Comments for CAAFlog

Comment on Naked pictures of children are not necessarily “child pornography” by Cheap Seats

Cheap Seats — Tue, 21 May 2013 01:04:14 +0000

Or, they can charge possession of the storage media containing at least one image of CP, and that part of the problem is gone.

Comment on CAAF grant on issue exploring boundaries of service discrediting conduct by Zachary Spilman

Zachary Spilman — Mon, 20 May 2013 22:38:39 +0000

Issue II, meet United States v. Caldwell:

Appellant’s speculation does not establish that his conduct had a tendency to bring the service into disrepute or to lower it in the public esteem. To the contrary, this statement indicates that in Appellant’s view it was not his actions that would cause discredit, but the failure of his unit’s leaders that would have a tendency to cause discredit. If this alone were discrediting, then it would appear to be discrediting for the whistleblower to disclose fraud or the victim of an offense to report a crime by a member of the military.

Two doesn't make a pattern (unless we're talking about misconduct in the Marine Corps), but is it possible that CAAF is about to start taking a harder look at those now-essential terminal elements of Article 134?

Comment on CAAF grant on issue exploring boundaries of service discrediting conduct by stewie

stewie — Mon, 20 May 2013 22:07:11 +0000

Interesting. I would agree that you should have to prove something more than “tendency” when dealing with something explicitly set out by the Supremes as being constitutional under the 1st Amendment.

Comment on Chairman of JCS and Air Force Chief of Staff signal openess to removing prosecutorial discretion in sex assault cases from commanders [corrected] by k fischer

k fischer — Mon, 20 May 2013 21:11:46 +0000

CS,

Seems that the Government won’t be able to add on a sex offense with a marijuana offense because the Sex Prosecutor won’t have jurisdiction to try the weed violation. That is somewhat comforting knowing that you can put your client on the stand without having to worry about the panel hearing that he’s a pothtead.

So, this bifurcated system should work really well, until Brigade commander finds out his super stud is being targeted by the Sex Police because of allegations made by a woman with severe psychological issues. All Super stud has to do is be disrespectful to Brigade commander who quickly separates him for a serious act of misconduct before sex charges can be filed.

I’m wondering why this bill does not require the Article 32 hearing officer to be a Judge Advocate. If line officers are so lack the legal acumen to make a just recommendation, then why waste everyone’s time wtih a recommendation that will be discarged by the O-6 or above with significant legal experience?

Ultimately, I see Judge Advocates becoming very hated in this statutory scheme. There is nothing worse for morale on a post then when TDS is more beloved than the TC’s. I can see the Commander yelling at his TC, now. ”You’re wasting time and money trying my super stud sniper for some BS rape charge, but you don’t have time to trouble yourself with the heroin addict in my barracks!!”

Comment on Opinion Analysis: United States v. Solomon, No. 13-0025/MC by ObservationPost

ObservationPost — Mon, 20 May 2013 20:43:34 +0000

How about this for a requested Defense witness:
Military Judge (from first trial). Synopsis of expected testimony? “I was in court for the entire trial of Solomon and I can vouch that he was found not guilty of the sexual assaults alleged.”

Comment on Limiting clemency and discretion could be just the beginning by k fischer

k fischer — Mon, 20 May 2013 19:02:41 +0000

Charlie,

Ever thought about writing a book? Kind of a practice manual of sorts. For instance, I used your cross examination script of a Drug Lab Expert that you provided a CLE one time in a separation board for an E7 accused of using cocaine. Worked like a charm; the board found misconduct, but retained him based on residual doubt.

I bet you have a folder on your desktop full of stuff like that: Direct and cross scripts, trial transcripts, closing arguments, trial strategies, marketing strategies, Motions, etc. that would be very helpful to a military practitioner defending Servicemembers against sexual assault, war crimes, drug offenses.

’Twould be a shame to let all that knowledge go to waste.

