CAAFlog » SCOTUS MilJus Cases

Today’s SCOTUS order list includes the following:



In United States v. Sterling, 75 M.J. 407 (C.A.A.F. Aug. 10, 2016) (CAAFlog case page), part of our #8 Military Justice Story of 2016, CAAF found that disobedience of an order could qualify for protection under the Religious Freedom Restoration Act (RFRA), however the majority concluded that the appellant (who represented herself at trial) failed to establish that the order she violated substantially burdened her exercise of religion.

Thanks to reader John Marshall for the heads up.

Today the Supreme Court called for a response to the cert. petition in Dalmazzi v. United States, No. 16-961 (CAAFlog case page). Prior to this action the case was scheduled for conference on March 3. The response is due on March 24.

In a petition filed today and available here, Second Lieutenant Dalmazzi seeks Supreme Court review of CAAF’s decision in United States v. Dalmazzi, __ M.J. __ (C.A.A.F. Dec. 15, 2016) (CAAFlog case page). The petition begins:

Since shortly after the Civil War, federal law has required express authorization from Congress before active-duty military officers may hold a “civil office,” including positions that require “an appointment by the President by and with the advice and consent of the Senate.” 10 U.S.C. § 973(b)(2)(A)(ii).

After President Obama nominated and the Senate confirmed Colonel Martin T. Mitchell as a judge of the Article I U.S. Court of Military Commission Review (CMCR), Judge Mitchell continued to serve on the U.S. Air Force Court of Criminal Appeals (AFCCA). The U.S. Court of Appeals for the Armed Forces (CAAF) rejected as moot Petitioner’s challenge to Judge Mitchell’s continued service on the AFCCA, because his CMCR commission had not been signed until after the AFCCA decided her case on the merits—even though she moved for reconsideration after the commission was signed.

The Questions Presented are:

1. Whether the Court of Appeals erred in holding that Petitioner’s claims were moot.

2. Whether Judge Mitchell’s service on the CMCR disqualified him from continuing to serve on the AFCCA under 10 U.S.C. § 973(b)(2)(A)(ii).

3. Whether Judge Mitchell’s simultaneous service on both the CMCR and the AFCCA violated the Appointments Clause.

Beyond raising the underling Appointments Clause issue (that is still before CAAF with United States v. Ortiz, No. 16-0671/AF (CAAFlog case page) and – by my count – 84 trailer cases as of yesterday, including one in which I represent the appellant in my civilian capacity), the petition also implicates the jurisdiction-limiting provisions of 28 U.S.C. § 1259 because CAAF’s per curiam opinion in this case vacated the grant of review.

Petition available here.

(CAAFlog case page)

Alas, the Golden CAAF II remains without a new home as the Supreme Court denied what was the best prospect of a certiorari grant in a Mil Jus case in some time.  Yesterday’s orders list (here) denied certiorari in United States v. Akbar, No. 15-1257.  Going to be a long cold winter without Mil Jus at SCOTUS again.  At this rate, the Golden CAAF II will be a full grown steer (or would it be a cow, not sure we’ve determined gender) by the time it finds a home.

The Government’s response opposing the petition for certiorari in Akbar v. United States, No. 15-1257 (CAAFlog case page) is available here.

Thanks to our friend for sending the brief.

Here (subscription req’d) is a link to Marcia Coyle’s piece in the National Law Journal Supreme Court Brief discussing the Akbar cert. petition and amicus brief from NIMJ, featuring quotes from NIMJ’s Prof. Stephen Vladeck.  From the portion visible outside the firewall:

In the past eight years, the Obama administration has been no stranger to charges it has violated separation of powers or exceeded its statutory authority. But a new charge comes from an unusual source—the military justice system—in a U.S. Supreme Court petition that has the potential to dismantle the military’s capital punishment scheme.

Our prior coverage of the cert. petition is here and here.  H/t JB/SV

The Supreme Court received two additional briefs in support of the petition for certiorari in Akbar v. United States, No. 15-1257 (Akbar CAAFlog case page).  The first from the National Association of Criminal Defense Lawyers (NACDL), here, supports the defense’s substantive argument in their petition asking for the SCOTUS to reverse its prior decision in Loving v. United States, 517 U.S. 748 (1996), which found the military’s capital sentencing scheme to be constitutional.  See prior coverage here.  The second from the Air Force and Navy-Marine Corps appellate defense shops, here, addresses the related issue, which is not directly addressed in the petition for certiorari, that trial defense counsel for the accused was not qualified, in accordance with prevailing standards, to handle a capital case.

