C-SPAN video of the DAC-IPAD video from February 14, 2020, is available at the following links:

Part 1

Part 2

The main event during the meeting was a panel of retired military judges providing their perspectives (and answering questions) about military sexual assault cases, including conviction and acquittal rates.

Some (of many) interesting parts include this moment when Colonel Glass discussed the relative inexperience of military prosecutors, this moment when Colonel Moore discussed the virtues of generalization within the judge advocate communities, and this public comment by the alleged victim in the Grazioplene case.

CAAF’s 2020 Continuing Legal Education and Training Program will occur on March 11-12 at the American University Washington College of Law. The registration form is available here.

The schedule of events is available here and includes the following lectures:

Wednesday, March 11, 2020

8:00 a.m. Bolsheviks, Polar Bears, and Military Law: Judge Advocates in Russia in World War I
Frederic L. Borch, III
U.S. Army Judge Advocate General’s Corps, Regimental Historian and Archivist, The Judge Advocate General’s Legal Center and School; Colonel, U.S. Army, Judge Advocate General’s Corps (Retired)

9:15 a.m. Not Bergdahl but Bergdoll: The Court‐Martial of an Infamous Deserter; and Can a Leopard Change Its Spots? The Court‐Martial of Captain Jeffrey Zander‐‐and More
Frederic Borch

10:30 a.m. Unlawful Command Influence, Recent Changes to Article 37
Lieutenant Colonel Rebecca L. Farrell
U.S. Army Judge Advocate General’s Corps
Chair, Criminal Law Department, The Judge Advocate General’s Legal Center and School

1:00 p.m. Rethinking Feres: Granting Access to Justice for Service Members
Andrew Popper
Ann Loeb Bronfman Distinguished Professor of Law and Government, American University Washington College of Law

2:15 p.m. U.S. Court of Appeals for Veterans Claims Updates
Invited: CAVC Judge
U.S. Court of Appeals for Veterans Claims

3:30 p.m. Developments Concerning Sex Offender Registration
Elizabeth L. “Liz” Lippy
Associate Director of the Trial Advocacy Program, American University Washington College of Law

Thursday, March 12, 2020

8:00 a.m. The Coming Transformation of the Delivery of Legal Services
Thomas D. Morgan
Oppenheim Professor of Antitrust and Trade Regulation Law Emeritus, The George Washington University

9:15 a.m. The Court‐Martial of Paul Revere
Michael M. Greenburg, Attorney at Law, Law Office of Michael M. Greenburg, P.C.

10:30 a.m. Standing up the U.S. Space Force and Legal Issues in Space
Thomas E. Ayers
General Counsel of the U.S. Department of the Air Force; Major General, U.S. Army Judge Advocate General’s Corps (Retired)

1:00 p.m. The Air Force Special Victim’s Counsel Program at Five Years
Invited: Colonel Jennifer A. “Jenn” Clay
U.S. Air Force Judge Advocate General’s Corps; Chief, Air Force Legal Operations Agency, Special Victim’s Counsel Division

2:15 p.m. Ethics‐Ethical Considerations: Electronic Communications and the Use of Social Media
Martin Mitchell
Commissioner to the Honorable Judge Kevin A. Ohlson, U.S. Court of Appeals for the Armed Forces; Colonel, U.S. Air Force, Judge Advocate General’s Corps (Retired)

3:30 p.m. Ethics‐Personal Relationships within Ethical Standards
Martin Mitchell

This week at SCOTUS: The Solicitor General filed this brief in opposition to the cert. petition in Voorhees, and this brief in opposition to the cert. petition in McDonald. The respondents (servicemembers) in Briggs filed their merits brief (available here), and the Court also received amicus briefs in support of the respondents from the Army Appellate Defense Division (available here), and the National Association of Criminal Defense Lawyers (available here). Finally the Solicitor General waived the right to respond to the cert. petition in Kelly.

