United States v. Binegar. Case remanded to resolve post-trial processing errors. With the number of these issues arising, is it arguable that the Appellant should get confinement credit or the delay in resolving his appeal? Sending all these post-trial error cases back is legally correct, but the client suffers delay. As a second shoe—an exemplary matter—should the courts be giving sentence credit pour encourager les autres?
In United States v. Edwards appellant raised three AOEs and 14 Grosty’s. Findings and sentence affirmed with a 41-page opinion. Issues of note discussed,
We find that a victim may present a verbal unsworn statement under R.C.M. 1001A through the medium of a video. Central to this conclusion is that no provision of R.C.M. 1001A expressly disallows a victim to submit a video at a sentencing hearing. Also, the video itself as a mode of presentation is neither unreasonable under R.C.M. 1001A(a), nor is it obviously outside the scope of a “statement” as that term is used in R.C.M. 1001A.
United States v. Justice is an interesting writ petition arguing for a new Article 32, UCMJ, preliminary hearing. At the hearing,
Defense counsel made numerous objections before, during, and after the hearing. Inter alia, the Defense objected on the grounds that the PHO did not outrank Lt Col NM; that the PHO was not impartial; that the “unsafe” hearing should be delayed; and that an AFOSI agent testified while wearing a mask over his nose and mouth.
After referral the defense moved for a new preliminary hearing which the military judge denied because the hearing was “in substantial compliance” with the law. “With regard to the witnesses wearing masks, the military judge noted an accused’s right to confront witnesses face-to-face is not absolute.” And this would be particularly true at a preliminary hearing?
The petition was denied. CAAF on a writ appeal petition?
United States v. Monge. Appellant entered mixed pleas of which the MJ accepted the GPs and members found him guilty of various sex offenses. On appeal Appellant raised legal and factual sufficiency to the members findings of guilt. Rather than address the issues now, the court returned the case to the convening authority for corrective action resolving post-trial errors.
United States v. Tellor. In this mixed plea case appellant raised nine issues.
Appellant raises nine issues on appeal: (1) whether the military judge abused his discretion by erroneously excluding impeachment evidence; (2) whether the military judge abused his discretion by allowing hearsay testimony; (3) whether the military judge abused his discretion when he allowed the victim to exceed the permissible scope of her unsworn statement; (4) whether trial counsel’s sentencing argument was improper; (5) whether there is a question as to whether outside influence was improperly brought to bear on any court member; (6) whether Appellant’s commander’s disparaging posttrial comments unlawfully increased Appellant’s punishment; (7) whether cumulative error requires a rehearing on the sentence; (8) whether Appellant’s sentence is inappropriately severe; and (9) whether Appellant is entitled to relief for the conditions of his post-trial confinement.
Rather than decide the issues the court remanded to case to the convening authority “to resolve a substantial issue with the convening authority’s decision memorandum as the action taken on Appellant’s adjudged sentence was ambiguous and incomplete.”
In United States v. Ayala, published this week, the CAAF ducked the question presented about the admissibility of pretrial statements as prior consistent statements under Mil. R. Evid. 801. Should they have?
In cases addressing nonconstitutional evidentiary errors, the court asks whether the judge made a legal error in admitting or excluding evidence under an abuse of discretion standard of review. United States v. Humphreys, 57 M.J. 83, 90 (C.A.A.F. 2002). This meta-analysis comes in two parts: was there error, and is there prejudice?
First, did the military judge err. To err means the military judge “abused his discretion.” A military judge may abuse his discretion in one of three ways: (1) the findings of fact are clearly erroneous (the Court has described a test for this: findings of fact are “clearly erroneous” when the reviewing court “is left with the definite and firm conviction that a mistake has been committed” (United States v. Martin, 56 M.J. 97, 106 (C.A.A.F. 2001)); or (2) the military judge had an erroneous view of the law, or (3) the military judges' decision was outside the range of choices reasonably arising from the pertinent facts and the law. United States v. Kelly, 72 M.J. 237, 242 (C.A.A.F. 2013). Admittedly (no pun intended), there are many algebraic variables here that need to be replaced by facts, and thus some traditional legal analysis is required. But that is not the end of the problem.
