The #2 Military Justice Story of 2015 was Government Bloopers, because a handful of cases that year portrayed military prosecutors and Government appellate attorneys as most-competent at sabotaging themselves.

Among those cases was CAAF’s summary rejection of the prosecution appeal in United States v. Bowser, 74 M.J. 326 (C.A.A.F. Mar. 25, 2015) (CAAFlog case page). Bowser involved sexual assault charges that were dismissed with prejudice because the prosecution refused to permit an in camera review of their witness interview notes. In 2015, upon receiving the prosecution appeal and accompanying brief, CAAF rejected the brief because it failed to address possible controlling or adverse authority, and the court ordered the Government to “file an amended brief addressing the deficiency noted.” It then rejected the certified issue and affirmed the dismissal of the charges in a summary disposition.

At least one Air Force prosecutor – and an ideological fellow-traveler in the Air Force Special Victims’ Counsel program – didn’t like that. And so they conspired to remove the military judge who dismissed the charges in Bowser from his judicial assignment. We know this because they ultimately succeeded in removing the judge, defense counsel figured it out, it was litigated, and now as a result the Air Force CCA reverses the findings of a general court-martial involving four separate alleged victims of sexual assault, and the sentence that included a whopping 29 years of confinement.

The case is United States v. Vargas, No. 38991 (A.F. Ct. Crim. App. Mar. 15, 2018) (link to slip op.) (CAAFlog link to slip op.). Judge Mink writes for a three-judge panel.

Senior Airman (E-4) Vargas was convicted by a general court-martial composed of members with enlisted representation of two specifications of attempted abusive sexual contact, three specifications of sexual assault, two specifications of abusive sexual contact, and two specifications of assault consummated by a battery, in violation of Articles 80, 120, and 128. “The facts underlying the charges in this case pertain to sexual and physical assault involving four victims.” Slip op. at 3. Vargas was sentenced to confinement for 29 years, reduction to E-1, and a dishonorable discharge.

The military judge who presided over Vargas’ trial was Air Force Colonel (Col) Donald R. Eller Jr., who at the time was the Chief Circuit Military Judge in Europe. The CCA reverses Vargas’ convictions because it finds that Col Eller was disqualified from presiding over the trial because he should have recused himself. But the real issue isn’t so much Col Eller’s failure to recuse himself as it is the removal of a different military judge from the case: Lieutenant Colonel (Lt Col) CL.

Lt Col CL is identified only by his initials in the CCA’s opinion in Vargas. But the opinion also identifies him as the military judge who dismissed the charges in Bowser. And the CCA’s opinion in Bowser (73 M.J. 889), in accordance with normal practice, identifies the military judge by name: Christopher F. Leavey.

In Vargas, Judge Mink explains explains that some Air Force attorneys became dissatisfied “with Lt Col CL serving as a military judge in cases involving Article 120, UCMJ, allegations,” after his action in Bowser. Slip op. at 5. As a result:

After Lt Col CL’s decision in Bowser, the STC [Senior Trial Counsel] and one of the two special victims’ counsel (the SVC) stationed at Ramstein Air Base (AB), Germany, began to discuss ways to prevent Lt Col CL from hearing cases involving Article 120, UCMJ, allegations, or to have him removed from the bench entirely. The STC and the SVC had these discussions with each other and related discussions with other individuals within the Air Force Judge Advocate General’s (JAG) Corps, including the Third Air Force (3 AF) Staff Judge Advocate (SJA), the 31st Fighter Wing (31 FW) SJA, Air Force Government Trial and Appellate Counsel Division (JAJG) personnel, United States Air Forces in Europe Office of the SJA (USAFE/JA) personnel, and the Air Force Associate Chief of the SVC Division. Following a visit by the 3 AF SJA to the Ramstein SVC office in July 2014, the SVC asked the other Ramstein special victims’ counsel, who was then an active duty Captain (hereinafter the “former SVC”), “not to discuss or mention this meeting as it could be improper UCI, or words to that effect, and [the SVC] didn’t want defense or others to know there [was] a possible concerted effort to try and get Lt Col [CL] off the bench through ‘loss of confidence.’”

