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.

10 Responses to “Is publicity punishment?”

  1. The Silver Fox says:

    No, it’s not.

  2. DCGoneGalt says:

    SF:  I am disappointed you chose to include the “, it’s not.”.  

  3. The Silver Fox says:

    You’re right.  Brevity is key.

  4. stewie says:

    What a weird argument.

  5. Dwight Sullivan says:

    [Standard disclaimer: What I say here is on behalf of myself alone and should not be imputed to DoD or anyone or anything else.]
    This case present an interesting juxtaposition with “United States v. D.W.B.,” a published decision in an Article 62 appeal case in which NMCCA uses the accused’s initials in the caption “to protect the privacy interests of the alleged victim, whose identity would otherwise be apparent.” United States v. D.W.B., __ M.J. __, No. NMCCA 201400359, slip op. at 1 n.1., 2015 WL 795850 (N-M. Ct. Crim. App. Feb. 26, 2015). Of course, the same would be true if Sergeant Major “D.W.B.” were to be convicted; one wonders if NMCCA would use the same approach in an Article 66 appeal case.
    In any event, the effort failed. NMCCA’s website identifies the accused by last name rather than initials when listing the opinion’s name and the hyperlink to the opinion includes the accused’s last name as well.

  6. Phil Cave says:

    My Liege,
    And an interesting juxtaposition with military justice matters in the UK and other countries, with the various rulings regarding “name suppression.”

    How nice there is concern for the reputation of the presumptively innocent.

  7. stewie says:

    But trials are public and there is a first amendment right as well, so not sure how given those two things initials in an interlocutory opinion does any further harm to the reputation.  You’d need closed trials, and no media access to accomplish that, and even then at least in the local community, it would still get out through private routes unless you gagged participants, the victim, their families…

  8. RKincaid3 (RK3PO) says:

    I see no real reason whatsoever why anyone’s name in any judicial proceeding is protected.  As a matter of fundamentally fairness, I utterly disagree with providing anonymity to only one personbutno others.  I see no reason why the alleged “shame” (or whatever reason is offered as an excuse to protect one person’s identity but not others) of being a victim of a crime is somehow anyworse than being publicly accused of having committed a crime.
    Either protect all identities or none.  And while negative publicity may not be legally considered punishment, the stigma from accusation–even, no, especially if false–is palpable and inarguable.
    Just my two cents.

  9. Zeke says:

    Trial courts are public, that is true.  But, it seems to me that the government does not typically publish anything concerning the trial process until guilt has been adjudicated, other than the minimal amount of information necessary to actually facilitate public observation of the proceedings.  The publication of appellate decisions on interlocutory matters is the exception to that rule.  I still don’t think this guy, who ultimately pled guilty, has anything to complain about.  But, an accused person who is never convicted of an offense after the publication of an interlocutory appeal would be differently situated.  I could see why such a person might not appreciate a public opinion being out there concerning an offense they were never found guilty of committing.  I’m not sure how a person in that position would go about trying to remedy that situation, though.

  10. stewie says:

    32s are public as well.  And if it is a media case, the media will be there and will report his name.  If someone is charged with an offense, and again the media is interested, that stuff is going to be made public as well.  I guess my point is that there are a myriad number of ways this stuff can and is made public, that an interlocutory opinion is way down on the list of horribles.