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.

Mil. R. Evid. 803(3)

Mil. R. Evid. 803(3) is one of the most difficult of the hearsay exceptions to apply. Mil. R. Evid. 803 provides as follows:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(3) Then existing mental, emotional, or physical condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.

In a recent article, James J. Duane, Professor, Regent University School of Law, and faculty member of the National Trial Advocacy College at the University of Virginia School of Law, explores the meaning of Fed. R. Evid. 803(3) and reviews how trial an appellate courts have misapplied it. James J. Duane, The Admissibility of Memories and Beliefs, Criminal Justice, vol. 22, no. 2 (Summer 2005) at 17. Professor Duane employs a standard scenario for investigating the appropriate application of the hearsay exception--a man is accused of killing his wife--and asks two questions: (1) May the defense introduce evidence that the accused proclaimed his innocence to the police and others; and (2) may the prosecution introduce evidence that the deceased feared the accused

The catalyst for the article may have been United States v. Hayes, 369 F.3d 564 (D.C. Cir. 2004)--a case "decided by a remarkably distinguished panel of judges, including three former lawyers with experience in the U.S. Department of Justice; one of them was the chief judge of the circuit and a former Harvard Law School professor, and another was a young judge named John G. Roberts, Jr., who has since become the Chief Justice of the U.S. Supreme Court." In that case, a conspirator who had confessed made a pretext telephone call for the police to a coconspirator. The coconspirator apparently guessed as much and kept telling the conspirator to just tell the truth--implying that he had nothing to hide and had done nothing wrong. At trial, the judge denied a defense request to admit the tapes of the conversation. The D.C. Circuit concluded that the Government's objection to admission of the tape--self-serving hearsay--was "beside the point." For "even if Hayes did intend implicitly to assert his innocence, his statements were still admissible to show his state of mind." Id. at 568. The Circuit Court nevertheless found the error was harmless.

Professor Duane asserts that "the ruling in Hayes is so plainly erroneous that no ethical defense counsel can cite it in good conscience, at least not if you read beyond this point in this article." Unlike statements such as "I am tired," "I am hungry," or "I am in pain"--which are descriptions of the declarant's physical, mental, or emotional condition at the time of the statement--the phrase "'I am innocent' is describing a memory of past conduct." Fed. R. Evid. 803(3) does not apply to "statements of memory or belief to prove the fact remembered or believed."

Professor Duane has similar problems with judges who permit friends of the deceased to testify that the "woman once said she was afraid of him--invariably because of threatening things she said or implied he had done in the past." Such evidence should only be admitted on the theory that "evidence about the mental state of the victim as to what she feared or believed or thought she remembered . . . may still help the jury decide whether a person with her mental state would have been likely to do the things that the defense claims she did." For example, when an accused claims he shot his ex-girlfriend in self-defense when she came over to his house with a gun, the prosecutor should be allowed to call a friend of the deceased who can testify that shortly before her death, the alleged victim said she was terrified of the defendant or claimed to be terrified of guns. This testimony rebuts the defense contention that she would have gone over to his house with a gun.

Professor Duane further warns of asking jurors to understand and actually apply the limiting instruction that accompanies the admission of Fed. R. Evid. 803(3) material--that statements of memory or belief are admitted under Rule 803(3) "only to prove that the witness had that belief or memory, but not that her memory or belief is true."

The most recent CAAF opinion on the subject is United States v. Lovett, 59 M.J. 230, 234 (2004). In that case, the appellant had been charged with soliciting LC to make his wife disappear. "On cross-examination, defense counsel asked LC whether Appellant told him that he ”didn’t want any harm to come to his wife.” The CAAF bailed, holding that it was harmless whether or not it was error.

New Air Force Opinions

The Air Force released 4 new opinions today, one of which had no assigned errors. In the other three cases, the court reached conclusions without explaining the facts. In other words, not worth reading. If the court isn't going to attach any facts to their conclusions, they ought to just cite to the cases and say affirmed.

