Back in July, a three-judge panel of the Navy-Marine Corps Court of Criminal Appeals issued a per curiam opinion that reversed convictions of rape and forcible sodomy because the panel found the evidence presented at trial to be factually insufficient. United States v. Clark, No. 201400232 (N-M. Ct. Crim. App. Jul. 14, 2015) (link to slip op.).

The convictions were based on allegations that the appellant used force to engage in vaginal and oral intercourse with a female victim who had very little memory of the encounter due to her state of intoxication at the time of the encounter. The only direct evidence against the appellant was (best I can tell) the woman’s testimony, consisting of “four segmented memories of what occurred with the appellant that night.” Slip op. at 4. Nevertheless, the appellant was convicted by a general court-martial composed of a military judge alone and sentenced to confinement for seven years, reduction to E-1, and a dishonorable discharge.

Considering the relatively little evidence presented at trial, and employing its unique factual sufficiency powers, the NMCCA found the evidence insufficient to sustain the convictions:

We are unconvinced by the record before us that the Government met their heavy burden of proving the required element of force for either offense. While SW’s description of appellant holding her by her arms provided some evidence of force, she could not link this action by the appellant to any further act, sexual or otherwise, and the disorganized, potentially non-sequential order of her memories prevents us from concluding that the charged forcible sexual acts necessarily followed.

Slip op. at 13. As a result, the CCA dismissed the charges with prejudice.

However, the appellant was not immediately released from confinement. Nor was he entitled to immediate release (discussed in depth below). Nevertheless, the appellant sought a writ of habeas corpus from the NMCCA ordering his immediate release. The CCA denied that writ in an en banc decision available here.  The appellant has since appealed that denial to CAAF, where I expect it will also be denied.

This isn’t to say that the appellant is not entitled to be released. Rather, he just has to wait a little bit longer.

The UCMJ does not give a CCA the authority to enforce its own decisions. Rather, that authority is given to the JAGs who instruct convening authorities to take action in accordance with the decisions of CCAs:

(e) The Judge Advocate General shall, unless there is to be further action by the President, the Secretary concerned, the Court of Appeals for the Armed Forces, or the Supreme Court, instruct the convening authority to take action in accordance with the decision of the Court of Criminal Appeals.

Article 66(e). The caveat “unless there is to be further action. . .” in this statute provides that a JAG is not required to instruct a convening authority to implement a decision of a CCA unless there will be no further review. See United States v. Miller, 47 M.J. 352 (C.A.A.F. 1997). A CCA’s decision is said to be inchoate until a JAG gives it force, and a JAG is not required to give a decision force if there will be further review. However, even if there will be further review, once the decision to seek such review is made then “an accused’s interest in the favorable decision of the court below (even if inchoate) requires either that the accused be released in accordance with that decision or a hearing on continued confinement be conducted under RCM 305.” Miller, 47 M.J. at 362.

The time period for a JAG to seek further review (by certifying the case to CAAF) is 60 days from the date of the decision of the CCA in accordance with CAAF Rule 19(b)(3). The Government may also seek reconsideration by the CCA which functionally extends the time to certify the case (by delaying the final decision of the CCA).

In Clark, the panel’s per curiam decision was issued on July 14, 2015. The Government had 30 days to request reconsideration of this decision (in accordance with NMCCA Rule 19(a)), and it made such a request on August 13, 2015 (the 30th day). The NMCCA denied reconsideration on August 18, 2015, which started the 60-day clock for a decision on further review. The deadline for the JAG to certify the case is October 17, 2015. Accordingly, unless CAAF intervenes and modifies the holding of Miller, the appellant in Clark is not entitled to release under the decision of the NMCCA until October 17, 2015.

The CCA reaches this conclusion in denying the appellant’s request for a writ of habeas corpus:

[T]he CAAF has consistently held that a CCA opinion favorable to a service member does not entitle him to be released or to the equivalent of an R.C.M. 305 hearing until the JAG has had the opportunity to send the case to the CAAF. This, we believe, is in recognition of the JAG’s executive role and the finite period of time between a CCA decision and action by the JAG – in contrast to the relatively lengthy and indefinite period of time for the CAAF to consider the merits of an appeal.

Op. on Writ Pet. at 5. However, two judges dissent from this conclusion and would order the appellant’s immediate release. Citing the 1990 decision in Moore v. Akins, 30 M.J. 249 (C.M.A. 1990), the dissenters conclude that the appellant “has established a clear and indisputable right to be released from confinement and would grant his petition.” Op. on Writ Pet. at 8. This conclusion is difficult to reconcile with the actual facts of Moore, where the petitioner was being held in post-trial confinement after his case was certified to the Court of Military Appeals (CAAF’s predecessor):

In view of this favorable decision, Moore and his counsel asked that he be released from confinement. When release was not forthcoming, Moore requested on April 24, 1990, that service of his sentence be deferred. On May 16, 1990, the Judge Advocate General of the Navy certified two issues for review by our Court. The request for deferment was denied on June 6, 1990, by the convening authority, who stated, “In light of the serious charges of which you were convicted, I consider it appropriate that you remain confined pending the outcome of the appellate process. As you are no doubt aware, your case has been certified to the United States Court of Military Appeals by the Judge Advocate General of the Navy.”

