On May 8, CAAF denied review in Easterly, and denied the Hutchins writ petition without prejudice.

Easterly involves a decision of the NMCCA finding harmless error in the military judge’s denial of a defense motion for relief from unlawful command influence based on the Heritage Brief (a presentation given numerous times by the Commandant of the Marine Corps). I discussed Easterly in this post, and Phil discussed the case in this post.

Curiously, CAAF’s daily journal entry states (without explanation) that Judge Ryan did not participate in Easterly.

In the long-running Hutchins (CAAFlog news page; CAAFlog case page), Sergeant Hutchins has raised multiple UCI-based objections to the personnel of the court-martial, and then sought a writ of mandamus directly from CAAF. Denying the request, CAAF ruled:

Misc. No. 14-8016/NA.  Lawrence G. HUTCHINS III, Petitioner v. Michael B. RICHARDSON, Colonel, United States Marine Corps, In his official capacity as Military Judge, and United States, Respondents.  On consideration of the petition for extraordinary relief in the nature of a writ of mandamus and prohibition, it is ordered that said petition is hereby denied without prejudice.

24 Responses to “CAAF dodges two Marine Corps UCI cases”

  1. Brian Bouffard says:

    The Easterly denial of review is grotesquely disappointing.  No accountability for Gen Amos.

  2. stewie says:

    Dodges? I don’t get the need for the somewhat loaded headline.  They denied review (rightly or wrongly can be debated and should be, reviewing your prior post, I’d lean towards rightly simply because it was a bad case for this argument), but “dodges?” Maybe you didn’t intend the negative implication there, I don’t know.

  3. k fischer says:

    Stewie, 
     
    The term “dodge” is defined as avoiding something by a sudden quick movement.  Denying review certainly is the quickest movement CAAF can make to avoid litigating Easterly on appeal, no?  Dodging something isn’t necessarily a bad thing.  For instance in the feelgood movie of 2004 “Dodgeball,” Average Joe gym owner played by Vince Vaughn, made Ben Stiller bleed his own blood by dodging dodge balls, saved Average Joes, and helped Steve, a mentally ill man, come to grips with the fact that he was indeed not a pirate.

  4. stewie says:

    In Dodgeball yes, and if Steve wasn’t a pirate, what is Peter going to do with all that treasure?  And actually, Ben Stiller’s real-life wife made him bleed his own blood, not Steve, and her character wasn’t gay, she was bi.
     
    Not sure it applies the same in discussing CAAF denials. 

  5. soonergrunt says:

    I learn so much on this website.

  6. Zachary D Spilman says:

    I’ll acknowledge that the use of the word dodges implies that I think CAAF should have reviewed both of these cases. I used the word because I think CAAF should have reviewed both of these cases.

    My feelings about Easterly (both at the trial stage and at the appellate stage) are pretty clear in my analysis in this post (same as the post linked above). And my post titled “The NMCCA still avoids the tough question about the Heritage Brief,” should make it obvious that I think the NMCCA itself ultimately dodged the bigger issue in Easterly.

    As for Hutchins, CAAF avoided the UCI issue (with the same factual basis) when it reversed the findings in United States v. Hutchins, No. 12-0408/MC, 72 M.J. 294 (C.A.A.F. Jun. 26, 2013) (CAAFlog case page). Considering the court denied the petition without prejudice, I think describing this as a dodge is just stating the obvious.

  7. RKincaid3 (RK3PO) says:

    This was a “dodge” in the classic and literal sense.  To conclude otherwise is to imply that commanders like Gen’l Amos can’t or don’t always do the right thing and need to be replaced by prosecutors.  Lord knows we can’t send that message…

  8. stewie says:

    No, it was a decision. “Dodge” implies cowardice.  This was a decision.  One could argue a wrong decision, but they did what they do in tons of other cases where they decline to grant review.  Are those all “dodges” too?

  9. DCGoneGalt says:

    I take the decision as a “dodge” as well. 
     
