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A confused call to eliminate the factual sufficiency powers of the Courts of Criminal Appeals

The law review at my alma mater recently published an article calling for an end to the Article 66(c) power of a court of criminal appeals to conduct a factual sufficiency review of a court-martial conviction. Matt C. Pinsker, Ending the Military’s Courts of Criminal Appeals De Novo Review of Findings of Fact, 47 Suffolk U. L. Rev. 471 (2014) (link to article). The author is a practicing criminal defense attorney who worked as an extern with the Army Government Appellate Division while studying for his LL.M.

The article asserts that the justifications for the CCA’s factual sufficiency review power no longer exist because:

Due to amendments to the UCMJ over the past fifty years, military trials now resemble civilian trials and are presided over at both special and general courts-martial by an independent and professional circuit of military judges with powers modeled after Article III judges. This has reduced the potential for command influence while increasing the professionalism of trials, thus mitigating the chances of legal error. Furthermore, the fact-finding power of the military’s courts of criminal appeals is actually an impediment to justice because it adds a considerable burden on the military’s already severely backlogged appellate system. Claims of factual insufficiency are frequently and easily made by appellate defense counsel, but are very time consuming for appellate prosecutors to respond to.

Pinsker, supra, at 472. The article makes numerous assertions that I think are a stretch, including claiming that there is “a powerful military [trial] judiciary,” id. at 487, and asserting that “the United States Supreme Court recognized the change from law officers to military judges has created an independent judiciary within the military,” id. at 487 (citing Weiss v. United States, 510 U.S. 163, 191-192 (1994) (Souter, J., concurring)). However, Chief Justice Rehnquist’s opinion of the Court in Weiss explained:

[T]he position of military judge is less distinct from other military positions than the office of full-time civilian judge is from other offices in civilian society. As the lead opinion in the Court of Military Appeals noted, military judges do not have any “inherent judicial authority separate from a court-martial to which they have been detailed. When they act, they do so as a court-martial, not as a military judge. Until detailed to a specific court-martial, they have no more authority than any other military officer of the same grade and rank.” Military appellate judges similarly exercise judicial functions only when they are “assigned” to a Court of Military Review. Neither military trial nor appellate judges, moreover, have a fixed term of office. Commissioned officers are assigned or detailed to the position of military judge by a Judge Advocate General for a period of time he deems necessary or appropriate, and then they may be reassigned to perform other duties. Even while serving as military trial judges, officers may perform, with the permission of the Judge Advocate General, duties unrelated to their judicial responsibilities. Whatever might be the case in civilian society, we think that the role of military judge is “germane” to that of military officer.

510 U.S. at 175-76 (1994) (citations omitted). I agree that military judge’s have a significant measure of independence (though the fleeting nature of their assignment is notable), but I don’t agree that military judges are “powerful” (particularly when their limited powers are compared to the powers of Article III judges, or even to the powers of a convening authority).

Another assertion that I question is that:

Claims of factual insufficiency place a very heavy burden on the government’s appellate attorneys. Answering the defense’s claim of factual insufficiency forces government attorneys to reargue the case on paper, which is a very time-consuming process. A government attorney has to go through hundreds, and sometimes thousands, of pages of the trial record to pick out evidence and witness testimony supporting the finding of guilt and rebutting the claims of the appellate defense attorneys. Depending on the length of the trial record and the specific nature of the claims of factual insufficiency, addressing this one assignment of error can easily take a government attorney days to complete, despite its high likelihood of futility.

Pinsker, supra, at 503. I doubt that factual insufficiency claims are so vague as to require Government counsel to engage in scavenger hunts for rebuttal evidence, and I can’t help but marvel at the author’s claim – in a single sentence – that factual insufficiency claims both have a high likelihood of futility and require comprehensive rebuttals. The author also sees a need “to discourage appellate defense counsels from alleging factual sufficiency assignments of errors they know are unlikely to succeed.” Id. at 504. This reads like an assertion that appellate defense counsel make frivolous claims.

