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This Week in Military Justice – February 18, 2018 (updated)

This week at SCOTUS: A new cert. petition with filed in Gray v. United States, No. 17-7769 (CAAFlog case page). Ronald Gray is one of only four prisoners on military death row (our #2 Military Justice Story of 2016). Back on November 8, in a per curiam decision I analyzed here, CAAF dismissed a writ-appeal petition with prejudice. The decision was so remarkable that the next day I wrote a second, deeper analysis (available here). Gray’s cert. petition questions CAAF’s dismissal. The petition is available here. The questions presented are:

1. Which court system, Article I military or Article III civil, appropriately exercises jurisdiction in final military cases to conduct initial review of constitutional claims that arise after or in conjunction with direct appeal?

2. Does 28 U.S.C. § 1259(1) confer certiorari jurisdiction over a decision of the Court of Appeals for the Armed Forces dismissing a coram nobis petition in a military death penalty case?

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

This week at CAAF: The next scheduled oral arguments at CAAF are on February 27, 2018.

This week at the ACCA: The Army CCA’s website is still inaccessible from the public internet (discussed here).

Update: A reader informs me that the Army CCA will hear oral argument in one case this week, on Thursday, February 22, 2018, at 10 a.m. The CCA will hear argument on both an appeal and a petition for a new trial:

United States v. Kohlbek, No. 20160427

Issue:
I. Whether the military judge erred by prohibiting the appellant from presenting evidence relevant to the appellant’s post-polygraph statement.

Petition for new trial:
Whether this court should grant appellant’s petition for new trial based on newly discovered evidence.
I. Whether the military judge abused his discretion by failing to suppress the appellant’s post-polygraph statement.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on April 6, 2018 (at Penn State Law).

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

This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in one case this week, on Wednesday, February 21, 2018, at the George Washington University Law School, 2000 H Street NW, Washington, DC 20052, at 12:05 p.m.:

United States v. Hoffmann, NMCCA No. 201400067

Case Summary: In 2013, a general court-martial comprised of officer and enlisted members convicted the appellant of multiple charges involving a child, and for possessing child pornography. We affirmed the conviction the following year. In 2016, the Court of Appeals for the Armed Forces (CAAF) set aside the findings and sentence, dismissing the child pornography charges with prejudice and authorized a rehearing on the remaining charges. [(CAAFlog case page)]

At his rehearing, a general court-martial comprised of officer members convicted the appellant, contrary to his pleas, of two charges involving a child. The appellant was sentenced to reduction to pay grade E-1, 10 years’ confinement, forfeiture of all pay and allowances, and a dishonorable discharge. The convening authority approved the adjudged sentence and, except for the punitive discharge, ordered it executed.

Issues:
I. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE ADMITTED PROPENSITY EVIDENCE UNDER MILITARY RULE OF EVIDENCE 414 AND FAILED TO CONDUCT A PROPER MILITARY RULE OF EVIDENCE 403 BALANCING TEST.

II. WHETHER THE MILITARY JUDGE ERRED WHEN HE DID NOT EXTEND HIS RULING THAT COLONEL WOODARD WAS DISQUALIFIED FROM PROVIDING INPUT ON THE ARTICLE 34, UCMJ, LETTER AS STAFF JUDGE ADVOCATE TO INCLUDE OTHER AREAS OF PRETRIAL ADVICE.

III. WHETHER THE MILITARY JUDGE SHOULD HAVE RECUSED HIMSELF AS HE HAD BEEN THE REPORTING SENIOR TO THE MILITARY JUSTICE OFFICER DURING THE INITIAL INVESTIGATION AND WAS INFORMED BY NCIS ON MATTERS RELATED TO THE APPELLANT’S CASE.

The Benchbook revision’s odd discussion of rape and the death penalty

The Military Judges’ Benchbook, Dep’t of the Army Pamphlet 27-9, has been updated to address the revision to Article 120 and the new Articles 120b and 120c, as Zack discussed here. The new Article 120 and 120b Benchbook provisions each includes an odd discussion of the death penalty.

As we previously discussed, the new new Article 120b is, without serious question, not a capital offense.  Article 18 of the UCMJ provides a general court-martial with jurisdiction to adjudge “the penalty of death when specifically authorized by this chapter.”  Article 120b doesn’t authorize death as a punishment; rather, it provides that someone who “is guilty of rape of a child . . . shall be punished as a court-martial may direct.”  That allows the President, acting pursuant to Article 56, to cap the sentence at anything up to and including confinement for life without eligibility for parole.  But it doesn’t authorize a death sentence.  So what on earth does this “Note” in the Benchbook’s discussion of Article 120b (linked here) mean?:

NOTE 2:  Death sentence.  The plurality opinion in Coker v. Georgia, 433 U.S. 584 (1977), held that the death penalty for the rape of an adult woman is unconstitutional, at least where the woman is not otherwise harmed.  RCM 1004(c)(6) indicates that the death penalty for rape is authorized when the offense was committed in time of war and in territory in which the United States or its ally was an occupying power or in which the United States armed forces were engaged in active hostilities.  RCM 1004(c)(9) indicates that the death penalty for rape is authorized where the victim is under the age of 12 or the accused maimed or attempted to kill the victim.

