CAAF will hear oral argument in the Air Force case of United States v. Shea, No. 16-0530/AF (CAAFlog case page), on Wednesday, January 11, 2017, after the oral argument in Price. The case presents two issues that question the composition of the three-judge panel of the Air Force CCA that reassessed the appellant’s sentence. The genesis of these issues, however, happened in a completely different case that ended after a three-judge panel of the AFCCA reversed a conviction for forcible sodomy for factual insufficiency and then the Air Force Appellate Government Division unsuccessfully moved to disqualify one of those three judges on the basis that she might appear to be biased in favor of the Government:

I. Whether the Court of Criminal Appeals erred on remand when, over appellant’s timely objection, this case was assigned to a panel that did not include all three of the judges from the original decision.

II. Whether a reasonable observer would question the impartiality or independence of the Court of Criminal Appeals after witnessing the removal of Judge Hecker from this case on remand following the Government’s allegations that her impartiality has been impaired by the decision of the Judge Advocate General, who is himself part of the Government, to assign her to perform non-judicial additional duties within the government.

Senior Airman Shea was convicted of violations of Articles 90, 128, and 134, and was sentenced to confinement for four months, reduction to E-1, a reprimand, and a bad-conduct discharge. The convening authority disapproved the adjudged forfeitures as an act of clemency. On appeal, the Air Force CCA reversed one of the convictions and reassessed the sentence, but erroneously approved the adjudged sentence (that included the forfeitures) rather than the lesser approved sentence. CAAF summarily remanded for a new sentence reassessment to fix this (possibly typographic) error, and the CCA ultimately approved the sentence as approved by the convening authority.

But between the time that CAAF remanded Shea (September 2015) and the CCA’s second reassessment in Shea (May 2016), the CCA decided the case of United States v. Rivera, No. 38649 (A.F. Ct. Crim. App. Feb. 18, 2016) (discussed here). In Rivera a three-judge panel of the CCA reversed a conviction for forcible sodomy for factual insufficiency (side-stepping a due process challenge to the military justice system). Colonel Hecker was one of the appellate military judges on the panel that decided Rivera, though she did not author the opinion. She was also, at that time, assigned additional (administrative) duties within the Air Force military justice apparatus; a fact that became significant after the CCA found factual insufficiency in Rivera because after the decision was issued the Air Force Appellate Government Division moved to disqualify Colonel Hecker and get a fresh review of the case by a different panel.

The asserted basis for the motion to disqualify was that Judge Hecker’s other duties involving military justice (that she was assigned to do by the Government) created the appearance that she was biased in favor of the Government in the case the Government just lost:

the United States did file a motion for recusal in Rivera. The United States precisely stated, “[t]o be clear, the United States is not alleging actual impartiality on behalf of Judge H. Nor does it contend that she has advised or acted on Appellant’s case in her capacity with JAJM.” (J.A. at 68.) In fact, the United States argued that due to Judge H.’s assignment to JAJM, a division aligned with the United States Government that provides direction and guidance on prosecuting cases, a reasonable observer might question whether Judge H. was partial to the Government. (J.A. at 78-79.)

Gov’t Br at 5-6 (marks in original). This isn’t – and apparently wasn’t then – a joke.

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CAAF will hear oral argument in the Air Force case of United States v. Price, No. 16-0611/AF (CAAFlog case page), on Wednesday, January 11, 2017, at 9:30 a.m. The court granted review of an issue questioning whether the military judge asked too many questions during the appellant’s guilty plea inquiry:

Whether the military judge abused his discretion by forcing appellant to admit to misconduct greater than was necessary for a provident plea.

Airman First Class (E-3) Price pleaded guilty at a special court-martial composed of a military judge alone to wrongfully using, possessing, and distributing various controlled substances. He was sentenced to confinement for four months, reduction to E-1, and a bad-conduct discharge.

