CAAF decided the Army case of United States v. Carter, 74 M.J. 204, No. 14-0792/AR (CAAFlog case page) (link to slip op.), on Wednesday, June 10, 2015. Finding that there is no per se rule against an accused presenting evidence of unlawful pretrial punishment as mitigation evidence during the sentencing phase of a court-martial – even after the accused receives judicial credit for the same unlawful punishment – CAAF nevertheless holds that the military judge did not abuse her discretion when she prevented the appellant from introducing such evidence to the members in this case.

Chief Judge Baker writes for the court, joined by all but Judge Stucky who writes separately, concurring in the result.

The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of one specification of indecent act in violation of Article 120(k) (2006). He was sentenced to confinement for six months, reduction to E-1, and a bad-conduct discharge. The Army CCA summarily affirmed.

Article 13, UCMJ, prohibits the imposition of punishment before trial. At trial, the appellant and the Government agreed that the appellant should receive 25 days of confinement credit for pretrial restriction that constituted unlawful pretrial punishment in violation of Article 13 (the appellant initially sought 45 days of credit). Then, during the sentencing phase of the court-martial, the appellant sought to call a witness “to testify about the pretrial violations” as a matter in mitigation possibly justifying a lesser adjudged sentence. Slip op. at 4. The trial counsel objected on relevance grounds and the military judge sustained the objection. The judge “specifically based her decision on existing case law discussing [Article 15] nonjudicial punishment which, according to the military judge, is analogous to [Article 13] and should be interpreted to mean that defense counsel ‘has an option as to how to present that evidence; one of four ways.'” Slip op. at 4-5.

CAAF granted review to determine whether that ruling was error, with the following issue:

Whether the military judge abused her discretion by preventing defense counsel from presenting facts of appellant’s unlawful pretrial punishment as mitigation evidence at sentencing.

Chief Judge Baker finds that Article 13 “is distinct from NJP credit and should not be treated in the same way.” Slip op. at 9. He further finds that allowing an accused to receive credit from a judge for a violation of Article 13 while also using the underlying facts as evidence in mitigation “does not provide defense counsel two bites at the apple.” Slip op. at 12 (emphasis added). However, he comes to the puzzling conclusion that the military judge in this case did not abuse her discretion when she held the opposite: that allowing the defense to call the witness “was giving defense counsel ‘two bites at the apple.'” Slip op. at 12-13.

Chief Judge Baker’s opinion discusses “three propositions.” Slip op. at 8.

First, the existence of a violation of Article 13 “includes a finding of law, and thus is a question that must be answered by the military judge.” Slip 8-9. Accordingly, military judges must continue to determine whether, and how much, Article 13 credit to apply in a particular case.

Second, Article 13 credit “is distinct from NJP credit and should not be treated in the same way.” Slip op. at 9. NJP (Article 15) credit addresses prior administrative punishment for the same offense punished at court-martial, and is awarded “day-for-day, dollar-for-dollar,stripe-for-stripe.” United States v. Pierce, 27 M.J. 367, 369 (C.M.A. 1989). But Article 13 credit “is relief for the government’s conduct, not a sentencing factor related to the accused’s offense.” Slip op. at 9 (quoting United States v. Barnett, 71 M.J. 248, 255 (C.A.A.F. 2012) (Baker, C.J., concurring in part and in the result) (emphasis in original)). Further:

Where an accused has already received credit for NJP, he would indeed get “double credit” for the same restriction were members to award him credit as well. Should members take Article 13, UCMJ, evidence into account when assessing a sentence, however, the accused is not receiving credit twice for the same conduct. This is, indeed, a case of apples and oranges.

Slip op. at 9-10.

Third, subject to the rules of evidence and procedure, an accused has the opportunity to “present ‘matters in mitigation’ which is evidence introduced ‘to lessen the punishment to be adjudged by the court-martial, or to furnish grounds for a recommendation of clemency.'” Slip op. at 10 (quoting R.C.M. 1001(c)(1)(B)) (marks omitted). Chief Judge Baker’s opinion doesn’t explicitly say that Article 13 issues are matters in mitigation, but it functionally reaches this conclusion:

[I]f defense counsel chooses to present the Article 13, UCMJ, violations to the panel for purposes of sentence mitigation, trial counsel may rebut the evidence, subject to the same rules of evidence.

