It’s been a long time coming, but the President has finally signed an Executive Order (number 13696) amending the Manual for Courts-Martial to incorporate the 2013 legislative changes to the UCMJ (series of posts discussing the changes available here). The EO is scheduled for publication in the Federal Register on Monday, but you can read an advance copy here.

Edit: The final version is available here. 80 Fed. Reg. 35,783.

The changes include a new R.C.M. 405 (see this discussion of the stopgap measures), various changes to implement the new Article 6b (statute discussed here and here), and a new R.C.M. 1001A that allows a victim to make an unsworn statement during sentencing that is not subject to cross-examination (proposed rule discussed here).

Astonishingly, the EO does not provide the still-missing Part IV materials for the current version of Article 120 (enacted in the FY12 NDAA, and effective on 28 June 2012) (discussed here). Such materials would include model specifications (like the ones available here), definitions, explanations, and other valuable commentary. These materials are – presumably – included in the residuum EO (discussed here) that – we can only hope – will one day get signed, but President Obama’s failure to implement Article 120 is deeply troubling. That failure was also a topic of discussion during the recent meeting of the Article 120 subcommittee of the Judicial Proceedings Panel (at which I testified) (meeting details available here).

A summary of the new EO is after the jump. The summary is taken verbatim from an excellent write-up by the Marine Corps Judge Advocate Division (it will eventually be posted here as part of Practice Advisory 9-15).

R.C.M.s Affecting Article 32 Preliminary Hearings

R.C.M. 404A: Establishes a disclosure requirement for certain information that must be provided to the defense before a preliminary hearing. This rule supersedes a similar rule within ALNAV 086/14.

R.C.M. 405: Implements changes to Article 32 and specifically precludes the use of the “constitutionally required” exception to M.R.E. 412 at a preliminary hearing. This rule supersedes a similar rule within ALNAV 086/14 for all preliminary hearings that begin after the EO was signed. Therefore, preliminary hearing officers appointed prior to the signing of the EO who will conduct a preliminary hearing after the EO was signed must be reappointed with a new appointing order that references R.C.M. 405.

R.C.M. 703: Removes the authority of the Article 32 preliminary hearing officer to issue subpoenas.

R.C.M. 1103A: Authorizes the preliminary hearing officer to seal matters and restricts who may view these matters.

R.C.M. 404(e), 406(b), 603(b), 703(e), 705(c), 706, 902(b), 905(b), 906(b), 912, 1103, 1106(b), and 1112(c) and Pt. IV, ¶¶ 57, 96, and 96a: Replace the term “pretrial investigation” with the term “preliminary hearing.”

R.C.M.s and M.R.E.s Affecting Victim Rights

R.C.M. 305: Implements Article 6b and gives the victim certain rights to be heard and to be notified of proceedings.

R.C.M. 702: Implements Article 49 limitations on when a deposition may be ordered and provides that a victim’s declination to testify at a preliminary hearing or to participate in a pretrial interview does not, per se, warrant a deposition.

R.C.M. 801(a): Implements Article 6b to require the military judge to appoint a representative to exercise the rights of certain victims.

R.C.M. 806(b): Implements Article 6b to provide a victim the right to confer with trial counsel and not to be excluded from proceedings absent judicial determination.

R.C.M. 906(b): Implements Article 6b to provide a victim the right to receive notice of, attend, and be heard on a motion hearing for release from pretrial confinement.

R.C.M. 1001(a), 1001A: 1001A is a new rule which provides that, at sentencing, the victim in a non-capital case may make an unsworn victim impact statement orally or in writing. If the victim exercises this right, the victim is not considered a witness for purposes of Article 42(b) and cannot be cross-examined.

R.C.M. 1107: Implements Article 60(d) to provide a victim the opportunity to submit post-trial matters for the convening authority’s (CA) consideration.

M.R.E. 412, 513, 514: Implements Kastenberg, 72 M. J. 364 (C.A.A.F. 2013) and provides the victim or the patient the right to be heard through counsel.

M.R.E. 514: Extends the victim advocate-victim privilege to the Department of Defense Safe Helpline’s staff.

M.R.E. 615(e): Implements Article 6b and provides the victim the right not to be excluded from court-martial proceedings unless the military judge determines that the victim’s testimony would be materially altered by attending.

R.C.M.s Affecting Convening Authority Decisions

R.C.M. 201(f): Implements changes to Article 18 to limit court-martial jurisdiction over penetrative sexual assault offenses, and attempts to commit such offenses, to general courts-martial. Only applies to offenses committed after 23 June 2014.

R.C.M. 601(g): Creates a new rule, permitting CAs to transfer charges to a parallel CA for disposition under certain circumstance. As one example, if the original CA is deploying and the accused is remaining behind, the CA may transfer an ongoing case to another CA.

R.C.M. 1105 and 1107: Implements changes to Article 60(b) to limit the convening authority’s power to alter the findings and sentences of courts-martial; prohibit consideration of matters concerning the victim’s character that were not admitted into evidence; require the convening authority to issue a written explanation for setting aside any finding of guilty or disapproving, commuting, or suspending any part of the sentence; and authorize correction of any type of error (instead of only clerical errors) in a convening authority’s action. The limitations on Convening Authority’s Action apply to offenses committed after 23 June 2014, but these limitations do not apply to straddling cases. For a detailed explanation of the changes to Article 60, please see Practice Advisory 4-15.

R.C.M. 1301(c): Implements changes to Article 18 to prohibit summary courts-martial from exercising jurisdiction over certain sex offenses. Only applies to offenses committed after 23 June 2014.

Additional Changes to Evidentiary Rules and Enumerated Articles 

M.R.E. 404: Prohibits admission of general military character evidence for purposes of offenses charged under Articles 120–123a, 125–127, and 129–132, or attempts to commit those offenses, and any other offense for which it is not relevant to an element. As is explained in more detail below, this only applies in courts-martial in which the accused was arraigned after the EO was signed.

