CAAFlog » Year in Review » Top Ten Stories of 2010

The United States’ military has continually been at war for more than nine years.  The central reason the military justice system exists is to provide a fair and efficient justice system and means to ensure good order and discipline that the military can take with it wherever it fights.  Do we have such a portable military justice system today?  No, argued MAJ Franklin D. Rosenblatt in his provocative article, Non-Deployable: The Court-Martial System in Combat from 2001 to 2009, published in the September issue of the Army Lawyer.  The article advances the memorable “Burger King Theory”:

If a Soldier can eat at Burger King, he is also more likely to face court-martial for any serious misconduct he may commit.  If he is deployed somewhere without a Burger King, it is less likely that his misconduct will be addressed by court-martial.  This notion, which suggests that combat zone courts-martial are rare except on stable, large, garrison-style bases, can be called the Burger King Theory.

Id. at 21 (footnotes omitted).

MAJ Rosenblatt surveyed military justice data and after-action reports from Iraq and Afghanistan.  Page 14 of the article includes a very interesting data compilation.  Among the facts MAJ Rosenblatt discovered were the following: 

1.  “The thirty-seven special and general courts-martial tried in Iraq in 2003 did not begin until later that summer, after ‘active combat’ ended. . . . [N]o special or general courts-martial were conducted in Afghanistan until 2004, the fourth year of that conflict.” Id. at 16.

2. COL Kathryn Stone, who served as the 10th Mountain Division’s SJA, explained that it would have been nearly impossible to hold a court-martial in Afghanistan during early combat operations:

We would have had to fly in a TC [trial counsel], TDS [trial defense services] Counsel, Judge, court-reporter, etc., and not only were flights erratic but the priority on flying in personnel were more troops and beans and bullets. There was no place to quarter any visitors—water and food were scarce, and there really was no downtime in which to pull our limited troops off of their operational duties in order to run a court.

Id.  CLAMO found that “[c]ases involving more serious misconduct were transferred to the United States for prosecution due, in part, to the austere conditions in Afghanistan.”  Id.

3.  “The most common court-martial difficulty cited by deployed units was securing the live testimony of witnesses.” Id. at 17.  A 1st Cavalry Division after-action report stated that a “contested rape case shut down a line company for almost a week as they moved witnesses and managed the other logistics associated with trial.” Id. at 21.  Witness production issues sometimes led to moving the case out of the theater of operation to the United States.  Id. at 17.

4.  “In early Iraq, at least three Army divisions each decided not to try cases. The 82d Airborne Division declared its commander a General Court-Martial Convening Authority (GCMCA), but only for the purpose of appointing investigating officers for certain administrative investigations. The 101st Airborne Division ‘made the decision not to try any general or special courts-martial in the deployed theater” during its yearlong deployment. Likewise, the 3d Infantry Division did not select a panel and ‘did not try any general or special courts-martial in the deployed theater before it redeployed in August of 2003.'” Id. at 17-18 (internal footnotes omitted).

5.  “Units also mentioned the lack of easy access to a military judge in theater as a reason for diverting misconduct away from the court-martial track.” Id. at 18.

6. A judge advocate assigned with the 82d Airborne Division explained that his unit held summary courts-martial to try offenses that would normally result in a general court-martial. Id.

7.  “[M]ost units limited their courts-martial to guilty pleas,” often by offering unusually lenient pretrial agreements to achieve a guilty plea. Id. at 19-20.

MAJ Rosenblatt’s article portrays the military justice system as failing to meet its principal task of providing justice and promoting good order and discipline wherever the U.S. military goes.

While MAJ Rosenblatt’s article is probably the most systematic look at the issue, his is hardly the only voice arguing that the military justice system is doing a poor job meeting the demands arising from constant combat operations.  We’ve seen repeated criticisms of the military justice system’s handling of alleged crimes arising in combat zones, from Congressman Dan Burton’s and others’ objections to Major General Charles Cleveland’s decision to court-martial three Navy SEALs accused of abusing an Iraqi detainee (all of whom were acquitted) to the the Leavenworth 10 Freedom Ride, protesting the convictions and sentences of ten Soldiers and Marines who were found guilty of some form of homicide arising from the killing of Iraqis.

Concerns that the military justice system has become too unwieldy to function in a deployed setting is a recurring theme.  MAJ Rosenblatt cites General William Westmoreland and Major General George Prugh’s article, Judges in Command: The Judicialized Uniform Code of Military Justice in Combat, 3 Harv. J. L. & Pub. Pol’y 1 (1980).  Other examples include Lieutenant Colonel E. A. Gates and Major Gary V. Castla’s article, Report to the Judge Advocate General by the Wartime Legislation Team, 104 Mil. R. Rev. 139 (1984), and Colonel Ted B. Borek’s article Legal Services During War, 120 Mil. L. Rev. 19 (1988).  But the issue continues to arise because it is so important.  MAJ Rosenblatt’s article should be the catalyst for a serious debate over whether today’s military justice system is capable of functioning effectively in a combat environment and, if not, what can be done to fix it.

