CAAFlog » Court-Martial News

Every Sunday at 1 p.m. we publish This Week in Military Justice, a summary of upcoming military justice events. While putting together today’s post I saw that tomorrow the Air Force CCA, sitting en banc, will hear oral argument in an interlocutory appeal:

United States v. Wright, No. 2014-10

Issue: Whether the military judge abused his discretion by abating the proceedings after the government complied with his discovery compliance order, proved beyond a reasonable doubt that no unlawful command influence or appearance thereof existed, and properly asserted the attorney-client and work product privileges.

To the best of my knowledge (and someone please correct me if I’m wrong on this) this is a sexual assault case that was dismissed last year after Air Force Lieutenant General Craig Franklin determined that an Article 32 pretrial investigation did not reveal enough evidence to support trial by court-martial. (update: a few readers have confirmed that this is the same case). For those who don’t immediately recognize the name, Franklin was the convening authority in the Wilkerson case, our #5 Military Justice Story of 2013.

It seems we’ve covered the Wright case sporadically during the past year. In this post from February, I noted news reports about Franklin’s removal as convening authority and the convening of a second Article 32 investigation in the case. Then, in this post from March, I noted a news report that the case was referred for trial by the new convening authority. Finally, in this post from August, Mike noted the action that appears to be the subject of the Government appeal to the CCA:

The Wright court-martial drags on as Judge Kastenberg threatens to dismiss the case if he doesn’t see emails from the AF TJAG and SecAirForce. Stars and Stripes report here.  The case against Airman 1st Class Brandon T. Wright went to an Art. 32 and resulted in a recommendation of dismissal.  The CA was, unfortunately, Lt. Gen. Craig Franklin.  After he chose not to refer the case, senior AF officials became involved.  This resulted in a new Art. 32 hearing (now at JB Andrews) and a new CA, Maj. Gen. Sharon K. G. Dunbar, deciding to refer the case.  Defense counsel want emails between senior officials to determine if there was UCI.  Judge Kastenberg has agreed, but the Air Force is refusing to produce them, even for an in camera review by the judge.  Prior coverage here.

Unfortunately, that’s about all the detail I can find about the case that will be before the full AFCCA tomorrow (and my conclusion that it’s the same case is really only an educated guess). Considering the visibility of this case, the politically charged environment for sexual assault prosecutions at courts-martial, and the overriding need to avoid even the appearance of unlawful command influence, I’m saddened that we don’t have more information about this case.

However, I will note that the Government’s apparent refusal to produce correspondence for an in camera review reminds me of a recent case, also from the Air Force, where a similar attitude led to a dismissal with prejudice. In a published opinion issued last month in United States v. Bowser, __ M.J. __, Misc. Dkt. No. 2014-08 (A.F. Ct. Crim. App. Oct 3, 2014) (discussed here), the Air Force CCA affirmed the judge’s ruling that dismissed with prejudice charges of rape, forcible sodomy, and assault, after the trial counsel refused to obey an order for an in camera review of the prosecution team’s witness interview notes.

Whether the Air Force seeks to use Wright to re-litigate the issues it lost in Bowser remains to be seen.

Here is a link to Stars & Stripes article on the motions hearing in the court-martial of Air Force Staff Sergent Sean Oliver.  Oliver is accused of premeditated murder in the death of PO2 Dmitri Chepusov, a reporter with the  rmed Forces Network reporter.  Oliver is accused of “beating and strangling Chepusov at the house of another AFN airman in December 2013. Chepusov’s body was found in the passenger seat of Oliver’s car Dec. 14 after German police pulled Oliver over for driving erratically in Kaiserslautern.”  Military Judge Colonel Donald Eller denied a defense motion to suppress Oliver’s statements, among other rulings.  Prior coverage here and here.

Colorado Springs Gazette has this story on the court-martial proceedings at Fort Carson int he case of Sgt. Montrell Mayo, who is acccused of killing his girlfriend, Cpl. Kimberly Walker in a Colorado Springs hotel room after a Valentine’s Day rendevous went wrong.   It doesn;t appear from the latest reports that the death sentence is available inthis case.

