The Washington Post and AP are reporting that LTCOL Jordan, the former commander of the Joint Interrogation Briefing Center at Abu Ghraib, was acquitted of the most serious charges. Most sources are reporting LTCOL Jordan was found guilty of a single specification of disobeying an order to not talk about the investigation of abuse at Abu Ghraib. Sentencing is scheduled to begin this afternoon.
Anyone at the verdict announcement? Any inside information/ preview available on the likely sentencing strategy by either side?
Tuesday, August 28, 2007
Verdict in Abu Ghraib Trial of Lt Col Jordan
Pick of the Week: Ashby and Schweitzer headed back to NMCCA
The long and tortured sage of United States v. Schweitzer and United States v. Ashby is not over yet. They may have to recall a certain Marine Major to re-litigate these. On May 10 and June 27, the N-MCCA decided Schweitzer and Ashby, respectively. For those that don't remember the tortured saga of these two Marine aviators a few words will refresh your recollection, EA-6B Prowler meets ski gondola in Aviano, Italy.
Ashby and Schweitzer ultimately pled guilty to relatively minor charges for the 1998 offenses, but more than a year after the tragedy in the Italian Alps (1999). A year later the sentences were approved by the convening authority (2000). Two to three years later the defense counsel filed their briefs (2002 and 2003). The government filed answers in 2003 and 2004. And, as noted above, N-MCCA expeditiously decided the cases in . . . . 2007. As one of our astute commenters noted, the Schweitzer and Ashby opinions include the following quote, "A sentence should not be disturbed on appeal, 'unless the harshness of the sentence is so disproportionate as to cry out for sentence equalization.' United States v. Usry, 9 M.J. 701, 704 (N.C.M.R. 1980)." Glad to see someone thought through including that quote in those particularly tortured cases. CAAF should grant sentence relief just for delaying the case, yet again. Considering the six months confinement/dismissal that one officer received and dismissal that the other officer received, any meaningful relief would essentially be a pardon and/or windfall for those officers. I know some N-MCCA court clerks, please tell me you guys didn't drop that quote in there?
Monday, August 27, 2007
Upcoming training
We previously noted that CAAF would be holding an orientation program for new appellate counsel on 6 September.
Here's another date to add to your calendar. On Friday, 19 October the Judge Advocates Association is presenting a one-day appellate advocacy seminar at the George Mason University School of Law.
Sunday, August 26, 2007
I don't understand the used book market
I occasionally search abe.com for military justice books I would like to own but don't. (If anyone knows how I can buy a copy of Colonel Snedeker's A Brief History of Courts-Martial or Homer Moyer's Justice and the Military, please let me know.)
In making one of my periodic quixotic quests recently, I came across something that I find very odd. In 2000, William S. Hein & Co. republished the Navy OJAG's incredibly useful Index and Legislative History, Uniform Code of Military Justice. You can still buy it from Hein for $115, though the need to do so has been largely supplanted by the Library of Congress's free on-line file featuring the same material. But suppose I want to take it to the beach with me for some light sea-side reading, so I really want to buy the book. Since I can get a new copy from Hein for $115, why would I pay $318.47 for a used copy? It's not like it's signed by Professor Morgan.
Six copies of the Index are available on abe.com from three different book dealers. Every single one costs more than a new copy from Hein. I'm not a Law and Economics disciple, but I would have thought that the marketplace would be sufficiently rational to prevent such bizarre pricing. Can anyone explain this one to me?
Saturday, August 25, 2007
New military justice case book
Those of you who teach military justice courses may be interested in a new case book published by LexisNexis: Military Justice: Cases and Materials. The authors are Gene Fidell, Beth Hillman, and me. Here's a link to the publisher's description of the book.
Inappropriate sentence appropriateness standard
In 2005, CAAF reversed a sentence appropriateness holding by NMCCA. United States v. Baier, 60 M.J. 382 (C.A.A.F. 2005). In that case, the Navy-Marine Corps Court had written, in part: "When reviewing a sentence it is important to consider the sense of justice of the community where the crime was committed which should not be disturbed unless 'the harshness of the sentence is so disproportionate to the crime as to cry out for equalization.' Rojas, 15 M.J. at 919." United States v. Baier, No. NMCCA 200200476, slip op. at 2 (N-M. Ct. Crim. App. Oct. 23, 2003) (per curiam). Wrong, ruled CAAF. That language "is legally incorrect. A Court of Criminal Appeals must determine whether it finds the sentence to be appropriate. It may not affirm a sentence that the court finds inappropriate, but not 'so disproportionate as to cry out' for reduction." In footnote 15 of its Baier opinion, CAAF also observed that the legally erroneous "language that the lower court quoted originated in United States v. Usry, 9 M.J. 701, 704-05 (N.C.M.R. 1980)."
What a surprise it was, then, to see United States v. Usry, 9 M.J. 701, 704 (N.C.M.R. 1980), cited in a March 2007 NMCCA opinion for the following proposition: "A sentence should not be disturbed on appeal, 'unless the harshness of the sentence is so disproportionate as to cry out for sentence equalization.'" United States v. Ryan, No. NMCCA 200401577, slip op. at 8 (N-M. Ct. Crim. App. March 29, 2007).
(The Ryan case, by the way, reads like an excerpt from the screenplay of A Few Good Men. Corporal Ryan was a squad leader for the Marine Security Force at Guantanamo. He was convicted of maltreating his subordinates in various ways -- perhaps inspired by the Code Red lore from the silver screen.)
CAAF wasted little time calling NMCCA's error to that court's attention. Ryan filed a petition for grant of review on 29 March 2007. United States v. Ryan, No. 07-0601/MC, __ M.J. ___ (C.A.A.F. March 29, 2007). His counsel obtained an enlargement to file the supplement not later than 30 July 2007. United States v. Ryan, No. 07-0601/MC, __ M.J. ___ (C.A.A.F. June 29, 2007). CAAF then turned around the case in little more than three weeks, affirming NMCCA's ruling on the findings, but setting aside its decision on the sentence. United States v. Ryan, No. 07-0601/MC, __ M.J. ___ (C.A.A.F. Aug. 23, 2007) (summary disposition). CAAF ruled: "The record of trial is returned to the Judge Advocate General of the Navy for remand to the Navy-Marine Corps Court for a new sentence appropriateness review in light of United States v. Baier, 60 M.J. 382 (C.A.A.F. 2005)."
I don't have access to Shepard's Citations right now, but presumably a cite to Baier pops up when Shepardizing Usry. How did Usry make it into an opinion issued more than two years after Baier?
New NMCCA published decision
NMCCA released a published opinion on 23 August. United States v. Bredschneider, __ M.J. ___, No. NMCCA 200700025 (N-M. Ct. Crim. App. Aug. 23, 2007). But at the moment it appears to be available only on NKO and not on the court's publicly available web site. As a service to our readers who don't have access to NKO, here's a link to the opinion.
