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

This week at CAAF: The first oral argument date for CAAF’s September 2015 Term is October 6, 2015.

This week at the ACCA: The Army CCA’s website shows no scheduled oral arguments.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on September 29, 2015.

This week at the CGCCA: The next scheduled oral argument at the Coast Guard CCA is on September 21, 2015.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA’s is on October 15, 2015.

CAAF denied SGT Bergdahl’s second writ-appeal on Friday, with the following order:

No. 15-0710/AR. Robert B. Bergdahl, Appellant v. Peter Q. Burke, Lieutenant Colonel, AG, U.S. Army, in his official capacity as Commander, Special Troops Battalion, U.S. Army Forces Command, Fort Bragg, NC, and Special Court-Martial Convening Authority and United States, Appellees. CCA 20150463.  On consideration of the writ-appeal petition, it is ordered that said writ-appeal petition is hereby denied without prejudice to Appellant’s right to raise the issue asserted during the course of normal appellate review.

I discussed this filing here. All of our Bergdahl coverage is available here.

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

This week at CAAF: The first oral argument date for CAAF’s September 2015 Term is October 6, 2015.

This week at the ACCA: The Army CCA’s website shows no scheduled oral arguments.

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 oral argument schedule shows no scheduled oral arguments.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA’s is on October 15, 2015.

CAAF decided the interlocutory Army case of United States v. Stellato, __ M.J. __, No. 15-0315/AR (CAAFlog case page) (link to slip op.), on Thursday, August 20, 2015. Finding significant flaws in the way the trial counsel (military prosecutor) handled his discovery obligations, CAAF affirms the pretrial ruling that dismissed with prejudice charges involving alleged sexual assault of a child, concluding that the military judge did not abuse his discretion in finding discovery violations and finding no lesser remedy adequate. CAAF reverses the decision of the Army CCA and reinstates the military judge’s ruling dismissing the case.

Judge Ohlson writes for the court. Judge Stucky writes separately, concurring in the result but disagreeing with the majority’s conclusion regarding one of the numerous discovery issues.

The accused, a mobilized reservist, was charged with various acts of alleged sexual molestation of his biological daughter, Miss. MS, from 2007 through 2009, when the child was between the ages of two and five years old. The asserted discovery violations in the case involve various items, but chief among them is a collection of materials (some of them highly exculpatory) assembled and held by the alleged victim’s mother and referred to as a “box” of evidence. Another item is a plastic banana allegedly used to assault the girl and subsequently held by civilian authorities. Other concerns involve a witness that the Defense sought to interview, and an expert whose testimony would have been favorable to the Defense but who suddenly died during delays incurred by litigation of the discovery issues.

The Defense sought multiple continuances of the trial, asserting outstanding discovery issues. The military judge granted numerous continuances, once “warn[ing] the Government that its decision to ‘take a hard stand on discovery
. . . invited disaster at trial.’ (Ellipsis in original.).” Slip op. at 10 (marks omitted). That disaster eventually arrived for the Government when the Defense moved to dismiss the charges due to prosecutorial misconduct and the military judge found “‘continual and egregious discovery’ violations by CPT Jones,” the trial counsel. Slip op. at 14. Then, “after considering ‘all possible remedies in this case’ and the requirement ‘to craft the least drastic sanction,’ the military judge dismissed the case with prejudice based on ‘the nature, magnitude, and consistency of the discovery violations’ in the case.” Slip op. at 14.

The Government appealed and in a published decision issued last November (discussed here) a three-judge panel of the Army CCA reversed the military judge, finding that the military judge “clearly misjudged the scope and magnitute of the discovery issues in this case.” 74 M.J. 501, 515 (A. Ct. Crim. App. Nov. 17, 2014). CAAF then granted review of two issues:

I. Whether the Army Court of Criminal Appeals erred as a matter of law in concluding there was no discovery violation and reversing the military judge’s remedy of dismissal.

