Where's Crawford

SCOTUSBLOG is reporting that the Supreme Court granted review in 17 cases today. After reviewing the list, I noticed that the Court did not grant review in the Missouri case in which the State asked the Court to settle the split in the state courts over whether lab reports prepared by at the request of law enforcement are testimonial.

This is an important issue and one that state, federal, and military courts are facing on a daily basis. So for the immediate future at least, judges and counsel will still have to grapple with the question without help from SCOTUS.

That means the CAAF will be on its own when it decides the following case, scheduled for oral argument on 6 November.

United States v. Josh R. Harcrow, No. 07-0135/MC
(Appellee) (Appellant)

Counsel for Appellant: Maj Jeffrey S. Stephens, USMC
Counsel for Appellee: Capt James W. Weirick, USMC

Case Summary: GCM conviction of AWOL, possession of drug paraphernalia, cocaine and heroin, use of methamphetamine and cocaine, manufacturing methamphetamine, and escaping custody. Granted issue questions whether the lower court erred by finding that two Virginia state forensic laboratory reports were not testimonial hearsay under Crawford v. Washington, 541 U.S. 36 (2004).

CAAF Oral Arguments

On Monday 1 October and Tuesday 2 October, CAAF will hear the first four oral arguments of the new term. For those in the DC area who are able to get to the courthouse, there are some interesting issues being argued, although some are a bit esoteric.

Here is the schedule as taken from the CAAF web site

Monday, October 1, 2007

9:00 a.m.: Jacob Denedo v. United States, No. 07-8012/NA
(Appellant) (Appellee)

Counsel for Appellant: Matthew S. Freedus, Esq.
Counsel for Appellee: LCDR Paul D. Bunge, JAGC, USN

Case Summary: 1998 SPCM conviction for conspiracy to commit larceny, and larceny. Court of Criminal Appeals denied Appellant’s petition for extraordinary relief in the nature of writ of error coram nobis. Appellant’s writ-appeal raises the issue of whether his guilty plea was involuntary due to constitutionally ineffective assistance of counsel and affirmative misrepresentations regarding the deportation consequences of his plea. Oral argument will focus on whether the Court has jurisdiction over this writ-appeal petition, and if so, whether the Court is in a position to address the merits of the appeal without further fact-finding.

For those of you who have been following the debate over at CAAFlog on the CAAF's All Writs Jurisdiction after Clinton v. Goldsmith, this case will test the limits of that jurisdiction.

Followed by: United States v. Robert J. Medina, No. 07-0096/AR
(Appellee) (Appellant)

Counsel for Appellant: Maj Teresa L. Raymond, JA, USA
Counsel for Appellee: Capt Adam S. Kazin, JA, USA

Case Summary: GCM conviction for possession and transportation of child pornography, coercing a minor to produce child pornography, indecent acts with a minor, and disobedience. Army Criminal Court of Appeals amended the findings of child pornography specifications from Clause 3 violations of Article 134, UCMJ, to Clause 2 violations under United States v. Martinelli. The specified issue is whether the action of the Army Criminal Court of Appeals amending the findings adds an element to the offenses in violation of Apprendi v. New Jersey, Jones v. United States, and Schmuck v. United States.

I'm somewhat puzzled by this case. It appears the ACCA affirmed the LIO of service discrediting conduct under clause 2 of Article 134, rather than the clause 3 offense, but added that service discrediting language to the spec. it seems that doing so is harmless, unless the judges at CAAF have something else up their sleeves.

Tuesday, October 2, 2007

9:00 a.m.: United States v. Rickie E. Parrish, No. 07-0079/AR
(Appellee) (Appellant)

Counsel for Appellant: Capt Richard P. Pizur, JA, USA
Counsel for Appellee: Capt Mark E. Goodson, JA, USA

Case Summary: GCM conviction for sodomy and indecent acts with a child. Granted issue is whether the Army CCA properly exercised its fact-finding power under Article 66, UCMJ, in resolving the question of whether the Government violated a material term of Appellant’s pretrial agreement despite conflicting affidavits.

NOTE: Counsel for each side will be allowed 15 minutes to present oral argument in this case.

Followed by: United States v. Anthony Brown, No. 07-0286/AR
(Appellee) (Appellant)

Counsel for Appellant: Frank J. Spinner, Esq.
Counsel for Appellee: Capt Clare L. O'Shaughnessy, JA, USA

Case Summary: GCM conviction of indecent assault, violation of orders and adultery. Granted issue is whether the military judge erred by instructing the members that they could convict Appellant of indecent assault, a lesser included offense of rape, without voting on each of the three separate factual scenarios, which constituted duplicitous pleading.

NOTE: Counsel for each side will be allowed 15 minutes to present oral argument in this case.

Continuance for New Counsel

In a well-written and well-analyzed opinion, the Army Court of Criminal Appeals sustains the military judge's decision to deny a continuance in a murder case so that civilian counsel, a former military judge, could be read into the case. United States v. Lucero, No. 20020869 (A. Ct. Crim. App. Sep. 17, 2007).

Bleak House

As the rest of you English majors will remember, Charles Dickens' Bleak House is, in part, the saga of Jarndyce v. Jarndyce, a seemingly never-to-be decided case in England's Chancery. On 30 August, the Navy released for publication its own version, United States v. Davis, No. 9600585 (N.M. Ct. Crim. App. Aug. 30, 2007).

LCDR Davis was convicted in 1995 on mixed pleas of rape and forcible sodomy of a child under 16, rape and forcible sodomy, taking indecent liberties and committing indecent acts with a child under 16. He was sentenced to confinement for life. The case has been to CAAF twice and the NMCCA was reviewing the case again after a rehearing on the sentence. His approved sentence is now 20 years.

The only issue of interest is whether the military judge erred by limiting the sentencing evidence to what existed prior to the date of trial. The NMCCA finds error but refuses to grant relief because the appellant invited the error.

Colonel Murphy Update

The Air Force Times is reporting that the prosecution withdrew 9 of the 22 specifications alleged against Colonel Michael Murphy, the disbarred former commander of the Air Force Legal Operations Agency. Colonel Murphy has since waived the Article 32 investigation.

It appears the Air Force prosecutors may have come to their senses.

Moreno Redux Revisited

United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006), is the case that keeps on giving. As we recall, the case established a presumption of excessive post-trial processing delays that failed to meet a certain timeline. You will also recall that CAAF held that defense delays at the appellate level may be attributable to the Government unless the Government could show that the appellant concurred in the delay. Apparently as a result, the Air Force Court of Criminal Appeals implemented Rule 24.1(b)(3) which requires the third and any other requests for enlargement of time filed by defense counsel to be accompanied by a statement as to whether the client concurs in that request for enlargement of time.

It appears that the Air Force Appellate Defense shop is challenging that rule. In United States v. Roach, No. S31143 (A.F. Ct. Crim. App. Sep. 13, 2007), counsel requested a 4th enlargement without stating whether his client concurred. The AFCCA denied the enlargement and proceeded to review the case. The defense later submitted a request for enlargement out of time in which the counsel claimed his client now allows counsel to submit all necessary enlargements and that his counsel may have been ineffective during post-trial stages of his case.

I smell a rat.

In a per curiam opinion, the court finds no ineffective assistance of counsel. Because the limited nature of the record--a short guilty plea--the court decides there was nothing meritorious in the record and it wasn't ineffective assistance not to file a merits petition because the court reviews the case anyway under Article 66.

Truly amazing. Shouldn't there have been some investigation to decide if there might have been some meritorious issue and whether the defense counsel was ineffective?

I realize defense counsel doesn't like the AFCCA's rule, but I think they are playing a rather dangerous game of chicken with the AFCCA. I would like to see the officer efficiency report on an attorney who is guilty of ineffective assistance. And not filing an appeal on time causing an accused's case to go down in flames in cause for a complaint to the bar of the state that licensed the attorney.

This may be an interesting case unless CAAF decides to take the easy way out and deny review.

An Opportunity Missed

SrA Perez pled guilty to disobeying an order and assault consummated by a battery. A military judge also convicted him of rape. The judge sentenced SrA Perez to a BCD, confinement for 18 months, and reduction to E-1--that must have been some rape or some judge to garner such a light sentence for such a serious offense. United States v. Perez, No. 36799 (A.F. Ct. Crim. App. Sep. 12, 2007).

After trial but before the record was authenticated, the legal office learned that the victim of the rape may have recanted. Rather than contact the judge, which they should have done, the legal office decided to conduct an investigation. By the time the investigation was completed the judge had already authenticated the record. The convening authority ordered the military judge to determine two issues: (1) Whether or not credible evidence existed that the alleged victim had recanted her in-trial testimony; and (2) Whether, if recanted, it amounted to "new evidence" which meets the R.C.M. 1210 standard for a new trial. The trial judge answered both questions affirmatively, but decided that the convening authority need to know more than he asked. The military judge noted that based on the new evidence he would have acquitted the accused of rape and would have sentenced him to confinement for 6 months, reduction to E-1, and total forfeitures, and no BCD.

Apparently under R.C.M. 1107(c)(2)(A), the convening authority disapproved the finding of guilty to the rape charge and apparently under R.C.M. 1107(d)(2), reassessed the sentence to a BCD, confinement for 206 days, and reduction to E-1 (the max confinement was for 12 months). R.C.M. 1107(d)(2), provides that "[t]he convening authority shall approve that sentence which is warranted by the circumstances of the offense and appropriate for the accused."

