Maurer on MaurerA Logic of Military Justice? by Dan Maurer is about to be published in 53 Texas Tech L. Rev. 669 (2021). We have invited him to provide the following preview. As with earlier articles (here, here), this article is part of a larger project to encourage the military and lawmakers to reflect seriously on why the military does "justice" the way it does -- why do its idiosyncratic elements (e.g., certain commanders having certain kinds of investigative, prosecutorial, and judicial-like authorities; non-random, hand-picked panels, non-unanimous guilty verdicts) remain in place, while other elements (and other peer nations' MJ systems) continue to "civilianize?" This article first describes Ortiz v. United States, a relatively recent Supreme Court case in which the justices seem to have inadvertently recast the "purpose" of military justice, contradicting its earlier rationale (from, e.g., Parker v. Levy; Orloff v. Willoughby; Burns v. Wilson; and implicit in Solorio) for supporting this unique code of military criminal law. The “purpose” of military justice – as a separate code of criminal prohibitions for a “separate community – used to be about enforcing disciplined obedience to commands in support of mission accomplishment (from the tactical to the national strategic scale). This "national security" rationale allowed the Court to defer to Congress's determination (usually) about the subject matter jurisdiction (except of course for O’Callahan’s now-defunct and unworkable “service connection test”) and various rights/due process established in the Code. The most recent description of military justice in Ortiz, however (and I think partially correctly), says that any value the commander gets from this criminal justice system is incidental to the bigger picture: not national security, but "justice." This case should force us to stop and rethink the claims we (Congress and the military services) make in both defending and criticizing military justice's substance, procedure, consequences, and mistakes. The article's second part undertakes to unpack every expressed and tacit claim in the "logic" underpinning American military justice. Not only does it make them explicit for the first time and all in one place, the article assesses their strength by labeling them as "presumptions," "assumptions," "speculations," "facts," or "normative judgments." Sneak preview of the conclusion: arguments explaining and justifying the current form of military justice rest far more on speculations and assumptions than on facts, and the conclusory "normative judgments" we offer to the public and ourselves are based too often on anecdotal, context-free, "evidence," and result in an argument that looks too much like: "just trust us, we're the professionals." This is a perversion of actual professional expertise and undermines the always fragile “civil-military relationship.” As such, it is not just a matter of reforming (or not) a criminal code; it is also pushing up against what it means to have effective “civilian control” over the military. As a military of volunteers, in non-partisan service to the country and in defense of the Constitution, we must do a better job defining, defending, and reacting to progressive reform, especially if the Code's purpose is doing "justice," just like every other criminal code and system. This article is meant to help, or at least encourage both critics and supporters to be more nuanced, careful, and refined in their arguments. LTC Dan Maurer.Currently Assistant Professor of Law, United States Military Academy at West Point and a Fellow, Modern War Institute. Court of Appeals for the Armed ForcesUnited States v. Hernandez. Appellant was convicted MJA of wrongful use of cocaine. On appeal, AFCCA found the MJ abused his discretion in not suppressing evidence--"Appellee unsuccessfully argued [at trial] that the results of the urinalysis test should be suppressed because the search authorization used to obtain his urine was based on material misstatements and omissions by the law enforcement officers." CAAF (5-0) reverses AFCCA finding there was good faith--the court presumed without deciding no probable cause was given the magistrate when seekinga search authorization. In so holding, the court passed over a waiver issue with the motion to suppress. It is noteworthy that an E-5 was providing the information to the magistrate to get a warrant not an OSI agent. *** CAAF is powering into the end of session with another trailer clean-up. No. 21-0135/AF. U.S. v. D'Andre M. Johnson. CCA 39676. On further consideration of the granted issues (81 M.J. __ (C.A.A.F. April 14, 2021)), and in view of United States v. Willman, 81 M.J. __ (C.A.A.F. July 21, 2021), we note that in its sentence appropriateness review, the United States Air Force Court of Criminal Appeals erred in failing to consider additional information about