CAAFlog » Year in Review » Top Ten Stories of 2013

Next week we will continue an annual tradition for the seventh year, counting down the Top Ten Military Justice Stories of 2014. But before we do that, let’s revisit last year’s list.

#10 was Article 10, the speedy trial provision of the UCMJ. Writing for a sharply divided court, Judge Erdmann denied relief despite finding “several periods of unexplained or unjustified delay” in United States v. Wilson, 72 M.J. 347, 355 (C.A.A.F. 2013) (CAAFlog case page). Judge Erdmann’s majority opinion acknowledged that CAAF has “repeatedly stressed that Article 10 is a more stringent standard than the Sixth Amendment.” 72 M.J. at 352 n.2. But that proposition comes from United States v. Burton, 44 C.M.R. 166, 171 (C.M.A. 1971), and United States v. McCallister, 27 M.J. 138, 141 (C.M.A. 1988), and just like the disco music and big hair of the eras of Burton and McCallister, Article 10 is dead.

#9 was all about the Air Force Court of Criminal Appeals. We noticed things were getting bad at the Air Force court back in 2012, when the delay in resolving cases caused appellants to seek relief from CAAF and the news media to take an interest. “Going for guano crazy,” we thought, and the court made our list. But things got even worse in 2014, with CAAF’s invalidation of the appointment of a civilian official to the AFCCA by the Secretary of Defense. That appointment was ostensibly made to help clear the backlog of cases plaguing the Air Force court, but CAAF’s unanimous opinion in United States v. Janssen, 73 M.J. 221 (C.A.A.F. 2014) (CAAFlog case page), authored by Judge Stucky (himself a retired Air Force Colonel who served on the AFCCA), was just a touch ironic.

#8 was the confirmation of the appointment of Judge Ohlson to CAAF. After a long confirmation delay attributable to the politics of a divided government, Judge Ohlson become CAAF’s newest judge in 2013. Since then he’s participated in 25 cases, joining the majority in 22 of them. But it’s also clear that Judge Ohlson (formerly a career attorney in the Department of Justice) is not afraid to go it alone, as he confronted the other four judges with a strongly-worded dissent in United States v. Frey, writing that “the impropriety of [the trial counsel’s sentencing] argument is nothing short of breathtaking.” 73 M.J. 245, 253 (C.A.A.F. 2014) (CAAFlog case page).

#7 considered claims of unlawful command influence (UCI) by the civilian leadership of the armed forces. The President talked tough about military sexual assault prosecutions in an early May 2013 press conference, and a litigation bonanza ensued. Judges ruled, the Government pursued a number of interlocutory appeals, and the Secretary of Defense tried to clear the air. Then a majority of CAAF sidestepped the fundamental question of whether a civilian official can even commit UCI, with its decision in United States v. Hutchins, 72 M.J. 294 (C.A.A.F. 2013) (CAAFlog case page). Sadly, odds are good that CAAF will face this thorny issue again soon.

#6 focused on a specific allegation of UCI: that General Amos unlawfully influenced subordinates tasked with addressing a highly publicized video of Marines urinating on corpses in Afghanistan. The story had all the drama of a soap opera. But while the Commandant of the Marine Corps focused on the Marines associated with the video, many observers focused on the Commandant. Even after General Amos’ retirement in 2014, critics continue to question his qualifications and conduct, and defense counsel continue to assert that his actions unlawfully influenced a wide range of disciplinary processes.

#5 was the Wilkerson court-martial and its effects. Air Force Lieutenant General Craig Franklin exercised his authority under Article 60(c) to set aside the sexual assault conviction of Air Force Lieutenant Colonel James Wilkerson in 2013, and it was a military justice shot heard round the world. A frenzy of criticism erupted, and Congress ended the year by strictly curbing a convening authority’s previously unfettered ability to reduce the findings or sentence of a court-martial.

#4 was the Salyer case. When a prosecutor facing a mistrial suggests that the judge’s personal life might be a reason to disqualify him from the case, and then a supervisory prosecutor digs through the judge’s personnel record looking for material to use for that purpose, and then the officer-in-charge, also an attorney, participates in the effort to remove the judge, causing the judge to recuse himself, and the accused is convicted of possession of child pornography, but 21 months later an appellate court dismisses the case with prejudice because of the actions of the prosecutors and the officer-in-charge, that’s enough to qualify for a spot on our top ten list. But the Salyer case had even more.

