JO’C and I swap views on NMCCA’s recent unpublished but intriguing ruling dismissing an Article 62 appeal in United States v. Dossey, No. NMCCA 200700537 (N-M. Ct. Crim. App. Oct. 23, 2007), below.

Here is how I would analyze the issue if Guert Gansevoort were to be posthumously promoted to Judge Advocate General of the Navy and appointed me to NMCCA. (I know, I know — technically “assigned me to NMCCA.” See Edmond v. United States, 520 U.S. 651, 658 (1997) (“Under the Appointments Clause, Congress could not give the Judge Advocate General power to ‘appoint’ even inferior officers of the United States; that power can be conferred only upon the President, department heads, and courts of law.”).)

Article 62 provides that the government may appeal “[a]n order or ruling of the military judge which terminates the proceedings with respect to a charge or specification.” 10 U.S.C. § 862. So the question becomes whether a mistrial “terminates the proceedings with respect to a charge or specification.” And the answer to that question appears to be shrouded in ambiguity. R.C.M. 915 governs mistrials. The discussion to the Rule (which, of course, is non-binding) says that “a mistrial is appropriate when the proceedings must be terminated because of a legal defect, such as a jurisdictional defect, which can be cured . . . .” R.C.M. 915(a) discussion (emphasis added). So the 1984 Manual’s drafters apparently understood a mistrial to be included in Article 62’s “terminates the proceedings” criterion. (For you Chevron aficionados, the drafters’ analysis isn’t entitled to deference. First, as Justice Scalia has observed, “we have never thought that the interpretation of those charged with prosecuting criminal statutes is entitled to deference.” Crandon v. United States, 494 U.S. 152, 177 (1990) (Scalia, J., concurring); accord Gonzales v. Oregon, 546 U.S. 243, 263 (2006). Second, the Manual’s discussion itself eschews the notion that the discussion constitutes an agency interpretation of the UCMJ. See Manual for Courts-Martial, United States, Pt. I, ¶ 4 discussion (2005 ed.) (noting that the discussion and other supplementary materials in the MCM “do not constitute the official view of the Department of Defense, the Department of Transportation, the Department of Justice, the military departments, the United States Court of Appeals for the Armed Forces, or any other authority of the Government of the United States”).)

But the discussion to R.C.M. 915 also provides that “[u]pon declaration of a mistrial, the affected charges are returned to the convening authority who may refer them anew or otherwise dispose of them.” Consistent with this discussion, military appellate courts have recognized a convening authority’s power to re-refer charges that have been the subject of a mistrial. See, e.g., United States v. Seward, 49 M.J. 369 (C.A.A.F. 1998); United States v. Blackett, 62 M.J. 625 (N-M. Ct. Crim. App. 2006). Given the possibility of re-referring charges to another court-martial, have proceedings been terminated by a mistrial? If Article 62 used the phrase, “a proceeding,” it would seem apparent that the answer is yes. But because Article 62 speaks of a ruling “which terminates the proceedings with respect to a charge or specification,” 10 U.S.C. 862 (emphasis added), the answer isn’t clear to me. After all, further proceedings are authorized, so all proceedings haven’t been terminated.

Because I find the statutory language to be ambiguous, it is appropriate to consult canons of construction. And here the canons speak without ambiguity. As the Navy-Marine Corps Court itself has held, statutes authorizing government appeals “are construed strictly against the right of the prosecution to appeal.” United States v. Pearson, 33 M.J. 777, 779 (N.M.C.M.R. 1991). Senior Judge Mitchell’s opinion for the Navy-Marine Corps Court explained, “Because these statutes compete with speedy trial and double jeopardy protection as well as judicial impartiality and piecemeal appeal policies, prosecution appeals are not particularly favored in the courts.” Id. at 779. Indeed, the Supremes have similarly observed that “in the federal jurisprudence, at least, appeals by the Government in criminal cases are something unusual, exceptional, not favored.” Will v. United States, 389 U.S. 90, 96 (1967) (quoting Carroll v. United States, 354 U.S. 394, 400 (1957)).

