CAAF decided the Air Force case of United States v. Talkington, No. 13-0601/AF, 73 M.J. 212 (CAAFlog case page) (link to slip op.), on Monday, April 7, 2014, finding that “sex offender registration is a collateral consequence of the conviction alone, not the sentence,” and that “while an accused may raise a collateral consequence in an unsworn statement . . . the military judge may instruct the members essentially to disregard the collateral consequence in arriving at an appropriate sentence for an accused.” Slip op. at 2. CAAF affirms the sentence and the decision of the Air Force CCA.

Judge Ryan writes for the court, joined by Judges Erdmann and Stucky. Chief Judge Baker concurs in the result, joined by Judge Ohlson.

Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of three attempts in violation of Article 80, UCMJ: two specifications of attempted aggravated sexual assault and one specification of attempted abusive sexual contact. He was sentenced to reduction to E-1, total forfeitures, confinement for eight months, and a bad-conduct discharge.

Appellant made an unsworn statement during the sentencing phase of the court-martial in which he stated, “I will have to register as a sex offender for life . . . I am not very sure what sort of work I can find.” Slip op. at 3. The Government then asked the military judge to instruct the members to disregard the possibility of sex offender registration when determining a sentence. Over Defense objection, the judge gave a lengthy instruction to the members that included:

However, as a general evidentiary matter, evidence regarding possible registration as a sex offender or the potential of an administrative discharge, and the consequences thereof, would be characterized as a collateral consequences [sic], and thus inadmissible outside of the context of an unsworn statement. . . . Possible collateral consequences of the sentence, beyond those upon which you are instructed, should not be a part of your deliberations other than as I have earlier discussed.

As to sex offender registration requirements . . . [e]ven if such requirements were predictable, whether or not the accused will be or should be registered as a sex offender and whether he will be or should be administratively discharged is not a matter before you. Rather, determining an appropriate sentence for this accused, in accordance with my instructions, is your charge. In short, use of this limited information is fraught with problems.

Slip op. at 4. The Air Force CCA affirmed the convictions without considering the propriety of this instruction, and CAAF granted review of one issue:

Whether the military judge erred by instructing the members that consideration of sex offender registration is “not a matter before them” and “fraught with problems.”

Judge Ryan’s opinion of the court can be summarized in one powerful sentence:

The collateral consequences of a court-martial do not constitute R.C.M. 1001 material, and while they may be referenced in an unsworn statement, they should not be considered for sentencing.

Slip op. at 8 (citation omitted). This is, to say the least, a dramatic victory for the Government.

In an opinion rich in citations and quotations from precedent, Judge Ryan explains that while Appellant asked the court to extend its decision in United States v. Riley, 72  M.J. 115 (C.A.A.F. 2013) (CAAFlog case page) (finding that the military judge abused his discretion by accepting the Appellant’s guilty plea without ensuring that she was aware of the consequence that she would have to register as a sex offender), to hold that sex offender status is not a collateral consequence for any purpose, the fact is that “Riley is not so broad.” Slip op. at 10. Rather, two reasons prevent the expansion of Riley to sentencing. First:

[U]nlike the context of a plea inquiry, nothing about the sentence has any impact on the requirement or duty to register as a sex offender. Sex offender registration operates independently of the sentence adjudged and remains a collateral consequence.

Slip op. at 11. And second:

[T]he Supreme Court continues to categorize sex offender registration as a collateral consequence. . . . In the context of sentencing, Miller remains good law to the extent it recognizes that “the requirement that Appellant register as a sexual offender is a consequence of his conviction that is separate and distinct from the court-martial process.

Slip op. at 12-13. The discussion of United States v. Miller, 63 M.J. 452, 457 (C.A.A.F. 2006) (affirming guilty plea to possession of child pornography despite an absence of warnings about sex offender registration), as good law is somewhat interesting, considering that Riley overruled the relevant conclusion in Miller. But Judge Ryan concludes:

Appellant was permitted to mention sex offender registration in his unsworn statement. In turn, the military judge had discretion to temper the unsworn statement with appropriate instructions.

Slip op. at 13-14 (marks and citations omitted). In this case, appropriate instructions included “informing the members that Appellant was permitted to address sex offender registration in his unsworn statement, while also informing them that possible collateral consequences should not be part of their deliberations in arriving at a sentence.” Slip op. at 14.

But Chief Judge Baker and Judge Ohlson disagree, finding that the judge’s instruction was error but that this error did not prejudice Appellant. The Chief Judge’s concurring opinion begins by noting that sex offender registration “may be the most significantly stigmatizing and longest lasting effect arising from the fact of conviction.” Con. op. at 2. He then focuses on the difficulty in addressing this significant consequence of a conviction:

At present, military judges are left to instruct their way through and around the rocks and shoals of inconsistent case law and ambiguous rules. On the one hand, members must give due consideration to an accused’s unsworn statement, which in this case made reference to sex offender registration. Moreover, because sex offender registration is addressed to the purposes of sentencing, in many cases it is also appropriate as mitigation, and potentially as rebuttal. The right to present an unsworn statement is generally considered unrestricted. On the other hand, as the Court highlights, sex offender registration is a collateral consequence of conviction rather than a consequence of sentencing. This results in the Court’s conclusion that sex offender registration is collateral and thus inadmissible, and should not be part of their deliberations.

Con. op. at 2-3 (marks and citations omitted). But contrary to the majority, Chief Judge Baker concludes:

In my view, and as recognized in Riley and Dep’t of Defense Instr. 1325.07, sex offender registration is integral to the penalty landscape for certain sexual offenses. Therefore, an accused should be able to refer to sex offender registration in an unsworn statement with an accompanying instruction at least to the extent that the Dep’t of Defense Instr. 1325.07 addresses the issue.