The Air Force Court of Criminal Appeals makes an interesting observation:

In reassessing a sentence, the only guidance (although not on point) provided to the convening authority is found in R.C.M. 1007. That Rule, and specifically R.C.M. 1107(e)(1)(B)(iv), provides the convening authority with an avenue to forego a rehearing after a superior authority has disapproved some of the findings of guilty based upon prejudicial error. Reasessment is appropriate only when the convening authority determines that the sentence would be at least a certain magnitude had the prejkudicial error not been committed and the reassesses sentence is appropriate in relation to the affirmed findings.

The AFCCA then claims that the "convening authority had the benefit of knowing exactly what the sentencing authority would have done, but he reassessed a sentence greater than that which the sentencing authority would have imposed absent the error (new evidence)." The court then asserts that the convening authority should have ordered a sentencing rehearing or reassessed the sentence to that which the military judge would have applied. So the court corrects the "error" by affirming only so much of the sentence as provides for confinement for 6 months and reduction to E-1.

(1) Strange that after noting the dearth of case law on such an issue, the court decided not to publish this case.

(2) The court suggests the only guidance found in the MCM is R.C.M. 1107(e)(1)(B)(iv), and that it isn't really on point. But R.C.M. 1107(c)(2)(A) and (d)(2) appear to be on point, and the court fails to discuss why they aren't. R.C.M. 1107(c)(2)(A) provides that the may in his sole discretion set aside a finding of guilty and "shall approve the sentence that is warranted by the circumstances of the offense and appropriate for the accused." I'm not sure where they get the authority to decide differently.

By Your Leave

A military judge accepted an accused's plea by exceptions that was ambiguous. The specification stated as follows:

In that Private Michelle S. Karajman, U.S. Army, did, at or near Fort Riley, Kansas, on or about 30 April 2006, behave herself with disrespect towards Second Lieutenant [(2LT)] David Cook, her superior commissioned officer, then known by the accused to be her superior commissioned officer, by telling the said Second Lieutenant Cook to, “get the fuck out of my face,” or words to that effect, and by throwing a package of cigarettes at the said Second Lieutenant Cook.

The defense counsel entered the following plea: “Guilty, except the words, ‘by...at the said Second Lieutenant Cook.’ To the excepted words, Not Guilty.” Although the word by appears 3 times in the specification, the judge never clarified which "by" the defense counsel was referring to, and found her "[g]uilty, except the words ‘by...at the Second Lieutenant Cook.’ Of the excepted words, Not Guilty.”

The Army Court of Criminal Appeals set aside the conviction, but affirmed the sentence after performing a Sales analysis. United States v. Karajman, No. 20061003 (A. Ct. Crim. App. Sep. 10, 2007).

CAAF Grants Petitions

In yesterday's Daily Journal, CAAF announced grants of review on the following issues:

No. 05-0159/AR. U.S. v. Jeremy T. WILCOX. CCA 20000876. Review granted on the following specified 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.


No. 07-0555/AR. U.S. v. Daniel ORTIZ. CCA 20040672. Review granted on the following issue:

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.


No. 07-0612/AR. U.S. v. Brandon M. DACUS. CCA 20050404. Review granted on the following issue:

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.


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.

The ACCA opinions in Ortiz and Dacus are not available on the Army's website. Me thinks that may mean the ACCA handled these case in summary dispositions. Perhaps some of the Army practitioners can enlighten us on the facts of those cases.

Air Force Posts Cases

The Air Force Court of Criminal Appeals posted 26 cases on its web site--8 of the cases are merits, the rest unpublished. The cases were issued between 20-31 August.

There is nothing of much substance in any of these cases. Most are per curiam, even if 4 or 5 pages in length.

You will find the cases here.

Wild Blue Yonder

The Navy and the Air Force post their unpublished opinions, other than summary dispositions, with both Westlaw and Lexis. A check of Westlaw and Lexis shows an interesting phenomena. The Navy cases get posted right away. The Air Force has posted several cases on their web site dated August 2007 but none appear on Westlaw or Lexis yet.

I know this is the summer, but let's get it going AF. You haven't posted any cases on your web site in the last two weeks. I know the judges must have been turning out some cases.

Of course, the Army web site is a disaster. They hardly post any cases there. They have posted only 2 unpublished opinions so far in August. Perhaps they are posted at Army Knowledge Online, that seems to be the way the Navy is doing it.

Don't you have some obligation to make them available on a public web site?

New Grant

In its Daily Journal for 28 August, CAAF announced a new petition grant:

07-0519/AR. U.S. v. Luis A. AGUILAR. CCA 20021439. Review granted on the following issue:

WHETHER, IN LIGHT OF CRAWFORD v. WASHINGTON, 541 U.S. 36 (2004), THE ARMY COURT OF CRIMINAL APPEALS COMMITTED REVERSIBLE LEGAL ERROR BY AFFIRMING THE ADMISSION OF TESTIMONY BY A SEXUAL ASSAULT NURSE EXAMINER, WHO SERVED AS A CONDUIT FOR THE INADMISSIBLE HEARSAY STATEMENTS OF AN ABSENT BUT AVAILABLE VICTIM.


This is another case in which I was unable to find the opinion of the CCA. Was it a summary disposition?

Preemptive Strike?

In United States v. Lacy, NMCCA 200600273 (N.M. Ct. Crim. App. Aug. 21, 2007), the prosecutor challenged the only African-American on the court panel. The defense objected.

The CCA's opinion refers to the Government's challenge to the member as a "preemptive strike" and a "preemptory challenge." The correct term is, of course, peremptory challenge. Preemptive relates to a military strike made so as to gain the advantage when an enemy strike is believed to be imminent. Peremptory means not allowing contradiction or refusal. In other words, a challenge that is granted without giving reason.

I was also struck by the analysis of that challenge.

Following a defense objection to the challenge, the Government factually cited to Petty Officer Riley’s prior legal experience, familiarity with the urinalysis collection program, and the fact that she had been a victim of a theft, identity fraud, and rape. Record at 253. The military judge observed that the reasons offered by the Government were justifications normally applicable to a defense preemptory challenge, but acknowledged that “some of the reasons” were valid, non-Batson type bases for challenge and overruled the defense objection. Id. at 257.

. . . .

In essence, trial counsel’s factual reasons simply cannot be “unreasonable, implausible, or otherwise make no sense.” United States v. Tulloch, 47 M.J. 283, 287 (C.A.A.F. 1997). The rationale must be something more factual than a simple assertion of good faith. Id. at 288.

. . . .

The appellant’s focus on the ultimate quality of the trial counsel’s rationale is misplaced. As we observed in Thomas, one doesn’t have to have a “good reason” for a preemptory challenge, only an honestly held non-racial reason. [United States v. ]Thomas, 40 M.J. [726,] 730[ (N.M.C.M.R. 1994)]. The trial judge had the opportunity to observe and listen to the trial counsel’s explanation. Ultimately, it is the sincerity of the trial counsel’s factual articulation rather than the quality of his rationale that is at issue.

Furthermore, as the defense contends, the judge never decided which if any of the proffered reasons was valid. I doubt this will play well at CAAF. Thomas is no longer the law and hasn't been for the past 10 years since Tulloch.

Sentence Reassessment

In two 25 August postings, CAAFlog has interesting discussions on Navy cases concerning sentence reassessment. United States v. Ryan, No. NMCCA 200401577, slip op. at 8 (N-M. Ct. Crim. App. March 29, 2007) and United States v. Bredschneider, __ M.J. ___, No. NMCCA 200700025 (N-M. Ct. Crim. App. Aug. 23, 2007). In the past CAAFlog has criticized the so-called Sales/Peoples standard. So has Sacramentum.

I think it is time we discuss not only what the standard is, but what it should be. But first, some history might be helpful.

We start with the habeas case of Chester Jackson. Jackson v. Taylor, 353 U.S. 569 (1957). Jackson was a soldier stationed in Korea who was convicted, with two others, of premeditated murder and attempted rape. He was sentenced to life in prison, as were his co-accused. The Army Board of Review found the murder convictions unsupported in law and fact, upheld the attempted rape convictions, and affirmed sentences that included confinement for 20 years, the maximum authorized for attempted rape. The Court of Military Appeals affirmed and all three filed habeas corpus petition in federal court. The three accused were confined in separate facilities in different states. The petitioner, Jackson claimed attacked “the sentence of the board alleging that 'the action of the Review Board in reserving twenty (20) years of the life sentence imposed by the Court-Martial for the crime of murder, even though it had reserved and set aside the conviction, was null and void.'” Id. at 571. The district and circuit court of appeals rejected Jackson’s claim, but one of his co-accused prevailed on the same issue in a different circuit. The Supreme Court granted certiorari to resolve the conflict on the “gross sentence” question.

Jackson’s argument went something like this: The law officer told the members that they could sentence the accused to death or life in prison. As he was sentenced to life in prison on the murder charge, he was not sentenced on the attempted rape. As the murder charge was dismissed, he should have a rehearing on the sentence or be released because the ABR did not have authority to sentence him. The Supreme Court affirmed the lower court’s denial of his petition.

Petitioner objects, however, that the board of review should not have imposed the maximum sentence for attempted rape because the court-martial might have imposed a lesser sentence had it considered the matter initially. But this is an objection that might properly be addressed to Congress. It has laid down the military law and it can take it away or restrict it. The Congress could have required a court-martial to enter a sentence on each separate offense just as is done in the civilian courts. The board of review would then know the attitude of the court-martial as to punishment on each of its findings of guilt. But this the Congress did not do. The argument, therefore, falls since it is based on pure conjecture. No one could say what sentence the court-martial would have imposed if it had found petitioner guilty only of attempted rape. But Congress avoided the necessity for conjecture and speculation by placing authority in the board of review to correct not only the findings as to guilt but the sentence as well. Likewise the apportionment of the sentence that the court-martial intended as between the offenses would be pure speculation. But because of the gross sentence procedure in military law we need not concern ourselves with these problems. Military law provides that one aggregate sentence must be imposed and the board of review may modify that sentence in the manner it finds appropriate. To say in this case that a gross sentence was not imposed is to shut one's eyes to the realities of military law and custom.

