Read Statistics don't support removing commanders from military justice at The Hill.
"THE REAR ADMIRAL JOHN S. JENKINS WRITING AWARD FOR LAW STUDENTS
The Rear Admiral John S. Jenkins Writing Award honors a leader of the military bar who was a co-founder of NIMJ, the inaugural chair of the Advisory Board, and thereafter a Director of NIMJ for many years.
This award is presented to the best nominated paper written by a law student on a military legal topic and reflects Rear Admiral Jenkins’ deep commitment to both legal education and military justice.
Rear Admiral John S. Jenkins served in the Navy for 28 years ultimately serving as The Judge Advocate General of the Navy. He also served as Senior Associate Dean for Administrative Affairs at the George Washington University Law School and as a member of the Cox Commission, which was convened by NIMJ in 2001 to recommend improvements in the Uniform Code of Military Justice.
The award carries a $250 prize and certificate. The paper may also be published on the NIMJ website with the author’s consent. Students may nominate their own work, including work that has been published in a law journal; faculty may also nominate deserving student papers.
Papers and/or published articles are eligible for this award if they were written by a candidate for the J.D. (that is, by a student who has not yet completed his or her degree) in academic year 2020-2021.
Submissions will be evaluated by a committee of law professors and practitioners on the basis of “excellence in writing on military law.” If no paper is deemed appropriate for the award, the committee may elect not to make an award. If more than one paper is deemed worthy of recognition, the committee may honor such papers with honorable mention.
Interested students or recommending faculty should submit the paper, accompanied with the author’s name, phone and email, along with any publication information on the paper. Submit your paper to NIMJ (firstname.lastname@example.org) no later than 31 July 2021."
"Sexual harassment and sexual assault are ongoing problems in the military. The Department of Defense responded in 2019 with sweeping changes in how the military handles sexual misconduct, including a proposal to criminalize sexual harassment in the Uniform Code of Military Justice (UCMJ). This Article, co-authored by an expert on workplace sex discrimination and a former military officer, responds to this proposal. We argue that sexual harassment, however reprehensible, is not criminal conduct. Moreover, criminalization is likely to undermine the military’s efforts to prevent and punish sexual harassment by raising the stakes for the involved service members, thereby deterring reporting, and by imposing a high evidentiary standard. Building on these insights, we propose a set of reforms to the UCMJ aimed at aligning the military justice system with civil employment discrimination law. These proposals include assigning independent authority to investigate and discipline sexual harassment outside the chain of command, using administrative actions that employ a civil burden of proof to adjudicate sexual harassment complaints, and making compensatory damages available to service members for economic and psychological injuries caused by sexual harassment. The military maintains that preserving good order and discipline justifies its independence from the reach of civil courts and law. Federal courts have obliged by holding that Title VII does not cover uniformed military personnel. In exchange for this independence, the military justice system must provide the basic protections of the civilian justice system."
Read Sexual Harassment is Not a Crime: Aligning the Uniform Code of Military Justice with Title VII here.
Editor's note: This is a refreshing and courageous argument in the current environment. It counteracts the knee-jerk tendency to argue that all societal problems should be responded to with criminalization, even when the criminalization only affects people that we "don't like."
Today Prof. Schlueter sent us the final draft of his defense of commander disposition authority. Read Taking Charge of Court-Martial Charges (posted in draft form earlier) here.
Editor's note: In the central section of the argument, Part 5, the authors aim to demonstrate an inherent connection between commander disposition authority and good order and discipline. The core of this section is a citation to the famous case Curry v. Secretary of the Army, 595 F.2d 873, 878 (D.C. Cir. 1979). But Curry is a judicial defense of the congressional balance struck regarding Due Process in military justice.
It is an expression of judicial restraint: "At the outset, we note the difficult burden a litigant shoulders when he challenges congressional decisions governing military practices. Article I, section 8 of the Constitution empowers Congress to “make Rules for the Government and Regulation of the land and naval Forces.” The importance of maintaining an effective military to insure national security renders this power especially broad. Consequently, a court reviewing legislatively approved military procedure “must give particular deference to the determination(s) of Congress.” Curry v. Sec'y of Army, 595 F.2d 873, 876–77 (D.C. Cir. 1979).
