This week at SCOTUS: The cert. petition in Dalmazzi is scheduled for conference on March 3. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking three cases:

This week at CAAF: The next scheduled oral argument at CAAF is on February 28, 2017.

This week at the ACCA: The Army CCA will hear oral argument in two cases this week, both on Wednesday, February 22, 2017:

At 10 a.m.: United States v. Robinson, No. 20150120

Issue: WHETHER SPECIALIST ROBINSON WAS DENIED HIS 6TH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL WHERE HIS DEFENSE COUNSEL FAILED TO INTRODUCE EVIDENCE THAT WOULD HAVE DISCREDITED THE ALLEGED VICTIM’S CLAIMED LEVEL OF INTOXICATION AND ALSO FAILED TO OFFER EVIDENCE THAT THE ALLEGED VICTIM INVITED SPECIALIST ROBINSON INTO HER ROOM PRIOR TO THE ALLEGED SEXUAL ACTIVITY TAKING PLACE.

At 1 p.m.: United States v. Franks, No. 20140952

Issues:
I. THE MILITARY JUDGE REVERSIBLY ERRED BY RULING THAT SECOND LIEUTENANT FRANKS’ FEAR OF COMMITTING SUICIDE COULD NOT SUPPORT THE DEFENSE OF DURESS.

II. THE EVIDENCE WAS FACTUALLY AND LEGALLY INSUFFICIENT TO SUPPORT THE CONVICTION FOR DESERTION, BECAUSE THE ALLEGED IMPORTANT SERVICE WAS SPECULATIVE AND NON-IMMINENT.

III. THE EVIDENCE WAS FACTUALLY AND LEGALLY INSUFFICIENT TO SUPPORT THE CONVICTION FOR CONDUCT UNBECOMING AN OFFICER AND GENTLEMEN, BECAUSE THERE WAS NO EVIDENCE OF A GUILTY MIND, AND THE MILITARY JUDGE REVERSIBLY ERRED BY REFUSING TO INSTRUCT ON MENS REA.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on March 2, 2017.

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 website shows no scheduled oral arguments.

Military jurisprudence concerning the proper victim to charge in an electronic theft case was cumbersome after CAAF’s 2014 decision in United States v. Cimball Sharpton, 73 M.J. 299 (CAAFlog case page).* In that case, the Court held that Cimball Sharpton had stolen from the Air Force when she misused her government purchase card – she had not stolen from the card-issuing bank or the vendors where the card had been illicitly used.

In its June 2016 decision, United States v. Williams, 75 M.J. 129 (2016) (CAAFlog case page), CAAF lamented its “unfortunate choice of language in Cimball Sharpton” (75 M.J. at 134) and set about clarifying the applicable standard:

We reiterate, in the usual case of a credit card or debit card larceny, the “person” who should be alleged in the specification is a person from whom something was obtained, whether it is goods or money.

75 M.J. at 132 (emphasis added). Under the “usual” standard, Williams, who stole his buddy’s credit card information and used it to buy pizza and access to an adult website, received an appellate acquittal. CAAF held that Williams had stolen from the pizza and porn vendors, not, as the government had charged, from his buddy. 75 M.J. at 134. CAAF’s explanation for why Williams was a “usual” case, while Cimball Sharpton was not, had to do with contracts: In Cimball Sharpton, the card account holder (the Air Force) had a contract with the card-issuing bank (U.S. Bank) establishing that the bank would be held harmless for fraudulent charges made by the account holder’s agents (Cimball Sharpton). Id. That contractual dynamic, CAAF held, made Cimball Sharpton unusual.

After acquitting Williams, CAAF took the time to write footnote 2, reminding practitioners of a concern that is even more fundamental than alleging the correct victim: Article 121, being derived from the common law, was only ever intended to punish the theft of things which are “tangible and capable of being possessed.” 75 M.J. 130, n.2. Williams’ theft of access to an adult website did not involve taking anything tangible. Therefore, charging that theft under Article 121 was problematic – it was a problem that was moot given the acquittal on other grounds, but the fact that CAAF took the time to address the principle despite the fact that it was moot only makes the point more salient.

