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.

A spokesman for Keep America Safe, Aaron Harison, has now drawn a distinction between pro bono counsel and judge advocates who represented Gitmo detainees in military commission hearings, as reported by the Main Justice blog here.

As a former Chief Defense Counsel of the Office of Military Commissions, I’m sorry that Mr. Harison separated me from the pro bono lawyers.  I proudly stand with them against Keep America Safe’s demagoguery.

This week at the Supremes:  I’m not aware of any anticipated military justice developments at the Supremes this week, though we continue to await the SG’s response to the Loving cert petition.

This week at CAAF:  CAAF will hold its judicial conference on Wednesday and Thursday.  The schedule is available here.  A registration form is available here.  Several CAAFlog contributors will be attending; perhaps we can do some live blogging from the conference.

This week at the CCAs:  On Tuesday, the Coast Guard Court will hear oral argument in United States v. Sapp, in which the assigned error is:

I. This Court Should Consider the Unreasonable and Unexplained Post-Trial Delay in Determining the Sentence that Should be Approved under Article 66(c) with particular attention to the following questions:
1. What circumstances short of denial of due process should be considered in deciding whether post-trial delay warrants “Tardif relief”?
2. What are the reasons to grant or deny “Tardif relief” in this case?

The Army Court’s web site is down, so I can’t determine whether ACCA is scheduled to hear any oral arguments this week.

The very people who can sign off and make sure charges take place or go away are the very people who hand pick the jurors,” Gohmert said.  “There’s no random selection. You get the jurors that the people that sign off on the charges pick for you. …What we have seen too much in the military in recent years, it’s become very political.

With his statements only 3 weeks ago, here, about courts-martial in the context of the trials of 9-11 detainees:

The Army taught me that defendants in a military court do not have the same rights as defendants in a U.S. district court. No one screamed that our military should be tried only in a district court. That is because the military system was constitutionally created by Congress. Our Constitution anticipated a military with more discipline, less right to question, and more command control than a civilian workplace. Military members are afforded “constitutional rights,” but they’re different from civilians’.

And three months before that, here,

To say that these guys cannot get a fair trial is to say that anyone who is tried in a military court does not get a fair trial and that is simply not true. When I was at Fort Benning for four years, there were acquittals there. . . . Those were done under the same UCMJ [Uniform Code of Military Justice], so certainly they can get a fair trial . . .

Now that’s consistency.

And the Fayetteville Observer reports here that court-martial proceedings have ended for the week with a seventh member being seated.

I doubt I’ll have time to get into all of the nuance of the opinion tonight and I’m hitting the road on Sunday.  I’ll try to post more details before then, but welcome any of my CAAFlog colleagues to beat me to the punch.

[H]aving been in the Army 4 years, having been very familiar with the Uniform Code of Military Justice and the justice in the military, it is—people in the military do not have the same rights under the Constitution that everybody else does, even though it is constitutional because as the Supreme Court said, you have to have a system where under certain circumstances, people follow orders. 

. . . . 

They need to have a fair but separate system in order to protect us the way they have for over 200 years. 

So I really appreciate the efforts, but it is important to know what it will do to the discipline in the military. There doesn’t need to be this additional system in order to have fairness and constitutionality under the military that we need to protect us. 

Today, opposing prosecution of the SEALs, according to this CNN report, ”Gohmert said those who bring harm to Americans should not get the same judicial treatment as U.S. citizens.  ‘They get all their constitutional rights. Well, we’ve got heroes around who deserve the constitutional rights of an even better caliber. And yes, there are different levels of constitutional rights,’ he said.”  Has Rep. Gohmert’s view of the rights that should be accorded U.S. servicemembers tried by court-martial expanded?  An enemy combatant tried either in U.S. district court or by military commission would have a right to ultimately seek Supreme Court review of his conviction.  Such an enemy combatant would also have a right to appeal his conviction regardless of sentence.  Would Rep. Gohmert favor providing those protections to U.S. servicemembers tried by court-martial?

Here’s a link to an Orange County Register article about a news conference today in which Rep. Dana Rohrabacher (R-Cal.) and Rep. Dan Burton (R-Ind.) called for the charges in the SEALs cases to be dropped.

And here’s an interesting quotation that Rep. Burton made to Fox News:

Burton told Fox News Thursday that even if the SEALs are guilty of the charges, he doesn’t believe they should be court martialed.