Love the argument in the Akbar v. United States, No. 15-1257, Petition for Certiorari (here).

Ring v. Arizona, 536 U.S. 584 (2002) held that aggravating factors in capital cases constitute elements of the crime that must be tried to a jury. Does it violate the Constitutional separation-of-powers or exceed statutory authority for the President, rather than Congress, to prescribe the aggravating-factor elements that permit a court-martial to impose a death sentence on a member of the armed forces.

Scintillating reading ladies and gentlemen, scintillating.

The Supreme Court denied certiorari in Katso v. United States, No. 14-5008 (CAAFlog case page).

Case Links:
AFCCA opinion
Blog post: A significant confrontation clause decision from the AFCCA
Blog post: CAAF grants USACIL additional time to file an amicus brief in Katso
Appellant’s (Government) brief
Appellee’s brief
Amicus brief (Defense Forensic Science Center / U.S. Army Criminal Investigation)
Blog post: Argument preview
Oral argument audio
• CAAF opinion
Blog post: Opinion analysis
Petition for certiorari
• Government’s response in opposition to petition for certiorari
Petitioner’s reply
• Blog post: Certiorari denied

SCOTUS denied certiorari in McMurrin v. United States after last week’s conference. The court’s docket page for the case is here.

For those interested in the case, I discussed the cert. petition (and reviewed the case history) in this post. Phil discussed the NIMJ amicus brief in this post.

Here is a link to the order list, dated today, from the Supreme Court’s conference this past Monday. There are no orders in any of the six military justice cases considered in the conference, and so all were presumably denied certiorari. The six cases are:

Zach has previously written on McMurrin v. United States and the merits of the petition.

For the appellate literati there is an interesting issue lurking in McMurrin which is not clearly addressed in his petition, but which may be addressed by the Solicitor General – that is the question of the court’s jurisdiction to entertain the petition.

NIMJ has the permission of the parties to submit an amicus petition.  A copy of the amicus brief is here.

You will see that we (disclosure, I am a director of NIMJ), raise the jurisdiction question, and seek to answer it.

As you will know, servicemembers have more limited access to the Supreme Court than a civilian appellant and “terrorists” housed at Guantanamo Bay, Cuba.  The inequality has been discussed off and on, and there have been attempts within Congress to give equal access.  See e.g. here, here, here, here, and here for some of the discussion.

CAAF upended lesser-included offenses jurisprudence in the military justice system with its opinions in United States v. Medina, 66 M.J. 21 (C.A.A.F. 2008) (discussed here) (finding that in Article 134, clause 1 & 2 are not LIOs of clause 3), United States v. Miller, 67 M.J. 385 (C.A.A.F. 2009) (discussed here) (finding that a simple neglect under Article 134 is not a LIO of every enumerated article), and United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010) (discussed here) (returning to the elements test for determining LIOs).

Applying those cases, CAAF determined that negligent homicide (in violation of Article 134) is not a lesser-included offense of either murder (in violation of Article 118) or involuntary manslaughter (in violation of Article 119) in a pair of cases decided on the same day: United States v. Girouard, 70 M.J. 5, 9 (C.A.A.F. 2011) (link to slip op.), and United States v. McMurrin, 70 M.J. 15, 18 (C.A.A.F. 2011) (link to slip op.). I discussed both cases in a 2011 post titled Pushing the LIO Easy Button (and noted a humorous citation in a post titled A Mobius Strip of Citation).

