Here’s a link to NMCCA’s unpublished opinion  in United States v. Salyer, No. NMCCA 201200145 (N-M. Ct. Crim. App. Oct. 23, 2012). Judge Harris wrote for a unanimous panel.

First, a disclosure.  While NMCCA uses initials rather than names for most of the players involved, the military judge in question was LtCol Michael D. Mori, who worked in my office during the two years that I was chief defense counsel of the military commission system.  I know him well, and that almost certainly influences my reaction to the case.

Cpl Salyer was tried at a contested court-martial for wrongful possession of child pornography based solely on a service discrediting theory.  Judge Mori raised the issue of whether, for Article 134 clause 2 purposes, the term “minor” meant someone under 18 or someone under 16.  He ultimately ruled that he would instruct the members that “minor” for purposes of Article 134 clause 2 was someone under the age of 16, applying the military justice system’s age of consent to sexual intercourse.  After he provided that instruction to the members, after opening statements had been given, and after the government had presented the first day of its case, the trial counsel asked to voir dire Judge Mori about his wife’s age when the two were married 10 years earlier.  He indicated that she was 17 when they wed.  The government then offered an appellate exhibit — an excerpt from Judge Mori’s service record — establishing that same fact.  (Query:  how did the trial counsel come to have a copy of that document?  NMCCA doesn’t address that question.)  The government then moved to disqualify Judge Mori for implied bias.  The government argued that his ruling on the definition of minor for Article 134 clause 2 purposes was influenced by the fact that his wife was younger than 18 when they married.  Judge Mori took the issue under advisement and then recessed the court-martial for the night.

The next day, Judge Mori disclosed that he had had a conversation with the Circuit Judge, CAPT David Berger — his reporting senior — the previous day during the lunch recess.  CAPT Berger said he had received a call from LtCol “JAM,” the SJA for Marine Corps Base Hawaii and the Law Center OIC.  In his capacity as Law Center OIC, LtCol JAM was the trial counsel’s supervisor.  (The Commander of Marine Corps Base Hawaii wasn’t the CA, so LtCol JAM wasn’t the SJA in the case.)  LtCol JAM discussed Judge Mori’s ruling with CAPT Berger and told him that the government was going to move to disqualify Judge Mori.  Judge Mori stated on the record that he thought CAPT Berger was raising a concern about his performance.  Judge Mori also suggested the possibility that the government’s actions constituted unlawful command influence.  Following a recess, Judge Mori recused himself from further participation in the case.  Judge Richardson from Camp Pendleton replaced him.

Before trial on the merits resumed, the defense moved to dismiss the charges due to actual and apparent unlawful command influence.  Judge Richardson ruled that there was no actual command influence, but that the telephone call from LtCol JAM to CAPT Berger caused apparent command influence.  “As a remedy, Col Richardson barred LtCol JAM from all participation in the proceedings, and refused to reconsider any of LtCol Mori’s rulings that were favorable to the defense.  The trial then resumed, proceeding to verdict and sentencing with Col Richardson as the military judge.”

NMCCA noted CAAF case law dealing with using supervisory judges as a conduit for command complaints against a military judge and condemning a Marine Corps command’s attempts to suggest that a military judge was involved in a same-sex dating relationship with a counsel who appeared before her, resulting in the military judge’s recusal.  See United States v. Mabe, 33 M.J. 200 (C.M.A. 1991); United States v. Lewis, 63 M.J. 405 (C.A.A.F. 2006).  But NMCCA held  “that there was no  actual unlawful command influence, and any appearance of unlawful command influence was adequately remedied by the military judge.”

NMCCA adopted Judge Richardson’s finding of fact that LtCol JAM’s purpose for calling CAPT Berger was to give him a heads up that he might need to detail a replacement judge to the case.  LtCol JAM didn’t complain to CAPT Berger about any of Judge Mori’s rulings and didn’t try to get CAPT Berger to influence Judge Mori’s rulings.  Judge Richardson also found that CAPT Berger had done nothing improper and didn’t try to influence Judge Mori during their phone conversation.

NMCCA stated, “We agree with Col Richardson that this situation does amount to apparent unlawful command influence.  Notwithstanding the innocent purpose behind the call, the Government’s actions created the appearance that the phone call was the sort of ‘conduit for complaints’ against a military judge prohibited by the UCMJ.”  As previously noted, NMCCA held that Judge Richardson’s remedial measures were sufficient to cure this apparent command influence.

