In the Army Court of Criminal Appeals latest post-trial delay decision, Etibek (memorandum opinion), ACCA gives back 1 month of confinement already served (and the appellant's automatic forfeitures for that period). ACCA deemed the appellant's claims worthy as a result of a 224-day delay in processing between authentication and the SJA's completion of the SJAR. In this guilty plea, desertion case (you don't see those too often), the SJA (who is named in the opinion) offered a series of reasons why it took her 224 days to write a two-page SJAR. ACCA didn't find any of them "compelling to explain why it took the SJA two hundred twenty-four days, on a fifty-seven-page record of trial, to create a two-page SJAR." ACCA also found prejudice to the appellant's chances for clemency and parole where there was no action on his case, which resulted in 13 months confinement, for 291 days.
This latter finding, about prejudice to clemency and parole, is something that can probably be said for any appellant with a non-life/long term of years sentence. I wonder if appellant's will seize on this and run for the payola? More importantly for the system, I wonder if this is the best trend in remedying post-trial delay--awarding post-confinement payola for post-trial delay. AFCCA used the same formula in Miller and CAAFlog has documented countless similar decisions, much to the displeasure of at least one of our readers. If the point of post-trial delay is to punish the government for denial of due process, the pain should be inflicted on the convening authority. Do CA's really lose any money when CCA orders come down, or is big Navy/Air Force/Army paying? I am guessing the $ flows from the "Lost Battalions" of each service (for those that have not read the Marine Corps Gazette article on the "Lost Battalion," I commend you to it and one of our reader's commentary on it here). Any other suggestions to make convening authorities feel the pain? Other than reassigning the offending servicemembers to the command, I can't think of much that would do the trick if the point hasn't been made yet.
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Saturday, March 31, 2007
Friday, March 30, 2007
And a new CGCCA case
Here is the link to another new CCA case, this time from the Coast Guard:
https://afls16.jag.af.mil/CG/Court%20of%20Criminal%20Appeals%20Opinions/Fiscal%20Years%202006%20and%202007/20070323%20United%20States%20v.%20Gonzalez%2C%20M.J..pdf
https://afls16.jag.af.mil/CG/Court%20of%20Criminal%20Appeals%20Opinions/Fiscal%20Years%202006%20and%202007/20070323%20United%20States%20v.%20Gonzalez%2C%20M.J..pdf
Thursday, March 29, 2007
Monday, March 26, 2007
C.A.A.F. decides United States v. Phillips
The Court decided United States v. Phillips today. For those who have been waiting fifty-six years for the C.A.A.F. to answer those burning questions about whether and when a substitute convening authority may execute a contingent fine, this case will make you wonder why you did not watch the moon landings instead.
Major Phillips, who was setting up shell companies and then paying "bills" with government credit cards to the tune of $400,000 USD, was sentenced to five years confinement, dismissal, a reprimand, and a $400,000 fine. The court-martial imposed an additional five years of confinement if Major Phillips failed to pay the fine. Days before he was to be released from confinement, a substitute convening authority with no previous connection to the case held a fine enforcement hearing. The hearing officer rejected Major Phillips's claim of indigence and the convening authority executed the additional confinement. The C.A.A.F. assures us that the convening authority was not a "substitute convening authority", but rather the "authority considering imposition of confinement" under R.C.M. 1113(d)(3). Problem solved. For the four or five convicted and confined servicemembers who have not paid contingent fines, who have internet access, who are not concerned with ex-parte communications with convicted servicemembers, and are reading this blog, there may be a convening authority somewhere that is watching. The mission to Mars is only a few years off.
Major Phillips, who was setting up shell companies and then paying "bills" with government credit cards to the tune of $400,000 USD, was sentenced to five years confinement, dismissal, a reprimand, and a $400,000 fine. The court-martial imposed an additional five years of confinement if Major Phillips failed to pay the fine. Days before he was to be released from confinement, a substitute convening authority with no previous connection to the case held a fine enforcement hearing. The hearing officer rejected Major Phillips's claim of indigence and the convening authority executed the additional confinement. The C.A.A.F. assures us that the convening authority was not a "substitute convening authority", but rather the "authority considering imposition of confinement" under R.C.M. 1113(d)(3). Problem solved. For the four or five convicted and confined servicemembers who have not paid contingent fines, who have internet access, who are not concerned with ex-parte communications with convicted servicemembers, and are reading this blog, there may be a convening authority somewhere that is watching. The mission to Mars is only a few years off.
