Early last year the Army CCA applied CAAF’s blockbuster decision in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page), to reverse convictions involving the sexual abuse of five children and a sentence that included confinement for life, in United States v. Adams, No. 20130693 (A. Ct. Crim. App. Jan. 6, 2017) (link to slip op.). The CCA authorized a rehearing.

A rehearing is a “continuation[] of the original proceedings.” Reid v. Covert, 351 U.S. 487, 491 (1956). Rehearings may occur in full, on only the sentence, or as a combination of a rehearing (in full or sentence-only) with a trial on new charges. See Article 63; R.C.M. 810(a).

When convictions are reversed and a rehearing is authorized – as occurred in Adams – and the convening authority wants to conduct a rehearing, the right thing to do is to refer the original charges to a new court-martial. This is so for practical reasons (the charges still exist and were not dismissed) and because the original charges tolled the statute of limitations (and new charges might be time barred). But the right thing didn’t happen in Adams. Instead, after the CCA reversed the convictions, military prosecutors preferred new charges (in 2017) that were substantially identical to the original charges (preferred in 2012).

Duplicating the original charges was sloppy (at best), but then a staff judge advocate made a complete mess of things:

On the advice of the acting staff judge advocate, the convening authority dismissed “without prejudice” the 2012 charges and referred the 2017 charges to a general court-martial.

At trial, petitioner moved to dismiss the 2017 charges for lack of jurisdiction. Appellant asserted that the convening authority had exceeded the mandate of this court’s remand. The military judge denied the motion and this writ-petition followed.

Adams v. Cook, Military Judge, No. 20170581 (A. Ct. Crim. App. Jan. 23, 2018) (link to slip op.), writ-appeal filed, __ M.J. __, No. 18-0171/AR (C.A.A.F. Mar. 19, 2018).

A three-judge panel of the Army CCA denied Adams’ petition for writs of mandamus and habeas corpus, concluding that Adams failed to meet the burden to justify a writ. Adams has since sought review by CAAF. Yet while the acting staff judge advocate’s bad advice to dismiss the original charges and refer only the new charges made a mess of the case, I think it’s highly unlikely that Adams will be successful in stopping a second trial.

Writing for the panel, Judge Wolfe explains that Adams’ writ petition made two claims:

Petitioner asserts that further prosecution is barred by the Double Jeopardy Clause. Petitioner also asserts that the court-martial lacks jurisdiction over the charges.

Slip op. at 1.

The double jeopardy claim is summarily rejected by the CCA because Adams “did not raise this issue with the trial court,” slip op. at 1, but it probably should have been summarily rejected on the merits because the law is well-settled that a conviction reversed on appeal does not bar a second prosecution. As the Navy-Marine Corps CCA explained a few years ago:

[O]nce jeopardy attaches an accused “may not be retried for the same offense without consent once jeopardy has terminated.” [United States v. Easton, 71 M.J. 168, 172 (C.A.A.F. 1012)] (citing Richardson v. United States, 468 U.S. 317, 325, 104 S. Ct. 3081, 82 L. Ed. 2d 242 (1984)). A successful double jeopardy claim, therefore, must have two temporal components: first, that jeopardy attaches, and second, that it terminates. Id. Our resolution of the appellant’s claim focuses on this latter component and rests upon the concept of continuing jeopardy. There is no dispute here that jeopardy attached to the appellant’s conviction for negligent homicide at his first trial. More importantly, however, jeopardy did not terminate despite our setting aside his conviction. Instead, the original jeopardy continued uninterrupted because the “successful appeal of a judgment of conviction, on any ground other than the insufficiency of the evidence to support the verdict, Burks v. United States, [437 U.S. 1, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978),] poses no bar to further prosecution on the same charge.” United States v. Scott, 437 U.S. 82, 90-91, 98 S. Ct. 2187, 57 L. Ed. 2d 65 (1978). Article 44(c), UCMJ, recognizes this concept of continuing jeopardy when it provides that “[n]o proceeding in which an accused has been found guilty by court-martial upon any charge or specification is a trial in the sense of this article until the finding of guilty has become final after review of the case has been fully completed.”

