Soon we will continue our annual tradition by counting down the Top Ten Military Justice Stories of 2019. But before we do that, let’s revisit last year’s list.
#10 was the August 13, 2018, memorandum from then-SECDEF James Mattis titled Discipline and Lethality in which Mattis asserted that “it is a commander’s duty to use [the military justice system].”
#9 was Article 6b – the victims’ rights provision in the UCMJ – and CAAF’s decision in United States v. Barker, 77 M.J. 377 (C.A.A.F. May 21, 2018) (CAAFlog case page), that explained that those rights are “personal to the victim in each individual case.”
#8 was the reversal of the contempt finding against Marine Corps Brigadier General John Baker, chief of the Military Commissions Defense Organization, because a military judge detailed to a military commission may not unilaterally punish contempt.
#7 was CAAF’s decision in United States v. Robinson (AF), 77 M.J. 303 (C.A.A.F. 2018) (CAAFlog case page), that limited the scope of a significant decision from the year before: United States v. Mitchell, 76 M.J. 413 (C.A.A.F. Aug. 30, 2017) (CAAFlog case page) (itself the #4 Military Justice Story of 2017). In Mitchell, CAAF rejected a prosecution appeal of a military judge’s suppression of the fruits of a cell phone search based on the fact that investigators (who had a search authorization) asked the accused for his passcode after he requested an attorney. In Robinson, however, CAAF affirmed a conviction despite the fact that investigators did substantially the same thing, but they did so in the context of obtaining Robinson’s consent for the search (not executing an authorization).
#6 was CAAF’s holding that retired members can receive punitive discharges, in United States v. Dinger, 77 M.J. 447 (C.A.A.F. Jun. 18, 2018), cert. denied, 139 S.Ct. 492 (Nov. 13, 2018) (CAAFlog case page).
#5 was calming waiver mania, and focused on two 2018 decisions addressing the difference between waiver and forfeiture, plus a rules change that took effect on January 1, 2019.
#4 was a new paradigm for discharge from active duty, as CAAF’s decision in United States v. Christensen, 78 M.J. 1 (C.A.A.F. Jul. 10, 2018) (CAAFlog case page), de-emphasized the traditional three-part test for a valid discharge that terminates court-martial jurisdiction (delivery of a DD-214, final accounting of pay, and final check-out), in favor of a review of the totality of the circumstances (that included the accused’s objectively reasonable belief that he was discharged).
#3 was CAAF’s clarification of the statute of limitations for rape, in United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page). The decision was an unexpected result in an interlocutory case (where CAAF granted review and heard oral argument on different issues, and only then requested briefing on this issue), and it still may not survive scrutiny by the Supreme Court.
#2 was the incredible reversal of Senior Chief Barry’s conviction of sexual assault. Barry was convicted by a general court-martial composed of a military judge alone, and the convening authority – Rear Admiral Patrick Lorge – approved the findings and most of the sentence. But Lorge had his doubts about Barry’s guilt, and he expressed them in a memo he attached to the record. That memo, and the surrounding circumstances, led CAAF to reverse the conviction, with Chief Judge Stucky’s majority opinion beginning, “It is not every day that a general court-martial convening authority begs our forgiveness for his failure of leadership in approving findings he believed should not be approved.” 78 M.J. at 72.
#1 was the Supreme Court’s decision in Ortiz v. United States, 138 S. Ct. 2165 (Jun. 22, 2018). In its first plenary review of a court-martial since United States v. Denedo, 556 U.S. 904 (2009) (the #8 Military Justice Story of 2008), a majority of the Court found that “the military justice system’s essential character—in a word, judicial—provides no reason to [distinguish it from an ordinary federal court].” 138 S. Ct. at 2174. Nevertheless, nothing prevented appellate military judges from simultaneously serving on both a service Court of Criminal Appeals and on the Court of Military Commission Review.