Military justice blogs are to blogs
as military music is to music.
3 commentsAudio of today’s oral arguments at CAAF is available at the following links:
United States v. Mangahas, No. 17-0434/AF (CAAFlog case page): Oral argument audio.
United States v. Pugh, No. 17-0306/AF (CAAFlog case page): Oral argument audio.
Audio of today’s oral arguments at CAAF is available at the following links:
United States v. Jacobsen, No. 17-0408/AR (CAAFlog case page): Oral argument audio.
United States v. Guardado, No. 17-0183/AR (CAAFlog case page): Oral argument audio.
United States v. Hennis, No. 17-0263/AR (motion to compel funding) (CAAFlog case page): Oral argument audio.
In an unpublished opinion in a prosecution appeal under Article 62, a three-judge panel of the Army CCA finds that “when the government concedes an issue [of law] at trial and the military judge accepts the concession, then the government cannot complain to this court that the military judge erred.” United States v. Suarez, No. 20170366, slip op. at 7 (A. Ct. Crim. App. Sep 27, 2017) (link to slip op.).
At stake is the admission of six images of suspected child pornography discovered on the accused’s cell phone after it was searched pursuant to an authorization. The device was protected by a passcode and the investigators asked the accused for that passcode. So the defense moved to suppress. See, generally, United States v. Mitchell, 76 M.J. 413 (C.A.A.F. Aug. 30, 2017) (CAAFlog case page).
Responding to the defense motion, the prosecutors “conceded in their initial brief to the military judge that the accused’s providing a passcode to a CID agent was testimonial and incriminating.” Slip op. at 4. These were significant concessions, because “in conceding the passcode was incriminating, the government necessarily conceded the request for the incriminating response was an interrogation.” Slip op. at 5. And because it was an interrogation, the questioning implicated the accused’s rights under the 5th Amendment and Article 31(b). So the military judge suppressed the images.
The prosecution appealed, “mak[ing] numerous arguments as to why the military judge erred.” Slip op. at 3.
But the panel doesn’t consider those arguments. Rather, it holds that “the substantive issue of this appeal was waived by the government at trial.” Slip op. at 8.
This week at SCOTUS: A petition for certiorari was filed in Tso v. United States, No. 17-479, on September 28, 2017. On May 17, 2017, CAAF summarily affirmed the NMCCA’s decision in Tso in light of its decisions in United States v. McClour, 76 M.J. 23 (C.A.A.F. 2017) (CAAFlog case page), and United States v. Bartee, 76 M.J.141 (C.A.A.F. 2017) (CAAFlog case page). I noted CAAF’s grant of review in this post.
I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking six cases:
This week at CAAF: CAAF will hear the first oral arguments of the 2017 term this week, on Tuesday and Wednesday. The court will hear oral argument in four cases and on one motion:
Tuesday, October 10, 2017, at 9:30 a.m.
United States v. Jacobsen, No. 17-0408/AR (CAAFlog case page)
Issue: Whether the trial counsel’s certification that evidence is “substantial proof of a fact material in the proceeding” is conclusive for purposes of establishing appellate jurisdiction under Article 62(a)(1)(b), Uniform Code of Military Justice.
Case Links:
• ACCA Order (Feb. 6, 2017) (CAAFlog link)
• ACCA Order (Mar. 16, 2017) (CAAFlog link)
• Appellant’s (Army Gov’t Appellate Div.) brief
• Appellee’s (Jacobsen) brief
• Appellant’s reply brief
• Amicus brief in support of Appellant (A.F. Gov’t App. Div.)
• Blog post: Argument preview
Followed by:
United States v. Guardado, No. 17-0183/AR (CAAFlog case page)
Issues:
I. Whether the Army court incorrectly found that the military judge’s panel instructions were harmless error in light of United States v. Hills.
II. Whether the Army court incorrectly ruled that an offense defined by the President cannot preempt a general Article 134, UCMJ, offense, and that preemption is not jurisdictional in such circumstances.
Case Links:
• ACCA opinion (75 M.J. 889)
• Blog post: The Army CCA dissects Hills
• Blog post: CAAF to review the Army CCA’s decision in Guardado
• Appellant’s brief
• Appellee’s (Army Gov’t App. Div.) brief
• Appellant’s reply brief
• Blog post: Argument preview
Followed by:
United States v. Hennis, No. 17-0263/AR (motion to compel funding) (CAAFlog case page)
Case Links:
• Defense motion
• Government Division answer
• Government Division response to CAAF order
• Blog post: Argument preview
Wednesday, October 11, 2017, at 9:30 a.m.
