This week at SCOTUS: Two jurisdictionless pro se cert petitions were docketed last week. The first was in Hatley v. United States, No. 14-5131. CAAF denied petitioner’s writ-appeal on April 1, 2014. This is the petitioner’s second attempt to obtain Supreme Court review of his case; the first was discussed here (and details of his court-martial are here and here). The second petition filed last week was in Manciagonzalez v. United States, No. 14-5146. CAAF denied review on January 13, 2014. The NMCCA rejected a factual and legal sufficiency challenge in an opinion available here. The petition was actually filed back in March, but was docketed on July 10.

I’m not aware of any other military justice developments at the Supreme Court, where I’m now tracking five 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.

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.

A little off topic.

Capt Magee recently reported for duty at Navy Appellate Defense.

http://www.marinecorpstimes.com/article/20140711/NEWS/307110058

Older former NADC’s should be familiar with Leg Day.  There is a picture of at least one, with a couple of recognizable figures.

Magee will fit right in with a hoppy leg day.

Two weeks ago, in this post, I discussed the Army CCA’s unpublished opinion in United States v. Hardin, No. 20120051 (A.Ct.Crim.App. Jun. 12, 2014) (link to unpub op.), in which the court found the appellant’s conviction for housebreaking to be legally sufficient but factually insufficient because the court was not convinced that the appellant’s entry into a bedroom was itself unlawful.

Shortly after the CCA decided Hardin, it issued a published decision in United States v. Schwin, No. 20130538, __ M.J. __ (A.Ct.Crim.App. Jun. 26, 2014) (link to slip op.), finding that the military judge erred in accepting the appellant’s plea of guilty to housebreaking for entering into the base skeet club building from which the appellant stole money. The appellant was a member of the Fort Rucker Skeet and Trap Club (a private organization). The club had a building on Fort Rucker that members could access 24 hours a day, and as a club member the appellant had authorized access to this building.

Using his authorized access, the appellant entered the building and stole money from a locked deposit box where members would pay shooting fees when utilizing the facility while no staff were present. For this theft he was charged with and pleaded guilty to one specification each larceny and housebreaking, at a special court-martial composed of a military judge alone. He also pleaded guilty to two specifications of violation of a general regulation for wrongfully maintaining privately owned firearms in his barracks and vehicle. He was sentenced to confinement for four months, reduction to E-1, and a bad-conduct discharge.

Housebreaking requires two elements: An unlawful entry and the intent to commit a crime therein. The Government’s theory of the housebreaking charge in this case was that:

[I]t’s an unlawful entry because of [appellant's] intent. He went in on this occasion … used his key, though it was issued— with the sole intent of committing a crime … [which] does constitute housebreaking. Though he had lawful access, the fact that he used his lawful access … to gain access for unlawful purposes constitutes housebreaking.

Slip op. at 6 (emphasis added). Accepting this theory during the plea inquiry, the military made a finding that:

[Appellant] did not have permission to enter the building for an illegal purpose, and certainly did not have permission to enter the building to perpetrate a theft once inside. So for the purpose of considering whether or not the factual scenario meets the criteria for housebreaking, the Court accepts the conclusions of counsel and [appellant] that this does constitute housebreaking.

Slip op. at 7. But the CCA reverses on the basis that “unlawful entry is not established through a showing of mere ingress with contemporaneous criminal intent.” Slip op. at 4 (quoting United States v. Williams, 15 C.M.R. 241, 246 (C.M.A. 1954)) (marks omitted). In other words, to gain access for unlawful purposes does not constitute housebreaking. The court explains that unlawful entry “is distinct from the second element of specific intent to commit a crime upon entry.” Slip op. at 4. And on the fact of this case it finds:

[T]he fundamental legal question to be answered [is]: absent the offense committed therein, was appellant’s entry unlawful—that is, did he trespass? In this case, appellant did not trespass when he entered the club. If appellant had not committed larceny, his entry, presence, and activities in the Skeet Club were authorized, permitted, and invited. Appellant is not guilty of housebreaking, but certainly guilty of larceny.

Slip op. at 8 (citation omitted). The court therefore reverses the appellant’s housebreaking conviction and grants a slight reduction to the sentence to confinement (meaningless to the appellant as the time was undoubtedly already served).

