Whether you consider “military due process” to be more like a bear or a zombie, CAAF’s opinion in United States v. Vazquez, No. 12-5002/AF, makes it clear that there is no such animal:

the AFCCA mistakenly relied on the concept of “military due process,” an amorphous concept as used by the AFCCA that appears to suggest that servicemembers enjoy due process protections above and beyond the panoply of rights provided to them by the plain text of the Constitution, the UCMJ, and the MCM. They do not.

Vazquez, slip op. at 15. Judge Ryan writes for the majority, with Chief Judge Baker and Judge Stucky each writing separate concurring opinions.

The case involves a general court-martial conviction for aggravated sexual contact with a child under the age of 12. The alleged victim (who was 4 or 5 at the time of trial) testified by remote means during the trial, and four other government witnesses also testified, before one of the members realized that the father, whom he had seen in the witness waiting area, was one of his subordinates in the rating chain. The member was excused, but this reduced the panel to four members; below the quorum of five required for a general court-martial. Five additional members were detailed by the Convening Authority and, after voir dire, two were added to the panel. A verbatim transcript of the proceedings up to that point was produced and read to the two new members (in accordance with Rule for Courts-Martial 805(d)(1)).

There was no objection from the defense, but in a published opinion the Air Force CCA set aside the findings and dismissed the charge. United States v. Vazquez, 71 M.J. 543 (A.F.C.C.A. 2012) (Vazquez I). The court’s action was predicated on it finding “a violation of the appellant’s military due process rights” which the court found “per se prejudicial and mandate reversal of the appellant’s conviction.” Vazquez I, 71 M.J. at 552 (emphasis added).

Not so fast, says Judge Ryan:

The AFCCA was required, given the absence of any objection at trial, to conduct plain error analysis and identify the specific prejudice to a substantial right of Appellee. Its determination that reversal was required because “military due process” was violated, without more, was, quite simply, incorrect.

Vazquez, slip op. at 7-8. Judge Ryan then begins a plain-error analysis of whether the procedures in Article 29(b) and Rule for Courts-Martial 805(d)(1) are unconstitutional as-applied to the Appellee. She finds that they are not, and that the military judge did not err, because:

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We’ve previously reviewed how to kill a zombie:  with a sharp blow to the head.  Until last year, it wouldn’t have even occurred to us that there was a military due process zombie that needed killing; no such zombie had been seen lurching about since bell bottoms were in style and Starsky and Hutch were driving around in their striped Torino.  Then came Untied States v. Vazquez, 71 M.J. 543 (A.F. Ct. Crim. App. 2012), and it was as if zombie Paul Michael Glaser was back in the driver’s seat.  But today’s Vazquez opinion to bludgeoned the zombie’s noggin:

AFCCA mistakenly relied on the concept of “military due process,” an amorphous concept as used by the AFCCA that appears to suggest that servicemembers enjoy due process protections above and beyond the panoply of rights provided to them by the plain text of the Constitution, the UCMJ, and the MCM. They do not.

Vazquez, No. 12-5002/AF, slip op. at 15.  Thwack!  There is no freestanding concept of miltary due process that allows judges to create rights not established by the Constitution, a statute, or a regulation.  Kabong!  One dead zombie legal theory.  I don’t think it will be getting up again.

The CAAF has decided United States v. Vazquez.

RYAN, J., delivered the opinion of the Court, in which ERDMANN,  J., and EFFRON, S.J., joined. BAKER, C.J., and STUCKY, J., each filed separate opinions concurring in the result.

[T]the Judge Advocate General of the Air Force asked this Court to consider the following questions:

I. WHETHER THE AIR FORCE COURT OF CRIMINAL
APPEALS ERRED BY HOLDING THAT APPELLEE WAS
NOT AFFORDED A FUNDAMENTALLY FAIR TRIAL, AS
GUARANTEED BY MILITARY DUE PROCESS AND THE
UCMJ, WHEN TWO REPLACEMENT COURT MEMBERS
DETAILED AFTER TRIAL ON THE MERITS HAD BEGUN
WERE PRESENTED RECORDED EVIDENCE PREVIOUSLY
INTRODUCED BEFORE THE MEMBERS OF THE COURT
IN COMPLIANCE WITH ARTICLE 29, UCMJ, AND
R.C.M. 805(d)(1);

II. WHETHER THE AIR FORCE COURT OF CRIMINAL
APPEALS ERRED BY FAILING TO FIND WAIVER OR
BY FAILING TO CONDUCT A PLAIN ERROR
ANALYSIS; INSTEAD, THE COURT INCONGRUOUSLY
FOUND THE ALLEGED VIOLATION OF APPELLEE’S
RIGHT TO MILITARY DUE PROCESS WAS PER SE
PREJUDICIAL DESPITE DECLARING THAT THE ERROR
WAS NOT STRUCTURAL.

