Sailor accused of torching USS Bonhomme Richard will go to court-martial, Navy decides
From one Twitter user: "I litigated cases before CAPT Tang, and she is as sharp as they come. The Navy ignoring her recommendation that they not proceed comes as no surprise; the preliminary hearing process is a farce. Big Navy is posturing just like they did with the collision cases."
Unlawful command influence is a phrase and legal concept many are unfamiliar outside of the military or military legal community. Unlawful command influence (UCI) is effectively defined as “the improper use, or perception of use, of superior authority to interfere with the court-martial process” with Stephen Vladeck, a professor of national security law at the University of Texas School of Law, further commenting “the entire military justice system is comprised of men and women in uniform…these are folks who don't have the same kind of independence as our civilian judges… And the whole point of unlawful command influence is to try to insulate as much of the military justice system from those pressures as possible”.
It is a term that has no real relevance in other civilian criminal justice systems given its scope is limited purely to a military setting. However, the concept is an interesting one, one that has garnered scrutiny in the past few years with both the conduct of President Donald Trump and various military debacles.
This February, a military judge dismissed with prejudice multiple charges, including negligent homicide, involuntary manslaughter, obstruction of justice, and orders violations, against Chief Petty Officer Eric Gilmet, a Navy Corpsman assigned to a Marine Corps Special Operations Command (MARSOC) unit in the 2019 death Rick Anthony Rodriguez, a retired Green Beret Master Sergeant and Lockheed Martin contractor, in Iraq.
On 01 January 2019, Gunnery Sergeants Joshua Negron and Daniel Draher, alongside Gilmet, were leaving a nightclub in Erbil, Iraq when an altercation occurred. According to Task & Purpose, interviewing the three men’s defense counsels;
“On New Year's Eve, Draher, Negron, and Gilmet visited a bar in Erbil when Rodriguez allegedly got into an argument with Gilmet, which was caught on video by the bar's surveillance cameras…Gilmet later told his superiors that Rodriguez claimed that the Navy corpsman was not showing him enough respect. Draher tried to resolve the issue by speaking to Rodriguez…Video footage shows that Rodriguez first poked Draher in the chest and then lunged at the Marine…After Rodriguez threw a second punch, Negron hit Rodriguez, knocking him out…Rather than taking him to a base medical facility, the three men returned Rodriguez to his on-base quarters, where a co-worker monitored him. Several hours later, it became clear that Rodriguez was having difficulty breathing; so Gilmet began treating him and then Rodriguez was taken to the base's trauma center”.
The three accused had been assigned to the 3rd Marine Raider Battalion.
The case had been beset by delays and this was exacerbated by a Marine Colonel’s comments. At a November 2021 meeting, Colonel Christopher Shaw, the deputy director of the Marine Corps JAG, told Captain Matthew Thomas, who represented Gilmet, asked “What is being done to protect the attorney in that position from outside influences such as political pressures, media pressure and general societal pressure?” to which Shaw responded, “I know your name and I know what cases you’re on and you are not protected. You are shielded but not protected”. Following a , the Inspector General of the Marine Corps conducted an investigation which found “[the statements] did not warrant dismissing charges and, while “unprofessional,” they “did not constitute a violation” that caused harm equivalent to unlawful command influence”.
The case garnered interest within political circles after details of the Colonel’s comments were made clear, with “Representatives Louie Gohmert (R-TX), Madison Cawthorn (R-NC) and Daniel Webster (R-FL) [penning] a letter to the Secretary of the Navy and Commandant of the Marine Corps addressing allegations that a Marine colonel's comments may have jeopardized the fairness of the service members' trials”.
Following this, the judge in Gilmet’s case dropped all of the charges.
The judge, Commander Hayes C. Larsen, opined, “The facts in this case can be boiled down to a simple advert: a senior judge advocate who occupied a position of authority over the futures of young judge advocates made threatening comments to a young judge advocate about his career while this young judge advocate was assigned as IMC [individual military counsel] to a HIVIS [high visibility] case, creating an intolerable tension and conflict between an accused and his specifically requested military counsel…His actions constitute actual and apparent UCI [Unlawful Command Influence]”.
Both Draher and Negron’s cases have not moved forward given they are being tried separately, but their lawyers “have filed motions to dismiss, based on the same unlawful command influence allegations”.
