Here’s a link to audio of Tuesday’s oral argument in United States v. Brissette, No. 2011-07.

A few weeks ago Col Sullivan wrote about VADM Brown’s application for an extraordinary writ (as the Convening Authority) in a pending court-martial (actually, 2 pending GCMs). The case was Brown v. Tousley, Misc. Dkt. No. 001-12 (C.G. Ct. Crim. App. Nov. 1, 2011), the Respondent was the trial Military Judge, and the CGCCA dismissed the petition because there were pending motions for reconsideration at the trial level.

The issue was the military judge’s order that the cases be tried at Seattle, Washington, as opposed to Alameda, California, as specified in the convening order. (You know, Alameda. It’s where they keep the nuclear wessels).

We get the rest of the story in Brown v. Tousley II, Misc. Dkt. No. 002-12 (C.G. Ct. Crim. App., Nov 17, 2011). In orders dated 24 October and 25 October, the Respondent (the trial Military Judge) ordered that the two general courts-martial would be tried on 17 and 30 January 2012 in Seattle, WA. He also docketed pre-trial 39(a) sessions for 19 and 21 December.

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Yesterday, the N-MCCA denied a petition for an extraordinary relief in McMurrin v. United States, No. 200900475 (N-M Ct. Crim. App., 20 Nov 2011). This is the same Fireman McMurrin as United States v. McMurrin, 69 M.J. 591 (N-M. Ct. Crim. App. 2010) (en banc) (aff’d, 70 M.J. 15 (CAAF, 2011)) (blog posts here and here). In that case, some findings and the sentence were set aside and a rehearing on sentence authorized.

The rest of the story comes from yesterday’s order:

Captain (CAPT) Paul C. LeBlanc, JAGC, USN, and Captain (Capt) Michael D. Berry, USMC, represented the petitioner before both appellate courts and formed an attorney-client relationship with the petitioner. . . .

In June 2011, CAPT LeBlanc and Capt Berry requested that the CA fund their representation of the petitioner at his courtmartial proceedings. The CA declined. In July 2011, charges of negligent homicide and failure to obey a lawful order were preferred and the CA directed an Article 32 investigation into those charges. The Article 32 investigation was held in August 2011. CAPT LeBlanc and Capt Berry were not present. The newly preferred and investigated charges were then referred to a general court-martial. The charges which were affirmed by this court and returned to the convening authority with a rehearing on sentence authorized are not before the current court-martial. In September 2011, during pretrial motions, the military judge denied a defense motion to recognize CAPT LeBlanc and Capt Berry as detailed trial defense counsel. The record does not reflect that the petitioner has submitted a request that CAPT LeBlanc and/or Capt Berry be assigned to represent him as individual military counsel. See Rule for Courts-Martial 506, Manual for Courts-Martial, United States (2008 ed.). The case is currently stayed pending resolution of the petition for extraordinary relief.

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By my count, the Air Force Court has issued six published opinions this year.  Precisely zero have actually appeared in the Military Justice Reporter.  In fact, none of the six is even available on Westlaw — the electronic research service used in the Air Force.  So there’s controlling case law out there that Air Force practioners have no realistic means of discovering.

It appears that the last Air Force published opinion that has actually appeared in the Military Justice Reporter was issued on 3 June 201:  United States v. Thompson, 69 M.J. 516 (A.F. Ct. Crim. App. 2010), rev’d, 69 M.J. 456 (C.A.A.F. 2010) (summary disposition).

The headline alone suggests that United States v. Burke, Misc. Dkt. No. 2011-08, would not be your run-of-the-mill appellate case. 

Our prior coverage of this unusual appeal can be found here.  In summary:  1st Lt Patrick T. Burke was tried by a military judge sitting as a general court-martial, and was found not guilty only by reason of lack of mental responsibility.  The government thereupon filed an Article 62 notice of appeal, indicating that it had consulted with appellate government counsel and the convening authority’s SJA and stating, in pertinent part, “The Government intends to appeal the order or ruling of the Military Judge that terminated the proceedings.”  Precisely how the government planned to appeal an acquittal was not made clear; but as one of my colleagues here in Las Vegas (a former AF trial defense counsel) speculated, “Maybe the government thinks insanity acquittals should be best two out of three.”

Alas, we will never know.  Today, the government sent notice to the Air Force Court of Criminal Appeals that it would not, in fact, file an Article 62 appeal in Burke.

