http://coop.ca4.uscourts.gov/OAarchive/mp3/12-1065-20130517.mp3

A reader advises that the recently-signed Executive Order 13643 (discussed here, here, and here) is now available in its entirety: link to PDF.

Notably, the only changes to the MCM are the revisions to the Military Rules of Evidence to conform with the similar changes to the Federal Rules of Evidence (provided in their entirety here) and the establishment of the maximum punishments for Article 120 (2012) (provided here). The other changes proposed by the JSC last October (discussed here) go back to the drawing board.

Last month the Coast Guard Court of Criminal Appeals issued a published opinion in United States v. Shannon, __ M.J. __, No. 1358 (C.G.C.C.A. April 12, 2013). The case involves two issues arising from pleas of guilty by the Appellant (an E-6), before a general court-martial composed of a military judge alone, to one specification of maltreatment, two specifications of assault, and one specification of wrongfully providing alcoholic beverages to a minor, in violation of Articles 93, 128, and 134, for which the Appellant was sentenced to reduction to E-3 and a bad-conduct discharge.

Judge Norris writes for a unanimous three-judge panel, rejecting the issues raised by the Appellant and affirming the findings and sentence. The issues are:

I. [Whether t]he Military Judge abused his discretion by not dismissing the charges against Appellant after finding unlawful command influence.

II. [Whether t]he Military Judge abused his discretion by not dismissing Appellant’s case with prejudice after granting Appellant’s motion to dismiss for violations of RCM 707(a).

The opinion makes pretty quick work of the first issue, which involves curative measures adopted by the trial judge to address some pretty egregious unlawful command influence by the Appellant’s officer-in-charge:

In this case, the incident that precipitated the charges against Appellant was his alleged rape of the girlfriend of one of his shipmates. Upon this accusation being made, Appellant was removed from his command, USCGC GREENBRIER, and was sent to another command. Over the next 13 months, the Officer-in-Charge (OIC) of GREENBRIER repeatedly referred to Appellant as “the rapist” in all manner of settings, including in front of the entire crew. This behavior was the basis for a motion to dismiss for unlawful command influence (UCI), which was litigated at an Article 39(a), UCMJ, session on 16 November 2010.

Shannon, slip op. at 2. The trial judge applied significant remedies short of dismissal, and Judge Norris finds them adequate, noting that they are “strikingly similar” to the remedies crafted by the trial judge and found adequate in United States v. Douglas, 68 M.J. 349, 354 (C.A.A.F. 2010). Slip op. at 4. Further, unlike Douglas (where CAAF found insufficient evidence in the record that the remedies were actually applied), Judge Norris finds that, “there is affirmative evidence in the record in the instant case that the remedies were carried out.” Slip op. at 6.

The second issue addresses the fact that this case was before two separate courts-martial, with the first court ending with a pretrial dismissal, without prejudice, due to a violation of the speedy trial provisions of Rule for Courts-Martial 707. The Appellant argues that the dismissal should have been with prejudice (meaning he could not be charged again). But:

From 27 May 2010, when the first judge dismissed the first charges without prejudice on R.C.M. 707 grounds, to 9 January 2012, when Appellant, on appeal, raised the issue of the character of dismissal of the first charges, the record is entirely devoid of evidence that Appellant took any action to challenge the nature of the dismissal.

Slip op. at 9. Like voting, speedy trial objections have to happen early and often, and Judge Norris notes that the Appellant did not raise the RCM 707 issue in the second (and ultimately final and reviewable) court-martial. “Appellant underwent two separate trials, and the appeals process for his second trial is not a proper forum in which to appeal rulings made in the first trial.” Slip op. at 9.

But Judge Norris also engages in a discussion about the Appellant’s claim that he entered a conditional plea, “which preserved any speedy trial issue, including the speedy trial issue under R.C.M. 707 from the first trial.” Slip op. at 11. Judge Norris reasons:

The military judge’s acknowledgment that the speedy trial issue was not waived related only to Appellant’s Constitutional speedy trial motion in the second trial, and did not encompass his R.C.M. 707 speedy trial motion from the first trial. This conclusion is warranted because (1) the only speedy trial motion that had been litigated before this judge was the Constitutional motion; the R.C.M. 707 speedy trial issue from the first trial had never been the subject of any substantive discussion at the second trial; (2) the judge’s initial advisement to Appellant was that, by his plea, he would waive five enumerated motions, including the Constitutional speedy trial motion from the second trial; the R.C.M. 707 speedy trial motion was not one of the enumerated motions; and (3) following the recess, when the military judge revised his advice to Appellant that he would be able to appeal the speedy trial issue, notwithstanding his guilty plea, his advisement was singular, i.e. his plea did not waive “the” speedy trial “motion.”

