Published decision available here. I discussed the Government’s argument, and characterized it as “untenable” in this post.

The CCA finds:

In response to a show cause order from this court and during oral argument, the Government asserted the United States is allowed 60 days from the issuance of our revised order to seek certification to C.A.A.F. The Government generally asserted that The Judge Advocate General could certify this matter for our superior court’s review under Article 67(a)(2), UCMJ, 10 U.S.C. § 867(a)(2). While the Government’s position centered on the post-trial discovery order issued in this case, the Government indicated that all orders from this court are theoretically subject to the same 60-day period during which a party need not comply with this court’s orders if it believes certification to review the order is appropriate. The Government explained it did not seek an enlargement to comply or a stay of the order’s execution because this court’s orders, like its decisions, are not self-executing and thus are not final until this period has run. We disagree.

Slip op at 4. Additionally:

Counsel have an obligation to “comply promptly with all orders and directives of the court.” A.F. STANDARDS FOR CRIM. JUSTICE, Standard 3-5.2(c) (6 June 2013). This court recently made this point clear. See United States v. Bowser, 73 M.J. 889, 899 (A.F. Ct. Crim. App. 2014), aff’d, No. 15-0289/AF (C.A.A.F. 25 March 2015) (“Short of some completely unusual circumstances not present here, the Government simply does not have the authority to choose which orders of a military judge it will follow and which ones it will not, at least not without facing the threat of remedial action or even punishment.”). If the Government did not understand the message of Bowser before, we make the point plain now: counsel appearing before this court have a duty to obey all orders of this court, except in the extraordinary situation where the court issues an order plainly calling for counsel to engage in unlawful or unethical conduct. It matters not whether the Government disagrees with this court’s order or that a “professional disagreement” (as the Government terms it) arises.

Slip op. at 4 (citation omitted). Moreover:

If the Government wishes to seek review of this court’s orders, it may do so. In the meantime, however, all parties must comply with this court’s orders. No “grace period” is permitted during which a party may simply decide not to comply with an order solely because it is considering whether to seek review of the order. We roundly reject the Government’s view that compliance with orders is not required until the time has elapsed for the party to seek appellate review of the order.

Slip op. at 5 (emphasis added). However:

[O]n the eve of oral argument, the Government belatedly provided declarations responsive to this court’s post-trial discovery order. The Government’s belated compliance does not excuse its earlier actions, particularly when it continued to maintain the position at oral argument that it did not need to comply with this court’s order or even seek a stay of the enforcement of the order to pursue its options for further review. The Government had no legal basis to disobey this court’s order, particularly in light of the recent Bowser decision. Bowser, 73 M.J. 889. Nonetheless, we have elected not to dismiss the charges and specifications or hold government counsel in contempt.

Slip op. at 5-6.

38 Responses to “The AFCCA “roundly reject[s]” the Government’s untenable position in Sauk (but does not hold counsel in contempt or dismiss the charges)”

  1. (Former) ArmyTC says:


  2. iKennen says:

    “I am not imposed upon by fine words; I can see what actions mean.”  – George Eliot, The Mill on the Floss

  3. Advocaat says:

    Oh no, double secret probation!

  4. Dew_Process says:

    Perhaps we do indeed need the “gallows . . . .”  SMH!
    The proverbial “Paper Tiger” has yawned . . . .

  5. The Silver Fox says:

  6. Mr. X says:

    Oh, you roundly reject?  Is that how it works? 

  7. ScottComstock says:

    I love a good benchslapping, what are some other good military ones? 
    To be serious, though, is there something inherent about the military and its justice system that makes it as dysfunctional as it is? 

  8. ContractLawyer says:

    Roundly, not soundly.  The word for the day is “roundly.”  