McMurrin involved a Sailor who, in 2008, went on a cocaine and heroin binge with a fellow Sailor (update/clarification: McMurrin used only cocaine while the other Sailor combined the two drugs). The other Sailor died at the end of the night after McMurrin left him in the bushes to “sleep it off.” Among other charges, McMurrin was charged with involuntary manslaughter in violation of Article 119, but he was convicted of negligent homicide in violation of Article 134 as a lesser-included offense. Involuntary manslaughter is a homicide caused by culpable negligence, while negligent homicide requires only simple negligence. However, as an enumerated offense under Article 134, negligent homicide must also be prejudicial to good order and discipline or of a nature to bring discredit upon the armed forces; an additional element not found in the Article 119 charge. So, applying Miller and Jones, the NMCCA set aside the finding of guilty of involuntary manslaughter in a published, en banc opinion. United States v. McMurrin, 69 M.J. 591 (N-M.Ct.Crim.App. 2010) (link to slip op.). The Judge Advocate of the Navy certified the case to CAAF, where the CCA was affirmed (link to CAAF op.).

Because McMurrin’s homicide conviction was reversed, the CCA ordered a sentence rehearing. But when the case was returned to the convening authority, charges were added, including a charge of negligent homicide under Article 134. McMurrin was then tried and convicted of the new negligent homicide charge, and sentenced for both the new and old convictions. On appeal he asserted that the convening authority’s action adding charges exceeded the scope of the mandate on remand, but the NMCCA rejected that argument in an unpublished opinion. United States v. McMurrin, No. 200900475 (N-M.Ct.Crim.App. Jun 27, 2013) (discussed here) (link to slip op.). CAAF then denied review.

On August 29 McMurrin filed a cert petition with the Supreme Court. The petition is available here.

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The cert petition in Hornback (CAAFlog case page) is available here. The question presented is:

When a prosecutor commits persistent and severe misconduct, are a judge’s curative instructions insufficient to neutralize the misconduct (as the Eleventh Circuit has held) or do the instructions remain an effective antidote (as the U.S. Court of Appeals for the Armed Forces has held)?

Page 21 of the brief takes something of a shot at the NMCCA:

On appeal, the U.S. Navy-Marine Corps Court of Criminal Appeals (N-M.C.C.A.) affirmed. The opinion is reproduced at App. 31a. Adopting a laissez-faire approach to prosecutorial misconduct, that court assumed without deciding that it occurred. It then tested for prejudice and found no harm.

Of the Eleventh Circuit, pages 23-24 of the brief explain:

Nearly sixty years after Berger, the U.S. Court of Appeals for the Eleventh Circuit addressed a similar, persistent form of prosecutorial misconduct. See generally United States v. Crutchfield, 26 F.3d 1098, 1100 (11th Cir. 1994) (observing a record “replete with examples of unquestionable prosecutorial misconduct.”). The prosecutor there, as in Petitioner’s case, engaged in “[s]everal lines of questioning” that elicited irrelevant and improper character evidence. Id. Also there, like here, “the record reflect[ed] numerous instances in which the prosecutor simply ignored the court’s rulings on relevancy and improper character evidence objections.” Id. at 1102. Consistent with Berger’s special concern for persistent misconduct, the Eleventh Circuit opined that “[w]hen improper inquiries and innuendos permeate a trial to such a degree as occurred in this case, we do not believe that instructions from the bench are sufficient to offset the prejudicial effect suffered by the accused.” Crutchfield, 26 F.3d at 1103 (emphasis added). Concluding that “a jury cannot always be trusted to follow instructions to disregard improper statements[,]” id. (citing United States v. McLain, 823 F.2d 1457, 1462 n.8 (11th Cir. 1987)), the Eleventh Circuit then reversed and remanded for a new trial.

Of CAAF’s decision, page 26 of the brief outlines a moral hazard:

[T]he [CAAF] majority ultimately returns to the curative instructions, underscoring their dispositive nature. Id. at 161. (“[T]he fact that the panel acquitted Appellant of other, weaker drug charges indicates that it took the military judge’s instructions to disregard impermissible character evidence seriously.”). *FN 8.

*FN 8: In so finding, the lower court sends an unfortunate message to prosecutors; namely, these improper tactics are worth employing in a weak case. By eliciting improper evidence and making improper argument, prosecutors can turn a total acquittal into a partial one, understanding that result weighs in favor of affirmance on appeal. This danger is real, as the prosecutor here sought to admit improper evidence, arguing to the judge that it was found “to be harmless beyond a reasonable doubt after the appellate court looked at that.” App., infra, 41a. Putting a stop to this unfortunate message supplies an additional reason for this Court to grant this important petition.

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