Not sure how I missed this, but former CAAFlog contributor Commander Marcus Fulton is now a member of the Panel 3 of the Navy-Marine Corps Court of Criminal Appeals. Congratulations! There is hope for us all!
Update: Yesterday the Air Force announced that it recovered the data (link).
According to this report:
The U.S. Air Force has lost records concerning 100,000 investigations into everything from workplace disputes to fraud.
A database that hosts files from the Air Force’s inspector general and legislative liaison divisions became corrupted last month, destroying data created between 2004 and now, service officials said. Neither the Air Force nor Lockheed Martin, the defense firm that runs the database, could say why it became corrupted or whether they’ll be able to recover the information.
The same report notes, however, that the investigations involving sex issues are safe:
Air Force officials originally said information on sexual assaults might had been lost in the crash. After the article was published, they said that while sexual assault and harassment claims might have been part of the files lost, those types of investigations are backed up elsewhere. The inspector general does not investigate cases solely involving sexual assault. However, sexual assault or harassment might be tangentially part of an inspector general investigation, a service spokeswoman said.
So says Protect Our Defenders according to AP (story here). And while the folks at Protect Our Defenders apparently weren’t able to communicate how the MilJus system works to AP, see if you can spot the glaring error in the story, was the data provided to Congress about civilian declinations skewed? POD released a report Monday allegedly debunking the military data:
The records were obtained through the Freedom of Information Act by the advocacy group Protect Our Defenders, which provided the documents exclusively to AP. Protect Our Defenders is scheduled to release a report Monday that criticizes the Pentagon’s use of the cases to undermine support for Senate legislation that would mandate a major change in the way the military handles sexual assault allegations.
Here is the POD report. I have not reviewed their analysis. But we will update with our thoughts.
Thhe court martial of Army Master Sgt Omar Velez Pagan began in Fayetteville, NC reprots the Fayetteville Observer here. The Master Sgt. is accused of murderimg his mistress while assigned as a geo-bachelor in Panama.
The WaPo editorial bird weighs in on the Sgt. Bowe Bergdahl case, here. From the editorial:
We agree with those who say that Mr. Bergdahl’s conduct in leaving his unit was wrong, that it put lives at risk and that, despite his psychological issues, he should be accountable. At the same time, the Army may have contributed to this debacle by enlisting a soldier it shouldn’t have. And even without formal accountability, he has already suffered horribly for his actions.
In our view, the military justice system will pass this test to the extent it tempers judgment with due consideration of everything the case reveals about human frailty — and with mercy.
I am sure this will ignite comments, so please be mindful of the comments policy.
The Military Officers Association of America is hosting a Military to Civilian Success for Legal Professionals event on December 15, 2015, at the Ritz-Carlton, Pentagon City, 1250 S Hayes St, Arlington VA 22202:
While the broader economic recovery is underway, a lagging job market and excess real estate plague many metropolitan areas. Big law and government relations firms are adjusting to less work and constrained government spending. Accordingly, many once dependable job markets are sputtering. Judge Advocates preparing to depart military service need a focused program to expand their network and accelerate their transition from military service to civilian career success.
The workshop will focus on key aspects of a successful transition for military leaders, including:
- An expert panel of successfully transitioned legal professionals from a range of practice areas.
- Connections with legal recruiters.
- Networking strategies to accelerate your job search.
- Understanding the cultural and psychological aspects of career transition.
JAGs in Transition Seminar costs: $125
JAA Members: $99
Additionally, the Navy is hiring a Highly Qualified Expert for its Defense Counsel Assistance Program. The position announcement is available here.
Our choice for the #4 military justice story of 2012 was: Mental health and disease.
Numerous mental health issues captured military justice headlines that year, including CAAF’s review of the court-martial of Marine Private Caldwell, who pleaded guilty to wrongful self-injury without intent to avoid service (in violation of Article 134) for intentionally opening his wrists with a razor blade in what an en banc Navy-Marine Corps Court of Criminal Appeals alternatively called “a bona fide suicide attempt” and “a leadership challenge.” United States v. Caldwell, 70 M.J. 630, 633 (N-M. Ct. Crim. App. 2011). CAAF reversed Private Caldwell’s guilty plea in 2013, concluding that the plea inquiry failed to establish that his suicide attempt was to the prejudice of good order and discipline in the armed forces or of a nature to bring discredit upon the armed forces. United States v. Caldwell, 72 M.J. 137 (C.A.A.F. 2013) (CAAFlog case page).
Yesterday, National Public Radio’s All Things Considered released a lengthy report about the Army’s use of the administrative separation process in cases involving soldiers seeking treatment for a range of apparently severe mental health crises. The report is: Missed Treatment: Soldiers With Mental Health Issues Dismissed For ‘Misconduct.’
The report includes this sad observation:
The cases of the 10 soldiers we investigated raise a question: Why would commanders kick out soldiers for misconduct, instead of giving them more intensive treatment or a medical retirement on the grounds that they have persistent mental health problems? Sources both inside and outside Fort Carson suggested one possible answer: It takes less time and money to get rid of problem soldiers on the grounds of misconduct.
Here is a link to a story out of the NJ National Guard where a federal jury acquitted a soldier in a case involving the alleged rape of another soldier. I think the words of a senior judge advocate that shared their reaction pretty much sums things up:
A federal prosecutor, the best of the best, couldn’t get a conviction on the exact type of case we deal with day in and day out. Maybe we need to change the rules in federal court.
I’ll be on the lookout for my new Federal Rules of Criminal Procedure.
