CAAFlog » Military Justice Scholarship

The law review at my alma mater recently published an article calling for an end to the Article 66(c) power of a court of criminal appeals to conduct a factual sufficiency review of a court-martial conviction. Matt C. Pinsker, Ending the Military’s Courts of Criminal Appeals De Novo Review of Findings of Fact, 47 Suffolk U. L. Rev. 471 (2014) (link to article). The author is a practicing criminal defense attorney who worked as an extern with the Army Government Appellate Division while studying for his LL.M.

The article asserts that the justifications for the CCA’s factual sufficiency review power no longer exist because:

Due to amendments to the UCMJ over the past fifty years, military trials now resemble civilian trials and are presided over at both special and general courts-martial by an independent and professional circuit of military judges with powers modeled after Article III judges. This has reduced the potential for command influence while increasing the professionalism of trials, thus mitigating the chances of legal error. Furthermore, the fact-finding power of the military’s courts of criminal appeals is actually an impediment to justice because it adds a considerable burden on the military’s already severely backlogged appellate system. Claims of factual insufficiency are frequently and easily made by appellate defense counsel, but are very time consuming for appellate prosecutors to respond to.

Pinsker, supra, at 472. The article makes numerous assertions that I think are a stretch, including claiming that there is “a powerful military [trial] judiciary,” id. at 487, and asserting that “the United States Supreme Court recognized the change from law officers to military judges has created an independent judiciary within the military,” id. at 487 (citing Weiss v. United States, 510 U.S. 163, 191-192 (1994) (Souter, J., concurring)). However, Chief Justice Rehnquist’s opinion of the Court in Weiss explained:

[T]he position of military judge is less distinct from other military positions than the office of full-time civilian judge is from other offices in civilian society. As the lead opinion in the Court of Military Appeals noted, military judges do not have any “inherent judicial authority separate from a court-martial to which they have been detailed. When they act, they do so as a court-martial, not as a military judge. Until detailed to a specific court-martial, they have no more authority than any other military officer of the same grade and rank.” Military appellate judges similarly exercise judicial functions only when they are “assigned” to a Court of Military Review. Neither military trial nor appellate judges, moreover, have a fixed term of office. Commissioned officers are assigned or detailed to the position of military judge by a Judge Advocate General for a period of time he deems necessary or appropriate, and then they may be reassigned to perform other duties. Even while serving as military trial judges, officers may perform, with the permission of the Judge Advocate General, duties unrelated to their judicial responsibilities. Whatever might be the case in civilian society, we think that the role of military judge is “germane” to that of military officer.

510 U.S. at 175-76 (1994) (citations omitted). I agree that military judge’s have a significant measure of independence (though the fleeting nature of their assignment is notable), but I don’t agree that military judges are “powerful” (particularly when their limited powers are compared to the powers of Article III judges, or even to the powers of a convening authority).

Another assertion that I question is that:

Claims of factual insufficiency place a very heavy burden on the government’s appellate attorneys. Answering the defense’s claim of factual insufficiency forces government attorneys to reargue the case on paper, which is a very time-consuming process. A government attorney has to go through hundreds, and sometimes thousands, of pages of the trial record to pick out evidence and witness testimony supporting the finding of guilt and rebutting the claims of the appellate defense attorneys. Depending on the length of the trial record and the specific nature of the claims of factual insufficiency, addressing this one assignment of error can easily take a government attorney days to complete, despite its high likelihood of futility.

Pinsker, supra, at 503. I doubt that factual insufficiency claims are so vague as to require Government counsel to engage in scavenger hunts for rebuttal evidence, and I can’t help but marvel at the author’s claim – in a single sentence – that factual insufficiency claims both have a high likelihood of futility and require comprehensive rebuttals. The author also sees a need “to discourage appellate defense counsels from alleging factual sufficiency assignments of errors they know are unlikely to succeed.” Id. at 504. This reads like an assertion that appellate defense counsel make frivolous claims.

