In a published decision in United States v. Chandler, __ M.J. __, No. 20120680 (A. Ct. Crim. App. Apr. 7, 2015) (link to slip op.), the Army CCA finds that a military judge improperly held a post-trial proceeding in revision for the purpose of giving corrected instructions to the members, and allowing them to deliberate anew, on the findings.

The judge improperly instructed the panel on the defense of mistake of fact as to the nature of property at issue in an alleged conspiracy to commit larceny, giving the general intent mistake instruction (requiring that the mistake be objectively reasonable) instead of the specific intent mistake instruction (requiring only that the mistake actually exist). The appellant was then convicted. But the judge realized the mistake when authenticating the record, and ordered a proceeding in revision under R.C.M. 1102, stating:

My proposal will be to reinstruct the members and direct them to once again deliberate on findings in light of the corrected instruction. I will also give counsel an opportunity to re-argue on findings in light of the corrected instruction. Obviously, if there are different findings, the members will also deliberate and vote on a new sentence, provided the accused is found guilty of any offense.

Slip op. at 7. The proceeding occurred, the members were properly instructed, and they again convicted the appellant. But the CCA finds that the post-trial proceeding was void ab initio:

We can think of no matters more substantive than the defenses potentially applicable to a servicemember facing court -martial. Instead of resolving an administrative matter, the post -trial proceeding here more closely resembled a rehearing, but with the same panel—which the judge had no authority to order. The military judge likely understood that his approach was somewhat akin to a rehearing, as he invoked the sentence limitations provisions of R.C.M. 810(d). The hearing could also be viewed as a flawed attempt at reconsideration of findings, for which R.C.M. 924 governs. Contrary to R.C.M. 924, the proceeding occurred after the panel unambiguously announced findings on 10 July 2012, and it occurred at the military judge’s direction instead of a panel member’s proposal.

We endorse initiative-taking by military judges. Such an approach is crucial in our justice system, which favors resolution of disputed issues at trial. We also understand the desire for quickly reaching a solution in the field, instead of waiting for a convening authority or an appellate court to order the same solution. However, our system’s range of post-trial remedies does not include remand to an original finder of fact in order to cure instructional error. This limitation is understandable, since one cannot reasonably expect panel members to set aside their original findings and deliberate anew. Put another way, as the post -trial proceeding began in this case, it was far more likely that the panel would simply validate its earlier findings of guilt; we cannot affirm such a process. Instead, we conclude the military judge erred in directing a proceeding in revision for the purposes of correcting erroneous instructions and directing the same panel to deliberate again. We regard this proceeding as void ab initio under the circumstances and need not address additional procedural peculiarities, including the military judge’s emailing a redacted record of trial to the panel and his denying the defense request to voir dire the panel.

Slip op. at 15-16. Nevertheless, the CCA finds the instructional error harmless.

11 Responses to “The Army CCA “endorse[s] initiative-taking by military judges”; but not this much initiative”

  1. Brian Bouffard says:

    “We can think of no matters more substantive than the defenses potentially applicable to a servicemember facing court-martial,” and an erroneous instruction on an affirmative defense is an error of “Constitutional magnitude.”
    Aaaaaaand, it’s “harmless.”  Nice “work,” ACCA.

  2. k fischer says:

    Of course it’s harmless.  The panel, after receiving the correct instruction, deliberated again and still convicted him.  Of course, ACCA did not consider that at all because that re-hearing on findings was a nullity. 
    This is a pretty interesting opinion that cements in the Army that once panel members announce findings, the MJ is stuck with the decision and it would be improper to take the decision out of the panels hands even when there are errors of a constitutional magnitude.  
    Sounds like a pretty crazy case.  

  3. Zachary D Spilman says:

    I’m going to side with the ACCA on this issue Brian Bouffard. Here’s why:

    Instructions are the most important part of a court-martial with members. They’re the part of the trial where a neutral and detached participant tells the members what they must do and how they must do it (commands that both a jury and a panel are presumed to obey, but a panel is uniquely qualified to obey because of the military environment).

    In this case the defense requested the specific intent instruction and the judge agreed to give that instruction, however the judge actually gave the general intent instruction. Despite this error, it seems that the defense did nothing: No objection, no request for clarification, and no argument to the panel about the instruction. It seemingly passed unnoticed, until months later when the judge read the record, saw the error, and tried to correct it.

    Unfortunately, we don’t have the benefit of the entire record to inform our understanding of what happened during this trial. But we do have some significant data points:

    First, the CCA’s opinion gives no indication that the defense of mistake of fact was a central (or even major) theme in the defense of this case. Of course that doesn’t mean it wasn’t presented, but…

    Second, the CCA’s opinion includes this:

    Indeed, the evidence at trial did not focus on whether appellant reasonably believed the property was abandoned or belonged to PVT Solt. Instead, the slight evidence of mistake in this case was immediately subject to overwhelming questions about whether such a purported mistake was honest. The evidence of appellant’s knowledge that the property actually belonged to the Army and that the Army had not abandoned the property was overwhelming. 

    Slip op. at 17. It doesn’t require much interpretation to read that paragraph as meaning that the defense of mistake of fact was a loser in this case, and that everyone knew it.

    Finally, the appellant asserted ineffective assistance of counsel for other reasons but not for this (unless it’s buried in the Grostefon matters). That indicates that even the appellant realizes that the mistake of fact defense was a loser. Which is to say that there is “no reasonable possibility that the [instruction] complained of might have contributed to the conviction.” Chapman v. California, 386 U.S. 18, 24 (1967) (quoting Fahy v. Connecticut, 375 U.S. 85, 86 (1963)) (defining harmlessness).

