CAAFlog » Court-Martial News

In a press release available here, the White House announces:

Today, President Donald J. Trump signed an Executive Grant of Clemency (Full Pardon) for Army First Lieutenant Clint Lorance, an Executive Grant of Clemency (Full Pardon) for Army Major Mathew Golsteyn, and an order directing the promotion of Special Warfare Operator First Class Edward R. Gallagher to the grade of E-7, the rank he held before he was tried and found not guilty of nearly all of the charges against him.

. . .

The United States military justice system helps ensure good order and discipline for our millions of uniformed military members and holds to account those who violate the Uniform Code of Military Justice. Due in part to this system, we have the most disciplined, most effective, most respected, and most feared fighting force in the world.

The President, as Commander-in-Chief, is ultimately responsible for ensuring that the law is enforced and when appropriate, that mercy is granted. For more than two hundred years, presidents have used their authority to offer second chances to deserving individuals, including those in uniform who have served our country. These actions are in keeping with this long history. As the President has stated, “when our soldiers have to fight for our country, I want to give them the confidence to fight.”

Commutations and clemency were the #9 Military Justice Story of 2017 based on President Obama’s commutation of the death sentence for Private Loving and the sentence of confinement for 35-years for Private Manning. Both actions were taken in the last days of President Obama’s second term.

President Trump pardoned Army LT Behenna earlier this year (discussed here).

Last year we discussed presidential pardons for convicted wartime murderers, in this Scholarship Saturday post.

In 2009, then-Private First Class Bergdahl walked away from his combat outpost in Patika Province, Afghanistan. He was captured by the Taliban and held in captivity for nearly five years. He was recovered in a May 2014 trade for five Guantanamo Bay detainees. Ten months later he was charged with desertion with the intent to shirk important service and avoid hazardous duty in violation of Article 85(a)(2), and with misbehavior before the enemy in violation of Article 99.

Bergdahl eventually pleaded guilty to both offenses without a pretrial agreement. In sentencing his defense counsel specifically requested that the military judge sentence him to a dishonorable discharge, and Bergdahl made it clear that he personally believed that a dishonorable discharge was the appropriate punishment. The military judge gave him that and little more, adjudging a sentence of reduction to E-1, forfeiture of $1,000 pay per month for 10 months, and a dishonorable discharge. The convening authority approved the sentence after Bergdahl elected to not request clemency.

Nevertheless, having pleaded guilty, requested a dishonorable discharge, made clear that a dishonorable discharge was appropriate, and not requested clemency, on appeal Bergdahl claimed that endemic unlawful command influence (UCI) denied him a fair trial, fair post-trial processing, or the appearance thereof, and sought dismissal of the charges. The Army CCA rejected the claim and affirmed the findings and sentence in a published decision discussed here. Bergdahl then petitioned CAAF for review (discussed here).

Yesterday, CAAF granted that review:

No. 19-0406/AR. U.S. v. Robert B. Bergdahl. CCA 20170582. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:

WHETHER THE CHARGES AND SPECIFICATIONS SHOULD BE DISMISSED WITH PREJUDICE OR OTHER MEANINGFUL RELIEF GRANTED BECAUSE OF APPARENT UNLAWFUL COMMAND INFLUENCE.

Briefs will be filed under Rule 25.

Last term, in Hasan v. U.S. Army Court of Criminal Appeals, and United States, No. 19-0054/AR (CAAFlog case page), Major Hasan – the Fort Hood shooter and one of four current residents of the military’s death row – asked CAAF to grant him a writ of mandamus ordering all of the judges of the Army CCA to recuse themselves from his case.

The asserted basis for the mass recusal was that the Deputy Judge Advocate General of the Army (DJAG), Major General Risch, who evaluates the Chief Judge of the Army CCA, had previous involvement in the case as the Fort Hood SJA. CAAF heard oral argument on the petition on March 27, 2019, and then summarily denied it six days later, on April 2, ruling:

In this case, Petitioner has failed to demonstrate that he cannot obtain relief through alternative means. He may still make an administrative request to remedy the alleged source of bias, and of course, he is entitled to raise this issue in the ordinary course of appellate review. Further, Petitioner has failed to demonstrate a clear and indisputable right to the writ as the harm he asserts is entirely speculative at this stage of the proceedings. Therefore, we decline to exercise our authority under the [All Writs Act].