Finally the petitioner suggests that the case should be remanded for a rehearing before the court-martial on the question of the sentence. We find no authority in the Uniform Code for such a procedure and the petitioner points to none. The reason is, of course, that the Congress intended that the board of review should exercise this power. This is true because the nature of a court-martial proceeding makes it impractical and unfeasible to remand for the purpose of sentencing alone. Even petitioner admits that it would now, six years after the trial, be impractical to attempt to reconvene the court-martial that decided the case originally. A court-martial has neither continuity nor situs and often sits to hear only a single case. Because of the nature of military service, the members of a court-martial may be scattered throughout the world within a short time after a trial is concluded. Recognizing the impossibility of remand to the same court-martial, petitioner suggests as an alternative that the case should be remanded for a rehearing before a new court-martial. He admits that it would now be impractical for such a new court-martial to hear all of the evidence, and that the court would have to make its sentence determination on the basis of what it could learn from reading the record. Such a procedure would merely substitute one group of nonparticipants in the original trial for another. Congress thought the board of review could modify sentences when appropriate more expeditiously, more intelligently, and more fairly. Acting on a national basis the board of review can correct disparities in sentences and through its legally-trained personnel determine more appropriately the proper disposition to be made of the cases. Congress must have known of the problems inherent in rehearing and review proceedings for the procedures were adopted largely from prior law. It is not for us to question the judgment of the Congress in selecting the process it chose.

Id. at 578-80 (emphasis added) (footnotes and citations omitted).

Nearyly 30 years later, in United States v. Suzuki, 20 M.J. 248, 249 (C.M.A. 1985), Chief Judge Everett wrote the following:

However, when prejudicial error has occurred in a trial, not only must the Court of Military Review assure that the sentence is appropriate in relation to the affirmed findings of guilty, but also it must assure that the sentence is no greater than that which would have been imposed if the prejudicial error had not been committed. Only in this way can the requirements of Article 59(a), UCMJ, 10 U.S.C. § 859(a), be reconciled with the Code provisions that findings and sentence be rendered by the court-martial, see Articles 51-52, UCMJ, 10 U.S.C. §§ 851 and 852, respectively.

The following year, writing for Court, Chief Judge Everett said the following:

Although reassessment does not provide the accused an opportunity to be present or to offer new evidence in mitigation and extenuation, this procedure complies with constitutional requirements, see Jackson v. Taylor, 353 U.S. 569 (1957) and it has often been employed by Courts of Military Review without criticism from this Court. Of course, if the error at trial was one of constitutional magnitude, then it would seem necessary that the Court of Military Review should be persuaded beyond a reasonable doubt that its reassessment has rendered harmless any error affecting the sentence adjudged at trial. Cf. United States v. Ramai, 19 M.J. 229(C.M.A. 1985); see Chapman v. California, 386 U.S. 18 (1967).

United States v. Sales, 22 M.J. 305, 307 (C.M.A. 1986).

So there must be some ideas out there. Should every case in which the sentence needs to be reassessed be sent back to a trial court? Is that a good reason to go to judge alone sentencing? Should we just keep on with the Suzuki/Sales doctrine? Should we adopt the Jackson v. Taylor doctrine? Or is there some better idea out there?

Fox in the Henhouse

The Military Times website reports here that TSgt Jeffrey Carlson, the NCO in charge of the Air Force Academy's Alcohol and Drug Abuse Prevention and Treatment Program pled guilty to using ecstasy and soliciting another person to purchase drugs. The article claims he was sentenced to confinement for 24 months, total forfeitures, and reduction to E-1. It doesn't say whether he received a punitive discharge.

Missing Millions

The Military Times website is reporting the indictment of an Army Major and his wife in federal court on charges of bribery, conspiracy, money laundering and obstruction, for taking bribes from Defense Department contractors in 2004 and 2005. The indictment claims they took at least $9.6 million in bribes while Cockerham was stationed in Kuwait and responsible for contracts for Defense Department services, including bottled water for soldiers in Kuwait and Iraq.

Lt Col Jordan Revisited

On 20 August I reported that the military judge dismissed some of the most serious charges against Lt Col Jordan, alleging involvement in the Abu Ghraib scandal.

In today's Washington Post, Dana Millbank, somewhat of a loose cannon, announces another bad day for the prosecution. It is worth a quick read. Even the prosecution's witnesses claim Lt Col Jordan had nothing to do with the abuse of detainees. It appears he never saw any of the abuse either.

Dismissal of Charges

The GCMCA's order dismissing the charges against L/Cpl Justin Sharratt has been passed around in Navy-Marine Corps circles. Not knowing how to attach a document to a blog, and unable to copy and paste it into this document, I sent a copy off to Colonel Sullivan at CAAFlog for possible posting on his new website: caaflog.com.

The letter attached to the order addressed to L/Cpl Sharratt is very interesting. It is not an apology, but a reiteration of Marine Corps values and recognition of the difficult choices Marines are required to make in combat every day. It ends with the following:

"And as you have always remained cloaked in the presumption of innocence, with this dismissal of charges, you remain in the eyes of the law - and in my eyes - innocent."

I have to admit I have never seen anything like this before. Perhaps others have.

If Colonel Sullivan posts it on the web, it is worth reading the entire document.

Sentence Rehearing

The NMCCA returned the appellant’s case for a rehearing on the sentence. The appellant claims that the military judge erred in not finding that the Government’s failure to convene the rehearing within 120 days violated R.C.M. 707. The Government comes up with a rather brazen defense— “the novel procedures involved in accomplishing a sentence-only rehearing after more than 5 1/2 years since the original trial date, and not due to bad faith or neglect on their part.” Oh, so all the delays in the original case were not due to neglect. And what exactly is novel about a rehearing on sentence. It’s not as if they have to go looking for the record of trial. It was returned with the order to hold a rehearing. In defense of the Government, they did as the Navy-Marine Corps Appellate Review Activity for an extension and it was granted. Citing R.C.M. 707(c)(1), the NMCCA says that was error. Because the charge was still referred, the Government should have asked the military judge for the extension. That’s what the rule says, but I wonder if it was really meant to apply to rehearings when you have to go find the accused and bring him back on active duty etc.

Regardless, the NMCCA determines no relief is necessary for this dirtbag—he took nude photos of an 18-month old child. So his BCD stands. Not much of a sentence for a pervert.

United States v. Sorenson, NMCCA 200001969 (N.M.C.C.A. Aug. 9, 2007).

"Especially Troubling" Fine

The appellant was sentenced to a dismissal, confinement for 1 year, total forfeitures, and a fine of $10,000 after pleading guilty to two specifications of attempting to persuade or entice minors under the age of 16 to engage in sexual activity. The appellant claimed the fine was inappropriately severe in light of the total forfeitures, and violated the “Excessive Fines” clause of the Eighth Amendment to the Constitution. The NMCCA disagreed but granted relief anyway. It disapproved the fine.

The military judge advised the appellant that he could be sentenced to forfeitures and a fine, but his PTA just said that the convening authority could approve forfeitures or a fine as adjudged. The NMCCA concluded that this creates a “clear ambiguity" as to whether the convening authority was authorized to approve both forfeitures and a fine. The court goes on to say that the judge was required to get the accused to acknowledge that his financial liability could exceed total forfeitures. The NMCCA finds this “especially troubling” because of the ambiguity in the PTA. Despite how troubling this all is to the court, they find it does not make his plea involuntary.

Had the accused claimed he misunderstood or was misled, I might be sympathetic. But the accused never claimed that he misunderstood or was misled as to the maximum punishment. So how and to whom is it ambiguous. And in light of his confinement he was going to forfeit all of his pay and allowances by statute. I just don’t see the logic of this opinion.

United States v. Norman, NMCCA 200700042 (N.M.C.C.A. Aug. 8, 2007).

Seaman Mitchell--Panderer

Seaman Mitchell is one of the pillar's of the Navy. On a couple of occasions he tried to force his girlfriend to have sex with some of his shipmates while he watched. She refused. On one occasion, after she refused, he told her repeatedly that "she was 'going to do it' and 'tomorrow’s the day'. The next morning, DS testified that she approached SN Adhemar to have sex with her. She indicated that she just wanted to get it over with, so the appellant would not hound or hit her anymore. After acceding to the appellant’s demands to have sex with SN Adhemar, DS testified that the verbal abuse by the appellant increased significantly."

The appellant contended that his convictions for pandering and attempted pandering violated his constitutional right to privacy under the Supreme Court's decision in Lawrence v. Texas, which held unconstitutional a Texas statute that criminalized consensual sodomy between adults. The NMCCA took the issue seriously--and denied the claim.

United States v. Mitchell, NMCCA 200602365 (N.M.C.C.A. Aug. 7, 2007)

NMCCA Issues Opinions

Today the NMCCA released 15 opinions. Although this may have been discussed earlier on CAAFlog, the Navy-Marine Corps Court appears to have taken a page from Judge Crawford's book on how to fix the problems with SJARs and perhaps delays. At the top of their opinions, they are now including the name of the SJA who signed off on the SJAR and on the addendum. The other services might think of adopting the same tactic. That may give some SJAs an incentive to see that their cases are handled expeditiously.

