This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court.

This week at CAAF: CAAF will hear oral argument in two cases this week, both on Tuesday, May 12, 2015, beginning at 9 a.m.:

United States v. Sullivan, No. 15-0186/CG (CAAFlog case page)

Issues:
I. Whether the Government carried its burden of proving that the convening authority’s categorical exclusion of all flag officers was harmless.
II. Whether the military judge abused his discretion in denying challenges from both parties to his impartiality based on prior personal relationships with individual military counsel, the accused, trial counsel, several members, several witnesses, and the staff judge advocate.

Case Links:
CGCCA opinion
Blog post: Analysis of CGCCA opinion
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview

United States v. Quick, No. 15-0347/MC (CAAFlog case page)

Issue: Whether precedent authorizing courts of criminal appeals to order sentence-only rehearings should be overruled based on: (a) Jackson v. Taylor, 353 U.S. 569 (1957), which stated “no [such] authority” exists; (b) the plain language of the statute including the conjunctive “findings and sentence” in Article 66(d) in contrast to authority granted the judge advocates general in Article 69(a) to act with respect to “findings or sentence or both” and the convening authority in Article 60(f)(3) to order sentence rehearings; and, (c) judicial economy.

Case Links:
NMCCA opinion
Blog post: Analysis of NMCCA opinion
Appellant’s (Government) brief
Appellee’s brief
Appellant’s (Government) reply brief
Amicus brief: Air Force Appellate Defense Division
Amicus brief: Air Force Appellate Government Division
Amicus brief: Goast Guard Appellate Government Division
Blog post: Argument preview

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Thursday, May 14, 2015, at 9:30 a.m.:

United States v. Hills, No. 20130833

Issue: Whether the military judge abused his discretion by granting the Government’s motion to use the charged sexual misconduct for Military Rule of Evidence 413 purposes to prove propensity to commit the charged sexual conduct.

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.

CAAF will hear oral argument in the certified Marine Corps case of United States v. Quick, No. 15-0347/MC (CAAFlog case page), on Tuesday, May 12, 2015. The Judge Advocate General of the Navy certified the case to CAAF in order to challenge the court’s longstanding precedent that permits a court of criminal appeals to order a rehearing on only the sentence adjudged by a court-martial, with the following issue:

Whether precedent authorizing courts of criminal appeals to order sentence-only rehearings should be overruled based on: (a) Jackson v. Taylor, 353 U.S. 569 (1957), which stated “no [such] authority” exists; (b) the plain language of the statute including the conjunctive “findings and sentence” in Article 66(d) in contrast to authority granted the judge advocates general in Article 69(a) to act with respect to “findings or sentence or both” and the convening authority in Article 60(f)(3) to order sentence rehearings; and, (c) judicial economy.

Appellee was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of conspiring to distribute an indecent visual recording, wrongfully viewing an indecent visual recording, and indecent conduct in violation of Articles 81, 120c, and 134. He was sentenced to confinement for six months, reduction to E-3, and a bad-conduct discharge. But on review, in what I called a significant published decision from the NMCCA interpreting Article 120c (2012) in this post, the NMCCA concluded that the offense of indecent viewing requires that an accused actually view the real-life private area of a person, and the court reversed Appellee’s indecent viewing conviction that was based on merely viewing a recording (made surreptitiously) of another person’s private area.

The CCA then remanded the case for a rehearing on the sentence. This seemingly-innocuous procedure returns the case to the convening authority who then has the option to either refer the case to a new court-martial (that may be composed of members or of a military judge alone, depending on the election of the accused) to adjudge another sentence, or to forego another sentence and approve a sentence of no punishment. See R.C.M. 810; R.C.M. 1107(e)(1)(C)(iii).

Sentence rehearings are nearly as old as the UCMJ itself, as the Court of Military Appeals (now known as CAAF) held in United States v. Miller, 10 C.M.A. 296, 299 (C.M.A. 1959), that:

a rehearing limited to sentence alone may be an appropriate and permissive remedy for the cure of errors not affecting findings.

And while innumerable sentence rehearings occurred on the half-century since Miller was decided, CAAF also reaffirmed Miller in its recent opinion in United States v. Winckelmann, 73 M.J. 11, 14 (C.A.A.F. 2013) (CAAFlog case page), though the court was divided on this issue, with Judges Stucky and Ryan practically inviting a Government challenge to end the practice in separate concurring opinions in that case.

In Quick, the Government makes that challenge.

Read more »

CAAF will hear oral argument in the Coast Guard case of United States v. Sullivan, No. 15-0186/CG (CAAFlog case page), on Tuesday, May 12, 2015, at 9 a.m. The case involves the conviction of a senior Coast Guard Captain (O-6), with 27 years of service, of wrongful use of cocaine, and CAAF will consider two issues:

I. Whether the Government carried its burden of proving that the convening authority’s categorical exclusion of all flag officers was harmless.

II. Whether the military judge abused his discretion in denying challenges from both parties to his impartiality based on prior personal relationships with individual military counsel, the accused, trial counsel, several members, several witnesses, and the staff judge advocate.

Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of a single specification of wrongful use of cocaine in violation of Article 112a. He was sentenced to pay a $5,000 fine and to be reprimanded. That sentence did not trigger automatic review by the CCA, but the Judge Advocate General of the Coast Guard referred the case to the court under Article 69(d). The CCA issued an unpublished opinion last September (discussed here) affirming the findings and sentence, and then CAAF granted review.

The factual basis for the issues that CAAF will review are closely tied to Appellant’s status as a senior Coast Guard officer. The court-martial members selected by the convening authority for Appellant’s trial were all Captains (like Appellant):

Before signing the convening order, the convening authority told his staff judge advocate (SJA) and Deputy SJA that he in-tended to exclude all flag officers from the panel. In a stipulation of expected testimony, the par-ties agreed that the convening authority, if called to testify under oath, would say that he excluded flag officers because of their busy schedules. However, as found by the military judge, the convening authority made no effort to deter-mine whether flag officers would be in fact available for the court-martial.

App. Br. at 3 (citations to record omitted). But Appellant raised this issue at trial, and the military judge rejected it, ruling that:

The convening authority’s consideration of flag officer availability for court member duties was motivated by a desire to select members who would actually serve on the panel, as opposed to officers who would be detailed and then excused because they were not available. There is no evidence of a desire or attempt to stack the court.

Gov’t Br. at 4 (quoting ruling). The judge also found that assuming an improper selection of members, any error was harmless.

The factual basis for the second issue is that both the Government and the Defense moved for the military judge to disqualify himself based upon his personal relationships with the trial participants. These relationships were the product of the small size of the Coast Guard, and particularly the Coast Guard judge advocate community. The military judge refused to refuse himself, but he did independently (though unsuccessfully) seek out a replacement judge to preside over Appellant’s court-martial.

Read more »

CAAF granted review in the following case on Thursday, April 30:

No. 15-0140/AR. U.S. v. Henry L. Williams III. CCA 20130284.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER APPELLANT COMMITTED LARCENIES OF THE PROPERTY OF TWO SOLDIERS BY USING THEIR DEBIT CARD INFORMATION WITHOUT AUTHORITY. SEE UNITED STATES v. LUBASKY, 68 M.J. 260 (C.A.A.F. 2010).

Briefs will be filed under Rule 25.

The Army CCA’s opinion is available here. I discussed that opinion in this post last September, but my focus was on the CCA’s finding of plain error in the military judge’s questions to a sentencing witness. However, on the larceny issue, the CCA found:

Electronic commerce and the related increased possibility of larceny by identity-theft have perhaps prompted the following 2002 amendment to the Manual for Courts-Martial: “Wrongfully engaging in a credit, debit, or electronic transaction to obtain goods or money is an obtaining-type larceny by false pretense. Such use to obtain goods is usually a larceny of those goods from the merchant offering them.” MCM, pt. IV, ¶ 46.c(1)(h)(vi). The Drafter’s Analysis includes the proviso that “[a]lternative charging theories are also available . . . . The key under Article 121 is that the accused wrongfully obtained goods or money from a person or entity with a superior possessory interest.” MCM, UCMJ art. 121 analysis at A23-15–A23-16 (internal citations omitted).

Our superior court has clearly affirmed both of these principles. See United States v. Cimball Sharpton, 73 M.J. 299 (C.A.A.F. 2014); United States v. Lubasky, 68 M.J. 260 (C.A.A.F. 2010). In Cimball Sharpton, CAAF considered a larceny by credit card and held that an alternative charging theory—naming a victim other than the merchant or bank—was viable. 73 M.J. at 301-02. In Lubasky, CAAF stated: “Under Article 121, UCMJ, larceny always requires that the accused wrongfully obtain money or goods of a certain value from a person or entity with a superior possessory interest.” 68 M.J. at 263 (emphasis added). The CAAF also recently reaffirmed that the “victim of the larceny is the person or entity suffering the financial loss or deprived of the use or benefit of the property at issue.” Cimball Sharpton, 73 M.J. at 299 (citing Lubasky, 68 M.J. at 263-64).

Appellant now argues that in Specifications 1 and 2 of Charge VI, “the unauthorized use of the debit card information was a common ‘obtaining-type larceny by false pretense’ where the property owner would be either the bank or merchants depending upon who suffered the loss.” (Emphasis added). We partially agree to the extent that appellant draws our focus to the person or entity who suffers the loss in a larceny. We disagree with appellant that the banks or merchants were the only potential victims of appellant’s misconduct. Indeed, PFC BI and SPC JA were actual victims in this case. Appellant caused the movement of their money from their control, intending to permanently deprive them and actually depriving them of its use and benefit. Like in Cimball Sharpton, we hold that under the facts of this case, alternative charging theories were available and PFC BI and SPC JA were properly described as victims in the contested larceny specifications.

Slip op. at 8.

I think it very likely that the Army CCA will be reversed, for reasons I’ve written about repeatedly (such as in my analysis of the Army CCA’s decisions in Endsley and Conway).

In an unpublished opinion in United States v. Edmond, No. 201200168 (N-M. Ct. Crim. App. Apr. 30 2015) (link to slip op.), a three-judge panel of the Navy-Marine Corps CCA reverses a midshipman’s 2011 court-martial convictions for making a false official statement, two specifications of rape, two specifications of aggravated sexual assault, and wrongful sexual contact, in violation of Articles 107 and 120 (press accounts here and here), after concluding that “the appellant was not afforded effective assistance of counsel as guaranteed by the Sixth Amendment.” Slip op. at 19.

Specifically, writing for a unanimous panel, Chief Judge Mitchell finds that:

In the appellant’s case, the evidence was not overwhelming. While there was some medical evidence of bruising supporting the alleged victim’s account of the sexual contact, this case ultimately boiled down to the issue of credibility. It was on this point that the trial defense team failed in several significant ways summarized as follows:

(1) The defense team failed to effectively cross-examine the alleged victim in that it had evidence of inconsistent statements made by XM during the Article 32 Investigation that differed significantly from her testimony at trial but had no mechanism in place to challenge her on cross-examination;

(2) While the trial defense team planted the seed in the minds of the members that the alleged victim told MIDN B yet another account of the sexual assault, they forgot to follow up with this line of questioning after calling her as a witness;

(3) The trial defense team’s attempt to bolster their client’s credibility had the opposite effect when they asked MIDN B if she thought the appellant was trustworthy and she responded in the negative; and

(4) Finally, while we do not second-guess the defense’s tactical decision to put the appellant on the stand, the record strongly suggests that they did so without fully considering or advising him of the ramifications of doing so, including opening the door to the use of his previously suppressed statement, which was replete with inconsistencies, as impeachment evidence.

Based on the foregoing, we have little difficulty concluding that the trial defense team’s level of advocacy fell “measurably below the performance [] (ordinarily expected) of fallible lawyers.” Polk 32 M.J. at 153 (citation omitted).

Slip op. at 17-18. The CCA authorizes a rehearing.

This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court.

This week at CAAF: The next scheduled oral argument at CAAF is on May 12, 2015.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Wednesday, May 6, 2015, at 10:00 a.m.:

United States v. Cannon, No. 20130415

Issues:
I. Whether the military judge abused his discretion in failing to grant the defense request to appoint an expert assistant in the area of coercive law enforcement interrogation techniques which may have led to a false confession
II. Whether the military judge committed plain error by admitting an “inadmissible” rock and an “inadmissible” presumptive positive test regarding the rock?

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.

CAAF decided the Marine Corps case of United States v. Norman, __ M.J. __, No. 14-0524/MC (CAAFlog case page) (link to slip op.), on Wednesday, April 29, 2015. The court finds that the military judge erred in admitting lay opinion testimony about the service discrediting nature of Appellant’s alleged child endangerment by culpable negligence, but that Appellant’s conviction is nevertheless legally sufficient because of other evidence in the record that may have been considered by the members, even though the trial counsel didn’t argue it. The court affirms the opinion of the Navy-Marine Corps CCA that affirmed the findings and sentence.

Chief Judge Baker writes for a unanimous court.

CAAF granted review of one issue:

Whether the conviction for child endangerment by culpable negligence is legally insufficient when the only testimony offered to prove its service discrediting nature was admitted in error.

Appellant – a sergeant in the Marines – was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of a single specification of child endangerment by culpable negligence in violation of Article 134, charged as service discrediting conduct. In the same trial Appellant was acquitted of four specifications of aggravated assault in violation of Article 128, UCMJ, and four additional specifications of child endangerment by design and/or by culpable negligence in violation of Article 134. The members sentenced Appellant to confinement for sixty days, reduction to E-1, and a dishonorable discharge.

The sole conviction for child endangerment related to burns suffered by Appellant’s infant child while Appellant was giving the child a bath. The child suffered second and third-degree burns, and “was treated for fifty days at the Maricopa Burn Center, undergoing seven surgeries to excise his burnt skin and receive skin grafts for his third-degree burns.” Slip op. at 5-6. There were no witnesses to the incident, but Appellant made statements to law enforcement in which he first stated that he ran the water at “full cold,” and then subsequently stated that he “turned the handle of the faucet to approximately the 9:00 position” and left the child in the water for 30-45 seconds. Slip op. at 4-5 (marks omitted). Yet investigation revealed that with the faucet at the 9 o’clock position, the water temperature in Appellant’s bathroom was only 115 degrees Fahrenheit, and an expert testified that at that temperature “clearly exposure is going to need to last much more than ten minutes in order to produce a third-degree burn in an adult.” Slip op. at 20 (marks omitted).

As charged in this case, the offense of child endangerment by culpable negligence has four elements:

  1. That the accused had a duty for the care of a certain child;
  2. That the child was under the age of 16 years;
  3. That the accused endangered the child’s mental or physical health, safety, or welfare through design or culpable negligence; and
  4. That, under the circumstances, the conduct of the accused was of a nature to bring discredit upon the armed forces.

Manual for Courts-Martial, United States, pt. IV, ¶ 68a (2012). To prove the element that the conduct was of a servicing discrediting nature, the Government presented the lay testimony of a Marine staff sergeant (and military policeman) to opine on “whether Appellant’s conduct was of a nature to bring discredit upon the armed forces.” Slip op. at 6. The defense objected to the testimony but the military judge permitted it.

CAAF finds that the military judge abused his discretion in permitting the testimony of the staff sergeant. Nevertheless, CAAF affirms Appellant’s conviction by concluding that “a rational trier of fact could have instead determined that Appellant turned the faucet handle to the hottest setting and then left his child unattended for 30 to 45 seconds.” Slip op. at 22. The court reaches this conclusion despite the fact that “trial counsel made no mention of the terminal element during closing arguments, omitting any mention of [the staff sergeant’s] testimony or any other evidence supporting this element, leaving this Court to evaluate each piece of evidence post hoc, on the basis of a cold record.” Slip op. at 22 n.5.

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In a published decision in United States v. Chandler, __ M.J. __, No. 20120680 (A. Ct. Crim. App. Apr. 7, 2015) (link to slip op.), the Army CCA finds that a military judge improperly held a post-trial proceeding in revision for the purpose of giving corrected instructions to the members, and allowing them to deliberate anew, on the findings.

The judge improperly instructed the panel on the defense of mistake of fact as to the nature of property at issue in an alleged conspiracy to commit larceny, giving the general intent mistake instruction (requiring that the mistake be objectively reasonable) instead of the specific intent mistake instruction (requiring only that the mistake actually exist). The appellant was then convicted. But the judge realized the mistake when authenticating the record, and ordered a proceeding in revision under R.C.M. 1102, stating:

My proposal will be to reinstruct the members and direct them to once again deliberate on findings in light of the corrected instruction. I will also give counsel an opportunity to re-argue on findings in light of the corrected instruction. Obviously, if there are different findings, the members will also deliberate and vote on a new sentence, provided the accused is found guilty of any offense.

Slip op. at 7. The proceeding occurred, the members were properly instructed, and they again convicted the appellant. But the CCA finds that the post-trial proceeding was void ab initio:

We can think of no matters more substantive than the defenses potentially applicable to a servicemember facing court -martial. Instead of resolving an administrative matter, the post -trial proceeding here more closely resembled a rehearing, but with the same panel—which the judge had no authority to order. The military judge likely understood that his approach was somewhat akin to a rehearing, as he invoked the sentence limitations provisions of R.C.M. 810(d). The hearing could also be viewed as a flawed attempt at reconsideration of findings, for which R.C.M. 924 governs. Contrary to R.C.M. 924, the proceeding occurred after the panel unambiguously announced findings on 10 July 2012, and it occurred at the military judge’s direction instead of a panel member’s proposal.

We endorse initiative-taking by military judges. Such an approach is crucial in our justice system, which favors resolution of disputed issues at trial. We also understand the desire for quickly reaching a solution in the field, instead of waiting for a convening authority or an appellate court to order the same solution. However, our system’s range of post-trial remedies does not include remand to an original finder of fact in order to cure instructional error. This limitation is understandable, since one cannot reasonably expect panel members to set aside their original findings and deliberate anew. Put another way, as the post -trial proceeding began in this case, it was far more likely that the panel would simply validate its earlier findings of guilt; we cannot affirm such a process. Instead, we conclude the military judge erred in directing a proceeding in revision for the purposes of correcting erroneous instructions and directing the same panel to deliberate again. We regard this proceeding as void ab initio under the circumstances and need not address additional procedural peculiarities, including the military judge’s emailing a redacted record of trial to the panel and his denying the defense request to voir dire the panel.

Slip op. at 15-16. Nevertheless, the CCA finds the instructional error harmless.

Audio of today’s oral argument in United States v. McIntosh, No. 14-0685/AF (CAAFlog case page), is available at the following link: Oral argument audio.

Yesterday CAAF granted review of two issues in the Marine Corps case of United States v. Hoffman, No. 15-0361/MC:

No. 15-0361/MC. U.S. v. Matthew P. Hoffmann. CCA 201400067. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

I. WHETHER THE SEARCH AND SEIZURE OF THE PERSONAL ITEMS OF AN INDIVIDUAL WHERE THE SEARCH WAS INITIALLY GRANTED BY CONSENT, BUT LATER REVOKED BEFORE THE SEIZURE OF ITEMS, VIOLATED THE FOURTH AMENDMENT OF THE CONSTITUTION.

II. THE APPELLANT WAS CHARGED WITH CRIMES INVOLVING CHILD ENTICEMENT. THE NMCCA FOUND A SEARCH FOR A SEPARATE CRIME, CHILD PORNOGRAPHY, WAS SUPPORTED BY PROBABLE CAUSE BASED SOLELY ON THE CHILD ENTICEMENT ALLEGATIONS. IN DOING SO, THE NMCCA RELIED ON A MINORITY OPINION IN FEDERAL CASE LAW AND APPLIED IT INCORRECTLY. SHOULD THIS COURT REVERSE?

Briefs will be filed under Rule 25.

Sam analyzed the NMCCA’s opinion in this post.

In an unpublished opinion in United States v. Sabia, No. 20150225 (C.G. Ct. Crim. App. Feb. 25, 2015) (link to slip op.), the Coast Guard CCA contemplates the appropriateness of a sentence of confinement for 150 days, reduction to E-2, and a bad-conduct discharge for the offense of wrongfully communicating a threat, such conduct being to the prejudice of good order and discipline in the armed forces, in violation of Article 134. The convening authority disapproved the adjudged confinement. The opinion doesn’t provide the precise details of the specification, but it indicates that the appellant made some sort of threatening statement to military leaders at Port Angeles whom he did not know, had never met, could not identify, and didn’t threaten by name.

In an opinion written by Chief Judge McClelland, the CCA affirms the sentence as approved. But it seems to be a close call. In particular, a concurring opinion written by Judge Duignan notes that:

Appellant, who was having medical problems, found himself in an escalating chain of circumstances that ultimately led to his court-martial. Homeless, and living out of his car in the Pacific Northwest, Appellant needed help. The record indicates that his command knew of his situation, and might have done more to intervene. Appellant’s threats—although treated with appropriate seriousness by his command—were essentially a cry for help. No one at the command believed that Appellant truly wanted to harm his chain of command. Rather, the record indicates that Appellant was essentially disconnected from his command altogether.

Slip op. at 3.