The NMCCA set aside Appellant’s conviction for violating a lawful general order by wrongfully possessing drug abuse paraphernalia and ordered that the supplemental court-martial order [CMO] accurately reflects that Appellant was acquitted of wrongful manufacture of marijuana with intent to distribute. The Court affirmed the remaining findings and, upon reassessment, affirmed the sentence.
McCall Opinion here.
Appellant was convicted, contrary to his pleas, of conspiracy to possess, introduce, and distribute marijuana; absence without leave; violation of a lawful general order by wrongfully possessing drug abuse paraphernalia; wrongful introduction of marijuana with intent to distribute; and wrongful use of marijuana; in violation of Articles 81, 86, 92, and 112a, UCMJ.
Friends of CAAFlog inform us that a sketch artist was present for the oral argument in Begani. If the person with the rights to the finished product would like to share that with the world, please hit "Contact" above.
Michel's post below predicts a "rare military/civilian circuit split." We often hear people talk this way, but the Begani case illustrates the limits of that analogy. "Split" normally implies co-equal courts, neither of which can bind each other with legal holdings (e.g., the 9th Circuit does not determine law in the 8th), and neither of which can review the other's decision (e.g., a loser in the 8th cannot appeal to the 9th). With respect to CAAF, the former is true but not the latter. CAAF is certainly not bound by Judge Leon's holding regarding Article I, but Judge Leon has the power to vacate the same court-martial conviction that CAAF previously affirmed. The reason for this is of course habeas corpus review of courts-martial convictions (for prisoners) or federal question review (for non-prisoners). 586 F.3d 28. Thus, even if the "split" occurs and even if the Supreme Court refuses to intervene, convicted Fleet Reservists can eventually vindicate their Article I claim in federal court (assuming Leon's ruling is upheld).
Watch CAAFlog editor Michel Paradis debate the above question tomorrow! Link here.
A new article recently submitted on SSRN:
WHO IS PREFERRED TO REFER? THE PROPOSED TRANSFER OF PROSECUTORIAL DISCRETION IN THE MILITARY - Megan Greer
"Many argue that military commanders are unfit to have the power of prosecutorial discretion because of their lack of a formal legal education and propensity to abuse discretion when allegations of misconduct involve those in leadership. Meanwhile, others argue that commanders
are the only ones fit to hold this power. The current military justice system follows along the latter train of thought, as commanders are the individuals responsible for those within their units and are tasked with the goal of maintaining good order and discipline throughout the military. Consequently, the transfer of prosecutorial discretion to high-ranking military lawyers would undermine commanders’ ability to carry out their duties and would negate the purpose of the commander’s role as codified in the Uniform Code of Military Justice and Manual for Courts- Martial. Because of this, Congress should reject the proposals contained in both the 2020 Military Justice Improvement Act and § 540F of the 2020 National Defense Authorization Act and should instead enact a new provision to the Uniform Code of Military Justice that re-emphasizes commanders’ leadership roles and responsibilities."
Last summer we posted their white paper describing sexual assault data comparisons between the military and civilian worlds. A substantially revised version is now available below:
NATIONAL, MILITARY, AND COLLEGE REPORTS ON PROSECUTION OF SEXUAL ASSAULTS AND VICTIMS’ RIGHTS: IS THE MILITARY ACTUALLY SAFER THAN CIVILIAN SOCIETY? -- David A. Schlueter and Lisa M. Schenck
CAAF heard arguments in United States v. Begani this morning, a case challenging the extension of court-martial jurisdiction over retired active duty personnel. The argument ran nearly an hour with University of Texas School of Law Professor Steve Vladeck arguing that Congress exceeded its authority under the Make Rules Clause when it made active duty retirees subject to court-martial jurisdiction under the UCMJ. Vladeck was matched by MAJ Clayton L. Wiggins, USMC, who deftly argued the case for the government, arguing that the longstanding extension of court-martial jurisdiction over retirees passed constitutional muster.