Did they also change the font of their opinions? They used to be in courier, but now appear to be in courier new.

U.S. v. Haney

An essential element of the offense of carnal knowledge is that the person with whom the accused committed an act of sexual intercourse was not his or her spouse. Article 120(b)(1), UCMJ. The prosecutor in United States v. Haney, NMCCA 200600631 (N.M.C.C.A. Aug. 7, 2007), should be embarrassed that s/he never presented direct evidence of this fact. Lucky for him or her that the NMCCA was able to find substantial circumstantial evidence to overcome the prosecutor’s deficiency—the young lady was 15; lived at home with her mother who had never met the accused; Appellant referred to her as his girlfriend in his statement to investigators; and in his sworn statement said the acts of intercourse occurred while he was dating her.

The appellant also claimed the military judge should not have allowed the trial counsel to cross-examine defense witnesses about their association with the appellant. As the appellant failed to object at trial, the NMCCA correctly determined that plain error analysis is appropriate. It then declared that if the court finds plain error, the burden shifts to the Government to show that the error was harmless beyond a reasonable doubt. Citing United States v. Carter, 61 M.J. 30, 33 (C.A.A.F. 2005). But Carter was a case in which the trial counsel in sentencing argument commented on the failure of the accused to present evidence. That is a 5th amendment constitutional issue. The trial counsel’s questions in this case are not a constitutional issue, merely an evidentiary issue. Thus, the test the NMCCA should have used was whether the plain error was harmless, not harmless beyond a reasonable doubt.

New CAAF Grant

The Daily Journal for 17 August announced the following grant:

No. 07-0384/MC. U.S. v. Anthony T. HALL. CCA 200600805. Review granted on the following issues:

WHETHER THE LOWER COURT ERRED IN STATING THAT APPELLANT HAD RECEIVED A DISHONORABLE DISCHARGE AT TRIAL, WHEN THE MEMBERS SENTENCED HIM TO A BAD-CONDUCT DISCHARGE, AND THE CONVENING AUTHORITY APPROVED ONLY A BAD-CONDUCT DISCHARGE.

WHETHER THE LOWER COURT ERRED IN FINDING THAT THE MILITARY JUDGE'S DECISION TO ALLOW, OVER DEFENSE OBJECTION, A NONEXPERT NCIS AGENT TO PROVIDE EXPERT TESTIMONY TO THE MEMBERS WAS HARMLESS, WHERE THIS WAS IN VIOLATION OF MILITARY RULE OF EVIDENCE 701(c), AND THE GOVERNMENT HAS CONCEDED THAT THIS TESTIMONY WAS BOTH MATERIAL TO ITS CASE AND WAS OF HIGH QUALITY.

I was unable to find the lower court opinion.

Ooooops!

The New York Times reported today that a military judge dismissed two of the most serious charges against Army Lt. Col. Steven L. Jordan, the only officer charged with abusing detainees at Iraq's Abu Ghraib, after Maj Gen George Fay, the officer who investigated the scandal, told Army prosecutors that he had "misspoke" when he testified during the Article 32 investigation that he had advised Jordan of his rights during an interview in 2004. "In that 2004 interview, Jordan had told Fay he never saw detainees being abused and never saw nude detainees."


Wow! Now, after all that time, the General decides he didn't advise the guy of his rights? And "misspoke" is rather an interesting choice of words. If you misspeak, you correct it soon thereafter. So how is it that he waited all of this time to correct the error?

It looks like the general won't have to testify now.

CAAF Grants

As CAAFlog noted, this evening CAAF released its Daily Journal for Thursday, 16 August noting the granting of six petitions for review--2 of the cases are from the Coast Guard.

In United States v. Holbrook, No. 1251 (C.G.C.C.A. Jan. 10, 2007), the accused was convicted of fraudulent enlistment in violation of Article 83, UCMJ. CAAF granted on the following issue:

No. 07-0350/CG. U.S. v. Tom K. HOLBROOK. CCA 1251. Review granted on the following issue:

WHETHER APPELLANT'S PLEA TO FRAUDULENT ENLISTMENT (CHARGE I) WAS IMPROVIDENT BECAUSE THE MILITARY JUDGE FAILED TO ELICIT FACTS SUFFICIENT TO ESTABLISH THAT APPELLANT KNEW HE LIED ABOUT A MATERIAL FACT RELEVANT TO HIS QUALIFICATIONS FOR ENLISTMENT.

He raised the same issue before the CCA. He is claiming that the military judge was required to get him to admit that he knew the lies he told the recruiter were material when he made them--"at the time he knowingly made false statements to the recruiter, Appellant was not certain that truthful answers would prevent him from enlisting."

The element of the offense in question reads as follows:

That the accused knowingly misrepresented or deliberately concealed a certain material fact or facts regarding qualifications of the accused for enlistment or appointment.

Its hard to believe that any judge would believe that this element requires that the accused know he is lying about a material fact. The accused just has to know he is lying. For the plea to be provident, an accused must acknowledge that the false information he provided to the recruiter was material--would have affected the decision to approve his enlistment or would have changed how his enlistment was handled (perhaps more investigation or requiring a waiver)--but there is no requirement that the accused know the information is material at the time he makes the false statements.

As CAAFlog would say: EGAD!

Another CAAF Grant

The Daily Journal for 15 August contains the following grant:

No. 07-0597/AF. U.S. v. Manuela Del Carmen SCOTT. CCA 36514. Review granted on the following issue:

WHETHER THE ADDENDUM TO THE STAFF JUDGE ADVOCATE'S RECOMMENDATION CONTAINS "NEW MATTER" NOT PROVIDED TO DEFENSE COUNSEL FOR COMMENT, NECESSITATING A NEW CONVENING AUTHORITY ACTION IN THIS CASE.

The AFCCA's opinion in this case can be found here.

That opinion is not of any help as it summarily--in one sentence--disposes of the issue.

Trailer Cases Docketed

In the Daily Journal for 14 August, the CAAF reported the following two cases were docketed:

No. 06-0906/AF. U.S. v. Samir S. CHRISTIAN. CCA 35905. Review granted on the following issues:

WHETHER APPELLANT'S CONVICTION FOR VIOLATING ARTICLE 125, UCMJ, BY ENGAGING IN SODOMY WITH RJM MUST BE SET ASIDE IN LIGHT OF LAWRENCE v. TEXAS, 539 U.S. 558 (2003), AND UNITED STATES v. ZACHARY, 63 M.J. 438 (C.A.A.F. 2006).

WHETHER APPELLANT'S GUILTY PLEA TO SPECIFICATION 2 OF CHARGE III WAS IMPROVIDENT BECAUSE THE MISTAKE OF FACT DEFENSE APPLIES TO THE OFFENSE OF KNOWINGLY VIDEOTAPING A MINOR ENGAGED IN ORAL SODOMY.

No briefs will be filed under Rule 25.

No. 06-0932/NA. U.S. v. Javan R. GAINOUS. CCA 200300953. Review granted on the following issues specified by the Court:

WHETHER THE DICTA IN UNITED STATES v. ZACHARY, 63 M.J. 438, 442 (C.A.A.F. 2006), INDICATING THAT THE DEFENSE OF MISTAKE OF FACT AS TO AGE IS A DEFENSE FOR THE CRIME OF SODOMY WITH A CHILD, OVERRULED UNITED STATES v. STRODE, 43 M.J. 29, 31 (C.A.A.F. 1995) (STATING THAT DEFENSE OF MISTAKE OF FACT AS TO AGE WAS NOT AVAILABLE TO STRICT LIABILITY OFFENSE OF SODOMY).

IF MISTAKE OF FACT AS TO AGE IS A DEFENSE FOR THE OFFENSE OF SODOMY WITH A CHILD, WHETHER APPELLANT'S GUILTY PLEA TO THAT OFFENSE WAS PROVIDENT.

No briefs will be filed under Rule 25.

These appear to be trailer cases to United States v. Wilson, No. 06-0870/AR. Wilson case was previously argued on April 30, 2007. Additional briefs were ordered on the issue of whether the defense of mistake of fact as to age is available with respect to a charge of sodomy with a child under the age of 16 under Article 125, UCMJ.

As you probably will recall, Zachary was the case in which a unanimous court held that mistake of fact as to age was a defense to indecent acts with a minor--the LIO of carnal knowledge. But in the court's opinion, Chief Judge Gierke said that the mistake of fact as to age defense also applied to sodomy. The pronouncement was clearly dictum and now hopefully CAAF will say so. I am not sure why they did not decide this case last term.

Mil. R. Evid. 413, 414

Sacramentum has prevailed upon me to join this blog. I will be adding my two-cents worth from time to time, and will be in charge the next week or so while Sacramentum is unavailable--something about a week at the beach to recharge the old batteries. As this is a slow time for CAAF and some of the CCAs, it will give me a chance to get used to this blogging program.

The first issue I want to discuss is one that has been covered in the past to some degree--Mil. R. Evid. 413 and 414 as raised, or not, in a recent NMCCA case, United States v. Rodriguez, NMCCA 200602455 (N.M.C.C.A. Jul. 18, 2007).

Rodriguez was charged with 2 rapes, one in May and the other in October 2005. In each case, the appellant and the victim had engaged in consensual sexual intercourse in his barracks room before the rape. He appealed the military judge's denial of his motion to sever. The NMCCA stated:

Our superior court has summarized the law on severance of charges as follows:

The military justice system encourages the joinder of all known offenses at one trial ([RULE FOR COURTS-MARTIAL 601(e)(2), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2002 ed.)]), and permits a motion for "severance of offenses . . . only to prevent manifest injustice." R.C.M. 906(b)(10). "In general, 'an abuse of discretion will be found only where the defendant is able to show that the denial of a severance caused him actual prejudice in that it prevented him from receiving a fair trial; it is not enough that separate trials may have provided him with a better opportunity for an acquittal.'" [Citations omitted].

