We’ve followed the case of former Navy LT Roger House, who — along with two other officers — was convicted at a court-martial based in part on fraudulent DNA analysis by former USACIL analyst Phillip Mills.  Among other things, the case is a justification for judicial review of sub-jurisdictional cases, since an appeal of his conviction would have likely resulted in its reversal while his Article 69 appeal resulted in an unjust affirmance of offenses about which Mills testified.  Only an extraordinary — and legally questionable — decision by the Judge Advocate General of the Navy granting a petition for new trial finally vindicated LT House seven years after his unjust conviction.  But for the dogged work of his tenacious civilian counsel — John B. Wells — that vindication might never have come. 

On Friday, the Court of Federal Claims released this published opinion in LT House’s case denying his claim for back pay at the rate to which he would have been promoted (O-4) but for the conviction.  The opinion was written by Judge Francis M. Allegra, a Clinton appointee.  Judge Allegra concluded that LT House’s retirement following his court-martial conviction — upon receiving advice that his career was over as a result of the conviction — was a voluntary termination of his military status, thus precluding relief under the Military Pay Act. 

The decisional issue in the case was “whether Mr. Mills’ wrongful conduct – and the apparently wrongful conviction triggered by his false (or at least inaccurate) testimony – obliges this court to treat Lieutenant House’s separation as involuntary.”  No, held the court.  Applying the Court of Claims’ landmark decision in Christie v. United States, , 518 F.2d 584, 587 (Ct. Cl. 1975), Judge Allegra observed that “a plaintiff seeking to show that his resignation was the result of duress or coercion must show that: (i) he involuntarily accepted the terms of the government; (ii) circumstances permitted no other alternative; and (iii) said circumstances were the result of the government’s coercive acts.”  Judge Allegra rejected some other cases’ suggestion that that three-part test is inapplicable where the government engaged in misconduct.  In his view, to prevail, a plaintiff must demonstrate that the government’s “wrongful conduct left him with no alternative other than to retire or resign.”  He concluded that LT House had viable options other than to retire, thus foreclosing relief:

Undoubtedly, Lieutenant House’s wrongful conviction left him with unpleasant options and perhaps justified his conclusion that the best route was for him to retire. But, the question here is not whether resignation was the best option, but whether it was the only option. And the record requires the court to answer the latter question in the negative. Indeed, despite the injustice that Lieutenant House suffered, it cannot be overlooked that, at the time he retired, he no longer faced the possibility of imprisonment or expulsion from the service, and had been recommended for promotion. While, for reasons discussed in greater detail below, that promotion was delayed, it remains that, at the time of his retirement, the promotion was still under review and a distinct possibility. Lieutenant House, moreover, hardly went down without a fight – after his retirement, he pursued every avenue for appealing his conviction, culminating in the Supreme Court denying his petition for certiorari in 2006. Lieutenant House could have pursued these appeals while still an active member of the Navy, perhaps forestalling any discharge until all his convictions were overturned. For reasons unexplained, he chose not to do this – a choice that is understandable under the circumstances, but a choice, nevertheless. Accordingly, the court finds that the BCNR properly found that Lieutenant House’s resignation was voluntary, thereby precluding him from being reinstated as of the date of his resignation and receiving back pay.

Judge Allegra added:  “Since plaintiff has not proven he is entitled to reinstatement and back pay, a fortiori, his claim for promotion to Lieutenant Commander also fails, at least to the extent that it is for the period following the effective date of his resignation.”

Judge Allegra concluded his opinion with this philosophical observation: 

Undoubtedly, the result here will leave plaintiff dissatisfied. His reputation has largely been restored. The emoluments associated therewith have not. Some might view this seeming incongruency as a blunt metaphor for the limitations of the law; others might see the same results as reflecting the court’s inability to relieve a party of a self-created hardship. Either way, this court is not free to stray from the decisional path here, even to accommodate the perceived equities of a given case, particularly where that path is so well marked by the stanchions of sovereign immunity and the saddle bars of precedent.

Here is a link to the government’s notice of appeal of the Magistrate’s decision in US v Espinosa.  As we reported, here, Magistrate Judge Thomas Rawles Jones, Jr. from the EDVA dismissed a series of federal DUI cases after the accuseds in the cases were previously taken to NJP and provided deficient NJP advice, in Magistrate Jones’ opinion, regarding the election to accept NJP. 

Our astute readers will know that the Espinosa case has now been twice dumped by Magistrate Jones, see prior opinion here.  Judge Jones apparently gave the government a second chance and set aside his Dec. 2010 decision after the government asked for reconsideration and put at issue the advice provided the accuseds, see government reconsideration motion here.   Here is a link to the defense motion to dismiss after reconsideration.  It will be interesting to see what the District Judge in the case does with the decision.   

Though CAAFlog contributor Brian Mizer is counsel for Espinosa, I got the notice from our fearless leader.  So we’d appreciate any inside info others could provide on Judge Jones and who will be assigned the case.

