What a year it has been! It was particularly hard to pick the Top Ten Military Justice Stories of 2016, and this list of honorable mentions is as long as the top ten list itself.
Over the next few days we will continue an annual tradition for the ninth year, counting down the Top Ten Military Justice Stories of 2016. But before that, here are the stories that almost made the cut:
• The April 5, 2016, confirmation of John E. Sparks as a CAAF judge. A retired Marine judge advocate who served as CAAF’s commissioner for nearly 15 years, Judge Sparks replaced then-Chief Judge Baker whose term expired on July 31, 2015.
• The prosecution friendly changes to the Manual for Courts-Martial published on May 20, 2016. My post discussing these changes – including the weakening of the corroboration rule and limiting the exclusionary rule – was our most-viewed page in 2016.
• The government appeal in United States v. Henning, 75 M.J. 187 (C.A.A.F. Mar. 21, 2016) (CAAFlog case page), that unsuccessfully sought to use DNA evidence that implicated approximately 1 in 220 unrelated individuals in the general population.
• CAAF’s divided decision in United States v. Killion, 75 M.J. 209 (C.A.A.F. Apr. 19, 2016) (CAAFlog case page), holding that provoking speech must be measured by the audience that hears it.
• CAAF’s unanimous decision in United States v. Rogers, 75 M.J. 270 (C.A.A.F. May 16, 2016) (CAAFlog case page), holding that a member’s uncorrected misunderstanding about an intoxicated person’s ability to consent to sexual activity constituted bias.
• A deeply-divided CAAF’s decision in United States v. Martin, 75 M.J. 321 (C.A.A.F. Jun. 17, 2016) (CAAFlog case page), in which the majority found that defense counsel invited the erroneous admission of human lie detector testimony, but the dissenters condemned “grossly improper testimony from the victim’s husband explaining why he believed that his wife was telling the truth.”
• The rejection of an intuitive link between child enticement and possession of child pornography as sufficient to establish probable cause for a search in United States v. Hoffmann, 75 M.J. 120 (C.A.A.F. Feb. 18, 2016) (CAAFlog case page), and a similarly intuitive link in the still-pending case of United States v. Nieto, No. 16-0301/AR (CAAFlog case page).
• The rhetorical gunfight between Secretary of Defense Ash Carter and the interest group Protect Our Defenders.
• The completion of four reports by the Judicial Proceedings Panel addressing: restitution and compensation for military adult sexual assaulta; Article 120; retaliation related to sexual assault; and statistical data regarding sexual assault prosecutions.
• Network issues that plagued CAAF and the Army and Air Force CCAs. CAAF’s website was offline in May, June, and August. The Air Force CCA’s website (which is on the same server as CAAF’s site) was similarly inaccessible, and was also inaccessible in December. The Army’s military justice websites were inaccessible to the public from early February (noted here) until early May.