  9. Dew_Process says:

    @ ScottComstock – To answer your second question, in large part it is due to the “Emperor’s New Clothes” SYNDROME.  On paper the system looks good and in theory is an efficient and effective system of justice, with a couple of exceptions, e.g., the Convening Authority hand selecting the members; requiring defense counsel to go “through” the trial counsel to get either subpoenas issued or expert assistance, etc. The problem comes in like this – as the old adage goes, a chain is only as strong as its weakest link. The “weak links” in the military justice system are the inexperience of many of the “middle” and “senior” management in dealing with what has increasingly become, complex litigation, e.g., Art. 120, UCMJ, offenses. Thus, the junior members of the military Bar engaged in prosecuting and defending often fall into “the blind leading the blind” category.
    Add to that, there is also a mindset which is a “relic of a bygone era,” [Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 365 (1973)], viz., that the practice of law in the 21st Century is still capable of being performed by “general practitioners.”  Like the medical profession, that era is long-gone in both the civilian and military legal communities with perhaps the exceptions of federal procurement or environmental law which the military has recognized as “specialties” for many years.  Thus, there is a dearth of truly experienced Field Grade officers (although in my experience, the Army does better than the other services) in criminal litigation regardless of which side of the aisle one happens to be sitting on.
    None of that however, explains what happened in Sauk, which was imho, borderline criminal and in most civilian jurisdictions would have resulted in a referral to the Grievance Committee.  There were senior and experienced appellate litigators handling the case for the government, just as there were many senior and experienced judge advocates sitting at AF CCA which heard the case.  As suggested above, words alone are not going to prove to be a realistic deterrent to prevent this fiasco from repeating itself.
    Rant concluded. Carry on . . . .

  10. Dew_Process says:

    @ ContractLawyer – well, it could have been “squarely” vice “roundly” right?

  11. ResIpsaLoquitur says:

    Well, Susan Burke is back in the news with a new lawsuit:

  12. Dew_Process says:

    Guess she and the POD-man skipped the class on abstention and comity.

  13. Ifonlytherewasagoverningbody says:

    Easy day. Open .pdf of decision. Print. Write cover page to Col Oler’s, etc’s, licensing authority. Place stamp. Mail. Why bother wasting breath about paper tigers?

  14. Andrea Hall says:

    @Ifonlytherewasagoverningbody – not cool to make ethical allegations on a public website. I assume you have no idea what Col Oler’s rationale was, or reasoning, for the government’s response and position in the Sauk case . Please check out the Gallows posting from this past weekend. Also, I am a senior defense counsel so I am obviously not biased towards the government’s position. If you meant to be flippant you failed.
    I was really happy to see Mr. Spillman’s post this past weekend. I have been doing defense work for nearly five years now and I can’t think of one time I have seen opposing counsel do something “wrong” intentionally, or in a malicious manner. From my experience, if something was done I didn’t agree with it was due to inexperience and a call to the senior trial counsel fixed it. Bottom line, I think it would be helpful to everyone if we didn’t assume the worst and instead picked up the phone to have a conversation, or better yet, have a face to face conversation. But definitely not throw anyone under the bus on a public website. Poor taste for sure.

  15. DCGoneGalt says:

    Andrea Hall:  I concur with your point as to the allegations.  If someone has a fact pattern that makes it time for the “E” word then it should be handled within the bodies that are set up for that purpose.  As for the Sauk, we have the oral argument for the case.  We know what the rationale and reasoning was for the Government’s position and “untenable” seems to be an apt description.  It would seem that even the Government came around to realize this at the 11th hour when it provided the material just prior to oral argument.
    IMO, it is only a matter of time until the “E” river is crossed and my money is on it being on a discovery issue.  In fact, if I had to take the parlay bet I would say a MRE 412 issue would be the Rubicon moment.  You seem to have worked with good counsel because in my experience not all senior trial counsel are as willing to “fix it”.  In fact, senior trial counsel and leadership are driving the train on many of the decisions discussed on this website.  For instance, a young CGO is not making the call on whether to roll into a GCM Art 120 motions hearing and litigate discovery issues and then refuse to comply with a court order and/or then appeal that to AFCCA.  
    IMO, people assume the worst because there is a pattern and the issue of Art 120 cases has become politicized.  That is why I believe this issue has come to the fore, because there is now a separate class of cases that are preferred/referred under a different standard (in a practical manner) but no one is allowed to admit it.
    Finally, I think the frustration on the “E” issue in some part festers because there is also a wide-spread belief that the military ethical governing body would do nothing to a government counsel who is playing ball on the “right” side of the issue (that and the fact that many of the STCs/SJAs involved appear to be rewarded in subsequent assignments).  In fact, the one time I was locked and loaded to file a complaint it was a senior JAG that appeared to be behind the decision and it was the not-so-veiled idea of a complaint that led to discovery obligations being met . . . and pronto.  Having that option (going to the State, not the military) serves a “checkmate” purpose to enforce compliance but I agree it is best handled outside CAAFLOG.

