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Argument Preview: United States v. Lee, No. 07-0725/MC

CAAF will hear oral argument in the case of United States v. Lee, No. 07-0725/MC (CAAFlog case page), on Tuesday, December 17, 2013. The court will consider a single issue:

 Whether the Court of Criminal Appeals erred in finding no Due Process violation where 2,500 days elapsed between sentencing and removal of appellant’s name from the Texas sex offender registry.

The facts of this case are likely well known to most regular readers of this site; however, I’ll provide a refresher/consolidated summary.  Appellant was convicted in 2005 by a military judge sitting as a general court-martial, after mixed pleas, of three specifications of burglary, one specification of conduct unbecoming an officer and a gentleman, and five specifications of indecent assault in violation of Articles 129, 133 and 134, UCMJ, respectively. He was sentenced to confinement for three years, forfeiture of all pay and allowances, and a dismissal.

The underlying incident for these convictions is largely irrelevant to the resolution of the granted issue. The basics are that the Appellant, a Captain at the time, is alleged to have gotten drunk with a group of enlisted Marines while on an educational trip to Ireland with them and subsequently sexually assaulted five different enlisted Marines. The salient point there is that the Article 134, UCMJ convictions triggered sex offender registration.

At his first trial, the Appellant was represented by a civilian defense counsel and detailed military counsel. Apparently, unbeknownst to the Appellant, his detailed defense counsel was in the process of transitioning to the trial shop while he was still representing the Appellant. By the time of Appellant’s trial, his detailed defense counsel was prosecuting other cases, and the prosecutor in the Appellant’s case was the reporting senior for the Appellant’s detailed defense counsel. This situation did not become apparent to the Appellant until after his conviction.

Appellant raised this conflict of interest issue during his first appeal to the NMCCA. In June 2007, the NMCCA issued a ruling finding no actual conflict of interest. In July 2007, the Appellant was released from prison and registered as a sex offender in the state of Texas. CAAF granted review of the issue, and in June 2008, set aside the finding by the NMCCA and remanded the case for a Dubay hearing.

Once the case was returned to the trial court, things became a bit of a circus, although hilarity did not ensue. It took from July 2008 to April 2011 to square away the Dubay hearings and to figure out what the Appellant knew about the conflict and what impact it may have had on his defense.  This process included a disqualified trial judge, several trips to NMCCA and a total of three Dubay hearings.

In July 2011, the NMCCA found that there was no evidence that the conflict of interest had an impact on the Appellant’s case, but set aside the findings and sentence as “needed prophylaxis” in response to the failure of “the system of identifying and resolving professional conflicts of interests”. United States v. Lee, 70 M.J. 535 (CAAF 2011). Nevertheless, despite the fact that the Appellant’s convictions were set aside, it took the Government six months, until January 2012, to notify the Texas sex offender registry that the Appellant should be removed from its rolls. He was not removed until Feburary 2012

After the conviction was set aside and returned to the trial level, the convening authority entered into a pre-trial agreement with the Appellant, where the Appellant pled guilty to two specifications of Article 133, UCMJ. At the guilty plea in March 2012, the Appellant raised two due process claims; first, with regard to the general post-trial process and second, with regard to the Government’s failure to notify the state of Texas that he was no longer a convicted sex offender.

The trial judge denied the Appellant’s request for appropriate relief related to delay in the post-trial processing of his case. However, the trial judge found the delay in removing the Appellant from the sex offender registry was prejudicial and awarded him 123 days of confinement credit prior to sentencing. The Appellant also received 799 days of Allen credit for the time he served on his previous sentence. The military judge then sentenced the Appellant to nine months confinement, forfeiture of all pay and allowances for nine months, and a reprimand.

As the Appellant observes in his brief, after the new sentence he still has 652 days of credit from which he is currently deriving no benefit. App. Br. at 12. As an aside, it seems like this is an untapped area for some motivated entrepreneur. I envision some sort of trading exchange where pre-adjudication accuseds can purchase credit from post-trial appellants, thus giving those appellants some benefit for this unused credit. You know, sort of like the military justice version of Bitcoin. But I digress. The Appellant again raised the two due process issues at the NMCCA, who issued a single paragraph opinion in February 2013 denying the Appellant relief and stating he had “been afforded appropriate and continuing due process…resulting in meaningful relief from error.” That brings us about up to the present day.

There are two main battlegrounds under the granted issue.  The first battleground is the threshold question of whether the Appellant has waived any error related to earlier post-trial delay by his second guilty plea. Gov’t Br. at 8. The key to determining this issue is deciding what flavor of waiver we’re dealing with; whether it is the “regular” doctrine of waiver as normally applied (or not applied) to post-trial due process violations, or speedy trial waiver.  Govt’ Br. at 10.

As the Government explains, an unconditional guilty plea waives all non-jurisdictional defects. Gov’t Br. at 8-9. With a limited precedent-based exception for Article 10, UCMJ violations, speedy trial violations are non-jurisdictional. Gov’t Br. at 9-10. In contrast, a due process claim for delay in post-trial processing is not waived, even when an appellant fails to complain about it. Gov’t Br. at 10. But, how do we analyze a case where there is post-trial delay followed by a new hearing with a guilty plea? Should we analyze that post-trial delay as now being akin to a speedy trial violation or is it still a post-trial due process violation?

The Government makes a compelling case for why the CAAF should interpret this situation as similar to a speedy trial violation:

 The nature of Appellant’s claim is similar, if not identical, to a Sixth Amendment speedy trial claim that would be waived by an unconditional guilty plea. At trial, Appellant did not assert the right of a convicted service member to timely review of his conviction——his conviction had already been reviewed and overturned. Rather, he claimed that the Government should not be able to proceed with the rehearing because of delay that had occurred years earlier. Courts hold that this interest is identical to the one presented by a speedy trial motion. After a conviction is overturned, claims that the rehearing may not proceed because of earlier delay in the first appeal usually implicate the Sixth Amendment speedy trial right “in its most pristine sense.” Rheuark v. Shaw, 628 F.2d 297, 303 n.8 (5th Cir. 1980). If Appellant had defense witnesses or evidence become unavailable, and had been unable to mount a defense at the retrial, any speedy trial claim based on those facts would be waived by the later guilty plea. Tippit, 65 M.J. at 75. The result should not be different because Appellant has not even alleged that type of prejudice.