Unlike a denial of due process such as is envisioned by a Constitutional speedy trial motion citing Barker v. Wingo, a speedy trial issue under R.C.M. 707 can be waived. Hence Appellant’s guilty plea waived any issue regarding the character of the dismissal of the first charges. Even if Appellant’s plea could be considered a conditional plea, it is clear that preservation of the right to appeal the character of the dismissal of the first charges was not a condition upon which Appellant’s plea was made. Thus, on the general principle that a guilty plea waives any defects, as well as by reference to R.C.M. 707(e), Appellant waived his right to appeal that issue by his guilty plea.

Slip op. at 11 (citations omitted). Ultimately, by failing to litigate at the second court-martial the character of the dismissal from the first court-martial, the Appellant waived this issue.

There isn’t a whole lot of appellate litigation in the Coast Guard, so I think the odds are good that there will be a petition for review by CAAF. I don’t know enough about this case to say if such a petition is a good idea from a legal perspective, but from a practical perspective I have to recommend caution when appealing a ruling from someone named “Judge Norris” due to the potential for roundhouse kicks.

Here is a Marine Corps Times story that has been “making the rounds” as Zee said.  A Marine Corps O-4 judge advocate has apparently filed an IG complaint about the Commandant’s handling of the scout sniper cases in Afghanistan stemming from videos showing the Mariens urinating on corpses.  The report states:

The top Marine general and four of his legal advisers are implicated in a complaint to the Defense Department Inspector General charging they inappropriately inserted themselves into the prosecution of cases stemming from the infamous video showing scout snipers urinating on dead insurgents in Afghanistan.

The complaint, filed by Marine Maj. James Weirick, an attorney assigned to Marine Corps Combat Development Command in Quantico, Va., alleges Commandant Gen. Jim Amos, or others acting on his behalf, deliberately sought to manipulate the legal process, effectively stacking the deck against the scout snipers in the video.

Weirick’s complaint, a copy of which was obtained by Marine Corps Times, also alleges Amos showed preferential treatment to ensure the promotion of then-Maj. James B. Conway, the son of Amos’ predecessor as commandant, retired Gen. James T. Conway. Conway was executive officer of the scout snipers’ unit, 3rd Battalion, 2nd Marines.

The Commandnat discussed the videos in his recent the Heritage briefs, which are now famous for their discussion of sexual assault issues.  See our prior coverage here.

In a recent unpublished opinion in United States v. Rapp, No. 201200303, a three-judge panel of the Navy-Marine Corps Court of Criminal Appeals reminds us that words mean things.

Seaman Apprentice Rapp was convicted, pursuant to his pleas by a military judge alone as a general court-martial, of one specification of receiving child pornography, one specification of possessing four or more images of child pornography, and one specification of attempting to receive child pornography, all in violation of Article 134. He was sentenced to confinement for 5 years (later reassessed to 54 months), total forfeitures, reduction to E-1, a $16,000 fine, and a dishonorable discharge. Pursuant to a pretrial agreement, all confinement in excess of 12 months was suspended.

Before the CCA, the appellant claims, inter alia, that the military judge erred by accepting his guilty plea to receiving child pornography and possessing four or more images of child pornography, because some of the 16 images were not child pornography. The CCA agrees.

Judge Joyce writes for a unanimous panel. Her opinion begins with a discussion of how the Government incorporated the definition of child pornography provided by 18 U.S.C. § 2256(8) into the charge. Judge Joyce notes that this definition is pretty specific, including requiring the visual depiction to involve “sexually explicit conduct,” which means:

actual or simulated (i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; (ii) bestiality; (iii) masturbation; (iv) sadistic or masochistic abuse; or (v)lascivious exhibition of the genitals or pubic area of any person. . .

