CAAFlog » MCM

In advance of a public meeting scheduled for next Wednesday, February 19, 2020, at CAAF, the Joint Service Committee has published these proposed changes to the Manual for Courts-Martial (2019 ed.).

From my initial review, the most significant proposals (with strikeout representing deleted language and underline representing new language) are:

1. Causing all guilty pleas (except for conditional pleas) to waive all waivable motions. Historically, a plea of guilty waived only objections related to the factual issue of guilt. As a result, pretrial agreements (first in the Air Force, then in other services) began to include a provision stating that the agreement waived all waivable motions, and CAAF began enforcing the term in United States v. Gladue, 67 M.J. 311 (C.A.A.F. 2009). The JSC now proposes to make it an inherent part of a plea, with the following modification to R.C.M. 910(j):

(j) Waiver. Except as provided in paragraph (a)(2) of this rule, a plea of guilty which results in a finding of guilty waives any objection, whether or not previously raised, insofar as the objection relates to the factual issue of guilt of the offense(s) to which the plea was made any non-jurisdictional defect that occurred prior to the plea.

2. Adding a good-faith provision for lost statements under R.C.M. 914. That rule requires production of a witness’s prior statements after the witness testifies on direct examination, and it is the subject of today’s oral argument in United States v. Clark, No. 19-0411/AR (CAAFlog case page). CAAF considered a judicially-created good faith exception for the Jencks Act, 18 U.S.C. § 3500, (which R.C.M. 914 mirrors) in United States v. Muwwakkil, 74 M.J. 187 (C.A.A.F. 2015) (CAAFlog case page). The JSC proposes to add such an exception into the text of the military rule, with a new subparagraph (e)(2):

(2) Failure to comply in good faith. In the event that the other party cannot comply with this rule because the statement is lost, and can prove, by a preponderance of evidence, that the loss of the witness statement under subsections (a), (b), and (c) of this rule was not attributable to bad faith or gross negligence, the military judge may exercise the sanctions set forth in subsection(e)(l) of this rule if-

(A) evidence is of such central importance to an issue that it is essential to a fair trial,

(B) there is no adequate substitute for such evidence.

3. Allowing special courts-martial to sentence officers to confinement. The Manual for Courts-Martial has long permitted only a general court-martial to sentence an officer to confinement. The current limitation is found in R.C.M. 1003(c)(2)(ii) (“Only a general court-martial may sentence a commissioned or warrant officer or a cadet, or midshipman to confinement.”), while ¶ 126d of the 1951 Manual permitted an officer to be confined only if also sentenced to a dismissal (a sentence that only a general court-martial could adjudge). The JSC proposes to delete the limitation from the MCM.

4. Codification of Perkins and further expansion of the good faith exception for an invalid warrant or search authorization. Mil. R. Evid. 311 codifies the judicially-created good faith exception to the requirement for a search warrant (or authorization, under the UCMJ), where three conditions are met: (1) the warrant/authorization must have been issued by competent authority; (2) the person who issued it must have had a substantial basis to find probable cause for its issuance; and (3) the officials seeking and executing it must have reasonably and with good faith (under an objective standard) relied on it. CAAF rejected a plain-language reading of the second condition in United States v. Perkins, 78 M.J. 381 (C.A.A.F. Apr. 23, 2019) (CAAFlog case page), the #8 Military Justice Story of 2019, and applied the rule in a way that allows searches lacking probable cause in all but the most egregious circumstances. The JSC now proposes to codify CAAF’s decision with respect to the second condition, and to permit even more unlawful searches by relaxing the first condition, with the following additions to Mil. R. Evid. 311(c)(3)(A) and (B):

“(3) Good Faith Exception of a Warrant or Search Authorization: Evidence that was obtained as a result of an unlawful search or seizure may be used if:

(A) the search or seizure resulted from an authorization to search, seize, or apprehend issued by an individual competent to issue the authorization under Mil. R. Evid. 315(d) or from a search warrant or arrest warrant issued by competent civilian authority, or the officials seeking and executing the authorization or warrant reasonably and with good faith believed the individual was competent to issue the authorization or warrant;

(B) the officials seeking and executing the authorization or warrant reasonably and with good faith believed that the individual issuing the authorization or warrant had a substantial basis for determining the existence of probable cause; and

(C) the officials seeking and executing the authorization or warrant reasonably and with good faith relied on the issuance of the authorization or warrant. Good faith is to be determined using an objective standard.

