This week at SCOTUS: A cert. petition was filed in Bartee v. United States, No. 17-175 on July 28, 2017. In United States v. Bartee, 76 M.J. 141 (C.A.A.F. Mar. 15, 2017) (CAAFlog case page), a majority of CAAF concluded that there was no systemic exclusion of court-martial members on the basis of rank despite the fact that the convening order duplicated an earlier order that was found to have systemically excluded.

The Solicitor General received a second extension of time to respond to the cert. petition in Alexander. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking seven cases:

This week at CAAF: CAAF has completed its oral argument calendar for the term. A detailed list of this term’s cases is available on our October 2016 Term Page. The first oral argument date for the next term is October 10, 2017.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Tuesday, August 8, 2017, at 10 a.m.:

United States v. Bales, No. 20130743 (CAAFlog news page)

I. [Appellant] is entitled to a new sentencing hearing because of the Government’s Brady violation, the Government’s fraud on the court-martial and the military judge’s exclusion of Mullah Baraan’s ties to IED evidence.

II. The military judge erred by failing to hold a Kastigar hearing to determine the extent the military judge’s mistaken disclosure of Fifth Amendment protected information affected the sentencing hearing.

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

This week at the CGCCA: I can’t access the Coast Guard CCA’s oral argument schedule.

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

The UC Davis Legal Studies Research Paper Series recently released an article entitled Revising State Post-Conviction Relief Statutes to Cover Convictions Resting on Subsequently Invalidated Expert Testimony by former Army JAG, and prominent evidence law scholar, Professor of Law Emeritus Edward J. Imwinkelried.  The article posits:

Invalid expert testimony has become a disturbingly recurrent theme in the wrongful conviction studies.

Id. at 3.

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In a series of posts (here, here, and here) in May and June we discussed the case of Senior Chief Barry, U.S. Navy, who was convicted of one specification of sexual assault in violation of Article 120, and sentenced to confinement for three years and a dishonorable discharge. The convening authority – Rear Admiral Patrick J. Lorge (now retired) – approved the findings and sentence, the NMCCA affirmed in an opinion available here, and CAAF summarily affirmed on April 27, 2017. But after CAAF acted, the Admiral signed an affidavit alleging that he really wanted to disapprove the finding of guilty but the then-Judge Advocate General of the Navy and her deputy (the current JAG) persuaded him not to do so because it would be bad public relations for the Navy and hurt Lorge’s career.

That allegation prompted CAAF to reverse its summary affirmation and grant review of “whether senior civilian and military leaders exerted unlawful command influence on the convening authority.” CAAF also ordered post-trial fact-finding.

That fact-finding is underway. According to this report published by the San Diego Union-TribuneVice Admiral Crawford (the current JAG) gave a deposition this week and, according to Barry’s civilian defense counsel, “Crawford has confirmed that he discussed the case with Lorge. Crawford also disclosed the existence of documents and messages exchanged at the highest levels of the Navy about Barry.”

But the report also raises a new allegation: that Vice Adm. Crawford pushed for a prosecution in a different case involving the 2016 drowning death of a special operations candidate, Seaman James Derek Lovelace. Barry was also a member of the special operations community, but was not (best I can tell) involved in any way in the death of Lovelace.

The Union-Tribute reports that:

Word that the Union-Tribune had received records in both the Barry and Lovelace cases triggered numerous, sometimes frantic, calls from top Navy officials nationwide on Monday and Tuesday, with flag officers or their representatives inquiring into Crawford’s involvement in both matters.

It’s certainly not unusual for a JAG or other senior military attorneys to get involved in serious cases, to form opinions about whether prosecution is warranted, and to take action consistent with their opinions. Article 34, in fact, requires them to do precisely that. The emerging claim from the Barry and Lovelace cases, however, seems to be that Vice Adm. Crawford has – and acts on – a pro-prosecution bias.

Paradoxically, at the end of the Union-Tribune article that claim is offered as a justification to give lawyers more power in the military justice system:

Eugene R. Fidell, the military law instructor at Yale Law School, said both cases possibly linked to Crawford were very unusual but pointed out the need for broader reforms to the way the armed forces dispense justice.

“These cases illustrate that Congress needs to get serious about the military justice system and turn it from an 18th century system into one fit for the 21st century,” said Fidell. “Military decisions on who gets prosecuted, and for what, are based on a system that was used by King George III. Until that changes, you’ll continue to see controversies like these.”

