The central issue in military justice reform has been whether all felonies, or only sex offenses, would be removed from the traditional commander-driven prosecution system. We now know the following offenses will be removed: "‘(17) The term ‘covered offense’ means— 15 ‘‘(A) an offense under section 917a (article 16 117a), section 918 (article 118), section 919 17 (article 119), section 920 (article 120), section 18 920b (article 120b), section 920c (article 120c), 19 section 925 (article 125), section 928b (article 20 128b), section 930 (article 130), section 932 21 (article 132), or the standalone offense of child 22 pornography punishable under section 934 (ar23 ticle 134) of this title;" Cheers all.
26 Comments
12/7/2021 04:19:21 pm
I wonder why no 127 (extortion), 128(b) (aggravated assault), or 119b (child endangerment). We see these offenses in tandem with sexual assaults and domestic violence.
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Scott
12/7/2021 04:32:01 pm
What happens when you have some covered offenses and some non-covered (uncovered?) offenses in the same case?
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DON CHRISTENSEN
12/7/2021 04:46:56 pm
The SVP has exclusive jurisdiction over related non covered offenses as well.
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Hom Tanks
12/7/2021 05:03:41 pm
Will these offenses cover most of the contested cases referred to general court martial?
Brenner Fissell
12/7/2021 05:06:25 pm
HT: that was my first thought. Especially with CP added.
Don Christense
12/7/2021 04:50:15 pm
‘‘(B) KNOWN AND RELATED OFFENSES.--
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Anon
12/7/2021 09:05:36 pm
Keep reading the legislative text. It all goes to MJ for sentencing with guidelines. MJ’s can also reject plea offers. Two years to implement. I think this is the bigger overall change in the system. Clients rarely care who the CA is but they will care what the guidelines are.
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12/8/2021 12:11:58 pm
I wonder what changes Senator Gillibrand et al will be seeking if an SVP actually acts like lawyer is expected to act, and critically evaluates Art 120 cases, and recommends dropping all these weak and dubious cases that are currently going forward? I suspect, that is not the type of "change" Senator Gillibrand is looking for. Then, scrap the SVP, the system is "broken," time for more changes. At what point does society finally get fed up with the endless political pursuit of rubber stamping military members right into a jail cell...
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Scott
12/8/2021 01:07:01 pm
Presumably when SVP prosecutorial decisions still don’t satisfy, prosecutorial decisions will be given to SVCs.
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Donald G Rehkopf, Jr.
12/8/2021 02:40:59 pm
The system is simply broken and the folks attempting to fix it, don't have a clue. Consider this:
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Crim Law Junkie
12/8/2021 03:48:57 pm
The proposed Article 56(c)(2) says the military judge "may impose a sentence outside a sentencing parameter upon finding specific facts that warrant such a sentence" and attaching to the record a written statement of those facts. Doesn't that indicate military judges have discretion to depart from the parameters?
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Donald G Rehkopf, Jr.
12/8/2021 04:58:45 pm
Well, if it's an upward departure, you've got Apprendi issues. And until there's either civilian judges or sufficient tenure for Military Judges, I'm not going to hold my breath for any downward departures.
Dan
12/8/2021 08:21:22 pm
This may be a radical idea but I suggest we let the military implement these changes before deciding that shifting charging authority to a SVP is a failure. As it stands, women between the ages of 18 to 24 are eight times more likely to be sexually assaulted on a military base than they are on a college campus. This inability to protect our own is an embarassment and we should all feel shame knowing that the institutions we love continually fail to protect the most vulnerable within our ranks. Were our civilian overseers supposed to sit back and do nothing to try and correct this injustice? We should adjust fire where we need to when the new measures are implemented and until then keep an open mind.
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Donald G Rehkopf, Jr.
12/10/2021 11:51:46 am
Dan - what is the source of your 8X statistic? Furthermore, unless the definition of "sexual assault" is the same for both groups, it is the proverbial "apples and oranges" comparison.
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Dan
12/10/2021 09:06:51 pm
"An estimated 9.1 percent of junior enlisted women indicated experiencing sexual assault."
