I’ve periodically written about why charges need to be alleged in the conjunctive (e.g., prejudicial to good order and discipline and likely to bring discredit upon the armed forces), not in the disjunctive (e.g., prejudicial to good order and discipline or likely to bring discredit upon the armed forces). For instance, in my analysis of United States v. Stewart, 71 M.J. 38 (C.A.A.F. Mar. 6, 2012) (CAAFlog case page) I wrote:

The tragedy is that CAAF’s resolution turns on the amateurish charging decision of the government, rather than any of the other significant issues presented by this case (which included the important question of the proper role of the military judge in determining the availability of the defense of consent). The rule of “charge in the conjunctive, prove in the disjunctive” is old and well-settled (see, for example, the United States Attorneys’ Manual entry on the subject), and a court-martial is specifically authorized, by R.C.M. 918, to return findings with exceptions. The use of the word “or” in place of “and” doesn’t just make a specification duplicitous, it creates a potential referral (i.e., jurisdictional) issue as the court-martial cannot know which facts were the basis for the “reasonable grounds to believe that an offense triable by a court-martial has been committed,” as required by R.C.M. 601(d)(1).

The appeal of disjunctive pleadings is likely the fear that conjunctive pleadings force the prosecution to prove both sides of the conjunction – a fear that is mistaken and nonsensical.

In a recent unpublished opinion in United States v. Dietz, No. 38117 (A.F.Ct.Crim.App. Jul. 17, 2014) (link to slip op.), the AFCCA issues yet another reminder of this rule:

We agree with our colleagues in the other service courts that “pleadings and findings in the disjunctive may constitute error, but . . . [s]uch error is not uniformly fatal and, in the absence of material prejudice, may be waived.” United States v. Crane, ARMY 20080469, unpub. op. at 1 (Army Ct. Crim. App. 18 August 2009) (citing United States v. Gonzalez, 39 M.J. 742, 749 (N.M.C.M.R. 1994)). “While charging in the disjunctive is disfavored, under Article 134, [UCMJ,] it does not automatically render the specification fatally defective.” United States v. Miles, 71 M.J. 671, 673 (N.M. Ct. Crim. App. 2012), rev. denied, 72 M.J. 257 (Daily Journal 19 April 2013). In a guilty plea case, we review the specification with “maximum liberality.” United States v. Ballan, 71 M.J. 28, 33 (C.A.A.F. 2012) (citation and internal quotation marks omitted). “It has been exhaustively clarified that the phrase ‘prejudicial to good order and discipline or of a service-discrediting nature’ merely pleads two different theories of liability for a singular terminal element under which an accused can be found guilty of but one offense.” United States v. Chestnut, ARMY 20120612 (Army Ct. Crim. App. 31 October 2013) (unpub. op.) (citing United States v. Medina, 66 M.J. 21 (C.A.A.F. 2006)), rev. denied, 73 M.J. 294 (Daily Journal 24 April 2014).

Slip op. at 3. The court concludes:

We would nonetheless echo the admonition of the Army Court of Criminal Appeals:

We take this opportunity to strongly discourage disjunctive pleadings. Such pleadings serve no discernable purpose and unnecessarily create avoidable appellate issues. While statutory construction may offer alternate theories of criminal liability, pleadings should specify those theories, using the conjunctive . . . if more than one may apply. If concerned with exigencies of proof, trial counsel may plead in the conjunctive and fact-finders may find by exceptions. This eliminates any potential for ambiguity in pleadings or findings. Further, we urge trial judges to eliminate disjunctives by ordering the Government to amend the specification when, as here, it otherwise gives sufficient notice of the crime alleged and would not constitute a major change. Certainly, judges should ensure disjunctives are eliminated when entering findings or when members make findings on a specification.
Crane, unpub. op. at 2 (internal citations omitted).

Slip op. at 5 (omission in original).

