CAAFlog » Court-Martial News

The long-running court-martial prosecution of Marine Sergeant Hutchins, for his participation in a 2006 kidnap-murder conspiracy in Iraq that is colloquially known as the Hamdania incident, will be reviewed by CAAF for a third time.

Hutchins was first convicted in 2007 of conspiracy, false official statement, unpremeditated murder, and larceny. He was sentenced to reduction to E-1, a reprimand, confinement for 15 years, and a dishonorable discharge. The convening authority disapproved the reprimand and all confinement in excess of 11 years.

On appeal, the Navy-Marine Corps reversed Hutchins’ convictions because it found that Hutchins’ military defense counsel was improperly released from the case upon his end of active duty service (decision analyzed here). Hutchins was released from confinement while the Judge Advocate General of the Navy certified the case to CAAF. But CAAF reversed the CCA’s decision in 2011, finding the release of Hutchins’ defense counsel to be harmless (noted here) (link to slip op.), and Hutchins was returned to confinement.

After CAAF’s 2011 decision, the Navy-Marine Corps reviewed Hutchins’ case for a second time, and it affirmed the findings and the sentence (noted here). CAAF then granted review (noted here) and, in 2013 it reversed Hutchins’ convictions because military investigators unlawfully reinitiated communications with Hutchins after he requested an attorney (leading to a confession that was erroneously admitted at trial) United States v. Hutchins, 72 M.J. 294 (C.A.A.F. 2013) (CAAFlog case page).

CAAF authorized a rehearing, a rehearing was ordered, and Hutchins was again convicted.

During Hutchins’ second trial, the prosecution offered evidence of uncharged acts as proof of Hutchins’ plan to commit the charged acts. Some of those uncharged acts, however, were the basis for charges of which Hutchins was found not guilty at his first trial. Hutchins’ defense counsel opposed the prosecution’s tactic at the second trial, arguing that the prior acquittal barred the subsequent use of the acts. The military judge disagreed, and the Navy-Marine Corps CCA affirmed with a lengthy analysis that ultimately relied on Mil. R. Evid. 404(b) to hold that the uncharged acts (including acts implicating the acquittals) were “proof of motive, intent, preparation, plan, and an absence of mistake or accident with regard to the charges against [Hutchins], particularly conspiracy to commit murder and murder.” United States v. Hutchins, No. 200800393, slip op. at 23 (N.M. Ct. Crim. App. Jan. 29, 2018) (link to slip op.).

CAAF will now review that issue:

No. 18-0234/MC. U.S. v. Lawrence G. Hutchins III. CCA 200800393. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE MILITARY JUDGE ERRED WHEN HE DENIED THE DEFENSE MOTION TO SUPPRESS EVIDENCE OF CONDUCT FOR WHICH APPELLANT HAD BEEN ACQUITTED AT HIS FIRST TRIAL.

Briefs will be filed under Rule 25.

In a brief memo released on Monday (available here), Secretary of Defense James Mattis asserts that the burdens of the military justice system are worth the cost:

Time, inconvenience, or administrative burdens are no excuse for allowing substandard conduct to persist.

The military justice system is a powerful tool that preserves good order and discipline while protecting the civil rights of Service members. It is a commander’s duty to use it. Military leaders must not interfere with individual cases, but fairness to the accused does not prevent military officers from appropriately condemning and eradicating malignant behavior from our ranks. Leaders must be willing to choose the harder right over the easier wrong. Administrative actions should not be the default method to address illicit conduct simply because it is less burdensome than the military justice system. Leaders cannot be so risk-adverse that the lose their focus on forging disciplined troops ready to ferociously and ethically defeat our enemies on the battlefield.

(emphasis in original). That all assumes that the behavior at issue is actually improper – under both the facts of the case and the law – rather than merely subjectively undesirable.

A reader reports that on July 6, 2018, Senior Airman Andrew Witt was resentenced by a panel of officer and enlisted members to life without the possibility of parole.