Slip op. at 5. “[T]he application of ‘lascivious exhibition’ is pivotal to this case,” and Judge Joyce carefully reviews caselaw discussing what makes an exhibition “lascivious” in this context. Slip op. at 6-7. Notably, of the 16 images at issue (and attached to the record as a prosecution exhibit), “only one image included in [the exhibit] depicts a sexual act.” Slip op. at 6. Also, the Appellant didn’t review the images in advance of his plea, which occurred 18 months after his computer was seized, leading to a pretty non-specific plea inquiry. After reviewing the transcript of the plea inquiry, Judge Joyce concludes:

[T]he military judge was required to ensure compliance with the legal statutory definition of child pornography. Mere conclusions of law recited by the accused are insufficient to establish a factual basis for a guilty plea. As part of establishing the facts to a child pornography charge such as this, the appellant must describe images that contained minors engaged in sexually explicit conduct, in this case the relevant conduct being the lascivious exhibition of the genitals and pubic area of any person. An insufficient inquiry took place, and the appellant did not satisfy the elements of each and every offense.

Slip op. at 11 (citations and marks omitted). She also finds that the Appellant was not provident to an attempt:

During the providence inquiry, the appellant repeatedly told the military judge, “I tried to get child pornography” and “I was attempting to receive child pornography.” Record at 71, 73. Again, these statements are nothing more than legal conclusions, and are compromised by the appellant’s apparent misunderstanding of what constitutes child pornography.

Slip op. at 12-13. But then Judge Joyce goes one step further, noting that of the 16 issues at issue in this case, six of them “do not depict sexually explicit conduct, and, in fact do not depict any genitals or pubic areas, much less a ‘lascivious exhibition.’” Slip op at 13-14. She finds that these images are constitutionally protected, and raising concerns about other images, including distinguishing some as “child erotica” vice “child pornography,” and wondering about the intent of the photographers for others.

Finally, the Judge Joyce cites CAAF’s opinion last term in United States v. Barberi, 71 M.J. 127 (C.A.A.F. 2012): “If a factfinder is presented with alternative theories of guilt and one or more of those theories is later found to be unconstitutional, any resulting conviction must be set aside when it is unclear which theory the factfinder relied on in reaching a decision.” Slip op. at 15. And so the findings are set-aside and a rehearing authorized.

Re-reading my opinion analysis in Barberi, I see this penultimate paragraph:

Moreover, Barberi creates an even bigger unanswered question: How should the government charge a child pornography case involving multiple images? If the government uses a single specification to allege wrongful possession of multiple images, and just one of those images doesn’t meet the definition of child pornography, must the entire conviction be set-aside? If the answer to this question is “yes,” then must the government charge each image as a separate specification? What about multiplicity and unreasonable multiplication of charges? What about the majority’s prejudice analysis that turns on the “contribut[ion] to the conviction” of the “protected” images; will the admission of any “protected” image at trial, even for a separate specification, create reversible error as to all?

Barberi was a contested case (where the key issue was general verdicts) and this case was a guilty plea (where the key issue is the definition of child pornography), but the NMCCA’s treatment of this case makes me pretty confident that a constitutional deficiency affecting only a few (maybe as few as just one) of the images will be fatal to a child pornography conviction. Accordingly, the Government is going to have to be much more careful with its charging decisions going forward. Do I get to say I predicted this?

CAAF today granted review of these two issues:

I.   WHETHER SPECIFICATION 3 OF CHARGE I IS VOID FOR VAGUENESS BECAUSE THE APPELLANT WAS NOT GIVEN FAIR NOTICE THAT THE CHARGED CONDUCT OF POSSESSING “SEXUALLY SUGGESTIVE” MATERIAL OF MINORS AS “SEXUAL OBJECTS” WAS FORBIDDEN AND SUBJECT TO CRIMINAL ACTION.

II.  WHETHER SPECIFICATION 3 OF CHARGE I IS LEGALLY INSUFFICIENT WHEN THE GOVERNMENT FAILED TO PROVE THAT THE POSSESSION OF CONSTITUTIONALLY PROTECTED IMAGES OF MINORS AS “SEXUAL OBJECTS” AND IN “SEXUALLY SUGGESTIVE” POSES HAD A DIRECT AND PALPABLE EFFECT ON THE MILITARY MISSION AND THEREFORE WAS ACTUALLY SERVICE DISCREDITING AS REQUIRED BY UNITED STATES v. WILCOX, 66 M.J. 442 (C.A.A.F. 2008).