In any criminal case being investigated and prosecuted, especially ones of a serious criminal charge like rape or murder, command must not be allowed to intervene or perceived to be intervening within a criminal case. It could easily warp the case, both in reality or perception, and effectively allow a person to not be punished for their crimes.
In this specific case, the crime of negligent homicide was certainly there; the soldiers in question did with the desire to “inflict great bodily harm” unlawfully killing “a human being in the heat of sudden passion caused by adequate provocation”. They furthermore did act without proper awareness or care in ensuring the contractor whom they had harmed was being treated effectively, instead entrusting themselves to do this.
The qualities and overall sentiment of negligent homicide were very present within this case; however, the presence (or even perceived presence) of UCI trumps all else.
Professor Jeffrey Addicott, a retired Lieutenant Colonel with Army JAG and a Professor at St. Mary’s School of Law in San Antonio, Texas, discussed both UCI and the case in an interview. “UCI is a necessary component to the military justice system. Given the inherent requirements of strict discipline and chain of command, UCI attempts to ensure that the justice system is not prejudiced” he emphasized, while also stating that the judge is using this case “as a clear signal to deter other individuals from anything that smacks of UCI”.
While it may be somewhat extreme or drastic given the charges, Addicott is right that UCI is one of the most important aspects of military justice and must be protected at all costs.
This case is an interesting one, mainly because the judge dissented from the official investigation by the Marine Corps and found that the complaint did constitute a situation of UCI. However, in terms of having an effect upon the rest of the military justice system, this will most likely be rather minimal. The real benefit this case has is showing just how valuable and important UCI is to our military justice system and emphasizing how this must concept must be protected at all costs.
“UCI is necessary for military justice to function,” Addicott said, “If we are going to police our own, we must have that extra layer of protection”.
Court of Appeals for the Armed Forces
United States v. Schmidt. Does a child victim of "indecent conduct by intentionally masturbating in his presence."
I think the question is whether the child has to be aware of the acts. The factual issue here being that the child was allegedly asleep. The members themselves wanted to know this in the context of what does "in the presence of mean." Of course part of the issue was about the instructions, lack of instructions, and waiver. The court concluded that they should review for plain error.
In Davis, we noted that we review a matter for plain error “ ‘when there is a new rule of law, when the law was previously unsettled, and when the [trial court] reached a decision contrary to a subsequent rule.’ ” 79 M.J. at 331 (first alteration in original removed) (second alteration in original) (quoting United States v. Oliver, 76 M.J. 271, 274 (C.A.A.F. 2017)). At the time of Appellant’s trial, it was unsettled whether the phrase “in the presence of” used to define the term “lewd act” in Article 120b(h)(5)(D), UCMJ, required the child to be aware of the lewd act. The statute did not define “in the presence of” and there was no case law interpreting this phrase in Article 120b(h)(5)(D), UCMJ. Thus, there was no binding precedent demonstrating that “in the presence of” required victim awareness. Accordingly, trial defense counsel’s failure to object was not waiver given the unsettled nature of the law at the time of Appellant’s court-martial.
Observers have pointed out that,
United States v. Anderson. GP to UA (AWOL) and use of marijuana, and conviction of sexual assault. He was sentenced to 30 months, RiR, and a DD. The issue was denial of post-trial speedy review. 481 days elapsed between the close of trial and the CA action. The court finds sufficient information to trigger a Moreno review, but not enough to show prejudice. Some comments.
No. 22-0066/AR. U.S. v. Ethen D. Black. CCA 20210310. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862 (2018), it is ordered that said petition is granted on the following issue:
WHETHER THE ARMY COURT ERRED IN ITS ABUSE OF DISCRETION ANALYSIS BY (1) CREATING A NOVEL TEST FOR COMMON AUTHORITY, (2) FAILING TO GIVE DEFERENCE TO THE MILITARY JUDGE'S FINDINGS, (3) COMPARING A MODERN CELL PHONE TO A TRADITIONAL "CONTAINER," AND (4) FINDING ERROR BASED ON A DIFFERENCE OF OPINION.
Pursuant to C.A.A.F. R. 19(a)(7)(A), no further pleadings will be filed.
Navy-Marine Corps Court of Criminal Appeals
United States v. Murphy. An enlisted panel convicted Appellant of abusive sexual contact of his sister-in-law. They sentenced him to xim months, TF, RiR, and a BCD. On appeal he raised factual sufficiency.
