CAAF will hear oral argument in the Air Force case of United States v. Prasad, No. 19-0412/AF (CAAFlog case page), on Monday, March 16, 2020, at 9:30 a.m. The court granted review of a single issue involving a Hills error:

Whether the Air Force Court erred in its first review of Appellant’s case by affirming the findings of guilt for Specifications 1 and 3 of Charge 1 when it found prejudicial error as a result of a Hills violation.

Airman First Class (E-3) Prasad was convicted of three sexual offenses involving two alleged victims, and the Air Force CCA issued two opinions in the case. In the first opinion (available here), a three-judge panel of the CCA reversed one of the convictions because the military judge improperly instructed the members that they could use charged offenses for propensity purposes (the Hills error). However, two of the three judges found the error harmless with respect to the other two convictions (both involving the same alleged victim). The panel then remanded the case with a rehearing authorized. The convening authority elected to conduct only a sentence rehearing, after which the case returned to the CCA for further review. Upon further review, a slightly different three-judge panel (consisting of two of the original three judges) declined to reconsider the first decision and affirmed the new sentence, in an opinion available here.

The granted issue questions whether the Hills error requires reversal of the remaining convictions. Put differently, if the evidence of guilt supporting those convictions is strong enough then the convictions will be affirmed despite the Hills error.

Prasad’s argument focuses on the standard of review in a situation (like this) involving constitutional error, characterizing “the Government’s case []as anything but overwhelming” and insisting that “but for the improper propensity evidence and erroneous instruction, the panel members, in considering only the evidence related to A1C KF, may have harbored reasonable doubt of Appellant’s guilt and found him not guilty.” App. Br. at 12.

The Government Division responds with the argument that the evidence supporting the affirmed convictions “was overwhelming” because:

In addition to the victim’s credible testimony, Appellant corroborated her version of events through a text message exchange that he had with her. The victim directly confronted Appellant about having “fingered her” even after he heard her say no and Appellant admitted to both hearing her say no and to digitally penetrating her after that expression of non-consent.

Gov’t Div. Br. at 6. The Government Division also argues that propensity evidence used to disprove the existence of mistake of fact as to consent is not improper:

Moreover, for Specifications 1 and 3 of Charge I, the only plausible defense was a mistake of fact defense. Given the text messages between Appellant and KF, the elements of penetration and consent were not in issue. The only real issue in controversy was whether Appellant had an honest and reasonable mistake of fact that KF consented to the sexual act and sexual contact. The panel members could not have considered propensity evidence in an improper way in this particular case. The only way in which they could have realistically considered the evidence of other sexual misconduct was to determine that Appellant had an “absence of mistake” which, in fact, would have been an appropriate, non-propensity use of the evidence. See United States v. Hyppolite, 79 M.J. 161 (C.A.A.F. 2019).

. . . At most, the members would have used evidence of other sexual offenses to discount Appellant’s mistake of fact defense, which is a lawful, nonpropensity use of the evidence. This further diminishes any possibility that erroneous propensity instruction prejudiced Appellant. However, as argued above, the evidence in this case already weighed so strongly against a mistake of fact, that the member did not even need to use to the other charged acts to tip the balance to find Appellant guilty.

Gov’t Div. Br. at 20-21. In Hyppolite (CAAFlog case page), a majority of CAAF found no error in a military judge’s Mil. R. Evid. 404(b) ruling allowing the prosecution to use charged offenses as evidence that the accused acted pursuant to a common plan or scheme.

Prasad replies to the Government’s argument by focusing on the trial counsel’s repeated use of the word propensity in closing argument. The trial counsel’s closing argument included the statement:

it’s propensity evidence. And that’s the lens through which you have to view this entire court. He has a propensity not to stop when someone says, no. Five women told him, no, and he kept going. [] The law realizes that people who engage in sexual offenses may have a propensity to commit that crime again and again and again what is what happened here.

Reply Br. at 5 (quoting record) (modification omission in original). And the statement:

you can consider the fact that he doesn’t listen. That he ignores, no.