I’ve long believed that instructions are the most important part of a trial, and back in April I noted CAAF’s grant in United States v. Wagner, No. 14-0048/AR, as the eighth case of the term involving instructions. But yesterday CAAF summarily affirmed the Army CCA’s decision that found no error in the absence of an instruction to the members on the offenses of wrongful sexual contact and assault consummated by a battery as lesser included offenses of the offense of aggravated sexual assault. The CCA found:

Applied to this case, it is clear that there was no factual dispute as to the differing elements between wrongful sexual contact and assault consummated by a battery. As defined, the two offenses differ only as to the nature of the act committed: wrongful sexual contact requires a sexual contact, UCMJ art. 120(m), whereas battery requires a harmful or offensive touching, UCMJ art. 128. In this case, there was no dispute as to the nature of the act performed—appellant conceded at trial that he engaged in sexual intercourse with DL. Thus, not only was assault consummated by a battery not raised by the evidence (for the same reasons wrongful sexual contact was not raised), but even if it was raised by the evidence, it would still have been improper to instruct upon it. Appellant has no right to a compromise verdict or any instruction that is tantamount to a request for jury nullification. See, e.g., United States v. Thomas, 116 F.3d 606, 615 (2nd Cir. 1997) (“[I]n language originally employed by Judge Learned Hand, the power of juries to ‘nullify’ or exercise a power of lenity is just that—a power; it is by no means a right or something that a judge should encourage or permit if it is within his authority to prevent.”). Accordingly, the military judge properly omitted instruction upon this
lesser-included offense.

United States v. Wagner, No. 20111064, slip op. at 18-19 (A.Ct.Crim.App. Jul. 29, 2015) (link to unpub. op.).

The other seven instructions cases of the term are:

  • United States v. Payne, 73 M.J. 19 (C.A.A.F. Jan. 6, 2014) (CAAFlog case page) (affirming after finding improper instructions on the elements to be harmless error).
  • United States v. Knapp, 73 M.J. 33 (C.A.A.F. Jan. 15, 2014), recons. den., __ M.J. __ (CAAFlog case page) (reversing due to the judge’s failure to instruct members to disregard improper human lie detector testimony).
  • United States v. Hornback, No. 13-0442/MC, 73 M.J. 155 (C.A.A.F. Mar. 6, 2014), pet. for cert. filed, __ S.Ct. __ (Jun. 23, 2014) (CAAFlog case page) (affirming, despite finding significant prosecutorial misconduct, because of the effectiveness of the judge’s curative instructions).
  • United States v. Talkington, 73 M.J. 212 (C.A.A.F. Apr. 7, 2014) (CAAFlog case page) (affirming after holding that sex offender registration is a collateral consequence of the conviction alone and that the military judge may properly instruct the members essentially to disregard it when determining an appropriate sentence).
  • United States v. Davis, 73 M.J. 268 (C.A.A.F. May 23, 2014) (CAAFlog case page) (affirming after finding that the military judge’s failure to instruct on the defense of defense of property was harmless beyond a reasonable doubt).
  • United States v. MacDonald, No. 14-0001/AR (CAAFlog case page) (questioning judge’s failure to give requested involuntary intoxication instruction).
  • United States v. Torres, No. 14-0222/AF (post discussing grant) (questioning judge’s failure to give Defense requested instruction on voluntariness (automatism)).

In an issue-packed unpublished opinion in United States v. Hudgins, No. 38305 (A.F.Ct.Crim.App. Apr. 3, 2014) (link to slip op.), the Air Force CCA considers the tardy disclosure to the Defense of mental health records of an alleged victim of sexual assault, finding no prejudice in a case where the Government employed an in camera review of the records by the military judge to avoid its discovery obligation.

The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of two specifications of abusive sexual contact, one specification of rape, one specification of forcible sodomy, and one specification of assault consummated by a battery, in violation of Articles 120, 125, and 128. He was sentenced to confinement for eleven years, a reprimand, and a dishonorable discharge.

The charges involved encounters with two female airmen, DB and PS. The appellant and DB had a pre-existing sexual relationship, but she claimed that he forcibly raped her while she was sleeping with him in her bed. DB made this allegation within a day of the encounter. The allegation by PS involved an encounter that occurred before the encounter with DB, but PS did not report it until after being encouraged to do so by her boyfriend and after seeking counseling.

The Defense sought production of the active duty mental health records of PS. Such records are generally privileged against disclosure (to either side) under Military Rule of Evidence 513.

Defense counsel sought several pieces of information they believed were contained in the mental health records, including “where she talks about issues with her current boyfriend.” The defense asserted this information was relevant and necessary because it would further the defense theory that A1C PS reported the sexual assault because her boyfriend might surmise it was consensual if she did not report it, possibly jeopardizing the relationship. The Government opposed producing her mental health records. The military judge reviewed A1C PS’s mental health records in camera and determined none of the mental health records were relevant, at least in regard to findings.

