BREAKING NEWS: Rodriguez is out

3-2 opinion holding no jurisdiction to consider untimely petition. Here's a link. More later.

CAAF accepts Code 46's concession that a CCA can't reverse a contested conviction and instead affirm a non-LIO

CAAF's latest opinion is a per curiam in which, to quote the opinion, "The facts relevant to the granted issues are few." United States v. Thompson, __ M.J. ___, No. 08-0334/MC (C.A.A.F. Jan. 5, 2009) (per curiam).

Pvt Thompson was convicted of numerous offenses including kidnapping his wife. The kidnapping allegedly occurred when, according to Pvt Thompson's wife, she was beating him with a purse in the midst of an argument and he pulled her into a car and sped off with the door still open and her legs dangling outside. The car then stopped and Pvt Thompson's wife climbed into the back seat. Over the next several hours, the couple had make-up sex. Three times. NMCCA held that the evidence supporting the kidnapping conviction was neither legally nor factually sufficient to support the "“holding for a period” requirement and instead affirmed a conviction of reckless endangerment. United States v. Thompson, No. NMCCA 200600807 (N-M. Ct. Crim. App. Dec. 11, 2007). NMCCA provided meaningful sentence relief, reducing the period of confinement by two years at a point when, in all probability, Thompson was actually released far earlier than he would have been without such relief.

But, as the saying goes, no good deed goes unpunished. NMCCA observed that a CCA can disapprove a finding of guilty and instead affirm a finding of guilty to an LIO. It then proceeded to find Thompson not guilty of one offense (kidnapping) and affirmed a finding of guilty to another offense (reckless endangerment) that wasn't an LIO. In support of that dubious enterprise, NMCCA cited two cases in which a CCA or CAAF itself set aside convictions for a greater offense and instead affirmed convictions for LIOs (Fuller and Foster) and another case in which CAAF approved setting aside one conviction based on a guilty plea and affirmed a conviction for a closely related offense instead (Sapp) -- an application of the well-worn Felty doctrine. But Felty, of course, is a doctrine limited to guilty plea cases. In Thompson, NMCCA tried to apply the closely related offense concept in a contested case.

And so today, CAAF accepted the government's concession that NMCCA improperly affirmed a finding of guilty to reckless endangerment -- an offense Pvt Thompson was never put on notice to defend against. CAAF observed, "A comparison of the elements of the two offenses reveals that a conviction for reckless endangerment requires proof of elements that are not included in a specification for kidnapping." Thompson, No. 08-0334/MC, slip op. at 8. CAAF concluded: "The Government concedes, and we agree, that the substitution was improper. Reckless endangerment is not an offense necessarily included in the offense of kidnapping." Id. CAAF set aside the reckless endangerment conviction and remanded the case to NMCCA for sentence reassessment. Id., slip op. at 9. CAAF also upheld NMCCA's conclusion that assuming arguendo that the military judge erred by failing to suppress a confession, the confession's introduction was harmless beyond a reasonable doubt.

For some reason, I'm left with a good feeling after reading Thompson. The case shows how all the various components of the military justice system interact. The members initially hammered Thompson, adjudging a sentence of a DD, confinement for seven years, and total forfeitures. The CA knocked that down to confinement for five years plus the DD and total forfeitures. NMCCA characterized the kidnapping conviction as overkill and reduced that finding (albeit, erroneously, to a non-LIO) and knocked the sentence down to a BCD, confinement for three years, and total forfeitures. Code 46 promoted justice rather than reflexively opposing relief. Now CAAF has tweaked that outcome still more, with the residuum probably representing a more just outcome than the original verdict. This may be a glass-half-empty/glass-half-full kind of thing, but this certainly appears to be the system working just as Congress contemplated it.

CAAF issues opinion in Marine Corps case

CAAF issued a per curiam opinion today in United States v. Thompson, __ M.J. ___, No. 08-0334/MC (C.A.A.F. Jan. 5, 2009) (per curiam). Here's a link. More later.

Denedo resource

SCOTUSblog (a.k.a., the Greatest Blog on Earth) has a "ScotusWiki" page that collects all relevant documents concerning each Supreme Court case that is orally argued. Here's a link to the ScotusWiki page for United States v. Denedo, No. 08-267.

