CAAFlog » Military Justice Scholarship

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.

In an article published in the Spring 2015 edition of the Military Law Review (complete issue available here), Colonel Jeremy Weber, USAF, who is currently assigned as a judge on the Air Force Court of Criminal Appeals, observes that “no subject is more critical yet more neglected in appellate practice than standards of review.” Colonel Jeremy Stone Weber, The Abuse of Discretion Standard of Review in Military Justice Appeals, 223 Mil. L. Rev. 41 (Spring 2015) (available here).

Standards of review matter because many appellate issues are close calls. Trial judges are often called upon to rule on issues when more than one “right” answer may be possible; reasonable people in the trial judge’s situation may all agree on the correct legal framework for the issue but reach different conclusions. At the heart of the matter, the standard of review determines what the appellate court is doing when it reviews a trial judge’s actions. Is the appellate court simply determining the right “law” to apply to the issue, or is it making a judgment call about the trial judge’s determination? Does the appellate court consider the issue important enough that it must review the issue with a clean slate or do other interests dictate granting the trial judge some latitude in determining a course of action? Ultimately, then “a standard of review answers two similar, yet different, questions: (1) How ‘wrong’ the lower court has to be before it will be reversed, and (2) What is necessary to overturn the lower court’s decision?”

Weber, supra, at 43-44. The article begins with a brief discussion of four standards: de novo (for questions of law), plain error (for forfeited errors), clearly erroneous (for findings of fact), and abuse of discretion. The article then closely examines that final standard.

Judge Weber makes nine observations:

A. Abuse of Discretion is a Catch-All Phrase that Encompasses Review of Several Distinct Types of Issues

B. Abuse of Discretion Represents a Spectrum of Deference, Not One Fixed Standard

C. Military Appellate Courts Have Not Solved the Mixed Questions Challenge

D. Military Appellate Courts Are Generally Less Deferential Than Their Civilian Counterparts in Employing the Abuse of Discretion Standard

E. The Unique Authority of the Courts of Criminal Appeals Allows for Increased Appellate Scrutiny

F. Government Interlocutory Appeals Involve a Special Class of Abuse of Discretion Review

G. The Abuse of Discretion Standard Does Not Cover Review of Decisions by the Courts of Criminal Appeals

H. Military Judges Can Take Certain Steps to Increase the Amount of Deference Their Rulings Enjoy

I. Abuse of Discretion Review is Inherently Tied to the Issue of Prejudice

Below is the entire text of an open letter purportedly written by a female enlisted member of the United States Air Force. The original is posted here.

Maybe this letter is real, and maybe it’s a work of fiction; but its sentiment is undeniably true. The only certainty in the politicization of the military’s response to sexual assaults is that there will be victims.

Dear SARC,

I got up this morning as an Airman in the United States Air Force. I got up and I put on my uniform, I pulled back my hair, I looked in the mirror and an Airman looked back. A strong, confident military professional stared out of my bathroom mirror, and I met her eyes with pride. Then I came to your briefing. I came to your briefing and I listened to you talk to me, at times it seemed directly to me, about sexual assault. You talked about a lot of things, about rivers and bridges, you talked about saving people and victimization. In fact you talked for almost a full ninety minutes, and you disgusted me.

You made me a victim today, and I am nobody’s victim. I am an American Airman in the most powerful Air Force in the world, and you made me into a helpless whore. A sensitive, defenseless woman who has no power to protect herself, who has nothing in common with the men she works with. You made me untouchable, and by doing that you made me a target. You gave me a transparent parasol, called it an umbrella and told me to stand idly by while you placed everything from rape to inappropriate shoulder brushes in a crowded hallway underneath it. You put my face up on your slides; my face, my uniform, my honor, and you made me hold this ridiculous contraption of your own devising and called me empowered. You called me strong. You told me, and everyone else who was listening to you this morning that I had a right to dictate what they said. That I had a right to dictate what they looked at. That I had a right to dictate what they listened to. That somehow, in my shop, I was the only person who mattered. That they can’t listen to the radio because they might play the Beatles, or Sir Mix-A-Lot, and that I might be offended. That if someone plays a Katy Perry song, I might have flashbacks to a night where I made a bad decision. I might be hurt, and I’m fragile right? Of course I am, you made me that way.