It is against that backdrop – the complexities under Article 121 of selecting the right victim and charging only tangible thefts – that Colonel James A. Young, USAF (Ret.), wrote his July 2016 article in The Army Lawyer – Larceny in Credit, Debit, and Electronic Transactions, 2016 Army Law 26. Readers should note that Colonel Young is the Senior Legal Adviser to CAAF Judge Scott W. Stucky.  In his Article, Colonel Young advises:

There is a better way to charge these types of offenses without having to determine the identity of the victim. Charge the accused with violating Article 134, UCMJ, based on the federal statute proscribing the use of unauthorized access devices.

Id. at 26. Specifically, Colonel Young notes that 18 U.S.C. § 1029 “covers a wide range of fraudulent activity with respect to credit, debit, and electronic transactions without requiring identification of the victim of a loss. Instead, the focus is on the accused’s use of a particular unauthorized access device.” Id. at 27. Colonel Young posits that, if the accused stole “anything of value aggregating $1000 or more,” then those thefts, whether of intangibles or not, can be punished under Article 134(3) by incorporating 18 U.S.C § 1029(a)(2). If the thefts do not aggregate to $1000 or more, then a violation of Article 134(1) or Article 134(2) can be charged instead.

The potential catch to Colonel Young’s recommendation is the preemption doctrine. He addresses that concern by arguing that Article 121 does not preempt his proposed charging scheme because Congress never intended Article 121 to cover anything other than the methods of thievery known at common law. While potentially correct, that theory seems at odds with CAAF’s precedent. Specifically, CAAF seems pretty comfortable with the idea that electronic theft of tangible property and money is chargeable under Article 121. If that is correct, then the preemption doctrine would seem to preclude charging the theft of tangibles under Article 134, whether the theft is committed by electronic means or not. Still, Colonel Young’s suggestions are useful for cases where the property stolen is intangible. Given footnote 2 in Williams, that sort of theft appears to be outside the reach of Article 121, which leaves Article 134 as the only means for punishing that species of offense.

* Disclosure: I represented Cimball Sharpton on appeal before the CCA and CAAF.

CAAF granted review in two cases yesterday. The first grant is in a case that was certified by the Judge Advocate General of the Air Force back in November (discussed here):

No. 17-0086/AF. United States, Appellant/Cross-Appellee v. Patrick Carter, Appellee/Cross-Appellant. CCA 38708. 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. THE AIR FORCE COURT OF CRIMINAL APPEALS DISMISSED THE CHARGE AND SPECIFICATIONS IN THIS CASE IN 2013 AND AGAIN IN 2016. BUT IT EXCEEDED THE EIGHTEEN-MONTH PRESUMPTION OF UNREASONABLE DELAY BEFORE DOING SO EACH TIME. HAS APPELLEE BEEN DENIED DUE PROCESS WHERE HE COMPLETED HIS SENTENCE TO THREE YEARS OF CONFINEMENT 158 DAYS BEFORE THIS COURT AFFIRMED THE LOWER COURT’S FIRST DISMISSAL OF THIS CASE ON AUGUST 2, 2013?

II. WHETHER APPELLEE’S PROSECUTION FOR CHILD ENDANGERMENT WAS BARRED BY THE STATUTE OF LIMITATIONS WHERE MORE THAN FIVE YEARS HAD ELAPSED AND APPELLEE WAS NOT BROUGHT TO TRIAL WITHIN 180 DAYS OF THIS COURT’S AFFIRMANCE OF THE LOWER COURT’S DISMISSAL OF THAT SPECIFICATION.

III. WHETHER UNITED STATES COURT OF MILITARY COMMISSION REVIEW JUDGE, MARTIN T. MITCHELL, WAS STATUTORILY AUTHORIZED TO SIT AS ONE OF THE AIR FORCE COURT OF CRIMINAL APPEALS JUDGES ON THE PANEL THAT DECIDED APPELLANT’S CASE.

IV. WHETHER JUDGE MARTIN T. MITCHELL’S SERVICE ON BOTH THE AIR FORCE COURT OF CRIMINAL APPEALS AND THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW VIOLATED THE APPOINTMENTS CLAUSE GIVEN HIS STATUS AS A PRINCIPAL OFFICER ON THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW.

V. WHETHER JUDGE MARTIN T. MITCHELL WAS IN FACT A PRINCIPAL OFFICER FOLLOWING HIS APPOINTMENT BY THE PRESIDENT TO THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW IN LIGHT OF THE PROVISIONS OF 10 U.S.C. § 949b(b)(4)(C) AND (D), AUTHORIZING REASSIGNMENT OR WITHDRAWAL OF APPPELLATEMILITARY JUDGES SO APPOINTED BY THE SECRETARY OF DEFENSE OF HIS DESIGNEE.