CAAF decided the Army case of United States v. Flesher, No. 13-0602/AR, __ M.J. __ (CAAFlog case page) (link to slip op.), on Tuesday, July 8, 2014. A fractured court finds that the record does not provide an adequate basis to demonstrate that the military judge acted within the bounds of his discretion when he permitted the expert testimony of a former sexual assault response coordinator (SARC), and that the Government failed to show that this error was harmless, reversing the decision of the Army CCA and the appellant’s conviction for aggravated sexual assault.

Judge Ohlson writes for the court, joined by Judges Erdmann and Stucky. Chief Judge Baker dissents, finding neither error nor prejudice. Judge Ryan also dissents, finding greater error than the majority, but she joins Chief Judge Baker in finding no prejudice.

The case presents a Daubert challenge to the Government’s presentation of a former SARC as an expert witness at trial and her testimony that in her experience sexual assault victims almost never fight back against their attacker, almost never scream or call for help, and generally first report the attack to a friend or family member and not to law enforcement. But the witness did not examine the victim and her testimony was based on her own anecdotal experience with suspected victims of sexual assault. CAAF granted review of the following issue:

Whether the military judge abused his discretion when he admitted the testimony of a putative expert witness in violation of the military rules of evidence and case law on bolstering, expert qualifications, relevance, and the appropriate content and scope of expert testimony.

The appellant entered mixed pleas at a general court-martial in 2011. He pleaded guilty to, and was convicted of, two specifications of furnishing alcohol to a minor as an assimilated offense under Article 134. He pleaded not guilty to one specification of aggravated sexual assault in violation of Article 120 (2006) and one specification of burglary with intent to commit rape. A panel of members with enlisted representation convicted the appellant of the sexual assault, acquitted him of the burglary, and sentenced him to confinement for seven years, reduction to E-1, total forfeitures, and a dishonorable discharge.

The facts of the case involve a sexual encounter between the appellant and a 16 year-old girl, in her bedroom at her parent’s house, after she consumed alcohol at the appellant’s home with the appellant and the girl’s 15 year-old brother. The sexual encounter occurred while the girl’s brother slept on a couch approximately 20 feet from the girl’s open bedroom door. Both the girl and the appellant testified at trial about the encounter: The appellant asserted a consensual encounter while the girl asserted the opposite. All agreed that the girl didn’t fight back against the appellant and that she didn’t scream or otherwise call out to her brother who she knew was sleeping nearby.

At trial the military judge allowed the Government to call the former SARC (whose name was Ms. Falk) as an expert witness over the objection of the Defense. But the military judge did a poor job of addressing the Defense objections relating to Ms. Falk, and CAAF’s resolution of the case turns on this failure. Judge Ohlson finds that an early email from the judge “did not address the question of the admissibility of Ms. Falk’s testimony; it merely assumed it.” Slip op. at 6. He notes that “the military judge did not approach his evidentiary rulings in a methodical manner.” Slip op. at 17. And he concludes that:

Here, the military judge delayed ruling on the defense’s request for a continuance and the defense’s motion to compel Dr. Grieger until the morning of trial, denied the motion to compel based on his experience in other cases rather than strictly on the facts of this particular case, did not affirmatively address the defense’s request for a Daubert hearing, did not address the Houser factors, did not explicitly deny on the record the defense’s motion to exclude the testimony of Ms. Falk, did not provide any findings of fact, and did not apply the law to the facts to support his decision to admit Ms. Falk’s expert testimony. Of these concerns, the most important is the fact that the military judge did not conduct even a rudimentary Daubert hearing — despite the fact that the defense specifically and repeatedly requested one — or even briefly address the various Houser factors. As a result, we are left with a limited understanding of the military judge’s decision-making process and, accordingly, we give his decisions in this case less deference than we otherwise would.

Slip op. at 20-21 (emphasis added). In the absence of the significant deference normally afforded a trial-stage ruling permitting a witness to testify as an expert, Judge Ohlson and the majority conduct a de novo review of the admissibility of Ms. Falk’s testimony, employing the six-factor test from United States v. Houser, 36 M.J. 392 (C.M.A. 1993), where the court affirmed the admission of the testimony of a Government expert on rape trauma who did not interview the victim.

But this review begins with a clear caveat “affirm[ing] the appropriateness of allowing expert testimony on rape trauma syndrome where it helps the trier of fact understand common behaviors of sexual assault victims that might otherwise seem counterintuitive or consistent with consent.” Slip op. 23. And Judge Ohlson repeatedly emphasizes that the court’s decision is based on the unique circumstances presented in this case.

