This week at SCOTUS: The Solicitor General applied for and received an extension of time to file a cert. petition in United States v. Collins, No. 18A1257. CAAF summarily affirmed the Air Force CCA’s decision in Collins (noted here) in light of Briggs, and then it granted Collins a writ of habeas corpus (noted here).

I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking four cases:

This week at CAAF: CAAF has completed its oral argument schedule for the current term. The first argument of the 2019 term is scheduled for October 16, 2019.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Thursday, June 27, 2019, at 10 a.m.:

United States v. Bergdahl, No. 20170582

Issues:
I. Whether the President can unlawfully influence—within the meaning of Rule for Courts-Martial 104—a court-martial the President did not personally convene. The parties should be prepared to discuss the references to apparent unlawful influence by the Secretary of the Air Force in United States v. Boyce, 76 M.J. 242 (C.A.A.F. 2017).

II. If appellant has offered at least some evidence of unlawful influence, has the government demonstrated—beyond a reasonable doubt—that both (a) the appearance of unlawful influence did not place an intolerable strain on the public’s perception of the military justice system and (b) an objective, disinterested observer, fully informed of all the facts and circumstances, would not harbor a significant doubt about the fairness of the Convening Authority’s Action? If so, how?

III. If the Convening Authority’s Action was not free from unlawful influence, what—if any—remedy is required?

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on August 8, 2019.

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

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

19 Responses to “This Week in Military Justice – June 23, 2019”

  1. Cheap Seats says:

    Cooper was denied in the June 17th orders.

  2. Fisch says:

    Re: Bergdahl
    Yes he did.  His comments regarding the sentence was UCI.  The Convening Authority, if permitted to under the changes to the UCMJ, would have been disinclined to provide any clemency at action.  The public would have this perception.  Dismissal with prejudice.
    Thankfully his UCI only affected only one person and did not, with the help of two Senators, affect a class of offenses that resulted in numerous innocent men either being convicted or put through a show trial to CYA.

  3. Charlie Gittins says:

    I think it is UCI.  But if it is not UCI, it must clearly be a junior accuser issue — POTUS would be disqualified because of his personal statements about his beliefs and that disqualifies those junior to him.

  4. Concerned Defender says:

    UCI doesn’t negate the natural and probable consequences of a sentence following a guilty plea.  Nor should it.  While it’s dumb, really dumb, for leaders to discuss cases in public – that does not nor should it be a “get out of jail free” card for an accused.  
     
    Bergdahl pleaded guilty to charges of desertion and misbehavior before the enemy.
     
    With the WIDE range of options on the table, apparently Judge Nance gave an extraordinarily lenient sentence which basically amounted to a DD for what should have been far more severe.  I question Nance providing such leniency, given he left the CA and Courts nothing to strike away if there was an issue with any of the sentence.  A total windfall for Bergdahl that still bothers me as a Soldier.  The argument that he “served” confinement as a POW falls flat to my mind, as it’s the natural and probable foreseeable result of his own misconduct. 
     
    Let’s repeat that plea.  DESERTION.  MISBEHAVIOR BEFORE THE ENEMY.  If those aren’t squarely in the DD territory, and especially in light of no other tangible punishments, I don’t know what would be.  No jail time.  I find it just unbelievable, still. 
     
     

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

    I would imagine there’s a record where the CA said words to the effect of “I don’t care what POTUS thinks about this case.  A one-day desertion and misbehavior before the enemy with reduction to E-1 and a DD is not something I’m inclined to reduce.”  And there’s the end of it.  Government disproves BRD.  And no apparent UCI, since public perception seems to be predominantly that he got off light and deserved harsher punishment.

  6. Fisch says:

    CD, 
     
    I understand and could agree with you that he got a light sentence.  But, the Court apparently is requiring counsel to be ready to discuss Boyce, regarding apparent UCI.  If POTUS expresses his disgust with the performance of the MJ on the Court-martial, then what is the public’s perception regarding the fairness of the Convening Authority’s action where he could have dismissed the charges?  
     
    Tami, I understand that the public, if educated on all the facts of the case, would doubt the fairness of the proceedings, or something like that, is the standard.  But, is the public’s perception going to be introduced into evidence?  What about those people who believe that Nance was too harsh in his sentence, in that Bergdahl will never get VA benefits after being a prisoner for 5 years?
     