As CAAFLog readers might remember, Vladeck prevailed on this claim this past November in Larabee v. Braithwaite, a habeas corpus action brought in the D.C. District Court. In striking down UCMJ jurisdiction over retirees, Judge Leon held:
Congress has not shown on the current record why the exercise of [court-martial] jurisdiction over all military retirees is necessary to good order and discipline. Indeed, the Government points to no clear statements by members of Congress upon passing the Uniform Code of Military Justice that explain the necessity of subjecting all military retirees to court-martial jurisdiction. Because the Supreme Court has consistently emphasized that court-martial jurisdiction should be narrowly circumscribed ... I must conclude that in the absence of a principled basis promoting good order and discipline, Congress's present exercise of court-martial jurisdiction over all members of the Fleet Marine Corps Reserve is unconstitutional.
Suffice it to say that at argument this morning, some of the judges on CAAF took umbrage at Judge Leon's willingness to split with military law precedents that had until recently been reasonably settled inside the court-martial system.
While CAAF appears poised to split with Judge Leon, creating a rare military/civilian circuit split, the judges struggled to identify a clear standard for determining the outer constitutional limits on who Congress may include within the "Land and Naval forces" for the purposes of court-martial jurisdiction. Vladeck argued that a functional approach was necessary, one that weighed the extent of an individual's contribution to good order and discipline. Wiggins, for his part, argued for a more formal test, one that gave Congress considerable deference in determining who should be treated as a member of the armed forces.
ACCA released its unanimous opinion in United States v. Sanchez, siding with the government and affirming the conviction and sentence.
Sanchez opinion here.
In Sanchez, ACCA clarified that under RCM 907 (as revised in 2016), an unconditional guilty plea waives a later claim that the pleaded-to specification fails to state an offense.
Judge Maggs filed a concurrence in the Bergdahl case last summer that dealt with one of the biggest legal issues in the case: whether or not the UCI regulation covered the President (of the US). 80 M.J. at 248. The regulation at issue, RCM 104(a)(1) states, “No convening authority or commander may [commit UCI],” and Article 22 of the Code states that “General courts-martial may be convened by…the President of the United States.” Putting these two together, one might think that the statutory authorization of the President to convene courts-martial qualifies him/her for the restrictions of the regulations. The President is a convening authority, and no convening authority may commit UCI. QED, right? Well, perhaps not if one were applying a method of interpretation that looked beyond the plain meaning of the text. Some methods hold that the intent of the writers, or their purpose, are also relevant. But Judge Maggs resisted the conclusion that the President is covered by the command regulation not from the standpoint of intentionalism or purposivism—he argued that even a textualist would come to this conclusion. How can that be?
Judge Maggs cites to Reading Law by Scalia & Garner, noting that even committed textualists such as those authors agree that “the hyperliteral meaning of each word” need not be given effect. This may seem odd to the lay reader. Isn’t the “plain meaning” of the text the same as the “literal” meaning? How much work is “hyper” doing here? The full passage from Reading Law, not quoted by Judge Maggs, reveals that they were not thinking of some general license to ignore plain meaning. Instead, they were thinking of three narrow exceptions:
“The full body of a text contains implications that can alter the literal meaning of individual words. To give but three examples: (1) the rule of ejusdem generis, which narrows the literal meaning of a tagalong general term (see § 32 [ejusdem generis canon]); (2) the rule that a provision whose literal meaning is evidently absurd can be taken to be an error if the rest of the text shows that only another meaning makes sense (see § 37 [absurdity doctrine]); and (3) the principle that an act not literally authorized is authorized as a necessary predicate of an authorized act (see § 30 [predicate-act canon]).” Reading Law at 356.
