We don’t know everything about United States v. Sauk, the case in which the Air Force Court of Criminal Appeals (AFCCA) held an en banc oral argument last week to determine if the Government counsel should be held in contempt for failing to respond to a post-trial discovery order issued by the AFCCA. But I think we know enough to conclude that the Government’s position is untenable.
Note: I use the pronoun “we” because this post is based on the CCA’s initial opinion, its oral argument order, the oral argument audio, and other matters of public record. I have no other knowledge of the Sauk case and I have not discussed it with any of the counsel involved.
Here are the facts as we know them.
The appellant was convicted in 2013, by a general court-martial composed of members with enlisted representation, of involuntary manslaughter, aggravated assault, assault, and negligent homicide, all in connection with the death of the appellant’s infant son. The appellant was sentenced to confinement for five years, reduction to E-1, and a bad-conduct discharge.
In an opinion dated January 20, 2015 (available here), a three-judge panel of the AFCCA rejected numerous assignments of error (including assertions of factual and legal insufficiency) but it dismissed the aggravated assault, assault, and negligent homicide charges on the basis that they were charged in the alternative, citing United States v. Elespuru, 73 M.J. 326 (C.A.A.F. 2014) (CAAFlog case page). The panel then approved the adjudged sentence.
Two days later, the appellant moved to compel post-trial discovery on the basis that a report released by the Department of Defense Inspector General (available here) found significant deficiencies in military criminal investigations of child death cases. The appellant’s motion sought production of documents related to the organizations that investigated the death of his son.
The Government opposed the appellant’s motion for post-trial discovery. The Government also sought reconsideration of the AFCCA’s dismissal of the aggravated assault, assault, and negligent homicide charges.
On February 2, 2015, the AFCCA granted the appellant’s motion for post-trial discovery in part, ordering the Government to disclose whether the appellant was referenced in investigations returned to Air Force investigators. The Government was to comply no later than February 17, 2015. The AFCCA did not act – and still has not acted – on the Government’s request for reconsideration of the dismissal of the offenses charged in the alternative.
The Government sought reconsideration and en banc consideration of the AFCCA’s discovery order. The AFCCA denied that request, notifying the parties of that denial on February 13, 2015. It then extended the deadline for the Government to comply with the order to February 20, 2015.
On February 20, 2015, the Government did not comply with the AFCCA’s order. Rather, it informed the AFCCA that it was considering asking the Judge Advocate General of the Air Force to certify the case to CAAF pursuant to the authority granted by Article 67(a)(2). The appellant responded by asking the AFCCA to set aside the conviction based on the Government’s refusal to comply with the AFCCA’s order. The AFCCA then ordered the Government to show cause by March 3, 2015, why the appellant’s request to set aside the conviction should not be granted.
The Government responded to the show cause order by again asserting that the Judge Advocate General of the Air Force could certify the case, and it claimed that it was allowed 60 days to pursue that certification (a claim that is apparently based on the 60-day deadline in CAAF’s Rule 19(b)(3)). The Government also renewed its previously-denied request for reconsideration of the post-trial discovery order.
Then, on March 6, 2015, the AFCCA issued an order (available here) scheduling oral argument to determine whether the case should be dismissed or whether the Government counsel should be held in contempt. The order provided the above-detailed procedural history of the case.
The argument was held on March 10, 2015. The argument was exclusively a presentation by Government counsel, as the appellant’s counsel elected to make no argument.
But the Government’s presentation was astonishing.
The oral argument began with an announcement from the bench that the Government complied with the AFCCA’s production order the day before the argument, by filing “two declarations that are responsive to the post-trial discovery order, indicating the appellant’s investigation was not one which DoD IG found contained significant deficiencies.” A 27 second clip of that announcement is available here.
Government counsel then took the podium, and insisted that “the United States has never intended to convey any disrespect or contempt to this court in this case or in any case.” Rather, Government counsel styled the issue as one of mere “professional disagreement” with the AFCCA, and he noted that over the past eight years the Judge Advocate General of the Air Force had certified approximately 26 cases to CAAF, representing “roughly about 1% of this court’s actions.” A 1 minute and 19 second clip of that statement is available here.
Yet the claim of only a 1% certification rate is awfully misleading. A significant number of the AFCCA’s actions in a given year are summary affirmations after an appellant asserted no errors (these are known as “merits” decisions, because they were submitted for review “on the merits”). Consider, for example, calendar year 2011: The AFCCA’s website shows 280 actions that year, consisting of 6 published decisions, 83 unpublished decisions, 36 orders, 4 Article 62 appeals, and 151 merits cases. So, in 2011, a majority (53.9%) of the AFCCA’s actions were merits affirmations, for which it’s hard to see any basis whatsoever for “professional disagreement” by the Government.
