CAAF will hear oral argument in the Army case of United States v. Jones, No. 14-0071/AR (CAAFlog case page), on Wednesday, April 9, 2014, at the Florida International University College of Law, Miami, Florida, beginning at 12:30 p.m. The court will review a single issue:

Whether the military judge abused his discretion when he denied the defense’s motion to suppress appellant’s statement to the military police.

Regular readers might recognize the facts of this case, as Appellant was convicted of burglary and conspiracy to commit burglary for his participation in the 2011 robbery of over $380,000 from an Iraqi businessman. One of Appellant’s co-conspirators was Specialist Carrasquillo, whose invocation of his right to remain silent was considered by the Army Court in a published opinion issued last November. United States v. Carrasquillo, 72 M.J. 850 (A.Ct.Crim.App. 2013) (link to slip op.). I discussed that opinion in a December post titled: The right to remain silent when the evidence of guilt is overwhelming.

Before the robbery, one of Appellant’s co-conspirators (Carrasquillo, actually, though Appellant was there too) attempted to recruit Specialist Ellis into the conspiracy. Specialist Ellis was an augmentee military police officer who wore a military policeman’s uniform but had little formal training. Ellis thought Carrasquillo was joking, but when Ellis later heard about the robbery (and was assigned to investigate it), he suspected Appellant and questioned him without first advising him of his right to remain silent under Article 31, UCMJ.

The questioning proceeded along these lines:

Question [Ellis]: Jones, don’t fucking lie to me, what the fuck happened and why the fuck did you do it.
Answer [Appellant]: I don’t know what your talking about we didn’t do anything.
Question: Don’t fucking lie to me tell me the truth?
Answer: Alright we did it!
Question: You did what exactly?
Answer: We went over there and robbed the guy with all the money.

App. Br. at 4-5. At trial, the military judge rejected a Defense motion to suppress this exchange due to the lack of a rights advisory, finding that “SPC Ellis was acting in an unofficial capacity and was not acting as a part of a law enforcement disciplinary investigation, and that [Appellant] did not perceive the questioning as more than a casual conversation between peers.” App. Br. at 6. The judge also concluded that Ellis did not suspect Appellant of the robbery at the time of the questioning, but was merely acting on “a hunch based from [sic] the previously solicitation.” App. Br. at 7. The statements to Ellis were admitted into evidence at trial, Appellant was convicted of the burglary and conspiracy, and Appellant was sentenced to confinement for two years and a bad-conduct discharge. The Army CCA summarily affirmed.

In his brief to CAAF, Appellant’s asserts that the military judge made three errors in denying the Defense motion to suppress:

(1) Concluding that Appellant was not a suspect within the meaning of Article 31 when he was questioned by Ellis;
(2) Concluding that the questioning was just a casual conversation and not an interrogation; and
(3) Concluding that Ellis was not acting in an official capacity at the time of the questioning.

Appellant must prevail in the analysis of each of these assertions of error if he stands a chance of relief, because a military policeman need not give a rights advisement when the accused isn’t yet a suspect (see United States v. Miller, 48 MJ 49, 54 (C.A.A.F. 1998)), and because Article 31(b) does not apply where the questioner is not acting in an official capacity or the person questioned does not perceive the inquiry as more than a casual conversation (see United States v. Duga, 10 MJ 206, 210 (C.M.A. 1981)).

“An appellate court reviews the denial of a motion to suppress a confession under an abuse of discretion standard, and accepts the judge’s findings of fact unless they are clearly erroneous. United States v. Simpson, 54 M.J. 281, 283 (C.A.A.F. 2000) (citations omitted). See also, e.g., United States v. Ayala, 43 M.J. 296, 298 (C.A.A.F. 1995). “The abuse of discretion standard is a strict one, calling for more than a mere difference of opinion. The challenged action must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous.” United States v. White, 69 M.J. 236, 239 (C.A.A.F. 2010) (quoting United States v. Lloyd, 69 M.J. 95, 99 (C.A.A.F. 2010)).

The issue statement in this case makes it clear that CAAF will consider the judge’s ruling under this highly-deferential standard of review, but Appellant may yet avoid the brunt of its strictness. “In reviewing a military judge’s ruling on a motion to suppress, [CAAF] review[s] factfinding under the clearly-erroneous standard and conclusions of law under the de novo standard. Thus, on a mixed question of law and fact as in this case, a military judge abuses his discretion if his findings of fact are clearly erroneous or his conclusions of law are incorrect.” United States v. Ayala, 43 M.J. at 298.

But caselaw treats the three seemingly-factual determinations by the military judge that Appellant asserts as errors (was Appellant a suspect; did Appellant perceive questioning as more than a casual conversation; was Ellis acting in an official capacity) as questions of law, not questions of fact. See, e.g., United States v. Muirhead, 51 M.J. 94, 96 (C.A.A.F. 1999) (whether person is a subject is reviewed de novo); United States v. Young, 49 M.J. 265, 269 (C.A.A.F. 1998) (whether there has been an interrogation is a question of law reviewed de novo); United States v. Good, 32 M.J. 105, 108 (C.M.A. 1991) (the status as a suspect and whether an inquiry was law enforcement or disciplinary in nature are questions of law).

So, if it follows this precedent, CAAF will review these asserted errors de novo and give no deference to the ultimate conclusions of the trial judge. See, e.g., United States v. Roberts, 59 M.J. 323, 327 n.3 (C.A.A.F. 2004) (no deference given under de novo review).