Another part of the article asserts that service members facing court-martial enjoy greater due process protections than civilians facing civil prosecution, citing five examples: Article 31 rights, free appellate counsel, the Care inquiry, free mitigation experts, and clemency. Pinsker, supra, at 507-519. I think each of these examples is flawed, for the following reasons:

First, the author rightly acknowledges that “the requirement in the military that an accused is informed of his or her right to remain silent and right to an attorney is more expansive than in civilian criminal justice,” id. at 508, but he ignores the reason: “Congress passed Article 31(b) ‘to provide servicepersons with a protection which, at the time of the Uniform Code’s enactment, was almost unknown in American courts, but which was deemed necessary because of subtle pressures which existed in military society.'” United States v. Jones,  73 M.J. 357, __, slip op. at 8-9 (C.A.A.F. Jul. 21, 2014) (quoting United States v. Duga, 10 M.J. 206, 209 (C.M.A. 1981)).

Next, the detailing of appellate counsel without regard to indigency is a difference from civilian practive, but the author ignores the fact that counsel are detailed only when a court-martial results in a punishment large enough to trigger CCA jurisdiction (or a JAG elects to send the case to the CCA). This portion of the article also includes what I believe is a dangerously inaccurate footnote:

There is no right to counsel at summary courts-martial. Summary courts-martial outcomes are not federal convictions, and the trial itself is not a criminal prosecution within the meaning of the Sixth Amendment. They are intended to be a brief and informal hearing, and having counsel present would defeat that purpose. Furthermore, the accused can always turn down summary courts-martial in favor of special or general courts-martial. See Middendorf v. Henry, 425 U.S. 25, 46-47 (1976).

Pinsker, supra, at 510, n. 279 (emphasis added). A summary court-martial is a jeopardy-triggering court-martial proceeding, and it can invoke any number of collateral consequences of a conviction (such as sex offender registration). Middendorf involved the narrow question of whether a summary court-martial is a criminal prosecution for purposes of the Sixth Amendment right to counsel. It did not declare that a summary court-martial conviction is not a criminal conviction.

The third factor the author identifies is the Care (guilty plea) inquiry, which he asserts is “just one more protection unavailable to civilians.” Pinsker, supra, at 515. But as with the protections of Article 31(b), the author overlooks the history behind the rule. As the Court of Military Appeals explained in United States v. Chancelor, 36 C.M.R. 453 (1966) (a case upon which the Care inquiry was based):

During the hearings on the Uniform Code of Military Justice, there was considerable concern expressed regarding the entry of guilty pleas in courts-martial, and Congress made clear the nature of the safeguards which they intended to surround the receiving of such a judicial confession.

36 C.M.R. at 455. Service members are often compelled, by the exercise of military authority, to do things. The plea inquiry is necessary to ensure that pleading guilty isn’t one of them.

Fourth, the author asserts that “another right granted to members of the military but not to civilians is the provision, at the government’s expense, of a mitigation expert in capital cases.” Pinsker, supra, at 515. This assertion implies that a mitigation expert is guaranteed, but in United States v. Kreutzer, 61 M.J. 293, 305 (C.A.A.F. 2005), CAAF noted that “capital cases do not confer a per se right to a mitigation specialist…” (though the court concluded that “erroneous denial of Kreutzer’s request for a mitigation specialist was error of constitutional magnitude.” Id.). In any event, capital courts-martial are exceptionally rare, so this point is of limited significance. And there is also the issue of the absence of an express requirement for experienced capital defense counsel in capital courts-martial. See United States v. Witt, No. 36785, __ M.J. __, __, slip op. at 114-142 (A.F.Ct.Crim.App. Jun. 30, 2014) (Peloquin, J. dissenting in part) (discussed here).

