CAAFlog » Year in Review » Top Ten Stories of 2012

With this year’s version of the Top 10 completed on New Year’s Day, we launch into 2013.  I will miss the rancor and debate about the Top 10 from previous years because either I was the most beneficent Top 10 czar in the history of czars and the Top 10 list was perfect or, and this is the more likely reason of these two, our now nearly 2-year-old comment policy (here and here) has driven away all the rancorous and debating types [ed. note, I don’t mean to suggest that is a good thing.  There are pluses and minuses to the current policy].  What we will probably have is some continuing debate about our comments’ policy now that it will start the terrible twos . . . or maybe not.  Either way, welcome to 2013, lucky #7 for this little blog that could.

For those that missed it, here is a pdf of the entire Top 10. Thanks to OFL and Gene for putting it together.

The word “politicization” sounds pejorative.  Merriam-Webster gives us this definition of “politicize”: “to give a political tone or character to.”  But our Constitution gives the authority to regulate the land and naval forces to Congress — a body comprised of (gasp) highly successful politicians.  Politicians are supposed to control the military justice system, subject to the system of checks and balances that the Constitution’s framers adopted to promote sound decision making.  And while there is plenty of room for debate over the optimal response to sexual assaults in the military, no one can seriously doubt that it is a real problem.

But politics shouldn’t affect the outcome of particular cases.  In the Anglo-American legal tradition, that’s the antithesis of justice, which is to be rendered by neutral, dispassionate actors.  Themis’s blindfold is supposed to prevent her from seeing political pressures, among other potentially distorting considerations.

With those dueling considerations in mind, let’s turn to our number one military justice story of the year:  the politicization of the military’s response to sexual assaults.

In January 2012, the film The Invisible War debuted at the Sundance Film Festival.  We’ve discussed the film at length on this blog (see, e.g.here, here, and here).  I’ve been critical of the film, but I hope even its admirers would admit that it doesn’t take a journalistic approach to the issue of sexual assault in the military.  Rather, it presents information to advance the thesis that the military (including the military justice system) fundamentally mishandles sexual assaults in the military and that one solution is to take the power to deal with sexual assaults away from military commanders.  The film ignores any evidence inconsistent with its thesis.

Read more »

As I mentioned last night, #3 overlaps with #9 on this year’s list and has previously appeared on our end of the year retrospective. Way back in 2010 we speculated that:

It is difficult to imagine how this case will not become the next capital court-martial, which will also raise all of the old issues with capital cases in the military–inadequate funding, inexperienced counsel (though Maj. Hasan currently has experienced civilian counsel and the TC is very experienced), and general views on the death penalty in America. Me thinks this isn’t the last Top 10 list that will feature this story.

That year we made the Ft. Hood shootings the #1 military justice story of 2010. At the time we also probably should have warned everyone that it would take more than two years to even get the case into a courtroom.

What we couldn’t have planned for was a nearly six month delay in the case while many fine jurists debated the length of MAJ Hasan’s facial hair. What began as a request to depart from grooming standards, and finally resulted in a CAAF opinion that dismissed the military judge for conflict of interest reasons, wound up right where it started, but with a new military judge.  The new judge, COL Tara Osborn, ruled that MAJ Hasan can attend trial, if he wishes, with his beard.

Aside from Beard-gate, actual progress was being made in the court-martial, including potential members questionnaires and discussion of motions regarding pre-trial publicity and MAJ Hasan’s ability to get a fair trial and fair treatment from the convening authority.  But, alas, Beard-gate consumed the better part of the last half of 2012 and now the trial looks to be set for . . . some time after mid-March according to the Ft. Hood docket.

Will there be more fascinating discussion of grooming standards at trial?  Probably.  Will 2013 finally see a trial on charges for the most notorious shooting of fellow servicemembers in the collective conscience of our nation?  Hopefully.  This is a military capital case so rushing into this thing isn’t necessary, though a little forward progress would be nice.  I mean this was the same year that two capital courts-martial became non-capital cases after successful appeals and primarily because of rulings that always struck me as expedient but not particularly wise (though I am a tad biased).  As with #3, I see this one appearing at least one more time on our Top 10 list, though that’s not exactly going out on a limb in this case.

Numbers 2 and 3 on our list have multiple things in common, including overlap with both #9 on this year’s list and being on previous year’s lists.  And while the Kabul Klipper thought the Manning case wasn’t news last year (though I did), it was certainly this year.  To recap:

So a big news year . . . oh wait, I almost forgot, stuff actually happened in his court-martial too!!!

