I was in a conversation yesterday about restitution at courts-martial. Restitution is not a formal "punishment" that can be imposed by the military judge. There are discussions to change that.
But, for the moment; Is it ethical to negotiate for restitution to get either a lesser sentence or an alternate disposition even?
I think yes, partly because I've done it and the Virginia Bar and state law seems au fait with that.
At or before the time of sentencing, the court shall receive and consider any plan for making restitution submitted by the defendant.
See § 19.2-305.1.C, Code of Virginia. So, that seems to support the idea of negotiating restitution as an ethical practice. But, this is the military not the Commonwealth.
R.C.M. 705(c)(2)(C) anyone? So my question is not can you, rather, why don't you. It is doable, I have done it, as have some others.
1. Imagine a Sailor comes down to berthing from flight deck operations and finds his footlocker rifled as a piece of electronics missing. A suspect is identified and in the investigation we resolve some other mysterious property disappearances. Assume the Sailor's electronic device is recovered but it is unusable. A court-martial is in order because a shipboard thief is bad for morale and good order and discipline.
The first step is to have the Sailor file an Article 139, UCMJ, claim against the offender. That's a form of restitution and the approved amount comes from the offender's paycheck. But back to court-martial.
2. How about assault cases. Imagine a Soldier assaults someone off base and a bill for the emergency room is delivered to the victim (and because of a TriCare deductible (or a not very good insurance policy) the victim is out some money.
3. How about sexual assault cases. The victim goes to an off-base provider for medical or mental health care which is not fully reimbursed through TriCare or medical insurance.
Imagine that a defense counsel comes to you with an offer to provide restitution to the victim in exchange for some favorable PTA terms. You talk to the TC and between the three of you (and the SVC/VLC if there is one) you agree on terms which you will recommend to the CA. So far so good. And, the prepared DC says, here is a photocopy of the check already written out.
The first response is, if we are going to do this, please provide a copy of a cashiers check or money orders. The DC's response is sure, once you tell me the deal is good to go, perhaps even signed.
Or, the DC submits a written PTA with a term that says, if, within 30 days of the sentence being announced, the accused provides . . . , or, if on or before trial the accused provides . . ., the convening authority agrees to suspend some confinement, some forfeitures, or portion of a fine. I have been in court where the MJ witnessed the handing over of the check during the Green/King inquiry. 
Over the years I think we have all seen that specific financial impacts from assaultive offense can be a barrier to the survivor dealing with the effects of the assault. If that one specific issue can be addressed then the survivor can focus on other efforts to deal with the assault. I come to this thought partly because of my own interest in the Restorative Justice practice of dealing with the accused and the victim in an offense.
If you care to read more about the restorative justice philosophy and efforts to apply it, try this survivor's story, or the District Attorney for San Francisco (you will find plenty of civilian jurisdictions working with such programs), or here, or the Canadian government, or here, or here at Univ. Wisconsin Law, or here--to point out a few items. If you give some thought to these programs you will see that, while the offender may benefit, it is the survivor who likely can gain more.
To go back to the start. Not every crime results in specific economic harm to a victim like the loss or destruction of property, the unreimbursed hospital bills, or the lost wages from time away from work. So to be clear, I'm not suggesting that restitution should be a factor in situations that might otherwise sound like punitive damages as if the court-martial were a civil tort case.
 United States v. King, 3 M.J. 458 (C.M.A. 1977); United States v. Green, 24 C.M.A. 299, 1 M.J. 453, 456, 52 C.M.R. 10 (C.M.A. 1976).
Court of Appeals for the Armed Forces
No. 21-0318/AR. U.S. v. Sven M. Council. CCA 20190321. On consideration of Appellant's motion to exceed page limits and the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said motion is granted, and that said petition is granted on the following issue:
DID THE ARMY COURT OF CRIMINAL APPEALS ABUSE ITS DISCRETION WHEN IT DENIED APPELLANT'S MOTION FOR A STAY AND TO ORDER A SANITY BOARD PURSUANT TO R.C.M. 1203 AND 706?
The decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to The Judge Advocate General of the Army for remand to that court for proceedings in accordance with Rule for Courts-Martial (R.C.M.) 1203(e)(5). That court may first order affidavits from all appellate defense counsel concerning Appellant's mental capacity to cooperate with counsel in appellate proceedings, but in any event shall order an R.C.M. 706 inquiry into Appellant's mental capacity at trial and on appeal and his mental responsibility for his offenses. If there are further proceedings, Articles 66 and 67, Uniform Code of Military Justice, 10 U.S.C. §§ 866, 867 (2018), respectively, shall apply.
[January 15, 2021] United States v. Beauge. Appellant alleged the MJ erred in denying discovery of the victim’s mental health records and IAC for failing to argue alternate theories for disclosure under either Mil. R. Evid. 513(d)(2) and/or because constitutionally required. A good discussion of how piercing the MRE 513 privilege might be appropriate as constitutionally required.
[October 27, 2021] No. 21-0183/NA. U.S. v. Frantz Beauge. CCA 201900197. On consideration of the motions filed by Patient/Victim C.G. to file an amicus curiae brief, to intervene, and to present oral argument as amicus curiae, it is ordered that the motion to file an amicus curiae brief is granted, and the motions to intervene and to present oral argument as amicus curiae are denied..
May a military judge impose a fine for an offense for which there is no unjust enrichment?
The answer is yes, and I and my colleagues have occasionally argued for just that.
See, United States v. Stebbins, 61 M.J. 366 (C.A.A.F. 2005); United States v. Murphy, No. S32629, 2021 CCA LEXIS 402 (A. F. Ct. Crim. App. August 10, 2021).
Consistent with his pleas, Staff Sergeant John Stebbins was found guilty of rape of a child under the age of twelve on divers occasions and sodomy of a child under the age of twelve, in violation of Articles 120 and 125 of the Uniform Code of Military Justice (UCMJ). He was tried and convicted by a military judge sitting as a general court-martial and sentenced to a dishonorable discharge, confinement for thirty years, reduction in rank to E-1, a $ 75,000.00 fine, and confinement of an additional five years if he failed to pay the fine. The convening authority approved the sentence as adjudged, except that he did not approve the additional confinement contingent on failure to pay the fine. The United States Army Court of Criminal Appeals subsequently affirmed the findings and sentence.
61 M.J. at 366-67. The CAAF went on to hold that a fine may be imposed in a case even though there is no evidence of unjust enrichment. Keep in mind that a fine becomes due when the CA acts while forfeitures come out of future pay (if there is any to be had). In both cases the money remains either in the DoD pay account or goes to the Treasury.
May a military judge impose a fine and then make a clemency recommendation along the lines of
"I have concluded based on the evidence before me and the victim impact statements that CW was required pay $X.00 for [medical] [mental health] [door locks] [lost wages], etc., etc., etc.
Seaman Able, this court sentences you to X, X, a fine of $3,056.33, and in the event you do not pay the fine, you shall be confined for an additional [X], and to be discharged.
I make the following recommendation, that if Seaman Able pays CW, as restitution, the full amount, that the sentence to confinement be suspended in excess of [X]. In the event Seaman Able is not able to pay the full amount as restitution, but is able to pay some amount, that [X] be suspended for [X]."
And, might not a concerned GCMCA agree to that. As his SJA I'd be inclined to recommend that even if just for the optics.
Yes, I understand it may be a pyrrhic effort because the accused may not have the money. But, it at least creates an incentive to pay the right person (or public fund) if there is money.
How about it, thoughts people?
Jacob Meusch reviews Editor Michel Paradis's book.
While thousands of lawyers' eyes passed over a recent update post about the Bergdahl case, only one comment was made, by "NotALawyer." Despite this person's lack of legal training, I found this comment to be astonishingly on point--raising a not-yet-discussed CA7 case that demolishes ACCA's reasoning regarding the effect of Bergdahl's failure to inquire into Nance's job search.
