CAAFlog » Year in Review » Top Ten Stories of 2015

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

But in 2015 things settled down.

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

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

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

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

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

Hopefully it’s the beginning of a new trend.

Ronald Reagan said it best:

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

End of year lists are all about trends. Spotting them and commenting on them. Sometimes the wind blows to and sometimes the wind blows fro. This year, the wind of jurisdiction blew fro. That’s our Number Five story, the winds of jurisdiction.

Judge Stucky authored two decisions which highlight the trend of a narrow reading of military appellate jurisdiction.

First, in United States v. Arness, 74 M.J. 441 (2015) (CAAFlog case page), CAAF looks at a writ-appeal of an extraordinary writ in the nature of a writ of error coram nobis (which is a writ of error coram vobis, yes? My favorite writ trivia item: an appeal of a coram nobis is a coram vobis. I think the Honorable Marcus Fulton may have taught me that. Any appellate geeks out there, feel free to educate me if I’m confused, as is often the case. And if I am wrong, I also give credit, or blame, to the Klipper).

This writ involved an Air Force Lieutenant Colonel (I have a soft spot of O-5 misfits) convicted by general court-martial of UA, false official statements, and conduct unbecoming. His approved sentence was sub-jurisdictional under Article 66, UCMJ (confinement for eleven months and a reprimand).

Because the case didn’t qualify for review by AFCCA under Article 66, it was reviewed by TJAG under Article 69(a). TJAG found no errors and did not send the case to AFCCA under Article 69(d). Appellant asked TJAG to reconsider, raising legal errors (for the first time apparently?). TJAG denied reconsideration because the case was final under Article 76. (By the way, I get that this blog is called CAAFlog (Col Sullivan’s choice as I recall) and therefore is all about appellate stuff, but this article 66, 69, and 76 stuff is like really appellatey).

Appellant then filed his writ of error coram nobis at AFCCA. AFCCA decided it had jurisdiction under the All Writs Act but denied relief. Appellant appealed (coram vobis, remember?) to CAAF.

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Our number six story for 2015 is the agreement of three service courts of appeal that the Government can offer charged sex offenses as propensity evidence for other charged sex offenses in the same prosecution. In the cases of United States v. Barnes (covered here), United States v. Bass (covered here), and United States v. Maliwat (covered here), the ACCA, NMCCA and AFCCA all agreed that, provided the military judge performs the appropriate admissibility tests and provides correct instructions, the Government may use an earlier charged sex offense as propensity evidence to prove a later charged sex offense under MRE 413 .

In all three cases, the courts relied heavily on CAAF’s previous decisions in United States v. Burton, 67 M.J. 150 (C.A.A.F. 2009),  United States v. Schroder, 65 M.J. 49 (C.A.A.F. 2007), and United States v. Wright, 53 M.J. 476 (C.A.A.F. 2000).  All of these cases, to an extent, involved attempts by the Government to use charged sex offenses as propensity evidence for other charged sex offenses in the same prosecution. Wright presented a slightly different set of facts than the ones in Barnes, Bass, and Maliwat. In Wright, the appellant pleaded guilty to a housebreaking and indecent assault on one victim prior to the start of trial, but went to a contested trial on allegations of rape by another victim. After the appellant pleaded guilty to the offenses against the first victim, the Government sought to use his conviction on those offenses as propensity evidence for the remaining rape charge. Thus, in a sense, the prior sexual offense was “uncharged” for the contested findings portion of the trial. The appellant challenged the constitutionality of MRE 413 on its face and as applied. The CAAF however found that the rule was facially constitutional and that the judge had applied it in a way that did not violate due process. Specifically, the judge performed the requisite tests under MRE 401, 402 and 403 and instructed the members on the proper use of the evidence.