This week in military justice -- 4 January 2009 edition

The military justice system will now lurch into action for the first real business week of 2009.

This week at the Supreme Court: The Solicitor General's merits brief in United States v. Denedo, No. 08-267, is due on Friday. Once it's post on the SG's web site, we'll post a link.

This week at CAAF: CAAF has no scheduled oral arguments this week but could issue opinions and/or grants.

This week at the CCAs: There do not appear to be any scheduled oral arguments at ACCA, AFCCA, or NMCCA this week. The Coast Guard Court doesn't appear to post its oral argument schedule on the web. Does anyone know of a good source for that information?

This week in courts-martial: The North County Times, which is an indispensable source of information for military justice developments in the Camp Pendleton area, is reporting that Sgt Jermaine Nelson's court-martial, which had been scheduled to start tomorrow, has been pushed back due to a ruling from the military judge granting a defense expert witness request. The military judge in the case is Judge Jeffrey Meeks -- the same judge as in the Wuterich case. Sgt Nelson is reportedly charged with unpremeditated murder and three specs of dereliction of duty. This is a companion case to United States v. Nazario, which was tried as a MEJA case in the United States District Court for the Central District of California and which resulted in a complete acquittal. During that trial, Sgt Nelson was one of two Marines jailed for contempt for refusing to testify.

As always, please let us know if you're aware of any other significant military justice developments or news. You can reach us at caaflog@caaflog.com.

Top 10 military justice stories of 2008 -- #1: The legal aftermath of the Haditha incident

From the start of 2008 to its finish, the legal aftermath of the Haditha incident continued to make news. It presents some of the most fundamental questions that a military justice system can face about the possible criminalization of acts taken during combat operations. Due to the provocative issues it presents, its high profile, and the influence that it has already had and will continue to have on the development of military jurisprudence, the legal aftermath of Haditha is the #1 military justice story of 2008.

On 19 November 2005, Iraqi insurgents detonated an IED in Haditha, killing one Marine and wounding others. (I've seen conflicting accounts of the number of wounded Marines, though most accounts seem to say two.) During the combat operations immediately following the explosion, 24 Iraqi noncombatants were reportedly killed.

Apparently an official report was made soon after the incident that 15 Iraqi civilians had been killed in the IED explosion and when caught in the crossfire between Marines and insurgents during a firefight after the explosion. But a subsequent military investigation cast doubts on that official explanation and in March 2006, NCIS began an investigation of the incident.

While capital charges were once considered a serious possibility, on 21 December 2006, non-capital offenses were preferred against eight Marines arising from either their actions at Haditha or their handling of the incident's aftermath. Charges against four Marines were eventually dismissed, including those against LCpl Justin Sharratt, which were dropped by LtGen Mattis's now-famous letter clearing him of misconduct.

As 2008 began it appeared that four Marines would be prosecuted for their actions at Haditha and/or during the incident's aftermath.

In March of 2008, just as the court-martial of LCpl Stephen B. Tatum was scheduled to begin at Camp Pendleton, the government dismissed its charges against him.

4 June 2008 saw the first actual verdict in a Haditha case when a panel of Marine Corps officers found 1st Lt. Andrew Grayson not guilty of all charges and specs, which included two specs of making false statements during the investigation into the incident and two specs of attempting to fraudulently separate from the Marine Corps.

Meanwhile, more than three years after the incident and more than two years after charges were preferred, the remaining two cases are stalled.

In March 2008, court-martial proceedings began against SSgt Frank Wuterich. But the proceedings were quickly derailed when Judge Jeffrey Meeks quashed a subpoena that the U.S. had issued to CBS News for outtakes of an interview that SSgt Wuterich had recorded with 60 Minutes correspondent Scott Pelley. The government appealed that ruling, leading to a published NMCCA decision holding that it had jurisdiction to consider the quashing of a subpoena in an Article 62 appeal and reversing the trial judge's quashing of the subpoena without having first conducted an in camera review of the outtakes. United States v. Wuterich, 66 M.J. 685 (N-M. Ct. Crim. App. 2008). CAAF subsequently heard an appeal and, in its latest divided ruling expansively interpreting military appellate courts' jurisdiction, agreed with the Navy-Marine Corps Court, though CAAF vacated NMCCA's opinion because NMCCA had erroneously held (on its own initiative rather than in response to a government motion) that SSgt Wuterich had no standing to participate in the Article 62 appeal of a ruling in his own court-martial. United States v. Wuterich, 67 M.J. 63 (C.A.A.F. 2008). [DISCLAIMER: I was one of SSgt Wuterich's appellate defense counsel in his CAAF proceedings.] But even these rulings promise only more delay. The military appellate courts didn't definitively resolve whether the United States could actually have the CBS outtakes. Rather, they ordered the military judge to conduct further review before deciding whether the outtakes had to be turned over. And they reserved judgment on whether CBS could rely on a newsgatherer privilege to prevent the outtakes' turnover even if they turn out to be relevant and non-duplicative of the portions of the interview that aired. So, even setting aside the possibility that the Supremes could overturn CAAF's decision, the Wuterich case is nowhere near resolved.