As discussed above, Appellant must prevail on all three asserted errors to prevail at all. But the burden in this case is on the Government, not on Appellant. “The Government has the burden of establishing compliance with rights warning requirements by a preponderance of the evidence.” United States v. Pipkin, 58 M.J. 358, 361 (C.A.A.F. 2003) (quoting United States v. Simpson, 54 M.J. 281, 283 (C.A.A.F. 2000)). At the time of Appellant’s trial, this burden was codified in Military Rule of Evidence 304(e) (the 2013 revision moved it to M.R.E. 304(f)(6)).

But even if the Government fails to convince CAAF that the statements to Ellis were admissible, the error of their admission must still be tested for prejudice under the standard of harmlessness beyond a reasonable doubt. United States v. Gardinier, 67 M.J. 304, 306 (C.A.A.F. 2009). This too is a strict standard. See Chapman v. California, 386 U.S. 18, 24 (1967) (there must be no “reasonable possibility that the evidence complained of might have contributed to the conviction.”). And the burden to persuade CAAF of such harmlessness also rests on the Government, because of Appellant’s trial-stage objection. See United States v. Humphries, 71 M.J. 209 n.2 (C.A.A.F. 2012) (discussing the burden-assigning “difference between preserving an issue for appeal by objecting at trial and raising the issue for the first time on appeal.”).

Appellant’s brief doesn’t discuss these burdens in depth. Rather, early on it accurately states that:

A servicemember’s status as a suspect and the nature of the official inquiry as either law enforcement or disciplinary are ultimately legal questions.

App. Br. at 8. But the Government’s brief takes a different posture:

A military judge’s denial of a motion to suppress evidence is reviewed for an abuse of discretion. This court reviews a military judge’s findings of fact under the clearly-erroneous standard and conclusions of law under the de novo standard. The abuse of discretion standard calls for more than a mere difference of opinion. The challenged action must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous.

Gov’t Br. at 10 (marks and citations omitted). Then, throughout its argument of Appellant’s assertions of error, the Government’s brief repeatedly tries to apply the standard of review for findings of fact to the judge’s conclusions on the questions of law at issue in this case:

The military judge found in his written decision: “[T]he evidence here indicates that SPC Ellis was not acting in any official capacity.” Based on the facts, the findings by the military judge can hardly be described as arbitrary or clearly unreasonable.

Gov’t Br. at 14.

For these reasons, the military judge did not clearly err in finding that PFC Ellis was not acting in an official capacity when appellant made his inculpatory statements.

Gov’t Br. at 18.

The military judge’s factual findings are not clearly erroneous and are amply supported by the evidence. Accordingly, because appellant did not perceive PFC Ellis’s questions as interrogation by a superior or as being propounded for a law enforcement or official purpose, the military judge correctly held that appellant’s statements to PFC Ellis were admissible.

At best, appellant has shown that he has an opinion that differs from the military judge’s decision to admit his statement. However, he has failed to show that the military judge’s decision to admit his statement fell outside the range of reasonableness such that it was clearly erroneous and an abuse of discretion.

Gov’t Br. at 23.

The Government also attempts to shift the burden of proof to Appellant:

Notably, appellant did not offer any evidence that he thought PFC Ellis was acting in a law enforcement capacity when he spoke to him. Appellant also offered no evidence that he perceived the questions to be for a law enforcement purpose or that he believed he was a suspect at the time of their conversation.

Gov’t Br. at 20 n.106. This attempt at burden-shifting is particularly troublesome in light of the fact that the Government’s brief also acknowledges that the issues of “whether the questioner is acting in a law-enforcement or disciplinary capacity and the individual’s perception of the nature of the questioning are evaluated objectively in light of all the facts and circumstances.” Gov’t Br. at 13 (emphasis added). Ironically, the Government’s brief later argues this contrary fact, stating that “even if appellant had offered evidence that he believed he was being interrogated, any such belief would have been unreasonable. . .” Gov’t Br. at 21 n.109.

I predict that because of these issues, the standard of review and the burdens of proof and persuasion will be significant topics during the oral argument. Moreover, if the Government is forced to make an early concession that the issues in this case are questions of law reviewed de novo (as I believe that it will be), then I predict that its brief is going to be used against it during the rest of the argument.

And that brief includes facts both good and bad for the Government. For instance, while the Government’s brief highlights the facts that Ellis was Appellant’s “peer and neighbor” (Gov’t Br. at 14), and that Appellant asked Ellis to participate in the crime (Gov’t Br. at 17), it downplays the fact that Ellis suspected the Accused and wanted to determine whether his suspicion was correct before reporting him (Gov’t Br. at 7).

But the Government’s brief doesn’t address the legal question of Appellant’s status as a suspect, implying that it concedes this issue to Appellant.

Still, despite all of this, the Government has a pretty strong case. Its brief rightly explains that “the purpose of Article 31(b) is to provide servicepersons with protection from what was deemed as the subtle pressures that exists in military society.” Gov’t Br. at 11 (citation omitted). And it’s hard to say that Appellant was subject to pressure when Ellis, his would-be co-conspirator, who was junior in rank and a friend, asked him why he did it during a private conversation in Ellis’ room (where “Appellant also closed and locked the door to the room before their conversation.” Gov’t Br. at 22.).

