Two recent law review notes published by the University of Virginia and the University of Illinois start from the same premise: that the military’s zealous sexual assault prevention and response efforts have compromised the military justice system’s ability to appropriately and reliably dispose of allegations.

In his note, Overcoming Overcorrection: Towards Holistic Military Sexual Assault Reform, 102 Va. L. Rev. 2027 (2016), Greg Rustico favors giving prosecutorial discretion for all crimes with civilian analogues to judge advocates, rather than vesting that power in commanders.  In contrast, a note by Heidi Brady argues for giving prosecutorial discretion in the military justice system to Department of Justice lawyers.  See Justice is No Longer Blind: How the Effort to Eradicate Sexual Assault in the Military Unbalanced the Military Justice System, 2016 U. Ill. L. Rev. Online 193.

In supporting their recommendations, Mr. Rustico and Ms. Brady point to relatively recent changes to the military justice system – such as the revision of Article 32 and the requirement that a commander’s performance/fitness appraisal consider how they handled allegations of sexual assault within their units.  Both also spend a good bit of time asserting that the military’s sexual assault prevention and response programs have tainted military court-martial panels.  Ms. Brady also argues that prosecutorial discretion needs to be taken from the Department of Defense in order to counterbalance certain aspects of the military justice system which she views as being inherently unfavorable to the accused, such as the fact that verdicts are not required to be unanimous, the lack of dedicated defense investigators, the lack of dedicated funding for the defense function, defense counsel’s inability to obtain equal access to documents and witnesses before referral, and the fact that the defense is not permitted to interview victims without having a government-appointed lawyer (either the prosecutor or a victim’s counsel) present.  Neither Mr. Rustico nor Ms. Brady address the sweeping changes which were recently signed into law through the Military Justice Act of 2016, which was this blog’s #1 Military Justice Story of 2016.

The question of whether commanders should retain their prosecutorial discretion, and if not, then where that responsibility should fall, has been a topic of discussion for several years now, on this blog and elsewhere:

• Spilman, Zachary D, Blame all the lawyers [Commentary], Baltimore Sun (March 31, 2014).
• Blog post: “Thinking Slow About Sexual Assault in the Military”
• Blog post: Opposing views on civilianizing military justice
• Blog post: Scholarship Saturday – Professor Schlueter responds to the siren songs for reform
• Blog post: Scholarship Saturday – The plight of the accused

I’m really happy to announce that beginning tomorrow, Isaac “Zeke” Kennen will join CAAFlog as a contributor and will revive the Scholarship Saturday weekly feature.

In 1998, shortly after graduating from high school, Zeke left a working-class community along the foothills of the Blue Ridge Mountains to enlist in the Air Force. He completed an undergraduate degree and deployed to the Balkans during that enlistment, separating in 2003 to attend law school at the University of Colorado in Boulder where he focused on international law and land use. He graduated in 2006 and spent a year adjudicating employment discrimination complaints for the State of Colorado before returning to the Air Force.

Zeke was commissioned into the Air Force JAG Corps in 2007, where he continues to serve. His past assignments include duty as a deputy staff judge advocate, trial counsel, trial defense counsel, appellate defense counsel, and legal adviser to the NATO Commander of Kandahar Airfield in Afghanistan.

Like the rest of us, Zeke’s contributions to this blog will be made in his personal capacity and will reflect only his personal opinions. His contributions do not in any way reflect the official policy or position of the United States Air Force, the Department of Defense, or the U.S. Government.

CAAF will hear oral argument in the Air Force case of United States v. Oliver, No. 16-0484/AF (CAAFlog case page), on Tuesday, February 7, 2017, after the argument in Ortiz. The court granted review of a single, re-drafted issue that involves the 2007-2012 version of Article 120:

Whether wrongful sexual contact was a lesser-included offense of abusive sexual contact.

Senior Airman Oliver was tried on numerous charges by a general court-martial composed of a military judge alone. One charge alleged that Oliver – who was at the time a Staff Sergeant assigned as a training instructor at Lackland Air Force Base – committed abusive sexual contact by placing a female trainee “in fear of an impact on her military career through the use and abuse of [Oliver’s] military rank, position, and authority.” App Br. at 10 (quoting charge sheet). The military judge acquitted Oliver of this offense and instead convicted him of wrongful sexual contact, which occurs when:

Any person subject to this chapter who, without legal justification or lawful authorization, engages in sexual contact with another person without that other person’s permission. . .

Article 120(m) (2006). The military judge notified both sides that he was going to consider this potential lesser included offense in his deliberations and Oliver’s defense counsel did not object.

The difference between the charged offense of abusive sexual contact by placing in fear and the convicted offense of wrongful sexual contact is the element of lack of consent. Sort of. Well, probably.

Read more »

CAAF will hear oral argument in the Air Force case of United States v. Ortiz, No. 16-0671 (CAAFlog case page), on Tuesday, February 7, 2017, at 9:30 a.m. Three issues – one amended and another specified by CAAF – challenge the participation of a Presidentially-appointed and Senate-confirmed judge of the Court of Military Commission Review (CMCR) in the CCA panel that reviewed the appellant’s case. An additional 85 cases are also pending before CAAF (my count as of Feb. 1) with similar issues:

I. Whether United States Court of Military Commission Review Judge, Martin T. Mitchell, is statutorily authorized to sit as one of the Air Force Court of Criminal Appeals judges on the panel that decided Appellant’s case.

Amended Issue: II. Whether Judge Martin T. Mitchell’s Service on both the Air Force Court of Criminal Appeals and the United States Court of Military Commission Review violates the Appointments Clause given his status as a principal officer on the United States Court of Military Commission Review.

Specified Issue: III. Whether Judge Martin T. Mitchell was in fact a principal officer following his appointment by the President to the United States Court of Military Commission Review in light of the provisions of 10 U.S.C. § 949b(4)(c) and (d), authorizing reassignment or withdrawal of appellate military judges so appointed by the Secretary of Defense or his designee.

Ortiz is a replacement for United States v. Dalmazzi, __ M.J. __ (C.A.A.F. Dec. 15, 2016) (CAAFlog case page), which was resolved on mootness grounds but is now the subject of a petition for certiorari (discussed here).

The Military Commissions Act of 2009 established a new CMCR as an independent Article I court of record. See 10 U.S.C. § 950f(a). Judges are appointed to the CMCR by the President through the formal mechanism of the Appointments Clause. 10 U.S.C. §950f(b)(3). However, the Secretary of Defense may also assign “commissioned officers of armed forces” to serve as appellate judges on the CMCR. 10 U.S.C. § 950f(b)(2).

The Secretary of Defense assigned Air Force Colonel Martin T. Mitchell to the CMCR on October 20, 2014, and he was sworn in on October 28, 2014. Afterward, in 2015, in a decision on a petition for extraordinary relief that challenged the assignment of officers like Colonel Mitchell to the CMCR, the U.S. Court of Appeals for the District of Columbia Circuit suggested that any question about the status of such assigned judges could be resolved by their nomination and confirmation by the President. In re Al-Nashiri, 791 F.3d 71, 86 (D.C. Cir. 2015). So, on March 14, 2016, the President nominated Colonel Mitchell to be a judge on the CMCR. Other military officers who were similarly nominated include: Captain Donald C. King, U.S. Navy; Colonel Larss G. Celtnieks, U.S. Army; Colonel James W. Herring, U.S. Army; and Lieutenant Colonel Paulette V. Burton, U.S. Army. 162 CONG. REC. S 1473-74 (daily ed. Mar. 14, 2016). The Senate confirmed the nominations and the Judges were appointed.

These appointments are the basis for the issues in Ortiz.

The case seemingly offers a simple question of how many robes a single judge can wear, but the briefs present a complex web of statutory, constitutional, and caselaw considerations. I’m not going to summarize them here. With the questions already raised before the Supreme Court, however, I suspect that during Tuesday’s argument CAAF is going to try to find a straightforward (if not outright easy) way to resolve these cases.

Case Links:
AFCCA opinion
Blog post: CAAF picks a replacement for Dalmazzi
Appellant’s brief
Appellee’s (A.F. App. Gov’t Div.) brief
Amicus Curiae Brief: Army Appellate Government Division
• Amicus Curiae Brief: Navy-Marine Corps Appellate Government Division
• Amicus Curiae Brief: Military Commissions Defense Organization (& Appendix)
Blog post: Argument preview

Disclosure: In my personal capacity I represent an appellant whose case is one of the 85 trailer cases with similar issues. 

CAAF decided the Coast Guard case of Randolph v. HV and United States, __ M.J. __, No. 16-0678/CG (CAAFlog case page) (link to slip op.), involving a writ-appeal filed by an accused, on Wednesday, February 2, 2017. Sharply divided, the court narrowly concludes that it does not have jurisdiction to review an interlocutory decision by a Court of Criminal Appeals rendered under the victim-focused Article 6b when the accused seeks such review and regardless of how the accused seeks such review. Accordingly, a three-judge majority dismisses the writ-appeal petition.

Judge Stucky writes for the court, joined by Judges Ryan and Ohlson. Judge Ryan also writes a separate concurring opinion. Chief Judge Erdmann dissents, joined by Judge Sparks who also files a separate dissenting opinion.

The writ-appeal challenged the decision of the Coast Guard CCA that significantly expanded the scope of Mil. R. Evid. 513 (the psychotherapist-patient privilege). The CCA’s decision (discussed here) was made on an Article 6b petition for mandamus filed by HV, who is the alleged victim in a case against the petitioner, Coast Guard Damage Controlman Second Class (E-5) Randolph. Article 6b – our #6 Military Justice Story of 2016 – is known as the Military Crime Victims’ Rights Act, because its provisions generally mirror those of the federal Crime Victims’ Rights Act, 18 U.S.C. § 3771. Among those provisions is one allowing an alleged victim to appeal a trial-stage ruling that affects the victim’s rights, and HV used that provision to win additional protections from the CCA for her mental health records.

Randolph appealed the CCA’s decision to CAAF (discussed here). CAAF agreed to hear the appeal and replaced the military judge as a party with the United States (discussed here). However, the court also specified an issue that questions whether it has jurisdiction to consider the appeal in its current form:

I. Whether the United States Court Of Appeals for the Armed Forces has jurisdiction over a writ-appeal petition filed by an accused who is seeking review of a court of criminal appeals’ decision rendered pursuant to Article 6b(e), UCMJ.

II. Whether the “confidential communications” protected by MRE 513 includes records of diagnosis.

Implicit in the specified issue was the fact that last year, in EV v. United States & Martinez, 75 M.J. 331 (C.A.A.F. Jun. 21, 2016) (CAAFlog case page), a unanimous CAAF found that it has no jurisdiction under Article 6b to entertain a writ-appeal by an alleged victim. In Randolph, CAAF wondered if an accused is similarly deprived of the opportunity for review.

Judge Stucky answer this question in the affirmative, concluding that:

the same analysis applies to Appellant’s petition. Article 6b expressly provides that enumerated victims’ rights can be enforced through a writ of mandamus obtained at a Court of Criminal Appeals. There is no mention of additional appellate rights for the accused, or of a grant of jurisdiction to this Court. Accordingly, we lack jurisdiction to consider Appellant’s petition.

Slip op. at 4 (citations omitted). A footnote adds this bit of rhetoric:

it makes no sense to allow the accused to utilize Article 6b, a victim’s statute, to go where the victim may not.

Slip op. at 6 n.2.

Read more »

CAAF decided the Army case of United States v. Sewell, __ M.J. __, No. 16-0360/AR (CAAFlog case page) (link to slip op.), on Wednesday, February 1, 2017. In an opinion that names the trial counsel but avoids direct criticism of his performance, a majority of CAAF finds that the evidence supporting the convictions is sufficient to overwhelm any impropriety in the trial counsel’s closing argument. But a pointed dissent finds serious errors and casts the counsel as a bad role model. CAAF affirms the findings and the sentence and the decision of the Army CCA.

Judge Ryan writes for the court, joined by all but Judge Ohlson who dissents in part.

Sergeant Sewell was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of six specifications of indecent conduct and one specification of assault with intent to commit rape. He was sentenced to confinement for one year, reduction to E-1, total forfeitures, and a dishonorable discharge. The Army CCA granted one month of confinement credit for dilatory post-trial processing but otherwise approved the findings and sentence without further discussion. CAAF then granted review of an issue personally asserted by Sewell, alleging prosecutorial misconduct:

Whether the trial counsel committed prosecutorial misconduct by making improper argument on the findings.

The improper argument involved assertions about Sewell’s “criminal disposition or propensity” to which there was a sustained objection and a curative instruction, slip op. at 4-5, other arguments to which there were overruled objections that the majority do not fault, slip op. at 5 n.2, and alleged “improper vouching, references to facts not in evidence, and statements that purportedly inflamed the passions of the panel,” slip op. at 6, to which there was no objection at trial.

In her opinion for the court Judge Ryan finds that “some of trial counsel’s statements during argument were improper,” slip op. at 2, however she concludes that those improprieties were harmless in light of the evidence supporting the convictions:

Even assuming that trial counsel’s misconduct was severe and the military judge’s instructions were insufficient, we find the third Fletcher factor [the weight of the evidence supporting the convictions] dispositive.

Slip op. at 8. But Judge Ryan also identifies the trial counsel by name:

Appellant argues that the trial counsel, Lt. Col. Matthew McDonald, made improper arguments that prejudiced his right to a fair trial.

Slip op. at 4. This is generally considered to be a bad thing for the named attorney. It is also (by my recollection) the first time CAAF has named a trial counsel in connection with an allegation of impropriety since United States v. Salyer, 72 M.J. 415 (C.A.A.F. 2013) (CAAFlog case page), our #4 Military Justice Story of 2013 Correction: United States v. Stellato, 74 M.J. 473 (C.A.A.F. Aug. 20., 2015) (CAAFlog case page).

Judge Ohlson, however, is even more blunt.

Read more »

In a petition filed today and available here, Second Lieutenant Dalmazzi seeks Supreme Court review of CAAF’s decision in United States v. Dalmazzi, __ M.J. __ (C.A.A.F. Dec. 15, 2016) (CAAFlog case page). The petition begins:

Since shortly after the Civil War, federal law has required express authorization from Congress before active-duty military officers may hold a “civil office,” including positions that require “an appointment by the President by and with the advice and consent of the Senate.” 10 U.S.C. § 973(b)(2)(A)(ii).

After President Obama nominated and the Senate confirmed Colonel Martin T. Mitchell as a judge of the Article I U.S. Court of Military Commission Review (CMCR), Judge Mitchell continued to serve on the U.S. Air Force Court of Criminal Appeals (AFCCA). The U.S. Court of Appeals for the Armed Forces (CAAF) rejected as moot Petitioner’s challenge to Judge Mitchell’s continued service on the AFCCA, because his CMCR commission had not been signed until after the AFCCA decided her case on the merits—even though she moved for reconsideration after the commission was signed.

The Questions Presented are:

1. Whether the Court of Appeals erred in holding that Petitioner’s claims were moot.

2. Whether Judge Mitchell’s service on the CMCR disqualified him from continuing to serve on the AFCCA under 10 U.S.C. § 973(b)(2)(A)(ii).

3. Whether Judge Mitchell’s simultaneous service on both the CMCR and the AFCCA violated the Appointments Clause.

Beyond raising the underling Appointments Clause issue (that is still before CAAF with United States v. Ortiz, No. 16-0671/AF (CAAFlog case page) and – by my count – 84 trailer cases as of yesterday, including one in which I represent the appellant in my civilian capacity), the petition also implicates the jurisdiction-limiting provisions of 28 U.S.C. § 1259 because CAAF’s per curiam opinion in this case vacated the grant of review.

CAAF decided the Navy case of United States v. Pabelona, __ M.J. __, No. 16-0214/NA (CAAFlog case page) (link to slip op.), on Wednesday, February 1, 2017. Reviewing the trial counsel’s closing argument for plain error (because the defense did not object during trial), CAAF finds that even if parts of the argument were improper there is no evidence of prejudice because of the weight of the evidence supporting the convictions. Accordingly CAAF affirms the findings and sentence and the decision of the Navy-Marine Corps CCA.

Judge Sparks writes for a unanimous court.

Chief Hospital Corpsman (E-7) Pabelona was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of larceny and signing a false official statement. The convictions related to a so-called sham marriage (a marriage for the purpose of receiving military dependent benefits). Pabelona was sentenced to confinement for 60 days, restriction for 60 days, reduction to E-5, total forfeitures, and a fine of $60,000 (with a contingent 16 months of additional confinement as an enforcement provision). After considering numerous problems with the post-trial processing of Pabelona’s case, the NMCCA affirmed the findings and only so much of the sentence as provides for confinement for 60 days, reduction to E-5, total forfeitures, and a fine in the amount of $29,529.64.

CAAF granted review of two issues:

I. Prosecutors must act within the bounds of propriety. Here, in front of members, the prosecutor expressed his opinion of appellant including, “I think he’s an idiot,” opined on defense-friendly evidence, characterized appellant’s statements as “ridiculous,” vouched for government-friendly evidence, diagnosed appellant as schizophrenic, asked members to disregard defense arguments, and told members that appellant “sleeps in a bed of lies.” Was this plain error?

II. Whether the military judge erred when he instructed the members, “if based on your consideration of the evidence, you are firmly convinced the accused is guilty of the crime charged, you must find him guilty,” where such an instruction is in violation of United States v. Martin Linen Supply Co., 430 U.S. 564, 572-73 (1977), and there is inconsistent application between the services of the instructions relating to when members must or should convict an accused.

Pabelona’s defense counsel did not object to any of these asserted errors, and so CAAF reviews for plain error. “The standard for plain error review requires that: ‘(1) an error was committed; (2) the error was plain, or clear, or obvious; and (3) the error resulted in material prejudice to substantial rights.’ The burden lies with [Pabelona] to establish plain error.” Slip op. at 3 (quoting United States v. Maynard, 66 M.J. 242, 244 (C.A.A.F. 2008)).

Applying the plain error standard, and without substantive analysis of the comments at issue, Judge Sparks finds that even assuming there was error there is no evidence of prejudice:

[W]e find the weight of the evidence supporting the conviction strong enough to establish lack of prejudice in and of itself. The Government presented ample evidence at trial to support the members’ findings. . .

. . . There is no evidence that the members failed to reach their decisions based on the evidence alone. There is nothing to indicate material prejudice to Appellant’s substantial rights.

Slip op. at 4-5. The court similarly – and summarily – rejects the second issue, with a citation to last week’s decision in United States v. McClour, __ M.J. __ (C.A.A.F. Jan. 24, 2017) (CAAFlog case page).

Case Links:
NMCCA’s opinion
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

CAAF decided the Coast Guard case of United States v. Gomez, __ M.J. __, No. 16-0336/CG (CAAFlog case page) (link to slip op.), on Monday, January 30, 2017. Reviewing for plain error because there was no objection at trial, CAAF denies relief for the prosecution’s sentencing presentation that included questionable testimony from two victims, affirming the opinion of the Coast Guard CCA and the sentence.

Judge Ohlson writes for the court. Judge Stucky concurs with a single-paragraph separate opinion.