Neither is the Chessani case. The final Marine charged as a result of the Haditha incident is LtCol Jeffrey R. Chessani, who was the commanding officer of 3d Battalion, 1st Marine Regiment. He was charged with violating a lawful order and two specs of dereliction of duty. On 10 June 2008, NMCCA denied a defense petition for extraordinary relief in the case, ruling that a discovery dispute wasn't an appropriate subject for an interlocutory writ. United States v. Chessani, No. NMCCA 200800299 (N-M. Ct. Crim. App. June 10, 2008). Then, a week later, Judge Steven Folsom dismissed the charges against LtCol Chessani without prejudice due to the appearance of unlawful command influence. If the government had accepted the ruling, it could have repreferred, rereferred, and actually tried the charges long before now. But instead, the Government filed an Article 62 appeal, which remains pending before NMCCA. The case was orally argued on 17 October. But as of today -- 78 days after that argument and 200 days after Judge Folsom's ruling -- that appeal is still unresolved. And no matter which way NMCCA rules, the case is likely nowhere near finished. If the government wins a reversal and if that ruling isn't overturned by a superior court, then the case can proceed on the original charges. But even if the government ultimately loses its appeal, it can still proceed with the case by bringing new charges.

So the legal aftermath of Haditha will continue to roil the military justice waters well into 2009 and probably beyond. What to make of all this will vary widely with the perspective of the individuals viewing the military justice system. Some will see the system working. Others will see the military cynically (and inefficiently) selecting sacrificial lambs to appease its critics. Still others will see the nearly opposite image of a military justice system cynically protecting its own. But such divergent views are one of the reasons why the legal aftermath of Haditha is so significant: it offers a kind of Rorschach test to assess its viewers' attitudes toward military justice. And individual viewers' impression of that Rorschach test may say more about their preconceived notions of the system than about what is being viewed.

Top 10 military justice stories of 2008 -- #2: The first court-martial trial and conviction of a civilian since the Vietnam War

Let me start by stating the obvious: the No Man thinks this should be the #1 military justice story of 2008. I certainly agree that it's a huge story. A silver medal is hardly a badge of shame. But even following the successful prosecution of Alaa Mohammad Ali, court-martial cases brought against civilians will likely remain rare. And given that rarity, I don't think this story rises to the level of the most significant of the year.

Having noted Navarre, M.J.'s dissent, let's move onto substantive matters.

In 1968, Mr. Raymond G. Averette was a civilian contractor in Vietnam, where he worked for Pacific Architects and Engineers, Incorporated, and supervised a motor pool for the United States Army. See generally United States v. Averette, 40 C.M.R. 891 (A.C.M.R.), rev'd, 19 C.M.A. 363, 41 C.M.R. 363 (1970). He was charged with and, contrary to his pleas, convicted of "conspiracy to commit larceny of thirty-six thousand batteries and attempted larceny of the same and was sentenced to be confined at hard labor for one year and to pay a fine of $2,000.00, with provision for additional confinement not to exceed one year until said fine is paid. The convening authority approved the sentence." Id. at 891. The Army Court of Military Review rejected a jurisdictional challenge to his prosecution by court-martial, upheld the findings of guilty to the two charges of which he was convicted while tinkering a bit with the supporting specifications, and upheld the year of confinement while reducing the fine to $500. CMA reversed, concluding that Article 2(10) did not provide jurisdiction to prosecute a civilian accompanying U.S. forces in the field unless Congress had declared war.

