CAAF decided the Marine Corps case of United States v. Chikaka, __ M.J. __, No. 16-0586/MC (CAAFlog case page) (link to slip op.), on Tuesday, June 20, 2017. A short opinion finds that the sentencing-phase testimony of the appellant’s commanding officer, that opined in favor of a harsher sentence, constitutes some evidence of unlawful command influence (UCI) sufficient to require further review by the Navy-Marine Corps Court of Criminal Appeals. CAAF reverses the CCA’s decision that found no merit in the assertion of UCI and remands for further consideration.

Judge Ohlson writes for a unanimous court.

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In this post I noted a May 12, 2017, news report about the case of Senior Chief Barry, U.S. Navy, who was convicted of one specification of sexual assault in violation of Article 120, and sentenced to confinement for three years and a dishonorable discharge. Mike posted a follow-up here.

The convening authority – Rear Admiral Patrick J. Lorge (now retired) – approved the findings and sentence, and the NMCCA affirmed in an opinion available here. CAAF summarily affirmed on April 27, 2017.

After CAAF acted, the Admiral signed an affidavit alleging that he wanted to disapprove the finding of guilty but the then-Judge Advocate General of the Navy and her deputy (the current JAG) persuaded him not to exonerate the sailor because it would be bad public relations for the Navy and hurt Lorge’s career.

Yesterday – in an order available here – CAAF vacated its decision and ordered a factfinding hearing:

That the petition for reconsideration is granted; this Court’s order of April 27, 2017, is vacated; and the petition for grant of review is granted on the following issue:

WHETHER SENIOR CIVILIAN AND MILITARY LEADERS EXERTED UNLAWFUL COMMAND INFLUENCE ON THE CONVENING AUTHORITY.

In addition, the motion to appoint a special master is denied; the motions to supplement the record are granted; the motion for oral argument is denied; and the motion to remand for new post-trial processing is denied.

The record of trial is returned to the Judge Advocate General of the Navy for remand to a convening authority other than the one who convened the court-martial concerned and one who is at a higher echelon of command. This convening authority shall order a factfinding hearing pursuant to DuBay. The presiding officer at this hearing shall be a military judge from an armed force other than the United States Navy or United States Marine Corps. See Rule for Court-Martial 503(b)(3). This military judge shall inquire fully and make findings of fact and conclusions of law related to the alleged unlawful command influence matter underlying the granted issue. At the conclusion of the DuBay hearing, the military judge will return the record directly to this Court for further review of the granted issue under Article 67, Uniform Code of Military Justice, 10 U.S.C. § 867 (2012).

One noteworthy part of CAAF’s order is that it does not permit disapproval of the conviction now if the DuBay were deemed impracticable. Absent such authorization, the conviction will stand unless CAAF finds a reason to reverse it. And the Admiral will testify if called (or face potentially-severe consequences), as he is still subject to the UCMJ.

CAAF decided the Army case of United States v. Herrmann, __ M.J. __, No. 16-0599/AR (CAAFlog case page) (link to slip op.) on Monday, June 19, 2017. Defining the term likely in the element of conduct likely to produce death or grievous bodily harm, CAAF affirms a conviction of reckless endangerment in violation of Article 134 for the pencil packing of reserve parachutes.

Judge Ohlson writes for a unanimous court.

Sergeant (E-5) Herrmann was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of willful dereliction in the performance of his duties in violation of Article 92, and of reckless endangerment in violation of Article 134. Herrmann was sentenced to confinement for 10 months, reduction to E-1, total forfeitures, and a bad conduct discharge. The Army CCA affirmed the findings and sentence in a published opinion. 75 M.J. 672.

CAAF then granted review of a single issue:

Whether the evidence is legally sufficient to find appellant committed reckless endangerment, which requires proof the conduct was likely to produce death or grievous bodily harm.

The convictions were based on the pencil packing of reserve parachutes, Judge Ohlson defines pencil packing as:

illicit conduct where a soldier responsible for packing or inspecting a parachute fails to do so, but then falsely indicates in writing that the proper packing and inspecting procedures were followed.

Slip op. at 2-3 n.2. The prosecution introduced testimony by Herrmann’s subordinates admitting to the pencil packing, and also presented evidence of various ways the parachutes could have failed. A conviction of reckless endangerment, however, requires “conduct . . . likely to produce death or grievous bodily harm to another person.” ¶ 100a, Part IV, Manual for Courts-Martial (2016). Herrmann’s defense was that any possibility of such harm was less than likely, primarily because the parachutes were merely reserves.

