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Military Justice News for Tuesday, October 28, 2014

A case in the Air Force out of Dover AFB. Civilian prosecutors dropped a child sexual abuse case, but the military pushed forward. Air flforce Times has the report on SGTbJesus Munoz’s acquittal here. The Sergeants attorney’s spin:

“We presented housing and deployment records” at the trial, Waddington said. When the child testified, “he admitted he and his mother had been practicing a long time what he should say [on the stand]. … He said that if he didn’t come up with something, [he] was going to get in a lot of trouble.”

Patrick Air Force base public affairs had not responded Monday to an Oct. 24 request to speak to the prosecutor on the case.

Does this make the system look better or worse that it takes cases civilians refuse to prosecute and then the prosecution loses the case?  Because it happens in the sexual assault area a lot.

Iraq war deserters still in Canada, Winnipeg News reports here.

The Air Force is investigating how Chief Master Sergeant Eric Soluri was promoted three times after being convicted and serving jail time for a domestic violence offense. AF Times report here.

MSGT Timothy Hennis files ex write at CAAF, FayObs report here. Hennis, for our occasional reader, was tried three times for the murder of Kathryn Eastburn, the wife of an Air Force captain who was out of town on temporary duty.  She was raped and killed in the Eastburn family’s home outside Fort Bragg on 9 May 1985.  The Eastburns’ three- and five-year-old daughters were also murdered.  Their infant baby was left alone in her crib.  The baby’s cries two days after the murders alerted neighbors that something was wrong.  Law enforcement officials quickly focused on Timothy Hennis, a soldier at Fort Bragg who had been to the Eastburns’ home to pick up a dog a few days before the murders.  In 1986, Hennis was tried by the state of North Carolina for the three murders and rape.  He was convicted and sentenced to death.  The North Carolina Supreme Court reversed the conviction, holding that the trial court erred by allowing the prosecution to present numerous grizzly crime-scene and autopsy photographs during the guilt/innocence stage.  State v. Hennis, 372 S.E.2d 523 (N.C. 1988).  Two justices dissented.  Id. at 528-31.  In 1989, Hennis was retried by the State of North Carolina and acquitted.  After advances in DNA revealed new evidence implicating Hennis, the military recalled him from the retired list to try him–his recall and the question of jurisdiction is the source of his ex writ–where he was convicted and sentenced to death.   See the rest of the story at our Top 10 post here.

Thanks to all of our zombie contributors for correcting my hastily posted prior version–it is your week and all.

The ACCA clarifies the definition of an extremist organization

Two recent decisions of the Army CCA evoke this pronouncement:

[L]oyalty to the Nation all the time, loyalty to the Government when it deserves it.

Mark Twain, The Czar’s Soliloquy, The North American Review, Vol. 180, No. 580 (Mar., 1905), pp. 321-326 (available here).

In the companion cases of United States v. Moyers, No. 20110975 (A.Ct.Crim.App. Mar. 31, 2014) (Moyers I) (link to unpub. op.), recon. granted and affirmed, (A.Ct.Crim.App. Apr. 28, 2014) (Moyers II) (link to unpub. op.), and United States v. Oliver, No. 20110986 (A.Ct.Crim.App. May 2, 2014) (link to unpub. op.), the Army CCA reverses convictions for membership in an alleged extremist organization called Dark Horse, finding that the organization does not meet the regulatory definition of an extremist organization under Army Regulation (AR) 600-20 (available here).

Specialist (SPC) Moyers and Private First Class (PFC) Oliver “deployed to Iraq with the same unit in 2009, returning in early 2010. In July or August 2010, SPC Moyers approached [PFC Oliver] about joining a group named ‘Dark Horse.’ [SPC] Moyers told [PFC Oliver] the purpose of the group was to defend the constitution and to fight alongside the military if the government were to become corrupt.” Oliver, slip op. at 2. PFC Oliver confessed to law enforcement personnel that he “was aware of the objectives of the organization,” that he “assumed the organization was illegal,” and that he “understood that the purpose of Dark Horse was to defend the constitution by force if necessary in case the government became corrupt.” Oliver, slip op. at 2. Agents from the Secret Service conducted a search of SPC Moyers’ home and computer:

The forensic exam of [SPC Moyers’] computer revealed several incriminating documents. The documents reference a “Dark Horse” organization which [SPC Moyers] described as a special task force within the U.S. Army’s Special Forces. . . . The purpose of the group was to “stand up and defeat the continuing corruption in our government as well as protect and defend the U.S. Constitution against all enemies foreign and domestic.” (emphasis in original). The documents also . . . characterizes the President’s actions as similar to Hitler in Germany in the 1930s and refers to President Obama as “the tyrant .”

Moyers I, slip op. at 4. SPC Moyers also confessed to law enforcement personnel, speaking “in detail about his personal political beliefs, the purpose of the ‘Dark Horse’ organization, and how the group evolved.” Moyers I, slip op. at 5. This included explaining that the organization began as a paintball team but “evolved into a militia” that was intended “to support and defend the Constitution, and was designed to fight alongside the military if need be, if the government ‘goes corrupt,’ and if they needed to respond. [SPC Moyers] likened it to making contingency plans.” Moyers I, slip op. at 5.

Both were charged and SPC Moyers was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of violating a lawful general regulation (AR 600-20); knowingly becoming a member of, or affiliating with, a group which encouraged the violent overthrow or destruction of the United States Government (in violation of 18 U.S.C § 2385, assimilated incorporated – see comment below under Art. 134); and advising, counseling and urging disloyalty and mutiny by members of the Armed Forces (in violation of 18 U.S.C § 2387, assimilated incorporated under Art. 134). He was sentenced to confinement for four years, reduction to E-1, and a dishonorable discharge. PFC Oliver was convicted pursuant to his pleas of guilty, by a special court-martial composed of a military judge alone, of conspiracy and failure to obey a lawful general regulation (AR 600-20), in violation of Articles 81 and 92. He was sentenced to confinement for eight months, reduction to E-1, and a bad-conduct discharge.