United States v. McMurrin, 72 M.J. 697, 704 (N-M Ct. Crim. App. 2013) (discussed here), rev. denied, 73 M.J. 243 (C.A.A.F. 2014) (noted here), cert. denied, 135 S. Ct. 382 (2014) (pet. discussed here) (denial noted here). The only flaw there is that the provision that says that a conviction at trial does not terminate jeopardy until it is final after appeal is Article 44(b), not 44(c).

Nevertheless, Adams’ convictions were reversed by a successful appeal and they never became final under Article 44. Accordingly, there is no double jeopardy issue.

The jurisdictional issue is a little tricky, however, because it addresses the scope of the remand and ever since CAAF’s decision in United States v. Carter, 76 M.J. 293 (C.A.A.F. Jun. 5, 2017) (CAAFlog case page), the scope of the remand is fertile ground for a massive windfall. But Adams is wholly distinguishable from Carter because the CCA authorized a rehearing in Adams (while the Air Force court dismissed the charge and didn’t authorize a rehearing in Carter). But Adams argues something a little different:

Appellant argues, however, that the convening authority lost jurisdiction over the “rehearing” when he dismissed the 2012 charges. Appellant further argues that there was no lawful basis to re-prefer charges or conduct a new Article 32 hearing. Thus, argues appellant, as the 2012 charges were dismissed and the 2017 charges are unauthorized, “SGT Adams should be released from confinement as there are no other charges pending against him.”

Slip op. at 4-5. This argument is pretty weird, because charges do not have to be authorized by an appellate court, but Judge Wolfe restyles the question:

we must decide whether a convening authority, when authorized to conduct a rehearing, may dismiss charges and refer new charges to a court-martial. Petitioner’s burden is to show that it is clear and indisputable that a convening authority may not do so. Petitioner has not met this burden.

Slip op. at 5. After considering the ability of a convening authority to dismiss charges or add new charges to existing ones, Judge Wolfe concludes:

when we authorize a rehearing we see our decision as returning the case to the convening authority who, subject to rules governing speedy trial, double jeopardy, unreasonable multiplication of charges, and other rules, may take any lawful action regarding the offenses. Dismissal and amendment of charges are among such lawful actions. While “[a] rehearing is a continuation of the former proceeding,” that does not make the charges immutable or cause us to construe them as having been carved into granite. See Von Bergen, 67 M.J. at 291 (On remand from CAAF an appellant received a rehearing on an amended specification and, as stated above, the Court did not view the issue as one of jurisdiction but rather whether a new Article 32, UCMJ, hearing should have been granted).

Slip op. at 7-8.

I believe that Carter is very narrow decision, and I called the prosecution of that case sloppy too. I think Carter stands only for the proposition that because a CCA is not required to authorize a rehearing, see United States v. Atchak, 75 M.J. 193, 195 (C.A.A.F. Apr. 12, 2016) (CAAFlog case page), the Air Force CCA’s conclusion that it didn’t authorize a rehearing is binding. I don’t believe that trial on other charges after an appellate reversal – either if the charges are preferred anew under the UCMJ or if they are brought by a federal prosecutor – is barred by Carter, the UCMJ, the Rules for Courts-Martial, or the double jeopardy clause.

Adams provides a vehicle to challenge my beliefs, but I think it’s a particularly bad vehicle considering the nature of the charges and the sentence adjudged at the first trial, the seemingly undeniable fact that the convening authority’s intent was to re-try Adams on the allegations tried at the first trial, and the under-developed record.

If, however, CAAF does prevent a retrial in Adams, then I suspect the blame will fall entirely on the acting staff judge advocate who advised the convening authority to dismiss the original charges. That would at least have the benefit of further deflating the already tired arguments in favor of removing the commander from the military justice system and replacing him with trained military lawyers.

13 Responses to “A messy rehearing in the Army”

  1. stewie says:

    While I concur that all that needed to happen in this case was for the charges to be referred to a new CM; not sure I agree that dismissal without prejudice and repreferral is “sloppy.” It may be almost always unnecessary (then again there may have been some special reason that we aren’t privy to), but I’d be pretty surprised if CAAF disagrees with ACCA that dismissal and amendment of charges and re-preferral are indeed all lawful actions you can take after a remand.

