CAAF has posted its opinion in United States v. Clayton here.  Due to my ongoing computer limitations, I can’t open it.  Perhaps one of my CAAFlog colleagues will post a synopsis.

In United States v. Ross, __ M.J. __, No. 09-0242/MC, a Marine Corps warrant officer was charged with possessing child pornography on divers occasions.  The military judge found Ross guilty, but excepted the words “on divers occasions” over a certain period of time.  Today, applying the Walters line of cases, CAAF reversed Ross’s findings and sentence and dismissed the charges against him.  Judge Ryan wrote for a unanimous court.  The opinion is available here.

Interestingly, Ross’s appeal was filed at NMCCA without raising a Walters (or any other) issue.  NMCCA specified the issue and then, in this opinion, affirmed.  United States v. Ross, No. NMCCA 200800313 (N-M. Ct. Crim. App. Dec. 4, 2008) (per curiam).  NMCCA reasoned that because the possession was a continuing offense, the “on divers occasions” language was mere surplusage so striking it didn’t render the findings ambiguous.  CAAF disagreed, explaining that “there was possession of distinct sets of images on three different media.  While the military judge may have deemed the possession ‘continuing’ and deleted the words ‘on divers occasions’ as surplusage,” that isn’t necessarily the reason for those words’ exception.  Ross, slip op. at 8.  Possession, CAAF observed, “though a cotinuing offense — may still be appropriately charged ‘on divers occasions.’”  Id.

Here’s the part of Ross that I particularly like.  Ross provides guidance for how a finding of guilty may be affirmed in some future case despite an unexplained exception of “on divers occasions” language from a finding:  “the Government could nevertheless prevail were we to conclude that the evidence was legally insufficient to show that Appellant was guilty” with respect to all but one potential basis for conviction.  Where the finding as excepted could have only one potential basis, then the verdict would not be ambiguous.  That reasoning, however, doesn’t apply in this case becasue there could have been a legally sufficient basis for a finding of guilty on more than one theory.

Citing last month’s decision in United States v. Trew, 68 M.J. 364 (C.A.A.F. 2010), CAAF notes that the remedy here is to set aside the findings and the sentence and dismiss the charge and its spec with prejudice.

Ross will likely define the battleground in future Walters-type cases.  The issue will become whether all but one potential basis for conviction would be legally insufficient.  Another issue likely to be contested in future cases is whether that analysis applies only in a judge-alone case like Ross–where the fact finder is presumed to know and apply the law–or whether it applies in members cases as well.

CAAF issued a per curiam opinion today affirming the findings and sentence in United States v. Craig, No. 09-0759/NA.

CAAF explains that it “granted review to consider whether the military judge committed plain error by not sua sponte declaring that the offenses of receiving and possessing the same child pornography were multiplicious.”  Id., slip op. at 2. 

NMCCA had held that because the offenses weren’t facially duplicative, the multiplicity challenge was waived by the accused’s unconditional guilty pleas.  CAAF agreed, applying its decision in United States v. Campbell, 68 M.J. 217 (C.A.A.F. 2009). 

So just as we must await a case in which a TC actually attacks the qualifications of a government-selected substitute expert before getting an answer to one of the granted issues in Anderson, we must await a case in which the issue is properly preserved to know whether multiple charges for possessing the same image of child pornography on multiple media are multiplicious.  [Please note that this observation isn't meant to be critical; the development of the law depends on properly preserved issues being advocated by parties with a stake in the outcome.  I'm simply noting that those issues are still unresolved.]

CAAF today released a deeply divided decision in United States v. Cowgill, No. 09-0376/AF, a search and seizure case.  It’s available here.  Judge Baker, joined by Judge Ryan, delivered the judgment (but not opinion) of the court.  Judge Stucky concurred on a separate basis.  Chief Judge Effron, joined by Judge Erdmann, concurred in part and dissented in part.

I doubt I’ll have time to get into all of the nuance of the opinion tonight and I’m hitting the road on Sunday.  I’ll try to post more details before then, but welcome any of my CAAFlog colleagues to beat me to the punch.

Here are the Cox Commission II recommendation and explanation that were relevant to one of the granted issues in Anderson:

5. Prohibit trial counsel from attacking the credentials of an expert witness if the government provided that specific expert to the defense as an adequate substitute for an expert consultant requested by the defense.

Under established precedent, if the convening authority or the military judge determines that the defense counsel is entitled to expert assistance for consultation and case preparation, thedefense is not entitled to consult with a specific expert.7   [7 United States v. Garries, 22 M.J. 288, 290-91 (C.M.A. 1986); United States v. Ndanyi, 45 M.J. 315, 319 (C.A.A.F. 1996).]  If the government can provide an adequate substitute who has the requisite expert credentials and qualifications, the defendant must either accept the substitute or waive the right to government-funded expert assistance.  Witnesses at the hearing informed the Commission of a practice sometimes engaged in by government counsel whereby the government provides the defense with substitute expert assistance for trial preparation and if that government-substituted expert testifies for the defense at trial, the government attacks the expert’s qualifications. We are troubled by a practice that allows the government to attack the credentials of the very expert that the government had previously offered to the defense as an adequate substitute for a defense-requested expert. The Commission recommends a change in the Rules for Court-Martial to prevent the government from attacking the credentials of an expert witness whom the government had previously made available to the defense as an adequate substitute for a defense-requested expert. This would not, of course, preclude the government from challenging the defense expert witness’s methodology or other aspects of the witness’s testimony.