NMCCA concluded that the government’s voir dire of Judge Mori about his wife’s age when they married created neither actual nor apparent command influence.  NMCCA emphasized that LtCol JAM wasn’t the SJA in the case, and was thus not acting on behalf of the convening authority.

NMCCA then stated,”Second, in Lewis there was no good faith basis to inquire into the military judge’s personal life.  Here the facts are undisputed that LtCol MDM did marry a 17-year-old woman.  The Government had verified this fact before commencing its voir dire into how that fact might have influenced LtCol MDM’s pretrial ruling on the definition of a minor.  Col Richardson found this to be a good faith basis for questioning and we agree.”

That part of the opinion raises a question in my mind:  how did the Law Center OIC and the TC get access to Judge Mori’s personnel record?  There might be a satisfactory answer to that question.  If so, NMCCA doesn’t share it with us.  The image of prosecutors somehow gaining access to Judge Mori’s personnel record and trolling through it for evidence with which to seek his disqualification is troubling to me.  In the event that CAAF grants review of this caes, perhaps that point will be further developed.

NMCCA also noted that, unlike Lewis, this was a members case before and after the military jude’s recusal.  NMCCA also indicated that unlike in Lewis, there was no suggestion in this case that the military judge had done anything wrong.  Rather, NMCCA characterized the situation as raising a question of whether the military judge’s ruling was influenced by his “life experience.”   NMCCA explained, “Because LtCol MDM had married a 17-year-old woman, it is a reasonable inference that his view on the legal definition of a ‘minor’ might be colored by his personal history.”  Members of the Navy-Marine Corps Trial Judiciary, stand by for a lot more intrusive voir dire citing that language as justification.

45 Responses to “NMCCA judicial voir dire/UCI opinion”

  1. Casual Reader says:

    Unbelievable.  Ignoring the blatant privacy violations (how do you get a trial judge’s personal information), the actions are clearly meant to silence, intimidate and/or disqualify a theoretically neutral trial judge.  When one becomes a judge, life experience is part of the package.  I guess diversity means we must just look different, not think independently.
    Above all, prosecutors, at least in my state, are supposed to do justice.  That type of conduct is unacceptable.

  2. Cloudesley Shovell says:

    What next, income tax records?  Unsealing divorce records?  Trolling through the judge’s .mil email account?  What a colossal violation of the Privacy Act.  Certainly the Judge Advocate General will order an immediate investigation not only into how trial counsel happened to come into the possession of Privacy Act material from the Military Judge’s service record, but will also direct an immediate investigation into possible violations of JAGINST 5803.1D (the ethics rules).  Just for starters, I see grounds for an investigation into whether Rule 4.4 was violated, as it condemns using methods of obtaining evidence that violate the legal rights of another person.
    I also see grounds for a Privacy Act lawsuit by both LtCol Mori and his wife.  
    If the trial counsel and government in this case allege that this intrusion into LtCol Mori’s service record is not a Privacy Act violation, than certainly the government will not object, in any future case, to defense discovery demands for the complete service records of every government witness, counsel, SJA, convening authority, and military appellate judge in every case to ensure that the “life experiences” of said persons do not raise any impartiality or command influence issues.

  3. OPLAW-LCDR says:

    Colonel, I don’t think your views have been colored by your personal knowledge; in fact, I think you have restrained it. I too know some of the players personally, and this episode disgusts me. I can’t for the life of me figure out, if there is a logical reason why the TC had the judge’s personnel file, NMCCA didn’t give it, if for no other reason than to present CS’ response – which I fully support. It smells like they are trying to sweep that under the rug. Was there any insight in the briers or ROT?

     To borrow a USN/USMC colloquialism: someone needs shot in the face for this one. This strikes me as UCMJ charges for 133 and 134 for the TC, SJA, and anyone else who had his fingerprints on this. The politics of personal destruction have made it to the UCMJ.

    When I was trying cases, even suggesting going after a MJ like this would have been suppressed ruthlessly by the STC, CO, SJA, etc. Here’s another question: WHERE WAS THE LEADERSHIP? The “fail”s here go far beyond the CM itself.  

  4. Just Sayin' says:

    The leadership was at an all hands diversity training.

