Included in the prohibitions is the consumption of “any alcohol,” though the “first O-6 commander in the chain of command may approve an exception to this provision for a special social event.”  Not surprisingly, the order also states that JTF-Summit personnel will not “[s]0licit prostitutes or engage in conduct which is unprofessional or unbecoming as a member of the armed forces.”  General Order #1 “is effective immediately and expires when all DOD personnel have redeployed to their home station/port.”

Note that under this order, taking communion in a church that uses only wine for the Eucharist or that uses “de-alcoholized” wine that still retains a small amount of alcohol would be a UCMJ offense.  Multi-Natuional Corps — Iraq’s General Order Number 1 had an exception for “use of alcohol for authorized religious ceremonies.”  I’m surprised this general order doesn’t include a similar religious exception.

The fatal stabbing last month of a Marine by a fellow Marine on Capitol Hill’s Barracks Row was a hate crime, the lead prosecutor in the case said in court Wednesday.

Michael Poth, 20, stabbed Philip M. Bushong, 23, after yelling a slur against homosexuals, Assistant U.S. Attorney Michael Liebman said. The stabbing occurred minutes after Poth saw Bushong and a gay male friend hug outside Molly Malone’s saloon in the 700 block of Eighth Street SE on April 21, Liebman said.

Poth, 20, was charged with second-degree murder while armed. Before a preliminary hearing in D.C. Superior Court, two uniformed Marines entered the courtroom and informed attorneys that Poth had been given an other-than-honorable discharged for his conduct before last month’s incident. Liebman said the Marines had been working on Poth’s discharge since November, when Poth tested positive for using synthetic marijuana. Poth also had verbally assaulted other soldiers and had to be restrained, Liebman said.

Additional coverage here.

[No Man addition - link to the Cert. Petition here.]

In federal court, judges have the authority to allow jurors to query witnesses, though the practice remains uncommon. In recent years, the procedure has gained traction in academic circles and has been occurring with more frequency in state courts, legal experts say.

Hhhmmm.  What justice system with extensive experience allowing lay factfinders to propose questions for witnesses isn’t covered by that summary?

And with that, oral argument season for the September 2011 term is closed, though oral argument seaasons have sometimes reopened unexpectedly during past terms.

The Army is investigating Brig. Gen. Jeffrey A. Sinclair, who has been reassigned from Afghanistan back to Fort Bragg, officials said Friday.

Earlier this month, Sinclair was removed from his job as the 82nd Airborne Division’s deputy commanding general for support in Afghanistan. He had been deputy commander since July 2010.

“This is a criminal investigation,” said Ben Abel, a Fort Bragg spokesman.

Sinclair has returned to Fort Bragg for his assignment as special assistant to the commanding general of the 18th Airborne Corps and Fort Bragg, Abel said.

Here is the General’s bio on the 82nd Airborne webpage [with updated link that I printed before it was removed].  H/t to an alert CAAFlog reader.

The Supremes didn’t announce their opinion in Williams v. Illinois today.  The Williams watch will go on hiatus the rest of the week — no more opinions are expected to be announced.  (During today’s SCOTUSblog live blogging, Tom Goldstein commented at 10:09:  “I think Williams will win.”)  Thank goodness we have CAAF arguments tomorrow and Wednesday to distract us from obsessing over Williams.

The casebook is published by Thomson Reuters’ West Law School imprint.  Here’s the publisher’s description:

This new text comprehensively covers the modern military justice system under the Uniform Code of Military Justice. Materials from every service within the Armed Forces show how the military justice system addresses all criminal offenses, ranging from minor infractions to serious offenses, such as the misconduct of soldiers at Abu Ghraib prison. The text covers the jurisdiction of courts-martial; sources of military law; military offenses and defenses; pretrial, trial, and appellate procedures; the role of judge advocates; nonjudicial punishment and other alternatives to courts-martial; special forums, such as boards of inquiry and military commissions for trying enemy belligerents; the relationship of courts-martial to state and federal courts; and much more. All chapters include policy questions about  controversial issues. The text is appropriate for all students, with or without prior military experience.

I had the pleasure of first meeting Professor Maggs many years ago when he worked at the American Enterprise Institute.  In addition to all of his other accomplishments, he’s an Army Reserve colonel and has served on the Army Court of Criminal Appeals, where he authored, among other opinions, United States v. Murphy, 67 M.J. 514 (A. Ct. Crim. App. 2008), petition denied, 67 M.J. 245 (C.A.A.F. 2009).  Dean Schenck is a retired active duty Army judge advocate with extensive service on the Army Court of Criminal Appeals as well as the Court of Military Commission Review.  Among her other degrees, she holds both an LL.M. and J.S.D. from Yale Law School.

Another Thomson Reuters military justice offering is Strategies for Military Criminal Defense, published by its Aspatore Books imprint.  Here’s the publisher’s description:

This Aspatore legal title provides perspective on the intricacies of the military justice system and how it applies to criminal trials. Expert attorneys from some of the nation’s leading law firms guide readers through the steps involved in defending servicemen and women charged with crimes. Emphasizing the unique aspects of the military environment, these authors examine the differences between military and civilian systems of justice, and divulge proven advice for preparing a comprehensive defense strategy.

The table of contents is available here.

The volume’s first chapter, Effective Defense Strategies by Charles E. Feldmann, is available here.  I will readily admit to having a bias against that author.  But I think I’m being objective when I express serious reservations about the chapter.  For example, the chapter’s opening paragraph — repeated in the “Key Takeways” section – states, “Every commander who refers charges against an accused to a court-martial has to first weigh the costs of the trial. Every cost for the trial is borne by that command and every command in today’s day and age pays particular attention to how much a prosecution and defense of a case will cost.”  That second sentence isn’t true in Air Force practice.  As in this example, the author appears to make broad pronouncements without a sufficient understanding of the various services’ unique practices.

That’s the only chapter I’ve read, so I have no insight concerning the remaining chapters, some of whose authors appear quite impressive (author list with links to bios here).

I am not aware of any other military justice developments at the Supreme Court.

This week at CAAF: CAAF will hear oral argument in four cases this week. This is the last scheduled week of oral arguments in the term.

Tuesday, May 15:

United States v. Vela, No. 12-0194/AR

Issues:
(I) Whether the military judge erred in denying the defense’s motion to dismiss or disqualify under United States v. Kastigar.
(II) Whether the evidence was legally insufficient to support the findings of guilty to Charge III.

Case Links:
• ACCA opinion
• Appellant’s brief
• Appellee’s (government) brief

Followed by:

United States v. Barnett, No. 12-0251/AF

Issue: Whether the military judge abused his discretion when he informed the members of appellant’s illegal pretrial punishment credit and then failed to instruct the members based on a submitted question that the were not allowed to nullify some or all of that credit by increasing the sentence.

Case Links:
• AFCCA opinion
• Blog post: AFCCA issues another published opinion
• Blog post: CAAF to consider what happens when members want to cancel out confinement credit
• Appellant’s brief
• Appellee’s (government) brief

Wednesday, May 16:

United States v. Rauscher, No. 12-0172/NA

Issue: Appellant was charged with, inter alia, assault with intent to commit murder under Article 134, UCMJ.  But the specification failed to allege the terminal element. The members found Appellant not guilty of the charged offense, but guilty of aggravated assault under Article 128, UCMJ, as a lesser-included offense. Did the lower court err in holding that aggravated assault is a lesser-included offense of an Article 134 specification that fails to allege the terminal element?

Case Links:
• NMCCA opinion
• Blog post: NMCCA affirms more 134 specifications without terminal elements
• Appellant’s brief
• Appellee’s (government) brief

Followed by:

United States v. Norwood, No. 11-0515/MC

Issues:
(I) Whether, in light of United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011), the specifications alleging attempted adultery and conspiracy to obstruct justice state offenses.
(II) Whether in order to state an offense of attempt or conspiracy under Articles 80 and 81, the specification is required to expressly allege each element of the predicate offense.

Case Links:
• NMCCA opinion
• Appellant’s brief
• Appellee’s (government) brief
• Appellant’s reply brief

This week at the ACCA: The next scheduled oral argument at the Army CCA is on May 23, 2012.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on May 22, 2012.

This week at the CGCCA: The Coast Guard Trial Docket shows no pending cases at the Coast Guard CCA.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows an oral argument scheduled for May 23, 2012, but no further information is available.

We note that Appellant was convicted of “willfully allow[ing] other persons to have and/or use a military pass or permit, to wit:  his military identification card, in violation of 18 USC § 499″ (Charge V Specification 1); “wrongfully loan[ing] to others [his] military identification card” (Charge V Specification 2); and “wrongfully sell[ing] to [two named Coast Guard seamen] [his] military identification card” (Charge V Specification 4).  It is clear from the providence inquiry that Specifications 1 and 2, which allege exactly the same acts in slightly different language but without substantive difference, are based on the same facts.  We view this as multiplicity, subjecting Appellant to double jeopardy, as well as unreasonable multiplication of charges.  We will disapprove the conviction of the first specification and dismiss it.  The military judge determined that Charge V Specifications 1 and 2 were multiplicious for sentencing (R. at 19), so the sentence is unaffected.

United States v. Smith, No. 1346, slip op. at 3 (C.G. Ct. Crim. App. May 11, 2012) (per curiam) (alterations in original).

Now look at these stats for the number of cert petitions filed by servicemembers seeking review of CAAF decisions over the past few terms:

The number of petitions filed by military appellate defense divisions is even smaller than the numbers set out above.  During the current Supreme Court term, the four appellate defense divisions have filed a combined total of one cert petition (Miranda, No. 11-1237, filed by a Marine Corps Reserve appellate defense counsel).  One of the other two cert petitions (Dietz, No. 11-727) was filed by a civilian counsel while the third (Yelverton, No. 11-7124) was filed pro se in a case in which the Supremes didn’t actually have cert jurisdiction.  During the October 2010 term, the four appellate defense divisions filed a combined total of 2 cert petitions (Nerad, No. 10-532, an Air Force case in which I represented the petitioner, and Mullins, No. 10-710, a Navy case in which LCDR Torrisi repersented the petitioner).  Two of the remaning three cert petitions (Diamond, No. 10-922 and Luke, No. 10-1294) were filed by civilian counsel.  The final military cert petition (White, No. 11-5041) was filed pro se, but was rejected by the Court due to denial of IFP status and was never refiled.

We’ve seen that by many objective measures, the appellate military justice workload has diminished considerably over the past five years.  The current structure of four appellate defense divisions, four appellate government divisions, and four courts of criminal appeals may prove unsustainable both as a fiscal matter and as a practical matter.  Can an appellate shop maintain the level of experience required to provide quality representation as the number of cases shrinks?  Or would both of the parties on appeal receive better representation if all of the appellate defense and all of the appellate government shops were merged?

Upon a rehearing … no sentence in excess of or more severe than the original sentence may be approved…

Rule for Courts-Martial 810 states:

offenses on which a rehearing, new trial, or other trial has been ordered shall not be the basis for an approved sentence in excess of or more severe than the sentence ultimately approved by the convening or higher authority following the previous trial or hearing, unless the sentence prescribed for the offense is mandatory.

The purpose of these provisions is to enforce Congressional intent that “action by a board of review is always taken on behalf of an accused and in his interest. Literally he can never be prejudiced by this appellate review—for on retrial, if any, he cannot be tried for an offense greater than that charged at the first trial, nor can he receive a sentence greater than that adjudged at the first trial. … the accused can never be the subject of final action which is more to his detriment than the original action of the court-martial which heard his case.” United States v. Zimmerman, 6 C.M.R. 12, 20 (C.M.A., 1952); see also United States v. Dean, 23 C.M.R. 185, 188 (C.M.A., 1957) (rejecting the Trono rule of federal practice “that the reversal of the judgment of conviction opens up the whole controversy, and acts upon the original judgment as if it had never been”).

As an aside, military law recognizes three types of re-trials: a rehearing, a new trial, and an other trial (as in “another trial”). A rehearing (on findings, sentence, or both) may be ordered when findings or sentence are set-aside, and is a continuation of the former proceedings; a new trial may be ordered when new evidence or a fraud on the court is discovered; an other trial can occur after the original proceedings are declared invalid due to lack of jurisdiction or failure to state an offense.

Last year, the N-MCCA set-aside the sentence – consisting of only a bad-conduct discharge – in United States v. Altier, No. 201000361 (N-M Ct. Crim. App., May 26, 2011), because “improper oral and written instructions were given to the members, and the sentencing worksheet contained even further mistakes.” Slip op. at 8. A sentence rehearing was conducted, resulting in an approved sentence that did not include a bad-conduct discharge, but did include confinement for 30 days, reduction to pay grade E-5, restriction to base limits, hard labor without confinement for 45 days, and forfeiture of $1,500.00 pay per month for three months. The appellant then sought and was granted a Writ of Prohibition to prevent the imposition of the confinement pending the CCA’s review of the lawfulness of the sentence (see, Boudreaux v. U.S. Navy-Marine Corps Court of Military Review, 28 M.J. 181 (C.M.A. 1989) (Article 66 review is based on the original sentence)).

Last month, in an unpublished opinion, an NMCCA panel split 2-1 and affirmed that approved sentence as “not in excess of, or more severe than, the appellant’s original approved court-martial sentence,” despite the fact that it includes punishments that were not included in the original sentence. United States v. Altier, No. 201000361, slip op. at 3 (N-M Ct. Crim. App., April 30, 2012). Noting that CAAF “has held that there is no exact answer as to how many day of confinement ‘equal’ a bad conduct discharge,” the majority found that, under the circumstances of this case, it could affirm the sentence. Slip op. at 4-5.

However, in a dissenting opinion Senior Judge Perlak found it “impossible to articulate any legal standard by which to reliably compare the social sanction of a punitive discharge against the very basic physical and social consequences accompanying a loss of liberty.” Slip op. at 6. Instead, he compared the sentences head-to-head, and found only the reduction to E-5 permissible, because the original sentence of a bad-conduct discharge implicated automatic reduction to E-1 under Article 58a.

This case isn’t over, and I suspect we’ll see further action either from the NMCCA (en banc) or from CAAF.

Observations from the Guantánamo Arraignment

The experience of observing Saturday’s military commission arraignment of the five alleged 9/11 conspirators in Guantánamo Bay, Cuba on behalf of the National Institute of Military Justice left me with serious concern that systemic issues, many involving “outside” agencies, particularly Joint Task Force Guantánamo (JTF) are likely to preclude the exercise of meaningful attorney-client coordination. This in turn will call into question whether these trials are sufficiently fair as to merit contemporary, and ultimately historical, public approval. These concerns are separate from any issues the substantive law being applied; my comments in this post are limited to matters observed at Guantánamo.

First let me acknowledge some positive points. The government has promised greater transparency in the commission process, and the establishment of additional remote sites where the trial can be viewed as well as the unprecedented same-day internet posting of unofficial trial transcripts (from this link one must go to “Khalid Shiek Mohammed et al. 2 and then to “transcripts” [Media page here, KSM et al. page here, and transcripts page here]) are both good news in this regard. And on some matters Judge Pohl went out of his way to demonstrate “fairness” to the defendants, announcing recesses for prayer times sua sponte, pausing the trial to allow conversion from the planned simultaneous Arabic translation via headphones to sequential translation broadcast via overhead speakers, saying nothing about Bin Attash’s offensive paper airplane, tolerating prayers at times other than actual prayer times, etc. While quality translation is essential to a fair trial where not all defendants speak adequate English, most observers, even commission critics, thought Pohl actually went too far in most of these accommodations. There was unanimous agreement among trial observers with federal practice experience that no U.S. federal judge would have tolerated such breaches of courtroom decorum as unscheduled prayers or defendants making paper airplanes, and few, if any, federal courts would have recessed for prayer times falling outside reasonable mealtimes.

But the obvious “considerations” extended the defendants mask broader concerns which threaten the trial’s ultimate credibility. As a matter of law, these need not necessarily have been addressed Saturday. Colonel Pohl was likely on solid legal ground in deferring the motions that defense attorneys repeatedly tried to push forward until the next court session in June. And some of the defense concerns may well lack objective merit – there are always two sides to every story. Nevertheless the aggregate impression I came away with was that the defense had a number of legitimate issues about detainee treatment impacting their ability to mount a defense that were not merely frivolous attempts to delay the proceedings. Deferral of these issues, even if legally permissible, now impacts their ability to press ahead with trial preparation, and may introduce further delay into a trial the judge unilaterally suggested was still at least a year away.

