CAAF decided the Air Force case of United States v. Nettles, 74 M.J. 289, No. 14-0754/AF (CAAFlog case page) (link to slip op.), on Monday, July 6, 2015. Declining to apply the requirement for physical delivery of a discharge certificate to reservists not on active duty, CAAF concludes that the appellant was validly discharged on the effective date of his self-executing discharge orders and was not subject to trial by court-martial, despite the fact that his command attempted to retain him in a military status pending trial. The court reverses the decision of the Air Force CCA and the appellant’s sexual offense convictions, and dismisses the charges.

Judge Stucky writes for a unanimous court.

CAAF granted review of a single issue in this case:

Whether the Air Force had personal jurisdiction over Appellant at the time of his trial.

In 2013 the appellant (a captain in the Air Force Reserve) was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of two specifications of conspiracy to commit indecent acts, one specification of conduct unbecoming an officer by engaging in sexual intercourse in the presence of a third person, and a second specification of conduct unbecoming an officer by engaging in sexual intercourse and sodomy in the presence of a third person (he was acquitted of an allegation of rape). He was sentenced to confinement for two months, a reprimand, and to be dismissed.

The charges related to events that occurred in May 2007, while the appellant was on active duty. Three months later, in August 2007, the appellant left active duty and entered the Air Force Reserve. Nearly five years later, in March 2012, he was notified that he was twice passed over for promotion to major and, as a result, was to be separated from the reserves on October 1, 2012, pursuant to 10 U.S.C. § 14505.

But in May 2012, the appellant was charged with the offenses at issue. Because of the charges:

The Secretary of the Air Force approved the recall of Appellant to active duty for the purposes of court-martial on July 18, 2012. The special court-martial convening authority’s staff judge advocate asked the Air Reserve Personnel Center (ARPC) to place an administrative hold on Appellant so that he would not be discharged from the service, but the ARPC never did so. Accordingly, a discharge order was generated on September 25, 2012, with an effective date of October 1, 2012.

Slip op. at 2. However, the discharge order was never formally delivered to the appellant because of a shortage of a special card stock used to print an accompanying certificate. Then, “in early November, 2012, the convening authority learned of the erroneously generated order, contacted ARPC, and ARPC rescinded the prior discharge order.” Slip op. at 3.

CAAF’s jurisprudence generally requires three things in order for a discharge to sever personal jurisdiction for a court-martial:

(1) a delivery of a valid discharge certificate; (2) a final accounting of pay; and (3) the undergoing of a “clearing” process as required under appropriate service regulations to separate the member from military service.

Slip op. at 3-4 (quoting United States v. Harmon, 63 M.J. 98, 101 (C.A.A.F. 2006)). These requirements are “based on a civil personnel statute, 10 U.S.C. § 1168(a) (2012).” Slip op. at 4 (citing United States v. Hart, 66 M.J. 273, 275 (C.A.A.F. 2008)). The delivery requirement is at issue in this case. However, delivery cannot “be effective if it is contrary to expressed command intent.” Slip op. at 4. Further, delivery generally requires “actual physical receipt” of the discharge. Slip op. at 5. Under the facts of the case, neither command intent nor actual receipt favor the appellant.

But CAAF “decline[s] to employ the 10 U.S.C. § 1168(a) framework here.” Slip op. at 5.

Judge Stucky begins his analysis by noting that “the discharge and delivery jurisprudence that has been created for active duty personnel is of questionable applicability to the reserves, and there are strong reasons for taking a different approach in this context.” Slip op. at 6. Specifically, Judge Stucky focuses on the needs for certainty and finality with respect to military status:

The overarching interest implicated by the law of personal jurisdiction, and especially discharge jurisprudence, is the need — of both servicemember and service — to know with certainty and finality what the person’s military status is and when that status changes. See United States v. Howard, 20 M.J. 353, 354 (C.M.A. 1985) (emphasizing significance of determining the moment of discharge, as this is the moment that the “transaction is complete [and] that full rights have been transferred”).

Slip op. at 6-7. Because of these interests, CAAF rejects outright the physical delivery requirement for the reserve components:

We conclude that that these weighty interests are frustrated by a rule requiring the physical delivery of a discharge certificate for reservists. A reservist relies on the mail and the service’s administrative apparatus to process the certificate and deliver it to him. A panoply of intervening forces can work to prevent this, as is well illustrated by this case, but the member’s status ought not hinge on their occurrence or nonoccurrence. Because certainty of status is so crucial in the discharge context, we decline to apply the physical delivery rule to the reserve components.

