CAAFlog » Court-Martial News

The Wright case is an Air Force sexual assault prosecution that was dismissed last year by Air Force Lieutenant General Craig Franklin. After General Franklin dismissed the charges, authority over the case was transferred to Air Force District of Washington in Maryland, new charges were preferred, a second Article 32 pretrial investigation was conducted, and the charges were referred to trial. Litigation of defense claims of unlawful command influence followed, and the trial judge eventually abated the proceedings after the Government asserted an attorney-client privilege over documents sought by the defense in connection with those claims. The Government appealed that abatement and the AFCCA reversed, finding that the military judge’s findings were incomplete.

I discussed the AFCCA’s decision in this post. I summarized our past coverage in this post.

Now Stars and Stripes reports here that the case will proceed to trial despite a finding of improper influence by senior Air Force officials:

Lt. Col. Joshua Kastenberg, in a July 30 ruling in response to a defense motion to dismiss the case against Airman 1st Class Brandon T. Wright, found that Lt. Gen. Richard Harding, formerly the Air Force Judge Advocate General, had improperly influenced the case or had given the appearance of doing so.

One such instance, the judge ruled, was recommending that Wright’s case be transferred to another court-martial convening authority for a do-over after the first convening authority, Lt. Gen. Craig Franklin, dismissed the case in the summer of 2013. Franklin’s dismissal came after an Article 32 investigative hearing at Aviano Air Base, Italy.

Such transfers are almost unheard of. It happened in the Wright case, Kastenberg’s ruling says, in part because Harding was worried that “the failure to have charges preferred against SrA Wright would enable Senator Kirsten Gillibrand to gain needed votes on a pending bill to remove commanders from the court-martial process.”

. . .

Yet none of these actions affected the current case against Wright, Kastenberg said, because all parties involved in the second investigation — at the Air Force District of Washington — acted independently, with no unlawful command influence. As a result of that investigation, a convening authority sent the case to court-martial.

Sergeant Bergdahl has filed another writ-appeal petition at CAAF:

No. 15-0710/AR. Robert B. Bergdahl, Appellant v.  Peter Q. Burke, Lieutenant Colonel, AG, U.S. Army, in his official capacity as Commander, Special Troops Battalion, U.S. Army Forces Command, Fort Bragg, NC, and Special Court-Marital Convening Authority and United States, Appellees.  CCA 20150463.

Notice is hereby given that a writ-appeal petition for review of the decision of the United States Army Court of Criminal Appeals on petition for extraordinary relief in the nature of a writ of quo warranto or other appropriate writ was filed under Rule 27(b) on this date.

Quo warranto means “by what authority.” A complete copy of the writ-appeal petition is available here.

The issue presented is:

Where the Secretary of the Army refers a report of offense to a general court-martial convening authority on the express condition that he “may not further delegate this authority,” may he nonetheless forward it to a subordinate commander for all purposes other than ultimate disposition?

The petition digs deep into the finer points of court-martial procedure, but I’m going to try my best to summarize it in plain English.

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CAAF’s daily journal was just updated to show that on Tuesday the court denied two significant petitions for extraordinary writs.

The first was a petition from an alleged victim in an ongoing court-martial. I discussed the petition in a post titled: An alleged victim seeks extraordinary relief from CAAF.

No. 15-0606/MC. CB v. Moira Modzelewski, Captain, U.S. Navy, in her official capacity as Military Judge, Appellee, and Donald Foster, Lance Corporal, U.S. Marine Corps, Real Party in Interest. CCA 201500058. On consideration of the writ-appeal petition, Appellant’s motion for a stay of trial court proceedings, and the motion of Amicus Curiae Protect Our Defenders to file a proposed brief out of time, the motion of Amicus Curiae Protect Our Defenders to file a proposed brief out of time is hereby granted; Appellant’s motion for a stay of trial court proceedings is hereby denied; and Appellant’s writ-appeal petition is hereby denied.

The second was a petition from Sergeant Bergdahl that I discussed in a post titled: Bergdahl seeks extraordinary relief.

