The websites of CAAF and the AFCCA (which are hosted on the same servers) are currently inaccessible to the public. However, users on the military networks may still have access.

Update: Yesterday the Air Force announced that it recovered the data (link).

According to this report:

The U.S. Air Force has lost records concerning 100,000 investigations into everything from workplace disputes to fraud.

A database that hosts files from the Air Force’s inspector general and legislative liaison divisions became corrupted last month, destroying data created between 2004 and now, service officials said. Neither the Air Force nor Lockheed Martin, the defense firm that runs the database, could say why it became corrupted or whether they’ll be able to recover the information.

The same report notes, however, that the investigations involving sex issues are safe:

Air Force officials originally said information on sexual assaults might had been lost in the crash. After the article was published, they said that while sexual assault and harassment claims might have been part of the files lost, those types of investigations are backed up elsewhere. The inspector general does not investigate cases solely involving sexual assault. However, sexual assault or harassment might be tangentially part of an inspector general investigation, a service spokeswoman said.

In a Federal Register notice available here, the Joint Service Committee on Military Justice (JSC) updates the non-binding discussion sections and appendices to the Manual for Courts-Martial to address the recent executive order amending the Manual itself. The notice is another iteration of the positive trend (noted and discussed in detail here) of the JSC publishing these non-binding materials independent of an executive order.

I discussed the recent executive order in this post, where I noted that it made five changes to the Rules for Courts-Martial and the Military Rules of Evidence that are very friendly for prosecutors. The new supplementary materials offer the following commentary on these prosecution-friendly changes:

Read more »

CAAF granted review and ordered briefing in two new cases last week:

No. 16-0423/AR. U.S. v. Joseph R. Haverty. CCA 20130559. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue specified by the Court

WHETHER THE MILITARY JUDGE COMMITTED PLAIN ERROR WHEN HE FAILED TO INSTRUCT THE PANEL ON THE MENS REA REQUIRED FOR AN ARTICLE 92, UCMJ, VIOLATION OF ARMY REGULATION 600-20, WHICH PROHIBITS REQUIRING THE CONSUMPTION OF EXCESSIVE AMOUNTS OF ALCOHOL AS AN INITIATION RITE OF PASSAGE.

Briefs will be filed under Rule 25.

The Army CCA’s opinion in Haverty is available here. The granted issue (specified by the court) is similar to the issue in United States v. Gifford, 75 M.J. 140 (C.A.A.F. Mar. 8, 2016) (CAAFlog case page).

No. 16-0424/MC. U.S. v. Mark J. Rosario. CCA 201500251. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE LOWER COURT ERRED IN CONDUCTING ITS ARTICLE 66(c), UCMJ, REVIEW BY FINDING AS FACT ALLEGATIONS THAT SUPPORTED CHARGES OF WHICH APPELLANT WAS ACQUITTED TO AFFIRM THE FINDINGS AND SENTENCE.

Briefs will be filed under Rule 25.

The NMCCA’s opinion in Rosario is available here. The case involves a conviction of sexual harassment but acquittals of related sexual contact and assault offenses. Affirming the harassment conviction, the CCA noted that “when the same evidence is offered in support of two separately charged offenses, as the physical encounters were here, ‘an acquittal on one [may] not be pleaded as res judicata of the other.'” Slip op. at 4 (quoting Dunn v. United States, 284 U.S. 390, 393 (1932)) (marks in original).

This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court, where I’m tracking two cases:

This week at CAAF: CAAF has completed its oral argument calendar for the term. Details about this terms cases are available at our 2015 Term of Court page.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Tuesday, June 14, 2016, at 10 a.m.:

United States v. Bonilla, No. 20131084

Issues:
I. Whether the military judge erred by allowing a damaging hearsay statement into evidence after he already ruled the specific statement inadmissible.
II. Whether the military judge abused his discretion in prohibiting the defense from completing their closing argument.

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 next scheduled oral argument at the Navy-Marine Corps CCA is on June 21, 2016.

Here (subscription req’d) is a link to Marcia Coyle’s piece in the National Law Journal Supreme Court Brief discussing the Akbar cert. petition and amicus brief from NIMJ, featuring quotes from NIMJ’s Prof. Stephen Vladeck.  From the portion visible outside the firewall:

In the past eight years, the Obama administration has been no stranger to charges it has violated separation of powers or exceeded its statutory authority. But a new charge comes from an unusual source—the military justice system—in a U.S. Supreme Court petition that has the potential to dismantle the military’s capital punishment scheme.

