The report of the U.S. Court of Appeals for the Armed Forces for the October 2020 Term (which ended on September 30, 2021) is now available online.
Court of Appeals for the Armed Forces
United States v. Bench. The court has granted an issue.
Whether Lying To A Witness About Appellant's Presence In The Courtroom To Secure Testimony Materially Prejudices Appellant's Sixth Amendment Right To Confrontation.
A panel convicted Appellant of 2x sex abuse of a child and 1x indecent conduct. They sentenced him to 12 years, TF, RiR2E4, DD.
Before AFCCA, and
On appeal, Appellant raises five assignments of error: (1) whether the military judge erred when he admitted statements of a minor child to a therapist; (2) whether Specification 3 of Charge I (alleging sexual abuse of BC) is factually and legally sufficient; (3) whether the record sufficiently demonstrates compliance with Mil. R. Evid. 603 for one child witness, EC; (4) whether the Specification of Charge II (alleging indecent conduct) is factually and legally sufficient; and (5) whether the sentence is unduly severe. As we rely on the same law and standard for issues (2) and (4), we combine the issues into one analysis. We also consider facially unreasonable appellate delay as this opinion was released more than 18 months after docketing.
I don't see anything in the AFCCA opinion related to the granted issue.
"We were appalled but hardly surprised to learn that the head uniformed attorneys, known as the judge advocate generals or TJAGs, for some of the military services are lobbying Congress to remove the provision that would place the new Office of the Special Victim Prosecutor under the service secretaries and instead allow the TJAGs to retain control. To be clear, it is the TJAGs who have vociferously opposed meaningful changes to the military justice system for more than a decade. This is yet another attempt to undermine reform, no matter the damage or cost to morale, readiness, and order. And, it shows utter contempt for the principle of civilian control of the military."
Military justice reform must ensure Special Victim prosecutors are under civilian control
By Jackie Speier and Lynn Rosenthal
Just yesterday some of us asked the question whether the "war" was over and if so, so what.
Abu Zubaydah, the Guantánamo detainee who was tortured close to death by the CIA and who has been held without charge by the US for nearly 20 years, has petitioned a federal court for his release on grounds that America’s wars in Afghanistan and with al-Qaida are over.
Ed Pilkington, ‘Enemy combatant’ held at Guantánamo petitions for release because war is over. The Guardian, Dec. 3, 2021.
On January 1, 2021, the “William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021” became law. Section 554 of the NDAA, “Inspector General Oversight of Diversity and Inclusion in Department of Defense; Supremacist, Extremist, or Criminal Gang Activity in the Armed Forces,” established oversight requirements for programs that are essential to the effectiveness of the DoD, the safety of its military and civilian personnel, and the trust in which it is held by the American people. Section 554(b) requires the Secretary of Defense (SecDef) to establish standard policies, processes, mechanisms, and reporting requirements for prohibited activities, and to submit an annual report to the appropriate congressional committees detailing the implementation of Section 554(b) requirements.
Ten members of the Air Force were investigated for trespassing at the U.S. Capitol during the Jan. 6 pro-Trump riot that briefly shut down Congress, according to new extremism statistics released in a Defense Department inspector general report.
Konstantin Toropin and Travis Tritten, 10 Airmen Investigated for Trespassing at Capitol Riot, New Military Extremism Report Shows. Military.com, Dec. 2, 2021.
Some key points of the report.
From the conclusion.
Although the DoD has not yet issued standard, DoD-wide policy, the DoD has taken the initial steps to fulfill Section 554 requirements. The DoD is in the process of defining extremist activity and updating DoD Instruction 1325.06, which will provide guidance for handling prohibited activities by members of the Armed Forces. A clear definition of extremism reflected in the updated DoD Instruction will enable the Military Departments to identify, track, and report allegations of prohibited activities as required by Section 554.
"As either an authority on civilian protections in urban warfare, or as a commander’s reference for conducting such operations, I regret to report that, in my opinion, this ICRC Handbook is poorly conceived and lacks trustworthy guidance appropriate to its subject."
Read the full review here, of the ICRC's Reducing Civilian Harm in Urban Warfare: A Commander’s Handbook
Comment: As the editor of a book review journal, it is always refreshing to read a trenchant review that does not merely summarize and praise the author.
Yesterday. I read Geoff Ziezulewicz's article, Family of sailor who died by suicide in brig appeals Navy’s denial of medical negligence claim. Navy Times, Nov. 30, 2021.
