CAAFlog » Military Justice Scholarship

In March of this year, in Pena-Rodriguez v. Colorado (SCOTUSblog case page), the Supreme Court invoked the “imperative to purge racial prejudice from the administration of justice” and used that command to pierce the rule protecting the secrecy of juror deliberations.  Slip. op. at 13. The Court found that Colorado Rule of Evidence 606 (equivalent to M.R.E. 606) could not stand in the way of an accused’s right to probe the verdict for evidence of racial bias:

[T]he Constitution requires an exception to the no-impeachment rule when a juror’s statements indicate that racial animus was a significant motivating factor in his or her finding of guilt.

Slip. op. at 2. The Court explained:

It must become the heritage of our Nation to rise above racial classifications that are so inconsistent with our commitment to the equal dignity of all persons.

Slip. op. at 13. It is against that backdrop that questions regarding whether the military justice system is racially biased has joined the already feverish discussion regarding the system’s handling of sexual assault.

Ten days ago, Newsweek asked “Is the Military Racist?” A headline in USA Today added: “Black troops as much as twice as likely to be punished by commanders, courts.” NBC reported: “Black Troops More Likely to Face Military Punishment than Whites.” And McClatchy newspapers noted: “Black troops far more likely to face military punishment in every service branch.”

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It is sexual assault report card season for the Department of Defense, and the actual numbers reported don’t necessarily match the political rhetoric. And, the political rhetoric is, perhaps, particularly strident this season. That could be a concern given CAAF’s recent decision in United States v. Boyce, CAAF Dkt. No 16-0546/AF (CAAFlog case page).

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Rule for Courts-Martial 306(c)(2) provides that a commander faced with a subordinate’s misconduct may elect to take administrative action against that subordinate. The discussion section to that rule makes clear that administrative separation is one of the adverse administrative actions available to a commander.

A recent report by the Government Accountability Office (GAO), entitled DOD Health – Actions Needed to Ensure Post-Traumatic Stress Disorder (PTSD) and Traumatic Brain Injury (TBI) Are Considered in Misconduct Separations, posits that servicemembers with mental illnesses may not be receiving fair treatment in misconduct-based discharge proceedings. Then, in an article published by the Military Law Review entitled Justice in Enlisted Administrative Separations, ___ Mil. L. Rev. ____, Vol. 225, Issue 1 (May 2017), Major Latisha Irwin argues that servicemembers accused of sexual offenses are also receiving unfair treatment in discharge proceedings.

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About 2,800 years ago, Homer described Odysseus’ encounter in Hades with an individual who was a betrayer of divine secrets, cannibal, and kin-slayer, all in one:

I saw also the dreadful fate of Tantalus, who stood in a lake that reached his chin; he was dying to quench his thirst, but could never reach the water, for whenever the poor creature stooped to drink, it dried up and vanished, so that there was nothing but dry ground- parched by the spite of heaven. There were tall trees, moreover, that shed their fruit over his head- pears, pomegranates, apples, sweet figs and juicy olives, but whenever the poor creature stretched out his hand to take some, the wind tossed the branches back again to the clouds.

A few decades ago, in United States v. Pallais, Richard Posner analogized the modern criminal defendant to that wretch, Tantalus:

The expansive code of constitutional criminal procedure that the Supreme Court has created in the name of the Constitution is like the grapes of Tantalus, since the equally expansive harmless error rule in most cases prevents a criminal defendant from obtaining any benefit from the code.

Mere days ago, the Harvard Law Review published an article entitled A Contextual Approach to Harmless Error Review, 130 Harv. L. Rev. 1791 (May 1, 2017), by Justin Murray, of the Illinois Attorney General’s Office. Mr. Murray posits that the harmless-error construct, conditioning relief on whether a given error has affected the result of the proceeding under review, is a mistaken approach. He asserts that such an approach fails to vindicate societal needs that are just as important as the truth-finding role that is served by upholding factually “overwhelming” convictions.

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Last month, The Army Lawyer published an article authored by Marine Major G.K. Logan entitled “Zealous Advocacy, Professionalism, and the Military Justice Leader.” Major Logan’s article explores the difference between zealous advocacy, which the adversarial system demands, and zealotry, which is abhorred by the rules of professional conduct and prevailing standards of civility.