United States v. Mangahas, No. 17-0434/AF (CAAFlog case page)
Issue: Whether the lower court erred in finding no due process violation when the Government was inactive for over 17 years before investigating a claim of rape, violating LtCol Mangahas’ Fifth Amendment right to a speedy trial.
Case Links:
• AFCCA opinion
• Blog post: Air Force CCA opinion analysis
• Bog post: CAAF grants
• Appellant’s brief
• Appellee’s (A.F. App. Gov’t Div.) answer
• Appellant’s reply brief
• Blog post: Argument preview
Followed by:
United States v. Pugh, No. 17-0306/AF (CAAFlog case page)
Issue: Whether the military judge erred in finding that AFI 90-507 serves no valid military purpose and dismissing the additional charge and its specification.
Case Links:
• AFCCA opinion
• Blog post: CAAF grants review of post-trial Article 62 appeal
• Appellant’s brief
• Appellee’s (A.F. App. Gov’t Div.) answer
• Appellant’s reply brief
• Blog post: Argument preview
This week at the ACCA: The next scheduled oral argument at the Army CCA is on October 30, 2017.
This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on October 24, 2017. The argument will be heard at the Florida International University College of Law.
This week at the CGCCA: The Coast Guard CCA has a new website, but the link to its docket doesn’t work.
This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.
Story here.
Army Sgt. Bowe Bergdahl is expected to plead guilty soon to desertion and misbehavior before the enemy rather than face trial for leaving his Afghanistan post.
That’s according to two individuals with knowledge of the case.
They tell The Associated Press that Bergdahl will submit the plea later this month and sentencing will start Oct. 23. The individuals weren’t authorized to discuss the case and demanded anonymity.
Two months ago I noted that Bergdahl elected trial by a military judge alone, and I commented that the choice was a “preface to a guilty plea.”
Thanks to our reader for the tip.
Congress created Article 6b in the National Defense Authorization Act for Fiscal Year 2014. As originally enacted, the statute had four sections (paragraphs (a-d)), the first of which outlined eight rights of a victim. The next year, in the National Defense Authorization Act for Fiscal Year 2015, Congress made some technical changes and added a fifth section – paragraph (e) – providing an enforcement mechanism. The following year, in the National Defense Authorization Act for Fiscal Year 2016, Congress expanded that enforcement mechanism, so that it now reads:
(e) Enforcement by Court of Criminal Appeals.
(1) If the victim of an offense under this chapter believes that a preliminary hearing ruling under section 832 of this title (article 32) [10 USCS § 832] or a court-martial ruling violates the rights of the victim afforded by a section (article) or rule specified in paragraph (4), the victim may petition the Court of Criminal Appeals for a writ of mandamus to require the preliminary hearing officer or the court-martial to comply with the section (article) or rule.
(2) If the victim of an offense under this chapter is subject to an order to submit to a deposition, notwithstanding the availability of the victim to testify at the court-martial trying the accused for the offense, the victim may petition the Court of Criminal Appeals for a writ of mandamus to quash such order.
(3) A petition for a writ of mandamus described in this subsection shall be forwarded directly to the Court of Criminal Appeals, by such means as may be prescribed by the President, and, to the extent practicable, shall have priority over all other proceedings before the court.
(4) Paragraph (1) applies with respect to the protections afforded by the following:
(A) This section (article).
(B) Section 832 (article 32) of this title [10 USCS § 832].
(C) Military Rule of Evidence 412, relating to the admission of evidence regarding a victim’s sexual background.
(D) Military Rule of Evidence 513, relating to the psychotherapist-patient privilege.
(E) Military Rule of Evidence 514, relating to the victim advocate-victim privilege.
(F) Military Rule of Evidence 615, relating to the exclusion of witnesses.
This is a limited grant of authority that gives only a CCA – and not CAAF – jurisdiction over victim petitions. See Randolph v. HV and United States, 76 M.J. 27 (C.A.A.F. Feb. 2, 2017) (CAAFlog case page).
A three-judge panel of the Army CCA recently rejected a petition that went way beyond the limits of Article 6b(e).
