CAAFlog » Year in Review

Military Rule of Evidence 404(a)(2)(A) (2013) is functionally identical to its civilian counterpart, Federal Rule of Evidence 404(a)(2)(A):

The accused may offer evidence of the accused’s pertinent trait, and if the evidence is admitted, the prosecution may offer evidence to rebut it.

American law has long recognized that an accused may use a pertinent trait of his or her own character as a defense against a criminal charge. Over a century ago, in Edgington v. United States, 164 U.S. 361, 363 (1896), the Supreme Court noted that this principle is so fundamental that “it is not necessary to cite authorities to show that, in criminal prosecutions, the accused will be allowed to call witnesses to show that his character was such as would make it unlikely that he would be guilty of the particular crime with which he is charged.”

Military law has also long recognized the admissibility of character evidence:

It may be regarded as settled law that evidence of good general character, as possessed prior to the commission of the alleged offence may be introduced by the accused as part of his defence. . .

W. Winthrop, Military Law and Precedents, 350 (2d ed. 1920). Colonel Winthrop’s treatise embraced the common law rule that permitted admission of general character, while the modern practice codified in the Military Rules of Evidence (established in 1980) allows only admission of a pertinent trait. See United States v. Clemons, 16 M.J. 44, 46-47 (C.M.A. 1983); United States v. Piatt, 17 M.J. 442, 445-446 (C.M.A. 1984). But “good military character is a character trait within the meaning of Mil.R.Evid. 404 (a)(1).” United States v. Court, 24 M.J. 11, 14 (C.M.A. 1987). And it is a pertinent trait in a court-martial because “the well-recognized rationale for admission of evidence of good military character is that it would provide the basis for an inference that an accused was too professional a soldier to have committed offenses which would have adverse military consequences.” United States v. Wilson, 28 M.J. 48, 49 n.1 (C.M.A. 1989).

But in the last month of 2014, in Section 536 of the National Defense Authorization Act for Fiscal Year 2015, Congress upended this settled law:

SEC. 536. MODIFICATION OF MILITARY RULES OF EVIDENCE RELATING TO ADMISSIBILITY OF GENERAL MILITARY CHARACTER TOWARD PROBABILITY OF INNOCENCE.

(a) Modification Required- Not later than 180 days after the date of the enactment of this Act, Rule 404(a) of the Military Rules of Evidence shall be amended to provide that the general military character of an accused is not admissible for the purpose of showing the probability of innocence of the accused for an offense specified in subsection (b).

(b) Covered Offenses- Subsection (a) applies to the following offenses under chapter 47 of title 10, United States Code (the Uniform Code of Military Justice):

(1) An offense under sections 920 through 923a of such title (articles 120 through 123a).

(2) An offense under sections 925 through 927 of such title (articles 125 through 127).

(3) An offense under sections 929 through 932 of such title (articles 129 through 132).

(4) Any other offense under such chapter (the Uniform Code of Military Justice) in which evidence of the general military character of the accused is not relevant to an element of an offense for which the accused has been charged.

(5) An attempt to commit an offense or a conspiracy to commit an offense specified in a preceding paragraph as punishable under section 880 or 881 of such title (article 80 or 81).

It’s hard to find a way that Congress got it right with this legislation, as there are numerous obvious flaws. For starters, this prohibition against the use of “general military character” does not limit testimony about other, more specific favorable character traits; for example, an accused’s character as a law-abiding person, proven by the testimony of fellow service members, is still admissible in every case (and it serves the same, or a better, purpose for the defense). Next, the enumeration of certain articles creates a false distinction between offenses; general military character is now expressly prohibited in a prosecution for rape in violation of Article 120, but not in a prosecution for murder in violation of Article 118. Finally, the purported application of the prohibition to any other offense where military character “is not relevant to an element” is functionally meaningless because under the Military Rules of Evidence military character is already only admissible where it is pertinent, and “the word ‘pertinent’ is read as synonymous with ‘relevant.'” Clemons, 16 M.J. at 47 (quoting United States v. Angelini, 678 F.2d 380, 381 (1st Cir. 1982)). See also Piatt, 17 M.J. at 445-446; Wilson, 28 M.J. at 49 n.1.

In other words, the general military character of an accused is still as admissible as it ever was for every offense except those specifically enumerated in the NDAA: rape and sexual assault generally (Article 120), stalking (Article 120a), rape and sexual assault of a child (Article 120b), other sexual misconduct (Article 120c), larceny and wrongful appropriation (Article 121), robbery (Article 122), forgery (Article 123), making, drawing, or uttering check, draft, or order without sufficient funds (Article 123a), forcible sodomy; bestiality (Article 125), arson (Article 126), extortion (Article 127), burglary (Article 129), housebreaking (Article 130), perjury (Article 131), frauds against the United States (Article 132), and attempts or conspiracies to commit these offenses (Articles 80 and 81).

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Our #2 story is really a continuation of our #1 story last year, and the media and congressional obsession with military sexual assault cases.  This year we saw continued attempts at tinkering with the military justice system to address issues, both perceived and real, with sexual assault in the military.  See here (debate on earlier Sen. McCaskill and Sen. Gillibrand bills), here (Sen. Gillibrand’s recent push to remove commander authority over certain offenses, including sexual assault), and here (changes in MilJus in the FY15 NDAA).