You are the reason I room alone when I deploy. You are the reason that wives are terrified that their husbands are cheating on them when they leave, and I leave with them. When I walk into a room and people are laughing and having a good time, you are the reason they take one look at me and either stop talking or leave. They’re afraid. They’re afraid of me, and it’s because of you. They are afraid that with all of this “power” I have, I can destroy them. They will never respect me or the power and the authority I have as a person, or the power I have as an Airman, because I am nothing more than a victim. That I as a victim, somehow I control their fate. With one sentence, I can destroy the rest of their lives.

“He sexually assaulted me.”

I say enough. He didn’t assault me, you did; and I say enough is enough. If you want to help me, you need to stop calling me a victim. If you want to save me, you need to help me to be equal in the eyes of the people I work with. If you want to change a culture, you need to lessen the gap between men and women, not widen it. Women don’t need their own set of rules: physical training scores, buildings, rooms, raters, sponsors, deployment buddies. When I can only deploy with another woman ‘buddy’ you are telling me and the people around me that I can’t take care of myself. When you forbid me from going into my male friends room to play X-Box on a deployment with the other people on my shift, you isolate me. When you isolate me, you make me a target. When you make me a target, you make me a victim. You don’t make me equal, you make me hated. If I am going to be hated, it will be because of who I am, not because of who you have made me. I am not a victim. I am an American Airman, I am a Warrior, and I have answered my nation’s call.

Help me be what I am, or be quiet and get out of my way.

Believe the victim is a term so commonly uttered in the context of sexual assault prosecutions that it’s approaching a cliche. But “one of the fundamental tenets of our criminal justice system requires that we start by believing, not the accuser, but the accused—a concept more commonly known as the presumption of innocence.” Colonel Daniel J. Higgins and Major Shad R. Kidd, USAF, Start by believing – the Accused, The Reporter Volume 41, Issue 2, at 16 (2014) (available here).

Using psychology as an example, the authors highlight the different between care-giving and truth-seeking:

“The major role of psychologists working in clinical settings, whether as psychotherapists or as psychological evaluators, is to help the client. What is learned about the patient is used to benefit the patient in terms of personal growth and support. However, in forensic psychology the role of the expert is significantly different. Forensic psychologists are charged with using the results of their assessment to help or educate the court, without regard to the potential benefits to the examinee.” The goal is to develop evidence and work toward truth—whether that is easy for the patient to experience or not. Both roles are important. Both roles are necessary. But they are distinctly different roles.

Higgins & Kidd, supra at 18 (quoting Irving B. Weiner, ed. Handbook of Psychology, 4 (2003)) (emphasis in original). Applying these principles to military justice, the authors conclude that:

Air Force leaders, and those tasked to advise them, should first look to context. If the context is justice (e.g., determining disposition of allegations, trial matters), “starting by believing the victim” should have absolutely no place in their decision-making or advice. If, on the other hand, the context relates to Special Victim Capability (e.g., humanitarian moves, VA services), “starting by believing the victim” may be appropriate.

Higgins & Kidd, supra at 18. An anecdote highlights the danger of conflating criminal justice with :

The pressure felt by the special court-martial convening authority was evinced in the push note that accompanied his referral recommendation. He clearly recognized the weakness of the case (late reporting, no forensic evidence, alleged victim with a very poor character for truthfulness, etc.) and the likelihood of acquittal, but he wrote that the Air Force “owed” her a court-martial. His thinking, as should be obvious to anyone familiar with the basic precepts of criminal law, was completely off-base. The military justice system owes society justice and the accused due process; it does not “owe” an accuser a court-martial. This convening authority’s statement is nonsensical from a military justice perspective but understandable from a services or treatment perspective—the problem is that the note was written in a military justice context.

Higgins & Kidd, supra at 19.

The article concludes with a powerful call to action:

As the guardians of the military justice system, it is our duty to ensure we provide America’s Airmen a fundamentally fair and impartial process. Doing so requires that we ensure all Air Force members are properly trained that in the criminal justice context, we must all start by believing the accused and never vary from that presumption unless and until his or her guilt has been proven by legally competent evidence beyond a reasonable doubt. Permitting any training to undermine these guarantees would constitute a failure of our most fundamental duty as judge advocates.

Higgins & Kidd, supra at 19.


Included in the most recent issue of the Military Law Review is Julie Dickerson, A Compensation System for Military Victims of Sexual Assault and Harassment, 222 Mil. L. Rev. 211 (Winter 2014) (available here).