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Earlier this week the Department of Justice issued a notice in the Federal Register asking the public to submit proposals to:

(1) Improve the underlying science and validity of forensic evidence; (2) improve the operational management systems of forensic science service providers; and (3) improve the understanding of forensic science by legal practitioners.

Notice of Public Comment Period on Advancing Forensic Science, 82 Fed. Reg. § 17879 (April 13, 2017).

The notice explains that public comment is necessary now because the 2-year charter for National Commission on Forensic Science (NCFS), which is a Federal Advisory Committee like the military justice system’s Judicial Proceedings Panel (CAAFlog page), is about to expire.  The Department specified: “Proposals may include some combination of a Federal Advisory Committee, a new office at the Department, an inter-agency working group, regularly scheduled stakeholder meetings, etc.” Id. at § 17880.

Media response to the DOJ’s notice has been inaccurate and, at times, shrill. The Washington Post, reading an advance copy of the Notice, interpreted that the Attorney General had already decided not to renew the NCFS. Meanwhile, in a feature article, Rolling Stone lamented, “Jeff Sessions is Keeping Junk Science in America’s Courts” and “Trump’s attorney general is a threat to the rule of law he’s tasked with upholding[.]”

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A gracious reader brought my attention to an article entitled The Silence Penalty, 103 Iowa L. Rev. ____ (forthcoming 2017), which is soon to be published by the University of Iowa College of Law, and which is authored by Professor Jeffrey Bellin of William & Mary Law School. Professor Bellin has examined data from actual criminal trials, as well as the results of a recent 400-person mock juror simulation, to conclude that an accused person who declines to take the stand in a jury trial suffers a conviction rate penalty that is about equal to having evidence of a prior conviction presented against them. In contrast, “for defendants without prior convictions, testifying coincided with an almost doubling of the chances of acquittal.” The Silence Penalty at 26.   Professor Bellin warns:

The surprising power of the silence penalty should give pause to the many defendants without a prior record who demand a trial but then decline to take the witness stand[.] . . . Declining to testify, [] puts them in the same position as a defendant with prior convictions. This is a major blow to acquittal prospects and one that (tactically speaking) should be avoided if at all possible.

Id. at 30. For defendants with prior convictions, the research found that the rate of conviction was about the same whether the accused testified or not.

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In 2005, Congress appropriated funds – P.L. No. 109-108, 119 Stat. 2302 – and asked the National Academy of Sciences (NAS) to execute certain tasks identified at page 46 of Senate Report No. 109-88. One of those tasks was to “disseminate best practices and guidelines concerning the collection and analysis of forensic evidence[.]” Id.

With that statutory mandate, in 2009, a NAS committee published a groundbreaking report entitled Strengthening Forensic Science in the United States: A Path Forward. That report was discussed at a Congressional hearing where it was said that the NAS had “found that many of the techniques and technologies used in forensic science lack rigorous scientific discipline.” Congress concurred with the report’s recommendation that “a new agency, separate from the legal and law enforcement communities, be created to provide oversight to correct these inconsistencies which impact the accuracy, reliability, and validity of forensic evidence.” Id.

Accordingly, the task of reforming the practice of forensic science in this country was entrusted to an agency of the Department of Commerce: the National Institute of Standards and Technology (NIST). In turn, in 2015, NIST chartered the Organization of Scientific Area Committees (OSAC) for Forensic Science, which is a multi-disciplinary body made up of over 500 forensic science practitioners.  OSAC’s job is to facilitate the development of forensic science standards for the nation.

Towards that end, last month, one of OSAC’s committees, the Legal Resource Committee (LRC), issued a memorandum entitled Question on the Hypothesis Testing in ASTM 2926-13 and the legal principle that false convictions are worse than false acquittals. That document is published by the Harvard Law Review at 130 Harv. L. Rev. F. 137 (2017), and dives straight to the heart of how forensic evidence finds its way into American court-rooms. The LRC’s missive establishes that a forensic scientist does not have to adopt the conventions of the legal forum he or she serves.  Accordingly, when working on a criminal matter, the analyst does not have to presume innocence and does not have to use a beyond a reasonable doubt standard of proof for their conclusions.