 United States v. Warner, __ M.J. __, No. 13-0435/AR (C.A.A.F. May 20, 2012). 

CAAF decided United States v. Solomon, No. 13-0025/MC, (opinion) (CAAFlog case page), on May 8, 2013, finding that the military judge erred in admitting evidence of prior sexual misconduct by the accused (for which he was tried in a separate general court-martial and acquitted) under Military Rule of Evidence 413, reversing the NMCCA, and setting aside the findings of guilty to the sexual assault charge.

Judge Stucky writes for a unanimous court.

The Appellant was convicted, by a general court-martial composed of members with enlisted representation, of numerous offenses, some in accordance with and some contrary to his pleas. Relevant to this appeal, the Appellant was convicted of abusive sexual contact in violation of Article 120, based on an encounter with his roommate, Lance Corporal (LCpl) [K]. LCpl K testified that on the morning of December 17, 2010, after falling asleep clothed in his barracks room bed, he woke up to find his pants and boxer shorts down by his ankles and Appellant lying in between his knees. LCpl K testified that Appellant rubbed his genitals against LCpl K’s, then jumped into his own bed where LCpl K confronted him.

Despite this compelling evidence of guilt, the prosecution also presented evidence of prior acts of sexual misconduct, pursuant to M.R.E. 413 which provides that:

In a court-martial in which the accused is charged with an offense of sexual assault, evidence of the accused’s commission of one or more offenses of sexual assault is admissible and may be considered for its bearing on any matter to which it is relevant.

M.R.E. 413(a). Prior to this case, the Appellant was tried by a separate court-martial for alleged sexual assaults of two other Marines, LCpls [B] and [R]. He was acquitted of those assaults, and evidence at that trial showed that he had an alibi: The Appellant was arrested for driving under the influence at a location 45 minutes away from the place where he allegedly assaulted LCpls B and R at the same time that LCpls B and R claimed he assaulted them. Nevertheless, the military judge allowed the Government to present the testimony of LCpls B and R at the subject court-martial, where they testified about the incident involving them (again, of which the Appellant was acquitted), finding their testimony admissible under both M.R.E. 404(b) and M.R.E. 413. LCpls B and R  testified, LCpl K testified, the Trial Counsel then made potentially improper argument in the findings phase of the court-martial, and the Appellant was convicted of sexual offenses involving LCpl K.

The NMCCA reviewed the case, including the MRE 413 and the improper argument issues, and affirmed the findings of guilty of the sexual offense specifications.  CAAF then granted review of two issues:

I. In a case involving sexual misconduct committed against a male victim, the military judge admitted extensive evidence under M.R.E. 404(b) and M.R.E. 413 that related to appellant’s previous acquittal for sexual misconduct committed against two females, despite alibi evidence that contradicted his involvement in the sexual misconduct with them. Did the military judge abuse his discretion in admitting the prior sexual misconduct evidence?

II. During the trial counsel’s closing and rebuttal argument, he expressed personal opinions on the evidence, vouched for the veracity of the government witnesses, ridiculed the defense’s case theory, argued facts not in evidence, and claimed that the defense cross-examinations were disingenuous. Did his improper conduct constitute prosecutorial misconduct and did it materially prejudice appellant’s substantial rights?

The court answers the first question in the affirmative, and does not reach the second question.

Judge Stucky’s discussion begins by noting that prior to trial, the Appellant moved to suppress evidence of prior incidents of sexual misconduct under MRE 413 and MRE 404(b). The military judge held a hearing and granted the Appellant’s suppression motion for two other incidents, but denied it for a third (the incident involving LCpls B and R). Reviewing this ruling and the CCA’s decision affirming it, Judge Stucky observes that:

Noting that the military judge did not explicitly reconcile Appellant’s alibi evidence with LCpl B’s and LCpl R’s testimony, the CCA determined that “[i]t is implicit in his findings of fact that the military judge concluded that the appellant entered the female Marines’ room earlier than they recall and was apprehended subsequently,” and the CCA “decline[d] to disturb the factual findings of the judge on the grounds that they are unsupported by the record or clearly erroneous.”