The article considers and rejects numerous existing methods to compensate victims of crimes tried by courts-martial, concluding that none are adequate. For instance:

  • Civil suits against the Government (under a vicarious liability theory) are barred by Feres. Dickerson, supra, at 218.
  • No-fault compensation systems (VA disability and TSGLI) are “limited in scope.” Dickerson, supra, at 220.
  • Restitution is dismissed as “unlikely.” Dickerson, supra, at 225.
  • State compensation boards are deemed “inadequate.” Dickerson, supra, at 226.

The author then proposes creating a separate “Military Crime Victims Compensation Board” (MCB):

Organizationally, the MCB should be established under the DoD Office of the Under Secretary of Defense for Personnel and Readiness (Sec Def P&R). . . .

After the MCB reviews a victim’s application and determines the compensation owed, the payment order would be sent to the Defense Finance and Accounting Service (DFAS), the victim, and the perpetrator. The DFAS would wait thirty days, and if no notice of appeal is filed, pay the victim and take action to garnish the perpetrator’s pay. To administer appeals, the Sec Def P&R could utilize the services of judges assigned to the Defense Legal Services Agency, which already has an appeal process in place for DFAS claims and security clearances. If the offender is discharged from the service, DFAS should refer the offender’s debts to the Treasury Department for collection through the Internal Revenue Service (IRS).

Dickerson, supra, at 241. Notably, the author acknowledges that this creates a financial incentive to make an allegation against a service member:

[H]aving the opportunity to apply for compensation within the military will incentivize more victims to report either formally or informally to the authorities.

Dickerson, supra, at 240-41. Of course, such an incentive is equally present for legitimate and false allegations. The article addresses this issue only briefly and tangentially:

Though the MCB provides compensation as a post-appellate process, some defense attorneys may try to use the process during the cross-examination of a victim at criminal trials, which may occur in courts-martial, state courts, or U.S. district courts, depending on the location of the offense, arguing, essentially, that the possibility of compensation creates perverse incentives for the victim to file a false report. Even so, the defense’s argument would not necessarily be persuasive or decisive. Victims have been able to sue perpetrators in tort after criminal trials for decades and prosecutors have nevertheless been able to obtain convictions.

Dickerson, supra, at 259-60.

There are two additional notable aspects to the article.

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There is an interesting article about mental health issues in the recent issue of the Military Law Review: Major Cara-Ann M. Hamaguchi, A Precarious Balance: Managing Stigma, Confidentiality, and Command Awareness in the Mental Health Arena, 222 Mil. L. Rev. 156 (Winter 2015) (available here).

The article:

examines the conflict between privacy and the military mission, and advocates for a better balance between the two by centralizing information for commanders and establishing specific administrative consequences for commanders and leaders who fail to respect established privacy standards. This article also examines the current uses of mental-health information for mission and readiness requirements, and calls for more transparency for Soldiers. While parts of this article apply to the entire spectrum of mental conditions and disorders, this article focuses specifically on combat-stress and Post Traumatic Stress Disorder (PTSD).

Hamaguchi, supra, at 161. The article’s main focus is on Army regulations and application, but its themes have broad application. For instance:

Confidentiality is critical to overcoming barriers to care associated with stigma. Soldiers who are otherwise too embarrassed or scared to seek treatment are more likely to do so with strict assurances of privacy. Many of them seek out mental-health providers and chaplains “off the record,” and they are often wary of even being seen talking to these professionals.

Hamaguchi, supra, at 175. And the article also identifies (but does not discuss in detail) what I consider to be a significant flaw in the military exception to HIPAA:

The default rule under HIPAA and DoD policy is that PHI cannot be released unless the patient authorizes release or an exception to HIPAA applies. Nevertheless, there is a HIPAA exception that accounts for the unique nature of the military mission. This “Military Command Authority” exception allows military and civilian treatment facilities to provide appropriate command authorities with access to a Soldier’s PHI to facilitate decisions pertaining to medical fitness and readiness. . . .

Notably, the exception to HIPAA does not provide commanders with unlimited access to a Soldier’s PHI. Rather, the information released must be the minimum amount of information necessary for mission accomplishment. Nevertheless, out of deference to commanders and for the sake of mission completion, this exception can be quite broad in practice.

