CAAFlog » Court-Martial News

That’s the title of this report in the San Diego Union Tribune about the fallout from the public, mass-apprehension of 16 Marines accused of human smuggling that was recently ruled to be unlawful (noted here). As a result of the ruling, “the Marines’ cases will be dealt with administratively, outside the military court system, according to a 1st Marine Division statement.”

The apprehension occurred in July and was big news at the time. Reuters, for example, reported that it “stemmed from a separate investigation of two other Marines arrested earlier this month on human trafficking charges filed by federal prosecutors in San Diego.” The apprehension was captured on video (available here).

The Union Tribune previously reported that a military law enforcement agent testified during an Article 32 preliminary hearing that the Marines apprehended en masse were not accused of actually transporting migrants across the border, but rather were allegedly “part of a conspiracy to transport the immigrants across the county.”

Richard Spencer was – until five days ago – the 76th Secretary of the Navy. He was nominated for the position by President Trump on D-Day, 2017, and quickly confirmed. He was fired this past Sunday by Secretary of Defense Mark Esper – another rapidly-confirmed appointee of President Trump – for loss of trust and confidence in connection with the Gallagher case.

More specifically, as this DoD press statement explains:

Secretary of Defense Mark T. Esper has asked for the resignation of Secretary of the Navy Richard Spencer after losing trust and confidence in him regarding his lack of candor over conversations with the White House involving the handling of Navy SEAL Eddie Gallagher.

After Secretary Esper and Chairman Milley spoke with the Commander in Chief on Friday regarding the case of Gallagher, Secretary Esper learned that Secretary Spencer had previously and privately proposed to the White House – contrary to Spencer’s public position – to restore Gallagher’s rank and allow him to retire with his Trident pin. When recently asked by Secretary Esper, Secretary Spencer confirmed that despite multiple conversations on the Gallagher matter, Secretary Esper was never informed by Secretary Spencer of his private proposal.

The Gallagher case is an unprecedented, unmitigated, and ongoing disaster for the Navy. That, however, doesn’t seem to matter to Spencer.

In a piece published by the Washington Post (alternative link), Spencer disputes the official report of a private deal with the White House and claims, instead, that:

I tried to find a way that would prevent the president from further involvement while trying all avenues to get Gallagher’s file in front of a peer-review board. Why? The Naval Special Warfare community owns the Trident pin, not the secretary of the Navy, not the defense secretary, not even the president. If the review board concluded that Gallagher deserved to keep it, so be it.

. . .

[T]he Navy established a review board to decide the status of Gallagher’s Trident pin. According to long-standing procedure, a group of four senior enlisted SEALs would rule on the question. This was critical: it would be Gallagher’s peers managing their own community. The senior enlisted ranks in our services are the foundation of good order and discipline.

Lack of candor indeed.

The Navy Times has published this strongly-worded opinion piece by Sean Gallagher, the brother of Navy Special Operations Chief Edward Gallagher. It begins:

In this partisan environment, people were quick to judge President Donald J. Trump’s reinstatement of anchors to my brother, Special Warfare Operator Chief Edward “Eddie” Gallagher.

Out of the woodwork came former military attorneys, indignant Pentagon officials and your typical Washington establishment types.

Their views were mainly the same. The president’s actions were a moral hazard! What message will it send our troops? What of good order and discipline?

I have one question for these people: Where in the hell were you the past year and a half?

Sean Gallagher then excoriates the Naval Criminal Investigative Service for it’s mishandling of the case, Navy prosecutors for their prosecutorial misconduct (including spying on the defense), and Navy leadership for its lack thereof.

The piece includes a link to this 16-page complaint filed last week with the DoD Inspector General that makes seven specific complaints of “severe misconduct committed by the investigators, prosecutors, and the command before, during, and after the trial.”

Sean Gallagher concludes:

And don’t think for a second the bureaucracy ever admits it got everything wrong. Quite the opposite.

Instead of an apology to our family for the home raid, months of unjust imprisonment and enormous legal fees, the Navy actually rewarded the prosecutors who lost the case.

