CAAFlog » September 2012 Term

Our #4 military justice story of the year involves five Marines: an accused, a military judge, two prosecutors, and an officer-in-charge.

The accused, Corporal Salyer, was tried in November, 2011, for wrongful possession and distribution of child pornography. At the beginning of the trial the military judge, Lieutenant Colonel Mori, made an odd ruling about the definition of child pornography. He determined that because of the way the case was charged, the definition of child pornography would include an image of a person under the age of 16 but not of a person under the age of 18. The trial counsel, Captain Harley Maya, argued against this interpretation, but she was overruled. Captain Maya then gave an opening statement to the members in which she referred to an item that Lieutenant Colonel Mori had excluded from evidence.

Lieutenant Colonel Mori threatened to declare a mistrial if the Government couldn’t find another way to admit the excluded item, and Captain Maya went for help. She met with Captain Jesse Schweig, the “military justice officer” (a supervisory position). Here’s CAAF’s description of what happened next:

According to Capt Schweig, Capt Maya told him of rumors that “Lieutenant Colonel Mori may have had a young wife.” This prompted Capt Schweig to access LtCol Mori’s official personnel record. . . . having retrieved the information from LtCol Mori’s personnel record, Capt Schweig went to see LtCol Mannle, Officer-in-Charge (OIC) of the base Legal Services Center. They discussed the military judge’s decision to use age sixteen vice age eighteen to define a minor for purposes of the charged child pornography offenses.

United States v. Salyer, 72 M.J. 415, 420 (C.A.A.F. 2013) (link to slip op.) (CAAFlog case page). The OIC then called Lieutenant Colonel Mori’s judicial supervisor to “let him know that a significant event was about to happen,” while Captain Maya conducted a voir dire of the judge during which “she asked the military judge how old his wife was when they married.” Salyer, 72 M.J. at 421. Lieutenant Colonel Mori answered that his wife was 17 when they married. But Captain Maya already knew this. She then offered material Captain Schweig obtained from the judge’s personnel record as an exhibit for the trial record.

The next day, Lieutenant Colonel Mori recused himself from the case with a written ruling that cited “LtCol Mannle’s phone call to [his judicial superior] and the trial counsel’s reference to his wife’s age at the time of their marriage.” Salyer, 72 M.J. at 421. A new judge was assigned, and Corporal Salyer was convicted of the possession offense and sentenced to confinement for two years, total forfeitures, reduction to E-1, and a bad-conduct discharge.

We learned about the case a year later, when the Navy-Marine Corps Court of Criminal Appeals (NMCCA) issued an opinion affirming the findings and sentence. The NMCCA was unfazed by a prosecutor rooting around in a military judge’s personnel record, and the court asserted an “innocent purpose behind the call” to the judge’s supervisor. United States v. Salyer, No. 201200145, slip op. at 9 (N-M.Ct.Crim.App. Oct. 23, 2012) (link to slip op.).

But CAAF felt differently, and on August 2, 2013, it reversed Corporal Salyer’s conviction and dismissed the case with prejudice. In a 34 page opinion authored by Chief Judge Baker, a majority of the court concluded that, “the unprofessional actions of the Government improperly succeeded in getting the military judge to recuse himself from Appellant’s court-martial.” Salyer, 72 M.J. at 428.

When a prosecutor facing a mistrial suggests that the judge’s personal life might be a reason to disqualify him from the case, and then a supervisory prosecutor digs through the judge’s personnel record looking for material to use for that purpose, and then the officer-in-charge, also an attorney, participates in the effort to remove the judge, causing the judge to recuse himself, and the accused is sentenced to two years, but 21 months later an appellate court throws out the case because of the actions of the prosecutors and the officer-in-charge, that might be enough to qualify for a spot on our top ten list.

But that isn’t the end of the story of this case.

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This week at SCOTUS: The petition in Brown was denied on December 13. Also on the 13th, the extended deadline for the United States to file a cert petition in Hutchins (CAAFlog case page) passed with no petition. The remaining two petitions are scheduled for conference on January 10. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking two cases:

This week at CAAF: The next scheduled oral argument at CAAF is on January 13, 2014.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on January 9, 2014.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments. However, I’ve been informed that the oral argument in the en banc reconsideration of the capital case of United States v. Witt, No. 36785 (discussed in this post), has been rescheduled for late January.

This week at the CGCCA: The Coast Guard Trial Docket shows one scheduled oral argument at the Coast Guard CCA, on January 9, 2014.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

Last term, in United States v. Bennitt, No. 12-0616/AR, 72 M.J. 266 (C.A.A.F. 2013) (opinion) (CAAFlog case page), CAAF reversed Private Bennitt’s conviction of involuntary manslaughter for his distribution of prescription opioid painkillers to his 16 year-old girlfriend, who overdosed and died while in the appellant’s barracks room in 2009. The appellant was tried on both theories of involuntary manslaughter: by culpable negligence (Art. 119(b)(1)) and involving an offense directly affecting the person (Art. 119(b)(2)) (by aiding and abetting his girlfriend’s wrongful use of drugs). He was acquitted of the culpable negligence theory and convicted of the directly affecting the person theory, but CAAF determined that the “appellant’s conduct does not constitute physical assistance such that it is an offense directly affecting the person.” Slip op. at 15-16.

