Supreme CourtFrom the great Prof. Berman’s Sentencing Law & Policy. The Court was notably unanimous in Caniglia v. Strom, No. 20–157 (S. Ct. May 17, 2021).bThe start and close of the short opinion for the Court by Justice Thomas serves as a useful summary: Army Court of Criminal Appeals
0 Comments
"Order Granting Petition for Review
No. 21-0183/NA. U.S. v. Frantz Beauge. CCA 201900197. 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: DID THE LOWER COURT CREATE AN UNREASONABLY BROAD SCOPE OF THE PSYCHOTHERAPIST-PATIENT PRIVILEGE BY AFFIRMING THE MILITARY JUDGE'S DENIAL OF DISCOVERY, DENYING REMAND FOR IN CAMERA REVIEW, AND DENYING APPELLANT'S CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL? Briefs will be filed under Rule 25." In a The Hill piece entitled "Military commanders shouldn't have prosecution authority," we have another take on some of the arguments in favor of maintaining the status quo on disposition authority. Schlueter and Schenck’s defense of the status quo boils down to their assertion that sexual assaults and rape are worse in civilian society, military members are more likely to be prosecuted than civilians and that commanders make reasonable decisions when determining who should be prosecuted. Editor's note. Surely (yes, DMLHS, surely), the argument is not about whether the civilian or military justice system deal with the situation better, but about who in the military system could or would do it better.
Cheers, PC. CAAFlog executive editor Phil Cave published this op-ed yesterday in The Hill:
Congress, not the courts, say who has authority to court-martial servicemembers "More troubling is [Schlueter & Schenck's] misapplication of the Supreme Court’s Solorio v. United States decision by suggesting that the court somehow requires commanders to decide to prosecute at court-martial. And, they allude to unspecified difficulties in prosecuting cases — something irrelevant to who decides to prosecute. In 1987, the services successfully prosecuted 8,600 general and special courts martial. Did some challenge the service-connection for their prosecution? Yes, some did but not enough that courts martial became “unworkable.” The statistics are publicly available. Solorio reversed O’Callahan v. Parker and Relford v. Commandant by saying that the Constitution precluded court-martial prosecution of a service member for crimes in the civilian community; if they were not “service-connected.” However, neither O’Callahan nor Solorio said anything about who should make the prosecution decision." UPDATED 16 May 2021 in light of some comments. (Thanks for commenting!)
In Mellette, the appellant was convicted of child sexual abuse on diverse occasions. The "enlisted" panel sentenced him to five years and a DD. On appeal he had six assignments of error. Three were determined to be error and one of them got him a confinement reduction from five to three years. (Note, this is a 2019 case so it is likely appellant is close to his MRD, assuming that is, no certification to CAAF and that court overruling NMCCA.)
Here is a link to what I have understood to be S.B. 1520 (per Congress.gov)
A BILL To reform the disposition of charges and convening of courts-martial for certain offenses under the Uniform Code of Military Justice and increase the prevention of sexual assaults and other crimes in the military. This Act may be cited as the ‘‘Military Justice Improvement and Increasing Prevention Act of 2021’’. Read his keynote address here: Appellate Review of Courts-Martial in the United States
"One of the novelties of the UCMJ was the institution, for the first time, of direct civilian judicial review of courts-martial. This was not popular with many in the services, who felt that it threatened command prerogatives. (In fact, the Elston Act’s Judicial Council, which provided administrative, not judicial, review within the Army, was an alternative that many judge advocates favored.) In the end, however, the supporters of real judicial review won out, although the course of debate was by no means straightforward." Please, if you haven’t already done so take a moment to visit our informal survey of trial experience here. The more responses we have the better we can have an understanding of the general level of trial experience across the Services. Thanks. CCA ORAL ARGUMENTS ACCA has one oral argument scheduled for 25 May 2021, the others do not have any scheduled. AFCCA United States v. Taylor. In this MJ/GP case, Appellant was sentenced to 60 days confinement, a dismissal, a forfeiture, and a reprimand (are we seeing quite a few AF cases with a reprimand?). He was convicted of five specifications of 133 and two of fraternization. Yes, another post-trial error case. Interestingly, the court also had this to say. This case was docketed with this court on 4 November 2020, without an appellate defense counsel assigned. On 14 January 2021, this court sent a certified letter to Appellant advising him that his case was docketed with this court and informing him that he had 60 days to file a brief assigning any error pursuant to Rule 18(d) of the Joint Rules of Procedure for Courts of Criminal Appeals. JT. CT. CRIM. APP. R. 18(d). Appellant submitted no response. No appellate attorney has entered an appearance before this court on behalf of either Appellant or the Government. The court also pointed out various errors and inconsistencies in the record itself.
