CAAFlog » Military Justice Scholarship » Scholarship Saturday

There are renewed calls to take prosecutorial discretion away from military commanders. Last month, Senator Kristen Gillibrand (D-N.Y.) released a report arguing that sexual assault in the military is “pervasive” and that, to combat the problem, prosecutorial discretion should be vested in “independent military prosecutors.” Snapshot Review of Sexual Assault Report Files (September 2017). The Senator asserts that this change in prosecutorial authority is necessary to “maintain[] good order and discipline[.].” Id. That same rationale – maintaining good order and discipline – is regularly cited by those who argue the opposite – that commanders must retain prosecutorial discretion. Reconciling those views requires consideration of the possibility that the two camps are using different definitions of “good order and discipline.”

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The saga of Sergeant Bowe Bergdahl has inspired much discussion among lawyers and laypersons alike. This blog has covered the Bergdahl case’s development assiduously. A particularly animated discussion has developed around the question of whether the President’s commentary regarding the case has impermissibly tainted the military justice system’s ability to afford Sergeant Bergdahl a fair trial.

In an effort to reassure the public that the military justice system is made of sterner and more independent stuff than its critics might suppose, the White House recently issued a missive declaring:

The President expects all military personnel who are involved in any way in the military justice process to exercise their independent professional judgment, consistent with applicable laws and regulations.

This blog characterized that press release as being a “predictable statement of the obvious.”

A recent article by University of New Mexico Law Professor Joshua Kastenberg offers a vantage point from which to observe the unfolding controversy. His article in the Southwestern Law Review is entitled Command Responsibility in the Twenty First Century: The United States Basic Framework and Future Military (and Quasi-Military) Operations, 46 Sw. L. Rev 379 (2017). The article describes the character of Presidential command authority, the obligations that come with it, and the means of making a President accountable for it.

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The Military Code of the United States “stands alone among our public statutes in its retaining many provisions and forms of expression dating back from two hundred to five hundred years[.]”  Winthrop, Military Law and Precedents, 24 (2d Ed., 1920). However, throughout our history, one of the constants of military law has been change. The more significant changes have often been accompanied by the publication of scholarly works designed to describe those reforms and to provide relevant context. For example, Winthrop published the tome cited above in 1920 – just as Congress finished its four-year long enterprise of completely revising the Articles of War.

In the same spirit, Volume 49 of the St. Mary’s Law Journal will include an article entitled “Reforming Military Justice: An Analysis of the Military Justice Act of 2016” by Professor David A. Schlueter.

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Law Professor Christian Dahlman, of Lund University, Sweden, recently published an article entitled Unacceptable Generalizations in Arguments on Legal Evidence, Argumentation 31, 83-99 (March 2017), which he hopes “will enhance the clarity” of the evidence assessments made by legal decision makers, and “make them more reasoned.” Id. at 86.

The article starts by explaining that every argument regarding legal evidence comes with an inherent generalization, which may or may not be expressly stated.

Some generalizations are so trivial and uncontroversial that judges and jurors do not even think about them as premises in the argument. Other generalizations are problematic, and there are some arguments that trade on generalizations that are unacceptable.


Professor Dahlman spends his time exploring four ways that arguments might trade on unacceptable generalizations.

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In an upcoming essay, Vanderbilt Law Professor Nancy J. King posits that:

[State appellate courts are plagued by] a failure to correct wrongful convictions, the absence of supervision of lower courts’ handling of certain categories of issues of particular public concern, and unnecessary delay.

Criminal Appeals, in Academy for Justice, A Report on Scholarship and Criminal Justice Reform (Erik Luna ed., forthcoming 2017).

To support her contention that, in the States, the normal appellate process is insufficient, Professor King points to a 2013 study looking at hundreds of non-capital defendants who were convicted but later exonerated by DNA evidence. That study found that “courts provided no help to 90% of them.” Id.

To explain the helplessness of those State appellate courts, Professor King points to three culprits. First, she takes aim at “the deferential legal standards courts use[] to review trial-court decisions.” Id. at 4. She next points out that, because the evidence required to prove procedural errors is often not part of the record on appeal, “the normal mechanisms for judicial review” (which usually oblige appellate courts to consider only matters in the record of trial) do not adequately address claims like ineffective assistance of counsel, juror misconduct, or the government’s failure to disclose or preserve exculpatory evidence. Id. at 4-5. The final reason direct appeal failed so many innocent accused is that “some of those convicted of crimes they did not commit could point to no flaw in the proceedings that led to their convictions, even though new evidence supported their innocence.” Id. at 5.

