CAAFlog » Military Justice Scholarship

This is the third post in what I hope will be a weekly series about scholarly articles of interest to military justice practitioners. Please send any tips or suggested topics to zack@caaflog.com

In an article that focuses on the Coast Guard’s sexual harassment policies while discussing a topic that is broadly applicable to all of the military services, Coast Guard Lieutenant Commander Bryan R. Blackmore suggests that:

The sexual-violence continuum provides a clear, straightforward conceptual model in which service members can understand the nature of sexual violence and how sexual harassment and sexual assault fit within the overarching construct of sexual violence. Rather than solely focusing on sexual harassment as a discrimination issue, the Coast Guard should view sexual harassment as offensive conduct within a continuum of sexual violence. In particular, by viewing sexual harassment as part of a continuum of sexual violence, it provides a framework from which the service can view all behaviors that enable, or serve as a precursor, to sexual assault.

Bryan R. Blackmore, Sexual Assault Prevention: Reframing the Coast Guard Perspective to Address the Lowest Level of the Sexual Violence Continuum—Sexual Harassment, 221 Mil. L. Rev. 75, 105-106 (Fall 2014) (available here).

Seeing an “artificial distinction between sexual harassment and sexual assault” in Coast Guard policy, the author finds that “Coast Guard policy is drafted in a manner to view sexual harassment as discrimination and sexual assault as criminal conduct. This oversimplification of the nature of sexual harassment minimizes the fact that sexual harassment is also misconduct, and it can be criminal conduct as well.” Blackmore, supra, at 116.

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This is the second post in what I hope will be a weekly series about scholarly articles of interest to military justice practitioners. Please send any tips or suggested topics to zack@caaflog.com

In an article published in the Air Force publication The Reporter (available here), retired Colonel James Young (who is currently the Senior Legal Advisor to CAAF’s Judge Stucky) offers ten recommendations to reform court-martial procedure. They are:

  1. Remove authority from the convening authority to select court members, approve the findings and sentence, grant clemency, and preside over vacation proceedings.
  2. Eliminate summary courts-martial and grant field grade officers authority to impose confinement for 30 days as a nonjudicial punishment under Article 15.
  3. Establish standing courts.
  4. Modify special courts-martial to judge alone trials.
  5. Except in capital cases, require sentencing by the military judge. The military judge should be required to impose any sentence agreed to by both the convening authority and the accused.
  6. Require the service Secretaries to establish a system for randomly selecting court members.
  7. Require all counsel to be qualified and certified under Article 27(b).
  8. Modify the military appellate court system by: (1) granting all accused convicted of an offense at a general or special court-martial the right to appeal to an appellate court; (2) eliminating the service Courts of Criminal Appeals; (3) changing the Court of Appeals for the Armed Forces from a discretionary appellate court sitting en banc to a court comprised of panels of three judges, operating in a manner similar to the U.S. circuit courts of appeals; and (4) removing restrictions from appeals to the Supreme Court.
  9. Require a verbatim record for every court-martial conviction.
  10. Consolidate the government appellate divisions so that when counsel purports to speak for the United States, it does so with one voice.

Each suggestion is accompanied by a brief discussion.

Note: This is the first of what I hope will be a weekly series about scholarly articles of interest to military justice practitioners. Please send any tips or suggested topics to zack@caaflog.com

Pretrial confinement prior to trial by court-martial is permitted only when:

(1) An offense triable by court-martial has been committed;
(2) The person confined committed it; and
(3) Confinement is required by the circumstances.

RCM 305(d). Then, once a person is confined, continued pretrial confinement is permitted only when a preponderance of the evidence proves that:

(i) An offense triable by a court-martial has been committed;
(ii) The prisoner committed it; and
(iii) Confinement is necessary because it is foreseeable that:
(a) The prisoner will not appear at trial, pretrial hearing, or investigation, or
(b) The prisoner will engage in serious criminal misconduct; and
(iv) Less severe forms of restraint are inadequate.

RCM 305(h)(2)(B). See also RCM 305(i)(2)(A).

Notably absent from these rules is any explicit consideration of the seriousness of the allegations against the accused

A recent article by Major Ryan W. Leary, U.S. Army, published in the Military Law Review, provides a powerful argument for changing these rules. Major Leary argues that “the military justice system should presume, for certain serious offenses, that absent pre-trial confinement an accused will either flee or harm members of the surrounding community.” Major Ryan W. Leary, Serious Offense: Considering the Severity of the Charged Offense When Applying the Military’s Pre-Trial Confinement Rules, 221 Mil. L. Rev. 131, 133 (Fall 2014) (available here).

Using the interrupted court-martial of one Sergeant Evenson – that ended when the unconfined accused absconded and was killed in a confrontation with authorities – Major Leary provides an excellent primer on the history of the current rules for pretrial confinement. Then, after defining the issue as “how to change the RCM to handle cases where an accused is facing serious charges and severe punishment,” 221 Mil. L. Rev. at 143, Major Leary notes that in the federal system the Bail Reform Act:

creates a rebuttable presumption that there is no set of conditions that will assure the presence of a defendant at trial and protect the safety of the community in the case of a defendant accused of certain crimes (e.g., certain drug offenses, terrorism, human trafficking, and crimes involving a minor victim).