It has been a busy year for PFC Manning.  And with a trial date set for mid-March (so says LA Times, here), I would not be surprised if the case ends up on another Top 10 list next year.  Stay tuned, the next scheduled session is an Art. 39a session on Jan. 8, 2013 at Ft. Meade.  Maybe we’ll find out the result of the unlawful pre-trial confinement motion, which I think could be an interesting legal decision rather than just a media spectacle.

Our #4 military justice story of 2012 takes us to a darker side of military justice. Mental health issues, particularly suicide and post-traumatic stress disorder, played a prominent role in the major military justice topics of this past year. Here are the wavetops:

First, in April, a petition for certiorari was filed in Miranda v. United States, No. 11-1237, on the following question:

Are post-traumatic stress disorder and bi-polar disorder substantial questions that a military judge must consider before accepting a servicemember’s guilty plea, when those disorders may have contributed to the charged misconduct?

The petition drew two amicus briefs, from the National Institute of Military Justice and from the National Veterans Foundation, but the Supreme Court denied the petition in May. After the denial, the case was profiled in the New York Times in a piece written by a former Marine judge advocate.

Next, in August, the DoD’s General Counsel directed the Joint Service Committee on Military Justice to consider amendments to the Manual for Courts-Martial to address suicide and attempted suicide in the context of the offenses of malingering in violation of Article 115, and self-injury without intent to avoid service in violation of Article 134.

Then, in November, CAAF heard oral argument in United States v. Caldwell, No. 12-0353/MC, on the following issue:

Whether, as a matter of law, a bona fide suicide attempt is punishable as self-injury under Article 134.

During the oral argument, Pvt Caldwell’s counsel argued: “If [Caldwell] had succeeded, like 3,000 service members have in the past decade, he would have been treated like his service was honorable, his family would have received a letter of condolence from the president and his death would have been considered in the line of duty. Because he failed, he was prosecuted.”

And finally, two ongoing capital courts-martial involve significant mental health issues: The prosecution of SSGT Bales for the March shooting deaths of 17 Afghan civilians involves an “unspecified mental disorder,” and the prosecution of SGT Russell for the 2009 shooting deaths of five servicemembers at a combat stress center at Camp Liberty near Baghdad involves significant litigation of his ongoing mental health treatment. Additionally, while mental health issues haven’t yet impacted the capital court-martial prosecution of  MAJ Hasan for the 2009 shooting attack at Fort Hood, it’s a fair assumption that they will.

Odds are that the aperture on this issue will only broaden in the new year. We’ll keep watching.

And for any readers who feel like you need help, it’s out there.

We may have to start treating it as un-newsworthy that senior military officers are getting into high-profile legal trouble as this story makes our Top 10 list again.  Last year we called #7 on our list “DoN Leadership Challenges (XO Movie Night).”  This year, all the services get to share in the glory.  It is hard to even list all of the cases this year, but here are a few of the notable ones:

  • BGEN Jeffrey Sinclair – His unforgettable charges include forcible sodomy and a host of other charges including violation of a direct order to stay away from the woman he allegedly assaulted.  Coverage here (referral), here (Art. 32), and here (initial allegations).
  • General Ward – The AFRICOM commander was reported to have misused his government travel card and committed other offenses involving misuse of his position and government money.  SecDef ultimately retired him as a three-star lieutenant general and forced him to repay the government $82,000 (see Army Times here, sadly we never covered General Ward’s case).
  • Removals for cause galore – Rear Adm. Charles M. Gaouette (STENNIS BatGru Commander, here) headlined the group of Navy COs and Commanders removed for cause.  Stripes even started an honor roll of the Navy commanders relieved in 2012, here, which as of Dec. 13, 2012 listed 25 DoN COs relieved of their duties. 
  • And others that were criticized but not punished – E.g. Commander, Missile Defense Agency (leadership by “blowtorch and pliers,” here and here). [Updated link, h/t BP]

And, to cap it all, the most famous reindeer of them all gets busted for an extra-martial affair, albeit after retiring from service (see Petraeus announcement here).  And while General (Ret.) Petraeus is unlikely to face court-martial, see here, his mistress’ emails ensnared Marine General John Allen in the mess and led to investigation of his emails, here.

All this led the Pentagon to review the standards it has for senior officers, here, who can hopefully clean up their act for next year.  SInce we are in the news business, we sort of hope that New Year’s resolution gets broken so we can report on the carnage next year.