Pretrial Confinement Revisited

In United States v. Adcock, 65 M.J. 18 (C.A.A.F. 2007), the CAAF created a new ground for an accused to get additional pretrial confinement credit--for any abuse of discretion in the terms of an accused's confinement regardless of whether there was any intent to punish. See Pretrial Confinement

In that case, the CAAF found the Air Force violated its own pretrial confinement regulation, AFI 31-205, as follows:

para. 1.2.2.2.2. When seeking a correctional facility outside the DoD, the standards of confinement and treatment of inmates must meet or exceed what would be provided in a DoD facility. . . . .

para. 5.8.1.2. All pre-trial detainees will be housed in separate cells or sleeping areas, separated by sight, from post-trial inmates. . . . .

para. 7.1.1. Pre-trial detainees. Military members in pre-trial status are not convicted of a crime and will continue to wear the BDU uniform with authorized rank insignia, badges, patches, devices, etc. . . . Pre-trial detainees will not be placed in the same color distinctive uniform worn by adjudged and sentenced inmates [in accordance with R.C.M.] 304(f).

As first reported in CAAFlog, the Air Force released changes to AFI 31-205 on 6 July 2007. The changed sections read as follows:

1.2.2. (REPLACE). Pre-trial detainees or inmates in Department of Defense (DoD) or non-DoD correctional institutions are subject to that institution’s rules or directives including uniforms, discipline and treatment.

1.2.2.1. (REPLACE). The installation commander may authorize use of civilian facilities (federal, state, county, city and private contract) to incarcerate pre-trial detainees and inmates. Facilities must be approved or accredited by one of the following: American Correctional Association, American Jail Association, or by the state or federal Governments. (A list of the federally approved facilities may be obtained from the nearest US Marshal’s office.)

1.2.2.2. (REPLACE). Memorandum of Agreement (MOA). Any circumstance that would cause an anticipated incarceration at a location other than the parent installation requires a written MOA. Reasons for an installation to have a MOA in effect include, but are not limited to, the lack of an organic correctional facility, lack of bed space, the gender of the inmate, special needs of the inmate, etc. Emergency and unusual circumstances that would preclude the ability to properly execute a MOA will be coordinated through HQ AFSFC/SFC for assistance. If possible, HQ AFSFC/SFC will assist with placement and transfer of pre-trial detainees and inmates not covered by an existing MOA. The parent installation still retains responsibility to secure appropriate facilities.

1.2.2.2.1. (REPLACE). Possible alternatives for housing Air Force pre-trial detainees and
inmates are: civilian operated correctional facilities and jails, private correctional facilities and jails under contract to a civilian government agency, private correctional facilities and jails, other DoD/sister service correctional facilities and other Air Force correctional facilities.

1.2.2.2.2. (REPLACE). All MOAs must be in writing and should detail responsibilities and
services. Consult AFI 25-201, Support Agreements Procedures, for guidance. The standards of confinement and treatment of inmates and pre-trial detainees confined at non-DoD correctional institutions must meet or exceed those set by the American Correctional Association, American Jail Association, or the state or federal government agency that accredited or approved the facility.

1.2.2.2.2.1. (REPLACE). Suggested standards to be requested when negotiating a MOA
with a non-DoD correctional facility should include, but not be limited to, separation of
pre-trial detainees and post trial inmates, separation of offenders who committed minor offenses from those who committed serious offenses, facility condition and cleanliness.

5.8.1.2. (REPLACE). All pre-trial detainees in DoD confinement facilities will be housed in separate cells or sleeping areas, separated by sight, from post-trial inmates. They may share the same common areas at the same time. Pre-trial detainees are housed IAW Article 13, UCMJ.

7.1.1. (REPLACE). Pre-trial detainees in AF confinement facilities. Individuals in this status will continue to wear the ABU/BDU uniform with authorized rank insignia, badges, patches, devices, etc. If it is determined by the CSF that a pre-trial detainee poses a threat and/or is an escape risk the CSF may seek HQ AFSFC/SFC approval for a distinctive uniform (recommended: white jumpsuit). (Call 1-877-273-3098 for the SFC duty officer.) The distinctive uniform may be used with the following items worn as a minimum: cloth USAF tape, cloth nametape and cloth rank insignia. An aircrew style
patch may be used as a substitute for tapes/insignia. While housed in an AF confinement facility pre-trial detainees will not be placed in the same color of distinctive uniform worn by adjudged inmates IAW MCM, Part II, Chap. 3, Rule 304(f). NOTE: Pre-trial detainees housed at non-AF confinement facilities shall wear the uniform prescribed at that facility for the appropriate custody level.