The manner in which this case was prosecuted invites more questions than were answered regarding this particular offense, and causes this Court to find the evidence insufficient to support a conviction. Appellant’s conviction for abusive sexual contact essentially rests on the testimony of Ms. Sierra and Mrs. Mike, which is conflicting in a number of material areas and also presents significant credibility issues. We are therefore not convinced beyond a reasonable doubt that Appellant committed abusive sexual contact upon Ms. Sierra by touching, directly or through the clothing, her genitalia.
Cheers, Phil Cave
(Update 11022022) Here is a copy of the MJ's ruling.
Task & Purpose is reporting that the military judge has dismissed the charges with prejudice. The government is likely considering their options.
Colonel’s ‘threatening’ comments cast doubt on fair trial, claim Raiders, corpsman charged with manslaughter
"'It’s one of the biggest whitewashes I have ever seen,' said Colby Vokey, Gilmet’s civilian attorney."
Court of Appeals of Alaska
Lee v. Alaska. See also State v. Morley, 952 P.2d 167, 180 (Wash. 1998) (en banc) ("Morley expressly waived his right to be tried by a jury, and he voluntarily submitted his trial to a military judge. Given that he was tried by a military judge, the alleged differences between military and civilian juries are irrelevant."); State v. Graves, 947 P.2d 209, 215 (Or. 1997) (Edmonds, J., concurring) ("There is no indication in this record that defendant's pleas were not factually based or not made voluntarily and intelligently. . . . Defendant should not be heard to complain about deficiencies in a fact-finding process in which he did not participate and which did not lead to the judgments of conviction in issue.").
Lee [unsuccessfully] argues that military adjudications should not count as prior felony convictions for purposes of Alaska presumptive sentencing law because defendants in military tribunals are not entitled to a unanimous verdict by a jury of their peers. For the reasons explained here, we conclude that the trial court could properly rely on Lee's prior military conviction for purposes of Alaska's presumptive sentencing scheme because the record shows that Lee voluntarily and intelligently pleaded guilty to the prior felony with the aid of counsel, waiving his right to any trial and signing a four-page stipulation admitting to his guilt.
Court of Appeals of Mississippi
Lowe v. Mississippi. For those litigating the issue of "context" testimony given by MCIO witnesses, Lowe is another case for the quiver. Professor Friedman sees such evidence as violative of the Confrontation Clause. You might find United States v. Combest, No. NMCCA 201100185, 2011 CCA LEXIS 638 (N-M Ct. Crim. App. Aug. 16, 2011) (mem. op.) pet. denied 70 M.J. 374 (C.A.A.F. 2011) of some help. Capt John S. Reid, Is it Hearsay? A Practical Primer, 43 THE REPORTER 22, 29 (2016) seems to take an opposing view. You might also consider,
This court has previously criticized the "'apparently widespread abuse'" of the background exception to the hearsay rule, although not in the particular context of the Kansas U.S. Attorney's Office. Cass, 127 F.3d at 1223 (quoting 2 McCormick on Evidence (4th ed.) § 249, at 104). We do not suggest that the problem is any more pronounced in the Kansas U.S. Attorney's Office than elsewhere, but we wish to remind all U.S. Attorney's Offices that, the Supreme Court stated more than seventy years ago, the U.S. Attorney "is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done."
Berger v. United States, 295 U.S. 78, 88 (1935). See also, United States v. Hinson, 585 F.3d 1328, 1337-38 (10th Cir. 2009) cert. denied, 130 S. Ct. 1910, 176 L. Ed. 2d 367 (2010), or United States v. Silva, 380 F.3d 1018, 1019 (7th Cir. 2004).
Court of Appeals for the Armed Forces
No. 21-0357/AF. U.S. v. Manuel Palacios Cueto. CCA 39815. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is granted on the following issues:
I. WHETHER TRIAL DEFENSE COUNSEL WERE INEFFECTIVE.
II. WHETHER TRIAL COUNSEL COMMITTED PROSECUTORIAL MISCONDUCT WHEN THEY STATED THAT THEY REPRESENTED "THE PURSUIT OF JUSTICE" AND ARGUED JUSTICE WOULD ONLY BE SERVED IF APPELLANT WAS CONVICTED AND ADJUDGED A SUFFICIENT PUNISHMENT.
AFCCA decision here.
