This week at the Supremes:  The Supremes’ long conference on Tuesday will decide the fate of three military cert petitions:  Wuterich v. United States, 08-1133, Stephens v. United States, 08-1514, and the pro se IFP petition in Tatum v. United States, No. 09-5552.  The SG initially waived the United States’ right to respond to all three.  The Supremes never called for a response in either Stephens or Tatum, making it apparent that those petitions are not on the discuss list and will be denied.  The Supremes did call for a response in Wuterich.  [Familiar disclosure:  I’m counsel of record in both Wuterich and Stephens.]

This week at CAAF:  The oral argument stage is dark at CAAF this week.

This week at the CCAs:  None of the CCA oral argument calendars lists an oral argument for this month.

This week at the court-martial level:  As the No Man discussed here, the court-martial of Marine Sgt Jermaine Nelson will start on Tuesday at Camp Pendleton on charges arising from the Battle of Fallujah.  Sgt Nelson’s two alleged co-actors have been acquitted — Jose Nazario by a civilian federal jury in California and Sgt Ryan Weemer by a court-martial.

This week in military justice reports?: We previously noted that a Marine Corps Times article reported that Judge Cox has said the second Cox Commission “hopes to have its recommendations out by the end of September.”  William H. McMichael, Law panel to review private sex in military, Marine Corps Times, July 20, 2009, at 10.  We’re waiting with giddy anticipation to see if the commission’s report is released this week.

11 Responses to “This week in military justice — 27 September 2009 edition”

  1. Comrade Cossio says:

    This will be interesting. I believe I found the “Topics” for the report on NIMJ’s website:

    The topics are too numerous to list, but I’ll go through the Appellate Review Topics:

    A. Right of Appeal

    1. Should a convicted service member have the right to appeal any conviction by special and general courts-martial as a matter of right to the Courts of Criminal

    – Uhh, Yes. I’m kinda wondering what kind conviction should a service member have the right to Appeal. I think they are implying Guilty Pleas, the question is rather broad. I don’t have the stats but out of the cases that get “flipped” I’ve seen a decent amount of Guilty Pleas, usually the result of Complicated PTA’s.

    So I think there should be something said about reducing the Complexity of PTA’s, forfeitures being the plank of wood sticking out of the PTA’s Eye.

    2. Should the convicted service member be required to make an election to appeal his or her case within a day certain or should the appeal be automatic unless the
    member waives the appeal?

    I don’t see why this is an issue, can someone enlighten me? I have seen/herd were counsel couldn’t get ahold of their clients and vice-versa. Seems to me “automatic unless waived” will result in less headaches

    3. Should Art. 62, UCMJ, give the government the right to appeal to the Courts of Criminal Appeal and then either party have the right to appeal to the United States Court of Appeals for the Armed Forces the decision of the Court of Appeals?

    Wow. That would mean that the Government would have to abide by a trial judge’s ruling, in cases like mine where the CCA reverses a Trial Judge ruling, Criminals like myself go away scott-free.

    However, in the current system Article 62 Appeals still take a long time (even though they are given Priority). By that time witnesses have PCS’d and people really don’t care to take it to trial.

    4. Should 28 U.S.C. §1259, 10 U.S.C. 867a, be amended to allow any military member convicted of an offense by special or general court-martial to petition the Supreme Court for Review?

    I guees they mean direct review by passing CAAF or whatever. The answer is no. I certainly don’t want Mr. “your in the Army now” looking at my case. I’ll take my chances with CAAF.


    A big yes for the rest of the suggested topics:

    B. Jurisdiction

    a. Define rules and procedure for collateral attack.

    b. Define standards for Court to consider for collateral attack on conviction.

    c. Propose Rule for Courts-Martial dealing with collateral attacks.

    C. Processes and Administration

    1. Consider whether CAAF should rely on electronic records of trial. (Yes, we should enter the 1990’s)

    2. Consider one step briefing for appeals to CAAF.
    (I’m not sure what this entails, but it sounds good, kinda like Target’s one step shopping?)

    3. Consider whether CAAF should adopt the federal c
    ourt PACER system for filing.


    D. Restructure of System

    1. Abolish intermediate Courts of Criminal Appeals and replace with expanded Article III United States Court of Appeals for Armed Forces that will hear cases in panels of three judges (in a manner similar to federal Circuit Courts of Appeals).

    Yes. But then I would change my mind about title 28 § 1259

    2. Allow direct appeal to this newly structured court in all cases, with appeal elected by accused rather than mandatory.

    Yes, except in wierd cases were the accused was unable/wasn’t informed that he could appeal (this happens in State courts with incompetent judges, I never herd of it happen in a federal court)

    3. Allow Government appeals.

    Ahh man, do we have too?

    4. Adopt Federal Rules of Appellate Procedure.

    Sounds good.

    5. Allow petitions to Supreme Court in all cases, similar to the treatment of cases from the United States Courts of Appeals.

    Yes, if we get rid of CCA’s and just have a Super-CAAF.

  2. Comrade Cossio says:

    These Ideas I am less than stellar about:

    B. Military Judge

    1. Consider replacing ad hoc jurisdiction over persons charged with specific offenses with standing courts-martial defined by geographic region.

    Sounds dumb.

    3. Trial. Consider:

    a. Judge alone sentencing in all cases.

    No. No. No. Let’s then consider training a Parrot to say “Guilty” and “Punitive Discharge” since that is what we would get.

    b. Imposing sentencing guidelines.