Law & Order: Dearing Part 63
In the ever continuing saga, today's Daily Journal (well technically Thursday's, but it was posted today) lists yet another U.S. v. Dearing extraordinary writ. Someone please tell me the guy isn't still sitting in post-trial confinement while great criminal (law) minds run around trying to figure out what to do with the case? Here is the post from the Daily Journal:
Misc. No. 07-8011/NA. Brian DEARING, Petitioner, v. United States, Respondent. CCA 200100291. Notice is hereby given that a petition for extraordinary relief in the nature of a writ of habeas corpus and writ of mandamus was filed under Rule 27(a) on March 19, 2007, and placed on the docket this date. On consideration thereof, it is ordered that the Judge Advocate General of the Navy appoint counsel to represent Petitioner and Respondent herein, and that Respondent show cause by March 27, 2007, why the requested relief should not be granted.
I think at least one judge, though maybe all five, may be a little annoyed if this is the same issue CAAFlog discussed over the last four months, including here, here, and here. Someone in the know, please let us know.
Misc. No. 07-8011/NA. Brian DEARING, Petitioner, v. United States, Respondent. CCA 200100291. Notice is hereby given that a petition for extraordinary relief in the nature of a writ of habeas corpus and writ of mandamus was filed under Rule 27(a) on March 19, 2007, and placed on the docket this date. On consideration thereof, it is ordered that the Judge Advocate General of the Navy appoint counsel to represent Petitioner and Respondent herein, and that Respondent show cause by March 27, 2007, why the requested relief should not be granted.
I think at least one judge, though maybe all five, may be a little annoyed if this is the same issue CAAFlog discussed over the last four months, including here, here, and here. Someone in the know, please let us know.
Friday, March 23, 2007
Sore loser's club
One CAAFlog commentator has remarked on the various appellate government divisions' fondness for petitions for reconsideration this term. CAAF just denied another one. New to the Daily Journal:
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 07-113
Wednesday, March 21, 2007
. . . .
No. 06-0060/AF U.S. v. Stacey S. BROOKS. CCA 35420. On consideration of Appellee’s petition for reconsideration of this Court’s decision, 64 M.J. 325 (C.A.A.F. 2007), it is ordered that said petition for reconsideration be, and the same is, hereby denied.*
* Judge Stucky and Judge Ryan did not participate.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 07-113
Wednesday, March 21, 2007
. . . .
No. 06-0060/AF U.S. v. Stacey S. BROOKS. CCA 35420. On consideration of Appellee’s petition for reconsideration of this Court’s decision, 64 M.J. 325 (C.A.A.F. 2007), it is ordered that said petition for reconsideration be, and the same is, hereby denied.*
* Judge Stucky and Judge Ryan did not participate.
New New news
The SG's opposition in New is now up on the SG's web site. Here's a link.
The opposition's discussion of collateral review of court-martial convictions is both fascinating and significant. I have spent much of my legal career focused on the military death penalty, (In the Isaiah Berlin fox/hedgehog dichotomy, I am a hedgehog.) Because military death row is in Kansas, I have had a longstanding interest in the 10th Circuit's case law on the scope of review for habeas challenges to court-martial cases. And it is, in a word, awful. Here's the current 10th Circuit standard:
Roberts v. Callahan, 321 F.3d 994, 997 (10th Cir.) (internal citations omitted), cert. denied, 540 U.S. 973 (2003).
It would be easier for a camel to go through the eye of a needle than for a military habeas case to slip into that gap between complete deference and waiver.
So it was heartening to read the Solicitor General's take on the collateral review issue. First, the SG quotes then-Judge Alito to establish that there IS a circuit split:
SG's Brief in Opp at 11.
The SG then assures us that despite that circuit split,
courts of appeals have . . . been in broad agreement on two principles. First, the courts of appeals have generally held that, where the claims at issue have already been considered by the military courts, only claims involving fundamental or substantial constitutional errors are cognizable on collateral review. See, e.g., Bowling v. United States, 713 F.2d 1558, 1561 (Fed. Cir. 1983) (explaining that "the constitutional claims made must be serious ones"a nd "demonstrate convincingly that in the court-martial proceedings there has been such a deprivation of fundamental fairness as to impair due process"); Calley v. Callaway, 519 F.2d 184, 199 (5th Cir. 1975) (stating that "[t]he asserted error must be of substantial constitutional dimension"). Second, the courts of appeals have generally held that, even with regard to such constitutional claims, the decisions of the military courts are entitled to at least some degree of deference. See, e.g., Brosius, 278 F.3d at 245 (stating that "our inquiry in a military habeas case may not go further than our inquiry in a state habeas case" and assuming, for the sake of argument, that the deferential standard of 28 U.S.C. 2254(d) was applicable to the substantive determinations of military courts); Kauffman v. Secretary of the Air Force, 415 F.2d 991, 997 (D.C. Cir. 1969) (explaining that "the test of fairness requires that military rulings on constitutional issues conform to Supreme Court standards, unless it is shown that conditions peculiar to military life require a different rule").