NMCCA Censures Judge, Again

In United States v. Todd, the NMCCA held that that the evidence was legally and factually sufficient to sustain the appellant's convictions for fraternization, making a false official statement, adultery, and endeavoring to impede an investigation.

The NMCCA takes the opportunity to censure the trial judge for injudicious comments the judge made in this case.

Despite the military judge's repeated invitations on the record, we decline to disturb the court-martial's verdict. We will, however, take this opportunity to once again express our concern with the comments made by, and lack of judicial deportment exhibited by, this military judge during his trials. See United States v. Barnes, 60 M.J. 950 (N.M.Ct.Crim.App. 2005), and United States v. Denson, No. 200400048, 2005 CCA LEXIS 243, unpublished op. (N.M.Ct.Crim.App. 20 Jul 2005).

The NMCCA explains more fully:

The record is replete with needless comments and arrogant behavior by the military judge. The military judge grilled potential members, openly questioned the integrity of a potential member without sufficient basis, characterized as "imbecilic" a convening authority's conduct in the case, openly contemplated contempt proceedings against a former panel member, and criticized a witness' decision to smoke a cigarette. Record at 65, 189, 201, 243-44, and 312. More troubling to us is the military judge's goading of the military counsel by his incessant sarcasm, and his pompous condescension towards them, often in the presence of the members. Id. at 80, 128-29, 130-32, 138, 164, 190, 191, 200, 249, 267, 286, 303, 306, 331, 355, 387, 397, 399, 424, 445, 454, 463, 466, 468-69, 481, 510-11, 550-52, 573, and 575.

The sentence is this case was adjudged on 31 July 2003. The sentence in the Barnes case was adjudged on 9 September 2003. One wonders why the court found it necessary to censure the trial judge for actions that occurred more than 4 years ago, especially in light of the previous censures. I note there is no discussion of the fact that it took over four years from the time sentence was adjudged until the NMCCA rendered it's decision.

Air Force Releases 2 Opinions

The Air Force appears to have dropped the practice of holding opinions for a once or twice a month dump. This is certainly a welcome change.

After the experience of the past couple of years, it should be plain to everyone that the campaign against child pornography has complicated the lives of prosecutors everywhere. United States v. Fiorey, ACM 36319 (A.F. Ct. Crim. App. Jul. 16, 2007) is such a case.

During a child pornography investigation an FBI agent purchased access to what turned out to be a defunct website. When he complained to the company that processed the credit card charge, they offered him access to 50 alternate sites the company claimed contained similar content. The FBI agent purchased access to 13 of the sites, all of which contained child pornography, and reviewed the cover page (home page) of the 37 other sites, all of which suggested the sites contained child pornography. The FBI obtained a warrant for the records of the credit card processor. Appellant's name appeared among those who purchased access to sites that "appeared to contain child pornography." The names of suspects were distributed to local law enforcement.

Local police obtained a warrant and search Appellant's home and found no child pornography. But Appellant admitted that in 2001 he had downloaded some child porn. Credit card records showed he had completed transactions with companies in Latvia and Russia known by the detectives for involvement in child pornography, but none were for the 50 sites reviewed by the FBI.

The appellant claimed his confession was not corroborated. Noting that the corroboration need be only slight, the AFCCA disagreed and found three reasons to sustain the admission of the confession: (1) the extensive involvement of the credit card processor with child pornography sites; (2) several companies listed on his credit card records were known by the detectives to be purveyors of child porn; and (3) the names of some of the sites he frequented vaguely suggested they concerned child pornography involving young males.

The second case is United States v. Burton, ACM 36296 (A.F. Ct. Crim. App. Jul. 16, 2007). A rape charge was referred to a GCM after an Article 32 investigation. The convening authority withdrew and dismissed a charge and promptly repreferred that charge (indicating the appellant was then assigned to a different organization) and several other charges including the rape of another woman. Although the defense so requested, the Article 32 IO was not permitted to conduct an investigation on the renewed first charge. Instead, he was allowed to attach the previous Article 32. The military judge denied the defense motion to dismiss.