  5. Phil Cave says:

    I agree with the MJ’s ruling.  I have been litigating that particular issue of age and CP for some years, albeit without positive result.  Congratulations to the Marine defense counsel who made that happen!!!

    Like Dwight My Liege HS, I am likely biased, Dan is good people. But, Dan I think you were wrong, you should not have recused yourself.  You should have called the SJA/OIC as a witness on the motion and got him/her to tell you how they accessed your PA information, what other PA information was accessed, and on what authority.  Certainly there is some authority as to witnesses, but does it extend to a HIPAA or PA exception for the judiciary.  If they establish authority to be able to access a military judge’s personnel records, fine — move on.  If they can’t establish authority, then remove them from the case and report them to TJAG just as NMCCA did for Earle Partington.  Not sure if that would fall within the contempt power.  Certainly I do agree we should be watching how TJAG deals with prosecutors and this issue, this may not be a one time rodeo.

    And, excuse me, but just why is the SJA/OIC calling the judge’s boss to “give a heads up” anyway?  I cannot find an “innocent purpose” for this phone call –  sorry.  There is not any possible reason for the SJA/OIC during an ongoing case to be back-dooring the MJ (at least that’s the reading I get from the case).  And it appears to have been done ex-parte.  Did the SJA/OIC and TC tell the DC what they were about to do and invite them to the conversation.  Or, did the SJA/OIC say to the MJ, sir I’m calling your boss because we are going to challenge you.  What exactly did the SJA/OIC hope to achieve with this heads up, that couldn’t be done by the TC in 802 discussions?  I do not get what was going on here.  Is this something Marine SJAs now do on a regular basis.  Call the CMJ if there’s a problem or delay in an ongoing case and go around the MJ.  Did Col Richardson address that. Come on, does anyone not think that it would be hoped the CMJ would “discuss” the reason for the challenge.  How does a member of the public, the accused, or any other potential accused interpret that?  Are there other inappropriate SJA/CMJ calls going on?  I guess a standard voir dire question in Marine cases would ask if the MJ is aware of any calls by the SJA to their boss.

    Interesting, what was the CMJs reaction to the call?  He didn’t call Dan immediately.

    “””The next morning, LtCol MDM disclosed a telephone conversation he had with the Circuit Military Judge, Captain (CAPT) DB, during the lunch break on the preceding day.  LtCol MDM had called CAPT DB about another matter, but CAPT DB then relayed that he had received a call earlier from LtCol JAM[.]”””
    Is it so common in the Navy/Marine Corps for the SJA to be calling the MJ’s boss in the middle of an ongoing trial to discuss the trial and judge challenges behind the judges back that the CMJ did not himself ask the SJA/OIC and put the SJA/OIC on notice that the call was certainly unusual and inappropriate.

  6. RY says:

    I agree with the discussion about privacy act but I think the underlying issue is a valid basis for questioning the MJ.  Put aside the personnel records and pretend TC heard about the marriage to a 17yo female.  Wouldn’t that be a valid basis for voir diring the judge?  I’m not saying that is a basis for recusal.  In this case, I agree “minor” should be under 16 as that is what “minor” refers to in the UCMJ.  That’s another area where judges have just been blindly following what “we’ve always done before” without really thinking about it (every reference in the UCMJ that uses “minor” refers to under 16; the only exception is MRE 504 which expressly is limited to that rule and it’s not an offense but rather an evidentiary matter).  In other words, I think there’s a sound basis for the MJ’s ruling and voir dire should have been conducted before rulings on motions.  

    As for life experiences – we all have them and judges are subject to bias like everyone else.  I, for one, think we don’t voir dire judges enough.  If a juror member said he’d married someone at 17 in a CP or molestation case, I can’t imagine a TC or DC not wanting to do individual voir dire.  This raises a separate question – shouldn’t the judge disclose that?  Isn’t that a basis for questioning his neutrality?  I’ve seen one AF judge put on the record in every drug case that she had a family member with drug abuse issues but she wasn’t that close to him and explained how it didn’t impact her.  Her candid disclosure made her more credible.  I know some judges have biases and have slipped now and then and I am frustrated they don’t disclose.  

    In any event, I agree with the privacy act issues but the underlying question was quite valid if approached in a proper way IMHO. 

  7. Eugene R. Fidell says:

    Why the initials?

