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Dateline: 11 September 2020 (as of 0900). CAAF Reminder, CAAF is back to in-person oral argument. The Navy and Army have been back to in-person arguments since August. [READ MORE] "No. 36803. In the matter of Cullen Drew Elrod. It appearing that the above-named attorney is a member of the Bar of this Court and that they have been indefinitely suspended by the Judge Advocate General of the Army from the practice of law in Army courts-martial and the U. S. Army Court of Criminal Appeals, and considering Rule 15(b), Rules of Practice and Procedure, U.S. Court of Appeals for the Armed Forces, it is ordered that Cullen D. Elrod is disbarred from the practice of law before this Court effective the date of this Order."
Next Friday the DC Circuit will hear argument in a case stemming from the military commissions, but which has broader applicability to any case involving classified information. A commissions defense attorney (Phil Sundel) was denied access to a closed hearing in a GTMO commission case despite possessing a TS/SCI clearance (he was not representing the accused in the specific proceeding). He is now before the DC Circuit on the collateral order doctrine asserting a First Amendment right to view the proceedings as a member of the public. Here are the brief and response, and a more recent order from the court indicating that it is concerned with standing and jurisdiction. Brenner FissellEIC The NMCCA, finding no prejudicial error, affirmed the findings and sentence of Sgt Matthew W. Faus.
Opinion here. The below Petition was filed Friday. ![]()
CAAF will resume in-person arguments this fall. This is great news: a courtroom setting is easily compliant with social distancing, and these are criminal cases where an accused deserves to have a fair day in court. ![]()
Brenner FissellEIC On August 12, 2020, ACCA set aside the conviction and sentence of Sergeant First Class Corey L. Bruner (Appellant). Opinion here.
Bergdahl today filed the below Petition for Reconsideration. The defense team appears to have added eminent scholar/litigator Steve Vladeck, as well as the senior leadership of the Army's appellate defense shop. The chorus of critics of the decision grows larger, with former SECDEF Hagel weighing in over the weekend. I am not aware of any reasoned defenses of the opinion or the outcome. Would anyone like to make the case? ![]()
Brenner FissellEIC UP PERISCOPE
Dateline: 4 September 2020 (as of 0900). CAAF 02092020—the court decided (4-1) United States v. Watkins. The court granted review on three issues and found a denial of a right to counsel of choice. The NMCCA decision is here [https://www.jag.navy.mil/courts/documents/archive/2019/WATKINS_201700246_UNPUB.pdf].
On August 4, 2020, ACCA set aside findings of guilt for some specifications, and affirmed findings of guilt as to the rest, against Sergeant First Class Jeremy S. Nix (Appellant). Opinion here.
The ACCA provides a formulaic, but clear description, of a multiplicity analysis under a guilty plea or plain error: the facially duplicative standard. CAAF, in a 4-1 decision with Judge Maggs dissenting, reversed the NMCCA and set aside SSgt Watkins' findings and sentence without prejudice.
Watkins' opinion here. The NMCCCA decided In re Jordan, M.J. , 2020 WL 5047423 (NMCCA 2020)(En Banc), on 27 August 2020. At first blush, the decision seems innocuous enough–another sex offender seeking redress because of an alleged victim “recantation.” This essay does not address the factual issues of guilt or innocence. Rather, it addresses the subtle, death-knell of military habeas corpus or alternatively, the unconstitutionality of Article 76, UCMJ.
The NMCCA, finding no prejudicial error in Sgt Maurice J. Lewis' assignments of error, affirmed his findings and sentence. Opinion here.
Those who saw this may have wondered what it was about: "No. 20-0352/AF. John R. Demos, Appellant v. United States, Appellee. CCA 2020-03. On consideration of the writ-appeal petition it is ordered that the writ-appeal petition is dismissed for lack of jurisdiction, and that further filings submitted to this Court will be returned without any action by this Court." Our reliable research staff has tracked down Mr. Demos's internet trail of frivolous filings in courts across the country. Here is just one, from the District of the Virgin Islands, which gives us a sense of the type of claim CAAF may have had to deal with. Demos is a state prisoner in Washington, and claims that his incarceration violates the Geneva Convention due to his allegiance to "the Vatican, and the Rothschild family of France." Brenner FissellEIC Since this is "CAAFlog" and not "Bergdahl-log" we won't be saying much more about last week's decision. Two remaining items are worth mentioning: 1. The following statement by Bergdahl's trial prosecutor has been making the rounds. 2. It seems that the readers generally disagree with me and with the dissenters regarding the decision. Here are the results of our anonymous, non-scientific poll (in which the system does not prevent multiple voting, etc.). As with alcohol, "tolerance" of command influence differs from person to person: Brenner FissellEIC The AFCCA affirmed the findings and sentence of Airman First Class Dillon R. Wiseman, holding that he warranted no relief for his four assignments of error. Opinion here.
Tech Sgt Heeter was not given 10 days after the SJAR to submit clemency matters. As a result of this black letter violation of RCM 1105(c)(1), the AFCCA sent his case back to the convening authority for appropriate post trial processing.
Opinion is available here. Sometimes cases can be decided like math problems—a legal rule, when applied to the facts, makes clear the outcome. At other times, it seems as if the law provides almost no guidance to the judge, giving only a vague standard that different people might apply differently. The difference between the two is the relative “determinacy” of the relevant law. Cases of the first type are undoubtedly easier for outsiders to evaluate as “correct” or not. Cases of the second type are more difficult to evaluate in that mathematic manner, but their reduced determinacy in some sense invites a higher-order evaluation that would not be permissible in a case where a rule is strongly determinate. Put another way, when rules do not strongly constrain judicial decision making, we are freer to consider the substantive justice of the decision or, say, its implication for future cases and for the court as an institution. Apparent unlawful command influence is a doctrine in this second category. The test is one of the vaguer legal tests one might ever find: whether the official conduct “place[d] an intolerable strain upon the public’s perception of the military justice system and that an objective, disinterested observer, fully informed of all the facts and circumstances, would…harbor a significant doubt about the fairness of the proceeding.” 76 M.J. at 249. Thus, a court reviewing a case for apparent unlawful command influence is explicitly licensed to consider “public perception[s]”[1] of “fairness.” Given such a doctrinal license, and given a case involving the most egregious and high level politicization of a criminal case in recent memory, CAAF had a chance in Bergdahl to make a proclamation about its institutional status and about the military justice system more generally—to proclaim that the system was truly independent of command influence (especially of politician-commanders), and that it would stand as the guarantor of that independence. CAAF had the chance to go on record that it would not condone criminal punishment resulting from a politicized process. Such a message in this era of politicized military justice—this era in which a president criticizes the light sentences of some, but pardons others and invites them on the campaign trail—would have been most welcome. Of course, CAAF did not do that. It descended into a burden-shifting maze, cloaking a judgment-call in technocratic language. And even when one descends into the maze with the court, one must conclude that it took wrong turns. Most significantly, the court sub silentio applied the actual UCI test when the question at bar was apparent UCI. The evidence for the claim that the public would perceive no unfairness, according to the court, was that the result did not seem to be affected by the UCI. The case would have been referred to a GCM regardless of the comments, and in any event he pled guilty and received a very light sentence. What this misses is that “fairness” is more capacious a concept than getting a fair result—it is also about fairness in the process. Moreover, one should not so quickly assume away the inevitability of the result. The court suggests that the most important factor (“it cannot be emphasized strongly enough”) in determining absence of unfairness was Bergdahl’s guilty plea. Op. at 20. But guilty pleas take place against a coercive backdrop of government threats, and the court should not have been so easily comforted that a plea erases any procedural unfairness. Indeed, legions of academic studies support the opposite conclusion—that many pleas are themselves the result of an unfair process. See generally, Natapoff, Punishment Without Crime; Bibas, The Machinery of Criminal Justice. Bergdahl’s plea was made in the shadow of the official comments and the public controversy. Two judges realized what was at stake. Judge Sparks’s dissent details a history of the system and of the court that shows that both Congress and the early CMA judges saw UCI as a threat, and that in some sense the whole point of the court was to mitigate it. Chief Judge Stucky went to the heart of the matter: the commander-in-chief’s “vicious and demeaning” remarks were heard by various decisionmakers, and the resultant strain on the system was therefore “intolerable.” In the words of John Hart Ely, “You don't need many heroes if you choose carefully.” Ely, Democracy and Distrust (regarding Earl Warren). [1] One might expect that in a case considering public perceptions, amicus briefs from members of the public would be especially welcome. In this case, though, the court inexplicably rejected two academic amicus briefs: one from myself and LOAC editor Michel Paradis, and a second from eminent historians Jonathan Lurie and Richard Kohn. This is a highly unusual practice for an appellate court. Brenner FissellEIC Did McCain and Trump's Conduct Place an Intolerable Strain on the Public’s Perception of the Military Justice System?
Take the Anonymous Poll Here. Really...we can't see your name. UP PERISCOPE
Dateline: 28 August 2020 CAAF On 27 August 2020, CAAF issued its opinion in United States v. Bergdahl, an analysis is being written—standby.
In an important decision clarifying the extent to which the law of unlawful command influence applies to senior civilians, a divided CAAF affirmed the Army Court of Criminal Appeals in United States v. Bergdahl, finding that statements made by the late Senator John McCain and President Trump did not constitute apparent unlawful command influence.
On Tuesday, August 25th, CAAF granted the following petition for review. No. 20-0289/AR. U.S. v. Kevin M. Furth. CCA 20180191. 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 APPELLANT RECEIVED EFFECTIVE ASSISTANCE OF COUNSEL WHEN HE WAS ERRONEOUSLY ADVISED THAT HIS PENDING RESIGNATION REQUEST, IF APPROVED, WOULD VACATE HIS GUILTY PLEA. CAAF reviews U.S. v. Furth, on an issue that was personally submitted to ACCA pursuant to U.S. v. Grostefan. Furth, on appeal to ACCA, argued that his plea was improvident because he believed that acceptance of his RFGOS would vacate his findings and sentence and that the Secretary's approval of his RFGOS was an exercise of his power under Art. 74, UCMJ. Additionally, Furth submitted a Grostefan issue alleging that if the RFGOS did not set aside his findings and sentence, then he received IAC because he was advised that his plea would have that effect. ACCA only discussed Furth's Grostefan issue in a footnote, stating that they did not find any prejudice in his counsel's alleged deficiency. Furth's affidavit submitted to ACCA included the following language, "[i]f I had known that pleading guilty would have prevented me from fully benefitting from an approved RFGOS, I would not have pleaded guilty prior to receiving a decision on my RFGOS." However, ACCA was not persuaded by this statement, stating that Furth did not state that "he would have pleaded not guilty but for his counsel's advice regarding the effect of a RFGOS approved post-trial." Additionally, ACCA stated that it was "objectively reasonable" to accept the plea deal. CAAF now reviews ACCA's finding that Furth was not prejudiced by his counsel's alleged deficiency. ACCA's opinion here. Elizabeth BerecinResearch Fellow Global Military Reform Blog will hold its next Town Hall with Lieut. Col. Dan Maurer (West Point) who will speak on Going Deeper than the "Purpose" of Military Justice: Determining its Logic after Ortiz v. United States (Town Hall 7, Sept. 15, 2020, 0900 East Coast US Time). Please join us, and feel free to pass this invitation along to others who may be interest. The TH is open to all Join Zoom Meeting https://us02web.zoom.us/j/6935283348?pwd=bEdaSWw1dDViTU1CRDduRjJIUGdDdz09 Meeting ID: 693 528 3348 Passcode: BillyBudd (If Zoom asks for a password, it's BillyBudd. If that doesn't work, try 146093266) GMJR TH's have drawn participants from around the world. Should you join, please put your microphone on mute, to avoid the background noise interreference unless asking a question. Phil CaveThe AFCCA remanded Senior Airman Christopher P. Finco's case, after finding colorable prejudice in the convening authority's decision memorandum.
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