Link here (paywall).
"Some reforms have been instituted, but while they are laudable, problems persist. Advocates for survivors as well as some military experts say the fundamental issue lies with granting commanding officers, who have an inherent conflict of interest, the authority to investigate and prosecute wrongdoers. Legislation that would provide for investigation by independent units with special training has been championed by Sen. Kirsten Gillibrand (D-N.Y.), but despite bipartisan, majority support it has twice failed to overcome filibusters backed by fierce lobbying from the Pentagon."
5 Comments
Dateline: 11 December 2020; a summary of the week.
Of note: 1 December 2020 saw a change to Federal Rule of Evidence 404(b). That means, absent Presidential action Mil. R. Evid. 404(b) will change 18 months from now. SeeMil. R. Evid. 1102.
Over at GMJR, editor Gene Fidell makes his case: he compares the military justice system with a jurisdiction of comparable size (Kansas), noting that Kansas's judges have a caseload of 194.4 per year, while military judges have a caseload of 20.75 per year.
Link here. Analysis forthcoming. Here are Eugene Fidell's initial thoughts about the Gorsuch concurrence: "Justice Neil Gorsuch concurred, while noting his continuing view that the Court lacks direct appellate jurisdiction over decisions of the Court of Appeals. He wryly cites an earlier case, Ortiz v. United States, in which Justice Alito had expressed the same view in dissent. If he stands his ground, the result will be that he will never vote to grant certiorari in a CAAF case. That means a petitioner (government or defense) will need to get four votes out of eight, rather than four out of nine, for a grant. Given the Solicitor General's higher certiorari batting average, this shoe will mostly pinch the accused. [Apologies for the mixed metaphor.] So cert just got even harder--a dollop of nasty icing on the current discriminatory cert statute."
The AFCCA affirmed the decision and sentence of Staff Sergeant Jesse Cool, finding no prejudicial error.
Cool opinion here. The NMCCA affirmed the conviction and sentence of Quartermaster Third Class Kenneth Olaya, finding no prejudicial error.
Olaya Opinion here. "An investigative panel looking into violent crimes and abuse at the Fort Hood Army base in Texas said on Tuesday it found a command structure that was “permissive” of sexual assaults. As a result, over a dozen commanders have been suspended or relieved and Army Secretary Ryan McCarthy said he expects to make widespread changes in light of the panel’s finding." Link. Read the report here.
Editor's note: Tom Fricton notes below that the elimination of de novo factual sufficiency at the CCAs has now been approved by Congress's conference committee. This issue was discussed at length on here over the summer. See also here.
Update 12/8/2020: Trump's OMB has notified Congress that he intends to veto the NDAA. On 3 December 2020 a conference committee of both houses of Congress reported out a version of the Mac Thornberry National Defense Authorization Act for Fiscal Year 2021, better known as the NDAA 2021. The forty-five hundred page behemoth still needs to be voted on by both houses, and is still subject to presidential veto due to a shortage of votes in the house for a veto-proof majority. There are a number of issues that may impact military justice that bear notice if the bill becomes law. Over the course of a few posts, these changes will be discussed. "No. 20-0366/AR. U.S. v. Thomas M. Adams. CCA 20130693. 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 2016 AMENDMENTS TO ARTICLE 43, UCMJ, RETROACTIVELY MADE THE STATUTE OF LIMITATIONS FIVE YEARS FOR INDECENT LIBERTIES AND SODOMY OFFENSES CHARGED UNDER ARTICLES 134 AND 125, UCMJ, RESPECTIVELY. Briefs will be filed under Rule 25." The AFCCA affirmed the findings and sentence of Senior Airman Christopher D. Clark-Bellamy, finding no prejudicial error in Appellant's raised three assignments of error.
