Just yesterday two pieces came out weighing in on the debate about commanders and prosecutorial discretion:
Letter from Commanders
Letter of Profs. Corn, Jenks, and MacDonnell
For a contrary view, see this prior report (I signed it, but in my view I would go farther and extend this proposition to misdemeanor offenses as well):
Should commanders retain prosecutorial discretion over felonies? POLL HERE.
"No. 19-0198/NA. U.S. v. Willie C. Jeter. CCA 201700248. On consideration of the granted issues, the record in this case, and the opinion of this Court in United States v. Bess, __ M.J. __ (C.A.A.F. May 14, 2020), it is ordered that the judgment of the United States Navy-Marine Corps Court of Criminal Appeals is vacated and the case is remanded to that Court for further consideration in light of Bess."
Our MJ editor will be writing more about this soon.
"No. 20-0232/AR. U.S. v. Christopher B. Hukill. CCA 20140939. On consideration of Appellant's petition for grant of review of the decision of the United States Army Court of Criminal Appeals, we note that in affirming the sentence, the Court of Criminal Appeals stated that the approved sentence included confinement for four years when in fact the adjudged and approved sentence included confinement for two years. Accordingly, it is ordered that the petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed as to findings and to only so much of the sentence as provides for reduction to pay grade E-1, forfeiture of all pay and allowances, confinement for two years, and a bad-conduct discharge."
Was this just a typo?
REVIEW: “So You’re Telling Me There’s a Chance”: Why Congress Should Seize the Opportunity to Reform Article 37 (UCI) of the UCMJ—Colonel John Loran Kiel, Jr.
In an article circulated recently on SSRN’s new Military Law listserve, Col. John Loran Kiel, Jr. argues for an amendment to the text of Article 37 of the Uniform Code of Military Justice (UCMJ) to rectify what he considers a series of inconsistent opinions in the unlawful command influence (UCI) jurisprudence. His analysis of the case law centers on the decisions in Barry and Boyce, both high profile sexual assault cases, exploring the extent to which they show inconsistencies in the way the court has tended to weigh factors like the mantle of command authority and prejudice to the accused in actual and apparent UCI claims. Col. Kiel proposes to rectify these inconsistencies by amending the text of Article 37 to explicitly overturn these holdings.
Actually, what to do is the subject of NMCCA's (published) Order in United States v. Harper, issued 26 June 2020.
Appellate clients sometimes "disappear." They've been placed on appellate leave and don't bother to keep their contact information up to date. That's a problem for appellate counsel who need to talk to the client. The client needs to know what issues will be raised and most importantly appellate counsel needs to know if there are any "Grosty" issues.
So, what to do when a client disappears?
Link here. Are there any military justice implications?
Yesterday, the CAAF granted a discretionary petition for review on "whether Article 2, UCMJ, violates Appellant's rights to equal protection where it subjects the conduct of all fleet reservists to constant UCMJ jurisdiction, but does not subject retired reservists to such jurisdiction." This case comes to the CAAF from the NMCCA.
For the complete order granting review, see the link below:
Recently, the AFCCA decided United States v. Cink, in which the Court reviewed an involuntary manslaughter conviction.
Last week the AFCCA decided United States v. Escobar, a sexual assault case involving a factual sufficiency claim.
Few people responded to this one, but respondents were overwhelmingly in agreement with Lewis's outcome.
DOJ today unsealed that the USAO in SDNY is prosecuting an Army private for attempting to facilitate an attack on his unit while it was deployed by leaking information to terrorist groups.
"In approximately April 2020, the Army informed Melzer of plans for a further foreign deployment by his unit. Melzer thereafter sought to facilitate a deadly attack on his fellow service members. After he was notified of the assignment, Melzer used an encrypted application to send messages to members and associates of [a white supremacist group] and a related group known as the “RapeWaffen Division,” including communications regarding Melzer’s commitment to [the white supremacist group] and sensitive information related to his unit’s anticipated deployment such as locations, movements, and security, for purposes of facilitating an attack on Melzer’s unit." Link Here.
Law enforcement should be commended on intercepting this threat. My question is this: isn't this perhaps the paradigmatic service-connected crime, and if so, most appropriately prosecuted in the military justice system?
This would be a good issue spotter exam for a law school class. Military member potentially breaks quarantine rules and sparks a COVID-19 outbreak in Guam. Story here.
What offenses could be charged?
Over at GMJR, Josh Grubaugh has an important report regarding recent Hill testimony on racial disparities in military justice.
Should CCA factual sufficiency review be abolished? Readers overwhelmingly say "no."
