Zach has previously written on McMurrin v. United States and the merits of the petition.

For the appellate literati there is an interesting issue lurking in McMurrin which is not clearly addressed in his petition, but which may be addressed by the Solicitor General – that is the question of the court’s jurisdiction to entertain the petition.

NIMJ has the permission of the parties to submit an amicus petition.  A copy of the amicus brief is here.

You will see that we (disclosure, I am a director of NIMJ), raise the jurisdiction question, and seek to answer it.

As you will know, servicemembers have more limited access to the Supreme Court than a civilian appellant and “terrorists” housed at Guantanamo Bay, Cuba.  The inequality has been discussed off and on, and there have been attempts within Congress to give equal access.  See e.g. here, here, here, here, and here for some of the discussion.

Yesterday, this article from Cathy Young appeared on Slate.com. It’s an interesting read and well-worth the five minutes or so it takes to read it. Her final paragraph is particularly well stated:

Our focus on getting justice for women who are sexually assaulted is necessary and right. We are still far from the day when every woman who makes a rape accusation gets a proper police investigation and a fair hearing. But seeking justice for female victims should make us more sensitive, not less, to justice for unfairly accused men. In practical terms, that means finding ways to show support for victims of sexual violence without equating accusation and guilt, and recognizing that the wrongly accused are real victims too. It means not assuming that only a conviction is a fair outcome for an alleged sex crime. It means, finally, rejecting laws and policies rooted in the assumption that wrongful accusations are so vanishingly rare they needn’t be a cause for concern. To put it simply, we need to stop presuming guilt.

We’ve made a few mentions (in posts here and here) about the use of Air Force Adademy cadets as undercover informants for the Air Force Office of Special Investigations. On Monday, CAAF ordered a DuBay (post-trial fact-finding) hearing in a case that appears to involve one such informant:

No. 14-0409/AF.  U.S. v. Stephan H. CLAXTON. CCA 38188. Review granted on the following issue:

WHETHER THE GOVERNMENT’S FAILURE TO DISCLOSE THAT UNITED STATES AIR FORCE ACADEMY CADET ERIC THOMAS WAS A CONFIDENTIAL INFORMANT FOR THE AIR FORCE OFFICE OF SPECIAL INVESTIGATIONS (AFOSI) PURSUANT TO BRADY v. MARYLAND, 373 U.S. 83 (1963), WAS HARMLESS BEYOND A REASONABLE DOUBT.

The decision of the United States Air Force Court of Criminal Appeals is set aside, and the case is returned to the Judge Advocate General of the Air Force for remand to an appropriate convening authority to order a hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967), to make findings of fact and conclusions of law related to the discovery matter underlying the granted issue.  At the conclusion of the DuBay hearing, the record will be transmitted to the Court of Criminal Appeals for further review under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866(c) (2012). Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2012), shall apply.

The AFCCA’s opinion in the case is available here. The court did not discuss the informant issue.

Mike mentioned the trial-stage proceedings in this case in this post from 2012, and he provided a link to this Colorado Springs Gazette report about the Article 32 investigation in the case.

In an unpublished en banc opinion in United States v. Soto, No. 38422 (A.F. Ct. Crim. App. Sep. 16, 2014) (link to unpub. op.), the Air Force Court of Criminal Appeals reverses a conviction for forcible rape in violation of Article 120(a) (2006), finding that the Government failed to satisfy its burden to demonstrate that the appellant used physical force to cause the sexual intercourse.

The appellant was a military training instructor at Joint Base San Antonio-Lackland, Texas. A general order prohibited “developing or attempting to develop a personal, intimate, or sexual relationship with a trainee, including former basic trainees who remained in follow-on technical training school” and also prohibited “such relationships with a trainee’s immediate family member.” Slip op. at 2. The appellant engaged in numerous such relationships, leading to pleas of guilty before a general court-martial composed of a military judge alone to two specifications of violating a lawful general regulation, one specification of making a false official statement, and two specifications of adultery, in violation of Articles 92, 107 and 134.

However, the appellant was also charged with rape, aggravated sexual assault, and wrongful sexual contact involving his sexual encounters with one particular former trainee. He pleaded not guilty to these charges. The military judge acquitted the appellant of the aggravated sexual assault and wrongful sexual contact charges, but convicted him of the rape.

