"Your money or your liberty? Barring certain limitations, monetary penalty or incarceration awaits service members who have fines and contingent confinement — i.e., sentence conditions allowing for the imposition of confinement if an individual fails to pay a punitive fine — adjudged against them under the military justice system. This is the case despite recent significant changes to the Manual for Courts-Martial (MCM) and Rules for Courts-Martial (RCM) and contrary interpretations of how to implement contingent confinement. The RCM outlines military fine enforcement through contingent confinement in Rule 1003(b)(3), which states that sentences including fines “may be accompanied by a provision” providing “that, in the event the fine is not paid,” the convicted individual may be “confined until a fixed period considered an equivalent punishment to the fine has expired.” Although another rule addressing this punishment was removed from the RCM by Executive Order 13825 in 2018 — Rule 1113(e)(3), which described contingent confinement as replacing any associated fine and the manner in which this substitution must take place — Rule 1003(b)(3) was left unchanged. Both courts and scholars, however, have stumbled in interpreting this Rule, creating confusion as to its true legal effect and viability for achieving certain penological outcomes. In light of the aforementioned recent removal of Rule 1113(e)(3) from the RCM and inaccurate scholarly and judicial presentations, this article clarifies the law of military fine enforcement through contingent confinement and offers recommendations for its use."
Read the full article here. "Service members living with HIV are confronted with a set of policies regulating everything from their sexual behavior to their ability to hold certain jobs. Some of these rules impose criminal liability. Others make it difficult for people living with HIV to enlist, become commissioned officers, or deploy overseas.The military’s approach was developed in the 1980s, and reflected the bleak outlook for those diagnosed with HIV at the time. Today, however, advances in treatment and prevention have transformed HIV from a deadly disease into a manageable chronic illness—but the military’s policies remain stuck in the past. In addition to being medically unsound, these policies unfairly single out service members with HIV, increase stigma, and are needlessly punitive. They are also vulnerable to legal challenge under the Administrative Procedure Act and the Fifth Amendment. Drawing on interviews with service members, lawyers, and public-health experts, this Comment makes the case for reform."
Read the full comment here. Editor's note: The Gutierrez case is discussed extensively in the paper. ![]()
Editor's note: the Marine Corps deserves great credit for permitting its junior officer to publish reflections on these issues. ![]()
Investigation finds no evidence linking sexual harassment to SPC Guillen's murder But finds significant faults with public affairs management and social media engagement Disclaimer: The views expressed herein are solely my own, and should not be attributed to anyone else A recently released report of investigation confirmed that SPC Vanessa Guillén's murder had no direct relationship to any sexual harassment or sexual assault. Specifically, the report found "no credible evidence to conclude SPC Robinson [who murdered SPC Guillén and took his own life when confronted by authorities] sexually harassed SPC Guillén or that they had any relationship outside of their work setting." But don't expect that to change the narrative. The tragedy of this young Soldier has been abused by unscrupulous people with agendas of their own from the very beginning. As I noted in a prior post, the propaganda machine surrounding SPC Vanessa Guillén's disappearance launched a movement and inspired legislation bearing her name regarding sexual harassment and assault, despite the complete lack of any evidence that these issues were connected to her death. Any SHARP related topics did not enter the picture until the Guillén family hired an attorney, which the report confirms this to have occurred on June 16, 2020. Thereafter, due in large part to publicity generated on social media, SPC Guillen's disappearance became a much higher profile incident and the association with sexual harassment was taken for granted. It bears mentioning that the report found no fault with the Army's search efforts. Instead, it found plenty of fault with the way publicity surrounding SPC Guillén's disappearance was