Reply Br. at 5 (quoting record). Considering that, Prasad argues:

The trial counsel’s reliance on the word “propensity” belies the Government’s suggestion that this argument was no different than “an appropriate, non-propensity use of the evidence” under Mil. R. Evid. 404(b), pursuant to United States v. Hyppolite, 79 M.J. 161 (C.A.A.F. 2019) (Gov. Br. at 20-21). First, “propensity” is the complete opposite of “non-propensity.” Second, the panel members were not instructed to consider the evidence for an “appropriate, nonpropensity purpose.” Third, this argument reveals the Government’s true motive for using Mil. R. Evid. 404(b) with respect to charged misconduct in sexual assault cases—to admit evidence of and argue “propensity” through the back door of Mil. R. Evid. 404(b) because the front door of Mil. R. Evid. 413 has been firmly and permanently closed. The Government’s argument on this point is a red flag that should cause this Court to reconsider its opinion in Hyppolite.

Reply Br. at 6.

Case Links:
AFCCA opinion
AFCCA opinion after sentence rehearing
Blog post: CAAF grants review
Appellant’s brief
Appellee’s (Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview

Today CAAF issued this guidance:

Per the Court’s standing guidance, if the Office of Personnel Management (http://www.opm.gov) announces that federal offices in the Washington, DC, area are closed, the Court will also be closed. In that eventuality, pleadings due on any closure days will be considered timely if filed on the next day the Court is open.

Specifically in view of public health concerns and the current COVID-19 pandemic, if federal offices in Washington remain open, by order of the Chief Judge, the following guidance and order pertains:

The hearings scheduled for 16 and 17 March, 2020, will be held as scheduled. In accordance with our constitutional obligation to maintain open courts, the Court will not, absent exceptional circumstances, prevent anyone from entering the hearing. With that said, individuals who do not have a professional need to be present are requested to seriously consider whether the public interest would be better served by remaining away from the hearings. Consistent with past practice, and absent any unforeseen technical difficulty, the audio recording of these hearings will be posted to the Court’s website the same day.

(emphasis in original).

Audio of the recent oral argument at the Air Force CCA in United States v. Garcia, No. 2019-07, on February 26, 2020, is available on the CCA’s website (here) and on the CAAFlog oral argument audio podcast.

Significant military justice event this week: CAAF’s 2020 Continuing Legal Education and Training Program is this week, on Tuesday and Wednesday and Thursday, March 11-12, at the American University Washington College of Law. The registration form is available here and the schedule of events is available here.

This week at SCOTUS: The petitioner in Voorhees filed this reply to the Solicitor General’s opposition to the cert. petition. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking five cases:

This week at CAAF: The next scheduled oral arguments at CAAF are on March 16, 2020

This week at the ACCA: The next scheduled oral argument at the Army CCA is on May 1, 2020.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on April 24, 2020.

This week at the CGCCA: The Coast Guard CCA’s website shows no scheduled oral arguments.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on March 25, 2020.

CAAF decided the Army case of United States v. Finch, __ M.J. __, No. 19-0298/AR (CAAFlog case page) (link to slip op.), on March 3, 2020. Explaining that a prior consistent statement offered under the new Mil. R. Evid. 801(d)(1)(B)(ii) “must actually be relevant to rehabilitate the witness’s credibility on the basis on which he or she was attacked,” CAAF finds that the military judge in this case erred but that the error was harmless.

Judge Ohlson writes for a unanimous court.

CAAF granted review to determine:

Whether the military judge erred in admitting over defense objection the video-recorded interview of AH by CID because it was not a prior consistent statement under Mil.R.Evid. 801(d)(1)(B).

Specialist (E-4) Finch was convicted by a general court-martial, composed of a military judge alone, of violation of a general regulation, sexual abuse of a child, and three specifications of rape of a child, in violation of Articles 92 and 120b. He was sentenced to confinement for six years, reduction to E-1, and a dishonorable discharge.

Finch’s convictions largely hinged on the testimony of his stepdaughter, who said that he sexually assaulted her on two occasions while they were camping. Her allegations were investigated by the Army Criminal Investigation Command (CID), and she gave CID a videotaped interview. That interview was admitted at trial, in its entirety, over defense objection, after the military judge ruled that it was a prior consistent statement under Mil. R. Evid. 801(d)(1)(B).

Mil. R. Evid. 801(d)(1)(B) – which is identical to Fed. R. Evid. 801(d)(1)(B) – provides situations where a prior consistent statement by a witness is not hearsay. If a witness testifies about something in court, the rule allows a consistent, prior (out-of-court) statement by that same witness to be admitted as proof of the truth of the thing said on both occasions (as opposed to a more limited admissibility, such as merely to prove that a prior statement was made). The rule has two parts that allow admission of prior statements either:

(i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or

(ii) to rehabilitate the declarant’s credibility as a witness when attacked on another ground

Mil. R. Evid. 801(d)(1)(B). The first part is a longstanding rule that CAAF has considered many times, including just last term in United States v. Frost, 79 M.J. 104 (C.A.AF. Jul. 30, 2019) (CAAFlog case page). But the second part is a new rule that was added to the federal rules in 2014 (discussed here), and incorporated into the military rules in 2016 (noted here).

