Argument Preview: Was a specification that did not explicitly allege unlawfulness sufficient to charge attempted murder, in United States v. Turner, No. 19-0158/AR
CAAF will hear oral argument in the Army case of United States v. Turner, No. 19-0158/AR (CAAFlog case page), on Wednesday, November 6, 2019, after the argument in Davis. The court granted review of a single issue:
Whether the specification of Charge I alleging an attempted killing fails to state an offense because it does not explicitly, or by necessary implication, allege the attempted killing was unlawful.
Specialist (E-4) Turner was convicted of attempted murder (the specification at issue), conspiracy to commit premeditated murder, maiming, and obstruction of justice, and sentenced to confinement for life without the possibility of parole, reduction to E-1, total forfeitures, and a dishonorable discharge. The Army CCA reversed the obstruction conviction (as factually insufficient) and conditionally dismissed the maiming charge, but affirmed the other findings and affirmed the sentence.
The specification of attempted murder alleged:
In that, Specialist Malcolm R. Turner, U.S. Army, did, at or near Clarksville, Tennessee, on or about 1 January 2015, attempt to kill with premeditation Specialist [C.SG.] by means of shooting her with a loaded firearm, causing grievous bodily injury.
App. Br. at 3 (quoting record) (emphasis omitted) (modification in original). Turner’s defense counsel objected to the specification at trial, asserting that the specification failed to actually state the offense of attempted murder because it did not allege that the attempted killing was unlawful (a necessary element of murder). The military judge overruled the objection and Turner renewed it on appeal, where the Army CCA held that the specification “alleges words of criminality sufficient to inform appellant that he was charged with the offense of attempted premeditated murder,” while observing that “not since the Civil War has Clarksville, Tennessee been close to a combat zone where appellant might claim that an attempted premeditated killing of a fellow American soldier could have been lawful.” United States v. Turner, No. 20160131, slip op. at 15-16 (A. Ct. Crim. App. Nov. 30, 2018). CAAF then granted review.
Turner’s brief asks CAAF to read the specification narrowly (in accordance with its precedent involving such challenges first made at trial). In particular, Turner points to CAAF’s decision in United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011) (discussed here), which reversed nearly 60 years of military jurisprudence by holding that a specification under Article 134 fails to state an offense if it does not allege a terminal element (prejudice to good order and discipline, service discredit, or a crime or offense not capital). Turner emphasizes that he – like the appellant in Fosler – objected at trial, and he notes that CAAF did not look beyond the language of the specification in its review in that case:
Notably missing from the Fosler opinion was any discussion of whether defense counsel had actual notice based on the specific facts of the case. And nowhere in Fosler did the majority consider whether the defense was misled. Instead, after looking only to the text of the charge and specification, this Court concluded that nothing inherent in an adulterous act was necessarily service discrediting, prejudicial to good order and discipline, or a crime not capital. Id. at 230.
App. Br. at 13. It’s worth mentioning that this part of the Fosler decision had a foundation in the Rules for Courts-Martial. Specifically, the version of R.C.M. 907 in effect at the time of Fosler stated that the failure to state an offense was a nonwaivable ground for dismissal, and that a deficient specification “shall be dismissed at any stage of the proceedings.” R.C.M. 907(b)(1)(B), Manual for Courts-Martial (2008 ed.) (emphases added). The rule was changed in 2016 (discussed here). That change, however, doesn’t apply to Turner (because it occurred after the trial).
The Government Division’s response is that the specification “necessarily implies that it was unlawful for Appellant to attempt to murder his infant son’s mother.” Gov’t Div. Br. at 7. In what seems to be the same argument that prevailed at the CCA, the Government Division’s brief asserts:
[T]he specification sufficiently alleged words of criminality. Appellant’s arguments that killing may sometimes be lawful are unavailing. It is of no moment that a deployed Soldier may lawfully use force to kill an enemy combatant. Such a scenario is antithetical to Appellant’s premediated attempt to kill his infant son’s mother over a child support dispute. Simply put, there is no doubt that the specification notified Appellant that he was charged with an unlawful attempt to kill. (JA 3). The specification alleges that Appellant attempted to kill with premeditation while in Clarksville, Tennessee. (JA 24). SPC CSG’s Clarksville apartment is thousands of miles away from the battlefields to which Appellant alludes. Furthermore, the specification alleges that Appellant attempted to kill SPC CSG, a title that expressly indicates that the alleged victim is a fellow Soldier and thus was an unlawful target for Appellant’s .40 caliber hollow point rounds. “In the context of the charge and the wording of the specification, the word distribute could only have been interpreted as a wrongful one.” Simpson, 25 M.J., at 866. Similarly, in the instant case, the words “attempt to kill with premeditation” can only be interpreted as an unlawful taking of another’s life. (JA 24).
Gov’t Div. Br. at 15-16.
The Government Division also argues that the reasoning in Fosler applies only to challenges to the sufficiency of specifications under Article 134. Gov’t Div. Br. at 10-12. That a pretty untenable position, considering that Fosler turned on a basic premise:
The Government must allege every element expressly or by necessary implication, including the terminal element. The Government did not expressly allege the terminal element in this case . . . [and] we are compelled to hold that the charge and specification do not allege the terminal element expressly or by necessary implication.
Fosler, 70 M.J. at 232. It’s not clear what reasoning the Government Division would apply to this case if not the Fosler requirement that the specification allege every element expressly or by necessary implication (particularly considering that the Government Division’s primary argument is that the specification in this case necessarily implied the element that the killing was unlawful).
Turner’s reply brief excoriates the Government Division for its failure to offer a coherent approach:
The essential failing of the Government’s position is that it presents a fundamental line-drawing problem, very much akin to the one this Court faced when employing the “fairly embraced” test. See Fosler, 68 M.J. at 469 (citing United States v. Zupancic, 18 M.J. 387, 391–93 (C.M.A. 1984) (Cook, S.J., concurring in part and dissenting in part).
The Government fails to offer a principled basis for drawing the line where it does because none exists. Instead, the Government repeatedly calls the Court’s attention to the admittedly aggravating facts of this case—facts not included in the language of the specification—in an effort to rectify its trial error. (Gov’t Br. 4, 16). But this Court’s precedent is clear and logically compelling. This specification does not state an offense, the defense objected to the specification at trial, and therefore it must be dismissed.
Reply Br. at 9.