Briefs will be filed under Rule 25 on Issues I and II only.

The second involves a specified issue in a Coast Guard case:

No. 17-0143/CG. U.S. v. Ernest M. Ramos. CCA 1418. On consideration of the petition for grant of review of the decision of the United States Coast Guard Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue specified by the Court:

WHETHER APPELLANT WAS ENTITLED TO ARTICLE 31(b), UCMJ, WARNINGS AT ANY POINT DURING HIS INTERROGATION BY CGIS, AND IF SO, WHETHER HE WAS PREJUDICED BY THE ADMISSION OF ANY OF HIS STATEMENTS.

Briefs will be filed under Rule 25.

The Coast Guard CCA’s opinion is available here and reveals that:

On the morning of 8 April 2014, Appellant, stationed in Seattle, Washington, reported to his division officer that a civilian with whom his wife had a business had made threats against Appellant and his wife and had said he knew where Appellant worked. Appellant mentioned that the business involved recreational marijuana, but that his name was not on the paperwork of the business. Appellant’s division officer called upon his superior, the operations officer, to whom Appellant repeated his story. The operations officer called upon his superior, the executive officer, to whom Appellant repeated his story in the presence of the operations officer.

The executive officer took steps to notify security officials of the threat, including calling Coast Guard Investigative Service (CGIS). CGIS requested to talk with Appellant. Thereafter, Appellant was interviewed by CGIS agents, to whom he repeated his story with further details.

The military judge concluded, and the CCA affirmed, that the appellant’s interrogation by CGIS was not for a law enforcement or disciplinary purpose.

Audio of Wednesday’s oral argument before the NMCCA in United States v. Dinger, No. 201600108, is available here.

Airman 1st Class Charles Amos Wilson III – whose case we last discussed here – was found guilty on Monday of the premeditated murder of his fiancee and their unborn child in 2013. The case was referred capital.

News reports here (Air Force Times), here (AP), and here (local).

CAAF decided the Air Force case of United States v. Dockery, __ M.J. __ No. 16-0296/AF (CAAFlog case page) (link to slip op.) on Tuesday, February 14, 2017. The court finds that the military judge committed error when he granted the prosecution’s challenge of a member, but that the error did not prejudice the appellant’s rights. CAAF reverses the decision of the Air Force CCA in part, but it affirms the findings and sentence.

Chief Judge Erdmann writes for the court, joined by Judge Stucky and Judge Ryan. Judge Sparks concurs, joined by Judge Ohlson.

Read more »

This week at SCOTUS: The Solicitor General waived the right to respond to the cert. petition in Dalmazzi. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking three cases:

This week at CAAF: The next scheduled oral argument date at CAAF is February 28, 2017 (though no arguments are presently scheduled).

This week at the ACCA: The Army CCA will hear oral argument in one cases this week, on Monday, February 13, 2017, at 10 a.m.:

United States v. Battles, No. 20140399

Issue: WHETHER THE MILITARY JUDGE ERRED [BY] FAILING TO INSTRUCT THE PANEL ON THE MENS REA NECESSARY TO MAKE APPELLANT’S CONDUCT CRIMINAL [TO THE SPECIFICATION OF CHARGE I].

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on March 2, 2017.

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 one case this week, on February 15, 2017, at noon. The argument will be heard at the George Washington University Law School:

United States v. Dinger, No. 201600108

Case summary: A military judge sitting as a general court-martial convicted the appellant pursuant to his pleas of two specifications of committing indecent acts, one specification of attempting to produce child pornography, two specifications of wrongfully making an indecent visual recording, and one specification of possessing child pornography, in violation of Article 120, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920 (2006), and Articles 80, 120c, and 134, UCMJ, 10 U.S.C. §§ 880, 920c, and 934 (2012). The military judge sentenced the appellant to nine years’ confinement and a dishonorable discharge. The convening authority approved the sentence as adjudged, but suspended confinement over 96 months pursuant to a pre-trial agreement.

Issues:
I. WHETHER COURTS-MARTIAL HAVE PERSONAL JURISDICTION OVER MILITARY RETIREES IN LIGHT OF THE SUPREME COURT’S HOLDING IN BARKER V. KANSAS, 503 U.S. 594, 605 (1992), THAT FOR TAX PURPOSES, MILITARY RETIREMENT BENEFITS ARE NOT CURRENT COMPENSATION FOR REDUCED SERVICES?

