CAAF today issued its opinion in United States v. Nerad, the last argued case that had remained undecided.  CAAF remanded the case to the Air Force Court for further consideration.  The opinion is available here.

Judge Ryan wrote for the majority in an opinion joined by Chief Judge Effron and Judge Erdmann.  Judge Baker concurred in the result.  Judge Stucky dissented.

Over the weekend, I’ll crunch some numbers and post some end o’ the term stats.

As CAAFlog notes below, the Court of Appeals for the Armed Forces today unanimously affirmed the convictions and sentence of LCDR Matthew Diaz, here.  Diaz is the Navy judge advocate that mailed names of GTMO detainees to a human rights lawyer at the Center for Constitutional Rights (CCR) in a Valentine’s Day card in January 2005. Diaz was a recent recipient of the Ridenhour Truth Telling Prize based on the conduct that won him the conviction at issue in the appeal, a dismissal, and six months in the brig.

Judge Baker, writing for the Court, held that LCDR Diaz should have been allowed to put on evidence of his honorable motives in sending the detainee names to CCR to defend against the charge of Conduct Unbecoming an Officer.  Though finding error in excluding evidence of his honorable motives, the Court also found that the military trial judge’s exclusion of the evidence was harmless because the officer’s “obligations to adhere to naval and presidential directives regarding the handling of classified information” trumped any duty he felt he had to reveal the names of GTMO detainees. The Court held that the Supreme Court’s decision in Rasul v. Bush, which LCDR Diaz cited as the source of his duty to reveal detainee names, was not intended to “supersede in some manner [LCDR Diaz's] other legal and ethical obligations.”

On the irregular plea issue the Court did not take long to find that a plea to conduct unbecoming an officer for releasing “government information not for release” was not the same as releasing “classified documents.”  Thus, Judge Baker found that the military judge did not err in rejecting LCDR Diaz’s irregular plea.

The decision also rejected LCDR Diaz’s other argument which challenged the intent element of his conviction under the Espionage Act. In rejecting LCDR Diaz’s challenge to the intent element of his Espionage Act conviction, the Court credited the testimony of government witnesses that testified about the potential injury to the US posed by the information LCDR Diaz sent in the Valentine’s Day card. The Court also found that not only should LCDR Diaz have understood this potential injury, but that his surreptitious method of sending the names, placing them in a Valentine’s Day card, evidenced he likely did know the potential danger.

The issues, while fascinating for their political significance, are relatively run of the mill military justice issues–but between the snow storms and almost Malibu oral argument it was fun getting here.

In Contreras, the majority observes: “Although the concept of a purely military offense predates the UCMJ by several decades, the MCM has never defined the phrase, and neither party here has been able to explain either the genesis or purpose of this limit on Article 130, UCMJ, prosecutions.” Contreras, slip op. at 4-5 (footnote omitted).

A look through old MCMs indicates that Congress first criminalized housebreaking as a military offense in the 1920 Articles of War as part of Article of War 93.  But the “purely military offense” limitation didn’t appear in the 1921 MCM.  Rather, the concept first appeared in the 1928 Army MCM (which was actually printed in 1927):  ”The term ‘criminal offense’ includes any act or omission violative of the Articles of War, which is cognizable by courts-martial, except acts or omissions constituting purely military offenses.”  1928 MCM, ¶ 149e.

So it appears that at some point between 1921 and 1927, the purely military offense exception was introduced into the law.  Perhaps some enterprising TJAGLCS graduate student could attempt to run that to ground as part of a research paper.  The Army JAG Decisions Digests for 1921-1927 (which don’t appear to be online) might shed some light on the subject. I assume that hard copies of the Digests are available in the TJAGLCS library.

CAAF’s Contreras opinion today, with its debate between a four-judge majority and Judge Baker, is a military wonk’s delight.  The case deals with an extremely narrow question of law — though, surprisingly, one that has been the subject of two CAAF opinions in the span of two CAAF terms:  whether the offense that a servicemember committed following an unlawful entry was a purely military offense for housebreaking purposes.  In Contreras, the question was whether the Article 134 offense of indecent acts was such a “purely military offense.”  No, held both the majority and Judge Baker.  But Judge Ryan’s majority opinion and Judge Baker’s separate opinion adopted different tests to reach that common answer.

The majority opinion describes the two competing approaches for determining whether an offense is a purely military crime: 

Appellant believes that we should determine whether indecent acts is a purely military offense by reference to the elements of the offense itself; the Government believes that we should do so by looking at the gravamen of the act comprising the criminal offense and asking whether it is an act that is, or could be, a criminal offense under the law of any state or under federal law.

The majority adopted the elements approach.  CAAF notes that it followed an elements-based approach to the same question in last term’s Conliffe opinion and in the 1983 March opinion, where the court determined that UA was a “peculiarly military” offense.  (That’s “UA” in naval speak, not Air Forcese.)  CAAF also noted that this approach is more accessible to the non-lawyers who play such important roles in the military justice system.  The opinion dryly observed:  ”We are not convinced that the President expected these non-specialists to conduct a fifty-state survey before deciding whether to charge a servicemember with housebreaking.” 

