This week at SCOTUS: The petition in Cash was distributed for conference on February 16, and a reply brief was filed in Richards on Jan. 31. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking six cases:

This week at CAAF: The next scheduled oral arguments at CAAF are on February 27, 2018.

This week at the ACCA: The Army CCA’s website is still inaccessible from the public internet (discussed here).

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

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

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on February 21, 2018.

In late 2015, the Associated Press reported that the military justice system operates without the same “openness designed to provide accountability” to the civilian justice system. Associated Press, “Opaque military justice system shields child sex abuse cases,” 24 Nov 2015. In contrast to civilian proceedings, which are “open to the public, as are court filings, including motions and transcripts,” the AP complained that its access to information from the military justice system requires “many [Freedom of Information Act (FOIA)] requests, appeals and fees, and often months of waiting.” Id.

Shortly after the AP’s report, at least six U.S. Senators, from both major political parties, demanded that the Department of Defense lift the “cloak of secrecy” in military justice. They asserted that the secrecy “calls into question the integrity of the institution and hides the system’s shortcomings.” They also asserted that the military justice system “is rife with bias, lack of transparency and no accountability.” Associated Press, “Senators demand transparency in the military justice system,” 8 Dec 2015. Ann Lopez, “Senators demand reform in handling of military sexual assault cases,” WSHU Public Radio, 25 May 2016.

More than two years later, the allegation of opacity against the military justice system remains, and the assertion that FOIA offers a sufficient means by which the public interest can be vindicated is being challenged in federal district court.

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CAAF decided the Air Force case of United States v. Honea III, __ M.J. __, No.17-0347/AF (CAAFlog case page) (link to slip op.), on Thursday, February 1, 2018. Finding the record “a tangled morass,” that “does not establish with certainty what the findings were,” CAAF concludes that appellate review is impossible and reverses the findings, sentence, and decision of the Air Force CCA. Yet because the record is “so irredeemably muddled,” CAAF does not authorize a rehearing and instead dismisses the charge with prejudice.

Judge Ohlson writes for a unanimous court.

CAAF granted review of two issues:

I. Immediately before the defense rested its case, the military judge invited the parties’ attention to R.C.M. 910, and directed the defense to provide the    military judge with a draft specification of assault consummated by a battery. Did the lower court err when it held that the defense’s compliance with the military judge’s directive constituted a de facto defense request to modify the specification pursuant to R.C.M. 603 where there is no evidence that either the defense or the convening authority were aware the charge was being amended pursuant to R.C.M. 603?

II. The military judge dismissed Specification 2 of Charge II, abusive sexual contact by causing bodily harm, for failure to state an offense, but she allowed the Government to roceed to trial on the purported lesser included offense of assault consummated by a battery. Did the military judge err?

At the conclusion of the oral argument in this case, Chief Judge Stucky said:

Counsel for both sides having manfully striven to make something of this mess, the case is now submitted.

The mess, however, prevails.

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Waiver mania was the #3 Military Justice Story of 2017, primarily because of a series of cases from the Army CCA holding that the mere failure failure to object to improper argument at trial waives (meaning extinguishes) any error. The decisions contravene longstanding precedent that treats such failure as forfeiture (meaning that the appellant is entitled to relief if the improper argument rises to the level of plain error), and the pending amendments to the MCM (now overdue) are expected to change the text of the applicable rules to conform with the precedent interpreting their meaning.

Nevertheless, the first such decision was United States v. Marcum, No. 20150500 (A. Ct. Crim. App. May 5, 2017) (link to slip op.). CAAF granted review in Marcum in October (discussed here). But the biggest such decision was in United States v. Kelly, 76 M.J. 793, No. 20150725 (A. Ct. Crim. App. Jul. 5, 2017) (en banc) (link to slip op.), in which the en banc CCA unanimously applied waiver. CAAF granted review of a different issue in Kelly (noted here), but then expanded that review to also make Kelly a Marcum trailer (noted here). The granted waiver issue in Marcum and Kelly states:

APPELLANT CLAIMED THE PROSECUTION’S ARGUMENTS ON FINDINGS AND SENTENCE WERE ERRONEOUS AND PREJUDICIAL. THE COURT BELOW APPLIED THE STANDARD OF REVIEW IN UNITED STATES v. AHERN, 76 M.J. 194 (C.A.A.F. 2017), AND DID NOT FIND PREJUDICE. DID THE COURT BELOW ERR, BECAUSE THE PROPER STANDARD OF REVIEW IS FOUND IN UNITED STATES v. SEWELL, 76 M.J. 14 (C.A.A.F. 2017) AND UNITED STATES v. PABELONA, 76 M.J. 9 (C.A.A.F. 2017)?

