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Considering the effective date for the new Article 60(d) – NDAA Sec. 1706: “Participation by victim in clemency phase of courts-martial process”

In part five of my six part series about the military justice reforms in the FY14 NDAA, I discussed sections 1702 and 1706 of the NDAA (complete NDAA text available in Word here and in PDF here). Both of these sections made changes to Article 60, which gives the convening authority the power to act on the findings and sentence of a court-martial. Section 1702(b) of the NDAA completely rewrote Article 60(c) of the UCMJ, implementing major changes that limit a convening authority’s previously-unlimited power to disapprove a finding of guilty or reduce a sentence. Section 1706 of the NDAA created a new Article 60(d) that gives “a victim” the opportunity to submit matters to the convening authority before the convening authority takes action on the results of the court-martial.

Within section 1702 is express language making it effective 180 after enactment. But section 1706 does not include such language. Because of this, I made the following statement in part five of my series:

The change to Article 60(c) won’t take effect for six months, but Congress also created a new Article 60(d) in Section 1706 of the NDAA. The new Article 60(d) is effective immediately, and it gives “a victim” the opportunity to submit matters to the convening authority before the convening authority takes action on the results of the court-martial.

I’ve since learned of an alternative interpretation that reads the NDAA to make both sections 1702 and 1706 effective 180 days after enactment. I suspect that this interpretation is based on the fact that at the beginning of section 1706 are the words “…as amended by section 1702…,” and that the alternative interpretation reads this language to incorporate the effective date from section 1702 into section 1706. But for the following reasons I respectfully disagree with this interpretation, and I maintain my belief that Congress intended a victim to have the right to submit matters immediately.

For starters, let’s review sections 1702 and 1706 of the NDAA. Section 1702 (PDF excerpt) includes changes to both Article 32 and Article 60 in a total of four subsections:

Subsection (a): Creates the new Article 32. Not relevant to this discussion.
Subsection (b): Rewrites Article 60(c), limiting the convening authority’s power.
Subsection (c): Conforming amendments to modify other references to Articles 32 and 60(c).
Subsection (d): The effective date provisions.

Section 1706 (PDF excerpt) has just three subsections:

Subsection (a): Creates the new Article 60(d), the victim’s right to submit matters (and moving the old (d)&(e) to (e)&(f)).
Subsection (b): Adds language to Article 60(b) about consideration of the victim’s character.
Subsection (c): Conforming amendment to modify a reference to Article 60(d) (now (e)).

The effective date provisions in section 1702(d) are:

(d) Effective Dates-
(1) ARTICLE 32 AMENDMENTS- The amendments made by subsections (a) and (c)(3) shall take effect one year after the date of the enactment of this Act and shall apply with respect to offenses committed under chapter 47 of title 10, United States Code (the Uniform Code of Military Justice), on or after that effective date.
(2) ARTICLE 60 AMENDMENTS- The amendments made by subsection (b) and paragraphs (1) and (2) of subsection (c) shall take effect 180 days after the date of the enactment of this Act and shall apply with respect to offenses committed under chapter 47 of title 10, United States Code (the Uniform Code of Military Justice), on or after that effective date.

But section 1706 doesn’t include any express effective date, leading to my belief that it was effective at enactment. However, section 1706 does begin with the following language, which I believe is the source of the alternative interpretation:

(a) Victim Submission of Matters for Consideration by Convening Authority- Section 860 of title 10, United States Code (article 60 of the Uniform Code of Military Justice), as amended by section 1702, is further amended

(emphasis added).

I don’t agree that this language adopts the effective date from section 1702(d)(2) for four reasons: This language is necessary for another purpose, the effective date in 1702 is expressly limited to certain subsections, Congress’ exclusion of an effective date from 1706 is presumably deliberate, and there are good reasons to see Congressional intent for immediate implementation of a victim’s right to submit matters.

First, this language is necessary for another purpose. The conforming amendments in section 1702(c)(1) make changes to Article 60(d) and (e) prior to their redesignation as Article 60(e) and (f) by section 1706. Without the “as amended by” language in section 1706, a literal interpretation of these changes in section 1702 would lead to an absurd result because they would modify the wrong things. Under my interpretation, the “as amended by” language doesn’t delay implementation, but it also is not mere surplusage.

Second, the effective date in 1702 is expressly limited to “subsection (b) and paragraphs (1) and (2) of subsection (c)” of section 1702. If Congress wanted this to apply more broadly (such as to all changes to Article 60), it would have said so. Under my interpretation, Congress meant what it said.

Third, under the statutory construction principle of expressio unius est exclusio alterius (to express or include one thing implies the exclusion of the other), Congress’ express delay of certain enumerated provisions must be read to exclude delay of all the unenumerated provisions. Under my interpretation, Congress didn’t mean what it didn’t say.

Fourth, Congress was undeniably focused on giving a victim a greater “voice” in the court-martial process, and delaying the implementation of section 1706 doesn’t advance that purpose (the delay in the new Art. 32 is distinguishable based on the scope and nature of the change, and the SVC statute delay is distinguishable based on the existing and redundant 10 U.S.C. § 1565b). Under my interpretation, Congress’ intent to maximize victim participation is fulfilled.

Of course, there are pragmatic reasons to want to believe that 1706 is delayed for 180 days, the least of which is the fact that implementation might be difficult (as I discussed in part five of my series, ending with my assertion that “Being a Staff Judge Advocate just got a lot harder.”). SJAs would probably like to postpone the effective date of this new rule. The same is true of defense counsel, who undoubtedly prefer the old rule that lets a convicted service member make a clemency submission without the possibility of contradiction by a victim. This is one of those unusual situations where the defense and the SJA are on the same side in an argument. The problem is the identity of the counter-party: The victim and the special victims’ counsel, who have the ear of Congress, the attention of the press, and a growing extraordinary writ practice.

Soon, a victim will offer a clemency submission and a SJA will advise the convening authority to disregard it based on the interpretation that the new statute is not yet effective. The victim – who now has a conviction to prove the veracity of the allegation and a special victims’ counsel who isn’t afraid to pick a fight – will then complain, file petitions, etc., and those in Congress who seek to strip commanders of even more authority will have additional ammunition for their fight. So, while a SJA may want to read section 1706 as effective at a future date, such a reading is politically treacherous.

That’s not to say that there is no danger in my interpretation, but I think the danger is much less. Specifically, if a victim’s clemency submission is accepted now, and an appellate court later determines that 1706 isn’t supposed to be effective until 180 days after enactment, the court will find error. But I doubt that any court will reach such a conclusion. This doubt is based both on the four reasons discussed above, and also because remedying such an error might be impossible (since unlike other parts of the NDAA, section 1706 is in no way limited to offenses occurring after its effective date, meaning that a remand for a new action after 180 days will trigger the new rule, guaranteeing the victim the right to submit matters anyway).

I also see an added advantage to my interpretation that is best illustrated by imagining the alternative. Imagine that a SJA takes the position that section 1706 isn’t effective until 180 days after enactment. This imaginary SJA then takes some action based on this position (authors a policy memo, rejects a victim’s clemency submission, etc.). But then the SJA reverses course for some reason (a victim complains, the SJA reads this blog post, etc.). Now the defense alleges the error, and it uses the SJA’s own work product against the new interpretation, creating a big, embarrassing mess.

Had this imaginary SJA started with my interpretation and stuck to it, there may be a difference of opinion, but the mess is avoided.

2013 Changes to the UCMJ – Part 6: Practice notes

This is part six of a series of posts discussing the military justice reforms in the National Defense Authorization Act for Fiscal Year 2014, signed into law by the President on December 26, 2013. The full series is available at this link.

After working through the military justice provisions in the NDAA and writing this series of posts, it’s clear that the first practice note is that it’s important for you to read the new provisions for yourself. It’s worth at least skimming all 38 military justice provisions from the NDAA in this bookmarked PDF. I also recommend using our Word version of the UCMJ, and reading in full:

  • Article 6b (“Rights of the victim…”). Also check out the Crime Victims’ Rights Act (18 U.S.C. § 3771).
  • The future Article 32 (discussed in this post).
  • The new Article 46 (discussed in this post).
  • The future Article 60(c) and the new Article 60(d) already in effect (discussed in this post).
  • The future Article 56 (sex offense mandatory minimums) and Article 18 (jurisdiction for the mandatory minimums).

I think that there are more potential pitfalls for prosecutors than for defense counsel in the new rules. For starters, prosecutors need to be more cautious when making charging decisions. Charging the most serious sex offenses will implicate the mandatory minimums and the restrictions on the convening authority’s ability to reduce a sentence, even when there is a PTA. They will also invoke the requirement for review if not referred to trial. A victim named in a specification will have the option to refuse to participate in the Article 32 preliminary hearing, and the VWAP process will likely get more attention now that victims shall have an opportunity to submit post-trial matters. The trial counsel must also affirmatively act to invoke the victim-interview provisions of Article 46(b).