In a December 3, 2014 memo, here, SecDef required the service secretaries to provide the findings of the 2014 “Department of Defense Report to the President of the United States on Sexual Assault Prevention and Response” to servicemembers, stating:

To encourage greater victim reporting and demonstrate Department and Service progress, the Secretaries of the Military Departments will provide the findings in the [20 14 “Department of Defense Report to the President of the United States on Sexual Assault Prevention and Response”] to all Service members in an interactive manner. Please report your execution plan to the Under Secretary of Defense for Personnel and Readiness by January 30, 2015.

The Report is available here, under the Tab for “Report to the President.”  The findings of the Report and the guidance are now being rolled out within DoN.  Here is at least one of the presentations that will be making the rounds within DoN and a related guidance memo, here.  Here are a few of MilJus highlights from the presentation:

• Commander Accountability – Leaders must cultivate or maintain command climates where improper discrimination of any kind, destructive behaviors and other inappropriate conduct is not tolerated and professionalism is the norm.

• Military Justice System Reforms – Reforms have also expanded legal representation and protections for victims’ interest, rights and privacy.

• Victims’ Legal Counsel – Provides victims a lawyer (not the prosecutor) to represent their specific interests.

The related memo emphasizes the Victim’s Legal Counsel program:

New, groundbreaking legal resource that provides advice and assistance to sexual assault victims in understanding and participating in the military justice system. VLCs, upon request of their clients, advocate on behalf of victims at pre‐trial motions hearings and Article 32 investigations, and are present at courts-martial to answer questions and prepare victims for their testimony.

Other services have similar training being released?

Read more »

In United States v. Saunders, No. 2014-15 (A.F. Ct. Crim. App. Apr. 17, 2015) (link to slip op.), the AFCCA grants a Government appeal of a military judge’s ruling that dismissed various charges, including sexual assault charges, against an Air Force Master Sergeant accused of improprieties involving his subordinates. The military judge:

concluded [that] the [accused] had met his burden of raising “some evidence” of apparent unlawful command influence in how the case was brought to trial. He found this burden was met by the following facts which, in his view, constituted “some evidence” of unlawful command influence:

(1) The [accused’s] commander held a meeting before trial where he stated that anyone who violated the UCMJ would be removed from the duty section, and then the [accused] was removed from the duty section; and

(2) The accused testified about statements made by the commander to the effect of, “How would I look to leadership if I did not push this issue?”

After shifting the burden to the government, the military judge stated in both rulings that he was “not convinced beyond a reasonable doubt that the comments upon which [he] based [his] determination (1) are not true, (2) do not constitute unlawful command influence, or (3) will not affect the proceedings.” He also stated:

In consideration of all the evidence considered on the matter, the inherent probability or improbability of the testimony, whether the testimony is supported or contradicted by other evidence in the case, and the credibility of the witnesses, this Court is not convinced beyond a reasonable doubt that the preferral of charges in this case was not tainted by the danger of Unlawful Command Influence.

The military judge did not expressly elaborate on how these facts constituted apparent unlawful command influence relative to the case.

Slip op. at 10. Notably, the CCA notes that the military judge “concluded the commander had expressed his determination of the appellee’s guilt through his statement at the duty section and the subsequent removal of the appellee.” Slip op. at 11. As a remedy, the military judge dismissed the charges with prejudice.

The CCA reverses, finding that the military judge abused his discretion by dismissing the charges with prejudice, “even if the facts found by the military judge rise to the level of apparent command influence.” Slip op. at 12. The court concludes that “because the military judge did not fully discuss the alternative remedies and it is not clear to us that those alternatives would have been insufficient to restore public confidence in the case, we find he abused his discretion by choosing the ‘last resort’ option of dismissal with prejudice.” Slip op. at 13 (citation omitted).

Audio of today’s oral arguments at CAAF is available at the following links:

United States v. Murphy, No. 14-0767/AR (CAAFlog case page): Oral argument audio.

United States v. Stellato, No. 15-0315/AR (CAAFlog case page): Oral argument audio.

United States v. Schloff, No. 15-0294/AR (CAAFlog case page): Oral argument audio.

We learned that NIMJ founder and former Navy Judge Advocate General RADM (ret.) John Smith Jenkins, JAGC, USN, has passed away.  In addition to serving as the Navy JAG from 1980-82 he was a member of the Cox Commission on military justice and a leader in the area of military justice reform.