Id. at 144. See also 18 U.S.C. § 3142(e)(3). Major Leary proposes applying such a rebuttable presumption to the military (without identifying any specific offenses that would qualify):

Applying the BA’s rebuttable presumption to the pre-trial confinement system in the military is a feasible solution to prevent the issue that presented itself in SGT Evenson’s case—the failure to timely address the flight risk associated with the serious nature of the charged crimes and a potential life sentence facing an accused. The rebuttable presumption meets constitutional muster and can practically be applied to the military system. Therefore, it is worth consideration as a means of mitigating the pre-trial risk of flight or additional misconduct inherent in cases like SGT Evenson’s.

221 Mil. L. Rev. at 151.

I’m not sure if I agree that such a rebuttable presumption is a good idea in the military justice system, but I think I could be convinced. One thing that concerns me is the fact that pretrial confinement is all-or-nothing, due to the lack of bail. As Chief Judge Sullivan wrote two decades ago:

The Courtney decision [Courtney v. Williams, 1 M.J. 267 (C.M.A. 1976)], for instance, assures the pretrial release of all except those whose confinement is absolutely necessary and, in this manner, seeks to minimize the prejudice to military accused from the absence of any opportunity for bail, an opportunity that is constitutionally guaranteed to civilian criminal defendants under the Eighth Amendment.

United States v. Kossman, 38 M.J. 258, 265-66 (C.M.A. 1993) (Sullivan, C.J. dissenting).

However, Major Leary’s article is well-written and the proposal deserves serious consideration.

There was a lively debate in the comments section of my October post titled: The Army CCA applies Cimball Sharpton to (erroneously) affirm larceny from a debit card holder. In my post I argued that a service member’s fraudulent use of another person’s debit card was a larceny from the merchants where the card was used, and not from the account holder, even when the fraudulent use of the card caused a reduction in the account holder’s balance, and I concluded that the Army CCA was wrong to affirm (in a published opinion) an appellant’s guilty plea to larceny from another service member based on such fraudulent activity.

That conclusion drew some thoughtful opposition in the comments section, but I stuck with my analysis. The appellant petitioned CAAF for review on December 3, 2014 (No. 15-0202/AR), so it will likely be a few more months before we learn if I was right.

But an article published in the November issue of the Army Lawyer adds support to my argument:

In the case of a debit card relationship, an account holder has deposited money with the bank against which the POS or ATM transactions are drawn; however, due to the military courts’ application of commercial law principles, the account holder is not the “owner” of her deposits within the meaning of Article 121. Absent special arrangements, the title to the money deposited is transferred to the bank when a deposit is made by the account holder into his her account.

This is true because money deposited with a financial institution, absent special arrangements, is considered a general deposit. In the case of general deposits, “[t]he general transaction between the bank and a customer in the way of deposits to a customer’s credit, and drawing against the account by the customer, constitute the relation of creditor and debtor.” As such, there “is nothing of a trust or fiduciary nature in the transaction, nor anything in the nature of a bailment . . . or in the nature of any right to the specific monies deposited.” Thus, the account holder has neither title to nor possession of the money in his or her debit account—only an agreement from the bank “to pay an equivalent consideration when called upon by the depositor in the usual course of business.”

The same is true in the case of a credit card agreement. The relationship between the bank and the account holder is one of creditor and debtor—the roles being reversed such that the account holder, not the bank, is the debtor. Just as in a debit card relationship, the credit-card account holder has neither title to nor possession of the line of credit that is extended by the bank.

Major Benjamin M. Owens-Filice, “Where’s the Money Lebowski?” — Charging Credit and Debit Card Larcenies Under Article 121, UCMJ, Army Law., August 2014, at 3, 9 (direct link to article).

The article is a comprehensive review of this topic, and it includes a handy chart on the last page. I think the article is entirely consistent with my October post, and I encourage anyone litigating a larceny case to read both the article and my post.

That’s the title of my most recent contribution to the LexisNexis Emerging Issues Analysis in Military Law series, available here.

Note: This item is not available to the public for free. However, I believe that most military attorneys have access to it at no cost through service-provided research tools. I do not receive a percentage of any sales of this analysis.

That’s the title of an immensely valuable article authored by Army Major Takashi Kagawa and published in the October 2014 edition of The Army Lawyer. The article is available here.

Major Kagawa provides a fairly comprehensive overview of the immigration laws and how they are enforced, an analysis of the ways these laws can affect service members, and guidance for prosecutors and defense counsel. Additionally, the article includes a number of valuable appendices, one of which (Appendix G) includes a chart of (what looks to be) every offense listed in the MCM along with Major Kagawa’s analysis of the associated immigration consequences.

I think the article is essential reading for any military justice practitioner.

The link, here, isn’t working and directs you to the address http://nomorearticle31blog.wordpress.com/.  If it has gone the way of . . . sequestration (?) . . . it would be nice if TJAG School could at least allow all the prior posts to be accessible.

H/T OFFL

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.