But 2011 also saw some of the most important and well done military justice articles I’ve seen.  And they were almost all done by McClatchy.  This year’s bumper crop of important stories began in March with the first of several stories this year about problems with USACIL.  McClatchy’s best work this year was a series comprehensive and serious-minded articles on the  ”new” Article 120 and sexual assault prosecutions in the military.  The emergence of quality reporting on military justice matters is an important story in itself.

J.B., JG, Double Vision, et al.:

Thanks for pointing out what happens when I blog late and work late at the same time.  I’ll have to cut out some of the work.

#10. United States v. Sweeney: 2010 was a big year for Crawford and confrontation, and 2011 promised to bring some clarity to the issue, particularly in the context of court-martial prosecutions based on urinalysis.    In Sweeney, CAAF held that both the cover memorandum and the specimen custody document of the drug lab’s urinalysis packet “were plainly and obviously testimonial,” and should not have been admitted without the government having produced the analyst responsible for producing the information in the documents.  It’s hard to imagine that this does anything but further suppress commands’ appetite for courts-martial in urinalysis-based drug cases.

#9. Congressional preference for military commissions: Commissions don’t get a lot of ink (er, electrons?) on CAAFlog, but when historians look back on military justice in 2011, Congress’s decision to make military commissions the tribunal of choice for detainees may seem significant.  Of course the President’s signing statement suggests that then again, it may not.

#8.  United States v. Manning:  I’ll admit this one didn’t make my personal list at all.  Nothing happened.  Of course when you’re in pretrial confinement and nothing is happening, that can be a story in itself.  I suspect this will be higher on next year’s list.

Over to No Man for the next three on the list.

Although the letter was addressed to the Secretary, the proposals would require substantial statutory changes, and would functionally remove commanders from their role as convening authority in sexual assault cases.  Instead of having commanders determine the proper disposition of cases, Ms. Parrish and Mr. Jacob urge that “impartial experts” be given the task:

The great deference afforded to command discretion, sets up a dynamic fraught with conflict of interest and potential for abuse of power.

Some are now arguing that base commanders are yielding to political pressure and are automatically referring cases to the UCMJ. Although we have not seen credible data to support this assertion, this claim validates what we are advocating: that the authority to adjudicate cases of sexual assault and rape be given to impartial experts to determine the path of these cases and care of the victims.

In order to solve this problem, we believe that DoD must take the prosecution, reporting, oversight, investigation, and victim care of sexual assaults out of the hands of the normal chain of command and place the jurisdiction in the hands of an impartial office staffed by experts – both military and civilian.

The entire letter can be found here.

You may recall that in 2009, NMCCA made news by ruling that the self-reporting requirement in the Navy’s Alcohol and Drug Abuse Prevention and Control instruction impermissibly compelled incriminatory testimonial communication.  The Judge Advocate General of the Navy certified the matter to CAAF.  In May 2010, CAAF avoided the constitutional question but affirmed the lower court, holding that the drug and alcohol instruction was inconsistent with the higher authority of Article 1137, Navy Regulations, which at the time exempted members’ own misconduct from from the general requirement to report all known offenses.

Rather than change the self-reporting requirements, the Secretary of the Navy amended Article 1137, removing the blanket exemption pertaining to members’ own offenses, and requiring members to report civilian convictions (as well as similar dispositions such as deferred prosecutions) to superior authority.  The amended Article 1137 also permitted CNO and the Commandant of the Marine Corps to promulgate regulations requiring members to report civilian arrests if those regulations “serve a regulatory or administrative purpose.”  Although this change addressed the more narrow regulatory issues discussed in the CAAF opinion, the broader self-incrimination issues raised by the CCA opinion were not addressed by changes in instructions until last week.

