The saga of Sergeant Bowe Bergdahl has inspired much discussion among lawyers and laypersons alike. This blog has covered the Bergdahl case’s development assiduously. A particularly animated discussion has developed around the question of whether the President’s commentary regarding the case has impermissibly tainted the military justice system’s ability to afford Sergeant Bergdahl a fair trial.

In an effort to reassure the public that the military justice system is made of sterner and more independent stuff than its critics might suppose, the White House recently issued a missive declaring:

The President expects all military personnel who are involved in any way in the military justice process to exercise their independent professional judgment, consistent with applicable laws and regulations.

This blog characterized that press release as being a “predictable statement of the obvious.”

A recent article by University of New Mexico Law Professor Joshua Kastenberg offers a vantage point from which to observe the unfolding controversy. His article in the Southwestern Law Review is entitled Command Responsibility in the Twenty First Century: The United States Basic Framework and Future Military (and Quasi-Military) Operations, 46 Sw. L. Rev 379 (2017). The article describes the character of Presidential command authority, the obligations that come with it, and the means of making a President accountable for it.

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THE WHITE HOUSE

Office of the Press Secretary

FOR IMMEDIATE RELEASE

October 20, 2017

*Statement Regarding Military Justice*

**

Military justice is essential to good order and discipline, which is indispensable to maintaining our armed forces as the best in the world. Each military justice case must be resolved on its own facts. The President expects all military personnel who are involved in any way in the military justice process to exercise their independent professional judgment, consistent with applicable laws and regulations. There are no expected or required dispositions, outcomes, or sentences in any military justice case, other than those resulting from the individual facts and merits of a case and the application to the case of the fundamentals of due process of law by officials exercising their independent judgment.

###

Source.

Thanks to our reader for the tip.

CAAF will hear oral argument in the Coast Guard case of United States v. Bailey, No. 17-0265/CG (CAAFlog case page), on Wednesday, October 25, 2017, at 9:30 a.m. Nineteen months after it approved the NMCCA’s definition of the statutory term incapable of consenting, CAAF will consider whether such a definition must be provided to members. The court granted review of two issues, but only the first was briefed:

I. Upon request by the defense counsel and using a defense-drafted instruction, should the military judge have provided the members with an explanation of the term “incapable.”

II. Whether the decision of the United States Coast Guard Court of Criminal Appeals is ambiguous as to whether the affirmed sentence included forfeiture of all pay and allowances.

A general court-martial composed of members with enlisted representation convicted Seaman (E-3) Bailey, contrary to his pleas of not guilty, of three specifications of sexual assault, one specification of abusive sexual contact, and one specification of assault consummated by a battery in violation of Articles 120 and 128. The panel sentenced Bailey to confinement for 18 months, total forfeitures, and a dishonorable discharge.

The charges arose out of an alcohol-fueled sexual encounter between Bailey and a 24-year-old woman. Bailey was alleged to have committed sexual acts and contacts with the women when she was incapable of consenting due to impairment by a drug, intoxicant, or other similar substance. See Article 120(b)(3)(A), 10 U.S.C. § 920(b)(3)(A). At trial, Bailey’s defense counsel asked the military judge to instruct the members that incapable of consenting means complete and total impairment, proposing the following language:

“Incapable” means a complete and total mental impairment and incapacity due to the consumption of alcohol, drugs, or similar substance; while asleep or unconscious; which rendered the alleged victim completely unable to appraise the nature of the sexual conduct at issue, completely unable to physically communicate unwillingness to engage in the sexual conduct at issue, or otherwise completely unable to communicate competent decisions.

App. Br. at 6. The prosecution opposed giving the instruction, the military judge did not give it, and Bailey was convicted.

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CAAF will hear oral argument in the Army case of United States v. Gonzalez-Gomez, No. 17-0200/AR (CAAFlog case page), on Tuesday, October 24, 2017, after the oral argument in Short. A single issue questions the 2 years, 1 month, and 20 days it took a three-judge panel of the Army CCA to issue a published decision in the case. That decision granted relief for the 1 year, 9 months, and 3 days it took the convening authority to act on the result of trial; a length of time CAAF’s precedent presumes to be unreasonable. Writing for the panel, Senior Judge Mulligan noted that:

The only plausible explanation for this extraordinary delay is a total lack of rigor and accountability in the SJA’s office.