Solomon, slip op. at 7 (quoting Solomon, 2012 CCA LEXIS 291, at *12–*13, 2012 WL 3106790, at *4). Appellate courts review “a military judge’s decision to admit evidence for an abuse of discretion.” Slip op. at 7. Moreover, “The abuse of discretion standard is a strict one, calling for more than a mere difference of opinion. The challenged action must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous.” Slip op. at 7-8. And even more importantly,

M.R.E. 413(a) provides that in a court-martial in which the accused is charged with an offense of sexual assault, evidence of the accused’s commission of one or more offenses of sexual assault is admissible and may be considered for its bearing on any matter to which it is relevant. This court has noted that inherent in M.R.E. 413 is a general presumption in favor of admission.

Slip op. at 8 (marks and citation omitted) (emphasis added). Buried in all this deference and permissiveness are three “threshold requirements for admitting evidence of similar offenses in sexual assault cases under M.R.E. 413: (1) the accused must be charged with an offense of sexual assault; (2) the proffered evidence must be evidence of the accused’s commission of another offense of sexual assault; and (3) the evidence must be relevant under M.R.E. 401 and M.R.E. 402.” Slip op. at 8 (citation omitted). And then the military judge must also balance the probative value of the evidence against the danger of unfair prejudice under M.R.E. 403. But, despite these thresholds and balances, the permissiveness and presumptions abound, because “when a military judge articulates his properly conducted M.R.E. 403 balancing test on the record, the decision will not be overturned absent a clear abuse of discretion.” Slip op. at 9.

So, with a strict standard of review, a presumption in favor of admission, and articulated findings on the record, how does CAAF unanimously reverse the trial judge’s decision admitting the evidence of the Appellant’s prior misconduct involving LCpls B and R?

Read more »

This week at SCOTUS: The Supreme Court denied the petition in Ali v. United States, No. 12-805. Behenna is scheduled for conference on May 30, 2013. I’m not aware of any other military justice developments at the Supreme Court. There is just one military justice case pending SCOTUS action:

• Behenna v. United States, No. 12-802 (pending conference on May 30)

This week at CAAF: The next scheduled oral argument at CAAF is on June 11, 2013.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Wednesday, May 22, 2013:

United States v. Marino, No. 20120107

Issue: [Whether t]he charge is invalid under the preemption doctrine of the Uniform Code of Military Justice because it prohibits the charging of General Article 134 when the appropriate charge is the enumerated offense of article 92.

Note: A friend informs me that this case involves a soldier in Germany who pleaded guilty to two specifications of wrongful possession of child pornography in violation of Article 134 (prior to the President’s enumeration of that offense). But there is also a local general order prohibiting possession of such materials. The Appellant argues that the existence of the order preempts the application of Art. 134 to his misconduct.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

This week at the CGCCA: The Coast Guard Trial Docket shows no pending cases at the Coast Guard CCA.

This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in one case this week, on Wednesday, May 22, 2013:

United States v. Paris

Case Summary:
A panel of members with enlisted representation, sitting as a special court-martial, convicted the appellant, contrary to his plea, of attempting to access, with the intent to view, child pornography in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. The members sentenced the appellant to reduction to the pay grade E-1 and a bad-conduct discharge. The convening authority approved the sentence as adjudged, and except for the punitive discharge, ordered it executed.

Issues:
I. Whether the appellant’s entry of terms into a search engine was a “substantial step” toward the commission of the offense.
II. Whether the evidence proved beyond a reasonable doubt that the appellant had the specific intent to access websites containing child pornography.

Beyond all the gnashing of teeth and tearing of clothes over the various proposals to dismantle the Uniform Code of Military Justice in an effort to eliminate “sexual assault” in the military, there are some who envision a much more terrifying future.

Last month I noted (here and here) the Supreme Court’s consideration of United States v. Kebodeaux, No. 12-418. SCOTUSblog has a great writeup of the case in its argument preview here. In short, Kebodeaux was convicted by a special court-martial in 1999 of carnal knowledge, arising from a “consensual” sexual relationship with a 15 year old. He moved to Texas and registered as a sex offender, but failed to update his registration when he moved within Texas in 2007. He was arrested in 2008, indicted for violating the federal Sex Offender Registration and Notification Act (SORNA) (enacted in 2006), and convicted.