Read more »

Back in April, in this post, I discussed the Air Force CCA’s decision on a Government interlocutory appeal in United States v. Buford, No. 2013-26 (A.F.Ct.Crim.App. Apr. 4, 2014) (link to order).

The appeal involved the suppression of evidence discovered on both the accused’s electronic devices (a laptop and a thumb drive) and on external accounts accessed through one of those electronic devices (a Facebook page and an email account). The military judge found that a security forces member was acting in an official capacity when, at request of the accused’s spouse, he viewed and collected evidence from the accused’s Facebook account, e-mail account, and thumb drive, and that he violated the accused’s reasonable expectation of privacy.

The CCA found that the accused’s wife gave valid consent for a search of the laptop and thumb drive, but not for a search of the third-party internet sources utilizing the laptop, and partially affirmed the judge’s ruling suppressing the third-party sources, writing:

We concur with the military judge’s determination on the issue of consent. AB [the wife] gave consent to the search of the Dell laptop and had both actual and apparent authority over that laptop. Nevertheless, we also agree that consent to search the Dell laptop did not extend to the Facebook and email accounts of the appellee. Consent to search an electronic device does not automatically extend to consent to search all electronic “papers” not contained on the device but accessed through the device. Here, A1C RM had clear indications the “fake” Facebook account and the e-mail account belonged to the appellee. The e-mail account was password protected. The evidence is that A1C RM should have known the e-mail account was not under the authority of AB. Although AB had knowledge of the password, this does not automatically result in a conclusion that she had actual or apparent authority over an otherwise private separate account maintained by her husband. In an Article 62, UCMJ, appeal for a motion to suppress, we review the evidence in the light most favorable to the prevailing party at trial. A third-party’s control over property or effects is a question of fact. We concur with the military judge’s ruling that the Government failed to meet its burden of establishing that the consent exception applied to the search of the Facebook and e-mail accounts.

Order at 6 (citations omitted).

At the time of the post, I predicted that the Air Force would certify the case to CAAF. A few weeks later I identified an overall appearance of bias in the certification of cases by the Judge Advocate General of the Air Force. Yesterday, the Air Force certified Buford:

No. 14-6010/AF.  U.S. v. Aaron M. BUFORD. CCA 2013-26. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals and supporting brief were filed under Rule 22 this date on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION BY SUPPRESSING EVIDENCE FROM THE DELL LAPTOP, HEWLETT-PACKARD LAPTOP, AND CENTON HARD DRIVE.

I’ll be interested to see facts that explain why the Air Force is pursuing this litigation rather than just serving a subpoena on Facebook and the email provider (based on the information provided by the accused’s wife prior to the search).

Here is a link to a Virginian Pilot interview and WTKR interview here, with former Virginia Beach Commonwealth’s Attorney Harvey Bryant on his dissent from the report by the Response Systems Panel on Military Sexual Assault.  Prior coverage here.  Bryant and former NIMJ President Prof. Elizabeth Hilman both dissented and called for an independent and legally trained convening authority outside of the chain of command.  H/t GMJR here and here (via RK)

While we typically shy away from self promotion, I really think the new contributors to the blog deserve the same type of recognition that the blog got back in 2008 when the ABA Journal named us to 2008 ABA Blawg 100, as one of the top 100 legal blogs as selected by editors at the ABA Journal.

To do that this year, I think we need some help.  There is now a Blawg 100 Amici page that allows fans of law blogs to nominate them for inclusion in the Top 100.  Submit your nomination for any of your favorite law blogs by no later than 5 p.m. ET on Aug. 8, 2014.

Here are some of our favorite posts from 2013-14, feel free to add yours in comments

CAAF’s oral argument calendar was updated today, listing the date and case of the first oral argument of the September 2014 Term:

Tuesday, September 9, 2014
9:30 a.m.:

United States v. Ruben Vargas  No. 14-6009/MC
(Appellee) (Appellant)

Counsel for Appellant:  LtCol Richard A. Viczorek, USMCR
——————————– (supplement)
—————————————– (reply)
Counsel for Appellee:  Maj David N. Roberts, USMC (answer)

Case Summary: Special court-martial prosecution for assault consummated by a battery. Granted issue questions whether the Navy-Marine Corps Court of Criminal Appeals erroneously interpreted Article 62, UCMJ, to allow a Government appeal of the military judge’s denial of a continuance request as well as the military judge’s order resting the Government’s case.