#3 was the Manning case. The prosecution of Army Private First Class Bradley (a.k.a. Chelsea) Manning for leaking classified material was a long drama. CAAF almost got involved in 2013, but the court narrowly decided that it did not have jurisdiction to entertain a petition for greater public access to the trial proceedings in Center for Constitutional Rights, et al. v. United States and Colonel Lind, 72 M.J. 126 (C.A.A.F. 2013) (CAAFlog case page). Then, in a summertime trial, Manning was convicted of various offenses, some in accordance with pleas of guilty, and sentenced to confinement for 35 years and a dishonorable discharge.

#2 was the adjudged death sentence for Army Major Nidal Hasan, the Fort Hood shooter. Hasan became the sixth member of the military’s death row after firing his attorneys, representing himself, conceding that he was the shooter in his opening statement, and resting his case without presenting any evidence. A panel of thirteen members convicted Hasan of 13 specifications of premeditated murder and 32 specifications of attempted murder, and then deliberated for less than two hours before sentencing him to death.

Finally, the #1 Military Justice Story of 2013 was the changes to the UCMJ enacted as part of the National Defense Authorization Act for Fiscal Year 2014. It’s hard to say exactly when the issue of sexual assault became a crisis in the military, but 2013 was the year that this long-simmering issue boiled over. Congress rushed to pass a NDAA in the final weeks of 2013, and the President signed it into law exactly one year ago today. The legislation contained numerous military justice provisions, including some new Articles, many changes to old ones, and a significant number of obvious drafting errors. As the sun rose on 2014, we took stock of those new provisions and wondered what the year ahead had in store for us.

We’ll answer that question on Monday, when we count down the Top Ten Military Justice Stories of 2014.

It began a year ago, in January 2013, when Representative Jackie Speier (D-CA) introduced the “Protect Our Military Trainees Act” that, according to her press release, was “in response to the widespread sexual abuse by Air Force training instructors at a San Antonio Base,” and would “protect trainees from assault and sexual advances by instructors.”

Never mind that sexual harassment in the military is prohibited by innumerable regulations, or that coerced sexual activity “through the use or abuse of military position, rank, or authority” has met the statutory definition of a sexual assault since October 2007, or even that this definition was expanded in 2012 to include “a[ny] communication or action that is of sufficient consequence to cause a reasonable fear . . . [of] being subjected to the wrongful action contemplated by the communication or action.” Congress was getting curious about sexual assault in the military, and it didn’t like what it saw.

Actually, it really began a year before the Congresswoman’s proposal, when we encountered the “uninformed, dishonest, or both” propaganda film “The Invisible War,” and the politicization of the military’s response to sexual assaults became . And these days, “you never want a serious crisis to go to waste.”

So there was Congress, geared up to address the military sexual assault crisis, when the Wilkerson case (our #5 story of this year) threw gasoline onto the bonfire. An explosion of legislative proposals soon followed, with Representative Speier and Senator McCaskill each introducing bills to limit a commander’s post-trial powers, and the Senate Armed Services Committee conducting hearings on March 13 and June 4.

The House Armed Services Committee was also concerned, with leaders writing a letter in March to the recently-appointed Secretary of Defense, Chuck Hagel, on the topic. A veteran of Vietnam and a two-term Republican U.S. Senator from Nebraska, Secretary Hagel replied in April with his own proposal to limit the Article 60 authority of commanders, including “eliminating the discretion for a convening authority to change the findings of a court-martial, except for certain minor offenses that would not ordinarily warrant trial by court-martial.”

Senator Hagel’s April proposal was prophetic, but before the prophecy would be fulfilled, the Naval Academy checked in. In June we first noted a sexual assault allegation involving three male members of the Academy’s football team, an intoxicated female midshipman, and an off-campus house party in 2012. The allegation led to an Article 32 investigation that more closely resembled a three-ring-circus than a quasi-judicial proceeding. Press reports say that the midshipman was grilled for over 30 hours by defense counsel, with absurd questions such as “how wide she opened her mouth during oral sex and whether she had apologized to another midshipman with whom she had intercourse ‘for being a ho.'” Soon after, both the House and the Senate put Article 32 in their sights with proposals to limit the scope of the investigation and to change it from a full-blown investigation to a mere preliminary hearing.