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

This week at CAAF: The next scheduled oral arguments at CAAF are on March 16, 2020

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

This week at the AFCCA: The Air Force CCA will hear oral argument in United States v. Garcia, No. 2019-07, on Wednesday, February 26, 2020, at 3 p.m. No additional information is available on the CCA’s website.

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

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on March 25, 2020.

Last year the Army Lawyer published The Special Victim Counsel Program at Five Years: An Overview of Its Origins and Development, by Colonel Louis P. Yob, the program manager for the Army’s Special Victims Counsel (SVC) Program. The piece is available here.

Colonel Yob tracks the development of the SVC program from the release of the uninformed, dishonest, or both movie The Invisible War in 2012, to CAAF’s decision in LRM v. Kastenberg, 72 M.J. 364 (C.A.A.F. 2013) (CAAFlog case page), and the enactment of 10 U.S.C. § 1044e in 2013.

The Army established the SVC Program Manager (PM) and Program Manager’s Office (PMO), led by an active duty Colonel (O-6) and staffed by a mix of active and reserve personnel. The PM determined “that each SVC should carry no more than twenty-five clients at a given time,” and so requested authorization for 48 SVC positions. 47 such positions were ultimately approved and created. Yet SVC attorneys faced initial resistance from other participants in the military justice process. Specifically:

many trial counsel expressed concern that the attorney-client relationship of the SVC and the victim impaired a trial counsel’s ability to build his or her own relationship with a victim. Many defense counsel viewed SVCs as yet another government attorney to oppose them. Some trial judges initially limited the role of SVCs and scheduled trial dates without regard to SVC availability. Also, Criminal Investigation Command (CID) investigators did not appreciate reduced access to victims for immediate questioning, or having limitations on victim interviews due to objections raised on behalf of the victim by their SVC. This sometimes led to acrimony between CID offices and SVCs, which included a number of complaints being lodged by both sides against the other for perceived wrongs.

Read more »

Audio of the recent oral argument at the Air Force CCA in United States v. Painter, No. 39646, on February 5, 2020, at the George Washington University Law School, is available on the CCA’s website (here) and on the CAAFlog oral argument audio podcast.

 

Significant military justice event this week: The Joint Service Committee on Military Justice will hold a public meeting on Wednesday, February 19, 2020, at 10:00 a.m., at CAAF, about the proposed changes to the Manual for Courts-Martial for 2020 (discussed here).

This week at SCOTUS: A new military cert. petition was filed in Kelly v. United States, No. 19-1011. The petition is available here. In 2018, CAAF held that a CCA has the authority to disapprove a mandatory minimum punitive discharge, reversing a published, en banc decision of the Army CCA. On remand, however, in a second published, en banc decision, the CCA refused to consider any issue beyond the appropriateness of the discharge, concluding in part that CAAF “retained jurisdiction over the case.” 78 M.J. 638, 640 (A. Ct. Crim. App. 2018). CAAF, however, denied a petition for further review and took no further action in the case. The question presented by the petition is:

Whether a military Court of Criminal Appeals must review the results of a court-martial anew when the court previously reviewed the case but its judgment was set aside.

Disclosure: I represent the petitioner in my personal capacity and am counsel of record on the petition.

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

This week at CAAF: The next scheduled date for oral argument at CAAF is March 16, 2020, however no arguments are posted on the court’s public calendar.

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

This week at the AFCCA: The Air Force CCA will hear oral argument in United States v. Hernandez, No. 39606, on Thursday, February 20, 2020, at 2 p.m., at Liberty University School of Law, 1971 University Boulevard, Lynchburg, VA 24515. No additional information is available on the CCA’s website.

This week at the CGCCA: The Coast Guard CCA’s website 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 Wednesday, February 19, 2020, at 10 a.m.:

United States v. Sandoval, No. 2021800355

Issues:
I. Did the military judge err when he instructed the members they could use charged offenses to defeat BM1 Sandoval’s entrapment defense on other charges?

