CAAFlog » Practicum

There is a very interesting issue going on which in some ways is relevant to some of the past and continuing discussions regarding SVC’s, etc.

What does MRE 410 say?

 “Evidence of the following is not admissible against the accused who made the plea or participated in the plea discussions:

(4) any statement made during plea discussions with the convening authority, staff judge advocate, trial counsel or other counsel for the government if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.”

How different is MRE 410 from FRE 410?  Not much I would say.

 “(4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.”

Enter Professor Cassell.  You may know him as the anti-false confession expert in false confession cases.  Professor Cassell starts out today’s blog post on Volokh Conspiracy as follows.

 On Friday, the 11th Circuit ruled that discovery can move forward in an important Crime Victims’ Rights Act case[.]  The narrow issue before the court was whether prosecutors and defense attorneys could assert some sort of “privilege” to prevent crime victims from reviewing the correspondence that lead to a plea bargain.

Here’s where it gets interesting (I’m jumping over some very interesting background facts).

 Among other relief [at the district court], we sought rescission of the non-prosecution agreement as a remedy for the violation of the victims’ rights.  To make the case for such a remedy, we moved for discovery of the correspondence between the U.S. and Epstein’s attorneys during the plea negotiations. Epstein’s attorneys intervened, arguing that Federal Rule of Evidence 410 and Federal Rule of Criminal Procedure 11 create a privilege for plea negotiations, barring release of the correspondence.  They also argued that the court should find that the materials were protected under the work product doctrine or, alternatively, should be protected under a new “common-law privilege for plea negotiations.”

Here is a link to Doe 1 & 2 v. United States, et. al., decided 18 April 2014.

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In part five of my six part series about the military justice reforms in the FY14 NDAA, I discussed sections 1702 and 1706 of the NDAA (complete NDAA text available in Word here and in PDF here). Both of these sections made changes to Article 60, which gives the convening authority the power to act on the findings and sentence of a court-martial. Section 1702(b) of the NDAA completely rewrote Article 60(c) of the UCMJ, implementing major changes that limit a convening authority’s previously-unlimited power to disapprove a finding of guilty or reduce a sentence. Section 1706 of the NDAA created a new Article 60(d) that gives “a victim” the opportunity to submit matters to the convening authority before the convening authority takes action on the results of the court-martial.

Within section 1702 is express language making it effective 180 after enactment. But section 1706 does not include such language. Because of this, I made the following statement in part five of my series:

The change to Article 60(c) won’t take effect for six months, but Congress also created a new Article 60(d) in Section 1706 of the NDAA. The new Article 60(d) is effective immediately, and it gives “a victim” the opportunity to submit matters to the convening authority before the convening authority takes action on the results of the court-martial.

I’ve since learned of an alternative interpretation that reads the NDAA to make both sections 1702 and 1706 effective 180 days after enactment. I suspect that this interpretation is based on the fact that at the beginning of section 1706 are the words “…as amended by section 1702…,” and that the alternative interpretation reads this language to incorporate the effective date from section 1702 into section 1706. But for the following reasons I respectfully disagree with this interpretation, and I maintain my belief that Congress intended a victim to have the right to submit matters immediately.

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A reader forwarded on the most recent version of the Rules of Practice Before Army Courts-Martial (10 Sep 13), which includes the following new rule:

RULE 2.3: Special Victim Advocate (SVA) Requirements.
RULE 2.3.1: Applicability. As stated in the Preamble, the Rules of Court apply to all counsel practicing before Army courts-martial. Accordingly, notwithstanding references to “both parties”, “counsel for both sides”, “party” or words to that effect, all Rules of Court apply to SVAs, including but not limited to the rules on motions practice in Rule 3.

Congress amended Article 120 in the FY12 NDAA, with the new statute taking effect on 28 June 2012. That date passed without any Presidential rulemaking to list elements, define terms, provide model specifications, or establish maximum punishments (the things usually found in Part IV of the MCM).