Two weeks ago Hasan filed two new writ petitions, and yesterday CAAF granted one in part, disqualifying one ACCA judge from the case:

No. 20-0009/AR. Nidal M. Hasan v. ACCA. CCA 20130781. On consideration of the petition for extraordinary relief (recusal of judges), it is ordered that the petition is granted as to Judge Walker and denied as to Judge Brookhart without prejudice to Petitioner’s right to raise the matters asserted in the normal course of appellate review.

No. 20-0010/AR. Nidal M. Hasan v. ACCA. CCA 20130781. On consideration of the petition for extraordinary relief (appointment of a chief judge), it is ordered that the petition is denied without prejudice to Petitioner’s right to raise the matters asserted in the normal course of appellate review.

Here’s a link to a Washington Times story about a military judge’s ruling in an Air Force general court-martial, dismissing sexual assault charges with prejudice because the convening authority (a 2-star) “directed the trial counsel not to enforce their subpoenas, [resulting in] the government abdicat[ing] its obligations to the justice system.” The military judge’s 13-page ruling is available here. Reportedly, the prosecution will not appeal the ruling.

Additionally, here’s a link to a story about the arrest of Coast Guard Seaman Ethan Tucker for the murder a fellow Coast Guardsman in Alaska.

In other news, the Solicitor General filed a reply brief in support of the Government’s petition for certiorari in Briggs. The brief is available here.

Finally, CAAF’s 2019 orientation for new attorneys (an annual event) will be on Tuesday, September 24, 2019 at 9:30 a.m. Additional details available here.

In 2009, then-Private First Class Bergdahl walked away from his combat outpost in Patika Province, Afghanistan. He was captured by the Taliban and held in captivity for nearly five years. He was recovered in a May 2014 trade for five Guantanamo Bay detainees. Ten months after his recovery, in March of 2015, Bergdahl (then a Sergeant) was charged with desertion with the intent to shirk important service and avoid hazardous duty in violation of Article 85(a)(2), and with misbehavior before the enemy in violation of Article 99.

Bergdahl eventually pleaded guilty to both offenses without a pretrial agreement. Then, in sentencing, the defense specifically requested that the military judge sentence Bergdahl to a dishonorable discharge, and Bergdahl made it clear that he believed that a dishonorable discharge was the appropriate punishment. The military judge sentenced Bergdahl to reduction to E-1, forfeiture of $1,000 pay per month for 10 months, and a dishonorable discharge. The Army CCA affirmed the findings and sentence last month, in a published decision discussed here.

On Monday CAAF docketed a petition for grant of review in Bergdahl’s case. The supplement to the petition is available here.

The supplement raises four issues:

I. WHETHER THE CHARGES AND SPECIFICATIONS SHOULD BE DISMISSED WITH PREJUDICE OR OTHER MEANINGFUL RELIEF GRANTED BECAUSE OF APPARENT UNLAWFUL COMMAND INFLUENCE.

II. WHETHER THE CHARGES WERE UNREASONABLY MULTIPLIED.

III. WHETHER THE MILITARY JUDGE MISAPPLIED THE SPECIFIC INTENT ELEMENT OF SHORT DESERTION.

IV. WHETHER THE MISBEHAVIOR BEFORE THE ENEMY SPECIFICATION STATES AN OFFENSE.

One particularly interesting part of the supplement is this passage, in which Bergdahl’s decision to abandon his post and assigned duties is characterized as bravery:

Charging both desertion and misbehavior was also an exaggeration. Short desertion involves a conscious purpose to shirk or avoid one’s duty. SGT Bergdahl’s absence from guard duty was a collateral consequence of his conscious purpose to travel to another base within the command. Misbehavior charges quintessentially involve cowardice, whereas this case involves a form of (misplaced) bravery.

Supp. at 22 (emphasis omitted).

Last week I noted that the Chief of Naval Operations ordered a review of the leadership and performance of the Navy JAG Corps.

USNI News provides details here, including a copy of the CNO’s memo ordering the review (reproduced after the jump).

