You’ll recall that 38 days ago, CAAF ordered the Air Force Court to decide the Carter appeal by 11 January 2013 or explain why it couldn’t.  Carter v. Air Force Court of Criminal Appeals, __ M.J. __, No. 13-8006/AF (C.A.A.F. Nov. 27, 2012).  Today, AFCCA issued this upublished opinion in the case, setting aside the findings and sentence on Fosler grounds.

17 Responses to “Breaking news: AFCCA sets aside findings and sentence in Carter”

  1. Dew_Process says:

    540 days of CCA delay on a Fosler issue should be per se prejudicial. I may be “howling at the moon” (which I’m prone to do), but it sure appears that the AF CCA sat on this case to ensure that Carter spent as much time in confinement as possible before granting relief on what wass fundamentally, a very routine Fosler issue.

    CAAF should grant on this if for no other reason to compel the CCA’s to document the cause(s) of such “internal” delays so that appellants have a better basis to intelligently argue prejudice.

  2. John O'Connor says:

    Can CAAF grant a petition on this? The CCA did not affirm any findings or sentence. Wouldn’t the accused in essence have to petition for review of findings and a sentence that he’s already succesfully had set aside?

  3. Zachary Spilman says:

    Contrary to his pleas, the appellant was convicted by a panel of officer members at a general court-martial of one specification of taking indecent liberties with a child under the age of 16, one specification of child endangerment, and one specification of committing indecent acts with a child under the age of 16, in violation of Articles 120 and 134, UCMJ, 10 U.S.C. §§ 920, 934.

    Slip op. at 1-2 (emphasis added).

    The appellant argues that his conviction for reckless endangerment of a child and indecent acts with a child, as alleged in Specifications 1 and 2 of Charge III, respectively, should be set aside and dismissed because neither specification alleges the Article 134, UCMJ, terminal element of being either prejudicial to good order and discipline (Clause 1) or service discrediting (Clause 2). We agree.

    Slip op. at 3 (emphasis added).

    Having considered the record in light of Humphries, the findings of guilty to Charge III and its specifications and the sentence are set aside and dismissed. The record of trial is returned to the Judge Advocate General for remand to an appropriate convening authority.

    Slip op. at 5-6 (emphasis added).

    So the finding of guilty of taking indecent liberties with a child under the age of 16 was affirmed (max confinement: 15 years). The appellant was sentenced to confinement for 3 years on February 26, 2010. A footnote explains that:

    While we are mindful that the appellant remained incarcerated for a longer period than may have been required had his appeal been decided in a timelier manner following the June 2012 decision in Humphries, we note that the debatably oppressive nature of his confinement was dramatically tempered by the fact he chose to remain imprisoned beyond his minimum release date of 10 August 2012, because he refused to submit an acceptable mandatory supervised release plan.

    Slip op. at 5, n.7 (emphasis added).

    Left unanswered is whether he can be retried on the 134 offenses (presumably yes).

    Also left unanswered is whether the AFCCA, as a creature of the Executive, is vulnerable to suit under 42 U.S.C. § 1983.

  4. Dew_Process says:

    ZS – 1983 suits do not apply to the federal gov’t, only State and local governments.  To sue the feds, you’ve got to sue under the FTCA or bring a Bivens action, but then you run smack into Feres.
     
    I missed the footnote in my quick read, which confirms my cynicysm that they delayed deciding the case to keep him in jail.  To claim that he “chose to remain imprisoned” is intellectually dishonest – no one “choses” to do that.  They didn’t like his “supervised release” plan – which happens frequently in sex offender cases to ensure maximum incarceration, and disapproved it.  Never mind that he’s going to be a Registered SO in any event.

  5. Zachary Spilman says:

    Right. Thanks. Bivens for the feds.

    As for keeping him in jail, the conditions were only “debatably oppressive.”

  6. SFC V says:

    “So the finding of guilty of taking indecent liberties with a child under the age of 16 was affirmed (max confinement: 15 years).” – Zachary Spilman
    “The convening authority disapproved the finding of guilty with respect to taking indecent liberties with a child under the age of 16, and approved the remaining findings.” – Slip Op. at 2 
    I don’t think any findings were affirmed. 

  7. tsam says:

    DP:  I’m not sure why you say Carter did not choose to remain in jail. If I am reading the footnote correctly, he had a chance to get out of jail early but decided he did not like the parole terms and refused to provide a proper supervised release plan – hence he chose to remain incarcerated.  

  8. Joonka says:

    I must be missing something but is anyone aware any coram nobis petitions parked at CAAF yet?
     

