The Hill reports here on the Senate’s final passage of the National Defense Authorization Act for Fiscal Year 2015. The complete text of the bill is available here.

The bill contains numerous provisions of interest to military justice practitioners (see Division A, Title V, Subtitle D). Here are the highlights:

  • Section 531 makes numerous “technical revisions and clarifications” to last year’s changes to the UCMJ, including:
    • Correcting technical language regarding a convening authority’s action on a “qualifying offense” (original text analyzed here);
    • Correcting the definition of a victim in the new Article 60(d) (original text analyzed here);
    • Adding language explicitly authorizing an accused’s waiver of an Article 32 preliminary inquiry (original text analyzed here);
    • Expanding the prohibition on defense counsel interviews of an alleged victim of a sex offense to include any “counsel for the accused” and to involve notification to any counsel for the alleged victim (original text analyzed here);
    • Adding the word “unlawful” into the new forcible sodomy/bestiality statute (Article 125) (original text analyzed here);
    • Clarification of the definition of prospective members of the armed forces for purposes of inappropriate and prohibited relationships;
    • Technical changes to the new Article 6b (original text analyzed here and here);
    • Making the new Article 32 effective on December 26, regardless of the date of the alleged offense (original text analyzed here);
    • Restoring a convening authority’s total discretion to act on the findings or sentence (except for offenses with a mandatory minimum) when a conviction involves offenses that occurred both before and after the effective date of the new Article 60(c) (original text analyzed here).
  • Section 532 enacts a new Article 49, permitting depositions only “if the party [seeking the deposition] demonstrates that, due to exceptional circumstances, it is in the interest of justice that the testimony of the prospective witness be taken and preserved…” This is likely a reaction to the McDowell case (last discussed here).
  • Section 535 enacts a new paragraph (e) in Article 6b that gives an alleged victim an explicit right to petition a CCA for a writ of mandamus to force compliance with M.R.E. 412 (the rape shield) and M.R.E. 513 (the psychotherapist-patient privilege). This is likely a reaction to the dissenting opinions in LRM v. Kastenberg, 72 M.J. 364 (C.A.A.F. 2013) (CAAFlog case page).
  • Section 536 limits the admissibility of good military character evidence, as follows:

SEC. 536. MODIFICATION OF MILITARY RULES OF EVIDENCE RELATING TO ADMISSIBILITY OF GENERAL MILITARY CHARACTER TOWARD PROBABILITY OF INNOCENCE.

(a) Modification Required- Not later than 180 days after the date of the enactment of this Act, Rule 404(a) of the Military Rules of Evidence shall be amended to provide that the general military character of an accused is not admissible for the purpose of showing the probability of innocence of the accused for an offense specified in subsection (b).

(b) Covered Offenses- Subsection (a) applies to the following offenses under chapter 47 of title 10, United States Code (the Uniform Code of Military Justice):

(1) An offense under sections 920 through 923a of such title (articles 120 through 123a).

(2) An offense under sections 925 through 927 of such title (articles 125 through 127).

(3) An offense under sections 929 through 932 of such title (articles 129 through 132).

(4) Any other offense under such chapter (the Uniform Code of Military Justice) in which evidence of the general military character of the accused is not relevant to an element of an offense for which the accused has been charged.

(5) An attempt to commit an offense or a conspiracy to commit an offense specified in a preceding paragraph as punishable under section 880 or 881 of such title (article 80 or 81).

I’ve written about this before and I will write about it again in the coming weeks.

  • Section 537 requires modification to M.R.E. 513 to eliminate the “constitutionally required” exception to the privilege (paragraph (d)(8)) and to increase the burden on a party seeking production or admission of privileged matters.
  • Section 541 gives the “chief prosecutor” of each Armed Force the power to force secretarial review of a convening authority’s decision to not refer a charged sex-related offense to trial.

44 Responses to “Military justice provisions in the FY15 NDAA”

  1. Brian Bouffard says:

    What an absolute cascade of partisan ridiculousness.  It’s too bad wrongfully accused people don’t have as effective a lobby as the self-styled victims do.

  2. stewie says:

    So if I read this right:
     
    1. No more old 32s. Ever. With the new 32s, you have to wonder why even have them as DC. (I exaggerate…slightly).
    2. No more using depos unless you are the government trying to preserve testimony for trial. (I exaggerate…very slightly).
    3. We will have two 513/412 hearings.  One just to get the judge to see any evidence like medical/mental records in camera.  One to actually rule on evidence seen.  So, if you are a moderately crazy person, go ahead and allege rape, your psychoses are safely hidden.
    4. We’ve now determined that you can statutorily eliminate complying with the Constitution.  Brilliant.  I’m serious, what law school did whomever put that in there go to? What effect do they think that’s going to have on the courts.  Sorry courts, I know there’s this Constitution-thing, but we’ve waived that here in this statute.
    5.  Good Soldier Defense.  RIP.

  3. DCGoneGalt says:

    More cases will go to trial without being tested and high-profile acquittals will increase.  The bull market for civilian defense attorneys is about to begin.
     

