As Judge Ryan points out in her vigorous dissent that the magistrate did not have evidence addressing whether (1) the appellant had actually received child pornography from the website via email or otherwise that might be on said computer, (2) the appellant’s laptop was the computer that received emails from or was used to access the illicit website, or (3) the location of the appellant’s government issued laptop that the agents were seeking when they requested authorization to search his quarters at Camp Arifjan.  Essentially, Judge Ryan is taking her dissent in Macomber, that CAAFlog characterized, here, as “a highly case-specific dissent,” and making a federal case out of it . . . so to speak. 

Given the criticism (by the defense bar and dissenting judges, of course) that has been heaped on two of the cases cited by the majority, United States v. Gourde, 440 F.3d 1065 (9th Cir. 2006) (en banc) and United States v. Martin, 426 F.3d 68  (2d Cir. 2005), Judge Ryan’s dissent makes this case particularly attractive for cert. watchers.

The issues Hennis has raised before this court may be plausible defenses at the court martial, as well as, appealable issues if the outcome ends in a conviction.  Attempting to resolve any of these questions would be inappropriate at this time with a court martial in progress.  Therefore, as the circumstances are set out, this court, like that in Councilman, “discerns nothing that outweighs the strong considerations favoring exhaustion of remedies or that warrants intruding on the integrity of the military court processes.”

Opening statements in the court-martial are today, see latest here.

Speaking of judges, the Navy and Marine Corps held a judicial screening board several weeks ago.  Although I did not have a package before the board, I know a few that did.  But no board results.  I assume that the JAG has to approve them.  Perhaps there is a secret vote in Reno this week.   In any event, we should get those results soon.  Good luck to those that applied.  This may be one of the first boards where a significant number of the Navy’s military justice litigation career track folks applied.  It should be interesting to see who is picked.

The NYT piece focuses on federal sentencing in the wake of the Booker decision making the USSG advisory rather than mandatory, thus giving judges discretion to consider factors like Veteran status.  The article also discusses the recent growth in Veterans’ courts, in this instance meaning courts that deal with offenses committed by vets, that now exist in at least 22 jurisdictions, according to Dahlia Lithwick’s recent article in Newsweek, here.  Most have a stated purpose much like the Alaska Veterans’ Court to:

[P]revent veterans charged with misdemeanors from falling into a life of crime. Rather than arresting and jailing veteran offenders for a few days or weeks only to return them to the same type of life, this court connects veterans to VA resources.

According to the Philadelphia Inquirer, here, the newest of the courts, the Philadelphia Veterans’ Court just opened on March 3, 2010 to a docket of 12-15 vets.  Here is a link to a collection of articles, pro and con, on these new courts.

From our friends in the U.K. Navy, this story about a court-martial of three Royal Navy officers for neglect when they ran their nuclear powered submarine headlong into a “pinnacle” in the Red Sea.

From the Sri Lankan Army, here, the continuing saga of the former Army Chief of Staff, brought out of retirement to face court martial for allegedly campaigning for President while in uniform and making irregular purchases as the head of the Army. Not surprisingly he lost election and the current administration, headed by his former civilian boss, has brought the charges. General Fonseka has moved to dissolve the court-martial. He said the court martial was “‘biased’ as it comprises two Generals, who were disciplined by him while in service and the third was a close relative of the current Army Chief.”. The court martial is closed to the public.

This week at CAAF:  CAAF has no oral arguments scheduled this week.

This week at the CCAs:  NMCCA will hear oral argument in two cases this week.  The issues in United States v. Hutchins, to be orally argued before an en banc court tomorrow, are:

I. WHETHER THE ABSENCE OF CAPTAIN BASS, USMC, AT TRIAL RESULTED FROM:

     A. HIS EXCUSAL WITH THE APPELLANT’S EXPRESS CONSENT,

     B. HIS APPLICATION FOR WITHDRAWAL RULED UPON BY THE MILITARY JUDGE FOR GOOD CAUSE SHOWN,

     C. OTHER GOOD CAUSE SHOWN ON THE RECORD, OR

     D. SOME OTHER MECHANISM TO INCLUDE, BUT NOT LIMITED TO, IMPROPER/IRREGULAR WITHDRAWAL OF COUNSEL (See United States v. Acton, 38 M.J. 330, 337 (C.M.A. 1995)), OR INEFFECTIVE ASSISTANCE OF COUNSEL?

