Last week CAAF granted review in the following case:

No. 15-0425/AF. U.S. v. Alan J. Killion, Jr. CCA S32193.  On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

I. WHETHER APPELLANT’S CONVICTION FOR PROVOKING SPEECH IS LEGALLY INSUFFICIENT BECAUSE “UNDER THE CIRCUMSTANCES” HIS WORDS WERE NOT REASONABLY LIKELY TO PROVOKE VIOLENCE.

II. WHETHER THE MILITARY JUDGE’S INSTRUCTIONS REGARDING PROVOKING SPEECH WERE DEFICIENT UNDER THE FACTS AND CIRCUMSTANCES OF APPELLANT’S CASE.

Briefs will be filed under Rule 25.

The CCA’s opinion is available here and reveals that the appellant’s conviction for using provoking speech in violation of Article 134 was based on the following events:

After a night of excessive drinking, the appellant became belligerent and disorderly, accosting strangers with profane outbursts and resisting his friend’s efforts to convince him to return home. Instead, the appellant jumped a fence and entered the apartment of a noncommissioned officer (NCO) he did not know, frightening the residents and neighbors who called security forces. The appellant was apprehended and evaluated on scene by emergency medical technicians who decided to transport him to the base emergency room.

Once there, while undergoing treatment for his altered mental state and injuries to his wrist and knee, the appellant lashed out at the medical providers both physically and verbally. Struggling against restraint by two security forces members and the medical staff, he verbally accosted several medical providers, calling one female nurse a “c[**]t” and medical technicians “Asian douchebags” and “ch[*]nk.” This continued intermittently for over an hour, ending only after the medical staff determined it was necessary to sedate him.

United States v. Killion, No 32193, slip op. at 2 (A.F. Ct. Crim. App. Jan. 28, 2015) (marks in original). The CCA rejected both of the issues granted by CAAF, and also rejected an as-applied constitutional challenge (raised on appeal for the first time) based on the appellant’s assertion that his speech was not fighting words. The asserted instructional error addresses a tailored instruction offered by the defense that would have had the members review the appellant’s speech subjectively: considering “the occupation, education, and training of the listener” to determine whether the listener would be provoked by the speech. Id., slip op. at 4.

17 Responses to “CAAF to review whether an appellant’s speech was sufficiently provoking”

  1. DCGoneGalt says:

    Doesn’t D&D get you all the facts and the conviction with none of the legal hassle?

  2. stewie says:

    Not sure I agree with the implication that somehow speech is less provoking if the person it is directed towards is of a certain job, or has better? education or training. That’s awfully subjective.  I’m not sure the language here was sufficiently provoking objectively, although racial slurs certainly come close, and the c-word is pretty nasty.
     
    I agree though, just go with drunk and disorderly, and call it a day.

  3. Michael Lowrey says:

    Killion plead guilty to being drunk and disorderly and unlawfully entering the apartment of another. An officer/enlisted panel then found him guilty of provoking speech. The sentence was 14 days confinement, a reduction to E-1, a reprimand… and a BCD. Sounds like this is another case of getting cute with the charge sheet and thereby creating an issue on appeal. I’m pretty sure the panel would have returned the same sentence regardless of whether he was charged wit provoking speech or not.

  4. ResIpsaLoquitur says:

    I obviously haven’t been at this long enough.  When I read the words “altered mental state,” my question was why he was even being charged with a crime for conduct committed under those circumstances.  If your mental state is altered, why attack the content of the speech on First Amendment grounds when you can kill the charge with a lack of mental responsibility altogether?

  5. Zachary D Spilman says:

    As a general rule, voluntary intoxication is aggravating, not exculpating. 

  6. k fischer says:

    I wonder how many drunk victims engage in drunken and disorderly conduct before they are assaulted? 
     
    There I was at a barracks party on Ft. Ben Harrison back in ’92, when a blonde female type asked to wear the sax player’s blues jacket, with nothing else on when she was well into her cups, after which she proceeded to do a striptease.  Certainly, this was drunk and disorderly conduct.  Thankfully, she went into an epileptic seizure which ultimately ended the night, so the five or so guys who were cheering her on were not accused of sexual assault.  But, one wonders what allegations might have flown had those guys took her up on her offer and “poured some sugar” on her because she was certainly hot, sticky sweet in a platinum blonde trashy sort of way.  I’d gone back to my room when Def Leppard started cranking because I could tell where “naked girl in a blues jacket owned by the Private Pyle f***up of the band” was headed.  I only returned because Pyle banged on my door when she started having fits, and I was like, “Dammit Ben!  I’m a piano player, not a doctor!”  Nonetheless, I went over to check on her as she was writhing on the floor with her head in another female’s lap wearing nothing but panties and a blues jacket.  I asked the female caretaker if she was going to be okay, and she said, “Yes.  This happens all the time.”  Wanting to test the credibility of the caretaker’s medical opinion I asked the caretaker if she had been drinking and she replied, “No, I’m pregnant.”  I said, “What are you doing here?  Where’s your husband??”  She said, “I don’t have one.”  Wow.  Memories lighting the corner of my mind.  And, it ain’t even throwback Thursday.
     