Okay, now that everyone can read it, let's discuss it, shall we?
In Bredschneider, the Navy-Marine Corps Court reasonably concludes that a 7-year delay between completion of the trial and docketing at NMCCA was facially unreasonable. Bredschneider, slip op. at 2. (This means that the case languished in limbo longer than my daughter has been alive. It therefore failed what I shall henceforth call the Shannon Standard.) In this case, the government even conceded that the delay was unreasonable and without excuse. Id., slip op. at 3. But NMCCA concludes that the final two Barker v. Wingo factors militate against the defense. First, at no point before the case finally reached NMCCA did Bredschneider complain about the delay. Second, and of far greater importance to the Navy-Marine Corps Court, the court found no prejudice resulting from the delay. While Bredschneider claimed that he had been denied employment opportunities at Meijer’s, Lowes, and Wal-Mart as a result of his lack of a DD-214, the court clearly disbelieved this assertion. It pointed out that the record of trial contained information indicating that Bredschneider planned to take over his father's business, and Bredschneider's affidavit indicates that he did so, albeit on a part-time basis. The court also contrasted this case with United States v. Jones, 61 M.J. 80 (C.A.A.F. 2005), where CAAF found prejudice due to Jones' inability to even be considered for employment due to his lack of a DD-214. In that case, Jones presented affidavits from relevant officials at a trucking company to establish the impact of his lack of a DD-214. In Bredschneider, on the other hand, the defense relied solely on appellant's own affidavit. Not good enough, ruled NMCCA, citing United States v. Gosser, 64 M.J. 93, 98 (C.A.A.F. 2006) (per curiam). In Gosser, in a portion of CAAF's per curiam opinion that appears to be joined only by Chief Judge Gierke and Judge Baker, CAAF wrote: "We conclude that Appellant has failed to substantiate any claim of prejudice. Appellant relies solely on the assertions of his defense counsel in post-trial clemency submissions to the convening authority. He has provided no substantive evidence from persons with direct knowledge of the pertinent facts, nor is there adequate detail to give the Government a fair opportunity to rebut the contention." Actually it appears from footnote 21 of the Gosser opinion that the defense was also relying on a post-action affidavit from Gosser himself. Usually such an affidavit, which if believed would provide the basis for relief, would at least entitle the defense to a DuBay hearing under United States v. Ginn, 47. M.J. 236 (C.A.A.F. 1997). But the Gosser per curiam and the published Bredschneider case appear to recognize a Ginn exception for claims in appellants' affidavits supporting the prejudice prong in a Moreno analysis.
Okay, now moving back to Bredschneider. Despite its finding of no prejudice, NMCCA holds that the delay violated the Fifth Amendment's due process clause:
We conclude that over seven years to docket this 77-page, fairly uncomplicated record of trial is egregious. Moreover, the lack of any explanation by the Government for this extraordinarily long delay weighs heavy in our analysis. Tolerating such a delay would adversely affect the public’s perception of the high standards of our military justice system. Accordingly, we find that the appellant was denied his due process right to speedy review and appeal, even without a specific showing of significant prejudice.
Bredschneider, slip op. at 4.
The court then tells us that "[b]ecause we are not convinced beyond a reasonable doubt that the due process violation in this case was harmless, we will grant relief." Id., slip op. at 5. Ultimately, the court sets aside 6 of the 18 months of confinement that Bredschneider presumably already served some 6 years ago. Id., slip op. at 9. But the court also affirmed forfeiture of all pay and allowances. In light of that, will Bredscheider actually receive any meaningful relief from the retroactive invalidation of 6 months of confinement? Perhaps, under the doctrine that no more than 2/3 of pay may be forfeited unless the accused is in confinement. See United States v. Warner, 25 M.J. 74 (C.M.A. 1987); R.C.M. 1107(d)(2)(discussion). If Bredschneider actually served more than 12 months of confinement before being placed on appellate leave, he may have a claim to 1/3 of the pay of an E-1 for that period. If not, then the Bredschneider opinion may be vulnerable to attack at CAAF for awarding a meaningless remedy. See United States v. Pflueger, 65 M.J. 127 (C.A.A.F. 2007).
But wait, there's more. Have you lost sleep wondering whether those M80 firecrackers in your garage subject you to liability under Article 134 for possession of an unregistered firearm? Well rest easy tonight knowing that NMCCA set aside Bredschneider's guilty plea to this offense. The relevant federal statute, 26 U.S.C. § 5845(f), excludes from its reach destructive devices that are "neither designed nor redesigned for use as a weapon." So, NMCCA assures us, "a device that explodes is not covered by the statute merely because it explodes. Statutory coverage depends upon proof that a device is an explosive plus proof that it was designed as a weapon." Bredschneider, slip op. at 7 (quoting United States v. Hammond, 371 F.3d 776, 780 (11th Cir. 2004)). The providence inquiry in Bredschneider's case did not include any "discussion or inquiry regarding whether the M80s were designed for use as a weapon." Bredschneider, slip op. at 8. The Navy-Marine Corps Court set aside the guilty plea on this basis, but emphasized that its holding was limited to "requiring that in order to support a conviction under 26 U.S.C. § 5861(d), military judges must inform the accused and obtain admissions establishing that the alleged unregistered firearm, in this case M80 firecrackers, was designed for use as a weapon." Id. This is an interesting standard, since it appears to go to the manufacturer's intent rather than the accused's.
Having wiped out Bredschneider's conviction for the offense of possessing four firecrackers, NMCCA proceeds to apply those abominations of the military justice system: United States v. Peoples, 29 M.J. 426 (C.M.A. 1990), and United States v. Sales, 22 M.J. 305 (C.M.A. 1986). This is one of those rare cases in which I can't complain about a court's application of Sales and Peoples to support upholding the sentence as originally adjudged. The offense that was at issue is truly insignificant. And, assuming that the relief granted for the post-trial delay is meaningful and not illusory, that revision of the sentence more than offsets any additional time Bredschneider might have received as the result of his heinous firecracker offense.
We may not have seen the last of Bredschneider. Presumably there is some Navy or Marine Corps appellate counsel out there right now listening to muzak while holding on DFAS's customer service line in an attempt to figure out whether the Navy-Marine Corps Court's decision will put any money back in Bredschneider's pocket or whether it was instead a cruel hoax purporting to retroactively restore six months of Bredschneider's liberty that were irretrievably lost. If it was the latter, Bredschneider's supplement to his petition for grant of review should be more compelling than most.
Thursday, August 23, 2007
For your reading pleasure
1. Here is a link to LtGen Mattis's letter dismissing charges in United States v. Sharratt that we discussed here.
2. Here is a link to the News Media & the Law article about the NIMJ docket project that we discussed here.
3. Here is a link to Dana Milbank's account of yesterday's proceedings in the United States v. Jordan court-martial at Fort Meade.
