Alexander the Great, the Gordian Knot, and the Problem of Multiplicity in the Military Justice System

• Author: Major William T. Barto
• Pages: 01

I Introduction'

Alexander the Great crossed the Hellespont and invaded Asia Minor ~n 334 B.C. In the spring of the next year, he found hmself at the gates of the Phrygian uty of Gordium,2 the home of the mythical figure Midas. Quintus Curtius Rufus, a Roman historian, tells what happened next.

Alexander reduced the city and entered the temple of Jupiter. Here he saw the carriage on which they said Midas' father, Gordms, used to ride. In appearance it was little different from quite inexpemive and ordinary car. riages, its remarkable feature being the yoke, which was strapped down wth several knots all so tightly entangled that it was impossible to see how they were fastened. Since the local people claimed that an oracle had foretold mastery of Asia for the man who untied this impossible

* Proiessar, Criminal Law Depanmenr, The Judge .4dwcate Generaye School, United States h y ,

Charlottesdle. Virpma. B A , The Jahni Haphns Univenity, 1981. J D. with Honors, Urnremit) of North Carolina at Chapel H111.

1980. LL MI

'The

Judge Advocate GeneraPo School, United States Army, 1894, Member of the Bar of Sonh Carolina. admitted to practice before the Umted States Supreme Coun. the Unlted States Caun of .4ppeala for the Armed Farces, the Army Court af Cnmmal Appeals. United States Court Ofhppeals for the Fourth Circmt. and the United States Dietrim Court, Eastern DIrtnct of Sarth Carolina & Weestern District aflvashingon

This BnLcle 1s based upon a paper presented by the author to the 1989 Judicial Conference epmaored by the United States Court af Appeals for the Armed Forces I uould espeeially like to rhank Mr Francis A. Gilligsn, Senior Legal Advlaar to JudgeCrawford. far uwng me to expand upon my remark8 m the farm of an annle and epurringme to think ~iiti~sllyabout fhia diixcult ares offhe law I also thank Malar Mark S Martma, Deputy Director, Center far Law and Milrtaly Operatmi, whose insights and helpfil eamments helped make the orlgnal preseniatm a iueces~

QunrLi CLRTlLS RUFUS. THE HliToRI OF ALEx&\DER 302 (Penguin Books 1984)[hereinafter Q CURrlUB RuFlsl

'

I

knot. the desire to fulfill the prophecy came over Alexander. The king was surrounded by a crowd of Phrysans and Mlacedoman8. the farmer all in suspense about his attempt at untj-ing It, the latter alarmed at the kings auerconfidence-for, in fact, the series of knots was pulled so tight that it wes impossible to work out or see where the tangled mass began or ended, and what particularly concerned them about the kings attempt at unty. ing it was that an unsuccessful effort should be taken as an omen 3

Alexander eventually solved the problem of the original Gordian Knot in his orrn unique way? The mhtary justice system has confronted a Gordian Knot of Ite own for some time now, it is the knot formed bg the intersection of the law of double jeopardy, multi. plicity, and lesser-included offenses,j a knot so tightly entangled that it has confounded the efforts of the courts, commentators, and practitioners to untie it Supreme Court Chief Justice Rehnquist has labeled the law m this area ''a ventable Sargasso Sea which could not fail to challenge the most intrepid judicial navigator 'W In somewhat less colorful prose. Justice Blackmun once described the case law m this field 8s B "continuing struggle to create order out of the confusion and cham of the lenghening list ofThe rhetoric has at times approached the theologxal, with Judge James of thefir Force Court of Military Review once asserting, in a now famous paasage. that there LJ a particular inner circle of the eternal inferno in which "the damned endlessly debate multiplicity

The United States Court of Appeals far the Armed Force? (CMF or, ae named prior to October 1994, the COMA, the Court of Military Appeal~l~has done much to simplify the law of double jeop. ardy, mult~plic~ty.and lesewincluded offenses under the military

decisions

for eentenc,ng "f

4 See in/m note 176 and serompanymgtext

8 On 5 October 1594. the National Defense .Authonzstm Act Sar Fmal Year 1995, Pub L Uo 103-337 106 Star 2663 ,19948, changed the names of the United StaresCauna of Mllnal)' hweu and rhe Caun ofhld~tan Apppeela the me* namec are the United States Caurtb of Criminal Appeals and the Lnlted States Caun of Appeals for the Armed Farces respecfn.ely For the purpose ai this article the name of the CeYR at the time that B p~ni~ularease UBI decided 1: the name that KLII be "red in reSerrrllp to rhat decision See United State8 v Sanders 41 41 J 455. 485 n 1 19551

justice The CAAF has refashioned military practice in this area to be largely consistent with federal criminal practice," except to the extent necessary to accommodate unique charactensties of the military justice system.12 However, the court's recent decisions inthis area hare uncovered a number of perplexing questions for mihtary justice practitioners.'3