So, about that prophecy. On December 26, 2013, it came true.

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If we based our Top 10 Military Justice Stories of 2013 on what our readers viewed, what would the list look like?  That thought occurred to me as we were haggling and disagreeing over the contributors Top 10 list.  So I thought I’d share with you, the  Top 10 Posts of 2013 (as ranked by number of readers that clicked or navigated to the post).

10.  This post on the Wilkerson case victim’s interview on the Today Show starts us off as the 10th most read post of 2013.

9.   And more Wilkerson case coverage comes in at number 9.

8.   And even more Wilkerson coverage makes the top 10, as Senators get involved.

7.   And in the middle of the Wilkerson firestorm, the Air Force SAPR office head’s arrest on alleged sexual assault charges made this post #7.

6.   And this post on media coverage of the DoD sexual assault report numbers rounds out the bottom five of our most read stories of 2013.

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Our #2 story of the year was the court-martial of Major Hasan, the Fort Hood shooter. We ended last year with CAAF granting a petition for extraordinary relief and removing the military judge and ordering a new one be assigned. Col Tara Osburn, USA, was then assigned. Major Hasan’s court-martial was last year’s number two story of 2012.

For all the tragedy of the victims and court-room drama leading up to the trial, the trial itself was relatively uneventful. The defense rested without putting on any evidence. Major Hasan acknowledged he was the shooter at the beginning of the trial. He was convicted of 13 specifications of premeditated murder and 32 specifications of attempted murder. He was sentenced to death after less than two hours of deliberations.

The trial was most notable for Major Hasan’s decision to represent himself. After firing his lawyers, the MJ granted his request to represent himself. His counsel, who continued to be available to assist him, described his actions as a “working towards the death penalty” according to the Washington Post.

I once did extensive research, attempting to look at all Article 118(1) & 118(4) cases preferred since 1984 to identify predictors of convening authorities’ decisions to refer cases capitally and on members awarding death as a punishment. We started with the thought that perhaps there were racial trends we could identify. What we found was the unsurprising conclusion that the number one predictor of capital referrals and capital sentences in Article 118(1) cases was multiple victims. That certainly held true in Major Hasan’s case.

Of course, Major Hasan will receive automatic review from the Army Court of Criminal Appeals. As this CNN report points out, the reversal rate for death-penalty cases in the military on direct review is very high. This report cites a 82% reversal. These numbers are since 1984, when President Reagan implemented R.C.M. 1004.

One issue that lurks in the case highlights some of the paternalism that still lingers in the military-justice system. Major Hasan attempted to plead guilty, but his plea was rejected by the MJ. Article 45(b), UCMJ prohibits a guilty plea to a capital offense. In theory, this denied Major Hasan the mitigating effects of a guilty plea. Is it remotely conceivable that ACCA or CAAF will rule Article 45(b), UCMJ unconstitutional and reverse? Probably not, but if they did, it would probably make our top ten list in future years.

Number three this year looks a lot like #3 last year, the PFC Manning case has been a media darling, earning multiple spots on our top ten list. But alas Bradley Manning’s time in the spotlight has run its course. His case finally made its way to court-martial and resulted in a sentence of confinement for 35 years, report here. While his supporters may bring the case back to life when the appellate process starts to drag on, and it will, for now we may have seen the end of 24/7 Manning coverage around the globe. Here’s a recap of this year’s festivities.

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Our #4 military justice story of the year involves five Marines: an accused, a military judge, two prosecutors, and an officer-in-charge.

The accused, Corporal Salyer, was tried in November, 2011, for wrongful possession and distribution of child pornography. At the beginning of the trial the military judge, Lieutenant Colonel Mori, made an odd ruling about the definition of child pornography. He determined that because of the way the case was charged, the definition of child pornography would include an image of a person under the age of 16 but not of a person under the age of 18. The trial counsel, Captain Harley Maya, argued against this interpretation, but she was overruled. Captain Maya then gave an opening statement to the members in which she referred to an item that Lieutenant Colonel Mori had excluded from evidence.

