Military Justice Blog

Where's Crawford

2007-09-25T21:29:00.001-04:00

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

2007-09-24T21:00:00.001-04:00

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

2007-09-19T20:25:00.001-04:00

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

2007-09-18T20:24:00.001-04:00

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

2007-09-18T19:32:00.000-04:00

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

2007-09-16T20:56:00.001-04:00

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

2007-09-16T19:06:00.001-04:00

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

2007-09-15T17:11:00.000-04:00

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

2007-09-07T16:28:00.001-04:00

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

2007-09-06T20:38:00.001-04:00

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

2007-08-29T19:23:00.001-04:00

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

2007-08-29T18:53:00.001-04:00

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?

2007-08-28T20:16:00.001-04:00

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

2007-08-25T14:19:00.000-04:00

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

2007-08-23T19:57:00.001-04:00

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

2007-08-23T19:47:00.000-04:00

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

2007-08-23T19:36:00.001-04:00

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

2007-08-22T17:17:00.001-04:00

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

2007-08-21T21:20:00.001-04:00

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

2007-08-21T20:28:00.001-04:00

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

2007-08-21T19:58:00.001-04:00

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

2007-08-21T19:34:00.001-04:00

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

2007-08-21T19:28:00.000-04:00

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

2007-08-20T19:27:00.001-04:00

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!

2007-08-20T19:10:00.001-04:00

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

2007-08-17T21:55:00.000-04:00

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

2007-08-16T19:17:00.000-04:00

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

2007-08-15T16:30:00.000-04:00

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

2007-08-10T11:20:00.000-04:00

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

2007-08-09T19:51:00.001-04:00

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

2007-08-07T21:00:00.001-04:00

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

2007-08-06T19:08:00.001-04:00

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

2007-08-05T21:00:00.001-04:00

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

2007-08-05T19:53:00.001-04:00

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

2007-08-03T16:34:00.001-04:00

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

2007-08-02T20:13:00.001-04:00

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

2007-08-02T19:04:00.001-04:00

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

2007-07-31T19:17:00.001-04:00

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

2007-07-30T20:11:00.001-04:00

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

2007-07-28T06:53:00.001-04:00

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

2007-07-28T06:31:00.001-04:00

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

2007-07-27T21:41:00.001-04:00

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

2007-07-27T20:30:00.001-04:00

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

2007-07-26T20:35:00.001-04:00

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

2007-07-25T18:32:00.001-04:00

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

2007-07-22T13:18:00.001-04:00

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

2007-07-20T19:39:00.001-04:00

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

2007-07-20T14:33:00.001-04:00

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

2007-07-18T21:12:00.001-04:00

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)

2007-07-18T19:54:00.001-04:00

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

2007-07-17T20:14:00.001-04:00

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

2007-07-17T17:11:00.001-04:00

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

2007-07-17T16:36:00.001-04:00

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

2007-07-16T21:22:00.001-04:00

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

2007-07-14T20:35:00.001-04:00

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

2007-07-14T19:33:00.001-04:00

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

2007-07-13T18:20:00.001-04:00

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

2007-07-12T08:02:00.001-04:00

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

2007-07-11T19:57:00.000-04:00

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

2007-07-07T12:01:00.001-04:00

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?

2007-07-05T21:22:00.000-04:00

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

2007-07-05T15:56:00.000-04:00

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

2007-07-04T10:27:00.000-04:00

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

2007-07-04T10:12:00.000-04:00

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

2007-07-04T06:52:00.000-04:00

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?

Duty to Cite Contrary Case Law

2007-06-29T20:51:00.000-04:00

Corporal Robinson was carrying on an affair with the wife of a fellow Marine who was deployed to Iraq. The appellant’s commander discovered the affair and ordered Corporal Robinson to have no further contact with her. Two days after receiving the order, Corporal Robinson engaged in sexual intercourse with the woman at her residence on the military installation. For the first time on appeal, the appellant alleged the commander who issued the order was disqualified from convening the court-martial because it raised “at least the appearance that [LtCol Knapp] improperly influenced the court-martial proceedings, therefore disqualifying him as a convening authority."

The NMCCA looked for evidence that, “under the particular facts and circumstances... a reasonable person would impute to him a personal feeling or interest in the outcome of the litigation. United States v. Jeter, 35 M.J. 442 (C.M.A. 1992) (quoting United States v. Gordon, 2 C.M.R. 161, 166 (C.M.A. 1952))." The NMCCA found no evidence that LtCol Knapp had a personal feeling or interest in the outcome of the case and affirmed.

In footnote 1, the court found "unacceptable" appellate defense counsel’s failure “to cite most of the pertinent case law regarding whether the convening authority in this case is an accuser. We remind all counsel that they are ‘not required to make a disinterested exposition of the law, but must recognize the existence of pertinent legal authorities.’ Judge Advocate General Instruction 5803.1C, Rule 3.3, Comment 2 (9 Nov 2004).”

United States v. Robinson, NMCCA 200602201 (N-M. Ct. Crim. App. Jun. 6, 2007)

New CAAF Grants

2007-06-29T20:30:00.000-04:00

After a slow start, CAAF has picked up the pace of granting petitions for review for next term. In a Daily Journal entry for 28 June, the Court noted that petitions had been granted in the following cases:

(1) No. 07-0229/NA. U.S. v. Laprie D. TOWNSEND. CCA 200501197. Review granted on the following issue: Whether the military judge erred when he denied Appellant's challenge for cause against lieutenant [B].

The NMCCA summarized the facts of the voir dire as follows:

The individual voir dire of LT B provided the following information about that member. First, LT B had attended the non-lawyer legal officer course; however, he would follow the military judge’s instructions even if they differed from what he learned in his previous training. Second, at the time of trial, LT B was attending law school and was taking a criminal law class, in which he was studying the concepts of self-defense, the use of force, the theories of intent, and cooling-off period. However, he stated that he could follow the military judge’s instructions even if they differed from what he learned at law school and from his own personal experience. Third, LT B hoped to become a criminal prosecutor, but that didn’t influence him or bias him toward the prosecution. He stated that the accused had to be proven guilty beyond a reasonable doubt. Fourth, LT B’s father is in law enforcement and LT B had a healthy respect for law enforcement personnel. However, he would follow the military judge’s instruction to use the same factors when weighing the credibility of a Naval Criminal Investigative Service (NCIS) Agent as he would any other witness. Fifth, LT B had high respect for military defense counsel because they were officers and therefore had high ethics and morals. LT B had less respect for defense counsel depicted on television and those out in the civilian world. Record at 216-38.

United States v. Townsend, NMCCA 200501197 (N-M. Ct. Crim. App. Jan. 12, 2007). Apparently the defense counsel in this case was a military officer.

(2) No. 07-0412/AR. U.S. v. Kerry T. WRIGHT II. CCA 20051233. Review was granted on the following issue: Whether the Army Court Of Criminal Appeals erred in finding appellant's plea of guilty to the specification of charge I and to charge I, false official statement, provident when the statement in question was not, in fact, false.

I could not find the ACCA opinion on its website.

(3) No. 07-0553/NA. U.S. v. Christopher A. BOLSINS. CCA 200602408. Review was granted on the following issue: Whether the action of the Court of Criminal Appeals in affirming a Clause 2 (service discrediting conduct) offense under Article 134, UCMJ, after it found charged Clause 3 (crime and offense not capital) offense to be improvident, added an element to the offense in contravention of Apprendi v. New jersey, 530 U.S. 466 (2000), Jones v. United States, 526 U.S. 227 (1999), and Schmuck v. United States, 489 U.S. 705 (1989).

Not sure of the facts as I couldn’t find the NMCCA opinion on this case.

Courts of Criminal Appeals

2007-06-28T21:18:00.000-04:00

(1) The NMCCA has reported 15 new cases on their web site. This is the first NMCCA posting of decisions in about 45 days.

(2) On 25 June, the AFCCA released its opinion in United States v. Miller, Misc. Dkt. 2007-02 (A.F. Ct. Crim. App. Jun. 25, 2007). This was an Article 62 appeal after the military judge suppressed a positive urinalysis and the accused's confession drug charges against the accused because (1) a written memorandum directing the accused to provide a urine specimen was invalid, and (2) the installation’s standing urinalysis program as applied to the accused did not amount to an order for inspection. The accused was an reservist assigned to an Air Reserve base. The base's urinalysis program did not meet the legal standards for inspection testing under the Air Force instruction and Mil. R. Evid. 313. The AFCCA denied the Government appeal.

Friends

2007-06-28T21:09:00.000-04:00

On 28 June, the European edition of Stars and Stripes reported that last week a flight surgeon from Ramstein Air Base, Germany, pled guilty at a court-martial to possession of cocaine and ecstasy . German customs agents at the Swiss-German border discovered the drugs during a routine inspection on the train Major ChristopherDrew was riding. Major Drew told investigators that he was carrying the drugs for his friends. Major Drew was sentenced to a dishonorable discharge and confinement for 20 days.

CAAF Reassesses Sentence

2007-06-25T19:10:00.000-04:00

In United States v. Resch, No. 06-0863/AR (C.A.A.F. Jun. 22, 2007), a military judge accepted the accused's guilty plea to larceny and breaking restriction. The accused also pled guilty to an unauthorized absence, but the military judge convicted him of the charged offense of desertion. The CAAF held that the military judge improperly considered the matters presented during the providence inquiry to unauthorized absence in his decision to convict the accused of desertion. Judge Stucky dissented in part.

Judge Stucky objects to two parts of the majority opinion: (1) the assertion that the accused did not know the judge was going to consider matters in the stipulation in determining if the accused was guilty of the greater offense of desertion; and (2) the military judge improperly considered the accused's statements during the providence inquiry to find the accused guilty of desertion.