handled. Specifically: "[S]ocial media presented a unique challenge… [and] filled a void in command messaging that allowed a negative narrative about Fort Hood and the U.S. Army. Support on social media for the Guillén family was robust, and it overwhelmed Task Force Phantom / Fort Hood capabilities from the onset. An analysis of the social media environment conducted in support of this investigation revealed an uncountered social media-driven negative and erroneous narrative of Fort Hood and the U.S. Army that grew exponentially." It should also be noted that the report found that SPC Guillén did experience sexual harassment, but she did not make an official report and it did not involve SPC Robinson. There were two incidents; one involved an invitation in Spanish to participate in what she translated to be a "threesome," and the other involved an incident during a field exercise when someone conducting a patrol happened upon her while she was conducting personal hygiene, which SPC Guillén felt was not accidental. There is no evidence to connect these events to SPC Robinson or his motive for murder, which based on SPC Robinson's girlfriend's statement (who is being charged in connection with her role in disposing of the remains), in which she indicated that SPC Robinson was motivated by fear of disclosure of SPC Robinson's relationship with a married woman. Unlike sexual assault, the Army's criminalization of adultery is not material for viral social media campaigns. So it is unlikely that the actual motive behind the senseless murder and horrific dismembering of SPC Guillén's remains will ever receive any discussion in the mainstream media, who simply took the allegations of sexual harassment for granted and ran with it. On the other hand, the Army's inability to deal with false publicity spreading through viral social media - and consequently influencing mainstream media - will likely continue to be exploited by not only the self-serving activism of those who have no qualms about exploiting a deceased Soldier's name for their own agendas and profit, but also by adversaries who surely took note of this incident as yet another illustration of the ease with which the information environment can be manipulated to achieve a desired result, even contrary to objective facts. Whatever the merits of the Fort Hood report or critiques of the effectiveness of the SHARP program may be, and whether or not SPC Guillén experienced unrelated events of sexual harassment, it is clear sexual harassment had nothing to do with the murder that became the military's #MeToo moment. Christian WellischGuest Editor's Note: I do not understand how activists can be "self-serving" on this issue, or how they are profiting. But Wellisch's point about the phenomenon of social media narratives in general seems clearly right.
"All U.S. jurisdictions recognize individual self-defense as an inherent right belonging to each person. As an inherent right, self-defense is rooted firmly in natural law, as opposed to positive law, which entails a revocable grant from a sovereign. This article contends that prior legal recognition of such an inherent right precludes a sovereign from unilaterally limiting an individual military member’s exercise of or claim to self-defense. The story of U.S. Marine Corps Medal of Honor recipient Sergeant Dakota L. Meyer serves as a vehicle for the argument that the U.S. military is improperly limiting the right of individual self-defense and the closely related doctrine of defense of others. In support of this contention, the scope of individual self-defense guaranteed by the criminal justice systems of the U.S. military and a majority of states is compared with the scope of self-defense permitted for U.S. military personnel operating in a foreign battlespace."
From SELF-DEFENSE UNDER SIEGE: CREEPING CRIMINALIZATION OF INDIVIDUAL SELF-DEFENSE IN THE U.S.MILITARY, by Brian Bengs. Gen. Milley has put the fox among the chickens? Gen. Mark Milley, chairman of the Joint Chiefs of Staff and senior military adviser to the president, said Monday he is now open to a proposal that would take decisions on sexual assault prosecutions out of commanders' hands, AP reports. Please join Global Military Justice Reform on Monday at 0900 East Coast Time, for Town Hall 15. Zeke Kennen will speak about the latest changes to Art. 66, UCMJ, concerning factual sufficiency review. This important event is co-sponsored by CAAFlog. (I should note that the Town Halls are frequented by international visitors who bring different perspectives to the discussion.)