Hamaguchi, supra, at 186-188 (emphasis added). I think it better to say that this exception often swallows the rule. This begs the question of why, if “confidentiality is critical,” HIPAA’s privacy rules are not more strictly enforced in the military. The article provides something of an answer in the form of a proposed regulation to address commanders who fail to respect protected health information:

AR 600-20 could establish a specific penalty for commanders who intentionally disregard privacy or who promote or tolerate stigma in their formations. As discussed previously in section VII, the penalties associated with HIPAA do not apply to commanders because commanders are not “covered entities” under HIPAA. In addition, although commanders are subject to criminal penalties under the Privacy Act, the likelihood and feasibility of a criminal prosecution is minimal. There are also no specific enumerated penalties for leaders or commanders who promote or tolerate stigma. While there are various policies that caution against promoting stigma, none of them are explicitly punitive in nature. To fill the gap, the addition of a Soldier Fitness chapter into AR 600-20 should include a penalty modeled after the penalties for EO and sexual-harassment policy violations.

Hamaguchi, supra, at 196.

Nine months ago, in Riley v. California, 573 U.S. __, 134 S. Ct. 2473 (Jun. 25, 2014) (link to slip op.), the Supreme Court unanimously held that the police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested. An article in the March edition of The Army Lawyer addresses how this decision is likely to affect military justice, with a particular focus on CAAF’s interlocutory decision in United States v. Wicks, 73 M.J. 93 (C.A.A.F. Feb. 20, 2014) (CAAFlog case page).

Though issued first, the Wicks decision is consistent with the Supreme Court’s decision in Riley. While the CAAF analyzed the privacy doctrine exception to the warrant requirement and the Supreme Court considered the search incident to a lawful arrest exception, both came to the same conclusion: cell phones implicate a unique privacy interest that is protected under the Fourth Amendment.

The major implications of Riley are twofold. First, the opinion rejected the application of the Supreme Court’s container search jurisprudence to cell phone searches. Instead, the Court affirmed a balancing test and held that test should weigh strongly in favor of an individual’s privacy interest when it comes to cell phones. Second, Riley introduced an unprecedented perspective on the Fourth Amendment in light of modern technology and set a new standard for courts to apply when considering technological advancements that arise in Fourth Amendment cases.

Lindsay Windsor, What Riley v. California Means for Military Justice, Army Law., March 2015, at 7, 10 (available here). Of note, the author clerks for CAAF’s Judge Stucky.

The article is a short and approachable analysis of cell phone (and, impliedly, other tech-based) privacy issues in the military. It also includes this particularly interesting analysis:

Soldiers often use their personal cell phones to communicate with other units for military purposes. Such use implicates serious security concerns, but personal privacy interests are at stake too. If the personal cell phone becomes the default work cell phone, an individual’s expectation of privacy in it may be reduced: the government’s interest in protecting sensitive information could permit a search of otherwise private communications on the personal cell phone. It is therefore in the interests of both national security and personal privacy for servicemembers to distinguish clearly their personal and professional use of government and personal electronic devices.

Windsor, supra, at 12.

Last month the Army Lawyer published an article by Major Jeremy Stephens, Explaining the Extraordinary: Understanding the Writs Process, Army Law., February 2015, at 33 (available here). The article provides a primer on extraordinary relief in the military justice system. Specifically:

This article will discuss the legal underpinnings of extraordinary relief and outline the standard procedures for filing writs by defense counsel, trial counsel, and special victim counsel. It will also compare these procedures to those used when trial counsel file appeals under the procedures of Article 62 of the Uniform Code of Military Justice. Following the conclusion, a pair of appendices is included to assist practitioners in the basic analysis of whether to file a writ or an Article 62 appeal.

Stephens, supra, at 33.

The December 2014 issue of the Federal Sentencing Reporter is titled Military Sentencing: Another Federal Sentencing System (Part 1). The full edition is not available for free online, but the table of contents (and previews of the articles) is available for free at this JSTOR link.

The issue includes an article by Chief Judge Baker of CAAF that is available for free online: James E. Baker, Is Military Justice Sentencing on the March? Should it be? And if so, Where should it Head? Court-Martial Sentencing Process, Practice, and Issues, 27 Fed. Sent’g Rep. 72-87 (2014-2015) (available here).