M.R.E. 513(d): Removes the “admission or disclosure of a communication is constitutionally required” exception. As explained in more detail below, this only applies in courts-martial in which the accused was arraigned after the EO was signed.

M.R.E. 513(e), 514(e): Establishes a four-part test—similar to the U.S. v. Klemick, 65 M.J. 576 (NMCCA 2006) test—that must be satisfied before a military judge may conduct an in camera review of evidence falling within the privileges and requires any disclosure of that evidence to be narrowly tailored. As explained in more detail below, this only applies in courts-martial in which the accused was arraigned after the EO was signed.

Article 81: Includes conspiracies to violate the law of war. Only applies to offenses committed after 17 October 2006.

Article 92: Increases the maximum punishment for derelictions of duty that result in death or grievous bodily harm. Only applies to offenses committed after 16 June 2015.

Article 93: Maximum punishment increased to 2 years. Only applies to offenses committed after 16 June 2015.

Impact of Executive Order 13696 on On-Going Proceedings and Hearings

As stated in EO 13696, any non-judicial punishment proceeding, restraint, preliminary hearing, referral of charges, trial in which arraignment occurred, or other action commenced prior to the signing of the EO shall not be invalidated by the new rules and, if still in progress, may proceed as if the new rules had not yet come into effect. See also U.S. v. Nicholas, 6 C.M.R. 27 (USCMA 1952). Stated more plainly, if a discrete military justice event began before EO 13696 was signed, the rules that applied to the event when it began continue to apply until the event concludes. Therefore, if an accused was arraigned before 17 June 2015, the new rules would not take effect for that trial. The same applies to preliminary hearings convened under the procedures prescribed in ALNAV 086/14 and that began before 17 June 2015. However, the new rules do apply to the next military justice event that occurs after 17 June 2015. For example, the new rules will not apply at a preliminary hearing already in progress, but would apply to the referral and throughout the course of the trial.

60 Responses to “President signs Executive Order amending the MCM”

  1. slyjackalope says:

    Let the games begin!  I can only imagine what these Article 32 subpoenas duces tecum are going to look like and how they’re going to be enforced.

  2. RKincaid3 (RK3PO) says:

    And the rape of servicemembers due process rights continues unabated.  Politics wins and Servicemembers lose.

  3. Dwight Sullivan says:

    [Standard disclaimer:  This comment is made in my personal capacity and should not be imputed to anyone or anything else.]  In response to skyjackalope’s comment above, the President authorized subpoenas duces tecum for Article 32 purposes more than a year ago.  See Executive Order 13669 (June 13, 2014).  That came in the wake of the NDAA for FY 2012’s amendment of Article 47 to enforce failures to comply with a “subpoena duces tecum for an investigation pursuant to section 832(b) of this title (article 32(b)).”  (The NDAA for FY 2014 further amended that provision to refer to preliminary hearings.)

  4. stewie says:

    Biggest concerns I see:
     
    1. Changes to 405, but we’ve already discussed them a lot, and they could be worse. But going to lead to a lot of waived 32s now I predict, and that’s not a good thing.
     
    2. Victim unsworn. At least they allow defense counsel to see a written version of it, but what happens if/when the AV goes off script?? Can the defense rebut facts with rebuttal witnesses, just like the government can do with the accused? (I’d assume the answer is yes).
     
    3. MRE 513. The insanity to me of requiring DC to effectively know what’s in mental health records in order to get mental health records even reviewed by the military judge is ridiculous. I think a lot of MJs are going to interpret the hurdle for the defense as being a very very low one to get to in camera review, but some will not.

  5. Dwight Sullivan says:

    [Standard disclaimer: This comment is made in my personal capacity and should not be imputed to anyone or anything else.] Stewie, the Mil. R. Evid. 513 change — which was required by statute — essentially extends to all of the Services the in camera review threshold for records of psychotherapist-patient communications that has governed Marine Corps and Navy courts-martial for almost nine years.  See United States v. Klemick, 65 M.J. 576 (N-M. Ct. Crim. App. 2006).

  6. TheWritesofWeiss says:

    It’s simple: don’t have sex before marriage, during a marriage, or after a marriage….and you’ll have nothing to worry about.  

  7. astonished says:

    Don’t even think about having sex, it will be considered a hate crime next

  8. Enumerated Exception says:

    For the benefit of those who, like me, were curious as to what the Klemick standard (referenced by Mr. Sullivan, above) was:
     

    We conclude that, when the patient objects, a threshold showing is required before an in camera review of records subject to the protections of Mil. R. Evid. 513 may be ordered. Failure to recognize this logical necessity would entirely thwart the basis of this rule: to facilitate and secure “the social benefit of confidential counseling recognized by Jaffee v. Redmond, 518 U.S. 1 (1996), and similar to the clergy-penitent privilege.”  Manual for Courts-Martial, United States (2000 ed.), App. 22, at A22-44.  Since Mil. R. Evid. 513 and military case law do not define that threshold, we will review de novo the military judge’s decision using a standard similar to that of the Wisconsin Supreme Court in [Wisconsin v. Green, 646 N.W. 2d 298 (Wis. 2002)]: (1) did the moving party set forth a specific factual basis demonstrating a reasonable likelihood that the requested privileged records would yield evidence admissible under an exception to Mil. R. Evid. 513; (2) is the information sought merely cumulative of other information available; and (3) did the moving party make reasonable efforts to obtain the same or substantially similar information through non-privileged sources?
     
    This standard is not high, because we know that the moving party will often be unable to determine the specific information contained in a psychotherapist’s records.