Judge Stucky points out that the stipulation specifically noted that all matters included in it, and the several other documents attached to the stipulation, were admissible both for the providence inquiry and at trial. During that providence inquiry, the accused raised several matters in extenuation and mitigation of his absence which might militate against finding him guilty of desertion. The trial counsel smelled a rat and sought confirmation that the judge would not use the providence inquiry to determine Appellant's guilt on the greater offense of desertion. Trial counsel noted that the accused had not been subject to cross-examination during the providence inquiry and that it was improper to consider such matters in a trial on the merits. The defense counsel pleaded with the judge to consider it and went so far as to argue that he could even consider it to establish the elements of the offense. The judge overruled the trial counsel's objection and stated he would consider the providence inquiry. That, Judge Stucky argues, is invited error, and we don't reward an accused who convinces a judge to err.

This is clearly invited error. I doubt the defense counsel had any notion that he was convincing the judge to screw up. He or she just wanted to get the defense before the judge without subjecting the client to cross-examination. And the trial counsel understood exactly what was happening. Alas, the appellant's victory is a hollow one. The Court affirmed the sentence.

There is another issue that neither the majority nor the dissent discusses -- confirmation of the sentence. The only mention of the sentence is as follows:

The decision of the United States Army Court of Criminal Appeals as to the findings of guilty of desertion terminating on March 17, 2003 is reversed and that specification and charge are dismissed. A finding of guilty of unauthorized absence in violation of Article 86, UCMJ, terminating on January 22, 2003, and the remaining findings and sentence are affirmed.

In order to affirm the sentence after finding error, the CAAF must have reassessed the sentence. Where does the authority to do so come from? What standard does the Court apply?

The CCAs clearly have the authority to reassess a sentence. Article 66(c), UCMJ. But if a CCA had affirmed the sentence in the words used by CAAF in this decision, the CAAF would have set it aside and returned it for compliance with United States v. Suzuki, 20 M.J. 248 (C.M.A. 1985) and United States v. Sales, 22 M.J. 305 (C.M.A. 1986). In those cases, the Court held that when a court of criminal appeals reassesses a sentence due to prejudicial error, "it must assure that the sentence is no greater than that which would have been imposed if the prejudicial error had not been committed." Suzuki, 20 M.J. at 249. Evidently, the CAAF doesn't have to do that.

Of course, the Suzuki/Sales rule is one of those rules Chief Judge Everett made up without citation to statute or case law. Instead, he notes that "[o]nly in this way can the requirements of Article 59(a), UCMJ, 10 U.S.C. 859, be reconciled with the Code provisions that findings and sentence be rendered by the court-martial, see Articles 51 and 52, UCMJ, 10 U.S.C. §§ 851 and 852, respectively." Suzuki, 20 M.J. at 249. But that is an argument the Supreme Court specifically rejected almost 30 years earlier.

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.

Jackson v. Taylor, 353 U.S. 569, 579 (1957).

As has been expressed at CAAFlog, the Suzuki/Sales rule doesn't make a lot of sense. Court members, especially in today's world with so few contested cases, often have little experience in sentencing. Especially under these circumstances, its hard to argue with the Supreme Court -- no one could say what the court martial would have done absent the error. It might be a different story if the CCA was guessing what a judge would have done.

Regardless, it appears that the CAAF is claiming the the authority to reassess a sentence and doesn't have to explicitly state that they have complied with Suzuki/Sales. It is also surprising that CAAF refuses to grant to the judges on the CCAs the same presumption that they give to trial judges -- that they know and apply the law correctly.

Death of a Daughter

2007-06-25T16:49:00.000-04:00

The appellant was convicted of the unpremeditated murder of her daughter by swinging her around and striking her head against a wall, and other offenses. United States v. Harrow, No. 06-0474/AF (C.A.A.F. Jun. 22, 2007). Judge Ryan had the task of answering all 6 issues on which the Court granted review:

(1) A witness who states that he does not remember or recall facts he related in a former statement may be impeached with a prior inconsistent statement. Citing United States v. Damatta-Olivera, 37 M.J. 474, 478 (C.M.A. 1993); United States v. Meghadi, 60 M.J. 438, 444 (C.A.A.F. 2005).

(2) The Court somewhat tepidly endorsed the Supreme Court's decision in Mathews v. United States, 485 U.S. 58, 64-65 (1988)): “A simple plea of not guilty . . . puts the prosecution to its proof as to all elements of the crime charged . . . .” Therefore the Government has a right to put on Mil. R. Evid. 404(b) evidence to show intent, even if the accused is not contesting that element of the offense.

(3) Profile Evidence. “Profile evidence is evidence that presents a characteristic profile or trait of an offender, and then places the accused’s personal characteristic or trait within that profile as proof of guilt. United States v. Rynning, 47 M.J. 420, 422 (C.A.A.F. 1998).” The Court then cited to United States v. Banks for the proposition that

"generally, use of any characteristic 'profile' as evidence of guilty or innocence in criminal trials is improper. 36 M.J. 150, 161 (C.M.A. 1992). Such evidence is improper because it treads too closely to character evidence offered to show than an accused acted in conformity with that character and committed the act in question, evidence prohibited under M.R.E. 404(b). See Banks, 36 M.J. at 161.

Banks actually relied on Mil. R. Evid. 404(a)(1), not 404(b).

The Court concluded that two aspects of the Government expert’s testimony were error because they are focused on characteristics of the abuser, as opposed to characteristics of the child: (1) “the statements that the most common person to fatally abuse a child is a biological parent, and [(2)] the statement that the most common trigger for baby shakings is persistent crying.”

I am at a loss as to how (2) focuses on the characteristics of the accused and then places the accused's character trait within that profile.

This was very harmless error -- only the accused or the girl's father could have done it, so they both fit within the profile.

(4) The appellant claimed her plea to defrauding an insurance company for damages to an automobile was improvident.

We reject Appellant’s suggestion that the military judge’s failure to elicit how Appellant “knew it was her representation that deceived the insurance company,” or “why her misrepresentation was an important factor in the insurance company’s decision to pay,” or “when the $729.65 was paid by the insurance company to Airman Hill,” alone or together, create any basis, let alone a substantial basis, in law or fact for questioning the sufficiency of the plea to this offense. See United States v. Faircloth, 45 M.J. 172, 174 (C.A.A.F. 1996) (declining to speculate post-trial on factual matters that might have been contested at trial in the context of examining whether
a guilty plea was provident).

(5) Despite the fact the appellant was an E-1, in reassessing her sentence the AFCCA ordered her reduced to E-1. Error, but no prejudice.

(6) Post-trial and appellate delay. Error in length of time from trial to AFCCA decision (case was sent back twice to fix the promulgating order), but no prejudice.

Chief Judge Effron had reservations with the majority's rationale in answering questions 1 and 3, but concurred in determining any error was harmless.

Hitler, bin Laden, and Saddam

2007-06-23T20:28:00.000-04:00

In United States v. Erickson, No. 06-0715/AF (C.A.A.F. 22 Jun. 2007), the Court was faced with a sentencing argument in which the trial counsel invoked the names of Hitler, Saddam Hussein, and Osama bin Laden. Trial Counsel was trying to set up a dichotomy between the evil that is clear, present, and obvious and evil that is hidden. His point was that hidden evil, such as the accused sexually molesting his two daughters and then ordering them not to tell anyone, is worse than open and notorious evil. Appellant did not object to this argument. The military judge sentenced the accused to life in prison with the opportunity for parole. The Air Force Court of Criminal Appeals reviewed for plain error. It held the error was plain and obvious, but did not prejudice the sentence.

On appeal at CAAF, the only question was whether the obvious error, as found by the AFCCA, was prejudicial. All five judges agreed there was no prejudice. Judge Stucky, joined by Judge Baker, concurred but criticized the majority’s rationale.

Judge Erdmann analyzed this case using the three-part test that he developed in United States v. Fletcher, 62 M.J. 175, 184 (C.A.A.F. 2005), to determine whether a prosecutor’s findings argument in a members trial was prejudicial. The test looked at the severity of counsel’s misconduct, the military judge’s curative measures (normally instructions to the members), and the weight of the evidence supporting the accused’s conviction. Judge Erdmann concluded that, while the second Fletcher factor “adds little to the analysis in a judge alone trial, there is no reason not to apply the first and third factors in that context.” The majority concluded that the weight of the evidence for a substantial sentence in this case -- including life in prison with the opportunity for parole -- persuasive. “We find that the weight of evidence clearly supports the Court of Criminal Appeals’ determination that Erickson would have received the same sentence irrespective of trial counsel’s improper comments.”

Judge Stucky correctly points out that it doesn’t make much sense to apply Fletcher, or even the first and third Fletcher factors, in a judge alone case. There is a presumption in law that the military judge understands and applies the law correctly. One would expect that to overcome the presumption an appellant would have to show something in the record to suggest that the judge either didn’t know the law or didn’t apply it correctly. But if you applied Judge Erdmann’s test, the presumption apparently may be overcome if the prosecutor’s misconduct is severe and the weight of the evidence is less than overwhelming. And if curative measures “add little to the analysis,” it suggests a truly absurd result: The military judge couldn’t cure the error by stating she wouldn’t consider the argument. I realize this is just a case of sloppy draftmanship, but you have to wonder why the majority didn’t fix their opinion when faced with the concurring opinion.

Perhaps too much pride of authorship?

It appears none of the judges was impressed with the appellant's argument that his sentence was greater than normal in a child sexual abuse case. Judge Erdmann eloquently explains why this was not the normal child sexual abuse case. He writes of the severe trauma and emotional scarring that the appellant inflicted on his entire family. Just read what the appellant did to his younger daughter:

Erickson abused the younger daughter starting when she was five and continuing until she was ten. He had sex with her as often as several times a day; had oral sex with her; attempted anal sex; fondled and kissed her; took showers and baths with her; penetrated her with a dildo; showed her pornographic videos; placed her in sexual situations with her brother and the family dog; took naked pictures of her; and had phone sex with her.

Sodoku in Court?