Witt’s 2005 conviction of the premeditated murder of a fellow Airman and his wife, and of the attempted murder of another Airman, earned him a death sentence. The Air Force CCA reversed the sentence – finding that Witt’s defense team was deficient in failing to investigate three areas relevant for sentencing – in United States v. Witt, 72 M.J. 727 (A.F. Ct. Crim. App. 2013) (en banc) (noted here). But the Air Force Appellate Government Division sought reconsideration and, in a dramatic reversal, the CCA reinstated Witt’s death sentence in United States v. Witt, 73 M.J. 738 (A.F. Ct. Crim. App. 2014) (en banc) (discussed here). That reversal of fortune was our #7 Military Justice Story of 2014.

CAAF then conducted a mandatory review of the case (because it involved a sentence to death), but the court limited oral argument to just two issues: Whether an en banc CCA can reconsider a prior en banc decision, and whether such reconsideration is permitted when the composition of the court changes from the first decision to the second. In a short and unanimous opinion issued in 2016 CAAF concluded that such reconsideration is allowed but that three judges who participated in the reconsideration in Witt’s case were disqualified from doing so. CAAF then set aside the CCA’s second decision and reinstated the first decision (that set aside the death sentence), remanding the case for a sentence rehearing. (CAAFlog case page).

This morning the Supreme Court denied certiorari in Bales v. United States, No. 17-1583 (CAAFlog news page).

In a decision issued today and available here, Judge Lamberth grants Marine Corps Brigadier General John Baker a writ of habeas corpus and vacates the contempt finding made by military commissions judge Air Force Colonel Vance Spath.

Our (somewhat extensive) prior coverage is available here.

Judge Lamberth concludes:

Judge Spath summarily convicted General Baker of criminal contempt and sentenced him for that criminal contempt. Contempt is an offense under Chapter 47A. But Judge Spath’s actions were unlawful because only a military commission acting through its regularly constituted members is authorized to convict a person of any offense under Chapter 47A. And a military judge is not a member of a military commission nor is he “the military commission” within the meaning of that chapter. For this reason the Court will GRANT General Baker’s Petition, issue the writ he requests, and vacate his conviction.

Op. at 27. This conclusion turns on an important difference between the contempt power of a courts-martial and that of a commission. Article 48, 10 U.S.C. § 848, (the court-martial power) begins:

A judge detailed to a court-martial, a court of inquiry, the United States Court of Appeals for the Armed Forces, a military Court of Criminal Appeals, a provost court, or a military commission may punish for contempt. . .

While 10 U.S.C. § 950t(31) (the commission power) begins:

A military commission under this chapter may punish for contempt. . .

In 2013, Army Staff Sergeant (SSG) Robert Bales pleaded guilty to the 2012 murder of 16 Afghan civilians. The case had been referred capital, and Bales’ plea avoided the possibility of the death sentence. A panel of members sentenced Bales to the maximum possible punishment of life without the possibility of parole. Our coverage of the case is available here.

The Army CCA affirmed the findings and the sentence in an opinion issued last September (link to slip op.). CAAF granted review and summarily affirmed on Feb. 15, 2018. Now Bales seeks certiorari. The petition is available here. The questions presented are:

Whether the Court of Appeals erred when it held that in a capital case, a prosecutor does not have to disclose exculpatory medical evidence in the government’s possession relating to the accused’s state-of-mind to commit 16 homicides where the United States ordered the accused to take mefloquine, a drug known by the U.S. Food and Drug Administration and the U.S. Military to cause long-lasting adverse psychiatric effects, including symptoms of psychosis that may occur years after use.

Whether the Court of Appeals erred when it held that in a capital case, a prosecutor does not have to disclose mitigating impeachment evidence in the government’s possession that Afghan sentencing witnesses flown into the United States left their fingerprints on bombs and improvised explosive devices, especially where the prosecution held the Afghan witnesses out to the jury as innocent “farmers.”

