Green upholds the famous indecent language conviction for the utterance “mmmm-mmmm-mmmm.” It’s a unanimous opinion by Judge Erdmann. CAAF ruled that “indecent language” need not constitute a word or words. CAAF held that “mmmm-mmmm-mmmm” met the Black’s Law Dictionary definition of “language”: “[a]ny organized means of conveying or communicating ideas, esp. by human speech, written characters, or sign language.” CAAF also concluded that “mmmm-mmmm-mmmm” could be found to be indecent in the context in which it was uttered.
In Bradley, CAAF held that the accused’s unconditional guilty plea waived his right to appeal the military judge’s denial of a defense motion to disqualify the trial counsel due to his exposure to the accused’s immunized testimony. Judge Stucky wrote for the majority. Chief Judge Effron concurred in the result. Judge Baker dissented. The majority reversed the Navy-Marine Corps Court, which had held that the issue of the trial counsel’s participation in the case wasn’t waived by the guilty plea. CAAF rejected the concept of an “implied conditional guilty plea” upon which the Navy-Marine Corps Court had relied. The majority held that any objection to the trial counsel’s participation in the case was waived by the unconditional guilty plea.
Chief Judge Effron concluded that the issue wasn’t waived but that the military judge correctly denied the motion to DQ the TC.
Judge Baker concluded that the issue wasn’t waived, the motion to DQ the TC wasn’t limited to the findings, and that Appellant’s plea was improvident because it was entered with the understanding that it preserved the challenge to the TC’s participation in the case.
In reading the opinions, I found myself agreeing that Judge Baker’s point that “[i]t is not clear why or how a motion to remove trial counsel relates to the issue of guilt, beyond the general point that all procedures at trial ultimately relate to the question of guilt or innocence.” The challenge to the TC would seem to be equally applicable for sentencing purposes as for findings purposes. There may be a good response to that — perhaps arising from the concept that a plea of guilty waives the accused’s right against self-incrimination — but it doesn’t appear that the majority opinion addressed that point.