To determine whether a military judge has failed to prevent a manifest injustice and denied an appellant a fair trial, we apply the three-prong test found in United States v. Southworth, 50 M.J. 74, 76 ([C.A.A.F.] 1999).

United States v. Simpson, 56 M.J. 462, 464 (C.A.A.F. 2002).

The three-prong test is as follows: (1) whether the evidence of one offense would be admissible proof of the other; (2) whether the military judge has provided a proper limiting instruction; and (3) whether the findings reflect an impermissible crossover. Southworth, 50 M.J. at 76.

When the military judge applied the test a trial, he ruled that one offense would be admissible proof of another under Mil. R. Evid. 404(b) "to refute affirmative defenses of consent/mistake of fact" and as substantive evidence of the other rape pursuant to Mil. R. Evid. 413. But the judge did not allow evidence of one rape to be used to prove the other rape or to refute any defense," the Govt kept the evidence of one rape separate from that of the other, and the judge gave a spillover instruction between evidence of the first offense and evidence of the second--"Proof of one offense carries with it no inference that the guilt – - the accused is guilty of any other offense."

The NMCCA says: "Assuming, without deciding, that evidence of one offense would not be admissible proof of one or more of the other offenses, we conclude that the second and third prongs clearly weigh in favor of the military judge's ruling."

I find two things troubling here. I don't believe the judge should have given the spillover instruction that he gave. Mil. R. Evid. 413 says that the court can consider evidence of a sexual assault "for its bearing on any matter to which it is relevant." While the court members must not convict an accused of one rape just because they believe he committed another, they can consider it to show that he has a propensity to commit such offenses. Thus, the likelihood that he committed one rape is increased because of the evidence that he committed the other. The judge's spillover instruction was overly protective of the accused.

It is also peculiar that the NMCCA took such a weak position on the first prong. The court could have said that the evidence may be used to show an accused has a propensity for committing such acts, and even if not, the other 2 Southworth factors outweighed the first and so the judge did not err in declining to sever.

The NMCCA did not cite to or discuss the CAAF's most recent case on this issue. United States v. Schroder, No. 06-0657 (C.A.A.F. May 31, 2007). Although that case applied Mil. R. Evid. 414, it is essentially the same as 413, except it applies to molestation of children.

Post-Trial Delays

Today, the Navy-Marine Corps Court posted 13 cases, that were issued between 17 and 31 July, to its public website. Most, if not all of these cases have been available on NKO for some time.

In United States v. Wiest, No. 200700024 (N.M. Ct. Crim. App. Jul. 31, 2007), the NMCCA was faced with a case that had taken 2,734 days (about 90 months, or 7 1/2 years) from announcement of sentence until docketing at the court. That's right, docketing, not decision by the AFCCA. The sentence was adjudged on 2 August 1999. From sentence announcement to decision was two days short of 8 years.

A military judge sitting as a general court-martial convicted the appellant, pursuant to his pleas, of thirteen specifications of larceny and three specifications of forgery, in violation of Articles 121 and 123, Uniform Code of Military Justice, 10 U.S.C. §§ 921 and 923. The appellant was sentenced to confinement for thirty months, forfeiture of all pay and allowances, reduction to pay grade E-1, and a dishonorable discharge.

The court first examines the appellant's sentence and determines it is not unduly severe and in fact "richly warranted." The court explains its decision by quoting United States v. Usry, 9 M.J. 701, 703 (N.C.M.R. 1980) (internal citation omitted.

Larceny is commonly recognized at common law as a serious felony crime. . . . Larceny crimes strike at the very heart of society's ability to exist as a community, and this is certainly no less important in a military community. It is commonly recognized that the crime of larceny against a fellow service member takes on even more significance in the military community where the very lives of men at arms often rest upon the complete trust and confidence of their fellow combatants. This trust is emphasized and nurtured in the United States Marine Corps from a Marine's first experiences in bootcamp and throughout his Marine Corps career. Basic to this philosophy is an expectation that your batterymate will not steal from you.

The court then examines the claim of post-trial and appellate delay. It finds the 7 1/2 years to be facially unreasonable and then examines the Barker v. Wingo factors. The NMCCA finds the length of the delay and the reasons for the delay favor the appellant. But the appellant apparently did not complain until he filed his appellate brief and there is no evidence the appellant suffered any prejudice. After balancing the factors, the court concluded there was no due process violation.

And finally, the court considers whether it should exercise its Article 66(c) power to reassess the sentence to give the appellant some relief. The court states that the only meaningful relief available for them to give is to disapproved the DD. They refuse to do that because it "would be an undeserved windfall for the appellant and disproportionate to any possible harm the appellant suffered as a result of the post-trial delay."

In United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006), the CAAF stated that: Absent prejudice, this Court "will find a due process violation only when, in balancing the three other factors, the delay is so egregious that it would adversely affect the public’s perception of the fairness and integrity of the military justice system.” Isn't 7 1/2 years so egregious that it adversely affects the public's perception of the fairness and integrity of the military justice system? But what the CAAF giveth in one hand it taketh away with the other. If there is a violation of due process then you look to see if the violation was harmless beyond a reasonable doubt. United States v. Allison, 63 M.J. 365, 370-71 (C.A.A.F. 2006). Thus, you seem to be back to the question of prejudice

Although I think the CAAF's heart may have been in the right place in trying to force the military to get accuseds the expeditious post-trial and appellate review of their cases they deserve, I believe the court's resolution of the problem is not well thought out.

Article 59(a) states that: "A finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused." How can CAAF suggest that relief is necessary if there is no prejudice. And if there is such a thing as a due process violation if the delay is so egregious it affects the perception of the military justice system, how can a court grant relief when affecting the perception of military justice does not necessarily materially prejudice the substantial rights of the accused."

I also think the situation may be exacerbated by Article 58a and 58b. Article 58a provides that "Unless otherwise provided in regulations to be prescribed by the Secretary concerned, a court-martial sentence of an enlisted member in a pay grade above E-1, as approved by the convening authority, that includes" a punitive discharge, confinement or hard labor without confinement automatically reduces that member to pay grade E-1, effective on the date of that approval. Article 58b provides among other things that a sentence to more than 6 months confinement leads to automatic forfeiture of pay.

Although the NMCCA did not explain why the only meaningful relief would be disapproval of the DD, I take it that it stems from the Article 58a automatic reduction to E-1 and the Article 58b automatic forfeitures. Otherwise, I see no reason the court could not have crafted some relief by disapproving some or all of the forfeitures and some or all of the appellant's reduction in grade. Is there some case or rule that says the CCAs can't mess with automatic reduction or forfeitures?

I believe the delay in Lance Corporal Wiest's case is egregious and outrageous and he deserves some relief. But I don't see how CAAF can order a remedy under the statutory authority under which it operates. Fixing this problem needs congressional action.

Colonel Murphy's Petition

Previous posts noted that Colonel Murphy had petitioned the AFCCA for extraordinary relief in the form of a writ of mandamus, that it had been denied, and a writ-appeal to the CAAF had also been denied. Some Air Force sources had suggested that Colonel Murphy wanted to disqualify the Article 32 investigating officer and all Air Force officers from conducting the investigation. I also complained that the AFCCA opinion was not posted on the AFCCA website when they post all of their opinions, even one-line opinions affirming a merits case.

Today, former Judge Mathews reported that the 13 July AFCCA opinion is now available on the AFCCA website. Thanks, Judge Mathews.

It seems my earlier post reported only part of the story. Colonel Murphy asked the AFCCA to (1) order the Article 32 IO to recuse himself and order the Air Force to appoint a non-Air Force officer to conduct the Article 32; and (2) following action on the petition, for the AFCCA to recuse itself from further participation in his case.

The AFCCA decided it had jurisdiction to consider the petition based on San Antonio Express-News v. Morrow, 44 M.J. 706, 709 (A.F. Ct. Crim. App. 1996). It is interesting that the AFCCA did not feel it necessary to discuss Clinton v. Goldsmith, 526 U.S. 529 (1999), which was decided after San Antonio Express-News. Although that case concerned the jurisdiction of the CAAF, the opinion discussed the limited nature of All Writs jurisdiction for Article I courts. It seems to me that the CCA's are somewhat similarly situated to the CAAF in terms of their jurisdiction. Regardless of what the AFCCA decided, I would have expected the opinion to have at least mentioned the case.

In the AFCCA opinion, there is no discussion of why Colonel Murphy believes the Article 32 officer should recuse himself and a non-AF officer should be appointed to conduct the investigation or why the AFCCA should recuse itself. It is most likely some sort of institutional bias against him, but I am not sure. Regardless, the AFCCA denied the petition

All in all, a pretty disappointing opinion from the AFCCA. In all fairness, the court was probably under the gun to try to get the opinion out without delaying the Articlee 32 investigation.

On the Road Again

The CAAF has announced the first two Project Outreach oral arguments for this term.

Project Outreach -- October 24 -- Indiana University School of Law, Indianapolis, Indiana

Wednesday, October 24, 2007

Time TBD: United States v. Walter S. Stevenson, No. 06-0934/NA
(Appellee) (Appellant)

Counsel for Appellant: LCDR M.E. Eversole, JAGC, USN
Counsel for Appellee: Major Wilbur Lee, USMC

Case Summary: GCM conviction of rape. Granted issues concern whether Naval Criminal Investigative Service and Veterans Affairs personnel violated Appellant’s 4th Amendment rights by seizing his blood without a warrant or probable cause, and if so, whether the Court of Criminal Appeals erred in failing to address or suppress blood/DNA evidence gained by a search warrant issued on tainted evidence and material misrepresentations.

