Interesting NPR piece on the Invisible War’s Myla Haider here. 

The response to transparency and legality concerns with the US drone policy appears to be more symbolic than real, so says Eric Schmitt at the NYT here.

7 months confinement and a BCD in latest Lackland instructor case. This instructor had consensual sex with two recruits and lied to investigators according to the report out of San Antonio here.

[UPDATE]  I forgot to add yesterday’s news about the military judge, COL Tara Osborn, rejecting MAJ Nidal Hasan’s attempt to plead guilty . . . because one of the not so bright provisions of the [UCMJ] prohibits it. LA Times report here.  COL Osborn also appears to have ruled on several “standard” capital court-martial motions. [My apologies for earlier pinning all the blame for the SNAFU in capital pleas on the Executive Branch; Congress created the mess in UCMJ, Art. 45(b).]

The Ft. Hood PAO announced the agenda for today’s hearing in the MAJ Hasan court-martial:

Motions expected for argument include a defense request to change venue, a defense request to change venire (venire are the individuals that make up the potential panel members) and several defense requests concerning the procedural rules that apply during sentencing proceedings.

Results later tonight.

Bales Arraignment Tomorrow

Here is a link to the TN-T story on the SSGT Robert Bales arraignment tomorrow.  Additional coverage from Army Time here reporting that the capital court-martial for the alleged premeditated murder of 16 Afghan civilians may hear arguments on motions to prohibit SSGT Bales from presenting mental health evidence because Bales’ c0unsel has refused to allow him to submit to an RCM 706 mental health board.  From Army Times:

[Bales' defense counsel John Henry] Browne also said the judge has told attorneys on both sides to be ready to argue about whether the defense will be allowed to present any sort of mental-health defense, given that Bales has refused to participate in a “sanity board,” an Army review aimed at determining his mental state.

Browne had objected to the conditions for the sanity board, saying the Army would not let Bales have an attorney present and would not record the examination.

“The judge is trying to get us to deal with critical motions at the arraignment,” Browne said. “We need to slow this railroad down.”

Marine Court-Martial For Corpse Incident

Here is a Yahoo news story on proceedings in the court-martial of SSgt Edward Deptola.

Staff Sgt. Edward W. Deptola is accused of the desecration of remains and posing for unofficial photographs with human casualties. He also is accused of failing to properly supervise junior Marines and not reporting the misconduct.

Deptola and another Marine based at Camp LeJeune, N.C., were charged last year after video surfaced showing four Marines in full combat gear urinating on the bodies of three dead Afghans in July 2011. In the video, one of the Marines looked down at the bodies and quipped, “Have a good day, buddy.”

Staff Sgt. Joseph W. Chamblin pleaded guilty to similar charges last month. Chamblin was sentenced to 30 days confinement, reduced in rank, fined and ordered to forfeit part of his pay for six months. Three other Marines were given administrative punishments for their roles in the matter.

This is a few days old, but on 8 January 2013, the Supreme Court held in Ryan v. Valencia Gonzales that a federal habeas petitioner is not entitled to stay of his petition when he is found incompetent and unable to communicate with his counsel. Both the Ninth and Sixth Circuits had found statutory rights (based on different statutory sections) to be competent and to be able to assist their counsel on their appeals, even where the appeals were entirely record-based. The Supreme Court disagreed, noting that the right to be competent during trial flows from Due Process under the Fifth Amendment and not the right to counsel under the Sixth Amendment. Therefore, the right to federally funded counsel in capital cases for federal habeas petitioners does not imply a right to competence and the Supreme Court did not find such a right in the habeas statutes.

Bales Capital Referral
Many more reports on the Bales capital referral. Here (Reuters) and here (NPR Blog) are a few. The Reuters story has a quote from the defense counsel taking issue with the capital referral because their client has an “unspecified” mental health issue. This could be a result of the reporting, but if the mental health issue is unspecified how could the CA rely on that to avoid referring crimes that appear to the rest of us to be capital offenses? Here is a link to the charge sheet and CA announcement.

Sinclair Referral
The happiest guy on the planet about the Bales referral has got to be General Sinclair, whose own referral dropped to page 3 as a result of the Bales case. Here is some additional coverage at Navy Times.

Hits Keep on Coming in Sexual Assault Stats for Academies
AP reports (via Navy Times) here that a recent DoD report shows reported sexual assaults at the nation’s service academies up by 23% in 2012. Whether that is because of more reporting or more assaults is not known. The AP story says that most of the reports were the confidential variety that did not result in law enforcement action.

Here is the AP story via WaPo.  H/t GGH

An alert reader called our attention to this Fort Hood press release announcing that COL Tara Osborn has scheduled an Article 39(a) session in MAJ Hasan’s case for 18 December.

