US v. Long, released yesterday--CAAF held that there was Hills error, and also prejudice.
Scholarship Saturday: The proposal to strip commanders of prosecutorial discretion in all serious cases will be part of the Senate’s version of the 2022 NDAA, but that’s not all
On Thursday (July 22, 2021) the Senate Armed Services Committee (SASC) announced that its members have voted 23-3 to advance the committe markup of the Fiscal Year 2022 National Defense Authorization Act (2022 NDAA) to the Senate Floor. The Committee’s executive summary of the legislation confirms that the bill will include all provisions of Senator Gillibrand’s Military Justice Improvement and Increasing Prevention Act (MJIA). The MJIA was added, whole cloth, to the Senate’s 2022 NDAA bill during a markup hearing held on Tuesday (July 20,201) in the SASC’s Subcommittee on Personnel.
SASC’s 23-3 decision to include the MJIA (which enjoys bi-partisan supermajority support) in the markup represents a rejection of the Department of Defense’s insistence that commanders should retain the power to determine whether military justice cases are prosecuted, at least as regards offenses that don’t involve sexual assault. That insistence was voiced most recently by the Deputy Secretary of Defense in testimony before the House Armed Services Committee (HASC).
The fact that commanders are being drummed out of the military justice system is certainly dramatic, but, as this column noted back in early January (Scholarship Saturday: We hear drums, drums in the deep), it is hardly a surprise. This development is at least a decade in the making.
Indeed, the fact that commanders are being ousted from yet another part of the military justice process is, perhaps, not even the most interesting provision in the SASC markup of the 2022 NDAA. As the rest of this article discusses, the fact that SASC’s markup of the bill challenges nonunanimous verdicts could turn out to be far more interesting.
News about the debate on military justice reform is about to shift from focus on the Senate to the House.
Representative Speier has introduced H.R.4104, Vanessa Guillén Military Justice Improvement and Increasing Prevention Act. The Act is "a companion to S. 1520." The bill was introduced in the House and referred to the House Armed Services Committee on June, 23, 2021. There are 206 co-sponsors.
The legislation introduced Wednesday combines Gillibrand’s bill with the I Am Vanessa Guillen Act, a House bill that would change the reporting process for sexual harassment and assault in the military and allow service members who are victims to seek monetary damages from the Defense Department.
Reports the Stars & Stripes.
While addressing the problem after it arises is good, former active duty Marine Kelsey Baker reminds us that "Ending military sexual assault starts long before service members don uniform." This point came to mind this AM because we (on the outside) saw another question from a person denied enlistment because of a "felony" conviction.
Cheers, Phil Cave
2d Circuit, U.S. Court of Appeals
Fed. R. Evid. 704(b), like the military rule has restrictions on what an expert can testify to when giving an opinion. Prof. Colin Miller (a favorite of ours) leads with,
So, assume that a defendant with PTSD is charged with various child pornography charges and raises an insanity defense. Would it violate Rule 704(b) if a forensic psychiatrist answered the following question: "And a person suffering from Posttraumatic Stress Disorder, can that, in your opinion to a reasonable degree of psychiatric certainty, can that affect an individual's ability to appreciate that his conduct is wrong?"
In United States v. Jakes-Johnson, 2021 WL 2944574 (2nd Cir. 2021), the trial court said yet, the Rule would be violated and prohibited the question. Not so fast says the Second. They focusing on the actual question asked of the witness--which was could it of done, not did it. That's a different question and importantly for the Second, did not go to an ultimate in issue to be decided by the jury. A pyrrhic victory because the court found the error to be harmless.
Western District of Virginia
United States v. Brown, 2021 U.S. Dist. LEXIS 132060 (W.D. Va. Jul. 15, 2021), is a Peña-Rodriguez v. Colorado, case. Appellant alleged that a juror exhibited racial animus against him in deliberations because he was of Mexican heritage. The court denied a motion for a new trial because the assertion did not meet the second prong of Pena-Rodriguez test: there was no showing of a causal connection between the alleged animus and the decision to convict. Without both prongs being satisfied Rule 606's prohibition will not be lifted.
Sources tell us that the Military Justice Review Panel is non-functioning. Despite having a report due in two months, members received a message today stating "We remain in a 'stand by' status for the MJRP and appointment of members.” The members were actually appointed in December of last year. It goes without saying that 2021 is bad year to have this panel dead in the water.
The Secretary of Defense shall establish a panel to conduct independent periodic reviews and assessments of the operation of this chapter. The panel shall be known as the “Military Justice Review Panel” (int this section referred to as the “Panel”).
