Thanks to all of our readers for your contributions and suggestions for the Top Ten Military Justice Stories of 2012. You are our first honorable mention; in particular, your more than 3,000 comments over the past year. They enlightened our discussions of military justice and provided essential context, background, debate, and humor. Thank you. With any luck, continued technological improvements to our blog will give you a louder voice in the future.
The next honorable mention is to our guest contributors this year: Lieutenant Colonel Chris Kennebeck, USA, and Lieutenant Mike Hanzel, USN. LTC Kennebeck brought us inside the Joint Service Committee on Military Justice in a three-part series (part 1, part 2, part 3) that is required reading for any military practitioner. LT Hanzel covered the oral argument before CAAF in United States v. Ali, a case that is now the subject of a petition for a writ of certiorari. Thank you gentlemen for your contributions. We look forward to bringing more new voices in the coming year.
Another honorable mention goes to the reorganization of the Marine Corps legal community. On September 29, 2011, the Marine Corps created the Defense Services Organization, in part to “ensure compliance with appellate court decisions concerning assignment of defense counsel and resolve longstanding issues regarding the provision of defense services” (MARADMIN 571/11). Effective no later than one year plus two days later, the Corps reorganized everything else. MARADMIN 416/12 announced wholesale change:
Over the past 20 years, and more acutely in this past decade of war, the legal support mission has evolved in scope, intensity, and complexity. There are now two distinct and competing legal support missions: a garrison mission to process increasingly litigious, contested and scrutinized courts-martial and an operational mission to provide real-time, decentralized command legal advice to battlefield commanders. As reflected in references a through d, to more effectively accomplish both of these vitally important missions, the Commandant directed a reorganization of Marine Corps legal support to provide for greater levels of individual proficiency, organizational efficiency, and institutional accountability.
The months since then have been called “building an airplane while flying it.” The results are still to be determined.
Finally, an honorable mention goes to elements, terminal and otherwise. Last year, CAAF’s decision in United States v. Fosler was #2 on our top ten. But since a divided CAAF found in Fosler that an adultery specification that did not allege a terminal element failed to state an offense, the court also found in United States v. Ballan that an accused may plead guilty to such a “defective” specification, and found in United States v. Humphries that the failure to object to such a defect in a contested case does not prevent appellate relief.
And then the NMCCA found that an accused can plead guilty to a defective Article 107 specification. It also found that the government need not prove that a federal statute exists for an accused to be found guilty of an Article 134(3) offense of violating the federal statute. Finally, the AFCCA declined to apply Fosler/Humphries retroactively. And so Fosler withers on the vine: “a case with a very short lifespan.”
As for the rest of the list, we’ve been debating offline the true top ten military justice stories of 2012. A group of lawyers rarely agrees on anything, and much fell to the cutting-room floor. Of the most significant stories, competition was fierce. The debate raged. Things were said. Feelings were hurt. Intoxicating liquors were consumed. But there is time for healing in the new year; now we will count down to the #1 story. Stay tuned.