Moore, 30 M.J. at 250-251. The holding in Miller – reached seven years after Moore was decided – seems far more pertinent:

there will be a 30-day period during which the Judge Advocate General is considering whether to accept the lower court’s opinion or to pursue it further by way of a motion for reconsideration or certification to this Court. During such period, an accused remains in confinement because the opinion below is inchoate.

Miller, 47 M.J. at 361 (emphasis added) (the time period was extended to 60 days by CAAF’s rules change).

Come October 17 – or the date the JAG certifies the case to CAAF, if earlier – the appellant in Clark will be entitled to release from post-trial confinement under the CCA’s decision that reversed his convictions (though he could still be held in pretrial confinement if there are circumstances that warrant pretrial confinement). However, he does not have the right to release before that date.

46 Responses to “An appellant’s sex assault convictions are reversed, but he isn’t released from confinement (yet)”

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

    I think the issue in this case is that the NMCCA reversed all of the findings and dismissed the charges with prejudice, AND they did so exercising their factual sufficiency powers.  Under these circumstances, the only way for TJAG to certify to CAAF is that NMCCA somehow exercised its factual sufficiency powers incorrectly, and that’s nearly impossible to do.  So really, TJAG doesn’t have anything to appeal.  And in that situation, Clark should be released immediately.  To me, it seems wrong to keep Clark in jail simply because you have 60 days to appeal, but in reality, no legal basis to do so.

  2. Former DC says:

    Considering CCA and CAAF are Article I courts, and the JAG is an executive branch officer, couldn’t Clark file a Bivens action in DC District Court and ask for relief that way via injunction? That would be the functional equivalent, and also trigger (potentially) money damages.

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

    Former DC, I think Clark is Feres barred from filing a lawsuit.  He would also have to exhaust his military remedies I think, i.e. apply to CAAF for relief.

  4. Zachary D Spilman says:

    What would be the basis for such a suit anyway? The JAG is (presumably) contemplating doing something that the JAG has every right to do. The appellant, however, has no right to release until the JAG either makes a decision or the time for doing so passes. 

    The NMCCA’s opinion on the writ petition discusses the fact that the Secretary of the Navy has the authority to defer confinement pending appeal further. See Article 57a(c). I neglected to discuss this in my post above, but the prudential doctrine of exhaustion would suggest that habeas in not appropriate until after the appellant seeks and is denied deferment by SECNAV (assuming that hasn’t happened; the opinion makes no mention of it).

  5. Former DC says:

    Zack: I was building off Tami’s original point that the delay has no actual legal basis: it is built on what appears to me to be a wholly illusory reason for delay. In other words, it is a pretext to keep Clark in confinement a little longer. Effectively, it is an attempt to punish him extrajudicially because the conviction was overturned in a manner that prohibits a rehearing. I think, if it is a pretext, there is a right to release, because the delay is only intended to allow a genuine proceeding, not a sham delay for additional punishment  
    Tami: Under that scenario, it is not the act of any court, but rather, the act of an executive officer – the JAG – that is denying him a 5th Amendment right, i.e., his liberty. I don’t think exhaustion is required under that scenario. As a matter of fact, I am pretty sure (shooting from the hip) that exhaustion is never required for Bivens/1983, because that suit technically seeks a different remedy not available in the underlying case (money damages and injunctive relief). Yes, in this case, the factual relief (release from confinement) is the same, but legally et are not. Remember, Bivens/1983 actions happen parallel with criminal cases all the time, and the results can be inconsistent. After all, a criminal can be found guilty, yet still have his civil rights violated. 
    Practical point: In my experience, DoJ strongly dislikes Bivens cases (remember, it will be the US Attorney, and not anyone in DoD who would have to defend) If they can kill it quickly by getting DoD to release Clark and end the case, I suspect they will.

  6. Zachary D Spilman says:

    Effectively, it is an attempt to punish him extrajudicially because the conviction was overturned in a manner that prohibits a rehearing.

    That’s an awfully big claim. I see no basis for it.

    it is not the act of any court, but rather, the act of an executive officer – the JAG – that is denying him a 5th Amendment right, i.e., his liberty.

    And yet the law is clear that he is not entitled to be released until October 17, at which point one imagines he will be released and the issue will be moot.

  7. Phil Cave says:

    Anyone know how this operates in federal court?

  8. Zachary D Spilman says:

    Well, there are a lot of significant ways that this part of the military system is not analogous to federal practice (starting with the factual sufficiency review conducted on automatic review by the CCA). But Fed. R. App. P. 9(a)(3) specifically gives federal appellate court judges the authority to order that a defendant in a criminal trial be released pending completion of an appeal:

    (3) The court of appeals or one of its judges may order the defendant’s release pending the disposition of the appeal.

