CAAFlog » Year in Review

Our #1 Military Justice Story of 2016 is the Military Justice Act of 2016, passed as Division E of the National Defense Authorization Act for Fiscal Year 2017 and signed into law by President Obama on December 23, 2016.

A bookmarked PDF of the MJA is available here.

The Act was the product of the Military Justice Review Group, an internal DoD working group created by the Secretary of Defense to conduct a comprehensive review of the UCMJ. As an internal group the MJRG’s meetings and deliberations were closed to the public, and there was little subsequent public debate about the group’s 1,302 page report and legislative proposal. The House and Senate adopted the MJRG’s legislative proposal in differing degrees, and the final legislation was worked out in conference committee. It’s not everything the DoD wanted, but it’s pretty close, and it’s the most significant changes to the UCMJ since the Military Justice Act of 1983.

The changes won’t take effect until the President establishes an effective date that need only be sometime before January 1, 2019 (1st day of the 1st month two years after enactment). Yet while Congress gave the President up to two years to make the Act effective, it only allowed one year for revision of the Manual for Courts-Martial (perhaps in recognition of the fact that the White House has been painfully slow to act on draft executive orders forwarded by the Joint Service Committee).

Of course we’ll analyze the MJA in 2017, and we’ll keep reporting on developments in military justice for the eleventh year. Stay tuned.

The last person executed as the result of a court-martial was Army Private First Class John A. Bennett’s, whose convictions for the rape and attempted murder of a child led the Court of Military Appeals to observe that “seldom, if ever, have we been faced with a record which revealed a more vicious offense, or an accused who had less to entitle him to any consideration by the fact finders.” United States v. Bennett, 21 CMR 223, 225 (C.M.A. 1956).

Bennett was hanged in the boiler room of the United States Disciplinary Barracks at Fort Leavenworth on April 13, 1961. See Dwight H. Sullivan, The Last Line of Defense: Federal Habeas Review of Military Death Penalty Cases, 144 Mil. L. Rev. 1, 76 (1994) (citing James J. Fisher, A Soldier is Hanged, Kan. City Star, Apr. 13, 1961, at 7).

The military gallows have been quiet since then, but the military’s death row experienced a flurry of activity in 2016 with notable developments in four capital cases.

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Our #3 Military Justice Story of 2016 is CAAF’s blockbuster decision in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page).

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Power to the people was a popular chant in the 1960s. But the better chant for 2016 was: Power to the CCAs! In five cases the Courts of Criminal Appeals flexed their muscles and prevailed.

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Deadlines – particularly missed deadlines – were a big story in 2016.

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Many call Article 6b of the UCMJ the Military Crime Victims’ Rights Act, because its provisions generally mirror those of the federal Crime Victims’ Rights Act, 18 U.S.C. § 3771.

Enacted as part of the 2013 changes to the UCMJ, and then modified the following year, the scope and reach of Article 6b is still somewhat unsettled. While not limited to alleged victims of sex crimes, Article 6b is most often invoked in such cases because Congress mandated creation of Special Victims’ Counsel programs in 10 U.S.C. § 1044e and the statute only makes those services available to “the victim of an alleged sex related offense.” Those counsel are authorized to assist alleged victims in a far-reaching set of circumstances, and they have brought a measure of chaos to courts-martial by demanding discovery, filing motions, and occasionally even sitting at a third table during proceedings while avoiding the requirements placed on actual parties to the case.

But 2016 brought some clarity to Article 6b.

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Defense counsel often tell an accused that he has one job: Keep your mouth shut. Marine Major Mark Thompson’s discussions with Washington Post reporter John Woodrow Cox illustrate why.

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Two cases tie for the #8 spot on this year’s list: United States v. Sterling, 75 M.J. 407 (C.A.A.F. Aug. 10, 2016), cert. pet. filed, __ S.Ct. __ (Dec. 23, 2016) (CAAFlog case page), and the continuing saga of the court-martial prosecution of Army Sergeant Robert “Bowe” Bergdahl (CAAFlog news page).