CNO identified seven OPNAV instructions containing self-reporting requirements that were potentially implicated by Serianne.  The CNO canceled the self-reporting requirement in the drug and alcohol instruction (the one that had been at issue in Serianne) and modified paragraph 510.6 of OPNAVINST 3120.32C (the Standard Organization and Regulations of the Navy) to remove the requirement that members state the facts and circumstances concerning an arrest.  The new paragraph still requires that members disclosure arrests or criminal charges, the date of an arrest or charge, as well as the offense for which they were arrested or charged.  The amended instruction forbids anyone from questioning a member who reports an arrest without advising them of their Article 31(b) rights.

Five other instructions potentially requiring members to disclose offenses were also mentioned.   A requirement that members on “career intermissions” disclose arrests was found to be based on a legitimate reporting requirement.  Four other instructions touching on areas such as overseas assignment screening and participation in child and youth programs were found to be valid specific application or screening processes and were also left undisturbed.

The NAVADMIN announcing these changes is available here. 

Where all think alike, no one thinks very much.

Although journalist and author Walter Lippmann would have appreciated a splintered NMCCA’s unpublished opinion in United States v. Caldwell, I’m not surprised to see that the court quickly decided on its own motion to reconsider the case en banc.

Private Lazzaric Caldwell, a Marine stationed in Japan and troubled by a host of personal and discipline difficulties, attempted suicide by cutting his wrists.  He had just learned that his commanding officer had ordered him into pretrial confinement.

At court-martial, Caldwell pleaded guilty to order violations, larceny, and self injury.  He pleaded not guilty but was convicted of another specification of an order violation alleging that he used spice.  On appeal, Caldwell raised five assignments of error, among them an assertion that the military judge should have ordered a R.C.M. 706 examination, that the guilty plea to larceny was improvident, and that public policy ought to prohibit conviction for self injury in the case of suicide attempts.  If you’re keeping score at home, that’s three charges, six specifications (it would appear), and five assignments of error.  Now go sharpen your pencil and we’ll add the panel of three CCA judges.

For our purposes, it’s easiest to deal with Senior Judge Maksym’s dissenting opinion first.  Senior Judge Maksym concluded that the trial judge should have ordered a 706 board.  Having reached that conclusion, he was unable to affirm any findings or sentence.

That leaves Senior Judge Booker and Judge Beal to deal with the remaining assignments of error, and when one of them found merit in one, that vote, combined with Senior Judge Maksym’s 706 vote, tipped the balance on the charge.

As Judge Beal would have affirmed all the findings and sentence, the swing vote proved to be Senior Judge Booker’s.  He agreed with the appellant that his role in the larceny of a belt from a retail store–which seemed to essentially amout to a wink and a nod to his girlfriend as she stole the belt–didn’t amount to larceny.  Regarding the self injury charged under Article 134, Senior Judge Booker was unconvinced that the act of self injury in question was sufficently prejudicial to good order and discipline or that it had a tendency to discredit the service. 

Because Senior Judge Booker was confident that the military judge would have at least imposed a bad-conduct discharge for the remaining offenses (Caldwell had a prior summary court-martial in his record) the court affirmed the discharge.  The court set aside a 180-day sentence to confinement.  The day after the date of the opinion NMCCA on its own motion ordered reconsideration en banc.   

 My purpose for going to Whidbey was to escort a Navy Captain to see the office and meet with the staff.  I didn’t sit in on the meetings, so I had some time.  While I was in a no-longer-used wing of the legal building, I noticed an old poster with the UCMJ printed in small print on it.  I’d seen these before, but hadn’t seen one in a long while.  I always liked these posters.  Whenever I look at one it seems like I see something that I hadn’t seen before, or had known about and forgotten.  Seeing the whole UCMJ on one sheet makes you think about it differently for some reason.

As I scanned the punitive articles, I paused at Article 120.  Of course it was the pre-2007 version.   I decided that if they ever update the poster to include the new one, it probably won’t fit on one sheet anymore.  New Article 120 might have to go on its own poster.  Past the punitive articles were the miscellaneous provisions.  It had been a while since I had read Article 137, requiring that much of the UCMJ, including all the punitive articles, be explained to every enlisted member upon entry onto active duty, again six months later, and again at every reenlistment.  I don’t remember this statute being given effect anywhere I have ever served.  Perhaps there is an instructional block on the UCMJ in boot camp that checks this box.  But who tracks folks for their six month anniversary?  Has anyone seen a reenlistment accompanied by a UCMJ brief? 