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A gracious reader directed me to a recent article authored by Dr. Melissa Hamilton in the Boston College Law Review entitled Constitutional Law and the Role of Scientific Evidence: The Transformative Potential of Doe v. Snyder, 8 B.C.L. Rev. E. Supp. 34 (2017). In her article, Dr. Hamilton discusses the United States Court of Appeals for the Sixth Circuit’s August 2016 decision in Does #1-5 v. Snyder, 834 F.3d 696 (6th Cir. 2016) (Justia). That decision is pertinent to military justice practitioners for a couple of reasons.

First, the Sixth Circuit held: “[w]e conclude that Michigan’s [Sex Offender Registration Act (SORA)] imposes punishment.” 843 F.3d at 705. This contrasts with CAAF’s 2014 decision in United States v. Talkington, 73 M.J. 212 (CAAFlog case page), where the Court opined that sex offender registration was “a penalty for committing a crime[,]” 73 M.J. at 215, but did not “constitute punishment for purposes of the criminal law[,]” 73 M.J. at 217.

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The Military Law Review recently published an article by Army Major Angel M. Overgaard, one of the prosecutors from the Manning case.  In her article, Redefining the Narrative: Why Changes to Military Rule of Evidence 513 Require Courts to Treat the Psychotherapist-Patient Privilege as Nearly Absolute, 224 Mil. L. Rev 979, 984-985 (2017), Major Overgaard explores the intersection between a patient’s privilege under MRE 513 to keep communications with mental health providers private, and an accused person’s right to receive a fair trial.

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Just a few weeks ago, this blog noted that CAAF had been so “unsettled” by the courtroom behavior of a military prosecutor in United States v. Sewell, No. 16-0360 (CAAFlog case page)that the Court named the prosecutor in the decision. However, ultimately, the Court found the conduct was harmless beyond a reasonable doubt and affirmed the conviction and sentence.

On February 21, the Sewell case was featured in an article published in The Daily Signal, which is the Heritage Foundation’s “digital-first, multimedia news platform.” The article, entitled “Latest Case of JAG Malpractice Shows Pressing Need For Reform,” was authored by the Manager of the Heritage Foundation’s National Security Law Program, Charles “Cully” Stimson, who is also, according to his Heritage Foundation biography, a senior naval reserve JAG. An article dispersed exclusively online by an entity derived from a political “think-tank” and aligned with a Political Action Committee will not normally constitute the sort of scholarship this column covers. However, this piece is an exception because it so precisely critiques a fundamental aspect of the military justice system, and because The Heritage Foundation reportedly “wields clout” within the new administration. For those reasons, it is worthy of note even if it is a bit polemic.

The article takes pains to publicly name the offending prosecutor from Sewell, and, in its opening volley, stridently declares:

The Court of Appeals for the Armed Forces (the top military court) has slammed another Army trial prosecutor for egregious misconduct in an Army court-martial.

Id.   Read more »

A reader brought my attention to a recent article published in the Washington University Law Review.  In his article, Unraveling Unlawful Command Influence, 93 Wash. U. L. Rev. 1401 (2016), Professor Monu Bedi, of DePaul University College of Law, offers a comparative analysis of how the military and civilian jurisdictions handle allegations of prosecutorial misconduct and contrasts that with the approach that military courts take when a commander, as opposed to the prosecuting lawyer, is the person who has committed the misconduct.  In evaluating each of these scenarios, Professor Bedi plots them along a continuum that values “systemic integrity” on one end and “individual autonomy” on the other.

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Military jurisprudence concerning the proper victim to charge in an electronic theft case was cumbersome after CAAF’s 2014 decision in United States v. Cimball Sharpton, 73 M.J. 299 (CAAFlog case page).* In that case, the Court held that Cimball Sharpton had stolen from the Air Force when she misused her government purchase card – she had not stolen from the card-issuing bank or the vendors where the card had been illicitly used.

