"Racism has long corrupted American military justice – famously exemplified by the 1917 Houston riots, which resulted in the Army’s summary execution of 19 African American soldiers after sham trials. In 2019, the Government Accountability Office found that in the Army, Navy, and Marine Corps, black service members “were about twice as likely as white servicemembers to be tried in general and special courts-martial.”
Such disparities still exist within the American military’s criminal justice and disciplinary systems, and demand action.
This is precisely why the National Institute of Military Justice, HOFSTRA University - Maurice A. Deane School of Law, and Southwestern Law School's Armed Forces Law Society are co-hosting this important event.
Moderator Rachel Van Landingham - NIMJ President-elect, Professor of Law, Southwestern Law School, Lt Col, USAF (ret.), will lead a candid discussion with an impressive panel including:
Please join us on Wednesday, February 24th at 6:00 p.m. Eastern/3:00 p.m. Pacific.
Click here or use ZOOM ID: 967 4003 3994 and Passcode 165249."
Event Link here.
(AP Photo/Ted S. Warren) reported in The Times of Israel, Survey finds 3 in 10 Republicans believe QAnon child sex-trafficking theory. 15 February 2021.
In addition to crediting the photographer, the paper has this further comment to the photo, "A person dressed as Lady Liberty wears a shirt with the letter Q, referring to QAnon, as protesters take part in a protest, Wednesday, Jan. 6, 2021, at the Capitol in Olympia, Wash., against the counting of electoral votes in Washington, DC, affirming President-elect Joe Biden's victory."
Without the uniform nothing wrong, but with it . . . ?
Cheers, Phil Cave.
VOLUME 49 | ISSUE 1 | FALL 2020
TABLE OF CONTENTS
Table of Contents for Notes
Legal Ethics and Modern Military Justice
Is Demilitarizing Military Justice an Ethical Imperative for Congress, the Courts, and the Commander-in-Chief
By Dan Maurer
Fears of Tyranny: The Fine Line Between Presidential Authority over Military Discipline and Unlawful Command Influence Through the Lens of Military Legal History in the Era of Bergdahl
By Joshua Kastenberg
Court-Martial Sentences: Time for More Transparency
By Christopher E. Martin and Timothy P. Hayes, Jr.
A House Divided: The Unique Ethical Dynamic of Civil and Military Co-Counsel Relations in Court-Martial Defense
By Robert E. Murdough
Judicial Disclosure and the Judicial Mystique
By Michel Paradis
At the Elbow and Under Pressure: Legal, Military, and Intelligence Professionals
By Dakota S. Rudesill
Probable Cause and the Provable Cause: Bridging the Ethical Gap that Exists in the Military Justice System
By Mitchell M. Sullivan
Ordering Injustice: Congress, Command Corruption of Courts-Martial, and the Constitution
By Rachel E. VanLandingham
One of the more prominent means by which our nation acquires commissioned officers is through a system of service academies and senior military colleges. Specifically, Congress has established four service academies and acquiesced to a fifth: the Military Academy, Naval Academy, Air Force Academy, and the Merchant Marine Academy are all creatures of statute – 10 U.S.C. § 4331, 10 U.S.C. § 6951, 10 U.S.C. § 9331, 46 U.S.C. § 51301, respectively. There is no statute which establishes the Coast Guard Academy, but Congress has acknowledged its existence and provided for its regulation in 14 U.S.C. § 181. Additionally, in 10 U.S.C. § 2111a(f), Congress designated six “senior military colleges” whose graduates may, if they desire, enter active duty as commissioned officers. Those senior military colleges are: Texas A&M University, Norwich University, Virginia Military Institute, The Citadel, Virginia Polytechnic Institute and State University, and the University of North Georgia.
To aid in the development of aspiring officers, each these institutions employ “honor systems” to instill discipline in their corps of cadets or midshipmen. Those systems have been busy of late. For example, a couple of weeks ago, the Air Force Academy announced that it is reevaluating its honor program on account of a recent cheating scandal involving 249 cadets. West point is embroiled in its own cheating scandal, involving 73 cadets, that has so shaken the institution that one of its own professors, Tim Bakken, told NPR recently that, in his view, the cheating at West Point is emblematic of a military establishment which, “by many accounts, has been very dishonest with the American public over the last 75 years. And that has only resulted in failed wars or, if we don't like that expression, we certainly have not won any of the last four wars we've fought since 1945.”
We have an update on the ongoing case of a military judge's recusal.
CAAF has decided United States v. Brown, in which the court affirms NMCCA's decision that it had potential jurisdiction over Brown's petition for a writ.
The NMCCA decided United States v. Adad, a case in which Appellant submitted no errors. The court itself identified two issues one of which we should talk about: that “the trial defense counsel argued for a bad-conduct discharge [BCD] without making a sufficient record that such advocacy was pursuant to Appellant’s wishes.”