The Government also has a pretty strong case for harmlessness:

Here, any error would have been harmless because the panel would have still heard PFC Ellis testify that appellant had attempted to recruit him to rob Mr. DA. They would have also heard how SPC Carrasquillo admitted to PFC Ellis that appellant had participated in the robbery. In addition, Mr. DA’s testimony also implicates appellant. DA testified through an interpreter that he had been watching television when he heard a noise and opened the door. His description of his assailants also fits appellant’s physical characteristics.

Most damning was the testimony of co-conspirator, PFC Backes, who testified that he committed the robbery alongside appellant.

Gov’t Br. at 24-25. Appellant’s brief asserts that the Government’s case was focused on the testimony of PFC Backes, and that the Defense case “was based on discrediting PFC Backes who testified under government immunity.” App. Br. at 21. Whether that’s persuasive enough to undermine the Government’s other evidence remains to be seen.

Finally, a law school amicus (who received time for oral argument) focuses on two parts of the analysis: Whether Ellis was acting in an official capacity when he questioned Appellant, and whether Appellant objectively perceived that questioning to be official and not a casual conversation. The brief notes that both of these issues are questions of law reviewed de novo. Amicus Br. at 10 and 14.

On the first question, Amicus asserts that “the test is whether the questioner had a law enforcement purpose for the questioning or did so solely for another reason,” and that any law enforcement purpose will cause the questioner to act in an official capacity. Amicus Br. at 7. The brief notes that the judge found that Ellis had both an official and a personal motivation, making his questioning official, and the brief asserts that the judge erroneously applied a primary purpose test to find the questioning not official. App. Br. at 10.

On the second question, Amicus observes that the objective test of the suspect’s perception of a conversation as official or casual was developed for cases where law enforcement was using an undercover agent or similar tool that would otherwise require a rights advisory, and that CAAF “frequently does not use this prong . . . where there is no informant issue.” Amicus Br. at 11. But the brief analyzes the circumstances of the questioning, concluding that Appellant did, and objectively could, perceive the questioning as more than a casual conversation.

Ultimately, CAAF could assume that the military judge erred in denying the motion to suppress but affirm this case on the prejudice issue. Even if the conviction is affirmed, I really hope that the court doesn’t affirm it that way. The Government’s brief reveals that there is at least some confusion over the appropriate standard of review in a case like this, and Amicus raises the interesting question of the applicability of the casual conversation exception, so a comprehensive analysis by CAAF would add a lot of clarity to a complicated area of military law.

Case Links:
• ACCA opinion (summary affirmation)
• Appellant’s brief
• Appelllee’s (Government) brief
Amicus brief
• Blog post: Argument preview

31 Responses to “Argument Preview: United States v. Jones, No. 14-0071/AR”

  1. AF JAG says:

    @Zachary Spillman–For once you and I are in AGREEMENT!  I whole-heartedly concur that the “Abuse of Discretion” standard of review if BI-FURCATED and that it is only the FINDINGS of FACT that are entitled to significant defernece (i.e. military judge’s findings of fact sustained unless “clearly erroneous”) whereas CONCLUSIONS of LAW are, and should be, reviewed de novo.
     
    CAAF’s sometimes soaring rhetoric in describing the ambit of “Abuse of Discretion review,” waxing poetic that ““The abuse of discretion standard is a strict one, calling for more than a mere difference of opinion. The challenged action must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous.” United States v. White, 69 M.J. 236, 239 (C.A.A.F. 2010) (quoting United States v. Lloyd, 69 M.J. 95, 99 (C.A.A.F. 2010)). really just unnecessarily muddies the waters.  CAAF should be much more careful to delineate that this deferential language is really more properly attributable to FINDINGS of FACT, not conclusions of law.  The reason is simple:  military judges simply should be afforded no discretion to get the law wrong.
     
    Where practitioners err in applying this standard (and I mean BOTH sides:  the defense in Article 62 appeals; and the government in Article 66 and 67 appeals) is in CONFLATING the deferential standard attributable to the “FINDINGS of FACT” prong of the “Abuse of Discretion review” to what should be the de novo review of “CONCLUSIONS of LAW.”
     
    So maybe the problem is how to apply the “Abuse of Discretion” stanard of review in “mixed questions of law and fact” cases (like suppression of confessions cases).  On that score, I think there is a straight forward fix:  CAAF should clearly dileniating (hopefully in the Jones case) that the application of facts to law is itself a CONCLUSION of LAW which appellate courts will review de novo.  That is to say, that review of “conclusions of law” is not limited simply to whether the miltiary judge articulated the proper legal basis on which to evaluate an issue (i.e. the suppression of confessions will be evaluated applying Article 31; MRE 304; United States v. Miller (CAAF 1998) and United States v. Duga (CMA 1981)), but rather, the proper APPLICATION of those legal prinicples to the findings of fact articulated by the military judge.  Again, articulation and appliction of legal prinicples governing a case are both CONCLUSIONS of LAW and should be reviewed de novo.
     
    When you think about it, it only makes sense.  Findings of fact are, and should be, accorded great deference because hte trial court is the finder of fact and the military judge is the “man on the ground” as it were whose personal observations should be accorded great weight.  By contrast, the law is not supposed to be subject to the same vicissitudes as facts; its supposed to be fixed; it’s supposed to be consistent and most importantly, it’s supposed to be applied correctly.  So it is only appropriate that appellate courts apply a de novo standard to review of conclusions of law because no military judge (or appellate judge for that matter) should be accorded “discretion” to get the law wrong.
     
