"No. 20-0262/AF. U.S. v. Kaleb S. Garcia. CCA 2019-07. On consideration of Appellant's petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862 (2012), it is ordered that said petition is granted on the following issue:
WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN FINDING THAT THE MILITARY JUDGE ABUSED HER DISCRETION IN SUPPRESSING EVIDENCE OBTAINED AS A RESULT OF A SEARCH AND SEIZURE OF APPELLANT'S DNA.
Pursuant to C.A.A.F. R. 19(a)(7)(A), no further pleadings will be filed."
Lower court opinion.
The primary issue appears to be the sufficiency of the search authorization. More discussion to come soon...
Some highlights (please post any additional info you may have):
Below is a brief description of a recent ACCA opinion.
Prof. Wherry circulated this yesterday on the new SSRN Veterans & Military Law & Policy eJournal.
You Catch More Flies with Honey: Reevaluating the Erroneous Premises of the Military Exception to Title VII -- Craig Westergard
Abtract: Discrimination is a problem in the military. Though Title VII of the Civil Rights Act prohibits employment discrimination in the "military departments," courts have held that the statute does not apply to members of the military. The primary justification for this judge-made exception is that Title VII suits might have an adverse effect on military discipline. In their haste to condemn suits for military discrimination, however, courts tend to overlook the negative effects discrimination has on discipline, as well as the positive effects of diversity. This Note calls upon Congress to abrogate the military exception to Title VII in the alternative, it argues that courts should reconsider the exception in light of discrimination's true effects.
In addition to its eroded policy foundations, the judicial exception to Title VII contradicts the ordinary language of the statute. The term "military departments" naturally includes servicepersons, who are employees, and there is no compelling reason to depart from the statute's ordinary meaning. The exception is also contrary to the statute's broad remedial purpose and much of the legislative history surrounding Title VII. The rationales the circuit courts use to conclude that members of the military cannot bring Title VII claims are inconsistent and contradictory, and the exception has resulted in confusion when applied to quasi-military personnel. As such, the military exception to Title VII should be abandoned — left in the past along with other vestiges of discrimination.
Don Rehkopf has sent over a CLE he gave for NY lawyers on discovery obligations. The relevant section is uploaded here, with NY law redacted to avoid distraction.
Michel's post below, and Phil Cave's response, makes me wonder how often Brady violations occur at courts-martial.
Then-Chief Judge Kozinski wrote in 2013: "There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it." United States v. Olsen, 737 F.3d 625, 626 (9th Cir. 2013) (Kozinski, CJ, joined by Pregerson, Reinhardt, Thomas, & Watford, dissenting from denial of rehearing en banc).
Is the same true in the military?
On Monday, COL Douglas Watkins, the military judge presiding in the case of United States v. Khan ruled that the prosecution had systemically failed to meet "the spirit or letter of Article 46, 10 U.S.C. §949j, R.M.C. 701, or accepted standard practice in the military, it has created needless litigation and potentially delayed the resolution of this Commission." As a sanction, Judge Watkins gave the defendant, Majid Khan, a year of credit against the sentence the military commission will ultimately impose.
Khan pled guilty in 2012 as part of a plea agreement in which he agreed to testify at the September 11th trial. As the September 11th case has dragged on over the intervening years, Khan's sentencing has been routinely postponed.
The present controversy arose after the Secretary of Defense designated RADM (Ret.) Christian Reismeier as the military commission's convening authority in 2019. Reismeier had a long professional history of supporting the Office of the Chief Prosecutor and recused himself from two military commission cases on which he had played a public role when he took the job. Khan sought discovery into whether Reismeier's past conduct should also disqualify him from continuing to exercise convening authority in Khan's case and COL Watkins ordered the prosecution to produce that discovery back in September 2019.
