(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?
Note with interest FN7: "ACCA was right to disqualify the trial judge in United States v. Rudometkin, 2021 WL 5235100 (A. Ct. Crim. App. Nov. 9, 2021), but the defendant’s reliance on it is surprising, for the government disagrees with it so vehemently that it sought panel and en banc reconsideration only two weeks before filing its opposition here. Both were denied. United States v. Rudometkin, Dkt. No. 20180058 (A. Ct. Crim. App. Dec. 9, 2021) (order). It is not every day that a litigant relies on a ruling in one federal court while simultaneously attacking it in another."
Showdown: The Battle Between Governor Abbott and President Biden Over Vaccine Mandates in the Texas Army National Guard
The COVID-19 pandemic has seriously transformed the political, social, and economic landscape for various countries throughout the world, most importantly and starkly the United States. The U.S. has forever been changed by this pandemic, in more ways than one while also wracking havoc with the nation’s national defense and national security apparatuses.
In 2021, due to the rising anti-vaccination sentiment within the U.S. Armed Forces, the Department of Defense (DoD) began removing soldiers who refused vaccinations with the U.S. Army having “reprimanded more than 2,700 soldiers” and begun discharge proceedings this month. The U.S. Air Force and U.S. Marine Corps have acted similarly, removing 27 Airmen and “over 100 US Marines”.
Many Conservatives, both members of the public and publicly elected officials, voiced their frustrations in letters to President Biden and the Pentagon and backed military personnel who sued “the Pentagon and Navy over the military’s coronavirus vaccine mandate”.
When the process to begin these discharges from service began gaining traction within the DoD during November and December, multiple Governors (starting with Governor Kevin Stitt of Oklahoma and followed by the Republican Governors of Wyoming, Alaska, Iowa, Mississippi, and Nebraska) argued their state’s guardsmen were exempt from the mandates arguing on 16 December, “the Defense Department can’t enforce the order while troops are under Title 32 of the U.S. Code, which says they are under their governor’s control unless the president mobilizes them”. Governor Stitt, following this letter, then filed a lawsuit against the DoD, trying to halt the vaccine mandate.
During this, Defense Secretary Lloyd Austin had stated that “any Guardsman who refuses to abide by the deadline for vaccination set by each military service will not receive pay for any duties while under federal jurisdiction – which includes monthly formations and training – and will not accrue benefits, including time counted toward retirement, for missing any of these activities”.
Clearly, from one political perspective, there was an intense and heated resistance to these vaccine mandates within the military. However, while the discharges have already begun occurring, this has not stopped many elected officials from further working against the federal government on this topic.
When other state’s Chief Executives began making known their arguments against the military’s vaccine mandates, another, more powerful Governor joined the fray. On 16 December, Governor Greg Abbott of the State of Texas sent a letter to Secretary Austin arguing that the National Guardsmen under his command would abide by his Executive Order GA-39 which holds that “[n]o governmental entity can compel any individual to receive a COVID-19 vaccine” while singling out the Texas State Guard (TSG) and the Texas Army National Guard (TARNG).
In his letter, Abbott further stressed that the “commander of the Texas National Guard -- under the governor's executive order -- "will not punish any guardsmen" for not getting vaccinated, adding that it was "unconscionable" that the military would threaten to withhold federal dollars for unvaccinated members of the guard or discharge service members from the unit”.
On 04 January of 2022, in spite of the massive legal and political trials, Abbott sent a letter to Major General Tracy Norris, the Adjutant General of the Texas Army National Guard. The Governor wrote:
“As the commander-in-chief of Texas’s militia, I have issued a straightforward order to every member of the Texas National Guard within my chain of command: Do not punish any guardsman for choosing not to receive a COVID-19 vaccine...Unless President Biden federalizes the Texas National Guard in accordance with Title 10 of the U.S. Code, he is not your commander-in-chief under our federal or state Constitutions. And as long as I am your commander-in-chief, I will not tolerate efforts to compel receipt of a COVID- 19 vaccine.”