No. 15-0616/AR. Robert B. Bergdahl v. Mark R. Milley, General, U.S. Army, in his official capacity as Commanding General, U.S. Army Forces Command and General Court-Martial Convening Authority. CCA20150383.  On consideration of the writ-appeal petition, and the motions filed by Alfredo N. Foster, Jr., Esq., and Franklin D. Rosenblatt, Esq., to appear pro hac vice, said motions are granted. The writ-appeal petition is hereby denied without prejudice to Appellant’s right to raise the issue asserted during the course of normal appellate review.

Notably, in the Bergdahl petition, CAAF granted the government an extension of time to file an answer to the petition, even though the government requested the extension after the deadline to file the answer had already passed (discussed here).

LA Times story here.

Yesterday, CAAF issued the following order:

No. 15-0616/AR. Robert B. Bergdahl, Appellant v. Mark A. Milley, General, U.S. Army, in his official capacity as Commanding General, U.S. Army Forces Command and General Court-Martial Convening Authority, and United States, Appellees. CCA 20150383.  On consideration of Appellee’s motion to file an extension of time out of time and motion to extend time to file an answer to the writ-appeal petition, it is ordered that said motions are hereby granted, and that Appellees will file an answer to the writ-appeal petition on or before June 22, 2015.

(emphasis added). I discussed Bergdahl’s petition in this post.

Notably, CAAF’s rule 28(b)(2) appears to compel an answer to a writ-appeal petition within ten days of the filing of a petition:

(2) The appellee’s answer to a writ-appeal petition shall be filed no later than 10 days after the filing of the appellant’s writ-appeal petition.

To my knowledge, the Government routinely fails to answer writ-appeal petitions (without consequence).

According to a Los Angeles Times report available here, the Government has failed to compel five witnesses to testify during the retrial of Marine Sergeant Hutchins:

Dspite offers of immunity from prosecution, four ex-Marines and a former Navy corpsman have refused to testify against Sgt. Lawrence Hutchins in his retrial in the 2006 killing of an Iraqi.

The five — all of whom were convicted in the killing and served time in the brig — asserted their 5th Amendment right against self-incrimination during the court martial last week at Camp Pendleton.

Undeterred, the Government presses on:

Over [the defense counsel’s] objection, the judge ruled that the prosecution could submit as evidence verbatim transcripts of the squad members’ previous testimony.

The new head of DoD Personnel thinks so.  In an article, here (Military Times), yesterday, Brad Carson, the Acting Under Secretary of Defense for Personnel and Readiness, is quoted as questioning up or out for certain military career paths, stating:

The best companies in America today … don’t take people who are engaged in disciplines where there is a steep learning curve, where every year you are getting better, and when you are in your 40s or your 50s and at the very apex of your career, say, ‘I’m sorry, we are forcing you to retire,’ . . . .

If you are an infantryman, that is a hard job and you are probably peaking at your performance in your 20s, or if not your early 30s at the latest, . . . .

It’s different to be 50 years old in the infantry, as opposed to being a computer network exploitation expert who is getting better every single year — or being someone in the [Judge Advocate General] Corps where you are getting better every single year, . . . .

So maybe there is a way we need to think about how to modify the up-or-out promotion system.

That’s refreshing.

CAAF’s daily journal for Friday has the following entry:

No. 15-0616/AR. Robert B. Bergdahl, Appellant v. Mark A. Mi[l]ley, General U.S. Army, in his official capacity as Commanding General, U.S. Armed Forces Command and General Court-Martial Convening Authority, and United States, Appellees. CCA 20150383.  Notice is hereby given that a writ-appeal petition for review of the decision of the United States Army Court of Criminal Appeals on application for extraordinary relief in the nature of a writ of mandamus was filed under Rule 27(b) on this date.

A copy of the petition is available here. Sergeant Bergdahl seeks to disqualify General Milley as the convening authority under the theory that he is an accuser in the case.

“An accuser is an individual: (1) ‘who signs and swears to charges’; (2) ‘who directs that charges nominally be signed and sworn to by another [type two accuser]’; or (3) ‘who has an interest other than an official interest in the prosecution of the accused [type three accuser].'” United States v. Ashby, 68 M.J. 108, 129 (C.A.A.F. 2009) (quoting Article 1(9), UCMJ) (marks in original). “An accuser may not convene a general or special court-martial, nor may he refer charges to a court-martial.” Id.

