CAAFlog » Year in Review » Top Ten Stories of 2019

The prosecution of Navy Special Operations Chief Edward Gallagher began in September 2018, when Gallagher was charged with numerous offenses including premeditated murder, aggravated assault, assault with a dangerous weapon, wrongful use and possession of controlled substances, and various violations of Article 134. Gallagher was also placed into pretrial confinement based on accusations that he was intimidating witnesses.

The charges against Gallagher were serious, and the Navy acted like it was taking the case seriously. An experienced judge advocate – Navy Commander Chris Czaplak – was assigned to prosecute the case, and he was quoted by the New York Times in November, 2018, as taking a hard line approach:

In the hearing Thursday, a Navy prosecutor, Chris Czaplak, said the chief had done damage beyond murder.

“Does the public still believe we are the good guys, because Chief Gallagher decided to act like the monster the terrorists accuse us of being?” he said. “He handed ISIS propaganda manna from heaven. His actions are everything ISIS says we are.”

Those tables would turn dramatically before the case was over.

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In 2018, CAAF held that the statute of limitations for the offense of rape of an adult occurring between 1986 and 2006 was just five years. That decision, in United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page) (the #3 Military Justice Story of 2018), was an unexpected change to what was previously well-settled law.

CAAF revisited the topic in 2019, applying its decision in Mangahas (which involved an ongoing prosecution of an allegation dating to 1997) to three cases with convictions that violated the newly-clarified statute of limitations. The cases were United States v. Briggs, 78 M.J. 289 (C.A.A.F. Feb. 22, 2019) (CAAFlog case page); United States v. Collins, 78 M.J. 415 (C.A.A.F. Mar. 12, 2019) (sum. disp.) (CAAFlog case page); and United States v. Daniels, 79 M.J. 150 (C.A.A.F. Jul. 22, 2019) (sum. disp.) (noted here). CAAF heard oral argument and issued an authored opinion in only one of the cases (Briggs); it summarily applied that decision to the other two cases.

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The #3 Military Justice Story of 2019 is President Trump’s executive actions in military cases.

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Article 37 prohibits unlawfully influencing a court-martial and other actors within the military justice system. Enacted in 1950 and amended in 1968, the statute was unchanged for more than 50 years.

On December 20, 2019, President Trump signed the National Defense Authorization Act for Fiscal Year 2020. Section 531 of the legislation significantly rewrites Article 37. That action is the #4 Military Justice Story of 2019.

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Four years ago, in United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. 2015) (CAAFlog case page) (the #7 Military Justice Story of 2015), CAAF reversed an HIV-positive servicemember’s convictions of aggravated assault that were based on sexual activity without disclosure of HIV-positive status, because the court found that the chances of transmission of the virus were too remote to constitute a means likely to cause death or grievous bodily harm. But CAAF affirmed convictions of the lesser-included offense of assault consummated by a battery, reasoning that even though the participants had consented to the sexual acts, their consent was not “meaningful[ly] informed” because of their ignorance Gutierrez’s HIV-positive status. 74 M.J. at 68.

CAAF’s decision was puzzling in a number of ways, including the fact that consent was not in issue in Gutierrez’s trial (because a person cannot consent to an act likely to cause death or grievous bodily harm as a matter of law) and the fact that the requirement for meaningful informed consent was drawn from Canadian law, with then-Chief Judge Baker writing:

The offense of assault consummated by battery requires that the accused “did bodily harm.” MCM pt. IV, para. 54.b.(2). “‘Bodily harm’ means any offensive touching of another, however slight.” MCM pt. IV, para. 54.c.(1)(a). Here, Appellant’s conduct included an offensive touching to which his sexual partners did not provide meaningful informed consent. See R. v. Cuerrier, [1998] 2 S.C.R. 371, 372 (Can.) (“Without disclosure of HIV status there cannot be a true consent.”). He is therefore guilty of assault consummated by battery, and we affirm that offense as a lesser included offense of aggravated assault.

74 M.J. at 68. Yet while CAAF left open the possibility of a conviction of aggravated assault for having sex while HIV-positive (ruling only that the risk of transmission in Gutierrez’s case was too remote), its finding that the failure to disclose HIV-positive status forecloses any possibility of consent to the sexual activity created a different possibility: prosecution of such conduct as a sexual assault.

In 2019 that possibility became reality, as CAAF affirmed convictions of sexual assault by causing bodily harm (in the form of a non-consensual sexual act) that were based on the failure to disclose HIV-positive status to sexual partners, in United States v. Forbes, 78 M.J. 279 (C.A.A.F. Feb. 7, 2019) (CAAFlog case page).

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CAAF grants review in a tiny fraction of the cases in which it receives a petition for review. 11.9% of cases, to be precise, in fiscal year 2019 (52 grants in 438 petitions).

The #6 Military Justice Story of 2019 isn’t one of the grants. It’s one of the denials.

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In United States v. Voorhees, 79 M.J. 5 (C.A.A.F. Jun. 27, 2019) (CAAFlog case page), a unanimous CAAF held that the military prosecutor’s personal attacks on defense counsel, personal attacks on the accused, expressions of personal opinion, bolstering, and vouching, amounted to grievous error, but that the error was nevertheless harmless.

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As a general rule, law enforcement must obtain a search warrant – or, in the military, a search authorization – prior to conducting a search, and the warrant must be based on probable cause. If that doesn’t happen, the remedy is exclusion of any evidence discovered.

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The #9 Military Justice Story of 2019 is CAAF’s holding in United States v. Kohlbek, 78 M.J. 326 (C.A.A.F. Feb. 25, 2019) (CAAFlog case page).

The Military Rules of Evidence share a majority of provisions with the Federal Rules of Evidence, but the two sets of rules are not identical. In particular, the military rules contain provisions that are not in the federal rules. One of those is Mil. R. Evid. 707, which prohibits admission of any evidence related to a polygraph examination:

Rule 707. Polygraph examinations

(a) Prohibitions. Notwithstanding any other provision of law, the result of a polygraph examination, the polygraph examiner’s opinion, or any reference to an offer to take, failure to take, or taking of a polygraph examination is not admissible.

(b) Statements Made During a Polygraph Examination. This rule does not prohibit admission of an otherwise admissible statement made during a polygraph examination.

The rule survived scrutiny by the Supreme Court two decades ago, in United States v. Scheffer, 523 U.S. 303 (1998). CAAF had held that the rule was unconstitutional as applied to an accused who took the stand, denied committing the offense, was accused by the prosecution of lying, and wanted to use a favorable polygraph result to support his own credibility. The Supreme Court reversed CAAF’s decision, holding that the rule served a valid purpose and does not unconstitutionally limit an accused’s right to present a defense because the rule “did not preclude [Scheffer] from introducing any factual evidence,” rather it “merely [prohibited] introducing expert opinion testimony to bolster his own credibility.” 523 U.S. 317.

CAAF revisited the rule in Kohlbek, where the accused wanted to use the fact of a polygraph examination (and the circumstances surrounding its administration) as evidence to support his claim that his confession was false.

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It’s important to avoid reading too much into statistics. After all, “there are three kinds of lies: lies, damned lies, and statistics.” Proctor & Gamble Mfg. Co. v. Fisher, 449 U.S. 1115, 1118 (1981) (Rehnquist, J., dissenting from denial of certiorari).

But two sets of data released in 2019 are notable enough to be the #10 Military Justice Story of 2019: CAAF’s shrinking docket and a growing percentage of acquittals in courts-martial (especially acquittals for sex offenses).

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Soon we will count down the top ten military justice stories of the year.

Please nominate the stories you think belong on the list, either in a comment to this post or by email to