When deciding what a word or term in a statute means, the rule of statutory interpretation is to give the word or term its plain and ordinary meaning. This is known as the plain meaning rule. If the word or term is clear and unambiguous, then the court will not look beyond the text of the statute to determine its meaning. The principal rule is well known to military defense counsel as they prepare a case for trial.

If a word or term is ambiguous, then the court may use other tools of statutory interpretation to determine its meaning. These tools include:

• Looking at the context of the word or term in the statute. This means considering the other words and phrases in the statute, as well as the overall purpose of the statute.
• Considering the legislative history of the statute. This includes looking at the bill drafts, committee reports, and other materials that were created during the legislative process.
• Considering relevant case law. This includes looking at how other courts have interpreted similar words and terms in other statutes.

The court will use these tools to interpret the ambiguous word or term in a way consistent with the statute’s overall purpose. Readers should also be aware of Scalia & Garner’s excellent book–Reading the Law, for deep dives into the rules and their complexities. As military defense counsel, we have a copy handy on our bookshelf.

It is important to note that the rules of statutory interpretation are complex and no single rule can be applied to all cases. Courts will often weigh different factors when interpreting a statute, including the plain meaning of the text, the context of the statute, the legislative history of the statute, and relevant case law.

A specific case-–United States v. Cabuhat

Over the last few years, Congress has made life difficult for military defense counsel, actually all lawyers practicting military justice, because of the numerous changes to the definition of what is or is not a crime.

Before a description of Cabuhat, what does (Google) Bard say The phrase “in the presence of” means in the same place as and close enough to be seen or heard. It can be used to describe a physical presence, such as when you are sitting in a room with someone.’

Cabuhat, assigned to the 86th Aircraft Maintenance Squadron, Ramstein, Germany, was sentenced to 30 years confinement in June 2021. He plead guilty to SA of a child, wrongfully photographing the child, and viewing and possessing CP.

Cabuhat was arrested in 2021 after an Air Force Office OSI investigation. Cabuhat SA a child on many times and had photographed the person during the abuse. He also had a large collection of CP.

Cabuhat pleaded guilty to all charges in June 2021. The military judge sentenced him to 30 years (to be served at the U.S. Disciplinary Barracks, Fort Leavenworth, KS), a dishonorable discharge, reduction to E-1, and mandatory SOR.

The central issue in the case is the meaning of “in the prescence of.” This can be important when the parties are separated and are communicating via Skype, WhatsApp, FaceTime or similar application.

Currently, a military jury (called a Panel of Members) must have eight members in a general court-martial (12 if it’s a death penalty case) and four in a special court-martial. Article 29. Three-fourths of the members must vote for a finding of guilty. Article 52.

That is the current law in the military, but it is being challenged. The Court of Appeals for the Armed Forces has several cases on the issue of unanimous verdicts, which will be decided this term. If the court decides in favor of unanimous verdicts, then the Government will likely appeal to the U. S. Supreme Court (or vice-versa).

What should the military defense counsel being doing now at trial? One step is easy, but there may be other steps that should be considered.

Step One: file a motion with the trial judge that the members should be instructed that they must have a unanimous vote for any finding of guilty. Most military are already doing this. The military judge will almost certainly deny the motion, but you have put the issue on the record for appeal. Because the voting is a constitutional issue, an Appellant whose case is still under review might benefit from a favorable change in the law while the case is still on appeal.

The Supreme Court has previously held that an appellant might benefit from the change in the law. Griffith v. Kentucky, 479 U.S. 314 (1987). The Court of Appeals for the Armed Forces (CAAF) has followed that rule in, for example, United States v. Harcrow, 66 M.J. 154 (C.A.A.F. 2008). There is some suggestion that the retroactivity principle need not always apply–this is fact specific and adds uncertainty. Your military appellate defense lawyer is able to help navigate this problem. CAAF has looked at the issue in United States v. St. Blanc, 70 M.J. 424 (C.A.A.F. 2012) in relation to what remedy to apply.