    Stewie:  You can certainly make a decision to not hear a case based on the merits.  While that may be the case here, I believe it certainly believe the facts justify them hearing the cases and that they “dodged” the cases to avoid doing what they should have done (and what sadly will never occur) which was to hold Gen Amos accountable for his UCI Magical Mystery Tour.

  10. k fischer says:

    Stewie, 
     
    You know what Stewie?  I like you.  You’re not like all the other defense hacks here, trolling on CAAFlog.  Oh, oh, don’t get me wrong, ya’ know. They’re fine people, they’re good Americans, but they’re content to sit back, maybe, watch a little Mork & Mindy on Channel 57.  Maybe, kick back a cool Coors 16-ouncer.  They’re good fine people Stewie, but they don’t know what the rapists are doing to the military.
     
    And, I think one may dodge without being branded a coward, and concur with the other defense hacks that this was a dodge.  Kind of like when my wife asks me about how the clothes she is wearing makes certain parts of her body look.  I might dodge the question, not because I am a coward, but because it took her two freaking hours to get ready and I am not about to inform her that I can see her undergarments under her white linen pants because I don’t want to be late.  So, perhaps CAAF doesn’t want to open Pandora’s box because think about how many sexual assault convictions with punitive discharges have occurred since the Heritage brief.  That’s not cowardice.  That seems more like dodge for laziness or prudence, rather than cowardice.
     
    And good work on the Dodgeball references.  You, along with RK3PO, are invited to go turkey hunting if you ever find yourself at Ft. Benning.

  11. stewie says:

    Agree to disagree, I just don’t like pejoratives or assuming bad intent when just plain being wrong works just as well. Maybe CAAF just thinks because of the myriad concessions by defense at trial, this case really isn’t a good case for UCI? 
    And I will say I lean defense a lot more than government, but perhaps I only qualify as defense hack light?
    Perhaps strawberry Kool-Aid versus cherry?
    I prefer to do my hunting in the supermarket.  Guaranteed kill every time.

  12. phil cave says:

    I think avoided might be the better term.
    Appellate courts do that all the time for various reasons not necessarily going to the merits.  I frequently cite to this piece on the Supremes when they don’t grant cert.  And also I refer to Patterson v. Mclean Credit Union regarding Congressional silence or declination to act.
    There are many reasons why Congress or other form of “legislator” might not act on a subject.  And lack of action is not approval.  Patterson v. McLean Credit Union, 491 U.S. 164 (1989).
    [D]enial of a petition for writ of certiorari . . . simply means that fewer than four members of the Court deemed it desirable to review a decision of the lower court as a matter “of sound judicial discretion.” A variety of considerations underlie denials of the writ, and as to the same petition different reasons may lead different Justices to the same result.. . . Inasmuch, therefore,  all that a denial of a petition for a writ of certiorari means is that fewer than four members of the Court thought it should be granted, this Court has rigorously insisted that such a denial carries with it no implication whatever regarding the Court’s views on the merits of a case which it has declined to review. The Court has said this again and again; again and again the admonition has to be repeated.  United States v. Carver, 260 U.S. 482 (1923).  See also, Evans and Jordan v. Stephens, et. al., 544 U.S. 942, n.1 (2005)(“Nothing is more basic to the functioning of this Court than an understanding that denial of certiorari is occasioned by a variety of reasons which precludes the implication that were the case here the merits would go against the petitioner”); and see, Stern & Gressman, Supreme Court Practice, 7th ed., para. 5.7
    Avoidance is not a pejorative, and merely notes a “decision” not to address the issue.
     
     
     
     
     

  13. RKincaid3 (RK3PO) says:

    “…merely notes a “decision” not to address the issue.”

    I guess that is my point and concern–why not,especially now, of all the politically visible and frustrating times in the history of the UCMJ, fail to address this burning issue (UCI)–especially in a case with so visible a display of command indifference to due process rights, law and procedural fairness?  And, no less, in a case involving an individual commander who, per several Stars and Stripes reports months ago, allegedly engaged in or benefitted from the destruction of evidence (video/audio tapes) of his comments so they couldn’t be used by defense attorneys as Exhibit A of their UCI motions. 
     
