CAAFlog » Military Justice Scholarship » Scholarship Saturday

Five years ago, in United States v. Torres, 74 M.J. 154 (C.A.A.F. May 12, 2015) (CAAFlog case page), CAAF grappled with the defense of automatism, which it defined as:

“[a]ction or conduct occurring without will, purpose, or reasoned intention,” “behavior carried out in a state of unconsciousness or mental dissociation without full awareness,” and “[t]he physical and mental state of a person who, though capable of action, is not conscious of his or her actions.” Black’s Law Dictionary 160 (10th ed. 2014). “Automatism” is sometimes referred to as an “‘unconsciousness defense.'” United States v. Axelson, 65 M.J. 501, 515 (A. Ct. Crim. App. 2007) (quoting Eunice A. Eichelberger, Annotation, Automatism or Unconsciousness as Defense to Criminal Charge, 27 A.L.R.4th 1067, § 2 (1984)).

74 M.J. at 156 n.3. Distinguishing that defense from a defense of lack of mental responsibility (where the accused has the burden to prove that he was suffering from a metal disease or defect), CAAF found error in a military judge’s failure to give a tailored automatism instruction to the members that would have forced the prosecution to disprove the defense (and thereby prove that the appellant’s conduct was voluntary). The court also adopted the acus reus approach to automatism, holding that in future cases “where the issue of automatism has been reasonably raised by the evidence, a military judge should instruct the panel that automatism may serve to negate the actus reus of a criminal offense.” 74 M.J. 158.

An article published last year in the Military Law Review titled Automatism: A complete yet imperfect defense, by Marine Corps Captain Brendan J. McKenna, 227 Mil. L. Rev. 46 (2019) (available here), reviews CAAF’s decision in Torres and the results of a Marine court-martial in which the defense of automatism was employed (unsuccessfully) shortly after the Torres opinion was issued. The article also considers limits to the automatism defense, including the possibility that raising the defense might lead to an unprivileged R.C.M. 706 inquiry into the accused’s mental capacity or responsibility, and to a charge of fraudulent enlistment.

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Last year the Army Lawyer published The Special Victim Counsel Program at Five Years: An Overview of Its Origins and Development, by Colonel Louis P. Yob, the program manager for the Army’s Special Victims Counsel (SVC) Program. The piece is available here.

Colonel Yob tracks the development of the SVC program from the release of the uninformed, dishonest, or both movie The Invisible War in 2012, to CAAF’s decision in LRM v. Kastenberg, 72 M.J. 364 (C.A.A.F. 2013) (CAAFlog case page), and the enactment of 10 U.S.C. § 1044e in 2013.

The Army established the SVC Program Manager (PM) and Program Manager’s Office (PMO), led by an active duty Colonel (O-6) and staffed by a mix of active and reserve personnel. The PM determined “that each SVC should carry no more than twenty-five clients at a given time,” and so requested authorization for 48 SVC positions. 47 such positions were ultimately approved and created. Yet SVC attorneys faced initial resistance from other participants in the military justice process. Specifically:

many trial counsel expressed concern that the attorney-client relationship of the SVC and the victim impaired a trial counsel’s ability to build his or her own relationship with a victim. Many defense counsel viewed SVCs as yet another government attorney to oppose them. Some trial judges initially limited the role of SVCs and scheduled trial dates without regard to SVC availability. Also, Criminal Investigation Command (CID) investigators did not appreciate reduced access to victims for immediate questioning, or having limitations on victim interviews due to objections raised on behalf of the victim by their SVC. This sometimes led to acrimony between CID offices and SVCs, which included a number of complaints being lodged by both sides against the other for perceived wrongs.

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The military justice system’s unique features call for military judges to take a different approach than their civilian counterparts by affirmatively instructing court-martial panels about their authority to “nullify” a conviction even when the government has met its burden of proof.