What, then, would Curry have to say to a legislator who is herself tasked with striking the balance?
“Why aren’t there any Black people?,” Pedro Bess asked his defense attorney. Bess, who is Black, was on trial for allegations of sexual misconduct against white women. The ten-member jury was all white.
The trial judge denied Bess’s challenge, as did two appellate courts. Although constitutional standards have evolved to provide for racial diversity of juries in criminal trials, Bess was shut out from those developments.
That is because Bess was in the Navy and was tried by court-martial. Bess’s military commander enjoyed broad discretion to handpick the individual panel members (jurors).
As troubling as Bess’s case is, a quick fix seems unlikely since the Pentagon has spent the better part of the past decade resisting proposals spearheaded by Senator Kirsten Gillibrand to reform the military justice powers of commanders. Still, this year’s efforts enjoy broader bipartisan support and appear likely to pass in some form.
Bess’s case is just the latest news item in a growing recognition that U.S. military justice is plagued by racial disparities, and that, for good or ill, commanders bear the consequences of calling the shots.
A 2019 study from the Government Accountability Office (GAO) analyzed military justice actions from 2013 to 2017 and found that Black servicemembers were about twice as likely to face general or special court-martial as white servicemembers.
The problem extends more broadly to racial retaliation. As the U.S. reckoned with the problem of systemic racial injustice last year, a Reuters special report found that the military’s process for reporting discrimination to command-appointed representatives was perceived to be a dead end. Few complaints were substantiated, and minority servicemembers who complained of racial discrimination were often viewed as being in defiance of their units.
Surveys of Black, Hispanic, and Asian servicemembers show that significant numbers have experienced racial discrimination. Many thought that reporting an incident would not change anything, and a higher percentage thought that reporting would negatively impact them.
Military leaders acknowledge that they are just beginning to understand the scope of the crisis of racial disparities in military justice. “Overall, results reveal much work is needed to improve the reporting process for those who experience racial/ethnic harassment and discrimination,” the Pentagon acknowledged in a press release last year.
Lt. Gen. Charles Pede, the Judge Advocate General for the Army, testified that the GAO report “raises difficult questions – questions that demand answers. Sitting here today, we do not have those answers.”
Pede directed a comprehensive assessment “to get to the left of the allegation, left of the disposition decision, to examine why the justice system is more likely to investigate certain soldiers…”
“Getting to the left” is a military expression for acting early in the timeline of an incident to address problems before they worsen. It is how other injustices in military justice have been counteracted in recent years.
For example, at the height of the Afghanistan and Iraq conflicts over a decade ago, thousands of military members returned from combat and faced courts-martial or involuntary separations with stigmatizing discharges. By just focusing on the misconduct, military commanders were often not aware that some of the misconduct was symptomatic of post-traumatic stress disorder (PTSD) or traumatic brain injury (TBI). When this connection became more widely known, a change in the law required screening for combat-induced PTSD or TBI for many adverse actions.
In those cases, when commanders were required to find out about crucial factors that occurred before the misconduct, they were able to make more fully informed choices about wielding their military justice powers. “Getting to the left” resulted in better decisions. In this way, commanders could be required to investigate the presence of racial harassment or discrimination, especially before pursuing punishment of minority servicemembers for minor transgressions. Even if commanders’ traditional military justice powers are soon curtailed, their recommendations will still carry weight and should be fully informed.
Meanwhile, Pedro Bess is trying to “get to the left” of his own court-martial conviction: he recently filed a petition for a writ of certiorari at the U.S. Supreme Court.
Exercising his authority under 10 U.S.C. § 825, a military commander hand-selected ten White members to sit on a general court-martial panel—the military equivalent of a jury—for a Black man charged with sexual misconduct against White women. Before selecting this all-White panel, the commander received a report showing the White women first identified their perpetrator not by a name, but by the color of his skin: Black.