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In the wake of the acquittal of Navy Special Operations Chief Edward Gallagher of the most serious charges against him (noted here), the Secretary of the Navy has revoked 10 awards given to the prosecution team in connection with the case. Reuters reports here that:

The move coincided with tweets from President Donald Trump repeating his support for Special Operations Chief Edward Gallagher and directing Spencer to rescind awards that were “ridiculously given” to prosecutors who, according to Trump, “lost the case” against Gallagher. . . .

A total of 10 military awards – seven Navy Achievement Medals and three letters of commendation – recently given to military prosecutors for their work on the Gallagher case were revoked, Navy officials told Reuters. Those officials said they did not know if Spencer acted on Trump’s orders or took action before the president’s tweets.

In perhaps-related other news, the Navy Times reports here that yesterday the Chief of Naval Operations took control of companion cases and ordered a review of the leadership and performance of the Navy JAG Corps:

“Additionally, as part of an ongoing assessment of Judge Advocate General’s (JAG) Corps performance, Richardson directed Vice Chief of Naval Operations Adm. Bob Burke to conduct a Comprehensive Review into the leadership and performance of the JAG Corps. This review is intended to ensure the JAG Corps provides exemplary support to the Navy and the nation,” the statement concluded.

The Marshall Project reports here on the military special victim counsel programs. The piece focuses on the story of former Army Lieutenant Angela Bapp, who testified before House and Senate committees earlier this year (video available here).

Finally, Stars and Stripes reports here on the Solicitor General’s petition for certiorari in Briggs (discussed here). The final two paragraphs in the report are:

Don Christensen, president of Protect Our Defenders, an advocacy group for military sexual assault survivors, said he hoped the Supreme Court would hear the case and reverse the military court.

“That would be good for the CAAF. It would be good for them to be slapped down a little bit,” he said. “This was a devastatingly bad opinion.”

In a published decision issued yesterday and available here, a three-judge panel of the Army CCA affirms the findings and sentence in the Bergdahl case.

In 2009, then-Private First Class Bergdahl walked away from his combat outpost in Patika Province, Afghanistan, and was captured by the Taliban and held in captivity for nearly five years. He was recovered in a May 2014 trade for five Guantanamo Bay detainees. Ten months later, in March of 2015, Bergdahl (then a Sergeant) was charged with desertion with the intent to shirk important service and avoid hazardous duty in violation of Article 85(a)(2), and misbehavior before the enemy in violation of Article 99.

Bergdahl’s case made our top ten list two years in a row, as the #8 Military Justice Story of 2015 and 2016, and the processing of the case through the military justice system was bizarre: A protective order prohibited Bergdahl’s defense team from releasing information to the press before trial, Bergdahl confessed to desertion, his recorded conversations with filmmaker Mark Boal were the nucleus for season 2 of NPR’s Serial podcast (and Boal sought to avoid a subpoena), Bergdahl’s defense team went 0-7 at CAAF, and motions to dismiss were filed over and over and over again.

Eventually, however, Sergeant Bergdahl pleaded guilty to both offenses without a pretrial agreement. Then, in sentencing, the defense specifically requested that the military judge sentence Bergdahl to a dishonorable discharge, and the CCA’s opinion noted that Bergdahl “made clear to the court that he believed the appropriate punishment was a dishonorable discharge.” Slip op. at 6. The military judge sentenced Bergdahl to reduction to E-1, forfeiture of $1,000 pay per month for 10 months, and a dishonorable discharge.

During that time, Bergdahl’s case captured the attention of the late Senator John McCain, and of then-candidate and later-President Donald Trump. Specifically, Senator McCain threatened hearings if Bergdahl received no punishment, and President Trump made numerous statements and tweets about the case, both before and after his election, including calling Bergdahl a traitor and calling the adjudged sentence “a complete and total disgrace to our Country and to our Military.” Slip op. at 6 (punctuation in original).

After Bergdahl was sentenced, the defense matters to the convening authority that included a post-sentencing tweet from President Trump but requested only that the case be sent to a different convening authority for possible clemency. The defense did not request sentence reduction. The convening authority did not transfer the case, and approved the findings and sentence as adjudged.

