Sometimes cases can be decided like math problems—a legal rule, when applied to the facts, makes clear the outcome. At other times, it seems as if the law provides almost no guidance to the judge, giving only a vague standard that different people might apply differently. The difference between the two is the relative “determinacy” of the relevant law. Cases of the first type are undoubtedly easier for outsiders to evaluate as “correct” or not. Cases of the second type are more difficult to evaluate in that mathematic manner, but their reduced determinacy in some sense invites a higher-order evaluation that would not be permissible in a case where a rule is strongly determinate. Put another way, when rules do not strongly constrain judicial decision making, we are freer to consider the substantive justice of the decision or, say, its implication for future cases and for the court as an institution. Apparent unlawful command influence is a doctrine in this second category. The test is one of the vaguer legal tests one might ever find: whether the official conduct “place[d] an intolerable strain upon the public’s perception of the military justice system and that an objective, disinterested observer, fully informed of all the facts and circumstances, would…harbor a significant doubt about the fairness of the proceeding.” 76 M.J. at 249. Thus, a court reviewing a case for apparent unlawful command influence is explicitly licensed to consider “public perception[s]” of “fairness.”
Given such a doctrinal license, and given a case involving the most egregious and high level politicization of a criminal case in recent memory, CAAF had a chance in Bergdahl to make a proclamation about its institutional status and about the military justice system more generally—to proclaim that the system was truly independent of command influence (especially of politician-commanders), and that it would stand as the guarantor of that independence. CAAF had the chance to go on record that it would not condone criminal punishment resulting from a politicized process. Such a message in this era of politicized military justice—this era in which a president criticizes the light sentences of some, but pardons others and invites them on the campaign trail—would have been most welcome.
Of course, CAAF did not do that. It descended into a burden-shifting maze, cloaking a judgment-call in technocratic language. And even when one descends into the maze with the court, one must conclude that it took wrong turns. Most significantly, the court sub silentio applied the actual UCI test when the question at bar was apparent UCI. The evidence for the claim that the public would perceive no unfairness, according to the court, was that the result did not seem to be affected by the UCI. The case would have been referred to a GCM regardless of the comments, and in any event he pled guilty and received a very light sentence. What this misses is that “fairness” is more capacious a concept than getting a fair result—it is also about fairness in the process. Moreover, one should not so quickly assume away the inevitability of the result. The court suggests that the most important factor (“it cannot be emphasized strongly enough”) in determining absence of unfairness was Bergdahl’s guilty plea. Op. at 20. But guilty pleas take place against a coercive backdrop of government threats, and the court should not have been so easily comforted that a plea erases any procedural unfairness. Indeed, legions of academic studies support the opposite conclusion—that many pleas are themselves the result of an unfair process. See generally, Natapoff, Punishment Without Crime; Bibas, The Machinery of Criminal Justice. Bergdahl’s plea was made in the shadow of the official comments and the public controversy.
Two judges realized what was at stake. Judge Sparks’s dissent details a history of the system and of the court that shows that both Congress and the early CMA judges saw UCI as a threat, and that in some sense the whole point of the court was to mitigate it. Chief Judge Stucky went to the heart of the matter: the commander-in-chief’s “vicious and demeaning” remarks were heard by various decisionmakers, and the resultant strain on the system was therefore “intolerable.” In the words of John Hart Ely, “You don't need many heroes if you choose carefully.” Ely, Democracy and Distrust (regarding Earl Warren).
 One might expect that in a case considering public perceptions, amicus briefs from members of the public would be especially welcome. In this case, though, the court inexplicably rejected two academic amicus briefs: one from myself and LOAC editor Michel Paradis, and a second from eminent historians Jonathan Lurie and Richard Kohn. This is a highly unusual practice for an appellate court.
Did McCain and Trump's Conduct Place an Intolerable Strain on the Public’s Perception of the Military Justice System?
Take the Anonymous Poll Here. Really...we can't see your name.
Dateline: 28 August 2020
On 27 August 2020, CAAF issued its opinion in United States v. Bergdahl, an analysis is being written—standby.
In an important decision clarifying the extent to which the law of unlawful command influence applies to senior civilians, a divided CAAF affirmed the Army Court of Criminal Appeals in United States v. Bergdahl, finding that statements made by the late Senator John McCain and President Trump did not constitute apparent unlawful command influence.
On Tuesday, August 25th, CAAF granted the following petition for review.