2007-06-22T21:54:00.000-04:00

United States v. Moran, No. 06-0207/AF (C.A.A.F. Jun. 22, 2007) is one of those stranger than fiction cases. The appellant was suspected of using controlled substances. Investigators asked him to consent to provide body hair for testing. He refused. The investigators eventually obtained a search authorization but the appellant had gone to see his attorney. When he finally returned, his body was hairless; he apparently shaved off all of his body hair. Trial counsel asked questions of three witnesses that invoked responses revealing the appellant had invoked his constitutional rights.

To Agent TWB, the trial counsel asked, under what authority was the AFOSI asking for the hair specimen from the appellant. TWB replied: “Initially we tried consent. And he didn’t consent to . . . us collecting [his] body hair.”

To former Agent RF, the trial counsel asked if they collected any hair. Agent RF said that, after they obtained a search authorization, they went to see the appellant’s first sergeant. The first sergeant told them the appellant was en route to see his attorney. They asked the first sergeant to call him and tell him to turn around. “He allowed Airman Moran to continue to see his -- see his attorney.”

The trial counsel also asked RF what the appellant’s explanation for shaving off all his hair was. The agent didn’t ask. Not deterred by what he knew would be the answer, the trial counsel plunged onward: “You didn’t inquire?” RF responded: "The reason I didn’t inquire was I felt that was an incriminating question and . . . he’d already asked for counsel.”

The trial counsel asked a local police officer questions about an accident in which the appellant was involved. The officer said that he offered the appellant a consent form to draw blood, but he refused to sign it.

In closing argument, the trial counsel offered the following:

Now these drug charges. What’s probably certainly close to some of the most damning evidence that you have in this courtroom today is the fact that on March 20th he is called into [the] investigations office . . . . The OSI says, “we would like to take your hair.” He says, “No, thank you. I want to speak to my attorney first.”

The Court summarizes the posture of the case at trial:

Though Appellant requested and received an instruction on his right to remain silent, defense counsel did not object to either the witnesses’ or trial counsel’s statements. Further, there were no sua sponte curative or limiting instructions to the members mitigating any potential prejudice.

You have to wonder if the defense counsel and the judge were sleeping or engaged in a particularly difficult New York Times Sodoku puzzle.

All 5 judges decide the trial counsel's argument was error and assume without deciding that the witness testimony was also error. Nevertheless, any error was harmless beyond a reasonable doubt. Chief Judge Effron and Judge Erdmann write separately to voice concerns over matters in Judge Baker’s decision that they think are unnecessary for the resolution of the case -- e.g., a discussion of implied consent doctrine.

Judge Fumbles DuBay Hearing

2007-06-22T20:12:00.000-04:00

The appellant’s urine specimen, from a unit drug inspection, tested positive for ecstasy. It was clear from his opening statement that the appellant would challenge the reliability of the urinalysis testing procedure and results, as well as claim innocent ingestion -- his girlfriend would testify that he had a headache and she got what she thought was aspirin from another patron of the bar they were at, and gave it to the appellant. United States v. Key, No. 04-0216/AF (C.A.A.F. Jun. 22, 2007).

The Government had SSgt L, an undercover informant, testify that the appellant appeared nervous and agitated at the urine specimen collection site and, that about 3 weeks before that he had telephoned her and invited her to use ecstasy with him in another airman’s apartment. She did not go when the AFOSI couldn’t support her.

Maj Martin, the appellant’s defense counsel “vigorously” cross-examined her, asking whether she had received any compensation from AFOSI. She said they gave her expense money on more than one occasion. Maj Martin introduced documents showing AFOSI paid her just over $200. After SSgt L had testified in 4 courts-martial, including the appellant’s, AFOSI paid SSgt L $250 “for a job well done.”

Months later, Maj Martin, then assigned as an asst SJA at another location, learned from an AFOSI agent that SSgt L had received the $250 after the trial. He challenged SSgt L's credibility at trial and at his pretrial interview with her. Eventually, the CAAF ordered affidavits and then a post-trial hearing. The judge who conducted the hearing apparently didn’t understand what she was supposed to be doing. She refused to allow Maj Martin to testify because his testimony lacked relevance, the likelihood of confusion, and apparently concerns for the attorney-client privilege.

The Air Force Court of Criminal Appeals granted the defense motion to submit Maj Martin’s affidavit and concluded that any issue as to his testifying at the DuBay hearing was thus moot. The AFCCA affirmed. In his affidavit, Maj Martin was unsure of the exact wording of questions he put to SSgt L prior to trial, but he thought they would have been sufficient to elicit that she had been originally offered an incentive payment by the AFOSI but turned it down. Of course the AFOSI claimed they never discussed other than expense payments until they gave her the money months after the appellant’s trial.

Writing for a majority of 3, Judge Stucky concluded that the military judge erred in not allowing Maj Martin to testify: (1) of course his testimony was relevant; (2) who did the judge think would be confused by his testimony? -- the appellate courts?; and, if any attorney-client privileged issues arose, the appellant could waive them.

Nevertheless, the majority concluded the error was harmless. They considered Maj Martin’s affidavit and concluded it did not provide a significant basis to impeach SSgt L as Maj Martin could not be sure what he asked her. SSgt L's affidavit and testimony at the DuBay hearing were the only evidence she even knew there was such a thing as incentive payments and there was absolutely no evidence she ever took an incentive payment before trial.

Judge Ryan, joined by Chief Judge Effron, dissented. They want the case sent back so that the DuBay hearing originally ordered could be done correctly. It appears the court-martial was held in 2001. Although I can understand Judge Ryan's position, I can't imagine a DuBay hearing some six years after the fact would render any reliable evidence of what happened in 2001. Would Maj Martin be able to remember more now than when he composed his affidavit? I doubt it.

The Need for CAAF

2007-06-22T19:19:00.000-04:00

Despite the protests of the military services, Congress decided that it was necessary to have a civilian court sitting at the top of the military justice system. After what many thought was a military justice debacle during World War II, Congress just didn’t trust the military to get the justice system right. Although I often criticize the Court, there is a need for the CAAF and United States v. Albaaj, 07-0002/AR (C.A.A.F. Jun. 21, 2007) is an example of why.

As part of voir dire, the military judge asked the members if any of them knew “Emad,” a name that appeared in some of the specifications. Maj Melcher said he did not. Emad, the accused’s brother testified for 21 pages in the record on findings and briefly on sentencing. After trial, Emad reported that he knew Maj Melcher and their contact had been less than cordial.

The evidence from the DuBay hearing shows that Emad worked on the installation and Maj Melcher had sent some rather strong emails denigrating Emad’s performance and questioning his honesty. The accused reported his brother’s antagonistic relationship with Maj Melcher to the convening authority. The convening authority granted no relief.

The Army Court of Criminal Appeals ordered a post-trial DuBay hearing. Maj Melcher admitted that he recognized Emad when Emad took the stand and, although he initially had a negative opinion of Emad, his opinion had changed and he had a favorable opinion of him before trial. The judge conducting the hearing determined there was no basis upon which to challenge Maj Melcher for cause. The ACCA affirmed.

This was a serious case. The appellant was convicted of a number of offenses including sodomy, assault with a means likely to produce death or grievous bodily harm, indecent acts, and making a false official statement. The approved sentence included a DD and 10 years confinement. The military judge and the ACCA tried to save a case that could not be saved. This is one that is so obvious, the base SJA should have seen the writing on the wall and convinced the convening authority to order a new trial.

I see the importance of this case as affirming that a court member has a continuing duty of candor to the court and, whether told to or not, must correct his voir dire answers when he learns they were not accurate. The Court found Maj Melcher's failure to inform the trial court he knew Emad to be juror misconduct requiring reversal of the conviction.

The Court employed the two-part test from United States v. Mack, 41 M.J. 51, 55 (C.M.A. 1994) to resolve the issue: A party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause. The Court cites to R.C.M. 912(f)(1)(N) as the valid basis for a challenge for cause, but doesn’t quote it or explain it. Instead, the opinion is about implied bias and actual bias. R.C.M. 912(f)(1) states that a “member shall be excused for cause whenever it appears that the member: (N) Should not sit as a member in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality.” I’d say Maj Melcher sitting on the court would impair having the court-martial free from substantial doubt as to its fairness and impartiality.

That should end the case. Does any one have any clues as to why the CAAF is so enamored of the actual and implied bias analysis and refuses to discuss R.C.M. 912?

CAAF Dump 2

2007-06-22T19:09:00.000-04:00

In what may be the final dump of the year, the Court released 8 opinions today.

U.S. v. Cabrera-Frattini	07-5001/MC(PDF)	Jun 22, 2007
U.S. v. Resch	06-0863/AR(PDF)	Jun 22, 2007
U.S. v. Brown	06-0857/AF(PDF)	Jun 22, 2007
U.S. v. Erickson	06-0715/AF(PDF)	Jun 22, 2007
U.S. v. Leedy	06-0567/AF(PDF)	Jun 22, 2007
U.S. v. Harrow	06-0474/AF(PDF)	Jun 22, 2007
U.S. v. Moran	06-0207/AF(PDF)	Jun 22, 2007
U.S. v. Key	04-0216/AF(PDF)	Jun 22, 2007

CAAF Term of Court

2007-06-22T16:39:00.000-04:00

On 21 June 2007, the CAAF announced a new term of court. The term of court that beings on 1 October 2007 will end on 31 August 2008. Thereafter, all terms will begin on 1 September and end on 31 August. No explanation for the change was provided. There must be a CAAF expert out there who knows. Would the esteemed Colonel Sullivan of CAAFlog care to venture an opinion?

CAAFlog Victorious

2007-06-22T16:08:00.000-04:00

Sacramentum doffs his cap to Colonel Dwight Sullivan of CAAFlog for being first to complete postings on all six of the opinions CAAF released yesterday. Now he needs to get a life and let me make a comeback.

Wrongful Introduction, Art. 112a

2007-06-21T20:27:00.000-04:00

In a 3-2 split, the Court held that to be guilty of the Article 112a, UCMJ, offense of wrongful introduction of a controlled substance on to a military installation the accused had to know that he possessed the controlled substance and know that he transported the drugs onto a military installation. United States v. Thomas, No. 06-0350/NA (C.A.A.F. Jun. 21, 2007).