    Another obscure observation: I’m not condoning the things this Airman said, but my first question after reading the jurisdiction and facts was, “Was he drinking Soju?”  Because that stuff will scramble your mind.  Does anyone know whether or not the DC argued voluntary intoxication as a defense because the speech has to be “wrongful.”  And, ML raises a good point.  A punitive discharge is not one of the punishments of Article 117, so his assessment regarding what the panel would have done is probably correct.  It’s good to know that this issue is going all the way to C.A.A.F. where if they do find error, it will be harmless.

  7. stewie says:

    This just strikes me as not selling the command on the interests of getting rid of someone quickly.  This could have as easily been an OTH waiver, or maybe a Ch 10. Guy gets kicked out, gets bad paper, and he’s out in weeks and the command can sell that reasonably as general deterrence. No need for a conviction, or appellate issues, or the waste of everyone’s time for a measly two weeks confinement.
     
    Why isn’t that preferable? Even from a pro-government perspective?

  8. Burt Macklin says:

    stewie:  I have a feeling this is what pushed it into SPCM territory: “Instead, the appellant jumped a fence and entered the apartment of a noncommissioned officer (NCO) he did not know, frightening the residents and neighbors who called security forces.”

  9. stewie says:

    I get it, I’m not saying it was a horrendous decision to prosecute, but I also think a better decision might have been a quick OTH and out.  The end result was a misdemeanor conviction and two weeks of jail time plus a discharge, and for that, it probably took several months, witnesses had to testify, and now they have possible appellate issues.
     
    Doesn’t seem worth the bang for the buck.

  10. k fischer says:

    Macklin,
     
    Who hasn’t done something like that after drinking soju?
     
    Remember that time you got drunk on soju up on the DMZ and you set off to make good on the Soldier of Fortune’s offer to bring back one square foot of the NK flag flying over Propaganda Village?  You barely made it back and told us how you jumped the fence and the residents were so scared, they looked like they were in a catatonic terror induced fugue.  We didn’t have to heart to tell you they were mannequins.   Or, do I have the wrong Burt Macklin?  You did resign your commission shortly thereafter and join the FBI, right?

  11. k fischer says:

    Stewie,
     
    I agree.  Plus, guy gets drunk and starts goes into an apartment?  Sounds like a 120 accused just waiting to manifest himself.  Also, the Government could have offered a plea at a SCM with an OTH waiver to get him in jail quickly, then process him out.  If there is error, though, it should be harmless. 
     
    On the flip side, I wonder if the TC was concerned about an objection for uncharged misconduct or 403 if they brought in evidence of the language the accused used for sentencing purposes.  That seems to be the emotionally aggravating part of his conduct.  The average panel member is probably going to give the accused the benefit of the doubt with regards to getting drunk and going into an unknown person’s apartment.  But, the provoking speech makes me change my opinion from “this guy’s a dipstick” to “this guy’s an a**hole.” 

  12. Burt Macklin says:

    @ k fischer:
    I was the best damn airman they had, until I was framed for a crime I didn’t commit:  stealing the President’s rubies.

  13. DCGoneGalt says:

    Burt Macklin:  I am just glad k fischer didn’t make some lame Archer reference (is the word lame really a necessary modifier to the term “Archer reference”?) to you being in “zona peligrosa” during your drunken DMZ hyjinx.

  14. k fischer says:

    DCGG,
     
    If you weren’t such a young whippersnapper you’d have recognized that I made a reference to “Weird Science”, in the scene where Biff played by Billy Paxton asks Kelly LeBrock regarding his grandparents, “A good time?  A good time????  Do you think they’re having a good time being catatonic in a closet???!??”

  15. k fischer says:

    I stand corrected.  I should have typed “Chet played by Billy Paxton.”
     
     

  16. DCGoneGalt says:

    k fischer:  “Weird Science” the movie?  I didn’t know there was such a thing, although I do remember the “Weird Science” 90s TV show on USA Network and the chronically unappreciated Oingo Boingo tune. 

  17. k fischer says:

    DCGG,
     
    If you have never seen the movie, then you might want to rent it.  Anthony Michael Hall’s character, Gary, was loosely based on my life.  “She’s into malakas, Dino.”