In a published opinion issued Tuesday and captioned In re: United States v. Roberts, 75 M.J. 696, No. 201600119 (N.M. Ct. Crim. App. Jun. 28, 2016) (link to slip op.), the NMCCA grants a Government petition for extraordinary relief in the form of a writ of mandamus to prohibit the military judge from allowing the defense to introduce evidence of general military character in his defense of the charge of sexual assault in violation of Article 120(b) (2012).

Such evidence used to be permitted in any case, in accordance with longstanding precedent. In 2014, however, Congress mandated changes to this practice, restricting when such character evidence may be offered. The change was our #1 Military Justice Story of that year.

In Roberts, the military judge found that the 2014 change did not apply to the case because its effective date (June 17, 2015; Executive Order 13696)  was after the date of the alleged offenses, and also that application of the change to his case violates the ex post facto clause of the Constitution. The Government then sought extraordinary relief to reverse the military judge’s ruling. The NMCCA grants the relief, reversing the military judge.

The court’s ruling begins with a finding that it has jurisdiction because “a party to the court-martial below challeng[es] admission of evidence – evidence that has every bit as much potential to directly affect the findings and sentence as did the evidence at issue in [LRM v. Kastenberg, 72 M.J. 364 367-68 (C.A.A.F. 2013) (CAAFlog case page)].” Slip op. at 3.

Next it finds that there is no other way for the Government to obtain relief. Slip op. at 3.

Then it finds that the Government’s right to the relief is clear and indisputable because the military judge’s ruling was “based on incorrect interpretations of the law and contrary to well-established precedent.” Slip op. at 4. Specifically, the CCA concludes that the plain language of the Executive Order implementing the change applies it to offenses regardless of when they occurred, and that this application does not violate the ex post facto clause because “it is a rule of admissibility, not a sufficiency of the evidence rule.” Slip op. at 7.

Finally, the CCA finds that issuance of the writ is appropriate because:

First, it is based on an erroneous view of the law that is likely to recur. See Labella, 15 M.J. at 229. Indeed, the military judge concedes, and the Government has demonstrated, that it has recurred in her courtroom. Second, this is no ordinary evidentiary ruling unfavorable to the Government. It is a systemic declination—based on demonstrably invalid legal bases—to apply a new rule of evidence enacted through the combined efforts of Congress and the President. This presents extraordinary circumstances.

Slip op. at 7.

I’m pretty confident that the CCA’s ruling on the change is the right result and that the military judge’s ruling was wrong. However, as I’ve written before, there are still plenty of ways that Roberts can introduce evidence of his good character in his own defense.

But in United States v. Howell, Nos. 16-0289/MC & 16-0367/MC (CAAFlog case page) (argued on May 11, 2016), CAAF is considering whether jurisdiction exists in a case such as this. “Prosecution appeals are disfavored and are permitted only upon specific statutory authorization.” United States v. Bradford, 68 M.J. 371, 373 (C.A.A.F. 2010). The CCA’s conclusion that it has jurisdiction to issue the writ in Roberts is based upon its prospective (and automatic) jurisdiction to review the case under Article 66, however that jurisdiction has long been held to exist solely for the benefit of the accused:

[A]ction by a board of review [the predecessors of the courts of criminal appeals] is always taken on behalf of an accused and in his interest. Literally he can never by prejudiced by this appellate review.

United States v. Dean, 23 C.M.R. 185, 189 (C.M.A. 1957) (quoting United States v. Zimmermann, 6 C.M.R. 12, 20 (C.M.A. 1952))

Insofar as losing the benefit of an erroneous ruling constitutes prejudice, it certainly appears that Roberts is prejudiced by the CCA’s prospective automatic review.

3 Responses to “The Government wins extraordinary relief from the NMCCA in order to prohibit a good military character defense”

  1. Dew_Process says:

    Zach, I’m not so sure that the N-MCCA got the ex post facto point correct. E.g., in Collins v. Youngblood, 497 U.S. 37, 41 (1990), the Court noted:

    Although the Latin phrase “ex post facto” literally encompasses any law passed “after the fact,” it has long been recognized by this Court that the constitutional prohibition on ex post facto laws applies only to penal statutes which disadvantage the offender affected by them. [Emphasis added]

    It would certainly seem that the Accused can (and apparently did at the trial level) make a good argument that the statutory change “disadvantaged” him.  The Court addressed this again in Carmell v. Texas, 529 U.S. 513, 533 (2000), when it observed:

    . . .  the government refuses, after the fact, to play by its own rules, altering them in a way that is advantageous only to the State, to facilitate an easier conviction. There is plainly a fundamental fairness interest, even apart from any claim of reliance or notice, in having the government abide by the rules of law it establishes to govern the circumstances under which it can deprive a person of his or her liberty or life. [Emphasis added]

    Furthermore, there is another fundamental constitutional issue lurking here (and I don’t know if the Accused raised it or not before the MJ, but the CCA didn’t mention it), and that is the Accused’s “right to present a defense.”  As held in Washington v. Texas, 388 U.S. 14, 19 (1967):

    Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law. [Emphasis added].

