This is an update to an earlier post about a pending prosecution of a Canadian Reservist engaged, while in uniform, of some sort of political activity.
Rory Fowler, of Canada, friend and colleague, has this to report about a pending court-martial for what he terms "A slightly more surreal matter involves the charge of 'endeavouring to persuade another person to join a mutiny', (as well as 'scandalous conduct by an officer', against an OCdt of the CIC dating back to December 2020. This is noteworthy both due to the rarity that such a charge would be laid and the circumstances of the alleged misconduct."
(Some editing done and citations omitted.) A fuller explanation is here.
Today is the 70th Anniversary of the going into effect of the Uniform Code of Military Justice.
As we wrote last week, Wednesday was Chief Judge Stucky's final oral argument as chief judge, and as an active judge of the court. The Chief has been known to sit in the hottest seat of an already hot bench. What are your favorite Stucky Moments at oral argument? Mine is not a moment, but a repeat question:
"Which way does that cut?"
*fingers move back and forth like a metronome*
If time begins for us in 1950, this was said,
Although many questions in this area have now come to be settled, there has been much controversy throughout our history as to which provisions of the Constitution relate to the military and which are concerned only with civilian trials.
Ernest L. Langley, Military Justice and the Constitution--Improvements Offered by the New Uniform Code of Military Justice? MIL. L. REV. (Bicentennial Issue) Sept. 1975 at 77.
“[T]here has been substantial scholarly debate on applicability of the Bill of Rights to the American servicemember.” United States v. Graf, 35 M.J. 450, 460 (C.M.A. 1992), cert. denied, 510 U.S. 1085 (1994); see, e.g., Gordon D. Henderson, Courts-Martial and the Constitution: The Original Understanding, 71 Harv. L. Rev. 293 (1957); Frederick B. Wiener, Courts-Martial and the Constitution: The Original Practice pts. 1 & 2, 72 Harv. L. Rev. 1, 266 (1958). The Bill of Rights itself includes one exception for military justice cases: the Fifth Amendment’s grand jury provision does not apply to “cases arising in the land or naval forces, or in the Militia, when in actual service, in time of War, or public danger.” The Supreme Court has held that the Sixth Amendment’s right to trial by jury is similarly inapplicable to courts-martial. The Supreme Court has recognized the applicability of some other portions of the Bill of Rights to the military justice system, though that application is often different than that in a civilian context. It has reserved judgment on the applicability of some other Bill of Rights provisions.
Dwight H. Sullivan, The Bill of Rights' Application in the Military Justice System. The paper was originally written for presentation at the Joint Proceedings Panel.
Recently there has been an eruption of blog posts from opponents of the military justice reforms championed by Sen. Kirsten Gillibrand, Rep. Jackie Speier, and other federal legislators. Many of these are simply rehashes of things the same or other authors have argued in the past. As the Administration and Congress move from the still-unpublished recommendation of the Independent Review Commission appointed by Defense Secretary Lloyd Austin to taking a definitive stand on the pending proposals, a few basic points need to be kept in focus:
First, the numbers of sexual assault in the armed forces have essentially not budged despite past legislative initiatives and assurances from the service chiefs.
Second, the acquittal rate in sex-offense courts-martial is sky-high. Sending unwinnable cases to trial is unfair to everyone and detracts from public confidence in the administration of justice.
Third, one ally after another has removed from commanders the power to decide who shall be prosecuted for serious crimes. They have not done so to drive down the number of sex offenses; rather, they did it out of regard for the need for independent and impartial decision making in the administration of justice in the armed forces. And, a number of these changes arose before the prevalence of sexual assaults became a public issue. Commanders are neither independent nor impartial.
Fourth, 21st century Americans in and out of uniform recognize that prosecution decisions for serious and oftentimes complex criminal matters (as opposed to minor disciplinary offenses) are best made by persons with legal training.
As we observe Memorial Day, all Americans should be grateful to our military personnel. It is not enough to mouth the words "Thank you for your service." We should show our appreciation by ensuring that they will have the benefit of a state-of-the-art legal system that reflects contemporary values and in which they and we all can have confidence.
Fair seas and following winds to all. Brenner Fissell and Phil Cave.