Gov’t Br. at 11-12. The government then goes for the coup de grace:

 But regardless of whether Appellant’s claim is a due process or speedy trial issue, the label attached to the violation “makes little substantive difference.” Burkett v. Fulcomer, 951 F.2d 1431, 1445-1446 (3d Cir. 1991). “[A] guilty plea waives all non-jurisdictional defects occurring prior to the time of the plea, including violations of the defendant’s rights to a speedy trial and due process.” Mizgala, 61 M.J. at 124 (quoting Tiemens v. United States, 724 F.2d 928, 929 (11th Cir. 1984)) (emphasis added).

Gov’t Br. at 12.

In reply, the Appellant argues that the Government is reading too broadly United States v. Bradley 68 M.J. 279 (CAAF 2010), which the Government cites for the proposition that an unconditional plea of guilt functions as a waiver for all non-jurisdictional errors. The Appellant argues that:

 The Government treats the first line of part II of Bradley as support for a new rule of “guilty plea waiver.” In doing so, it ignores the second sentence, which confines the waiver rule to those issues “relat[ing] to the factual issue of guilt of the offense(s) to which the plea was made.” This critical phrase materially narrows the broader one preceding it.

App. Reply at 1-2. This is an interesting point. One could read these lines from Bradley the way the Appellant does, with the second line materially limiting the first. But, the second line really only seems to be reciting RCM 910(j). See Bradley 68 M.J. at 281. The CAAF seems to be fairly clear about their view on the guilty plea waiver issue where they say later in Bradley that:

 While the waiver doctrine is not without limits, those limits are narrow and relate to situations in which, on its face, the prosecution may not constitutionally be maintained. United States v. Broce, 488 U.S. 563, 574-76, 109 S. Ct. 757, 102 L. Ed. 2d 927 (1989) (double jeopardy); Menna v. New York, 423 U.S. 61, 61-63, 96 S. Ct. 241, 46 L. Ed. 2d 195 (1975) (same). This is not such a situation, and the waiver doctrine therefore applies.

Bradley, 68 M.J. at 282. It’s worth noting as well that the issue being decided in Bradley was a claim by the appellant related to disqualification of trial counsel. Not exactly a “factual issue of guilt.” The Appellant’s best way forward to get past the threshold question of waiver appears to be honing in on why “the prosecution may not constitutionally be maintained.” And, the Appellant is not without arguments in that vein, as that topic touches on several key elements of the argument on the second main battleground.

The second main battleground is the crux of the issue, whether the Appellant was denied the due process right to a speedy post-trial review and appeal.  Both sides conduct a thorough analysis of the case using the four factors from Barker v. Wingo, 407 U.S. 514, 530 (1972):

 Those factors are: (1) the length of the delay; (2) the reasons for the delay; (3 )the appellant’s assertion of the right to timely review and appeal; and (4) prejudice.

The Government wisely and readily concedes that the first factor goes to the Appellant, as the delay in this case is virtually identical to the facially unreasonable delay in United States v. Toohey, 63 M.J. 100 (CAAF 2004). Gov’t Br. at 16. Needless to say, the Appellant does not disagree. Because the delay is facially unreasonable, the entire analysis is triggered.

Regarding the second factor, the Appellant makes some compelling arguments for why the delay is the fault of the Government, complete with an extensive chart showing major case events and the number of days between events and the number of days since the original sentence was adjudged. App. Br. at 18-20. For his part, the Appellant takes responsibility for 117 days of delay, 76 of which were to allow the Appellant to prepare to return to active duty after his case was set aside.  App. Br. at 20. The Appellant points to the “dilatory and lackadaisical processing” of the case after each Dubay remand, noting the convening authorities only met one deadline out of three Dubay deadlines, resulting in additional delay of 217 days. App. Br. at 23.

The Appellant also goes after the trial and intermediate appellate courts, saying the “inordinate delay” in this case was a self-inflicted wound by these courts. Id. The primary points here are that the first Dubay trial judge’s failure to understand why he was disqualified and the intermediate appellate court’s failure to give clear direction on what it wanted from the Dubay hearing were the reason this case was stuck in Dubay purgatory for 1,114 days. App. Br. at 23-26. Regardless, none of this was the Appellant’s fault.

The Government’s primary argument as to why this factor does not weigh in favor of a due process violation is that there are few if any inexplicable periods of delay and that the case was continually moving. To this end, the Government includes a very compelling and informative color graphic comparing the progress of this case with the lack of progress in Toohey. The Government responds to most of the Appellant’s main points and notes that part of the reason this case bounced between Dubay hearings and the NMCCA was that the Appellant was alleging the first Dubay judge’s conflict constituted structural error. Gov’t Br. at 21. Because the resolution of this issue could decide the case, the Government arguess that it was not unreasonable for the NMCCA to address the issue.

Additionally, the Government notes that the reason the third Dubay hearing was necessary was due to the Appellant’s failure to testify in person at the second Dubay hearing. The Government sums up its argument saying:

 The first appeal involved three DuBay hearings, four oral arguments, five court orders or opinions, and “the generation of a record on appeal that dwarfs the original record of trial.” (J.A. 6.) This Court should review the Court of Criminal Appeals shepherding of the case through the process with reasonable deference,“recognizing that it involves the exercise of the Court of Criminal Appeals’ judicial decision-making authority.” Moreno, 63 M.J. at 137. Therefore, on the whole, the reason for the delay should not weigh in favor of a due process violation.

Gov’t Br. at 23.

The parties next address the third factor, assertion of right to speedy review. The Appellant cites five events that he claims are assertions of his right to speedy review, including two objections to scheduling delays, objections to Government motions for enlargement, a motion to suspend briefing and for a new Dubay, and his motion filed at his new hearing, after his first sentence was set aside. App. Br. at 27.