But CAAF is unconvinced and affirms the conviction.

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Did you listen to the oral argument in United States v. Hukill, 76 M.J. 219 (C.A.A.F. May 2, 2017) (CAAFlog case page)?

Hukill was a trailer to Hills (CAAFlog case page) for judge-alone cases. But rather than focus on the difference between a panel and a military judge, the Army Appellate Government Division used the case as a vehicle to re-litigate the underlying holding of Hills.

It lost. Bigly.

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This week at SCOTUS: A cert. petition was filed in Alexander v. United States, No. 16-9536, on May 3, 2017, but not docketed until last week. Counsel of record is a civilian from Tennessee. The case is from the Army and was summarily affirmed by CAAF on May 3, 2017, with an order that stated:

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 issue raised by Appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and the decision of the United States Army Court of Criminal Appeals is affirmed.

No opinion is available on the Army CCA’s website (suggesting that the CCA summarily affirmed).

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

This week at CAAF: CAAF has completed its oral argument calendar for the term. A detailed list of this term’s cases is available on our October 2016 Term Page.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Thursday, June 22, 2017, at 10 a.m.:

United States v. Bunch, No. 20160197

Issues:
[I.] Whether appellant’s six-year old stepdaughter had a reasonable expectation of privacy under Article 120c, UCMJ?

[II.] Whether the military judge abused his discretion by accepting appellant’s plea of guilty to indecent visual recording under Article 120c, UCMJ?

[III.] Whether Article 120c, UCMJ, is unconstitutionally overbroad or vague?

This week at the AFCCA: The Air Force CCA will hear oral argument in United States v. Leonhardt on June 20, 2017, at 1 p.m. According to the CCA’s docket, the argument will be a closed hearing.

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

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on July 20, 2017.

In March of this year, in Pena-Rodriguez v. Colorado (SCOTUSblog case page), the Supreme Court invoked the “imperative to purge racial prejudice from the administration of justice” and used that command to pierce the rule protecting the secrecy of juror deliberations.  Slip. op. at 13. The Court found that Colorado Rule of Evidence 606 (equivalent to M.R.E. 606) could not stand in the way of an accused’s right to probe the verdict for evidence of racial bias:

[T]he Constitution requires an exception to the no-impeachment rule when a juror’s statements indicate that racial animus was a significant motivating factor in his or her finding of guilt.

Slip. op. at 2. The Court explained:

It must become the heritage of our Nation to rise above racial classifications that are so inconsistent with our commitment to the equal dignity of all persons.

Slip. op. at 13. It is against that backdrop that questions regarding whether the military justice system is racially biased has joined the already feverish discussion regarding the system’s handling of sexual assault.

Ten days ago, Newsweek asked “Is the Military Racist?” A headline in USA Today added: “Black troops as much as twice as likely to be punished by commanders, courts.” NBC reported: “Black Troops More Likely to Face Military Punishment than Whites.” And McClatchy newspapers noted: “Black troops far more likely to face military punishment in every service branch.”

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This story in The Hill alerted me to the “Protecting the Rights of IndiViduals Against Technological Exploitation Act” (PRIVATE Act), H.R.2052, which passed the House with no nay votes on May 24, 2017, and has been referred to the Senate Armed Services Committee. A separate (but identical) bill was also introduced in the Senate (S.1296).

The bill proposes a new Article 117a of the UCMJ to prohibit the “wrongful broadcast or distribution of intimate visual images.” The text of the proposed article – which seems to avoid the problems I identified in the new Article 1168, U.S. Navy Regulations – is after the jump.

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Last year, before CAAF’s blockbuster decision in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page) (our #3 Military Justice Story of 2016), the Army CCA decided United States v. Williams, 75 M.J. 621 (A. Ct. Crim. App. Feb. 29, 2016) (discussed here).

In Williams the CCA overruled its own 2006 published decision that required certain instructions when propensity evidence was admitted under Mil. R. Evid. 413/414. Those mandatory instructions were problematic in cases where charged offenses were used for propensity purposes (the practice CAAF later prohibited in Hills). The CCA abandoned the instructions in Williams, but did not mandate any particular replacement.

CAAF then granted review in Williams (discussed here) and summarily reversed (discussed here) in light of Hills.

The CCA affirmed the case again, and now it’s headed back to CAAF.