II. WHETHER CONGRESS’ STATEMENT IN 10 U.S.C. § 6332 THAT THE TRANSFER OF A MEMBER OF THE NAVAL SERVICE TO A RETIRED STATUS “IS CONCLUSIVE FOR ALL PURPOSES” PRECLUDES THE ISSUANCE OF A PUNITIVE DISCHARGE TO A RETIREE?

It is commonly understood that appellate courts exist to serve two functions – “(1) correction of error (or declaration that no correction is required) in the particular litigation; and (2) declaration of legal principle, by creation, clarification, extension, or overruling.” See J. Dickinson Phillips, Jr., The Appellate Review Funtion: Scope of Review, 47 Law & Contemp. Prob. 1 (Spring 1984). CAAF was created to be the military jurisdiction’s court of last resort—it’s the military’s Supreme Court. See Noyd v. Bond, 395 U.S. 683, 694 (1969) (oyez) (related CAAFlog post).

In a recent article published by the Vermont Law School, In Order to Form a More Perfect Court: A Quantitative Measure of the Military’s Highest Court’s Success as a Court of Last Resort, 41 Vt. L. Rev. 71, Captain (USAF) Rodrigo M. Caruço posits that, in a healthy system, the work of a court of last resort, such as CAAF, should be almost exclusively declaration of legal principle rather than error correction. Captain Caruço reached that conclusion after having studied SCOTUS decisons and decisions from State courts of last resort. Those high courts rarely engage in error correction. In contrast, CAAF appears to spend just under half of its time correcting errors in individual cases rather declaring law for the military jurisdiction. Id. at 108. Captain Caruço identifies two causes for this: 1) incompetence by advocates and courts below, and 2) (perhaps because of that incompetence) CAAF does not yet feel comfortable behaving as a court of last resort should.

To remedy this situation, Captain Caruço recommends that CAAF’s rules be amended to adopt a standard for granting review that mirrors SCOTUS’ Rule 10. Such a rule would expressly state, as SCOTUS Rule 10 does, that review “is rarely granted when the asserted error consists of erroneous factual findings or misapplication of a properly stated rule of law.” Id. The rule would then provide that, except in dire circumstances, review would only be granted to serve law-declaration grounds, such as to resolve inconsistencies in how the law is being applied among the services. Captain Caruço also recommends that CAAF start “signposting” its decisions – identifying in the decision itself which law-declaration purpose compelled CAAF to grant review in the first place. By signposting, perhaps CAAF could serve as a bellwether for the entire jurisdiction – providing gentle instruction to the appellate bar which would in turn improve that bar’s advocacy. A more effective appellate bar would then presumably influence the service Courts of Criminal Appeals to weed out more errors at their level, reducing the number of cases presented to CAAF still requiring error correction.

Captain Caruço’s article does not address it, but readers will be aware that the competency of the participants in the military justice system, at all levels, has also been a concern for Congress. Indeed, through § 542 of the National Defense Authorization Act of Fiscal Year 2017 (Public Law 114-328) (the passage of which was this blog’s #1 Military Justice Story of 2016), Congress has required the service secretaries to establish “military justice experience designators or skill identifiers” so that “counsel detailed to prosecute or defend a court-martial have sufficient experience and knowledge.” That statute is also intended to ensure that judge advocates entering the military justice system get trained by folks with appropriate experience and skill to perform those duties. Additionally, the FY17 NDAA requires “appropriate minimum terms” for the assignment of military trial judges (§ 5184) and appellate judges (§ 5330). Those statutory measures were intended to improve the quality of military justice practice on the bench and from the bar, at trial and on appeal. It is hard to escape the impression that Congress also intended by those measures to make military justice a specialty practice.

If Captain Caruço’s premise is correct, then CAAF is a sentinel species for measuring the effectiveness of Congressional reforms (or the military institution’s implementation of those reforms). If the proportion of error correction decisions issued by CAAF increases, then CAAF-as-groundhog might be telling us that winter is still coming. In contrast, if the Court’s proportion of error correction decisions decreases, then CAAF-as-groundhog might be telling us that spring is nearly here.