The Government responds by reminding the Appellant of his own delays throughout the post-trial process, including a delayed initial filing, three motions for enlargement, two requests for oral argument, a request for excludable delay to return to active duty, and a 22 day extension to submit clemency. Gov’t Br. at 26-27. The Government further argues that the best evidence of the Appellant’s failure to assert a right to timely review is the fact that he never raised this issue until after his case was set aside and remanded. Gov’t Br. at 25. The Government is concerned about the ramifications that allowing the Appellant to prevail in this case will have:

 If Appellant is able to proceed as he is attempting to do,future appellants will be better off not raising ripe delay issues. That is, if an appellant in Moreno’s position thought he was going to be successful on the implied bias issue, he could keep the post-trial delay  issue as an insurance policy in the event he was convicted at the rehearing.

Gov’t Br. at 26.

The Appellant replies to this line of argument by pointing out that:

 At the conclusion of the third DuBay hearing there was no way to know what, if any, action the lower court would take. Moreover, because the case was still in the appellate process at that point, additional delay was accruing with every passing month. The cleaner and only appropriate approach was the one Appellant adopted: raise the issue at the rehearing itself then raise the issue at first chance after the rehearing to the service court. It could not be clearer that Captain Lee neither sat on his hands nor improperly neglected to complain.

App. Reply at 6.

For the fourth factor, prejudice, the Appellant briefly argues that this case is one of those cases that is so egregious a showing of prejudice is not required. App. Br. at 27-28. However, the Appellant also continues on and addresses the first two categories of prejudice from Moreno:  oppressive incarceration pending appeal and anxiety and concern of those convicted awaiting the outcome of their appeals.

For the first category, the Appellant points to the language from Moreno that if an appellant’s substantive appeal is meritorious and the appellant was incarcerated during the appeal period, that may make the incarceration oppressive. App. Br. at 29. That was certainly the situation for the Appellant here.

The Government responds to this argument by pointing out that the Appellant was released from prison the around the time the Moreno clock expired, and that the majority of the delay occurred after the Appellant was released from prison. Gov’t Br. at 28. Essentially, the Appellant would have spent the same amount of time in confinement waiting for his first appeal anyway. Further, the Government argues that even if the CAAF finds oppressive incarceration, it should give that factor little weight since the case not overturned for factual insufficiency. Id.

The Appellant starts his argument related to anxiety and concern with a picture of his Texas sex offender web page copied into the brief. He proceeds to explain the detrimental effects of being a sex offender and the failure of the process to move quickly enough for him to be removed in a reasonable time frame. App. Br.  at 32. The Government responds to this section with the bizarre argument that:

 Appellant’s claim of  prejudice, and really his entire due process claim, rests on the claim that but for the delay, his conviction would have been overturned sooner, and as a result he would have had his name removed from Texas’ sex offender registry years earlier. (Appellant’s Br. at 8.) But this claim neglects the fact that it was the delay that allowed Appellant to end up in his current position. But for the delay, he would still be a sex offender.

Gov’t Br. at 29. The Government believes this is the case for three reasons. First, the Government asserts that if the case had been processed faster, the Appellant’s detailed defense counsel might have had a better memory at the Dubay hearings about what he disclosed to the Appellant concerning his conflict. This in turn might have made the previous case at CAAF turn out differently. Gov’t Br. at 30. Second, the Government argues the passage of time benefited the Appellant because when the case was set aside, the victims in the case no longer wanted to participate in the case and their memories had “faded.” Gov’t Br. at 31. Third, the Government argues that the delay allowed the Appellant more time to build his case for rehabilitative potential. Gov’t Br. at 31-32.

Breaking out the DeLorean or crystal ball or I’m not sure what, the Government makes the bold assertion that if this case had come back in 2006 or 2008, the accused would still be a sex offender because the result would have been similar to his first trial and/or the convening authority would not have given him such a favorable plea deal. Gov’t Br. at 32. This reasoning strikes me as something along the lines of someone who breaks into my house and steals my old laptop telling me that I should really be thanking them because my insurance bought me a new one. While I’m happy to have a new laptop, I still don’t have a great feeling about what happened and would probably like to see something bad happen to the person who took my old laptop.

The parties close their briefs by discussing what the appropriate remedy should be if the CAAF finds a due process violation. The Appellant asks for a dismissal and argues that this is an appropriate rebuke to the Government’s inaction and indifference in removing the Appellant from the registered sex offender list after his case was set aside. App. Br. at 35-39. The Government response is similar to portions of their argument on the Barker prejudice factor, but essentially boils down to the fact that, in their view, the Appellant has benefitted overall from any delay in the post-trial processing of the case, and he was given credit and a lenient sentence in recognition of the Government’s failure to take steps to remove the Appellant from the Texas sex offender registry. Gov’t Br. at 33-34.

If you’ve stuck it out to the end of this analysis, the unfortunate news is that your only reward is my marginally informed prediction about the outcome of the case. My sense though is that the Appellant will have a tough time getting past the waiver issue. If the CAAF resolves that issue in favor of the Government, which I believe it will, then that’s the end. What remains to be seen is whether CAAF will leave it at that or if they will address any sort of dicta related to the shenanigans with the Dubay hearing or the Government’s failure to act to immediately to remove the Appellant from the sex offender registration list. That last issue in a way loops back into the discussion on Zach’s Talkington preview about whether sex offender registration is truly only a collateral consequence. Maybe CAAF will provide some further clarity on that point, but I’m not counting it.