Nevertheless, having pleaded guilty, requested a dishonorable discharge, made clear that a dishonorable discharge was appropriate, and not made any request for clemency, on appeal Bergdahl “contend[ed that] unlawful command influence [UCI] was so endemic to [his] trial and the post-trial processing that [he] was denied a fair trial, or fair post-trial processing, or the appearance thereof.” Slip op. at 1.

The CCA rejected the claim in yesterday’s decision, with a majority of the panel reaching the unsurprising conclusion that, even considering the cumulative impact of all of the potential UCI:

the cumulative effect could not reasonably be perceived by a disinterested member of the public as improper command influence or otherwise indicative of an unfair proceeding.

Slip op at 18-19.

One judge dissents, however, writing that:

The active duty Lieutenant Colonel Judge Advocate Preliminary Hearing Officer, who presided over appellant’s extensive Article 32 proceeding, recommended referral of appellant’s case to a “straight special” court-martial not empowered to adjudge any discharge, and further recommended no jail time. Major General Dahl, who led a team of over twenty investigators and lawyers during the pretrial AR 15-6 investigation into appellant’s case likewise indicated that jail time would be “inappropriate.” In light of these recommendations from senior leaders who looked closely at appellant’s case, the military judge’s ultimate sentence was hardly a windfall, and it would have been conceivable that the convening authority could have provided additional clemency. Contrary to the majority’s holding, I find that UCI infected that critical post-trial process.

Slip op. at 28-29. Accordingly, and despite the fact that Bergdahl specifically requested a dishonorable discharge, agreed that a dishonorable discharge is appropriate, and did not request mitigation of the dishonorable discharge from the convening authority, the dissenting judge believes that:

Setting aside appellant’s dishonorable discharge would bring his current sentence into line with these two recommendations, and thus purge the taint of post-trial UCI that emanated from the President’s day-of-sentencing tweet.

Slip op. at 29.

I’m far behind on my coverage of the opinions from the CCAs and of court-martial news, but two big developments this week warrant mention.

First, the court-martial of Navy Special Operations Chief Edward Gallagher – that I previously mentioned here in connection with some questionable conduct by the prosecutor (leading to the prosecutor’s removal from the case) – ended this week, with Gallagher acquitted of everything except for one specification of violation of Article 134 for wrongfully posing for an unofficial picture with a human casualty. According to reports from Fox News and NPR, Gallagher was sentenced to reduction to E-6 (from E-7; in line with the prosecution’s request) and the maximum authorized confinement for four months and forfeiture of pay for four months. Due to pretrial confinement credit, however, Gallagher will not serve any additional confinement.

Second, a three-judge panel of the Navy-Marine Corps CCA issued a massive, 57-page, 21,000+ word opinion in United States v. Wilson, No. 201800022 (N.M. Ct. Crim. App. Jul. 1, 2019) (link to slip op.), in which it finds a conviction of sexual abuse of a child to be factually insufficient. Writing for a unanimous panel, Senior Judge Tang explains:

Carefully evaluating all of BP’s [the child] testimony and statements admitted at trial, we find that BP’s statements were fatally inconsistent and wholly irreconcilable. Based on the evidence, we cannot discern how BP contends the appellant touched her, when he did so, or how many times she contends the abuse occurred. Faced with multiple descriptions of possible contacts—only some of which are consistent with guilt—we cannot find guilt beyond a reasonable doubt based solely on BP’s statements.

We next look to the other evidence admitted at trial for corroboration. We do not find evidence sufficient to overcome the infirmities in BP’s statements. There were no witnesses, physical evidence, or admissions of guilt by the appellant.

We next consider the testimony of several preeminent expert witnesses in the field of child psychology, maltreatment, and forensic interviewing. Most were presented by the government. The experts’ testimony assists us in understanding the limitations in children’s memories and children’s susceptibility to suggestion. But the expert testimony does nothing to resolve our genuine misgivings with the evidence. Rather, the testimony of the government’s expert witnesses only further diminishes the reliability of BP’s forensic inter-view and trial testimony.

Slip op. at 29 (emphasis in original). The analysis concludes:

We do not expect perfect consistency or flawless oratory from a six-year-old child. However, the government’s own experts indicated that, at least in July 2016, BP was capable of providing a narrative clearly describing her abuse but did not. And the government’s own experts found infirmities in the interview technique and a lack of clarity in BP’s statements. The expert testimony cannot reasonably explain the inconsistencies between all of BP’s statements.

