CAAF issues Hayes opinion
CAAF has issued its opinion in United States v. Hayes, No. 11-5003/NA. CAAF reversed NMCCA, ruling for the government in this certified issue case. Chief Judge Baker wrote for the majority. Judge Stucky concurred in the result.
Look at the case header: Did Colonel Puleo and Brian Keller really argue BOTH sides; both for the Appellant and the Appellee? That’s impressive.
Might explain why the government would move to certify the case on the questions they submitted :) Big win for the defense (if not the appellant), in the category of “be careful what you ask for.”
Yes, I agree. I think this was a Pyrrhic victory for the Government. First, CAAF properly kept the door open for this defense. Second, CAAF provided a nice checklist of factors for defense attorneys and judges to successfuly argue duress. Third, this case, even though seeming to give MJs wide latitude to abstain from inquiries, ironically raises the profile of the duress defense among MJs. (I find that MJs tend to inquire into duress pretty frequently anyway). So from the defense bar, to JAG: Thanks! Loves and kisses, Happy Valentine’s Day.
Phyrric victory? Really?
Only a defense counsel.
Still, you gave it the college try eeking three points out of that LOSS.
Lime
Have to add though, Socrates: despite the spin (on your part, not my counterspin), I actually agree with you.
If any of these cases raise the profile of defenses, legal tests, etc, with judges–I think it does all parties a service. So if you’re right, then it’s good for everybody–the accused, the defense bar, etc. Checklists enumerating the pertinent cases–you know as well as I do that those one-in-a-hundred cases that summarize all the pertinent law, and lay it out in a coherent whole, are THE best tool for lawyers to quickly figure out exactly what they need to do to go forward in the case–be they defense counsel, trial counsel, appellate lawyers, or judges.
After all, a good portion of these cases would never get to CAAF if it weren’t for some lack of knowledge at the trial level by some participant in the court-martial.
Lime
You’re right. I’m sure Socrates didn’t really mean “phyrric.” http://www.urbandictionary.com/define.php?term=Phyrric
Even so, I’m confident the defense could not have obtained such an opinion without the government’s assistance. (Compare Olinger, for example, cited in Hayes, avoiding decision on a similar issue; but see Judge Sullivan’s concurrence.)
And, Lime — all joking aside — I agree with you that everyone’s interests are served by having these issues addressed. I’ve known JAGs of the Navy exercise their certification authority for precisely this purpose — even at the urging of the defense — for precisely this purpose, without regard for whatever the outcome may be.
Karma for every one of the “courts-marital,” “trail counsel,” and “affects” I’ve redlined over the past few years.
It is interesting that the government believes that just b/c the kid’s conviction was upheld they “won.” The government should be reminded that certification of cases isn’t about winning or losing. However, it seems whenever the government is stung by a CCA they use JAG certification as an avenue of appeal. It is not meant to be a government appeal (even though JAG certification is easier to accomplish than getting a petition granted by CAAF). They would have won again when the case was sent back. The government seems to count victories as individual cases which is not the appropriate use of certification. While his conviction stands this opinion by CAAF is really not a victory. The law was “reaffirmed” meaning the answer to the certified question was basically “No.” Granted Hayes is still convicted which vindicates the government but also makes clear their use of certification as an individual case appeal.
If Tommy Hayes feels like he a “won” right about now, then maybe I’ll agree with SomeDC. Until then, because the certified questions in this case were answered and some points were made clear, everyone (except the accused) wins. It’s good for appellate defense counsel because they know that a MJ who missed the suicide issue may have screwed up, and they know you don’t need a complete defense to trigger the MJ to ask some questions. This is the purpose of certified cases: get answers to the questions because there’s some confusion and/or the lower court screwed it up. CAAF admits there have been conflicting views on the suicide question and some tricky language regarding raising a “possible defense”, so they went ahead and answered both head-on. Awesome. It’s good for everyone.
But the government uses certification to uphold convictions. It is their stated purpose.
Chief Mike, in theory you are right, everybody wins with clearly articulated reasoning and rules. In other words, CAAF issued a good opinon here. But, in practice, it seems to me most often like certification is really a government appeal, not a genuine attempt to clarify the law. CAAF does that on its own initiative. Could we not come up with a great list of issues that would be great to get advisory opinons from CAAF about, but have not been certified?