Slip op. at 5. None of these various Air Force judge advocates are identified by name or initials, but their concerted effort worked. “On 25 November 2014, Lt Col CL was removed from four cases involving Article 120, UCMJ, allegations, including Appellant’s case. . . . Lt Col CL remained detailed to one case involving at least one Article 120, UCMJ, allegation, in which he had already made pretrial rulings.” Slip op. at 6.

Lt Col Leavey was replaced as military judge in Vargas by Col Eller, who was Lt Col Leavey’s supervisor. The Defense then “submitted a motion for [Col Eller] to recuse himself from sitting as the military judge on [Vargas’] case and a supplemental motion to dismiss based on UCI due to the removal of Lt Col CL as the military judge.” Slip op. at 4. Judge Mink explains:

SDC submitted a motion for the military judge to recuse himself from sitting as the military judge on Appellant’s case and a supplemental motion to dismiss based on UCI due to the removal of Lt Col CL as the military judge in Appellant’s case.

Slip op. at 5.

In the end, however, Col Eller neither recused himself nor found unlawful influence. The CCA finds that the recusal ruling was error, and reverses the convictions (with a rehearing authorized).

Judge Mink explains that under R.C.M. 902(b), recusal is required:

(1) Where the military judge has … personal knowledge of disputed evidentiary facts concerning the proceeding.
(3) Where the military judge has been or will be a witness in the same case ….

Slip op. at 9 (marks in original). These circumstances are raised by the facts of this case because:

It is apparent from the record of trial that the military judge had personal knowledge of the circumstances of the removal of Lt Col CL as the original military judge in Appellant’s case. . . . Since the military judge was the person who removed Lt Col CL from Appellant’s case, the military judge was obviously a potential witness on the issue of the alleged UCI, regarding his own involvement with the removal decision as well as any knowledge he had regarding the Chief Trial Judge’s role in the removal. Consequently, the military judge was placed in the position of having to impartially determine whether he or his immediate supervisor, the Chief Trial Judge, had engaged in UCI or had been unlawfully influenced by the alleged removal effort.

Slip op. at 9-10. Furthermore:

It is also apparent that the military judge had personal knowledge of the alleged effort to remove Lt Col CL from cases involving Article 120, UCMJ, allegations, before removing Lt Col CL from Appellant’s case. . . .

The evidence presented by the Defense to the trial court on the UCI motion clearly established that discussions were occurring regarding an effort to have Lt Col CL removed from the trial bench or at least from cases involving Article 120, UCMJ, allegations based on dissatisfaction by some about Lt Col CL’s actions in prior cases involving Article 120, UCMJ, allegations. The extent of those discussions or effort was not completely established, but what is clear from the record is that after Lt Col CL himself notified the military judge of the information he had learned about discussions pertaining to the alleged effort to have him removed, Lt Col CL was, in fact, removed from four cases involving Article 120, UCMJ, allegations by the military judge. The reason or reasons for Lt Col CL’s removal are not clear, despite what Lt Col CL had been told about why he was removed, but it is only reasonable to conclude that the military judge knew precisely why Lt Col CL was removed from Appellant’s case.

Slip op. at 10.

Judge Mink also explains that:

“[A]ny conduct that would lead a reasonable [person] knowing all the circumstances to the conclusion that the judge’s impartiality might reasonably be questioned is a basis for the judge’s disqualification.” United States v. Kincheloe, 14 M.J. 40, 50 (C.M.A. 1982) (internal quotation marks and citation omitted).

Slip op. at 9 (marks in original). This is also raised by the facts of this case because:

Taken as a whole in the context of this trial, we find that the appearance of the court-martial’s impartiality was put into doubt by the military judge’s actions. Against the backdrop of the alleged effort being made by some to re-move a qualified military judge from a particular category of cases based on his unpopular actions in such cases, we find that a reasonable person observing Appellant’s court-martial would have substantial reason to question the military judge’s impartiality given his role in removing Lt Col CL from Appellant’s case and in having to assess whether he or the Chief Trial Judge had acted improperly in doing so. We also find that such doubts spring from the military judge’s status as a witness in this case, having knowledge of the disputed evidentiary facts about Lt Col CL’s removal from the case and the potential influence of the alleged removal effort. As a result, we find that the military judge abused his discretion by failing to recuse himself under R.C.M. 902(a).

Slip op. at 11.