But there’s plenty of danger for defense counsel, who will need to get more creative in presenting a case under the future Article 32. And the mandatory minimums are hard to avoid, even when the accused pleads guilty, unless the plea is to a lesser offense that doesn’t have a minimum. There’s also the issue of the recommendation from a trial counsel for sentence reduction in recognition of substantial assistance. Such a recommendation isn’t required in a case with a pretrial agreement and no mandatory minimum sentence, but it’s going to be a distinguishing feature of a deserving accused. Wherever the facts support such a recommendation, defense counsel should try to get it, perhaps as a term of the PTA. And the defense has to tread carefully around the victim-interview provisions of Article 46 (for now, at least).

Both sides will get much more familiar with the deposition rules once victims can refuse to participate in an Article 32. And both sides will have to watch out for pitfalls from the provisions that don’t take effect until the future and apply only to offenses committed on or after their effective date (Articles 32 and 60(c), and the mandatory minimums). The normal practice of combining all known offenses into a single court-martial will create situations where two separate versions of the Code to apply to a single case. For example, offenses committed in November, 2014, and in January, 2015, and destined for the same general court-martial, will require two separate Article 32 proceedings (one an “investigation” of the November offenses, and the other a “preliminary hearing” on the January offenses). Similar difficulties will arise late this summer, when convening authorities start acting on cases that both pre- and post-date the new Article 60(c).

Both sides will likely fight Special Victims Counsel, who may yet try to appear on behalf of an alleged victim who is a civilian not authorized to receive legal assistance, in violation of the new 10 U.S.C. § 1044e.

And the post-trial process, already the source of much confusion and delay, will only become more confusing and time-consuming now that a victim has the right to submit post-trial matters.

Speaking of victims, I count five separate definitions of “victim” in the new provisions:

The new Article 6b defines a victim as:

(b) Victim of an Offense Under This Chapter Defined- In this section, the term ‘victim of an offense under this chapter’ means a person who has suffered direct physical, emotional, or pecuniary harm as a result of the commission of an offense under this chapter (the Uniform Code of Military Justice).

The future Article 32 defines a victim as:

(h) Victim Defined- In this section, the term `victim’ means a person who–
(1) is alleged to have suffered a direct physical, emotional, or pecuniary harm as a result of the matters set forth in a charge or specification being considered; and
(2) is named in one of the specifications.

The new Article 46(b) defines a victim as any:

. . . alleged victim of an alleged sex-related offense who trial counsel intends to call to testify at a preliminary hearing under section 832 of this title (article 32) or a court-martial under this chapter . . .

The new Article 60(d) defines a victim as:

(5) In this section, the term ‘victim’ means a person who has suffered a direct physical, emotional, or pecuniary loss as a result of a commission of an offense under this chapter (the Uniform Code of Military Justice) and on which the convening authority or other person authorized to take action under this section is taking action under this section.

And the new 10 U.S.C. § 1044e (the SVC statute) defines a victim as:

…An individual eligible for military legal assistance under section 1044 of this title who is the victim of an alleged sex-related offense [defined as attempted or completed violations of Articles 120, 120a, 120b, 120c, or 125]

Besides the absurdity of so many various and vague definitions for “a victim,” I’m struck by the difference in the definitions in the victims’ rights statute (Article 6b) and the post-trial matters statute (Article 60(d)) (as discussed in part 5 of this series). Both encompass “direct physical, emotional, or pecuniary” effect, but Article 6b requires only “harm” while Article 60(d) requires actual “loss.” This difference isn’t just semantic. An appellant could win a new post-trial action based on denial of clemency after the convening authority considered matters submitted by a victim who suffered only “harm,” and not actual “loss.”

This tangent into the definition of victim isn’t without a purpose. Military law is a large and growing body of jurisprudence. While the reforms in the NDAA made some dramatic changes in the military justice system, they are neither impervious to judicial interpretation nor do they make the system unrecognizable. Commanders are still the dominating force, the roles and responsibilities of counsel, military judges, and members are largely unchanged, and we’ll have plenty to write about.

2013 Changes to the UCMJ – Part 5: Post-trial matters

This is part five of a series of posts discussing the military justice reforms in the National Defense Authorization Act for Fiscal Year 2014, signed into law by the President on December 26, 2013. The full series is available at this link.

In prior posts of this series I discussed aspects of military law, such as discovery rules and the pretrial investigation, that developed a century ago. Command discretion is another ancient part of our law. But the “Elimination of Unlimited Command Prerogative and Discretion” in Section 1702(b) of the FY14 NDAA isn’t the first time Congress has restricted a commander’s ability to modify the findings and sentence of a court-martial. Rather, it’s merely the first time Congress has done so to the possible detriment of an accused.

During congressional hearings in 1919, Major General Enoch H. Crowder, The Judge Advocate General of the Army, discussed regulations that actually permitted a commander to return a case for reconsideration of an acquittal or to increase a sentence (link to transcript). General Crowder presented Congress with a review of 1,000 cases, of which 56 were returned to the members for reconsideration of acquittals. Of these 56 cases, an acquittal was changed to a conviction in a whopping 18 (one third). This provoked popular outcry and press attention, and in 1920 Congress revised Article 40 of the Articles of War to expressly prohibit returning a record for reconsideration of an acquittal or increasing the severity of a sentence (old text) (new text) (and this prohibition still exists within Article 60).

Popular and press outrage is now focused on the exact opposite scenario: Lieutenant General Franklin’s action that changed a conviction into an acquittal in the Wilkerson case (our #5 story of 2013). And just as Congress removed the ability to change an acquittal into a conviction or increase a sentence in 1920, Congress now limits a commander’s ability to reverse a conviction or reduce a sentence.

In Section 1702(b) (that will not take effect until June 24, 2014 – 180 days after enactment) Congress rewrites Article 60(c) of the UCMJ to limit a convening authority’s ability to modify either the findings or the sentence of a court-martial. Current law permits a convening authority to set aside any finding of guilty, either entirely or by substituting a finding of guilty to a lesser included offense. It also gives the convening authority unlimited discretion to disapprove any part or all of a sentence. But the future law allows modification of the findings or sentence only in certain cases.

The full text of the future Article 60(c) follows:

(c)
(1) Under regulations of the Secretary concerned, a commissioned officer commanding for the time being, a successor in command, or any person exercising general court-martial jurisdiction may act under this section in place of the convening authority.
(2)
(A) Action on the sentence of a court-martial shall be taken by the convening authority or by another person authorized to act under this section. Subject to regulations of the Secretary concerned, such action may be taken only after consideration of any matters submitted by the accused under subsection (b) or after the time for submitting such matters expires, whichever is earlier.
(B) Except as provided in paragraph (4), the convening authority or another person authorized to act under this section may approve, disapprove, commute, or suspend the sentence of the court-martial in whole or in part.
(C) If the convening authority or another person authorized to act under this section acts to disapprove, commute, or suspend, in whole or in part, the sentence of the court-martial for an offense (other than a qualifying offense), the convening authority or other person shall provide, at that same time, a written explanation of the reasons for such action. The written explanation shall be made a part of the record of the trial and action thereon.
(3)
(A) Action on the findings of a court-martial by the convening authority or by another person authorized to act under this section is not required.
(B) If the convening authority or another person authorized to act under this section acts on the findings of a court-martial, the convening authority or other person—
(i) may not dismiss any charge or specification, other than a charge or specification for a qualifying offense, by setting aside a finding of guilty thereto; or
(ii) may not change a finding of guilty to a charge or specification, other than a charge or specification for a qualifying offense, to a finding of guilty to an offense that is a lesser included offense of the offense stated in the charge or specification.
(C) If the convening authority or another person authorized to act under this section acts on the findings to dismiss or change any charge or specification for an offense (other than a qualifying offense), the convening authority or other person shall provide, at that same time, a written explanation of the reasons for such action. The written explanation shall be made a part of the record of the trial and action thereon.
(D)
(i) In this subsection, the term ‘qualifying offense’ means, except in the case of an offense excluded pursuant to clause (ii), an offense under this chapter for which—
(I) the maximum sentence of confinement that may be adjudged does not exceed two years; and
(II) the sentence adjudged does not include dismissal, a dishonorable or bad-conduct discharge, or confinement for more than six months.
(ii) Such term does not include any of the following:
(I) An offense under subsection (a) or (b) of section 920 of this title (article 120).
(II) An offense under section 920b or 925 of this title (articles 120b and 125).
(III) Such other offenses as the Secretary of Defense may specify by regulation.
(4)
(A) Except as provided in subparagraph (B) or (C), the convening authority or another person authorized to act under this section may not disapprove, commute, or suspend in whole or in part an adjudged sentence of confinement for more than six months or a sentence of dismissal, dishonorable discharge, or bad conduct discharge.
(B) Upon the recommendation of the trial counsel, in recognition of the substantial assistance by the accused in the investigation or prosecution of another person who has committed an offense, the convening authority or another person authorized to act under this section shall have the authority to disapprove, commute, or suspend the adjudged sentence in whole or in part, even with respect to an offense for which a mandatory minimum sentence exists.
(C) If a pre-trial agreement has been entered into by the convening authority and the accused, as authorized by Rule for Courts-Martial 705, the convening authority or another person authorized to act under this section shall have the authority to approve, disapprove, commute, or suspend a sentence in whole or in part pursuant to the terms of the pre-trial agreement, subject to the following limitations for convictions of offenses that involve a mandatory minimum sentence:
(i) If a mandatory minimum sentence of a dishonorable discharge applies to an offense for which the accused has been convicted, the convening authority or another person authorized to act under this section may commute the dishonorable discharge to a bad conduct discharge pursuant to the terms of the pre-trial agreement.
(ii) Except as provided in clause (i), if a mandatory minimum sentence applies to an offense for which the accused has been convicted, the convening authority or another person authorized to act under this section may not disapprove, otherwise commute, or suspend the mandatory minimum sentence in whole or in part, unless authorized to do so under subparagraph (B)

This provision looks complicated, and it places a lot of limitations on a convening authority, but it’s pretty easy to understand if considered in three parts.