Boatswain’s Mate Second Class (E-5) Gomez was convicted of numerous offenses, including of misconduct involving two female crew members who he supervised: SW and MS. The prosecution called the female crew members to testify during the sentencing phase of the court-martial, and they both testified about pregnancy complications suffered after the offenses occurred. Gomez’s defense counsel neither objected to their testimony nor cross-examined either of them. The maximum authorized punishment included confinement for 120 years and 4 months. The prosecution requested a sentence that included 20-30 years of confinement, the defense requested a sentence of no more than five years confinement, and the members sentenced Gomez to confinement for eight years, reduction to E-1, and a dishonorable discharge.

CAAF granted review to determine:

Whether the military judge erred by permitting two complaining witnesses to testify on sentencing that appellant was responsible for their pregnancy complications with no evidence connecting his misconduct to the complications.

This issue was reviewed for plain error – where Gomez “bears the burden of establishing the following three prongs: (1) there was error; (2) the error was clear or obvious; and (3) the error materially prejudiced a substantial right,” slip op. at 4 – because Gomez’s defense counsel did not object.

In today’s opinion Judge Ohlson concludes that Gomez is not entitled to any relief because he “has not established the prejudice prong for the testimony of SW, or the clear or obvious prong for the testimony of MS.” Slip op. at 4. The first conclusion is rather unremarkable, but the second conclusion invokes a possible new standard for plain error in military cases: that an “error is clear if “the trial judge and prosecutor [would be] derelict in countenancing it, even absent the defendant’s timely assistance in detecting it.” Slip op. at 8 (quoting United States v. Frady, 456 U.S. 152, 163 (1982)) (marks in original).

Read more »

This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court, where I’m tracking two cases:

This week at CAAF: The next scheduled oral argument at CAAF is on February 10, 2017.

This week at the ACCA: The Army CCA will hear oral argument in two cases this week:

Thursday, February 2, 2017, at 10 a.m.:

United States v. Bishop, No. 20150441

WHETHER APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL WHERE HIS DEFENSE COUNSEL FAILED TO PRESENT EVIDENCE ABOUT HOW THE LOSS OF RETIREMENT AND MEDICAL BENEFITS WOULD AFFECT APPELLANT’S FAMILY, FAILED TO PRESENT EVIDENCE ABOUT APPELLANT’S GOOD DUTY PERFORMANCE, FAILED TO ASSIST APPELLANT IN PREPARING HIS UNSWORN STATEMENT, AND WHERE COUNSEL SUGGESTED APPELLANT LIED UNDER OATH DURING HIS PRESENTENCING ARGUMENT.

Friday, February 3, 3017, at 10 a.m.:

United States v. Robinson, No. 20150088

I. THE MILITARY JUDGE ERRED WHEN HE FAILED TO FIND SPECIFICATIONS 1, 3, 8, 12, 13, AND 15 OF CHARGE II MULTIPLICIOUS WITH SPECIFICATIONS 1, 2, 3, 7, 8, AND 9 OF CHARGE III, RESPECTIVELY, AS THEY ARE PART OF THE SAME TRANSACTIONS.

II. THE MILITARY JUDGE ERRED WHEN HE FAILED TO FIND THAT SPECIFICATION 5 OF CHARGE IV CONSTITUTES AN UNREASONABLE MULTIPLICATION OF CHARGES WITH SPECIFICATIONS 12 AND 13 OF CHARGE II, AND SPECIFICATIONS 5, 7, AND 8 OF CHARGE III.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

This week at the CGCCA: The Coast Guard CCA’s oral argument schedule shows no scheduled oral arguments.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on February 15, 2017.

A variety of outlets (here (FoxNews) and here (The Hill)) report on the POTUS’s decision to defer to SecDef Mattis on whether the US will use interrogation methods that some have argued constituted torture under international law. It is unclear if SecDef’s view, which is that the US should not use interrogation techniques such as waterbording because they do constitute torture, will be applied to DOD actions abroad or all US agency actions abroad. The Army Field Manual has always prohibited torture, including waterboarding, so DOD operations are clearly governed by SecDef’s view. But it is unclear if CIA covert actions would be bound by SecDef’s view. 