II. Is Specification 1 of Charge II, alleging attempted inducement of a minor, legally sufficient?

The military justice system’s unique features call for military judges to take a different approach than their civilian counterparts by affirmatively instructing court-martial panels about their authority to “nullify” a conviction even when the government has met its burden of proof.

So begins an article published last year in Volume 80 of the Air Force Law Review by Colonel Jeremy S. Weber titled Court-Martial Nullification: Why Military Justice Needs A “Conscience of the Commander.”

Describing jury nullification as “float[ing] in a sort of legal purgatory in modern civilian criminal justice, neither encouraged nor outright discouraged,” 80 A.F. L. Rev. at 12, Colonel Weber tackles CAAF’s precedent that “a court-martial panel does not have the right to nullify the lawful instructions of a military judge,” 80 A.F. L. Rev. at 21 (quoting United States v. Hardy, 46 M.J. 67, 75 (C.A.A.F. 1997)). But that precedent “did not address whether it would be error to provide [a nullification] instruction, or whether defense counsel may argue for the members to engage in nullification. Those questions were left for another day.” 80 A.F. L. Rev. at 22.

Perhaps that day has come.

Read more »

Fourteen years ago, in United States v. Miller, CAAF announced a prospective rule that “defense counsel should inform an accused prior to trial as to any charged offense listed on the DoD Instr. 1325.7 Enclosure 27: Listing Of Offenses Requiring Sex Offender Processing.” 63 M.J. 452, 459 (C.A.A.F. 2006). Seven years later, in United States v. Riley, 72 M.J. 115 (C.A.A.F. 2013) (CAAFlog case page), CAAF held that a military judge’s failure to ensure that an accused understands the sex offender registration consequences of a guilty plea will require reversal of the plea. Since then, military judges routinely ask whether the accused is aware of the possibility of sex offender registration during a guilty plea when registration is a possibility.

Such registration can be hard to avoid, as states have their own requirements in addition to the federal Sex Offender Registration and Notification Act (SORNA), 34 U.S.C. § 20901 et seq., which requires a comprehensive sex offender registration system at the state level “to avoid the reduction of Federal funding.” 34 U.S.C. § 20927(d). See also United States v. Richardson, 754 F.3d 1143, 1146 (9th Cir. 2014) (affirming SORNA as a valid exercise of Congress’ spending power). Moreover, the requirements can change, and the changes can apply retroactively. The Solicitor General has even argued that sex offender registration could be required for former servicemembers without a conviction.

A recent unpublished, per curiam decision by a three-judge panel of the Navy-Marine Corps CCA in United States v. Fink, No. 201800250 (N-M. Ct. Crim. App. Feb. 6, 2020) (link to slip op.), reveals how registration can be hard to avoid while finding that a defense counsel (who is not identified in any way) was not ineffective for providing sex offender registration advice that the appellant claims was wrong.

Read more »

CAAF decided the Air Force case of United States v. Muller, __ M.J. __, No. 19-0230/AF (CAAFlog case page) (link to slip op.), on February 12, 2020. A majority of the court reverses the decision of the Air Force CCA and remands the case for a new Article 66(c) review because CAAF can’t determine if the Air Force court applied an invalid rule of practice and procedure to deny a motion to file supplemental assignments of error.

The decision is per curiam, however Judge Maggs dissents and writes separately.

Airman First Class (E-3) Muller pleaded guilty to three specifications of violating Article 112a, and was sentenced to confinement for nine months, reduction to E-1, and a bad-conduct discharge. The convening authority approved the sentence as adjudged, and Muller’s detailed appellate defense counsel submitted the case to the Air Force CCA without any assignments of error. The CCA, however, found a problem: prosecution exhibit 7 (an enlisted performance report) was missing from the record of trial. The CCA ordered the Government Division to show cause why the CCA should not return the record to the convening authority for correction, and the Government Division responded by offering a document (purporting to be the missing exhibit) for attachment to the record. The CCA rejected the document and ordered the record returned to the convening authority for correction.

