HUGE NEWS -- Kreutzer avoids the death penalty

As reported here by the Fayetteville Observer, Sgt Kreutzer has entered pleas of guilty in a non-capital general court-martial.

Wuterich Court-Martial to Begin--Updated

While the Supremes consider SSgt Wuterich's cert. petition, see our coverage here and the petition here, apparently the show must go on--finally. The LA Times reports here that court-martial proceedings will be held today at Camp Pendleton in the case of Staff Sergent Frank Wuterich. According to informed sources, today's hearing is an Art. 39(a) session regarding the video from CBS News. We'll bring you any updates as they come in.

The LA Times report also states, "The Marine Corps is seeking to reinstate charges against one of those initially charged, Lt. Col. Jeffrey Chessani, the battalion commander." I am not sure if that refers to seeking "expedited" NMCCA review of the unlawful command influence issue or re-preferral. Anyone in the know, please email or post in the comments.

Don't Ivy League law journals fact check?

The Court-Martial Trial Practice blog provided this link to a Yale Law Journal note on gangs in the military that I made the mistake of reading today. Gustav Eyler, Note, Gangs in the Military, 118 Yale L.J. 696 (2009).

As I've often disclosed in the past, I was one of the appellate defense counsel on the Quintanilla case, as were a couple of the other contributors to this blog. The military gang note discusses the Quintanilla case, making erroneous factual statements unsupported by the cited authority. The note includes the following passage:

The presence of gang members in the armed forces poses worrisome problems. In the military, gang members threaten unit order and compromise base security. A shocking example of this is found in the facts of United States v. Quintanilla, in which a Marine sergeant and self-proclaimed gang member shot his commanding officer and executive officer -- both lieutenant colonels -- and threatened to continue killing officers until his fellow gang members were released from confinement.

Id. at 704.

The Quintanilla case may tell us a lot about the dangers posed by untreated mentally ill Marines who self-medicate with excessive amounts of alcohol, but it doesn't tell us anything about military gang members for the simple reason that Sgt Quintanilla wasn't in a gang.

In support of its factual assertions about Quintanilla, the note cites four pages from CAAF's decision in the case (63 M.J. at 30-33) and two pages from NMCCA's decision in the case (60 M.J. at 854-55). None of these pages supports the assertion that Quintanilla was a "self-proclaimed gang member." None supports the assertion that he was a gang member at all. None provides any indication that he threatened to continue killing officers until his fellow gang members were released from confinement. I'm at a loss to understand how those statements could be printed in the Yale Law Journal without any supporting citation that verifies those factual claims.

The closest -- and this isn't close -- that the supporting footnotes come to the text's factual assertions is this quotation from NMCCA's opinion:

The appellant talked about why he shot the CO and XO, complaining that he wasn't treated well in the squadron and that he did it for his "brown brothers," or words to that effect. At one point, the appellant stood up, pulled down his coveralls, took off his undershirt, and displayed the tattoos that covered his upper body. One of the large tattoos read "Sureno," which the Government argued was a reference to Southern California gangs.

118 Yale L.J. at 704 n.45 (quoting 60 M.J. at 855).

While the author calls this "[a] particularly relevant section," absent from it are any assertions that Quintanilla proclaimed himself to be in a gang, that he was actually in a gang, or that he threatened to continue killing officers until his fellow gang members were released from confinement.

I don't expect the note's author to read the record of trial, but if he did, he would have been aware that even the government's own gang expert--who didn't mind embellishing, like when he falsely claimed to be an associate professor at U.C. Berkeley's Boalt Hall School of Law, R. at 244--repeatedly testified that there was no evidence that Quintanilla was or had ever been in a gang. See R. at 693, 694, 700, 703. As for that tattoo, if I had a large curly W tattooed on my back (and I'm not saying I don't), that wouldn't make me a member of the Washington Nationals. A defense gang expert testified that Quintanilla's tattoos were actually inconsistent with gang membership because his combination of tattoos might get him killed by a gang. R. at 730.

Again, I don't expect the author to know any of this material from the record. What I do expect the author to do is limit factual assertions to those that can be verified and to provide supporting citations. And that the author plainly failed to do. I also expect another student editor during the review process to compare the factual assertions in the note to the supporting citations and determine whether the factual statements are supported by the citations. That process appears to have broken down as well.

Why the military justice system probably does a better job on average than civilian criminal justice systems

I've previously offered my anecdotal argument for why the military justice system handles the average case better than civilian criminal justice systems do:

[F]or many civilian defendants, Gideon v. Wainwright is a false promise. Appointed counsel are generally provided only to the indigent. But in Maryland, the indigence cut-off was well below the poverty line. The working poor often earned too much to qualify for a public defender but not enough to hire a lawyer. As a result, when waiting for my cases to be called in Maryland circuit and district courts, I would often see unrepresented defendants tried, convicted, and sentenced. That just doesn't happen in the military, where everyone has a right to a free counsel.

Today's WaPo includes this op-ed by former Vice President Mondale making a similar point about Gideon's promise is unfulfilled due to unreasonably low income level cut-offs for appointed counsel. Vice President Mondale cites this report from the Brennan Center for Justice analyzing this problem.

