Opinion Analysis: CAAF holds that Article 13 evidence is admissible in mitigation, yet finds no error in the exclusion of such evidence in United States v. Carter, No. 14-0792/AR
CAAF decided the Army case of United States v. Carter, 74 M.J. 204, No. 14-0792/AR (CAAFlog case page) (link to slip op.), on Wednesday, June 10, 2015. Finding that there is no per se rule against an accused presenting evidence of unlawful pretrial punishment as mitigation evidence during the sentencing phase of a court-martial – even after the accused receives judicial credit for the same unlawful punishment – CAAF nevertheless holds that the military judge did not abuse her discretion when she prevented the appellant from introducing such evidence to the members in this case.
Chief Judge Baker writes for the court, joined by all but Judge Stucky who writes separately, concurring in the result.
The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of one specification of indecent act in violation of Article 120(k) (2006). He was sentenced to confinement for six months, reduction to E-1, and a bad-conduct discharge. The Army CCA summarily affirmed.
Article 13, UCMJ, prohibits the imposition of punishment before trial. At trial, the appellant and the Government agreed that the appellant should receive 25 days of confinement credit for pretrial restriction that constituted unlawful pretrial punishment in violation of Article 13 (the appellant initially sought 45 days of credit). Then, during the sentencing phase of the court-martial, the appellant sought to call a witness “to testify about the pretrial violations” as a matter in mitigation possibly justifying a lesser adjudged sentence. Slip op. at 4. The trial counsel objected on relevance grounds and the military judge sustained the objection. The judge “specifically based her decision on existing case law discussing [Article 15] nonjudicial punishment which, according to the military judge, is analogous to [Article 13] and should be interpreted to mean that defense counsel ‘has an option as to how to present that evidence; one of four ways.'” Slip op. at 4-5.
CAAF granted review to determine whether that ruling was error, with the following issue:
Whether the military judge abused her discretion by preventing defense counsel from presenting facts of appellant’s unlawful pretrial punishment as mitigation evidence at sentencing.
Chief Judge Baker finds that Article 13 “is distinct from NJP credit and should not be treated in the same way.” Slip op. at 9. He further finds that allowing an accused to receive credit from a judge for a violation of Article 13 while also using the underlying facts as evidence in mitigation “does not provide defense counsel two bites at the apple.” Slip op. at 12 (emphasis added). However, he comes to the puzzling conclusion that the military judge in this case did not abuse her discretion when she held the opposite: that allowing the defense to call the witness “was giving defense counsel ‘two bites at the apple.'” Slip op. at 12-13.