So begins an article published last year in Volume 80 of the Air Force Law Review by Colonel Jeremy S. Weber titled Court-Martial Nullification: Why Military Justice Needs A “Conscience of the Commander.”

Describing jury nullification as “float[ing] in a sort of legal purgatory in modern civilian criminal justice, neither encouraged nor outright discouraged,” 80 A.F. L. Rev. at 12, Colonel Weber tackles CAAF’s precedent that “a court-martial panel does not have the right to nullify the lawful instructions of a military judge,” 80 A.F. L. Rev. at 21 (quoting United States v. Hardy, 46 M.J. 67, 75 (C.A.A.F. 1997)). But that precedent “did not address whether it would be error to provide [a nullification] instruction, or whether defense counsel may argue for the members to engage in nullification. Those questions were left for another day.” 80 A.F. L. Rev. at 22.

Perhaps that day has come.

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The Supreme Court opened its new session last week by hearing argument in the case of Ramos v. Louisiana (oyez), which presents the question of whether the Due Process Clause of the Fourteenth Amendment requires a State jury to be unanimous to convict.

The Justices’ tenor from the bench suggested that they are inclined to hold that criminal verdicts in America must be unanimous. Indeed, the mood of the Justices was perhaps best illustrated by Justice Kavanaugh’s prodding of government counsel during their rebuttal argument:

It seems to me there are two practical arguments for overruling Apodaca[,] [which permits non-unanimous criminal verdicts in State jurisdictions (oyez)]. One is, as Justice Gorsuch says, there are defendants who have been convicted and sentenced to life, 10/2 or 11/1, who otherwise would not have been convicted. So that seems like a serious issue for us to think about in terms of overruling.

And, the second is that the rule in question here is rooted in a — in racism, you know, rooted in a desire, apparently, to diminish the voices of black jurors in the late 1890s. [. . .]

So do either of those two things — or I guess I should say why aren’t those two things enough to overrule[?] [. . .] [W]hy aren’t those two things enough, again, unfairness to defendants and rooted in racism?

While it may come to pass that the Supreme Court’s decision in Ramos will banish nonunanimous verdicts from American courtrooms, the practice will remain in one jurisdiction – the military. (That is, except for the most serious cases. Even in the military, Articles 25a and 52 of the UCMJ require the unanimous concurrence of twelve members to convict a person of a capital offense. It seems, when it really matters, even military law recognizes that unanimous verdicts are more reliable.)

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Past articles in this column have covered developments that explore the question of judicial independence in the military justice system. In February of this year, we discussed arguments made before the International Court of Justice wherein India called it a “manifest failing” that military judges in Pakistan’s court-martial system are not “independent of the executive.” India asserted having a judge outside of the executive branch, even in courts-martial, is one of the “indispensable elements of due process . . . in present times with the evolution of human rights jurisprudence.” (Scholarship Saturday: Whether courts-martial are suitable forums for the trial of serious offenses)

Then in April of this year, we covered the D.C. Circuit’s decision in Al-Nashiri, wherein that Court held that it was an “intolerable” conflict of interest for a judge sitting on a military commission to be seeking employment from the agency prosecuting that proceeding. (Scholarship Saturday: Questions regarding military judicial independence in the wake of Al-Nashiri)

Furthering the line of inquiry regarding what it means to be “independent” in the military justice system, New York University’s national security law blog, Just Security, recently published an article penned by the retired Judge Advocate General for the Canadian Forces, Ken Watkin, Brigadier General (Ret), entitled “‘Fiat Justitia’: Implications of a Canadian Military Justice Decision for International Justice.” General Watkin’s article covers the Canadian Supreme Court’s recent decision in R. v. Stillman, a case which bears importance given the fact that “military justice system compliance with human rights norms has increasingly been the subject of international debate and scrutiny.”