5. Adding a new listed Article 134 offense of Sexual Harassment as ¶ 108, Part IV, MCM. While the services have effectively used Article 92 (orders violation) to prosecute incidents of sexual harassment (see United States v. Rosario, 76 M.J. 114 (C.A.A.F. Feb. 22, 2017) (CAAFlog case page); United States v. Goodman, 70 M.J. 396 (C.A.A.F. 2011) (CAAFlog case page)), and have even used Article 93 (maltreatment) in egregious cases (see United States v. Caldwell, 75 M.J. 276 (C.A.A.F. May 16, 2016) (CAAFlog case page)), the JSC proposes to add sexual harassment as a listed offense under Article 134, with the following elements:

(1) That the accused knowingly made sexual advances, demands or requests for sexual favors, or engaged in other conduct of a sexual nature;

(2) That such conduct was unwelcome;

(3) That under the circumstances, such conduct:

(a) Would cause a reasonable person to believe, and a certain person does believe, that submission to such conduct would be made, either explicitly or implicitly, a term or condition of a person’s job, pay, career, benefits or entitlements;

(b) Would cause a reasonable person to believe, and a certain person does believe, that submission to, or rejection of, such conduct would be used as a basis for career or employment decisions affecting that person; or

(c) Was so severe, repetitive, or pervasive that a reasonable person would perceive, and a certain person does perceive, an intimidating, hostile, or offensive working environment.

and

(4) That, under the circumstances, the conduct of the accused was either: (i) to the prejudice of good order and discipline in the armed forces: (ii) was of a nature to bring discredit upon the armed forces: or (iii) to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces.

The following notice is posted on CAAF’s website:

The Joint Service Committee on Military Justice

Notice of Public Meeting

When: Wednesday, February 19, 2020, at 10:00 a.m.

Where: U.S. The Court of Appeals for the Armed Forces, 450 E Street, N.W., Washington, D.C. 20442-0001

Purpose: To solicit public comments on proposed amendments to the Manual for Courts-Martial. Proposed changes will be available via the Federal Register prior to the meeting.

Questions: Contact Lieutenant Colonel Adam S. Kazin, adam.s.kazin.mil@mail.mil

Information about the Joint Service Committee is available at https://jsc.defense.gov/

In a federal register notice published yesterday and available here, the Joint Service Committee on Military Justice (JSC) invites members of the public to suggest changes to the Manual for Courts-Martial.

Proposed changes are due by May 13, 2019.

Available here in PDF (with some bookmarks).

The Joint Service Committee recently published the 2019 edition of the Manual for Courts-Martial.

It’s available here.

In a federal register notice published today and available here, the Joint Service Committee proposes additional changes to the Manual for Courts-Martial, as amended by Executive Order 13825 (to take effect on January 1, 2019).

Comments are due by August 27, 2018.

Last year the Joint Service Committee on Military Justice (JSC) published proposed changes to the Manual for Courts-Martial to implement the Military Justice Act of 2016, and it solicited public comments on those proposed changes. The proposed changes were discussed in this post, a public hearing on the changes was discussed in this post, and I discussed my public comment in this post.

The proposed changes – with modifications – were approved by President Trump on March 1, 2018, in Executive Order 13825.

Today, in a Federal Register notice available here, the JSC responds to the public comments it received.

I can’t recall the JSC ever responding in this manner before, but I’m glad to see it. It’s a nice bit of transparency.

Available here.

More to follow.

I’ve been advised that the President just signed an executive order amending the Manual for Courts-Martial to implement the Military Justice Act of 2016.

More to follow.

Update: it’s official.

§ 5542(b) of the Military Justice Act of 2016 requires the President to “prescribe regulations implementing [the MJA] not later than one year after the date of the enactment of this Act.”

That date was December 23, 2017.

To my knowledge, President Trump has still – over two months later – not signed an executive order implementing such regulations. The Joint Service Committee published proposed regulations – in the form of a significantly updated Manual for Courts-Martial – on July 11, 2017, it accepted and considered public comments (including mine), and it held a public meeting on August 3, 2017.

But like a boot in swamp mud, the process is stuck.

§ 5542(b) of the Military Justice Act of 2016 requires the President to “prescribe regulations implementing [the MJA] not later than one year after the date of the enactment of this Act.”

That date was December 23, 2017.

To my knowledge, President Trump has still – a month later and counting – not signed an executive order implementing such regulations. The Joint Service Committee published proposed regulations – in the form of a significantly updated Manual for Courts-Martial – on July 11, 2017, it accepted and considered public comments (including mine), and it held a public meeting on August 3, 2017.

But like a boot in swamp mud, the process is stuck.

§ 5542(b) of the Military Justice Act of 2016 requires the President to “prescribe regulations implementing [the MJA] not later than one year after the date of the enactment of this Act.”

That date was yesterday.

To my knowledge, President Trump has not signed an executive order implementing the proposed changes to the Manual for Courts-Martial.

Assuming President Trump has not acted, this is the second administration in a row to be significantly tardy in military justice matters. During the Obama administration, we waited more than four years for regulations implementing the 2012 version for Article 120, and we never got an update to Mil. R. Evid. 413 to resolve constitutional problems identified in 2011 (though President Obama was quite diligent about making prosecution-friendly changes to the MCM).

Our #1 Military Justice Story of 2016 was the Military Justice Act of 2016. The Act makes the most significant changes to the UCMJ since the Military Justice Act of 1983. The changes won’t take effect until a date established by President Trump (but no later than January 1, 2019). The anticipated effective date of the changes is January 1, 2019.

