CAAF has granted review of the following issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE INFORMED THE MEMBERS OF APPELLANT’S ILLEGAL PRETRIAL PUNISHMENT CREDIT AND THEN FAILED TO INSTRUCT THE MEMBERS BASED ON A SUBMITTED QUESTION THAT THEY WERE NOT ALLOWED TO NULLIFY SOME OR ALL OF THAT CREDIT BY INCREASING THE SENTENCE.

United States v. Barnett, __ M.J. __, No. 12-0251/AF (C.A.A.F. Feb. 15, 2012).

AFCCA’s decision in the case is published at 70 M.J. 568.  We discussed that opinion here.

20 Responses to “CAAF to consider what a military judge should do when the members ask if they can award extra confinement to cancel out confinement credit”

  1. Cap'n Crunch says:

    Told you — this is coming back.  Or at least some of the confinement is going to be set aside.

  2. stewie says:

    One hopes.

  3. Socrates says:

    Does this case present a logical cunundrum?  That is, the mathamatical calculation must go one way or the other: +100 days for the Government, or -100 days for the Appellant.  The arguments for both sides are sound, but seem to cancel out, leaving no good choice. 

    Government: Its wrong to give the Appellant a DOUBLE benefit, 100 days of good service, as mitigation in sentencing – PLUS 100 days of confinement credit for the quasi-punishment of his exended time doing menial labor.

    Appellant: Its wrong to cancel out the 100 days of confinement credit credit for the quasi-punishment of his exended time doing menial labor by TACKING ON an extra 100 days to what his legitimate sentence SHOULD be.  This totally voids the confinement credit and undermines its purposes.

    Aren’t BOTH arguments EQUALLY valid?  (That is, neither proposition is wrong) 

    So I think this case does not turn on a legal argument, but comes down instead to a value judgment: which underlying value is greater:

    (a) maintaining the material prejudice standard, such that accuseds can’t get a DOUBLE benefit on two different forms of mitigation (1) “good soldier” mitigation (for the good work), and (2) “bad government” mitigation (for the quasi-punishment), OR

    (b) ensuring the integrity of member deliberations and sentencing, so that members do not engage in prohibited practices that essentially substitute detached mathematics for critical judgment.  (Example: the prohibited practice of members “averaging” out a sentence – “You say 4 years, I say 2 years, lets compromise with 3 years.”  Such methods prematurely cut-off careful deliberations.)

  4. ksf says:

    So, I have a client who is a pot smoking recruiter who likes to proposition his recruits for sexual favors.  This guy gets convicted of the crimes for which he is accused after contesting part of it in front of the panel, then I’m going to allow him to get on the stand and whine about having to do menial labor in “Thunder Pride” as mitigation?  The panel clearly does not like him, and the ones who just got back from deployment while the accused was smoking pot and hitting on women aren’t going to have sympathy for the punishment he endured while in garrison.  I would add 100 days to his sentence for complaining about the fact that the Air Force wouldn’t let him perform his MOS because he is a POT SMOKING RECRUITER.  It’s not like he wasn’t getting paid.
    So, of course they are going to want to tack on the amount of credit to his adjudged sentence!  I’m surprised the panel president opened the Court back up and asked the question instead of just doing it.  Shouldn’t defense counsel as a matter of policy not tell the panel about the consequences that resulted in the credit and hope that the sentence is less than the amount credited? 

  5. RY says:

    I’m not sure if it’s clear from the record but the “thunder pride” was for 18 months.  The MJ pulled 100 days from his nether region based on a local reg that required other duties after 90 days.  It seems to me that the fact the MJ found some of the behavior to be unlawful pre-trial punishment does not foreclose consideration of the other 14 months of similar behavior in deciding whether he warrants less of a sentence, just as members can consider matters which a MJ did not find to constitute Art 13 credit

  6. k fischer says:

    RY,

    I understand that and you understand that and a lot of other lawyers at the hallowed halls of Charlottesville would probably agree that it is an option to present the 14 months of “Thunder Pride” duty as mitigation, but do you really think a panel full of nonlawyers would cut the recruiter a break?  Think about it as a nonlawwyer sitting on a panel who just convicted the guy of some pretty bad offenses for a recruiter.

    SoonerGrunt should weigh in here on how he would feel if after coming in from a 12 month rotation from Iraq that he had to listen to a recruiter who was living it up at the Hotel California complain about being in a unit that performed menial tasks. 

    It sounds like a major trial strategy flaw by Defense Counsel, akin to a Trial Counsel asking a witness about the victim’s sexual predisposition for being a prude after successfully exluding her past employment as a stripper from the panel under 412.