    See also 18 U.S.C. § 3143.

    If we’re going to look for similar authority in the UCMJ, we’d find it in the Article 57a(c) service secretaries’ authority to defer an executed sentence to confinement:

    (c) In any case in which a court-martial sentences a person to confinement and the sentence to confinement has been ordered executed, but in which review of the case under section 867(a)(2) of this title (article 67(a)(2)) is pending, the Secretary concerned may defer further service of the sentence to confinement while that review is pending.

    Of note, this authority is (by its reference to Article 67(a)(2)) limited to cases certified to CAAF by a JAG.

    The district courts can also order a defendant’s release pending appeal; a power analogous to the convening authority’s Article 57a(a) deferment power.

    Though the analogy really flows the other way: Congress created the deferment powers now contained in Article 57a in order to give a person convicted by a court-martial options for release pending appeal similar to those available to a federal criminal defendant. See Moore v. Akins, 30 M.J. 249, 251-252 (C.M.A. 1990).

    Which brings us back to the petition in Clark and the question of whether the appellant should be required to exhaust other remedies before seeking a great writ. 

  9. Dew_Process says:

    The basic question here is simple, by what lawful authority can the Navy keep Clark confined? There are no pending charges against him as they were dismissed with prejudice on factual sufficiency grounds, and jeopardy has attached.
    This is not a new or novel issue, just one that’s been dormant for many years. In an even more convoluted case, Parisi v. Davidson, 405 U.S. 34 (1972), SCOTUS ruled that even though Parisi’s court-martial conviction remained in the military appellate system, he could – under the facts of his case – proceed with a federal habeas action in federal court and remanded the case back to the district court for “expeditious consideration” of the habeas corpus case. Indeed, 28 U.S.C. 2241(c)(1), expressly authorizes habeas relief where the prisoner “is in custody under or by color of the authority of the United States. . . .” something that Clark clearly is. See generally, Straight v. Laird, 406 U.S. 341 (1972).
    As to any type of Bivens’ claims, United States v. Stanley, 483 U.S. 669 (1987), answers that question in the negative as being barred by Feres.

  10. stewie says:

    The statute is the lawful authority isn’t it?

  11. Dew_Process says:

    @ Stewie:  I guess it depends on which side of the window you’re looking through. I don’t dispute your point, but conversely (at least to me) “action” by the CA is not necessarily the same as being released from confinement pending that action under Art. 66(e). Since there’s presently no conviction and thus, no sentence to confinement, and arguably now, no probable cause for such confinement, why shouldn’t he be released?
    I had a somewhat analogous scenario a few years back. Retained for post-trial representation, the CA “busted” the case and ordered a new trial – client was @ 7 months into a 18 month sentence, but CA wouldn’t order him released. However, the SJA at the RCF told the RCF Commander to send him back to the CA, as they had no authority to keep him in the RCF.  He was released that day.
    I guess we can agree however, that this is a scenario that should be clarified and hopefully will be. One can argue the inchoate argument, but when a so-called “court” says no conviction due to factual insufficiency of the proof, that would seem to be a strong basis for habeas relief.  See generally, Duncan v. Kahanamoku, 327 U.S. 324 (1946)[granting habeas relief for lack of jurisdiction].

  12. Zachary D Spilman says:

    A convening authoriy disapproving findings (a self-executing action) is wholly different from a CCA disapproving findings (an action that isn’t executed until the JAG to instructs the convening authority to do so). 

    I don’t dispute your point, but conversely (at least to me) “action” by the CA is not necessarily the same as being released from confinement pending that action under Art. 66(e).

    I think there’s a fair reading of Article 66(e) that says that once the JAG instructs the convening authority to take action in accordance with the CCA’s decision, then no further review of the CCA’s decision is possible. 

    The way for an appellant to be released from confinement pending further appeal is for the Secretary concerned to use the Article 57a(c) deferment power. 

  13. stewie says:

    Except DP, the statute seems to me to clearly it isn’t quite the case that there is “presently no conviction and thus, no sentence to confinement.”
    That case doesn’t become true until either the time passes without certification, or, likely much later, the CAAF ruling/process completes.
    It is certainly true that the confinement facility could simply release him.  I doubt that happens though.

  14. k fischer says:

    It seems like this is an injustice that Congress could easily fix if this case was brought to their attention.  However, instead of finding issue with Clark remaining in confinement for a needless 60 days, I would be afraid that Congress would find fault with the CCA reversing for factual insufficiency where a MJ who is trained in the law and saw the witnesses in the case convicted Clark beyond a reasonable doubt.
    Does anyone know who in Congress is concerned with the rights of the Accused and protecting our defenders from false allegations of sexual assault?
    Also, has anyone represented a Servicemember who had an adverse action taken against them based on a finding by the Family Advocacy Program where their information was entered into the DoD Central Registry?  AR 608-18 allows for background checks on individuals who are actual or potential candidates for drill sergeant or recruiter positions.