Slip op. at 6. The Defense also sought production of records related to prior statements PS might have made about sexual abuse that contradicted her in-court testimony during a pre-trial motions session. Slip op. at 9.

After the appellant was convicted, a Government expert psychologist testified about post-traumatic symptoms exhibited by both victims. In particular, the psychologist “testified that he had interviewed or examined both A1C PS and A1C DB, and testified that both Airmen exhibited many symptoms consistent with PTSD.” Slip op. at 9-10. As a result, the military judge determined “that the Government had placed the mental health of A1C PS and A1C DB at issue in sentencing proceedings, and therefore he planned to disclose certain records to the defense.” Slip op. at 10. But first the judge allowed DB to testify in sentencing. Then he provided records to the Defense that included information about prior allegations of sexual assault made by PS. Slip op. at 10. The basis for the jude’s disclosure to the Defense was “a possible contradiction” with the pre-trial motions testimony by PS, “potentially providing a basis to impeach her.” Slip op. at 10.

Upon reviewing the records, the Defense moved for a mistrial.

Read more »

In case you missed the news this weekend, the DoD IG has cleared the Commandant of the Marine Corps of wrongdoing in the Marine Corps’ urination cases.  Reports here (Marine Corps Times) and here (WaPo).  Strange result in a stranger case.  The Marine Corps has no current plans to release the investigation, but it is unclear if they are considering it or asking the DoD IG to do so–though the Marine Corps seemingly had no problem immediately confirming details about actions against the whistleblower in this case, see e.g.  here.

In an unpublished opinion in United States v. Dunton, No. 201300148 (N-M.Ct.Crim.App. Jul. 15, 2014) (link to unpub. op.), the Navy-Marine Corps CCA finds “merit in the appellant’s argument that the military judge erred by admitting over defense objection certain testimony concerning the appellant’s sexual orientation.” Slip op. at 1.

The appellant, a noncommissioned officer and infantry squad leader, faced at trial three specifications of wrongfully committing sexual contact in the barracks upon three different members of his company. At the time of his offenses, two of the three Marines were members of his platoon; Corporal (Cpl) [P] and Lance Corporal (LCpl) [E]. A third victim, LCpl [B] lived in the same barracks and was a member of a different platoon within the company.

Slip op. at 3. The appellant and all three of his alleged victims are male.

The appellant was convicted contrary to his pleas of not guilty, by a special court-martial composed of officer members, of two specifications of wrongful sexual contact and one specification of assault consummated by a battery, in violation of Articles 120 and 128. He was sentenced to confinement for twelve months, reduction to E-1, forfeiture of $994.00 pay per month for 12 months,and a bad-conduct discharge (these are the jurisdictional maximums for each type of punishment).

The appellant’s first victim, Cpl P, returned to his barracks room after a night of drinking. Later, the appellant entered Cpl P’s room and put his hand down Cpl P’s pants. A few days later the second victim, LCpl B, awoke to find the appellant naked and lying next to him in his bed, with the appellant’s hand under LCpl B’s shirt resting on his chest. Neither Cpl P nor LCpl B immediately reported what happened. A few months after this, the third victim, LCpl E, was playing a video game in his barracks room. He allowed the appellant into his room. The appellant then opened and reached into LCpl E’s shirt, and then he grabbed LCpl E’s buttocks under his sweatpants. LCpl E immediately left the room and reported the incident.

Soon after, LCpl E, Cpl P, and two other Marines confronted the appellant. “Accounts of what happened next differed at trial. What is clear is that an altercation ensued during which Cpl [P] punched the appellant in the face and one other Marine took the appellant to the ground in a ‘full mount’ hold. Following this scuffle, LCpl [E] reported the earlier events of the evening.” Slip op. at 4. An investigation followed, and the appellant was charged with the sexual offenses involving Cpl P, LCpl P, and LCpl E. “After charges were referred to trial, several additional Marines also reported similar unwelcome physical contact from the appellant.” Slip op. at 4.

Before trial, the Government moved to admit evidence that the appellant had a sexual interest in men. Slip op. at 7. The Government offered this evidence to show “intent and a ‘common scheme [] that when [the appellant] gets drunk, [he] finds a junior Marine or a Marine equal to him, somebody that he feels that he can get close to, and encroaches on their physical space in his intoxicated state, and progressively increases his touching with the intent to sexually gratify himself.’” Slip op. at 9 (quoting Record at 144) (changes in original). This looks a lot more like a propensity basis than the non-propensity bases of intent or common scheme (where the Government would use the other acts as evidence of the appellant’s intent or plan on a specific, charged occasion), and the Defense opposed the Government motion. But the military judge granted the motion, finding specifically that one of the uncharged alleged incidents “was sufficiently similar to the charged offenses . . . and therefore probative of the appellant’s ‘intent to gratify his sexual desire.’” Slip op. at 7. The military judge also found that the probative value of uncharged incident was not substantially outweighed by the danger of unfair prejudice. The CCA finds no error in this analysis, concluding:

As she differentiated between the probative value and attendant prejudice, and distinguished this evidence from other uncharged acts offered by the Government, we afford her great deference and conclude that there lies no clear abuse of discretion.

Slip op. at 10. But the military judge also permitted the Government to introduce the testimony of a LCpl J, who testified (over Defense objection) about seeing the appellant approach LCpl B on the catwalk outside LCpl B’s barracks room the evening before the second incident (where LCpl B awoke to find the appellant naked in his bed). The CCA finds that the military judge erred by permitting this testimony.

Read more »

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

This week at CAAF: The next scheduled oral argument at CAAF is on September 9, 2014.

This week at the ACCA: The Army CCA’s website shows no scheduled oral arguments.

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

This week at the CGCCA: The Coast Guard Trial Docket shows no scheduled oral arguments at the Coast Guard CCA.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

This past week CAAF granted review in two cases and ordered briefs on a petition for extraordinary relief.

First, on Tuesday, July 29, CAAF granted review in another ultimate offense doctrine case: United States v. Amaya, No. 14-0558/AR.


Last October, in a post titled Is the “ultimate offense doctrine” making a comeback?, I analyzed the Army CCA’s unpublished opinion in United States v. Phillips, No. 20120585 (A.Ct.Crim.App. Sep. 23, 2013), in which it applied the doctrine to reverse a guilty plea. A few months later I wrote: The Army CCA slows the return of the “ultimate offense doctrine”, analyzing the CCA’s unpublished decision in United States v. Bartsh, No. 20111104 (A.Ct.Crim.App. Dec. 31, 2013), where the court rejected the doctrine. The CCA also reconsidered its decision in Phillips, reversing course in a published decision, United States v. Phillips, 73 M.J. 572 (A.Ct.Crim.App. Jan. 31, 2014) (en banc op. on recon.), and prompting me to write: It was fun while it lasted… the Army CCA puts an end to the comeback of theultimate offense doctrine.

CAAF then granted review in Phillips (case No. 14-0199/AR, grant discussed here) and in a trailer (United States v. Nemeth, No. 14-0491/AR, grant discussed here). The grant in Amaya brings the total number of granted ultimate offense doctrine cases at CAAF to three. The Army CCA’s opinion in Amaya is available here, but it does not address the ultimate offense doctrine.

Next, on Thursday, July 31, CAAF granted review in United States v. Gutierrez, No. 13-0522/AF:




Briefs will be filed under Rule 25.

The CCA’s latest opinion in this case is available here. This is the second trip to CAAF for this case. The court granted review of the first two issues last September (discussed here), but summarily remanded the case to the CCA in December (discussed here) for consideration of the composition of the panel that considered the case. If you don’t know what this issue is about, you need to check out the case page for United States v. Janssen, 73 M.J. 221 (C.A.A.F. Apr. 15, 2014) (CAAFlog case page).

CAAF’s grant of the speedy trial issue in Gutierrez returns the AFCCA’s delays – part of our #9 military justice story of 2013 – to CAAF in the wake of United States v. Merritt, 72 M.J. 483 (C.A.A.F. Dec. 5, 2013) (CAAFlog case page), in which the court found no prejudice. The appointment issue is also returning to CAAF in the upcoming term, in United States v. Jones, No. 14-0057/AF (grant discussed here), in which the court will consider the application of de facto officer doctrine (that it rejected in Janssen)

Finally, CAAF issued a really interesting order on Thursday, July 31, on a petition for extraordinary relief:

No. 14-8014/AF. U.S. v. Mark K. ARNESS. Crim. App. Dkt. No. 2013-30. On consideration of the writ-appeal petition filed by Appellant for review of the decision of the United States Air Force Court of Criminal Appeals on application for extraordinary relief in the nature of a writ of error coram nobis, it is ordered that the Judge Advocate General of the Air Force appoint counsel to represent Appellant, and that both parties submit briefs on the following issue:


Briefs will be filed with the Court by August 29, 2014.

The AFCCA’s opinion is available here. The appellant is a Lieutenant Colonel who was convicted by a general court-martial of 14 specifications of unauthorized absence, 10 specifications of making false official statements, and 2 specifications of conduct unbecoming, in violation of Articles 86, 107, and 133, UCMJ. He was sentenced to confinement for 11 months and a reprimand. The sentence was below the threshold for automatic review by the Air Force CCA under Article 66(b), and so it was reviewed by the Judge Advocate General of the Air Force pursuant to Article 69(a). The JAG found no error and then denied the appellant’s request for reconsideration. The appellant then filed a writ petition with the AFCCA, asserting 13 errors. The court found that is had jurisdiction to consider the petition, but denied relief:

We find the requested writ is “in aid of” our existing jurisdiction. The petitioner’s sentence at his court-martial did not entitle him to review by this Court under Article 66, UCMJ, 10 U.S.C. § 866. Instead, The Judge Advocate General reviewed his conviction under Article 69(a), UCMJ. Under Article 69(d)(1), UCMJ, The Judge Advocate General could have referred the case to this Court for review. In addition, Article 69(d)(2), UCMJ, authorizes this Court to review “any action taken by the Judge Advocate General under this section” in a court-martial. An application for a writ of error coram nobis is “properly viewed as a belated extension of the original proceeding during which the error occurred.” Denedo, 556 U.S. at 913. Since we could have properly reviewed the original proceeding under Article 69, UCMJ, we adopt the position of our fellow service court that a court of criminal appeals retains authority to issue extraordinary writs in cases reviewed under Article 69, UCMJ. See Dew v. United States, 48 M.J. 639 (Army Ct. Crim. App. 1998). We also find that the requested writ is “necessary or appropriate,” as there are no adequate alternative remedies available to the petitioner.

Having concluded that we may review the petition, we hold that the petitioner is not entitled to relief.

United States v. Arness,  No. 2013-30, slip op. at 3 (A.F.Ct.Crim.App. Mar. 11, 2014). Presumably the appellant didn’t petition CAAF just to question the CCA’s jurisdiction to consider his 13 assertions of error.

That’s the title of my essay published today in the Columbia Law Review Sidebar and available here.

For those that yearn for human interest military justice stories, from The Oklahoman, “Free on the Plains,” a story of Michael Behenna’s life since his release from the USDB.

This could be an interesting Spring Break read, Meltdown in Haditha: The Killing of 24 Iraqi Civilians by U.S. Marines and the Failure of Military Justice.  Releases in Spring/Summer 2015.  From the preview:

In November 2005, Sunni insurgents attacked a U.S. Marine squad returning to its headquarters in Haditha with an improvised explosive device (IED). One marine died and two others were wounded. Within minutes, squad members killed 24 Iraqi civilians, including an elderly couple, four women and six children. It was the worst incident of its kind in the Iraq War.  Read more »

In  United States v. Morita, 73 M.J. 548 (A.F.Ct.Crim.App. Jan 10, 2014) (discussed here), the Air Force CCA considered a reserve lieutenant colonel’s convictions of forgery, larceny, and frauds against the United States in connection with his reserve duty that involved, among other things, forging over 500 signatures or initials on over 100 documents, most of which were related to travel orders and reimbursement. The CCA found that only 178 of the 510 forgeries of which the appellant was convicted occurred during a time when the appellant was subject to the UCMJ under Article 2(a). In doing so, the court denied a Government motion to attach documents that the Government asserted would show which days the appellant was actually in an active duty status and subject to the UCMJ.

The Air Force JAG then certified the case to CAAF (certification discussed here) with an issue questioning whether the CCA erred in finding no subject matter jurisdiction and in denying the Government motion to attach documents.

On Friday, July 25, CAAF granted review of an issue that has the potential to moot the Government’s certification:


The CAAF case number is 14-5007/AF.

CAAF decided the Coast Guard case of  United States v. Leahr, 14-0265/CG, 73 M.J. 364 (CAAFlog case page) (link to slip op.), on Friday, July 25, 2014. A divided court finds that Appellant’s regulatory speedy trial right was not violated in this case because the charges were dismissed and re-preferred, resetting the 120-day speedy trial clock. Additionally, the court finds no improper reason behind the dismissal. The court also rejects – in a brief footnote – a challenge to the impartiality of the military judge. CAAF affirms Appellant’s convictions and the decision of the Coast Guard CCA.

Judge Ryan writes for the court, joined by Chief Judge Baker and Judge Ohlson. Judge Stucky dissents, joined by Judge Erdmann.

Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of one specification of larceny, four specifications of assault consummated by a battery, and two specifications of wrongfully communicating a threat, in violation of Articles 121, 128, and 134. He was acquitted of additional allegations of assault, as well as allegations of burglary and kidnapping. The members sentenced Appellant to confinement for three months, reduction to E-1, and a bad-conduct discharge.

Appellant’s brief to CAAF explained that the charges involved two alleged victims. Most of the charges alleged offenses against Appellant’s fiancee (BM), but one of the assault specifications involved another Coast Guard member (LS). The allegation involving LS wasn’t discovered by the Government until after the Article 32 investigation was complete and Appellant was arraigned on the other charges. The allegation was otherwise unrelated to the case and involved events that occurred a year prior (and Appellant was ultimately acquitted of that offense). But,

 Based on this new allegation, on September 1, 2011, the convening authority signed a document titled, “Withdrawal and Dismissal of Charges Against Appellant],” which stated:

The charges and specifications referred to a general court-martial on 16 June 2011 in the case of United States v. AST2 Jaason M. Leahr, USCG, are hereby withdrawn and dismissed without prejudice. . . . In anticipation of the possibility that this new allegation will cause [Appellant] to become the subject of a newly preferred additional charge which would warrant referral to a court-martial, I desire that the accused to be [sic] tried on all charges at a single trial to best serve the interests of justice and promote judicial economy.

Slip op. at 4. Five days later the original charges were re-preferred, with two changes. The first change was an addition of terminal element language to the Article 134 specifications (it was omitted from the first charge sheet). The second change was the addition of a specification of assault consummated by a battery involving LS. A second Article 32 investigation was conducted, but it only considered the new specification. The charges were then referred to another general court-martial, and Appellant moved to dismiss for improper referral and violation of his regulatory speedy trial right under Rule for Courts-Martial 707. “The military judge denied both motions finding, among other things, that the withdrawal and dismissal of the original charges was valid and for a proper reason.” Slip op. at 5-6. The CCA affirmed, “relying on the fact that the convening authority dismissed the original charges,” and “that the reason for withdrawal and re-referral was greater judicial and cost efficiencies.” Slip op. at 6 (marks and citations omitted).

CAAF then granted review of three issues:

I. Whether the military judge erred in denying the defense motion to dismiss for violation of appellant’s right to speedy trial under RCM 707.

II. Whether the government’s withdrawal of charges and re-referral to another court-martial was in violation of RCM 604(b) because they were previously withdrawn for an improper reason.

III. Whether appellant was denied a fair trial when the military judge twice suggested in front of the members that appellant was guilty, first by “thanking” a witness for his efforts to protect the victim, and then by asking defense counsel before findings whether a witness would be subject to recall as a “sentencing witness.”

Judge Ryan frames the first (and main) issue as a question of fact:

In this case, if the convening authority dismissed the original charges on September 1, 2011, the dismissal reset the speedy trial clock and no violation under R.C.M. 707 occurred. If, however, his action amounted to a withdrawal only, the speedy trial clock was not reset and the 190-day period between the initial preferral on March 1, 2011, and arraignment on all charges on November 8, 2011, violated R.C.M. 707.

Slip op. at 8 (citations omitted). The majority concludes that “on balance . . . the convening authority intended to, and did, dismiss the original charges.” Id.

Read more »

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

This week at CAAF: The next scheduled oral argument at CAAF (and the first argument of the September 2014 term) is on September 9, 2014. Additionally, CAAF recently published its oral argument calendar for the next term:

September 2014: 9
October 2014: 7, 8, 14, 15, 21
November 2014: 18, 19
December 2014: 9, 10
January 2015: 13, 14, 27
February 2015: 10, 11, 24, 25
March 2015: 17, 18
April 2015: 14, 15, 28, 29
May 2015: 12, 13
June 2015: 9

This week at the ACCA: The Army CCA’s website shows no scheduled oral arguments.

