Recently, the Secretary of the Army reduced Major General Grazioplene's retired grade to second lieutenant--a significant "pay" cut. The action was based on the substantiated allegations that he sexually abused his daughter over a significant period going back to when he was a first lieutenant. He retired in 2015. (Whether that grade reduction can be challenged at the Court of Federal Claims is not my question.) 2 LT Grazioplene can still face court-martial--can he not?Charges for rape were preferred against Grazioplene in 2017, and in November he was arraigned on his then alleged sexual misconduct; offenses committed while he was on active duty and at three different duty stations. (He was not placed in pretrial confinement and he was not recalled to active duty.) Military prosecutors alleged in the August hearing that Grazioplene assaulted the girl at or near each of his duty stations from 1983 to 1989, which included Fort Leavenworth, Kansas; Bindlach and Amberg, Germany; Woodbridge, Virginia; and Fort Bragg, North Carolina. ![]() Grazioplene was arraigned in November 2017. Then came United States v. Mangahas, 77 M.J. 220 (C.A.A.F. 2018). As a result of CAAF's decision, the military judge dismissed the charges against Grazioplene. That was not the end of Grazioplene's legal difficulty. Thank you Army Times. Pending Appellate CasesUnited States v. Madera-Rodriguez. A military jury found a Marine Raider on trial in the 2017 death of a Green Beret staff sergeant in Mali guilty of hazing, false official statements, conspiracy charges and involuntary manslaughter. He was found not guilty of felony murder. Sentencing is expected to finish after Independence Day. United States v. Army (O-3). A chaplain assigned most recently to a Fort Leonard Wood, Missouri, basic combat training unit will face a court-martial next week on charges that he repeatedly raped a child. United States v. Naughton. In total, Naughton had been charged with dumping 3,724 cartridges of 5.56 ammunition with a value of about $1,079; 6,000 cartridges of .45 caliber ammunition with a value of about $2,041; 1,826 cartridges of 9 mm ball ammunition with a value of about $401; 120 cartridges of 12 gauge ammunition with a value of about $60; 160 cartridges of 12 gauge door breaching ammunition with a value of about $350; 80 cartridges of frangible 5.56 ammunition with a value of about $31; 200 cartridges of 9 mm hollow point ammunition with a value of about $70; two grenades and one smoke grenade, Marine Corps Times previously reported. For this he was sentenced to 16-months and a BCD (with PTC credit).
Read the brief here.
Editor's note: Was anyone involved in the early days of setting up the commissions? As early as Military Order No. 1? I am interested in any evidence that some of the motivation for a separate system was to experiment with a more expedited process that might be translatable to domestic civilian cases. This may have been motivated by the tough-on-crime rhetoric of the 90s. I once asked Bill Lietzau whether this was an early motivation and he responded with a single word: "No." Of course, the primary motivation was a hunch that one day a case like Al-Hela would be decided. The Shadow Advisory Report Group of Experts (SARGE), has released a statement on the DoD Independent Review Committee (IRC) report from last Friday. SARGE focuses on the Accountability section of the IRC report. In the BLUF, SARGE suggests that, Hard Truths does not purport to address the broader changes Congress is currently considering. As a result, it should not be read as having rejected those changes. Congress should proceed with consideration of legislation transferring disposition authority over all offenses for which the maximum punishment exceeds a year’s confinement to judge advocates who are independent of the chain of command[.] SARGE goes on to say, correctly, that, Additionally, if, as the report observes (App. B at 6), “junior enlisted Service members hav[e Should any changes to military justice practice be limited to the IRC recommendations, we will have a "ununiform" bifurcated system of military justice. This will further add to the already complex and confusing investigative and accountability process. There will become two major classes of victims: the classes identified by the IRC (Chart, Appendix B, at 10), and other victims who will remain within the commander-centric system--the mother of a murdered Sailor, the Soldiers who are victims of a barrack's thief, the Airman suffering abusive (toxic) leadership on the flight line; or the taxpayer whose money is taken in allowances fraud or military property theft. An actual or perceived unequal justice system is unlikely to be helpful to good order and discipline. The recommendations may, if enacted or implemented alone, have a perverse effect on ensuring trust in the system and in creating and supporting necessary cultural change. No one doubts the need to address acts and words of sexual aggression--Senator Gillibrand's bill is the much better, if not complete, approach Congress should follow. Cheers, Phil CaveUpdateThe Wall Street Journal has a short piece on what might be the White House thinking on the MJI&IPA. There seems to be some ambiguity on the breadth of any reform. The establishment of the IRC letter is