But a few months later the JSC published a huge proposal of changes to the MCM, including the Part IV materials for the new 120 offenses. Unfortunately, when the President finally signed the next Executive Order, he defined only the maximum punishments.

Because of this, today there are still no official model specifications (a.k.a. sample specifications) for Article 120, Article 120b, or Article 120c. But we do still have the JSC proposal including model specifications that, while not formally adopted (yet), are the next best thing.

So, working from the JSC proposal (as published in the Federal Register), I pulled out the proposed Part IV for Articles 120, 120b, and 120c, cleaned up the formatting, and saved it as a single Word document available here (link).

The file includes the elements, explanation, max punishments, and model specifications for each of the 44 ways of charging Article 120, the 17 ways of charging Article 120b, and the 6 ways of charging Article 120c.

The 2013 version of the indispensable Electronic Benchbook is available on the Army Trial Judiciary site at this link.

Unfortunately, the macro is still broken for users running the 64-bit version of Microsoft Office. If you’re trying to use the program and getting persistent error messages (“The macro cannot be found or has been disabled because of your Macro security settings.”), read this post for step-by-step instructions to fix the code.

Some users of the Army’s Electronic Benchbook have reported an unusual error message: benchbook error message

I’ve traced the problem to an error in the code that appears when using the 64-bit version of Microsoft Word. You can correct this problem yourself in just a few easy steps. Keep reading for an illustrated step-by-step guide to solve the problem.

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On Sunday I learned about two great opportunities for lawyers with a desire to help servicemembers. 

First, here is a link to the ABA’s Operation Stand By.  Operation Stand-By is a place for attorneys to help judge advocates:

Attorneys can register to join Operation Stand-By to volunteer time to receive calls or emails from military attorneys in need of attorney-to-attorney advice on state-specific legal information relating to your legal area of expertise, so they can further assist their servicemember clients.

Second, here is a link to the ABA’s Military Pro Bono Project.  The Pro Bono Project tells attorneys how they can help military families:

Attorneys can register to be contacted by the ABA Military Pro Bono Project with opportunities to provide pro bono assistance on behalf of military families when cases arise in your geographic and substantive area. Sign up for our weekly Case Opportunities listserv to stay up-to-date on the latest pro bono opportunities through the Project.

Both sound like great opportunities and Operation Stand By sounds like a great resource for judge advocates.  Thanks to Mary Meixner, the Project Director, for bringing it to our attention.

31(b)log announces that the 2012 Electronic Benchbook is now available at this link.

A note from the Trial Judiciary: The latest version of the Electronic Benchbook (v1.7) is now on the Trial Judiciary website.  You can also find the latest version of the “Unofficial Benchbook” on the website:

These versions of the Benchbook contain changes through 12-01.

CAAF’s order dismissing the Article 62 case of United States v. Hathorne, No. 12-6002/AF, on ripeness grounds, seems like an ignominious end to an unusually interesting case, but the reason for the dismissal betrays that this case isn’t over, and that it shouldn’t be overlooked.

For those who haven’t been watching this case, Judge Matthews The Greatest provided a good background in this post:

Airman First Class (A1C) Hathorne was identified as a potential witness in the court-martial of another airman, A1C JF, scheduled to be tried on drug charges at Holloman AFB, New Mexico.  During the course of preparing for trial, base officials learned that A1C Hathorne himself apparently used illegal drugs, and — fearing he would not cooperate in A1C JF’s prosecution — decided to ask the convening authority to grant him immunity.  On 3 Feb 2011, the convening authority sent the base legal office a memorandum containing a grant of immunity for A1C Hathorne and an order to answer questions from counsel.

The next day, trial counsel interviewed A1C Hathorne without informing him of the convening authority’s correspondence.  A1C Hathorne was advised of his rights, waived them, and confessed to a single use of cocaine in 2010.  A1C Hathorne did not learn of the grant of immunity until four days later, when A1C JF’s counsel provided him a copy during their interview with him.  A1C JF pled guilty pursuant to a PTA, and a month later, the government preferred a single charge and specification of wrongful use of cocaine against A1C Hathorne.