Wednesday, August 22, 2007
LtGen Mattis's letter dismissing charges in United States v. Sharratt - UPDATED
We in the military justice blogging industry are a collegial bunch. Sacramentum has written about a very moving letter (Update: available here) from General Mattis to a Marine who had gone to an Article 32 for unpremeditated murder arising from the deaths of 24 Iraqis at Haditha in November 2005. Sacramentum has asked that I post the letter on CAAFlog.com. As Sacramentum observes, it is well worth the read.
In the meantime, does anyone know who General Mattis's SJA is?
Considering H.R. 3174
I remain an enthusiastic support of H.R. 3174, the aptly-named Equal Justice for Our Military Act of 2007. The equality point works in either of two directions: the bill would provide servicemembers with an ability to seek cert more equal to that of civilian criminal defendants and it would provide servicemembers with an ability to seek cert more equal to that of alleged unlawful enemy combatants tried by military commissions. Both of those classes can seek cert as the result of ANY criminal conviction. H.R. 3174 would broader servicemembers' ability to seek cert, though even under this legislation, servicemembers receiving sentences insufficient to trigger the CCAs' jurisdiction would be barred from seeking Supreme Court review unless the relevant Judge Advocate General happens to refer the case to the CCA.
The legislation would help to fix the grossly gerrymandered cert jurisdiction established by the Military Justice Act of 1983. That legislation guaranteed the prosecution a path to the Supremes (through the vehicle of a specified issue to CAAF followed by a cert petition) while denying such a path to servicemembers in the huge majority of military justice cases that CAAF doesn't review. That legislation also strongly favored the respondent (almost always the prosecution) in extraordinary writ cases, making it possible to seek cert in such cases only where CAAF has granted extraordinary relief. So this legislation would help to level the playing field. It's the right thing to do. And history teaches us that the additional burden on the various military appellate shops and on the Supreme Court would be minimal.
But what would the legislation's likely jurisprudential effect be? Interestingly, the two most likely answers are: (1) none; or (2) make the law more favorable to the prosecution.
As we have previously discussed, there have been only 8 cases under the Military Justice Act of 1983 in which the Supreme Court has heard oral argument on a cert petition to CMA/CAAF. So the odds are small that there would be a sudden tidal wave of cert grants even if H.R. 3174 were to become law. Most likely, either every cert petition in the expanded pool will be denied or there will be an occasional grant, vacate and remand (GVR), resulting in some individual servicemember obtaining a better outcome on the basis of some other newly announced Supreme Court opinion. See, e.g., O'Connor v. United States, 535 U.S. 1014 (2002) (GVRing for further consideration in light of Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002)); Goodson v. United States, 471 U.S. 1063 (1985) (GVRing for further consideration in light of Smith v. Ilinois, 469 U.S. 91 (1984)).
Now let's move to the less likely scenario: the Supreme Court grants cert in one or several cases that wouldn't have previously fallen within its cert jurisdiction. The likely jurisprudential effect would be a windfall for the prosecution. Since the Military Justice Act of 1983 took effect, the Supreme Court has been more prosecution-friendly than has CMA/CAAF. Consider, for example, Davis v. United States, 512 U.S. 452 (1994). Both CMA and the Supremes ruled against the accused. But the Supremes did so on terms far more beneficial to the prosecution. CMA had ruled that when a suspect undergoing custodial interrogation makes an ambiguous reference to counsel, the interrogator must stop and clarify whether the suspect wants a lawyer. The Supremes, on the other hand, said that there is no need to clarify; the interrogator can bull right ahead unless there is an unambiguous request for counsel. In United States v. Scheffer, 523 U.S. 303 (1998), CAAF had ruled that an accused has a Sixth Amendment right to attempt to lay a foundation to introduce an exculpatory polygraph result. That's a fairly modest holding, yet the Supremes stepped in to say no, the Constitution doesn't require an exception to the President's flat prohibition of polygraph results at courts-martial. And, of course, we all know what happened in Clinton v. Goldsmith, 526 U.S. 529 (1999). So unless you are the only person on the planet who is personally invested in the Appointments Clause and the de facto officer doctrine, see Ryder v. United States, 515 U.S. 177 (1995), the Supremes have been far more hospitable to the prosecution than has CMA/CAAF.
And while both the Supremes and CAAF have seen significant personnel shifts since Goldsmith (only one current CAAF judge was even on the court in 1999, and he didn't participate in that decision), there can be little doubt that the currently constituted Supreme Court is more friendly to the prosecution than the currently constituted CAAF.
So any case that reaches the Supremes under H.R. 3174's expanded jurisdiction carries the prospect of fixing the law in a more prosecution-friendly manner than would have resulted if CAAF were to decide the issue in a later case.
It probably isn't the objective of those supporting H.R. 3174 to move the law in a more prosecution-friendly direction (it certainly isn't mine), but that would be a not-improbable outcome were H.R. 3174 to become law.
Tuesday, August 28, 2007
Verdict in Abu Ghraib Trial of Lt Col Jordan
Pick of the Week: Ashby and Schweitzer headed back to NMCCA
The long and tortured sage of United States v. Schweitzer and United States v. Ashby is not over yet. They may have to recall a certain Marine Major to re-litigate these. On May 10 and June 27, the N-MCCA decided Schweitzer and Ashby, respectively. For those that don't remember the tortured saga of these two Marine aviators a few words will refresh your recollection, EA-6B Prowler meets ski gondola in Aviano, Italy.
Ashby and Schweitzer ultimately pled guilty to relatively minor charges for the 1998 offenses, but more than a year after the tragedy in the Italian Alps (1999). A year later the sentences were approved by the convening authority (2000). Two to three years later the defense counsel filed their briefs (2002 and 2003). The government filed answers in 2003 and 2004. And, as noted above, N-MCCA expeditiously decided the cases in . . . . 2007. As one of our astute commenters noted, the Schweitzer and Ashby opinions include the following quote, "A sentence should not be disturbed on appeal, 'unless the harshness of the sentence is so disproportionate as to cry out for sentence equalization.' United States v. Usry, 9 M.J. 701, 704 (N.C.M.R. 1980)." Glad to see someone thought through including that quote in those particularly tortured cases. CAAF should grant sentence relief just for delaying the case, yet again. Considering the six months confinement/dismissal that one officer received and dismissal that the other officer received, any meaningful relief would essentially be a pardon and/or windfall for those officers. I know some N-MCCA court clerks, please tell me you guys didn't drop that quote in there?
Monday, August 27, 2007
Upcoming training
We previously noted that CAAF would be holding an orientation program for new appellate counsel on 6 September.
Here's another date to add to your calendar. On Friday, 19 October the Judge Advocates Association is presenting a one-day appellate advocacy seminar at the George Mason University School of Law.