On review, a three-judge panel of the Army CCA (composed of Judges Kern, Aldykiewicz, and Martin) reverse SPC Moyers’ conviction for violating Article 92, and reverse all of PFC Oliver’s pleas, finding that Dark Horse does not meet the definition of an extremist organization under AR 600-20. In Moyers the panel affirms the convictions for violating 18 U.S.C.  §§ 2385 and 2387, but Judge Martin dissents and would reverse the § 2385 conviction as well. However, SPC Moyers gets no relief from the relatively-harsh sentence, while all of the charges against PFC Oliver are dismissed.

The Moyers opinion contains the more detailed analysis of the two, as early in the Oliver opinion the court states that its ruling is “consistent with our decision in a companion case, United States v. Moyers.” Oliver, slip op. at 1. The court begins by emphasizing the purpose of AR 600-20, and the associated Department of Defense Instruction (DoD Instr.) 1325.06 (available here) and Department of Army Pamphlet (DA Pam) 600-15 (available here):

The plain language of AR 600-20, paragraph 4-12, demonstrates it is designed to prohibit extremist activities that target people based on race, creed, color, sex, religion, ethnicity, or national origin in violation of their legal rights. The entire focus of the paragraph is the prevention of hate crimes in the Army and membership by soldiers in organizations that espouse discriminatory ideologies.

Likewise, DA Pam. 600-15 is intended to address problems with groups that are discriminatory in nature. The pamphlet provides examples of recent cases involving hate crimes, and provides the same definition for extremist activities as that found in the Army Regulation.

While the most current version of DOD Instr. 1325.06, dated 22 February 2012, provides a more comprehensive definition of prohibited activities by service members, the version in effect at the time of appellant’s court -martial was limited in scope. Like the Army regulation, the Instruction focuses on those groups that “deprive individuals of their civil rights.”

Moyers I, slip op. at 7-8. Because the focus of these regulations is on “discriminatory ideology,” and the Government presented no evidence that would support such a finding about Dark Horse, the CCA finds the conviction for violating the order to be legally and factually insufficient. Moyers I, slip op. at 8. Notably, in Moyers “the [G]overnment did not call any members of the so-called ‘Dark Horse’ militia to testify” at the contested trial. Moyers I, slip op. at 5. And in Oliver, even though the appellant pleaded guilty to violating the order and conspiring to violate the order:

There was no evidence introduced at trial indicating that Dark Horse advocated racial, gender, or ethnic hatred or intolerance; advocated, created, or engaged in illegal discrimination based on race, color, gender, religion, or national origin, or advocated the use of or use force or violence or unlawful means to deprive individuals of their rights under the United States Constitution or the laws of the United States, or any State, by unlawful means. Further, there was no evidence of an agreement between appellant and anyone else to participate in an organization with those aims.

Oliver, slip op. at 3. While the court notes that the DoDI was recently updated and expanded, I’m not sure that the newer version prohibits Dark Horse either. It also looks to be a mere statement of DoD policy and not a punitive regulation.

But the CCA does find sufficient evidence to sustain the Title 18 convictions in Moyers:

In our view, reasonable inferences arising from this independent evidence sufficiently corroborate the essential truth of appellant’s confession – that is, appellant’s confession that he became a member of, or affiliated with, a group which encouraged the overthrow or destruction of the Government of the United States by force or violence.

Moyers I, slip op. at 9. It’s significant that this affirmation occurrs in the context of corroboration of a confession, and it’s unclear that this conclusion is supported by the evidence exclusive of the confession. Particularly as Judge Martin writes in her dissent that she “believe[s] there is insufficient evidence of the existence of a group that advocated the overthrow of the government.” Moyers I, slip op. at 10. Judge Martin explains that:

[A]ppellant often spoke of a zombie invasion and how they should protect themselves during a zombie invasion and the discussion of zombies was fairly prevalent.

Moyers I, slip op. at 12. Judge Martin then goes even further, noting the requirements for “the existence of a group that advocated the overthrow of the government” and for “a call to forcible action for the accomplishment of immediate or future overthrow, in contrast to the teaching of a mere abstract doctrine favoring that end.” Moyers I, slip op. at 12 (marks omitted) (quoting Scales v. United States, 367 U.S. 203, 231 (1961)). She finds that in this case:

[A]ny plan to overthrow the Government was conditional and insufficient to demonstrate “advocacy of action,” that is required to meet the strict standards for the adequacy of proof. Scales, 367 U.S. at 232. In his confession, appellant stated the group would fight alongside the military, “if the government goes corrupt” and would act “if need be in the future.” Appellant stated there were no specific plans, he provided no indication of teaching or training in support of the Dark Horse objectives, and no funding for the group. Instead, appellant likened the group’s mission to a contingency.

Moyers I, slip op. at 13. Judge Martin also describes SPC Moyers as “young, not particularly sophisticated, and did not have a high GT score.” Moyers I, slip op. at 14. She adds:

[I]t is important to note that 18 U.S.C. § 2385 is a twenty-year offense that should be reserved for individuals who engage in treason or subversive acts that threaten the government. The evidence in this case demonstrated that while appellant was naïve and intemperate, he did not display behavior that gave rise to a credible threat. The Dark Horse documents are filled with fantastical elements mixed in with youthful rantings. The government failed to corroborate key portions of appellant’s statement, and failed to produce one member of the alleged Dark Horse militia to testify to the group’s purpose and teachings. Appellant’s conduct was certainly ill-advised, but simply did not rise to the level that warrants the severity of this charge.

Moyers I, slip op. at 14. Accordingly, Judge Martin would reverse the conviction for violation of § 2385 and order a sentence rehearing.

Finally, Judge Martin provides the only substantive discussion of the § 2387 charge:

While the evidence was not sufficient to demonstrate appellant belonged to a group which encouraged the overthrow or destruction of the Government of the United States by force or violence in violation of 18 U.S.C. § 2685, appellant’s confession was sufficiently corroborated to show appellant advised, counseled, and urged disloyalty and mutiny by members of the military forces of the United States. Testimony by Mrs. KR revealed appellant approached other soldiers with the idea of a militia and distributed patches. Private First Class JL corroborated that appellant attempted to recruit him and offered him the position of lieutenant in his group. This evidence, combined with the computer and physical evidence seized by the Secret Service, along with appellant’s confession, is legally and factually sufficient to prove appellant violated of 18 U.S.C. § 2387.

