The problem is that the CCA’s don’t do that enough. But at least they have the power.
The underlying issue is whether Article 66(d), UCMJ, authorizes the CCAs to order sentence-only rehearings. The government argues that the CCAs do not have that authority and asks that we overrule this court’s decision in United States v. Miller, 370 C.M.A. 296, 27 C.M.R. 10 (1956), in which we specifically recognized the authority of the CCAs to order sentence-only rehearings. The government asserts that Miller was wrongly decided in light of Jackson v. Taylor, 353 U.S. 569 (1957).
As the gubmint’s oft-stated “it’s too hard” argument CAAF said:
As noted in Miller, sending a case to CCAs for a sentenceonly rehearing is somewhat cumbersome, as a new court must be assembled and informed of the facts. 10 C.M.A. at 299, 27 C.M.R. at 373. However, a process that is cumbersome does not equate to a process that is unworkable. The very fact that the CCAs have been ordering sentence-only rehearings for over sixty years demonstrates the workability of the process.
Along with deciding the issue, CAAF made a couple of comments interesting to those students of CAAF’s stare decisis belief.
- We do not believe that Miller was so poorly reasoned that it should be reversed on that basis alone, particularly when it has been accepted by and relied upon by both the legislative and executive branches of government in the intervening years.
- Legislative history does not support overruling.
- A long supportive history following the case sought to be overruled and thus an argument for consistency. But, one asks, what about Fosler?
- The Supreme Court has held that stare decisis “is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Payne v. Tennessee, 501 U.S. 808, 827 (1991); see also Tualla, 52 M.J. at 231. As noted, the Miller rule has been in effect for over sixty years and during that time has become accepted procedure in the military justice system. It has provided a predictable and consistent appellate remedy for both litigants and the lower courts to follow. (Fosler anyone?)
- (Note from the two dissenting judges) The fundamental error in the court’s analysis was in according the policy of stare decisis an aspect of flexibility that it does not have. A precedent-making decision may be overruled by the court that made it or by a court of a higher rank. That discretion, however, does not reside in a court of a lower rank. United States v. Allbery, 44 M.J. 226, 228 (C.A.A.F. 1996)
The Supremes anyone?
Once again one of my two favorite evidence blogs (federal evidence review) has published the annual “review” for 2013 and for 2014.
Key Evidence Issues During 2013
5. Certification (a civil case).
6. Supreme Court Watch: Sixth Amendment (Right to Present a Defense) (Confrontation Clause); FRE 608(b) (Specific Instances of Conduct): Nevada v. Jackson: No Constitutional Right To Present Extrinsic Evidence For Impeachment Purposes
Each of the above issues had something of value and interest to military justice practitioners. For example:
In Smith v. United States, 568 U.S. _, 133 S.Ct. 714 (Jan. 9, 2013), the Supreme Court held unanimously that the burden of proof to establish withdrawal from a conspiracy, is on the accused, and the prosecution has no burden to disprove withdrawal under the Fifth Amendment Due Process Clause.
And now, “we look forward at some key evidence issues that may arise in 2014.”
Key Evidence Issues for 2014
4. Open Issue (civil case):
Professor Friedman, a frequent litigator on confrontation issues hasn’t blogged recently, but here is one related to post-Williams issues.
[T]he second petition for certiorari in Turner v. United States, No. 13-127, one of the cases that was GVRed (grant, vacate, remand) in light of Williams v. Illinois, came before the Supreme Court’s conference on Friday but the Court did not take any action. (The case was originally distributed for the conference of September 30, but before hen the Court requested a response form the Government, so the case was relisted.) It may well be that the Court realizes that it needs to do something in light of the confusion created by the fractured decision in Williams, but it has not yet decided which case to take. There are several others pending. The Court has already requested a response from the State in Brewington v. North Carolina, No. 13-504, filed in October, and the State’s response is not due until February 3. Derr v. Maryland, No. 13-637, was filed on Nov. 20, Ortiz-Zape v. North Carolina, No. 13-633, on Nov. 21, and Cooper v. Maryland, No. 13-644, on Nov. 22.
(Note: I have one case pending at a CCA on issue 5 – impeaching a verdict.)
