Today CAAF issued the first opinion of the term, in United States v. Schumacher, No. 11-0257, 70 M.J. 387 (C.A.A.F. Dec. 7, 2011) (CAAFlog case page) (link to slip op.). Judge Stucky wrote for a unanimous court, finding that the trial military judge did not err in failing to give a self-defense instruction because the evidence did not reasonably raise the defense. However, the court remanded the case to the N-MCCA for analysis under United States v. Fosler, 70 M.J. 225 (CAAF, 2011).

The key reasoning follows:

Appellant’s assertion that a self-defense instruction was necessary because he believed that the individuals in his home were unknown intruders is untenable. Appellant was present when KD requested that her neighbor call the military police. The military police arrived four minutes later. During the interim period, KD was trying to persuade her husband to put away his guns because “I told him that, you know, well, obviously we both know the MPs are coming.” When the MPs arrived, they were dressed in full military police attire including badges. While in the process of waving the pistol around, Appellant stated “I’ve killed people before. It’s nothing for me to kill a few fucking MPs.”

Although not dispositive, trial defense counsel did not argue that a self-defense instruction should be given on an intruder theory at trial. See United States v. Hibbard, 58 M.J. 71, 76 (C.A.A.F. 2003) (“Although the defense presentation at trial is not dispositive in determining what affirmative defenses have been reasonably raised by the evidence, we may take into account the absence of [such an] approach from the defense case when considering [whether the evidence reasonably raised an affirmative defense].”). In fact, trial defense counsel explicitly denied that the evidence could even make out such a theory. The military judge stated, “I don’t think there’s any evidence at all that by the time he brandished that weapon towards the MPs he didn’t realize they were MPs. Tell me if you disagree.” The defense responded, “I don’t disagree.”

Given the sequence of events, the physical appearance of the MPs, Appellant’s statement indicating knowledge of who the people were, and defense counsel’s concessions at trial, the military judge determined there was no evidence that Appellant reasonably perceived the infliction of wrongful bodily harm. In doing so, we hold that he did not err.

6 Responses to “Opinion Analysis: CAAF issues opinion in US v. Schumacher, No. 11-0257”

  1. John Fogley says:

    Nice job to CAAF for not masking the profanity in this opinion, which I believe (but am not certain) is a reversal of precedent.  Fuck yeah!

  2. westpointquaker says:

    And why do you suppose that the CAAF chose to “remand the case to the [CCA] to determine whether in light of [Fosler], the specification alleging a communication of a threat states an offense”?  Clearly, the specification here failed to state an offense under Fosler because it did not allege the terminal element.  So is the CCA impliedly being directed to dismiss that charge and reassess the sentence?  But unlike Fosler, this was a guilty plea case, where the military judge informed the accused of the terminal element, and the accused admitted to that element.  So isn’t the defective pleading cured by the guilty plea and the accused’s admissions, as it would be in federal court.  But if there were no problem with the offense under Fosler as the result of a provident guilty plea, wouldn’t the CAAF have simply affirmed.  I’m confused. 

  3. Rob M says:

    Without reading the lower court opinion, it seems odd that CAAF bothered to grant review in this case at all (other than the Fosler trailer).  Anyone know why this issue was CAAF-worthy?

  4. Peanut Gallery says:

    @ Rob M:

    Because the facts aren’t as one-sided as Zach and CAAF make them out to be.  

  5. Rob M says:

    PG- can you elaborate?

  6. Justsomeguy says:

    There certainly is more to come on Fosler. CAAF remanded some 60+ cases back to the CCA’s on Fosler and few, if any, of those 60 were restricted to contested Adultery charges where the failure to state an offense was first objected to at trial. With that many remands of such varied offenses, pleas, and no objection to the spec at trial, it would certainly seem CAAF is quite clear of their broad intent of Fosler…contrary to how the CCA’s have thus far reviewed it.

    So far, only NMCCCA and ACCA have released several opinions with Fosler issues. NMCCCA appears is dismissing in those cases that were contested and affirming in all guilty pleas. ACCA, on the otherhand has not found a single case where Fosler applies and is carefully crafting each of those decisions to affirm in light of Fosler for a myriad of reasons including: that the spec properly stated the alleged act was “wrongful”; that the offense was not an adultery offense; that it was adultery but in this case the terminal element is obviously implied; that it was not objected to first at trial; that it was not objected to first at trial or on appeal; (and my personal favorite) because the specification correctly stated the date, location, and victim(s) of the offense, yada yada.