  2. TC says:

    I’d also like to assume that the acting SJA didn’t take this action without consulting others.  If I’d been in that position, I’d have been consulting with OJAG, the STC, GAD, the ISIC SJA, etc.  While off the top of my head I can’t come up with a rationale for handling it this way, I’d really like to believe that there is a good explanation for it.

  3. Scott says:

    It seems there were acquittals on some of the specs, which of course couldn’t be retried, and it seems they also added some new specs.  I can see how they could think it would be simpler to draft a new charge sheet that included everything they wanted on it and excluded everything that had been eliminated at the first trial. 
    That’s not necessarily a compelling reason, as additional charges are easy enough to process, and the excluded specs could just be struck-through, but I can see how a new charge sheet could seem like a good option to simplify things.  Of course it’s turned out to do just the opposite.
    Also, I imagine muscle memory may have played a certain role.  The MJ office and SJA are used to a certain procedure: prefer -> 32 -> refer.  It’s very possible they just did what they always do and didn’t anticipate the procedural idiosyncrasies of an unusual action.
    In 2-3 years of MJ, how many rehearings do most chiefs of justice or trial counsel see?  Yet another reason to develop specialists (MJ specialists – not Army E-4s).

  4. Zachary D Spilman says:

    The CCA’s opinion explains that:

    Thus, by August 2017, appellant was facing both the 2012 charges and the 2017 charges. A comparison of the two sets of charges revealed three categories or “sets” of specifications: First, some specifications were substantively identical in both charge sheets. Second, some specifications differed only in that the 2017 charge sheet amended the time period where the offense was committed. Third, some new specifications were preferred in 2017. 

    Slip op. at 2 (emphases added). 

    Let’s take those in reverse order.

    The new specification are easy to understand (and are expressly allowed).

    The amended time period specifications are problematic, considering Adams was convicted of the specifications before they were amended. But if the change in time period is so significant as to require a new charge (meaning it’s a major change), then that means that there are new offenses for which Adams has never been placed in jeopardy. Furthermore, the sentence-limitation provision in Article 63 shouldn’t apply to those new charges.

    The substantively identical specifications are a mystery to me, unless the change is to the personal data (such as Adams’ rank or unit). But that’s a silly reason to prefer new charges.

    Ultimately, by preferring new charges and dismissing all of the original charges, what should be a rehearing is actually going to be a trial in the first instance on all counts. Calling that messy is being charitable. 



  5. Scott says:

    In 2-3 years of MJ, how many rehearings do most chiefs of justice or trial counsel see? 

    On second thought, with all the reversal lately, MJ folks may get quite good at these in the next few years.

  6. stewie says:

    The functional difference Zach is what exactly? There isn’t one. That’s what ACCA found, that’s what CAAF will find. Other than generating an appeal, there’s nothing messy about it. Was it more complicated than needed and unnecessary? Sure. That’s pretty much it.

  7. Zachary D Spilman says:

    Other than generating an appeal

    Precisely why we have staff judge advocates. 

    Oh, wait…

  8. stewie says:

    Almost anything can generate an appeal. So if something generates an appeal (a losing one no less), it’s messy?
    That’s a pretty low bar for “messy.”

  9. K fischer says:

    Yeah, that’s like, pre-16 month old son, when my wife said our house was “messy.”  Because, you know, skin cells flake off every day and fall into the carpet and need to be vacuumed even though you can’t see it…..during the last quarter of FSU and UF…….

  10. Bill Cassara says:

    Fortunately FSU had the game firmly in hand by then.

  11. Charlie Gittins says:

    Alzheimers may be setting in but for the charges and specifications preferred in 2012 and subsequently dismissed, doesn’t the statute of limitations get un-tolled?  Seems like some of these specs having been dismissed would not be outside the SOL on re-preferral.

  12. Brian Magee says:

    Alzheimers may be setting in but for the charges and specifications preferred in 2012 and subsequently dismissed, doesn’t the statute of limitations get un-tolled?  Seems like some of these specs having been dismissed would not be outside the SOL on re-preferral.

    Charlie, I thought about the same thing. But Article 43 establishes a longer SOL for offenses against children.

  13. Charlie Gittins says:

    Brian Magee:  Ah, yes, the exception to all rules for offenses involving children.  I should have figured that out.