On January 12, 2021, the AFCCA denied TSgt Soren G. Gere's petition for a new trial pursuant Art. 73, UCMJ.
Gere opinion here.
Scholarship Saturday: The government makes its first peremptory challenges at the Military Entrance Processing Station
It’s been nearly 33 years since Judge Cox noted that, in trials by court-martial:
The Government has the functional equivalent of an unlimited number of peremptory challenges. . . . The statutory authority to choose the members necessarily includes the corollary right not to choose.
United States v. Carter, 25 M.J. 471, 478 (C.A.A.F. 1998) (concurring opinion by current Senior Judge Walter T. Cox III, of the United States Court of Appeals for the Armed Forces).
In the above quote, Judge Cox was referring to the fact that, in the military justice system, the convening authority who wields prosecutorial discretion also exercises the power (under Article 25(e)(2) of the Code) to pick the members of the court-martial who will decide the case. That is, as this column has discussed in the past, a power which some have described as – as the definition of the word “peremptory” suggests – imperious, dictatorial, and unconstitutional.
But, the government’s selection and exclusion of court-martial members starts long before a convening authority sits down with pen in-hand to pick from a list of names of personnel assigned to his or her command. In the military, the process of selecting court-martial members begins at the Military Entrance Processing Station. The process of excluding members from the military’s general venire occurs in promotion boards, force shaping boards, and through other personnel management actions.
Those personnel practices are the actual means by which the government chooses who will be in its military venire. Those processes are how the government truly exercises its “unlimited number of peremptory challenges.” It is therefore imperative that those practices be free of racial disparity. Unfortunately, that does not appear to be the case. Just last week, Reuters reported that “a long-withheld Defense Department survey” revealed:
31.2% of Black servicemembers reported suffering racial discrimination, harassment or both, compared with 23.3% and 21% for Asian and Hispanic troops surveyed, respectively[.]
Greetings, and no there is not much activity in the courts.
United States v. Walker is a post-trial confinement case. Appellant alleged wrongful denial of prescribed medications at the confinement facility and that the conditions of post-trial confinement were inappropriately severe. Rather than address the issues, the court remanded for a new and correct post-trial action.
POTENTIAL APPELLATE CASES
An Air Force airman in New Mexico is facing a military trial next week in connection with a fatal car crash nearly two years ago. Prosecutors said Airman 1st Class Calvin Cooper is facing charges of involuntary manslaughter, negligent homicide and reckless driving.
An arraignment at Fort Bliss [has] officially launched the court-martial proceedings against an Army private first class accused of sexual assaulting a fellow soldier who was found dead on New Year's Eve. In addition, officials have charged the 21-year-old Alvarado as a serial offender, with the documents detailing two other sexual assaults he allegedly committed against other women in the months after the attack on Graham.
WORTH THE WATCH
Brother Bill sent us a interesting Zoom video. Something I would hope one of us would be inclined to do no matter the frustration. Later reporting seems to indicate the attorney involved is now facing a discipline investigation.
*Brought to you as a product of the MilitaryLawNewsSpeakBureau.
Join us today at noon [open to public]:
A CAAFlog Discussion -- Representing (Alleged) War Criminals
January 22, 2021
Attendance Links [open to public]:
Meeting ID: 994 7088 8693
Dial by your location
+1 646 558 8656 US (New York)
+1 312 626 6799 US (Chicago)
+1 301 715 8592 US (Washington D.C)
Join CAAFlog editors and friends for a one hour lunchtime discussion about the challenges of representing alleged war criminals in courts-martial and military commissions. Co-panelists Michel Paradis and Colby Vokey will each share general thoughts, followed by open comments and questions from the audience.
UNITED STATES v. Radell J. MITCHELL Tech. Sergeant (E-6), U.S. A.F, ACM 39794, 2021 WL 58132 (A.F. Crim. App. Jan. 7, 2021)
AFCCA released its unanimous unpublished opinion in United States v. Mitchell, finding no error and affirming the findings and sentence.
Mitchell opinion here.