In related news, the Report of the Response Systems to Adult Sexual Assault Crimes Panel was released to Congress on June 27, 2014.  The report recommended modest changes to the MilJus and military training, but also contained a strong dissent recommending that “[c]ourt-martial convening authorities . . . should no longer control the decision to prosecute sexual assault cases in the military justice system.”

And recently, initial results of the RAND study of military sexual assault (here) had mixed results as they probably more accurately estimated potential sexual assaults in the military–but that of course meant that the data showed more official reports of sexual assault but a “27% decrease” (S&S reports here and here) in the estimated number of service members that were subject to unwanted sexual contact.  And while more official reports is one of the goals of this recent focus on sexual assault in the military, the seeming focus in the media and on the Hill is a numbers game that has very little to do with the real issue of preventing and prosecuting sexual assault, see our prior discourse on this subject here and here (to link a few).

But the actual cases also made headlines again this year.  Some of the sexual assault cases in the headlines came, yet again, from the Academies, including a high profile acquittal in Annapolis (here and here) and an investigation of student athletes in Colorado Springs (here).  And, again this year, commanders made headlines for handling–though mainly alleged mishandling (here and here (USAFA cases))–of sexual assault cases.  And judge advocate leadership on this issue even grabbed headlines, here, when a top sex crimes trial counsel was reprimanded after allegations that he “kissed and groped a female officer while attending a conference on sexual assault prevention.” But the biggest case was, obviously, the conclusion of the Brigadier General Jeffrey Sinclair case in March, here.  That case showed just how politicized the military justice system and the issue of sexual assault had become when the defense in the case successfully argued, and ultimately obtained a very favorable plea agreement and sentence as a result, that political influence had improperly swayed the convening authority to deny a plea agreement requested by the General, coverage here and here.

The current language of Article 31(b), UCMJ, 10 U.S.C. § 831(b), is unchanged from the original text enacted in 1950:

(b) No person subject to this chapter may interrogate, or request any statement from, an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by court-martial.

This provision not only predates the Supreme Court’s requirement for a similar warning in civilian contexts in Miranda v. Arizona, 384 U.S. 436 (1966), but its existence was cited by Chief Justice Warren as a fact supporting the Court’s decision in that case. 384 U.S. at 489.

Article 31(b) is #3 in our list of the Top Ten Military Justice Stories of 2014 because of two cases from the past year that put a new gloss on this 64 year old provision.

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Happy 2015 to all our CAAFlog readers out there! Like our number five story, the number four story on our list is also related to stories that made the top ten in previous years. In 2012, the “Heritage Brief” was part of the number one story and a PME for summer intern law students by a military judge at MCRD Parris Island was part of the number eight story. This year we saw the epilogues to those stories.

The content and events related to the Commandant of the Marine Corps’s Heritage Brief are well known to readers of this blog, so I won’t re-hash all of it. However, this year we saw decisions from the appellate courts in cases that played an important early role in the litigation of the issue. In late January of this year, the NMCCA held in United States v. Easterly (discussed here and here) that a military judge erred when he failed to find that the defense had met the low threshold for a showing of UCI. However, the NMCCA went on to hold that, assuming without deciding the facts presented by the defense constituted actual or apparent UCI, there was no evidence that UCI actually affected the court-martial. Therefore, the court affirmed the findings and sentence. CAAF subsequently declined further review in May.

Next up was the case of United States v. JilesJiles was notable early on in the Heritage Brief UCI litigation, because it was the case in which the then-Chief Judge of the Navy-Marine Corps Trial Judiciary, Col Daniel J. Dougherty, USMC, ordered the Commandant of the Marine Corps to respond to interrogatories about the Heritage brief. Jiles ultimately ended up pleading guilty pursuant to a pre-trial agreement, and the NMCCA found no evidence that UCI, if it existed, played a part in his court-martial.

This brings us to the case of United States v. Howell (discussed here), which forms a bit of intersection between the Heritage Brief cases and the PME by the military judge at MCRD Parris Island. In Howell, the NMCCA found that the military judge, who gave the PME to the “summer-funners” in which a number of questionable remarks were made, erred when he denied a defense UCI motion as well as when he denied defense challenges to certain panel members at trial, again based on UCI.

The NMCCA noted that the PME, which was given while this case was under a court-ordered stay due to a pending motion on UCI, specifically “highlighted Congress’s mistrust of the Marine Corps legal system and desire for more convictions.” Following the notorious PME and this judge’s departure from the bench, Col Dougherty took over mid-trial and allowed reconsideration of all the previous rulings in the case related to UCI. He found that the defense had shifted the burden to the government, but ultimately found that UCI had not affected the proceedings thus far and the previous military judge’s use of the liberal grant mandate had cured any taint of UCI. The NMCCA disagreed and found that because there no action taken to address the erroneous denial of defense challenges to panel members, the taint of apparent UCI had not been removed. The NMCCA vacated the findings and sentence and ordered a new trial. However, the NMCCA still did not go so far as to hold that the Heritage Brief constituted actual UCI.

This brings us full circle to the case of United States v. Kish, where the ill-fated PME itself was the basis for an appellate challenge. In Kish (discussed here), the NMCCA found that the military judge’s conduct during trial, including interjecting himself into the examination of witnesses, combined with his post-trial PME to law student interns created an appearance of bias. However, the NMCCA stopped short of saying that the military judge was actually biased against the accused. Rather, the court found that his comments reflected his view of the attitude needed to succeed as a trial counsel and not his own personal views of the accused or the process. I voiced my own disappointment in this post that the NMCCA did not take the opportunity to condemn this viewpoint of what makes a “successful” trial counsel.