Con. op. at 4. But he concludes that “Appellant has not demonstrated sentencing prejudice from any confusion generated by the instruction in this case.” Con. op. at 5. Though, it does seem that this analysis is reversed. This error was preserved by the Defense objections, so it must have been the Government that demonstrated its harmlessness…

Case Links:
• AFCCA opinion
• Appellant’s brief
• Appellee’s (Government) brief
• Blog post: Argument Preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

37 Responses to “Opinion Analysis: United States v. Talkington, No. 13-0601/AF”

  1. stewie says:

    Definitely agree with the concurrence.  What’s the point of saying it in the unsworn if the MJ can ostensibly come in and say panel, ignore all that, it’s irrelevant (but consider that it was said).
    I wonder after this ruling:
    1. Can the DC mention Sex Offender Registration during voir dire now?
    2. Can the DC mention it during sentencing argument? It’s a bit disingenuous to say it’s really a part of the merits IMO, but if that’s true, then the DC should be able to mention it during merits closing argument, right?
    SOR is a pretty significant thing.  If it’s significant for guilty pleas, don’t know why it’s collateral for merits.  That’s a pretty fine distinction IMO.

  2. Matt says:

    I did not read the briefs so I do not know if this was raised, but I think evidence of Registration requirements should be allowed for other reasons.  The defense is allowed to introduce evidence that the accused has a family support structure, that he has employment opportunities, and that he generally has “rehabilitative” potential.  Part of the panel’s decision is about the need for specific deterrence and rehabilitation.  Registration goes directly to those concerns.  If the panel is concerned about recidivism, then registration (and its accompanying restrictions) is evidence that mitigates that concern.  The defense fails when they try to use registration as evidence of “punishment” and ask for sympathy because of it.  Instead, they need to introduce it as evidence of deterrence and rehabilitation.

  3. brain lc says:

    Stewie,  I believe registration is collateral for merits (and irrelevant) because it has no bearing on whether the accused committed the offense.  Whether someone, if convicted, has to register does not tell you whether they did the crime.  Its only purpose in merits is nullification. 
    Its relevant in guilty pleas because it goes to whether the plea was knowing and voluntary.  The choice to plead guilty is a tactical choice.  A (guilty) accused gets to weigh the costs and benifits of pleading guilty.  If he can’t accurately assess those costs (registration being one of them) then the validity of his decision to plead guilty is questionable.  An accused gets to know the consequences of his plea so he can make an informed decision – not because it could somehow change whether he is guilty or not.
    All of this is emotionally linked, but legally separate, from the issue of whether this is good public policy in the first place.

  4. af_dc says:

    Matt, I think SOR is an extremely effective tool for defense counsel to bring up, particularly in this day and age when even the most minor offense seems to merit a court-martial. Sure, it may not be great to bring up when your guy has raped his daughter, but what about all the minor touching or butt slapping cases going to court these days? I brought up SOR to great effect in a case where my client had just been convicted of touching someone’s butt. The members visibly blanched and looked horrified when I said it. They came back after a very short time with a reprimand and a few days of hard labor — no jail, no discharge, nothing else.

  5. DCGoneGalt says:

    AF_DC:  Do you, or anyone else, know of any members that have supported clemency in cases such as the minor sexual contact offenses that prior to ~ 2011 no one would have even imagined sending to court? 
    I could see members supporting set-aside of the verdict on some of the sexual contact cases, i.e. “butt touching” cases such as the one you describe, and imposing NJP once they know the SOR facts, especially in a case where those sexual contact offenses may have been add-on charges as part of a sexual assault case.  Sadly, Congress has decided that such set-asides are a non-starter, even in cases where there is an acquittal of the more severe charges (waaaaaay beyond a reasonable doubt) ends up with someone as a sex offender for conduct that, absent a sexual assault allegation, ends up being handled with less than a court-martial.
    I concur that SOR is a tool for defense counsel but I believe MJs will start greatly limiting what counsel can argue as the sentences in the typical sexual contact cases start to lessen due to the increased realization that a conviction is leading to lifetime SOR.