Pursuant to a pretrial agreement (PTA), TSgt Radell J. Mitchell pleaded guilty to a single charge and specification of possession of child pornography, a violation of UCMJ Article 134. The military judge sentenced Mitchell to a dishonorable discharge, 26 months’ confinement, forfeiture of all pay and allowances, and reduction in grade from E-6 to E-1. In accordance with the PTA, the convening authority disapproved the total forfeitures, but approved the remainder of the sentence.
On appeal at AFCCA, Mitchell raised four claims, based on (1) post-trial delay; ineffective assistance of counsel due to trial defense counsel’s alleged (2) failure to object to a stipulation of fact and (3) erroneous advice as to the clemency process; and (4) inappropriate severity of the sentence. Finding no error, AFCCA affirmed.
"Senator Kirsten Gillibrand says she will work with colleagues on legislation giving U.S. troops the same legal protections against discrimination as civilian employees, a move advocates say could be a game-changer for minorities in America’s armed forces."
The Felton opinion has me intrigued. Much of my research in my day job involves petty offenses created by local governments. Recent studies of misdemeanor criminal justice systems in the civilian world have centered on an important thesis: they system is "lawless," in the sense that the substantive criminal law does not meaningfully constrain prosecutors or police. The offense elements are basically ignored. See, e.g., Issa Kohler-Hausmann, Misdemeanorland; A. Natapoff, Punishment Without Crime. One famous example in this literature is the offense of taking up more than one seat on the NYC subway. Kohler-Hausmann discovered that while the ordinance requires that the second seat be obstructed when someone else wants to use it, police were arresting and prosecutors were charging even in the absence of this offense-element. They could get away with this because the defendant, often unrepresented, would usually plead guilty to avoid the hassle of fighting the charge.
Felton is encouraging because it shows meaningful attention to the limits imposed by substantive criminal law--even for a petty offense. It reminds me of an Air Force case from a few months ago where the court vacated a conviction for disorderly conduct that was premised on a police officer's impression that the accused was a "smart aleck." The limits of substantive criminal law are enforced by the review for legal sufficiency. In this sense, legal sufficiency review is far more important than factual sufficiency review. It protects innocent conduct from punishment.
Scholarship Saturday: The prosecutor’s dilemma—can the jury, or the court-martial panel, be trusted to get it right on consent?
An upcoming issue of the Southern California Interdisciplinary Law Journal (a publication of the University of Southern California) will feature an article by Dr. Ruthy Lowenstein Lazar exploring the reasons that prosecutors decline to pursue sexual assault cases even when they believe the victim: Epistemic Twilight Zone of Consent (hyperlinked to SSRN).
To explore the question, Dr. Lowenstein Lazar interviewed 29 prosecutors “selected from a list of prosecutors with experience in the field of sexual offenses who handled cases of this type regularly.” The applicability of Dr. Lowenstein Lazar’s work to the American military jurisdiction may be affected by the fact that the prosecutors she interviewed were Israeli civilian prosecutors. In particular, as described by Ariel Bendor in Investigating the Executive Branch in Israel and in the United States, Politics as Law, The Politics of Law, University of Miami Law Review, Vol. 54, No. 2 (2000) at 219, the degree of discretion afforded to Israeli prosecutors is less absolute than that afforded to their American counterparts.
Nonetheless, even with those caveats, Dr. Lowenstein Lazar’s findings are still pertinent to the American military justice context since the prosecutorial authorities of both systems (prosecuting attorneys in Israel, and military commanders, advised by judge advocates, in the American military justice system) “[h]ave similar responsibilities and similar professional duties in the two jurisdictions. [A]lso, in the two jurisdictions, the prosecutorial test is ‘a reasonable prospect of conviction[.]’” Epistemic Twilight Zone of Consent at 5-6. As to the latter point, American military commanders are called upon to follow the Secretary of Defense’s published Non-Binding Disposition Guidance, including its call for them to consider “whether admissible evidence will likely be sufficient to obtain and sustain a conviction in a trial by court-martial.” (The Secretary issued that guidance because he was required to do so by the NDAA for FY 2017, Public Law 114-328 (December 23, 2016), as implemented by Presidential Executive Order 13-825 (83 FR 9891, March 1, 2018).