Another part of the article asserts that service members facing court-martial enjoy greater due process protections than civilians facing civil prosecution, citing five examples: Article 31 rights, free appellate counsel, the Care inquiry, free mitigation experts, and clemency. Pinsker, supra, at 507-519. I think each of these examples is flawed, for the following reasons:

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Very interesting discussion going on over at Lawfare about the jurisdiction of military commissions and courts-martial in reference to the al-Bahul case at the DC Circuit. Here and here, friend o’ the blog and NIMJ advisor Steve Vladeck takes issue with the government’s briefing in al-Bahul. Prof. Peter Margulies amicus counsel in the case, defends the government and amicus position and argues, here, that “[i]n drafting Article III, the Framers did not intend to restrict Congress’s ability to establish commissions to try noncitizen belligerents with no U.S. ties engaged in armed conflict with the United States,” regardless of the charges against the accused.

As a result of the Art. 32 IO report, “Murder charges against Sgt. 1st Class Michael Barbera in the 2007 shootings of two deaf, unarmed brothers in Iraq have been dropped — at least for now — but he will face court-martial trial on two lesser charges, the Army announced Tuesday.”. Pa. Tribune Review report here.

In volume 63 of the Naval Law Review, Commander Robert P. Monahan, Jr., JAGC, USN, writes A Proposal to Conform Military Rule of Evidence 305 in light of the Supreme Court’s Holdings in Maryland v. Shatzer and Berghuis v. Thompkins, 63 Naval L. Rev. 67 (2014). Commander Monahan proposes modifying MRE 305(e)(3)(A) to incorporate the 14-day break in custody requirement from Maryland v. Shatzer, 559 U.S. 98, 110 (2010); modifying MRE 305(c)(4) to require an unambiguous invocation of the right to remain silent drawn from Berghuis v. Thompkins, 560 U.S. 370, 388-389 (2010); and modifying MRE 305(e)(1) and 305(e)(2) to permit implied waiver of the right to remain silent. This is a direct link to the beginning of the article in the complete volume of the Naval Law Review, hosted on the Navy’s website. This is a link to just the article, hosted on CAAFlog.

In the July volume of The Army Lawyer (link to full volume’s table of contents and articles), there are three notable articles:

  • Major Dane B. Getz, USAR, Closing the Gap in Access to Military Health Care Records: Mandating Civilian Compliance with the Military Command Exception to the HIPAA Privacy Rule, Army Law., July 2014, at 4 (direct link to article). Major Getz’s article reveals what I think is a disturbing institutionalized lack of respect for the protected nature of medical records. For example, the article considers a hypothetical situation where a “commander needs the NCO’s (non-commissioned officer’s] PHI [protected health information] as soon as possible to determine his continued fitness for duty and assess whether he may pose a danger to himself and others.” Id. at 5. Precisely what the commander (not a medical provider) will do with that information is unclear. Further, the article discusses the outrageous practice of issuing orders to Soldiers “to sign civilian medical release forms in their favor and/or turn over copies of their civilian PHI directly to commanders,” id. at 5 n.9, and labels Soldiers who wish to preserve their medical privacy as “medically non-compliant,” id. at 7 n.34.
  • Major Brent A. Goodwin, USA, Congress Offends Eisenhower and Cicero by Annihilating Article 60, UCMJ, Army Law., July 2014, at 23 (direct link to article). Major Goodwin’s articles discusses the changes to Article 60(c) in the FY14 NDAA and joins the debate over the meaning of the clemency limitations, ultimately agreeing with (though not discussing) my conclusion that in all cases the statute allows reduction of punishments that are not confinement for more than six months or a punitive discharge. Id. at 28. See this post.
  • Captain Jeremy R. Bedford, USA, Eligibility for VA Disability Compensation and Health Care Benefits for Army National Guardsmen Discharged with an Other Than Honorable Discharge, Army Law., July 2014, at 36 (direct link to article). Captain Bedford’s article concludes: “The interpretation of VA benefits eligibility in AR 135-178 needs to be revised to clarify that an ARNG’s [Army National Guard] OTH [administrative discharge under other than honorable conditions] will not affect the disability compensation and health care benefits to which Guardsman are entitled on the basis of a previous honorable active service deployment.” Id. at 39.