The appellant was also convicted in accordance with his pleas of guilty, by a general court-martial composed of a military judge alone, of four specifications each of wrongful use and wrongful distribution of a controlled substance in violation of Article 112a, UCMJ. For these eight drug convictions, plus the manslaughter conviction, the appellant was sentenced to confinement for 70 months, total forfeitures, reduction to E-1, and a dishonorable discharge.

After CAAF reversed the manslaughter conviction, it remanded the case to the Army CCA for either reconsideration of the sentence or remand to the convening authority for a sentencing rehearing. What should happen next is the issue CAAF is considering this term in United States v. Winckelmann, No. 11-0280/AR (Winckelmann IV) (CAAFlog case page). But four months ago, in my opinion analysis of CAAF’s decision in Bennitt, I wrote:

This Appellant is still convicted of the four specifications of use and four specifications of distribution of controlled substances, but he is no longer convicted of causing the death of [LK]. CAAF remands the case for either a sentence reassessment or a sentence rehearing which will undoubtedly result in a significantly reduced term of confinement. The Appellant was sentenced in January 2010 to 70 months of confinement (less a year of confinement credit), meaning he is likely now near or past his release date (considering credits earned while in confinement), so besides receiving back pay for the time he should not have been confined, the Appellant’s victory is limited.

Limited indeed, it turns out. In a summary disposition, the Army CCA affirms the full sentence as adjudged and approved by the convening authority:

Although appellant now stands acquitted of involuntary manslaughter, pursuant to Rule for Courts-Martial 1001(b)(4), LK’s death was directly related to appellant’s conviction for oxymorphone distribution. Therefore, the evidence underlying the dismissed charge was proper aggravation evidence and it would have therefore been proper for the government to offer the following evidence: that appellant crushed an oxymorphone pill for L K and her friend TY; divided the contents for LK and TY who both then ingested the drug; and that pursuant to a toxicologist’s trial testimony, although a combination of drugs could account for LK’s death, “within a reasonable degree of scientific certainty” the oxymorphone was the “much bigger player” in LK’s death. . . .

Among other matters, we took into account appellant’s length of service and his service record. We also considered the serious nature of appellant’s remaining convictions. These offenses, including multiple drug distribution offenses that involved fellow soldiers and were committed on an Army installation, carry a maximum punishment that included seventy-two years of confinement. In addition, the dismissed offense merely reduced the maximum period of confinement from eighty-two years of confinement to seventy-two years. Based on the foregoing, we are convinced that appellant would have received a sentence on the remaining convictions of no less than that approved by the convening authority.

United States v. Bennitt, No. 20100172, slip op. at 2 (A.Ct.Crim.App. Sep. 25, 2013) (unpub. per curiam op.) (emphasis added) (slip op. here).

CAAF will tell us how the CCA can possibly be convinced of this fact in its decision this term in Winckelmann. But notably, the CCA doesn’t seem to give the appellant any credit for the fact that of his remaining eight convictions, he pleaded guilty to all of them without the benefit of a pretrial agreement.

CAAF decided United States v. Salyer, No. 13-0186/MC, 72 M.J. 415 (CAAFlog case page) (link to slip op.), on August 2, 2013, finding that the appearance of unlawful command influence was raised when the Government counsel accessed the personnel record of the trial judge – Lieutenant Colonel (LtCol) Mori – in order to obtain information that Government counsel used to challenge LtCol Mori as presiding judge for the trial, and when supervisory Government counsel engaged in an ex parte communication with LtCol Mori’s judicial superior and expressed displeasure about LtCol Mori’s rulings in the case, both actions leading to LtCol Mori’s recusal and replacement as the trial judge. CAAF also finds that the Government failed to cure this appearance of unlawful influence with proof that a disinterested person knowing all the facts would believe that Appellant received a fair trial.

Appellant – who was a Corporal in the Marines – was convicted contrary to his pleas in 2011, by a general court-martial composed of officer and enlisted members, of wrongful possession of child pornography in violation of Article 134, and sentenced to confinement for two years, forfeiture of all pay and allowances, reduction to pay grade E-1, and a bad-conduct discharge. CAAF reverses the conviction and dismisses the case with prejudice (meaning that Appellant will be restored in rank, will receive back pay and promotion consideration, and may not be re-tried).

Chief Judge Baker writes for the court, joined by Judges Erdmann and Stucky. Judge Ryan dissents, joined by Senior Judge Cox.

The Chief Judge’s opinion is a massive 35 pages, but it treads rather softly around some key facts. Put simply, Government counsel made a slew of tactically and strategically nonsensical decisions in the prosecution of this case, creating a desperate situation with LtCol Mori threatening a mistrial after opening statements. The charges – which alleged distribution of child pornography and possession of a laptop computer containing child pornography – were poorly drafted (see slip op. at 3 N.2) and then stripped of key language before trial (see slip op. at 4). The laptop computer at the heart of the case either didn’t exist or was badly mishandled by the Government. See slip op. at 4. Government counsel fixated on meaningless issues, particularly whether the definition of “child pornography” in this case required that the image depict someone under the age of 18 or under the age of 16 (when the images clearly depicted individuals under the age of 16, and some under the age of 10). See slip op. at 25. And the animosity of Government counsel towards LtCol Mori is palpable, even in the mere snippets of the record reprinted in the opinion; they obviously held a grudge from LtCol Mori’s ruling disqualifying them from a different case (a remedy usually reserved for significant instances of prosecutorial misconduct). See slip op. at 14.