The rape charge involved a former trainee identified as Senior Airman (SrA) TS, who contacted the appellant after completing her basic training and flew from California to San Antonio in order to visit him. She planned to stay at the appellant’s apartment during the visit.

The incident that led to the rape specification took place soon after SrA TS arrived in San Antonio. She stated the appellant met her at the airport and as she entered his car, he promptly pushed her into her seat and kissed her. She stated she attempted to distract him by stating she wanted to go out to eat, but the appellant insisted they stop by his apartment to drop off her luggage. SrA TS stated she used the restroom in his apartment, and when she emerged from the restroom, the appellant hugged her, kissed her, took her to the bed, pulled down her shorts, and had sexual intercourse with her. SrA TS stated this was against her will; she pushed him and told him, “No, I’m not ready,” to no avail.

At trial and on appeal, the parties focused much of their attention on SrA TS’s actions following this charged rape. SrA TS continued to stay at the appellant’s apartment and slept in his bed for her five-day stay in San Antonio. When she returned to California, she continued to communicate with the appellant and sent him explicit pictures of herself. She also communicated with a friend from basic training that she was dating the appellant, that he was her boyfriend, and that the relationship was a “dream come true.” Although she considered herself in a relationship with the appellant, SrA TS also remained in an “on again, off again” relationship with her boyfriend in California during this time; however, the relationship was strained.

Over the next several months, SrA TS visited the appellant twice more, both times bringing family members to view houses for the family’s possible move to San Antonio. Some consensual sexual activity took place between SrA TS and the appellant during SrA TS’s visits to San Antonio, and she stayed with the appellant during each visit. During the last visit, SrA TS stated that she woke up after consuming alcohol to find herself unclothed in the appellant’s apartment smelling like she had sex. However, SrA TS could not state positively whether intercourse occurred, and she testified that she did not feel like she had sex. The appellant was acquitted of aggravated sexual assault and wrongful sexual contact resulting from this incident. Soon after this last visit, SrA TS and the appellant stopped communicating, and SrA TS married her boyfriend in California.

Slip op. at 3. The CCA considers these facts and the evidence presented at trial and concludes that the evidence is factually insufficient to support the rape conviction “on narrower grounds than the parties’ focus in their initial briefs, focusing solely on the evidence introduced about the charged rape itself.” Slip op. at 4. Writing for the court, Judge Weber avoids the appellant’s assertion “that SrA TS’s actions following the charged incident undermine her credibility and demonstrate her consent to sexual activity with the appellant,” focusing instead on the legal definition of force and the evidence presented on that element. Slip op. at 4.

Read more »

Over at Jurist.org, retired Marine judge advocate Lieutenant Colonel Robert Bracknell presents a strongly-worded proposal for greater transparency in the military justice system:

Disappointingly, two simple reforms that could transform the landscape of military justice have been wholly overlooked. This is the first of a two-part series addressing each of these issues, advocating modest, affordable, easy to implement reforms that would improve transparency and public accountability for the military justice process. First, Congress must amend the Uniform Code of Military Justice (UCMJ) to mandate real-time, open access to paper and electronic court-martial records. The legislation should direct open access through PACER or some other electronic online system on the same basis and availability as the records of Article III courts—without a requirement to wield the Freedom of Information Act (FOIA) to gain access to military judicial records. Second, Congress should mandate unrestricted access to records of attorney and judicial misconduct on the same basis as the professional standard set by most state bars and judicial codes of conduct.

Noting that “the past few years have been simply dreadful for military justice,” Lieutenant Colonel Bracknell gives examples and finds that “the anecdotes and metrics at least suggest a problem in culture, legal and command competence and ethics and senior leadership.” Along these lines he believes that “the opaqueness of the military justice system itself is one very important aspect of the wider institutional failure.” He concludes:

Improving access to information can lead to greater political and supervisory accountability for military justice decisions and outcomes and can help shape the debate regarding military justice in terms of expanding or contracting the rights of the accused, refining offenses and changing judicial procedures for greater efficiency and effectiveness.