No. 20-0289/AR. U.S. v. Kevin M. Furth. CCA 20180191. 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 RECEIVED EFFECTIVE ASSISTANCE OF COUNSEL WHEN HE WAS ERRONEOUSLY ADVISED THAT HIS PENDING RESIGNATION REQUEST, IF APPROVED, WOULD VACATE HIS GUILTY PLEA.
CAAF reviews U.S. v. Furth, on an issue that was personally submitted to ACCA pursuant to U.S. v. Grostefan. Furth, on appeal to ACCA, argued that his plea was improvident because he believed that acceptance of his RFGOS would vacate his findings and sentence and that the Secretary's approval of his RFGOS was an exercise of his power under Art. 74, UCMJ. Additionally, Furth submitted a Grostefan issue alleging that if the RFGOS did not set aside his findings and sentence, then he received IAC because he was advised that his plea would have that effect.
ACCA only discussed Furth's Grostefan issue in a footnote, stating that they did not find any prejudice in his counsel's alleged deficiency. Furth's affidavit submitted to ACCA included the following language, "[i]f I had known that pleading guilty would have prevented me from fully benefitting from an approved RFGOS, I would not have pleaded guilty prior to receiving a decision on my RFGOS." However, ACCA was not persuaded by this statement, stating that Furth did not state that "he would have pleaded not guilty but for his counsel's advice regarding the effect of a RFGOS approved post-trial." Additionally, ACCA stated that it was "objectively reasonable" to accept the plea deal. CAAF now reviews ACCA's finding that Furth was not prejudiced by his counsel's alleged deficiency.
ACCA's opinion here.
Global Military Reform Blog will hold its next Town Hall with Lieut. Col. Dan Maurer (West Point) who will speak on Going Deeper than the "Purpose" of Military Justice: Determining its Logic after Ortiz v. United States (Town Hall 7, Sept. 15, 2020, 0900 East Coast US Time). Please join us, and feel free to pass this invitation along to others who may be interest.
The TH is open to all
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GMJR TH's have drawn participants from around the world.
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The AFCCA remanded Senior Airman Christopher P. Finco's case, after finding colorable prejudice in the convening authority's decision memorandum.
Joshua Kastenberg (University of New Mexico) has posted this article to SSRN:
FEARS OF TYRANNY: THE FINE LINE BETWEEN PRESIDENTIAL AUTHORITY OVER MILITARY DISCIPLINE AND UNLAWFUL COMMAND INFLUENCE THROUGH THE LENS OF MILITARY LEGAL HISTORY IN THE ERA OF BERGDAHL
Posted today regarding an order last week:
"No. 20-0342/AR. United States, Appellant v. Dashaun K. Henry, Appellee. CCA 20190688. Appellant's motion to stay the trial proceedings is granted, and the trial proceedings are stayed pending further order of the Court."
This is the case in which the Government has sought interlocutory review regarding an evidentiary ruling, and TJAG certified the issue.
On August 5, 2020, the AFCCA denied Senior Airman Charles B. Justice's writ of mandamus, asking the Court to direct the military judge to initiate proceedings in his GCM on August 10, 2020.
On August 7, 2020, the AFCCA affirmed the conviction of Technical Sergeant Jeremy M. Holder on one specification of wrongfully possessing child pornography in violation of Art. 134, UCMJ. Opinion here.
On August 7, 2020, the AFCCA affirmed the sentence of SSgt Yogendra Rambharose, as reassessed by the convening authority. The AFCCA found that Rambharose's assignments of error did not materially prejudice his substantial rights.
Dateline: 21 August 2020
12 August 2020—AFCCA issued an Order in In re Justice a writ petition.
12 August 2020—AFCCA decided United States v. Heeter.
17 August 2020—NMCCA decides United States v. Lewis.
In the News—pending appellate cases.
Ongoing events suggest the possibility of courts-martial coming from the field either as a direct result of the incidents under investigation or because commanders will pay more attention to future similar events with attendant disciplinary actions—
Worth the Read.
With a declaration of martial law come courts-martial. So, Joseph Nunn, Martial Law in the United States: Its Meaning, Its History, and Why the President Can’t Declare It—. The Brennan Center 20 August 2020—a topical discussion. https://www.brennancenter.org/our-work/research-reports/martial-law-united-states-its-meaning-its-history-and-why-president-cant
We all have clients who are subject to sex offender registration. Here is a report which may have some small relevance or give ideas to us. Pickett, Satifka, & Shah, Labeled for Life: A Review of Youth Sex Offender Registration. Juvenile Law Center, 2020.