    Standards of review are often overlooked or just invoked “mechanically” by appellate practitioners without much reflection on their particulars, but they simply couldn’t be more important.  Here, I hope CAAF seizes this opportunity to clearly articulate what practitoners have been conflating and clearly articulates that the military judge’s application of law to facts in reaching his conclusions of law, is ITSELF a conclusion of law and should be reviewed, de novo. 

  2. Zachary D Spilman says:

    For once indeed AF JAG! Concur heartily with your analysis, and particularly with the first sentence of the last paragraph.

    Note though, just one L in my last name (a very common mistake; mine seems to be a counter-intuitive spelling).  

  3. AF JAG says:

     
    My apologies on the name misspelling–“Spilman”–now I got it, and I’ll do better next time!

  4. k fischer says:

    He was assigned to investigate the crime, but was not questioning him in his official capacity?  So, is that how you do it?  You find someone in law enforcement, assign him the case, then tell him to scream, “Don’t f’cking lie to me!  Did you do it????!!!!”
     
    Because if that’s the case, then perhaps should add the following language after subsection (a), “particularly if the person is assigned to investigate a crime, unless the investigator and accused have a previously friendly relationship in which this chapter does not apply.”

  5. stewie says:

    Yeah, that part is “cray-cray” IMO. “when Ellis later heard about the robbery (and was assigned to investigate it), he suspected Appellant and questioned him without first advising him of his right to remain silent under Article 31, UCMJ.”
     
    You know I might, might hear an argument that if he wasn’t assigned to the case, knew nothing about it, and was just talking as friends, and it slipped out then it’s not an Article 31 issue.  But when he is assigned to the case, knows about it, suspects the accused is involved, goes to question him about it, and then YELLS at him to tell him the truth…I don’t know what more you need.  Having said that, obviously, if the evidence is strong, then yes prejudice isn’t triggered.  These are still the cases, I agree, where you need some discussion from the courts to, once again, clarify that these things fit under Article 31b.

  6. Charlie Gittins says:

    This case is about as far away from Duga as you can get.  It would be nice if the courts would actually interpret the unambiguous words of Article 31(b) in accordance with their plain and clear meaning.

  7. k fischer says:

    And the Gov’s brief seems to make a big deal about this MP augmentee taking off his brassaird (sp?). So, on sentencing I’he heard Soldier’s are Soldiers 24 hours a day, unless I guess you are an MP in the deployed environment where all you have to do is take off your indicia of being an MP investigating a crime, go to your friend’s chu question him about a crime then report it.  MP’s get to shed their status when they do things to screw up the Government’s case.  No doubt this appellant sucks, but I can’t imagine how Article 31 was not violated in this case.

  8. Christian Deichert says:

    Based on what I’m reading here, I don’t know that this is “as far away from Duga as you can get,” but it should be interesting to see if the Court places limits on how far you can stretch Duga.
     
    Let’s start with the exact same facts, except that instead of being an augmentee MP and being assigned to investigate, Ellis was just a regular Joe.  Jones is standing nearby when Carrasquillo attempts to recruit Ellis into the robbery, Ellis thinks he’s kidding.  Then the robbery happens.  Ellis hears about it and goes to CID, and they recruit him as a confidential informant and ask him to go talk to Jones.  The exact same conversation ensues.  I don’t think it’s a stretch to say that this conversation comes in under Duga.
     
    The more I think about this, the more I come back to the fact that Carrasquillo et al. thought so little of Ellis’s status as an augmentee MP that they tried to recruit him into the robbery.  That to me is huge for the government’s argument.

  9. stewie says:

    CD, perhaps, but that status changed IMO when he went and confronted Jones.  I think it also changed when he was assigned to investigate the case.  I can see a path where A31 wouldn’t apply, and certainly the statements by the co-conspirator inviting Ellis in apply, but things change later.
     
    Prejudice dooms the appellant, but IMO the questioning was in violation of Art 31b.

  10. Christian Deichert says:

    But what’s the difference in Jones’s mind whether Ellis was authorized to act as a confidential informant or whether Ellis was an augmentee MP who was off the reservation?  It would appear Jones wasn’t talking to Ellis because he was an MP, Jones was talking to him because Ellis had been part of the crowd and part of the initial conversation about the robbery.  And given that, I think we’re closer to Duga than some folks would like to admit.

  11. stewie says:

    1. He didn’t join the conspiracy
    2. He was yelling at Jones asking him if he did it, that suggests to me he was talking to him because he was an MP
    3. He questioned Jones after being assigned to investigate, same suggestion

  12. af_dc says:

    While I’ve never been particularly impressed by the logic of Duga re: the importance of what the accused was thinking while being questioned, in this instance the yelling is crucial and serves to remove this exchange from the realm of casual conversation and into an interrogation with an MP.

  13. ArmyTC says:

    I’ve enough episodes of “24” to know “DON’T LIE TO ME!” being yelled by soemone is asking you questions about a conspiracy doesn’t end well.I also wonder what this judge was thinking…or the TC for that matter. If the evidence was otherwise overwhelming, why create the appellate issue?