Case Links:
NMCCA opinion (2007)
Blog post: Is it a conflict for an accused to be represented by a part-time DC/part-time TC?
CAAF opinion (66 MJ 387 (2007))
Blog post: CAAF orders additional factfinding in defense counsel conflict case
NMCCA opinion (2009)
• Blog post: Repeated-Lee remanded (in homage to the musical 1776)
NMCCA opinion (2011)
Blog post: Important published NMCCA opinion on USMC defense counsel who was a subordinate of the prosecutor
Blog post: Thoughts on United States v. Lee
NMCCA opinion (2013)
Appellant’s Brief
Appellee’s (Government) Brief
Appellant’s Reply Brief

Military Justice News for November 15, 2013

A commenter mentioned something about “The Weirick.” A little research turned up this story in the Marine Corps Times:

The Marine whistle-blower who was fired from his job in September received a poor performance evaluation after his removal — more proof of reprisal, his attorney says, for voicing concerns about senior leaders’ involvement in the legal proceedings stemming from a high-profile scandal.

Maj. James Weirick, a Marine attorney stationed in Quantico, Va., received his most recent fitness report in late October from Col. Donald Riley, the supervisor who ousted him from his post after Weirick wrote a confrontational email to Peter Delorier, a former legal adviser to Marine Corps Commandant Gen. Jim Amos. Dated Oct. 24, the document rates Weirick as average or below average in individual skills, character and leadership competencies, and recommends he not be promoted.

If this keeps up then I’m going to have to issue a retraction of my post where I argued that the existing prohibitions on retaliation for reporting offenses are strong enough.

The Marine Corps Times also has this story of an acquittal in a long-running court-martial in California:

A combat-wounded Marine accused of defrauding the government as part of a massive embezzlement scheme was acquitted this month after defense attorneys argued during his court-martial that his command took extraordinary measures to ensure he was punished.

The criminal case against Staff Sgt. Anthony Rios Jr., 38, is significant because his legal team tied the aggressive effort to prosecute him to a presentation delivered last year to thousands of Marines around the world from the service’s commandant, Gen. Jim Amos. Amos’ so-called Heritage Brief took aim at what he saw as a rash of misbehavior in the ranks — everything from sex assault and hazing to monkey business in the war zone — and called for Marines to hold one another accountable when they screw up.

Rios, a forward observer with 3rd Air Naval Gunfire Liaison Company, was charged in 2011 with conspiring to steal $3,000 through bogus travel claims.

Law and Order: SVU has a new episode titled “Military Justice.” A full rundown of the episode is here (spoilers galore), and includes this:

Amelia [alleged rape victim] comes by the precinct after word of the arrests [of those she accused]. Just as she begins to open up about the female hazing that takes place on the base, several officers barge into the office, arresting Amelia for fraternization, disorderly conduct, and adultery. They drag her out of the office. Shocked, Liv doesn’t understand how they can charge her with adultery when she’s single. Barba explains that since Lipitt is her junior, he won’t be charged. What’s more, now that she’s been charged, the charges against the men will be dropped. The next step will be an Article 32 hearing — which is like a grand jury, except that they can ask anything they want. As if a grand jury wasn’t traumatizing enough.

And there are multiple stories about an apparent shift (and who didn’t see this coming) in the focus of effort to “reform” the military justice system. From this Stars and Stripes story:

“We’re considering focusing the amendment on sexual assault and rape in response to some suggestions by undecided senators,” Gillibrand, who chairs the Senate Armed Services personnel subcommittee, told reporters. “We already have a majority on our current bill. … We may need 60 (votes) and we’re looking intently to undecided colleagues about what makes the bill stronger.”

Emphasis added. The story also notes:

Military officials said setting up the new independent office would cost about $113 million a year, including salaries for about 600 attorneys and support staff.

Finally, in news from the Naval Academy, the Associated Press got their hands on a copy of the Investigating Officer’s report in the former football players sexual assault case. An excerpt from this Washington Times story:

“As difficult as it would be for the government to prove beyond a reasonable doubt that (the alleged victim’s) professed lack of memory at the time Midshipman Graham engaged in sexual activity with her was due to her being substantially incapacitated, the government’s task becomes extremely more difficult, if not impossible, due to the heavy damage done to (the alleged victim’s) credibility at the Article 32 hearing,” Cmdr. Robert Monahan, the investigating officer in the case, wrote in his report to Miller.

The story continues with a comment from Susan Burke:

Susan Burke, an attorney for the alleged victim, said military prosecutors in the case are inexperienced and said officials should at least add more prosecutors to the trial team.

“There is no effort to get a win here — none,” Burke said.

Someone please help me out. What does Ms Burke consider to be “a win?” Because last I checked:

The [prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.

Berger v. United States, 295 U.S. 78, 88 (1935).

Hey. Why are you laughing?

US District Court Declines to Intervene in USNA Court-Martial

Here (AP via ABC News) is coverage of US District Judge Ellen Hollander’s decisin from the bench today declining to intervene in the court-martial of three former USNA football players at the request of the alleged victim’s counsel, Susan Burke. She reportedly stated, “I think for me to stick my nose in the Navy’s business right now would be a far cry from appropriate.”

Burke sought to have the court remove [USNA Superintendent VADM Mike] Miller from deciding whether the case of the three former football players, Tra’ves Bush, Josh Tate and Eric Graham, proceeds to a court-martial. She contends the superintendent is biased against her client because he thinks the case reflects badly on the academy and his leadership.

“He’s angry at the victim for speaking out,” Burke said.

Hollander noted that Burke went straight to federal court, without first seeking relief in the separate military system. The judge said Burke was asking the court to “micromanage the investigation.” She also said the request “trivializes the importance” of having a separate military justice system.

Doe v. Superintendent USNA Complaint

Here is a link to the Complaint filed by Susan Burke on behalf of the victim in the Naval Academy sexual assault Art. 32 hearing held last week.  Thanks to many for forwarding it.

Victim’s Counsel Files District Court Lawsuit to DQ USNA Superintendent

So Susan Burke has gone from witness in the Art. 32 hearing to advocate asking the Superintendent to disqualify himself, AP (via ABC News) report here:

A midshipman accusing three former U.S. Naval Academy football players of sexually assaulting her at an off-campus toga party has asked in a federal lawsuit for the school’s superintendent to remove himself from deciding whether the men will be court-martialed, her attorney said Thursday.

