Military Appeals Court Tests Supreme Court Decision at Fordham


A panel of judges from the U.S Army Court of Criminal Appeals heard oral arguments in a manslaughter case at Fordham Law on Friday—the first military court to sit at the new Fordham Law building’s Gorman Moot Courtoom and the first to test a recent Supreme Court decision redefining causation in criminal negligence.

Attorneys from the Judge Advocate General’s Corps contended in Bailey v. United States Army that Specialist Daniel C. Bailey deserved a new court martial on two counts: a military judge’s error in his instructions to a convicting tribunal and the same judge’s decision to allow testimony from an expert witness who based her assessment on a toxicology report instead of an independent blood test.

Representing Bailey, who was dishonorably discharged and is currently serving two years in detention, Lieutenant Colonel Jonathan Potter claimed that the 2014 decision of the Supreme Court in Burrage v. United States, which held that the law considers causation as a hybrid of two constituent parts, actual cause and proximate cause, applied to Bailey, although the Court reached its opinion three years after the 2011 incident. On December 12, 2011, Bailey—allegedly high on a synthetic cannabinoid called “spice”—lost control of his pickup truck in Fort Gordon, Georgia, collided with an oncoming vehicle, and swerved into a sidewalk killing a bystander.ArmyCourtSitting

“He was not the but-for cause of the death,” Potter said, “and in Burrage, there must be a but-for cause—an independently sufficient cause. That but-for the defendant’s action, the collision caused the accident, and the accident caused the death.”

Taking the government’s position, Captain Scott Goble stated the military judge’s instructions did not conflict with Burrage, and that the government met the burden of proof: that the harm would not have occurred in the absence of—that is, but-for—the defendant’s conduct. “The panel had to find that the accused committed an act, the act was negligent, and the negligent act caused the death,” Collins said.

The U.S Army Court of Criminal Appeals, located in Fort Belvoir, Virginia, brought the Bailey hearing to Fordham as a part of its Project Outreach, which allows law schools, military bases, and other public facilities to have an inside look at the process of actual military hearings. The military also uses the opportunity as a soft recruitment tool for its JAG corps, a commission whose primary purpose is to support warfighters through a number of civil services and provide the structure for maintaining discipline in the armed services.

The court, headed by Chief Judge [Brigadier General] Paul S. Wilson, a 26-year veteran of the JAG Corps, reviews about 700 appeals each year, normally granting oral argument at the appellant’s request. Unlike most appellate courts, the Army court has independent fact-finding authority and responsibility under the Uniform Code of Military Justice. The court will occasionally find new issues that affect the outcome at the trial court without appellant’s defense counsel identifying them. The hearing was attended by Major General (ret.) Michael J. Nardotti ’76, who served as Army Judge Advocate General from 1993-1997 and is now a partner at Squires, Patton, and Boggs.

“Due to the conduct or the size of the military, we have been reviewing fewer and fewer cases per year,” Wilson told students after the hearing. The court will deliberate and reach its decision on Bailey in the coming weeks, before heading to law schools in the Midwest.

–Adrian Brune

Cadets speak with Fordham Law Dean Matthew Diller (left) and alumnus Michael Nardotti '76 (second from right).

Cadets speak with Fordham Law Dean Matthew Diller (left) and alumnus Michael Nardotti ’76 (second from right).


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