An alert reader points out that last year’s Rolling Stone piece, The Rape of Petty Officer Blumer, was also authored by Sabrina Erdely. All the controversy about Ms. Erdely’s adherence to journalistic standards in her piece about a rape at a UVa fraternity house, see here (WaPo) and here (Rolling Stone statement), makes one wonder if there are people digging into the facts of the PO Blumer piece. I have no idea, but it is too bad that journalistic lapses are hurting the larger message.
It seems the Marine Corps may have its own version of a “birther” issue brewing. There are allegations the Commandant of the Marine Corps, Gen. James F. Amos, may not have actually attended The Basic School, which is required initial officer training for every Marine officer regardless of MOS. Congressman Walter Jones is asking SECDEF to investigate. From the Marine Corps Times, quoting Rep. Jones:
“As discussed, [Office of Legislative Affairs] informed me that Gen. Amos did not attend the Basic School in that he was an inter-service transfer from the Navy,” the email says. In follow-up conversations, Marine officials corrected that to say Amos completed TBS through a correspondence course in February 1977, but provided the congressman no documentation. Amos left the service one year later and served as a commercial airline pilot for Braniff Airlines until 1982.
The story was broken by attorney Lee Thweatt, known to many readers of this blog, who assisted LtCol James Weirick. If these allegations are true, it would be contrary to information that appeared on the Commandant’s official resume, presented to Congress during the confirmation process. That resume stated he completed The Basic School in 1972. While Marine Corps’ spokesman, Col Dave Lapan, insists that there is evidence the Commandant did complete TBS, Mr. Thweatt says his investigation shows otherwise:
Thweatt said Marine Corps records do not contain reference to any Marine officer named James F. Amos until 1973, “and even then, there is no reference to the January 15, 1972, date of commissioning General Amos listed on his résumé.”
Thweatt found and provided photographic evidence that Amos was stationed at Marine Corps Air Station Kaneohe Bay, Hawaii, from 1971 to 1972. In fact, Amos is shown to have ejected from an F-4 Phantom on or about July 12, 1972.
Apparently, it was not uncommon during the time period that the Commandant transferred from the Navy to waive the requirement for aviators to attend TBS, due to operational requirements in Vietnam. It will be interesting to see how this all plays out. More interestingly, if it turns out that dates and schools were falsified on the Commandant’s resume to Congress for confirmation, would that constitute a violation of 18 U.S.C. sec. 1001, a felony offense for making a false statement?
The military justice connection in the Ninth Circuit’s Posse Comitatus Act decision in United States v. Dreyer
A number of readers have written to me with thoughtful comments about the Ninth Circuit’s recent decision in United States v. Dreyer (link to slip op.) in which Judge Berzon, writing for a divided three-judge panel of that court, held that an NCIS agent’s violation of Posse Comitatis Act-like restrictions on direct assistance to civilian law enforcement activities requires application of the exclusionary rule as a deterrent:
The extraordinary nature of the surveillance here demonstrates a need to deter future violations. So far as we can tell from the record, it has become a routine practice for the Navy to conduct surveillance of all the civilian computers in an entire state to see whether any child pornography can be found on them, and then to turn over the information to civilian law enforcement when no military connection exists.
This is squarely a case of the military undertaking the initiative to enforce civilian law against civilians. “There must be an exceptional reason” to invoke the exclusionary rule for violation of posse comitatus-like regulations, United States v. Harrington, 681 F.2d 612, 615 (9th Cir. 1982), and the broad use of military surveillance of overwhelmingly civilian populations is an exceptional reason.
Slip op. at 21-22. The opinion also notes that a deterrent is needed because of “the government’s litigation positions” that include “arguing vehemently that the military may monitor for criminal activity all the computers anywhere in any state with a military base or installation, regardless of how likely or unlikely the computers are to be associated with a member of the military.” Slip op. at 22.
I haven’t seen this as much of a military justice issue, but this analysis by Professor Orin Kerr at The Volokh Conspiracy puts the opinion in a new light. Professor Kerr sees the decision in Dreyer as “a vestige of the mid-20th century free-form view of the exclusionary rule” that “if the government did something really bad, the federal courts had the power to keep the evidence out to deter violations and maintain the integrity of the courts.”
His take reminds me of opinions in three recent CAAF decisions in Air Force cases involving application of the exclusionary rule: Chief Judge Baker’s dissenting opinion in United States v. Cote, 72 M.J. 41 (C.A.A.F. Mar. 8, 2013) (CAAFlog case page), Judge Erdmann’s partial dissenting opinion, joined by Chief Judge Baker, in United States v. Irizarry, 72 M.J. 100 (C.A.A.F., Apr. 15, 2013) (CAAFlog case page), and Chief Judge Baker’s opinion of the court in United States v. Wicks, 73 M.J. 93 (C.A.A.F. Feb. 20, 2014) (CAAFlog case page).
Yesterday, this article from Cathy Young appeared on Slate.com. It’s an interesting read and well-worth the five minutes or so it takes to read it. Her final paragraph is particularly well stated:
Our focus on getting justice for women who are sexually assaulted is necessary and right. We are still far from the day when every woman who makes a rape accusation gets a proper police investigation and a fair hearing. But seeking justice for female victims should make us more sensitive, not less, to justice for unfairly accused men. In practical terms, that means finding ways to show support for victims of sexual violence without equating accusation and guilt, and recognizing that the wrongly accused are real victims too. It means not assuming that only a conviction is a fair outcome for an alleged sex crime. It means, finally, rejecting laws and policies rooted in the assumption that wrongful accusations are so vanishingly rare they needn’t be a cause for concern. To put it simply, we need to stop presuming guilt.
The new LtCol told Marine Times that he was promoted on time and that his promotion was never delayed, or was there an effort to remove him from the list.