Finally, the author highlights the convening authority’s clemency power, asserting that “military members have the strong possibility of receiving clemency from the convening authority.” Pinsker, supra, at 517. But the article does not address the recent changes to Article 60(c) that significantly restrict this clemency power. Moreover, the author seems to have no qualm with the concept of a convening authority wielding an absolute veto over the findings, instead of a CCA applying relevant principles of law. Id. at 519. Compare Article 60(c)(1), 10 U.S.C. § 860(c)(1) (version effective prior to Jun. 24, 2014) (“authority to modify findings and sentence “a matter of command prerogative involving the sole discretion of the convening authority”), with United States v. Nerad, 69 M.J. 138, 147 (C.A.A.F. 2010) (CCA’s action under Article 66(c) must be based on “a correct view of the law”).

Notably, the article does not discuss the fact that a court-martial deprives an accused of the right to trial by jury. Last year, in this post, I discussed an excellent article about the need to preserve the commander’s power to reverse findings of guilt. Colonel Andrew S. Williams, Safeguarding the Commander’s Authority to Review the Findings of a Court-Martial28 BYU J. of Pub. L. 471 (2014) (link to article). A few months later, in this post, I revisited that article to note how a particular civilian jury’s acquittal after a lengthy deliberation would have been a conviction by a court-martial panel. There are significant differences between a court-martial panel and a jury and Colonel Williams’ article discusses features of a jury that ensure reliability (size, unanimity, random assignment, etc.), but that are missing from a court-martial panel, explaining how this can lead to inaccurate results that require correction by reviewing authorities with the power to set aside the conviction. But Mr. Pinsker’s article does not consider these differences. Instead, he asserts “the jury panel at courts-martial is superior to a civilian jury because of the rigorous entry and selection requirements concerning education, intelligence, and character standards of officers.” Pinsker, supra, at 523.

Ultimately I think that the authority of a court of criminal appeals to “may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact,” Article 66(c), is an integral part of military law. Without that authority, military law risks devolving back into “a rough form of justice.” Reid v. Covert, 354 U.S. 1, 35 (1957).

JSC solicits public comments for proposed amendments to the Manual for Courts-Martial

Today’s Federal Register contains this public notice, 79 Fed. Reg. 59,937 (Oct. 3, 2014), of proposed changes to the Manual for Courts-Martial. The notice also solicits public comments regarding the proposed changes (due no later than December 2, 2014), and provides notice of a public meeting about the proposed changes to occur on October 29, 2014, at CAAF.

The proposed changes consume 22 pages in the Federal Register (shorter than the 34 pages of changes proposed in 2012 and only partially adopted in 2013). The proposed changes mainly implement the military justice reforms in the National Defense Authorization Act for Fiscal Year 2014, signed into law by the President on December 26, 2013 (I discussed these reforms in a series of posts available here).

While much of the proposed changes are unremarkable, there are some surprises. For example, R.C.M. 405 (addressing the Article 32 process) is revised in its entirety (because of the revised Article 32 effective in December). The revised R.C.M. 405(h) states that

the Military Rules of Evidence do not apply in preliminary hearings under this rule except as follows . . . Mil. R. Evid. 412 shall apply in any case that includes a charge defined as a sexual offense in Mil. R. Evid. 412(d), except that Mil. R. Evid. 412(b)(1)(C) shall not apply. . . . [Mil. R. Evid.] 513(d)(8); and 514(d)(6) shall not apply.

79 Fed. Reg. at 59,941 (proposed R.C.M. 405(h)). These three Military Rules of Evidence that do not apply (412(b)(1)(c), 513(d)(8), and 514(d)(6)) are the constitutional exceptions to the general rules prohibiting admission of an alleged victim’s other sexual behavior or sexual predisposition (M.R.E. 412), establishing the psychotherapist-patient privilege (M.R.E. 513), and establishing the victim advocate privilege (M.R.E. 514).