McClatchy’s Suits & Sentences blog has covereage, here,  of NMCCA’s recent decision in US v. Simmons.  We previously mentioned the decision here–though our post does not do justice to the amusing aspects of the case.  In a post simply titled, “Court case a reminder to Marines not to wear full uniforms during porn shoot,” Michael Doyle describes the decision as finding that “wearing simply part of the official garb during a porn shoot does not, by itself, amount to misuse.”

CAAF began its analysis in United States v. Fosler with an understatement: “Historically, the express allegation of the terminal element of Article 134 has not been viewed as necessary.” United States v. Fosler, 70 M.J. 225, 227 (C.A.A.F., 2011). Early publications did call for inclusion of a terminal element when charging an offense under the general article. See Captain P. Henry Ray, USA, Instructions for Courts-Martial and Judge Advocates, at 22 (1890). See also Colonel William Winthrop, USA, Military Law and Precedents, at 1022 (2d Ed., 1920). Over the following century this practice changed, until eventually omission of the terminal element received both Executive and Judicial sanction.

As we know, Fosler changed that.

The opinion was brazen, casting aside nearly 60 years of jurisprudence. See, e.g., United States v. Marker, 1 U.S.C.M.A. 393, (1952)). The majority finds this result compelled by its renewed interest in United States v. Schmuck, 489 U.S. 705 (1989), which adopted the elements test for lesser-included offenses under Fed. R. Crim. Proc. 31(c); yet it gives lip service to contemporaneous precedent that applied that rule to offenses under the UCMJ. See, e.g., United States v. Foster, 40 M.J. 140 (C.M.A.1994). This is in stark contract to the deliberateness of the Supreme Court in Schmuck. See Schmuck, 489 U.S. at 716 (“[the elements test] is consistent with past decisions of this Court which, though not specifically endorsing a particular test, employed the elements approach.”).

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The audio of yesterday’s argument in U.S. v. Dominique before the N-MCCA is now available.

NMCCA’s website lists an oral argument for 1400 next Sunday. 

UPDATE:  I’m advised that one of the counsel is a Reservist and the court is holding the argument at its courtroom on a Sunday to accommodate the Reservist’s schedule.  BZ, NMCCA!

Sunday, 18 September 2011

1400

United States v. Dominique

A military judge sitting as a general court-martial convicted the appellant, pursuant to  his pleas, of an orders violation, false official statement, conspiracy to commit larceny, and of wrongful appropriation.  The convening authority approved a sentence of 8 months confinement, reduction in rate to E-1, and a bad conduct discharge from the United States Marine Corps.

The specified issue before the Court is the following:

I.  WHETHER AN ACCUSED MAY BE CONVICTED OF AN “IMPLICIT” CONSPIRACY WHERE THERE IS NO EVIDENCE OF EITHER A WRITTEN OR ORAL MEETING OF THE MINDS, BUT RATHER WHERE APPELLANT’S PARTICIPATION IN THE CONSPIRACY IS LIMITED TO KNOWLEDGE THAT HIS “CO-CONSPIRATORS” ARE BREAKING THE LAW AND HIS OMISSION OF ACTION IN PREVENTING THEIR ILLEGAL ACTIVITIES.

On Monday, NMCCA heard oral argument on the defense’s fourth motion for enlargement of time in United States v. Parker, a capital case.  Audio of the oral argument is available here.

Audio of today’s NMCCA argument in Wuterich v. United States, NMCCA No. 200800183, is already available here.

[Insert familiar disclosure here.]

It appears that NMCCA’s last published opinion was issued on 28 October 2010 in the now-famous Fosler case.  United States v. Fosler, 69 M.J. 669 (N-M. Ct. Crim. App. 2010), petition granted, 69 M.J. 490 (C.A.A.F. 2011).

ACCA has posted an announcement on its website including the following:  “Effective 12 September 2011, the U.S. Army Court of Criminal Appeals will be moving to 9275 Gunston Road, Fort Belvoir, Virginia 22060.” Hhmmm, maybe I could combine a scouting mission to see the new courthouse’s exterior with a Potomac Nationals (Washington Nationals’ high A affiliate) game.  12 August is Ian Desmond bobblehead night.  Or maybe I could get the No Man to go with me on 4 September — Lacrosse Day at Pfitzner Stadium.

