CAAF’s fragmented opinion in United States v. Foreny, __ M.J. __, No. 05-0647/NA (C.A.A.F. March 26, 2009), isn’t easily interpreted and won’t be easily applied. Judge Stucky wrote the plurality opinion, joined by Judge Baker. But three of the five CAAF judges actually disagreed with a key portion of the plurality opinion. Yet, under traditional principles of stare decisis, the legal proposition agreed to by Chief Judge Effron’s concurrence and the two dissenting judges isn’t controlling precedent.

Forney was a LT(JG) who downloaded 1,700 to 1,800 images of naked girls between the ages of 10 and 15 on computers in his stateroom and the engineering log room aboard USS DAVID R. RAY (DD 971). For this he was initially convicted of both Article 133 and Article 134 offenses. But the case was tried pre-Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), and the military judge gave the members an instruction that didn’t distinguish virtual from real images. While the Article 134 conviction was later invalidated on that basis, the Article 133 conviction remained. This latest opinion in the case considers whether the Article 133 conviction could withstand this issue with the instructions. Three judges held that it could but split 2-1 as to why.

In Marks v. United States, the Supreme Court provided the law on interpreting Supreme Court decisions that lack an opinion of the Court: “when a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” Marks v. United States, 430 U.S. 188, 193 (1977).

Assuming that Marks also governs the way CAAF opinions should be construed–as at least one CAAF judge has assumed, see United States v. Lazauskas, 62 M.J. 39, 44 & 44 n.10 (C.A.A.F. 2005) (Gierke, C.J., concurring)–then Forney stands for the narrowest grounds on which Chief Judge Effron agreed with the plurality. That would seem to be that any instructional error in the case is harmless beyond a reasonable doubt–a point that the plurality made in footnote 2 (on page 12) of its opinion and that Chief Judge Effron made on pages 9-12 of his separate opinion concurring in the result.

Both Chief Judge Effron and the dissenters went out of their way to note that a majority of the court’s judges agree that in an Article 133 prosecution, “the accused is entitled to present evidence that the conduct does not amount to an offense in civilian society.” See Chief Judge Effron’s concurrence at 7-8; see also Judge Erdmann’s dissent at 4 n.1 (agreeing with this portion of Chief Judge Effron’s concurrence). Chief Judge Effron counted CAAF’s noses and observed:

Judge Erdmann, joined by Judge Ryan, makes a similar point, noting that the record in this case does not establish that the members gave fair consideration to the nature of the charged conduct separate from the nature of the offense as a civilian crime. See Forney, __ M.J. at __ (3-4) (Erdmann, J., with whom Ryan, J., joins, dissenting). I agree. The end result is that three judges, a majority of this Court, agree on the nature of the instructional error in this case. See id. at 4 n.1.

Id. at 9 n.1.

While Chief Judge Effron’s point is important as a predictive matter, it doesn’t turn those three judges’ views into precedent. As the D.C. Circuit has observed: “we do not think we are free to combine a dissent with a concurrence to form a Marks majority.” King v. Palmer, 950 F.2d 771, 783 (D.C. Cir. 1991) (en banc). The Eleventh Circuit similarly recently rejected a nose-counting approach that would credit the votes of dissenters:

We are controlled by the decisions of the Supreme Court. Dissenters, by definition, have not joined the Court’s decision. In our view, Marks does not direct lower courts interpreting fractured Supreme Court decisions to consider the positions of those who dissented. . . . Marks talks about those who “concurred in the judgment[],” not those who did not join the judgment. Marks, 430 U.S. at 193, 97 S. Ct. at 993.

United States v. Robison, 505 F.3d 1208, 1221 (11th Cir. 2007), reh’g en banc denied, 521 F.3d 1319 (11th Cir.), cert. denied sub nom. United States v. McWane, Inc., 129 S. Ct. 630 (2008).

Trial judges and CCAs might choose to follow the interpretation of Article 133 that those three judges provided–and, at least as long as all three remain on CAAF, it might be judicially economical to do so. But their view does not appear to be controlling precedent. Their view is helpful as a predictive matter, but not as a controlling precedent. If the issue of how Article 133 intersects with constitutional limitations on the applicability of federal civilian statutes doesn’t arise again until one of more of those three judges has departed CAAF, then their views may not even remain helpful as a predictive matter. In any event, from a stare decisis standpoint, the tabula is still rasa.

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