Colorado Supreme Court
Colorado v. Johnson, No. 2021 CO 35, 396 P.3d ____ (2021), suggests an accused must make a Hobson's choice in some situations when he wants to testify, yet there is successfully suppressed evidence. There is the potential for impeachment with the suppressed evidence if the accused testifies. When advising an accused about testifying it is common to identify the value added beyond what is already in evidence and then balance that with any devaluation that might be caused through cross-examination or contradiction. Where there is suppressed evidence the defense becomes the gate-keeper.
So what about the situation where the core part of the defense may lead to trial counsel wanting to impeach or contradict with prior suppressed evidence?
Mil. R. Evid. 304(e)(1) and 311(c)(1) give a partial answer—but does the decision require a more sophisticated analysis? And what should a military judge do when she gets a defense motion-in-limine asking for a ruling about use of suppressed evidence on cross-examination (kick the can down the road) or when the case blows up? Danger, Will Robinson should you decide to testify!
Walder v. United States, 347 U.S. 62 (1954) and James v. Illinois, 493 U.S. 307 (1990), may help further to frame the issue for discussion which brings us Colorado v. Johnson, and the court's discussion of evidence rules and U.S. Supreme Court precedent. In summary,
In this opinion, the supreme court reviews a decision of a divided panel of the court of appeals holding that the trial court reversibly erred by forcing the defendant to choose between excluding unconstitutionally seized evidence and fully pursuing an alternate suspect theory at trial, thereby violating the defendant's right to present a complete defense. The supreme court holds that the impeachment exception to the exclusionary rule does not extend to a defendant's truthful, yet incomplete, presentation of evidence: A defendant may offer such evidence, under the particular circumstances here, without opening the door to previously suppressed evidence.
The court then
[C]oncludes that a defendant may offer truthful, albeit potentially incomplete, evidence without opening the door to previously suppressed evidence. This is because the important truth-seeking rationale that prohibits a defendant from turning the exclusion of illegally obtained evidence into a shield for perjury does not apply with equal force to truthful but potentially misleading testimony. Accordingly, we affirm the judgment of the court of appeals.
The dissent argues that, by its decision, the court creates a situation where an accused can exploit the exclusionary rule in an affirmatively misleading manner.
First, from Brian Cox: Measuring the Effectiveness of the Proposal to Divest Military Commanders of Disposition Authority for Sexual Assault Cases: A Comparative Quantitative Analysis
"This essay conducts a comparative quantitative analysis of four jurisdictions – Australia, the United Kingdom, Israel, and Canada – to determine whether vesting court-martial convening authority in lawyers rather than commanders has resulted in improved performance in selected criteria in relation to the issue of sexual assault in the military. The comparative quantitative analysis conducted in this essay indicates that there is no correlative relationship between the “reform” and the improved performance reformists hope to achieve, at least in the context of the jurisdictions examined. This lack of a demonstrated correlative relationship in other jurisdictions creates reason to doubt whether divesting commanders of the authority to convene courts-martial to adjudicate allegations of sexual assault would lead to improved performance related to sexual assault in the U.S. military."
Next, from Don Rehkopf over at Lawfire: CEREBRATING ABOUT MILITARY JUSTICE: Who Should Have the Authority to Convene Courts-Martial?
Many of the editors will be in court tomorrow for the final argument of the OT2020 term. Feel free to say hi, and to shake our hands--we're all vaccinated!
Tomorrow is the final day that Chief Judge Stucky will preside, after which he will pass the gavel to Judge Ohlson.
We may soon find out if that is the case in Canada.
A Canadian soldier is facing rare mutiny charges after allegedly urging fellow members of the armed forces not to help with the distribution of Covid-19 vaccines.
The Department of National Defence has announced charges against officer cadet LK, a reservist in Ontario. LK has been charged with “endeavoring to persuade another person to join in a mutiny” and “behaving in a scandalous manner unbecoming of an officer”, according to officials.
The charge of mutiny is rare in Canada and has not been used in decades.
Cross-posted with GMJR. Cheers, PC.
