Top Ten Military Justice Stories of 2018 – #2: The incredible reversal of Senior Chief Barry’s conviction of sexual assault
After Senior Chief (E-8) Barry was convicted of sexual assault in violation of Article 120(b), by a general court-martial composed of a military judge alone, and was sentenced to confinement for three years and a dishonorable discharge, the convening authority – Rear Admiral Patrick Lorge (who later retired) – approved the findings and sentence as adjudged. The Navy-Marine Corps CCA then remanded the case for a new action because Lorge’s Staff Judge Advocate (SJA) erroneously advised Lorge that he had no power to reverse the findings or reduce the sentence.
On remand, Lorge took a closer look at the case, and he developed concerns about the result of the trial. Barry was convicted of sexually assaulting a woman with whom he had an ongoing sexual relationship and under circumstances that raised the defenses of consent and mistake of fact as to consent. Lorge thought about reversing Barry’s conviction, but the SJA advised against it. So Lorge discussed the case with then-Rear Admiral Crawford who at the time was the Deputy Judge Advocate General (DJAG) of the Navy and with whom Lorge had previously served. Crawford later became the actual Judge Advocate General of the Navy (TJAG) and was promoted to Vice Admiral. As Lorge later recalled, Crawford advised him that approving the findings and sentence in Barry’s case was the appropriate course of action.
Ultimately, Lorge did again approve the findings and sentence, but he modified the automatic reduction in rank to retain Barry at E-7. Then – in an unusual move – Lorge added language to his convening authority’s action that questioned the fairness of the trial and the appropriateness of the sentence (though not the sufficiency of the evidence), and that encouraged the Navy-Marine Corps CCA to either remand the case for further proceedings or to disapprove the adjudged punitive discharge (but not to dismiss the charge outright). Lorge, of course, could have done any of those things, but didn’t.
And neither did the CCA. In a lengthy opinion written by then-Chief Judge Palmer, the Navy-Marine Corps CCA rejected numerous assignments of error and affirmed the findings and the sentence. United States v. Barry, No. 201500064 (N.M. Ct. Crim. App. Oct. 31, 2016) (link to slip op.). A few months after that, CAAF summarily affirmed the CCA’s decision. 76 M.J. 269 (C.A.A.F. Apr. 27, 2017).
Sixteen months later, however, CAAF reversed Barry’s conviction and dismissed the charge with prejudice, in United States v. Barry, 78 M.J. 70 (C.A.A.F. Sep. 5, 2018) (CAAFlog case page).
That incredible change of fortune (and the reasoning for it) is the #2 Military Justice Story of 2018.
Top Ten Military Justice Stories of 2018 – #3: CAAF’s clarification of the statute of limitations for rape
Article 43 of the UCMJ – like federal civil law – contains a baseline five-year statute of limitations. Congress added exceptions in 1986, including an exception for “any offense punishable by death.” At that time, the UCMJ allowed death as the maximum punishment for rape of a female (the statute didn’t protect men until 1992).
But there was a catch: the Supreme Court previously held that death is an unconstitutional punishment for the offense of rape of an adult woman, in Coker v. Georgia, 433 U.S. 584, 598 (1977). Presumably Congress knew that. CAAF certainly did, acknowledging in United States v. Hickson, 22 M.J. 146, 154 n.10 (C.M.A. 1986), that “in the absence of aggravating circumstances, [a death sentence] cannot be constitutionally inflicted [for rape of an adult].” Nevertheless, in Willenbring v. Neurauter, 48 M.J. 152, 180 (C.A.A.F. 1998), CAAF held that “rape is an ‘offense punishable by death’ for purposes of exempting it from the 5-year statute of limitations of Article 43(b)(1),” even if the absence of aggravating factors meant that a particular rape could never actually be punished by death. In other words, even though Congress only exempted offenses punishable by death from the five year statute of limitations, CAAF held that the exemption applied to a rape charge that was not actually punishable by death.
That changed in 2018 with CAAF’s decision in United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page). A unanimous CAAF reversed Willenbring and clarified that “where the death penalty could never be imposed for the offense charged, the offense is not punishable by death for purposes of Article 43, UCMJ.” 77 M.J. at 224-225 (emphases in original). That decision is the #3 Military Justice Story of 2018.
A discharge from active duty ends court-martial jurisdiction, though a service member who transfers to the reserves – even the inactive reserves – to fulfill a reserve obligation can be recalled to active duty for prosecution for misconduct that occurred while on active duty. Accordingly, for some people a discharge certificate is like a security blanket (note: I have no affiliation with, and no endorsement is implied by, the link).
