Back in July, a three-judge panel of the Navy-Marine Corps Court of Criminal Appeals issued a per curiam opinion that reversed convictions of rape and forcible sodomy because the panel found the evidence presented at trial to be factually insufficient. United States v. Clark, No. 201400232 (N-M. Ct. Crim. App. Jul. 14, 2015) (link to slip op.).
The convictions were based on allegations that the appellant used force to engage in vaginal and oral intercourse with a female victim who had very little memory of the encounter due to her state of intoxication at the time of the encounter. The only direct evidence against the appellant was (best I can tell) the woman’s testimony, consisting of “four segmented memories of what occurred with the appellant that night.” Slip op. at 4. Nevertheless, the appellant was convicted by a general court-martial composed of a military judge alone and sentenced to confinement for seven years, reduction to E-1, and a dishonorable discharge.
Considering the relatively little evidence presented at trial, and employing its unique factual sufficiency powers, the NMCCA found the evidence insufficient to sustain the convictions:
We are unconvinced by the record before us that the Government met their heavy burden of proving the required element of force for either offense. While SW’s description of appellant holding her by her arms provided some evidence of force, she could not link this action by the appellant to any further act, sexual or otherwise, and the disorganized, potentially non-sequential order of her memories prevents us from concluding that the charged forcible sexual acts necessarily followed.
Slip op. at 13. As a result, the CCA dismissed the charges with prejudice.
However, the appellant was not immediately released from confinement. Nor was he entitled to immediate release (discussed in depth below). Nevertheless, the appellant sought a writ of habeas corpus from the NMCCA ordering his immediate release. The CCA denied that writ in an en banc decision available here. The appellant has since appealed that denial to CAAF, where I expect it will also be denied.
This isn’t to say that the appellant is not entitled to be released. Rather, he just has to wait a little bit longer.
The UCMJ does not give a CCA the authority to enforce its own decisions. Rather, that authority is given to the JAGs who instruct convening authorities to take action in accordance with the decisions of CCAs:
(e) The Judge Advocate General shall, unless there is to be further action by the President, the Secretary concerned, the Court of Appeals for the Armed Forces, or the Supreme Court, instruct the convening authority to take action in accordance with the decision of the Court of Criminal Appeals.
Article 66(e). The caveat “unless there is to be further action. . .” in this statute provides that a JAG is not required to instruct a convening authority to implement a decision of a CCA unless there will be no further review. See United States v. Miller, 47 M.J. 352 (C.A.A.F. 1997). A CCA’s decision is said to be inchoate until a JAG gives it force, and a JAG is not required to give a decision force if there will be further review. However, even if there will be further review, once the decision to seek such review is made then “an accused’s interest in the favorable decision of the court below (even if inchoate) requires either that the accused be released in accordance with that decision or a hearing on continued confinement be conducted under RCM 305.” Miller, 47 M.J. at 362.
The time period for a JAG to seek further review (by certifying the case to CAAF) is 60 days from the date of the decision of the CCA in accordance with CAAF Rule 19(b)(3). The Government may also seek reconsideration by the CCA which functionally extends the time to certify the case (by delaying the final decision of the CCA).
In Clark, the panel’s per curiam decision was issued on July 14, 2015. The Government had 30 days to request reconsideration of this decision (in accordance with NMCCA Rule 19(a)), and it made such a request on August 13, 2015 (the 30th day). The NMCCA denied reconsideration on August 18, 2015, which started the 60-day clock for a decision on further review. The deadline for the JAG to certify the case is October 17, 2015. Accordingly, unless CAAF intervenes and modifies the holding of Miller, the appellant in Clark is not entitled to release under the decision of the NMCCA until October 17, 2015.
The CCA reaches this conclusion in denying the appellant’s request for a writ of habeas corpus:
[T]he CAAF has consistently held that a CCA opinion favorable to a service member does not entitle him to be released or to the equivalent of an R.C.M. 305 hearing until the JAG has had the opportunity to send the case to the CAAF. This, we believe, is in recognition of the JAG’s executive role and the finite period of time between a CCA decision and action by the JAG – in contrast to the relatively lengthy and indefinite period of time for the CAAF to consider the merits of an appeal.
Op. on Writ Pet. at 5. However, two judges dissent from this conclusion and would order the appellant’s immediate release. Citing the 1990 decision in Moore v. Akins, 30 M.J. 249 (C.M.A. 1990), the dissenters conclude that the appellant “has established a clear and indisputable right to be released from confinement and would grant his petition.” Op. on Writ Pet. at 8. This conclusion is difficult to reconcile with the actual facts of Moore, where the petitioner was being held in post-trial confinement after his case was certified to the Court of Military Appeals (CAAF’s predecessor):
In view of this favorable decision, Moore and his counsel asked that he be released from confinement. When release was not forthcoming, Moore requested on April 24, 1990, that service of his sentence be deferred. On May 16, 1990, the Judge Advocate General of the Navy certified two issues for review by our Court. The request for deferment was denied on June 6, 1990, by the convening authority, who stated, “In light of the serious charges of which you were convicted, I consider it appropriate that you remain confined pending the outcome of the appellate process. As you are no doubt aware, your case has been certified to the United States Court of Military Appeals by the Judge Advocate General of the Navy.”
Moore, 30 M.J. at 250-251. The holding in Miller – reached seven years after Moore was decided – seems far more pertinent:
there will be a 30-day period during which the Judge Advocate General is considering whether to accept the lower court’s opinion or to pursue it further by way of a motion for reconsideration or certification to this Court. During such period, an accused remains in confinement because the opinion below is inchoate.
Miller, 47 M.J. at 361 (emphasis added) (the time period was extended to 60 days by CAAF’s rules change).
Come October 17 – or the date the JAG certifies the case to CAAF, if earlier – the appellant in Clark will be entitled to release from post-trial confinement under the CCA’s decision that reversed his convictions (though he could still be held in pretrial confinement if there are circumstances that warrant pretrial confinement). However, he does not have the right to release before that date.