  6. AF JAG says:

    I think the majority got it right.  A “collateral consequence” is not defined by its impact on the future life of the accused but rather upon the lack of nexus between it and the adjudicative merits of the case (be it findings or sentencing).
    So while it is certainly true that Sex Offender Registration is likely extraordinarily significant to the accused, that alone doesn’t place it outside the realm of a “collateral consequence” as defined by law.  See United States v. Talkington, __ M.J. __ slip op. at 12 (C.A.A.F. 4 April 2014) (citing Chaidez v. United States, 133 S.Ct. 1103, 1108 n.5).  This is why the defense argument fails.  CAAF didn’t designate Sex Offender Registration as a “collateral consequence” because it wasn’t “important enough”; they did so because it lacks the factual nexus to the members’ job at sentencing, namely:  determination of a sentence based upon admissible aggravation, extenuation, and mitigation evidence.  Rules of relevance still apply at sentencing, and if a piece of evidence (in this case, Appellant’s mandatory sex offender registration as a consequence of his conviction) does NOT qualify as extenuation or mitigation evidence as defined by R.C.M. 1001(c), then it should not form a part of the members sentencing analysis. 
     That’s why the majority’s ruling makes a lot of sense to me.  The accused is permitted a very wide berth during his allocution in his unsworn statement.  But, just because he gets to talk about it, doesn’t mean it’s relevant.  That’s what United States v. Barrier is all about.  Barrier, 61 M.J. 482, 486 (holding that military judge acted within his discretion in instructing members that comparative sentencing information offered by accused in his unsworn statement at sentencing was irrelevant).  The Court’s identification of this issue in Talkington is spot on:  “The collateral consequences of a court-martial do not constitute R.C.M. 1001 material, and while they may be referenced in an unsworn statement, they should not be considered for sentencing.”  Talkington, slip op. at 8 (C.A.A.F. 4 April 2014) (citing United States v. Rosato, 32 M.J. 93, 96 (C.M.A. 1991); United States v. McNutt, 62 M.J. 16, 19-20 (C.A.A.F. 2005); United States v. Barrier, 61 M.J. 482, 486 (C.A.A.F. 2005).
    So to answer your questions, Stewie—NO, I don’t think defense counsel may properly reference Sex Offender Registration at findings either.  Arguing that the jury should not convict the accused of the charged misconduct because it will result in Sex Offender Registration is essentially a jury nullification argument.  And while the law permits the jury to engage in jury nullification, it DOES NOT permit overt solicitations of jury nullification from attorneys, nor instructions from the military judge advising the members about the possibility of jury nullification:  ““[I]n language originally employed by Judge Learned Hand, the power of juries to ‘nullify’ or exercise a power of lenity is just that—a power; it is by no means a right or something that a judge should encourage or permit if it is within his authority to prevent.”  United States v. Thomas, 116 F.3d 606, 615 (2nd Cir. 1997).  See also United States v. Smith, 27 M.J. 25, ** (C.M.A. 1988) (Practice of “jury nullification” did not justify accused’s counsel’s request to advise panel members prior to findings of mandatory life sentence for premeditated murder); United States v. Hardy, 46 M.J. 67, 75 (C.A.A.F. 1997) (holding that while  a court-marital panel has the “power” to engage in jury nullification, this is not a “right” of the panel or the accused, thus, the military judge did not err either in declining to give nullification instruction or in declining otherwise to instruct members that they had power to nullify his instructions on matters of law);United States v. Sanchez, 50 M.J. 506, 509 (A.F. Ct. Crim. App. 1999) (holding military judge did not abuse his discretion in instructing court-martial members that jury nullification was prohibited because the instruction, in substance, does nothing more than to advise the jury of their sworn duty to follow the law).
    Similarly, NO, I don’t think voir dire questions about Sexual Offense Registration as a consequence of a conviction for a particular offense are admissible either because neither support for, nor opposition to mandatory Sex Offender Registration is a basis for challenge.  At findings, the members are asked to decide whether the government has proved a charge beyond a reasonable doubt, NOT whether to impose sex offender registration.  Because sex offender registration is something that they do not and cannot directly impose, it is irrelevant to their qualifications to serve as a court-martial member. 
    And, attempts at setting the table for jury nullification factor in at voir dire as well.  Again, because Sex Offender registration is a collateral consequence of findings, waving the “he’ll have to register as a sex offender” flag during voir dire is really nothing more than an invitation to jury nullification.  And finally, lest anyone be tempted to argue that a potential member’s refusal to consider such jury nullification power as a basis for challenge CAAF and our service courts of criminal appeal have decided otherwise.  United States v. Smith 27 M.J. 25, 29 (C.M.A. 1988) (the concept of jury nullification does not provide a basis for overturning a military judge’s refusal to permit defense counsel to question prospective court members about their views on the statutory mandatory-life sentence for premeditated murder); United States v. O’Neil, 20008 WL2471889 at *11 (N.M. Ct. Crim. App. 19 June 2008) (holding that a court-martial member’s opining during voir dire that he was disinclined to engage in jury nullification is NOT a ground for challenge).  

  7. Matt says:

    af_dc, I was probably not clear in my last post.  I certainly agree that SOR is great to get in front of the panel and can lead to reduced sentence.  I was simply saying referring to cases such as this one, where there is a challenge to SOR evidence and an instruction from the MJ that essentially told the panel to ignore it.  In those cases, the defense fails if they try to rely on an argument that the SOR evidence is relevant as some sort of punishment.  Instead, they should lay the proper foundation and try to introduce it as evidence of deterrence and rehabilitation potential.
    AF JAG, trial counsel is allowed to refer to “generally accepted sentencing philosophies, including rehabilitation..[and] specific deterrence…” RCM 1001(g).  If this is the case, why shouldn’t the defense be able to use SOR as rebuttal?  If the panel is concerned about the accused reoffending, isn’t it relevant to their considerations if he has to register with the police, not live near a school, etc?  This is no different than evidence that he will have a strong support structure, receive counseling, and have a job.

  8. Christian Deichert says:

    Looks like I was spot onin my previous comments on Talkington in December, despite being in the minority here.
    stewie, I would say no to both your enumerated questions.  As far as why it comes up from guilty pleas, it’s not for sentencing purposes, it’s to make sure that the accused’s guilty ple was a “knowing and voluntary act . . . done with sufficient awareness of the relevant circumstances and likely consequences,” i.e., making sure the defense counsel fulfilled their duty to properly advise their client of the meaning, effect, and consequences of his or her plea of guilty.  
    To the other comments, reread the full opinion, not just the concurrence.  Registration is not a “tool for defense counsel.”  It’s a collateral consequence.  It can’t come in properly, other than through the accused’s unsworn statement during presentencing, and if you shoehorn it in there the judge can give a limiting instruction.  Don’t confuse what judges may have allowed defense counsel to get away with in the absence of, or despite, a government objection, with what the law actually is.

  9. k fischer says:

    Awesome point, and thanks for sharing a different way to skin the cat. 
    Stewie, you typed the words right out of my fingers….

  10. brian lc says:

    -Accused has an unfettered right to make an unsworn;
    – Its ok when a panel must follow the judge’s order and disregard SO Registration in determining a sentence.
    -A military judge has the authority to control his/her courtroom and the order and presentation of evidence.
    So, which wins?  Can a judge stop the accused from introducing irrelevant (maybe even prejudicial) evidence?  If not, why not?  The rules of evidence still apply.  If evidence is irrelevant (whether SO registration, or wanting to read War and Peace into the record) why would the MJ lack the power to exclude it? 
    It seems the logic of this opinion is bumping up against some case law that is…inconsistent. It is an odd world where the accused’s right to introduce evidence (that must be disregarded) is greater than the judge’s authority to exclude it in the first place.