The suit filed in Maryland seeks a court order directing Vice Adm. Michael Miller to recuse himself, Attorney Susan Burke said. It says that as the head of the school, Miller is likely to be biased and that he did nothing to prevent lengthy and abusive testimony during a military court hearing on the accusations.

Ms. Burke has interesting notions of standing so this should be . . . interesting, see Cioca v. Rumsfeld here and here.  H/t LB

Military Justice News for Jun. 18, 2013

The Manning case will take a hiatus from testimony as Judge Lind hears oral arguments on evidentiary issues today and the government and defense negotiate witness statements for witnesses that are unable to appear. Coverage from AP (via WaPo) here

Arguments in the CCR lawsuit in D.Md. district court were held yesterday, AP (via ABC News) reports here. It would appear that the Army’s proposed 2 day turn around time on documents from the case will satisfy the district court. Now why can’t the Army do that in all courts-martial?

Here’s a headline I couldn’t have predicted “Pending Hasan trial having positive economic impact,” see Temple Daily Telegram here (subscription required).

Though a little dated, a San Antonio based Air Force recruiter, TSGT Jaime Rodriguez, was sentenced to 27 years in the brig for aggravated sexual assault and other charges stemming from contact with recuruits and potential recruits.  Texas Public Radio report here and AF Times report here.

Three Naval Academy football players are going to face an Art. 32 hearing for sexual assault charges stemming from an incident last year.  USAToday reports here that the investigation of the case was re-opened after the alleged victim retained a lawyer, Susan Burke, and cooperated with investigators.  The report states that “that one of the accused football players told the victim not to cooperate with NCIS and that the academy closed the investigation in 2012, citing the victim’s unwillingness to cooperate as the reason.”

In the rocky legal terrain


Ms. Burke’s arguments in Cioca gained no traction, because in her own words her case was “based on rocky legal terrain,” which I thought the memorable phrase of the day.  Prediction is denial.  Nothing from the argument appeared to leave or create a suitable gem that could regain traction for a grant of a writ of certiorari.  So this litigation is about to be over.

The court: Judges Agee (M/Bush2), Niemeyer (M/Bush1), and Thacker (F/Obama).  They were a hot bench.  Although Judge Thacker did not ask any questions she was clearly attentive.

As best we could tell Ms. Burke was the only person involved in the litigation who was there.  We had thought there would be a number of supporters and media.

Just as Ms. Burke began the argument with her first emotional pitch of the day Judge Agee asked about the Coast Guard litigants.  Ms. Burke argued, “it was a complex question, that there had been a declaration of war, and that her clients had told her they were subject to the UCMJ,” or words to that effect.  However, she conceded they were likely not proper parties.  If the court does as predicted and denies the appeal, the answer to the question becomes irrelevant.  Ms. Burke still does not get it that a declaration of war and an authorization to use military force comes from Congress, but that an authorization to use military force is not a declaration of war.  Also, it is true that active duty members of the Coast Guard are subject to the UCMJ.  But that doesn’t mean they are in the Navy and thus the Department of Defense.

The judges were focused about separation of powers and the abstention doctrine.  That was the bulk of the questions.  Much reference was made to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), United States v. Stanley, 483 U.S. 669 (1987), and Chappell v. Wallace, 462 U.S. 296 (1983).  But at times Ms. Burke herself wandered into arguing matters that were APA or  injunctive relief related and other type claims not before the court.  The DOJ attorney took less than five minutes to make two points:  Ms. Burke had conceded everything, leaving some minor missed deadlines within DoD and some ignoring of Congressional directives as fault for the cause of action, and the APA related irrelevant arguments.  As counter-concessionary argument, Ms. Burke told the court DOJ had conceded everything she was raising, “at page 20 of their brief.”

Ms. Burke argued the case was unique (interspersed with emotional appeal) and in particular argued that the alleged offenses were not incident to service.  She also argued that money damages was a least intrusive remedy compared to injunctive relief.  To which Judge Niemeyer offered the idea that a Soldier hitting another in the jaw commits a crime, but the Secretary of Defense is not liable for that in his personal capacity for money damages.  Essentially Judge Niemeyer pointed out that there are processes in place to discipline and take care of these issues.  (There was no discussion or retort that current events show the in-house remedies ineffective and proof of the claim.)  Again the point was made that the litigants were asking for money not injunctive relief.  Judge Niemeyer acknowledged in some detail the sexual assault problem, which is where much of the discussion about the current fiascos came up.  (My Liege and I disagree a little on this.  His position, I think, is that the current matters are not relevant or evidence in the Cioca case.  My position is that while not formally announced, could not the court take appellate judicial notice of the ongoing crisis.)

The bulk of the questions highlighted concern that the courts were being asked to manage the day to day activity of the military.  As a basic principle courts don’t manage the day to day business of the military.  Questions emphasized that Congress is taking action, the military is taking action, and the President is taking action.  But, emphasized the questioners, Congress has not directed any judicial remedy in the federal courts relevant to the case before them.  The “go talk to Congress,” meme was clear if not directly said.  The judges’ views follow quite well this line from Stanley, “the fact that congressionally uninvited intrusion into military affairs by the judiciary is inappropriate.”  Stanley, 483 U.S. at 683.  And reading a little further into Stanley, and presaging DOJ’s counsel.

Similarly irrelevant is the statement in Chappell, erroneously relied upon by Stanley and the lower courts, that we have “never held, nor do we now hold, that military personnel are barred from all redress in civilian courts for constitutional wrongs suffered in the course of military service.”  As the citations immediately following that statement suggest, it referred to redress designed to halt or prevent the constitutional violation rather than the award of money damages.  Id., (citations omitted).

Ms. Burke raised the point that abstention is a prudential doctrine.  Again she was faced with questions that the Supreme Court has narrowed any exceptions to the doctrine, rehearsed the aversion to running the military on a day to day basis, and firmly restated the absence of a specific statutory remedy.  Toward the end of her argument Ms. Burke acknowledged that even if the case proceeded there may be “causation” problems in proving the case.

