Don Rehkopf posted this as a comment regarding the Leach case, but it's worthy of highlighting:
"Three things: 1) If the Court were at all interested in stopping/preventing Brady violations, they could have and respectfully should have taken corrective action and done what needs to be done - indicate that such on-going issues will not be tolerated, period; 2) Blaming the Defense Counsel for the Brady violation for not having the crystal ball of precisely knowing what the complainant told the government, is even more problematic, if not downright disingenuous. If indeed the Court wanted to remedy Brady violations, then here was proof-positive (by the Court's own findings), of IAC; and, 3) Once again, this Court gives a "pass" to outrageous, improper arguments by the TC [cf. Voorhees], which brings to mind the words of federal judge Jerome Frank: "If we continue to do nothing practical to prevent such [prosecutorial] conduct, we should cease to disapprove it. For otherwise it will be as if we declared in effect, Government attorneys, without fear of reversal, may say just about what they please in addressing juries, for our rules on the subject are pretend-rules. If prosecutors win verdicts as a result of ‘disapproved’ remarks, we will not deprive them of their victories; we will merely go through the form of expressing displeasure. The deprecatory words we use in our opinions on such occasions are purely ceremonial.' Government counsel, employing such tactics, are the kind who, eager to win victories, will gladly pay the small price of a ritualistic verbal spanking. The practice of this court- recalling the bitter tear shed by the Walrus as he ate the oysters-breeds a deplorably cynical attitude towards the judiciary." United States v. Antonelli Fireworks Co., 155 F.2d 631, 661 (2nd Cir. 1946) (Frank, J., dissenting)." Recently, the CAAF granted review of United States v. Garcia. Below is a summary of the AFCCA's opinion and my view on whether the ruling is correct.
In response to recent calls for major reforms to the American military justice system, which are apparently based on continuing Congressional concerns about sexual assaults in the military, the authors present statistical data on sexual assaults from a number of sources: national crime statistics; military crime statistics; crime statistics from several states, and statistics from a university. The authors also present information on the tremendous strides that have been made in recent years to protect the rights of military victims of sexual assault, noting that some of those rights are not found in federal or state criminal justice systems. Finally, the authors conclude that the rate of sexual assaults in the military and the prosecution of those offenses is not out of line with the experiences of other civilian jurisdictions. They recommend that Congress take careful and very deliberative steps in deciding what, if any, major changes to make to the American military justice system. ![]()
David Schlueter & Lisa SchenckCAAF Rules 19(a)(7)(A): "Article 62, UCMJ, Appeals. Where a petition has been granted in a case involving a decision by a Court of Criminal Appeals on appeal by the United States under Article 62, UCMJ, 10 USC § 862, no further pleadings will be filed and the Court will, whenever practicable, give priority to such cases." Does anyone know the reasons for this practice, recently implemented in the Garcia grant? Brenner FissellEIC https://www.armfor.uscourts.gov/newcaaf/opinions/2019OctTerm/190437.pdf
At trial, the military judge denied a defense motion to suppress the results of a command authorized search. On appeal NMCCA found error and took corrective action. The Government appealed and CAAF had before it three issues. "I. Whether the lower court erred in overturning the military judge’s admission of evidence where the military judge found the official who authorized the search was the acting commander with full authority and control over the remain behind element, except for authority to impose nonjudicial punishment and convene courts-martial? II. Whether the lower court erroneously applied the exclusionary rule under Mil. R. Evid. 311(a)(3) by failing to appropriately balance the benefits of deterrence against the costs to the justice system, and thereby erred in overturning the military judge’s decision not to apply the exclusionary rule? III. Whether the lower court erred in finding the good-faith exception did not apply where this court has, in United States v. Chapple, 36 M.J. 410 (C.M.A. 1993), held the exception applies even when the individual issuing that search authorization lacked authority under Mil. R. Evid. 315(d)(1), and here law enforcement reasonably believed the acting commander was authorized to issue search authorizations?" In July 2018, Deshaun Allen (“Appellant”) was convicted in civilian court for theft and assault, conspiring with other Sailors to use cocaine aboard USS NIMITZ, using and distributing cocaine aboard USS NIMITZ, and using marijuana.
Appellant pleaded guilty by various methods, including by exceptions. For example, among other charges, Appellant was charged with “introduction and distribution of cocaine.” Appellant pleaded guilty to this charge by excepting the words “introduction and,” and therefore Appellant only pleaded guilty to distribution of cocaine. The military judge failed to address the excepted language in the announced finding. Appellant’s counsel did not object to this--rather, they explicitly stated the findings announcement was correct. Appellant’s R.C.M. 1105 submission raised two issues: (1) whether the military judge had improperly used evidence from Appellant’s co-conspirators’ cases to sentence Appellant, and (2) whether Appellant’s sentence was disproportionate to the actual harm caused by Appellant’s conduct. The Court also addressed whether the military judge’s error to address the excepted language materially prejudiced Appellant’s rights. The U.S. Air Force Court of Criminal Appeals affirmed Military Judge Jimenez’s finding that Brandon Leach had violated Article 120 of the Uniform Code of Military Judge, 120 U.S.C. § 920. Appellant Leach raised nine (9) issues on appeal, however the Court found that the Appellant was not prejudiced and that the Military Judge had correctly decided the case.
"No. 20-0262/AF. U.S. v. Kaleb S. Garcia. CCA 2019-07. On consideration of Appellant's petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862 (2012), it is ordered that said petition is granted on the following issue: WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN FINDING THAT THE MILITARY JUDGE ABUSED HER DISCRETION IN SUPPRESSING EVIDENCE OBTAINED AS A RESULT OF A SEARCH AND SEIZURE OF APPELLANT'S DNA. Pursuant to C.A.A.F. R. 19(a)(7)(A), no further pleadings will be filed." Lower court opinion. The primary issue appears to be the sufficiency of the search authorization. More discussion to come soon... Brenner FissellEIC Some highlights (please post any additional info you may have):
Prof. Wherry circulated this yesterday on the new SSRN Veterans & Military Law & Policy eJournal. You Catch More Flies with Honey: Reevaluating the Erroneous Premises of the Military Exception to Title VII -- Craig Westergard Abtract: Discrimination is a problem in the military. Though Title VII of the Civil Rights Act prohibits employment discrimination in the "military departments," courts have held that the statute does not apply to members of the military. The primary justification for this judge-made exception is that Title VII suits might have an adverse effect on military discipline. In their haste to condemn suits for military discrimination, however, courts tend to overlook the negative effects discrimination has on discipline, as well as the positive effects of diversity. This Note calls upon Congress to abrogate the military exception to Title VII in the alternative, it argues that courts should reconsider the exception in light of discrimination's true effects. In addition to its eroded policy foundations, the judicial exception to Title VII contradicts the ordinary language of the statute. The term "military departments" naturally includes servicepersons, who are employees, and there is no compelling reason to depart from the statute's ordinary meaning. The exception is also contrary to the statute's broad remedial purpose and much of the legislative history surrounding Title VII. The rationales the circuit courts use to conclude that members of the military cannot bring Title VII claims are inconsistent and contradictory, and the exception has resulted in confusion when applied to quasi-military personnel. As such, the military exception to Title VII should be abandoned — left in the past along with other vestiges of discrimination. Don Rehkopf has sent over a CLE he gave for NY lawyers on discovery obligations. The relevant section is uploaded here, with NY law redacted to avoid distraction. ![]()
Michel's post below, and Phil Cave's response, makes me wonder how often Brady violations occur at courts-martial. Then-Chief Judge Kozinski wrote in 2013: "There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it." United States v. Olsen, 737 F.3d 625, 626 (9th Cir. 2013) (Kozinski, CJ, joined by Pregerson, Reinhardt, Thomas, & Watford, dissenting from denial of rehearing en banc). Is the same true in the military? Brenner FissellEIC Military Commission Judge Penalizes Prosecution's Discovery Practices in United States v. Khan7/15/2020
On Monday, COL Douglas Watkins, the military judge presiding in the case of United States v. Khan ruled that the prosecution had systemically failed to meet "the spirit or letter of Article 46, 10 U.S.C. §949j, R.M.C. 701, or accepted standard practice in the military, it has created needless litigation and potentially delayed the resolution of this Commission." As a sanction, Judge Watkins gave the defendant, Majid Khan, a year of credit against the sentence the military commission will ultimately impose. Khan pled guilty in 2012 as part of a plea agreement in which he agreed to testify at the September 11th trial. As the September 11th case has dragged on over the intervening years, Khan's sentencing has been routinely postponed. The present controversy arose after the Secretary of Defense designated RADM (Ret.) Christian Reismeier as the military commission's convening authority in 2019. Reismeier had a long professional history of supporting the Office of the Chief Prosecutor and recused himself from two military commission cases on which he had played a public role when he took the job. Khan sought discovery into whether Reismeier's past conduct should also disqualify him from continuing to exercise convening authority in Khan's case and COL Watkins ordered the prosecution to produce that discovery back in September 2019. In a ruling issued Monday, Watkins chastised the prosecution in the starkest terms possible. "The Government's sovereign obligation," he wrote, "in maintaining this prosecution is to ensure not a particular outcome, but rather that justice shall be done. Gamesmanship, second-guessing, and replacing the statutory language with the Government’s unique interpretation of the discovery rules is unacceptable and will not be tolerated by this Commission." After reciting a series of particular discovery abuses caused by what Watkins called the prosecution's "faulty and unreasonably restrictive" view of its Brady obligations, he found "the Government’s discovery practice worthy of sanction." The most obvious sanction would have been to disqualify RADM Reismeier, since it was discovery in support of a motion to disqualify that the prosecution had improperly withheld. That remedy, however, was off the table because the Secretary had rescinded Reismeier's convening authority designation back in April. Watkins nevertheless concluded that a sanction was still needed to remedy the prejudice to Khan and to sanction the prosecution's misconduct. So, Watkins granted Khan a year of confinement credit. Given that eight years have elapsed since Khan's guilty plea, the year of confinement credit is modest in practical terms. But the ruling is likely to have greater significance in the other military commission cases, particularly United States v. Mohammed, et al., and United States v. Al-Nashiri, which are both capital cases. The blow up in Khan's case has pulled back the curtain on discovery practices that appear to be widespread within the Office of the Chief Prosecutor. If the prosecution took an "faulty and unreasonably restrictive" view of its discovery obligations with respect to an issue as ancillary as the potential biases of a convening authority, are these same standards being applied to the government's discovery obligations concerning torture, intelligence records, and the myriad other forms of Brady evidence that will be at the heart of these other cases? Michel ParadisLOAC Editor Last month Sen. Kirsten Gillibrand (D-NY) introduced the Military Justice Improvement Act of 2020 (MJIA 2020) as an amendment to the National Defense Authorization Act (NDAA). Similar to multiple predecessor “MJIAs” Sen. Gillibrand has introduced over the last six years, MJIA 2020 would amend the Uniform Code of Military Justice (UMCJ) and transfer authority from the commander to a judge advocate (JA) to prefer, dispose of, and refer certain charges to trial by court-martial. Because the core objective of MJIA 2020 - creating a system where the commander and a JA split prosecutorial discretion depending on the offense - represents fundamental change to our military justice system, its proponents bear the burden to justify why this is truly necessary and beneficial. That means providing persuasive evidence that 1) the current approach is significantly flawed and 2) that the proposed change would be a substantial improvement. Fundamental change proponents have failed to carry their burden.... [Continued in PDF below]. Editor's Note: "Profs. Jenks and Corn have penned a contribution regarding the Military Justice Improvement Act that is intended especially for CAAFlog readers. It is longer than a normal blog post, and would be unwieldy to read on the blog, so I upload it as a PDF here." ![]()
Chris Jenks & Geoffrey S. CornCAAF denied this petition last week: No. 20-0250/AR. U.S. v. Edward Garner. CCA 20180563. The prior week the court denied "Appellant's motion to file the supplement to the petition for grant of review out of time is denied." Thus, it appears an accused has been denied CAAF review without the benefit of a brief, all because defense counsel failed to file a brief in time. While we cannot be sure, the lower court opinion indicates this was not a merits case and had live issues (perhaps some Grostefon). Recall that U.S. v. Jason A. Scott was another Army case where a brief was not filed after repeated requests by CAAF. This raises a number of interesting issues to consider. 1. What legal recourse does the accused have to continue pursuing appellate review of the case? Where will he/she/they sue, if anywhere? 2. These are examples of potential professional misconduct. Negligent representation in litigation is said to be the largest category of bar complaints in civilian practice (with immigration cases taking up the largest share of that category). What mechanisms are in place--and actually functioning--to report and address professional misconduct in the MJ system? Brenner FissellEIC Announcement here:
https://twitter.com/SecArmy/status/1281641910327824386 When asked by an online newspaper whether the investigation would be conducted internally, the paper reported a DoD official as responding "Hell to the no." CNN reports that the review will be conducted by "four civilian consultants." A recent DOJ press release indicates another somewhat odd exercise of federal jurisdiction over an active duty military member. "According to facts presented in the guilty plea hearings, Kemp Sr. was employed by the U.S. Army as an active duty member when he forcibly raped a minor victim. After an investigation into the sexual assault was underway, his wife, Shanynn Kemp, intentionally harassed and dissuaded a witness from disclosing to law enforcement information about the sexual offense." Kemp received a life sentence for this. What sentence do readers think he would've received in the military justice system? Brenner FissellEIC A hearing one can watch from home this Thursday: the House of Representatives Committee on Homeland Security will hold a hearing addressing recent investigations into the Coast Guard Academy's handling of racial harassment claims. Details here. After perusing the reports that gave rise to this, I get the sense that the Committee Members view this as a civil rights law issue, and not a military justice issue. Brenner FissellEIC Recently, the NMCCA decided United States v. Flores-Rivas, a case concerning proper acceptance of a guilty plea.
Wes Martin writes at Real Clear Defense that the investigation of the commanders' failures to report sexual assaults should have gone further up the chain.
Yesterday, the 2d Cir. decided United States v. Mingo, a case about the non-delegation doctrine.
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