The CCA concludes that reversal is required “to avoid undermining the public’s confidence in the military judicial process.” Slip op. at 12. That’s a conclusion that’s likely to make everyone unhappy, because:

  • Vargas faces another trial;
  • The alleged victims must testify anew;
  • The Senior Trial Counsel, Special Victims’ Counsel, and other associated Air Force judge advocates who caused Lt Col Leavey’s removal from sexual assault cases also caused a major case to be reversed; and
  • The public is left wondering if anyone will actually be held accountable.

27 Responses to “An Air Force senior trial counsel and a victims’ counsel conspire to prevent a military judge from presiding over sexual assault trials, succeed, win reversal of a sexual assault conviction”

  1. A Random JAG says:

    This is outrageous.  The idea that a random SVC or TC would be so brazen about their attempts to remove a qualified judge makes me question their judgment to be attorneys in the first place.  What a sneaky, underhanded attempt to circumvent the rule of law.  Those involved should lose their license.
    (Disclaimer:  I’m an SVC myself)

  2. K fischer says:

    So his lack of judicial temperament and professional courtesy are enough to remove MJ CL from cases, but only the Article 120 cases?  Otherwise, he was qualified and his temperament and professional courtesy were adequate to allow him to serve on drug and AWOL cases?  Is that what I just read?
    What is troubling is the amount of lawyers within all the layers of organizations consulted who knew about this and went along with it knowing it could constitute UCI evidenced with the request that the SVC did not discuss it because it might be construed as UCI.  What if the SVC hadn’t come forward.  
    Hey JAG Corps!  If you are worried about how your discussions might be viewed by others, then you might just want to consider that you about to step into some serious poo-poo.  And why would interviewing a military judge violate professional responsibility when you get to “interview” the military judge at arraignment if you want?  Quite frankly, I think that is a bit more professional than creating a record.  
    I learned of a reason to challenge a MJ based on a comment he made during a bridge the gap in a companion case the week before my case was set to begin.  I called the CoJ who was present at the BtG and I gave him my concerns.  We had an 802 because I didn’t want to have to file a motion that would have gone on the record, out of respect for the Bench.  The MJ had no qualms about discussing what he said and agreed to recuse himself.  I didn’t have any concerns about being a judge based on his comment.  It was just about that one case.  I don’t see anything wrong with that according to the rules of Professional Responsibility.
    But this?  This kind of stuff is unacceptable.

  3. Charlie Gittins says:

    Every one of the participants in this circle jerk should be named, relieved and BOI’d.   You don’t like a judge’s decision?  Appeal it.  You have Article 62, for crap sake and the USAF uses it to a farthee-well.  You don’t meet in back rooms, whisper and scheme to have the judge removed from his duties to which he was lawfully and properly appointed.  That a Circuit Judge and the Chief Trial Judge of the AF Judiciary permitted this to happen is enough to see them performing any job but that of a judicial officer — if they are even permitted to continue to serve.  Every time I think the MJ system has reaches a new low someone on the inside shows me that there are new lows yet to be achieved and then takes a big swing to go after the new low.  Air Force MJ is approaching Military Commissions levels of kagarooness.  

  4. David A. says:

    LtCol CL remained assigned to other cases. CL was only removed from Article 120 cases. CL had been assigned to this case but was removed early in the case processing. The eventual military judge removed him. The military judge had information imparted to him, but had not disclosed that information to the trial participants. USAF Chief Trial Judge: “it had absolutely nothing to do with a decision, ruling, or finding in a case in which [LtCol CL] was the judge.” Then, what was it?
    Ah, heck. This issue should have been resolved very early on. Now, bias, fairness, honesty, veracity, integrity, half truths,  judicial temperament, competency, withholding of information and evidence, and other negative factors may be at issue. The trial was expensive–15-days–and involved numerous pre-trial motions. The record of trial was voluminous, and appellate review alone consumed some 25 months. Retrial now looms, with all the repeated expense. This is definitely not good.

  5. k fischer says:

    Anybody else getting blocked by the AFCCA link?

  6. jagaf says:

    I can’t speak to actions in other cases, but I had a contested 120 case before Judge CL in 2015 while an SVC. I was assigned to the case from outside my normal region and thus had not practiced before Judge CL previously. I recall being told informally, early in my representation, that he had reputation as reflexively leaning against the prosecution or words to that effect. However, nothing in his conduct in court or his rulings raised any concerns for me or my client. He seemed like a fine and down the middle military judge. As a side note, sitting as a GCM in the case, he convicted my client’s assailant and handed down a punitive discharge and significant confinement. This entire episode is sickening.   