  16. stewie says:

    While I tend to be of the it’s usually incompetence not intent side of things, I will agree DCGG that one of the things that infuriates me most about the leadership is that they really do view the government as the “right side” and the defense as much less so.  You see it in promotions.  Too much government crim law time? No such thing.  Too much defense crim law time? Absolutely a thing.  Why is that so?

  17. Ifonlytherewasagoverningbody says:

    @AndreaHall. I apologize for any confusion. My point is simple. If anyone has a *real* concern about a lawyer’s behavior, in this case the counsel of record, gather the evidence and turn it over to a regulatory body. Ask a regulatory body to investigate. Complaining about a lack of accountability when attorneys are unwilling to demand accountability makes no sense. And suggesting that anyone with a problem seek formal redress or hush their mouth is a far cry from the gallows.  
    Seperately, do you really think that reforming this type of government hubris is about making a phone call, talking face to face or inexperience? Really?

  18. RKincaid3 (RK3PO) says:

    Amen, Stewie.  Amen.  There IS absolutely a difference in the mind of too many in leadership that there is a “light” and a “dark” side.  Consider, too, that military judges who are reputed to be too “defense friendly” (read: apply due process limits upon government’s ability to criminalize the conduct of citizens, also known as “civil rights”, a.k.a., independently second guessing the commander’s decision to prosecute with an eye towards “justice” vice “discipline”) are routinely not renewed to the bench as often as their more “harsh,” pro-punishment counterparts.
    The biggest cure for what ails the military justice system is bifurcating the commander’s role as disciplinarian from that of prosecutor.  That, and of course, a Congress that not only understands the military, its culture and history, but also sets rules and drafts laws that actually work justice and not some silly cause du jour (like the SVC program, or the silly classifications of non-sexual human conduct that are now “sex” offenses).  Part and parcel of justice is keeping both sides of the coin (defense and prosecution) zealous, experienced and equally valued.  Doing otherwise begets the mess we now have–which is typical of human nature.
    But there is always tomorrow….

  19. The Silver Fox says:

    I sometimes wonder if the same five guys who post here regularly get together for tea and crumpets each morning.  Your talking points are dead-on consistent.  And no comments about my Lebowski joke?  Come on.  “For your information, the Supreme Court has roundly rejected prior restraint!”

  20. The Silver Fox says:

    This is not Vietnam, this is CAAFLog, there are rules. 

  21. Andrea Hall says:

    @Ifonlytherewasagoverningbody – I too am very troubled by the changes to what we call a military justice system. There seems to be no evidentiary standard for preferral of charges. A preliminary hearing is no longer the thorough investigation an accused previously had. Oh, and did you hear these are sometimes done via VTC now? Wow. I don’t believe one alleged victim has testified at a preliminary hearing since the changes in the rules. And regardless of whether the PHO is a military judge and says there is no probable cause to go forward charges will be referred if that is what the alleged victim wants. It’s tough be a defense counsel right now and tougher to be an accused. I just try not to point fingers at particular people. I am not a smart appellate counsel but I’d love to see PHO recommendations binding. That might restore some of my faith in the process.
    On a side note, even better than the Lebowski joke, did anyone hear about the multiple women making sexual assault and rape allegations against the hot yoga guy? The state of CA investigated but didn’t press charges. Huh.