here. Rumors abound that the IRC "results" will be out today. From the CAAFlog Newspeak Bureau desk.CAAF appears to be clearing out some of the trailer-park cases on alleged post-trial "errors." Summary Dispositions 29 June 2021. There are eight, with a similar disposition to, No. 20-0358/AR. U.S. v. Carlos Muniz, Jr. CCA 20200092. On further consideration of the granted issue (80 M.J. 401 (C.A.A.F. 2020)), and because the charges were not preferred in this case until after January 1, 2019, we conclude that the convening authority did not err in taking "no action" on the sentence, and the United States Army Court of Criminal Appeals had jurisdiction to review Appellant's case. See United States v. Brubaker-Escobar, 81 M.J. __ (C.A.A.F. June 4, 2021). Accordingly, it is ordered that the judgment of the United States Army Court of Criminal Appeals is affirmed. From the CAAF Desk.Today [30 June 2021], the United States joined global partners – including governments, civil society, and the private sector – in making commitments to the Generation Equality Forum, reasserting U.S. leadership on gender equity and equality on the world stage.
The commitment is related to, The Generation Equality Forum (GEF), convened by UN Women and co-hosted by the governments of France and Mexico, marks the anniversary of the United Nation’s Fourth World Conference on Women held in Beijing over 25 years ago, where the world recognized that “women’s rights are human rights” and adopted an ambitious Platform for Action to achieve equality and opportunity for women around the world. While tremendous progress has been made since the Beijing Conference, serious gaps remain, which have been exacerbated by the COVID-19 pandemic. The Generation Equality Forum offers an opportunity to make bold, measurable commitments to build back better and accelerate progress towards the Beijing Platform and the Sustainable Development Goals. From the CAAFlog Newspeak Bureau desk.Over the years there has been concern about members of Congress making public statements and judgments on specific pending courts-martial. Folks may remember the various statements surrounding the Hamdania cases and similar ones of that time. Even before then there were occasional forays with comments about a particular case. Of course, we may remember the Franklin/Wright issues also. Now someone has written on the subject in an item worth the read. The Taliban captured Sergeant Robert “Bowe” Bergdahl in 2009 after he walked off of his post in Afghanistan. For five years, he was held hostage, tortured, and brutalized when he repeatedly attempted to escape. Once he returned home, he was investigated and court-martialed for desertion, among other offenses. Under the Uniform Code of Military Justice (UCMJ or “the Code”), the governing law for courts-martial, Bergdahl’s trial should have been free from outside influence. But, long before the case had come to a close, John McCain, the chair of the Senate Armed Services Committee (SASC), pronounced his own verdict. “If it comes out that he has no punishment,” he announced, “we’re going to have to have a hearing . . . . And I am not prejudging, OK, but . . . [he] is clearly a deserter.” The writer goes on, Congress’s relationship with the military justice system is at a critical juncture. A crisis of sexual assault in the military has attracted intense congressional scrutiny, and the resulting legislation has radically transformed the system.The days of drumhead military justice are largely behind us, as military justice increasingly resembles the civilian system thanks to productive congressional oversight. But heightened congressional attention has come at a cost. Congress-members have often meddled with the administration of military justice in ways they would never do with respect to proceedings in civilian federal courts. This congressional interference undermines the system’s integrity and, while individual instances have garnered some media attention, the underlying systemic problems have been ignored. Max Jesse Goldberg, Congressional Influence in Military Justice. 130 YALE L. J. 2110 (June 2021). The Make Rules Clause, Article I, Sec. 8(14), certainly give Congress the authority to create a military justice system and dictate ways in which it will operate. As part of their authority, they certainly can "investigate," observe, and monitor how the system is working. But where is the line of what is appropriately within their "lane" and what might be considered an abuse of power and authority to the detriment of individual accuseds? That is the question--to do or not to do. From the abstract, The Note reveals how Congress has become more willing over time to alter the structure and function of military justice, shaping a system that increasingly resembles the civilian courts. But congress-members also have interfered with the everyday administration of military justice in ways that they would never dare to do in the civilian system. This Note proposes legislative reforms to preserve Congress’s legitimate oversight of the enduring problems in military justice and to prevent congress-members from meddling with pending cases in ways that undermine the system’s integrity. Cheers, Phil Cave.United States Supreme CourtPin v. United States, a petition to watch.