The AFCCA held that the judge erred, that R.C.M. 405(c) required that upon the defense request a new Article 32 be held on the charge (Article 32(c), but that the error was harmless beyond a reasonable doubt. All of the impeachment info that the defense wanted to present to the convening authority was presented to him before referral and the defense had a full opportunity to cross examine the complaining witness at trial.

Missing Witnesses

In United States v. Rodriguez, ACM 36455 (A.F. Ct. Crim. App. 26 June 2007), the appellant was convicted of the wrongful use of marijuana and percocet. From witness testimony, it became apparent that other military members who had not been called to testify against the appellant were present when the appellant used the illegal drugs. In his closing argument,

the trial defense counsel also raised the specter of the “missing witnesses,” alluding that the government would have called them to testify if their testimony would have supported the government’s case. Apparently this argument was compelling enough to cause the members to interrupt their deliberations to ask about the missing witnesses.
The military judge’s response was to tell the members they had to make a “decision based on the evidence presented to you and that’s all I can tell you.” The trial defense counsel then added “I believe the members can also look at lack of evidence and evidence that wasn’t presented here.” At this point, the trial counsel asked for a session outside the members’ presence under Article 39a, UCMJ, 10 U.S.C. § 839a. At the conclusion of the Article 39a, UCMJ, session, the military judge instructed the members as follows:

[You] have to look at the evidence that’s been presented to you. You have an instruction dealing with what constitutes individuals who are granted immunity – testimonial immunity . . . With regard to an order given by the convening authority and their obligations under that. So that’s all I’m going to explain to you on that. Again, you really have to look at the evidence that’s been presented to you and make your decision on that. The members returned to the deliberation room and the trial continued through sentencing.

The AFCCA held as follows:

With respect to the instruction limiting the members to the evidence presented, we find no error. The military judge’s instructions were consistent with Rule for Courts-Martial 920(e)(4), which requires that the military judge provide “[a] direction that only matters properly before the court-martial may be considered.” Trial and appellate defense counsel appear to argue that the military judge should instruct that the absence of evidence is, itself, evidence. That is incorrect. It remains an absence of evidence. Members should not be placed in a position of speculating about what is missing. They must make their determinations based on the evidence presented in court; however, that same absence of evidence may be considered in determining whether the government has met its burden of proof beyond a reasonable doubt.

Neither the trial judge nor the AFCCA acknowledged that federal courts have recognized a missing witness instruction. See United States v. Mittelstaedt, 31 F.3d 1208, 1216 (2d Cir. 1994) (holding a missing witness instruction inviting the jury to infer that the testimony of an uncalled witness might have favored a specified party is appropriate if production of that witness is peculiarly within the power of the other party); United States v. Mahone,, 537 F.2d 922, 926 (7th Cir. 1976) (quoting Graves v. United States, 150 U.S. 118, 121 (1893) (holding that "if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable").

It seems this instruction would not need to be given very often. The key here is that the witness would have to be peculiarly within the power of the Government to produce. Under military law, the accused would have access to all the witnesses who are known to the Government. The Federal Judicial Center has a pattern criminal jury instruction on the subject. The note to the instruction warns against trying to use the instruction against the accused as the defense does not have to produce any evidence whatsoever.

New AFCCA Cases

Yesterday, three new unpublished opinions appeared on the AFCCA website. Only two of the opinions contain any substance. Here's the latest case issued.

In United States v. Lane, ACM S30930 (A.F. Ct. Crim. App. Jul. 13, 2007), the AFCCA faced a use of cocaine case with rather convoluted facts. On 15 November 2004, the appellant went to the home of her NCOIC to complain of bugs and worms that were crawling on her skin. The following day, the appellant failed to show up for work at the hospital pharmacy after a scheduled appointment with her psychiatrist. The unit discovered that the psychiatrist had cancelled the appointment and had told the appellant to report to the emergency room, which she had not done.

