In the wake of President Trump’s recent grants of clemency in military cases, pardoned Army First Lieutenant Clint Lorance appeared on Fox & Friends this morning. Video and a report are available on the Fox News website, here. Among other things, Lorance reacted to yestetrday’s tweet from former Vice President Joe Biden that said that the President’s pardon decision “betrays the rule of law, the values that make our country exceptional & the men and women who wear the uniform honorably.” Shortly before Biden’s tweet, the President tweeted that he would not have granted clemency to Private Manning, whose 35-year sentence was commuted by President Obama.

In other news, CNN reports here on the Supreme Court’s grant in Briggs, with the observation that “this will be the first time the justices consider a sexual assault issue in the #MeToo era, wading into a years-long controversy over how the military addresses sexual misconduct in its ranks as service branches continue to face scrutiny over their lack of progress countering the problem.”

Additionally, the San Diego Union Tribune reports here that a military judge ruled that the public, mass apprehension of 16 Marine accused of human smuggling was unlawful command influence. The Union Tribune previously reported on a video of the apprehension, observing that:

On the morning of July 25, as 800 Marines stood in formation at the Camp San Mateo area of Marine Corps Base Camp Pendleton, 24 Marines’ names were called.

Fifteen were ordered to stand in a line in front of the battalion “to be recognized,” according to court filings in the case. The battalion sergeant major stood nearby, carrying a red folder that usually is associated with awards.

But these men weren’t awarded. The regiment sergeant major, Sgt. Major Matthew A. Dorsey pointed to the Marines in front and said, “NCIS, arrest these Marines.”

Three video clips of the incident are available here and also here. The Union Tribune reports that the military judge gave the prosecution “until next week to find a way to remedy what he said was actual and apparent unlawful command influence, or it could be devastating to their case.”

Finally, the Fayetteville Observer reports here on an interview with retired Army Lieutenant Colonel Kris Poppe, who was Major Hasan’s detailed military defense counsel.

This week at SCOTUS:  The Court granted the Solicitor General’s petitions for certiorari in Briggs and Collins (noted here), and consolidated the cases under Briggs. The Court also granted an additional extension of time to file a response to the petition in Richards. Finally, McDonald was distributed for conference on Dec. 6.

I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking five cases:

This week at CAAF: The next scheduled oral argument at CAAF is on December 3, 2019.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Thursday, November 21, 2019, at 10 a.m.:

United States v. McDonlad, No. 20180387

Issue: Whether the offense of communicating indecent language to a child under Article 134, UCMJ, has been preempted by Article 120b, UCMJ.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

This week at the CGCCA: The Coast Guard CCA will hear oral argument in one case this week, on Thursday, November 21, 2019, at 10 a.m., at the Navy-Marine Corps CCA courtroom:

United States v. Harpole (CAAFlog case page

Issue: Whether the DuBay Judge’s findings, which support the conclusion that trial defense counsel were not ineffective in failing to file a suppression motion on the basis of Article 31(b) where the victim advocate suspected SN Harpole of sexual assault and did not provide a rights advisement before questioning him, are clearly erroneous

This week at the NMCCA: The Navy-Marine Corps CCA, sitting en banc, will hear oral argument in one case this week, on Wednesday, November 20, 2019, at 9 a.m.:

United States v. Begani, No. 201800082

Issues:
A. Does Article 2 of the Uniform Code of Military Justice violate Appellant’s right to Equal Protection by subjecting him to court-martial as a member of the Fleet Reserve, if retired members of a reserve component are not subject to court-martial, except when receiving hospitalization from an armed force?

B. Are members of the Fleet Reserve “similarly situated” for Equal Protection purposes with retired members of a regular component and retired members of a reserve component?

C. What is the appropriate standard of review for this Court to apply to Article 2 in deciding an Equal Protection challenge?

Prior coverage:
NMCCA opinion (withdrawn)
Blog post: The NMCCA torpedoes Article 2
Blog post: The fundamental flaw in the NMCCA’s decision in Begani
Blog post: NMCCA withdraws opinion, grants reconsideration

In a press release available here, the White House announces:

Today, President Donald J. Trump signed an Executive Grant of Clemency (Full Pardon) for Army First Lieutenant Clint Lorance, an Executive Grant of Clemency (Full Pardon) for Army Major Mathew Golsteyn, and an order directing the promotion of Special Warfare Operator First Class Edward R. Gallagher to the grade of E-7, the rank he held before he was tried and found not guilty of nearly all of the charges against him.

. . .