You heard me right. A team that spied, cheated, slandered and then lost a publicly humiliating case, received Navy and Marine Corps Achievement Medals.

Who, again, is ruining good order and discipline? You dare chide the commander in chief’s attempt to clean up this mess?

To any service member reading this: If it can happen to us, it can happen to you.

The message your brass and bureaucracy is sending you is clear. You are disposable. When it comes to their careers or their political motives, they’ll send you to war and then railroad you, drag you through the mud, and sing songs of sanctimony while you and your family hang.

In the wake of President Trump’s recent grants of clemency in military cases, pardoned Army First Lieutenant Clint Lorance appeared on Fox & Friends this morning. Video and a report are available on the Fox News website, here. Among other things, Lorance reacted to yestetrday’s tweet from former Vice President Joe Biden that said that the President’s pardon decision “betrays the rule of law, the values that make our country exceptional & the men and women who wear the uniform honorably.” Shortly before Biden’s tweet, the President tweeted that he would not have granted clemency to Private Manning, whose 35-year sentence was commuted by President Obama.

In other news, CNN reports here on the Supreme Court’s grant in Briggs, with the observation that “this will be the first time the justices consider a sexual assault issue in the #MeToo era, wading into a years-long controversy over how the military addresses sexual misconduct in its ranks as service branches continue to face scrutiny over their lack of progress countering the problem.”

Additionally, the San Diego Union Tribune reports here that a military judge ruled that the public, mass apprehension of 16 Marines accused of human smuggling was unlawful command influence. The Union Tribune previously reported on a video of the apprehension, observing that:

On the morning of July 25, as 800 Marines stood in formation at the Camp San Mateo area of Marine Corps Base Camp Pendleton, 24 Marines’ names were called.

Fifteen were ordered to stand in a line in front of the battalion “to be recognized,” according to court filings in the case. The battalion sergeant major stood nearby, carrying a red folder that usually is associated with awards.

But these men weren’t awarded. The regiment sergeant major, Sgt. Major Matthew A. Dorsey pointed to the Marines in front and said, “NCIS, arrest these Marines.”

Three video clips of the incident are available here and also here. The Union Tribune reports that the military judge gave the prosecution “until next week to find a way to remedy what he said was actual and apparent unlawful command influence, or it could be devastating to their case.”

Finally, the Fayetteville Observer reports here on an interview with retired Army Lieutenant Colonel Kris Poppe, who was Major Hasan’s detailed military defense counsel.

In a press release available here, the White House announces:

Today, President Donald J. Trump signed an Executive Grant of Clemency (Full Pardon) for Army First Lieutenant Clint Lorance, an Executive Grant of Clemency (Full Pardon) for Army Major Mathew Golsteyn, and an order directing the promotion of Special Warfare Operator First Class Edward R. Gallagher to the grade of E-7, the rank he held before he was tried and found not guilty of nearly all of the charges against him.

. . .

The United States military justice system helps ensure good order and discipline for our millions of uniformed military members and holds to account those who violate the Uniform Code of Military Justice. Due in part to this system, we have the most disciplined, most effective, most respected, and most feared fighting force in the world.

The President, as Commander-in-Chief, is ultimately responsible for ensuring that the law is enforced and when appropriate, that mercy is granted. For more than two hundred years, presidents have used their authority to offer second chances to deserving individuals, including those in uniform who have served our country. These actions are in keeping with this long history. As the President has stated, “when our soldiers have to fight for our country, I want to give them the confidence to fight.”

Commutations and clemency were the #9 Military Justice Story of 2017 based on President Obama’s commutation of the death sentence for Private Loving and the sentence of confinement for 35-years for Private Manning. Both actions were taken in the last days of President Obama’s second term.

President Trump pardoned Army LT Behenna earlier this year (discussed here).

Last year we discussed presidential pardons for convicted wartime murderers, in this Scholarship Saturday post.