In AG v. Hargis, Military Judge, __ M.J. __, No. 20170417 (A. Ct. Crim. App. Aug. 16, 2017) (link to slip op.), Judge Fleming writes for the panel and holds that:
petitioner, an alleged sexual assault victim, fails to establish that a referred court-martial, or even preferred charges, existed at the time of the military judge’s decision to take no action on a special victim counsel’s [hereinafter SVC] discovery and production request. We further hold the military judge did not err by advising the military magistrate to deny the SVC’s discovery request or by not acting on the SVC request, which created a de facto ruling denying the SVC’s discovery and production request. We, therefore, dismiss the petition for lack of jurisdiction.
Slip op. at 1 (marks in original).
CAAF will end its first week of oral arguments in the 2017 term on Wednesday, October 11, 2017, when it hears argument in the interlocutory Air Force case of United States v. Pugh, No. 17-0306/AF (CAAFlog case page). Pugh is a particularly interesting case because it is an interlocutory appeal of a ruling dismissing a charge after the members returned findings of guilty and a sentence. CAAF granted review of a single issue:
Whether the military judge erred in finding that AFI 90-507 serves no valid military purpose and dismissing the additional charge and its specification.
A general court-martial composed of officer members convicted Major Pugh of:
willful dereliction of duty in violation of Article 92, UCMJ, 10 U.S.C. § 892, by consuming Strong and Kind bars, a product containing hemp seeds, which is prohibited by AFI 90-507.
United States v. Pugh, No. 2016-11, slip op. at 2 (Mar. 10, 2017) (discussed here). AFI 90-507 is the Military Drug Demand Reduction Program order. It prohibits, among other things, consumption of any product containing hemp seed or hemp seed oil.
Defense counsel moved to dismiss after findings, arguing that the specification failed to state an offense and that the order was unlawful. The military judge reserved ruling. The members then sentenced Pugh to a dismissal and the court-martial was adjourned. Nineteen days later the military judge granted the motion to dismiss, concluding that “there is not a sufficient nexus between military necessity and the duty AFI 90-507 seeks to impose. The regulation is overly broad and serves no valid military purpose.” Slip op. at 3.
The prosecution appealed and the Air Force CCA reversed, finding that “it was error for the military judge to conclude that there was an insufficient nexus between the military duty and the integrity and effectiveness of the drug testing program.” Slip op. at 6. Pugh then petitioned CAAF for review.
Pugh’s reply brief include this nice summary of the issue:
The parties agree that the military duty in question is the necessity to protect the reliability and integrity of the drug testing program. App. Br. at 6; Govt. Br. at 20. Thus, the question for this Court is whether banning legally available commercial food products sold in the United States is reasonably necessary to protect the reliability and integrity of the drug testing program. See Para. 14c(2)(a), Part IV, MCM (2012 ed.) (regulation of activities reasonably necessary to accomplish a military mission) (emphasis added).
Reply. Br. at 6.
CAAF will hear oral argument in the interlocutory Air Force case of United States v. Mangahas, No. 17-0434/AF (CAAFlog case page), on Wednesday, October 11, 2017, at 9:30 a.m. Mangahas is a lieutenant colonel in the Air Force charged with a single specification of rape alleged to have occurred in 1997, when Mangahas was a cadet at the Coast Guard Academy. The alleged victim was a fellow cadet who reported her allegation at the time but did not participate in an investigation. However, she made a new report in 2014 (to the Department of Veterans Affairs), a new investigation was initiated, and the charge was preferred in October 2015; eighteen years after the alleged offense.
The passage of so much time prompted a defense motion to dismiss based on violation of Mangahas’ Fifth Amendment (due process) right to a speedy trial. The Due Process Clause of the Fifth Amendment applies to egregious or intentional tactical pretrial delay by the prosecution where there is actual prejudice to the accused. See United States v. Reed, 41 M.J. 449, 452 (C.A.A.F. 1995). This is a difficult burden for an accused to meet.
A military judge, however, found both: egregious delay in the nearly two decades between the time the alleged victim made a report and the time Mangahas was brought to trial, and prejudice in the death of a Coast Guard Academy counselor – identified by the initials PM – who the alleged victim claims discouraged her from participating in the investigation back in 1997. Then, because this violated the Due Process Clause, the military judge dismissed the charge with prejudice (meaning Mangahas may never be tried).