Fidell has long advocated for lawmakers to strip commanders of the power to decide who is prosecuted, to pick jurors and to vacate verdicts and sentences, vesting charging authority instead with senior attorneys independent of the chain of command and jury selection with an outside and impartial commissioner.

CAAF docketed two new cases on Monday.

First, the Judge Advocate General of the Navy certified Hale, which I discussed here. The NMCCA reversed Hale’s convictions, and authorized a rehearing, because of a conflict of interest between his lead military defense counsel (a Marine captain, identified as Capt KC), her husband (another Marine captain, who was assigned as a trial counsel but not otherwise involved in the case, identified as Capt CC), and the prosecutor (a Marine lieutenant colonel, who was the regional trial counsel and supervised the husband, identified as LtCol CT). The JAG wants CAAF to review the legal test employed by the CCA:

No. 17-0537/MC. United States, Appellant v. James A. Hale, Appellee. CCA 201600015. Notice is hereby given that a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 on this date on the following issue:


Appellant will file a brief under Rule 22(b) in support of said certificate on or before the 30th day of August, 2017.

The CCA held “that where an appellant demonstrates that his counsel labored under an actual conflict of interest, and where the conflict had an adverse effect on the counsel’s performance, the appellant is entitled to a presumption of prejudice.” Slip op. at 13 (emphasis added).

Second, CAAF granted review in Mangahas, which I previously discussed here. The Air Force CCA granted a Government appeal and reversed a military judge’s ruling that dismissed a charge of rape with prejudice. The dismissal was granted after the military judge found that pre-preferral delay deprived the accused of due process in violation of the Fifth Amendment. CAAF will review the CCA’s decision:

No. 17-0434/AF. U.S. v. Edzel D. Mangahas. CCA 2016-10. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862, it is ordered that said petition is hereby granted on the following issue:


Pursuant to Rule 19(a)(7)(A), no further pleadings will be filed.

Charles E. “Chip” Erdmann’s 15-year appointment as a Judge on CAAF ended on Monday. We wish Chief Judge Erdmann fair winds and following seas.

He is replaced as Chief Judge by Scott W. Stucky, whose appointment expires on July 31, 2021 (the position of Chief Judge rotates by seniority every five years unless the judge’s appointment expires sooner).

A bit of trivia that I’m sure you will find useful is that Judge Ryan’s appointment expires on the same day as Chief Judge Stucky’s. In a rare moment of planning-ahead, Congress authorized her to retire one year early with full benefits in § 541 of the FY17 NDAA. It also passed a provision to prevent such same-day appointment expirations in the future.

Senior Judge Erdmann will continue to perform judicial duties, including in two cases still pending decisions by the court. The following notices were published in CAAF’s daily journal yesterday:

Notice – In Re October 2017 Term of Court

Article 142 of the Uniform Code of Military Justice, (UCMJ), 10 U.S.C. § 942 (2012), authorizes the appointment of five judges to serve on the Court. One of the positions is vacant. Unless the Court issues a notice that a senior judge or an Article III judge will perform judicial duties, the four judges in active service will perform the functions of the Court. See Articles 142 and 144, UCMJ, 10 U.S.C. §§ 942 and 944, and U.S.C.A.A.F. Rule 6(a).


No. 17-0049/MC. U.S. v. Tanner J. Forrester. CCA 201500295. [(CAAFlog case page)] In view of the existence of a vacant position on the Court, notice is hereby given that the Chief Judge has called upon Senior Judge Charles E. Erdmann to perform judicial duties in the above-referenced case, and that Senior Judge Erdmann has consented to perform judicial duties in said case under Article 142(e)(1)(A)(ii), Uniform Code of Military Justice, 10 U.S.C. § 942(e)(1)(A)(ii) (2012).

No. 17-0153/AR. U.S. v. Edward. J. Mitchell II. CCA 20150776. [(CAAFlog case page)] In view of the existence of a vacant position on the Court, notice is hereby given that the Chief Judge has called upon Senior Judge Charles E. Erdmann to perform judicial duties in the above-referenced case, and that Senior Judge Erdmann has consented to perform judicial duties in said case under Article 142(e)(1)(A)(ii), Uniform Code of Military Justice, 10 U.S.C. § 942(e)(1)(A)(ii) (2012).

There is no nominee for the vacancy.

I received a report from a DoD network user that CAAFlog is down. It isn’t.

Last Monday I moved CAAFlog to a new hosting provider. That required updating our DNS (the system that directs traffic for to a server located at Those updates take a little while to propogate, but should be fine now.

If you’re having trouble accessing CAAFlog, try

If it’s just you, I recommend submitting a support ticket to your IT department.