    Just so we are calling balls and strikes here regarding the issue of UCI because it swings against all offenses.  What if during the Lorge/Crawford/Barry saga, President Obama tweeted “Patrick Lorge testified that a SEAL convicted of rape should have had a new trial.  Disgusting.  Pretty clear the Navy will give a star to anyone these day!”    Would that be UCI?  Would you think that any judge would  feel comfortable acquitting him if there was a new trial?

  7. stewie says:

    Today’s hyper-partisan age has now extended to discussions of UCI. The people screaming it during Obama are some of the same people demurring during Trump.

  8. Fisch says:

    And those who demurred during Obama’s term are screaming it during Trump……
     
    Glad to see that I am in the fine company of Mr. Gittens who has not demurred in either administration.  We call UCI when we see it, no matter who is pitching.  Then again, it might not be a partisan issue at all; perhaps we are the only two with the intelligence enough to understand the purpose and application of Article 37.  
     
    CAAF and pretty much every military judge who addressed the UCI issue during 44 demurred.  (Marcus Fulton is exempt from that group, btw.)  But now, the ship carrying the prohibitions against UCI must be set back on course. Hopefully, a forcefully written opinion will send a message to future Commanders in Chief to choose their words wisely and comply with the UCMJ they are duty bound to enforce.

  9. stewie says:

    Two points:
    1. Obama didn’t address a singular case. His issues were more general in nature.
    2. His comments were ill-advised too, but as noted in one, they were dispersed in impact somewhat.
    I’d prefer a CIC to be above it at all times, but I also think there’s a distinction between talking about a class of cases generally, and talking about a singular case specifically.

  10. Fisch says:

    Stewie, 

     
    1. Obama didn’t address a singular case. His issues were more general in nature.

     
    If you said, “Obama didn’t address a singular case that dealt with one accused.  His comments addressed a specific class of offense, for which the vast majority of Military Accuseds face Courts-martial” then I think you would be demur-free.

    2. His comments were ill-advised too, but as noted in one, they were dispersed in impact somewhat.

     
    A less demurring person might say, “His comments were ill-advised because they were UCI, too.”
     
    And, dispersed in impact somewhat…..you mean like the difference between a sniper rifle and a shotgun blast?  Because I agree with you on that one, the impact was dispersed on many accused who faced Nifongian Courts-martial.
     

  11. stewie says:

    First of all, I said “a class of cases” so  your first comment seems a bit…redundant and kinda ignoring what I actually typed.
    Second, what he said was not remotely like what Trump said. He said “those found to be responsible should be prosecuted, stripped of their positions, court-martialed, fired, dishonorably discharged,” and that he had “no tolerance” for sexual assault in the military.
     
    The clear response to that is, generally, well, yeah. If you find someone has committed sexual assault, they probably should have all of those things happen to them. And today Congress has enshrined that into the law with mandatory minimums that more or less cover the last two.
     
    Now, at the time, it wasn’t enshrined and a full range of punishments remained available including no punishment, and so while generally not necessarily problematic, the trouble was in the details…as some kinds of sex assault don’t get that kind of treatment, and of course there’s always a concern that some military members will be overly enthusiastic to effectuate the President’s believed intent to the detriment of the rights of Soldiers to a fair trial. Which was why the comments were ill-advised.
     
    The OTHER difference is that at least the Obama administration attempted to clarify things:
    “The president was absolutely not trying to be prescriptive,” said Kathryn Ruemmler, the White House counsel. “He was listing a range of examples of how offenders could be held accountable. The president expects all military personnel who are involved in any way in the military justice process to exercise their independent professional judgment.”
     
    Meanwhile, Trump said:
    “The decision on Sergeant Bergdahl is a complete and total disgrace to our Country and to our Military.”
    He called him a traitor among other things and even though most of his many comments were made as a candidate, he more or less brought them forward as President by referencing them collectively in a tweet as President: “I think people have heard my comments in the past.”
    So yes, in total, Obama’s one comment was, in fact, dispersed. And yes, it was, in fact, different qualitatively and quantitatively from what Trump did.
    Should Obama have said it? Nope. Did it have the same intent behind it? Not remotely. Did he repeatedly say it? Nope. Was the comment later clarified in the case of Obama? Yes. (I know, I know you will say because Obama didn’t personally clarify it, it doesn’t count). Did Trump clarify? ahhahahahahaha.
    And ultimately, do I believe panels were convicting innocent people because of a singular Obama general comment? Nope.
     

