Volume 208 of the Military Law Review is now available here, and it looks like a good one.  It includes two articles and two book reviews (one by CAAFlog favorite Army JAG Corps Regimental Historian Fred L. Borch III).  The two articles are MAJ Evan R. Seamone, Reclaiming the Rehabilitative Ethic in Military Justice:  The Suspended Punitive Discharge as a Method to Treat Military Offenders with PTSD and TBI and Reduce Recidivism, 208 Mil. L. Rev. 1 (2011) (a 212-page article!), and COL George R. Smawley, In Pursuit of Justice, A Life of Law and Public Service:  United States District Court Judge and Brigadier General (Retired) Wayne E. Alley (U.S. Army, 1952-1954, 1959-1981), 208 Mil. L. Rev. 213 (2011).

Ron Meister has a thoughtful review of  Prof. Tomaz Jardim’s book, The Mauthausen Trial: American Military Justice in Germany, here.  I’d not heard about the Mauthausen war crimes proceedings before reading the review, but, according to Ron, the hearings resulted in “the largest mass execution ever conducted by the United States.”  Here’s an excerpt from the review:

Most of the attention to post-World War II war crimes trials has focused on the Nuremberg tribunal, where the highest-ranking Nazis were tried before an international court. But in fact, the overwhelming majority of war crimes defendants held by U.S. forces in Europe, 1,676 in all, were tried in a total of 462 trials conducted by the United States Army. The Mauthausen trial, held on the grounds of the Dachau concentration camp, was one of the largest.

Tomaz Jardim, an assistant professor of history at Ryerson University in Toronto and a one-time fellow at the U.S. Holocaust Memorial Museum, has produced what will likely be the definitive study of the Mauthausen trial, its context and its legacy. Drawing on the trial transcript, investigators’ reports, interviews with some of the few participants still alive and the largely self-serving memoir of the chief prosecutor, Jardim’s work is thoroughly researched, even-handed and highly instructive.

The September issue of the Army Lawyer is now available here.  While I always enjoy Fred Borch’s Lore of the Corps sketches, I found this month’s particularly interesting:  it’s about the only Army judge advocate ever to receive a battlefield promotion.  The issue also has two articles of interest to military justice wonks:  Major John R. Maloney, Litigating Article 32 Errors After United States v. Davis, Army Law., Sept. 2011, at 4; and Major Jay Thoman, Advancing Advocacy, Army Law., Sept. 2011, at 35.

A commentator alerts us to the publication of volume 67 of the Air Force Law Review, the Military Justice Edition.

Table of contents:

THE DEMISE OF UNITED STATES V.WILSON: A SUGGESTED APPROACH TO C.A.A.F.’S CALL FOR CHANGE
Colonel Louis J. Puleo, USMC

THE PRACTICE OF CRIMINAL LAW IN THE GUANTÁNAMO MILITARY COMMISSIONS
Lieutenant Colonel David J.R. Frakt, USAFR

THE CORROBORATION QUANDARY: A HISTORICAL OVERVIEW OF THE INTERPRETATION OF MRE 304(g)
Colonel J. Wesley Moore, USAF

A QUESTION OF ALLEGIANCE: CHOOSING BETWEEN DUELING VERSIONS  OF “AIDING THE ENEMY” DURING WAR CRIMES PROSECUTION
Michael J. Lebowitz, Office of Military Commissions

“LET COBHAM BE HERE”: THE INTRODUCTION OF DRUG TESTING REPORTS IN COURTS-MARTIAL POST MELENDEZ-DIAZ
Captain Daniel I. Stovall, USAF

THE BRADY BUNCH: AN EXAMINATION OF DISCLOSURE OBLIGATIONS IN THE CIVILIAN FEDERAL AND MILITARY JUSTICE SYSTEMS
Captain Elizabeth Cameron Hernandez, USAF
Captain Jason M. Ferguson, ANG

THIS COURT-MARTIAL HEREBY (ARBITRARILY) SENTENCES YOU: PROBLEMS WITH COURT MEMBER SENTENCING IN THE MILITARY AND PROPOSED SOLUTIONS
Captain Megan N. Schmid, USAF

NEITHER A MODEL OF CLARITY NOR A MODEL STATUTE: AN ANALYSIS OF THE HISTORY, CHALLENGES, AND SUGGESTED CHANGES TO THE “NEW” ARTICLE 120
Brigadier General (Ret.) Jack Nevin, USAR
Lieutenant Joshua R. Lorenz, USN

The Kabul Klipper is in town.  We had dinner last night at Cadillac Ranch.  Unfortunately, we were there too early for the Kabul Klipper to ride the mechanical bull, as he was rarin’ to do.  So instead of attempting to remain aloft a large bucking robotic version of the Golden CAAF, we talked about — what else? — whether PTAs are overused in the military justice system.