Judge Maggs cites to this page in arguing that textualists would impose an “implicit qualifier” on the regulation—that the convening authority committing the UCI must be the convening authority convening that specific case. 80 M.J. at 252. Surely we are not dealing with an ejusdem generis situation here, nor does this look like a necessary predicate-act issue. What’s left, then, must be the absurdity doctrine. Judge Maggs alludes to this, but does not use the a-word:
“If ‘no convening authority’ implicitly means no person empowered to act as a convening authority, and is not implicitly limited to the convening authority in the specific case at issue, then R.C.M. 104(a)(1) would have an astonishingly broad scope. For instance, it would cover not just the President of the United States, but also every junior officer in any service stationed anywhere in the world who is designated as a summary court-martial convening authority.”
But if we bring the a-word back into the picture, the conclusion seems less obvious. Would it be absurd for the rule to have the effects Judge Maggs describes, or would it just be a very broad rule? Scalia and Garner describe an “absurd” interpretation as one that “no reasonable person could approve.” Reading law at 234. Chief Justice Marshall wrote that the exception applied when “the absurdity and injustice of applying the provision to the case, would be so monstrous, that all mankind would, without hesitation, unite in rejecting the application.” Sturges v. Crowninshield, 17 U.S. 122, 202–03 (1819). Could no reasonable person approve of a rule that prohibited all convening authorities from committing UCI? Scalia and Garner warn that the use of the absurdity canon threatens a "slippery slope," as "It can lead to judicial revision of public and private texts to make them (in the judges' view) more reasonable." Reading Law at 237. I believe that this is what happened here.
Scholarship Saturday: Blessed be the tie that binds – resubordinating the military to civil authority
It is common to say, as the Congressional Research Service said just last year, that the American military “is ultimately subordinate to civilian authority.” It would be more accurate to say that the American military is, and must continually be, against its will, actively subordinated to civilian authority. Frederick Douglass famously said, “power concedes nothing without a demand.”
The subordination of something so powerful as the American military endures only so long as our civilian authorities continue to insist upon it. Our Founders recognized this and insisted that constant and concerted action is required if civil authorities are to keep the military at heel, or else the “constant apprehension of War, has the . . . tendency to render the head too large for the body.” (James Madison, 1787). As Samuel Adams explained, “a wise and prudent people will always have a watchful and jealous eye” over their military.
Maintaining civilian supremacy over a force that is custom-built to overrun the will of both militaries and civil governments is no easy task. To maintain liberty, any civilian government must be constantly on the lookout for signs of insubordination in its military apparatus. When insubordination is observed, as it inevitably will be, the civil government must act quickly and decisively to reassert supremacy. But, it is sometimes true that insubordination can be difficult to discern. For example, back in June 2020, when the Secretary of Defense said governors should “dominate the battlespace” and suppress rioting American civilians, he was probably just bleeding military jargon into common discourse at a time of great friction. Under those circumstances, a watchful and jealous eye might be forgiven for not immediately acting to bring the “dogs of war” to heel, even if the Secretary’s statement was enough to concern a former Chairman of the Joint Chiefs of Staff.
Likewise, a civil authority on the watch for insubordination in the military might have seen cause for concern by the use of National Guard helicopters to execute a show of force against rioters in June 2020, or the use of tear gas and rubber bullets against protestors to allow for a Presidential photo-op that same month. That latter activity was, after all, something the Chairman of the Joint Chiefs of Staff has apologized for. But, as this Congressional Research Service report shows, volumes could be devoted to divining and parsing the ever so fine lines between lawful support to civil authorities during periods of unrest and violating the posse comitatus act. So, it is perhaps understandable that those occurrences did not inspire a firm hand. But, the same cannot be said for the Capitol Insurrection. Civil authorities should be equally angry and frightened to learn that military-affiliated personnel were so disproportionately represented in the force that attacked the Capitol on January 6, 2021.