My mind went back to the new Article 120. You could hurt yourself trying to explain that. As to the burden shifting in that article, the most forthright explanation one could give to a new member is: no one—not even lawyers—really knows what it means, and it is the policy of military judges to ignore that part of the law. 

I thought some more about the implications of a requirement to explain the law to those most affected.  The rest of criminal law is largely indifferent to a potential defendant’s legal knowledge.  It’s a requirement that says something about our expectations of our legal system and the people who live with it. If you are required to explain the law to service members, it follows that the law shouldn’t be incomprehensible to them. 

I think this principle might partly explain why most of the code is so succinct and elegant. It was written to be understood, usually in one reading. Admittedly, practitioners have for a long time had to make use of sources from outside the code in interpreting the code. That might mean drawing on service usage (what is a safeguard and how do you force one?), or judicially created common law principles for example. But I think it’s okay that the code isn’t completely self-contained without reference to our legal and military heritage. Think back to Judge Baker’s dissent in Fosler.  Judge Baker, drawing on almost two centuries of Supreme Court precedent, reminds us that 

“[T]he military is, by necessity, a specialized society separate from civilian society.” [Parker v. Levy, 417 U.S. 733 (1974)] at 743. And it has, by necessity, “developed laws and traditions of its own during its long history.” Id. Because of the special distinctions separating it from the civilian society, “the military has developed what ‘may not unfitly be called the customary military law’ or ‘general usage of the military service.’” Id. at 744 (quoting Martin v. Mott, 12 Wheat. 19, 35, (1827)). The UCMJ “cannot be equated to a civilian criminal code,” id. at 749 . . .

If you accept that it’s okay to refer to service usage and general legal principles to supplement and provide context to our understanding of military law, then it suddenly becomes possible to write statutes that can be explained to service members.

Look at Article 121, for example.  You might remember from law school that there isn’t anything trickier or more complex in criminal law than larceny.  It’s hard to define, hard to plead, and hard to prove.  But the 140 words that make up Article 121 do just fine.  You can read the article, understand it, and explain it.  Or look at the scant 104 words that comprise Article 128 assault.  It’s easy to understand.  If you’re a practitioner, it draws on things you already know.  Those 104 words get a lot done.  So if 104 words are good, the 2,835 words of Article 120 should be great, right?  I think we’ve all arrived at the same answer.  Maybe part of what’s wrong with Article 120 is that it is completely untethered from the principle promoted by Article 137, and thus also from the “general usage of the military service.”  It attempts to be self-sufficient.  But in its quest to become comprehensive, it became incomprehensible.  Service members don’t get a meaningful Article 137-chance to understand the rules and conform their conduct.  Even though the statute bursts with defined terms and should, in theory, give clearer notice of proscribed conduct, it gives much less notice.  Even lawyers think it’s gobbledygook. 

The thesis, then, of this stream of consciousness (if there is one) is that the Fosler problem—or at least Judge Baker’s problem with Fosler—is related in some fundamental way to the Article 120 problem.  Both the majority in Fosler and the drafters of Article 120 could be accused of having a certain blind spot for the “customary military law.”  Both uprooted a settled practice in reliance on a statute; one an old statute interpreted a new way, and the other a brand new statute that feels as out of place in our code as Jane Fonda in the Whidbey O Club.

I know Congress is having another crack at Article 120.  I hope they have Article 137 in mind when they draft the new new Article 120.  If an E-7 can’t read it and then explain it to an E-1, it shouldn’t be in the code.  It’s a special kind of system that doesn’t just presume knowledge of the law on the part of a potential accused.  It’s a separate system that operates in a separate society.  I hope Congress remembers that this year.