But,

Step Two. It seems to me that there is an earlier point in the trial where the military defense lawyer needs to object to the nonunanimous verdict rule. At the arraignment, the judge advises the accused of their forum rights–officer members, officer-enlisted members, or judge alone. Here the judge tells the accused about the voting requirement. Perhaps, at this stage, the military defense counsel should object and ask the accused to be advised that the voting will be unanimous. The judge will not do that because, again, under current law, she doesn’t have to.

Why Step Two?

Forum choice is always difficult–some cases are usually best tried by a judge alone most others should be a jury (members) trial. What we don’t know is whether a case that might be best by judge alone would be better as a jury (members) trial if a unanimous verdict is required. It’s a combination of numbers and intuition about who the members are. Some of us more experienced military defense counsel are familiar with the old numbers game of how many members to have on the jury.

So, one of the new issues we’ve been raising has been the denial of a proper forum choice based on the judge’s initial forum and voting advice. This becomes important on appeal where the accused has elected trial by judge alone but would have elected members if the voting had to be unanimous for guilt. It’s rather simple–it might be easier to convince one member to vote not guilty than three.

At Cave & Freeburg, LLP, we try to be creative and thoughtful about your defense and consider all options that might work in your favor.

“We thus readily conclude that ex parte communications between a military judge and an SVC are generally proscribed.”

Yes, inexplicably, it was necessary for the Air Force Court of Criminal Appeals (AFCCA) to decide such an issue, as part of deciding what impact, if any, SVC’s ex parte communications had in a trial–a chilling thought.

In United States v. Turner, (an Air Force case) the SVC decided to have a little confab with the military judge before trial, allegedly about administrative matters–until you read the facts.

As you read the case, please note this turned into a military judge alone case–a case in which the MJ was to be the fact-finder on guilt or innocence, and the imposer of punishment.

Here is a most troubling part of the facts for which all defense counsel have fair warning and should include as part of their voir dire of an Air Force military judge.

The SVC also testified at the post-trial Article 39(a), UCMJ, session. When asked by the trial defense counsel if it was the “standard in practice as an SVC to meet with the military judge ex parte,” the SVC stated, “Generally, yes. We’re usually not included in [R.C.M.] 802 conferences, so generally the judge will speak with us, kind of one-on-one, sometimes before the trial begins and discuss just kind of administrative matters.”

The court finds “nothing nefarious” going on here. So, let’s apply the maxim that you attribute to stupidity vice malice, what happened here still doesn’t make a lot of sense.

• Why meet with the MJ in person for this question?
• Why meet with the MJ alone?
• Why not give the other parties a heads-up?

Why ask those questions?

• Is not the SVC part of the email chain for matters related to the trial?
• If there is a motion regarding the CW, the SVC would have been copied, so why need to ask the MJ if one has been filed?
• Why not ask the court-reporter?
• Why not ask the defense counsel?
• Why not ask the trial counsel?
• And as a last resort, why not email the MJ copy all with the question about the motion?

In addition to the arguments in the court, is this not the equivalent of a witness meeting with the judge off-the-record? The court noted:

[T]he line between administrative and substantive matters blurs quickly. What may start as a simple discussion of administrative matters can easily become a discussion of substantive issues. Therefore, the military judge’s in-chambers meeting with the SVC, without the parties, was fraught with risk. This risk was quickly realized once the SVC revealed the facts and circumstances surrounding the trial defense counsel’s pretrial interview with the SVC’s client, a Government witness who also maintained recognized legal interests in the proceedings.

In what other court or court system in the United States is a witness–the central witness–even allowed to get to the judge’s chambers?

Only in the military where we have Special Status Counsel.

WHETHER THE MILITARY JUDGE ACTED AS COUNSEL OR LEGAL OFFICER AS TO ANY OFFENSE CHARGED OR IN APPELLANT’S CASE GENERALLY OR FORWARDED CHARGES IN APPELLANT’S CASE WITH A PERSONAL RECOMMENDATION AS TO DISPOSITION WHEN HE WAS CHIEF OF MILITARY JUSTICE AT III CORPS?

