Update: The opinion in Tevelein II now appears on the CGCCA’s website as a published decision.

Two weeks ago, in United States v. Tevelein, CGCMS 24465, No. 002-69-13 (C.G. Ct. Crim. App. Jun. 29, 2016) (en banc op. on recon.) (Tevelein II) (link to slip op.) (mirror link), the Coast Guard CCA granted a Government request for reconsideration and reversed the original decision in the case that was issued by a three-judge panel of the court way back in 2013. See United States v. Tevelein, CGCMS 24465, No. 002-69-13 (C.G. Ct. Crim. App. Sep. 6, 2013) (Tevelein I) (link to slip op.) (mirror link). The unpublished opinion on reconsideration also reverses a 2013 published decision of the court regarding the language required to properly charge a violation of Article 134 for conduct not enumerated as an offense in the Manual for Courts-Martial (a novel specification). See United States v. Hughey, 72 M.J. 809 (C.G. Ct. Crim. App. 2013) (discussed here).

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Significant military justice event this week: The Young Lawyers Division of the American Bar Association will host a free webinar on the Bergdahl case on Wednesday, July 13, 2016, from 1:00 p.m. to 2:00 p.m. (eastern time). Register here.

This week at SCOTUS: The Solicitor General received an additional extension of time to respond 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 term’s cases are available on 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, July 12, 2016, at 2 p.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.

Note: This argument was rescheduled from June 14.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on August 18, 2016.

This week at the CGCCA: The Coast Guard CCA will hear oral argument in one case this week, on Tuesday, July 12, 2016, at 10 a.m.:

United States v. Riesbeck

Issue: Whether the panel of members was properly selected.

Note: Our prior discussion of this case is available here and here.

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

In a published decision in United State v. Vidal, __ M.J. __, No. 20130892 (A. Ct. Crim. App. Jun. 21, 2016) (link to slip op.), a three-judge panel of the Army CCA orders a DuBay hearing to determine whether the appellant’s civilian appellate defense counsel has a conflict of interest.

A general court-martial composed of members with enlisted representation convicted Staff Sergeant Vidal, contrary to his pleas of not guilty, of numerous offenses in connection with a single sexual encounter in Afghanistan involving two junior soldiers, one male (SPC JA) and the other female (SPC JO). Vidal was sentenced to confinement for 15 years, reduction to E-1, total forfeitures, and a dishonorable discharge. The other male soldier, SPC JA, was a co-accused (both were accused of sexually assaulting SPC JO), and was administratively discharged in lieu of trial by court-martial after Vidal’s trial concluded.

The civilian counsel representing Vidal on appeal did not represent him at trial, but did represent SPC JA and successfully obtained the administrative discharge for SPC JA. The civilian then undertook representation of Vidal for post-trial matters and for appeal, first seeking a post-trial administrative discharge for Vidal and then arguing on appeal that Vidal received ineffective assistance of counsel at trial. The ineffective assistance claim was based upon the failure of Vidal’s trial defense counsel to seek SPC JO’s (the alleged victim’s) mental health records that were – the appeal asserts – completely exculpatory and instrumental in obtaining the administrative discharge. However, the civilian attorney had knowledge of the contents of the records (from his representation of the co-accused) but seemingly did not make full use of that knowledge during his post-trial representation of Vidal.

Accordingly, the CCA finds that:

[B]y arguing that the trial defense counsel was ineffective and lost appellant’s chance at an administrative discharge, it appeared he was also arguing his own ineffectiveness during post-trial representation of appellant. This presented us with what appeared to be a conflict of interest.

Slip op. at 5.

Significantly, the opinion “only attempts to identify potential conflicts of interest,” and the CCA observes that “nothing in this opinion should be construed as a finding of misconduct.” Slip op. at 11 n.7 (emphasis in original).

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Note: Post edited to provide a link to POD’s reply.

Back in April, in this post, we noted the publication of a report by the advocacy group Protect Our Defenders (POD) that accused the Department of Defense of misleading Congress regarding sexual assault prosecutions under the UCMJ.

The Secretary of Defense responded at the end of May and his response is available here.

The response included some harsh language about POD’s report:

[T]he central issues raised in the report and article are based on certain misunderstandings of how the military justice system works, lack of access to information contained in the full case files, or a disagreement on what “counts” as a sexual assault case.

Response at 1.

The response and its enclosure is a persuasive rebuttal of POD’s report in five ways.

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According to this CNN report, PFC Manning – who pleaded guilty to some offenses and was convicted of others in connection with the mishandling of classified material, and who received a sentence that included confinement for 35 years – was hospitalized yesterday after an apparent suicide attempt.