    United States v. Klemick, 65 M.J. 576, 580 (N-M.C.C.A. 2006).
    In contrast, the new MRE 513(e)(3) will read:

     (3) The military judge may examine the evidence or a proffer thereof in camera, if such examination is necessary to rule on the production or admissibility of protected records or communications. Prior to conducting an in camera review, the military judge must find by a preponderance of the evidence that the moving party showed:
     
    (A) a specific factual basis demonstrating a reasonable likelihood that the records or communications would yield evidence admissible under an exception to the privilege;
     
    (B) that the requested information meets one of the enumerated exceptions under subsection (d) of this rule;
     
    (C) that the information sought is not merely cumulative of other information available; and
     
    (D) that the party made reasonable efforts to obtain the same or substantially similar information through non-privileged sources.

     
    It seems to me that there is at least one glaring difference between the Klemick standard for a MJ conducting an in-camera review and the new MRE 513 standard:  The Klemick standard permitted a MJ to conduct an in-camera review of records which might be “constitutionally required.”  The MRE 513 standard will only permit an in-camera review if “the requested information meets one of the enumerated exceptions” which, of course, no longer includes the “constitutionally required” enumeration.  
     
    A second difference between the new MRE 513 standard and Klemick is Klemick’s articulation of the burden of proof required of the accused in order to trigger production: “This standard is not high, because we know that the moving party will often be unable to determine the specific information contained in a psychotherapist’s records.”
     
    The impact of the new MRE 513 standard is that any argument that there remains an unstated “constitutionally-required” exception to MRE 513 has grown weaker.  Even if an accused did put forth sufficient facts to show a reasonable likelihood that communications in a record were constitutionally required, a MJ applying MRE 513 might feel compelled by the plain language of the rule to conclude that no “enumerated” exception has been articulated by the defense.  Such a finding would make an order to produce the records, much less an order to offer them for in-camera review, questionable. 

  9. stewie says:

    Dwight, I understand the rule was required by statute, and I understand Congress intended to embrace the rule in Klemick.
     
    That changes my opinion one whit, and I agree EE that as written it can lead to some results I would put forward the Klemich ruling didn’t anticipate. The last sentence from that case in Klemick cited by EE is what saved it from being overly unfair, a recognition that the standard was very low and an understanding that the defense cannot know something with much or even any detail when it cannot see the mental health records.  All Klemick does is establish that you cannot just get a blanket fishing expedition approved.
     
    This rule does more than that. And removing the constitutional exception language (while in theory a waste of time since you cannot legislatively remove something that is constitutionally required) in practice will lead to some judges not reviewing records that they might have ordinarily done if the language remained, which I have no doubt was the exact intent of removing that language in the first place.

  10. stewie says:

    Should be “not one whit”

  11. k fischer says:

    I recently had a court-martial where 513 evidence was crucial to the defense receiving a full acquittal.  Had the MJ been operating under these rules, then I believe that we would have had a difficult time in obtaining an in camera review of the mental health records. 
     
    There have been two full acquittals in a row at Ft. Benning (one panel and one MJ alone) where a defense expert testified regarding a complaining witness having or potentially having a borderline personality disorder.  In both acquittals, I believe that this expert’s testimony was crucial in obtaining an acquittal. 
     
    I invoke Gibbs’ Rule #39.  The sexual grievance industry knows that many convictions are needed to obtain Government dollars to fund their various organizations and workers.  False allegations can many times be explained by mental health issues and personality disorders.  So, if you make it harder on the Defense Counsel to obtain mental health records, then the ability to obtain an acquittal decreases. The rate of convictions goes up, and now every crazy woman can make a specious complaint when they split on the accused.
     
    I would highly recommend any defense counsel who is representing an accused who was accused of assault after he attempted to break up with the complaining witness, or in which he and the complaining witness had a rocky relationship, to attempt to obtain her mental health records.  Many times, your client is the one who is a victim of the most horrible form of abuse: a false allegations of sexual or physical abuse.  When women with a BPD are broken up with, they completely devalue the accused and start a distortion campaign to destroy the accused.

  12. stewie says:

    kf, I think defense counsel now have to take an additional step. They have to interview and talk to anyone who possibly could have heard or know about the alleged victim seeking mental health assistance or talking about any diagnoses.  I think for many judges, just knowing the records exist won’t be enough for them to review in camera.  They will need more information, and you are only going to get that from two places: the alleged victim, or someone the alleged victim talked to.

  13. k fischer says:

    Stewie, that’s true, and I hate additional steps.  But, in the military, I can foresee it being quite difficult even getting that information.  For instance, what if the accuser is an Officer who is really concerned about her security clearance, so she seeks treatment outside of the military, and does it on her own dime, so TRICARE has no record of it?  It will be really difficult to find those records.    So, potentially there could be evidence out there, but I don’t get to ask her for it or require the Government to produce it because she hasn’t told anyone about it.
     
    Perhaps one of the reasons why there aren’t as many allegations of sexual assault in the military is because those who are likely to make false allegations are discouraged from doing so because they know they will be caught in their lie.  So, lets not make them testify at an Article 32 where a good defense attorney could catch them in a lie.  Let’s not allow the Defense attorney to look at their mental health records.  Let’s give complaining witnesses attorneys, so a civilian defense attorney can’t interview them prior to charges being preferred.  These were 3 major ways I have gotten acquittals in the past.  And they are going away.  And, people who are more likely to make false allegations will have nothing stopping them from doing so because the Government will believe them (why shouldn’t they?) all the way past referral and into closing arguments.
     
     

  14. Monday morning QB says:

    I think some still continue to put the 513 cart before the horse.  Klemick  says, ” (3) The military judge may examine the evidence or a proffer thereof in camera, if such examination is necessary to rule on the production or admissibility of protected records or communications. Prior to conducting an in camera review, the military judge must find by a preponderance of the evidence that the moving party showed:   (A) a specific factual basis demonstrating a reasonable likelihood that the records or communications would yield evidence admissible under an exception to the privilege;   (B) that the requested information meets one of the enumerated exceptions under subsection (d) of this rule;   (C) that the information sought is not merely cumulative of other information available; and   (D) that the party made reasonable efforts to obtain the same or substantially similar information through non-privileged sources.”
     