The alleged victim, CL, had a long-term affair with a male roommate in Jacksonville, Florida, while her husband was stationed at Fort Stewart.  CL’s husband, who described himself as “hot tempered,” kicked down the door of his wife’s lover.  Nevertheless, at the time of trial, both CL and her husband described their marriage as good.

CL’s husband deployed, asking a family friend, Specialist Jackson, to look after his wife.  After CL put her child to bed one night, and while Jackson was at the home, CL consumed three to four shots of gin.  She had also been taking Xanax and Effexor. 

Several other friends came over, including appellant.  CL continued to drink.  Jackson and the other friends (except Appellant) left the house.  Eventually the friends went back into the apartment where they heard the bed squeaking and people moaning.  The lights came on to reveal CL and appellant have sex.  Someone told appellant to get off CL.  Appellant allegedly responded by telling the friends to leave because he was “almost done.”  The friends left.  Witnesses gave conflicting testimony as to the CL’s apparent level of intoxication and her reaction when the lights came on.  The next morning CL remembered having sex with Appellant, stating something to the effect of, “I can’t believe I did that” and “I fe[el] horrible.”

The defense sought to cross-examine CL about the prior affair, arguing that this information showed that CL had a motive to lie about having consensual sex with appellant.  CL wanted her marriage to continue, and, according to the defense, the previous incident, and her husband’s reaction, shed light on why CL might claim she had been raped.

The military judge excluded testimony about the previous affair under M.R.E. 412, finding that the probative value of the evidence did not outweigh its dangers to CL’s privacy interests, and that the dangers of unfair prejudice substantially outweighed the probative value of the evidence.  ACCA affirmed. 

CAAF reversed, in a fact-intensive opinion that has, in my mind, hints of factual sufficiency doubts throughout; reading the opinion, the case seems like the kind of sexual assault not usually won by the government.  The court held that it was a ”fair inference” that a second consensual sexual dalliances would be more damaging than one, and that the defense should have been able to explore the potential effect of the first affair on CL’s willingness to tell the truth.  

The case, in my view, doesn’t mark any sea changes in M.R.E. 412 law; it seems to be an as-applied opinion in a case with a fact pattern that will ring familiar to anyone who has deployed with a military unit a few times.   

Judges Baker and Ryan dissented.

Fosler began, as many adultery cases do, as a contested rape case.  The accused was a lance corporal and a drill instructor at the Rota, Spain NJROTC when he was accused of sexually assaulting a sixteen-year-old high school student.  The case ended, as many of these cases do, with an acquittal of the Article 120 charge and a conviction for adultery.  At the conclusion of the government’s case in chief, the accused moved to dismiss the adultery charge (mistakenly under R.C.M. 917 rather than R.C.M. 907) for failure to state an offense.  The military judge noted that the specification was based on the sample specification in the Manual and denied the motion.  She instructed the members that they could convict the accused if they found the conduct to be prejudicial to good order and discipline or of a nature to bring discredit to the service. 

Judge Stucky, joined by Judges Erdmann and Ryan, acknowledged at the outset that longstanding precedent permitted omission of the terminal element from Article 134 specifications, and that the sample specifications in the Manual typically do not contain the terminal element.  Changes in the legal landscape, beginning with the Supreme Court case of Schmuck v. United States, 489 U.S. 705 (1989), and continuing through the Jones line of cases involving pleadings and LIOs, drove the break from precedent.  Both the majority and the dissents framed the decisional issue the same way: does the language in the sample specification necessarily imply the terminal element of Article 134 adultery?  To decide if the sample specification implied the terminal element, the court considered the language of wrongfulness, the possibility that adulterous conduct itself implies the terminal element, the force of historical practice and pleadings, and R.C.M. 307′s general provision that elements may be necessarily implied, asking if each, alone or together, implied the terminal element of Article 134.  The majority also took into consideration that the terminal element in an Article 134 charge may be met in three distinct ways; that an act might be prejudicial to good order and discipline without being service discrediting, and vice-versa.  The majority found that the sample specification does not necessarily imply the terminal element, and dismissed the charge and specification for failure to state an offense.