Military prosecutors took a broad view of the new rule, seeking admission of prior statements whenever a witness was impeached by the defense. The Army CCA’s opinion in this case rejected that view, requiring that a prior consistent statement actually address the specific manner in which the witness was attacked. United States v. Finch, 78 M.J. 781 (A. Ct. Crim. App. 2019) (link to slip op.). The NMCCA reached the same conclusion in United States v. Norwood, 79 M.J. 644 (N-M. Ct. Crim. App. Aug. 9, 2019), pet. for rev. granted, __ M.J. __ (C.A.A.F. Jan 21, 2020) (discussed here). CAAF now endorses those holdings, with Judge Ohlson outlining a five-part test for admissibility of a prior consistent statement under the new rule:

for a prior consistent statement to be admissible under M.R.E. 801(d)(1)(B)(ii), it must satisfy the following:

(1) the declarant of the out-of-court statement must testify,

(2) the declarant must be subject to cross-examination about the prior statement,

(3) the statement must be consistent with the declarant’s testimony,

(4) the declarant’s credibility as a witness must have been “attacked on another ground” other than the ones listed in M.R.E. 801(d)(1)(B)(i), and

(5) the prior consistent statement must actually be relevant to rehabilitate the witness’s credibility on the basis on which he or she was attacked.

Slip op. at 12 (paragraphing added).

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CAAF decided the Army case of United States v. Hennis, __ M.J. __, No. 17-0263/AR (CAAFlog case page) (link to slip op.), on February 28, 2020. Hennis is a capital case and CAAF’s review is mandatory. Reviewing 40 issues raised by Hennis’ defense counsel and three issues raised by Hennis personally – but discussing only the five issues on which the court granted oral argument – CAAF affirms the findings, the sentence to death, and the decision of the Army CCA.

Chief Judge Stucky writes for a unanimous court.

The court-martial conviction and sentencing of Master Sergeant (E-8) Hennis, U.S. Army (Retired) was our #2 military justice story of 2010. That year a general court-martial convicted Hennis of three specifications of premeditated murder and sentenced him to death. The case involved the gruesome rape and murder of Kathryn Eastburn, the wife of an Air Force captain who was out of town on temporary duty, and also the murder of the Eastburn’s two daughters, all of which occurred 25 years earlier, in 1985.

Hennis was tried three times for those crimes: twice by North Carolina and then finally by a court-martial. The first trial resulted in a conviction and death sentence, but it was reversed by the North Carolina Supreme Court in 1988. A retrial resulted in an acquittal in 1989, after which Hennis was reinstated in the Army and eventually transferred to the retired list where – like every other regular retiree – he remained subject to the UCMJ. Advances in DNA during the following years allowed investigators to determine that sperm found in the body of the murdered woman came from Hennis, and he was recalled to active duty in 2006, tried by court-martial for the murders, convicted, and again sentenced to death. The Army CCA affirmed the findings and sentence in 2016 (discussed here), 75 M.J. 796.

Hennis’ brief to CAAF raised dozens of challenges to his convictions and capital sentence, but CAAF heard oral argument on only five issues:

I. Whether a break in Appellant’s service foreclosed the exercise of court-martial jurisdiction.

II. Whether the charges arose in the Armed Forces, and fell within the subject matter jurisdiction of a capital court-martial.

III. Whether the court-martial had personal jurisdiction over Appellant.

IV. Whether the military judge denied appellant a meaningful opportunity to present a complete defense.

V. Whether the military judge abused his discretion in restricting defense counsel’s voir dire and in denying defense challenges for cause.

The court concludes that none of the issues in this case – not those heard at oral argument nor any of the others – provides a basis for relief, and it affirms Hennis’ convictions and sentence to death. As a result, Hennis remains one of only four people on military death row. The others are Gray and Akbar (whose convictions and sentence were affirmed by CAAF), and Hasan (whose case is still pending initial review by the Army CCA).

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This week at SCOTUS: The cert. petition in Kelly is scheduled for conference on March 20. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking five cases:

This week at CAAF: The next scheduled oral arguments at CAAF are on March 16, 2020

This week at the ACCA: The Army CCA’s website shows no scheduled oral arguments.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

This week at the CGCCA: The Coast Guard CCA’s website shows no scheduled oral arguments.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on March 25, 2020.

