The Government’s response opposing the petition for certiorari in Akbar v. United States, No. 15-1257 (CAAFlog case page) is available here.

Thanks to our friend for sending the brief.

Access restored this morning.

This week at SCOTUS: The Solicitor General filed the Government’s opposition to the cert petition in Akbar. I’m not aware of any military justice developments at the Supreme Court, where I’m tracking two cases:

This week at CAAF: CAAF has completed its oral argument calendar for the term. Details about this term’s cases are available on our 2015 Term of Court page.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Wednesday, August 10, 2016, at 10 a.m.:

United States v. Murphy, No. 20130333

Issue: Whether the military judge abused his discretion by denying the defense motion to compel production of expert assistance at trial.

This week at the AFCCA: As noted here, the AFCCA’s website is currently inaccessible. Update: The next scheduled oral argument at the Air Force CCA is on August 18, 2016.

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

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

CAAF’s website (and also the AFCCA’s website that is hosted on the same Air Force server) is currently inaccessible. The court is aware of the problem but has no estimate for its resolution.

In a motion filed yesterday and available here, the defense team in the Bergdahl case (CAAFlog news page) asks that the charges against him be dismissed with prejudice or alternatively that the court-martial be prohibited from adjudging any punishment in the event he is convicted.

The basis for the defense request is the statement of Senator John McCain, current Chairman of the Senate Armed Services Committee, that:

If it comes out that [SGT Bergdahl] has no punishment, we’re going to have to have a hearing in the Senate Armed Services Committee …. And I am not prejudging, OK, but it is well known that in the searches for Bergdahl, after-we know now-he deserted, there are allegations that some American soldiers were killed or wounded, or at the very least put their lives in danger, searching for what is clearly a deserter. We need to have a hearing on that.

Mot. at 6 (marks in original). The motion then asserts that:

It is difficult to imagine a more blatant threat to the fair administration of military justice than the one Sen. McCain uttered. That he never carried through on it – or hasn’t yet – is of no moment. The threat itself is the problem.

Mot. at 12 (emphases in original).

While McCain’s comment may require some corrective measure by the court-martial, it’s hard to see how granting either of the forms of relief requested by the defense would be anything less than an enormous windfall for Bergdahl (who functionally confessed to the desertion charge and then made numerous other damaging admissions to a journalist that were broadcast – with Bergdahl’s consent – by NPR in the Serial Podcast). The defense must have an awfully dim view of the intestinal fortitude of the Army leaders responsible for this case if it really believes that the mere threat of a hearing will necessarily and irreparably lead to unfairness in the court-martial proceedings.

The reaction of Simpsons character Monty Burns to the Germans seems closer to the true feelings of Army leaders in the face of McCain’s threat:

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: CAAF has completed its oral argument calendar for the term. Details about this term’s cases are available on our 2015 Term of Court page.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Wednesday, August 3, 2016, at 10 a.m.:

United States v. Ahern, No. 20130822

Issues:
I. [WHETHER] IT WAS PLAIN ERROR WHEN THE MILITARY JUDGE ALLOWED TRIAL COUNSEL TO ARGUE THAT APPELLANT FAILED TO DENY SEVERAL PRETRIAL ALLEGATIONS “BECAUSE HE WAS GUILTY.”

II. [WHETHER] IT WAS PLAIN ERROR WHEN THE MILITARY JUDGE PERMITTED TRIAL COUNSEL TO ARGUE THAT APPELLANT’S CONSULTATION WITH A CRIMINAL DEFENSE ATTORNEY WAS INDICATIVE OF HIS GUILT.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on August 18, 2016.

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

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

Yesterday CAAF was asked to review the Coast Guard CCA’s decision in H.V. v. Commander Kitchen, Military Judge, and Randolph, Real Party in Interest, __ M.J. __, Misc. Docket No. 001-16 (C.G. Ct. Crim. App. Jul. 8, 2016) (discussed here):

No. 16-0678/CG. Thomas J. Randolph, Appellant v. H.V., Appellee v. Cassie A. Kitchen, Commander, U.S. Coast Guard Military Judge, Respondent Below. Notice is hereby given that a writ-appeal petition for review of the decision of the United States Coast Guard Court of Criminal Appeals on application for extraordinary relief was filed under Rule 27(b) on this date.

The CCA’s decision in H.V. expanded the scope of Mil. R. Evid. 513 (the psychotherapist-patient privilege) to include “the psychotherapist’s conclusions (diagnoses) and resulting treatments.” Slip op. at 3.

The CCA’s involvement in the case, however, was upon a petition for a writ of mandamus made by the alleged victim. Such a writ petition is allowed by Article 6b(e) as amended by the FY15 National Defense Authorization Act (discussed here). Yet CAAF lacks jurisdiction for further appeal because Congress narrowly tailored the statute. See EV v. United States & Martinez, __ M.J. __, No. 16-0398/MC (C.A.A.F. Jun. 21, 2016) (CAAFlog case page).

The caption of the writ-appeal filed yesterday at CAAF (identifying the accused as the appellant and the alleged victim as the appellee) suggests to me that the appeal is of the CCA’s decision on the 6b(e) petition and not on a separate writ petition made by the accused himself. If that’s correct, then I suspect the writ-appeal will be dismissed for lack of jurisdiction.

That’s not to say that the accused is without options; he could seek his own writ from the CCA and then appeal that to CAAF. However, that does not seem to be what’s happening now.

After earlier this year substantiating its first case of reprisal against a sexual assault victim (see army Times here), various outlets reporting on the creation within the DoD IG’s Office of a sexual assault reprisal unit that will handle all complaints of reprisal against sexual assault victims.  See Stars and Stripes here and Federal  News Radio here.  FYI, this was one of the recommendations of the JPP, that DoD IG handle all sexual assault reprisal investigations.

In United States v. McClour, No. 16-0455/AF (grant discussed here), CAAF is reviewing the propriety of the Air Force instruction to members that commands them that they must (as opposed to the more-common instruction that members should) find the accused guilty if the prosecution has proven the offense beyond a reasonable doubt.

Last week CAAF specified the issue in a trailer case:

No. 16-0482/AF. U.S. v. Blake E. Taylor. CCA 38700. 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 issue specified by the Court:

WHETHER THE 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.

No briefs will be filed under Rule 25.

(emphasis added).

Season 2 of the popular NPR podcast Serial was about the Bergdahl case, and the source material for the podcast included recordings of post-recovery interviews between Bergdahl and filmmaker Mark Boal. Specifically, there are roughly 25 hours of recorded conversations (according to the podcast – link to episode transcript) discussing Bergdahl’s life, the reasons he left his unit, and his capture and captivity. Some of those recordings were played during the Serial podcast, and they included numerous damaging admissions by Bergdahl (some discussed here).

It’s unsurprising that Army prosecutors would seek to obtain those recordings are review them for additional evidence. Boal, however, is trying to prevent that.

In a case filed in the U.S. District Court for the Central District of California on July 20, 2016, Boal seeks to enjoin issuance or enforcement of a subpoena for the recordings. The case is Mark Boal et al. v. United States of America et al., docket # 2:16-cv-05407-GHK-GJS.

A copy of the complaint is available here. It argues, in part, that:

Issuance and enforcement of the Subpoena will irreparably harm Plaintiffs. Either Plaintiffs will be forced to reveal unpublished and unbroadcast segments of interviews gathered for news and public affairs reporting purposes, which include confidential information, or Plaintiffs will be subjected to contempt proceedings for their failure to do so. Disclosure will irreparably damage Plaintiffs’ ability to gather news and give sources and subjects confidence in their ability to keep materials confidential. Contempt proceedings will cause loss of liberty or property that is unwarranted and unconstitutional. In either event, Plaintiffs – third parties to the Bergdahl court martial – will be unduly burdened by the Subpoena and forced to expend substantial sums on counsel.

Complaint at 6-7.

Various media outlets have coverage of the suit, including the Wall Street Journal (blog), the New York Timesthe Los Angeles Times, and The Hill.

The Silver CAAF Tongue award, while lacking physical manifestation, is a life-changing honor bestowed upon the counsel who argued the most cases at CAAF during the term. Past winners can be seen here.

The 2015 Term winner is Mr. Gerald “Roger” Bruce. Mr. Bruce is a retired Air Force Colonel employed as the associate division chief of the Air Force Government Trial and Appellate Counsel Division, Air Force Legal Operations Agency (AFLOA/JAJG). Mr. Bruce argued three cases before CAAF this term:

  • United States v. LaBella, 75 M.J. 52 (C.A.A.F. Dec. 11, 2015) (CAAFlog case page),
  • United States v. Williams, 75 M.J. 244 (C.A.A.F. May 3, 2016) (CAAFlog case page), and
  • United States v. Witt, __ M.J. __, No. 15-0260/AF (C.A.A.F. Jul. 19, 2016) (CAAFlog case page).

Of those three cases, the Government won one (LaBella).

Congratulations to Mr. Bruce!

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: CAAF has completed its oral argument calendar for the term. Details about this term’s cases are available on our 2015 Term of Court page.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on August 3, 2016.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on August 18, 2016.

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

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

Our #5 Military Justice Story of 2013 was the Wilkerson court-martial and its effects. Air Force Lieutenant General Craig Franklin exercised his authority under Article 60(c) to set aside the sexual assault conviction of Air Force Lieutenant Colonel James Wilkerson in 2013, and it was a military justice shot heard round the world. A frenzy of criticism erupted, and Congress ended the year by strictly curbing a convening authority’s previously unfettered ability to reduce the findings or sentence of a court-martial.

Another case involving General Franklin’s exercise of his authority (this time to dismiss a case before trial) resulted in a transfer of the case, defense claims of unlawful command influence, and eventually an acquittal on the merits.

The next chapter in this saga is CAAF’s order from Tuesday granting review:

No. 16-0546/AF. U.S. v. Rodney B. Boyce. CCA 38673. 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 issue specified by the Court:

THE CHIEF OF STAFF OF THE AIR FORCE ADVISED THE CONVENING AUTHORITY THAT, UNLESS HE RETIRED, THE SECRETARY OF THE AIR FORCE WOULD FIRE HIM. WAS THE CONVENING AUTHORITY’S SUBSEQUENT REFERRAL OF CHARGES UNLAWFULLY INFLUENCED BY THE THREAT TO HIS POSITION AND CAREER?

Briefs will be filed under Rule 25.

The convening authority? Lieutenant General Franklin.

Read more »

CAAF decided the certified Marine Corps case of United States v. Howell, __ M.J. __, Nos. 16-0289/MC & 16-0367/MC (CAAFlog case page) (link to slip op.) on Tuesday, July 19, 2016. Unanimously affirming that a CCA has jurisdiction to consider a Government petition for extraordinary relief under the All Writs Act, CAAF splits 3-2 to find that the military judge erred in finding that the Government violated the Article 13 prohibition against pretrial punishment in connection with a pay dispute. CAAF remands the case back to the NMCCA for further consideration of the Government’s request for a writ of prohibition to prevent application of the military judge’s award of 343 days of confinement credit.

Judge Sparks writes for the court (in his first opinion), joined by Senior Judge Lamberth of the United States District Court for the District of Columbia (sitting by designation). Judge Stucky writes separately, concurring in the result. Judge Ohlson dissents from the result, joined by Chief Judge Erdmann, both of whom would find that Article 13 was violated.

CAAF reviewed four issues certified by the Judge Advocate General of the Navy; one certified at the request of the Defense and three certified at the request of the Government:

Defense issue:
I. Whether the Government may invoke Article 66, UCMJ, as the jurisdictional basis for an extraordinary writ pursuant to the All Writs Act when the issue is not included as a basis for Government appeal under Article 62, UCMJ?