At the direction of the pharmacy supervisor, who was also the acting Group Commander, unit personnel were sent to her apartment to bring her back to base. Upon her return, the appellant was subject to urinalysis testing. The opinion does not explain why, so we are left to guess that it was required of all personnel who returned from an unauthorized absence. The staff refused to provide the acting commander with the results, invoking the Health Insurance Portability and Accountability Act (HIPAA) (42 U.S.C. § 1320-d et. seq, (1996)), which provides, among other things, protection from the use and disclosure of protected health information.

Apparently the acting commander did not think to call the JAG--or if she did she got some bad info. Nevertheless, the acting commander had access to the computer system storing the results and discovered the test results were presumptively positive for cocaine use. When the commander tried to order a confirmatory test, the staff refused.

Several months earlier, under similar circumstances, the appellant had provided another urinalysis that was presumptively positive for cocaine. The commander was never notified of the results and they were not discovered until a month later as the appellant's records were being prepared for a medical evaluation board. By that time, the specimen had apparently been destroyed so no confirmation test could be performed.

The commander finally decided to seek a probable cause determination from a military magistrate. That urine specimen also tested positive for cocaine. The AFCCA decided that the HIPAA did not apply, as it was not intended to provide an exclusionary rule for violations of the act. The AFCCA also concluded that there was probable cause to seize the specimen and the test was also admissible because it was performed for medical diagnosis and treatment.

Wasn't this just a legitimate inspection -- testing anyone who was returning from a UA? See United States v. Davis, 54 M.J. 690 (A.F. Ct. Crim. App. 2000); United States v. Valenzuela, 24 M.J. 934 (A.C.M.R. 1987).

Haditha Art. 32 Reports

The New York Times reported yesterday that the Marine lawyer conducting the Article 32 investigation into the murder charges against L/Cpl Justin L. Sharratt has recommended the charges be dismissed. L/Cpl Sharratt is accused of the murder of three Iraqi men. The Times asserts Lt Col Paul Ware's report states that the case against L/Cpl Sharratt was “'unsupported and incredible,' and that L/Cpl had killed the three men in a darkened bedroom of a home in response to a perceived threat in accord with the rules of engagement and use of force."

The charges stemmed from a 19 November 2005 incident in Haditha shortly after an IED killed a Marine as a convoy drove through the town. The Times reports that Lt Col Ware's report is quite critical of the prosecution for relying on "contradictory accounts from Haditha residents, inconclusive forensic analyses and sworn written statements by low-ranking enlisted men that were typed up, he said, by Naval Criminal Investigative Service agents who he contended routinely added phrases that bolstered prosecution arguments."

The Dayton Daily News is reporting that an Article 32 investigating officer has recommended that charges of dereliction of duty and violation of a lawful order against Lt Col Jeffrey Chessani be referred to court-martial. Lt Col Chessani was the commander of the battalion alleged to have been involved in the killing of 24 Iraqis in Haditha in November 2005. According to the News, Col Christopher Conlin, the Article 32 Investigating Officer, wrote that Lt Col Chessani "'failed to thoroughly and accurately report and investigate a combat engagement that clearly needed scrutiny.'"


Meanwhile, USA Today reports that another Article 32 Investigating Officer recommended that dereliction of duty charges against Marine lawyer Capt Randy W. Stone be dealt with administratively. Capt Stone, the staff legal officer, was charged with violating a lawful order and dereliction of duty for failing to ensure that allegations of violations of the war be promptly reported and thoroughly investigated.

Abu Ghraib Trial

The New York Times is reporting that Army Judge Stephen Hendley denied a defense motion to dismiss all charges against LTC Steven Jordan, the only officer charged as a result of the prisoner abuse at Abu Ghraib. LTC Jordan, who was the director of the prison interrogation center, is not charged with personally abusing any prisoners. Defense attorneys had requested the dismissal asserting that "Maj. Gen. Guy Swann, then commander of the Military District of Washington, exerted ''unlawful command influence'' over the decision to pursue a court martial rather than resolve the case administratively."

The judge also denied defense motions for (1) a new Article 32 investigation, and (2) to suppress statements LTC Jordan is alleged to have made to Maj. Gen. George Fay, who investigated the Abu Ghraib abuses.