But sometimes it’s not clear whether or exactly when a service member was discharged, and court-martial jurisdiction hangs in the balance. That was the case in United States v. Christensen, 78 M.J. 1 (C.A.A.F. Jul. 10, 2018) (CAAFlog case page), when Private Christensen was apparently separated from the Army in April 2013, was charged with a sexual assault and had his discharge certificate invalidated in September 2013, and was involuntarily returned to military control in December 2013. A general court-martial, a conviction of one specification of sexual assault, and a sentence that included confinement for eight years followed.
But CAAF reversed it all, concluding that under the specific facts of the case reason and policy dictate that Christensen was discharged prior to his court-martial and so the tribunal lacked personal jurisdiction to try him. That dramatic reversal is the #4 Military Justice Story of 2018.
Waiver is the intentional relinquishment or abandonment of a known right, extinguishes an error, and was the basis for the #3 Military Justice Story of 2017. The mere failure to raise an issue at trial, however, is generally forfeiture, not waiver. A forfeited error is reviewed for plain error (where the burden is on the appellant to prove error that is both plain and prejudicial). A waived error, however, is typically (though not necessarily) not reviewed at all.
For example, an accused who pleads guilty and waives his right to a trial cannot complain on appeal that he was denied the right to a trial, because he knowingly and voluntarily waived that right when he pleaded guilty. But an accused whose defense counsel merely fails to object to some impropriety by the prosecution generally only forfeits the objection and may raise the issue for the first time on appeal (but faces a higher burden than if there had been an objection at trial that the military judge overruled).
Military precedents, however, do not clearly distinguish between the concepts of waiver and forfeiture. At least, not until recently. Two cases addressing the difference and decided in 2018, and a rules change that took effect on January 1, 2019, provide clear distinctions between waiver and forfeiture. Combined they are the #5 Military Justice Story of 2018.
Top Ten Military Justice Stories of 2018 – #6: CAAF holds that retired members can receive punitive discharges
Last year’s the top story was the exercise of court-martial jurisdiction over retired members of the armed forces. Military retirement isn’t retirement in the ordinary meaning of the term; it’s just a change in status and the UCMJ applies to regular retirees who are entitled to pay. But the exercise (and even the acknowledgement) of such jurisdiction was rare prior to events in 2017 that brought new attention to the fact that military retirees face military prosecution (even for post-retirement misconduct).
One such prosecution was the case of Gunnery Sergeant (E-7) Dinger, USMC (Ret.), who retired after completing 20 years of active enlisted service in the Marine Corps. After his retirement, Dinger lived in Okinawa, Japan, and worked as a military contractor. While there Dinger became a suspect in a child pornography investigation, and a search revealed evidence of possession and production of child pornography. Dinger was arrested, returned to the United States, and indicted under the Military Extraterritorial Jurisdiction Act (MEJA), 18 U.S.C. § 3261.
MEJA, however, generally can’t be used to prosecute a member of the armed forces who is subject to the UCMJ, and Dinger’s retired status put him in that category. So the prosecution moved to dismiss the indictment, and the indictment was dismissed. A court-martial prosecution followed (at which Dinger appeared in civilian clothes), and Dinger agreed to plead guilty in exchange for an eight-year cap on confinement. But the plea deal did not protect Dinger against a punitive discharge, and he received a sentence that included a dishonorable discharge.
Dinger challenged that discharge on appeal but, in 2018, CAAF affirmed the discharge and the Supreme Court rejected Dinger’s petition for review. United States v. Dinger, 77 M.J. 447 (C.A.A.F. Jun. 18, 2018), pet. denied, __ S.Ct. __ (Nov. 13, 2018) (CAAFlog case page).
CAAF’s holding that a retired member may be sentenced to a punitive discharge is the #6 Military Justice Story of 2018.
The #7 Military Justice Story of 2018 is United States v. Robinson (AF), 77 M.J. 303 (C.A.A.F. 2018) (CAAFlog case page). One of two 2018 cases by the same name but with different appellants (this one from the Air Force, the other from the Army), in Robinson (AF) a majority of CAAF limited the reach of the court’s 2017 decision in United States v. Mitchell, 76 M.J. 413 (C.A.A.F. Aug. 30, 2017) (CAAFlog case page), in which CAAF affirmed the suppression of the results of a cell phone search because military investigators pressed Mitchell to decrypt the device after Mitchell requested an attorney.