The Commissions continue to be news-worthy and rate a position in our Top Ten list. If for no other reason than they exist and continue to draw a large number of judge advocates as advisors to the Convening Authority, as prosecutors and defense counsel, and as judges. This year saw several significant items involving the Commissions.

Many will remember Matt Diaz, a former Navy Lieutenant Commander accused of mishandling classified information by sending information to a journalist. This fall, he lost his fight for his law license before the Kansas Supreme Court. See the order here.

In United States v. Hamdan, the D.C. Circuit Court of Appeals vacated Hamdan’s conviction for material support of terrorism. The case was the first post-trial appeal that the Court of Military Commission Review had completed. See our coverage here.

The 9/11 Conspirators cases and the Al Nashiri USS COLE bomber case continue to march along. The motions hearings have covered classification reviews, defense victim-witness liaisons, transcription of 802 conferences, and the judge’s stock market losses. Several hearings have taken place without the accused; Judge Pohl ruling that the accused’s right to be present can be waived. One interesting issue that was unresolved this year was whether the procedures to screen detainees’ mail interfered with attorney-client communication. In September, the government lost a related attempt to impose restrictions on habeas counsels’ access to detainees. See No Man’s coverage on Judge Lamberth’s decision here. Just over a week ago, DOJ filed an unopposed motion to voluntarily dismiss its appeal of Judge Lamberth’s order. See coverage here.

NIMJBlog-CAAFlog’s coverage of the Commissions was greatly enhanced this year by volunteers who observed the proceedings. Keiran Doyle covered hearings in mid-October (Here, here, here, and here) and Professor David Glazier covered the arraignments of KSM and the 9/11 Conspirators (Here and here).

The Commissions march on and with them many judge advocates. And I predict that they will be on our Top Ten military justice stories of 2013 as well. Either because they have ended or simply because they continue to march on.

 

This case presents important questions concerning allocation of the judicial power of the United States, between Article III courts and Article I courts-martial, to try civilians for criminal offenses. Mr. Ali is the first, and only, full-fledged civilian to be subjected to trial by court-martial by the United States since at least 1970.

So begins the listing of the reasons the writ should be granted in the Petition for a Writ of Certiorari in the case of Ali v. United States. Alaa Mohammad Ali, a dual Canadian-Iraqi national accompanying U.S. forces in Iraq as a contract linguist in 2008, was convicted in June of that year by a military judge sitting as a general court-martial, pursuant to his pleas in accordance with a pretrial agreement, of making a false official statement, wrongful appropriation, and wrongfully endeavoring to impede an investigation, in violation of Articles 107, 121, and 134, UCMJ. He was sentenced to confinement for five months, but pursuant to the pretrial agreement only a sentence of time served (115 days) was approved by the convening authority. Throughout this experience, Mr. Ali was a “full-fledged civilian” whose prosecution was based on the provision of Article 2, UCMJ, that extends jurisdiction to:

In time of declared war or a contingency operation, persons serving with or accompanying an armed force in the field.

Article 2(a)(10). Similar extensions to persons “serving with” the armed forces long-predate the UCMJ. The British Articles of War of 1765 and the American Articles of War of 1775 included similar language. But prior to 2006, Article 2(a)(10) applied only “in time of war,” and caselaw interpreted this to require a formally declared war. Congress then struck out “war” following “In time of” and inserted “declared war or a contingency operation” (Pub.L. 109-364, § 552). “Unfortunately there is virtually no legislative history in the Congressional Record that explains the congressional intent for including the amended language.” United States v. Ali, 71 M.J. 256, 262 n.9 (C.A.A.F. 2012).

But the lack of congressional explanation didn’t deter the Army from commencing the general court-martial prosecution of Mr. Ali, nor the Judge Advocate General of the Army from referring the case to the Army Court of Criminal Appeals for review under Article 69, UCMJ, nor the ACCA from affirming the conviction, nor CAAF from granting review and itself affirming the conviction. Rather, from the beginning this case looked like a deliberate effort to test the new language of Article 2: The Army could have fired Mr. Ali, but chose to prosecute him instead (for relatively-minor offenses); the case was referred to a general court-martial, guaranteeing automatic review by the JAG under Article 69(a) (who could then forward the case to the ACCA under Article 69(d)); the military judge denied Mr. Ali’s motion to dismiss on jurisdictional grounds; both the ACCA and CAAF denied trial-level petitions for extraordinary relief; and the press was involved from the beginning.

