CAAFlog » Year in Review » Top Ten Stories of 2016

Later this week we will continue an annual tradition for the tenth year, counting down the Top Ten Military Justice Stories of 2017. But before we do that, let’s revisit last year’s list.

#10 was Ten Years of CAAFlog. September 22, 2016, was CAAFlog’s tenth birthday.

#9 was the Undead Article 10. CAAF’s unanimous decision in United States v. Cooley, 75 M.J. 247 (C.A.A.F. May. 6, 2016) (CAAFlog case page), reanimated the speedy trial right codified in Article 10. But the Article hasn’t shown any real signs of life since, as no appellant (to my knowledge) received relief under Article 10 since Cooley (the speedy trial issue in Mangahas is based on the Due Process clause of the Fifth Amendment).

#8 was the Sterling case and the Bergdahl case. These two notable cases shared a spot on our list. The Sterling case – where the contentious relationship between a Marine lance corporal (E-3) and her superiors resulted in a claim of religious freedom as justification for disobeying an order – ended when the Supreme Court denied certiorari on June 5, 2017. The Bergdahl case also ended this year when Sergeant Bergdahl elected trial by military judge alone, pleaded guilty without the benefit of a plea agreement, and received a sentence that includes a dishonorable discharge but no confinement.

#7 was the Thompson caseMarine Major Mark Thompson’s discussions with Washington Post reporter John Woodrow Cox produced an explosive 2016 feature article. In 2017 the Major pleaded guilty at a general court-martial (his second) in exchange for a chance at military retirement.

#6 was Article 6b. The nascent victims-rights provision earned a spot on our Top Ten list because of developments over the year, but the provision also had a busy 2017. You can read all of our Article 6b coverage here.

#5 was Deadlines. Missed deadlines, in particular. Two Air Force cases captured our attention, with defense deadlines missed in LaBella and a certification rejected as untimely in Williams.

#4 was Power to the CCAs! In five cases the Courts of Criminal Appeals flexed their muscles and prevailed.

#3 was United States v. Hills. CAAF’s blockbuster decision in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page), was followed by two significant trailers in 2017: United States v. Hukill, 76 M.J. 219 (C.A.A.F. May 2, 2017) (CAAFlog case page), and United States v. Guardado, 77 M.J. 90 (C.A.A.F. Dec. 12, 2017) (CAAFlog case page).

#2 was Military Death Row. While the military gallows have been quiet since 1961, there were notable developments in four military capital cases in 2016.

#1 was the Military Justice Act of 2016. The most significant changes to the UCMJ since the Military Justice Act of 1983 won’t take effect for another year, are still changing, and can’t really be studied without the now-overdue implementing regulations, but they were still the biggest military justice story of the year.

We’ll start the countdown to the #1 military justice story of 2017 later this week.

Our #1 Military Justice Story of 2016 is the Military Justice Act of 2016, passed as Division E of the National Defense Authorization Act for Fiscal Year 2017 and signed into law by President Obama on December 23, 2016.

A bookmarked PDF of the MJA is available here.

The Act was the product of the Military Justice Review Group, an internal DoD working group created by the Secretary of Defense to conduct a comprehensive review of the UCMJ. As an internal group the MJRG’s meetings and deliberations were closed to the public, and there was little subsequent public debate about the group’s 1,302 page report and legislative proposal. The House and Senate adopted the MJRG’s legislative proposal in differing degrees, and the final legislation was worked out in conference committee. It’s not everything the DoD wanted, but it’s pretty close, and it’s the most significant changes to the UCMJ since the Military Justice Act of 1983.

The changes won’t take effect until the President establishes an effective date that need only be sometime before January 1, 2019 (1st day of the 1st month two years after enactment). Yet while Congress gave the President up to two years to make the Act effective, it only allowed one year for revision of the Manual for Courts-Martial (perhaps in recognition of the fact that the White House has been painfully slow to act on draft executive orders forwarded by the Joint Service Committee).

Of course we’ll analyze the MJA in 2017, and we’ll keep reporting on developments in military justice for the eleventh year. Stay tuned.

The last person executed as the result of a court-martial was Army Private First Class John A. Bennett’s, whose convictions for the rape and attempted murder of a child led the Court of Military Appeals to observe that “seldom, if ever, have we been faced with a record which revealed a more vicious offense, or an accused who had less to entitle him to any consideration by the fact finders.” United States v. Bennett, 21 CMR 223, 225 (C.M.A. 1956).

Bennett was hanged in the boiler room of the United States Disciplinary Barracks at Fort Leavenworth on April 13, 1961. See Dwight H. Sullivan, The Last Line of Defense: Federal Habeas Review of Military Death Penalty Cases, 144 Mil. L. Rev. 1, 76 (1994) (citing James J. Fisher, A Soldier is Hanged, Kan. City Star, Apr. 13, 1961, at 7).

The military gallows have been quiet since then, but the military’s death row experienced a flurry of activity in 2016 with notable developments in four capital cases.

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Our #3 Military Justice Story of 2016 is CAAF’s blockbuster decision in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page).

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Power to the people was a popular chant in the 1960s. But the better chant for 2016 was: Power to the CCAs! In five cases the Courts of Criminal Appeals flexed their muscles and prevailed.

