The most recent version (Volume 35, Issue 4) of The American University International Law Review includes an article by Stuart Ford, a law professor at the University of Illinois Chicago, entitled: “Has President Trump Committed a War Crime by Pardoning War Criminals?”

This column has discussed the pardoning of war criminals in the past: Scholarship Saturday: Presidential pardons for convicted wartime murderers. That article focused on the extent to which a President ought to hold tight to a set of time-tested principles when exercising the pardon prerogative. Specifically, we focused on the principles that have traditionally driven clemency decisions: the need to remedy erroneous convictions, to show appropriate deference to those with more knowledge of the accused and the offense, to relieve unintended collateral consequences, to relieve excessive adjudged punishment, and to reduce punishment if the prisoner is reformed. Professor Ford’s article, at 758, asserts an additional principle:

Professor Ford then explores the pardons of Special Operations Chief Edward Gallagher, First Lieutenant Michael Behenna, First Lieutenant Clint Lorance, and Major Mathew Golsteyn. He ultimately concludes that:

​Nixon v. Hilton, 19-3002, 2021 WL 97353 (10th Cir. Jan. 12, 2021).
 
    On January 12, 2021, the Tenth Circuit U.S. Court of Appeals denied habeas relief sought by Petitioner, Barry N. Nixon, who was tried in a general court-martial and found guilty of rape in 2009. Petitioner was charged five years and nine months after the offense occurred. At the time, the UCMJ provided that the offense of rape could be “punished by death,” and that an offense “punishable by death” could be tried and punished “at any time without limitation.” For all other crimes, the limitations period was five years. 
 
   InUnited Stated v.Mangahas, 77 M.J. 220 (C.A.A.F 2018), the CAAF held that because rape could not constitutionally be punishable by death under the Eight Amendment, the offense was subject to a five-year limitations period. The district court distinguished Mangahas, noting that it was decided on direct appeal and did not retroactively apply to a collateral challenge. Petitioner appealed the district court’s decision to the Tenth Circuit.
 
   While the appeal was pending, the Supreme Court abrogated Mangahas in United States v. Briggs, 19-108, 2020 WL 7250099 (U.S. Dec. 10, 2020), unanimously holding that “punishable by death” meant capable of punishment by death under the penalty provisions of the UCMJ, and not when taking into account all applicable law. In other words, because the death penalty was authorized by statute for rape, that offense could be tried at any time. The Tenth Circuit therefore applied the law established in Briggsand affirmed the denial of habeas relief.
 
An analysis of the Supreme Court’s decision in Briggs is attached.

ACCA

United States v. Pereira. In this guilty plea case, the court took up an unreasonable multiplication issue. Appellant failed to meet a plain error analysis. The sentence of a dismissal and 30 days confinement was affirmed. [Corrected.]
 
United States v. Tobias. In this guilty plea case, the court held that there was insufficient foundation for a plea to larceny, but the pleas to an orders violation, a dereliction; and a false official statement were sufficient. After performing a sentence reassessment, the court found the sentence announced as appropriate.

United States v. Moore.  The court set-aside Appellant's convictions of child sexual abuse, because the military judge erred in admitting hearsay statements of the victim and her mother using prior recorded interviews. This is a Mil. R. Evid. 801(d)(1)(B)(i)(ii) case so is important reading for anyone trying an Article 120 case! As in some other cases we have seen, the Rule does not create a licence to admit everything, thus making the exception swallow the rule, and that care is to be taken on what is properly admissible for a non-hearsay purpose.

Next week, a symposium on legal ethics in military justice will be published by the Hofstra Law Review. The contributors cover a wide range of issues, but we found one issue to be stubbornly elusive: the efficacy of the legal ethics advisory/disciplinary infrastructure within the services. There appear to be institutions that exist for this purpose, but are they ever used? Have they ever issued an advisory opinion? Have they ever disciplined a lawyer? Regulations speak of officials called "Senior Counsels" who are tasked with professional responsibility oversight, and also a "Professional Conduct Council" and a "Professional Responsibility Branch." As you might imagine, it is very hard for outsiders to understand the activities of these institutions.

Comments and anecdotes are welcome. I will share an anecdote. When I practiced, I had a colleague who was a Marine major (defense counsel) who wanted to get an ethics opinion from the Marine Corps. He wrote to the appropriate institution, and the institution told him to go to his state bar (Maryland). In the end he just gave up.

The big takeaway is this: if we don't have a functioning professional responsibility system, we have a problem. State bars are known to kick back to the services any inquiries relating to MJ, and it appears that the services are also kicking some inquiries out to the states. We may have a feedback loop.

🚨🚨​🚨

​"No. 20-0359/NA. U.S. v. Salvador Jacinto. CCA 201800325. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is granted on the following issues:
 
I.  A MILITARY JUDGE MAY GRANT A CONTINUANCE FOR REASONABLE CAUSE AS OFTEN AS MAY APPEAR JUST. DID THE MILITARY JUDGE ABUSE HIS DISCRETION BY DENYING APPELLANT'S FIRST CONTINUANCE REQUEST AFTER THE GOVERNMENT DISCLOSED ONLY DAYS BEFORE TRIAL THE COMPLAINING WITNESS LIKELY SUFFERED FROM A PSYCHOTIC CONDITION?
 
II. THE FIFTH AND SIXTH AMENDMENTS GUARANTEE AN ACCUSED THE RIGHT TO A MEANINGFUL OPPORTUNITY TO PRESENT A COMPLETE DEFENSE. DID THE MILITARY JUDGE ABUSE HIS DISCRETION BY DENYING THE DEFENSE MOTION FOR IN CAMERA REVIEW OF THE COMPLAINING WITNESS'S MENTAL HEALTH RECORDS?
 
Briefs will be filed under Rule 25."

​NMCCA published opinion here.

On January 12, 2021, the Navy-Marine Corps Court of Criminal Appeals found that a military trial judge did not abuse her discretion in striking portions of a victim impact statement that referenced allegations of sexual assault for which the defendant was not found guilty.
 
Opinion here.

The editors have been made aware of a call for proposed amendments to the Regulation for Trial by Military Commission by the Director of the Office of the Convening Authority for Military Commissions. Any comments posted below will be collected and forwarded to the relevant contact, similar to a notice and comment process in administrative rulemaking. Comments are due to OCA by Friday, January 29, and therefore comments below must be posted by COB on Thursday, January 28. Anonymous comments will not be forwarded, but are permitted here for the purposes of general commentary. 

​In a unanimous opinion written by Judge Sparks, CAAF affirmed the conviction of Sgt. Jesus D. Cardenas. CAAF granted review on the following issue:
 
Whether the Army Court, after finding Appellant’s convictions were multiplicious, erred in permitting the Government to choose which of the Appellant’s convictions to dismiss on appeal.
 
Cardenas opinion here.
 
Background:
Appellant was convicted by a military judge of abusive sexual contact, sexual assault, maltreatment, and obstruction of justice, in violation of Articles 93, 120, and 134, UCMJ. On appeal to ACCA, Appellant’s conviction of sexual assault, as charged, was determined to be a lesser included offense of maltreatment. Under CAAF’s precedent, the Government could elect which multiplicious charge to dismiss to correct the error. Here, the Government elected to dismiss the maltreatment charge because the lesser included offense of sexual assault carried a higher punitive exposure. Given the Government’s election to dismiss the greater offense of maltreatment, and not sexual assault, Appellant petitioned CAAF, arguing that the lesser included offense must be dismissed when there is a multiplicity error.
 
In Cardenas, there does not appear to have been much debate on the granted issue, as the opinion is just six pages long. Truthfully, the opinion merely upholds CAAF’s previous rulings in Cherukuri, Palagar and Frelix-Vann. There is no legal gymnastics employed, just simple facts, the Double Jeopardy Clause requires that a violation be remedied but does not state how. CAAF not only cites the Fifth Amendment but goes a step further and cites R.C.M. 10003(c)(1)(C)(i), where similarly, there is no requirement that a specific multiplicious charge be dismissed. After citing the Fifth Amendment and the R.C.M., CAAF upholds their precedent, finding them workable and not poorly reasoned. In short, the Government may continue to choose which multiplicous charge to dismiss. 
 
Editor’s note: Footnote 4 abrogates a portion of the Court’s opinion in Cherukuri, where CAAF said that the “dismissal of the lesser-included offense is required by the Supreme Court’s recent cases on the Double Jeopardy Clause of the United States Constitution.” In this footnote, CAAF states that their prior reasoning misstated the Supreme Court’s decisions in Ball and Rutledge, and that they understand the confusion caused by their misstatement.

On January 12, 2021, the AFCCA denied TSgt Soren G. Gere's petition for a new trial pursuant Art. 73, UCMJ.
​
Gere opinion here.

It’s been nearly 33 years since Judge Cox noted that, in trials by court-martial:

United States v. Carter, 25 M.J. 471, 478 (C.A.A.F. 1998) (concurring opinion by current Senior Judge Walter T. Cox III, of the United States Court of Appeals for the Armed Forces).

In the above quote, Judge Cox was referring to the fact that, in the military justice system, the convening authority who wields prosecutorial discretion also exercises the power (under Article 25(e)(2) of the Code) to pick the members of the court-martial who will decide the case. That is, as this column has discussed in the past, a power which some have described as – as the definition of the word “peremptory” suggests – imperious, dictatorial, and unconstitutional.

But, the government’s selection and exclusion of court-martial members starts long before a convening authority sits down with pen in-hand to pick from a list of names of personnel assigned to his or her command. In the military, the process of selecting court-martial members begins at the Military Entrance Processing Station. The process of excluding members from the military’s general venire occurs in promotion boards, force shaping boards, and through other personnel management actions.

Those personnel practices are the actual means by which the government chooses who will be in its military venire. Those processes are how the government truly exercises its “unlimited number of peremptory challenges.” It is therefore imperative that those practices be free of racial disparity. Unfortunately, that does not appear to be the case. Just last week, Reuters reported that “a long-withheld Defense Department survey” revealed:

Greetings, and no there is not much activity in the courts.

AFCCA

United States v. Walker is a post-trial confinement case. Appellant alleged wrongful denial of prescribed medications at the confinement facility and that the conditions of post-trial confinement were inappropriately severe. Rather than address the issues, the court remanded for a new and correct post-trial action.

POTENTIAL APPELLATE CASES

An Air Force airman in New Mexico is facing a military trial next week in connection with a fatal car crash nearly two years ago. Prosecutors said Airman 1st Class Calvin Cooper is facing charges of involuntary manslaughter, negligent homicide and reckless driving.

An arraignment at Fort Bliss [has] officially launched the court-martial proceedings against an Army private first class accused of sexual assaulting a fellow soldier who was found dead on New Year's Eve.  In addition, officials have charged the 21-year-old Alvarado as a serial offender, with the documents detailing two other sexual assaults he allegedly committed against other women in the months after the attack on Graham.

WORTH THE WATCH

Brother Bill sent us a interesting Zoom video. Something I would hope one of us would be inclined to do no matter the frustration. Later reporting seems to indicate the attorney involved is now facing a discipline investigation.

*Brought to you as a product of the MilitaryLawNewsSpeakBureau.

Join us today at noon [open to public]:
A CAAFlog Discussion -- Representing (Alleged) War Criminals
January 22, 2021
12:00PM--1:00PM EST

Attendance Links [open to public]: 
https://hofstra.zoom.us/j/99470888693
 Meeting ID: 994 7088 8693
Dial by your location
        +1 646 558 8656 US (New York)
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        +1 301 715 8592 US (Washington D.C)

Join CAAFlog editors and friends for a one hour lunchtime discussion about the challenges of representing alleged war criminals in courts-martial and military commissions. Co-panelists Michel Paradis and Colby Vokey will each share general thoughts, followed by open comments and questions from the audience.

It was announced today that Trump will be defended by Butch Bowers, a South Carolina National Guard member who is a full time lawyer and has served as a JAG in the past.

"Senator Kirsten Gillibrand says she will work with colleagues on legislation giving U.S. troops the same legal protections against discrimination as civilian employees, a move advocates say could be a game-changer for minorities in America’s armed forces."

Story here.