Eventually the case returned to the CCA. Muller’s appellate defense counsel then filed a brief raising two assignments of error; one claiming unlawful command influence during the remand and the other asserting unreasonable post-trial delay. The Air Force CCA rejected the brief and summarily affirmed the findings and sentence, and then it denied Muller’s request for reconsideration. The CCA’s rejection of the brief might have been because of Rule 15.5 of the Air Force CCA’s Rules of Practice and Procedure (2017), which required a motion to file a supplemental pleading within 10 calendar days of the return of a case after a remand. That rule (which is not in the current version of the Air Force CCA’s rules) conflicted with the Joint Rules of Appellate Procedure (required by Article 66(f) (pre-2019; now Article 66(h)), which allowed 60 days for such a filing.

CAAF then granted review of three issues:

I. Whether rule 15.5 of the Air Force Court of Criminal Appeals Rules of Practice and Procedure is invalid because it conflicts with the Uniform Code of Military Justice, this Court’s precedent, the Joint Courts of Criminal Appeals Rules of Practice and Procedure, the recently updated Joint Rules of Appellate Procedure, and the prior and current appellate rules of the other service Courts of Criminal Appeals.

II. Whether the Air Force Court of Criminal Appeals deprived Appellant of his due process right to raise issues on appeal when it denied his timely request to file a supplemental brief on issues arising during remand proceedings.

III. Whether a Court of Criminal Appeals must require certificates of correction to be accomplished, vice accepting documents via a motion to attach, when it finds a record of trial to be incomplete due to a missing exhibit.

CAAF decides only the first issue, holding that the CCA’s rule – with its 10-day deadline – is invalid “insofar as it contradicts the Joint Rules.” Slip op. at 4. Furthermore, because the CCA summarily rejected Muller’s supplemental brief, CAAF “cannot determine whether the denial was based on the invalid Air Force Rule 15.5, or some other valid basis.” Slip op. at 5. CAAF therefore remands the case for a new review by the CCA, mooting the second (due process) issue and not addressing the third (record correction) issue.

But Judge Maggs dissents because he believes that a remand is unnecessary based on the fact that Muller’s supplemental pleading was filed within the 10-day time limit, and so “the validity of AFCCA Rule 15.5 does not matter in this case.” Diss. op. at 1. Because of that, Judge Maggs also considers the second granted issue. He finds that neither of the errors asserted in Muller’s supplemental pleading had merit, and so there was no prejudice even if it was wrong for the CCA to reject the brief. Finally, based on the positions of the parties, Judge Maggs does not address the third granted issue.

Case Links:
AFCCA opinion
Blog post: CAAF grants review
Appellant’s brief
Appellee’s (Gov’t Div.) brief
Appellant’s reply brief
Amicus brief: Navy-Marine Corps Appellate Defense in support of Appellant
Blog post: Argument preview
• Oral argument audio (wma)(mp3)
CAAF opinion
Blog post: Opinion analysis

CAAF decided the Army case of United States v. Davis, __ M.J. __, No. 19-0104/AR (CAAFlog case page) (link to slip op.), on February 12, 2020. After granting reconsideration in order to consider whether the Supreme Court’s decision in United States v. Rehaif, 139 S. Ct. 2191, 2196 (2019), affects the meaning of the word knowingly in the offense of indecent recording in violation of Article 120c(a)(2), CAAF does not actually answer that question. Rather, the court finds that the issue was waived when the defense did not object to the military judge’s instructions at trial.

Chief Judge Stucky writes for a unanimous court. Judge Maggs also writes a separate concurring opinion.

The granted issue asked:

Whether the mens rea of “knowingly” applies to the consent element of Article 120c(a)(2), Uniform Code of Military Justice, 10 U.S.C. § 920c(2) (2016).