NOTE: This case will be heard as part of the Court’s “Project Outreach” program at Indiana University School of Law-Indianapolis, Indiana.



Project Outreach -- October 25 -- Indiana University School of Law, Bloomington, Indiana

Thursday, October 25, 2007

Time TBD: United States v. Daniel Pack, No. 07-0085/MC
(Appellee) (Appellant)

Counsel for Appellant: LT Kathleen L. Kadlec, JAGC, USN
Counsel for Appellee: Capt Roger E. Mattioli, USMC

Case Summary: GCM conviction for indecent acts with a minor. Granted issue is whether Appellant was denied his right to confrontation in light of Crawford v. Washington when the military judge permitted the alleged victim to testify from a remote location via one-way closed circuit television.

NOTE: This case will be heard as part of the Court’s “Project Outreach” program at Indiana University School of Law-Bloomington, Indiana

Delay in Authenticating ROT

In United States v. Arindain, the appellant complained of post-trial delay--it took 404 days from the date of sentence until the action of the convening authority, over 260 days of which were waiting for the military judge to authenticate a record of trial over 1,600 pages long. The appellant was convicted of unpremeditated murder and was sentenced to life in prison.

The AFCCA correctly noted in n.6 that the Moreno presumption of unreasonable delay if the convening authority fails to act on the case within 120 days of the sentence did not apply to the appellant's case--it only applies to courts-martial completed on or after 10 June 2006. Nevertheless, the court cites the presumption, claims that the 404-day delay certainly raises the presumption, and thus the court has to apply the Barker v. Wingo factors. As the appellant's court-martial was completed before 10 June 2006, the AFCCA should have determined if the delay was "facially unreasonable," before applying the Barker v. Wingo factors. While they may have gotten to the same place, it is important to apply the rules correctly.

After applying the factors, the AFCCA determined that the appellant did not suffer any due process violation in the post-trial processing of his case. The appellant was unable to show any prejudice and, like the AFCCA, I would not grant him any relief. This is a guy who killed the mother of his child and left her body face down in a muddy ditch. Nevertheless, I find it troubling that the judge took 260 days to authenticate the record. The AFCCA notes that the judge was the factfinder, was the chief judge of that judicial circuit, and no doubt had other duties. It cites to the CAAF's decision in Moreno expressing unease with setting a timetable for the deliberative process of the NMCCA. But there is no deliberative process in authenticating an ROT. It should be just reading the record to determine if the court reporter got it right. If corrections had to be made, that would have been noted in the record. Furthermore, the AFCCA acts as if authenticating the record is some kind of lesser duty that is not as important as trying cases or doing whatever chief circuit judges do.

Certainly a military judge could be on leave when the transcript is completed or be in the midst of another case that would justify some delay in authenticating a 1,600 page record. But taking almost 9 months to authenticate an ROT should not be acceptable. Without more, I cannot see how the AFCCA could find the delay in authenticating the ROT "not unreasonable."

AFCCA Posts 33 Opinions

This past week, the AFCCA posted to its website 33 cases it had issued in the previous 3 weeks. Why do they hold the cases for 3 weeks before posting them. Is the staff that busy that they can't be posted once a week?

Of the 33 cases, 2 are published decisions that have already been discussed in CAAFlog. Of the remaining 31 opinions, 14 are merits cases. Of the 17 remaining unpublished decisions, only a few are worth commenting on, which I will do in the next couple of posts.



Be forewarned. The AFCCA opinions now include the signature of the court clerk and the seal of the court. This means they take considerably longer to download, and it is difficult to use the text tool to copy sections of the opinion.

Colonel Murphy at the AFCCA

It now seems apparent that the Air Force Court of Criminal Appeals is purposely suppressing the posting of its opinion in Colonel Murphy's petition for extraordinary relief against the convening authority and the Article 32 investigating officer. It is now several days after CAAF released notification that it had denied the writ-appeal, and several weeks after the writ-appeal was filed at CAAF, and the AFCCA still has not posted its opinion.

In an earlier comment to a posting on CAAFlog, former Air Force Appellate Judge Christopher Mathews noted that not all orders or extraordinary writ decisions are posted on the AFCCA website. Accepting that as true, we still must presume that the AFCCA makes informed choices about which opinions to post and which ones not to post. After all, the AFCCA posts all manner of decisions, including published, unpublished, decisions on writs (Misc. Dkt.), and even cases submitted to the court without assignment of error (Merits) in which the court regularly affirms with a 1 or 2 sentence pro forma opinion. Furthermore, although he didn't fully explain, CAAFlog--a man of not inconsiderable resources--"swung and missed at trying to get information about the writ."

Therefore, I conclude the failure of the opinion to appear on the AFCCA website is purposeful. It may not be surprising in light of the Air Force's prior dealings with JAGs who are accused of wrongdoing.

Army Released 3 Opinions

On 31 July, the Army Court of Criminal Appeals released 3 opinions:

United States v. Eckard, 20010870 (A. Ct. Crim. App. Jul. 31, 2007)
United States v. Callaway, 20050268 (A. Ct. Crim. App. Jul. 31, 2007)
United States v. O'Reilly, 20050681 (A. Ct. Crim. App. Jul. 31, 2007)

Eckard involved the testimony of a DNA tech at USACIL who was accused of contaminating specimens and misrepresenting tests that he had not performed. In this case, the ACCA determined that the evidence was so overwhelming that the admission of Mr. Mills testimony was harmless.

Callaway is not a pretty case. The judge sentenced the accused to forfeiture of 2/3 pay for 10 months. Now I realize that it if a judge is not really concentrating when he/she announces the sentence and the trial counsel is not paying attention, it is not difficult to forget to say "per month." But one would certainly expect that the judge's training would have covered the need to announce forfeitures in whole dollar amounts. R.C.M. 1003(b)(2). Yet every few years we have a crop of such cases.

Although neither Article 34, UCMJ, nor R.C.M. 406 requires the SJA prepare an SJAR for a case that is referred to special court, an Army Regulation does. But the SJA didn't do one in this case. Nevertheless, the ACCA affirmed. The issue is procedural not jurisdictional, the appellant made no motion at trial, waived the issued by pleading guilty.

By the way, the military judge also forgot to assemble the court. Case must have been tried on a Monday.

In O'Reilly, the military judge refused to admit an Article 15 during the sentencing proceedings because it was not properly authenticated. But the judge then allowed the prosecution to present the testimony of the first sergeant and the commander that the appellant had received an Article 15 for missing a movement, and that occurred after he failed to go on 15 different occasions. ACCA found error--Article 15s are admissible at part of his records. Uncharged misconduct unrelated to the offense of which the accused was convicted was not admissible as aggravation evidence--it did not meet the “directly relating to or resulting from” requirement to be admissible under R.C.M. 1001(b)(4). Same for the admission of results of a positive urinalysis. ACCA loped off 1 month of the 4 month confinement sentence.

CAAF Oral Argument Schedule

Today, the CAAF released the following addition to the oral argument schedule.

Tuesday, November 27, 2007

9:00 a.m.: United States v. John R. Larson, No. 07-0263/AF

Counsel for Appellant: Capt Timothy M. Cox, USAF

Counsel for Appellee: Capt Jamie L. Mendelson, USAF

Case Summary: GCM conviction of attempted carnal knowledge, attempted indecent acts, misuse of a government computer, indecent language, and using a facility to entice a minor to engage in sexual activity. Granted issues are: whether the AFCCA erred in holding that Appellant had no reasonable expectation of privacy in his government computer despite the Court’s holding in United States v. Long, 64 M.J. 57 (C.A.A.F. 2006); and whether Appellant was denied the effective assistance of counsel when civilian counsel conceded Appellant’s guilt in his opening statement, during findings, and again in closing argument.

Colonel Murphy 3

The CAAF Daily Journal for Monday, 30 July reports that the Court denied Colonel Murphy's request for a stay of proceedings and an extraordinary writ.

We still have no official information on the nature of the writ. Under the CAAF's rules, we would have expected the petition for extraordinary writ was first submitted to the AFCCA. The AFCCA website has not posted a decision in the Murphy case. In fact, it hasn't posted any cases on its website since 17 July. If it did issue an opinion, it should have been issued before 17 July, because Colonel Murphy petitioned the CAAF on 18 July.

Air Force sources have suggested that Colonel Murphy did petition the AFCCA before CAAF and that the AFCCA issued an opinion, not just a summary denial. These same sources claim that the petition asked the courts to disqualify the investigating officer and to prohibit any Air Force JAG from conducting the Article 32. No further details are available at this time.

Voir Dire Hypos

In the 27 July Daily Journal, the CAAF announced it granted review in No. 07-0495/MC. U.S. v. Amador NIETO, Jr. CCA 200600977. Review granted on the following issue:

WHETHER THE LOWER COURT ERRED WHEN IT HELD THAT THE MILITARY JUDGE DID NOT COMMIT PLAIN ERROR WHEN HE PERMITTED THE TRIAL COUNSEL TO ASK HYPOTHETICAL VOIR DIRE QUESTIONS THAT PRESENTED THE MEMBERS WITH SUCH DETAILED FACTS ABOUT APPELLANT'S CASE THAT THE TRIAL COUNSEL WAS IN EFFECT COMMITTING THE MEMBERS TO RETURN A VERDICT OF GUILTY PRIOR TO THE PRESENTATION OF EVIDENCE, ARGUMENT, AND INSTRUCTIONS.

