Significant military justice event this week: A meeting of the Judicial Proceedings Panel will be held on Friday, January 30, 2015, at One Liberty Center, Suite 150, Conference Room, 875 North Randolph Street, Arlington VA 22203. Additional information is available here.

This week at SCOTUS: I’m not aware of any other military justice developments at the Supreme Court.

This week at CAAF: CAAF will hear oral argument in two cases this week, both on Tuesday, January 27, 2015, beginning at 9 a.m.:

United States v. Olson, No. 14-0166/AF (CAAFlog case page)

Issue: Whether the military judge erred by denying the Defense’s motion to suppress the evidence seized from Appellant’s house because the totality of the circumstances indicated that Appellant’s consent to search was involuntary.

Case Links:
AFCCA opinion
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview

United States v. Muwwakkil, No. 15-0112/AR (CAAFlog case page)

I. Whether the U.S. Army Court of Criminal Appeals erred in its application of both the federal Jencks Act (18 U.S.C. § 3500) and Rule for Courts-Martial 914.
II. Whether the U.S. Army Court of Criminal Appeals erred in its deference to the military judge’s findings and conclusions, as she failed to consider the totality of the case, and instead made a presumption of harm before ordering an extraordinary remedy. See, e.g., Killian v. United Utates, 368 U.S. 231 (1961).

Case Links:
ACCA opinion (73 M.J. 859)
Blog post: The Army enforces Jencks
Blog post: The Army JAG certifies Jencks issue in Muwwakkil
Appellant’s (Government) brief
Appellee’s brief
Blog post: Argument preview

This week at the ACCA: The Army CCA will hear oral argument in one case this week, Monday, January 26, 2015, at 2 p.m.:

United States v. Burke, No. 20120448

I. United States v. Miranda requires that a suspect be read his rights when the suspect is interrogated while the subject’s freedom of action is deprived in any significant way. Here, Appellant’s commander ordered Appellant to report to the battalion headquarters to perform “special duty” where he was informed of his wife’s death, he was not dismissed by his superiors or otherwise free to leave, and then was interviewed by civilian law enforcement. Thus, when Appellant was questioned, his freedom of action was deprived in a significant way, and the military judge abused his discretion when [he] admitted Appellant’s statements to law enforcement absent Miranda warnings.
II. Servicemembers must be read their Article 31(b), UCMJ, rights when they are suspected of an offense and questioned by a party subject to the code or otherwise an agent of one subject to the code. Here, civilian law enforcement agents coordinated a suspect interview with appellant’s command, came onto the military installation, and conducted the interview in the battalion conference room, appellant’s appointed place of duty. In availing themselves of the benefits of using the military command and installation to conduct their suspect interview, the government cannot show that the subtle pressures of the military environment were not present, and thus, the military judge erred in ruling that article 31(b) rights warnings were not required prior to questioning.

This week at the AFCCA: The Air Force CCA will hear oral argument in United States v. O’Connor, No. 38420, on Friday, January 30, 2015, at 10 a.m.

This week at the CGCCA: The Coast Guard Trial Docket shows no scheduled oral arguments at the Coast Guard CCA.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

22 Responses to “This Week in Military Justice – January 25, 2015”

  1. Lieber says:

    MAJ Eric Burris was convicted. Craziness. That was a case where the LTC JA IO recommended not proceeding. 

  2. Phil Cave says:

    Welcome to trying cases at Fort Bragg.

  3. afjagcapt says:

    Any articles on the MAJ Burris case; just curious what he was convicted of…

  4. Phil cave says:

    20 years. 

  5. Lieber says:

    Yup, 20.  This is insane. What the heck happened in that court room?  Did he blow up on the stand or something? This is going to cause a stir across the Corps.  A crazy marital custody case involving one of our own.
    afjagcapt: He’s an Army JA.  Was the CoJ at the 82nd when allegations were made.  Bitter custody dispute involving ex wife who didn’t want to move to Bragg.  An LTC JA IO didn’t find her credible.  They referred anyway.  Probably assuming it would result in an acquittal on the Article 120 specs (there was some other stuff).  He was convicted of forcible rape.  They’ve kept the story away from the media but I’m not sure how that’s going to play out now.

  6. Bill Cassara says:

    He did not testify. It is a total travesty of justice.  he is innocent. 
    Disclaimer; I am one of his defense counsel.

  7. Phil Cave says:

    The gov. apparently argued for 16 years.

  8. Javert says:

    Unbelievable. He’s been a close friend since I joined the Army. Knowing what I know of the case I find the outcome stunning. It calls into question the ability of our courts martial to fairly adjudicate cases like this.

  9. Bill Cassara says:

    It should. 

  10. Ed says:

    It also sends a message to our young.” STAY OUT OF THE MILITARY”. This should not be the case.

  11. stewie says:

    If I may ask, of what charges was he convicted?  Mr. Cave, what do you think led to the conviction? Just Bragg panels? or an unfavorable evidentiary ruling or some combination?