The Hennis case arises from a truly horrific crime.  Kathryn Eastburn, the wife of an Air Force captain who was out of town on temporary duty, was raped and killed in the Eastburn family’s home outside Fort Bragg on 9 May 1985.  The Eastburns’ three- and five-year-old daughters were also murdered.  Their infant baby was left alone in her crib.  The baby’s cries two days after the murders alerted neighbors that something was wrong.

Law enforcement officials quickly focused on Timothy Hennis, a soldier at Fort Bragg who had been to the Eastburns’ home to pick up a dog a few days before the murders.  In 1986, Hennis was tried by the state of North Carolina for the three murders and rape.  He was convicted and sentenced to death.  The North Carolina Supreme Court reversed the conviction, holding that the trial court erred by allowing the prosecution to present numerous grizzly crime-scene and autopsy photographs during the guilt/innocence stage.  State v. Hennis, 372 S.E.2d 523 (N.C. 1988).  Two justices dissented.  Id. at 528-31.  In 1989, Hennis was retried by the State of North Carolina and acquitted.

Hennis then chose to stay in the Army until retirement.  Bad move.  Scientific advancements provided law enforcement agencies with more sophisticated tools following the two original trials.  In 2006, a Cumberland County Sheriff’s Office “cold case” detective ordered DNA testing of evidence from the case.  The results conclusively identified Hennis as the source of semen found in Mrs. Eastburn’s corpse.  Because Hennis had retired from the military, he was still subject to UCMJ jurisdiction.  Article 2 of the UCMJ provides:  “The following persons are subject to this chapter: . . . (4) Retired members of a regular component of the armed forces who are entitled to pay.”  10 U.S.C. § 802(4).

And because the federal government is a separate sovereign from the State of North Carolina, he could be tried by court-martial notwithstanding the Double Jeopardy Clause and Hennis’s acquittal at his second state trial.  See, e.g., Moore v. Illinois, 55 U.S. (14 How.) 13, 20 (1852), which we discussed here.

And tried by court-martial he was.  The DNA evidence in the case was devastating — so devastating, in fact, that during the defense findings argument, Hennis’s civilian defense counsel offered a new theory:  Hennis and Mrs. Eastburn might have had a consensual affair. 

After convicting Hennis of three specs of premeditated murder, the members sentenced him to death.  It was the first death sentence adjudged by a court-martial since 2005 and only the 16th adjudged under the current military death penalty procedures, which President Reagan promulgated in 1984.  (Two of the 16 adjudged death sentences were set aside by the CA and another 8 were reversed on appeal.)

Those facts alone would be sufficient to make Hennis one of the top military justice stories of the year.  But there’s more.  Before trial, Hennis’s counsel launched an ultimately unsuccessful bid in U.S. district court to stop the court-martial on jurisdictional grounds.  The district court denied habeas relief on abstention grounds in this decision.  Hennis v. Hemlick, No. 5:-09-HC-2169-BO (E.D.N.C. Mar. 16, 2010).  Hennis’s counsel appealed to the Fourth Circuit for injunctive relief in an attempt to stop the court-martial.  The Fourth Circuit denied injunctive relief in this decisionHennis v. Hemlick, No. 10-6400 (4th Cir. Apr. 1, 2010). But while the Fourth Circuit declined to stop the trial in April, an appeal of the merits of the habeas denial is still proceeding in the Fourth Circuit.  Hennis’s brief, available here, argues that there was a break in MSGT Hennis’s service that precluded the exercise of court-martial jurisdiction over the 1985 offenses. 

The version of Article 3 of the UCMJ in effect at the time of the offenses provided:

Subject to section 843 of this title (article 43), no person charged with having committed, while in a status in which he was subject to this chapter, an offense against this chapter, punishable by confinement for five years or more and for which the person cannot be tried in the courts of the United States or of a State, a Territory, or the District of Columbia, may be relieved from amenability to trial by court-martial by reason of the termination of that status.

The 1969 (Revised) MCM included this interesting notation following Article 3(a):

NOTE:  This article has been held to be unconstitutional to the extent that it purports to extend court-martial jurisdiction over persons who, although subject to the code at the time of the commission of the offense, later ceased to occupy that status.  (Toth v. Quarles, 350 U.S. 11 (1953)).  This article is still applicable to such persons, however, if they subsequently return to the status of a person subject to the code.  (United States v. Winton, 15 USCMA 222, 35 CMR 194 (1965); United States v. Gallagher, 7 USCMA 506, 22 CMR 296 (1957)).  See United States v. Wheeler, 10 USCMA 646, 28 CMR 212 (1959).

The Hennis brief argues that the old Article 3(a) doesn’t provide court-martial jurisdiction because the Double Jeopardy Clause doesn’t absolutely bar a retrial in North Carolina courts since the protection against double jeopardy can be waived. 