Chief Judge Effron and Judge Baker considered essentially the same factors as the majority, but each dissented.  Judge Baker called the holding a potential “sea change in practice and law” and correctly pointed out that other charges, such as larceny, traditionally rely on pleadings much less definite than the sample specification for adultery.  Judge Baker took the majority to task for leaving so many questions unanswered:  What will happen to the host of Fosler trailers (45 by Judge Baker’s count)?  What about guilty plea cases, since an accused can’t be convicted of a specification that isn’t an offense?  How could waiver apply?  Will this lead to several decades worth of cases being revisited on error coram nobis?  And, almost breathlessly, “[h]as Article 134, UCMJ, lost its capacity to serve as a  . . . fair and predictable tool to uphold good order and discipline? . . . Is Parker v. Levy . . . still good law?” 

Well.  I don’t know about all that.  But he’s right to marvel at the venerable century oaks of case law precedent uprooted and tossed aside, red Lexis stop signs twisted around their trunks.  And who knows what’s left of the 45 Fosler trailers.  (I know.  I should stop.)   I’m not sure it’s going to be total devastation, though; the guilty plea trailer next door to Fosler could miraculously emerge unscathed, in spite of it all.  My guess is that the government will plead the terminal element from now on–it’s already been recommended out of caution–and our practice will come back down more or less on its foundation.  Remember Prather?  You might not.  Lots of broad language that kind of blew itself out in Medina.  Time will tell.

I agree with the court that the counsel in this case should have discussed the conflict issue with the client.  But I’m not as far out on the “outrage” spectrum as the commentators about the prospect of the defense counsel taking the remnants of his docket with him down the hall to the trial shop. 

Both the opinion and the comments bring to mind any number of military justice idiosyncrasies that a would be unacceptable anywhere else in lawyerdom.  Stewie, the 2L off the street wouldn’t answer a hypothetical about juror selection the same way Article 25 does, either.   

I suspect that the Marine Corps officer in charge of this legal shop thought that the counsel involved were sufficiently professional–and honorable–to zealously fulfill their roles without fear of causing or suffering professional repercussions as a result of their performance.  Our system has a history of relying on the professionalism and restraint of its participants–even non-lawyer participants–where only structural protections would be acceptable in the civilian system.

I’m reminded of Justice Scalia’s discussion of our method of detailing military judges in his concurrence in Weiss v. United States.   The appellants in Weiss urged that the UCMJ’s protection of military judges from adverse actions based on the exercise of their judicial function was an inadequate substitute for an independent judiciary not subject to evaluation and detailing by the JAG.  Justice Scalia found that our history didn’t support the notion that all of our practices have to pass the civilian sniff test:    

 [N]o one can suppose that similar protections against improper influence would suffice to validate a state criminal law system in which felonies were tried by judges serving at the pleasure of the Executive. I am confident that we would not be satisfied with mere formal prohibitions in the civilian context, but would hold that due process demands the structural protection of tenure in office, which has been provided in England since 1700, was provided in almost all the former English colonies from the time of the Revolution, and is provided in all the States today. (It is noteworthy that one of the grievances recited against King George III in the Declaration of Independence was that “[h]e has made Judges dependent on his Will alone, for the tenure of their offices.”)

Weiss v. United States, 510 U.S. 163, 198-99 (Scalia, J., concurring) (citations omitted) (emphasis and second alteration in the original).

So I’m not joining the commentariat’s collective facepalm.  Sometimes nonstructural safeguards–even ones that primarily function by relying on the honor and integrity of the system’s participants–are sufficient in our system. It was a mistake to not discuss the matter with the client.  But maybe someday this same opinion gets written about our practice of assigning counsel out of the same command to conflict cases.  Or having convening authorities pick members.  I see Lee more as evidence of a continued trend away from reliance on people and their integrity and toward process and structure.  Neither approach is perfect.