"Order Granting Petition for Review
No. 21-0219/AR. U.S. v. Conner B. Hiser. CCA 20190325. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:
WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION BY ACCEPTING APPELLANT'S GUILTY PLEA TO A VIOLATION OF ARTICLE 117a, UCMJ, WHEN APPELLANT POSTED INTIMATE VIDEOS OF A PERSON UNDER CIRCUMSTANCES WHERE THE PERSON WAS NOT READILY IDENTIFIABLE AND THERE WAS NO REASONABLE CONNECTION TO THE MILITARY ENVIRONMENT.
Briefs will be filed under Rule 25."
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Scholarship Saturday: Nonunanimous court-martial convictions are no longer constitutionally defensible
The military justice system’s failure to require a unanimous verdict has long exposed it to criticism. Indeed, as this column has highlighted, even the military institution itself has, from time to time, called the practice into question. Seventy-five years ago the War Department published a recommendation that in trials by court-martial, “a unanimous vote should be required for non-military offenses.” Report of the War Department Advisory Committee on Military Justice (December 13, 1946) at 123.
Despite decades of such dissent inside and outside of the military establishment, in 2016 Congress chose to continue allowing military service members to be sent to prison on non-unanimous convictions. Rather than abolishing the practice altogether, Section 5235 of Public Law 114-328 merely raised the quorum required to convict a service member from two-thirds of the panel to three-fourths. That change was a result of a December 2015 recommendation from the Department of Defense which the Department hoped would “enhance fairness” in its court-martial proceedings. Such an effort is certainly welcome. However, it is perhaps lamentable that, even when trying to “enhance fairness,” Congress and the Department of Defense still chose to fall 25% short of treating service members equally to the civilians they are sworn to defend.
Since the half-measures taken by the Department and Congress in 2016, the practice of allowing non-unanimous criminal convictions has only grown less defensible, especially after the Supreme Court’s decision this week in Edwards v. Vannoy, No. 19-5807 (May 17, 2021). Nonunanimous verdicts harm both society and individual accused, and those harms demand political, social, and legal remedies.
From the great Prof. Berman’s Sentencing Law & Policy.
The Court was notably unanimous in Caniglia v. Strom, No. 20–157 (S. Ct. May 17, 2021).bThe start and close of the short opinion for the Court by Justice Thomas serves as a useful summary:
Army Court of Criminal Appeals
"Order Granting Petition for Review
No. 21-0183/NA. U.S. v. Frantz Beauge. CCA 201900197. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:
DID THE LOWER COURT CREATE AN UNREASONABLY BROAD SCOPE OF THE PSYCHOTHERAPIST-PATIENT PRIVILEGE BY AFFIRMING THE MILITARY JUDGE'S DENIAL OF DISCOVERY, DENYING REMAND FOR IN CAMERA REVIEW, AND DENYING APPELLANT'S CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL?
Briefs will be filed under Rule 25."
In a The Hill piece entitled "Military commanders shouldn't have prosecution authority," we have another take on some of the arguments in favor of maintaining the status quo on disposition authority.
Schlueter and Schenck’s defense of the status quo boils down to their assertion that sexual assaults and rape are worse in civilian society, military members are more likely to be prosecuted than civilians and that commanders make reasonable decisions when determining who should be prosecuted.
Editor's note. Surely (yes, DMLHS, surely), the argument is not about whether the civilian or military justice system deal with the situation better, but about who in the military system could or would do it better.
CAAFlog executive editor Phil Cave published this op-ed yesterday in The Hill:
Congress, not the courts, say who has authority to court-martial servicemembers
"More troubling is [Schlueter & Schenck's] misapplication of the Supreme Court’s Solorio v. United States decision by suggesting that the court somehow requires commanders to decide to prosecute at court-martial. And, they allude to unspecified difficulties in prosecuting cases — something irrelevant to who decides to prosecute. In 1987, the services successfully prosecuted 8,600 general and special courts martial. Did some challenge the service-connection for their prosecution? Yes, some did but not enough that courts martial became “unworkable.” The statistics are publicly available.
Solorio reversed O’Callahan v. Parker and Relford v. Commandant by saying that the Constitution precluded court-martial prosecution of a service member for crimes in the civilian community; if they were not “service-connected.” However, neither O’Callahan nor Solorio said anything about who should make the prosecution decision."