I missed it, but thought we’d post a link to the very quiet retirement of a general accused of “sexual misconduct.”  Stars and Stripes article, here, about the retirement of Maj. Gen. Ralph O. Baker.  Here is a link to prior coverage of allegations of sexual assault against now Brigadier General Baker.

KTUU.com Anchorage reports, here, that an  Alaska-based soldier’s court-martial  on murder and rape charges will begin next Monday at Joint Base Lewis McChord.  Sgt. Nathaniel Ulroan is charged with the premeditated murder of his three year old son and the rape of his wife. AP (via S&S) coverage here.

Former USAFA Cadet convicted of abusive sexual contact raises profile as standout on Alcorn Srltate football squad, ABC News coverage here. The article has some commentary on the Mil Jus system’s handling of Cadet Cooks’ case and sexual assault cases in general. Prior coverage here.

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.

Three Ft. Hood soldiers have been charged with trafficking illegal immigrants across the US-Mexican border reports then San Antonio News Express  (via Military.com), here. Charges are pending in US District Court as part of a joint investigation. No word on whether they will eventually face court-martial charges.

We haven’t covered the ongoing mutiny courts-martial in Nigeria the way the GMJR blog has, see recent coverage here. But here amd here are two Nigerian Tribune articles that offer a glimpse of the struggles the Nigerian military is having deploying soldiers to fight Boko Haram terrorists in its own borders.

The investigation into the disappearance of PFC Bowe Berdahl and his subsequent capture by the Taliban is completed reports the San Antonio News -Express, here. Prior coverage of the prisoner wlswap for Bergdahl and questions about whether he went UA are here and here.

The Wright court-martial drags on as Judge Kastenberg threatens to dismiss the case if he doesn’t see emails from the AF TJAG and SecAirForce. Stars and Stripes report here.  The case against Airman 1st Class Brandon T. Wright went to an Art. 32 and resulted in a recommendation of dismissal.  The CA was, unfortunately, Lt. Gen. Craig Franklin.  After he chose not to refer the case, senior AF officials became involved.  This resulted in a new Art. 32 hearing (now at JB Andrews) and a new CA, Maj. Gen. Sharon K. G. Dunbar, deciding to refer the case.  Defense counsel want emails between senior officials to determine if there was UCI.  Judge Kastenberg has agreed, but the Air Force is refusing to produce them, even for an in camera review by the judge.  Prior coverage here.

Major General Michael Harrison, former Commander of USA Japan, has been retired at one lower paygrade as a result of his mishandling of a sexual assault case, Stars and Stripes report here.  The mishandling arose from a DoD civilian Japanese employee’s report of misconduct by an Army Colonel that was a longtime colleague of the General.  According to S&S:

Harrison referred the case to criminal investigators only after a reporter from Stars and Stripes spoke to the victim and inquired with U.S. Army Japan about the allegations. Previously, the general had ordered only an internal investigation of the allegations, in violation of regulations.

More than two months elapsed between the woman’s allegation of sexual assault and her first contact with Army Criminal Investigation Command, the IG reported.

Additional coverage from Stars and Stripes here and here.

An AP report, here, on the Sgt. Hasan Akbar hearing set for Nov. 18 at CAAF.  CAAF page here.  Prior posts here and here (ACCA Akbar op. from 2012).

A second servicemember will face court martial in the death of PO2 Dmitri Chepusov, S&S reports here. Prior coverage here. Chepusov was an Armed Forces Network reporter and was reportedly killed when Air Force Staff Sgt. Sean Oliver allegedly “beat[] and strangl[ed] Chepusov at the house of another AFN airman in December. Chepusov’s body was found in the passenger seat of Oliver’s car Dec. 14 after German police pulled Oliver over for driving erratically in Kaiserslautern.” Army SPC Cody Kramer is charged with a false official statement as part of a scheme to cover up the alleged murder.

A Sergeant First Class shot herself yesterday after an hour long standoff with police at Ft. Lee in Virginia, reports ABC7News (WJLA) here. The Richmond Times-Dispatch reports, here, that the soldier died from her wounds. No word on whether the soldier had prior mental health issues.

