CAAFlog » Year in Review

The prosecution of Navy Special Operations Chief Edward Gallagher began in September 2018, when Gallagher was charged with numerous offenses including premeditated murder, aggravated assault, assault with a dangerous weapon, wrongful use and possession of controlled substances, and various violations of Article 134. Gallagher was also placed into pretrial confinement based on accusations that he was intimidating witnesses.

The charges against Gallagher were serious, and the Navy acted like it was taking the case seriously. An experienced judge advocate – Navy Commander Chris Czaplak – was assigned to prosecute the case, and he was quoted by the New York Times in November, 2018, as taking a hard line approach:

In the hearing Thursday, a Navy prosecutor, Chris Czaplak, said the chief had done damage beyond murder.

“Does the public still believe we are the good guys, because Chief Gallagher decided to act like the monster the terrorists accuse us of being?” he said. “He handed ISIS propaganda manna from heaven. His actions are everything ISIS says we are.”

Those tables would turn dramatically before the case was over.

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In 2018, CAAF held that the statute of limitations for the offense of rape of an adult occurring between 1986 and 2006 was just five years. That decision, in United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page) (the #3 Military Justice Story of 2018), was an unexpected change to what was previously well-settled law.

CAAF revisited the topic in 2019, applying its decision in Mangahas (which involved an ongoing prosecution of an allegation dating to 1997) to three cases with convictions that violated the newly-clarified statute of limitations. The cases were United States v. Briggs, 78 M.J. 289 (C.A.A.F. Feb. 22, 2019) (CAAFlog case page); United States v. Collins, 78 M.J. 415 (C.A.A.F. Mar. 12, 2019) (sum. disp.) (CAAFlog case page); and United States v. Daniels, 79 M.J. 150 (C.A.A.F. Jul. 22, 2019) (sum. disp.) (noted here). CAAF heard oral argument and issued an authored opinion in only one of the cases (Briggs); it summarily applied that decision to the other two cases.

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The #3 Military Justice Story of 2019 is President Trump’s executive actions in military cases.

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Article 37 prohibits unlawfully influencing a court-martial and other actors within the military justice system. Enacted in 1950 and amended in 1968, the statute was unchanged for more than 50 years.

On December 20, 2019, President Trump signed the National Defense Authorization Act for Fiscal Year 2020. Section 531 of the legislation significantly rewrites Article 37. That action is the #4 Military Justice Story of 2019.

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Four years ago, in United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. 2015) (CAAFlog case page) (the #7 Military Justice Story of 2015), CAAF reversed an HIV-positive servicemember’s convictions of aggravated assault that were based on sexual activity without disclosure of HIV-positive status, because the court found that the chances of transmission of the virus were too remote to constitute a means likely to cause death or grievous bodily harm. But CAAF affirmed convictions of the lesser-included offense of assault consummated by a battery, reasoning that even though the participants had consented to the sexual acts, their consent was not “meaningful[ly] informed” because of their ignorance Gutierrez’s HIV-positive status. 74 M.J. at 68.

CAAF’s decision was puzzling in a number of ways, including the fact that consent was not in issue in Gutierrez’s trial (because a person cannot consent to an act likely to cause death or grievous bodily harm as a matter of law) and the fact that the requirement for meaningful informed consent was drawn from Canadian law, with then-Chief Judge Baker writing:

The offense of assault consummated by battery requires that the accused “did bodily harm.” MCM pt. IV, para. 54.b.(2). “‘Bodily harm’ means any offensive touching of another, however slight.” MCM pt. IV, para. 54.c.(1)(a). Here, Appellant’s conduct included an offensive touching to which his sexual partners did not provide meaningful informed consent. See R. v. Cuerrier, [1998] 2 S.C.R. 371, 372 (Can.) (“Without disclosure of HIV status there cannot be a true consent.”). He is therefore guilty of assault consummated by battery, and we affirm that offense as a lesser included offense of aggravated assault.

