CAAFlog » Court-Martial News

The Washington Post reports here that:

Marine Maj. Mark Thompson — who has long ­insisted that he was falsely accused of having sex with two U.S. Naval Academy students — will face a court-martial on allegations that he lied repeatedly in an effort to prove his innocence.

Our prior coverage of the case is available here.

Coverage abounds of the recently filed appeal of PFC manning at the Army Court of Criminal Appeals, here (AP via Army Times), here (ABC News), here (AP via Stars&Stripes), and here (Wired)–yes, some of that is naval gazing.

Here is a link to the brief, all 209 pages, which features what it presents (at 34-44) as a seeming circuit split on application of  “exceeds authorized access” in the one specification of violating 18 U.S.C. § 1030(a)(1) (the Computer Fraud and Abuse Act (CFAA)).  The first argument doesn’t seem like a strong attack on the pre-trial punishment violations that Judge Lind remedied by awarding 112 days of additional pre-trial confinement credit.  And the RCM 1001(b)(4) argument is interesting in alleging that the parade of testimony concerning the potential impact of the leaks made by PFC Manning was not “directly relating to or resulting from the offenses”–though the argument focuses on “resulting from” and fails to discuss what the broader phrase “relating to” means.

It is difficult for me to comment on the legal and factual sufficiency arguments, but feel free to speculate if you have more information about the evidence than I do (or even if you don’t, which will likely happen).

Marine Major Mark Thompson, who faces new charges (discussed here) after he invited the Washington Post to look into his court-martial conviction (discussed here), elected to not participate in the Article 32 preliminary hearing in his case yesterday.

The Marine Corps Time reports (here) that:

Kevin McDermott, the civilian lawyer for Marine Corps Maj. Mark Thompson, called the hearing at Quantico Marine Corps Base a “show trial.” After Thompson was advised of his rights, he and his lawyers walked out of the hearing, making themselves “voluntarily absent,” in military jargon.

Additionally, the Washington Post reports (here) that:

Marine Maj. Mark Thompson’s friends warned him to leave his case alone. But he couldn’t, a fellow Marine later told investigators.

The former U.S. Naval Academy teacher was fixated on proving that he had been unfairly convicted in 2013 of having sex with two female midshipmen. So he brought his allegations of injustice to The Washington Post — a decision that led to revelations in the case and serious new charges against Thompson.

“I knew it was stupid. There were people who tried to talk him out of the Post article, but he wouldn’t hear it,” Maj. Michael Pretus told investigators in a recording played Friday at Thompson’s preliminary hearing in Quantico, Va. “He was on an obsession course. You couldn’t get him to talk about anything else.”

Yesterday, of course, was Friday the 13th.

In an opinion issued yesterday the Army CCA denies a Government appeal under Article 62 of a military judge’s ruling regarding defense access to classified information in the Bergdahl case.

The opinion is available here.

Washington Post reporter John Woodrow Cox – whose investigation of the court-martial prosecution of Marine Major Mark Thompson, formerly an instructor at the Naval Academy, yielded some ugly results (discussed here) – now reports that Major Thompson faces new charges:

After revelations about his case in The Washington Post, the military has now charged Thompson with one count of making a false official statement and another of conduct unbecoming an officer and a gentleman.

The full story is available here and includes this damaging admission:

Asked in January of this year why he had lied to authorities, Thompson described the immense pressure he faced after one of the women asserted that he’d raped her.

“I simply had to, when they were coming after me for 41 years,” Thompson said, “I can’t begin to say, you know, how terrifying that is.”

I noted the Washington Post’s investigation of the court-martial prosecution of Marine Major Mark Thompson, formerly an instructor at the Naval Academy, in this post, commenting that the results weren’t pretty.

The story still has legs, as reporter John Woodrow Cox wrote yesterday that the Military launches a new investigation into Marine major’s sexual misconduct case:

Following Washington Post revelations about Thompson, a Marine Corps prosecutor and an investigator met this week with one of his accusers, Sarah Stadler, to review the contents of her long-missing cellphone, she said.

