How “integral” does an “integral part” of a constitutional guarantee have to be for CAAF to find a contrary provision in the Uniform Code of Military Justice to be unconstitutional? In its opinion in United States v. Easton, No. 12-0053/AR, 71 M.J. 168 (C.A.A.F. Jun. 4, 2012) (CAAFlog case page) (link to slip op.), the court gives an answer that essentially amounts to “more integral than this.”
Article 44(c), UCMJ, states:
A proceeding which, after the introduction of evidence but before a finding, is dismissed or terminated by the convening authority or motion of the prosecution for failure of available evidence or witnesses without any fault of the accused is a trial in the sense of this article.
But Article 44(c) was last amended in 1956, and the Supreme Court decided in 1978 that “the federal rule that jeopardy attaches when the jury is empaneled and sworn is an integral part of the constitutional guarantee against double jeopardy.” Crist v. Bretz, 437 U.S. 28, 38 (1978).
So what happens when a case is terminated during that short time after the “jury is empaneled and sworn” (Crist) but before “the introduction of evidence” (Article 44(c))? “[J]udicial deference [reaches] its apogee,” (Slip op. at 22 N.12) writes Chief Judge Baker, for a near-unanimous court, finding “that Congress appropriately exercised its Article I power . . . when it enacted Article 44(c), UCMJ” (Slip op. at 22).
The appellant, a First Lieutenant in the Army assigned as a physicians assistant, twice missed movement by design, when his unit deployed to Iraq in March 2007. He was quickly charged with two specifications of violation of Article 87, and one specification of conduct unbecoming in violation of Article 133. Arraignment occurred in June and trial was set for July 2007. In the interim, the parties went to Iraq to take videotaped depositions of two deployed witnesses who were deemed unavailable for trial. However, after returning they discovered that the videotapes contained no video and incomprehensible audio. Despite both sides knowing this, the accused entered pleas, made forum election (officer members), the members were sworn, the court-martial was assembled, and voir dire of the members was conducted. The court then recessed for two days. During that recess, the convening authority withdrew and dismissed the charges without prejudice, and without written explanation.
In March 2008 the appellant was again charged with two specifications of missing movement by design in violation of Article 87, as well as one specification of disobeying a lawful order and one specification of adultery in violation of Articles 90 and 134. He made motions for dismissal due to improper withdrawal and double jeopardy, both of which were denied. He was then convicted, by a military judge sitting as a general court-martial, of the two violations of Article 87, and sentenced to confinement for 18 months and a dismissal. The convening authority reduced the confinement to ten months in clemency.
The Army CCA, in a published opinion, found that there was “a manifest necessity for the convening authority’s actions,” based upon the unusable deposition recordings. United States v. Easton, 70 M.J. 507, 512 (A. Ct. Crim. App., 2011). That court wrote:
The convening authority’s broad discretion must temper our analysis in this case. No evidence had been introduced at appellant’s first court-martial, and appellant’s unit, which included the witnesses against him, was engaged in combat in Iraq. Instead of pursuing withdrawal of these witnesses from Iraq, the convening authority withdrew the charges from the court-martial. Absent evidence of bad faith, we will not second-guess the convening authority’s tactical decision to withdraw charges here, especially when buttressed by the record of trial and the military judge’s thorough findings of fact.
CAAF granted review of the following issue:
Whether the Army Court erred in holding the appellant’s trial did not violate his constitutional right against double jeopardy because jeopardy did not attach and even if it did, manifest necessity justified the convening authority’s decision to withdraw charges.
Chief Judge Baker, writing for all but Judge Erdmann, found that the Army CCA erred in finding that there was manifest necessity to withdraw the charges, but found Article 44(c) constitutional as applied to the appellant, and affirmed the findings. Judge Erdmann concurred in the finding of no manifest necessity, but dissented from the finding that Article 44(c) is constitutional as applied.
The court’s analysis begins with the ACCA’s assertion “that ‘manifest necessity’ existed to withdraw the charges since it is ‘implicit’ that ‘operational considerations drove the convening authority’s decision to terminate appellant’s first court-martial,’ and there is ‘no evidence’ that the convening authority withdrew the charges in bad faith.” Slip op. at 11. Dismissing this, the Chief Judge writes that, “Put simply, the Government was responsible for taking and providing the depositions, and it failed to successfully complete this task. Failing to provide operable video tapes is not a military exigency.” Slip op. at 15. Moreover, the opinion notes that the convening authority did not provide a written justification for the withdrawal, and the trial judge did not address manifest necessity in his ruling (at the second trial).