  11. af_dc says:

    Matt, got it. That is an excellent point wrt to the instruction.
    DCGG, in the very same “butt touching” case that I was talking about, all the members supported a set-aside and offer of NJP instead, based pretty much entirely on SOR. We also had letters from the CO and a lot of other officers my guy had worked with asking for the same. This was well into the “Invisible War” era, however, so it got no traction with the CA.

  12. AF JAG says:

    I hear your point, I just respectfully disagree.
    First,  I don’t grant your premise that there’s no difference between the accused saying:  “I’ve got a good family support network, so I’m not likely to offend again–give me less punishment,” versus, “I’m a registered sex offender with restrictions on my movements, so now you can trust me–give me less punishment.”  I think those are markedly different thngs to say.
    Second, after I get past the whole counter-intuitive “Sex Offender Registration” is an example of GOOD rehabilitative potential thing (I do grant you that increased security meassures limiting the accused’s location of residence and employment could conceivably help limit the risk of recidivism by giving him less opportunites to encounter likely potential victims), I still don’t see how you have anything to “rebutt” absent the government putting on expert testimony concerning the accused’s recidivism risk.
    Absent a factual basis for the government specifically introduced regarding testimony about recidivism risk, sex offender registration is a “collateral consequence” of his conviction, and, as CAAF now says, does not qualify as legitimate sentencing evidence under RCM 1001.  Thus it should not be considered by the members in arriving at their sentence.

  13. Boo Radley says:

    A collateral consequence is “‘[a] penalty for committing a crime, in addition to the penalties included in the criminal sentence.’”  So a collateral consequence is a penalty.  It is a penalty in addition to the penalty.  How do you get around it?  The Court has said it is a penalty.  What does the color red look like?  It looks like red…
    Anyway, find a sympathetic MJ who will allow it to come in. It is within the MJ’s discretion.

  14. RKincaid3 says:

    AFJAG says:

    “I’m a registered sex offender with restrictions on my movements, so now you can trust me–give me less punishment.”

    Add to that this statement:

    “As a RSO, I have limited opportunities to provide for my family as that scarlet letter will in fact shut the door on many avenues of rehabilitation.  Some communities will drive me from the neighborhood with violence against me and my family (and vandalism).  Such social stigmata is punishment above and beyond what this panel and this court can adjudge–far beyond it.  Please consder the TOTAL punishment upon me simply from the conviction when adjudicating an appropriate punishment from the authorized offense-specific punishments.”

    Why is that not punishment?  Why is it only “collateral?”  It should be much more than collateral at the right time–such as irrelevant on the merits–but it certainly is and should be relevant at sentencing.
    Why we as a society allow this–especially with the new ridiculous Art 120 capturing so much non-sexual, hazing-type offenses, and lumps them in with true sex offenses–really should be the question. 
    But as with so many issues of condemnable behavior–who in politics will stand up for so-called “sex offenders” and defend them?  Even the ones who should not be so classified (but are simply because it is only “collateral”) find little public support or sympathy.  So, the brand alone–the scarlet letter–becomes the reason to justify ignoring their pleas and their plight.
    It is nice when society can so easily justify its treatment of others based upon their relative dispicability.   Anyone remember the old saying: “But for the grace of God go I.” 
    How we treat the least–and the worst–among us says more about us as a nation than anything else we do.  In this regard, we are failing.

  15. Matt S. says:

    This is a great discussion but I think the problem with this decision is the fact that it seems to say that if its a collateral matter you cannot argue it.  But we allow instruction and argument on other collateral matters such as the effects of Articles 58a and 58b, the effects of a punitive discharge, the effects of a punitive discharge on retirement pay, the effects of loss of rank on retirement pay, etc.  I think it is probably a stretch to argue state by state what the requirements are but the defense should be able to argue the DODI.

  16. RY says:

    Talkington does not actually change much.  I’ve worked for a few years in front of this same judge with the same instruction.  He essentially instructs the same whether it is administrative discharges, sentence comparisons, SOR, or any other Grill matters.  It’s all about how you handle it.  Even though a federal conviction is not punishment, it is not difficult to argue it as a real consequence with teeth, just as the court-martial itself is a deterrent and punishment. There’s a reason why legal offices sometimes choose a court over NJP when an NJP-punishment would suffice.  Members get it too.  
    When you draft an unsworn, go beyond just the SOR requirement.  I encourage you to have the client check out the states where he/she wants to live, look up the requirements and the tiers.  Further, now it is a mandatory discharge, whether or not it rises to the mandatory minimum sentences that kick in this summer.  I have my client’s reference the AFI and make the common-sense statement that there’s simply no way the military will allow a convicted sex offender to continue to serve.  
    Tactically, I occasionally submit the written unsworn early.  Give members a chance to digest it before getting instructions.  If the MJ provides this “ignore it” instruction before arguments, and you’ve provided the unsworn early, it’s difficult for members to disregard what they’ve already formed an opinion on.  I’ve use sentence comparisons in this way…reference the sentences, give members a chance to stew on it and even see the co-conspirators at trial, and then let the judge tell them to ignore it…that doesn’t work.  Even MJs who are candid in their post-trial feedback acknowledge comparing co-conspirators in deciding what an appropriate sentence is, i.e., I couldn’t give this guy more than the dealer got.  
    Additionally, you get mileage from members by pointing out that an unsworn is a proper means to bring material to their attention and they have exclusive right to determine what weight to give facts therein.  Gov’t has a chance, as they’ve had all trial long to rebut facts and they didn’t.  Use their common sense on the unrebutted/uncontested statement and fashion an appropriate sentence.  Members get it. So even with an inconsistent instruction (which, BTW, I think just gives MJs two approved options – the majority and the concurrence), court members rarely ignore it.  