Docket entries for Bess, here.
Prof. Vic Hansen, who has emerged as a leading opponent of the MJIA, writes an op-ed in USA Today (apparently as a counterpoint to the position of the Editorial Board):
"Commanders are key to eliminating sexual assault and harassment in the ranks. If commanders are removed from the very system that is intended to help ensure good order and discipline, then they would be less invested in addressing the problem of sexual assault and less accountable when they fail. This is precisely the wrong approach."
Appellant, charged with and originally convicted of one specification of sexual assault against Staff Sergeant (SSgt) FC, moved to dismiss the specification upon rehearing on the ground that the Government violated his right to a speedy trial under the Sixth Amendment. The military judge granted the motion and dismissed the case with prejudice, after which the Government appealed to the United States Air Force Court of Criminal Appeals (CCA), under Article 62, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 862 (2012). The CCA reversed and Appellant appeals. We hold that the military judge did not err in granting Appellant’s motion to dismiss and reverse.
The nub of the issue is the fourth Barker v. Wingo, 407 U.S. 514 (1972) factor, prejudice.
[The AFCCA] reasoned that Appellant was not prejudiced by the delay of the rehearing because he had “failed to demonstrate” that (1) “TSgt KW and LB lost their memories during the period of facially unreasonable delay” or that (2) “the lost memories of TSgt KW and LB have actually prejudiced his defense at trial, in light of the availability of their prior testimony and other testimony that remains available.” Additionally, the CCA stated that that lack of prejudice “outweigh[ed] the remaining [Barker] factors that, taken together, only moderately favor [Appellant].
No. 21-0201/AR. U.S. v. Adrian L. Ingram, Jr. CCA 20190610. 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 CONVENING AUTHORITY'S FAILURE TO TAKE ACTION ON THE SENTENCE DEPRIVED THE ARMY COURT OF JURISDICTION UNDER ARTICLE 66, UCMJ.
No briefs will be filed under Rule 25.
United States v. Leal.
United States v. Lancaster. Convicted by an 'enlisted panel' appellant was convicted of one specification of stealing military property and sentenced to 30 days, a BDC, a reduction, and a reprimand.
Appellant claims her trial defense counsel violated her right to autonomy in her defense by conceding her guilt at trial. Additionally, in matters submitted pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), appellant asserts her counsel were ineffective because they failed to comprehend the law relevant to her case. We disagree on both counts, and affirm the findings and sentence.
Methinks a little more to come on the concession of guilt by DC.
United States v. Stefanek. In this mixed plea MJA case appellant was sentenced to 24 months confinement, a BCD, and other stuff. Appellant pleaded guilty to one specification of absenting himself from his place of duty and one specification of unlawfully carrying a concealed weapon into his place of work; he also was convicted, contrary to his pleas, of one specification of kidnapping. The appellant raised six issues.
At 0800, on 1 April 2019, Appellant’s supervisor and mentor, SB, sat at her office desk when Appellant came to see her carrying a long shipping box, a duffel bag, and a soda. SB was a noncommissioned officer (NCO) and the two had known each other for approximately eight months. Although Appellant’s voice was faint, SB heard him say, “Can we talk? If not, I’m going to kill myself,” or words to that effect. SB asked Appellant to repeat what he had just said, which he declined to do. SB asked Appellant to write “Do Not Disturb” on the whiteboard outside her door, and Appellant complied. Appellant then reentered SB’s office, closed the door, and locked the pushbutton knob on the inside of the door without being asked. As Appellant sat in a chair next to the door, SB then asked what was in the box, and Appellant told her he had a shotgun. SB asked to see it, and Appellant partially removed the gun from the box. SB did not know if it was loaded and had thoughts that she would not make it out of her office or see her family again. Appellant related that he would kill himself if she did not talk with him or if there were any interruptions. SB had a “long talk” with Appellant and did not feel free to leave even as she needed to use the restroom. During their conversation, SB attempted to contact others outside the office by asking for Appellant’s permission to contact MG, an NCO junior in grade to SB, who was scheduled to come to her office, and to tell him not to come. Appellant gave her his permission to contact MG. MG contacted SB on her cell phone, and SB was able to message him at 0809 to say that Appellant was in her office and had locked the door. This was the first time that she notified anyone that she was being held against her will because Appellant was “watching [her] every move,” and SB wanted to comply with his demands for no interruptions. MG immediately asked, via text message, if he should help or call someone. When SB did not respond, MG knocked on SB’s office door, but no one answered. MG realized the door was locked, so he went to find the first sergeant.