Ligeia Quackberg, The Prosecutorial Duty to Disclose Exculpatory Material: Appropriate Remedies and Sanctions. The writer was a LLM student in International Rights and Criminal Justice, Utrecht University.
Justin Murray, Policing Procedural Error in the Lower Criminal Courts, Fordham L. Rev. (forthcoming) [https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3675869].
On the horizon.
At Global Military Justice Reform blog, Joshua Grubaugh writes about Gangs and Extremists in the U. S. Military, activity which is or may become a source of appellate cases. https://globalmjreform.blogspot.com/2020/08/gangs-and-extremists-in-us-military.html. There is a link to a Military.com report about Army CID reports on such activity. Out in the civilian counsel world we are having people reach out who are under investigation—investigations that may lead to court-martial and an appeal.
A bit of history.
21 August 1987, Sgt. Clayton Lonetree, the first Marine court-martialed for spying, was convicted in Quantico, Va., of passing secrets to the KGB. Lonetree ended up serving eight years in a military prison. Dwight “ML” Sullivan was one of 12 counsel out of Code 45 who represented him in this one of many interesting cases. See United States v. Lonetree, 35 M.J.396 (C.M.A. 1990). The issues were complicated, including lying to a suspect that his statements would be kept confidential, lack of Art. 31, UCMJ, warnings by intelligence agents, and is there a right to a public oral argument on appeal. The case joined those seeking to set boundaries where non-DoD agents or civilian DoD employees interrogate a suspect. One of the early cases in that line is Quillen.
We all know that the briefs in CAAF granted cases become available once oral argument is scheduled. Did you know—you now do—that the CGCCA publishes all briefs of cases pending before them—go to https://www.uscg.mil/Resources/Legal/Court-of-Criminal-Appeals/Court-of-Criminal-Appeals-Appellate-Briefs/. Briefs, even in unrelated cases or with unrelated issues can sometimes be a goldmine for your case.
Last month, we flagged the case of Kareem v. Haspel, a case currently pending in the D.C. Circuit that asks whether U.S. citizens have a right to know whether they are being targeted for assassination abroad. The district court had dismissed Kareem's case on the ground that it was preempted by the state secrets privilege. Yesterday, Kareem filed his reply brief, arguing:
The government can only succeed if it can mislead this Court into believing that it is being asked to decide far larger questions than those actually presented. This Court should consider the specific facts of this case, not the parade of horribles presented by the government. The Court is not asked to decide, as the government suggests, what information about military operations ought to be disclosed publicly to all targeted individuals, and certainly not when an attack is imminent. Govt. Br. 24, 48. The Court need only to decide what should be disclosed here, to enforce this U.S. citizen’s Fifth Amendment right not to be deprived of his life without due process, given his unique, well-pleaded allegations that his government has tried to kill him on multiple occasions when there was no basis to do so.1 Recent precedent has reaffirmed that U.S. citizens in foreign countries—including and especially those in conflict areas—maintain their Fifth Amendment right to life and liberty, and there is no precedent from either the state secrets or political question jurisprudence that dictates otherwise.
One hears rumblings through the grapevine that many members of the bar are concerned about a four-judge court acting on petitions. Of course it is simple math that fewer judges means a lower probability of potentially garnering enough votes for a grant—a zealous advocate would/should make a claim that this prejudices his or her client. It is no surprise, then, that these rumblings broke through very recently in an amicus authored by Military Justice Editor Phil Cave for the National Institute of Military Justice (I played no role in the filing). Link here.
Some have asked whether a motion to reconsider a grant denial on the basis of the above argument would “waive” the argument itself, since the motion would be made to a four-judge court. In other words, asking four to decide whether five are needed would constitute an admission that only four are needed. In my view the four would be able to decide this issue under the doctrine of the “Rule of Necessity.” Beer v. United States, 696 F.3d 1174, 1179 (Fed. Cir. 2012) (federal circuit judges could decide case about judicial pay despite conflict of interest because they were only tribunal able to address claims).
No. 20-0294/AF. U.S. v. Ryan M. Vanvalkenburgh. CCA 39571. 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 issues:
I. WHETHER RULE FOR COURTS-MARTIAL (R.C.M.) 912(f)(4) VIOLATES A SERVICEMEMBER'S CONSTITUTIONAL RIGHT TO A FAIR TRIAL.
II. WHETHER APPELLANT WAIVED, FORFEITED, OR PRESERVED A CHALLENGE TO THE CONSTITUTIONALITY OF R.C.M. 912(f)(4).
Editor's note: FYI RCM 912(f)(4) relates to member selection/striking.