  4. stewie says:

    “The bull market for civilian defense attorneys is about to begin.”
     
    Just hold on a couple more years! :)

  5. Brian lc says:

    Stewie,  I quibble with point #3.  I don’t think we’ll have two 513 hearings.  When the moving party has to prove, with specific factual evidence, by a preponderance, that the mental health records contain admissible evidence (but without knowing their contents)…you don’t need a 2nd hearing (you don’t really need to do an in camera review) you’ve already proved the records are admissible.   This type of case surely exists, but I have never come across a case where the defense could prove admissibility of mental health records, without first seeing the records.  
    BUT, in case you thought that a high burden, you also need to show that you couldn’t obtain the “same or substantially similar information through non-privileged sources).  Seems like once you prove the records exist and contain admissible evidence, you probably have a means of proof outside of the records.  (i.e. by meeting the first prong, you disprove the second).  Perhaps there is daylight there….but not a lot.  I think MRE 513 is pretty much gone in all but the most extreme cases. 
    I would agree that it is silly to think they can eliminate constitutional compliance by statute, but to me that just implicates the silliness of putting the constitutional exception in the statute to begin with. The “constitutional exception” was always useless language.  Now, at least, its consistent with every other rule (which don’t have a specified conditional exception).
    Only mostly dead.  With depos, they allow a depo to preserve testimony for a 32.  Not sure what that means, but I don’t think its dead just yet.  Just mostly dead.
     
     

  6. The Silver Fox says:

    This news is really bad for guilty people.

  7. AF JAG says:

    @Stewie–On the depo issue, limiting the purpose of a deposition strictly to preserving evidence for trial is certainly a change in military practice, but it is commonplace under the Federal Rules of Criminal Procedure. 
     
    FCRP 15 has limited depositions in this way since its amendment in 1974 to permit both government and defense depositions, but only “because of exceptional circumstances and in the interests of justice.”  Also, the commentary to FCRP 15 makes clear that a party may depose only it’s own perspective witnesses:  “The principle objective is the preservation of evidence for use at trial.  It is not to provide a method of pretrial discovery nor primarily for the purpose of obtaining a basis for later cross examination of an adverse witness . . . Subdivision (a) also makes explicit that only the “testimony of a prospective witness of a party” can be taken.  This means the party’s own witness and does not authorize a discovery deposition of an adverse witness.”  Fed. R. Crim. Proced. 15, Advisory Committee Notes–1974 Amendment at 100 (emphasis added).  Limiting depositions solely to a party’s own witnesses is something that I didn’t see explicitly mentioned in the text of the new NDAA on this subject, but I guess it’s fair to say that courts will likely interpret it this way.
     
    Bottom line–I don’t have a problem with limiting depositions to what they’ve been for 40 years in the federal system:  a means for a party to preserve potentially “unavailable testimony” of its own witnesses for trial. 

  8. RKincaid3 (RK3PO) says:

    Well, it is dissappointing to see the the Congress’s wholesale assault on service members, and on JUSTICE, is continuing unabated.  And the shame is OURS…we have failed in our duties as citizens to send responsible people to represent us.
     
    We are indeed reaping, or are about to reap, individually, what we have collectively sown.  SHAME ON CONGRESS AND SHAME ON US FOR ALLOWING THIS.

  9. RKincaid3 (RK3PO) says:

    @ Silver Fox:  You are right.  Because we humans have never accused, tried and convicted an innocent person, ever.  
     
    I am not sure what is scarier…these changes or the fact that there are people out there who actually believe what you just posted and then pass laws based upon that falsehood.

  10. stewie says:

    Brian, I disagree. The rule does require two hearings.  First, you have to have a hearing just to get the evidence produced for in camera review (which is always going to be the case with mental/medical records).  Then the MJ reviews it, then we have a second hearing on any decision to release any of those records.  both hearings the alleged victim has a right to be notified of/heard on.
     
    AF JAG, we aren’t the civilian system.  We have all sorts of differences.  So citing one tiny portion where it would make us like the civilian system doesn’t say much in a vacuum.  The civilian system has juries, unanimous verdicts, etc.  When we keep however only using the civilian system when it takes away from a military accused’s rights but not using the parts where it would add to those rights, well, I have a problem with that.

  11. brian lc says:

    Stewie, I was being a little tongue in cheek.  Remember, under the new rule, you don’t even get an in camera review until you prove that an exception to 513 applies and the mental health records contain admissible evidence.  So, in order to get the in camera review, you must prove the results of the in camera review.  Good luck.  Especially since you must also show that you have no other means of introducing the evidence.   To me, if you prove (without the records) that the records contain admissible evidence for which an 513 exception applies, you’ve likely already proven that you can get the evidence through unprivileged means.  Perhaps not always, but often.
     
    If your point was that two hearings was inefficient, I might disagree.  I think the new rule will be very, very, efficient.
     

  12. Paco says:

    How does Congress eliminate anything that is “constitutionally required?”