United States v. Gonzales-Gomez, 75 M.J. 965, 969 n.3 (A. Ct. Crim. App. Nov. 30, 2016) (link to slip op.). In a concurring opinion Judge Wolfe added:

These delays reflect a lack of leadership, not resources. It is carelessness so stark the United States does not even try to defend it. Given the egregiousness of the delay, and the lack of any effort to explain it, I would find this convening authority and his staff violated appellant’s due process rights.

75 M.J. at 969 (Wolfe, J. concurring). The panel found no due process violation, however it reduced the adjudged sentence by 180 days.

Private (E-1) Gonzales-Gomez was sentenced to confinement for six years and a dishonorable discharge. The convening authority approved the sentence as adjudged. Gonzales-Gomez was released from post-trial confinement on November 29, 2016; one day before the Army CCA’s decision that reduced his sentence by 6 months.

CAAF then granted review to determine:

Whether dilatory post-trial processing violated Appellant’s due process rights and warrants relief when 782 days elapsed between docketing at the Army Court and opinion.

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Four years ago an Air Force lieutenant colonel who was the chief of the service’s Sexual Assault Prevention and Response office was accused of sexual assault. The NBC story we referenced in this post isn’t on the web anymore, but here’s a report from another source about the accusation.

The sexual assault charges were eventually dropped, and other charges ended with an acquittal, but the meme economy made the case infamous (link is to YouTube video that’s still plenty relevant).

Today, Craig Whitlock of the Washington Post reports here (backup here) that:

The Army is grappling with a resurgence of cases in which troops responsible for preventing sexual assault have been accused of rape and related crimes, undercutting the Pentagon’s claims that it is making progress against sexual violence in the ranks.

In the most recent case, an Army prosecutor in charge of sexual assault investigations in the Southwest was charged by the military last month with putting a knife to the throat of a lawyer he had been dating and raping her on two occasions, according to documents obtained by The Washington Post.

Additionally, a soldier at Fort Sill, Okla., who was certified as a sexual-assault-prevention officer was convicted at a court-martial in May of five counts of raping a preteen girl.

Army officials confirmed to The Post that eight other soldiers and civilians trained to deter sex offenses or help victims have been investigated over the past year in connection with sexual assault. The Army would not provide details, saying that many of the investigations are pending.

A reader forwarded me this motion to dismiss filed yesterday by the defense in the Bergdahl case. The basis for the motion is a comment President Trump made about the case during a press conference on Monday:

At 1:47 p.m. on 16 October 2017, President Trump held a joint press conference in the Rose Garden with Senate Majority Leader Mitch McConnell. According to the official transcript, the following colloquy occurred between the President and a member of the press corps:

Q Mr. President, Ronica Cleary with Fox 5.

THE PRESIDENT: Yes.

Q Do you believe that your comments in any way affected Bowe Bergdahl’s ability to receive a fair trial? And can you respond to his attorney’s claims that —

THE PRESIDENT: Well, I can’t comment on Bowe Bergdahl because he’s — as you know, they’re — I guess he’s doing something today, as we know. And he’s also — they’re setting up sentencing, so I’m not going to comment on him. But I think people have heard my comments in the past.

(Emphasis added.)

Mot. at 2. The motion then argues that:

President Trump stands at the pinnacle of an unbroken chain of command that includes key participants in the remaining critical steps of the case. Among these are the Military Judge, the staff judge advocate, the general court-martial convening authority, and the judges of the Court of Criminal Appeals.

Mot. at 3.

Why this justifies “dismiss[ing] the charges and specifications,” Mot. at 1, after Bergdahl pleaded guilty, is anybody’s guess.

Presumably, however, Bergdahl’s defense team will voir dire the military judge prior to sentencing.

The motion also states:

The defense offers the transcript and a DVD of the colloquy reproduced above in support of the motion. We assume the government will not contest their authenticity and accuracy. If that is incorrect, we will ask that President Trump be called to testify telephonically.

Mot. at 3 (emphasis added). The prospect of calling the President to testify by telephone about a statement that was recorded, broadcast (watch it here), and witnessed by a great many people (any of whom could testify that it was said) is almost as ridiculous as dismissal would be.

Updated to add: I previously addressed the President’s comments about the Bergdahl case in this post, in which I wrote:

Dismissal is a remedy for unlawful command influence, but it’s the most extreme remedy and it means that Bergdahl could never receive a fair trial in the wake of Trump’s pre-election comments. Getting a fair trial may be harder than it would have been before the comments – or it could be easier if the court-martial members think the comments were inappropriate and hold them against the prosecution – but there’s no evidence that a fair trial is impossible.