On August 7, 2020, the NMCCA affirmed the conviction of SgtMaj Schmidt for one specification of Article 120b(c), UCMJ, for committing a lewd act upon a 15 year old boy by indecent conduct.
Five years after the 20th edition was published, the Bluebook’s 21st edition is now available. That development affects military appellate practitioners, as CAAF Rule 37(c)(2) provides, with commendable simplicity: “Citations shall conform with the Uniform System of Citation.” ACCA Rule 17.1(c), on the other hand, states: “Citations must conform to the style prescribed in the current editions of the U.S. Army Court of Appeals Citation Guide, the Judge Advocate General’s School Military Citation Guide, and The Bluebook: A Uniform System of Citation, published and distributed by the Harvard Law Review Association.” Unhelpfully, the link to “Army Court Citation Guide” on ACCA’s website is inoperable. AFCCA Rule 17.1(a) directs: “Citations in filings shall conform to [the] current version of the U. S. Air Force Court of Criminal Appeals Citation Guide and the most recent edition of THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION (Columbia Law Review Ass’n et al.).” The AFCCA citation guide is available on the court’s website. The CGCCA rules don’t appear to address citation style. If I’m overlooking something in those rules, please let me know. Finally, NMCCA Rule 17.2 provides: “Citation form and writing style for appellate filings shall conform to the current edition of the Uniform System of Citation (‘Bluebook’), U.S. Government Publishing Office Style Manual, and The Chicago Manual of Style, in that order of precedence. Once available, the citation form and writing style prescribed in the Manual of Uniform Citation and Legal Style for the Military Courts (‘PurpleBook’)—which is based on the foregoing—shall take precedence over all other citation and style guides.” The PurpleBook? Does anyone know its status?
The Bluebook’s 21st edition is more svelte than its predecessor; it comes in at only 365 pages, compared to the 560-page 20th edition. Much of the reduction comes from exiling Table 2 – Foreign Jurisdictions – to a free online page.
One significant change is practitioners now have the option of citing case reporters’ names without a space where Bluebook rules would otherwise require one. B6. So, for example, West’s Supreme Court Reporter may be cited as either “S.Ct.” or the more traditional “S. Ct.” The “compilers” tell use this change was made to “address word limit constraints in court documents.” Judges everywhere are likely cursing that rule change.
Another change significant for military justice practitioners is that citations to the U.S. Code no longer require a date. Rule 12.3.2. This will help when citing the current version of the oft-amended Uniform Code of Military Justice. Practitioners can easily find the current edition of U.S. Code sections on the Office of the Law Revision Counsel’s website, currently updated through 8/8/2020.
The portion of the Bluebook’s Table 1 addressing citation of military appellate court decisions remains unchanged. The 21st edition continues to misidentify the old Lawyers Co-operative Publishing Company’s Court-Martial Reports as “Court Martial Reports.” And one curious omission remains. While providing citation styles for CAAF, CMA, the CCAs, the CMRs, and the Boards of Review, the Bluebook ignores the existence of the Court of Military Commission Review.
Disclaimer: The views expressed are my own and do not necessarily reflect those of DoD or anyone else.
NMCCA issued an authored opinion in the case of US v Lewis on 17 August. Appellant was convicted of three specifications of failure to obey a lawful order, one specification of sexual assault by causing bodily harm, one specification of indecent viewing, and one specification of assault consummated by a battery. On appeal, Appellant argued that his convictions for sexual assault, indecent viewing, and assault consummated by a battery were legally and factually insufficient.
On August 7, 2020, ACCA affirmed the conviction of Sergeant Danny E. Stanley. ACCA held that the military judge did not abuse his discretion when permitting an unsworn victim impact statement to be read at sentencing.
"The Supreme Court described the American military justice system, as it had existed for nearly two centuries from the founding of the nation through World War II, as “a rough form of justice emphasizing summary procedures, speedy convictions and stern penalties.” At that time, the Court believed that military law “emphasize[d] the iron hand of discipline more than it [did] the even scales of justice.”