Government issues:
II. Whether the military judge, in finding an Article 13, UCMJ, violation, exceeded his authority by rejecting applicable holdings of the U.S. Court of Appeals for the Federal Circuit and the Court of Federal Claims, in order to conclude that appellee was entitled to pay at the A-6 rate pending his rehearing?

III. Whether the lower court erred by concluding that the setting aside of appellee’s findings and sentence rendered his reduction to pay grade E-1 prospectively unexecuted pending rehearing?

IV. If a member’s original sentence includes an executed reduction to pay grade E-1 and the sentence is subsequently set aside, does the action of paying that member at the E-1 rate pending rehearing constitute illegal pretrial punishment in the absence of any punitive intent?

This case was included in our #4 Military Justice Story of 2014, as the appearance of unlawful command influence led to the reversal of Staff Sergeant Howell’s conviction of sexual assault. A rehearing was authorized. Howell was restored to his rank of E-6 and to full duty pending that rehearing, however he was only paid at the E-1 rate (based on the Government’s interpretation of the applicable military pay statutes and Article 75(a) which addresses restoration after a court-martial is set aside).

Howell complained and the military judge agreed that he was entitled to be paid as an E-6, finding that the Government’s actions constituted illegal pretrial punishment in violation of Article 13. As a remedy the military judge ordered that Howell receive credit against any sentence to confinement in the form of one day of confinement credit for each day of pay at the E-1 rate.

The rehearing proceeded and Howell was convicted and sentenced to confinement for nine years, reduction to E-1, total forfeitures, and a dishonorable discharge. The military judge’s ruling resulted in 343 days of confinement credit due to Howell. But then, prior to the convening authority taking action, the Government filed a petition for a writ of prohibition at the Navy-Marine Corps CCA seeking to reverse the military judge’s award of confinement credit. The NMCCA stayed the post trial proceedings and (in an opinion discussed here) granted the Government petition in part, reducing the award of credit to 308 days. The Judge Advocate General of the Navy then certified the case to CAAF.

With yesterday’s opinion CAAF overwhelmingly affirms the Government’s ability to seek such relief, and narrowly interprets Article 13 to require evidence of actual intent to punish (and not merely punitive effect).

Read more »

The Washington Post has made a significant disclosure in the ongoing case of Marine Major Mark Thompson (CAAFlog news page), who faces a second general court-martial after he invited the Post to look into his case: It published the audio of the final interview between Thompson and the Post reporter.

During a 45-minute interview in January — previously excerpted and now published in full online — reporter John Woodrow Cox showed Thompson copies of the text messages he uncovered and repeatedly asked Thompson why he had lied about Stadler’s late-night visit to his Annapolis home during her graduation weekend.

“I simply had to,” Thompson said in the recorded interview. “When they were coming after me for 41 years, I can’t begin to say, you know, how terrifying that is.”

If he’d been convicted of the rape charge, he might have faced a sentence that long. During the interview, Thompson continued to maintain that he had not had sex with either woman and offered more explanation for not divulging the text messages.

“If I were to say, acknowledge that I thought they were flirtatious, that moved me on the scale closer towards, well, it was probably a relationship,” he said. “So I avoided anything that looked like it could be unduly familiar or flirtatious.”

When Cox again pressed Thompson on why he’d lied, the Marine asserted that he was “never questioned” about his final encounter with Stadler. The reporter reminded Thompson that he had been asked about it both at the administrative hearing and “multiple times” by The Post.

“I simply wanted to distance myself,” Thompson said, “from anything that would look like there was more familiarity than there was.”

Article here. Audio here.

The audio is somewhat difficult to understand because of background noise.

The article also discusses one of the charges against Major Thompson: that he engaged in conduct unbecoming in violation of Article 133 by misleading the Post reporter.