CAAFlog outages should be rare and brief, and the site should be snappy and responsive. If this isn’t your experience, please let me know at (our email server is separate from our web server).

A petition for certiorari was filed yesterday in Abdirahman, et al. v. United States, No 17-____. A copy is available here.

The petition consolidates 167 cases (including two courts-martial involving the same accused) and:

raises the same questions as those already presented in Ortiz v. United States, No. 16-1423 (U.S. filed May 19, 2017), and the same merits questions as those already presented in Dalmazzi v. United States, No. 16-961 (U.S. filed Feb. 1, 2017) and Cox v. United States, No. 16-1017 (U.S. filed Feb. 21, 2017).

Each of the 167 cases consolidated in this Petition presents facts that are identical in all relevant respects to those presented in Ortiz. That is to say, each Petitioner:

(1) was convicted by a court-martial;

(2) had their conviction affirmed by a panel of their service-branch Court of Criminal Appeals (CCA) that included at least one judge also serving at that time as an “additional judge” of the U.S. Court of Military Commission Review (CMCR);

(3) petitioned for review before the Court of Appeals for the Armed Forces (CAAF); and

(4) had CAAF grant their petition for review and affirm the decision of the CCA.

After sidestepping the questions presented in this Petition in Dalmazzi, see Dalmazzi v. United States, 76 M.J. 1 (C.A.A.F. 2016) (per curiam), CAAF reached them in Ortiz v. United States, 76 M.J. 189 (C.A.A.F. 2017). There, the Court of Appeals rejected a servicemember’s challenge to the continuing service of Colonel Martin T. Mitchell as a judge on the Air Force CCA after President Obama had signed his commission to serve as an “additional judge” on the CMCR. See id. CAAF did not decide whether Judge Mitchell’s dual officeholding violated 10 U.S.C. § 973(b)(2)(A)(ii) or Article II of the Constitution. Instead, it concluded that, at a minimum, his continuing service on the Air Force CCA was neither unlawful nor unconstitutional, without regard to whether his service on the CMCR might be. See id. at 192–93. After that ruling, the Court of Appeals issued summary, one-sentence orders affirming the CCAs’ rulings in each of the Petitioners’ cases.

Petitioners’ claims rise and fall with Ortiz. Therefore, this Petition should be held pending the disposition of the petition in Ortiz. If this Court grants certiorari in Ortiz and reverses or vacates the decision below, it should grant this Petition as well, vacate the judgments in all of the Petitioners’ cases, and remand to the Court of Appeals for further proceedings in light of this Court’s ruling in Ortiz.

Pet. at 1-2.

Event: The Joint Service Committee will hold a public hearing on Thursday, August 3, 2017, at 10 a.m. at CAAF to receive public comment on the proposed changes to the MCM (noted here).

This week at SCOTUS: The Solicitor General received a second extension of time to respond to the cert. petition in Ortiz. I’m not aware of any military justice developments at the Supreme Court, where I’m tracking six cases:

This week at CAAF: CAAF has completed its oral argument calendar for the term. A detailed list of this term’s cases is available on our October 2016 Term Page. The first oral argument date for the next term is October 10, 2017.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on August 8, 2017.

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.

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

As CAAF continues to deliberate on the interlocutory prosecution appeal in United States v. Mitchell, No. 17-0153/AR (CAAFlog case page) (argued on Tuesday, April 4, 2017), involving suppression of the contents of the accused’s cell phone because military investigators continued to question him after he requested an attorney and that questioning led to the phone’s decryption, a Marine judge advocate’s student note in the Georgetown Law Technology Review is of interest.

In Cracking the Code: The Enigma of the Self-Incrimination Clause and Compulsory Decryption of Encrypted Media, 1 GEO. L. TECH. REV. 247 (2017) (available here), Jason Wareham concludes that:

the act of decrypting a hard drive is protected by the Fifth Amendment, as the act of decryption, not just the sharing of the password, is itself testimonial. Decrypting is testimonial logically because it provides access to files no other person can know of or otherwise access. The act of encryption is an admission proving both the existence of the accused’s files, and the accused’s possessory relationship to these files. Since only the person who encrypted an item would have the key to decrypt it (presuming the knowledge-based password), it shows possession, dominion, or control. Finally, the accused’s act of production would be a necessary link in the authentication for the files should the prosecutor seek to have the evidence admitted in court, as no one but the accused would be able to confirm that the files produced are indeed the accused’s files.