In an order issued today (available here) in the Air Force case of United States v. Ortiz, No. 16-0671 (CAAFlog case page), CAAF affirms the decision of the three-judge panel of the Air Force CCA that included a Presidentially-appointed and Senate-confirmed judge of the Court of Military Commission Review:

On consideration of the briefs of the parties, the briefs of amici curiae, and oral argument, it is, by the Court, this 9th day of February, 2017,

ORDERED:

That the decision of the United States Air Force Court of Criminal Appeals is hereby affirmed. The opinion of the Court will be issued on a future date. C.A.A.F. R. 43(b). A petition for reconsideration may be filed no later than days after the date of the issuance of said opinion.

CAAF decided the Air Force case of United States v. Bowen, __ M.J. __, No. 16-0229/AF (CAAFlog case page) (link to slip op.) on Wednesday, February 8, 2017.  Concluding that the military judge failed to properly consider the condition of the appellant’s wife when admitting her non-verbal response as an excited utterance, CAAF reverses the findings and the decision of the Air Force CCA, authorizing a rehearing.

Chief Judge Erdmann writes for a unanimous court.

Airman First Class (E-3) Bowen was convicted contrary to his pleas of not guilty, by a general court martial composed of officer members, of aggravated assault of his wife and also of assault of another airman, both in violation of Article 128. He was sentenced to confinement for one year and reduction to E-1.

The evidence admitted at trial included testimony by Air Force security personnel who entered Bowen’s house and found his wife unconscious and badly injured in the bathtub. An investigator testified – over defense objection – that the wife was partially conscious when she was asked if “her husband ‘did this’ to her,” and that in response the wife nodded her head indicating a positive response. Slip op. at 4. The Air Force CCA found no error.

CAAF specified an issue for review questioning the military judge’s ruling that permitted this testimony:

Whether the military judge erred in applying the “excited utterance” exception to the hearsay rule to permit the government to introduce through the testimony of law enforcement personnel that appellant’s wife nodded her head in response to a question whether her husband “did this,” and in concluding that the prejudicial effect of this testimony was outweighed by its probative value. SeeM.R.E. 802 and 803(2); M.R.E. 403; United States v. Donaldson, 58 M.J. 477 (2003); United States v. Jones, 30 M.J. 127 (C.M.A. 1990); United States v. Arnold, 25 M.J. 129 (C.M.A. 1987); United States v. Iron Shell, 633 F.2d 77 (8th Cir. 1980), cert. denied, 450 U.S. 1001 (1981).

In yesterday’s decision, CAAF determines that the military judge did abuse his discretion in admitting the head nod because he failed to properly consider the wife’s mental capacity. The court does not reach the separate question of whether the prejudicial effect of the head nod outweighed its probative value. Considering the impact the evidence had in the case – including that the defense asserted that the other airman (the other alleged victim) was the true source of the wife’s injuries – CAAF concludes that the erroneous admission affected both assault convictions.

Read more »

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

United States v. Ortiz, No. 16-0671 (CAAFlog case page): Oral argument audio.

United States v. Oliver, No. 16-0484/AF (CAAFlog case page): Oral argument audio.

Last week CAAF granted review in the following Air Force case:

No. 17-0148/AF. U.S. v. Stephan H. Claxton. CCA 38188. 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 FINDINGS AND SENTENCE MUST BE SET ASIDE IN LIGHT OF UNITED STATES v. HILLS, 75 M.J. 350 (C.A.A.F. 2016).

II. WHETHER THE GOVERNMENT’S FAILURE TO DISCLOSE THAT AIR FORCE ACADEMY CADET E.T. WAS A CONFIDENTIAL INFORMANT FOR THE AIR FORCE OFFICE OF SPECIAL INVESTIGATIONS (AFOSI) PURSUANT TO BRADY v. MARYLAND, 373 U.S. 83 (1963), WAS HARMLESS BEYOND A REASONABLE DOUBT.

Briefs will be filed under Rule 25.

We last noted this case (in the context of Issue II) in this post.

The AFCCA’s opinion is available here. The CCA found that the failure to disclose the cadet’s status as a confidential informant was a discovery violation:

We find that Appellant’s defense counsel should have been informed that former Cadet Thomas was an informant and should have received some portions of former Cadet Thomas’ AFOSI dossier in discovery . . . This information revealed by former Cadet Thomas about his work as an informant would have provided substantial ammunition for the Defense to use in their efforts to impeach him and undercut his credibility.

Slip op. at 10. The CCA concluded, however, that it was harmless beyond a reasonable doubt because “there is no reasonable possibility that the disclosure error contributed to the contested findings of guilty.” Slip op. at 12.