https://globalmjreform.blogspot.com/2021/04/town-hall-15-factual-sufficiency-review.html https://us02web.zoom.us/j/82828030678?pwd=SFZQOVhjQ210dXZPbHJJblRONnJWdz09 Meeting ID: 828 2803 0678 Passcode: 298665 One tap mobile +16468769923,,82828030678#,,,,*298665# US (New York) +13017158592,,82828030678#,,,,*298665# US (Washington DC) Dial by your location +1 646 876 9923 US (New York) +1 301 715 8592 US (Washington DC) +1 312 626 6799 US (Chicago) +1 408 638 0968 US (San Jose) +1 669 900 6833 US (San Jose) +1 253 215 8782 US (Tacoma) +1 346 248 7799 US (Houston) Meeting ID: 828 2803 0678 Passcode: 298665 Find your local number: https://us02web.zoom.us/u/kcTozfF4ku See you on Monday! Bring a friend. "The ECOWAS court has delivered judgment in a suit filed by an aircraftwoman who was raped by her superior officer and dismissed from the Nigerian Air Force after she lodged a complaint. The court awarded $200,000 (N90 million) to the applicant (name withheld). In addition to the monetary awards, the court "mandated the Air Force to investigate and prosecute Vibelko for the rape of the victim." (Emphasis added.) In the Sahara Reporters article, further down it gives this information, "An order of this Honourable Court compelling the defendant, its agents, organs, servants, privies or by whatever name called to pay over to the Applicant the sum of $20, 000,000.00 (about N9 billion) only as aggravated and punitive damages that will serve as a deterrent to the defendant. Cross-posted with GMJR, cheers, PC.
CONGRESS
The Military Justice Improvement & Increasing Prevention Act was "docketed" with Senate yesterday. The copy we have is undergoing some "administrative" corrections and will be posted as soon as we get it. ACCA United States v. Batissa. A rather short order denying a writ of mandamus that the court order Appellant’s record of trial to be immediately filed with the court. Will we see more of these? Greetings all, here is the much awaited new proposal introduced 29 April 2021 for change.
This Act may be cited as the "Military Justice Improvement & Increasing Prevention Act." Standing by for comments. Cheers, Phil Cave. (Lesson learned, you can't post Word documents, they have to be in .pdf) "A case can be made for the ironic proposition that, by achieving something closer to parity with the civilian courts, the long-term success of the vision I impute to Judge Everett sounded the death knell for the current system—an increasingly Lilliputian jurisdiction[70] (actually a congeries of sibling micro-jurisdictions applying the same statute but wearing different uniforms) that generates so few cases and whose claim to specialization is so eroded that it cannot realistically expect to survive in its current form over the long term. Put another way, did he lose the war by winning it?"
Full article here. Two events today of note announced by Protect Our Defenders. This is it. Today is the big day. In United States v. Furth , Judge Ohlson writes for the court finding no prejudice, while Judges Maggs and Hardy dissent and argue that a Dubay hearing was required before the court can determine prejudice or lack thereof. A military judge sitting as a general court-martial convicted Appellant, pursuant to his pleas, of one specification of absence without leave (AWOL) and one specification of wrongful appropriation. The convening authority approved Appellant’s adjudged sentence of a reprimand, confinement for three months, and dismissal from the service. The United States Army Court of Criminal Appeals (CCA) affirmed the findings and only so much of the sentence as provided for confinement for three months and a reprimand. Topic: CAAFlog: A Discussion Regarding the Civilian-Military Defense Counsel Relationship
Time: Apr 27, 2021 12:00 PM Eastern Time (US and Canada) Join Zoom Meeting https://hofstra.zoom.us/j/95999310865 Meeting ID: 959 9931 0865 One tap mobile +16465588656,,95999310865# US (New York) +13126266799,,95999310865# US (Chicago) Dial by your location +1 646 558 8656 US (New York) +1 312 626 6799 US (Chicago) +1 301 715 8592 US (Washington DC) +1 669 900 6833 US (San Jose) +1 253 215 8782 US (Tacoma) +1 346 248 7799 US (Houston) Meeting ID: 959 9931 0865 Find your local number: https://hofstra.zoom.us/u/ao0mUr3e "Orders Granting Petition for Review