Appellee has not shown that the application of Article 29(b), UCMJ, 10 U.S.C. § 829(b) (2006), and R.C.M. 805(d)(1) was unconstitutional as applied to him, and the military judge’s decision to proceed in accordance with the procedure set out by Congress in Article 29(b), UCMJ, was not an abuse of discretion.  Accordingly, the AFCCA’s decision is reversed.

Audio of the oral argument of United States v. Vazquez, No. 12-5002/AF, on Wednesday, October 24, 2012, is posted on CAAF’s website at this link.

In 1984, President Reagan’s reelection campaign produced a television advertisement about a bear (a representation of the Soviet Union and communism in general). The ad discussed how some some see the bear as dangerous, some see it as tame, and some don’t see it at all. Like the dangerous bear, the existence and scope of something called “military due process” is an almost existential question that CAAF will take up when it hears oral argument in United States v. Vazquez, No. 12-5002/AF, on Wednesday, October 24, 2012, after the argument in United States v. Halpin, No. 12-0418/AF.

The factual and procedural history of this case, which was tried in 2009, are not exactly textbook. Staff Sergeant Ray Vazquez, USAF, was charged with aggravated sexual contact with a child under the age of 12, in violation of Article 120 (2007). The allegation arose from a 4-year-old’s pronoun-confused statement to her mother that “Uncle Ray made me lick her body,” followed by the child pointing to the groin area of a pediatrician’s doll to indicate that she had been touched in that area. SSgt Vazquez was a close friend of the girl’s family (both parents were enlisted servicemembers), and AFOSI arranged a pretext phone call between the father and SSgt Vazquez, during which the SSgt adamantly denied the allegation.

The case found its way to trial by a general court-martial composed of five officer members, but before the members were seated the Military Judge granted a prosecution request to allow the girl to testify via remote means (video feed). After the girl testified, along with her mother, the pediatrician, an AFOSI investigator, and a Government expert, one of the members realized that the father, whom he had seen in the witness waiting area, was one of his subordinates in the rating chain. The member was quickly excused, but this reduced the panel to four members; below the quorum of five required for a general court-martial.

Five additional members were detailed by the Convening Authority and, after voir dire, two were added to the panel. A verbatim transcript of the proceedings up to that point was produced and read to the two new members (in accordance with Rule for Courts-Martial 805(d)(1)). The Defense did not object or request a mistrial, and the trial continued, with testimony from the girl’s father followed by testimony from SSgt Vazquez, during which he forcefully denied the charge. The members then returned a finding of guilty, and a sentence of a dishonorable discharge, 8 years of confinement, forfeiture of all pay and allowances, reduction to E-1, and a reprimand. The Convening Authority approved the sentence as adjudged.

33 months later, in a published opinion released on March 19, 2012, and subsequently corrected on April 27, 2012, the Air Force Court of Criminal Appeals set-aside the findings and dismissed the charge. United States v. Vazquez, 71 M.J. 543 (A.F.C.C.A. 2012). The court’s action was predicated on it finding “a violation of the appellant’s military due process rights” which the court found “per se prejudicial and mandate reversal of the appellant’s conviction.” Vazquez, 71 M.J. at 552 (emphasis added). The CCA determined that:

We hold that the appellant was not afforded a fundamentally fair trial, as guaranteed by military due process and the UCMJ, when two of the six court members were added to the panel after five of the Government’s six witnesses had already testified and thus did not receive a substantial portion of the Government’s evidence in the same manner as the other four panel members.

Vazquez, 71 M.J. at 546 (emphasis added). And:

Given the critical importance of the evidence provided by the five witnesses, reading the trial transcript to the panel members was an inadequate substitution for the witness’ in-court testimony. As such, there was no procedural method, short of having each witness testify again, that would ensure the appellant received the full due process protections afforded by the UCMJ. We find that, under the facts of this case, the military judge had a sua sponte duty to declare a mistrial.

Vazquez, 71 M.J. at 551-52 (emphasis added). During the period between the two opinions, SSgt Vazquez sought habeas relief, and the Government sought reconsideration. The CCA denied both requests, basing its habeas action on the principle that the CCA’s action is not final until the running of a 30-day period for certification or reconsideration. SSgt Vazquez remained confined and in late-May the Judge Advocate General of the Air Force certified two issues to CAAF:

I. Whether the Air Force Court of Criminal Appeals erred by holding that Appellee was not afforded a fundamentally fair trial, as guaranteed by military due process and the UCMJ, when two replacement court members detailed after trial on the merits had begun were presented recorded evidence previously introduced before the members of the court in compliance with Article 29, UCMJ, and R.C.M. 805(d)(1).

II. Whether the Air Force Court of Criminal Appeals erred by failing to find waiver or by failing to conduct a plain error analysis; instead, the court incongruously found the alleged violation of Appellee’s right to military due process was per se prejudicial despite declaring that the error was not structural.

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