Appellant's post-trial confinement conditions even though Appellant had raised the matter in his clemency response to the convening authority. Appellate courts may "consider affidavits and gather additional facts through a DuBay hearing when doing so is necessary for resolving issues raised by materials in the record." United States v. Jessie, 79 M.J. 437, 444 (C.A.A.F. 2020). In United States v. Tyler, 81 M.J. 108 (C.A.A.F. 2021), we held that either party may comment on properly admitted unsworn victim statements. Therefore, the military judge did not plainly err in permitting trial counsel to present argument based on the victim's unsworn statement. Accordingly, it is ordered that the decision of the United States Air Force Court of Criminal Appeals is affirmed as to findings but reversed as to sentence, and 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, 10 U.S.C. § 866. Thereafter, Article 67, UCMJ, 10 U.S.C. § 867, shall apply. No. 21-0216/NA. U.S. v. Joseph R. Nelson. CCA 201900239. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is granted on the following issue: ARTICLE 31(d), UCMJ REQUIRES SUPPRESSION OF STATEMENTS TAKEN IN VIOLATION OF ARTICLE 31(b). AFTER THE MILITARY JUDGE DETERMINED THAT NCIS AGENTS VIOLATED ARTICLE 31(b) BECAUSE THEIR RIGHTS ADVISEMENT DID NOT PROPERLY ORIENT APPELLANT TO THE NATURE OF THE SUSPECTED MISCONDUCT, DID THE MILITARY JUDGE ERR BY ONLY SUPPRESSING THE STATEMENT AS IT RELATED TO ONE SPECIFIC OFFENSE, BUT THEN ALLOWING THE EVIDENCE TO BE ADMITTED FOR THE REMAINDER OF THE OFFENSES? Air Force Court of Criminal AppealsUnited States v. (not Cab) Calloway. The continuing saga of AF difficulties in post-trial processing continues with the court again remanding to correct the second post-trial action, The new action, coupled with the absence of a new court-martial order that correctly reflects the results of the courtmartial, is not only erroneous and ultra vires, but confusing and misleading. We find remand for corrective action appropriate. United States v. (not Spud) Murphy. In this GP case, Appellant was convicted of using marijuana and using marijuana many times and wrongful possession of marijuana; for which he got 30 days, a BCD, RIR-E2, and forf. United States v. (not Ralph) Nuzzo, III. Appellant was sentenced, by a panel, to 24 months, BCD, and stuff, because he pleaded guilty to "strangling a fellow service member, biting her, and striking her in the face." There was no PTA. The court finds harmless error in the CA failure to take action on the sentence for a pre-2019 case. There are five issues.
United States v. (not Hans Gustav) Steinert. In this GP case, Appellant was sentenced to two-years, a BCD, and stuff, including a reprimand.He pled guilty to five assault and batteries, an orders violation, and the sex offenses were withdrawn. The case is remanded for post-trial error correction and his four other issues deferred until a second visit. United States v. (not Chalky) White. In this NG MJA case Appellant was convicted of aggravated sexual contact and twice using indecent language. He was sentenced to four-months, a BCD, RIR, and a reprimand. His seven issues will await another visit to AFCCA because an eighth got him a remand for post-trial errors. Possible appellate casesUnited States v. SFC R.RN. Charges of violating orders, reckless endangerment, communicating threats, and obstruction of justice have been referred to court-martial. The Article 32, UCMJ, preliminary hearing ended in May. Arraignment is yet to be scheduled. Interestingly, his attorney told Stars & Stripes that “While I can’t go into the facts contained within those investigations yet, I think it’s fair to say that SFC N. was not even in the country at the time two of the charges are alleged to have occurred[.]” United States v. MSG C.M.M. A former Fort Bragg command sergeant major who has since been demoted and allegedly forged documents to retire in the midst of an Army investigation now faces new charges. A trial is set to begin Oct. 11 on the new charges of desertion, failure to obey a regulation, extortion, impeding a sexual investigation and revenge porn, according to an Army trial docket and charge sheet. Worth the readBarnett-Mayotte, Cal, Beyond Strickland Prejudice: Weaver, Batson, and Procedural Default (June 8, 2021). University of Pennsylvania Law Review, Forthcoming, Vol. 170, Forthcoming , Available at SSRN: https://ssrn.com/abstract=3862860. Cheers, Phil CavePhil and I break it down for military.com's lay audience here (this will be basic stuff for CAAFlog readers): Can Service Members Fight Taking a Mandatory COVID Vaccine? Did we miss anything big? Re-reading Sterling made me think that CAAF's exhaustion requirement for the RFRA substantiality prong seems strange analytically. But, as CAAF notes, a number of circuit courts also impose such a requirement. Brenner FissellEIC Ed. notes.