"[A] party does not have an obligation to discover any potentially disqualifying information that is in the public record. The onus is on the judge to ensure any potentially disqualifying information is brought to the attention of the litigants. 28 U.S.C. § 455(c) (“A judge should inform himself about his personal and fiduciary financial interests.”); see also Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 873 n. 9 (1988) (“[N]otwithstanding the size and complexity of the litigation, judges remain under a duty to stay informed of any personal or fiduciary financial interest they may have in cases over which they preside.”). It would be unreasonable, unrealistic and detrimental to our judicial system to expect litigants to investigate every potentially disqualifying piece of information about every judge before whom they appear. “[L]itigants (and, of course, their attorneys) should assume the impartiality of the presiding judge, rather than pore through the judge's private affairs and financial matters․ ‘Both litigants and counsel should be able to rely upon judges to comply with their own Canons of Ethics.’ “ Am. Textile Mfrs. Inst., Inc. v. Limited, Inc., 190 F.3d 729, 742 (6th Cir.1999) (quoting Porter v. Singletary, 49 F.3d 1483, 1489 (11th Cir.1995))."
Listecki v. Off. Comm. of Unsecured Creditors, 780 F.3d 731 (7th Cir. 2015).
1:00 pm: Welcome
Professor Rachel E. VanLandingham
1:15 pm: Opening Remarks
Senior Judge Scott W. Stucky
1:30 pm - 2:30 pm: Panel 1
Moderator: Hon. Walter Slocombe
Paper 1: Retirees--to court-martial or not to court-martial -- Phil Cave & Kevin Hagey
Paper 2: Feres In Military Prisons -- Prof. Brenner Fissell & Max Goldberg
Paper 3: The Why (Or Not) Of Military Justice -- Prof. Rachel VanLandingham
2:45 pm - 3:45 pm: Panel 2
Moderator: Todd Huntley
Paper 1: Why Winthrop, Why Weiner: Holding on to Older Military Law Experts in an Age of the Discovery of Racial and Gender Disparity -- Prof. Joshua Kastenberg
Paper 2: Preliminary Hearings in the United States Military -- Prof. Frank Rosenblatt
Paper 3: Why We Might Need a Constitutionally Corrupt Orders Defense -- Prof. John Dehn
4:15-4:45 pm: Reflections on thirty years of military justice
Eugene Fidell (in conversation with Brenner Fissell)
5:00 pm: Keynote Address
Senator Kirsten Gillibrand (D-N.Y.)
Registration is now closed, as the event space is at maximum capacity.
Zoom participation is still available. Register here.
A bipartisan group of senators criticized the Defense Department on Tuesday for moving too slowly to combat sexual assault in the ranks.
The group of eight senators, including three who serve on the Armed Services Committee, made their views known in a letter to Defense Secretary Lloyd J. Austin III that was obtained by CQ Roll Call.
John M. Donnelly, Senators hit Pentagon’s ‘lax’ response to sexual assault. Roll Call, October 26, 2021.
SUPPLEMENTAL GUIDANCE (2) TO MANDATORY COVID-19 VACCINATION OF MARINE CORPS ACTIVE AND RESERVE COMPONENTS
" Marines refusing the COVID-19 vaccination, absent an approved administrative or medical exemption, religious accommodation, or pending appeal shall be processed for administrative separation IAW this MARADMIN and supporting references. General Court-Martial Convening Authorities (GCMCA) retain authority to take any additional adverse administrative or disciplinary action they deem appropriate."
Congress Faces Decision on Military Justice Overhaul
"At the end of the day, this will happen if the president wants it to happen, and if the military listens to their commander-in-chief," [Sen. Gillibrand] said. "And the only other way it happens is if I'm given the opportunity for an up-or-down vote, and we don't let four men in the room decide everything."
Suliman & Disotell, The U.S. Army Consolidated Rehearing Center. The Army Lawyer, No. 3, 2021, at 45, has a description of the new U. S. Army Consolidated Rehearing Center. For those of us who have done rehearing's, they are not always as "easy" as the first time around.