On the Hills issue the CCA concluded that the improper use of the charged offenses for propensity purposes was also harmless beyond a reasonable doubt based on the strength of the other evidence:

we find any error surrounding the admission of propensity evidence in this case to be harmless beyond a reasonable doubt as it applies to the charged offenses involving both Cadet MI and Ms. SW. Unlike the Hills case, where the evidence was weak and there was no eyewitness testimony, the evidence supporting the charges of which Appellant was convicted was extremely strong. The testimony of Cadet MI and Ms. SW was strong, consistent over time, and corroborated by a number of other witnesses, as addressed earlier. And perhaps most harmful of all were Appellant’s own admissions. Conversely, the evidence regarding the charges involving Ms. KA was weak. The fact that Appellant was acquitted of the charges involving Ms. KA further undercuts the idea that the instruction may have contributed to the findings of guilty.

Slip op. at 20-21.

This week at SCOTUS: As noted here, a cert. petition was filed in Dalmazzi last week. Additionally, SCOTUSblog now has a case page (here) for Sterling with links to amicus briefs . I’m not aware of any military justice developments at the Supreme Court, where I’m tracking two cases:

This week at CAAF: CAAF will hear oral argument in two cases this week, on Tuesday February 7, 2017, beginning at 9:30 a.m. (the court did not schedule any arguments for the Feb. 8 session):

United States v. Ortiz, No. 16-0671 (CAAFlog case page)

Issues:
I. Whether United States Court of Military Commission Review Judge, Martin T. Mitchell, is statutorily authorized to sit as one of the Air Force Court of Criminal Appeals judges on the panel that decided Appellant’s case.

Amended Issue: II. Whether Judge Martin T. Mitchell’s Service on both the Air Force Court of Criminal Appeals and the United States Court of Military Commission Review violates the Appointments Clause given his status as a principal officer on the United States Court of Military Commission Review.

Specified Issue: III. Whether Judge Martin T. Mitchell was in fact a principal officer following his appointment by the President to the United States Court of Military Commission Review in light of the provisions of 10 U.S.C. § 949b(4)(c) and (d), authorizing reassignment or withdrawal of appellate military judges so appointed by the Secretary of Defense or his designee.

Case Links:
AFCCA opinion
Blog post: CAAF picks a replacement for Dalmazzi
Appellant’s brief
Appellee’s (A.F. App. Gov’t Div.) brief
Amicus Curiae Brief: Army Appellate Government Division
• Amicus Curiae Brief: Navy-Marine Corps Appellate Government Division
• Amicus Curiae Brief: Military Commissions Defense Organization (& Appendix)
Blog post: Argument preview

United States v. Oliver, No. 16-0484/AF (CAAFlog case page)

Issue: Whether wrongful sexual contact was a lesser-included offense of abusive sexual contact.

Case Links:
AFCCA opinion
Appellant’s brief
Appellee’s (A.F. App. Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview

This week at the ACCA: The Army CCA will hear oral argument in one cases this week, on Wednesday, February 8, 2017, at 1:30 p.m. The argument will be heard at the University of Tennessee School of Law:

United States v. Mayo, No. 20140901

Issue: [Whether] the military judge erred in denying the implied bias challenge of a panel member whose wife was a victim of domestic violence and whose uncle-in-law was murdered by a perpetrator who escaped punishment.

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 is on February 15, 2017.

In this post I noted the publication of proposed changes to the MCM for 2017. Last week I submitted a public comment regarding those proposed changes. It’s not available on the docket website (yet), so you can read it here.

My comment addresses only one of the proposed changes: the proposal to rewrite R.C.M. 1103A (direct link) to limit appellate defense counsel review of sealed materials attached to the record of trial but not disclosed to the trial participants. This was an idea advanced last year by the Air Force Appellate Government Division (discussed here and here). The proposed change seems to be a direct response to the refusals of the AFCCA and CAAF to judicially rewrite the rule in order to limit such review. In my public comment I assert that:

There is no rational justification to allow appellate military judges to review the complete record of trial but not afford a similar right to appellate counsel (who may – and often do – outrank the judges themselves). Furthermore, protective orders issued by a court of criminal appeals or by CAAF are more than adequate to protect the privacy interests of victims, witnesses, and others whose private affairs may become part of a record of trial by court-martial.