The majority proceeded to decide that despite being an Article 134 offense at the time, indecent acts wasn’t a purely military offense, since (unlike some other UCMJ provisions) Article 134 applies to anyone “subject to this chapter” and under Article 2, various categories of civilians can be prosecuted for the offense; “the text of the UCMJ provides that Article 134, UCMJ, might be violated by persons who are not and never have been in the military.”  While some presidentially specified Article 134 offenses (such as fraternization and gambling with a subordinate) are limited to military members only — and are thus purely military offenses — indecent acts wasn’t such a limited offense.

In his separate opinion, Judge Baker argues that whether an offense is a purely military crime should be determined by examining “the gravamen of the offense, and not just the elements,” an approach he refers to as a “contextual analysis.”  Judge Baker offers malingering as an offense that should be considered purely military but that would be not be considered so under the majority’s elements test.  But one can easily imagine a situation where malingering would be applied to a civilian subject to the Code.  Article 2(a)(7) of the UCMJ subjects to court-martial jurisdiction “[p]ersons in custody of the armed forces serving a sentence imposed by a court-martial.”  So a long-term inmate at the USDB who has been discharged but remains confined would be subject to the Code.  And such a confined civilian might feign illness for the purpose of avoiding work, thus violating the letter of Article 115.  Under Judge Baker’s test, would such a potential application of Article 115 to a civilian remove malingering from the category of “purely military offenses”?

Despite declaring a metaphorical war on metaphors earlier this term, see United States v. Douglas, 68 M.J. 349, 357-58 (C.A.A.F. 2010) (Baker, J., dissenting), Judge Baker offers this metaphorical contrast of his approach with that of the majority:  ”while the expedience of the ‘elements-based’ approach may possess some superficial appeal, where we are implicating the application of military law to civilians, as the majority does here, we should paint with a fine contextual brush rather than a broad one of black letter law.” Personally, I prefer the Jackson Pollock drip technique. But that’s probably an idiosyncratic approach to construing an MCM provision.

Judge Baker closes by predicting that in future cases, CAAF will use a contextual approach rather than elements-based approach. But how many future cases are we going to see dealing with the narrow issue of whether an offense committed after an unlawful entry into a building or structure is a purely military offense? It will probably be a long time before CAAF finds itself reaching for a brush with which to paint that Article 130 landscape again.

CAAF issued its opinion in Contreras, No 09-0754/AF, affirming the Air Force Court.  Judge Ryan wrote for the majority.  Judge Baker concurred in the result.

More later.

In Mullins, a forensic child interviewer for a civilian prosecutor’s office testifed at a child molestation court-martial. 

After she testified that the alleged victims’ characteristics were “consistent . . . with a child who had been sexually abused or . . . a child who may have been sexually abused,” the military judge sua sponte instructed the members that “no one who testifies in this courtroom can know if someone else is telling the truth or lying,” and that it’s up to the members to determine a witness’s credibility.

On redirect, the witness testified about the frequency of children lying about sexual abuse, saying that it was less than “1 out of 100 or 1 out of 200.” The military judge once again intervened. He asked the witness:

[D]o you have any forensic, that is, scientifically accurate way of proving whether the child is telling the truth or not? In other words . . . the only way that you typically could know that is if the child later comes forth and says “Yes, I made it up,” or . . . unless that [defendant] ultimately confesses, you would ultimately never know who was telling the truth and who wasn’t, is that correct?

The witness agreed that was correct. Neither party made an objection to the witness’s testimony.

CAAF held that the witness’s “1 out of 100 or 1 out of 200″ testimony was error under United States v. Brooks, 64 M.J. 325, 328 (C.A.A.F. 2007). CAAF also held that the error was plain and obvious.

CAAF held that the error didn’t prejudice the defense due to the military judge’s remedial measures during the witness’s testimony.

CAAF also denied relief on post-trial delay grounds. It found that even assuming unreasoanable delay, the defense hadn’t sufficiently demonstrated prejudice. The court indicated that demonstrating that unreasonable appellate delay interfered with an appellant’s ability to obtain state unemployment payments could be prejudice for appellate delay purposes, but that the record was insufficient to establish such prejudice in this case. CAAF concluded “that the record does not demonstrate that it was Appellant’s leave status that kept him from receiving the benefits and that he would not have been denied on some other grounds.” The court explained, “The record in this case does not contain . . . authoritative evidence that a person in Appellant’s circumstances would have been eligible for unemployment benefits and received them once his appeal was final.” The court concluded “that, under the totality of the circumstances, the post-trial delay was harmless beyond a reasonable doubt.”

Is it just me, or is that final sentence inconsistent with previous portions of the opinion? The court had previously said that post-trial delay’s interference with receiving unemployment insurance could be the kind of prejudice that would lead to relief. The court then basically reasoned that the defense hadn’t carried its burden to demonstrate such prejudice. I understand that the absence of established prejudice could lead the court to conclude that there was no due process violation. But that seems different than saying that the delay was harmless beyond a reasonable doubt. In the body of the opinion, the court appears to be saying that the appellant might have received state unemployment benefits faster but for the appellate delay, but the defense didn’t sufficiently prove it. To say the post-trial delay was harmless beyond a reasonable doubt, wouldn’t CAAF have to conclude that the appellant definitely wouldn’t have received such benefits? If so, I don’t understand how CAAF reached that conclusion.