The Hennis case is also significant due to the role it has played in the death penalty debate.  After Hennis was acquitted at his second trial, his case was offered by death penalty opponents as an example of someone who had been sentenced to death and subsequently exonerated, thus suggesting the fallibility of verdicts in capital cases.  (The Death Penalty Information Center discusses the listing of the Hennis case as an exoneration here.)  But as a result of the evidence presented at his court-martial, it appears that Hennis is factually guilty and he has been adjudged as such.  The pro-capital punishment Criminal Justice Legal Foundation issued this press release arguing Hennis’s reconviction “conclusively debunked” DPIC’s “innocence list.”  The controversy calls to mind the recent New Republic article  (11 November 2010 issue) by Charles Lane of the Washington Post arguing that death penalty opponents made a tactical mistake by relying so heavily on the risk of wrongful execution.

There will be a post-trial Article 39(a) session in the Hennis case later this month, as the Fayetteville Observer reported here.  That hearing is apparently scheduled for 21 January at the USDB, as we discussed here.

We’ll continue to follow the developments in the Hennis case — in both the Article I and Article III courts — throughout 2011 and no doubt well beyond.

Our number three military justice story of the year features, appropriately enough, a trio of cases. 

In 2008, NMCCA reversed one of two premeditated murder convictions and the death sentence in the case of United States v. LCpl Wade Walker, 66 M.J. 721 (N-M. Ct. Crim. App. 2008).  That case was retried this year, ending in a sentence of confinement for life.

In 2006, CAAF affirmed the portion of NMCCA’s opinion in United States v. Quintanilla setting aside the death sentence in that case.  United States v. Sgt Jessie Quintanilla, 63 M.J. 29 (C.A.A.F. 2006).  The convening authority agreed to a non-capital disposition of the case this year.

And in 1998, CAAF set aside the death sentence in United States v. SGT James T. Murphy, 50 M.J. 4 (C.A.A.F. 1998).  The convening authority agreed to a non-capital disposition of the case this year.

Eight of the 13 approved death sentences imposed under the current military death penalty system have been reversed on appeal.  (Three remain pending at the first level of appeal; the CA hasn’t yet acted in Hennis.)  And now in all eight of those cases, the original death sentence has been replaced by a sentence including confinement for life.

[Familiar disclosure — a bunch of the contributors to this blog, including me, took part in the Walker and Quintanilla appeals.]

One of the main lessons I draw from these cases is that great lawyering matters.  I followed the Walker retrial closely, though unfortunately I was actually in the courtroom for only half a day.  I have no doubt that but for the incredible job that LCpl Walker’s defense team did, he would have been resentenced to death.  There were three particular points in the trial — voir dire and challenges being one of them, one involving the admissibility of a particularly damaging piece of sentencing evidence, and the third involving an instruction issue — when the ultimate outcome likely would have been different but for the performance of LCpl Walker’s counsel.  The team that represented him consisted of LtCol (soon to be Col) John Baker, who was the Marine Corps’ East Coast Regional Defense Counsel at the time and who is now the Chief Defense Counsel of the Marine Corps; our CAAFlog colleague CDR Jason “Super” Grover, who had previous capital experience in the appellate arena; and Capt Kelly Repair. 

Continuing with the great lawyering matters theme, almost certainly the most experienced capital litigator in the Department of Defense is Navy CAPT Henry Lazarro.  He has been on both sides of capital cases at the trial level, has capital appellate experience, and ran the Navy’s capital litigation resource center.  He is THE military capital guru.  And he’s been involved with the Quintanilla case for about a decade now.  He worked every possible angle for his client.  When doors were repeatedly shut in his face, he found other doors.  And finally this year, he and his team of LCDR Stephen Reyes and Capt Suzanne Dempsey accomplished their mission by obtaining the convening authority’s agreement to send the case to a non-capital sentence rehearing.  Great lawyering prevailed for the client.

Army LTC Jim Varley was the great lawyer who represented SGT Murphy on the remand of his capital case.  This year’s agreement with the convening authority to proceed with a non-capital sentence hearing was the culmination of LTC Varley’s eight years of work on the case.

Another lesson these cases teach is the importance of continuity of counsel.  CAPT Lazarro worked the Quintanilla case for about 10 years; LTC Varley worked the Murphy case for eight years, and CDR Grover worked the Walker case for more than six years. 

Regardless of how one feels about the death penalty or the results of any of those particular cases, I’m sure we all appreciate that the military mission and professional duty of the defense counsel assigned to those three cases was to obtain the results they did.  They performed that military mission brilliantly and successfully.  For providing such outstanding examples of the craft of lawyer, the three life sentences adjudged this year in three remanded capital cases is our number 3 military justice story of the year.

As CAAFlog previewed earlier in the Top 10, CAAF’s game-changing decision in United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010), and subsequent application in United States v. Alston, 69 M.J. 214 (C.A.A.F. 2010), has for the near future totally altered how the military pleads lesser included offenses.  The place of Jones in the Top 10 was solidified the day it was published.  The decision was immediately identified as the most important decision of CAAF’s last term, a “landmark” decision, and, my favorite, “a big freakin’ deal.” 

