CAAFlog » Military Justice Scholarship

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[.]”

Read more »

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.

Read more »

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.

Read more »

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.

Read more »

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.

Read more »

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.

Read more »

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.

Read more »

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

In an opinion piece published yesterday by Bloomberg View and available here, Harvard Law professor Noah Feldman questions the constitutionality of the enumerated Article 134 offense of adultery with the demonstrably-false assertion that:

The adultery prohibition violates the fundamental right to privacy, regardless of whom it covers.

Professor Feldman’s piece was prompted by the claim of an Air Force Colonel (who is charged with rape, assault, and adultery) that the adultery offense discriminates against homosexuals because, according to this report:

the military’s definition of adultery as sex between a man and a woman hasn’t keep place with its definition of marriage, which now includes same-sex couples. That’s because the military’s adultery law requires “sexual intercourse” as an element of guilt, which the Pentagon defines as an act between a man and a woman.

“A homosexual man or woman couldn’t commit adultery as defined,” [the Colonel’s defense counsel] argued.

[Colonel] Caughey’s defense team maintains that because gay people get a pass, the charges violate the colonel’s rights under the 14th Amendment, which mandates equal protection under law.

This argument is nonsense, and has already been rejected by the Navy-Marine Corps Court of Criminal Appeals in United States v. Hackler, __ M.J. __, No. 201400414 (N-M. Ct. Crim. App. Mar. 17, 2016) (discussed here).

Professor Feldman, however, writes that “There’s a long history of the courts striking down laws that discriminate on the basis of sex because they reinforce stereotypes. Arguably, this law is just as bad. It’s possible to imagine a court rejecting it.”

No professor. It’s not. Article 134 doesn’t discriminate on the basis of sex and it’s hard to imagine a court striking it down.

As I explained in this post, the crux of an adultery prosecution is its deleterious effect on the military mission and not morality or the sanctity of marriage. Article 134 is a broad prohibition on any conduct that is prejudicial to good order and discipline or of a nature to bring discredit upon the armed forces, and adultery is merely one of the many non-exclusive ways to violate Article 134 listed in the Manual for Courts-Martial. Even if homosexuals don’t engage in sexual intercourse as contemplated by the Manual for Courts-Martial, an extra-martial homosexual relationship is equally subject to prosecution under Article 134 as a heterosexual one. And because such a prosecution hinges on prejudice to good order and discipline or service discredit – and not merely sex outside marriage (discussed here) – it does not infringe upon any right to sexual privacy, heterosexual, homosexual, or otherwise.

Professor Feldman ignores all of these factors.

Moreover, if anything heterosexual adultery has greater protection from prosecution than homosexual adultery.

Read more »

In an era when victims’ interests and the failures of the Department of Defense to adequately address sexual assault within its ranks are constant messages, perhaps SSgt Marks’s experience will remind us of the traumas suffered by the innocents accused and serve as a caution to those wielding the awesome power to prosecute.

That’s the final sentence of a compelling article in the most recent issue of the Air Force Reporter: Major Christopher J. Goewert, The Accused The Unacknowledged Victim of the Military’s Robust Prosecution of Sexual Assault, The Reporter, Vol. 43, No. 1 (2016) (direct link to article).

The article describes a sexual encounter, a subsequent (and lengthy) investigation, and the eventual acquittal of an Air Force accused (SSgt Marks is a pseudonym):

The investigation continued for over a year as determined agents located all of the party-goers and obtained statements which painted a picture of a consensual group romp—a spur of the moment orgy, which was embarrassing in retrospect, but to the guests was not criminal. SSgt Marks was duly charged with wrongful sexual contact and indecent acts.

The author’s use of the term duly charged is, itself, a little terrifying. But the article includes details of actual terror experienced by the accused:

My mind overflowed with the thoughts of what could happen: the odds were not in my favor. I was worried that everyone would believe her because she was saying she was a victim and wouldn’t believe in me. I felt like the decision was already made and I was fighting a losing battle—it was like I saw a wrongful judgment would be forced on me and there was nothing anyone could do to change it. I broke down and cried a handful of times. I became fatalistic about it.

Before debating military justice, one must understand key points about the system:

First, the military justice systems procedures closely parallel many of the procedures used in civilian criminal justice systems. Second, a military accused is entitled to most, if not all, of the constitutional protections that are available to someone being tried in a civilian criminal court. Third, commanders are an integral part of the military justice system. Finally, lawyers and judges are heavily involved at all levels of the military criminal justice system.

David A. Schlueter, American Military Justice: Responding to the Siren Songs for Reform, 73 A.F. L. Rev. 193, 204 (2015) (complete volume available here) (direct link to article).

From this position, Professor Schlueter’s article tackles three siren songs: Eliminating or reducing the commander’s prosecutorial discretion; Limiting court-martial jurisdiction to certain offenses, and; reducing the commander’s ability to grant post-trial clemency.

He concludes that reducing command discretion would undermine the system and good order and discipline in the forces, that limiting jurisdiction would create more problems than it would solve, and that the recent UCMJ changes limiting the convening authority’s clemency power should be abandoned.