At its core, Dr. Lowenstein Lazar’s article contends that the decision of whether to prosecute a large volume of sexual assault allegations boils down to a “legal discourse of consent” that is hamstrung by what Dr. Miranda Fricker (Professor, City University of New York) refers to as “epistemic injustice.” Epistemic Twilight Zone of Consent at 26. (Oxford definition: “epistemic, adj.—relating to knowledge or to the degree of its validation.”) Specifically, the article asserts, our collective and dominant (“hegemonic”) understanding of what it means to consent to sex was developed largely without input from women. In other words, our collective interpretation of the circumstances that constitute consent (or lack thereof) suffers from “gendered hermeneutical marginalization.” (Oxford definition: “hermeneutic, adj.—concerning interpretation[.]”). Id.
Dr. Lowenstein Lazar’s interviews with prosecutors disclosed that the effect of having a legal discourse of consent that is overburdened by epistemic injustice is that:
[E]ven when the prosecution recognizes the unique dynamics of sexual abuse and believes the victim, its decision is still dictated by the narrow conception of consent held by the court, or one that the prosecution believes to be held by the court.
United States Court of Appeals for the Armed Forces
In re Court Closure
O R D E R
By order of the Chief Judge, in addition to the previous closure and holiday notice, the United States Court of Appeals for the Armed Forces will be closed all day on Thursday, January 21, and Friday, January 22, 2021. For purposes of computation of time and motions to enlarge time under the Court’s Rules of Practice and Procedure, January 21 and 22, 2021, will be considered days when the Court is closed.
1. On 17 December 2020, ACCA reviewed United States v. Felton, setting aside Private First Class Andre J. Felton’s Specification 5 of Charge II conviction, for using disrespectful language toward a noncomissioned officer (NCO) in violation of Art. 91(3), UCMJ.[i]
Felton opinion here.
Airman First Class Ladarion D. Stanton was found guilty of two specifications of sexual assault, one specification of aggravated sexual contact, and one specification of larceny of nonmilitary property of a value of $500 or less.
Appearing before the CAAF, Appellant argued that his case should “be dismissed with prejudice for breach of a material term of [his] pretrial agreement with the convening authority.” In affirming the decision of the AFCCA, the Court “conclude[d] that the convening authority’s approval of Appellant’s request for a discharge in lieu of trial by court-martial was not a “pretrial agreement” within the meaning of the Rules for Courts Martial (R.C.M.).
The Court further noted that “although the convening authority made some other kind of agreement with Appellant, the convening authority did not expressly or implicitly promise to vacate the finding of guilt and dismiss the charge and specification.”
Stanton Opinion Here
The D.C. Circuit today vacated and remanded the district court's decision in the case of Kareem v. Haspel, which had ruled that the state secrets privilege precluded the probable target of assassination from enjoining the government from carrying out a drone strike against him. The bad news for the plaintiff, however, is that the Circuit ordered the case to be dismissed on the alternative ground that he had failed to demonstrate standing.
As CAAFLog readers might remember, the plaintiff in the case, Bilal Kareem, is a U.S. journalist who has spent much of the past decade reporting from the civil war in Syria. After a number of close calls, specifically five drone strikes in which he was nearly killed, Kareem sued the federal government after he began to fear that he had been mistakenly included on the so-called "Kill List," the individuals for whom the use of lethal force is authorized abroad under the government's acknowledged but still highly classified targeted killing/assassination program. The district court dismissed on state secrets grounds and it looked as if the D.C. Circuit might finally offer some judicial review of the legal parameters governing the program. Alas, no.
In a brief decision written by Judge Karen Henderson, the Circuit unanimously held that Kareem had failed to meet the heightened Twombly-Iqbal plausibility standard for showing that he was in fact being targeted by the United States. The Circuit found it more plausible that Kareem was just in the wrong place at the wrong time, given the intensity of the Syrian Civil War. As a consequence, it found that Kareem lacked standing to press his claims, leaving the merits of the drone program, which has successfully evaded judicial review for over a decade, for another day.