In the military, however, only an accused who really, really wants to go pro se appears without a lawyer. As a direct result, the military justice system is fairer to the average accused than are many civilian justice systems. (Note, however, that I also believe that much like the Buffalo Bills in the 1990s, the military justice system doesn't handle the big ones well.)

NMCCA's perplexing web site

Let me start with the good: of all four CCAs, NMCCA is the only one to make audio of its oral arguments available on its web site. And I say good on it. I think anyone who listens to those arguments will be impressed with both the bench and the bar. The other three CCAs should follow suit. (As we've previously mentioned, Chief Judge Wise of the Air Force Court has stated in public remarks that AFCCA will soon be recording and webcasting its oral arguments as well. BZ to AFCCA, too.)

Now on to the bad and the ugly. Go to NMCCA's web site's opinions link, then click on the 2009 page. First off, notice that both the original Burk opinion and the opinion on reconsideration, which we discussed here, are now available on the page. But the cite to Burk is followed by this factually incorrect notation: "CAAF has granted review." No; no it hasn't. Nor is it likely that CAAF would grant review, since an accused is unlikely to file a petition for grant of review in a case in which the CCA set aside the findings and sentence. Nor has the Judge Advocate General of the Navy certified the case to CAAF. Rather, Code 46 has simply asked CAAF for more time for the Navy JAG to consider certifying the case. So while it's good that the two Burk opinions are now on NMCCA's web page, they seem to be up there solely because NMCCA is under a misimpression about the case's procedural posture. It will be interesting to see if the links are removed once NMCCA realizes that, in fact, CAAF hasn't granted review of the case.

Now let's get surreal. NMCCA has added some guidance about what's on the page and what isn't. Here it is, reproduced in full:

Opinions - This section will include final published and unpublished opinions. Published opinions are binding precedent upon this court. Opinions that are unpublished but authored may be cited as persuasive authority. Per Curium opinions (which are neither binding nor persuasive precedent), will not be posted to this web site unless the United States Court of Appeals for the Armed Forces grants a petition for review of that case.

First, let's note that "per curiam" is misspelled. Now let's look at this weird provision's substance. Do I have this right? NMCCA doesn't consider ITS OWN per curiam opinions to be even "persuasive precedent." What does that make them, unpersuasive precedent? Well, not according to NMCCA's citation guide, available here, which observes: "Unreported cases typically are not binding authority; however, 'unpublished' does not necessarily equate to 'useless' or 'unimportant.'" Now I'm no Latin scholar, but I'm pretty sure "per curiam" means "by the court" and not "useless" or "unimportant." NMCCA's own rules provide: "Citations to published cases are favored; however, citations to unpublished cases are permissible. The Court views citation to unpublished cases merely as persuasive authority." N-M. Ct. Crim. App. R. 6-4(a). Neither the court's rules not its citation guide appears to even mention per curiam opinions, much less relegate them to some sort of inferior caste. Their inferior, unpersuasive status seems to arise from nowhere. Interestingly, the Federal Rules of Appellate Procedure provide that for opinions issued after 1 January 2007, a "court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been . . . designated as 'unpublished,' 'not for publication,' 'non-precedential,' 'not precedent,' or the like." Of course, NMCCA isn't restricting the precedential effect of its per curiam opinions; rather, it's making them almost impossible for anyone who doesn't work in the Washington Navy Yard's Center of Appellate Excellence to find.

NMCCA's web site doesn't even live up to its promise of providing the court's "unpublished but authored" opinions. Consider NMCCA's fairly recent decision in United States v. Diaz, No. NMCCA 200700970 (N-M. Ct. Crim. App. Feb. 19, 2009), an opinion authored by Senior Judge Geiser. The case was a prominent one, involving a Navy JAG at JTFGTMO who mailed a classified list of detainees in a Valentine's Day card to a prominent civil rights attorney--and Guantanamo critic--at the Center for Constitutional Rights. This authored opinion in a prominent case isn't on NMCCA's web site even though two other unpublished opinions released after Diaz are. (Since NMCCA hasn't made it available, I've posted Diaz here.)

NMCCA's choice not to post Diaz seems like a poor one, but why is NMCCA making such choices at all? As we've seen, a federal statute requires the Article III appellate courts to post all of their decisions on the web. CAAF makes all of its opinions, including summary dispositions, available on the web. It appears that ACCA, AFCCA, and the Coast Guard Court make all of their opinions available on the web. Is NMCCA the only federal appellate court in the country that doesn't post all of its opinions on the Internet? Is there any sound reason why it doesn't? If so, I can't think of it.

Wuterich cert petition

We filed a cert petition today asking the Supreme Court to review CAAF's holding in United States v. Wuterich, 67 M.J. 63 (C.A.A.F. 2008). The QP is: "Whether a statute authorizing an interlocutory prosecution appeal of a ruling 'which excludes evidence' grants the Article I military appellate courts jurisdiction to reverse an order quashing a subpoena." The complete cert petition is available here.

[DISCLAIMER: I'm counsel of record for petitioner.]