  15. Concerned defender says:

    I’d like to see some JAGs held accountable for these types of cases.  In just the last month, we’ve had reversals in two cases for factual insufficiency and one case for TCs hiding discovery.  That’s THREE servicemembers convicted of high crimes of rape and sentenced to years in prison for crimes they apparently did not commit.  
    This begs the question about where is the adult supervision within the SJAs office, the senior TC, the CG…?   At a minimum I hope these JAGs have censures and complaints on their law licenses, because these things tell me that there was a bad faith prosecution. 
    In one of my TDS cases, there was an Article 32 where all allegations (rape x2, adultery) were unfounded.  The government held a second Article 32, where one of the rapes (unconscious victim) was again unfounded.  They still took it to trial and at trial the panel gave him a NG on the unconscious victim.  So, the tally is 3 non-legally trained groups found insufficient evidence that she was asleep (clearly she was not).  Yet a Staff Judge Advocate (15+ years legal training), a chief of justice (10+ years legal training), and a trial counsel (2+ years legal training), and probably a second chair (2+ years legal training) failed to “get it” that she was not asleep.
    Disgraceful.  If there isn’t already, there should at least be a mechanism for a “reach back” OER when someone today learns of a major screwup from years past where an OER can reflect it now.  
    There needs to be some “skin in the game” for these juvenile prosecutors who are running wild…

  16. k fischer says:

    In Navy E3 Clark’s particular case, he was convicted by a military judge and sentenced to 7 years in prison.  So, we would have to string that judge up with the JAG gone wild prosecutors because apparently he is in on the incompetency or the conspiracy that resulted in the conviction of innocent men for crimes they did not commit.
    Notwithstanding Clark, I feel your pain and I wish there was a way to highlight to Congress the facts of bs cases that result in an acquittal, or worse, a conviction.  I would challenge Sanchez, McCaskill, Gillibrand, or Speier to review some of the most ridiculous cases that resulted in acquittals, then contemplate what kind of monster they have created.  Unfortunately, I imagine we would hear the cackling in harmony that “an acquittal doesn’t mean that the Accused is actually innocent.”  Actually, under our system of justice, it is supposed to mean that. 

  17. stewie says:

    Just so I am clear concerned defender…your position is that anytime a case is overturned for factual insufficiency or other issues, then there should be censures and complaints and bad OERs for “juvenile prosecutors who are running wild?”
    A few problems with that position:
    1. It assumes that there was bad faith in each of those situations, and not one of a myriad other issues.
    2. It assumes that “juvenile prosecutors” (and really we probably shouldn’t have prosecutors under the age of 18 in the military, I mean that might be part of our problem right there, I haven’t really looked into it thought) are the problem when MJs and other “adults?” have looked at it and found it alright.
    I certainly support more consequences in egregious cases than we have now, but, per usual, you’re approach is swinging a giant hammer indiscriminately.

  18. DCGoneGalt says:

    stewie:  You left out the possibility that there are prosecutors who are clones of the rapper Juvenile.

  19. DCGoneGalt says:

    Or prosecutors who are perpetually prosecuting the rapper Juvenile.

  20. Concerned defender says:

    Yep, a big hammer is indeed needed when TCs are hiding discovery, allowing CID fabricated evidence into trial, bringing charges in bad faith, etc.  
    My career hasn’t been all that long, and yet I’ve personally seen case after case after case that makes me respond, “you’ve got to be kidding me, this is total bullshit.”  The lying “victims.”  The planted evidence.  The false or unfair confessions.  Time after time after time.  And that’s personal experience.  Then we move onto anecdotal, colleagues, and appeals cases and suddenly there is a mountain of cases where clearly innocent men are being ruined by baseless allegations.   Anyone who has done military defense can give you at least one and probably a handful of examples where their innocent guy was at least charged, and often prosecuted under very dubious evidence.  Certainly the issues raised at appellate levels must have been known and dismissed or not give weight by the TCs and SJA at some point in pre-trial… I’m confident the defense lawyer at least raised these issues with the SJA pretrial.
    And who is driving this train?  The SJAs can put a stop to many of these by non-referral recommendations to the CG.  Every CG listens to his SJA.  
    I have little beef with a good faith, bona fide rape charge.  I’m not a defense hack.  But throw up some of these wildly dubious allegations which any critical lawyer would pass on (or the other games like hiding discovery), and yes, those lawyers should be personally liable for their bad decisions.  

  21. Concerned defender says:

    I just want the naysayers to answer this question after honest reflection.  Would you honestly feel comfortable being a male in the military right now, where an allegation of any type of harassment, sex assault, or rape, often with NO extrinsic evidence is enough to ruin your career, kick you out with an OTH, disbar you, get you a General Court Martial and if convicted by 66% vote, cause you to have a Federal conviction, sex offender registry, and a dismissal?  
    If you have any experience in this area, you’ve see it happen.  Just look at MAJ Erik Burris, who got hit with 20 years and a dismissal for accusations of raping his wife during what are in my view were clearly a vindictive spouse using allegations as divorce and custody leverage.
    Very chilling indeed.  