The CCA also applied waiver in United States v. Burris, No. 20150047 (A. Ct. Crim. App. May 8, 2017) (mem. op.), aff’d on recon., No. 20150047 (A. Ct. Crim. App. July 28, 2017) (unpub. sum. disp. on recon.). CAAF granted review of the waiver issue in that case too (noted here), with a bluntly-worded issue:

CITING RULES FOR COURTS-MARTIAL 905(e) AND 919(c), THE ARMY COURT HELD THAT THE FAILURE OF APPELLANT’S TRIAL DEFENSE COUNSEL TO OBJECT TO IMPROPER CHARACTER EVIDENCE AND IMPROPER ARGUMENT WAIVED ANY ERROR. THIS COURT, HOWEVER, TREATS SUCH FAILURES AS FORFEITURE AND TESTS FOR PLAIN ERROR. WHICH COURT IS RIGHT?

Disclosure: I represent the appellants in both Kelly and Burris.

Somewhat concurrently, the Navy-Marine Corps CCA adopted – but then reconsidered and rejected – the CCA’s finding that the mere failure to object to improper argument constitutes waiver. See United States v. Motsenbocker, No. 201600285 (N.M. Ct. Crim. App. Aug 10, 2017) (discussed here), recon. granted, No. 201600285 (N.M. Ct. Crim. App. Oct 17, 2017) (discussed here).

With the Army CCA’s finding of waiver squarely before CAAF in two merits cases and one trailer, and with the Navy-Marine Corps CCA rejecting waiver, doubt is starting to appear at the Army court. Specifically, in a recent opinion in United States v. Koch, No. 20160107 (A. Ct. Crim. App. Jan. 29, 2018) (link to slip op.), a three-judge panel of the CCA applies forfeiture to the failure of the appellant’s counsel to object to improper argument, acknowledging that:

Regardless of how persuasive our sister court’s [the NMCCA’s] discussion of Ahern as applied to unpreserved error may be (see concurring and dissenting opinions below) we are obligated to follow the precedent of this Court.

Our superior court has granted a petition to decide this issue. United States v. Kelly, No. 17-0559/AR (C.A.A.F. 20 Dec 2017) (order). As we find any error in this case does not amount to plain error, for purpose of judicial economy we apply waiver but will also test for plain error.

Slip op. at 8. Judge Wolfe writes for the panel and also writes a separate concurring opinion explaining:

I would also revisit our holding in Kelly that the failure to object to errors in argument waives, rather than forfeits, the error. *FN

*FN 13* I was the author of this Court’s opinion in Kelly. Nonetheless, I am persuaded by our sister court’s treatment of the issue in Motsenbocker that we (or at least I) overstepped. While I recognize that the issue is now squarely before the CAAF, I would not wait to revisit the issue.

Slip op. at 17.

Senior Judge Mulligan and Judge Febbo, however, while concurring in the application of plain error review, would not revisit the CCA’s decision in Kelly. Judge Febbo writes:

Additionally, I see no reason to revisit United States v. Kelly, 76 M.J. 793 (Army Ct. Crim. App. 2017), as Judge Wolfe suggests. I would apply the plain language of R.C.M. 919(c). As CAAF stated in United States v. Reese, courts “apply the ordinary rules of statutory construction in interpreting the R.C.M.” 76 M.J. 297, 301 (C.A.A.F. 2017) (analyzing the plain language of R.C.M. 603(d)). R.C.M. 919(c) clearly states that an appellant who fails to object to an improper argument thereby waives objection.