It seems unlikely at this point that an appellate court will find that the Heritage Brief constituted unlawful command influence, and with a new Commandant in charge, that issue becomes more attenuated every day for cases that are still pending trial. For cases that are still in the pipeline for review, the NMCCA will almost certainly continue to use the approach of evaluating whether there was any impact on the proceedings from apparent UCI. While this approach is consistent with the case law, it unfortunately does little to deter future incidents like the Heritage Brief.

The NMCCA is also sifting through the remaining cases affected by the Parris Island PME. Again, the court is taking a case by case approach and in some cases denies relief where the facts do not indicate there was an appearance of bias. In other cases though, the court has granted relief where there is a reasonable argument the PME created an appearance of bias (see here and very recently here). Here’s to hoping that by this time next year both of these stories are no longer in our top ten and have become part of the annals of military justice cautionary tales.

The number five story on our list is really a combination of two issues that received a lot of discussion on the blog. The first story is related to a our number nine story from last year, and that was the issue  of the appointment of Appellate Military Judge Lawrence Soybel to the AFCCA. This time last year, CAAF had just taken a little case known as United States v. Janssen and set it for expedited briefing, with the sole granted issue being:

Whether the civilian judge on Appellant’s Air Force Court of Criminal Appeals panel was properly appointed. See U.S. Const. Article II, Section 2, Clause 2; 10 U.S.C. § 113 (2012); 5 U.S.C. § 3101 (2012).

In April, CAAF answered that question in the negative. As a refresher, Judge Soybel is a civilian litigator for the Air Force and a retired Air Force Judge Advocate. He was initially appointed to the AFCCA by Air Force TJAG to help with the growing backlog of cases at the court. Several months later, sensing there might be an issue with his appointment to the court, the AFCCA recalled the cases he had worked on and Judge Soybel was reappointed to the same position by the Secretary of Defense. He then promptly went back to work on his cases, including the Janssen case. Judge Soybel had been on the panel that decided Janssen previously, while he was serving under TJAG appointment, and was back before the AFCCA for reconsideration following Judge Soybel’s reappointment.

Following the reconsideration, Janssen raised the issue of whether a properly constituted panel had decided his case. CAAF granted the above-cited issue. The Government got off to a rocky start in Janssen, when CAAF essentially rejected the first Government brief on the granted issue as non-responsive (see here and here). Things continued to go downhill for the Government, when CAAF held that the Secretary of Defense did not have statutory authority to appoint inferior officers generally or specifically to appoint appellate military judges. Thus, absent Congressional action, the only person who could have appointed Judge Soybel to the AFCCA was the President, with the advice and consent of the Senate. Since that did not happen, his appointment was invalid. CAAF remanded Janssen to the AFCCA, and in effect over 30 other trailers as well, for consideration by a properly constituted panel.

As many have observed, it’s hard to imagine that this appointment would have been made without dotting every “i” and crossing every “t.” As a retiree, Judge Soybel could have been recalled to active duty and then TJAG would have had authority to appoint him. This certainly seems like it would have been the most expeditious route. Instead, the appointment of Judge Soybel, which was meant to alleviate the backlog issue, seems to have created even more work for the AFCCA as it had to reconsider the cases he sat on multiple times.

The second major issue this year involving Air Force appellate practice was an appearance of bias in Air Force TJAG certifications. This issue was first raised by Zack in this post from April and was discussed further here. In these posts, Zack analyzed the cases TJAG had certified to CAAF thus far in the year pursuant to TJAG’s authority in Art. 67, UCMJ. Looking at those cases, there appeared to be a strong bias in favor of certifying cases where the AFCCA decided cases adversely to the Government. Further, a number of these cases did not seem to really warrant certification in the first place. This notion seems to be supported by CAAF’s summary affirmance of them.

Additionally, Zack discussed several cases that had not been certified by TJAG, but which he believed presented important legal questions. However, all these cases had been decided adversely to the appellant/accused by the AFCCA. Chief among the non-certified cases was Janssen, which certainly warranted certification if for no other reason than to try to get the go ahead from CAAF and not dig a deeper hole for AFCCA.

This topic frequently generated some interesting discussion, with a particular emphasis on whether a “pro-prosecution” certification pattern by TJAG was really inappropriate. After all, in some cases there may be compelling legal and/or policy reason why TJAG does not want certain rulings that are adverse to the prosecution function to stand. The mechanism to challenge them is to certify them to CAAF. However, where cases start to get certified that don’t present important legal questions and cases that do present important legal questions, like Janssen, seem to get passed, one might argue things are getting unbalanced.   We will certainly be watching to see how these trends continue to develop in 2015.

Our #6 top story of 2014 again involves a military judge ruling against the government after getting frustrated and the government appealing. Vargas was a spousal assault special court-martial. Zach has previously discussed the case here and here. The case was delayed and continued multiple times. The last several continuances were based on the government’s request to accommodate witness availability. Several of those witnesses were government employees. The government last moved on 16 October 2013 to again continue the trial so all its witnesses could appear. The military judge denied the continuance and maintained the trial date of 22 October 2013.