The proposed changes emphasize that M.R.E. 412, 513, and 514 apply as exclusionary rules only, stating that the hearing officer “shall assume the military judge’s authority to exclude evidence from the preliminary hearing.” 79 Fed. Reg. at 59,941 (proposed R.C.M. 405(h)(4)) (emphasis added). Further, a new discussion section explains:

Although Mil. R. Evid. 412(b)(1)(C) allows admission of evidence of the victim’s sexual behavior or predisposition at trial when it is constitutionally required, there is no constitutional requirement at an Article 32 hearing. There is likewise no constitutional requirement for a pretrial hearing officer to consider evidence under Mil. R. Evid. 513(d)(8), and 514(d)(6) at an Article 32 hearing.

79 Fed. Reg. at 59,950.

The proposal also provides a new definition of the term “matters in mitigation” for the purpose of an Article 32 preliminary hearing:

For the purposes of this rule, “matters in mitigation” are defined as matters that may serve to explain the circumstances surrounding a charged offense.

79 Fed. Reg. at 59,941. The changes do not modify the definition of “matter in mitigation” found in R.C.M. 1001(c)(1)(B).

Other interesting proposed changes include:

  • Examples of the situations justifying closure of an Article 32 preliminary hearing from public access. 79 Fed. Reg. 59,9942 (proposed R.C.M. 405(i)(4)) (“may include: preventing psychological harm or trauma to a child witness or an alleged victim of a sexual crime, protecting the safety or privacy of a witness or alleged victim, protecting classified material, and receiving evidence where a witness is incapable of testifying in an open setting.”).
  • Establishment of a rule permitting post-referral of a case to a “parallel convening authority.” 79 Fed. Reg. 59,9942 (proposed R.C.M. 601(g)). A parallel convening authority includes “those convening authorities that possess the same court-martial jurisdiction authority” as the original convening authority. 79 Fed. Reg. at 59,951 (proposed discussion section for proposed R.C.M. 601(g)). This proposed rules “incorporates a recommendation of the May 2013 report of the Defense Legal Policy Board (DLPB), Report of the Subcommittee on Military Justice in Combat Zones.” 79 Fed. Reg. at 59,948.
  • Clarification of a victim’s right to be reasonably heard:
    • During pretrial confinement review (7-day) hearings that right “includes the right to be heard through counsel.” 79 Fed. Reg. at 59,938 (proposed R.C.M. 305(i)(2)(A)(iv)).
    • During hearings on the admissibility of evidence under M.R.E. 412, that right “includes the right to be heard through counsel.” 79 Fed. Reg. at 59,945 (proposed R.C.M. 412(c)(2)).
    • During hearings on the admissibility of evidence under M.R.E. 513, that right “includes the right to be heard through counsel.” 79 Fed. Reg. at 59,945 (proposed R.C.M. 513(e)(2)).
    • During hearings on the admissibility of evidence under M.R.E. 514, that right “includes the right to be heard through counsel.” 79 Fed. Reg. at 59,946 (proposed R.C.M. 514(e)(2)).
    • But, during sentencing hearings that right “means the right to testify under oath.” 79 Fed. Reg. at 59,943 (proposed R.C.M. 1001A).
  • Clarification of a convening authority’s power to reduce the sentence under the new Article 60(c):

(A) The convening authority may not disapprove, commute, or suspend, in whole or in part, any portion of an adjudged sentence of confinement for more than six months.

(B) The convening authority may not disapprove, commute, or suspend that portion of an adjudged sentence that includes a dismissal, dishonorable discharge, or bad-conduct discharge.

(C) The convening authority may disapprove, commute, or suspend, in whole or in part, any portion of an adjudged sentence not explicitly prohibited by this rule, to include reduction in pay grade, forfeitures of pay and allowances, fines, reprimands, restrictions, and hard labor without confinement.

79 Fed. Reg. at 59,944 (proposed R.C.M. 1107(d)(1)). This conforms with my interpretation of the new statute published in this post from last January, and it validates this post in which I criticized the Navy’s interpretation as erroneous.

  • Revision of M.R.E. 514 (the victim advocate-victim privilege) to become the “Victim advocate-victim and DoD Safe Helpline staff-victim privilege.’’ 79 Fed. Reg. at 59,945-46 (proposed M.R.E. 514). An note explains that:

Rule 514 was also revised to protect communications made to the DoD Safe Helpline, which is a crisis support service for victims of sexual assault in the Department of Defense. The DoD Safe Helpline was established in 2011 under a contract with the Rape, Abuse & Incest National Network.”

