Reading Proceedings

The new September issue of the U.S. Naval Institute's Proceedings includes two articles that will fascinate military justice practitioners. One, by Baltimore Sun reporter Bradley Olson is headlined: Damned if You Do, Damned if You Don't. The subhead explains: In sexual misconduct cases, nobody wins. Just ask Lamar Owens. An introductory editorial notes that this article will likely prove controversial. Another piece by NIMJ Executive Director and USCG Reserve Commander Kathleen Duignan, Sexual Misconduct: Discretion is the Better Part of Prosecution, provides a negative review of the military justice system's record of handling sex cases. Unfortunately, the articles don't appear to be available to non-subscribers online. Those of us in the Annapolis area can buy a copy at the USNI bookstore in Preble Hall.

Summer issue of The Reporter published

The Summer 2007 edition of the Air Force's Reporter is now available online.

The issue includes many items of interest to military justice practitioners. Page 16 offers court reporters' trial advocacy tips. On page 27, an article by Captain John W. Bellflower applies warfighting principles to litigation. Page 32 provides "Military Justice Pointers," including a discussion of one fascinating case in which the Air Force Court provided relief due to authentication of an ROT containing an important error. (Here's a link to that unpublished opinion itself. United States v. Polinard, No. ACM 35806 (f rev) (A.F. Ct. Crim. App. July 31, 2006).)

There is also an article of general interest to military lawyers concerning Article 6 and subsequent legislation to emphasize the Judge Advocate General of the Air Force's role as the legal adviser to the Secretary of the Air Force and as head of the Air Force JAG Corps. Major John C. Johnson, The Air Force Advocate: An Independent Legal Advisor, Reporter, Summer 2007, at 18.

I also found particularly interesting two "Ask the Expert" notes. One, on page 6, discusses the Secretary of the Air Force's "Revised Interim Guidelines Concerning Free Exercise of Religion in the Air Force" and subsequent congressional action concerning those interim guidelines. The other, on page 7, discusses the current state of the Anthrax Vaccine Immunization Program and provides this link to Air Force guidance on the subject: https://www.a3a5.hq.af.mil/a3s/a3sc/CCBRN_resource/biological/anthrax/index.asp. Unfortunately, it doesn't appear that the link is operative from a civilian computer--a recurring problem when attempting to access Air Force regulations, including some (like the Air Force's rules of professional conduct) to which civilian counsel will often require access.

Three new issues

Just as Mr. DeCicco indicated yesterday, today's daily journal update included three orders from yesterday granting review and ordering briefs. All three are Army cases.

Here is the first, and most interesting, issue:

WHETHER THE EVIDENCE WAS LEGALLY SUFFICIENT TO SUPPORT A DETERMINATION THAT APPELLANT'S STATEMENTS TO AN UNDERCOVER NCIS AGENT ON THE INTERNET WERE EITHER DETRIMENTAL TO GOOD ORDER AND DISCIPLINE OR OF A NATURE TO BRING DISCREDIT UPON THE ARMED FORCES WHEN THE MILITARY NEXUS REFLECTED IN THE RECORD CONSISTED OF APPELLANT'S REFERENCE TO BEING A "US ARMY PARATROOPER," AND HIS STATEMENTS RAISE A SIGNIFICANT ISSUE UNDER THE FIRST AMENDMENT.

United States v. Wilcox, __ M.J. ___, No. 05-0159/AR (C.A.A.F. Sept. 6, 2007).

Sacramentum provides the following helpful synopsis of the facts in Wilcox:

The issue before the court in Wilcox concerns an accused who communicated with an undercover policeman about his pro-white beliefs. Appellant referred the undercover policeman to pro-white activist literature. After remand by CAAF, the ACCA held that "a rational trier of fact could have reasonably determined appellant's statements were anti-government and disloyal, advocated extreme racial intolerance, and, under the circumstances of this case, were prejudicial to good order and discipline and service discrediting." Appellant ended a chat session with the following words: "[B]e white, act white, think white,[ and] may GOD be with you." The sole nexus to the military is the fact that in his AOL profile, the appellant claimed he was a U.S. Army paratrooper and a pro-white activist.

CAAF had previously reviewed and remanded PFC Wilcox's case. United States v. Wilcox, 62 M.J. 456, 457 (C.A.A.F. 2006). That remand produced this opinion from ACCA: United States v. Wilcox, No. ARMY 20000876 (A. Ct. Crim. App. Dec. 22, 2006).

