Here is a link to ACCA’s en banc opinion in United States v. Gaskins, No. 2008012 (A. Ct. Crim. App. Aug. 27, 2010).  As a friend o’ CAAFlog who sent the opinion our way pointed out, Judge Ham (in a 23-page dissent) has some interesting comments for her fellow judges in the majority on the case.  The majority finds omission of a defense sentencing exhibit, called the “Good Soldier Book” throughout the opinion, warrants a DuBay hearing to determine if the omission of the Gold Soldier Book was substantial such that the limits on the potential sentence in Art. 19, UCMJ and RCM 1103(f) are implicated.

Judge Ham’s dissent is well written, but rather strongly worded compared to your run-of-the-mill CCA dissent–so strong that ACCA Chief Judge Tozzi joins the dissent but writes separately to note disagreement with some of the stronger language by Judge Ham.  Here is possibly the best portion of the dissent, and the portion with which Chief Judge Tozzi did not agree:

The case is now before us and I believe we should decide it.  Applying the law as set forth in the UCMJ and the Rules for Courts-Martial, I would affirm only so much of the sentence as provides for confinement for six months, forfeiture of $884 per month for six months, and reduction to E-1. I cannot agree that applying the law Congress promulgated and the President implemented is an “extreme remedy.” Congress determined the appropriate remedy for an incomplete record and we are bound by it. Whether we agree with the result is not the question; it is the appropriate result under the law.

The majority has instead decided to launch an appellate “rescue mission” to allow the government yet another opportunity to carry its burden and complete the record in this case. See United States v. Burris, 21 M.J. 140, 145 (C.M.A. 1985). Dubay hearings are not meant as a vehicle to administer appellate “CPR” to the government’s case. Nor should this court, in ordering a Dubay hearing, be in the business of instructing the government how it should best attempt to carry its burden. See United States v. Gaskins, ARMY 20080132 (Army Ct. Crim. App. 27 Aug. 2010) (order) (unpub.) (Appendix). Specifically, this court should not direct the government to search for specific documents in order to reconstruct the missing exhibit. Additionally, this court should not choose the questions it directs the Dubay judge to answer with an eye toward finding the facts it needs to affirm the sentence in the case, rather than simply finding the facts the majority asserts are necessary to decide the legal issue presented.

I wonder if the majority judges want their hail and farewell (or whatever the Army calls it) gifts back?

Thanks to Anonymous for this great link to the current list of information requests and data reviewed by the Independent Panel established by Sec. 506 of the FY2010 NDAA to review the judge advocate requirements of the Dept. of the Navy.  The links are plentiful, but they include links to all of the Panel’s requests for information to the Navy JAG, CNO and others, and research studies conducted by CNA regarding Navy-Marine Corps judge advocates (e.g. the primary report here and summary PowerPoint here), the Marine Corps’ Legal Servic es Strategic Action Plan for 2010-2015, the July 2009 Report on the State of Navy Military Justice [updated link with full report with endorsement in one document], etc.

Update:  There are also some interesting historical materials in Section E. of the outline, such as this memo on the policy and legal considerations of appointing a Marine Corps judge advocate as the Navy JAG.

Update 2:  Somehow or someone the links are all becomming inaccessible.  I am slowly collecting all the documents and publishing them on a separate page.

I’m leaving for OCONUS reserve duty tomorrow, so I’m putting out This Week in Military Justice a day early.  My blogging this week will be somewhere around diminished to non-existent.

This week at the Supremes:  There are no expected military justice developments at the Supremes on my radar screen for this week.

This week at CAAF:  CAAF’s new term starts on Wednesday.  Happy New Term!

This week at the CCAs:  NMCCA will be hearing three oral arguments this week and ACCA will be hearing one. 

[UPDATE:  Courtesy of Phil "My Liege" Cave, here are the issues being argued Monday at NMCCA in United States v. Collins:

I. WHETHER THE JUDGE ERRED IN ALLOWING EVIDENCE OF UNCHARGED CONDUCT UNDER MIL. R. EVID. 413 WHERE THERE WAS INSUFFICIENT STRENGTH OF PROOF THAT THE UNCHARGED CONDUCT HAD ACTUALLY OCCURRED AS WELL AS INSUFFICIENT EVIDENCE THAT THE UNCHARGED CONDUCT QUALIFIED AS SEXUAL CONTACT.

II. WHETHER THE APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE SIXTH AMENDMENT WHERE HIS DEFENSE COUNSEL FAILED TO IDENTIFY AND CALL WINTESSES WHO WERE EITHER PRESENT AT THE TIME THE ALLEGED UNCHARGED CONDUCT OCCURRED OR WHO HAD PERSONAL KNOWLEDGE OF THE COMPLAINING WITNESS’ HISTORY OF FALSE REPORTING OF ALLEGED SEXUAL ASSAULTS.