R.C.M. 1103A was established in 2005 and reflects the considered judgment of the President informed by the decisions of the Court of Appeals for the Armed Forces (CAAF) in United States v. Romano, 46 M.J. 269 (C.A.A.F. 1997), and United States v. Rivers, 49 M.J. 434 (C.A.A.F. 1998). There are no new circumstances that warrant upsetting this settled, functional, and practical rule. The proposed amendment should be rejected.

My comment also suggests a number of additional changes to the MCM. I want to highlight one of these in particular: that the Rules for Courts-Martial explicitly state that Government counsel represent either the prosecution or the appellate government division, but not the Government at large.

Part II of the MCM repeatedly references the prosecution as a party to a court-martial, and so trial counsel should refer to themselves as the prosecution (and not as the Government or the United States). Furthermore, the arguments advanced by attorneys assigned to the various appellate government divisions are not coordinated among the divisions or with any central authority (like the Attorney General), and so the divisions should avoid the exaggerated claim that they speak for the entire Government. CAAF’s Rule 26(a) (and the AFCCA’s Rule 15.3(a)) actually allows each of the appellate government divisions to file amicus curiae briefs without invitation, emphasizing the independence of each division. If, however, each appellate government division represents the entire Government, then the rule would allow the Government to file an amicus curiae brief in support of itself.

This isn’t intended as an attack on the counsel who prosecute courts-martial and court-martial appeals. They’re professionals who represent a side in our adversarial system. But it’s at least incredibly awkward when individual prosecutors or an individual appellate government division personifies the United States. It’s also an uncomfortable characterization in a trial by court-martial where all of the participants are agents of the Executive Branch (and it could have an undue influence on the process). I realize that Article 38(a) states that trial counsel “shall prosecute in the name of the United States,” that Article 70(b) states that appellate government counsel “shall represent the United States,” and that courts-martial are captioned United States v. [Accused]. Nevertheless, I believe that use of the prosecution and the appellate government division makes an important semantic distinction.

I have already made this change in my writing on this blog, generally referring to trial counsel as members of the prosecution and to appellate government briefs as the product of the division involved.

Two recent law review notes published by the University of Virginia and the University of Illinois start from the same premise: that the military’s zealous sexual assault prevention and response efforts have compromised the military justice system’s ability to appropriately and reliably dispose of allegations.

In his note, Overcoming Overcorrection: Towards Holistic Military Sexual Assault Reform, 102 Va. L. Rev. 2027 (2016), Greg Rustico favors giving prosecutorial discretion for all crimes with civilian analogues to judge advocates, rather than vesting that power in commanders.  In contrast, a note by Heidi Brady argues for giving prosecutorial discretion in the military justice system to Department of Justice lawyers.  See Justice is No Longer Blind: How the Effort to Eradicate Sexual Assault in the Military Unbalanced the Military Justice System, 2016 U. Ill. L. Rev. Online 193.

In supporting their recommendations, Mr. Rustico and Ms. Brady point to relatively recent changes to the military justice system – such as the revision of Article 32 and the requirement that a commander’s performance/fitness appraisal consider how they handled allegations of sexual assault within their units.  Both also spend a good bit of time asserting that the military’s sexual assault prevention and response programs have tainted military court-martial panels.  Ms. Brady also argues that prosecutorial discretion needs to be taken from the Department of Defense in order to counterbalance certain aspects of the military justice system which she views as being inherently unfavorable to the accused, such as the fact that verdicts are not required to be unanimous, the lack of dedicated defense investigators, the lack of dedicated funding for the defense function, defense counsel’s inability to obtain equal access to documents and witnesses before referral, and the fact that the defense is not permitted to interview victims without having a government-appointed lawyer (either the prosecutor or a victim’s counsel) present.  Neither Mr. Rustico nor Ms. Brady address the sweeping changes which were recently signed into law through the Military Justice Act of 2016, which was this blog’s #1 Military Justice Story of 2016.

The question of whether commanders should retain their prosecutorial discretion, and if not, then where that responsibility should fall, has been a topic of discussion for several years now, on this blog and elsewhere:

• Spilman, Zachary D, Blame all the lawyers [Commentary], Baltimore Sun (March 31, 2014).
• Blog post: “Thinking Slow About Sexual Assault in the Military”
• Blog post: Opposing views on civilianizing military justice
• Blog post: Scholarship Saturday – Professor Schlueter responds to the siren songs for reform
• Blog post: Scholarship Saturday – The plight of the accused