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.