Noting that “military justice is an essential national security tool,” Chief Judge Baker’s article:

starts with a sketch of the military justice system to orient readers. Understanding that structure, the article then describes the sentencing process for special and general courts-martial. The article follows by identifying two core military sentencing questions: First, should commanders have authority to grant clemency? Second, should the military justice system adopt sentencing guidelines? With respect to each topic presented, the article does not attempt to answer the questions nor offer prescriptions. Rather, it seeks to identify the principal fault lines around which debate should, or will likely, fall. The article next presents ‘‘nutshell’’ introductions to additional sentencing matters that may warrant review as applied in the military context, including the handling of collateral matters, and the relationship between age and culpability.

Baker, supra, at 72.

The article is balanced, an interesting read, and worthy of your time this Saturday morning.

In an article published in the February 2015 edition of The Army Lawyer, Colonel James A. Young, USAF (Ret.) considers CAAF’s January 2014 decision in United States v. Moss, 73 M.J. 64 (C.A.A.F. 2014) (CAAFlog case page), in the context of the fugitive disentitlement doctrine. The article is titled Absent Without Leave on Appeal and the Fugitive Disentitlement Doctrine, and it is available here.

CAAF’s opinion in Moss was something of a novelty. The appellant was charged with desertion, but two weeks before trial she absconded. She was subsequently tried, convicted, and sentenced in absentia, and the CCA affirmed. CAAF then granted review, but the appellant remained absent and the court split 3-2 to find that the appellant’s continued absence (and her failure to ever clearly authorize an appeal to CAAF) deprived the court of jurisdiction because “the decision to appeal to [CAAF] is personal to an appellant.” 73 M.J. at 69.

Col Young analyzes the majority and dissenting opinions in Moss, and then considers the fugitive disentitlement doctrine:

In Ortega-Rodriguez v. United States, the Supreme Court noted that “[i]t has been well settled for well over a century that an appellate court may dismiss the appeal of a defendant who is a fugitive from justice during the pendency of his appeal.” The justifications for such a rule are: (1) concerns about the enforceability of the appellate court’s judgment against the fugitive; (2) escape is “tantamount to waiver or abandonment” of the right to appeal; (3) “[i]t discourages the felony of escape and encourages voluntary surrender”; and (4) “[i]t promotes the efficient, dignified operation” of the appellate court. But there are limitations to the court’s discretion to dismiss. There must be “some connection between a defendant’s fugitive status and the appellate process, sufficient to make an appellate sanction a reasonable response.”

Young, supra, at 5. He concludes that military caselaw muddies the waters of the applicability of this doctrine in court-martial appeals, and that “CAAF should adopt this discretionary doctrine.” Young, supra, at 7.

Yet one can only hope that CAAF will not soon have an opportunity to do so.

Yesterday I posted some analysis of the Secretarial implementation of guidance for Article 32 preliminary hearings. The ensuing debate was quite contentious. It continues in this week’s Scholarship Saturday, with Jonathan Lurie, The Transformation of Article 32: Why and What?, 29 Wis. J.L. Gender & Soc. 409 (2013) (available here).

The article is part of the Special Symposium Issue of the Wisconsin Journal of Law, Gender & Society: “The Threat From Within: Current and Alternative Response To Sexual Assault in the Military” (full contents available here). Jonathan Lurie is a professor emeritus at Rutgers University and he is the author of two books documenting the history of CAAF.

Professor Lurie’s article discusses the “‘notorious’ Article 32 investigation” in the Naval Academy sexual assault case (part of our #2 military justice story of 2014, and also a topic in my op-ed published in the Baltimore Sun), and he asserts that “the military judge who recommended that this case not be referred to a court-martial is the same official who permitted the excessive cross-examination of the alleged victim, later characterized as causing ‘heavy damage’ to the [sic] her testimony.” Lurie, supra, at 409-410. It was Navy Commander and military judge Robert Monahan who recommended that the charges not be referred for trial, and his report was quoted by the Washington Times as stating:

As difficult as it would be for the government to prove beyond a reasonable doubt that (the alleged victim’s) professed lack of memory at the time Midshipman Graham engaged in sexual activity with her was due to her being substantially incapacitated, the government’s task becomes extremely more difficult, if not impossible, due to the heavy damage done to (the alleged victim’s) credibility at the Article 32 hearing.

Of course, the accused who actually suffered a trial by court-martial (a kid by the name of Midshipman Josh Tate) was ultimately acquitted of sexual assault after a bench trial before a military judge.