NOTE: Counsel for each side will be allotted 20 minutes to present oral argument.

I discussed the NMCCA’s decision in Vargas in a March post titled: The NMCCA finds that Article 62 authorizes appeals of recesses.

The online version of CAAF’s daily journal is usually a full day behind (i.e., today’s update posted yesterday’s activity), so while I normally post the daily journal entry for CAAF grants, we won’t have that until tomorrow at the earliest.

In an unpublished opinion in United States v. Chatman, No. 20120494 (A.Ct.Crim.App. Jun 11, 2014) (link to slip op.), Chief Judge Glanville (the reserve counterpart to Chief Judge Pede) writes for a unanimous three-judge panel finding that the appellant’s statements to law enforcement agents were improperly admitted because they were the product of unlawful inducement or influence, or derivative of the same. As a result, the court dismisses the three specifications each of larceny and of burglary, of which the appellant was convicted contrary to his pleas of not guilty by a general court-martial composed of a military judge alone, and for which the appellant was sentenced to confinement for 14 months, reduction to E-1, and a bad-conduct discharge.

The charges arose out of a barracks larceny in which the appellant, who remained-behind while members of his unit participated in a field exercise, used a master key to burglarize the barracks rooms of three soldiers. One of the victims saw what he believed to be his stolen property in the appellant’s off-base residence, and alerted authorities. The appellant was brought in for questioning while his residence was searched (but no stolen property was found). The appellant was questioned on two occasions over the next 36 hours: First in the late-night hours of December 10, 2011, and second on December 12, 2011. A footnote “takes judicial notice of the fact that 10-12 December 2011 was a Saturday through Monday.” Slip op. at 16 n.10.

Portions of each of these interrogations were videotaped. The appellant made numerous incriminating statements, eventually confessing to the crimes. The confessions were offered into evidence at trial by the Government, and admitted by the military judge over Defense objection.

During both interrogations a military police officer identified only as Investigator E made numerous promises to the appellant. Early in the first interview, “Investigator E told the appellant, ‘I have a real big influence with the prosecutor as far as what happens to subjects.’” Slip op. at 3. Then, “after nearly an hour, Investigator E discussed how appellant would not be charged for simply possessing stolen property.” Slip op. at  3. Investigator E later left the room and purportedly spoke with the prosecutor, returning to coax admissions out of the appellant:

After further give and take, appellant told Investigator E that Carlos gained entry into the barracks rooms using a master key and appellant was simply holding the property for Carlos at his apartment. Upon hearing this, Investigator E advised appellant, in part, “[I]f you wouldn’t have told that [sh--] you were gonna get charged. . . . But now I’ve got something to go off of. So I’m gonna stay true to my word and I’m not gonna charge you. But there’s gonna be some conditions on that . . . . [Y]ou gotta cooperate with us, from here on out. . . . I mean you’re a part of this now, on our side. So you’re not gonna get [f---ed] with; aint gonna charge you.” Investigator E added, “[R]ight now you’re on my side. You went from being the person I was trying to get; now you’re on my side.”

At the close of the interview and after advising appellant again that he was not being charged, Investigator E placed limits on what appellant could do and who appellant could speak with. Investigator E told appellant: “I told you I was gonna work with you. I aint [bullsh---ing] you because you aint getting charged. . . . Be loyal to me and help us out with this investigation and we’ll – - I mean we’ll be loyal to you.” After telling appellant he was “gonna walk tonight,” Investigator E advised appellant that “there’s gonna be conditions on who you can talk to about this [sh--]. You can’t talk to anybody about this [sh--], nothing, this is it.” Investigator Echaracterized the discussions as “protected information.” Investigator E ended the interview by referencing the garrison commander and MPI’s influence over him, stating: “we report directly to the garrison commander, so, whatever we need to do to help you out, as long as you help us out, it can get done.”

Slip op. at 4. “Thirty-six hours after the initial MPI interview, appellant was back at the MPI office.” Slip op. at 5. The appellant was questioned by a new agent, Detective B. “Unlike Investigator E, Detective B did not promise appellant anything.” Slip op. at 5. But after the appellant made more admissions,

Investigator E entered the interview room, again making promises of no prosecution. This time, Investigator E promised not to prosecute whoever was currently holding the property for appellant. Subsequently, the focus of the discussions was the immediate retrieval of the stolen property.

