When I was writing an extended post about remedies for Walters/Seider violations on Friday, I was unaware that on that very day, CAAF had granted review of two Walters/Seider issues arising from naval cases.

The granted issue in United States v. Ross, No. 09-0242/MC, is : “WHETHER, BY FINDING APPELLANT GUILTY OF THE CHARGE AND SPECIFICATION EXCEPT FOR THE WORDS ‘ON DIVERS OCCASIONS,’ THE MILITARY JUDGE RENDERED AMBIGUOUS FINDINGS NOT CAPABLE OF REVIEW UNDER ARTICLE 66, UCMJ, 10 U.S.C. § 866.” I can’t find NMCCA’s opinion in the case anywhere online — including in the formerly comprehensive but now useless Navy Knowledge Online. If anyone has a copy, please e-mail it to us at caaflog@caaflog.com. The wording of the issue makes clear that this is a judge-alone case, so it could present the remedy isuse we discussed regarding Wilson.

The granted issue in United States v. Trew, No. 09-0414/NA, is “WHETHER, IN LIGHT OF UNITED STATES v. WALTERS, 58 M.J. 391 (C.A.A.F. 2003) AND UNITED STATES v. SEIDER, 60 M.J. 36 (C.A.A.F. 2004), THE CHARGE AND SPECIFICATION MUST BE DISMISSED WITH PREJUDICE, BECAUSE THE LOWER COURT COULD NOT CONDUCT A PROPER APPELLATE REVIEW UNDER ARTICLE 66 AND DOUBLE JEOPARDY PREVENTS A REHEARING. SEE UNITED STATES v. WILSON __ M.J. ___ (C.A.A.F. 2009).” NMCCA’s opinion in the case is published at 67 M.J. 603. We briefly discussed Trew here. Like Wilson, Trew was a judge-along court-martial. So if CAAF rules for the defense and CDR Battin is still on the bench, it could also provide CAAF with an opportunity to remand the case for clarification as a remedy for a Walters violation in a judge-alone case.

11 Responses to “Two new Walters/Seider issues”

  1. Anonymous says:

    Just an observation: When COL Sullivan blogged his original commentary on Trew, he said it "involves the deathly boring Walters line of cases." The comments were equally indifferent. Could explain why these Walters errors keep popping up. No one seemed to care.

  2. Anonymous says:

    Battin has already retired…

  3. Anonymous says:

    Looking at the NMCCA Trew opinion reminds me of the old legal adage that if you have to use the adjective "clear" or "clearly," the point you are making is anything but.

    In the spare 2-paragraph analysis portion of that opinion, where NMCCA crafts a new legal standard and distinguishes Walters, Judge Geiser uses the word "clear" or "clearly" 4 times. Or to put another way, out of 7 sentences of analysis, "clear" or "clearly" was in 4 of those sentences–greater than 50%.

    That by itself is a red flag that there is a deficiency in the legal analysis. That aside, it is a "clear" indicator of lazy legal writing.

  4. DB Cooper says:

    The continued occurrences of obvious Walters errors, after CAAF has issued several opinions on the topic, makes me severely doubt the notion that "military judges are presumed to know the law." If they knew the law, the errors would not occur.

  5. Anonymous says:

    Are NMCCA judges presumed to know the law?

  6. Anonymous says:

    Do CCA Judges even care?

  7. Cloudesley Shovell says:

    Trew does not appear to even raise a Walters/Seider issue. Walters is implicated only when a "divers occasions" spec is modified on findings to a "single occasion" spec without further info on which single occasion is at issue.

    In Trew, the adjudged and approved spec still had the "divers occasions" language in it. So Trew is really a case where the accused was convicted of "divers occasions" but the evidence only supported a conviction of one occasion.

    Because the "divers occasions" language was never excepted out, there was never any implied or inferred finding of not guilty. Thus, no Walters problem.

  8. Anonymous says:

    In Trew, the military judge, immediately after announcing her findings clarified that the finding of guilt was for "one occassion." But she didn't clarify which occassion.

    That is a Walters problem.

  9. Anonymous says:

    The government tried to get NMCCA to remand the case while Judge Battin was still on the bench and NMCCA refused. Had they done that this case could have been cleaned up.

  10. Cloudesley Shovell says:

    Anon 416pm–

    I read Walters to be grounded in Article 66 and its requirements that the CCA be able to both conduct a factual sufficiency review and not approve a finding of guilty on something that was not guilty at trial.

    In Trew, there was no finding of not guilty–the "divers occasions" language stayed in the specification. So the Walters concern about not affirming a finding of guilty where there was a finding of not guilty below doesn't exist.

    Whether Trew was a Walters kind of case or an inconsistent/impeached verdict case is up for debate. It will be interesting to see how CAAF handles the case.

  11. Anonymous says:

    Cloudesley,

    As the judge clarified that he was guilty of only "one occasion," when he was charged with "divers occasions," and evidence was put on of divers occasions, then he was in fact found "not guilty" of the other allegations beyond the judge's cryptic "one occasion."

    You don't get from "divers" to "one" without there being a finding of "not guilty" somewhere. The judge and TC failed to ensure that we can know what that was.