Opinion Analysis: A bitterly divided CAAF puts strict limits on a CCA’s ability to supplement the record, in United States v. Jessie
CAAF decided the Army case of United States v. Jessie, __ M.J. __, No. 19-0192/AR (CAAFlog case page) (link to slip op.), on April 6, 2020. Bitterly divided, a bare majority of the court holds that – with only a few exceptions not applicable to this case – Article 66 does not allow a Court of Criminal Appeals to consider matters outside the record when reviewing the appropriateness of the sentence. The dissenters not only disagree with that holding, but they also see it as an ominous pronouncement with no limiting principle.
Judge Maggs writes for the court, joined by Chief Judge Stucky and Judge Ryan. Judge Ohlson and Judge Sparks both dissent, and both write separate dissenting opinions.
Chief Warrant Officer (W-2) Jessie was convicted contrary to his pleas of not guilty, by a general court-martial composed of members, of two specifications of sexual assault of a child in violation of Article 120b, and was sentenced to confinement for four years, a reprimand, and to be dismissed. The Army CCA affirmed the findings and sentence in an unpublished en banc opinion, in which it refused to consider whether a policy in place at the Joint Regional Confinement Facility (JRCF) at Fort Leavenworth, Kansas, where Jessie was confined, warrants reduction of the sentence under the CCA’s sentence-appropriateness power.
Specifically, Military Correctional Complex Standard Operating Procedure 310 (SOP 310) – which has since been changed – prohibited Jessie from having any contact with children including his own biological children, because he was convicted of a child sex offense. Jessie challenged the SOP on appeal. He did not claim that it was cruel and unusual punishment (under the Eighth Amendment or Article 55), but he did ask for reduction of his sentence. The CCA held that it could consider Jessie’s claim, but it declined to do so, observing that the claim:
inevitably involves determining the outer limits of what is an acceptable prison policy for familial contact by convicted child sex offenders. That we might consider the claim does not mean we should. This is a claim we are poorly positioned to consider, and that within the structure of the military justice system is better entrusted to a determination by persons other than this Article I court.
United States v. Jessie, No. 20160187, slip op. at 10 (A. Ct. Crim. App. Dec. 28, 2018). CAAF then granted review of three issues:
I. Whether the Army court erred by considering military confinement policies but refusing to consider specific evidence of Appellant’s confinement conditions.
II. Whether the Army court conducted a valid Article 66 review when it failed to consider Appellant’s constitutional claims.
III. Whether Appellant’s constitutional rights were violated by a confinement facility policy that barred him from all forms of communication with his minor children without an individualized assessment demonstrating that an absolute bar was necessary.
The majority answers only the first two questions, holding that the CCA was not only right to refuse to consider specific evidence of Jessie’s situation, but that it was prohibited from considering that evidence because it is not part of the record of trial, and accordingly the CCA conducted a valid review. The majority refuses to address the third question, “because the documents that Appellant cites to support these claims are outside the record.” Slip op. at 15.
Judge Ohlson dissents from the majority’s “inordinately restrictive view of this issue” that he views “as misguided.” Ohlson, J., diss. op. at 1. He would remand the case to the CCA with emphasis that “the CCA has broad discretion to permit the parties to supplement the record.” Ohlson, J., diss. op. at 6.
Judge Sparks also dissents, as he believes that Article 66 requires a CCA to consider “any colorable constitutional claim related to sentence appropriateness even if that requires review of documents outside the record of trial.” Sparks, J., diss. op. at 1. Furthermore, he notes that CAAF itself has recently considered materials from outside the record in resolving cases, including just last year United States v. Navarette, 79 M.J. 123 (C.A.A.F. Aug. 1, 2019) (CAAFlog case page), where CAAF remanded the case to the Army CCA for further review of the appellant’s competency based on events that occurred long after the trial ended.
In Jessie, however, CAAF holds that “Article 66(c), UCMJ, does not permit the CCAs to consider matters that are outside the entire record.” Slip op. at 15.