In 2009, then-Private First Class Bergdahl walked away from his combat outpost in Patika Province, Afghanistan. He was captured by the Taliban and held in captivity for nearly five years. He was recovered in a May 2014 trade for five Guantanamo Bay detainees. Ten months later he was charged with desertion with the intent to shirk important service and avoid hazardous duty in violation of Article 85(a)(2), and with misbehavior before the enemy in violation of Article 99.

Bergdahl eventually pleaded guilty to both offenses without a pretrial agreement. In sentencing his defense counsel specifically requested that the military judge sentence him to a dishonorable discharge, and Bergdahl made it clear that he personally believed that a dishonorable discharge was the appropriate punishment. The military judge gave him that and little more, adjudging a sentence of reduction to E-1, forfeiture of $1,000 pay per month for 10 months, and a dishonorable discharge. The convening authority approved the sentence after Bergdahl elected to not request clemency.

Nevertheless, having pleaded guilty, requested a dishonorable discharge, made clear that a dishonorable discharge was appropriate, and not requested clemency, on appeal Bergdahl claimed that endemic unlawful command influence (UCI) denied him a fair trial, fair post-trial processing, or the appearance thereof, and sought dismissal of the charges. The Army CCA rejected the claim and affirmed the findings and sentence in a published decision discussed here. Bergdahl then petitioned CAAF for review (discussed here).

Yesterday, CAAF granted that review:

No. 19-0406/AR. U.S. v. Robert B. Bergdahl. CCA 20170582. 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 granted on the following issue:

WHETHER THE CHARGES AND SPECIFICATIONS SHOULD BE DISMISSED WITH PREJUDICE OR OTHER MEANINGFUL RELIEF GRANTED BECAUSE OF APPARENT UNLAWFUL COMMAND INFLUENCE.

Briefs will be filed under Rule 25.

Last term, in Hasan v. U.S. Army Court of Criminal Appeals, and United States, No. 19-0054/AR (CAAFlog case page), Major Hasan – the Fort Hood shooter and one of four current residents of the military’s death row – asked CAAF to grant him a writ of mandamus ordering all of the judges of the Army CCA to recuse themselves from his case.

The asserted basis for the mass recusal was that the Deputy Judge Advocate General of the Army (DJAG), Major General Risch, who evaluates the Chief Judge of the Army CCA, had previous involvement in the case as the Fort Hood SJA. CAAF heard oral argument on the petition on March 27, 2019, and then summarily denied it six days later, on April 2, ruling:

In this case, Petitioner has failed to demonstrate that he cannot obtain relief through alternative means. He may still make an administrative request to remedy the alleged source of bias, and of course, he is entitled to raise this issue in the ordinary course of appellate review. Further, Petitioner has failed to demonstrate a clear and indisputable right to the writ as the harm he asserts is entirely speculative at this stage of the proceedings. Therefore, we decline to exercise our authority under the [All Writs Act].

Two weeks ago Hasan filed two new writ petitions, and yesterday CAAF granted one in part, disqualifying one ACCA judge from the case:

No. 20-0009/AR. Nidal M. Hasan v. ACCA. CCA 20130781. On consideration of the petition for extraordinary relief (recusal of judges), it is ordered that the petition is granted as to Judge Walker and denied as to Judge Brookhart without prejudice to Petitioner’s right to raise the matters asserted in the normal course of appellate review.

No. 20-0010/AR. Nidal M. Hasan v. ACCA. CCA 20130781. On consideration of the petition for extraordinary relief (appointment of a chief judge), it is ordered that the petition is denied without prejudice to Petitioner’s right to raise the matters asserted in the normal course of appellate review.

Here’s a link to a Washington Times story about a military judge’s ruling in an Air Force general court-martial, dismissing sexual assault charges with prejudice because the convening authority (a 2-star) “directed the trial counsel not to enforce their subpoenas, [resulting in] the government abdicat[ing] its obligations to the justice system.” The military judge’s 13-page ruling is available here. Reportedly, the prosecution will not appeal the ruling.

Additionally, here’s a link to a story about the arrest of Coast Guard Seaman Ethan Tucker for the murder a fellow Coast Guardsman in Alaska.

In other news, the Solicitor General filed a reply brief in support of the Government’s petition for certiorari in Briggs. The brief is available here.