While the Jones LIO test is, as Judge Ryan characterized it, “eminently straightforward,” the Manual for Courts-Martial and military practice for the past . . . 60 years (?) . . . have determined LIOs differently.  Jones will require a re-evaluation of LIOs in the entire Manual and the CCAs and CAAF will need to work out other issues such as notice pleading for purposes of Art. 134, see United States v. Fosler, __ M.J. ___, No. NMCCA 201000134 (N-M. Ct. Crim. App. Oct. 28, 2010) and United States v. Bernard, No. 1328 (C.G. Ct. Crim. App. Dec. 21, 2010), and the prejudice standard to be applied to all the cases in the pipeline that will fail under Jones, see United States v. McMurrin, 69 M.J. 591 (N-M Ct. Crim. App. Sep. 21, 2010) (certified issue here).

Why is the decision not higher in the Top 10 given the game-changing nature of the decision?  Internecine warfare amongst CAAFlog contributors re: the Top 10?  Total lack of cross-over appeal outside the MilJus community?  I’d have to go more with the latter as I think many of us here at CAAFlog realize that while Jones changes pleading as we know it, and may change the entire pleading landscape in the future, the decision is pretty inside baseball.  I would have to agree that 2 of the remaining 3 on the list are rightfully higher for exactly that reason, broader appeal and coverage outside of military justice circles.  The third I think landed in the Top 3 due to an unhealthy obsession with military capital punishment by a certain CAAFlog contributor, who I won’t identify :-)

Military justice caseloads continue to shrink.  As we noted here, from FY 2004 to FY 2009, DOD experienced a 33% drop in the number of GCMs and SPCMs tried — from 4,384 to 2,919.  The Army saw a 12% reduction in the number of GCMs and SPCMs tried.  The Air Force had a 26.4% reduction.  The reduction in the Department of the Navy was 49%.  Meanwhile, our non-DOD sister service, the Coast Guard, experienced a 21% drop from 39 to 31. 

My guess is that in the long-run, the continued decline in court-martial caseload may be the most important military justice story of the year.  (Yes, at the contentious CAAFlog online confab, I voted for this to be the #1 story and was hooted down by my colleagues.  I think the No Man’s vote for #1 had to do with the Apprendi implications of the expansion of court-martial jurisdiction over civilians accompanying the military in contingency operations.)  As demonstrated by the .5% reduction in the planned 2011 military pay raise and the two-year freeze for most federal civil servants’ pay, we are entering a period of budget austerity.  How long will it be before the budgeteers notice the decline in military justice caseload and start asking hard questions about whether there’s been a commensurate decline in military justice expenditures? 

This strikes me as a good time for the military justice community to give some serious thought to how to perform its mission more efficiently and at lower cost.  The military justice community has been notoriously resistant to change.  But we may be entering an era where those who don’t streamline voluntarily will have a cleaver do the streamlining for them.  

Probably the main way to promote military justice efficiency is to increase jointness.  Here are just a few ideas, some of them proposed previously by CAAFlog readers, concerning how to operate the military justice system at less cost than we do today:

(1)  Make the military trial judiciary a joint command.  A court-martial of an Airman at Kadena Air Force Base should be presided over by the Marine Corps judge stationed at Camp Foster.  A court-martial of a Sailor at Naval Air Station Pensacola should by presided over the Air Force judge stationed at Eglin Air Force Base.

(2)  Create a single joint stovepipe trial defense service to provide a trial defense counsel for each court-martial held in any branch of the military.

(3)  Consolidate or eliminate the CCAs.  With the reduced number of courts-martial and commensurate reduction in military appellate caseloads, there is no need for five separate military appellate courts.  This is especially the case now, when construction is planned or underway for new courtrooms for at least two of the four CCAs.  At the very least, the four CCAs should be consolidated into a single court.  Better yet, they should be eliminated and CAAF should be revamped to function in the same manner as one of the geographic federal courts of appeals hearing criminal cases from within its circuit.

(4)  Consolidate the four appellate defense divisions into one and consolidate the four appellate government divisions into one.

I invite our readers to propose other measures to streamline the military justice system.

Coming in at number 6 [sorry, I can’t replicate the Casey Kasem voice in WordPress] is the focus on Navy-Marine Corps’ legal services that began with the congressional direction to the Defense Department to:

study of the policies and management and organizational practices of the Navy and Marine Corps with respect to the responsibilities, assignment, and career development of judge advocates for purposes of determining the number of judge advocates required to fulfill the legal mission of the Department of the Navy.

See Public Law 111-84, Sec. 506(b)(1) (National Defense Authorization Act for Fiscal Year 2010).  As we anticipated nearly 14 months ago, here, there was a gathering storm about Navy and Marine Corps judge advocate billets when the FY2010 Defense Authorization Act was in Congress.  As Congress was passing the NDAA, the Senate was directing another investigation by the DOD IG into Navy-Marine Corps’ post-trial processing–which was also requested in the Senate Report for the FY2010 NDAA, see here.