The Supreme Court will not interfere with Indiana University’s vaccine mandate. On Thursday evening, Justice Amy Coney Barrett turned down a request from a group of Indiana University students to block the school’s requirement that students be vaccinated against the virus. Barrett, who is responsible for emergency appeals from Indiana, denied the students’ request without comment, without seeking a response from the state, and without referring the request to the full court for a vote – suggesting that she and the other justices did not regard it as a particularly close case. More from SCOTUSblog here.
"Appeals — Summary Dispositions
No. 21-0130/AF. U.S. v. Clayton W. Turner. CCA 39706. On further consideration of the granted issue (81 M.J. __ (C.A.A.F. March 15, 2021)), and in view of United States v. Willman, 81 M.J. __ (C.A.A.F. July 21, 2021), accordingly, it is ordered that the decision of the United States Air Force Court of Criminal Appeals is hereby affirmed. No. 21-0135/AF. U.S. v. D'Andre M. Johnson. CCA 39676. On further consideration of the granted issues (81 M.J. __ (C.A.A.F. April 14, 2021)), and in view of United States v. Willman, 81 M.J. __ (C.A.A.F. July 21, 2021), we note that in its sentence appropriateness review, the United States Air Force Court of Criminal Appeals erred in failing to consider additional information about Appellant's post-trial confinement conditions even though Appellant had raised the matter in his clemency response to the convening authority. Appellate courts may "consider affidavits and gather additional facts through a DuBay hearing when doing so is necessary for resolving issues raised by materials in the record." United States v. Jessie, 79 M.J. 437, 444 (C.A.A.F. 2020). In United States v. Tyler, 81 M.J. 108 (C.A.A.F. 2021), we held that either party may comment on properly admitted unsworn victim statements. Therefore, the military judge did not plainly err in permitting trial counsel to present argument based on the victim's unsworn statement. Accordingly, it is ordered that the decision of the United States Air Force Court of Criminal Appeals is affirmed as to findings but reversed as to sentence, and 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, 10 U.S.C. § 866. Thereafter, Article 67, UCMJ, 10 U.S.C. § 867, shall apply. No. 21-0146/AF. U.S. v. Cory J. Frantz. CCA 39657. On further consideration of the granted issue (81 M.J. __ (C.A.A.F. March 23, 2021)), and in view of United States v. Willman, 81 M.J. __ (C.A.A.F. July 21, 2021), accordingly, it is ordered that the decision of the United States Air Force Court of Criminal Appeals is affirmed. No. 21-0243/AF. U.S. v. Derrick O. Williams. CCA 39746. On further consideration of the granted issue (81 M.J. __ (C.A.A.F. June 25, 2021)), and in view of United States v. Willman, 81 M.J. __ (C.A.A.F. July 21, 2021), accordingly, it is ordered that the decision of the United States Air Force Court of Criminal Appeals is affirmed. Order Granting Petition for Review No. 21-0216/NA. U.S. v. Joseph R. Nelson. CCA 201900239. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is granted on the following issue: ARTICLE 31(d), UCMJ REQUIRES SUPPRESSION OF STATEMENTS TAKEN IN VIOLATION OF ARTICLE 31(b). AFTER THE MILITARY JUDGE DETERMINED THAT NCIS AGENTS VIOLATED ARTICLE 31(b) BECAUSE THEIR RIGHTS ADVISEMENT DID NOT PROPERLY ORIENT APPELLANT TO THE NATURE OF THE SUSPECTED MISCONDUCT, DID THE MILITARY JUDGE ERR BY ONLY SUPPRESSING THE STATEMENT AS IT RELATED TO ONE SPECIFIC OFFENSE, BUT THEN ALLOWING THE EVIDENCE TO BE ADMITTED FOR THE REMAINDER OF THE OFFENSES? Briefs will be filed under Rule 25." Army Times reports here that the Army has appointed its first civilian CID director.