No. 21-0069/AF. U.S. v. Jerard Simmons. CCA 39342. 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 MILITARY JUDGE ERRED IN ALLOWING THE GOVERNMENT TO MAKE A MAJOR CHANGE TO A SPECIFICATION, OVER DEFENSE OBJECTION – ALMOST TRIPLING THE CHARGED TIME FRAME – AFTER THE COMPLAINING WITNESS'S TESTIMONY DID NOT SUPPORT THE OFFENSE AS ORIGINALLY CHARGED AND THE PROSECUTION HAD RESTED ITS CASE. Briefs will be filed under Rule 25.* * The Clerk of the Court is ordered to seal pages 11-14 of the record of trial (Military Rule of Evidence 412 hearing). No. 21-0158/AR. U.S. v. Floyd C. Guyton, Jr. CCA 20180103. 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 issues: I. WHETHER APPELLANT WAS DENIED THE RIGHT TO A SPEEDY TRIAL UNDER RCM 707 AND THE SIXTH AMENDMENT TO THE CONSTITUTION. II. WHETHER THE UNITED STATES ARMY COURT OF CRIMINAL APPEALS ERRED BY PURPORTING TO AFFIRM "FORFEITURE OF ALL PAY AND ALLOWANCES" WHERE THE CONVENING AUTHORITY DISAPPROVED SUCH PUNISHMENT. SEE ARTICLE 66(c), UCMJ. Briefs will be filed under Rule 25 on Issue I only." "The review panel said that for certain special victims crimes, designated independent judge advocates reporting to a civilian-led office of the Chief Special Victim Prosecutor should decide two key legal questions: whether to charge someone and, ultimately, if that charge should go to a court martial, the officials said. The crimes would include sexual assault, sexual harassment and, potentially, certain hate crimes....The officials said other initial recommendations sent to Austin seek to professionalize the workforce involved in the cases, calling for a military justice career track for prosecutors, judges, investigators and victims’ advocates. They also recommended improvements in allowing victims to get protective orders, and said there should be a set timeline for the justice process."
Link here. Here is a link to the "I am Vanessa Guillen Act." for potential comparison once a public copy of the IRC report becomes available. A guess, but we are not likely to see a FR notice for public comment initially, if at all. Update from DoD PAO after FOIA request. The document referred to in the article is pre-decisional and not available for public release while deliberations continue. I can share the following, attributable to John Kirby, Pentagon Press Secretary: We can confirm that Lynn Rosenthal, Director of the Independent Review Commission on Sexual Assault, delivered to Secretary Austin today an initial set of recommendations. These particular recommendations referred to the accountability line of effort. The Secretary will now review the recommendations and consult with service leaders. The Secretary has asked the services to provide their candid assessment and feedback of these initial recommendations by the end of May. Cheers PC&BF There are few times that I am left baffled by a lower court's reasoning, Mader is one of those. CAAF correctly reverses the NMCCA, remanding Appellant's case "to determine whether Appellant’s mistaken belief that the junior Marines consented was reasonable, and if so, whether Appellant established that his conduct was precipitated by his mistaken belief that his victims consented. In an opinion by Judge Hardy, totaling just seven pages, CAAF makes clear that they are not persuaded to deviate from their general rule that consent is a defense to simple assault. Sergeant Thomas E. Mader was charged with four specifications of simple assault consummated by battery, three of those specifications related to his burning of cigarettes on junior Marines at a farewell party. These three specifications are the reason for CAAF's review. On appeal the NMCCA held that Appellant “had an honest, though mistaken, belief that the junior Marines consented to being burned by the cigarette.” However, the NMCCA affirmed Appellant's conviction, also holding that Appellant's actions could have been charged as hazing, to which no defense as to consent existed, and that it is contrary to public policy to allow victims to consent to cigarette burns. It is for these two reasons that CAAF reverses the NMCCA. Judge Hardy notes the important facts, Appellant, while he could have been charged with hazing by the government, was ultimately charged with simple assault. This charging decision by the government allowed Appellant to have a defense as to consent, the government cannot now allege that Appellant's assaults were a part of hazing and then deny Appellant a defense to his charged crimes. I would call this a steadfast principle that would not have to be reiterated, but yet it is the main ruling in this case. Additionally, CAAF finds the NMCCA's public policy argument, "untenable." CAAF's reasoning is simple. First, CAAF has never recognized a public policy interest that overcomes the principle that consent is a defense to simple assault. Second, the NMCCA did not specify a public policy reason that would support their finding, let alone a compelling one. This case screams government overreach but CAAF makes clear that this will not sail. Mader Opinion here. Elizabeth M. BerecinManaging Editor A Better Way Forward for Prosecuting Military Sexual Assaults