The article reports the trial is now scheduled for 20 August.

Terminated by Apprehension

Today, the Coast Guard Court of Criminal Appeals released a case that demonstrates that after almost 60 years of UCMJ experience, many still don't understand the law of unauthorized absence terminated by apprehension. United States v. Hedlund, Dkt. No. 1261 (C.G.C.C.A. Jul. 11, 2007).

The court summarized the facts as follows:

Pursuant to a pretrial agreement, Appellant pled guilty to a charge and single specification under Article 86, UCMJ, which alleged an unauthorized absence from the USCGC JARVIS from on or about 28 April 2005 until his apprehension on or about 7 June 2005. During the providence inquiry, however, Appellant revealed that on 10 May 2005, he had been arrested and taken into custody by officers of the Honolulu Police Department (HPD) on theft charges unrelated to this court-martial. On the day of his arrest by the HPD, Appellant volunteered during questioning that he not only was a member of the military, but that he was absent without leave as well. When asked by the military judge why he revealed his unauthorized absence status to the HPD, Appellant essentially indicated that he knew the Honolulu authorities would eventually learn of his status. The following day, the HPD notified the Coast Guard of Appellant’s arrest. Coast Guard authorities placed a detainer on him that same day. Nevertheless, Appellant remained in civilian confinement until he posted bond on 7 June 2005, the date he was turned over to the Coast Guard.

During the providence inquiry, however, Appellant revealed that on 10 May 2005, he had been arrested and taken into custody by officers of the Honolulu Police Department (HPD) on theft charges unrelated to this court-martial. On the day of his arrest by the HPD, Appellant volunteered during questioning that he not only was a member of the military, but that he was absent without leave as well. When asked by the military judge why he revealed his unauthorized absence status to the HPD, Appellant essentially indicated that he knew the Honolulu authorities would eventually learn of his status.

Slip op. at 2-3.

On appeal, the Government conceded that Appellant's UA had not been terminated by apprehension. The CGCCA agrees:

In United States v. Franchino, 48 M.J. 875, 877 (C.G.Ct.Crim.App. 1998) (internal citations omitted), this Court held “that ‘apprehension’ by civilian authorities does not establish ‘apprehension’ within the meaning of the military law of unauthorized absence, unless additional facts are established. Where termination by apprehension is alleged, in addition to apprehension by civilian authorities it must be shown that the accused was not the source of the information that he was a military absentee, or, if he was the source, that he revealed the information to avoid civilian prosecution. This is an essential part of the element of termination by apprehension.” Here, the evidence clearly shows that while Appellant informed the HPD of his absentee status, there is nothing to indicate that he did so to avoid civilian prosecution. While this statement did elicit further inquiry from the military judge, nothing in Appellant’s responses indicated that he was trying to avoid civilian prosecution.

Slip op. at 3.

Analysis

"Any member of the armed forces who, without authority--

(3) absents himself or remains absent from his unit, organization or place of duty at which he is required to be at the time prescribed; shall be punished as a court-martial may direct. "

Article 86(3), UCMJ. The maximum sentence for an unauthorized absence for more than 30 days is a DD and confinement for 1 year. MCM pt. IV, ¶ 10e(2)(c). If the accused's unauthorized absence is for more than 30 days and "terminated by apprehension," the confinement portion of the maximum sentence is increased to 18 months. MCM pt. IV, ¶ 10e(2)(d).

The President has defined termination as methods of return to military control. MCM pt. IV, ¶ 10c(1). Under that paragraph, the President lists two methods of apprehension by civilian authorities: (1) at the request of the military -- "when an absentee is taken into custody by civilian authorities at the request of military authorities, the absence is terminated," (MCM pt. IV, ¶ 10c(10)(d); and (2) without prior military request--"When an absentee is in the hands of civilian authorities for other reasons and these authorities make the absentee available for return to military control, the absence is terminated when the military authorities are informed of the absentee's availability" (MCM pt. IV, ¶ 10c(10)(e).