During Ms. Burke’s rebuttal there was an odd (I’ll call it odd) interchange where Judge Agee quoted from Dean Erwin Chemerinsky, (now at UC-Irvine, ML).  The judge asked her that a person such as Chemerinsky likely to be on her side.  And then he read a quote in which Chemerinsky is purported to have said that no Bivens action can ever lie for such military related cases.  The import being that even Dean Chemerinsky would deny the appeal.  To which Ms. Burke testified that she had talked to the Dean and he agreed with her position.

I commented on my own reactions to seeing Invisible War last year.  I noted a comment made by Ms. Kearl, a AAUW legal person involved and helping with the litigation of Cioca v. Rumsfeld.  The tenor of her remarks was that they did not expect to win.  And, she basically said, “She (meaning the attorney) doesn’t intend to win.  This is done for the media attention.”  The media attention is there, the litigation is not.  However, the litigation has certainly contributed to the effort to persuade Congress to act, even if current events had not been at the fore — “See Congresswoman, the courts won’t help us, please create a remedy, change the law, or something, the courts are closed to us, unbar the door,” or words to that effect.

Judge Niemeyer, observed that the D.C. court had just dismissed the Klay, et. al. v. Panetta, et. al.  Here is a link to the memorandum opinion of Judge Amy Jackson dated 7 February 2013, dismissing that case.

Accordingly, the Court will grant defendants’ motion to dismiss because Supreme Court precedent requires the Court to abstain from inferring a Bivens remedy for plaintiffs under these circumstances and plaintiffs have not overcome defendants’ entitlement to qualified immunity.8

(n.8.  While plaintiffs offered to amend their complaint during oral argument, Tr. at 31–32, they have never filed a motion to amend attaching any amended complaint, much less one that could – after the several chances they have had already – cure the problems at the heart of this action).

JOC, Judge Agee did ask Ms. Burke why neither Panetta nor Hagel were being sued, no good answer.

We will link to the audio when available – probably Tuesday.

Affirmative.  There is more to do on a road-trip than 25 minutes at the Fourth, besides it was an awesome top down day.  :-)

Here’s a link to some of the posts about TIW and Cioca.

Cioca’s counsel makes untenable filing at 4th Circuit

Susan Burke today filed this supplemental brief addressing whether those plaintiffs in Cioca v. Rumsfeld (including Ms. Cioca herself) who were Coast Guard members have standing to sue two former SECDEFs.

Her argument is untenable.  It is a matter of fact that the Coast Guard has not operated as part of the Department of the Navy at any point since 9-11.  Yet she says it has:

Two plaintiffs, Kori Cioca and Panayiota Bertzikis, brought claims against the former Secretaries of Defense, but not for claims that arose when the Coast Guard operated within the Department of Homeland Security. Rather, both Plaintiffs brought claims for events that occurred when this nation was at war.

During time of war, the Coast Guard reports to the Secretary of the Navy, not to Secretary of Homeland Security.   See 14 U.S.C.A. § 3, stating “Upon the declaration of war if Congress so directs in the declaration or when the President directs, the Coast Guard shall operate as a service in the Navy, and shall so continue until the President, by Executive order, transfers the Coast Guard back to the Department of Homeland Security. While operating as a service in the Navy, the Coast Guard shall be subject to the orders of the Secretary of the Navy who may order changes in Coast Guard operations to render them uniform, to the extent he deems advisable, with Navy operations.” See Louisville & N.R. Co. v. U.S., 258 U.S. 374 (1922) (those in the Coast Guard should be considered military “troops” during time of war); Edmond v. United States, 117 S.Ct. 1573, 137 L.Ed2d. 917 (1997) (“Congress has established the Coast Guard as a military service and branch of the Armed Forces that, except in time of war (when it operates as a service within the Navy), is part of the Department of Transportation. 14 U.S.C. §§ 1–3.”)

This nation has been at war. See Public Law 107-40, 115 Stat. 224 (September 18, 2001). For that reason, Plaintiffs Cioca and Bertzikis joined the litigation against the former Department of Defense officials.

Public Law Number 107-40 is not a declaration of war; rather, by its own terms, it’s an “Authorization for Use of Military Force.”  Nor does that statute direct that the Coast Guard operate as part of the Department of the Navy.  Nor has the President done so.  Thus, not only as a factual matter, but also under the very statute upon which Ms. Burke relies, the Coast Guard has not operated as a service in the Navy at any point since 9-11.  I can’t imagine what counsel hopes to gain by telling the Fourth Circuit something that is obviously incorrect.

Are you busy tonight?

The fayobserver has this interesting post today.

CBS will air “48 Hours: Honor to Dishonor” this Saturday at 10 p.m. The 42-minute show highlights the court-martial of Sgt. Brent Burke at Fort Campbell, Ky. last year and actually had some pretty good access to Army lawyers. I had a sneak peak of the program and, while there is no Fort Bragg connection, there are some similarities to a very well-known Bragg case.

New lawsuit filed against DOD by sexual assault victims

Yesterday was the day of the Hastings Women’s Law Journal forum on sexual assault in the military.  A parallel event was Susan Burke’s announcement that she had filed a new lawsuit against DOD on behalf of 19 sexual assault victims.  Each of the plaintiffs served in the Army or Air Force.  The defendants are the current Secretaries of Defense, Army, and Air Force and two former SECDEFs (Gates and Rumsfeld).  The suit was filed in the United States District Court for the Northern District of California.  Coverage of that lawsuit including a copy of the actual 49-page complaint, is available here.

Civil sexual assault litigation

I am in San Francisco enjoying the scenery and getting ready for a panel on sexual assaults in the military at Hastings College of Law on Friday.  And this came across my desk:

Sept. 25, 2012

Advisory: More Than 20 Vets to Allege Military Sexual Assaults; Rep. Jackie Speier to Join Survivors, Advocates for News Conference – Friday

SAN FRANCISCO, Calif. – A new lawsuit will be filed Friday in San Francisco federal court on behalf of more than 20 U.S. Army and Air Force veterans who allege they were sexually assaulted during their military service.