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Deadlines – particularly missed deadlines – were a big story in 2016.

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Many call Article 6b of the UCMJ the Military Crime Victims’ Rights Act, because its provisions generally mirror those of the federal Crime Victims’ Rights Act, 18 U.S.C. § 3771.

Enacted as part of the 2013 changes to the UCMJ, and then modified the following year, the scope and reach of Article 6b is still somewhat unsettled. While not limited to alleged victims of sex crimes, Article 6b is most often invoked in such cases because Congress mandated creation of Special Victims’ Counsel programs in 10 U.S.C. § 1044e and the statute only makes those services available to “the victim of an alleged sex related offense.” Those counsel are authorized to assist alleged victims in a far-reaching set of circumstances, and they have brought a measure of chaos to courts-martial by demanding discovery, filing motions, and occasionally even sitting at a third table during proceedings while avoiding the requirements placed on actual parties to the case.

But 2016 brought some clarity to Article 6b.

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Defense counsel often tell an accused that he has one job: Keep your mouth shut. Marine Major Mark Thompson’s discussions with Washington Post reporter John Woodrow Cox illustrate why.

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Two cases tie for the #8 spot on this year’s list: United States v. Sterling, 75 M.J. 407 (C.A.A.F. Aug. 10, 2016), cert. pet. filed, __ S.Ct. __ (Dec. 23, 2016) (CAAFlog case page), and the continuing saga of the court-martial prosecution of Army Sergeant Robert “Bowe” Bergdahl (CAAFlog news page).

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The speedy trial right codified in Article 10 was our #10 Military Justice Story of 2013 because – while the right was generally considered dead – developments that year had Article 10 rise up and give us its best Monty Python impression by asserting that it’s “not dead yet,” only to be silenced again by a sharply-divided CAAF in United States v. Wilson, 72 M.J. 347 (C.A.A.F. 2013) (CAAFlog case page).

But this year, in United States v. Cooley, 75 M.J. 247 (C.A.A.F. May. 6, 2016) (CAAFlog case page), CAAF affirmed the decision of the Coast Guard CCA that dismissed charges for violation of the Article 10 right to a speedy trial.

CAAF’s decision in Cooley was a fact-intensive application of the right and so I think it premature to declare Article 10 resurrected. But the UCMJ’s statutory speedy trial right is reanimated for sure, making it our #9 Military Justice Story of 2016.

It passed quietly, but September 22, 2016, was CAAFlog’s tenth birthday.

What a year it has been! It was particularly hard to pick the Top Ten Military Justice Stories of 2016, and this list of honorable mentions is as long as the top ten list itself.

Over the next few days we will continue an annual tradition for the ninth year, counting down the Top Ten Military Justice Stories of 2016. But before that, here are the stories that almost made the cut:

The April 5, 2016, confirmation of John E. Sparks as a CAAF judge. A retired Marine judge advocate who served as CAAF’s commissioner for nearly 15 years, Judge Sparks replaced then-Chief Judge Baker whose term expired on July 31, 2015.

The prosecution friendly changes to the Manual for Courts-Martial published on May 20, 2016. My post discussing these changes – including the weakening of the corroboration rule and limiting the exclusionary rule – was our most-viewed page in 2016.

• The government appeal in United States v. Henning, 75 M.J. 187 (C.A.A.F. Mar. 21, 2016) (CAAFlog case page), that unsuccessfully sought to use DNA evidence that implicated approximately 1 in 220 unrelated individuals in the general population.

• CAAF’s divided decision in United States v. Killion, 75 M.J. 209 (C.A.A.F. Apr. 19, 2016) (CAAFlog case page), holding that provoking speech must be measured by the audience that hears it.

• CAAF’s unanimous decision in United States v. Rogers, 75 M.J. 270 (C.A.A.F. May 16, 2016) (CAAFlog case page), holding that a member’s uncorrected misunderstanding about an intoxicated person’s ability to consent to sexual activity constituted bias.

• A deeply-divided CAAF’s decision in United States v. Martin, 75 M.J. 321 (C.A.A.F. Jun. 17, 2016) (CAAFlog case page), in which the majority found that defense counsel invited the erroneous admission of human lie detector testimony, but the dissenters condemned “grossly improper testimony from the victim’s husband explaining why he believed that his wife was telling the truth.”

• The rejection of an intuitive link between child enticement and possession of child pornography as sufficient to establish probable cause for a search in United States v. Hoffmann, 75 M.J. 120 (C.A.A.F. Feb. 18, 2016) (CAAFlog case page), and a similarly intuitive link in the still-pending case of United States v. Nieto, No. 16-0301/AR (CAAFlog case page).

The rhetorical gunfight between Secretary of Defense Ash Carter and the interest group Protect Our Defenders.

• The completion of four reports by the Judicial Proceedings Panel addressing: restitution and compensation for military adult sexual assaulta; Article 120; retaliation related to sexual assault; and statistical data regarding sexual assault prosecutions.

• Network issues that plagued CAAF and the Army and Air Force CCAs. CAAF’s website was offline in May, June, and August. The Air Force CCA’s website (which is on the same server as CAAF’s site) was similarly inaccessible, and was also inaccessible in December. The Army’s military justice websites were inaccessible to the public from early February (noted here) until early May.