In that post I also observed that:

There’s absolutely no evidence that the military judge (Colonel Jeffrey Nance) or the multiple appellate military judges who have considered this issue are the slightest bit afraid to correct injustice when they see it. Rather – as I noted here in the context of comments by Senator McCain that Bergdahl also tried to use to win a dismissal – the reaction of Simpsons character Monty Burns to the Germans seems closer to the true feelings of Army trial and appellate military judges in the face of any kind of improper influence.

Earlier this year, in this post, I discussed the NMCCA’s opinion in United States v. Dinger, 76 M.J. 552 (N.M. Ct. Crim. App. Mar. 28, 2017), in which a three-judge panel of that court affirmed that military retirement isn’t really retirement, it’s merely a change in duty status, and those who retire from active duty and receive retired pay remain subject to the UCMJ.

On Monday CAAF granted review, but of a narrow issue:

No. 17-0510/MC. U.S. v. Derrick L. Dinger. CCA 201600108. 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 hereby granted on the following issue:

10 U.S.C. § 6332 STATES THAT WHEN A PERSON IS PLACED IN A RETIRED STATUS, THIS “TRANSFER IS CONCLUSIVE FOR ALL PURPOSES.” CAN A COURT-MARTIAL LAWFULLY SENTENCE A RETIREE TO A PUNITIVE DISCHARGE?

Briefs will be filed under Rule 25.

The same issue is likely raised in Hennis – which is before the court for mandatory review under Article 67(a)(1) – because Hennis was a retiree who was sentenced to death and “a sentence of death includes a dishonorable discharge or dismissal as appropriate.” R.C.M. 1004(e).

One day after CAAF granted review of the same issue in a different case, the NMCCA reconsiders its decision in United States v. Motsenbocker, No. 201600285 (original decision discussed here) (link to op. on recon) and holds that the failure to object to improper argument merely forfeits any error.

Senior Judge Hutchinson again writes for the panel:

[U]pon reconsideration, we conclude Ahern is distinguishable from the case at bar and does not mandate the application of waiver. Instead, we adhere to the longstanding precedent reaffirmed in Pabelona, Fletcher, and Diffoott and apply a plain error analysis to those allegations of improper argument not preserved by objection.

United States v. Motsenbocker, No. 201600285, slip op. at 5 (N.M. Ct. Crim. App. Oct 17, 2017) (op. on recon.) (link to slip op.). The opinion distinguishes Ahern for two reasons:

First, Ahern was not a case that involved allegations of improper argument under R.C.M. 919(c); rather, it dealt specifically with waiver as it applied to MIL. R. EVID. 304. As such, the defense counsel in Ahern had numerous opportunities to object to the admission of the evidence at issue both before and during the trial. Ahern, 76 M.J. at 198. Yet, Ahern’s defense counsel did not contest a government motion in limine to admit the evidence, and later affirmatively stated he had no objection to the admission of that evidence. Id.

Second, the CAAF decided Ahern less than three months after deciding Pabelona, but did not cite or otherwise reference Pabelona, much less explicitly discuss any impact of its holding in Ahern on review of allegations of improper arguments—unobjected to at trial. See Pabelona, 76 M.J. at 11 (“Because defense counsel failed to object to the arguments at the time of trial, we review for plain error.”) (citation omitted).

Slip op. at 5. I think there are more reasons, but this works.

This decision now leaves the Army CCA as the only federal court to hold that the failure to object to improper argument waives any error. Cf. United States v. Young, 470 U.S. 1, 14 (1985) (applying plain error to claim of improper argument).

Despite a different standard of review, however, the NMCCA still affirms the findings and sentence in Motsenbocker.

In an order issued yesterday (but not yet on the court’s website update: now on the court’s site) CAAF granted review of the following issue in the Army case of United States v. Marcum, No. 17-0491/AR (CCA’s opinion noted here):

No. 17-0491/AR. U.S. v. Nicholas S. Marcum. CCA 20150500. 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 hereby granted on the following issue:

APPELLANT CLAIMED THE PROSECUTION’S ARGUMENTS ON FINDINGS AND SENTENCE WERE ERRONEOUS AND PREJUDICIAL. THE COURT BELOW APPLIED THE STANDARD OF REVIEW IN UNITED STATES v. AHERN, 76 M.J. 194 (C.A.A.F. 2017), AND DID NOT FIND PREJUDICE. DID THE COURT BELOW ERR, BECAUSE THE PROPER STANDARD OF REVIEW IS FOUND IN UNITED STATES v. SEWELL, 76 M.J. 14 (C.A.A.F. 2017) AND UNITED STATES v. PABELONA, 76 M.J. 9 (C.A.A.F. 2017)?