I wholeheartedly agree, and I’ve repeatedly written about the need for greater transparency when considering issues like the appearance of bias in the certification of cases by the Judge Advocate General of the Air Force, and even the very existence of this blog.

 

In United States v. Kish, No. 201100404 (N-M. Ct. Crim. App. Jun. 17, 2014) (Kish III) (link to unpub. op.) (discussed here), the NMCCA reversed the convictions (for orders violations) of a Marine Corps recruiter (who engaged in various forms of recruiter misconduct) after determining that “the military judge’s conduct warrants a remedy to vindicate the public’s confidence in the military justice system.” Kish III, slip op. at 8. That conduct included “needlessly interject[ing] himself into the examination of witnesses and engag[ing] in lengthy and largely irrelevant questioning.” Kish III, slip op. at 3. It also involved post-trial conduct by the judge, Lieutenant Colonel Robert G. Palmer, who:

Two weeks after the sentence rehearing, on 21 June 2012, the military judge presented a Professional Military Education (PME) lecture to five “summer funners,” Marine law school students on active duty for the summer. In his two-hour lecture, the military judge spoke at length about the responsibilities of trial counsel and for a shorter period of time about defense counsel duties. Two of the officers who attended the PME were troubled by some of his comments, and drafted statements summarizing those particular comments.

Kish III, slip op. at 4. The fallout from the judge’s PME lecture was part of our #8 story in the Top Ten Military Justice Stories of 2012, and it led to appellate litigation in a parade of cases. Last September, CAAF remanded eleven cases to the NMCCA for further consideration of this issue (remands discussed here).

The CCA decided the first of those eleven cases yesterday. In a per curiam opinion in United States v. Bailey, No. 201200370 (N-M. Ct. Crim. App. Sep. 16, 2014) (link to unpub. op.), a three-judge panel of the court reviews an assertion that the appellant “was deprived of his constitutional right to an impartial judge.” Slip op. at 2. Like the appellant in Kish, the appellant in Bailey was a recruiter who engaged in various forms of misconduct. But unlike the appellant in Kish (who pleaded not guilty and was convicted after a contested trial with members, into which the judge injected himself), the appellant in Bailey pleaded guilty before the military judge sitting alone as a special court-martial.

Finding no error deserving of relief in Bailey, the CCA panel (including one of the appellate judges from the panel that considered Kish III) notes:

The appellant has cited no examples at his court-martial where the military judge acted improperly or in any way demonstrated a lack of impartiality. A thorough reading of the record reveals none. To the contrary, the military judge was particularly careful to avoid hearing or seeing any inadmissible evidence offered by the Government.5Unlike inKish, the military judge did nothing at trial to bring his impartiality into question. Thus, in this case, the effect of the PME comments is not compounded with anything at trial to reach the level of undermining public confidence in the judicial system’s integrity.

Bailey, slip op. at 5-6.

But in Bailey the CCA appears to soften its characterization of the PME discussed in Kish III. Writing for the CCA in Kish III, Chief Judge Modzelewski explained:

A reasonable person who observed or had knowledge of the trial judge’s conduct in Kish I and the comments he made during his PME lecture would have a serious question as to the fairness and impartiality of the court-martial. Said another way, such a person would have viewed the entire Kish trial quite differently in light of the military judge’s PME lecture. That observer may well have concluded that, by hijacking the direct examination of AS, the military judge was telegraphing a message that the trial counsel was not aggressive enough and was not overwhelming the members with an avalanche of evidence, as he exhorted the Marine law students to do. It would thus appear that the military judge became a second prosecutor to show trial counsel “how it should be done.”

Kish III, slip op. at 7 (emphasis added). But in the per curiam opinion in Bailey, the CCA explains:

An examination of the entire circumstances surrounding the PME lecture, however, places the statements properly in context. We are satisfied that any reasonable person knowing all the circumstances of the lecture, as well as the manner in which the military judge conducted the proceedings in this case, would not question the integrity of the judicial system. Unlike in Kish, there is no “nexus between the military judge’s conduct during [Kish’s] trial and his later comments” at the PME lecture. Kish, 2014 CCA LEXIS 358 at *13. Rather, the contrast between the military judge’s comments and his performance during the court-martial tends to underscore this court’s conclusion that he was speaking during the lecture in character, and not in his own voice. Accordingly, we find no apparent bias.