The sexual assault survivors, who are from a dozen states, will bring suit against Secretary of Defense Leon Panetta and the secretaries of the U.S. Army and the U.S. Navy, among others, alleging failure to protect them from rape and sexual assault while on active duty.

This is the fifth federal lawsuit of its kind filed by attorney Susan Burke whose work was featured in the groundbreaking documentary The Invisible War<>. Ms. Burke and the plaintiffs in the lawsuit will speak at a post-filing news conference. They will be joined by leading advocates from Protect Our Defenders and the American Association of University Women.

Congresswoman Jackie Speier (D-San Francisco/San Mateo) will also join the news conference to speak about her efforts in Congress to reform the military justice system and the way it handles cases of rape and sexual assault. In November 2011, she introduced H.R. 3435, the Sexual Assault Training and Oversight Prevention Act (STOP Act) that would create an impartial office made up of civilian and military experts within the military to review cases of rape and sexual assault. The bill has 133 bipartisan cosponsors.

• A post-filing news conference with lawsuit plaintiffs, their legal counsel, and leading advocates of reform of the military justice system.
• Congresswoman Jackie Speier will discuss the STOP Act and its status in Congress.

• Veterans participating in the lawsuit
• Congresswoman Jackie Speier<>
• Susan Burke, Burke PLLC<>, Washington, D.C., lead counsel for the survivors
• Katie Weber, Advocacy Board Member, Protect Our Defenders<>
• Kathleen Cha, Director, American Association of University Women<>

Friday, Sept. 28, 2012, 11:30 a.m. Pacific

TBA  Alumni Reception Center 
UC Hastings College of the Law
200 McAllister St., San Francisco, CA, 94102

In addition to the Ciaoca litigation and the litigation to be disclosed above you can see this FTCAclaim decision from federal district court in NC in Durden v. United States.  This relates to the Pernell court-martial that we followed for some time.  Here is an announcement of the Durden lawsuit.

Here is a selection of links to Pernell’s court-martial.

“The Invisible War”: uninformed, dishonest, or both?

I watched the documentary “The Invisible War” today.  I had already noted several discrepancies when I was struck by a graphic at the end of the movie stating that Secretary of Defense Panetta saw the film on April 14, 2012 and “two days later, he took the decision to prosecute away from commanders.”  No, no he didn’t.  That characterization reflects a fundamental misunderstanding of who continues to make prosecutorial decisions (military commanders of at least the rank of O-6).  A DOD news report on Secretary Panetta’s April 16 announcement emphasizes the point that prosecutorial discretion remains with commanders:  “That change will ensure that sexual assault cases receive high-level attention and that cases remain in the chain of command, Panetta said.”  How did the movie get that point — bragging about its own impact — so wrong?

That error is a blow to the film’s credibility — not that it had a great deal of credibility before that point.  Well, not that it had a great deal of credibility with me.  Based on the audible reactions in the Brookline, Massachusetts theater, most (and maybe all) of the rest of the audience were aghast with DOD as a result of the film.  Of course, there’s probably an enormous self-selection bias in who goes to see such a film.

It’s also understandable why an audience would be aghast.  While the film presents the stories of many alleged military sexual assault victims, Kori Cioca receives the lion’s share of the screen time.  She’s a former Coast Guard enlisted member who describes being raped by a superior.  She comes across as both sincere and sympathetic.  That said, no doubt there’s another side to the story, but that other side wasn’t presented by the film.  So the audience sees only the sympathetic former Coast Guard member who describes being abandoned by her command and who the film actually shows unsuccessfully attempting to obtain VA benefits as a result of her injuries sustained during the rape.

I’ll probably write more about the movie in a few days, but here are some of the problems.  The film maker shows the husband of a Marine officer who was allegedly raped talking about the power of the military commander.  To make the point about how much control the commander exercises, he says that the commander picks the players in the court-martial process, including the defense counsel.  Of course, that’s not true.  I don’t blame the husband for not knowing that.  But did the film maker not know that?  Or did he know it but include that false information without a correction anyway?  Neither answer to that question is a good one.

The film also has a voiceover while presenting a complex flowchart on handling of sexual assault allegations.  It refers to roughly 2,600 unrestricted reports and 700 and some restricted reports.  The voiceover says something like more than 700 complaints are shunted off as restricted reports so the perpetrators aren’t prosecuted.  But it isn’t the system that creates that result; it’s the alleged victim.  My understanding is that restricted reporting was adopted to provide greater control to alleged victims.  Yet the film didn’t portray it that way.  Rather, an uninformed viewer of the film would likely come away thinking that military commanders handed out more than 700 get-out-of-jail-free cards in the form of restricted reports.

Speaking of uninformed, the film includes a former NCIS agent providing a wildly inaccurate discussion of military crimes, felonies, and sex offender registration requirements.  During that discussion, a camera pans over a spreadsheet of sexual assault case outcomes, lingering on an acquittal.  The message seemed to be that we should be outraged that a servicemember who had been fully acquitted didn’t have to register as a sex offender.

The film opened with a graphic saying that all of the statistics in the movie came from U.S. government reports.  I’ll try to run some of those to the ground.  For now, let’s just say that some of the stats raised questions in my mind — and given other inaccuracies in the film, I’m unwilling to simply accept the stats on faith.

The film discussed a lawsuit filed by Susan L. Burke on behalf of Ms. Cioca and others against former Secretaries of Defense Rumsfeld and Gates for allegedly fostering an atmosphere that allowed the plaintiffs to be sexually assaulted.  Cioca v. Rumsfeld, No. 1:11-cv-l 51-1.0-‘l’CB (E.D. Va.).  The film once again evoked an audible reaction — almost a collective gasp — from the audience when it said that the case was dismissed on the grounds that rape is an occupational hazard of military service.  While the phrase “occupational hazard” wasn’t in quotes, the way the information was presented seemed to create the impression that that’s what the court said.  In fact, film critic Roger Ebert interpreted it in just that way in his review of the film:  “A recent court decision held that rape was an ‘occupational hazard’ of the job.”  Guess what?  Not only is that phrase not in the court’s ruling dismissing the case, but that concept is entirely absent from the decision, which I’ve linked here.

