Successful extraordinary writs are so rare that it’s difficult to talk about a “typical” successful extraordinary writ. But if there is such a thing, it probably involves a scenario in which a convening authority or judge has done something (or refused to do something) resulting in prejudice to some fundamental right in a way that can’t be easily corrected in the normal course of appellate review. Likely issues that come to mind involve right to counsel issues, some discovery issues (like preventing destruction of evidence) and issues relating to the right to a speedy public trial.

Consider United States v. Schmidt, 60 M.J. 1 (C.A.A.F. 2004), in which the government required an accused to clear through the government those classified matters he wanted to discuss with this counsel. The accused filed an extraordinary writ to permit the accused to discuss these matters with counsel in confidence, the denial of which was vacated by CAAF. But by what authority?

In United States v. King, 53 M.J. 219 (C.A.A.F. 2000) (mem.), Judge Sullivan wrote in his concurring opinion that military appellate courts’ writ authority under the All Writs Act included the power “to supervise proceedings and provide relief under the Uniform Code of Military Justice.” This supervisory power isn’t dependent on an appellate court’s jurisdiction over any particular case; neither King nor Schmidt qualified for review under Articles 66 or 67. The accuseds’ cases hadn’t even been referred yet. But CAAF, according to Judge Sullivan, had the authority to supervise Article 32 proceedings simply because they are, as Judge Sullivan put it, “part of the Uniform Code of Military Justice.” Id.

A slightly less expansive view of military appellate courts’ jurisdiction was articulated by CMA in United States v. Snyder, 40 C.M.R. 192 (C.M.A. 1969). In Snyder, CMA held that its jurisdiction did not extend to all proceedings under the UCMJ. Where a case had no potential to be reviewed under Article 66 or 67, military courts lacked jurisdiction to issue writs.

The Denedo Court’s rationale for permitting extraordinary writs (or at least coram nobis) undercuts both views of when a writ is in aid of a court’s jurisdiction. The Court acknowledges that military courts can issue writs, and that the All Writs Act is the source of that authority. The harder question is whether the case–not the writ–is within the court’s jurisdiction. In the case of coram nobis, it’s pretty easy for the majority lash writ issuing authority to the statutory authority by which the appeals court heard the case in the first instance. Everyone agrees CCA had jurisdiction to hear the case under Article 66; the power to issue the writs in aid of the court’s jurisdiction is coextensive with the jurisdiction. And while fixing the power to issue writs so firmly to the fact that a case had once satisfied Article 66 may shore up coram nobis, it erodes the rationale for writs more commonly filed before a case satisfies the jurisdictional requirements of Article 66.

Judge Sullivan’s unfettered-supervisor-of-all-UCMJ-proceedings theory of writ authority is clearly inconsistent with Denedo. For that matter, it was probably inconsistent with Goldsmith, too, so maybe I shouldn’t rush to declare it dead. But what about cases that fall into an appellate court’s potential jurisdiction? Those cases form the bulk of the meaningful writ petitions. The Denedo Court’s statement that “to issue respondent a writ of coram nobis on remand, the NMCCA must have had statutory subject-matter jurisdiction over respondent’s original judgment of conviction” indicates that potential jurisdiction cases may be by the boards, too. If a CCA must have subject matter jurisdiction over a case without reference to the All Writs Act in order to issue a writ, no case will qualify for a writ until after the convening authority’s action.

I can imagine counter arguments: Of course the Court would look retrospectively, not prospectively, at the CCA’s jurisdiction in a coram nobis case. The court either had jurisdiction or it didn’t. Perhaps if this were a pretrial petition for a writ of mandamus the Court would have found a prospective, rather than a belated extension of CCA’s jurisdiction. Some of the logic in Denedo can be found in Snyder. The Snyder court, too, found that writs are issued “in aid of the exercise of our jurisdiction over cases properly before us,” and then had no apparent qualms about tacking on the words “or which may come here eventually.” [Emphasis in original; Lexis won't give me the page number, sorry.] But over and over again, the Denedo Court returns to the fact that Denedo’s case had already cleared the Article 66 wicket as the actual basis for jurisdiction. In short, there is no such thing as extraordinary writ jurisdiction at CCA; only Article 66 jurisdiction, which, when achieved, entails the possibility of writs in aid of that jurisdiction. So if you want your writ petition to have potential, your jurisdiction may have to be actual.