  14. af_dc says:

    Some snippets from Duga that illustrate the gulf between this case and that one:
    – The conversation between the MP and Duga was “more or less buddy-to-buddy talk” and he was “speaking more or less like a friend to a friend, just out of (his) own curiosity”.  As opposed to the Ellis-Jones exchange, which was yelling.
    – Unlike here, the MP in Duga wasn’t actually assigned to investigate the case — he was just asked by OSI to provide them with more information if he could.
    It seems obvious that Ellis certainly suspected Jones and that Ellis was acting in his official capacity at the time of the interrogation. That leaves the squestion of whether or not this was a casual conversation between friends. The standard expressed in Duga is whether or not the accused, from an objective standpoint, “could possibly perceive the interrogation as being official in nature”. Given that Ellis was an MP and was actively yelling and cursing at Jones, it seems more than possible that Jones would have perceived it as an official interrogation.

  15. RKincaid3 says:

    @ CG:  
     

     It would be nice if the courts would actually interpret the unambiguous words of Article 31(b) in accordance with their plain and clear meaning.

     
    Amen.  Isn’t that in fact one of the critical “rules of statutory interpretation–when the words and meaning of legislation are clear, there is nowhere else to go and nothing else to do but apply that plain meaning—NOT MATTER THE CONSEQUENCES?  To allow otherwise is to nullify another plain rule of statutory construction–that a legislative body “shall not be presumed to have done a vain and useless act.”  Judicially crafting exceptions to otherwise plain statutes renders the statute meaningless–and the legislative enactment vain and useless.  That is judicial law making.  And it insulates the problems—doesn’t expose them or the effects of the statute’s plain language—so the statute remains un-amended even when amendment is necessary to avoid a bad effect.
     
    There are soooo many judicially crafted exceptions now to the plain language of Art 31(b) that we largely don’t have an effective Art 31.  The exceptions have largely swallowed the rule.  Some judges like their exceptions–consider that some government lawyers have argued (ultimately and fortunately unsuccessfully) that there should be a “contraband” or “murder scene” exception to the 4th Amendment.
     
    This problem is not unique, unfortunately, to military judges, though.  Consider another example of “judicial lawmaking:” the SCOTUS just this past week drew one hell of a questionable distinction between aggregate campaign limits, upholding aggregate limit on contributions to a single candidate while striking down aggregate limits on contributions to all candidates.  What?  Either the 1st Amendment applies to campaign contributions or it doesn’t. Where in the plain language of the 1st Amendment, or its history, is that distinction supported?  It is not—but it was the result of politics and an inability to enforce what should be a bright-line rule.
     
    Consider also that the SCOTUS has just granted two cell phone cases–one involving an old “dumb phone” (flip phone) and one involving a “smart phone” in the context of law enforcement’s authority to search phones incident to apprehension of the phone’s owner.  Want to bet the SCOTUS in those conjoined cases will use the two cases to take yet another opportunity to draw distinctions where none really matter–losing in the process the substantive meaning and value of the 4th Amendment?  What is the difference between a smart phone’s data and a dumb phone’s data for 1st Amendment search and seizure analysis?  When courage and/or will to apply a rule–no matter the consequences of applying that rule–is lacking and politics is driving the decision, drawing distinctions without a difference is a great way to appear to be doing something important—compromising between extreme positions–while ignoring the critical issue or right at risk and which is lost in the race to distinguish.
     
    Are judges all over the country (both within and without the military) going out of their way to “distinguish” exceptions to the plain language of rules involving substantive rights?  Are they drawing so many distinctions without substantive differences–e.g., one person gets this protection for this reason, but another doesn’t, for that reason–that in the end, what is lost, is the value of equal protection between truly similarly situated people, in addition to an effective Bill of Rights? 
     
    My concern about this problem in the military setting though, is that the military system is so isolated from traditional and normal rules governing “justice” that this phenomenon (or problem) can exist largely unchecked.  It remains largely unchecked because Congress has not instructed the federal civilian courts which on the rare occasion actually do hear military cases to apply traditional justice rules and principles.  This means that when civilian courts do hear the occasional military appeal, they give unrestrained and largely unquestioned “deference” to the military tradition of “rough justice” simply because, absent some clear guidance from Congress to do otherwise, Congress must have meant to allow the departure from tradition as Congress is the ultimate regulator of and rule-maker for the military under the Constitution–an enumerated power with which the Courts are not allowed to interfere short of some clearly unconstitutional action.
     
    Another example: 99% or so of Courts-martial’s are NOT accepted for review by the CAAF, unless someone wants to pay the bill to collaterally challenge the CM in federal court (good luck with that).  And without one’s case being accepted for review by CAAF, the case is un-appealable to the SCOTUS as a matter of a jurisdictional prerequisite.  Thank you Congress, again.  This rule effectively keeps military justice isolated from external review and critique except in the most extreme and unusual cases–and even then–only in an insignificantly small number of cases.  The effect: legislative allowed or mandated injustices within the system (for example, some of the humorously inconsistent NDAA amendments effective 1 Jan 2014), if not corrected by the Military Judge, are not likely to be reversed on internal appeal and cannot be appealed outside the system without lots of money or a special (and itself legally questionable) jurisdictional grant by the SCOTUS.  Military Justice remains largely out of sight and out of mind—unless some political issue du jour—like the myth of rape culture—elevates into the public eye. 
     