Judge Baker wrote for a unanimous court.  The opinion is here.  More later.

Graner was a high-visibility Abu Ghraib case.  But as we know, high-vis is far from synonymous with “signficant” or “difficult.”  CAAF easily affirms in Graner, concluding that evidence that either wasn’t disclosed to the defense or that the defense wasn’t allowed to present wasn’t relevant or wasn’t requested with sufficient specificity.

But there are a couple of fault lines between the majority and Chief Judge Effron and Judge Baker and those fault lines concern appellate procedure.  Footnote 1 of the majority opinion observes:

Appellant and the Government have also submitted three outstanding motions related to this case. “The Court will normally not consider any facts outside of the record established at the trial and the Court of Criminal Appeals.”  C.A.A.F. R. 30A(a).  While we may remand for further factfinding if an issue concerning an unresolved fact affects the Court’s resolution of the case, C.A.A.F. R. 30A(c), none of the documents that either party seeks to submit into the record are necessary to resolve the issues of this case.  As such, all three motions are denied.

Apparently one of the documents that the majority declined to accept was an affidavit from the assistant TC stating that he had provided a copy of a 2003 DOD Report at issue to the defense more than five months before the trial began.  Chief Judge Effron considered the information from the affidavit and determined that since the affidavit was provided to the defense well before trial, there was no prejudice from the military judge’s failure to order the report’s disclosure to the defense during an Article 39(a) session before the government turned over the report.  The majority doesn’t consider the information from the affidavit and concludes that the government wasn’t required to turn the report over to the defense. 

Both Chief Judge Effron and Judge Baker would also look at documents that the defense moved to submit that the defense claims should have been but weren’t provided to the defense during the discovery process.  After looking at those documents, Chief Judge Effron concludes they wouldn’t have made a difference.  Judge Baker, on the other hand, dissents from the portion of the majority opinion denying the defense motion to submit those documents to CAAF and the portion of the majority opinion finding the they weren’t sufficiently identified by the defense’s discovery request.  Judge Baker counters by asking how the defense could have identified these documents with greater specificity at the time of trial.

The central legal import of Graner is a warning to appellate counsel that any argument that depends on CAAF accepting evidence that isn’t already part of the record faces a significant hurdle.

CAAF today affirmed the findings and sentence in United States v. Graner, an Abu Ghraib case.  The opinion is available here.  Judge Stucky wrote for the Court in an opinion joined in full by Judges Erdmann and Ryan.  Chief Judge Effron concurred in part and in the result.  Judge Baker concurred in part and dissented in part. 

More later.

United States v. Lloyd involved a dispute over whether the military judge should have ordered the government to provide the defense with a blood spatter expert.  Lloyd and a friend of his got in a bar fight with three other guys.  The three other guys were knifed in the fight.  You know that Far Side cartoon with the bear in the cross-hairs pointing at the bear next to him?  That was Lloyd’s friend.  There was considerable evidence that pointed to Lloyd’s friend as the stabber, but he told the police that Lloyd had confessed to him that “I stabbed those guys.”  The defense sought a blood spatter expert to assist the defense in understanding how some of the victims’ blood stains had gotten on Lloyd’s shirt.  The military judge denied the request.

According to the majority, the defense didn’t make a sufficient case at trial to require the production of the expert.  According to the dissent, which repeatedly cited Article 46, the defense did.

I’m an evangalist for the Gospel of Article 46, so my take on Lloyd may seem heretical.  But here goes.

I found myself nodding along with Chief Judge Effron’s dissent, which made an extremely strong case for why expert assistance was necessary in this case.  But here’s my heretical thought:  why didn’t the defense counsel have Lloyd hire a blood spatter expert?  For the very reasons that Chief Judge Effron articulated, it seemed to be really important to the defense’s case to have a blood spatter expert opine whether the physical evidence was more consistent with Lloyd having been the stabber or Lloyd’s friend having wielded the knife.  Had this  been a trial in civilian court, Lloyd wouldn’t have had an Ake v. Oklahoma right to a government-funded blood spatter expert, since he’s an E-4 and therefore isn’t indigent.  Had Lloyd hired a blood spatter expert for an initial consultation and found that the expert’s analysis would be helpful, the defense counsel could have then made a compelling case for the expert (or an adequate substitute with the same opinion) to be hired at government expense as an expert witness for the defense.

Of course, it’s possible that the defense counsel in this case did have Lloyd retain a private blood spatter expert whose analysis wasn’t helpful to the defense.  If so, we’ll never know that.  But I do wonder whether military defense counsel are sometimes too shy about asking their clients to pay for expert assistance.  Paying a blood spatter expert for a consultation in this case would have been far less costly than being convicted, locked up for a year, and then booted out of the Air Force with a BCD — especially if it was the grinning bear next to Lloyd who actually knifed the three guys in the bar.