Slip op. at 5. Soon after this, the appellant received a phone call and then the stolen property was returned to the appellant’s residence where it was identified by the victims. The appellant was then prosecuted at a general court-martial.

Read more »

In an unpublished opinion in the Marine Corps case of United States v. Brown, No. 201300181 (N-M.Ct.Crim.App. Jun. 30, 2014) (link to slip op.), the NMCCA reverses the appellant’s convictions for false official statement, assault consummated by battery, communicating a threat, and two specifications of wrongfully possessing firearms after having been convicted of a misdemeanor crime of domestic violence, finding that through the admission of improper character evidence “the Government effectively handed the members a canvas with the appellant painted as an abusive and aggressive individual prone to extreme responses to seemingly mild provocation.” Slip op. at 12. Senior Judge Ward writes for a unanimous three-judge panel.

The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation. He was sentenced to confinement for 15 years, reduction to E-1, total forfeitures for 12 months, and a dishonorable discharge. The convening authority approved the sentence as adjudged.

The charges involved domestic disputes between the appellant and his wife:

At trial, the appellant faced charges for communicating a threat to EB [his wife] on 1 April 2012 and two specifications of assault and battery of EB on 10 June 2012; one specification for making a false official statement for his comment [to command representatives, claiming that he didn't own a gun] following the IRO hearing; and four specifications of 18 U.S.C. § 922(g)(9) for wrongfully possessing two firearms and ammunition in the trunk of his car.

Slip op. at 4. However, at trial the wife’s responses to the trial counsel’s direct examination “were noncommittal or less than forthcoming,” and the CCA’s opinion casts her as a better witness for the Defense than for the Government. Slip op. at 6-7. Perhaps for this reason Judge Ward notes that “in light of several evidentiary challenges, the Government served notice to the defense of evidence it intended to offer at trial pursuant to MIL. R. EVID. 404(b).” Slip op. at 5. This evidence included prior domestic disturbance 911 calls and an encounter between the appellant and a Mr. G where the appellant allegedly pointed a pistol at Mr. G (who then refused to cooperate with military police in any investigation and the appellant was not charged with an offense in relation to this incident). The incident with Mr. G also included evidence of the appellant’s infidelity to his wife. Judge Ward explains:

During the pretrial motion hearing, the Government argued that the previous 911 calls and related police reports provided evidence of the appellant’s intent and plan to abuse his wife, and further defeated any accidental cause of EB’s injuries on 10 June 2012. The Government then posited that the incident involving Mr. G revealed the appellant’s knowledge of and intent to possess one of the firearms later recovered from his vehicle. This was due to the similarity between the pistol Mr. G described and the one later recovered from the appellant’s vehicle.

Ultimately, the military judge agreed, concluding that the brandishing of a firearm was relevant to show knowledge to rebut any claim of mistake or accident concerning the Lautenberg violations. Similarly, he concluded that the previous 911 calls were relevant to rebut any claim of mistake or accident on the charge of spousal battery. The military judge also concluded that this evidence was not substantially outweighed by the danger of unfair prejudice.

Slip op. at 5. If you’re scratching your head on this reasoning, you’re not alone. The CCA concludes that the military judge erred in admitting this evidence, and that he conducted an erroneous 403 balancing. But Judge Ward repeatedly puts the onus on the unidentified trial counsel for using this evidence for purely propensity purposes.

Read more »

In a lengthy published opinion available here, the Air Force CCA affirms the death sentence adjudged in the case of United States v. Witt, No. 36785, __ M.J. __ (A.F.Ct.Crim.App. Jun. 30, 2014). The CCA’s action reverses the earlier decision (72 M.J. 727) (available here) (discussed here) of the court that set aside the death sentence after finding ineffective assistance of counsel by the trial defense team in that it did not effectively investigate and present various types of mitigation evidence.

The court previously split 3-2 on the question of prejudice. This time it splits 4-2, again on the question of prejudice. Senior Judge Marksteiner (who joined a partial dissent in the first decision, finding no prejudice) writes for the majority now, joined by Chief Judge Helget and Senior Judge Harney. Judge Mitchell concurs dubitante. Judge Saragosa (who wrote for the majority in the first decision) dissents in part, and is joined by Judge Peloquin who also writes a separate opinion dissenting in part.