  13. DCGoneGalt says:

    AF JAG and Stewie:  Stewie is right, there is a reason the military has additional procedural safeguards like the Article 32 process.  It is because the military does not utilize juries.  IMO, give a SPCM 7 members and a GCM 10 and make it 80% to convict and the Congress can enact all the changes they want.   

  14. AF JAG says:

    @Paco–I think Brian’s point is that the “constitutionally required” language is surplusage. 
     
    Either the Constitution potentially permits disclosure and admission of a witnesses’ mental health records because they contain some information essential to vindicating an accused’s 6th Amendment confrontation rights, or it  doesn’t–it’s applicability is not dependent upon a statutory acknowledgment that it exists.  Invoking the “constitutionally required” exception is akin to placing a proviso in every rule of admissibility that it’s admissible but subject to a MRE 403 balancing test–it’s already implied and therefore, unnecessary.
     
    I don’t seriously think that the Congress of the United States thinks they can, or intended to, over-ride the Constitution by statute.

  15. stewie says:

    Brian, ah, we are on the same page then.  Although, I think some judges at least will find a way to moderate this a bit.  They’ll find ways to meet the “standard” for in camera review, and then go on to mostly deny the information.  If they admit the information, they’ll have strong evidence supporting it, and they can boot-strap the fact that “they were right” to forestall any “how’d you know” arguments.
     
    But some judges will simply use it as an excuse to never look at an alleged victim’s records again (which is a feature, not a bug).

  16. AF JAG says:

    @DCGoneGalt and Stewie–Just a quick note on the “unanimity” or voting rules for court-martial panels.  While it’s absolutely correct that the UCMJ provides the government with the most favorable standard for conviction in the country (2/3 majority); it is also true that it provides the Accused with the most favorable acquittal standard in the country (1/3 +1).  In a word, we are the only jurisdiction that permits:  “minority acquittals” (i.e. acquittals where the majority of the panel would have found the accused guilty).
     
    While I understand reasonable minds can differ on this issue, I’ve often thought that this aspect of non-unanimous verdicts gets short shrift in the discussion.  I too was a defense counsel for 2 years earlier on in my career, and I’m reasonably certain that not all of my acquittals were unanimous.  So the non-unanimous verdict rule helped some of my clients walk who otherwise would have been looking at a hung jury and the likelihood of an administrative discharge by the government in lieu of court-martial–which would end my clients’ career.  Stated another way–the non-unanimity rule giveth, and it taketh away. 

  17. Zachary D Spilman says:

    Yours is a fair point AF JAG. But I think the reality of court-martial panel deliberations is that they’re more likely to end as a non-unanimous conviction than a non-unanimous acquittal. 

    For a real world example of how this works, consider my post from last year titled: Remembering that a court-martial panel is no jury.

  18. The Silver Fox says:

    Panels should be 5/6 for a guilty verdict.  Unanimous verdicts are not constitutionally required (see, e.g., Oregon).  Nor are they required to be 12 deep (see, e.g., Florida).     
    I’d say we should have unanimous verdicts, but hung juries would have an adverse impact on good order and discipline.  It’s bad enough when you have turd ferguson hanging around for a year awaiting his inevitable slow guilty plea.

  19. DCGoneGalt says:

    AF JAG & Mr. Spilman:  True, but I believe the low acquittal standard is the same as the reason for non-unanimous verdicts of guilty: the need to avoid hung juries for operational readiness reasons.  In effect, this means that in the military: Guilty = 2/3 now or whatever standard Congress chooses to adopt in the future.  Not Guilty = Failure of panel to find BARD that the Accused was guilty.  An acquittal in the military, and in the civilian system, does not necessarily mean an Accused is innocent.  It simply means that a panel, or jury, was not convinced BARD. 
     
    I understand and appreciate your point on the administrative consequences.  I suppose it is just a product of not allowing mistrials.  Is there a military service that allows a discharge for conduct that someone was acquitted of?  I have heard of such a thing (the conduct that resulted in an acquittal can only be used as a basis, not for the characterization) in the AF and Army but never actually seen it or been provided with a specific case, kind of like a Yeti sighting.

  20. DCGoneGalt says:

    The Silver Fox:  If only real-world accuseds were more like Turd Ferguson the command might actually want them around longer.

  21. The Silver Fox says:

    Apparently, SCOTUS has said 6-person non-unanimous juries don’t fly (see, http://law2.umkc.edu/faculty/projects/ftrials/conlaw/jurysize.html), so, in the interest of being consistent with the states, I’ll clarify my previous post:  12 person juries with 10-2 to convict.  Now who can disagree with that?  But, would 12 people be tough to seat in a court-martial?  I’d be interested to hear the Coastie perspective on this one.   

  22. stewie says:

    AF JAG, the point on juries was an illustrative example.  You’ve focused on the single example and missed the overarching point it represents, and that is that there are portions of the military justice system that mirror the civilian world, and portions that do not, and of the latter, some harm the accused, some help the accused.  When the vast majority of the changes move from help to harm, we have a pattern that’s disturbing.  And in such a situation, as we are in now, it risks the balance we have that allows us to have the separate system we have.