A general court-martial composed of officer members convicted Private (E-2) Davis of indecent recording in violation of Article 120c(a)(2) for videorecording part of a sexual encounter involving himself and two other soldiers. Indecent recording occurs when a person “knowingly photographs, videotapes, films, or records by any means the private area of another person, without that other person’s consent and under circumstances in which that other person has a reasonable expectation of privacy.” 10 U.S.C. § 920c(a)(2). The question CAAF granted review to decide is whether the word knowingly applies to the consent element. In other words, whether the prosecution had to prove that Davis actually knew that the person recorded did not consent to the recording.

The military judge did not instruct the members that the prosecution had to prove actual knowledge, and Davis’ defense counsel did not object to the instructions when the military judge asked if there was any objection (a routine question found in paragraphs 2-5-8 and 2-5-14 of the Military Judge’s Benchbook). CAAF has consistently treated such a failure to object as – at most – merely forfeiting any objection to the instructions (making it harder to win on appeal) rather than waiving the issue (meaning that there is no error to correct on appeal). See, e.g., United States v. Haverty, 76 M.J. 199, 208 (C.A.A.F. 2017) (CAAFlog case page) (citing United States v. Payne, 73 M.J. 19, 22-23 (C.A.A.F. 2014) (CAAFlog case page) (citing United States v. Tunstall, 72 M.J. 191, 193 (C.A.A.F. 2013) (CAAFlog case page) (citing United States v. Wilkins, 71 M.J. 410, 412 (C.A.A.F. 2012) (CAAFlog case page) (citing United States v. Arriaga, 70 M.J. 51, 54 (C.A.A.F. 2011))))).

Such treatment was in accordance with the Rules for Courts-Martial, which stated:

Failure to object to an instruction or to omission of an instruction before the members close to deliberate constitutes waiver of the objection in the absence of plain error.

R.C.M. 920(f), Manual for Courts-Martial (2016 ed.) (emphasis added). Plain error is the standard for forfeited error, and CAAF acknowledges that the reference to plain error in the rule made it a forfeiture rule and not a waiver rule (despite the rule’s use of the word waiver). See United States v. Davis, 76 M.J. 224, 227 n.1 (C.A.A.F. 2017) (CAAFlog case page) (R.C.M. 920(f) uses the word ‘waiver,’ but it is clearly referring to ‘forfeiture.'”). But if there were any doubt that the rule applies forfeiture and not waiver, the President made it clear in the 2019 edition of the Manual:

(f) Forfeiture and objections. Failure to object to an instruction or to omission of an instruction before the members close to deliberate forfeits the objection. The parties shall be given the opportunity to be heard on any objection to or request for instructions outside the presence of the members. When a party objects to an instruction, the military judge may require the party objecting to specify in what respect the instructions given were improper.

R.C.M. 920(f), Manual for Courts-Martial (2019 ed.) (emphasis added). CAAF’s precedent actually goes quite a bit further, explaining that instructions on the elements of the offense (like the mens rea issue presented in this case) are required instructions, and that they are not waived by a failure to object. Davis, 76 M.J. at 225. That is so because:

R.C.M. 920(e) lists “Required instructions” on findings, meaning instructions that “shall” be given. This list of required instructions includes the elements of the offense . . . Relatedly, Article 51(c), UCMJ, requires that members be instructed, inter alia, “as to the elements of the offense.” 10 U.S.C. § 851(c) (2012).

Davis, 76 M.J. at 228.

Nevertheless, Chief Judge Stucky’s opinion for the unanimous CAAF abandons all of that precedent (without a single mention of stare decisis or the court’s own test for whether precedent should be abandoned) and undermines the President’s new rule (without even acknowledging it) by declaring that:

By “expressly and unequivocally acquiescing” to the military judge’s instructions, Appellant waived all objections to the instructions, including in regards to the elements of the offense. As Appellant has affirmatively waived any objection to the military judge’s findings instructions, there is nothing left for us to correct on appeal.