Slip op. at 7-8. In its place CAAF looks to the reason for the discharge:

we think it more appropriate to apply the statute that actually discharged Appellant: 10 U.S.C. § 14505 (2012) (“Effect of failure of selection for promotion: reserve captains of the Army, Air Force, and Marine Corps and reserve lieutenants of the Navy”). The statute reads:

[A] captain on the reserve active-status list . . . who has failed of selection for promotion to the next higher grade for the second time . . . shall be separated . . . not later than the first day of the seventh month after the month in which the President approves the report of the board which considered the officer for the second time.

Id. Notably, no mention is made of delivery or even of a certificate. Instead, the statute contemplates a definite date and provides for its computation. This provides finality and certainty, and insulates the process from the potential problems associated with administrative oversight or the mail. Accordingly, in cases of reserve personnel with self-executing discharge orders issued pursuant to statute, it is the effective date of those orders that determines the existence of personal jurisdiction — not physical receipt of a piece of paper. The law has generally moved beyond imbuing formalistic acts with such significance, and we should not require what amounts to livery of seisin to effectuate a discharge.

Slip op. at 8-9 (omissions in original) (emphasis added). A footnote kindly defines livery of seisin:

“[T]he ceremonial procedure at common law by which a grantor conveyed land to a grantee . . . . The ceremony involved going on the land and having the grantor symbolically deliver possession of the land to the grantee by handing over a twig, a clod, or a piece of turf.” Bryan A. Garner, A Dictionary of Modern Legal Usage 534 (2d ed. 1995); see generally Frederic William Maitland, Mystery of Seisin, 2 L.Q. Rev. 481 (1886).

Slip op. at 9 n.4. And while this conclusion appears to be narrowly-tailored to the facts of this case, Judge Stucky ends with a broader holding:

We hold that, in cases where the accused is not on active duty pursuant to an administrative hold on the date the self-executing order sets for a reservist’s discharge, he is not subject to court-martial jurisdiction.

Slip op. at 10.

Yet for its breadth, CAAF’s ultimate holding embodies an unusual fact of this case. After the appellant was charged, the Secretary of the Air Force authorized his recall to active duty for the pretrial and trial process. Yet despite this authorization, the convening authority elected not to recall the appellant outright, but instead only recalled him for discreet events (the Article 32 investigation, pretrial sessions, and then the actual trial proceedings). Because of this, the appellant “oscillated between brief periods of active duty and lengthy periods in a nonduty status.” Slip op. at 10.

It is those oscillations that are crucial to CAAF’s ultimate holding because the appellant was not on active duty on the statutory date for his discharge from the reserves, and it is clear that had the appellant been permanently recalled and retained on active duty for the purpose of trial, then the result in this case would be very different.

Case Links:
AFCCA opinion
Blog post: The AFCCA rejects constitutional protections for threesomes
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview
Oral argument audio (enhanced)
CAAF opinion
Blog post: Opinion analysis

42 Responses to “Opinion Analysis: Holding that reserve discharges may self-execute, CAAF finds no personal jurisdiction in United States v. Nettles, No. 14-0754/AF”

  1. TC (not Trial Counsel) says:

    Let me throw out a real life senario.
     
    Airman Struggles was under investigation in 2004.  His ETS discharge was July 17, 2004 (technically on the 16th since it fell on a weekend).
    The command found out about his pending ETS and preferred charges that Friday, 16th of July 2004.
    Airman Struggles had separation orders discharging him into IRR.
    These orders were never rescinded.  Airman Struggles was technically discharged and had to be paid via Treasury Checks for a few months until he was put back onto DEERs.These checks did not start coming about until a month after he was discharged.
    Struggles has (1) out processed (forms signed by the CC/CO) (2) Final accounting of pay (3) Discharge Orders that were never rescinded and (4) no DD214 for the 2004 “discharge”.
    What would be the effect, if any of CAAF’s ruling?

  2. Zachary D Spilman says:

    None.

    This is a case about a discharge of a reservist not on active duty. When Nettles was discharged from the reserves, he no longer had any military status. 100% pure civilian.

    Your Airman Struggles was released from active duty and transferred to the reserves, meaning he was still in the Air Force and subject to recall for trial by court-martial (under Articles 2(d) and 3(a)).