The first part is paragraphs (1) and (2). These largely maintain the current procedure, except that paragraph (2)(C) requires the convening authority to provide a written explanation for any reduction in the sentence (except for a “qualifying offense,” but the term is not defined in this paragraph, though it is defined in paragraph (3)). As a practical matter, convening authorities often provide such explanation already, by justifying any sentence reduction as either required by a pretrial agreement, as an act of clemency, or as a remedy for legal error.

The second part is paragraph (3). This is the big change, addressing disapproval of a finding of guilty, either outright or by approval of a lesser included offense. Under the new provision (effective on June 24, and only for offenses committed on or after that date), a convening authority may not disapprove a finding of guilty, or reduce the finding to guilty of a LIO, unless the original finding is guilty of a “qualifying offense.” A qualifying offense is one that meets two criteria:

  1. The maximum authorized punishment for the offense includes confinement for two years or less; and
  2. The adjudged sentence does not include dismissal, a dishonorable or bad-conduct discharge, or confinement for more than six months.

Additionally, offenses under Articles 120(a), 120(b), 120b, and 125 will never be qualifying offenses (though their maximums are too high anyway). But more significantly, the Secretary of Defense may exclude other offenses by regulation. This means that the Secretary could, if he wanted to, prohibit disapproval or reduction of a finding of guilty in every case.

Curiously, paragraph (3)(C) requires a written explanation for the disapproval or reduction of a finding of guilty “for an offense (other than a qualifying offense).” This directly contradicts paragraph (3)(B), which allows such disapproval or reduction only in the case of a “qualifying offense.” Congress probably intended to require a written explanation for changing a finding of guilty of a qualifying offense, but that’s not what the law says. In my discussion of the changes to Article 32, I commented that “there’s reason to believe that even Congress doesn’t quite understand what it’s done.” Ditto with this provision.

The third part is paragraph (4), which addresses reduction of the sentence. This part appears to be the most complicated, but really has its own three simple rules:

  • First, there are no restrictions on reducing sentences that are not confinement for more than six months, dismissal, dishonorable discharge, or a bad-conduct discharge. So a convening authority can disapprove or suspend a sentence of confinement for six months or less, reduction, restriction, forfeitures, a fine, hard labor without confinement, or a reprimand, without limit and for any reason (though, as discussed above, he has to explain why in writing under some uncertain circumstances).
  • Second, there are no restrictions on reducing any sentence when the trial counsel recommends such reduction “in recognition of the substantial assistance by the accused in the investigation or prosecution of another person who has committed an offense.” Those familiar with the federal sentencing guidelines will see similarities to §5k1.1.
  • Finally, there are no restrictions on reducing any sentence pursuant to a pretrial agreement, except for a sentence adjudged as part of a mandatory minimum. In that case, a pretrial agreement alone will only support reduction of a dishonorable discharge to a bad-conduct discharge. Disapproving or suspending a dismissal or a bad-conduct discharge for a mandatory minimum offense requires a trial counsel recommendation in addition to the pretrial agreement.

In the last part of this series I will discuss some practice tips gleaned from this section, such as “avoid guilty pleas for mandatory minimum offenses,” and “where the facts support it, ensure that the PTA requires the trial counsel to make a recommendation based on substantial assistance.”

The change to Article 60(c) won’t take effect for six months, but Congress also created a new Article 60(d) in Section 1706 of the NDAA. The new Article 60(d) is effective immediately, and it gives “a victim” the opportunity to submit matters to the convening authority before the convening authority takes action on the results of the court-martial. This provision looks easy to understand, but it is actually pretty complicated.

For instance, the definition of “a victim” in the new Article 60(d) is different from other definitions of “a victim” now part of the UCMJ (there are actually five different definitions of “a victim” in the NDAA; something I will discuss further in Part 6 of this series). For post-trial purposes, a victim includes anyone:

who has suffered a direct physical, emotional, or pecuniary loss as a result of a commission of an offense under this chapter (the Uniform Code of Military Justice) and on which the convening authority or other person authorized to take action under this section is taking action under this section.

(emphasis added). This is not to be confused with “a victim” as defined by the new Article 6b (discussed in part 2 of this series):

In this section, the term victim of an offense under this chapter means a person who has suffered direct physical, emotional, or pecuniary harm as a result of the commission of an offense under this chapter (the Uniform Code of Military Justice).

(emphasis added). Of course, “harm” and “loss” mean different things, and a post-trial victim is clearly a narrower class of persons than a pre-trial victim (as actual “loss” is a greater injury than mere “harm”). Also, emotional “loss” seems to be a novel concept.

A source of additional confusion is that this new provision (giving victims the right to submit matters) became effective at enactment on December 26, 2013, so any case already in the post-trial process will require delay to address this new rule. But since the definition of a victim for post-trial purposes isn’t limited to persons named in the specifications (that’s the definition of a victim under the future Article 32), some cases may require actual investigation to identify the victims. The new Article 60(d) doesn’t explicitly require an investigation to discover victims, but it does state that “the victim shall be provided an opportunity to submit matters” (emphasis added) and it sets a 10-day time limit based on service of the record of trial and the staff judge advocate’s recommendation upon the victim.

The obvious problem is that if the victim is known to exist but can’t be reached, that 10-day countdown can’t begin. For example, consider a case involving possession of child pornography. That’s an offense under Article 134 of the UCMJ, often involving known victims who have suffered significant pecuniary losses. Such a case can easily involve dozens of such victims. But these people aren’t necessarily easy for prosecutors or SJAs to contact.

However, Congress now requires that each of those victims receive a copy of the record and the SJA’s recommendation, and that each “shall” be provided an opportunity to submit matters to the convening authority within ten days after receipt of these things.

Being a Staff Judge Advocate just got a lot harder.

2013 Changes to the UCMJ – Part 1: Overview

This is part one of a series of posts discussing the military justice reforms in the National Defense Authorization Act for Fiscal Year 2014, signed into law by the President on December 26, 2013. The full series is available at this link.

The National Defense Authorization Act for Fiscal Year 2014 is a big piece of legislation. Contained within the 1,106 page bill are 38 sections addressing a variety of military justice issues. I’ve excerpted all 38 of these sections into a document with a table of contents (Word version available here) (PDF version available here).

From these 38 military justice sections I’ve identified the most important 15. They are: The eight sections that make ten changes to the UCMJ (two sections each make two changes), and five other sections that will significantly impact court-martial prosecutions.

The ten changes to the Code are:

§ 531. Modification of eligibility for appointment as Judge on the United States Court of Appeals for the Armed Forces.
§ 1701. Extension of crime victims’ rights to victims of offenses under the Uniform Code of Military Justice.
§ 1702(a). Revision of Article 32 (Use of Preliminary Hearings).
§ 1702(b). Revision of Article 60(c) (Elimination of Unlimited Command Prerogative and Discretion).
§ 1703. Elimination of five-year statute of limitations on trial by court-martial for additional offenses involving sex-related crimes.
§ 1704. Defense counsel interview of victim of an alleged sex-related offense in presence of trial counsel, counsel for the victim, or a Sexual Assault Victim Advocate.
§ 1705(a). Discharge or dismissal for certain sex-related offenses.
§ 1705(b). Trial of such offenses by general courts-martial.
§ 1706. Participation by victim in clemency phase of courts-martial process.
§ 1707. Repeal of the offense of consensual sodomy under the Uniform Code of Military Justice.

Of these ten sections and subsections, four do not take effect until the future. These are:

  • The new Art. 32 (effective Dec. 27, 2014);
  • The new Art. 60(c) (effective Jun. 24, 2014);
  • The mandatory minimums for sex offenses (effective Jun. 24, 2014); and
  • The requirement for trial by general court-martial for the sex offenses with mandatory minimums (effective Jun. 24, 2014).

I’ve updated our Word document version of the UCMJ to include all of the new Code provisions (there are annotations for the provisions effective in the future). I’ve also significantly reformatted the document and added a linked table of contents.