  8. OPLAW-LCDR says:

    RY – You are right about the underlying issue.  The UCMJ seems clear enough to me.

    Same for the spouse issue, absent the Privacy Act violation.  It certainly is a valid basis for voir dire, and I agree we don’t do it enough.  I have a judge I regularly appear before who happens to live down the block from me.  We both always put on the record that we live near one another but do not socialize.  It eliminates this sort of issue.

    This brings up this point:  the timing here smells.  It looks to me, admittedly looking in from the outside, when the voir dire happens AFTER the ruling, that it was an improper attempt to influence the Military Judge.  That brings even more issues of wrongful conduct on the TC’s part into play.  Its one thing to askv voir dire questions, its anouter to sub rosa threaten – which if such events were done to me, I assuredly would take as a threat.

    Tracking from Phil for a moment:  I can’t fathom why either of the MJ’s in this case didn’t slam the phone down when they received the respective calls.  I know we like to be friendly and respectful to our peers, but this thought comes to mind (with apologies to my USMC friends, whose saying I am borrowing and rewrtiting):  “A Military Judge on a trial has no friends.” 

    One final thought:  I have been reconsidering my previous comment about “where was the leadership?”  Thinking back to my days as a young LTJG, I never recall having information about senior officers’ families.  It was a long time before I even met the CO’s spouse.  On the other hand, I did then and do now know quite a bit about my peers’ families.  I really don’t like where this line of thinking leads to.

  9. Zachary Spilman says:

    There’s no way this is the whole story.

    Did it really matter that the definition of “a minor” was someone under 16 instead of someone under 18? Presumably, in this case, the person(s) in the images were well under either age (since the CCA did not discuss a legal or factual sufficiency issue).

    The CCA analogized this case to United States v. Nerad, 69 M.J. 138, 141 (C.A.A.F. 2010), but in Nerad the Appellant possessed pornographic images of a 17 year-old with whom he was having a sexual relationship. The facts of this case – where because of the Judge’s ruling, the conviction is for possessing pornographic images of a person under 16 – are very different. 

    Why would the prosecution care so much about the definition of “a minor” in this case as to go after the Judge? Particularly since the prosecution only had evidence that the Judge married a 17 year-old (which, as noted in Nerad, is not a crime), and not that he had pornographic images of her at that age.

    Here the facts are undisputed that LtCol MDM did marry a 17-year-old woman. The Government had verified this fact before commencing its voir dire into how that fact might have influenced LtCol MDM’s pretrial ruling on the definition of a minor. Col Richardson found this to be a good faith basis for questioning and we agree.

    Slip op. at 9. Saying the prosecution had a good-faith basis to ask the age of the Judge’s wife at the time of their marriage doesn’t mean that the answer was relevant. 

    What this case needs is a DuBay hearing.

  10. Dew_Process says:

    DISCLOSURE:  I’ve been friends with Dan for a long time.

    As an officer, this is disgusting conduct.  Clearly the marriage was “legal” at the time and place it occurred and that’s the only conceivable relevant question – had it not been, Dan would have had his own legal problems.  But, to me the conduct of both the TC and SJA/OIC flies in the face of the core concepts of “conduct unbecoming:”

    “There are certain moral attributes common to the ideal officer and the perfect gentleman, a lack of which is indicated by acts of . . . unfair dealing . . . indecorum . . . injustice, or cruelty.”  MCM, Part IV, para. 59(c)(2).

    Paragraph (c)(3), gives Examples of such unbecoming conduct includes “opening and reading a letter of another without authority . . . .”  Trial Counsel and the SJA/OIC didn’t just “stumble” on this issue — someone had to dig deep and wide to not only uncover it, but to verify it.

    Maybe it’s just me, maybe it’s me influenced by my friendship with Dan, but the “conduct” here by the TC and SJA/OIC imho “seriously compromises the officer’s character as a gentleman [and] seriously compromises the person’s standing as an officer.”

    A sad day for the military justice system and hopefully, CAAF will shed some light on “the rest of the story.”

  11. Just Sayin' says:

    Agree with Dew_P.
    Only knew LtCol M in passing but he seemed a decent enough fellow and this is just a disgusting smearing of a competent officer because the government didn’t like that it was losing.  (Lawanson sound familiar?)  First, I think the Privacy Act issues should indeed be pursued and if the Privacy Act was indeed violated, then the matter should be turned over to Rules Counsel (not that they will do anything).
    The whole point of a judiciary is that we trust our jurists to put aside their passions and prejudices and rule on the law and the facts.
    Saying “life experience” is grounds for recusal is a dangerous road to travel.