What was the driving force behind all of this commotion about Navy-Marine Corps judge advocates and the administration of military justice?  As commenters that attended the 506 Panel hearings noted, it was primarily preventing another situation like our #4 Military Justice story of 2009, the United States v. Foster debacle.  The Senate Report (at 131-32), in fact, laid out the painful history and reason for its direction to the DOD IG:

The committee believes that action is long overdue to analyze and correct longstanding problems with the post-trial processes for preparation of records of courts-martial and for appellate review of court-martial convictions within the Department of the Navy. The United States Court of Appeals for the Armed Forces (C.A.A.F.) in the case of Toohey v. United States, 60 M.J. 100 (C.A.A.F. 2004), established standards for assessing whether convicted service members had been denied due process under the Fifth Amendment to the Constitution as a result of denial of reasonable appellate processing of their cases. Since then, a succession of Navy and Marine Corps cases, including, but not limited to, United States v. Jones, 61 M.J. 80 (C.A.A.F. 2005); United States v. Allison, 63 M.J. 365 (C.A.A.F. 2006); United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006); United States v. Dearing, 63 M.J. 478 (C.A.A.F. 2006); and, most recently, the unpublished case of United States v. Foster have addressed extremely lengthy delays in appellate review. In the Foster case, the conviction of a Marine was set aside because his conviction for rape “could not withstand the test for legal and factual sufficiency.” This Marine had been confined for more than 9 years awaiting appellate review of his case. These cases demonstrate that cognizant legal authorities in the Department of the Navy have not taken necessary and appropriate steps to ensure that the resources, command attention, and necessary supervision have been devoted to the task of ensuring that the Navy and Marine Corps post-trial military justice system functions properly in all cases.

The committee recognizes that a series of Navy Judge Advocates General have attempted to overcome the systemic challenges associated with preparing, authenticating, tracking, and forwarding records of trial from numerous commands entrusted with court-martial convening authority and ensuring that the appellate review process comports with all legal standards. The committee is convinced, however, that intervention is needed by departmental civilian and military leaders to definitively resolve these chronic administrative problems and that action should be taken immediately to resolve these issues.

This year saw those efforts produce a “hard hitting” report from the DOD IG, here, that called out the Navy-Marine Corps’ judge advocate community for “los[ing] sight of its core mission.”  The IG concluded that:

There was a consistent failure in leadership and inadequate institutional vigilance, supervision and oversight at all organizational levels involved in administering military justice. The failures also represented a deviation from fundamental principles of professional responsibility, which require diligence, competence and timely representation of clients’ interests in the criminal justice system.

The DOD IG made several recommendations for continued reform, and also applauded the Navy-Marine Corps’ legal community for some reforms that are already in place. 

Part 2 of the process should conclude in early 2011 as the final 506 Panel hearings come to a close and the Panel publishes it’s final report.  A current draft of the report, here, and additional information available in our prior coverage here, suggests that the 506 Panel will not be nearly as critical of the Navy-Marine Corps community.  The current draft conlcusion in the Staff Draft Report states:

The General Counsel, the Judge Advocate General, and the Staff Judge Advocate to the Commandant of the Marine Corps are committed to full cooperation in finding the most efficient and effective ways to provide legal services for the Department of the Navy. Appropriate common directives and guidance, bolstered by shared training through the Naval Justice School, exist and are sufficient. The existence of common practices and procedures, and legal training enhance the ability of the two Services to consider and efficiently implement teaming efforts in support of Department of Navy missions. 

Another facet that made this, for me, a Top 10 story for 2010, beyond its potential for long lasting effects on military justice practitioners and all DON judge advocates, was the evolving under-current of the 506 Panel.  The unexpected (and unwelcome, at least for one 506 Panel member) push by the Marine Corps’ legal community during hearings, and in submissions, to have Marine Corps’ JAs be considered for the DON JAG and DJAG positions makes this a very interesting story that reveals historic tensions in the DON judge advocate community.  While we don’t anticipate Jerry Springer moments at the Jan. 7, 2011 final public hearing, the subtle jabs by Navy and Marine Corps judge advocate leaders have been interesting to watch.

Does a member of the public have a right to attend a court-martial?  Those of us in the system answer, “Of course.  R.C.M. 806.”  But some government officials nevertheless attempt to control public or media attendance at military judical proceedings — generally with negative results.

R.C.M. 806(a) provides:  “Except as otherwise provided in this rule, courts-martial shall be open to the public.  For purposes of this rule, ‘public’ includes members of both the military and civilian communities.”  The first of the Rule’s two exceptions is for control of spectators:  

In order to maintain the dignity and decorum of the proceedings or for other good cause, the military judge may reasonably limit the number of spectators in, and the means of access to, the courtroom, and exclude specific persons from the courtroom. When excluding specific persons, the military judge must make findings on the record establishing the reason for the exclusion, the basis for the military judge’s belief that exclusion is necessary, and that the exclusion is as narrowly tailored as possible.

The other exception is for closure: 

Courts-martial shall be open to the public unless (1) there is a substantial probability that an overriding interest will be prejudiced if the proceedings remain open; (2) closure is no broader than necessary to protect the overriding interest; (3) reasonable alternatives to closure were considered and found inadequate; and (4) the military judge makes case-specific findings on the record justifying closure.