The other five sections likely to have significant impact on court-martial prosecutions are:

§ 1708. Modification of Manual for Courts-Martial to eliminate factor relating to character and military service of the accused in rule on initial disposition of offenses.
§ 1716. Designation and availability of Special Victims’ Counsel for victims of sex-related offenses.
§ 1744. Review of decisions not to refer charges of certain sex-related offenses for trial by court-martial.
§ 1752. Sense of Congress on disposition of charges involving certain sexual misconduct offenses under the Uniform Code of Military Justice through courts-martial.
§ 1753. Sense of Congress on the discharge in lieu of court-martial of members of the Armed Forces who commit sex-related offenses.

Over the rest of this week I will discuss all 15 of these provisions in this series of posts, as follows:

  • Part 1: Overview (this post). CAAF eligibility change (§531).
  • Part 2: Preferral-stage changes. Victims rights (§1701), SVC statute (§1716), statute of limitations (§1703), mandatory minimums (§1705(a) and (b)), repeal of consensual sodomy (§1707), and initial disposition factors (§1708).
  • Part 3: Discovery. Changes to Art. 46 (§1704).
  • Part 4: Article 32. The new Art. 32 (§1702(a)), review of decisions not to refer sex-related offenses to trial (§1744), and sense of Congress provisions (§1752 and §1753).
  • Part 5: Post-trial matters. The new Art 60(c) (§1702(b)) and Article 60(d) ((§1706).
  • Part 6: Practice notes. Thoughts on how these new provisions will affect pretrial negotiations, trial practice, and post-trial actions.

Below is a discussion of the first change to the Code: The CAAF eligibility change.

This provision is particularly interesting for this blog, as it responds to a 2012 post that discussed , and a 2009 post entitled . Congress doesn’t repeal Article 142(b)(4) entirely, but it does make fundamental change. The old language read:

(4) For purposes of appointment of judges to the court, a person retired from the armed forces after 20 or more years of active service (whether or not such person is on the retired list) shall not be considered to be in civilian life.

The new language reads:

(4) A person may not be appointed as a judge of the court within seven years after retirement from active duty as a commissioned officer of a regular component of an armed force.

While there are no current CAAF vacancies, this expansion of eligibility creates a new pool of otherwise highly-qualified candidates for CAAF whose military experience is no longer a disqualifying factor. But the seven year cooling-off requirement gives us a reason to consider why a civilian CAAF is important.

During the early Congressional consideration of the UCMJ, the need for an independent CAAF (formerly called the Court of Military Appeals) was clearly understood. A 1949 report by the House Armed Services Committee included this discussion:

Article 67 contains the most revolutionary changes which have ever been incorporated in our military law. Under existing law all appellate review is conducted solely within the military departments. This has resulted in widespread criticism by the general public, who, with or without cause, look with suspicion upon all things military and particularly on matters involving military justice. Every Member of Congress, both present and past, is well aware of the validity of this statement. The original bill provided for the establishment of a judicial council to be composed of at least three members. In view of the fact that this is to be a judicial tribunal and to be the court of last resort for court-martial cases, except for the constitutional right of habeas corpus, we concluded that it should be designated by a more appropriate name .. . . a civilian court of military appeals, completely removed from all military influence or persuasion.

Report to accompany H.R. 4080 at 6-7 (April 28, 1949) (link). Article142(b)(1) still requires that “each judge of the court shall be appointed from civilian life…,” and this seven year cooling-off period ensures that this requirement isn’t undermined by too rapid a transition from a full active duty career to the civilian Court of Appeals for the Armed Forces.

Top Ten Military Justice Stories of 2013 – #1: Changes to the UCMJ

It began a year ago, in January 2013, when Representative Jackie Speier (D-CA) introduced the “Protect Our Military Trainees Act” that, according to her press release, was “in response to the widespread sexual abuse by Air Force training instructors at a San Antonio Base,” and would “protect trainees from assault and sexual advances by instructors.”

Never mind that sexual harassment in the military is prohibited by innumerable regulations, or that coerced sexual activity “through the use or abuse of military position, rank, or authority” has met the statutory definition of a sexual assault since October 2007, or even that this definition was expanded in 2012 to include “a[ny] communication or action that is of sufficient consequence to cause a reasonable fear . . . [of] being subjected to the wrongful action contemplated by the communication or action.” Congress was getting curious about sexual assault in the military, and it didn’t like what it saw.

Actually, it really began a year before the Congresswoman’s proposal, when we encountered the “uninformed, dishonest, or both” propaganda film “The Invisible War,” and the politicization of the military’s response to sexual assaults became . And these days, “you never want a serious crisis to go to waste.”

So there was Congress, geared up to address the military sexual assault crisis, when the Wilkerson case (our #5 story of this year) threw gasoline onto the bonfire. An explosion of legislative proposals soon followed, with Representative Speier and Senator McCaskill each introducing bills to limit a commander’s post-trial powers, and the Senate Armed Services Committee conducting hearings on March 13 and June 4.

The House Armed Services Committee was also concerned, with leaders writing a letter in March to the recently-appointed Secretary of Defense, Chuck Hagel, on the topic. A veteran of Vietnam and a two-term Republican U.S. Senator from Nebraska, Secretary Hagel replied in April with his own proposal to limit the Article 60 authority of commanders, including “eliminating the discretion for a convening authority to change the findings of a court-martial, except for certain minor offenses that would not ordinarily warrant trial by court-martial.”

Senator Hagel’s April proposal was prophetic, but before the prophecy would be fulfilled, the Naval Academy checked in. In June we first noted a sexual assault allegation involving three male members of the Academy’s football team, an intoxicated female midshipman, and an off-campus house party in 2012. The allegation led to an Article 32 investigation that more closely resembled a three-ring-circus than a quasi-judicial proceeding. Press reports say that the midshipman was grilled for over 30 hours by defense counsel, with absurd questions such as “how wide she opened her mouth during oral sex and whether she had apologized to another midshipman with whom she had intercourse ‘for being a ho.’” Soon after, both the House and the Senate put Article 32 in their sights with proposals to limit the scope of the investigation and to change it from a full-blown investigation to a mere preliminary hearing.

So, about that prophecy. On December 26, 2013, it came true.

That’s the day the President signed the National Defense Authorization Act for Fiscal Year 2014, enacting into law its 38 military justice provisions, including ten changes to the Uniform Code of Military Justice. Of these ten changes to the Code, nine appear in Title XVII of the legislation, under the caption “SEXUAL ASSAULT PREVENTION AND RESPONSE AND RELATED REFORMS.”

The new laws are simultaneously broad and cautious. For instance, Congress rewrote Article 32, eliminating the pretrial investigation that has been part of military law since it was added to Article 70 of the Articles of War in 1920, and replacing it with a lesser “preliminary hearing.” But that change won’t be effective until a year from now. Congress also eliminated the convening authority’s unfettered ability to modify the findings or sentence of a court-martial as a matter of “command prerogative,” limiting what General Dwight Eisenhower called “a terrific burden” in 1947 (about six years before he became the 34th President). General Eisenhower assured Congress in 1947 that such a change would lead to “resentment–and very deep resentment.” We’ll see what happens after that provision takes effect, six months from now.

Ultimately, of the ten different ways Congress changed the text of the UCMJ, five won’t have immediate impact. Of these five, one doesn’t take effect for a year (the new Art. 32), and three don’t take effect for six months (restriction of post-trial discretion, and the mandatory minimum provisions). The fifth (allowing appointment of an active duty retiree to CAAF) is effective immediately but won’t matter until the next vacancy at the court; hopefully to occur no earlier than the end of Chief Judge Baker’s term in September, 2015.

The five remaining changes take effect immediately. They are:

Creation of Article 6b, establishing 14 “Rights of a Victim of an Offense Under [the UCMJ].” These rights parallel the eight rights identified in the Crime Victims’ Rights Act (18 U.S.C. § 3771). The new Art. 6b is effective now, but the Secretary of Defense has a year to recommend pertinent changes to the Manual for Courts-Martial, and to implement his own governing regulations.

Elimination of the 5-year statute of limitations for the offenses of sexual assault (Art. 120(b)) and sexual assault of a child (Art. 120b(b)). This provision is effective now, but only for offenses committed on or after December 26, 2013.

Modification of the requirement of Article 46 for “equal opportunity to obtain witnesses and other evidence” to explicitly require that “defense counsel shall make any request to interview the victim through trial counsel.” The new rule also provides that if an alleged victim so requests, then “any interview of the victim by defense counsel shall take place only in the presence of trial counsel, a counsel for the victim, or a Sexual Assault Victim Advocate.” This rule is effective now.

Creation of a new subparagraph (d) to Article 60, providing the victim the “opportunity to submit matters for consideration by the convening authority.” Congress also prohibited consideration of any matters “that relate to the character of a victim unless such matters were presented as evidence at trial and not excluded at trial.” These rules became effective at enactment on December 26, 2013, and will likely cause significant post-trial delay in cases tried before that date but not yet acted upon by the convening authority.

The long-overdue repeal of the prohibition against consensual sodomy in Article 125. Forcible sodomy is still prohibited, and the offense of “bestiality” is added (perhaps in recognition of the weirdest military justice story of 2011).