The decision does not address the odd circumstances regarding the absence of appellate counsel. Perhaps they consider it mooted by their action on the case. Remanded, and dismisses appellate jurisdiction. Judge Annexstad dissented. United States v. Helpingstine. In this MJA NG case, Appellant was convicted of two specifications of sexually abusing a child and was sentenced to three years, a DD, reduction, and reprimand. On appeal, he challenged the factual sufficiency of the evidence. Affirmed. Reuters story here.
"The Justice Department said Christopher Warnagiris, 40, a Marine Corps major from Woodbridge, Virginia, has been charged with federal crimes, including obstructing law enforcement officers during civil disorder and obstruction of justice. The FBI said Warnagiris has been stationed since last summer at the Marine Corps base at Quantico, Virginia. A law enforcement official said Warnagiris is believed to be the first active duty U.S. military officer to be charged in connection with the Jan. 6 riot. The official said that about 40 U.S. military veterans also have been charged, as well as four military reservists." The National Institute of Military Justice (NIMJ) has published a statement on PROSECUTORIAL DISCRETION UNDER THE UNIFORM CODE OF MILITARY JUSTICE. You will see recommendations beyond what is in the current Military Justice Improvement & Increasing Prevention Act (SB1525 of 29 April 2021). NIMJ recommends transferring prosecutorial discretion not only for all sex offenses, but also for all serious offenses – those for which the authorized maximum punishment exceeds one year’s Opinion here.
"This Court granted review to determine whether the CCA conducted a valid Article 66(c), UCMJ, review when it 'failed to consider Appellant’s First and Fifth Amendment claims even while entertaining his Eighth Amendment claims.' We hold that applicable precedent from this Court requires the CCA to consider all of Appellant’s constitutional claims."
Read Statistics don't support removing commanders from military justice at The Hill.
"THE REAR ADMIRAL JOHN S. JENKINS WRITING AWARD FOR LAW STUDENTS
The Rear Admiral John S. Jenkins Writing Award honors a leader of the military bar who was a co-founder of NIMJ, the inaugural chair of the Advisory Board, and thereafter a Director of NIMJ for many years. This award is presented to the best nominated paper written by a law student on a military legal topic and reflects Rear Admiral Jenkins’ deep commitment to both legal education and military justice. Rear Admiral John S. Jenkins served in the Navy for 28 years ultimately serving as The Judge Advocate General of the Navy. He also served as Senior Associate Dean for Administrative Affairs at the George Washington University Law School and as a member of the Cox Commission, which was convened by NIMJ in 2001 to recommend improvements in the Uniform Code of Military Justice. The award carries a $250 prize and certificate. The paper may also be published on the NIMJ website with the author’s consent. Students may nominate their own work, including work that has been published in a law journal; faculty may also nominate deserving student papers. Papers and/or published articles are eligible for this award if they were written by a candidate for the J.D. (that is, by a student who has not yet completed his or her degree) in academic year 2020-2021. Submissions will be evaluated by a committee of law professors and practitioners on the basis of “excellence in writing on military law.” If no paper is deemed appropriate for the award, the committee may elect not to make an award. If more than one paper is deemed worthy of recognition, the committee may honor such papers with honorable mention. Interested students or recommending faculty should submit the paper, accompanied with the author’s name, phone and email, along with any publication information on the paper. Submit your paper to NIMJ ([email protected]) no later than 31 July 2021." https://www.nimj.org/writing-competitions.html "Sexual harassment and sexual assault are ongoing problems in the military. The Department of Defense responded in 2019 with sweeping changes in how the military handles sexual misconduct, including a proposal to criminalize sexual harassment in the Uniform Code of Military Justice (UCMJ). This Article, co-authored by an expert on workplace sex discrimination and a former military officer, responds to this proposal. We argue that sexual harassment, however reprehensible, is not criminal conduct. Moreover, criminalization is likely to undermine the military’s efforts to prevent and punish sexual harassment by raising the stakes for the involved service members, thereby deterring reporting, and by imposing a high evidentiary standard. Building on these insights, we propose a set of reforms to the UCMJ aimed at aligning the military justice system with civil employment discrimination law. These proposals include assigning independent authority to investigate and discipline sexual harassment outside the chain of command, using administrative actions that employ a civil burden of proof to adjudicate sexual harassment complaints, and making compensatory damages available to service members for economic and psychological injuries caused by sexual harassment. The military maintains that preserving good order and discipline justifies its independence from the reach of civil courts and law. Federal courts have obliged by holding that Title VII does not cover uniformed military personnel. In exchange for this independence, the military justice system must provide the basic protections of the civilian justice system."
