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.

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Audio of today’s oral arguments at CAAF is available at the following links:

United States v. Castillo, No. 14-0724/NA (CAAFlog case page): Oral argument audio

United States v. Carter, No. 14-0792/AR (CAAFlog case page): Oral argument audio

CAAF will hear oral argument in the Army case of United States v. Carter, No. 14-0792/AR (CAAFlog case page), on Wednesday, February 11, 2015. The case returns CAAF to the issue of application of credit for unlawful pretrial punishment in the wake of United States v. Barnett, 71 M.J. 248 (C.A.A.F. 2012) (CAAFlog case page), 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.

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.

The parties briefs reveal that in advance of trial, the military judge granted Appellant 27 days of confinement credit: two days credit for pretrial confinement served and 25 days credit for unlawful pretrial punishment in violation of Article 13. The finding of pretrial punishment was based upon excessive restrictions placed on Appellant after he was released from pretrial confinement. After Appellant was convicted, the defense counsel attempted to call a witness to testify about the nature of the excessive restrictions as mitigation evidence during the sentencing phase of the court-martial. The Government objected and the military judge sustained the objection, ruling that Appellant should not be allowed to obtain judicial credit for pretrial punishment and then present that same punishment to the members as mitigation. The military judge reasoned:

Under U.S. v. Gammons, it appears as though defense counsel has an option as to how to present that evidence; one of four different ways. I believe that the defense counsel already chose how to present the evidence, and so, it would be inappropriate to allow them to have a second bite at the apple and get credit, as well as try to present it as mitigation.

App. Br. at 4 (citing record). CAAF’s review will determine if the military judge was right, and whether it was appropriate to allow Appellant to “have a second bite at the apple” for credit for the pretrial punishment.

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