In the August volume of The Army Lawyer (link to full volume’s table of contents and articles), there are three notable articles:

  • Colonel James F. Garrett, USA, Colonel Mark “Max” Maxwell, USA, Lieutenant Colonel Matthew A. Calarco, USA, and Major Franklin D. Rosenblatt, USA, Lawful Command Emphasis: Talk Offense, Not Offender; Talk Process, Not Results, Army Law., August 2014, at 4 (direct link to article). The article coins a new term: lawful command emphasis. “Lawful command emphasis is, in short, the appropriate actions commanders or staff members can take within the military justice process to ensure good order and discipline is maintained within the ranks.” Id. at 6.
  • Major Matthew E. Wright, USA, A Distinction with a Difference: Rule for Courts-Martial 304 Pretrial Restraint and Speedy Trial, Army Law., August 2014, at 22 (direct link to article). Major Wright’s article discusses “the spectrum of restraint [that] begins with no restraint and progresses through conditions on liberty, restriction, arrest, restriction tantamount to confinement, and finally, confinement. A progressively onerous array of collateral consequences linked to the severity of the restraint imposed provides strong incentives for commanders to remain as close to the beginning of this spectrum as possible.” Id. at 25.
  • Colonel James W. Herring, Jr., USA, A View from the Bench: Make the Routine, Routine (U.S. Army Legal Services Agency Trial Judiciary Note), Army Law., August 2014, at 41 (direct link to article). Colonel Harring’s article discusses issues with specifications (i.e., the specifications on the charge sheet), script (i.e., the trial guide), and suspenses (i.e., deadlines).

That’s the title of my essay published today in the Columbia Law Review Sidebar and available here.

This could be an interesting Spring Break read, Meltdown in Haditha: The Killing of 24 Iraqi Civilians by U.S. Marines and the Failure of Military Justice.  Releases in Spring/Summer 2015.  From the preview:

In November 2005, Sunni insurgents attacked a U.S. Marine squad returning to its headquarters in Haditha with an improvised explosive device (IED). One marine died and two others were wounded. Within minutes, squad members killed 24 Iraqi civilians, including an elderly couple, four women and six children. It was the worst incident of its kind in the Iraq War.  Read more »

Lots of interesting military justice articles were published recently:

  • A book review by our emeritus Dwight H. Sullivan, Trying Cases to Win in One Volume, Army Law., June 2014, at 56 (direct link to article). The first paragraph includes this sentence: “What Moneyball did for baseball and Thinking About Crime did for criminology, Trying Cases to Win in One Volume does for trial advocacy.”
  • Major Robert D. Merrill, The Military’s Dilution of Double Jeopardy: Why United States v. Easton should be Overturned, 219 Mil. L. Rev. 176 (2014) (direct link to article). Major Merrill analyzes CAAF’s opinion in United States v. Easton, 71 M.J. 168 (C.A.A.F. 2012), cert. denied, 133 S. Ct. 930 (2013). (CAAFlog case page), and argues that “Congress should amend Article 44 to align with civilian law. Not only was Easton decided on faulty logical grounds, but it also set a dangerous precedent in which the CAAF was permitted to ignore the Supreme Court’s interpretation of a core constitutional right, and on the flimsiest of justifications.” Merrill, supra, at 177.
  • Colonel French L.Maclean, The Seventh Annual George S. Prugh Lecture on Military Legal History, 219 Mil. L. Rev. 262 (2014) (direct link to article). The article is an edited transcript of a lecture delivered on April 24, 2013, and is “about a time, back in World War II, when Judge Advocates were the big dogs on the porch.” Id. at 263.
  • Major Scott A. McDonald, Authenticating Digital Evidence from the Cloud, Army Law., June 2014, at 40 (direct link to article). “This article describes the nature of cloud architecture, criminal aspects of cloud storage, and then addresses issues of authenticating evidence obtained from the cloud. Drawing parallels from the approved methods of authentication for e-mail and webpages, this article argues that despite some unique issues associated with data obtained from the cloud, authentication of cloud data should not present an insurmountable obstacle for counsel.” Id. at 41.
  • Major Jeffrey A. Gilberg, The Secret to Military Justice Success: Maximizing Experience, 220 Mil. L. Rev. 1 (2014) (direct link to article). The author conducted an anonymous survey of Army JAG Corps personnel in military justice billets. From this survey, the article “first identifies and substantiates the problem of inexperience in the Army’s military justice system. Second, it discusses the SVP program as a successful Army initiative already in place that effectively utilizes litigation experience. Third, by building upon the success of the SVP model, as well as the ideas and observations of others, this article proposes a detailed plan that directly addresses and solves the problem of litigation inexperience in the JAG Corps.” Id. at 3.
  • Major Elizabeth Murphy, The Military Justice Divide: Why Only Crimes and Lawyers Belong in the Court-Martial Process, 220 Mil. L. Rev. 129 (2014) (direct link to article). “This article explores the process and concerns with commanders’ UCMJ authority, analyzes recent legislation, and proposes a new military justice model by incorporating the spirit of the MJIA.” Id. at 134. The MJIA is the Military Justice Improvement Act, proposed by Senator Gillibrand and discussed here.
  • Major Frank E. Kostik Jr., If I Have to Fight for My Life—Shouldn’t I Get to Choose My Own Strategy? An Argument to Overturn the Uniform Code of Military Justice’s Ban on Guilty Pleas in Capital Cases, 222 Mil. L. Rev. 242 (2014) (direct link to article).

The May 2014 edition of The Army Lawyer is available here and includes two articles of special interest to military justice practitioners:

Major Michael Zimmerman, USMC, writes An Ounce of Improper Preparation Isn’t Worth the Cure: The Impact of Military Rule of Evidence 612 on Detecting Witness Coaching, discussing the fine line between witness preparation and witness coaching (direct link to article).

Major Michael J. McDonald, USMC, pens a book review of Rape Is Rape How Denial, Distortion, and Victim Blaming Are Fueling a Hidden Acquaintance Rape Crisis by Jody Raphael JD (direct link to review).

I haven’t read the entire article so I’ll let you guys comment on it, but here is a forthcoming article on the sexual assault issue in the military from a law student at the University of Miami.  the article will appear in the University of Miami National Security & Armed Conflict Law Review and is titled “Where is the Justice? The Sexual Assault Crisis Plaguing the Military and a Lack of Meaningful Justice.”  Here is an abstract for the article if you want a preview.

That’s the title of a forthcoming article by Air Force judge advocate Major Matthew Burris, in the Buffalo Journal of Gender, Law, and Social Policy. You can access the article on SSRN at http://ssrn.com/abstract=2414494

Here’s a taste (from the article’s introduction):

Yet stories that feel archetypally right—even those supported by gripping anecdotes—might also grossly misrepresent reality. Such is the case with the military’s so-called “sexual assault crisis”: the intuitively compelling narrative advanced by the media, some members of Congress, victim advocacy groups, and others is not empirically supportable. While there is no logical proof for what does or does not constitute a crisis, at the very least, a crisis moniker suggests a widespread problem—and one that is growing and generally out of control. The best available data, however, suggest this is simply not the case.

As discussed in detail below, the data instead suggest that: (1) an estimated 98% of service members , or 1.324 million, experienced no form of unwanted sexual contact during fiscal year 2012;16 (2) between fiscal years 2010 and 2012, only two of the four Armed Services showed a statistically significant increase in the number of estimated victims of unwanted sexual contact and overall numbers are down from fiscal year 2006; (3) the prevalence of sexual assault in the military is comparable to demographically similar civilian populations; (4) senior military commanders are more aggressive in exercising their prosecutorial discretion in sexual assault cases than are licensed attorneys; (5) overturning the results of courts-martial are exceptionally rare events, particularly in the case of serious offenses like sexual assault; and (6) removing senior commanders’ authority to make prosecutorial decisions will not improve extant conditions. If this is what the data suggest, then the crisis narrative was arguably borne of something other than data. To be sure, it appears to have been borne largely of a disparate group of concerned and well-intentioned individuals thinking fast about a problem that cries out for thinking slow.

The February edition of the Army Law Review (available here) has an excellent article by Major Chris Pehrson (copy of article available here) on the issuance of subpoenas duces tecum at Article 32 pretrial investigations. Notably, the 2013 changes to the UCMJ modify the nature and scope of the Article 32 process, but they do not change the subpoena power.

So argues professor and former Army judge advocate Wm. C. Peters in an Elon Law Review article titled: Article 37 of the UCMJ and Command Responsibility for War Crimes – Unlawful Command Influence as (Rogue) Elephant in the Room (available here).

The author calls for an independent civilian special prosecutor at the service secretary level to oversee the prosecution of war crimes cases involving allegations of misconduct by commands. He sees such as prosecutor as necessary because, “There is probable cause to conclude our military justice system employs UCI, as both scabbard and saber, to prevent war crime prosecutions against senior commanders from ever reaching finality in law” (Page 28 of the linked pdf). But considering that the fundamental problem with command influence of a court-martial is that it deprives the accused of constitutional rights, the premise of the article seems to force a square peg into a round hole.

The article also notes the pressure on judge advocates to be sycophants:

Adding to this unique attorney-client relationship is the military’s overarching hierarchical structure. In the past, the U.S. Army practice was for service regimental headquarters to regularly admonish judge advocates (JAs) to be “soldiers first” – as if there should be any professional considerations allowed to get in the way of providing sound legal advice under some vague, undefined circumstance. The subtle though clear reminder, especially for junior legal staff officers wishing to grow into senior advisors, is that the commander as client and ranking officer need not abide by your counsel, even if it specifically addresses the lawful way ahead. When it comes to the stark business of war-fighting and the tactics, techniques, and procedures generated by battlestaffs – which may contribute to war crimes under certain circumstances – commanders tend to be strong-willed when receiving corporate counsel’s advice. Do as you are told, the JA learns, or you risk your rater’s wrath in career controlling efficiency reports. Of course, the uniformed service superior can always simply call for a new lawyer to offer up the counsel he or she prefers to hear.

Page 3 of the pdf. It’s also worth considering that appellate reversal usually comes long after the performance evaluation (and the personal award) is finalized.

The January 2014 edition of The Army Lawyer is available here, and contains two interesting military justice articles:

Major Todd W. Simpson writes Supervising Paralegals in Accordance with the Rules of Professional Conduct. The piece focuses on the Army’s rules, but the concepts discussed are broadly applicable across the services.

Major Takashi Kagawa considers the relative benefits of lesser forum punishments for first-time offenders in Soldier’s First Offense: Article 15 or Summary Court-Martial?

The Air Force recently published Volume 70 of the Air Force Law Review (link to PDF). It contains the following articles:

Protecting Security And Privacy: An Analytical Framework For Airborne Domestic Imagery. Colonel Dawn M.K. Zoldi.

The Sky Has Not Fallen: A Brief Look At The Impact Of United States V. Walters Ten Years Later. Lieutenant Colonel W. Shane Cohen And Captain Jonathan S. Sussman.

High (Risk) Society: Easing The Anxiety For Institutional Clients Using Social Media. Ms. Susan L. Turley.

The Big Payback: How Corruption Taints Offset Agreements In International Defense Trade. Lieutenant Colonel Ryan J. Lambrecht.