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The speedy trial right codified in Article 10 was our #10 Military Justice Stories of 2013 because – while the right was generally considered dead – developments that year had Article 10 rise up and give us its best Monty Python impression by asserting that it’s “not dead yet,” only to be silenced again by a sharply-divided CAAF in United States v. Wilson, 72 M.J. 347 (C.A.A.F. 2013) (CAAFlog case page).

But this year, in United States v. Cooley, 75 M.J. 247 (C.A.A.F. May. 6, 2016) (CAAFlog case page), CAAF affirmed the decision of the Coast Guard CCA that dismissed charges for violation of the Article 10 right to a speedy trial.

CAAF’s decision in Cooley was a fact-intensive application of the right and so I think it premature to declare Article 10 resurrected. But the UCMJ’s statutory speedy trial right is reanimated for sure, making it our #9 Military Justice Story of 2016.

It passed quietly, but September 22, 2016, was CAAFlog’s tenth birthday.

What a year it has been! It was particularly hard to pick the Top Ten Military Justice Stories of 2016, and this list of honorable mentions is as long as the top ten list itself.

Over the next few days we will continue an annual tradition for the ninth year, counting down the Top Ten Military Justice Stories of 2016. But before that, here are the stories that almost made the cut:

The April 5, 2016, confirmation of John E. Sparks as a CAAF judge. A retired Marine judge advocate who served as CAAF’s commissioner for nearly 15 years, Judge Sparks replaced then-Chief Judge Baker whose term expired on July 31, 2015.

The prosecution friendly changes to the Manual for Courts-Martial published on May 20, 2016. My post discussing these changes – including the weakening of the corroboration rule and limiting the exclusionary rule – was our most-viewed page in 2016.

• The government appeal in United States v. Henning, 75 M.J. 187 (C.A.A.F. Mar. 21, 2016) (CAAFlog case page), that unsuccessfully sought to use DNA evidence that implicated approximately 1 in 220 unrelated individuals in the general population.

• CAAF’s divided decision in United States v. Killion, 75 M.J. 209 (C.A.A.F. Apr. 19, 2016) (CAAFlog case page), holding that provoking speech must be measured by the audience that hears it.

• CAAF’s unanimous decision in United States v. Rogers, 75 M.J. 270 (C.A.A.F. May 16, 2016) (CAAFlog case page), holding that a member’s uncorrected misunderstanding about an intoxicated person’s ability to consent to sexual activity constituted bias.

• A deeply-divided CAAF’s decision in United States v. Martin, 75 M.J. 321 (C.A.A.F. Jun. 17, 2016) (CAAFlog case page), in which the majority found that defense counsel invited the erroneous admission of human lie detector testimony, but the dissenters condemned “grossly improper testimony from the victim’s husband explaining why he believed that his wife was telling the truth.”

• The rejection of an intuitive link between child enticement and possession of child pornography as sufficient to establish probable cause for a search in United States v. Hoffmann, 75 M.J. 120 (C.A.A.F. Feb. 18, 2016) (CAAFlog case page), and a similarly intuitive link in the still-pending case of United States v. Nieto, No. 16-0301/AR (CAAFlog case page).

The rhetorical gunfight between Secretary of Defense Ash Carter and the interest group Protect Our Defenders.

• The completion of four reports by the Judicial Proceedings Panel addressing: restitution and compensation for military adult sexual assaulta; Article 120; retaliation related to sexual assault; and statistical data regarding sexual assault prosecutions.

• Network issues that plagued CAAF and the Army and Air Force CCAs. CAAF’s website was offline in May, June, and August. The Air Force CCA’s website (which is on the same server as CAAF’s site) was similarly inaccessible, and was also inaccessible in December. The Army’s military justice websites were inaccessible to the public from early February (noted here) until early May.