Read Sexual Harassment is Not a Crime: Aligning the Uniform Code of Military Justice with Title VII here. Editor's note: This is a refreshing and courageous argument in the current environment. It counteracts the knee-jerk tendency to argue that all societal problems should be responded to with criminalization, even when the criminalization only affects people that we "don't like." Today Prof. Schlueter sent us the final draft of his defense of commander disposition authority. Read Taking Charge of Court-Martial Charges (posted in draft form earlier) here.
Editor's note: In the central section of the argument, Part 5, the authors aim to demonstrate an inherent connection between commander disposition authority and good order and discipline. The core of this section is a citation to the famous case Curry v. Secretary of the Army, 595 F.2d 873, 878 (D.C. Cir. 1979). But Curry is a judicial defense of the congressional balance struck regarding Due Process in military justice. It is an expression of judicial restraint: "At the outset, we note the difficult burden a litigant shoulders when he challenges congressional decisions governing military practices. Article I, section 8 of the Constitution empowers Congress to “make Rules for the Government and Regulation of the land and naval Forces.” The importance of maintaining an effective military to insure national security renders this power especially broad. Consequently, a court reviewing legislatively approved military procedure “must give particular deference to the determination(s) of Congress.” Curry v. Sec'y of Army, 595 F.2d 873, 876–77 (D.C. Cir. 1979). What, then, would Curry have to say to a legislator who is herself tasked with striking the balance? “Why aren’t there any Black people?,” Pedro Bess asked his defense attorney. Bess, who is Black, was on trial for allegations of sexual misconduct against white women. The ten-member jury was all white. The trial judge denied Bess’s challenge, as did two appellate courts. Although constitutional standards have evolved to provide for racial diversity of juries in criminal trials, Bess was shut out from those developments. That is because Bess was in the Navy and was tried by court-martial. Bess’s military commander enjoyed broad discretion to handpick the individual panel members (jurors). As troubling as Bess’s case is, a quick fix seems unlikely since the Pentagon has spent the better part of the past decade resisting proposals spearheaded by Senator Kirsten Gillibrand to reform the military justice powers of commanders. Still, this year’s efforts enjoy broader bipartisan support and appear likely to pass in some form. Bess’s case is just the latest news item in a growing recognition that U.S. military justice is plagued by racial disparities, and that, for good or ill, commanders bear the consequences of calling the shots. A 2019 study from the Government Accountability Office (GAO) analyzed military justice actions from 2013 to 2017 and found that Black servicemembers were about twice as likely to face general or special court-martial as white servicemembers. The problem extends more broadly to racial retaliation. As the U.S. reckoned with the problem of systemic racial injustice last year, a Reuters special report found that the military’s process for reporting discrimination to command-appointed representatives was perceived to be a dead end. Few complaints were substantiated, and minority servicemembers who complained of racial discrimination were often viewed as being in defiance of their units. Surveys of Black, Hispanic, and Asian servicemembers show that significant numbers have experienced racial discrimination. Many thought that reporting an incident would not change anything, and a higher percentage thought that reporting would negatively impact them. Military leaders acknowledge that they are just beginning to understand the scope of the crisis of racial disparities in military justice. “Overall, results reveal much work is needed to improve the reporting process for those who experience racial/ethnic harassment and discrimination,” the Pentagon acknowledged in a press release last year. Lt. Gen. Charles Pede, the Judge Advocate General for the Army, testified that the GAO report “raises difficult questions – questions that demand answers. Sitting here today, we do not have those answers.” Pede directed a comprehensive assessment “to get to the left of the allegation, left of the disposition decision, to examine why the justice system is more likely to investigate certain soldiers…” “Getting to the left” is a military expression for acting early in the timeline of an incident to address problems before they worsen. It is how other injustices in military justice have been counteracted in recent years. For example, at the height of the Afghanistan and Iraq conflicts over a decade ago, thousands of military members returned from combat and faced courts-martial or involuntary separations with stigmatizing discharges. By just focusing on the misconduct, military commanders were often not aware that some of the misconduct was symptomatic of post-traumatic stress disorder (PTSD) or traumatic brain injury (TBI). When this connection became more widely known, a change in the law required screening for combat-induced PTSD or TBI for many adverse actions. In those cases, when commanders were required to find out about crucial factors that occurred before the misconduct, they were able to make more fully informed choices about wielding their military justice powers. “Getting to the left” resulted in better decisions. In this way, commanders could be required to investigate the presence of racial harassment or discrimination, especially before pursuing punishment of minority servicemembers for minor transgressions. Even if commanders’ traditional military justice powers are soon curtailed, their recommendations will still carry weight and should be fully informed. Meanwhile, Pedro Bess is trying to “get to the left” of his own court-martial conviction: he recently filed a petition for a writ of certiorari at the U.S. Supreme Court. Frank RosenblattGuest Exercising his authority under 10 U.S.C. § 825, a military commander hand-selected ten White members to sit on a general court-martial panel—the military equivalent of a jury—for a Black man charged with sexual misconduct against White women. Before selecting this all-White panel, the commander received a report showing the White women first identified their perpetrator not by a name, but by the color of his skin: Black. Docket entries for Bess, here.