The premise of an article in the new edition of the Air Force JAG Corps’ Reporter is that SJAs don’t properly evaluate the downside of PTAs when advising CAs and thereby recommend entering into PTAs more often than they should.  See Colonel Kenneth M. Theurer & James W. Russell III, Pretrial Agreements:  The Hidden Cost, Reporter, Vol. 38, No. 2, at 2 (2011).  The article is on the fourth page at this link.  The article includes a number of fascinating statistics concerning the use of PTAs in the Air Force over time.  The Kabul Klipper and I are curious as to what CAAFlog’s readers think of the article’s thesis.  So please read it.  Done?  Now discuss.

The article cites a fascinating article from the Journal of Empirical Legal Studies of which I was previously unaware:  Patricia D. Breen, The Trial Penalty and Jury Sentencing:  A Study of Air Force Courts-martial, 8 J. Emperical Legal Studies 206 (2011).  That article provides the results of a survey of almost every Air Force GCM and SPCM tried in 2005 and 2006.  Among the interesting findings:  when an accused pleads guilty, members typically adjudge 35% less confinement than do military judges.  Another interesting finding:  military judges in practice seem to provide no discount for pleading guilty:  “In the Air Force convicted subsample, average sentences after a judge trial are not significantly different from judge guilty plea sentences, thus indicating the offenders in the Air Force receive an added benefit when they assert their right to a trial because they retain the possibility of an acquittal.”  Id. at 229.

While both articles are fascinating, they also provide still more evidence that something shouldn’t be believed just because it’s been published in a journal.  For example, the Journal of Empirical Legal Studies article states:  “Unlike all other offenses, premeditated murder has a mandatory minimum of life in prison (MCM 2004; Art. 118).”  Id. at 209 n.8.  Not only is that wrong; it’s disproved by its own citation.  Article 118 states that both premeditated murder and felony murder carry a minimum sentence of confinement for life.  Art. 118, UCMJ, 10 U.S.C. § 918 (2006).  Nor are those the only UCMJ offenses that carry a mandatory minimum.  See Art. 106, UCMJ, 10 U.S.C. § 906 (2006).  The article also states, “The maximum punishment for a general court-martial is what the Uniform Code of Military Justice (UCMJ) specifies for that offense.”  8 J. Empirical Legal Studies at 9.  But for non-capital offenses, the UCMJ merely says that the accused ”shall be punished as a court-martial may direct.”  It is the President, in Part IV of the MCM, who provides the maximum punishment for those offenses, doing so pursuant to Article 56.

The Reporter article also contained a passage that left me scratching my head.  The article states, “In fact, a recent study suggests that at least within the Air Force, the accused, on average, does not receive any real benefit in terms of adjudged sentence in return for a plea of guilty.  In essence, the only benefit to the accused is the certainty generated by the sentence limitation provided by the pretrial agreement.”  Reporter, Vol. 38, No. 2, at 8 (footnote omitted).  Well, isn’t it unsurprising that the benefit the accused obtains from a PTA is the sentence cap?  Notice that the Reporter article says that on average, there’s no real benefit in terms of adjudged sentences for a guilty plea.  That doesn’t mean that there’s no benefit in terms of approved sentences.  Nor do I see anything in the Journal of Empirical Legal Studies article indicating how often the defense “beats the deal” in a PTA case and how often it doesn’t.  (Footnote 45 on page 227 doesn’t speak to that issue, but just to the ratio of sentence reductions due to CA actions in members sentencing guilty plea cases versus judge alone sentencing guilty plea cases.) If it’s often the case that the deal is better than the adjudged sentence, then the accused gets more than “certainty” as a result of entering the PTA; the accused gets a lighter sentence.  Additionally, the Journal of Empirical Legal Studies article didn’t study whether charges were dropped due to a PTA; this could be another real benefit to the accused of entering into a PTA.  Another potential unstudied benefit of PTAs is dealing a case to a lower forum.  So in assessing the Reporter article’s thesis, the reader shoud discount the claim that PTAs don’t result in any real benefit to the accused– a proposition that appears to be unsupported by the source it cites in support of that proposition.

The July issue of the Army Lawyer is now available here.  The issue includes much of interest to military justice wonks.  Tonight is back-to-school night at my daughter’s school, so I’ll let you all enjoy its military justice content without my usual inadequate synopsis.

Speaking of the JAA, military justice wonks will find much of interest in this online August 2011 edition of the Judge Advoates Association’s journal, The Judge Advocate.

h/t Phil “My Liege” Cave

The Summer 2011 issue of the Georgetown Journal of Legal Ethics includes a student-authored piece on trying civilian contractors in federal district courts:  DonnaMarie McKinnon, Federal Civilian Criminal Prosecutions of Private Military Contractors:  Inherent Legal Ethics Issues, 2001 Georgetown J. of Legal Ethics 695.

The June 2011 edition of the Army Lawyer is now online here, with a couple of articles that will interest we military justice wonks.