79 Fed. Reg. at 59,949.

  • Restoration of the missing note in ¶ 16.e of Part IV of the MCM (limiting the maximum punishment for a violation of Article 92). 79 Fed. Reg. at 59,947. I discussed reasons why the omission of this note from the 2012 version of the MCM was a typographical error in this post.

Notably, the proposed changes do not include a long-overdue rewrite of M.R. E. 412 to incorporate CAAF’s opinions in United States v. Ellerbrock, 70 M.J. 314 (C.A.A.F. 2011) and United States v. Gaddis, 70 M.J. 248(C.A.A.F. 2011). See this post for a discussion of a recent Army case about the issues with the balancing test in the rule.

The proposed changes also do not include the long-overdue model specifications for Article 120, 120b, or 120c (2012). However, practitioners can still consult my post from last September titled: There are no model specifications for Article 120 (2012), but if there were then they would probably be these model specifications.

Some notable recent military justice scholarship

In volume 63 of the Naval Law Review, Commander Robert P. Monahan, Jr., JAGC, USN, writes A Proposal to Conform Military Rule of Evidence 305 in light of the Supreme Court’s Holdings in Maryland v. Shatzer and Berghuis v. Thompkins, 63 Naval L. Rev. 67 (2014). Commander Monahan proposes modifying MRE 305(e)(3)(A) to incorporate the 14-day break in custody requirement from Maryland v. Shatzer, 559 U.S. 98, 110 (2010); modifying MRE 305(c)(4) to require an unambiguous invocation of the right to remain silent drawn from Berghuis v. Thompkins, 560 U.S. 370, 388-389 (2010); and modifying MRE 305(e)(1) and 305(e)(2) to permit implied waiver of the right to remain silent. This is a direct link to the beginning of the article in the complete volume of the Naval Law Review, hosted on the Navy’s website. This is a link to just the article, hosted on CAAFlog.

In the July volume of The Army Lawyer (link to full volume’s table of contents and articles), there are three notable articles:

  • Major Dane B. Getz, USAR, Closing the Gap in Access to Military Health Care Records: Mandating Civilian Compliance with the Military Command Exception to the HIPAA Privacy Rule, Army Law., July 2014, at 4 (direct link to article). Major Getz’s article reveals what I think is a disturbing institutionalized lack of respect for the protected nature of medical records. For example, the article considers a hypothetical situation where a “commander needs the NCO’s (non-commissioned officer’s] PHI [protected health information] as soon as possible to determine his continued fitness for duty and assess whether he may pose a danger to himself and others.” Id. at 5. Precisely what the commander (not a medical provider) will do with that information is unclear. Further, the article discusses the outrageous practice of issuing orders to Soldiers “to sign civilian medical release forms in their favor and/or turn over copies of their civilian PHI directly to commanders,” id. at 5 n.9, and labels Soldiers who wish to preserve their medical privacy as “medically non-compliant,” id. at 7 n.34.
  • Major Brent A. Goodwin, USA, Congress Offends Eisenhower and Cicero by Annihilating Article 60, UCMJ, Army Law., July 2014, at 23 (direct link to article). Major Goodwin’s articles discusses the changes to Article 60(c) in the FY14 NDAA and joins the debate over the meaning of the clemency limitations, ultimately agreeing with (though not discussing) my conclusion that in all cases the statute allows reduction of punishments that are not confinement for more than six months or a punitive discharge. Id. at 28. See this post.
  • Captain Jeremy R. Bedford, USA, Eligibility for VA Disability Compensation and Health Care Benefits for Army National Guardsmen Discharged with an Other Than Honorable Discharge, Army Law., July 2014, at 36 (direct link to article). Captain Bedford’s article concludes: “The interpretation of VA benefits eligibility in AR 135-178 needs to be revised to clarify that an ARNG’s [Army National Guard] OTH [administrative discharge under other than honorable conditions] will not affect the disability compensation and health care benefits to which Guardsman are entitled on the basis of a previous honorable active service deployment.” Id. at 39.

