Here is the Army News Service’s take on the FY2015 NDAA Mil Jus changes. It is a tad better than the Military Times coverage we posted last week. The article includes observations from Lt. Col. John Kiel Jr., chief of policy branch, criminal law division, Office of the Judge Advocate General.

The Chairman of the Joint Chiefs of Staff said Commander US Forces Command is the potential convening authority in the Sergeant Bergdahl case, here (Military Times).  General Dempsey said he expects a decision of disciplinary action soon, but stayed away from any appearance of UCI by saying anything more. Bergdahl could face court-martial for allegedly leaving his post in Afghanistan before being captured and held by Taliban sympathizing militants from the Haqqani network.

I was just reminded that DoD’s Judicial Proceedings Panel (JPP) has a hearing this Friday, see here.  The Dec. 16, 2014 meeting of the JPP featured appearances by all the service judge advocates.  See speaker bios here and transcript here.  Colonel John Baker, a friend o’ the blog, appeared on behalf of Major General Ewers.

More on 1stLt Lorance’s quest for a new trial from Army Times, here.  Prior coverage here. Update:  Here is the latest RCM 1107 memorandum submitted by Lorance’s counsel, courtesy of his counsel.

A not guilty plea in the Staff Sergeant Sean Oliver murder trial in Germany, here (S&S).  Prior coverage here.

17 Responses to “Military Justice News for Tuesday, Jan. 13, 2015”

  1. Dew_Process says:

    RE: NDAA changes – while the changes to RCM 405 are deemed retroactive, where they adversely affect the Accused, why is this not an ex post facto issue?  Especially for allegations that took place prior to the NDAA’s passage?  See, e.g., U.S. v. Lopex de Victoria, 66 MJ 67 (CAAF 2008).

  2. Dew_Process says:

    If you serve in the U.S. Military and you rape or sexually assault a fellow service member, chances are you won’t be punished.

     
    Thus, pontificates the author of this Law Review Article, HERE.

  3. stewie says:

    How does it violate ex post facto? What’s being criminalized? What punishment is being changed? Just because they adversely affect the accused does not make it ex post facto.
     
    These are non-constitutional, administrative rules administered by Congress.
     
     

  4. stewie says:

    Good grief, I’m no great writer, but that thing was so poorly written.  It’s all over the place (at one point talking about the rate at which homeless female veterans are raped), and it doesn’t pretend at balance.  Not to mention the majority of it’s thesis is OBE.

  5. Mike "No Man" Navarre says:

    Dew–Two quick thoughts, don’t read student notes on MilJus it will just make you crazy.  And the source for that wonderful sentence . . . “Speier, supra note 1.”  That’s MilJus expert Congresswoman Jackie Speier in a “CNN Opinion” piece.

     

  6. Mike "No Man" Navarre says:

    Stewie–Lots of the citations are to Op-Eds, which is amusing in as “Law Review.”  Given the quality we’ve seen out of the U. Miami Nat’l Security & Armed Conflict L. Rev. before, here, I think they may want to drop “Law” from their masthead.

  7. Mike "No Man" Navarre says:

    Oh never mind, its the same author as here . . . . why do they persist in publishing this guy?  He’s one of the article editors, here, but really they gotta stop. 

  8. JTS says:

    I may be off base here, but I have never, ever heard of it called the “Maryland Naval Academy.”

  9. RY says:

    Ex post facto does not just apply to making new crimes or increasing punishments.  It applies to changing substantial rights.  It is not a stretch to say Art 32s are a substantial right nor is it a stretch to say reducing the burden and evidence considered is a substantial change to those rights.  

  10. stewie says:

     I’m sorry but ex post facto doesn’t apply to changing how we do Article 32s. I mean someone can try and make that argument to the courts, but I’d eat my shorts, hat, and shoes if it went anywhere. There’s only three things reached by ex post facto, increasing punishment, retro-criminalizing conduct, and removing a defense that was present at the time of the offense. 
     
    “It is settled, by decisions of this Court so well known that their citation may be dispensed with, that any statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post-facto.”Collins v. Youngblood, 497 US 37 (1990) citing Beazell v. Ohio, 269 US 167 (1925).
     
    The appellant in Youngblood argued that ex post facto also applied to losing a “substantial protection” of the accused, in this case, a procedural alteration that allows reformation of improper verdicts.  Effectively the procedural change lost him the right to a new trial he would have had before.  The Supremes disagreed and looked back to the formulation in Beazell.  It’s gotta do one of those three things to be ex post facto.
     
    Can you point me to another, later case where a substantial right was limited that was not related to increasing punishment or reaching back and criminalizing conduct was found to be ex post facto?  This is a procedural change, and it’s not done to sneak in a change in criminality, remove a defense, or change a punishment.  It’s a really bad, dumb idea, but it’s not ex post facto.       

  11. k fischer says:

    UM has always been a little hostile towards the military.  Ask any Service’s JAG recruiter who had to interview candidates from UM’s law school, which I was twice.