QP: Whether an appellate court reviewing a cold criminal trial record may determine that an error at trial was harmless by applying an “overwhelming evidence of guilt” test that considers only the potential effect of the error on the government’s case and not on the defense. This case raises an important and recurring question of criminal law: Can a trial error be held harmless based on the government’s “overwhelming evidence of guilt” without considering the error’s potential effect on the jury’s view of the defendant’s case? In holding that it can, the divided decision below deepens an entrenched lower-court split left unresolved in Vasquez v. United States (No. 11-199), dismissed as improvidently granted, 566 U.S. 376 (2012). Further, the decision conflicts with this Court’s precedents, and reviewing it will allow the Court to clarify a doctrine affecting more criminal appeals than any other. The frequent commenter (in his individual capacity) celebrates eight years at DoD. Let's get that "Like" count higher if you are on LinkedIn!
Rachel E. VanLandingham, American Democracy, Coups and Retired Generals, today at LAWFARE.
"Despite this national strength of free speech, Flynn’s comment, as well as other recent public statements by former senior military leaders, has garnered much negative attention. This has included calls for criminal prosecution, recommendations that former military officers be stripped of their government pensions for their speech, and even general concern expressed for the health of civilian control of the military, all because of former military officers’ engagement in the polity. Such condemnation must be resisted: Not only is it not warranted, but it also is the wrong tack to take in America’s democratic, pluralistic national experiment, as I explain in this post." Congratulations to NIMJ General Counsel Frank Rosenblatt, who has been elected President of the Committee on Military Justice at The Int’l Society for Military Law and the Law of War.
The complicated history of determining lesser included offenses (LIOs) under the Uniform Code of Military Justice (UCMJ) gained a new chapter with the Military Justice Act of 2016 (MJA 2016). While MJA 2016 simplified and clarified certain areas of military justice, it has only muddied the waters regarding LIO identification. Prior to MJA 2016, determining the LIO of a given punitive article under the UCMJ required performing a strict elements test from United States v. Jones; this test often proved challenging to counsel and judges alike. Confusion over LIOs was particularly common when it came to the relationships between the various rape and sex offenses, and determining which LIOs they implicated. MAJ Andrew M. Lewis, The Lego Test for Lesser Included Offenses: MJA 2016 Provides Something New and Painful to Stumble Over. Army Lawyer, No. 6, 2021.
Four months ago, this blog discussed two appeals—one to the CAAF and one to the Court of Appeals for the District of Columbia (CADC)—that addressed whether Congress could constitutionally subject members of the Fleet Reserve and Fleet Marine Corps Reserve (collectively Fleet Reservists) to the UCMJ. The first domino, United States v. Begani, has now fallen.