Thoughts on how US policy on torture has now been shaped by judge advocates?  Anyone ever advise then-General Mattis on this topic?

CAAF decided the Air Force case of United States v. McClour, __ M.J. __, No. 16-0455/AF (CAAFlog case page) (link to slip op.), on Tuesday, January 24, 2017. With a short opinion that answers no more than the question presented by the specific facts of this case, CAAF concludes that it was not plain or obvious error for the military judge to instruct the members that if they were “firmly convinced that the accused is guilty of the offense charged, [they] must find him guilty.” Accordingly, CAAF affirms the decision of the Air Force CCA.

Judge Stucky writes for a unanimous court.

Military judges give instructions to the members of a court-martial. Model instructions are published in the Military Judges’ Benchbook (Dep’t of the Army, Pam. 27-9). Those model instructions include one commanding the members that:

[I]f on the whole evidence you are satisfied beyond a reasonable doubt of the truth of each and every element, then you should find the accused guilty.

Benchbook ¶ 2-5-12 (emphasis added). In this case, however, in Air Force cases generally, and sometimes in cases in other services, military judges give a different instruction:

If, based on your consideration of the evidence, you are firmly convinced that the accused is guilty of any offense charged, you must find him guilty.

Slip op. at 2 (emphasis added). McClour’s defense counsel did not object to this instruction at trial, but on appeal McClour asserted that it suffers from numerous flaws. The Air Force CCA disagreed. CAAF then granted review to determine:

Whether AFCCA erred when it failed to grant relief where the military judge instructed the members, “if based on your consideration of the evidence, you are firmly convinced that the accused is guilty of any offense charged, you must find him guilty,” where such an instruction is in violation of United States V. Martin Linen Supply Co., 430 U.S. 564, 572-73 (1977) and there is inconsistent application between the services of the instructions relating to when members must or should convict an accused.

CAAF also granted review of a similarly-worded issue in 21 other cases: 7 from the Air Force and 13 from the Navy/Marine Corps.

Tuesday’s opinion might not resolve all of the cases presenting this issue, as CAAF neither endorses nor condemns the must convict instruction. Rather, Judge Stucky’s opinion concludes only that giving the must convict instruction is not plain error.

Read more »

Here is CNN coverage of POTUS’s early morning tweet paraphrasing Fox News coverage of a Private Manning article, here, that was critical of President Obama for being insufficiently progressive. The tweet reads:

Ungrateful TRAITOR Chelsea Manning, who should never have been released from prison, is now calling President Obama a weak leader. Terrible!

Just in case you were wondering, I have not found anything that specifically prohibits raising UCI at any point in the court-martial process. Any thoughts on UCI over the post-trial process? H/t LM

This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court, where I’m tracking two cases:

This week at CAAF: The next scheduled oral argument at CAAF is on February 10, 2017.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Wednesday, January 25, 2017, at 1 p.m.:

United States v. Stewart, No. 20160128

Issue: Whether the military judge abused his discretion by denying the defense motion to compel appointment of an expert assistant in eyewitness identification.

This week at the AFCCA: The Air Force CCA will hear oral argument in United States v. Mangahas on Tuesday, January 24, 2017, at 10 a.m. No additional information is available on the CCA’s website.

This week at the CGCCA: The Coast Guard CCA’s oral argument schedule shows no scheduled oral arguments.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on February 15, 2017.

Here is a link to The Hill’s coverage of SGT Bowe Bergdahl’s motion to dismiss the charges against him based on Unlawful Command Influence (UCI). The motion argues, according to the article, that President Trump’s statements on the campaign trail calling for Bergdahl’s execution make it impossible for the SGT to obtain a fair trial. Bergdahl Will face a General Court Martial in April on charges of “desertion and misbehavior before the enemy after walking away from his post in Afghanistan in 2009. He was captured by the Taliban and held until a 2014 prisoner swap. The latter charge carries the potential sentence of life in prison.” More from Politico here