The appellant was stopped on a military installation for making an illegal U-turn about an hour after he smoked a marijuana cigarette. During a subsequent search of his vehicle, a bag containing a trace amount of marijuana was discovered. United States v. Thomas, NMCCA 200401690 (N-M. Ct. Crim. App. Dec. 19, 2005). The appellant pled guilty in a special court-martial of physically controlling an automobile while impaired by marijuana (Article 111, UCMJ) and wrongful introduction of marijuana on a military installation (Article 112a). In a stipulation of fact, the parties agreed that the appellant "did not pass through a security gate and was unaware that he was driving on military property." In light of the stipulation, the military judge was reluctant to accept the plea. Nevertheless after considering the issue, he decided that the only knowledge required for the offense of wrongful introduction was knowledge of the presence of the drug. The NMCCA affirmed.

Writing for the majority, Judge Stucky accepts the elements of the offense as explained by the President in the MCM pt. IV, ¶ 37b(4): (1) that the accused introduced the drugs onto an installation and (2) the introduction was wrongful. He notes that in possession cases the Court has required knowledge of the presence of the substance and knowledge of its contraband nature. Citing United States v. Mance, 26 M.J. 244, 253-54 (C.M.A. 1988). Although left unstated, Judge Stucky seems to rely on the analogy: if knowledge of the presence of the substance and knowledge of the nature of the substance is required in a possession case, then in an introduction case knowledge is required that the accused was introducing the drug on the installation.

Judge Stucky cites the Military Judges’ Benchbook in support -- or at least he endorses it as a correct statement of the law. But while Judge Stucky adopts the President’s two-element test for the offense, the Benchbook claims there are four elements.

Both of the Court’s Marines dissent, but do so in separate opinions. Both rely on a statutory interpretation of Article 112a, but Judge Baker’s is more difficult to understand. Judge Baker begins well, pointing out that “different elements within a statute can require different measures of intent.” But then the wheels start to come off. Without any citation he states: “In the context of the UCMJ, it is well-established that, unless otherwise precluded from doing so, the President can define elements of offenses pursuant to Congress’s delegation of authority under Article 36, UCMJ, provided that the exercise of such authority is neither contrary to or inconsistent with the provisions of the UCMJ.” As noted by Colonel Sullivan at CAAFlog, the CAAF has long held that the President’s rule-making authority under Article 36 does not extend to matters of substantive criminal law, like the elements of a statutory offense. United States v. Mance, 26 M.J. 244, 252 (C.M.A. 1988) (citing Ellis v. Jacob, 26 M.J. 90, 92-93 (C.M.A. 1988)). It is the function of courts to define elements of a statutory offense. Judge Baker adopts the President’s definition of the term “wrongful” -- without legal justification or authorization -- and decides that the only knowledge required is that the accused possessed the controlled substance.

Judge Ryan’s dissent is shorter and is consistent with her other opinions -- let’s look to the words of the statute first. She notes that wrongful, as used in terms of Article 112a, and its predecessors, has required “an accused’s knowledge of the existence of the drug or ‘awareness or consciousness of the physical presence of the drug on his person.’” Quoting from United States v. Hughes, 17 C.M.R. 374, 377 (C.M.A. 1954).

As Colonel Sullivan notes, it is peculiar that the question the CAAF answers in this decision hasn’t been answered before. And although I know he doesn’t mean it, he says he doesn’t care about the decision “since the majority tells us that possession is an LIO of introduction and the maximum punishment for the two offenses is the same. So Seaman Recruit Thomas manages to win his appeal without actually winning anything.”

Although the opinion did say the maximum punishment for the two offenses was the same, I don’t think that is quite correct. Unless the MCM has changed, they are only the same if the possession is of more than 30 grams. The NMCCA opinion makes it clear that the appellant only possessed “a trace amount.” For possession of less than 30 grams of marijuana, the max is DD, 2 years. For introduction of any amount, the max is DD, 5 years. MCM pt. IV, ¶ 37e.

Article 112a has caused more trouble than any other statute in the UCMJ -- even more than Articles 133 and 134. And the CAAF and CMA opinions on it have been disasters. Most of us, I hope all of us, could agree that Congress meant that an accused have knowledge that he possessed contraband before he could be convicted of any offense under Article 112a. But did we really need a convoluted opinion like Mance to do it?

While not an overwhelming fan of the Model Penal Code, it is at least instructive in suggesting that use of terms such as wrongful are not helpful or useful and that the mens rea of each element of an offense should be spelled out.

CAAF Dump

2007-06-21T18:26:00.000-04:00

In a surprise, CAAF released 6 opinions today. By my calculations (more like guess work) that leaves only 10 opinions, give or take a few, to be released before the term ends on 30 September.

U.S. v. Albaaj	07-0002/AR(PDF)	Jun 21, 2007
U.S. v. Jameson	06-0881/MC(PDF)	Jun 21, 2007
U.S. v. Sanchez	06-0617/AR(PDF)	Jun 21, 2007
U.S. v. Wilson	06-0503/NA(PDF)	Jun 21, 2007
U.S. v. Thomas	06-0350/NA(PDF)	Jun 21, 2007
U.S. v. Pflueger	05-0139/MC(PDF)	Jun 21, 2007

I will discuss three of the cases here. At first glance, the others seem more involved and will have to await comment after I have had a chance to review them more carefully.

United States v. Pflueger

In United States v. Pflueger, the convening authority had suspended the BCD and ordered it remitted at the end of the 12-month suspension period unless it was sooner vacated. The NMCCA noted that it took almost a year for the CA action and three more years before the case arrived at the court. Finding the delays “both unreasonable and unconscionable,” the court determined that sentencing relief was appropriate under United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002)). But the relief the NMCCA ordered was to set aside the BCD that had already been remitted

Writing for a unanimous court, Chief Judge Effron guides the reader through the intricacies of Articles 58b, 60, 61, and 66, UCMJ. Court holds that the BCD no longer existed for the NMCCA to set aside. Case is remanded to the NMCCA to grant meaningful relief.

United States v. Wilson

At a contested trial, the accused was convicted of rape, assault, adultery, and unlawful entry into a dwelling. The members sentenced Wilson to
confinement for eight years, forfeiture of all pay and allowances, reduction to pay grade E-1, and a dishonorable discharge. The convening authority's action stated "that part of the sentence extending to confinement in excess of 3 years and 3 months is disapproved. The remainder of the sentence, with the exception of the Dishonorable Discharge, is approved and will be executed."

Judge Erdmann, writing for the majority, relies on R.C.M. 1107(f)(4): "The action shall state whether the sentence adjudged by the court-martial is approved." He concludes that "the convening authority used facially clear and unambiguous language that excluded the dishonorable discharge from approval." Slip op. at 5.

Chief Judge Effron and Judge Baker dissent separately. Chief Judge Effron argues that the action is incomplete and therefore should be sent back to the convening authority for a new action that would clarify whether the intended to approve the discharge. Judge Baker argues for the same results but contends the action is ambiguous rather than incomplete.

United States v. Sanchez

The appellant was convicted of the rape and forcible sodomy of his 8-year-old stepdaughter. On appeal he contested the admissibility of the testimony of the expert witness who testified that the victim was "concerning for abuse."

Judge Ryan, writing for the majority, concluded the military judge did not abuse her discretion in admitting the testimony of the expert. The case includes a discussion of the rules for expert testimony under the Military Rules of Evidence, Daubert, and Kumho Tire.

Chief Judge Effron concludes the expert witness's testimony was not based on a reliable methodology.

Confrontation Clause Case

2007-06-20T19:13:00.000-04:00

In a unanimous opinion authored by Judge Ryan, the CAAF held that a forgery affidavit was not testimonial such as to invoke the Constitution's Confrontation Clause. United States v. Foerster, No. 07-0093/AR (C.A.A.F. Jun. 20, 2007).

While deployed to Iraq, Sgt Porter reported to his chain of command and law enforcement authorities that someone had forged his signature to some of his checks and cashed them. When he returned to the U.S., Sgt Porter's bank required him to file a forgery affidavit before they would reimburse him for the money that was taken from his account. Sgt Porter completed the form, which required him to swear to the fact that neither he nor an authorized signatory was responsible for the checks being signed or cashed and listed each check and the payee. The forgery affidavit did notify Sgt Porter that it would be stored at the bank and might be turned over the law enforcement. The accused was the payee on the checks.

By the time of trial, Sgt Porter was redeployed to Kuwait for training before heading into Iraq. Citing Sgt Porter's leadership role, his commander declined to return him to the U.S. for the trial.

The accused objected to the admission of the forgery document on hearsay and Confrontation Clause grounds. Trial was conducted before the recent Confrontation Clause cases of Crawford v. Washington, 541 U.S. 36 (2004) and Davis v. Washington, 126 S. Ct. 2266 (2006). The judge concluded that the forgery affidavit was a business record, that the business record exception to the hearsay rule is firmly rooted, so no further Confrontation Clause analysis was necessary. The ACCA affirmed.

The CAAF held that the Confrontation Clause applied only to testimonial evidence and this forgery affidavit was not testimonial. Using a variation of the analysis adopted by the Court in United States v. Rankin, 64 M.J. 348, 351 (C.A.A.F. 2007), for determining whether evidence was testimonial, the CAAF found that: (1) although later turned over to law enforcement the forgery affidavit was not elicited or made in response to a prosecution inquiry; (2) the document listed or catalogued objective facts and was not an accusatory statement; and (3) the primary purpose of the bank in eliciting the forgery affidavit was to protect itself from fraud by the account holder, and the primary purpose of Sgt Porter was to be reimbursed for the missing funds.

Concluding the Confrontation Clause did not bar admission of the document, the CAAF examined whether it was otherwise admissible. The Court held that the military judge was correct in determining it was admissible under the business records exception to the hearsay rule. Mil. R. Evid. 803(6).