Slip op. at 20. Footnote 14 adds: “The use of the term ‘waiver’ was intentional and the R.C.M. is consistent with applying waiver for failure to objections made during arguments in both findings and sentencing. See R.C.M. 919(c) and l001(g).”

I recently filed the Appellant’s brief in Burris with CAAF (available here). The brief makes numerous arguments against applying waiver, including that even though R.C.M. 905(e) and 919(c) use the word waiver, the structure of the rules, their history, and CAAF’s precedent all show that the word waiver in those rules actually means forfeiture.

Yesterday the Senate confirmed Gregory Maggs as the newest CAAF judge.

Congratulations Judge Maggs!

 

When we last looked at the the ongoing habeas litigation involving Marine Corps Brigadier General John Baker (chief of the Military Commissions Defense Organization) who was found in contempt by Air Force Colonel Vance Spath (chief judge of the Air Force and a judge on the military commissions) – the #6 Military Justice Story of 2017 – it was to consider a renewed request for habeas and a motion by commissions prosecutors to obtain the audio recording of the related commission hearings.

Since then the DOJ filed a response (available here) to Baker’s renewed request, and Baker filed a reply brief (available here).

While the DOJ’s response leads with arguments that the habeas petition is now moot and that Baker failed to exhaust administrative remedies, both of these new briefs give real attention to what I believe is the most important issue in this case: whether Baker’s conduct actually constitutes contempt as the term applies to the Guantanamo commissions. As I discussed here and here, the contempt power of the Guantanamo commissions was narrowly defined by Congress and Baker’s conduct does not clearly (or even remotely, I think) meet that definition.

The DOJ’s brief, however, significantly misinterprets the hierarchy of rules in the military justice system and thereby reaches the opposite conclusion.

Read more »

This week at SCOTUS: The petition in Roukis was distributed for conference on February 16. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking six cases:

This week at CAAF: The next scheduled oral arguments at CAAF are on February 27, 2018.

This week at the ACCA: The Army CCA’s website is still inaccessible from the public internet (discussed here).

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

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

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on February 21, 2018.

CAAF decided the Air Force case of United States v. Chisum, __ M.J. __, No.17-0199/AF (CAAFlog case page) (link to slip op.), on Friday, January 26, 2018. Reviewing the mental health records of two prosecution witnesses – even though the records were not reviewed by the trial military judge and were made available for the first time on appeal – CAAF holds that any error in failing to produce them at trial was harmless, affirming the findings, sentence, and decision of the Air Force CCA.

Chief Judge Stucky writes for a unanimous court.

Back in 2016, in United States v. Chisum, 75 M.J. 943 (A.F. Ct. Crim. App. Nov. 29, 2016) (discussed here), the Air Force CCA “ordered that the Government produce the sealed mental health records of AB AK and AB CR for appellate review.” 75 M.J. at 946 n.3. Such records are protected by Mil. R. Evid. 513, the military psychotherapist-patient privilege. The rule was significantly modified after the trial of this case (discussed here and here), but at the time of trial the rule included an exception for “when admission or disclosure of a [psychotherapist] communication is constitutionally required.” Mil. R. Evid. 513(d)(8) (2014) (deleted in 2015).

Despite this exception, the military judge rejected a request from Chisum’s defense counsel to review the mental health records of two key prosecution witnesses – Airman Basic AK and CR – for evidence related to their ability to accurately perceive and recall Chisum’s alleged illegal drug activity. Having obtained the records (for the first time), however, the Air Force CCA reviewed them and concluded that the military judge was wrong to refuse to conduct such a review. But the CCA also found the error harmless because “the additional information contained in the [mental health] records would not have changed the substance or effectiveness of [the defense] cross-examination or defense theory.” 75 M.J. at 950.

CAAF then granted review to determine:

Whether the military judge’s failure to conduct an in camera review of the mental health records of AB AK and AB CR deprived Appellant of his right to confront the sole witnesses against him in violation of the Sixth Amendment to the Constitution.

In today’s short opinion the court unanimously concludes that any error was harmless. But it does so after the taking the unusual step of duplicating the CCA’s review of evidence not presented at trial.