Our prior coverage of the cert. petition is here and here.  H/t JB/SV

CAAF decided the Army case of United States v. Evans, __ M.J. __, No. 16-0019/AR (CAAFlog case page) (link to slip op.), on Monday, June 6, 2016. Resolving an inconsistency in its own precedent regarding the appropriate test for whether a violation of the Article 31(b) statutory right to remain silent is harmless in a particular case, CAAF explains that when only the statutory provision (and not also the Fifth Amendment right against self-incrimination) is violated then the violation is tested using the four-part test set forth in United States v. Kerr, 51 M.J. 401, 405 (C.A.A.F. 1999). Finding that only Article 31(b) was violated in this case, CAAF affirms the decision of the Army CCA.

Judge Ohlson writes for a unanimous court. Notably, this is the first opinion of the court to include the recently-confirmed Judge Sparks.

Read more »

This week at SCOTUS: The Court granted the Solicitor General an extension of time to file a response to the cert. petition in Akbar. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking two cases:

This week at CAAF: CAAF has completed its oral argument calendar for the term. Details about this terms cases are available at our 2015 Term of Court page.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on June 14, 2016.

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 next scheduled oral argument at the Navy-Marine Corps CCA is on June 21, 2016.

Article 120(b) and 120(d) prohibit committing a sexual act (120(b)) or a sexual contact (120(d)) upon a person who is:

asleep, unconscious, or otherwise unaware that the sexual [act/contact] is occurring

In United States v. Sager, No. 201400356 (N-M. Ct. Crim. App. Dec. 29, 2015) (link to slip op.), the appellant was convicted of violating Article 120(d) by touching another man’s penis with his hand while the other man was otherwise unaware that the contact was occurring. Specifically, while the appellant was charged with violating the statute in all three possible ways (that the other man was asleep, unconscious, or otherwise unaware when the appellant touched him; an erroneous disjunctive pleading), the members returned a finding of guilty to only a touching when the other man was otherwise unaware. That prompted the appellant to assert on appeal that the specification was unconstitutionally vague because it failed to identify how the other man was otherwise unaware, and that the finding is factually and legally insufficient because the evidence indicated that the other man was either asleep or unconscious (he testified that he awoke from a drunken slumber to the sensation of the appellant touching him).

The Navy-Marine Corps CCA rejected the appellant’s assertions by concluding that:

asleep or unconscious are examples of how an individual may be “otherwise unaware” and are not alternate theories of criminal liability.

Slip op. at 7.

On Tuesday CAAF granted review of two issues that challenge the CCA’s conclusion:

No. 16-0418/NA. U.S. v. Jeffrey D. Sager. CCA 201400356. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

I. IN AFFIRMING THE ABUSIVE SEXUAL CONTACT CONVICTION, THE LOWER COURT RELIED ON FACTS OF WHICH THE MEMBERS ACQUITTED APPELLANT. WAS THIS ERROR?

II. ARTICLE 120(d), UCMJ, PROHIBITS SEXUAL CONTACT ON ANOTHER PERSON WHEN THAT PERSON IS “ASLEEP, UNCONSCIOUS, OR OTHERWISE UNAWARE.” DESPITE THESE SPECIFIC STATUTORY TERMS, THE LOWER COURT HELD THAT “ASLEEP” AND “UNCONSCIOUS” DO NOT ESTABLISH THEORIES OF CRIMINAL LIABILITY, BUT ONLY THE PHRASE “OTHERWISE UNAWARE” ESTABLISHES CRIMINAL LIABILITY. DID THE LOWER COURT ERR IN ITS INTERPRETATION OF ARTICLE 120(d), UCMJ?

Briefs will be filed under Rule 25.

The Supreme Court received two additional briefs in support of the petition for certiorari in Akbar v. United States, No. 15-1257 (Akbar CAAFlog case page).  The first from the National Association of Criminal Defense Lawyers (NACDL), here, supports the defense’s substantive argument in their petition asking for the SCOTUS to reverse its prior decision in Loving v. United States, 517 U.S. 748 (1996), which found the military’s capital sentencing scheme to be constitutional.  See prior coverage here.  The second from the Air Force and Navy-Marine Corps appellate defense shops, here, addresses the related issue, which is not directly addressed in the petition for certiorari, that trial defense counsel for the accused was not qualified, in accordance with prevailing standards, to handle a capital case.