As is the case with Article 15, UCMJ, credit for NJP, the military judge should, as necessary, give tailored instructions to the panel members to distinguish between Article 13, UCMJ, credit addressed to the government’s conduct, and the use of such evidence in mitigation. The evidence of Article 13, UCMJ, violations coupled with the number of days of confinement credit already awarded can thereby be weighed as part of the totality of the evidence the panel members consider when determining the appropriate sentence for the accused.

Slip op. at 10-11. Further, the opinion explains why this doesn’t result in double credit to an accused:

In choosing to present the Article 13, UCMJ, evidence to the panel, including the number of days already credited the accused, defense counsel may even risk that the panel members consider that factor in favor of a harsher sentence than would have been assessed without knowledge of the credit. It is for that same reason, however, that allowing a military judge to first determine whether Article 13, UCMJ, violations occurred as a matter of law and awarding confinement credit where relevant, and subsequently allowing a panel to consider the totality of the evidence — including that there was an Article 13, UCMJ, violation — does not provide defense counsel two bites at the apple. Rather, the evidence is at play in two different stages of the trial, and presented for different purposes.

Slip op. at 11-12.

Yet the military judge in this case reached the opposite conclusion, denying the appellant the opportunity to present the Article 13 evidence to the panel. CAAF appears to give the military judge credit for effort, while glossing over the fact that her legal conclusion was wrong:

[W]e conclude in this case that the military judge did not abuse her discretion in ruling against Appellant. At the time, she was presented with what was expressly acknowledged by Judge Erdmann’s special concurrence in Barnett, 71 M.J. at 253-54, as an unsettled question of law and, relying on the relevant cases including Gammons and Southwick, provided on the record sound reasoning to support her ruling. Notably, the military judge made a point of researching the relevant law, and stated, for the record, the logical steps she took to reach her conclusion. . . . As she weighed the law and evidence before her, articulated for the record why she reached her conclusion, and her findings were not clearly erroneous, the military judge did not abuse her discretion.

Slip op. at 12-13. The troubling part of this result is that when reviewing a military judge’s ruling for an abuse of discretion, findings of fact are reviewed under a clearly erroneous standard and conclusions of law are reviewed de novo. See, e.g., United States v. Roberts, 69 M.J. 23, 27 (C.A.A.F. 2010). The military judge’s ruling in this case was clearly a question of law, and CAAF rejects the judge’s conclusion. That necessarily constitutes an abuse of discretion.

Judge Stucky explains this point in his separate opinion:

A military judge abuses her discretion if her findings of fact are clearly erroneous or her conclusions of law are incorrect. United States v. Olson, 74 M.J. 132, __ (5) (C.A.A.F. 2015). The Court correctly holds that the military judge’s conclusion of law — that Appellant was not entitled to both request credit from the military judge for illegal pretrial punishment and present evidence of such to the court members — was incorrect. Therefore, the military judge abused her discretion.

Con. op. at 1. Yet Judge Stucky concurs in the result because he finds the error harmless in light of the (relatively low) adjudged sentence and the circumstances of the case.

It’s hard to explain why the majority does not find an abuse of discretion in this case. Presumably, however, having clarified that the military judge’s conclusion in this case was wrong, the court will not tread so lightly in the future.

Case Links:
ACCA opinion (summary disposition)
Appellant’s Brief
Appellee’s (Government) brief
Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

2 Responses to “Opinion Analysis: CAAF holds that Article 13 evidence is admissible in mitigation, yet finds no error in the exclusion of such evidence in United States v. Carter, No. 14-0792/AR”

  1. Sheila L. says:

    Is everyone on vacation?  Nobody cares?  Okay then…  I agree with everything but the conclusions…of both opinions.  She clearly abused her discretion (according to their analysis) and saying otherwise leaves a bad odor.  I’m just Joe Public, but I can follow their reasoning until they reach their totally illogical conclusion.  Doesn’t inspire confidence in the product they’re selling.
    As far as Judge Stucky’s concurring opinion, I admit that I can’t call up the law, application or precedence regarding the harmfulness/harmlessness of error.  That said, I can still follow a decently articulated analysis and this one seemed really cursory.  Too bad.  It seemed to me that he got everything right up until then.
    Just sayin’

  2. Amateur Hour says:

    I might be an amateur (ha), but I thought that “two bites at the apple” was precisely what findings and sentencing were.  Strange, strange outcome in this one.