In coordination with this letter, Ken Paxton, the Attorney General for the State of Texas, filed a lawsuit against President Biden, Secretary Austin, Secretary of the Air Force Frank Kendall III, Secretary of the Army Christine Wormuth, and the respective departments of the U.S. Armed Forces on Governor Abbott’s behalf. The Governor and Attorney General wrote:
“Defendants unilaterally severed the division between state and federal authority over the Army National Guard and Air National Guard by attempting to impose a mandatory COVID-19 vaccine policy (“Military Vaccine Mandate”) on Guardsmen under state control, and in violation of Texas state law. Rather than exercise their own authority and lawfully activate the President’s chain of command, Defendants have attempted to force state officers to do the work for them, in violation of both the U.S. Constitution and federal laws... this case seeks protection from the federal government’s unconstitutional action to force Texas, through its Governor, to submit to federal orders and impose federally dictated disciplinary action on its National Guardsmen.”
According to the lawsuit, “more than 220 members of the Texas Air National Guard and about 40% of the members of the Texas Army National Guard are refusing to get vaccinated -- for religious reasons or otherwise”.
This lawsuit made national headlines and prompted responses from politicians in the State of Texas, with Democratic and Republican challengers to the Governor’s seat criticizing Abbott’s legal actions on social media. Statements of both support and criticism came from local and state politicians and from the public on social media.
This entire case, starting with the initial letter and lawsuit by Governor Stitt of Oklahoma, has already been much discussed within the U.S. legal system. The lawsuit brought by the Governor was quickly dismissed on 28 December, with the judge stating the claims were “without merit” and “[the] court is required to decide this case on the basis of federal law, not common sense…either way, the result would be the same”. This case is sure to generate an intense legal discussion within the Texas courts, yet, will transcend purely the issue of vaccine mandates.
The Hill, interviewing lawyer Sean Timmons with Tully Rinckey LLC in Houston, details how this case will have immense ramifications. Timmons states, “I don’t believe there has ever been this level of conflict between Guard units and the federal government in our history… Governors generally throughout the history of our country have had a lot of discretion who they allow in their ranks… So, the governors, cleverly, here [are] trying to say, 'Oh, we're just going to waive the requirement for vaccines because we don't believe that should be something that they should have abide by,'”. This case will surely change the relationship between the National Guard and the federal government, forever altering how they operate in times of peace and war and defining what exactly powers the Governor has over them.
This showdown between the Executive branch and the State of Texas, however, has rather important national security implications. While the Governor is correct that, the vast majority “of the time, state National Guards are activated and commanded by the governors of their respective states or territories” the President does have the ability to federalize these units. Under Title 10, Section 12406 of U.S. Code, in certain times of foreign invasion, domestic insurrection, or when regular U.S. Armed Forces are unable “to execute the laws of the United States… the President may call into Federal service members and units of the National Guard of any State in such numbers as he considers necessary to repel the invasion, suppress the rebellion, or execute those laws”.
Under normal circumstances, though, the President would ask for “the consent of the Governor” before federalizing a state’s national guard forces. If the President were to federalize the Texas Army National Guard, then the National Guardsmen who are not vaccinated would need to be vaccinated given they have been federalized and are now under complete DoD authority. While the Governor’s executive order would still stand,
If the TARNG were to become federalized and vaccinations were required, then this would stall whatever operation the United States would be embarking upon. Vaccinations could not be forced, so if soldiers refused, they would need to be discharged from the service which would take time. If the operation in question were to be in response to a natural disaster or a military conflict, wasting time over such the vaccine mandate could cost the lives of foreign persons, Western allies, or U.S. personnel themselves.
The decision by Governor Abbott is one that puts the TARNG at risk of being combat ineffective, and, in the event of war (which seems more possible now given the situation in Ukraine), would result in the United States and Western nations being at a disadvantage. While other National Guard units could be called upon to serve and possibly reinforce those units in need, this again would take additional time that may not be in abundance and potentially weaken any strategy against the enemy.