The district court denied a constitutional challenge to the application of the statute to Kebodeaux, and a panel of the Fifth Circuit affirmed. But then the Fifth Circuit reversed in a sharply-divided en banc opinion, finding that because Kebodeaux was unconditionally released after he served the sentence of the court-martial, the federal government lacked the power to “reassert” authority over him under SORNA when he only moved within a state. The Government then petitioned SCOTUS, which granted review.

So the federal government wants to preserve the constitutionality of SORNA as applied to pre-SORNA offenses. A fairly narrow question, right? Tell me if you think so after you read the following segment from the transcript of the oral argument before SCOTUS on Wednesday, April 17, 2013 (audio here).

Note: If you’re drinking coffee, put down the cup before you read further.

MR. DREEBEN (Deputy Solicitor General): Justice Alito, I think the most helpful way to do that would be for me to progress through a series of examples that illustrate how protecting the public against a Federal sex offender is a legitimate aim under the Necessary and Proper Clause to implement the underlying constitutional authority.

JUSTICE ALITO: Yes.

MR. DREEBEN: So start with a sex offender who commits a sex offense in the military, is tried, court-martialed and sentenced. Subject to cruel and unusual punishment limitations, due process limitations, et cetera, that individual can be incarcerated, placed on supervised release potentially up to life. A condition of supervised release, well-recognized and now mandated by Federal law, is that that individual register as a sex offender. And the reason that that is tied to Federal law is that when an individual violates Federal law it is a legitimate purpose of Congress to protect the public against recidivism by that individual. So that’s the criminal example that I believe is undisputed.

Now, suppose that the Federal Government didn’t actually get the sex offender while he was in the military. It missed the crime, but later information comes to light still within the statute of limitations that shows that while this person was in the military they committed a sex offense. This court in United States ex rel. Toth v. Quarles made clear that that individual can be tried in an Article III court for his criminal violation even though he’s out of the military. It’s enforcing the rules that were impressed upon him at the time while he was in the military.

Now let me give a civil example and then I will bring it right back to this case. Suppose that Congress concludes that sex offenses in the military are a very serious problem and that there are a lot of people who have escaped prosecution because of lax interest in pursuing those crimes. And after a period of years, it sets up a board of inquiry and it says this board of inquiry is going to look into sex offenses that were committed at the time that people were in the military, even if they’re out of the military, and we’re going to subpoena people to testify, and if individuals are determined in a civil proceeding to have committed sex offenses they may have their military records revised, they may lose military benefits, and they may have other civil sanctions imposed upon them.

JUSTICE ALITO: When you say in a civil proceeding, you mean?

MR. DREEBEN: Yes, noncriminal. Noncriminal.

JUSTICE SCALIA: So it’s just by a preponderance of the evidence we think this guy probably, you know, 51/49, committed a sex crime.

MR. DREEBEN: Not going to be a criminal punishment that’s imposed at the end of the day.

JUSTICE SCALIA: So just — just more -more likely than not is the test.

MR. DREEBEN: That’s an acceptable level of proof for the civil law.

And if Congress can do that in order to protect the integrity of the military and to promote confidence in the military, then it’s a very small step, if any step at all, to SORNA.

For those with skeletons in their closets, now might be a good time to take your framed honorable discharge certificate off the wall…

WaPo article here.  And here’s a link, courtesy of Doug Rawald, to the text of Senator Gillibrand’s bipartisan, bicameral Military Justice Improvement Act of 2013, which would remove prosecutorial discretion from commanders for UCMJ offenses punishable by more than a year with the exception of some, though not all, purely military offenses, and give that authority to a military lawyer instead.

BLUF

Ms. Burke’s arguments in Cioca gained no traction, because in her own words her case was “based on rocky legal terrain,” which I thought the memorable phrase of the day.  Prediction is denial.  Nothing from the argument appeared to leave or create a suitable gem that could regain traction for a grant of a writ of certiorari.  So this litigation is about to be over.

The court: Judges Agee (M/Bush2), Niemeyer (M/Bush1), and Thacker (F/Obama).  They were a hot bench.  Although Judge Thacker did not ask any questions she was clearly attentive.

As best we could tell Ms. Burke was the only person involved in the litigation who was there.  We had thought there would be a number of supporters and media.