The United States military justice system helps ensure good order and discipline for our millions of uniformed military members and holds to account those who violate the Uniform Code of Military Justice. Due in part to this system, we have the most disciplined, most effective, most respected, and most feared fighting force in the world.

The President, as Commander-in-Chief, is ultimately responsible for ensuring that the law is enforced and when appropriate, that mercy is granted. For more than two hundred years, presidents have used their authority to offer second chances to deserving individuals, including those in uniform who have served our country. These actions are in keeping with this long history. As the President has stated, “when our soldiers have to fight for our country, I want to give them the confidence to fight.”

Commutations and clemency were the #9 Military Justice Story of 2017 based on President Obama’s commutation of the death sentence for Private Loving and the sentence of confinement for 35-years for Private Manning. Both actions were taken in the last days of President Obama’s second term.

President Trump pardoned Army LT Behenna earlier this year (discussed here).

Last year we discussed presidential pardons for convicted wartime murderers, in this Scholarship Saturday post.

Today – in an order available here – the Supreme Court granted the Solicitor General’s petitions for certiorari in United States v. Briggs, No. 19-108, and United States v. Collins, No. 19-184. The Court consolidated the cases and allotted one hour for oral argument.

I discussed the petition in Briggs in this post. The petition directly challenges CAAF’s decision in United States v. Briggs, 78 M.J. 289 (C.A.A.F. Feb. 22, 2019) (CAAFlog case page), and indirectly challenges CAAF’s decision in United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page) (the #3 Military Justice Story of 2018)

I discussed the petition in Collins in this post. The petition involves two CAAF summary decisions: United States v. Collins, 78 M.J. 415 (C.A.A.F. Mar. 12, 2019) (CAAFlog case page), and United States v. Daniels, No. 19-0345/AF (noted here). Both cases were Briggs trailers.

This week at SCOTUS:  I’m not aware of any military justice developments at the Supreme Court, where I’m tracking six cases:

This week at CAAF: The next scheduled oral argument at CAAF is on December 3, 2019.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on November 21, 2019.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

This week at the CGCCA: The Coast Guard CCA’s website shows no scheduled oral arguments.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on November 20, 2019.

On Tuesday CAAF granted review in this Army case:

No. 19-0365/AR. U.S. v. Jason A. Scott. CCA 20170242. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:

WHETHER THE APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE SIXTH AMENDMENT OF THE CONSTITUTION.

Briefs will be filed under Rule 25.

A decision issued by the CCA in 2018 (discussed after the jump) is available here.

Read more »

Audio of today’s oral arguments at CAAF is available at the following links:

United States v. Davis, No. 19-0104/AR (CAAFlog case page): Oral argument audio (wma)(mp3)

United States v. Turner, No. 19-0158/AR (CAAFlog case page): Oral argument audio (wma)(mp3)

The audio is also available on our oral argument audio podcast.

In 2009, then-Private First Class Bergdahl walked away from his combat outpost in Patika Province, Afghanistan. He was captured by the Taliban and held in captivity for nearly five years. He was recovered in a May 2014 trade for five Guantanamo Bay detainees. Ten months later he was charged with desertion with the intent to shirk important service and avoid hazardous duty in violation of Article 85(a)(2), and with misbehavior before the enemy in violation of Article 99.

Bergdahl eventually pleaded guilty to both offenses without a pretrial agreement. In sentencing his defense counsel specifically requested that the military judge sentence him to a dishonorable discharge, and Bergdahl made it clear that he personally believed that a dishonorable discharge was the appropriate punishment. The military judge gave him that and little more, adjudging a sentence of reduction to E-1, forfeiture of $1,000 pay per month for 10 months, and a dishonorable discharge. The convening authority approved the sentence after Bergdahl elected to not request clemency.

Nevertheless, having pleaded guilty, requested a dishonorable discharge, made clear that a dishonorable discharge was appropriate, and not requested clemency, on appeal Bergdahl claimed that endemic unlawful command influence (UCI) denied him a fair trial, fair post-trial processing, or the appearance thereof, and sought dismissal of the charges. The Army CCA rejected the claim and affirmed the findings and sentence in a published decision discussed here. Bergdahl then petitioned CAAF for review (discussed here).

Yesterday, CAAF granted that review:

No. 19-0406/AR. U.S. v. Robert B. Bergdahl. CCA 20170582. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:

WHETHER THE CHARGES AND SPECIFICATIONS SHOULD BE DISMISSED WITH PREJUDICE OR OTHER MEANINGFUL RELIEF GRANTED BECAUSE OF APPARENT UNLAWFUL COMMAND INFLUENCE.

Briefs will be filed under Rule 25.