The morning of trial, issues came up involving the government’s use of exhibits and a 911 call during its opening statement. The defense objected to the use of non-admitted evidence and the military judge sustained the objection. The government then asked for another continuance to allow it to present the witness necessary to lay the foundation for the 911 call. The military judge refused. The court-martial proceeded with opening statements and the government called four witnesses in its case-in-chief.

The witnesses must have been short ones because the government only started calling witnesses after lunch and by 1411, the four witnesses were done. The government then announced its remaining witnesses would not be available until the next morning.

The military judge was not accommodating. Especially as two of the three planned witnesses were local government employees. The military judge denied the continuance request – essentially just for a few hours assuming the case would break for the evening.

The government asked the military judge to reconsider and the military judge refused. The government announced an intention to appeal. The military judge pressed on. In front of the members the military judge asked the government whether it had any additional evidence. The government responded, “we don’t have any additional evidence at this time . . . .” The military judge asked if the government was resting the government refused to rest. The military judge then rested the government’s case for them.

The next day the military judge reconsidered her ruling and then affirmed her earlier decision.
The government appealed under Article 62, UCMJ. The Navy-Marine Corps Court of Criminal Appeals found jurisdiction and held the military judge’s ruling were an abuse of discretion. Here.

Next stop CAAF. Here. And CAAF continued a theme for the year – upholding the military judge’s decision and using strong language to characterize the government’s actions. Judge Erdmann laid the blame for the need for another continuance on the “government’s own actions” and referred to the government’s “remarkably casual approach to witness production.” Even referring to any limitations on the government’s ability to present evidence as “self-inflicted.”

CAAF addressed the central legal question of whether the combination of the military judge’s denial of the short continuance and resting of the government’s case qualified under Article 62 as “excluding evidence.” If it did, NMCCA had jurisdiction. And if it didn’t, NMCCA did not. Based on the way the government had put itself in a box, CAAF ruled that the military judge’s decision did not exclude evidence. The military judge did not tell the government it could not present a witness or an exhibit, but rather simply told the government it didn’t have any more time to present that evidence. Accordingly, the military judge’s ruling was not “excluding evidence” but was rather an exercise of the military judge’s responsibility to manage the case. So CAAF reversed NMCCA and sent the case back down.

Chief Judge Baker dissented, arguing that the issue was jurisdiction, not a referendum on the government’s actions. He viewed the government’s action as relevant as to whether the military judge abused her discretion in denying the continuance, but not relevant for the narrow jurisdictional question. He took the straightforward approach that the military judge’s order resting the government’s case had the effect of “excluding evidence.”

The jurisdictional parameters of government appeals under Article 62, UCMJ are important and that alone may rate Vargas in our top ten. But I’m a sucker for the stories as much as the arcane legal principles. And love the underlying lessons found in every case. In this one, there are some very basic lessons every trial attorney needs to know or be reminded of. The government knew the case was starting on 22 October 2013. Why not try to pre-admit the 911 call so that the question of using it in the opening was resolved up front? Why not have all the witnesses standing by – at least the local government employees? (One was a NCIS Special Agent returning from Afghanistan, but what about the local ones?). Is it a pain to make witnesses sit around? Yes. Is it something you should try like heck to avoid? Of course. Is it worth the pain to avoid the military judge from resting your case. It is.

Now, I don’t want to come across as if I am judging government counsel here. As those that know me, I have made more and more serious mistakes in dozens of courts-martial. My point rather is to learn from each one. And we should all take Vargas as another reminder of basic trial preparation. No trial counsel should view Article 62 as a way out. The case is won or lost for the government before the military judge.

Of the six service members on the military’s death row (Gray, Loving, Akbar, Witt, Hennis, and Hasan), Senior Airman Andrew Witt has the fourth oldest sentence. In 2005 a general court-martial composed of twelve officer members convicted Witt of the premeditated murder of a fellow Airman and his wife, and of the attempted murder of another Airman, and sentenced him to death. About 18 months later the prosecution team published a detailed first-person account of the trial proceedings in the Air Force JAG Corps magazine, The Reporter (available here).

In 2013 Witt’s death sentence was set aside by the Air Force Court of Criminal Appeals sitting en banc (discussed here). The CCA unanimously concluded that Witt’s trial defense team was deficient in failing to investigate three areas relevant for the sentencing portion of the court-martial: Behavioral changes in Witt after a motorcycle accident that occurred four months before the murders, the mental health history of Witt’s mother, and expressions of remorse by Witt that were observed by a deputy sheriff.

But the court split 3-2 on the question of prejudice, narrowly finding that “had the members been confronted with this additional mitigating evidence, there is a reasonable likelihood that at least one member would have struck a different balance between the aggravating and mitigating factors and would have returned with a different sentence.” 72 M.J. at 766. The CCA remanded for a sentence rehearing where Witt could have received another death sentence, a sentence of confinement for life without eligibility for parole, or the mandatory minimum sentence of confinement for life with eligibility for parole.

But then the Government sought reconsideration by the CCA, and in a dramatic reversal the court reinstated Witt’s death sentence in a second en banc decision issued in 2014. United States v. Witt, 73 M.J. 738 (A.F. Ct. Crim. App. Jun. 30, 2014) (discussed here).

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The eighth story in our top ten countdown was initially broken by our own Phil Cave, who can now add breaking news reporter to his list of many other talents. On May 2, Phil reported that Marine Corps CID agent had tossed the office spaces of the Marine Corps Defense Services Organization at Camp Pendleton in search of a client’s cell phone that allegedly contained evidence for a pending case. While initial details of the search were unclear, the story was eventually picked up by mainstream media sources and over the course of the next two or three months we learned more details about what had transpired (see here, here, here and here).