Slip op. at 5 (citations omitted). It’s a breathtaking conclusion not just because of the court’s lackadaisical approach, but also because it invites claims of ineffective assistance of counsel in future cases in an effort to “escape rules of waiver and forfeiture and raise issues not presented at trial.” Harrington v. Richter, 562 U.S. 86, 105 (2011).

Read more »

Two weeks ago, in this post, I discussed the Army CCA’s published, unanimous, en banc opinion in United States v. Springer, __ M.J. __, No. 20170662. Reviewing misconduct by the military judge (identified in the opinion as Lieutenant Colonel Richard Henry), the CCA held that such “misconduct with the spouse of a party to the case during trial erodes public confidence in the judiciary and the military justice system.” Slip op. at 7. I also noted that the case was one of a number raising the same issue of judicial disqualification.

Last week the CCA addressed a second such case, but reached a very different conclusion. With a published opinion in United States v. Anderson, __ M.J. __, No. 20170158 (A. Ct. Crim. App. Feb. 5, 2020) (link to slip op.), a three-judge panel of the CCA concludes that the military judge was not disqualified because the judge-advocate husband of the woman with whom the judge committed the misconduct was not otherwise involved in the case, and it also concludes that even if the military judge was disqualified it does not “risk undermining the public’s confidence in the judicial process.” Slip op. at 2.

Judge Schasberger – who wrote the opinion in Springer – writes for the panel.

Read more »

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

United States v. Clark, No. 19-0411/AR (CAAFlog case page): Oral argument audio (wma)(mp3)

United States v. Carter, No. 19-0382/AR (CAAFlog case page): Oral argument audio (wma)(mp3)

The audio is also available on our oral argument audio podcast.

In advance of a public meeting scheduled for next Wednesday, February 19, 2020, at CAAF, the Joint Service Committee has published these proposed changes to the Manual for Courts-Martial (2019 ed.).

From my initial review, the most significant proposals (with strikeout representing deleted language and underline representing new language) are:

1. Causing all guilty pleas (except for conditional pleas) to waive all waivable motions. Historically, a plea of guilty waived only objections related to the factual issue of guilt. As a result, pretrial agreements (first in the Air Force, then in other services) began to include a provision stating that the agreement waived all waivable motions, and CAAF began enforcing the term in United States v. Gladue, 67 M.J. 311 (C.A.A.F. 2009). The JSC now proposes to make it an inherent part of a plea, with the following modification to R.C.M. 910(j):

(j) Waiver. Except as provided in paragraph (a)(2) of this rule, a plea of guilty which results in a finding of guilty waives any objection, whether or not previously raised, insofar as the objection relates to the factual issue of guilt of the offense(s) to which the plea was made any non-jurisdictional defect that occurred prior to the plea.

2. Adding a good-faith provision for lost statements under R.C.M. 914. That rule requires production of a witness’s prior statements after the witness testifies on direct examination, and it is the subject of today’s oral argument in United States v. Clark, No. 19-0411/AR (CAAFlog case page). CAAF considered a judicially-created good faith exception for the Jencks Act, 18 U.S.C. § 3500, (which R.C.M. 914 mirrors) in United States v. Muwwakkil, 74 M.J. 187 (C.A.A.F. 2015) (CAAFlog case page). The JSC proposes to add such an exception into the text of the military rule, with a new subparagraph (e)(2):

(2) Failure to comply in good faith. In the event that the other party cannot comply with this rule because the statement is lost, and can prove, by a preponderance of evidence, that the loss of the witness statement under subsections (a), (b), and (c) of this rule was not attributable to bad faith or gross negligence, the military judge may exercise the sanctions set forth in subsection(e)(l) of this rule if-

(A) evidence is of such central importance to an issue that it is essential to a fair trial,

(B) there is no adequate substitute for such evidence.