It’s posted on CAAF’s website here.  Hasan v. Gross, __ M.J. __, Nos. 13-8011/13-8012/AR (C.A.A.F. Dec. 3, 2012) (per curiam).  Finding that a reasonable person would doubt the military judge’s impartiality, CAAF unanimously ordered the military judge’s removal from the case due to the appearance of bias.  As a result, CAAF vacated Judge Gross’s order to forcibly shave MAJ Hasan, as well as the six contempt citations.

CAAF explains that “the command, and not the military judge, has the primary responsibility for the enforcement of grooming standards.  . . . A military judge’s contempt authority is directed toward control of the courtroom.  Although the military judge here stated that Appellant’s beard was a ‘disruption,’ there was insufficient evidence on this record to demonstrate that Appellant’s beard materially interfered with the proceedings.”  CAAF concluded that “taken together, the decision to remove Appellant from the courtroom, the contempt citations, and the decision to order Appellant’s forcible shaving in the absence of any command action to do the same, could lead an objective observer to conclude that the military judge was not impartial towards Appellant.”

CAAF ordered the “appropriate authority” to “deail a new military judge in this case.”

Here is Reuters coverage of the SGT JohnRussell arraignment.  Russell did not enter a plea.  His capital court-martial in the shooting deaths of fellow servicemembers outside a combat stress clinic in Baghdad will proceed this winter at Joint Base Lewis-McCord.  Russell is expected to raise defenses based on PTSD and other mental health issues he was facing at thew time of the killings.

Bales hearing retrospective coverage, here (WaPo) and the TN-T (stealing our line) here.

Hurricane Sandy and scheduling conflicts means the lights are off in Camp Justice military commission hearing rooms until Jan. 2013.  See Miami Herald (via Kansas City Star) report here.

DOJ filed a civil false claims suit over Iraq reconstruction costs.  See DOJ press release here and Reuters report here.

Lots o’ military justice news, but not a lot o’ No Man time.  Alright, here we go.  The short, short version. (Do you? Yes. Do you? Yes. Good. You’re married. Kiss her!)

• SSGT Bales hearing updates:  Here (KING 5 News, the accused’s wife’s perspective), here (Seattle Times), here (LA Times).
• SGT Hurst court-martial in PVT Chen suicide:  Here and here (Fayetteville Observer).
• Brig. Gen. Jeffrey A. Sinclair Art. 32 hearing:  Here (Marine Corps Times) and here (ABC News)
• Lt. Col. James H. Wilkerson, former Aviano IG, sentenced in his court-martial:  Here (Air Force Times).
• MAJ Nidal Hasan and Ft. Hood shooting victims:  Here (Reuters, victims sue DoD) and here (AP via FoxNews).

Families of Victims of Ft. Hood Shootings Talk About Delays
As CAAF now reviews whether MAJ Hasan must shave his beard when standing trial for the Ft. Hood shooting spree, families are now 3 years out from the tragedy without any resolution. Reuters report here.

Bales Case Art. 32 Hearing
SSGT Robert Bales will face an Art. 32 hearing over the next 2 weeks at Joint Base Lewis McCord. Many reports on the facts behind the 16 premeditated murder charges and numerous other charges related to the shooting spree in Afghanistan, here (Chicago Tribune) and here (Seattle Times).

BGEN Sinclair to Face Hearing Today
Here is AP’s (via USAToday) version of the scant facts available about the Art. 32 hearing of former 82nd Airborne Deputy Commander BGEN Jeffrey Sinclair. Charges include forcible sodomy and possession of pornography in theater [corrected].

Here is Monday’s Daily Journal entry noting the stay in MAJ Nidal Hasan’s case has been granted:

INTERLOCUTORY ORDERS

No. 13-8009/AR. Nidal M. HASAN, Appellant v. Gregory GROSS, Colonel, U.S. Army, Military Judge, Appellee. CCA 20120876. On consideration of Appellant’s motion to stay proceedings, it is ordered that said motion is hereby granted pending further order of the Court.

Here and here is some of the news coverage of the stay and proceedings to come.

The Army Court of Criminal Appeals today affirmed a military judge’s order that MAJ Nidal Hasan can be forcibly shaved before appearing in a military courtroom.  Here is the en banc, but unpublished, opinion of the court in Hasan v. United States et al, Docket Nos. Army Misc 20120876 and 20120877 (A. Ct. Crim. App. Oct. 18, 2012):

In conclusion, we hold that petitioner is not entitled to extraordinary relief in the nature of a writ of prohibition. The military judge did not commit clear error in determining petitioner’s desire to appear unshaven in court was not based on a sincerely held religious belief at this time. Further, even if petitioner had succeeded in demonstrating his wearing a beard in court was based on his sincere religious beliefs, compelling interests justify the military judge’s order and no lesser restrictive means are available to accomplish these interests. Accordingly, the Petition for Extraordinary Relief in the Nature of a Writ of Prohibition and the Petition for Extraordinary Relief in the Nature of a Writ of Mandamus are DENIED

Four judges concurred in the opinion of Senior Judge Yob (Cook, Gallagher, Haight, and Martin), three judges took no part in the decision (Ayres, Aldykiewicz, and Kraus) and two judges dissented (Kern and Burton). 

