The "covered offenses" debate resolved in conference

12/7/2021

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;"

UPDATE. Here is a link to the MilJus sections of potential relevance.

Here and here.

Cheers all.

26 Comments

Philip D. Cave link

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.

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?

DON CHRISTENSEN

12/7/2021 04:46:56 pm

The SVP has exclusive jurisdiction over related non covered offenses as well.

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.

Philip D. Cave link

12/7/2021 04:44:53 pm

It would appear the Special TC gets to decide.

Don Christense

12/7/2021 04:50:15 pm

‘‘(B) KNOWN AND RELATED OFFENSES.--
If a special trial counsel determines that a reported offense is a covered offense, the special trial counsel may also exercise authority over
any offense that the special trial counsel determines to be related to the covered offense and any other offense alleged to have been committed by a person alleged to have committed he covered offense.

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.

Richard Stevens link

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...

Scott

12/8/2021 01:07:01 pm

Presumably when SVP prosecutorial decisions still don’t satisfy, prosecutorial decisions will be given to SVCs.

In practice, victims have been the most powerful decision maker in prosecutorial decisions for some time.

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:

"Sentencing reform (sec. 539E)
The House bill contained a provision (sec. 539F) that would amend Article 53 of the Uniform Code of Military Justice (10 U.S.C. 853) and, except in the case of capital offenses, require judge-alone if an accused is convicted by a general or special court-martial. Additionally, this section would establish a Military Sentencing Parameters and Criteria Board to determine sentencing parameters and criteria for the military judge to consider in determining appropriate sentences.
The Senate amendment contained a similar provision (sec. 544).
The agreement includes the Senate provision with an amendment that would make numerous technical and conforming amendments."

I see nothing that this legislation makes any attempt to acknowledge or comply with the SCOTUS decisions in Booker / Fanfan and their holdings that sentencing guidelines are only advisory, not mandatory.

Then there's this, which was an attempt to give some "equal protection" to persons convicted and imprisoned (or sentenced to death) under the UCMJ to their federal counterparts, i.e., post-conviction DNA testing, 18 USC 3600:

“Petition for DNA testing under the Uniform Code of Military Justice”
The House bill contained a provision (sec. 524) that would amend the Uniform Code of Military Justice (UCMJ) (chapter 47, United States Code) to require the Judge Advocate General to order DNA testing of specific specified evidence upon written petition by an accused sentenced to imprisonment or death for a conviction under the UCMJ.
The Senate amendment contained no similar provision.

The agreement does not include this provision.”

Since a large percentage of "sex offenses" involve DNA, either biological fluids or "touch" DNA, what are the Reformers afraid of? Innocence being established via DNA?

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?

Philip D. Cave link

12/8/2021 04:46:37 pm

Check UCMJ art. 56(d).

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.

But, there may be the proverbial "silver lining" to all of this - if PTA's now have to be approved by a SVP, I suspect that there are going to be lots more trials, since the Art. 32, process is useless as a screening device.

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.

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.

Dan

12/10/2021 09:06:51 pm

"An estimated 9.1 percent of junior enlisted women indicated experiencing sexual assault."

https://www.sapr.mil/sites/default/files/DoD_Annual_Report_on_Sexual_Assault_in_the_Military.pdf

Compare that statistic to Appendix 2 on page 17 of the below reference which states that 0.6 percent of women in college experiencing sexual assault.

https://bjs.ojp.gov/content/pub/pdf/rsavcaf9513.pdf

So I was actually incorrect in my first comment and the statistics show that women are actually fifteen times more likely to be sexually assaulted on a military base than they are on a college campus. Being prior enlisted, these statistics are not surprising to me and I would not say that we're comparing apples to oranges nor would I characterize this epidemic as a political narrative. Women in the fleet face adverse working conditions and are often times unsafe in their own barracks room. The military has an obligation to correct this injustice.

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.

I'm not sure how such numbers support this 'modernization.'

RICHARD STEVENS link

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.

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:

"(2) ensure that military defense counsel detailed 14 to represent a member of the Armed Forces accused 15 of a covered offense (as defined in section 801(17) 16 of title 10, United States Code (article 1(17) of the 17 Uniform Code of Military Justice), as added by sec18 tion 533 of this Act) are well-trained and experi19 enced, highly skilled, and competent in the defense 20 of cases involving covered offenses; and"

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.