Chief Eddie Gallagher is back in the spotlight, this time, taking his version of events to a podcast. Many will remember Gallagher's case, in part, because of its high publicity, gaining notice and comment by President Trump, in addition to raising many potential UCI questions.
As reported by Task & Purpose, Gallagher did an interview with "The Line" as part of their series finale, where he confesses, or rather sheds light, on the moments that led the Navy to prosecute him for war crimes. Among those admissions, Gallagher claims that his team's intention was to kill the ISIS fighter and that "everybody was on board." Notably, he also admits that instead of rendering medical aid, they practiced medical procedures on the fighter because "he was going to die, regardless."
While these admissions are shocking, only time will tell what will come of them. When asked for comment, the Navy declined. With a new administration in power, will there be any repercussions for these admissions or will they simply drift into the abyss.
Elizabeth M. Berecin
This is the CGCCA's first decision of the year and Leal's second appearance before the court. (In 2020 the court issued six opinions of which four are published. Keep in mind that the CG is a smaller and more disciplined force.)
In 2016, a special court-martial (Leal I) convicted Appellant, contrary to his pleas, of a single specification of abusive sexual contact[.] It adjudged, and the Convening Authority approved, a sentence of reduction to E-1, confinement for thirty days, and a bad-conduct discharge. On appeal, we concluded the specification failed to state an offense and set aside the conviction, dismissed the charge and specification, and authorized a “new trial . . . upon a different specification.” United States v. Leal, 76 M.J. 862, 863 (C.G. Ct. Crim. App. 2017).
Leal raised three issues on appeal; two connected to the jury deliberations and one of post-trial delay.
Although the sentence in Leal II falls short of the jurisdictional minimum of Article 66(b), UCMJ, both parties assert that the doctrine of continuing jurisdiction applies—that jurisdiction over Leal I, with its jurisdictional sentence, extends to Leal II. We ultimately agree, but though the doctrine of continuing jurisdiction is generally well-established, there is scant precedent applying it to the procedural setting of this case: fresh charges referred to a court-martial after an appellate court dismissed the original ones.
The court distinguishes Leal from the common case where there is a rehearing on the original charges. In discussing R.C.M. 810(e), the court concludes that it is dealing with "an "other" trial" as defined so has jurisdiction in these unusual circumstances. The court does so by reference to Article 63, UCMJ, explicitly finding that the statute establishes appellate jurisdiction not the President through the MCM. The court also adopts reasoning from the NMCCA in United States v. Lee, 72 M.J. 581 (N-M Ct. Crim. App. 2013) (certificate for review withdrawn, 70 M.J. 351 (C.A.A.F. 2011).
The UCMJ "debates" is scant but implies the court may be right on what Article 63 means. See Discussion Larkin-Brooks-Graffenfried interchange. HH at 1180 The main concern at the time of the hearings was that new statute was perceived to allow an "acquittal" to be retried.
On the members issue developed, but not enough, in a post-trial hearing ordered by the convening authority;
Register at the link here for the event today at 12:00 pm EST.