No. 21-0111/AR. U.S. v. Jesse M. Thompson. CCA 20180519. 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 APPELLANT IS ENTITLED TO RELIEF UNDER R.C.M. 914.
This is the military incorporation of the Jenck's Act. Keep in mind counsel are encouraged to produce such statements prior to trial.
United States v. Tate. In response to a government request for reconsideration of its initial opinion, the court reverses itself.
“Appellee requests this court reconsider our decision finding the convening authority improperly approved appellant's sentence without a substantially verbatim transcript, in violation of Rule for Courts-Martial [R.C.M.] 1103(f).
United States v. Sartori. Appellant alleged IAC for failing to raise an unreasonable multiplication of charges motion and inadequate voir dire of a member. The member had read an Army Times article about the case and had discussed it with his wife. A challenge to the member was denied. The court found “no "reasonable probability [existed] that [an UMC motion) would have
United States v. MacWhinnie. Appellant argued that it was an abuse of discretion to admit non-child pornography to show the litany of reasons in Mil. R. Evid. 404(b) and that the conviction of viewing is factually insufficient. Finding no error the court approved the findings and sentence.
Appellant's post-trial documents are replete with errors. In this opinion, we correct these errors. However, in doing so, we wonder why this court should have to step into the shoes of the numerous parties at the trial level whose responsibility it is to ensure these legal documents, documents of consequence, are properly drafted, reviewed, and executed. Surely this court is not the first line of defense. So we must ask, how did this happen?
So begins Sr. J. Aldykiewicz's opinion for the court in United States v. Pennington.
There, however, being no prejudice to appellant, the court affirmed the corrected findings and the sentence.
The issue of sexual assault is of course top of mind in discussions of military justice reform. Many know that a "90-day Commission" to study the issue was formed, and that its leader was just recently announced: Lynn Rosenthal, "formerly the first-ever White House advisor on violence against women."
Is the singular focus on female victims in the reform conversation producing a blind spot? Consider the following passage from Military Times last year:
"While the vast majority of sexual assault reports filed each year involve a male perpetrator and a female victim, Pentagon research has estimated that while 43 percent of women report their assaults, only 17 percent of men do.
Some estimates have placed the number of male survivors of military sexual assault are higher than that among women, partly a reflection of the fact there are simply more men in the military.
“A lot of people talk about how many female [service members] get assaulted, but more male [service members] on this base get assaulted on a daily basis than female [service members] do. It’s one-a-day for male [service members] because of the grunt barracks," a female junior enlisted Marine said. "Men are [explicit] each other and they’re raping each other and that’s so [explicit] up and nobody wants to talk about that. And they feel underrepresented because in the Step Up training, all there is is this female [service member’s] getting assaulted at a party and no male [Service members] are being talked about at all.”"
Recommended reading: Bennett Capers, Real Rape Too:
"As a society, we have been largely indifferent to the prevalence of male rape victimization. In the prison context, we dismiss it as par for the course, as "just deserts," or worse yet, as a rarely stated but widely known component of deterrence. We treat prisons as invisible zones, as zones without law, as zones that need not concern us. Outside the prison context, our response is no better. We tell ourselves male rape victimization is a rarity, or perhaps something that only happens to gay men. In short, we render male victim rape invisible, or at least un-articulable. This Article renders male victim rape visible..."
"Order Granting Petition for Review
No. 21-0111/AR. U.S. v. Jesse M. Thompson. CCA 20180519. 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 APPELLANT IS ENTITLED TO RELIEF UNDER R.C.M. 914.
Briefs will be filed under Rule 25."
CONGRATULATIONS to the following members of our staff that have been selected for active duty service:
Farris Francis, Research Fellow: Army JAG
Again, congratulations to our staff on their selections! We are confident that each will be a great addition to their respective branches.
Elizabeth M. Berecin
Probably serendipity, but the question has come up about a citizenship requirement for a CAAF judge.