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CAAF’s annual CLE for 2018 will occur on March 7 – 8, 2018, at American University Washington College of Law, Claudio Grossman Hall, 4300 Nebraska Avenue, N.W., Washington, D.C. 20016.

Registration isn’t open yet, but will eventually be available here.

§ 5542(b) of the Military Justice Act of 2016 requires the President to “prescribe regulations implementing [the MJA] not later than one year after the date of the enactment of this Act.”

That date was December 23, 2017.

To my knowledge, President Trump has still – a month later and counting – not signed an executive order implementing such regulations. The Joint Service Committee published proposed regulations – in the form of a significantly updated Manual for Courts-Martial – on July 11, 2017, it accepted and considered public comments (including mine), and it held a public meeting on August 3, 2017.

But like a boot in swamp mud, the process is stuck.

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

United States v. Blanks, No.17-0404/AF (CAAFlog case page): Oral argument audio.

United States v. Robinson, No.17-0504/AF (CAAFlog case page): Oral argument audio.

CAAF will hear oral argument in the Air Force case of United States v. Robinson, No.17-0504/AF (CAAFlog case page), on Wednesday, January 24, 2018, after the argument in Blanks. Two granted issues challenge the admission of evidence obtained by military investigators from the appellant’s cell phone, based on the fact that the investigators requested the passcode to the phone from the appellant after he involved his right to counsel:

I. Whether the military judge abused his discretion by failing to suppress evidence obtained from Appellant’s cell phone.

II. Whether the Air Force Court erred in holding Appellant waived objections regarding investigators’ exceeding the scope of Appellant’s consent.

Last term, in the interlocutory case of United States v. Mitchell, 76 M.J. 413 (C.A.A.F. Aug. 30, 2017) (CAAFlog case page), CAAF held that because continued questioning of a suspect after he invokes his right to counsel violates the Fifth Amendment, the contents of a cell phone must be suppressed when military investigators request the passcode to decrypt the phone after the suspect requests an attorney. The decision was the #4 Military Justice Story of 2017.

Senior Airman (E-4) Robinson was convicted of communicating indecent language to a minor in violation of Article 120b, and sentenced to confinement for one month, reduction to E-1, and a bad-conduct discharge. The evidence admitted against Robinson included text messages extracted from his cell phone. Those messages were obtained after the investigators asked Robinson for the passcode to the phone. That request, however, came after Robinson informed the investigators that he had an attorney and invoked his right to remain silent.

Robinson both consented to a search of the phone and provided the passcode after that invocation, and his defense counsel moved to suppress the contents of the phone at trial.

Now Robinson seeks to apply CAAF’s reasoning in Mitchell to the circumstances of his case.

Case Links:
• AFCCA decision (76 M.J. 663)
• Blog post: CCA opinion analysis
• Blog post: CAAF grants review in related case
• Blog post: CAAF grants review in this case
• Appellant’s brief
• Appellee’s (A.F. Gov’t App. Div.) brief
• Appellant’s reply brief
• Amicus brief (supporting Robinson): Army Defense App. Div. 
• Amicus brief (supporting Robinson): EFF, ACLU, ACLU of DC
Blog post: Argument preview

CAAF decided the Coast Guard case of United States v. Riesbeck, __ M.J. __, No. 17-0208/CG (CAAFlog case page) (link to slip op.), on Tuesday, January 23, 2018. Finding that gender was improperly used as a criteria for selection of the members of the court-martial, categorizing that as an “obvious error,” labeling the post-trial review of that error up to this point “a stain on the military justice system,” and emphasizing that “the Government, set on arguing that there was no error, hasn’t even claimed to meet its burden to show the error was harmless,” CAAF sets aside the findings and orders the charges dismissed with prejudice.

Judge Ryan writes for a unanimous court.

A general court-martial composed of members with enlisted representation convicted Boatswain’s Mate Second Class (E-5) Riesbeck, contrary to his pleas of not guilty, of making false official statements, forcible rape, and communicating indecent language, in violation of Articles 107, 120, and 134. The panel sentenced Riesbeck to confinement for three months, reduction to E-2, and a bad-conduct discharge.