I came across this yesterday while working on a law review article--an eminent criminal justice scholar (in his final, famous book) citing to military review of pleas as a practice that should be widely adopted:
"Plus, military-style review of guilty pleas would make the pleas that remain more accurate—a large social gain. Such review would also shift power from prosecutors to judges, another social gain." -- William Stuntz, The Collapse of American Criminal Justice 303 (Harvard 2011).
A few weeks ago, the CGCCA decided United States v. Flores, a case about a mistrial.
"Capt. Crozier will not be reinstated following an investigation into a coronavirus outbreak among the crew. The decision is the result of the Navy's deeper investigation into the USS Theodore Roosevelt and Crozier's conduct. The virus spread among the crew of 4,800 sailors, infecting 1,273 and killing one."
Click the following link to view the full article:
What am I missing? Bonus points to anyone who catches the reference in the titles.
AFCCA recently decided United States v. Proctor. Read a case report below, and a comment.
A very recent opinion from the Arkansas Supreme Court weighed in on military justice issues in the state’s national guard system.
On December 12, 2016, a small group of Arkansas Guardsmen, including Defendant Childers, gathered at 7:00 a.m. to head for a National Guard Bureau Aviation Safety and Standardization conference. Sometime between 6:00 p.m. and 12:00 a.m., Childers allegedly sexually assaulted a member of his unit. At a court-martial of the Arkansas Army National Guard, Childers entered a negotiated guilty plea to two specifications of Cruelty and Maltreatment and two specifications of Failure to Obey an Order or Regulation. Childers was also charged with Sexual Misconduct. Childers’ motion to dismiss based on his inactive duty status was denied. In his negotiated guilty plea, Childers reserved the right to appeal the court-martial’s decision on jurisdiction. The court-martial sentenced Childers to dismissal from the Arkansas Guard, 180-days confinement, a fine of 100% of all base pay and allowances for 180 days, and punitive reprimand.
A few weeks ago, CAAF decided United States v. Prasad, a case about propensity evidence.
In 2013, Appellant was convicted of child sex offenses and the NMCCA affirmed. But, the CAAF set aside the findings, dismissing one charge with prejudice and authorizing a rehearing on the others because the military judge failed to suppress evidence that was unlawfully obtained. At the rehearing, he was convicted of two charges. However, in this appeal, he moved for reconsideration due to new decisions from the CAAF. With his case before the NMCCA for the third time, the Court affirmed unanimously.
Sergeant First Class Dashaun Henry’s son JH told his neighbor, Staff Sergeant DC that his father was beating his mother. JH seemed afraid and screamed 'You better not hit her again' as he went back home after he alerted his neighbor. A few minutes later, Staff Sergeant DC saw Henry chasing his wife, KH, and children and his wife shouted 'He hit me. He hit me.' Staff Sergeant DC brought KH and the children into his home, before asking if she wanted to call the police. KH told the operator 'My husband has hit me a couple of times over the past few hours.' The police found potential evidence of the abuse on KH: red marks on her cheeks and a scratch on her neck.
The United States prosecuted Colonel Rice for possessing child pornography twice: first in the Middle District of Pennsylvania and then at a general court-martial. The court-martial took place after Rice pleaded guilty in district court but before that court sentenced him. Both prosecutions were based on the same conduct. Judge Ryan, writing for the court, agreed with the Army Court of Criminal Appeals that the parallel prosecutions violated the Fifth Amendment’s Double Jeopardy Clause. Reversing ACCA in part, CAAF further held that the error required dismissal of the court-martial charges, even though the district court had already dismissed the duplicative civilian charge.
The civilian and military charges were based on different statutes: The U.S. Attorney prosecuted Rice for violating 18 U.S.C. § 2252A. The convening authority referred a specification alleging that Rice violated Clause 2 of Article 134, UCMJ. That specification explicitly relied on Title 18 to define the offense under the general article. But even though the Army used Title 18 to define the offense, a strict application of the familiar Blockburger test would seem to confirm that the two charges represent different offenses because each contains an element that the other lacks. Blockburger v. United States, 284 U.S. 299, 304 (1932). Section 2252A contains a "jurisdictional hook" element, requiring a connection to interstate commerce. Article 134, of course, lacks this element. And since the military alleged a violation of Clause 2 of Article 134, the government had to prove that Rice’s conduct was of a nature to bring discredit upon the armed forces—an element not present in § 2252A.
Liam P. Hardy, the newest nominee to the CAAF, began his professional career in engineering. He earned his Bachelor of Engineering (B.S.E.) from Princeton University and then received his Masters of Science (M.S.) in aeronautics and astronautics from Stanford University. In 2008, he enrolled in the Georgetown University Law Center, where he served as an editor on the Georgetown Law Journal.
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