Here’s the judge’s actual rationale for dismissing the case:

In the present case, the Plaintiffs sue the Defendants for their alleged failures with regard to oversight and policy setting within the military disciplinary structure. This is precisely the forum in which the Supreme Court has counseled against the exercise of judicial authority. Where the Supreme Court has so strongly advised against judicial involvement, not even the egregious allegations within Plaintiffs’ Complaint will prevent dismissal. See [United States v. Stanley, 483 U.S. 669, 683 (1987)] (“[I]t is irrelevant to a ‘special factors’ analysis whether the laws currently on the books afford [the Plaintiff], or any other particular serviceman, an “adequate” federal remedy for his injuries. The special factor that counsels hesitation is not the fact that Congress has chosen to afford some manner of relief in the particular case, but the fact that congressionally uninvited intrusion into military affairs by the judiciary is inappropriate.”) (internal quotations omitted).

Cioca v. Rumsfeld, No. 1:11-cv-l 51-1.0-‘l’CB, slip op. at 2 (E.D. Va. Dec. 9, 2011) (second and third alterations in original).

It’s demagoguery to present that decision as a ruling that rape is an occupational hazard of military service.  And yet the film did.  That may tell us all we need to know about “The Invisible War.”  But I’ll bet it wins an Oscar.

Military Justice News – Valentine’s Day 2012 Edition

A USMC tank driver got a little love from a convening authority today. WSJ reports here that the Marine commander in SW Afghanistan has dropped charges of negligent homicide in a 2011 friendly fire incident.  Sgt. Jason R. Byrd, had been “charged with negligent homicide and other offenses stemming from the friendly-fire death of Lance Cpl. Benjamin Schmidt on Oct. 6.”

Unlikely pairing over at CNN, here, of NBA sensation Jeremy Lin and the courts-martial related to the suicide and alleged hazing of Private Danny Chen and Corporal Harry Lew in Afghanistan.

Then on Thursday, a U.S. Marine sergeant was found not guilty of hazing Lance Cpl. Harry Lew, who committed suicide last April in Afghanistan. A Marine Corps report revealed that Lew had been beaten by his superiors with sand poured in his mouth for falling asleep while on duty. Another Marine was sentenced to 30 days in jail and demoted; a third faces court-martial over the death. Lew’s case along with that of Pvt. Danny Chen, who was found dead in October from an apparent suicide, have spurred Asian American members of Congress to demand hearings on hazing in the military.

Chen, the only Chinese American soldier in his unit in Afghanistan, was called “gook,” “chink” and “dragon lady,” forced to crawl on gravel while fellow troops threw rocks at him, and made to shout instructions in Chinese to fellow troops (no one else in his unit spoke Chinese). The Asian American civil rights group OCA has met with Pentagon officials to demand better treatment of Asians in the military.

The Bowling Green Daily News reports, here, that SGT Brent Burke’s court-martial is now set for May 2, 2012 in the death of his wife and former mother-in-law in 2007.  Burke had faced two civilian trials for the same charges.  Prior coverage here and here.

In Ugandan MilJus news, here, certain segments of the bar are calling for prosecution of service-members accused of torture in civilian courts rather than courts-martial.

Military Justice News Jan. 26, 2012

Hereis a story from Jacksonville, NC.  Apparently a V-22 squadron operations officer, Maj. Danny Cohlmeyer, down in New River is accused of doing naked fly-bys of local females.  He’s charged in both local court nad a GCM scheduled to start next week. According to the Ft. Campbell docket, here, the trial starts Feb. 6 in front of an all officer panel, preceded by an Art. 39(a) session on Feb. 3rd. 

An Air Force Art. 32 hearing is deciding the fate of a cadet charged with rape on USAFA gorunds.  The Colorado Springs Gazette reports, here:

Thomas, Colangelo, Claxton and several other cadets were drinking and partying in Colorado Springs when Thomas said he noticed a woman, a former cadet, was extremely drunk.

None of the cadets knew where she lived, so they brought her back to the dorms, Thomas said. After placing her on a bed, Thomas said he and other cadets left the room.

A few minutes later, Colangelo said he asked Thomas why the door was locked.

Colangelo testified to Lt. Col. Rhonda Bershok — who presided over the hearing — that he and Cadet David Burns banged on the door.

Colangelo said when Claxton opened the door, he and his friends found the woman with her pants unzipped and her shirt pulled up.

Moments later, Claxton punched Burns in the face, yelling “I’m not a rapist. I’m not a rapist,” Thomas said.

The cadets reported the incident to their superiors that night.

The SGT Brent Burke court-martial in the killing of his wife and mother-in-law is scheduled to start next month.  Coverage here from the Bowling Green Daily News.  Our prior coverage of the facts and two prior civilian trials is here and here.

BREAKING NEWS: Gov’t changes course, will not appeal acquittal

The headline alone suggests that United States v. Burke, Misc. Dkt. No. 2011-08, would not be your run-of-the-mill appellate case. 

Our prior coverage of this unusual appeal can be found here.  In summary:  1st Lt Patrick T. Burke was tried by a military judge sitting as a general court-martial, and was found not guilty only by reason of lack of mental responsibility.  The government thereupon filed an Article 62 notice of appeal, indicating that it had consulted with appellate government counsel and the convening authority’s SJA and stating, in pertinent part, “The Government intends to appeal the order or ruling of the Military Judge that terminated the proceedings.”  Precisely how the government planned to appeal an acquittal was not made clear; but as one of my colleagues here in Las Vegas (a former AF trial defense counsel) speculated, “Maybe the government thinks insanity acquittals should be best two out of three.”

Alas, we will never know.  Today, the government sent notice to the Air Force Court of Criminal Appeals that it would not, in fact, file an Article 62 appeal in Burke.