Aricle146, UCMJ, 10 U.S.C. § 946(a). For all intents and purposes the MJRP is intended to replace the CAAF Code Committee.
MJIIPA (bill including most felonies) passes in full Senate Armed Services Committee.
See also here.
Debate occurs at the House.
-One new tidbit in the above article is the revelation that SECDEF opposes the bill. This is new. "In some cases, Austin has privately been phoning Democrats to oppose it."
One thing should now be clear: there will be a removal of offenses from commander discretion. It is just a question of which.
In Willman, CAAF holds that a CCA does not "have authority to consider outside-the-record evidence submitted in support of an appellant’s Eighth Amendment or Article 55, UCMJ, claims when performing sentence appropriateness review under Article 66(c), UCMJ." The court concludes that the plain language of Article 66, UCMJ, and the decision in United States v. Jessie, 79 M.J. 437 (C.A.A.F. 2020) require this conclusion. AFCCA's Willman decision is affirmed. (Judges Sparks and Ohlson dissented.) At AFCCA, Willman complained that he,
suffered cruel and unusual punishment in violation of the Eighth Amendment and Article 55, UCMJ, 10 U.S.C. § 855, when he was not given proper medical treatment while in confinement. Alternatively, Appellant contends that the conditions of his post-trial confinement render his sentence inappropriately severe, warranting relief under Article 66(c), UCMJ, 10 U.S.C. § 866(c).
In Jessie, the ACCA, sitting en banc, concluded they had no authority to consider the appellant's First, Fifth, Eighth Amendment claims about conditions of post-trial confinement, and that to do so would be "inappropriate." (Four of ten judges dissented.) Jessie was one of the cases complaining about being deprived of contact with his minor children while confined at the USDB. CAAF affirmed the ACCA. In Jessie, CAAF made several points about a CCA's "broad discretionary power" of review as to sentence.
[I]nclude[s] the "record of trial" and "allied papers." Under the Rules for Courts-Martial (R.C.M.) applicable to this case, the "record of trial" contains all of the items listed in R.C.M. 1103(b)(2), and the "allied papers" are items now identified as "matters attached to the record" in accordance with R.C.M. 1103(b)(3). In addition, the "entire record" also includes briefs and arguments that government and defense counsel (and the appellant personally) might present regarding matters in the record of trial and "allied papers."
79 M.J. at 440-41 (emphasis added).
We can, again, glean several points from Willman, Jessie, United States v. Healy, 26 M.J. 394 (C.M.A. 1988), and United States v. Fagnan, 12 C.M.A. 192, 30 C.M.R. 192 (1961).
Cheers, Phil Cave.
No. 20-0345/AR. U.S. v. Jacob L. Brubaker-Escobar. CCA 20190618. Upon consideration of Appellant's and Appellee's joint motion to file out-of-time a petition for reconsideration and the parties' joint motion to withdraw the mandate for this Court's opinion of June 4, 2021, citing for the first time a statute directly relevant to the granted issue, it is ordered that the motion to file a petition for reconsideration out-of-time is granted, that the petition for reconsideration is granted, that the mandate issued on June 22, 2021, United States v. Brubaker-Escobar, 81 M.J. __ (C.A.A.F. June 4, 2021), is recalled and the judgment is vacated, and that no additional filings are authorized. Further action on the case shall be held in abeyance pending a new decision issued by the Court. "
The CAAF daily journal has a teaser Filing:
No. 21-0319/AF. In re Damien G. Kawai. Notice is given that a petition for extraordinary relief in the nature of a motion for compassionate release and reduction in sentence pursuant to 18 U.S.C. § 3582(c)(1)(A)(i) was filed under C.A.A.F. Rule 27(a) on this date.
I may have missed it, but I do not see any orders or opinions on this issue at AFCCA?
In United States v. Kawai, No. 35366 (A.F. Ct. Crim. App. Oct. 2, 2007), reports the decision of the AFCCA after a rehearing.
At the first trial, MJA, Appellant plead guilty to unpremeditated murder, larceny, and obstruction of justice--and the government proved up the premeditated murder. Appellant was sentenced to Life. The AFCCA set-aside the obstruction of justice which lead to a rehearing, reconviction, and the same sentence. The first opinion, with detailed facts is at 63 M.J. 591 (A.F. Ct. Crim. App. 2006) aff'd 66 M.J. 495 (C.A.A.F. 2008) (summ. disposition).
