Military justice blogs are to blogs
as military music is to music.
1 Comment Audio of today’s oral argument in LRM v. Kastenberg, No. 13-5006/AF, is available at this link.
I haven’t listened to the recording yet, but I do see that it’s an hour and 18 minutes long. Since each of the participants was to receive 15 minutes to argue, there was apparently a lot of bonus time granted.
Here is an ArmytTimes report on Sen. Gillibrand’s victory today in the SASC Personnel Subcommittee. Her Military Justice Improvement Act of 2013 apparently won approval in her subcommittee without debate, reports Army Times. But the NY Daily News, here, and others report that Sen. Levin, SASC chair, will propose an alternative to the sweeping change in the MJIA. Sen. Levin’s amendment will reportedly offer “an alternative measure that requires automatic review of any general’s decision not to prosecute sexual assault at the next level of command during the committee’s markup of an annual defense authorization bill Wednesday.”
For those interested there are UNOFFICIAL transcripts of the trial at this link.
https://pressfreedomfoundation.org/bradley-manning-transcripts
Here is a link to live feed for the Senate Armed Services Committee’s Personnel Subcommittee and their markup of the FY2014 NDAA, which will likely include substantial discussion of MilJus changes in light of Chairwoman Kirsten Gillibrand’s proposed legislation, the Military Justice Improvement Act of 2013. If the link doesn;t work, go to the SASC homepage, here, and click on the link to the live feed.
United States v. Foxx, No. 20110272 (A.Ct.Crim.App. May 29, 2013).
Accused convicted, in accordance with his pleas, of bigamy (yes, really) in violation of Article 134. Sentenced to confinement for two months, forfeitures, reduction to E-1, and a bad-conduct discharge. This was his second of two courts-martial in 2011; the first occurred on January 27 (for wearing unauthorized awards), and this one occurred on April 5. He alleged – perhaps unsurprisingly – ineffective assistance of counsel, in part because his defense counsel “‘allowed’ appellant, who had sixteen years of service, to request a bad-conduct discharge during sentencing.” Slip op. at 2 (the world “allowed” is in quotes in the opinion). The CCA affirms the findings and sentence.
United State v. Whigham, No. 20110181 (A.Ct.Crim.App. Jun. 4, 2013).
Accused convicted, contrary to his pleas by a general court-martial composed of officer and enlisted members, of two specifications each of violating a general regulation and aggravated sexual assault, in violation of Articles 92 and 120(c), and sentenced to confinement for four years, total forfeitures, and a dishonorable discharge. The Accused was an instructor at Advanced Individual Training at Aberdeen Proving Ground, and this was his second of two courts-martial regarding sexual misconduct with students under his charge. Before the CCA he alleges legal and factual insufficiency, and improper admission of evidence under Mil.R.Evid. 404(b) and 413 (relating to sexual contact with students leading to his first court-martial, where he pleaded guilty to improper relationships with trainees). The CCA affirms the findings and sentence.
United State v. Axtell, No. 20120267 (A.Ct.Crim.App. Jun. 5, 2013) (en banc).
Accused convicted, pursuant to his pleas, of conspiracy to distribute methamphetamines, distribution of methamphetamines, wrongful use of methamphetamines, and wrongful use of marijuana, in violation of Articles 81 and 112a, and sentenced to confinement for 135 days and a bad-conduct discharge. Before the CCA he alleges that he “was denied his opportunity to request deferment of automatic forfeitures during the post-trial phase of his court-martial.” Slip op. at 1-2. He didn’t request deferment, but he also doesn’t allege that his counsel was ineffective. So the CCA, sitting en banc, seems to wonder, “why did we all get together for this?” A concurring opinion makes this explicit: “The precise legal theory underlying appellant’s assignment of error is unclear.” Slip op. at 7. Yikes. Findings and sentence affirmed.
(Actually, there’s more to Axtell than this, but it requires reading between the lines. It seems that there was a Post-Trial and Appellate Rights (PTAR) form that gave the Appellant the ability to make numerous elections of things he wanted his defense counsel to do, including electing to request deferment of forfeitures, which he chose. But that form-letter choice to have his counsel request deferment didn’t turn into an actual deferment request. Appellate defense counsel then claimed that the Appellant was denied his chance to submit the deferment request (but didn’t make it an IAC claim – nice of him).)
As attention turns to the newest leaker in recent US past, the court-martial of PFC Bradley Manning continues, AP (via WaPo) report here.
Marine Corps Times reports, here, on the law professors’ letter to Congress that we posted last week, here.
