From this Huffington Post editorial by Sen. Claire McCaskill:

By that measurement, an alternative approach being proposed this week — one that would completely strip commanders of their responsibilities, including the ability to launch courts-martial — falls short. Here’s why:

It would leave a huge number of victims behind. Over the past two years, there have been at least 93 cases in which prosecutors declined to pursue charges, but in which a commander launched a court martial. And many of those courts-martial resulted in convictions. That’s 93 victims who would never have had their day in court if commanders lost the ability to bring a case to court martial. We’ve also found almost no cases in which a prosecutor wanted to pursue charges but was overruled by a commander. Stripping commanders of the ability to launch courts-martial seeks to solve a problem — commanders refusing to move cases forward — that we just don’t have.

As I said before, here, the former sex crimes prosecutor should be applauded for really learning about this issue.  I can’t say I agree with all of her responses to this issue, see e.g. the nomination of LTG Helms here, but you have to give her credit for really trying to figure out the consequences of changes and not just proposing changes for political value.

Here is an opinion piece from the woman that a panel of members at Aviano AFB found was the victim of a sexual assault by LTC Wilkerson.  The panel’s decision was set aside by the convening authority . . . and the rest is history.

Sen. McCaskill discusses her more modest proposal for military justice reform here:

McCaskill argued that because commanders would be stripped of the decision to prosecute in Gillibrand’s bill, the measure would fail to hold them accountable.

“We just had a fundamental policy difference on whether or not it was going to help victims more to hold the commander accountable or to allow them to walk away,” she said.

I’m a little late posting this, but last week Rep. Jackie Speier (D-CA14) threw her hat into the Article 32 reform ring. H.R. 3459, text available here, appears to be identical to the bill introduced by Sen. Boxer, which we covered here. This bill will be in competition in the House with the bill from Rep. Turner, covered here.

Also, this article from Politico is an interesting read on the political dimensions of military justice reform and how it plays into larger ideological and political battles.

CAAF’s daily journal update for yesterday reflects this entry from last week:

No. 14-0005/AF.  U.S. v. Daniel A. FREY.  CCA 37759.  Review granted on the following issue:

WHETHER THE AIR FORCE COURT ERRED IN FINDING TRIAL COUNSEL’S PRESENTENCING ARGUMENT WAS HARMLESS ERROR WHERE TRIAL COUNSEL INSINUATED THAT APPELLANT WILL COMMIT FUTURE ACTS OF CHILD MOLESTATION.

Briefs will be filed under Rule 25.

We didn’t discuss Frey when it was decided in July, but it’s an interesting case. The AFCCA’s unpublished opinion is available here, and includes discussion of Appellant’s other assertions of error, including IAC in plea negotiations, erroneous post-trial processing, and cruel and unusual punishment during approximately two months of post-trial confinement in a civilian facility while awaiting transfer to Fort Leavenworth.

Appellant was convicted in 2010, contrary to his pleas of not guilty by a general court-martial composed of officer members, of one specification of aggravated sexual contact and one specification of rape of a child who had not attained the age of 12 years, both in violation of Article 120 (2006). He was sentenced to reduction to E-1, confinement for 8 years, and a dishonorable discharge.

Read more »

Audio of today’s oral arguments in United States v. Hines, No. 13-5010/AR (CAAFlog case page) and United States v. Knapp, No. 13-5012/AF (CAAFlog case page) is available at the following links:

Hines argument audio

Knapp argument audio

A few weeks ago I announced a server move and asked readers to report any outages. Fortunately, the move went well and there were no reported issues. Unfortunately, at least one more move is planned as part of continuing improvements designed to make this blog more useful, more user friendly, and more accessible (to people and to search engines). So if you’re have trouble accessing CAAFlog, please send me email to zack {at} caaflog.com (yes, with a “k”).

For those interested in the tech, I’m continuing to refine our site template, we’re now tagged with microdata, and a mobile site is in the works.

From the Coast Guard a conviction for sexual assault in Alameda from the Alameda Patch here.  There are at least 10 different ways lawmakers in the Capitol could misconstrue what possibly happened here.

Fireman Elmer Molina, 25, was stationed at the Coast Guard Training Center in Petaluma at the time of the two assaults and the alleged assault, and he had previous sexual relationships with the three women that he knew from the Coast Guard bases in Alameda and Petaluma, Chief Warrant Officer and Coast Guard spokesman Donnie Brzuska said Friday afternoon.

Molina was convicted on Nov. 9 of a sexual assault on Nov. 4, 2012, in the victim’s Rohnert Park apartment, and of an April 5, 2013, sexual assault at his residence at 7788 Bridgit Drive in Rohnert Park, Brzuska said.

The sexual assault allegations first surfaced after a female Coast Guard member reported Molina raped her in a Rohnert Park hotel room in March 2012, Brzuska said.

The Coast Guard launched a comprehensive investigation, but Molina was ultimately found not guilty of that allegation, Brzuska said.

But during the investigation of the alleged rape in March 2012, the Coast Guard learned about the Nov. 4, 2012, and April 5, 2013, sexual assaults, Brzuska said.

. . . .

A military jury sentenced Molina on Nov. 9 to a bad conduct discharge, reduction to the lowest enlisted pay grade, 60-days’ restriction and 90 days of hard labor without confinement, Brzuska said.

In unrelated news from Politico, here, Sen. Kirsten Gillibrand announced yesterday:

Sen. Kirsten Gillibrand will seek a floor vote on her original military sexual assault proposal after supporters threatened to abandon the New York Democrat’s effort if she made changes that weakened it.

“We’re going to stick to the original plan because it’s a better bill,” Gillibrand said Sunday on ABC’s ‘This Week,’ referring to an amendment that would overhaul the Pentagon’s military justice system by removing the chain of command from all major military crimes.

Military.com reports, here, on a POGO letter to SecDef asking him to remove the head of DoD’s sexual assault response effort.

A government watchdog — the Project on Government Oversight — sent a letter to Defense Secretary Chuck Hagel asking him to remove Maj. Gen. Gary S. Patton from his command of the Sexual Assault Prevention and Response Office at the Pentagon.
The letter cites a report by the Department of Defense Inspector General which found Patton, who was then the deputy commander of an Afghan training mission, had “restricted subordinates from communicating with IG investigators [in an investigation unrelated to the sexual assault issues his office is now addressing].”

In a page taken from Law and Order, an accused officer will argue that his identical twin brother is the source of DNA found in sexual assault cases involving young girls. Stars and Stripes coveeage here.

And I am every Navy commander that has made a port visit in the Phillipines is over-noted that so-called Fat Leonard is being held without bail and thus has every incentive to sing like canary. La Times report here.

I did this quickly so please arson any bad descriptions and the block quotes.

H/t Defense News EB

In United States v. Porter, No. 20110470 (A.Ct.Crim.App. Oct 31, 2013) (link to unpub. op.), the Army CCA considered the case of an appellant who was convicted contrary to his pleas of not guilty, by a general court-martial composed of members, of failure to obey a lawful general regulation by providing alcohol to an under-21 Private, and of sexual assault of the same Private by engaging in a sexual act with her while she was substantially incapable of declining participation. The appellant remained silent throughout the findings phase of the trial, but he made an unsworn statement during the sentencing phase.

Then, when the Government counsel gave his sentencing argument:

the trial counsel repeatedly emphasized not only that appellant’s unsworn statement was not subject to cross examination but that it did not include an express apology to Private CA or the Army. Separate and apart from those points of focus, the prosecutor commented three different times that appellant had not denied committing the offenses of which he had been convicted during his unsworn statement:

[1] The accused gave an unsworn statement and an unsworn statement can’t be cross-examined, but what was significant in that unsworn statement was not what he said, but what he didn’t say. Because what he didn’t say— well, what he didn’t say first, was that he didn’t do it. That you all got it wrong. Okay. He didn’t say that….

[2] Specific deterrence is a punishment, sort of a punishment philosophy that goes into what you will give the accused so that he doesn’t do it again. So that he is sure to have learned his lesson because of what he did to Private [CA] in that hotel room, that you all found him guilty of, that he didn’t say didn’t happen, and that he didn’t say he was sorry for.

[3] Specific deterrence because nowhere in that unsworn statement, that government couldn’t even cross-examine him on, there was no apology. No real recognition of what he did was wrong. Even at the same time, he didn’t deny it happened.

Slip op. at 2. The Army CCA finds “no lawful implication the trial counsel could have been making when arguing the double negative of what the appellant had not denied.” Id.

The court does not identify the counsel by name.

Read more »

This week at SCOTUS: There are two new petitions for cert in military justice cases:

Dalton v. United States, No. 13-589. Dalton is a Marine Corps homicide case tried at Camp Lejeune, NC, in 2011. Appellant was convicted, contrary to his pleas, of involuntary manslaughter as a lesser included offense of unpremeditated murder. On appeal he challenged whether this is actually a LIO. The NMCCA affirmed the findings in an opinion published at 71 M.J. 632 (link to slip op.) CAAF granted review and summarily affirmed on July 17, 2013, with this daily journal entry:

No. 13-0124/MC. U.S. v. William  C. DALTON. CCA 201100521. On further consideration of the granted issue, 72 M.J. 83 (C.A.A.F. 2013)(order granting review), and the briefs filed by the parties, it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.*

* We agree with the Court of Criminal Appeals that involuntary manslaughter under Article 119(b)(1), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 919(b)(1) (2006), is a lesser included offense of unpremeditated murder under Article 118(2), UCMJ, 10 U.S.C. 918(2) (2006).  However, the Court of Criminal Appeals erred when it suggested that the comparison of elements between murder and involuntary manslaughter must be conducted or “viewed in the light of human experience.”  United States v. Dalton, 71 M.J. 632, 634 (N-M. Ct. Crim. App. 2012).  Such language conflicts with our past decisions.  United States v. Wilkins, 71 M.J. 410, 412 (C.A.A.F. 2012); United States v. Alston, 69 M.J. 214, 216 (C.A.A.F. 2010); and United States v. Jones, 68 M.J. 465, 468 (C.A.A.F. 2010) (applying normal principles of statutory construction to statutory elements).

Brown v. United States, No. 13-583. CAAF decided United States v. Brown, No. 13-0244/NA, (opinion) (CAAFlog case page) on July 15, 2013, finding that the military judge did not abuse his discretion under Military Rule of Evidence 611(a) when he allowed the victim advocate to sit next to the 17 year-old victim during her testimony against Appellant, affirming the NMCCA.

I’m not aware of any other military justice developments at the Supreme Court, where I’m now tracking the two new petitions and the petition for a writ of mandamus in the Partington case:

• In Re Earl A. Partington, No. 13-414 (pending conf. on Nov. 26) (CAAFlog coverage of the Partington case)
• Dalton v. United States, No. 13-589 (pending response from the SG)
• Brown v. United States, No. 13-583 (pending response from the SG)

This week at CAAF: CAAF will hear oral arguments in two cases this week, both on November 18, 2013. With Kevin Ohlson recently confirmed to fill the vacant seat at CAAF, and no notice in the daily journal naming any senior judge to sit for these cases, it looks like we will get our first taste of Judge Ohlson’s style tomorrow:

United States v. Hines, No. 13-5010/AR (CAAFlog case page)

Issues (both certified by the Army JAG):
I. Whether the Army Court of Criminal Appeals erred when it held that Appellee’s pleas to Specifications 1, 2, and 3 of Charge II were improvident because theft of basic allowance for housing and family separation allowance occurring over multiple months “amounts to a separate larceny each month the money is received.”
II. Whether the Army Court of Criminal Appeals erred when it held that Appellee’s pleas to Specifications 1 and 3 of Charge II were improvident because the military judge “never satisfactorily resolved the inconsistency between [Appellee's] pleas to the entire amount [of basic allowance for housing] in light of his apparent entitlement to a lesser amount.”

Case Links:
• ACCA’s opinion
• Appellant’s (Government) brief
• Appellee’s brief
• Appellant’s (Government) reply brief
• Blog post: Argument preview

United States v. Knapp, No. 13-5012/AF (CAAFlog case page)

Issue: Whether the military judge (1) plainly erred by initially allowing “human lie detector” testimony, (2) abused his discretion by allowing further admission of “human lie detector” testimony, over defense objection, and (3) erred by not providing a curative instruction on the “human lie detector” testimony.

Case Links:
• AFCCA’s opinion
• Appellant’s brief
• Appellee’s (Government) brief
• Appellant’s reply brief
• Blog post: The “human lie detector” returns to CAAF
• Blog post: Argument preview

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on is on Thursday, November 21, 2013, at 10 a.m.:

United States v. Stanczyk, No. 20110438

Issues:
I. Whether the evidence is factually and legally insufficient to support the findings of guilty.
II. Whether the military judge committed prejudicial error when he denied a defense objection to uncharged misconduct, which the government offered under Mil. R. Evid. 404(b) and 413.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on November 25, 2013.

This week at the CGCCA: The Coast Guard Trial Docket shows one scheduled oral argument at the Coast Guard CCA, on January 9, 2014.

This week at the NMCCA: The next scheduled date for oral argument at the Navy-Marine Corps CCA is on November 26, 2013.

Here is WaPo coverage of the latest turn in the Marine Corps’ bad publicity machine that.  Maj. James Weirick has filed a complaint with the Information Security Oversight Office, which oversees classification procedures across the federal government.

The former head of that office, J. William Leonard, endorsed his complaint.

“I am extremely concerned that the integrity of the classification system continues to be severely undermined by the complete absence of accountability in instances such as this clear abuse of classification authority,” he wrote in a letter to the agency’s directory, John P. Fitzpatrick.

And the drama continues.

Here is the Pittsburgh Tribune Review’s coverage of the preferral in the case of First Sergeant Michael Barbera:

An Army small-kill team leader is charged by military investigators with two counts of murder in the fatal shootings of two deaf, unarmed Iraqi youths in March 2007, an incident first made public in a Tribune-Review investigative report last year.

Then-Staff Sgt. Michael Barbera is accused of killing Ahmad Khalid al-Timmimi, 15, and his brother Abbas, 14, as they tended to cattle in a palm grove near As Sadah, an Iraqi village about 50 miles northeast of Baghdad.

Barbera, 31, who was later promoted to sergeant first class, also is charged with lying to his commanders, directing fellow soldiers to lie to military investigators and making a threatening phone call to a civilian in an effort to keep what happened from becoming public. He was charged on Wednesday at Alaska’s Fort Richardson and is in the process of being flown to Joint Base Lewis-McChord near Tacoma, where he will undergo a formal arraignment — called an Article 32 hearing in the military.

Aside from the flub in the last sentence of that quote, the Tribune-Review has apparently been all over this story, running a multi-page onvestigaticlve report that they claim led to the Army re-opening the case. See the Trib’s prior coverage here.

A commenter mentioned something about “The Weirick.” A little research turned up this story in the Marine Corps Times:

The Marine whistle-blower who was fired from his job in September received a poor performance evaluation after his removal — more proof of reprisal, his attorney says, for voicing concerns about senior leaders’ involvement in the legal proceedings stemming from a high-profile scandal.

Maj. James Weirick, a Marine attorney stationed in Quantico, Va., received his most recent fitness report in late October from Col. Donald Riley, the supervisor who ousted him from his post after Weirick wrote a confrontational email to Peter Delorier, a former legal adviser to Marine Corps Commandant Gen. Jim Amos. Dated Oct. 24, the document rates Weirick as average or below average in individual skills, character and leadership competencies, and recommends he not be promoted.

If this keeps up then I’m going to have to issue a retraction of my post where I argued that the existing prohibitions on retaliation for reporting offenses are strong enough.

The Marine Corps Times also has this story of an acquittal in a long-running court-martial in California:

A combat-wounded Marine accused of defrauding the government as part of a massive embezzlement scheme was acquitted this month after defense attorneys argued during his court-martial that his command took extraordinary measures to ensure he was punished.

The criminal case against Staff Sgt. Anthony Rios Jr., 38, is significant because his legal team tied the aggressive effort to prosecute him to a presentation delivered last year to thousands of Marines around the world from the service’s commandant, Gen. Jim Amos. Amos’ so-called Heritage Brief took aim at what he saw as a rash of misbehavior in the ranks — everything from sex assault and hazing to monkey business in the war zone — and called for Marines to hold one another accountable when they screw up.

Rios, a forward observer with 3rd Air Naval Gunfire Liaison Company, was charged in 2011 with conspiring to steal $3,000 through bogus travel claims.

Law and Order: SVU has a new episode titled “Military Justice.” A full rundown of the episode is here (spoilers galore), and includes this:

Amelia [alleged rape victim] comes by the precinct after word of the arrests [of those she accused]. Just as she begins to open up about the female hazing that takes place on the base, several officers barge into the office, arresting Amelia for fraternization, disorderly conduct, and adultery. They drag her out of the office. Shocked, Liv doesn’t understand how they can charge her with adultery when she’s single. Barba explains that since Lipitt is her junior, he won’t be charged. What’s more, now that she’s been charged, the charges against the men will be dropped. The next step will be an Article 32 hearing — which is like a grand jury, except that they can ask anything they want. As if a grand jury wasn’t traumatizing enough.

And there are multiple stories about an apparent shift (and who didn’t see this coming) in the focus of effort to “reform” the military justice system. From this Stars and Stripes story:

“We’re considering focusing the amendment on sexual assault and rape in response to some suggestions by undecided senators,” Gillibrand, who chairs the Senate Armed Services personnel subcommittee, told reporters. “We already have a majority on our current bill. … We may need 60 (votes) and we’re looking intently to undecided colleagues about what makes the bill stronger.”

Emphasis added. The story also notes:

Military officials said setting up the new independent office would cost about $113 million a year, including salaries for about 600 attorneys and support staff.