At the end of that history is Judge Erdmann’s narrowly-tailored majority opinion. He relied on the absence of an Article III alternative to court-martial prosecution of Mr. Ali (as the Military Extraterritorial Jurisdiction Act (18 U.S.C. §§ 3261-3267) does not extend to citizens of the host country), and he did “not reach the question of the constitutionality of court-martial jurisdiction over a noncitizen who is not also a host-country national.” Ali, 71 M.J. at 207 n.28. He also found that Article 2(a)(10) was not unconstitutional as-applied to Mr. Ali, particularly because “whatever [constitutional] rights [Mr. Ali] had were met through the court-martial process.” Ali, 71 M.J. at 268.

Unsurprisingly, these decisions are at the heart of the petition for certiorari, and as settled as the constitutionality of trial by court-martial for a civilian might be, it could soon become very unsettled.

In the aftermath of the trial, Mr. Ali’s case made #2 on our Top 10 list for 2008. But two years later the debate over whether the military justice system can function in a combat environment (at all) took the #1 slot on our Top 10 list for 2010. Now those questions combine, as the case of Mr. Ali returns as the #7 military justice story of 2012, and as we await the input – if any – of the Supreme Court.

On the third day of this list, my CAAFlog gave to me, a Partington in D.D.C. 

Just kidding.  The case of Partington v. Houck, 840 F.Supp.2d 236 (D.D.C. 2012), currently pending decision by the D.C. Circuit, didn’t make our top-10 list.  But I couldn’t resist that little seasonal ditty.  On to the real number 8:

On the third day of this list, my CAAFlog gave to me, a bad year for the trial judiciary.

2012 certainly saw some triumphant moments for the military trial judiciary — probably none brighter than Navy-Marine Corps Trial Judiciary Chief Judge Daugherty’s ruling that the Commandant of the Marine Corps had made remarks creating the appearance of unlawful command influence, which will be discussed later in the top-10 list. But the military trial judiciary also experienced some setbacks this year.

One major setback for a military judge was self-inflicted.

Read more »

One role of the annual top-10 list is to look back over the year and connect the dots.  Sometimes a trend is more visible based on a 12-month retrospective than it is over the day-to-day course of the year.  Such is the case with 2012 and the military appellate courts’ robust exercise of their extraordinary writ jurisdiction.

2012 began with a writ.  On 3 January 2012 — the first day that CAAF was open for business this year — it issued a writ of habeas corpus ordering Technical Sergeant Brissette’s immediate release from confinement.  In re Brissette, 71 M.J. 91 (C.A.A.F. 2012).  TSgt Brissette had previously been convicted of a contested Article 134 offense without a terminal element.  He began to serve his sentence, which included a BCD and confinement for 13 months.  But after CAAF issued its opinion in United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011), the military judge set aside the conviction and dismissed the charges in a post-trial Article 39(a) session.  The government appealed under Article 62; TSgt Brissette remained confined due to the automatic stay of the military judge’s order that results from the filing of an Article 62 appeal.  CAAF denied a petition for extraordinary relief from TSgt Brissette challenging his confinement while AFCCA considered the Article 62 appeal.  In re Brissette, 71 M.J. 1 (C.A.A.F. 2011).  But even after AFCCA ruled for TSgt Brissette on 19 December 2011, the government refused to release him from confinement.  TSgt Brissette’s counsel initially filed a habeas petition with AFCCA on 20 December 2011.  Two days later, he filed a habeas petition with CAAF as well.  CAAF ordered the government to show cause why it shouldn’t order TSgt Brissette’s release from confinement.  Then, on 3 January 2012, CAAF did just that.

While CAAF would deny more petitions for extraordinary relief in 2012 than it would grant — and while it displayed initial reluctance to become involved in some of the cases in which it ultimately granted extraordinary relief — CAAF was willing, when necessary, to reach down to lower levels of the military justice system to make rudder adjustments while the case remained underway below.  It appears that when CAAF sees a case heading for the rocks, it’s willing to accept a party’s invitation to briefly take the conn to put the case on a safe course, then return the wheel to the lower court.  This trend is beneficial to the military justice system as a whole — it’s the proverbial ounce of prevention that spares the need for a pound of cure.  But it’s all the more remarkable given the small number of non-trailer cases that CAAF has chosen to review on direct appeal in recent years.  And it’s even more remarkable since, due to the failed Ohlson nomination, CAAF continues to function as a four-judge court.  See In re September 2012 Term of Court, 71 M.J. 392 (C.A.A.F. 2012).  While Chief Judge Baker has sometimes brought a senior judge onboard to help the court decide a pending extraordinary writ case, CAAF’s initial decision to entertain a writ requires at least 3 out of 4 votes.  TSgt Brissette isn’t the only petitioner to surmount that hurdle during 2012.