Finally, CAAF’s 2019 orientation for new attorneys (an annual event) will be on Tuesday, September 24, 2019 at 9:30 a.m. Additional details available here.

In 2009, then-Private First Class Bergdahl walked away from his combat outpost in Patika Province, Afghanistan. He was captured by the Taliban and held in captivity for nearly five years. He was recovered in a May 2014 trade for five Guantanamo Bay detainees. Ten months after his recovery, in March of 2015, Bergdahl (then a Sergeant) was charged with desertion with the intent to shirk important service and avoid hazardous duty in violation of Article 85(a)(2), and with misbehavior before the enemy in violation of Article 99.

Bergdahl eventually pleaded guilty to both offenses without a pretrial agreement. Then, in sentencing, the defense specifically requested that the military judge sentence Bergdahl to a dishonorable discharge, and Bergdahl made it clear that he believed that a dishonorable discharge was the appropriate punishment. The military judge sentenced Bergdahl to reduction to E-1, forfeiture of $1,000 pay per month for 10 months, and a dishonorable discharge. The Army CCA affirmed the findings and sentence last month, in a published decision discussed here.

On Monday CAAF docketed a petition for grant of review in Bergdahl’s case. The supplement to the petition is available here.

The supplement raises four issues:

I. WHETHER THE CHARGES AND SPECIFICATIONS SHOULD BE DISMISSED WITH PREJUDICE OR OTHER MEANINGFUL RELIEF GRANTED BECAUSE OF APPARENT UNLAWFUL COMMAND INFLUENCE.

II. WHETHER THE CHARGES WERE UNREASONABLY MULTIPLIED.

III. WHETHER THE MILITARY JUDGE MISAPPLIED THE SPECIFIC INTENT ELEMENT OF SHORT DESERTION.

IV. WHETHER THE MISBEHAVIOR BEFORE THE ENEMY SPECIFICATION STATES AN OFFENSE.

One particularly interesting part of the supplement is this passage, in which Bergdahl’s decision to abandon his post and assigned duties is characterized as bravery:

Charging both desertion and misbehavior was also an exaggeration. Short desertion involves a conscious purpose to shirk or avoid one’s duty. SGT Bergdahl’s absence from guard duty was a collateral consequence of his conscious purpose to travel to another base within the command. Misbehavior charges quintessentially involve cowardice, whereas this case involves a form of (misplaced) bravery.

Supp. at 22 (emphasis omitted).

Last week I noted that the Chief of Naval Operations ordered a review of the leadership and performance of the Navy JAG Corps.

USNI News provides details here, including a copy of the CNO’s memo ordering the review (reproduced after the jump).

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In the wake of the acquittal of Navy Special Operations Chief Edward Gallagher of the most serious charges against him (noted here), the Secretary of the Navy has revoked 10 awards given to the prosecution team in connection with the case. Reuters reports here that:

The move coincided with tweets from President Donald Trump repeating his support for Special Operations Chief Edward Gallagher and directing Spencer to rescind awards that were “ridiculously given” to prosecutors who, according to Trump, “lost the case” against Gallagher. . . .

A total of 10 military awards – seven Navy Achievement Medals and three letters of commendation – recently given to military prosecutors for their work on the Gallagher case were revoked, Navy officials told Reuters. Those officials said they did not know if Spencer acted on Trump’s orders or took action before the president’s tweets.

In perhaps-related other news, the Navy Times reports here that yesterday the Chief of Naval Operations took control of companion cases and ordered a review of the leadership and performance of the Navy JAG Corps:

“Additionally, as part of an ongoing assessment of Judge Advocate General’s (JAG) Corps performance, Richardson directed Vice Chief of Naval Operations Adm. Bob Burke to conduct a Comprehensive Review into the leadership and performance of the JAG Corps. This review is intended to ensure the JAG Corps provides exemplary support to the Navy and the nation,” the statement concluded.

The Marshall Project reports here on the military special victim counsel programs. The piece focuses on the story of former Army Lieutenant Angela Bapp, who testified before House and Senate committees earlier this year (video available here).