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Coming in at number seven on our list was the CAAF’s decision this year in United States v. Gutierrez (CAAFlog case page). This case was notable for several reasons. First, it overturned what appeared to be settled case law in the area of HIV-positive service members who failed to disclose their status to their sexual partners. Since the case of United States v. Joseph, 37 M.J. 392 (C.M.A. 1993), it was understood that a service member with HIV who failed to inform a sexual partner of his HIV status could be charged with aggravated assault. In determining that sexual intercourse with an HIV-positive person constituted a means likely to cause death or grievous bodily harm, the Joseph court found that the focus “was not the statistical probability of HIV invading the victim’s body, but rather the likelihood of the virus causing death or serious bodily harm if it invades the victim’s body.” Id. at 397. To explain this concept, the Joseph court gave the analogy of an aggravated assault by firing a weapon at someone:

If we were considering a rifle bullet instead of HIV, the question would be whether the bullet is likely to inflict death or serious bodily harm if it hits the victim, not the statistical probability of the bullet hitting the victim. The statistical probability of hitting the victim need only be “more than merely a fanciful, speculative, or remote possibility.”

Id. at 396-397.

In Gutierrez, the CAAF refined the focus the on the word “likely” in the context of HIV cases and addressed the issue of whether the proverbial “hitting the victim” was more than a remote possibility. For the sexual acts alleged in Gutierrez, the CAAF found that the risk of infection was so small that it was not more than a “remote possibility” and therefore not “likely” to produce death or grievous bodily harm. The Court discussed the expert testimony in the case which established that the risk of infection of HIV from unprotected oral sex was almost zero, that the risk of infection in protected vaginal intercourse was a “remote possibility,” and that the risk of infection in unprotected vaginal intercourse was 1 in 500, which the Court also deemed to be “not likely” to occur. Therefore, the Court found that the evidence at trial was legally insufficient to find the accused guilty of aggravated assault.

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The Army’s prosecution of Sergeant Robert Bowdrie (“Bowe”) Bergdahl (CAAFlog news page) for desertion with the intent to shirk important service and avoid hazardous duty in violation of Article 85(a)(2), and misbehavior before the enemy in violation of Article 99, is an obvious choice for this year’s Top Ten list.

In 2009 then-Private First Class Bergdahl walked away from his combat outpost in Patika Province, Afghanistan, and was subsequently captured by the Taliban and held in captivity for nearly five years. He was recovered in a May 2014 trade for five Guantanamo Bay detainees that a report by the House Armed Services Committee recently found “violated several laws.” Ten months later, in March of this year, Sergeant Bergdahl was charged with the desertion and misbehavior offenses. His case was recently referred for trial by general court-martial where he will face a maximum possible punishment of life without the possibility of parole.

These factors make Sergeant Bergdahl’s case worth of special attention, but it makes our Top Ten list because its processing through the military justice system is increasingly bizarre.

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Our #9 Military Justice Story of 2015 involves the significant steps taken this year to address the deeply flawed (and often misogynistic) view that an intoxicated person is necessarily incapable of consenting to sexual activity with another.

jakejosie

Article 120 prohibits sexual activity with a person who is incapable of consenting, but the UCMJ does not define that term. However, interpreting the prior version of the statute (which addressed a person who is substantially incapacitated), CAAF held that “if an accused proves that the victim consented, he has necessarily proven that the victim had the capacity to consent.” United States v. Prather, 69 M.J. 338, 343 (C.A.A.F. 2011).

Prather was a case involving a male accused, a female victim, and a night of drinking, and CAAF’s declaration of the seemingly obvious – that a person who does consent necessarily can consent – was just part of the court’s conclusion that the statute included an impermissible burden shift to an accused (Congress rewrote the statute soon afterward).

Today, the rewritten (2012) version of Article 120 defines consent, beginning with the explanation that: “The term ‘consent’ means a freely given agreement to the conduct at issue by a competent person.” Article 120(g)(8)(A) (2012). This definition is nearly identical to the one in the prior (2006) version, which stated that “the term ‘consent’ means words or overt acts indicating a freely given agreement to the sexual conduct at issue by a competent person.” Article 120(t)(14) (2006). But this language also requires judicial interpretation, as the UCMJ does not define the term competent person, enabling prosecutors to argue that an intoxicated person is not a competent person (and is therefore necessarily incapable of consenting). Such an argument functionally deprives an accused of the defenses of consent and mistake of fact as to consent.