The prosecution appealed and a three-judge panel of the Air Force CCA reversed, finding that “the actual substance of what PM’s trial testimony would be is speculative,” and that “even assuming that PM were to directly rebut [the alleged victim], the absence of that testimony, as discussed above, does not deny Appellee the ability to mount an effective defense.” United States v. Mangahas, Misc. Dkt. No. 2016-10, slip op at 11-12 (A.F. Ct. Crim. App. Ap. 4., 2017) (discussed here). Mangahas then appealed to CAAF, and the court granted review of a single issue:
Whether the lower court erred in finding no due process violation when the Government was inactive for over 17 years before investigating a claim of rape, violating LtCol Mangahas’ Fifth Amendment right to a speedy trial.
CAAF will hear an unusual argument on Tuesday, October 10, 2017, it’s first day of oral arguments in the term. Military appellate defense counsel representing Master Sergeant (E-8) Hennis – whose conviction and capital sentence were our #2 military justice story of 2010 – will go up against military counsel for the Army Government Appellate Division to argue a “Consolidated motion to compel funding for learned counsel, a mitigation specialist, and a fact investigator; for appointment of appellate team members; and for a stay of proceedings.”
It’s not the first time CAAF has heard oral argument on a motion, but I believe that it is the first such oral argument this century.
The motion asks CAAF to:
order the government to provide funding and contract for learned appellate counsel, a capital mitigation specialist, and a fact investigator. Further, appellant requests this Court order the government to provide defense team members deemed necessary in accordance with AR 27-10. Finally, appellant requests oral argument and a stay of proceedings pending receipt of required resources pursuant to C.A.A.F. R. 33 and 40.
Mot. at 1-2.
CAAF’s will hear oral argument in United States v. Guardado, No. 17-0183/AR (CAAFlog case page), on Tuesday, October 10, 2017, after the argument in Jacobsen. The court granted review of two issues but requested briefing on only the first, which challenges the Army CCA’s published decision that identified five factors to consider when determining if an appellant was prejudiced by the improper use of charged offenses for propensity purposes:
I. Whether the Army court incorrectly found that the military judge’s panel instructions were harmless error in light of United States v. Hills.
II. Whether the Army court incorrectly ruled that an offense defined by the President cannot preempt a general article 134, UCMJ, offense, and that preemption is not jurisdictional in such circumstances.
In a published decision in United States v. Guardado, 75 M.J. 889 (A. Ct. Crim. App. Nov. 15, 2016) (analyzed here), a three-judge panel of the Army CCA dissected CAAF’s blockbuster opinion in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page). Concluding that the Hills decision should be applied broadly, the panel nevertheless found that the improper use of charged sexual offenses as evidence of Guardado’s propensity to commit the same charged sexual offenses – in a trial before members – was harmless based on five factors:
First, we note the CAAF has previously found instructions that included propensity stemming from charged offenses to be harmless error. Schroder, 65 M.J. at 56-57. . . .
Second, we believe the intertwined nature of the conduct in Hills was central to the court’s assessment of prejudice. . . .
Third, when we look at a specification-by-specification analysis, we are unable to find prejudice to appellant when he was convicted of only one offense. . . . when the panel acquitted appellant of the three other specifications of sexual assault, any violation of the presumption of innocence as to those specifications resulted in no prejudice. . . .
Fourth, we are convinced beyond a reasonable doubt that even if no propensity instruction had been given, the results in this trial would have been the same. . . .
Finally, but least importantly, we find, to the extent that the military judge’s instructions were confusing, any confusion in this case was harmless. . . .
75 M.J. at 897-898. Unfortunately, these five factors are barely referenced in the briefs filed in advance of next week’s argument. Rather, both sides offer a narrow view of the facts of the case, and mostly ignore the larger question of the appropriate framework to analyze a Hills error.
CAAF will hear the first oral argument of the 2017 term on Tuesday, October 10, 2017, at 9:30 a.m., in the certified Army case of United States v. Jacobsen, No. 17-0408/AR (CAAFlog case page). A single issue challenges the Army CCA’s rejection of an interlocutory prosecution appeal under Article 62, UCMJ:
Whether the trial counsel’s certification that evidence is “substantial proof of a fact material in the proceeding” is conclusive for purposes of establishing appellate jurisdiction under Article 62(a)(1)(b), Uniform Code of Military Justice.