Comment on Opinion Analysis: United States v. Solomon, No. 13-0025/MC by k fischer

k fischer — Mon, 20 May 2013 18:54:03 +0000

CL,

Ecstacy does strange things to a man…..

Comment on Opinion Analysis: United States v. Solomon, No. 13-0025/MC by John O'Connor

John O'Connor — Mon, 20 May 2013 18:45:08 +0000

I know nothing abpout this case, but I will reiterate O’Connor’s Law:
“Retrying courts-martial years after the fact is difficult and expensive. Therefore, a trial counsel should not try to get in evidence or make argument that creates appellate risk in an easy case. Know when you have enough evidence and don’t do anything dicey once you have enough evidence.”

Comment on Limiting clemency and discretion could be just the beginning by Charlie Gittins

Charlie Gittins — Mon, 20 May 2013 18:00:24 +0000

KF: I gave up MJ and found a nice corporate lawyer job where I get to chase, investigate and help convict bad guys stealing from my company. Much less stress than what will be coming for defense counsel in the military justice system. You are totally right about the VAWA organizations getting ready to feed at the slop chute of federal dollars. It will be “justice” part of military justice that is damaged in the end
.

Comment on Opinion Analysis: United States v. Solomon, No. 13-0025/MC by Contract Lawyer

Contract Lawyer — Mon, 20 May 2013 17:09:47 +0000

He wins his appeal, but how many times did he “drop the soap” during his three years in? Sounds like he wanted to drop the soap. Will he get three years of back pay

Comment on Limiting clemency and discretion could be just the beginning by k fischer

k fischer — Mon, 20 May 2013 14:36:41 +0000

I didn't have to put my coffee down, as I'm not the least bit surprised by the SG's comments. I see the connection between what is happening with Colleges and the "Dear Colleague" letter and the future application to the Armed Services. Federal funding for the Violence Against Women Act creates over a half-billion dollars in 2010, and between 6-10 million dollars each year for campus funding. Just think what VAWA organizations can do when they tap into the DoD budget. From looking at what these groups are doing in the collegic environment, it seems likely that these organizations perceive the burden of proof as the problem in investigating and prosecuting sexual offenses. What is clear is that these organizations have targeted the military and a tsunami of pro-accuser federal dollars is coming to combat the problem. The options for stakeholders in the military legal community are: (1) duck dive the swell and move onto some other area of the law that is less emotionally draining; (2) stand in front of the tsunami and attempt to fight the legislative changes that are coming; or (3) recognize the coming swell, paddle outside, catch the wave, and ride it for all its worth.

Comment on Opinion Analysis: United States v. Solomon, No. 13-0025/MC by k fischer

k fischer — Mon, 20 May 2013 13:38:03 +0000

Zach,

Great analysis, especially the second to the last paragraph. I’ve sometimes wondered why Trial Counsel create appellate issues on cases that seem slam dunk. If you have a case that Forrest Gump could win, then why screw up the case by getting prejudicial and contradictory evidence admitted? This prosecutor’s trial strategy seemed awfully short sighted, particularly when you have the Marine pleading guilty to wrongful use of Ecstacy.

That being said, Appellant appeared to be a creepy bad dude who hopefully has learned a little from the 3 years he spent in prison.

Comment on In the rocky legal terrain by Ama Goste

Ama Goste — Mon, 20 May 2013 12:51:03 +0000

While Thacker doesn’t have military experience herself, her hubby has an incredible wealth of MJ and military civil litigation knowledge he could share with her.