So I would resolve Article 62’s ambiguity by following the canon that statutes authorizing government appeals are strictly construed against the right to appeal and therefore resolve the ambiguity by holding that where the government may refer the affected charges to another court-martial (as would also occur where, for example, a military judge dismisses charges on speedy trial grounds without prejudice), the government does not have a right to an Article 62 appeal.

The intriguing Dossey opinion generates a few additional thoughts. First, while NMCCA’s opinion raises fascinating legal issues, if CAAF were to conclude in Lopez de Victoria and Michael that it has no Article 67 power to “act” on a Court of Criminal Appeals’ ruling on an Article 62 appeal, the government could potentially challenge this ruling only by filing a rare government petition for extraordinary relief at CAAF. (Because the case can be re-referred, such a writ would likely lie within CAAF’s potential appellate jurisdiction and could lead to CAAF reviewing NMCCA’s opinion.) Second, why is such an intriguing opinion not published? Third, to beat a horse on which I frequently flail, why have three business days passed without this intriguing opinion — as well as a published NMCCA opinion in another Article 62 appeal released the same day — being uploaded to either NMCCA’s web site or LEXIS? These are important decisions that everyone who follows military justice should know about. These opinions’ availability shouldn’t be hostage to the fortuity that a barely-technically-proficient Unfrozen Caveman Lawyer happens to have access to both NKO and a web site.

11 Responses to “Parsing Dossey”

  1. John O'Connor says:

    Sincer we’re all here getting bikini waxes together and all that, I’ll add that I place great weight on CAAFlog’s opinions, while recognizing, as I’m sure he does with me, that he has something of a different world view than I do. So, in looking over his comments on my comments, I offer the following thoughts.

    I’m working under the assumption that the committee report doesn’t say that mistrials aren’t appealable. I make this assumption based on my view that Judge White probably would have quoted such language if it existed. If that’s a faulty assumption, then all bet are off.

    I also note that the committee report CAAFlog quotes out below talks of Article 62 as being “similar” (not “identical”) in scope to then-existing civilian practice. I also don’t buy that proceedings really connotes something different from proceeding in this context. You can, I believe, find lots and lots of references to the proceedingS of a single court-martial.

    While this is NOT, in my view, a dispositive notion in the face of clear statutory guidance, an absence of interlocutory appeal makes no pactical sense here either. It’s not satisfactory from an efficiency standpoint to say that the appeal, if it exists, lies from the second court-martial in the event that the MJ dismisses on double jeopardy grounds. This case is a classic example of that. The MJ screwed up royally by declaring a mistrial without asking the defense whether it wanted one. If the MJ erred in declaring a mistrial, it very well may be TOO LATE for the government to raise it on a second court-martial, even if a mistrial was inappropriate, because the first court-martial is long over and presumably is an egg that can’t be uncracked by the time of an appeal from a double jeopardy ruling in a second court-martial. The government’s only chance to fix the error, when there is one, is at the first court-martial.

  2. Phil Cave says:

    Does the double jeopardy clause prevent a new trial under the circumstances of this case?

  3. John O'Connor says:

    I don’t claim to be an expert in this area, but doesn’t an accused have a substantial former jeopardy argument on a retrial where the original trial was declared a mistrial while in progress and without the accused’s consent or request for the mistrial? My recollection is that he does.

  4. Phil Cave says:

    Well, that’s the interesting question. R.C.M. 915 clearly seeks to implement Oregon v. Kennedy, 456 U.S. 667, and similar cases. There are some military cases on the issue. Can the defense counsel craft a reasonable argument for double jeopardy. It appears the mistrial was sua sponte, and not with the consent of the accused.

  5. Bill Cassara says:

    Interestingly, I think this is similar to the argument being made by LT Watada’s lawyers in federal district court.