II. IF CAPT BASS’ ABSENCE FROM TRIAL STEMMED FROM OR THROUGH SOME MECHANISM OTHER THAN (A) – (C) ABOVE, MAY THIS COURT TEST THE RAMIFICATIONS OF HIS ABSENCE FOR PREJUDICE? IF SO, HOW?

The issues to be argued in United States v. Warner on Wednesday are:

I. WHETHER APPELLANT’S CONVICTION TO ATTEMPTED MURDER IS FACTUALLY AND LEGALLY INSUFFICIENT DUE TO THE ALLEGED OVERT ACTS BEING MERELY PREPATORY IN NATURE AND NOT SUBSTANTIAL STEPS TOWARD COMMISSION OF THE OFFENSE.

III. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY PERMITTING IMPERMISSIBLE MRE 404(b) PROPENSITY EVIDENCE TO BE PRESENTED TO THE MEMBERS.

On Tuesday, ACCA will hear oral argument in United States v. Johnson, No. 20081165, where the issue is:

WHETHER THERE IS A SUBSTANTIAL BASIS IN LAW AND FACT TO QUESTION APPELLANT’S PLEA TO POSSESSION OF CHILD PORNOGRAPHY IN VIOLATION OF 18 U.S.C. § 2252A(a)(5)(B) WHERE DURING APPELLANT’S GUILTY PLEA (1) THE MILITARY JUDGE ADVISED APPELLANT OF AND ENGAGED IN A COLLOQUY WITH APPELLANT CONCERNING THE ELEMENTS FOR 18 U.S.C. 2252A(a)(5)(A); (2) APPELLANT AFFIRMATIVELY DISCLAIMED HIS CONDUCT AS PREJUDICIAL TO GOOD ORDER AND DISCIPLINE UNDER CLAUSE 1, ARTICLE 134, UCMJ; AND (3) THE ONLY FACTUAL PREDICATE FOR CLAUSE 2, ARTICLE 134, UCMJ IS APPELLANT’S STATEMENT THAT HIS CONDUCT WAS SERVICE-DISCREDITING BECAUSE “IT PUTS A BAD LIGHT ON EVERYBODY IN MY UNIT, YOUR HONOR.”

This week at CAAFlog:  I’m hitting the road tomorrow and will have very limited access to the Internet until Saturday.  So expect to hear nothing from me but a whole lot from my CAAFlog colleagues this week.

Interestingly, Ross’s appeal was filed at NMCCA without raising a Walters (or any other) issue.  NMCCA specified the issue and then, in this opinion, affirmed.  United States v. Ross, No. NMCCA 200800313 (N-M. Ct. Crim. App. Dec. 4, 2008) (per curiam).  NMCCA reasoned that because the possession was a continuing offense, the “on divers occasions” language was mere surplusage so striking it didn’t render the findings ambiguous.  CAAF disagreed, explaining that “there was possession of distinct sets of images on three different media.  While the military judge may have deemed the possession ‘continuing’ and deleted the words ‘on divers occasions’ as surplusage,” that isn’t necessarily the reason for those words’ exception.  Ross, slip op. at 8.  Possession, CAAF observed, “though a cotinuing offense — may still be appropriately charged ‘on divers occasions.’”  Id.

Here’s the part of Ross that I particularly like.  Ross provides guidance for how a finding of guilty may be affirmed in some future case despite an unexplained exception of “on divers occasions” language from a finding:  “the Government could nevertheless prevail were we to conclude that the evidence was legally insufficient to show that Appellant was guilty” with respect to all but one potential basis for conviction.  Where the finding as excepted could have only one potential basis, then the verdict would not be ambiguous.  That reasoning, however, doesn’t apply in this case becasue there could have been a legally sufficient basis for a finding of guilty on more than one theory.

Citing last month’s decision in United States v. Trew, 68 M.J. 364 (C.A.A.F. 2010), CAAF notes that the remedy here is to set aside the findings and the sentence and dismiss the charge and its spec with prejudice.

Ross will likely define the battleground in future Walters-type cases.  The issue will become whether all but one potential basis for conviction would be legally insufficient.  Another issue likely to be contested in future cases is whether that analysis applies only in a judge-alone case like Ross–where the fact finder is presumed to know and apply the law–or whether it applies in members cases as well.