II. Whether the Army Court of Criminal Appeals applied an erroneous view of the law in requiring the military judge to find “willful ignorance, willful suppression, or other misconduct” as a condition precedent for dismissal with prejudice for discovery violations.

Yesterday’s decision reverses the CCA but does so by piercing through the CCA’s decision and “review[ing] the military judge’s rulings directly,” with  CAAF concluding that “the military judge did not abuse his discretion in finding discovery violations and in dismissing this case with prejudice.” Slip op. at 15.

It is, at first glance, the most significant prosecutorial misconduct case decided by CAAF since United States v. Fletcher, 62 M.J. 175 (C.A.A.F. 2005) (finding prejudicial misconduct in the trial counsel’s findings argument). Where Fletcher defined the contours of Government argument, Stellato defines the contours of Government discovery.

Read more »

CAAF decided the Coast Guard case of United States v. Sullivan, __ M.J. __, No. 15-0186/CG (CAAFlog case page) (link to slip op.), on Wednesday, August 19, 2015. The court finds that it was harmless error for the convening authority to categorically exclude flag officer from the pool of potential members, and that the military judge’s extensive personal and professional relationships with the court-martial participants does not raise an appearance of bias, affirming the decision of the Coast Guard CCA and the appellant’s convictions and sentence.

Judge Ohlson writes for the court, joined by all but Chief Judge Erdmann who dissents from the majority’s conclusion about an appearance of bias in the military judge.

The appellant is a senior Coast Guard Captain (O-6), with 27 years of service at the time of trial, who was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of a single specification of wrongful use of cocaine in violation of Article 112a. He was sentenced to pay a $5,000 fine and to be reprimanded. That sentence did not trigger automatic review by the CCA, but the Judge Advocate General of the Coast Guard referred the case to the CCA court under Article 69(d). The CCA issued an unpublished opinion last September (discussed here) affirming the findings and sentence, and then CAAF granted review of two issues:

I. Whether the Government carried its burden of proving that the convening authority’s categorical exclusion of all flag officers was harmless.

II. Whether the military judge abused his discretion in denying challenges from both parties to his impartiality based on prior personal relationships with individual military counsel, the accused, trial counsel, several members, several witnesses, and the staff judge advocate.

In Wednesday’s opinion CAAF unanimously finds that the Government has met its burden to prove that the exclusion of flag officers was harmless, and it splits 4-1 to find that a reasonable person familiar with all the circumstances of the case would not conclude that the military judge’s impartiality might reasonably be questioned.

Read more »

Today CAAF issued the final decision of the term, reversing the Army CCA and reinstating the military judge’s order that dismissed a child sexual assault case with prejudice as a remedy for Government discovery violations, in United States v. Stellato, No. 15-0315/AR (CAAFlog case page) (link to slip op.).

In addition to CAAF’s decision in Arness (CAAFlog case page) (analyzed here), and its decision affirming the death sentence in Akbar (CAAFlog case page) (decision mentioned here), the court yesterday also decided United States v. Sullivan, No. 15-0186/CG (CAAFlog case page), rejecting the appellant’s assignments of error.

All of the term’s opinions (with brief summaries) are listed on our September 2014 Term of Court page. However, I have not yet updated the page to reflect the decisions in Akbar, Sullivan, and Stellato (I will do that after I complete the opinion analysis for each case).

Annual End o’ Term stats to follow.

CAAF decided the Air Force case of United States v. Arness, __ M.J. __, No. 14-8014/AF (CAAFlog case page) (link to slip op.), on Wednesday, August 19, 2015. Holding that the Air Force CCA did not have jurisdiction to consider the appellant’s case under Article 69, CAAF dismisses the writ-appeal of the CCA’s denial of the appellant’s petition for extraordinary relief.

Just Stucky writes for the court, joined by all but Judge Baker who writes separately but concurs in the result.