“I can confirm that the Marine Corps is examining new evidence that has recently come to light as a result of the Washington Post article about Maj. Thompson’s case,” Rex A. Runyon, a Marine Corps spokesman, said in an email. “I cannot provide additional details as it is our policy not to discuss ongoing investigations.”

The court martial of Army Master Sgt Omar Velez Pagan began in Fayetteville, NC reprots the Fayetteville Observer here.  The Master Sgt. is accused of murderimg his mistress while assigned as a geo-bachelor in Panama.

The WaPo editorial board weighs in on the Sgt. Bowe Bergdahl case, here. From the editorial:

We agree with those who say that Mr. Bergdahl’s conduct in leaving his unit was wrong, that it put lives at risk and that, despite his psychological issues, he should be accountable. At the same time, the Army may have contributed to this debacle by enlisting a soldier it shouldn’t have. And even without formal accountability, he has already suffered horribly for his actions.

In our view, the military justice system will pass this test to the extent it tempers judgment with due consideration of everything the case reveals about human frailty — and with mercy.

I am sure this will ignite comments, so please be mindful of the comments policy.

Yesterday CAAF granted review of a Grostefon issue in an Army case:

No. 16-0301/AR. U.S. v. Luis G. Nieto. CCA 20150386.  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 personally asserted by Appellant:

WHETHER THE MILITARY JUDGE ERRED IN DENYING APPELLANT’S MOTION TO SUPPRESS THE EVIDENCE SEIZED FROM APPELLANT’S LAPTOP COMPUTER.

Briefs will be filed under Rule 25.

(emphasis added). This is the second Grostefon issue granted this term, the first being in United States v. Caldwell, No. 16-0091/AR (CAAFlog case page).

The Army CCA’s website is still not publicly accessible, so I don’t have a link to the CCA’s opinion (assuming it wasn’t a summary disposition). I will post the opinion if someone with access will email it to zack@caaflog.com

Additionally, yesterday CAAF denied the latest writ-appeal from Sergant Bergdahl:

No. 16-0339/AR. Robert B. Bergdahl v. United States. CCA 20160073.  On consideration of Appellant’s writ-appeal petition for review of the decision of the United States Army Court of Criminal Appeals on a petition for a writ of prohibition to stay the proceedings and Appellant’s motion for an order requiring Appellee to file and serve a transcript, it is ordered that said writ-appeal is denied and said motion is denied as moot.

This was the fourth trip to Judiciary Square by the Bergdahl defense team. The first, second, and third were all also unsuccessful.

The Bergdahl case (CAAFlog’s #8 military justice story of 2015) now has its own online repository of case-related documents called The Bergdahl Docket: bergdahldocket.wordpress.com

CAAFlog’s complete Bergdahl coverage is available at: www.caaflog.com/category/court-martial-news/sgt-bergdahl/

…and the results aren’t pretty.

https://www.washingtonpost.com/graphics/local/marine/

Our previous mentions of the case are here and here.

From CAAF’s daily journal for February 16:

No. 16-0339/AR. Robert B. Bergdahl, Appellant v. United States, Appellee. CCA 20160073. Notice is hereby given that a writ-appeal petition for review of the decision of the United States Army Court of Criminal Appeals on a petition for a writ of prohibition to stay the proceedings was filed under Rule 27(b) on this date.

For those keeping score, this is Bergdahl’s fourth trip to Judiciary Square. The first, second, and third were all unsuccessful.

This Stars and Stripes article discusses the case of Petty Officer 3rd Class Austin Greening, who is facing a court-martial for a homicide that was already adjudicated in state court. The reported rationale for the successive prosecution is that the sentence adjudged by the civilian court is too light:

During a the military equivalent of a preliminary hearing Friday, Lt. Adam Partridge said another trial is needed “in the interest of justice.” He also said the victim’s parents were “extraordinarily displeased” with the result of the civilian court process.