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The Monroe H. Freedman Institute for the Study of Legal Ethics at Hofstra University is sponsoring a Symposium issue of the Hofstra Law Review relating to legal ethics in military justice, with an intended publication date of Summer 2020. The Symposium will be dedicated to exploring the unique professional responsibility issues faced by attorneys and judges working in the military criminal law system.

While the majority of the articles in the Symposium will be by invitation, one or two articles will be selected through an open submission process. If you are interested in having a piece published, please submit a draft of 8,000 words or less, in law review format, to the following email address by December 31, 2019: . All other inquiries may be directed to the same email address.

Acceptable topics include:

· Competence

· Conflicts of Interest

· Command Influence

· Attorney-Client Confidentiality

· Judicial Ethics


Eric Freedman
Siggi B. Wilzig Distinguished Professor of Constitutional Rights
Maurice A. Deane School of Law at Hofstra University

Ellen Yaroshefsky
Howard Lichtenstein Distinguished Professor of Legal Ethics and Executive Director of the Monroe H. Freedman Institute for the Study of Legal Ethics
Maurice A. Deane School of Law at Hofstra University

Brenner Fissell
Associate Professor of Law
Maurice A. Deane School of Law at Hofstra University

There is a big distinction between merely forfeiting an objection at trial and affirmatively waiving the issue. As Judge Ohlson stated in his dissent in United States v. Hardy, 77 M.J. 438 (CAAF 2018) (CAAFlog case page):

Waiver is serious business. It extinguishes rights of an accused, forever banishing waived legal issues from the purview of any appellate court.

In contrast, if a court finds that the accused merely “forfeited” their opportunity to object (as opposed to affirmatively waiving the objection), then that court may correct that error on appeal if the error is “plain.”

The distinction between waiver and forfeiture has been a topic of frequent discussion on this blog. Indeed, “waiver mania” was the #3 Military Justice Story of 2017. Then, the #5 Military Justice Story of 2018 was the President’s effort to “calm waiver mania” by amending the language of Rule for Courts-Martial 905(e) and 919(c) to make clear an intent to apply forfeiture rather than waiver to errors the accused could have objected to prior to trial, but didn’t.

The Air Force JAG Corps’ online journal, The Reporter, recently published an article by retired Air Force Colonel James A. Young entitled, “R.C.M. 905(e)’s New, Incomprehensible Standard.” Readers may recognize Colonel Young as the Senior Legal Advisor to CAAF Chief Judge Scott W. Stucky.

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The latest volume of the Military Law Review (Volume 227, Issue 1) includes an article authored by the Army JAG School’s Criminal Law Chair, Colonel John Kiel, Jr., entitled, “’So You’re Telling Me There’s A Chance’: Why Congress Should Seize the Opportunity to Reform Article 37 (UCI) of the UCMJ.

Colonel Kiel insists that Congress needs to revise the language of Article 37(a). That statute, presently reads, in relevant part:

No person subject to this chapter may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts.

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This past week, the Government Accountability Office (GAO) published its’ latest report to the House Committee on Armed Services, entitled: DoD and the Coast Guard Need to Improve their Capabilities to Assess Racial and Gender Disparities.

From that title, one might presume that the GAO was merely advising lawmakers on the military services’ inadequate bookkeeping. And, indeed, the report does spend some time highlighting the armed forces’ deficient efforts “to collect and maintain consistent information about race and ethnicity in their investigations, military justice, and personnel databases.” Report at 22. However, despite lackluster database utilization by DoD and DHS agencies, enough data was apparently present for GAO reach this core conclusion:

Our analysis of available data identified racial and gender disparities in all of the military services for service members with recorded investigations, and for four of the military services for trials in special and general courts-martial, but these disparities generally were not present in the convictions or punishments of cases. These findings suggest disparities may be limited to particular stages of the military justice process for the period covered by our analysis.