Moreover, in any given year the Government wins (that is, its position prevails) in the overwhelming majority of cases decided by the AFCCA on substantive grounds, and meaningful relief for an individual appellant is rare. It’s hard to see any basis whatsoever for “professional disagreement” by the Government when the Government gets what it wants.
But issues of arithmetic aside, while Government counsel styled the Government’s position in Sauk as merely a “professional disagreement” with the AFCCA, the reality is that the Government’s position is one of pure hubris.
Government counsel asserted that:
Your honor, I respectfully submit that this court has to recognize the statutory authority provided by Congress and as implemented by CAAF’s 60-day rule in – in functioning of this court’s authority. That is the law, and that’s all we ever sought to do here was really assert the law. We were never intending any nefarious conduct. We were open and upfront with the court, telling the court in a timely manner what we were doing. But our view is this court has to take into account TJAG’s statutory authority. And it’s not limited by any caselaw to any particular kind of case or posture of the case. There’s no such limitation present in the law.
A 41 second clip of this statement is available here (it began about 10 minutes and 45 seconds into the argument recording).
The Government’s position thus amounts to a claim that the AFCCA cannot order the Government to do something without allowing the Government a 60-day period to seek certification by the JAG.
There are three fundamental flaws with this position.
The first fundamental flaw is that it contravenes “the basic proposition that all orders and judgments of courts must be complied with promptly.” Maness v. Meyers, 419 U.S. 449, 458 (1975). In Maness, the Supreme Court explained that:
If a person to whom a court directs an order believes that order is incorrect, the remedy is to appeal, but, absent a stay, he must comply promptly with the order pending appeal. Persons who make private determinations of the law and refuse to obey an order generally risk criminal contempt even if the order is ultimately ruled incorrect.
Id. And the Court highlighted that:
We have consistently held that the necessity for expedition in the administration of the criminal law justifies putting one who seeks to resist the production of desired information to a choice between compliance with a trial court’s order to produce prior to any review of that order and resistance to that order, with the concomitant possibility of an adjudication of contempt if his claims are rejected on appeal.
Id. at 460 (quoting United States v. Ryan, 402 U.S. 530, 532-533 (1971)) (emphasis added).
Of course, the certification power is unique to military justice, while the precedent discussed above implicates the separate jurisdiction of the federal courts to entertain appeals of interlocutory or final decisions of the district courts. See 28 U.S.C. §§ 1291, 1292. But there is nothing about the basic proposition stated in Maness – a proposition that is “generally recognized in the trial of criminal cases in the United States district courts” (see Article 36(a)) – that is unworkable in the context of certification. Put simply, absent a stay or other relief, the Government has the duty to comply promptly with an order from any court, including the AFCCA, and the Government’s refusal to comply promptly in Sauk rightly risked a finding of contempt.
Yet the unique nature of certification raises the second fundamental flaw in the Government’s position.
CAAF’s rule providing for a 60-day period for certification is anomalous. Article 67 states that CAAF “shall review the record” in all cases certified by a JAG, and it puts no time limit on a JAG’s decision to certify. Further, CAAF’s judge-made time limit for certification stands in stark contrast to the 60-day statutory time limit on an individual appellant’s petition for review by CAAF under Article 67(b) – a limit that CAAF held is jurisdictional in United States v. Rodriguez, 67 M.J. 110 (C.A.A.F. 2009).
CAAF’s 60-day rule has been the subject of scrutiny from the beginning. See Robert Mummey, Judicial Limitations Upon a Statutory Right: The Power of the Judge Advocate General to Certify Under Article 67(b)(2), 12 Mil. L. Rev. 193 (1961) (available here). But whether or not the rule is appropriate, it is plenty flexible, as CAAF granted an extension of time to file a certificate of review as recently as 2012 (in an Air Force case, coincidentally). Since the 60-rule for certifications is not a binding deadline on CAAF, it can hardly be said to impose the binding period of suspension on actions of the Courts of Criminal Appeals that the Government seeks in Sauk. Put differently, Congress created the right to certify, but it did not create any timeline (minimum or maximum) on the exercise of that right.
There’s also absolutely nothing that prevents a JAG from certifying a case to CAAF in less than 60 days. In fact, such diligence would be entirely consistent with the Supreme Court’s emphasis on “the necessity for expedition in the administration of the criminal law.” Maness, 419 U.S. at 460. Yet the Government was downright lackadaisical in its approach in Sauk. The AFCCA’s oral argument order reveals that:
on the date by which the court had ordered it to provide post-trial discovery, the government filed a “motion for leave to file response.” The government’s motion expressed its disagreement with this court’s post-trial discovery order and indicated the government was considering “whether to accept this Court’s decision or to pursue it further by way of certification to our superior Court.”