    So without systemic reforms, the UCMJ will remain largely isolated from serious external scrutiny—so, at the practitioner level, there will be seen many cases where evidence is seized illegally, or the admission is not suppressed as it should.  Both injustices will occur because the accused is rather to despicable to benefit from some arcane rule or right, and because some Military Judges will “distinguish” the facts from the plain language of the rule or right involved by drawing them where none exist substantively.  And in some of those cases, even if clearly wrong, the Military Judge cleverly avoids reversal on appeal by simply denying the accused the right to appeal by sentencing the accused to less than the appeal-triggering period of confinement, and/or doesn’t adjudge a punitive discharge.  And even in the rare case when the accused can appeal all the way to the highest civilian court—the SCOTUS—they will “defer” to Congressional silence in the area of applying substantive due process–so the military’s traditional “rough justice” will continue to pervade where it can no longer be justified in the 21st Century. 
     
    Military justice largely operates on its own and with very little outside supervision of those beholden to perpetuating and maintain the system—Congress–via commanders and JAGs seeking Congressional approval and promotion.  There are simply not enough checks and balances built into the system–a system rife with opportunities for human failure to manifest within and as part of the system.
     
     
    And lost in that process–justice.  Just something to think about.

  16. Christian Deichert says:

    Rob, I hear you, but I think we have to look at Congress’s intent in writing Article 31.  Congress was concerned about the inherent danger of using rank or position to compel someone to incriminate themselves.  If it were literally applied in every case, there would be no such thing as confidential informants or pretext calls if a servicemember was involved.  And I’m sure I would have loved that when I was a defense counsel, but it’s not a realistic application of the law.
     
    af_dc et al., OK, I’ll concede some ground on the casual conversation versus Jack Bauer impression.
     
    Either way, this should be an interesting one, and it was a good choice for the law school outreach.

  17. RKincaid3 says:

    CD:  Hooah.  Don’t get me wrong–I understand the reason for the current judicially created exceptions to the otherwise plain language and meaning of UCMJ, Art 31(b)–they are necessary to balance the realities of the real world with the legal principles behind the statute consistent with the nation’s history of adhering to legal principles greater than any one individual.  The problem is that the exceptions have hollowed out the statute so that it is devoid of any pretense to adhering to any legal principles greater than any one individual–or cause.  Would such an exception, or so many differing exceptions, that effectively neuter the rule be created in civilian courts or is their existence more evidence of the traditional (and problematic) deference the federal courts have shown the military.  Again, simply rough justice; or a sign of something more problematic and dangerous?  
     
    But, Christian, here is my question:  if the statute, as drafted, does not effectuate Congressional intent–whose job is it to fix the statute?  Clearly not the courts–it’s called separation of powers.  The doctrine of judicial restraint requires the courts to uphold plain language and effect of a statute, which, if not what Congress intended, then the legislature has both a signal of the need for a statutory fix and the opportunity to amend the statute so that it explicitly and specifically codifies all the exceptions that are, according to Congress–not the courts–are necessary to effectuate Congressional intent.  Another principle if statutory construction is that Congress is allowed to be unwise in the exercise of its constitutional power and authority and the courts are not to interfere when Congress decides to be unwise.  The judicially established exceptions to Art 31(b) are examples of judicial wisdom trying to correct Congressional folly.
     
    What we are doing is tolerating courts judicially fixing congressional statutes based upon what the court believes might be an undesirable statutory effect–and that is Congress’s job.  But then again, remember when all the MCIOs were applying the plain language of Art 31(b) and reading alleged rape victims their rights after they made an admission to some offense incidental to making a sex assault allegation?  All the leaders of the MCIOs got called to Congress and got chewed out publicly for–heaven forbid “reading a rape victim her rights.”  And instead of the MCIO leadership standing up to Congress and telling them that is what “YOUR STATUTE, Congress, which you drafted, requires be done.”  Instead many of them stuttered something along the lines of they were wrong and won’t do it again, or pointed to judicial exceptions to Art 31(b) to justify altering investigative practice and now, even when an alleged “rape victim” is caught red handed in a lie, they aren’t being read their rights lest Congress get upset again.  Anyway, go figure—Congress is a problem no matter what–but just because Congress is out of control and wrong doesn’t mean that we should tolerate courts that are, too.
     
    Don’t get me wrong–I am not making a pro-defense objection.  As a matter of policy, to seek to implement justice under rules and process, I would be just as opposed to a pro-defense interpretation by any court if that interpretation so obviously conflicted with the plain language of the statute as do all the various exceptions to Art 31(b).
     
    Really, given all the exceptions, does Art 31(b) really have any substantive or effective value or meaning anymore?  It is doubtful.

  18. Christian Deichert says:

    Well, Congress didn’t seem to have an issue with L.R.M. v. Kastenberg allowing the SVC standing to address the “right to be heard” despite the lack of a statutory basis for SVC standing.  In fact, they liked it so much they codified it after the fact.  Surely their inaction on amending 31(b) after Duga is their way of voicing approval?

  19. Christian Deichert says:

    No, I didn’t type that with a straight face.  But if everything was left to the code, there wouldn’t be much use for more than one appellate judge.

  20. RKincaid3 says:

    CD:  Valid points you make. They prove my point.  The system is hard broke as it serves agendas–not justice.
     
    Congress quickly acts affirmatively to ratify judicial legislating in military justice by amending a statute to specifically codify what the military judges have judicially legislated sans authority (hmmm–curing the separation of powers infringement problem, perhaps?) in the case of expanding victim retribution rights, but in the context of an accused’s right to remain silent, Congress does nothing–literally–implicitly ratifying judicial legislation by silence!   So both congressional action and congressional inaction mean the same thing–approval of military judicial legislating?
     