  3. Lieber says:

    I can’t help but think that CAAF was more willing to reach this result because it was a case dealing with consensual threesomes.

  4. Advocaat says:

    What Lieber said.  I think the oscillations that most impacted CAAF in this case involved the consecutive threesomes (or trains, as one of the parties delicately put it) that formed over a wedding weekend.  I’m not sure why the court generically stated the accused was convicted of “various sexual offenses” when the AFCCA opinion made it clear he had been acquitted of rape, conspiracy to commit rape, and assault consummated by a battery.  Had there been an actual rape conviction, I’d bet the farm CAAF would have held personal jurisdiction existed.

  5. Michael Lowrey says:

    Lieber, no, that’s not it. Nettles was one of about 1,000 people who the government claimed were still in the reserves because they hadn’t yet received their pretty suitable-for-framing commemorative discharge document. The hold up? The Air Force had run out of the right kind of paper to print them on. If you listen to the oral argument, it’s clear that the CAAF judges thought that this was completely absurd that clearly inspired them to word their decision the way they did.

  6. Zachary D Spilman says:

    I agree that the threesome issue is very interesting, Lieber and Advocaat. After all, it’s what caught my attention in the CCA’s opinion. However, I strongly disagree that CAAF introduced a new rule about when court-martial jurisdiction ends as an end-run around the threesome issue. 

    I encourage you to listen to the oral argument in this case. The court was (and, from Judge Stucky’s opinion, is) very concerned about clearly establishing when a person is subject to military discipline (and the concomitant loss of certain constitutional rights). Judge Stucky’s opinion includes this passage (quoted in my analysis above):

    The overarching interest implicated by the law of personal jurisdiction, and especially discharge jurisprudence, is the need — of both servicemember and service — to know with certainty and finality what the person’s military status is and when that status changes. See United States v. Howard, 20 M.J. 353, 354 (C.M.A. 1985) (emphasizing significance of determining the moment of discharge, as this is the moment that the “transaction is complete [and] that full rights have been transferred”).

    Slip op. at 6-7 (emphasis added). The citation to Howard is significant, as in Howard the court found that jurisdiction (over an active duty soldier) was terminated, with the following analysis:

    Our examination of the statutory language and the legislative history of 10 U.S.C. § 1168 shows no indication that Congress intended to change the longstanding historical precedent for delivery of the discharge certificate to the time when a servicemember is released from active duty and court-martial jurisdiction terminates. The discussion to R.C.M. 202 , Manual for Courts-Martial, United States, 1984, supports this finding.

    “Delivery” in this context has significant legal meaning. It shows that the transaction is complete, that full rights have been transferred, and that the consideration for the transfer has been fulfilled. If, on the other hand, the delivery of the discharge certificate has been accomplished by fraud, Wickham v. Hall , 12 M.J. 145 (C.M.A.1981) (Fletcher, J., concurring in the result; Everett, C.J., dissenting); Wickham v. Hall, 706 F.2d 713 (5th Cir.1983), or if the servicemember remains in continuous and uninterrupted service, as when the discharge is delivered for the sole purpose of effecting a reenlistment, United States v. Clardy, 13 M.J. 308 (C.M.A.1982), then the delivery loses its legal significance.

    Paragraph 1-31(d), AR 635-200, would have authorized the commander to retain appellant within his command until midnight on the date of discharge. However, the commander made an informed decision to allow appellant to be discharged at an earlier time when he authorized him to pick up his discharge certificate, as well as his DD Form 214 and travel pay, and allowed him to be released from the boundaries of the military reservation before any action was taken with a view to trial by court-martial. United States v. Meadows, 13 M.J. 165 (C.M.A.1982) ; United States v. Douse , 12 M.J. 473 (C.M.A.1982). Consequently, a court-martial no longer had in personam jurisdiction to try appellant for the charged offenses.

    20 M.J. at 354-355.

    The Government’s argument in this case was an extension of the uncontroversial notion that a person on active duty remains on active duty until validly discharged (which requires delivery of a discharge certificate). Put simply, the Government’s position was that a person in the reserves remains in the reserves until they receive a discharge certificate. But, as Judge Stucky noted, this is a delicate thread on which to hang court-martial jurisdiction, because of the significant differences between active and inactive service:

    A reservist relies on the mail and the service’s administrative apparatus to process the certificate and deliver it to him. A panoply of intervening forces can work to prevent this, as is well illustrated by this case, but the member’s status ought not hinge on their occurrence or nonoccurrence. Because certainty of status is so crucial in the discharge context, we decline to apply the physical delivery rule to the reserve components.