From a policy standpoint (yeah, I know, that’s different from a legal standpoint), that’s too bad. If I had to pick one writ to jettison to save the others, it would be coram nobis. From what I’ve seen it is mostly used as a petition for reconsideration way out of time. Mandamus and prohibition, on the other hand, are occasionally used to cure a fundamental problem that threatens to work a substantial injustice. Sometimes they further judicial economy. It’s a shame that in going so far to save coram nobis the Court may have gutted the rationale for more useful writs.

Machinist’s Mate Second Class William Fairley, USN, is charged under with aggravated sexual assault under Article 120(c) for allegedly engaging in a sexual act with another person while that person was substantially incapable of declining participation in the sexual act. Under the new Article 120, which became effective on October 1, 2007, the question of consent on the part of the alleged victim is not an issue in this case unless the accused can affirmatively prove that the alleged victim consented.

The issue facing the court-martial was whether making the accused prove that the victim consented is tantamount to making him disprove the second element of the offense–that the other person was incapable of consenting. The military judge ruled that since an accused “cannot logically assert the affirmative defense of consent without denying the second element of the offense,” imposing the requirement on the accused to prove consent shifted the burden of proof to the accused in violation of due process.

The military judge’s ruling is available here.

The other recommendations are for fundamental structural changes to the UCMJ, including a recommendation that the decision to prosecute service members be made by a new Director of Military Prosecutions. This recommendation is in response to Professor Alston’s conclusion that military commanders are not holding subordinates appropriately accountable for misconduct, particularly misconduct resulting in harm to noncombatants occurring during operations.

The press release is available here.

The issue before CAAF was different from the issue decided by CCA. Before the lower court, Toy argued that two recordings–one made without his knowledge and one made without his consent, in violation of Hawaii state law–should have been suppressed under 18 U.S.C. § 2511, the federal wiretapping law. This law essentially provides for the admission of recorded conversations as long as at least one party consented to the recording, unless the party making the recording acts with a purpose to violate state law or to commit a tortious act. Of course, federal law controls the admissibility of evidence in a federal tribunal. But since the federal law itself seemed in this instance to incorporate state law in this respect, Toy argued to the CCA that a recording made in violation of Hawaii’s two-party consent law was inadmissible under federal law as well. The trial judge and CCA rejected this argument.

At CAAF, appellant decided to retool the argument. Since M.R.E. 317 excludes evidence that must be suppressed under the Constitution and statutes applicable to members of the armed forces, Toy argued that the more restrictive Hawaii wiretap law required suppression independent of the operation of 18 U.S.C. § 2511, or any other federal law for that matter. After all, Toy argued, the Hawaii law is in fact a statute applicable to members of the armed forces, at least the ones in Hawaii.

CAAF was having none of it, and dispatched appellant’s arguments for essentially the same reasons CCA dispatched the first argument. Federal law governs the admissibility of evidence in courts-martial, end of story. And just in case anyone thought that the first argument was still twitching after the court took care of the new argument, Judge Baker administers a dicta double-tap at the end of the opinion affirming NMCCA’s handling of the first theory.

I should add that I was Toy’s counsel at CCA and then the IMC at a sentencing rehearing. I am usually “reasonably available” for IMC to cases in Hawaii, in case anyone was wondering.

The accused, Aviation Boatswain’s Mate (Launching and Recovery Equipment) Second Class Daniel Ortizrodriguez (let’s just call him the appellee) was initially accused of rape and civilian authorities conducted an investigation. The civilians elected not to pursue the case, and the Navy requested that appellee be detailed a defense counsel. Eventually, appellee was restricted to the limits of the USS JOHN F. KENNEDY, which was in the process of decommissioning. Appellee remained restricted through the decommissioning process, and after KENNEDY decommissioned, appellee was restricted to a barge. The military judge ruled that the conditions of appellee’s restriction were tantamount to confinement. On appeal, the government did not contest this finding. Appellee spent a total of 101 days in restriction tantamount to confinement without being arraigned.

The delay NMCCA found troubling enough to warrant dismissal with prejudice included 27 days that elapsed between imposition of restriction and preferral, and 44 days for the investigating officer to complete the Article 32 investigation. Much of the delay associated with the Article 32 was attributable to the investigating officer keeping the investigation open in hopes of obtaining evidence the trial counsel had informed him was likely lost.

We’ll see if the government lets this case lie harmlessly in unpublished oblivion or risks a published CAAF opinion. There’s nothing especially groundbreaking here legally speaking, a straight forward, fact intensive application of the Barker v. Wingo factors.

Since the case hasn’t hit the NMCCA web page yet, I’ll zap a copy to No Man for posting on CAAFlog.com.

I had occasion to do a presentencing hearing last week, and since my client had two NJPs in the previous two years, I was in a position to object to their admission during sentencing on the grounds outlined by CDR Johnson. Since my client will be enjoying the full panoply of rights afforded him by Article 66, we can look forward to seeing how this theory plays in the appellate arena.

Stanley Othuru, a Nigerian, entered into a fraudulent marriage with Michelle Othuru, Stanley’s biological sister, and collected BAH at the married rate. Michelle and her mother made sworn statements during the course of the investigation admitting to the fraudulent marriage. Neither woman testified. At a trial held before the Supreme Court decided Crawford v. Washington, the military judge admitted both sworn statements in violation of Othuru’s Sixth Amendment right to confrontation.

NMCCA held the error to be harmless beyond a reasonable doubt, and CAAF agreed. Citing other matters introduced by the government such as a demonstrably fake birth certificate for Michelle and the testimony of a records custodian from a Nigerian hospital, CAAF held that admission of the testimonial hearsay was harmless beyond a reasonable doubt.

The report also authorizes CAAF judges to administer oaths under Article 136 and requires the Secretary of Defense to prescribe regulations prohibiting active participation by members of the Armed Forces in a criminal street gang.

I’ll send the text to No Man and ask him to put it up on CAAFlog.com.

One spot in particular made me do a double take. A woman dressed in a business suit that claimed to have been both a judge advocate and a civilian lawyer delivers a message favorably comparing an accused’s rights at a court-martial to a defendant’s rights at a civilian trial. One comparison in particular made me do a double take. The speaker said that a military accused has a superior right to a trial by his or her peers at a court-martial compared to a civilian trial. There’s no explanation for that conclusion, it’s just one item in a short list of areas in which courts-martial are favorably compared to civilian trials. If by peers the speaker means superiors she might be on to something. Otherwise, I don’t think it’s a defensible statement. I’m not even aware that Article 25 is calculated to produce a panel of the accused’s peers; for better or worse that’s one of the most distinctive things about a court-martial.

Who’s responsible for the spot, anyway? Someone must have thought it necessary to market the UCMJ to the service members that are subject to it. Is there some larger concern for the UCMJ’s image in the service that I’m not aware of? Was there JAG input into the spot? Into the script?

I only saw the spot one or two times. Maybe an overseas reader can fill in a little more. And if anyone knows what the producers of the spot were trying to accomplish, I’d like to know.

Yeah, I figured out how to do hyperlinks.

I can’t seem to pull up the lower court’s opinion here in Qatar (I’m on R&R), and I noticed that the granted issue seems at variance with CAAFlog’s description of the issue, which discusses post-trial misconduct. Is anyone familiar with this case, or at least able to pull up the opinion?

-Qatar Qlipper
(Yeah, I posted from here just so I could write that.)