During his sentencing argument, the defense counsel explicitly asked the military judge to “give [Appellant] eighteen months of confinement and a bad-conduct discharge.” The defense counsel also made several similar statements including, “[Appellant’s] place is not in the Navy anymore,”6 and “we agree a punitive discharge is the right way to go . . . .”
In the Navy we call this a “BCD striker” case. The court acknowledges a likely tactical move but, “Nevertheless, where defense counsel argues for “a punitive discharge, even as a tactical step to accomplish mitigation of other elements of a possible sentence[,] counsel must make a record that such advocacy is pursuant to the accused’s wishes.”
The court concludes on a point with which I disagree, “despite defense counsel’s explicit argument for a BCD, the record is silent regarding Appellant’s wishes concerning imposition of a punitive discharge. That is error.” To me this is not error unless the appellant raises it and proves it—which in this case he did not.
*A Navy bootcamp graduate who goes to a command without attending “A” School (AFSC, AIT, MOS) training for a particular rating (job skill), may, once they report to their command begin a process of on-the-job training and specialization for a rating—striking for the quartermaster rating perhaps.
In United States v. Uribe, a divided court upheld Staff Sergeant Ryan Uribe’s conviction on one specification of Article 120, UCMJ, despite his claim that the military judge abused his discretion by rejecting a joint motion to recuse him.
The USNI News has the redacted record of trial in United States v. Gallagher—it is 4205 pages.
Cheers, Phil Cave.
SUPREME COURT OF MONTANA Montana v. Mercier (a pre-COVID case).
QP: Was Mercier denied his right under the United States and Montana Constitutions to confront witnesses against him when the State presented a foundational witness in real time by two-way video-conference? The court held that “that this two-way video-conferencing testimony violated the Confrontation Clause[.]
Courts have interpreted the Supreme Court's opinion in Maryland v. Craig, as creating an exception to the Confrontation Clause if two prongs are satisfied: it must first be shown that denial of physical face-to-face confrontation is necessary to further an important public policy....The second prong of the Craig analysis requires the trial court to determine that reliability of the testimony is otherwise assured. State v. Mercier, 2021 WL 248487 (Mont. 2021).
The State urges that the nature of the testimony—foundational with no substantive force—weighs in favor of approving the video testimony. However, nowhere in the text of the Confrontation Clause is there language limiting the type of testimonial evidence to which the right to physical confrontation applies....
The court noted that “[Craigs] continuing utility has been questioned in two major respects; first, whether its analysis extends to two-way video procedures has led to a circuit split in the federal courts. Slip op. at 12 (citations omitted). The court found the error harmless and affirmed the conviction and sentence.
U.S. DISTRICT COURT
An interesting approach. Apparently, this was “not a real good warrant.” The "court evaluates good faith first, probable cause second. The nature of the inquiry sets up the second answer. If the GFE applies, PC is close enough; if not, probable cause isn’t likely there." See United States v Guerra, 2021 U.S. Dist. LEXIS 21080 (S.D. Tex. Feb 2, 2021).
My pet project this spring is to investigate prison conditions in the brigs and at Leavenworth. Hopefully next week I will be receiving the results of a FOIA request for all Article 138 complaints at the Marine Corps Brigs. My motivation was the seemingly black box of the prisons, and a series of ACCA opinions dispensing with conditions of confinement claims in footnotes (without any reference to the basis for the claim).
Thus, I want to commend AFCCA for the below opinion (download below) in Merritt. The prisoner in this case has a very weak claim for an Eighth Amendment violation--a failure to provide sterile water for his CPAP machine. Nevertheless, the court engaged in an extensive analysis of the relevant law and decided the case. The legal discussion alone was very helpful as a guide for practitioners. The dissenting judge also raised important issues with the various doctrinal bars to relief in this area. The most significant bar, of course, is the administrative exhaustion requirement. A crusty CPAP machine does not cry out to heaven for redress, but that is not the point. The point is that the same difficulties in getting relief for this claim apply also to serious claims (at least with respect to exhaustion).
21-0150/NA. United States, Appellee/Cross-Appellant v. Paul E. Cooper, Appellant/Cross-Appellee. CCA 201500039. Notice is given that a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 on this date.
DID THE LOWER COURT ERR APPLYING UNITED STATES V. CHIN, 75 M.J. 220 (C.A.A.F. 2016), (A) AS A PREREQUISITE TO CONSIDERING INEFFECTIVE ASSISTANCE OF COUNSEL, AND (B) TO DISREGARD THE KNOWING, VOLUNTARY, AND R.C.M. 905 WAIVERS, OF INDIVIDUAL MILITARY COUNSEL?