As it turned out, a Marine at Camp Pendleton was being prosecuted for alleged drug offenses, sexual assault, kidnapping, and affiliation with an outlaw motorcycle gang. His defense counsel had submitted a motion to have her client removed from the brig and included with it images of supposedly exculpatory text messages between her client and an alleged victim in the case. These text messages were obtained from the client’s cell phone, which was in the defense counsel’s possession. The government had apparently asked the defense counsel repeatedly to turn over the phone, and she had declined on attorney-client privilege grounds. Rather than going to the court to sort it out, the government went with the nuclear option of seeking and obtaining a search authorization to seize the cell phone from the defense work spaces. Hilarity did not ensue.

From reports of the search, it appears that four armed CID agents, escorted by trial counsel, showed up in defense spaces at Camp Pendleton, blocked defense counsel from leaving and proceeded to rifle through their offices in search of the cell phone. It also appears that the cell phone was actually located fairly quickly, within twenty minutes, but the search continued for over two hours and involved the offices of defense counsel with no connection to the case. The ostensible reason for the continued violation of defense spaces was that the defense counsel would not confirm that the found cell phone belonged to the client in question.

The fall out from this search included at least one military judge ruling that the search, instigated by trial counsel, constituted apparent unlawful command influence. The military judge ordered the supervisory trial counsel off the case and several others cases and placed other restrictions on him. This ruling resulted in that supervisory trial counsel ultimately being reassigned to a different billet. Additionally, there were multiple motions for relief in unconnected cases, due to CID agents going through defense case files, although an internal investigation concluded that no defense information was compromised. However, that internal determination was likely cold comfort to any accused with a case from that office, or the defense counsel from that office trying to build trust with their clients.

While this incident succeeded in making the Marine Corps legal community look like amateur hour at a time when military justice was already under heightened scrutiny, it was not a total loss, at least as a learning point. Judging from the extensive comment sections on the posts about these articles, this incident gave those of us in the cheap seats an opportunity to review and think about the obligations of a defense counsel with regard to physical evidence, and particularly the ethical and legal perils of taking possession of physical evidence from clients. Additionally, this case was somewhat of an atypical one for a search of a defense attorney’s office, since it does not appear that the defense counsel in question had any connection to the alleged misconduct. Thus, it also gave us the opportunity to think about and discuss when and how it is appropriate for the government to take the extreme measure of searching defense counsel offices.

Finally, while this is somewhat reading between the lines, this situation seems to be a case study in what happens when the prosecution shop and defense shop can’t get along. It’s hard to believe that this debacle could not have been avoided had there been a good working relationship between the two sides. This case is a good reminder that we as attorneys have a duty to represent whichever side we are assigned to zealously, but not at the cost of professionalism and collegiality. Situations like this one invariably seem to result from an atmosphere where the opposing parties have lost the ability to disagree about an issue without ascribing false and improper motives to the other side. This job is a difficult one already, and that type of attitude only makes it more difficult. That reminder alone is reason enough for this story to make the top ten list for 2014.

Article 12 of the UCMJ states:

No member of the armed forces may be placed in confinement in immediate association with enemy prisoners or other foreign nationals not members of the armed forces.

The foreign nationals provision of this Article was at issue in 2014, with a pair of certified Air Force cases that asked CAAF to determine whether this provision applies to service members confined in federal facilities within the United States. Such confinement occurs under a number of pre- and post-trial scenarios, leading to situations where service members are likely to be confined with foreign nationals. The problem seemed most acute in the Air Force, particularly after the Air Force CCA held that Article 12 applies “everyplace.” United States v. Wilson, 73 M.J. 529, 533 (A.F. Ct. Crim. App. Jan. 30, 2014). Hoping to limit the Article’s application to only confinement facilities located outside the United States, the Air Force JAG certified Wilson and another case to CAAF.

But writing for a four-judge majority in both cases, Judge Stucky affirmed the Air Force CCA, holding that for Article 12 “there is no geographic limitation by its terms, so this Court will not read any such limitation into the plain language of the statute.” United States v. McPherson, 73 M.J. 393, 395 (C.A.A.F. Aug. 21, 2014) (CAAFlog case page). See also United States v. Wilson, 73 M.J. 404, 406 (C.A.A.F. Aug. 21, 2014) (CAAFlog case page).

Chief Judge Baker dissented in both cases, with a comprehensive analysis of the legislative history of Article 12 that offered a pragmatic conclusion that the original intent of the drafters of the UCMJ was “on the one hand, to prevent the confinement of servicemembers in immediate association with enemy combatants and foreign nationals in military detention, and, on the other hand, to permit the transfer of servicemembers to federal prisons in order to facilitate their rehabilitation and promote discipline in military confinement facilities.” Wilson, 73 M.J. at 398 (Baker, C.J., dissenting).

CAAF’s resolution of McPherson and Wilson also affirmed the requirement that service members exhaust administrative remedies before seeking judicial relief for violations of Article 12. McPherson, 73 M.J. at 397. See Wilson, 73 M.J. at 406 n.2. Such remedies include raising the issue with confinement officials, complaining to the chain of command, and filing a complaint of wrongs under Article 138. See McPherson, 73 M.J. at 398.

