography specs it set aside, the military judge would have imposed a sentence of at least a dismissal and confinement for 9 years and 10 months, id., slip op. at 5 -- 2 months less than he actually adjudged. How ACCA knew that the military judge imposed no more than 2 months of confinement for the 5 child pornography specs, I have no idea.
When an accused thinks he has the power to "read [people's] minds," it's taken as a sign of mental disorder. See United States v. Clark, 62 M.J. 195, 196 (C.A.A.F. 2005). But when military appellate judges think they can read the trial judge's mind, it's called "reassessment" rather than crazy talk. I can only assume that Judge Trimble and ACCA are part of the Psychic Friends Network.
After ACCA demonstrated its psychic powers, in keeping with its policy that it will open the door to the Supreme Court by granting review in a case that it previously remanded, CAAF granted Monette's petition and summarily affirmed. United States v. Monette, 64 M.J. 440 (C.A.A.F. 2007) (summary disposition).
The next time Monette's case pops up on the radar screen is when he filed his pro se petition at the Supremes.
Now I'm not suggesting that a cert-petition-length version of my screed against Sales would have a prayer of being granted -- of course it wouldn't -- but would it be frivolous to file a cert petition attacking ACCA's reasoning? What if we applied CAPT Philpott's $10,000 test to such a cert petition? I suppose that if I were in private practice and Monette dumped $10,000 on my desk to file a cert petition in his case, first I'd wonder how he got out of Leavenworth. Then I would advise him to save his money, letting him know that there is about at 0.001% chance that the Supremes would grant cert in his case. But what if Monette then told me that Ruppert Murdoch just bought his controlling share of the Psychic Friends Network for $5 billion, money is no object, and that he wanted to take that 1-in-100,000 chance? Would I feel like I could ethically seek cert on his behalf without offending the Supreme Court's rule against frivolous filings? You bet. Well, fortunately for everyone at the USDB, they are represented by lawyers paid by an employer with pockets even deeper than Mr. Murdoch's. So the answer to CAPT Philpott's $10,000 test is: file a cert petition. What is the justification for the opposite answer?
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