. . .

We have carefully reviewed the government’s arguments on the evidence as they view it. We do not find that the proof is “such as to exclude . . . every fair and rational hypothesis except that of guilt.” Loving, 41 M.J. at 281.

Slip op. at 52-53.

CAAF decided the Marine Corps case of United States v. Hutchins, 78 M.J. 437, No. 18-0234/MC (CAAFlog case page) (link to slip op.), on Wednesday, May 29, 2019. In its third review of this long-running prosecution, CAAF finds that no issue of ultimate fact was determined by Hutchins’ acquittal of certain offenses in his first trial and also that the prosecution could prove all the elements of the offenses at his second trial without invoking the elements of the acquitted offenses. Accordingly, the doctrine of issue preclusion – as embodied by the Double Jeopardy Clause of the Fifth Amendment and codified in Rule for Courts-Martial 905(g) – does not apply, and CAAF affirms the decision of the NMCCA that affirmed the findings and sentence.

Judge Ohlson writes for a unanimous court.

Sergeant (E-5) Hutchins was tried twice by general court-martial for his participation in a 2006 kidnap-murder conspiracy in Iraq that is colloquially known as the Hamdania incident. His first court-martial was in 2007 and resulted in convictions of conspiracy, false official statement, unpremeditated murder, and larceny, but acquittals of other related offenses. Hutchins was sentenced to reduction to E-1, a reprimand, confinement for 15 years, and a dishonorable discharge, however the convening authority disapproved the reprimand and all confinement in excess of 11 years.

A roller-coaster of appellate litigation followed. The Navy-Marine Corps CCA initially reversed Hutchins’ convictions in 2010 (decision analyzed here), but CAAF reversed the CCA’s decision in 2011 (noted here). On remand in 2012, the NMCCA affirmed the findings and the sentence (noted here). But CAAF reversed that decision too, and then it set aside Hutchins’ convictions and authorized a rehearing in United States v. Hutchins, 72 M.J. 294 (C.A.A.F. 2013) (CAAFlog case page).

The rehearing occurred in 2015, and Hutchins was again convicted of conspiracy, murder, and larceny. Those convictions, however, implicated conduct that that was also implicated by the offenses that Hutchins’ was acquitted of at the first trial. Specifically, the prosecution was allowed to introduce evidence implicating the acquitted offenses in order to prove that Hutchins had a plan to commit the charged offenses (that he had been convicted of committing at the first trial). Hutchins claimed that violated the constitutional prohibition against double jeopardy on the basis of collateral estoppel or issue preclusion (different names for the same thing), and CAAF granted review to determine:

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.

Judge Ohlson’s opinion for the unanimous CAAF holds that issue preclusion does not apply to the facts of Hutchins’ case and so the military judge could properly apply Mil. R. Evid. 403 and 404(b) to the prosecution’s evidence that implicated the acquitted offenses. Furthermore, because Hutchins “does not meaningfully contest the military judge’s application of those rules on their own terms,” CAAF does not review the military judge’s underlying ruling admitting the evidence.

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A reader posed an interesting question in an email. Has this happened before?

Military prosecutors in the case of a Navy SEAL charged with killing an Islamic State prisoner in Iraq in 2017 installed tracking software in emails sent to defense lawyers and a reporter in an apparent attempt to discover who was leaking information to the media, according to lawyers who told The Associated Press that they received the corrupted messages.

The tracking software appears to be “an unusual logo of an American flag with a bald eagle perched on the scales of justice” included in an email from the lead prosecutor, Navy Commander Christopher Czaplak. Images in email are routinely used for tracking purposes, though the image files are typically transparent. Navy technology, it seems, is less subtle.

The accused is Navy Special Operations Chief Edward Gallagher. He was charged with premeditated murder (in connection with combat operations), aggravated assault, assault with a dangerous weapon, wrongful use and possession of controlled substances, and various violations of Article 134, though a military judge recently dismissed two of the charges. Gallagher was in pretrial confinement until President Trump intervened.