    I think under this standard, the party seeking to have records disclosed (meaning produced from the medical facility for an in camera review) has to make a threshold showing that the records contain discoverable information.  The “she/he is seeing a shrink so that automatically means she/he is crazy or has made prior inconsistent statements to the treating doc” presumption rests on flawed premises.  If the movant articulates the proper showing then and only then can a judge order disclosure for an in camera review. 

  15. Amateur Hour says:

    I’m all for rapists going to jail and all, but the new RCM 1001(a) is bananas.

  16. k fischer says:

    MMQB,
     
    I don’t see how the movant can articulate the proper showing.

     
    “a specific factual basis demonstrating a reasonable likelihood that the records or communications would yield evidence admissible under an exception to the privilege”

     
    1.  If I don’t know what her records say, then how can I make a

     
     

     

  17. k fischer says:

    I don’t know what happened there, but what I wrote was brilliant.

  18. Enumerated Exception says:

    stewie has a good point:

    I think defense counsel now have to take an additional step. They have to interview and talk to anyone who possibly could have heard or know about the alleged victim seeking mental health assistance or talking about any diagnoses. 

    The difficulty with this, of course, is that military trial defense counsel lack defense investigators.  We’re adding “additional steps” to the investigative workload of lawyers who already lack sufficient personnel, resources, and access to subpoena and deposition processes which are necessary for full defense investigations.  That’s concerning.
     

  19. afjagcapt says:

    @ Amateur Hour: I assume you mean 1001A and the Victim Impact Statements? Why bananas? A number of MJs have already been permitting this as an interpretation of the existing CVRA…just like in U.S. District Court…or, more recently, as an interpretation of the right to be heard on sentence pursuant to Article 6b. What is wrong with permitting the victim…and by this point they are a “victim”…to allocute on sentence? Statements of fact can be rebutted and it’s not like there were a lot of “hard” crosses happening on victims previously. I get the weeping and gnashing of teeth on some iof the EO changes but IMO once we reach sentencing the landscape has changed and the equities tilt in favor of a process that treats the no-longer-alleged victim with near equality to the now-convicted accused.

  20. Enumerated Exception says:

    afjagcapt,
    I tend to agree that the 1001A victim impact statements are not that big of a deal, provided they are accompanied by an appropriate instruction similar to the one given in relation to the unsworn statement of an accused.
    DA Pam 27-9 provides the military judge should give the following instructions to the members to help them appropriately use an accused’s unsworn statement:

    The court will not draw any adverse inference from the fact that the accused has elected to make a statement which is not under oath. An unsworn statement is an authorized means for an accused to bring information to the attention of the court, and must be given appropriate consideration. The accused cannot be cross-examined by the prosecution or interrogated by court members or me upon an unsworn statement, but the prosecution may offer evidence to rebut statements of fact contained in it. The weight and significance to be attached to an unsworn statement rests within the sound discretion of each court member. You may consider that the statement is not under oath, its inherent probability or improbability, whether it is supported or contradicted by evidence in the case, as well as any other matter that may have a bearing upon its credibility. In weighing an unsworn statement, you are expected to use your common sense and your knowledge of human nature and the ways of the world. 
    The accused’s unsworn statement included the accused’s personal (thoughts) (opinions) (feelings) (statements) about (certain matters) (__________). An unsworn statement is a proper means to bring information to your attention, and you must give it appropriate consideration. Your deliberations should focus on an appropriate sentence for the accused for the offense(s) of which the accused stands convicted. *** It is not your duty (to determine relative blameworthiness of (and whether appropriate disciplinary action has been taken against) others who might have committed an offense, whether involved with this accused or not) (or) (to try to anticipate discretionary actions that may be taken by the accused’s chain of command or other authorities) (or) (to attempt to predict sex offender registration requirements, or the consequences thereof) (__________). While the accused is permitted to address these matters in an unsworn statement, these possible collateral consequences should not be part of your deliberations in arriving at a sentence. Your duty is to adjudge an appropriate sentence for this accused based upon the offense(s) for which (he) (she) has been found guilty that you regard as fair and just when it is imposed and not one whose fairness depends upon (actions that others (have taken) (or) (may or may not take) (in this case) (or) (in other cases)) (or) (possible requirements of sex offender registration, and the consequences thereof, at certain locations in the future). 

    I think those instructions would work, provided their modified to reference the unsworn statement of the victim as opposed to the accused, and that they are changed to account for the inequality of the interests at stake.  The right of a a citizen whose liberty the government is seeking to take to be heard before that happens is inextricably tied to the due process right to be heard.  The victim, facing no loss of an interest in liberty, has no due process constitutional right to be heard.  He or she has only a statutory right; which is therefore inherently inferior to the accused’s rights as regards unsworn statements.
    Further, since an unsworn statement is not evidence, I’d expect to see trial defense counsel raising an “arguing facts not in evidence” objection every time a prosecutor referenced victim impact in their argument after having the victim offer an unsworn victim impact statement.   Even if the prosecution also offered sworn testimony or other evidence on victim impact, I think having the victim stand up and offer non-evidence along the same lines would warrant the military judge giving a limiting instruction every single time the prosecution waded anywhere near arguing non-evidence.  

  21. Alfonso Decimo says:

    Most of these changes are positive, IMO, including the RCM 1001A victim impact statement and the MRE 615(e) standard for excluding the alleged victim from proceedings.  The practical consequence of MRE 513(e) and 514(e) should result in more investigator assets for the defense, but I am concerned that may not happen in all the services.  I disagree with the change to Article 49, limiting the MJ’s authority to order a deposition of the alleged victim.  In my experience, the one time I thought this was appropriate was exactly when the defense had no opportunity to question the alleged victim, either at an Article 32 or at an interview.  Hopefully the Appellate Defense shop will get an opportunity to challenge this unfair limitation.