Moyers I, slip op. at 15.

Knowing only the facts as presented in these unpublished appellate decisions, and not seeing what was found on SPC Moyers’ computer, my gut tells me that even the § 2387 conviction has problems. Judge Martin’s discussion of SPC Moyers’ youth and naivete, his prepping for a zombie invasion, and the fact that an apparently key purpose of Dark Horse was to support and defend the Constitution, makes me think that SPC Moyers was just a kid with too much time on his hands and an overzealous prosecutor blew his fantasy way out of proportion. But again, there’s a limited record in the opinions.

That said, considering that PFC Oliver’s guilty pleas were reversed entirely while all of SPC Moyers’ sentence was affirmed, I’m reminded of a question I asked back in March: Is the Army CCA treating contested cases differently?

Opinion Analysis: United States v. Vazquez, No. 12-5002/AF

Whether you consider “military due process” to be more like a bear or a zombie, CAAF’s opinion in United States v. Vazquez, No. 12-5002/AF, 72 M.J. 13 (C.A.A.F. March 4, 2013) (CAAFlog case page) (link to slip op.), makes it clear that there is no such animal:

the AFCCA mistakenly relied on the concept of “military due process,” an amorphous concept as used by the AFCCA that appears to suggest that servicemembers enjoy due process protections above and beyond the panoply of rights provided to them by the plain text of the Constitution, the UCMJ, and the MCM. They do not.

Vazquez, slip op. at 15. Judge Ryan writes for the majority, with Chief Judge Baker and Judge Stucky each writing separate concurring opinions.

The case involves a general court-martial conviction for aggravated sexual contact with a child under the age of 12. The alleged victim (who was 4 or 5 at the time of trial) testified by remote means during the trial, and four other government witnesses also testified, before one of the members realized that the father, whom he had seen in the witness waiting area, was one of his subordinates in the rating chain. The member was excused, but this reduced the panel to four members; below the quorum of five required for a general court-martial. Five additional members were detailed by the Convening Authority and, after voir dire, two were added to the panel. A verbatim transcript of the proceedings up to that point was produced and read to the two new members (in accordance with Rule for Courts-Martial 805(d)(1)).

There was no objection from the defense, but in a published opinion the Air Force CCA set aside the findings and dismissed the charge. United States v. Vazquez, 71 M.J. 543 (A.F.C.C.A. 2012) (Vazquez I). The court’s action was predicated on it finding “a violation of the appellant’s military due process rights” which the court found “per se prejudicial and mandate reversal of the appellant’s conviction.” Vazquez I, 71 M.J. at 552 (emphasis added).

Not so fast, says Judge Ryan:

The AFCCA was required, given the absence of any objection at trial, to conduct plain error analysis and identify the specific prejudice to a substantial right of Appellee. Its determination that reversal was required because “military due process” was violated, without more, was, quite simply, incorrect.

Vazquez, slip op. at 7-8. Judge Ryan then begins a plain-error analysis of whether the procedures in Article 29(b) and Rule for Courts-Martial 805(d)(1) are unconstitutional as-applied to the Appellee. She finds that they are not, and that the military judge did not err, because:

First, the AFCCA relied on the concept of “military due process,” and there is no such thing. Slip op. at 15.

Second, Congress specifically authorized the procedure used in this case, and while the military judge had numerous options available at trial (such as recalling witnesses or declaring a mistrial), “Appellee’s acquiescence and complicity in every aspect of the procedures used did not create a record upon which to support an as-applied challenge. Nor did they afford the military judge either a reason to declare a mistrial or a reason or opportunity to craft alternative procedures short of a mistrial, such as recalling witnesses.” Slip op. at 16.

Third, “Appellee has further failed to show, either at trial or before this Court, how the members in his case were either actually unfair or appeared to be unfair.” Slip op. at 17. Moreover, the AFCCA’s conclusion that the right to a “‘jury’ . . . must include, at a minimum, having the same jury present for the entire trial” (Slip op. at 18 (quoting Vazquez I, 71 M.J. at 549)) is “directly contrary to Article 29(b), UCMJ . . . [and] the AFCCA provides no relevant authority in support of its bald assertions and fails to explain how Article 29(b), UCMJ, could even be facially constitutional if either of their assertions was correct.” Slip op. at 18.

Fourth, the concerns of the Confrontation Clause were adequately addressed by the procedure employed at trial, and Judge Ryan writes that “we note that absent a defense objection.” Slip op. 20. This is a recurring theme of the opinion.

Finally, perhaps as an emphasis to this theme, she concludes:

While a case could exist where Article 29(b), UCMJ, would be unconstitutional as applied, Appellee has not met the burden of showing that it is his case.

Judge Ryan’s analysis relies heavily on the Supreme Court’s highly-deferential consideration of the statutory scheme created by Congress for military judges (who were challenged in part due to the lack of fixed terms of appointment) in Weiss v. United States, 510 U.S. 163 (1994). “In this context, the Supreme Court held that a petitioner’s rights were violated only if ‘the factors militating in favor of [the petitioner’s interest] are so extraordinarily weighty as to overcome the balance struck by Congress.'” Vazquez II, slip op. at 13 (quoting Weiss, 510 U.S. at 177-78). A footnote further explains that “absent an argument that the statutory scheme is facially unconstitutional, or an accused demonstrating that it is unconstitutional as applied to him, we presume that the statutory scheme established by Congress and implemented by the President constitutes both the parameters of what process is due and a fair trial in the military context.” Vazquez II, slip op at 13 N.3.

The concurring opinions take no issue with this analysis, making the words “military due process” a big red flag for practitioners, and setting a high bar for future challenges to the procedures for handing replacement members.