The case is a general court-martial involving an alleged sexual offense. Sergeant First Class (E-7) Jacobsen is the accused, and his defense includes a focus on the alleged victim’s lack of credibility. Jacobsen’s defense counsel gave an opening statement that promised the members that “over the course of this trial you’re going to hear that [the alleged victim] has told five different stories about what happened on that couch on the evening of Valentine’s Day of this year going into the 15th of February.” Gov’t Div. Br. at 2. Then, on cross-examination of the alleged victim, the defense elicited evidence of numerous prior inconsistent statements about the alleged offense. In response, the prosecution:
sought to call a CID special agent to testify to the victim’s prior consistent statements under Mil. R. Evid. 801(d)(1)(B)(ii). The defense objected.
The military judge ruled that M.R.E. 801(d)(1)(B)(ii) does not apply in this case and that the Government could not admit the victim’s CID statement as rehabilitation evidence. The Government appealed his decision under Article 62, UCMJ.
Gov’t Div. Br. at 3 (citations to record omitted). Mil. R. Evid. 801(d)(1)(B) is part of the hearsay rule and is identical to Fed. R. Evid. 801(d)(1)(B). The federal rule was amended in 2014 in a way that makes any prior consistent statements of a witness non-hearsay, so long as the prior statement is otherwise admissible for rehabilitation (discussed here). The amendment was incorporated into the MCM in 2016 (noted here). The amendment did not, however, change what statements are otherwise admissible to rehabilitate a witness. See Fed. R. Evid. 801 advisory committee note to the 2014 amendment. See also United States v. Adams, 63 M.J. 691, 696-97 (A. Ct. Crim. App. 2006) (discussing circumstances when prior consistent statements are relevant).
Article 62 authorizes a prosecution appeal under certain, limited circumstances. One of them is of “an order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding.” Article 62(a)(1)(B). Based on this authorization, the prosecution appealed the military judge’s ruling that prohibited the CID agent from testifying about the alleged victim’s prior statements.
But the Army CCA did not address the admissibility of the CID agent’s testimony. Rather, it rejected the prosecution’s appeal as unauthorized under Article 62. In a short order the CCA dismissed the appeal, concluding:
Contrary to appellant’s claim, the military judge did not issue “[a]n order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding.” UCMJ art. 62(a)(l)(B) (emphasis added). Although Congress intended to provide military prosecutors, to the extent practicable, with the same rights of appeal afforded to federal civilian prosecutors in 18 U.S.C. § 3731 (i.e., the right to appeal trial rulings dismissing charges or excluding substantive evidence), the jurisdictional language codified by Congress in Article 62, UCMJ, differs from 18 U.S.C. § 3731. See United States v. Lopez de Victoria, 66 M.J. 67, 68-71 (C.A.A.F. 2008) (explaining the general intent of Congress in enacting Article 62, UCMJ).
Specifically, the plain language of 18 U.S.C. § 3731 confers appellate jurisdiction over trial orders suppressing evidence, only conditioned upon timely certification from the United States attorney. United States v. Grace, 526 F.3d 499, 505-06 (9th Cir. 2008) (en banc). In contrast, the plain language of Article 62(a)(1), UCMJ, confers appellate jurisdiction for orders or rulings that actually meet specified criteria.
United States v. Jacobsen, No. 20160768, slip op. at 1 (A. Ct. Crim. App. Feb. 6, 2017) (order) (marks in original) (discussed here). The Government Appellate Division sought reconsideration and the CCA reached the same conclusion on March 16, 2017, again highlighting the different language of the civil and military statutes.
The JAG then certified the case to CAAF to determine whether a CCA may determine that a prosecution appeal does not meet the Article 62 criteria despite a trial counsel’s certification that it does.
Job posting available here. Position is a GS 12. Looks perfect for a transitioning legal community SNCO. Application deadline is Friday.
In Lewis v. United States, __ M.J. __, No. 2017-05 (A.F. Ct. Crim. App. Sep. 20, 2017) (link to slip op.), Senior Judge Johnson writes for a three-judge panel of the Air Force CCA and denies a petition for extraordinary relief in the nature of a writ of coram nobis.