Allowing soldiers to not be vaccinated against the COVID-19 vaccine is a poor mistake; not only does it erode the confidence one has in the National Guard and further make them susceptible to virus and disease, weakening their abilities to respond during a state crisis, it degrades the power of the U.S. Army as a whole and makes for a weak national security state.
Alan Cunningham is a graduate of both Norwich University and the University of Texas at Austin. He works as a financial analyst for Ernst & Young and as a journalist for the human rights organization Truth Be Told. He plans to join the U.S. Navy as a Commissioned Officer in 2022 and gain a PhD in History and a JD in the near future.
U. S. Supreme Court
Here is a link to a SCOTUSBlog review of Hemphill.
I was particularly interested in the last paragraph about confrontation at suppression hearings and during sentencing.
The 8th has addressed confrontation during a suppression hearing. United States v. Thompson, 2008 U.S. App. LEXIS 15389 (8th Cir. Jul. 21, 2008). See also United States v. Boyce, 797 F.2d 691, 693 (8th Cir. 1986) (quoting United States v. Raddatz, 447 U.S. 667, 679 (1980)).
In United States v. McDonald, 55 M.J. 173 (C.A.A.F. 2001), the court ruled that there is no right of Sixth Amendment confrontation during a non-capital case sentencing hearing. C.A.A.F. cites a number of federal circuit cases including United States v. Wise, 976 F.2d 393, 401 and n.3 (8th Cir. 1992) (en banc), cert. denied, 507 U.S. 989 (1993). The granted issue in McDonald was
WHETHER THE LOWER COURT ERRED IN HOLDING THAT THE SIXTH AMENDMENT'S CONFRONTATION CLAUSE DOES NOT APPLY TO THE PRESENTENCING PORTION OF A COURT-MARTIAL, CONTRARY TO THIS COURT'S DECISION IN UNITED STATES V. GEORGE, 52 M.J. 259 (2000).
55 M.J. at 174.
However, under Williams, the Due Process Clause requires that the evidence introduced in sentencing meet minimum standards of reliability. Those requirements were met here. There is no evidence to suggest that the victim's father's testimony was unreliable or his identity questioned. Additionally, there was notice to the defense, right to counsel, right of cross-examination, and a presentation of the evidence by telephone to the judge as the sentencing authority. The record establishes that the "practical difficulties of producing a witness," including the cost and timing, were such that the judge did not abuse his discretion in allowing the victim's father's testimony to be taken by telephone. Cf. United States v. Hill, 4 M.J. 33, 37 n.18 (CMA 1977). See also United States v. Rich, 12 M.J. 661, 663 n.3 (ACMR 1981). In any event, any error in this case was harmless. We do not suggest that telephone testimony is appropriate in all cases. Manual guidance to the military judge during sentencing is sufficient to ensure the proper balance between obtaining needed testimony and safeguarding rights of the accused.
55 M.J. at 177-78. The question then becomes finding the left and right limits of "confrontation" at sentencing as a due process concern.
McDonald rests on several points of military practice which includes notice of sentencing evidence and the opportunity to present evidence. But, the military is different than civilian jurisdictions. Sentencing comes immediately after the findings of guilty. There is no delay of weeks or months between the two events which means there is often little time to properly investigate and prepare rebuttal to prosecution evidence. While R.C.M. 701(a)(5) requires government disclosure of sentencing evidence upon request, how common or uncommon is it for the prosecution to provide timely notice so the defense has the opportunity to investigate and perhaps find rebuttal evidence?
"President Joe Biden on Wednesday will sign an executive order to make sexual harassment an offense under the Uniform Code of Military Justice.
According to White House officials, the executive order will also strengthen the military’s response to domestic violence incidents and increase penalties for service members who share “intimate visual images” without permission."
United States Supreme Court
Hemphill v. New York, ___ U.S. ___ (Jan. 20, 2022). This 8-1 opinion written by Justice Sotomayor addresses,
A litigant’s argumentation or introduction of evidence at trial is often deemed to “open the door” to the admission of responsive evidence that would otherwise be barred by the rules of evidence.