In January, Gallagher’s brother wrote this piece about the case, asserting in part:

The most infuriating part of this whole charade for our family has been the actions of the Navy, in particular NCIS and Navy prosecutors.

From the beginning, it’s been a coordinated smear campaign so they could make themselves look good by painting him as a monster. He takes prescribed pain medication for a damaged disc in his back, so they threw in a drug charge. He vented to friends about how this whole investigation is a farce; suddenly he’s obstructing justice. Prosecutors actually had the gall to use a text message argument between him and his wife about leaving a movie theatre early to insinuate spousal abuse. These are the steps the prosecution is taking to grasp at anything—literally anything—to smear the name of a good man.

This tactic, of painting Eddie as a villain, is a playbook used by prosecutors time and again to distance themselves from responsibility, muddy the waters, and convince you emotionally that he must be guilty.

Multiple news agencies report that President Trump issued a pardon to former Army Lieutenant Michael Behenna. Fox News quotes White House Press Secretary Sarah Sanders:

White House Press Secretary Sarah Sanders cited “broad support” for Michael Behenna, of Edmond, Okla., “from the military, Oklahoma elected officials, and the public” — including 37 generals and admirals, along with a former Pentagon inspector general — as the reason for Trump’s clemency grant. Sanders also said Behenna had been a “model prisoner” while serving his sentence.

“In light of these facts, Mr. Behenna is entirely deserving of this Grant of Executive Clemency,” Sanders concluded.

In April 2008, Behenna was a Platoon Leader deployed to Bayji, Iraq (north of Baghdad). That month he shot and killed a detainee named Ali Mansur. The shooting occurred during an unauthorized interrogation in a desert culvert, during which Behenna stripped Mansur naked and threatened him with a pistol. Behenna was charged with murder, and at court-martial in March 2009 he claimed self-defense, asserting that Mansur had thrown a piece of concrete at him and tried to grab his pistol just before the shooting. Nevertheless, members convicted Behenna of unpremeditated murder and assault consummated by a battery, and sentenced him to a dismissal, total forfeitures, and confinement for 25 years., The convening authority later reduced the confinement 20 years, and the clemency and parole board reduced it to 15 years.

CAAF affirmed the convictions in United States v. Behenna, 71 M.J. 228 (C.A.A.F. 2012) (CAAFlog case page), holding that Behenna lost and did not regain the right to self-defense as a matter of law during the encounter, and that the prosecution’s late disclosure of a potentially-exculpatory opinion held by a prosecution expert was harmless. The Supreme Court denied certiorari in 2013. Behenna was subsequently granted parole and released from confinement in 2014, and became a ranch hand.

Behenna’s pardon isn’t President Trump’s first pardon for a former servicemember. The President gave Kristian Saucier a pardon for his conviction of violating 18 U.S.C. § 793(e) for illegally retaining photographs of classified areas of a nuclear submarine.

President Obama also granted clemency, including the commuting the death sentence of Private Loving and commuting the 35-year sentence of Private Manning. Loving murdered two taxicab drivers in Killeen, Texas (near Fort Hood), and attempted to murder a third, on December 12, 1988. Manning stole hundreds of thousands of classified documents and gave them to Wikileaks. Loving’s sentence was commuted to life without the possibility of parole and Manning’s was commuted to confinement until May 17, 2017 (effectively a 7-year term). Both actions were taken on January 17, 2017; three days before the end of Obama’s second term. Loving remains in post-trial confinement, while Manning is newly confined – and has been for the past two months – for contempt of court.

Commutations & Clemency was the #9 Military Justice Story of 2017, and we discussed Presidential pardons for convicted wartime murders last year, in this Scholarship Saturday post.

Last month CAAF heard oral argument on whether to grant a writ of mandamus to Army Major Hasan – who was sentenced to death for 13 specifications of murder and 32 specifications of attempted murder (the #2 Military Justice Story of 2013) – and then CAAF summarily denied the request. Last week CAAF denied a second requested writ:

No. 19-0053/AR. Nidal M. Hasan, Petitioner v. United States Army Court of Criminal Appeals, Respondent and United States, Real Party in Interest. CCA 20130781. Appellate defense counsel petitioned this Court for extraordinary relief in the nature of a writ of mandamus, seeking access to matters that were sealed by the military judge at trial as being privileged between Major Hasan and his standby counsel.[1] In two decisions, the United States Army Court of Criminal Appeals denied appellate defense counsel access to these sealed privileged materials because appellate defense counsel admitted that Major Hasan had not authorized them to review those documents. United States v. Hasan, No. ARMY 20130781 (A. Ct. Crim. App. July 6, 2018) (order); United States v. Hasan, No. ARMY 20130781 (A. Ct. Crim. App. Oct. 16, 2018) (order).