  22. RKincaid3 (RK3PO) says:

    Sorry, Silver Fox.  I was not a Big Lebowski fan at all.  No, “Oh Brother Where Art Thou?”–that is my kind of movie!
    Andrea Hall: Yep.  Seeking the “truth” of the allegations is no longer a goal of the Art 32.  It was one of the few ways, historically, of testing the convening authority’s judgment in deciding to prosecute a court-martial. All that matters now is PC, but I would like to hear people’s opinions on what should happen when that PC–being a very low standard–but THE only standard that matters–is far outweighed by the preponderance of evidence evincing that the allegation is a lie or based upon lies?  How does one separate them, or can they be separated?  
    Since PC requires some element of believability in the “probability” (a basic search for some semblance of truth??) that misconduct/an offense has occurred, can PC (even though lower than preponderance) that an offense occurred really exist when the preponderance of evidence (much higher than PC) clearly evinces a lack of probability (PC) due to the lack of truthfulness (the quest for which is now specifically and deliberately omitted from the statutory mission, rules and procedures of the Art 32) clearly established by a preponderance of other evidence?
    Or am I letting thinking get in the way of a political agenda?
    Sigh…dumb me.  Time for a refill of the Kool-Aid.

  23. Advocaat says:

    @SF, if AFCCA penned that line with “The Big Lebowski” in mind, it gives the opinion new life for me.  I had a student who cited Judge Judy as authority on a contracts question, and I laughed so hard I had to give her more credit than Prof. Farnsworth likely would have.  And while I understand the government’s procedural stance for originally not complying with AFCCA’s discovery order, I completely missed what the substantive basis for their opposition was if anyone could enlighten me.

  24. DCGoneGalt says:

    Silver Fox:  I got the Big Lebowski reference.  Don’t feel too bad, people often fail to recognize my comedic genius, too.  A few weeks ago I asked Wayne Campbell if TJAG would cert a pro-Govt ruling to CAAF and inserted the link to the Wayne’s World “yeah, right, and monkeys might fly out of my butt.” line to the thundering effect of . . . [crickets chirping].  Perhaps our work (of linking to the work of others) will not be appreciated in our lives but we can’t just dumb it down for the masses, we’re artists.  

  25. k fischer says:

    Silver Fox, 
    My buddies didn’t die face down in the muck, so you could regurgitate Gordon Wood, impress some girls, and embarrass my friend.  I have neither the time nor the inclination to explain myself to a man who raids Barry Manilow’s closet just so you can get the last click out of Junior for spraying skeeter repellent on his feet. Why don’t you jump on the team and come on in for the big win?  You may feel the need for speed, but allow me to recommend the Choco from the Hartz Mountains in Germany because when you shoot it you will know where the extra money went, and if you think big wave surfing is better than sex, then maybe you’re doing it wrong, although love can be wild and contemporaneous, which every thirty seconds makes me want to go “Boom” at the top of my lungs.  So, relax, Sir, I’m a professional, but the next time you quote a movie, remember that one does not applaud the tenor for clearing his throat. And, some folks ’round here like you; I didn’t say me, but some folks.  In closing, you’re right, Silver Fox, I am dangerous, so please excuse me while I make like a tree and get the flock out of here.
    [Free bag of venison jerky for anyone who gets all those movie references, but if you are anonymous, I’ll need your address]

  26. Burt Macklin says:

    1. Big Lebowski
    2. Good Will Hunting
    3. Few Good Men
    4. Breakfast Club
    5. Platoon
    6. Full Metal Jacket
    7. Top Gun
    8. Pulp Fiction
    9. Not sure on the big wave surfing – Point Break? 
    10.  About Last Night
    11. Dangerous Liaisons?  I think.
    12.  Not sure on the some folks ’round here
    13.  Top Gun, again
    13.  Boondock Saints

  27. wowzers says:

    I read with interest this and the ‘Gallows’ topic.
    The JAG community has the same mindset (it appears) as the senior officer community when it comes to assessing and processing blame for things that go wrong: Anyone but us. ‘It’s not our fault, there’s too much inexperience. No one actually meant any harm, these were innocent mistakes. Despite the fact it was our actions and our decisions that resulted in error and/or harm, we have no plan, we have no solution, and we accept no blame.’
    The legal community is in dire need of another lens for viewing these issues. It’s apparent that self-reflection and timely self-evaluation are off the table.
    It’s interesting that we see stories like the Sen. Ted Stevens affair, that we get former prosecutors after retirement or on their death bed telling us how they did unsavory things in the name of promotion and winning cases, get the yammering bias from the likes of Judge Palmer, yet in the here & now, people want to tell us there’s never been a time when errors were due to anything but innocent mistakes or ascribe the ills of the military justice system to inexperience. The only way to reconcile this is that: People are lying, or they are too cowardly to come out with the truth, or too cowardly to provide honest opinions, or a combination of these.
    For Andrea Hall – find out how many times a non-attorney brings up similar issues to government counsel (and convening authorities) and how often such issues are promptly taken care of – when you get the results, you let us know about the ethics and integrity across the hall. I see you add to the sad chorus of ‘don’t say that in public’. 

  28. stewie says:

    As stated many times, the differences between us and civilian prosecutors is that they take years and years before they spin up to a level we throw junior counsel to in some cases within six months to a year of graduating law school.
    We throw CPTs and MAJs into supervisory jobs over those young kids, who themselves have maybe done crim law for a year to 18 months, and MIGHT have done 10 total cases.
    If you think inexperience doesn’t matter in those situations then I have to question your judgment and common sense.
    As for blame, many of us who cite inexperience as a problem ABSOLUTELY have assigned blame…on the leadership and the process that assigns inexperienced counsel and inexperienced leaders to crim law jobs.  We simply place the blame higher up on the food chain than the individual attorney who has 6 months of experience being told X is ok to do by a leader who has 18 months of crim law experience.

  29. k fischer says:

    Your comments will be less and less applicable once the SVP program in all the services take hold the way the Army’s SVP program has.  I remember, TJAG at the time, MG Black’s memo announcing the Army’s implementation of the SVP program, which called for Senior Captain and Major’s to fill 20+ slots for SVP’s.  These aren’t junior counsel 6 months out of law school.  Also, Government Appellate attorneys aren’t generally JAG’s with 6 months experience, either.
    And, it would be nice to know the experience of counsel on both the Government and Defense side of the house who commit violations dealing with ethics.  I agree that sometimes the unique experience of the counsel could show that it was ignorance, rather than a calculated and malicious decision to violate the due process rights of an innocent man to ensure he goes to prison.
    And, as far as senior leaders instructing counsel to do the wrong thing, how do we know that occurred unless an incident is fully investigated.  It seems that finding out if you have a rogue SJA, Deputy, or COJ who is responsible for the actions of numerous trial counsel in their crim law shop would be pretty important to ensure they are not continuing to be poor mentors.  And I disagree that Captains and Majors who have a supervisory role have only done 10 cases.  I’m assuming you mean contested cases, but the rules of Professional Responsibility also apply to guilty pleas.  In my 6 years in the JAG Corps, I tried over 60 cases, with approximately 18 of them being contests, over 20 if you count cases that were dismissed at the Article 32. If we just chalk it up to, “Well, they were just ignorant due to inexperience,” then nothing happens, no message is sent, and potentially innocent people go to Leavenworth.  Junior counsel can explain that they were cleared by a SOCO investigation on every bar application they submit, just the way I have to on every bar application I submit.
    I’m not saying that I’m going to be the one itching to file a SOCO complaint, but I have made highly questionable Government action known to my supervisor when I was TDS or the Military Judge when I believed it will benefit my client.  I also operate under the “But for the grace of God go I” standard and believe that most counsel are trying to do the right thing, but there is always a first time.  Also, I’ve learned to give counsel and a military judge the opportunity to do the right thing when their actions were discovered by going to them first and allowing them to dismiss the charges or recuse themselves from the trial.
    But, I think one of Wowsers points is that the JAG community focuses on protecting itself to the detriment of the Accused who deserves the appearance of a fair trial.  Some of the actions with the Marine Corps, the Air Force, POTUS, and Congress has eroded that appearance, and it is time that the some lawyers and military judges trying cases tighten up their shot group and focus not solely on giving the Accused a fair trial, but giving the Accused the appearance of a fair trial, as well.

  30. k fischer says:

    Very close, but no venison jerky.  Good job, though.  Your movie quote identification skills are quite impressive, indeed.

