Today the NMCCA released a massive, 32 page published opinion of the court in United States v. Commander Booker, Military Judge, No. 201300247, 72 M.J. 787 (N-M. Ct. Crim. App. Sep. 20, 2013) (link to opinion).

A three-judge panel of the NMCCA grants a Government petition for extraordinary relief in the nature of a writ of mandamus and reverses a military judge’s ruling setting the maximum punishment for sexual assault in violation of Article 120(b) (2012) as the jurisdictional limit of a summary court-martial (rank-dependent but a maximum of confinement for 1 month, forfeiture of 2/3 pay per month for 1 month, and reduction to E-1).

The President did not define the maximum punishments for offenses established in the 2012 revision to Article 120 until May 15 of this year (you can read all of our Article 120 (2012) coverage at this link). The Accused in this case was arraigned the day before the President acted, and two days after the President acted the Government filed a motion asking the judge to determine the maximum punishment for the sexual offenses. The judge then made his ruling, and the Government sought relief from the CCA.

After extensive discussion of its jurisdiction to consider the Government petition and the Government’s right to seek extraordinary relief, the CCA turns to the question of sentence determination. The court begins by noting that R.C.M. 1003(c) “established a binary analytical framework for offense-based limits on punishments: that framework employs mutually exclusive criteria, dependent upon whether the offenses are “listed” or “not listed” in Part IV of the Manual for Courts-Martial.” Slip op. at 17 (citation and marks omitted). Despite the inclusion of the statutory text of Article 120 (2012) in the most recent MCM, the court concludes that the offenses are not “listed” in Part IV because the inclusion was done by the Joint Service Committee and not by the President in an executive order (“Only the President may amend Part IV of the Manual, and prior to 15 May 2013, he had not done so with respect to the revised Article 120.” Slip op. at 21).

That leaves the procedure established in R.C.M. 1003(c)(1)(B) to determine the maximum punishment for an offense not listed in Part IV:

By applying the various offense-based limits on punishment mandated in R.C.M. 1003(c)(1)(B), we conclude that at the time the offenses were allegedly committed, the authorized punishment included a dishonorable discharge and confinement for at least 30 years.

Slip op. at 30.

The court then concludes:

the military judge’s analysis and ruling clearly deviated from the President’s unambiguous, standing guidance for determining offense-based limits on punishment for offenses not listed in Part IV of the Manual. The military judge’s ruling “overreached [his] judicial power to deny the Government the rightful fruits of a valid conviction,” Will, 389 U.S. at 97-98 (citation omitted), confinement in accordance with a law enacted by Congress exercising its Constitutional authority “to define crimes and fix punishments,” and the President’s exercise of Congressionally-delegated authority to define limits on punishment, Ex parte United States, 242 U.S at 42. See also Roche, 319 U.S. at 31 (issuance of the writ justified by persistent disregard of the Rules of Civil Procedure by Court) (citations omitted).

Additionally, to the extent that confusion over the punishment authorized for offenses charged under the amended Article 120 exists in the trial judiciary, the likelihood of recurrence weighs in favor of issuing the requested writ. At least one military jurist has ruled that the maximum punishment authorized for a sexual assault that allegedly occurred after 27 June 2012 and before 15 May 2013 does not include a punitive discharge or confinement for more than one month, while this court has concluded that a dishonorable discharge and confinement for 30 years are authorized punishments. Accord United States v. Ramsey, 40 M.J. 71, 76 (C.M.A. 1994) (“the military judge not only lacked authority for his ruling on reconsideration in which he arbitrarily picked some lesser figure than the 10 years authorized for [a lesser-included offense] malingering in a hostile fire pay zone; but also he failed to follow the clear mandate of R.C.M. 1003(c)(1)(B)(i).” (citation omitted)).

We see no reason to allow such an error to persist in a matter as fundamental to the proper administration of justice as the maximum punishment authorized for an alleged offense. See Ex parte United States, 242 U.S. at 51-52 (“since its exercise in the very nature of things amounts to a refusal by the judicial power to perform a duty resting upon it and, as a consequence thereof, to an interference with both the legislative and executive authority as fixed by the Constitution.”). Issuance of the requested writ is necessary and appropriate under these circumstances. Hasan, 71 M.J. at 418.

Slip op. at 30-31.

4 Responses to “NMCCA reverses military judge’s ruling that the maximum punishment under Article 120 (2012) is the jurisdictional limit of a summary court-martial”

  1. ArmyTC says:

    What on earth was this judge thinking? 

  2. SomeotherTC says:

    This MJ’s analysis was off the mark.  But if you know anything about CDR Lewis T. Booker, you know that this was more than just an opinion – it was his way to make a point that the Congress, President, DoD, and JSC should stop messing with the UCMJ or, if they do, do it the right way and have all the rulemaking done before a statute takes effect.  Unfortunately there were real people involved – accused, victims, and witnesses, who had to wait months for his point to be reversed by NMCCA.
    Any idea if appellate defense will take this to CAAF?

  3. Christopher Mathews says:

    @ SOTC –  Not sure it’s the military judge’s job to “make a point” about elected officials’ execution of their offices.
    If he really wanted to send a message, email is faster.

  4. Abe Froman says:

    This is classic CDR Booker.  He is no dummy and has been around for quite some time, whether on the trial or appellate bench.  If he has an incongruous itch that he wants to scratch, he’ll scratch it . And if he can piss on the govt’s Corn Flakes while doing so, all the better. 

    I still don’t see where he came up with SCM punishments, tho.