In its June 2016 decision, United States v. Williams, 75 M.J. 129 [Update: link corrected] (2016) (CAAFlog case page), CAAF lamented its “unfortunate choice of language in Cimball Sharpton” (75 M.J. at 134) and set about clarifying the applicable standard:

We reiterate, in the usual case of a credit card or debit card larceny, the “person” who should be alleged in the specification is a person from whom something was obtained, whether it is goods or money.

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It is commonly understood that appellate courts exist to serve two functions – “(1) correction of error (or declaration that no correction is required) in the particular litigation; and (2) declaration of legal principle, by creation, clarification, extension, or overruling.” See J. Dickinson Phillips, Jr., The Appellate Review Funtion: Scope of Review, 47 Law & Contemp. Prob. 1 (Spring 1984). CAAF was created to be the military jurisdiction’s court of last resort—it’s the military’s Supreme Court. See Noyd v. Bond, 395 U.S. 683, 694 (1969) (oyez) (related CAAFlog post).

In a recent article published by the Vermont Law School, In Order to Form a More Perfect Court: A Quantitative Measure of the Military’s Highest Court’s Success as a Court of Last Resort, 41 Vt. L. Rev. 71, Captain (USAF) Rodrigo M. Caruço posits that, in a healthy system, the work of a court of last resort, such as CAAF, should be almost exclusively declaration of legal principle rather than error correction. Captain Caruço reached that conclusion after having studied SCOTUS decisons and decisions from State courts of last resort. Those high courts rarely engage in error correction. In contrast, CAAF appears to spend just under half of its time correcting errors in individual cases rather declaring law for the military jurisdiction. Id. at 108. Captain Caruço identifies two causes for this: 1) incompetence by advocates and courts below, and 2) (perhaps because of that incompetence) CAAF does not yet feel comfortable behaving as a court of last resort should. Read more »

Two recent law review notes published by the University of Virginia and the University of Illinois start from the same premise: that the military’s zealous sexual assault prevention and response efforts have compromised the military justice system’s ability to appropriately and reliably dispose of allegations.

In his note, Overcoming Overcorrection: Towards Holistic Military Sexual Assault Reform, 102 Va. L. Rev. 2027 (2016), Greg Rustico favors giving prosecutorial discretion for all crimes with civilian analogues to judge advocates, rather than vesting that power in commanders.  In contrast, a note by Heidi Brady argues for giving prosecutorial discretion in the military justice system to Department of Justice lawyers.  See Justice is No Longer Blind: How the Effort to Eradicate Sexual Assault in the Military Unbalanced the Military Justice System, 2016 U. Ill. L. Rev. Online 193.

In supporting their recommendations, Mr. Rustico and Ms. Brady point to relatively recent changes to the military justice system – such as the revision of Article 32 and the requirement that a commander’s performance/fitness appraisal consider how they handled allegations of sexual assault within their units.  Both also spend a good bit of time asserting that the military’s sexual assault prevention and response programs have tainted military court-martial panels.  Ms. Brady also argues that prosecutorial discretion needs to be taken from the Department of Defense in order to counterbalance certain aspects of the military justice system which she views as being inherently unfavorable to the accused, such as the fact that verdicts are not required to be unanimous, the lack of dedicated defense investigators, the lack of dedicated funding for the defense function, defense counsel’s inability to obtain equal access to documents and witnesses before referral, and the fact that the defense is not permitted to interview victims without having a government-appointed lawyer (either the prosecutor or a victim’s counsel) present.  Neither Mr. Rustico nor Ms. Brady address the sweeping changes which were recently signed into law through the Military Justice Act of 2016, which was this blog’s #1 Military Justice Story of 2016.

The question of whether commanders should retain their prosecutorial discretion, and if not, then where that responsibility should fall, has been a topic of discussion for several years now, on this blog and elsewhere:

• Spilman, Zachary D, Blame all the lawyers [Commentary], Baltimore Sun (March 31, 2014).
• Blog post: “Thinking Slow About Sexual Assault in the Military”
• Blog post: Opposing views on civilianizing military justice
• Blog post: Scholarship Saturday – Professor Schlueter responds to the siren songs for reform
• Blog post: Scholarship Saturday – The plight of the accused