The appellant is an Air Force Lieutenant Colonel who was convicted of various offenses at a general court-martial and sentenced to confinement for 11 months and a reprimand. That sentence is below the jurisdictional threshold for automatic review by the Air Force CCA under Article 66(b), and so instead the court-martial was reviewed by the Judge Advocate General (JAG) of the Air Force pursuant to Article 69. Under that provision, the JAG reviews any general court-martial that does not trigger Article 66 jurisdiction, and the JAG can take corrective action or send the case to the CCA for further review.

In Arness the JAG found no error and affirmed the findings and sentence, and then the JAG denied the appellant’s request for reconsideration. The then appellant filed a writ petition with the AFCCA, asserting 13 errors and seeking extraordinary relief. The CCA found that it had jurisdiction to consider the petition, but denied relief. The appellant (appearing pro se) then sought CAAF review of the CCA’s denial of relief, but CAAF specified a different issue for its consideration:

Whether the United States Air Force Court of Criminal Appeals had jurisdiction to entertain a writ of error coram nobis where there was no statutory jurisdiction under Article 66(b)(1), UCMJ, on the underlying conviction and the case was not referred to the Court of Criminal Appeals by the Judge Advocate General under Article 69(d)(1), UCMJ, and where the Court of Criminal Appeals relied on potential jurisdiction under Article 69(d), UCMJ, as its basis for entertaining the writ (citing Dew v. United States, 48 M.J. 639 (Army Ct. Crim. App. 1998)).

In yesterday’s decision CAAF answers this question with a resounding no. “As the Judge Advocate General did not refer Appellant’s case to the CCA — a statutory prerequisite for its review — the CCA was without jurisdiction to review it.” Slip op. at 7.

Read more »

Opinion here. Judge Olson writes for a three judge majority. Judge Baker dissents, joined by Chief Judge Erdmann.

Prior coverage at the CAAFlog case page.

More to follow.

Two years ago, in United States v. Solomon, 72 M.J. 176 (C.A.A.F. 2013) (CAAFlog case page), CAAF held that a military judge erred in admitting prior allegations of sexual misconduct by an accused (as propensity evidence under Military Rule of Evidence 413) when the accused was acquitted of the prior allegations in a prior court-martial, because the judge “failed to mention or reconcile Appellant’s important alibi evidence [involving the prior allegations] and gave little or no weight to the fact of the prior acquittal.” 72 M.J. at 180.

Last month, in a published opinion in United States v. Bridges, __ M.J. __, No. 20120714 (A. Ct. Crim. App. Jul. 27, 2015) (link to slip op.), a three-judge panel of the Army CCA grapples with similar circumstances in that:

the United States relied in merits and sentencing, in part, upon a fifteen year old allegation of rape against appellant that had been subject to trial and resulted in acquittal.

Slip op. at 2.

The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of wrongful sexual contact, forcible sodomy, and assault consummated by a battery in violation of Articles 120, 125, and 128. He was sentenced to confinement for 6 years, total forfeitures, reduction to E-1, and a dishonorable discharge.

Read more »

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

This week at CAAF: The first oral argument date for CAAF’s September 2015 Term is October 6, 2015.

This week at the ACCA: The Army CCA’s website shows no scheduled oral arguments.

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 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.

The history of jury trials is rich with individual examples of nullification, a practice meant to bring about a just result or signal a change in the community conscience. Over time, the practice has become disfavored; civilian and military judges have prohibited nullification tactics in voir dire, 10 arguments, and instructions. Yet present panel guidance tells members to decide cases through consideration of the law, the evidence, and each members own conscience. And consequently, despite the military’s emphasis on strict obedience to the law, discretion exists within its justice system to allow members to hear arguments on the merits of both the facts and laws charged. Military judges should use this discretion and allow nullification in appropriate cases.

Major Michael E. Korte, He Did It, but So What? Why Permitting Nullification at Court-Martial Rightfully Allows Members to Use Their Consciences in Deliberations, 223 Mil. L. Rev. 200, 103-104 (Spring 2015) (direct link to article).