Some commentators have speculated that evidence that passes Confrontation Clause analysis need not be analyzed under the hearsay rules. The Court didn't need to, and didn't, express an opinion on this issue.

Ouch!!!

2007-06-19T19:01:00.000-04:00

In United States v. Hollings, No. 07-0084/MC, issued today, CAAF took a polite swipe at the appellate defense counsel for being less than candid with the tribunal: "We are left to wonder whether we are reviewing a different record of trial." At 6.

The sole issue in the case was whether the military judge erred by failing to grant a defense challenge for cause against a chief warrant officer court member "who served as acting legal officer to the convening authority in appellant's case." According to Judge Baker, writing for a unanimous court, there was no evidence the CWO acted as a legal advisor to the convening authority on any case.

That all five judges signed on to such an unusual action should send a message to counsel. I doubt he will be citing this case on his resume.

I bet the oral argument was interesting.

Air Force Cases

2007-06-18T19:10:00.000-04:00

The Air Force Court of Criminal Appeals dumped a bunch of decisions on their web site. A large number of the opinions are per curiam, in which the court spends a couple of pages describing the law on the legal issue and a few facts, but then summarily dismisses the alleged error without really applying the law to the facts. So it is difficult to determine if the court decided the case correctly.

One such example is United States v. Davis, ACM 36490 (A.F. Ct. Crim. App. Jun. 13, 2007). The sole assignment of error was that the appellant's defense counsel was ineffective by failing to submit matters in clemency to the convening authority. The AFCCA notes the Strickland v. Washington, 466 U.S. 668, 687 (1984), standard for reviewing ineffectiveness of counsel: deficient performance and prejudice. The AFCCA resolves the case in the following two paragraphs:

As to the assignment of error, we have reviewed the record of trial, the assignment of error, and the government's answer thereto. The appellant was advised, on several occasions, of his right to submit post-trial matters for consideration by the convening authority. Furthermore, the appellant repeatedly acknowledged his understanding of that right. Although the appellant indicated in writing that he desired to submit matters, after an extension of time to submit such matters was granted, no matters were submitted and the convening authority took action. "Failure to submit matters within the time prescribed by this rule shall be deemed a waiver of the right to submit such mattes (sic)." Rule for Courts-Martial 1105(d)(1). Clearly, the appellant waived this right. The appellant has failed to meet his burden of proving deficient performance.

Assuming, arguendo, the appellant has overcome the presumption of competence of counsel, there is absolutely no evidence provided by the appellant, or otherwise, to support any finding of prejudice. Although the trial defense counsel submitted an affidavit and a number of memoranda, they are not necessary as the appellant has not met his burden on this issue.

In the first quoted paragraph, the AFCCA seems to say the following: (1) the appellant had been told of, and acknowledged, his right to submit matters to the convening authority; (2) he did not timely submit such matters to the convening authority; (3) failure to submit matters is deemed a waiver of the right; and (4) therefore, the appellant's attorney's performance was not deficient. It seems the AFCCA conflated two separate legal principles. No one doubts that by failing to timely submit matters, the appellant waived clemency. The issue is whether his counsel failed to submit matters he should have and whether such a failure was ineffective assistance of counsel.

In the second quoted paragraph, the AFCCA assumes arguendo that the appellant established that his counsel was deficient, but decides that the appellant failed to show any prejudice. The AFCCA does not cite to the applicable law on the subject. To show prejudice, the appellant must show what he and others would have produced for the convening authority to consider. United States v. Perez, 64 M.J. 239, 244 (C.A.A.F. 2006). If he presents what he wanted his counsel to submit to the convening authority, there is a pretty low threshold:

However, because of the highly discretionary nature of the convening authority's clemency power, the threshold for showing prejudice is low. This Court will give an appellant the benefit of the doubt and find that "there is material prejudice to the substantial rights of an appellant if there is an error and the appellant 'makes some colorable showing of possible prejudice.'"

United States v. Lee, 52 M.J. 51, 53 (C.A.A.F. 1999) (quoting United States v. Wheelus, 49 M.J. 283, 289 (1998) (quoting United States v. Chatman, 46 M.J. 321, 323-24 (1997)).

If the appellant did present the matters he allegedly asked his counsel to submit, I expect the CAAF may remand the case for a new clemency proceeding.

Habeas Corpus

2007-06-16T13:01:00.000-04:00

Army attorneys are wrestling with a recent ruling by a U.S. magistrate judge, that was upheld by a U.S. district judge, that seems to misapply the rules for habeas corpus hearings of court-martial convictions.

In 1953, the Supreme Court held that federal habeas petitions of court-martial convictions would he reviewed differently than federal or state habeas petitions. "[W]hen a military decision has dealt fully and fairly with an allegation raised in [a habeas petition], it is not open to a federal civil court to grant the writ simply to re-evaluate the evidence." Burns v. Wilson, 346 U.S. 137, 142 (1953). "[W]hen an issue is briefed and argued before a military board of review, . . . the military tribunal has given the claim fair consideration, even though its opinion summarily disposed of the issue with a mere statement that it did not consider the issue meritorious or requiring discussion." Watson v. McCotter, 782 F.2d 143, 145 (10th Cir. 1986) (citation omitted).

After shooting a fellow soldier in Germany, Kurtis E. Armann was charged with attempted premeditated murder and conspiracy to commit premeditated murder. Prior to trial, a sanity board concluded that he was not suffering from a severe mental disease or defect at the time of the offenses and he was competent to assist in his defense. In March 1999, pursuant to a pretrial agreement that capped his confinement at 35 years, he pled guilty and was sentenced to a dishonorable discharge and confinement for 38 years. Armann v. Warden, Civil No. 04-118, 2007 U.s. Dist. LEXIS 39660 at *3-*4 (W.D. Pa. May 31, 2007).

The defense filed an appeal at the ACCA which included the apellant's personal submission under United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), alleging a lack of mental responsibility for the offenses. In support of that alleged error, the appellant noted 7 medications he had been prescribed upon arrival at the USDB. On 24 April 2001, the ACCA affirmed the findings and sentence and stated it had specifically considered the matters he had raised. Armann, 2007 U.S. Dist. LEXIS 39660 at *4-*5.

Armann's counsel filed a petition at the CAAF which included a Grostefon assertion slightly different from the one he alleged at ACCA. This time, he alleged "that he lacked sufficient mental capacity to stand trial because he had been administered toxic amounts of psychoactive substances from october 1998 through March 1999." Id. at *5. He also asked for a new trial based on newly discovered evidence. The Government did not file a separate brief, objected to the submission of new matters, and responded to allegations that the appellant was incapacitated by the drugs he was prescribed. The CAAF granted the motion to submit additional evidence, denied a petition for a new trial, and affirmed the findings and sentence as approved by the convening authority. Id. at *8-*9.

After briefly surveying the different manner in which the circuits have applied the Burns decision, the district judge focused on the 3d Circuit interpretation which is less deferential than that of the 10th Circuit. See Brosius v. Warden, 278 F.3d 239 (3d Cir.), cert. denied, 537 U.S. 947 (2002) (opinion by Judge Alito). In that case, the 3d Circuit concluded that "at least absent a challenge to the constitutionality of the statute under which the defendant was convicted, . . . inquiry in a military habeas case may not go further than our inquiry in a state habeas case." Armann, 2007 U.S. Dist. LEXIS 39660 at *18 (quoting Brosius, 278 F.3d at 245). The 3d Circuit applied the habeas standard set forth in 28 U.S.C. § 2254(d), "which conditions habeas relief on a showing that the prior adjudication of the claim 'resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court,' or 'resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented.'" Id. at 19 (quoting Brosius, 278 F.3d at 245).

The district judge then quoted, approvingly, from the magistrate judge's decision ordering an evidentiary hearing. The magistrate judge decided that since the issue of the petitioner's competency was first litigated at the CAAF and the Government relied on its brief before the ACCA, the

"issue was not fully briefed or argued before the CAAF. Moreover, the CAAF's order affirming the ACCA's decision did not in any way acknowledge the comptetency issue.

. . . .

"Given the constitutional implications raised by Petitioner's competency argument . . . this Court is unwilling to imply that the competency issue was given full and fair consideration by the CAAF, without more concrete evidence of record to support such an implication."

Id. at 21 (quoting the magistrate judge's decision).

My thoughts:

(1) When courts talk about an issue being fully briefed, they mean that the losing party had an opportunity to fully brief the issue. Who cares whether the winning party briefs the issue?

(2) Of course Armann didn't present much on the issue to the CAAF because the military attorney felt ethically obligated not to brief the issue.

(3) The district court's decision in this case is reminiscent of the CAAF's decisions regarding Suzuki/Sales. If the CCA's don't say the magic words -- the judges are sure that the sentence approved is no more than what the court members would have adjudged absent the error -- the CAAF remands. It looks like the CAAF failed to say the magic words acknowledging that they had considered the Grostefon issues. But why would the CAAF have to do so when they were deciding whether to grant the accused's petition for review? Of course the CAAF considered it before it denied review. Shouldn't there be a presumption that courts do what they are supposed to do?

(4) I think the District Court is just wrong on this one. As the circuits appear to use different standards, perhaps the Army should try to push for an appeal to resolve the issue. It would be nice if the Army let us know what they are thinking and doing about the case.

(5) I wonder how many military habeas cases are heard in PA, as opposed to KS, where the DB is located.

Aiding the Enemy

2007-06-15T20:49:00.000-04:00

Several publications, including the Starts and Stripes Middle East Edition, are reporting that charges against the former commander of the prison housing Saddam Hussein were referred to a general court-martial on 10 June and served on him on 12 June. Army Lt. Col William Steele is charged with aiding the enemy by allowing detainees to make unsupervised telephone calls, having an inappropriate relationship with an interpreter, failing to handle classified documents correctly, failing to obey an order, and possessing pornographic videos. It appears Lt. Col Steele is in pretrial confinement.

Unintended Consequences?