Wareham suggests that “the jurisprudence governing compulsory decryption is poised to devolve into an indiscernible morass,” and that “there is no discernible rule, standard, or analysis emerging for the use of the act of production or foregone conclusion doctrines as applied to encryption.” So, two are suggested:

First, as a legal principle, practitioners, governments, and courts alike should accept that compelling an individual to either produce a password or to compulsorily decrypt their digital files in a private knowledge-based-key scheme is presumptively a testimonial act. . . .

[Second] if the decrypted files are not cumulative then they add something to the government’s case. If they add something to the government’s case, then the decrypted files are a link in the chain of evidence against the accused. If the decrypted files are a link and the decryption comes from the accused, then his self-incrimination right has been infringed because he was compelled to join that chain.

CAAF may well avoid this morass in Mitchell by applying the plain and relatively-simple language of Mil. R. Evid. 305(c)(2) that any evidence derived from an interrogation after a suspect requests counsel is inadmissible unless counsel was provided. I suggested this approach in my argument preview.

On Wednesday and Thursday CAAF summarily reversed and remanded 13 cases for further review in light of United States v. Hukill, 76 M.J. 219 (C.A.A.F. May 2, 2017) (CAAFlog case page). Full list after the jump.

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CAAF’s oral argument schedule for the October 2017 Term is:

October 2017: 10, 11, 24, 25

November 2017: 7, 8, 28, 29

December 2017: 5, 6

January 2018: 9, 10, 23, 24

February 2018: 6, 7, 27, 28

March 2018: 20, 21

April 2018: 3, 4, 5, 10, 11, 12, 24, 25

May 2018: 1, 2, 22, 23

Additionally, the Clerk of the Court and Chief Deputy Clerk’s orientation session for new attorneys is scheduled for 9:30 a.m. on Tuesday, September 26, 2017.

Rule for Courts-Martial 1001A addresses victim-impact statements, which are sworn or unsworn statements given by a victim during the sentencing phase of a court-martial. Upon a showing of good cause the statement may be given by counsel for the victim. R.C.M. 1001A(e)(2).

In United States v. Barker, __ M.J. __, No. 39086 (A.F. Ct. Crim. App. Jul. 7, 2017) (link to slip op.), a three-judge panel of the Air Force CCA finds that a military judge improperly admitted two unsworn written victim-impact statements during sentencing because:

None of the unsworn statements are self-authenticating and the Prosecution offered no evidence, other than the redacted statements them-selves (with their redacted titles), to establish that the statements are relevant to Appellant’s court-martial, to authenticate them as letters written by one of his victims, or to indicate that the victims desired to exercise their right to be reasonably heard at Appellant’s sentencing hearing through the statements.

Slip op. at 9.

The statements were allegedly written by people who were depicted in the images of child pornography that the appellant pleaded guilty to possessing and viewing, and the CCA acknowledges that “the Supreme Court has recognized that child pornography is a continuing crime and a child depicted in the images is victimized each time the images are downloaded and viewed.” Slip op. at 6 (citing Paroline v. United States, 134 S. Ct. 1710, 1716–17 (2014)). The CCA also acknowledges that:

Victim impact evidence is a form of aggravation evidence that, with a proper foundation, the Prosecution may introduce during a sentencing hearing under R.C.M. 1001(b)(4). Victim impact is also an appropriate topic for a sworn or (in the case of non-capital cases) unsworn statement offered by a victim in exercising his or her right to be reasonably heard during a sentencing hearing under R.C.M. 1001A(c).

Slip op. at 7-8. Nevertheless:

The Prosecution did not attempt to lay the necessary foundation for admission of hearsay victim impact statements under R.C.M. 1001(b)(4) and it appears that, sub silentio, the Prosecution was offering the statements under R.C.M. 1001A. An obvious and necessary foundational predicate for a statement offered under R.C.M. 1001A is that the victim (not just the Prosecution) wishes the court to consider the statement.

Slip op. 8. The CCA also addresses the rather-unique fact that the statements were written before the appellant’s crimes:

[T]he fact that a victim impact statement was authored before an accused’s criminal acts does not necessarily make the statement irrelevant to the accused’s offenses. However, there must be some evidence establishing a foundational nexus between the victim impact described in the statement and the subsequent offenses committed by the accused. The evidence must establish that the accused’s offenses impacted the victim at some point in the manner described in the statement, whether or not the victim continues to be impacted to the same degree, or even it all, by the time of trial. The fact that the victim may be suffering a lesser impact at the time of trial does not necessarily make the statement stale, but it may be a matter in mitigation. However, in conducting the required Mil. R. Evid. 403 balancing test, the military judge should consider the length of time since the statement was authored and the degree of lessened victim impact (if any) by the time of trial to ensure that the probative value of a statement prepared in advance of the trial is not substantially outweighed by a danger of unfair prejudice, misleading the sentencing authority, or any of the other listed factors.