In 2014, Appellant was convicted, contrary to his pleas, of three specifications of sexual assault and one specification of abusive sexual contact, in violation of Article 120, Uniform Code of Military Justice [UCMJ]. In 2015, this Court ordered a DuBay hearing to ascertain whether Appellant's trial defense counsel [TDC] was ineffective in failing to submit Appellant's request for a certain Individual Military Counsel [IMC]. The DuBay military judge found that Appellant did make an IMC request to his TDC, who did not properly forward it for action by the appropriate approval authority, and that the IMC would have been reasonably available for his trial. Based on that, in 2018 we set aside the findings and sentence and remanded the case for a new trial. But the Judge Advocate General of the Navy certified the case to the Court of Appeals for the Armed Forces [CAAF], asserting, among other things, that during the trial, Appellant waived his right to an IMC during a colloquy with the military judge. CAAF agreed that Appellant waived his right to an IMC, declined to reach the remaining certified issues, and remanded to this Court to resolve the remaining assertions of error, which include whether Appellant's TDC was ineffective for failing to submit his IMC request.
United States v. Cooper, No. 201500039, 2020 CCA LEXIS 440, at *1-3 (N-M Ct. Crim. App. Dec. 10, 2020).
Cheers, Phil Cave
Wednesday, February 10, 2021
United States v. Eric R. ProctorNo. 20-0340/AF
(Appellee)(Appellant)(audio -- mp3 wma)Counsel for Appellant: Capt Ryan S. Crnkovich, USAF (brief)
------------------------- (reply brief)
Counsel for Appellee: Maj Jessica L. Delaney, USAF (brief)
Case Summary: SPCM conviction of disobeying a lawful command, assault and battery, and communicating a threat. Granted issue is whether at an all-call prior to Appellant's court-martial, Appellant's squadron commander sought to address his "NCO problem" by highlighting the negative career impacts someone could suffer if they provided a character letter for an accused airman. Did the Air Force Court err when it found beyond a reasonable doubt, that this unlawful command influence did not place an intolerable strain on the public's perception of the military justice system?
United States v. Matthew C. HarringtonNo. 21-0025/AF
(Appellee)(Appellant)(audio -- mp3 wma)Counsel for Appellant: Capt Alexander A. Navarro, USAF
Counsel for Appellee: Maj Dayle P. Percle, USAF (answer)
Case Summary: Appellant is pending rehearing at a GCM, from which the United States successfully undertook appeal under Art. 62, UCMJ. The granted issue is as follows: Appellant's conviction was set aside due to the original trial judge's failure to allow the defense to introduce exculpatory evidence about the complaining witness's behavior right before the alleged sexual assault. The exculpatory evidence is no longer available after a government delay in bringing the case to a rehearing. Did the Air Force Court err by overruling the military judge's decision to dismiss the charge for a speedy trial violation?
Cheers, Phil Cave
Today, CAAF will hear oral arguments in United States v. Eric R. Proctor. CAAF granted review on the following issue:
Did the Air Force Court err when it found beyond a reasonable doubt that this unlawful command influence did not place an intolerable strain on the public's perception of the military justice system?
CAAF Briefs Here.
Judge Ohlson wrote for himself and Judge Sparks finding that the judge erred in not recusing himself but Appellant was not prejudiced. Judge Maggs wrote for himself and Judge Crawford concurring in the judgement but disagreeing that the military judge abused discretion. Chief Judge Stucky concurred in part and dissented in part.
The military judge and senior trial counsel in this case “became friends” approximately four years before Appellant’s general court-martial. At trial the defense, joined by the Government, filed a motion to recuse the military judge because of this friendship but the military judge denied the motion. We granted review to determine “[w]hether the lower court erred in finding the military judge did not abuse his discretion in denying a joint motion to recuse.” United States v. Uribe, 80 M.J. 269 (C.A.A.F. 2020) (order granting review). We hold that the military judge abused his discretion but that Appellant is not entitled to relief under Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847 (1988).
This was a contested MJA Article 120 case.
The day before the defense filed a motion for recusal, Maj BJ requested an R.C.M. 802 conference due to his “friendship” with Judge R. Maj BJ cited both parties’ “concern about the perception of fairness of the proceedings, not only from the [Appellant’s] perspective … but also from an outsider[’s] as well.” During this conference, Maj BJ expressed “his concern [with] the ‘optics’ of [Judge R] presiding over a case where [Maj BJ] appeared as counsel.” Maj BJ also expressed “sympathy for [Appellant’s] perspective in general.” The next day the defense interviewed Maj BJ about his relationship with Judge Rosenow.
Note here that the trial counsel had concerns and expressed them--BZ.
Cheers, Phil Cave.
Today, CAAF will hear oral arguments in United States v. Tyler, and will consider the issue that it granted last fall: “Whether the military judge erred when he permitted trial counsel to argue facts not in evidence; namely, the unsworn victim impact statements which were not admitted as evidence under RCM 1001(b)(4).”