The application of Article 12 to domestic facilities poses a significant problem for the Government, which has consolidated many local military confinement facilities into fewer regional ones, and will almost certainly continue this trend. The use of civilian facilities provides a crucial stopgap in the military’s corrections system. Unfortunately, the application of Article 12 to these civilian facilities produces undesirable results, such as holding military prisoners in solitary confinement in order to avoid any commingling with foreign nationals. See McPherson, 73 M.J. at 396. CAAF didn’t provide a clear answer for how the Government can avoid this conundrum.

CAAF’s holding that Article 12 applies without geographical limitation is our #9 Military Justice Story of 2014. But it’s likely that the court will revisit the issue of the Article’s application in the near future.

Like many of our readers, one of the things I love about criminal law and military justice are the stories. Each case, each client, and each courtroom experience is a story. But some stories are better than others. And some reveal or remind of us of fundamental truths.

This year’s Number 10 story is the saga of United States v. Browser, 73 M.J. 889 (A.F.C.C.A. 2014). As discussed here and here, the military judge dismissed the spousal-rape case with prejudice after the government refused to turn over witness-interview notes for an in camera review following claims of Brady violations.

The Air Force Court of Criminal Appeal’s opinion (here) lays out the facts well, as does Zack’s previous post (here). So I’ll only give a short recap. Chief Master Sergeant Bowser was accused of raping his wife three times (1994, twice in 2008) along with forcible sodomy and battery. The case was a classic he-she said in the sense that the government’s principle evidence at trial was the testimony of the alleged victim. Along the way, there was a pretext phone call to the accused from the alleged victim, but it was suppressed.

After fights over late disclosures, the government made a final disclosure of two senior enlisted witnesses’ statements that were inconsistent with statements previously made by the alleged victim. In the process of turning them over, the trial counsel opined that the statements were provided in “an abundance of caution” and that the trial counsel was “erring on the side of over disclosure.”

In the following arguments, the government offered to turn over all its notes from interviews for an in camera review. 73 M.J. at 893. But then changed position and refused. The military judge ordered the government to turn over the notes for an in camera review and the government continued to refuse. Ultimately, the military judge dismissed the charges and specifications with prejudice and the government appealed under Article 62, UCMJ.

The Air Force Court of Criminal Appeals denied the government appeal in a strongly worded opinion. The Court found the military judge’s order was lawful and appropriate and that the government had no acceptable reason to refuse to comply. As a result, the Court found the military judge’s remedy of dismissal with prejudice was within his discretion.

One of the many wonderful aspects of military service as a judge advocate is the opportunity to work and experience criminal law from both sides of the courtroom. Of course, I can only speak of myself, but my service as a trial counsel made me a better defense counsel and my service as a defense counsel made me a better trial counsel. Working on both sides provides perspectives that most attorneys lack. Many of us have been to civilian training events with career prosecutors and career defense attorneys. I was always struck by how many career prosecutors and defense attorneys seem to have the default position that the other side is always lying, cheating, or stealing. But, of course, that’s not true.

Few of us know all the details and background of this case. The AFCCA opinion though tells a twisted saga. After a favorable discovery ruling on the motion to suppress the pretext phone call, the defense elected trial by military judge alone. The defense then announced it was withdrawing its objection to the pretext call statements. Presumably, the statements cut both ways and the defense decided to let the military judge consider them. Many of us have changed our litigation strategy based on the forum selected. The government responded by moving to recuse the military judge because he had reviewed the pretext phone call. Later, following more Brady discovery fights, the defense counsel moved to disqualify the trial counsel. The best adjectives to describe this court-martial escape me.

All of which brings me back to the idea of fundamental lessons. Why would the government refuse an in camera review? And even more perplexing is why the government continued to maintain that position on appeal? Why didn’t the trial counsel give over anything close to Brady much earlier in the process? And what was gained by taking such hard line positions?

Regardless of the rationales of the government in this case, the saga highlights for all of us, new and old the importance of not losing sight of the goal. For the government, that is justice. The government wears the white hat. And fighting for the sake of fighting is rarely the best or most effective strategy. Whether I have misread the specific facts here or not, Bowser can still remind us of those lessons. And that is why it is #10 in our list of the Top Ten Military Justice Stories of 2014.

Next week we will continue an annual tradition for the seventh year, counting down the Top Ten Military Justice Stories of 2014. But before we do that, let’s revisit last year’s list.

#10 was Article 10, the speedy trial provision of the UCMJ. Writing for a sharply divided court, Judge Erdmann denied relief despite finding “several periods of unexplained or unjustified delay” in United States v. Wilson, 72 M.J. 347, 355 (C.A.A.F. 2013) (CAAFlog case page). Judge Erdmann’s majority opinion acknowledged that CAAF has “repeatedly stressed that Article 10 is a more stringent standard than the Sixth Amendment.” 72 M.J. at 352 n.2. But that proposition comes from United States v. Burton, 44 C.M.R. 166, 171 (C.M.A. 1971), and United States v. McCallister, 27 M.J. 138, 141 (C.M.A. 1988), and just like the disco music and big hair of the eras of Burton and McCallister, Article 10 is dead.