  31. stewie says:

    I think the SVP program can actually hurt experience in some cases.  I think many of the Army SVPs are fairly experienced…although not sure all of them are as experienced as perhaps you’d want but certainly would not say any of them are inexperienced that I’m aware of.  However, some of them tend to dominate the SA cases.  That leaves little experience to be gathered by the rest of the crim law shop.  That’s not really building a pool of folks to be the next SVPs (or COJs or STCs).
    There are plenty of appellate attorneys who are only on their second tour. 
    I think we are not comparing this to the civilian world properly.  Civilian criminal law attorneys can take a decade of continuous court-room experience or more to get where we place people who have 1/3 to 1/2 that time.  I want to make sure the accused has a fair trial…and I’d like the perception be universal that that in fact happens.  Having said that, I’m not willing to sacrifice some young CPTs to make that happen.  I’d rather push for the more senior folks to recognize the problems and work to create a system that increases the value of crim law expertise on both sides of the aisle.

  32. k fischer says:

    Burt Macklin,
    I was going to send you some venison jerky because you were the closest, so I googled “Burt Macklin military attorney.”  Awesome.  So, your moniker is an FBI character that a character on a TV show plays who is from Pawnee Indiana by a real person who lives in Hollywood.  I must have missed that season of Parks and Recreation, but Andy Dwyer is hilarious.
    I have no idea where to send any jerky, so you’re not getting any jerky, Jerky.  Unless you google me and e-mail me your address.

  33. stewie says:

    Season? Burt Macklin has been in almost all of the seasons of Parks and Rec.  Although he was mostly usurped by Johnny Karate (and his older brother Jonathan Karate) in the last season.

  34. Burt Macklin says:

    Burt Macklin, FBI.  The best damn agent they had, until I was framed for a crime I didn’t commit:  stealing the President’s rubies.
    No worries on the jerky.  As noted by one of the great RIO’s of all time, Slider:  no points for second place.

  35. k fischer says:

    If all military counsel were clones of you, then we probably wouldn’t be having this conversation. That was a compliment, by the way.  
    Very astute point regarding the SVP program usurping experience from junior counsel, but there is always the Brigade’s TC sitting second chair.  And the SVP’s who have been an SVP for at least a year should have some great experience prosecuting sexual assault, so the second chair could take really good notes.  Well see how that plays out in the future, though.  I think you might be on to something.  

  36. iKennen says:

    Dew Process said:

    The proverbial “Paper Tiger” has yawned . . . .

    I don’t view AFCCA’s opinion in that way.  AFCCA’s decision names the government counsel, dismisses their arguments (“roundly” or otherwise), and states emphatically that the government had no legal basis to not comply with the Court’s order (i.e., that government counsel’s actions were illegal).  Then, the Court published that decision.  I don’t see that as being “Paper Tiger” action.  Finding that a military member was given an order, failed to obey it, and had no legal justification for so failing is a big deal.  Some might call it a crime.  Publishing that finding is, therefore, I think, a big deal.  That’s why I quoted Eliot earlier – “I am not imposed upon by fine words; I can see what actions mean.”  The Court saw through government counsel’s fine words.  (I thought the oral argument, despite the “untenable” position taken, was delivered about as well as it could have been.)  AFCCA saw through those fine words to see the government’s actions as they truly were – plainly and undeniably illegal.  It is to the Court’s credit that it made that finding a published decision.  That being said, I would have liked to have seen Sauk glean some benefit from the government’s misbehavior.  The traditional way of punishing the government for illegal action is to provide the accused/appellant some benefit.  That’s what truly brings deterrence.

  37. stewie says:

    Cloning is illegal at Bushwood Sir! (and I never slice).

  38. Dew_Process says:

    @ iKennen:

    I would have liked to have seen Sauk glean some benefit from the government’s misbehavior.  The traditional way of punishing the government for illegal action is to provide the accused/appellant some benefit.  That’s what truly brings deterrence.

    I think we’re pretty much saying the same thing using different semantics.  I used the term PAPER TIGER in the context that “shaming” via publicizing names does nothing and thus the CCA was “something that appears powerful or dangerous but is not.”