Chief Judge Baker’s concurring opinion discusses his conclusion that the military judge did err by failing to inquire if the parties wanted a mistrial. Specifically, he finds that the military judge should have presented the parties with three options:

In my view, the military judge in this trial had a duty to inquire of the parties whether they wanted to proceed with a mistrial, recall the Government witnesses who had already testified, or proceed with the application of R.C.M. 805(d) and Article 29, UCMJ.

Baker, C.J. con. op. at 4. He sees this error as forfeited (by the failure of the defense to object), tests for plain error, and finds that “Appellee has failed to carry this burden for the same reasons the record fails to establish a violation of his right to a fair trial.” Id. at 6.

Judge Stucky’s concurring opinion makes “no disagreement whatsoever with the majority concerning the merits of this case.” Stucky, J. con. op. at 1. But he finds that the Appellee waived this issue:

In this case, the military judge offered Appellee several opportunities to object to the procedure for replacing court members and reading a transcript of the previously given testimony to the new members. Appellee did not merely forfeit this issue by not objecting, such that we would apply plain error; he affirmatively declined to object to any aspect of the procedure. Under these circumstances, I conclude he waived appellate review of this issue.

Id. at 2.

For those who (used to) use the term “military due process,” Vazquez is a seminal opinion. For the rest of us, its just business as usual.

Case Links:
AFCCA oral argument audio
AFCCA opinion (published) (corrected opinion)
Blog post: Significant published AFCCA decision
AFCCA order denying habeas relief
Blog post: JAG certifies two issues
Appellant’s (Government) brief
Appellee’s brief
Appellant’s reply brief
Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: In the CAAF
Blog post: U.S. v. Vazquez smashes a zombie’s skull
Blog post: Opinion analysis

U.S. v. Vazquez smashes a zombie’s skull

We’ve previously reviewed how to kill a zombie:  with a sharp blow to the head.  Until last year, it wouldn’t have even occurred to us that there was a military due process zombie that needed killing; no such zombie had been seen lurching about since bell bottoms were in style and Starsky and Hutch were driving around in their striped Torino.  Then came Untied States v. Vazquez, 71 M.J. 543 (A.F. Ct. Crim. App. 2012), and it was as if zombie Paul Michael Glaser was back in the driver’s seat.  But today’s Vazquez opinion to bludgeoned the zombie’s noggin:

AFCCA mistakenly relied on the concept of “military due process,” an amorphous concept as used by the AFCCA that appears to suggest that servicemembers enjoy due process protections above and beyond the panoply of rights provided to them by the plain text of the Constitution, the UCMJ, and the MCM. They do not.

Vazquez, No. 12-5002/AF, slip op. at 15.  Thwack!  There is no freestanding concept of miltary due process that allows judges to create rights not established by the Constitution, a statute, or a regulation.  Kabong!  One dead zombie legal theory.  I don’t think it will be getting up again.

End of CAAF’s term delayed by end of pregnancy term

As noted yesterday, CAAF’s oral argument in United States v. Martinez, No. 11-0167/AR, was postponed due to the arrived of a newborn for one of the counsel in the case.  The argument has been rescheduled for 1100 on Tuesday, 24 May.  I hope that the counsel will have recovered from his sleep-deprived state by then; I felt like a zombie for at least the first couple of months after my daughter was born.

So today’s End of Term reception at CAAF didn’t mark the end of CAAF’s term, but did mark the end of a pregnancy term. 

I believe that the End of Term reception traces its roots to BGen Kevin H. Winters, USMC (Ret.), who hosted a CAAF End of Term reception at the Navy Yard upon what was scheduled to be the end of oral argument season in CAAF’s 2002-2003 term.  And as occurred this year, CAAF ended up scheduling another oral argument after the End of Term reception.  History repeats itself.

“A long tradition of according leniency to veterans”

Today the Supreme Court granted a habeas petition for relief from a death sentence in Porter v. McCollum (per curiam opinion available here). George Porter, who murdered his ex-girlfriend and her boyfriend, argued that his defense counsel was ineffective when he failed to present certain evidence, including evidence relating to Porter’s military service, during sentencing.

During a post-conviction relief evidentiary hearing, Lieutenant Colonel Sherman Pratt, USA, testified extensively about Porter’s military history:

To escape his horrible family life, Porter enlisted in the Army at age 17 and fought in the Korean War. His company commander, Lieutenant Colonel Sherman Pratt, testified at Porter’s postconviction hearing. Porter was with the 2d Division, which had advanced above the 38th parallel to Kunu-ri when it was attacked by Chinese forces. Porter suffered a gunshot wound to the leg during the advance but was with the unit for the battle at Kunu-ri. While the Eighth Army was withdrawing, the 2d Division was ordered to hold off the Chinese advance, enabling the bulk of the Eighth Army to live to fight another day. As Colonel Pratt described it, the unit “went into position there in bitter cold night, terribly worn out, terriblyweary, almost like zombies because we had been in constant—for five days we had been in constant contact with the enemy fighting our way to the rear, little or no sleep, little or no food, literally as I say zombies.” The next morning, the unit engaged in a “fierce hand-to-hand fight with the Chinese” and later that day received permission to withdraw, making Porter’s regiment the last unit of the Eighth Army to withdraw.

Less than three months later, Porter fought in a second battle, at Chip’yong-ni. His regiment was cut off from the rest of the Eighth Army and defended itself for two daysand two nights under constant fire. After the enemy broke through the perimeter and overtook defensive positions on high ground, Porter’s company was charged with retaking those positions. In the charge up the hill, the soldiers “were under direct open fire of the enemy forces on top of the hill. They immediately came under mortar, artillery, machine gun, and every other kind of fire you can imagineand they were just dropping like flies as they went along.” Id., at 150. Porter’s company lost all three of its platoon sergeants, and almost all of the officers were wounded. Porter was again wounded and his company sustained the heaviest losses of any troops in the battle, with more than 50% casualties. Colonel Pratt testified that these battles were “very trying, horrifying experiences,” particularly forPorter’s company at Chip’yong-ni. Id., at 152. Porter’s unit was awarded the Presidential Unit Citation for the engagement at Chip’yong-ni, and Porter individuallyreceived two Purple Hearts and the Combat Infantryman Badge, along with other decorations.
Colonel Pratt testified that Porter went absent without leave (AWOL) for two periods while in Korea. He ex-plained that this was not uncommon, as soldiers some-times became disoriented and separated from the unit,and that the commander had decided not to impose any punishment for the absences. In Colonel Pratt’s experi-ence, an “awful lot of [veterans] come back nerthe enemy fighting our way to the rear, little or no sleep, little or no food, literally as I say zombies.” The next morning, the unit engaged in a “fiercehand-to-hand fight with the Chinese” and later that day received permission to withdraw, making Porter’s regi-ment the last unit of the Eighth Army to withdraw.