  23. RKincaid3 (RK3PO) says:

    From my perspective, unanimous verdicts should be required in order to impose a federal conviction. Less than that to trigger a punitive discharge. Arguing that “we are the only jurisdiction that allows minority acquittals” is putting lipstick on a pig. It is not a substantive legal or even a logical comparison. The bottom line: it defends the indefensible. It allows the government pretend that the benefits of that “unique” situation outweigh the damage to society as a whole posed by a government that can punish without having met the traditional burdens of proof that limit so heavily its potentially dangerous authority.
     
    A lot of the safeguards that the UCMJ offers are ephemeral, and certainly not substantive, in a system designed to maximize a commander’s control over discipline. Consider for example, the alleged “second” right to remain silent offered by Art 31; or the ability to appeal even a guilty plea. Not only is it, in a word, stupid to allow one to appeal their decision to release the government from its obligation to prove guilt through trial, but it makes no substantive or economic sense. But it sounds great–hey, plead guilty and then appeal the decision and generate a whole ton of appellate case law on whether the government proved its case despite a guilty plea–most of which are resolved in favor of the government–and it is somehow a “great” or “better” or “added” protection that is “not” available to defendant’s in the civilian system. Meanwhile, the few cases on appeal that are successful usually result in no substantive, appreciable relief (except in cases which result in new trials) simply because the Soldier has usually already completed their sentence, or the courts find it “harmless” under the facts. Meanwhile, the accused still has a federal criminal record and carries with it the taint and consequences of such a conviction, and the government imposed that taint through a short cut that made it easier to do so–which is perversely all the more justifiable if the target is the latest, greatest threat or unpopular person du jour.
     
    Bottom line: government’s ability to PUNISH citizens has always been and always should be heavily limited by high burdens of proof and strong statutes of limitation, and seriously substantive procedural hurdles. The UCMJ was short on much of that before, and lays shorn–utterly bereft–of much that originally offered little protection beyond lip service.  What we are witnessing is the government’s expansion of its ability to segregate its own citizens through official government action and it is doing so by relieving itself of the burden of the historical burdens.  THAT is the travesty of all these changes. 
     
    Again, a commander does NOT need the authority to impose a federal criminal conviction in order to maintain GOADITAF.  If a crime is committed, the commanders role is done and it becomes a societal, prosecution decision outside the lanes of command discipline.  Disciplinary issues are a commanders responsibility–and the authority to address even those need to be governed and checked–if the purpose of discipline is not to become the unifying element for mutiny due to “CPT Queeg-like” excessive abuse guised as discipline that is inevitable when a human is empowered without outside scrutiny.
     
    But of course, no one who was innocent has ever been the “victim” of a “just” system, right?  And a system is “just” where one must no longer be forced to choose between siding with one or more “victims and it is surely better to side with the “victim” who is not also an “accused,” right?

  24. Advocaat says:

    Re character evidence, it is still alive and well for an accused who wants to open that door.  The statute is very clear that only “general military character” is barred in cases involving the covered offenses; specific military character traits are by law still fair game.  After laying the appropriate foundation, counsel may ask, “[Witness], do you have an opinion regarding SSgt Smith’s military character as it pertains specifically to abiding by the UCMJ?…What is that opinion?”  Repeat for every DoD regulation that applies to dignity, respect, anti-harassment, etc., and then drill down into all applicable service regulations.  On top of that, add every “regular” character trait that may apply such as peacefulness, respect for women, gentle disposition, affability, truthfulness, etc., etc.; as a defender I avoided using GMC alone b/c it was too vague.  Separately, I’d argue that in light of the due process tectonic shift that is the NDAA, it’s time to re-examine MRE 707 and dust off J. Stevens’ dissent in US v. Scheffer when an accused wishes to introduce polygraph evidence as a matter of “constitutional equity.”

  25. k fischer says:

    Paco,
     
    Good point.  How can Congress eliminate the Constitutional requirement that evidence be produced?  So, does that relieve the TC of their responsibilities under Brady v. Maryland to produce exculpatory evidence if the complaining witness objects to its disclosure?  
     
    Also, does exception d(2) still apply?  Because, and I could be reading this wrong, there is no privilege under M.R.E. 513 when the communication is evidence of spouse abuse, child abuse, or neglect or in a proceeding in which one spouse is charged with a crime against the person of the other spouse or a child of either spouse.  So, in the recent phenomenon of spousal rape under the UCMJ, 513 carves out this exception and says 513 does not apply.  
     
    And, I guess d(5) also is still legit, but, unfortunately, we won’t be able to show the necessity for the production of the evidence without actually seeing the evidence.  To paraphrase our former Speaker, we have to produce before we can find out what’s in it, right?  So, how in the heck can I argue what is in it if I don’t have it and the judge does not have it, nor does the judge have to require its production?
     
    So, basically a woman who is crazy can refuse to have her medical records from even being produced for an in camera review.
     