"Your money or your liberty? Barring certain limitations, monetary penalty or incarceration awaits service members who have fines and contingent confinement — i.e., sentence conditions allowing for the imposition of confinement if an individual fails to pay a punitive fine — adjudged against them under the military justice system. This is the case despite recent significant changes to the Manual for Courts-Martial (MCM) and Rules for Courts-Martial (RCM) and contrary interpretations of how to implement contingent confinement. The RCM outlines military fine enforcement through contingent confinement in Rule 1003(b)(3), which states that sentences including fines “may be accompanied by a provision” providing “that, in the event the fine is not paid,” the convicted individual may be “confined until a fixed period considered an equivalent punishment to the fine has expired.” Although another rule addressing this punishment was removed from the RCM by Executive Order 13825 in 2018 — Rule 1113(e)(3), which described contingent confinement as replacing any associated fine and the manner in which this substitution must take place — Rule 1003(b)(3) was left unchanged. Both courts and scholars, however, have stumbled in interpreting this Rule, creating confusion as to its true legal effect and viability for achieving certain penological outcomes. In light of the aforementioned recent removal of Rule 1113(e)(3) from the RCM and inaccurate scholarly and judicial presentations, this article clarifies the law of military fine enforcement through contingent confinement and offers recommendations for its use."
Read the full article here.
"Service members living with HIV are confronted with a set of policies regulating everything from their sexual behavior to their ability to hold certain jobs. Some of these rules impose criminal liability. Others make it difficult for people living with HIV to enlist, become commissioned officers, or deploy overseas.The military’s approach was developed in the 1980s, and reflected the bleak outlook for those diagnosed with HIV at the time. Today, however, advances in treatment and prevention have transformed HIV from a deadly disease into a manageable chronic illness—but the military’s policies remain stuck in the past. In addition to being medically unsound, these policies unfairly single out service members with HIV, increase stigma, and are needlessly punitive. They are also vulnerable to legal challenge under the Administrative Procedure Act and the Fifth Amendment. Drawing on interviews with service members, lawyers, and public-health experts, this Comment makes the case for reform."
Read the full comment here.
Editor's note: The Gutierrez case is discussed extensively in the paper.
Editor's note: the Marine Corps deserves great credit for permitting its junior officer to publish reflections on these issues.
Investigation finds no evidence linking sexual harassment to SPC Guillen's murder
But finds significant faults with public affairs management and social media engagement
Disclaimer: The views expressed herein are solely my own, and should not be attributed to anyone else
A recently released report of investigation confirmed that SPC Vanessa Guillén's murder had no direct relationship to any sexual harassment or sexual assault. Specifically, the report found "no credible evidence to conclude SPC Robinson [who murdered SPC Guillén and took his own life when confronted by authorities] sexually harassed SPC Guillén or that they had any relationship outside of their work setting."
But don't expect that to change the narrative.
The tragedy of this young Soldier has been abused by unscrupulous people with agendas of their own from the very beginning. As I noted in a prior post, the propaganda machine surrounding SPC Vanessa Guillén's disappearance launched a movement and inspired legislation bearing her name regarding sexual harassment and assault, despite the complete lack of any evidence that these issues were connected to her death. Any SHARP related topics did not enter the picture until the Guillén family hired an attorney, which the report confirms this to have occurred on June 16, 2020. Thereafter, due in large part to publicity generated on social media, SPC Guillen's disappearance became a much higher profile incident and the association with sexual harassment was taken for granted.
It bears mentioning that the report found no fault with the Army's search efforts. Instead, it found plenty of fault with the way publicity surrounding SPC Guillén's disappearance was handled. Specifically:
"[S]ocial media presented a unique challenge… [and] filled a void in command messaging that allowed a negative narrative about Fort Hood and the U.S. Army. Support on social media for the Guillén family was robust, and it overwhelmed Task Force Phantom / Fort Hood capabilities from the onset. An analysis of the social media environment conducted in support of this investigation revealed an uncountered social media-driven negative and erroneous narrative of Fort Hood and the U.S. Army that grew exponentially."