    CAAF is going to have to sort this out.  The statute (as implemented by the MCM) may itself be unconstitutional as applied to this Accused under these facts – another variation on this theme, and not apparently before the CCA here.

  2. Zachary D Spilman says:

    I have three problems with your comment, Dew_Process.

    First, you’ve selectively quoted Carmell in away that removes essential context from the Court’s observation. The full paragraph is:

    A law reducing the quantum of evidence required to convict an offender is as grossly unfair as, say, retrospectively eliminating an element of the offense, increasing the punishment for an existing offense, or lowering the burden of proof (see infra, at 540-544). In each of these instances, the government subverts the presumption of innocence by reducing the number of elements it must prove to overcome that presumption; by threatening such severe punishment so as to induce a plea to a lesser offense or a lower sentence; or by making it easier to meet the threshold for overcoming the presumption. Reducing the quantum of evidence necessary to meet the burden of proof is simply another way of achieving the same end. All of these legislative changes, in a sense, are mirror images of one another. In each instance, the government refuses, after the fact, to play by its own rules, altering them in a way that is advantageous only to the State, to facilitate an easier conviction. There is plainly a fundamental fairness interest, even apart from any claim of reliance or notice, in having the government abide by the rules of law it establishes to govern the circumstances under which it can deprive a person of his or her liberty or life.

    529 U.S. at 532-533 (emphases added). 

    Second, the language you omitted from your quote pretty closely tracks the four ways a law can violate the ex post pacto clause, as discussed in the CCA’s opinion:

    Justice Chase then enumerated the enduring four categories of laws that violate the Ex Post Facto Clause: (1) a law that criminalizes acts that were not criminal at the time they were committed; (2) a law that aggravates a crime or makes it greater than it was at the time it was committed; (3) a law that imposes additional punishment for a crime that would have not been so punished at the time committed; or, (4) changes to the rules of evidence that require less or different evidence to convict than would have been required at the time the act was committed. Id. See also Carmell v. Texas, 529 U.S. 513, 522 (2000).

    Roberts, slip op. at 5. None of those four ways seems to be implicated by this change, and I think it would be a dramatic expansion of precedent to apply the ex post pacto clause to invalidate the new rule of evidence at issue here. Moreover it would functionally eliminate any possibility of ever amending the Rules because of the danger that some change (however slight and seemingly innocuous) might later be found to disadvantageous to a particular accused whose alleged offense occurred before the effective date of the change. 

    Third, the accused in this case still has the right to present a good character defense. As I wrote in 2015:

    Ultimately, as the Court of Military Appeals noted in Wilson, a good soldier is someone who is “too professional a soldier to have committed offenses which would have adverse military consequences.” 28 M.J. at 49 n.1. In this respect, good military character is really just a different way of saying that a person is law-abiding, and being law-abiding is a trait that is always pertinent in a criminal case. See, e.g., Angelini, 678 F.2d at 381; United States v. Hewitt, 634 F.2d 277, 279 (5th Cir. 1981); United States v. Yarbrough, 527 F.3d 1092, 1102 (10th Cir. 2008). See also, generally, Michelson, 335 U.S. 469; McCormick on Evidence § 191 (6th ed. 2006).

    So I think concerns about infringement on the right to present a defense are overblown.

  3. Dew_Process says:

    Justice Chase’s dictum in Calder has been questioned for years – HERE,  HERE  and HERE on various grounds.
    Be that as it may, it certainly can be argued that Chase’s Fourth Prong is violated where by precluding the “Good Soldier Defense” here – again, as an applied violation due to the factual scenario – clearly a change in the “rules of evidence” obviates the government from having to overcome the Good Soldier Defense in order to convict.
    My point here is quite narrow based solely on the chronology of events in this case – not as a general rule to those cases arising after Congress passed the limiting legislation.