    Why they were at it, why not remove the choice of the accused not to testify in front of the panel???????
     
    On a practice note, with all these privileges going on with the complaining witness, is it fair game for a defense counsel to (1) ask a complaining witness about privileged communications and diagnoses, during cross examination, then (2) comment on her invocation of said privileges when she refuses to answer the question under M.R.E. 513?  Can the Judge in a hearing draw an adverse inference to her refusal to provide medical records during a 513 hearing, and order their production for an in camera review?  I recently had an Article 32 where the witness refused to answer questions about whether or not she has been diagnosed with a bipolar or a borderline personality disorder.  

  26. brian lc says:

    KSF, spouse abuse was removed in 2012.  So, no, it’s not a basis any longer (child abuse/charges yes). 
     
    Also, MRE 512 would prohibit you from going into the invocation of privileges…so no asking the question, no adverse inference, …but I kind of think you already knew that!

  27. k fischer says:

    Of course, I knew that.  I was making sure everyone else did……..

  28. AF JAG says:

    Sorry @RK3PO–you lost me at “guilty pleas are bad” and “society is damaged by the military justice system.”
     
     
    It seems you gentlemen see differences between the military justice system and the civilian system and presume they are “defects” . . . but that is NOT the view of the United States Supreme Court.  United States v. Weiss, 510 U.S. 163 (1994) provides the applicable test, upholding Congressional enactments of procedural rights at courts-martial unless:  “the factors militating in favor of [the petitioner’s interest] are so extraordinarily weighty as to overcome the balance struck by Congress.”  Id. at 177 (emphasis added). 
     
     
    Moreover, the Weiss decision is consistent with the Court’s frequent acknowledgment that the military justice system, while different, is fair and legal.  See also Chappell v. Wallace, 462 U.S. 296, 300 (1993) (unique disciplinary structure of military establishment and Congress’ activity in field constitute “special factors” which dictate that it would be inappropriate to provide enlisted military personnel a Bivens-type remedy against their superior officers); Middledorf v. Henry, 425 U.S. 25, 43, 48 (1976) (finding summary courts-martial satisfy due process even without a statutory right to counsel); Parker v. Levy, 417 U.S. 733, 743-44 (1974) (authorizing criminalization of anti-war statements by officer notwithstanding robust First Amendment protection of political speech by civilians); Burns v. Wilson, 346 U.S. 137, 140 (1953) (plurality opinion) (limited function of federal civil courts to determine whether military had given fair consideration to military habeas corpus applicants’ claims that they had been imprisoned and sentenced as a result of proceedings denying them basic rights guaranteed by the Constitution).
     
     
    Let me put it another way:  the point of the military justice system is not to provide courts-martial that resemble civilian trials to the maximum extent possible.  Rather, it is to promote both justice and discipline . . . and we shouldn’t shirk from saying loud and proud that the “discipline piece” is every bit as legitimate as the justice piece–in OUR system.  Prof. Schleuter has a particularly good law review article on this subject:  “The Military Justice Conundrum:  Justice or Discipline,” 215 Mil. L. Rev. 4 (2013) that I’d commend to all of you on the subject. 
     
     
    Prof Schleuter’s recommends modifying the preamble in the MCM to help clarify the “discipline”/”justice” conundrum.  Here’s his thesis, in a nutshell:
     
    The preamble to the current MCM incorrectly signals to the casual reader that the first purpose of the military justice system is to provide justice and the secondary purpose is to promote good order and discipline . . . [But] [t]he current military justice system reflects the principle that the commander is responsible for fighting and winning wars–a view expressed by the Supreme Court in United States ex. rel. Toth v. Quarles.  Thus, the commander should have the power to maintain good order and discipline through the military justice system.  The commander should not have to depend on a civilian justice system to enforce good order and discipline. 
     
    Id. at 73 (emphasis added).
     
     
    I’ll now stand by for the sling and arrows of disagreement that are sure to follow . . .
     

  29. Ed says:

    I suggest the balance that was carefully crafted has partially fallen apart. Not for the benefit of good discipline but for political reasons.

  30. stewie says:

    You know, one or two things have happened since 1994…and a court that thinks “rough justice” applies to our system isn’t one that necessarily spends a lot of time thinking about us.

  31. Ed says:

    There are circumstances where rough justice may be justice. For example a case discussed in today’s New York Times  in which an army Lt deserted and was not permitted to introduce evidence of his psychological condition. He was sentenced to a dismissal and four years confinement. He missed a deployment.   Rough justice could be justified for an important military concern. Rough justice is not okay in a routine 120 case .The new rules are not fair and should be challenged in every possible way.

  32. RKincaid3 (RK3PO) says:

    AFJAG:  You sadly and incorrectly paraphrase me.  Also, your defense of the indefensible is consistent, at least.  But that 1994 case you so lovingly caress is no longer applicable. 
     