It should also be noted that the report found that SPC Guillén did experience sexual harassment, but she did not make an official report and it did not involve SPC Robinson. There were two incidents; one involved an invitation in Spanish to participate in what she translated to be a "threesome," and the other involved an incident during a field exercise when someone conducting a patrol happened upon her while she was conducting personal hygiene, which SPC Guillén felt was not accidental. There is no evidence to connect these events to SPC Robinson or his motive for murder, which based on SPC Robinson's girlfriend's statement (who is being charged in connection with her role in disposing of the remains), in which she indicated that SPC Robinson was motivated by fear of disclosure of SPC Robinson's relationship with a married woman.
Unlike sexual assault, the Army's criminalization of adultery is not material for viral social media campaigns. So it is unlikely that the actual motive behind the senseless murder and horrific dismembering of SPC Guillén's remains will ever receive any discussion in the mainstream media, who simply took the allegations of sexual harassment for granted and ran with it. On the other hand, the Army's inability to deal with false publicity spreading through viral social media - and consequently influencing mainstream media - will likely continue to be exploited by not only the self-serving activism of those who have no qualms about exploiting a deceased Soldier's name for their own agendas and profit, but also by adversaries who surely took note of this incident as yet another illustration of the ease with which the information environment can be manipulated to achieve a desired result, even contrary to objective facts.
Whatever the merits of the Fort Hood report or critiques of the effectiveness of the SHARP program may be, and whether or not SPC Guillén experienced unrelated events of sexual harassment, it is clear sexual harassment had nothing to do with the murder that became the military's #MeToo moment.
Editor's Note: I do not understand how activists can be "self-serving" on this issue, or how they are profiting. But Wellisch's point about the phenomenon of social media narratives in general seems clearly right.
"All U.S. jurisdictions recognize individual self-defense as an inherent right belonging to each person. As an inherent right, self-defense is rooted firmly in natural law, as opposed to positive law, which entails a revocable grant from a sovereign. This article contends that prior legal recognition of such an inherent right precludes a sovereign from unilaterally limiting an individual military member’s exercise of or claim to self-defense. The story of U.S. Marine Corps Medal of Honor recipient Sergeant Dakota L. Meyer serves as a vehicle for the argument that the U.S. military is improperly limiting the right of individual self-defense and the closely related doctrine of defense of others. In support of this contention, the scope of individual self-defense guaranteed by the criminal justice systems of the U.S. military and a majority of states is compared with the scope of self-defense permitted for U.S. military personnel operating in a foreign battlespace."
From SELF-DEFENSE UNDER SIEGE: CREEPING CRIMINALIZATION OF INDIVIDUAL SELF-DEFENSE IN THE U.S.MILITARY, by Brian Bengs.
Gen. Milley has put the fox among the chickens?
Gen. Mark Milley, chairman of the Joint Chiefs of Staff and senior military adviser to the president, said Monday he is now open to a proposal that would take decisions on sexual assault prosecutions out of commanders' hands, AP reports.
Axios among others is reporting as we write.
Please join Global Military Justice Reform on Monday at 0900 East Coast Time, for Town Hall 15. Zeke Kennen will speak about the latest changes to Art. 66, UCMJ, concerning factual sufficiency review. This important event is co-sponsored by CAAFlog. (I should note that the Town Halls are frequented by international visitors who bring different perspectives to the discussion.)
Meeting ID: 828 2803 0678
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"The ECOWAS court has delivered judgment in a suit filed by an aircraftwoman who was raped by her superior officer and dismissed from the Nigerian Air Force after she lodged a complaint.
The court awarded $200,000 (N90 million) to the applicant (name withheld).
In addition to the monetary awards, the court "mandated the Air Force to investigate and prosecute Vibelko for the rape of the victim." (Emphasis added.)
In the Sahara Reporters article, further down it gives this information,
"An order of this Honourable Court compelling the defendant, its agents, organs, servants, privies or by whatever name called to pay over to the Applicant the sum of $20, 000,000.00 (about N9 billion) only as aggravated and punitive damages that will serve as a deterrent to the defendant.
Cross-posted with GMJR, cheers, PC.
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