As a reminder, an enlisted member of the Navy or Marine Corps may transfer into the Fleet Reserve or Fleet Marine Corps Reserve after twenty years of active-duty service. Fleet Reservists receive retainer pay, are subject to recall, and must maintain military readiness. Article 2(a)(6), UCMJ, subjects Fleet Reservists to continuous UCMJ jurisdiction. I came across this case today:
"Defense Department Linguist Sentenced to 23 Years in Prison for Transmitting Highly Sensitive Classified National Defense Information to Aid a Foreign Government Mariam Taha Thompson, 62, formerly of Rochester, Minnesota, was sentenced today to 23 years in prison for delivering classified national defense information to aid a foreign government. As part of her March 26 guilty plea, Thompson admitted that she believed that the classified national defense information that she was passing to a Lebanese national would be provided to Lebanese Hezbollah, a designated foreign terrorist organization." Doesn't this seem like a very harsh sentence? I am curious what your intuitions are. POLL: Was this too harsh, just right, or too lenient? No—wait, the door was not open; yes, it was—no, it wasn’t. The CAAF has decided United States v. Steen. Appellant was convicted of wrongfully introducing marijuana onto a military installation and then distributing it. The members sentenced Appellant to a BCD, fifteen days confinement, and reduction to E-1. The CGCCA found a harmless error in admitting text messages about other drug related conduct and affirmed. A three-two majority at CAAF agreed with the CGCCA that the military judge abused his discretion by admitting evidence as propensity but disagreed the error was harmless. At trial, Appellant moved to suppress the text messages as inadmissible character evidence. The prosecution responded, asserting they were admissible under M.R.E. 404(b) for another purpose—to show that Appellant was out of marijuana a few days after he allegedly sold it to SA Harris. The theory was that this demonstrated a plan to acquire and distribute marijuana continually. The military judge granted the motion to suppress but advised the prosecution he would reconsider his ruling if the prosecution thought the defense opened the door to the evidence. The accused having testified; the military judge then ruled he had opened the door to the ‘suppressed’ evidence. The military judge also instructed the members how they could consider Appellant’s answers in cross-examination about the text messages. Consider evidence that [Appellant] may have texted about purchasing or smoking marijuana in the days following the alleged misconduct for the limited purpose of its tendency, if any, to prove the Government’s allegation that [Appellant] allegedly needed to replenish his supply of marijuana based on their allegation that [Appellant] had sold marijuana to Seaman Apprentice Harris. You may not consider this evidence for any other purpose, and you may not conclude from this evidence that [Appellant] is a bad person or has general criminal tendencies and that he, therefore, committed the offenses charged. In a case of conflicting testimony, CAAF added that the improper evidence added “new ammunition” to the prosecution that undermined the credibility of Appellant’s case. The government subsequently bears the burden of showing the error was harmless. The majority applied the four-factor test in United States v. Yammine (the strength of the Government’s case, the strength of the defense’s case, the materiality of the evidence in question, and the quality of the evidence in question). They then held that the government did not meet their burden of proof in showing the admission of the text messages were harmless. United States v. Yammine, 69 M.J. 70 (C.A.A.F. 2010). Both Judge Sparks and Judge Maggs dissented. Judge Sparks, joined by Judge Maggs, stated that the introduction of the text messages was a proper rebuttal to Appellant’s broad assertion that he never failed any of the twelve to fifteen drug tests while in active duty. Appellant’s testimony suggests a specific character trait. * Thus, admission of the text messages was a logical and proper impeachment of the offered testimony. It follows that the erroneous instruction of the military judge was harmless. Judge Maggs, joined by Judge Sparks, took a different approach in his dissent. Judge Maggs briefly agreed with Judge Sparks’ admissibility determination but then turned his attention to realigning the law of the case doctrine with the cross-appeal doctrine. Rejecting Appellant’s view that issues decided in lower courts are considered the law of the case in subsequent proceedings if not raised in a cross-appeal, Judge Maggs urges this court to follow the Supreme Court in Christianson. See Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988) (“law of the case cannot bind this Court in reviewing decisions below”). Thus, Appellant’s petition for review “exposed the entire case for review,” and this Court has the discretion to consider the issue of admissibility even if the Government did not certify that issue. Judge Maggs pointed to the cross-appeal doctrine as support for this conclusion. The cross-appeal doctrine allows the prevailing party to defend the lower court’s judgment on any ground “whether or not that ground was relied upon, rejected, or even considered by [the lower courts].” Washington v. Confederated Bands & Tribes of Yakima Indian Nation, 439 U.S. 463, 476 n.20 (1979). However, Judge Maggs concludes that “it makes no sense to expect a party that prevails in a lower court to appeal the judgment of that court” as it would prove to be a waste of judicial resources. United States v. Savala, 70 M.J. 70, 79 (C.A.A.F. 2011). Affirm the CGCCA decision, says Judge Maggs. Noelle Peragine, at the CAAF Desk.(Ed. Note. Broad testimonial denials are dangerous to an accused when known (or unknown [do clients always tell you everything?]) other conduct exists. I tend to agree with Judge Maggs but would hope a Mil. R. Evid. 403 analysis might work to exclude the evidence. “Danger, Will Robinson.”)