    Slip op. at 7-8 (emphasis added).

  7. Advocaat says:

    I stand by my bet.  It’s easy to be inspired by bureaucratic absurdities of the reserves when very little is at stake.  Just like it’s easy to bet a farm that is actually more of a community garden plot.

  8. TC (not Trial Counsel) says:

    Thanks Zach, I could not open the pdf of the opinion.  Seems like a reasonable decision.

  9. Lieber says:

    It sounds like I do need to listen to the argument.  Nonetheless, being “very concerned about clearly establishing when a person is subject to military discipline (and the concomitant loss of certain constitutional rights)” integrates nicely when we’re talking about something that is only an offense in the military (and shouldn’t be one in the military either post-Lawrence).

  10. Chuck Bass says:

    Interestingly, in US v. Watson, 69 M.J. 415 (CAAF 2011), CAAF applied the three-prong King analysis for discharge (1. receipt of discharge certificate; 2. final accounting of pay; 3. completion of clearing process) to the case of an reservist officer.  Nettles represents a reversal of how CAAF applied the existing law in Watson, with CAAF now saying that the delivery of a discharge certificate is not a requirement for discharge in the case of a reservist. 
    It did not help the government that Nettles did not receive his discharge certificate because the Air Force Reserve administration was incompetent, but I too can’t help but wonder if the result would have been different if Nettles was convicted of something other than having a threesome.
     

  11. Bassomatic says:

    A better factual background in this opinion would have been helpful. On page 3, we learn that appellant’s court-martial occurred between January and February, 2013. Yet on page 10, in a footnote, we learn that the court-martial actually commenced in October, 2012, when appellant was arraigned.

    Also, aren’t certainty and finality important to all servicemembers. In today’s electronic and digital world, not sure why reserves and regulars should be treated differently with respect to the delivery of a discharge.

    What really concerned me was footnote 3 where CAAF stated “The law of discharges for the purposes of criminal jurisdiction is judicially created, and therefore we are free to modify it….” Seems to me the law should be created by Congress and interpreted by the judiciary.

  12. Sheila L says:

    Haven’t read the decision only this summary, which didn’t make it clear that it was a consensual threesome – not until your comments.  Accordingly, I was evaluating the decision without that knowledge and I think it was both valid and “good”.  I was a reservist who spent significant time on active duty and was eventually medically evaluated and retired from active duty.  I think the interesting/dispositive thing is that the service could have placed him on active duty orders but chose not to (trying to save a buck or keeping the officer from receiving the paycheck except when they couldn’t avoid it) and the unintended/unanticipated consequence is the danger of losing personal jurisdiction. Now that they know they can accidently and permanently lose jurisdiction, they will probably bite the bullet and put the accused on orders until they have a valid admin hold document to insure continuing jurisdiction.

  13. Feres says:

    So… Mr. Nettles was a civilian when various military officers denied him the freedom of movement, freedom of association (or disassociation as the case may be), the right to a grand jury, the right to a petit jury, etc., both pretrial, during trial, and in post-trial confinement.  It would seem that he is not Feres barred from bringing a wrongful imprisonment suit.  It would be interesting to see him pursue such a claim.  Instilling some personal accountability upon the individuals officers involved in this unjustified deprivation of liberty would encourage judge advocates and commanders to be a little more careful in the future when they are asked to rely upon and advance novel arguments asserting that an individual is subject to military authority and the loss of liberty that comes with such a status.  A little personal accountability in cases like this wouldn’t hurt the military justice system a bit.

  14. Lieber says:

    Feres,
    That’s not fair.  Even though I don’t think this case should ever have been prosecuted, there was certainly a good faith basis at the time for the relevant CoC and their legal advisors to believe that they had jurisdiction at the time. 

  15. stewie says:

    Agree with Lieber…that’s a bit out there Feres.

  16. TC (not Trial Counsel) says:

    ……especially when CAAF explicitly stated they are free to modify the law at whim, and that their prior holdings would have established jurisdiction in this case.
     
    A better question is since “Mr. Nettles” was brought back into the service for this court-martial are they going to issue out another DD214 adding his service, and what effect could it have on his ability to stay in the military?  He was already out the door before, now would the military be on the hook to promote him and give him more time in service/grade?  Just spit-balling here.
     