In the August volume of The Army Lawyer (link to full volume’s table of contents and articles), there are three notable articles:

  • Colonel James F. Garrett, USA, Colonel Mark “Max” Maxwell, USA, Lieutenant Colonel Matthew A. Calarco, USA, and Major Franklin D. Rosenblatt, USA, Lawful Command Emphasis: Talk Offense, Not Offender; Talk Process, Not Results, Army Law., August 2014, at 4 (direct link to article). The article coins a new term: lawful command emphasis. “Lawful command emphasis is, in short, the appropriate actions commanders or staff members can take within the military justice process to ensure good order and discipline is maintained within the ranks.” Id. at 6.
  • Major Matthew E. Wright, USA, A Distinction with a Difference: Rule for Courts-Martial 304 Pretrial Restraint and Speedy Trial, Army Law., August 2014, at 22 (direct link to article). Major Wright’s article discusses “the spectrum of restraint [that] begins with no restraint and progresses through conditions on liberty, restriction, arrest, restriction tantamount to confinement, and finally, confinement. A progressively onerous array of collateral consequences linked to the severity of the restraint imposed provides strong incentives for commanders to remain as close to the beginning of this spectrum as possible.” Id. at 25.
  • Colonel James W. Herring, Jr., USA, A View from the Bench: Make the Routine, Routine (U.S. Army Legal Services Agency Trial Judiciary Note), Army Law., August 2014, at 41 (direct link to article). Colonel Harring’s article discusses issues with specifications (i.e., the specifications on the charge sheet), script (i.e., the trial guide), and suspenses (i.e., deadlines).

The Navy’s erroneous interpretation of the revised Article 60(c)

The National Defense Authorization Act (NDAA) for Fiscal Year 2014 (FY14) made numerous changes to the UCMJ (analysis available here). Among those changes was section 1702(b) of the NDAA, revising Article 60(c) to limit a convening authority’s ability to modify either the findings or the sentence of a court-martial. This section was the focus of my analysis published earlier this month by LexisNexis (available at 2014 Emerging Issues 7217).

The revised Article 60(c)(2)(B) states that “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.” This allows a convening authority to modify the adjudged sentence, with certain limits. The limits are provided in Article 60(c)(4)(A), which states:

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.

My Emerging Issues Analysis discusses why this language limits a convening authority’s power for only the adjudged punishments of (1) confinement for more than six months and (2) a punitive discharge, leaving a convening authority free to modify any other adjudged punishment in any case. So, for example, when an accused is sentenced to confinement for one year and a $5,000 fine, the statute permits suspension of the fine (because it is not “an adjudged sentence of confinement for more than six months or a sentence of [punitive discharge]” ).

But the Secretary of the Navy recently took the opposite position in ALNAV 051/14, promulgating guidance that I believe is both erroneous and unlawful.

Paragraph 4.b of the ALNAV states:

b. Sentence

(1) A convening authority may modify a sentence that includes confinement for six months or less and that does not include a punitive discharge.

(2) A convening authority may not grant [sic], disapprove, commute, or suspend a sentence that includes confinement for more than six months or a punitive discharge, however:

(a) A convening authority may modify such sentences, including mandatory minimum sentences, if clemency is recommended in writing by the trial counsel in recognition of substantial assistance by the accused in the investigation or prosecution of another person for a violation of Ref B or other federal, state, local, or foreign criminal statutes; or,

(b) A convening authority may modify such sentences to effectuate a pretrial agreement. However, in a pretrial agreement, a convening authority may not agree to commute a mandatory minimum sentence except to reduce a mandatory dishonorable discharge to a bad conduct discharge, except pursuant to subsection b(2)(a) above.