III. WHETHER THE EVIDENCE IS FACTUALLY INSUFFICIENT TO SUSTAIN A CONVICTION FOR AGGRAVATED SEXUAL ASSAULT, WHERE THE EVIDENCE ADDUCED AT TRIAL DOES NOT SUPPORT A FINDING THAT THE ALLEGED VICTIM WAS SUBSTANTIALLY INCAPACITATED.]

ACCA is hearing oral argument on Wednesday in United States v. Fernandex-Brito, No. ARMY 20080982, on these issues:

I. WHETHER THE MILITARY JUDGE ERRED BY DENYING THE DEFENSE REQUEST FOR AN R.C.M. 706 SANITY BOARD.

II.  WHETHER THE MILITARY JUDGE ERRED BY ACCEPTING APPELLANT’S GUILTY PLEA WHERE EVIDENCE WAS INTRODUCED DURING THE PROVIDENCE INQUIRY AND PRESENTENCING HEARING THAT APPELLANT WAS NOT MENTALLY RESPONSIBLE DURING THE COMMISSION OF THE OFFENSE AND BY NOT EXPLAINING THE DEFENSE OF LACK OF MENTAL RESPONSIBILITY TO APPELLANT NOR ELICITING FACTS TO NEGATE THE DEFENSE.

[Update:  Courtesy of Phil "My Liege" Cave, here's the issue being argued at NMCCA in United States v. Curry on Wednesday:  "WHETHER THE EVIDENCE WAS FACTUALLY AND LEGALLY SUFFICIENT TO SUSTAIN A FINDING OF GUILT TO THE CHARGE OF LARCENY AS THE GOVERNMENT DID NOT PROVE BEYOND A REASONABLE DOUBT THAT THE APPELLANT KNEW THAT HE WAS NOT ENTITLED TO BAH WHEN HE SUBMITTED HIS VALID MARRIAGE LICENSE TO PSD."  And here are the assignments of error in United States v. Vasquez being argued on Thursday at NMCCA:

I. APPELLANT’S CONVICTION IS FACTUALLY AND LEGALLY INSUFFICIENT BECAUSE THE GOVERNMENT DID NOT INTRODUCE SUFFICIENT EVIDENCE TO PROVE BEYOND A REASONABLE DOUBT THAT APPELLANT WAS NOT ENTRAPPED INTO THE OFFENSE OF ATTEMPTED POSSESSION WITH THE INTENT TO DISTRIBUTE.

II. THE MILITARY JUDGE ERRED BY DENYING APPELLANT’S MOTION TO DISMISS FOR A VIOLATION OF ARTICLE 10, UCMJ.

III. APPELLANT’S SENTENCE IS INAPPROPRIATELY SEVERE BECAUSE GOVERNMENT CONDUCT ENTICED APPELLANT INTO COMMITTING AN OFFENSE QUALITATIVELY MORE SEVERE THAN HE ORIGINALLY INTENDED. IN ADDITION, HE HAS NOW BEEN SENTENCED BY TWO SOVEREIGNS FOR THE SAME CRIME.]

This week in the Marine Corps judge advocate community:  The Marine Corps’ WESTPAC Regional Defense Counsel, Maj Chris Thielemann, will be promoted to lieutenant colonel this week.  Congratulations to soon-to-be LtCol Thielemann!

I also initially overlooked these trial practice tips from a military judge:  MAJ Matthew McDonald, A View from the Bench:  “You Don’t Know What You Don’t Know”; Perspectives from a New Trial Judge.

I initially overlooked this article in the July 2010 Army Lawyer:  MAJ Andrew Flor, Spice–”I Want a New Drug.” 

The July 2010 issue of the Army Lawyer is available here.  And it’s a military justice wonk’s delight. 

Here’s a link to an article by CPT Robert E. Murdough called, “I Won’t Participate in an Illegal War”:  Military Objectors, the Nuremberg Defense, and the Obligation to Refuse Illegal Orders.  The article doesn’t appear to mention LTC Lakin, but I’ll be reading it with his case partially in mind.

And here’s a link to an article by MAJ David Edward Coombs that has me gnashing my teeth.  It’s called,  United States v. Blazier:  So Exactly Who Needs an Invitation to the Dance?  Apparently just a surrogate expert, according to MAJ Coombs.

And here’s a link to an article by MAJ Patrick D. Pflaum (who I believe did it in the Conservatory with a lead pipe) about what he rightly calls CAAF’s “landmark” Jones decision, which I think was the most important decision of this term.