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

This week at the CGCCA: The Coast Guard Trial Docket shows no scheduled oral arguments at the Coast Guard CCA.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

On Monday the Court of Appeals for the Federal Circuit rejected a claim for veterans’ benefits by a petitioner who twice went UA from the Army during the Vietnam era, leading first to a special court-martial, and then to a general court-martial where he received a bad-conduct discharge. Prior to his discharge he suffered hearing loss while working with artillery, was hospitalized, and was issued a hearing aid. After his discharge he sought veterans’ benefits for his hearing loss, but the VA denied the claim due to the circumstances of his discharge. The petitioner then participated in President Ford’s clemency program, leading to a clemency discharge and a full pardon, and reapplied for benefits. But the VA again denied the claim, and the Court of Appeals for Veterans Claims affirmed, based on the underlying misconduct. The Federal Circuit affirms the Veterans Court.

The case is Robertson v. Gibson, No. 2013–7103, __ F.3d. __ (Fed. Cir. Jul. 21, 2014) (link to slip op.).

The opinion begins with a history lesson about the clemency program:

On September 16, 1974, six weeks after taking office, President Ford announced “a Program for the Return of Vietnam Era Draft Evaders and Military Deserters.” Proclamation 4313, 39 Fed. Reg. 33,293, 33,293–95 (Sept. 17, 1974). Its stated purpose was “to bind the Nation’s wounds and to heal the scars of divisiveness” inflicted upon American society during the Vietnam War. Id. at 33,293. Accordingly, President Ford declared that Vietnam-era military deserters and draft evaders would be given “the opportunity to earn return to their country, their communities, and their families, upon their agreement to a period of alternate service in the national interest, together with an acknowledgment of their allegiance to the country and its Constitution.” Id. The President’s program was carefully crafted, recognizing that “[u]nconditional amnesty would have created more ill feeling than it would have eased. Reconciliation was what was needed, and reconciliation could only [have] come from a reasoned middle ground.” PCB Report 1.

Slip op. at 3. The petitioner participated in the program and received “full pardon pursuant to an executive grant of conditional clemency.” Slip op. at 8. He “relies heavily on the fact that the document [he recieved] contains the phrase ‘full pardon.’” Slip op. at 11. But the court finds that “when read in context, there can be little doubt that Mr. Robertson’s pardon was intended to have limited effect with respect to his entitlement to veterans’ benefits.” Slip op. at 13. It notes that the petitioner “had not previously acquired any right to veterans’ benefits at the time of his pardon. In fact, whether Mr. Robertson might have been eligible for veterans’ benefits absent his 1967 AWOL conviction is entirely speculative because he had nearly a year remaining on his term of service at the time of his discharge.” Slip op. at 14. And it finds that under President Ford’s clemency program, “entitlement to veterans’ benefits under the program was meant to be the exception, not the rule.” Slip op. at 14.

The court concludes:

Nevertheless, pardoned individuals, like Mr. Robertson, remained eligible to apply for benefits from the VA and to appeal if the VA denied their applications. PCB Report 13. Similarly, applicants remained eligible to seek further upgrades to their discharge statuses from the appropriate military review boards. Id.; see also 10 U.S.C. § 1552 (1970). In fact, Mr. Robertson sought such an upgrade, but the ABCMR noted that “his record of service . . . did not meet the standards of acceptable conduct and performance of duty for Army personnel for the Board to grant his current request.” J.A. 574.

Slip op. at 15.

In a lengthy published opinion issued last month in United States v. Cron, No. 38138, 73 M.J. 718 (A.F.Ct.Crim.App. Jun. 27, 2014) (link to slip op.), the Air Force CCA affirms the adjudged and approved sentence of life without the possibility of parole for the appellant’s convictions, entered in accordance with his pleas of guilty, of conspiracy to commit premeditated murder, premeditated murder, and wrongfully impeding an investigation, in violation of Articles 81, 118, and 134. The appellant was also sentenced to reduction to E-1, total forfeitures, and a dishonorable discharge.