  12. OPLAW-LCDR says:

    Rules counsel may or may not do something, but I remember once long ago when someone was reported to their state bar.  The results were interesting.  I remember the offender screaming that this was going to be stapled to every job and malpractice insurance application they ever filed.  EXACTLY.

    I have to ask:  is there anyone who reads this who isn’t disgusted?

    Once more:  WHERE WAS THE LEADERSHIP???  Things like this get commanders relieved.  I hope TJAG and the SJA-Cmdnt clean house over this.      

  13. Charlie Gittins says:

    I am unsurprised by the conduct.  It is indicative of a loss of professionalism resulting from the lack of real experience among trial level TCs and others.  I once had a military judge make a bar complaint against me to my state Bar without disclosing to my client or me that he was doing so, claiming that I had threatened him without mentioning it to me, which I hadn’t, and who then allowed my client, who wanted to proceed judge alone, to do so without disclosing his apparent bias against me.   And then he convicted him on pretty sketchy evidence, while imposing a sub-jurisdictional sentence which deprived the client of meaningful review once the facts later arose (upon notice to me from the Bar).  The Bar dismissed the complaint against me without further investigation, but the client still was screwed by the MJ.  I’ll bet my MJ and the SJA in this case were peers.  The Navy Rules Counsel process is a joke with no competent review mechanism.  

  14. Michael Lowrey says:

    I think OPLAW-LCDR brought up a key word: “peer.” I don’t know any of the people involved in this, but based upon my knowledge of the world, I think it’s pretty obvious what got this all started. There are a rather finite number of Marine Corps O-5 lawyers. Put another way, LtCol Mori and LtCol JAM are peers — they almost certainly have known each other or at least have known of each other for many years. And through past personal interaction or office gossip, I’m willing to bet that JAM was quite aware how old Mori’s wife was when they got married.
    Throw in an unexpected ruling on the age for child pornography, and I suspect that generated a reaction, including the sudden desire to voir dire the judge on the issue.
    And no, I’m not saying this justifies some of what went on.

  15. N says:

    I agree with how this probably came to light (a term I hesitate to use, since nothing illegal went on), however it still doesn’t explain how the excerpt from the MJ’s service record came into the TC’s possession. 

  16. DoD says:

    Does anyone have the CCA briefs?  Those could probably shed some light on the missing parts of the story.

  17. No Kool-Aid says:

    I find this all rather ridiculous.  I am friends with Dan and I have been a MJ too. Honestly, this comes with the territory.  If the shoe were on the other foot, I’d bet my bottom dollar the people complaining about this would be championing a trial DC’s efforts to do the same if it would benefit the accused. Since when is the Privacy Act a shiled against voir dire of a military judge?   

  18. Dwight Sullivan says:

    No Kool-Aid, when’s the last time you saw a command hand over the military judge’s personnel file to a defense counsel to peruse?  To me, one of the most serious questions in this case is how the TC accessed the military judge’s personnel file — an issue about which the opinion is unenlightening.  Maybe they asked the military judge for permission to access it and he granted it.  Maybe they accessed it without notice to or permission from the military judge.  Maybe there are other possibilities.  But if the TC did access Judge Mori’s military personnel file without notice to him and permission from him, I find that enormously troubling.  And if a DC somehow did the same, I would find that troubling as well. 

  19. Dwight Sullivan says:

    Let’s consider this analogy.  Does anyone think that an AUSA could acquire a United States District Court judge’s OPM file to leaf through looking for something to support a causal challenge without notice to or permission from the U.S. District Court judge?  How do we think a U.S District Court judge would react if such a thing happened?  How do we think the legal community would react?

    And if we think such a COA would end badly for the AUSA, is there any reason why it should be acceptable for a military trial counsel to do something analogous?  (I hasten to add that I don’t have sufficient facts to know whether something analogous did occur in this case.  But I believe that the naval justice community should be concerned about the possibility that something analogous did occur, investigate whether that is the case, and take appropriate corrective steps if it is the case.  I also reemphasize my original disclosure; I don’t pretend to be neutral or objective on this one and maybe my analysis is faulty as a result.)  