(emphases added). Assuming this means what it says, then the Government didn’t actually ask the JAG to certify Sauk to CAAF before it failed to comply with the AFCCA’s order. Rather, the Government merely “indicated” to the AFCCA that it was “considering” whether to “pursue” certification.
Of course, certification is not the exclusive province of the Government; there is nothing that prevents an individual appellant from seeking certification. The AFCCA highlighted this fact during the oral argument:
Judge: TJAG certification is not the exclusive province of the Government. Of course the defense can seek TJAG certification of an issue. So is it the Government’s position that if we issue an order to appellate defense then likewise the appellate defense need not comply with that order for a period of 60 days?
Gov’t Counsel: I can’t create a rule for the Government and a rule for the defense your honor. I cannot. That’s simply not a logical position for me to take.
Judge: So if we grant the defense an enlargement of 15 days to file a brief instead of the 30 requested, the appellate defense can take 60 days to file its brief because it has that period to consider whether it’s going to seek TJAG certification of that issue?
Gov’t Counsel: I suppose that’s theoretically possibly but, with respect, highly, highly impractical that anybody would request a TJAG certificate of review under those circumstances. Could it theoretically be done? I have to maintain yes, but it’s really difficult for me to envision that scenario ever playing out.
A 63 second clip of this exchange is available here (it began about 13 minutes and 45 seconds into the argument recording).
Here the Government’s hubris is really on display. Certifications by the Judge Advocate General of the Air Force are so lopsided in favor of the Government that last year I was compelled to write about the appearance of bias in the certification of cases by the Judge Advocate General of the Air Force. Undoubtedly, it is “really difficult” for Government counsel to envision an appellate defense counsel seeking certification of a denial of an enlargement of time because he – and everyone else – knows that such a request will be denied.
The third fundamental flaw in the Government’s position was exposed by this exchange at the oral argument:
Judge: The Government has now submitted what we believe are responsive affidavits or declarations to the discovery order. In the Government’s position, is there anything that now keeps this court from issuing a decision under Article 66 in this matter?
Gov’t Counsel: No your honor. We’re here to say that by our decision in admitting these documents the appellate discovery issue is now mooted.
A 23 second clip of this exchange is available here (it began about 27 minutes and 40 seconds into the argument recording).
We see from this exchange that when faced with the slightest measure of real opposition from the AFCCA, the Government folded like a cheap suit.
Rule 3.1 of the Air Force Rules of Professional Conduct comes to mind:
Rule 3.1. MERITORIOUS CLAIMS AND CONTENTIONS
(a) A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the accused in a criminal proceeding, or the respondent in a proceeding that could result in incarceration or discharge, may nevertheless so defend the proceeding as to require that every element of the case be established.
(b) A lawyer does not violate this rule by raising issues in good faith reliance upon court precedent.
Now to be clear, I do not think the actions of Government counsel in this case were unethical. Rather, I think that they were unwise.
But the standard for meritorious claims and contentions provides a valuable metric by which we can evaluate the Government’s position. I think it’s reasonable to expect that the Government would pursue a meritorious claim with more tenacity than shown in Sauk.
Let’s also not lose sight of what’s at stake. The appellant was convicted of causing the death of his infant son, but he maintains his innocence. The Government’s own review discovered “significant deficiencies” in military criminal child death investigations, including “key evidence not being collected, crime scenes not examined, and witness or subject interviews not conducted or not thorough.” Memorandum of the Deputy Inspector General dated Dec. 22, 2014. The appellant sought to determine if those deficiencies affected the investigation that led to his conviction. In response, the Government stonewalled.
It stonewalled when it could have so easily acknowledged, as it belatedly did, that the Inspector General did not find significant deficiencies in the investigation into the death of the appellant’s son. This is a fact so favorable to the Government that any other litigant in the same position would rush to disclose it, regardless of the stage of the proceedings.
Talk about snatching defeat from the jaws of victory. Is it any wonder that the chorus of voices criticizing the military justice system only grows louder each year?
The proper response to the Government’s position in Sauk is a difficult question. So far, the AFCCA’s response has been little more than saber noise. Whether the AFCCA or some other authority will (or should) do more is a question that undoubtedly requires a lot of reflection and soul-searching.
But I think one thing is certain:
People simply cannot have the luxury of knowing that they have a right to contest the correctness of the judge’s order in deciding whether to willfully disobey it. That is an awesome act and it sets in train awesome responsibilities. Court orders have to be obeyed until they are reversed or set aside in an orderly fashion.
Southern Railway Co. v. Lanham, 408 F.2d 348, 350 (5th Cir. 1969) (Brown, C. J., dissenting from denial of rehearing en banc).