Finally, Stars and Stripes reports here on the Solicitor General’s petition for certiorari in Briggs (discussed here). The final two paragraphs in the report are:

Don Christensen, president of Protect Our Defenders, an advocacy group for military sexual assault survivors, said he hoped the Supreme Court would hear the case and reverse the military court.

“That would be good for the CAAF. It would be good for them to be slapped down a little bit,” he said. “This was a devastatingly bad opinion.”

In a published decision issued yesterday and available here, a three-judge panel of the Army CCA affirms the findings and sentence in the Bergdahl case.

In 2009, then-Private First Class Bergdahl walked away from his combat outpost in Patika Province, Afghanistan, and was captured by the Taliban and held in captivity for nearly five years. He was recovered in a May 2014 trade for five Guantanamo Bay detainees. Ten months later, in March of 2015, Bergdahl (then a Sergeant) was charged with desertion with the intent to shirk important service and avoid hazardous duty in violation of Article 85(a)(2), and misbehavior before the enemy in violation of Article 99.

Bergdahl’s case made our top ten list two years in a row, as the #8 Military Justice Story of 2015 and 2016, and the processing of the case through the military justice system was bizarre: A protective order prohibited Bergdahl’s defense team from releasing information to the press before trial, Bergdahl confessed to desertion, his recorded conversations with filmmaker Mark Boal were the nucleus for season 2 of NPR’s Serial podcast (and Boal sought to avoid a subpoena), Bergdahl’s defense team went 0-7 at CAAF, and motions to dismiss were filed over and over and over again.

Eventually, however, Sergeant Bergdahl pleaded guilty to both offenses without a pretrial agreement. Then, in sentencing, the defense specifically requested that the military judge sentence Bergdahl to a dishonorable discharge, and the CCA’s opinion noted that Bergdahl “made clear to the court that he believed the appropriate punishment was a dishonorable discharge.” Slip op. at 6. The military judge sentenced Bergdahl to reduction to E-1, forfeiture of $1,000 pay per month for 10 months, and a dishonorable discharge.

During that time, Bergdahl’s case captured the attention of the late Senator John McCain, and of then-candidate and later-President Donald Trump. Specifically, Senator McCain threatened hearings if Bergdahl received no punishment, and President Trump made numerous statements and tweets about the case, both before and after his election, including calling Bergdahl a traitor and calling the adjudged sentence “a complete and total disgrace to our Country and to our Military.” Slip op. at 6 (punctuation in original).

After Bergdahl was sentenced, the defense matters to the convening authority that included a post-sentencing tweet from President Trump but requested only that the case be sent to a different convening authority for possible clemency. The defense did not request sentence reduction. The convening authority did not transfer the case, and approved the findings and sentence as adjudged.

Nevertheless, having pleaded guilty, requested a dishonorable discharge, made clear that a dishonorable discharge was appropriate, and not made any request for clemency, on appeal Bergdahl “contend[ed that] unlawful command influence [UCI] was so endemic to [his] trial and the post-trial processing that [he] was denied a fair trial, or fair post-trial processing, or the appearance thereof.” Slip op. at 1.

The CCA rejected the claim in yesterday’s decision, with a majority of the panel reaching the unsurprising conclusion that, even considering the cumulative impact of all of the potential UCI:

the cumulative effect could not reasonably be perceived by a disinterested member of the public as improper command influence or otherwise indicative of an unfair proceeding.

Slip op at 18-19.

One judge dissents, however, writing that:

The active duty Lieutenant Colonel Judge Advocate Preliminary Hearing Officer, who presided over appellant’s extensive Article 32 proceeding, recommended referral of appellant’s case to a “straight special” court-martial not empowered to adjudge any discharge, and further recommended no jail time. Major General Dahl, who led a team of over twenty investigators and lawyers during the pretrial AR 15-6 investigation into appellant’s case likewise indicated that jail time would be “inappropriate.” In light of these recommendations from senior leaders who looked closely at appellant’s case, the military judge’s ultimate sentence was hardly a windfall, and it would have been conceivable that the convening authority could have provided additional clemency. Contrary to the majority’s holding, I find that UCI infected that critical post-trial process.

