United States v. Anderson features disturbing facts and an intriguing issue. Today’s CAAF opinion, available here, highlights the former but side-steps the latter. Judge Ryan wrote for a unanimous court.
Anderson was an Army Specialist who tried to provide military secrets to our nation’s enemies, including information about the vulnerabilities of U.S. military vehicles. Fortunately, the recipients of that information were not Muslim extremists, as he believed, but rather a member of a group of concerned citizens trying to prevent terrorist attacks and, later, law enforcement agents. Anderson was convicted of attempting to give intelligence to the enemy, two specs of attempting to communicate with the enemy, one spec of attempting to give aid to the enemy, and — in a gratuitous act of piling on that led to wholly unnecessary issues in this case — simple disorder in violation of Article 134, an offense that carries a maximum of 4 months’ confinement to go along with all of the other LWOP-authorized offenses.
Anderson pleaded not guilty, was convicted, and sentenced to confinement for life (not LWOP) and a DD.
One of the granted issues in the case was:
WAS APPELLANT AFFORDED A FAIR TRIAL EVEN THOUGH HIS REQUEST FOR A FORENSIC PSYCHIATRIST WAS DENIED AND THE GOVERNMENT THEREAFTER AVAILED ITSELF OF A FORENSIC PSYCHIATRIST AND ATTACKED THE QUALIFICATIONS OF THE VERY EXPERT IT DID MAKE AVAILABLE TO THE DEFENSE?
CAAF side-stepped that issue. The defense had requested the services of a particular civilian clinical and forensic psychologist. The CA denied the request. The defense subsequently asked the military judge to overturn that denial. The military judge declined to do so, finding no indication that Anderson lacked mental capacity or was unable to form specific intent. The defense then successfully requested the assistance of a different clinical psychologist.
The Anderson case had generated some buzz in the military justice community because it presented an issue that was the subject of one of the Cox Commission II’s recommendations. Anderson was understood (if you’ll excuse the passive voice) as presenting an estoppel-esque argument: can the government deny a defense expert witness request, provide the defense with an inferior substitute, and then exploit the inferiority of the substitute’s credentials? But CAAF doesn’t ultimately answer that question.
CAAF observes that the military judge “denied Appellant’s request that the Government be prevented from attacking Dr. Norris’s [the defense clinical psychologist’s] credentials, holding that such cross-examination would be relevant if [he] strayed beyond the bounds of his expertise.” But “[t]he Government’s cross-examination of Dr. Norris was quite limited. While the Government did draw attention to the fact that he was a clinical and not a forensic psychologist — and therefore not an expert in the interface between the law and psychology — neither the accuracy of Dr. Norris’s psychological evaluation nor his qualification to make such an evaluation was called into question.” The defense also presented Appellant’s treating psychiatrist. A government forensic psychiatrist who testified on rebuttal characterized the defense mental health professionals’ opinions as “all reasonable considerations,” but explained why those considerations affected neither Anderson’s “intellectual functioning nor his ability to tell the difference between right and wrong.” While the Government expert disagreed with portions of the treating psychiatrist’s testimony, he “did not comment on any of the assertions made by Dr. Norris,” the clinical psychologist.
CAAF doesn’t address whether the military judge erred when he denied the defense request to prevent the prosecution from attacking Dr. Norris’s credentials, though the opinion suggests that the Government’s effort to emphasize that Dr. Norris wasn’t a forensic psychologist didn’t matter. Rather, CAAF focuses on whether the defense was prejudiced by the Government forensic psychiatrist’s testimony on rebuttal, holding that it wasn’t. So the estoppel-esque argument that the Cox Commission II addressed in its report appears to remain undecided.
CAAF then enters into a multiplicity/unreasonable multiplication of charges/preemption analysis. The most striking feature of this discussion is that it relies on a prong of the unreasonable multiplication of charges test about which CAAF expressed concern in Quiroz. In Anderson, CAAF writes: “Five factors should be considered when determining if multiple findings of guilt constitute an unreasonable multiplication of charges . . . (4) Does the number of charges and specifications unfairly increase the appellant’s punitive exposure?” Anderson, slip op. at 18 (quoting United States v. Quiroz, 55 M.J. 334, 338 (C.A.A.F. 2001)) (emphasis in original). But in Quiroz, CAAF remanded the case due to NMCCA’s use of the “unfairly increase” standard. CAAF wrote:
[W]e have reservations about the lower court’s reference to a factor addressing whether “the number of charges and specifications unfairly increase[s] the appellant’s punitive exposure.” The term “unfairly” could be viewed as applying the factor under an equitable rather than a legal standard, in light of the lower court’s reference to its “equitable power” in its initial decision. 52 MJ at 513. The factor may be used, however, so long as it addresses the question in terms of the legal issue as to whether the number of charges and specifications “unreasonably” increased appellant’s punitive exposure.
Quiroz, 55 M.J. at 338. It appears that until today, no post-Quiroz CAAF opinion had used the “unfairly increase” standard. Rather, CAAF evaluated whether the charges and specs “unreasonably increase the appellant’s punitive exposure.” See, e.g., United States v. Paxton, 64 M.J. 484, 491 (C.A.A.F. 2007). Anderson introduces some uncertainty as to how the unreasonable multiplication of charges test should be framed going forward.