In United States v. Briggs, the U.S. Supreme Court held that the Uniform Code of Military Justice (UCMJ) contains no statute of limitations for rape. Beyond the three convicted rapists who brought the appeal, few will be very disappointed to learn of this ruling. People who commit rape deserve punishment, regardless of how long they have managed to get away with their crimes. Nonetheless, we can profitably notice when Courts give us desirable results by stretching the language of statutes. Such observation is especially useful in refuting that same Court’s helpless claims, in other contexts, that the statute dictated the result. It is rare indeed for a statute to make judges do anything that they do not wish to do. Sherry F. Colb, United States v. Briggs: The Court Reaches a Wrong but Just Result. Verdict, 28 June 2021.
From the SCOTUS Desk. This thread about an active duty servicemember being tried in federal court for Putsch-related offenses reveals some significant confusions. Prof. Vladeck even weighs in with an attempt to disabuse. The public does not accept the separate sovereigns doctrine. The thread is also interesting because it reveals the punitive impulses of many (most?) people who clamor for a post-federal military proceeding. Brenner FissellEIC On June 23, 2021, Joint Chiefs of Staff Chairman General Mark Milley testified before Congress on when the topic of Critical Race Theory (“CRT”) training in the Department of Defense appeared at the forefront of his testimony. Over the last few weeks Republican members of Congress have pushed for legislation banning CRT in education, claiming that it is anti-American and divisive. As of June 25, 2021, Arkansas, Idaho and Oklahoma have banned CRT training while over 20 additional states are considering similar legislation. CRT is a topic every military leader should become familiar with as the U.S. military does not have a reputation for making strong efforts to promote diversity and inclusion in their ranks. In fact, the military's most senior leaders who were famously photographed alongside Donald Trump in the Oval Office, are all White men. Further, the last decade has seen dozens of headlines smearing social movements like Black Lives Matter and attacking individuals who push for anti-racism. Gen. Milley firmly stated “…I personally find it offensive that we are accusing the United States military, our general officers, our commissioned, noncommissioned officers of being, quote, 'woke' or something else, because we're studying some theories that are out there." This came in response to Representative Matt Gaetz, who is currently under investigation by Federal authorities for sex trafficking minors, asking “how should the department of defense think about Critical Race Theory?” Unsurprisingly Rep. Gaetz began his question with his own discordant opinion, that mandated CRT training is the number one concern among military Officers. He further claimed that these concerns were particularly high among units with greater minority service members—where CRT training is needed most. Unfortunately for Gaetz, Gen. Milley responded in defense of CRT “…what is wrong with understanding [critical race theory] — having some situational understanding about the country for which we are here to defend?" Due to CRT’s frequent mis-categorization as “political” or “polarizing,” it is uncommon to hear such a brazen, public defense from a leader like Gen. Milley. Typically, military leaders have toed the line of neutrality when it comes to issues that surround race and systemic racism in our military, not realizing how loud their neutrality is to BIPOC (“Black, Indigenous, People of Color”) service members. The usual response to questions surrounding race is that we are all one military or that we’re all one color, “green.” On the other hand, it is tough to give full credit to Gen. Milley’s statements as they seem to be too little, too late. Last June, Gen. Milley escorted former President Trump to St. John’s Church for his famed Bible photo, a photo that was taken immediately