The court has granted a petition in Greer v. United States on the following issue.
Whether, when applying plain-error review based on an intervening United States Supreme Court decision, Rehaif v. United States, a circuit court of appeals may review matters outside the trial record to determine whether the error affected a defendant’s substantial rights or impacted the fairness, integrity or public reputation of the trial.
And the following petition of interest has been filed in Andrews v. New Jersey, by the ACLU and EFF on behalf of the appellant.
Does the Self-Incrimination Clause of the Fifth Amendment protect an individual from being compelled to recall and truthfully disclose a memorized passcode, where communicating the passcode may lead to the discovery of incriminating evidence to be used against him in a criminal prosecution?
Prof. Rachel VanLandingham has a piece in The Hill today that you may find interesting--it is about what actions, if any, should be taken by commanders against servicemembers involved in the assault on Congress. Rachel takes on the now frequent concern about Congress members interfering in specific cases and demanding specific results from courts-martial. One argument she makes is that the feds should take primary jurisdiction over those involved in the recent riotous events. We suspect some may disagree with her.
Read here, Rachel E. VanLandingham, The best way to handle veterans, active-duty military that participated in the Capitol Riot. The Hill, January 14, 2021.
CAAF yesterday released an opinion in US v. Stanton. More analysis to come.
"For reasons that we explain below, we conclude that the convening authority’s approval of Appellant’s request for a discharge in lieu of trial by court-martial was not a “pretrial agreement” within the meaning of the Rules for Courts Martial (R.C.M.). We further conclude that, although the convening authority made some other kind of agreement with Appellant, the convening authority did not expressly or implicitly promise to vacate the finding of guilt and dismiss the charge and specification."
The Joint Service Committee recently posted the Code 146a reports of the four services on FY20 courts-martial data. Consistent with the decades long trend, the number of general and special courts-martial tried was down from the previous year to a record low since the adoption of the UCMJ. In total, the four services tried a total of 1,323 generals and specials compared with 1542 in FY19. What isn’t clear is whether the reduction is a result of the pandemic occurring during the last six months of the fiscal year or merely consistent with the well-established pattern of ever fewer courts-martial being convened.
For example in FY60, the services tried 40,810 general and special courts. Even if adjusted for the smaller total force in FY20 that would still be the equivalent of 21,200 courts today. Obviously, this represents a significant reduction in the rate in which commanders use courts-martial, but I am not aware of any studies into why courts-martial use has seen such a dramatic reduction. I believe it is in part driven by the court-martial now being viewed almost exclusively as a criminal justice process rather than a discipline tool. Consequently, pure discipline issues predominately seem to be handled by administrative actions.
The reports have two other interesting data points worth examining. The first has to do with conviction rates in general courts and the second is the paucity of trials before members. The Marines led the services with a 92% conviction rate while the Air Force again had the worst conviction rate at 69%. The Navy and Army both had a conviction rate of 83%. Of the 720 general courts tried in the four services, the defense won 131 cases, or 18%. In reality though, the defense success rate in litigated cases is certainly much higher as the 720 general courts would include a significant number of guilty plea cases.
Additionally, the numbers also doubtlessly include many cases counted as a conviction by the military where the accused was acquitted of the most serious charges, but found guilty of a lesser charge like underage drinking. It would certainly be helpful to know these numbers as well as the acquittal rates for fully litigated cases. But much to their credit, the defense community is winning at unprecedented rates for their clients, especially in Air Force courts.
One number that I believe might be surprising is how few cases were tried before members. Of the 1323 general and special courts, only 273 were before members or 21%. This is actually quite startling and not entirely attributable to Covid as only 25% were tried before members in the prior fiscal year. Considering that there are several thousand O-3 JAGs in the various JAG Corps, it raises the question of how experienced is the average JAG when it comes to litigated cases before members? This is especially true, as many of these 273 cases would have included sentencing only courts.