The pleas included admissions using cocaine, using alprazolam (Xanax), and distributing cocaine, all on divers occasions. Divers means more than one, and Price’s initial admissions during the plea were limited to two occasions. The military judge, however, pressed for additional admissions, eventually eliciting that Price used cocaine six times, that he used Xanax between one and three times per week for approximately five months, and that he distributed cocaine approximately six times. The military judge also elicited that Price sold (rather than merely distributed) cough syrup containing Codeine to another airman. Price’s defense counsel objected to the military judge’s questions as unnecessary and “forcing [Price] to give up evidence in aggravation.” App. Br. at 4 (quoting record).

The prosecution then used Price’s admissions to press for a harsher sentence, with trial counsel arguing:

What is important here is that he made the decision to use drugs but we know that it wasn’t just a one-time mistake or it was experimentation. We know that he used drugs, he used cocaine multiple times. In fact, he told us he used cocaine at least six times through August and October 2014, but that wasn’t it. He also used another drug. He used Xanax and he told you today, also, that he used that one to three times a week. This is a drug user we’re talking about.

App. Br. at 7 (quoting record). The Air Force CCA considered and rejected an assignment of error related to the military judge’s questions.

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CAAF will hear oral argument in the Army case of United States v. Lopez, No. 16-0487/AR (CAAFlog case page), on Tuesday, January 10, 2017, after the argument in Davis. The court specified a single issue for review that questions whether it was error for certain witnesses to testify about their opinion of the appellant’s guilt:

Whether the military judge erred by admitting the testimony of appellant’s wife, Mrs. CL, who testified that appellant’s apology to his stepson meant that appellant was “loosely admitting guilt” to criminal conduct, and by also admitting the testimony of Ms. NM, who testified that appellant “had probably raped” his wife because Mrs. CL had recently researched “spousal rape” on the internet.

A general court-martial composed of officer members convicted Sergeant (E-5) Lopez, contrary to his pleas of not guilty, of rape of his wife and indecent liberties with a child for exposing his wife’s minor son to pornographic material, both in violation of Article 120 (2006). Lopez was sentenced to confinement for five years, total forfeitures, reduction to E-1, and a dishonorable discharge. The Army CCA summarily affirmed the findings and sentence.

The case is something of a sequel to last term’s decision in United States v. Martin, 75 M.J. 321 (C.A.A.F. Jun. 17, 2016) (CAAFlog case page) – one of our honorable mentions for the Top Ten Military Justice Stories of 2016 – in which a deeply-divided CAAF narrowly concluded that the defense counsel invited the erroneous admission of human lie detector testimony. In Lopez, however, invited error is unlikely (the defense objected to the questionable testimony of CL).

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CAAF will hear oral argument in the Army case of United States v. Davis, No. 16-0306/AR (CAAFlog case page), on Tuesday, January 10, 2017, at 9:30 a.m. The case presents a single issue questioning the standard of review for instructions not given:

Whether the Army Court of Criminal Appeals erred in refusing to apply de novo review for failure to instruct on an affirmative defense raised by the evidence, and instead found forfeiture and applied a plain error analysis, contrary to this court’s precedents in United States v. Taylor, 26 M.J. 127 (C.M.A. 1988); United States v. Davis, 53 M.J. 202 (C.A.A.F. 2000); and United States v. Stanley, 71 M.J. 60 (C.A.A.F. 2012).

In 2013 Private Davis was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of one specification of forcible rape in violation of Article 120. He was sentenced to confinement for six months, reduction to E-1, and a bad-conduct discharge. The conviction was based on an encounter between Davis and a female soldier in the other soldier’s barracks room, the military judge did not instruct the members on the defense of mistake of fact as to consent, and the defense did not object to the omission of such an instruction.

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In United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page) – our #3 Military Justice Story of 2016 –  a unanimous CAAF concluded that charged offenses may not be used under Mil. R. Evid. 413 to prove an accused’s propensity to commit the charged offenses, and also that the standard instruction given to members regarding how to handle such propensity evidence undermines the presumption of innocence.

In the wake of Hills both the Army and Air Force CCAs held that the decision does not apply to a case tried by military judge alone. United States v. Hukill, No. 20140939 (A. Ct. Crim. App. Aug. 16, 2016) (discussed here), rev. granted, __ M.J. __ (C.A.A.F. Nov. 23, 2016) (discussed here). United States v. Phillips, No. 38771 (A.F. Ct. Crim. App. Sep. 7, 2016) (discussed here).

As noted above, CAAF granted review of the Hills issue in Hukill on November 23.

Yesterday CAAF granted review in Phillips:

No. 17-0037/AF. U.S. v. Cory D. Phillips. CCA S38771. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

I. WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION BY GRANTING THE GOVERNMENT MOTION TO USE EVIDENCE OF CHARGED SEXUAL MISCONDUCT UNDER MIL. R. EVID. 413 TO SHOW PROPENSITY TO COMMIT OTHER CHARGED SEXUAL MISCONDUCT. See UNITED STATES v. HILLS, 75 M.J. 350 (C.A.A.F. 2016).

II. WHETHER THE LOWER COURT ERRED WHEN IT FAILED TO REMAND APPELLANT’S CASE FOR NEW POST-TRIAL PROCESSING AFTER THE STAFF JUDGE ADVOCATE’S RECOMMENDATION (SJAR) FAILED TO CORRECT AN ERROR IN APPELLANT’S CLEMENCY SUBMISSION. See UNITED STATES v. ADDISON, NO. 16-0615/AF (C.A.A.F. 26 July 2016) (rem.).

III. WHETHER APPELLANT’S CONVICTION ON SPECIFICATION 1 OF THE CHARGE IS LEGALLY INSUFFICIENT WHERE THE GOVERNMENT FAILED TO PROVE THAT APPELLANT AND SrA LS ENGAGED IN A SEXUAL ACT.

Briefs will be filed under Rule 25.

In this post from November I noted a published opinion by a three-judge panel of the NMCCA in United States v. Kruse, No. 201600101, in which the court found that the convening authority did not have the power to disapprove an adjudged punitive discharge when the pretrial agreement stated that the convening authority may approve the discharge, but the agreement only required suspension of the discharge. The panel reinstated the discharge but then suspended it – an action that I noted was outside the power of a CCA.

The CCA has reconsidered the case en banc. United States v. Kruse, __ M.J. __ (N.M. Ct. Crim. App. Dec. 22, 2016) (en banc) (link to slip op.). While it reaches the same conclusion about the convening authority’s power, the en banc court does not suspend the discharge. Rather, noting that the appellant was administratively separated post-trial, the CCA concludes that the discharge was remitted by the administrative separation. This conclusion is consistent with CAAF’s explanation in United States v. Watson, 69 M.J. 415, 416 (C.A.A.F. 2011), that “a post-trial administrative discharge operates to remit the unexecuted punitive discharge portion of an adjudged court-martial sentence.”

Chief Judge Palmer authored both of the CCA’s opinions in Kruse.

Kruse is notable because it involves the new Article 60(c) but in the reverse of the fact pattern from United States v. Roller, 75 M.J. 659, (N-M. Ct. Crim. App. Mar. 31, 2016) (discussed here), in which the NMCCA held that it was an affirmative misstatement of the law for a SJA to fail to advise the convening authority of the restored power in a case involving an offense that occurred before June 24, 2014. In Roller the convening authority was not constrained by the new Article 60(c) but was improperly advised that he was. In Kruse, however, the convening authority was constrained by the new Article 60(c) but he did more than the pretrial agreement authorized (also on the improper advice of a staff judge advocate).

Here’s the bottom line: The new Article 60(c) applies in all cases tried on or after June 24, 2014, unless the case involves a conviction of an offense occurring before June 24, 2014.

The authority for this is the Carl Levin And Howard P. “Buck’” Mckeon National Defense Authorization Act For Fiscal Year 2015, § 531(g)(2)(A)(ii), 128 Stat. 3292, 3366 (2015) (discussed here):

With respect to the findings and sentence of a court-martial that includes both a conviction for an offense committed before [June 24, 2014] and a conviction for an offense committed on or after that effective date, the convening authority shall have the same authority to take action on such findings and sentence as was in effect on the day before such effective date, except with respect to a mandatory minimum sentence under section 856(b) of title 10, United States Code (article 56(b) of the Uniform Code of Military Justice).

Subsequently, on June 19, 2015, the President inserted a note into R.C.M. 1107 to emphasize this exception:

Note: Subsections (b)–(f) of R.C.M. 1107 apply to offenses committed on or after 24 June 2014; however, if at least one offense in a case occurred prior to 24 June 2014, then the prior version of RCM 1107 applies to all offenses in the case, except that mandatory minimum sentences under Article 56(b) and applicable rules under RCM 1107(d)(1)(D)–(E) still apply.

R.C.M. 1107, note (M.C.M. 2016 ed.). See also Executive Order 13696, 80 Fed. Reg. 35,783, 35,810 (June 22, 2015) (discussed here).

At the end of last month CAAF received a certification from the Army JAG and the court granted review in a Coast Guard case.

The certification involves a Government appeal of military judge’s ruling that suppressed the fruits of a search of the accused’s mobile phone:

No. 17-0153/AR. United States, Appellant v. Edward J. Mitchell, II, Appellee. CCA 20150776. Notice is hereby given that a certificate for review of the decision of the United States Army Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862, and a supporting brief under Rule 22, together with a motion to stay trial proceedings were filed on this date on the following issues:

I. WHETHER THE FIFTH AMENDMENT’S SELF-INCRIMINATION CLAUSE IS VIOLATED WHEN A SUSPECT VOLUNTARILY UNLOCKS HIS PHONE WITHOUT GIVING HIS PERSONAL IDENTIFICATION NUMBER TO INVESTIGATORS.

II. WHETHER THE EDWARDS RULE IS VIOLATED WHEN INVESTIGATORS ASK A SUSPECT, WHO HAS REQUESTED COUNSEL AND RETURNED TO HIS PLACE OF DUTY, TO UNLOCK HIS PHONE INCIDENT TO A VALID SEARCH AUTHORIZATION.

III. WHETHER, ASSUMING INVESTIGATORS VIOLATED APPELLANT’S FIFTH AMENDMENT PRIVILEGE OR THE EDWARDS RULE, THE MILITARY JUDGE ERRED BY SUPPRESSING THE EVIDENCE.

The Army CCA affirmed the military judge’s ruling in a short opinion available here.

The grant involves a specification under Article 120b that was changed during the trial to allege a different specific sexual act, and a specification under Article 134 that lacked words of criminality such as wrongfully:

No. 17-0028/CG. U.S. v. Shane E. Reese. CCA 1422. On consideration of the petition for grant of review of the decision of the United States Coast Guard Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

I. WHETHER THE MILITARY JUDGE ERRED IN ALLOWING THE GOVERNMENT TO MAKE A MAJOR CHANGE TO A SPECIFICATION AFTER THE COMPLAINING WITNESS’S TESTIMONY DID NOT SUPPORT THE OFFENSE AS ORIGINALLY CHARGED.

II. WHETHER THE SPECIFICATION OF THE ADDITIONAL CHARGE FAILS TO STATE AN OFFENSE WHERE THE TERMINAL ELEMENT FAILED TO ALLEGE WORDS OF CRIMINALITY AND WHERE THE ALLEGED CONDUCT FELL WITHIN A LISTED OFFENSE OF ARTICLE 134, UCMJ.

Briefs will be filed under Rule 25.

The Coast Guard CCA’s opinion is available here. The CCA rejected both issues concluding that the amended specification alleged an act that was essentially included in the original act alleged, and also that words of criminality are not necessarily required (in accordance with United States v. Tevelein, 75 M.J. 708 (C.G. Ct. Crim. App. 2016) (discussed here)). However, one judge dissented and would have dismissed the Article 134 specification due to the omission of words of criminality.