The question presented is: Whether, or under what circumstances, a criminal defendant who opens the door to responsive evidence also forfeits his right to exclude evidence otherwise barred by the Confrontation Clause.
After the 2006 shooting death of David Pacheco Jr., New York tried Nicholas Morris for the murder and for possession of the suspected murder weapon, a firearm. But that trial ended in a mistrial, and the state ultimately re-charged Morris for possession of a different firearm. Morris pleaded guilty to that charge.
Court of Appeals for the Armed Forces
It looks like CAAF is ready to speak on a number of issues about access a complaining witness's medical and mental health records.
No. 22-0023/AR. U.S. v. Michael L. McClure. CCA 20190623. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:
WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE DENIED DEFENSE'S MOTION FOR ACCESS TO JS'S MENTAL HEALTH RECORDS UNDER M.R.E. 510 AND 513 AND REFUSED TO REVIEW THE MENTAL HEALTH RECORDS IN CAMERA TO ASSESS WHETHER A CONSTITUTIONAL BASIS JUSTIFIED THE RELEASE OF THE RECORDS TO THE DEFENSE.
No. 21-0312/NA. U.S. v. Wendell E. Mellette, Jr. CCA 201900305. On consideration of the petition for grant of review and the pleadings, it is ordered that said petition is granted on the following additional issue:
WHETHER THE COURT OF CRIMINAL APPEALS ERRED BY HOLDING THAT THE VICTIM WAIVED THE PSYCHOTHERAPIST- PATIENT PRIVILEGE.
Briefs on this additional issue will be filed by Appellee, Appellant, and Amici Curiae on or before January 26, 2022. The previous grant:
No. 21-0312/NA. U.S. v. Wendell E. Mellette, Jr. CCA 201900305. 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. M.R.E. 513 EXTENDS THE PYSCHOTHERAPIST-PATIENT PRIVILEGE TO A "CONFIDENTIAL COMMUNICATION" BETWEEN PATIENT AND PSYCHOTHERAPIST OR ASSISTANT. DID THE LOWER COURT ERR BY CONCLUDING DIAGNOSES AND TREATMENT ARE ALSO SUBJECT TO THE PRIVILEGE, INVOKING THE ABSURDITY DOCTRINE?
II. DID THE NMCCA DEPART FROM SUPREME COURT AND CAAF PRECEDENT BY NOT REVIEWING THE EVIDENCE AT ISSUE—DIAGNOSES AND TREATMENT, INCLUDING PRESCRIPTIONS—IN CONCLUDING: (1) THE MENTAL HEALTH EVIDENCE WAS BOTH PREJUDICIAL AND NON-PREJUDICIAL; AND (2) FAILURE TO PRODUCE IT WAS HARMLESS BEYOND A REASONABLE DOUBT WHERE THE UNKNOWN EVIDENCE COULD HAVE NEGATED THE EVIDENCE THE NMCCA CLAIMED TO BE "OVERWHELMING" EVIDENCE?
NMCCA's published opinion.
Update: Richard D. Freidman, Hemphill v. New York: the right call. Jan. 21, 2022. Prof. Friedman is one of the 'gurus' of Confrontation law.
Counsel for Larrabee has submitted Nicely v. United States, just decided by the Court of Appeals for the Federal Circuit, as additional authority.
Court of Appeals for the Armed Forces
In United States v. Hiser, the court has taken a first but slim cut at telling us what UCMJ art. 117a means. Judge Maggs, writing for a unanimous court gives the BLUF.
Appellant contends that the military judge abused her discretion in accepting his guilty plea to three specifications of wrongfully broadcasting intimate visual images in violation of Article 117a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 917a (2018). According to Appellant, the providence inquiry in this case failed to establish that the victim was “identifiable” and also failed to establish a “connection to a . . . military environment” as required by Article 117a(a), UCMJ. The record, however, does not support Appellant’s contentions. Because we see no substantial basis in law or fact for questioning the plea, we affirm the judgment of the United States Army Court of Criminal Appeals (ACCA).