Five years ago, in United States v. Torres, 74 M.J. 154 (C.A.A.F. May 12, 2015) (CAAFlog case page), CAAF grappled with the defense of automatism, which it defined as:

“[a]ction or conduct occurring without will, purpose, or reasoned intention,” “behavior carried out in a state of unconsciousness or mental dissociation without full awareness,” and “[t]he physical and mental state of a person who, though capable of action, is not conscious of his or her actions.” Black’s Law Dictionary 160 (10th ed. 2014). “Automatism” is sometimes referred to as an “‘unconsciousness defense.'” United States v. Axelson, 65 M.J. 501, 515 (A. Ct. Crim. App. 2007) (quoting Eunice A. Eichelberger, Annotation, Automatism or Unconsciousness as Defense to Criminal Charge, 27 A.L.R.4th 1067, § 2 (1984)).

74 M.J. at 156 n.3. Distinguishing that defense from a defense of lack of mental responsibility (where the accused has the burden to prove that he was suffering from a metal disease or defect), CAAF found error in a military judge’s failure to give a tailored automatism instruction to the members that would have forced the prosecution to disprove the defense (and thereby prove that the appellant’s conduct was voluntary). The court also adopted the acus reus approach to automatism, holding that in future cases “where the issue of automatism has been reasonably raised by the evidence, a military judge should instruct the panel that automatism may serve to negate the actus reus of a criminal offense.” 74 M.J. 158.

An article published last year in the Military Law Review titled Automatism: A complete yet imperfect defense, by Marine Corps Captain Brendan J. McKenna, 227 Mil. L. Rev. 46 (2019) (available here), reviews CAAF’s decision in Torres and the results of a Marine court-martial in which the defense of automatism was employed (unsuccessfully) shortly after the Torres opinion was issued. The article also considers limits to the automatism defense, including the possibility that raising the defense might lead to an unprivileged R.C.M. 706 inquiry into the accused’s mental capacity or responsibility, and to a charge of fraudulent enlistment.

Read more »

Audio of the oral argument at the Navy-Marine Corps CCA in United States v. Simpson, No. 201800268, on February 6, 2020, is available on the CCA’s website (here) and on the CAAFlog oral argument audio podcast.

CAAF decided the Army case of United States v. Avery, __ M.J. __, No. 19-0259/AR (CAAFlog case page) (link to slip op.), on February 27, 2020. The court finds that the enumerated Article 134 offense of indecent language (with any person, but with a greater maximum punishment when a child is involved) is not preempted by Article 120b(c) (2012), which criminalizes lewd acts with a child (a legal term of art that includes indecent communications), because there is no indication that Congress intended that result and because the Article 134 offense covers conduct that Article 120b(c) does not. Accordingly, the conviction and the decision of the Army CCA are affirmed.

Judge Ryan writes for a unanimous court.

CAAF granted review to determine:

Whether the specification of Charge II, alleging the communication of indecent language to a child in violation of Article 134, UCMJ, was preempted by Article 120b.

Specialist (E-4) Avery was convicted of communicating indecent language to a child under the age of 16 in violation of Article 134. The conviction was based on vulgar Facebook communications with the twelve year-old stepdaughter of another soldier. Avery’s defense counsel did not object to the charge at trial, but on appeal Avery claimed that when Congress enacted the offense of sexual abuse of a child (in Article 120b(c) (2012)), it intended that offense to apply to all indecent communications involving children and thereby preempted application of the Article 134 offense of indecent language in situations involving children.

Article 134 broadly prohibits “all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital.” The President enumerates offenses under Article 134 by exercising his Article 56 power to set maximum punishments. The enumerated offense of indecent language criminalizes oral and written communications – without regard to the age of the recipient or any criminal intent – that are indecent and either prejudicial to good order and discipline or of a nature to bring discredit upon the armed forces. The maximum punishment authorized by the President for such acts includes confinement for six months and a bad-conduct discharge, but if the recipient of the communication is a child under the age of 16 then the President authorizes a greater punishment including confinement for two years and a dishonorable discharge.

While the President enumerates offenses under Article 134, the preemption doctrine limits Article 134’s otherwise “expansive scope [by] prohibiting ‘application of Article 134 to conduct covered by Articles 80 through 132.'” Slip op. at 4 (quoting Manual for Courts-Martial, United States pt. IV, para. 60.c.(5)(a) (2012 ed.) (moved to para. 91.c.(5)(a) in the 2019 ed.)). But CAAF applies the preemption doctrine narrowly, with two exacting requirements. First, Congress must have intended to limit prosecution in a certain area to just those specific offenses covered by Articles 80-132. Second, the Article 134 offense at issue must be “composed of a residuum of elements of a specific [Article 80-132] offense.” Slip op. at 4 (quoting United States v. Curry, 35 M.J. 359, 360–61 (C.M.A. 1992)).

Neither of those requirements is satisfied with respect to the Article 134 offense of indecent language and the Article 120b(c) offense of sexual abuse of a child.

Read more »

Article 91 criminalizes insubordinate conduct toward a warrant officer, noncommissioned officer, or petty officer. The Manual for Courts-Martial description of the statute is “to ensure obedience to their lawful orders, and to protect them from violence, insult, or disrespect.” MCM, Part IV, ¶17.c.(1). But the statute requires that the order violated be lawful or that the officer otherwise be in the execution of his office for the protection to apply. Accordingly, a warrant officer, noncommissioned officer, or petty officer may divest himself of the protections of his office by conduct that abandons his rank. See, generally, United States v. Diggs, 52 M.J. 251, 256 (C.A.A.F. 2000).

A recent published decision by the Navy-Marine Corps CCA in United States v. Addison, __ M.J. __, No. 201800272 (N-M. Ct. Crim. App. Feb. 11 2020) (link to slip op.), considers one such situation, involving a Marine corporal (E-4) and gunnery sergeant (E-7). The corporal – who eventually pleaded guilty to attempted escape, willful disobedience of a superior commissioned officer, disrespect toward a noncommissioned officer, and three specifications of wrongful use of a controlled substance – pleaded guilty to disrespect based on the following exchange with the gunnery sergeant:

MJ: Now, on those same dates, did you use certain language to wit: “F[***]k you, Gunny,” towards Gunnery Sergeant [J.R.M.]?

ACC: I did, your Honor.

MJ: Please explain the circumstances.

ACC: We were arguing about something with the checkout process, and he said, “I can tell that you just want to say ‘F[***]k me.’” And so he said, “Say ‘F[***]k you, Gunny.’” And we went back and forth for a few times, but I eventually gave in and said, “F[‘***]k you, Gunny.”

Slip op. at 2 (quoting record) (marks in original). A three-judge panel of the CCA finds that the gunnery sergeant’s invitation of the disrespectful words “was a clear departure from the standards required of those in leadership position and it invited a disrespectful response from Appellant.” Slip op. at 5.

Because the circumstances of the case “reasonably raised an affirmative defense of abandonment of office,” the panel holds that the military judge erred in failing to resolve the inconsistency between that defense and the plea of guilty, and so it reverses the conviction of that offense. Slip op. 5. Nevertheless, it affirms the sentence as adjudged.

C-SPAN video of the DAC-IPAD video from February 14, 2020, is available at the following links:

Part 1

Part 2

The main event during the meeting was a panel of retired military judges providing their perspectives (and answering questions) about military sexual assault cases, including conviction and acquittal rates.

Some (of many) interesting parts include this moment when Colonel Glass discussed the relative inexperience of military prosecutors, this moment when Colonel Moore discussed the virtues of generalization within the judge advocate communities, and this public comment by the alleged victim in the Grazioplene case.

CAAF’s 2020 Continuing Legal Education and Training Program will occur on March 11-12 at the American University Washington College of Law. The registration form is available here.

The schedule of events is available here and includes the following lectures:

Wednesday, March 11, 2020

8:00 a.m. Bolsheviks, Polar Bears, and Military Law: Judge Advocates in Russia in World War I
Frederic L. Borch, III
U.S. Army Judge Advocate General’s Corps, Regimental Historian and Archivist, The Judge Advocate General’s Legal Center and School; Colonel, U.S. Army, Judge Advocate General’s Corps (Retired)

9:15 a.m. Not Bergdahl but Bergdoll: The Court‐Martial of an Infamous Deserter; and Can a Leopard Change Its Spots? The Court‐Martial of Captain Jeffrey Zander‐‐and More
Frederic Borch

10:30 a.m. Unlawful Command Influence, Recent Changes to Article 37
Lieutenant Colonel Rebecca L. Farrell
U.S. Army Judge Advocate General’s Corps
Chair, Criminal Law Department, The Judge Advocate General’s Legal Center and School

