Catching up on prior news, for those that missed it, here (pdf) is a report from Heritage Foundation Fellow, Cully Stimson on “Sexual Assault in the Military: Understanding the Problem and How to Fix It,” from Nov. 6, 2013. Also covered at Lawfare.
The Air Force JAG School recently published the second part of volume 40 of its legal magazine The Reporter (available here). The issue includes three military justice articles:
Major Lisa M. Richard, USAF, surveys caselaw addressing searches of electronic devices in an article titled “Searching and Seizing Electronic Devices; What Do We Need to Know?” The article includes a brief discussion of United States v. Wicks, No. 13-6004/AF (CAAFlog case page), which CAAF is reviewing this term to consider a decision of the Air Force CCA that granted a Government appeal and reversed the trial judge’s ruling suppressing evidence seized from Appellant’s cell phone.
Major Christopher J. Goewert and Captain Andrew R. Norton, USAF, dispel sexual assault myths in a piece titled “Sexual Assault: Four Commonly Held Beliefs.” The four topics are:
BELIEF: There are More Sexual Assaults in the United States Air Force Than in the Broader Civilian Community
EVIDENCE: Studies Suggest That Sexual Assault in the Air Force and Society at Large Occur in Roughly the Same Numbers
BELIEF: Males are Only Sexually Abused by Other Men, the Occurrence of Which is Rare
EVIDENCE: Males are Sexually Abused by Females in Significant Numbers
BELIEF: Most Sexual Assaults are One-Time Bad Decisions Unlikely to Occur Again
EVIDENCE: Sexual Offenders are Often Repeat Offenders who Engage in Predatory Behavior
BELIEF: Bystander Intervention Training is a Complete Waste of Time
EVIDENCE: Bystander Intervention Training is One of the Most Effective Ways to Prevent Sexual Assault
Mr. Bradley E. Richardson provides “A Guide for Extraordinary Relief at C.A.A.F.” He discusses both post-conviction and interlocutory forms of extraordinary relief.
Two non-Military Law Review/Army Lawyer law review articles on Mil Jus to share today:
- Military Mediation as Military Justice? Conjectures on Repairing Unit Cohesion in the Wake of Relational Misconduct, 28 Ohio St. J. on Disp. Resol. 419 (2013) by Maurer, Dan (MAJ) [subscription to Lexis required]
- The Unusual Punishment: A Call for Congress to Abolish the Death Penalty Under the Uniform Code of Military Justice for Unique Military, Non-Homicide Offenses, 18 Berkeley J. Crim. Law 1 (2013), by Federico, Rich (LCDR)
Both are interesting in light of curreent Mil Jus cases in the news.
Of interest to MilJus Wonks are:
- The Disposition of Intoxicated Driving Offenses Committed by Soldiers on Military Installations, Lykling, Aaron L. (MAJ) [corrected, wrong Major]
- Notes from the Field: Making Justice Flat: A Challenge to the View That Deploying Commanders Must Relinquish Command and General Court-Martial Convening Authority Over Non-Deploying Forces, Smawley, George R. (COL)
- Lore of the Corps, “The Trial of a Korean War “Turncoat”: The Court-Martial of Corporal Edward S. Dickenson,” Fred L. Borch.
I’ve now read the most recent installment of “Lore of the Corps” and those following the PFC Manning trial will be interested in how CPL Dickenson defended against aiding the enemy charges.
An interesting article on the importance of the commander’s ability to overturn court-martial findings
I just finished reading a fascinating article by Colonel Andrew Williams, USAF, about the need to safeguard the commander’s authority to review the findings of a court-martial. The article is available on SSRN at this link. It explains that the factual sufficiency reviews performed by commanders and the courts of criminal appeals are critical safeguards against the structural flaws in the military justice system; particularly the fact that a court-martial deprives the accused of his right to trial by jury.
The article is lengthy, but well worth your time. Colonel Williams discusses the features of a jury that ensure reliability (size, unanimity, random assignment, etc.) but that are not features of a court-martial panel. He explains how this can lead to inaccurate results that require correction by reviewing authorities with the power to set aside the conviction. He also explains why it is not enough that just the courts of criminal appeals have this power, in part because not all cases are reviewed by a CCA and in part because factual sufficiency reviews by the appellate courts are themselves often erroneous (he cites numerous examples on pages 28-29).
Colonel Williams concludes his article with two recommendations: Congress should consider limiting courts-martial to the trial of disciplinary infractions, with general crimes tried in federal and state courts (like the policy change I proposed in this post). Alternatively, Congress should give court-martial panels the features of a common-law jury, by increasing them to twelve members that are randomly selected from the military community without regard to rank or position, and requiring unanimity to convict.
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)]
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: