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.