Comment on Limiting clemency and discretion could be just the beginning by Paleo Living

Paleo Living — Mon, 20 May 2013 06:12:13 +0000

1) How is Mr. Dreeben justifying that his hypothetical kangaroo court is going to somehow preserve the integrity of the military justice system and preserve confidence in the military? For starters, since the issue of the day / week / year is sexual assault, are these civil proceedings really going to represent justice to a rape victim? Will the friends and family of that victim have confidence in the military because of a civil proceeding years after the fact? Oh, by the way, what happens when these alleged offenders allegedly do something in year 3 of a 20 year career, or otherwise leave the military after the statute of limitations expires? What justice is to be done then? 2) Aside from the fact that such an idea is more like the Salem Witch Trials than a prudent system of justice, what about the issue of equal protection such that those is similar situations receive the same treatment? What if Joe Infantry goes out assaults Bob Supply at a bar, breaks his face apart and Bob leaves the military. Joe isn’t punished in the military but Bob is messed up for life. Is the Government going to set up special boards to punish Joe? If Person X is raped and makes allegations and the rapist is finally thrown into this civil proceeding to rescue the sanctity and good name of the military, but Bob’s allegations fall on deaf ears, then what’s been done for Bob and what’s happened to his voice and his right to be heard, etc? Isn’t Bob just as much of a victim? All crimes produce victims and they are all unique and there are certainly some tiers of severity. But a victim of a brutal assault, or victim of an arsonist that burns down his home, they will have trauma to deal with. Do they not deserve justice too?
The other thing I surmise from Mr. Dreeben’s narrative is this: If such a plan is in the works then there are likely two reasons why: a) enactment will be used solely for votes not for justice, and b) Congress has no hope for, and no confidence in, the senior leaders of the military to work through current difficulties to make the military justice system a platform of excellence rather than a platform of endless disappointments.
If ‘b’ is at all true, then it speaks volumes for the perceived lack of integrity within the ranks and should signal to the SecDef that this is not a rough patch, it’s a crisis, a true crisis.

Comment on Limiting clemency and discretion could be just the beginning by Zachary Spilman

Zachary Spilman — Mon, 20 May 2013 00:34:53 +0000

You and me both DP.

I said "more terrifying future." I warned everyone to "put down" their coffee cups. And while I didn't explicitly say duck and cover, I think I made that point.

As much as we think our justice system is under attack now, the SG's office just used Kebodeaux to remind us that it could get much worse (assuming, as I think it's safe to do so, that Mr. Dreeben's hypothetical was appropriately vetted).

Comment on Chairman of JCS and Air Force Chief of Staff signal openess to removing prosecutorial discretion in sex assault cases from commanders [corrected] by Christopher Mathews

Christopher Mathews — Sun, 19 May 2013 22:02:09 +0000

Cap’n C: When I didn’t believe they were guilty, I didn’t take them to trial. This was on occasion a source of some friction between myself and others.

Comment on Limiting clemency and discretion could be just the beginning by Dew_Process

Dew_Process — Sun, 19 May 2013 21:54:22 +0000

ZS - I agree to a point. But, it seems to me that Congress has spoken - at least in the context of former military members via MEJA, as the indictment of former Marine, Jose Nazario demonstrated. http://en.wikipedia.org/wiki/Jose_Luis_Nazario,_Jr. Dreeben's argument appears to be advocating an ex post facto position which raises its own constitutional concerns.

Comment on Limiting clemency and discretion could be just the beginning by Zachary Spilman

Zachary Spilman — Sun, 19 May 2013 20:41:15 +0000

DP: I had the same thought when I heard the argument. But I think the Government's point goes to this language from Toth:

Fear has been expressed that if this law is not sustained discharged soldiers may escape punishment altogether for crimes they commit while in the service. But that fear is not warranted and was not shared by the Judge Advocate General of the Army who made a strong statement against passage of the law. He asked Congress to ‘confer jurisdiction upon Federal courts to try any person for an offense denounced by the (military) code if he is no longer subject thereto. This would be consistent with the fifth amendment of the Constitution.’ The Judge Advocate General went on to tell Congress that ‘If you expressly confer jurisdiction on the Federal courts to try such cases, you preserve the constitutional separation of military and civil courts, you save the military from a lot of unmerited grief, and you provide for a clean, constitutional method for disposing of such cases.’ It is conceded that it was wholly within the constitutional power of Congress to follow this suggestion and provide for federal district court trials of discharged soldiers accused of offenses committed while in the armed services. This concession is justified. There can be no valid argument, therefore, that civilian ex-servicemen must be tried by court-martial or not tried at all. If that is so it is only because Congress has not seen fit to subject them to trial in federal district courts.