Mitchell was the #4 Military Justice Story of 2017, in part because of the attention the case received from outside of the military justice system. The Electronic Frontier Foundation, the American Civil Liberties Union, and the ACLU of the District of Columbia all supported Mitchell as amicus curiae. CAAF’s ultimate decision was split – with Chief Judge Stucky writing for a four-judge majority and Judge Ryan dissenting – and it was somewhat constrained by its application of strong language from Mil. R. Evid. 305(c)(2) that prohibits admission of evidence obtained by interrogation after a suspect requests an attorney. But Chief Judge Stucky’s majority opinion was also grounded in broad Constitutional themes, explaining that CAAF was “enforcing the prophylactic Miranda [v. Arizona] right to counsel, and the second layer of prophylaxis established in Edwards [v. Arizona], both of which are constitutionally grounded measures taken to protect the core Fifth Amendment privilege.” 76 M.J. at 419 (marks and citations omitted).
But those prophylactic measures reached their limit in Robinson (AF).
Judge Ohlson wrote for a four-judge majority – with Chief Judge Stucky dissenting – and found no error in military investigators asking Robinson for the passcode to his phone after Robinson informed the investigators that he had an attorney and invoked his right to remain silent. The facts of Robinson are very similar to those of Mitchell, with an exception: in Mitchell the investigators were executing a search authorization (the military substitute for a warrant), but in Robinson the investigators were exploiting Robinson’s consent to a search of the device. Requesting consent to a search is an exception to the no-questioning-after-invocation rule from Edwards, and a majority of CAAF found that exception to be an important distinction:
The facts of Mitchell are distinguishable from Appellant’s case, primarily because Mitchell involved a search authorization of the accused’s cell phone rather than a voluntary consent to search, as here.
77 M.J. at 306 n.4 (citations omitted). Chief Judge Stucky, however, found no meaningful distinction between the facts of Robinson and those of Mitchell (noting that the court’s analysis in Mitchell “focused on whether the accused was in custody and subject to interrogation,” 77 M.J. at 307-308, and Robinson also involved a custodial interrogation).
Robinson is a big limitation on Mitchell, earning it this spot on the Top Ten list.
Top Ten Military Justice Stories of 2018 – #8: Brigadier General Baker wins a writ of habeas corpus and reversal of his contempt finding
In November 2017, Marine Corps Brigadier General John Baker – chief of the Military Commissions Defense Organization – was ordered confined to his quarters for 21 days by Air Force Military Judge Colonel Vance Spath, who found Baker in contempt in connection with the release of three civilian defense counsel from the case of Abd al Rahim al Nashiri (who is accused of orchestrating the 2000 bombing of USS Cole).
The contempt finding was dubious and Baker promptly filed a petition for a writ of habeas corpus in U.S. District Court for the District of Columbia. The day after the petition was filed (and two days after Baker was confined), the convening authority deferred the remainder of the confinement, resulting in Baker’s immediate release. A few weeks later the contempt finding was approved but the punishment (consisting of the confinement and a $1,000 fine) was disapproved outright.
In 2018 General Baker won reversal of the contempt finding entirely. That reversal is the #8 Military Justice Story of 2018.
District Judge Royce C. Lamberth concluded that a military judge detailed to a military commission under the Military Commissions Act (10 U.S.C. Ch. 47A) may not unilaterally punish contempt. Rather, “only a military commission acting through its regularly constituted members is authorized to convict a person of any offense under Chapter 47A,” including contempt. Baker v. Spath, __ F. Supp. 3d __, __, 2018 U.S. Dist. LEXIS 101622, *41 (D.D.C. Jun. 18, 2018) (discussed here). Accordingly:
Judge Spath acted unlawfully when he unilaterally convicted General Baker of criminal contempt and sentenced him for that contempt. He usurped a power that belongs solely to the members of the commission, voting as a body. For that reason, Judge Spath’s contempt findings must be vacated and the Court will grant General Baker’s Petition.
Id. at __, 2018 U.S. Dist. LEXIS 101622, *40-41.
Top Ten Military Justice Stories of 2018 – #9: Victims rights belong to victims (and victims who don’t participate won’t be heard)
Two years ago, Article 6b was the #6 Military Justice Story of 2016. 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. But a significant decision from 2018 puts Article 6b – and the corresponding Rule for Courts-Martial 1001A (renumbered as 1001(c) in the 2019 MCM) – back on our list as the #9 Military Justice Story of 2018.