  9. John O'Connor says:

    Zack, I think you’re misreadiung the opinion when you say that “the finding of guilty of taking indecent liberties with a child under the age of 16 was affirmed (max confinement: 15 years).”  As I read page 2 of the opinion, it appears the convening authority disapproved that finding of guilty, so all that remained on appeal were the 134 specs.
     
    Also, I don’t think the CCA can affirm a finding of guilt by just neglecting to set it aside.  I think they have to affirmatively find a spec legally and factually supported.  Here, though, I believe the indecent liberties spec was disapproved by the CA so there’s no finding or sentence approved.    

  10. John O'Connor says:

    Somehow I missed SFC V’s post to the same effect.

  11. Zachary Spilman says:

    Yup. I missed that. It was a long day. I wonder why it was disapproved.

  12. Dew_Process says:

    @tsam:  You are reading it correctly, it was the Court’s misguided language that I’m complaining about.  When someone “checks into” the DB or RCF, they get a presumptive, “minimum release date.”  That is computed by taking the balance left on the confinement portion [after any credits or time-served] and factoring in “good time” credits.  Good time is an incentive to keep the inmates calm and encourage rehabilition efforts.  Carter complied with all of that and thus normally would have been released on his minimum release date.
     
    Sex cases are different and pose issues for defense counsel that likewise are normally present when the client has pled “not guilty.”  Some client’s opt to “max out” simply so that they do not have to have any supervised release.  That was notthe case with Carter.  He submitted a supervised release plan — they didn’t “like it” and so, not only disapproved it, but then refused to release him.  While the opinion does not give the specifics, having had numerous clients in that boat over the years, I’m confident that at least one of the reasons that it was “disapproved” was because he did not (and probably could not) comply with the requirement that he also be in an “approved” sex offender treatment program.
     
    All of the SO programs that my clients have ever faced universally required that as a pre-condition to entry into the program, that the alleged “offender” admit his/her misconduct as the so-called “first step in rehabilitation.”  If there are active appeals in progress – such as in Carter’s case – any minimally competent defense attorney would have to advise him that by doing so, such an admission could have disastrous consequences, and thus, counsel against doing so.  Here, for example, had Carter made such admissions, he would for sure now be looking at them being used against him in any retrial as they are not privileged in any form.  Now TC not only has a “confession” but it comes in via a licensed, registered, certified “Sexual Abuse” Counselor, which adds to the negative impact on any retrial.
     
    The “intellectual dishonesty” comes in because courts [not just the AF CCA] have consistently refused to admit that forcing someone to “waive” their self-incrimination rights [and Art. 31, may or may not be applicable] in order to “get out of jail,” is unconscionable, if not unconstitutional.  Under the circumstances, Carter didn’t have a real choice if he wanted to avoid incriminating himself on any retrial if in fact that was the scenario.

  13. Cap'n Crunch says:

    I think the accused/defendant could, indeed, file a petition for grant of review on the unreasonable delay issue?  The case was reviewed by AFCCA, and therefore, CAAF has jurisdiction.  A Hobson’s choice, perhaps, because it could invite review of the AFCCA decision granting relief?
    I think I’d file the petition.  I think there exists a reasonable chance that the accused could walk free on this.

  14. SFC V says:

    Many who maintain their innocence routinely spend more time in jail than those who do not.  A case a reviewed for the innocence project last semester involved a guy that would have been out of jail last year had he had pleaded guilty in exchange for a 20 year sentence but he is now doing LWOP.  This is certainly not unique to military justice.
     
    When it comes to sex offender treatment it’s a catch 22 for everyone.  Can you really treat someone that doesn’t recognze the problem?  Does someone who didn’t committ the offenses need treatment?  At the end of the day I think once you have been proven guilty and sentenced you can be made to serve that sentence.  If you don’t want to comply with the conditions necessary to secure an early release then you will serve your sentence.  This assumes timely appellate review.  In this case he only continued to serve his sentence because AFCCA decided to move like mollasses.
     
    I am not certain granting him any relief would serve any purpose.   You are  punishing the convening authority for the inaction of a court over which they are not supposed to exert any influence.

  15. John Harwood says:

    I’ve heard waterboarding is debatably oppressive.

  16. Cap'n Crunch says:

    SFC V:  No, I disagree.  You are not punishing the convening authority.  Trust me… folks end up having charges and specifications dismissed due to appellate error… that sends a message to TJAG; TJAG then removes AFCCA judges and/or staffs the court appropriately to ensure that it properly processes cases.  Problem gets fixed.  AFCCA seems to have a bit of a systemic problem, and the best way to cause action to occur is to send a message.  Setting aside the charges and specifications due to unreasonable appellate delay sends a message.

  17. Atticus says:

    540 days of CCA delay?  Sounds like an NMCCA I once knew….