Slip op. at 8.

The CCA finds the improper admission of two statements to be harmless.

On Tuesday CAAF granted review in this Air Force case:

No. 17-0405/AF. U.S. v. Sean C. Mooney. CCA 38929. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:


Briefs will be filed under Rule 25.

The CCA’s opinion is available here and is published at 76 M.J. 545. The appellant pleaded guilty before a federal district court and at a general court-martial to separate offenses all related to a sexual relationship with a 14-year-old. The federal plea (and sentence of imprisonment for six years) came first, and the court-martial plea (and approved sentence including confinement for two years) came second. The plea agreements made no provisions for whether those sentences would run concurrently or consecutively, but the convening authority ordered that they run consecutively (first the civil, then the court-martial). The Air Force CCA approved this decision, concluding that:

Given the support for this disposition in DoD and Air Force regulatory guidance and the absence of conflicting authorities within the UCMJ, we find the convening authority’s action was sufficient to toll the effective date of confinement under Article 57(b), UCMJ, and thereby require Appellant’s military sentence to confinement be served consecutively with his federal sentence.

76 M.J. at 549-550, slip op. at 7-8. The regulatory guidance is DoD 1325.7-M and Air Force Regulation 125-30, which suggest that court-martial sentences should be served consecutively with civil court sentences. The UCMJ, however, does not include a provision allowing consecutive sentences under the circumstances of this case (where a federal civil conviction is followed by a court-martial conviction). But the Code does address all other possible scenarios, permitting consecutive sentences where a court-martial conviction is followed by a civil conviction (Article 14), and where there is a court-martial sentence and one adjudged by a state or foreign court (Article 57a).

The Air Force CCA interpreted that silence as a grant of discretion:

In the case sub judice, Appellant’s sentence to confinement by a federal district court is not covered by the provisions of Article 57a. As such, we must determine whether the absence of guidance restricted the convening authority’s discretion in directing the running of Appellant’s military sentence to confinement. We hold, contrary to Appellant’s argument, that it did not.

76 M.J. at 548, slip op. at 8.

In United States v. Reese, 76 M.J. 297 (C.A.A.F. Jun. 14, 2017) (CAAFlog case page), a unanimous CAAF found no requirement to show prejudice in the case of an objected-to major change (functionally rendering this a structural error), and reversed a conviction of sexual abuse of a child after concluding that the change altered the means of committing the offense and was not fairly included in the original specification. The court also held that a novel Article 134 specification must allege an act or omission that is not already an enumerated Article 134 offense, reversing a conviction of a specification that amounted to obstruction of justice (but omitted an element of that offense).

Reese remained convicted of making false official statements and of wrongful use, possession, or distribution of marijuana, and CAAF remanded the case to the Coast Guard court to reconsider the adjudged sentence. Reese had pleaded guilty to all of those offenses except for one specification of making a false official statement (he contested the charges CAAF reversed), and he was sentenced by a general court-martial composed of a military judge alone to confinement for five years, reduction to E-1, and a dishonorable discharge.

Last week the Coast Guard CCA reassessed the sentence, reducing it dramatically:

We have reviewed the record in accordance with Article 66, UCMJ. Upon such review, the findings of guilty of Charges I and II and their specifications are reaffirmed. A sentence providing for confinement for three months, reduction to E-1, and a bad-conduct discharge is affirmed.

United States v. Reese, No. 1422, slip op. at 3 (C.G. Ct. Crim. App. Jul. 20, 2017) (link to slip op.).

Sometimes such reductions do not result in meaningful relief to the appellant because they come after the confinement has already been served. For Reese, however, the reduction is very meaningful, as he was sentenced in November 2014.

Last week CAAF granted review in this Air Force case:

No. 17-0392/AF. U.S. v. Robert A. Condon. CCA 38765. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue raised by appellate defense counsel:


And the following issue specified by the Court:


Briefs will be filed under Rule 25.

The CCA’s opinion is available here. The appellant raised a whopping 21 assignments of error, including 15 personally-asserted pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and the CCA’s opinion is a hefty 40 pages long with a six-page partial dissent. The CCA doesn’t mention the issue specified by CAAF, but it does address the granted issue explaining:

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