Here’s a link to the opinion.  United States v. Fosler, __ M.J. __, No. 11-0149/MC (C.A.A.F. Aug. 8, 2011).  The Kabul Klipper says, “It’s like a tornado through a trailer park.”

Judge Stucky wrote for the majority, joined by Judges Erdmann and Ryan.  Chief Judge Effron and Judge Baker dissented.

17 Responses to “CAAF rules for defense in Fosler”

  1. Retired army judge says:

    This may in fact be the worst decision ever rendered by the military’s highest court. The court’s rationale is purely form over substance — Apparently notice pleading is no longer applicable in military law. Despite decades of well established law in this regard, now it is all thrown out because CAAF said it would be impossible for an accused to know from the charges whether his conduct was prejudicial to good order or was service discrediting. Seriously? For all these years an accused was not on notice and couldn’t prepare a defense?

    Baker is absolutely right when he says that not only has RCM 307 been rendered essentially useless, but it also calls into question whether the President has any role in promulgating rules for courts martial and elements of offenses under Art 134. XZ

    I have no doubt the esteemed Judge Robinson O. Everett is shaking his head on this one.

  2. soonergrunt says:

    Is this as big a deal as it looks to me?

  3. Ama Goste says:

    SG, not having read the decision yet, I’d wager the answer is “yes,” based on the 40+ trailers alone.

  4. Military Lawyer says:

    As Bob Dylan said, “The times they are a changin.” But this is a good decision, not a bad one. It forces those drafting charges, at least in terms of Art. 134, to maintain a certain level of drafting precision. And rightfully so. The close-enough mentality that pervades military justice needs to be eradicated.

  5. Rob M says:

    Superficially, this seems a little like last year’s Jones opinion- another CAAF reminder that just because the MCM says something, that doesn’t make it law.

  6. stewie says:

    the solution is pretty simple, plead clause 1 and 2 in every single case involving 134.

  7. W says:

    It will be interesting if some of these cases are retried. Will the defense bar claim double jeopardy? Can you logically do so when a specification never stated an offense?

  8. stewie says:

    I dont think so, how can you be in jeopardy if there is no offense stated?

  9. Just Sayin' says:

    meh. charging adultery in the alternative was always a cop out anyway.

  10. Rob M says:

    Also, one could make the argument that a second trial would require proof of an element/elements that the first trial did not (since it/they was never alleged), thus not barred by double jeopardy.

  11. BWMacKenzie says:

    I think I concur with my esteemed former collegue from the Army bench. “Wrongfully” alleged does it for me. If the govt failed to prove the terminal element, I would have zero issue with granting an appropriate motion – even sua sponte.

  12. Mike "No Man" Navarre says:

    Our Army jurist friend–

    I would answer you question and Judge Baker’s, about whether the President has any role in promulgating . . . . elements of offenses under Art 134, with a firm no. It is not the President’s job to specify the elements of offenses, that’s the job of Congress. And in response to Judge Baker’s entreaty, “Without reference to the Manual it is not clear how the President as Commander in Chief might exercise whatever authority he might inherently hold as Commander in Chief in defining the procedure and substance of military justice.” Congress in Art. 36 only gave the President the authority over procedure, not substance. Given that delegation, it would seem Congress reserved to itself the power that it could not delegate, the power to define the substance of military crimes. The fix for such issues, if they even exist (which I doubt), is in Congress. But please not some horribly written product like Art. 120.

  13. Rob Klant says:

    But MNMN, Congress and only Congress has defined the true elements of an Article 134 offense; the President has simply “enumerated” some of the various means by which the Article can be violated. The MCM provisions are nothing more than descriptive, or “procedural” as permitted by Article 36.

  14. Mike "No Man" Navarre says:

    If an additional finding of fact is needed to determine if those enumerated means have been violated then I think the Supreme Court would disagree with you and consider them to be elements. Another wonderful trip down the road to Apprendi-land.

  15. FlapJack says:

    Regarding the President’s authority, you guys should check out the Zachary opinion.

  16. RY says:

    But if the President is adding elements, i.e., providing greater protections/benefits to an accused, and it’s not necessarily inconsistent with Congress intent, then an accused is supposed get the benefit of those additional requirements. With the exception of Art 120, most charges have elements defined by the President, not Congress, and yet CAAF has regularly used/upheld the elements defined by the President (unless inconsistent with how Congress defined the offense).

  17. Mike "No Man" Navarre says:

    RY–CAAF isn’t always correct. And Flapjack, as for US v. Zachary, CAAF isn’t always correct.