The CGCCA did not cite to the MCM for the definition of termination by apprehension. Instead, it relied on case law. The case law, including the CGCCA's 1998 Franchino decision, are based on 1950s decisions of the CMA that relied on the 1951 MCM, which did not define the term "terminated by apprehension." See 1951 MCM ¶ 165. The only reference to the term in the 1951 MCM is in ¶ 127c--the Table of Maximum Punishments. In it, the term "terminated by apprehension" appears only as a sentencing enhancement for the offense of desertion under Article 85. Similarly, the only reference to "terminated by apprehension" in 1969 MCM is only mentioned as a sentencing enhancement the the offense of desertion under Article 85.

To me, the CMA and CGCCAs tortured logic on this issue doesn't make sense. The appellant's unauthorized absence was terminated by apprehension -- he wasn't turning himself into authorities. It was his apprehension that resulted in the termination of his UA. He did so because he knew the police would check wants and warrants and find that he was wanted by the military for being AWOL. I would conclude that the appellant's AWOL was terminated by apprehension so the 18-month confinement maximum would apply, but the fact that he told the police that he was wanted by the military could be considered as a mitigating factor in what an appropriate sentence would be. Of course, this case will never get to CAAF as the Government conceded the issue before the CCA.

Confrontation Clause Cases 2

On 25 October and 6 November, the CAAF will hear oral argument on two Marine Corps confrontation clause cases.

In United States v. Pack, NMCCA 200401923 (N-M. Ct. Crim. App. Oct. 26, 2006), over defense objection, the military judge permitted an 8-year-old girl who was alleging that her step-father molested her to testify from a remote location. Based on Maryland v. Craig, 497 U.S. 836 (1990) and Mil. R. Evid. 611(d), the NMCCA held that the military judge did not err in permitting testimony from a remote location. The NMCCA went on to say:

We are not persuaded by the appellant's further contention that the decision in Crawford v. Washington, 541 U.S. 36 (2004) render the holding in Craig unsound. Crawford applies only to testimonial statements made prior to trial. The live, remote video testimony at issue in this case was presented at trial. In addition to being a departure from long-standing precedent, the appellant's reasoning assumes away the constitutional issue in this case -- whether the confrontation that occurred is constitutionally sufficient. Crawford does not address this question. The proper standard to be applied is that set forth in Craig, not Crawford. Applying that standard, we hold that the appellant's right to confrontation of the witness in this case was not violated. This assignment of error is without merit.

The last sentence of the quote is normally reserved for cases in which an appellant's claim was either frivolous or close to it. Although the NMCCA ruled against the appellant, the issue is hardly frivolous, as the CAAF will hear oral argument on Pack, No. 07-0085/MC on 25 October, and the Supreme Court has not resolved the issue. The argument will be held at a "remote location" to be announced later as part of the CAAF's outreach program.

In United States v. Harcrow, NMCCA 200401923 (N-M. Ct. Crim. App. Oct 30, 2006), the NMCCA held that two forensic laboratory reports from the Virginia "Department of Criminal Justice Service, Division of Forensic Science," identifying the substances seized as containing residue of heroin and cocaine, were admissible at trial despite Crawford. Citing United States v. Magyari, 63 M.J. 123 (C.A.A.F. 2006), the NMCCA finds the reports non-testimonial business records.

Although Magyari did hold that the reports of urinalysis results from a Government drug testing laboratory were non-testimonial business records, it specifically limited the decision to the facts of the case. Urinalysis reports of specimens collected under the military drug testing program are not "prepared at the behest of law enforcement in anticipation of a prosecution." The facts in Harcrow are different. This crime laboratory, although clearly trying to objectively identify the substances, does prepare its reports at the behest of law enforcement in anticipation of a prosecution.

The CAAF will hear oral argument on Harcrow, No. 07-0135/MC on 6 November. Although the Supreme Court has not granted on this issue so far, a petition asking that question has been filed by the State of Missouri.

Where's My Inheritance?