The court takes a narrow approach because there is a a guilty plea with a stipulation and good Careful inquiry by the military judge. The court reminds us of three standards of review applicable to in a GP case: (1) A stipulation is true unless withdrawn or stricken from the record, (2) A GP gets affirmed unless there is a substantial basis in law and fact to question the providence of the plea, and (3) when interpreting a statute there is de novo review.
Basically Hiser's was allowed by another Soldier video-record her involved in sexual activity on condition he didn't share it. Well, he did and and he did--take and share. He claimed on appeal that
Recognizing that the new statute is "complicated," laid out in a more than "300 word" sentence, the court focuses on two of the four elements raised by Appellant.
1. What does it mean or what is required for
the accused “knowingly and wrongfully broadcast[ed] . . . a visual image of sexually explicit conduct involving a person who . . . is identifiable from the . . . visual image . . . or from information displayed in connection with the . . . visual image.” Id. § 917a(a)(1)(B) (emphasis added). Second is that the accused “[knew] or reasonably should have known that the . . . visual image of sexually explicit conduct was made under circumstances in which the person depicted in the . . . visual image of sexually explicit conduct retained a reasonable expectation of privacy.”
1. What does it mean or what is required
that the accused’s “conduct, under the circumstances, had a reasonably direct and palpable connection to a military mission or military environment.”
The court is quick to point out that this is not a UCMJ art. 134 offense requiring proof of prejudice to good order and discipline or service discredit; although arguably GoD and the statutory language are similar?
Keeping in mind this was a GP.
1. The stipulation is fact that the victim identified herself from the photo which is good enough under the first prong (citing People v. Johnson, 184 Cal. Rptr. 3d 850 (Cal. Ct. App. 2015). But also, there was viewable "information displayed in connection with the video,"--the Appellant's email address, a description of the victims relationship to him, and some corroboration through a ring and hairstyle seen in the video. The rejected the idea that the statute requires that the person be identifiable by someone in the general public other than by the victim.
2. So what is the "reasonably direct and palpable connection to a . . . military environment?" The court rejects Appellant's argument that "connection element is satisfied only if the broadcasted images at issue were “directed at servicemembers” or were “likely to reach servicemembers.”" Here the court makes the clear distinction between Appellant's guilty plea and a case litigated at trial--when reviewing a guilty plea there is no factual or legal sufficiency review involved. The court here distinguishes United States v. Wilcox, 66 M.J. 442 (C.A.A.F. 2008), which was a UCMJ art. 134, clause 1 and 2 case, and Appellant's prosecutors need not prove the additional element of GoD or SD. I doubt it helped that the stipulation of fact included that,
Appellant specifically stated he uploaded the video to embarrass X., and recognized that other members of her command could see them and think “this is degrading to the U.S. military that Soldiers are uploading this kind of behavior and their intimate lives on to social media or the internet.” Appellant stipulated that there was a negative impact on the military community at Fort D. Finally, unlike the investigators in Wilcox who presumably were not affected by the controversial statements they uncovered, X was (according to the stipulated facts) “likely” to suffer “emotional distress” because of the broadcasting of the videos. Under the plain language of Article 117a(a)(4), UCMJ, nothing more is needed to establish a “direct and palpable connection to a . . . military environment.”
It is possible to wonder whether this case was an appropriate vehicle for announcing some "new" law?
The court also rejects several "other contentions."
1. Yes, a single factual basis may satisfy the elements of two offenses, citing Pasquantino v. United States, 544 U.S. 349, 355 (20025).
2. Arguments about "constitutional implications" of the statute and "unresolved inconsistencies between the stipulation and the video" are outside the scope of the granted issue.
Ding ding. Ding ding. Captain Fulton, departing.
Today is the last day in the storied naval legal career of Captain Marcus N. Fulton.