    I think we all ready have cookie-cutter sentence guidelines for judges, most of them know what an offense “goes for”.

    c. Issuing subpoenas in the name of court-martial by court.

    Please do because civilian counsels have no idea what a military subpoena is.

    6. Give military judges clear contempt powers.

    Over civilians, that would be nice:

    US v. Quintanilla

    C. Staff Judge Advocate

    1. Consider role of SJA in investigative process.

    He should keep his big nose out of an investigation.

    2. Consider role of SJA in making recommendations to Convening Authority regarding prosecutorial decisions.

    “Sir, we gave this guy immunity, despite the fact that he commited more offenses than the Accused because we had our heads buried in the sand and realized we needed this guy’s testimony in the last second or he was going to plead the Fifth.

    3. Consider how SJA should supervise the prosecution function.

    Hiding in the Shadows, behind. Or do what LtCl. Anderson did at my Court-Martial and Lean over and whisper in the TC’s ear and pass notes like he was in first grade during witness testimony.

    D. Trial Counsel. Consider limits and powers of trial counsel.

    They should be limited.

    E. Defense Counsel

    1. Consider centralized funding for investigative services, expert witnesses and witness travel.

    That would be nice. The Defense really needs investigative services because god forbid the TC actually complies with discovery and gives the DC their witness’s rap sheet.

    2. Review training and tenure practices.


    3. Consider the applicability of the United States public defender model.

    No. No. No. Let’s not and say we did.

    F. Court Reporters

    1. Permit court reporters to certify record rather than Military Judge.

    I don’t know if this tedious task bogs down the Judges day.

    2. Encourage the use of an electronic record of trial.

    Please do, I have 22 volumes.

    3. Prepare record of trial only if case appealed.


    G. Court Martial Panels

    1. Transfer member selection to a Military Jury Office supervised by Chief Military Judge of the Court Martial District.

    Yes, Yes, and Yes. End Panel stacking !

    2. Eliminate court members in Special courts-martial (all Judge –alone trials).


    3. Provide for minimum of six members in any trial by court-martial with members.

    Sounds good and fair.

    4. Forbid service by members who are reported on by other members, absent military exigency.

    Common Sense, yes.

    5. Include civilians as potential members when accused is a civilian.

    Interesting, would you give the option to the accused, like an enlisted/officer panel for military members?

    H. Trial Court Arrangements

    1. Abolish summary courts-martial.

    No, no no. Increase Summary Court-Martials to 6 months !!!

    5. Require that government disclose all witnesses interviewed to the defense

    What, they weren’t doing that already??? Those sly dogs !!!

  3. Late Bloomer says:

    Hmmm…the standing courts-martial is an interesting idea. I think it might provide more stability which could perhaps lead to more legitimacy over time. That is definitely something we desperately need.

  4. Southern Defense Counsel says:


    Interesting that you are for limiting TC power, particularly given that right now it is very limited. In fact, they are often required to take a case to CM – even if they ethically believe that it shouldn’t be there – solely because the CA wants to “prove a point.” I would be in favor of giving more prosecutorial discretion. I’d rather have a lawyer deciding what cases should end up at CM and let a CA issue clemency later if the TC screwed up, than to allow the CA to decide whether an accused stands trial, and then after saying “You will stand trial” allowing the same CA to come back and grant clemency at their discretion and mercy(which will often result in persons exercising their right to trial by jury not receiving clemency).

    As for standing courts martial, I actually like the idea. I think it makes fiscal sense (less traveling CMs) and allows for differences based on the service culture you are in. Plus, as LB says, it could lead to more legitimacy over time.

  5. Comrade Cossio says:

    Your Point is well taken, although I’ve seen, at least in the Air Force “arm twisting” the Unit Commander by the SJA.

    My discussions have indicated that the branches have a different “culture” when it comes to what a TC can do.

    Well in the AF TC’s actually have less power over what goes to trial, its actually the SJA and Wing Supervision.

    Interesting, what frame work would you adopt? What powers would you give a TC (or SJA)?

  6. Southern Defense Counsel says:

    Honestly, I’d like to see a very independent trial services office that independently reviews cases from CID/NCIS and makes a determination on what goes to trial and what doesn’t. Fund them sufficiently to cover the costs of courts martial (which takes away the “You are going to spend X dollars of command money in taking this stinker to CM argument so often pitched by DC. A wise TC with their own budget would know what a case was worth and whether it should go or not) and then let the CAs act as oversight authority to grant clemency if appropriate. This would remove a ton of UCI issues as well. Of course, it turns the MJ system on its head a bit, but sometimes things need to be shaken up.

  7. Comrade Cossio says:

    I see what you are getting at now. And I believe other countries use the model you are refering too. They also use there country’s laws.

    I belive we should just do away with the punitive articles and just use title 18. We would have to update title 18 to include the military specific offenses like Adultry and Disobeying an order.

    While “turning it on its head” these changes would actually be rather quick to implement.

    Budgets help limit expensive cases that have no real justice related goal (i.e. political correctness, vindictiveness).

  8. Southern Defense Counsel says:

    To be clear I would not do away with the punitive articles (except 120). I would just give prosecutors more discretion in taking cases to CM. I also would hope that the budget would be less of an issue not more. If the prosecutors had their own money there would be less concern about taking money from “mission” to support a cm.

  9. Anonymous says:

    Look at the Canadian system…..

  10. Comrade Cossio says:

    Are we still talking about Military Justice or Health Care? Neither looks goos abroad.

  11. Late Bloomer says:

    Look at the Austraiian system…;P