In a ruling issued Monday, Watkins chastised the prosecution in the starkest terms possible. "The Government's sovereign obligation," he wrote, "in maintaining this prosecution is to ensure not a particular outcome, but rather that justice shall be done. Gamesmanship, second-guessing, and replacing the statutory language with the Government’s unique interpretation of the discovery rules is unacceptable and will not be tolerated by this Commission." After reciting a series of particular discovery abuses caused by what Watkins called the prosecution's "faulty and unreasonably restrictive" view of its Brady obligations, he found "the Government’s discovery practice worthy of sanction."
The most obvious sanction would have been to disqualify RADM Reismeier, since it was discovery in support of a motion to disqualify that the prosecution had improperly withheld. That remedy, however, was off the table because the Secretary had rescinded Reismeier's convening authority designation back in April. Watkins nevertheless concluded that a sanction was still needed to remedy the prejudice to Khan and to sanction the prosecution's misconduct. So, Watkins granted Khan a year of confinement credit.
Given that eight years have elapsed since Khan's guilty plea, the year of confinement credit is modest in practical terms. But the ruling is likely to have greater significance in the other military commission cases, particularly United States v. Mohammed, et al., and United States v. Al-Nashiri, which are both capital cases.
The blow up in Khan's case has pulled back the curtain on discovery practices that appear to be widespread within the Office of the Chief Prosecutor. If the prosecution took an "faulty and unreasonably restrictive" view of its discovery obligations with respect to an issue as ancillary as the potential biases of a convening authority, are these same standards being applied to the government's discovery obligations concerning torture, intelligence records, and the myriad other forms of Brady evidence that will be at the heart of these other cases?
Last month Sen. Kirsten Gillibrand (D-NY) introduced the Military Justice Improvement Act of 2020 (MJIA 2020) as an amendment to the National Defense Authorization Act (NDAA). Similar to multiple predecessor “MJIAs” Sen. Gillibrand has introduced over the last six years, MJIA 2020 would amend the Uniform Code of Military Justice (UMCJ) and transfer authority from the commander to a judge advocate (JA) to prefer, dispose of, and refer certain charges to trial by court-martial.
Because the core objective of MJIA 2020 - creating a system where the commander and a JA split prosecutorial discretion depending on the offense - represents fundamental change to our military justice system, its proponents bear the burden to justify why this is truly necessary and beneficial. That means providing persuasive evidence that 1) the current approach is significantly flawed and 2) that the proposed change would be a substantial improvement.
Fundamental change proponents have failed to carry their burden.... [Continued in PDF below].
Editor's Note: "Profs. Jenks and Corn have penned a contribution regarding the Military Justice Improvement Act that is intended especially for CAAFlog readers. It is longer than a normal blog post, and would be unwieldy to read on the blog, so I upload it as a PDF here."
Chris Jenks & Geoffrey S. Corn
CAAF denied this petition last week: No. 20-0250/AR. U.S. v. Edward Garner. CCA 20180563. The prior week the court denied "Appellant's motion to file the supplement to the petition for grant of review out of time is denied."
Thus, it appears an accused has been denied CAAF review without the benefit of a brief, all because defense counsel failed to file a brief in time. While we cannot be sure, the lower court opinion indicates this was not a merits case and had live issues (perhaps some Grostefon). Recall that U.S. v. Jason A. Scott was another Army case where a brief was not filed after repeated requests by CAAF.
This raises a number of interesting issues to consider.
1. What legal recourse does the accused have to continue pursuing appellate review of the case? Where will he/she/they sue, if anywhere?
2. These are examples of potential professional misconduct. Negligent representation in litigation is said to be the largest category of bar complaints in civilian practice (with immigration cases taking up the largest share of that category). What mechanisms are in place--and actually functioning--to report and address professional misconduct in the MJ system?
News from counsel -- Prof. Steve Vladeck.
SECARM on Friday Announced Investigation into Ft. Hood's Command Climate in Wake of Spc. Vanessa Guillén's Death
When asked by an online newspaper whether the investigation would be conducted internally, the paper reported a DoD official as responding "Hell to the no."
CNN reports that the review will be conducted by "four civilian consultants."
A recent DOJ press release indicates another somewhat odd exercise of federal jurisdiction over an active duty military member.
