After a contested trial before a general court-martial composed of officer members, the appellant in United States v. Mitchell, No. 20130033 (A. Ct. Crim. App. Oct. 31, 2014) (link to slip op.), was convicted of a number of offenses. Among those convictions was one for wrongful receipt of stolen property of a value of over $500, in violation of Article 134. The specification alleged that the appellant wrongfully received a long list of items stolen from numerous identified individuals.

But Judge Penland, writing for a three-judge panel of the Army CCA, notes that:

The officer panel in this case returned a verdict of guilty to this specification, without exception. However, there was no direct or circumstantial evidence of the following at trial: that appellant received any stolen property belonging to SPC SS, Mrs. KR, or Mrs. JL; that appellant received a stolen Nintendo 3DS and more than two stolen necklaces belonging to Mrs. ET; or that appellant received a Nintendo DS and more than three stolen Nintendo DS video games belonging to LTC PF. The findings of guilty to these portions of Specification 1 of Charge II are wholly unsupported by the evidence and thus legally insufficient. We are left to wonder how the guilty verdict of this specification in its entirety withstood the scrutiny of the military judge, staff judge advocate, and convening authority during post-trial processing.

Slip op. at 2.

10 Responses to “The Army CCA is not amused”

  1. RY says:

    Seen it before.  Every so often a jury glosses over things because exceptions and substitutions seems complex and disfavored by the benchbook instructions.  I’ve had a few cases where there was simply no evidence.  TC knew it as well.  But when it gets to the CA, his staff just highlighted the fact that CA is under no obligation to entertain questions of law.  Secondarily, there’s a bit of a defensive position by the SJA’s office because it doesn’t look good to say we charged something, didn’t prove it, and got a conviction on it.  Consequently, it rarely gets much of a serious review with SJAs, who’d prefer to leave it to appellate review.  Two problems there:
    1) the case may not get appellate review.  The last case I can specifically remember in this area got a sub-jurisdictional sentence and so it got the paper-whipping Art 64 review.
    2) even when there is appellate review finding the error, a chastising by the CCA is too little to late.  When the AFCCA got tired of seeing post-trial action errors taking 2+ years at Kirtland, the SJA had already been promoted and moved on to several other wonderful jobs before the case had a decision.  Even then, they don’t name the folks who messed up and there’s no record anywhere. 

  2. DCGoneGalt says:

    RY:  Pencil whipping?  But Congress and SECDEF have described Art 64 as a co-equal part of the military’s robust system of appeal.  Did you mean to say a robust pencil-whipping?

  3. AF JAG says:

    Just as importantly … where was DC?  Was this argued by DC at trial (I could see a DC not raising at trial – if TC could respond by providing the missing evidence)? Was this raised in clemency matters (this is where DC would raise the issue if they tactically didn’t bring it up at trial)? 
    The failure of DC to do so certainly does not excuse the lack of oversight … but raises additional troubling concerns about the level of representation received by this member.

  4. RY says:

    AF JAG,
     
    Fair questions.  In the cases I recall, it was argued at trial, but ignored by the jury.  Raised again in post-trial memos, considered by both the wing and NAF but ignored as a legal question the GCMCA does not need to weigh in on.  In another case, the GCMCA did take the right action…TC neglected to ask for judicial notice during trial; we did not argue it during trial because it could easily have turned into the jury asking for the missing law, the MJ allowing TC to reopen the case, and admission of the missing evidence.  We raised it in clemency, the wing ignored it, but the NAF agreed.  In the end, it worked in that case.  I mention this because there can be times when DC reasonably does not raise it at trial.  Another example might be where the issue is on a throw away charge of so little value compared to the murder or rape charge that DC does not want to spend a lot of time on it detracting from the more serious concern, only to find a conviction on the silly add-on charge anyway. 

  5. Wonder Not says:

    The CoJ in Mitchell was the DC in the linked case below.  Read into that what you will.
    https://www.jagcnet.army.mil/Portals/Files/ACCAOther.nsf/MOD/10F48E3434FB949F85257A3D006C1FB4/$FILE/mo-dodson,%20jm%20.pdf

  6. Zeke says:

    The mikitary justice system, with panels too small and too homogenous to engage in meaningful deliberations, which also lack the distilling effect of requiring unanimity, will yield wrongful convictions at a greater rate than its civilian counterpart.  Those defects are only amplified by prosecutors who have been statutorily excused of the duty to exercise discretion and, by the manner of their appointment, are not accountable to the People they supposedly represent.  The military justice system once sought to counterbalance those structural infirmities by versting prosecutorial discretion and clemency power in commanders.  That check has been nearly eradicated, however, in recent history by legislation limiting the ability of commanders to exercise either power, and a public relations campaign aimed at demonizing those commanders who do.  The last bulwark to protect the wrongfully convicted is the factual sufficiency review power of the CCAs, which is only applicable in the most serious cases.  It is only a matter of time before efforts are taken to tear away at even that protection.  There is already talk about doing as much in influential circles.  This case is proof positive that doing so is folly and destructive to the ends of justice – if that is indeed the end we seek…

  7. stewie says:

    You sure about that? Would I rather be a black man in a trial in a large city with an overworked PD office, or a black man who is enlisted in a court-martial? I think I’d rather be the latter quite frankly.  My chances of a fair trial would be higher I think.

  8. Zeke says:

    @ stewie:  Your argument raises a false dichotomy.  If I were an enlisted black man, I would prefer to be tried at a court-martial before a panel of 12 members, selected by someone other than the person who levied the charges against me, who were required to be unanimous in order to convict me.  Then, if convicted, I would prefer to have a CCA review my case as a matter of right – regardless of the sentence I received – where my case would be reviewed to determine, in that court’s opinion based on the record, whether the conviction was proven beyond a reasonable doubt.  Mine is not necessarily an argument for civilian trials.  Mine is, however, an argument that courts-martial panels are presently permitted to be too small, too homogenous, and too nonunanimous.  Those characteristics, especially when combined, permit courts-martial to render reliable verdicts.  Being made to stand trial before a panel that is unreliable is a denial of due process of law, whether that trial is before a civilian court or a military court-martial.

  9. Zeke says:

    Errata in second-to-last line of previous post… “Those characteristics, especially when combined, permit courts-martial to render UNreliable verdicts.”

  10. RKincaid3 (RK3PO) says:

    Sigh. I’ve said it before and will say it again: the time has come for the UCMJ to evolve, folks. It needs to evolve into a “justice” system, away from a “disciplinary” system, and definitely AWAY from a tool of political expedience by politicians who seek to use it both to send a political message that is out of touch with reality and as a litmus test for determining which commanders truly desire promotion due to their “toughness” in nailing those who violate the political message.
     
    Calling courts-martial verdicts “UNreliable” is simply a euphemism for an “UNjust” verdict.   But I am glad that others see the problems and are being outspoken about it.
     
    Goog job, all of you who did so!!