See? Civilianization isn't so bad. I recently applied to be admitted to NMCCA. The process was seamless, contactless, free, and quick. I received a nice looking certificate today: Brenner FissellEIC The Navy JAG Facebook page just posted this update: On July 2, after an academically rigorous and stressful three weeks, over fifty of our military's most accomplished and credentialed attorneys and justice practitioners graduated from the 64th Military Judges course at the Judge Advocate General's Legal Center & School. These graduates are now the most visible symbols - and central figures - of a military justice system. Their time of the bench will bea mong the most challenging and rewarding assignments they will ever undertake. In the face of staunch criticism from very high places, they will make the tough calls, tune out the noise, and fiercely guard their independence. They will be the very definition of principled counsel. Ultimately, as military judges, they will ensure our military justice system is just, efficient, and effective because lives literally depend on it. Bravo Zulu! Good luck to the new military judges. Frank RosenblattThis case has come before this Court for the second time. See United States v. Navarette, 79 M.J. 123 (C.A.A.F. 2019). During the lengthy appellate process, Appellant has sought a Rule for Courts-Martial [R.C.M.] 706 inquiry to investigate his mental status. Originally and upon remand from this Court, the United States Army Court of Criminal Appeals (CCA) found that Appellant failed to raise a substantial question as to his mental condition. We disagree and reverse. Writes Senior Judge Stucky for three members of the court. Judges Maggs and Hardy dissented.
Another way servicemembers convicted at court-martial receive less than their civilian counterparts convicted in state or federal court, whom they signed up to defend? Hubbard is an Innocence Project Act (18 U.S. Code sec. 3600) case brought by a military prisoner. The panel affirmed the district court’s dismissal for lack of subject-matter jurisdiction of a petition brought by U.S. Army Private Clifford Hubbard seeking DNA testing under the Innocence Protection Act (“IPA”). Add this to Congress's to-do list along with unanimous verdicts and direct access to the Supreme Court? Cheers, Phil CaveFrom the NewspeakNewsBureau and a hat-tip to GMJR. Thompson gives leeway to military law enforcement to not gather certain statements for tactical reasons. In Thompson, the underage victim had trouble remembering all of her interactions with the accused, so she wrote them down on a timeline. The interviewing CID agent deliberately did not gather this writing. The victim eventually lost it. After her trial testimony, defense counsel moved to strike under R.C.M. 914 because the government could not produce the timeline. The trial judge denied the motion, as did the ACCA. R.C.M. 914 implements the Jencks Act, 18 U.S.C. § 3500, requiring that, upon motion, a pertinent statement of a witness that is in the government's possession be disclosed after his or her testimony. Thompson argued to C.A.A.F. that the government constructively possessed the statement because CID had access to it and "consciously avoided collecting it." C.A.A.F. had not previously considered this constructive possession argument. The Court was unconvinced, ruling that there was no R.C.M. 914 violation because the written statement was never in the possession of the United States. Chief Judge Ohlson concurred in the result because the statement was not lost in bad faith. But he disagreed that the statement was not in the government's possession since it had been offered to government agents and pertained to the witnesses' testimony. See generally United States v. Stellato, 74 M.J. 473 (C.A.A.F. 2015); United States v. Muwwakkil, 74 M.J. 187 (C.A.A.F. 2015). Chief Judge Ohlson's "grave concern" is that the majority approach will incentivize government agents "to avoid the consequences of R.C.M. 914’s clear language and intent simply by [purposely] failing to take adequate steps to preserve statements." Muwwakkil, 74 MJ at 192. As stated in Appellant’s brief, a holding such as the majority’s will "encourage law enforcement personnel to intentionally avoid collecting relevant evidence for fear it might not fit the government’s theory of the case and [then] they [will] have to disclose [any exculpatory] evidence to the defense." Frank RosenblattYou don't see this every day!