  7. RetiredMJ2015 says:

    Although I read CAAFLOG I have never posted a comment – so this is a first. (it is interesting that the DoD has blocked the site to AFCCA from external users) 
    I have some personal knowledge of this case – the chief of the trial judiciary and the trial judge on the case knew fully that the SVC leaders and the 3d AF SJA wanted Lt Col CL removed from the judiciary and they looked for a reason to make this possible (ala the Salyer case).
    It strikes me that the Air Force Court is using deflection in placing the blame for the result.  True, the military judge should have recused himself/herself from this case.  But the real issue here is the blatant manipulation of the system by the SVC leaders and senior judge advocates, not to mention the chief military judge.  UCI – you bet.  More so, there was a wholesale lack of ethics from the TJAG through the chief trial judge.  Either LTC CL was a competent judge, or he wasn’t (and by all accounts he was).  There is another issue – the SVC leaders had been keeping reports on the trial judges and were reticent to even admit this was the case.  Yet, there is circumstantial evidence that in 2015 the SVC leadership shared these reports with the assignments chief (JAX) as well as Lt Gen Burne.   Before Lt Gen Burne retires, he should be interviewed under oath as to his knowledge of the manipulation in this case, as well as in the Brandon Wright case.  After all, this is the same TJAG that tried, but failed, to have another military judge removed from the Brandon Wright court-martial by transferring him to the office of military commissions.

  8. Zachary D Spilman says:

    The CCA’s opinion is available here:

  9. NW says:

    The link worked this morning.  Perhaps JAJG, 3AF/JA, USAFE/JA, etc., etc. have conspired once again this time to remove the opinion not only from AFCCA’s site, but maybe even out of existence completely.  Vargas opinion?  What Vargas opinion?

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

    The website is blocked.
    How about a COURT-MARTIAL for everyone involved?  That ought to shake things up in the JAG Corps.

  11. Rich Stevens says:

    If all of this is accurate, how is it not more of a scandal?  Why aren’t names being named?  Jobs being lost?  Adverse paperwork being issued?  Complaints being made to the ethics and professional responsibility office?  One conviction may have been set aside, but how does that return confidence in a system in which some STC and SVC who have their nose out of joint can get a judge removed from any case, let alone a category of cases, because they perceive the judge is not receptive to their position?  And, for this to be based on the Judge’s rulings in Bowser…really?  The government looked so bad in that case, and looked either so ignorant of their discovery obligations or disdainful of them that to suggest the Judge is somehow biased for being forced to act in the way he did is unbelievable.  Please someone tell me that heads are rolling behind the scenes, we just haven’t heard about it?!  Because, if they’re not…there can be no confidence in this system.  Period. 

  12. NW says:

    Rich — why would you think heads are rolling behind the scenes when you have a situation that involved prosecutors (and amici prosecutoriae aka SVCs) at wing, numbered air force, major command and HQ levels involved??  The only head that might be rolling is that “former SVC” who had the guts to say something.  One would hope this would prompt an inquiry at the DoD-level, but it won’t.  A decision was made to remove a judge from Article 120 cases who might well be a good judge to go judge-alone for your forum and who would hold the prosecutors accountable for the cases they take to trial for one thing – more Article 20 convictions.  Why was Article 120 amended (and amended) – to get more Article 120 convictions.  Why was the SVC program created – to get more Article 120 convictions.  Why was Art 32 gutted – to get more Article 20 convictions.  Everything in the system has been impacted by the effort to get more Article 120 convictions because that’s what you do when you don’t have good facts to support your prosecution.  You should know by now that we have a military justice system and we have an Article 120 system.  Clearly Judge Leavey only had the temperament to serve as trial judge for the military justice system and not the Article 120 system.  Why was Judge Leavey removed from Article 120 cases – to get more Article 120 convictions!