To prevail on a writ of mandamus, the petitioner must show that: “(1) there is no other adequate means to attain relief; (2) the right to issuance of the writ is clear and indisputable; and (3) the issuance of the writ is appropriate under the circumstances.” Hasan v. Gross, 71 M.J. 416, 418 (C.A.A.F. 2012) (citing Cheney v. United States Dist. Court for D.C., 542 U.S. 367, 380-81 (2004)). Appellate defense counsel failed to establish (2).

We find unpersuasive appellate defense counsel’s argument that issuance of the writ is clear and indisputable under Rule for Courts-Martial 1103A. Although that rule does not except attorney-client privileged material from its ambit, neither does it include it. On consideration of the petition and the briefs of the parties, as appellate defense counsel failed to establish a clear and indisputable right to the writ it is ordered that the petition is denied.

[1] Although captioned as Hasan v. United States Army Court of Criminal Appeals, it appears that Major Hasan has not authorized this petition, as he has not waived his attorney-client privilege to these materials.

Additionally, on Monday CAAF ordered supplemental briefs in the Army case of United States v. Stout, No. 18-0273/AR (CAAFlog case page):

No. 18-0273/AR. U.S. v. Norman R. Stout. CCA 20120592. On consideration of the briefs of the parties on the issue granted on August 6, 2018, and oral argument held on December 4, 2018, it is ordered that the parties file supplemental briefs on the following additional issues:

I. WHETHER UNITED STATES v. BROWN, 4 C.M.A. 683, 16 C.M.R. 257 (1954), IS NOT CONTROLLING IN THIS CASE BECAUSE THE DECISION PREDATES THE PROMULGATION OF THE APPLICABLE VERSION OF R.C.M. 603(d).

II. WHETHER THE APPLICABLE VERSION OF R.C.M. 603(d) IS CONTRARY TO AND INCONSISTENT WITH THE APPLICABLE VERSION OF ARTICLE 34(c), UCMJ, AND THEREFORE VOID TO THE EXTENT IT PROHIBITS MAJOR CHANGES, BEFORE REFERRAL, TO CHARGES AND SPECIFICATIONS THAT WERE AMENDED TO “CONFORM TO THE SUBSTANCE OF THE EVIDENCE CONTAINED IN THE REPORT OF THE INVESTIGATING OFFICER.” ARTICLE 34(c), UCMJ, 10 U.S.C. § 834(c) (2012).

The briefs of the parties shall be filed concurrently within 15 days of the date of this order.

CAAF originally granted review of one issue questioning whether changes to the time frame of three specifications were proper, and it heard oral argument on December 4, 2018.

On Tuesday, just six days after hearing oral argument, CAAF summarily denied Major Hasan’s petition (CAAFlog case page) for a writ of mandamus ordering the judges of the Army Court of Criminal Appeals to disqualify themselves from his case.

No. 19-0054/AR. Nidal M. Hasan, Petitioner v. United States Army Court of Criminal Appeals, Respondent and United States, Real Party in Interest. CCA 20130781. On consideration of the petition for extraordinary relief in the nature of a writ of mandamus, the briefs of the parties, and oral argument, we note that we have the authority to issue extraordinary writs in aid of our jurisdiction pursuant to the All Writs Act (AWA), 28 U.S.C. § 1651(a) (2012). United States v. Denedo, 556 U.S. 904, 911 (2009). In this death penalty case, we conclude that we have the jurisdiction to issue the requested writ. See In re Mohammad, 866 F.3d 473, 475 (D.C. Cir. 2017) (noting that federal courts of appeals may issue writ under AWA now to protect exercise of its appellate jurisdiction later); see also Article 67(a)(1), Uniform Code of Military Justice, 10 U.S.C. § 867(a)(1) (2012) (providing jurisdiction for this Court over all cases in which the sentence, as affirmed by a Court of Criminal Appeals, extends to death).