Sunday, August 26, 2007
I don't understand the used book market
I occasionally search abe.com for military justice books I would like to own but don't. (If anyone knows how I can buy a copy of Colonel Snedeker's A Brief History of Courts-Martial or Homer Moyer's Justice and the Military, please let me know.)
In making one of my periodic quixotic quests recently, I came across something that I find very odd. In 2000, William S. Hein & Co. republished the Navy OJAG's incredibly useful Index and Legislative History, Uniform Code of Military Justice. You can still buy it from Hein for $115, though the need to do so has been largely supplanted by the Library of Congress's free on-line file featuring the same material. But suppose I want to take it to the beach with me for some light sea-side reading, so I really want to buy the book. Since I can get a new copy from Hein for $115, why would I pay $318.47 for a used copy? It's not like it's signed by Professor Morgan.
Six copies of the Index are available on abe.com from three different book dealers. Every single one costs more than a new copy from Hein. I'm not a Law and Economics disciple, but I would have thought that the marketplace would be sufficiently rational to prevent such bizarre pricing. Can anyone explain this one to me?
Saturday, August 25, 2007
New military justice case book
Those of you who teach military justice courses may be interested in a new case book published by LexisNexis: Military Justice: Cases and Materials. The authors are Gene Fidell, Beth Hillman, and me. Here's a link to the publisher's description of the book.
Inappropriate sentence appropriateness standard
In 2005, CAAF reversed a sentence appropriateness holding by NMCCA. United States v. Baier, 60 M.J. 382 (C.A.A.F. 2005). In that case, the Navy-Marine Corps Court had written, in part: "When reviewing a sentence it is important to consider the sense of justice of the community where the crime was committed which should not be disturbed unless 'the harshness of the sentence is so disproportionate to the crime as to cry out for equalization.' Rojas, 15 M.J. at 919." United States v. Baier, No. NMCCA 200200476, slip op. at 2 (N-M. Ct. Crim. App. Oct. 23, 2003) (per curiam). Wrong, ruled CAAF. That language "is legally incorrect. A Court of Criminal Appeals must determine whether it finds the sentence to be appropriate. It may not affirm a sentence that the court finds inappropriate, but not 'so disproportionate as to cry out' for reduction." In footnote 15 of its Baier opinion, CAAF also observed that the legally erroneous "language that the lower court quoted originated in United States v. Usry, 9 M.J. 701, 704-05 (N.C.M.R. 1980)."
What a surprise it was, then, to see United States v. Usry, 9 M.J. 701, 704 (N.C.M.R. 1980), cited in a March 2007 NMCCA opinion for the following proposition: "A sentence should not be disturbed on appeal, 'unless the harshness of the sentence is so disproportionate as to cry out for sentence equalization.'" United States v. Ryan, No. NMCCA 200401577, slip op. at 8 (N-M. Ct. Crim. App. March 29, 2007).
(The Ryan case, by the way, reads like an excerpt from the screenplay of A Few Good Men. Corporal Ryan was a squad leader for the Marine Security Force at Guantanamo. He was convicted of maltreating his subordinates in various ways -- perhaps inspired by the Code Red lore from the silver screen.)
CAAF wasted little time calling NMCCA's error to that court's attention. Ryan filed a petition for grant of review on 29 March 2007. United States v. Ryan, No. 07-0601/MC, __ M.J. ___ (C.A.A.F. March 29, 2007). His counsel obtained an enlargement to file the supplement not later than 30 July 2007. United States v. Ryan, No. 07-0601/MC, __ M.J. ___ (C.A.A.F. June 29, 2007). CAAF then turned around the case in little more than three weeks, affirming NMCCA's ruling on the findings, but setting aside its decision on the sentence. United States v. Ryan, No. 07-0601/MC, __ M.J. ___ (C.A.A.F. Aug. 23, 2007) (summary disposition). CAAF ruled: "The record of trial is returned to the Judge Advocate General of the Navy for remand to the Navy-Marine Corps Court for a new sentence appropriateness review in light of United States v. Baier, 60 M.J. 382 (C.A.A.F. 2005)."
I don't have access to Shepard's Citations right now, but presumably a cite to Baier pops up when Shepardizing Usry. How did Usry make it into an opinion issued more than two years after Baier?
New NMCCA published decision
NMCCA released a published opinion on 23 August. United States v. Bredschneider, __ M.J. ___, No. NMCCA 200700025 (N-M. Ct. Crim. App. Aug. 23, 2007). But at the moment it appears to be available only on NKO and not on the court's publicly available web site. As a service to our readers who don't have access to NKO, here's a link to the opinion.
Okay, now that everyone can read it, let's discuss it, shall we?
In Bredschneider, the Navy-Marine Corps Court reasonably concludes that a 7-year delay between completion of the trial and docketing at NMCCA was facially unreasonable. Bredschneider, slip op. at 2. (This means that the case languished in limbo longer than my daughter has been alive. It therefore failed what I shall henceforth call the Shannon Standard.) In this case, the government even conceded that the delay was unreasonable and without excuse. Id., slip op. at 3. But NMCCA concludes that the final two Barker v. Wingo factors militate against the defense. First, at no point before the case finally reached NMCCA did Bredschneider complain about the delay. Second, and of far greater importance to the Navy-Marine Corps Court, the court found no prejudice resulting from the delay. While Bredschneider claimed that he had been denied employment opportunities at Meijer’s, Lowes, and Wal-Mart as a result of his lack of a DD-214, the court clearly disbelieved this assertion. It pointed out that the record of trial contained information indicating that Bredschneider planned to take over his father's business, and Bredschneider's affidavit indicates that he did so, albeit on a part-time basis. The court also contrasted this case with United States v. Jones, 61 M.J. 80 (C.A.A.F. 2005), where CAAF found prejudice due to Jones' inability to even be considered for employment due to his lack of a DD-214. In that case, Jones presented affidavits from relevant officials at a trucking company to establish the impact of his lack of a DD-214. In Bredschneider, on the other hand, the defense relied solely on appellant's own affidavit. Not good enough, ruled NMCCA, citing United States v. Gosser, 64 M.J. 93, 98 (C.A.A.F. 2006) (per curiam). In Gosser, in a portion of CAAF's per curiam opinion that appears to be joined only by Chief Judge Gierke and Judge Baker, CAAF wrote: "We conclude that Appellant has failed to substantiate any claim of prejudice. Appellant relies solely on the assertions of his defense counsel in post-trial clemency submissions to the convening authority. He has provided no substantive evidence from persons with direct knowledge of the pertinent facts, nor is there adequate detail to give the Government a fair opportunity to rebut the contention." Actually it appears from footnote 21 of the Gosser opinion that the defense was also relying on a post-action affidavit from Gosser himself. Usually such an affidavit, which if believed would provide the basis for relief, would at least entitle the defense to a DuBay hearing under United States v. Ginn, 47. M.J. 236 (C.A.A.F. 1997). But the Gosser per curiam and the published Bredschneider case appear to recognize a Ginn exception for claims in appellants' affidavits supporting the prejudice prong in a Moreno analysis.