  22. stewie says:

    I’ve done a ton of military defense, way too much to be any good to my career lol and I’ve seen the equivalent of planted evidence once, and it wasn’t really planted evidence, more of a lying polygrapher. I’ve never seen what I would consider “bad faith” charging either.  I certainly have seen inexperience, and I’ve seen cowardice, and I’ve seen incompetence.  Bottom line, I would use a certain word to describe your approach, but it will set off kf, and you do NOT want to make him angry…you wouldn’t like him when he’s angry.

  23. stewie says:

    At the risk of jinxing myself, yes I feel comfortable being a male in the military right now.  Now, I’m also an inherently boring person so that probably helps keep me out of trouble.

  24. Concerned defender says:

    TWENTY YEARS!!!!!  I’ve seen child molesters at guilty pleas who admitted to some horrific things get far less sentence.  I prosecuted an armed robber who committed kidnapping (of a pizza delivery guy) and a host of other crimes, including escaping from pre trial confinement and conspiracy to carjack and other crimes, and he got 3 years in jail.  Actual stranger rapes tend to get time significantly less than 20 years.  
    TWENTY YEARS!!!!  On a case that from open source information was dubious at best, and probably clearly frivolous with no good faith basis of going forward.  This is the insanity of it all.  Apparently the prosecution asked for less, and the brainwashed SHARP panel went above their request for sentence.
    I bring this up not to derail Clark but to simply illustrate a point of reaching absolute absurdity in the MJ system, where some adult somewhere (whether it be the Trial Judge, the SJA, the CG, etc.) doing something within their power to keep this on the tracks of fairness and in keeping with the rights of the accused.  One out of a lot of examples of how the military may very well lose their ability to handle MJ in the near future since the system has become so corrupted by politics and no adult supervision within the JAG Corp on these cases. 

  25. stewie says:

    The first four exclamation points, I have to admit, I wasn’t really paying attention…but the fifth one caught my eye, as did repeating it a second time (although with only four exclamation points that time, which makes me unsure if you are 20% less emphatic upon more reflection).

  26. Dew_Process says:

    We can argue the procedural requirements until the proverbial cows come home. But, N-MCCA’s language is clear:

    Under the facts presented and for the reasons stated we simply are not convinced that the Government satisfied its burden of proving the appellant’s guilt to the charges of rape and forcible sodomy beyond a reasonable doubt. We therefore find the appellant’s convictions factually insufficient. The findings of guilty and the sentence are set aside. The charges and specifications are dismissed with prejudice. [Emphasis added] Slip Opn. at 15

    And Clark remains incarcerated nevertheless.

    At its historical core, the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in that context that its protections have been strongest.

    INS v. St. Cyr, 533 U.S. 289, 301 (2001).  What I am talking about here is inherent judicial authority to include a CCA’s “fact-finding” power.

    This case is about a conflict between the power of a commander and the authority of a military judge. It explores the authority of a military judge to respond, after completion of a trial, to a commander’s willful disregard of a judicial order.

    U.S. v. Mahoney, 36 M.J. 679, 680 (AF CMR 1992).  Mahoney was a government writ case seeking to prohibit the then AF Chief Judge in Europe from further involvement in the court-martial of AF SSgt Tilghman. After Findings, but prior to the commencement of the sentencing case, Tilghman was ordered into confinement by the SpCM CA. His counsel immediately requested a hearing before the presiding military judge, who – after a hearing – ordered Tilghman released. Not to be outdone by a “judge,” the Convening Authority issued a new confinement order and had Tilghman taken into custody again, without notice to the defense or military judge. As the Court in Mahoney observed:

    Among other important characteristics, American judges stand between the power of the Executive and the rights of the citizen, permitting the enjoyment of individual’s rights to be diminished only so much as the law permits exercise of the Executive’s power. Using military justice terms, the military judge stands between the vast authority of command and the relatively concise list of rights enjoyed by military members accused of crime. In this case, Judge McShane stood between Colonel Long’s authority to imprison Sergeant Tilghman and Tilghman’s right to be free if, upon judicial review, inadequate grounds were found for imprisonment. Id. at 686.

