Season 2 of the popular NPR podcast Serial was about the Bergdahl case, and the source material for the podcast included recordings of post-recovery interviews between Bergdahl and filmmaker Mark Boal. Specifically, there are roughly 25 hours of recorded conversations (according to the podcast – link to episode transcript) discussing Bergdahl’s life, the reasons he left his unit, and his capture and captivity. Some of those recordings were played during the Serial podcast, and they included numerous damaging admissions by Bergdahl (some discussed here).

It’s unsurprising that Army prosecutors would seek to obtain those recordings are review them for additional evidence. Boal, however, is trying to prevent that.

In a case filed in the U.S. District Court for the Central District of California on July 20, 2016, Boal seeks to enjoin issuance or enforcement of a subpoena for the recordings. The case is Mark Boal et al. v. United States of America et al., docket # 2:16-cv-05407-GHK-GJS.

A copy of the complaint is available here. It argues, in part, that:

Issuance and enforcement of the Subpoena will irreparably harm Plaintiffs. Either Plaintiffs will be forced to reveal unpublished and unbroadcast segments of interviews gathered for news and public affairs reporting purposes, which include confidential information, or Plaintiffs will be subjected to contempt proceedings for their failure to do so. Disclosure will irreparably damage Plaintiffs’ ability to gather news and give sources and subjects confidence in their ability to keep materials confidential. Contempt proceedings will cause loss of liberty or property that is unwarranted and unconstitutional. In either event, Plaintiffs – third parties to the Bergdahl court martial – will be unduly burdened by the Subpoena and forced to expend substantial sums on counsel.

Complaint at 6-7.

Various media outlets have coverage of the suit, including the Wall Street Journal (blog), the New York Timesthe Los Angeles Times, and The Hill.

The Silver CAAF Tongue award, while lacking physical manifestation, is a life-changing honor bestowed upon the counsel who argued the most cases at CAAF during the term. Past winners can be seen here.

The 2015 Term winner is Mr. Gerald “Roger” Bruce. Mr. Bruce is a retired Air Force Colonel employed as the associate division chief of the Air Force Government Trial and Appellate Counsel Division, Air Force Legal Operations Agency (AFLOA/JAJG). Mr. Bruce argued three cases before CAAF this term:

  • United States v. LaBella, 75 M.J. 52 (C.A.A.F. Dec. 11, 2015) (CAAFlog case page),
  • United States v. Williams, 75 M.J. 244 (C.A.A.F. May 3, 2016) (CAAFlog case page), and
  • United States v. Witt, __ M.J. __, No. 15-0260/AF (C.A.A.F. Jul. 19, 2016) (CAAFlog case page).

Of those three cases, the Government won one (LaBella).

Congratulations to Mr. Bruce!

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

This week at CAAF: CAAF has completed its oral argument calendar for the term. Details about this term’s cases are available on our 2015 Term of Court page.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on August 3, 2016.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on August 18, 2016.

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

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

Our #5 Military Justice Story of 2013 was the Wilkerson court-martial and its effects. Air Force Lieutenant General Craig Franklin exercised his authority under Article 60(c) to set aside the sexual assault conviction of Air Force Lieutenant Colonel James Wilkerson in 2013, and it was a military justice shot heard round the world. A frenzy of criticism erupted, and Congress ended the year by strictly curbing a convening authority’s previously unfettered ability to reduce the findings or sentence of a court-martial.

Another case involving General Franklin’s exercise of his authority (this time to dismiss a case before trial) resulted in a transfer of the case, defense claims of unlawful command influence, and eventually an acquittal on the merits.

The next chapter in this saga is CAAF’s order from Tuesday granting review:

No. 16-0546/AF. U.S. v. Rodney B. Boyce. CCA 38673. 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 specified by the Court:


Briefs will be filed under Rule 25.

The convening authority? Lieutenant General Franklin.

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CAAF decided the certified Marine Corps case of United States v. Howell, __ M.J. __, Nos. 16-0289/MC & 16-0367/MC (CAAFlog case page) (link to slip op.) on Tuesday, July 19, 2016. Unanimously affirming that a CCA has jurisdiction to consider a Government petition for extraordinary relief under the All Writs Act, CAAF splits 3-2 to find that the military judge erred in finding that the Government violated the Article 13 prohibition against pretrial punishment in connection with a pay dispute. CAAF remands the case back to the NMCCA for further consideration of the Government’s request for a writ of prohibition to prevent application of the military judge’s award of 343 days of confinement credit.