Briefs will be filed under Rule 25.

CAAF will hear oral argument in the Army case of United States v. Short, No. 17-0187/AR (CAAFlog case page), on Tuesday, October 24, 2017, at 9:30 a.m. A single issue questions the propriety of the trial counsel’s closing argument in a case where the defense counsel did not object to the argument, but did make multiple sustained objections during the prosecution’s case:

Whether government counsel committed prosecutorial misconduct when they made improper argument after repeatedly eliciting inadmissible testimony.

Sergeant (E-5) Short was convicted contrary to his pleas of not guilty, by a general court-martial composed of members, of simple assault and assault consummated by a battery, and was sentenced to a bad-conduct discharge. The convictions were based on allegations of domestic violence by Short of his wife (Short was acquitted of additional allegations), and the prosecution sought to introduce evidence regarding the general nature of the marital relationship. The defense objected and the military judge agreed with the defense, prohibiting the prosecution from eliciting most of its desired testimony.

Despite the military judge’s ruling, however, the trial counsel elicited improper testimony about the relationship. Short’s brief asserts that during the wife’s testimony, “there were six sustained hearsay objections, three sustained leading objections, one violation of the Section III disclosures, one violation of the Mil. R. Evid. 412 ruling, and nine violations of the Mil R. Evid. 404 ruling.” App. Br. at 8. More sustained objections occurred during the testimony of other prosecution witnesses and during cross-examination of defense witnesses. The defense repeatedly requested a mistrial, but those requests were denied. The military judge did, however, give numerous curative instructions.

Then, during closing argument, the trial counsel:

commented to the panel that SGT Short “stared at [Mrs. NS] for the entire afternoon while she gave that testimony.” (JA 446). Counsel then asked the panel to “[i]magine how uncomfortable and how terrifying it was to sit on that stand.” (JA 502).

App. Br. at 11 (marks in original). There was no objection to this argument.

The Army CCA reviewed Short’s case last year, affirming the findings and sentence in a per curiam opinion that is notable in two respects.

First, the CCA limited its review to the military judge’s actions, holding that “as a court of criminal appeals we grade the homework of the trial court, not the trial counsel.” United States v. Short, No. 20150320, slip op. at 3 (A. Ct. Crim. App. Nov. 17, 2016). This seems to run contrary to CAAF’s precedent that “look[s] at the cumulative impact of any prosecutorial misconduct on the accused’s substantial rights and the fairness and integrity of his trial.” United States v. Fletcher, 62 M.J. 175, 184 (C.A.A.F. 2005)

Second, the CCA reviewed the closing argument, to which there was no objection, for plain error (finding none). This is contrary to a more recent, en banc, decision of the same court holding that the failure to object to improper argument waives any error. See United States v. Kelly, __ M.J. __, No. 20150725 (A. Ct. Crim. App. Jul. 5, 2017) (discussed here), rev. granted on other grounds, __ M.J. __ (C.A.A.F. Oct. 12, 2017) (noted here). The Navy-Marine Corps court agreed, adopting the Army court’s reasoning on this issue.

Considering this, CAAF’s review will almost certainly reach beyond the facts of this case, touching on both the appropriate scope of a CCA’s review and the standard of review for argument in the absence of an objection at trial.

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As suspected here, and expected here, the Associated Press reports here that Sergeant Bergdahl pleaded guilty this morning.

Surprisingly, the guilty pleas (a dive) were entered without the benefit of a pretrial agreement (a naked plea). From the AP report:

FORT BRAGG, N.C. (AP) — Army Sgt. Bowe Bergdahl, a Taliban captive for five years after abandoning his post in Afghanistan, pleaded guilty Monday to desertion and misbehavior-before-the-enemy charges that could put him in prison for life.

“I understand that leaving was against the law,” said Bergdahl, whose decision to walk off his remote post in Afghanistan in 2009 prompted intense search and recovery missions, during which some of his comrades were seriously wounded.

Bergdahl, 31, is accused of endangering his comrades by abandoning his post without authorization. He told a general after his release from five years in enemy hands that he did it with the intention of reaching other commanders and drawing attention to what he saw as problems with his unit.