But Chief Judge Baker extends Government counsel a seemingly-undeserved degree of professional courtesy, merely disagreeing with the CCA’s conclusion that there was a good faith basis to access LtCol Mori’s personnel record and then question him about his personal life. Slip op. at 20. That questioning led to LtCol Mori recusing himself from further participating in the case. The subject personal fact was that LtCol Mori’s wife was 17 years old when he married her ten years prior. Most prosecutors armed with evidence including obscene images of children under the age of 10 would look past the ruling of LtCol Mori that, under the unique circumstances of this case, “a minor” was someone under the age of 16 vice under the age of 18. But this Government counsel:

testified that he was “prompted . . . to pull up [LtCol] Mori’s [personnel file]” because “the government was looking for some reason why [LtCol] Mori” had defined “minor” as under the age of sixteen, and someone in the prosecutor’s office had mentioned that LtCol Mori had a “very young wife.” He further stated that there was “absolutely no intent to embarrass the military judge. . . . [t]he sole purpose [was] to attempt to figure out if there were any outside influences in his decision.”

Additionally, the OIC testified at length as to his reasons for calling the CMJ. Along with trial counsel and the MJO, the OIC was “perplexed by” LtCol Mori’s ruling as to the definition of “minor.” When the MJO showed him LtCol Mori’s personnel file, which indicated that his wife was seventeen years of age at the time they wed, the OIC believed “at that point there was a relevant issue for the government that suggested bias on the part of [LtCol Mori].”

Ryan, J., diss. op. at 4-5. Nobody at CAAF thinks this was an even remotely good idea, with the dissenters “agree[ing] with the majority that the MJO’s action in accessing LtCol Mori’s personnel record was highly improper and may even rise to the level of an ethical violation.” Diss. op. at 11 N.3. Because of these actions, LtCol Mori was replaced by Colonel (Col) Richardson, who then heard testimony and argument about the Government’s conduct, ultimately ruling that corrective action well short of dismissal was warranted. Col Richardson was undeniably charitable to Government counsel in his ruling on the propriety of their actions that led to LtCol Mori’s removal from this case. But the degree of deference to be afforded to Col Richardson’s ruling is a strong undercurrent in this case, and his ruling is ultimately somewhat unclear. Chief Judge Baker explains:

Col Richardson found neither actual nor apparent unlawful influence regarding trial counsel’s actions. He concluded that “[t]he MJ’s statistically anomalous personal situation in this regard, vis-a-vis his sua sponte raising the age issue and then ruling quickly and curtly in the defense’s favor was a perfectly valid basis for the Government to voir dire and challenge the MJ” and, that “the Government was well within [its] rights based on these facts to inquire into the matter.”

Slip op. at 17. But he also notes:

Regarding LtCol Mori’s marriage, the replacement military judge stated on the record that, “I don’t know that marrying a 17-year-old woman could affect somebody’s career in any way, shape, or form. And I don’t believe that that is a proper consideration. It was a legal marriage.”

Slip op. at 29 N.13. Whatever Col Richardson’s final conclusion about the propriety of the Government’s inquiry, Chief Judge Baker concludes (somewhat anemically) that the inquiry was in fact not proper, listing it among the factors that raise the appearance of unlawful command influence:

Second, in response to what is described by the Government and the CCA as a rumor conveyed by trial counsel, the military justice officer obtained access to the military judge’s official personnel file to determine the age of the military judge’s wife at the time she married the military judge. This marriage occurred ten years prior to Appellant’s trial. Trial counsel made no logical nexus between the wife’s age at marriage and the ruling regarding the age of a minor. Further, there is a considerable difference between marrying a seventeen-year-old, an act sanctioned by law, and possession of child pornography.

Slip op. at 25. Sadly, neither Chief Judge Baker’s majority opinion nor Judge Ryan’s dissent address the overwhelming amount of precedent along the lines that “judicial rulings alone almost never constitute a valid basis for a bias or partiality motion.” Liteky v. United States, 510 U.S. 540, 555 (1994). Such analysis would have been particularly useful in this case, where Government counsel predicated their actions on a tactically insignificant ruling, a factually irrelevant personal event from a decade prior, and an apparent personal grudge (itself the product of a different ruling).

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Today CAAF decided United States v. Salyer, No. 13-0186/MC, (opinion) (CAAFlog case page) finding that the Government’s conduct in accessing the trial military judge’s official personnel record to acquire material used to obtain the judge’s recusal from the case raised some evidence of unlawful command influence, and that the Government failed to prove the harmlessness of this influence. CAAF reversed the NMCCA, set aside the findings, and dismissed the case with prejudice.

Chief Judge Baker wrote for the court, joined by Judges Erdmann and Stucky. Judge Ryan dissented, joined by Senior Judge Cox.

If you haven’t been waiting anxiously for this opinion, here’s something to whet your appetite:

After the members returned, the military judge provided preliminary instructions, including the definition of child pornography, with minor defined as a “real person under the age of 16.” Trial counsel, Capt Maya, proceeded with her opening statement, making the following statement to the members regarding the actions of the investigator in the case:

But at this point all she had was that IP address. She didn’t know who was behind the IP address so she sent a subpoena off and she found out that this IP address was registered to a Danielle Salyer who lived at [address].

Emphasis added. This was an obvious reference to PE 5, which had been excluded. With apparent frustration, the military judge addressed trial counsel outside the presence of the members:

MJ: Stop, stop, stop. I specifically excluded that piece of evidence. How are you going to get it in?