1. Appellant alleges that he was denied effective assistance of counsel. He asks this court to consider five deficiencies in the performance of trial defense counsel: (1) failure to file a motion to suppress Appellant’s statements to his first sergeant; (2) ineffective cross-examination of MT; (3) failure to object to findings instructions and the Government’s argument regarding bodily harm; (4) failure to submit a timely discovery request; and (5) preparation of an ineffective sentencing case.
2. Appellant contends the trial counsel committed prosecutorial misconduct when stating that they represented “the pursuit of justice” and argued that justice would only be served if Appellant was convicted and adjudged a sufficient punishment. We have considered the prosecutors’ statements and arguments and find error.
a. At voir dire STC said, "My name is [ ]. I’m the circuit trial counsel and I’m stationed at Langley Air Force Base. I am TDY here to represent the United States of America in the pursuit of justice in this case."
b. ATC said in opening, "Now I ask you all to repair the little that can be repaired and bring justice to [MT] by finding [Appellant] guilty of all charges and specifications that he faces today."
c. STC said on findings, "Good morning. I feel like it’s been months since I first spoke with you during voir dire. And as I go through my argument today, this will be the last time that I speak with [sic] before this trial becomes yours. Our duties will be over and your duties will begin. And you will have the ultimate decision on what happened in this case and whether justice will be served, or whether [Appellant] will be acquitted."
As Paul Harvey would say, there is more to the story.
No. 22-0052/AR. U.S. v. Samuel B. Badders. CCA 20200735. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862 (2018), it is ordered that said petition is granted on the following issue:
WHETHER THE ARMY COURT HAD JURISDICTION OVER THIS GOVERNMENT APPEAL OF THE MILITARY JUDGE'S POST-TRIAL ORDER GRANTING A MISTRIAL.
ACCA decision here. Post-trial, the military judge granted a mistrial and the government appealed.
No. 22-0105/AR. United States, Appellant v. David J. Rudometkin, Appellee. CCA 20180058. Notice is given that a certificate for review of the decision of the United States Army Court of Criminal Appeals was filed under Rule 22 on this date on the following issues:
WHETHER THE ARMY COURT ERRED BY NOT PROPERLY CONSIDERING THE MILITARY JUDGE'S POST-TRIAL 39(a) PROCEEDINGS RELATING TO APPELLANT'S REQUEST FOR MISTRIAL.
WHETHER THE MILITARY JUDGE CLEARLY ABUSED HIS DISCRETION WHEN HE DID NOT GRANT A MISTRIAL AND FOUND THAT RELIEF WAS NOT WARRANTED UNDER LILJEBERG v. HEALTH SERVICES ACQUISITION CORP., 486 U.S. 847 (1988).
ACCA decision here. A government motion for reconsideration and reconsideration en banc was denied.
10 March Zoom Event, 7pm EST — “Accountability for American War Crimes, Up Close and Personal: A Conversation”
What are the lessons to be learned from the highly publicized – and highly politicized – 2019 general court-martial of former Navy SEAL Chief Petty Officer Eddie Gallagher? Will service members be deterred in the future from reporting war crimes, given the spectacular implosion of that attempt at accountability for alleged battlefield misconduct? Does this case, from investigation to court-marital plus post-trial processing—indicate a military justice system that is irreparably flawed, and hence calls out for replacement by the federal civilian criminal justice system? Can the rule of law be shielded from a commander in chief bent on meddling with the pursuit of justice, when that system itself is seemingly never immune from command influence because of its very architecture within the military?
To discuss these questions and more, join us for a special event – an opening act for NIMJ’s April 8 conference on accountability for battlefield misconduct – on Thursday, March 10. This webinar, featuring two participants in the 2019 court-martial of Eddie Gallagher, will discuss the above questions and more. Join Chris Czaplack, the original lead prosecutor in the case, and Josh Vriens, one of the decorated military witnesses, as they have a conversation with NIMJ about the importance of the laws and customs of war, and the pursuit of justice in the hardest of circumstances.
Zoom registration link forthcoming.
Registration for Justice in War -- NIMJ's conference at The JAG School -- is now open. Don't wait! In-person participation is capped at 50 people due to JAG School rules.