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On Friday, administration officials posited the President may invoke the “tremendous power” of The Insurrection Act of 1807 (10 U.S.C. 252) in order to have federal troops enforce the Nation’s domestic immigration laws. Of course, this is not new – a small number of judge advocates have already been detailed to the Department of Justice since last summer, augmenting that agency as immigration prosecutors. That move was decried by some lawmakers as “unwise,” but the practice was not halted. But, the administration’s latest rhetorical volley has inspired fevered commentary across the political news spectrum. Into that fray comes a short thought-piece by Professor Steve Vladeck, of the University of Texas School of Law, which was just recently published in The Atlantic.

Professor Vladeck’s commentary posits:

[A]lthough Congress in the Posse Comitatus Act of 1878 generally prohibited use of the federal military for domestic law enforcement, the Insurrection Act was always understood as the principal exception to that general rule.

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As covered on this blog, on April 16, 2019, the Court of Appeals for the District of Columbia Circuit issued its decision on a petition for a writ of mandamus in the case of In re: Abd Al-Rahim Hussein Muhammed Al-Nashiri. The Circuit Court granted Al-Nishiri’s request to vacate all orders issued after November 19, 2015 by the former Air Force Chief Trial Judge—now a civilian immigration judgeVance Spath. The reason for that action was that Judge Spath issued those orders while he had a “concealed and disqualifying ethical conflict.” Opinion at 15. The saga has now drawn the attention of major news outlets – Washington Post, New York Times, Bloomberg, Fox News.

Digging into the details, the Circuit Court found that Judge Spath engaged in undisclosed negotiations for future employment with the Attorney General while simultaneously presiding over Al-Nishiri’s commission. That was a problem because not only was one of the Attorney General’s subordinates from the Department of Justice detailed to the prosecution team in Al-Nishiri, but the Circuit Court was also more generally concerned because “the Attorney General plays an important institutional role in military commissions.” Opinion at 21.

The Court found the conflict of interest to be “intolerable,” declaring:

Unbiased, impartial adjudicators are the cornerstone of any system of justice worthy of the label.

Opinion at 17.

Simply put, “a judge cannot have a prospective financial relationship with one side yet persuade the other that he can judge fairly in the case.”

Opinion at 19 (citing Pepsico, Inc. v. McMillen, 764 F.2d 458, 460 (7th Cir. 1985)).

While the Court’s decision in Al-Nashiri arises from the Guantanamo Bay military commissions, the rationale from the opinion naturally reverberates into the military court-martial system. If the mere possibility of a future employment relationship between Judge Spath and the Attorney General in Al-Nashiri was problematic, then the consummated relationship between every court-martial’s military judge and their respective Judge Advocate General—who appoints them, removes them, and controls their future assignments—is a particularly precarious arrangement. It is that situation that invites a deeper examination of whether military judges may properly be considered not only impartial, but also independent.

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Well son you got a statement you’d like to make

Before the bailiff comes to forever take you away

Now judge judge I had debts no honest man could pay

The bank was holdin’ my mortgage and they was takin’ my house away

Now I ain’t sayin’ that makes me an innocent man

But it was more ‘n all this that put that gun in my hand

Well your honor I do believe I’d do better off dead

And if you can take a man’s life for the thoughts that’s in his head

Then won’t you sit back in that chair and think it over judge one more time

Let em’ shave off my hair and put me on the execution line

Bruce Springsteen, Johnny 99, on NEBRASKA (Columbia Records 1982)

The most recent publication of the Air Force Law Review contains an article delving into the propriety of allowing convicted servicemembers to make unsworn statements before sentencing in trials by court-martial. The article is by Air Force Major John S. Reid and is entitled “Undoing the Unsworn: The Unsworn Statement’s History and a Way Forward,” 79 A.F. L. Rev. 121 (2018).

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The International Commission of Jurists is a non-governmental organization focused on promoting the rule of law. It was founded in 1952 to investigate Soviet human rights abuses, but has expanded its practice since that time. The commissioners are 60 eminent judges, attorneys and academics from around the world. Their work has won prestigious awards from the Council of Europe and the United Nations.