“In fact, I said to the chairman of the Joints Chiefs of Staff if I had been one of the people who captured this guy, I would have broken both his legs,” he said. “This guy’s a terrorist and I don’t think he should be treated with kid gloves.”

5. Prohibit trial counsel from attacking the credentials of an expert witness if the government provided that specific expert to the defense as an adequate substitute for an expert consultant requested by the defense.

Under established precedent, if the convening authority or the military judge determines that the defense counsel is entitled to expert assistance for consultation and case preparation, thedefense is not entitled to consult with a specific expert.7   [7 United States v. Garries, 22 M.J. 288, 290-91 (C.M.A. 1986); United States v. Ndanyi, 45 M.J. 315, 319 (C.A.A.F. 1996).]  If the government can provide an adequate substitute who has the requisite expert credentials and qualifications, the defendant must either accept the substitute or waive the right to government-funded expert assistance.  Witnesses at the hearing informed the Commission of a practice sometimes engaged in by government counsel whereby the government provides the defense with substitute expert assistance for trial preparation and if that government-substituted expert testifies for the defense at trial, the government attacks the expert’s qualifications. We are troubled by a practice that allows the government to attack the credentials of the very expert that the government had previously offered to the defense as an adequate substitute for a defense-requested expert. The Commission recommends a change in the Rules for Court-Martial to prevent the government from attacking the credentials of an expert witness whom the government had previously made available to the defense as an adequate substitute for a defense-requested expert. This would not, of course, preclude the government from challenging the defense expert witness’s methodology or other aspects of the witness’s testimony.

Anderson was an Army Specialist who tried to provide military secrets to our nation’s enemies, including information about the vulnerabilities of U.S. military vehicles.  Fortunately, the recipients of that information were not Muslim extremists, as he believed, but rather a member of a group of concerned citizens trying to prevent terrorist attacks and, later, law enforcement agents.  Anderson was convicted of attempting to give intelligence to the enemy, two specs of attempting to communicate with the enemy, one spec of attempting to give aid to the enemy, and — in a gratuitous act of piling on that led to wholly unnecessary issues in this case — simple disorder in violation of Article 134, an offense that carries a maximum of 4 months’ confinement to go along with all of the other LWOP-authorized offenses. 

Anderson pleaded not guilty, was convicted, and sentenced to confinement for life (not LWOP) and a DD. 

One of the granted issues in the case was:

WAS APPELLANT AFFORDED A FAIR TRIAL EVEN THOUGH HIS REQUEST FOR A FORENSIC PSYCHIATRIST WAS DENIED AND THE GOVERNMENT THEREAFTER AVAILED ITSELF OF A FORENSIC PSYCHIATRIST AND ATTACKED THE QUALIFICATIONS OF THE VERY EXPERT IT DID MAKE AVAILABLE TO THE DEFENSE?

CAAF side-stepped that issue.  The defense had requested the services of a particular civilian clinical and forensic psychologist.  The CA denied the request.  The defense subsequently asked the military judge to overturn that denial.  The military judge declined to do so, finding no indication that Anderson lacked mental capacity or was unable to form specific intent.  The defense then successfully requested the assistance of a different clinical psychologist.

The Anderson case had generated some buzz in the military justice community because it presented an issue that was the subject of one of the Cox Commission II’s recommendations.  Anderson was understood (if you’ll excuse the passive voice) as presenting an estoppel-esque argument:  can the government deny a defense expert witness request, provide the defense with an inferior substitute, and then exploit the inferiority of the substitute’s credentials?  But CAAF doesn’t ultimately answer that question.

CAAF observes that the military judge “denied Appellant’s request that the Government be prevented from attacking Dr. Norris’s [the defense clinical psychologist's] credentials, holding that such cross-examination would be relevant if [he] strayed beyond the bounds of his expertise.”  But “[t]he Government’s cross-examination of Dr. Norris was quite limited.  While the Government did draw attention to the fact that he was a clinical and not a forensic psychologist — and therefore not an expert in the interface between the law and psychology — neither the accuracy of Dr. Norris’s psychological evaluation nor his qualification to make such an evaluation was called into question.”  The defense also presented Appellant’s treating psychiatrist.  A government forensic psychiatrist who testified on rebuttal characterized the defense mental health professionals’ opinions as “all reasonable considerations,” but explained why those considerations affected neither Anderson’s “intellectual functioning nor his ability to tell the difference between right and wrong.”  While the Government expert disagreed with portions of the treating psychiatrist’s testimony, he “did not comment on any of the assertions made by Dr. Norris,” the clinical psychologist.