The FayObs reports, here, that convicted Army Captain Jeffrey MacDonald wants the courts to review again his multiple life sentences in light of recently released DOJ OIG report criticizing the FBI for its lackluster response to 1997 allegations of gun-decked lab work by FBI technicians, WaPo report here on the DOJ OIG findings.  The government’s case against MacDonald was built in part on fiber analysis testimony of FBI lab technician Michael Malone, whose work was central in the 1997 report.

An Art. 32 hearing is scheduled for tomorrow in the case of Marine Corps’ Cpl. Wassef Ali Hassoun, who allegedly deserted his post in Iraq, but was feared to have been abducted by insurgents at the time.  Marine Corps Times report here.  Prior coverage here.

San Antonio News-Express reports, here, that the recruiter misconduct cases, including that of TSgt Jaime Rodriguez, are now being used as a training scenario.  Prior coverage here and here, among others.

Air Force Staff Sergeant to face non-capital murder charges in death of Navy Petty Officer.  AF Times coverage here and here.  The non-capital referral appears to be a nod to induce German authorities (who arrested the accused, Air Force SSgt Sean Oliver) to cooperate (S&S report here).  Prior coverage of Art. 32 here.

Military.com reports, here, that “Sgt. Bowe Bergdahl plans to leave the Army and attend college if he is cleared of potential desertion charges following the Army’s investigation into his capture in Afghanistan, Bergdahl’s lawyer said Tuesday.”  The investigation of Begdahl’s disappearance from his post in Afghanistan is expected in September the report says.

RAND Corp. will conduct the biennial DoD survey of workplace issues, sexual harassment and sexual assault reports S&S, here, “after prompting from some members of Congress to get an independent look at current trends, the Pentagon earlier this year signed a contract with RAND to carry out the survey.”

A Navy officer is suing the service for alleged retaliation for reporting negative health effects of burn pits, Military Times report here,

Former Lt. Cmdr. Celeste Santana, an environmental health expert, said in documents filed Aug. 1 in the U.S. Court of Federal Claims that she was relieved from duty at the base in 2009 in retaliation for reporting “serious environmental health issues” affecting the safety of U.S. troops and local Afghans.

H/t Defense News EB

Back in May, in this post, Phil reported a Government search of defense counsel offices at Marine Corps Base Camp Pendleton. The search was for a mobile telephone that belonged to an accused and was in the custody of a military defense counsel. The media picked up the story, as did the ABA Journal. And then, according to media reports (discussed here), the incident led to a prosecutor’s reassignment.

I made a FOIA request for documents associated with the search, including the search authorization (a military authorization analogous to a warrant) and the affidavit that supported the authorization. I recently received those documents and they are available – exactly as they were given to me by the Camp Pendleton FOIA office in response to my request – here.

Update: I got a call informing me that there was an unredacted social security number in the PDF. I have redacted it in two places. But I must stress that this PDF was provided to me by the Pendleton FOIA office in response to a formal FOIA request.

The authorization (the first page of the PDF) permits the seizure of the personal telephone of an accused named Sergeant Bentancourt. The authorization states that it is based upon an affidavit by an Agent Brandt, though the agent’s name in the actual affidavit released to me (pages 3-14 of the PDF) is redacted. The affidavit revels:

On 04Apr14, 1stLt [redacted], Defense Counsel, Legal Services Support Section West, MCB CPC, filed a defense motion for appropriate relief to compel release from pretrial confinement wherein she provided various images [sic] text message communication she obtained from Sgt [redacted] cellular telephone. The text message communication in the aforementioned motion is between Sgt [redacted] and a contact listed as [redacted] with telephone number [redacted]. During the text message communication, Sgt [redacted] and Mrs. [redacted] discussed the alleged assault. The text message communication provided by 1stLt [redacted] is only limited to portions deemed appropriate by 1stLt [redacted]. There is a high likelihood additional text message communications are available with evidentiary value to this investigation.