In a decision by US Magistrate Judge Thomas Jones out of the EDVA, DON has finally been taken to task for its policy of not providing true legal advice to sailors or Marines facing NJP.  See United States v. Espinosa et al., No. 1:10mj453 et al., slip op. (E.D.Va. Apr. 25, 2011) (here).  In the 17-page decision Magistrate Jones calls the legal advice provided to the sailors and Marines facing NJP who were subsequently prosecuted in Magistrate Court, “seriously inadequate to permit them to make voluntary, knowing, and intelligent waivers of their right to trial by court-martial where that waiver would result in civilian prosecution.”  For those unfamiliar with the DON policy, Magistrate Jones summarizes it:

[M]ilitary lawyers provided to accused servicemembers, in adherence to JAG Manual procedures, make every effort to avoid the creation of an attorney-client relationship. Their advice is limited to the technical aspects of a court-martial and non-judicial punishment. They do not discuss the particular facts of a servicemember’s case. The attorneys discuss the maximum penalties available at a court-martial and through non-judicial punishment, but do not discuss civilian prosecution beyond the double jeopardy implications of opting for a court-martial or the need for the servicemember to appear at his civilian court date. The military attorneys do not discuss the penalties available in civilian court; in fact, both Captain Doyle Feingold and Major Lee testified that they do not even know what the penalties available in civilian court are. Moreover, they do not discuss what further administrative action the military might take based upon the civilian case and/or its disposition.

Magistrate Jones dismissed the charges against the 5 Marines facing drunk driving charges, stating, “[t]heir waivers of trial by court-martial are accordingly invalid, and their prosecutions cannot stand, either.”  

I have always thought the JAGMAN policy of avoiding an A-C relationship with NJP accused was fraught with peril.  Now we have the confluence of the Denedo/Padilla v. Kentucky precedent, which while not mentioned seems to be the background for the decision, and a Navy policy that was always perilous.  I am guessing the government will appeal this ruling . . .  to a District Court judge?  Does anyone know how judges are assigned in such a case?

Here is a link to the issues in United States v. Davenport, which will be orally argued at the Navy-Marine Corps Court of Criminal Appeals on Tuesday, 15 March 2011, at 1000.  Fascinating Denedo collateral consequences claim that, like Denedo, is before the courts on coram nobis review.  Here is a link to the prior summary disposition in the case–the issues show how it is relevant.  The issues to be argued before the Court are:

I. WHETHER THE PETIONER MEETS THE THRESHOLD REQUIREMENTS FOR CORAM NOBIS REVIEW BASED UPON HIS CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL.

II. WHETHER THE TRIAL DEFENSE COUNSEL WAS INEFFECTIVE BY ADVISING PETITIONER THAT (1) HE WOULD HAVE TO REGISTER AS A SEX OFFENDER FOR 10 YEARS AND NOT AS A “SEXUAL PREDATOR” FOR LIFE, AND (2) HIS SPECIAL COURT-MARTIAL CONVICTION WOULD BE CLASSIFIED A MISDEMEANOR IN CIVILIAN JURISDICTIONS.

The Fayetteville Observer reports herethat MSgt Timothy Hennis’ attorney received a 2 month extension to file a brief at the 4th Cir. to overturn the denial of Hennis’ jurisdictional challenge to his court-martial in the US District Court for the Eastern District of North Carolina.  As our prior coverage, here, notes, his brief was due Aug. 16, but apparently his attorney’s computer crashed, presumably losing his work product.

LA Times reports here that the Navy Clemency and Parole Board will soon decide the case of Sgt. Lawrence Hutchins–a hearing is scheduled in D.C. some time soon.  Hutchins is serving an 11 year sentence for his role in the killing of an Iraqi man in Hamandiya to send a message to insurgents.  The man they killed was, according to reports and trial testimony, not an insurgent, rather he was selected after Hutchins squad could not find the suspected Iraqi insurgent and bomb maker they were targeting. 

NCPB last year recommended clemency for Hutchins, but ASN(M&RA) (and former Medal of Honor winner awardee) Barney Barnum denied Hutchins request.  This interesting tid-bit for the LA Times story:

Bing West, former assistant secretary of Defense and author of three books about Marines in Iraq, has submitted a letter on Hutchins’ behalf. To keep Hutchins in prison while the others are free is unfair and detrimental to the morale of Marines in the field, West wrote.

“The [Marine] Corps deviated from its core principle of equality of justice,” he wrote. “It pinned all the blame on the squad leader at the lowest level — Hutchins — and let the platoon, company and battalion commanders walk.”

H/t B-K

The United States Court of Appeals for the District of Columbia Circuit yesterday released an opinion rejecting a Due Process challenge to 4-member courts-martial.  Sanford v. United States, No. 08-5402 (D.C. Cir. Nov. 13, 2009). The opinion is available here.  Judge Rogers wrote for a unanimous panel. 