Bailey, slip op. at 6-7 (emphasis added).

Significant military justice event: A meeting of the Judicial Proceedings Panel will be held on Friday, September 19, 2014. The public session will begin at 8:45 a.m. and end at 5:00 p.m. The meeting will occur at the Holiday Inn, Glebe and Fairfax Ballrooms, 4610 N. Fairfax Drive, Arlington, Virginia 22203. Federal register notice available here.

This week at SCOTUS: The Solicitor General waived the Government’s right to respond to the cert petitions in Swiger v. United States and McMurrin v. United States. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking seven cases:

This week at CAAF: The next scheduled oral argument at CAAF is on October 7, 2014.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on September 16, 2104, at 10 a.m.

United States v. Brown, No: 20130177

Issue: Whether the military judge abused his discretion by using the term “competent decision” to define “substantially incapacitated” in the jury instruction, thereby lessening the government’s burden of proof for the element of substantial incapacitation.

This week at the AFCCA: The Air Force CCA’s website should 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 next schedule oral argument at the Navy-Marine Corps CCA is on October 1, 2014.

CAAF granted review and ordered briefs in three cases yesterday.

First is an Air Force case:

No. 14-0166/AF.  U.S. v. Brittany N. OLSON.  CCA S32034.  Review granted on the following issue:

WHETHER THE MILITARY JUDGE ERRED BY DENYING THE DEFENSE’S MOTION TO SUPPRESS THE EVIDENCE SEIZED FROM APPELLANT’S HOUSE BECAUSE THE TOTALITY OF THE CIRCUMSTANCES INDICATED THAT APPELLANT’S CONSENT TO SEARCH WAS INVOLUNTARY.

The Air Force CCA’s opinion is available here. The CCA considered the granted issue and determined that Appellant voluntarily consented to the search.

Next is an Army case:

No. 14-0495/AR.  U.S. v. Matthew R. ADAMS, Jr.  CCA 20110503.  Review granted on the following issue:

WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED IN FINDING THAT THE MILITARY JUDGE DID NOT ABUSE HIS DISCRETION IN ADMITTING THE PORTION OF APPELLANT’S SWORN STATEMENT REGARDING THE [THEFT] OF COCAINE BECAUSE THE GOVERNMENT FAILED TO CORROBORATE, IN ACCORDANCE WITH MILITARY RULE OF EVIDENCE 304(g), THE ESSENTIAL FACT THAT APPELLANT TOOK COCAINE.

The Army CCA’s opinion is available here. The CCA considered the granted issue and rejected it, reasoning that “the issue is not whether the government failed to corroborate whether appellant ‘took cocaine,’ but rather whether the corroborating evidence justifies the inference as to the truth of the essential facts of the confession.” United States v. Adams, No. 20110503, slip op. at 3 (A. Ct. Crim. App. Jan. 29, 2013). The court concluded that “it is reasonable to infer the truth of the essential facts in appellant’s confession to stealing cocaine. This inference is drawn from the following facts: the victim of the cocaine theft shared a similar, yet uncommon, name to a known drug dealer in the local Fort Drum area; a weapon matching the description of the one appellant stated he used in the theft was found in his residence four days after the incident; and the named locations of the meeting place and the theft were in the local area and in close proximity to one another.” Slip op. at 5.

Last is a Marine Corps case:

No. 14-0524/MC.  U.S. v. Troy B. NORMAN.  CCA 201300152.  Review granted on the following 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.

The NMCCA’s opinion is available here. Appellant was convicted of a single specification of endangering a child in violation of Article 134 charged as service discrediting conduct. Over Defense objection, a noncommissioned officer testified that “anybody who would do that would bring discredit upon themselves, but especially a Marine, because of the high opinion that we are . . . held to by the public.” United States v. Norman, No. 201300152, slip op. at 4 (N-M. Ct. Crim. App. Feb. 20, 2014) (quoting Record at 712) (omission in original). The CCA assumed error in the admission of this testimony but found it harmless, reasoning that “the members did not need the SNCO’s generic testimony to establish the terminal element; in fact, they required no testimony at all regarding this element.” Id.