  17. stewie says:

    RY it doesn’t change much for you, for now, because you have a judge who finds a balance.  Another judge could use this to shut it off/down completely if they wanted to.  (yes I ended that sentence with a preposition AND used a plural pronoun–a twofer).
    Matt/Matt S. I concur with both of you.  There are other ways you should be able to get this in (as evidence of rehab potential/future dangerousness), and just because something is collateral has not necessarily been the end of the discussion on whether it can be discussed or not.  Does this ruling mean now that the judge can say that retirement calculations (which are collateral) can be ignored by a panel?  Are there now, effectively, different levels of collateral?
    I understand the technical legal reasons why this ruling is as it was, I think there are logical/fairness gaps to these rulings.

  18. Defense Hack says:

    Some states consider it more than a mere consequence, but I digress. The argument that it should be outside of the consideration of the members comes from a position of not understanding how bad SOR is for an individual. If a member thought that a SM will serve his time in jail, take his lumps, and move on, that member is wrong. Flat out wrong. Those on the SOR have trouble finding work, but more importantly, they cannot pick their own kids up from school, take their kids to the playground, or any other place that children congregate. It subjects them to lifelong humiliation and segregation because everyone around them will know what they were convicted of, but not the facts and circumstances surrounding the actual conviction. IOW, even if a SM gets 90 days in jail for a butt slap or a drunk hook-up that no reasonable civilian DA (or Trial Counsel pre-2007) would touch, this person is still wearing a label that is applied just the same to those that lure children into their vans for horrible purposes. Panel members should know this before going into sentencing.Oh, and we need to reform SOR laws completely. SORNA does not create enough nuance to capture the intrinsic nuance of sex crimes.

  19. Zachary D Spilman says:

    I see two significant problems with this case.

    First, the Defense didn’t present evidence of sex offender registration. Rather, the accused mentioned it in his unsworn statement. It’s well settled that “the ‘unsworn statement is not evidence.’” United States v. Marsh, 70 M.J. 101, 104 (C.A.A.F. 2011) (quoting United States v. Breese, 11 M.J. 17, 23 (C.M.A. 1981)). So, anything in CAAF’s resolution of this case that indicates that actual evidence of sex offender registration is improper during sentencing is dicta.

    Second, as quoted above (with the citations omitted), Judge Ryan wrote:

    The collateral consequences of a court-martial do not constitute R.C.M. 1001 material, and while they may be referenced in an unsworn statement, Rosato, 32 M.J. at 96 (C.M.A. 1991) (finding error where a military judge precluded an appellant from mentioning collateral consequences of a court-martial –- a rehabilitation program — in an unsworn statement), they should not be considered for sentencing. United States v. McNutt, 62 M.J. 16, 19-20 (C.A.A.F. 2005); see also Barrier, 61 M.J. at 486 (noting general preference for a “contextual instruction” for matters raised in an unsworn statement “rather than outright preclusion”); Tschip, 58 M.J. at 277 (permitting military judge to instruct that administrative discharge was a collateral matter when referenced in unsworn statement and that the members had discretion to disregard the reference to the collateral matter); Griffin, 25 M.J. at 424 (citing Quesinberry, 12 C.M.A. at 612, 31 C.M.R. at 198).

    Slip op. at 8-9. But in a footnote, Judge Ryan acknowledges that R.C.M. 1001(c)(1)(B) permits the Defense to offer matters in mitigation, which are: 

    introduced to lessen the punishment to be adjudged by the court-martial, or to furnish grounds for a recommendation of clemency. It includes the fact that nonjudicial punishment under Article 15 has been imposed for an offense growing out of the same act or omission that constitutes the offense of which the accused has been found guilty, particular acts of good conduct or bravery and evidence of the reputation or record of the accused in the service for efficiency, fidelity, subordination, temperance, courage, or any other trait that is desirable in a servicemember.

    Slip op. at 7-8 n.2 (emphasis added). Judge Ryan doesn’t explicitly state that the second sentence beginning with the words “it includes” constitutes an exclusive list of matters in mitigation, likely because such a reading would lead to absurd results (e.g., the accused’s age isn’t among the enumerated factors, and youth is a well-recognized mitigating factor).

    But there’s an obvious contradiction between Judge Ryan’s conclusion that “collateral consequences of a court-martial do not constitute R.C.M. 1001 material,” and the ability of the Defense to introduce evidence (like collateral consequences of the conviction, including sex offender registration) under R.C.M. 1001 for the purpose of supporting a clemency recommendation.

    So, assuming the military defense bar doesn’t just give up on this fight, this isn’t the last we’ve seen of this issue.

  20. Zeke says:

    @stewie – 

    RY it doesn’t change much for you, for now, because you have a judge who finds a balance.  Another judge could use this to shut it off/down completely if they wanted to.

    I don’t agree.  It seems to me that Talkington is pretty clear that the accused has the right to reference SOR in his/her unsworn.  The MJ just has the discretion to then tell the members something to the effect of:  SSOR is a collateral consequence derived from the the conviction itself, and not in any way related to the sentence you are being tasked to adjudge.  The existence of SOR, if it is indeed required, is therefore irrelevant for you to consider when trying to fashion a sentence in this case.”  
    I think if a MJ were to preclude reference to SOR altogether, that would expressly not be protected by Talkington, and could be reversible error.