    Or do they just pretend nothing happened, no additional dd214, no promotion?

  17. The Silver Fox says:

    Seisin. 

  18. DCGoneGalt says:

    Silver Fox:  No one wants seisin without the formalistic pomp of the “livery of”.

  19. k fischer says:

    Feres has a good point.  Quite frankly, I wouldn’t, and I’m sure anyone else on this thread, wouldn’t give a rat’s rear-end about any “good faith basis” for making someone not under their jurisdiction subject themselves to said jurisdiction to be prosecuted for a sexual assault offense when the powers to be don’t have the jurisdiction to do this.  I’d be sitting in the accused’s chair saying this trial is a freaking prison on the planet Bulls*** in the galaxy of sucks camel……..nevermind…….
     
    If the Government made such a mistake, then the Government should not be covered under Feres.

  20. wowzers says:

    Accountability for the govt and the chain of command? I guess this forum has attracted some comedians now. 

  21. k fischer says:

    Pot,
     
    I’ve been a comedian on this forum well before you showed up and began Wowzering everybody.
     
    v/r
     
    Kettle

  22. k fischer says:

    Seriously, here is a case that addresses jurisdictional issues under Feres.
     
    While we think it clear that at least some equitable claims relating to military service are not barred by the Feres doctrine, this case does not require us to ascertain Feres‘s exact bounds. Here Brannum asserted that his due process and other rights were violated by the military taking actions against him in excess of its jurisdiction under the Uniform Code. This jurisdictional claim falls squarely within the Supreme Court’s decision in Schlesinger v. Councilman, 420 U.S. 738, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975). There the Court held that the Article III courts had jurisdiction to entertain an Army captain’s suit seeking an injunction against pending court martial proceedings based on conduct that he claimed was not “service related” and thus not within the court martial jurisdiction. Id. at 740, 744–53, 95 S.Ct. at 1304, 1306–11. See also McKinney v. White, 291 F.3d 851, 853 (D.C.Cir.2002) (summarizing Schlesinger). In light of Schlesinger, the Feres doctrine cannot preclude equitable suits challenging military jurisdiction under the Uniform Code.
    Brannum v. Lake, 311 F.3d 1127, 1130 (D.C. Cir. 2002)
     
    But, the Court did affirm the dismissal of his prayers for compensatory and punitive damages under Feres.  Of course, this dealt with an Article 15. Wouldn’t Nettles have to appeal to the Supreme Court if C.A.A.F. showed no love on the jurisdiction issue? I’m not an appellate lawyer.

     

  23. Feres says:

    Lieber,
    You said:

    That’s not fair.  Even though I don’t think this case should ever have been prosecuted, there was certainly a good faith basis at the time for the relevant CoC and their legal advisors to believe that they had jurisdiction at the time. 

     
    That seems to me to be a question that a civilian jury in a Bivens suit would be well-equipped to answer.   I think they might not be as forgiving as you on he question of whether these federal officials were acting in good faith when they set about to force a man into military service against his will to face a mock trial before officers hand picked by the prosecuting authority on the imagined offense of having a consensual threesome.  They might see fit to award damages against such federal officials in their individual capacities.  I think threre is a certain justice in that.  If you’re going to force a man into military servitude, deprive him his Constitutional rights, and imprison him on a b.s. “offense,” then you’d better be careful to be right on the question of jurisdiction.

  24. Tami (a/k/a Princess Leia) says:

    I think CAAF got it right.  There is a logical reason to treat reservists differently from active duty.  Status shouldn’t depend on the government’s preference for a particular piece of paper, or a preference to send orders with the certificate.  We are also dealing with the fact that he wasn’t kept on active duty for the duration of his court-martial..  Finally, I think the order to be separated from the reserves, by direction of POTUS, is a higher authority than recalled to active duty by order of SECAF.
     
    In this particular choice, given the choice by the government to recall Nettles to active duty for bits and pieces of his court-martial, the separation came before recall for the trial.  By the time of trial, Nettles was a “civilian civilian.”
     
    I don’t think it makes a difference what Nettles got “convicted” of–the nature of the crime doesn’t change jurisdictional authority.  CAAF hasn’t hesitated to reverse convictions for child porn based on illegal searches of computers at JPED or snooping through a judge’s personnel file in violation of the Privacy Act.  AFCCA made it clear that the offenses occurred in May 2007.  I think it did matter to CAAF that they were bumping up against the statute of limitations (perhaps the reason he was charged with rape, even when a victim said the sex was consensual).
     