  12. Philip D. Cave says:

    Re Stewies comments.
     
    Yes, we litigated the Obama statements.
     
    But don’t forget that after the statement and litigation began SecDef came out with an “alibi letter,” which we saw as part of the government’s response on the motions.
    https://www.theatlantic.com/politics/archive/2013/08/chuck-hagel-instructs-military-ignore-obama-sexual-assault/312146/

  13. stewie says:

    “There are no expected or required dispositions, outcomes or sentences in any military justice case, other than what result from the individual facts and merits of a case and the application to the case of the fundamentals of due process of law.”
    I’m pretty sure Hagel didn’t go rogue (or rouge) and say that without the administration knowing he was going to do it. So, again, this is a difference between the two administrations. One administration recognized there could be a problem and took multiple steps to address it, the other one…did not…but stood around as the CiC poured fire on the problem instead.

  14. Fisch says:

    Stewie, 
    I completely agree with you on Trump’s UCI.  Vitriol directed at one person’s case and at the Judge who decided the case.  No retraction.  Double downed post trial, even after he was provided cover for the statements he made during the campaign.  No excuses.  Completely inappropriate as the Commander in Chief no matter how much the public agreed with him.  Stupid.  Illegal.  And a complete violation of Article 37.
    But statements by the Commander in Chief that display an inflexible disposition towards certain offenses can affect many people serving in our Armed Forces.  They aren’t “ill-advised.”  They are UCI and completely inappropriate because you can’t exactly pinpoint the effect on a large number of cases due to the dispersion.  They cast a shadow of the fairness of the Courts-martial which are convened for those offenses.  Do you think there is a perception of unfairness of the investigation and prosecution of sex crimes in the military?  
    And during a period of time when Congressional influence was running rampant as evidenced by the statements of three lawyers who became TJAG for their respective services, 44 should have used that moment to put some sanity back into the dialogue regarding sexual assault. Instead, he let Senators Gillibrand and McCaskill run roughshod over the military with their screeching and influence and sent out his lackey to say, “Disregard what the Commander in Chief said and follow the Judge’s instructions.” Yeah, that was an effort and it was more than Trump who did nothing.  You are correct about that.
    Had there been a more forceful statement about due process in the UCMJ back in 2013, I wonder if this guy would have felt as comfortable spouting off the way the Air Force’s answer to M. MacDonald did at this Court martial:
    https://www.armfor.uscourts.gov/newcaaf/opinions/2018OctTerm/180372.pdf?fbclid=IwAR0fU-nLT57P1r3rWgn-MZYYpOYIu6IWoCzt8xJC2NQ6xz3TFmXoI4WZMVU

  15. stewie says:

    So now you are blaming Obama for Congress? Come on. Congress is its own beast. Gillibrand isn’t going to be cowed by anyone, Obama included.
    Congress BY FAR had more of an impact on the perception of sexual assault in the military, and they CAN’T commit UCI. Obama is looking for keys where the light is because it’s easy, not because the keys are actually there.

  16. Fisch says:

    I am not blaming President Obama for Congress because we all learned that the Executive Branch does not control the Legislative Branch. 
     
    What I am saying is that as Commander in Chief and the head of the Executive branch of our government, he failed to temper the influence of Congress, the legislative and oversight branch of our government, on the people within his control.  On the contrary, his statements were in lockstep with the overzealous influence of Gillibrand and McCaskill and appeared to ratify their statements and actions, which have been documented in two appellate opinions to have affected three TJAG’s across two services. 
     
    I agree that no POTUS, not even a Democrat POTUS, is going to be able to change Gillibrand’s perceptions, statements, or actions.  But, POTUS can provide balance to the UCMJ by demanding that the personnel in the Executive branch not be improperly influenced by Congress
    and enforce due process afforded the accused during a Court-martial.  Instead, he took the opportunity to express an inflexible disposition towards a certain class of offenses.  He committed UCI.  
     