  22. stewie says:

    The problem with the continual comparison in a piecemeal fashion to what the Feds do is that it fails to recognize that the military system was a, somewhat, finely tuned balance.  The accused lost some rights wrt his civilian counterparts, but gained others.  One of those others was a sentencing process skewed towards the defense.
     
    In the past, things like non-unanimous verdicts, and the other deprivations the accused in a military case suffers were not a big deal to me because the benefits more or less balanced out.  Now, as we one by one get rid of those benefits, but keep all the deprivations, to me that’s a problem.
     
    So I do think the victim unsworn is a problem because it’s another step away from that balance.  Just like the changes to 513, depositions, etc.  We now have a situation where:
     
    A victim gives a “FETI” like interview with CID with little to no details, thus little for defense counsel to cross.
    Does not testify at the 32.
    Refuses to talk to TDS counsel.
    Testifies for the first time in any real substantive manner at trial (after receiving a copy of any testimony at the 32, assuming it wasn’t waived, that she can listen to and refine her testimony to match).
    Can block any discussion of even serious mental health issues, including ones that go directly to credibility or bias or motive, so long as she doesn’t talk about them with anyone, and defense counsel cannot uncover enough detailed information to warrant a MJ to even look at the records in camera.
    Says pretty much whatever she wants on sentencing with little warning/prep time for defense.
    All in a system that doesn’t have unanimous verdicts, and a panel that has been beaten about the head and face about the importance of SHARP.
     
    So, yeah, I don’t agree that most of these changes are positive. I think they are designed to artificially increase convictions.

  23. k fischer says:

    Stewie,
     
    I re-read your post whilst playing the initial fanfare from sprach Zarathustra, Op. 30, and when I was finished I exclaimed, “My God, it’s full of stars.”  Great post. 

  24. k fischer says:

    And to piggyback on Stewie’s point:
     
    So, now that we are gutting the UCMJ of those protections for Soldiers that John Q. Public does not enjoy in the civilian world, let’s go ahead and require unanimous verdicts at courts-martial, which is a huge benefit that John Q. Public has.  When we have hung jury after hung jury, and military justice has come to a grinding halt, then perhaps Congress will realize that they should have left well enough alone and changed it back to the good ‘ole days of pre-2007.

  25. afjagcapt says:

    @ Stewie: You (as always) make good points and I agree that comparisons to other jurisdictions do ultimately have their limitations. That said, I take macro level issue with conflating the 1001A sentencing changes with an attempt at artificially increasing convictions. This blog has, and will continue to, debate the relative merits of being tried in state/USD court vs. a court-martial as it comes to the likelihood of securing a convictions, but I think that is a different question than sentencing procedure. Put more directly, I don’t think the architects of the UCMJ intended to create a system where an accused might have a higher chance of being wrongfully convicted and thus also created defense-friendly sentencing procedure in order to “remedy” that concern. If the system is so unfair in the pretrial/findings phase, the remedy should not be to create sentencing procedure that serious similar crime for serious similar crime yields (some at least would argue) lighter sentences than most jurisdictions, it should be (and I know I’ll be preaching to the choir here) to fix the pretrial/findings phase. 

  26. stewie says:

    I don’t think that was a conscious thought-process, no…I do think though it’s how the system has evolved, and I think when this system was developing folks knew that there were some issues that disfavored the accused, and one area where they could make up for that was to effectively make sentencing a defense-friendly if not defense-run show.
     
    It’s a whole-picture concept, and I think there was, up til now, little risk in designing a defense-friendly sentencing procedure.  Now we have mandatory minimums and victim unsworns.  I’m simply suggesting “that’s how the civilians do it so quit your whining” is not an effective response to those voicing, I think, legitimate concerns about these changes.
     
    Put another way, sentencing was, til now, the last refuge where the accused retained the “old advantages.”  If even that cow is no longer sacred…

  27. Alfonso Decimo says:

    Stewie – You seem to argue that we previously had a system with a finely balanced flaws on both sides.  The recent changes were directed at a narrative where legitimate victims are mistreated by the system.  The objections to the changes are directed at a narrative where wrongfully accused servicemembers are mistreated by the system.  Both narratives will continue to motivate complaints, but the lawmakers, the judges, and the appellate litigators will strive to fashion a justice system without flaws.  I didn’t have the benefit of opera playing in the background, but, yeah, I was not impressed by your post.

  28. Innocent Bystander says:

    I originally was going to post in opposition to 1001A. But now that I think about it more, I guess defense can still make its points since the rules should be relaxed by that time (or maybe they won’t be).  When she says her life will never be the same, she can’t eat or sleep, etc. then we can still rebut with screenshots of her FB and Instagram pictures of the delicious food she was about to eat and status updates about whatever silly thing #1 of 3 she posted about on any particular day after this alleged assault.
    The real problem is our guy has already been convicted by that time and received a life sentence in the form of a DD and sex offender registration, not to mention the prison time. He was likely convicted at lesser advantage with these rules because defense couldn’t explore her impulsivities from the possible personality disorder or couldn’t impeach her prior inconsistent statements because there are no prior statements. And anyone can make up a story. Any savvy member (and you don’t really have to be savvy at all) can play these rules right with 2 attorneys fighting for him/her (SVC and TC) and telling them they don’t have to turn over discovery from their phones, or their mental health records, or even fulfill the accused’s Confrontation Clause rights at sentencing.
    How about the UCI that goes on day in and day out with these cases? Servicemembers can’t even get a fair shake now from the Stars that watch over them and are responsible for their well-being. We have PHOs, WITH A PROBABLE CAUSE STANDARD, recommending non-referral and we continue to prosecute these garbage cases.
    I’m just starting to go off on a rant now, but Congress has subjugated our command to a bunch of young, drunken people who can make accusations willy nilly and nobody remembers what the hell even happened.
    Congress starts from the parental mantra of “how can I send my daughter off to the military to be sexually assaulted?” But there’s an equally powerful mantra, “how can I send my son off to the military to be falsely accused? To put his life entirely in someone else’s hand?” And wait until they learn about these new rules that absolutely railroad their sons (and daughters).  The military justice process just got its biggest black eye ever and it will be degraded because of it.
    If Congress wants to make a difference about sexual assault in the military, instead of starting with servicemembers’ rights, how about they start at the source of the problem with a message- by not selling kegerators at the exchange.