There are some who believe that an intoxicated person cannot be a competent person for the purposes of consenting to sexual activity. Put differently, there are some people who believe that someone who is intoxicated cannot consent to sex. Those people are wrong. Drunk people can and do consent to things all the time, and they are routinely held responsible for their decisions and actions while intoxicated (DUI immediately comes to mind, but there are plenty of other examples in our system where voluntary intoxication is rarely a defense).

Two decisions of the Army CCA in 2014 addressed the meaning of a competent person in the context of consent to sexual activity. First, in January, the Army CCA explained that “competence, in this context, is a legal term of art.” United States v. Long, 73 M.J. 541, 545 (A. Ct. Crim. App. 2014) (discussed here). Then, in November, the CCA elaborated that consent is correctly defined “in terms of a competent ‘person’ and not a ‘decision.'” United States v. Brown, No. 20130177, slip op. at 5 (A. Ct. Crim. App. Nov. 21, 2014) (discussed here). This person/decision distinction is important: the law recognizes objective factors that make a person incompetent (age, infirmity, disability), while a decision is merely subjectively good or bad.

But it was the the July 2015 decision of the Navy-Marine Corps CCA in United States v. Pease, __ M.J. __, No. 201400165 (N-M. Ct. Crim. App. Jul. 14, 2015) (discussed here), cert. for rev. filed, __ M.J. __ (C.A.A.F. Sep. 14, 2015) (discussed here), that won competency to consent a spot on our Top Ten list.

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A confession is the only form of proof that requires corroboration. Unlike eyewitness identification, circumstantial evidence, forensics, or the inconsistent testimony of a biased and prejudiced witness, an accused cannot be convicted on his confession alone. Put simply, a confession is the least reliable form of proof known to the law. “In the United States, our concept of justice that finds no man guilty until proven has led our state and federal courts generally to refuse conviction on testimony concerning confessions of the accused not made by him at the trial of his case.” Opper v. United States, 348 U.S. 84, 89 (1954).

Military law has long distrusted confessions, recognizing the coercive power of military authority. The warning requirement of Article 31(b) – our #3 Military Justice Story of 2014 – predated the Supreme Court’s requirement for a similar warning in civilian contexts in Miranda v. Arizona, 384 U.S. 436 (1966), and was cited by Chief Justice Warren as a factor supporting the Court’s decision in that case. Further, the Manual for Courts-Martial has long included a positive requirement for corroboration of a confession, with such a requirement appearing in Manuals published long before enactment of the UCMJ. Today, the Manual commands:

An admission or a confession of the accused may be considered as evidence against the accused on the question of guilt or innocence only if independent evidence, either direct or circumstantial, has been admitted into evidence that corroborates the essential facts admitted to justify sufficiently an inference of their truth.

Military Rule of Evidence 304(c)(1).

This Rule suffered from apparent toothlessness, as CAAF’s precedent held that “the corroborating evidence must raise only an inference of truth as to the essential facts admitted.” United States v. Cottrill, 45 M.J. 485, 489 (C.A.A.F. 1997). However, in 2015 CAAF breathed new life into the corroboration requirement, explaining that “if sufficient corroborating evidence of an essential fact is not provided, then the uncorroborated fact is not admissible and the military judge must excise it from the confession.” United States v. Adams, 74 M.J. 137, __ (C.A.A.F. 2015) (emphases added) (CAAFlog case page). As a result, the court in Adams reversed the appellant’s conviction of larceny that was based upon his written confession to military investigators that he stole cocaine from a drug dealer, using a S&W handgun, near a local WalMart, because “virtually none of the [essential] facts” were corroborated. Adams, 74 M.J. at __.

CAAF’s decision in Adams has the potential to significantly impact military trial practice, but that isn’t the only reason confessions earned a spot on our Top Ten list. After CAAF acted, so did Congress.

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