  12. k fischer says:

    Wow.  That Lorrance story is pretty rough.  Those guys who were interviewed sound pretty credible.  Maybe, I was a little premature in my righteous indignation.  So, is Fox News going to interview them like they did Bergdahl’s fellow platoon members?

  13. Dew_Process says:

    @ stewie: Like most of your posts, your comments gave me pause, forced me to rethink and in so-doing, do some research.  The grand-daddy of Ex Post Facto cases is Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798).  That case supports your argument, but does go one step further:
     

    1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3rd. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender. Id. at 398-90

     
    More recently the Court addressed this in Carmell v. Texas, 529 U.S. 513 (2000), where the Court held that an evidentiary rule requiring corroboration of the alleged victim’s testimony in sexual assault cases that was in effect at the time of the alleged offenses, but repealed by the Legislature at the time of the trial, when applied to that accused, violated the Ex Post Facto clause.  Further research led me to what appears to be a decent law review article on the subject (although I’ve just skimmed it and not read it carefully) available HERE.
     
    Considering the potential issues this raises – but certainly doesn’t resolve – some additional dialogue and thinking here would appear to be warranted.  Hopefully, one of the Admins can “cut and paste” this to a separate thread.

  14. stewie says:

    Kind words, I just throw stuff out there, and try to stumble to the right answer.
     
    I have less of a problem with the idea that ex post facto might be implicated by trial evidentiary rules (or really anything trial-related) then a pre-trial PC hearing (or it’s equivalent).
     
    I think that’s where my issue lies, applying ex post facto to a pretrial probable cause process.
     
    In Youngblood, the Supremes outright rejected the 4th prong in Calder (backed up by your law review link on page 455).  The caveat being that if you changed the rules such that they significantly implicated one of the first three prongs, then it wasn’t permissible.  Seems to me that’s what you have somewhat in Carmell? (A reading of your law review article seems to support that argument since it describes the action in Carmell as “retroactively easing the evidentiary burden of government in prosecuting sex offenders”). Of course, the Supremes in Carmell apparently quasi-resurrected the 4th prong, but I don’t think fully.  It still in reality required that the change in law made it easier for the state to convict the accused…that’s not the case or purpose of the changes in Article 32, which is to perhaps make it easier for the case to go to trial, or to defer discovery until later in the process (or both) but those are different things.
     
    So even with the 4th prong being viable (probably), I don’t think the changing of the Article 32 process falls under the 4th prong.  The discovery function is gone from the 32, but that function simply comes later in the process and is unaffected in kind or scope.  The standards at trial don’t change either.  And actually, the standard at the hearing is probable cause which is the same thing as “reasonable grounds.” So we are really talking about some procedural changes (now, the practical impact of those changes are both very large, and something I’m very much not in favor of).
     
     
     
     

  15. Ry says:

    sorry I haven’t responded yet. Im knee deep in a different law review article. I had looked into this a week or so ago and pulled cases but that was in one office and I’m transitioning to another office in a different department of the government.  My initial look was less ex post facto and more about application of a new criminal procedure rule under Teague v. lane and Griffith v. Kentucky.  They seem a bit converse, in that they more commonly apply where appeals have created a more favorable law and the question is one of retroactive application. For example, applying Ashcroft v. free speech. I think that case law still applies where it makes it much easier on the govt to get to trial. In doing that research, I came across ex post facto. I saw reference to rules of evidence and I thought I also saw criminal rules of procedures wrapped into that in a case or two.  In short, there are not many cases on point but in both areas the tests look at the impact on the substantial rights of the accused and the effect on the govt burden.  The changes here are not insignificant anymore than skipping a grand jury is insignificant or lowering the burden needed to even get to trial.

  16. stewie says:

    But the burden to get to trial isn’t lowered…it’s still probable cause/reasonable grounds.  Mostly, all they’ve done is removed discovery and placed it further along in the process.  Yes, more than that, but that’s the main change here.

  17. Dew_Process says:

    @ stewie & Ry: There is another line of cases that I came across this morning in between insanities, that suggests that if it doesn’t quite make the Ex Post Facto “cut-off,” that it could still be a due process violation.  I haven’t researched that at all yet – maybe tonight, but just wanted to throw that out for consideration.  Obviously, the pre-trial concerns stewie raises would apply to that under his analysis as well.
     
    I’ve got a 32 coming up with bizarre facts: the alleged offenses occurred on 15 DEC 2011; CID began its investigation @ April 2012; original 32 was in December of 2013; referred to a GCM in Feb 2014; and charges were withdrawn in May of 2014, allegedly to investigate some new allegations.  30 DEC 14, just the original charges were again preferred.  Aside from Speedy Trial issues, the gov’t and IO are saying that the “new” 32 rules apply – which would probably be a non-issue but for the fact that the Army lost the entire digital recording of the first 32 before it was transcribed.  Hence my need to apply the old rules.  Stay tuned.