Over the past 24 years, Captain Fulton has been one of the leading litigators and jurists in the military justice system. He is also both a co-founder and the namer of CAAFlog, which is still running fifteen years after he took such delight in creating a portmanteau by combining the Court of Appeals for the Armed Forces’ acronym with the ancient naval justice practice of flogging.
He is probably the only judge advocate ever to hit the trifecta of engaging in the regular court-martial system, a court of inquiry, and the military commission system. Captain Fulton was a litigator at both the court-martial trial and appellate levels. He is one of a tiny clique of military lawyers who have participated in a court of inquiry, successfully defending USS Greeneville’s officer of the deck at the time of the submarine’s collision with the Japanese fishing vessel Ehime Maru. As a trial judge in Hawaii (how cool is that?), then-Commander Fulton issued a decision finding apparent unlawful command influence resulting from a statement by President Obama—a ruling John Oliver discussed while guest-hosting the Daily Show (how cool is that?). As an appellate judge, he sat on both the Navy-Marine Corps Court of Criminal Appeals and the Court of Military Commission Review. On the Navy-Marine Corps bench, he wrote for the court in such published cases as United States v. Solis, 75 M.J. 759 (N-M. Ct. Crim. App. 2016); United States v. Hale, 76 M.J. 713 (N-M. Ct. Crim. App. 2017); and United States v. Perkins, 78 M.J. 550 (N-M. Ct. Crim. App. 2018). And he authored the Court of Military Commission Review’s decision in Hawsawi v. United States, 389 F. Supp. 3d 1001 (Ct. Mil. Comm’n Rev. 2019), one of the few CMCR opinions to be upheld by the D.C. Circuit. In re Hawsawi, 955 F.3d 152 (D.C. Cir. 2020).
Captain Fulton’s final Navy gig was the coveted position of Director, Navy-Marine Corps Appellate Defense Division—the gunslingers of Code 45. Leading from the front, he argued two cases at CAAF as the Code 45 Division Director, ending his military justice career on a high note with his victory in United States v. Becker.
In addition to his prodigious litigation experience, Captain Fulton twice deployed to the Fifth Fleet as USS Dwight D. Eisenhower’s command judge advocate and put his boots on the ground in Afghanistan during a six-month deployment to the Combined Security Transition Command-Afghanistan in Kabul. He displayed his academic chops with his article, Never Have So Many Been Punished So Much by So Few: Examining the Constitutionality of the New Special Court-Martial, Army Law. (June 2003), at 28. And he is almost certainly the best violinist who has sat on the Navy-Marine Corps Court of Criminal Appeals.
After leaving the Navy, Captain Fulton will become a Veterans Law Judge on the Board of Veterans Appeals. (We can’t help but think of the Daily Show’s America (The Book)’s description of the Board of Veterans Appeals’ superior court, which it called the “U.S. Court of Veterans Affairs”: “Looking for the world’s most depressing court experience? You’ve found it.”)
Fair winds and following seas, Captain Fulton. You have made a tremendous impact on the military justice system during your almost quarter century as a U.S. Navy judge advocate.
Tenth Circuit Court of Appeals
This appeal raises one issue: whether, under 18 U.S.C. § 3553(a), it is unreasonable for a district court to impose a harsher sentence based on a defendant’s decision to plead guilty without a plea agreement. For the reasons explained below, we hold that it is.
The judge gave a middle range sentence, even though the "facts" likely warranted a lower sentence. The accused had rejected a plea offer but pled guilty anyway. The government argued for a lower sentence which was their plea offer. The judge however, said,
I think sometimes there’s sort of an implicit assumption that an individual is entitled to a sentence at the low end of the guideline range, but there is, of course, no such right. And, in practice, one of the factors I’ve used to lean against a low-end guideline range are defendants who submit a plea without a plea agreement, without the agreements that typically happen in a plea agreement.
Seems to me as we move forward with applying the NDAA sentencing changes we will be referring more to federal district court cases? So here is the nub of the case, perhaps for the future?