Okay, now moving back to Bredschneider. Despite its finding of no prejudice, NMCCA holds that the delay violated the Fifth Amendment's due process clause:
We conclude that over seven years to docket this 77-page, fairly uncomplicated record of trial is egregious. Moreover, the lack of any explanation by the Government for this extraordinarily long delay weighs heavy in our analysis. Tolerating such a delay would adversely affect the public’s perception of the high standards of our military justice system. Accordingly, we find that the appellant was denied his due process right to speedy review and appeal, even without a specific showing of significant prejudice.
Bredschneider, slip op. at 4.
The court then tells us that "[b]ecause we are not convinced beyond a reasonable doubt that the due process violation in this case was harmless, we will grant relief." Id., slip op. at 5. Ultimately, the court sets aside 6 of the 18 months of confinement that Bredschneider presumably already served some 6 years ago. Id., slip op. at 9. But the court also affirmed forfeiture of all pay and allowances. In light of that, will Bredscheider actually receive any meaningful relief from the retroactive invalidation of 6 months of confinement? Perhaps, under the doctrine that no more than 2/3 of pay may be forfeited unless the accused is in confinement. See United States v. Warner, 25 M.J. 74 (C.M.A. 1987); R.C.M. 1107(d)(2)(discussion). If Bredschneider actually served more than 12 months of confinement before being placed on appellate leave, he may have a claim to 1/3 of the pay of an E-1 for that period. If not, then the Bredschneider opinion may be vulnerable to attack at CAAF for awarding a meaningless remedy. See United States v. Pflueger, 65 M.J. 127 (C.A.A.F. 2007).
But wait, there's more. Have you lost sleep wondering whether those M80 firecrackers in your garage subject you to liability under Article 134 for possession of an unregistered firearm? Well rest easy tonight knowing that NMCCA set aside Bredschneider's guilty plea to this offense. The relevant federal statute, 26 U.S.C. § 5845(f), excludes from its reach destructive devices that are "neither designed nor redesigned for use as a weapon." So, NMCCA assures us, "a device that explodes is not covered by the statute merely because it explodes. Statutory coverage depends upon proof that a device is an explosive plus proof that it was designed as a weapon." Bredschneider, slip op. at 7 (quoting United States v. Hammond, 371 F.3d 776, 780 (11th Cir. 2004)). The providence inquiry in Bredschneider's case did not include any "discussion or inquiry regarding whether the M80s were designed for use as a weapon." Bredschneider, slip op. at 8. The Navy-Marine Corps Court set aside the guilty plea on this basis, but emphasized that its holding was limited to "requiring that in order to support a conviction under 26 U.S.C. § 5861(d), military judges must inform the accused and obtain admissions establishing that the alleged unregistered firearm, in this case M80 firecrackers, was designed for use as a weapon." Id. This is an interesting standard, since it appears to go to the manufacturer's intent rather than the accused's.
Having wiped out Bredschneider's conviction for the offense of possessing four firecrackers, NMCCA proceeds to apply those abominations of the military justice system: United States v. Peoples, 29 M.J. 426 (C.M.A. 1990), and United States v. Sales, 22 M.J. 305 (C.M.A. 1986). This is one of those rare cases in which I can't complain about a court's application of Sales and Peoples to support upholding the sentence as originally adjudged. The offense that was at issue is truly insignificant. And, assuming that the relief granted for the post-trial delay is meaningful and not illusory, that revision of the sentence more than offsets any additional time Bredschneider might have received as the result of his heinous firecracker offense.
We may not have seen the last of Bredschneider. Presumably there is some Navy or Marine Corps appellate counsel out there right now listening to muzak while holding on DFAS's customer service line in an attempt to figure out whether the Navy-Marine Corps Court's decision will put any money back in Bredschneider's pocket or whether it was instead a cruel hoax purporting to retroactively restore six months of Bredschneider's liberty that were irretrievably lost. If it was the latter, Bredschneider's supplement to his petition for grant of review should be more compelling than most.
Thursday, August 23, 2007
For your reading pleasure
1. Here is a link to LtGen Mattis's letter dismissing charges in United States v. Sharratt that we discussed here.
2. Here is a link to the News Media & the Law article about the NIMJ docket project that we discussed here.
3. Here is a link to Dana Milbank's account of yesterday's proceedings in the United States v. Jordan court-martial at Fort Meade.
Wednesday, August 22, 2007
LtGen Mattis's letter dismissing charges in United States v. Sharratt - UPDATED
We in the military justice blogging industry are a collegial bunch. Sacramentum has written about a very moving letter (Update: available here) from General Mattis to a Marine who had gone to an Article 32 for unpremeditated murder arising from the deaths of 24 Iraqis at Haditha in November 2005. Sacramentum has asked that I post the letter on CAAFlog.com. As Sacramentum observes, it is well worth the read.
In the meantime, does anyone know who General Mattis's SJA is?
Considering H.R. 3174
I remain an enthusiastic support of H.R. 3174, the aptly-named Equal Justice for Our Military Act of 2007. The equality point works in either of two directions: the bill would provide servicemembers with an ability to seek cert more equal to that of civilian criminal defendants and it would provide servicemembers with an ability to seek cert more equal to that of alleged unlawful enemy combatants tried by military commissions. Both of those classes can seek cert as the result of ANY criminal conviction. H.R. 3174 would broader servicemembers' ability to seek cert, though even under this legislation, servicemembers receiving sentences insufficient to trigger the CCAs' jurisdiction would be barred from seeking Supreme Court review unless the relevant Judge Advocate General happens to refer the case to the CCA.
The legislation would help to fix the grossly gerrymandered cert jurisdiction established by the Military Justice Act of 1983. That legislation guaranteed the prosecution a path to the Supremes (through the vehicle of a specified issue to CAAF followed by a cert petition) while denying such a path to servicemembers in the huge majority of military justice cases that CAAF doesn't review. That legislation also strongly favored the respondent (almost always the prosecution) in extraordinary writ cases, making it possible to seek cert in such cases only where CAAF has granted extraordinary relief. So this legislation would help to level the playing field. It's the right thing to do. And history teaches us that the additional burden on the various military appellate shops and on the Supreme Court would be minimal.
But what would the legislation's likely jurisprudential effect be? Interestingly, the two most likely answers are: (1) none; or (2) make the law more favorable to the prosecution.