But there is also dissent over the absence of minimum qualification requirements for counsel defending a military member facing the death penalty. Judge Mitchell’s dubitante opinion is about the lack of an express requirement for experienced capital defense counsel in a capital court-martial. Slip op. at 114. Judge Peloquin’s separate opinion addresses this issue as well. Slip op. at 136. Judge Peloquin explains:

In the instant case, the Government opted to detail two trial defense counsel to the appellant. When he was assigned to defend the appellant, the senior military defense counsel, Captain (Capt) DR, had been a member of the bar for two-and-a-half years, had prosecuted six cases of unknown complexity, and had served as a trial defense counsel for twelve months, defending nine cases. He had no capital trial experience and little training on the subject of capital trials60 prior to being detailed. The assisting military defense counsel, Capt DJ, had been a member of the bar for less than three years, had prosecuted 14–15 cases of unknown complexity, and had never served as a trial defense counsel prior to his assignment to the appellant’s defense team. He had no capital trial experience or training prior to being detailed.

The appellant, of his own accord, procured the services of a private attorney, Mr. FS. Mr. FS had been practicing law for 25 years with significant trial and appellate defense experience in courts-martial. However, he had no capital trial or capital appellate-level experience. As the lead counsel, he determined the division of labor among the defense legal team. . . .

None of the appellant’s attorneys met the minimum qualification standards required of capital defense counsel, specific bar admission aside, as adopted in 18 jurisdictions which account for over 80% of the capital cases in the United States. And lead counsel for the appellant’s sentencing case did not meet the minimum qualification standards in any of 24 jurisdictions with minimum qualification standards accounting for 94% of the capital cases in the United States. In fact, none of the appellant’s trial defense counsel met the minimum statutory qualifications governing counsel appointed to defend in federal capital cases.

To be fair, Capt DR, Capt DJ, and Mr. FS certainly appear to be capable, conscientious attorneys who worked diligently and tirelessly to defend their client. But in light of the import the overwhelming majority of capital jurisdictions accord to minimum standards for capital defense counsel, it strains credibility to conclude their judgment, efforts, and decisions were not handicapped by their own lack of training and experience.

Slip op. at 140 (Judge Peloquin dissenting) (citations omitted).

But on the issue that led the court to reverse the sentence the first time, Judge Marksteiner explains:

We conclude that although trial defense counsel were deficient in some areas, the appellant was not prejudiced by these deficiencies, and therefore under the second prong of Strickland we must resolve these issues against the appellant.

Slip op. at 38. The majority focuses on six aspects of the Defense sentence case:

(1) the scope of trial defense counsel’s investigation into, and failure to present evidence deriving from, a motorcycle accident the appellant was involved in four and a half months prior to the murders; (2) trial defense counsel’s failure to investigate and obtain records pertaining to the appellant’s mother’s treatment at an inpatient mental health facility; and (3) trial defense counsel’s failure to investigate and develop evidence of remorse through Deputy Sheriff LF. Then we will examine [4] whether counsel were ineffective in failing to offer evidence of the appellant’s future risk of violence, [5] failing to offer testimony of SP and KP, and [6] failing to object to inadmissible victim impact evidence.

Slip op. at 37-38.

Read more »

This week at SCOTUS: The cert petition in Hornback was distributed for conference on September 29. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking three cases:

This week at CAAF: CAAF has finished its oral argument schedule for the September 2013 Term.

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.

Another guest blog – by Dew_Process.  In some prior posts we had great input from Chris Kennebeck regarding the JSC, which I had forgotten.

["Jr.Editor" note -- first some background.  Dew_Process posted with me recently at my invitation so it wasn't really a true guest post.  The other day he and I came across the same case.  I invited him to submit a post.  Which he has done.  He said I could edit it - I haven't (except to put in the links).  The invitation went out before my invitation to AFJAG to write on Witt or Chron for us.]

This court has been asked to issue a search warrant pursuant to Rule 41 of the Federal Rules of Criminal Procedure for the contents of a cell phone that is currently in the custody of the Drug Enforcement Agency (DEA). Based on this courts previous rulings and other case law this request has been denied. [ emphasis added]

So begins the opinion in the case of In re Nextel Cellular Telephone, 2014 WL2898262 (D.Kan. 2014). Regular readers of CAAFlog will note that the subject of cell phone searches is something that has generated frequent interest here.  Thus, the Nextel decision coming on the heels of Riley v. California, 2014 WL 2864483 (2014), should be of interest to all military justice practitioners, regardless of which side of the aisle one is on. And for those readers who handle post-conviction relief issues, Nextel is important because it relies heavily on Tenth Circuit caselaw – decisions that apply to the U.S. Disciplinary Barracks at Fort Leavenworth, Kansas.

Why the court denied the search warrant in this case is instructive. A confidential source had given the DEA information that a particular vehicle was carrying roughly 15 pounds of methamphetamine. According to the DEA agent’s application, during a “consent” search of the vehicle, they: “seized as evidence from [redacted] his NEXTEL cellular telephone which was identified as a black and orange NEXTEL smartphone. . . .” Thereafter, the DEA agent submitted an application for a search warrant to the federal magistrate judge.

The application stated in pertinent part: Read more »

Here is a link to Global Military Justice Reform’s post of the June 30, 2014, NIMJ submission to the Military Justice Review Group (UPDATE:  Here is the full submission).  Here is a link to the nearly empty webpage of the Military Justice Review Group being run by the DoD OGC.  As we mentioned the MJRG isn’t subject to FACA so there is no transparency requirement, but I have to say that the webpage is still pretty bad even for that low bar.

I am sure Zee will be happy see recommendation #7:

Bring the varied definitions of a “victim,” implemented in the 2013 changes to the UCMJ, into consonance as detailed in CAAFLog’s analysis of the 2013 changes.

There are five different definitions of the term “victim” in these changes, in Article 6(b), Article 32, Article 46(b), Article 60(d), and the new 10 U.S.C. § 1044e (the SVC statute).  See Zachary D Spilman’s comments: 2013 Changes to the UCMJ – Part 6: Practice notes,  available at http://www.caaflog.com/2014/01/10/2013-changes-to-the-ucmj-part-6-practice-notes/ .

My personal favorite, is #13:

13)  Amend R.C.M. 806 or 808 to provide for public and media access to court-martial pleadings and rulings in a timely fashion through adoption of the PACER system or its equivalent.  Such a system would promote transparency and would allow public and media access to court-martial proceedings in a timely fashion, goals that would enhance public understanding and confidence in the administration of military justice.

The Report of the Response Systems to Adult Sexual Assault Crimes Panel was released to Congress on June 27, 2014. Here is today’s coverage (via Stars and Stripes) of the report and a link to the report, here, now available on the Panel’s website. Stars and Stripes reports that 7 of the 9 members recommended keeping referral decisions in sexual assault cases with the chain of command. Former NIMJ President, Professor Elizabeth Hillman was one of the dissenters, along with Harvey Bryant the former elected Commonwealth’s Attorney in Virginia Beachand past chair of the Virginia State Bar Association’s Criminal Law Section, writing

The Panel’s assessment revealed many improvements already in place and other areas in which changes should be made. Removing prosecutorial discretion from the chain of command, however, is not among the changes recommended by the Panel. We write separately because it should be. Court-martial convening authorities, a small and high-ranking part of the military’s command structure,1 should no longer control the decision to prosecute sexual assault cases in the military justice system. The Panel’s recommendation that the authority to prosecute remain within the command structure of the military is based on the testimony of high-ranking commanders and attorneys within the U.S. military. It neglects the words of survivors of sexual assault, rank-and-file Service members, outside experts, and officers in our allies’ militaries. They tell us that the commander as prosecutor creates doubt about the fairness of military justice, has little connection to exercising legitimate authority over subordinates, and undermines the confidence of victims.2 Preserving command authority over case disposition, pre-trial processes, and post-trial matters prevents commanding officers from acting assertively to deter and punish military sexual assault.3 It also undermines the rights of both victims and accused Service members, all of whom deserve an independent and impartial tribunal.

The report included 125 separate recommendations for changing everything from the UCMJ to budgets for various portions of the military justice system. As we reported earlier, here, two other panels will weigh in on some of the same topics later this year.

The Judicial Proceedings Since Fiscal Year 2012 Amendments Panel will “conduct an independent review and assessment of judicial proceedings conducted under the Uniform Code of Military Justice (UCMJ) involving adult sexual assault and related offenses since the amendments made to the UCMJ by section 541 of the National Defense Authorization Act of Fiscal Year 2012 (“the FY 2012 NDAA”) (Pub. L. 112-81) for the purpose of developing recommendations for improvements to such proceedings.”   The Military Justice Review Group has a broader focus on a comprehensive review of the military justice system, but seems to have the same impetus as the other panels.