So says SecDef when addressing issues of convening authority power over sexual assaults convictions, see prior coverage here, here, and here (actually that’s SASC repeating it). 

Not so fast my friend, says a group of NIMJ directors, OFL, and others in this article over at Balkinization, titled, “How ‘Robust’ Is Appellate Review of Courts-Martial?”

At long last, here’s my post on the contents of the October 2012 edition of the Army Lawyer.

Fred Borch’s “Lore of the Corps” essay on the history of the Army JAG Corps’ crossed-pen-and-sword “Regimental Distinctive Insignia” is available here.

Major Daniel Murphy’s article on fine-enforcement confinement is available here.

And Captain Sasha Rutizer’s article on “How the Adam Walsh Act Shields Reproduction of Child Pornography in Courts-Martial” is available here.

The October 2012 edition of the Army Lawyer is now online here, with much of interest to we military justice wonks.  But my links to its contents will have to wait until tomorrow evening.

The Winter 2012 edition of the Military Law Review is now online here. The issue includes only one article, but that article is 328 pages long, including its extensive appendices:

Major John W. Booker, Major Evan R. Seamone & Leslie C. Rogall, Beyond “T.B.D.”  Understanding VA’s Evaluation of a Former Servicemember’s Benefit Eligibility Following Involuntary or Punitive Discharge from the Armed Forces, 214 Mil. L. Rev. 1 (2012).

Here’s a fascinating article from Joint Forces Quarterly by Marine judge advocate Linsday Rodman that, among other worthy points, analyzes the 19,000 statistic that is frequently — though, as the article demonstrates, misleadingly — cited as the annual number of sexual assaults in the military.

The article also discussed the overprosecution problem — the phenomanon of convening authorities referring weak sexual assault cases to trial, sometimes despite contrary advise from their legal advisors.  Such overprosecution, the article notes, has the perverse effect of increasing the military’s sexual assault acquittal rate:

When a prosecutor does not have good facts, conviction cannot be the expectation. Nor should we want there to be a conviction in many of those cases. That would require a standard below the “beyond a reasonable doubt” standard, creating an exception in criminal law for sexual assault cases in direct contravention of the Constitution.

The “September 2012″ issue of the Army Lawyer is now online here.  The issue has three articles of interest to we military justice wonks.

First is a two-page essay by Regimental Historian Fred Borch called, Investigating War Crimes:  The Experiences of Colonel James M. Hanley During the Korean War.

Next is MAJ Jason M. Elbert’s article, A Mindful Military:  Linking Brain and Behavior Through Neuroscience at Court-Martial.

Finally, there’s LTC Mark Kulish’s article, A View from the Bench:  Charging in Courts-Martial.

But here’s a curious aspect of the “September 2012″ issue of the Army Lawyer:  MAJ Elbert’s article cites six web sites “last visited Feb. 1, 2013.”  See Army Law., Sept. 2012 at 4 nn.1, 2, 5, 5 nn.11, 19, 11 n.132, and another “last visited Jan. 9, 2013.”  Id. at 19 n.277.  The non-military justice article that follows cite two websites “last visited Jan. 12, 2013.”  Id. at 25 n.1., 32 n.98.  And a book review cites two websites “last visited Dec. 21, 2012.”  Id. at 46 nn. 4, 5.

Why doesn’t the Army Lawyer make its labels reflect reality and skip the October 2012-February 2013 issues of the Army Lawyer and call the next issue what it actually is:  the March 2013 issue?

Because my earlier post about WSJ commentary on the President’s release of a white paper addressing the legal basis for drone strikes prompted feedback on additional commentary, here’s a grab bag of commentary from around the web on the white paper:

• NIMJ’s own Prof. Gene Fidell, here (via Der Spiegel)
• USCGA Professor Glenn Sulmasy,  here (via The Day)
• Prof. David Kaye, ASIL Executive Council member, here
• Prof. John Yoo, here (WSJ via Lawfare)
• Prof. Kenneth Anderson, here (via Lawfare)
• Rosa Brooks at FP National Security page, here and here
• Prof. Mary Ellen O’Connell, here (via NYT–though none of the NYT links are working today)
• Prof. Eric Posner, here (via Slate)
• Various links to media coverage here (via Lawfare)

[Pardon the earlier typos and failure to include titles and descriptions of various authors (and the duh moment on Prof. Posner)]

Read more »

The Fall 2012 edition of the Military Law Review is now online here and it’s a good one for we military justice wonks.