We review a defendant’s sentence “for reasonableness under an abuse-of-discretion standard,” which applies whether the sentence falls inside or outside of the guideline range. United States v. Henson, 9 F.4th 1258, 1284 (10th Cir. 2021) (quoting Peugh v. United States, 569 U.S. 530, 537 (2013)). The reasonableness of a sentence includes a procedural component, which relates to the method by which a sentence was calculated, and a substantive component, which relates to the length of the resulting sentence. Id. In arguing that the district court impermissibly treated her open plea as an aggravating fact warranting harsher punishment, Ms. Cozad raises a procedural reasonableness challenge. See United States v. Sayad, 589 F.3d 1110, 1116 (10th Cir. 2009) (“Generally, a district court’s use of an improper factor invokes procedural review.”); United States v. Pinson, 542 F.3d 822, 835–36 (10th Cir. 2008) (“While the weight the district court places on certain factors is reviewed for substantive
The Tenth, as we know is were the majority of USDB habeas petitions come from.
January 6 and Military Criminality: A Dangerous Vulnerability
BLUF: Our active duty and veteran populations are uniquely susceptible to domestic and foreign attempts to subvert U.S. democracy, and current countermeasures are insufficient.
It is currently reported that 81 of the 700 criminally charged in connection with the January 6, 2021 Capitol Hill insurrection have former military service, with a handful still in the military at the time (the latter primarily in the Guard and Reserve). This constitutes approximately twelve percent of those charged, a troubling over-representation of the veterans in the general American population, which stands at almost seven percent.
The numbers are perhaps surprising, given that it’s logical to believe that those with prior military service – indoctrinated during military training to obey command (and ostensibly respect the rule of law) – would fall disproportionally amongst society’s rule followers, and hence be less represented in criminal activity. This isn’t the case: currently, almost 6% of all federal prisoners are veterans, and veterans account for 7.9% of all state prisoners – thus basically tracking the proportion of veterans in society overall. Like non-veterans, veteran federal offenders’ most common felony is drug trafficking (however, veterans are federally convicted of child pornography and sexual abuse crimes at far higher rates, up to four times higher, than that of the non-veteran offender population).
While general veteran criminality thus tracks veteran representation in society overall, the federal sentencing guidelines, the U.S. Supreme Court and a growing number of states treat military service as a mitigating factor to be considered at sentencing. The support of potential leniency in punishment for crimes committed by those with military service is understandable; it is based on recognition of such veterans’ sacrifices in federal service; the well-documented higher rate of mental health challenges amongst veterans; the documented difficulties in transitioning back to civilian life, etc.
Despite the growing trend of special treatment for veterans in American criminal justice systems, what about Janaury 6? Should prior military service lessen the punishment of those involved in the January 6 insurrection, given its uniquely anti-democratic, seditious nature – one vastly different than the average crimes veterans are convicted of? Or should it be somehow aggravating? Shouldn’t military service in fidelity to the Constitution have taught these veterans, more than any other American, that forcibly attempting to obstruct the certification of the presidential election was morally, ethically, and legally wrong, therefore exacerbating their criminality? And what does the greater representation of former military members in the January 6th mob criminality say about the military and our nation?
Yes, prior military service should be considered in appropriate individual mitigation for those charged with January 6 criminality. The service-connected factors that led the federal sentencing guidelines to allow downward departure for military service (and led to the creation of various states’ veterans courts) exist regardless of crime committed. The disproportionately high rate of mental health and related substance abuse challenges amongst the veteran population are only the most obvious factors. They are not crime-specific, and don’t manifest simply in drug-related crimes. They may make individuals, particularly veterans used to belonging to a specific community with shared values and indoctrinated obedience, more vulnerable to group dynamics plus more vulnerable to targeted disinformation.
Second, and related – and perhaps more surprisingly, as well of greater significance well beyond January 6 – is the role of military culture (exacerbated by social media) in veterans’ participation on January 6. That is, it is not simply the higher rate of mental health issues generically in the veteran population that supports allowing military service to play a mitigating role in individual January 6 criminality. It is the fact of military culture itself, and its lasting impact on those who served in uniform.