    I understand that your points are points of debate only and that you not advocating this inconsistent lunacy.  But the fact that we have to debate this lunacy because ir is on display and in practice and is justified by some is so disheartening to one who was naive enough to believe my social studies and civics lessons growing up.  Remember when we were taught about duty, honor, country, the rule of law, balance/separation of powers and due process–where the ends didn’t justify the means–which was a trait of the old Soviet Union, not America?
     
    Not trying to be negative or morose, but it is tough recognizing that to sooooo many people find that our academic school lessons were just that–aspirational and are to be cast off in adulthood when convenient or necessary to achieve a desired result. 
     

  21. stewie says:

    No it doesn’t prove your point, it simply highlights the fact that ANY judicial system is going to have some level of uncertainty because it’s darn near impossible to craft a law that covers every situation, perfectly, unambiguous, and without need for interpretation.
     
    Yes, a long period of inaction after a judicial ruling is effectively Congress saying “you captured our intent.”  I suppose it could also be “we don’t care enough to change this” but effectively that’s the same thing. That’s not “military judicial legislating.” First, it isn’t “military” because the same phenomena happens in state and federal courts all of the time.  It’s the price you pay for humans being involved in the process.  You tend to not get a ton of bright lines that perfectly meet every situation.  Second it is not “legislating.” It’s courts performing the Marbury/Madison function they’ve been doing since 1803.
     
    The system is what Congress says it is.  THAT’s the system.  That’s not to say Congress doesn’t get things “wrong” of judges don’t either.  Wrong being subjective somewhat and objective somewhat (depending on the size of the mass of humans who think it’s wrong).  Due process, rule of law, balance/separation of powers have NEVER been black and white in this country except during civics lessons growing up.  That doesn’t make us Russia.  (This isn’t Russia is it Danny?).
     
     

  22. RKincaid3 says:

    Stewie:  You state:
     

    ” Second it is not “legislating.” It’s courts performing the Marbury/Madison function they’ve been doing since 1803.”
     

    Don’t take this wrong, but you simply don’t get it.  The issue is not congressional silence on judicial matters.  The issue is that judges are NOT applying the much vaunted “rules of statutory construction” because they don’t like the results of applying them–clearly a congressional concern.  If judges would simply apply the rules, then we wouldn’t be having this debate.  And the fact that judges do this nationwide everyday is not a good reason to accept bad conduct from judges failing to follow the ordinary rules of the common law and statutory law. 
     
    And I am not naive.  I understand and recognize that there is generally no black and white.  And I am not stating that we are now the Soviet Union (or Russia, as you called it, either).  And yes, there is a difference between the two.  But it is pretty black and white when a rule says apply the plain and ordinary language of the statute–no matter the consequence–because the plain language is unambiguous, and a judge doesn’t do that because “surely, Congress would not have meant to legislate such an absurd result.”  When that occurs, that is the judge fixing a problem created by the legislature and it IS the definition of judicial law making.  And that IS NOT the Marbury v. Madison function of constitutional analysis, which is a totally different creature and function.
     
    But you are right when you say: 

    “…it’s darn near impossible to craft a law that covers every situation, perfectly, unambiguous, and without need for interpretation…”

    Just look at the mess that is Art 120–a well meaning but totally screwed up statute if there ever was one–designed to capture ALL MANNER OF CONDUCT of a sexual nature and in the process also grabbing all manner of non-sexual conduct.  Clearly Judges have lots of room to “interpret” in that statute because the plain language is anything but clear—it is a wonder of legislative imprecision and ambiguity–precisely to avoid scrutiny of or minimize the issue of consent.  Remember the first screwed up version of 120 in 2007 where they pretty much moved the element of “lack of consent” it to the accused to prove “consent” via the double burden shift?
     
    But unlike Art 120, Art 31(b) is absolutely clear on its face—and in the words it uses.  Its meaning is also clear given the plain words used.  In fact, the ambiguities that exist now exist solely in the totally judicially crafted mess of “interpreting” whether the plain words of the statute actually require an analysis of whether the questioning is the result of official motivation or a personal motivation.  Those are truly distinctions only appreciated by lawyers and judges who are proud of their analytic ability to complicate the obvious  overstate the general in expanding the importance of their own roles in the system.
     
    Is this simply because they don’t like consequences of applying the plain language of the rule at issue and don’t want to wait for Congress to fix it–or ratify it by inaction, or just simply human failure?  In either case, it is unacceptable to simply shrug one’s shoulders and say, “oh, well, that is the way it is.”  
     
    It doesn’t have to be that way.  It can change.  It should change.  Starting with the voters every November.  If this state of affairs is tolerable, it is only because we as a nation and as a people don’t care–not because it is right, correct, proper or even remotely “just.”

  23. stewie says:

    You apply personal things to things that don’t merit them.  Judges are doing what they think is the right answer most of the time.  There are outliers, and certainly just because one thinks they are doing right, doesn’t mean they are.  But it is not the case IMO that judges, collectively, get together and say we don’t like what Congress did, how can we improperly fix it to make it like how we want it?  Instead they struggle to find the right path.  Feel free to say they got it wrong, because they do…frequently.  But you tend “don’t take this wrong” to “conspiracize” stuff.
     
    Simply apply the rules.  They do apply the rules.  That you disagree with them (or me or anyone else) in how they do so is a different manner.
     