Less than three months later, Porter fought in a second battle, at Chip’yong-ni. His regiment was cut off from the rest of the Eighth Army and defended itself for two daysand two nights under constant fire. After the enemy broke through the perimeter and overtook defensive positions on high ground, Porter’s company was charged with retaking those positions. In the charge up the hill, the soldiers “were under direct open fire of the enemy forces on top of the hill. They immediately came under mortar, artillery, machine gun, and every other kind of fire you can imagineand they were just dropping like flies as they went along.” Porter’s company lost all three of its platoon sergeants, and almost all of the officers were wounded. Porter was again wounded and his company sustained the heaviest losses of any troops in the battle, with more than 50% casualties. Colonel Pratt testified that these battles were “very trying, horrifying experiences,” particularly forPorter’s company at Chip’yong-ni.  Porter’s unit was awarded the Presidential Unit Citation for the engagement at Chip’yong-ni, and Porter individuallyreceived two Purple Hearts and the Combat Infantryman Badge, along with other decorations.

Colonel Pratt testified that Porter went absent without leave (AWOL) for two periods while in Korea. He ex-plained that this was not uncommon, as soldiers some-times became disoriented and separated from the unit,and that the commander had decided not to impose any punishment for the absences. In Colonel Pratt’s experi-ence, an “awful lot of [veterans] come back nervouspeople mentally trying to survive the perils and hardships [of] . . . the Korean War,” particularly those who fought inthe battles he described.

When Porter returned to the United States, he went AWOL for an extended period of time. He was sentenced to six months’ imprisonment for that infraction, but he received an honorable discharge. [emphasis added -zds]. After his discharge, he suffered dreadful nightmares and would attempt to climbhis bedroom walls with knives at night. Porter’s family eventually removed all of the knives from the house. According to Porter’s brother, Porter developed a serious drinking problem and began drinking so heavily that hewould get into fights and not remember them at all.

None of this testimony, nor the testimony of an expert in neuropsychology who “concluded that Porter suffered from brain damage that could manifest in impulsive, violent behavior,” was presented during the sentencing phase of the trial. Yet the post-conviction trial judge determined that Porter was not prejudiced by counsel’s failure to present any of this testimony.

SCOTUS ruled otherwise. “Had Porter’s counsel been effective, the judge and jury would . . . have heard about (1) Porter’s heroic military service in two of the most critical—and horrific—battles of the Korean War, (2) his struggles toregain normality upon his return from war, (3) his child-hood history of physical abuse, and (4) his brain abnormality, difficulty reading and writing, and limited schooling.”

But I think the Court explained it best with this section:

Our Nation has a long tradition of according leniency to veterans in recognition of their service, especially for those who fought on the front lines as Porter did. Moreover, the relevance of Porter’s extensive combat experience is not only that he served honorably under extreme hardship and gruesome conditions, but also that the jury might find mitigating the intense stress and mental and emotional toll that combat took on Porter.

Well, let’s hope so.

Still, there’s been a lot of talk (and training) about post-combat/post-traumatic stress as a significant mitigating factor in sentencing (or even a superseding factor on the merits). Hard to imagine we won’t see more of this argument after today’s SCOTUS opinion.

CGCCA’s online opinions updated

The Court-Martial Trial Practice blog notes that the Coast Guard Court’s web site has now been updated to include the court’s 2009 opinions. (Our best guess is that the court was waiting for the Chinese New Year to start posting 2009 opinions. BTW, we are now in the Year of the Ox.)

We previously noted CGCCA’s Jonsson opinion–an extremely interesting decision setting aside an adultery conviction. We now know that it will be published.

The Coast Guard Court’s updated web site also posts a new authored opinion issued on 5 February 2009. United States v. Kasprzyk, Dkt. No. 1287 (C.G. Ct. Crim. App. Feb. 5, 2009). The opinion doesn’t make it apparent whether it will be published. The case involves fairly uncontroversial discussions of the law governing conspiracy (there need not be an express agreement) and sentence comparisons. The opinion then delivers another blow to the head of the Swiderski zombie.

Supreme Court filings focus on military death penalty system

As discussed in this highly informative piece on SCOTUSblog, lawyers for Patrick Kennedy and the Acting SG filed the briefs today that the Supreme Court requested in Kennedy v. Louisiana to address whether the Supremes should rehear the case. Of course, the Acting SG said yes and Kennedy’s lawyers said no. SCOTUSblog provides a great analysis of the implications of this for the Kennedy case itself. I’m more interested in the briefs’ treatment of military law.

Kennedy’s brief displayed unfamiliarity with the military justice system. Any number of military justice experts would have made themselves available to help Kennedy’s counsel, but it’s clear that no such assistance was accepted. Since petitioner’s counsel knew that the Acting SG’s brief would be prepared with the assistance of the DoD General Counsel’s office — and, in fact, two highly distinguished retired judge advocates had signed onto the Acting SG’s previous motion for leave to file a brief in support of rehearing before also signing onto today’s brief from the Acting SG — why wouldn’t petitioner’s team have sought out reinforcements to keep from being outgunned on the military justice flank? For whatever reason, they didn’t and it shows.