2007-06-15T16:27:00.000-04:00

The June 2007 issue of the ABA Journal has an interesting article entitled "Judge v. Jury," by Jason Krause, in which Andy Leipold, a professor at the University of Illinois College of Law compared the acquittal rates of federal judges with that of federal juries. Using data from the Administrative Office of the U.S. Courts, Professor Leipold discovered that the conviction rates since 1946 have averaged 75% for juries and 73% for judges. But since 1946, the conviction rate for juries has been steadily climbing from just over 60% to around 90% in 2006. Meanwhile, the conviction rate for judges has had a more erratic history, but is trending downward from more than 90% in 1946 to about 65% in 1970 to above 85% in 1980, down to below 50% in 1995 and back up to about 63% in 2006. Professor Leipold "also discovered a correlation between judicial acquittal rates and the introduction of strict federal sentencing guidelines two decades ago." At 46. "In the 14 years from 1989 through 2002, the conviction rate of federal juries increased to 84 percent while that of federal judges decreased to 55 percent." At 47.

While it is an interesting theory, the statistics provided in a chart don't lead me to the same conclusion. The guidelines took effect in 1988, yet the decline between 1980 and 1995 was almost a straight line. Professor Leipold's theory does not seem to account for the decline in the conviction rate of federal judges from above 85% in 1980 to below 70% by the time the guidelines took effect in 1988.

I would hate to see sentencing guidelines in the military justice system. But I would not be surprised if some congressman attempted to introduce legislation to establish them. After all, military sentences often seem truly disparate, even after considering matters in aggravation and mitigation. I have always considered the military sentencing system one of its major flaws. Before the existence of military judges, court members had to determine sentences. But it makes no sense now. In the last 20 years, the court-martial rate has dropped significantly, and court members often lack experience sentencing. Judge alone sentencing would not be a panacea, but I would still expect more rational and consistent sentencing than we see today.

Not Double Jeopardy

2007-06-15T13:46:00.000-04:00

An Associated Press report appearing at WRAL.com on 9 June, updated on 10 June, reports on an Article 32 investigation for a retired Army Master Sergeant who was recalled to active duty to face charges of murdering the wife and two children of an Air Force captain in 1985. According to the report, MSG Timothy B. Hennis was convicted of the offenses in 1986 and sentenced to death. The North Carolina Supreme Court overturned the conviction and he was acquitted at his second trial in 1989.

Apparently during a cold case review, investigators were able to perform DNA testing on evidence collected at the crime scene that linked the offense to MSG Hennis. Local prosecutors, barred by the Double Jeopardy Clause from retrying the case, turned the case over to the military. The Article 32 investigating officer recommended trial by court-martial.

Colonel Murphy

2007-06-14T16:51:00.000-04:00

On 11 June, Spook86, at the blog In From the Cold, reported on the charges preferred against Colonel Michael D. Murphy, a brigadier general select and former commander of the Air Force Legal Operations Agency. The reported charges are as follows:

CHARGE I: Violation of UCMJ, Article 133

Specification 1: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., did, within the United States, between on or about 31 May 2002 and on or about 30 November 2006, wrongfully and dishonorably compete for promotion within the Judge Advocate General's Corps knowing he did not possess the required qualifications of a Judge Advocate, which was conduct unbecoming an officer and gentleman.

Specification 2: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., did, at or near Washington D.C., between on or about 31 May 2002 and on or about 30 January 2005, wrongfully and dishonorably accept the position and perform duties as General Counsel for the White House Military Office and provide legal advice without a license, which was conduct unbecoming an officer and gentleman.

Specification 3: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., did, at or near Maxwell Air Force Base, Alabama, between on or about 31 January 2005 and on or about 11 July 2005, wrongfully and dishonorably accept the position and perform duties as Commandant of the Air Force Judge Advocate General's School knowing he did not possess the required qualifications of a Judge Advocate, which was conduct unbecoming an officer and gentleman.

Specification 4: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., did at or near Hickam Air Force Base, Hawaii, between on or about 12 July 2005 and on or about 21 September 2006, wrongfully and dishonorably accept the position and perform duties as Staff Judge Advocate for Pacific Air Force and provide legal advice without a license, which was conduct unbecoming an officer and gentleman.

Specification 5: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., did, within the United States, between on or about 22 October 2006 and on or about 30 November 2006, wrongfully and dishonorably accept the position and perform duties as Commander of Air Force Legal Operations Agency knowing he did not possess the required qualifications of a Judge Advocate, which was conduct unbecoming an officer and gentleman.

Specification 6: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., did, within North America, between on or about 31 May 2002 and on or about 30 November 2006, wrongfully and dishonorably present himself publicly as a United States Air Force Judge Advocate while performing trial advocacy training knowing he did not possess the required qualifications of a Judge Advocate, which was conduct unbecoming an officer and gentleman.

Specification 7: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., did, within the United States, between on or about 31 May 2002 and on or about 30 November 2006, wrongfully and dishonorably file travel vouchers for expenses to which he was not entitled, which was conduct unbecoming an officer and gentleman.

Specification 8: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., did, within the United States, from about 31 May 2002 to about 30 November 2006, wrongfully and dishonorably fail to notify Headquarters United States Air Force Professional Development Division of the termination of his license to practice law in the state of Louisiana, which was conduct unbecoming an officer and gentleman.

Specification 9: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., did, within the United States, from about 31 May 2002 to about 30 November 2006, wrongfully and dishonorably fail to notify Headquarters United States Air Force Professional Development Division of the termination of his license to practice law in the state of Texas, which was conduct unbecoming an officer and gentleman.

Specification 10: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., did, within the United States, from about 31 May 2002 to about 30 November 2006, wrongfully and dishonorably fail to notify Headquarters United States Air Force Professional Development Division of the termination of his license to practice law in the United States Fifth Federal Circuit, which was conduct unbecoming an officer and gentleman.

CHARGE II: Violation of UCMJ, Article 121

Specification 1: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., did, at or near Washington D.C., on divers occasions between on or about 31 May 2002 and on or about 31 January 2005, steal money, military property, of a value of more than $500, the property of the United States Air Force.

Specification 2: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., did, at or near Maxwell Air Force Base, Alabama, between on or about 5 June 2005 and on or about 15 June 2005, steal money, military property, of a value of more than $500, the property of the United States Air Force.

Specification 3: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., did, at or near Hickam Air Force Base, Hawaii, between on or about 11 August 2005 and on or about 18 August 2005, steal money, military property, of a value of more than $500, the property of the United States Air Force.

CHARGE III: Violation of UCMJ, Article 107

Specification 1: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., did, at or near Hickam Air Force Base, Hawaii, between on or about 21 August 2006 and on or about 30 November 2006, with intent to deceive, make an official statement in the Judge Advocate General's FLITE database, to wit: that he was licensed to practice law in Louisiana and Texas, which statement was false in that COLONEL MICHAEL D. MURPHY was not then licensed to practice law in Louisiana and Texas, and was then known by the said COLONEL MICHAEL D. MURPHY to be so false.

Specification 2: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., did, at or near Hickam Air Force Base, Hawaii, on or about 5 August 2005, with intent to deceive, make an official statement to Major General David A. Deptula, to wit: when requesting permission to teach an advocacy course at Louisiana State University School of Law, he stated "this keeps me current and fulfills my continuing legal education requirements" or words to that effect, which statement was false in that COLONEL MICHAEL D. MURPHY was not then licensed to practice law and had no continuing legal education requirements, and was then known by the said COLONEL MICHAEL D. MURPHY to be so false.

Charge IV: Violation of the UCMJ, Article 92

Specification 1: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., who knew or should have known of his duties at or near Washington D.C., from about 31 May 2002 to about 30 January 2005, on divers occasions, was derelict in the performance of those duties in that he willfully failed to refrain from using his Blanket Travel Orders to engage in unofficial travel, as it was his duty to do.

Specification 2: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., did, within the United States, from about 31 May 2002 to about 30 November 2006, fail to obey a lawful general regulation, to wit: paragraph 2.1, Air Force Instruction 51-103, dated 1 March 1996, superseded by Air Force Instruction 51-103, dated 7 December 2004, by wrongfully failing to maintain compliance with the licensing requirements of a Federal court or the highest court of a U.S. state, territory or the District of Columbia such that he would then be currently eligible to engage in the active practice of law.

Specification 3: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., did, within the United States, from about 31 May 2002 to about 30 November 2006, fail to obey a lawful general regulation, to wit: paragraph 2.2, Air Force Instruction 51-103, dated 1 March 1996, superseded by Air Force Instruction 51-103, dated 7 December 2004, by wrongfully failing to notify Headquarters United States Air Force Professional Development Division of the termination of his license to practice law in the state of Louisiana.

Specification 4: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., did, within the United States, from about 31 May 2002 to about 30 November 2006, fail to obey a lawful general regulation, to wit: paragraph 2.2, Air Force Instruction 51-103, dated 1 March 1996, superseded by Air Force Instruction 51-103, dated 7 December 2004, by wrongfully failing to notify Headquarters United States Air Force Professional Development Division of the termination of his license to practice law in the state of Texas.

Specification 5: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., did, within the United States, from about 31 May 2002 to about 30 November 2006, fail to obey a lawful general regulation, to wit: paragraph 2.2, Air Force Instruction 51-103, dated 1 March 1996, superseded by Air Force Instruction 51-103, dated 7 December 2004, by wrongfully failing to notify Headquarters United States Air Force Professional Development Division of the termination of his license to practice law in the United States Fifth Federal Circuit.

Specification 6: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., who knew or should have known of his duties within the United States, from about 31 May 2002 to about 30 November 2006, on divers occasions, was derelict in the performance of those duties in that he willfully failed to refrain from using his Government Travel Card for other than official travel related expenses, as it was his duty to do.

