Where all think alike, no one thinks very much.
Although journalist and author Walter Lippmann would have appreciated a splintered NMCCA’s unpublished opinion in United States v. Caldwell, I’m not surprised to see that the court quickly decided on its own motion to reconsider the case en banc.
Private Lazzaric Caldwell, a Marine stationed in Japan and troubled by a host of personal and discipline difficulties, attempted suicide by cutting his wrists. He had just learned that his commanding officer had ordered him into pretrial confinement.
At court-martial, Caldwell pleaded guilty to order violations, larceny, and self injury. He pleaded not guilty but was convicted of another specification of an order violation alleging that he used spice. On appeal, Caldwell raised five assignments of error, among them an assertion that the military judge should have ordered a R.C.M. 706 examination, that the guilty plea to larceny was improvident, and that public policy ought to prohibit conviction for self injury in the case of suicide attempts. If you’re keeping score at home, that’s three charges, six specifications (it would appear), and five assignments of error. Now go sharpen your pencil and we’ll add the panel of three CCA judges.
For our purposes, it’s easiest to deal with Senior Judge Maksym’s dissenting opinion first. Senior Judge Maksym concluded that the trial judge should have ordered a 706 board. Having reached that conclusion, he was unable to affirm any findings or sentence.
That leaves Senior Judge Booker and Judge Beal to deal with the remaining assignments of error, and when one of them found merit in one, that vote, combined with Senior Judge Maksym’s 706 vote, tipped the balance on the charge.
As Judge Beal would have affirmed all the findings and sentence, the swing vote proved to be Senior Judge Booker’s. He agreed with the appellant that his role in the larceny of a belt from a retail store–which seemed to essentially amout to a wink and a nod to his girlfriend as she stole the belt–didn’t amount to larceny. Regarding the self injury charged under Article 134, Senior Judge Booker was unconvinced that the act of self injury in question was sufficently prejudicial to good order and discipline or that it had a tendency to discredit the service.
Because Senior Judge Booker was confident that the military judge would have at least imposed a bad-conduct discharge for the remaining offenses (Caldwell had a prior summary court-martial in his record) the court affirmed the discharge. The court set aside a 180-day sentence to confinement. The day after the date of the opinion NMCCA on its own motion ordered reconsideration en banc.