Lieutenant Colonel Mori threatened to declare a mistrial if the Government couldn’t find another way to admit the excluded item, and Captain Maya went for help. She met with Captain Jesse Schweig, the “military justice officer” (a supervisory position). Here’s CAAF’s description of what happened next:

According to Capt Schweig, Capt Maya told him of rumors that “Lieutenant Colonel Mori may have had a young wife.” This prompted Capt Schweig to access LtCol Mori’s official personnel record. . . . having retrieved the information from LtCol Mori’s personnel record, Capt Schweig went to see LtCol Mannle, Officer-in-Charge (OIC) of the base Legal Services Center. They discussed the military judge’s decision to use age sixteen vice age eighteen to define a minor for purposes of the charged child pornography offenses.

United States v. Salyer, 72 M.J. 415, 420 (C.A.A.F. 2013) (link to slip op.) (CAAFlog case page). The OIC then called Lieutenant Colonel Mori’s judicial supervisor to “let him know that a significant event was about to happen,” while Captain Maya conducted a voir dire of the judge during which “she asked the military judge how old his wife was when they married.” Salyer, 72 M.J. at 421. Lieutenant Colonel Mori answered that his wife was 17 when they married. But Captain Maya already knew this. She then offered material Captain Schweig obtained from the judge’s personnel record as an exhibit for the trial record.

The next day, Lieutenant Colonel Mori recused himself from the case with a written ruling that cited “LtCol Mannle’s phone call to [his judicial superior] and the trial counsel’s reference to his wife’s age at the time of their marriage.” Salyer, 72 M.J. at 421. A new judge was assigned, and Corporal Salyer was convicted of the possession offense and sentenced to confinement for two years, total forfeitures, reduction to E-1, and a bad-conduct discharge.

We learned about the case a year later, when the Navy-Marine Corps Court of Criminal Appeals (NMCCA) issued an opinion affirming the findings and sentence. The NMCCA was unfazed by a prosecutor rooting around in a military judge’s personnel record, and the court asserted an “innocent purpose behind the call” to the judge’s supervisor. United States v. Salyer, No. 201200145, slip op. at 9 (N-M.Ct.Crim.App. Oct. 23, 2012) (link to slip op.).

But CAAF felt differently, and on August 2, 2013, it reversed Corporal Salyer’s conviction and dismissed the case with prejudice. In a 34 page opinion authored by Chief Judge Baker, a majority of the court concluded that, “the unprofessional actions of the Government improperly succeeded in getting the military judge to recuse himself from Appellant’s court-martial.” Salyer, 72 M.J. at 428.

When a prosecutor facing a mistrial suggests that the judge’s personal life might be a reason to disqualify him from the case, and then a supervisory prosecutor digs through the judge’s personnel record looking for material to use for that purpose, and then the officer-in-charge, also an attorney, participates in the effort to remove the judge, causing the judge to recuse himself, and the accused is sentenced to two years, but 21 months later an appellate court throws out the case because of the actions of the prosecutors and the officer-in-charge, that might be enough to qualify for a spot on our top ten list.

But that isn’t the end of the story of this case.

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2013 was a year that was dominated by the issue of sexual assault and the military justice system’s handling of it.  Last year’s top story is where much of this focus began.  The horrible Invisible War “documentary” and its producers portrayed the military justice system as unable to handle sexual assault cases and advocated taking the decision in sexual assault cases out of the chain of command.  And then came the Wilkerson decision.

On Nov. 5, 2012, LTC James Wilkerson was sentenced to a dismissal and one year confinement for the sexual assault of a house guest while stationed with his wife at Aviano AFB.  On February 27, 2013, the convening authority in the case, Lieutenant General Craig Franklin exercised his authority under Art. 60, UCMJ and set aside the members’ findings and sentence in the case.

On the heels of The Invisible War and its supporters decrying the chain of command as a good ol’ boy network, General Franklin’s action sent them into a frenzy.  Senators and congressmen immediately weighed in on the general’s action calling it “simply unacceptable and rais[ing] serious concerns about the military justice system as a whole.”  Senators Boxer and Shaheen called on SecDef Hagel to, amusingly, “take immediate steps to restrict Convening Authorities from unilaterally dismissing military court decisions.” It was an amusing request because, of course, Congress gave CAs the power to set aside findings and sentences in Article 60(c), so it was really up to the Senators to change the law.

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The cases that are better known for how the bodies of insurgents in Afghanistan were desecrated, by urinating on them, marks return to our top ten for the area of battlefield military justice.  In 2011 the Fifth Stryker Brigade cases came in at #3 and in 2010 the debate over military justice in a combat environment topped our list. Last year’s top ten had nary a single entrant from America’s overseas conflicts. But thanks to a Marine Corps sniper platoon and a helmet mounted camera the subject returns.

But this version of battlefield justice has the added bonus of a soap opera and intrigue after preferral and within the judge advocate community–which made it perfect fodder for us. Not only did we have several cases prosecuting Marines for the incident, here and here, but allegations of UCI by the Commandant of the Marine Corps surfaced . . . and that’s when all the fun began.  There were allegations that General Amos exerted unlawful command influence over the convening authorities; charges were dismissed against a Marine Corps judge advocate for his role; and another Marine Corps judge advocate (Maj. Weirick) filed an IG complaint, and here, to reveal additional alleged misconduct at HQMC . . . and then the fun began.  Maj. Weirick’s supervisors then allegedly retaliated against him when he sent an email to one of the lawyers involved in the alleged misconduct to “encourage” him to come forward. The case continues to generate bad publicity for the Marine Corps and the Marine Corps legal community, here, and will probably continue to be into 2014.

Between the high visibility military justice cases and the high profile involvement of uniformed judge advocates, this was a no brainer for our Top 10.  While the rest of the list is not surprising, it is hard to argue with the Top 5.

While 2012 saw military courts grapple with issues of unlawful command influence by senior military leaders, 2013 upped the ante with several cases of alleged UCI by senior civilian leaders, including POTUS himself. The first big story broke on May 7, 2013 when, in response to new DoD numbers on sexual misconduct in the military and several high-profile military sex assault stories in the media, POTUS stated:

The bottom line is: I have no tolerance for this…I expect consequences…So I don’t just want more speeches or awareness programs or training, but ultimately folks look the other way. If we find out somebody’s engaging in this, they’ve got to be held accountable – prosecuted, stripped of their positions, court martialed, fired, dishonorably discharged. Period.”

These comments quickly led to UCI motions in sexual assault cases across the country, covered here. More interestingly though, it gave rise to UCI-related filings at the service courts of appeal for the Air Force, Navy and Army, although not necessarily in the way one might expect. Specifically, of the three writ appeals that received coverage on CAAFlog, two of them were filed by the Government.

The first case, United States v. Eller, Misc. No. 2013-15 (A.F. Ct. Crim. Ap.. Jun. 21, 2013), covered here, had potential for analysis on some really great issues. The Government filed a writ appeal to a ruling by the MJ granting a defense implied bias challenge to a panel member. It’s not entirely clear, but the Government seemed to think that the judge granted the challenge based on the member’s knowledge of the President’s remarks, as well as for her personal views on consent. Additionally, there was a separate issue, and maybe more interesting one, of whether the Government could even bring the writ appeal, since it would be outside of the Government’s Article 62, UCMJ appellate rights.

The end result was the Government looking a little silly after it derailed its own court-martial over a member challenge just to send up a trial balloon on the issue of POTUS UCI. AFCCA, in the spirit of the season, pulled out their Red Ryder carbine-action, 200 shot range model air rifle with a compass in the stock and this thing which tells time, and promptly dropped that trial balloon by affirming the MJ’s ruling based on the member’s statements about her views of consent.

The ACCA also declined to shed any light on the propriety or impropriety of POTUS’ comments, when it denied BGEN Sinclair’s request for a stay of his pending GCM to consider his writ on POTUS’ comments. See here and here.

Our last hope for some clarity on this issue from the service courts of appeal is with the NMCCA in the as-yet unresolved case of United States v. Johnson – or as it is currently titled at the court United States v. Marcus Fulton, No. 201300233. This case also comes in the form of a government writ appeal, after CDR Fulton ruled that, due to POTUS’ comments, a punitive discharge could not be adjudged against an accused, should he be convicted. See here.

Fortunately, the NMCCA will not be completely in the dark as to how to handle this case. In the middle of the POTUS’ comments controversy, CAAF delivered its opinion in United States v. Hutchins, No. 12-0408/MC (CAAFlog case page here). The majority reversed and set aside the findings and sentence on the granted issue of whether Sgt Hutchins’ Fifth Amendment rights were violated. Therefore, the majority did not reach the other granted issue of whether post-trial comments about the case by SECNAV constituted UCI. However, that issue did receive thorough treatment in Judge Ryan’s concurrence and Judge Baker’s dissent. While the two judges come to different conclusions about whether SECNAV’s comments constituted UCI, they both seemed to be in agreement that the standard framework for analyzing UCI claims against military commanders can and should be applied to civilian leadership.