Judge Sparks writes for the court (in his first opinion), joined by Senior Judge Lamberth of the United States District Court for the District of Columbia (sitting by designation). Judge Stucky writes separately, concurring in the result. Judge Ohlson dissents from the result, joined by Chief Judge Erdmann, both of whom would find that Article 13 was violated.

CAAF reviewed four issues certified by the Judge Advocate General of the Navy; one certified at the request of the Defense and three certified at the request of the Government:

Defense issue:
I. Whether the Government may invoke Article 66, UCMJ, as the jurisdictional basis for an extraordinary writ pursuant to the All Writs Act when the issue is not included as a basis for Government appeal under Article 62, UCMJ?

Government issues:
II. Whether the military judge, in finding an Article 13, UCMJ, violation, exceeded his authority by rejecting applicable holdings of the U.S. Court of Appeals for the Federal Circuit and the Court of Federal Claims, in order to conclude that appellee was entitled to pay at the A-6 rate pending his rehearing?

III. Whether the lower court erred by concluding that the setting aside of appellee’s findings and sentence rendered his reduction to pay grade E-1 prospectively unexecuted pending rehearing?

IV. If a member’s original sentence includes an executed reduction to pay grade E-1 and the sentence is subsequently set aside, does the action of paying that member at the E-1 rate pending rehearing constitute illegal pretrial punishment in the absence of any punitive intent?

This case was included in our #4 Military Justice Story of 2014, as the appearance of unlawful command influence led to the reversal of Staff Sergeant Howell’s conviction of sexual assault. A rehearing was authorized. Howell was restored to his rank of E-6 and to full duty pending that rehearing, however he was only paid at the E-1 rate (based on the Government’s interpretation of the applicable military pay statutes and Article 75(a) which addresses restoration after a court-martial is set aside).

Howell complained and the military judge agreed that he was entitled to be paid as an E-6, finding that the Government’s actions constituted illegal pretrial punishment in violation of Article 13. As a remedy the military judge ordered that Howell receive credit against any sentence to confinement in the form of one day of confinement credit for each day of pay at the E-1 rate.

The rehearing proceeded and Howell was convicted and sentenced to confinement for nine years, reduction to E-1, total forfeitures, and a dishonorable discharge. The military judge’s ruling resulted in 343 days of confinement credit due to Howell. But then, prior to the convening authority taking action, the Government filed a petition for a writ of prohibition at the Navy-Marine Corps CCA seeking to reverse the military judge’s award of confinement credit. The NMCCA stayed the post trial proceedings and (in an opinion discussed here) granted the Government petition in part, reducing the award of credit to 308 days. The Judge Advocate General of the Navy then certified the case to CAAF.

With yesterday’s opinion CAAF overwhelmingly affirms the Government’s ability to seek such relief, and narrowly interprets Article 13 to require evidence of actual intent to punish (and not merely punitive effect).

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The Washington Post has made a significant disclosure in the ongoing case of Marine Major Mark Thompson (CAAFlog news page), who faces a second general court-martial after he invited the Post to look into his case: It published the audio of the final interview between Thompson and the Post reporter.

During a 45-minute interview in January — previously excerpted and now published in full online — reporter John Woodrow Cox showed Thompson copies of the text messages he uncovered and repeatedly asked Thompson why he had lied about Stadler’s late-night visit to his Annapolis home during her graduation weekend.

“I simply had to,” Thompson said in the recorded interview. “When they were coming after me for 41 years, I can’t begin to say, you know, how terrifying that is.”

If he’d been convicted of the rape charge, he might have faced a sentence that long. During the interview, Thompson continued to maintain that he had not had sex with either woman and offered more explanation for not divulging the text messages.

“If I were to say, acknowledge that I thought they were flirtatious, that moved me on the scale closer towards, well, it was probably a relationship,” he said. “So I avoided anything that looked like it could be unduly familiar or flirtatious.”

When Cox again pressed Thompson on why he’d lied, the Marine asserted that he was “never questioned” about his final encounter with Stadler. The reporter reminded Thompson that he had been asked about it both at the administrative hearing and “multiple times” by The Post.

“I simply wanted to distance myself,” Thompson said, “from anything that would look like there was more familiarity than there was.”

Article here. Audio here.

The audio is somewhat difficult to understand because of background noise.

The article also discusses one of the charges against Major Thompson: that he engaged in conduct unbecoming in violation of Article 133 by misleading the Post reporter.

CAAF decided the capital Air Force case of United States v. Witt, __ M.J. __, No. 15-0260/AF (CAAFlog case page) (link to slip op.), on Tuesday, July 19, 2016. In a short opinion the court sets aside the second decision of the Air Force CCA (that affirmed the sentence of death) and reinstates the first decision (that reversed the sentence of death), authorizing a sentence rehearing.