I had a flashback to one client from almost 20 years ago. Some might say he killed himself for a stupid reason. That would be a "rational" thought perhaps. He had been back at the USDB several weeks when I got the MJ's findings and conclusions from a Dubay hearing. I was mildly ecstatic because there was a good chance ACCA would grant a new trial, so I promptly mailed everything to the client. When the client went to the mailroom to get the letter they refused to give it over. He reacted very badly by grabbing a pencil and stabbing himself in the hand. That got him moved to the SHU where shortly after, he hanged himself.
If you practice long enough, there is a good chance of an accused committing suicide, being stopped in the act, or seriously thinking about it.
A lot of attention has rightly been given to the issue of military suicides and their prevention. For complaining witnesses that's a big part of their program. But I wonder if we give sufficient attention to the mental health and stresses on the accused, especially those who may already have a "history" of mental health issues. In some cases it might be easy to simply to suggest a diagnosis of anxiety due to legal proceedings, but in others?
There are two earlier comments of mine on this subject; Jan. 16, 2010 and Feb. 5, 2010.
Let me say that over the years I have come across many leaders who care and are concerned about the potential mental health and suicide issues with those accused.
Last night I had reread United States v. Nelson. It is worth the read within a larger context as a moment of learning and reflection.
I'm asking you to be sensitive about what may be going on in the accused's mind and to be alert to potential mental health issues. Some issues may be relevant to the case and certainly relevant to a life.
A modest proposal. Many years ago now, at what was then NLSO Norfolk, the government was concerned about the number of R.C.M. 706 requests--they are time consuming and a "burden." So the STC and I got together and developed an in-house "R.C.M. 706A" evaluation, coordinated with the clinic. We agreed that a referral to mental health after preferral would be treated as privileged under the real R.C.M. 706. It was a little more complex than that in operation. But the number of 706 requests went down, there was a better screening mechanism to justify a real 706, and concerns about the accused's mental health were identified and addressed.
This might be done as a modification to the rules on command directed mental health evaluations or through an R.C.M. 706A.
Some final comment on the issue of bi-polar disorder as a defense.
Appellant points to our decisions in United States v. Martin, 56 M.J. 97 (C.A.A.F. 2001), and Harris, 61 M.J. at 391, for the proposition that "[t]he military judge must have known that a bipolar disorder was a viable defense for Appellant." However, these cases establish that bipolar disorder, like other disorders, may exist with enough severity to raise a substantial question regarding the issue of the accused's mental responsibility. However, the disorder does not negate responsibility in all cases. Martin was a contested case in which the defense was attempting to carry its burden of proving lack of mental responsibility due to the severity of the accused's bipolar condition. 56 M.J. at 100-01. Two defense psychiatrists testified that Martin's condition was severe enough that he was unable to appreciate the nature and quality or wrongfulness of his conduct. Id. Conversely, three government psychiatrists testified that Martin could appreciate the wrongfulness of his acts at the time of the offenses. Id. at 101. The question was whether Martin had carried his burden in proving the defense of lack of mental responsibility by clear and convincing evidence, and we concluded that a reasonable jury could have concluded that he did not. Id. at 110.
United States v. Shaw, 64 M.J. 460, 463 (C.A.A.F. 2007).
There is no premium placed upon lay opinion as opposed to expert opinion, nor on “objective” as opposed to “subjective” evidence. Thus, the court below applied an improper test by requiring “clear and convincing objective evidence, not merely subjective medical opinion” of a lack of mental capacity.”
United States v. Dubose, 47 MJ 386, 388-89 (C.A.A.F. 1998).
The CAAF considers that the LMR affirmative defense enjoys a “special status,” which “in part reflects the recognition that combat and other operational conditions may generate or aggravate certain mental health conditions, such as post-traumatic stress disorder.” 64 M.J. at 462. “Historically [the court] has given preferential treatment [to the defense of LMR] even though the matter was not litigated at trial.” United States v. Navarette, 79 M.J. 123, 129 (C.A.A.F. 2021) (Stucky, C.J., dissenting).
Write something about yourself. No need to be fancy, just an overview.
Pentagon Chief Orders New Inquiry Into U.S. Airstrike That Killed Dozens in Syria
"The investigation by Gen. Michael X. Garrett, the four-star head of the Army’s Forces Command, will examine the strike, which was carried out by a shadowy, classified Special Operations unit called Task Force 9, as well as the handling of the task force’s investigation by higher military headquarters and the Defense Department’s inspector general, the official said. General Garrett will have 90 days to review inquiries already conducted into the episode, and further investigate reports of civilian casualties, whether any violations of laws of war occurred, record-keeping errors, whether any recommendations from earlier reviews were carried out, and whether anyone should be held accountable, said the official, who spoke on condition of anonymity because the investigation had not been announced."