What is probably the most significant problem arises in the petitioner’s brief’s desuetude argument. The petitioner argues at one point that “[t]he military, to our knowledge, has not sought to impose the death penalty for rape in over forty years.” Petitioner’s Brief in Opposition at 3. The brief later argues, “The military last executed someone for rape in 1961, and it apparently has not even sought – let alone obtained – such a sentence since.” Id. at 7-8. Wrong. As a published CAAF decision makes clear, the Navy sought the death penalty in a court-martial of a petty officer for rape and attempted murder in 1989. United States v. Straight, 42 M.J. 244, 247 (C.A.A.F. 1995). But because the members’ finding of guilty to the death-eligible offense was not unanimous, id., death was no longer an authorized sentence after findings. Given that this information is available in a published opinion and was mentioned in a law review article published two years ago, see 189 Mil. L. Rev. 1, 13 n.45, it’s surprising that petitioner’s brief would make such a major mistake.

That large mistake is immediately followed by a smaller one. The brief states, “There are currently nine people on the military’s death row; all nine committed premeditated murder or felony murder.” Petitioner’s Brief in Opposition at 8. Again, wrong. If we are using “death row” to refer to a physical place in the United States Disciplinary Barracks, there are currently four men there. If we are using “the military’s death row” to refer metaphorically to the number of servicemembers currently under a death sentence, then the actual number is five. (One person, Kenneth Parker, is under a military death sentence but is currently confined at Camp Lejeune.) Nine is the number of servicemembers currently under death sentences plus the number of servicemembers whose death sentences have been overturned but who might still be resentenced to death. The phrase “currently . . . on the military’s death row” isn’t descriptive of that more nuanced concept. It would have been easy to provide a completely accurate and more helpful statistic: all 15 servicemembers sentenced to death under the current military death penalty system were convicted of premeditated murder, felony murder, or both. No doubt had the petitioner’s counsel consulted with a military justice expert, he or she would have steered them clear of such inaccuracies.

But wait; there’s more. The brief seems to make a fairly major mischaracterization when it contends that “[t]he President’s reaffirmation of death as a permissible punishment appears within the 800-plus-page Manual for Courts-Martial.” Petitioner’s Brief in Opposition at 9. Almost any military justice practitioner could have told petitioner’s counsel that that’s wrong. President Bush didn’t reissue the MCM in toto in September 2007 with the rape amendments interspersed among more than 900 other pages of text. Rather, he issued an Executive Order with an annex that takes up 23 MCM pages that was devoted almost entirely to the new military rape statute. Especially since Congress had expressly authorized the President to choose whether to discontinue death as an authorized punishment for rape or rape of a child, the presidentially prescribed death penalty provision wasn’t a needle in a haystack; it was a pitchfork in a hay bale.

The brief also features what seems to be an analytic lapse. The brief posits: “The important point for present purposes, however, is that this Court in Kennedy asked the right question – namely, whether petitioner is subject to the death penalty under federal law – and gave the right answer: he is not. Nothing more was, or is, required.” Petitioner’s Brief in Opposition at 7. But is that really what the Supremes do when they engage in jurisdictional nose counting? The question isn’t whether Patrick Kennedy is subject to the death penalty under, say, Maryland law; he isn’t — not only because Maryland doesn’t authorize a death sentence for rape of a child but also because Maryland has no jurisdiction over Patrick Kennedy’s offenses. So the jurisdictional nose counting process doesn’t ask how many jurisdictions can actually execute Patrick Kennedy for the particular offenses of which he was convicted; rather, it asks how many jurisdictions could execute someone who committed comparable offenses within that jurisdiction.

The brief suffers from minor problems as well, such as referring to the National Defense Authorization Act as an “appropriations bill,” id. at 9, listing Article 120 of the UCMJ as a “Federal Rule” rather than a “Statutory Provision,” id. at iv-v, and calling ¶45.f.(1) of Part IV of the MCM “Article 120(f)(1).” Id. at 3, 9 n.5. Again, had petitioner’s counsel consulted with any competent military justice litigator, those would have been cleaned up.

Finally, the brief drops a footnote advancing what seems to be an untenable argument. Footnote 5 questions “whether the President’s continuation in Article 120(f)(1) [sic] of the Manual for Courts-Martial of the possibility of punishing rape with the death penalty is sufficient to authorize such punishment. The Uniform Code of Military Justice (UCMJ) provides that a court-martial may impose capital punishment only when ‘the penalty of death [is] specifically authorized by this chapter.’ 10 U.S.C. § 818 (emphasis added). Now that the NDAA has removed any reference to the death penalty from the UCMJ’s rape provisions, the UCMJ itself no longer ‘specifically authorize[s]’ such punishment.” Id. at 9 n.5. That overlooks entirely the key provision in the National Defense Authorization Act for Fiscal Year 2006 that formed the basis for the rehearing petition. In that legislation, Congress stated:

Until the President otherwise provides pursuant to section 856 of title 10, United States Code (article 56 of the Uniform Code of Military Justice), the punishment which a court-martial may direct for an offense under section 920 of such title (article 120 of the Uniform Code of Military Justice), as amended by subsection (a), may not exceed the following limits:

(1) Subsections (a) and (b).– For an offense under subsection (a) (rape) or subsection (b) (rape of a child), death or such other punishment as a court-martial may direct.

National Defense Authorization Act for Fiscal Year 2006, § 552(b), 119 Stat. 3136, 3264 (2006).

Since the President has not provided otherwise, this express statutory authorization for the death penalty is in force. This provision isn’t trumped by Article 18; rather, to the extent that they are inconsistent the NDAA provision prevails over Article 18 because it is both the more specific and the more recent statute. See generally In re Northwest Airlines Corp., 483 F.3d 160, 168 (2d Cir. 2007).