But that won’t stop a good narrative. Professor Lurie continues:

[O]riginally intended to protect the defendant, somehow Article 32 evolved into a device for abusive cross-examination of the plaintiff. To be sure, the presiding officer easily could have restrained defense counsel from the type of abusive cross-examination inflicted on the complainant.

Lurie, supra, at 411. Commander Monahan – who justly enjoys widespread respect as an excellent military judge – apparently is little more than a neanderthal misogynist. And as for those ruffians who represented the now-exonerated accused, Professor Lurie has a few choice words:

It will be recalled that in the “notorious” cross-examination conducted on behalf of the Annapolis football team defendants, their counsel subjected the complainant to what at best can be described as barely on the cusp of acceptable trial conduct, and at worst totally beyond appropriate trial procedure.

Lurie, supra, at 413. You read that right; both the Article 32 investigation as a whole, and the cross-examination of the alleged victim in particular, are separately described as “notorious.”

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The Army Lawyer recently republished a 2002 article by then-Major Timothy C. MacDonnell: Military Commissions and Courts-Martial: A Brief Discussion of the Constitutional and Jurisdictional Distinctions Between the Two Courts (available here).

We’ve kept an eye on the progress of the military commissions at Guantanamo over the years (coverage here). The article provides valuable context to those proceedings.

The past few years presented an almost unrelenting stream of child pornography issues affecting military justice. CAAF’s decision in United States v. Barberi, 71 M.J. 127 (C.A.A.F. 2012) (CAAFlog case page), regarding what happens when some of the images supporting a child pornography conviction aren’t actually child pornography, is still somewhat unsettled, as this term CAAF is considering both a granted and a certified issue in United States v. Piolunek, No.s 14-5006/AF & 14-0283/AF (CAAFlog case page).

Additionally, various cases addressed whether certain images are child pornography, such as United States v. Rapp, No. 201200303 (N-M. Ct. Crim. App. Apr. 30, 2013) (discussed here); United States v. Blouin, 73 M.J. 694 (A. Ct. Crim. App. May 28, 2014), rev. granted, __ M.J. __ (C.A.A.F. Oct. 23, 2014) (CAAFlog case page) (and related cases discussed here); and United States v. Lang, No. 20140083 (A. Ct. Crim. App. Oct. 31, 2014) (discussed here).

Another set of recent cases considered other imagery of minors, such as United States v. Warner, 73 M.J. 1 (C.A.A.F. Dec. 6, 2013) (CAAFlog case page); and United States v. Moon, 73 M.J. 382 (C.A.A.F. Aug. 11, 2014) (CAAFlog case page).

And, of course, the President enumerated child pornography offenses under Article 134 relatively recently: in 2011 (discussed here).

All of this makes court-martial prosecutions in child pornography cases a complex minefield of legal issues. This week’s Scholarship Saturday focuses on the intersection where that minefield meets another: The Confrontation Clause.

Child pornography forces us to re-confront and reevaluate the Confrontation Clause questions that arose in these recent cases, and it also raises new ones. Child pornography possession or distribution cases force the issue because the evidence in a child pornography prosecution consists of a range of evidence types, most of which include business records in the colloquial sense but many of which are not business records that meet the legal standard of the evidentiary exemption. These range from digital data collected routinely in the course of business and without targeting a particular user, to digital evidence collected, labeled, and assembled in preparation for prosecution. The first seems to be textbook business record exception; the second sounds like testimonial evidence that triggers a Confrontation Clause right. In practice, drawing the line between the two is not so clear, and the determinations raise fundamental questions that will apply to digital evidence standards more broadly.

Merritt Baer, Who is the Witness to an Internet Crime: The Confrontation Clause, Digital Forensics, and Child Pornography, 30 Santa Clara High Tech. L.J. 31, at 40-40 (2014) (available here).

Service members facing trial by court-martial and ordered into pretrial confinement increasingly find themselves in civilian facilities due to the lack of a local military confinement facility. This can happen post-trial as well, when a convicted service member awaits transfer to a military facility. A recent article in the Army Lawyer provides a comprehensive overview of the issues that this hybrid system poses:

Marc Wm. Zelnick, Managing an Installation’s Utilization of a Civilian Confinement Facility: A Primer, Army Law., December 2014, at 6 (available here).