Although he worked a stone’s throw from my office, I don’t recall meeting him. My boss knew and admired him. He withdrew a retirement request for the chance to come and help out here in Afghanistan. He leaves behind a wife and three children.

My complaint pertains to the way CAAF analyzes whether a prior act is admissible on the basis that it is part of a common scheme or plan with the charged misconduct. In particular, I disagree with the emphasis CAAF places on whether the two acts in question are substantially similar to one another. The way CAAF approaches the “common scheme or plan” today can be traced to the CMA decision in United States v. Brannan, 18 M.J. 181 (1984). In Brannan, the accused faced court-martial for inviting PFC Hall and Specialist Four Jones into his pickup truck, producing two marijuana cigarettes, and inviting both Hall and Jones to “fire it up.” After the three smoked the marijuana, the accused produced a paper bag full of smaller plastic baggies and offered to sell additional marijuana for $25 or $30 per bag.

At trial, the government sought to introduce evidence that the accused had previously transferred baggies of marijuana to other Soldiers on three different occasions, and that he had smoked marijuana previously. The government asserted that this evidence tended to show “a common scheme, plan or design [by appellant] for the continual sale of marihuana to troops on this post.” Id. at 183. CMA considered that argument thus:

“In order for the other offenses of appellant to be relevant for the above
purpose, they must be . . . almost identical to the charged acts and each other
. . . so as to naturally suggest that all these acts were results of the same
plan. United States v. Danzey, [594 F.2d 905, 913 (2nd Cir. 1979).]
. . . [T] he absence of similarity of acts seriously undermined the relevance of
this evidence to show the plan particularly averred by trial counsel.”

Id. at 184.

While I agree with the result of that analysis, the reliance on the dissimilarity of the offenses to show lack of a common scheme or plan is (in my humble opinion) a logical glitch that is causing confusion in the court’s 404(b) analysis to this day. The implicit assumption that the court makes is that two bad acts that originate from the same scheme are necessarily going to be “almost identical.” But why? Doesn’t a criminal scheme frequently involve multiple, interdependent bad acts that are dissimilar? For example, might not a criminal hatch a scheme to steal a firearm and shoot someone? I tend to think that by looking for similarities, courts are more likely to scoop up bad acts that show propensity to commit bad acts of that kind while disregarding the extrinsic bad acts that complete the picture of a larger criminal scheme or plan.

I’m not saying the court just made it up. The cases the court relies on (Danzey, supra, and United States v. Dothard, 666 F.2d 498 (11th Cir. 1982)) give some support to this approach. Those courts, in turn, cite to Evidence stalwarts McCormick and Wigmore. I know, I know–I should stop there. That really ought to be good enough. But it bothers me that the circuit court quotes McCormick for the proposition that the similarities must amount to a “device [that] must be so unusual and distinctive as to be like a signature.” Danzey, 594 F.2d at 913, fn 6, quoting McCormick’s Handbook of the Law of Evidence § 190, at 449 (E. Cleary ed. 1972). This is a rationale I associate with proving identity, a concept distinct (at least in my own mental evidence hornbook) from the common scheme or plan basis for admissibility. Perhaps these rationales were more amorphous in the pre-FRE days when the McCormick wrote his treatise.
The focus on the similarity of the extrinsic act with the charged act has dominated CAAF’s “common scheme or plan” doctrine ever since. See, e.g., United States v. Mann, 26 M.J. 1 (1988), United State v. Munoz, 32 M.J. 359 (1991), United States v. McDonald, 59 MJ 426 (2004). I think this approach misses the mark. It’s both over- and under inclusive. Anyone else noticed this? Am I missing something?

CDR Klant let me know today that former Air Force Captain Dale Noyd (Noyd v. Bond) recently died. Here’s a copy of the NYT obit. The picture of a seven-year-old Dale Noyd circa 1938 wasn’t part of the article, but I’m pretty sure it’s him. There can’t have been too many Dale Noyds growing up in Wenatchee in the 30’s.

