As we’ve noted, SO2 McCabe’s law firm has posted an announcement that the convening authority scrapped a planned trip to Iraq for the defense and trial couunsel to depose Ahmed Hashim Abed, the purported victim of the alleged assault  by SO2 McCabe. 

Now, I know that the military judge in the McCabe case is a fine judge, but let’s just hypothesize for the moment that the prosecution moves forward, a defense witness request for Abed’s in-court testimony is denied,   andSO2 McCabe is convicted of one or more of the charges against him.  He has a pretty good issue for the military appeallate courts, n’est ce pas?  Well, probably not.  Not because the issue isn’t good, but because even if he’s convicted, his case will probably never qualify for an appeal to NMCCA or CAAF.

Does anyone seriously think that if any of the SEALs are convicted, they’ll be sentenced to a year of confinement or a BCD?  If not, none of these cases will be reviewed by an appellate court unless the Judge Advocate General of the Navy chooses to refer an application under Article 69(b) to NMCCA.  And an Article 69(d) referral doesn’t happen once in a blue moon — it happens about once every four blue moons. 

The 40 or so Members of Congress who unsuccessfully tried to get SECDEF or Major General Cleveland to drop the charges against the SEALs should turn their attention to amending Article 66(c) to provide a right to appellate court review for servicemembers who are found guilty at a contested SPCM or GCM but aren’t sentenced to a year of confinement or a punitive discharge.

[NOTE:  I had originally stated that it doesn’t appear that a subjurisdictional SPCM would qualify for Article 69 review.  After Cap’n Crunch opined otherwise in the comments, I reread Article 69 and concluded that Cap’n Crunch was right and I was wrong.  It appears that a subjurisdictional SPCM can be reviewed under  Article 69(b).  Thanks, Cap’n!]

19 Responses to “A thought about the McCabe case [CORRECTED]”

  1. Southern Defense Counsel says:

    I agree. While there are arguments for limiting appellate review for guilty pleas, a member who contests all charges and receives what is currently a subjurisdictional sentence should still have a right of appeal. This is even more appropriate in cases that have true and long lasting effects – i.e. convictions for offenses that qualify for registry on a sex offender registry even though the sentence is for less than 1 year and no BCD. I would not, however, extend this right to servicemembers who pled guilty.

  2. anon says:

    Very interesting thought…and good point.

  3. Cap'n Crunch says:

    Can’t they petition TJAG to have this reviewed? Not that a normal case has a chance in heck of this being granted; but in this case? Well, I’d think the politics of having it referred by JAG to NMCCCA might be better than 50%, especially with a good appellate issue. Some other thoughts: If I were the defense counsel, I’d perhaps think of some way to introduce the fact that the government kept this witness, the alleged victim, away from the members, and argue on adverse inferences why that might be. Just a thought.

  4. Charles Gittins says:

    So . . . lets get NIMJ to start lobbying on this point. I think it is a good one and would be a welcome change to the UCMJ — and, for once, one that does not benefit the Government exclusively!

  5. Dwight Sullivan says:

    Cap’n Crunch, I think you’re right about a key point and I was wrong. As I reread Article 69, it looks like Article 69(b) gives the Judge Advocate General power to review an SPCM conviction that doesn’t result in a BCD or a year of confinement. I’ll correct the post to reflect that reality. But based on experience, I disagree that the odds of the Judge Advocate General of the Navy referring a conviction of the SEALs to the Navy-Marine Corps Court is as high as 50%

  6. Gene Fidell says:

    Cap’n Crunch is right that a subjurisdictional special court-martial can be the subject of an application under article 69(b). All that guarantees is a file-folder-type review, but the accused can ask the Judge Advocate General to send the case to the Court of Criminal Appeals under article 69(d). The power to do so is exercised sparingly at least in part because defense counsel do not ask very often.

  7. Dwight Sullivan says:

    Let me provide a recent example, though from the Air Force, not the Department of the Navy. After Col Murphy was convicted, his trial defense counsel filed a lengthy Article 69 appeal and asked that the Judge Advocate General of the Air Force refer it to the Air Force Court. This would have seemed a particularly appropriate case to do so, considering that the Judge Advocate General testified as a witness for the prosecution in the case. Yet the Judge Advocate General declined to refer the case to the Air Force Court and denied the appeal without explanation. On the other hand, the Judge Advocate General of the Air Force did refer the Harvey case to the Air Force Court pursuant to Article 69(d). See United States v. Harvey, 67 M.J. 758 (A.F. Ct. Crim. App. 2009). CAAF recently denied review in the case.

    Also note that in Murphy, the Government was able to file an Article 62 appeal in the case (albeit unsuccessfully) while the accused never had an ability to seek judicial review.

