Power to the people was a popular chant in the 1960s. But the better chant for 2016 was: Power to the CCAs! In five cases the Courts of Criminal Appeals flexed their muscles and prevailed.
The first was United States v. Pease, 75 M.J. 180 (C.A.A.F. Mar. 17, 2016) (CAAFlog case page), in which a unanimous CAAF held that the Navy-Marine Corps CCA properly defined the statutory term incapable of consenting and then rightly applied that definition to determine that the evidence was factually insufficient (despite no such definition being provided to the members at trial). After the NMCCA defined the term and reversed the sexual assault convictions, the Judge Advocate General of the Navy certified the case to CAAF with issues that challenged both the power of the CCA to engage in such statutory interpretation as part of its factual sufficiency review and the CCA’s actual interpretation of the meaning of the term. CAAF firmly rejected both challenges.
Next, in United States v. Chin, 75 M.J. 220 (C.A.A.F. Apr. 29, 2016) (CAAFlog case page), CAAF concluded that Article 66(c) commands a court of criminal appeals to conduct a plenary review of each case regardless of any trial-stage waivers. Despite Chin’s guilty pleas and pretrial agreement to waive all waivable motions, the Air Force CCA found an unreasonable multiplication of charges for both findings and sentencing purposes. The Judge Advocate General of the Air Force certified the case to CAAF seeking to enforce the trial stage waiver. But CAAF affirmed the CCA’s exercise of its statutory authority.
Then, in United States v. Atchak, 75 M.J. 193 (C.A.A.F. Apr. 12, 2016) (CAAFlog case page), CAAF unanimously concluded that the Air Force CCA did not abuse its discretion when is disapproved findings of guilty without authorizing a rehearing. Atchak pleaded guilty to multiple offenses including three specifications of aggravated assault by a means likely to cause death or grievous bodily injury based upon unprotected sexual activity with other Airmen after he was informed that he is HIV-positive and was ordered to inform his partners of his status and use protection. The CCA dismissed those specifications after applying United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. 2015) (CAAFlog case page), and concluding that it could not affirm convictions of the lesser included offense of assault consummated by a battery because the plea inquiry did not adequately address the defense of consent. The CCA did not, however, authorize a rehearing that would give the prosecution a second chance to secure a conviction, and CAAF affirmed that withholding such authorization was within the CCA’s discretion.
This was followed by United States v. Gay, 75 M.J. 264 (C.A.A.F. May 11, 2016) (CAAFlog case page), in which CAAF affirmed the Air Force CCA’s grant of sentence appropriateness relief without first finding the existence of cruel and unusual punishment in violation of Article 55 or the Eighth Amendment. The case involved post-trial solitary confinement in a civilian facility (seemingly to avoid co-mingling in violation of Article 12), and Gay asserted that such confinement constituted cruel and unusual punishment. The CCA disagreed that the Government’s use of solitary confinement was cruel and unusual, but it nevertheless reduced Gay’s sentence in response. The JAG certified the case and CAAF affirmed.
Finally, in United States v. Clark, 75 M.J. 298 (C.A.A.F. May 17, 2016) (CAAFlog case page), CAAF affirmed the NMCCA’s factual determinations about credibility that were contrary to special findings by a military judge. Clark was tried by a military judge alone and was convicted of rape and forcible sodomy, but the CCA found the convictions factually insufficient and dismissed the charges with prejudice. The CCA’s decision was based largely on its conclusions about the credibility of the alleged victim, and the Judge Advocate General of the Navy certified the case to CAAF to challenge the CCA’s authority to make such a credibility determination based solely on the record (and particularly considering that the case was tried before a military judge). CAAF, however, found that weighing evidence and judging credibility is beyond its statutory jurisdiction. Writing for a unanimous court Judge Stucky explained:
The tonic chord running through our cases is a clear recognition of the unique powers lodged by Congress in the Courts of Criminal Appeals, coupled with a strong disinclination to involve ourselves in the review of the exercise of that power.
Clark, 75 M.J. at __, slip op. at 3-4.
This tonic chord was heard loudly in 2016.