The Government wins extraordinary relief from the NMCCA in order to prohibit a good military character defense
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.