    [Disclosure: I was one of Col Murphy’s counsel on his Article 62 appeal.]

  8. Article16 says:

    If memory serves right, the Army only gets about two dozen Art. 69 applications each year (the numbers are in the front of each MJ reporter). Defense counsel would be submitting a lot more Article 69 applications if they understood that to be part of their jobs or even knew what it was.
    I say, if the 1105 matters include a petition for correction of legal errors section, they should also give notice that you’re willing to follow through with the review before TJAG.
    The other thing is that you can technically request article 69 review for even summary courts martial, and–lets be honest–prejudicial legal errors happen quite frequently in those. I say exercise those due process rights to the fullest.

  9. John O'Connor says:

    If I were advising a JAG (and Lord knows I’m not), I would tell him or her to think long and hard before referring a case to the CCA under Article 69. About the ONLY reasons I can think of for doing so is to get a recuring issue of law resolved by appellate authority without having to wait for a case meeting the requirements for Article 66 review, or if the JAG just feels there is a reviewable issue AND a conflict where he or she ought not resolve it. Instead of referring cases over, I would advise a JAG to decide the issue at his or her level — if relief is warranted, do it; if not, don’t.

    The reason I would encourage a JAG to handle these issues at the JAG level and not by referral to a CCA is that once you start referring cases over on any regular basis, you might get a frisky CCA to think that subjurisdictional cases (or, egads, summary courts-martial) are within its “potential” jurisdiction such that they start issuing writs or stays on cases they ought to leave alone.

  10. Gene Fidell says:

    In United States v. Nguyen, 56 M.J. 252 (2001) (mem.), CAAF exercised All Writs Act power over a non-BCD special court-martial in the interval between completion of trial and CA action; because TJAG referral to NMCCA remained a possibility the case was within CAAF’s potential appellate jurisdiction.

  11. John O'Connor says:

    Right, that’s the type of friskiness (overreaching in my mind) I would not want to encourage with any statistical data.

  12. anon says:

    What was the result in the COL Murphy court-martial?

  13. No Man says:

    Though my favorite application of All Writs power is Dew v. United States, 48 M.J. 639, 645-47 (A. Ct. Crim. App. 1998), a case that actually reviewed an Art. 69 review for error. As the Army Court explained,

    Although additional review of a general court-martial examined under Article 69(a), UCMJ, may raise issues concerning finality, further action on a case by The Judge Advocate General in accordance with Article 69, UCMJ, has long been regarded as an exception to finality under Article 76, UCMJ. A specific exception to finality was provided by Congress in the 1989 amendments to Article 69, UCMJ. That legislation created Article 69(d), UCMJ, a section that provides for appellate review by our court of courts-martial normally reviewed by The Judge Advocate General, including cases already reviewed by him. That provision is explicit legislative recognition that Article 76, UCMJ, does not preclude additional review. . . .

    We believe the proper criteria in this case is that the petitioner has the heavy burden to show clearly and indisputably that she is entitled to mandamus based on The Judge Advocate General’s usurpation of power, beyond gross error, in not sending this case to us.

    Id. at 647 & n.21.

  14. John O'Connor says:

    Yep, the JAG “can” send a case to the CCA, so perhaps he “must.”

  15. One Peeved Steve says:

    Seems like we need two amendments to the RCMs:
    1) Pretrial agreements could include a term waiving appellate review. (Currently prohibited, but if allowed would become as automatic as waiving the right to a panel)
    2) CCAs could review any issue not waived in a pre-trial agreement.

    Unresolved issues would include ‘naked’ guilty pleas; and to what degree a CCA could review the sentence of a mixed plea. Thoughts?

  16. No Man says:

    JO’C: I have always wondered why ACCA didn’t approach Dew from an APA perspective–review of final agency action. But they really didn’t style it that way, though there analysis really is aboput whether the Art. 69 review was reasonable. It makes a mess out of the JAG’s highly discretionary power.

  17. John O'Connor says:

    There’s probably an easy answer to this, but what sort of contempt powers do the CCAs and CAAF have? What if the CCAs invoked Dew and purported to review whether a JAG should have referred a subjurisdictional case to it, and the JAG just told the CCA to drop dead and stay in its own sandbox?

  18. Ama Goste says:

    CG–Check out the first recommendation in the second Cox Commission report (co-sponsored by NIMJ).

    Anon 1821–Col Murphy was found guilty, but there was no sentencing case. The WH refused to turn over documents related to Col M’s time there, the MJ determined these documents were necessary to Col M’s sentencing case, so the MJ ruled that the maximum punishment Col M could receive was “no punishment.”

  19. Cap'n Crunch says:

    Again, not sure how the defense of the SEALs will be handled but… seems to me not providing access to the so called victim will be a theme that any defense counsel worth his or her salt will pound on early and often.