  20. k fischer says:

    I consider myself a defense hack, and I don’t know any of the players in this case.  While I share concerns regarding illegally accessing private information (if that indeed occurred), I think the voire dire was proper in this case.  Also, I don’t see a huge issue with the MJ’s supervisor getting a call as a heads up, although, I would have spoken to the judge and defense counsel and requested that the judge make the call to his boss.  

    I’m with No Kool Aid on this one.  If this particular military judge’s spouse was a victim of sexual assault, then I would want to know as a defense counsel, so I could ask him to recuse himself.  While that is a highly personal matter, I think that anything we ask members, we can also ask the military judge.  I can see why the Government would not want someone who was married to a woman under the age of 18 to sit on a child porn case under the right factual scenario.  Could the TC have gotten the same mileage out of the judge’s answer to the question, “How old was your current wife when you married her?”  Yes, if the judge answered it truthfully.  I don’t see why the TC introduced the document when the judge’s answer would have sufficed.

    Also, the judge ruled in favor of the Defense and the subsequent judge prevented reconsideration of the ruling.  So, I don’t see how the appellant was prejudiced.

    Regarding the TC’s access to the MJ’s personnel files:  I think it should be taken as seriously by the Government’s bosses as it would be taken by the Government if a Defense obtained in the same manner the psych records of a Judge who talked with his shrink about the PTSD he felt from being a victim of sexual assault.

  21. Just Sayin' says:

    “To me, one of the most serious questions in this case is how the TC accessed the military judge’s personnel file”

  22. No Kool-Aid says:

    I totally agree that if someone obtained anyone’s records without going through proper channels that it ought to be investigated.  But consider it this way. The age of a minor in all child porn statutes I am aware of is 18.  I don’t think charging it under 134 changes that analysis.  Now let’s say I have a judge sitting on a case and for some reason he declares the age of a minor for proving up the spec is now 16.  That raises questions in my mind, particularly if there is no case law to support it.  (I don’t know whether there was in this case or no.)  Now let’s say I get hearsay from someone that the judge’s wife was 17 when he married her.  Does that now raise a question in my mind that his ruling may have had something to do with her being 17 when she married him?  I think I would be derelict if I did not ask him about that.  There is a real possibility the judge felt uncomfortable about ruling that minors for purposes of the spec are 18, when he got married to a woman when she was 17 – in his mind if he rules that way, he arguable married a minor (the laws of the jurisdiction where he got married aside, at might at least appear that way).  I have to at least probe whether any of this was in his mind when he made his ruling, because if so, he probably should not sit, etc.

  23. No Kool-Aid says:

    By the way, it has usually been my experience that the pople who do ham-handed things like call a judge are usually the people who don’t have much military justice experience.  I don’t know JAM, but I bet that guy was out of it for a while.  That was the case with Lewis.  Every actor involved on the side of the G was unversed with military justice and rushed in thinking they were going to burn a judge, etc. That group had a slew of cases reversed in those years. Same group who severed teh A/C relationship with a detailed DC and sent him to the trial shop.  You see this stuff and you ask where they were on the day law was taught at NJS.

  24. Just Sayin' says:

    “I don’t think charging it under 134 changes that analysis.”
    It does if the elements are different. Statutes…Words…They has a meaning.

  25. No Kool-Aid says:

    Check the well-developed case law on charging CP cases under 134.  And then join the issue.

  26. Just Sayin' says:

    You assume I haven’t.  Clearly at least one judge didn’t think it was as well developed as you think.

  27. Just Sayin' says:

    here’s the crux.  They had a clear and easy way to get the federal definition.  They could have charged clause 3.  They didn’t, so they are stuck with the consequences of clause 2 and the logical conundrum presented by the fact that, under your preferred interpretation, it is service discrediting to possess illicit photos of a 16 year old, but not for you to have sex with her yourself.  Under that logic, I can’t say the judge’s ruling was that illogical, regardless of the age of the bride.
    But please continue to insult my knowledge of case law to prove your point.  It’s a very persuasive argument.

  28. Good Authority says:

    I have it on good authority that during the proceedings on of the TC asked the MJ if he had ever disqualified the Government prosecutors from a case.  He replied that he had.  Payback?  CAAF will likely have something to say about this case and the JAG should just go ahead and certify it in a effort to restore some faith in the Government.