Do Not Fear Change: The Advantages of Proactive Reform on Panel Votes
Currently the Army Court of Criminal Appeals is considering whether or not members of the Army have a Constitutional right to a unanimous conviction vote. This is the inevitable follow on from the Supreme Court decision in 2020 requiring unanimous convictions in all jury trials. For those not familiar with the military system, a conviction requires three quarters of the lay panel to vote guilty while an acquittal only requires a quarter of more of the lay panel to agree there is reasonable doubt. Some states had similar systems, until the Supreme Court outlawed them in 2020. The law now is that a conviction is not proper unless the entire lay jury agrees on it. And the issue presented for court is whether a service member tried before a military panel is also entitled as a matter of due process to an unanimous vote.
How will ACCA decide, how will CAAF decide, and how will the Supreme Court decide the issue when it inevitably reaches them? Those are interesting questions in themselves, but I have another set of questions. Can the military alter the rules now, and should it?
First, the military has a choice. The Rules for Court-Martial (RCM) are made by the President. They are similar in ways to the Rules of Engagement (ROE) in operations. In particular, both contain a mix of policy and law and determine the limitations on timing, means, and methods the government can use. In the case of RCM, the limits relate to the accused; in the case of the ROE to hostile forces. The greatest similarity is that those charged with carrying out either military or judicial operations can ask for changes, and if the changes are policy matters, the requests can be granted. As it stands, the current voting procedure is a matter of policy and so can be changed now.
Second, is this traditional voting policy best? If ROE inhibit mission accomplishment, it is the obligation of a commander to request change. If the RCM inhibit mission accomplishment, the service Judge Advocates should ask for change. Like all systems of justice, a prime goal for military justice is to do justice and be seen as doing justice. The courts themselves can determine whether the current procedure is unjust, but a new policy of unanimous verdicts is likely to be seen as more just for a number of reasons.
Having a set of rules for determining guilt that differs from every court in the United States does not support a favorable public perception from two perspectives. From the accused’s perspective, he would assume he is more likely to be convicted in a military court because labeling him as guilty does not require all voters to agree. This does not look like equal justice to those subject to the system.
From the perspective of victims, there are several problems. Under the current system with a standard panel of eight persons, if three have reservations about guilt, they will vote not guilty and the full verdict will be not guilty. This acquittal acts as an exoneration. In the civilian context, you are only so exonerated if all members of the jury share the doubts of the three. Moreover, military policy in separations fully applies the principle of exoneration for enlisted Soldiers. This means that a Soldier may not be separated on the basis of the charges related to an acquittal. They get to stay in the service, perhaps with their accusers. Because of this difference in voting, an unknown percentage of military acquittals aren’t acquittals at all. They are mistrials, or they would be in the civilian world. Treating mistrials as acquittals also means that same unknown but measurable percentage of victims are told the accused is exonerated when that was not proven. The poor satisfaction rating sexual assault victims ascribe to the court-martial process is likely connected in part to perceptions created by a voting procedure that favors finality over accuracy.
Third, there was a time when the voting procedure made more sense because of the speed needed to complete trials. Indeed, if you review the records of World War II when tens of thousands of trials were happening annually, there were specific speed completion timelines given to units from the Pentagon and most cases were closed from incident to finding in less than 90 days. This is no longer the case. However, there might be conditions arising in international armed conflict where the benefits of speed weigh in the continued interests of the military. A rule change can account for this by preserving the current supermajority system for times of war.
Reasonable and rapid changes to the RCM requiring peacetime unanimity on verdicts will protect the integrity of current military verdicts and respect for the justice system. Any nonunanimous verdict, whether guilty or not guilty, should be a mistrial on that specification. An exception should be kept for times of war and under compelling military necessity. This change would serve the interest of both the accused and the victims. Our leaders should not wait for a high court to compel action.
LTC Blake Williams is a fellow and instructor in the law of armed conflict with the International Institute of Humanitarian Law in Sanremo, Italy and a US Army Judge Advocate with over eight years of direct military justice experience. He holds a Masters of Operational Studies with Honors from the US Army Command and General Staff College and Fort Leavenworth; a LL.M from the Judge Advocate General's Legal Center and School at Charlottesville, Virginia.
This annual award (2/5/22) goes to LTC Dan Maurer, Larrabee at the District Court. Runner Up: Maj Celidon Pitt, The Case for Standing Courts-Martial. The award comes with a $250.00 cash prize. More information here.
Cheers, and congratulations.
In re Abd Al-Rahim Muhammed Al-Nashiri. A recent filing in the D.C. Circuit suggests the government is reassessing the admissibility of evidence obtained through torture. (Thanks to Michel Paradis for this.)