TC: Effect on listener, sir. It is the reason — it is part of the investigation that is –

MJ: Okay, I am not going to allow that in.

TC: But, it wouldn’t be for the truth of –

MJ: It is not coming in. That is a piece of evidence that ties the accused.

TC: And the government would be amenable –

MJ: No –

TC: — to a limiting instruction if we couldn’t get some sort of –

MJ: Well, it’s either going to be a mistrial if you don’t get it in somewhere else.

TC: Sir, the –

MJ: Just listen. That is my ruling. We aren’t going to address that.

TC: Yes, sir.

. . . .

MJ: I’ve considered your argument on the effect on the listener and I am not allowing it.

After this ruling, the Court recessed. Capt Schweig, the military justice officer, later testified that he and unnamed others met and discussed the military judge’s ruling on the definition of a minor. According to Capt Schweig, Capt Maya told him of rumors that “Lieutenant Colonel Mori may have had a young wife.” This prompted Capt Schweig to access LtCol Mori’s official personnel record. According to Capt Schweig, this record indicated that LtCol Mori had been married for ten years and that his wife “was most likely 17 years old or maybe a little bit more at the time they were married.” Capt Schweig further testified that, “The sole basis was an attempt to determine if there was any possible source of bias inherent in the judge’s ruling.” According to this same testimony, having retrieved the information from LtCol Mori’s personnel record, Capt Schweig went to see LtCol Mannle, Officer-in-Charge (OIC) of the base Legal Services Center. They discussed the military judge’s decision to use age sixteen vice age eighteen to define a minor for purposes of the charged child pornography offenses.

Slip op. at 9-11 (emphasis and notation in original). And:

[W]here there is evidence in the record of an effort to unseat a military judge based on the trial counsel’s animosity toward the military judge, to secure a more favorable ruling, or to cause the assignment of an alternative military judge, where the presiding military judge is otherwise qualified to serve, an appearance of unlawful command influence is raised.

Slip op. at 24.

Salyer was the last undecided case of the term, so that’s all folks for ST2012. End o’ Term Stats to follow.

Salyer – Judgment

Here’s a link to the opinion.

http://www.armfor.uscourts.gov/newcaaf/opinions/2012SepTerm/13-0186.pdf

CAAF decided the certified case of LRM v. Kastenberg, No. 13-5006/AF, 72 M.J. 364 (CAAFlog case page) (link to slip op.), on July 18, 2013, finding that it has jurisdiction to decide a challenge by the alleged victim in an Air Force sexual assault general court-martial (who is identified only by the initials LRM) to the trial judge’s ruling limiting the ability of the LRM’s counsel (who was assigned to her by the Air Force) to participate in the proceedings. CAAF reverses the Air Force CCA, which found that it lacked jurisdiction to decide LRM’s challenge to the judge’s ruling. CAAF also reverses the ruling, which had limited the ability of LRM’s assigned counsel to participate in the court-martial, finding that LRM has a limited right to be heard through counsel, including a limited right to have her counsel present legal arguments. CAAF remands the case for further action not inconsistent with its ruling.

Chief Judge Baker writes for the court, joined by Judge Erdmann and Senior Judge Effron. Judge Stucky concurs in part and agrees with the majority that the court has jurisdiction, but dissents in part and agrees with Judge Ryan that LRM lacks standing. Judge Ryan dissents, and writes a lengthy separate opinion.

LRM’s brief to CAAF provided the best glimpse into the otherwise well-hidden facts of this case:

Airman LRM, 627 LRS, McChord AFB, Washington, reported to authorities that on 13 August 2012, [the Accused], 49 CES, Holloman AFB, New Mexico, penetrated her vagina and anus with his finger and penis despite her repeated statements to him to stop, that he was hurting her, and that she was done having sex. This allegation led to two specifications of a violation of UCMJ Article 120 being preferred against him on 16 October 2012 and then being referred to trial by General Court-Martial on 28 November 2012.

LRM was assigned counsel through the Air Force Special Victims’ Counsel (SVC) program. That attorney filed a notice of appearance in the general court-martial, asserting that “LRM had ‘standing involving any issues arising under [M.R.E.] 412, 513, and 514 in which she is the patient or witness as the subject of the motion.'” Slip op. at 3-4. M.R.E. 412 is the “rape shield” rule; 513 is the psychotherapist-patient privilege rule, and 514 is the victim advocate-victim privilege rule.

During a pretrial hearing, LRM’s SVC “indicated that he did not intend to argue at any future M.R.E. 412 or 513 motions hearings.”  Slip op. at 4. But he then shifted this position, noting that “there may be instances where LRM’s interests . . . were not aligned with the Government, in which case [he] asked the court to reserve LRM’s right to present an argument.” Slip op. at 4. The military judge denied the SVC’s request to reserve a right to present argument, and “limited LRM’s right to be heard to factual matters.” The judge differentiated between standing of a party as “the right to present an argument of law before a court,” and the mere “opportunity to be heard” that is afforded to LRM as an alleged victim or a patient under M.R.E. 412, 513, and 514. Slip op. at 4. The judge also found that LRM lacked standing to litigate the production of documents, and that her SVC could not argue evidentiary matters on her behalf. Slip op. at 5.

LRM sought relief from the Air Force CCA, but that court concluded that “the All Writs Act does not give us the authority to issue a writ of mandamus regarding this particular, collateral, civil/administrative issue involving a non-party to the court-martial.” LRM v. Kastenberg, Misc. Dkt. No. 2013-05, slip op. at 7 (A.F.Ct.Crim.App. Apr 2, 2013). The Judge Advocate General of the Air Force then certified the case to CAAF, with three issues:

I. Whether the Air Force Court of Criminal Appeals erred by holding that it lacked jurisdiction to hear A1C LRM’s petitino for a writ of mandamus.
II. Whether the military judge erred by denying A1C LRM the opportunity to be heard through counsel thereby denying her due process under the Military Rules of Evidence, the Crime Victims’ Rights Act and the United States Constitution.
III. Whether this Honorable Court should issue a writ of mandamus.

The majority answers issues I and II in the affirmative, but finds that a writ of mandamus is not the appropriate remedy, instead returning the case to the JAG for remand to the trial judge for further action.

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CAAF decided United States v. Brown, No. 13-0244/NA, 72 M.J. 359 (CAAFlog case page) (link to slip op.), on July 15, 2013, finding that the military judge did not abuse his discretion under Military Rule of Evidence 611(a) when he allowed the victim advocate to sit next to the 17 year-old victim during her testimony against Appellant, affirming the NMCCA.

Chief Judge Baker writes for a unanimous court.

Appellant, Master-At-Arms First Class (E-6) Donald Brown, was convicted in 2011, contrary to his pleas, by a general court-martial composed of members with enlisted representation, of rape of a child, aggravated sexual assault of a child, two specifications of child endangerment, and three specifications of indecent liberties with a child, in violation of Articles 120 and 134, UCMJ. The members sentenced him to confinement for forty-five years, reduction to E-1, and a dishonorable discharge, and that sentence was approved.

In 2009 Appellant was accused of having provided alcohol and pornography to his two step-daughters. He was also alleged to have sexually assaulted one of the girls, [AW], from 2004 to 2008. In 2011, AW, then almost 18 years old, testified for the Government at Appellant’s court-martial. However, she began crying uncontrollably at the beginning of the prosecution’s direct examination. The members were excused and the military judge asked the prosecution how it would proceed. Trial counsel asked the judge to allow AW’s “victim advocate” to sit next to her in the courtroom during her testimony. Over objection from the defense, the military judge permitted the victim advocate to sit next to the witness throughout her testimony. The military judge also provided an instruction to the members about the presence of the advocate. AW then testified about the Appellant’s numerous sexual assaults of her, and Appellant was convicted.

On appeal, Appellant asserted that the military judge’s decision to allow the victim advocate to sit next to AW while she testified was improper, and that it violated his constitutional right to due process by eroding the presumption that he was innocent. In response, the Government asserted that the military judge merely exercised reasonable control over the proceedings, as was his duty under Rule for Courts-Martial (R.C.M.) 801 (“Military judge’s responsibilities…”) and M.R.E. 611 (“Mode and order of interrogation and presentation”). For a detailed analysis of these positions, see my argument preview in this case. The Navy-Marine Corps CCA rejected Appellant’s challenge.

Chief Judge Baker begins his discussion with the following language that is fantastically bad for Appellant’s case:

We review a military judge’s control of the mode of witness interrogation pursuant to M.R.E. 611 for abuse of discretion. Similarly, we review a military judge’s exercise of “reasonable control over the proceedings” pursuant to R.C.M. 801 for abuse of discretion.

Slip op. at 7 (citations omitted). Appellant asked CAAF to apply “close judicial scrutiny,” and argued that the presence of the victim advocate was “inherently prejudicial.” CAAF’s unanimous decision to test this case for an abuse of discretion (the standard most deferential to the trial judge’s decision), and to avoid any discussion of constitutional due process, is an outright and complete rejection of Appellant’s main argument. Though, the Chief Judge is kind enough to not say so explicitly.

But the opinion is short, with Chief Judge Baker dedicating just two pages to the analysis of why the military judge did not abuse his discretion by “allowing a support person to accompany AW on the stand.” Slip op. at 9. See also slip op. at 5-6 N.4 (“Courts generally refer to an adult who accompanies a witness to the stand to facilitate the witness’s testimony as an ‘attendant’ or ‘support person.’ . . . this case and this opinion only address the use of a trained victim advocate as a support person.”). This analysis is nicely summarized in the penultimate paragraph of the opinion:

In this case, the witness was physically overtaken by sobbing and could not provide information to the court. Where, as here, the military judge took reasonable steps to test the witness’s capacity to continue as well as steps to mitigate the risks of prejudice to the accused, it was within the military judge’s discretion to conclude that further attempts to proceed with a witness in such a state would “needless[ly] consum[e] . . . time,” M.R.E. 611 (a)(2), and do not aid in “ascertainment of the truth,” M.R.E. 611 (a)(1).

Slip op. at 10. And so CAAF finds no error and affirms.

There are few practice points to be drawn from this short opinion, but two are clear. First, military judges wield a lot of power over the mode and method of presentation of the evidence. And second, a successful challenge to a particular exercise of this power requires a well-developed record; if the judge permits a party to use an undesirable method to present evidence, opposing counsel must fight hard to get the judge to make detailed findings if they hope to successfully challenge the method on appeal.