  29. Just Sayin' says:

    I’ve only had limited dealings with LtCol M, but I do recall him being somewhat more favorable to the defense.  Bottom line, the government could have easily fixed this issue by pleading with specificity.  Clause 2 charging creates a nice safe haven when the government can’t shore up the right elements under a defined statute, but the problem, and one much of the military judiciary is willing to overlook, is that it comes perilously close to void for vagueness issues.  Maybe I “just don’t know the caselaw” like some bloggers here, but I do know what it’s like to practice before federal judges.  A lot of the military’s loosey goosey crap wouldn’t fly in that system.  All the gov. had to do in this case was plead “possessing pictures of a person under the age of 18” or plead clause 3, which apparently they did do, and then withdrew…so the question: Why?

  30. John Harwood says:

    As for the practice pointer to come out of all of this … Just Sayin’ just nailed it: in Clause 1 & 2 prosecutions, the specification should read “In that Joe Sixpack did, on or about XXXX, at or near XXXX, possess visual depictions of persons under the age of 18 engaging in sexually explicit conduct, which was prejudical to GOAD in the armed forces, or was of a nature to bring discredit upon the armed forces,” or something like that.  Takes all the guess-work out of it.

    This issue made me go pull out my Black’s Law Dictionary and look up “minor.”  The definition is simply “a person who has not reached full legal age.”  For different issues, this “full legal age” is different.  For consent to intercourse, a person is no longer a “minor” at 16 under the UCMJ.  In all states, you don’t hit “full legal age” to consume alcohol until 21.  For voting, it’s 18.  Under federal CP statutes, it’s 18 as well.  Based on this flexibility in the definition of “minor” I have no problem with LtCol Mori’s ruling.  It’s in the TC’s power to make the specification as clear as he/she wants it to be.

  31. No Kool-Aid says:

    Just Sayin, I am proud of you.  I pratice before federal judges too.  Comparing that to military justice is apples to oranges. Federal case law is pretty black and white on most issues and tons more defernce is given to district court judges than military judges.  Military jurisprudence – especially at the appellate level – takes on a sort of “eye of the beholder” and “outcome-determinative” color. It reminds one at times of a Vegas roll of the dice.

  32. Just Sayin' says:

    which is a failure of the military justice system if it wishes to be considered a legitimate system, but in no way undermines my point about the anti-vagueness requirements of the US Constitution and the Supreme Court.
    As for the tone of your posts, I am reminded of an old legal adage.  When the facts are with you, argue the facts.  When the law is with you argue the law.  When neither is with you, pound the podium and abuse your opponent.

  33. anonymous senior defense counsel with the initials nm says:

    John – I totally agree.  But… I just had this thought:  Does the maximum punishment change if charged as “did possess visual depictions of a person under 18”?  Would our outcome determinitive appellate courts still give us the same max punishment, or would we have a beaty/st blanc problem?

  34. No Kool-Aid says:

    No, when the facts and law are not with you, go for jury nullification like Gerry Spence did in the Weaver case. :)

    Like I said, I am reminded sometimes of dicta from a federal circuit court opinion in which someone cited a CAAF case.  The circuit court opinion said words to the effect of, “That case has no precedential value here because it was decided by the Court of Appeals for the Armed Forces.”  It was a back-handed way of saying military appellate jurisprudence is done at the JV level.  I think if we required all military appellate judges to have served as trial judges first and if we removed the bar against military retirees serving on CAAF such that CAAF judges had been trial and appellate military judges, we would get better and more reliable results.

    Right now, its like a sweepstakes.   


  35. Phil Cave says:


    MJ says 16.
    Review evidence.  Easy proof that images are of 12yo.
    Go to trial.
    Get DD and two.
    Smile, a pervert is on his way to jail.
    Do AAR for next case.  What can we do better.
    Do better.
    Next case. 

  36. Dew_Process says:

    NKA – there’s another alternative and that’s to stay away from the incestuousness that permeates portions of the military judicial system.  Judge Stuckey, e.g., is a retired USAFR Col and AF CCA Judge, so he brought the CCA “mindset” to CAAF.  Chief Judge Everett, was also a retired USAFR Col, and Judge Ryan had a distinguished career in the USMC (as well as clerking for Justice Thomas).  I’m not advocating prior JAG experience one way or the other, although I am a big fan of how the Canadian military has transformed their military justice system.