Clark-Bellamy opinion here. "Orders Granting Petition for Review
No. 20-0195/AR. U.S. v. Jeremy N. Navarette. CCA 20160786. 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 ARMY COURT ERRONEOUSLY DENIED APPELLANT'S REQUEST FOR A POST-TRIAL R.C.M. 706 INQUIRY BY REQUIRING A HEIGHTENED THRESHOLD SHOWING UNDER R.C.M. 1203. Briefs will be filed under Rule 25. No. 21-0017/AR. U.S. v. Clovis H. Castro. CCA 20190408. 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 MILITARY JUDGE ABUSED HIS DISCRETION IN ACCEPTING APPELLANT'S GUILTY PLEA TO SPECIFICATION 1 OF CHARGE II ("STEAL GAS, OF A VALUE LESS THAN $500, THE PROPERTY OF THE GENERAL SERVICES ADMINISTRATION"). Briefs will be filed under Rule 25. No. 21-0040/AR. U.S. v. Leshan Jones. CCA 20190254. 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 specified 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." Christmas catalogues have been out for weeks and it is time to think of holiday gifts—a book you say. My recommendations. 1. David Mellinkof, Conscience of a Lawyer. 2. Daniel J. Kornstein, Kill All the Lawyers: Shakespeare's Legal Appeal. 3. Dan Abrams, John Adams Under Fire: The Founding Father's Fight for Justice in the Boston Massacre Murder Trial. 4. Jay Wexler, The Odd Clauses: Understanding the Constitution Through Ten of its Most Curious Provisions. Senator Graham appears in one chapter. Who would have thought the Incompatibility Clause would arise in a court-martial appeal case. See United States v. Lane, 64 M.J. 1 (C.A.A.F. 2006). 5. Lewis Carroll, Alice’s Adventures in Wonderland (especially if you can get the Norton Critical Edition). Do you have a book or two to recommend? Phil CaveMJ Editor Dateline: 4 December 2020; a summary of the week.
SUPREME COURT
On December 1, 2020, CAAF heard oral arguments in United States v. Uribe, on the following issue:
WHETHER THE LOWER COURT ERRED IN FINDING THE MILITARY JUDGE DID NOT ABUSE HIS DISCRETION IN DENYING A JOINT MOTION TO RECUSE. Uribe oral arguments and briefs here. Today, CAAF will hear oral arguments in United States v. Harpole. Seaman Koda M. Harpole's case is based upon two assignments of error:
(1) whether the victim advocate was required to advise Appellant of his rights under Article 31(b), UCMJ?; and (2) whether the trial defense counsel was ineffective when they failed to move to suppress Appellant's statement to the victim advocate when such statement was taken in violation of Article 31(b), UCMJ? Harpole briefs here. This morning I enjoyed a nostalgic in-person visit to CAAF's arguments, which had an elevated quality thanks to excellent counsel (especially for Upshaw). I ran into Upshaw's attorneys on the stairs and we had an interesting discussion about Judge Sparks's line of questioning. The conundrum is this: how can an error be tested for whether or not it meets a burden (HBRD) if the error is itself an erroneous description of a burden (Hills--preponderance for past acts). See Sullivan v. Louisiana, 508 U.S. 275, 281 (1993) ("[T]he essential connection to a 'beyond a reasonable doubt' factual finding cannot be made where the instructional error consists of a misdescription of the burden of proof, which vitiates all the jury's findings. A reviewing court can only engage in pure speculation—its view of what a reasonable jury would have done. And when it does that, 'the wrong entity judge[s] the defendant guilty'” ) (erroneous reasonable doubt instruction is structural error). Brenner FissellEIC Today, December 1, 2020, CAAF will hear oral arguments in United States v. Upshaw. CAAF granted review on the following two issues:
(1) WAS THE MILITARY JUDGE’S IMPROPER PROPENSITY INSTRUCTION, IN VIOLATION OF UNITED STATES V. HILLS, 75 M.J. 350 (C.A.A.F. 2016), HARMLESS ERROR BEYOND A REASONABLE DOUBT?; AND (2) WAS A RECUSED JUDGE'S SUBSTANTIVE PARTICIPATION IN APPELLANT'S CASE AFTER HE RECUSED HIMSELF HARMLESS ERROR? Upshaw briefs here. Today, December 1, 2020, CAAF will hear oral arguments in United States v. Uribe. CAAF granted Staff Sergeant Ryan G. Uribe's petition for review on the following issue: WHETHER THE LOWER COURT ERRED IN FINDING THE MILITARY JUDGE DID NOT ABUSE HIS DISCRETION IN DENYING A JOINT MOTION TO RECUSE Conviction & Sentence Appellant was convicted of one specification of Art. 120, UCMJ, for sexual assault on divers occasions. He was then sentenced by the military judge to a dishonorable discharge, 20 months confinement, reduction to E-1, and a reprimand. Uribe briefs here. Editor's note: A recap of Uribe's oral arguments will be posted in the coming days. Elizabeth BerecinManaging Editor In light of the responses to the recent Task and Purpose article, I thought a look at court-martial numbers and experience in the Air Force might be appropriate. The data comes from the annual reports available on the CAAF website and on the Joint Service Committee on Military Justice’s website and my review of official biographies.
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