Readers may recall that Manning bitterly protested being placed in a suicide watch status while in pretrial confinement (some discussions here and here and here), and received 112 days of extra credit due to the conditions of the pretrial confinement.

For a good overview of the Manning case, see our #3 Military Justice Story of 2013 and our high-profile case page.

Next week, on Wednesday, July 13, 2016, from 1:00 PM – 2:00 PM EDT, the Young Lawyers Division of the American Bar Association will host a free webinar on the Bergdahl case:

Hero or Traitor?
An Overview of the Military Justice System and the Case For (and Against) the Prosecution of SGT Bowe Bergdahl

Join us on July 13 at 1 PM ET for this Free Webinar

While SGT Bowe Bergdahl’s return to the United States after nearly five years in captivity in Afghanistan was celebrated by some–including President Obama’s very public remarks from the Rose Garden upon his release–things began spiraling quickly for Bergdahl as allegations arose in the news media and through American’s most popular and talked about podcast, Serial, that shed a different light on the circumstances of his disappearance and time in captivity. Now Bergdahl finds himself standing trial before a U.S. Army court-martial. Tune in to hear military justice policy experts discuss the strengths and weaknesses of the government’s case, a primer on the military legal system, and how Bergdahl will–and is–defending himself against the government’s charges.

Register here: http://www.americanbar.org/groups/young_lawyers/events_cle/Case_of_SGT_Bowe_Bergdahl.html

I am one of the presenters.

In a published opinion in United States v. Williams, __ M.J. __, No. 20140401 (A. Ct. Crim. App. Mar. 30, 3016) (link to slip op.), a three judge panel of the Army CCA splits 2-1 to hold that the offense of indecent exposure in violation of Article 120(n) (2006) and 120c(c) (2012) does not include showing a person a photograph or digital image of one’s genitalia.

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In United States v. Buford, No. 2016-04 (A.F. Ct. Crim. App. Jun. 9, 2016) (link to slip op.), a three-judge panel of the Air Force CCA grants a Government appeal under Article 62 and reverses the suppression of the accused’s statement to criminal investigators, concluding that the military judge made incomplete findings of fact regarding the accused’s invocation of his right to a lawyer. Writing for the panel, Judge Brown vacates the suppression remands and remands the case for further proceedings. However, one member of the panel, Judge Dubriske, dissents in part, and would hold that that the military judge’s findings were clearly erroneous and that any request the accused made for an attorney was ambiguous.

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 term’s cases are available on our 2015 Term of Court page.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on July 12, 2016.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on August 25, 2016.

This week at the CGCCA: The next scheduled oral argument at the Coast Guard CCA is on July 12, 2016.

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

On Wednesday CAAF granted review of an issue involving member disclosures in an Army case:

No. 16-0555/AR. U.S. v. Jason M. Commisso. CCA 20140205. 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:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN DENYING THE DEFENSE’S POST-TRIAL MOTION FOR A MISTRIAL, THEREBY VIOLATING APPELLANT’S RIGHT TO HAVE HIS CASE DECIDED BY A PANEL OF FAIR AND IMPARTIAL MEMBERS, BECAUSE THREE PANEL MEMBERS FAILED TO DISCLOSE THAT THEY HAD PRIOR KNOWLEDGE OF THE CASE.

Briefs will be filed under Rule 25.

The Army CCA’s opinion is available here but does not mention the issue granted by CAAF.

In an opinion piece published yesterday by Bloomberg View and available here, Harvard Law professor Noah Feldman questions the constitutionality of the enumerated Article 134 offense of adultery with the demonstrably-false assertion that:

The adultery prohibition violates the fundamental right to privacy, regardless of whom it covers.

Professor Feldman’s piece was prompted by the claim of an Air Force Colonel (who is charged with rape, assault, and adultery) that the adultery offense discriminates against homosexuals because, according to this report:

the military’s definition of adultery as sex between a man and a woman hasn’t keep place with its definition of marriage, which now includes same-sex couples. That’s because the military’s adultery law requires “sexual intercourse” as an element of guilt, which the Pentagon defines as an act between a man and a woman.

“A homosexual man or woman couldn’t commit adultery as defined,” [the Colonel’s defense counsel] argued.

[Colonel] Caughey’s defense team maintains that because gay people get a pass, the charges violate the colonel’s rights under the 14th Amendment, which mandates equal protection under law.

This argument is nonsense, and has already been rejected by the Navy-Marine Corps Court of Criminal Appeals in United States v. Hackler, __ M.J. __, No. 201400414 (N-M. Ct. Crim. App. Mar. 17, 2016) (discussed here).

Professor Feldman, however, writes that “There’s a long history of the courts striking down laws that discriminate on the basis of sex because they reinforce stereotypes. Arguably, this law is just as bad. It’s possible to imagine a court rejecting it.”