Prof. Vic Hansen, who has emerged as a leading opponent of the MJIA, writes an op-ed in USA Today (apparently as a counterpoint to the position of the Editorial Board):
"Commanders are key to eliminating sexual assault and harassment in the ranks. If commanders are removed from the very system that is intended to help ensure good order and discipline, then they would be less invested in addressing the problem of sexual assault and less accountable when they fail. This is precisely the wrong approach." Appellant, charged with and originally convicted of one specification of sexual assault against Staff Sergeant (SSgt) FC, moved to dismiss the specification upon rehearing on the ground that the Government violated his right to a speedy trial under the Sixth Amendment. The military judge granted the motion and dismissed the case with prejudice, after which the Government appealed to the United States Air Force Court of Criminal Appeals (CCA), under Article 62, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 862 (2012). The CCA reversed and Appellant appeals. We hold that the military judge did not err in granting Appellant’s motion to dismiss and reverse. The nub of the issue is the fourth Barker v. Wingo, 407 U.S. 514 (1972) factor, prejudice. [The AFCCA] reasoned that Appellant was not prejudiced by the delay of the rehearing because he had “failed to demonstrate” that (1) “TSgt KW and LB lost their memories during the period of facially unreasonable delay” or that (2) “the lost memories of TSgt KW and LB have actually prejudiced his defense at trial, in light of the availability of their prior testimony and other testimony that remains available.” Additionally, the CCA stated that that lack of prejudice “outweigh[ed] the remaining [Barker] factors that, taken together, only moderately favor [Appellant].
No. 21-0201/AR. U.S. v. Adrian L. Ingram, Jr. CCA 20190610. 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 CONVENING AUTHORITY'S FAILURE TO TAKE ACTION ON THE SENTENCE DEPRIVED THE ARMY COURT OF JURISDICTION UNDER ARTICLE 66, UCMJ. No briefs will be filed under Rule 25. CGCCA United States v. Leal. ACCA United States v. Lancaster. Convicted by an 'enlisted panel' appellant was convicted of one specification of stealing military property and sentenced to 30 days, a BDC, a reduction, and a reprimand. Appellant claims her trial defense counsel violated her right to autonomy in her defense by conceding her guilt at trial. Additionally, in matters submitted pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), appellant asserts her counsel were ineffective because they failed to comprehend the law relevant to her case. We disagree on both counts, and affirm the findings and sentence. Methinks a little more to come on the concession of guilt by DC. AFCCA United States v. Stefanek. In this mixed plea MJA case appellant was sentenced to 24 months confinement, a BCD, and other stuff. Appellant pleaded guilty to one specification of absenting himself from his place of duty and one specification of unlawfully carrying a concealed weapon into his place of work; he also was convicted, contrary to his pleas, of one specification of kidnapping. The appellant raised six issues.