The petition is based on CAAF’s decision in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page), holding that charged offenses may not be used for propensity purposes under Mil. R. Evid. 413. The petitioner was convicted of numerous sexual offenses at a general court-martial during which the military judge allowed charged offenses to be used for propensity purposes, and the Air Force CCA affirmed the convictions in 2014. United States v. Lewis, No. 38321 (A.F. Ct. Crim. App. 9 Oct. 2014) (link to slip op.), pet. denied, 74 M.J. 263 (C.A.A.F. 2015). The extraordinary relief petition seeks retroactive application of Hills to the case.
The approved sentence, however, included confinement for nine years and the petitioner is still confined, creating a significant hurdle to coram nobis relief. There are six threshold requirements for a coram nobis petition:
(1) the alleged error is of the most fundamental character;
(2) no remedy other than coram nobis is available to rectify the consequences of the error;
(3) valid reasons exist for not seeking relief earlier;
(4) the new information presented in the petition could not have been discovered through the exercise of reasonable diligence prior to the original judgment;
(5) the writ does not seek to reevaluate previously considered evidence or legal issues; and
(6) the sentence has been served, but the consequences of the erroneous conviction persist.
Slip op. at 4-5 (citing United States v. Denedo, 66 M.J. at 113, 126 (C.A.A.F. 2008), aff’d, 556 U.S. 904 (2009)) (paragraphing added). Senior Judge Johnson explains that the second and sixth requirements aren’t satisfied in this case:
Petitioner remains in confinement; therefore, coram nobis is not the sole remedy available to him because he is eligible to seek a writ of habeas corpus from a federal district court. Similarly, Petitioner has failed to demonstrate his sentence to nine years of confinement has been served.
Slip op. at 5.
But Senior Judge Johnson also considers the underlying error, concluding that the “petition would fail on the issue of retroactive application of Hills.” Slip op. at 6.
It’s time again for our annual tradition of end-of-term number crunching. Like last year, this year’s stats are in a single post.
CAAF heard oral argument in 42 cases in the 2016 term, resulting in 39 authored opinions of the court, 2 per curiam opinions, and 1 summary disposition. Summaries of each case, with links to CAAFlog case pages, are available on the October 2016 Term page.
These arguments constituted the busiest oral argument calendar at the court since the 2011 term, when the court heard 47 arguments. It’s a stark contrast to last term’s mere 28 oral arguments, which I believe was the smallest number of arguments in a CAAF term since the court was established (as the CMA) in 1951.
CAAF was also very busy with summary dispositions. By my count the court issued summary dispositions in 220 cases – a number that is about 10 times more than average. My notes show that 175 of these 220 summary dispositions involved challenges to the composition of the CCA panels that reviewed the cases based on the fact that at least one judge was also a Presidentially-appointed and Senate-confirmed judge of the Court of Military Commission Review (CMCR). The Supreme Court granted certiorari of this question in the final days of the term; the first such grant in a military case in nearly a decade.
The other summary dispositions include more than two-dozen trailer cases and a summary reversal and remand for further consideration in a case heard at oral argument (United States v. Brantley, 76 M.J. __ (C.A.A.F. Jun. 1, 2017) (CAAFlog case page)).
Of the 39 authored opinions of the court:
Senior Judge Erdmann earned senior status (and Chief Judge Stucky became Chief) when his 15-year appointment expired on July 31, 2017. I will refer to them by their current titles in these stats. CAAF begins the term with the seat still vacant, however the President recently announced his nominee.
The 42 cases heard at oral argument break down by service as follows:
I score the Government divisions as the winner in 20 of these 42 cases, the defense as the winner in 21 cases, and 1 case with no winner (Randolph v. HV and United States, 76 M.J. 27 (C.A.A.F. Feb. 2, 2017) (CAAFlog case page), in which CAAF concluded that it has no jurisdiction over an Article 6b petition).
Of the 39 authored opinions of the term, 24 were unanimous (no separate opinions). The Government divisions prevailed in exactly half (12) of these. The two per curiam opinions also split, with the Government division winning in one, and the defense winning in the other.
An additional 3 cases involved only separate concurring opinions, for a total of 27 authored opinions with no dissents (69% of the total of 39 authored opinions). The Government divisions prevailed in 16 out of these 27 (59%) .