    It seems the essence of our disagreement is which type of UCI is more deleterious on military justice.  You seem to be arguing that a direct statement against a specific Accused’s case and the military judge who decided the case is worse than expressing an inflexible disposition towards certain offenses.  Taking the political players out of the equation, my opinion is that a Commander in Chief who makes a statement about a specific case involving a specific accused and castigates the military judge for the sentence is the most clear cut case of UCI you can have and is probably far more stupid to defend than expressing an inflexible disposition towards certain offenses.  But the impact of the former is limited to one case. 
     
    Therefore, I believe that a Commander in Chief who expresses an inflexible disposition towards a certain offense can affect far more accuseds who are accused of that offense in that CID might not search for exculpatory evidence as much, TC’s will push prosecutions on frivilous cases, Commanders will refer cases, and jurors might convict on factually insufficient cases because the Commander in Chief says we have a problem that we have to root out.  A Commander in Chief has a duty to reign in the influence of Congress on the people within his, or her possibly in the future, chain of command, so those who are tried at Courts-martial on sex offenses are given actual due process, and not the dog and pony show we’ve seen in many post 2010 cases where the conviction cannot be supported by sufficient evidence.

  17. Nathan Freeburg says:

    On one hand you have structural UCI in the system when dealing with Article 120 cases.  It’s pernicious and has led to some horrible outcomes.  It’s also very difficult to resolve.  What’s the remedy?  Dismissing all 120 cases?
    UCI on a specific case is something that can be easily remedied.  So the system is naturally going to gravitate toward dealing with the latter and not the former.

  18. Fisch says:

    Nathan, 
     
    Read this opinion:  https://www.armfor.uscourts.gov/newcaaf/opinions/2018OctTerm/180372.pdf?fbclid=IwAR0fU-nLT57P1r3rWgn-MZYYpOYIu6IWoCzt8xJC2NQ6xz3TFmXoI4WZMVU
     
    Take particular notice of the note on page 12 regarding the SVP’s actions in that case and how the court condemned those actions.  At least address the actions as UCI because it appears that some higher ranking people in our Services JAG Corps don’t they are a big deal. 
     
    And, you would not have to dismiss all 120 cases.  With regards to UCI, I would have done what Cmdr. Marcus Fulton did and take away the panel’s ability to sentence the accused to a DD or dismissal or a reduction in rank until the President was no longer Commander in Chief.  But, even if you did dismiss them all without prejudice, then perhaps we could see just how good the military was actually handling sex assault cases prior to 2012 before Gillibrand and McCaskill began their influence if we made the DOJ and civilians handle all sex offenses.  Swear in all the SVP’s as SAUSAs and prosecute them in Federal Court.  See how that goes with civilian jurors who have been indoctrinated with sexual assault myths every April.

  19. stewie says:

    I think you talk about types of offenses as if they are all equal. Murder, rape, child molestation are a crime apart from your average crimes. Pretending they are just “a class of offenses” is not accurate IMO.
     
    Saying, I don’t like people who go AWOL or steal or what have you and they should all be tried and fired is different from saying what Obama said about sex assault. There’s degrees here. If he’d said it about murder would we think that some panel might ordinarily give some a light sentence for murders generally, but because he said, hey, if someone murders someone, we need to prosecute them and get rid of them…I have no tolerance for that.
     
    Isn’t the response, well, duh? Of course not. Who has tolerance for murder? Or rape? Or child molestation?
     
    Now, is there a small universe of exceptions where this or that case deserves leniency? I’m sure. Is that case now not going to get leniency because of a general statement by Obama? Or any President? No, I don’t think so.
     
    I’d remind also that Obama said nothing about incarceration. He just said removal and a DD. And before someone says well if you have removal and a discharge you are going to have jail time, I have personal unfortunate knowledge of a panel convicting someone of rape. Not sex assault. Rape. And then giving Article 15 punishment and no kick. After Obama’s statement.
     
    The problems with how sex assault cases are prosecuted have precious little to do with the executive branch, and everything to do with the Congress.
     
    And yes Fisch, I think a direct, specific, and palpable intrusion into a single AWOL/Desertion case by the CiC is worse than an amorphous, general, and somewhat obvious statement about intolerance for sexual assault.