The history of jury trials is rich with individual examples of nullification, a practice meant to bring about a just result or signal a change in the community conscience. Over time, the practice has become disfavored; civilian and military judges have prohibited nullification tactics in voir dire, 10 arguments, and instructions. Yet present panel guidance tells members to decide cases through consideration of the law, the evidence, and each members own conscience. And consequently, despite the military’s emphasis on strict obedience to the law, discretion exists within its justice system to allow members to hear arguments on the merits of both the facts and laws charged. Military judges should use this discretion and allow nullification in appropriate cases.

Major Michael E. Korte, He Did It, but So What? Why Permitting Nullification at Court-Martial Rightfully Allows Members to Use Their Consciences in Deliberations, 223 Mil. L. Rev. 200, 103-104 (Spring 2015) (direct link to article).

Recognizing that (and discussing the reasons why) efforts at obtaining jury nullification in a criminal case are generally barred, the author sketches out reasons why “in the limited circumstances of the factually guilty but morally blameless accused, nullification is an appropriate exercise of the discretion and trust entrusted to a panel comprised of those the convening authority hand-selected for their judicial temperament and experience.” Korte, supra, at 129. Those limited circumstances include a case that does not involve “only universally accepted criminal charges,” that presents evidence to “support an eventual nullification argument,” and that ends with an argument that “contain[s] the hallmarks of a nullification argument” (including appeals to the members’ conscience, discussion of the direct consequences of conviction, and questioning of the law at issue). Korte, supra, at 133.

The author also illustrates how current law allows for nullification. For example:

The military judge’s standard Benchbook instructions, however, allow panels the opportunity to acquit even when there is no reasonable doubt as to guilt. This opportunity is written into the standard instructions relating to the instructions on findings. These instructions state that where there is reasonable doubt as to the guilt of the accused, “that doubt must be resolved in favor of the accused, and (he) (she) must be acquitted . . .”

The instructions continue, describing the alternate scenario: “However, if on the whole evidence you are satisfied beyond a reasonable doubt of the truth of each and every element, then you should find the accused guilty.”

The significance of the differing standards cannot be understated. The rules for courts-martial protect the accused by mandating a “not guilty” verdict when more than one-third of the panel members have reasonable doubts as to guilt. The same rules, as delineated in the standard Benchbook instructions, do not expressly require a “guilty” verdict when the members have no reasonable doubt as to guilt. Thus, panel members who find that the government has met the elements beyond reasonable doubt have latitude to find the accused “not guilty” because the members merely should find the accused guilty. This deliberate language allows for nullification in the limited cases where the panel members find that the accused committed the offense, but they do not wish to convict. These instructions are not inconsistent with Article 51(c), which does not specifically require instructions on panel obligations where all elements are met, opting instead for a clear instruction that the accused is presumed innocent until guilt is established by evidence beyond reasonable doubt.

Korte, supra, at 133.

An article published in the recent edition of the Air Force Law Review considers the new Article 32 (analyzed in this post) and concludes that the new version is “not revolutionary and will not significantly alter the nature of the Article 32 process.” Major Christopher J. Goewert and Captain Nichole M.Torres, USAF, Old wine into new bottles: The Article 32 process after the National Defense Authorization Act of 2014, 72 A.F. L. Rev. 231, 247 (2015) (complete volume available here) (direct link to article).

The authors explain that “when the Article 32 investigation was conceived in 1949, it was intended to be a probable cause hearing and not a sweeping mini-trial.” Goewert and Torres, supra, at 236. Accordingly,

Amending the language of Article 32 from “investigation” to “preliminary hearing” will not change the complexion of Article 32 hearings in any substantive form. Although the text of Article 32 has superficially changed, the two most critical questions that were addressed at the Article 32 investigation, that of probable cause and what disposition should be made of the case, remain in the new Article 32 language.

Id. at 238. Significantly, the authors note that “while the language of the old Article 32 does not explicitly state that the preliminary investigation was meant to be used as a discovery tool, discovery has always been part of its purpose.” Id. at 239. They also note that “the role of defense counsel in seeking discovery at the preliminary investigation is now expressly limited.” Id. at 241. Nonetheless:

the process for conducting the Article 32 hearing described in R.C.M. 405 is similar to the process of a federal preliminary hearing, which means discovery might still be a practical benefit derived from cross-examining witnesses and reviewing evidence. . . . Although defense counsel may be restricted from going on a “fishing expedition” at the Article 32 preliminary hearing, similar to a federal preliminary hearing, it will still offer some collateral discovery benefits to the accused.

Id. at 244. Finally, considering what types of evidence the preliminary hearing officer may receive and consider under the new statute and rules, the authors write that:

R.C.M. 306 provides an extensive list of factors for the convening authority to consider. Since the Article 32 hearing officer has as one of his/her responsibilities to make a recommendation as to disposition to the convening authority, the hearing officer should consider evidence presented by either party that addresses any of these factors. These factors allow the defense to present evidence and cross-examine witnesses to an extent beyond that of a pure probable cause determination.

Id. at 246.