CAAFlog » September 2012 Term » United States v. Mackie

In a case we haven’t been following (update: except in an earlier stage, in posts here and here), CAAF issued a per curiam opinion today “to clarify that even after an initial appellate court decision, the Moreno standard for speedy post-trial review is still applicable as the case continues through the appellate process.” United States v. Mackie, No. 13-0184/AF, 72 M.J. 135, slip op. at 1 (C.A.A.F. Apr. 19, 2013) (per curiam) (CAAFlog case page) (link to slip op.).

The appellant, AFC A1C Mackie, was convicted pursuant to his pleas at a special court-martial in September, 2006. The AFCCA completed its review in September, 2007, and remanded the case for a sanity board finding that the military judge had improperly denied the appellant’s request under RCM 706. Another five years passed before the CCA completed its review, affirming the findings and sentence in October, 2012. The CCA also rejected a claim that the appellant was denied due process by the delay because (1) the delay occurred after an initial appellate decision and (2) the delay was not malicious, citing United States v. Roach, 69 M.J. 17 (C.A.A.F. 2010).

Not so fast, says CAAF. “Here, the CCA initially returned the case to the JAG to be sent to a convening authority who was authorized to order a sanity board. That sanity board was conducted, but the convening authority took no further action on the case for over two years. Our decision in Moreno is equally applicable in this factual situation and the CCA erred in concluding otherwise. Nevertheless, we are convinced that the delay in this case was harmless beyond a reasonable doubt.” Slip op. at 4.

We previously noted that the Judge Advocate General of the Air Force certified five cases to CAAF from July to December 2007. CAAF has already decided three of those cases, affirming the Air Force Court’s ruling in each. CAAF’s opinion in United States v. Perez — a short per curiam issued just 81 days after the oral argument — appeared to reflect some disagreement with the Judge Advocate General of the Air Force as to whether the case was worthy of certification. See United States v. Perez, 66 M.J. 164 (C.A.A.F. 2008) (per curiam).

Now comes United States v. Mackie, __ M.J. ___, No. 08-5005/AF (C.A.A.F. Apr. 21, 2008) (per curiam) — another Air Force certified issue case. CAAF didn’t even find the case worthy of oral argument before affirming it in another short per curiam opinion.

Mackie affirms the Air Force Court’s ruling, 65 M.J. 762 (A.F. Ct. Crim. App. 2007), that the military judge erred by concluding that A1C Mackie had received an adequate substitute for a 706 board based on opinions rendered by an Air Force clinical psychologist who had seen Mackie “twice by appointment and once for a brief walk-in conversation, never conducted a forensic examination or participated in a sanity board, and was unaware of [Mackie's] claimed memory losses and blackouts.” Mackie, No. 08-5005/AF, slip op. at 3. As CAAF observed, the psychologist “admitted he had not conducted a forensic examination of [Mackie] or spent much time with him, and that he was unfamiliar with R.C.M. 706 rules and
standards.” Id., slip op. at 6. The psychologist did opine that Mackie “was capable of standing trial,” but the psychologist “could not opine on whether [Mackie] understood the nature and quality of his actions at the time the alleged criminal conduct occurred, as required by English, 47 M.J. at 218-19, and R.C.M. 706(c)(2)(C).” Id.

The upshot was not merely a slam dunk affirmance, but an off-the-glass, one-handed windmill slam dunk of an affirmance. Sprite might have to retroactively strip Dwight Howard of his 2008 Slam Dunk Contest title and award it to Mackie instead.

Yesterday CAAF docketed two certified issues in an Air Force case:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS APPLIED THE CORRECT STANDARD OF REVIEW WHEN DETERMINING WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE DENIED THE DEFENSE MOTION FOR A SANITY BOARD.

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY FINDING THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE DENIED APPELLANT’S REQUEST FOR A SANITY BOARD FINDING HE HAD NOT MET HIS BURDEN OF FACTUAL PERSUASION TO JUSTIFY AN INQUIRY PURSUANT TO R.C.M. 706.

United States v. Mackie, __ M.J. ___, No. 08-5005/AF (C.A.A.F. Dec. 26, 2007). The Air Force Court’s opinion in the case is published at 65 M.J. 762 (A.F. Ct. Crim. App. 2007). We previously discussed that opinion here.

This is the fifth case that the Judge Advocate General of the Air Force has certified to CAAF since July. In the preceding eight years, the Judge Advocate General of the Air Force had certified a total of three cases to CAAF. So far in 2007, there have been six cases certified to CAAF — five (Webb, Miller, Melson, Perez, Mackie) by the Judge Advocate General of the Air Force and one (Gutierrez) by the Judge Advocate General of the Army.

In each year from 2003 through 2006, the Judge Advocate General of the Army won the certification derby. In 2002 the champ was, of all people, the Judge Advocate General of the Coast Guard, who was responsible for the only two certified issues during that calendar year. The Judge Advocate General of the Navy was the champ in 1999 and 2000 and tied with the Judge Advocate General of the Air Force in 2001. Laying out the service breakdown on a graph suggests hot and cold streaks in each service. It makes me wonder whether the hot streaks were caused by some particular individual pushing for certifications with a cold streak following when that individual PCSed or retired. If so, my guess is that the directors of the respective appellate government divisions are the key players in the certification process. It would be interesting to overlay a graph of the appellate government heads’ tenure on the graph of the corresponding service’s certification numbers.

In a published opinion, the Air Force Court of Criminal Appeals ruled that a military judge erred by failing to grant the defense’s request for an R.C.M. 706 board. United States v. Mackie, __ M.J. ___, No. ACM S31090 (A.F. Ct. Crim. App. Sept. 24, 2007). The Air Force Court ruled that the military judge erred by concluding that a stipulation of expected testimony from an Air Force staff psychologist with whom A1C Mackie had been consulting was a sufficient substitute for the requested R.C.M. 706 board.

The Air Force Court explained that “a sanity board does not have to be ordered if an adequate substitute has already been conducted.” Id., slip op. at 2. The court helpfully sets out the factors to consider when determining whether a substitute is adequate:

1) participation of a psychologist or someone with similar expertise; 2) performance of a forensic mental examination; 3) knowledge by the performing doctor(s) “of the reason for doubting” the subject’s “mental capacity;” 4) determination of whether the subject is capable of standing trial; 5) the ability to examine and cross-examine the performing doctor(s); . . . 6) the opinion that no further evaluation would be needed to answer the questions required by R.C.M. 706 . . . [and 7)] a description of the examiner’s familiarity with forensic evaluation or participation in previous sanity boards.

Id., slip op. at 3.

The court concluded that only four of those seven factors were satisfied in this case, and that they were insufficient to establish that the staff psychologist’s opinion was an adequate substitute for an R.C.M. 706 board.

The Air Force Court remedied the error by returning the case to the Judge Advocate General of the Air Force to send to a CA, who may order a sanity board to determine whether A1C Mackie is currently mentally competent, whether he was mentally competent at the time of trial, and whether he was mentally responsible at the time of his alleged offenses. Id., slip op. at 5. “Depending on the results of the board, the convening authority may order a rehearing or return the record to this Court for further review. If the convening authority finds ordering a sanity board impracticable, the record will be returned to this Court for further review.” Id., slip op. at 5-6.