Affidavit at 6-7. What is the source for the agent’s crucial determination that there was a high likelihood of additional text messages with evidentiary value? “Training and experience,” according to the affidavit:

This Affiant knows from training and experience persons associated with the aforementioned criminal activities typically store evidence of those activities on digital media storage devices.

Affidavit at 7.

So much for view that “clearly, a profile alone without specific nexus to the person concerned cannot provide the sort of articulable facts necessary to find probable cause to search.” United States v. MaComber, 67 M.J. 214, 220 (C.A.A.F. 2009).

Amnesty International published a report (direct link to report) on Monday on civilian casualties in Afghanistan. This press release explains:

“Thousands of Afghans have been killed or injured by US forces since the invasion, but the victims and their families have little chance of redress. The US military justice system almost always fails to hold its soldiers accountable for unlawful killings and other abuses,” said Richard Bennett, Amnesty International’s Asia Pacific Director.

Corporal Robert Richards, who pleaded guilty to an orders violation and a violation of Article 134 in connection with the Afghanistan urination case, was found dead in his North Carolina home earlier this week. A report from Stars and Stripes is here.

In a report available here, McClatchy reporter Michael Doyle covers CAAF’s opinion in United States v. Davenport, No. 13-0573/AR, __ M.J. __ (C.A.A.F. Aug. 11, 2014) (CAAFlog case page).

Stars and Stripes reports here that:

An Air Force fighter pilot was convicted of rape last week, nine years after he committed the crime against a young airman.

Lt. Col. Michael J. Briggs, an F-16 pilot who was the 52nd Fighter Wing chief of safety at Spangdahlem Air Base, Germany, was convicted on Aug. 7, according to Air Force officials, after a weeklong court-martial before a military judge.

The judge sentenced Briggs, 40, to five months in jail, dismissal from the Air Force and a reprimand.

Finally, Stars and Stripes reprints a Colorado Springs Gazette article about allegations that cadet athletes at the Air Force Academy “flouted the sacred honor code by committing sexual assaults, taking drugs, cheating and engaging in other misconduct at wild parties while the service academy focused on winning bowl games and attracting money from alumni and private sources in recent years.”

Sergeant Bergdahl remains in the news, with this New York Times report on his interview with Major General Kenneth R. Dahl, who was appointed to investigate Sergeant Bergdahl’s capture by the Taliban. Stars and Stripes has this version of the story from the Associated Press. And the Military Times reports here that:

A July 15-17 unscientific poll by Military Times asked readers what the military should do with Bergdahl now that he has finished his Amy-led reintegration process. Of the more than 4,400 people who responded, 60 percent selected the “court-martial him” option.

Here’s a link to an interesting story out of the Army involving a Private First Class Chestnut:

Chestnut, 25 and openly gay, was found guilty by a military jury June 24 of one specification of sexual assault and found not guilty of one specification of assault consummated by a battery against another male soldier during his time at Fort Sam Houston. He was sentenced July 2 to three years in prison, reduction in rank to private and a dishonorable discharge.

During the sentencing phase of the court-martial last month, the judge in the case, Col. Gregory Gross, said he would recommend to the convening authority to overturn the guilty findings.

The Marine Corps Times reports here on a series of military justice related questions put to General Dunford during his confirmation hearings on his nomination to be the 36th Commandant of the Marine Corps.

And this report from military.com says that the DoD completed a report required by section 652 of the FY14 NDAA, concluding that it is “inappropriate” to provide additional transitional benefits to the dependents of service members punitively separated by a court-martial (i.e., who lose retirement benefits because of a conviction). I haven’t been able to find the actual DoD report.

In case you missed the news this weekend, the DoD IG has cleared the Commandant of the Marine Corps of wrongdoing in the Marine Corps’ urination cases.  Reports here (Marine Corps Times) and here (WaPo).  Strange result in a stranger case.  The Marine Corps has no current plans to release the investigation, but it is unclear if they are considering it or asking the DoD IG to do so–though the Marine Corps seemingly had no problem immediately confirming details about actions against the whistleblower in this case, see e.g.  here.

For those that yearn for human interest military justice stories, from The Oklahoman, “Free on the Plains,” a story of Michael Behenna’s life since his release from the USDB.