For those interested in the history of the Constitution and its judicial interpretation, the George Washington Law Review has a:
COMMEMORATING THE 100TH ANNIVERSARY OF FARRAND’S RECORDS OF THE FEDERAL CONVENTION
edition. Volume 80, No. 5, includes:
A Dialogue on Statutory and Constitutional Interpretation
The Honorable Antonin Scalia & John F. Manning
80 GEO. WASH. L. REV. 1610 (2012)
A Dialogue with Federal Judges on the Role of History in Interpretation
Amanda L. Tyler, Moderator, The Honorable Frank H. Easterbrook, The Honorable Brett M. Kavanaugh, The Honorable Charles F. Lettow, The Honorable Reena Raggi, The Honorable Jeffrey S. Sutton & The Honorable Diane P. Wood
80 GEO. WASH. L. REV. 1889 (2012)
Professor Friedman has posted various amicus pleadings on his blog here. He lists one not currently on the SCOTUSBlog for the case. A little more here with Supreme Court cases with potential impact on military justice. Professor Friedman does note as to his own filing:
There are a couple of passages that I would amend if I could, in which I refer to the "primary purpose" test and appear to assume that it governs a case like this. I believe a "reasonable anticipation" test is far preferable, and I am hoping that the "primary purpose" test will eventually recede, perhaps first by being confined to interrogations. The recent decision of the Michigan Supreme Court in People v. Fackelman,, which I expect to discuss in a post in the very near future, raises my hopes that this may turn out to be true.
SCOTUSBlog has a petition for the day which may have some military justice impact if granted.
Hart v. United States. The response is due 29 September 2011.
Here is the QP:
Whether 18 U.S.C. § 2422(b) – which makes it a crime "to knowingly persuade, induce, entice, or coerce any individual who has not attained the age of 18 years to engage in… any sexual activity for which any person can be charged with a criminal offense" – requires a jury to come to a unanimous verdict on a single, specific underlying criminal offense for which the defendant could be charged.
Here’s a possible hook into current military practice (and I think you can substitute the two-thirds for the unanimous). Does this set up a Walters–like issue? I’ll cite from United States v. Trew, 68 M.J. 364 (C.A.A.F. 2009), a case I had at trial.
When the phrase “on divers occasions” is removed from a specification, the effect is “that the accused has been found guilty of misconduct on a single occasion and not guilty of the remaining occasions.” United States v. Augspurger, 61 M.J. 189, 190 (C.A.A.F. 2005). “If there is no indication on the record
which of the alleged incidents forms the basis of the conviction, then the findings of guilt are ambiguous and the Court of Criminal Appeals cannot perform a factual sufficiency review. United States v. Walters, 58 M.J. 391, 396-97 (C.A.A.F. 2003).” United States v. Wilson, 67 M.J. 423, 428 (C.A.A.F. 2009).
While it’s is not a “divers occassions” the charge does allege different, and thus divers methods, of violating the statute. What if some members thought my client was enticing and others thought coercing, and they all voted guilty by two-thirds, but two thirds didn’t agree on the entice or the coerce?
The second QP asks about double jeopardy concerns for a conviction on both 18 U.S.C. § 2422 and 18 U.S.C. § 2251. I have one of these cases and I’m not sure this would be applicable to court-martial when charged under Article 134, UCMJ, depending on how it was charged.
White v. Illinois, a crime lab report case will be argued 6 December 2011.
SCOTUSBlog reports their “petition of the day,” which is a criminal evidence case with potential relevance to military justice practitioners – Childers v. Florida, if granted.
Issue two is:
2. Should the Court resolve a conflict in the Circuits and clarify whether its Confrontation Clause
precedents, Olden v. Kentucky, 488 U.S. 227 (1988), Delaware v. Van Arsdall, 475 U.S. 673 (1986), and
Davis v. Alaska, 415 U.So 308 (1974), permit a trial court to preclude cross-examination into the bias of a key witness on the ground that the trial court has allowed some cross-examination into bias.
Other cases to follow:
The President intends nominating Elena Kagan, the current Solicitor General of the United States, as the next (and 112th) justice of the United States Supreme Court, according to the Washington Post.
In replacing Justice John Paul Stevens, Obama would also be breaking with tradition. Every other member of the court is a former federal appeals court judge, and Kagan has never served in the judiciary. The last time a non-judge was appointed was 1972, when President Richard M. Nixon nominated William H. Rehnquist and Lewis Powell in the same year.
Thanks to SCOTUSBlog here is a link to a new Supreme Court research tool.
The Supreme Court Database is the definitive source for researchers, students, journalists, and citizens interested in the U.S. Supreme Court. The Database contains over two hundred pieces of information about each case decided by the Court between the 1953 and 2008 terms. Examples include the identity of the court whose decision the Supreme Court reviewed, the parties to the suit, the legal provisions considered in the case, and the votes of the Justices.