Read more »

The Parker and Walker cases are the naval justice system’s version of Dickens’ fictitious Jarndyce v. Jarndyce:  innumerable young judge advocates have entered appearances in the cases; innumerable old judge advocates have withdrawn from them.

Between the time the two senseless and tragic murders were committed and the cases’ completion of direct appeal, a judge advocate could have entered active duty and qualified for retirement.

LCpl Wade Walker and LCpl Kenneth Parker were each convicted of two premeditated murders at two separate courts-martial held at Camp Lejeune in July 1993.  Both were sentenced to death.

Both cases languished on appeal for extended periods.  And both appeals finally ended this year.  NMCCA first decided the Walker case in 2008 — 15 years after the court-martial.  United States v. Walker, 66 M.J. 721 (N-M. Ct. Crim. App. 2008).  NMCCA set aside one of the two premeditated murder convictions as well as the sentence and authorized a rehearing on both.  Neither side appealed further.  The government retried Walker on the set-aside premed murder charge and sought death a second time.  While the members reconvicted Walker of the premed murder, they adjudged a life sentence.  (Col John Baker, our very own Jason “Super” Grover, and Capt Kelly Repair litigated the rehearing brilliantly on Walker’s behalf.)  But while all of that activity was occurring in the Walker case, for various reasons the Parker case remained stalled.

Finally, on 12 April 2012, NMCCA heard oral argument in Parker.  Little more than four months later, NMCCA issued its opinion.  United States v. Parker, 71 M.J. 594 (N-M. Ct. Crim. App. 2012). Senior Judge Maksym wrote for a unanimous panel.  NMCCA not only set aside one of the two murder convictions, but did so on legal insufficiency grounds, among other bases, effectively insulating the decision from CAAF review.  NMCCA then reassessed the sentence, replacing death with confinement for life, total forfeiture of pay and allowances, reduction to E-1, and a DD.  The standard of review for reassessments would have made it difficult for the governmenr to overturn that decision by taking the case to CAAF.  Ultimately, neither side even tried.  No one moved for reconsideration en banc and there was no request for further review by CAAF.  Both sides could live with NMCCA’s outcome — literally, in the case of the defense.  The opinion seemed designed to bring the case to an end.  And both sides seemed relieved to let it.  No more judge advocates would have to litigate the military’s version of Jarndyce v. Jarndyce.

But while Parker ended with a bang, Walker finally ended with a whimper.  Walker’s life sentence upon his rehearing brought the case within NMCCA’s jurisdiction a second time.  This time, NMCCA criticized the rememdy that NMCCA itself had ordered in the initial appeal and knocked one of the premeditated murder convictions down to unpremeditated murder.  United States v. Walker, 71 M.J. 523 (C.A.A.F. 2012).  Senior Judge Carberry wrote for a unanimous panel.  Noting that the other premeditated murder conviction carried a mandatory minimum of confinement for life, NMCCA affirmed the life sentence and other punishments that the members adjudged upon retrial.

But the original prosecutors in the case hadn’t been content with two premeditated murder charges; in this capital case, they also charged the accused with, among other offenses, adultery.  That, of course, gave rise to a Fosler challenge.  So the final ruling in the military’s Jarndyce v. Jarndyce was a CAAF summary disposition setting aside two Article 134 convictions — one for adultery — in what had formerly been a capital case.  United States v. Walker, 71 M.J. 363 (C.A.A.F. 2012) (summary disposition).

Parker is also significant because it resulted in the removal of the last Marine from military death row.  When Parker left the SHU, there was no Marine under a sentence of death for the first time since 1987.  No member of the Department of the Navy has been executed since 1849 and no Marine since at 1817.  Given the pace at which capital cases proceed through the military justice system, it will likely be decades before that streak comes to an end.

NMCCA, for bringing the long-running Parker case to a close that both sides were content with, you’ve earned a spot in the top-10 military justice stories of the year.

There are high winds lashing Casa CAAFlog today, with the possibility of resulting power outages.  But if the electricity stays on and I don’t encounter unexpected demands on my time later today, this evening we’ll start our annual top-10 list of the military justice stories of the year.

This CAAFlog end o’ year tradition traces its roots to New Year’s Eve 2007, when we ran a contest to name the military justice story of the year.  JO’C won.