Here’s a link to a “view from the bench” article about handling exhibits.  Lieutenant Colonel Wendy P. Daknis, A View From the Bench:  The Care and Keeping of Documents:  Proper Handling and Use of Documentary Exhibits at Trial, Army Law., June 2011, at 44.

And here’s a link to an article on post-trial delay.  Major Andrew D. Flor, Post-Trial Delay:  The Möbius Strip Path, Army Law., June 2011, at 4.

Here’s a link to the latest issue of The Reporter.  It includes a very informative article explaining how NJPs and summary court-martial convictions can be entered into NCIC. Lt Col Mark D. Stoup, DODI 5505.11: A Little Known Tool to Help Gain Off-Base Jurisdiction, 38 The Reporter, No. 1 at 30. And the issue includes another informative article on whether records of NJP and lesser administrative actions can be released to victims of offenses that resulted in those actions or to a news outlet that files a FOIA request. Maj Seth R. Deam, High-Vis Justice: Releasing Minor Disciplinary Information — A Scenario-Based Look at the Rules, 38 The Reporter, No. 1 at 35. Finally, the issue includes Air Force JAG School Academic Director Tom Becker’s helpful review of the ABA-published book, How to Try a Murder Case (2011).

The May edition of the Army Lawyer is now online here.  The issue includes the first of a two-part series by LTC Eric Carpenter called An Overview of the Capital Jury Project for Military Justice Practitioners: Jury Dynamics, Juror Confusion, and Juror Responsibility.  While not absolutely identical, the article appears to be based on this U.S. Army Command and General Staff College paper that we previous noted.  The issue also includes the Annual Review of Developments in Instructions.  And Fred Borch has another Lore of the Corps essay, this one about the first Asian-American Army judge advocate.

Speaking of Fred Borch, the Winter 2010 issue of the Military Law Review includes his review of a book by two members of the Abu Ghraib prosecution team. Christopher Graveline & Michael Clemens, The Secrets of Abu Ghraib Revealed: American Soldiers on Trial (2009). Given the ongoing debate we’ve noted over whether the military justice system remains capable of functioning in a combat zone, this conclusion by Borch is particularly interesting: “Since virtually all the investigative work, and most of the prosecutions, occurred in a deployed environment, The Secrets of Abu Ghraib Revealed proves that high-profile courts-martial can be conducted in a combat zone—and that the Uniform Code of Military Justice works in wartime.” 

The book is available from Barnes & Noble for $19.97 here and from Amazon.com for $19.37 here.

The latest (and, unfortunately, last) issue of NIMJ’s always-worthwhile Military Justice Gazette is available here.

The April issue of the Army Lawyer is now online here.  The issue appears thinner than most, but it will leave we military justice wonks satisfied.  First up is Fred Borch’s Lore of the Corps sketch, this one about the history of the Army JAG Corps’ crossed sword and pen branch insignia.  Next up is MAJ Daniel J. Everett’s article, Double, Double Toil and Trouble:  An Invitation for Regaining Double Jeopardy Symmetry in Courts-Martial.  Finally, there’s a short essage by COL Charles N. Pede called Military Justice, the Judge Advocate and the 21st Century.

The March edition of the Army Lawyer includes a typically fascinating “Lore of the Corps” sketch by JAG Regimental Historian Fred Borch.  This month’s sketch tells the interesting story of Army JAG Colonel Hubert Miller.

This issue also includes this article by COL Mark A. Bridges about the overlooked art of voir dire.  And speaking of voir dire, the issue also includes this article: Major Philip Staten, Clarifying the Implied Bias Doctrine:  Bringing Greater Certainty to the Voir Dire Process in the Military Justice System, Army Law., March 2011, at 17.  

Interesting student piece in the Columbia Law Review, here, on the scope of the advice of cousnel and “superior orders” defenses as it would apply to interrogators who may someday be alleged to have committed torture.  The article is Hobel, Mark W.S., So Vast an Area of Legal Irresponsibility”? The Superior Orders Defense and Good Faith Reliance on Advice of Counsel, 111 Colum. L. Rev. 574 (Apr. 2011).  From the conclusion section:

[The Detainee Treatment Act] section 1004(a) . . . extends a version of the defense to U.S. interrogators, but, if interpreted broadly, would immunize interrogators in a manner reminiscent of Nuremberg’s “complete” superior orders defense. Finally, Part III suggests that a focus on the techniques and conduct at issue, through the lens of an objective test for “manifest unlawfulness” may be the best option for preserving individual responsibility when officials and agents may be tempted to seek “advance pardons” from government lawyers.

In the final estimation, political realities will likely foreclose prosecution of interrogators whose reliance on legal guidance caused them to cross the line that separates interrogation from torture. Given the active role of counsel at all levels of the national security bureaucracy, however, it is imperative to delineate the proper scope and application of the legal defenses agents will raise when their actions, duly authorized by superiors and conducted after consultations with legal counsel, nevertheless break the law.

H/t JNSLP.