Judge Stucky writes for a unanimous court.

In 2005 a general court-martial composed of twelve officer members convicted Senior Airman Witt of the premeditated murder of a fellow Airman and his wife, and also of the attempted murder of another Airman, and sentenced Witt to death. About 18 months later the prosecution team published a detailed first-person account of the trial proceedings in the Air Force JAG Corps magazine, The Reporter (available here).

In 2013 Witt’s death sentence was set aside by the Air Force Court of Criminal Appeals sitting en banc (discussed here). The CCA unanimously concluded that Witt’s trial defense team was deficient in failing to investigate three areas relevant for the sentencing portion of the court-martial. But the court split 3-2 on the question of prejudice, narrowly finding that had Witt’s counsel not been deficient then the members might not have adjudged the death sentence. The CCA remanded for a sentence rehearing.

But then the Government sought reconsideration by the CCA, and in a dramatic reversal the court reinstated Witt’s death sentence in a second en banc decision issued in 2014 (discussed here). As it had in the first decision, the CCA again found that Witt’s trial defense counsel were deficient. But on the crucial question of prejudice the court split 4-2 to find that Witt was not prejudiced by his counsel’s errors, and accordingly it approved the adjudged sentence of death. This reversal of fortune was our #7 Military Justice Story of 2014.

Because Witt had an approved sentence of death, CAAF’s review was mandatory (see Article 67(a)(1)), and the court specified two issues that questioned whether the AFCCA could reinstate the capital sentence in the way that it did:

I. Whether a court of criminal appeals sitting en banc can reconsider a previous en banc decision of that court pursuant to statutory authority, applicable precedent, or inherent authority?

II. Whether a decision of a court of criminal appeals sitting en banc can be reconsidered en banc when the composition of the en banc court has changed?

In today’s decision CAAF holds that a CCA does have the authority to reconsider en banc a prior en banc decision, however it finds that three of the AFCCA judges who participated in the reconsideration were disqualified from doing so.

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

This week at CAAF: CAAF has completed its oral argument calendar for the term. Details about this term’s cases are available on our 2015 Term of Court page.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on August 22, 2016.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on August 18, 2016.

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

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

In a published order in H.V. v. Commander Kitchen, Military Judge, and Randolph, Real Party in Interest, __ M.J. __, Misc. Docket No. 001-16 (C.G. Ct. Crim. App. Jul. 8, 2016) (link to order), a three-judge panel of the Coast Guard Court of Criminal Appeals holds that Mil. R. Evid. 513 (the psychotherapist-patient privilege) extends “to the psychotherapist’s conclusions (diagnoses) and resulting treatments.” Order at 3.

The privilege states that:

A patient has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made between the patient and a psychotherapist or an assistant to the psychotherapist, in a case arising under the Uniform Code of Military Justice, if such communication was made for the purpose of facilitating diagnosis or treatment of the patient’s mental or emotional condition.

Mil. R. Evid. 513(a).

H.V. is a member of the Coast Guard and an alleged victim in a court-martial. The defense moved to compel production of her mental health records. Considering the motion the military judge, Commander Kitchen, determined that Mil. R. Evid. 513 does not apply to “the disclosure of dates on which a patient was treated, the identity of the provider, the diagnostic code, or the therapies used,” and accordingly ordered production of H.V.’s mental health records:

limited to ONLY those portions indicating a psychiatric diagnosis (as this phrase is used in the DSM-5), the date of such diagnosis, any medications prescribed, the duration prescribed medications were to be taken, type of therapies used, and the resolution of the diagnosed psychiatric condition, if applicable.

Order at 2 (quoting military judge’s ruling). H.V., however, does not want even these records disclosed, and so she sought a writ of mandamus under Article 6b from the CCA to compel the military judge to apply the privilege to these records.

In what I believe is a case of first impression, the panel of the Coast Guard CCA splits 2-1 to grant the writ and expand the privilege, with Chief Judge McClelland writing for the majority and Judge Bruce dissenting.

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In a published decision in United States v. Latour, __ M.J. __, No. 201600114 (N.M. Ct. Crim. App, Jul 12, 2016) (link to slip op.), a three-judge panel of the NMCCA rejects a Government appeal under Article 62 of a military judge’s ruling that excluded the accused’s admissions for lack of corroboration.