The appellant and A1C E, who were co-workers, socialized together on the evening of 16 November 2001. They visited a friend in the hospital who had just given birth to a baby. Thereafter they stopped to buy dinner and some alcoholic beverages. They returned to A1C E dormitory room where they began drinking and watching movies. By late evening, A1C E became very intoxicated, to the point that he vomited and soon thereafter fell asleep. The appellant and another airman4 helped A1C E get into bed. While A1C E lay on the bed, the appellant placed his hands around A1C E neck and put a pillow over his face. Once dead, the appellant cut A1C E wrist with a knife. Before leaving A1C E room that night, the appellant took the victim’s TV, DVD player, VCR, DVDs, videos, and CDs.
Cheers, Phil Cave
Can't think of much to say about this one.
Order Granting Petition for Review
No. 21-0245/AF. U.S. v. Isaiah L. Edwards. CCA 39696. 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 issue:
WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY ALLOWING THE VICTIM TO PRESENT AS AN IMPACT STATEMENT A VIDEO—PRODUCED BY THE TRIAL COUNSEL—THAT INCLUDED PHOTOS AND BACKGROUND MUSIC.
Briefs will be filed under Rule 25.
Ali J. ALKAZAHG
1. That the Court will hear oral argument on the following Assignments of
I. Does Chevron reliance under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), apply to criminal statutes and—if so—is this Court bound by the Government’s specific disclaimer of reliance on Chevron?
II. Is a bump stock a machine gun under 26 U.S.C. § 5845(b)?
Air Force Court of Criminal Appeals
United States v. Lopez. In this GP case the Appellant was sentenced to 50 days, a BCD, but no reprimand. Appellant had, multiple times, used an intoxicating substance, marijuana, and LSD.
After remand to the convening for corrective action on post-trial errors, the Appellant appeared again to have addressed his previously filed three issues: did the CA err by acting before there was time to complete a "substantial assistance" memorandum, were the STR and EoJ wrong; and whether his post-trial confinement was "cruel and unusual?"
While AFCCA found no error, the discussion of the SAM is worth a read.
Appellant acknowledges that the new Articles 60a and 60b, UCMJ, and the Rules for Courts-Martial that went into effect before the charges in Appellant’s case were referred for trial no longer require written advice from the SJA to the convening authority regarding action, only that the convening authority consult with the SJA before taking action. See 10 U.S.C. §§ 860a, 860b; R.C.M. 1109(d)(2); Executive Order 13,825, § 2, 83 Fed. Reg. 9889 (8 Mar. 2018). However, in Appellant’s view, therein lies the heart of the problem; he asserts that without a written SJA recommendation, this court can have no confidence the convening authority received complete and accurate advice. Appellant contends this concern is particularly acute in a case such as this where, he asserts, the trial counsel’s substantial assistance memorandum expanded the convening authority’s power to grant clemency to include the ability to modify his bad conduct discharge. Appellant further argues that under the rules in effect prior to 1 January 2019, the substantial assistance memorandum would have been attached to the SJAR or to an addendum to it, and thus would have been provided to the Defense.
Based on the changes to the post-trial process, Appellant's lack of transparency argument fails. This is so because the previous modicum of transparency is "no longer required by statute, executive order, or regulation."
United States v. Bah. In this mixed plea case Appellant was sentenced to six-months, a BCD, and a reprimand. Appellant pleaded guilty to going UA and making a false official statement. The MJ found him guilty of an A&B. On appeal, appellant questioned the legal and factual sufficiency of the A7B conviction and claimed the charge should have been dismissed in response to a defense motion on a discovery issue. Bah! says the court.
The defense called a supervisor of Appellant to say he had been a good worker. When the TC cross-examined, 'unhelpful' statements of Appellant to the witness were elicited. The defense objected for failure to provide a MRE 304(d). The MJ excluded the testimony. Then defense then moved for dismissal or mistrial for a claimed Brady violation.
(Note for DC: all of this happened because, "when [the witness] spoke with trial defense counsel the week prior to trial, they did not ask him whether Appellant had made any statements about the alleged assault. However, when trial counsel interviewed him after the Defense spoke with him, XXX did provide information about Appellant’s statement." Had the questions been asked, the value added of a good military performance witness being devalued substantially would have been obvious. The TC was clearly wrong on the MRE 304(d), a cynic might think this was a sandbagging.)
Navy-Marine Corps Court of Criminal Appeals
United States v. Greene. In this GP case, Appellant willfully disobeyed a senior officer, violated a general order, abused his position as a recruiter, and was engaged in adultery and extramarital conduct. For which he was sentenced to 30 days, RIR from E-6 to E-1, and a BCD. He argued the BCD was too severe of a sentence. NMCCA didn't agree with him.