By DOUGLAS MARTIN
Published: January 28, 2007
Dale E. Noyd, who as a decorated Air Force captain and fighter pilot attracted worldwide attention in the 1960s as a conscientious objector who objected to only one war, the one in Vietnam, died Jan. 11 in Seattle. He was 73.

The cause was complications of emphysema, his son, Erik, said.
Captain Noyd seemed the model serviceman. He was the only member of the 1955 Reserve Officers Training Corps class at Washington State University to be offered a regular, not a reserve, commission. He received a medal for successfully landing a badly damaged nuclear-armed F-100 fighter at an English airfield. He taught at the Air Force Academy.

But after 11 years in the Air Force, he became deeply disturbed by the Vietnam War, which he regarded as immoral and illegal. In 1966, he wrote an eight-page single-spaced letter to the Air Force asking that he either be allowed to resign his commission or be classified a conscientious objector. Denied on both counts, Captain Noyd took his case to federal court in Denver in March 1967, saying he was motivated by humanist beliefs. The American Civil Liberties Union, which represented him, said it was the first lawsuit claiming conscientious objector status based on opposition to a specific war. In December 1967, the Supreme Court refused to hear the case, saying it belonged in military jurisdiction.

At roughly the same time, the Air Force ordered Captain Noyd to train a pilot who was likely to be assigned to Vietnam. Captain Noyd refused and was court-martialed for disobeying orders.

His military trial, before a panel of 10 officers, was significant in part for what it did not address: the captain’s assertions that the war was immoral and illegal as well as the basis of his professed humanism. The central issue of whether his objecting to a particular war, rather than all wars, was valid was also ruled out as a matter for the court.

The panel did allow discussion of how Captain Noyd’s humanist beliefs affected his character. In the sentencing phase of the trial, a theologian told the judges, all Vietnam veterans, that risking one’s life for a core belief, as the officers had all done in battle, constituted a religious act. That was persuasive. The prosecutor summarized this view as “two religions butting heads against each other.” As a result, Captain Noyd was sentenced March 9, 1968, to a year in prison instead of the five years he could have received. He was given a dishonorable discharge and stripped of his pension and benefits.

Dale Edwin Noyd was born in Wenatchee, Wash., on May 1, 1933. His superior R.O.T.C. record gave him the privilege of choosing his first base, at Woodbridge, England.

In the resignation letter preceding his suit, he wrote, “My three-year assignment in an operational fighter squadron — with the attendant capacity for inflicting terrible killing and destruction — was based on the personal premise that I was serving a useful deterrent purpose and that I would never be used as an instrument of aggression.”

What changed Captain Noyd’s world view were three years he spent at the University of Michigan doing graduate work in psychology. The Air Force paid his tuition in return for six more years of service.

Charlotte Doyle, a fellow graduate student who is now a psychology professor at Sarah Lawrence, said in an interview that Captain Noyd arrived in class in a crisp blue uniform and rose whenever a woman entered the room. Quickly, though, he was swept up in intellectual conversations with other students.

“His whole intellectual framework changed,” Ms. Doyle said in an interview.
The Air Force sent him to teach psychology at the Air Force Academy. He assigned readings of French existentialists and tried to encourage a liberal arts atmosphere.

Captain Noyd served his sentence at Cannon Air Force Base in Clovis, N.M., and was released in December 1968. A month later, the Supreme Court declined to hear an appeal of his case but noted that under a recently passed law, Captain Noyd should not have been imprisoned during his appeal.

Mr. Noyd was twice divorced. In addition to his son, of Kirkland, Wash., he is survived by his daughter, Heather Taylor, of Vancouver, Wash.; his brother, Gus, of Wenatchee; and five grandchildren.

He went on to teach at Earlham College in Indiana for two decades, then built a boat and sailed it to Tahiti. He lived in Hawaii before coming home to Washington State when his health began to fail.

Mr. Noyd kept two certificates on the wall of his study, his son said. One was his commendation for heroism, the other his dishonorable discharge.