By comparison, the Acting SG’s brief was uneventful. Its treatment of zombie statutes is a bit problematic. The SG writes that “in Coker, the plurality’s conclusion that capital punishment for the rape of an adult woman was unconstitutional accorded with Congress’s silence on the subject at that time. See 433 U.S. at 593-596.” Brief for the United States at 5. Of course, when the Supremes decided Coker v. Georgia in 1977, Article 120 of the UCMJ remained on the books with its provision that rape was punishable by death. The Acting SG attempts to escape from this inconvenient parallel to Kennedy by arguing: “In Coker, Congress was silent on the pertinent question because it had not reauthorized the death penalty for rape after this Court’s decision in Furman v. Georgia, 408 U.S. 238 (1972), which ‘invalidated most of the capital punishment statutes in this country, including the rape statutes.’ Coker, 433 U.S. at 593 (plurality opinion).” Id. at 5 n.2. He then concludes: “The Court thus has never held the death penalty unconstitutional for an offense for which Congress has authorized such punishment at the time of its decision.” Id. at 5-6. But at the time of Coker, Congress had authorized death as a punishment for rape and no court had held that Furman invalidated the military death penalty system, though Justice Blackmun had noted in his Furman dissent that the case “jeopard[izes], perhaps, . . . the death penalty provisions in various Articles of the Uniform Code of Military Justice.” Furman v. Georgia, 408 U.S. 238, 412 (1972) (Blackmun, J., dissenting). And, interestingly, the Supremes ultimately held that there was no necessity for congressional action to revive the military death penalty system post-Furman. See Loving v. United States, 517 U.S. 748 (1996).

The SG also seems to gild the lily by arguing that “Congress recently enacted legislation authorizing capital punishment for child rape by an overwhelming 374-to-41 vote in the House . . . and a voice vote in the Senate.” Brief for the United States at 6. While that is literally correct, it would be silly to suggest that 374 members of the House were endorsing Section 552(b) of the bill. It seems improbable that 374 members of the House even knew that Section 552(b) was in the bill.

The Acting SG’s brief also contains an ingenious argument that congressional legislation about the military justice system shouldn’t be excluded from jurisdictional nose-counting in part because such legislation now applies to some civilians in contingency operational areas. Id. at 7.

The next step in the case will be the filing of Louisiana’s reply brief, which is due by 1400 next Wednesday, 24 September. We’ll look at that brief once it’s filed. And then, SCOTUSblog tells us, the “Court is scheduled to consider the rehearing plea at its Conference on Monday, Sept. 29, the first of the new Term. That could mean some action might be known as early as Tuesday, Sept 30.”

Two new CCA published opinions: one dead zombie and one riddle solved

December has brought us warm weather and two new NMCCA published opinions. Both are in the LEXIS “CAAF and published CCA opinions” file, though (predictably) neither is on either NMCCA’s web site or WESTLAW.

A zombie is “killed” by a sharp blow to the head. In United States v. Tingler, __ M.J. ___, 2006 CCA LEXIS 329 (N-M. Ct. Crim. App. Dec. 14, 2006), the Navy-Marine Corps Court tries to kill the Swiderski zombie. In United States v. Swiderski, 548 F.2d 445 (2d Cir. 1977), the Second Circuit held that two individuals who jointly obtain drugs are not guilty of distribution when they transfer the drugs between the two of them for their personal use. Military courts have so marginalized Swiderski that a sharp blow to its head seems hardly necessary. But, when dealing with the undead, it pays to be safe. The Navy-Marine Corps Court observed, “The validity of the Swiderski reasoning is in considerable doubt among the federal circuits. ‘No other circuit has followed the Second Circuit in Swiderski.’ United States v. Washington, 41 F.3d 917, 920 n.2 (4th Cir. 1994).” Tingler, 2006 CCA LEXIS 329, at *12. Bash! “We hold that sharing an illegal drug between two servicemembers is distribution and not ‘personal use.’ We expressly reject Swiderski‘s applicability to drug offenses alleged under the UCMJ.” Id. Wham! “Assuming arguendo that Swiderski does apply to military courts-martial, we are confident that it does not control the appellant’s case because it is factually distinguishable . . . .” Id. at *12-*13. Pow! Okay, Judge Carver, you can stop hitting it with the shovel – I think it’s really dead now. But wait! There’s more! “Even if the Swiderski holding is inapplicable or distinguishable, can the appellant be convicted of distribution of cocaine by sharing cocaine with FA Robbins after FA Robbins originally provided the cocaine to the appellant?” Id. at *18. Of course he can. Finally, NMCCA declined to give relief even though it had to send the case back to the CA for a new action TWICE, because the first time it was sent back to the CA, his action contained the same ambiguity as the original action. Blam! Wow, I hope that Moreno doesn’t turn into a zombie!

In Unites States v. Pflueger, __ M.J. ___, 2006 CCA LEXIS 328 (N-M. Ct. Crim. App. Dec. 5, 2006), NMCCA solves that age-old riddle: is there a practical difference between remission of a BCD and appellate disapproval of a BCD? NMCCA tells us that the answer is yes, with the latter being more favorable to the accused. (NMCCA’s solving of this riddle is bad news for the Columbus Clipper, who had planned to pass many a Kabul night by pondering this very question. Sorry, Marcus, looks like you’ll have to buy a few extra Sudoku books.) CAAF had remanded Pflueger to NMCCA to answer a series of questions concerning the practical effect of a remitted BCD. United States v. Pflueger, 61 M.J. 272 (C.A.A.F. 2005) (summary disposition). NMCCA explained that “[b]ecause the punitive discharge remained part of the adjudged and approved sentence after it was remitted, it continued to qualify the appellant for automatic forfeitures until it was disapproved in our decision of 30 July 2004.” Pflueger, 2006 CCA LEXIS 328, at *5-*6. The disapproval of the BCD, on the other hand, entitled the accused “to repayment of all amounts that were taken from his pay as a result of automatic forfeitures.” Id. at *8. Accordingly, NMCCA concluded, an appellate decision declining to affirm a BCD that has already been automatically remitted provides meaningful relief to the accused. Kablouie! Whoops — I thought I saw a zombie.