No professor. It’s not. Article 134 doesn’t discriminate on the basis of sex and it’s hard to imagine a court striking it down.

As I explained in this post, the crux of an adultery prosecution is its deleterious effect on the military mission and not morality or the sanctity of marriage. Article 134 is a broad prohibition on any conduct that is prejudicial to good order and discipline or of a nature to bring discredit upon the armed forces, and adultery is merely one of the many non-exclusive ways to violate Article 134 listed in the Manual for Courts-Martial. Even if homosexuals don’t engage in sexual intercourse as contemplated by the Manual for Courts-Martial, an extra-martial homosexual relationship is equally subject to prosecution under Article 134 as a heterosexual one. And because such a prosecution hinges on prejudice to good order and discipline or service discredit – and not merely sex outside marriage (discussed here) – it does not infringe upon any right to sexual privacy, heterosexual, homosexual, or otherwise.

Professor Feldman ignores all of these factors.

Moreover, if anything heterosexual adultery has greater protection from prosecution than homosexual adultery.

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Paragraph 2-5-12 of the Military Judge’s Benchbook contains Closing Substantive Instructions of Findings to inform members how to decide whether an accused is guilty. Those instructions include:

“Proof beyond a reasonable doubt” means proof to an evidentiary certainty, although not necessarily to an absolute or mathematical certainty. The proof must be such as to exclude not every hypothesis or possibility of innocence, but every fair and rational hypothesis except that of guilt. The rule as to reasonable doubt extends to every element of the offense, although each particular fact advanced by the prosecution which does not amount to an element need not be established beyond a reasonable doubt. However, if on the whole evidence you are satisfied beyond a reasonable doubt of the truth of each and every element, then you should find the accused guilty.

(emphasis added).

Last week CAAF granted review of an Air Force case challenging a modified version of this instruction:

No. 16-0455/AF. U.S. v. Trentlee D. McClour. CCA 38704. 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:

WHETHER AFCCA ERRED WHEN IT FAILED TO GRANT RELIEF WHERE THE MILITARY JUDGE INSTRUCTED THE MEMBERS, “IF BASED ON YOUR CONSIDERATION OF THE EVIDENCE, YOU ARE FIRMLY CONVINCED THAT THE ACCUSED IS GUILTY OF ANY OFFENSE CHARGED, YOU MUST FIND HIM GUILTY,” WHERE SUCH AN INSTRUCTION IS IN VIOLATION OF UNITED STATES v. MARTIN LINEN SUPPLY CO., 430 U.S. 564, 572-73 (1977) AND THERE IS INCONSISTENT APPLICATION BETWEEN THE SERVICES OF THE INSTRUCTIONS RELATING TO WHEN MEMBERS MUST OR SHOULD CONVICT AN ACCUSED.

Briefs will be filed under Rule 25.

(emphasis added).

The AFCCA’s decision is available here.

In a published opinion issued Tuesday and captioned In re: United States v. Roberts, __ M.J. __, No. 201600119 (N.M. Ct. Crim. App. Jun. 28, 2016) (link to slip op.), the NMCCA grants a Government petition for extraordinary relief in the form of a writ of mandamus to prohibit the military judge from allowing the defense to introduce evidence of general military character in his defense of the charge of sexual assault in violation of Article 120(b) (2012).

Such evidence used to be permitted in any case, in accordance with longstanding precedent. In 2014, however, Congress mandated changes to this practice, restricting when such character evidence may be offered. The change was our #1 Military Justice Story of that year.

In Roberts, the military judge found that the 2014 change did not apply to the case because its effective date (June 17, 2015; Executive Order 13696)  was after the date of the alleged offenses, and also that application of the change to his case violates the ex post facto clause of the Constitution. The Government then sought extraordinary relief to reverse the military judge’s ruling. The NMCCA grants the relief, reversing the military judge.

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Public access to the CAAF and Air Force CCA websites has been restored.

CAAF decided the Air Force case of United States v. Harrell, __ M.J. __, No. 16-007/AF (CAAFlog case page) (link to slip op.), on Tuesday, June 28, 2016. The court finds no Fourth Amendment violation in the use of a canine leading to the discovery of marijuana and glass smoking pipes in the appellant’s vehicle, affirming the decision of the Air Force CCA and the appellant’s conditional pleas of guilty.

Chief Judge Erdmann writes for a unanimous court. Senior Judge Cox writes separately, concurring.

CAAF specified a single issue for review:

Whether evidence obtained from a police search of appellant’s vehicle on or about August 4, 2010, was obtained in violation of the Fourth Amendment and should have been suppressed.

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