Slip op. at 28-29. Accordingly, and despite the fact that Bergdahl specifically requested a dishonorable discharge, agreed that a dishonorable discharge is appropriate, and did not request mitigation of the dishonorable discharge from the convening authority, the dissenting judge believes that:

Setting aside appellant’s dishonorable discharge would bring his current sentence into line with these two recommendations, and thus purge the taint of post-trial UCI that emanated from the President’s day-of-sentencing tweet.

Slip op. at 29.

I’m far behind on my coverage of the opinions from the CCAs and of court-martial news, but two big developments this week warrant mention.

First, the court-martial of Navy Special Operations Chief Edward Gallagher – that I previously mentioned here in connection with some questionable conduct by the prosecutor (leading to the prosecutor’s removal from the case) – ended this week, with Gallagher acquitted of everything except for one specification of violation of Article 134 for wrongfully posing for an unofficial picture with a human casualty. According to reports from Fox News and NPR, Gallagher was sentenced to reduction to E-6 (from E-7; in line with the prosecution’s request) and the maximum authorized confinement for four months and forfeiture of pay for four months. Due to pretrial confinement credit, however, Gallagher will not serve any additional confinement.

Second, a three-judge panel of the Navy-Marine Corps CCA issued a massive, 57-page, 21,000+ word opinion in United States v. Wilson, No. 201800022 (N.M. Ct. Crim. App. Jul. 1, 2019) (link to slip op.), in which it finds a conviction of sexual abuse of a child to be factually insufficient. Writing for a unanimous panel, Senior Judge Tang explains:

Carefully evaluating all of BP’s [the child] testimony and statements admitted at trial, we find that BP’s statements were fatally inconsistent and wholly irreconcilable. Based on the evidence, we cannot discern how BP contends the appellant touched her, when he did so, or how many times she contends the abuse occurred. Faced with multiple descriptions of possible contacts—only some of which are consistent with guilt—we cannot find guilt beyond a reasonable doubt based solely on BP’s statements.

We next look to the other evidence admitted at trial for corroboration. We do not find evidence sufficient to overcome the infirmities in BP’s statements. There were no witnesses, physical evidence, or admissions of guilt by the appellant.

We next consider the testimony of several preeminent expert witnesses in the field of child psychology, maltreatment, and forensic interviewing. Most were presented by the government. The experts’ testimony assists us in understanding the limitations in children’s memories and children’s susceptibility to suggestion. But the expert testimony does nothing to resolve our genuine misgivings with the evidence. Rather, the testimony of the government’s expert witnesses only further diminishes the reliability of BP’s forensic inter-view and trial testimony.

Slip op. at 29 (emphasis in original). The analysis concludes:

We do not expect perfect consistency or flawless oratory from a six-year-old child. However, the government’s own experts indicated that, at least in July 2016, BP was capable of providing a narrative clearly describing her abuse but did not. And the government’s own experts found infirmities in the interview technique and a lack of clarity in BP’s statements. The expert testimony cannot reasonably explain the inconsistencies between all of BP’s statements.

. . .

We have carefully reviewed the government’s arguments on the evidence as they view it. We do not find that the proof is “such as to exclude . . . every fair and rational hypothesis except that of guilt.” Loving, 41 M.J. at 281.

Slip op. at 52-53.

CAAF decided the Marine Corps case of United States v. Hutchins, 78 M.J. 437, No. 18-0234/MC (CAAFlog case page) (link to slip op.), on Wednesday, May 29, 2019. In its third review of this long-running prosecution, CAAF finds that no issue of ultimate fact was determined by Hutchins’ acquittal of certain offenses in his first trial and also that the prosecution could prove all the elements of the offenses at his second trial without invoking the elements of the acquitted offenses. Accordingly, the doctrine of issue preclusion – as embodied by the Double Jeopardy Clause of the Fifth Amendment and codified in Rule for Courts-Martial 905(g) – does not apply, and CAAF affirms the decision of the NMCCA that affirmed the findings and sentence.