The SASC votes on various MilJus changes proposed by Sen Billbrand to, as she’s framed it, address sexual assault in the military. See SASC site here. See Pitt Post-Gazette coverage of the markup here. And lastly Sunday’s Face the Nation segment featuring Sens. Gillibrand and Speier can be found here-I’ll admit I missed the show.
Here is an interesting MRE 414 (unpublished) case from the Air Force – United States v. Huebner.
A general court-martial composed of officer members convicted the appellant, contrary to his plea, of one specification alleging that he engaged in unlawful sexual contact by intentionally touching the genitalia and anus of his 14-month-old son, ECH, with an unknown object on a single occasion, in violation of Article 120, UCMJ, 10 U.S.C. § 920. The adjudged and approved sentence was a dishonorable discharge, confinement for 14 years, and reduction to E-1. The appellant argues that (1) the military judge erred by admitting other-acts evidence pursuant to Mil. R. Evid. 414, (2) his sentence is inappropriately severe, and (3) he received ineffective assistance of counsel. As we agree that the admission of the Mil. R. Evid. 414 evidence was an abuse of discretion because there was insufficient evidence that it was the appellant who caused those prior injuries, and because we are unable to say that the error was harmless, we reverse.
The case seems fact specific without setting out new law. But it’s the Air Force so can we expect a certification?
This week at SCOTUS: With last week’s denial of cert in Behenna v. United States, No. 12-802, there are now no military justice cases pending SCOTUS action for the first time in over a year.
This week at CAAF: CAAF will hear the final oral argument of the term on Tuesday, June 11, 2013:
LRM v. Kastenberg, No. 13-5006/AF (CAAFlog case page)
Issues:
I. Whether the CCA erred by holding that it lacked jurisdiction to hear A1C LRM’s petition for a writ.
II. Whether the military judge erred by denying A1C LRM the opportunity to be heard through counsel, thereby denying her due process under the Military Rules of Evidence, the Crime Victims’ Rights Act, and the United States Constitution.
III. Whether a writ should be issued.
Case Links:
• AFCAA opinion
• Blog post: AFCCA denies complaining witness’ petition
• Appellant’s (complaining witness) brief
• Appellee’s (military judge) brief
• Real Party in Interest’s (accused) brief
• Appellant’s reply brief
• Amicus brief of Air Force Appellate Government Division (Brief of the United States)
• Amicus brief of Army Appellate Defense Division
• Amicus brief of Navy-Marine Corps Appellate Defense Division
• Blog post: Argument preview
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 pending cases at the Coast Guard CCA.
This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.
CAAF will hear oral argument in LRM v. Kastenberg, No. 13-5006/AF, on Tuesday, June 11, 2013. The case involves three issues certified to CAAF by the Judge Advocate General of the Air Force addressing whether LRM (an alleged victim in a sexual assault case pending trial by court-martial) has a right to make legal arguments to the trial judge on evidentiary matters by and through her counsel. That counsel is an Air Force judge advocate provided to LRM through the Air Force Special Victims’ Counsel (SVC) program.
The military judge denied LRM’s request, finding that the right to be heard in the Military Rules of Evidence only allows an alleged victim the right to be heard personally, of through a guardian in the case of incompetency. LRM petitioned the AFCCA for a writ of mandamus, but that court found that it lacked jurisdiction to grant the writ “regarding this particular, collateral, civil/administrative issue involving a non-party to the court-martial.” The JAG then certified the following issues:
I. Whether the Air Force Court of Criminal Appeals erred by holding that it lacked jurisdiction to hear A1C LRM’s petitino for a writ of mandamus.
II. Whether the military judge erred by denying A1C LRM the opportunity to be heard through counsel thereby denying her due process under the Military Rules of Evidence, the Crime Victims’ Rights Act and the United States Constitution.
III. Whether this Honorable Court should issue a writ of mandamus.
The parties to the petition are the alleged victim and Appellant (LRM), the trial military judge and Appellee (Lieutenant Colonel Kastenberg), and the accused and Real Party in Interest (Airman First Class Daniels). The Appellant’s brief provides the only real glimpse into the facts of the case:
Airman LRM, 627 LRS, McChord AFB, Washington, reported to authorities that on 13 August 2012, [the Accused], 49 CES, Holloman AFB, New Mexico, penetrated her vagina and anus with his finger and penis despite her repeated statements to him to stop, that he was hurting her, and that she was done having sex. This allegation led to two specifications of a violation of UCMJ Article 120 being preferred against him on 16 October 2012 and then being referred to trial by General Court-Martial on 28 November 2012.
This case has attracted numerous amicus briefs: The Air Force Appellate Government division wrote a brief that has been re-captioned as the Amicus Brief of the United States, and the division will receive time during oral argument. This brief supports finding that the AFCCA erred in finding no jurisdiction, and remanding the case to the CCA for consideration of the underlying issues. Additionally, the United States Air Force Trial Defense Division, Navy-Marine Corps Appellate Defense Division, the Army Appellate Defense Division, and the United States Marine Corps Defense Services Organization wrote in support of the Appellee and Real Party in Interest. Finally, the National Crime Victim Law Institute and “Protect Our Defenders,” wrote in support of the Appellant. Some of these briefs are available on CAAF’s website (links provided at the end of this post).
While the jurisdictional issue is a threshold question, I think that any practical consideration of this case first requires determining if an alleged victim has a firmly-grounded right to engage in what amounts to interpleading in a court-martial. If the answer to this question is yes (and I doubt that it is), then the rulings of the military judge (i.e., should the writ issue) and the jurisdiction of the appellate courts to review them (i.e., can the writ issue) must be addressed.
In light of the recent controversy related to sexual assaults in the military and reform of the UCMJ, a group of law professors have drafted a sort of wish list for studies and reforms in the wake of the controversy. Available here. The list of professors is long and distinguished . . . so I’ll just name a few:
CAAF decided United States v. Bennitt, No. 12-0616/AR, (opinion) (CAAFlog case page) on June 3, 2013, finding that the Appellant’s conviction for involuntary manslaughter in violation of Article 119(b)(2) is legally insufficient because the Appellant’s conduct was not an offense directly affecting the person as envisioned by Congress or as determined by precedent, reversing the ACCA, and setting aside the findings in part and the sentence.
Judge Stucky writes for the court, joined by Judges Erdmann and Ryan, and Senior Judge Cox. Chief Judge Baker dissents in a separate opinion in which he explains that he would affirm the ACCA and the conviction.
The Appellant was convicted, contrary to his pleas by a general court-martial composed of a military judge alone, of involuntary manslaughter by aiding and abetting in violation of Article 119(b)(2), UCMJ. He was acquitted of involuntary manslaughter by culpable negligence under Article 119(b)(1), UCMJ. He was also convicted, in accordance with his pleas, of four specifications each of wrongful use and distribution of a controlled substance in violation of Article 112a, UCMJ. He was sentenced to confinement for 70 months, total forfeitures, reduction to E-1, and a dishonorable discharge.
The facts of the case involved the Appellant’s use and distribution of prescription opioid painkillers to his 16 year-old girlfriend, who overdosed and died while in the Appellant’s barracks room in 2009. The girlfriend [LK], and her friend [TY], had asked the Appellant for the drugs, and he had “crushed the pill on the nightstand for them, and divided it with a card from his wallet. The girls then snorted the crushed pill using a dollar bill.” Slip op. at 4. LK was later found unresponsive, and then died, and TY was hospitalized for a drug overdose.
Article 119(b), UCMJ, provides:
(b) Any person subject to this chapter who, without an intent to kill or inflict great bodily harm, unlawfully kills a human being –
(1) by culpable negligence; or
(2) while perpetrating or attempting to perpetrate an offense, other than those named in [Article 118(4)], directly affecting the person;is guilty of involuntary manslaughter and shall be punished as a court-martial may direct.
The Appellant was charged under both theories (the culpable negligence being providing the pill and snorting device to a young person with a propensity to take drugs; the offense directly affecting the person being aiding and abetting wrongful use of drugs), but was acquitted of the culpable negligence theory and convicted of (what I consider) the more creative charge. CAAF reviewed two issues. The first questioned whether the Appellant’s distribution of drugs to the deceased was an offense directly affecting the person. The second (unreached by the majority) questioned whether the deceased’s use of drugs is an “offense” to support a conviction via aiding and abetting, as the deceased was a civilian not subject to the UCMJ’s prohibition on drug use.
Important Note: I’ve been advised that this article had some unfortunate edits made to it prior to publication that removed some key language. Specifically, it was supposed to discuss prosecutors and defense counsel, and career tracks for each, establishing career professional litigators in the judge advocate communities. The online version has been updated. This is also a longer research paper in the works discussing this proposal. I have also revised the title of this post to more accurately reflect the article.
Heritage fellow Cully Stimson wrote an interesting article a couple of days ago about the need to reform the military justice’s prosecution system, starting with the prosecutors:
To address a major part of the problem [of sexual assault in the military], Congress should fundamentally restructure a key aspect of the Judge Advocate General (JAG) corps. Congress should mandate the creation of career prosecutors within the respective services combined JAG corps. Unless and until that happens, many of the problems will persist.
He sees the steps the services as taking now, such as hiring HQEs to assist inexperienced prosecutors, the one-week prosecutor courses at the service JAG schools, and other measures, as inadequate.
Rather:
Congress should require the services to do the following:
- Recruit talented law students who want to be prosecutors;
- Require the services to establish a career track for prosecutors and keep those prosecutors in court for their entire careers as prosecutors;
- Develop prosecutor-specific training protocols throughout the 20-plus-year career of those prosecutors;
- Cease co-training with defense counsel;
- Design a viable 20-plus-year career path for JAG prosecutors that gives the best performers the opportunity to attain the rank of O-6 (colonel/captain); and
- Require that the service judge advocates send new prosecutors to larger commands first, where they will prosecute only misdemeanor cases for at least five years, including no felony cases that are referred to special courts-martial.
One of the many recurring themes in today’s Senate Armed Services Committee hearing on sexual assault in the military was the topic of retaliation and the perception that victims who report sexual assaults are then subject to retaliation for having made the report. While I wasn’t able to watch all of the hearings, I wondered why we didn’t hear more about a significant prohibition against retaliation that’s already on the books and often invoked to protect those who allege misconduct in the military: The Military Whistleblower Protection Act (10 U.S.C. § 1034).
Often considered in the limited context of communications to an inspector general, the Whistleblower Protection Act provides a broad range of protection for those who make “protected communications.” Such communications include, among many others, a communication to “any person or organization in the chain of command” (subsection b(1)(B)(iv)) regarding “a violation of law or regulation, including a law or regulation prohibiting sexual harassment or unlawful discrimination” (subsection c(2)(A)).
When a person makes such a communication:
No person may take (or threaten to take) an unfavorable personnel action, or withhold (or threaten to withhold) a favorable personnel action, as a reprisal against a member of the armed forces for making or preparing [the communication].
Subsection b(1). In other words, under the letter of the law, a servicemember can report allegations of misconduct without fear (if this isn’t the reality, that’s a leadership and enforcement problem, not a retaliation problem).
Certainly, many military sexual assault cases involve collateral misconduct by both the perpetrator and the victim (such as underage drinking or inappropriate senior-subordinate relationships). I don’t think it’s fair or rational to say that a victim faces retaliation when he or she is punished for his or her own misconduct collateral to a sexual assault (though I recognize the importance of excusing some minor collateral misconduct in order to encourage reporting of the greater evil). Retaliation is more than this accounting for collateral misconduct; it occurs when the victim is made a target simply because he or she reported the sexual assault.
Such retaliation is already prohibited by the Whistleblower Protection Act. Maybe the act is underutilized, or maybe Congress should give it more teeth, but Congress shouldn’t make significant changes to the UCMJ in order to provide a protection that already exists.
CAAF has issued its opinion in United States v. Jasper, No. 13-0013/AR, (opinion) (CAAFlog case page).
The Appellant was convicted, contrary to his pleas by a general court-martial composed of officer and enlisted members, of one specification of indecent conduct in violation of Article 120, two specifications of committing an indecent act with a child, and one specification each of knowingly possessing child pornography, knowingly receiving child pornography, persuasion and enticement of sexually explicit conduct for the purpose of producing visual depictions, and obstruction of justice, all in violation of Article 134. He was sentenced to confinement for 23 years (reduced to 18 by the convening authority), total forfeitures, reduction to E-1 and a dishonorable discharge. The Army CCA affirmed.
Judge Ryan writes for a unanimous court. The trial judge ruled that the “putative child victim” did not waive the privilege for communications she made to her pastor concerning her allegations against Appellant that he sexually abused her (including a statement that “she had made it all up . . . to get attention”), despite both the victim and her mother giving the pastor permission to disclose the statements to the trial counsel, and pastor actually disclosing the statements. CAAF finds that the determination that the privilege was not waived was erroneous.
Here, there is no question that both BK and her guardian, AJ, affirmatively consented to Pastor Ellyson’s disclosure of the statements to trial counsel. Under such circumstances, and for the reasons below, we think that it would be inappropriate to allow the claim of privilege to prevent defense counsel from using BK’s statements at trial.
Slip op. at 9 (marks omitted).
CAAF also finds that this error was constitutional in nature, as it deprived the Appellant of the opportunity for effective cross-examination, and that it was not harmless.
There is little question that in cases such as these, the credibility of the putative victim is of paramount importance, and that a statement by that person that she had made up some or all of the allegations to get attention might cause members to have a significantly different view of her credibility.
Slip op. at 14.
The ACCA is reversed and the findings and sentence are set aside, with a rehearing authorized. Further analysis to follow.