  13. Anonymous says:

    Names are only named when you’re the accused. The USAF JAG gets professional bro passes when they do questionable things against the accused or defense. The SVC program? That’s just the CW’s personal, and free, Latham & Watkins to make sure the CW is heard on all fronts and protected by not getting charges against themselves. One of my accusers had an SVC because we had consensal sex. During my trial her SVC’s supervisor flew up from Travis AFB to “observe” her subordinate during trial…and to look at Pinterest on her phone. The DOJ needs to take over Art 120 cases. Cases like this prove that.

  14. DCGoneGalt says:

    It’s just the way military justice is today.  Nothing will be done to those responsible, the junior ones will be rewarded.
    It’s why, if you have an ounce of integrity or self-respect, you should leave military justice to be taken over by the POD People and collapse.
    Judge CL was fair and honorable.  That’s why this happened.

  15. Rich Stevens says:

    It just amazes me that in the comparatively trivial world of athletics, we Americans wag our fingers and shout our righteous indignation that Russian athletes rigged the system so they had an illegal and unfair competitive advantage that violated our American notions of fair play and the integrity of sport.  Yet, when the actual liberty and futures of accused American military members are on the line, the military justice system is constantly being barraged by attempts to rig the system – by agenda driven American politicians and by those within the American military system who march to that same drum.  No notions of fair play or the integrity of the system.  No concerns about pesky little issues like due process and presumption of innocence.  Where is the meaningful fall out?  Where is the widespread condemnation?  A conviction set aside here or there?  Some angry blog posts?  Rigging the system is the politically correct course of action these days…which used to be a very un-American concept.  We then move on to the next edition of the MCM and the yearly change in the military justice rules to benefit the prosecution.  I don’t know if you all recall how and why Charlie Gittins (who commented above) stepped away from the military justice system?  But, it’s this kind of disgusting nonsense that he was justifiably fed up with.  I stuck it out after the political fallout and systemic changes from the 2003 “Air Force Academy sexual assault scandal,” and I have (thus far) stuck it out through the political fallout and systemic changes from the 2012 “Air Force MTI sexual assault scandal”…but there have been more than a few days in which I have looked to do exactly what Charlie did, because I’m so tired of seeing what is becoming of this system, and what that means for those subject to the system.  Just very tired.    

  16. Disgusted says:

    I hear you Rich.  Don’t let it get you down.  Now is the best time to be a defense lawyer.  I for one, look forward to the opportunity to voir dire this trial judge who (1) removed judge CL from 120 cases; (2) pretended he didn’t know about the SVC/STC efforts to remove that same judge; then (3) denied the defense’s motion to recuse himself on grounds he wasn’t aware of anything improper.  (see page 10 of the opinion).  This judge should recuse himself from all future 120 cases.  He clearly has a vested personal bias in their outcome.  Also, IMO, a judge doesn’t have the moral fortitude to be a judge if he’s going to cave to pressures from the SVC bar.  

  17. Concerned Defender says:

    This is an indictment of the entire Military Justice system relating to the handling of “sex assault” cases.  It is simply a disgrace and there are so many prosecutors and SJAs with unbelievable power yet unbelievably bad decision making, often time crossing the boundaries to serious civil, ethical, or even criminal behavior.  
    We regular readers of CAAFlog have learned of witness tampering, hiding evidence, jury tampering, inappropriate personal relationships, concealed biases, Brady violations, false accusation, rule breaking, malicious prosecutions, and a host of other illicit behavior.  FAR too often  in our beloved Military JAG Corps.  It’s gone on long enough and messages MUST be sent. NOW.  Yet, I’m generally unaware of any real repercussions.  Oh, wait, one JAG Major who stepped out of line (Eric Burris?) and didn’t toe the message was hit with and convicted and given a staggering 20 year sentence on what most would say is a bogus rape allegation by a disgruntled ex-spouse.  TWENTY YEARS… for what appears to be an innocent man.  Because he was sideways with leadership and his ex-spouse.
    This dysfunctional MJ system is a direct threat to our national security.  Before you think that’s crock-pot talk, when you can effectively remove and destroy a male leader on little more than an allegation of wrongdoing, that is a SERIOUS internal threat to national security.  And in this case, we see the “true believers” use unlawful means to remove a MILITARY JUDGE with whom they disagreed.  Anybody in the know care to recommend military service to 18 year old men?  Or college graduates?  Not when they have a greater statistical odds of being accused of sex assault and facing punishment, than engaging in combat.
    This behavior is shocking to my conscience.  These are ATTORNEYS.  They are entrusted with unbelievable prosecutoral powers and military officers entrusted with extremely powerful decision making abilities.  
    This behavior needs to end.  Now.  If anyone in any power cares – really cares – about restoring a scintilla of faith in the MJ process, I’d suggest a full Congressional inquiry into this and take it very seriously.  Flag every officer involved in the allegation.  Report to their state bars to get them disbarred, and prosecute and/or BOI any of them for wrongdoing.  This is simply unbelievable.
    I voluntarily chose to leave a very enjoyable active duty career – in part – because I had seen so much disgusting unfair treatment of service members using the UCMJ as a sword against them.  I was simply unwilling to subject myself to the out-of-control power hungry SJAs and their attitudes running the Crim Law shops and this whole victim nonsense in the military totally hijacking the honest and fair dispensing of justice.  And I know a lot of others who did as well.