Last month, in United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page), a unanimous CAAF held that the offense of rape of an adult (without aggravating factors) is not constitutionally punishable by death, and so the statute of limitations for a court-martial prosecution for that offense (prior to amendments enacted in 2006) is just five years.

Applying that decision, a military judge has dismissed the charges of rape of a child preferred against retired Army Major General James J. Grazioplene. Those charges were part of the #1 Military Justice Story of 2017 – Exercising court-martial jurisdiction over retired members.

The Army Times reports here:

The alleged abuse included sexual intercourse, molestation and fondling of the alleged victim on multiple occasions, beginning as young as age three.

U.S. Army Circuit Judge Col. Daniel Brookhart noted in his March 23 ruling that at the time of the alleged offense there was “no unique UCMJ article criminalizing the rape of a child.”

“…the age of the victim was not an element of the offense and bore no impact on the punishment authorized in the statute,” Brookhart wrote.

That wouldn’t have stopped Grazioplene from being charged on this allegation, though, because the broader crime of rape under UCMJ at the time could have result in a death penalty. And with the death penalty as a punishment, there was no statute of limitations after 1986.

The first three charges on the six-charge sheet fell under a three-year statute of limitations from before 1986 and were tossed out at a January hearing.

Brookhart then had to rule on the final three charges, which fell in a period from 1986 to 1989, in which rape could be punishable by death and had no statute of limitations.

However, U.S. case law later deemed it unconstitutional to execute someone for adult rape. The U.S. case law and UCMJ punishments both remained in place and at odds until 2008, when military law was changed to remove the death penalty.

Military courts had stood by previous precedent though, allowing cases that previously had no statue of limitations to continue to be charged.

But in February, the Court of Appeals for the Armed Forces, or CAAF, ruled against precedent, setting the statute of limitations on rape cases at five years.

The Army Times report also includes some inflammatory statements from a civilian attorney representing the alleged victim:

The alleged victim’s attorney, Ryan Guilds, told Army Times that his client is one of the strongest sexual assault survivors he has ever met, and “it’s really a shame that the justice system failed her.”

“The important thing to understand from the court’s ruling is it doesn’t have anything to do with the truth of what happened to a little girl from the age of three to 18,” Guilds said. “Or anything to do with the monster who violated not only his duties as a man and a human being but as an Army officer.”

When we last looked at the the ongoing habeas litigation involving Marine Corps Brigadier General John Baker (chief of the Military Commissions Defense Organization) who was found in contempt by Air Force Colonel Vance Spath (chief judge of the Air Force and a judge on the military commissions) – the #6 Military Justice Story of 2017 – it was to consider a renewed request for habeas and a motion by commissions prosecutors to obtain the audio recording of the related commission hearings.

Since then the DOJ filed a response (available here) to Baker’s renewed request, and Baker filed a reply brief (available here).

While the DOJ’s response leads with arguments that the habeas petition is now moot and that Baker failed to exhaust administrative remedies, both of these new briefs give real attention to what I believe is the most important issue in this case: whether Baker’s conduct actually constitutes contempt as the term applies to the Guantanamo commissions. As I discussed here and here, the contempt power of the Guantanamo commissions was narrowly defined by Congress and Baker’s conduct does not clearly (or even remotely, I think) meet that definition.

The DOJ’s brief, however, significantly misinterprets the hierarchy of rules in the military justice system and thereby reaches the opposite conclusion.

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An interesting development in the ongoing habeas litigation involving Marine Corps Brigadier General John Baker (chief of the Military Commissions Defense Organization) who was found in contempt by Air Force Colonel Vance Spath (chief judge of the Air Force and a judge on the military commissions).