The CCA considers numerous thorny issues, ultimately finding no prejudicial error. The appellant, “a 30-year-old Staff Sergeant (SSgt) stationed at his fourth duty station,” brutally murdered his paramour’s husband, Technical Sergeant Eccleston. Slip op. at 2. The murder was planned with the victim’s wife, and the appellant tried to cover it up, but he eventually confessed and a capital referral followed. There were extensive PTA negotiations to avoid the possibility of a death sentence. The appellant’s third PTA offer was accepted, making the case non-capital but providing no other protections. In addition, the PTA included provisions that waived most objections, waived all waivable motions, waived discovery, waived continued funding for expert consultants, and required the appellant to answer questions about, and testify against, his paramour.

The appellant did not object to the PTA at trial, but on appeal he asserted that the PTA created “an ‘empty ritual’ rather than a full sentencing proceeding,” and that “the potential for the death penalty in this case caused a coercive environment during the PTA negotiations.” Slip op. at 11. The CCA rejects these arguments, explaining that “waiver of evidentiary objections is a permissible term of a pretrial agreement,” slip op. at 13 (marks and citations omitted), “a promise to testify as a witness in the trial of another person is a permissible term of a PTA,” slip op. at 14 (marks and citations omitted), “a criminal defendant may knowingly and voluntarily waive many of the most fundamental protections afforded by the Constitution,” slip op. at 15 (marks and citations omitted), and noted that because it was the appellant who proposed these terms, the court is “not inclined to deprive the appellant of the benefit of his bargain.” Slip op. at 15.

The PTA provisions were certainly broad (perhaps even to an unprecedented degree), but I think it’s hard to second-guess the appellant’s decision to agree to them. Still, one provision gets special attention from the CCA. The appellant agreed to “waive my right to all future discovery with the exception of discovery pursuant to Brady v. Maryland, 373 U.S. 83 (1963) and R.C.M. 701(a)(6) or any limitation by Rules for Courts-Martial (R.C.M.) 705(c)(1)(B).” Slip op. at 16. “The effect of the provision in this court-martial was that it limited the production of possible impeachment evidence.” Slip op. at 17. Specifically, the CCA notes that friends and family member of the victim who testified during the sentencing hearing said things “that indicated they had mental health records.” Slip op. at 16. However, “at best, the appellant proffers the mental health records may have revealed the witnesses had more than one reason for seeking counseling unrelated to the horrific and senseless murder of their friend.” Slip op. at 17. The court concludes that this “provision, as applied to this case, did not convert this proceeding into any empty ritual and did not violate public policy.” Slip op. at 17.

The CCA also considers the relationship between the military judge and the trial counsel. “The military judge was Colonel (Col) Vance Spath. An Article 39(a), UCMJ, 10 U.S.C. § 839(a), session was held on 28 November 2011. When the court-martial reconvened on 30 January 2012, Col Don Christensen had detailed himself as trial counsel.” Slip op. at 5. “Along with being trial counsel in the present case, Col Christensen was also the Chief of the Government Trial and Appellate Counsel Division (AFLOA/JAJG)—a position he continues to hold.” Slip op. at 6. The appellant argued that Col Christensen’s appellate duties creates a conflict of interest because he “defends the decisions of military judges and trial counsel” and particularly because he was defending the actions of Colonel Spath who served as the trial counsel in the capital case of United States v. Witt, No. 36785, __ M.J. __ (A.F.Ct.Crim.App. Jun. 30, 2014) (discussed here). The CCA rejects both this argument and a claim of ineffective assistance of counsel asserting that the trial defense counsel conducted insufficient voir dire of the military judge.

The court also rejects an assertion of error related to the trial counsel’s sentencing argument:

Trial counsel referred to the appellant as “a coward and a pathetic murderous person,” and to him and Ms. Eccleston [the victim's wife] as “two pathetic wastes of space.” Trial defense counsel objected and trial counsel countered that the appellant referred to himself as a coward and pathetic in his admitted confession. The military judge overruled the objection.

Slip op. at 18. The trial counsel also also referred to the victim’s wife as “a witch,” but the CCA notes that “evidence had earlier been introduced that Ms. Eccleston attempted to practice witchcraft and to cast a spell on her husband to hurt him.” Slip op. at 18 n.8. The CCA finds that “the arguments by trial counsel were well within bounds,” and that “the limited references to the appellant and his co-conspirator with disparaging terms were not outside the bounds of fair comment or beyond the norm.” Slip op. at 19.