Audio of today’s oral arguments at CAAF is available at the following links:

United States v. Jessie, No. 19-0192/AR (CAAFlog case page): Oral argument audio (wma)(mp3)

United States v. Muller, No. 19-0230/AF (CAAFlog case page): Oral argument audio (wma)(mp3)

The audio is also available on our oral argument audio podcast.

The Judge Advocates Association (JAA) annual Jobs for JAGs program will occur on Thursday, December 5, 2019, at Jenner & Block, 1099 New York Avenue NW, Suite 900, Washington, DC  20001.

Click here for additional details and registration information.

Updates will be posted on the JAA’s Facebook and LinkedIn pages, at the following links:

https://www.facebook.com/JudgeAdvocatesAssociationJAA/

https://www.linkedin.com/groups/4458285

Last week CAAF granted review in this Marine Corps case:

No. 19-0377/MC. U.S. v. Nicholas S. Baas. CCA 201700318. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is granted on the following issues:

I. DID ADMISSION OF AN ALLEGEDLY POSITIVE DIATHERIX LABORATORIES TEST FOR GONORRHEA WITHOUT TESTIMONY AT TRIAL OF AN WITNESS FROM DIATHERIX, VIOLATE THE SIXTH AMENDMENT CONFRONTATION CLAUSE?

II. DID THE LOWER COURT ABUSE ITS DISCRETION IN ADMITTING AN ALLEGED POSITIVE DIATHERIX TEST RESULT FOR GONORRHEA IN A CHILD’S RECTAL SWAB-WHERE DIATHRIX FAILED TO FOLLOW ITS OWN PROCEDURES AND THE RESULT WAS OF NEAR ZERO PROBATIVE VALUE?

Briefs will be filed under Rule 25.

The CCA’s opinion is available here.

The appellant was convicted of numerous offenses including rape of a child. The evidence supporting the rape conviction included a positive test of the child for gonorrhea; a sexually-transmitted disease that the appellant told military law enforcement he had and that he encouraged them to test the child for in the belief that the test would exonerate him. Swabs were taken from the child and sent to Diatherix Laboratories, where a nucleic acid amplification test (NAAT) revealed the positive result. But the pediatrician who took the swabs explained that the NAAT was a screening test that was susceptible to false positives, and that urethral and rectal culture tests should be performed to confirm the diagnosis.

Those confirmatory tests were not performed. Rather, the child was treated with antibiotics, rendering further testing impossible. Nevertheless, the prosecution moved to introduce the NAAT result, and the parties litigated its admissibility. The military judge ultimately ruled that the result was admissible because the test was reliable and it was for the members to determine what weight to give the result.

The CCA considered and rejected the first granted issue, concluding that the Diatherix lab report was nontestimonial (and so could be admitted as business records) because the test was conducted primarily for treatment (not law enforcement), the report contained only unambiguous factual matters, and the report was not primarily created for the purpose of introducing it as evidence at trial.

The CCA’s opinion also references the underlying claim in the second granted issue – that the Diatherix laboratory failed to follow its own procedures – in a larger analysis of the military judge’s ruling that admitted the test result. The CCA affirmed the military judge’s ruling admitting the result.

This week at SCOTUS: On Oct. 28 a new cert. petition was filed in McDonald v. United States, No. 19-557. The petition is available here. In United States v. McDonald, 78 M.J. 376 (C.A.A.F. Apr. 17, 2019) (CAAFlog case page), a unanimous CAAF held that the mens rea (mental state) for the offense of sexual assault by causing bodily harm in violation of Article 120(b)(1)(B) (2012), where the bodily harm is a nonconsensual sexual act, is only the general intent to commit the sexual act, because “the burden is on the actor to obtain consent, rather than the victim to manifest a lack of consent.”

The question presented in the McDonald cert. petition is:

Whether Congress’s omission of a mens reafor the offense of sexual assault by bodily harm means mere negligence as to the lack of consent suffices.

The Solicitor General waived the right to respond on Nov. 1.

In other news, the cert. petition in Hutchins was distributed for conference on Nov. 15. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking six cases:

This week at CAAF: CAAF will hear oral argument in four cases this week:

Tuesday, November 5, 2019, at 9:30 a.m.

United States v. Jessie, No. 19-0192/AR (CAAFlog case page)

Issues:
I. Whether the Army court erred by considering military confinement policies but refusing to consider specific evidence of Appellant’s confinement conditions.

II. Whether the Army court conducted a valid Article 66 review when it failed to consider Appellant’s constitutional claims.