In my article Consent and Mistake of Fact as to Consent: Defenses to Adult Sexual Offenses under the Uniform Code of Military Justice, 2014 Emerging Issues 7277 (2014) (discussed here), I analyzed the difference between a defense and an affirmative defense:

There is a significant difference between a defense and an affirmative defense (also called a “special defense” in military practice). A defense denies commission of an act that constitutes an element of the charged offense. An affirmative defense does not “deny[] that the accused committed the objective acts constituting the offense charged [but instead] denies, wholly or partially, criminal responsibility for those acts.” R.C.M. 916(a). Put differently, a defense disproves an element while an affirmative defense addresses something that isn’t an element but nevertheless avoids criminal responsibility. For example, it is a defense that an accused did not kill a victim, while it is an affirmative defense that even though an accused did kill a victim, the killing was done in self-defense.

In a recent decision in United States v. Teague, __ M.J. __, No. 20140394 (A. Ct. Crim. App. Mar. 15, 2016) (link to slip op.), the Army CCA notes this difference in rejecting the appellant’s appellate claim that the Government failed to disprove the affirmative defense of mistake of fact as to consent to his conviction for sexual assault of an incapacitated person in violation of Article 120(b) (2012). However, the statute requires that the prosecution prove, as an element of the offense, that the incapacity of the victim be “known or reasonably should be known by the [accused].” Article 120(b)(3)(A). Accordingly:

If the government proves that an accused had actual knowledge that a victim was incapable of consenting, then, by definition, such an accused could not simultaneously honestly have believed that the victim consented. Similarly, if the government proves that an accused should have reasonably known that a victim was incapable of consenting, the government has also proven any belief of the accused that the victim consented was unreasonable.

Slip op. at 3. Put differently:

[A] mistake of fact defense is “baked in” to the elements of the offenses themselves. If, by way of example, the offense requires only that an accused commit a sexual act with someone who was incapable of consenting, it would be an affirmative defense that the accused honestly and reasonably believed the person was capable of consenting. By requiring the government prove that appellant knew, or reasonably should have known that AC was incapable of consenting, the government was required to disprove any defense of mistake of fact appellant may have had with regards to AC’s ability to consent.

Slip op. at 4. The CCA finds the evidence sufficient to sustain the appellant’s conviction.

This week at SCOTUS: The Solicitor General filed a brief opposing certiorari in Sullivan. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking two cases:

This week at CAAF: CAAF has completed its oral argument calendar for the term. Details about this terms cases are available at our 2015 Term of Court page.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on June 14, 2016.

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.

With Executive Order 13,730 of May 20, 2016 (available here), President Obama amended the Manual for Courts-Martial.

The Executive Order makes no significant changes to the JSC’s final proposed amendments, previously discussed here and here.

The amendments do not include the still-missing Part IV language for the newest version of Article 120 (enacted in the FY12 NDAA, and effective on 28 June 2012) (discussed here). Such materials would include model specifications (like the ones available here), definitions, explanations, and other valuable commentary. I’ve previously noted (here, for example) the deeply troubling failure of President Obama to fulfill his duty to update the MCM to address the 2012 changes.

The amendments also do not include an update to Mil. R. Evid. 412 (the military rape shield rule) to incorporate CAAF’s opinions in United States v. Ellerbrock, 70 M.J. 314 (C.A.A.F. 2011) and United States v. Gaddis, 70 M.J. 248 (C.A.A.F. 2011), that found constitutional deficiencies with the balancing test in the rule.

However, the amendments do make a number of significant changes that are very friendly for prosecutors. They include:

Read more »

Coverage abounds of the recently filed appeal of PFC manning at the Army Court of Criminal Appeals, here (AP via Army Times), here (ABC News), here (AP via Stars&Stripes), and here (Wired)–yes, some of that is naval gazing.

Here is a link to the brief, all 209 pages, which features what it presents (at 34-44) as a seeming circuit split on application of  “exceeds authorized access” in the one specification of violating 18 U.S.C. § 1030(a)(1) (the Computer Fraud and Abuse Act (CFAA)).  The first argument doesn’t seem like a strong attack on the pre-trial punishment violations that Judge Lind remedied by awarding 112 days of additional pre-trial confinement credit.  And the RCM 1001(b)(4) argument is interesting in alleging that the parade of testimony concerning the potential impact of the leaks made by PFC Manning was not “directly relating to or resulting from the offenses”–though the argument focuses on “resulting from” and fails to discuss what the broader phrase “relating to” means.

It is difficult for me to comment on the legal and factual sufficiency arguments, but feel free to speculate if you have more information about the evidence than I do (or even if you don’t, which will likely happen).

This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court, where I’m tracking two cases:

This week at CAAF: CAAF has completed its oral argument calendar for the term. Details about this terms cases are available at our 2015 Term of Court page.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on June 14, 2016.

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.