Purely for perspective, of the 1,340,000 active duty members, only 1140 were convicted at a general or special court last year. We have thousands of JAGs assigned as trial counsel, defense counsel, appellate counsel, trial judges and appellate judges to achieve these results. Of course this doesn’t count all the paralegals, commanders or convening authorities also involved in the process. Not saying there should be more or less convictions, but that is a lot of manpower for so few.
CAAF held four oral arguments this week--links to the audio.
Tuesday, January 12, 2021
United States v. Thomas E. Mader, III No. 20-0221/MC
(Appellee)(Appellant)(audio -- mp3 wma)Counsel for Appellant: Maj Mary Claire Finnen, USMC (brief) (reply brief)
Counsel for Appellee: LT Jennifer Joseph, JAGC, USN (brief)
Case Summary: GCM conviction of violating a lawful general order and assault consummated by a battery. The granted issue is: Consent is a defense to assault consummated by a battery. The lower court found that even though Appellant had mistakenly believed other Marines consented, no person in any similar circumstances could ever lawfully consent. Did the lower court err?
United States v. Gregory S. Simpson No. 20-0268/MC
(Appellee)(Appellant)(audio -- mp3 wma)
Counsel for Appellant: Tami L. Mitchell, Esq. (brief) (reply brief)
Counsel for Appellee: LT Gregory A. Rustico, JAGC, USN (brief)
Case Summary: GCM conviction of conspiracy to create and distribute an indecent recording, indecent recording, distributing an indecent recording, and assault and battery. Granted issue questions whether it is legally impossible for Appellant to be convicted of distributing indecent images to himself under Article 77, UCMJ, when the plain language of Article 120c(d)(5), UCMJ requires the images be distributed to "another."
ACCA released an unpublished per curiam summary disposition in United States v. Winters, modifying the judgement as requested by both parties.
Winters opinion here.
On 1 April 2020, Sergeant Winters was convicted on the basis of a guilty plea to two specifications of selling military property and two specifications of theft of military property, in violation of Articles 108 and 121.
The sole issue on appeal concerned Winters’ request to waive the automatic forfeitures of all pay and allowances that would have otherwise accompanied his conviction. The convening authority [CA] “approved” this request in a memo dated 7 May 2020. However, when the CA acted on the request on the same day, the CA waived only forfeitures of pay, not allowances. On 12 May, the military judge entered the judgement, copying the language from the CA’s action, which did not waive the allowances forfeiture.
On appeal, both parties agreed that the CA’s action was ambiguous and in conflict with the contemporaneous memo, and requested that the ACCA modify the judgment to reflect the CA’s “clearly expressed intent” to waive the automatic forfeitures of Winters’ pay and allowances. The ACCA did so.
"Among the many calls for accountability for the January 6 putsch at the U.S. Capitol, attention has focused on the involvement of military personnel. These calls, which are entirely understandable given the role of the armed forces in protecting the country, raise a surprising number of legal issues. We will try to unpack a few of them.
Early reports suggest that active, reserve, retired, and former military personnel may have participated in the putsch. It is critical not to make any assumptions until a better grip can be had on the facts of each individual’s case. It is also critical not to treat these distinct categories as if they are legally fungible; they are anything but. And as we explain below, the military justice system could be available for some of these groups, but not others.
However, we argue that even in cases where courts-martial could be used, civilian courts should try those responsible for organizing and participating in the putsch – our civilian institutions of government are open and up to the task, and should be used as a first resort. We also offer avenues of accountability within the military beyond criminal trials."
Full post here.
🚨🚨🚨 "Order Granting Petition for Review
No. 21-0078/AR. U.S. v. Montana J. Miller. CCA 20190597. 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 CONVENING AUTHORITY'S FAILURE TO TAKE ACTION ON THE SENTENCE DEPRIVED THE ARMY COURT OF JURISDICTION UNDER ARTICLE 66, UCMJ.
No briefs will be filed under Rule 25."
"Petition for Grant of Review - Summary Disposition
No. 21-0107/AR. U.S. v. Nidal M. Hasan. CCA 20130781. Appellant's motion to dismiss the pro se petition for grant of review without prejudice is granted."