It should also be noted that, likely in response to negative press on POTUS’ comments and the potential effects on courts-martial, the SECDEF did issue a retraction/clarification of sorts regarding military justice. (Covered here). My math may be wrong on this, but last time I checked SECDEF < POTUS, so it’s not clear that such a statement would fix the POTUS’ comments problem.

2014 could be an exciting year for this area of military law. Is the Government entitled to file writ appeals? Did the POTUS’ comments constitute UCI? If so, did the SECDEF’s memo cure it? All these questions and more could soon be answered (although I’m not really holding my breath). What would be refreshing though is if somewhere along the way there was a strong judicial statement, along the lines of the one from Judge Ryan in Hutchins, directly addressing the sexual assault mania that is currently animating the Beltway.

I think everyone would agree that sexual assault is a heinous crime that has no place in the military and society for that matter. I think most people would also agree that alleged victims of crimes should be treated with dignity and respect. But, I would also hope that most people could agree that those accused of crimes should be treated with similar dignity and respect and that they are entitled to a fair process. Not a process where the thumb of authority is pressed on the scales justice, whether that thumb is placed intentionally or unintentionally.


On 14 September 2011, the White House announced President Obama’s first appointment to the Court of Appeals for the Armed Forces: career Justice Department attorney Kevin Ohlson. The nomination seemed relatively uncontroversial … but it would languish for more than two years before finally winning Senate confirmation.

Judge Ohlson’s resume was, on its face, impeccable: graduate of the University of Virginia School of Law; former U.S. Army officer and Gulf War veteran; Bronze Star recipient; former Assistant United States Attorney. His career in DOJ included service as chief of staff to then-Deputy Attorney General Eric Holder in the Clinton Administration, and a rise through the ranks in the Bush years, culminating in service as Director of the Executive Office of Immigration Review. From 2009-2011, he was chief of staff to now-Attorney General Holder.

His nomination, however, soon became sidetracked by questions concerning the so-called “gun-walking” operations meant to track the movement and use of firearms by drug runners and organized crime. These operations, which began in 2006, culminated in Operation Fast and Furious, an ambitious and failed program criticized sharply by congressional Republicans. Although Judge Ohlson disclaimed any involvement in Fast and Furious, his nomination stalled and was returned without action to the White House at the end of the 112th Congress.

His rocky road to the bench arguably was simply a part of the ongoing Washington melodrama involving partisan opposition to Presidential nominees, complicated by his long-standing ties to Attorney General Holder, a perennial bête noir of the political right. Despite the initial failure of the Senate to act on his nomination, the President renominated Judge Ohlson in 2013. This time his nomination met with no significant opposition and he was confirmed by a voice vote of the Senate on October 16, 2013. Judge Ohlson’s confirmation came more than a month before the rule change that effectively eliminated the filibuster for lower-court judicial nominees.

With the addition of Judge Ohlson, CAAF returns to its full complement of five judges. It remains to be seen what kind of jurist he will be; but one incident from his days in the Justice Department may offer a clue. As head of DOJ’s Professional Misconduct Review unit, he overruled a 2012 staff recommendation that prosecutors who failed to turn over exculpatory evidence deserved no sanction, ordering both prosecutors suspended without pay. That decision (although subsequently reversed by the MSPB) suggests Judge Ohlson may not be reluctant to call the government to account when dealing with the rights of the accused.

Number Nine in our annual countdown is a double-play by the U.S. Air Force Court of Criminal Appeals. Proving again that the military-justice system can be one that generates self-inflicted wounds, AFCCA has managed to create two different systemic challenges.

We begin with Judge Soybel. His name is attached to the issue of the proper appointment of civilians to a service CCA under Article 66(a). Apparently, Judge Soybel retired from the U.S. Air Force a number of years ago. Post-retirement, he went to work for the Air Force as a civilian. Along the way, he was put on the appellate bench. But how was he “put” on the bench? Was he appointed? Was it a valid appointment?