It was very evident from the very limited interactions between the defense lawyers and the defendants that few, if any, had established any meaningful trust-based attorney-client relationships. The defendants’ previous treatment in U.S. custody clearly impacts their willingness to trust any U.S. government personnel, particularly uniformed military, as well might their ideological perspectives. Those are issues are largely beyond the scope of the commission’s ability to redress. But concerns that can be dealt with include classification rules making it virtually impossible for attorney’s to have meaningful discussions with their clients about the practical impact of past treatment, including most importantly the admissibility of prior statements. In this regard it was rather amazing that when most of the attorneys said they didn’t fully understand the commission classification rules in a colloquy about their willingness to abide by them, the judge accepted what he termed as “hollow” yeses from them in order to proceed through his script.

There is obviously real concern with defense counsels’ ability to confer with their clients outside of the courtroom that require judicial addressal. JTF rules forbid telephonic communication, and the unilateral JTF decision to read, rather than merely inspect, properly marked attorney-client mail, has resulted in ethical rulings that the defense cannot communicate with clients by mail. This leaves only face to face visits, and anyone who has gone through the clearance and travel process to GTMO can understand how onerous this is.

Detention policies also impact defendants’ courtroom presence. Attorneys complained Saturday that they had provided their clients appropriate civilian garb to wear to the hearing, but JTF staff refused to let them wear it. One lawyer said he was told by a JTF Colonel, that’s “not happening” about the defense provided vest and that he could provide a business suit or nothing. No officer of the court had any insight into the process used to bring the defendants to the courtroom or why one defendant, Bin Attash, was strapped into a restraint chair as the proceedings began. The judge presumed that he must have resisted coming to the commission and left him tightly restrained for the first hour or so of the proceedings until the inability of headphones to remain on his head led to the ultimate decision to switch from simultaneous to sequential translation and further discussion about the pain inflicted by the restraints. This discussion finally resulted in him being unstrapped from the chair and allowed to sit normally. It was only very late in the day that any defense attorney had sufficient conversation with their client to raise allegations that they had to undergo strip searches prior to entering the courtroom that morning, and that it was likely that this would cause at least some of the men to elect to skip future trial sessions if that was the only way to avoid that process.

It is certainly true that even in civilian court systems pre-trial confinement management is generally in the hands of authority other than that of the actual courts. But federal prison rules, for example, explicitly mandate that prisoners be able to receive attorney calls; absent a warrant attorney-client mail can be searched for physical contraband but not read; and lawyers and support staff are assured of reasonable face-to-face access to their clients. Moreover, they can simply drive to the prison and park, even if it might be some hours away – they don’t have to engage in the multi-day advance process to coordinate travel followed by the expenditure of multiple days of travel for a single visit. And it is the judge, not the jailor, who decides what is appropriate for defendants to wear in civilian courtrooms.

These are issues that require addressal if any credible defense efforts are to be mounted. And while the defense attorneys seemed obstructionist by repeated allusions to them after the judge made it clear they would not be addressed Saturday, it is understandable that they felt the need to get these considerations both into the record, and before the public.

 Hopefully more to follow either later tonight or tomorrow.  Thanks, Prof. G!

h/t Gene Fidell

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?

I am not aware of any other military justice developments at the Supreme Court.

This week at CAAF: The next scheduled oral argument at CAAF is on May 15, 2012.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on May 23, 2012.

This week at the AFCCA: The Air Force CCA will hear oral argument in United States v. Takara on Monday, May 7, 2012. No case information is available on the CCA’s website.

This week at the CGCCA: The Coast Guard CCA will hear oral argument in United States v. Medina on Monday, May 7, 2012. The granted issue is:

Whether Appellant’s providence inquiry was legally sufficient to support Appellant’s plea of guilty to the specification of sodomy and whether, if the conviction of sodomy is set aside, the Court may reassess the sentence.

This week at the NMCCA: There are no scheduled oral arguments at the Navy-Marine Corps CCA.