The lion’s share of the opinion is devoted to discussing the standard of review for collateral challenges to court-martial convictions where the servicemember is no longer in custody.  The case law governing this situation — as well as the case law governing the standard where the servicemember remains in custody — is muddled.  But the D.C. Circuit ultimately concluded that even applying the least deferential standard, former Marine Corps Sergeant Sanford’s claim would fail.  (That reminds me — in the opinion, the D.C. Circuit chose to refer to the Navy-Marine Corps Court of Criminal Appeals with the shorthand “Marine Corps Court.)

The court went on to reiterate Supreme Court precedent that the Sixth Amendment doesn’t apply to courts-martial and rejected a direct application of Ballew v. Georgia, 435 U.S. 223 (1978), to the military justice system.  The court applied the Weiss due process standard instead.  See Weiss v. United States, 510 U.S. 163 (1994).  The court held that the challenge to 4-member special courts-martial failed the Weiss standard that the factors supporting the challenge must be “so extraordinarily weighty as to overcome the balance struck by Congress.”  Id. at 177-78.

Our very own Kabul Klipper has written an article presenting a history-based challenge to allowing SPCMs with fewer than five members to impose more than six months of confinement.  Marcus N. Fulton, Never Have So Many Been Punished So Much by So Few: Examining the Constitutionality of the New Special Court-Martial, Army Law., June 2003, at 28 (available here).  The D.C. Circuit alluded to the historical analysis and observed that ”[h]istory is ‘a factor that must be weighed’ in the due process analysis.’  Weiss, 510 U.S. at 179.”  But, the court then concluded, “Sanford acknowledges that the absence of historical precedent is not enough for him to succeed.”

Former Sergeant Sanford is repersented by the same team of Gene Fidell and Matt Freedus who prevailed at the Supreme Court in Denedo v. United States.  It will be interesting to see if they attempt to repeat their feat by seeking cert.

Judge Rogers issued this order today extending Ronald Gray’s habeas counsel’s deadline for filing their traverse until 30 September 2009. Gray v. Gray, No. 08-3289-RDR (D. Kan. June 18, 2009) (order). Judge Rogers explained: “Under circumstances which include novel habeas challenges to the imposition of a death sentence in a military proceeding, and the court’s recent appointment of attorneys providing substantive legal assistance to petitioner, the court finds the 120 day extension granted herein does not constitute unwarranted delay in the court’s resolution of this capital habeas action.” Id., slip op. at 1-2.

On Thursday, Senior Judge Rogers issued four orders in the federal habeas corpus case of military death row inmate Ronald Gray. Three of the orders granted motions for counsel from the highly regarded Capital Habeas Corpus Unit (CHU) of the Federal Public Community Defender, Philadelphia, Pennsylvania, to appear pro hac vice. The fourth order granted in part those counsel’s request for an extension in the deadline for filing their traverse to accommodate a mitigation investigation. Gray’s counsel had sought a 120-day extension. Judge Rogers found “it appropriate under the circumstances to grant a preliminary extension of 60 days at this time. Once the period for filing a response to petitioner’s motion has expired, the court will renew its consideration of petitioner’s request for an additional sixty days to file a traverse.” Gray v. Gray, No. 08-3289-RDR (D. Kan. May 21, 2009) (order).

Ronald Gray’s counsel today asked for a 120-day extension in their deadline to file the traverse to the United States’ response to his habeas petition. The motion, which is available here, is based largely on the defense’s need for time to conduct a mitigation investigation, which apparently none of Gray’s counsel ever received funding to perform. The motion is supported by an affidavit from Russell Stetler — one of the nation’s premier experts on capital mitigation investigations — describing the investigation’s necessity.

As we noted on Tuesday, here, the US Government has decided not to proceed with further appellate proceedings challenging the double jeopardy ruling of US District Judge Benjamin Settles in Watada v. Head, No. C07-5549BHS (W.D. Wash. Oct. 21, 2008). Some reports have said that Watada will not be retried, but without citing any evidence other than the withdraw of the appeal.

If you will recall, the trial judge ruled that the military could proceed to retry Lieutenant Watada on two conduct unbecoming charges, see order here. The court wrote that the government could re-try Watada on two conduct unbecoming charges that were dismissed “without prejudice to ripen into prejudice upon completion of trial proceedings.” Since the plea proceedings were never completed, the Court reasoned, there is no double jeopardy issue. See our prior report here.

Yesterday, according to the Honolulu Advertiser, here, a Fort Lewis spokesman said that leadership at Fort Lewis “is considering a full range of judicial and administrative options that are available, and those range from court-martial on those two remaining specifications, to nonjudicial punishment, to administrative separation from the Army.”

If anyone has any information indicating that the government won’t or will proceed on those charges, please drop us a note at noman@caaflog.com.

[UPDATE: Just after posting I received an alert that quotes 1st Lt Watada's lawyers as saying the Army won't pursue additional charges, story here. If anyone can confirm that please let us know.]