    As far as what Nettles could have done to prevent the court-martial, perhaps he could have gone into federal court to get an injunction?  I doubt he would have been successful, the federal court would probably have said his remedy was to file a motion to dismiss for lack of jurisdiction.  I would be very interested in him filing a lawsuit for damages now that this case has been resolved favorably.  Court-martialing someone for rape simply to do an end runaround of the statute of limitations seems like bad-faith to me.
     
    @Bassomatic, Congress did create the law on discharges–Congress requires “discharge” from active duty.  However, how and when that “discharge” actually occurs or becomes effective was judicially created–discharge ready for delivery, final accounting of pay and allowances (which requires the final pay and allowances are ready for delivery), and installation clearing.

  25. k fischer says:

    Feres,
     
    Nettles might find some love in the 10th Circuit.
     
    Servicemember’s receipt of discharge did not effect an early discharge, and thus, he was on active military duty at time of alleged injuries while he was in military prison serving sentence for murder and Feres barred his Bivens claims; fact that servicemember took terminal leave prior to scheduled separation date was insufficient to accelerate discharge given that terminal leave could be cancelled at any time and servicemember ordered to report to duty, record did not support claim that he received a final accounting of pay, and there was no evidence that he underwent requisite clearance process.
    Paalan v. Nickels, 17 Fed. Appx. 930 (10th Cir. 2001)(unpublished)

     
    Seems that Nettles was not military, so Feres might not bar a Bivens claim in the 10th.

  26. stewie says:

    Mock trial? The first assumption you make is that they acted in contravention to current law. CAAF specifically says, they did not. CAAF changed the law/interpretation.
     
    When you are following current law, and CAAF says in fact you were following current law, then how pray tell are you not acting in good faith?
     
    They charged the guy with a sexual assault yes? He was convicted of minor “BS” offenses, but he wasn’t recalled for those offenses, he was put on active duty for the sex assault charge.
     
    I think this is a fair result, but I think the idea that somehow the government is some evil entity here is quite far-fetched.

  27. Feres says:

    stewie,
     
    Yes, a mock trial.  The federal officers facing a suit for civil damages will receive an actual trial – with 12 jurors selected at random from the district and in a manner to better ensure they are a representative cross-section of the district.  Then, they will need to be unanimous in order to award damages.  In contrast, the federal officers facing such trials subjected Mr. Nettles to a mock trial when his very liberty was at stake, and eventually actually taken.  Unlike the federal officer defendants, Mr. Nettles faced “trial” before less an 12 “jurors” who were hand-picked by the same officer who charged him with these imagined offenses, and they were not even required t be unanimous.  So, yes, a “mock trial.”  Even though liberty itself was at stake.   A good plaintiff lawyer would make sure the jury for each of these Bivens defendants understood that they are receiving more due process than they afforded Mr. Nettles on the imagined offenses they levied against him to send him to prison. 

  28. Dwight Sullivan says:

    [Standard Disclaimer:  This comment is made in my individual personal capacity and should not be imputed to anyone or anything else]  See Fed. R. Civ. P. 48(a), (b)  (“A jury must begin with a least 6 and no more than 12 members . . . .  Unless the parties stipulate otherwise, the verdict must be unanimous and must be returned by a jury of at least 6 members.”).

  29. stewie says:

    Ah, I see…so ALL courts-martial are “mock trials” to you. That puts things into perspective for me, thanks.

  30. Feres says:

    stewie,
     
    Nice veiled, passive-aggressive ad-hominem attack there.  Care to make a coherent argument as to how Nettles’ court-martial panel was, in your opinion, equal in reliability to the jury which would try his Bivens defendants?  If the two forums really are equal, then I presume you wouldn’t have a problem with allowing Nettles to hand-select the members of the jury who would decide the case against the Bivens defendants?  And you would agree that those jurors should not have to be unanimous to award damages to Nettles?  If you balk at that but defend courts-martial, I’d love to hear how you reconcile those positions.  I honestly wish I could.  

  31. Not Feres says:

    Feres,
     
    I don’t defend court-martials or hack attorneys.  But let me say this, stewie’s point was that the court-martial is not a “mock trial”.  I think he is right in the sense that the conclusions, while often forgone are not set in stone.  There is an appellate system and as flawed as it is there is still the possibility of relief from plainly erroneous convictions.
     