  29. stewie says:

    I think what I argued was “a, somewhat, finely tuned balance.”  I think the idea of striving for a system without flaws misses the point and isn’t possible. There are always going to be balances between competing interests, and no matter where you strike that balance, someone is going to find it flawed.  Finding the best balance you can remains the challenge, not creating a “system without flaws” and I’m not sure what that means other than your apparent belief that the peanut gallery should pipe down and let the folks in charge do their jobs. 
     
    My point was my personal belief, which I believe is not a minority one (not that that matters per se), that we had come close to achieving that balance prior to the string of almost unremittingly one-sided changes since 2007, and that said string has tipped the balance too far one way.
     
    You are free to disagree, and/or be unimpressed by such thoughts, although I think something more substantive than mischaracterizing my position then saying “not impressed” would be more…what’s the word I’m looking for…impressive.

  30. Alfonso Decimo says:

    Stewie – Fair enough. I recognize it is difficult to express complex opinions in this bumper-sticker medium. I apologize for over-simplifying your argument. My point is to validate the people in public service who are genuinely trying to craft a system of justice that is fair to all, including victims, including the accused. I have seen quite a few years of military justice evolution and I know the tinkering will continue indefinitely. The complaints will continue from all sides. Fortunately, fair-minded people will continue to have the final word, case-by-case.

  31. stewie says:

    There is no intent by me to vilify those making these decisions.  I’m sure they are trying their best, and I’m sure were I in their shoes, I’d make decisions plenty of folks would think were pretty bad.  That doesn’t mean I don’t think they are getting it wrong in this case though.
     
    I’m not sure they need to be “validated.”  Part of being in Congress or at the highest levels of the military is that you get the power to make changes. Part of having that power means you are open to being criticized in how you exercise it.  See e.g. Uncle Ben to Spiderman (paraphrasing).
     
    I will say that I’m not sure everyone in the process (I’m looking at you Congress) understands the system well enough, the nuances, the history, or the problem(s).  I think it colors their view of what a “fair system of justice looks like.”

  32. afjagcapt says:

    @ Innocent Bystander: Just a point on “the accused’s Confrontation Clause rights at sentencing;” In United States v. McDonald, C.A.A.F. found that “it is only logical to conclude that the Sixth Amendment right of confrontation does not apply to the presentencing portion of a non-capital court-martial.”  55 M.J. 173, 177 (C.A.A.F. 2001).
     

  33. Enumerated Exception says:

    afjagcapt, you said: 

    @ Innocent Bystander: Just a point on “the accused’s Confrontation Clause rights at sentencing;” In United States v. McDonald, C.A.A.F. found that “it is only logical to conclude that the Sixth Amendment right of confrontation does not apply to the presentencing portion of a non-capital court-martial.”  55 M.J. 173, 177 (C.A.A.F. 2001)

     
    You are certainly correct that McDonald makes clear that the Sixth Amendment does not require the government’s matters in sentencing to be subject to cross-examination.  But, you did leave out an important corollary contained in McDonald.  Specifically, CAAF, relying upon Supreme Court cases, concluded that while the Sixth Amendment was not implicated by outside the record evidence being introduced without cross-examination, the Fifth Amendment was still in play and that:
     

    The Constitution requires that evidence admitted during sentencing must comport with the utilitarian purpose of the DueProcess Clause, i.e., reliability, and procedural-due-process requirements. 
     

    United States v. McDonald, 55 M.J. 173, 176 (C.A.A.F. 2001)  
     
    That means that an accused may not have the constitutional right under the Sixth Amendment to cross examine a victim on his or her unsworn statement.  But, they do have the basic due process rights under the Fifth Amendment to reasonable notice, a fair opportunity to be heard, and to be sentenced only on reliable information.  
     
    “Reasonable notice” and a “fair opportunity to be heard” means:
     

    [N]otice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. 

     
    Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314 (1950).
     

    The notice must be sufficient to enable the recipient to determine what is being proposed and what he must do to prevent the deprivation of his interest.  
     

    Goldberg v. Kelly, 397 U.S. 254, 267-68 (1970); and
     

    [W]here governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government’s case must be disclosed to the individual so that he has an opportunity to show that it is untrue.

     
    Greene v. McElroy, 360 U.S. 474, 496 (1959), quoted with approval in Goldberg v. Kelly, 397 U.S. 254, 270 (1970).
     
    The amount of reliability required of the government’s presentencing information is however much will
     

    guarantee that life, liberty, or property will not be taken on the basis of an erroneous or distorted conception of the facts or the law.

     
    Marshall v. Jerrico, 446 U.S. 238, 242 (1980); Schweiker v. McClure, 456 U.S. 188, 195 (1982).
     