The NMCCA resolved the issue with a footnote stating without discussion that the issue was without merit. United States v. Nieto, NMCCA 200600977 (N-M. Ct. Crim. App. Apr. 5, 2007).

The latest from the CAAF on this issue follows:

The issue in this case arises from questions propounded to the members in a vacuum, before they heard any evidence or received instructions from the military judge. In United States v. Heriot, 21 M.J. 11, 13 (CMA 1985), this Court stated that it was "sympathetic with the plight of court-martial members who on voir dire are asked hypothetical questions about the sentence they would adjudge in the event of conviction." We expressed reluctance "to hold that a prospective member who is not evasive and admits to harboring an opinion that many others would share -- such as that a convicted drug dealer should not remain a noncommissioned officer or should be separated from the armed services -- must automatically be excluded [**14] if challenged for cause." Id. In United States v. Reynolds, 23 M.J. 292, 294 (CMA 1987), this Court held that neither side "is entitled to a commitment" during voir dire about "what they will ultimately do." See also United States v. Rockwood, 52 M.J. 98, 114 (1999) (Gierke, J., concurring) (military judge should not have allowed voir dire asking for sentencing commitment).

United States v. Rolle, 53 M.J. 187, 191 (C.A.A.F. 2000)

There is not a lot of federal law on this issue. Many of the cases are habeas cases in which an accused contends his counsel was ineffective by not objecting to the prosecutor asking hypothetical questions on voir dire and then getting the members to commit to the answers. The courts typically claim that even if it was error for counsel to not object, the petitioner could not establish prejudice.See, e.g., Boyd v. Delo), 999 F.2d 1286, 1289 (8th Cir. 1993).

But some states have specific rules about hypothetical questions on voir dire.

Under Texas law, when conducting voir dire, "it is proper to pose hypothetical fact situations to explain the application of the law, [but] it is improper to inquire how a veniremember would respond to particular circumstances." Penry v. State, 903 S.W.2d 715, 740 (Tex.Crim.App. 1995) (citing Boyd v. Delo, 999 F.2d 1286, 1289 (8th Cir. 1993), 742 S.W.2d 331, 336 n. 6 (Tex.Crim. App.1987)). In application, this means that "[a] proper [voir dire] question is one which seeks to discover a veniremember's views on an issue applicable to the case." Rhoades v. Texas, 934 S.W.2d 113, 122 (Tex.Crim.App. 1996). In contrast, an improper voir dire question "attempts to commit a veniremember to a particular resolution based upon facts peculiar to the trial." Id. For instance, Rhoades held that it was improper to ask a prospective juror whether he would find good conduct in prison to be a mitigating factor, rather than whether he could find good conduct to be a mitigating factor. See id. at 123.

The prosecution used hypothetical questions to determine if prospective jurors could distinguish between "deliberate" and "intentional" acts, which is a proper area for voir dire examination. See Heiselbetz v. State, 906 S.W.2d 500, 509 (Tex.Crim.App.1995). As the district court found, the vast majority of the prosecution's questions did not require a prospective juror to commit that a specific set of facts constituted a "deliberate" act. Rather, each juror was questioned to determine if he could (not would) find that it was a "deliberate" act to wound a victim with the first shot and then shoot the victim additional times to prevent the victim from identifying his killer. And even in those rare instances where a juror agreed that a defendant acted "deliberately" by shooting a victim multiple times, it is clear from the context of each question that the thrust of the prosecution's examination was to ensure that the juror could distinguish between "intentional" and "deliberate" acts. Thus, Green's counsel's failure to object does not violate the first prong of Strickland because it was perfectly reasonable not to object when the prosecution's evident purpose was to inquire into a valid area of voir dire examination. And even assuming there was deficient performance, Green fails to allege any facts showing prejudice. Under the circumstances of this case, there is no reasonable probability that, but for the failure of the petitioner's trial counsel to object to the prosecution's use of a hypothetical which involved multiple gun shots fired into a robbery victim to illustrate the difference between "intentional" and "deliberate" murder, the outcome of the petitioner's trial would have been different.

Green v. Johnson, 160 F.3d 1029, 1037 (5th Cir. 1998).

Military Commission

Last night, the SCOTUSblog reported new wrangling over the Court of Military Commissions Review (CMCR). It seems Capt Rolph, the acting or deputy chief judge asked for documentation establishing that he was so appointed. DoD said they would get back to him. They did, with a brief. But it isn't clear from the blog if they actually had any written appointment.

Aren't you happy you aren't involved in that fiasco.

Moreno Redux 2

In Thursday's Daily Journal, the CAAF denied Moreno's writ-appeal. As you will all recall, United States v. Moreno established the ground rules for examining post-trial and appellate delay.

Misc. No. 07-8020/NA. Javier MORENO, Appellant v. Paul H. MCCONELL, Military Judge, Lieutenant Colonel, U.S. Marine Corps, Appellee. CCA 200100715. On consideration of the writ-appeal petition and Appellant’s motion to stay proceedings, it is ordered that said motion to stay proceedings is hereby denied, and that said writ-appeal petition is denied.

Ineffective Assistance of Counsel

After the appellant's court-martial, the defense counsel reported to the convening authority that she was unable to prepare a clemency request for the appellant because the accused was listed in desertion status and she had been unable to contact him. United States v. Bowens, NMCCA 200602386 (N-M. Ct. Crim. App. Jul. 18, 2007).

The NMCCA held that telling the substitute convening authority that Appellant was in desertion status when it was not clear from the record that would would have known it, and failing to present clemency where the record shows there was matters in the record she could have cited amounted to ineffective assistance of counsel.

Additionally, we find the trial defense counsel was deficient in her failure to submit any clemency matters to the convening authority. [*6] The appellant is entitled to representation of counsel at this critical stage of the court-martial proceedings. See United States v. Palenius, 25 C.M.A. 222, 2 M.J. 86, 90, 54 C.M.R. 549 (C.M.A. 1977). She had represented the appellant at trial and was aware of his record and circumstances surrounding the offense. Lack of contact with the appellant does not allow the defense counsel to sua sponte terminate her obligation to represent the appellant in this regard. Id. Based on this record, it appears that counsel could have made a presentation of some substance to the convening authority. United States v. Howard, 47 M.J. 104, 108 (C.A.A.F. 1997); see also United States v. Hickock, 45 M.J. 142, 145 (C.A.A.F. 1996). In this case, the appellant was doubly damned by the action and inaction of his trial defense counsel.

The problem is that Howard and Hickock don't say what the NMCCA suggests they say. In Howard, the defense counsel separated after trial and substitute counsel was appointed. The substitute counsel never contacted the accused, who was available to meet with counsel, and submitted a pro forma clemency statement. The Court said:

Based on this record, it appears that counsel could have made a presentation of some substance to the convening authority. Defense counsel had made a sentencing argument at trial that could well have been the starting point for attorney-client discussions between appellant and substitute counsel [**12] regarding what to submit to the convening authority post-trial.

United States v. Howard, 47 M.J. 104, 107 (C.A.A.F. 1997). Hickock contained similar facts--the substitute counsel never contacted or communicated with the accused and did not submit any clemency materials to the convening authority. There is nothing to suggest the accused had made himself unavailable to counsel.

I am not sure what the defense counsel should have done. Regardless of the NMCCA's opinion, I can't believe the substitute convening authority did not know the accused was UA. And many of the cases, including those cited by the NMCCA, speak of the importance of the attorney-client relationship and counsel not submitting clemency matters without input from the client. Even if someone can convince me this is ineffective assistance of counsel, it is still hard to reconcile the case cites in the NMCCA opinion with the facts in this case.

Norbert MacLean

Norbert B. MACLEAN III, former Cryptologic Technician (Administrative) Seaman (E-3), U.S. Navy, is angry. In October 1992, he pled guilty at a general court-martial to 12 specifications of writing bad checks, in violation of Article 123a, UCMJ. The military judge sentenced him to a DD, 40 months confinement, total forfeitures, and reduction to E-1. In accordance with the PTA, the convening authority approved the sentence, but suspended confinement in excess of the 118 days time he had served.

After considering several assignments of error, including unlawful command influence, the NMCMR affirmed in an unpublished opinion in June 1994. He did not petition the CMA for review, and he was discharged from the service in August 1994.

On at least 2 occasions, in May 2002 and June 2003, he petitioned the NMCCA for extraordinary relief in the form of a writ of coram nobis. The basis for the first petition was that the general court-martial convening authority that brought him to trial was without authority to do so because he was not assigned to the command of the GCMCA. The NMCCA denied the petition in August 2002. MacLean petitioned CAAF for review, but the writ appeal was denied. United States v. MacLean, 57 M.J. 469 (C.A.A.F. 2002) (summary disposition).

The second petition alleged 6 issues, including that the first decision was tainted because one of the judges on the panel had served as the CO and immediate supervisor of the senior trial counsel and senior defense counsel in the petitioner's court-martial, and there was evidence of actual or apparent vindictive prosecution and unlawful command influence.

The NMCCA assumed, without deciding, that the former supervisor of the trial and defense counsel was disqualified and considered all the issues raised by MacLean in both petitions. The NMCCA denied the writ. MacLean's appeal to CAAF was denied. United States v. MacLean, 62 M.J. 230; (C.A.A.F. 2005).