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Last week, this column featured an article from Professor Emeritus Edward J. Imwinkelried concerning the “disturbing” prevalence of bad science which has been permitted to come before the fact-finder in American criminal trials. This week’s column features an article exploring potential solutions to that problem. The Harvard Law Review, as part of its Modern Courts Commentary Series, recently published a commentary by William and Mary Law School Professor Allison Orr Larsen entitled Judicial Factfinding in an Age of Rapid Change: Creative Reforms from Abroad.

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The UC Davis Legal Studies Research Paper Series recently released an article entitled Revising State Post-Conviction Relief Statutes to Cover Convictions Resting on Subsequently Invalidated Expert Testimony by former Army JAG, and prominent evidence law scholar, Professor of Law Emeritus Edward J. Imwinkelried.  The article posits:

Invalid expert testimony has become a disturbingly recurrent theme in the wrongful conviction studies.

Id. at 3.

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As CAAF continues to deliberate on the interlocutory prosecution appeal in United States v. Mitchell, No. 17-0153/AR (CAAFlog case page) (argued on Tuesday, April 4, 2017), involving suppression of the contents of the accused’s cell phone because military investigators continued to question him after he requested an attorney and that questioning led to the phone’s decryption, a Marine judge advocate’s student note in the Georgetown Law Technology Review is of interest.

In Cracking the Code: The Enigma of the Self-Incrimination Clause and Compulsory Decryption of Encrypted Media, 1 GEO. L. TECH. REV. 247 (2017) (available here), Jason Wareham concludes that:

the act of decrypting a hard drive is protected by the Fifth Amendment, as the act of decryption, not just the sharing of the password, is itself testimonial. Decrypting is testimonial logically because it provides access to files no other person can know of or otherwise access. The act of encryption is an admission proving both the existence of the accused’s files, and the accused’s possessory relationship to these files. Since only the person who encrypted an item would have the key to decrypt it (presuming the knowledge-based password), it shows possession, dominion, or control. Finally, the accused’s act of production would be a necessary link in the authentication for the files should the prosecutor seek to have the evidence admitted in court, as no one but the accused would be able to confirm that the files produced are indeed the accused’s files.

Wareham suggests that “the jurisprudence governing compulsory decryption is poised to devolve into an indiscernible morass,” and that “there is no discernible rule, standard, or analysis emerging for the use of the act of production or foregone conclusion doctrines as applied to encryption.” So, two are suggested:

First, as a legal principle, practitioners, governments, and courts alike should accept that compelling an individual to either produce a password or to compulsorily decrypt their digital files in a private knowledge-based-key scheme is presumptively a testimonial act. . . .

[Second] if the decrypted files are not cumulative then they add something to the government’s case. If they add something to the government’s case, then the decrypted files are a link in the chain of evidence against the accused. If the decrypted files are a link and the decryption comes from the accused, then his self-incrimination right has been infringed because he was compelled to join that chain.

CAAF may well avoid this morass in Mitchell by applying the plain and relatively-simple language of Mil. R. Evid. 305(c)(2) that any evidence derived from an interrogation after a suspect requests counsel is inadmissible unless counsel was provided. I suggested this approach in my argument preview.

Over 120 years ago, in Brown v. Walker, 161 U.S. 591, 596 (JUSTIA) the Supreme Court explained that the Founders created the Fifth Amendment’s right against self-incrimination as a “protest against the inquisitorial and manifestly unjust methods of interrogating accused persons which has long obtained in the continental system.” Specifically, the Court noted:

[The Fifth Amendment was created to protect an accused from] the ease with which the questions put to him may assume an inquisitorial character, the temptation to press the witness unduly, to browbeat him if he be timid or reluctant, to push him into a corner, and to entrap him into fatal contradictions, which is so painfully evident in many of the earlier state trials . . . [which] made the system so odious as to give rise to a demand for its total abolition.

Id. at 597.

Seventy years later, the Supreme Court found that the Fifth Amendment’s purpose – abolishing “inquisitorial” police practices – had yet to be satisfied. Accordingly, the Court issued its decision in Miranda v. Arizona, 384 U.S. 436 (1966) (oyez).