Note two important things. First, applying those two principles would result in a much more searching scope of review than the 10th Circuit applies. As the 10th Circuit noted in one of its leading cases governing habeas review of court-martial cases, if an issue was "given full and fair consideration by the military courts," the the district court "should . . . den[y] the [habeas] petition." Lips v. Commandant, United States Disciplinary Barracks, 997 F.2d 808, 810 (10th Cir. 1993). Worse still, under 10th Circuit case law, "[W]hen an issue is briefed and argued before a military board of review, we have held that the military tribunal has given the claim fair consideration, even though its opinion summarily disposed of the issue with the mere statement that it did not find the issue meritorious or requiring discussion." Watson v. McCotter, 782 F.2d 143, 145 (10th Cir.), cert. denied, 476 U.S. 1184 (1986). So in the 10th Circuit, the barest of CCA brushoffs {e.g., "We find appellant's remaining 10 assignments of error to be without merit") is sufficient to preclude habeas reivew of even the weightiest constitutional issue.
Second, the SG didn't cite ANY 10th Circuit case law. Look at the opposition -- it cites cases from four courts: the 3d, 5th, D.C., and Federal Circuits. Discussing collateral review of court-martial convictions without mentioning the 10th Circuit is a little like discussing contemporary home-run hitters without mentioning Barry Bonds. And the reason is probably the same in both instances: it would be a little bit embarrassing to talk about.
So those of you who represent servicemembers who may ultimately have a habeas case in the 10th Circuit -- and particularly those of you who represent servicemembers in military death penalty cases -- squirrel away this SG opposition; it may prove quite useful if you ever seek cert asking the Supreme Court to review the 10th Circuit's scope of review in military habeas cases.
The opposition's discussion of collateral review of court-martial convictions is both fascinating and significant. I have spent much of my legal career focused on the military death penalty, (In the Isaiah Berlin fox/hedgehog dichotomy, I am a hedgehog.) Because military death row is in Kansas, I have had a longstanding interest in the 10th Circuit's case law on the scope of review for habeas challenges to court-martial cases. And it is, in a word, awful. Here's the current 10th Circuit standard:
If the grounds for relief that Petitioner raised in the district court were fully and fairly reviewed in the military courts, then the district court was proper in not considering those issues. Likewise, if a ground for relief was not raised in the military courts, then the district court must deem that ground waived. The only exception to the waiver rule is that a petitioner may obtain relief by showing cause and actual prejudice.
Roberts v. Callahan, 321 F.3d 994, 997 (10th Cir.) (internal citations omitted), cert. denied, 540 U.S. 973 (2003).
It would be easier for a camel to go through the eye of a needle than for a military habeas case to slip into that gap between complete deference and waiver.
So it was heartening to read the Solicitor General's take on the collateral review issue. First, the SG quotes then-Judge Alito to establish that there IS a circuit split:
As one court of appeals recently noted, since this Court's decision in [Burns v. Wilson, 346 U.S. 137 (1953),] "[t]he degree to which a federal habeas court may consider claims of errors committed in a military trial has * * * been the subject of controversy and remains unclear." Brosius v. Warden, U.S. Penitentiary, 278 F.3d 239, 242 (3d Cir.) (Alito, J.), cert. denied, 537 U.S. 947 (2002).
SG's Brief in Opp at 11.
The SG then assures us that despite that circuit split,
courts of appeals have . . . been in broad agreement on two principles. First, the courts of appeals have generally held that, where the claims at issue have already been considered by the military courts, only claims involving fundamental or substantial constitutional errors are cognizable on collateral review. See, e.g., Bowling v. United States, 713 F.2d 1558, 1561 (Fed. Cir. 1983) (explaining that "the constitutional claims made must be serious ones"a nd "demonstrate convincingly that in the court-martial proceedings there has been such a deprivation of fundamental fairness as to impair due process"); Calley v. Callaway, 519 F.2d 184, 199 (5th Cir. 1975) (stating that "[t]he asserted error must be of substantial constitutional dimension"). Second, the courts of appeals have generally held that, even with regard to such constitutional claims, the decisions of the military courts are entitled to at least some degree of deference. See, e.g., Brosius, 278 F.3d at 245 (stating that "our inquiry in a military habeas case may not go further than our inquiry in a state habeas case" and assuming, for the sake of argument, that the deferential standard of 28 U.S.C. 2254(d) was applicable to the substantive determinations of military courts); Kauffman v. Secretary of the Air Force, 415 F.2d 991, 997 (D.C. Cir. 1969) (explaining that "the test of fairness requires that military rulings on constitutional issues conform to Supreme Court standards, unless it is shown that conditions peculiar to military life require a different rule").