While military service teaches (and requires) generic fidelity to the Constitution, our armed forces’ training, laws, customs, and operations emphasize to a far, far greater extent the notion of obedience to orders – of fidelity to command (in a very real sense, “rule of law” in the military means rule of the commander). It is part of the military’s very DNA that a superior’s orders constitute the law; ignoring or violating their command is criminal for service members (as long as the order is not clearly illegal, which is a high bar given that all orders carry a presumption of legality).
Buttressing the dynamic of fidelity to command is the unifying and highly motivating concept of patriotism, of pride in country – and the sense of belonging and working toward something greater than oneself. Feeling good about one’s calling, one’s place in life, and about one’s nation is a powerful current that seemingly motivates many service members to serve for years, and is one many veterans strive to recapture after they’ve left the ranks. It is also one that is tapped into by politicians of all stripes, though most flagrantly and dangerously by former President Donald Trump and some of his most vocal supporters.
The dividing line between patriotism and nationalism – even fascism – can be a murky and dangerous one, and January 6th events demonstrate it can be crossed even in this country. It can be crossed even by people who once swore to uphold and defend the Constitution, because their previous fidelity was exploited through social media disinformation, retired senior military officers like Mike Flynn, and most powerfully by a then-sitting President.
Critically, in the hours leading up to January 6’s insurrection, President Trump, the then-Commander in Chief, was directly telling these veterans to “fight like hell,” and calling the crowd “American patriots.” He also said, “We're supposed to protect our country, support our country, support our Constitution, and protect our constitution” – thus framing his call to violent action in the language designed to resonate with former service members and their followers; dog whistle commands issued by a commander to his troops in a language they were trained for years to understand and obey.
The veterans present on January 6 were no longer subject to orders, and of course they were and are individually responsible for their own actions, and should be held appropriately accountable. (As was Jacob Chansley, the infamous Q’Anon shaman and Navy veteran who was recently sentenced to 41 months by a federal judge who himself is a decorated Vietnam veteran; Chansley faced 20 years imprisonment, so perhaps his honorable service did play a small mitigating role, the sentencing transcript is not yet available). But no one should discount the ingrained nature of obedience to a command figure in current and former military members, nor should military service somehow be considered an aggravating factor in January 6 criminality (as natural an impulse as that may initially be for some) – arguably because an essential part of military service makes former members more vulnerable to masterful exploitation of the type that helped produce January 6.
And Trump’s incitement did not occur in a vacuum: the nation is now learning more about the roll disinformation and propaganda played in the time leading up to the January 6 attack on Capitol Hill. As briefly alluded to above, current research is also revealing the dangerous vulnerability of the veteran community to disinformation. Indeed, after the insurrection one expert concluded that “[v]eterans’ patriotism is being weaponized by disinformation in a deliberate effort … to turn our democracy on itself.”
This weaponization is not limited to veterans, though their commission of extremist-motivated crimes has jumped significantly in the last ten years. As several former general officers noted recently, the military itself is not immune to such manipulation, nor to the nation’s deep political divide. They warn of a future breakdown in command as rogue units organize “to support the rightful commander in chief” after the presidential election in 2024, and call for enhanced civic lessons. And the current Secretary of Defense seems to share similar concerns, having implemented a stand-down day earlier this year to train on countering small growing extremism in the ranks. He also recently released new military-wide guidance on what constitutes participation in extremist groups, though two of his top four-star commanders (who command hundreds of thousands of troops) publicly claimed there is no problem, undermining confidence that the uniformed military leadership is appropriately seized of the issue.
So as Fox News continues to blare in military offices around the nation and the globe, as it has for years, and service members and veterans are exposed to ever louder drumbeats of misinformation over social media, one wonders whether individual prison sentences of folks like Mr. Chambley, as appropriate as they may be, will help counteract such messages.
Rachel VanLandingham, Prof. of Law, Southwestern Law School.
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