In a recent publication entitled “The Right to a Remedy and Reparation for Gross Human Rights Violations,” the Commission opined:

Experience has shown that the judgment of gross human rights violations by military tribunals has frequently led to impunity for those violations, denial of the right to an effective remedy (especially as leading to prosecution and punishment of those responsible) and the denial of reparation to victims. This recurring phenomenon has led international bodies to hold that gross violations of human rights should be tried by civilian and not by military courts.

The Right to a Remedy, at 246. In turn, the Commission of Jurists defines “gross human rights violations” as:

Violations that affect in qualitative and quantitative terms the most basic rights of human beings, notably the right to life and the right to physical and moral integrity of the human person.

The Right to a Remedy, at xii. Accordingly, in the Commission of Jurists’ eyes, “gross human rights violations” would include:

Genocide, slavery and slave trade, murder, enforced disappearances, torture or other cruel, inhuman or degrading treatment or punishment, prolonged arbitrary detention, deportation or forcible transfer of population, and systematic racial discrimination[.] . . . Deliberate and systematic deprivation of essential foodstuffs, essential primary health care or basic shelter and housing may also amount to gross violations of human rights.


The Commission of Jurists also endorsed the view of the UN Commission on Human Rights, which has held:

The competence of military tribunals should be limited to strictly military offences committed by military personnel and should exclude military offenses committed against the civilian population.

The Right to a Remedy, at 247. The Commission of Jurists notes that several other prominent international organizations have similarly adopted the UN Commission on Human Rights’ position.

The Commission of Jurists concluded:

In sum, the competence of military justice should be defined by a functional criterion.  Military courts should have competence over offences of a military nature committed by military personnel. Gross human rights violations cannot be understood to ever constitute offences of a military nature and therefore should not, in principle, be tried by military courts.

The Right to a Remedy, at 250.

Readers may wonder what impact the International Commission of Jurists’ opinions might have on actual practice.

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This blog has frequently discussed ongoing efforts to make the various disciplines of forensic science more reliable:

Scholarship Saturday: Strategies to improve the quality of expert testimony offered at trial (August 12, 2017)

Scholarship Saturday: The chronic problem of invalid expert opinion testimony (August 5, 2017)

Scholarship Saturday: DOJ asks the public to submit ideas on forensic science (April 15, 2017)

Scholarship Saturday: Forensic science standards beginning to take form (April 1, 2017)

Scholarship Saturday: Believe the accused (April 25, 2015)

A recent three-part video series entitled “False Positive”, created by Joss Fong and published by Vox Media, explores the issue anew, through the lens of the 1985 wrongful conviction of Robert Lee Stinson.

At 21 years old, Mr. Stinson was arrested and wrongfully incarcerated for 23 years because of unreliable in-court expert opinion testimony from two government forensic scientists.

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The 2019 National Defense Authorization Act (NDAA) became law on August 13, 2018 and has two provisions that are particularly important for dealing with domestic abuse incidents in the military – from January 1, 2019, on.

First, Congress has amended Article 128 of the Uniform Code of Military Justice (UCMJ), to expressly state that the acts of strangulation or suffocation constitute aggravated assaults.

Second, a new enumerated offense entitled “Art. 128b. Domestic Violence” has been created.

This new crime punishes a broad range of misconduct.

Committing a violent offense (or violating a protective order with the intent to commit a violent offense) against a protected person is, of course, punishable under the new Article 128b.  But, so are non-violent offenses (including, expressly, violating protective orders or harming animals) when they are committed with the intent to intimidate or threaten a protected person.

These important legislative changes are not (yet) reflected in Part IV of the most current version of the Manual for Courts-Martial (MCM) published by the Joint Service Committee.

Accordingly, we do not yet have approved elements for use at trial, and no declared maximum punishment.  Practitioners will have to seek guidance elsewhere.

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