After being convicted by members, the accused called three witnesses who opined that there was still a place for him in the Army.  The government rebutted this testimony with the testimony of no fewer than five witnesses, three of whom both ACCA and CAAF had no problem finding lacking a proper foundation for an opinion of SFC Eslinger.  But the testimony went largely unobjected to, and CAAF was unwilling to find plain error or prejudice in the three-year confinement and dismissal sentence.

CAAF noted that when the government rebuts “retention evidence” it can walk a thin line between rebutting the accused’s evidence on one hand, and urging the appropriateness of a punitive discharge on the other.  CAAF also noted that it is important for the government to avoid exerting unlawful command influence when command leadership figures are used to made the case.      

Judges Erdmann and Effron dissented, stating that they lacked confidence that the members would have so severely punished the accused, an 18-year career soldier, absent the foundationless opinions of the government witnesses.

WHETHER THE U.S. ARMY COURT OF CRIMINAL APPEALS ERRED IN AFFIRMING THE MILITARY JUDGE’S RULING TO SUPPRESS THE ACCUSED’S STATEMENTS TO A CRIMINAL INVESTIGATION COMMAND (CID) AGENT.

CAAF also specified the following confrontation issue in United States v. Sweeney :

WHETHER THE COURT OF CRIMINAL APPEALS ERRED AS A MATTER OF LAW IN DECLINING TO APPLY MELENDEZ-DIAZ v. MASSACHUSETTS, 129 S. CT. 2527 (2009), IN ASSERTING THAT UNITED STATES v. MAGYARI, 63 M.J. 123 (C.A.A.F. 2006), “FOUND DRUG LABORATORY REPORTS TO BE NON-TESTIMONIAL IN NATURE,” AND IN HOLDING (1) THAT DRUG LABORATORY DOCUMENTS WERE NON-TESTIMONIAL IN NATURE, (2) THAT THE LAB REPORT WAS A RECORD OF A REGULARLY CONDUCTED ACTIVITY OF THE NAVY DRUG SCREENING LABORATORY THAT QUALIFIED AS A BUSINESS RECORD AND FIRMLY ROOTED HEARSAY EXCEPTION UNDER M.R.E. 803(6), AND (3) THAT THERE WAS NOTHING TO SUGGEST THAT THE LAB REPORT WAS GENERATED FOR COURT-MARTIAL USE.  SEE UNITED STATES v. BLAZIER, 69 M.J. 218 (C.A.A.F. 2010); UNITED STATES v. BLAZIER, 68 M.J.439 (C.A.A.F. 2010); AND UNITED STATES v. HARCROW, 66 M.J. 154 (C.A.A.F. 2008).

In non-Blazier II news, CAAF granted review of an Article 125 liberty interest issue in the Coast Guard case of United States v. Medina:

WHETHER THE GOVERNMENT VIOLATES THE APPELLANT’S CONSTITUTIONALLY PROTECTED LIBERTY INTERESTS BY FAILING TO MEET THE MANDATORY FACTORS IDENTIFIED BY THIS COURT FOR A CONVICTION UNDER UCMJ, ARTICLE 125.

CAAF ordered the parties not to file briefs on this issue, which didn’t receive any treatment at CGCCA.

The amicus brief is good.  You should read it.  It starts with a straightforward statutory construction argument that SCOTUS has jurisdiction over cases in which CAAF has granted review–not issues.  We gave some treatment to this issue here.  Beyond the straight-stick construction argument, though, are some interesting subplots. 

It doesn’t make sense from a judicial economy perspective, NIMJ argues, for appellants who win a remand at CAAF to face the possibility that they’ll lose the opportunity to seek certiorari after the remand.  That incentivizes the practice of seeking certiorari immediately after an appellant wins a remand; hardly a good use of anyone’s time.   