That panel, however, had remarkable demographics: “the seven-member panel that convicted and sentenced Appellant was composed of five women, four of whom were victim advocates – persons trained to provide support and counseling to victims of rape and sexual assault – and two men.” Slip op. at 1. CAAF granted review of two issues (both specified by the court) regarding that composition:

I. Whether the members of Appellant’s court-martial panel were properly selected.

II. Whether Appellant was deprived of a fair trial, or the appearance of a fair trial, where a majority of the panel members were former victim advocates and the military judge denied a challenge for cause against one of them

Today’s opinion doesn’t address Issue II because in resolving Issue I the court concludes that:

[T]he error in this case is both so obvious and so egregious that it adversely affected not only Appellant’s right to a fair trial by an impartial panel, but also the essential fairness and integrity of the military justice system. We thus decline to authorize a rehearing, and order that the charges and specifications be dismissed with prejudice.

Due to the patent and intolerable efforts to manipulate the member selection process, contra every requirement of the law, the failures of the military judge, the DuBay military judge, and the CGCCA, to investigate, recognize, or ameliorate the clear court stacking in this case, and the actual prejudice to the Appellant of being tried by a panel cherry-picked for the Government, dismissal with prejudice is the only remedy that can eradicate the unlawful command influence and ensure the public perception of fairness in the military justice system.

Slip op. at 18 (marks and citations omitted) (paragraphing added).

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CAAF will hear oral argument in the Air Force case of United States v. Blanks, No.17-0404/AF (CAAFlog case page), on Wednesday, January 24, 2018, at 9:30 a.m. The court granted review to determine whether:

In light of this Court’s decision in United States v. Haverty, 76 M.J. 199 (C.A.A.F. 2017) [CAAFlog case page], did the military judge err when he instructed the members Appellant could be convicted of negligent dereliction of duty?

Article 92(3) addresses one who “is derelict in the performance of his duties.” Twenty-four years ago, CAAF explicitly held that “simple negligence is the proper standard for determining whether the nonperformance of military duty is derelict within the meaning of Article 92(3).” United States v. Lawson, 36 M.J. 415, 416 (C.M.A. 1993). But forty years before that – and only two years after the UCMJ took effect – the court first acknowledged that “when the nonperformance [of a duty] is the result of a lack of ordinary care, the omission is negligent,” and that such negligence can violate Article 92(3). United States v. Grow, 3 U.S.C.M.A. 77, 86-87 (C.M.A. 1953) (quoting Manual for Courts-Martial (1951 ed.), ¶ 171c).

Recently, however, CAAF repeatedly addressed mens rea (the mental state required to commit an offense), and the subject was the #8 Military Justice Story of 2017. It got such attention in part because a functionally-unanimous decision in United States v. Haverty, 76 M.J. 199, (C.A.A.F. Apr. 25, 2017) (CAAFlog case page), applied the Supreme Court’s decision in Elonis v. United States, 135 S. Ct. 2001 (2015), to find that recklessness is the minimum mens rea adequate to sustain a conviction of hazing in violation of Army Regulation 200-20 paragraph 4-20.

Armed with that precedent, Senior Airman (E-4) Blanks challenges his conviction (for the first time on appeal) of negligent dereliction of duty adjudged as a lesser included offense of the charged offense of willful failure to provide adequate financial support to his wife. App. Br. at 2. The underlying facts include that Blanks falsely told his command that he was married to the mother of the child (in order to obtain 10 days of parental leave after the child was born), when Blanks was really married to someone else. Blanks’ brief also offers a soap opera’s worth of additional facts. App. Br. at 3-9.

CAAF’s review, however, will focus on the law. Specifically, Blanks asks CAAF to overrule Lawson and apply Haverty to hold that “recklessness is the lowest mens rea which is necessary to separate wrongful conduct from otherwise innocent conduct,” and therefore “Blanks’ conviction for negligent dereliction of duty must be set aside.” App. Br. at 9 (marks and internal citations omitted).

It has the markings of a tough sell.

Read more »

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

United States v. Condon, No.17-0392/AF (CAAFlog case page): Oral argument audio.

United States v. Wheeler, No.17-0456/AF (CAAFlog case page): Oral argument audio.