The death penalty isn’t authorized for any violation of Article 120b, which applies only to offenses committed on or after 28 June 2012.  And the new instruction including the note on the death sentence is to be used “for offenses occurring on or after 28 June 2012.”

Contrary to what the note seems to imply, the President has not authorized and cannot authorize death for a post-27 June 2012 rape committed in a war zone or occupied territory since Congress hasn’t authorized death for such rapes.  Nor can the President authorize death for  a post-27 June 2012 rape of a child or a rape accompanied by maiming or an attempt to kill since Congress hasn’t authorized death for such rapes.

It’s also strange that the note cites Coker v. Georgia but doesn’t mention the more recent SCOTUS decision in  Kennedy v. Louisiana, 554 U.S. 407 (2008), or the follow-on opinion regarding denial of reconsideration, in which a majority of Supreme Court Justices address the issue of whether death can be an authorized sentence for rape of a child in the military justice system.  Kennedy v. Louisiana, 129 S.Ct. 1 (2008) (statement of Kennedy, J,., joined by Stevens, Souter, Ginsburg, and Breyer, JJ., respecting denial of certiorari).

The Benchbook’s discussion of the new new Article 120 (linked here) includes a note identical to Article 120b’s note 2.  But once again, Article 120 doesn’t authorize capital punishment; rather, it provides that someone who “is guilty of rape . . . shall be punished as a court-martial may direct.”  While the 2006 legislation establishing the previous version of Article 120 included an authorization for death as a punishment for either rape or rape of a child, see Pub. L. No. 109-163, § 552(b)(1), 119 Stat. 3257, 3263, the legislation creating the 2012 version of Article 120 contained no such language.

So the revised Benchbook’s discussion of the “death sentence” for Articles 120 and 120b is outdated confusing surplusage.  The Benchbook’s drafters should remove it when they make the next revision, which will probably come when the President adopts maximum punishments for the new new Article 120 and for the offenses established by Articles 120b and 120c.

A Few Thoughts on the Afghan Shootings and Likely Court-Martial

First, don’t prejudge the government or defense case.  We don’t know what the accused said or did leading up to or after the events and we have no idea what defenses the accused will put forward, though as Bloomberg notes (here) it already looks like diminished capacity is the route they will take.  At the end of this long process, and it will be a long process if the MAJ Hasan, SGT Akbar, or other recent capital cases are any good as yardsticks for this case, we’ll need to reassess our initial thoughts on mental health defenses and other intial impressions based on all the facts.

Second, while the SOFA between the US and Afghanistan does not allow Afghan prosecution, that doesn’t mean the US could not release SSGT Bales to the Afghans for trial.  As we discussed, here, the US is always free to turn over servicemembers to a host nation regardless of the preference in a SOFA.  And, potentially, keep the accused in US custody during the host nation trial–as the former US-Iraq SOFA anticipated under certain circumstances.  I think in this case the real calculus is the same one as in most in theater crimes, good order and discipline.  The US military has a huge G.O. and D. interest in prosecuting this case to deter war crimes.  That, probably more than the rules of any SOFA, made the forum an easy choice in this case.

Third, if there is any in theater case that may end in a plea agreement this is the case.  As much as our Afghan partners may want to see a trial and swift execution, this may not be the case if the mental health issues play out in the direction they currently seem to be heading.  This will be an interesting test of the Army’s screening system for TBI and mental health issues. 

And, finally, what this case will not feature, thankfully, are the two issues that have plagued the military justice system for the last decade, questions of racial disprity and competence of counsel.  See the late Prof. David Baldus’ study, Racial Discrimination In The Administration Of The Death Penalty: The Experience Of The United States Armed Forces (1984–2005), 101 Journal of Criminal Law and Criminology 1227 (2012), and any of the death penalty reversals in the last decade, e.g. United States v.Kreutzer, 61 M.J. 293 (C.A.A.F. 2005)).

Stay tuned for a potential NIMJ event about the case and MilJus process. [Updated para. 1]

Updated military death penalty stats [CORRECTED]

Now that we know United States v. Bozicevich will end in a non-capital sentence, we can update the statistics for military death penalty cases.