    We clearly need folks on here who have a better understanding of movie/pop culture (Google “this isn’t Russia Danny”).  Think an oft-quoted comedy by men starring Chevy Chase and Bill Murray involving golf to realize I know the difference between Russia and the SU.
     
    I find that often when someone argues “the plain language is unambiguous” I end up disagreeing with them.  I find it more rare that Congress comes up with language that is both plain, and unambiguous than the reverse.  I rarely believe that judges are trying to judicially legislate.  I do believe that judges are often trying (with varying degrees of success or failure) to deal with legislation in a way that respects congressional intent while recognizing that said intent is hard to divine out a poorly written law (or a law that just plain didn’t anticipate something that is now in play).
     
    Article 31b is not clear on its face.  All sorts of case law is based on the questions raised by language therein.  What does it mean to be interrogated? What does “tend to incriminate” mean? What does “subject to this chapter” mean? It’s pretty clear now (mostly) because over time we’ve had case law flush out the situations/exceptions and definitions.  We know who is and isn’t subject to the code, what interrogation means, etc.  If it were clear on its face…we’d have precious little case law on it.
     
    I don’t quite know how to respond to your apparent denunciations of lawyers/judges being proud of their analytic ability except to raise the “personal” flag again as I don’t think I’ve ever met an attorney or judge who has made a distinction purely out of pride or a desire to be relevant.  Usually, they do it in the course of representing a client on one side or the other (or settling said disputes).
     
    So your penultimate question/paragraph (very proud of my use of the word penultimate–helps me feel relevant) seems a false dichotomy dressed up in strawman clothing. 
     
     

  24. RKincaid3 says:

    Wow.   I am speechless. The words “penultimate,” “dichotomy,” and “strawman” all used in a single sentence.  And all following the words “conspiricised” and “pop culture” no less.
    Fantastic.
     
    Now, quote a Clint Eastwood film or John Wayne and I’m your huckleberry.  Chevy Chase?   Bill Murray?  You may as well “womp [me] with a knotted plow line.”

  25. stewie says:

    I highly recommend you netflix Caddyshack RK3.  It is always good for a laugh and it will bring your film oeuvre into the late 20th Century.

  26. RKincaid3 says:

     
    Touché, Stewie!  However…time for a confession…I have seen it and didn’t like it.  I rank it up there with Saturday Night Live, Letterman, Carson, Leno, Conan—I just don’t get it.  I also don’t enjoy the Simpsons, or Archer or other pop-culture references. 
     
    But, what else would you expect from a guy who read comic books until his mid to late 20s (and only quit because he didn’t have time to keep collecting them after most of his collection was stolen); still loves Star Trek, westerns and good sci fi (not the crap on the Syfy channel); who now prefers cable original programming to the tripe on broadcast channels; and whose nickname at the JAG grad course (I just recently learned from my wife who learned it from one of my grad course classmates) was “basement boy”–an apparent reference  (also per my wife’s telling) to the fact that I could always be found reading something or other at my study carrel in the TJAGLCS law library in the basement.  And now I shall have to add the word “oeuvre” to my vocabulary arsenal.  
     
     So, if there is a problem with me, you (and everyone else on CAAFlog) now know what it is.   But I am sure that I have more than one problem.  Wordiness…maybe???

  27. stewie says:

    Not liking Caddyshack does pretty much put you in the communist or terrorist? block of people.

  28. RKincaid3 says:

    Ow.   That’ way harsh!   Think I am going to cry!

  29. Christian Deichert says:

    Speaking of Congressional silence and, indirectly, Article 120, we have an interesting issue going up on 62 appeal.  Under the new, new 120, there is a mistake of fact defense as to age when the victim is between 12 and 16, and the statute covers acts like sodomy.  But under article 125 there is no such defense.  The judge granted the defense’s motion and applied it anyway to our case, but paused the case to allow us to take it up for review.  Should be interesting to see how it turns out, and it will answer the question: is it still “legislating” if the court allows the accused to apply the defense when Congress did not specify that they could?
     
    p.s. Rob, you are in fact an infidel for not liking Caddyshack.  It’s like not liking Airplane! (although please note that these statements don’t necessarily apply to either Airplane! 2 or Caddyshack 2).

  30. RKincaid3 says:

    Christian:  But I liked Airplane I as a kid.  Hated all the others.  Hated Wayne’s World and Anchorman, but loved Old School.  Fact is that I have come to admit that I am just weird. 
     
    But fascinating issue you briefed.  As for whether it answers the question, here is my take: it is NOT judicial legislating to decide that a Congressionally drafted ambiguity must favor an accused–in fact–that is how all such ambiguities should (I dare say “SHALL”) be construed and resolved given that our nation’s legal history requires that all are innocent until PROVEN guilty.  As such, any government shortcomings–either in drafting a law or in implementing it should–MUST–necessarily inure to the benefit of an accused.  It is not just a slogan to say that “’tis better that a1000 guilty men go free than 1 innocent man to go to jail–“it is reflective of a substantive  right and expectation of indivduals that in the never-ending battle over the pursuit and preservation of individual liberty, government should, must and shall always have the highest of burdens before liberty is divested from one or more individuals.

  31. Jimmy T says:

    Ellis: I didn’t consider Jones or carrasqueo a friend.
    MJ Finding: Ellis questioned Jones and Carrasqueo because they were his friends and he wanted to see if his friends did it.
    Standard of Review: Take yr pick