  21. Zeke says:

    @ AF JAG – 

    Arguing that the jury should not convict the accused of the charged misconduct because it will result in Sex Offender Registration is essentially a jury nullification argument.  And while the law permits the jury to engage in jury nullification, it DOES NOT permit overt solicitations of jury nullification from attorneys, nor instructions from the military judge advising the members about the possibility of jury nullification

    If the MJ is prohibited from encouraging nullification, then what do you make of the long-standing language at the end of the Benchbook substantive finding instruction, 2-5-12:

    Each of you must impartially decide whether the accused is guilty or not guilty according to the law I have given you, the evidence admitted in court, and your own conscience. 

    I don’t see “and your own conscience” as being anything other than an invitation for the members to engage in their right to “jury” nullification.  I don’t believe a defense counsel violates any ethical or legal standards by appealing to the members’ conscience to argue for an acquittal, either.  The community’s conscience acting as a barrier to overzealous prosecution is the primary purpose for the Anglo-American jury system in the first place.  It’s about making the government accountable to the people… ensuring the sovereign is not free to imprison a citizen for some imagined offense without first obtaining the unanimous consent of at least 12 of the governed.

  22. stewie says:

    I would argue Zeke that telling a panel that everything the accused just said about SOR? ignore it…is the functional equivalent of precluding meaningful reference to SOR.  Why would a panel consider it after that? What benefit does the accused get by mentioning it after that?
    I absolutely concur with Zach that this is as much about clemency as anything else, and the Matt(s) raise the other avenues this is relevant as well as the logical dichotomy that some things that are collateral are nevertheless protected/allowed while others are not.  And again, by allowed, I don’t mean simply “can say it in the unsworn,” but I point to the likelihood that if an accused were to mention retirement lost, and the MJ said “hey that’s a collateral consequence panel, so don’t consider it for sentence,” that I don’t think the ruling from CAAF (or a Service Court for that matter) would be the same.
    I don’t think AFJAG is saying the DC can’t effectively argue jury nullification.  I think he’s saying the MJ shouldn’t do it.  I don’t necessarily agree that’s what it is, but I think there’s a distinction in his point. I think the statement you list includes “according to the law I have given you.”  I don’t think that statement is a list of distinct paths to guilt or innocence, it’s collective…thus not quite jury nullification (although it may be flirting with jury nullification and buying it drinks).
    I agree this is by far not the last we’ve seen of the issue. 

  23. phil cave says:

    What Matt said.

  24. Tami says:

    The SOR goes directly to the heart of protection of society, which is one of the five sentencing principles the military judge instructs on. So to tell a panel to ignore the impact of SORRY because it’s a “collateral consequence” seems pretty disingenuous to me. If that is the case, then deportation,  bar from naturalization,  loss of retirement, loss of veteran’s benefits,  etc. are subject to the same instruction. Very dangerous slippery slope.
    It will soon become irrelevant that such matters can be raised as clemency, because clemency will become a relic of the past unless some court calls out Congress to tell them they can’t take away a commander’s authority to grant it.  And if an accused can’t argue “you don’t need to sentence me to a long period of confinement because I will have to register as a sex offender for the next 20 years for an ass grab, which puts a moving target on my back wherever I go, and oh by the way, will also be getting kicked out with a DD which will rob me of ALL my benefits, so I think that’s enough to send the message I will never grab ass anyone ever again,” then that just guts the entire system.  But then maybe that’s the intent.
    That being said, the defense has to do some research and introduce SOME evidence of the SOR requirements where the accused plans to live post confinement (if there is confinement).  It’s not that hard to look up the statute, print it out, then either introduce it as an exhibit or ask the judge to take judicial notice of the law. Then your client has a lot more leeway in arguing the terms of the SOR aren’t speculative.

  25. Charlie Gittins says:

    I know I am a relic and a dinosaur, but I got traction (in the days before the loons in Congress started meddling with the system), by asking the judge to take judicial notice on sentencing of the DODI so that my client to connect the dots in his unsworn statement.  I never had one say no.  But I guess those were the days before just being accused of committing a sexual offense was tantamount to being guilty in the eyes of the members and judges, based on the brainwashing they are getting from the SAPRs, the POTUS and the CMC.