    As pointed out by Ed, it predates by many years the current climate where SJAs are ordering accuseds and their counsel to NOT defend the accused; where Congress and the President are engaging in the wholesale slaughter of any semblance of “balance” or “fairness” with the taint of “UCI” previously only barely visible in and through the chain of command and now explicitly, loudly and violently shoved down that chain of command and right into the panel deliberation rooms, as we have seen with the Wright case; the Franklin retirement; the Sinclair and academy cases; the very public, unsubtle pressure on G.O.s to hammer anyone based upon nothing more than allegation, not conviction; and now these latest amendments, which explicitly undo the legal decisions which were judicial attempts at balancing an imbalanced, tyrannical system, such as the amendments on in camera inspections, or the amendment restricting depositions designed to insulate accusers from systemic scrutiny as to the truth of their claims.
     
    No, the system was barely tolerable before, and only because of the Federal court systems “deference” towards Congress’ constitutional authority over the armed forces under Art 1, Sec 8.  In this climate, I pray that there is enough judicial independence left in the system that the military courts will continue to challenge Congress’ absurd amendments designed to implement a political agenda at the expense of all service members everywhere via a direct attack on due process and the presumption of innocence.  But since the military courts–both trial and appeal–are so susceptible to the same sort of dangerous self-preservation instincts–and insufficiently insulated from outside pressure, political or otherwise because they are ordinary service members who desire personal career advancement, my prayers will largely be in vain.
     
    Indeed, I see the only hope now being federal court intervention where the DoD and the Congress are handed their collective asses by a fair, neutral, detached, disinterested third party in office for life; who rules against them in litigation on the issue of denying basic due process; circumventing the requirement for decent treatment of subordinates and other official, but petty misconduct by politicians and those who pander for their approval vice demonstrating leadership under live political fire and against an overwhelming enemy possessed of massive political power that is utterly indiscriminate in its use on behalf of and in fact against service members everywhere.
     
    And I hope that such principled federal intervention occurs BEFORE Americans quit volunteering to serve, which they will do.  That lack of volunteerism will be a consequence of the new, current reality that is the UCMJ:  there is NO JUSTICE in the military–only political vengeance at the feet of a trampling, fickle, political elite whose pet project of the day–whether they realize it or not–is the complete destruction of the moral of the US military.
     
    Thanks Congress.  And thanks, Leaders, everywhere, who have contributed to this mess by not opposing it or by simply acquiescing or mouthing it as gospel simply to avoid the withering political indirect fire outbound from D.C..  BRAVO!!

  33. k fischer says:

    Rudyard Kylepling writes:
     
    When the Gods of the Market created victims, we were told that we must believe,
    Even when the Accuser’s account, held water like a rusty sieve.
    With innocent Soldiers in Leavenworth, our morale was tattered and worn,
     
    And the Gods of the Copybook Heading said: “Hell hath no fury like a woman scorned.”
     
    $282 million to fight the military rape epidemic?  The Gods of the Market has spouted that 1 in 5 college women were sexually assaulted for a while now, but the DOJ shows that this number is actually 6.1 out of 1,000.00 or .031 out of 5 and is on a downward trend.  While every rape is a tragedy, 0.6% is not exactly an epidemic, particularly where nonstudents have a higher percentage of rape, meaning college students are actually safer than nonstudents.  Yet, think how much of the taxpayers dollars colleges receive to eradicate the rape epidemic in academia.  The sexual grievance industry has built a house of cards that is falling like the ruble and the price of oil.

  34. AF JAG says:

    Gentlemen (@Ed, @Stewie, @RK3PO),
     
    Lest you think I’m stuck in a time warp in 1994, let me help.  Not only is Weiss the applicable test of the Supreme Court, it has consistently been cited since then by CAAF in evaluating the “constitutionality” of the UCMJ (most recently reaffirmed in 2013 in United States v. Vasquez, 72 M.J. 13, 18 (C.A.A.F. 2013)). 
     
     
    I didn’t think our readers necessarily needed a string cite for this discussion, but it seems as though you gentlemen have asked for it, so here we go:  United States v. Vasquez, 72 M.J. 13, 18 (C.A.A.F. 2013) (applying the Weiss standard to affirm military judge’s use of RCM 805 to re-read prior trial testimony to newly seated alternate court-martial panel members at trial); United States v. Easton, 71 M.J. 168, 176 and 176 n.12 (C.A.A.F. 2012) (applying Weiss to uphold the Article 44(c) Double Jeopardy standard vice the 5th Amendment Double Jeopardy standard); United States v. Gray, 51 M.J. 1, 49-50 (C.A.A.F. 1999) (holding that the Weiss standard was “the appropriate test to determine due process violations in court-martial procedure in a death penalty case); United States v. Breeding, 44 M.J. 345, 355 (C.A.A.F. 1996) (Sullivan, J. concurring) (Upholding RCM 703 notwithstanding its differences from Fed. R. Crim. P. 17(a) because “Appellant must show that “the factors militating in favor” of a civilian procedure “are so extraordinarily weighty as to overcome the balance struck by Congress”); United States v. Mitchell, 39 M.J. 131 (CMA 1994) (applying the Weiss standard to conclude that the fact that Judge Advocate General of the Navy prepares and signs Navy-Marine Corps Court of Military Review judge’s fitness reports did not deprive the Court of independence or an appearance of independence so as to violate due process).
     