Wielding A “Very Long, People-Intensive Spear”: Inherently Governmental Functions And The Role Of Contractors In U.S. Department Of Defense Unmanned Aircraft Systems Missions. Major Keric D. Clanahan.

The Walters article (direct link) is of particular interest to military justice practitioners. In United States v. Walters, 58 M.J. 391 (C.A.A.F. 2003) (link to slip op.) the appellant was charged with wrongful use of ecstasy of divers occasions, but was convicted by exceptions and substitutions of wrongful use on one occasion. However, the panel did not specify which occasion formed the basis for the conviction. CAAF determined that this created an ambiguous finding that prevented the Air Force Court of Criminal Appeals from conducting its factual sufficiency review under Article 66(c), and ruled that:

Where a specification alleges wrongful acts on “divers occasions,” the members must be instructed that any findings by exceptions and substitutions that remove the “divers occasions” language must clearly reflect the specific instance of conduct upon which their modified findings are based.

Walters, 58 M.J. 391, slip op. at 12. In the article, Lieutenant Colonel Cohen and Captain Sussman discuss similar cases in the intervening decade, reasons why prosecutors should continue to charge on divers occasions, and sentencing considerations.

A few weeks ago, Zach posted a link to the latest edition of the The Reporter, the Air Force JAG School’s magazine. In that edition, there were two articles dealing with the Special Victim’s Counsel program. One of those articles, The Scope of a Victim’s Right to be Heard Through Counsel by Major Christopher J. Goewert, USAF and Captain Seth W. Dilworth, USAF, got me thinking more about what discovery rights an alleged victim might have.

In the article, the authors tease out what the scope of an SVC’s representation might be in light of LRM v. Kastenberg. As an aside, Maj Goewert was one of the appellate counsel arguing on LRM’s behalf in the appellate courts and Capt Dilworth was LRM’s SVC. The article was thought-provoking, particularly toward the end in a section titled “What Information Should be Provided to an SVC.”

This is an interesting section because, as the title indicates, it is almost entirely prescriptive rather than descriptive. In other words, it seems to be making arguments for what evidence should be provided to an SVC, but does not really discuss what evidence is legally required to be provided. It got me thinking about what requirements, if any, exist right now for production of evidence to an alleged victim. Before we proceed though, let me say that I certainly don’t have all the right answers. This blog post is essentially me thinking through a portion of this article. If I’m wrong on something, please set me straight in the comments. This is as much a learning experience for me as anyone else.

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Here is a thought provoking piece over at Foreign Policy from Morwari Zafar. It argues for a different approach to negotiating criminal jurisdiction over US Servicemembers in the Bilateral Security Agreement with Afghanistan.

Is compromise possible?
Afghanistan’s informal justice mechanisms, while dramatically unlike those of the United States, reinforce local governance structures in Afghanistan. From an Afghan perspective, this system promotes equality and justice in a way that the American system does not. In terms of jurisprudence, even shadow governments like that of the Taliban, though regarded as problematic and oppressive, promote a rule of law that is more consistent with traditional customs than Western ideologies. Furthermore, because years of international developmental support, both pecuniary and technical, have failed to create corruption-free formal governance and justice systems with the capacity to address crimes in Afghanistan, it is understandable that Afghans have more faith in their own informal methods than formal institutions of dispute mediation — particularly those of a foreign government. . . . Thus, the opportunity for a proper, shared dialogue about the criminal jurisdiction of foreign troops operating in Afghanistan provides motivation for the Afghan government to strengthen its formal judicial sector by implementing the impartial, representative mechanisms for which the international community has advocated — processes that would allow Afghans like Wazir to have a voice, reflect the cultural and religious values of Afghan society, and adhere to international human rights standards.

The deal is currently stalled as Afghan President Karzai refuses to sign the deal negotiated by his representatives and US representatives and threatens to release some 80 prisoners from Bagram prison that the US says are responsible for Afghan and Coalition forces murders, see NBC News coverage here.