United States v. Anderson features disturbing facts and an intriguing issue.  Today’s CAAF opinion, available here, highlights the former but side-steps the latter.  Judge Ryan wrote for a unanimous court.

Anderson was an Army Specialist who tried to provide military secrets to our nation’s enemies, including information about the vulnerabilities of U.S. military vehicles.  Fortunately, the recipients of that information were not Muslim extremists, as he believed, but rather a member of a group of concerned citizens trying to prevent terrorist attacks and, later, law enforcement agents.  Anderson was convicted of attempting to give intelligence to the enemy, two specs of attempting to communicate with the enemy, one spec of attempting to give aid to the enemy, and — in a gratuitous act of piling on that led to wholly unnecessary issues in this case — simple disorder in violation of Article 134, an offense that carries a maximum of 4 months’ confinement to go along with all of the other LWOP-authorized offenses. 

Anderson pleaded not guilty, was convicted, and sentenced to confinement for life (not LWOP) and a DD. 

One of the granted issues in the case was:

WAS APPELLANT AFFORDED A FAIR TRIAL EVEN THOUGH HIS REQUEST FOR A FORENSIC PSYCHIATRIST WAS DENIED AND THE GOVERNMENT THEREAFTER AVAILED ITSELF OF A FORENSIC PSYCHIATRIST AND ATTACKED THE QUALIFICATIONS OF THE VERY EXPERT IT DID MAKE AVAILABLE TO THE DEFENSE?

CAAF side-stepped that issue.  The defense had requested the services of a particular civilian clinical and forensic psychologist.  The CA denied the request.  The defense subsequently asked the military judge to overturn that denial.  The military judge declined to do so, finding no indication that Anderson lacked mental capacity or was unable to form specific intent.  The defense then successfully requested the assistance of a different clinical psychologist.

The Anderson case had generated some buzz in the military justice community because it presented an issue that was the subject of one of the Cox Commission II’s recommendations.  Anderson was understood (if you’ll excuse the passive voice) as presenting an estoppel-esque argument:  can the government deny a defense expert witness request, provide the defense with an inferior substitute, and then exploit the inferiority of the substitute’s credentials?  But CAAF doesn’t ultimately answer that question.

CAAF observes that the military judge “denied Appellant’s request that the Government be prevented from attacking Dr. Norris’s [the defense clinical psychologist's] credentials, holding that such cross-examination would be relevant if [he] strayed beyond the bounds of his expertise.”  But “[t]he Government’s cross-examination of Dr. Norris was quite limited.  While the Government did draw attention to the fact that he was a clinical and not a forensic psychologist — and therefore not an expert in the interface between the law and psychology — neither the accuracy of Dr. Norris’s psychological evaluation nor his qualification to make such an evaluation was called into question.”  The defense also presented Appellant’s treating psychiatrist.  A government forensic psychiatrist who testified on rebuttal characterized the defense mental health professionals’ opinions as “all reasonable considerations,” but explained why those considerations affected neither Anderson’s “intellectual functioning nor his ability to tell the difference between right and wrong.”  While the Government expert disagreed with portions of the treating psychiatrist’s testimony, he “did not comment on any of the assertions made by Dr. Norris,” the clinical psychologist.

CAAF doesn’t address whether the military judge erred when he denied the defense request to prevent the prosecution from attacking Dr. Norris’s credentials, though the opinion suggests that the Government’s effort to emphasize that Dr. Norris wasn’t a forensic psychologist didn’t matter.  Rather, CAAF focuses on whether the defense was prejudiced by the Government forensic psychiatrist’s testimony on rebuttal, holding that it wasn’t.  So the estoppel-esque argument that the Cox Commission II addressed in its report appears to remain undecided.

CAAF then enters into a multiplicity/unreasonable multiplication of charges/preemption analysis.  The most striking feature of this discussion is that it relies on a prong of the unreasonable multiplication of charges test about which CAAF expressed concern in Quiroz.  In Anderson, CAAF writes:  “Five factors should be considered when determining if multiple findings of guilt constitute an unreasonable multiplication of charges . . . (4) Does the number of charges and specifications unfairly increase the appellant’s punitive exposure?”  Anderson, slip op. at 18 (quoting United States v. Quiroz, 55 M.J. 334, 338 (C.A.A.F. 2001)) (emphasis in original).  But in Quiroz, CAAF remanded the case due to NMCCA’s use of the “unfairly increase” standard.  CAAF wrote: 

[W]e have reservations about the lower court’s reference to a factor addressing whether “the number of charges and specifications unfairly increase[s] the appellant’s punitive exposure.”  The term “unfairly” could be viewed as applying the factor under an equitable rather than a legal standard, in light of the lower court’s reference to its “equitable power” in its initial decision.  52 MJ at 513.  The factor may be used, however, so long as it addresses the question in terms of the legal issue as to whether the number of charges and specifications “unreasonably” increased appellant’s punitive exposure.

