This week at SCOTUS: The Solicitor General waived the right to respond to the cert. petition in Caldwell. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking three cases:

This week at CAAF: The next scheduled oral argument at CAAF is on October 11, 2016.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on September 7, 2016.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on September 15, 2016.

This week at the CGCCA: The Coast Guard CCA’s oral argument schedule shows no scheduled oral arguments.

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

One Response to “This Week in Military Justice – August 28, 2016”

  1. k fischer says:

    Here is an interesting take from the Huffington Post on the US v. Lt. Josh Seefried case from the Air Force that concluded last week with a full acquittal.  The injustice described is very well written and well reasoned.  I wonder if this Huffington Post blogger knows that this case plays out with allegations of heterosexual sexual assault every month in military courtrooms across all branches of service.  It certainly is not a unique phenomenon that applies only to homosexuals.
    In addition, I wonder if Mr. Carpenter is aware that had 1st Lt. Seefried been Army Officer 1LT Josh Seefried, his promotion to Captain would have to be vetted before being submitted to the Secretary of the Army for approval.  So, even though Seefried was found not guilty by the Military Judge, if he were in the Army, then his promotion would have to be vetted through looking through CID investigations, Command Investigations, DoD IG complaints, his restricted fiche, and a query for suspension of favorable actions, i.e. flags.  And, chances are, Seefried would never see the glint Captain bars sparkling from his shoulders.
    I think that in light of this new directive and in light of an opinion (published by the HUFFINGTON POST) that Commanders are sending everything to trial, perhaps Court-martial procedure should be changed to allow the factfinder three choices for findings:  Innocent, Not Guilty, or Guilty, with 2/3’s vote required for a finding of Innocent or Not Guilty.  If neither of those two findings reaches 2/3’s, then the Accused shall be found not guilty.  Do away with Article 32’s in sexual assault cases and automatically refer them to a General Court-martial.  Also, do away with the CID requirement to found or unfound an investigation.  I think any military attorney being intellectually honest would admit that CID “founding” an investigation is virtually meaningless.
    If the Accused is found innocent, then the record of trial, Flag, and CID investigation should be sealed from review by the promotion authority.  I think this would add a level of transparency and certainty to the panel’s findings to lessen the adverse impact of merely being accused to one’s promotion when there is a false allegation.  It would also help deal with false allegations by Servicemembers.   It would clue the panel into the mindset that Commanders are required to send even the most asinine sexual assault charges to a GCM, and it is up to the factfinder to figure it out.   In other words, it would help take away the inherent Command influence at a Court-martial in the system we have now because the panel members will understand that they don’t have to merely presume that the Accused is innocent, but they will realize that the Accused might very well be innocent because the Convening Authority has no say in the matter.  It would certainly placate Senators McCaskill and Gillibrand who appear to want every case to be tried at a GCM so the complaining witness may have his or her day in Court.  And finally, it would give society a pretty good idea of the percentage of false allegations each fiscal year because you actually have a verdict of innocence after a trial in front of a factfinder in which a record is created.
    Instead what we have is CID taking a statement from a complaining witness where no questions are asked that could exculpate the accused, CID founding its investigation, Preliminary Hearing Officer looking at the written statement and making a recommendation that has little bearing on the decision to refer the Court-martial, and a referral to a General Court-martial.  On paper, it sounds like the charges were robustly investigated, but in practice, any attorney who is intellectually honest would agree that the process is robust in appearance only.  Then, if the Accused is found Not Guilty, well that doesn’t really mean he is innocent, now does it?  No.  The Army will now look through their files to find adverse information to ensure that the Accused is not promoted.  And if he is not promoted, then he will be administratively separated, i.e. fired. 
    This is a ridiculously unfair system that hypocrites support until they are it’s victim.