Of everything that happened over the past year, these new laws enacted in the last days of December are our #1 military justice story of 2013. As the sun rose on 2014 this morning, and 2013 began its fade into history, we’re taking stock of these new provisions and watching to see of they will extinguish the flames of crisis sparked two years ago. Stay tuned.

Top Ten Military Justice Stories of 2013 – #5: The Wilkerson Court-Martial and Side Effects

2013 was a year that was dominated by the issue of sexual assault and the military justice system’s handling of it.  Last year’s top story is where much of this focus began.  The horrible Invisible War “documentary” and its producers portrayed the military justice system as unable to handle sexual assault cases and advocated taking the decision in sexual assault cases out of the chain of command.  And then came the Wilkerson decision.

On Nov. 5, 2012, LTC James Wilkerson was sentenced to a dismissal and one year confinement for the sexual assault of a house guest while stationed with his wife at Aviano AFB.  On February 27, 2013, the convening authority in the case, Lieutenant General Craig Franklin exercised his authority under Art. 60, UCMJ and set aside the members’ findings and sentence in the case.

On the heels of The Invisible War and its supporters decrying the chain of command as a good ol’ boy network, General Franklin’s action sent them into a frenzy.  Senators and congressmen immediately weighed in on the general’s action calling it “simply unacceptable and rais[ing] serious concerns about the military justice system as a whole.”  Senators Boxer and Shaheen called on SecDef Hagel to, amusingly, “take immediate steps to restrict Convening Authorities from unilaterally dismissing military court decisions.” It was an amusing request because, of course, Congress gave CAs the power to set aside findings and sentences in Article 60(c), so it was really up to the Senators to change the law.

Meanwhile, the CA explained his actions in a thorough memo describing why he took his action, which didn’t help his cause or LTC Wilkerson’s at all.  Even though he was in essence acquitted, LTC Wilkerson’s name was removed from the promotion list.  And he did himself no favors when a month later it was discovered he had an extra-martial affair, prior to the alleged rape, and fathered a child with his mistress.  Reports about the investigation say that it  also revealed that LTC Wilkerson may have used US government property to further the affair by flying “home” to see the mistress.  As Stars and Stripes reports, here, all this led to administrative proceedings against LTC Wilkerson, who chose to retire effective 1 Jan 2014.  He’ll retire in the last grade which the Air Force determined that he satisfactorily served, as a Major.  The Air Force FOIA page for the entire case and subsequent investigation is here, the investigation that led to LTC Wilkerson’s retirement as a Major is here.

General Franklin and now Major Wilkerson weren’t the only ones affected by the fallout from General Franklin’s Art. 60 decision.  One of America’s most respected and decorated astronauts, Lieutenant General Susan Helms, raised the ire of Senators when she took similar action in a sexual assault case before her.  As a result of that ire, her then pending nomination to be Vice Commander of Air Force Space Command was placed on permanent hold.  Helms sadly withdrew her nomination and retired this year after Senators refused to put her nomination back on track.

General Franklin’s action was one of the more memorable actions of 2013 and set the stage for the reforms that Congress and the President recently enacted to strip CA’s of the power to overturn courts-martial findings, coverage here and here.  Again, making this a no brainer in our Top 10.

Military Justice Reforms in the FY14 Compromise NDAA

As discussed by No Man on Tuesday, the House and Senate Armed Services Committees (HASC & SASC) have reached a compromise National Defense Authorization Act (NDAA) for FY14. The compromise bill contains significant modifications to the military justice system. Considering the composition of Congress, I consider passage of this compromise legislation very likely.

The complete text of the 1105 page compromise bill is available here, and a 532 page joint explanatory statement is available here. From these I’ve pulled out just the military justice provisions into a 97 page document containing the legislative text, and a 24 page document containing the explanatory statements.

The compromise legislation contains 38 sections addressing military justice issues. The highlights include:

Section 531, removing the prohibition on officers who retire after 20 years of active service being appointed as judges at CAAF, and permitting their appointment after a 7-year cooling off period.

Section 1702(a), completely rewriting Article 32, changing the nature of the hearing from an investigation to a “preliminary hearing,” explicitly granting a victim the right to refuse to testify, and mandating that the hearing be recorded by “a suitable recording device.” These provisions will take effect one year after enactment.

Section 1702(b), significantly rewriting Article 60(c) to eliminate references to “command prerogative” and “sole discretion of the convening authority,” prohibiting a convening authority from disapproving findings of guilty to all but minor offenses, and significantly restricting a convening authority’s ability to grant sentence relief absent a pretrial agreement or recommendation from the trial counsel. These provisions will take effect 180 days after enactment.

Section 1703, eliminating the 5-year statute of limitations on the offenses of sexual assault (Art. 120(b)) and sexual assault of a child’ (Art. 120b(b)), effective on the date of enactment.

Section 1704, requiring, if requested by the alleged victim, the presence of “trial counsel, a counsel for the victim, or a Sexual Assault Victim Advocate” whenever “defense counsel” interviews an alleged victim of sexual assault. The section also states “defense counsel shall make any request to interview the victim through trial counsel.” There is no stated effective date for this provision (so, at enactment).

Section 1705, establishing a mandatory minimum sentence of dismissal or dishonorable discharge for the offenses of rape (120(a)) or sexual assault (120(b)), rape of a child (120b(a)) or sexual assault of a child (120b(b)), forcible sodomy (125), or attempts to commit these offenses. The section also limits jurisdiction over these offenses to general courts-martial. These provisions will take effect 180 days after enactment, and apply only to offenses committed on or after that date.

Section 1706, modifying Article 60 to allow the victim to submit matters for the convening authority’s consideration before action on the results of trial.

Section 1707, repealing the offense of consensual sodomy.

Section 1708, requiring deletion of the non-binding commentary in the discussion to R.C.M. 306 that suggests that a commander should consider an accused’s military service and character when making a decision on initial disposition of charges.

Section 1714, expanding the protections of The Military Whistleblower Protection Act (10 U.S.C. § 1034).

Section 1716, adding a new section to 10 U.S.C. § 1044 (the legal assistance statute) addressing special victims counsel.

Section 1744, requiring creation of Service-level policies for the “review of decisions not to refer charges for trial by court-martial in cases where a sex-related offense has been alleged by a victim of the alleged offense.” This section also requires forwarding of cases in two scenarios: Forwarding to the service secretary for review any case where a staff judge advocate acting under Art. 34 recommends referral of sexual assault offenses and the convening authority refers no charges to trial; and forwarding to the next superior GCMCA for review when the SJA recommends against referral and no charges are referred.

Sections 1751-1753, stating the sense of Congress regarding command climate, disposition of certain sexual offenses at forums lower than courts-martial, or by administrative separation in lieu of trial by court-martial.

SECDEF proposes Article 60 amendments

Here’s a link to Secretary of Defense Hagel’s statement issued today announcing his proposal to amend Article 60.  He recommends “eliminating the discretion for a convening authority to change the findings of a court-martial, except for certain minor offenses that would not ordinarily warrant trial by court-martial.”  And his proposed change would require “the convening authority to explain in writing any changes made to court-martial sentences, as well as any changes to findings involving minor offenses.”

That strikes me as the most modest revision to Article 60 possible in the current political environment.

Secretary Hagel’s statement repeats the now-familiar trope that “[w]hile convening authorities would no longer have the ability to dismiss charges for serious offenses like sexual assault, defendants would continue to have access to a robust system of appeal rights.”  As we know, that’s not true for some servicemembers convicted by court-martial, who — baased on their sentence – may suffer a lifetime of sex offender registration, forfeiture of the right to own firearms, stigmatization by a federal criminal conviction, or other onerous collateral consequences without ever having a right to appeal their conviction to a higher military court.

Sen. McCaskill’s bill to amend Article 60(c) (plus some thoughts on the current countretemps over CAs’ power to alter findings)

The text of Senator McCaskill’s bill to amend Article 60(c) is now available here.  Something like this is probably the least disruptive change that’s likely to result from the aftermath of Lieutenant General Franklin’s exercise of his discretion to set aside the findings of guilty in Lieutenant Colonel Wilkerson’s case.  It would take away the CA’s power to set aside a finding of guilty or knock it down to an LIO while preserving the CA’s power to change the sentence if accompanied by a written justification.

I don’t expect any standalone bill like Senator McCaskill’s or Representative Speier’s to pass.  Rather, I expect any change to Article 60(c) to be adopted as part of the National Defense Authorization Act for Fiscal Year 2014.  But as Congress considers changes to the UCMJ arising from the current focus on sexual assault cases, it should keep in mind the sage advice offered by Major General Vaughn Ary, the Staff Judge Advocate to the Commandant of the Marine Corps.

During his testimony to the U.S .Commission on Civil Rights in January, Major General Ary observed that some part of the military justice system that might, at first blush, seem overly protective of an accused is often there to compensate for some deficiency in another area.  We shouldn’t change the one area without being mindful of how such a change might ripple through the system.