Here’s a link to LT Randall Leonard and LT Joseph Toth’s article, Failure to Report:  The Right Against Self-Incrimination and the Navy’s Treatment of Civilian Arrests after United States v. Serianne.

Here’s a link to MAj John Lorank Kiel, Jr.’s article, War Crimes in the American Revolution:  Examining the Conduct of Lt. Col. Banastre Tarleton and the British Legion During the Southern Campaigns fo 1780-1781. (Okay, I realize that’s really a LOAC, not military justice, piece, but it still looks like a cool article.  And it tells us that Tarleton dropped out of law school at Oxford’s Univeristy College.)

Speaking of Brits, here’s a link to the 39th Kenneth J. Hodson Lecture in Criminal Law by Major General Michael D. Conway, Director General of Army Legal Sevices, British Army.

The August issue of the Army Lawyer is now online here.  It includes the following two articles of interest to we military justice wonks:

Major S. Charles Neill, A Primer on Trial in Absentia, Army Law., Aug. 2012, at 4.

Lieutenant Colonel Tiernan P. Dolan, Sentencing:  Focusing on the Content of the Accused’s Character, Army Law., Aug. 2012, at 34.

LexisNexis has published Military Court Rules of the United States, a compendium of the rules governing practice in the military justice system and the military commission system edited by Yale Law’s Gene Fidell.

The volume’s sheer heft is a reminder of the unnecessary proliferation of rules in our purportedly “uniform” military justice system.  For example, the volume contains the separate Rules of Professional Conduct for the Department of the Navy, the Army, Air Force, and Coast Guard.  It includes the Joint Courts of Criminal Appeals Rules as well as the court-specific rules of the Navy-Marine Corps, Army, and Air Force Courts of Criminal Appeals.  It includes the separate rules of practice for Air Force, Army, Coast Guard, and Navy-Marine Corps courts-martial, as well as circuit-specific rules for the Navy-Marine Corps trial judiciary.  And it includes the rules for the military commission system — an entire parallel structure that could have been avoided by trying the Guantanamo cases in courts-martial, as authorized by Article 18 of the UCMJ.

In addition to the rules themselves, the volume includes a forward by Gene Fidell and provocative introductory essays, including one by professional responsibility guru extraordinaire Lawrence J. Fox and another co-authored by our very own Judge Mathews the Greatest.  The book also contains a preface by, as Missy Piggy would say, moi.

I’ve suggested before that fiscal constraints will render our current military justice framework unsustainable.  Increased jointness, which will create increased efficiencies, is inevitable.  The Military Court Rules of the United States highlights redundancies that may prove to be low-hanging fruits in the budget tightening to come.

The July 2012 issue of the Army Lawyer is online with a couple of articles of interest to we military justice wonks.  First is MAJ Nathan J. Bankson, A Justice Manager’s Guide to Navigating High Profile Cases, Army Law., July 2012, at 4.  Then there’s LTC Fansu Ku, Claiming Privilege Against Self-Incrimination During Cross-Examination, Army Law., July 2012, at 31.

The June issue of the Army Lawyer is now online here, including this primer on use of good military character evidence.  Fred Borch’s Lore of the Corps essay of the month is about the history of the Military Rules of Evidence.

An excellent memorial/tribute the the work of Prof. David Baldus is available this month from the Iowa Law Review, here.  The piece by Chief Judge Baker is particularly moving. 

Prof. Baldus’ study (published posthumously), Racial Discrimination in the Administration of the Death Penalty: The Experience of the United States Armed Forces (1984-2005), is a must read for military justice practitioners.

H/t to the Iowa Law Review staff for sending me a copy.

I would be grateful for information on post-Solorio courts-martial with one or more specifications that would have been found non-service-connected under O’Callahan and Relford. Please give specifics by comment here or by email to eugene.fidell@yale.edu.

The Summer issue of the Military Law Review, now online here, has a timely article of interest to we military justice wonks:  Captain Brittany Warren, The Case of the Murdering Wives:  Reid v. Covert and the Complicated Question of Civilians and Courts-Martial, 212 Mil. L. Rev. 133 (2012).  Also of interest is Brigadier General Thomas L. Hemingway’s Sixth Annual Prugh Lecture in Military Legal History about his experience as the military commission system’s legal advisor.