  6. John O'Connor says:

    Because of the great respect I have for CAAFlog’s dexterity in formulating legal arguments, I gave some extra thought today on the premises of CAAFlog’s argument against Article 62 jurisdiction over an order declaring a mistrial. To recap, CAAFlog’s argument, as I understand it, is that Article 62’s use of the plural “proceedings” (in discussing CCA jurisdiction over a government appeal of an order that “terminates the proceedings”) creates an ambiguity. As CAAFlog posits, the plural “proceedings” theoretically might mean multiple courts-martial (or potential courts-martial) for a single set of charges. Under CAAFlog’s reasoning, therefore, perhaps the “proceedings” haven’t been terminated by a mistrial because there could be a re-referral of the charges to a second court-martial. From there, CAAFlog applies a canon of construction that narrowly construes the government’s interlocutory appeal rights, to reach the conclusion that there is no CCA jurisdiction over a mistrial order.

    I’ll admit that my initial reaction is that CAAFlog’s argument is a bit too cute, that “proceedings” is a term generally used to describe the events taking place in a single court-martial, and I said so in response. I also generally distrust most canons of construction as being result-oriented. But maybe my own sense of terminology isn’t sufficient. Therefore, learning from the master, I applied the “what would Bill James do” theory in assessing whether the use of the plural “proceedings” in Articvle 62 really creates an ambiguity.

    Using CAAFlog’s helpful Word document setting out the articles of the UCMJ, I did a quick search to identify any instances in which the UCMJ referred to a single court-martial as the “proceedings” (plural). I expected to find a few useful references, but in fact there is a veritable cornucopia of instances in which the UCMJ refers to a single court-martial as “the proceedings.” Below are the examples I found through Article 63, at which time I got kind of tired and my attention waned:

    UCMJ, art. 1(14) (“The term ‘record’, when used in connection with the proceedings of a court-martial means . . . (A) an official written transcript, written summary, or other writing relating to the proceedings; or (B) an official audiotape, videotape, or similar material from which sound, or sound and visual images, depicting the proceedings may be reproduced.”); UCMJ, art. 19 (“A bad-conduct discharge, confinement for more than six months, or forfeiture of pay for more than six months may not be adjudged unless a complete record of the proceedings and testimony has been made . . . .”); UCMJ, art. 28 (“Under such regulations as the Secretary concerned may prescribe, the convening authority of a court-martial, military commission, or court of inquiry shall detail or employ qualified court reporters, who shall record the proceedings of and testimony taken before that court or commission.”); UCMJ, art. 38(a) (“The trial counsel of a general or special court-martial shall prosecute in the name of the United States, and shall, under the direction of the court, prepare the record of the proceedings.”); UCMJ, art. 38(c) (“In any court-martial proceeding resulting in a conviction, the defense counsel—(1) may forward for attachment to the record of proceedings a brief of such matters as he determines should be considered in behalf of the accused on review.”); UCMJ, art. 39(b) (“Proceedings under subsection (a) shall be conducted in the presence of the accused, the defense counsel, and the trial counsel and shall be made a part of the record. These proceedings may be conducted notwithstanding the number of members of the court and without regard to section 829 of this title (article 29).”); UCMJ, art. 39(c) (“When the members of a court-martial deliberate or vote, only the members may be present. All other proceedings, including any other consultation of the members of the court with counsel or the military judge, shall be made a part of the record and shall be in the presence of the accused, the defense counsel, the trial counsel, and, in cases in which a military judge has been detailed to the court, the military judge.”); UCMJ, art. 45(b) (“This finding shall constitute the finding of the court unless the plea of guilty is withdrawn prior to announcement of the sentence, in which event the proceedings shall continue as though the accused had pleaded not guilty.”); UCMJ, art. 48 (“A court-martial, provost court, or military commission may punish for contempt any person who uses any menacing word, sign, or gesture in its presence, or who disturbs its proceedings by any riot or disorder.”); UCMJ, art. 51(b) (“The military judge and, except for questions of challenge, the president of a court-martial without a military judge shall rule upon all questions of law and all interlocutory questions arising during the proceedings.”); UCMJ, art. 51(d) (“The military judge of such a court-martial shall determine all questions of law and fact arising during the proceedings and, if the accused is convicted, adjudge an appropriate sentence.”); UCMJ, art. 54(a) (“Each general court-martial shall keep a separate record of the proceedings in each case brought before it . . . .”); UCMJ, art. 54(b) (“Each special and summary court-martial shall keep a separate record of the proceedings in each case.”); UCMJ, art. 54(d) (“A copy of the record of the proceedings of each general and special court-martial shall be given to the accused as soon as it is authenticated.”); UCMJ, art. 63 (“Upon a rehearing the accused may not be tried for any offense of which he was found not guilty by the first court-martial, and no sentence in excess of or more severe than the original sentence may be approved, unless the sentence is based upon a finding of guilty of an offense not considered upon the merits in the original proceedings.”).