"The current system for prosecuting members of the U.S. military for sex crimes is flawed, writes Kevin Carroll, a U.S. Army reservist who served as a military intelligence officer in Afghanistan and Iraq. Purely military offenses should remain in military court, he says, but Congress should allow other crimes to be tried in federal and state court systems." The relevant passage: "System Has Design Flaws The design of the military justice system is inherently problematic. Commanders, who are non-lawyers, decide whether to prosecute, an authority we do not give governors or mayors (and try to keep distanced from presidents). Commanders evaluate prosecutors for promotion, in a way in which governors and mayors do not evaluate attorneys general or district attorneys. Commanders also pick the service members who serve as jurors at the courts-martial they convene, which is unthinkable in a civilian context. The temptation to exercise “unlawful command influence” over the disposition of a case is often irresistible to the type-A personalities who wear stars. While commendable efforts are made to insulate military judges and defense counsel from commanders’ pressure, and these good professionals take their ethical responsibilities seriously, the uniformed bar is insular, and the path to advancement narrow. There is no military correlate to the independence of a life-tenured Article III judge (or a New York state judge with a 14-year term, for example), or a federal defender who only reports to the chief judge of a circuit court of appeals. Few active duty military lawyers have opportunities to clerk for civilian judges, or move between private practice, academia, or posts elsewhere in government, experiences which ideally broaden their civilian counterparts’ perspectives. Despite excellent JAG lawyers’ talents, military practice tends over time to lead toward more parochial views. Judge advocates serve crucial roles beyond adjudicating criminal cases—in administrative and operational law, for example. And there is an irreducible number of military cases that JAGs alone can handle. Some proceedings unavoidably take place in war zones. Others are for crimes that have no counterpart in Title 18 of the U.S. Code, and appear only in the punitive articles of the Uniform Code of Military Justice (malingering, desertion, missing movement, disrespect, and misbehavior before the enemy). Purely military offenses still ought to be tried by, and in front of, service members. But for crimes that can be tried at least as well by the federal and state court systems, including most sex crimes, Congress should tell the military to let civilian attorneys take the lead." Link here. SCOTUS (Courtesy of SCOTUSBlog) On 20 April 2021, the court heard oral argument in Greer v. United States on this issue, Whether, when applying plain-error review based on an intervening United States Supreme Court decision, Rehaif v. United States, a circuit court of appeals may review matters outside the trial record to determine whether the error affected a defendant’s substantial rights or impacted the fairness, integrity or public reputation of the trial. Appellant’s brief introduction, When Mr. Greer was charged with, tried on, and convicted of possessing a firearm as a convicted felon, unanimous circuit precedent held that knowledge of one’s status as a person prohibited from possessing a firearm was not an element of 18 U.S.C. § 922(g). At trial, therefore, the government did not submit evidence or argue to the jury that Mr. Greer knew his status at the time of the offense, and the jury made no finding on that issue. While Mr. Greer was on direct appeal, this Court overturned the unanimous circuit precedent and held that such knowledge is an essential element. Rehaif v. United States, 139 S. Ct. 2191, 2197 (2019). The Eleventh Circuit affirmed Mr. Greer’s conviction on plain-error review. J.A. 116–22. By considering materials outside the trial record—materials that were never admitted into evidence nor presented to the jury—the Eleventh Circuit decided in the first instance what a jury “could have” found as to the knowledge-of-status element. Id. at 121. Mr. Greer challenges that novel approach to appellate review. Courtesy of DMLHS, on 21 April 2021, the Supreme Court granted certiorari in, Hemphill v. New York. Noted Confrontation law expert Jeffrey Fisher represents the appellant. From the petition, A litigant’s argumentation or introduction of evidence at trial is often deemed to “open the door” to the admission of responsive evidence that would otherwise be barred by the rules of evidence. The first of several reasons for granting the writ has itself three parts. Federal and state courts are deeply divided over the question presented.. And, CAAF anyone?