    It could be that, despite the lack of a right to cross-examination, those due process constraints might form a potent check on the contents of a victim’s unsworn statement – assuming the defense counsel acts to impose that check.  I’d expect to see defense counsel demanding discovery of the verbatim unsworn victim impact statement before it is offered.  Nothing short of that would meet the due process clause’s requirement of reasonable notice of “what is being proposed” and “opportunity to show that it is untrue.”  I’d argue that nothing short of advance notice will give the defense the opportunity to raise objections or prepare rebuttals to matters in the unsworn statement which might represent an “erroneous or distorted conception of the facts or the law.”  So, when one considers the due process clause’s role in all of this, the lack of a right to cross-examination might not be as big a loss as is first imagined.

  34. stewie says:

    In some cases, it won’t be a big deal no.  Specifically those cases where the victim says nothing that would have generated a cross in the first place (which is not an insignificant number of cases, maybe even over half).  In some cases, it will be.  The ability to see the unsworn statement doesn’t replace the ability to cross-examine.  What if the victim goes off-script from the verbatim version provided to counsel?  Is the MJ and DC reading it word for word ready to jump in if a single word is added or subtracted? Are they going to do that in front of the panel or in a 39(a) session?  How much advance notice does the DC get? A day? A week? Right before testifying?  The less time, the less ability to identify factual rebuttal witnesses.  I get that this is the same quandary facing TC when the accused gives their unsworn, but as I’ve argued above, sentencing is supposed to be biased in favor of the accused. 
     
    Those victim’s who might have felt circumscribe by the potential for cross, might they now feel more liberated to say what they want to?
     
    Is it the fall of western civilization? No. I still think all-in-all, it’s not a positive development.

  35. Enumerated Exception says:

    stewie,
     
    If the victim goes off script, the DC can object (before the members or in an 39a, whichever manner is appropriate under the circumstances) to the lack of notice required by the due process clause and the military judge can fashion an appropriate remedy for the violation.  That remedy might range from a continuance to a curative instruction to a mistrial as to presentencing.  It just depends on the severity of the deviation from the notice which was provided.
     
    The amount of notice required depends on the content of the victim’s unsworn.  Not to be obtuse, but, the military judge will have to ensure, given the unique circumstances of each individual case, that every accused sentenced in her court-room is afforded notice which is sufficient “to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections” and “to determine what is being proposed and what he must do to prevent the deprivation of his interest” and to ensure that “the evidence used to prove the Government’s case [is] disclosed to the individual so that he has an opportunity to show that it is untrue,” with an overall objective, which the trial judge must ensure is met, to “guarantee that life, liberty, or property will not be taken on the basis of an erroneous or distorted conception of the facts or the law.”  Where notice has not been given, the judge must try to remedy that error.  If the error is such that no remedy will ensure that the sentence is not based on a “distorted conception of the facts or the law” then a mistrial as to presentencing is appropriate.

  36. The Silver Fox says:

    I just came here to state that there is no confrontation right at an Article 32 (especially now that it’s no longer a pretrial investigation), a motions hearing, or during sentencing.  That said, defense counsel should have never been able to utilize the “constitutionally required” exception to Mil. R. Evid. 513 to obtain records merely for sentencing cross-examination.

  37. The Sivler Fox says:

    And Mil. R. Evid. 412 “constitutionally required” evidence (at trial) should have never been allowed at an Article 32. 

  38. stewie says:

    I’ve never heard of a defense attorney arguing that the only purpose for needing mental health records was for sentencing cross-examination.  Until you get the records, and see what is inside them, you have little idea whether they will be used for merits, sentencing, or both.  Usually, you believe it will be used for merits more than sentencing, since if the panel believes the accused is guilty in spite of whatever mental health issues are present in the victim, then presenting those issues again on sentencing is at best going to have little positive affect and could at worst backfire…and if you didn’t think them worthy for merits, then presenting them for sentencing has the same likely range of results.
     
    Having said that, just because there is no confrontation right does not mean there isn’t a due process right. There’s more to constitutionally required than the confrontation clause.

  39. The Silver Fox says:

    Agreed, Stewie, but the bar for due process is far lower than the Crawford trial right. 

  40. stewie says:

    It’s different, not necessarily lower IMO. And we have the added “military due process” rights that make it closer even if it is lower.

  41. The Silver Fox says:

    Disagree completely.  And are you referring to the “military due process” rights that CAAF specifically said do not exist:  “First, the AFCCA mistakenly relied on the concept of ‘military due process,’ an amorphous concept as used by the AFCCA that appears to suggest that servicemembers enjoy due process protections above and beyond the panoply of rights provided to them by the plain text of the Constitution, the UCMJ, and the MCM. They do not.”  United States v. Vazquez, 72 M.J. 13, 19 (C.A.A.F. 2013).

  42. stewie says:

    I’m referring to the military due process provided by the UCMJ and MCM that exceed in some places that afforded by the Constitution alone e.g. the confrontation clause and its applicability to sentencing.

  43. afjagcapt says:

    I’d expect to see defense counsel demanding discovery of the verbatim unsworn victim impact statement before it is offered.  Nothing short of that would meet the due process clause’s requirement of reasonable notice of “what is being proposed” and “opportunity to show that it is untrue.” I’d argue that nothing short of advance notice will give the defense the opportunity to raise objections or prepare rebuttals to matters in the unsworn statement which might represent an “erroneous or distorted conception of the facts or the law.”

    All good points, Enumerated Exception, but the rule explicitly states that it is to be provided after findings; thus, in real terms, how much notice are you going to get if we continue to roll right into sentencing? Frankly, if the upshot of this is that we start taking a meaningful delay between findings and sentencing, I’m good with that. Frequently, I feel that junior TCs gasp a huge sigh of relief at having gotten the conviction after the long nights locked in the legal office watching the poor STC try to salvage the case after having arrived 3 days before and just mail it in. If the defense wants a few days to investigate the unsworn and make sure their client has all of his 3rd grade science fair documentation in order for the I-love-me book, thus permitting the government parties to prep a better sentencing case, I (ignoring the obvious logistical/celerity issues) think that would be an enhancement of the process.
    Also, with regard to my earlier post, I never intended to suggest that due process didn’t apply at sentencing, I was merely responding to an earlier poster’s specific invocation of the Confrontation Clause at sentencing. That said, while I would never claim the knowledge/experience of most on this site and am open to learning, my understanding is in agreement with The Silver Fox that due process is a lower standard and, perhaps more importantly, a far more ambiguous protection than that provided Confrontation. 