  12. Javert says:

    From the officer himself, “Rape and domestic violence.”  I and many of my peers are stunned; wondering if we missed something.  I certainly didnt think that he would be convicted based on the uncorroborated claims of an ex-wife.  

  13. afjagcapt says:

    Javert, with all due respect and understanding that this must be difficult when for those that know him, missed what? That he didn’t come in to work and talk about raping or beating his wife? Isn’t that what is almost always said by all but a few of the folks closest to the couple in these spousal cases  (“they seemed so happy!” “He seemed so good to her”)? Yes, the ex-wife/custody angle presents an issue for the finder of fact, but isn’t is possible (and I’m speculating as I know nothing about this case beyond what’s been posted on caaflog) that after hearing the evidence the fact finder determined that she was divorcing him because she didn’t like being raped and assaulted and didn’t want the kids around it? I would just like to hear a bit more about the facts before I call this an injustice and throw the system out…particularly when the sentencing authority felt strongly enough to drop a 20 year sentence.

  14. Tom Booker says:

    For the benefit of the Army’s DAD:  MIRANDA V. ARIZONA, 384 U.S. 436 (1966).  I’m sure that the United States has probably prosecuted somebody called “Miranda” at some point, and perhaps even after taking/using an un-warned statement, but the “Miranda rights” case involved Ernesto Miranda, a person convicted by the State of Arizona.
    Respectfully, Tom Booker

  15. stewie says:

    I only asked for the specifics because 20 years is a really huge sentence. I’ve seen child molestation cases not get that much time, and most rape cases don’t get that long either, so I find that part something that makes me wonder about the specifics.  You also rarely see the fact-finder give more than the government asks for (although the government asked for 16, again, pretty big number in a vacuum).  I get the you were an attorney/COJ angle, and that probably tacks on a few years but even with that, still a huge sentence.

  16. Matt says:

    Well, we’ve created a monster when it comes to sex assault prosecutions.  Now it is eating its creators.

  17. TC says:

    I don’t know any of the facts of the case, but how is it possible that an O-4 judge advocate doesn’t take the stand in his own defense?  There is not a defense counsel in the world that could keep me off the stand to declare my innocence.  I get that there may have been collateral misconduct or contradictory statements that the government was saving for impeachment, but that makes no sense to me. 

  18. Lieber says:

    afjagcapt: I of course don’t know the truth of ultimate innocence or guilt.  but the divorce happened because she didn’t want to leave Belton, TX (where she had lived her entire life with her folks) in order to move to Fort Bragg.  my info is from the Article 32 report.  vic had massive credibility issues per that report.
    TC: I agree that a panel expects an officer to take the stand.

  19. RY says:

    TC – I understand there is some expectation that officers should take the stand but that is not necessary in many cases.  If you deal with it from the beginning (i.e., voir dire), it shouldn’t be a problem.  Most of the officers I defended ultimately did not take the stand, even if innocent.  There’s a lot that goes into play but at the end of the day it was as simple as risk/benefit to me:  how strong has the Gov’t’s case been thus far, what would the client add, what are the risks, how well does he answer questions, how will he come across, etc.  In other words, I wouldn’t put too much into the client not testifying.  Chances are, with the result of 20 yrs, it would have been an uphill battle for his testimony to be believed.

  20. RY says:

    I wrote that most officers I represented did not take the stand.  I neglected to mention that most were found not guilty.  I just didn’t see much showing juries truly hold that against the officer.  Every once and a while I think it happens but every once and a while a jury does something crazy anyway.   

  21. k fischer says:

    ACCA could always reverse based on factual insufficiency.  See US v. Foster, 2009 WL 382002, NMCCA 2009 (“Significantly disturbing to the court, the allegations of rape were made in the midst of a hotly contested divorce and custody battle, after failed attempts at settlement, under the terms of which Mrs.  Foster was prepared to surrender partial custody of her children to the man she later accused as an abusive rapist. Considered in the light most favorable to the Government, a reasonable member could choose to believe the victim, and to disbelieve evidence inconsistent with guilt. However, under the facts presented, we are unable to conclude that the appellant is guilty of rape beyond a reasonable doubt. To the contrary, we hold that his conviction of rape was factually insufficient, and was obtained as the result of other errors, discussed below. The rape conviction cannot stand.”)
    Sgt. Brian Foster only spent 9 years in prison…..
    Nobody should be forced to take the stand, whether they are an O-4, a JAG, or the Pope himself, particularly when the Government’s only evidence comes from the complaining witness who has a motive to fabricate and there is no physical evidence to corroborate her account.  There really should be no way a rational factfinder could be convinced beyond a reasonable doubt in those circumstances.

  22. Zachary D Spilman says:

    I’m closing the comments to this post because we’re way off the topic of TWIMJ, and because in the absence of some open source reporting on the Burris case I don’t think this is an appropriate forum for this degree of speculation and innuendo.

    If anyone learns of a relevant news report or official release of information about the Burris case, please let me know by email to