The court is located within the Executive Branch of government as an Article I, U. S. Constitution court (despite early proposals for it to be an Article III court with the judges appointed accordingly.) The Congress creates the court and prescribes its jurisdiction and scope of authority under the make rules (for the government and regulation of the land and naval forces) clause of Article I, sec. 8., U. S. CONST.
The Senate gives its advice and consent on the appointment of the court’s judges because they are “officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law.” Article II, sec. 2. U. S. CONST. Nothing in these constitutional provisions requires that a judge of the CAAF be a citizen. The Constitution only requires that the President must be a “natural born citizen.” Citizens of the U. S. at the time of the Constitution’s adoption are age barred.
The CAAF judges do have to take the standard oath to support and defend the Constitution. I’m not sure this is or should be a bar to a non-citizen being appointed because they are not required to swear an oath of allegiance to the United States; a requirement of citizenship. One colleague observes that Article VI, cl. 2. U. S. CONST. requires the oath of support of the Constitution from executive branch appointees. He then observes that while the Constitution mentions the term "citizen" many times, a requirement of citizenship is not thereby imposed on the person taking the oath.
So now to the statutory qualifications of executive branch officeholders. The CRS has a useful monograph on the subject. Henry B. Hogue, Statutory Qualifications for Executive Branch Positions. Congressional Research Service, 9 September 2015.
In practice, it has not been unusual for Congress to mandate that appointees to certain positions meet specified requirements. Some statutory qualification provisions, like those for the FEMA Administrator, require that appointees have certain experience, skills, or educational backgrounds that are associated with competence. Other qualification provisions address a variety of characteristics, such as citizenship status, residency, or, for the purpose of maintaining political balance on regulatory boards, political party affiliation. Congress has used such statutory provisions selectively; most executive branch positions do not have them.
Article 142, UCMJ, 10 U.S.C. § 942, does not expressly require citizenship for the court's appointment. Congress has added two qualifications that may be affected by the citizenship question: the requirement to be properly admitted to practice law and the restriction on regular component retirees.
It has limited the power of nomination by providing that the office may be held only by a resident of the United States; of a State; of a particular State; of a particular district; of a particular territory; of the District of Columbia; of a particular foreign country.
Myers v. United States, 272 U.S. 52, 1926 U.S. LEXIS 35 (1926) (Brandeis, J., dissenting) (emphasis added).
Hogue, at Appendix A-1, lists various offices and their qualifications—some require citizenship and others are silent like Article 142, UCMJ. Essentially, expresio unius est exclusion alterius at work in that the Framers knew and the Congress knows when and how it wants to insert a citizenship requirement.
I continue to think then that citizenship is not required of all appointed to the U. S. Court of Appeals for the Armed Forces. Note the qualification. A retired officer of the Reserve component may be appointed as can a retired officer of the Regular component who has been retired for more than seven years at the time of the appointment. Article 142(b)(4), UCMJ, 10 U.S.C. 942(b)(4). Judge Darden, one of the first judges was a retiree as was Judge Wiss (a Reserve component officer). But, what do you have to be to hold a commission in the United States armed forces?
A citizen (natural born or through naturalization)!
There is yet one more step in the inquiry about lawfully imposed citizenship requirement to be appointed to CAAF.
A CAAF judge must be admitted to a "federal court or the highest court in a state" as a prerequisite for appointment. Article 142(b)(3), UCMJ, 10 U.S.C. § 942(b)(3). Each state has its own requirements for admission to the bar and to practice. In the Commonwealth of Virginia, to be admitted, you must be a citizen or non-citizen lawfully admitted with the right to work in the United States. (No, I do not know the effect of DACA and I have not done the research to know if other states have a citizenship requirement--anyone know?)
More practically, how does the Administration deal with the citizenship question if at all? A question to which I do not know the answer. I have no idea whether any inquiry is made during the nomination process about citizenship. It is possible the DoD Office of the General Counsel makes a point of that and asks or perhaps citizenship is assumed and so no questions are asked. I can say that when DoD solicits recommendations for a CAAF appointment no mention is made of a citizenship requirement.