III. Whether Appellant’s constitutional rights were violated by a confinement facility policy that barred him from all forms of communication with his minor children without an individualized assessment demonstrating that an absolute bar was necessary.

Case Links:
ACCA opinion
Blog post: CAAF grants review
Appellant’s brief
Appellee’s (Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview

Followed by:

United States v. Muller, No. 19-0230/AF (CAAFlog case page)

Issues:
I. Whether rule 15.5 of the Air Force Court of Criminal Appeals Rules of Practice and Procedure is invalid because it conflicts with the Uniform Code of Military Justice, this Court’s precedent, the Joint Courts of Criminal Appeals Rules of Practice and Procedure, the recently updated Joint Rules of Appellate Procedure, and the prior and current appellate rules of the other service Courts of Criminal Appeals.

II. Whether the Air Force Court of Criminal Appeals deprived Appellant of his due process right to raise issues on appeal when it denied his timely request to file a supplemental brief on issues arising during remand proceedings.

III. Whether a Court of Criminal Appeals must require certificates of correction to be accomplished, vice accepting documents via a motion to attach, when it finds a record of trial to be incomplete due to a missing exhibit.

Case Links:
AFCCA opinion
Blog post: CAAF grants review
Appellant’s brief
Appellee’s (Gov’t Div.) brief
Appellant’s reply brief
Amicus brief: Navy-Marine Corps Appellate Defense in support of Appellant
Blog post: Argument preview

Wednesday, November 6, 2019, at 9 a.m.

United States v. Davis, No. 19-0104/AR (CAAFlog case page)

Issue: Whether the mens rea of “knowingly” applies to the consent element of Article 120c(a)(2), Uniform Code of Military Justice, 10 U.S.C. § 920c(2) (2016).

Case Links:
ACCA opinion
Blog post: CAAF grants review
Appellant’s brief
Appellee’s (Gov’t Div.) brief
Blog post: Argument preview

Followed by:

United States v. Turner, No. 19-0158/AR (CAAFlog case page)

Issue: Whether the specification of Charge I alleging an attempted killing fails to state an offense because it does not explicitly, or by necessary implication, allege the attempted killing was unlawful.

Case Links:
ACCA opinion
Blog post: CAAF grants review
Appellant’s brief
Appellee’s (Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview

This week at the ACCA: The next scheduled oral argument at the Army CCA is on November 21, 2019.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

This week at the CGCCA: The Coast Guard CCA’s website shows no scheduled oral arguments.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on November 20, 2019.

CAAF will hear oral argument in the Army case of United States v. Turner, No. 19-0158/AR (CAAFlog case page), on Wednesday, November 6, 2019, after the argument in Davis. The court granted review of a single issue:

Whether the specification of Charge I alleging an attempted killing fails to state an offense because it does not explicitly, or by necessary implication, allege the attempted killing was unlawful.

Specialist (E-4) Turner was convicted of attempted murder (the specification at issue), conspiracy to commit premeditated murder, maiming, and obstruction of justice, and sentenced to confinement for life without the possibility of parole, reduction to E-1, total forfeitures, and a dishonorable discharge. The Army CCA reversed the obstruction conviction (as factually insufficient) and conditionally dismissed the maiming charge, but affirmed the other findings and affirmed the sentence.

The specification of attempted murder alleged:

In that, Specialist Malcolm R. Turner, U.S. Army, did, at or near Clarksville, Tennessee, on or about 1 January 2015, attempt to kill with premeditation Specialist [C.SG.] by means of shooting her with a loaded firearm, causing grievous bodily injury.

App. Br. at 3 (quoting record) (emphasis omitted) (modification in original). Turner’s defense counsel objected to the specification at trial, asserting that the specification failed to actually state the offense of attempted murder because it did not allege that the attempted killing was unlawful (a necessary element of murder). The military judge overruled the objection and Turner renewed it on appeal, where the Army CCA held that the specification “alleges words of criminality sufficient to inform appellant that he was charged with the offense of attempted premeditated murder,” while observing that “not since the Civil War has Clarksville, Tennessee been close to a combat zone where appellant might claim that an attempted premeditated killing of a fellow American soldier could have been lawful.” United States v. Turner, No. 20160131, slip op. at 15-16 (A. Ct. Crim. App. Nov. 30, 2018). CAAF then granted review.

Read more »

CAAF will hear oral argument in the Army case of United States v. Davis, No. 19-0104/AR (CAAFlog case page), on Wednesday, November 6, 2019, at 9 a.m. CAAF granted review of one issue after the Supreme Court decided United States v. Rehaif, 139 S. Ct. 2191, 2196 (2019), and held that the word knowingly in 18 U.S.C. §924(a)(2) – which states the punishment for unlawful possession of a firearm in violation of other statutes – applies to the material elements of the other statutes:

Whether the mens rea of “knowingly” applies to the consent element of Article 120c(a)(2), Uniform Code of Military Justice, 10 U.S.C. § 920c(2) (2016).

