AFCCA today issued another published opinion. It isn’t yet on the court’s website, so we’ve posted it here. United States v. Barnett, __ M.J. __, No. ACM 37578 (A.F. Ct. Crim. App. Nov. 14, 2011). It’s an interesting decision dealing with the instructions that a military judge should provide to members after the military judge has awarded confinement credit.
SrA Barnett was a recruiter who found himself in legal trouble. When he was implicated in misconduct, he was pulled from recruiting duty and then spent 16 months on Luke Air Force Base’s “Thunder Pride” team. The Air Force Court’s opinion explains that the team “performs a variety of base details,” no doubt menial in nature. The defense submitted a motion at trial arguing that SrA Barnett had been subjected to illegal pretrial punishment. The military judge disagreed, but expressed concern about the length of SrA Barnett’s service on the Thunder Pride team. According to a base instruction, with certain exceptions, Thunder Pride duty was supposed to be limited to 60 days. The military judge was also concerned that required legal coordination hadn’t occurred after SrA Barnett was continued on the team past 60 days. And he found that the command hadn’t sufficiently sought alternative duty for SrA Barnett. As a result, the military judge awarded 100 days of administrative confinement credit.
During its presentencing case, the defense presented evidence concerning SrA Barnett’s extended time on the Thunder Pride team. When he instructed the members concerning sentencing, the military judge informed the members that he had awarded confinement credit:
In determining an appropriate sentence in this case, you should consider that the accused has been granted 100 days of confinement credit. If you adjudge confinement as part of your sentence, these days will be credited against any sentence to confinement you may adjudge. This credit will be given by the authorities at the correctional facility where the accused is sent to serve his confinement and will be given on a day-for-day basis.
During sentencing deliberations, the members returned and asked the military judge questions about the 100 days of confinement credit. After some dialogue between the members and military judge, one of the members asked: “[J]ust for the example, if we consider 300 days as appropriate confinement but we know the hundred days credit is there but we think that the 300 days confinement should be actual confinement so we bump it up to 400 days because we know we’re going to subtract a hundred days; is that legal for us to do?” The military judge responded:
What I can instruct you in this regard is that you should determine a sentence that you believe is appropriate for this accused for the offenses that he’s been found guilty of, considering all of the evidence that you’ve been presented in the case. You’ve been provided the fact or circumstance that, if you adjudge confinement, then he will have 100 days of credit toward any period of confinement that is adjudged by the court.
During a follow-on Article 39(a) session, the defense asked the military judge to instruct the members that they are not allowed to determine an appropriate length of confinement and then add 100 days. The military judge declined to do so, instead reiterating to the members that their “duty is to adjudge an appropriate sentence for this accused that yhou regard as fair and just when it is imposed and not one whose fairness depends upon actions that others may or may not take in this case.” The members ultimately adjudged a sentence that included 8 months of confinement, a BCD, and reduction to E-1.
The Air Force Court upheld the military judge’s approach. The court held that when the defense presented evidence about SrA Bennett’s time in Thunder Pride team purgatory to the members as a matter in mitigation, a consequence is that the military judge should instruct the members that he had received confinement credit as a result. The Air Force Court said that the defense serves as the “gatekeeper” for evidence concerning the cause of confinement credit. If the defense chooses to open the gate, a consequence is that the military judge will instruct concerning the confinement credit. On the other hand, the defense can leave the gate shut, not discuss the cause of the credit, and not have the members instructed concerning the credit. The court analogized the situation to instances where the defense reveals to the members that the accused was subjected to nonjudicial punishment for an offense for which the accused is being punished at court-martial. In such a case, the military judge must instruct the members concerning the credit the accused will receive as a result of the nonjudicial punishment.
The Air Force Court reasoned: “In this case, where the appellant chose to introduce evidence of the 16 months he spent assigned to the ‘Thunder Pride’ team as evidence in mitigation, we find the military judge had a duty to instruct the members on the administrative credit awarded to they may consider that information during their deliberation on sentence.” The court added that the military judge’s instruction “did not expressly or by inference invite the members to award extra confinement to compensate for the administrative confinement credit awarded by the military judge pursuant to the Article 13, UCMJ, motion.” The court concluded, “We find no error in the sentencing instructions given.”
Judge Saragosa wrote for a unanimous panel.
The opinion seems to skirt what I see as the main issue in the case. It’s fine that the military judge instructed the members concerning the confinement credit. The idea is that the defense shouldn’t get two bites at the apple — convincing the military judge to reduce the sentence and then convincing members to reduce the sentence further on the same basis. But that fairness concept should go both ways — the members canceling out the confinement credit is just as unfair as the defense seeking double credit. Thus, the instruction that the defense requested — that the members be told they can’t determine an appropriate length of confinement and then tack on 100 days — seems correct. But the military judge refused to give that instruction and nothing in the instructions as recounted by the Air Force Court conveyed to the members that they weren’t allowed to try to cancel out the confinement credit — or a portion of it — awarded by the military judge. Perhaps CAAF will choose to speak to that issue.