  44. Gilbert says:

    Interestingly in a recent 513 motion I witnessed the defense specifically asked for the mental health records of a victim for the purpose of cross at sentencing. The defense hadn’t meet any of the elements of Klemick so it was easy for the MJ to deny even the in camera review.

  45. afjagcapt says:

    Silly me for trying to make a joke using strikethrough (which didn’t show up when I posted). It was supposed to read “permitting the government (with strikethrough of the word “government”) parties to prep a better case.”
    And I also forgot to space my paragraph.
    Let’s see if it works this time…

  46. The Silver Fox says:

    Really, Stewie, what part of the MCM or UCMJ applies the confrontation clause to sentencing?

  47. stewie says:

    Who said anything about either applying the confrontation clause to sentencing? I surely didn’t. I said that the fact that the confrontation clause doesn’t apply does not mean there are not other rights to the accused to sentencing that BOTH the Constitution and special military due process (as encapsulated in the MCM and UCMJ, e.g. relaxing of the rules, the clear bias towards allowing the accused to submit almost anything in E&M, the unsworn statement, the restrictions on what the government can submit, etc) do give to the accused.

  48. The Silver Fox says:

    Well, then, you ought to choose your words more carefully.  You just said:  “I’m referring to the military due process provided by the UCMJ and MCM that exceed in some places that afforded by the Constitution alone e.g. the confrontation clause and its applicability to sentencing.” (emphasis added.)

  49. stewie says:

    Which says nothing about applying the confrontation clause to sentencing.

  50. The Silver Fox says:

    And the RCM and UCMJ’s additional procedural protections have nothing to do with Fifth Amendment Due Process or the “constitutionally required” exceptions to Mil. R. Evid. 412 or 513.

  51. stewie says:

    Didn’t say that either, not really sure what you are going on about at this point. I said the combination of all of these sources of rights TOGETHER led to a military accused having more rights than is just based in the Constitution e.g. the rights conferred solely by the confrontation clause.  There are more rights at sentencing that deal with sentencing witnesses than just the confrontation clause in the military.
     
    Civilian jurisdictions don’t even necessarily have anything remotely resembling what we do at sentencing, certainly not much in the way of rights. I’m struggling to see how anything I’m saying is all that controversial or hard to follow but you seem determined to find it for some reason.

  52. The Silver Fox says:

    If you scroll up and look at my posts, I piped up about 412 and 513’s constitutionally required exceptions, not your unsupported assertion that sentencing “is supposed to be biased in favor of the accused.”

  53. stewie says:

    So you think it’s just my assertion that the rules for sentencing up til now strongly favored the accused??
     
    Wow.
     
    1. The rules for aggravation v. the rules for E&M, which one is broad and permissive and which one is narrow?
    2. Relaxing the rules is automatic for the defense, discretionary for the MJ for the government.
    3. Unsworn statement. No corollary I’m aware of in civilian practice, and the accused can even talk about otherwise inadmissible things.
    4. DESPITE no confrontation clause applicability, the MJ still has the right to force the government to give defense live witnesses where the MJ determines it complies with 1001(e)(2)
    5. Rehab potential…government can barely talk about, defense can go further.  Same for recommendations on remaining in the military or serving with again.
    I could go on, but point is, sentencing is highly defensive favored.

  54. The Silver Fox says:

    Well, as to that point, I agree that some military sentencing rules were very favorable to the accused–far more favorable than most state jurisdictions.  But, that incongruity is all the more reason why the rules needed to be harmonized with the majority of other jurisdictions and why sentencing rules aren’t at all “supposed to be biased in favor of the accused.”  After all, the bad guy has already been found guilty.  

  55. stewie says:

    And as I stated above, as we remove all of the rules in favor of the accused, while leaving all the ones not in favor of the accused in, it leads to an unbalanced system, even if this particular change or that particular change, in a vacuum, can be meritoriously argued.

  56. k fischer says:

    Gilbert,
     
    You said:

     
    Interestingly in a recent 513 motion I witnessed the defense specifically asked for the mental health records of a victim for the purpose of cross at sentencing. The defense hadn’t meet any of the elements of Klemick so it was easy for the MJ to deny even the in camera review.
     

    It must not have been my detailed counsel’s motion in a recent acquittal at Ft. Benning because he argued that 513 evidence was relevant for sentencing if she stated that she suffered some sort of mental distress or injury from her husband raping her during sentencing and that it needed to be produced, so he could see how aggravating the sexual assaults were, if the panel was dumb enough to actually believe his lying wife.  The Defense needed to know how badly she was suffering mentally based on her medical records.  And, the MJ ordered that her records be produced for an in camera review.

  57. Gilbert says:

    K FischerProbably not since Klemick didn’t apply to an Army case. But I would love to see those motions.

  58. Lieber says:

    the right of allocution for the accused is recognized in most federal courts and I think some state courts.  I don’t believe SCOTUS has dealt with it.

  59. k fischer says:

    Gilbert,
     
    Google kyle fischer military lawyer ft. benning, get my e-mail address, and send me an e-mail.  I will reply with the motions.  If you don’t want me to know who you are, then create a fake Hotmail account and let me know you are gilbert.  Tell me you want your identity in the vault, then I will keep it in the vault, so you do not have to undergo the nutroll of creating a fake account.  And, by jove, you are right, it was an Army case, so I guess Klemick did not apply.  And, there are many things I would “love” to see; motions are not one of them……j/k