Judge Ohlson writes for a unanimous court.

Sergeant (E-5) Hutchins was tried twice by general court-martial for his participation in a 2006 kidnap-murder conspiracy in Iraq that is colloquially known as the Hamdania incident. His first court-martial was in 2007 and resulted in convictions of conspiracy, false official statement, unpremeditated murder, and larceny, but acquittals of other related offenses. Hutchins was sentenced to reduction to E-1, a reprimand, confinement for 15 years, and a dishonorable discharge, however the convening authority disapproved the reprimand and all confinement in excess of 11 years.

A roller-coaster of appellate litigation followed. The Navy-Marine Corps CCA initially reversed Hutchins’ convictions in 2010 (decision analyzed here), but CAAF reversed the CCA’s decision in 2011 (noted here). On remand in 2012, the NMCCA affirmed the findings and the sentence (noted here). But CAAF reversed that decision too, and then it set aside Hutchins’ convictions and authorized a rehearing in United States v. Hutchins, 72 M.J. 294 (C.A.A.F. 2013) (CAAFlog case page).

The rehearing occurred in 2015, and Hutchins was again convicted of conspiracy, murder, and larceny. Those convictions, however, implicated conduct that that was also implicated by the offenses that Hutchins’ was acquitted of at the first trial. Specifically, the prosecution was allowed to introduce evidence implicating the acquitted offenses in order to prove that Hutchins had a plan to commit the charged offenses (that he had been convicted of committing at the first trial). Hutchins claimed that violated the constitutional prohibition against double jeopardy on the basis of collateral estoppel or issue preclusion (different names for the same thing), and CAAF granted review to determine:

Whether the military judge erred when he denied the defense motion to suppress evidence of conduct for which Appellant had been acquitted at his first trial.

Judge Ohlson’s opinion for the unanimous CAAF holds that issue preclusion does not apply to the facts of Hutchins’ case and so the military judge could properly apply Mil. R. Evid. 403 and 404(b) to the prosecution’s evidence that implicated the acquitted offenses. Furthermore, because Hutchins “does not meaningfully contest the military judge’s application of those rules on their own terms,” CAAF does not review the military judge’s underlying ruling admitting the evidence.

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A reader posed an interesting question in an email. Has this happened before?

Military prosecutors in the case of a Navy SEAL charged with killing an Islamic State prisoner in Iraq in 2017 installed tracking software in emails sent to defense lawyers and a reporter in an apparent attempt to discover who was leaking information to the media, according to lawyers who told The Associated Press that they received the corrupted messages.

The tracking software appears to be “an unusual logo of an American flag with a bald eagle perched on the scales of justice” included in an email from the lead prosecutor, Navy Commander Christopher Czaplak. Images in email are routinely used for tracking purposes, though the image files are typically transparent. Navy technology, it seems, is less subtle.

The accused is Navy Special Operations Chief Edward Gallagher. He was charged with premeditated murder (in connection with combat operations), aggravated assault, assault with a dangerous weapon, wrongful use and possession of controlled substances, and various violations of Article 134, though a military judge recently dismissed two of the charges. Gallagher was in pretrial confinement until President Trump intervened.

In January, Gallagher’s brother wrote this piece about the case, asserting in part:

The most infuriating part of this whole charade for our family has been the actions of the Navy, in particular NCIS and Navy prosecutors.

From the beginning, it’s been a coordinated smear campaign so they could make themselves look good by painting him as a monster. He takes prescribed pain medication for a damaged disc in his back, so they threw in a drug charge. He vented to friends about how this whole investigation is a farce; suddenly he’s obstructing justice. Prosecutors actually had the gall to use a text message argument between him and his wife about leaving a movie theatre early to insinuate spousal abuse. These are the steps the prosecution is taking to grasp at anything—literally anything—to smear the name of a good man.

This tactic, of painting Eddie as a villain, is a playbook used by prosecutors time and again to distance themselves from responsibility, muddy the waters, and convince you emotionally that he must be guilty.