(emphasis added). Besides the odd placement of the word “grant,” the error in this directive is the use of a word that does not appear in the relevant portion of Article 60(c): “includes.” The word “includes” dramatically expands the limitation in Article 60(c)(4)(A) in a way that Congress did not intend. Under the ALNAV, when an accused is sentenced to confinement for one year and a $5,000 fine, the convening authority may not suspend the fine (because it is part of “a sentence that includes confinement for more than six months or a punitive discharge” (emphasis added)).

Article 60(c)(4)(A) is the only limitation in the UCMJ on a convening authority’s power to disapprove, commute, or suspend any part of a sentence adjudged by a non-capital court-martial (pursuant to Article 71(d), a convening authority may not suspend a death sentence). Moreover, the Rules for Courts-Martial promulgated by the President establish a convening authority’s discretion in this area in rather explicit terms. R.C.M. 306(a) states that while a superior commander may withhold the authority to act on cases, “a superior commander may not limit the discretion of a subordinate commander to act on cases over which authority has not been withheld.” And R.C.M. 1107(b)(1) states that “the action to be taken on the findings and sentence is within the sole discretion of the convening authority.” Significantly, these provisions were not changed in Executive Order 13669, 79 F.R. 117 (Jun. 18, 2014) (discussed here), even though the Executive Order implemented provisions from the FY14 NDAA, including changes to R.C.M. 1107.

Additionally, three decades ago the Court of Military Appeals had some harsh words (in dicta) about the possibility that a superior would intrude upon the post-trial discretion of a subordinate:

[W]e shall not permit a superior commander to dictate how a convening authority exercises his discretion in acting on a special court-martial. According to the Code, if the convening authority acts on a case after trial, it must be in the exercise of his discretion rather than someone else’s.

United States v. Due, 21 M.J. 431, 434 (C.M.A. 1986).

The wording of the revised Article 60(c)(4)(A) is a little awkward and the term “adjudged sentence” is better read as “adjudged punishment,” but the plain meaning of the statute does not prohibit reduction of punishments that are not confinement for more than six months or a punitive discharge. A convening authority has unlimited power to disapprove, commute, or suspend an adjudged punishment of confinement for six months or less, reduction, restriction, forfeitures, a fine, hard labor without confinement, a reprimand, or to disapprove or commute a sentence of death, for any reason or for no reason at all. Only by adding the word “includes” to the text of the statute can the Secretary of the Navy expand its reach to prohibit modification of these other possible punishments.

And the analysis need not stop at plain meaning. Context (or the doctrine of noscitur a sociis – “it is known by its associates”) also plays a role. Besides limiting a convening authority’s ability to modify a sentence, Congress also limited a convening authority’s ability to modify findings when it revised Article 60(c) in Section 1702(b) of the FY14 NDAA. That limitation restricted findings modifications to cases involving a qualifying offense, which is defined with similar reference to confinement for more than six months or a punitive discharge. But unlike the provision addressing sentence modifications, Congress used the word “include” when defining a qualifying offense for findings modifications:

(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.

Article 60(c)(3)(D) (emphasis added); Pub. L. No. 113-66, § 1702(b), 127 Stat. 672, 956. This context implies an intentional difference (beyond the inclusion/exclusion disagreement) between the terms “the sentence adjudged does not include [punitive discharge] or confinement for more than six months,” Article 60(c)(3)(D)(i)(II) (defining a qualifying offense) (emphasis added), and “an adjudged sentence of confinement for more than six months or a sentence of [punitive discharge],” Article 60(c)(4)(A) (limiting the authority of reduce a sentence) (emphases added).

ALNAV 051/14 eliminates that difference by inserting the word “includes” into the limitation of Article 60(c)(4)(A). This exceeds the authority of the Secretary of the Navy. As a result, the defense should raise this as a legal error in every court-martial where it applies.

Notably, while the NDAA unambiguously limits the revised Article 60(c) to only cases tried on or after June 24, 2014, and involving offenses committed on or after June 24, 2014, ALNAV 051/14 fails to limit its application to offenses committed on or after June 24, 2014. The ALNAV states:

Effective 24 June 2014, the convening authority’s ability to modify the findings and sentence of a court-martial is further limited as follows:

ALNAV 015/15, ¶ 4. However, the FY14 NDAA states:

(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.