    You get a similar response when you search the MCM for instances in which a single court-martuial is referred to as “the proceedings” or as having plural “proceedings.”

    I also began a Westlaw search for instances in which military appellate court referred to the plural “proceedings” of a single court-martial, intending to search from 1990 to the present. I got worn out going from the present back to just September 24 of this year, as the CCAs regularly refer to the “proceedings” of a single court-martial. I apologize in advance for the shorthand bluebooking, but you get the point:

    United States v. Smith, 2007 WL 3025072, at *2 (NMCCA Oct. 16, 2007) (“In the interests of judicial economy and to avoid additional delay in these already lengthy proceedings.”); United States v. Cross, 2007 WL 2846918, at *7 (NMCCA Sept. 27, 2007) (“The appellant was sentenced on 14 December 2005, but due to a post-trial session pursuant to Article 39(a), UCMJ, the proceedings before the court-martial were not concluded until 18 January 2006.”); United States v. Crane, 2007 WL 2792797, at *1 (AFCCA Sept. 26, 2007) (“The appellant’s sentence is within legal limits and no error prejudicial to the appellant’s substantial rights occurred during the findings or sentencing proceedings.”); United States v. Pullam, 2007 WL 2790626, at *2 (AFCCA Sept. 24, 2007) (“Specifically, the appellant asserts, citing R.C.M. 915(a), that a mistrial is appropriate when such action is ‘manifestly necessary in the interest of justice because of circumstances arising during the proceedings which cast substantial doubt upon the fairness of the proceedings.'”); United States v. Barrentone, 2007 WL 2790782, at *5 (AFCCA Sept. 24, 2007) (“The Technical Sergeant who wrote the first letter referenced above was called as a witness by the defense during pre-sentencing proceedings and the following exchange occurred . . . .”).

    Therefore, having given CAAFlog’s argument considerable thought, I don’t think it holds water to say that the use of the plural “proceedings” in Article 62 creates an ambiguity such that it might refer only to an order that terminates the current court-martial but also explicitly precludes a re-referral to a new court-martial. Therefore, I think the CCA has jurisdiction over a mistrial order under Article 62.

    I apologize for the length of this post.

  7. CAAFlog says:

    But if you do a search for “proceeding” (singular) in the UCMJ, you will also get a number of hits. See, e.g., Article 37(a); Article 38(c); Article 44(b) and (c) — which seem particularly important since Article 44 is the double jeopardy article; Article 49(d); ARTICLE 62(a)(1)(B); ARTICLE 62(a)(2); and Article 106a(2)(B).