While R.C.M. 806 is more specific than its predecessors, the rule of openness is long-standing in military law.  Paragraph 53e of both the 1951 and 1969 (Revised) MCMs began by decreeing that “[a]s a general rule, the public shall be permitted to attend open sessions of courts-martial.” 

In light of the presidentially prescribed R.C.M. 806(a), it’s mindboggling that government officials could think that it’s okay for someone other than the military judge to exclude specific individuals from a court-martial or allow them to attend a court-martial only if they promise not to repeat certain information uttered in open court.  Yet government officials did just that in 2010. 

On 2 June, a reporter from the Fayetteville Observer was excluded from a court-martial session at Fort Bragg in the case of United States v.  SPC Aaron Pernell because the reporter wouldn’t sign a statement agreeing to abide by certain ground rules concerning the reporting of names of alleged victims revealed in open court, as reported by the Fayetteville Observer here.  As the Observer noted:

The Observer’s policy is to not publish names of victims of sexual crimes. But in the Pernell case, not every victim is a sexual assault victim.  The 82nd Airborne Division’s ground rules prohibited naming any of Pernell’s alleged victims, no matter the crime, even though some have testified at a previous hearing.

And anyone who wasn’t a reporter could attend the session without restriction.

The 82nd Airborne Division’s lawyers reportedly backed the decision to exclude the reporter unless he agreed to the ground rules.

Observer reporters covered later sessions in the court-martial, when the ground rules were modified to remove the prohibition against naming victims. 

Then September brought us the case of Martin v. NCIS in the United States District Court for the Southern District of California.  It started out as a case about alleged governmental retaliation against an effective military defense investigator.  But, as civil cases often do, it quickly morphed into something else:  a test of whether there’s any public right to attend a court-martial session.  An Assistant United States Attorney argued the negative.  This North County Times article reported the following exchange between Judge Hayes and an AUSA:

Hayes asked Clukey, who represents the government, what constitutional rights, if any, the public has to attend military court hearings.  Hayes said he wanted to know whether Martin was treated differently than the public in being denied access to the military court system.

“It is certainly a significant issue,” Hayes told Clukey.

Clukey replied that the military has “complete discretion” over how it runs its courts and that the public has no right whatsoever to attend.  She said the public is granted entry by “invitation only.”

The article continued, “Upon further questioning by Hayes, Clukey admitted she didn’t know what the military’s policy is toward public access to its courts.  Hayes set a Tuesday hearing date to give her time to find out.”  And apparently she did.  The government caved.  DOJ sent the plaintiff’s counsel this letter (pasge 4) stating that “MCRD allows members of the public to access its courtroom for open military hearings.  MCRD will allow[the Plaintiff] this same access and she will be treated the same as any other member of the public.” 

And, of course, in May, as discussed by the McClatchy News Service here, the military commission system suffered yet another self-inflicted wound when DOD decided to ban four reporters from covering future military commission proceedings for including in articles purportedly protected information that was already in the public domain.

These incidents reveal the wisdom of R.C.M. 806.  Government officials sometimes succumb to a desire to attempt to control access to judicial proceedings and media coverage of those proceedings.  R.C.M. 806 largely trumps that desire when it comes to courts-martial.

The Navy JAG Corps will probably be happy to see 2010 in its rearview mirror.  One of the less-than-pleasant events during 2010 was the VWAP fiasco in United States v. Velasquez, which led to the promulgation of new VWAP rules and procedures for the Navy JAG Corps. 

As described in this Stars and Stripes article, LCDR Anthony L. Velasquez was a Navy doctor accused of sexually molesting 23 women during the course of purporting to provide medical treatment at Atsugi, Japan and Camp Arifjan, Kuwait.  On 26 May 2010, he pleaded guilty to two specs of wrongful sexual contact and two specs of conduct unbecoming an officer and a gentleman.  As part of a PTA, the government dropped 29 other specs.  The adjudged sentence was confinement for two years, a $28,000 fine with a 6-month enforcement provision, total forfeitures, and a dismissal.  But under the PTA, LCDR Valasquez ended up spending just 7 days in confinement and was protected from the fine as well. 

As Stars and Stripes reported:

[A] post-trial e-mail sent to victims by the JAG office left some with the impression that Velasquez would suffer a much harsher fate.

The May 26 e-mail stated that “the judge awarded a sentence of 24 months, a $28,000 fine to be paid right away or else an additional 6 months would be imposed, total forfeitures of pay, and most iportantly [sic], a DISMISSAL from the Navy.”

The e-mail made no mention of the plea agreement. Nor did it state that the judge’s sentence had been largely set aside because of the plea deal.  Unless Velasquez violates the terms of the plea agreement and commits another crime, he won’t go to federal prison or pay any penalties.

Victims interviewed by Stars and Stripes were confused by what had happened and unaware of the defense-friendly terms of the PTA.  All seven of the victims Stars and Stripes interviewed “expressed dismay over the terms of the plea deal, which most called ‘a slap on the wrist.'”

 Some of the victims alleged that the Velasquez case was an example of “different spanks for different ranks.”  One said:  “[T]his is yet another example of the military protecting officer positions from disciplinary action.  Have an enlisted man do the same thing, the sentence would have been much harsher.”

