Did you listen to the oral argument in United States v. Hukill, 76 M.J. 219 (C.A.A.F. May 2, 2017) (CAAFlog case page)?

Hukill was a trailer to Hills (CAAFlog case page) for judge-alone cases. But rather than focus on the difference between a panel and a military judge, the Army Appellate Government Division used the case as a vehicle to re-litigate the underlying holding of Hills.

It lost. Bigly.

The oral argument audio (link) is entertaining. In particular, less than a minute into the argument by counsel for the Army Appellate Government Division, Judge Ryan said the following:

The Government – the Government writ large – had every opportunity to seek certiorari from the Supreme Court, and it may have tried to convince the Solicitor General of that, and may have been told no, I don’t really know.  But [what] I do know is that they didn’t seek cert. And so I don’t want to go through what we went through with the Air Force where we refused to accept that the opinion says what it says and then we’ll decide this case however we decide it, and then if you don’t like that we’ll get petitions for rehearing and then petitions for rehearing on any trailer cases, etc. etc. etc.

The segment begins about 16:14 into the recording. Or click here for a clip.

So, having been chastised by Judge Ryan for the general failure of the Government writ large (or perhaps just the Air Force Judge Advocate General’s Corps) to accept CAAF’s rulings, what do you think the Army Appellate Government Division did after CAAF ruled against it unanimously?

It requested reconsideration, of course.

From CAAF’s daily journal on Thursday, June 15, 2017:

No. 17-0003/AR. U.S. v. Christopher B. Hukill. CCA 20140939. On consideration of Appellee’s petition for reconsideration of this Court’s decision, United States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017), it is ordered that said petition for reconsideration be, and the same is, hereby denied.

By the way, Government bloopers were our #2 Military Justice Story of 2015. The top spot went to the Military Justice Act of 2016.

7 Responses to “Government dysfunction on display in Hukill”

  1. Dre says:

    i listened to the oral argument on hill and the govt had a very bad experience. But I still do not understand why the airforce and army CCA and even recently the NMCCA’s in Luna still decline to set aside these Hills trailers. If the CAAF in Hukill made it clear that they will overturn all Hills trailers then in my opinion then the government owes the tax payers some explanation for perusing these cases knowing that the outcome will be the same with CAAF and CAAf is doing the right thing.

  2. DCGoneGalt says:

    Stop trying to figure it out, the Army/AF appellate decision-making process seems to be a long-term post-modern avant grade performance piece.  It isn’t something to be analyzed rationally, it’ll only frustrate you.

  3. I Got This One says:

    The courts aren’t automatically setting aside Hills trailers because the analysis does not stop upon use of 413 instructions; there is still a prejudice analysis for all of these cases. In Hills and Hukill, CAAF found prejudice. Taxpayers would be bitter if the Government spent so much time and money trying sex assault cases only to punt them on appeal when there was still an avenue (prejudice) to litigate.  Hope that helps.

  4. Allan says:

    So, it seems that the answer is to charge one or two counts (the strongest) and use the rest as propensity evidence?  Perhaps this would lead to a reduced sentence, perhaps not.

  5. stewie says:

    I have this crazy notion that you should just charge your strongest charges, i.e the ones you think a panel will find guilt BRD with some sufficient degree of certainty. Period. If you have charges that are strong, they will often win regardless. If you have charges that are individually weak, amalgamating them (either by charging or by using as propensity evidence) isn’t really going to make them stronger, in most cases.
     
    All of this propensity attempts are problematic. I think the only place they really work is when you have real 404b type evidence or you have child sex assault (because panels are much more prone to believe patterns like what the gov tries to argue in those type of cases).

  6. Isaac Kennen says:

    I Got This One,
    I don’t think we should presume that trial judges grant government requests for propensity instructions in cases where the propensity inference has low probative value.  What would be the relevance for a useless instruction?  If the trial judge felt the government had established the probative value of the propensity inference under the unique facts of a particular case, I think appellate courts should be reluctant to second-guess that assessment.  A court that did not see the rest of the evidence unfold in front of it is not ideally suited to overrule the court that did in order find the propensity inference in that case to be worthless.

  7. Zachary D Spilman says:

    A court that did not see the rest of the evidence unfold in front of it is not ideally suited to overrule the court that did in order find the propensity inference in that case to be worthless.

    Funny how the rulings are typically made before the evidence is admitted.