One of the frustrating arguments at the SASC military personnel subcommittee hearing about the issue was that the CA’s power to set aside the findings of guilty is no longer necessary because the military justice system how has a “robust” appellate review.  Of course, that’s not really true.  While Chairman Levin spoke of the right to appeal a conviction to a higher military court, some servicemembers appear to be the only criminal defendants in the United States who can be convicted of a criminal offense without any right to appeal to a higher court.  A servicemember can be convicted at a contested court-martial resulting in lifelong sex offense registration, residence restrictions, prohibition against owning firearms or ammunitions, disenfranchisement, and other collateral consequences without any right to appeal to a higher military court if the servicemember doesn’t happen to also receive a punitive discharge and/or a year or more of confinement.  Servicemembers also appear to be the only criminal defendants in the United States who don’t have a guaranteed right to Supreme Court review of their case.  During the hearing, Senator Graham spoke imprecisely by saying that a military accused did have such a right.  While Supreme Court review in a military justice case is possible, the vast majority of servicemembers convicted at court-martial, even in contested cases, will never have the right to seek Supreme Court review of their conviction.

Let’s consider Lt Col Wilkerson’s conviction.  A number of SASC members referred to his conviction by a jury.  Of course, Lt Col Wilkerson didn’t have a jury — he had a court-martial panel.  Noting that distinction isn’t some tyranny of labels.  There is no such thing as a five-member criminal jury.  In fact, the Supreme Court has held that it’s unconstitutional for a criminal jury to have fewer than six members.  Ballew v. Georgia, 435 U.S. 223 (1978).  The Supreme Court has also held that it’s unconstitutional to have a six-member jury convict a criminal defendant upon a non-unanimous vote.  Burch v. Louisiana, 441 U.S. 130 (1979).  Yet Lt Col Wilkerson was convicted by a five-member panel with only four votes being necessary to convict.  Had he been tried by a “jury,” we have no idea whether he would have been convicted.  So if we’re going to reform Article 60(c), are we also going to give a servicemember a right to be tried by a six-member court-martial panel that must be unanimous in its result?  (SCOTUS, of course, has at 10-2 or 9-3 vote to convict in a criminal case is constitutionally permissible.  Johnson v. Louisiana, 406 U.S. 356 (1972); Apodaca v. Oregon, 406 U.S. 404 (1972)).

The CA’s power to set aside findings has traditionally been offered as part of the justification for not giving servicemembers other appellate rights, such as the a guaranteed right to appeal upon a criminal conviction.  If Senator McCaskill’s bill is adopted – either as standalone legislation or as part of the NDAA — will Congress also extend the right to judicial appellate review to all servicemembers convicted by courts-martial?  Are the members of SASC and HASC who are considering amending Article 60(c) even aware that some servicemembers have no right to judicial appellate review, much less a right to a “robust” appeal?

Some Article 60(c) statistics

During the afternoon panel of the SASC military personnel subcommittee dealing with sexual assault in the military, Senator Lindsey Graham (R-S.C.) reviewed the number of instances in which CAs have set aside findings of guilty.  (It starts at 41:33 of this link.)   In the United States Marine Corps from 2010-2012, there were 1,768 SPCM and GCM cases resulting in convictions and in only 7 cases (0.4%) did the CA disapprove the findings of guilty, none in a sexual assault case.  In the Air Force, over the last 5 years, convening authorities set aside findings in 40 cases out of 3,713 cases (1.1%) – 5 in sexual assault cases.  The Navy doesn’t have a system for tracking convening authorities’ Article 60 dispositions, but a survey found only 1 instance of a CA setting aside findings; that was in a sexual assault case.  In the Army, since 2008, out of 4,603 cases with convictions, the convening authority set aside the findings in 68 (1.48%), none of which were sexual assault cases.  In the Coast Guard, out of more than 200 cases convened, the convening authority set aside a finding of guilty to at least 1 specification in 3 cases.

HASC letter on reform to CAs’ clemency powers

As Phil “My Liege” Cave noted, HASC’s blog includes this post with a copy of a letter that HASC’s leadership — both Republicans and Democrats — sent to Secretary Hagel about CAs’ clemency power.

The letter indicates that HASC’s leadership is concerned with the statutory authority of CAs to overturn a guilty verdict.  The letter also contemplates that the 2014 National Defense Authorization Act will include an amendment to Article 60(c).  The letter asks SecDef to provide HASC with certain information, including:  “An analysis of how other military justice systems address the role of the convening authority in courts-martial.” Given the ongoing debate about the appropriateness of American courts relying on decisions from other countries’ courts, this provides a useful reminder that the legislative branch is certainly free to review best practices from other countries when considering the optimal approach for the United States.

31(b)log on threat to Article 60(c)

Here’s an interesting post on 31(b)log about Senator McCaskill’s reaction to Lieutenant General Franklin setting aside the conviction in Lieutenant Colonel Wilkerson’s case. Be sure to read LtCol Winklosky’s insightful points in his comment to the post.

Senators Boxer and Shaheen call on SECDEF to address CA’s disapproval of LTC Wilkerson’s conviction

As a number of our alert readers have noted, Senators Boxer (D-Cal.) and Shaheen (D-N.H.) sent this letter to Secretary of Defense Hagel calling for him to take steps in response to Lieutenant General Franklin’s disapproval of the conviction of Lieutenant Colonel Wilkerson.

They ask Secretary Hagel whether he can reverse the disapproval.  This Air Force Times article quotes Yale Law Professor Gene Fidell providing this succinct answer:  “Clemency ‘is a done deal. This is final.’”  They also urge SECDEF, “in the strongest possible terms, to take immediate steps to restrict Convening Authorities from unilaterally dismissing military court decisions.” But, of course, Congress gave CAs that power in Article 60(c).  They also ask Secretary Hagel to “work with us as we consider additional legislative options.”  We’ll be on the alert for bills doing away with convening authority’s Article 60(c) authority to disapprove the findings of a court-martial.

Argument Preview: United States v. Gaskins, No. 13-0016/AR

CAAF will hear oral argument in United States v. Gaskins, No. 13-0016/AR, on Tuesday, February 19, 2013. The court granted review of two issues:

I. Whether the Government’s loss of a sentencing exhibit rendered the record of trial incomplete under Article 54, UCMJ, resulting in a jurisdictional limitation on the sentence to one no greater than that which could be approved for a non-verbatim record.

II. Whether Appellant waived the failure to plead the terminal element of the Article 134 offenses by his failure to raise that issue at the sentence rehearing, and if not, whether those charges should be dismissed because the Government failed to plead the terminal element.

Article 54, UCMJ, requires preparation of “a complete record of the proceedings and testimony,” and Rule for Courts-Martial 1103 provides that when a verbatim transcript cannot be prepared, due to loss of the recording, notes, or other reason, the convening authority may approve no sentence greater than confinement for six months, forfeiture of two-thirds pay per month for six months, and reduction to E-1 (a “non-verbatim sentence”); or the convening authority may direct a rehearing (i.e., redo the entire trial) as to any offense of which the accused was found guilty.

Army Staff Sergeant Gaskins was convicted, in February, 2008, by a general court-martial composed of members with enlisted representation, of carnal knowledge, indecent acts with a child, and indecent assault, in violation of Articles 120 and 134, UCMJ, and sentenced to confinement for twelve years, total forfeitures, reduction to E-1, and a dishonorable discharge. But Defense Exhibit A – the Appellant’s “good soldier book” – went missing and wasn’t included in the record of trial. That omission began an appellate odyssey that continues next week at CAAF, a half-decade later.

The “good soldier book” was a “completely filled 3-inch binder, consisting of Appellant’s Marine Corps service record book, numerous awards from his time in both the Marines and the Army, and photographs and other documentary evidence sufficient to merit consideration by the panel in mitigation.” Appellant’s Br. at 10. It was presented to the members during sentencing and then vanished, and there were (apparently) no copies, tables of contents, summaries of the contents, or other means to adequately recreate the Exhibit.

But despite the language of RCM 1103, the Convening Authority approved the adjudged sentence. On direct review, a three-judge panel of the Army CCA heard oral argument, but then the entire court issued a published opinion ordering a DuBay hearing “to determine whether substantial matters were omitted from the record and, if so, whether it is incomplete under Article 54, UCMJ.” United States v. Gaskins, 69 M.J. 569, 570 (A.Ct.Crim.App. 2010) (en banc) (Gaskins I). Curiously, all three judges who participated in the oral argument dissented from the court’s opinion in the case. One of them, Judge Ham the Great, authored a whopping 23-page dissent, that made us wonder in this post “if the majority judges want their hail and farewell (or whatever the Army calls it) gifts back [from Judge Ham, who soon thereafter departed the ACCA]?”

But then, as discussed in this post, in response to a defense petition for extraordinary relief, “CAAF put a stop to the appellate rescue mission, precluding the DuBay hearing from proceeding.” The case returned to the ACCA, which issued a second en banc opinion (Gaskins II) (unpublished) setting-aside the sentence and authorizing a sentence rehearing. Again there were dissents, and again the Appellant sought extraordinary relief from CAAF, but this time it was denied and the sentence rehearing was conducted in October 2011, resulting in an approved sentence of confinement for nine years, total forfeitures, reduction to E-1, and a dishonorable discharge. Subsequently, in July 2012, the ACCA summarily affirmed the findings and sentence (Gaskins III). About ninety days later, CAAF granted review of the two issues shown above.