    As to deferment IAW Art. 57a(c), there is no sentence to defer: “The findings of guilty and the sentence are set aside. The charges and specifications are dismissed with prejudice.”  Either those words have some meaning – especially to Clark – or we are just pretending that the CCA’s are in fact “courts.” The mandate in Art. 66(d), is clear by its use of the word “shall” and whether or not there is further action IAW Art. 66(e), it cannot be stretched to the point of continued confinement where the CCA has set aside the findings and sentence and dismissed the Charges and Specifications. 
    In the end, my point is essentially that articulated by the dissenting judges in the en banc denial of Clark’s habeas application.  Clark is imho, more appropriately governed by Moore v. Atkins, 30 M.J. 249 (CMA 1990), which presents a similar procedural posture. Speaking for the Court, C.J. Everett stated:

    The Government’s argument seeks to impose a “tyranny of labels.” Clearly, the legislative intent was that a practical means be made available to release accused servicemembers from confinement pending appeal in meritorious cases. This was the reason for enacting Article 57(d). We are convinced that Congress did not intend that the outcome should hinge on any distinction between an “inchoate” decision of a Court of Military Review and a mandate issued by a federal court of appeals. Indeed, one of the main purposes of the Military Justice Act of 1968 was to transmute the “boards of review” into “courts”; and we conclude that the decisions of these “courts” must be taken into account for purposes of post-trial confinement even before they have become “final.”  [Emphasis added], Id. at 253.


  27. Concerned defender says:

    Stewie, I am glad I put that 5th one in there then.  Otherwise you’d have ignored it.  :)  
    In all seriousness, I’m glad you feel so comfortable and confident in your military employment.  I surely hope no individual, subordinate, disgruntled ex lover, upset spouse, mad client, who knows, makes a single allegation from 3 years ago, 5 years ago, 10 years ago… would be a real shame if remaining silent really is no longer an option in your defense, and any possible exonerating evidence has long been destroyed or may never have existed…  

  28. stewie says:

    Thanks CD. I think?

  29. k fischer says:

    Cowardice charging = bad faith charging.  Incompetent charging = bad faith charging because you can’t tell me that someone up the chain and the MJ doesn’t have the competence to put a stop to a bs prosecution or an unfair trial.  I’m starting to like this concerned defender person.  She reminds me of me.  And CD raises a good point.  I really would think a lot more about advising my son about joining the military.  And there are days where I am very happy I don’t have to worry about a false allegation from a crazy person in the military.  It only takes one weak SJA or one SJA who doesn’t vet along with you, although I always had a good relationship with those who I worked for.  Still, it is a much different Army than the one I left with much backstabbing and bad morale.

  30. k fischer says:

    And if I knew who Stewie was, I could call the DoD helpline and make an anonymous allegation that he gave me a nonconensual tug in the head one day during a recess at trial.  I’d wait until I heard he PCS’d.  They would conduct a 15-6.  Then they would put a letter of concern in his local file minimum.  That’s how ridiculous the environment is right now.

  31. stewie says:

    No, incompetent charging is not bad faith…and yes when you focus on broadly skilled vice criminal experience than yes you can have someone up the chain who doesn’t know much more than the TC does. I concur the morale currently isn’t high although that seems to have more to do with promotion rates than anything else. I haven’t seen much in the way of “backstabbing.”   I think once they realized it was kf who was tugged in the head, they might give me a battlefield promotion.

  32. K fischer says:

    Okay, incompetent charging is a violation of the Rules for Professional Responsibility.  And quite frankly, I think there is a lot of feigning stupidity that allows TCs or SVPs to make the most ridiculous or fallacious arguments.  And the JAGs (at least three) in the periphery say after a case which is so stupid I could get a full acquittal, “Well that case had to go to trial.”  Why?  “It just had to go to trial.”  But, the 32 IO recommended that the case be dismissed because the Vic was not credible, so why did it have to go to trial?  “It just did.”  Has anyone else ever had a conversation like this?  At least they recognize the case was stupid, but indirectly, I think they also recognize that the Accused has to have his right to due process violated by facing baseless charges because the military courts are so politicized that these cases have to go to trial. It’s affecting morale and a lot of good people are getting out, so what will be left are a bunch of true believers who have no problem indicting a ham sandwich and people who keep silent and just try to do their job the best way they can.

  33. stewie says:

    Indictment is supposed to be a low standard. It is in the civilian world, it is in our world. PC is a really low standard. It’s always been a really low standard. So if you think that too low or improper then it’s been too low or improper for the whole of American history. I don’t have nearly as much of a problem with what goes to trial as I do to the procedural changes AT trial and at 32s that prevent TC and the government from knowing when they have a bad case and prevent discovery for the accused.

  34. k fischer says:

    That’s the other argument that I am tired of hearing: PC is the lowest standard of proof there is.  I hear it at every stinking 32 I have ever attended, and, full disclosure here, I might have argued it when I was a TC before I took the red pill and read the comments to R.C.M. 405(a), which states “The PRIMARY purpose of the investigation required by Article 32 and this rule is to INQUIRE INTO THE TRUTH OF THE MATTERS SET FORTH IN THE CHARGES, the form of the charges, and to secure information on which to determine what disposition should be made of the case.”  The fact that the “inquiry into the truth of the matters as set forth in the charges” is the first purpose in the 3 purpose list indicates that it is the most important.  Is that language still in the comments section
    So, if I have a case where there is no physical evidence to corroborate a witness, a.k.a. “victim,” who the IO does not believe is credible, then how on earth can it be believed that the matters set forth in the charges are true?  Because the truth is that if ANY person reading this was sitting in a chair next to me as the accused at an Article 32 under similar circumstances and the case went to Court-martial after the 32 IO recommended dismissal, they would be incensed, they would want the SVP, TC, and SJA disbarred, and they would have little faith in the military justice system with regards to sexual assault prosecutions.