Oh, what has our Navy come to? MilitaryTimes.com and the San Diego Union-Tribune are reporting that Lt. Milton T. Guy, disbursing officer for the frigate McClusky, pled guilty on June 26 to stealing between $120,000 and $140,000 from the ship’s safe. Most of the money was used as payments to a Nigerian Internet scam so he could collect a $260,000 “inheritance.” But all was not lost, he evidently used some of the funds to buy a computer and make down payments on a car and a house. Although the article is not clear, it appears Lt Guy received a dismissal, confinement for 28 months, and a $14,000 fine.

CAAF Oral Argument Schedule

Despite the slow start in granting petitions for review for the next term of court, the CAAF is setting an aggressive oral argument schedule. In October, the Court will hear 15 oral arguments. The last 3 for the month, scheduled for the 23d, 24th, and 25th, will be Project Outreach arguments. The court calendar does not list where the outreach arguments will be heard. The court has also set 4 cases for oral argument in November.

Navy Doctor to GCM

On 3 July, the Navy Times reported that the case of Cmdr Kevin Ronan, a Navy pediatrician who worked at the U.S. Naval Academy and served as an unofficial sponsor for Naval Academy athletes, was referred to trial by general court-martial. According to the article, the Navy Surgeon General referred seven counts of conduct unbecoming an officer and four counts of conduct prejudicial to good order and discipline or of a nature to bring discredit on the armed forces. He was charged with violating a federal wiretap statute for “secretly recording several Naval Academy students engaged in sexual activities and intimate conversations at his Annapolis, Md., home.” NavyTimes.com. No trial date has been set. Cmdr Ronan’s attorney asserts he was framed.

Death Penalty Sought

On 3 July 2007, CNN.com reported that federal prosecutors filed notice of their intent to seek the death penalty if Steven D. Green, a member of the 101st Airborne Division, is convicted of raping a 14-year-old Iraqi girl and killing her and 3 other family members in March 2006. Green received an honorable discharge from the Army in May 2006 for an “anti-social personality disorder.” No trial date has been set. Three other members of that unit have been convicted by court-martial of offenses in relation to this incident and a 4th is awaiting trial on 30 July 2007. The rape and killings are alleged to have occurred in Mahmoudiya, a village about 20 miles south of Baghdad.

Charging Child Pornography

Prosecuting a case under the Child Pornography Protection Act (CPPA) provides many difficulties.

(1) The statute does not have extra-territorial application, thus, can not be the basis of conviction for an offense occurring overseas. See United States v. Martinelli, 62 M.J. 52 (C.A.A.F. 2005).

(2) The prosecution must prove beyond a reasonable doubt that the child pornography involves real children -- in other words the images are not virtual images. See United States v. Mason, 60 M.J. 15 (C.A.A.F. 2004).

(3) In the past, it appears that the CCPA may have required child pornography in three separate “matters” to be criminal. See United States v. Sapp, 53 M.J. 90 (C.A.A.F. 2000).

Since at least Sapp in 2000, it has been clear that child pornography may be prosecuted under Article 134 without reference to the CPPA if the Government can establish beyond a reasonable doubt that the child pornography is conduct prejudicial to good order and discipline (clause 1) or service discrediting (clause 2). There are advantages to charging child pornography under clause 1 or 2 rather than clause 3. Article 134 has extraterritorial application. Martinelli. Virtual child pornography, like actual child pornography, may be service discrediting or conduct prejudicial to good order and discipline. Mason. And the maximum term of confinement for an offense charged under clauses 1 or 2 is the same for similar offenses charged under the CPPA. United States v. Leonard, 64 M.J. 381 (C.A.A.F. 2007).

Despite the many advantages of charging child pornography under clause 1 or 2 of Article 134, it appears there are still many cases arriving at the service courts of criminal appeals and the CAAF in which a violation of the CCPA has been alleged. See, e.g., United States v. Boggs, NMCCA 200600984 (N-M. Ct. Crim. App. Jun. 20, 2007); United States v. Christy, ARMY 20050291 (A. Ct. Crim. App. Jun. 22, 2007); United States v. Nieland, Misc. Dkt. 2006-08 (A.F. Ct. Crim. App Jun. 25, 2007). Is there some advantage to doing so that I have missed? Are investigators citing to the CPPA in the reports of investigation and the charging officials just blindly following the investigators lead? Or are charging officials just not familiar with the case law?