The Act also requires promulgation of implementing regulations within one year of the date of enactment; so by December 23, 2017. In advance of that deadline the Joint Service Committee published a large number of proposed changes to the Manual for Courts-Martial (noted here), held a public hearing (noted here), and invited public comment.

I attended the hearing and made comments. I also submitted written comments. You can download my written submission from the regulations.gov site here.

My written comments addressed six of the proposed changes, and recommended five additional changes. They were:

Public comment on proposed changes to the Manual for Courts-Martial:

a. Do not eliminate appellate counsel’s right to review the complete record of trial.

b. Do not radically alter the existing plea agreement system.

c. The sentence limitation portion of a plea agreement is not binding upon members.

d. Adopt a modified version of Proposal #2 for impaneling members and alternate members.

e. Ensure consistency in prosecutions under Clause 1 and Clause 2 of Article 134.

f. The proposed change to Mil. R. Evid. 412 is long overdue.

Suggested additional changes to the Manual for Courts-Martial:

a. Clarify that Government counsel ordinarily represents either the prosecution or the appellate government division, and not the Government at large.

b. Increase procedural protections for a person accused of contempt.

c. Limit the use of personal identifiers in court-martial documents.

d. Require production of a privilege log when any entity that is represented by counsel asserts an evidentiary privilege.

e. Restrict the Government to the privileges contained in Military Rules of Evidence 505, 506, and 507.

Here’s some detail on my comments about the proposed changes.

Read more »

The DoD has formally published the proposed changes to the MCM necessary to implement the Military Justice Act of 2016 (previously discussed here).

The Federal Register notice is available here.

The Regulations.gov folder is available here.

The Regulations.gov folder includes a single, 636-page PDF titled Annex 1 & 2. Annex 1 is proposed revisions to the current MCM to take effect immediately upon promulgation by the President. Annex 2 is proposed revisions to take effect with the changes made by the MJA (anticipated to occur on January 1, 2019).

The Joint Service Committee is accepting public comments (including electronically at the Regulations.gov link above) and will hold a public meeting in August:

Comments on the proposed changes must be received no later than September 11, 2017. A public meeting for comments will be held on August 3, 2017, from 10 a.m. until noon, in the United States Court of Appeals for the Armed Forces building, 450 E Street, NW., Washington, DC 20442-0001. Commentators will be heard in order of arrival and check-in, and will be limited to five minutes.

I plan to both comment and attend the public meeting.

The Federal Register notice includes a request for comment on a specific proposed change to R.C.M. 1103A:

The Department of Defense also requests comments on a proposal by a Federal Advisory Committee, the Judicial Proceedings Since Fiscal Year 2012 Amendments Panel (JPP). The JPP’s June 2017 report suggested that Rule for Courts-Martial 1103A as proposed by Annex 1 and Rule for Courts-Martial 1113 as proposed by Annex 2 be further revised to include the following: “Prior to a decision to permit examination of material described in this subparagraph, notice and an opportunity to be heard shall be given to any person whose records are about to be examined and to appellate counsel.” The report making that recommendation is available at http://jpp.whs.mil/​Public/​docs/​08-Panel_​Reports/​07_​JPP_​VictimsAppRights_​Report_​Final_​20170602.pdf. The Department invites public comment on the JPP’s proposal.

R.C.M. 1103A allows appellate authorities – including counsel for the Government divisions and the appellant – to examine sealed matters attached to a record of trial. These sealed matters could – under increasingly rare circumstances – include private information pertaining to an alleged victim (such as mental health records) that were reviewed in camera but not otherwise disclosed at trial.

Last year the Air Force Appellate Government Division asked CAAF to prevent appellate defense counsel from reviewing such material, but CAAF rebuffed the request (discussed here and here). The JSC then proposed changing the R.C.M. to prevent such review (noted here). I submitted a public comment (discussed here) opposing the change. The change persists in this new round of proposals, and the JSC does not offer any rationale for it.

Our #1 Military Justice Story of 2016 was the Military Justice Act of 2016. The Act makes the most significant changes to the UCMJ since the Military Justice Act of 1983. The changes won’t take effect until President Trump establishes an effective date that need only be no later than January 1, 2019.

Today a reader forwarded me the proposed revision to the MCM. The DoD will soon publish this proposal on the internet (pursuant to this approval dated Monday). The proposal includes the following three documents (each item is a link to the document hosted on CAAFlog):

A draft Executive Order indicating an effective date for the MJA of January 1, 2019.

Annex 1 to the draft Executive Order, making changes effective immediately once the Order is signed (at a glance, these change appear to be the JSC proposed changes for 2017 discussed in this post, about which I submitted a public comment discussed in this post).

Annex 2 to the draft Executive Order, making changes incorporating the MJA. Annex 2 is 619 pages and reproduces Parts I-V of the MCM in their entirety. It also includes an Appendix 2.1 (PDF page 605) containing non-binding disposition guidance for charges, and an Appendix 12A (PDF page 611) listing Presidentially-prescribed lesser included offenses.