"Order Granting Petition for Review No. 21-0235/AR. U.S. v. David C. Tate. CCA 20180477. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue: WHETHER THE TRANSCRIPT OF APPELLANT'S TRIAL IS SUBSTANTIALLY VERBATIM. Briefs will be filed under Rule 25." I expect we all are getting questions about refusing the COVID-19 vaccination should the President sign a waiver IAW 10 U.S. Code 1107. (Ed. update: It seems an order is on its way for September.) There is discussion in the ether that the COVID vaccines are not "experimental," rather it is the difference between their being authorized and approved. Regardles, while trying to figure out the enforceability of the order to be COVID-19 vaccinated, several items may be of interest or use.
Cheers, Phil CaveAir Force Court of Criminal AppealsUnited States v. Brown. This is an Order, likely one of several to come, post-CAAF's decision to vacate the decision in Brubaker-Escobar. *** United States v. Wermuth. Appellant pleaded guilty to possession and distribution of CP; for which the MJ sentenced him to three-years, a DD, and RIR. On appeal he raises four issues.
In evaluating the convening authority’s decision memorandum, I adhere to the approach I have used in prior cases including United States v. Aumont, No. ACM 39673, 2020 CCA LEXIS 416, at *29–37 (A.F. Ct. Crim. App. 20 Nov. 2020) (en banc) (unpub. op.) (Lewis, S.J., concurring in part and in the result), rev. granted, ___ M.J. ___, No. 21-0126, 2021 CAAF LEXIS 389 (C.A.A.F. 4 Mar. 2021), and United States v. Finco, No. ACM S32603, 2020 CCA LEXIS 246, at *13–16 (A.F. Ct. Crim. App. 27 Jul. 2020) (unpub. op.). *** United States v. Washington. Appellant was "Dismissed" because members convicted him of abusive sexual contact, conduct unbecoming, and five instances of fraternization (but acquitted of three other Article 133 specifications). Appellant raises three errors.
Senior Judge POSCH delivered the opinion of the court. Judge RICHARDSON filed a separate opinion concurring in part, dissenting in part, and dissenting in the result in part. Judge MEGINLEY filed a separate opinion concurring in part, dissenting in part, and dissenting in the result in part. A useful discussion of fraternization and a reminder to the government. I'll let you read the other 72 pages of opinions. The fact that officers are held to a higher standard of conduct does not diminish the Prosecution’s burden. United States v. Appel, 31 M.J. 314, 320 (C.M.A. 1990) (“[A] custom is not a subject for judicial notice . . . . With respect to the Air Force custom against fraternization . . . no one can say . . . that the extent of this custom is so clear as to dispense with the requirement of proof.”). ***
United States v. Bailey. GP to indecent liberties with a child abusive sexual contact with a child, sexual abuse of a child, rape of a child, and obstruction of justice; for which the MJ sentenced him to 25-years, DD, TF, RIR, and a reprimand. There are two issues on appeal.
The court did find that it was error to allow the TC to read the VIS. It was not prejudicial for several reasons including "minimal additional value in light of the already admitted evidence of Appellant’s serious crimes." As to the content of the VIS, the court recognized that the MJ orally stated some limitations on what or how he would consider the statement . ![]()
The Committee on Rules of Practice and Procedure Judicial Conference of the United States has issued a call for public comment to various proposed rules changes. Go to p. 299 for the proposed evidence changes (unless you are a CCA or CAAF and want to see if there's anything useful in the rules of appellate procedure). Of particular note are proposed changes to Fed. R. Evid. 106, 615, and 702--rules we use in courts-martial. As you know, should any federal rule be changed, the change automatically changes the Mil. R. Evid, unless the President directs otherwise. See Mil. R. Evid. 1102. Don't worry, the request for comments sets a due date of February next year, so any rule change is not likely to apply to a court-martial before--say--2024 or 5 (unless the JSC recommends an earlier change for adoption in the next E.O). Cheers, Phil CaveFrom the NewspeakNewsBureau desk. United States v. McPherson, a case about the interpretation of a statute of limitations provision, was released yesterday.