74 M.J. at 68. Yet while CAAF left open the possibility of a conviction of aggravated assault for having sex while HIV-positive (ruling only that the risk of transmission in Gutierrez’s case was too remote), its finding that the failure to disclose HIV-positive status forecloses any possibility of consent to the sexual activity created a different possibility: prosecution of such conduct as a sexual assault.

In 2019 that possibility became reality, as CAAF affirmed convictions of sexual assault by causing bodily harm (in the form of a non-consensual sexual act) that were based on the failure to disclose HIV-positive status to sexual partners, in United States v. Forbes, 78 M.J. 279 (C.A.A.F. Feb. 7, 2019) (CAAFlog case page).

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CAAF grants review in a tiny fraction of the cases in which it receives a petition for review. 11.9% of cases, to be precise, in fiscal year 2019 (52 grants in 438 petitions).

The #6 Military Justice Story of 2019 isn’t one of the grants. It’s one of the denials.

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In United States v. Voorhees, 79 M.J. 5 (C.A.A.F. Jun. 27, 2019) (CAAFlog case page), a unanimous CAAF held that the military prosecutor’s personal attacks on defense counsel, personal attacks on the accused, expressions of personal opinion, bolstering, and vouching, amounted to grievous error, but that the error was nevertheless harmless.

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As a general rule, law enforcement must obtain a search warrant – or, in the military, a search authorization – prior to conducting a search, and the warrant must be based on probable cause. If that doesn’t happen, the remedy is exclusion of any evidence discovered.

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The #9 Military Justice Story of 2019 is CAAF’s holding in United States v. Kohlbek, 78 M.J. 326 (C.A.A.F. Feb. 25, 2019) (CAAFlog case page).

The Military Rules of Evidence share a majority of provisions with the Federal Rules of Evidence, but the two sets of rules are not identical. In particular, the military rules contain provisions that are not in the federal rules. One of those is Mil. R. Evid. 707, which prohibits admission of any evidence related to a polygraph examination:

Rule 707. Polygraph examinations

(a) Prohibitions. Notwithstanding any other provision of law, the result of a polygraph examination, the polygraph examiner’s opinion, or any reference to an offer to take, failure to take, or taking of a polygraph examination is not admissible.

(b) Statements Made During a Polygraph Examination. This rule does not prohibit admission of an otherwise admissible statement made during a polygraph examination.

The rule survived scrutiny by the Supreme Court two decades ago, in United States v. Scheffer, 523 U.S. 303 (1998). CAAF had held that the rule was unconstitutional as applied to an accused who took the stand, denied committing the offense, was accused by the prosecution of lying, and wanted to use a favorable polygraph result to support his own credibility. The Supreme Court reversed CAAF’s decision, holding that the rule served a valid purpose and does not unconstitutionally limit an accused’s right to present a defense because the rule “did not preclude [Scheffer] from introducing any factual evidence,” rather it “merely [prohibited] introducing expert opinion testimony to bolster his own credibility.” 523 U.S. 317.

CAAF revisited the rule in Kohlbek, where the accused wanted to use the fact of a polygraph examination (and the circumstances surrounding its administration) as evidence to support his claim that his confession was false.

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It’s important to avoid reading too much into statistics. After all, “there are three kinds of lies: lies, damned lies, and statistics.” Proctor & Gamble Mfg. Co. v. Fisher, 449 U.S. 1115, 1118 (1981) (Rehnquist, J., dissenting from denial of certiorari).

But two sets of data released in 2019 are notable enough to be the #10 Military Justice Story of 2019: CAAF’s shrinking docket and a growing percentage of acquittals in courts-martial (especially acquittals for sex offenses).

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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.

Soon we will count down the top ten military justice stories of the year.

Please nominate the stories you think belong on the list, either in a comment to this post or by email to Zack@CAAFlog.com

The #1 Military Justice Story of 2018 is the Supreme Court’s decision in Ortiz v. United States, 585 U.S. __, 138 S. Ct. 2165 (Jun. 22, 2018) (link to slip op.).