Notably absent is a grant in a Navy case (Coast Guard cases are rare enough that the absence isn’t notable at this time). As I noted in Part I of my 2013 End o’ Term Stats, CAAF didn’t hear oral argument or issue an authored opinion in a single Navy case last term (and it issued summary dispositions in just three Navy cases). Moreover, there are no Navy cases on CAAF’s master docket (last term ended with 28 cases on the master docket and the three new grants takes the total to 31 – the breakdown is: 17 Air Force, 11 Army, 3 Marine Corps).

The last authored CAAF opinion in a Navy case was Chief Judge Baker’s unanimous opinion in United States v. Brown, 72 M.J. 359 (C.A.A.F. Jul. 15, 2013) (CAAFlog case page). That case was also the last time CAAF heard oral argument in a Navy case – on May 14, 2013.

In an unpublished opinion in United States v. Torres, No. 201300396 (N-M. Ct. Crim. App. Aug. 28, 2014) (link to unpub. op.), a three-judge panel of the NMCCA rejects an equal protection claim, an as-applied vagueness claim, and an assertion that the military judge erred in using “knowledge of human nature and the ways of the world” in assessing the evidence in a judge-alone trial. Slip op. at 8.

Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of sexual assault and adultery in violation of Articles 120 and 134. He was sentenced to confinement for two years, reduction to E-1, and a dishonorable discharge. The convictions stemmed from Appellant’s sexual encounter with the heavily-intoxicated wife of another Marine during a house party. The woman – identified as “AM” – fell asleep in a bathroom. Then:

The next thing AM remembered was waking up in the spare bedroom on the air mattress. She had no memory how she got there and was disoriented and in discomfort; she then realized that someone was having sexual intercourse with her. As she started to wake up, she realized that she was wearing only a bikini top. The tank top, shorts, and underwear that she had worn while asleep in the bathroom had been removed.2 By the time she regained her senses, AM saw the appellant, naked, lying next to her. She rolled off the air mattress, grabbed some clothes that were on top of her red suitcase, and went to look for her husband.

Slip op. at 4. AM tried to awaken her husband, who had fallen asleep on a patio table, but he fell to the floor and started bleeding. AM then called 911 and reported her husband’s injuries and that she had been raped.

Appellant was convicted of sexual assault in violation of Article 120(b)(3)(A) (2012): committing a sexual act upon a person who is incapable of consenting due to impairment by an intoxicant. At trial Appellant did not contest that he had a sexual encounter with AM, but asserted that it was consensual and that AM was capable on consenting. Slip op. at 6. On appeal he asserted that the prosecution deprived him of equal protection because he had “higher symptoms of impairment [than AM],” slip op. at 11, that the term “[i]ncapable of consenting to the sexual act due to impairment by alcohol” is unconstitutionally vague, slip op. at 13, and that the military judge improperly used his own “human experience” in place of the evidence presented at trial, slip op. at 9. The CCA rejects all three errors.

Read more »

Back in April, in this post, I discussed the NMCCA’s decision in United States v. Loiacono, No. 201200451 (N-M. Ct. Crim. App. Mar. 25, 2014), rev. denied, __ M.J. __ (C.A.A.F. Jul. 29, 2014), in which the CCA rejected the appellant’s claim  of judicial bias arising from improper questioning of a witness by the judge that led to improper testimony from the witness (requiring what the CCA called a “strong curative instruction,” slip op. at 31).

Now, in United States v. Williams, No. 20130284 (A. Ct. Crim. App. Aug. 28, 2014) (link to slip op.), a three-judge panel of the Army CCA finds plain error in a military judge’s questions to a sentencing witness. The Government repeatedly tried to elicit testimony from the witness about the effect of the appellant’s offenses on the unit. But that testimony was focused on the administrative after-effects, with observations such as:

CPT JF: Okay. Well besides the soldiers being upset that he wasn’t receiving a punishment and they had, there was even threatening against him, especially when the barracks incidents happened; that they wanted to take into his [sic] own hands because they felt justice wasn’t being served to him fast enough. When it came to — our unit was extremely busy with a lot of missions at the time. When it came — I had to bring NCOs out to escort him around to make —-

Slip op. at 9-10. The problem with this testimony is that a service member’s invocation of the right to refuse administrative punishment and require that the Government conduct a court-martial, and any associated delay, is not a matter in aggravation. Neither is the fact that others the his unit contemplated vigilantism. The Defense repeatedly objected to the questions, and the judge sustained the objections. But then the judge questioned the witness:

MJ: [CPT JF], you talked about the impact on the unit about the other soldiers observing what they felt was the slow pace of justice and wanting to take matters into their own hands. What do you base that observation on?