Richard Stevens link

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...
- All Art. 120 allegations must be believed and must be forwarded accordingly
- All complainants must be supported by the system above any other consideration and at whatever cost to the system
- The case outcome numbers are not acceptable to the politicians
- They blame commanders and convening authorities
- They, therefore, want to replace commanders with the SVP
- They do not expect the SVP to act as we would expect an SVP to act
- They expect the SVP to act based on the mantra that all Art. 120 allegations must be believed, and must be forwarded, and all complainants must be supported no matter the cost to the system
- So, their intent regarding that change, and most of the changes over the past years, has been based on that political narrative and intent...and the endless pursuit of better numbers regarding case outcomes and supporting complainants
- They do not really care WHO makes the decisions, they care what those decisions are and what the case outcomes are

While you say "many of us are worried about defendants," the unfortunate reality is that "us" does not include the politicians who are suggesting these changes. I certainly don't agree with the justification that the politicians "have to do something" so we must accept the changes they seek and the true intent behind those changes.

And, I don't share your optimism that shifting away from commander discretion will improve due process and impartiality for defendants...if SVPs act in the way politicians hope/expect they will act. If SVPs do not act in the way politicians hope they will act, and that actually improves due process and impartiality for defendants as you suggest, the SVP "fix" will be scrapped for something new, because the intent of the change to the SVP system will not have been met.

At the end of the day, one of the biggest issues that is most "problematic" for the politicians and advocacy groups who are seeking these case outcomes is the burden of proof. Unfortunately, for them, BRD is still the burden, and Military Judges and court members are still, in most circumstances, willing to apply the BRD standard to the evidence presented. That accounts for a large proportion of the case outcomes that are so troubling to Senator Gillibrand et al. I'm just waiting for the next set of changes when the numbers still aren't satisfactory to those banging the drums...

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.

Not to disrespect your initial point, history and my own anecdotal experience of 40+ years in the MJ arena demonstrates that - at least at the GCM level - commanders are many times more "just" than the JAGs. Consider the two cases that by-and-large fueled the present controversy: Lt Gen Craig Franklin and Lt Gen (and Astronaut) Susan Helms, who as convening authorities, set aside sexual assault convictions over the objections of their respective SJAs. Or going back to GTMO for a second, the case of Australian David Hicks, whose DC did an end-around and negotiated a PTA with the CA without going through the gov't?

While obviously not common, I have negotiated better PTA's or dispositions by dealing directly with the CA, even though I always tell them that they have the right to have their SJA in attendance. What shocked me was the number of times the CA "waived" the presence of counsel.

Add to this, as someone above commented, the now useless Article 32, process. Many Commanders that I dealt with over the years, would read the 32 ROI carefully before making a Referral decision and many would ask probing questions before making that decision. How the current Art. 32 process contributes to "due process" or even justice in general, remains a mystery in 120 cases and will likely remain so for "covered offenses."

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.

Tracking that the 1A right to redress gives some rights to go direct, but I think most states ethics guidance is hazy on this issue.

Philip D. Cave link

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.

And consider that the government is going to be responsible to make sure this happens. So there is a burden on the government. Which could make for a potentially nice appellate issue if the government fails to comply?

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).

One needs to keep this issue in perspective - i.e., it is more comparable to Corporate, in-house counsel. The "client" is the corporate entity, just as in the military, the client is the Army, AF, Navy, USMC or USCG. A CEO is not generally the "client" of the in-house counsel, although s/he may be.

Timing is also important - something that I should have clarified. I've both researched this for lectures I've given on Ethics and Professional Responsibility, and litigated it. If, e.g., the SJA has NOT provided pre-trial advice in an unreferred case, as long as one tells the CA they have the right to have their SJA present [cf. Miranda/Art. 31 rights], there is no ethical problem. Post-SJA Advice or Post-Referral, I agree that the better practice may be to go through the SJA.

Lastly, I've had at least 2 military judges rule that a CA can waive the A/C privilege over the objections of their SJA's. Both involved "advice" from their SJA on the qualifications of Enlisted NCO's as potential Court Members. One was prudent enough to save the hand-written memo to the CA telling him it "was a complicated case and to only pick E-9's as Members." The Accused was an E-6 . . . . The SJA had a new job 2 weeks later.

But, thanks for engaging in the dialogue here.

Philip D. Cave link

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.

However, what is more troubling to me is the Wright case which followed not too long after. A case where the PHO and SJA recommended dismissing the charges and LtGen Franklin agreed. Not satisfied, "leaders" arranged to have the case moved to Andrews where, IMHO, a tame leader referred. There was an acquittal.

That means, IMHO, the SJA and LtGen Franklin were right (pun intended). This was IMHO an abuse of power on the part of the leaders who moved the case to Andrews or others who cajoled, encouraged, or "directed" such an action. The actions in the Wright case reflect great discredit on Air Force lawyers, the Air Force JAG Corps, and the United States Air Force.

And, the SJA, along with LtGen Franklin suffered the consequences--hardly an advertisement for the fairness of Air Force justice or supportive of those who wish to do the right thing (OMG, another pun?).

Your comment will be posted after it is approved.

CAAFlog

The "covered offenses" debate resolved in conference

Cheers all.

Leave a Reply.

Categories

Archives