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After Senior Chief (E-8) Barry was convicted of sexual assault in violation of Article 120(b), by a general court-martial composed of a military judge alone, and was sentenced to confinement for three years and a dishonorable discharge, the convening authority – Rear Admiral Patrick Lorge (who later retired) – approved the findings and sentence as adjudged. The Navy-Marine Corps CCA then remanded the case for a new action because Lorge’s Staff Judge Advocate (SJA) erroneously advised Lorge that he had no power to reverse the findings or reduce the sentence.

On remand, Lorge took a closer look at the case, and he developed concerns about the result of the trial. Barry was convicted of sexually assaulting a woman with whom he had an ongoing sexual relationship and under circumstances that raised the defenses of consent and mistake of fact as to consent. Lorge thought about reversing Barry’s conviction, but the SJA advised against it. So Lorge discussed the case with then-Rear Admiral Crawford who at the time was the Deputy Judge Advocate General (DJAG) of the Navy and with whom Lorge had previously served. Crawford later became the actual Judge Advocate General of the Navy (TJAG) and was promoted to Vice Admiral. As Lorge later recalled, Crawford advised him that approving the findings and sentence in Barry’s case was the appropriate course of action.

Ultimately, Lorge did again approve the findings and sentence, but he modified the automatic reduction in rank to retain Barry at E-7. Then – in an unusual move – Lorge added language to his convening authority’s action that questioned the fairness of the trial and the appropriateness of the sentence (though not the sufficiency of the evidence), and that encouraged the Navy-Marine Corps CCA to either remand the case for further proceedings or to disapprove the adjudged punitive discharge (but not to dismiss the charge outright). Lorge, of course, could have done any of those things, but didn’t.

And neither did the CCA. In a lengthy opinion written by then-Chief Judge Palmer, the Navy-Marine Corps CCA rejected numerous assignments of error and affirmed the findings and the sentence. United States v. Barry, No. 201500064 (N.M. Ct. Crim. App. Oct. 31, 2016) (link to slip op.). A few months after that, CAAF summarily affirmed the CCA’s decision. 76 M.J. 269 (C.A.A.F. Apr. 27, 2017).

Sixteen months later, however, CAAF reversed Barry’s conviction and dismissed the charge with prejudice, in United States v. Barry, 78 M.J. 70 (C.A.A.F. Sep. 5, 2018) (CAAFlog case page).

That incredible change of fortune (and the reasoning for it) is the #2 Military Justice Story of 2018.

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Article 43 of the UCMJ – like federal civil law – contains a baseline five-year statute of limitations. Congress added exceptions in 1986, including an exception for “any offense punishable by death.” At that time, the UCMJ allowed death as the maximum punishment for rape of a female (the statute didn’t protect men until 1992).

But there was a catch: the Supreme Court previously held that death is an unconstitutional punishment for the offense of rape of an adult woman, in Coker v. Georgia, 433 U.S. 584, 598 (1977). Presumably Congress knew that. CAAF certainly did, acknowledging in United States v. Hickson, 22 M.J. 146, 154 n.10 (C.M.A. 1986), that “in the absence of aggravating circumstances, [a death sentence] cannot be constitutionally inflicted [for rape of an adult].” Nevertheless, in Willenbring v. Neurauter, 48 M.J. 152, 180 (C.A.A.F. 1998), CAAF held that “rape is an ‘offense punishable by death’ for purposes of exempting it from the 5-year statute of limitations of Article 43(b)(1),” even if the absence of aggravating factors meant that a particular rape could never actually be punished by death. In other words, even though Congress only exempted offenses punishable by death from the five year statute of limitations, CAAF held that the exemption applied to a rape charge that was not actually punishable by death.

That changed in 2018 with CAAF’s decision in United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page). A unanimous CAAF reversed Willenbring and clarified that “where the death penalty could never be imposed for the offense charged, the offense is not punishable by death for purposes of Article 43, UCMJ.” 77 M.J. at 224-225 (emphases in original). That decision is the #3 Military Justice Story of 2018.

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