The trial judge dismissed the charge based on the trial counsel’s withholding of the immunity, the government appealed, the CCA reversed, and everyone denied a stay pending the accused’s petition to CAAF. Trial proceeded, resulting in a conviction, a “subjurisdictional” sentence, and a “rubber stamp” Article 64 review. CAAF then granted review of the immunity issue, and of an issue asking if the court had jurisdiction to hear an Article 62 (interlocutory) appeal once trial is concluded.

Two things happened at oral argument that cause me to believe that this case is much more important than it appears. The first was discussed a bit in Col Sullivan’s post, A question of etymology:

Appellant’s counsel, my colleague Maj Spencer Kerr, stated, “Appellant has already been discharged and, as far as the post-trial review goes, he has received a subjurisdictional sentence.” (12:42) Senior Judge Effron asked, “Where does this word ‘subjurisdictional’ come from?  Does it come from our case law?  Do you agree that there’s such a word?”  Maj Kerr responded, “It’s been used frequently, Your Honor.”  Following some laughter, the following exchange occurred:

Judge Effron:  Did you find it in any of our case law?
Maj Kerr:  No, Your Honor.
Judge Effron:  Did you find it in any dictionary?
Maj Kerr:  No, Your Honor.

There was more to the exchange, which began at 10:40 of the argument audio and continued for about three minutes (I’ve uploaded an excerpt of just this section in MP3 format). Senior Judge Effron was discussing whether this appeal was ripe, due to the fact that the Judge Advocate General has the authority, under Article 69(d)(1), to refer the case to the CCA for review under Article 66. The Senior Judge wasn’t questioning the origin of the term “subjurisdictional,” he was questioning the legitimacy.

The avenues of review for an approved special court-martial sentence are either review by a CCA under Article 66 (punitive discharge or confinement for 1 year), or review by a judge advocate under Article 64 (all other cases). When the review is under Article 64, the Judge Advocate General can take further corrective action, under Article 69, on petition of the accused or sua sponte. That action can include referral to a CCA for review under Article 66. Graphically it looks like this:

Of course, there are few guarantees in this appellate process, and referrals from a JAG to a CCA are rare, just as are reviews by the Supreme Court (or even by CAAF, relatively speaking). But there is still the opportunity for an impressive six levels of appellate review of a special court-martial (compared to only two levels of a typical federal criminal conviction).

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In two recent unpublished opinions, addressing courts-martial from Camp Pendleton, CA, and Camp Lejeune, NC, the NMCCA took exception to the language used by convening authorities to suspend a sentence.

Both cases involve pretrial agreements that call for suspension of confinement “for the period of confinement served plus six months thereafter.” In implementing this provision, the convening authorities ordered:

…from the date of this action and continue for the period of confinement served plus six (6) months thereafter.”

United States v. Johnson, No. 201100629 (N-M Ct. Crim. App., April 5, 2012).

[t]he suspension period shall begin from the date of this action and continue for the remainder of the accused’s confinement plus 6 months thereafter.”

United States v. Gillespie, No. 201200024 (N-M Ct. Crim. App., April 12, 2012).

The CCA says this is wrong, and that “the six months would commence running when the appellant was released from confinement.” Johnson, Slip op. at 2; see Gillespie, Slip op. at 3 (time-served deal).

The issue arises because of an interesting confluence of factors (this isn’t discussed in the opinions, but comes from my experience). First is deferment, which is the postponement of the running of a sentence. Sentences to confinement begin to run on the date adjudged (whether or not actually served), and deferment postpones this until no later than the convening authority’s action. Next is suspension “for the period of confinement served plus…” This ensures that the period of suspension (probation) doesn’t end until the set time after the accused is released from confinement (so that he’s not on probation only while in confinement). Then there’s the fact that the convening authority can’t suspend a sentence except in his action. Finally, there’s the question of intent, since the pretrial agreement is interpreted in accordance with the principles of contract law.