    Equal?  No, but you are changing the argument.  A Show/Mock-trial?  Again no.
    Brutal?  Yes.  Susceptible to politics?  Yes  Hack judges?  Yes.  Unethical prosecutors?  Yes, just like civilian trials.
     
    Is it really different from your local County court?  Where you get a judge that runs billboard ads how he will be “tough on crime”.  Nope.  Except in a County courtroom you stand a chance of the charges simply being dropped because the ASA or Police are simply lazy.  Or the complaining witness does not show up.
     
    In sum, while court-martials are indefensible and not comparable in many respects to a civilian trial they are not totally devoid of fairness and I struggle to find the differences in fairness between a CM that has an ADC that has 70 cases a year vs a public defender who has 70 active cases at one time.
     
    Or county judge “hang them high” vs judge hand picked by TJAG.

  32. stewie says:

    Veiled? I thought it was quite obvious. I’ll have to try harder next time.
     
    It wasn’t “ad hominem” either by the way. I’m attacking your position, not you personally. Your position that all courts-martial are show trials or mock trials because they are not “equal” to civilian trial is a laughable position.  Arguments that courts-martial should be “equal” to civilian trials for reason A or B are not laughable and worthy of discussion, but that’s not the discussion you appear to be engaged in.
     
    If you’d like to engage in said discussion, feel free, I have my thoughts on the matter I can share.  There are pluses and minuses to courts-martial vice civilian trials, and all-in-all, not sure which one is overall better. I do fear the remove of only the pluses with recent legislation is making it easier to say civilian trials, but that’s a far, far cry from a “mock trial.”

  33. Feres says:

    Not Feres,
     
    Fair points.  I suppose calling courts-martial “mock trials” might be harsh; though I’m not sure it is not apt – despite your very valid counterpoints.  The lack of a grand jury process is concerning – perhaps if one had been convened Nettles would have never been prosecuted for a consensual threesome to begin with – much less convicted.  The lack of prosecutorial discretion being vested in a person trained in the law and accountable to licensing discipline is concerning as well.  Perhaps a professional prosecutor would have found a better use of scarce prosecutorial resources than trying to imprison a man for a consensual threesome.  The lack of an inclusive venire and the lack of a randomly selected panel are concerning because if civilians had been on the panel – even as a minority – they likely would not have convicted and sent a man to prison for a consensual threesome.  The lack of a unanimous verdict requirement is concerning because it permitted voices of reason on the panel to be ignored – resulting in the imprisonment of a man for a consensual threesome. These are all are very concerning deficiencies Mr. Nettles would not have faced had military authorities given him civilian due process – as he was Constitutionally entitled to receive.  The fact that such a system was able to deprive Mr Nettles of his freedom without so much as establishing jurisdiction is astonishing.  It’s a farce – indefensible.  Mr Nettles should be made whole by the livelihood of the federal employees who authored the harm that was done to him through nothing more than lawlessness under the color of “military justice.”

  34. stewie says:

    What makes a grand jury better than an article 32? No defense participation at all, and the government controls the information received… As bad as 32s are becoming they are still better than a grand jury.
     
     
     

  35. Feres says:

    stewie,
     
    A grand jury is preferable because: 1) it is comprised of a group of people rather than one person, 2) the grand jurors are independent men and women without connection to the parties while the PHO is appointed by the prosecuting authority, 3) the grand jury’s decision is binding where the PHO merely makes a recommendation which is disregarded regularly when it does not comport with the prosecuting authority’s desires, 4) grand jurors have the Constitutional right to engage in the practice – essential to imposing prosecutorial discipline in a democratic society – of nullification.  A PHO does not have that power.   The government power to make a person face trial needs to be subject to the consent of the people; that doesn’t exist in the military justice system.  In short, a grand jury is preferable to a preliminary hearing under Art 32 because this country is a republic.  Allowing the federal government to prosecute Nettles, a civilian, without establishing the consent of the People in that endeavor was un-American.

  36. stewie says:

    Counterpoints:
     
    1. Those group of people see nothing from the defense or the accused, nor do they see any extenuating information. All things being equal, having one person see info benefiting both sides is preferable to me to a group of people seeing one side.
     