  4. Phil Cave says:

    Had this case reached ACCA without the MJ’s action, and it been caught and briefed, could not ACCA have found error, but that it was harmless beyond reasonable doubt.  So on the underlying questions I’m not troubled about the actual result.
    A military judge has the duty, sua sponte, to give correct instructions, apparently he didn’t, and that relieves DC from IAC in my view on that particular issue.
    What is more troubling is the underlying assumption by the parties at trial, and for that matter on appeal, that members follow and are able to follow instructions in such a situation.  In other words I’m not satisfied with how real life and psychology is resolved.  I do not agree that a panel of members in this case could change their minds.  There are too many psychological principles at work.  I might add I agree that this may be viewed as my skepticism about the whole concept of “curative” or “limiting” instructions.  In this regard the law is an ostrich too frequently.  Or I suppose the courts are.  The research on this problem seems to be pretty good that members have trouble following instructions, yet we maintain the quaint notion that they will in almost all circumstances.  You remember the Paul Newman movie, “The Verdict.”  (In thinking about postings it seems necessary to make a movie or a sports or a music reference.)

  5. Zachary D Spilman says:

    Good point on the IAC issue Phil Cave. And it would be much easier for the appellant to win relief for judicial error (under a plain error analysis) than for IAC (under a Strickland analysis).

    My IAC point was focused more on the argument that (it appears) the defense didn’t present, as that goes to show the harmlessness of the instructional error. When defense counsel paid so little attention to the defense of mistake that the erroneous instruction passed unnoticed, it’s hard to argue that a proper instruction would have changed the result. 

  6. Charlie Gittins says:

    I agree instructions are the most important part of the case in a members case.  I always started my trial preparation with the questions:  1)  What instructions must I have in light of my defenser and 2) which instructions do I expect, based on how I expected the evidence to come out at trial and the elements of the offense.  I’d keep a piece of paper nearby during trial to note instructions that arose during the course of the trial, so that I would not forget to raise the instruction with the judge at the appropriate time.  .  I’d fight with the MJ over instructions where necessary during the discussions on the instructions to try to get my instructions in.   Make my best objections to instructions.  Young counsel frequently do not read along with the judge during instructions, which is a critical mistake.   If the judge goofs, that is the time to call him/her out — plus it has the effrect of making the counsel look like he is on top of his game to correct the MJ on the instructions on the law.   Anyway, counsel need to be on their toes for instructions, regardless — a missing instruction can be a disaster.   

  7. Phil Cave says:

    Charlie makes a good point.  The eBenchbook has two excellent checklists that can supplement Charlie’s piece of paper.  They can be used to consider at the beginning because they address many common issues.
    As part of you closer to final preparation submitting a request for instructions to the MJ is also a good idea if the MJ hasn’t already asked for that.  Then is also the time to suggest changes to instructions or instructions on novel issues.

  8. Monday morning QB says:

    I’ll agree with Mr. Gittins and Mr. Cave.  I noticed as both a supervisory TC and later as a judge that many young and inexperienced counsel tend to check out during instructions discussions because they are working on their closings and think the judge is going to get everything right-they do not pay attention; as Mr. Cave says, the BB has always had a great checklist and everyone ought to be using it.  Most smart judges have a 39a session when they go over the checklist and any counsel not ready with requested instructions and not backstopping a judge is walking on perilous ground.  I guess a crafty DC who thinks his guy is going down anyway might sit like a potted plant when a mistake is made, but that seems professionally dangerous to me. 

  9. Dew_Process says:

    The IAC issue here seems to be – at least to me – that once the “Findings” were announced and then the matter moved to the sentencing phase, that jeopardy (rightly or wrongly) had attached.  I can conceive of no rational reason why the DC upon learning of the MJ’s proposed “corrective action,” did not object in any and all possible ways. The instructional “error” was preserved and asking a panel to literally consider “reversing” itself is ludicrous, even with (belatedly) correct instructions.
    The accused here was clearly and unequivocally “twice” placed in constitutional jeopardy, which is far broader than the statutory jeopardy in Article 44, UCMJ – something that does not appear to have been argued by DC or AppDC.  The legally proper “remedy” herein imho, would have been for the MJ to declare a mistrial pursuant to RCM 915(a), and then go from there.  And I must also agree with MM QB, that sitting as the “potted plant” in this scenario is not only “professionally dangerous,” but is perilously close to per se IAC IF that instruction was even remotely important to your case.
    And lastly, I will (again) make my long-standing accusation that the “Courts” of Criminal Appeals have evolved – not in the interests of real “justice” – but as the vehicle for being a “Court” of Criminal Affirmances.  In this regard, your attention is invited to THIS bit of scholarship from the Academy.

  10. slyjackalope says:

    I know for a fact that the defense counsel in this case objected multiple times to the military judge’s proposed remedy in this case.  The objections just fell on deaf ears.

  11. Dew_Process says:

    Thanks for the info, slyjackalope.  But, then the issue is, what (besides objecting to the MJ who had apparently already made up his mind) if anything, did the Defense do to prohibit this process?  SCOTUS has long held that a constitutional, former jeopardy claim, is an exception to the general prohibition on interlocutory appeals and can be challenged immediately.  See, Abney v. United States, 431 U.S. 651 (1977).  But, that’s the proverbial “water over the damn” at this juncture.  The Watada litigation of a few years ago solidified that this concept is also applicable in the military context.
    I don’t know if any of the defense’s objections included one for former jeopardy – if they did, the issue was preserved in that context, although if not raised on appeal, probably waived.