Today CAAF granted review of an exceptionally interesting personal jurisdiction issue:  “APPELLANT PURPORTEDLY ENLISTED IN THE MARINE CORPS AFTER A JUDICIAL DETERMINATION OF HIS INCAPACITY TO CONTRACT, WHICH REMAINS IN EFFECT.  WAS HIS ENLISTMENT VOID AB INITIO?”  United States v. Fry, __ M.J. __, No. 11-0396/MC (C.A.A.F. May 26, 2011).  NMCCA’s unpublished opinion is available hereUnited States v. Fry, No. NMCCA 201000179 (N-M. Ct. Crim. App. Jan. 27, 2011).

CAAF also expanded the Fosler Trailer Park today, specifying Fosler issues in two more cases.  United States v. Arnold, __ M.J. __, No. 11-0481/AF (C.A.A.F. May 26, 2011); United States v. Geyer, __ M.J. __, No. 11-0446/MC (C.A.A.F. May 26, 2011).

7 Responses to “CAAF grants”

  1. Fogley says:

    Hate to say it but I think NMCCA is right.

    Suppose we have a CLEAR conflict of state law: the communist party takes over the CA state legislature and purports to outlaw enlistment in the federal military. The enlistments would still be valid under federal law, so military jurisdiction lies.

  2. Cloudesley Shovell says:

    NMCCA gently chided Appellant’s counsel for continuing to advance “the assertion of a complete incapacity to contract”, calling it an overstatement. For Appellant to prevail, CAAF is going to have to conclude a state law determination regarding capacity to contract is conclusive despite a different federal law standard for capacity to contract for enlistment.

    It’s a nice try by Appellant, but I think NMCCA got this one right. That being said, I’m a bit surprised, given the facts set forth in NMCCA’s opinion, that Appellant didn’t get bounced out of recruit training on a BIOTS separation.

  3. Bill C says:

    I agree with both of the above sentiments about the eventual disposition of the case, but I also wonder how this Marine, and this case, got this far.

  4. chancery says:

    “[E]xceptionally interesting” is, if anything, an understatement with respect to the issue. You could design a whole course around it, or almost a curriculum. But the actual decision is a bit of a disappointment. The narrow construction of the conservatorship ruling lets the court duck the hard conflict issues. That’s good judicial craftsmanship of course, but it’s disappointing to the peanut gallery.

    The court gave near-preclusive weight to the Army’s own determinations of the defendant’s capacity to contract and to stand trial, and that’s obviously routine and important for institutional reasons. Yet I get a sense that there was something inherently more reliable about the state court determination of incapacity, resting, as it seems to, on a record of many years of evidence and experience. (Bad and abusive conservatorship determinations, are a problem and can be hard to detect, but that’s another issue.) And this doesn’t seem like a case in which the importance of preserving the military’s prerogative authority (probably not the right technical term) over its members and vindicating criminal justice principles outweighed the hardship to the unfortunate defendant.

    If the conservatorship order had been a bit broader, would it have been a problem for the court to have discretion to defer to the civilian court’s order, based on its own determination that doing so would not frustrate important policies of the federal statutes governing the military? This kind of escape doctrine could be abused, but somehow I think that the military courts would be up to the job of policing its boundaries.

    chancery (not a military lawyer, as should be obvious)

  5. Dew_Process says:

    I agree with Bill C – it seems a bit excessive, if not cruel under the circumstances, to take this case to a court-martial. I don’t know if it was briefed, but there’s an interesting 10th Amendment issue here.

  6. Stewie says:

    child porn possession? It’s the only reason I can think of that this case couldn’t have been disposed of with an administrative discharge.

  7. Phil Cave says:

    I love this phrase, “Without the benefit of knowing his full history, this behavior alone was not so abnormal as to alarm training officials.”

    And don’t you just love this bit, “The Government called a psychologist who stated that he determined that the appellant understood the effect of enlisting. In reaching this determination, the doctor hedged his responses somewhat by noting both that the appellant was not fully responsive (could that have been evidence of something warranting additional inquiry?) and that he did not have access to the appellant’s full history.” Why was the prosecution psychologist not given the full records and ask to re-evaluate (or was he and it’s just not part of the opinion)? :-(