At 0800, on 1 April 2019, Appellant’s supervisor and mentor, SB, sat at her office desk when Appellant came to see her carrying a long shipping box, a duffel bag, and a soda. SB was a noncommissioned officer (NCO) and the two had known each other for approximately eight months. Although Appellant’s voice was faint, SB heard him say, “Can we talk? If not, I’m going to kill myself,” or words to that effect. SB asked Appellant to repeat what he had just said, which he declined to do. SB asked Appellant to write “Do Not Disturb” on the whiteboard outside her door, and Appellant complied. Appellant then reentered SB’s office, closed the door, and locked the pushbutton knob on the inside of the door without being asked. As Appellant sat in a chair next to the door, SB then asked what was in the box, and Appellant told her he had a shotgun. SB asked to see it, and Appellant partially removed the gun from the box. SB did not know if it was loaded and had thoughts that she would not make it out of her office or see her family again. Appellant related that he would kill himself if she did not talk with him or if there were any interruptions. SB had a “long talk” with Appellant and did not feel free to leave even as she needed to use the restroom. During their conversation, SB attempted to contact others outside the office by asking for Appellant’s permission to contact MG, an NCO junior in grade to SB, who was scheduled to come to her office, and to tell him not to come. Appellant gave her his permission to contact MG. MG contacted SB on her cell phone, and SB was able to message him at 0809 to say that Appellant was in her office and had locked the door. This was the first time that she notified anyone that she was being held against her will because Appellant was “watching [her] every move,” and SB wanted to comply with his demands for no interruptions. MG immediately asked, via text message, if he should help or call someone. When SB did not respond, MG knocked on SB’s office door, but no one answered. MG realized the door was locked, so he went to find the first sergeant. Chief Eddie Gallagher is back in the spotlight, this time, taking his version of events to a podcast. Many will remember Gallagher's case, in part, because of its high publicity, gaining notice and comment by President Trump, in addition to raising many potential UCI questions. As reported by Task & Purpose, Gallagher did an interview with "The Line" as part of their series finale, where he confesses, or rather sheds light, on the moments that led the Navy to prosecute him for war crimes. Among those admissions, Gallagher claims that his team's intention was to kill the ISIS fighter and that "everybody was on board." Notably, he also admits that instead of rendering medical aid, they practiced medical procedures on the fighter because "he was going to die, regardless." While these admissions are shocking, only time will tell what will come of them. When asked for comment, the Navy declined. With a new administration in power, will there be any repercussions for these admissions or will they simply drift into the abyss. Elizabeth M. BerecinManaging Editor This is the CGCCA's first decision of the year and Leal's second appearance before the court. (In 2020 the court issued six opinions of which four are published. Keep in mind that the CG is a smaller and more disciplined force.) In 2016, a special court-martial (Leal I) convicted Appellant, contrary to his pleas, of a single specification of abusive sexual contact[.] It adjudged, and the Convening Authority approved, a sentence of reduction to E-1, confinement for thirty days, and a bad-conduct discharge. On appeal, we concluded the specification failed to state an offense and set aside the conviction, dismissed the charge and specification, and authorized a “new trial . . . upon a different specification.” United States v. Leal, 76 M.J. 862, 863 (C.G. Ct. Crim. App. 2017). Leal raised three issues on appeal; two connected to the jury deliberations and one of post-trial delay.
Although the sentence in Leal II falls short of the jurisdictional minimum of Article 66(b), UCMJ, both parties assert that the doctrine of continuing jurisdiction applies—that jurisdiction over Leal I, with its jurisdictional sentence, extends to Leal II. We ultimately agree, but though the doctrine of continuing jurisdiction is generally well-established, there is scant precedent applying it to the procedural setting of this case: fresh charges referred to a court-martial after an appellate court dismissed the original ones. The court distinguishes Leal from the common case where there is a rehearing on the original charges. In discussing R.C.M. 810(e), the court concludes that it is dealing with "an "other" trial" as defined so has jurisdiction in these unusual circumstances. The court does so by reference to Article 63, UCMJ, explicitly finding that the statute establishes appellate jurisdiction not the President through the MCM. The court also adopts reasoning from the NMCCA in United States v. Lee, 72 M.J. 581 (N-M Ct. Crim. App. 2013) (certificate for review withdrawn, 70 M.J. 351 (C.A.A.F. 2011).
The UCMJ "debates" is scant but implies the court may be right on what Article 63 means. See Discussion Larkin-Brooks-Graffenfried interchange. HH at 1180 The main concern at the time of the hearings was that new statute was perceived to allow an "acquittal" to be retried. On the members issue developed, but not enough, in a post-trial hearing ordered by the convening authority; |
Links
CAAF -Daily Journal -Current Term Opinions ACCA AFCCA CGCCA NMCCA Joint R. App. Pro. Global MJ Reform LOC Mil. Law Army Lawyer Resources Categories
All
Archives
April 2022
|