As we have previously discussed, there have been only 8 cases under the Military Justice Act of 1983 in which the Supreme Court has heard oral argument on a cert petition to CMA/CAAF. So the odds are small that there would be a sudden tidal wave of cert grants even if H.R. 3174 were to become law. Most likely, either every cert petition in the expanded pool will be denied or there will be an occasional grant, vacate and remand (GVR), resulting in some individual servicemember obtaining a better outcome on the basis of some other newly announced Supreme Court opinion. See, e.g., O'Connor v. United States, 535 U.S. 1014 (2002) (GVRing for further consideration in light of Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002)); Goodson v. United States, 471 U.S. 1063 (1985) (GVRing for further consideration in light of Smith v. Ilinois, 469 U.S. 91 (1984)).
Now let's move to the less likely scenario: the Supreme Court grants cert in one or several cases that wouldn't have previously fallen within its cert jurisdiction. The likely jurisprudential effect would be a windfall for the prosecution. Since the Military Justice Act of 1983 took effect, the Supreme Court has been more prosecution-friendly than has CMA/CAAF. Consider, for example, Davis v. United States, 512 U.S. 452 (1994). Both CMA and the Supremes ruled against the accused. But the Supremes did so on terms far more beneficial to the prosecution. CMA had ruled that when a suspect undergoing custodial interrogation makes an ambiguous reference to counsel, the interrogator must stop and clarify whether the suspect wants a lawyer. The Supremes, on the other hand, said that there is no need to clarify; the interrogator can bull right ahead unless there is an unambiguous request for counsel. In United States v. Scheffer, 523 U.S. 303 (1998), CAAF had ruled that an accused has a Sixth Amendment right to attempt to lay a foundation to introduce an exculpatory polygraph result. That's a fairly modest holding, yet the Supremes stepped in to say no, the Constitution doesn't require an exception to the President's flat prohibition of polygraph results at courts-martial. And, of course, we all know what happened in Clinton v. Goldsmith, 526 U.S. 529 (1999). So unless you are the only person on the planet who is personally invested in the Appointments Clause and the de facto officer doctrine, see Ryder v. United States, 515 U.S. 177 (1995), the Supremes have been far more hospitable to the prosecution than has CMA/CAAF.
And while both the Supremes and CAAF have seen significant personnel shifts since Goldsmith (only one current CAAF judge was even on the court in 1999, and he didn't participate in that decision), there can be little doubt that the currently constituted Supreme Court is more friendly to the prosecution than the currently constituted CAAF.
So any case that reaches the Supremes under H.R. 3174's expanded jurisdiction carries the prospect of fixing the law in a more prosecution-friendly manner than would have resulted if CAAF were to decide the issue in a later case.
It probably isn't the objective of those supporting H.R. 3174 to move the law in a more prosecution-friendly direction (it certainly isn't mine), but that would be a not-improbable outcome were H.R. 3174 to become law.
Verdict in Abu Ghraib Trial of Lt Col Jordan
Pick of the Week: Ashby and Schweitzer headed back to NMCCA
The long and tortured sage of United States v. Schweitzer and United States v. Ashby is not over yet. They may have to recall a certain Marine Major to re-litigate these. On May 10 and June 27, the N-MCCA decided Schweitzer and Ashby, respectively. For those that don't remember the tortured saga of these two Marine aviators a few words will refresh your recollection, EA-6B Prowler meets ski gondola in Aviano, Italy.
Ashby and Schweitzer ultimately pled guilty to relatively minor charges for the 1998 offenses, but more than a year after the tragedy in the Italian Alps (1999). A year later the sentences were approved by the convening authority (2000). Two to three years later the defense counsel filed their briefs (2002 and 2003). The government filed answers in 2003 and 2004. And, as noted above, N-MCCA expeditiously decided the cases in . . . . 2007. As one of our astute commenters noted, the Schweitzer and Ashby opinions include the following quote, "A sentence should not be disturbed on appeal, 'unless the harshness of the sentence is so disproportionate as to cry out for sentence equalization.' United States v. Usry, 9 M.J. 701, 704 (N.C.M.R. 1980)." Glad to see someone thought through including that quote in those particularly tortured cases. CAAF should grant sentence relief just for delaying the case, yet again. Considering the six months confinement/dismissal that one officer received and dismissal that the other officer received, any meaningful relief would essentially be a pardon and/or windfall for those officers. I know some N-MCCA court clerks, please tell me you guys didn't drop that quote in there?
Upcoming training
We previously noted that CAAF would be holding an orientation program for new appellate counsel on 6 September.
Here's another date to add to your calendar. On Friday, 19 October the Judge Advocates Association is presenting a one-day appellate advocacy seminar at the George Mason University School of Law.
I don't understand the used book market
I occasionally search abe.com for military justice books I would like to own but don't. (If anyone knows how I can buy a copy of Colonel Snedeker's A Brief History of Courts-Martial or Homer Moyer's Justice and the Military, please let me know.)
In making one of my periodic quixotic quests recently, I came across something that I find very odd. In 2000, William S. Hein & Co. republished the Navy OJAG's incredibly useful Index and Legislative History, Uniform Code of Military Justice. You can still buy it from Hein for $115, though the need to do so has been largely supplanted by the Library of Congress's free on-line file featuring the same material. But suppose I want to take it to the beach with me for some light sea-side reading, so I really want to buy the book. Since I can get a new copy from Hein for $115, why would I pay $318.47 for a used copy? It's not like it's signed by Professor Morgan.
Six copies of the Index are available on abe.com from three different book dealers. Every single one costs more than a new copy from Hein. I'm not a Law and Economics disciple, but I would have thought that the marketplace would be sufficiently rational to prevent such bizarre pricing. Can anyone explain this one to me?
New military justice case book
Those of you who teach military justice courses may be interested in a new case book published by LexisNexis: Military Justice: Cases and Materials. The authors are Gene Fidell, Beth Hillman, and me. Here's a link to the publisher's description of the book.
Inappropriate sentence appropriateness standard
In 2005, CAAF reversed a sentence appropriateness holding by NMCCA. United States v. Baier, 60 M.J. 382 (C.A.A.F. 2005). In that case, the Navy-Marine Corps Court had written, in part: "When reviewing a sentence it is important to consider the sense of justice of the community where the crime was committed which should not be disturbed unless 'the harshness of the sentence is so disproportionate to the crime as to cry out for equalization.' Rojas, 15 M.J. at 919." United States v. Baier, No. NMCCA 200200476, slip op. at 2 (N-M. Ct. Crim. App. Oct. 23, 2003) (per curiam). Wrong, ruled CAAF. That language "is legally incorrect. A Court of Criminal Appeals must determine whether it finds the sentence to be appropriate. It may not affirm a sentence that the court finds inappropriate, but not 'so disproportionate as to cry out' for reduction." In footnote 15 of its Baier opinion, CAAF also observed that the legally erroneous "language that the lower court quoted originated in United States v. Usry, 9 M.J. 701, 704-05 (N.C.M.R. 1980)."