Thirty-six years later, Congress would revisit and expand Article 2(10). The John Warner National Defense Authorization Act for Fiscal Year 2007 amended Article 2(10) to authorize courts-martial of civilians accompanying the military in the field in time of "declared war or a contingency operation." Pub. L. No. 109-364, Div. A, Title V, §552, 120 Stat. 2083, 2217 (2006) (emphasis added). Professor Geoffrey S. Corn observes that the amendment was "[r]eportedly inserted by Senator Lindsay Graham of South Carolina." Professor Corn also observes, "How this amendment will be implemented by the armed forces, and whether it will withstand constitutional scrutiny in all respects, are two unanswered questions." 2008 saw the first baby steps toward answers to those two key questions.

On 2 April 2008, as some media outlets acknowledged, the No Man was the first to break the news that a civilian contractor in Iraq had been charged under the expanded Article 2(10). The accused, Alaa Mohammad Ali, was a joint Canadian-Iraqi citizen charged with assault with a dangerous weapon arising from a stabbing at Contingency Outpost 4, Iraq, in February 2008.

On 22 June 2008, according to a Multi-National Corps - Iraq press release, Mr. Ali appeared at a court-martial and "pleaded guilty to wrongful appropriation of a knife owned by a U.S. Soldier; obstruction of justice for wrongfully disposing of the knife after it was used in a fight with another interpreter; and making a false official statement to military investigators. A military judge sentenced Mr. Ali to five months confinement."

Mr. Ali's case raised a number of intriguing jurisdictional issues. But his sentence was less than the quantum necessary to qualify for Article 66 review, meaning he had no right to judicial appellate review absent the Judge Advocate General of the Army's referral of the case to ACCA. Mr. Ali unsuccessfully sought a writ from ACCA and then filed a writ appeal at CAAF. Here's a copy of his brief in support.

CAAF ultimately summarily denied the writ appeal. Ali v. Austin, __ M.J. ___, Misc. No. 09-8001/AR (C.A.A.F. Nov. 5, 2008) (summary disposition). It's still possible that the Judge Advocate General of the Army could refer the case to ACCA for review under Article 69(d) either before or after processing an Article 69 appeal. Unless he does so, the interesting jurisdictional challenges that Mr. Ali's counsel raised in his writ appeal will lie dormant, waiting to be invoked in the next inevitable prosecution of a civilian accompanying the U.S. military in Iraq or Afghanistan.

New Year's Resolutions

As CAAFlog begins another year, we ought to take a moment not only to thank Dwight and the other regulars for their work, but also to consider some New Year's resolutions to make this valuable blog even better. I'll kick things off:

1. We will not post anonymously except for good cause shown.

2. We will not be snarky, especially in the rare instance when circumstances dictate anonymous posting. See No. 1 supra.

3. We will re-read posts before hitting the Publish Post button.

4. We will read others' posts carefully before responding.

Over to you all for Nos. 5 et seq.

[NOTE: some comments were removed from this post's comment chain post because they made or related to allegations that the Kabul Klipper and I don't believe have been substantiated in any formal proceeding. dhs]

Breaking News: No Man Realizes Fairley is Apprendi Case, Nearly Fries Computer With Coffee

Ok, since about June 28, 2008 I have been largely asleep at the MilJus switch. And since August 12, 2008 I have been asleep at the Apprendi switch. However, this morning when I read Maj. Hoege's article and Judge Beal's ruling in United States v. Fairley, see here, I nearly fried my computer with the coffee that poured out of my nose. I won't flatter myself that maybe all those Apprendi supplemental assignments of error I wrote at Code 46 penetrated deep into Maj. Beal's subconscious. But, whatever the cause, it is a great day for military justice that Apprendi v. New Jersey may now be applied to courts-martial.

On pages 5-6 of now LtCol Beal's Fairley opinion LtCol Beal discusses the concept of an element of an offense that is not set out in the offense, though strangely those 2 paragraphs are the only without legal citation in the opinion. To those that can follow my madness, I would call that the functional equivalent of an element so allow me to supply a few citations . . . more later.