Case Links:
NMCCA oral argument audio
NMCCA opinion
Blog post: CAAF grants
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview
CAAF oral argument audio
CAAF opinion
Blog post: Opinion analysis

CAAF today issued a 3-2 decision in LRM v. Kastenberg concluding that the trial judge erred by denying A1C LRM, the alleged victim of a sexual assault, the right to be heard through counsel at the accused’s court-martial, and that the Air Force CCA erred in concluding it lacked jurisdiction to hear A1C LRM’s appeal.  Chief Judge Baker delivered the decision of the court, with Judge Ryan dissenting and Judge Stucky concurring in part and dissenting in part and in the result.

CAAF did not issue the requested mandamus, but instead “returned [the record] to the Judge Advocate General of the Air Force for remand to the military judge for action not inconsistent” with CAAF’s opinion.

Lots of analysis to follow.

CAAF now has only one case left from this term:  United States v. Salyer. 

CAAF’s daily journal for yesterday has this entry:

No. 12-0408/MC.  U.S. v. Lawrence G. HUTCHINS III. CCA 200800393.  On consideration of Appellee’s petition for reconsideration of this Court’s decision, and Appellant’s motion to issue the mandate of the Court forthwith, it is ordered that Appellee’s petition for reconsideration be, and the same is, hereby denied, and Appellant’s motion to issue the mandate of the Court forthwith be, and the same is, hereby granted.

And:

MANDATES ISSUED

No. 12-0408/MC.  U.S. v. Lawrence G. HUTCHINS III. CCA 200800393.

CAAF decided United States v. Wilson, No. 13-0096/AR, 72 M.J. 347 (CAAFlog case page) (link to slip op.), on July 11, 2013, finding that Appellant’s right to a speedy trial under Article 10 was not violated and affirming the decision of the Army Court of Criminal Appeals.

Judge Erdmann writes for the court, joined by Judges Ryan and Stucky. Chief Judge Baker dissents, joined by Senior Judge Cox who also writes a separate dissenting opinion.

Appellant was convicted by a general court-martial composed of a military judge alone, pursuant to mixed pleas, of various drug offenses and an orders violation, and sentenced to reduction to E-1, confinement for 40 months, and a bad-conduct discharge. Pursuant to a pretrial agreement, the convening authority approved only 21 of the 40 months of confinement, and he credited Appellant with 174 days of pretrial confinement. Those 174 days are the heart of the matter before CAAF, which granted review to determine: “Whether Appellant was denied his right to a speedy trial in violation of Article 10, UCMJ, when the Government failed to act with reasonable diligence in bringing him to trial.”

After the court granted review, we remarked that the case presented a Monty Python-esque protest by Article 10 that it’s “not dead yet.” Many trial practitioners know better, as the putrefying corpse of Article 10 is a great topic for brief-writing, but invariably a loser for the defense.

And so it continues in Wilson, as a sharply divided court finds that despite “several periods of unexplained or unjustified delay,” (slip op. at 19) Appellant’s “Article 10 right to a speedy trial was not violated” (Slip op. at 20). Just Erdmann begins his opinion by noting that Appellant raised only an Article 10 claim at CAAF, and he limits his analysis to this statutory guarantee (and does not discuss the regulatory guarantee of R.C.M. 707 or the constitutional guarantee of the 6th Amendment). Slip op. at 4. The issue was extensively litigated at the trial stage, where Appellant was denied relief, and CAAF enjoys a well-developed record to review (a point Judge Erdmann notes in footnote 14).

Early in the opinion, Judge Erdmann re-states the settled principle that Article 10 “imposes on the Government a more stringent speedy-trial standard than that of the Sixth Amendment.” Slip op. at 8 (marks and citation omitted). A long footnote reveals that this “more stringent” standard is found only in the invocation of the legal analysis, and not in its actual application:

While the federal circuits seem to require a delay approaching a year to review Sixth Amendment speedy trial claims, a much shorter delay will trigger the full Barker analysis in an Article 10 case. Indeed, in Wilson’s case, even the Government concedes that the pretrial delay of 174 days “would likely constitute a facially unreasonable delay.” Thus, while Chief Judge Baker’s dissent suggests that this court has viewed the “more stringent” Article 10 standard as essentially the same as the Sixth Amendment standard, this very case is evidence of the application of a more stringent standard for speedy trials in the military.

Slip op. at 9 N.2 (citations omitted). In other words, the fire to which the Government’s feet will be held is rhetorical. And Judge Erdmann’s application of the four factors identified by the Supreme Court in Barker v. Wingo, 407 U.S. 514, 530 (1972), to the facts of this case seems to be just that, as he repeatedly shifts the burden to Appellant.

First, Judge Erdmann concludes that the 174 days of pretrial confinement is, under the circumstances of this case, “sufficient to trigger the full Barker analysis.” Slip op. at 11. But “[i]n its brief the Government concedes that the 174-day delay ‘would likely constitute a facially unreasonable delay.'” Slip op. at 11. So, no surprise here.

Second, Judge Erdmann adopts the trial judge’s allocation of responsibility for the 174 days, with 16 days attributed to the judge, 43 days attributed to the Defense, and 115 attributed to the Government. Slip op. at 12. The trial judge also noted three specific time periods that he found to be “improper and to reflect a lack of proper diligence in a case involving a confined accused” (slip op. at 13), “not justified” (Id.), and “unusual and unjustified” (Id.). Judge Erdmann and the majority:

share the military judge’s concern that there appear to be “several periods during which the Government seems to have been in a waiting posture.” The Government is tasked with handling cases with “reasonable diligence,” and the inattention to timeliness in Wilson’s case is troubling. However, the stipulated timeline, adopted by the military judge as a finding of fact, provides a factual explanation for much of the delay attributable to the Government. The timeline provides context and explanations which reflect reasonable pretrial decisions and activities including potential immunity for other actors, the unit’s pending deployment to Afghanistan, drug testing by USACIL, and “complicated” pretrial negotiations.