Note two important things. First, applying those two principles would result in a much more searching scope of review than the 10th Circuit applies. As the 10th Circuit noted in one of its leading cases governing habeas review of court-martial cases, if an issue was "given full and fair consideration by the military courts," the the district court "should . . . den[y] the [habeas] petition." Lips v. Commandant, United States Disciplinary Barracks, 997 F.2d 808, 810 (10th Cir. 1993). Worse still, under 10th Circuit case law, "[W]hen an issue is briefed and argued before a military board of review, we have held that the military tribunal has given the claim fair consideration, even though its opinion summarily disposed of the issue with the mere statement that it did not find the issue meritorious or requiring discussion." Watson v. McCotter, 782 F.2d 143, 145 (10th Cir.), cert. denied, 476 U.S. 1184 (1986). So in the 10th Circuit, the barest of CCA brushoffs {e.g., "We find appellant's remaining 10 assignments of error to be without merit") is sufficient to preclude habeas reivew of even the weightiest constitutional issue.
Second, the SG didn't cite ANY 10th Circuit case law. Look at the opposition -- it cites cases from four courts: the 3d, 5th, D.C., and Federal Circuits. Discussing collateral review of court-martial convictions without mentioning the 10th Circuit is a little like discussing contemporary home-run hitters without mentioning Barry Bonds. And the reason is probably the same in both instances: it would be a little bit embarrassing to talk about.
So those of you who represent servicemembers who may ultimately have a habeas case in the 10th Circuit -- and particularly those of you who represent servicemembers in military death penalty cases -- squirrel away this SG opposition; it may prove quite useful if you ever seek cert asking the Supreme Court to review the 10th Circuit's scope of review in military habeas cases.
Thursday, March 22, 2007
New news
The Supreme Court's on-line docket indicates that on 20 March the SG filed his opposition to the New v. Gates cert petition, No. 06-691 -- which includes an issue asking the Supremes to resolve the correct scope of review for Article III courts' collateral review of court-martial convictions. We previously discussed that cert petition here, among other places.
Unfortunately the opp doesn't yet appear to be posted on the SG's web site. If it goes up tomorrow, I'll post a link. But after that I'll be off-line until Wednesday night. If it's not up tomorrow, perhaps one of the other contriubtors can check on Monday and Tuesday.
Unfortunately the opp doesn't yet appear to be posted on the SG's web site. If it goes up tomorrow, I'll post a link. But after that I'll be off-line until Wednesday night. If it's not up tomorrow, perhaps one of the other contriubtors can check on Monday and Tuesday.
Wednesday, March 21, 2007
If Leonard is the most important CAAF case of the century, is Young the least important?
CAAF's docket has been extremely light this term. According to the CAAF web site's scheduled hearings page, CAAF has heard 46 oral arguments so far this term. Another 10 are scheduled in April and May. So it looks like the total case output for the term will be 57 -- the 56 orally argued cases plus United States v. Canchola, 64 M.J. 245 (C.A.A.F. 2007) (per curiam).
How did United States v. Young, __ M.J. ___, No. 06-0505/AR (C.A.A.F. March 21, 2007), make the list of the 57 most important military justice cases of the year?
The principal issue in Young appears to be whether the evidence is legally sufficient where massive amounts of circumstantial evidence demonstrates the accused's guilt. Uhm, yeah. There is also an issue about whether the government presented sufficient evidence that Young possessed some amount of marijuana he didn't also distribute, thus supporting findings of guilty to both a distribution spec and a possession with intent to distribute spec. Again, in an analysis applying the facts to settled law, CAAF says the government presented adequate evidence to support both specs. Finally, CAAF denies relief for post-trial delay of 1,637 days (four years, five months, and twenty-five days) between trial and the CCA's ruling. (Suppressed yawn.)
If CAAF granted review in Young, what must the issues look like in the petitions it denies?
How did United States v. Young, __ M.J. ___, No. 06-0505/AR (C.A.A.F. March 21, 2007), make the list of the 57 most important military justice cases of the year?
The principal issue in Young appears to be whether the evidence is legally sufficient where massive amounts of circumstantial evidence demonstrates the accused's guilt. Uhm, yeah. There is also an issue about whether the government presented sufficient evidence that Young possessed some amount of marijuana he didn't also distribute, thus supporting findings of guilty to both a distribution spec and a possession with intent to distribute spec. Again, in an analysis applying the facts to settled law, CAAF says the government presented adequate evidence to support both specs. Finally, CAAF denies relief for post-trial delay of 1,637 days (four years, five months, and twenty-five days) between trial and the CCA's ruling. (Suppressed yawn.)
If CAAF granted review in Young, what must the issues look like in the petitions it denies?
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