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CAAF decided the Coast Guard case of United States v. Reese, __ M.J. __, No. 17-0028/CG (CAAFlog case page) (link to slip op.), on Wednesday, June 14, 2017. The court dismisses two charges after concluding that the conviction on the first (alleging sexual abuse of a child) was the product of an improper major change during the trial, and that the second charge failed to state an offense. The decision of the Coast Guard CCA is reversed and the case is remanded for reassessment of the sentence or a sentence rehearing.

Chief Judge Erdmann writes for a unanimous court.

CAAF granted review of two issues:

I. Whether the military judge erred in allowing the government to make a major change to a specification after the complaining witness’s testimony did not support the offense as originally charged.

II. Whether the specification of the additional charge fails to state an offense where the terminal element failed to allege words of criminality and where the alleged conduct fell within a listed offense of Article 134, UCMJ.

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This week at SCOTUS: The cert. petition in Sterling was denied on June 5, 2017 (noted here). I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking four cases:

This week at CAAF: CAAF has completed its oral argument calendar for the term. A detailed list of this term’s cases is available on our October 2016 Term Page.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Thursday, June 15, 2017:

United States v. Schelmetty, No. 20150488

Issues:
[I]. Whether the military judge’s military rule of evidence 412 ruling was error that prevented appellant from presenting evidence of consent and constitutionally required evidence.

[II]. Whether the military judge erred by preventing the defense from introducing the remaining portions of appellant’s statements.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on June 20, 2017. According to the CCA’s docket, the argument will be a closed hearing.

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 will hear oral argument in United States v. Hutchins,  No. 200800393, on Wednesday, June 14, 2017, at 10 a.m.

In United States v. Hutchins, 72 M.J. 294 (C.A.A.F. Jun. 26, 2013) (CAAFlog case page), CAAF found that the Naval Criminal Investigative Service (NCIS) unlawfully re-initiated communications with Hutchins after he requested an attorney, leading to a confession that was erroneously admitted at trial, and the court reversed convictions for a false official statement, unpremeditated murder, and larceny, in connection with a 2006 kidnap-murder conspiracy in Iraq that is colloquially known as the Hamdania incident. The Government was denied reconsideration by CAAF and ultimately did not seek certiorari.

Hutchins was retried and was convicted again (CAAFlog news page). That court-martial is now pending appellate review:

Case Summary:
A panel of officer and enlisted members sitting as a general court-martial convicted the appellant, contrary to his pleas, of one specification of conspiracy, one specification of false official statement, one specification of unpremeditated murder, and one specification of larceny in violation of Articles 81, 107, 118, and 121, UCMJ, 10 U.S.C. §§ 881, 907, 918, 921 (2006). The members sentenced the appellant to confinement for fifteen years, reduction to pay grade E-1, a reprimand, and a dishonorable discharge. The convening authority approved the findings and sentence as adjudged and, with the exception of the reprimand and all confinement in excess of 11 years, ordered the sentence executed.

Issues:
I. Whether the military judge erred when he denied the defense motion to suppress evidence of conduct for which appellant had been acquitted at his first trial.

II. Whether the military judge erred when he admitted former testimony where the declarants were not unavailable and there was no similar motive for cross examination.

III. Whether the findings and sentence must be set aside and dismissed with prejudice due to unlawful command influence from the Secretary of the Navy

In a lengthy opinion in United States v. Hale, __ M.J. __, No. 201600015 (N.M. Ct. Crim. App. May 31, 2017) (link to slip op.), a three-judge panel of the Navy-Marine Corps CCA reverses convictions of rape, violating a general order, adultery, indecent language, wrongful use of steroids, assault with a dangerous weapon, and kidnapping, and the sentence that included confinement for 26 years.

The reversal is because of a conflict of interest between the lead military defense counsel (a Marine captain, identified as Capt KC), her husband (another Marine captain, who was assigned as a trial counsel but not otherwise involved in the case, identified as Capt CC), and the prosecutor (a Marine lieutenant colonel, who was the regional trial counsel and supervised the husband, identified as LtCol CT). The defense team included a second Marine captain (identified as Capt JS) who “the appellant requested . . . as individual military counsel.” Slip op. at 3.

Judge Fulton writes for the panel (which includes Chief Judge Glaser-Allen), concluding:

The record convinces us that Capt KC’s representation was adversely affected by the conflict of interest. The conflicts presented in this case were obviously significant and upsetting to Capt KC. After Capt KC moved to dismiss the charges involving SK because of the GHQE’s text messages, LtCol CT—her prospective RO and her husband’s current RO—accused the defense of unethical conduct. LtCol CT called the possibility that defense counsel might be asking potential witnesses about evidence governed by MIL. R. EVID. 412 and 513 “gross and cruel.” All this caused Capt KC to audibly sob at counsel table, and she was unable to continue.