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The Military Justice Act of 2016 (MJA) was this blog’s #1 Military Justice Story of 2016, and will revolutionize the practice of military justice come January 2019. That revolution includes changes to the military justice system’s sentencing regime. One of the most aggressive changes is found in § 5301 of the MJA, which completely rewrites Article 56 to include language designed to temper a court-martial’s exercise of sentencing discretion.

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As recently discussed on this blog, the Judicial Proceedings Panel (JPP) is one of three entities chartered under the Federal Advisory Committee Act to conduct an independent assessment of the military justice system. In May of this year, a JPP subcommittee published its Report on Barriers to the Fair Administration of Military Justice in Sexual Assault Cases. The report offers a stark assessment regarding the perceived failure of the military justice system to treat service members accused of sexual offenses fairly:

Congress, the Department of Defense, and the White House have all worked to change the military system so that victims of sexual assault are treated with respect and are not further victimized by the criminal justice process. Other changes have been put in place to counter the perception that sexual assault predators were being protected from prosecution by military commanders.

Many of these changes have been valuable. One possible sign that they are having an effect is the increase in the past few years of the number of sexual assault cases being reported. While its cause cannot be identified with certainty, many believe that it indicates greater confidence that the criminal justice system will help the victim and vigorously prosecute the accused.

As constructive and important as these changes have been, they have also produced an unintended negative consequence: they have, as the Subcommittee was repeatedly told on its site visits, raised serious questions about the fundamental fairness of the military justice process when it comes to the treatment of the accused.

Report at 4.

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It is sexual assault report card season for the Department of Defense, and the actual numbers reported don’t necessarily match the political rhetoric. And, the political rhetoric is, perhaps, particularly strident this season. That could be a concern given CAAF’s recent decision in United States v. Boyce, CAAF Dkt. No 16-0546/AF (CAAFlog case page).

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Rule for Courts-Martial 306(c)(2) provides that a commander faced with a subordinate’s misconduct may elect to take administrative action against that subordinate. The discussion section to that rule makes clear that administrative separation is one of the adverse administrative actions available to a commander.

A recent report by the Government Accountability Office (GAO), entitled DOD Health – Actions Needed to Ensure Post-Traumatic Stress Disorder (PTSD) and Traumatic Brain Injury (TBI) Are Considered in Misconduct Separations, posits that servicemembers with mental illnesses may not be receiving fair treatment in misconduct-based discharge proceedings. Then, in an article published by the Military Law Review entitled Justice in Enlisted Administrative Separations, ___ Mil. L. Rev. ____, Vol. 225, Issue 1 (May 2017), Major Latisha Irwin argues that servicemembers accused of sexual offenses are also receiving unfair treatment in discharge proceedings.

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About 2,800 years ago, Homer described Odysseus’ encounter in Hades with an individual who was a betrayer of divine secrets, cannibal, and kin-slayer, all in one:

I saw also the dreadful fate of Tantalus, who stood in a lake that reached his chin; he was dying to quench his thirst, but could never reach the water, for whenever the poor creature stooped to drink, it dried up and vanished, so that there was nothing but dry ground- parched by the spite of heaven. There were tall trees, moreover, that shed their fruit over his head- pears, pomegranates, apples, sweet figs and juicy olives, but whenever the poor creature stretched out his hand to take some, the wind tossed the branches back again to the clouds.

A few decades ago, in United States v. Pallais, Richard Posner analogized the modern criminal defendant to that wretch, Tantalus:

The expansive code of constitutional criminal procedure that the Supreme Court has created in the name of the Constitution is like the grapes of Tantalus, since the equally expansive harmless error rule in most cases prevents a criminal defendant from obtaining any benefit from the code.

Mere days ago, the Harvard Law Review published an article entitled A Contextual Approach to Harmless Error Review, 130 Harv. L. Rev. 1791 (May 1, 2017), by Justin Murray, of the Illinois Attorney General’s Office. Mr. Murray posits that the harmless-error construct, conditioning relief on whether a given error has affected the result of the proceeding under review, is a mistaken approach. He asserts that such an approach fails to vindicate societal needs that are just as important as the truth-finding role that is served by upholding factually “overwhelming” convictions.

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Last month, The Army Lawyer published an article authored by Marine Major G.K. Logan entitled “Zealous Advocacy, Professionalism, and the Military Justice Leader.” Major Logan’s article explores the difference between zealous advocacy, which the adversarial system demands, and zealotry, which is abhorred by the rules of professional conduct and prevailing standards of civility.

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