Just as Ms. Burke began the argument with her first emotional pitch of the day Judge Agee asked about the Coast Guard litigants.  Ms. Burke argued, “it was a complex question, that there had been a declaration of war, and that her clients had told her they were subject to the UCMJ,” or words to that effect.  However, she conceded they were likely not proper parties.  If the court does as predicted and denies the appeal, the answer to the question becomes irrelevant.  Ms. Burke still does not get it that a declaration of war and an authorization to use military force comes from Congress, but that an authorization to use military force is not a declaration of war.  Also, it is true that active duty members of the Coast Guard are subject to the UCMJ.  But that doesn’t mean they are in the Navy and thus the Department of Defense.

The judges were focused about separation of powers and the abstention doctrine.  That was the bulk of the questions.  Much reference was made to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), United States v. Stanley, 483 U.S. 669 (1987), and Chappell v. Wallace, 462 U.S. 296 (1983).  But at times Ms. Burke herself wandered into arguing matters that were APA or  injunctive relief related and other type claims not before the court.  The DOJ attorney took less than five minutes to make two points:  Ms. Burke had conceded everything, leaving some minor missed deadlines within DoD and some ignoring of Congressional directives as fault for the cause of action, and the APA related irrelevant arguments.  As counter-concessionary argument, Ms. Burke told the court DOJ had conceded everything she was raising, “at page 20 of their brief.”

Ms. Burke argued the case was unique (interspersed with emotional appeal) and in particular argued that the alleged offenses were not incident to service.  She also argued that money damages was a least intrusive remedy compared to injunctive relief.  To which Judge Niemeyer offered the idea that a Soldier hitting another in the jaw commits a crime, but the Secretary of Defense is not liable for that in his personal capacity for money damages.  Essentially Judge Niemeyer pointed out that there are processes in place to discipline and take care of these issues.  (There was no discussion or retort that current events show the in-house remedies ineffective and proof of the claim.)  Again the point was made that the litigants were asking for money not injunctive relief.  Judge Niemeyer acknowledged in some detail the sexual assault problem, which is where much of the discussion about the current fiascos came up.  (My Liege and I disagree a little on this.  His position, I think, is that the current matters are not relevant or evidence in the Cioca case.  My position is that while not formally announced, could not the court take appellate judicial notice of the ongoing crisis.)

The bulk of the questions highlighted concern that the courts were being asked to manage the day to day activity of the military.  As a basic principle courts don’t manage the day to day business of the military.  Questions emphasized that Congress is taking action, the military is taking action, and the President is taking action.  But, emphasized the questioners, Congress has not directed any judicial remedy in the federal courts relevant to the case before them.  The “go talk to Congress,” meme was clear if not directly said.  The judges’ views follow quite well this line from Stanley, “the fact that congressionally uninvited intrusion into military affairs by the judiciary is inappropriate.”  Stanley, 483 U.S. at 683.  And reading a little further into Stanley, and presaging DOJ’s counsel.

Similarly irrelevant is the statement in Chappell, erroneously relied upon by Stanley and the lower courts, that we have “never held, nor do we now hold, that military personnel are barred from all redress in civilian courts for constitutional wrongs suffered in the course of military service.”  As the citations immediately following that statement suggest, it referred to redress designed to halt or prevent the constitutional violation rather than the award of money damages.  Id., (citations omitted).

Ms. Burke raised the point that abstention is a prudential doctrine.  Again she was faced with questions that the Supreme Court has narrowed any exceptions to the doctrine, rehearsed the aversion to running the military on a day to day basis, and firmly restated the absence of a specific statutory remedy.  Toward the end of her argument Ms. Burke acknowledged that even if the case proceeded there may be “causation” problems in proving the case.

During Ms. Burke’s rebuttal there was an odd (I’ll call it odd) interchange where Judge Agee quoted from Dean Erwin Chemerinsky, (now at UC-Irvine, ML).  The judge asked her that a person such as Chemerinsky likely to be on her side.  And then he read a quote in which Chemerinsky is purported to have said that no Bivens action can ever lie for such military related cases.  The import being that even Dean Chemerinsky would deny the appeal.  To which Ms. Burke testified that she had talked to the Dean and he agreed with her position.