U. S. ex rel. Toth v. Quarles, 350 U.S. 11, 20-21 (1955) (citations omitted) (emphasis added).

Comment on In the rocky legal terrain by Contact Lawyer

Contact Lawyer — Sun, 19 May 2013 19:49:05 +0000

Agee lost the nomination to Gilmore at a convention. I am sure you see news this weekend of how conventions in Virginia work. Agee was actually a well respected legslator. Had he got the nomination, he would have probably been elected AG of Virginia and then had about a 50/50 shot at becoming governor.

All in all, Agee was just kind of boring. As a legislator, he was very well respected in his district. He was succeeded by Morgan Griffith in the House of Delegates, who became its majority leader and is now the U.S. Rep in SW Va. He is also a conservative and not some nut.

Comment on Chairman of JCS and Air Force Chief of Staff signal openess to removing prosecutorial discretion in sex assault cases from commanders [corrected] by Contact Lawyer

Contact Lawyer — Sun, 19 May 2013 19:39:31 +0000

There is a lot of good grad course paper topics here.

Comment on Limiting clemency and discretion could be just the beginning by Dew_Process

Dew_Process — Sun, 19 May 2013 19:26:20 +0000

I don't think that you can stretch Toth that far. It was a military habeas case where after Toth was legitimately discharged, they found out he'd been involved in a murder while stationed in Korea. The AF brought Toth back to active duty for purposes of court-martialing him - he sought habeas relief alleging that the military had no in personam jurisdiction over him, which SCOTUS ultimately agreed with. It was the 3 dissenting justices in Toth which made the "Necessary and Proper" clause argument that ASG Dreeben is arguing - an argument rejected by the 6 Justice majority.

Comment on Limiting clemency and discretion could be just the beginning by Contact Lawyer

Contact Lawyer — Sun, 19 May 2013 19:22:43 +0000

An excellent way to reduce expenditures. Of course someone is going to have to set up a process to conduct these civil proceedings.

Comment on Chairman of JCS and Air Force Chief of Staff signal openess to removing prosecutorial discretion in sex assault cases from commanders [corrected] by AF CMJ

AF CMJ — Sun, 19 May 2013 15:53:56 +0000

CS -
On the 92 issue, my read is that it stems from so many of our military ‘sexual assaults’ being prosecuted as LGR violations because they are consensual relationships arising in environments (e.g. BMT at Lackland) where prohibited.
After reading the proposal, my first question is whether splitting the offenses like this makes any sense? Not saying that I support authority being taken from command, but if it’s going to be, why go half way? Our system is Byzantine enough as it is in my opinion.
Also, sound-bite comparisons are constantly made to other western militaries WRT this issue; is anyone aware of a good law review article discussing how they are set up?

Comment on Chairman of JCS and Air Force Chief of Staff signal openess to removing prosecutorial discretion in sex assault cases from commanders [corrected] by casual reader

casual reader — Sun, 19 May 2013 14:31:42 +0000

All of these are serious considerations. One added thought – by blurring the chains of command, those prosecutors already so prone will have no incentive to curb abuses of discretion. They neither know nor care about the accused and the venire.

Comment on Chairman of JCS and Air Force Chief of Staff signal openess to removing prosecutorial discretion in sex assault cases from commanders [corrected] by Cloudesley Shovell

Cloudesley Shovell — Sun, 19 May 2013 13:45:03 +0000

A few thoughts:
O-6 or higher JAG must make the decision. I don’t envision any flag or general officer having the time to review these issues. Is this a back door to the creation of more flag/general officer billets? I can see stars in the eyes of some more senior JAGs already. The proposal states that these new special prosecutors will have staffs that can be either military personnel or civilians. How jealously will the military guard against civilian involvement in this arena? The services are going to have to grow that “significant experience” to qualify officers for those O-6 and above billets somehow. I see JAGs working to ensure the special prosecutor’s staff is mostly commissioned JAGs and enlisted.

