United States v. Gorski , 1997 CAAF LEXIS 102 ( 1997 )

SULLIVAN, Judge

(concurring in part and in the result):

I agree with the excellent opinion of my Brother, Judge Everett, on the ex post facto question raised in this case. The prohibition against ex post facto laws which was established in the U.S. Constitution, Article I, Section 9 (signed September 17, 1787), is a sacred tenet of American jurisprudence. In my view, our decision that there was an ex post facto violation in this case is a common sense decision that most every federal judge in this country would accept.

The beauty of this unanimous decision on the ex post facto violation is spoiled somewhat by the majority’s overreaching use of this opinion to resolve the over 150 pending cases before us which involve the same or a similar legal issue. These cases, however, may include different factual scenarios involving application of the legal doctrine of waiver and perhaps legal claims of ineffective assistance of counsel. The majority’s decision today not only violates the “case-by-case” process of the law to reach a result in (as they put it) “the large number of pending cases with the same issue,” 47 MJ at 375, but does significant damage to two important and well-established areas of the law (waiver and ineffective assistance of counsel). These two areas of the law are ignored in order to reach this multi-case result. In my view, the end (solving 150-plus cases at once) does not justify the means.

On the point of waiver, I make this observation. It is an interesting fact that the five federal judges on this United States Court of Appeals without a blink or a dissent clearly found a glaring violation of the Constitution in the plain words of the forfeiture statute in this case. As we know, in the march of a typical case from the trial to our Court, several attorneys and one judge are involved in the process at the trial level. Several more attorneys and judges are involved at the appellate level. Surely one or more of the lawyers in the 150 cases that are resolved today by the majority saw what we judges saw. Is it not possible that one or more of these lawyers saw this ex post facto violation and raised it with their client in such a manner that finding a knowing waiver would be the fair judicial resolution of that case?¹ Thus, I do not agree with that portion of the majority opinion which refuses to rule on the question of waiver in this case and the other pending ex post facto cases on the ground of judicial efficiency.

In my view, such action by this Court, a court of law, may be an abdication of our duty and sends a message that our Court is a “problem solving” adjunct to the Department of Defense rather than a court of law. See Johnson v. United States, — U.S. -, -, 117 S.Ct. 1544, 1548, 137 L.Ed.2d 718 (1997) (the Supreme Court has no authority to create “out of wholecloth ... an exception to” the plain-error rule). A court of law is not free (no matter how convenient or efficient it may be) to disregard a body of law like the doctrine of waiver. Cf. United States v. Claxton, 32 MJ 159, 162 (CMA² 1991) (Court of Military Review³ exercising its unique sentencing powers may ignore law of waiver).

Since a waiver question is raised as a matter of law and fact in this case, I would answer it. I find no knowing and intelligent waiver of appellant’s ex post facto claim in this record. There is no waiver here because appellant was not advised that the forfeiture he was facing as a result of the enactment of the new federal law (Art. 58b, Uniform Code of Military Justice, 10 USC 858b) could be overturned as unconstitutional by appellate review in his case. See generally Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) (knowing and competent waiver of constitutional right required before rule of waiver may be applied).

1 . In fairness in our justice system, the claim of "waiver” and its twin brother "harmless error” have heen familiar drumbeats in our Court in recent years. These two methods of affirming convictions for the Government, when there has been legal error in a case, have their proper place in our jurisprudence. However, fairness should be the cornerstone of any criminal justice system. Accordingly, a court must be fair to both sides in any litigation. Therefore, I find it unfair to the Government that our Court would refuse to consider the Government’s assertion of waiver in this case and in all other pending ex post facto cases.

For centuries, British justice has set a high water mark in the world for fairness. Winston Churchill as Home Secretary in 1910 said: "(Tlhe treatment of crime and criminals mark and measure the stored-up strength of a nation, and are the sign and proof of the living virtue in it.” M. Gilbert, In Search of Churchill 269 (Harper Collins, 1993).

Let us not set a lesser standard for America’s military justice system. In the last 2 centuries, American justice has been a strong contender as the leader in this field of fair justice for its citizens. This has only been because American justice has been noteworthy for applying the law in an equal manner to all parties of a case.

2 . CMA is the Court of Military Appeals, this Court’s former name. See § 924(a), 108 Stat. 2831.

3 . See 41 MJ 213, 229 n. * (1994)..