Poster
12/10/2021 09:24:22 pm
May 16th posting where D. Christensen responds to D Schlueter in a The Hill article. Can't be sure if those are the source because there is some apples to oranges in there too. Some statements about when X out of Y cases meet condition Z, the system is beyond broken. 12/8/2021 09:43:43 pm
Dan, you are certainly entitled to your opinion, and you are entitled to believe such statistics if that is what you choose to believe. Certainly, sexual assault is an issue in the military and in civilian society. For reasons discussed in previous posts, I do not accept the statistics and the narrative that you apparently accept. More to your point, however, what I do not accept, and what I hope that you would not accept, is to say that because sexual assault (or any crime) exists within the military, that justifies politicians constantly adjusting the law and the system to increasingly limit the rights of the accused and to attempt to stack the deck for the prosecution. Sexual assault briefings are now often misstatements of the law and/or skewed propaganda being delivered directly to actors in the justice system. Clemency is now effectively gone. Article 32 hearings are now practically a worthless speedbump. Victim-centered investigations are now taking place in which military investigators accept what complainants say and allow complainants to provide what evidence they want to provide. Discovery is now a fight like never before. Interviewing key witnesses is now a fight like never before. Etc. Etc. Etc. What I would hope (which hopes have been repeatedly dashed over recent years) is that our "civilian overseers" would not ignore things like the rights of the accused to due process, fair trial, right to present a defense, right to confront their accuser. What I absolutely believe is that innocent military members have been convicted and jailed because of the systemic changes that have happened...because the truth stayed hidden in their cases. If that is so, are you comfortable with that? And, finally, Dan, considering the changes that have taken place in the system, and the political pressure on the system, would you be comfortable as an Article 120 accused in the current military justice system, or if your son was an accused in the system? Would you believe that your rights are a concern? I will never accept the argument that it is justifiable to seek an unfair justice system in order to address a politically-driven narrative or even to address a real issue.
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Brenner Fissell
12/9/2021 10:46:04 am
Richard--I think many of us are worried about defendants. But the shift away from commander discretion will only improve due process and impartiality for defendants. Some of the other things--especially the creation of a second "team" of prosecutors--need to be counterbalanced. Were you at all comforted by this provision:
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12/9/2021 11:46:17 am
Brenner, my prior comments were primarily focused on the politicians' idea that an SVP is necessary to replace commanders, and the REASON behind that proposed change. That reason, of course, is not benign or noble, it certainly has nothing to do with the rights of the accused, and it seems to result from the hangover of some politicians, and other prominent voices on that side, who are obsessed with what occurred in the Wilkerson case so many years ago. That obsession has driven this fairy tale that commanders and Convening Authorities are out killing valid Art 120 cases and must be stopped. For anyone who has practiced in the military justice system, we know that is a false narrative. Nevertheless, the analysis of the political reasoning for the SVP proceeds thusly...
Donald G Rehkopf, Jr.
12/10/2021 12:40:51 pm
Brenner, while I understand where you are coming from, I am NOT comforted by the lip-service paid to detailed defense counsel for covered offenses. Where are they going to come from? There simply aren't more than a few DC in each branch that have the experience and qualifications to provide effective assistance, especially in the more complex cases. Look to GTMO for your answer - "learned counsel" had to be incorporated into the defense mix because of the inexperience factor. I'm reading a RoT now where a Senior DC was in way over their head, and was clueless to some basic issues, e.g., that "sentencing" was a critical stage of the criminal process.
Anonymous
12/10/2021 07:54:54 pm
I have always viewed speaking direct to the commander/CA without going through the SJA as being on thin ice with ethics rules. Most states have something like ABA Model Rule 4.2 which prohibit communications with a represented party. The CA is represented in his official capacity by the SJA. The CA can't waive his attorney being present, only the attorney can. 12/9/2021 11:00:45 am
Hopefully courts will find that this provision is enforceable--especially at the stage of IAC review. One might find that it creates a statutory IAC right that creates a higher bar for DC in covered offense cases than does Strickland.
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Donald G Rehkopf, Jr.
12/11/2021 03:49:38 pm
Anonymous: Rule 4.2 does not prohibit this because an SJA is only the legal advisor to the Convening Authority, which is not the same as representing a client. RCM 103(17). Nor is the CA a "party" to any litigation, RCM 103(16).
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12/11/2021 09:07:31 pm
Don, I am of the opinion that LtGen Franklin erred in the Wilkinson case by setting aside the findings. Based on what I have read the conviction was righteous and should not have been set aside at the CA level.
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