#9 was all about the Air Force Court of Criminal Appeals. We noticed things were getting bad at the Air Force court back in 2012, when the delay in resolving cases caused appellants to seek relief from CAAF and the news media to take an interest. “Going for guano crazy,” we thought, and the court made our list. But things got even worse in 2014, with CAAF’s invalidation of the appointment of a civilian official to the AFCCA by the Secretary of Defense. That appointment was ostensibly made to help clear the backlog of cases plaguing the Air Force court, but CAAF’s unanimous opinion in United States v. Janssen, 73 M.J. 221 (C.A.A.F. 2014) (CAAFlog case page), authored by Judge Stucky (himself a retired Air Force Colonel who served on the AFCCA), was just a touch ironic.

#8 was the confirmation of the appointment of Judge Ohlson to CAAF. After a long confirmation delay attributable to the politics of a divided government, Judge Ohlson become CAAF’s newest judge in 2013. Since then he’s participated in 25 cases, joining the majority in 22 of them. But it’s also clear that Judge Ohlson (formerly a career attorney in the Department of Justice) is not afraid to go it alone, as he confronted the other four judges with a strongly-worded dissent in United States v. Frey, writing that “the impropriety of [the trial counsel’s sentencing] argument is nothing short of breathtaking.” 73 M.J. 245, 253 (C.A.A.F. 2014) (CAAFlog case page).

#7 considered claims of unlawful command influence (UCI) by the civilian leadership of the armed forces. The President talked tough about military sexual assault prosecutions in an early May 2013 press conference, and a litigation bonanza ensued. Judges ruled, the Government pursued a number of interlocutory appeals, and the Secretary of Defense tried to clear the air. Then a majority of CAAF sidestepped the fundamental question of whether a civilian official can even commit UCI, with its decision in United States v. Hutchins, 72 M.J. 294 (C.A.A.F. 2013) (CAAFlog case page). Sadly, odds are good that CAAF will face this thorny issue again soon.

#6 focused on a specific allegation of UCI: that General Amos unlawfully influenced subordinates tasked with addressing a highly publicized video of Marines urinating on corpses in Afghanistan. The story had all the drama of a soap opera. But while the Commandant of the Marine Corps focused on the Marines associated with the video, many observers focused on the Commandant. Even after General Amos’ retirement in 2014, critics continue to question his qualifications and conduct, and defense counsel continue to assert that his actions unlawfully influenced a wide range of disciplinary processes.

#5 was the Wilkerson court-martial and its effects. Air Force Lieutenant General Craig Franklin exercised his authority under Article 60(c) to set aside the sexual assault conviction of Air Force Lieutenant Colonel James Wilkerson in 2013, and it was a military justice shot heard round the world. A frenzy of criticism erupted, and Congress ended the year by strictly curbing a convening authority’s previously unfettered ability to reduce the findings or sentence of a court-martial.

#4 was the Salyer case. When a prosecutor facing a mistrial suggests that the judge’s personal life might be a reason to disqualify him from the case, and then a supervisory prosecutor digs through the judge’s personnel record looking for material to use for that purpose, and then the officer-in-charge, also an attorney, participates in the effort to remove the judge, causing the judge to recuse himself, and the accused is convicted of possession of child pornography, but 21 months later an appellate court dismisses the case with prejudice because of the actions of the prosecutors and the officer-in-charge, that’s enough to qualify for a spot on our top ten list. But the Salyer case had even more.

#3 was the Manning case. The prosecution of Army Private First Class Bradley (a.k.a. Chelsea) Manning for leaking classified material was a long drama. CAAF almost got involved in 2013, but the court narrowly decided that it did not have jurisdiction to entertain a petition for greater public access to the trial proceedings in Center for Constitutional Rights, et al. v. United States and Colonel Lind, 72 M.J. 126 (C.A.A.F. 2013) (CAAFlog case page). Then, in a summertime trial, Manning was convicted of various offenses, some in accordance with pleas of guilty, and sentenced to confinement for 35 years and a dishonorable discharge.

#2 was the adjudged death sentence for Army Major Nidal Hasan, the Fort Hood shooter. Hasan became the sixth member of the military’s death row after firing his attorneys, representing himself, conceding that he was the shooter in his opening statement, and resting his case without presenting any evidence. A panel of thirteen members convicted Hasan of 13 specifications of premeditated murder and 32 specifications of attempted murder, and then deliberated for less than two hours before sentencing him to death.

Finally, the #1 Military Justice Story of 2013 was the changes to the UCMJ enacted as part of the National Defense Authorization Act for Fiscal Year 2014. It’s hard to say exactly when the issue of sexual assault became a crisis in the military, but 2013 was the year that this long-simmering issue boiled over. Congress rushed to pass a NDAA in the final weeks of 2013, and the President signed it into law exactly one year ago today. The legislation contained numerous military justice provisions, including some new Articles, many changes to old ones, and a significant number of obvious drafting errors. As the sun rose on 2014, we took stock of those new provisions and wondered what the year ahead had in store for us.

We’ll answer that question on Monday, when we count down the Top Ten Military Justice Stories of 2014.

It began a year ago, in January 2013, when Representative Jackie Speier (D-CA) introduced the “Protect Our Military Trainees Act” that, according to her press release, was “in response to the widespread sexual abuse by Air Force training instructors at a San Antonio Base,” and would “protect trainees from assault and sexual advances by instructors.”