The Rehearing Center serves to standardize and enhance the processing, prosecution, and defense of rehearings, new trials, and other trials and remands—all while developing subject matter experts in the complex procedures involved in the prosecution and defense of these types of cases. Pursuant to TJAG’s policy, the Clerk of Court for ACCA, acting on an order of remand from the appellate court, will refer records of trial to the Commanding General, Combined Arms Center, Fort Leavenworth, Kansas, subject to some exceptions discussed below. The Rehearing Center will receive all rehearings, new trials, other trials, and remands, regardless of the alleged offense(s), including both special victims and general crimes cases. In addition to rehearings in full and rehearings on sentence, the original trial, rehearing proceedings require certain modifications to the traditional court-martial procedure. Accordingly, the Army’s Chief Trial Judge is the detailing authority for cases remanded to the Consolidated Rehearing Center. Due to the complexity of the proceedings, the detailed judge will normally have significant prior experience. While complex in nature, the consolidation of all rehearings provides several benefits for military justice.
As I read this, it seems that those on appellate leave will now be recalled to Fort Leavenworth and not Fort Sill.
On 13 September 2021, Petitioner requested this court issue a writ of mandamus vacating a trial judge’s decision to grant a defense-requested continuance. Petitioner further asks us to find that she has standing to argue for her rights under Article 6b, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 806b, before the trial judge.
During voir dire of the potential court members on 23 August 2021, the Defense learned the Government intended to rely on evidence which the Defense had not been provided in discovery. The Government then turned over nearly 2,000 pages of text messages to the Defense. The next day, on 24 August 2021, the Defense sought a continuance, via a written motion, to review the evidence.
HK submitted a written objection to the continuance.
The military judge, ruling on the continuance, said that HK did not have standing before the trial court to object to the continuance. Note, the government objected to a continuance which was, apparently, caused by their discovery failure.
AFCCA accepts that it has jurisdiction to hear the writ.
Congress passed the National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66, 127 Stat. 672 (26 Dec. 2013) (FY14 NDAA). Section 1701 of that act was titled, “Extension of Crime Victims’ Rights to Victims of Offenses Under the Uniform Code of Military Justice,” and created Article 6b, UCMJ. As originally enacted, that article defined eight substantive rights for victims of crimes under the UCMJ, including the right to be reasonably protected from an accused, the right to notice of certain events, and the right to be treated with fairness and respect for his or her dignity and privacy. Article 6b(a), UCMJ, 10 U.S.C. § 806b. Two of those eight specific rights are relevant here: (1) the right to proceedings free from unreasonably delay, and (2) the right to be reasonably heard at certain proceedings. Id. The latter provision entitles a victim to be reasonably heard at: (1) pretrial confinement hearings; (2) sentencing hearings; and (3) clemency and parole hearings.
The court acknowledges that Article 6b is based on the CVRA followed in federal courts. The CVRA does provide that trial courts consider an alleged victim's input on continuances. However, the court finds that Congress does not specifically include such in Article. 6b.
Ultimately, the court decides the alleged victim had no standing at the court-martial--writ denied.
Assume the MJ did take the alleged victim's input and denied the continuance. Now what?
Comment: Imagine if CA's referral of an ROT had jurisdictional significance in courts-martial. CA could simply evade appellate review by refusing to refer.
The argument in Larrabee just finished at the DC Circuit (video link below). The one substantive point that came through--even more so than from the Government's brief--is that the Government absolutely refuses to impose any limits on Congressional determinations of who is or is not in the land and naval forces. Government counsel proposed a "sham" limitation but refused to define it, and also repeatedly refused to answer Judge Tatel's questions about hard cases, responding "but that's not this case." This stubbornness was especially egregious in the rebuttal portion at the very end.
I have a non-substantive question for appellate counsel: isn't this really bad form? How can you avoid a hypothetical in this way? I don't think I've ever seen an oral argument where counsel refused the questions in this manner. Has anyone else seen this (or done it themselves)?