Finally, in news from the Naval Academy, the Associated Press got their hands on a copy of the Investigating Officer’s report in the former football players sexual assault case. An excerpt from this Washington Times story:

“As difficult as it would be for the government to prove beyond a reasonable doubt that (the alleged victim’s) professed lack of memory at the time Midshipman Graham engaged in sexual activity with her was due to her being substantially incapacitated, the government’s task becomes extremely more difficult, if not impossible, due to the heavy damage done to (the alleged victim’s) credibility at the Article 32 hearing,” Cmdr. Robert Monahan, the investigating officer in the case, wrote in his report to Miller.

The story continues with a comment from Susan Burke:

Susan Burke, an attorney for the alleged victim, said military prosecutors in the case are inexperienced and said officials should at least add more prosecutors to the trial team.

“There is no effort to get a win here — none,” Burke said.

Someone please help me out. What does Ms Burke consider to be “a win?” Because last I checked:

The [prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.

Berger v. United States, 295 U.S. 78, 88 (1935).

Hey. Why are you laughing?

CAAF will hear oral argument in United States v. Knapp, No. 13-5012/AF (CAAFlog case page) on Monday, November 18, 2013. The case involves the awesome powers of the “human lie detector” and whether a law enforcement officer may testify about “training” to recognize untruthfulness through “nonverbal discrepancies” or “cues” during an interrogation.

Appellant was convicted by a general court-martial composed of officer and enlisted members of aggravated sexual assault in violation of Article 120 (2006) for engaging in sexual intercourse with a female Airman while she was substantially incapacitated by alcohol. He was sentenced to confinement for 3 years, total forfeitures, reduction to E-1, a reprimand, and a dishonorable discharge.

Before trial, Appellant was interrogated by the Air Force Office of Special Investigations (AFOSI). Appellant initially stated that he had consensual sexual intercourse with the female Airman. But as the interrogation progressed over the course of a few hours, Appellant eventually admitted that the female was unconscious when he began having sex with her. At trial, the Defense tried to show that this later admission was false, caused by AFOSI’s interrogation techniques. But an AFOSI investigator testified at trial about many “nonverbal cues” given by Appellant during the earlier, exculpatory part of his interrogation, and explained, “That is indicating to me that there is some form of deception going on.” United States v. Knapp, ACM 37718, slip op. at 7 (A.F.Ct.Crim.App. Mar. 20, 2013) (unpublished). Eventually the Defense specifically objected to “human lie detector” testimony from the agent, but the judge overruled the objection and then gave no specific instructions to the members about such testimony.

The AFCCA found error, noting:

What the trial counsel elicited, however, was that these actions by the appellant constitute “nonverbal discrepancies” or “cues” which AFOSI agents are “trained” to recognize. Although the agent was not specifically asked to provide his opinion about the truth or falsity of the appellant’s statements, we find that his overall testimony indicated he could tell the appellant was lying based on the appellant’s physical reactions, and we thus find error.

Knapp, ACM 37718, slip op. at 11. But the CCA affirmed anyway, finding no prejudice due to the “inconsistencies and contradictions” in Appellant’s statements during the interrogation and the general instruction given to the members that they were responsible for evaluating the credibility of the witnesses. The CCA also cited the Defense’s “‘false coerced confession’ strategy” in its conclusion finding no prejudice. Id., slip op. at 12.

CAAF then grated review of a three-part issue:

Whether the military judge (1) plainly erred by initially allowing “human lie detector” testimony, (2) abused his discretion by allowing further admission of “human lie detector” testimony, over defense objection, and (3) erred by not providing a curative instruction on the “human lie detector” testimony.

Read more »

Today Air Force Lieutenant Colonel Jeffrey Krusinski, formerly chief of the Air Force SAPR (“sexual assault prevention and response”) program, was acquitted by a Virginia jury of assaulting a woman during an encounter outside of a Crystal City bar earlier this year. From this Washington Post story:

Lt. Col. Jeffrey Krusinski, 42, was head of the Air Force’s sexual assault prevention branch when he was arrested after the May encounter outside a Crystal City bar. The incident was swept up in an ongoing debate over whether the military is equipped to handle sexual assaults among its ranks.

Prosecutors and defense attorneys finished their final pitches to jurors about 3:30 pm. Arlington County Assistant Commonwealth’s Attorney Cari Steele asked them to focus on Krusinski’s grabbing of the woman’s buttocks when she clearly “didn’t like it” and ignore what she termed “distractions” posed by his defense attorneys.

“She felt totally violated,” Steele said. “That’s what this case is about.”

Barry Coburn, Krusinski’s attorney, highlighted what he called inconsistencies in the woman’s account of a fracas after the alleged grab, and said those were enough to give jurors reasonable doubt. He hinted that Krusinski might have grazed the woman by accident on a narrow sidewalk.