The other 12 authored decisions involved a total of 14 separate dissenting opinions. Broken down by judge:
Eight opinions drew just 1 dissenting vote (Bartee, Claxton, Haverty, Lopez, Mitchell, Nieto, Ramos, Sager, and Sewell) and three cases drew 2 (Boyce, Forrester, and Randolph). In all but one of these every judge who dissented authored a separate dissenting opinion. The exception was Forrester, in which Senior Judge Erdmann only joined Judge Ohlson’s dissenting opinion. Of the two other cases with more than one dissenting judge: In Boyce, Chief Judge Stucky and Judge Ryan dissented, each writing separately; in Randolph, Senior Judge Erdmann and Judge Sparks dissented, each writing separately but with Judge Sparks also joining Senior Judge Erdmann’s dissent.
These dissents generally favored the Government divisions, as follows:
Another interesting statistic is the comparison of who wrote for the court compared with when there were dissents. In order of least-dissenters to most:
Judge Sparks wrote for the court in 8 cases, drawing 1 dissent (and 2 concurring opinions).
Judge Ryan wrote for the court in 9 cases, of which 2 drew dissents.
Senior Judge Erdmann wrote for the court in 6 cases, of which 2 drew dissents.
Judge Ohlson wrote for the court in 9 cases, of which 3 drew dissents.
Chief Judge Stucky wrote for the court in 7 cases, of which 4 drew dissents. If there’s an award for dissents, Chief Judge Stucky won it handily as he both dissented the most and drew the most dissents.
Chief Judge Stucky wrote a total of 14 opinions this term: 7 opinions of the court, 2 concurring opinions, and 5 dissenting opinions. He was with the majority in 34 out of 39 cases with authored opinions (87%). Of these, but excluding Randolph, Chief Judge Stucky voted for the Government division in 24 out of 38 cases (63%), dissenting from none of the Government divisions’ victories.
Judge Ryan wrote a total of 13 opinions this term: 9 opinions of the court, 2 concurring opinions, and 2 dissenting opinions. She was with the majority in 37 out of 39 cases (95%). Of these, but excluding Randolph, Judge Ryan voted for the Government division in 21 out of 38 cases (55%), dissenting from none of the Government divisions’ victories.
Judge Ohlson wrote a total of 11 opinions this term: 9 opinions of the court, zero concurring opinions, and 2 dissenting opinions. He was with the majority in 37 out of 39 cases (95%). Of these, but excluding Randolph, Judge Ohlson voted for the Government division in 17 out of 38 cases (45%), dissenting from two of the Government divisions’ victories.
Judge Sparks wrote a total of 11 opinions this term: 8 opinions of the court, 1 concurring opinion, and 2 dissenting opinions. He was with the majority in 37 out of 39 cases (95%). Of these, but excluding Randolph, Judge Sparks voted for the Government division in 20 out of 38 cases (53%), dissenting from none of the Government divisions’ victories.
Senior Judge Erdmann wrote a total of 9 opinions this term: 6 opinions of the court, zero concurring opinions, and 3 dissenting opinions. He was with the majority in 35 out of 39 cases (90%) (he joined Judge Ohlson’s dissent in Forrester). Of these, but excluding Randolph, Senior Judge Erdmann voted for the Government division in 16 out of 38 cases (42%), dissenting from three of the Government divisions’ victories.
Civilian defense counsel argued 5 of the 42 cases (12%) argued at CAAF this term: Ahern, Boyce, Gomez, Reese, and Richards. Of these, the defense won in 2 (40%).
In cases argued by military appellate defense counsel, the defense won in 19 out of 37 (51%) (this includes Randolph, which I consider to be a loss for both sides).
On the Government division side one civilian attorney argued and won one case (Shea).
Of the 19 cases where military defense counsel argued and won:
So the oral argument success rates for military defense counsel at each of the four appellate defense divisions, from best to worst, was:
CAAF heard oral argument in 4 cases with issues certified by a Judge Advocate General: Carter, Fetrow, Gurczynski, and Mitchell. Of these 4 cases, 2 were from the Army and 2 were from the Air Force.
The Government division lost in every one (three by unanimous decision, one with a lone dissent).
CAAF specified issues for oral argument in 8 cases (Bowen, Boyce, Haverty, Lopez, Ramos, Randolph v. HV, Gurczynski, and Swift). These specified issues were dispositive in every case except for Swift (where CAAF did not reach the specified question of legal sufficiency).
CAAF also decided 4 cases with Grostefon issues this term (Erikson, Nieto, Sewell, and Wilson). Of these, the defense won in 2.