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 January 10, 2017.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on February 22, 2017.

This week at the AFCCA: The Air Force CCA will hear oral argument in United States v. Pugh on Wednesday, January 4, 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.

Our #1 Military Justice Story of 2016 is the Military Justice Act of 2016, passed as Division E of the National Defense Authorization Act for Fiscal Year 2017 and signed into law by President Obama on December 23, 2016.

A bookmarked PDF of the MJA is available here.

The Act was the product of the Military Justice Review Group, an internal DoD working group created by the Secretary of Defense to conduct a comprehensive review of the UCMJ. As an internal group the MJRG’s meetings and deliberations were closed to the public, and there was little subsequent public debate about the group’s 1,302 page report and legislative proposal. The House and Senate adopted the MJRG’s legislative proposal in differing degrees, and the final legislation was worked out in conference committee. It’s not everything the DoD wanted, but it’s pretty close, and it’s the most significant changes to the UCMJ since the Military Justice Act of 1983.

The changes won’t take effect until the President establishes an effective date that need only be sometime before January 1, 2019 (1st day of the 1st month two years after enactment). Yet while Congress gave the President up to two years to make the Act effective, it only allowed one year for revision of the Manual for Courts-Martial (perhaps in recognition of the fact that the White House has been painfully slow to act on draft executive orders forwarded by the Joint Service Committee).

Of course we’ll analyze the MJA in 2017, and we’ll keep reporting on developments in military justice for the eleventh year. Stay tuned.

The last person executed as the result of a court-martial was Army Private First Class John A. Bennett’s, whose convictions for the rape and attempted murder of a child led the Court of Military Appeals to observe that “seldom, if ever, have we been faced with a record which revealed a more vicious offense, or an accused who had less to entitle him to any consideration by the fact finders.” United States v. Bennett, 21 CMR 223, 225 (C.M.A. 1956).

Bennett was hanged in the boiler room of the United States Disciplinary Barracks at Fort Leavenworth on April 13, 1961. See Dwight H. Sullivan, The Last Line of Defense: Federal Habeas Review of Military Death Penalty Cases, 144 Mil. L. Rev. 1, 76 (1994) (citing James J. Fisher, A Soldier is Hanged, Kan. City Star, Apr. 13, 1961, at 7).

The military gallows have been quiet since then, but the military’s death row experienced a flurry of activity in 2016 with notable developments in four capital cases.

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Our #3 Military Justice Story of 2016 is CAAF’s blockbuster decision in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page).

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Power to the people was a popular chant in the 1960s. But the better chant for 2016 was: Power to the CCAs! In five cases the Courts of Criminal Appeals flexed their muscles and prevailed.

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Deadlines – particularly missed deadlines – were a big story in 2016.

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Many call Article 6b of the UCMJ the Military Crime Victims’ Rights Act, because its provisions generally mirror those of te federal Crim Victims’ Rights Act, 18 U.S.C. § 3771.

Enacted as part of the 2013 changes to the UCMJ, and then modified the following year, the scope and reach of Article 6b is still somewhat unsettled. While not limited to alleged victims of sex crimes, Article 6b is most often invoked in such cases because Congress mandated creation of Special Victims’ Counsel programs in 10 U.S.C. § 1044e and the statute only makes those services available to “the victim of an alleged sex related offense.” Those counsel are authorized to assist alleged victims in a far-reaching set of circumstances, and they have brought a measure of chaos to courts-martial by demanding discovery, filing motions, and occasionally even sitting at a third table during proceedings while avoiding the requirements placed on actual parties to the case.

But 2016 brought some clarity to Article 6b.

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Defense counsel often tell an accused that he has one job: Keep your mouth shut. Marine Major Mark Thompson’s discussions with Washington Post reporter John Woodrow Cox illustrate why.

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