On the TJAGSA site it says,
"All external email flow to @army.mil is currently down. If you are using @army.mil email, you will likely not receive or be able to send email traffic to non-army.mil addresses, such as @mail.mil, other DoD emails, and all other external/commercial email addresses.
This means that sending email from @mail.mil to @army.mil (and vice versa), will likely result in non-delivery while the issue is resolved. The issue is under investigation with no current ETR."
For those outside the mail.mil system this is why emails about current clients are bouncing and why you probably can't file electronically with ACCA and DAD and GAD may have difficulty electronically filing at CAAF?
Court of Appeals for the Armed Forces
Appeal — Summary Disposition in the third case argued at CAAF this term.
No. 21-0059/MC. U.S. v. Bradley M. Metz. CCA 201900089. On further consideration of the granted issue, 81 M.J. 148 (C.A.A.F. 2021), the briefs of the parties, and oral argument, we answer the issue in the affirmative. Accordingly, it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is set aside, and the record of trial is returned to the Judge Advocate General of the Navy for remand to that court to conduct the three-pronged approach of Brown v. Illinois, 422 U.S. 590 (1975) in examining the effects of an unlawful apprehension upon a subsequent search. See United States v. Conklin, 63 M.J. 333, 338 (C.A.A.F. 2006); United States v. Khamsouk, 57 M.J. 282, 290-91 (C.A.A.F. 2002). On remand, the Court of Criminal Appeals may order affidavits or a factfinding hearing, if necessary. See United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967). Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2018), shall apply.
"Appeal — Summary Disposition
No. 21-0059/MC. U.S. v. Bradley M. Metz. CCA 201900089. On further consideration of the granted issue, 81 M.J. 148 (C.A.A.F. 2021), the briefs of the parties, and oral argument, we answer the issue in the affirmative. Accordingly, it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is set aside, and the record of trial is returned to the Judge Advocate General of the Navy for remand to that court to conduct the three-pronged approach of Brown v. Illinois, 422 U.S. 590 (1975) in examining the effects of an unlawful apprehension upon a subsequent search. See United States v. Conklin, 63 M.J. 333, 338 (C.A.A.F. 2006); United States v. Khamsouk, 57 M.J. 282, 290-91 (C.A.A.F. 2002). On remand, the Court of Criminal Appeals may order affidavits or a factfinding hearing, if necessary. See United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967). Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2018), shall apply."
Register for Webinar access here if you can't make it in person.
Ott & Kamarck, Military Justice Disposition Delimitation Legislation in the 117th Congress. Congressional Research Service, October 18, 2021.
This report provides a framework for Congress to consider the three disposition delimitation proposals in the House and Senate FY2022 National Defense Authorization Act bills. The terms “delimited disposition” and “disposition delimitation” refer to any procedure that requires disposition authority for a specified offense to be transferred from a commanding officer to a judge advocate.
Cheers, Phil Cave
No. 21-0004/MC United States v. Schmidt was argued October 5th at CAAF. Appellant-Defendant was convicted by GCM of sexual abuse of a child under Article 120b(c). Appellant masturbated in the same room as the victim, JMT, while JMT pretended to be asleep. JMT heard Appellant’s masturbation and felt Appellant move around and touch JMT’s back and hand. There were several issues raised in oral argument. First, is this a general or specific intent crime? Second, does Article 120b require victim awareness? Third, was appellant entitled to a mistake of fact instruction to the panel?
The first issue is one of intent. The State asserts this is a general intent crime; the actus reus must be intentional but there is no specific intent to harm the victim or commit a lewd act upon the victim or in their presence. Appellant asserts that this is a specific intent crime. Appellant’s argument is persuasive. The statue reads: “intentionally done….in the presence of” 10 U.S.C. § 920b, suggesting a heightened intent requirement beyond the requisite mental state to commit the actus reus. See generally Wayne LaFave, 1 Subst. Crim. L. § 5.2(e) (3d ed.) The State says the defendant must intentionally commit the actus reus but does not need to intentionally commit the actus reus “in the presence of” the victim. This construction would find intent if someone commits the actus reus while genuinely unaware of the presence of a child in the room.