The case arrives at CAAF with a big question, a little question, and an unasked question. The Big Question (Issue I) is if the options of a non-verbatim sentence or a complete rehearing are the exclusive remedies for an incomplete record. The Little Question (Issue II) is the familiar Fosler issue, with an appellate wrinkle. And the Unasked Question is if the Appellant’s defense counsel can be ordered to affirm under oath that the missing exhibit didn’t end up in their case files…

The Appellant’s brief presents the missing exhibit issue in four parts: First, the loss of the exhibit is a “substantial omission” that renders the record incomplete, creating a presumption of prejudice that the Government must rebut (recognized in caselaw; see United States v. McCullah, 11 M.J. 234, 237 (C.M.A. 1981)). App. Br. at 9. Second, the Government has failed to meet its burden to rebut that presumption of prejudice caused by the incomplete record. App. Br. at 11. Third, the ACCA erred when it remanded the case for a sentence rehearing, because it lacks the authority to do so. App. Br. at 17-18. Finally, even if the ACCA had the authority to remand the case for a sentence rehearing, the record is still incomplete, there is still a presumption of prejudice, and there is still a need for relief. App. Br. at 21-22.

The Government’s response begins by conceding the Appellant’s first two points: that the missing exhibit is a substantial omission, and that the Government failed to rebut the presumption of prejudice. Gov’t Br. at 8. “The sole issue left in this case is whether the sentence rehearing, instead of a non-verbatim sentence, was an appropriate remedy for the incomplete record.” Id. On this point, the Government argues that “RCM 1103(f)(2) expressly authorizes a [sentence] rehearing,” and suggests possible factors to consider when fashioning a remedy for an incomplete record. Gov’t Br. at 9. The Government’s brief emphasizes this point with the following section:

While the words “sentence rehearing” do not specifically appear in RCM 1103(f)(2), the plain language of the rule clearly encompasses them. First, the language of the rule – “rehearing as to any offense” – is broad enough to encompass both findings and sentence rehearings. This interpretation is also supported by Article 60(e)(3), UCMJ, which authorizes a convening authority to order a rehearing, and Article 66(d), UCMJ, authorizing a Service Court to order a rehearing when the findings or sentence is set aside.

Second, independent sentence rehearings are consistent with this Court’s case law that reviewing authorities may determine whether the lack of completeness affects findings, sentence only, or both, and then shape relief accordingly.

Appellant’s argument that sentence rehearings are per se impermissible would lead to absurd results. Hypothetically, under appellant’s interpretation, convicted murderers would automatically receive a non-verbatim sentence if the government lost a sentencing exhibit. Congress and the President could not have intended that result when they drafted Article 54 and RCM 1103(f).

Gov’t Br. at 13-14 (notes omitted) (emphasis added). The emphasis is added to highlight a classic false dilemma. If a sentence rehearing alone is not permitted, a convicted murderer need not “automatically receive a non-verbatim sentence.” The murderer could instead receive a “[complete] rehearing as to any offense,” just as RCM 1103 provides. Moreover, it’s important to remember (as I noted in this post in May of last year) that:

[M]ilitary law recognizes three types of re-trials: a rehearing, a new trial, and an other trial (as in “another trial”). A rehearing (on findings, sentence, or both) may be ordered when findings or sentence are set-aside, and is a continuation of the former proceedings; a new trial may be ordered when new evidence or a fraud on the court is discovered; an other trial can occur after the original proceedings are declared invalid due to lack of jurisdiction or failure to state an offense.

It is perhaps inconvenient for the Government to re-try the merits of a case where the omission in the record is limited to a sentencing matter, but the Government’s brief doesn’t really explain why the RCM doesn’t require exactly that (and CAAF is pretty reluctant to read convenience into the MCM these days).

The Government’s brief then embarks on a discussion of equitable factors that could be considered when fashioning a remedy that isn’t either a complete rehearing or a non-verbatim sentence. The suggested factors are the way the exhibit was lost (“what this Court should not ignore, however, is that one reason DE A could not be reconstructed is the defense could not articulate with any specificity, nor provide substitutes for, the contents of their own exhibit.” Gov’t Br. at 15.), the ability to present the lost evidence in other forms (“Appellant had the opportunity to present a new, meritorious sentencing case at his rehearing. That is his right; it is not a burden.” Gov’t Br. at 17.), the ability of the military judge to fashion meaningful relief at a sentence rehearing (“The military judge correctly determined a remedy was appropriate for the government’s inability to produce DE A, and she severely limited the government’s sentencing case as a result.” Gov’t Br. at 18.), and if there would be a windfall in approving only a non-verbatim sentence (“Appellant was convicted of extremely serious offenses and was appropriately sentenced to a severe term of confinement.” Gov’t Br. at 22).

The Government’s brief presents a practical way to address an incomplete record, assuming the options of a non-verbatim sentence or a complete rehearing are not the exclusive remedies for an incomplete record (i.e., the Big Question). Unfortunately, despite being seductively practical (yeah, I’m being seduced by the Government here; don’t judge), the Government can’t avoid getting argumentative:

The government’s actions should be compared with that of appellant, and the apparent lack of importance of the evidence at issue. For example, appellant did not move to compel production of any documents he had trouble obtaining. Further, appellant was curiously unable to provide the names of all the colleges he attended [record of which were in the exhibit]. Either appellant was intentionally being obstructionist, or the colleges were not important enough for him to remember their names.

Gov’t Br. at 20 (notes omitted). At the time of the sentence rehearing, the Appellant had spent about four years in confinement (including pretrial confinement). Maybe his lack of participation in the rehearing was caused by sheer hopelessness. Maybe he saw the whole thing as a sham. Maybe he just felt like exercising his right to remain silent that day. Or maybe he was “intentionally being obstructionist”; a perfectly-rational reaction in the face of a twelve-year sentence that his lawyer (probably) kept telling him should be a six-month sentence. In a reply brief, the Appellant responds by claiming that the Government’s proposal would place the defense counsel into a “very real ethical dilemma,” requiring that he “assist the [G]overnment” in reconstructing the exhibit. Reply Br. at 3.

The other issue in this case is whether the Appellant’s convictions for indecent acts and indecent assault, both in violation of Article 134, should stand despite the Government failing to allege a terminal element. The Army CCA found that the Appellant waived the issue when he failed to raise it during the sentence rehearing, but the Government concedes that the CCA erred in that conclusion. Gov’t Br. at 28. This leaves just the Humphries plain-error analysis (the Little Question). But the Army’s Government Appellate Division appears to have embraced a new argument for this issue: the failure to object actually means that the Appellant was on notice of the terminal element.

There is no direct evidence in the trial record that indicates appellant was on notice of the terminal element. The circumstantial evidence of notice, however, is overwhelming. Appellant’s delay in raising the Fosler issue is strong evidence that he was on notice of the terminal element. As the 9th Circuit noted in Leos-Maldonado [302 F.3d 1061, 1065 (9th Cir. 2002)]:

‘[A] late challenge suggests a purely tactical motivation and is needlessly wasteful because pleading defects can usually be readily cured through a superseding indictment before trial. Additionally, the fact of the delay tends to negate the possibility of prejudice in the preparation of the defense, because one can expect that the challenge would have come earlier were there any real confusion about the elements of the crime charged.’

This sounds remarkably familiar; almost like CAAF’s opinion in Humphries created some type of hazard, by (as I wrote in this post) “giv[ing] trial defense counsel faced with a defective specification a reason to do nothing, waiting to complain only if the accused is convicted.” I wonder if we’ll hear the sounds of Chief Judge Baker banging his head against the bench during the oral argument.

Finally, there’s the Unasked Question. Is the missing exhibit in the possession of the defense? The Government’s brief comes as close to that question as I think it dares: “responsibility for a lost exhibit does not always lie entirely with the Government. All parties, including the military judge, trial counsel, defense counsel, and court reporter, ‘bear some responsibility for producing an accurate and complete record of proceedings…’” Gov’t Br. at 15. I can hear Judge Stucky’s voice in my mind, asking the Appellate Defense Counsel during oral argument, “you don’t have the binder, do you?”

I just can’t figure out if the voice is asking the question rhetorically. . .

Case Links:
Note: Multiple blog posts omitted; see our case page for the full history.
ACCA opinion (Gaskins I)
Blog post: Judge Ham Has A Few Parting Gifts for Her Friends
ACCA opinion (Gaskins II)
Blog post: Some thoughts about the Gaskins writ
ACCA opinion (Gaskins III)
Blog post: It’s b-a-a-a-ck; CAAF grants review of Gaskins
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview

 

Argument Recap: United States v. Humphries, No. 10-5004/AF

CAAF heard oral argument in United States v. Humphries, No. 10-5004/AF, on February 13, 2012. Humphries is a unique case with some history. Senior Airman (E-4) Humphries was convicted in 2009 by a panel with enlisted members of sodomy and adultery in violation of Articles 125 and 134. He was sentenced to reduction to the lowest enlisted grade and a bad-conduct discharge. The convening authority approved the sentence, but in 2010 the AFCAA, after finding no prejudicial error,  determined that Humphries “deserves punishment but given the consensual nature of his crimes, an unsuspended punitive discharge is inappropriately severe.” The AFCCA then set-aside the convening authority’s action and returned the case for reconsideration by the CA with instructions that he approve a sentence no greater than a suspended bad-conduct discharge and a reduction to E-1. Additionally, in its action, the CCA (despite determining that the findings are correct in law and fact) expressly declined to affirm the findings.