CAAF doesn’t address whether the military judge erred when he denied the defense request to prevent the prosecution from attacking Dr. Norris’s credentials, though the opinion suggests that the Government’s effort to emphasize that Dr. Norris wasn’t a forensic psychologist didn’t matter.  Rather, CAAF focuses on whether the defense was prejudiced by the Government forensic psychiatrist’s testimony on rebuttal, holding that it wasn’t.  So the estoppel-esque argument that the Cox Commission II addressed in its report appears to remain undecided.

CAAF then enters into a multiplicity/unreasonable multiplication of charges/preemption analysis.  The most striking feature of this discussion is that it relies on a prong of the unreasonable multiplication of charges test about which CAAF expressed concern in Quiroz.  In Anderson, CAAF writes:  “Five factors should be considered when determining if multiple findings of guilt constitute an unreasonable multiplication of charges . . . (4) Does the number of charges and specifications unfairly increase the appellant’s punitive exposure?”  Anderson, slip op. at 18 (quoting United States v. Quiroz, 55 M.J. 334, 338 (C.A.A.F. 2001)) (emphasis in original).  But in Quiroz, CAAF remanded the case due to NMCCA’s use of the “unfairly increase” standard.  CAAF wrote: 

[W]e have reservations about the lower court’s reference to a factor addressing whether “the number of charges and specifications unfairly increase[s] the appellant’s punitive exposure.”  The term “unfairly” could be viewed as applying the factor under an equitable rather than a legal standard, in light of the lower court’s reference to its “equitable power” in its initial decision.  52 MJ at 513.  The factor may be used, however, so long as it addresses the question in terms of the legal issue as to whether the number of charges and specifications “unreasonably” increased appellant’s punitive exposure.

Quiroz, 55 M.J. at 338.  It appears that until today, no post-Quiroz CAAF opinion had used the “unfairly increase” standard.  Rather, CAAF evaluated whether the charges and specs “unreasonably increase the appellant’s punitive exposure.”  See, e.g., United States v. Paxton, 64 M.J. 484, 491 (C.A.A.F. 2007).  Anderson introduces some uncertainty as to how the unreasonable multiplication of charges test should be framed going forward.

HR 4738 (McKeon, R-CA), to prohibit the use of Department of Defense military installations in the United States, its territories, or possessions for the prosecution of individuals involved in the 9/11/01 terrorist attacks; to Armed Services. H1103, CR 3/3/10. . . .

The Emerging Threats and Capabilities Subcommittee, Senate Armed Services Committee, will hold a hearing on U.S. government efforts to counter violent extremism and the role of the U.S. military in those efforts. 3/10/10, 10 am, 222 Russell.

 I will link to the text of HR 4758 when the bill text is available.   Here is the Thomas page.

A military judge moved the trials of Keefe and Huertas to Camp Victory in Baghdad, a military base in Iraq, after defense attorneys asked that their clients be able to face their accusers. McCabe’s attorney, Neal Puckett, did not request that his client be able to face his accuser, thus McCabe’s trial will proceed in Norfolk, Va.

There is an event on Capitol Hill tonight in support of the SEALs, who reportedly have gathered 160,000 signatures on a petition asking for dismissal of the charges.  The event will include Reps. Burton and Rohrabacher SO2 McCabe, his attorney Neal Puckett, and “retired Navy SEAL Capt. Larry Bailey.”  CNSNews reports that the petitions will be sent to SecDef Gates and the convening authority, SOCCENT Commander, Maj. Gen. Charles T. Cleveland. 

No news on whether the trial of SO2 McCabe actually begins on Monday.  The Navy Region Mid-Atlantic docket still shows 2 cases (an E-5, presumably McCabe, and an E-6, presumably Huertas)  set for separate Art. 39a motion hearings on Monday, March 6 in scenic Courtroom 1 at Naval Station Norfolk.  So are they doing all the pre-trial work in Norfolk and just doing the trial in Iraq?

Judge Baker wrote for a unanimous court.

Anyone in the know able to share anything about the result?  AUSAs frequently told me about the MilJus system’s “problem” with child pornography and their desire to see stiffer courts-martial sentences for the offenses, but this seems an odd way to go about that.