Quiroz, 55 M.J. at 338.  It appears that until today, no post-Quiroz CAAF opinion had used the “unfairly increase” standard.  Rather, CAAF evaluated whether the charges and specs “unreasonably increase the appellant’s punitive exposure.”  See, e.g., United States v. Paxton, 64 M.J. 484, 491 (C.A.A.F. 2007).  Anderson introduces some uncertainty as to how the unreasonable multiplication of charges test should be framed going forward.

CAAF has released its opinion in United States v. Maynulet, which is available here.  CAAF rejects a mistake of law challenge to an Army captain’s shooting of a wounded Iraqi soldier.  The captain maintained that he interpreted a portion of the ROE briefing indicating that that “unnecessary suffering” should be avoided as permitting a mercy killing.  CAAF held that a mistake of law defense is unavailable in this situation and emphasized that the ROE briefing also directed:  “Do not engage anyone who has surrendered or is out of battle due to sickness or wounds.”

Judge Baker wrote for a unanimous court.

This appears to be the Week of the Highly Factually Specific CAAF Opinion.  Today CAAF announced its decision in United States v. Trew, __ M.J. __, 09-0414/NA (C.A.A.F. Feb. 25, 2010).  CAAF reversed the Navy-Marine Corps Court, holding that the military judge’s statement that she found the accused guilty of “the one occasion” without further clarification precluded the CCA from knowing what act was the subject of conviction and what act was the subject of acquittal, thus requiring reversal of the findings and sentence and dismissal of the charge.  In this case, it was a question from the trial counsel that led to the military judge’s statement undermining her previous announcement of findings.  And CAAF once again declined to return the case to the military judge for possible clarification, concluding that to do so would offend R.C.M. 1102(c)(1)’s prohibition against post-trial sessions “for reconsideration of a finding of not guilty to any specification, or a ruling which amounts to a finding of not guilty.”

Judge Erdmann wrote the opinion of the court.  Judge Stucky concurred in the result, opining that assault consummated by a battery isn’t an LIO of indecent acts with a child.  The majority declined to address the LIO issue.  Trew, slip op. at 3 n.2.

CAAF today issued this fact-specific opinion rejecting an IAC claim based on a trial defense counsel’s failure to seek psychiatric records of a complaining witness.  United States v. Green, __ M.J. ___, No. 09-0523/AF (C.A.A.F. Feb. 24, 2010).  Judge Stucky wrote for a unanimous court.  CAAF concluded that failure to seek the records, if they existed, wasn’t prejudicial.

CAAF also indicated that the Air Force Court erred during its analysis of the IAC claim by considering court members’ statements “that they had only convicted Appellant of offenses for which there was corroborating evidence.”  But because CAAF reviews IAC claims de novo, it found that the error didn’t matter.

In United States v. Ellis, __ M.J. ___, No. 09-0382/AF, CAAF held that the military judge didn’t abuse his discretion by allowing a government expert to testify about the accused’s risk of recidivism.  Judge Erdmann wrote the opinion of the court.  Judge Baker concurred in the result.

Ellis was convicted of sexual offenses with an actual minor and indecent communication with an individual he believed to be a minor, as well as possession of child pornography.  During the government’s sentencing case, a forensic psychiatrist testified about an instrument called Static 99 that was developed from a statistical study of men released from incarceration for sexual offenses.  He testified that “the instrument was found to have a seventy percent rate of predictive validity and was well accepted within the scientific and medical communities.”  Over defense objection, he testified that the accused “fell into the moderate high category for risk of recidivism, which reflected a thirty-eight percent chance of recidivism over a fifteen-year window of time.” 

CAAF rejected a defense challenge to the sufficiency of the psychiatrist’s basis to draw a conclusion.  The expert, CAAF observed, “reviewed the charges and specifications, the extensive stipulation of fact, the forensic analysis of the hard drive and the listing of the images identified there,” and chat logs.  The expert also “listened to the guilty plea inquiry, and reviewed the rehabilitation options at Cannon Air Force Base.”  That provided a sufficient basis for his opinion, CAAF ruled.

CAAF also ruled that challenges to the Static 99 methodology “went to weight rather than admissibility.”  But CAAF dropped a potentially important footnote observing:  “Although Static 99 is widely used, the issue as to whether it would meet the Daubert standard is the subject of ongoing judicial debate.  See Judge Posner’s critical discussion in McIlrath, 512 F.3d at 425.”

Judge Baker wrote “separately to emphasize that the result in this case is limited to the facts of this case.  Among other things, this was a military judge alone sentencing proceeding and Appellant did not object to the admission of the Static 99 information on Daubert grounds.”  While emphasizing case-specific grounds to conclude that the accused in this case received individualized sentencing, Judge Baker observed:  “A formulaic methodology used for sentencing such as the Static 99 used here would seem to convert individualized consideration into a numeric calculation based on static
factors, including matters that in the military justice system are inherently discretionary, like whether the prosecutor charges conduct ‘on divers occasions’ or through multiple counts.”