  35. stewie says:

    The purpose doesn’t change the STANDARD used in determining whether that purpose has been met. It’s a low standard. It’s always been a low standard. It’s why historically even before the changes to the 32 TC blew off 32s because they knew the standard was low. It’s why no one in the civilian section spends more than five minutes (exaggeration slightly) worrying about a PC hearing.
    And, historically we’ve had IOs who have always sent things forward with more or less a blank check. The problem isn’t that, the problem is removing the discovery function of Article 32s, the ability to get into AV mental health records, SHARP training that taints fact-finders, and yes the fact that convening authorities feel a lot more pressure to go forward now is part of it, but I’ve had cases well before 2007 where I thought as a DC the case shouldn’t go forward, or that the accusers or AV were not credible, and yet they did, and we just went and got an acquittal. More stuff was quashed at 32s before, but that was more because of the way the old 120 was written and the pre-SHARP thought processes then because of what Congress has done IMO.

  36. k fischer says:

    So, what would be a case where a finding of no PC was warranted?  Because the STANDARD is whether “reasonable grounds exist to believe that the accused committed the offense alleged.”  So, what are the grounds?  Many times it is the complaining witness’ testimony and there is no physical evidence to corroborate her.  If the complaining witness is deemed to be not credible by the IO because her story is contradicted by other evidence, then do reasonable grounds exist to believe that the accused committed the offense as alleged? 
    That is a huge problem in the Burris case and my last case.  The IO’s found that there were reasonable grounds to believe the offenses were committed, yet they recommended dismissal of the charges because the complaining witness’s could not be believed.  Both the Defense and the Government agree that the IO’s in each case were a football bat.  The Government would say that the IO had no business recommending dismissal once PC was found.  I would argue that the IO’s finding of PC was rendered baseless if they believed that the complaining witness had no credibility.  This is the point where I think the Article 32’s purpose and standard intersect to dismiss bs cases.  If the witness cannot be believed and the case should be dismissed, then there isn’t PC because the grounds to believe that the accused committed the offenses as alleged are not reasonable.   
    And, when a Servicemember faces court-martial on baseless charges, they don’t always get acquitted particularly in this environment.  And, it’s easy to talk about how you “just went and got an acquittal” in those cases where you felt the case should not have gone forward.  But, you weren’t the one sitting in that chair as the accused.  I think your perception would change if you were the person sitting in that chair.

  37. stewie says:

    And what if you think the IO got it wrong? I know of two cases when I was CoJ, one where the IO recommended dismissal where he was just dead wrong, and one where he recommended going forward where he was dead wrong.  We ended up following his recommendation in the former, and not in the latter. But I would have been just fine going forward on the former personally because I thought he was dead wrong. That’s why it’s merely an advisory opinion.  The IO “determining credibility” is not the end of analysis.

  38. k fischer says:

    If you can reasonably articulate why you should go forward based on the evidence, then I would say you are solid.  It’s like my former TDS boss told me when I moved from instructor/Magistrate/recruiter to TDS.  She said that she did not always agree with the decisions that I made on pretrial confinement as a magistrate, but she said that my decisions were very well explained and grounded in reason.  I appreciated that compliment.
    But, in my last case an O6 stated in a memorandum explaining his decision to recommend referral that all he had to do was get a counter-intuitive victim behavior expert to explain the alleged vic’s erratic behavior.  Now, had he spoken to said expert prior to trial, then he might have concluded that the vic was the actual abuser and making a false allegation. 
    But, some SJA’s are not in the business of inquiring into the truth of the matters asserted in the charge sheet, so that a Servicemember does not face court-martial on baseless charges.  Too many SJA’s are focused on protecting their GCMCA to the detriment of how fairly Military Justice is perceived out of fear that Congress will fundamentally change the UCMJ into a system where Commanders have no control.  Well, isn’t that what we have now where Commanders send cases to trial that they think should actually be dismissed in order to protect the system? 
    They are errand boys sent by grocery clerks to collect a bill.

  39. Alfonso Decimo says:

    Fisher-King – That’s a great point! The strongest argument for replacing the commander as the UCMJ prosecutorial authority can be made by identifying cases where a similar case would generate a different decision in other (attorney-controlled) systems. I would start with commanders who have disregarded the Article 32 recommendations and/or the SJA advice. Some defense-inclined attorney should write an article titled, “Senator Gillibrand is Right!” and base it on that type of compiled data.