Pub. L. No. 113-66, § 1702(d)(2), 127 Stat. 672, 958. So, the defense should raise this as a legal error in every court-martial where the convening authority will act on or after June 24, 2014, regardless of when the offenses were committed.

I also think that ALNAV 051/15 is fairly characterized as unlawful command influence, assuming the Secretary of the Navy can engage in unlawful command influence (a question not reached by the majority in last term’s decision in United States v. Hutchins, 72 M.J. 294 (C.A.A.F. 2013) (CAAFlog case page)). Article 37, 10 U.S.C. § 837, states in relevant part:

No person subject to this chapter may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts.

Whether or not a convening authority feels legally bound by the errors in ALNAV 051/15, it is unlikely that a Navy or Marine Corps convening authority will split with the Service Secretary by taking action contrary to the text of the ALNAV. See Due, 21 M.J. at 434. Cf. United States v. Allen, 31 M.J. 572, 596 (N.Ct.Mil.Rev. 1990) (finding no evidence of unlawful command influence where “the Secretary merely reserved to himself, as he might under Article 74, supplemental clemency authority in national security cases.”). Accordingly, in addition to raising this issue as a legal error, the defense should also pursue a remedy to address the unlawful command influence.

Notably, I can’t find any similar policy pronouncements from the other services. My research reveals that only the Navy feels compelled to parse the language of the revised Article 60(c)(4). If anyone is aware of a similar directive in the Army, Air Force, or Coast Guard, please let me know.

None of this is to say that the Secretary of the Navy is powerless to limit convening authority clemency more rigorously than the limits imposed by Congress. If he wishes to do so, he need only convene all of the courts-martial himself. See Article 22(b); Article 23(b). See also United States v. Blaylock, 15 M.J. 190, 194-195 (C.M.A. 1983).

A personal note

A brief personal update: I left active duty on July 1 and moved to Massachusetts with my wife and two children. I remain in the Marine Corps Reserve. I’ve been busy setting up the household and preparing for civilian practice. More news on that to come.

I will continue blogging. In fact, I’m planning to do a lot of writing about military justice issues in the coming months. For example, here is a link to my analysis of the new Article 60(c) (the convening authority’s clemency power for offenses committed on or after June 24, 2014) published as part of the LexisNexis Emerging Issues Analysis series, 2014 Emerging Issues 7217.

NIMJ Submission to the Military Justice Review Group

Here is a link to Global Military Justice Reform’s post of the June 30, 2014, NIMJ submission to the Military Justice Review Group (UPDATE:  Here is the full submission).  Here is a link to the nearly empty webpage of the Military Justice Review Group being run by the DoD OGC.  As we mentioned the MJRG isn’t subject to FACA so there is no transparency requirement, but I have to say that the webpage is still pretty bad even for that low bar.

I am sure Zee will be happy see recommendation #7:

Bring the varied definitions of a “victim,” implemented in the 2013 changes to the UCMJ, into consonance as detailed in CAAFLog’s analysis of the 2013 changes.

There are five different definitions of the term “victim” in these changes, in Article 6(b), Article 32, Article 46(b), Article 60(d), and the new 10 U.S.C. § 1044e (the SVC statute).  See Zachary D Spilman’s comments: 2013 Changes to the UCMJ – Part 6: Practice notes,  available at http://www.caaflog.com/2014/01/10/2013-changes-to-the-ucmj-part-6-practice-notes/ .

My personal favorite, is #13:

13)  Amend R.C.M. 806 or 808 to provide for public and media access to court-martial pleadings and rulings in a timely fashion through adoption of the PACER system or its equivalent.  Such a system would promote transparency and would allow public and media access to court-martial proceedings in a timely fashion, goals that would enhance public understanding and confidence in the administration of military justice.

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?