The Felton opinion has me intrigued. Much of my research in my day job involves petty offenses created by local governments. Recent studies of misdemeanor criminal justice systems in the civilian world have centered on an important thesis: they system is "lawless," in the sense that the substantive criminal law does not meaningfully constrain prosecutors or police. The offense elements are basically ignored. See, e.g., Issa Kohler-Hausmann, Misdemeanorland; A. Natapoff, Punishment Without Crime. One famous example in this literature is the offense of taking up more than one seat on the NYC subway. Kohler-Hausmann discovered that while the ordinance requires that the second seat be obstructed when someone else wants to use it, police were arresting and prosecutors were charging even in the absence of this offense-element. They could get away with this because the defendant, often unrepresented, would usually plead guilty to avoid the hassle of fighting the charge.

Felton is encouraging because it shows meaningful attention to the limits imposed by substantive criminal law--even for a petty offense. It reminds me of an Air Force case from a few months ago where the court vacated a conviction for disorderly conduct that was premised on a police officer's impression that the accused was a "smart aleck." The limits of substantive criminal law are enforced by the review for legal sufficiency. In this sense, legal sufficiency review is far more important than factual sufficiency review. It protects innocent conduct from punishment.

An upcoming issue of the Southern California Interdisciplinary Law Journal (a publication of the University of Southern California) will feature an article by Dr. Ruthy Lowenstein Lazar exploring the reasons that prosecutors decline to pursue sexual assault cases even when they believe the victim: Epistemic Twilight Zone of Consent (hyperlinked to SSRN).

To explore the question, Dr. Lowenstein Lazar interviewed 29 prosecutors “selected from a list of prosecutors with experience in the field of sexual offenses who handled cases of this type regularly.” The applicability of Dr. Lowenstein Lazar’s work to the American military jurisdiction may be affected by the fact that the prosecutors she interviewed were Israeli civilian prosecutors. In particular, as described by Ariel Bendor in Investigating the Executive Branch in Israel and in the United States, Politics as Law, The Politics of Law, University of Miami Law Review, Vol. 54, No. 2 (2000) at 219, the degree of discretion afforded to Israeli prosecutors is less absolute than that afforded to their American counterparts.  

Nonetheless, even with those caveats, Dr. Lowenstein Lazar’s findings are still pertinent to the American military justice context since the prosecutorial authorities of both systems (prosecuting attorneys in Israel, and military commanders, advised by judge advocates, in the American military justice system) “[h]ave similar responsibilities and similar professional duties in the two jurisdictions. [A]lso, in the two jurisdictions, the prosecutorial test is ‘a reasonable prospect of conviction[.]’” Epistemic Twilight Zone of Consent at 5-6. As to the latter point, American military commanders are called upon to follow the Secretary of Defense’s published Non-Binding Disposition Guidance, including its call for them to consider “whether admissible evidence will likely be sufficient to obtain and sustain a conviction in a trial by court-martial.” (The Secretary issued that guidance because he was required to do so by the NDAA for FY 2017, Public Law 114-328 (December 23, 2016), as implemented by Presidential Executive Order 13-825 (83 FR 9891, March 1, 2018).

At its core, Dr. Lowenstein Lazar’s article contends that the decision of whether to prosecute a large volume of sexual assault allegations boils down to a “legal discourse of consent” that is hamstrung by what Dr. Miranda Fricker (Professor, City University of New York) refers to as “epistemic injustice.” Epistemic Twilight Zone of Consent at 26. (Oxford definition: “epistemic, adj.—relating to knowledge or to the degree of its validation.”) Specifically, the article asserts, our collective and dominant (“hegemonic”) understanding of what it means to consent to sex was developed largely without input from women. In other words, our collective interpretation of the circumstances that constitute consent (or lack thereof) suffers from “gendered hermeneutical marginalization.” (Oxford definition: “hermeneutic, adj.—concerning interpretation[.]”). Id.

Dr. Lowenstein Lazar’s interviews with prosecutors disclosed that the effect of having a legal discourse of consent that is overburdened by epistemic injustice is that:

​United States Court of Appeals for the Armed Forces
Washington, D.C.
In re Court Closure
O R D E R
By order of the Chief Judge, in addition to the previous closure and holiday notice, the United States Court of Appeals for the Armed Forces will be closed all day on Thursday, January 21, and Friday, January 22, 2021. For purposes of computation of time and motions to enlarge time under the Court’s Rules of Practice and Procedure, January 21 and 22, 2021, will be considered days when the Court is closed.