Audio of NMCCA’s latest very interesting oral arugment in United States v. Lee, No. NMCCA 20060543, is now available here.

AFCCA’s new courtroom has grandeur.  With a soaring ceiling, a forest’s worth of wood paneling, and a huge rendition of the court’s seal hanging behind the chief judge, the courtroom inspires awe, even if the effect was to dwarf the three judges sitting in the center of the courtroom, partially obscured by video monitors.. 

Still, AFCCA’s new courtroom has its quirks.

I was able to catch the second half of today’s inaugural argument in United States v. Boore.  Everything inside the courtroom seemed to function as designed, though there may be grounds to question some of those design decisions.  The acoustics were good when counsel were speaking.  They weren’t as good when the judges were speaking, but I suspect that’s because the judges weren’t as close to their microphones when they spoke.

One strange feature of the new courtroom is a Jumbotron composed of four separate video screens mounted on the courtroom’s right wall from the oral advocate’s perspective.  During the argument, the Jumbotron showed the counsel arguing the case — which would have been visible to the advocate in his peripheral vision.  I’m sure that isn’t necessary; no other court I’ve ever been in has had a Jumbotron.  I’m not sure it’s desirable.  I suspect the main reason for throwing the counsel’s giant image up on the Jumbotron was because it was there.

Some of the carpet — particularly by the entrance — already appeared worn even though today was the first time the courtroom was in use.  And while the quality of the carpet seemed tacky compared to the luxurious materials elsewhere in the courtroom, in the interest of fiscal sanity, I recommend keeping it.

My greatest qualm with the courtroom’s design is the amount of space between the counsel’s podium and the judges.  An oral argument should be a conversation, not a speech.  But the 15 feet of open space between the counsel and the center of the judges’ bench doesn’t inspire conversational tones.  I’ve previously complained about the distance between the podium and the appellate bench in NMCCA’s courtroom.  The distance in AFCCA’s new palace of appellate justice appears to be even greater.  (I’ll probably be in NMCCA’s courtroom on Friday; if so, I’ll check out the relative distance between podium and bench then.)  At both CAAF and the Supreme Court, by way of contrast, the podium seems just an arm’s reach from the bench.

Speaking of the NMCCA courtroom, one of its many problems is its lack of accessibility.  There’s no signage on the building.  If you were standing directly next to the Navy Yard’s Center of Appellate Excellence, you’d have no way to know that there was a court lurking inside.  And even if you somehow figured it out, you’d be left wondering how to get into the building.  When the building housed the Marine Corps Museum, the main entrance was on the west side, next to Leutze Park.  That still appears to be the main entrance.  But it’s inaccessible to  visitors.  Nothing tells the visitor that the actual entrance is the second of what look like two back doors on the building’s east side.  AFCCA’s courtroom, on the other hand, is well marked with signs, even though they read like they were written by someone for whom English is a second language.  (In the U.S., we say “Appellate Courtroom.”  “Courtroom Appellate,” as the signs say, reads like an overly literal translation of a sign written in French.)

But even with the signage and the well-designed entrance that (unlike NMCCA’s) architecturally communicates its function, on a normal day a visitor to AFCCA would be flummoxed as to how to enter the court.  The only exterior doors are locked with an electronic pad to control entry.  There’s no sign telling a visitor how to get in, no phone to call someone to open the door, and no list of phone numbers even if the visitor came equipped with a cell phone.  The entry is a sufficient distance from the court’s chambers that even vigorous pounding on the door would be unlikely to attract attention.  So, on a normal day, a visitor might be reduced to tiptoeing across AFCCA’s lawn to rap on a window and beg for someone to open the door.

But not today.  Today the front doors were  unlocked a  half hour before the argument and remained unlocked for the duration.  So for accessibility to see an oral argument, AFCCA’s courtroom gets a much higher grade than NMCCA’s.

It will be interesting to see whether, in time, the technology available inside AFCCA’s courtroom changes the way oral argument is presented.  Instead of seeing themselves on the courtroom’s Jumbotron, might counsel one day use it to depict a particularly salient piece of evidence from the case?  Will counsel deliver PowerPoint-enhanced arguments?  If so, would that be desirable?  Or are the Jumbotron and the monitors perched in front of each judge unwelcome departures from what should be, in its purest form, five lawyers reasoning with one another?  We’ll continue to think about these issues as AFCCA’s grand new courtroom comes into regular use.