In United States v. Barker, 77 M.J. 377 (C.A.A.F. May 21, 2018) (CAAFlog case page), CAAF reviewed three victim-impact letters from a child pornography victim that were admitted into evidence under R.C.M. 1001A, which is the President’s implementation of a crime victim’s Article 6b(a)(4)(B) “right to be reasonably heard at . . . [a] sentencing hearing relating to the offense.” Baker pleaded guilty at a general court-martial to wrongful possession of child pornography and the letters were offered by the prosecution during the sentencing phase of the proceeding. The trial counsel proffered that the victim (identified by the initials KF) provided the letters to the FBI years before Barker’s misconduct, but KF did not participate in Barker’s court-martial in any way. The defense vigorously objected to the admission of the letters, but the military judge overruled the objections and admitted them.
That was error, ruled CAAF, because of KF’s non-participation.
Judge Ryan wrote for a functionally-unanimous court (Chief Judge Stucky dissented, but agreed with Judge Ryan’s analysis of R.C.M. 1001A) and explained that:
the rights vindicated by R.C.M. 1001A are personal to the victim in each individual case. Therefore, the introduction of statements under this rule is prohibited without, at a minimum, either the presence or request of the victim, R.C.M. 1001A(a), the special victim’s counsel, id., or the victim’s representative, R.C.M. 1001A(d)–(e).
77 M.J. at 382 (emphasis added). In other words, victim’s who don’t participate won’t be heard. Judge Ryan concluded:
All of the procedures in R.C.M. 1001A contemplate the actual participation of the victim, and the statement being offered by the victim or through her counsel. Moreover, they assume the victim chooses to offer the statement for a particular accused, as they permit only the admission of information on victim impact “directly relating to or arising from the offense of which the accused has been found guilty.” R.C.M. 1001A(b)(2).
In this case, trial counsel appears to have had no contact with KF, KF did not in fact participate in the proceedings, and there is no indication that KF was even aware of Appellant’s trial. Most importantly, the statements were not offered by either KF or her advocate as R.C.M. 1001A requires. Thus, the military judge abused his discretion in admitting these statements under R.C.M. 1001A.
77 M.J. at 383.
The decision provided no benefit for Barker, however. Barker faced a maximum authorized punishment of confinement for 20 years, had a pretrial agreement that limited his confinement to four years, and was actually sentenced to a comparatively light two years and six months. Considering that along with the “particularly horrific” nature of the images at issue, 77 M.J. at 384, CAAF found the error harmless and affirmed the findings and sentence.
Top Ten Military Justice Stories of 2018 – #10: SecDef says that “it is a commander’s duty to use [the military justice system]”
Equating “vigilant operational security, protection of electronic equipment, and responsible social media activity,” Secretary Mattis quoted George Washington’s observation that “discipline is the soul of an Army. It makes small numbers formidable; procures success to the weak, and esteem to all.” But Mattis’ concern seemed to be not so much a general lack of discipline as a general lack of punishment.
Decrying non-punitive administrative action (like involuntary separation from the armed forces) as an easy-but-wrong way to address substandard conduct, Secretary Mattis wrote that it is a commander’s duty to use the military justice system:
The military justice system is a powerful tool that preserves good order and discipline while protecting the civil rights of Service members. It is a commander’s duty to use it. Military leaders must not interfere with individual cases, bur fairness to the accused does not prevent military officers from appropriately condemning and eradicating malignant behavior from our ranks. Leaders must be willing to choose the harder right over the easier wrong. Administrative actions should not be the default method to address illicit conduct simply because it is less burdensome than the military justice system.
(Emphasis in original). Not all illicit conduct is the same, of course, but Secretary Mattis’ memo did not draw such fine distinctions. “All Service members learn to fight well by doing the little things perfectly,” Mattis wrote, “otherwise they cannot possible get the big things right when all goes wrong.”
It’s easy to envision the effects of the memorandum. More courts-martial in general, certainly, but also perhaps more courts-martial of retired members (our #1 Military Justice Story of 2017) and more courts-martial after state prosecutions for the same acts (assuming such things remain Constitutional). Those consequences make the memorandum our #10 Military Justice Story of 2018.
Soon we will count down the top ten military justice stories of the year.