"According to facts presented in the guilty plea hearings, Kemp Sr. was employed by the U.S. Army as an active duty member when he forcibly raped a minor victim. After an investigation into the sexual assault was underway, his wife, Shanynn Kemp, intentionally harassed and dissuaded a witness from disclosing to law enforcement information about the sexual offense."
Kemp received a life sentence for this. What sentence do readers think he would've received in the military justice system?
A hearing one can watch from home this Thursday: the House of Representatives Committee on Homeland Security will hold a hearing addressing recent investigations into the Coast Guard Academy's handling of racial harassment claims.
After perusing the reports that gave rise to this, I get the sense that the Committee Members view this as a civil rights law issue, and not a military justice issue.
Recently, the NMCCA decided United States v. Flores-Rivas, a case concerning proper acceptance of a guilty plea.
Wes Martin writes at Real Clear Defense that the investigation of the commanders' failures to report sexual assaults should have gone further up the chain.
Yesterday, the 2d Cir. decided United States v. Mingo, a case about the non-delegation doctrine.
"No. 20-0267/AF. U.S. v. Ryan G. Uribe. CCA 39559. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:
WHETHER THE LOWER COURT ERRED IN FINDING THE MILITARY JUDGE DID NOT ABUSE HIS DISCRETION IN DENYING A JOINT MOTION TO RECUSE."
Lower court opinion here.
"On 8 March 2018, the Defense moved to have Judge Rosenow recuse himself from the case, on the basis that Judge Rosenow’s friendship with the senior trial counsel assigned to the case, Major (Maj) BJ, would undermine “public confidence in the fairness of the trial.” Attached to the motion was a summary of the Defense’s interview of Maj BJ on 8 March 2018, wherein he disclosed the following information: Maj BJ met Judge Rosenow in 2012, but their interactions were limited until they were both assigned as senior trial counsel based in the Washington, D.C., area beginning in mid-2014. During the following year, they discussed legal issues in the office and occasionally spent time together off-duty. Maj BJ attended Judge Rosenow’s bachelor party and wedding in 2015. In the summer of 2015, Maj BJ was reassigned to be a senior trial counsel based at Travis AFB, California....On some unidentified date Judge Rosenow’s wife went into labor while Judge Rosenow and Maj BJ were both out of town; Maj BJ’s girlfriend went to the hospital and was present for the birth."
Last week, the government filed its brief in opposition in the case of Kareem v. Haspel, which is now pending in the D.C. Circuit Court of Appeals. The appellant, Bilal Kareem, is a U.S. journalist who has spent much of the past decade reporting from the civil war in Syria. After a number of close calls, specifically five drone strikes in which he was nearly killed, Kareem developed a credible fear that he had been mistakenly included on the so-called "Kill List," the individuals for whom the use of lethal force is authorized abroad under the government's acknowledged but still highly classified targeted killing/assassination program.
In honor of the impending retirement of Judge Margaret Ryan from the U.S.C.A.A.F., I have commissioned a CAAFlog festschrift. Look for a series of essays commemorating her service later this summer.
Profs. Jenks & Corn weigh in on the raging debate here.
"This memorandum responds to the July 6, 2020 white paper by Professor Schlueter and
Dean Schenck. Much of their submission is recycled from material generated years ago in
connection with the Response Systems to Adult Sexual Assault Crimes Panel (RSP). This
memorandum does not seek to provide a point-by-point rebuttal. Rather, the Group of Experts has
focused on a few contentions that are so far wide of the mark as to cast doubt on the white paper
as a whole."
Below is a brief description of a recent AFCCA opinion.
The CAAF daily journal for 1 July--
No. 20-0288/MC. United States, Appellant v. Michael J. Brown, Appellee. CCA 201900050.
Notice is hereby given that a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 on this date:
DID THE LOWER COURT ERR FINDING THAT IT HAD POTENTIAL JURISDICTION?
Appellee will file a brief under Rule 22(b) on or before the 9th day of July, 2020.
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