Appellant, a resident alien, was denied permission to take the Connecticut bar examination solely because of a citizenship requirement imposed by a state court rule, which the state courts upheld against applicant's constitutional challenge.
In re Griffiths, 413 U.S. 717 (1973).
In the realm of the truly esoteric for a CAAF judicial appointment, it was brought to my attention a California case of note.
In In re Sergio C. Garcia, 58 Cal.4th 440, 315 P.3d 117 (Cal. 2014), the Supreme Court of California had before it whether an "undocumented immigrant" could apply for and be admitted to the bar. The court found that,
"For all of the foregoing reasons, we conclude there is no state law or state public policy that would justify precluding undocumented immigrants, as a class, from obtaining a law license in California."
A job announcement on the website of the U.S. Court of Appeals for the Armed Forces seeks applicants for a two-year (renewable) at-will appointment as a staff attorney on the Central Legal Staff. According to the announcement:
The principal tasks of the staff attorney include:
he part of particular interest is the italicized language in the first bullet. Here is what Art. 67(a)(3), UCMJ says:
The Court of Appeals for the Armed Forces shall review the record in--
"We are all textualists now," Justice Elena Kagan has famously said. As you read the text of the statute, does it contemplate that the court will conduct its own de novo review of the record of trial before it has granted review? Doesn't the past tense of the terminal "has granted a review" clause indicate that the duty to "review the record" arises only after good cause has been shown and the petition has been granted? Is the court putting the review-the-record cart before the grant-of-review-for-good-cause horse?
My personal comments would be that if done correctly,
Cross-posted with permission from Gene Fidell at Global Military Justice Reform blog. Cheers, P.C.
Sex crimes, a heavy topic for many, but a topic that is nevertheless pervasive in a military justice caseload. From periods of under prosecution to overzealous prosecution, the pendulum never stops swinging, rarely balanced. With the confirmation of SecDef Austin, and President Biden's ordering of a 90-day commission to address sexual assault and harassment, it appears the pendulum is swinging towards Pentagon leadership pushing for over-prosecution.
After his confirmation in January, one of SecDef's first actions was ordering the review of the military's sexual assault and harassment prevention programs. Two weeks ago at a Pentagon press briefing, SecDef reiterated his commitment to preventing sexual assault, even going so far as to admit that they " haven't gotten it right." And just last week at a press conference, Pentagon Press Secretary Kirby stated that the 90-day commission will begin soon and that SecDef will not wait until the end of the 90 days to implement changes.
Explicitly, policy changes are coming on how the military addresses sexual assault and harassment. Implicitly, a rise in the prosecution of sexual assault and harassment cases. Only time will tell but after the removal of Fort Hood leadership following the death of PFC Vanessa Guillen, and the public outcry for accountability, I wouldn't be surprised.
Elizabeth M. Berecin
On 10 February 2021, the United States Navy-Marine Court of Criminal Appeals (“NMCCA”) published an opinion in United States v. Corporal Thomas A. Page III. The NMCCA reviewed Appellant’s two assignments of error de novo. The NMCCA SET ASIDE and DISMISSED WITH PREJUDICE the finding of guilty pursuant to Article 117a and, with careful consideration of the law and facts, AFFIRMED the remaining findings and sentence in Entry of Judgment pursuant to UCMJ Arts. 59, 66.
"What makes for a good judge? Sheer smarts? Academic qualifications? Temperament? Empathy? Ability to get along with others? Writing skills? Personally, my hope is that the Department of Defense, the White House, and those on Capitol Hill who have roles to play in the process will take their time and cast their net broadly. People who are interested in serving on the U.S. Court of Appeals for the Armed Forces should thoughtfully consider their qualifications and credentials, consult with others, and if they are willing to run the risk of being disappointed, allow their names to be put forward."
Read the full Just Security article.
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