Miami Herald reporter Carol Rosenberg reports here that commissions prosecutors filed a motion to release the audio of the commissions proceedings on October 31 and November 1, 2017. The allegedly (but not actually, as discussed here) contemptuous actions of General Baker occurred on October 31, and the contempt hearing itself (where General Baker was not allowed to defend himself) occurred on November 1. The motion to release the audio is not yet available on the commissions website, but Rosenberg has a copy and posted it here. It states, in part:

It is the Prosecution’s recollection that, on 31 October 2017, during the course of Brigadier General Baker’s refusal to obey the Commission’s lawful orders he scoffed and audibly laughed in a contemptuous manner in response to the clear orders given by the Commission to rescind his release of defense counsel. This behavior, coupled with failure to approach the podium when addressing the court and his refusal to take the witness stand when called by the Commission, was consistent with his general deportment of defiance and disrespect before the Commission throughout the proceedings.

Mot. at 3.

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Back in August, in this post, I noted that the Army held an Article 32 preliminary hearing in a case involving allegations that now-retired Major General James J. Grazioplene committed rape on six occasions while on active duty in 1983-1989.

Those allegations were referred for trial and the Washington Post recently reported here that:

Retired Maj. Gen. James J. Grazioplene appeared Tuesday at Fort Belvoir, Va., for his first hearing following an Army general’s decision last month to send the case to a court-martial. Grazioplene, 68, is accused of repeatedly raping a young girl between 1983 and 1989.

The allegations have put the Army in highly unusual territory. The pending trial will mark one of only a few cases since World War II in which a general officer has been prosecuted in open court.

Grazioplene was a major serving at Fort Leavenworth in Kansas when the alleged rapes began, according to court documents. He has not entered a plea.

Continuing court-martial jurisdiction over people who retire from a regular component of the armed forces – which isn’t retirement in the ordinary meaning of the term, but rather is merely a change in military status – has been a hot topic since the NMCCA’s opinion in United States v. Dinger, 76 M.J. 552, No. 201600108 (N.M. Ct. Crim. App. Mar. 28, 2017) (discussed here).

The Grazioplene case also raises issues of the statute of limitations and due process for an accused brought to trial decades after an alleged offense. CAAF is considering similar concerns in the interlocutory Air Force case of United States v. Mangahas, No. 17-0434/AF (CAAFlog case page).

Last month, Marine Corps Brigadier General John Baker – chief of the Military Commissions Defense Organization – was found in contempt by Air Force Colonel Vance Spath, who is the chief judge of the Air Force and a judge on the military commissions. Spath punished Baker with 21 days confinement and a $1,000 fine. Baker served three days of that confinement in quarters before the commissions convening authority deferred the rest, and then ultimately disapproved both the confinement and the fine.

The basis of the contempt finding was General Baker’s refusal to appear as a witness to answer questions by Spath about the release of three civilian defense counsel from the case of Abd al Rahim al Nashiri (who is accused of orchestrating the 2000 bombing of USS Cole). I analyzed the finding in this post, and concluded that Baker’s conduct does not constitute contempt as the term is defined by Congress in 10 U.S.C. § 950t(31) (the commissions contempt power).

After the contempt finding, and while still confined to quarters, General Baker filed a petition for a writ of habeas corpus in the District Court for the District of Columbia. I analyzed the petition in this post and concluded that it was a loser. Judge Royce C. Lamberth heard oral argument on the petition and deferred ruling (after the convening authority deferred the confinement and Baker was released).

Last Friday, General Baker filed a supplemental brief. A copy is available here.

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In a press release dated yesterday and available here, the Office of Military Commissions Convening Authority announced that the finding of contempt against Marine Corps Brigadier General John Baker by Air Force Military Judge Colonel Vance Spath – a finding that I analyzed in this post and concluded exceeded Spath’s statutory authority – is correct in law and fact.

The convening authority (Harvey Rishikof) disapproved the punishment of confinement for 21 days and a $1,000 fine. BGen Baker served three of those days of confinement in his quarters at Guantanamo before the remainder was deferred.