    I agree with your “JV” assessment.  But, it wasn’t always that way, indeed, “back when” Justice Robert Duncan left the Ohio Supreme Court to go to the then CMA; Chief Judge Albert Fletcher had been a trial judge in Kansas; Matthew Perry had been a prominent trial lawyer in the South prior to his appointment to CMA; Judge Cox was a State trial judge before his appointment; and Judge Gierke was an Army military judge in Vietnam, and a member of the North Dakota Supreme Court when he got his appointment to the Court.  So the Court has a history of judicial experience and judicial respect.

    To use the “sloppy pleading” example, it exists simply because the appellate courts condone it.  Gene Fidell and I are probably some of the few who lived with Alef Pleading [U.S. v. Alef, 3 M.J. 414 (CMA 19770;  James, Pleadings and Practice Under United States v. Alef, 20 A.F. L. Rev. 22 1978)], where specificity in jurisdictional elements was strictly mandated [eliminated by Solorio and the return to sloppy pleading].

    As numerous posters on this thread have pointed out, the government walked itself into the mess in Salyer because of the way the Spec’s were drafted. [It almost seems “quaint” the Art. 32, IO’s checklist:  “Are the Charges and Specifications in proper form?”]  And as others have commented on federal practice, where I too practice, rather than the “apples and oranges” comparison, whatever happened to the spirit and Legislative intent of Art. 36(a)’s mandate of “consistency?”

  37. Dew_Process says:

    PS: And apologies to my Sea Service Friends, I inadvertantly left off of my list Judge Robert Wiss, a Rear Admiral in the USNR JAGC (ret), whose career as a jurist was tragically cut short.

  38. Gene Fidell says:

    Dew, surely you and I are not the only ones who remember Alef! After all, it was only 35 [gasp!] years ago (and Solorio a mere 25).

  39. John Harwood says:

    SDC-NM, aren’t they having those problems already?  I’m not as up on the appellate world as you are (one of the very, very few downsides to being Down Under), but I thought I’ve heard of several TDC raising the issue of max punishments in Clause 1&2 cases for CP, and winning some of the time.  Maybe they just need to have JAJM and the rest of the UCMJ committee draft up an enumerated 134 offense with a max punishment attached for POTUS approval. 

  40. Christian Deichert says:

    John – they did add an enumerated 134 CP offense to the 2012 MCM.  You may not be on the AFJAGS mailing list to get the hard copy; I’ll see if we can get one out to you.

  41. Ex TC says:

    The stuff NJS legends become made of, in a bad way. 

     Someone said we are the JV squad. Yes and no but this kind of junk gives us all a black eye.

  42. anonymous senior defense counsel with the initials nm says:

    JH – I know only enough to know it’s sometimes still an issue, which makes this particular member of the JV squad just enough knowledgeable to be dangerous.

    I think this case went down before the enumerated offense was added.  Which would explain why they charged “child porn” instead of “what appears to be child porn.”  So they didn’t incorporate the statute under clause 3, but they closely mirrored its language to get the closely analogous max punishment (this case was sentenced before the enumerated 134 offense but after US v Beaty).

    The govt wanted to use the age of 18, which is what the feds use, but they didn’t charge under clause 3 and incorporate that particular fed statute.  Ergo the judge wasn’t necessarily bound by that statute’s definitions.  Even though the govt didn’t incorporate the fed statute, I wonder if they were hesitant to deviate too much from the language of the statute for fear of losing the “closely analogous” max punishment? 

    Maybe they should have just proceeded under clause 3.  But like I say, I only know enough to know this is an issue.   

  43. Peter McLaughlin says:

    Judges – remember this case when you casually order the personnel records of investigators be given to the defense counsel.  Hurts, doesn’t it?

  44. Atticus says:

    I never ordered release of investigator files without a good-faith showing that there was discoverable material in the file. Make your judges at least do an in-camera review.

  45. Phil Cave says:

    Not aware of any MJ who “casually” gives out investigators records, quite the reverse.

    And that’s not the issue here.

    What does appear to be the issue is that one or more Marine judge advocates may have abused their authority to unlawfully obtain personnel records of the military judge.  It would be the same if they unlawfully obtained other personnel records of other people.  That’s the hurt, and depending on the facts, the crime.