The prosecution made no agreement to limit Bergdahl’s punishment in return for the soldier’s guilty pleas. The judge, Army Col. Judge Jeffery R. Nance, reminded Bergdahl that he could spend the rest of his life in prison, and asked him one last time if he wanted to plead guilty. “Yes,” Bergdahl replied, and the judge accepted the pleas.

(emphasis added).

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 October 24, 2017.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Tuesday, October 17, 2017, at 10 a.m.:

United States v. Bodoh, No. 20150218

Issues:
I. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY DENYING THE DEFENSE MOTION TO DISMISS FOR VIOLATION OF R.C.M. 707.
II. WHETHER THE MILITARY JUDGE ERRED BY INSTRUCTING THE PANEL THAT A NEGLIGENT MENS REA WAS SUFFICIENT TO MAKE APPELLANT’S OTHERWISE LAWFUL CONDUCT CRIMINAL.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on October 24, 2017. The argument will be heard at the Florida International University College of Law.

This week at the CGCCA: The Coast Guard CCA has a new website, but the link to its docket doesn’t work.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on October 31, 2017.

CAAF granted review in four cases yesterday, three of which were previously discussed on this blog.

The first is Barker, in which the Air Force CCA found that the military judge improperly admitted two unsworn written victim-impact statements during sentencing, but that the error was harmless. I discussed the CCA’s published decision in this post. CAAF granted review of two issues challenging the admission of a third statement and the finding of harmlessness regarding the two improperly-admitted statements:

No. 17-0551/AF. U.S. v. Thomas E. Barker. CCA 39086. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

I. WHETHER THE COURT OF CRIMINAL APPEALS ERRED WHEN IT HELD PROPER FOUNDATION HAD BEEN LAID TO ADMIT EVIDENCE IN AGGRAVATION.

II.WHETHER THE COURT OF CRIMINAL APPEALS IMPROPERLY CONDUCTED A REVIEW OF THE PREJUDICE RESULTING FROM THE MILITARY JUDGE’S ERRONEOUS ADMISSION OF EVIDENCE IN AGGRAVATION.

Briefs will be filed under Rule 25.

The second is Hardy, in which the Air Force CCA found that a guilty plea waives any unreasonable multiplication of charges. I discussed the CCA’s published decision in this post. CAAF granted review of the CCA’s finding of waiver:

No. 17-0553/AF. U.S. v. Ryan A. Hardy. CCA 38937. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY HOLDING THAT APPELLANT WAIVED, RATHER THAN FORFEITED, HIS CLAIM OF UNREASONABLE MULTIPLICATION OF CHARGES.

Briefs will be filed under Rule 25.

The third is Armstrong, which the Army CCA decided without an opinion (summarily):

No. 17-0556/AR. U.S. v. Joseph R. Armstrong. CCA 20150424. 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 hereby granted on the following issue:

WHETHER ASSAULT CONSUMMATED BY A BATTERY IS A LESSER INCLUDED OFFENSE OF ABUSIVE SEXUAL CONTACT BY CAUSING BODILY HARM.

Briefs will be filed under Rule 25.

The fourth is Kelly, in which the Army CCA sitting en banc split 6-4 to conclude that it has no authority to set aside a mandatory minimum dismissal or dishonorable discharge for a sexual offense required by Article 56. I discussed the CCA’s opinion in this post (though I focused on a different issue). CAAF granted review of the CCA’s finding of no authority:

No. 17-0559/AR. U.S. v. Eric F. Kelly. CCA 20150725. 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 hereby granted on the following issue:

WHETHER A COURT OF CRIMINAL APPEALS HAS THE AUTHORITY TO DISAPPROVE A MANDATORY MINIMUM PUNITIVE DISCHARGE.

Briefs will be filed under Rule 25.

Disclosure: I represent Kelly in my personal capacity.

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

United States v. Mangahas, No. 17-0434/AF (CAAFlog case page): Oral argument audio.

United States v. Pugh, No. 17-0306/AF (CAAFlog case page): Oral argument audio.

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

United States v. Jacobsen, No. 17-0408/AR (CAAFlog case page): Oral argument audio.

United States v. Guardado, No. 17-0183/AR (CAAFlog case page): Oral argument audio.

United States v. Hennis, No. 17-0263/AR (motion to compel funding) (CAAFlog case page): Oral argument audio.