Commonly, pretrial agreements will call for deferment of all confinement that is to be suspended, and then suspension for the time served plus some number of months (i.e., six months). If an accused actually serves one month and the balance of confinement is to be suspended for that plus six months, the suspension is for a total of seven months. Since the suspension can’t happen until the convening authority takes his action, one could reason that the seven month suspension begins on the date of the action.

Perhaps the pretrial agreements should be more explicit on when the period of suspension is to end (i.e., six months from the later of either the date sentence is announced or the date the accused is released from the unsuspended period of confinement). However, it looks like for now the CCA is going to make this interpretation.

MARADMIN 571/11, released today, announces a major change to MCO P5800.16A, Manual for Legal Administration, creating the Defense Services Organization.

The complete manual, with the change, is located here.

Highlights include:

  • Paragraph 2001.5.b: Equal funding for training, resources, and facilities (commensurate with mission requirements) for defense and prosecution functions.
  • Paragraph 2002.3.g: Primary duty of Regional Defense Counsel (RDC) is training, mentoring, and supervision of defense personnel in the region; any caseload should not interfere with these primary duties.
  • Paragraph 2002.6: Detailing of auxiliary defense counsel (Review Officers specifically excluded – outrageous!).
  • Paragraph 2003.1: Normal defense tour will be at least 18 months long.
  • Paragraph 2004.3: If a defense counsel is scheduled for reassignment, and the Senior Defense Counsel wants to detail that DC a case that will extend past the reassignment date, and the reassignment issue can’t be resolved locally, the matter will be forwarded to the CDC and then to the SJA to the CMC.
  • Paragraph 2006.1: “For detailing purposes, the CDC is the OIC under JAGMAN section 0130(b) of the DSO and is the the [sic] detailing authority for Marine defense counsel.” Wow.

Colonel John Baker, USMC, is the current Chief Defense Counsel of the Marine Corps (CDC), and has led a number of initiatives, including establishment of the DSO, intended to strengthen the detailed defense counsel system in the Marine Corps.

Last week, AFCCA heard oral argument in United States v. Datavs.  The hearing took place at the Nevada Supreme Court and, as Colonel Sullivan surmised, I had the opportunity to attend. 

SrA Datavs was tried in 2009 by a panel of officer and enlisted members on one specification of making a false official statement, in violation of UCMJ Article 107 , and two specifications of forcible sodomy, in violation of Article 125.  He pled not guilty to all three specifications but was convicted despite his pleas.  The members sentenced him to a dishonorable discharge, reduction to E-1, and total forfeitures.  The convening authority approved the sentence as adjudged. 

On appeal, SrA Datavs made four assignments of error: ineffective assistance of counsel, error by the military judge in limiting argument concerning sex offender registration, violation of RCM 1107 by imposition of total forfeitures with no confinement, and inappropriate sentence severity.  The government conceded the RCM 1107 violation, but otherwise urged the court to reject the appellant’s claims.  The court granted oral argument on the first assignment of error, concerning the performance of the trial defense team. 

The primary focus of the argument was on whether the trial defense counsel violated Strickland and Polk by failing to pursue appointment of a defense expert consultant in the field of sexual assault exams.  The government had an expert who testified that the victim sustained injuries consistent with forcible anal sodomy.  The defense requested an expert prior to trial, but the convening authority rejected their request.  The defense then moved to compel appointment of an expert consultant, but withdrew the request pursuant to an agreement limiting the scope of the government expert’s testimony.

On appeal, SrA Datavs argued that his counsel should not have given up on obtaining their own expert.  His appellate defense counsel, Major Michael Kerr, noted that such requests are routinely granted and cited post-trial submissions by the requested expert that contradicted the government witness’ testimony as evidence that the trial team should have persisted.  Without a defense expert, the cross-examination of the government witness was largely unsuccessful, and only one side of the case was presented to the members.

