CAAF decided the Army case of United States v. Turner, __ M.J. __, No. 19-0158/AR (CAAFlog case page) (link to slip op.), on Wednesday, March 25, 2020. Considering a specification of attempted murder that failed to expressly allege that the attempt was unlawful (a necessary term because military service involves lawful killing), a majority of the court reads the specification with maximum liberality because the defense waited until after findings to object, and affirms the conviction and the decision of the Army CCA.
Judge Ohlson writes for the court, joined by all but Judge Maggs, who dissents.
CAAF granted review to determine:
Whether the specification of Charge I alleging an attempted killing fails to state an offense because it does not explicitly, or by necessary implication, allege the attempted killing was unlawful.
Specialist (E-4) Turner was charged with a specification that read:
that, Specialist Malcolm R. Turner, U.S. Army, did, at or near Clarksville, Tennessee, on or about 1 January 2015, attempt to kill with premeditation Specialist [C.SG.] by means of shooting her with a loaded firearm, causing grievous bodily injury.
The charge arose from a violent encounter involving Turner, his wife, and a the victim. Turner served with the victim in Korea, and Turner had an adulterous relationship with her that ended when she learned he was married. The victim later learned that she was pregnant, gave birth, and sought child support from Turner. In 2015, Turner and his wife drove from Colorado to Tennessee to confront the victim. During the confrontation, Turner shot the victim multiple times. He was ultimately convicted of attempted murder (the specification at issue), conspiracy to commit premeditated murder, maiming, and obstruction of justice, and sentenced to confinement for life without the possibility of parole, reduction to E-1, total forfeitures, and a dishonorable discharge. The Army CCA reversed the obstruction conviction (as factually insufficient) and conditionally dismissed the maiming charge, but affirmed the other findings and affirmed the sentence.
During the court-martial, Turner’s defense counsel objected to the attempted murder specification as failing to state an offense. However, counsel did not do so until after the members found Turner guilty. CAAF does not explicitly say that the delay was for purely tactical reasons, but it does suggest as much with a footnote quoting the Ninth Circuit’s observation that “delay in raising the issue suggests a purely tactical motivation of incorporating a convenient ground of appeal in the event the jury verdict went against the defendants.” Slip op. at 9 n.7 (citation omitted). That’s problematic because CAAF’s precedent strongly favors earlier objections, even though the Rules for Courts-Martial do not require an earlier objection to the failure of a specification to state an offense (something Judge Maggs highlights in his dissenting opinion). Specifically, when a specification is challenged at trial, CAAF reads the specification narrowly; but when it is first challenged after trial, it is read with “maximum liberality.” Slip op. at 7.
The result in this case turns on the majority’s conclusion that the defense objection was made after trial, and so the maximum liberality standard applies and the conviction is affirmed. Judge Ohlson’s majority opinion does not explicitly say that an earlier objection would have led to a different result, but it strongly implies that. Judge Maggs’ dissenting opinion, however, is clear that the specification fails under a narrow reading:
I agree with the Court’s implication that apart from the “maximum liberality” standard, the specification fails to allege criminality either expressly or by necessary implication.
Diss. op. at 3. In other words, Turner’s conviction of attempted murder is based on a deficient specification, but the conviction is affirmed because Turner’s defense counsel waited until after findings to object.