    Sure, I get it that declining to take a case has many reasons and I am tracking that the courts don’t want people to speculate about why a decision to decline a case is made.  But it must then be expected that in a vacuum, all manner of reasons can be proffered by pundits without credible rebuttal–for any number of reasons, some legit and some whacked out conspiracy theories. But really, can the appeals courts really expect to get a pass from the public record when they “avoid” for whatever reason a decision this important in so visible a case during this troubling and challenging time?
     
    From my perspective, I offer this systemic observation:   Declining to take this case keeps the dispute within the established UCMJ channels (deffertial to commanders) and out of the civilian appellate system (absent some sort of collateral attack–for which it is likely too late to pursue–please correct me on this point if I am incorrect) and thus fairly eliminates any chance for substantive civilian judicial review of the issues and the law.  Why, I venture to say that if the SCOTUS actually could consider this case (which it now can’t due to the lack of a jurisdicional pre-requisite: CAAF review and decision) it would be loathe to find General Otis’s conduct simply a variation of the traditionally lawful “rough justice” that the SCOTUS has historically tolerated out of deference to congressional authority.  Had they the opportunity to hear this case, I dare say they would intervene and act where the commander-centric system failed to act as it cannot be said with a straight face that UCI of the nature evinced in the rejected cases is in any way not itself a violation of the UCMJ by a commander.  I doubt seriously that the SCOTUS would tolerate such a violation as mere “rough justice”–essentially holding that a commander may violate the UCMJ to enforce the UCMJ.  Such an outcome reveals a fundamental difference between a commander-centric justice/discipline hybrid system and a true justice system, in my opinion. 
     
    In any event, whatever the reason CAAF declined review, it certainly CANNOT be said with any pretense to credibility that the calculation didn’t include a cold hard analysis of the down side to taking the cases–regardless of how CAAF ultimately decided the cases.  On the one hand, take the cases, uphold Amos’s conduct and they send a terrible message to commanders everywhere about how far they can go and get away with it, guaranteeing in the process an appeal to the SCOTUS.   If CAAF took the cases and rules against Amos’s conduct, they would stifle commander initiative and publicakly embarrass one commander mightily.   By taking the cases, they open up other avenues for external review–something completely foreclosed by “deciding” for whatever reason to simply not take the case.  Simple cost-benefit analysis:  too much risk to taking the cases and no downside to not taking the cases since not taking them really means nothing–legally. 
     
    It is this insulation of the UCMJ and its functions and operations from the traditional American model of “justice” (independent oversight with eyes blindfolded as to the outcome to ensure a fair process–to all parties) that is most troubling to me and many others. It is and has been the thorn in the side of the UCMJ since its adoption; and it was a thorn in the side of the Articles of War which preceded the UCMJ.  Every major revision to the Articles of War and of the UCMJ were preceded by public outrage at how commanders’ managed their authority.  And Congress responded by implemening changes which commanders opposed and resisted. This time is no different.  And all other evolutionary changes to the UCMJ did no bring about the end of our military as predicted then and as predicted now.  In fact the military became stronger–unrivaled on the world stage. 
     
    Unless and until Congress is ready to make systemic changes to the UCMJ–as long military justice remains a hybrid mix of “justice” and “discipline”–and as long as commanders are allowed to act virtually unilaterally in deciding whom to prosecute and for what reasons and when, and as long as those command decisions and actions are insulated from substantive, meaningful independent oversight and review–“justice” as a concept will not be a central component of the UCMJ.  And in a great many cases–justice won’t be perceived as the result of UCMJ actions–at least from the perspective of public confidence in the system or its outcomes.  
     
    And remember, it is that public hue and cry that has caused this current debate–so we are being watched by the people we serve. 

  14. k fischer says:

    RK3PO, 
     
    Perhaps, this isn’t the right case as Stewie stated above.  Perhaps CAAF is waiting for that case where even Claire McCaskill would shake her head and say, “Wow.  The Commandant went off the reservation with that brief and I don’t think the accused got a fair trial.”  
     
