CAAF will hear oral argument in the Army case of United States v. Carter, No. 14-0792/AR (CAAFlog case page), on Wednesday, February 11, 2015. The case returns CAAF to the issue of application of credit for unlawful pretrial punishment in the wake of United States v. Barnett, 71 M.J. 248 (C.A.A.F. 2012) (CAAFlog case page), with the following issue:

Whether the military judge abused her discretion by preventing defense counsel from presenting facts of appellant’s unlawful pretrial punishment as mitigation evidence at sentencing.

Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of one specification of indecent act in violation of Article 120(k) (2006). He was sentenced to confinement for six months, reduction to E-1, and a bad-conduct discharge. The Army CCA summarily affirmed.

The parties briefs reveal that in advance of trial, the military judge granted Appellant 27 days of confinement credit: two days credit for pretrial confinement served and 25 days credit for unlawful pretrial punishment in violation of Article 13. The finding of pretrial punishment was based upon excessive restrictions placed on Appellant after he was released from pretrial confinement. After Appellant was convicted, the defense counsel attempted to call a witness to testify about the nature of the excessive restrictions as mitigation evidence during the sentencing phase of the court-martial. The Government objected and the military judge sustained the objection, ruling that Appellant should not be allowed to obtain judicial credit for pretrial punishment and then present that same punishment to the members as mitigation. The military judge reasoned:

Under U.S. v. Gammons, it appears as though defense counsel has an option as to how to present that evidence; one of four different ways. I believe that the defense counsel already chose how to present the evidence, and so, it would be inappropriate to allow them to have a second bite at the apple and get credit, as well as try to present it as mitigation.

App. Br. at 4 (citing record). CAAF’s review will determine if the military judge was right, and whether it was appropriate to allow Appellant to “have a second bite at the apple” for credit for the pretrial punishment.

In United States v. Barnett, CAAF unanimously affirmed a military judge’s decision to instruct the members about the existence of judicial credit granted for pretrial punishment after the appellant introduced evidence about that pretrial punishment during sentencing. CAAF held that “once evidence of pretrial punishment was introduced during sentencing by Barnett, ‘in the interests of reliable and truthful sentencing,’ it was within the military judge’s discretion to initially instruct the members of the Article 13 credit and how it would be credited.” 71 M.J. at 252 (quoting United States v. Balboa, 33 M.J. 304, 306 (C.M.A.1991)).

Judge Erdmann wrote for the majority in Barnett, but he also filed a separate opinion concurring with his own majority opinion. This separate opinion discussed the “tactical decision” an accused must make when seeking relief from unlawful pretrial punishment, and the possibility of an accused unjustly receiving double credit:

The “tactical decision” discussed in these cases appears to be whether to request specific Article 13 relief
from the military judge or to present the underlying facts of the illegal pretrial punishment to the members for consideration in determining an appropriate sentence. If, however, an accused were free to pursue both forums, there would be no tactical decision to make. While not specifically discussed in these [prior] cases, the underlying rationale for such a rule may be that if an accused opts to pursue an Article 13 motion before the military judge, the matter has been properly litigated. If the accused is then permitted to present the same evidence in his sentencing case he is re-litigating the legal issue already decided by the military judge and creating the potential for being credited twice for the same government conduct.

I take no position on this matter as it is unnecessary for resolution of the case before us, but in the absence of legislative or administrative clarification, I merely note the issue until it is properly presented to the court.

71 M.J. at 254 (Erdmann, J., special concurrence) (emphasis added). With this background, CAAF’s grant of review in Carter has every indication of an effort by the court address Judge Erdmann’s question directly and determine whether an accused with a pretrial punishment issue must make a tactical decision to either litigate the issue before the military judge or to present it to the members as a factor to be considered during sentencing.

Appellant’s brief argues that the defense need not “make a mutually exclusive choice between an Article 13, UCMJ, motion or presentation of unlawful pretrial punishment to the panel,” App. Br. at 9. In turn, the Government’s brief argues that “having previously received relief for the alleged unlawful pretrial punishment, appellant failed to establish a separate basis for the relevancy of this evidence,” Gov’t Br. at 5.

Appellant’s position can be summarized with two points. First, even though Appellant already received credit from the judge for the pretrial punishment, evidence about the circumstances of the pretrial punishment:

is probative because the sentencing authority should be made aware of all circumstances that could impact sentence determination or provide a foundation for a clemency recommendation, and any potential prejudice to the government in the form of a “double benefit” to accused could be mitigated by a proper instruction to the panel regarding any credit the accused has already received.

App. Br. at 11. Second, because a military judge will provide a proper instruction on how a panel should consider the circumstances of the pretrial punishment:

The decision to make a motion for Article 13, UCMJ, credit or to argue pretrial punishment as mitigation at sentencing, either collectively or to the exclusion of one or the other, is a decision that should be left to defense counsel and accused. As in Barnett, the decision to do both can backfire on the defense, but that risk should be assessed and evaluated by defense as part of their trial strategy.

App. Br. at 15.

In turn, the Government’s argument is that “the proper application of credit for illegal pretrial punishment is a question of law,” Gov’t Br. at 7. Further:

For a number of policy reasons, this court should expressly hold that an accused is the gatekeeper of unlawful pretrial punishment evidence and must choose one method from viable options in which to present such evidence.

Gov’t Br. at 10. These reasons include judicial economy, equity (by avoiding double or negated credit by members), clarity, and preservation of the appropriateness of the remedy by appellate review.

I think that the status quo pretty clearly favors Appellant’s position (as that’s what happened in Barnett), and that the Government’s use of the term “policy reasons” might draw some scrutiny. See United States v. Caldwell, 72 M.J. 137, 143 (C.A.A.F. 2013) (CAAFlog case page) (Ryan, J. dissenting) (“While I question whether punishing either bona fide suicide attempts or suicidal gestures under Article 134, UCMJ, is wise or fair, that is a determination to be made by the President and Congress, not this Court.”). However, this may just be an issue of semantics, as the four reasons identified by the Government appear more pragmatic than policy-based.

But both sides present CAAF with strong, well-reasoned arguments. The only prediction I’m willing to make about CAAF’s resolution of this case is that it will include an opinion authored by Judge Erdmann.

Case Links:
ACCA opinion (summary disposition)
Appellant’s Brief
Appellee’s (Government) brief
Blog post: Argument preview

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