This article examines the current state of militav practice in the area of double jeopardy, multiplicity, and lesser-included affens-es; it identifies problems facing the military justice practitioner 88

well as the courts, and recommends how the military appellate courts, military justice practitioners, and the President may rectify the identified problems. Toward these ends, this article beDns by explonng the meaning of the term multiplicity and serutminng its

V I C ~ S . ~ ~

The article will then attempt to explain the current state of the law in the military justice and consider the ramifica. tmns for the military justice pract>tioner.l6 The article concludes with B proposal for reform li

11. Multiplicity Defined

It is a useful, but sometimes overlooked, practice to b e p any exploration of the law of multiplicity by defining the term "multipheity." The dictionary tells us that it means "a multitude or great num-ber" or "the state of being . . . mamfold."ls Far more useful for our purposes 18 the frequently-cited definition offered by Professor \Tight in hi6 treatme Federal Practice and Procedure: '"Multiplicity' is the practice ofcharmng the same offense in several counts."19 In the military, we could say that multiplicity ie the practice of alleeng the same

offense m several charges or speufications 2o Offenses that are found to be the "same" are then referred to as bemg "multiphcious."21

111. The Vices of Yi?ultiplicit>- A. Wh) Are 1% Concerned?

The question arises as to why multiplicity and multiplnous offenses are things to be avoided; the? do not appear to be. in and of themselrea. bad things Indeed, the cornmentar) to the American Bar Association Prosecution Function Standards probably sags It best by noting that a defendant who riolates several ststuton provisions in a dingle criminal transaction "can hardlg camplam of 'aver-charging if there 1s evidence of canduct supporting each charge '122

hhltlpllCitg is therefore undesirable only to the extent that it may breach certain constitutional. ststuton., or regulaton. prohibitions 23

2. Multiplicity and Double Jeopard)

   hlultiplicit>- potentially implicates se\eral constitutional pro. tectioni The Fifrh Amendment, in relevant part, prohibits the gov ernment from placing an mdiwdual twice ~n jeopardy of life or limb for the same offen8e.2' This protection applies not only to COIISBCU.

   tive tnala for the same offense but it operates TO prevent the imposition of multiple pumahments for the same offense in a single tnal 26

   *C Cf ~.L\LV

   FOR CO~TE-LL~RTIV.

   1~1-m

   STATES

   R C M 90ilb ,38 diecursion [hereinafter NCM1 I'd specification may slio be multiplicmus uilh anarhsr 11995 edIf they describe the same miiconduct in tuo different WB)I "I

   Id

   This latter protection has been described by commentators and courts as the "multiple punishment doctnne,''26 and it IS considered the "oldest and most widely recognized guarantee in the Bill of Rights ''2j Accordingly, the primary vice of mult~plicity is that it could lead to the imposition of multiple punishments far the Same offeense--a potential violation of the Constitution 28 In the military justice system, violation of the multiple punishment doctrine can produce even more significant detrimental effects to an accused than in most civilian courts because the Rules for Courts-Martial provide that the maximum authorized punishment may be imposed far each offense of which the accused 1s found guiltyzg

   C Multiplicity and Due Process

   Another constitutional aspect of multiplicity has received little attention from the courts and practitioners Multiplicity may have an adverse psycholomcal effect on the trier of fact by suggesting that an accused has committed not one but several thereby interfering with the due process rights af the accused to prepare and present a defense and to receive a fair tnal under the rule of law.31 Neverthelese, the courte have traditionally given the government ''broad discretion to conduct cnmmal prosecutions, including . .

   [the] power to Select the charges to be brought in a particular

   C B S ~ ' ' ~ ~

   The United Stater Supreme Court has gone so far as to hold

   zi See id st 2222-23

   separate crimes ma): 8n a paiticulai case, create the 'mpreseian that the aeeued LQ a 'bad cherscrer'and thereby lead the ~ ~ u n - m ~ r t d to redie agamt hm doubt eresf. ed by the endend), Pointer, United Stales. 161 US 396. 403 (18961 (reeognmnp that the court must not permit the defendant to he a multipheify af chargee embraced ~n one indictment

   convening authority 88 IO the ienouenese of the ~ ~ ~ m ~ n a l canduct ~n questlan, auch

   pleading, if done dehberately, could ruse "a grave question of perversion aithe eoun. martial pmeeseee " See .Middleton. supra. st 12 U B C 3% A at 58, 30 C hl R at 58 (faatnote amatred)

   32 B ~ I I k t e d states, 470 us a s

   a59 ci9asj

   "that even ahere the [Double Jeopardy] Clause bars cumulatiie punishment for a poup of offenses. 'the Clause does not prohibit the State from prosecuting [the defendant1 for such multiple offenses in a mngle prose~ution."'~~

   In light of the breadth...