Confessions, and the corroboration rule (Mil. R. Evid. 304(c)), were our #10 Military Justice Story of 2015, and the corroboration rule was changed (significantly relaxed) in this year’s amendments to the Manual for Courts-Martial. However, Latour involves the old rule because the accused was arraigned before the change.

The accused is charged with four specification of sexual assault. Two of those specification allege that he penetrated the alleged victim’s vulva with his penis and with his finger, both while she was incapable of consenting due to impairment by a drug, intoxicant, or other similar substance.

The admissions requiring corroboration are the accused’s statement to the Naval Criminal Investigative Service in which he admitted to the penetrations but asserted that they were consensual, and the accused’s text message to the alleged victim that, “[w]e made whoopy lol.” Slip op. at 2-3 (marks in original).

However, “no witness, including [the alleged victim], testified to observations, physical sensations, or injuries that corroborated sexual activity. Investigators found no physical evidence of sexual activity, whether DNA or a condom wrapper.” Slip op. at 13. Accordingly, the military judge prohibited the prosecution from introducing the admissions, leading to the appeal.

In affirming the military judge’s ruling, the CCA rejects three arguments advanced by the Government.

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Note: Later today I will be part of the a free webinar on the Bergdahl case presented by the Young Lawyers Division of the American Bar Association. You can register here

The Army’s prosecution of Sergeant Robert Bowdrie (“Bowe”) Bergdahl (CAAFlog news page) for desertion with the intent to shirk important service and avoid hazardous duty in violation of Article 85(a)(2), and misbehavior before the enemy in violation of Article 99, was our #8 Military Justice Story of 2015.

As the case progresses many wonder why Bergdahl faces prosecution after nearly five years of brutal captivity in the hands of insurgents. The facts of his capture are relatively undisputed – in a moment of severe naivete (or narcissism) he walked away from his combat outpost and into the Afghan wilderness – and the subsequent half-decade of maltreatment he suffered is undoubtedly a harsh price to pay for his terrible decision. Yet Bergdahl faces a general court-martial and the possibility of confinement for life without the possibility of parole. Why, one wonders, would the Army subject him to such a court-martial?

It’s because the Army has no choice.

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In the Air Force case of United States v. LaBella, 75 M.J. 52 (C.A.A.F. Dec. 11, 2015) (CAAFlog case page), a unanimous CAAF held that the Air Force Court of Criminal Appeals lacked jurisdiction to grant the appellant’s petition for reconsideration that was filed after the time for filing a petition for review by CAAF had expired.

The petition for reconsideration was filed after the appellant’s detailed Air Force appellate defense counsel failed to seek CAAF review before expiration of the 60-day deadline, and also failed to seek reconsideration from the CCA within the 30 day time period for seeking reconsideration (which would have reset the 60 day clock to petition CAAF). Instead, after a change in counsel, an out-of-time petition for reconsideration was submitted to the AFCCA in December 2014. The CCA allowed the petition but affirmed its prior decision that affirmed the findings and sentence. The appellant then petitioned CAAF, leading to the court’s December decision finding that the CCA did not have jurisdiction to allow the petition.

After CAAF’s decision, the appellant petitioned the AFCCA for a writ of error coram nobis asserting that his appellate counsel provided ineffective assistance of counsel by failing to timely petition CAAF. In an order issued last week and available here, the AFCCA denied the petition:

As Petitioner’s alleged deficient performance was the failure of counsel to file a timely appeal to the CAAF, to demonstrate prejudice, Petitioner must be able to demonstrate a reasonable probability that our superior court would have provided relief if the petition was submitted within the statutory window. For the reasons set forth in our prior opinion, we remain unpersuaded that Appellant is entitled to relief. See Labella, ACM 37679 (rem); see also United States v. Piolunek, 74 M.J. 107 (C.A.A.F. 2015) (affirming a general verdict of possessing and receipting child pornography when only 19 of the 22 images admitted by the government as evidence as to this offense constituted child pornography).

Petitioner, in his writ to this court, has not identified, and we have not found, any additional basis for relief as to the issues that he desired our superior court consider on further appeal.

Slip op. at 5. A footnote adds:

In so concluding, however, we understand that Petitioner may now appeal this writ to the United States Court of Appeals for the Armed Forces (CAAF). Compare Denedo, 556 U.S. 904, 915 (2009) (“Because the [service court] had jurisdiction over respondent’s petition for coram nobis, the CAAF had jurisdiction to entertain respondent’s appeal from the [service court]’s judgment.”) with Rittenhouse v. United States, 69 M.J. 174 (C.A.A.F. 2010) (declining a writ of error coram nobis submitted directly to the CAAF).