Under the current military death penalty system, which President Reagan promulgated in January 1984, there have been 52 known capital courts-martial resulting in 16 adjudged death sentences, for a 30.8% death sentencing rate.  (Convening authorities commuted two of the adjudged death sentences and appellate courts reversed eight of the approved death sentences.)

Here’s a breakdown by branch:

USAF:  11 capital courts-martial; 2 adjudged death sentences  (18% capital sentencing rate)

U.S. Army:  21 capital courts-martial; 7 adjudged death sentences (33% capital sentencing rate)

USCG:  0 capital courts-martial; 0 adjudged death sentences

USMC:  14 capital courts-martial; 7 adjudged death sentences (50% capital sentencing rate)

USN:  6 capital courts-martial; 0 adjudged death sentences (0% capital sentencing rate)

Historically, about 25% of the military death penalty caess tried in the current system have resulted in a non-unanimous finding of guilty to premeditated murder or felony murder, thereby eliminating death as an authorized sentence.

[Correction:  The original post misstated the percentage of Army cases resulting in a death sentence when I accidentally repeated one of the raw numbers in lieu of the percentage.  Gordon Smith caught the error.  Thanks!]

Courts-Martial and Other News Apr. 27, 2011 [Updated]

•  Another Navy CO is relieved, see San Diego Union Tribune here and Navy press release here.  Commander, Destroyer Squadron ONE was reportedly relieved “from command while an investigation into an alleged inappropriate relationship is conducted. . . . DESRON 1 [is] embarked on USS Carl Vinson (CVN 70) conducting support for Operations Enduring Freedom and New Dawn, as well as maritime security operations in the U.S. 5th Fleet area of responsibility” as part of the VINSON carrier strike group.

•  President Obama released his long form birth certificate, see here and press release here.  Hopefully this prevents any further officer career flame outs over this mess–though it is unlikely to end the birther question because, as CAAFlog readers know, each time a birther argument gets shot down, 5 new arguments grow in its place.

•  This report from Ft. Hood suggests that the delay in the MAJ Hasan court-martial should be at an end now that the  change of command at Ft. Hood has occurred.  The reports states that, “It was announced in late March that [Ft. Hood CG LTG Robert Cone] granted a request by the accused shooter’s attorney to delay Maj. Nidal Hasan’s court-martial proceedings until late April, waiting for [his relief, LTG Donald M. Campbell, Jr], to take command.  Hasan’s attorney, retired Col. John Galligan, said Cone couldn’t be impartial because he was at Fort Hood during the incident and ‘received information about the case early on that may not have been accurate,’ according to an Associated Press report.”  See bio for the new CG, here.

•  According to this report from the Seattle Weekly blog, an Army 706 Board has apparently deemed Sgt. John M. Russell “competent by a board of medical specialists to stand trial. ‘Coordination is under way to transfer Sgt. Russell from Butner to an Army confinement facility,” [an Army spokeswoman said.] ‘The next step in the judicial process will be an Article 32 hearing which is currently scheduled for 8 August 2011.'”  See prior coverage of SGT Russell’s shooting spree at Camp Liberty here.

•  COL (ret) Morris Davis writes an op-ed, here, for the LA Times comparing the cases of KSM and PFC Manning.  He writes:

[A] video is circulating of President Obama, the commander in chief of the armed forces, in conversation at a California fundraiser last week. “He broke the law,” Obama says of Manning. No need to secure a courtroom or endure a protracted trial; the commander in chief rendered his extrajudicial verdict. And military justice meets its mortal enemy once again.

In 1949, Gerald Ford, then a congressman from Michigan, described his firsthand experience with command influence when he served as a Navy officer in World War II. He said: “Too often a court-martial board does not determine the guilt or innocence of the accused.” Instead, he recalled military jurors retiring to the deliberation room to ponder, “What does the Old Man [the commander] want us to do?”

When the jurors retire to the deliberation room at the Manning court-martial, they will not have to speculate on the answer; arguably the most important “Old Man” of them all has spoken, and he said Manning is guilty.

. . . . In November 2009, Obama defended his decision to prosecute Mohammed in federal court (a decision he subsequently abandoned), saying no one would question it “when [Mohammed is] convicted and when the death penalty is applied to him.” Atty. Gen. Eric H. Holder Jr. made similar remarks, telling the Senate Judiciary Committee: “Failure is not an option. These are cases that have to be won. I don’t expect that we will have a contrary result.”

All participants in the military commissions are accountable to the commander in chief. Many, in addition to their status as uniformed military reserve officers, are career employees of the Department of Justice. When the attorney general says that only a guilty verdict is acceptable, and the commander in chief endorses the death penalty for an accused who has not been convicted, they undermine confidence in justice by injecting the appearance of undue influence.