3. Allowing special courts-martial to sentence officers to confinement. The Manual for Courts-Martial has long permitted only a general court-martial to sentence an officer to confinement. The current limitation is found in R.C.M. 1003(c)(2)(ii) (“Only a general court-martial may sentence a commissioned or warrant officer or a cadet, or midshipman to confinement.”), while ¶ 126d of the 1951 Manual permitted an officer to be confined only if also sentenced to a dismissal (a sentence that only a general court-martial could adjudge). The JSC proposes to delete the limitation from the MCM.

4. Codification of Perkins and further expansion of the good faith exception for an invalid warrant or search authorization. Mil. R. Evid. 311 codifies the judicially-created good faith exception to the requirement for a search warrant (or authorization, under the UCMJ), where three conditions are met: (1) the warrant/authorization must have been issued by competent authority; (2) the person who issued it must have had a substantial basis to find probable cause for its issuance; and (3) the officials seeking and executing it must have reasonably and with good faith (under an objective standard) relied on it. CAAF rejected a plain-language reading of the second condition in United States v. Perkins, 78 M.J. 381 (C.A.A.F. Apr. 23, 2019) (CAAFlog case page), the #8 Military Justice Story of 2019, and applied the rule in a way that allows searches lacking probable cause in all but the most egregious circumstances. The JSC now proposes to codify CAAF’s decision with respect to the second condition, and to permit even more unlawful searches by relaxing the first condition, with the following additions to Mil. R. Evid. 311(c)(3)(A) and (B):

“(3) Good Faith Exception of a Warrant or Search Authorization: Evidence that was obtained as a result of an unlawful search or seizure may be used if:

(A) the search or seizure resulted from an authorization to search, seize, or apprehend issued by an individual competent to issue the authorization under Mil. R. Evid. 315(d) or from a search warrant or arrest warrant issued by competent civilian authority, or the officials seeking and executing the authorization or warrant reasonably and with good faith believed the individual was competent to issue the authorization or warrant;

(B) the officials seeking and executing the authorization or warrant reasonably and with good faith believed that the individual issuing the authorization or warrant had a substantial basis for determining the existence of probable cause; and

(C) the officials seeking and executing the authorization or warrant reasonably and with good faith relied on the issuance of the authorization or warrant. Good faith is to be determined using an objective standard.

5. Adding a new listed Article 134 offense of Sexual Harassment as ¶ 108, Part IV, MCM. While the services have effectively used Article 92 (orders violation) to prosecute incidents of sexual harassment (see United States v. Rosario, 76 M.J. 114 (C.A.A.F. Feb. 22, 2017) (CAAFlog case page); United States v. Goodman, 70 M.J. 396 (C.A.A.F. 2011) (CAAFlog case page)), and have even used Article 93 (maltreatment) in egregious cases (see United States v. Caldwell, 75 M.J. 276 (C.A.A.F. May 16, 2016) (CAAFlog case page)), the JSC proposes to add sexual harassment as a listed offense under Article 134, with the following elements:

(1) That the accused knowingly made sexual advances, demands or requests for sexual favors, or engaged in other conduct of a sexual nature;

(2) That such conduct was unwelcome;

(3) That under the circumstances, such conduct:

(a) Would cause a reasonable person to believe, and a certain person does believe, that submission to such conduct would be made, either explicitly or implicitly, a term or condition of a person’s job, pay, career, benefits or entitlements;

(b) Would cause a reasonable person to believe, and a certain person does believe, that submission to, or rejection of, such conduct would be used as a basis for career or employment decisions affecting that person; or

(c) Was so severe, repetitive, or pervasive that a reasonable person would perceive, and a certain person does perceive, an intimidating, hostile, or offensive working environment.

and

(4) That, under the circumstances, the conduct of the accused was either: (i) to the prejudice of good order and discipline in the armed forces: (ii) was of a nature to bring discredit upon the armed forces: or (iii) to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces.

Significant military justice event this week: The Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces (DAC-IPAD) will hold a public meeting this Friday, February 14, 2020, from 9:00 a.m. to 3:30 p.m., at the Westin Arlington Gateway Hotel, 801 N Glebe Road, Arlington, VA 22203 Arlington, Virginia. Additional details about the meeting are available here and the agenda is available here.