The facts supporting this issue were:

• The accused selected trial by military judge.
• The military judge had made the usual rote disclaimer in which they say they know of no reasons to be disqualified.

It turns out that:

• While Appellant’s case was being investigated, the military judge was the Chief of Justice.
• CID did its usual coordination with the trial counsel.
• A trial counsel gave the rote probable cause finding.
• The military judge, as chief of justice, supervised that trial counsel.
• The trial defense counsel did not know this because he’d recently reported to that base.

Most importantly, both the trial defense counsel and the Appellant stated there would not have been a judge alone trial if they’d known of this information (or, not in the opinion, they would have asked the military judge to recuse himself[?]).

The bottom line for Keen is:

In the present case, the military judge was CoJ when the rape offense at issue occurred and when it was reported to and investigated by CID. Additionally, the case was present on his military justice case tracker. The probable cause opinion was rendered by a trial counsel under his supervision for the very offense for which the appellant was later tried. Regardless of whether this constitutes acting as “a counsel” in appellant’s case, this level of involvement in, and knowledge about, appellant’s case forms a sufficient basis to reasonably question the military judge’s impartiality. We, therefore, find the military judge was disqualified under R.C.M. 902(a) and he committed error in serving as military judge in appellant’s trial.

Because this was a structural error, Keen gets a new trial.

A reminder. When I first learn who the military judge is in a case I have, I want to know as much about him or her as possible. There are many reasons to know who the judge is, including whether or not you should recommend a military judge alone trial to the client. If the judge is new to me, then I want to know their record prior to coming to the bench, such as whether they’ve just come from a TC/DC or SJA?RDC billet–it may have an impact on their approach to a trial; how long have they been on the bench (my rule of thumb is that it takes a judge about a year to find their feet and evidence their judicial philosophy); how do they resolve MJA trials? How are they on sentencing?

When last we wrote about the statistics of relists a little over a year ago, it was to report on what was then a new trend: the court’s practice of routinely relisting petitions that are under serious consideration for review at second or subsequent conferences prior to entering orders granting or denying certiorari. The practice is by now an accepted feature of the certiorari process, and at least one relist is generally viewed as a necessary step on the way to a grant of further review. Here, we offer an update on the statistics of relists. Focusing on October Term 2015, we highlight some emerging trends in what appears to be an evolving practice.

Regrettably, on 3 October 2016 the court declined to take Captain Sullivan’s petition.

First, and most obviously, a good judge, like a good umpire, cannot act as a partisan. Fifth, at the same time, to be a good judge and a good umpire you have to possess some backbone. Sixth, to be a good judge and a good umpire, you have to tune out the crowd noise.

And from the abstract:

Judge Kavanaugh discusses the notion of Judges as umpires and sets forth ten principles that are vital for an impartial judiciary dedicated to the rule of law in our separation of powers system. According to Judge Kavanaugh, Judges cannot act as partisans, must follow establish rules and principles, and must strive for consistency, not only in terms of respecting precedent, but from day to day, in how they decide cases, confront issues, interpret statutes and interpret the Constitution. Judges must also understand that their role is to apply the rules rather than remake the rules according to their own policy views and have the fortitude to stand up to the other political branches in deciding that an action is unconstitutional or otherwise unlawful. In maintain their role in standing up to other political branches and refraining from remaking the law, Judges must have the ability to tune out criticism, so that they are able to stand up for unpopular positions. In their conduct, Judges must maintain a proper demeanor, keeping emotions in check, be collegial, and have the ability to work with colleagues and learn from them in order to reach the best decisions. And finally in reaching their decisions, Judges must be clear in explaining their reasoning behind a decision. Of course, for us to be good judges and good umpires, the rule-makers can help by drafting rules that are as clear as possible. And, in the federal system, that means Congress.