Recognizing that (and discussing the reasons why) efforts at obtaining jury nullification in a criminal case are generally barred, the author sketches out reasons why “in the limited circumstances of the factually guilty but morally blameless accused, nullification is an appropriate exercise of the discretion and trust entrusted to a panel comprised of those the convening authority hand-selected for their judicial temperament and experience.” Korte, supra, at 129. Those limited circumstances include a case that does not involve “only universally accepted criminal charges,” that presents evidence to “support an eventual nullification argument,” and that ends with an argument that “contain[s] the hallmarks of a nullification argument” (including appeals to the members’ conscience, discussion of the direct consequences of conviction, and questioning of the law at issue). Korte, supra, at 133.

The author also illustrates how current law allows for nullification. For example:

The military judge’s standard Benchbook instructions, however, allow panels the opportunity to acquit even when there is no reasonable doubt as to guilt. This opportunity is written into the standard instructions relating to the instructions on findings. These instructions state that where there is reasonable doubt as to the guilt of the accused, “that doubt must be resolved in favor of the accused, and (he) (she) must be acquitted . . .”

The instructions continue, describing the alternate scenario: “However, if on the whole evidence you are satisfied beyond a reasonable doubt of the truth of each and every element, then you should find the accused guilty.”

The significance of the differing standards cannot be understated. The rules for courts-martial protect the accused by mandating a “not guilty” verdict when more than one-third of the panel members have reasonable doubts as to guilt. The same rules, as delineated in the standard Benchbook instructions, do not expressly require a “guilty” verdict when the members have no reasonable doubt as to guilt. Thus, panel members who find that the government has met the elements beyond reasonable doubt have latitude to find the accused “not guilty” because the members merely should find the accused guilty. This deliberate language allows for nullification in the limited cases where the panel members find that the accused committed the offense, but they do not wish to convict. These instructions are not inconsistent with Article 51(c), which does not specifically require instructions on panel obligations where all elements are met, opting instead for a clear instruction that the accused is presumed innocent until guilt is established by evidence beyond reasonable doubt.

Korte, supra, at 133.

In United States v. Salyer, 72 M.J. 415 (C.A.A.F. 2013) (CAAFlog case page), CAAF reversed a child pornography conviction, and dismissed the charge with prejudice, after finding the uncured appearance of unlawful command influence in the trial counsel’s access and use of a military judge’s personnel record to seek the judge’s recusal, and in a supervising counsel’s ex parte communication with the judge’s supervisor to complain about the judge’s rulings. The case was our #4 Military Justice Story of 2013.

In a recent decision in United States v. Hutchinson, No. 38503 (A.F. Ct. Crim. App. Jun. 29, 2015) (link to slip op.), the AFCCA addresses a somewhat similar set of facts. Raising concerns about speedy trial issues, the trial counsel (prosecutor) repeatedly asked the military judge to hold a session of court to address any speedy trial concerns. The judge repeatedly denied the Government’s request to go on the record. Then:

the chief regional military judge (CRMJ) for the central region (who was also the military judge’s supervisor and rater) called the military judge. According to the testimony of the military judge, his supervisor informed him that he had received a call from the staff judge advocate (SJA) to the special court-martial convening authority for this case. The CRMJ indicated the SJA said the military judge was being recalcitrant, and the CRMJ asked the military judge for information on the situation. Having just received two electronic requests for an Article 39(a), UCMJ, session from trial counsel, the military judge understood exactly what his supervisor was referring to, and he then explained the chronology of the case to the CRMJ. He felt the need to do this because his judicial temperament had been questioned to his supervisor. . . .

As he considered the matter after the call, however, the military judge became annoyed and unhappy. His impression was that the SJA was unhappy with his decision to not hold an Article 39(a), UCMJ, session and considered it important enough to call the military judge’s supervisor to complain about his performance and professionalism in a pending matter in an ongoing court-martial and to make the government’s strong desires known, all in an apparent attempt to influence the proceedings. This action by the SJA caused the military judge to “think twice” about his actions in denying the government’s prior requests.