Also, NIMJ again takes up the 2010 change in  CAAF Rule 21(b)(5), in which CAAF began requiring petitioners in previously granted and remanded cases to specify to CAAF what issues the petitioner would seek certiorari on at the Supreme Court.  That’s right–you now have to tell CAAF what you’re going to appeal to the Supreme Court when you ask CAAF to once again grant review.  And under the Solicitor General’s (and, apparently, CAAF’s) view of Supreme Court jurisdiction, CAAF can pre-screen your issues to see if you should be allowed to trouble its superior court with them.

NIMJ’s colorful brief calls CAAF’s “boardinghouse reach” (Google it–it’s quite evocative) into the Supreme Court’s jurisdiction nonsense, and goads the justices (or at least some sleepy clerk in the cert pool) with the specter of a lower court fashioning its own rules with a view towards narrowing the statutory jurisdiction of the Supreme Court.  In case a reader unfamiliar with military appellate practice might suspect that CAAF is doing them a favor by sparing them from a flood of military petitions, NIMJ helpfully–perhaps wryly–points out that CAAF is producing about one opinion per judge per month.  Nothing to get too worried over.

The Solicitor General has already waived his right to respond.  We’ll see if the Supreme Court’s interest is piqued enough for them to order a response.

Specialist Lamel Burleson’s general court-martial convictions were affirmed by ACCA in November 2005.  But in September 2005, he had suffered a severe stroke that left him in what was believed to be a permanent vegetative state.

In February 2007, ACCA vacated its opinion affirming in the case and issued a stay until such time as Burlseon “regain[ed] appropriate capacity” to participate in his case.  In March 2010, a court-ordered board found that the appellant was able to communicate by eye movement, utilizing a computer program called Word+.  The technology, however, was troublesome, and the appellant had difficulty selecting the correct words and phrases because of involuntary eye movements. 

Relying in part on reports from appellate defense counsel, ACCA found that the appellant was simply too disabled to participate meaningfully in his case, and that his prognosis for improvement was poor.  The court vacated his case ab initio.

One of the things that surprised me from my time at Appellate Defense was the number of clients who got relief by dying or becoming severely disabled while on appellate leave.  My recollection is that two or three of my clients died and one was so severely injured that he could not participate in his case.  Most of these were young people (one was an elderly client recalled for trial well into retirement).  I suppose that, as a class, members on appellate leave may not lead the wisest of lifestyles.  Still, I was surprised by the number of appellants who didn’t live through the process.

This week at the Supremes:  Nothing of note.  The SG waived the government’s right to respond to the cert petition in Diamond v. United States, No. 10-922.

This week at CAAF: No arguments are scheduled at CAAF this week.  Sill waiting for an opinion in United States v. Medina, No. 10-0262/MC.

This week at the CCAs:  No CCA  arguments appear on the docket this short week. 

The father, Marine Corps Staff Sergeant Kirk A. Sparks, confessed to NCIS.

AS was interviewed by a social worker and a pediatrician, but she did not repeat the accusations.  At a motions hearing, she cried on the stand, and did not recount the incidents to the military judge.  The same thing happened at trial, except that she cried immediately upon entering the courtroom.

The military judge allowed the grandmother to retell the child’s account of sexual abuse in court under the residual hearsay exception.  In assessing whether the out-of-court statement had the circumstantial guarantees of trustworthiness that were equivalent with those in the codified hearsay exceptions, the court considered the spontaneity of the statement, the use (or lack of)  suggestive questioning, the declarant’s age (three at the time of the incident), and the circumstances under which the statement was made.  The court also considered that the government also “made reasonable efforts to procure other evidence” by taking the girl to a pediatrician and a social worker for a forensic interview, but that the girl would not talk about the allegations to them, either.  The court found that, even though there were inconsistencies in the recounting of AS’s statements, the military judge was aware of the facts and did not abuse his discretion in admitting them under the residual hearsay exception.

I think CAAF should take this case.  I don’t see guarantees of trustworthiness in the statements that make these statements any more admissible than the run-of-the-mill hearsay that gets excluded in the normal course of every trial.  If anything, they’re less reliable.  About three nights a week, my four-year-old comes to the dinner table insisting he washed his hands, even though I never heard the water running in the bathroom.  I don’t ask him to swear it’s true; I make him go wash his hands.  I think the difference-maker in this case was the confession.