Our #1 Military Justice Story of 2012 was the politicization of the military’s response to sexual assaults, and in that politicization the military sexual assault crisis was born. In the following years we saw a legislative rush to do something, and the Senate held hearings in March and June of 2013 and then a floor debate in 2014. Some of the subsequent changes to the UCMJ were our #1 Military Justice Story of 2013 and our #1 Military Justice Story of 2014.

But in 2015 things settled down.

Sure there were more changes to the UCMJ (enacted in the FY16 NDAA). But those changes are nothing compared to the fundamental transformations enacted in 2013 and 2014. Instead, 2015 was mainly a year of thinking about changes to the UCMJ.

For example, in February the Judicial Proceedings Panel released its initial report making eleven recommendations. Many of those recommendations focused on victims’ rights issues, but the Panel also recommended additional thinking about Article 120 and it formed a subcommittee to do just that. The Judicial Proceedings Panel Subcommittee released its report in December, recommending limited legislative changes (only 7 of the 17 issues warranted changes).

Additional thinking came from the Military Justice Review Group, which released its first report earlier this week. The report consists of a comprehensive evaluation of the UCMJ with detailed proposals to update some Articles, add others, and radically change a few.

These reports were the product of dozens of meetings (public and non-public) and thousands of hours of debate, deliberation, and review. Significantly, they lack the crisis mindset that seemed to permeate military justice policymaking in recent years past. They are deliberate proposals for comprehensive reform that were released to the public with plenty of time for real debate.

Our #1 Military Justice Story of 2015 is basically a non-story. The sky didn’t fall.

Hopefully it’s the beginning of a new trend.

Ronald Reagan said it best:


And a handful of cases from the past year reveal just how terrifying it can be when the Government comes to help.

The warning sign appeared in late 2014, with CAAF’s decision in the Marine Corps case of United States v. Vargas, 74 M.J. 1 (C.A.A.F. Dec. 8, 2014) (CAAFlog case page), our #6 Military Justice Story of 2014. In a 4-1 decision the court held that a military judge’s denial of a mid-trial recess is not a ruling that excludes evidence, meaning that the Government may not appeal the denial under Article 62. The accused in that interlocutory case faced a special court-martial for a single specification of assault consummated by a battery, and trial before members was expected to take three days. But trial proceeded faster than anticipated, and by mid-afternoon on the first day the prosecution was not prepared to present any more evidence until day two. So Government counsel requested a recess until the following morning. But the military judge denied the recess, leading to the appeal.

Yet one of the witnesses that the prosecution sought to call on the second day was a surprise substitute for a previously-identified witness, and then when the substitute arrived (from Afghanistan) it was discovered that he did not have the information the prosecution needed and a further substitute was required! These facts were just too much for CAAF, and Chief Judge Erdmann’s majority opinion excoriated “the government’s remarkably casual approach to witness production” and concluded that “any limitation on the government’s ability to present evidence was self-inflicted.”

In 2015 the Government’s self-inflicted wounds really piled up.

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Number 3 is a tough one for me to write about. In United States v. Akbar, CAAF, by a 3-2 vote, affirmed the death sentence for Sergeant Akbar following his murder of two officers and injuring 14 other servicemembers at the start of the Iraq War.

It’s tough to write about because capital cases are tough. I know, deep insight on our top ten list, right? But seriously, for those who have worked on capital cases, or even potential capital referrals, these cases consume you regardless of what side you are on. And while the government tosses out threats of capital referral and even does refer capital charges from time-to-time, the universe of counsel that have stood in the well before a panel in a capital case is thankfully small.

Col Sullivan described the difficulty of these cases like this once: when you are working on a capital case, it takes over your life. You end up feeling guilty going to the movies on a Saturday afternoon with you kids because you should be working on that motion, interviewing that witness, or preparing that expert.

Like any death-penalty case, this one involved dozens of issues. But the crux of the fight at CAAF was about ineffective assistance of counsel. The majority finds that the trial defense counsel were not ineffective and that their actions were the result of strategic decisions. There were two big decisions that the Court focused on. First, the decision to introduce Appellant’s diary in full to the members, over 300 pages that included plenty of harmful passages. Second, the decision to avoid “opening the door” to damaging cross-examination involving Appellant allegedly stabbing a MP with scissors days before the court-martial began. The defense avoided “opening the door” by not calling certain mitigation witnesses.