Here are the other two issues that CAAF granted yesterday:

WHETHER APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO A PUBLIC TRIAL WHEN THE MILITARY JUDGE EXCLUDED THE PUBLIC FROM THE COURTROOM WHEN THE VICTIM, BP, TESTIFIED ON THE MERITS.

United States v. Ortiz, __ M.J. ___, No. 07-0555/AR (C.A.A.F. Sept. 6, 2007).


WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY ACCEPTING APPELLANT'S GUILTY PLEAS TO SPECIFICATIONS 1 AND 2 OF CHARGE I, AGGRAVATED ASSAULT, WHERE APPELLANT DID NOT ADMIT FACTS THAT OBJECTIVELY SUPPORTED HIS PLEAS DURING THE PROVIDENCE INQUIRY, AND INTRODUCED EVIDENCE THAT IS SUBSTANTIALLY INCONSISTENT WITH HIS PLEAS DURING PRESENTENCING.

United States v. Dacus, __ M.J. ___, No. 07-0612/AR (C.A.A.F. Sept. 6, 2007).

Sacramentum reports that the ACCA web site doesn't include the opinions below in either Ortiz or Dacus.

All things reconsidered returns

Apparently not content with losing reconsideration motions at CAAF, today the United States lost a motion asking the Coast Guard Court to reconsider its ruling in United States v. Lind, 64 M.J. 611 (C.G. Ct. Crim. App. 2007). United States v. Lind, Docket No. 1228 (C.G. Ct. Crim. App. Sept. 7, 2007) (per curiam).

New published NMCCA opinion -- Toto, I don't think we're in 1995 anymore

LCDR Davis was originally sentenced to confinement for life in 1995. His sentence was later overturned by CAAF, United States v. Davis, 60 M.J. 469 (C.A.A.F. 2005), and he was resentenced in 2006. At that resentencing hearing, the military judge and all of the parties agreed that they would pretend it was 1995. The members were instructed to do so as well. Presumably this involved continuously playing Shaggy's "Boombastic" in the background as the court-martial's soundtrack. Wrong, ruled NMCCA, in a stunning rebuke to Shaggy (who is, after all, a USMC Desert Storm veteran). NMCCA held: "Based on the Rules for Courts-Martial, recognized military sentencing principles and the persuasive authority of [United States v.] Rivers, [27 C.M.R. 949 (A.F.B.R. 1958)] and [United States v.] Rosenthal, [62 M.J. 261 (C.A.A.F. 2005)] and considering the practical difficulties in limiting evidence on resentencing to facts in existence prior to a certain date, we conclude the military judge erred by excluding evidence of facts arising after 22 September 1995." United States v. Davis, __ M.J. ___, No. NMCCA 9600585, slip op. at 8 (N-M. Ct. Crim. App. Aug. 30, 2007).

While Davis isn't yet on NMCCA's public web site, it was uploaded to NKO today, and we have put it on the CAAFlog.com web site here.

Despite ruling that the parties should have acknowledged that they were resentencing LCDR Davis in 2006, not 1995, NMCCA held that appellant had invited the error and therefore "may not now complain he was harmed by it." Id., slip op. at 10. The court also declined to find plain error. Id.

Finally, while this was a post-Moreno case that blew the 120-day deadline for the CA's action, NMCCA balances the four post-trial delay factors and finds that LCDR Davis's due process rights weren't violated.

Great gouge

Today CAAF Clerk of Court Bill DeCicco and several CAAF staff members presented an extremely helpful orientation session for counsel. While it was billed as primarly for new counsel, I don't think any of the experienced counsel who attended were disappointed that they did.

Firs the headline news -- the highly regarded LeEllen Coacher of Judge Stucky's chambers reported that Judge Stucky and every lawyer in his chambers HATES the Garnerian style of putting citations of authority in footnotes rather than in the main text. Allow me to quote her directly: "We hate them with a passion."

Okay, onto the other news.

Mr. DeCicco indicated that the trend of the future is 15-minute arguments. He said the judges like the 15-minute time limit and when the next batch of arguments is announced, the majority will be 15-minute arguments.

Deputy Chief Clerk Dave Anderson emphasized the importance of applying the Rule 21(b)(5) factors to show good cause in supplements to petitions.

More than one presenter emphasized Rule 37(c)(4)'s prohibition against incorporation by reference.