Charge V: Violation of the UCMJ, Article 86

Specification: In that COLONEL MICHAEL D. MURPHY, United States Air Force, Air Force Legal Operations Agency, Bolling Air Force Base, Washington D.C., did, on or about 5 August 2006, without authority, absent himself from his place of duty at which he was required to be, to wit: Headquarters Pacific Air Force Judge Advocate's office, located at 25 E. Street, Suite A-314, Hickam Air Force Base, Hawaii, and did remain so absent until on or about 13 August 2006.

The charges have been the subject of much speculation by the military justice community because it appeared the statute of limitations would make it impossible to charge him with any false statements he may have made when he entered the Air Force. Specification 1 of Charge I is intriguing -- competing for promotion to brigadier general when he knew he was not qualified for the job. Some JAG colonel, perhaps now retired, would have been promoted to brigadier general had not Colonel Murphy competed for the job.

Also interesting is specification 2 of Charge III. It alleges that he made a false official statement to Major General Deptula, one of the architects of the air campaign during the 1991 Gulf War, that by giving him permission to teach an advocacy course at LSU, Col Murphy would be able to keep current on his continuing legal education requirements to maintain the bar membership he is now alleged not to have had.

Spook86 opines that Col Murphy's "best defense may be an indictment of past Air Force procedures of certifying the professional credentials of its legal officers." I think that would be very difficult to pull off. If Col Murphy were to request officer members on the court, they would have to be senior colonels or generals. I just can't see them buying off on it. No matter what others think of them, I am sure the colonels and generals believe themselves to be men of honor. If they believe Col Murphy did what he is alleged to have done, they would be looking at an officer who hoped to join the generals' club after living a lie for more than 20 years.

Another interesting question is who will preside over the court-martial if there is one. In the past, the Air Force has been quick to farm courts-martial of JAG personnel to the Army. And I understand that at the time Col Murphy was removed from command, all the Air Force trial judges were in his chain of command.

Propensity Evidence Instructions

2007-06-05T19:39:00.000-04:00

On 31 May, the CAAF released United States v. Schroder, No. 06-0657/AF. One of the issues in the case concerns whether the military judge gave the proper instruction to the court members on the use of propensity evidence under Mil. R.Evid. 414. For some reason the military judge did not give the instruction in DA Pam 27-9, Military Judges' Benchbook ¶ 7-13-1 Note 3 (15 Sep 2002). Instead he gave a less specific instruction that had been reported in United States v. Dewrell, 55 M.J. 131, 138 (C.A.A.F. 2001), but not specifically endorsed by the CAAF.

In the type of opinion that seems all too common there recently -- 2 or 3 page summary dispositions with no meaningful discussion of the issues presented -- the AFCCA concluded that the military judge did not abuse his discretion by giving the Dewrell instruction. "Although it is advisable to give Benchbook instructions whenever possible, we hold that the military judge did not abuse his discretion in giving the instruction at issue in this case." United States v. Schroder, ACM 35855 (A.F. Ct. Crim. App. Mar. 31, 2006) (unpublished).

In a unanimous opinion the CAAF found error in the instruction, but no prejudice. The Court wants judges to give the instructions in the the Benchbook. The Benchbook has two instructions relevant to propensity evidence. The first instruction covers other acts evidence of sexual assault or child molestation, and advises the members they can use such evidence "for its tendency, if any, to show the accused's propensity to engage in (sexual assault) (child molestation)." Benchbook ¶ 7-13-1, Note 3 at 870. The second instruction, is to be used only in “circumstances where evidence relating to one charged sexual assault or child molestation offense is relevant to another charged sexual assault or child molestation offense.” Benchbook ¶ 7-13-1, Note 4 at 871.1. That was the case in Schroder -- he was charged with offenses against two different girls. The instruction states that “Each offense must stand on its own and proof of one offense carries no inference that the accused is guilty of any other offense.” The Court’s opinion incorrectly indicates that the Benchbook “suggests that where an instruction on propensity evidence is given, the members should also be instructed that” the proof of one (sexual assault) (act of child molestation) creates no inference that the accused is guilty of any other (sexual assault) (act of child molestation). Slip op. at 14.

Not only is it inappropriate to give that instruction in every propensity case, but the second instruction is an incorrect statement of the law. It’s assertion that proof of one offense carries no inference that the accused is guilty of any other offense is contrary to the intent of Mil. R. Evid. 413 and 414 and confuses the issue. If the members find the accused guilty of one offense of child molestation, they can consider it for his propensity to commit other offenses of child molestation. The court can’t convict on the propensity evidence alone, but to suggest that the members can’t draw an inference that the accused is a child molester and has propensities to commit child molestation offenses, including the offense at hand, is incorrect. Otherwise, Mil. R. Evid. 413 and 414 make no sense.

Without approving it, the opinion also cites a formulation of a propensity evidence instruction that was approved by the 10th Circuit in United States v. McHorse, 179 F.3d 889, 903 (10th Cir. 1999). That instruction tells jurors the “defendant’s commission of another offense or offenses of child molestation is admissible and may be considered for its bearing on any matter to which it is relevant.” That certainly doesn’t provide much guidance to jurors or court members. Legally relevant? Relevant to a layman?

Judges should just give the instruction in Note 3 from the Benchbook. I would ditch the following two sentences in the instruction at Note 4 and only give the instruction when there are at least two specifications alleging sexual assault of child molestation:

Each offense must stand on its own and proof of one offense carries no inference that the accused is guilty of any other offense. In other words, proof of one (sexual assault) (act of child molestation) creates no inference that the accused is guilty of any other (sexual assault) (act of child molestation).

Military Extraterritorial Jurisdiction Act

2007-06-04T19:23:00.000-04:00

The Military Extraterritorial Jurisdiction Act of 2000 (18 U.S.C. § 3261(a)) provides that “[w]hoever engages in conduct outside the United States that would constitute an offense punishable by imprisonment for more than 1 year if the conduct had been engaged in within the special maritime and territorial jurisdiction of the United States—(1) while employed by or accompanying the Armed Forces outside the United States; or (2) while a member of the Armed Forces subject to chapter 47 title 10 (the Uniform Code of Military Justice), shall be punished as provided for that offense.”

In January 2007, two circuit courts of appeal released opinions in criminal cases brought under the act. On 31 December 2004, at Talil Air Base, Iraq, Luis Oscar Maldonado, entered the room of a female Army National Guard soldier who was sleeping. He groped her breast, kissed her, straddled her, put his hand in her underwear and pinned her to the bed. The victim struggled with him, yelled, and was able to strike the wall with her hand. Fellow soldiers in the next room heard the commotion and came to her aid. They were able to identify Maldonado who had fled. Maldonado was convicted, in the District Court of the Southern District of Georgia, of abusive sexual contact under 18 U.S.C. §§ 2244(a)(2), 3261(a)(1). It is not clear from the appellate opinion, but I take it the accused was “employed by . . . the Armed Forces.” The court sentenced him to confinement for 3 years -- the maximum under the statute. The 11th Circuit affirmed, concluding his conviction and sentence were legally sufficienct. United States v. Maldonado, No. 06-12232, 2007 U.S. App. LEXIS 2129 (11th Cir. Jan. 31, 2007) (unpublished).

During a domestic dispute on Incirlik Air Base, Turkey, LaTasha Arnt fatally stabbed her husband, a military member of the security forces. She was charged with murder under the act. At her first trial, the jury deadlocked. At her second trial, she was convicted of the lesser-included offense of voluntary manslaughter. She was sentenced to 8 years in prison and order to pay restitution to the victim’s family. On appeal, the 9th Circuit concluded the indictment was legally sufficient, as was the evidence she was a person accompanying the force outside the United States. But the court reversed, holding that the judge erred by failing to instruct on involuntary manslaughter. United States v. Arnt, 474 F.3d 1159 (9th Cir. 2007).

Charges Preferred?

2007-06-02T09:40:00.000-04:00

Citing an e-mail sent to members of the Air Force JAG Corps, a posting on Washington DC Craigslist reported that charges were preferred against Colonel Michael D. Murphy, the former commander of the Air Force Legal Operations Agency. According to the post, Colonel Murphy has been charged with being absent without leave; failure to obey an order/dereliction of duty; making a false official statement; larceny; and conduct unbecoming an officer and a gentleman.

In a 1 June posting, Air Force Times reports the commander of the Air Force District of Washington has ordered an Article 32 investigation of the charges.

CAAF Grant

2007-06-01T16:56:00.001-04:00

As earlier reported at CAAFlog, on 29 May, CAAF granted review of another case involving the spousal communication privilege -- United States v. Custis, No. 07-0188/AF. The Air Force Court of Criminal Appeals held that "the appellant's communications with his wife were not entitled to the spousal communication privilege of Mil. R. Evid. 504, because the communications were 'intended to perpetuate a fraud on the court or the criminal proceeding' and thus fell within a common-law exception to the privilege." United States v. Custis, ACM S30875 (A.F. Ct. Crim. App. 31 Oct. 2006). Although the decision mentions Mil. R. Evid. 504, it does not discuss it. Instead it relies on an earlier Air Force case -- United States v. Smith, 30 M.J. 1022 (A.F.C.M.R. 1990), aff'd on other grounds, 33 M.J. 114 (C.M.A. 1991) -- for the proposition that the crime-fraud exception applies in the military. But Smith did not attempt to reconcile its adoption of the crime-fraud exception with the fact that the crime-fraud exception is not one of the exceptions listed in Mil. R. Evid. 504. It seems the Air Force court should have attempted some discussion of the issue.

The Air Force court's bottom line was that "the evidence was sufficient, even absent any mention of the conversations between the appellant and his wife, for a reasonable trier of fact to conclude that they conspired to impede, and did impede, investigation of the appellant's DUI." But that is the test for legal sufficiency of the evidence when there is no error. If the AFCCA was assuming arguendo that there was error, they should have applied the harmless error test: For nonconstitutional errors, the government bears the burden of showing "that the error did not have a substantial influence on the findings." United States v. Clark, 62 M.J. 195, 200 (C.A.A.F. 2005).