Comment: This is a welcome indication that SECDEF is taking this matter seriously. The question on the mind of many, though, is whether an internal investigation is sufficiently independent. Some reactions below.
Ninth Circuit Court of Appeals
Erickson v. Blanckensee, No. 19-16165, 2021 U.S. App. LEXIS 34289 (9th Cir. Nov. 18, 2021) .
Kelly Erickson appeals pro se from the district court's order denying his 28 U.S.C. § 2241 habeas petition.
United States v. Erickson, 63 M.J. 504 (A.F. Ct. Crim. App. 2006) aff'd 65 M.J. 221 (C.A.A.F. 2007) cert. denied Erickson v. United States, 552 U.S. 952 (2007). A GP case in which the MJ sentenced him to Life w/poss. of parole.
The appellant initially asserted four errors for our consideration: (1) sentence is inappropriately severe; (2) ineffective assistance of counsel because his trial defense counsel erroneously advised him that he would be eligible for parole in 10 years so he rejected a pretrial agreement (PTA) that would have limited his confinement to 38 years; (3) MJ erred by admitting uncharged misconduct; and (4) trial counsel improperly compared him to Osama Bin Laden, Adolph Hitler, and the Devil during his sentencing argument. In a supplemental filing, the appellant raised four additional errors: (1) pleas were improvident because of his mental and emotional state at trial; (2) the court-martial lacked jurisdiction to try him because Article 3(a), UCMJ, 10 U.S.C. § 803(a), is unconstitutional as applied; (3) his plea to Charge I and its Specification was improvident; and (4) his plea to Charge IV, Specification 5 was improvident.
63 M.J. at 505.
Following military court proceedings, a federal court may only grant a writ of habeas corpus to "guard against the military courts exceeding their jurisdiction, and to vindicate constitutional rights." Broussard v. Patton, 466 F.2d 816, 818 (9th Cir. 1972) (citations omitted). Review of habeas proceedings "involving military convictions is limited to determining whether the court-martial had jurisdiction of the person accused and the offense charged and whether it acted within its lawful powers." Id. at 818 (citing Sunday v. Madigan, 301 F.2d 871 (9th Cir. 1962)). "[O]nce it has been concluded by the civil courts that the military had jurisdiction and dealt fully and fairly with all such claims, it is not open to such courts to grant the writ simply to re-evaluate the evidence." Id. (quoting Sunday, 301 F.2d at 873). "[I]t is not the duty of civil courts simply to repeat that process—to re-examine and reweigh each item of evidence . . . . It is the limited function of the civil courts to determine whether the military have given fair consideration to each of these claims." Burns v. Wilson, 346 U.S. 137, 144, 73 S. Ct. 1045, 97 L. Ed. 1508 (1953).
2021 U.S. App. LEXIS 34289, at *1-2.
The American Society of International Law has issued a CALL FOR PAPERS FOR THE 2022 LIEBER SOCIETY RICHARD R. BAXTER MILITARY WRITING PRIZE.
The paper should have written/published no earlier than the year prior to the award year, meaning for the 2022 Baxter Prize, papers should have been written or published in 2021.
Information at this link.
Since 2007, the Lieber Society on the Law of Armed Conflict, an interest group of the American Society of International Law, has annually recognized a paper that significantly enhances the understanding and implementation of the law of war (also known as international humanitarian law, IHL). The Richard R. Baxter Military Prize is awarded for exceptional writing in English by an active member of the regular or reserve armed forces, civilian employees of an armed force/ Ministry of Defense (or Department of Defense for the United States), or military service veterans, regardless of nationality.
"[P]laintiffs claim the regulations — governing in each respective branch the availability of a religious exemption from the COVID vaccine and purporting to comply with the demands of RFRA — in reality disguise an unlawful and pervasive policy of the Secretary of Defense and each branch of the armed forces to deny individual consideration of each claim for a religious exemption, to instead “deny them all,” and to punish, possibly by discharge, without exemption and without accommodation, those who assert a sincere religious objection and accordingly refuse the vaccine....
[T]he data produced by the defendants show that more than 16,643 requests for a religious exemption pend. The military has granted no exemptions but has denied hundreds. This disparity, although susceptible to a benign explanation is, as well, susceptible to an explanation actionable and remediable under RFRA."