The deadline to file such an appeal is 20 days from the date of service of the CCA’s decision on the writ petition. C.A.A.F. R. 19(e) (2016).

Readers may recall that the last military case decided by the Supreme Court – United States v. Denedo, 556 U.S. 904 (2009) – ended when Denedo’s counsel missed this same 20-day deadline to file a writ-appeal (discussed here).

Update: The opinion in Tevelein II now appears on the CGCCA’s website as a published decision.

Two weeks ago, in United States v. Tevelein, CGCMS 24465, No. 002-69-13 (C.G. Ct. Crim. App. Jun. 29, 2016) (en banc op. on recon.) (Tevelein II) (link to slip op.) (mirror link), the Coast Guard CCA granted a Government request for reconsideration and reversed the original decision in the case that was issued by a three-judge panel of the court way back in 2013. See United States v. Tevelein, CGCMS 24465, No. 002-69-13 (C.G. Ct. Crim. App. Sep. 6, 2013) (Tevelein I) (link to slip op.) (mirror link). The unpublished opinion on reconsideration also reverses a 2013 published decision of the court regarding the language required to properly charge a violation of Article 134 for conduct not enumerated as an offense in the Manual for Courts-Martial (a novel specification). See United States v. Hughey, 72 M.J. 809 (C.G. Ct. Crim. App. 2013) (discussed here).

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Significant military justice event this week: The Young Lawyers Division of the American Bar Association will host a free webinar on the Bergdahl case on Wednesday, July 13, 2016, from 1:00 p.m. to 2:00 p.m. (eastern time). Register here.

This week at SCOTUS: The Solicitor General received an additional extension of time to respond to the cert. petition in Akbar. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking two cases:

This week at CAAF: CAAF has completed its oral argument calendar for the term. Details about this term’s cases are available on our 2015 Term of Court page.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Tuesday, July 12, 2016, at 2 p.m.:

United States v. Bonilla, No. 20131084

I. Whether the military judge erred by allowing a damaging hearsay statement into evidence after he already ruled the specific statement inadmissible.
II. Whether the military judge abused his discretion in prohibiting the defense from completing their closing argument.

Note: This argument was rescheduled from June 14.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on August 18, 2016.

This week at the CGCCA: The Coast Guard CCA will hear oral argument in one case this week, on Tuesday, July 12, 2016, at 10 a.m.:

United States v. Riesbeck

Issue: Whether the panel of members was properly selected.

Note: Our prior discussion of this case is available here and here.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

In a published decision in United State v. Vidal, __ M.J. __, No. 20130892 (A. Ct. Crim. App. Jun. 21, 2016) (link to slip op.), a three-judge panel of the Army CCA orders a DuBay hearing to determine whether the appellant’s civilian appellate defense counsel has a conflict of interest.

A general court-martial composed of members with enlisted representation convicted Staff Sergeant Vidal, contrary to his pleas of not guilty, of numerous offenses in connection with a single sexual encounter in Afghanistan involving two junior soldiers, one male (SPC JA) and the other female (SPC JO). Vidal was sentenced to confinement for 15 years, reduction to E-1, total forfeitures, and a dishonorable discharge. The other male soldier, SPC JA, was a co-accused (both were accused of sexually assaulting SPC JO), and was administratively discharged in lieu of trial by court-martial after Vidal’s trial concluded.

The civilian counsel representing Vidal on appeal did not represent him at trial, but did represent SPC JA and successfully obtained the administrative discharge for SPC JA. The civilian then undertook representation of Vidal for post-trial matters and for appeal, first seeking a post-trial administrative discharge for Vidal and then arguing on appeal that Vidal received ineffective assistance of counsel at trial. The ineffective assistance claim was based upon the failure of Vidal’s trial defense counsel to seek SPC JO’s (the alleged victim’s) mental health records that were – the appeal asserts – completely exculpatory and instrumental in obtaining the administrative discharge. However, the civilian attorney had knowledge of the contents of the records (from his representation of the co-accused) but seemingly did not make full use of that knowledge during his post-trial representation of Vidal.

Accordingly, the CCA finds that:

[B]y arguing that the trial defense counsel was ineffective and lost appellant’s chance at an administrative discharge, it appeared he was also arguing his own ineffectiveness during post-trial representation of appellant. This presented us with what appeared to be a conflict of interest.

Slip op. at 5.

Significantly, the opinion “only attempts to identify potential conflicts of interest,” and the CCA observes that “nothing in this opinion should be construed as a finding of misconduct.” Slip op. at 11 n.7 (emphasis in original).

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