Please nominate the stories you think belong on the list, either in a comment to this post or by email to Zack@CAAFlog.com
Top Ten Military Justice Stories of 2017 – #1: Exercising court-martial jurisdiction over retired members
For a retired member of the armed forces, court-martial jurisdiction is like Hotel California:
You can check out any time you like,
But you can never leave!
Military retirement isn’t retirement in the ordinary meaning of the term; it’s just a change in status. Under Article 2(a)(4), 10 U.S.C. § 802(a)(4), the Uniform Code of Military Justice applies to regular retirees who are entitled to pay. That category includes servicemembers who complete 20 (or more) years on active duty and accept retirement, and also those who are medically retired after less time. See United States v. Bowie, 34 C.M.R. 411, 412 (C.M.A. 1964).
Prohibitions against things like contempt towards the President and other officials (Article 88), using marijuana (Article 112a), intentionally writing a bad check (Article 123a), and service discrediting conduct (Article 134) continue to apply to these servicemembers during their retirement. Jurisdiction is worldwide and – ever since the Supreme Court’s decision in Solorio v. United States, 483 U.S. 435, 439-441 (1987) – applies to conduct that is otherwise totally unrelated to military service.
But the exercise (and even the acknowledgement) of such jurisdiction was rare. That changed in 2017 with events that put court-martial jurisdiction over retirees in the headlines and make it our #1 Military Justice Story of 2017.
In 2012 we wondered if petitions for certiorari in military cases were an endangered species. At that point a decade had passed since the last grant of a petition filed by a servicemember, and that was just a summary remand (535 U.S. 1014). Two decades have passed since the Supreme Court last conducted a plenary review of a case brought by a servicemember. See Edmond v. United States, 520 U.S. 651 (1997) (holding that Sec. of Trans. may appoint civilians to the Coast Guard CCA). The Solicitor General, however, has a better track record, getting certiorari more recently in United States v. Denedo, 556 U.S. 904 (2009) (the #8 Military Justice Story of 2008).
The number of petitions increased after 2012, but a successful petition for certiorari in a military case is a rarity. So much so that we idolize it with a little statue we call the Golden CAAF. Here it is in the hand of Marcus Fulton circa 2008, before it was awarded to the Navy-Marine Corps Appellate Government Division for their role in the grant in Denedo:
In 2017 we awarded the Golden CAAF II for a tripartite grant in Dalmazzi v. United States, Cox v. United States, and Ortiz v. United States, to University of Texas School of Law professor Stephen Vladeck, who is lead counsel. He introduced it to UT mascot Bevo, and forwarded a picture:
The Supreme Court’s grant of certiorari is our #2 Military Justice Story of 2017.
Less than two months ago the Supreme Court reiterated that:
The terms waiver and forfeiture – though often used interchangeably by jurists and litigants – are not synonymous. Forfeiture is the failure to make the timely assertion of a right; waiver is the intentional relinquishment or abandonment of a known right.
Hamer v. Neighborhood Hous. Servs., __ U.S. __, 199 L.Ed.2d 249, 254 n.1 (Nov. 8, 2017) (quoting United States v. Olano, 507 U. S. 725, 733 (1993) (quoting Johnson v. Zerbst, 304 U. S. 458, 464 (1938)) (marks omitted).
It’s a timely reminder.
Over and over again in 2017, military courts and lawyers said that the mere failure to make an argument or objection – whether due to inattentiveness, ignorance, or otherwise – waived the issue, and the year ended with CAAF granting review in multiple cases challenging that conclusion.
That makes waiver mania the #3 Military Justice Story of 2017.
Sergeant (E-5) Mitchell was charged with various offenses at a general court-martial, and the prosecution wanted to use evidence obtained from his cell phone in its case. But there was a wrinkle; the cell phone was searched using access granted by Mitchell after he requested an attorney.
Mitchell’s defense counsel moved to suppress, asserting that the Fifth Amendment right to counsel was violated when investigators pressed Mitchell to decrypt his phone after he requested an attorney, and the military judge agreed. The prosecution appealed. The Army CCA affirmed the military judge’s ruling in a short opinion, and the prosecution continued its appeal to CAAF with a certification by the Judge Advocate General of the Army.
The case attracted attention from the Electronic Frontier Foundation, the American Civil Liberties Union, and the ACLU of the District of Columbia, all of whom supported Mitchell as amicus curiae. CAAF agreed. Holding that continued questioning of a suspect after he invokes his right to counsel violates the Fifth Amendment, and applying the military specific Mil. R. Evid. 305(c)(2), CAAF affirmed the suppression ruling.