I commented on my own reactions to seeing Invisible War last year.  I noted a comment made by Ms. Kearl, a AAUW legal person involved and helping with the litigation of Cioca v. Rumsfeld.  The tenor of her remarks was that they did not expect to win.  And, she basically said, “She (meaning the attorney) doesn’t intend to win.  This is done for the media attention.”  The media attention is there, the litigation is not.  However, the litigation has certainly contributed to the effort to persuade Congress to act, even if current events had not been at the fore — “See Congresswoman, the courts won’t help us, please create a remedy, change the law, or something, the courts are closed to us, unbar the door,” or words to that effect.

Judge Niemeyer, observed that the D.C. court had just dismissed the Klay, et. al. v. Panetta, et. al.  Here is a link to the memorandum opinion of Judge Amy Jackson dated 7 February 2013, dismissing that case.

Accordingly, the Court will grant defendants’ motion to dismiss because Supreme Court precedent requires the Court to abstain from inferring a Bivens remedy for plaintiffs under these circumstances and plaintiffs have not overcome defendants’ entitlement to qualified immunity.8

(n.8.  While plaintiffs offered to amend their complaint during oral argument, Tr. at 31–32, they have never filed a motion to amend attaching any amended complaint, much less one that could – after the several chances they have had already – cure the problems at the heart of this action).

JOC, Judge Agee did ask Ms. Burke why neither Panetta nor Hagel were being sued, no good answer.

We will link to the audio when available – probably Tuesday.

Affirmative.  There is more to do on a road-trip than 25 minutes at the Fourth, besides it was an awesome top down day.  :-)

Here’s a link to some of the posts about TIW and Cioca.

http://www.caaflog.com/?s=cioca

http://www.caaflog.com/?s=cioca+invisible+war

Greetings from Richmond, where Phil “My Liege” Cave and I are on a busman’s holiday to watch the Cioca v. Rumsfeld argument.

The argument lasted only 25 minutes, with DOJ using only five of its alloted 20 minutes.  I believe that Phil will provide a full report later, but the bottom line is that the plaintiffs/appellants’ arguments gained no traction before the Fourth Circuit.

The Department of the Navy (DoN) is revising its Rules of Professional Conduct and procedures for receiving, processing, and taking action on complaints of professional misconduct made against attorneys practicing under the supervision of the Judge Advocate General of the Navy (JAG). The revision to this part generally aligns with recent changes to the American Bar Association Model Rules of Professional Conduct. The revisions clarify when an attorney shall reveal confidential information and when such disclosure is discretionary, and allows for covered attorneys to make reasonable disclosures necessary to ensure compliance with the Rules of Professional Conduct. The revision contains administrative corrections throughout.

Read the proposed new rules and submit your comments at this regulations.gov link. Comments are due by July 1, 2013.

CAAF today granted review in another case dealing with Judge Palmer’s now-infamous remarks.  United States v. Myrick, __ M.J. __, No. 13-0444/MC (C.A.A.F. May 16, 2013).  And CAAF granted review of a Humphries-type issue in United States v. Valentin, __ M.J. __, No. 12-0617/MC (C.A.A.F. May 16, 2013).  In both cases, CAAF directed that no briefs be filed.

CAAF today granted review of this issue:

WHERE THE ARTICLE 134 CHILD PORNOGRAPHY SPECIFICATIONS OF WHICH APPELLANT WAS CONVICTED DID NOT ALLEGE THAT THE IMAGES DEPICTED ACTUAL MINORS AND WHERE THE MILITARY JUDGE ADVISED APPELLANT DURING THE PROVIDENCE INQUIRY THAT “THERE IS NO REQUIREMENT THAT THE IMAGES IN THIS CASE INCLUDE ACTUAL IMAGES OF MINORS,” IS THE MAXIMUM AUTHORIZED CONFINEMENT FOR EACH SPECIFICATION LIMITED TO FOUR MONTHS?

United States v. Finch, __ M.J. __, N0. 13-0353/AF (C.A.A.F. May 16, 2013).  AFCCA’s unpublished decision in the case is available here.  The issue is similar to that in AFCCA’s recent published opinion in Slagle, which we noted here.

Insert familiar disclosure here.  I now have a 100% grant rate for supps using the phrase, “baby Wookiee.”