  40. Concerned defender says:

    I agree with K fischer.  I would never take a case to trial if I didn’t think in my heart-of-hearts that it was the right thing.  If I could not convince an unbiased objective 32 IO, particularly in a VERY government friendly environment where one has every benefit of relaxed rules, anything goes, introduction of hearsay and unimpeachable documents, etc… AND the defense often puts on little evidence… and the government still loses the “some evidence” argument… that’s a very sad case indeed to be subjected to the scrutiny of a trial, due process, BRD burdens, and defense evidence.
    Yes, very easy to “go get an acquittal” when you’re 1) not the one in the hot seat and 2) the rules and public opinion for rape and sex allegations is vastly different today than just a decade or few ago.  Every advancement in this area of law has been to the significant benefit to the complaining witness and to the detriment of the accused.  Even the perception has likely changed where an accused is nearly burden-shifted into almost mandatory rebuttal testimony.  
    It’d be unrealistic but awesome to do an experiment where a known false allegation with few details and no specifics works it’s way through the process to a CM, under some form of high secretive immunity, to see just how far the evidence is fabricated and the case gets in the process.

  41. k fischer says:

    I’ve come pretty close to a case where the willful suspension of disbelief would be required to prosecute my client in good faith.  It went all the way to a GCM where my client was fully acquitted. 
    I think it would be awesome if Jay Morse or MAJ Burris let loose some of their unknown secrets on some bs that went down in the sex crimes division of the Army.  I know of one particular SVP down at Benning who got a molestation dismissed after I investigated the SVP verbally roughing up the poor vic who was in the process of recanting.  This SVP stood the post during Morse’s tenure at TCAP, so he ought to know to whom I am referring.  This SVP went on to become an instructor in Charlottesville.  One of the Army’s most controversial HQE (Highly Questionable Expert) known for witness signaling as a civilian DA was present on post when this went down.  The thought of this particular SVP teaching future Army JAGs for three years really makes me question anyone at the basic course during this SVP’s period of instruction. 
    I think Gillibrand is right.  I think that an attorney controlled system would diminish UCI and would make panels trust TC’s much less.  It would be better overall for the system, but not what Gillibrand envisions.

  42. Sid Sheldon says:

    Major Magee and I represent Clark.  Clark is now being held past his EAOS.  My firm, on Clark’s behalf, will be filing a claim under Bivens in district court and an SF 95 for negligent infliction of emotional distress.  Negligent because the FTCA does not apply to intentional torts.  This may well be a unique time given Clark’s status to make an inroad on Feres injustice……..

  43. Unconscionable says:

    TJAG has no good faith basis to consider certification in Clark given the fact that the CCA set aside the findings as being incorrect in fact; the CAA did not set them aside as being incorrect in law.  In contrast, CAAF only has jurisdiction to act “with respect to the findings . . . as affirmed or set aside as incorrect in law[.]”  Art 67(c).  Therefore, a TJAG certification in Clark would be jurisdiction-less, and therefore frivolous.  Any lawyer who participates in such an appeal ought to face discipline by their State bar.  Any lawyer who participates in the continued confinement of Clark despite the fact that he has been judicially acquitted by the CCA’s factual insufficiency determination should also face bar discipline. I say that Clark has been judicially acquitted because even if the CCA’s assessment of those facts happens to be wrong, “that is of no moment.”  It is an acquittal “regardless of whether the court’s decision flowed from . . . an erroneous interpretation of governing legal principles.”  The fact that the CCA’s decision might be legally infirm “affects only the accuracy of the determination to acquit, not its essential character.” Evans v. Michigan, 133 S. Ct. 1069, 1075-1076 (U.S. 2013).  TJAG can no more appeal the CCA’s factual sufficiency determination than he could appeal an acquittal from a trial court.  It’s unconscionable for any lawyer to entertain an idea otherwise.

  44. K fischer says:

    Once again, if someone raised this issue in Congress, then we would probably see a review allowing CAAF to review for factual sufficiency, or take away the CCA’s ability to do so.  That latter would be a gentle nudge in the path to become like the Canadians where the Government may appeal an acquittal.  

  45. stewie says:

    So CAAF can’t review clearly erroneous factual determinations by a lower court?

  46. Concerned defender says:

    I agree with Unconscionable above.  More government hacks need to face disciplinary measures from their state bars, and EVERY acquitted accused should consider (at trial or at appellate levels) filing grievances against the TCs and SJAs in cases of clear overzealous prosecution.  Many of us have observed these and watched our clients suffer and languish as a result of terrible TC and SJA judgment, and cold indifference to the facts of innocence.  
    In RE: Clarks case, not that accused don’t enjoy the luxury of freedom while the accused is filing his/her appeal.  So why does Clark need to remain confined after having been found NOT GUILTY by the appellate court while the Government files its appeal?  Makes no logical sense, and is flatly illegal, unethical and inequitable.  Just one more on the pile of examples of SJAs who are just not cut out for the job, and I’ve seen plenty of SJAs who were there for all the wrong reasons – politics, good OERs, kept their head down, brown nosed the right people, organized the right group pictures, looked good during the Article 6 visit, rubbed the right shoulders…. but had NO business making adult decisions.