CPT JF: Yes, sir. I mean, rumors and hearsay had gotten to me that they were threatening beating him down.

MJ: And how was that transmitted to you?

CPT JF: Through NCO channels, like, “Hey, sir. These soldiers want to beat him up.”

Slip op. at 10. The Defense did not object to the judge’s questions.

Read more »

Audio of today’s oral argument at CAAF in United States v. Vargas, No. 14-6009/MC (CAAFlog case page) is available here.

Military Rule of Evidence 304(c) (2013) (formerly M.R.E. 304(g)) states the corroboration rule, beginning with this paragraph:

An admission or a confession of the accused may be considered as evidence against the accused on the question of guilt or innocence only if independent evidence, either direct or circumstantial, has been admitted into evidence that corroborates the essential facts admitted to justify sufficiently an inference of their truth.

M.R.E. 304(c)(1). An excellent article by Colonel J. Wesley Moore, USAF, The Corroboration Quandary: A Historical Overview of the Interpretation of MRE 304(g), 63 A.F. L. Rev. 89 (2011) (available here), provides a comprehensive analysis of this rule. And CAAF had two good occasions during the past term to weigh in on this subject, first in United States v. McPherson, 73 M.J. 393 (C.A.A.F. 2014) (CAAFlog case page), where the court rejected the defense efforts to obtain review of the AFCCA’s back-to-the-future theory of corroboration (discussed here and here), and second in United States v. McIntyre, No. 14-6005/AF, where the court summarily rejected an Air Force certification of the AFCCA’s rejection of a Government interlocutory appeal of a military judge’s ruling that suppressed a confession due to lack of corroboration (discussed here).

But I’ve long believed that the rule is worthy of a fresh analysis by our civilian court in part because confessions are the least reliable form of proof known to the law. A confession is the only form of proof that is both presumed inadmissible (when challenged, the Government has the burden to show admissibility) and requires corroboration (separate from the confession itself or another confession). Unlike eyewitness identification, circumstantial evidence, or inconsistent testimony from an alleged victim loaded with bias and prejudice, an accused cannot be convicted on his confession alone.

A recent unpublished decision by a three-judge panel of the Navy-Marine Corps CCA, in United States v. Green, No. 201300276 (N-M. Ct. Crim. App. July 31, 2014) (link to unpub. op.), might just get the corroboration rule back to CAAF. The CCA affirms the findings and sentence, that include a conviction for rape of a child and a sentence of confinement for 140 months, after concluding that the appellant’s confession was sufficiently corroborated.

Read more »

In volume 63 of the Naval Law Review, Commander Robert P. Monahan, Jr., JAGC, USN, writes A Proposal to Conform Military Rule of Evidence 305 in light of the Supreme Court’s Holdings in Maryland v. Shatzer and Berghuis v. Thompkins, 63 Naval L. Rev. 67 (2014). Commander Monahan proposes modifying MRE 305(e)(3)(A) to incorporate the 14-day break in custody requirement from Maryland v. Shatzer, 559 U.S. 98, 110 (2010); modifying MRE 305(c)(4) to require an unambiguous invocation of the right to remain silent drawn from Berghuis v. Thompkins, 560 U.S. 370, 388-389 (2010); and modifying MRE 305(e)(1) and 305(e)(2) to permit implied waiver of the right to remain silent. This is a direct link to the beginning of the article in the complete volume of the Naval Law Review, hosted on the Navy’s website. This is a link to just the article, hosted on CAAFlog.

