Three years before Parker was tried (now that’s a long time ago), the Court of Military Appeals observed: “Discussion of instructions should be conducted on the record, rather than in a conference under R.C.M. 802 . . . .” United States v. Sadler, 29 M.J. 370, 373 n.3 (C.M.A. 1990). Over the intervening years, intermediate military appellate courts have echoed Sadler‘s call.
For example, in 1992, the Army Court observed:
We strongly urge trial judges to give full effect to the guidance of Sadler not only to facilitate appellate review, but also to avoid creating other potential appellate issues such as whether the record of trial is complete. See Article 54, UCMJ, (1982). In this case, if Sadler‘s teaching had been followed, the confusion revealed by the record regarding the mistake of fact instruction may have been eliminated.
And yet in Parker, NMCCA stated, “Discussion of findings and sentencing instructions at an R.C.M. 802 conference outside the presence of the accused is an appropriate method of facilitating the drafting of instructions.” United States v. Parker, __ M.J. __, No. 9501500, slip op. at 40 (N-M. Ct. Crim. App. Aug. 22, 2012). No; no it isn’t. NMCCA cites nothing in support of that pronouncement, which is inconsistent with CMA’s statement in Sadler. CMA trumps NMCCA.
In Curtis, CAAF held that proposed voir dire should be discussed on the record rather than during an 802 conference, but held that any error in discussing such matters — as well as instructions — during an 802 conference is subject to waiver. United States v. Curtis, 44 M.J. 106, 151 (C.A.A.F. 1996), rev’d on other grounds, 46 M.J. 129 (C.A.A.F. 1997) (per curiam). But that wasn’t a repudiation of Sadler‘s guidance; rather, it was a decision about how to preserve an issue for appeal.
I haven’t found any post-Sadler CMA/CAAF decision repudiating its guidance. Absent such a repudiation by CAAF, NMCCA’s language in Parker that is inconsistent with Sadler must yield to guidance from NMCCA’s superior court.