"No. 21-0135/AF. U.S. v. D'Andre M. Johnson. CCA 39676. 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 issues: I. WHETHER THE MILITARY JUDGE PLAINLY ERRED BY PERMITTING TRIAL COUNSEL TO ARGUE FACTS NOT IN EVIDENCE. II. DURING CLEMENCY, APPELLANT DETAILED THE DEPLORABLE CONDITIONS OF HIS POST-TRIAL CONFINEMENT. ON APPEAL, HE PROVIDED SUPPLEMENTARY INFORMATION ON THESE CONDITIONS TO SUPPORT HIS CLAIMS OF CRUEL AND UNUSUAL PUNISHMENT AND TO SEEK SENTENCE RELIEF. DID THE LOWER COURT ERR WHEN IT DECIDED IT COULD NOT CONSIDER THIS SUPPLEMENTARY EVIDENCE FOR ITS SENTENCE APPROPRIATENESS REVIEW? No briefs will be filed under Rule 25." Elizabeth M. BerecinManaging Editor Save the Date: Panel on the Civilian-Military Defense Counsel Relationship -- with a focus on ethics4/20/2021 Given the great deal of interest in the discussion regarding relations between civilian and military defense counsel, CAAFlog will host a one hour Zoom panel and Q&A relating to that subject. Panelists TBA. This will occur one week from today, at noon EST. Those wishing to attend or participate anonymously should join as guests (not through their personal Zoom account) and should anonymize their names.
Topic: CAAFlog: A Discussion Regarding the Civilian-Military Defense Counsel Relationship Time: Apr 27, 2021 12:00 PM Eastern Time (US and Canada) Join Zoom Meeting https://hofstra.zoom.us/j/95999310865 Meeting ID: 959 9931 0865 One tap mobile +16465588656,,95999310865# US (New York) +13126266799,,95999310865# US (Chicago) Dial by your location +1 646 558 8656 US (New York) +1 312 626 6799 US (Chicago) +1 301 715 8592 US (Washington DC) +1 669 900 6833 US (San Jose) +1 253 215 8782 US (Tacoma) +1 346 248 7799 US (Houston) Meeting ID: 959 9931 0865 Find your local number: https://hofstra.zoom.us/u/ao0mUr3e Southwestern Law School is hosting (with 1 hr CLE) a military justice panel discussion TUESDAY APRIL 20th at 6:00PM PST (9pm EST). Click here to register.
"NIMJ's Prof. Rachel VanLandingham, Protect Our Defender's President Don Christensen, Community Veterans Justice Project's founder & Executive Director Jodi Galvin, and NIMJ's Prof. Josh Kastenberg will be discussing everything from differences between military and civilian criminal justice, anticipated reforms, the military justice system's (mis)handling of sexual assault, pressing veterans' issues and more." This week, Scholarship Saturday is pleased to present the work of 3rd-year UMass Law School student Alexandria Murphy. Her piece, starting after the break, introduces an article written by UC Berkley law professor Orin Kerr concerning the constitutionality of the internet content preservation statute that is so often used by military law enforcement agencies, especially when investigating online crimes.
- Isaac Kennen, Scholarship Editor |
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