    And, no, I don’t want to buy your bridge.  I’m just keeping the faith, Bro.

  15. RKincaid3 (RK3PO) says:

    k fischer:
     
       Ha.  Funny.  But I must ask–if this isn’t the right case–then what will be?  How shocking must the facts of that case be? 
     
       Especially when apparently the only thing that will cause McCaskill to shake her head and say, “Wow.  The Commandant went off the reservation with that brief and I don’t think the accused got a fair trial” is when the accused is NOT convicted–especially in a sex assault case.  McCaskill is splitting the baby–she wants to push the myth of “rape culture” for political reasons while simultaneously currying favor with military leadership. 
     
        Given that, I just don’t believe we will get balanced judgment–or plan for systemic change–on this issue out of her (or Congress) so long as there is an overriding desire to serve to political necessities which thus requires avoiding any necessarily tough decisions that while necessary, are less necessary than preserving the status quo while making a big ruckus about how things must change. 
     
       Thanks for keeping the faith, bro.  But why do you think I am selling a bridge?  I am selling the rock-solid foundation on which a bridge should be built–one that won’t collapse under its own weight or as the result of shifting political sands.  Congress is selling the infamous bridge that Jack built…and I am not buying it or selling it.  :)

  16. k fischer says:

    RK3, 
     
    Based on my statement:

    Perhaps CAAF is waiting for that case where even Claire McCaskill would shake her head and say, “Wow.  The Commandant went off the reservation with that brief and I don’t think the accused got a fair trial.”  

     
    You should have responded with, “If you believe that Claire McCaskill would ever think something like that, then I have a bridge I could sell you.”  I was thinking two steps ahead of you.

  17. k fischer says:

    Anybody see this story about US v. Camacho at Ft. Bragg over the transom?  So, I am assuming that there is going to be a huge UCI motion in this case particularly if the Article 32 adamadantly argued for a dismissal of all charges and stated emphatically that “this thing needs to end today.”  I would attempt to interview the convening authority and the sja and request that they explain what evidence they reviewed to recommend that the CA disregard the 32 officers recommendation.  I would ask the CA if he was concerned about being promoted based on the actions of Claire McCaskill and file a motion that he be disqualified as an de facto accuser.  Does anyone know the backstory on this? 

  18. RKincaid3 (RK3PO) says:

    k fischer:
     
       Shame on me for not keeping up with you. I am so not worthy!!!  :).  Thanks for letting me play in your sandbox though!  
     
    As for your post about the Camacho case–I am with your COA!  I would like to see that play out.  

  19. k fischer says:

    Hopefully his TDS attorneys are pursuing it.  The trial is scheduled for June 9-11.  He doesn’t have civilian counsel.  

  20. DCGoneGalt says:

    No matter how bad the evidence, the CCs and JAGs seem to have become Art 120 matadors waiving everything to trial.  Pre-trial advice:  OLE!

  21. k fischer says:

    DCGG, 
     
    That’s why on a case like this in today’s military, due dilligence would require the defense counsel to interivew the SJA, so he or she could explain why the Article 32 officer was wrong, particularly if the pretrial advice met the minimum required by the RCM.

  22. DCGoneGalt says:

    k fischer:  Been there and done that. 
     
    SJA:  [with a zombie-like stare] “There was some evidence for every element of every specification.  Yes, I am aware the only evidence is her word.  Yes, I am aware that there is evidence contradicting her word.  However, there is evidence for every specification.”
     
    CC:  “I recall reviewing the file.  I do not recall specifics.  I recall there was evidence for every charge.  I do not recall the specific evidence.  I believe there was sufficient grounds to refer.  I believe every victim and accused deserve their day in court.”
     
    One commander was so ridiculous in his double-speak that he actually had myself and another defense attorney laughing during our interview.  It was like questioning a sexual assault talking point robot.

  23. Charlie Gittins says:

    “a sexual assault talking point robot” — Now that made me laugh out loud.  Nice turn of a phrase DCGG!

  24. JBodow says:

    If you can dodge a wrench, you can dodge a ball!