What a surprise it was, then, to see United States v. Usry, 9 M.J. 701, 704 (N.C.M.R. 1980), cited in a March 2007 NMCCA opinion for the following proposition: "A sentence should not be disturbed on appeal, 'unless the harshness of the sentence is so disproportionate as to cry out for sentence equalization.'" United States v. Ryan, No. NMCCA 200401577, slip op. at 8 (N-M. Ct. Crim. App. March 29, 2007).
(The Ryan case, by the way, reads like an excerpt from the screenplay of A Few Good Men. Corporal Ryan was a squad leader for the Marine Security Force at Guantanamo. He was convicted of maltreating his subordinates in various ways -- perhaps inspired by the Code Red lore from the silver screen.)
CAAF wasted little time calling NMCCA's error to that court's attention. Ryan filed a petition for grant of review on 29 March 2007. United States v. Ryan, No. 07-0601/MC, __ M.J. ___ (C.A.A.F. March 29, 2007). His counsel obtained an enlargement to file the supplement not later than 30 July 2007. United States v. Ryan, No. 07-0601/MC, __ M.J. ___ (C.A.A.F. June 29, 2007). CAAF then turned around the case in little more than three weeks, affirming NMCCA's ruling on the findings, but setting aside its decision on the sentence. United States v. Ryan, No. 07-0601/MC, __ M.J. ___ (C.A.A.F. Aug. 23, 2007) (summary disposition). CAAF ruled: "The record of trial is returned to the Judge Advocate General of the Navy for remand to the Navy-Marine Corps Court for a new sentence appropriateness review in light of United States v. Baier, 60 M.J. 382 (C.A.A.F. 2005)."
I don't have access to Shepard's Citations right now, but presumably a cite to Baier pops up when Shepardizing Usry. How did Usry make it into an opinion issued more than two years after Baier?
New NMCCA published decision
NMCCA released a published opinion on 23 August. United States v. Bredschneider, __ M.J. ___, No. NMCCA 200700025 (N-M. Ct. Crim. App. Aug. 23, 2007). But at the moment it appears to be available only on NKO and not on the court's publicly available web site. As a service to our readers who don't have access to NKO, here's a link to the opinion.
Okay, now that everyone can read it, let's discuss it, shall we?
In Bredschneider, the Navy-Marine Corps Court reasonably concludes that a 7-year delay between completion of the trial and docketing at NMCCA was facially unreasonable. Bredschneider, slip op. at 2. (This means that the case languished in limbo longer than my daughter has been alive. It therefore failed what I shall henceforth call the Shannon Standard.) In this case, the government even conceded that the delay was unreasonable and without excuse. Id., slip op. at 3. But NMCCA concludes that the final two Barker v. Wingo factors militate against the defense. First, at no point before the case finally reached NMCCA did Bredschneider complain about the delay. Second, and of far greater importance to the Navy-Marine Corps Court, the court found no prejudice resulting from the delay. While Bredschneider claimed that he had been denied employment opportunities at Meijer’s, Lowes, and Wal-Mart as a result of his lack of a DD-214, the court clearly disbelieved this assertion. It pointed out that the record of trial contained information indicating that Bredschneider planned to take over his father's business, and Bredschneider's affidavit indicates that he did so, albeit on a part-time basis. The court also contrasted this case with United States v. Jones, 61 M.J. 80 (C.A.A.F. 2005), where CAAF found prejudice due to Jones' inability to even be considered for employment due to his lack of a DD-214. In that case, Jones presented affidavits from relevant officials at a trucking company to establish the impact of his lack of a DD-214. In Bredschneider, on the other hand, the defense relied solely on appellant's own affidavit. Not good enough, ruled NMCCA, citing United States v. Gosser, 64 M.J. 93, 98 (C.A.A.F. 2006) (per curiam). In Gosser, in a portion of CAAF's per curiam opinion that appears to be joined only by Chief Judge Gierke and Judge Baker, CAAF wrote: "We conclude that Appellant has failed to substantiate any claim of prejudice. Appellant relies solely on the assertions of his defense counsel in post-trial clemency submissions to the convening authority. He has provided no substantive evidence from persons with direct knowledge of the pertinent facts, nor is there adequate detail to give the Government a fair opportunity to rebut the contention." Actually it appears from footnote 21 of the Gosser opinion that the defense was also relying on a post-action affidavit from Gosser himself. Usually such an affidavit, which if believed would provide the basis for relief, would at least entitle the defense to a DuBay hearing under United States v. Ginn, 47. M.J. 236 (C.A.A.F. 1997). But the Gosser per curiam and the published Bredschneider case appear to recognize a Ginn exception for claims in appellants' affidavits supporting the prejudice prong in a Moreno analysis.
Okay, now moving back to Bredschneider. Despite its finding of no prejudice, NMCCA holds that the delay violated the Fifth Amendment's due process clause:
We conclude that over seven years to docket this 77-page, fairly uncomplicated record of trial is egregious. Moreover, the lack of any explanation by the Government for this extraordinarily long delay weighs heavy in our analysis. Tolerating such a delay would adversely affect the public’s perception of the high standards of our military justice system. Accordingly, we find that the appellant was denied his due process right to speedy review and appeal, even without a specific showing of significant prejudice.
Bredschneider, slip op. at 4.
The court then tells us that "[b]ecause we are not convinced beyond a reasonable doubt that the due process violation in this case was harmless, we will grant relief." Id., slip op. at 5. Ultimately, the court sets aside 6 of the 18 months of confinement that Bredschneider presumably already served some 6 years ago. Id., slip op. at 9. But the court also affirmed forfeiture of all pay and allowances. In light of that, will Bredscheider actually receive any meaningful relief from the retroactive invalidation of 6 months of confinement? Perhaps, under the doctrine that no more than 2/3 of pay may be forfeited unless the accused is in confinement. See United States v. Warner, 25 M.J. 74 (C.M.A. 1987); R.C.M. 1107(d)(2)(discussion). If Bredschneider actually served more than 12 months of confinement before being placed on appellate leave, he may have a claim to 1/3 of the pay of an E-1 for that period. If not, then the Bredschneider opinion may be vulnerable to attack at CAAF for awarding a meaningless remedy. See United States v. Pflueger, 65 M.J. 127 (C.A.A.F. 2007).
But wait, there's more. Have you lost sleep wondering whether those M80 firecrackers in your garage subject you to liability under Article 134 for possession of an unregistered firearm? Well rest easy tonight knowing that NMCCA set aside Bredschneider's guilty plea to this offense. The relevant federal statute, 26 U.S.C. § 5845(f), excludes from its reach destructive devices that are "neither designed nor redesigned for use as a weapon." So, NMCCA assures us, "a device that explodes is not covered by the statute merely because it explodes. Statutory coverage depends upon proof that a device is an explosive plus proof that it was designed as a weapon." Bredschneider, slip op. at 7 (quoting United States v. Hammond, 371 F.3d 776, 780 (11th Cir. 2004)). The providence inquiry in Bredschneider's case did not include any "discussion or inquiry regarding whether the M80s were designed for use as a weapon." Bredschneider, slip op. at 8. The Navy-Marine Corps Court set aside the guilty plea on this basis, but emphasized that its holding was limited to "requiring that in order to support a conviction under 26 U.S.C. § 5861(d), military judges must inform the accused and obtain admissions establishing that the alleged unregistered firearm, in this case M80 firecrackers, was designed for use as a weapon." Id. This is an interesting standard, since it appears to go to the manufacturer's intent rather than the accused's.