  7. Hines says:

    The benchbook only mentions administartive credit: “In determining an appropriate sentence in this case, you should consider that the accused has spent ___days in pretrial confinement. If you adjudge confinement as part of your sentence, the days the accused spent in pretrial confinement 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.”  Credit for Art. 13 should never be mentioned for the reasons other posters have stated. Day for day credit for time already spent in the brig is logical and appeals to everyone’s common sense.  When you inform the members of judically ordered credit, then it opens everything up to speculation and invites the members to question the judge’s determination.  I have never heard of a judge granting Art 13 credit and informing the members.  It’s something that should be resreved for the post trial process, etc. I think CAAF is going to bounce this one.      

  8. Bill C says:

    Brother Kyle:  Please tell me that is a true story. 

  9. stewie says:

    No, both are not equally valid. One argues that you should take it away from the accused. The other side has said it’s mighty fine if you want to as judge instruct the panel that he has already received administrative credit for his A13 violation, so you may give him additional or no credit for that violation…without telling them exactly what that credit was.
    Thus, odds are the panel will either give him credit, or will simply ignore it and focus on giving him or her what they think is deserved for the actual offense.

  10. soonergrunt says:

    @k fischer,
    My understanding of this case is that the accused was convicted of various crimes by the members panel, and he had credit granted by the Judge for PTC that amounted to unlawful pre-trial punishment.  I also understand that the members elected to sentence the accused to an extra 100 days after they were made aware of the fact that his credit equaled 100 days.
    While I can see where the members were coming from, I guess for my part, I think they should never have been informed that he had confinement credit.  If they were inclined to give him one year for his crimes, they should have given him one year.  The fact that he got credit for 100 days to start with seems to me to be irrelevant.  He serves the other 265 days and that makes the year.  If they honestly thought, in the interests of justice, that his sentence demanded one year and 100 days, that’s one thing, but if they thought that his sentence demanded one year and they want to tack on an extra 100 days because they don’t like the idea of him getting credit–well that seems to me to be wrong-headed.  And if I were sitting on the panel I’d probably want to throw the book at the guy, particularly if I’d just gotten back from a combat tour, but that wouldn’t make it right, and that’s why we have Judges.
    To me, the fact that the Judge awarded the accused credit for unlawful PTC conditions shouldn’t be held against the accused, and it looks like that’s what the panel did. Otherwise, what’s the purpose of the regulations that describe lawful PTC conditions in the first place?  I’m not a Judge, obviously, but I’d reverse and award credit to the accused.

  11. Charlie Gittins says:

    I am with soonergrunt.  Who was the military judge?
     

  12. Cap'n Crunch says:

    @Charlie:  Joseph S. Kiefer
     

  13. Socrates says:

    Stewie, I am confident that you understand your position.  I am equally confident that I don’t.  There is a disjunction in your logic.  For one side, you list one proposition.  For the other side, I count up to four: (1) judge can instruct of credit; (2) members may give additional credit; (3) members may give no credit; (4) judge doesn’t have quantify the credit (# of days).  Well, then, yes, I guess both “propsitions” can’t be equally valid when you render such a construction.

    Can you frame the choice a little more clearly so I can understand what you mean? 

    And I don’t understand your final point at all: “Odds are” either (a) credit, or (b) no credit (ignore it).  Doesn’t that cover the whole range of possiblities?  If so, you are right again: those “odds” we be about 100%.

    No snark – I’m just missing something in your argument.  My fault.  Since I feel silly in missing it – can you just come out and tell me what side you think has the clearly superior argument.  Thanks.    

    (Totally agree with what K Fischer and others say about the common sense aspect of this.  I’m just examining the logic and the legal principles)  

  14. stewie says:

    Here is what I understand happened.
    1. The MJ heard an A13 motion and gave credit of 100 days.
    2. The accused in his unsworn mentioned the A13 issue, ostensibly to get more credit for it.
    3. To forestall 2, the MJ not only told the panel that he’d already received credit for it, but told them exactly what that credit was to be.
    4. The panel appears to have then basically canceled out that credit by giving the accused 100 extra days of confinement (or at least that is the concern) thus rendering the credit meaningless.
     