    That’s why, to me, it’s ambiguous — it certainly isn’t CLEAR to me that the use of “the proceedings” in Article 62(a)(1)(A) refers to all court-martial proceedings, but it also isn’t clear to me that it doesn’t. The ambiguity is heightened by the fact that Article 62(a)(1)(A) refers to a ruling “which terminates the proceedings [plural] with respect to a charge or specification” while the VERY NEXT subsection refers to a ruling “which excludes evidence that is substantial proof of a fact material in the proceeding.” [singular] Given Congress’s use of the singular and the plural so close together, it seems quite plausible that Congress might have meant something different when it used the singular rather than the plural when creating the current Article 62 in the Military Justice Act of 1983. Again, I’m not saying that the language is dispositive, but simply that it creates an ambiguity. And once that ambiguity is created, then it is appropriate to resort to the canons of statutory interpretation to resolve that ambiguity.

    When I get home I will make another posting offering some of Justice Scalia’s thoughts about the canons of statutory construction.

  8. John O'Connor says:

    I think the UCMJ’s use of “proceeding” and “proceedings” essentially interchangeably doesn’t lead to an ambiguity, but rather demonstrates that the terms are used, well, interchangeably.

  9. Phil Cave says:

    I think you both give too much credit to the drafters.

  10. CAAFlog says:

    Justice Scalia is a proponent of canons of statutory construction when used reasonably. He makes the case for them at pages 25-27 of Antonin Scalia, A Matter of Interpretation (1997). (I have a signed copy of this book. The story of how that came about is pretty amusing. If you, dear reader, and I are ever drinking beer together, do ask me about it.)

    I can’t reproduce the entire portion without too much typing and probable copyright infringement, so I urge you to read it. It might be encapsulated as, “Canons good; Llewellyn bad.” Here’s the upshot: “Every canon is simply one indication of meaning; and if there are more contrary indications (perhaps supported by other canons), it must yield. But that does not render the entire enterprise a fraud–not, at least, unless the judge wishes to make it so.”

    Because Congress did seem to use “the proceedings” and “proceeding” fairly indiscriminately, I am uncertain exactly what Congress meant by “the proceedings” in Art. 62(a)(1)(A). Maybe it meant “all proceedings”; maybe it didn’t. Especially since Art. 62(a)(1)(B) refers to “the proceeding” (singular), it seems especially plausible that Congress meant something different when it referred to “the proceedings” (plural) in the preceding subsection (both enacted as portions of the Military Justice Act of 1983). Congress’s exact meaning was ambiguous. In light of that ambiguity, I would resort to the well-established canon that statutes authorizing government appeals are to be construed strictly against the government’s right to appeal and vote with Judge White.

    Further affiant sayeth not.

  11. John O'Connor says:

    I agree with what you quotye from Jsutice Scalia’s book. Canons, other than variations on plain meaning rules, are best employed as intuitive truths about clues to the meanuing of text, but not as inexorable commands. I will say, however, that I am highly negatively disposed toward canons by which the courts find certain causes of action or other acts “disfavored,” particularly when they are not dealing with common law issues. Basically, I think a court steps gfar outside its legitimate bounds to announce that it is not going to give a legislative enactment a “fair” construction but wikll tip the scales one way or another because the judiciary has decided to lebal something as “disfavored” or subject to “strict” or “narrow” construction.

    Turning to the case at hand, the way I see it, CAAFlog is leaning on the thinnest of reeds to find an ambiguity (when I really don’t think there’s anything ambiguous about Article 62), a stretch that would allow CAAFlog to use his 1% construction of Article 62 to carry the day by then taking advantage of what is in my mind an illegitimate canon of construction anyway to adopt a meaning that is highly improbable under all the circumstances. Basically, a canon of construction that disfavors government appeals lends itself toward soemone who doesn’t like government appeals streeeetching to find any conceivable ambiguity in order to reach a preferred result. Of course, I wouldn’t actually accuse CAAFlog of results-oriented jurisprudence (wink), but some other less principled person could use such canons in asuch a creative way.

    And, yes, I know I’m not a judge and one theoretically has to live with ill-conceived canons of construction that in fact exist, but I would never get there because I don’t find Article 62 the slightest bit ambiguous.