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.

16 Responses to “CAAF issues Anderson opinion [revised]”

  1. Anonymous says:

    Unreasonable Multiplication of Charges v. Unfair Multiplication of Charges…

    well, at least we don’t have to change the acronym.

  2. blahblahblah says:

    oh blah blah blah. What a dumb CAAF precedent about how you can’t say “unfair” while being a court of law because it presumes equitable power. It’s 2010 – YES WE CAN.

  3. John O'Connor says:

    Huh, I thought UMC stood for Undividual Military Counsel.

  4. Anonymous says:

    sloppy writing or sloppy editing … sloppy nonetheless

  5. Anonymous says:

    Couldn’t be sloppy editing or sloppy writing. Judge Ryan underlined the word “unfairly” in her opinion, so she must have really meant it.

  6. Dwight Sullivan says:

    Anon 0658 — I’m not sure whether you were trying to be sarcastic or not (one of the many problems with blogs; it’s often difficult to tell), but the word unfairly was italicized in CAAF’s Quiroz opinion. So it was italicized in Anderson simply because it was quoting Quiroz.

  7. Anonymous says:

    Then maybe Judge Ryan should have put in a parenthetical comment – “emphasis in original”. She didn’t. So, without the reader going back to Quiroz, any reader would be confused.

  8. Dwight Sullivan says:

    According to the Bluebook, one should NOT put in “emphasis in the original.” Only a change in emphasis is noted in a parenthetical.

  9. John O'Connor says:

    I agree with Dwight. Absent a parenthetical that says “emphasis added,” you assume that the emphasis carried over from the original source.

  10. Anonymous says:

    Okay. You win the Bluebook prize (and who made the editors of Harvard Law Review Assciation king, anyway?). Just saying, some ignorant lay readers like me may be confused. So, what does the Bluebook say about a court adopting a word it disparaged in an earlier opinion? In my lay opinion, the Quiroz standard is now changed. All five judges have signed onto “unfairly.” (emphasis in original).

  11. Anonymous says:

    This happened in an opinion a year or so ago (I believe on the lesser-included issue). I’d presume, unless the opinion is corrected, this is the new standard counsel should adopt in pleadings . . . However, this is why opinions need to be clear and specific if they are overruling or changing precedent (and yes, just stating the obvious). CAAF has on occassion not followed the advice in Rorie and left the proverbial hanging chad out there with no specific guidance to counsel. For a good court, that is not good practice.

  12. Simpleton says:

    I know one implicates equity and the other a legal standard, but what is the delta? W/o the benefit of a dictionary and using instead my unrefined melon, it appears that unreasonable means to be w/o reason. Unfair is something not justified by the facts and circumstances. If a charge exists that is not duplicitous there is reason to charge it, even if a single actus reus is the factual basis for the multiple charges. Thus it would also appear that the facts and circumstances justify multiple charges. One could argue that it is fair to charge a single act as multiple offenses if the powers that be created a system with these offenses and your existence and actus reus occur within that very system. Basically, do the crime, do the time.

    I would argue that unreasonable and unfair are virtually synonymous, but it is more appropriate to use the one that can be understood as a legal standard. Equity principles should be minimized if all possible as they can potentially diminish precedent and the rule of law to the whim, character, philosophy, etc., of a particular judge(s) and his/her understanding of fairness.

  13. Anonymous says:

    Mr Sullivan, I have to take issue with your Bluebook application here. You are correct that according to the Bluebook, when a writer quotes a passage, then the writer is not supposed to indicate “that emphasis in the quotation appears in the original.” Rule 5-2(d)(iii). The problem with the phrase that you and anonymous are debating is that the phrase is NOT A QUOTATION. Quiroz was cited, NOT QUOTED. As such, I believe that Anonymous is right. The emphasis belongs to CAAF.

  14. Dwight Sullivan says:

    Anon 1159, greetings from BWI, where my netbook is about to run out of power. Take another look at Anderson and Quiroz. Anderson does quote the five Quiroz factors and not merely cite them (though the quotation omits the word “and” before the fifth Quiroz factor). Page 18 of the Anderson slip opinion sets out a block quotation from Quiroz, followed by an “Id.” citation with a parenthetical indicating “citation and quotation marks omitted.” Obviously that parenthetical wouldn’t be there if it weren’t a direct quotation.

  15. Anonymous says:

    Mr Sullivan, have to disagree again. If this list of 5 factors was a direct quote, each factor wouldn’t be in a separate paragraph. The original Quiroz opinion listed the factors together in the middle of one paragraph. Now we have 5 separate paragraphs, and of course, as you point out, the “and” before the last paragraph is missing. So perhaps the earlier anon was correct – sloppy writing or sloppy editing. Nonetheless, CAAF appears to be emphasizing the word “unfairly.”

  16. Dwight Sullivan says:

    Anon 0716 — I understand your argument that Anderson doesn’t exactly quote Quiroz. But it purports to. It is set off in block quotation format with a citation following, exactly as the Bluebook prescribes for a quotation of 50 words or longer. And, most tellingly, the citation is followed by “citation and quotation marks omitted.” If it isn’t a quotation, then there is simply no reason to indicate a change from the original. Such a parenthetical is used only in the case of a quotation. (I’m on a borrowed computer in a Nashville Starbucks at the moment. I don’t think the barristas (sp?) have a Bluebook, so I can’t quote (or even cite) Bluebook chapter and verse at the moment. So my search for further textual support will have to wait for tomorrow.)