Government counsel, Captain Michael Rakowski, argued that the trial defense team adequately explained their strategy in the post-trial affidavits filed with the court.  In essence, the trial team believed they could successfully counter the testimony of the government expert, who they thought would be equivocal when crossed on the issue of consent .  They were concerned that persisting in their request for an expert would lead to a delay they did not want, because they knew of two witnesses who the prosecution team had not identified and whose testimony would be damaging.  They feared the government would find those witnesses during a delay and on balance concluded foregoing an expert was the better option.  Capt Rakowski argued that even if the defense strategy was deemed deficient, there was no prejudice, because the victim’s testimony alone would have been enough to secure a conviction.  He also noted that the trial defense team achieved an excellent result on sentencing — no confinement, despite a conviction on two specifications of forcible sodomy, is by almost any measure a defense win. 

Maj Kerr argued that the light sentence did not absolve the trial defense team of any shortcomings in the findings phase of the case.  If anything, he argued, the sentence could be construed as evidence that the members considered the government’s case to be weak.  He also took issue with the notion that the trial defense counsel had enough information to formulate a strategy, pointing to language in the original consultant request stating that the defense team had neither the training nor the experience to defend the case without expert assistance.  Whatever strategies they may have settled on thereafter could not be defended, he argued:  “Uneducated counsel cannot make strategic decisions.”  Moreover, because the military judge ultimately granted a delay despite the trial defense team’s wishes, they should have realized that the advantage they sought to gain by foregoing an expert was lost and renewed their request. 

The judges seemed troubled by the deal between the government and the defense.  Given the nature of the defense concerns (i.e., that the government was unaware of certain evidence), it would have been virtually impossible for the defense to fully explain why they were agreeing to what one judge called a sub-rosa agreement.  In my experience, when faced with withdrawal of a motion for an expert, the trial judge would ordinarily ask the accused whether his counsel advised him of their reasons for withdrawing the request and whether he believed their decision was in his best interest; but neither counsel suggested that such a colloquy occurred in this case.

The judges were also concerned about the trial defense counsel’s assertion that they lacked sufficient expertise to try the case without a consultant.  It’s easy to envision a distinction between the expertise needed to choose between several possible trial strategies and the expertise needed to pursue one or more of those possible paths: for instance, a counsel might not need the assistance of a DNA expert to determine that mistaken identity will not be a viable defense, even though such an expert would be required if identity was going to be the issue.  In some cases, however, the assistance of the expert might be needed to choose between strategies.  Neither side explored this issue in depth during argument.  It will be interesting to see how the court addresses it when the decision is released.

* Disclosure note: the senior trial defense counsel worked for me indirectly prior to my retirement.

This ABA Journal report on a new juror selection application for iPad targeted at criminal jury selection may be of interest to our iJudge Advocate readers. According to the article the app lets you quickly enter basic demographic info and background data for quick reference during juror selection. It doesn’t say it will make peremptory challenge decisions for you, but they are always coming out with updates to those apps, so you never know.

SCOTUSblog has posted a lengthy article which looks at how Justice Stevens’ retirement could affect the outcome of various issues that often come before the Court. A fascinating read, and a nice break from the usual “who will the President nominate and which names will the nominee be called during the filibuster” coverage.

Much noise has been made over videotaping investigative interviews (excuse me, “interrogations”). NCIS finally got on board not long ago. Anecdotally, defense counsel seem to love this, thinking that it will expose all manner of abusive practices by investigators. I’m not so sure, but I do suspect that tape will lead to far more convictions than acquittals.

Criminal investigators suffer from some pretty bad publicity and videotape is a great equalizer. For example, few agencies suffer from worse publicity than the Transportation Security Administration (TSA), which was recently accused of, well, let’s let the accuser tell it:

My son was taken from me.


My son was taken from me by the TSA agents at Atlanta Hartsfield-Jackson airport yesterday.

He was taken away from me and OUT OF MY SIGHT because his pacifier clip went off when I carried him through the metal detector.

Turns out TSA runs a blog, and has video. Lots of video:

After watching the video footage, you’ll see the video clearly shows that this invididual was never separated from her baby by TSA. You’ll also see that a lot of the other claims are also unfounded.

I see this sort of “here’s what really happened” video showing up a lot more in the future of military justice, and generally to the benefit of the government.