Having wiped out Bredschneider's conviction for the offense of possessing four firecrackers, NMCCA proceeds to apply those abominations of the military justice system: United States v. Peoples, 29 M.J. 426 (C.M.A. 1990), and United States v. Sales, 22 M.J. 305 (C.M.A. 1986). This is one of those rare cases in which I can't complain about a court's application of Sales and Peoples to support upholding the sentence as originally adjudged. The offense that was at issue is truly insignificant. And, assuming that the relief granted for the post-trial delay is meaningful and not illusory, that revision of the sentence more than offsets any additional time Bredschneider might have received as the result of his heinous firecracker offense.
We may not have seen the last of Bredschneider. Presumably there is some Navy or Marine Corps appellate counsel out there right now listening to muzak while holding on DFAS's customer service line in an attempt to figure out whether the Navy-Marine Corps Court's decision will put any money back in Bredschneider's pocket or whether it was instead a cruel hoax purporting to retroactively restore six months of Bredschneider's liberty that were irretrievably lost. If it was the latter, Bredschneider's supplement to his petition for grant of review should be more compelling than most.
For your reading pleasure
1. Here is a link to LtGen Mattis's letter dismissing charges in United States v. Sharratt that we discussed here.
2. Here is a link to the News Media & the Law article about the NIMJ docket project that we discussed here.
3. Here is a link to Dana Milbank's account of yesterday's proceedings in the United States v. Jordan court-martial at Fort Meade.
LtGen Mattis's letter dismissing charges in United States v. Sharratt - UPDATED
We in the military justice blogging industry are a collegial bunch. Sacramentum has written about a very moving letter (Update: available here) from General Mattis to a Marine who had gone to an Article 32 for unpremeditated murder arising from the deaths of 24 Iraqis at Haditha in November 2005. Sacramentum has asked that I post the letter on CAAFlog.com. As Sacramentum observes, it is well worth the read.
In the meantime, does anyone know who General Mattis's SJA is?
Considering H.R. 3174
I remain an enthusiastic support of H.R. 3174, the aptly-named Equal Justice for Our Military Act of 2007. The equality point works in either of two directions: the bill would provide servicemembers with an ability to seek cert more equal to that of civilian criminal defendants and it would provide servicemembers with an ability to seek cert more equal to that of alleged unlawful enemy combatants tried by military commissions. Both of those classes can seek cert as the result of ANY criminal conviction. H.R. 3174 would broader servicemembers' ability to seek cert, though even under this legislation, servicemembers receiving sentences insufficient to trigger the CCAs' jurisdiction would be barred from seeking Supreme Court review unless the relevant Judge Advocate General happens to refer the case to the CCA.
The legislation would help to fix the grossly gerrymandered cert jurisdiction established by the Military Justice Act of 1983. That legislation guaranteed the prosecution a path to the Supremes (through the vehicle of a specified issue to CAAF followed by a cert petition) while denying such a path to servicemembers in the huge majority of military justice cases that CAAF doesn't review. That legislation also strongly favored the respondent (almost always the prosecution) in extraordinary writ cases, making it possible to seek cert in such cases only where CAAF has granted extraordinary relief. So this legislation would help to level the playing field. It's the right thing to do. And history teaches us that the additional burden on the various military appellate shops and on the Supreme Court would be minimal.
But what would the legislation's likely jurisprudential effect be? Interestingly, the two most likely answers are: (1) none; or (2) make the law more favorable to the prosecution.
As we have previously discussed, there have been only 8 cases under the Military Justice Act of 1983 in which the Supreme Court has heard oral argument on a cert petition to CMA/CAAF. So the odds are small that there would be a sudden tidal wave of cert grants even if H.R. 3174 were to become law. Most likely, either every cert petition in the expanded pool will be denied or there will be an occasional grant, vacate and remand (GVR), resulting in some individual servicemember obtaining a better outcome on the basis of some other newly announced Supreme Court opinion. See, e.g., O'Connor v. United States, 535 U.S. 1014 (2002) (GVRing for further consideration in light of Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002)); Goodson v. United States, 471 U.S. 1063 (1985) (GVRing for further consideration in light of Smith v. Ilinois, 469 U.S. 91 (1984)).
Now let's move to the less likely scenario: the Supreme Court grants cert in one or several cases that wouldn't have previously fallen within its cert jurisdiction. The likely jurisprudential effect would be a windfall for the prosecution. Since the Military Justice Act of 1983 took effect, the Supreme Court has been more prosecution-friendly than has CMA/CAAF. Consider, for example, Davis v. United States, 512 U.S. 452 (1994). Both CMA and the Supremes ruled against the accused. But the Supremes did so on terms far more beneficial to the prosecution. CMA had ruled that when a suspect undergoing custodial interrogation makes an ambiguous reference to counsel, the interrogator must stop and clarify whether the suspect wants a lawyer. The Supremes, on the other hand, said that there is no need to clarify; the interrogator can bull right ahead unless there is an unambiguous request for counsel. In United States v. Scheffer, 523 U.S. 303 (1998), CAAF had ruled that an accused has a Sixth Amendment right to attempt to lay a foundation to introduce an exculpatory polygraph result. That's a fairly modest holding, yet the Supremes stepped in to say no, the Constitution doesn't require an exception to the President's flat prohibition of polygraph results at courts-martial. And, of course, we all know what happened in Clinton v. Goldsmith, 526 U.S. 529 (1999). So unless you are the only person on the planet who is personally invested in the Appointments Clause and the de facto officer doctrine, see Ryder v. United States, 515 U.S. 177 (1995), the Supremes have been far more hospitable to the prosecution than has CMA/CAAF.
And while both the Supremes and CAAF have seen significant personnel shifts since Goldsmith (only one current CAAF judge was even on the court in 1999, and he didn't participate in that decision), there can be little doubt that the currently constituted Supreme Court is more friendly to the prosecution than the currently constituted CAAF.
So any case that reaches the Supremes under H.R. 3174's expanded jurisdiction carries the prospect of fixing the law in a more prosecution-friendly manner than would have resulted if CAAF were to decide the issue in a later case.
It probably isn't the objective of those supporting H.R. 3174 to move the law in a more prosecution-friendly direction (it certainly isn't mine), but that would be a not-improbable outcome were H.R. 3174 to become law.