As we discussed, following his return to the States from Japan, LCDR Veleasquez was arrested at one point for failing to register as a sex offender in Washington State, though he was later released.  According to the Miltiary Sex Offenders Registry website, LCDR Velasquez is now registered as a sex offender in Kentucky.

This lengthy piece that ran in the Japan Times on 30 November revisted the case.  One of the victims criticized the convening authority, RADM Richard Wren, for agreeing to such a defense-favorable pretrial agreement.  According to the victim, “[S]omebody had told Adm. Wren it was going to cost $200,000 to go to trial . . . .  When he found out it was to come from his budget, Wren forced them to make a plea deal, behind our backs, which is a violation of our rights . . . .”

The Japan Times report indicates that the Secretary of the Navy approved LCDR Velasquez’s dismissal on 20 October 2010.  If so, LCDR Velasquez must have waived appellate review, since there’s no NMCCA decision in his case.  Perhaps he and his counsel thought it best to quickly terminate the military’s jurisdiction.

Impact of the Velasquez VWAP fiasco continues to reverberate.  According to the Japan Times article, an investigation is being conducted concerning the case.  Also, the case appears to have led to changes in VWAP procedure within the Navy.  On 14 June 2010 — 10 days after the critical Stars and Stripes article was published — the Navy JAG Corps issued a new VWAP regulation:  JAG/COMNAVLEGSVCCOMINST 5800.4.   The Instruction includes the following provision regarding victims and the pre-trial agreement notification process:

[h.](5)  Victims [sic] Views Concerning Pretrial Plea Negotiations.  Victims have a statutorily designated advisory role in decisions involving prosecutorial discretion, such as plea-bargaining.  Trial counsel shall ensure victims are aware of their right to act in this advisory capacity.  In those cases in which a victim has elected to exercise the right to act in such an advisory capacity, Trial Counsel shall ensure the victim’s views concerning prosecution and plea negotiations are obtained and forwarded to the convening authority prior to the finalization of a pretrial agreement.

A later paragraph adds, “Alth0ugh the victim’s views should be considered, this instruction is not intended to limit the responsibility or authority of any service member to act in the interests of good order and discipline.”  Id. at para. h.(14).  The Instruction also spells out the trial counsel’s notification requirements as to victims and witnesses.  Id. at paras. h.(3), (4).  The Instruction also includes a VWAP Compliance Checklist.  Id. at encl. (1).  Block e on that form provides:  “Ensure victims are aware of their statutorily designated right to serve in an advisory capacity regarding decisions involving prosecutorial discretion, such as plea-bargaining.”  Block f provides:  “In those cases where a victim has elected to exercise the right to act in such an advisory capacity, ensure the victim’s views concerning prosecution and plea negotiations are obtained and forwarded to the convening authority.”

The Navy JAG Corps was no doubt embarrassed by the Velasquez case.  But it has certainly taken reasonable steps to avoid being embarrassed by a similar episode in the future.

There was disagreement at the CAAFlog confab as to whether the case of United States v. Lakin should make the top-10 list.  After all, it is a dog-bites-man story.  The military justice system proceeded in a way that was not merely predictable but predicted.  The case makes our top-10 list largely because the dog was barking-mad and there was a three-ring flea circus performing on its back.

One of the striking things about the Lakin case is how well the military officers involved in the system functioned amidst all the barking madness.  The first military justice practitioner to touch the case was MAJ Kemkes, who would ultimately be the detailed defense counsel.  During the court-martial, we learned that he repeatedly advised LTC Lakin that his orders were legal and he was obligated to follow them.

Those responsible for making the charging decisions followed the KISS principle.  They didn’t get exotic, though they easily could have.  Nor did they pile on.  Rather, they charged common, easy-to-prove offenses in five specifications, two of which were pled in the alternative.

While one trial counsel was relieved early in the case after it was alleged that he made some inflammatory remarks, the three young trial counsel who litigated the case did a superb job.  CPT O’Beirne’s sentencing argument was particularly impressive. 

But the biggest kudos go to Judge Lind.  She went to great lengths to promote openness at the trial, including authorizing a closed circuit video feed of the proceedings into a media center to ensure that those interested in watching the case wouldn’t be turned away if the courtroom’s 60-seat capacity had been exceeded.  Throughout the trial, she took the time to explain to those watching what was happening, such as when she went into detail about what an R.C.M. 802 conference is and why they are held.  And she was remarkably restrained during the occasional birther outbursts that punctuated the proceedings.  Any rational observer saw a model of careful justice during which the accused engaged in a 90-minute dialog explaining under oath why he was guilty of four of the five charged offenses and a panel of eight colonels concluded that the evidence established beyond a reasonable doubt that he was guilty of the fifth.  And while the amount of confinement adjudged was less than some (including me) predicted, the military justice system’s sentencing voting rules encourage the members to adjudge the lightest acceptable sentence.  It appears that the system worked as designed in the Lakin case.