Bergdahl asserts that General Milley is a type three accuser (that he has an interest other than an official interest in the prosecution of the accused) because General Milley was recently nominated for the position of Chief of Staff of the Army (the most senior officer post in the Army). The writ-appeal petition asserts that:

General Milley’s service as GCMCA for appellant’s case while his nomination is awaiting SASC consideration and a vote by the full Senate, and in light of the extraordinary interest that body has expressed in matters relating to appellant, deprives him of the right to discretionary GCMCA decision-making that is (and appears to be) based solely on the facts and circumstances of the case, without regard to the personal interest of that official in being confirmed for higher office.

Pet. at 8 (internal citation omitted). The petition concludes by asserting that “A new GCMCA must be designated who does not have a SASC confirmation hanging over his or her head. Failing to grant the relief requested at this time will not foster public confidence in the administration of justice.” Pet. at 14.

I think the greater danger to public confidence lies in the possibility that CAAF will grant the requested relief. The petition identifies no actions by General Milley that make him an accuser; it is his nomination alone that is seen as disqualifying. Were CAAF to agree that General Milley’s mere nomination to the senior position in the Army gives him an interest other than an official interest in the prosecution of Sergeant Bergdahl, it’s hard to identify a limiting principle that would prevent a similar argument from disqualifying a wide range of convening authorities. Moreover, I think such a holding would imply that senior officers are incapable of implementing the UCMJ fairly and impartially – a disturbing proposition.

Last term, in United States v. MacDonald, 73 M.J. 426 (C.A.A.F. Aug. 27, 2014) (CAAFlog case page) CAAF unanimously reversed a premeditated murder conviction after concluding that the military judge’s failure to give an involuntary intoxication instruction regarding the appellant’s use of the smoking-cessation drug Chantix was error that was not harmless.

In a McClatchy report available here, it appears that the parties have reached a pretrial agreement in the case:

The promising young soldier who killed a Fresno, Calif., native in a Fort Benning, Ga., barracks could eventually regain his freedom, under a new plea agreement.

In a case that ravaged several families, while it raised provocative questions about the smoking cessation drug Chantix, Army Pfc. George D.B. MacDonald has agreed to plead guilty to the unpremeditated murder of Pvt. Rick Bulmer, according to relatives and other informed individuals who declined to be identified in order to talk about the case.

 

Associated Press (via the Washington Post) story here. All of our prior coverage here.

Sen. Clair McCaskill added and amendment to the long stalled human trafficking bill that requires. Coverage here (St. Louis Post Dispatch). The predecessor of the amendment, the Military Sex Offender Reporting Act of 2015, requires SecDef to report qualifying offenders from courts martial to DOJ for inclusion on he National Sex Offender Registry. 

More coverage of the PVT Jeremiah Hill court martial here and here (military.com), focusing on the accused’s friends’ testimony about the night of the murser outside JBLM.  The trial continues today. 

A Joint Base Lewis-McCord soldier testified in his court-martial yesterday that he killed a fellow soldier in self-defense in the nearby town of Lakewood.  Private Jeremiah Hill testified that he stabbed Spc. Tevin Geike after Geike pulled out a knife and cut Hill when he tried to take it from him.  Hill’s companions on the night of the murder also testified but distanced themselves from Hill’s actions.  Hill faces life in prison without the possibility of parole if he is convicted of the murder.  Full report from the Tacoma News Tribune here.

The FY 2016 NDAA markup continues the trend of military justice “fixes.”  Here is the HASC Subcommittee on Military Personnel Markup containing a variety of provisions focused on dealing with issues related to sexual assault.  The current markup includes sections addressing retaliation against victims and witnesses to sexual assault and improved response to sexual assault of male members of the armed forces.  The markup schedule is here.

Of the two charges preferred against Sergeant Bergdahl, the first is desertion. But the desertion charge against Bergdahl is special. It does not allege that Bergdahl left his unit with the intent to remain away permanently – a typical desertion charge and a violation of Article 85(a)(1). Rather, it alleges that he left his unit “with the intent to shirk important service and avoid hazardous duty” – a less common violation of Article 85(a)(2):

CHARGE I: VIOLATION OF THE UCMJ, ARTICLE 85
SPECIFICATION: In that Sergeant Robert (Bowe) Bowdrie Bergdahl, United States Army, did, on or about 30 June 2009, with the intent to shirk important service and avoid hazardous duty, namely: combat operations in Afghanistan; and guard duty at Observation Post Mest, Paktika Province, Afghanistan; and combat patrol duties in Paktika Province, Afghanistan, quit his place of duty, to wit: Observation Post Mest, located in Paktika Province, Afghanistan, and did remain so absent in desertion until on or about 31 May 2014.