The second issue was whether Article 120(b) requires the victim to be aware of the defendant’s conduct. If “in the presence of” requires only physical proximity, the court can decide the case on this issue alone. Prior versions of the statute required victim awareness. Appellant reads in an awareness requirement to the statute, arguing that the point of this law is to prevent the child from being exposed to conduct that would corrupt their morals, and lack of awareness avoids the harm contemplated by the statute. The State does not recognize an awareness requirement, pointing to the plain language of the statute. While Black’s Law Dictionary does define “in the presence of” as requiring awareness, this is not the primary definition, and most other dictionaries do not have an awareness requirement. The State further argues that masturbating near a child while they sleep creates a risk they will wake up and be harmed by the conduct. Appellant countered that this reduces the mens rea from intent to recklessness. This issue is dispositive: if the court finds that there is no awareness requirement then Appellant is guilty regardless of the victim’s awareness and no mistake of fact defense would matter.
Appellant argues that he honestly thought JMT was asleep. Military judges are required to give instructions on any special defenses in R.C.M. 916 that may be at issue. R.C.M. 920(e). The trial judge did not give the panel instructions on the mistake of fact defense, and Appellant’s trial counsel did not object or request that these instructions be given. Appellant argues that these instructions should have been given since there was “some evidence” that Appellant had an honest mistake of fact, and Appellant did not waive these instructions when his counsel affirmatively stated that he had no objection to the proposed instructions, or in the alternative, that this failure to object was ineffective assistance of counsel. The State argues that this failure was an affirmative waiver, an intentional relinquishment of a known right, and forfeits the objection. Assuming arguendo Appellant forfeited his right to object, it is hard to imagine how this was not ineffective assistance of counsel. The mistake of fact defense is well known, it is even listed in the Rules for Courts-Martial, R.C.M. 916(j). Of course, this defense would only be prejudicial to the Appellant if the court finds an awareness requirement.
Navy probe finds major failures in fire that destroyed ship
"The report spreads blame across a wide range of ranks and responsibilities, from the now retired three-star admiral who headed Naval Surface Force Pacific Fleet — Vice Adm. Richard Brown — to senior commanders, lower ranking sailors and civilian program managers. Seventeen were cited for failures that “directly” led to the loss of the ship, while 17 others “contributed” to the loss of the ship. Two other sailors were faulted for not effectively helping the fire response.
Adm. William Lescher, the vice chief of naval operations, has designated the commander of U.S. Pacific Fleet to handle any disciplinary actions for military members. The Navy officials said the disciplinary process is just beginning."
"This is a case about the flagrant abuse, for obvious political purposes, of the due process
rights of a repatriated American POW...."
Comment: So, the question is, did the military courts give "full and fair consideration" to the claims. Think about the judicial bias claim. This was a claim based on facts discovered (via FOIA!) after briefing and argument--a claim that elicited an invitation to file a coram nobis. After the coram nobis was filed, the lower court denied it on the basis of it not being raised sooner. Full and fair consideration? Remember, the question is not whether you would grant relief, but whether the claim was considered. The answer to that seems to be an obvious "no."
GTMO commission defendant Al-Nashiri has filed a writ of mandamus in the DC Circuit challenging the military judge's ruling that torture-derived evidence is admissible outside of the case-in-chief.
Military Justice System Problems Go Beyond Sexual Assaults
"Retired Air Force Col. Don Christensen, a former military prosecutor and current president of Protect Our Defenders, a nonprofit dedicated to ending sexual violence in the military, said lawmakers need to overhaul the entire U.S. military justice system because it's archaic, with a framework that's inherited from a British system created by King George III and that has ties to ancient Rome."
Marine’s court-martial highlights the military straining to deal with partisan politics
"“What you’re seeing is everybody trying to get a piece of this last respected institution for their own purposes,” said [Jason] Dempsey, who is now an adjunct fellow at the Center for a New American Security. “People are going after and using these members of the military to advance their own political arguments.”"
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