Of the 42 cases heard at oral argument in the 2017 term, the CCAs were represented as follows:
Of these:
CAAF also reversed 20 CCA decisions by summary disposition. Of these 20 summary reversals:
These numbers make the Army CCA the most-reversed court of the term. An interesting factor, however, is that all of CAAF’s reversals of the Army CCA were in cases where the CCA denied relief to an individual appellant. Both cases certified by the Judge Advocate General of the Army, in contrast, resulted in CAAF affirming the CCA’s decision. Both of those cases were prosecution interlocutory appeals (Mitchell and Gurczynski).
CAAF considered 18 petitions for extraordinary relief during the 2017 term, with one two remaining undecided at the end of the term (a writ-appeal on a coram nobis petition in the Gray capital case, discussed here) (update: and a writ-appeal in an Air Force case, Hassett, that appears to be still pending automatic review at the CCA). The pending petition in Gray is functionally a duplicate of a prior petition (which CAAF allowed to be replaced with the most-recent filing).
The other 15 petitions include 5 writ-appeals, 1 habeas petition, 5 petitions for writs of mandamus, 1 petition for a writ of prohibition, and 3 original writ petitions.
CAAF denied them all.
Some notable petitions include Randolph (the court heard oral argument and concluded that it lacks jurisdiction), two petitions in Labella (the first untimely, the second denied), two in the Bergdahl case (both denied – losses number 6 and 7 for Bergdahl), and a petition in Hennis (denied without prejudice).
CAAF begins the 2016 term with a relatively full docket.
32 33 cases will be carried over from the 2016 term, the first of these cases to be granted review was Acevedo, granted on April 14, 2017 (discussed here).
These 32 cases include one capital appeal (Hennis), in which CAAF will hear oral argument on a motion to compel funding (on the first oral argument date of the term).
These 32 cases also include 5 certified cases: 3 from the Army (Gould, Jacobsen, and Simpson), 1 from the Air Force (Katso), and 1 from the Marine Corps (Hale).
There are also 2 cases in which CAAF granted review but ordered no briefs: Luna and Moore (a Hills trailer).
Speaking of Hills (our #3 Military Justice Story of 2016), for the third term in a row CAAF will address the improper use of charged offenses as proof of an accused’s propensity to commit the same charged offenses. The court will review the Army CCA’s decision in United States v. Guardado, 75 M.J. 889 (A. Ct. Crim. App. Nov. 15, 2016) (CAAFlog case page), that dissected Hills and identified five factors to consider when determining if an appellant was prejudiced by the improper use of charged offenses for propensity purposes. Guardado will be the second case argued this term.
Other recent grants can be reviewed in our CAAF Grants category.
CAAF’s schedule includes 30 oral argument dates for this coming term – a larger than average number and an increase over the 27 scheduled dates at the beginning of last term (of which only 23 were actually used). The court typically hears two oral arguments per day, suggesting that it anticipates hearing upwards of 60 oral arguments this coming term. That would be the most oral arguments since FY08, as shown by this chart from CAAF’s FY16 Annual Report:
As always, we will track and analyze the court’s activity as the term develops.
This week at SCOTUS: On September 28, 2017, the Supreme Court granted certiorari in Dalmazzi v. United States, No. 16-961, Cox, et al., v. United States, No. 16-1017, and Ortiz v. United States, No. 16-1423, consolidating the cases and directing additional briefing on whether the Court has jurisdiction over those where CAAF vacated its grant of review. They are the first military cases to be granted cert. since United States v. Denedo, 556 U.S. 904 (2009). Our coverage of these cases will continue under the heading of Dalmazzi v. United States, No. 16-961 (CAAFlog case page) (SCOTUSblog case page).
In other SCOTUS news, the cert. petitions in Abdirahman, et at., and Alexander were distributed for conference on Oct. 13. Additionally, an extension of time to file a cert. petition was granted in Richards v. United States, No. 17A338, until November 10, 2017. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking six cases:
This week at CAAF: The next scheduled oral argument at CAAF is on October 10, 2017.
This week at the ACCA: The Army CCA’s website shows no scheduled oral arguments.
This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on October 24, 2017. The argument will be heard at the Florida International University College of Law.
This week at the CGCCA: The Coast Guard CCA has a new website, but the link to its docket doesn’t work.
This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.
