After he was acquitted of fraud charges by a New York jury in 1987, the New York Times quoted former Labor Secretary Ray Donovan as asking: “Which office do I go to to get my reputation back? Who will reimburse my company for the economic jail it has been in for two and a half years?”
Recently the NMCCA addressed an appellant’s contention (raised in his personal capacity, pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1992)), that the CCA’s online publication of that court’s interlocutory opinion in his case “breached his expectation of privacy, damaged his reputation, impeded his presumption of innocence, and constituted unlawful pretrial punishment.” United States v. Schaleger, No. 201300247 (N-M. Ct. Crim. App. Feb. 19, 2015) (link to slip op.).
I discussed the CCA’s interlocutory opinion in this post. The CCA granted a Government petition for extraordinary relief in the form of a writ of mandamus, finding that the military judge erred in ruling that the maximum punishment for sexual assault in violation of Article 120(b) (2012) was the jurisdictional limit of a summary court-martial. In a lengthy published opinion, the CCA concluded that “at the time the offenses were allegedly committed, the authorized punishment included a dishonorable discharge and confinement for at least 30 years.” United States v. Booker, 72 M.J. 787, 807 (N-M. Ct. Crim. App. 2013).
After the interlocutory issue was resolved, the appellant pleaded guilty to one specification of sexual assault in violation of Article 120. The same military judge whose ruling was reversed by the CCA sentenced the appellant to confinement for three years, reduction to E-1, and a bad-conduct discharge. Pursuant to a pretrial agreement, all confinement in excess of 13 months was suspended by the convening authority.
The appellant’s guilty plea makes his case very different from Ray Donovan’s acquittal. But the CCA analyzes his claim of injury in two parts: Whether its interlocutory opinion affected the presumption of innocence, and whether it constituted unlawful pretrial punishment.
On the issue of the presumption of innocence, the CCA highlights that “so long as a plea is voluntary and provident, to include notice to the appellant that entering a guilty plea relinquishes the right to presumption of innocence, an appellant has no standing to appeal a violation of that presumption.” Slip op. at 3 (citing Iowa v. Tovar, 541 U.S. 77, 83 (2004)). But the court also notes that:
The appellant raises no evidence to prove, and the record of trial contains no evidence to support, the notion that the plea was involuntary or improvident. Further, the interlocutory opinion utilizes unassuming words such as “allegations” and “alleged offense,” refers to the appellant as “Petty Officer” or “the Real Party,” and its primary focus is on statutory interpretation and history, with very minimal discussion of the facts of the appellant’s case.
Slip op. at 4.
On the issue of unlawful pretrial punishment, the court finds no grounds for relief. In particular, the court:
[F]ind[s] that the appellant failed to meet his burden to show that he had a reasonable expectation of privacy, that such an expectation was violated by this court’s opinion, or that this court’s opinion unfairly damaged his reputation. Absent extenuating circumstances, our courts-martial are open to the public. E.g. ABC, Inc. v. Powell, 47 M.J. 363, 365 (C.A.A.F. 1997). RULE FOR COURTS-MARTIAL 806(a), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.). Trial proceedings involve discussion of facts on the merits, which inevitably leads to eliciting details about an accused’s life. To avoid that reality would make the criminal justice system unworkable.
Slip op. at 5.