Article 120c(a)(2) – which took effect in 2012 and is unchanged in its current form – prohibits indecent recording. Indecent recording occurs when a person:

Knowingly photographs, videotapes, films, or records by any means the private area of another person, without that other person’s consent and under circumstances in which that other person has a reasonable expectation of privacy.

A reasonable expectation of privacy is defined as a reasonable belief that one’s naked or underwear-clad genitalia, anus, buttocks, or female areola or nipple would not be recorded or visible to the public. See Article 120c(d).

Private (E-2) Davis was convicted of indecent recording for making a video of part of a sexual encounter involving himself and two other soldiers. The video showed Davis having sexual intercourse with one of the soldiers (who later alleged that the encounter was a sexual assault; Davis was acquitted of charges related to that claim). The findings were made by a panel of officer members, and the military judge instructed the members that the offense has four elements, including that Davis knowingly recorded the alleged victim and that the recording was without the consent of the alleged victim. The military judge did not instruct the members that Davis must have known that the alleged victim did not consent to the recording, but did instruct them that it was a defense if Davis has a reasonable mistake of fact belief that she consented.

Mens rea was the #8 Military Justice Story of 2017 because of a series of CAAF decisions involving the mental state required to violate the UCMJ. Davis may be another in that series.

Read more »

CAAF will hear oral argument in the Air Force case of United States v. Muller, No. 19-0230/AF (CAAFlog case page), on Tuesday, November 5, 2019, after the argument in Jessie. The court granted review of three issues involving the CCA’s review of a case that was returned to the convening authority because a prosecution exhibit was missing from the record of trial:

I. Whether rule 15.5 of the Air Force Court of Criminal Appeals Rules of Practice and Procedure is invalid because it conflicts with the Uniform Code of Military Justice, this Court’s precedent, the Joint Courts of Criminal Appeals Rules of Practice and Procedure, the recently updated Joint Rules of Appellate Procedure, and the prior and current appellate rules of the other service Courts of Criminal Appeals.

II. Whether the Air Force Court of Criminal Appeals deprived Appellant of his due process right to raise issues on appeal when it denied his timely request to file a supplemental brief on issues arising during remand proceedings.

III. Whether a Court of Criminal Appeals must require certificates of correction to be accomplished, vice accepting documents via a motion to attach, when it finds a record of trial to be incomplete due to a missing exhibit.

Airman First Class (E-3) Muller pleaded guilty to three specifications of violating Article 112a, and was sentenced to confinement for nine months, reduction to E-1, and a bad-conduct discharge. The convening authority approved the sentence as adjudged, and Muller’s detailed appellate defense counsel submitted the case to the Air Force CCA without any assignments of error. The CCA, however, found a problem: prosecution exhibit 7 (an enlisted performance report) was missing from the record of trial. The CCA ordered the Government Division to show cause why the CCA should not return the record to the convening authority for correction, and the Government Division responded by offering a document (purporting to be the missing exhibit) for attachment to the record. The CCA rejected the document and ordered the record returned to the convening authority for correction.

After some delays, the convening authority ordered the military judge to complete a certificate of correction for the missing exhibit. A certificate of correction is a document used to correct a record of trial after authentication of the record by the military judge. See Article 54 (pre-2019); R.C.M. 1104(d), Manual for Courts-Martial (2016 ed.). The authentication process was changed to a certification process in the Military Justice Act of 2016 and the 2019 edition of the Manual for Courts-Martial. See Article 54 (2019); R.C.M. 1112(d), Manual for Courts-Martial (2019 ed.). The new process, however, retains the ability of a military judge to correct a record of trial.

The certificate of correction in Muller was completed and the record was returned to the CCA and the case re-docketed. At that point Muller’s appellate defense counsel sought to file a brief raising two assignments of error; one claiming unlawful command influence in the certificate of correction process and the other asserting unreasonable post-trial delay. The Air Force CCA rejected the brief and summarily affirmed the findings and sentence, and then it denied Muller’s request for reconsideration.

CAAF will review whether the CCA was wrong to reject Muller’s brief and – in an issue apparently raised by the Government Division and that CAAF granted review of without requiring certification by the Judge Advocate General – whether the CCA could have simply attached the missing exhibit to the record without returning it to the convening authority for correction.

Read more »