CAAF briefs here.
Tyler will be the latest addition, after United States v. Hamilton, 78 M.J. 335, 342 (C.A.A.F. 2019) and United States v. Barker, 77 M.J. 377 (C.A.A.F. 2018), to a line of recent cases grappling with unsworn victim impact statements presented under Article 6b and R.C.M. 1000A. In Tyler, CAAF will address the unsworn statements’ relationship to aggravating evidence introduced pursuant to R.C.M. 1001(b)(4).
Today, CAAF will hear oral arguments in United States v. Ozbirn. The granted question is:
WHETHER THE EVIDENCE THAT APPELLANT ASKED FOR “NAKED PICTURES” FROM ADULTS PRETENDING TO BE MINORS IS LEGALLY SUFFICIENT TO SUSTAIN A CONVICTION FOR ATTEMPTED RECEIPT OF CHILD PORNOGRAPHY.
CAAF Briefs here.
"CAAF is a tribunal constituted by Congress as an executive branch entity. It is not an Article III court. Although its constitutional foundation as a judicial body is firmly established, CAAF does not have the judicial Power to rule that laws are unconstitutional. It is emphatically the province and duty of the judicial branch to say what the law is."
NMCCA issued a published decision in A.J.W. v. United States, et. al., __ 80 M.J. ___ (N-M. Ct. Crim. App. 2021).
The CAAF Daily Journal for 2 February shows a "Notice is given that a writ-appeal petition for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals on application for extraordinary relief was filed under Rule 27(b) on this date.
The NMCCA concluded they had jurisdiction. Did they after trial is complete?
The decision seems to imply the case was still in the post-trial process somewhere up to the point the record is forwarded for review by the CA. But what if the case was in the mail to the CCA?
The NMCCA concluded the petitioner failed to satisfy the second prong for a writ.
Don Rehkopf commented on this case here. Don concludes,
The appellate case law is muddled at best, core constitutional principles such as confrontation and due process minimalized or ignored, and an apparent lack of critical cerebration by defense counsel have created a hydra-headed legal monster. And yes, Congress has put its proverbial thumbs on the scales of justice–something that calls for action, not inaction–something that will not happen by its own inertia.
I'd characterize the issue of victim impact testimony or statements as something from the wild west--as we see from time to time with any number of legal issues. Let us see what the Sherriff' (CAAF) has to say. For example, the recent decision of ACCA in United States v. Holland and others percolating up.
Cheers, Phil Cave.
Scholarship Saturday - Congress has diluted the law against unlawful command influence and exposed the military justice system to constitutional attack
Scholarship Saturday will, from time to time, offer law students the opportunity to publish comments on military law. This week we feature the work of Jackson Rubinowitz, a J.D. candidate at Columbia Law. Mr. Rubinowitz is commenting on an article soon to be published in the Hofstra Law Review by Southwestern Law School Professor (and retired Air Force judge advocate) Rachel VanLandingham: Ordering Injustice: Congress, Command Corruption of Courts-Martial, and the Constitution, 49 Hofstra L. Rev. 211 (2021).
Mr. Rubinowitz' work begins after the "read more" break.
- Isaac Kennen, Scholarship Editor
United States v. Harris, is the review of a petition for a new trial—which is denied.
United States v. Apostol. A relief for post-trial delay case.
United States v. Greene. Appellant argued sentence severity and the court also itself raised “facially unreasonable delay” all of which found the findings and sentence being affirmed.
Gill v. United States
On Friday, January 29, a Federal District Judge in Massachusetts issued an opinion in the civil action filed by civilian lawyer Steven Gill against the United States government for the actions of a military commission which seized, detained, and imprisoned Gill in order to compel his testimony before the commission. The Court ruled that Gill filed valid claims for unlawful trespass for searching Gill’s home and intentional infliction of emotion distress for using excessive force.
"Given reports that DoD is making COVID vaccinations voluntary for active duty personnel, I'd be interested in a discussion by CAAFlog experts about the state of the law re: mandating vaccinations.
In my view they can be mandated based on Washington (https://www.armfor.uscourts.gov/newcaaf/opinions/2002Term/01-0658.pdf) and - really probably more important - the Supreme Court's opinion in Jacobson (https://supreme.justia.com/cases/federal/us/197/11/).
However, I'd be grateful to know what CAAFloggers think!
Editor's note: I agree with Prof. Dunlap that Jacobson controls. If vaccines can be mandatory for civilians, they can certainly be mandatory for military personnel! The *only* possible way around, I think, would be an invocation of RFRA--somehow tying in your refusal to take a vaccine with a religious belief. Here is a nice student note on RFRA's application to vaccines.
CAAF is "wholly unpersuaded" by Appellant's arguments, judgment affirmed.
Elizabeth M. Berecin
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