The convening authority also announced his intent to refer the matter for an ethics review.

The full text of the release is after the jump.

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Devin Patrick Kelley – identified as the shooter who killed 26 people and wounded many others yesterday in a South Texas church – was reportedly a former member of the Air Force who was convicted by a court-martial in 2012. This AP report, for example, states:

Kelley received a bad conduct discharge from the Air Force for assaulting his spouse and child, and was sentenced to 12 months’ confinement after a 2012 court-martial. Kelley served in Logistics Readiness at Holloman Air Force Base in New Mexico from 2010 until his 2014 discharge, Air Force spokeswoman Ann Stefanek said.

From this information I found the Air Force CCA’s opinion in United States v. Kelley, No. 38267, 2013 CCA LEXIS 1100 (A.F. Ct. Crim. App. Dec. 3, 2013) (link to slip op.), rev. denied, 73 M.J. 257 (C.A.A.F. 2014). The opinion is not on the CCA’s website, but it is a summary disposition affirming the findings of a general court-martial and a sentence of confinement for 12 months, reduction to E-1, and a bad-conduct discharge.

That doesn’t tell us the precise offenses of which Kelley was convicted, but it strongly suggests that Kelley was convicted of an offense for which the maximum authorized punishment exceeds confinement for one year.

Accordingly, 18 U.S.C. § 922 prohibits Kelley from possessing practically any firearm:

(g) It shall be unlawful for any person–

(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; . . .

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

However, according to this Washington Post story:

Officials described the shooter’s weapon as a Ruger AR-556, an assault-style rifle similar to those used by the military. CNN, citing a law enforcement individual, reported that Kelley purchased the weapon in April 2016 from an Academy Sports & Outdoors store in San Antonio.

(emphasis added).

Update 1 (1135 eastern):
Some media outlets report that Kelley’s court-martial convictions related to domestic violence (this local news report quotes an Air Force spokeswoman as saying he was convicted of domestic violence in 2012 at Holloman AFB in Alamogordo, New Mexico).

If so, then in addition to the prohibition in 18 U.S.C. § 922(g)(1) discussed above, he was alternatively prohibited from possessing a firearm by 18 U.S.C. § 922(g)(9), commonly known as the Lautenberg Amendment, which applies to anyone:

(9) who has been convicted in any court of a misdemeanor crime of domestic violence,

Update 2 (1354 eastern): Thanks to our reader for a link to the opinion now available on the CCA’s website (I’m certain it was not there this morning).

Update 3 (1400 eastern): While the adjudged sentence tracks the maximum at a special court-martial, CBS news reports here that “the Air Force tells CBS News Kelley’s case was a general court martial. . .”

Update 4 (1612 eastern): The New York Times reports here:

“He assaulted his stepson severely enough that he fractured his skill, and he also assaulted his wife, said Don Christensen, a retired colonel who was the chief prosecutor for the Air Force. “He pled to intentionally doing it.”

He was sentenced in November of that year to 10 months’ confinement and reduction to the lowest possible rank. After his confinement, he was discharged from the military with a bad conduct discharge. It is unclear whether his conviction would have barred him from purchasing a gun.

(emphasis added). We, of course, know that the last sentence is wrong.

Here is a link to a notice filed by the Government in Baker v. Spath, et al., informing the court that:

Shortly before 1 p.m. on November 3, 2017, the Convening Authority sua sponte deferred the remaining term of Petitioner’s sentence of confinement pending final action by the Convening Authority on the contempt findings. See Rule For Military Commission 1101(c). The deferral is effective immediately and notice of the Convening Authority’s decision has been served on Petitioner.

A military judge has found that Bowe Bergdahl should serve no prison time for endangering his comrades by walking off his Afghanistan post.

The judge also gave Bergdahl a dishonorable discharge, reduced his rank to private and said he must forfeit pay equal to $1,000 per month for 10 months. The judge made no other comments.