The government, unsurprisingly, requested en banc reconsideration, which the CCA denied. The government then sought and obtained certification to CAAF on the following question:

Whether the Air Force Court of Criminal Appeals erred in finding appellee’s sentence inappropriately severe under the unique circumstances of this case and erred in an attempt at exercising appellate clemency by remanding the case to the convening authority with instructions that the convening authority may approve an adjudged sentence no greater than a suspended bad conduct discharge and a reduction to the grade of E-1.

CAAF heard oral argument in January 2011, but in February 2011 it returned the case to the AFCCA because the lower court “acted on the sentence without acting on the findings. This has resulted in having a case before us for review that does not have a complete decision on all findings and the sentence by the Court of Criminal Appeals as required by Article 67(c).”

In August 2011 the AFCCA doubled-down, issuing a decision affirming the findings as correct in law and fact and again setting-aside the CA’s action with the same appropriateness-based limit on the sentence on remand. The Judge Advocate General of the Air Force then re-certified the above-specified issue.

Perhaps not believing this case to be complicated enough at this point, the defense (led by our own Colonel Sullivan) petitioned for a cross-appeal, and CAAF granted review and ordered briefs on a second issue:

Whether a contested adultery specification that fails to expressly allege an Article 134 terminal element but that was not challenged at trial states an offense.

This grant came in mid-December, at about the same time as CAAF granted the second round of Fosler-trailers (for which a witty characterization is still pending).

So, going into the oral argument last week, the government was the appellant on the certified issue, and was the cross-appellee on the granted issue. To keep things simpler, the government will be the “government,” and Humphries the “appellee” from here on.

The facts of the case are sadly familiar for an adultery prosecution. The appellee, who was married, was the neighbor of the wife of a deployed airman who was having difficulty coping with her husband’s deployment. In February 2005 the appellee went to his neighbor’s house where, after she refused multiple advances, he eventually engaged in sexual intercourse and oral and anal sodomy with her while her children were in the next room. The appellee was subsequently charged with two specifications of rape, one specification of forcible sodomy, two specifications of adultery, and two specifications of wrongfully communicating a threat. He was convicted of one specification of adultery, and the lesser-included offense of consensual sodomy, and acquitted of the other offenses.

In the briefs, the government and the appellee tackle the specified issue as a question of the proper exercise and deference due to the broad powers granted to a Court of Criminal Appeals under Article 66, UCMJ. The appellee’s position is that it is inappropriate for CAAF to intrude upon the sentence-appropriateness powers of a CCA, while the government frames the CCA’s action as an abuse of discretion given the facts of the case.

On the granted issue, the government distinguishes this case from Fosler based on the failure of the appellee to object, and further (in an outstanding analysis of the law behind the issue of prejudice in these post-Fosler cases) argues that there is no prejudice to a substantial right of the appellee on which to base relief. The appellee argues that the specification must be reviewed de novo, that it is thus necessarily defective, and that the prejudice is found in the fact that the appellee was convicted of a legally deficient specification (i.e., an offense of which he was not charged). This issue was not discussed during the oral argument, but will certainly get its time among the many other post-Fosler grants.

Oral argument began with the Government’s assertion (noted immediately by Judge Stucky as an avenue for a simple resolution of the case) that the CCA engaged in “unauthorized appellate clemency in violation of Article 60.” This led to extensive discussion, led by Chief Judge Baker, of what standard of review applies to the court’s determination (de novo for a violation of Article 60, abuse of discretion for determination of sentence appropriateness; though the government sees the issues as intertwined). Judge Ryan then joined in this line of questioning, stating that it is a “very fine line” between asking CAAF to rightfully ensure that the lower courts apply appropriate principles of law, and asking it to wrongfully substitute its own determination of whether the sentence is appropriate or not.

The government’s counsel argued that the CCA chose to explain their deliberative process in determining the appropriateness of the sentence, and that “the only fact that pushed them over the edge to an inappropriately severe sentence was the consensual nature of his consensual crimes. They argued, in their mind the elements of the crime somehow mitigate the crime itself, and that just doesn’t make sense.” Argument audio at 6:50.

Further discussion ensued, leading the government to state that had the CCA not explained its reasoning, which it wasn’t required to do, then there would be no basis for the government to challenge its sentence appropriateness determination. This led Chief Judge Baker to ask (at 9:40), “do you want to win? I mean do you really want to win? If you win on that, isn’t the message just determine sentence appropriateness with silent opinions? Isn’t the system better served by a more open process?” The government counsel couldn’t argue with this, but he also restated that there is no legal requirement for the CCA to explain its reasoning.

The government’s argument ended with a long discussion of, essentially, Chief Judge Everett’s concurring opinion in United States v. Clark, 16 M.J. 239 (C.M.A. 1983),  in which he wrote that while an appellate court may not suspend a discharge, it could remand the case to the convening authority with instructions regarding the maximum appropriate sentence – exactly the action taken by the AFCCA in this case. The government, in its brief and at argument, argued for CAAF to finally reject this proposition.

The appellee’s argument began with bifurcation of the two “decisional” issues: (1) should CAAF disturb the CCA’s determination that the sentence was inappropriately severe, and (2) may a CCA remand a case to a convening authority with guidance on the sentence to be approved.

Perhaps picking up where the government’s argument left off, Chief Judge Baker asked if a CCA’s determination of appropriateness is subject to review by CAAF. The appellee’s counsel argued, after disclaiming that none of this is necessary to the determination of this case, that CAAF may only act on a sentence where a CCA rejects a sentence appropriateness claim (i.e., only where it approves the sentence); if the CCA disapproves a portion of the sentence, CAAF cannot act on the sentence and the CCA’s action is “remedy-less because it’s insulated from review.”  This limitation is in Article 67(c), which provides that: “In any case reviewed by it, the Court of Appeals for the Armed Forces may act only with respect to the … sentence as … affirmed or set aside as incorrect in law by the Court of Criminal Appeals.” So, as the argument went, a CCA could consider astrology charts in making a sentence appropriateness determination and CAAF could find this to be error, but could not reinstate a sentence set-aside as inappropriately severe (because it was not set-aside as incorrect in law).

Senior Judge Effron then returned to the question of what the CCA can do when it returns a case to a convening authority under circumstances such as these. The appellant’s counsel argued that there are, essentially, no limits to what could happen in a “dialogue between the CCA and the convening authority” regarding the maximum appropriate sentence. But Judge Stucky called this “cold comfort for the CA.” Argument audio at 35:40. The AFCCA did not simply eliminate the disproportionate aspects of the sentence, it seems to try to force the CA to do what it wants him to do. But the appellee’s counsel argued that the CCA’s action here (remanding with instructions) results in an expansion of the CA’s authority rather than a limitation. In a case like this, the CCA’s options are to outright disapprove the punitive discharge, or to return it for (at least) suspension, and possibly some other disposition, such as commutation into a different form of punishment. The options to suspend or commute are opportunities, and are more deferential to the CA than outright disapproval.

Finally, the appellant’s counsel argued that if the court does not approve the AFCCA’s action returning the case to the CA, then it should simply end the case by disapproving the BCD, consistent with the CCA’s appropriateness determination.

On rebuttal, the government began by taking “great exception with the word ‘opportunity’ twice mentioned by defense counsel” (regarding the opportunity for a dialogue between the CA and the CCA, and the opportunity for the CA to take some other action). Argument audio at 39:45. The government agreed that the CCA had the authority to disapprove the BCD as inappropriate, and that it should have done so if that is what is warranted in this case.

In summation, the government’s counsel stated:

The United States means no disrespect to Judge Everett or the CCA, but they were both absolutely mistaken when they violated Article 60. In reviewing the caselaw on CCAs standard under Article 66, Judge Gierke’s words in the unanimous Baier opinion from this court in 2005 are apt here: “the lower court’s opinion quotes an incorrect standard for determining sentence appropriateness. In using that language however, the lower court cited a 19-year-old summary disposition of this court that was marred by a mistaken and misleading citation. That mistake is a weed in the garden of our jurisprudence. We will now pull it up by the roots.” The United States respectfully asserts that the concurring opinion in Clark, footnote 4 in Healy, and the CCA decision, simply cannot stand and must be reversed. They must be pulled.

Case Links:
AFCCA’s first opinion
AFCCA’s second opinion
Appellant’s (government) brief
Appellee’s brief
Cross-appellant’s brief (Fosler issue)
Cross-appellee’s (government) brief (Fosler issue)
Oral argument audio
Argument recap