  26. AF JAG says:

    So what do I make of the benchbook instruction that reminds the members to apply the law to the facts as instructed by the military judge by utilizing their own conscience WITHIN that framework?  I make of it what CAAF makes of it: that the military judge is NOT advising them of jury nullification because the military judge MAY NOT advise them of jury nullificationSee United States v. Hardy, 46 M.J. 67, 75 (C.A.A.F. 1997) (“A jury nullification instruction would provide court members with an authoritative basis to determine that service members need not obey unpopular, but lawful, orders from either their civilian or military superiors. To permit such action would be antithetical both to the fundamental principle of civilian control of the armed forces in a democratic society and to the discipline that is essential to the successful conduct of military operations”) (emphasis added).
    Resourceful defendants and their attorneys have tried every conceivable route around this immovable roadblock.  All have been thwarted.  In addition to the military appellate law citations I included in my post yesterday, without exception, the federal appellate courts will not allow a defense attorney to use her closing argument to tell the jurors about their power to nullify, or to urge them to use it. See, e.g., United States v. Muse, 83 F.3d 672, 677 (4th Cir. 1996).  Nor can the defense offer evidence that is relevant to nothing, but the justness of a conviction or acquittal, or is otherwise designed to induce the jury to nullify.  United States v. Griggs, 50 F.3d 17, (9th Cir. 1994).  This includes, most notably, any information about the sentence faced by the defendant, even if it is a minimum mandated by law.  United States v. Johnson, 62 F.3d 849, 850-51 (6th Cir. 1995).
    Furthermore, beyond being “illegal” jury nullification arguments may also be “un-ethical” in several jurisdictions.  I would carefully check your bar rules before embarking on such an argument.  I’ll cite to you, just for an example, the Ethical Opinion from the DC Bar in 2003 concluding that jury nullification arguments are both illegal and unethical as sworn officers of the Court charged to uphold the law:
    “A lawyer defending a criminal case may zealously advocate for the acquittal of his client using any evidentiary argument for which he has a reasonable good faith basis. Current legal standards strongly disfavor jury nullification and prohibit express exhortations that a jury nullify the law. Accordingly, a lawyer may not, consistent with the rules of professional conduct, expressly urge a jury to disregard the law. Nor may a lawyer disregard a ruling of the tribunal limiting the scope of permissible argument. The legal system continues, however, to permit juries to exercise the power to nullify. A lawyer may, therefore, within the bounds of zealous advocacy, advance arguments that have a good faith evidentiary basis even though those same arguments may also heighten the jury’s awareness of its capacity to nullify.”  (emphasis added).   
    Finally, while I would agree that sex offender registration laws should be more “nuanced” to either exclude “minor” sexual contact type first offenses and the like or reduce the number of years for which registration is required, BUT that’s a FAR CRY from your argument that jury nullification is an unmitigated GOOD, a “bastion” against government tyranny.   For to argue that jury nullification prevents “unfair prosecutions” is to argue that it is unfair to convict a defendant when a representative legislature has passed a statute making a certain behavior a crime, the evidence shows beyond a reasonable doubt that the defendant engaged in that behavior, and the accused has no defense to the charge.  Seems to me that’s where the REAL tyranny would lie, that of the minority (in this case, one jury or court-martial panel) over the representative will of the people as a whole, plain and simple.
    BOTTOM LINE:  I get why defense counsel and the accused would want to talk about the sex offender registration to argue that essentially “he’s been through enough” because he will now be marked as a sex offender for a specified period of time, the problem is, as CAAF states, it’s just not admissible RCM 1001(c) evidence at sentencing.  The rules matter, even at sentencing.  The government is bound by them, so too should be the accused.  In the vast sea of permissible defense evidence and arguments at sentencing, for this discrete and particular issue, The government holds the key.  Ultimately, I think Talkington should stand for the rather modest proposition that:  (1) the RCMs ultimately trump the accused’s robust rights to allocution in his unsworn statement, and that a military judge may so instruct; and (2) that evidence of Sex Offender Registration would and should only be admissible as potential “rebuttal evidence” under RCM 1001(g) if the government introduces evidence on the recidivism issue. 

  27. Tami says:

    AF JAG,
    I don’t think anyone can say with a straight face that SOR is irrelevant at sentencing.  Given that “protection society from the offender” is a principle of sentencing, how is SOR not relevant?  SOR was created for that very purpose–to put society on notice that a sex offender lives in their midst, so that they can protect themselves from being future victims by staying away from him, making him move, etc.  Of course, the SOR requirement exists based on the conviction itself, not whether the offender will re-offend.  Since SOR stays in place for a lengthy amount of time (20 years, life, etc.), then a defense attorney should be able to argue that sentencing client to lengthy confinement is not necessary to protect society from him, the SOR takes care of that by publicly outing him as a sex offender for the next 20 years of his life/rest of his life, etc.
    It behooves defense attorneys to do their research on not just the DODI, but also the state where the client intends to live after confinement (if any).  Every state has different registration requirements, so I can see a judge saying SOR requirements for Washington State are irrelevant if the client intends to live in Florida, as an example.

  28. DCGoneGalt says:

    AF JAG and Zeke:  Regardless of your opinions on whether jury nullification SHOULD be arguable/instructed on, I 100% concur with AF JAGs analysis of the relevant caselaw and ethical guidelines regarding jury nullification.  As it currently stands it is a clear no-no in the military and the vast majority of civilian jurisdictions.
    Although historically nullification has been used for good (protecting a defendant against unjust laws that are democratically unpopular) and for bad (i.e. racism weighed more heavily than evidence), I think it should be a tool that members should be able to use as a democratic check on governmental use (abuse) of authority.  In spending countless hours researching the issue a few years ago, the one proposed instruction that I have always liked was an instruction along the lines that members:  1) must acquit if the evidence does not convince them of every element beyond a reasonable doubt; 2) may convict if they are convinced beyond a reasonable doubt and are allowed to use their best judgment and consciences in reaching that determination.  As for argument on the matter, I think that opens up a Pandora’s box but it is one that I believe that is best handled by the MJ applying MRE 403 as to the evidence and defense counsel making a judgment on maintaining their credibility with a panel. 
    There are several good law review articles on the subject and a great book by Clay Conrad that was just re-released this past year by the Cato Institute.  The law review articles are “Jury Nullification:  Calling for Candor from the Bench and Bar” by Army JAG Bradley Huestis, 173 Mil. L. Rev. 68 (2002) and “Nullifying the Jury:  The Judicial Oligarchy Declares War on Jury Nullification” by Andrew Parmenter, Washburn Law Journal Vol 46, No. 2 (2007).  “Jury Nullification:  A Selective Annotated Bibliography” by Teresa Conaway, et. al., 39 Val. U.L. Rev. 393 (2004) contains dozens of fascinating articles on the subject.

  29. stewie says:

    Two issues with your final paragraph AF JAG.
    1. RCM 1001 is silent on collateral matters.  It doesn’t talk about collateral matters, it doesn’t exempt them, and in fact, the language for the defense is 1001 is VERY broad.  This isn’t black/white, it’s interpretation.  Not criticizing the rule-makers here.  You can’t write a rule that covers every path, but the some of us believe the interpretation here is just plain wrong and SOR is something that falls well within both sentencing principles (deterrence, punishment, future dangerousness) and fairness.
    2. Even if the “it’s against the rules argument” held weight, the problem is, that’s not consistent.  If collateral matters are not to be discussed during sentencing, then why do we talk about all of the other collateral matters? What makes SOR different from loss of retirement pay? Both are collateral, one is favored, one is not.