More than one presenter warned against overly argumentative issue statements.

Mr. DeCicco emphasized that many court filings are sloppy -- with incorrect gender pronouns, cites to the wrong UCMJ article and, in some Navy-Marine Corps cases, the wrong armed force in the caption.

Mr. DeCicco emphasized the importance in motion practice of explaining why the requested relief is appropriate.

He also noted that a number of filings have been received out of time lately. He indicated that the court is growing frustrated with this trend. While he didn't expressly say this, he hinted that the historic paternalistic practice of not visiting the attorney's sins on the clients may be in danger.

More than one presenter warned against ad hominem attacks in briefs or dismissive adjectives, such as referring to the opponent's "foolish" argument.

The session highlighted the following common errors:

(1) using proportional type (such as Times New Roman) instead of courier or courier new;

(2) failing to put counsel's bar number on the filing;

(3) not attaching the CCA's opinion to the supplement;

(4) not observing the page/word count limits;

(5) simply attaching an affidavit to a filing (the so-called "staple rule") instead of filing a motion to attach;

(6) including a motion within a brief rather than filing it as a separate document;

(7) putting the appellant's SSN on the supplement -- because supps and briefs are given to LEXIS and WESTLAW and enter the public domain, the appellant's SSN should not appear on anything but the initial petition;

(8) putting the wrong docket number on a filing;

(9) filing past the deadline;

(9) drafting overly long, overly argumentative, overly repetitive, and unprofessional issue statements.

Mr. DeCicco also explained that grants of review often come in bunches because in some instances the judges decide whether to grant or deny in conference. For example, he indicated that yesterday there was a judges' conference, and today there were three orders granting review. So look for those in tomorrow's update to the daily journal.

Hail (and Farewell) to the Chief

I understand that there has been a turnover of the NMCCA Chief Judge position. Congratulations to incoming Chief Judge Ritter and best wishes to outgoing Chief Judge Rolph.

Welcome to Judge (Ret.) Matthews Mathews

I'd like to extend a welcome to our newest CAAFlog contributor, former AFCCA Judge Christopher Matthews Mathews. LtCol Matthews Mathews officially departed AFCCA on 1 Apr 2007. Lionel Sawyer & Collins is as lucky to have him as we are, welcome aboard, sir!

Still more proof that H.R. 3174 is a good idea

Whoever prepares CA's actions for the 1st Cavalry Division appears to have made the same clerical error twice. And because of that, Specialist Kevin P. Stoeser will be able to do something that only a small percentage of those convicted by court-martial are allowed to do: ask the Supreme Court to invoke its statutory certiorari jurisdiction to review his case.

In today's daily journal update, CAAF grants Stoeser's petition for the apparent purpose of spanking all those below who approved and affirmed a reprimand in Stoeser's case even though a reprimand wasn't part of the adjudged sentence. United States v. Stoeser, __ M.J. ___, No. 07-0344/AR (C.A.A.F. Aug. 31, 2007). This is all the more embarrassing because ACCA had previously set aside the first CA's action (which also approved the apparently nonexistent reprimand) on other grounds and sent it back for a second CA's action. United States v. Stoeser, No. ARMY 20030596 (A. Ct. Crim. App. May 31, 2006).

So now the door is open for Stoeser to file a cert petition. Is this a rational system, where a scrivener's error leads to a right to seek cert -- a right that is sometimes denied to those raising serious issues in their supplements?

The passage of H.R. 3174 would bring greater rationality to the system. Of course, even without a legislative fix, CAAF already has the ability to drastically improve the current system. Why shouldn't CAAF simply adopt a policy of granting every case in which the supp raises an issue? CAAF could then, if it wished, summarily affirm in many of the cases where it would deny the petition today. But then every servicemember seeking review of an issue arising from his or her court-martial would have a civilian court rule on the merits of the case -- and could, like any other defendant in any other criminal proceeding in the United States, seek cert.

Military legal publications part deux

Here are the publications I'm aware of that are devoted to U.S. military law topics. Are there any others? (The JAA's newsletter might also fit this category, but it doesn't seem to be generally available online.)

1. Air Force Law Review
2. Army Lawyer
3. JAG Magazine
4. Journal of Military and Veteran Law [on-line journal by William & Mary Marshall Wythe School of Law' Military Law Society; more on this revived journal's first piece later this week]
5. Military Law Review
6. Naval Law Review
7. The Reporter