1:00 p.m. Rethinking Feres: Granting Access to Justice for Service Members
Andrew Popper
Ann Loeb Bronfman Distinguished Professor of Law and Government, American University Washington College of Law

2:15 p.m. U.S. Court of Appeals for Veterans Claims Updates
Invited: CAVC Judge
U.S. Court of Appeals for Veterans Claims

3:30 p.m. Developments Concerning Sex Offender Registration
Elizabeth L. “Liz” Lippy
Associate Director of the Trial Advocacy Program, American University Washington College of Law

Thursday, March 12, 2020

8:00 a.m. The Coming Transformation of the Delivery of Legal Services
Thomas D. Morgan
Oppenheim Professor of Antitrust and Trade Regulation Law Emeritus, The George Washington University

9:15 a.m. The Court‐Martial of Paul Revere
Michael M. Greenburg, Attorney at Law, Law Office of Michael M. Greenburg, P.C.

10:30 a.m. Standing up the U.S. Space Force and Legal Issues in Space
Thomas E. Ayers
General Counsel of the U.S. Department of the Air Force; Major General, U.S. Army Judge Advocate General’s Corps (Retired)

1:00 p.m. The Air Force Special Victim’s Counsel Program at Five Years
Invited: Colonel Jennifer A. “Jenn” Clay
U.S. Air Force Judge Advocate General’s Corps; Chief, Air Force Legal Operations Agency, Special Victim’s Counsel Division

2:15 p.m. Ethics‐Ethical Considerations: Electronic Communications and the Use of Social Media
Martin Mitchell
Commissioner to the Honorable Judge Kevin A. Ohlson, U.S. Court of Appeals for the Armed Forces; Colonel, U.S. Air Force, Judge Advocate General’s Corps (Retired)

3:30 p.m. Ethics‐Personal Relationships within Ethical Standards
Martin Mitchell

This week at SCOTUS: The Solicitor General filed this brief in opposition to the cert. petition in Voorhees, and this brief in opposition to the cert. petition in McDonald. The respondents (servicemembers) in Briggs filed their merits brief (available here), and the Court also received amicus briefs in support of the respondents from the Army Appellate Defense Division (available here), and the National Association of Criminal Defense Lawyers (available here). Finally the Solicitor General waived the right to respond to the cert. petition in Kelly.

I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking five cases:

This week at CAAF: The next scheduled oral arguments at CAAF are on March 16, 2020

This week at the ACCA: The Army CCA’s website shows no scheduled oral arguments.

This week at the AFCCA: The Air Force CCA will hear oral argument in United States v. Garcia, No. 2019-07, on Wednesday, February 26, 2020, at 3 p.m. No additional information is available on the CCA’s website.

This week at the CGCCA: The Coast Guard CCA’s website shows no scheduled oral arguments.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on March 25, 2020.

Last year the Army Lawyer published The Special Victim Counsel Program at Five Years: An Overview of Its Origins and Development, by Colonel Louis P. Yob, the program manager for the Army’s Special Victims Counsel (SVC) Program. The piece is available here.

Colonel Yob tracks the development of the SVC program from the release of the uninformed, dishonest, or both movie The Invisible War in 2012, to CAAF’s decision in LRM v. Kastenberg, 72 M.J. 364 (C.A.A.F. 2013) (CAAFlog case page), and the enactment of 10 U.S.C. § 1044e in 2013.

The Army established the SVC Program Manager (PM) and Program Manager’s Office (PMO), led by an active duty Colonel (O-6) and staffed by a mix of active and reserve personnel. The PM determined “that each SVC should carry no more than twenty-five clients at a given time,” and so requested authorization for 48 SVC positions. 47 such positions were ultimately approved and created. Yet SVC attorneys faced initial resistance from other participants in the military justice process. Specifically:

many trial counsel expressed concern that the attorney-client relationship of the SVC and the victim impaired a trial counsel’s ability to build his or her own relationship with a victim. Many defense counsel viewed SVCs as yet another government attorney to oppose them. Some trial judges initially limited the role of SVCs and scheduled trial dates without regard to SVC availability. Also, Criminal Investigation Command (CID) investigators did not appreciate reduced access to victims for immediate questioning, or having limitations on victim interviews due to objections raised on behalf of the victim by their SVC. This sometimes led to acrimony between CID offices and SVCs, which included a number of complaints being lodged by both sides against the other for perceived wrongs.

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