In the July volume of The Army Lawyer (link to full volume’s table of contents and articles), there are three notable articles:

  • Major Dane B. Getz, USAR, Closing the Gap in Access to Military Health Care Records: Mandating Civilian Compliance with the Military Command Exception to the HIPAA Privacy Rule, Army Law., July 2014, at 4 (direct link to article). Major Getz’s article reveals what I think is a disturbing institutionalized lack of respect for the protected nature of medical records. For example, the article considers a hypothetical situation where a “commander needs the NCO’s (non-commissioned officer’s] PHI [protected health information] as soon as possible to determine his continued fitness for duty and assess whether he may pose a danger to himself and others.” Id. at 5. Precisely what the commander (not a medical provider) will do with that information is unclear. Further, the article discusses the outrageous practice of issuing orders to Soldiers “to sign civilian medical release forms in their favor and/or turn over copies of their civilian PHI directly to commanders,” id. at 5 n.9, and labels Soldiers who wish to preserve their medical privacy as “medically non-compliant,” id. at 7 n.34.
  • Major Brent A. Goodwin, USA, Congress Offends Eisenhower and Cicero by Annihilating Article 60, UCMJ, Army Law., July 2014, at 23 (direct link to article). Major Goodwin’s articles discusses the changes to Article 60(c) in the FY14 NDAA and joins the debate over the meaning of the clemency limitations, ultimately agreeing with (though not discussing) my conclusion that in all cases the statute allows reduction of punishments that are not confinement for more than six months or a punitive discharge. Id. at 28. See this post.
  • Captain Jeremy R. Bedford, USA, Eligibility for VA Disability Compensation and Health Care Benefits for Army National Guardsmen Discharged with an Other Than Honorable Discharge, Army Law., July 2014, at 36 (direct link to article). Captain Bedford’s article concludes: “The interpretation of VA benefits eligibility in AR 135-178 needs to be revised to clarify that an ARNG’s [Army National Guard] OTH [administrative discharge under other than honorable conditions] will not affect the disability compensation and health care benefits to which Guardsman are entitled on the basis of a previous honorable active service deployment.” Id. at 39.

In the August volume of The Army Lawyer (link to full volume’s table of contents and articles), there are three notable articles:

  • Colonel James F. Garrett, USA, Colonel Mark “Max” Maxwell, USA, Lieutenant Colonel Matthew A. Calarco, USA, and Major Franklin D. Rosenblatt, USA, Lawful Command Emphasis: Talk Offense, Not Offender; Talk Process, Not Results, Army Law., August 2014, at 4 (direct link to article). The article coins a new term: lawful command emphasis. “Lawful command emphasis is, in short, the appropriate actions commanders or staff members can take within the military justice process to ensure good order and discipline is maintained within the ranks.” Id. at 6.
  • Major Matthew E. Wright, USA, A Distinction with a Difference: Rule for Courts-Martial 304 Pretrial Restraint and Speedy Trial, Army Law., August 2014, at 22 (direct link to article). Major Wright’s article discusses “the spectrum of restraint [that] begins with no restraint and progresses through conditions on liberty, restriction, arrest, restriction tantamount to confinement, and finally, confinement. A progressively onerous array of collateral consequences linked to the severity of the restraint imposed provides strong incentives for commanders to remain as close to the beginning of this spectrum as possible.” Id. at 25.
  • Colonel James W. Herring, Jr., USA, A View from the Bench: Make the Routine, Routine (U.S. Army Legal Services Agency Trial Judiciary Note), Army Law., August 2014, at 41 (direct link to article). Colonel Harring’s article discusses issues with specifications (i.e., the specifications on the charge sheet), script (i.e., the trial guide), and suspenses (i.e., deadlines).

This week at SCOTUS: A cert petition was filed in McMurrin v. United States, No. 14-262, on August 29, 2014. I discussed the petition and the history of the case in this post. The Government’s response is due on October 6. 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 will hear the first oral argument of the 2014 term on Tuesday, September 9, 2014, at 9:30 a.m.:

United States v. Vargas, No. 14-6009/MC (CAAFlog case page)

Issue: 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.

Case Links:
NMCCA opinion
Blog post: The NMCCA finds that Article 62 authorizes appeals of recesses
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview

This week at the ACCA: The next scheduled oral argument at the Army CCA is on September 16, 2104.