The dissent would have actually disqualified the military judge for wading into this mess, writing:

In the military justice system, the military judge wears a uniform and holds authority as a leader as well as a judge. He must remain keenly aware of not only the authorities he holds, but how orders executing those authorities are viewed and options available to him, always keeping in mind perceptions regarding his impartiality. The military judge utilized his contempt authority, which was a proper method to try to compel petitioner to comply with uniform requirements. When those attempts failed, he not only disregarded an avenue customarily used in enforcing uniform requirements-utilizing the chain of command to enforce compliance with uniform standards-but he also issued his order for the  forcible shaving at the behest of the government. Like removal, such an invasive order by the military judge should only be utilized if there is a showing of material interference with the conduct of the proceedings. . . .

Without compelling the government to act, the military judge’s decision to order the forced shaving at the government’s request was inappropriate as it compromised his impartiality. As such, I would grant petitioner’s writ of prohibition, invalidating the military judge’s order, and also disqualify the military judge from further participation in the proceedings because he took an action that reasonably put into question his impartiality.

[Sorry for earlier versions, technical difficulties]

H/t KAG

In Parker, NMCCA found the evidence supporting one of the two premeditated murder convictions to be factually insufficient and reassessed the sentence.  CAAF’s scope of review over such determinations is quite narrow.  While CAAF can exercise review authority over a CCA’s factual sufficiency determination to ensure that it was based on a “correct view of the law,”  United States v. Nerad, 69 M.J. 138, 147 (C.A.A.F. 2010), in Parker, NMCCA’s holding was a plain assessment of the evidence as insufficient.  There doesn’t appear to be any underlying legal issue that the court resolved to make that decision; rather, it was performing a jury-type function, just as Congress contemplated in Article 66(c).  Accordingly, there appears to be nothing for CAAF to review in the factual sufficiency determination.

CAAF’s review of a CCA’s reassessment of a sentence is also narrowly constrained.  CAAF reviews “a sentence reassessment by a Court of Criminal Appeals for obvious miscarriages of justice or abuses of discretion.”  United States v. Harrow, 65 M.J. 190, 206 (C.A.A.F. 2007).  NMCCA’s reassessment in Parker doesn’t appear to be vulnerable under that standard.  So it seems unlikely that the Judge Advocate General of the Navy would certify any issue from the case to CAAF and even more unlikely that CAAF would reverse even if she did.

So NMCCA’s ruling in Parker is probably the final word in the case.  If so, the decision will take the last Marine off of military death row at the USDB’s Special Housing Unit (SHU).  Five men will remain– four Soldiers and one Airman.  The last time the Marine Corps carried out an execution was in 1817.  No member of the Department of the Navy has been executed since 1849 when two Sailors from EWING were hanged for mutiny aboard one of the ship’s longboats.

Counting Parker, 9 of the 11 (81.8%) military death penalty cases that have completed direct appeal have been reversed.

Opinion here.  Absent any further developments in the case, this will reduce the number of servicemembers on military death row to five.

Senior Judge Maksym wrote for a unanimous panel.

NMCCA held, inter alia, that “the trial judge erred to the material prejudice of the appellant’s substantial rights in failing to sever the LCpl Page and LCpl James killings into two trials or, in the alternative, by failing to instruct the members on spillover and its inherent dangers.”

NMCCA also concluded that it wasn’t convinced beyond a reasonable doubt that LCpl Parker murdered LCpl James.  The court explained, “without more, the circumstantial evidence placing the appellant with LCpl Walker that night cannot support a determination that the appellant killed LCpl James beyond a reasonable doubt.”

NMCCA also held that the military judge erred in his admission of 404(b) evidence that LCpl Parker had bragged of making a drive-by shooting at a passing car in Philadelphia with an AK-47.  NMCCA concluded that this error was prejudicial as to the offenses involving LCpl James as a victim.

NMCCA also found that convictions for Article 134 offenses that didn’t allege a terminal element must be reversed pursuant to Fosler.  In this section of the opinion, NMCCA notes its handling of the Article 134 convictions from Parker’s companion case of United States v. Walker, 71 M.J. 523 (N-M. Ct. Crim. App. 2012), but doesn’t appear to note that that portion of its opinion was reversed by CAAF.  United States v. Walker, __ M.J. __, No. 12-0410/MC (C.A.A.F. Jul. 16, 2012).  But NMCCA nevertheless finds plain error in LCpl Parker’s conviction of Article 134 specifications that failed to allege the terminal element.

NMCCA concluded its opinion by setting aside the death sentence and affiming a sentence of confinement for life, total forfeiture of pay and allowances, reduction to E-1, and a DD.

As NMCCA notes in its opinion, it took the court more than 19 years to decide LCpl Parker’s initial direct appeal.