Not a likely appellate case anymore
Remember the Marine Raider found guilty of involuntary manslaughter in the 2017 hazing death of a Green Beret in Mali? Well it appears the sentence "decided by the jury, will include reprimand, reduction in paygrade to E-1, performing hard labor without confinement for 90 days and confinement for six months, according to his defense lawyer."
Worth the read
Jon O. Newman, On Reasonableness: The Many Meanings of Law's Most Ubiquitous Concept. 21 J. Appell. Prac. & Process 1 (2021).
In many cases, appellate courts also invoke the concept of reasonableness without explaining it, but in some cases, they have tried to give meaning to “reasonableness,” the law’s most ubiquitous concept. Four different approaches can be identified, three of which employ what generously can be called an analysis, and a fourth, if it can be called an approach at all, that seems to lack any analysis. This article will consider each of these four approaches in three contexts in the hope that the resulting twelve sections will promote some understanding of what courts are not just saying, but actually doing in cases where “reasonableness” is the applicable standard.
S&S: "Retired Marine sues Navy and Defense Department over denied promotion following false accusations his team killed civilians"
Full story here (with PDF of complaint):
"Maj. Fred Galvin of Platte City, Mo., is suing acting Navy Secretary Thomas Harker and Defense Secretary Lloyd Austin in Washington, D.C., District Court to overturn a decision in 2018 by the Board of Correction of Naval Record not to award him a post-service promotion to lieutenant colonel, according to court documents.
Galvin was first denied promotion after receiving a poor fitness report — “the first ever in his career” — following accusations of his team “firing indiscriminately at civilians” in Afghanistan in March 2007 when he led a Marine special operations company there, according to the lawsuit, which was filed Wednesday.
The accusations, which were later disproven, stemmed from a March 2007 incident when Galvin and 29 other Marines in his company were ambushed by a suicide bomber and roadside fighters before Galvin’s company returned fire and escaped, according to court documents."
This story from "The War Horse News" from February. Thoughts?
Updated: apparently the Ohu case is now big news today. See this Task and Purpose article:
"Ohu’s story is a complicated one and touches on a range of issues that the military is grappling with, from sexual assault, to mental health care, and how commanders respond to troops in a crisis. Experts say it is also a glaring example of the ways that the military justice system sometimes caves to the power wielded by individual commanders."
Polling by Data for Progress shows that 69% of respondents (likely voters) supported "replacing military commanders with military lawyers as prosecutors for sexual assault."
Phil previously mentioned the verdicts last week. Here is the sentence: "6 months of confinement, a reduction in rank, and an additional 90 days of hard labor." Maximum punishment was 27.5 years. Prof. VanLandingham calls this sentence an "abomination" that indicates a problem with member sentencing. But this is a case of unintentional killing, and one should also note that the accused was not the actual killer (he did not place the victim in the chokehold). His culpability is therefore substantially reduced. The infamous Penn State hazing case is a civilian comparator. There, the most culpable defendant received nine months from a state judge (he pled guilty).
Military commission proceedings resume today at 10:00AM Eastern for the first time since the beginning of the COVID pandemic. I happen to be near Fort Meade and plan to go watch for the morning. You might wonder why. Well, I have the sense that watching these proceedings in 2021 is like watching the dinosaurs roam just before the asteroid hits.
Update: Denied entrance to Fort Meade due to a non-REAL ID NYS driver's license.
The U.S. Government Accountability Office has just issued a report titled Military Training: The Services Need to Ensure That All Commanders Are Prepared for Their Legal Responsibilities.
The report suggests that commanders may not be as legally equipped and trained in military justice matters as some argue.
GAO also found, through analyses of the legal training offered and from discussion groups and interviews with commanders and legal support staff, that perspectives varied on the general preparedness of commanders to address legal issues. In addition, GAO found that the timing, amount, and mix of legal training provided to commanders may not be meeting their needs.\\
All credit to a summary at GMJR.
From Carol Rosenberg at the NYT:
"General Martins submitted his retirement papers on Wednesday after repeatedly butting heads with Biden administration lawyers over positions his office had taken on the applicable international law and the Convention Against Torture at the Guantánamo court, according to senior government officials with knowledge of the disputes....A key point of contention was a recent decision by General Martins to use a statement that a man accused of orchestrating the U.S.S. Cole bombing in 2000 had made to the C.I.A. while being tortured to make a point with the military judge presiding in that case, which is also a death-penalty prosecution."
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