Another important issue was the voir dire. The defense employed a “ace of hearts” approach where they attempted to maximize the panel size on the theory that one vote means a life sentence so more members give higher odds of drawing that ace. Appellant ended up with 15 members on his panel.

A majority of the Court affirmed Appellant’s death-sentence. Of course, the President must sign the death-warrant before habeas proceedings can begin so realistically, we may be a decade or more away from any execution. Remember, as Dew Process pointed out, Gray was sentenced in 1988.

The dissent was powerful. Former CJ Baker wrote it, jointed by current CJ Erdmann. In it, he takes the whole system to task. Starting out powerfully, he writes, “Principle is hardest to hold in the face of countervailing virtue. For a judge that moment may arrive when knowing that is just, one must also consider what is fair. This is a case about whether or not the military justice system was fair, not whether it was just.”

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Number 4 is one of those grand announcements that comes across perhaps as a “duh.”

In United States v. Rivaschivas, 74 M.J. 758 (ACCA 2015), the Army CCA holds that for purposes for Article 43’s statute of limitations provision, the United States was at war in 2007. For all the veterans that were getting shelled, shot at, and serving overseas during 2007, this seems sort of obvious. And it was obvious to Army CCA as well.

Appellant went UA in December 2007. He remained in unauthorized absence till January 2014. Upon his return, he was charged with desertion. Pleading by exceptions and substitutions at his court-martial, he pled guilty to desertion from December 2007 to February 2008, when he claimed he attempted to turn himself in.

For whatever reason, the government did not attempt to prove up the longer period. As the opinion points out though, why would they? The maximum punishment for desertion is not tied to length of time. So the government gets its charged offense. The military judge accepted the plea and let’s call it a day.

But on appeal, Appellant raises, for the first time, the issue of the statute of limitations, claiming the military judge abused his discretion by accepting his guilty plea without a knowing and affirmative waiver of the statute of limitations. Arguing that the standard five-year statute of limitations applies, Appellant argues that his desertion ending in February 2008 was barred from prosecution in 2014.

Of course, a desertion during time of war has no statute of limitations under Article 43. ACCA reaches back to the Korean and Vietnam conflicts to find precedent that “time of war” for purposes of Article 43 is a functional test, a matter of “practically, of broad realism, as distinguished from narrow legalism” (apparently as opposed to CAAF’s view of appellate jurisdiction which is all about narrow legalism (see Top Ten Story #5)). Adopting a test of de facto war as opposed to a congressionally declared de jure war, ACCA looked to a number of factors including the nature of the conflict, the manner in which it is carried on, the movement to and presence of large numbers of personnel on the battlefield, the casualties involved, the sacrifices required, the drafting of recruits, national emergency legislation, executive orders, and the expenditure of large sums to maintain armed forces in the theater of operations.

Unsurprisingly, United States combat operations in Iraq and Afghanistan satisfied ACCA that there existed a de facto state of war in 2007. Accordingly, ACCA ruled that there was no time limitation under Article 43 and Appellant had no statute of limitations to waive.

Footnote 2 is what gets me. In it, ACCA acknowledges United States v. Averette, 19 C.M.A. 363 (1970) (as my first boss and mentor Nels Kelstrom would have said, “it’s in the red books, so it must be good.”), where the Court of Military Appeals held that the phrase “in time of war” for jurisdictional purposes under Article 2 applies only to war declared by Congress and did not apply to the conflict in Vietnam. Wasn’t the whole point of the UCMJ that it is “uniform?” It’s its first name after all. But the concept of a state of war varies based on article? Doesn’t strike me as a uniform way to interrupt the statutory scheme. Though it is hard to argue with the fact, as ACCA quotes the old cases, that the newspapers certainly make it sound like we are at war. And to those that served, congressional declarations don’t change the situation on the ground.