Navy lieutenant commander arrested on sex trafficking charges in Virginia
"In an audio recording of an all-hands meeting with hundreds of sailors which Military Times obtained, then-Vice Adm. John Aquilino, who was responsible for Navy operations in the Middle East at the time, is heard saying that the cases of trafficking “have spanned rates and ranks, and the large number of them are senior and khakis.”
“Who thinks it’s okay to bring foreign nationals into this nation and take their passport and push them out for service to both yourself and anyone else, one of your buds?” Aquilino asked. “Who thinks that’s okay?”
“Floors me,” he said, according to Military Times. “Absolutely floors me.”"
Link to audio.
"In the torturous history of the U.S. government’s black sites, the F.B.I. has long been portrayed as acting with a strong moral compass. Its agents, disgusted with the violence they saw at a secret C.I.A. prison in Thailand, walked out, enabling the bureau to later deploy “clean teams” untainted by torture to interrogate the five men accused of conspiring in the attacks of Sept. 11, 2001. But new information that emerged this week in the Sept. 11 case undermines that F.B.I. narrative. The two intelligence agencies secretly arranged for nine F.B.I. agents to temporarily become C.I.A. operatives in the overseas prison network where the spy agency used torture to interrogate its prisoners." Link here.
Comment: This definitely undermines the concept of the "clean team" evidence. Interestingly, at a recent GITMO conference at Penn it was disclosed that the prosecution could have easily proved its case without any confession evidence. The prosecution's political overlords, though, directed it to use the confession evidence in order to prove the point that the confessions were not derived from what was legally "torture." One would think that the point of the prosecution was to secure convictions, not to "prove a point."
Air Force Court of Criminal Appeals
United States v. Witt. This was a sentence rehearing in once a DP case, with "An Army military judge due to the fact the Chief Trial Judge of the Air Force had been detailed as trial counsel at Appellant’s initial court-martial."
Seventeen years ago, in the early morning hours of 5 July 2004, Appellant murdered Senior Airman (SrA) AS and SrA AS’s wife, Ms. JS, with a knife. Appellant attempted to murder another Airman, SrA JK, who survived despite suffering grievous wounds inflicted at Appellant’s hands. Later that day, Appellant was apprehended by military law enforcement, and he subsequently confessed to the offenses. Appellant was charged with two specifications of premeditated murder and one specification of attempted premeditated murder, in violation of Articles 118 and 80, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 918, 880.2 These specifications were referred as capital to a general court-martial, and just over a year after his attack, Appellant was found guilty of all three offenses and sentenced to death.
Sentence: LWOP, DD, TF, RIR, and a reprimand.
Issues: Members, Prosecutorial misconduct during voir dire, abuse of discretion as to some evidence, TC XE of a witness lacking a good faith basis. Abuse of discretion in allowing TC demonstrative slide. Risk assessments. TC errors during sentencing argument.
His approach to the argument was to repeatedly ask the members what they “stand for” and where they would “draw the line.”
Finding no prejudicial error, the sentence on rehearing was affirmed.
"A Hanging at CAAF
An art symposium was held at 450 E. Street, N.W., this afternoon, as Judge Scott Stucky regaled his assembled well-wishers with the story of what he called “one of the greatest fiascoes in the history of official portraiture”: Graham Sutherland’s 1954 painting of Sir Winston Churchill. SPOILER ALERT: the tale ends with the portrait, which Churchill considered a monstrosity, being driven to a secluded area, where it was hacked to pieces and—just to be careful—burned. Happily, Judge Stucky pronounced himself well-pleased with his official portrait that was unveiled during the ceremony, so there is no need to fire up the wood chipper. In Judge Stucky’s portrait, his hand rests on Winthrop’s treatise, which sits atop the Constitution of the United States of America: Analysis and Interpretation.
The event closed with Judge Stucky ceremonially passing the Court’s gavel to Chief Judge Ohlson. Judge Stucky was a larger-than-life presence on the bench. For those of us who follow the military justice system’s appellate courts, he is already missed."
After his [Sec Austin] remarks, the House Armed Services Committee announced it would investigate the matter. “Both the incident and the efforts to cover it up are deeply disturbing,” Representative Adam Smith, Democrat of Washington and the chairman of the panel, said in an email to The Times.
-Current Term Opinions
Joint R. App. Pro.
Global MJ Reform
LOC Mil. Law