after Trump ordered tear gas onto Black Lives Matter protesters. Yet, learning anti-racism is a life-long process that requires bold, public commitment like Gen. Milley’s. There is no doubt that the U.S. has a long history of White supremacy and systemic racism, both of which have found their way into the rank and file. These notions are often challenged with outcries of “woke” culture or “cancel culture.” However, Gen. Milley put it well when he claimed, “what is wrong with having awareness?” This seems to be the critical point that the GOP and service members who politically align with the GOP tend to miss. Erasing CRT training largely erases the cultural identities of service members who are making an equal sacrifice and sending a message that their experiences do not matter. BIPOC soldiers are often choosing the military over low-income jobs, or because they are seeking access to housing, education, and health care, all the while submitting themselves to grueling treatment in training and combat environments. If General Milley can come forward and rebut ill-placed claims of “wokeness” around the theories that shed light on the truth of our nation’s history, more leaders should feel empowered to follow suit. The fragility of CRT opponents is much deeper than what it appears. It is more than a challenge to the American history they know and choose to believe, but a challenge to the power they hold. To accept CRT would mean to admit that America is a flawed nation with a soiled history of oppression and brutalization. But what CRT opponents fail to perceive is that this is okay. To see progress and build America to be the great nation we know it to be, we must learn from our past and acknowledge the pain we have caused to so many. Being a “woke” military should not come as an insult indicating weakness, but as a strength in understanding who we are as a nation. Alix PowersIntern "Order Granting Petition for Review
No. 21-0243/AF. U.S. v. Derrick O. Williams. CCA 39746. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is granted on the following issue: WHETHER THE AIR FORCE COURT ERRED BY FAILING TO CONSIDER APPELLANT'S ERRONEOUS DEPRIVATION OF PAY WHILE SERVING HARD LABOR WITHOUT CONFINEMENT, PROPERLY RAISED AS AN EIGHTH AMENDMENT VIOLATION, WHEN ASSESSING SENTENCE APPROPRIATENESS. No briefs will be filed under Rule 25." [Ed. note: The AFCCA opinion is here. At AFCCA, the issue was AOE (5) whether Appellant’s sentence was rendered unlawfully severe when he was not correctly paid while he served his sentence[?] If you have a paper draft sitting around and don't know what to do with it, consider sending it here:
"The Editorial Board of The Military Law and the Law of War Review / Revue de Droit Militaire et de Droit de la Guerre (MLLWR) is pleased to invite submissions for the upcoming Volume 59 Issue 2, due for publication in late 2021. The Review's editorial board welcomes submissions that come within the broader scope of the Review, including military law, law of armed conflict, law on the use of force, as well as international criminal law and human rights law (inasmuch as related to situations of armed conflict). For Volume 59 Issue 2, the deadline for submission has been extended to July 4, 2021. Submissions should be sent to [email protected] and will be subject to double-blind peer review. Articles should normally not be longer than 15,000 words (footnotes included), although longer pieces may exceptionally be considered. Inquiries as to whether a possible submission comes within the scope of the Review can be sent to the above mentioned email address. " The 26-comment thread below has broken the spirits of the editorial team--not due to content, but due to volume of reading. Going forward, comments will be moderated ex post instead of ex ante. Thus, comments will be presumptively approved and posted, but may be removed after a brief life on the site upon review or complaint (please report any objectionable comments to [email protected]).
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