However, before we may issue a writ of mandamus, three conditions must be satisfied: (1) the petitioner must demonstrate that there are no other adequate alternative means to obtain the desired relief, thus ensuring that the writ is not used as a substitute for the regular appeals process; (2) the petitioner must demonstrate a clear and indisputable right to the writ; and (3) this Court must be convinced, given the circumstances, that the issuance of the writ is warranted. Cheney v. United States Dist. Court for D.C., 542 U.S. 367, 380-81 (2004).

In this case, Petitioner has failed to demonstrate that he cannot obtain relief through alternative means. He may still make an administrative request to remedy the alleged source of bias, and of course, he is entitled to raise this issue in the ordinary course of appellate review. Further, Petitioner has failed to demonstrate a clear and indisputable right to the writ as the harm he asserts is entirely speculative at this stage of the proceedings. Therefore, we decline to exercise our authority under the AWA.

Accordingly, it is ordered that the petition is denied without prejudice to Petitioner’s right to raise the issue asserted during the normal course of appellate review.

79 M.J. 29 (C.A.A.F. Apr. 2, 2019) (paragraphing added).

Case Links:
Writ petition
Gov’t Div. Answer
Petitioner’s reply
Blog post: CAAF orders Gov’t Div. to re-brief
Gov’t Div. re-brief
Reply to re-brief
• Oral argument audio (wma)(mp3)
Blog post: Summary disposition

Last week Marine Staff Sergeant (E-6) Larrabee filed this federal lawsuit seeking declaratory relief that his court-martial conviction is unconstitutional. The suit cites the Declaratory Judgment Act, 28 U.S.C. §§ 2201–02, as the basis for the relief requested.

Larrabee completed 20 years of active duty service in 2015 and requested transfer to the Fleet Marine Corps Reserve (FMCR). The FMCR accepts enlisted Marines with more than 20 but less than 30 years of active duty service, and its purpose is “to maintain a ready manpower pool of trained Marines for recall and mobilization.” MCO 1900.16, para 7001.2. A Marine in the FMCR receives retainer pay (computed at the same rate as retired pay) until the Marine achieves 30 years of service, at which point the Marine may actually retire (by transferring to the retired list). See 10 U.S.C. § 8326. Personnel on the retired list are, of course, subject to court-martial jurisdiction. So too are members of the FMCR. See Article 2(a)(6).

Larrabee transferred to the FMCR on August 1, 2015. At the time of his transfer he was stationed in Iwakuni, Japan, which is a deployed location. Larrabee remained in Iwakuni and got a job managing local bars. Just three months after his transfer to the FMCR, Larrabee video-recorded himself sexually assaulting a woman at one of the bars; a place named Teaserz that is approximately 1000 feet from the gate of the nearby Marine Corps Air Station. The woman worked as a bartender at the bar. She was also the wife of an active-duty Marine sergeant stationed at the nearby Marine Corps Air Station.

The woman reported the assault to military authorities. They interviewed Larrabee, he made a number of admissions, and he was eventually charged with numerous offenses. He pleaded guilty (pursuant to a pretrial agreement) at a general court-martial composed of a military judge alone to sexual assault and indecent recording in violation of Articles 120 and 120c, and was sentenced to confinement for eight years, a reprimand, and a dishonorable discharge.

On appeal, Larrabee challenged the existence of court-martial jurisdiction over him as a member of the FMCR. The NMCCA summarily rejected the challenge in an unpublished opinion available here, and CAAF summarily affirmed, 78 M.J. 107 (C.A.A.F. Aug. 22, 2018). Larrabee then petitioned for certiorari, the Solicitor General opposed cert. on numerous grounds, and the petition was denied last month. Larrabee’s federal suit follows.

The suit faces incredibly long odds of success, not just because the facts of Larrabee’s case raise uniquely military concerns and the Declaratory Judgment Act is an odd tool to try and win reversal of a court-martial conviction that is final and conclusive, but also because Larrabee’s complaint makes a number of remarkably dubious assertions.

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