The prosecution arises out of a 2013 shooting that was prosecuted by Virginia authorities in 2014, leading to convictions of second degree murder and use of a firearm in commission of a felony (link to news report). However, the judge granted a post-trial motion for a new trial based on issues with the autopsy report (link to news report). The accused and the Commonwealth of Virginia then reached a plea agreement, with the accused pleading guilty to involuntary manslaughter and receiving a sentence of three years imprisonment with all but six months suspended (link to news report).

The case highlights the military’s non-adherence to the DOJ policy generally prohibiting successive federal prosecutions, known as the “Petite Policy.” The Petite Policy comes from the case of United States v. Petite, 361 U.S. 529 (1960), in which an individual was subjected to successive federal prosecutions in different Districts for offenses arising out of a single criminal transaction. At the Supreme Court, the Solicitor General stated:

it is the general policy of the Federal Government ‘that several offenses arising out of a single transaction should be alleged and tried together and should not be made the basis of multiple prosecutions, a policy dictated by considerations both of fairness to defendants and of efficient and orderly law enforcement.’

Petite v. United States, 361 U.S. at 530-531. Current DOJ policy is very specific on this point:

This policy precludes the initiation or continuation of a federal prosecution, following a prior state or federal prosecution based on substantially the same act(s) or transaction(s) unless three substantive prerequisites are satisfied: first, the matter must involve a substantial federal interest; second, the prior prosecution must have left that interest demonstrably unvindicated; and third, applying the same test that is applicable to all federal prosecutions, the government must believe that the defendant’s conduct constitutes a federal offense, and that the admissible evidence probably will be sufficient to obtain and sustain a conviction by an unbiased trier of fact. In addition, there is a procedural prerequisite to be satisfied, that is, the prosecution must be approved by the appropriate Assistant Attorney General.

United States Attorneys’ Manual (USAM), Chapter 9-2.031 (“Dual and Successive Prosecution Policy”).

The Army’s prosecution of Sergeant Robert Bowdrie (“Bowe”) Bergdahl (CAAFlog news page) for 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, is an obvious choice for this year’s Top Ten list.

In 2009 then-Private First Class Bergdahl walked away from his combat outpost in Patika Province, Afghanistan, and was subsequently 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 that a report by the House Armed Services Committee recently found “violated several laws.” Ten months later, in March of this year, Sergeant Bergdahl was charged with the desertion and misbehavior offenses. His case was recently referred for trial by general court-martial where he will face a maximum possible punishment of life without the possibility of parole.

These factors make Sergeant Bergdahl’s case worth of special attention, but it makes our Top Ten list because its processing through the military justice system is increasingly bizarre.

Read more »

In November, in this post, I noted two writ petitions in the Bergdahl case that sought to compel public access to documents introduced during the Article 32 preliminary hearing. One petition was filed by Sergeant Bergdahl, and the other was filed by a group of media organizations. The Army CCA rejected both petitions, findings that it did not have jurisdiction. CAAF has now affirmed the CCA’s decisions.

Read more »

Army Times report here. In includes this:

In his report, the investigating officer for the Article 32 recommended Bergdahl avoid jail time, Fidell previously told the media. Lt. Col. Mark Visger’s report to Abrams also recommended the case be decided at a special court-martial.

Soldiers facing special courts-martial can receive no more than a year in jail and no worse than a bad-conduct discharge; punishments regarding hard labor and pay forfeiture have similar restrictions.

Not mentioned is one particularly significant collateral consequence of an executed punitive discharge adjudged by a general court-martial:

The discharge or dismissal by reason of the sentence of a general court-martial of any person from the Armed Forces . . . shall bar all rights of such person under laws administered by the Secretary [of Veterans Affairs] based upon the period of service from which discharged or dismissed, notwithstanding any action subsequent to the date of such discharge by a board established pursuant to section 1553 of title 10.

38 U.S.C. § 5303(a) (emphasis added). See also the VA benefits issue of the Military Law Review (winter, 2012 ed.).