     
    And by the way, it appears that all the cool kids are applying the Weiss standard, as the D.C. Circuit (the hub of federal government administrative law jurisprudence) also authoritatively applies Weiss as the standard in evaluating due process challenges to military justice procedure.  Sanford v. United States, 586 F.3d 28, 29 (D.C. Cir. 2009) (applying Weiss to uphold a SPCM conviction composed of a panel of less than 6 persons against a due process challenge).
     
    Also, not for nothing, but several of the “new rules” you gentlemen complain about are not new at all–the federal system has been employing them for years: 
     
              (1)  no defense counsel cross examination of a victim prior to trial?  Yeah–it’s called a grand jury proceeding;
     
              (2) Limiting depositions to a party’s own witnesses, yeah, it’s called Fed. R. Crim. P. 17;
     
              (3) Eliminating a generalized “good military character” defense and requiring “good character evidence” as to a particular “pertinent” character trait relevant to the charged offense, yeah, it’s called Fed. R. Evid. 404(a)(2)(A) (see also Fed. R. Evid. 404 Commentary, Note to subdivision (a):  “The limitation to pertinent traits of character, rather than character generally, in paragraphs (1) and (2) is in accordance with the prevailing view. McCormick § 158, p. 334. “).  That said, I do agree w/ @Advocaat that while “good military character” generally is closed, a more specific trait of “law abidingness” is likely still open under the new statute.  Regardless, Congress’s treatment of this issue impacts only rule based, not constitutional rights, so it should survive judicial review.  Even the case cited by Mr. Sullivan in the prior good military character thread from December 2013 for the precept that evidence of defense offered evidence of “law abidingness” is relevant to nearly all criminal prosecutions still recognized that admissibility of character evidence was a non-constitutional issue.  In re Sealed Case, 352 F.3d 409, 412 (D.C. Cir. 2003) (holding that erroneous exclusion of defense character for truthfulness evidence was “non-constitutional” harmless error). 
     
     
    So these reforms aren’t an all-out assault on fairness, they are removing paternalistic protections above and beyond prior federal criminal procedure that Congress judges to no longer be necessary in a mature military justice system with a dedicated trial and appellate judiciary and 64 years of experience under its belt.
     
     
    So if all that’s what you call “rough justice,” I suggest you start your crusade elsewhere, say, the civilian justice system, because that’s where many of these “new rules” that so trouble you are coming from.  And as for the “rough justice” of the military justice system serving as a society-wide disincentive for patriotic Americans to volunteer to serve in the armed forces, I’m going to respectfully ask for some evidence to back up that sweeping proclamation. 
     
     
    Finally, @RK3PO–please don’t tell my girlfriend that I’ve been “lovingly caressing” Weiss v. United States . . . she’s apt to get jealous;)
     

  35. DCGoneGalt says:

    AF JAG:  Not to beat a dead horse, but this horse needs another beating.  Give the military true juries and you can make the rest of the criminal procedural system under the UCMJ exactly the same as the civilian system.  To me, that is the Great Non-negotiable as to when I would stop complaining.  (Who the hell am I kidding, this is a political matter . . .  no one will ever stop complaining.)
    Just some advice:  Don’t lovingly caress any case.  I had a friend who once tried to kick back with a glass of wine and lovingly caress the record of trial from one of their favorite cases . . . it only resulted in paper cuts where you don’t want paper cuts.  You should never do that nowadays, the record of trial can’t affirmatively consent. 
     

  36. stewie says:

    1st, the MJ system is not what I or anyone on this blog calls “rough justice” it’s what the Chief Justice of the Supreme Court of the United States called “rough justice” in an opinion just a few years ago.  Thus the quotation marks around the opinion of a significant member of the civilian legal community.  So if you want evidence to back up that sweeping proclamation, take it up with CJ Roberts.
     
    2nd, no one has made the claim that I can see that the military justice system is “unconstitutional” as a whole. Something can be wrong, or unfair, or unbalanced, and still make it over the constitutional hurdle, yes?  I’m sure we can all come up with additional changes that even you would disagree with but would still be constitutional.  So citing the idea that overall the MJ system is constitutional, as if that’s the only consideration or thought that needs to go into it is, well, a view that may underestimate the complexities of the MJ system.
     
    3rd, you like the changes because you thought the pendulum was already too far in favor of the accused. Got it. These are in fact new rules, they are new to the military justice system. A system filled with checks and balances both in favor of the accused and not so in favor.  Citing that they are present in a significantly different system, with different checks and balances, is not…persuasive.
     
    4th, I’ll repeat again, if you are so in favor of somethings looking just like the civilian justice system, then one assumes you should be equally in favor of others that would explicitly be a positive to future military accused yes? Or are you only ok with it when it makes things tougher or harder on a military accused?