–Dwight Sullivan

We spend $69.99 for a bad book about CAAF nominees’ confirmations so you don’t have to

On this day when the Senate Armed Services Committee unanimously approved the two CAAF nominations, what should I find waiting for me when I arrived home from work? Why, my six-year-old daughter asking me to pretend to be a zombie and eat her brain. But, more apropos of this post, an Amazon box containing Craig Peter Cummings’ Is anyone listening? An analysis of public opinion of the Supreme Court, diversity in the Courts of Appeals, and confirmations to the military’s highest court (2005). See “Black Friday shopping alert,” 24 Nov, available at

The relevant part of the book, which is essentially Cummings’ republished doctoral dissertation from Columbia, runs from pages 79-126. I’ve now read that entire section and the most striking lesson I learned is that one can earn a Ph.D. from a prestigious Ivy League institution by producing remarkably slipshod work. The paper suffers from basic factual errors, erroneous citations, and improper usage. Plus, entire sections are derivative of other authors’ work (principally Jonathan Lurie’s), poorly attributed, and overly reliant on secondary rather than primary sources. Here are just a few examples from a much larger pool:

Page 79: “Unlike all other federal courts which are governed under Article III of the Constitution, this court [CAAF] is governed under Article I.” Well, other than the United States Tax Court, which is located about a block away from CAAF’s courthouse. Oh, Bankruptcy Courts are also Article I courts. Hhhmm, I almost forgot the U.S. Court of Federal Claims. Oh, right, there’s also the U.S. Court of Appeals for Veterans Claims. See John Stewart et al., America (The Book) 85 (2004) (“U.S. Court of Veterans Affairs [sic] Looking for the world’s most depressing court experience? You’ve found it!”). Oh, and who can forget the U.S. district courts for the districts of Guam, the Virgin Islands, and the Northern Mariana Islands? I could go on, but let’s just say that Cummings drastically undercounted the number of Article I courts.

Page 91: “The first recommendation was to change the status of the court from an Article III court to an Article I court . . . .” Other way around.

Page 93: “The 146 articles of the UCMJ . . . .” While the UCMJ ends at Article 146, there are actually, by my count, 159 articles. Cummings apparently overlooked such provisions as Article 106a (espionage), Article 112a (drug offenses), and Article 123a (bad check offenses).

Page 101: “The USCAAF automatically reviews all death penalty cases [and] cases affecting flag-level officers (General or Admiral) . . . .” That latter provision was eliminated from Article 67 in 1983. See Military Justice Act of 1983, Pub. L. No. 98-209, §§ 5(e), 7(c), 97 Stat. 1399, 1402.

Page 101: “As in federal courts of appeals, the USCAAF chooses, upon petition for review from the accused service member, the remaining cases it will consider.” While the wording is a bit abstruse, it seems to be suggesting (erroneously, of course) that the geographic courts of appeals exercise discretionary rather than mandatory jurisdiction.

I know Cummings isn’t a lawyer, but if you are going to write a doctoral dissertation on a legal subject, you should do considerably better than this. It doesn’t look like he ever had a lawyer read it before it was published.

The book does contain some original research concerning the pace of CMA/CAAF confirmations and compares those with rates for confirmation of Article III judges and Article II political appointees.

I’m a bit queasy about accepting Cummings’ numbers. At one point he writes, “[O]nly eighteen judges have served on this court since it was established in 1951.” 81-82. Later he writes, “All twenty judges nominated to the USCAAF were confirmed.” 113. By my count, the actual number of CMA/CAAF judges splits the difference: 19. Cummings seems to get to 20 on page 113 by counting Judge Darden twice. But I don’t believe Judge Darden was nominated more than once. Professor Lurie seems to support my recollection. Jonathan Lurie, Pursuing Military Justice 219 (1998) (“Several months before the Calley decision was announced, Judge Darden had written to Nixon expressing his desire to resign from USCMA. He had served for five years of a term – originally Kilday’s – to end in May 1976.”). So Cummings seems to have gotten to 20 through an erroneous double counting. He must have stopped at 18 earlier by overlooking someone. But how did he fail to notice that he used two different numbers for the same thing within 31 pages of each other? It’s true that I’ve never read a dissertation before (not even my brother’s, though he does have a Ph.D.), but I always assumed they were considerably better executed than this.

Just for the heck of it, let’s suspend disbelief and look at Cummings’ numbers and his conclusions.

“On average, the time from nomination to confirmation in the regional federal circuit courts takes 92.37 days, over twice as long as in the USCAAF where the average time is 44.35 days.” 114.

“This significant difference indicates a far less politicized process for nominees to the USCAAF. . . . [N]ominations to the USCAAF do not create political ‘turf wars’ as do the regional courts, where home-state senators are especially attentive to the ideological leaning of the judicial nominee.” Id.

“[C]onfirmations to the USCAAF take longer than do confirmations to other positions in [the] Defense Department.” 117.

The delay in confirmations has gotten longer over time. 119. [But it looks like Lance-Judges Stucky and Ryan will be confirmed in fewer than 25 days]

Nominations that would tilt CMA’s/CAAF’s balance away from the party that controls the Senate “do not seem to increase confirmation delay, which may suggest that senators are not attentive to the potential shift in ideology in the USCAAF. . . . This finding again points to a less politicized process for judges to the USCAAF.” 119

“Yet, confirmation to this court requires more time than do nominations to all other appointed positions within Defense, which suggests that these judges do receive a more careful examination.” 120.

“The negative interpretation of these findings is that the Senate simply doesn’t care a great deal about who gets selected to this court. . . . A more optimistic view of the findings is that the judges nominated to this court are of the highest caliber, and that the absence of partisan conflict reflects the apolitical nature of military justice. Indeed, the judges of this court are not setting policy on controversial social issues, such as affirmative action, abortion, or capital punishment.” 120-21. Apparently Cummings hasn’t looked at CAAF’s docket recently.

It’s also strange that in a political science dissertation that expressly discusses partisan politics, Cummings never mentions UCMJ article 142(b)(3)’s political balance requirement. Ockham’s Razor would suggest that he doesn’t mention it because he never read the statutes that provide CAAF’s basic charter.

Finally, I actually laughed out loud when I came to this howler in Cummings’ conclusion: “Further research is necessary to estimate whether this ‘rubber-stamping’ is having negative effects on military justice and morale in the armed forces.” I can just see it – one Marine in a fighting hole in Anbar province turns to his buddy and says, “Boy is it upsetting that the Senate Armed Services Committee didn’t give Stucky and Ryan as thorough a grilling as Schumer gave Alito.” Come to think of it, maybe the brain-eating zombie was apropos of this post after all.

–Dwight Sullivan