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 will hear oral argument in two cases this week, both on Tuesday, February 11, 2020:

At 9:30 a.m.:

United States v. Clark, No. 19-0411/AR (CAAFlog case page)

Issues:
I. Did the military judge err in applying R.C.M. 914?

II. If the military judge erred, under what standard should this Court assess prejudice?

III. Was there prejudice under the applicable standard of review?

Case Links:
ACCA opinion
Blog post: CAAF grants review
Appellant’s brief
Appellee’s (Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview

Followed by:

United States v. Carter, No. 19-0382/AR (CAAFlog case page)

Issues:
I. Whether trial defense counsel were ineffective for failing to introduce exculpatory evidence in their possession.

II. Whether the military judge abused his discretion by failing to order a mistrial for the charges and specifications.

III. Whether the military judge committed plain error by admitting evidence of historical cell-site location information. See Carpenter v. United States, 138 S. Ct. 2206 (2018).

Case Links:
ACCA opinion
Blog post: CAAF grants review
Appellant’s brief
Appellee’s (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 case this week, on Thursday, February 13, 2020, at noon at the University of Texas at Austin:

United States v. McPherson, No. 20180214

Issue: Whether the statute of limitations expired for the Specifications of Charge I.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on February 20, 2020.

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

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on February 19, 2020.

CAAF will hear oral argument in the Army case of United States v. Carter, No. 19-0382/AR (CAAFlog case page), on Tuesday, February 11, 2020, after the argument in Clark. The court granted review of three discrete issues involving some unusual facts:

I. Whether trial defense counsel were ineffective for failing to introduce exculpatory evidence in their possession.

II. Whether the military judge abused his discretion by failing to order a mistrial for the charges and specifications.

III. Whether the military judge committed plain error by admitting evidence of historical cell-site location information. See Carpenter v. United States, 138 S. Ct. 2206 (2018).

Private First Class (E-3) Carter was convicted of numerous offenses by a general court-martial composed of members with enlisted representation, and sentenced to confinement for eight years and a dishonorable discharge. The convictions relate to Carter’s alleged lewd communications with underage females using the KIK messaging application and the pseudonym Julio Carter. But Carter’s brother (who was not in the military) testified telephonically during an Article 32 preliminary hearing that he – and not the appellant – was the one who sent the messages. After that, however, the brother:

ceased communicating with the parties. (JA658). As a result, the day before trial, the defense requested the military judge find [the brother] to be unavailable under Mil. R. Evid. 804(a), in order to introduce his Article 32 sworn prior testimony during trial. (JA055). The military judge granted the motion and ruled the evidence admissible. (JA055).

App. Br. at 7. Then, during opening statements at trial, Carter’s defense counsel told the members that Carter’s brother was the actual wrongdoer, and the defense promised to play the Article 32 testimony for the members:

This case is about someone else, who is not here today. Who, you will hear accepted responsibility for these actions. You will hear testimony that at the preliminary hearing the accused’s brother stated under oath, subject to a penalty of perjury, fully aware that he could be prosecuted in federal court for his crimes and said that his brother is completely innocent of these charges, that he assumed the identity of his brother to meet women. While enjoying the hospitality of his brother who let him stay with him throughout the summer of 2015. That is what this case is about.

App. Br. at 7-8 (quoting record). But, despite the military judge’s ruling that he could present the testimony, and despite promising the members that he would do so, Carter’s military defense counsel did not introduce the brother’s Article 32 testimony.

That’s just one of many remarkable situations presented in this case that the Army CCA described as “involv[ing] mistaken identity, fraternal betrayal, technological mystery, and a healthy dose of bad luck.” United States v. Carter, No. 20160770, slip op. at 1 (A. Ct. Crim. App. Mar. 28, 2019) (link to slip op.).

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