  37. Ed says:

    AF Jag Tell me what good is this great appellate judiciary when you are convicted of a 120 charge and specification and receive 150 days incarceration and no BCD?

  38. RKincaid3 (RK3PO) says:

    Thanks much, all.  You have sent me home with a smile and a hearty chuckle.

  39. DawG says:

    Regarding the deposition issue, I recommend you read RCM 702.  While the previous version of Article 49 was more broad than the FY15 NDAA version, RCM 702(a) already limited depositions.  In fact the wording of Section 532 of the NDAA seems to be drawn directly from RCM 702(a).  So concerns about Congress limiting the deposition authority are misplaced.  The MCM has had those limitations in place.
    I’m staying out of the rest of this interesting conversation.

  40. stewie says:

    Problem with that argument is you ignore the discussion section of 702 which had some defense favorable language tied to non-availability at an Article 32.

  41. Bruce Landrum says:

    “Restoring a convening authority’s total discretion to act on the findings or sentence (except for offenses with a mandatory minimum)”
    Did I read this wrong?  When I go look at the text, it looks to me like the CA still may not act on the findings EXCEPT for “qualifying offenses.”  Still looks like limited CA discretion to me, but please correct me if I am wrong on this.  It took a lot of reading and re-reading to get to this conclusion!

  42. Zachary D Spilman says:

    Here’s the relevant part of Section 531(g) of the NDAA:

    (2) TRANSITION RULE FOR AMENDMENTS RELATED TO ARTICLE 60-

         (A) TRANSITION RULE- Section 1702(d)(2) of the National Defense Authorization Act for Fiscal Year 2014 (Public Law 113-66; 127 Stat. 958; 10 U.S.C. 860 note) is amended–

              (i) by striking `The amendments’ and inserting `(A) Except as provided in subparagraph (B), the amendments’; and

              (ii) by adding at the end the following new subparagraph:

                   (B) With respect to the findings and sentence of a court-martial that includes both a conviction for an offense committed before the effective date specified in subparagraph (A) and a conviction for an offense committed on or after that effective date, the convening authority shall have the same authority to take action on such findings and sentence as was in effect on the day before such effective date, except with respect to a mandatory minimum sentence under section 856(b) of title 10, United States Code (article 56(b) of the Uniform Code of Military Justice).’.

         (B) APPLICATION OF AMENDMENTS- The amendments made by subparagraph (A) shall not apply to the findings and sentence of a court-martial with respect to which the convening authority has taken action before the date that is 30 days after the date of the enactment of this Act.

    (emphasis added).

    It’s essential to note that this statutory language changes last year’s NDAA, not the UCMJ. Paragraph (2)(A) states that the change is to Section 1702(d)(2) of the FY14 NDAA. That section read:

    (d) Effective Dates-

        (2) ARTICLE 60 AMENDMENTS- The amendments made by subsection (b) and paragraphs (1) and (2) of subsection (c) shall take effect 180 days after the date of the enactment of this Act and shall apply with respect to offenses committed under chapter 47 of title 10, United States Code (the Uniform Code of Military Justice), on or after that effective date.

    Because this part of the FY15 only modified the effective date of the FY14 NDAA, the language in the new Article 60 about qualifying offenses (that was added by section 1702(b) of the FY14 NDAA) isn’t implicated.

    Notably, as shown above, this change is only effective for convening authority actions that occur at least 30 days after the NDAA is enacted. Since the new Article 60(c) took effect on June 24, 2014, it’s possible that there are cases out there that include convictions for offenses committed both before and after that date, and that the convening authority could act before this change takes effect. Such cases will probably be the only examples in the history of the UCMJ where the defense requests the convening authority delay taking action!

  43. Dwight Sullivan says:

    Bruce, I hope all is well!  I believe that section 531(g)(2) of the NDAA for FY 15 would apply only in cases resulting in convictions for offenses that straddle the effective date of the NDAA for FY 14’s amendments to Article 60.  In such a case, once section 531(g)(2) takes effect, a CA may exercise the old CA powers, except for setting aside a mandatory discharge for a post-June 24, 2014 offense.
    For purposes of this thread, it also seems relevant to note that section 537, dealing with the threshold for in camera reviews of evidence under Military Rule of Evidence 513, generally codifies the law that already applies in Marine Corps and Navy courts-martial.  See United States v. Klemick, 65 M.J. 576 (N-M. Ct. Crim. App. 2006).  [Disclaimer:  this note is offered in my personal capacity and shouldn’t be imputed to DoD or anyone or anything else.]

  44. Bruce Landrum says:

    Dwight, Great to hear from you!  I understand this is a transition provision and that makes sense.  When I saw the “Restoring a convening authority’s total discretion to act on the findings or sentence” with no time limitation attached, I thought Congress had somehow decided they made a mistake and backtracked!  But, alas, the CA discretion limitations are still there when all the dust settles.  Now that I re-read the original post, it makes sense now.  Thanks again for the clarification!  Happy Holidays and Happy New Year!