Slip op. at 14 (citation omitted). While Judge Erdmann and the majority are satisfied with the “context and explanations” (not to be confused with “excuses”) offered by the Government to explain its “improper,” “unusual,” and “unjustified” delays, it’s hard to forget the incredulity of Judge Stucky who, during the oral argument of this case, asked if the entire unit had “decamped” in preparation for its deployment, leaving not a man behind to oversee the prosecution of the confined Appellant as the months passed. And yet, Judge Stucky now joins the majority that excuses the “improper,” “unusual,” and “unjustified” delays, with Judge Ermann writing that “the delays identified by the military judge weigh against the Government, however, that weight is minimized when balanced against the Government’s explanations as to the overall time period.” Slip op. at 15.

Third, while Appellant did demand a speedy trial, and even litigated the question of denial of that right at the trial stage, Judge Erdmann and the majority actually fault Appellant for not complaining even earlier, noting that the speedy trial demand did not come until Appellant had been in pretrial confinement for 119 days. The majority “agree[s] with the military judge that the timing of Wilson’s demand for a speedy trial affords it only slight weight in his favor.” Slip op. at 15. This agreement is contextualized by a comment that “the demand for speedy trial did not occur until fourteen days after Wilson’s offer to plead guilty was denied.” Slip op. at 15. But this context only adds insult to injury, as the delay incurred during consideration of Appellant’s offer to plead was itself deemed “unusual and unjustified”:

The final period of delay identified by the military judge was November 10 to 30, 2010. This period commenced with the submission of Wilson’s Offer to Plead Guilty and terminated with the convening authority’s rejection of the offer. While the military judge noted that the unit’s chain of command was deployed during that period, the length of delay was “unusual and unjustified.”

Slip op. at 13. Appellant appears to blame for the Government’s delay.

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CAAF decided United States v. Mott, No. 12-0604/NA, 72 M.J. 319 (CAAFlog case page) (link to slip op.), on July 8, 2013. The case presented two significant but distinct issues. The first asked CAAF to determine the appropriate standard for an insanity defense under Article 50a, and CAAF finds that an objective standard of wrongfulness is appropriate under the Code, affirming the trial judge’s instruction to the members and the decision of the NMCCA. The second issue addresses the admission of Appellant’s confession to NCIS, and CAAF finds that the trial military judge abused his discretion when he admitted the confession because he failed to conduct a proper analysis, and that this error was not harmless. CAAF sets aside the findings and authorizes a rehearing in this case where Appellant has already been twice-convicted of attempted premeditated murder.

Chief Judge Baker writes for a unanimous court.

This case arose out of a stabbing that occurred aboard USS CAPE ST GEORGE in 2007. Appellant, who was suffering from paranoid delusions and was later diagnosed with schizophrenia, believed that the victim (a fellow sailor he had never seen before) participated in a gang rape of Appellant some four years earlier. Appellant was tried and convicted in 2008, contrary to his pleas, by a military judge sitting as a general court-martial, of attempted premeditated murder. The approved sentence was confinement for 12 years, total forfeitures, reduction to E-1, and a dishonorable discharge. But the NMCCA set aside the findings in 2009 due to a Government discovery violation (Mott I).

Appellant was retried in 2010, this time before a general court-martial composed of officer members. He was again convicted, contrary to his pleas, of attempted premeditated murder, and was sentenced to confinement for nine years, reduction to E-1, and a dishonorable discharge. The NMCCA affirmed the findings and sentence in April 2012 (Mott II)

During the second trial, Appellant unsuccessfully presented the affirmative defense of lack of mental responsibility. In response to a question from a member regarding the legal definition of wrongfulness, the military judge instructed that:

When the law speaks of wrongfulness[,] the law does not mean to permit the individual to be his own judge of what is right or wrong. What is right or wrong is judged by societal standards. The standard focuses on the accused’s ability to appreciate that his conduct would be contrary to public or societal standards.

Slip op. at 7. But at trial, before the CCA, and at CAAF, Appellant argued that the definition should “incorporate[] the subjective beliefs of the accused in determining wrongfulness.” Slip op. at 8. Appellant also unsuccessfully moved to suppress his confession at trial.

Chief Judge Baker’s opinion begins by noting that the insanity defense in Article 50a is “substantively identical” to the federal insanity defense created by the Insanity Defense Reform Act of 1984 (IDRA). The IDRA broadened the common law test developed in the English law M’Naghten’s Case, 8 Eng. Rep. 718 (1843), and requires that a defendant suffering from a severe mental disease or defect be unable to appreciate (rather than merely know) the nature and quality or the wrongfulness of his acts. But “wrongfulness” is not defined in the UCMJ, and Appellant argued that it should be “determined by an accused’s sense of right and wrong.” Slip op. at 13. CAAF rejects this argument, and Chief Judge Baker notes that M’Naghten’s Case and the decisions of many of our federal courts have settled on an objective test that refers to societal or public standards of morality:

Society formally expresses its determinations of “right and wrong” and “public morality” through law. Thus, wrongfulness is based on the law, even if it does not require the accused to have actual knowledge of the law. While “appreciate” is subjective, “wrongfulness” must be objective. Thus, “appreciating wrongfulness” is the accused’s ability to understand and grasp that his conduct violates society’s essential rules, and is supported by an accused’s understanding that his conduct violated the law, and is contradicted by evidence that — if the facts of the accused’s delusions were true — then his conduct would not violate the law.