Denedo amici

I've been derelict in my blogging duties. I haven't posted links to two amicus briefs that were filed in Denedo -- both in support of the respondent. I knew about both amicus briefs, but for reasons I can't explain it didn't occur to me until today to actually post them. Sorry!

Here's a link to the amicus brief of former Judge Advocates General, military judges and senior military lawyers. The amici's counsel of record is the famed Ron Meister, a distinguished Navy JAG Corps alumnus. And here's a link to an amicus brief on behalf of ten law professors in support of respondent. Counsel of Record are William M. Hohengarten and Lindsay C. Harrison of Jenner & Block.

Supremes reemphasize that appointed defense counsel aren't state actors

As discussed below, today's SCOTUS Brillon opinion isn't a helpful case for the defense for speedy trial or appellate delay purposes. But it may prove beneficial to the defense in many other ways. The case reemphasizes that a public defender isn't a state actor for non-employment/management purposes.

Consider this language from the majority opinion:

"[O]nce a lawyer has undertaken the representation of an accused, the duties and obligations are the same whether the lawyer is privately retained, appointed, or serving in a legal aid or defender program." Polk County v. Dodson, 454 U. S. 312, 318 (1981) (internal quotation marks omitted). "Except for the source of payment," the relationship between a defendant and the public defender representing him is "identical to that existing between any other lawyer and client." Ibid. Unlike a prosecutor or the court, assigned counsel ordinarily is not considered a state actor.

This language suggests that the military can't put limitations on a military defense counsel's representation that it couldn't impose on a civilian providing representation. So, for example, a military defense counsel who provides information to the media isn't releasing information on behalf of the service any more than a civilian defense counsel who releases information is. What other restrictions limit military defense counsel that may be challenged using this language?

The Supremes refine Barker v. Wingo

SCOTUS watchers are agog over today's voting rights opinion in Bartlett v. Strickland, No. 07-689. But for military justice wonks, the Supreme Court news of the day was Vermont v. Brillon, No. 08-88, in which the Supreme Court revisited Barker v. Wingo, 407 U. S. 514 (1972).

Justice Ginsburg's opinion for the Court overturned the Vermont Supreme Court's speedy trial ruling in favor of the defendant, Michael Brillon. Justice Breyer, joined by Justice Stevens, dissented, opining that the case should have been dismissed as improvidently granted.

Michael Brillon is what we in Appellate Defenseland call a client from hell. Brillon was represented by six -- count 'em, six -- appointed defense counsel during the almost three years between his arrest and conviction. The first five apparently were fired or terminated the attorney-client relationship for various reasons. One withdrew "on the ground that Brillon had threatened his life during a break in the proceedings."

Brillon's various counsel took awhile to get ready for trial. Some mentioned heavy caseload as justification for the delay. Of course, Brillon also created delay by serially firing his counsel or causing them to withdraw. Nevertheless, the Vermont Supreme Court charged all the delay caused by the appointed counsel to the state and dismissed the charges on Sixth Amendment speedy trial grounds. Wrong, ruled the Supremes. "We hold that the Vermont Supreme Court erred in ranking assigned counsel essentially as state actors in the criminal justice system. Assigned counsel, just as retained counsel, act on behalf of their clients, and delays sought by counsel are ordinarily attributable to the defendants they represent." The time will be charged to the state only if a defendant is unrepresented due to the state's fault or there is an "institutional breakdown" in the public defender system.

The Supremes' opinion focused on the second Barker factor, the reason for the delay. Noting that delay attributable to the defense counsel is weighed against the defendant, the Supremes held that that rule applies regardless of whether the defense counsel is appointed or retained. The Court held that delay caused by appointed defense counsel's inability or unwillingness to move cases forward "may not be attributed to the State simply because they are assigned counsel."

The Court did observe, however, that the "general rule attributing to the defendant delay caused by assigned counsel is not absolute. Delay resulting
from a systemic breakdown in the public defender system could be charged to the State." (quotation marks and internal citation omitted).

This opinion will likely lead CAAF to revisit its post-trial delay case law. Applying the second Barker prong in Moreno, CAAF held, "The Government bears responsibility for unreasonable delay during appeal occasioned by the workload of appellate defense counsel." United States v. Moreno, 63 M.J. 129, 138 (C.A.A.F. 2006). Brillon casts doubt over that conclusion. Under Brillon, it appears that workload-created delay is attributable to the government only if there was an institutional breakdown in the appellate defense system for the relevant service. And once that becomes the central question in appellate delay cases, things could get quite ugly. Batten down the hatches and standby for heavy seas.

NMCCA's original Burk opinion

On Friday, we looked at NMCCA's opinion on reconsideration in United States v. Burk and the Government's request for additional time for the Judge Advocate General of the Navy to potentially certify the case to CAAF. Neither the original Burk opinion nor the opinion on reconsideration appeared to be available on any public web site. On Friday, we posted the opinion on reconsideration here. United States v. Burk, No. NMCCA 200800146 (N-M. Ct. Crim. App. Feb. 12, 2009) (per curiam). And now we have a copy of the original opinion, which we've posted here. United States v. Burk, No. 200800146 (N-M. Ct. Crim. App. Dec. 4, 2008) (per curiam).