What is “significant experience” qualifying an officer for this new billet? Will that standard be the same across services, or left to the good judgment of the service JAGs/JAG detailers? The requirement that a commissioned officer be “available for detail as trial counsel” under Art. 27 is ambiguous, because anybody can be detailed as trial counsel to a special court-martial under Article 27. Perhaps Congress ought to amend that provision to clarify that said officer must be available for detail to a general court-martial under Art. 27(b), thus requiring law school or bar membership and JAG certification.

Convening authorities retain all their powers for punitive articles 83-91 and 93-117, and Art. 133. Why skip over Article 92? Is not violating or failing to obey a lawful general order one of the classic purely military offenses? I cannot conjure up any possible explanation for omitting Art. 92. Also, why is not Art. 134, at least clauses 1 and 2, included in the articles over which CAs retain authority?

If this new special prosecutor declines to order a court-martial, this proposal limits CAs to a summary court or NJP. Is the Art. 133 exception a big loophole for CAs, at least in cases involving officers? Looks like it to me. What if a CA just refers something under Art. 133 right off the bat even though the underlying offense is one that should be routed through the special prosecutor?

How does one decide whether a case must be referred to this new special prosecutor? Say a disgruntled sailor aboard a ship at sea intentionally burns a hated shipmate’s uniforms and other personal property in a trash can, destroying $610 of personal property. Simple arson under Art. 126, more than $500 of property, 5 years and a DD. A classic case where a commanding officer might want to use mast or a summary court to impose swift punishment. Yet under this proposal, said CO will have to do nothing while referring the case off to some O-6 or higher JAG somewhere who can take all the time he wants to decide how to handle the case. What if the CO decides the property is really only worth $499, thus simple arson punishable only by one year, thus under the “more than one year” threshold. Can the CO make such a factual determination to avoid referring the case through the special prosecutor? Or is that a matter to be left to service-specific regulation?

Does this create new jurisdictional issues? Suppose a commander interprets the factual allegations as a military offense and refers a case to a special court-martial. Can the accused challenge the jurisdiction of that court on the grounds that the matter should be reviewed and decided upon by one of these new special prosecutors first? What if the accused raises the issue for the first time on appeal?

This proposal significantly alters who has GCM convening authority. Even though a military commander in a command that has traditionally had GCM convening authority retains authority over Art. 83-91, 93-117, and Art. 133 offenses, he no longer has GCM convening authority. He still has to refer it to a new “Chief of Staff for Courts-Martial” or to the President, SecDef, service Secretary, or the commander of a unified or specified combatant command if he wants a case to go any higher than a special court-martial with regard to purely military offenses. I’m not sure that’s a good idea. Then again, maybe that’s how it works now as a practical matter.

Who now has authority to enter into PTAs? Does this just shift PTA authority over to the new Chief of Staff for Courts-Martial? How long before Congress flips out because one of these new special prosecutors enters into what’s viewed to be a unduly favorable PTA?

This proposal largely strips from commanders the authority to maintain good order and discipline within their command, since even minor disciplinary matters must first be referred out for review so long as there is the possibility of an offense being punishable by more than a year. Will commanders nonetheless retain responsibility and accountability even though they’ve been stripped of authority? Will the new Chief of Staff for Courts-Martial be in any way held accountable if discipline within his area of responsibility goes to pieces?

Someone else mentioned this already, but who pays now? Will these new offices get their own funding for prosecuting cases? Or is the poor commander involved still on the hook for funding cases out of his pot of money even though he’s lost authority over the process?

This proposal uses the word “victim” when it prohibits one of these new Chiefs of Staff from convening a court where the “accused or victim” is in his chain of command. Loaded word. What about “accused or complainant.”

You can try to prohibit consideration of character and military service, but that consideration is going to happen anyway. It’s human nature, whether the underlying characteristics are good or bad.

Kind regards,
CS