CAAFlog » Court-Martial News

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.

In the justice delayed category we have this report from Marine Corps Times about unresolved alleged miclsconduct by the Marine Corps head of the Joint Non-Lethal Weapons Directorate in Quantico, Va. Apparently this misconduct came to light in March 2013 and resulted in Col. Tracy Tafolla’s removal as commander of the directorate. But no action has been taken since that time. The actions fall into the gray area between sexual harassment and sexual assault. But if Colonel Taffola was Staff Sergeant Taffola, I think the chances are high there would already be preferred charges. Whether that’s the right result or not is a different question and one you can’t answer without more facts.  Update:  A commenter noted that at the end of the article the Marine Corps spokesman stated that NJP proceedings are not released to the public (which is actually not true, the services release that info when it suits their needs): “It’s possible, though, that he will receive nonjudicial punishment as a result of the accusations, or that he has already accepted an NJP. Runyon said that because NJP proceedings are not open to the public, he could not release any information about that process.”  So justice may not be delayed as NJP may have been imposed.  So there you go, maybe justice has not been delayed and this O-6 has received NJP for this conduct.

The decision in Klay et al. v. Panetta et al., No. 13-5081, slip op. (D.C. Cir. Jul 18, 2014), released today affirms the DC District Courts dismissal of Bivens claims against the military chain of command by a group of servicemembers that “allege that they were raped, sexually assaulted, or sexually harassed by their fellow Sailors and Marines, only to suffer retaliation from their superiors for reporting their plight.” The COurt affirms on grounds we’ve previously discussed from Chappell v. Wallace, 462 U.S. 296 (1983), here and here.

McClatchy report here.  Our prior coverage here (DDC dismissal) and here (use of Klay case in the Invisible War). Judges Rogers, Griffith, and Srinivasan file dthe opinion, with Judge Griffith filing a concurring opinion.  His concurrence takes a shot at counsel for the petitioners for raising a claim that SecDef Rumsfeld failed to follow an Act of Congress without a factual basis for it.

 

From Stars and Stripes, here:

The Army has issued a formal reprimand for misconduct to its former top sex-crimes prosecutor after investigating a complaint that he kissed and groped a female officer while attending a conference on sexual-assault prevention, according to Army officials.

Lt. Col. Joseph “Jay” Morse received the reprimand in late June, officials said, four months after the Army received the complaint and suspended him from his job as supervisor of the Army’s special-victim prosecutors.

Morse has apparently notified the Army that he plans to retire.  Can things get any worse on this front . . . did I actually type that?  H/t JG

Much coverage of Sergeant Bowe Bergdahl’s retention of former NIMJ President Eugene Fidell, here (NBC), here (ABC), and here (Fox). Bergdahl is reportedly working a desk job at Ft. Sam Houston in San Antonio after finishing reintegration training for former POWs.

Bergdahl matter will have a two-star investigating officer, see DoD press release here and Army Times coverage here.  The statements says:

The Army has initiated its investigation into the facts and circumstances surrounding the disappearance and capture of Sgt. Bowe R. Bergdahl from Combat Outpost Mest-Lalak in Paktika Province, Afghanistan on or about June 30, 2009. The Army has appointed as the investigating officer Maj. Gen. Kenneth R. Dahl, an Army officer with Afghanistan combat experience.

In related news, General Martins, former chief prosecutor for the military commissions told reporters that the five detainees traded for SGT Bergdahl could not have been prosecuted by the tribunals at Gitmo, Miami Herald coverage here.

On the Hill, Rep. John Kline introduced a bill to expand sexual assault victims services to reservists, Congressman’s website post here and here (The Hill).  The expanded services would make victim advocates available to reservists regardless of when, where or by whom they were sexually assaulted.  And the Senate also recently referred to the Veterans committee a bill that the House recently passed, HR 2527. The bill to provide counseling and other services to servicemembers that suffered sexual trauma during inactive duty or training, The Hill coverage here.

Continued testimony in the shadowy FBI investigation that led them to question Gitmo detainee defense team support staff members without disclosing the investigation to defense counsel.  Miami Herald coverage here.

As tipsters and commenters have been reporting, Marine Corps Times, here, is running a story that says the prosecutor that oversaw the NCIS raid of Marine Corps defense offices at Camp Pendleton was removed from his job (prior coverage here and here).  It also notes that at least one and possibly other Marine Corps’ trial judges ruled that the “search on defense offices, instigated and overseen by the prosecution, constituted apparent unlawful command influence . . . .” The story includes pictures of the defense counsel office raid at Camp Pendleton  and this piece of information as well:

The attorneys prosecuting on behalf of the U.S. government called for the May 2 search with the intent of unearthing a cell phone containing evidence in the case of Marine Sgt. Rigo Betancourt, accused of drug-related crimes. The defense team on the case provided text messages from the phone to prosecuting attorneys, but refused to turn over the phone itself without a judicial order. The prosecutors then obtained the equivalent of a search warrant from Col. Tracy King, then-commander of Combat Logistics Regiment 15 and the designated area commander. In the ensuing two-and-a-half-hour armed search, investigators unearthed the phone in question within minutes, but continued to scour the remaining office spaces, where material for many other active cases was kept.

The story alerts us that Marine Corps trial judge Lt. Col. Chris Thielemann also recently issued a veiled reprimand of defense counsel for their response to the raid:

Thielemann’s ruling in the Miramontes case also contained a veiled reprimand for senior Marine defense attorney Lt. Col. Clay Plummer, who denounced the office search to The Associated Press shortly after it took place, calling it “unacceptable” and “crazy.” The judge recommended that a decision be made on whether Plummer’s comments violated a rule prohibiting “extra-tribunal statements,” and said a ruling on the ethical propriety of any of the defense attorneys’ actions should be made by the court’s Rules Counsel or the judge presiding over the Betancourt case.

I’ve read the JAG Corps’ PR Instruction and I would say Judge Thielemann is unnecessarily recommending a referral to Rules Counsel.  With regard to statements in response to information in the public domain through the actions of others:

Notwithstanding paragraphs a and b(l) through (7), a covered attorney may make a statement that a reasonable covered attorney would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the covered attorney or the attorney’s client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.

JAGINST 5803.1D, Rule 3.6(d).  Not knowing all the facts, in fact knowing only a tiny sliver of them, I can’t say there was or was not a violation.  But, particularly in light of the UCI ruling(s), what defense counsel seemed to be doing was attempting to mitigate the effects of the publicity about the raid.  Prior coverage of the ABA’s statement on the raid, and attorney-client privilege issues, here.

The suspect in the stabbing at Naval Medical Center Portsmouth is being handed over to Navy authorities after fleeing the base before the base was locked down reports WAVY TV 10 here. Another suspect who may have helped the PO3 Harwell escape is being questionned.

I don’t even know what to say about the USCGA’s decision not to prosecute a cadet at court-martial for entering a fellow cadets room while drunk and touching her on the leg, report here. The accused cadet said he went into the wrong room thinking it was his girlfriend’s room.