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

    And of course those involved in the scandal aren’t named.  We need some name-dropping and public shaming.  Absolutely ridiculous that there is no public shaming in this opinion of the wrong-doers.
    I also had a very enjoyable active duty career, kind of an unusual career track, but one that ended up serving me well.  At the time I left, I was wishing I could’ve stayed longer.  Now, it’s probably a good thing I left when I did.

  19. Nathan Freeburg says:

    Heads aren’t going to roll folks…and it’s not the first time something like this has happened in one of the services’ JAG branches.  All of the services did a horrible job in pushing back against the Invisible War narrative.  So that’s the narrative in society at large.  Then you throw in the current narrative in society at large and we’re all _______ed.  The military was told to get more 120 convictions, so they got more 120 convictions. 
    (There are some nuanced ways to push back against the current societal narrative but the military doesn’t do nuance.  For example, no civilian over the age of say 30, no matter what their politics, thinks Aziz Ansari committed a sexual assault.  But the military now sends identical allegations against service members to court martial.  That’s looney tunes, but here we are.  And it keeps me in business.)

  20. DCGoneGalt says:

    Name names?  The court even used position rather than rank and initials of those involved which means FOIA is necessary.  
    I assume the Air Force ethics body will ensure everyone is held accountable.  Hahahahahahahahahaha.

  21. Isaac Kennen says:

    I think it is probably prudent to voir dire every single trial judge in the Air Force concerning whether they have been exposed to pressures such as those used on Lt Col Leavey.  
    I also think any current trial judge who was prosecuting around the time of this occurrence should be queried during voir dire about their knowledge of this conspiracy to remove Judge CL, or (hopefully) lack thereof.  
    Given that AFCCA decided not to name names, it is not possible to know if your former-prosecutor-turned-trial-judge, was a conspirator, or consulted with a conspirator. This could not happen in a vacuum. AFCCA made judicial findings of fact that STCs and SVCs were involved in this conspiracy. I see no reasonable chance that folks assigned to JAJG or CLSV in the NCR were not following and consulting with those STCs/SVCs closely.  Anyone that touched this mess should have to explain to the accused – and heck, the government too (since the goal of a prosecution is justice) – why they should be trusted. A crook should not sit on the bench.

  22. Advocaat says:

    So which parts of this clown show qualify as dereliction of duty and/or conduct unbecoming an officer?

  23. Disgusted says:

    The first line of the opinion tells you who the supervising military judge was that removed Judge CL and refused to recuse himself.  Also see footnote 2.  As to the rest of the parties – maybe the govt will certify to CAAF and those judges will name drop?

  24. K fischer says:

     And there were four Vics in this case and Vargas got 29 years by a panel.  So, he doesn’t appear to be a good guy.  This is the result you get by cutting corners, not doing your job, and doing the wrong thing.  Bad dudes get their convictions reversed, and sometimes they get acquitted.  I wonder how that feels for the Vics in this case?

  25. Disgusted says:

    I wonder if the SVCs are working on a plan to replace Judge Mink?

  26. Ed says:

    Some of you know the names. Reveal them. Some of these lawyers deserve wrath.

  27. Zachary D Spilman says:

    Some of you know the names. Reveal them. Some of these lawyers deserve wrath.

    Do not do this. Be professional. If you think professional responsibility consequences are appropriate, file complaints with the appropriate officials. 

    Comments on this post are now closed.