Re-read the case (or at least my synopsis) without the confession.  If the appellant stood convicted based only on the out-of-court statements, it’s hard to imagine that any court would have come to this result.  It’s less hard to imagine knowing that all the government really needed the statement for was to corroborate the confession.  But should the fact there was a confession in the case matter to the admissibility question?  The court doesn’t quite admit that it mattered, but the court does note that–hypothetically–had the judge considered the confession, it would have ”strengthened the rationale for admitting the evidence.” 

I don’t think the statements would have been admitted had there not been a confession, and I don’t think they should have been admitted even though there was one in this case.  It just shouldn’t matter to the hearsay analysis.  Sure, it’s a hard case where you have to exclude what may have been the only corroberation for a confession.  I think this hard case made bad law.

While I’m on a roll, I note with interest the court’s approving take on the government’s attempts to create evidence by having the child repeat the story to a pediatrician.  Defense counsel are used to child victims being taken to pediatricians so that the child’s account to the doctor can be used in trial under the statement for medical diagnosis hearsay exception.  But for that to work, everyone is supposed to pretend that the trip to the doctor is for a medical reason, even though it is sometimes the prosecutor that suggests the visit, and there is no acute medical reason.  After all, the statement has to be for a medical purpose to be admissible.  The court, in justifying the government’s recourse to residual hearsay, comes out–perhaps inadvertently–and casts such efforts as attempts to create evidence, which I think we all kind of knew they were, anyway.

United States v. Sparks can be found here.

As to the conduct unbecoming conviction, the appellant claimed that the evidence was legally insufficient to sustain a conviction.  Appellant awkwardly pursued a female Chief Master Sergeant, calling her on her personal cell phone, speaking in double entendres, sending her emails, and asking if she wanted him to visit her at her home.  Lofton’s conduct was such that the Chief Master Sergeant lost respect for Lofton, and described his attention as “creepy.”  She was not, however, offended, nor was she intimidated by Lofton.

Appellant relied on United States v. Brown, 55 M.J. 375 (C.A.A.F. 2001) for the proposition that more than crude, sexist comments are required to sustain an Article  133 charge.  Brown involved a nurse corps officer who engaged in inappropriate conduct with three other nurses of approximately the same grade.  CAAF distinguished Lofton’s conduct with an enlisted person, and found that by using bad behavior to further an inappropriate relationship Lofton had disgraced himself as an officer.

During the taking of evidence on the indecent assault portion of the trial, members of one of the victim’s family texted the victims from the courtroom, relaying others’ testimony to them before they themselves had completed their own testimony.  This behavior was witnesses by a victims’ advocate, who sent an email to other advocates about it after the trial.  The SJA turned the email over to defense counsel, who asked trial counsel for copies of the texts, and, after that was denied, asked the convening authority for a post-trial Article 39(a) session.  The convening authority did not grant the request.

CAAF held that it was error deny the request, but that the error was harmless.  Writing for the court, Judge Stucky discussed witness sequestration under M.R.E 615 and a more restrictive Air Force policy calculated to preserve the integrity of witness testimony, and wrote that the allegations of violation of that policy were more than mere unsubstantiated assertions that a convening authority was a liberty to disregard.  The convening authority abused his discretion by failing to order a post-trial hearing to look into the text messages.

The error, however, was harmless in this case.  CAAF analyzed the three affected witnesses’ testimony, the order of their testimony, and who could have shaped the others’ accounts.  At the end of what seems like the solution to an LSAT analytical problem (you remember: there are five books on a shelf by authors A, B, C, D, and E. Book C is three books away from book D . . .) CAAF found that no one’s testimony had been tainted.

Judge Effron was less sanguine about the sequestration issue.  He dissented, arguing that the majority assumed too much about the contents of the text messages, and stating that they could have been more troublesome than a simple recounting of in-court testimony.