Air Force Court of Criminal Appeals
United States v. Leach. Appellant pled guilty to two A&B. He was sentenced to 10 months, RiR, and a BCD. The case is back after correction of post-trial errors. The sole issue was whether the MJ erred in admitting various recorded phone calls made by Appellant while confined in the Charleston Brig. The recordings tended to rebut his in-court statements of remorse. Finding the recordings properly authenticated, relevant, and not objectionable hearsay the findings and sentence are approved.
United States v. Dodson. Appellant pled guilty to dereliction, disobedience of an order, use of cocaine, use of MDMA, on incident of domestic violence, and extramarital conduct. He was sentenced to 10 months, RiR. There were four issues and one specified.
We are not persuaded by Appellant’s contentions that his administrative discharge from the United States Air Force violated his due process rights to a “meaningful” direct appeal, or that this court no longer retains jurisdiction over his conviction and sentence because he was administratively separated prior to our completion of review of his direct appeal.
Finding no prejudice, the court affirms the findings and sentence.
JUSTICE IN WAR: Accountability for Battlefield Misconduct
April 8, 2022
The JAG School (Charlottesville, VA)
For more details, visit the conference site here.
RSVP link to follow. Attendance will be limited to 50 persons.
NOTE: Proof of COVID vaccination will be required of those attending in person.
"At the time of his arrest in June 2004, Brendan Shaw was two months shy of his nineteenth birthday and had an eleventh-grade education. He was living with his cousin and cousin's wife, Aaron and Angie Shaw, and their three children (all boys), ages one, three, and five,1 as a live-in babysitter. He had been living with his cousin's family for approximately four months. On the evening of June 21, 2004, Angie Shaw brought her three-year-old son to the Blanchfield Army Community Hospital *618 (“BACH” or “Hospital”) emergency room (“ER”) to be examined. She told medical personnel at the ER that the three-year-old had claimed that Shaw had “touched his pee-pee” and that Shaw's “pee-pee had touched his butt.” (Joint Appendix (“JA”) 7.) The doctor who examined the child found no physical evidence of trauma or sexual penetration. Military Police (“MP”) were nonetheless called to the hospital and told of the allegation....
At the Shaws' residence, [MP] Ford found the Defendant in front of the house with another teenager who also lived on base. Ford told the other teenager to go home and told Shaw “they needed to talk to him down at CID.” (JA 85.) Ford did not tell Shaw why “they” wanted to talk to him at CID. He also testified that he did not place Shaw under arrest at that point, but neither did he tell him he was not under arrest. Instead, he frisked him and handcuffed him before placing him in the backseat of the police car. Ford stated he handcuffed Shaw only because the MP's standard operating procedure required handcuffing anyone going into the back of an uncaged car for officer safety. Ford did not explain that fact to Shaw either, however. Ford also did not permit Shaw to go inside and put shoes on before leaving—Shaw arrived at CID fully dressed except that he was wearing socks and no shoes.
Shaw later learned that around 1:45 the same morning he was taken into custody, his uncle, Paul Shaw, received a phone call from Aaron Shaw. Aaron seemed upset and asked Paul to come pick up the Defendant. Paul Shaw left his home in Troy, Indiana around 2:00 a.m. and drove down to Fort Campbell that same night. He arrived at the CID office, where he asked if he could pick up his nephew. He was told he could not. He left his phone number for the Defendant to call him, but Shaw was never given the message that his uncle had been there. It is not clear from the record what time Paul Shaw arrived at CID....
After the CID's twenty-hour detention of Shaw, he was transferred to the custody of the FBI and taken to a federal detention facility. He was not taken before a magistrate until sometime on June 23, 2004."
United States v. Shaw, 464 F.3d 615, 617–20 (6th Cir. 2006)
Editor's note: Shaw appears to have been a civilian. Why was CID interrogating him and arresting him?
Prof. Vladeck has raised the issue in the following supplement to a petition for review:
This is a reversal of a previous position.
Analysis from Just Security here.
Here we have a reversal in the position of the USA due to a change in administration that appeared to have delayed effects with respect to the litigation team. The Bergdahl reply points out inconsistent contemporaneous positions taken by the USA, likely due to lack of coordination.
At DOJ, legal positions are coordinated through the Solicitor General's office. Should the same be true in military appeals?
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