(emphasis added).

Article 85 of the UCMJ is based in part on Article 28 of the Articles of War, which was modified in 1920 to include the language that is now found in Article 85(a)(2). See 41 Stat. 787 (1920). An early case decided by the Court of Military Appeals provides meaningful context:

Desertion with intent to avoid hazardous duty – by its very terms – connotes an absence without leave the prompting for which is a specific intent entertained by the offender to avoid the hazardous duty present or in prospect. As a matter of law, the offense is not committed by reason of a naked unauthorized absence, without more, from a unit engaged in hazardous duty. . . . In terms of legal distinction it is manifest that desertion with intent to avoid hazardous duty is not identical with absence without leave from a unit engaged in hazardous duty. Instead, the entertainment of a particular purpose lies at the very heart of the desertion offense.

United States v. Apple, 10 C.M.R. 90, 91 (C.M.A. 1953) (emphases omitted). And so, to convict Sergeant Bergdahl of the charged offense of desertion, the Government needs to prove that he had the specific intent to either avoid hazardous duty or to shirk important service, such duty or service being “combat operations,” “guard duty,” or “combat patrol duties.”

To this end, however, Bergdahl’s own words may doom him. This CNN report states that:

Sgt. Bowe Bergdahl told the military he left his unit in eastern Afghanistan in July 2009 intending to walk to the nearest U.S. military outpost to report wrongdoing, believing he could not trust his own commanders to deal with his concerns, according to sources familiar with the Army investigation.

And Bergdhal’s attorneys sent a letter on March 2, 2015, asserting that:

While hedging its bets (n.347), the [Army’s investigative] report basically concludes that SGT Bergdahl did not intent to remain away from the Army permanently, as classic “long” desertion requires. It also concludes that his specific intent was to bring what he thought were disturbing circumstances to the attention of the nearest general officer.

Letter at 7 (pages unnumbered numbered at the top; see linked PDF at 8). Of course, it is meaningless that Bergdahl did not intend to remain away permanently. Bergdahl is charged with so-called “short” desertion, not “long” desertion. See Alfred Avins, A History of Short Desertion, 13 Mil.L.Rev. 143 (1961) (available here).

Yet if Bergdahl truly intended to make a report to the nearest general officer (after traversing southeastern Afghanistan alone, on foot, and seemingly unarmed), that doesn’t prevent a conviction for desertion. In fact, it might guarantee his conviction, because Bergdahl will be deemed to have intended the natural and probable consequences of his actions, and his ulterior motives are likely irrelevant.

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Time has posted a cleansed copy of the Bergdahl charge sheet online: it’s available here.

The specifications read:

CHARGE I: VIOLATION OF THE UCMJ, ARTICLE 85
SPECIFICATION: In that Sergeant Robert (Bowe) Bowdrie Bergdahl, United States Army, did, on or about 30 June 2009, with the intent to shirk important service and avoid hazardous duty, namely: combat operations in Afghanistan; and guard duty at Observation Post Mest, Paktika Province, Afghanistan; and combat patrol duties in Paktika Province, Afghanistan, quit his place of duty, to wit: Observation Post Mest, located in Paktika Province, Afghanistan, and did remain so absent in desertion until on or about 31 May 2014.

CHARGE II: VIOLATION OF THE UCMJ, ARTICLE 99
SPECIFICATION: In that Sergeant Robert (Bowe) Bowdrie Bergdahl, United States Army, did, at or near Observation Post Mest, Paktika Province, Afghanistan, on or about 30 June 2009, before the enemy, endanger the safety of Observation Post Mest and Task Force Yukon, which it was his duty to defend, by intentional misconduct in that he left Observation Post Mest alone; and left without authority; and wrongfully caused search and recovery operations.

Our continuing coverage of the Bergdahl case is available here.

Click read more to see video of the Army’s official statement.

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