Top 10 military justice stories of 2008 -- #3: Jose Nazario's acquittal in first MEJA prosecution for alleged offenses committed while on active duty

The United States has remained continually at war for the last seven years. This has produced unique legal challenges to the application of criminal law in an operational setting. Curiously, though, despite seven years of war, in some respects the military justice system remains on a peacetime footing. The President has never made "the factual determination . . . that the existence of hostilities warrants a finding that a 'time of war' exists for purposes of R.C.M. 1004(c)(6) and Parts IV and V of this Manual." So the next time you hear a military spokesperson or journalist say that the current maximum authorized punishment for desertion -- or any of the other three UCMJ offenses for which death is an authorized punishment only in time of war -- think to yourself, "Bah!"

2008 saw a smorgasbord of legal procedures for dealing with alleged criminal offenses committed in operational settings. A former U.S. servicemember was tried in U.S. district court for an alleged offense committed during combat operations, reportedly for the first time ever, resulting in an aquittal. A civilian was tried by a court-martial for the first time in more than 40 years. The Marine Corps held a court of inquiry for the first time in fifty years to examine possible war crimes committed during combat operations in Afghanistan. Military commissions sitting at Guantanamo Bay convicted two unlawful enemy combatants. Indictments were handed down against five Blackwater civilian contractors arising from a September 2007 shooting incident in Iraq while a sixth pleaded guilty to voluntary manslaughter and attempt to commit manslaughter for his role in the incident. And the regular court-martial system dealt with many, many alleged offenses committed in operational settings. Three of these varied approaches provide our number 3, 2, and 1 top-ten military justice stories of the year.

Today's installment, the number 3 military justice story of the year, is the trial in U.S. district court and acquittal of Jose Nazario, a former Marine accused of killing two detainees in 2004 in Fallujah. Nazario was reportedly the first former U.S. servicemember brought to trial under the Military Extraterritorial Jurisdiction Act for alleged offenses committed while on active duty.

On 28 August 2008, after deliberating for less than six hours, a jury in the U.S. District Court for the Central District of California acquitted Nazario of all charges. LA Weekly has this helpful recap of the case. Nazario was charged with killing two unarmed detainees during the Battle of Fallujah. As LA Weekly reports:

At Nazario's trial over the summer, two members of 3rd Squad [of Kilo Company, 3d Battalion, 1st Marine Regiment] testified to hearing the shots and seeing the corpses, but not to witnessing executions. The only men alleged to have seen the killings — Nelson, Weemer and Nazario — refused to testify. Nelson and Weemer were held in contempt last June and jailed until a judge finally ordered their release on July 3. The jury was left to deliberate with secondhand accounts of the killings and the detached witness statements of Nelson and Weemer. On August 28, a federal jury acquitted Nazario of all charges.

The two Marines who were jailed for contempt now face courts-martial for their alleged involvement in the incident. Sgt Jermaine Nelson's court-martial is scheduled to start this coming Monday. He's charged with unpremeditated murder and dereliction of duty. Sgt Ryan Weemer's court-martial is scheduled to begin the following Monday, 12 January. He is reportedly also charged with unpremeditated murder and dereliction of duty.

Nazario's may have been the first prosecution in U.S. district court of a former servicemember for offenses allegedly committed in a combat setting while on active duty, but it won't be the last. Former 101st Airborne Division paratrooper Steven Dale Green faces a capital trial in the U.S. District Court for the Western District of Kentucky starting on 27 April 2009. (Hopefully the trial was scheduled with due regard to any competing quilt shows.) Green faces 16 charges arising from the alleged rape and murder of a 14-year-old Iraqi girl and the murder of her mother, father, and sister at Mahmoudiya in 2006. Green's defense counsel, federal public defender Scott Wendelsdorf, indicated recently that he plans to rely on an insanity defense. Four soldiers were court-martialed for involvement in the incident or its aftermath. The AP reports that "[o]ne soldier charged as an accessory was sentenced to five years, while sentences for three others ranged from 90 to 110 years." Like Nazario, Green is being tried under the Military Extraterritorial Jurisdiction Act because he was discharged before the alleged offenses came to light. On 26 August 2008, U.S. District Judge Thomas B. Russell rejected a number of challenges to the court's jurisdiction to try Green.

It is far too early to draw any conclusions about the efficacy of MEJA prosecutions to deal with offenses allegedly committed in combat zones. We'll follow the Green case during the coming year and see whether it provides any greater clarity to viability of this legal approach.