  30. Zeke says:

    My inclination is to believe that members will consider sex offender registration as being mitigating despite being told not to by the military judge.  CAAF’s decision is counterintuitive, legalistic, and to the average member defies common sense.  For that reason, I see no reason not to have your client talk about SOR, the likely impact sun his job prospects, the impacts it will have on his housing options, the impact that will have on the quality of his future neighborhoods, the impact that is likely to have on his children’s educational opportunities, and the stigma that he and his family will thereby suffer for the rest of their lives together.  When confronted with that, a judge’s instruction that “SOR is not before you for your consideration” will appear laughable.  The members might stop paying the judge any heed at all at that point… as they should.

  31. Johnny Ringo says:

    Got to agree with Zeke there.  Although I think our members are more able and willing to follow instructions “unringing the bell” than most civilian jurors, it’s impossible to unhear an accused’s unsworn comments about SOR or any other issue.  That’s why most unsworn statements contain sentence comparison information or information about administrative discharge proceedings despite the fact that DCs know the MJ will issue some type of Friedmann instruction.  It seems like the courts should stop trying to split the baby.  If the ruling is that things like SOR are wholly collateral (a point with which I don’t agree), then the government should be able to limit their introduction even through the unsworn via a motion in limine or timely objection. 

  32. stewie says:

    Impossible? No way I can go that far.  Some juries aren’t going to be sympathetic to an accused having to do SOR to begin with…being told by the MJ that it’s not a consideration at all is simply going to reinforce that bias.  Others might be on the fence, willing to give credit perhaps, but not particularly moved by it either, but when told by the MJ not to consider it, they will, well, not consider it. It could also lead to a lessened ability by the DC to sway if he/she is limited by the MJ in what arguments/evidence they can introduce.

  33. AF JAG says:

    I agree with you that CAAF’s rulings have effectively set up different tiers of “collateral” matters with retirement benefits being in a permissible category and Sex Offense Registration being in an impermissible category.  I also agree that is inconsistent.  So the question is, what do trial practitioners do about it?
    That’s where I agree with Johnny Ringo’s last point:  If (as CAAF has now ruled) Sex Offense Registration is beyond the scope of permissible RCM 1001 evidence for substantive presentation (i.e. presenting it independently outside of the unsworn statement), then YES, I would expect the government to start to bring motions in limine prior to the unsworn statement to prohibit its presentation–that only makes sense.  After all, if its not RCM 1001 evidence (again, I know that most of you here disagree with that statement, I’m just reciting what CAAF has ruled) AND if a military judge is empowered to tell members that effectively they may any mention of Sexual Offense Registration as collateral, then why shouldn’t it be excludable from the unsworn statement in the first instance?
    Of course, the problem is that this logical conclusion runs right smack dab into U.S. v. Rosato’s and U.S. v. Grill’s expansive allocution rights in the unsworn statement for the accused to talk about things that would otherwise be INADMISSIBLE at sentencing, like sentence comparison evidence.  See Grill, 48 M.J. 131, 133 (“The mere fact that a statement in allocution might contain matter that would be inadmissible if offered as sworn testimony does not, by itself, provide a basis for constraining the right of allocution”).
    So I agree, its a bit of a mess.  BUT, with the state of the law the way it is now, I think TC would be justified in bringing a motion in limine to exclude this evidence from the unsworn statement.  This would also have the ancillary benefit of avoiding an “un-ringing of the bell” situation, and avoid the jury nullification that “Zeke” seems so regrettably eager to embrace.

  34. Zeke says:

    @ AF JAG –

    avoid the jury nullification that “Zeke” seems so regrettably eager to embrace

    I think “Jury nullification” is not the evil it is often made out to be.  The Founders adopted the jury system (and it’s anemic cousin, the court-martial panel) precisely to impose the will of the people over their government, to stand against overzealous prosecutions and unjust application of the people’s law, and to be the ultimate arbiter of whether one of their own will be punished.  
    It is unethical conduct in many jurisdictions for a lawyer, as an officer of the law, to encourage the jury to exercise their sovereign right to nullify a law.  That is right, I think, even when the law is being applied unjustly.  
    But, I think it is never unethical for the jury to wield that sword of its own accord.  And I think it is not unjust for the accused, whose life, liberty, and property is in their hands, to ask them to do so.  
    The government should fear its people, as such it should fear their juries (and court-martial panels).  It should be reminded from time to time that the people, not their government, and not even their elected representatives, are the sovereign.  An alleged offense has not been proven unless and until they say it has, even if the elements of the supposed offense as laid down by their representatives have satisfied by evidence.  It is equally their right of the people and their juries to consider whatever they personally consider to be mitigating, regardless of the illogical opinions of a bunch of lawyers, judges, and elected officials.  One might even say that the jury (and court-martial) system has the added benefit of injecting common sense into the many situations where the law seeks to exclude it.  Considering SOR in sentencing is one of those places.  I agree with the legal reasoning employed by CAAF in this case, actually, but it is, nonetheless, nonsense.  

  35. stewie says:

    How about when white juries refused to convict white people accused of killing black people in the South?
    There absolutely is a danger to jury nullification in some situations.  I picked an extreme one, but not one that didn’t happen, repeatedly.  I can’t think of that as being anything other than unethical and antithetical to justice.

  36. Zeke says:

    @ Stewie –
    Touché.  Point taken.  Few things are without caveat… You’d think I’d have learned that by now given our profession.

  37. stewie says:

    It’s tricky…it’s good when we like it, bad when we don’t.