UPDATED 16 May 2021 in light of some comments. (Thanks for commenting!)
In Mellette, the appellant was convicted of child sexual abuse on diverse occasions. The "enlisted" panel sentenced him to five years and a DD.
On appeal he had six assignments of error. Three were determined to be error and one of them got him a confinement reduction from five to three years. (Note, this is a 2019 case so it is likely appellant is close to his MRD, assuming that is, no certification to CAAF and that court overruling NMCCA.)
Here is a link to what I have understood to be S.B. 1520 (per Congress.gov)
To reform the disposition of charges and convening of courts-martial for certain offenses under the Uniform Code of Military Justice and increase the prevention of sexual assaults and other crimes in the military.
This Act may be cited as the ‘‘Military Justice Improvement and Increasing Prevention Act of 2021’’.
Read his keynote address here: Appellate Review of Courts-Martial in the United States
"One of the novelties of the UCMJ was the institution, for the first time, of direct civilian judicial review of courts-martial. This was not popular with many in the services, who felt that it threatened command prerogatives. (In fact, the Elston Act’s Judicial Council, which provided administrative, not judicial, review within the Army, was an alternative that many judge advocates favored.) In the end, however, the supporters of real judicial review won out, although the course of debate was by no means straightforward."
Please, if you haven’t already done so take a moment to visit our informal survey of trial experience here. The more responses we have the better we can have an understanding of the general level of trial experience across the Services. Thanks.
CCA ORAL ARGUMENTS
ACCA has one oral argument scheduled for 25 May 2021, the others do not have any scheduled.
United States v. Taylor. In this MJ/GP case, Appellant was sentenced to 60 days confinement, a dismissal, a forfeiture, and a reprimand (are we seeing quite a few AF cases with a reprimand?). He was convicted of five specifications of 133 and two of fraternization. Yes, another post-trial error case. Interestingly, the court also had this to say.
This case was docketed with this court on 4 November 2020, without an appellate defense counsel assigned. On 14 January 2021, this court sent a certified letter to Appellant advising him that his case was docketed with this court and informing him that he had 60 days to file a brief assigning any error pursuant to Rule 18(d) of the Joint Rules of Procedure for Courts of Criminal Appeals. JT. CT. CRIM. APP. R. 18(d). Appellant submitted no response. No appellate attorney has entered an appearance before this court on behalf of either Appellant or the Government.
The court also pointed out various errors and inconsistencies in the record itself.
The decision does not address the odd circumstances regarding the absence of appellate counsel. Perhaps they consider it mooted by their action on the case.
Remanded, and dismisses appellate jurisdiction. Judge Annexstad dissented.
United States v. Helpingstine. In this MJA NG case, Appellant was convicted of two specifications of sexually abusing a child and was sentenced to three years, a DD, reduction, and reprimand. On appeal, he challenged the factual sufficiency of the evidence. Affirmed.
Reuters story here.
"The Justice Department said Christopher Warnagiris, 40, a Marine Corps major from Woodbridge, Virginia, has been charged with federal crimes, including obstructing law enforcement officers during civil disorder and obstruction of justice. The FBI said Warnagiris has been stationed since last summer at the Marine Corps base at Quantico, Virginia.
A law enforcement official said Warnagiris is believed to be the first active duty U.S. military officer to be charged in connection with the Jan. 6 riot. The official said that about 40 U.S. military veterans also have been charged, as well as four military reservists."
The National Institute of Military Justice (NIMJ) has published a statement on PROSECUTORIAL DISCRETION UNDER THE UNIFORM CODE OF MILITARY JUSTICE. You will see recommendations beyond what is in the current Military Justice Improvement & Increasing Prevention Act (SB1525 of 29 April 2021).
NIMJ recommends transferring prosecutorial discretion not only for all sex offenses, but also for all serious offenses – those for which the authorized maximum punishment exceeds one year’s
"This Court granted review to determine whether the CCA conducted a valid Article 66(c), UCMJ, review when it 'failed to consider Appellant’s First and Fifth Amendment claims even while entertaining his Eighth Amendment claims.' We hold that applicable precedent from this Court requires the CCA to consider all of Appellant’s constitutional claims."
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