Defense counsel challenged his appointment and moved to vacate decisions where he was on the AFCCA panel. Our very own liege, Phil Cave, was among the defense counsel raising this issue. (Here and here). CAAF cares and began to remand Soybel cases. SECDEF wrote a letter. He appointed Judge Soybel to AFCCA under 5 U.S.C. § 3101. In one case, United States v. Janssen, on 11 September 2013, AFCCA denied the defense motion to vacate on the appointment grounds. CAAF, on the other hand, was busy in September 2013, issuing over ten of these sorts of orders:

In light of Ryder v. United States, 515 U.S. 177 (1995) and United States v. Carpenter, 37 M.J. 291 (C.M.A. 1993), vacated, 515 U.S. 1138 (1995), the decision of the United States Air Force Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for further review under Article 66, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866 (2006), by a properly appointed Court of Criminal Appeals. Thereafter, Article 67(a), UCMJ, 10 U.S.C. § 867(a) (2006) will apply. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

(Daily Journal for September 2013).

Just on Christmas Eve, Zack noted that CAAF has taken the Janssen case and set it for expedited briefing. (Here). More on that concept in a minute, but CAAF’s order included the great, preemptive line: “Requests for enlargements of time to file pleadings will not be favorably received.” (Here). Code 45 alum of the Diaz era may recall a classic enlargement in the Ashby case taken by one of the Marine majors. It was one of the best pieces of legal writing ever to grace NMCCA’s steps, but I digress.

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Article 10 of the Uniform Code of Military Justice includes this requirement for a speedy trial:

When any person subject to this chapter is placed in arrest or confinement prior to trial, immediate steps shall be taken to inform him of the specific wrong of which he is accused and to try him or to dismiss the charges and release him.

Caselaw says that this language “imposes on the Government a more stringent speedy-trial standard than that of the Sixth Amendment.” But history suggests otherwise, and Article 10’s demand for “immediate steps” really just means that the Government must act with “reasonable diligence.” From time to time, military judges find Article 10 speedy trial violations. Time and again, the military appellate courts reverse. The prevailing wisdom is that Article 10 is dead.

But this wisdom was challenged in 2013 by a case that had Article 10 rise up and give us its best Monty Python impression by asserting that it’s “not dead yet.” In United States v. Wilson, 72 M.J. 347 (C.A.A.F. 2013) (CAAFlog case page), CAAF considered a 174 day pretrial delay that the military judge found at times “improper and to reflect a lack of proper diligence in a case involving a confined accused,” “not justified,” and “unusual and unjustified.” Wilson, 72 M.J. at 352. But the judge denied the appellant relief, the CCA denied the appellant relief, and then a sharply-divided CAAF denied the appellant relief, concluding:

The record reflects 115 days of delay attributable to the Government. While the Government explained much of the delay, there were several periods of unexplained or unjustified delay. Those delays appear to be the result of inattention and neglect and although they weigh against the Government, they do not weigh as heavily against the Government as they would if there was a deliberate effort to delay the case.

Wilson, 72 M.J. at 355. Despite vigorous dissents from Chief Judge Baker and Senior Judge Cox, CAAF blotted the ink from Article 10’s obituary this year, earning the Article a spot on our top ten list.

The possibility that Article 10 will rise from the dead next year is slim. CAAF is considering a speedy trial issue in United States v. Danylo, No. 13-0570/AF (CAAFlog case page), but the less “stringent” speedy trial guarantee of the Sixth Amendment is more likely to be a source of relief to that appellant than the practically mythical guarantee of Article 10.

For the sixth year in a row we will count down the top ten military justice stories of the past twelve months. Lists from prior years are filed under “Annual Reports” at the top of the page, in the “Year in Review” section.

Any such list is bound to be at least a little bit controversial, but this year’s list practically has controversy as its theme.

2013 was a year of controversy for the military justice system. The politicization of the military’s response to sexual assault, our #1 story of 2012, continued this year with hearings, proposals, and in the last days of the year, significant changes to the UCMJ. Various high-profile cases caught and kept the media’s attention, with one of them adding another name to the short roster of the military’s death row. And while many court-martial prosecutions were successful, others were undone by a whistleblower, a prosecutor with access to a judge’s personnel records, and a commander who didn’t think the evidence added up.

But here at CAAFlog we’re not afraid of controversy, and over then next few days we’ll review the biggest stories (and controversies) of 2013.