The next year, for reasons that remain shrouded in mystery, some of us thought it would be a good idea to come up with a whole top-10 list of military justice stories of the year.  We named the legal aftermath of the Haditha incident the 2008 military justice story of the year.

By 2010, the end o’ year top-10 list had become CAAFlog’s version of the fruitcake:  a holiday season tradition devoid of joy that persists based solely on a sense of duty.  2010’s military justice story of the year was the debate over whether the military justice system can function in a combat environment.

Last year offered a stripped-down version of the NIMJblog-CAAFlog top-10 list, with the 10 items crammed into 7 posts.  The number one military justice story of 2011 was “Sex, Crimes and UCMJ.”

This year, we plan to return to a full 10-post format (actually, a 13-post format if we count  the No Man’s call for nominations, Zack’s honorable mentions, and this post.) As Zack previously mentioned, we had a spirited debate about which stories should (and shouldn’t) make the top-10 list.  Ultimately, our Top-10 Czar — the No Man — ended the controversy by czarist decree. We plan to bring you the full results between now and sometime around New Year’s Day.

Thanks to all of our readers for your contributions and suggestions for the Top Ten Military Justice Stories of 2012. You are our first honorable mention; in particular, your more than 3,000 comments over the past year. They enlightened our discussions of military justice and provided essential context, background, debate, and humor. Thank you. With any luck, continued technological improvements to our blog will give you a louder voice in the future.

The next honorable mention is to our guest contributors this year: Lieutenant Colonel Chris Kennebeck, USA, and Lieutenant Mike Hanzel, USN. LTC Kennebeck brought us inside the Joint Service Committee on Military Justice in a three-part series (part 1, part 2, part 3) that is required reading for any military practitioner. LT Hanzel covered the oral argument before CAAF in United States v. Ali, a case that is now the subject of a petition for a writ of certiorari. Thank you gentlemen for your contributions. We look forward to bringing more new voices in the coming year.

Another honorable mention goes to the reorganization of the Marine Corps legal community. On September 29, 2011, the Marine Corps created the Defense Services Organization, in part to “ensure[] compliance with appellate court decisions concerning assignment of defense counsel and resolve[] longstanding issues regarding the provision of defense services” (MARADMIN 571/11). Effective no later than one year plus two days later, the Corps reorganized everything else. MARADMIN 416/12 announced wholesale change:

Over the past 20 years, and more acutely in this past decade of war, the legal support mission has evolved in scope, intensity, and complexity. There are now two distinct and competing legal support missions:  a garrison mission to process increasingly litigious, contested and scrutinized courts-martial and an operational mission to provide real-time, decentralized command legal advice to battlefield commanders. As reflected in references a through d, to more effectively accomplish both of these vitally important missions, the Commandant directed a reorganization of Marine Corps legal support to provide for greater levels of individual proficiency, organizational efficiency, and institutional accountability.

The months since then have been called “building an airplane while flying it.” The results are still to be determined.

Finally, an honorable mention goes to elements, terminal and otherwise. Last year, CAAF’s decision in United States v. Fosler was #2 on our top ten. But since a divided CAAF found in Fosler that an adultery specification that did not allege a terminal element failed to state an offense, the court also found in United States v. Ballan that an accused may plead guilty to such a “defective” specification, and found in United States v. Humphries that the failure to object to such a defect in a contested case does not prevent appellate relief.

And then the NMCCA found that an accused can plead guilty to a defective Article 107 specification. It also found that the government need not prove that a federal statute exists for an accused to be found guilty of an Article 134(3) offense of violating the federal statute. Finally, the AFCCA declined to apply Fosler/Humphries retroactively. And so Fosler withers on the vine: “a case with a very short lifespan.”

As for the rest of the list, we’ve been debating offline the true top ten military justice stories of 2012. A group of lawyers rarely agrees on anything, and much fell to the cutting-room floor. Of the most significant stories, competition was fierce. The debate raged. Things were said. Feelings were hurt. Intoxicating liquors were consumed. But there is time for healing in the new year; now we will count down to the #1 story. Stay tuned.

[Updated] Last Call. Drink Up! Smoke ’em if you got ’em. Etc., etc., etc.

Going to try something novel this year.  I am taking noinations for the Top Ten Military Justice Stories of 2012.  Leave comments on this post or on our Facebook page, here, with your nominations.  Much like all those reality shows, the audience votes only count for an undisclosed portion of the final rankings and we reserve the right to send you home for bad suggestions.