Another Exercise of Federal Jurisdiction

7/13/2020

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 Fissell

EIC

Nathan Freeburg

7/13/2020 02:22:35 pm

In a plea deal? 15-25. In a contested case? 25-life. When we get sentencing guidelines it will be interesting. If we see a sharp increase in potential sentences that could have some interesting economic implications for the MJ practice.

Brenner M. Fissell

7/13/2020 08:47:52 pm

Scott--intrigued by your comments re: the effect on the private bar (I think). Do you mean that longer sentences will mean accused service members will see it as more worthwhile to pay for experienced civilian defense counsel?

Nathan Freeburg

7/13/2020 11:20:28 pm

Yes, precisely.

Scott

7/13/2020 11:15:02 pm

It’s a tough call to plead guilty and then still get life in prison.

This is not a situation where they would have to negotiate the death penalty off the table.

My impression is that the federal system does not differentiate between life and LWOP (although I’m not 100% sure on that).

So what’s the motivation to plead guilty if you’re still going to get the maximum possible sentence? Was the evidence just that overwhelming? Interesting.

Nathan Freeburg

7/13/2020 11:22:29 pm

I found that curious too. It’s possible that there were other factors or considerations not in the press release.

Scott

7/14/2020 08:50:03 am

Here’s a news story with some additional facts: https://www.google.com/amp/s/amp.newsobserver.com/news/state/north-carolina/article244108817.html

Apparently there were multiple victims and multiple charges, but it seems the guilty plea was only for one. Defense argued for 15 years but judge gave life.

Defendant had been on active duty since 1991 and was a CW4.

I’m assuming the DOJ had jurisdiction because the acts occurred on federal property - likely a federal jurisdiction military base.

Honestly, it’s a good idea for the military to defer to the DOJ for prosecution of serious cases Like this when possible - especially when the crime is not uniquely military in nature. It’s clearly an advantage to the government to have veteran AUSAs on a case like this as opposed to trial counsel with 0-5 years MJ time.

Compare the military’s court martial of MAJ Hasan to what a civilian trial (state or federal for that matter) would have been like. Clearly the civilian system is better suited for cases like that. I get that Hasan was, in a way, uniquely military, but not in the sense that involved a uniquely military crime.

Brenner M. Fissell

7/14/2020 11:16:56 am

Scott--everything you say is probably right. Isn't it a bit depressing, though?

Scott

7/14/2020 02:20:00 pm

Yes. I think so. It is depressing.

I guess it depends though. If the MJ system is intended to quickly and decisively address military disorders then maybe it’s unrealistic to expect it to also handle complex essentially civilian offenses with equal competency as the civilian justice systems designed for precisely that purpose.

Is the MJ system supposed to be a top to bottom system for every crime committed by the million plus individuals subject to the UCMJ, simply because of the identity/affiliation of the offenders? Does it help good order and discipline more for this child molester to be court martialed rather than prosecuted by the DOJ?

Some would like to see the MJ system do more of the new Mini-Martials for AWOL/Disrespect/Theft/etc and less felony-level trials for off duty conduct completely within the jurisdiction of another prosecutorial entity.

But yes, I do agree completely that it is depressing.

Brenner M. Fissell

7/14/2020 03:35:00 pm

Scott-definitely right that there are multiple views on that. Unfortunately, some seem to dodge and weave between the two depending on the specific debate. What we should all agree on is that we can't have it both ways--a system that is empowered to (and does) impose serious punishments, but that demands an excuse for its lack of competence when criticized because it is a system made for something else.

Dwight Sullivan

7/15/2020 09:13:01 am

[Standard Disclaimer: This comment is offered in my individual capacity and shouldn't be imputed to anyone or anything else.] When assessing the performance of the military justice system, one key question is, "compared to what?" The federal civilian criminal system is the gold standard. But the bulk of criminal cases are tried in state systems. When I was practicing in Maryland state courts after 10 years on active duty as a Marine Corps judge advocate, I was struck that the military system offered far more protections reasonable likely to facilitate a just result than did the Maryland system. The most significant of these was providing a defense counsel to every accused. As I waited for my cases to be called, I would regularly see criminal defendants in Maryland courts tried without a defense counsel. As one explained, he made too much money to qualify for a public defender but not enough to hire a lawyer. So Gideon was an empty promise for many. The military justice system certainly faces significant challenges. For example, I've written about its comparatively high reversal rate in death penalty cases, which appears to result, in large measure, from the fact that most of the judges and counsel involved in those cases are capital novices. But there is also much in our system that is laudatory. Universal access to trial defense and appellate defense counsel without regard to means is a prime example.

Brenner M. Fissell

7/15/2020 10:05:00 am

DHS: great point. Especially true re: misdemeanor defendants in state courts. See, e.g., Natapoff, Punishment Without Crime. Interestingly, many of the criticisms from the Commentariat have been of the prosecutors. Scott's criticism can be coupled with another criticism of the prosecutors in the Hockenberry case.

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