Slip op. at 22 (ellipses in original) (emphasis added). As a result:

The sepsis of undisclosed conflict in this case infects much of the record. Even the post-trial Article 39(a) session did not convincingly diagnose the full extent of the conflict or its prejudice. A member of the public fully informed of the facts of this appellant’s representation would not have faith in the process that led to these convictions. It is our judgment, based on the entire record, that the findings and the sentence in this court-martial should not be approved.

Slip op. at 28.

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CAAF decided the certified Air Force case of United States v. Carter, __ M.J. __, Nos. 17-0079/AF & 17-0086/AF (CAAFlog case page) (link to slip op.), on Monday, June 5, 2017. In a short opinion issued less than a month after oral argument, CAAF agrees with the Air Force CCA’s “interpretation of its own holding . . . the AFCCA did not authorize a rehearing.” Slip op. at 4. The CCA’s decision dismissing the charges with prejudice is affirmed.

Judge Ryan writes for a unanimous court.

Back in 2010, Master Sergeant (E-7) Carter was convicted of indecent liberties with a child in violation of Article 120(j) (2016), and of child endangerment and indecent acts with a child, both in violation of Article 134, and sentenced to confinement for 4 years, reduction to E-1, total forfeitures, and a dishonorable discharge. The convening authority disapproved the conviction of violation of Article 120(j) and reduced the sentence to confinement to three years, but approved the remainder of the findings and sentence.

The Article 134 specifications, however, failed to allege a terminal element and so therefore failed to state offenses. See United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011) (discussed here). The CCA reversed the findings in 2013, the JAG certified, and CAAF summarily affirmed. The case was remanded and two specifications under a new charge were preferred and referred to a new general court-martial. Carter made numerous objections (including objecting based on the statute of limitations), but the trial proceeded and Carter was again convicted. The second sentence included confinement for 40 months, total forfeitures, and reduction to E-1 (but not a punitive discharge).

The Air Force court, however, reversed again. In a 2016 decision discussed here, a three-judge panel of the Air Force CCA split 2-1 to conclude that the court’s 2013 decision did not authorize further proceedings and that the charge should be dismissed with prejudice. The dissenting judge found that the second trial was an independent proceeding based on a totally new charge. The Judge Advocate General of the Air Force then certified the case to CAAF challenging the CCA’s dismissal, and CAAF granted review of five additional issues.

Judge Ryan’s opinion, however, only discusses the certified issue, because CAAF finds that “under these circumstances, the convening authority was not authorized to order any further proceedings.” Slip op. at 2.

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CAAF is considering the impact of questioning of a military suspect, after he invoked his right to remain silent and requested an attorney, in order to give investigators access to the suspect’s cell phone for a search, in the certified Army case of United States v. Mitchell, No. 17-0153/AR (CAAFlog case page). The case was argued at the Notre Dame Law School on Tuesday, April 4, 2017.

While we await CAAF’s decision, the Air Force CCA decided a closely-analogous issue in two cases, one post-conviction and the other an interlocutory prosecution appeal under Article 62.

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Today’s SCOTUS order list includes the following:

CERTIORARI DENIED

16-814 STERLING, MONIFA J. V. UNITED STATES

In United States v. Sterling, 75 M.J. 407 (C.A.A.F. Aug. 10, 2016) (CAAFlog case page), part of our #8 Military Justice Story of 2016, CAAF found that disobedience of an order could qualify for protection under the Religious Freedom Restoration Act (RFRA), however the majority concluded that the appellant (who represented herself at trial) failed to establish that the order she violated substantially burdened her exercise of religion.

Thanks to reader John Marshall for the heads up.

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

This week at CAAF: CAAF has completed its oral argument calendar for the term. A detailed list of this term’s cases is available on our October 2016 Term Page.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Monday, June 5, 2017:

United States v. Lazcano, No. 20150354

Issue: Whether appellant was denied his right to a fair and impartial panel in a sexual assault case where the panel president failed to disclose his recent allegation against a material defense witness regarding inappropriate conduct with a junior enlisted soldier.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on June 20, 2017.

This week at the CGCCA: I’m unable to access the Coast Guard CCA’s oral argument schedule.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on June 14, 2017.