Never mind that sexual harassment in the military is prohibited by innumerable regulations, or that coerced sexual activity “through the use or abuse of military position, rank, or authority” has met the statutory definition of a sexual assault since October 2007, or even that this definition was expanded in 2012 to include “a[ny] communication or action that is of sufficient consequence to cause a reasonable fear . . . [of] being subjected to the wrongful action contemplated by the communication or action.” Congress was getting curious about sexual assault in the military, and it didn’t like what it saw.

Actually, it really began a year before the Congresswoman’s proposal, when we encountered the “uninformed, dishonest, or both” propaganda film “The Invisible War,” and the politicization of the military’s response to sexual assaults became . And these days, “you never want a serious crisis to go to waste.”

So there was Congress, geared up to address the military sexual assault crisis, when the Wilkerson case (our #5 story of this year) threw gasoline onto the bonfire. An explosion of legislative proposals soon followed, with Representative Speier and Senator McCaskill each introducing bills to limit a commander’s post-trial powers, and the Senate Armed Services Committee conducting hearings on March 13 and June 4.

The House Armed Services Committee was also concerned, with leaders writing a letter in March to the recently-appointed Secretary of Defense, Chuck Hagel, on the topic. A veteran of Vietnam and a two-term Republican U.S. Senator from Nebraska, Secretary Hagel replied in April with his own proposal to limit the Article 60 authority of commanders, including “eliminating the discretion for a convening authority to change the findings of a court-martial, except for certain minor offenses that would not ordinarily warrant trial by court-martial.”

Senator Hagel’s April proposal was prophetic, but before the prophecy would be fulfilled, the Naval Academy checked in. In June we first noted a sexual assault allegation involving three male members of the Academy’s football team, an intoxicated female midshipman, and an off-campus house party in 2012. The allegation led to an Article 32 investigation that more closely resembled a three-ring-circus than a quasi-judicial proceeding. Press reports say that the midshipman was grilled for over 30 hours by defense counsel, with absurd questions such as “how wide she opened her mouth during oral sex and whether she had apologized to another midshipman with whom she had intercourse ‘for being a ho.'” Soon after, both the House and the Senate put Article 32 in their sights with proposals to limit the scope of the investigation and to change it from a full-blown investigation to a mere preliminary hearing.

So, about that prophecy. On December 26, 2013, it came true.

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If we based our Top 10 Military Justice Stories of 2013 on what our readers viewed, what would the list look like?  That thought occurred to me as we were haggling and disagreeing over the contributors Top 10 list.  So I thought I’d share with you, the  Top 10 Posts of 2013 (as ranked by number of readers that clicked or navigated to the post).

10.  This post on the Wilkerson case victim’s interview on the Today Show starts us off as the 10th most read post of 2013.

9.   And more Wilkerson case coverage comes in at number 9.

8.   And even more Wilkerson coverage makes the top 10, as Senators get involved.

7.   And in the middle of the Wilkerson firestorm, the Air Force SAPR office head’s arrest on alleged sexual assault charges made this post #7.

6.   And this post on media coverage of the DoD sexual assault report numbers rounds out the bottom five of our most read stories of 2013.

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Our #2 story of the year was the court-martial of Major Hasan, the Fort Hood shooter. We ended last year with CAAF granting a petition for extraordinary relief and removing the military judge and ordering a new one be assigned. Col Tara Osburn, USA, was then assigned. Major Hasan’s court-martial was last year’s number two story of 2012.

For all the tragedy of the victims and court-room drama leading up to the trial, the trial itself was relatively uneventful. The defense rested without putting on any evidence. Major Hasan acknowledged he was the shooter at the beginning of the trial. He was convicted of 13 specifications of premeditated murder and 32 specifications of attempted murder. He was sentenced to death after less than two hours of deliberations.

The trial was most notable for Major Hasan’s decision to represent himself. After firing his lawyers, the MJ granted his request to represent himself. His counsel, who continued to be available to assist him, described his actions as a “working towards the death penalty” according to the Washington Post.

I once did extensive research, attempting to look at all Article 118(1) & 118(4) cases preferred since 1984 to identify predictors of convening authorities’ decisions to refer cases capitally and on members awarding death as a punishment. We started with the thought that perhaps there were racial trends we could identify. What we found was the unsurprising conclusion that the number one predictor of capital referrals and capital sentences in Article 118(1) cases was multiple victims. That certainly held true in Major Hasan’s case.

Of course, Major Hasan will receive automatic review from the Army Court of Criminal Appeals. As this CNN report points out, the reversal rate for death-penalty cases in the military on direct review is very high. This report cites a 82% reversal. These numbers are since 1984, when President Reagan implemented R.C.M. 1004.

One issue that lurks in the case highlights some of the paternalism that still lingers in the military-justice system. Major Hasan attempted to plead guilty, but his plea was rejected by the MJ. Article 45(b), UCMJ prohibits a guilty plea to a capital offense. In theory, this denied Major Hasan the mitigating effects of a guilty plea. Is it remotely conceivable that ACCA or CAAF will rule Article 45(b), UCMJ unconstitutional and reverse? Probably not, but if they did, it would probably make our top ten list in future years.

Number three this year looks a lot like #3 last year, the PFC Manning case has been a media darling, earning multiple spots on our top ten list. But alas Bradley Manning’s time in the spotlight has run its course. His case finally made its way to court-martial and resulted in a sentence of confinement for 35 years, report here. While his supporters may bring the case back to life when the appellate process starts to drag on, and it will, for now we may have seen the end of 24/7 Manning coverage around the globe. Here’s a recap of this year’s festivities.

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