    My point is that:
    a. Simply mentioning the A13 issue should not possibly result in the accused actually losing credit already given.
    b. To forestall the concern that the accused might double-dip (although still not sure why that’s a concern per se), the MJ could have simply informed the panel that this was something that the accused has already received credit for, without telling the panel what that credit was.
    Thus, the panel is left knowing that the A13 issue was taken care of, and can either decide to take something off the sentence anyways, or, since they have no clue what the credit was would most likely just continue on sentencing the accused more or less ignoring the A13 issue one way or the other.
    The accused gets his adjudged sentence credit, the panel focuses primarily on the offense committed and not trying to balance out the sentence credit.
    All nice and proper. The alternative is to say that if the panel wants to overrule the MJ on sentence credit, then they can, which then raises the question of what’s the point of the MJ giving credit in a panel case in the first place?

  15. Dwight Sullivan says:

    Here’s my take on this (with the disclosure that this case is being litigated by my office, though I’m not a counsel in the case myself).

    I have no problem with truth in sentencing concepts.  The AFCCA opinion is based on the premise that the accused should be entitled to one — and only one — bite at the apple for credit.  If the MJ awards credit, the defense shouldn’t be allowed to trick the members into giving credit too.  I’m good with that. 

    But what happened here is that the military judge ruled that the accused was entitled to one bite at the apple.  The accused took his bite and then tried to take a second bite as well.  The judge prevented the second bite by saying, “Hey, members, he’s only entitled to one bite, and I already let him take it.”  The members replied, “Hey, we don’t like him getting one full bite.  Can we make him spit part of it out?”  The defense said the military judge should have replied, “No, I’ve ruled he’s entitled to that bite.”  But the judge refused to tell the members that.  Meaning that the accused almost certainly ended up with less than the one full bite to which he was entitled. 

    Had the military judge told the members what he should have — you’re not allowed to try to cancel out the credit I awarded because you thought it was too much for the pretrial conditions to which he was subjected — no error would have occurred.  In my view, the judge erred by failing to tell the members that, as the defense requested.

  16. Charlie Gittins says:

    I concur with Dwight.  As usual, he says it nicely, succinctly and like a law professor.  if you get f’d by the G on conditions of confinement, the members should not be able to offset the penalty for the G.  Otherwise, there simply is not point to the MJ granting the credit.  CAAF needs to step up and put their big boy pants on.

  17. Socrates says:

    Stewie – got it, thanks. I missed the subtlety of you being ok with the MJ generally informing the members of credit without quantifying exactly how much. This would seem to be the “middle position.” It’s almost like the MJ would be saying, “don’t worry about it members, just sentence the guy.” This does sidestep the discussion about “double-credit,” or perhaps makes its resolution a little muddled or cloudy, though.

    A more careful look at the 100 days may reveal that there is no “double credit” at all. This is because he could have been a lazy, bad worker, and still received the credit. The sentence mitigation, however, flows from the fact he did a GOOD job.

    Dwight is to military law what Isaac Newton is to physics – with both making great use of apples.

  18. Cap'n Crunch says:

    What was actually instructed:
    MJ:  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.
    After closing the court for deliberations, the members had the following questions:
    PRES []: . . . In your instructions that you gave us, you talked about a hundred days confinement credit. The question is, and we can expound if we need to, can we, as the members, differentiate between a hundred days of confinement credit for Thunder Pride versus a hundred days of actual confinement?
    MEM: So legally, is it okay for us to consider that hundred days of credit less than what we would consider actual confinement? That’s the question that’s come up in our discussions. And maybe for ease of understanding and, please, this is just 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 that?

    What I think should have been instructed:
    MJ: The accused has brought up, in mitigation, the fact that he was placed on the Thunder Pride Team for a period of 18 months.  I am instructing you that I have considered this fact, in complying with the law, and have awarded some amount of sentencing credit.  You are not permitted to account for this fact or to second guess my ruling.  Nevertheless, because the accused raised this issue in terms of mitigation, I am instructing you that he has already been given appropriate credit for it.  It is your obligation to determine 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.  Your duty is to adjudge an appropriate sentence for this accused that you 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. These instructions must not be interpreted as indicating an opinion as to the sentence which should be adjudged for you alone are responsible for determining an appropriate sentence in this case. In arriving at your determination, you should select the sentence which will best serve the ends of good order and discipline, the needs of the accused, and the welfare of society.

  19. stewie says:

    I disagree with one thing, I don’t the judge should use the term appropriate credit, the panel is always free to give it more weight than the judge if they’d like, just not less weight. You can always give more to an accused.

  20. WestCoastDefense says:

    I agree with Capn Crunch and stewie.  I think Crunch’s instructions would have been great if it had been “some” credit rather than “appropriate” credit or even just taken out the modifier of credit all together.