A few hours later, the military judge received a motion from the government, asking again that he convene an Article 39(a), UCMJ, session. This time, the military judge granted the government’s request. . . .

Slip op. at 5-6. The military judge did not recuse himself but a different judge was detailed to the case because the original judge was transferring. The appellant ultimately pleaded guilty to conspiracy, wrongful sale of military property, larceny, and disorderly conduct, in violation of Articles 81, 108, 121, and 134, and was sentenced to confinement for 38 months and reduction to E-1. Pursuant to a pretrial agreement, the convening authority reduced the confinement to 19 months. Then, on appeal, the appellant asserted the existence of an appearance of unlawful command influence in the ex parte communications with the judge.

Writing for a three judge panel of the AFCCA, Senior Judge Hecker makes three conclusions: (1) that the issue of UCI was not (and could not be) waived by the appellant’s guilty pleas and pretrial agreement; (2) that the appellant has made a colorable showing of the appearance of unlawful command influence; (3) that the appearance is harmless beyond a reasonable doubt.

Read more »

The Judge Advocate General of the Air Force certified two cases to CAAF this week:

No. 15-0750/AF. U.S. v. Kevin Gay. CCA 38525.  Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 this date on the following issue:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS (AFCCA) ABUSED ITS DISCRETION AND COMMITTED LEGAL ERROR BY REACHING ITS DECISION THAT ARTICLE 66, UCMJ, GRANTS IT THE AUTHORITY TO GRANT SENTENCE APPROPRIATENESS RELIEF FOR POST-TRIAL CONFINEMENT CONDITIONS EVEN THOUGH THERE WAS NO VIOLATION OF THE EIGHTH AMENDMENT OR ARTICLE 55, UCMJ, IN DIRECT CONTRAVENTION OF THIS COURT’S BINDING PRECEDENT.

I discussed the AFCCA’s published decision in Gay in this post.

No. 15-0749/AF. U.S. v. Daniel H. Chin. CCA 38452.  Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 this date on the following issue:

WHETHER THE AIR FOR COURT OF CRIMINAL APPEALS (AFCCA) ABUSED ITS DISCRETION AND COMMITTED LEGAL ERROR BY FINDING THAT UNREASONABLE MULTIPLICATION OF CHARGES WAS NOT WAIVED, IN DIRECT CONTRADICTION OF THIS COURT’S BINDING PRECEDENT IN UNITED STATES V. GLADUE, 67 M.J. 311 (C.A.A.F.2009)

The AFCCA’s decision in Chin is available here. The appellee pleaded guilty to “six specifications of failure to obey a lawful general order or regulation, seven specifications of dereliction of duty, one specification of larceny, and five specifications of unauthorized possession of documents relating to the national defense and failure to deliver said documents to the officer or employee of the United States entitled to receive them,” in violation of Articles 92, 121, and 134. Slip op. at 1-2. The charges are largely related to the appellee’s mishandling of classified information.

As part of a pretrial agreement, the appellee agreed to waive all waivable motions, and the appellee’s trial defense counsel specifically stated that but for that provision she would have made “multiplicity motion both [on] findings and sentencing.” Slip op. at 5. Notwithstanding these waivers, the AFCCA found an unreasonable multiplication of charges for both findings and sentencing purposes, exercising its authority under Article 66(c) to affirm only the findings and sentence that it believes should be approved. As a result, the CCA disapproved three of the specifications, but approved the sentence as approved by the convening authority.

The Wright case is an Air Force sexual assault prosecution that was dismissed last year by Air Force Lieutenant General Craig Franklin. After General Franklin dismissed the charges, authority over the case was transferred to Air Force District of Washington in Maryland, new charges were preferred, a second Article 32 pretrial investigation was conducted, and the charges were referred to trial. Litigation of defense claims of unlawful command influence followed, and the trial judge eventually abated the proceedings after the Government asserted an attorney-client privilege over documents sought by the defense in connection with those claims. The Government appealed that abatement and the AFCCA reversed, finding that the military judge’s findings were incomplete.