Meanwhile, in 2003, MacLean made a formal complaint to the Department of Defense against the prosecutor in his court-martial. The DoD investigated. In 2004, MacLean requested copies of the investigations from the Navy and DoD. The Navy declined, but the DoD did give him some documents. After exhausting his administrative remedies, he filed suit in federal court. The district court dismissed in a summary judgment. MacLean appealed. The 9th Circuit reviewed the case and affirmed. MacLean v. Department of Defense, No. 05-55883 (9th Cir. Jul. 11, 2007) (unpublished).

Just hope you are never assigned a case with an accused like this. This case will never end.

CAAF Grants Petition

In the Daily Journal for 25 July, the CAAF noted it granted review of the following case:

No. 07-0225/MC. U.S. v. Michael E. MITCHELL. CCA 200501185. Review granted on the following issue raised by appellate defense counsel:

WHETHER APPELLANT'S GUILTY PLEA TO INDECENT ASSAULT AS A PRINCIPAL WAS IMPROVIDENT WHERE THE PROVIDENCE INQUIRY DOES NOT ESTABLISH THAT APPELLANT POSSESSED THE SPECIFIC INTENT TO GRATIFY HIS LUST OR SEXUAL DESIRES.

and the following issue specified by the Court:

WHETHER APPELLANT'S GUILTY PLEA TO DISTRIBUTING MARIJUANA WAS PROVIDENT WHEN APPELLANT TOLD THE MILITARY JUDGE THAT THE SUBSTANCE HE DISTRIBUTED WAS NOT MARIJUANA.

I have been unable to find the NMCCA opinion in this case. The specified issue will probably turn on the context in which the appellant made his statement and what other statements he made during the inquiry.

The first issue appears to be a question of law.

Article 77, UCMJ, defines a principal--"any person punishable under this chapter who--

(1) commits an offense punishable by this chapter, or aids, abets, counsels, commands, or procures its commission; or

(2) causes an act to be done which if directly performed by him would be punishable by this chapter; is a principal.

In the MCM pt. IV, ¶ 1b(4)the President states as follows:

When an offense charged requires proof of a specific intent or particular state of mind as an element, the evidence must prove that the accused had that intent or state of mind, whether the accused is charged as a perpetrator or an "other party" to crime. It is possible for a party to have a state of mind more or less culpable than the perpetrator of the offense. In such a case, the party may be guilty of a more or less serious offense than that committed by the perpetrator. For example, when a homicide is committed, the perpetrator may act in the heat of sudden passion caused by adequate provocation and be guilty of manslaughter, while the party who, without such passion, hands the perpetrator a weapon and encourages the perpetrator to kill the victim, would be guilty of murder. On the other hand, if a party assists a perpetrator in an assault on a person who, known only to the perpetrator, is an officer, the party would be guilty only of assault, while the perpetrator would be guilty of assault on an officer.

The elements of the offense of indecent assault under Article 134, UCMJ, as listed in the MCM pt. IV, ¶ 63b are as follows:

(1) That the accused assaulted a certain person not the spouse of the accused in a certain manner;

(2) That the acts were done with the intent to gratify the lust or sexual desires of the accused; and

(3) that under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.

I suspect the issue is whether, as an aider and abettor, the appellant must have had the intent to gratify his own lust or sexual desires or whether he had to have the intent to satisfy the lust or sexual desires of the perpetrator.

As we have no NMCCA case to review, we will just have to await the court's decision, unless counsel involved is willing to enlighten us.

Moreno Redux

The CAAF Daily Journal for 23 July:

Misc. No. 07-8020/NA. Javier MORENO, Appellant v. Paul H. MCCONNELL, Military Judge, Lieutenant Colonel, U.S. Marine Corps, Appellee. CCA 200100715. Notice is hereby given that a writ-appeal petition for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals on application for extraordinary relief was filed under Rule 27(b) on this date.

I couldn't find the NMCCA opinion on its website. Anyone care to fill us in?

Extraordinary Writs

In his discussion of the CAAF's jurisdiction over Colonel Murphy's case, CAAFlog notes that CAAF would have jurisdiction to intervene under a concept federal courts have recognized in applying the All Writs Act--potential appellate jurisdiction. In other words, the court has jurisdiction to consider the extraordinary writ if the case might come before it in the future.

in 1990 Article 69(d) was amended to provide that a TJAG could refer a case he was required to review under Article 69, UCMJ, to his CCA. And if the CCA reviewed it, the CAAF would have jurisdiction to review it under Article 67(a)(3)--"all cases reviewed by a Court of Criminal Appeals in which, upon petition of the accused and on good cause shown, the Court of Appeals for the Armed Forces has granted a review." See also Article 67(c). Thus, there is the slightest possibility that a case such as Lt Ziemniak's--where no punitive discharge or confinement could be adjudge--might wind up before CAAF.

In light of Clinton v. Goldsmith, and the limited statutory jurisdiction of the CAAF, I am not sure CAAF has "potential appellate jurisdiction." And until the Supreme Court rules on it, if ever, it is still an open question. But even if we were to assume that CAAF did have potential appellate jurisdiction, the possibility of a case reaching CAAF through an Article 69(d) review is so remote, I still doubt the CAAF would have the power to intervene.

Of course, that sets up another question--if CAAF doesn't have power to intervene in a case such as Ziemniak, or in the Murphy case, would a federal district court? And why would anyone want a federal district court, as opposed to some court familiar with Article 32 investigations and courts-martial to be the writ authority?

Court of Military Commission Review

While not the subject of this blog, those interested in the Military Commissions should review the latest on the appeal by the Government of the dismissal of charges against one of the Guantanamo detainees.

You can find it at SCOTUS Blog. The panel assigned to review the case consists of appellate judges from the courts of criminal appeals.

Colonel Murphy 2

In CAAF's Daily Journal for Wednesday 18 July, appears the following:

Misc. No. 07-8018/AF. Michael D. MURPHY, Petitioner v. Major General Robert Smolen, Convening Authority, and Colonel Bruce Ambrose, Investigating Officer, Respondents. CCA 2007-03. Notice is hereby given that a petition for extraordinary relief was filed under Rule 27(a).

As reported here last month, Colonel Murphy was a judge advocate accused of not being licensed to practice law, larceny, AWOL, and making false official statements. There is no mention of the issue involved or whether Colonel Murphy first presented the extraordinary writ to the AFCCA. The AFCCA website appears to be current through 17 July, but I have been unable to find an entry for Colonel Murphy. That suggests Colonel Murphy may have gone directly to CAAF.

As far as I can discover, the Article 32 investigation has not been held yet. That raises a couple of questions.

(1) From the caption of the case, it is clear that Colonel Murphy is protesting against some decision by the convening authority and the IO. What was that decision?

(2) Did Colonel Murphy file at the CCA first? If so, did the AFCCA write an opinion?

Does anyone out there have any answers?

AF TJAG Certifies an Issue

Today, the CAAF posted a notice from the Daily Journal, dated 17 July, that the Air Force Judge Advocate General certified 2 issues to CAAF in the case of United States v. Webb, No. 07-5003. The issues are:

(1) Whether the military judge abused her discretion in granting the defense motion for new trial; and

(2) Whether prior to authentication the military judge has the authority in a post-trial Article 39(a) session to set aside a conviction and order a new trial as a remedy for a discovery violation discovered post-trial.

In December 2006, the accused was convicted of using cocaine based on a "naked" urinalysis. Despite a May 2006 defense discovery request for derogatory information pertaining to government witnesses, the prosecution did not provide notice, until a week after trial, that the urinalysis observer had received nonjudicial punishment in November 2000 for making a false official statement, filing a false claim, and wrongfully attempting to obtain $3,653. The Air Force drug abuse testing instruction requires that an observer must not have received nonjudicial punishment for acts of dishonesty or false official statements. "On ten separate occasions, seven prior to and including the date of the appellee’s urinalysis, TSgt H signed observer briefings attesting to the fact that he had never received punishment under Article 15, UCMJ."

It gets even better. Before trial, the trial counsel interviewed TSgt H and inquired if there was anything in his background that he should know about. TSgt H admitted to the trial counsel that he had received an Article 15 some years ago. It is not clear if the trial counsel inquired as to the reason for the Article 15. The trial counsel had a paralegal contact the personnel center to retrieve a copy of the NJP. The NJP wasn't received until a week after trial, when it was promptly provided to the defense. But the trial counsel did not inform the defense counsel of the NJP before trial.

In a post-trial Article 39(a) session, prior to authentication of the record, the military judge ordered a new trial. The Government appealed and the AFCCA affirmed the judge's ruling. United States v. Webb, Misc. Dkt. 2007-01 (A.F. Ct. Crim. App. May 10, 2007). The AFCCA's discussion of the second issue is as follows:

The government avers the military trial judge did not have the authority to grant a new trial because R.C.M. 1210(a), states: “At any time within 2 years after approval by the convening authority of a court-martial sentence, the accused may petition the Judge Advocate General for a new trial on the grounds of newly discovered evidence . . . .” (emphasis added). The government further argues that since the convening authority has not taken action in the case, the military judge had no authority to grant the defense motion for a new trial.

However, case law reveals further guidance. Our superior court removed any “substantive distinction between a military judge[’]s authority to consider post-trial issues under R.C.M. 1102(b)(2) and R.C.M. 1210(f) . . . .” United States v Meghdadi, 60 M.J. 438, 441, (C.A.A.F. 2005) (citing United States v Schaff, 29 M.J. 60, 65-66 (C.M.A. 1989)). The determination whether sufficient grounds exists for ordering a new trial rests with the authority considering the petition. United States v Sztuka, 43 M.J. 261, 268 (C.A.A.F. 1995) (citing United States v. Bacon, 12 M.J. 489, 492 (C.M.A. 1982)). In the case sub judice, the military judge had the authority to consider and rule on the motion for a new trial.