This may wind up being an interesting case. Recently, in United States v. Taylor, 64 M.J. 416 (C.A.A.F. 2007), the CAAF held that adultery fit within the spousal communication exception for "proceedings in which one spouse is charged with a crime against the person . . . of the other spouse." Mil. R. Evid. 504(c)(2)(A). Judge Ryan dissented, arguing that the Court should strictly interpret the language of the Rule, and the "common and approved usage" of the term "crimes against the person" refers to crimes of violence. The majority specifically expressed its sympathy with Judge Ryan's concern for strictly interpreting the language of the Rule, but concluded that the history of the spousal communication privilege in military practice favored a broader meaning of crime against the other spouse. There doesn't appear to be any similar history in the President's definition of the spousal communications privilege that would suggest the common law crime-fraud exception applies in the military.

Additional Pretrial Confinement

2007-05-31T19:43:00.001-04:00

United States v. Adcock, No. 06-0714/AF (C.A.A.F. May 3, 2007)

No person, while being held for trial, may be subjected to punishment or penalty other than arrest or confinement upon the charges pending against him, nor shall the arrest or confinement imposed upon him be any more rigorous than the circumstances require to insure his presence . . . .

Article 13, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 813 (2000). "Article 13, UCMJ, prohibits two things: (1) the imposition of punishment prior to trial, and (2) conditions of arrest or pretrial confinement that are more rigorous than necessary to ensure the accused’s presence for trial." United States v. King, 61 M.J. 225, 227-28 (C.A.A.F. 2005).

Air Force Lieutenant Heidi Adcock received a pretrial restraint order restricting her to the confines of Travis Air Force Base. She violated the order and was subsequently ordered into pretrial confinement. Because Travis AFB did not have a confinement facility, Lt Adcock was confined in a local civilian confinement facility pursuant to a memorandum of agreement with the local sheriff. During her pretrial confinement, Lt Adcock was housed in two facilities. She was housed with other prisoners, including some who had been convicted but not sentence, was required to wear a jumpsuit whose color was based on security classification rather than whether she was a pretrial or post-trial inmate. During her pretrial confinement, Lt Adcock never protested the conditions of her confinement.

Lt Adcock pled guilty and was sentenced to a dismissal and confinement for 15 months. The military judge granted Lt Adcock confinement credit for the 157 days she spent in pretrial confinement. Lt Adcock asked the judge to grant her an additional 157 days credit because the conditions of her confinement violated the terms of Air Force Instruction 31-205. That instruction provides that (1) inmates in military or nonmilitary confinement institutitions are subject to that institution's rules; (2) the standards of confinement and treatment of inmates must meet or exceed what would be provided in DoD facilities; (3) pretrial confinees in civilian facilities be treated at least as well as they would in military facilities; (4) pretrial confinees are to be housed in separate cells, separated by sight from post trial inmates; and (5) pretrial detainees are to continue to wear the BDU (battle dress uniform).

The military judge found that the conditions of Lt Adcock's confiement violated the provisions of AFI 31-205, but declined to grant her additional credit. Lt Adcock did not appeal this finding. Nevertheless, the Air Force Court of Criminal Appeals raised it and specified the issue. In a 5-4 decision, the court sitting en banc, held the military judge did not abuse his discretion in not granting Lt Adcock additional pretrial confinement credit.

In a 3-2 decision, the CAAF held the military judge abused his discretion by not granting her 157 days of additional pretrial confinement credit. The majority opinion, authored by Judge Erdmann seems to rely on the following logic:

(1) In R.C.M. 304(f), the President prohibited pretrial restraint to be used as punishment, prisoners can't be required to wear the same uniforms as sentenced prisoners, and "[p]risoners shall be afforded facilities and treatment under regulations of the Secretary concerned."

(2) The Secretary of the Air Force promulgated mandatory rules in AFI 31-205 that were not followed in Lt Adcock's case.

(3) The Government is required to follow its own regulations.

(4) "The military judge may order additional credit for each day of pretrial confinement that involves an abuse of discretion or unusually harsh circumstances." R.C.M. 305(k). We are now creating a new rule -- the 1998 amendment to R.C.M. 305(k) established an additional basis for credit.

(5) The failure of Air Force confinement officials to follow their own regulations was an abuse of discretion.

(6) The military judge abused his discretion in not granting additional credit.

Judge Stucky, joined by Judge Ryan dissented. The dissent concedes that Air Force officials failed to follow their own regulation, but did not find that dispositive to Appellant's claims. Instead, it focuses on a more comprehensive analysis of R.C.M. 305 and the law of pretrial confinement. The reasoning is as follows:

(1) A violation of Article 13 requires a finding of intent to punish --the military judge correctly found there was no evidence of such an intent in this case. R.C.M. 304(f) and R.C.M. 305 are the President's implementation of Article 13, UCMJ.

(2) R.C.M. 305(k) provides the military judge with the discretion to grant additional confinement credit for abuses of discretion and unduly harsh circumstances of confinement.

(3) The phrase abuse of discretion must be read in conjunction with R.C.M. 305(j) which requires the military judge, on motion of the defense, to review the placement and retention of the accused in pretrial confinement for an abuse of discretion. If the military judge (or the appellate courts) conclude there was an abuse of discretion in any decision to place or retain the accused in pretrial confinement, the judge may grant additional pretrial confinement credit.

(4) If an accused wishes to contest the conditions of her confinement, it is under the unduly harsh circumstances prong of R.C.M. 305(k), not the abuse of discretion prong.

(5) The Secretary of the Air Force has means of enforcing his regulation other than granting additional confinement credit. If he wanted a pretrial detainee to be granted additional confinement credit for violations of his regulation, he would have said so.

Every military justice practitioner should read this case. It shows how differently judges can read the same rules and regulations. Some of my thoughts concerning this case:

(1) The Secretary of the Air Force certainly knows there are many Air Force bases without confinement facilities. He also knows, or should know, that no civilian confinement facility is going to follow military confinement rules or regulations. So what was he or his staff thinking when they signed off on this regulation. What was the attorney who signed off on this regulation thinking. It will be interesting to see if the Secretary of the Air Force does anything to revoke parts of the regulation or specifically state that it shall not be the basis for additional confinement credit under R.C.M. 305(k).

(2) After reading Article 13, R.C.M. 304(f), and R.C.M. 305, I am certain that by changing R.C.M. 305(k) to permit the military judge to grant additional pretrial confinement credit, the President did not intend to promulgate a new rule by which an accused would be granted additional confinement for any violation of a service regulation.

(3) From now until the President clarifies the rule -- which I have no doubt he will do (although such changes usually take 3 or more years to coordinate through DoD, DOJ, OMB, etc.) -- trial judges should expect to litigate claims that the service failed to follow its own regulation. You have to wonder how small the violation can be and still warrant invocation of the R.C.M. 305(k) remedy.

The New Article 120, UCMJ

2007-05-31T19:36:00.001-04:00

In the National Defense Authorization Act for Fiscal Year 2006, Congress enacted sweeping changes to Article 120, UCMJ. Pub. L. No. 109-163, sec. 552 (2006). The changes become effective 1 October 2007 and represent an attempt to consolidate into one statute most of the sexual offenses currently prosecuted under the UCMJ.

There are several interesting aspects to the new rules:

(1) The statute looks more like federal criminal statutes contained in Title 18 of the United States Code than of other offenses listed in the UCMJ -- the definitions are contained in the statute itself, not left for definition by the President.

(2) Consent is no longer an element of the offense of rape. "An expression of lack of consent through words or conduct means there is no consent. Lack of verbal or physical resistance or submission resulting from the accused's use of force, threat of force, or placing another person in fear does not constitute consent." Article 120(t)(14), UCMJ.

(3) Currently, if the child with whom the accused had sexual intercourse was at least 12 years old, it is an affirmative defense to the offense of carnal knowledge that the accused believed the person was at least 16 years of age. The new Article 120 extends the defense to aggravated sexual assault of a child, abusive sexual contact with a child, and indecent liberty with a child. Article 120(o)(2), UCMJ.

(4) Mistake of fact as to consent is an affirmative defense. Article 120(t)(15), UCMJ. "The accused has the burden of proving the affirmative defense by a preponderance of evidence." Article 120(t)(16), UCMJ.

(a) It is unclear whether the President will amend R.C.M. 701(b)(2) to require that the defense give notice of intent to raise mistake of fact as to consent, but I would bet he will.

(b) Article 120(t)(16) also states that: "After the defense meets this burden, the prosecution shall have the burden of proving beyond a reasonable doubt that the affirmative defense did not exist." This makes no sense. If the evidence does not raise the issue of mistake of fact as to consent, the military judge should instruct on the elements of the offense. If mistake of fact as to consent is raised, the judge should first instruct that on the elements of the offense and that the members must be convinced beyond a reasonable doubt of each and every element of the offense before they can convict. The judge should further instruct that if they find the accused guilty beyond a reasonable doubt, they should then consider whether the accused has proven by a preponderance of the evidence that he had an honest and reasonable mistake as to the consent of the victim. If they find he did have such a mistake of fact, then they must acquit.

Changes to the MCM

2007-05-31T19:35:00.001-04:00

The changes to the Manual for Courts-Martial promulgated by the President in Executive Order 13430 on 18 April 2007 went into effect 18 May 2007. Of course, nothing in the amendments shall be construed to make punishable any act done or omitted prior to the effective date that was not punishable when done or omitted.

The following is a summary of the major changes:

(1) R.C.M. 703, 804, 805, and 914A are amended to provide the opportunity for employing video teleconferencing in a wide variety of situations in a court-martial.

(2) Minor changes to paragraph 35, covering Article 111, UCMJ.

(3) A new paragraph 44a, covers the new Article 119a offense -- Death or injury to an unborn child.

(4) A new paragraph 45a covers the new Article 120a offense -- Stalking.
The official version of the Executive Order, 72 Fed. Reg. 20213 (23 April 2007), is posted at

http://a257.g.akamaitech.net/7/257/2422/01jan20071800/edocket.access.gpo.gov/2007/pdf/07-2027.pdf