This week at the AFCCA: The Air Force CCA will hear oral argument in the Article 62 appeal of United States v. Bowser, No. 2015-08, on Wednesday, September 10, 2014, at 10 a.m. The case involves dismissal of sexual assault charges due to Government discovery violations (discussed in this post).

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 will hear oral argument in one case this week, on Wednesday, September 10, 2014, at 10 a.m.:

United States v. Riggins

Case Summary: A military judge, sitting as a general court-martial, convicted the appellant, pursuant to his pleas, of two specifications of violating a lawful general order, making a false official statement, and adultery, in violation of Articles 92, 107, and 134, UCMJ, 10 U.S.C. §§ 892, 907, 934 (2006). The appellant was convicted, contrary to his pleas, of six specifications of assault consummated by a battery, and one specification of indecent language in violation of Articles 128 and 134, UCMJ, 10 U.S.C. §§ 928 and 934 (2006). The military judge sentenced the appellant to three years confinement, reduction to pay-grade E-1, and a bad-conduct discharge. The convening authority approved the sentence as adjudged, and except for the punitive discharge, ordered the sentence executed.

Issue: Whether the military judge erred when he found that assault consummated by a battery was a lesser-included offense of abusive sexual contact and sexual assault as charged in the additional charge.

CAAF upended lesser-included offenses jurisprudence in the military justice system with its opinions in United States v. Medina, 66 M.J. 21 (C.A.A.F. 2008) (discussed here) (finding that in Article 134, clause 1 & 2 are not LIOs of clause 3), United States v. Miller, 67 M.J. 385 (C.A.A.F. 2009) (discussed here) (finding that a simple neglect under Article 134 is not a LIO of every enumerated article), and United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010) (discussed here) (returning to the elements test for determining LIOs).

Applying those cases, CAAF determined that negligent homicide (in violation of Article 134) is not a lesser-included offense of either murder (in violation of Article 118) or involuntary manslaughter (in violation of Article 119) in a pair of cases decided on the same day: United States v. Girouard, 70 M.J. 5, 9 (C.A.A.F. 2011) (link to slip op.), and United States v. McMurrin, 70 M.J. 15, 18 (C.A.A.F. 2011) (link to slip op.). I discussed both cases in a 2011 post titled Pushing the LIO Easy Button (and noted a humorous citation in a post titled A Mobius Strip of Citation).

McMurrin involved a Sailor who, in 2008, went on a cocaine and heroin binge with a fellow Sailor (update: McMurrin used only cocaine while the other Sailor combined the two drugs). The other Sailor died at the end of the night after McMurrin left him in the bushes to “sleep it off.” Among other charges, McMurrin was charged with involuntary manslaughter in violation of Article 119, but he was convicted of negligent homicide in violation of Article 134 as a lesser-included offense. Involuntary manslaughter is a homicide caused by culpable negligence, while negligent homicide requires only simple negligence. However, as an enumerated offense under Article 134, negligent homicide must also be prejudicial to good order and discipline or of a nature to bring discredit upon the armed forces; an additional element not found in the Article 119 charge. So, applying Miller and Jones, the NMCCA set aside the finding of guilty of involuntary manslaughter in a published, en banc opinion. United States v. McMurrin, 69 M.J. 591 (N-M.Ct.Crim.App. 2010) (link to slip op.). The Judge Advocate of the Navy certified the case to CAAF, where the CCA was affirmed (link to CAAF op.).

Because McMurrin’s homicide conviction was reversed, the CCA ordered a sentence rehearing. But when the case was returned to the convening authority, charges were added, including a charge of negligent homicide under Article 134. McMurrin was then tried and convicted of the new negligent homicide charge, and sentenced for both the new and old convictions. On appeal he asserted that the convening authority’s action adding charges exceeded the scope of the mandate on remand, but the NMCCA rejected that argument in an unpublished opinion. United States v. McMurrin, No. 200900475 (N-M.Ct.Crim.App. Jun 27, 2013) (discussed here) (link to slip op.). CAAF then denied review.

On August 29 McMurrin filed a cert petition with the Supreme Court. The petition is available here.

Read more »