    2. the process is controlled by the prosecutor.  There’s a reason it’s said that a grand jury can indict a hand sandwich, and it isn’t because the grand jury process is thorough, extensive, or remotely guaranteed to get to the truth.  Apparently, a group of independent men and women can be made to indict whomever the prosecutor wants (or in some cases not indict someone they don’t want) which kind of diminishes both of your first two points pretty significantly.
     
    3. Given points one and two, your point three loses a lot of weight, and it isn’t really true since if a GJ doesn’t indict, the prosecutor can just hold another grand jury (and another) until they do get an indictment…so not binding so much as an inconvenience.
     
    4. The discovery advantages alone of an Article 32 can be invaluable to defense at trial, something you don’t get at a GJ.
     
    5. Just so I’m clear, if CAAf had said, in accordance with prior case law on this subject, we think what the government did here was fine, then you’d think differently?  I’m confused at the vehemence of the government trying a sexual assault case, relying on clearly established prior case law for jurisdiction.
     
    all in all, I find little comfort in a grand jury knowing how the process can be and is manipulated by prosecutors to the point that indicting a ham sandwich is what the go-to euphemism is for said process…theoretical discussions of groups of people versus one, possible nullification, and “binding” recommendations notwithstanding.
     

  37. k fischer says:

    Yeah, the fact that a grand jury is a group of people vice one person at the article 32 does not hold much weight with me, either, particularly where the DA or USA controls what evidence a grand jury hears and there is no right of confrontation or a right to present your own evidence.  Also, the grand jury will partially be made up of some extremely dull people who do what the DA says.  As a defense attorney, I would opine that an Article 32 provides, well…at least it used to in sexual assault cases, far more rights to the accused than a grand jury. 

  38. stewie says:

    Don’t get me wrong, the Article 32 has quickly for me gone from being way better than a grand jury, to more or less equivalent.
    Now, in both, the government can more or less achieve the result they want, regardless of the process…although at least with an Article 32, there’s discovery and impeachment possibilities that remain.

  39. k fischer says:

    Yeah, I agree.  It is slightly better in my opinion, but only slightly.  Even though you can’t call the vic, you can still call all the corroborating witnesses to try to nail down their story, so they don’t flip at trial.  Of course, then they change their story by trial, and you are stuck with the summarized transcripts.  I had a Government rebuttal witness who testified to something different than when he took the stand, so I asked him if he testified to something differently at the Article 32.  He said he didn’t recall so, I read what he said from the summarized transcripts.  He still said that he couldn’t recall testifying to what I read.  So, I asked him if the transcripts from the hearing would refresh his recollection and he said, “I don’t need to see your transcripts’ to which I replied incredulously, “Why not?”  before walking away in disgust as he sat there silently.  I’ve never considered spitting on a witness before, but I came awfully close to thinking about it with this lying POC. 

  40. Contract Lawyer says:

    Would Feres apply?  He was not in the military; he was a civilian.  Or since he was held on active duty, does that also involuntarily put Feres on him?

  41. Tami a/k/a Princess Leia says:

    @Contract Lawyer, this is another reason I would be interested in a civil lawsuit.  Seems logical to me that Nettles is not Feres barred, as it turns out he was in fact a civilian.  But I can also see where a judge thinks, “Government thought he was on active duty but it turns out he wasn’t on active duty, Feres applies.”  Kind of like the good-faith exception to the exclusionary rule.  That’s why I think it’s important to look at the Government’s reasoning behind charging Nettles with rape, when the statute of limitations was about to run out for the “indecent acts.”  Inflating a charge to get around the statute of limitations seems like bad-faith to me.
     
    Either way, the United States will substitute itself for the individuals who could get sued.
     
    Alternatively, is this something that Nettles could file a claim for?

  42. Tami a/k/a Princess Leia says:

    Regarding Article 32s, if Congress intends to make our system more like the civilian system, then make the Article 32 PHO’s recommendation binding!  Not just a “recommendation.”  If the PHO determines no PC, then the case is over, period.  Then commanders can save face by saying “I was tough on MSA because I preferred charges,” AND they get to blame the lawyers for the lack of referrals, because it was that JAG PHO who killed the case.  And the JAG lawyer has a report showing he/she followed the law, and applied the law to the facts correctly, taking the complainant’s statement to CID/OSI/NCIS at face value, determining if there’s anything to corroborate what the complainant says, anything to corroborate what the accused says, etc.  Seems like a win-win for everyone.