Finding no manifest necessity, the court then turns to Article 44(c). Noting that “constitutional rights identified by the Supreme Court generally apply to members of the military” (Slip op. at 16), and “that there is no dispute that the protection against double jeopardy applies in courts-martial” (Slip op. at 17), the majority nevertheless finds that “the reason for holding that jeopardy attaches when the jury is empaneled and sworn lies in the need to protect the interest of an accused in retaining a chosen jury. The Sixth Amendment right to a jury trial does not apply to courts-martial and, therefore, protecting the interest of an accused in retaining a chosen military ‘jury’ does not directly apply” (Slip op. at 18 (internal citation omitted)). The court also identifies something of a parade of horribles that would result from strict application of the Supreme Court’s rule from Crist to courts-martial: It would imperil the excusing of members for “good cause” and detailing of new members under Article 29 (Slip op. at 18-19), it would jeopardize the use of special courts-martial without a military judge under Article 16 (Slip op. at 20), and it would call into question rules for courts-martial promulgated by the President, R.C.M. 604(b) in particular (Slip op. at 20).
And so the majority does not “mechanically apply the holding in Crist to the military context,” and instead finds that Congress “appropriately exercised its Article I power” when it enacted the rule in Article 44(c) that differs from the constitutional rule identified by the Supreme Court in Crist. Slip op. at 21-22.
Fortunately, “adequate safeguards exist to protect an accused’s right not to be tried without his consent a second time for the same offense.” Slip op. at 22. The majority does not detail what those safeguards are – and clearly they do not include holding the prosecution accountable for its failure to, for example, preserve evidence – but we can be assured that “if the convening authority withdraws charges ‘for an improper reason,’ they cannot be re-referred for trial.” Slip op. at 22. That’s a relief. Not for LT Easton, perhaps, but for the rest of us for sure.
But Judge Erdmann is not so sure. His partial dissent begins with quotes from a case found in the first volume of the Military Justice reporter: Courtney v. Williams, 1 M.J. 267, 270 (C.M.A. 1976). Courtney involved a challenge to pretrial confinement, and resulted in the rule that “a neutral and detached magistrate . . . must decide if a person could be detained and if he should be detained.” 1 M.J. at 271. But Courtney also restated an older principle that the rights of individual servicemembers are “conditioned to meet [only] certain overriding demands of discipline and duty.” Id. at 270. Judge Erdmann then seeks out the “overriding demands” that compel a different double jeopardy rule in this case from the one outlined by the Supreme Court in Crist, and is disappointed with what he finds.
Article 44(c), however, was not a part of the originally proposed UCMJ and was adopted during the congressional hearings in response to the Supreme Court decision in Wade v. Hunter, 336 U.S. 684 (1949). . . . Following the Wade decision there was concern that the proposed Article 44 would continue to allow the convening authority to terminate an ongoing trial because the government was not fully prepared. The congressional response to this concern was the adoption of Article 44(c), which was designed to prevent a second prosecution where a court-martial had been convened and evidence had been received, but is later terminated because the government was not fully prepared.
Easton, Diss. op. at 6-7. As a side note, I wonder if the government”s failure to record a video (something my 3-year old manages to do pretty decently) counts as being “not fully prepared.” But Judge Erdmann sees a more fundamental problem:
Article 44(c) was clearly not adopted to address any issues of discipline or duty, but was adopted for the increased protection of servicemembers.
Diss op. at 9. A far cry from the majority’s reliance on merely “adequate safeguards.” Yet Judge Erdmann is the lone dissenting voice.
There’s a very short list of procedural or substantive criminal safeguards that are greater for civilians than for servicemembers. Double jeopardy has officially joined that list.
• ACCA’s published opinion
• Appellant’s brief
• Appellee’s (government) brief
• Appellant’s reply brief
• Oral argument audio
• Blog post: Argument recap
• CAAF opinion
• Blog post: Opinion analysis