Finding this situation unacceptable, in the early 1950s, Congress dramatically reformed the military justice system to ensure that the men and women who serve in the armed forces enjoy— to the extent possible given the needs of the military—the same constitutional and legal protections that our service members swear to defend. As part of those reforms, Congress enacted the Uniform Code of Military Justice and established an independent, civilian court—the Court of Military Appeals, now the U.S. Court of Appeals for the Armed Forces. Those actions demonstrated our country’s dedication to protecting the constitutional and due process rights of service members, while also maintaining the disciplined and effective operation of the military.
Today, the success of those reforms is obvious. The Supreme Court recently observed that the Court of Appeals for the Armed Forces functions much like any other American appellate court, reviewing criminal convictions without any suggestion that it is beholden to or under the influence of the military. The Court confirmed that military justice system’s essential character is “judicial.” If confirmed and appointed, I intend to continue that tradition of judicial independence and civilian oversight of the military justice system."
--Liam Hardy, 8/4/2020, Opening Statement, Nominations Hearing, Senate Armed Services Committee
Dateline: 14 August 2020
07082020—CAAF grants in White, No. 20-0231/NA
07082020--ACCA decides United States v. Stanley.
12082020—ACCA decides United States v. Bruner.
07082020—AFCCA decides—yes--United States v. Bruner and, United States v. Holder.
And, United States v. Rambharose.
This is a convoluted case decided by AFCCA for the third time.
CAAF remanded because of United States v. Hukill. AFCCA took additional action and remanded to the CA for a potential rehearing.
Will CAAF grant—case to watch for. There are several fairly recent cases about what a remand means and what actions the CA can take on remand.
07082020—NMCCA decides United States v. Schmidt in a published opinion. (Unfortunately, NMCCA is set up to prohibit cut-and-paste.) But,
Schmidt was convicted of one specification of sexual abuse of a child by masturbating in the child’s presence.
In the news—pending appellate cases.
The Omaha World-Herald (as well as other news outlets) is reporting.
U.S. v. Feeney-Clark, Army 20180694, July 20, 2020
No Remedy For AWOL Soldier Who Experienced Unreasonable Post-Trial Delay
Synopsis: Joseph-Feeney Clark is a soldier who was charged with absence of leave, however over 300 days elapsed between his sentence and the convening authority taking action. On appeal, Feeney-Clark argued that he was owed sentencing credit for the post-trial delay. Although the delay was unreasonable as it exceeded 120 days and the government provided no explanation for the delay, the Appellant had previously been granted sentencing credit that exceeded his sentence. The Court declined to provide the Appellant with a remedy and affirmed his conviction.
Appellant was convicted of one specification of attempted sexual assault of a child and two specifications of attempted sexual abuse of a child, in violation of Article 80, Uniform Code of Military Justice [UCMJ] , 10 U.S.C. § 80 (2012), for communicating indecent language to, and arranging to meet and have sex with a fictitious individual named “Sarah.” Appellant believed Sarah to be a 14-year-old female, but the individual with whom Appellant communicated was in fact an online persona portrayed by a special agent of the Air Force Office of Special Investigations. On appeal, Appellant asserts four assignments of error. The Court, addressing only the first two assignments, found no abuse of discretion and affirmed the decision.
 (1) The military judge abused his discretion when he denied in part a Defense motion to compel an expert consultant in forensic psychology; (2) the military judge abused his discretion when he denied a Defense motion to suppress a statement by Appellant under Military Rule of Evidence [Mil. R. Evid.] 404(b); (3) trial defense counsel was ineffective for waiving a potential defense of entrapment; and (4) Appellant's convictions are not legally or factually sufficient because the special agent with whom Appellant communicated did not provide an age or gender in the chat application profile used to communicate with Appellant, and sent him images that were in fact of adults.
CAAF announced today that it granted a new case for review on Friday. The case deals with the probable cause to support a search authorization. CAAF's jurisprudence on this narrow area of law is expanding rapidly. NMCCA opinion here. DJ text here:
"No. 20-0231/NA. U.S. v. Jerry R. White. CCA 201900221. On consideration of Appellant's petition for grant of review of the decision of the United States Navy-Marine Corps 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:
DID THE LOWER COURT ERR IN DETERMINING THE GOOD FAITH EXCEPTION APPLIED WHEN THE MILITARY JUDGE FOUND SO LITTLE INDICIA OF PROBABLE CAUSE EXISTED THAT NO REASONABLY WELL-TRAINED OFFICER WOULD RELY ON THE SEARCH AUTHORIZATION?"
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