The recent unpublished opinion in the Army case of United States v. Lovell, No. 2011006 (A.Ct.Crim.App. Mar. 31, 2014) (link to slip op.) is a fascinating read.
Specialist Lovell pleaded guilty at a special court-martial (without the benefit of a pretrial agreement) to desertion with intent to shirk important service, unauthorized absence, and missing movement by design, in violation of Articles 85, 86, and 87. He then elected to be sentenced by a panel of officer members, and was adjudged a punishment of confinement for 6 months, reduction to E-1 and a bad-conduct discharge. The convening authority approved the sentence as adjudged.
The facts were that:
Appellant deployed with his unit to Iraq from March 2004 through March 2005. When he returned, appellant found his wife had developed an illness which caused seizures and resulted in her inability to drive a car. Appellant asserted that if he deployed again, he feared his wife would be unable to care for their two children, a five-year-old and an eighteen-month-old. Unable to obtain a hardship discharge before his next scheduled deployment, appellant chose to absent himself without leave from his unit on 18 September 2006, thereby missing movement on 1 October 2006, and then remained in desertion until 13 July 2011.
Slip op. at 2. It’s reasonable to feel at least a little sympathy for the situation the appellant faced in 2006. However, the appellant squandered that sympathy when he deserted for the following five years. For the Government, this case was as easy as it gets.
But during voir dire of the panel that determined the sentence, one member (a colonel) said, “I filled out my questionnaire and there’s a matter on there that the court may want to consider and I think it may be grounds for challenge.” Slip op. at 2. The matter was that the Colonel obtained conscientious objector status in 1992. The member was not asked any further questions.
Rather than simply ignore the Colonel’s conscientious objector status (and focus instead on the appellant’s half-decade of desertion) the Government counsel challenged the Colonel for cause, stating:
[H]e’s a conscientious objector. I believe that will apparently skew his — his view of an absence-type offense, especially here where the absence involves what is a to-shirk-hazardous — or shirk important service in Iraq and missing movement and that movement we will explain was to Iraq, that he will unfairly mitigate that — that offense based on his belief he brought into the courtroom today.
Slip op. at 3. The Defense objected but the military judge granted the challenge. That is, “the military judge, without explanation, granted the government’s challenge.” Slip op. at 4 (emphasis added).
In this absence of a record, it’s unsurprising that the CCA finds an abuse of discretion in granting the challenge:
While the law provides a map for this court to follow in evaluating the military judge’s decision regarding a challenge for cause, here we find obstacles the military judge has left in our path. It is not clear from the record whether the military judge granted the challenge based on implied bias or actual bias. She made no assessment of the validity of the government’s position on the record and was equally silent regarding the demeanor of COL WN. In fact, the military judge made no comment at all regarding her decision to grant the causal challenge . We are therefore left to review whether the military judge abused her discretion without any explanation as to how or why that discretion was exercised.
The record indicates COL WN served in the military for over 20 years prior to the time of this court-martial. He was designated a conscientious objector in 1992. The specifics of his designation and the nature of his beliefs are not contained in the record. The government concludes that conscientious objector status alone means COL WN may not serve as a panel member on absence-type related cases because he cannot objectively consider the government’s argument and that he will “mitigate” appellant’s misconduct. While this is certainly one possibility, it is equally likely that COL WN, having gone through a rigorous conscientious objector vetting process, successfully serving over twenty years in the Army, attaining the rank of colonel, and even possibly deploying with the Army might be less favorable towards an accused who refused to follow orders and took it upon himself to absent himself from the military and not deploy.
While we are instructed to give deference to the military judge’s assessment, we have nothing in the record upon which to give deference. The trial judge’s failure to note the reasons for her decision on the record renders it impossible for us to determine the basis for her decision and defer to her judgment. We are also not persuaded by the government’s argument regarding the self-evident lack of objectivity possessed by any conscientious objector. We, therefore, conclude the military judge abused her discretion by granting the challenge for cause.
Slip op. at 7-8.
However, the CCA also notes that the appellant was charged with missing movement by neglect, but that during the plea inquiry he “described knowing full well his unit was deploying and that he intended to miss movement to take care of his young children and ill wife.” Slip op. at 4. After the appellant disavowed the defense of necessity, “the military judge then asked appellant whether he was guilty of missing movement by design rather than by neglect.” Slip op. at 4. The appellant agreed, and he eventually pleaded guilty to the greater offense of missing movement by design.
The CCA is “troubled by the fact that appellant’s plea to a more severe offense was initiated by the military judge.” Slip op. at 8. The CCA determines that “the military judge abused her discretion by not accepting appellant’s original plea to missing movement through neglect,” and it avoids discussion of whether the judge abandoned her impartial role in the process. Slip op. at 8. But the CCA notes “defense counsel’s collusion in this unwarranted amendment.” Slip op. at 9 (emphasis added). The court also notes the contribution of the trial counsel who, “unbeknownst to the military judge, modified the charge sheet striking ‘through neglect’ and writing in ‘by design’ for the Specification of Charge III.” Slip op. at 5 (emphasis added).
The court then concludes:
Ordinarily, in a case such as this, we would remand for a sentence rehearing. Furthermore, if we were to remand for a rehearing, it would be on a lesser offense than originally before the panel. Accordingly, out of judicial economy, we reassess and do so in a way that moots any further claim of prejudice.
The findings of guilty of Charge I and its Specification and Charge II and its specification are AFFIRMED. As to Charge III and its Specification, we AFFIRM only a finding of guilty to the lesser included offense of missing movement through neglect.
Reassessing the sentence based on the noted errors and the amended findings of guilty, we AFFIRM a sentence of no punishment.
Slip op. at 9 (emphasis added).