We’ve previously discussed Section 506 of the 2010 DOD Authorization Act  requiring a study of the way the Navy and Marine Corps provide legal services. A friend o’ CAAFlog has sent us the hearing notice for the committee.  But first, here are the panel’s members:

1) Mr. Daniel J. Dell’Orto, Chairman (former DoD General Counsel);

2) Ms. Judith A. Miller (former DoD General Counsel);

3) Mr. William Molzahn (former Principal Deputy General Counsel of
the Navy);

4) Lt. Gen. Henry P. Osman, USMC (Ret.) (former Deputy Commandant of
the Marine Corps for Manpower and Reserve Affairs); and

5) RADM James E. McPherson, JAGC, USN (Ret.) (former Judge Advocate General of the Navy).

Now for the hearing notice:

DEPARTMENT OF DEFENSE

Department of the Navy
Meeting of the Independent Panel To Review the Judge Advocate Requirements of the Department of the Navy

AGENCY: Department of the Navy, DoD.

ACTION: Notice of open meeting.

———————————————————————–

Federal Register: August 16, 2010 (Volume 75, Number 157)]

SUMMARY: The Independent Panel to Review the Judge Advocate Requirements of the Department of the Navy (DoN) (hereinafter referred to as the Panel) will hold an open meeting. The Panel will meet in order to hear testimony from senior members of the Judge Advocate General’s Corps (JAGC) and the U.S. Marine Corps (USMC) and to conduct deliberations concerning the judge advocate requirements of the DoN.  These sessions will be open to the public, subject to the availability of space. In keeping with the spirit of FACA, the Panel welcomes written comments concerning its work from the public at any time. Interested citizens are encouraged to attend the sessions.

DATES: The meeting will be held on Wednesday, September 1, 2010, from 8 a.m. to 5 p.m.

ADDRESSES: The meeting will be held at the Residence Inn Arlington Pentagon City, 550 Army Navy Drive, Arlington, VA 22202.

FOR FURTHER INFORMATION CONTACT: Any member of the public wishing further information concerning this meeting or wishing to submit written comments may contact: Mr. Frank A. Putzu, Designated Federal Official, Department of the Navy, Office of the General Counsel, Naval Sea Systems Command, Office of Counsel, 1333 Isaac Hull Avenue, SE, Washington Navy Yard, Building 197, Rom 4W-3153, Washington, DC 20376, via Telephone: 202-781-3097; Fax: 202-781-4628; or e-mail: frank.putzu@navy.mil.

SUPPLEMENTARY INFORMATION: Pursuant to the provisions of section 506 of Public Law 111-84, the Federal Advisory Committee Act (FACA) of 1972, (5 U.S.C. Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.50, this is a public meeting and interested citizens are encouraged to attend the sessions.

Interested persons may submit a written statement for consideration by the Panel at any time prior to August 23, 2010.

D. J. Werner,
Lieutenant Commander, Office of the Judge Advocate General, U.S. Navy,
Federal Register Liaison Officer.
[FR Doc. 2010-20153 Filed 8-13-10; 8:45 am]
BILLING CODE 3810-FF-P

It occurred to me today to wonder about the 3-2 opinions during CAAF’s September 2009 term.

There were 10 3-2 opinions.  Here’s the most striking thing about them:  Judge Stucky voted for the government in all 10 cases.  Here’s the next most striking statistic:  Judge Erdmann voted for the government in only 1 of the 10:  Lloyd, in which he was the senior judge in the majority and assigned the opinion to himself.  Judge Baker was the second most likely to support the government in 3-2 opinions, with 7.  Judge Ryan was next with 6.  Chief Judge Effron was fourth with 4.

The most likely line-up in the majority was a tie.  Each of the following combinations produced 3 of the 10 3-2 majorities:  Chief Judge Effron, Judge Baker, and Judge Stucky (Neal, Clayton, Ferguson); and Judge Baker, Judge Stucky, and Judge Ryan (Cowgill, Smith, Ayala).  No other 3-2 line-up occurred more than once.

And here’s the breakdown of how often each judge was on the winning side of a 3-2 split: 

1.  Judge Stucky:  8

2.  Judge Baker:  7

3.  Chief Judge Effron:  6

      Judge Ryan:  6

5.  Judge Erdmann:  3

I thought it would be interesting to place the CAAF judges on a continuum based solely on how often they voted for the Government during the September 2009 term.  Here’s what I found:

1.  Judge Stucky:  31

2.  Judge Baker:  27

     Judge Ryan:  27

4.  Chief Judge Effron:  24

5.  Judge Erdmann:  22

The mean was 26.2.  (Obviously both the median and the mode were 27.)

Here’s an interesting article about SSgt Wuterich’s counsel’s motion for relief under United States v. Hutchins, 68 M.J. 623 (N-M. Ct. Crim. App. 2010) (en banc), certificate for review filed, __ M.J. __, No. 10-5003/MC (C.A.A.F. June 7, 2010).  The defense seeks relief due to Marine Corps’ retirement of one of his lawyers over defense objection.

The issue was raised at a motions hearing.  Trial is currently scheduled to start on 13 September.

[Disclosure:  I was one of SSgt Wuterich's appellate counsel on two Article 62 appeals.]