Any military justice practitioner watching the trial would have been very proud of the way our system functioned. Some of the birthers present derided the court-martial as a “kangaroo court.”  It wasn’t.  The trial demonstrated once again the beauty of the Care inquiry.  How could anyone reasonably believe that the result was unfair when the accused himself admitted that his conduct was criminal and repeatedly stated under oath not only that the orders he received were lawful, but that he knew at the time he violated them that they were lawful?

Of course, the entire case was an effort to misuse the military justice system for a political purpose.  Such an effort was doomed to fail.  LTC Lakin’s immolation of his career was also unnecessary.  His decision to willfully disobey orders was made in an attempt to acquire the Holy Grail of birtherism:  a copy of President Obama’s long-form birth certificate.  The New York Times reported yesterday that Hawaii’s new governor — Neil Abercrombie, who had been friends with President Obama’s parents while the President’s father was studying at the University of Hawaii —  announced that he is seeking legal authority to “release more explicit documentation of Mr. Obama’s birth on Aug. 4, 1961, at Kapiolani Maternity and Gynecological Hospital.”

LTC Lakin will likely be released from confinement — and no doubt placed on appellate leave — sometime around mid-May.  At some point after that, ACCA will almost certainly affirm the findings and sentence in his case.  Any petition to CAAF will likely be denied.  The Secretary of the Army or his designee will then approve the dismissal. And the case of United States v. Lakin will come to its inevitable conclusion.

On 25 June 2009, the Supremes issued a major criminal procedure case:  Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009).  The case caused an immediate stir and generated plenty of cries that the sky is falling (much like CAAF’s decision in United States v. Jones, 68 MJ 465 (2010), which we’ll discuss further up the top-10 list).  The Virginia General Assembly convened in a special session during the summer of 2009 to deal with Melendez-Diaz.

In 2010, the tsunami that was Melendez-Diaz roiled the military justice system’s waters.  First came last term’s CAAF decision in United States v. Blazier, 68 M.J. 439 (C.A.A.F. 2010).  That decision held that the cover page on the standard military drug lab litigation package is testimonial and may not be admitted over a confrontation objection without making the declarant available for cross-examination.  Blazier I, however, left unclear how much of the remaining package, if any, constitutes testimonial statements implicating the accused’s confrontation rights. 

Then came this term’s decision in Blazier II, __ M.J. __, No. 09-0441/AF (C.A.A.F. Dec. 1, 2010).  Blazier II is significant in that it laid out a path that the government can follow to avoid a Confrontation Clause issue when presenting evidence that an accused’s sample tested positive for metabolites of a controlled substance: 

[A]n expert may, consistent with the Confrontation Clause and the rules of  evidence, (1) rely on, repeat, or interpret admissible and nonhearsay machine-generated printouts of machine-generated data and/or (2) rely on, but not repeat, testimonial hearsay that is otherwise an appropriate basis for an expert opinion, so long as the expert opinion arrived at is the expert’s own.  However, the Confrontation Clause may not be circumvented by an expert’s repetition of otherwise inadmissible testimonial hearsay of another.

Id., slip op. at 8-9 (internal citations omitted).

But Blazier II doesn’t indicate which parts of a drug lab’s litigation package are testimonial, thus leaving for future cases the issue of which portions of the litigation package an expert without personal knowledge of the testing  can repeat without offending the Confrontation Clauset.  CAAF has a number of Blazier II trailers on its docket that it could use to further develop the law.  Or it could remand those cases to the CCAs for them to consider the issues left unresolved by Blazier II.  CAAF has already remanded the Blazier case itself to AFCCA to determine whether the Confrontation Clause error in that case is harmless. 

Additionally, the Supreme Court will hear a case this term that raises the same issue as Blazier IIBullcoming v. New Mexico, 09-10876, which will be argued on 22 February 2011.  While it seems likely that the Supremes will reach the same conclusions in Bullcoming that CAAF reached in Blazier II, Bullcoming carries the potential to further roil the waters surrounding the admissibility of drug testing results in the military

My colleague LtCol Chris Thielemann has accused me of being obsessed with Melendez-Diaz, so of course we’ll continue to follow Blazier, Bullcoming, and all of the issues associated with those cases throughout 2011.

This has been an eventful year in military justice land.  Over the coming days, we’ll continue our annual tradition of posting our choices of the top-ten military justice stories of the year.  But unlike last year, when we reached a consensus concerning our choices, this year there is considerable disagreement among the CAAFlog contributors concerning what should make the list.  So we’ll see how this process will go.  Perhaps the No Man will hijack the list at some point and insert some of his choices.

Less controversial are the cases we’ll be keeping an eye on over the coming year.  Probably foremost among those is the trial of MAJ Nidal Hasan, who we assume will be tried by a capital court-martial during 2011.  Another expected military justice case high on our radar screen is that of PFC Bradley Manning, though there have been some recent indications that his case may be diverted to United States District Court.  We’ll also be following the habeas litigation in military death row inmate Ronald Gray’s case, which we expect to produce some interesting law over the coming year.  We’ll continue to cover all of those stories, plus whatever unexpected developments pop up.  After all, in December 2009, none of us had ever heard of LTC Terrence Lakin.