At least one other attendee and I were both rather surprised at the relative absence of the service appellate shops from the conference.  Considering the line up at the CAAF Conference, that was surprising.  While The Honorable Jeh Johnson and Togo West were not speaking on how to have your petition accepted by the CAAF judges, there talks were relevant and topical for judge advocate and, generally, military lawyer professional development.  Further, I thought the talk by CAPT Crawford (Legal Counsel to the CJCS) that focused on detainee and similar issues was very thoughtful and something that, at a minimum,  judge advocates involved in the military commission process would find helpful.   Two of the five other speakers today were wheelhouse speakers for military law litigators, Judge McAuliffe on persuasive advocacy and Professor Donohue on the State Secrets Doctrine. 

As for the actual presentations, the best line of the day came from Mr. Johnson who said that leading by example in a nation of laws meant playing by the rules when the going is easy and when it is hard.   I had to chuckle though when Mr. Johnson alluded to the tanker competition as another one of the issues on his plate, in light of recent developments. 

If I have more time later I’ll update this with more from the first half of the day.  Maybe Mizer can give you an update on the second half of the day

II.  THE EVIDENCE IS LEGALLY AND FACTUALLY INSUFFICIENT TO SUPPORT A FINDING THAT APPELLANT COMMITTED ANY OF THE ACTS FOR WHICH HE STANDS CONVICTED

III.  THE MILITARY JUDGE COMMITTED LEGAL ERROR WHEN SHE IMPROPERLY ADMITTED THE ONLY EVIDENCE PURPORTEDLY TYING APPELLANT TO THE SCENE OF THE CRIME

CAAF explains that it “granted review to consider whether the military judge committed plain error by not sua sponte declaring that the offenses of receiving and possessing the same child pornography were multiplicious.”  Id., slip op. at 2. 

NMCCA had held that because the offenses weren’t facially duplicative, the multiplicity challenge was waived by the accused’s unconditional guilty pleas.  CAAF agreed, applying its decision in United States v. Campbell, 68 M.J. 217 (C.A.A.F. 2009). 

So just as we must await a case in which a TC actually attacks the qualifications of a government-selected substitute expert before getting an answer to one of the granted issues in Anderson, we must await a case in which the issue is properly preserved to know whether multiple charges for possessing the same image of child pornography on multiple media are multiplicious.  [Please note that this observation isn't meant to be critical; the development of the law depends on properly preserved issues being advocated by parties with a stake in the outcome.  I'm simply noting that those issues are still unresolved.]

h/t:  Phil Cave’s Court-Martial Trial Practice blog

CAAF ordered that no briefs will be filed.  My guess is that means that Thornton’s outcome will be affected by the pending case of United States v. Roach, No. 07-0870/AF.

[Disclosure:  I'm an appellate defense counsel in both Thornton and Roach.]

(a) The Contractor shall report to the appropriate investigative authorities any alleged offenses under–

(1) The Uniform Code of Military Justice (chapter 47 of title 10, United States Code) (applicable to contractors serving with or accompanying an armed force in the field during a declared war or a contingency operation); or

(2) The Military Extraterritorial Jurisdiction Act (chapter 212 of title 18, United States Code).

DoD’s broad interpretation of the UCMJ as it applies to civilians “in the field” under Art. 2(a)(10), to mean “a military operation with a view toward the enemy(purpose), not [a] locality,” makes this clause astoundingly broad.  Also, because the clause lacks a definition of contractor, the letter cites United States v. Serianne, No. 200900330, __ M.J. __ (N-M Ct. Crim. App. Nov. 25, 2009) (FYI, I added the cite) to highlight the potential self incrimination issues in the regulation.  See our prior Serianne posts here and here–among others.  Just something those military justice buffs in Iraq and Afghanistan might want to think about.

Update:  For JO’C’s benefit, here is a link to a summary (at pg. 5) of the Bob Reed “in the field” definition, one also included in a CAAF Conference presentation a few years back, see post here.

A group that includes leading conservative lawyers and policy experts , former Independent Counsel Kenneth Starr and several senior officials of the last Bush administration [No Man: including Cully Stimson] is denouncing as “shameful” Republican attacks on lawyers who came to the Obama Justice Department after representing suspected terrorists.

I can’t say for sure, but I would guess that means 100% CAAFlog contributor disagreement with Keep America Safe’s statements on pro bono counsel. But, I’ll wait to hear from our other contributors.

Update:  Here is a link to the letter, or the text of it, I can’t quite tell.  Here is a good quote form the letter:

To suggest that the Justice Department should not employ talented lawyers who have advocated on behalf of detainees maligns the patriotism of people who have taken honorable positions on contested questions and demands a uniformity of background and view in government service from which no administration would benefit.