Slip op. at 15-16 (citations omitted). Thus, CAAF concludes that the panel was properly instructed by the trial judge.

But CAAF finds significant fault with a different action of the trial judge: “Without deciding whether Appellant knowingly and intelligently waived his right to counsel, we hold that the military judge abused his discretion by failing to analyze as a matter of law whether Appellant could and did knowingly and intelligently waive his rights.” Slip op. at 17.

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Today CAAF decided United States v. Brown, No. 13-0244/NA (opinion) (CAAFlog case page), finding that the military judge did not abuse his discretion under Military Rule of Evidence (M.R.E.) 611(a) when he allowed the victim advocate to sit next to AW during her testimony, affirming the NMCCA in a unanimous opinion authored by Chief Judge Baker.

Still undecided are LRM, and Salyer. Analysis of Brown to follow…

CAAF decided the certified case of United States v. Schell, No. 13-5001/AR, 72 M.J. 339 (Schell II) (CAAFlog case page) (link to slip op.), on July 8, 2013, finding that the CCA erred in interpreting the intent requirement of 18 U.S.C. § 2422(b), and in finding that Appellee’s unsworn statement was inconsistent with his pleas of guilty. But CAAF finds that the military judge’s failure to discuss the substantial step requirement of an attempt with Appellee provides a substantial basis in law to question his plea to attempted persuasion, inducement, or enticement of a minor to engage in sexual activity in violation of 18 U.S.C. § 2422(b). The court affirms the Army CCA’s action that set aside the findings of guilty of the § 2422(b) offense and authorized a rehearing.

Judge Stucky writes for a unanimous court.

Appellee was convicted by a general court-martial composed of a military judge alone, pursuant to his pleas of guilty, of attempted indecent language and attempted indecent acts in violation of Article 80, UCMJ, and of attempted persuasion, inducement, or enticement of a minor to engage in sexual activity in violation of 18 U.S.C. § 2422(b), as incorporated by clause 3 of Article 134, UCMJ. He was sentenced to confinement for 18 months, total forfeitures, and a bad-conduct discharge. Pursuant to a pretrial agreement, the confinement was reduced to 13 months.

The case arose out of Appellee’s graphic internet chats in 2010 with what he thought was a 10 year-old girl. Appellee talked to the “girl” about sex, described his girlfriend to “her,” asked if “she” would participate in sexual activity with his girlfriend and him, and sent “her” images of his erect penis hoping “she” would send him graphic photos of herself. He also arranged to meet “her” for the purpose of sexual activity, but cancelled the planned meeting and then ceased all contact. Of course, “she” was actually a law enforcement officer. Eventually Appellee was apprehended, leading to his pleas of guilty. But in the plea inquiry for the § 2422(b) offense, the military judge did not inform Appellee that in order to be guilty he must have taken a substantial step toward the commission of the underlying offense. Appellee did admit that the messages and images were “steps to persuade [the "girl"] to engage in sexual acts with him,” but in his unsworn statement he claimed that “he never actually intended to act on their discussions.” Slip op. at 5-6.

In a published en banc opinion, a divided Army CCA found “that the intent element of attempted persuasion, inducement, or enticement requires the accused intend to actually persuade, induce, or entice a minor to actually engage in illegal sexual activity.” United States v. Schell, 71 M.J. 574, 578–79 (A. Ct. Crim. App. 2012) (Schell I). The CCA relied on legislative history to make this finding. Further, because Appellee claimed in his unsworn statement that he never intended to do anything with the “girl,” a majority of the CCA found that the unsworn statement was inconsistent with the plea, and set aside the finding of guilty. The CCA did not address the substantial step issue.

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Today CAAF decided United States v. Wilson, No. 13-0096/AR (CAAFlog case page) (link to slip op.), finding that Appellant’s right to a speedy trial under Article 10 was not violated, affirming the decision of the Army Court of Criminal Appeals.

Judge Erdmann writes for the court, joined by Judges Ryan and Stucky. Chief Judge Baker dissents, joined by Senior Judge Cox who also writes a separate dissenting opinion.

As in Mizgala, 61 M.J. at 129, we share the military judge’s concern that there appear to be “several periods during which the Government seems to have been in a waiting posture.” The Government is tasked with handling cases with “reasonable diligence,” id., and the inattention to timeliness in Wilson’s case is troubling. However, the stipulated timeline, adopted by the military judge as a finding of fact, provides a factual explanation for much of the delay attributable to the Government. The timeline provides context and explanations which reflect reasonable pretrial decisions and activities including potential immunity for other actors, the unit’s pending deployment to Afghanistan, drug testing by USACIL, and “complicated” pretrial negotiations.

The delays identified by the military judge weigh against the Government, however, that weight is minimized when balanced against the Government’s explanations as to the overall time period. There is no evidence indicating that the Government was engaged in a “deliberate attempt to delay the trial in order to hamper the defense,” which would weigh heavily against the Government. Johnson, 17 M.J. at 259; Barker, 407 U.S. at 531.

Slip op. at 14-15. More to follow.