I discussed the AFCCA’s decision in this post. I summarized our past coverage in this post.

Now Stars and Stripes reports here that the case will proceed to trial despite a finding of improper influence by senior Air Force officials:

Lt. Col. Joshua Kastenberg, in a July 30 ruling in response to a defense motion to dismiss the case against Airman 1st Class Brandon T. Wright, found that Lt. Gen. Richard Harding, formerly the Air Force Judge Advocate General, had improperly influenced the case or had given the appearance of doing so.

One such instance, the judge ruled, was recommending that Wright’s case be transferred to another court-martial convening authority for a do-over after the first convening authority, Lt. Gen. Craig Franklin, dismissed the case in the summer of 2013. Franklin’s dismissal came after an Article 32 investigative hearing at Aviano Air Base, Italy.

Such transfers are almost unheard of. It happened in the Wright case, Kastenberg’s ruling says, in part because Harding was worried that “the failure to have charges preferred against SrA Wright would enable Senator Kirsten Gillibrand to gain needed votes on a pending bill to remove commanders from the court-martial process.”

. . .

Yet none of these actions affected the current case against Wright, Kastenberg said, because all parties involved in the second investigation — at the Air Force District of Washington — acted independently, with no unlawful command influence. As a result of that investigation, a convening authority sent the case to court-martial.

CAAF decided the certified case of United States v. Quick, __ M.J. __, No. 15-0347/MC (CAAFlog case page) (link to slip op.), on Tuesday, August 11, 2015. A divided court rejects a Government challenge to longstanding precedent that permits a court of criminal appeals to order a rehearing on only the sentence adjudged by a court-martial. Holding that the Government failed to justify reversing this precedent, CAAF affirms the decision of the NMCCA that ordered a sentence-only rehearing in this case.

Chief Judge Erdmann writes for the court joined by Judge Ryan. Judge Baker writes separately, concurring in the result. Judge Stucky dissents, joined by Judge Ohlson.

The Judge Advocate General of the Navy certified the following issue to CAAF:

Whether precedent authorizing courts of criminal appeals to order sentence-only rehearings should be overruled based on: (a) Jackson v. Taylor, 353 U.S. 569 (1957), which stated “no [such] authority” exists; (b) the plain language of the statute including the conjunctive “findings and sentence” in Article 66(d) in contrast to authority granted the judge advocates general in Article 69(a) to act with respect to “findings or sentence or both” and the convening authority in Article 60(f)(3) to order sentence rehearings; and, (c) judicial economy.

The Navy-Marine Corps CCA ordered a sentence-only rehearing in this case after it reversed the appellee’s conviction of viewing an indecent visual recording in violation of Article 120(c) because it found that the offense requires actually viewing the real-life private area of a person (and not merely viewing a recording as the appellee did). United States v. Quick, 74 M.J. 517 (N-M. Ct. Crim. App. 2014) (discussed here). The CCA ordered the rehearing because it found that it could not reassess the sentence for the other convictions because the penalty landscape was dramatically changed by the reversal of the indecent viewing conviction. The court’s order returned the case to the convening authority with the option to either refer the case to a new court-martial to adjudge another sentence or to forego another sentence and approve a sentence of no punishment. See R.C.M. 810; R.C.M. 1107(e)(1)(C)(iii). But the Navy JAG certified the case to CAAF to challenge the CCA’s authority to issue such an order.

In yesterday’s decision CAAF rejects that challenge because:

In the more than six decades since the adoption of the UCMJ, this court has consistently interpreted Article 66(d), UCMJ, to authorize CCAs to order sentence-only rehearings. . . . The ability of CCAs to order sentence-only rehearings is an accepted and viable appellate remedy and is relied upon by all litigants in the military justice system.

Slip op. at 16.

Read more »