Editor's note: Judge Maggs's disquisition regarding the "absurdity doctrine" was interesting. However, if he believes that the test is whether “‘[a] rational Congress’ could have intended that meaning," then his reliance on that doctrine in Bergdahl is indefensible. Could a rational drafter have intended to apply the UCI provision to the President? Of course. "No. 21-0306/AR. U.S. v. James M. Madden. CCA 20200205. On consideration of Appellant's petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted and the decision of the United States Army Court of Criminal Appeals is affirmed.*
* It is directed that the Statement of Trial Results Findings Worksheet be corrected by substituting the word "groin" for the word "buttocks" in Specification 1 of Charge II and substituting the word "buttocks" for the word "groin" in Specification 2 of Charge II." Editor's note: This now makes the case reviewable at SCOTUS, while hundreds of other denials of review are ineligible. Read the G's filing in Martinez below. The long anticipated move is now being made. Readers can use the search bar to find extensive discussions of the legality of this order in an older post, with links to a longer discussion at Lawfire.
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(Ed. note. See Murl A. Larkin, Should the Military Less-than-Unanimous Verdict of Guilt be Retained? 22 Hastings L.J. 237 (1971).
Air Force Court of Criminal AppealsUnited States v. Daniel. GP, MJA to attempted possession of MDMA with intent to distribute, divers use of MDMA, divers use of Adderall, a use of LSD; a use of "mushrooms." Sentenced to two-months, a BCD, and stuff (including a reprimand). Appellant's sentence is not "inappropriately severe."
*** United States v. Trusty. GP, MJA to possessing CP. Sentenced to 3.5 years, DD, and RIR. Raises two issues: impropert TC argument on uncharged misconduct and "unnecessarily displaying contraband to the military judge," and post-trial error. Remanded for corrective action by a CA. Today is the final business day of Chief Judge Stucky's term. Next week the Stucky Court will become the Ohlson Court. While we will be commissioning some essays about CJ Stucky's tenure in the near future, today we wish to simply say: farewell and thank you for your service.
"Sic transit gloria mundi" -- CJ Stucky, 2018, reflecting on the impending end of his term.
I admire Prof. Dunlap for going to the heart of the matter and not dithering around the edges. He writes: "The complex process of leading servicemembers to wage war in the name of state is a task that requires equipping the chain of command with disciplinary power as thousands of years of military history demonstrates that the coercive effect of that authority is one element of what is necessary to get people to do what is ordinarily unthinkable: to kill other human beings (or be part of the process that does so). " Note how strong this claim is--not that the personal unified authority helps with or adds to the coercive toolbox, but that it is necessary to it. This claim is the foundation of everything, but is it correct? Prof. Dunlap fails to cite to or address the scholarship that has interrogated this precise question and has come to the opposite conclusion. See, e.g., Elizabeth L. Hillman, On Unity: A Commentary on Discipline, Justice, and Command in the U.S. Military: Maximizing Strengths and Minimizing Weaknesses in a Special Society, 50 New Eng. L. Rev. (2015): "History and social science can help us assess the claim that a command structure 'reinforced by the ability to impose punishment' is essential for a military unit to perform well under stress. Studies in those fields suggest that service members follow orders because of social and ethical norms more than command authority, that discipline is as much an internal practice than an external system of punishment, and that the chaos of a battlefield may actually be the environment in which individuals' behavior is least likely to be influenced by an authoritarian commander." (citing Mark J. Osiel, Obeying Orders: Atrocity, Military Discipline, and the Law of War, 86 CALIF. L. REV. 939, 1026-27 & nn.343-44 (1998)).
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