Greetings and we at CAAFlog wish you a Happy, Healthy, and Successful New Year.
In doing so, we wish to publicly thank all of the support engineers in the boiler-room who help bring the military law news to you. They are each young and enthusiastic. Many of them will become judge advocates when they graduate, so you will 'meet' them again.
We will leave you with a traditional blessing that you have 'fair winds and following seas.'
What's with the dramatic reduction in petitions filed in the last four years?
1. The End of Factual Sufficiency Review by CCAs
A somewhat unique fixture of appellate review in military justice will be coming to an end thanks to the NDAA passed by Congress (vetoed by the President, but this will soon be overridden). De novo review of the weight of the evidence to support a conviction—called “factual sufficiency”—will no longer be permissible.
2. Pandemic Practice
This year will forever be remembered for the Coronavirus Pandemic. Courts were shut down and cases were postponed. Later in the year, CAAF adapted and held in-person arguments with extensive precautions. This year has changed the way that many lawyers practice, and has broken down old patterns thought to be necessary. For example, tens of thousands of lawyers have worked from home for months with less impediment to their productivity than many may have imagined. “Zoom Court” is now a fixture in most jurisdictions. Perhaps we will see more generous teleworking policies for federal employees and uniformed lawyers as well.
3. The Resolution (?) of the Bergdahl case
The Bergdahl case carries little significance for the development of the law—the facts are quite unique, and apparent UCI is no longer a valid claim. However, Bergdahl is perhaps the most well-known military justice case in the last 20 years, involving multiple Presidents, Guantanamo detainees, and a Serial Podcast. The direct review of SGT Bergdahl’s convictions ended with a sharply divided opinion rejecting his apparent UCI claim. As I have argued, I believe this should have come out the other way. The lack of prejudice to the case’s outcome should not have been central to the analysis of apparent UCI, but it was. The case is now proceeding as a writ on the basis of newly-discovered facts about the trial judge.
4. The Machinery of Death Lumbers On – Hennis & Hasan
In 2015, with a Hillary Clinton victory seemingly inevitable (and leading progressives around that time calling for a wholesale reform of constitutional law), Justices Breyer and Ginsberg penned a dissent in Glossip v. Gross arguing that the death penalty itself was per se unconstitutional. One had a sense that death penalty litigation, already an arcane practice, would be coming to an end—that Dwight Sullivan and Jonathan Potter would go from giving CLE talks to giving history lectures. Of course, that is not what happened. The year of 2020 reminded us that the death penalty is alive and well in military justice. ACCA recently affirmed the Hasan case (the Fort Hood shooter) after a lengthy delay, and just before the start of the Pandemic CAAF affirmed the death sentence of Timothy Hennis. The Supreme Court will confer regarding Hennis’s petition for cert next Friday.
5. A SCOTUS Case – Briggs
It is notable whenever SCOTUS grants review of a military justice case, and therefore the recently-released Briggs opinion is one of the top stories of the year. The question presented was an issue of statutory interpretation affecting the relevant statute of limitations for adult rape. The Court’s opinion put an end to a saga in which CAAF struggled with the question and reversed its prior position. Perhaps most significant for the future is Justice Gorsuch’s concurrence, which indicates that he does not believe that SCOTUS direct review of CAAF is constitutional. This is significant more, I think, in that the concurrence failed to gain even a single additional vote. Direct review is constitutionally secure (sorry Prof. Bamzai).
6. Retiree Issues (Begani and Larrabee)
The constitutionality of jurisdiction over retirees and reservists became a hot issue in the latter part of the year. The DC District Court held in the Larrabee case that Congress’s jurisdictional scheme covering Fleet Reservists was unconstitutional in that these reservists were not part of the “Land and Naval Forces” (thus, an Article I violation). The court’s opinion, read broadly, would cover all retirees, but one senses that this was not what was intended. CAAF will now weigh in on this issue as well in the Begani case, which will be argued early next year. The court will also consider an Equal Protection claim in that case regarding the disparate treatment of different classes of retirees. In my view (not universally shared) Congress should clean up this irrational vestige before the courts do the cleaning themselves.
7. A New CAAF Judge
Judge Ryan retired in August, and her seat was filled last month by Judge Hardy. The impact of this on the development of the law is, at this stage, unclear.
8. Limiting the Good Faith Exception--White
The Supreme Court’s creation and expansion of the “good faith exception” to the exclusionary rule makes it difficult for a defendant/accused to vindicate his or her Fourth Amendment rights even when a violation occurs. See, e.g., Herring v. United States, 555 U.S. 135 (2009). Many circuits, following the lead of SCOTUS, routinely slap down claims to exclude evidence on the basis of the exception. It is therefore notable when a circuit-level jurisdiction chooses to read the exception narrowly and add back some teeth to the Fourth Amendment. CAAF did this unanimously in White, holding that there was insufficient probable cause for the issuance of a warrant/search authorization under the Gates test—even when applying the higher bar of the good faith exception. While one commenter here said that the court is unprotective of Fourth Amendment rights, this opinion should disabuse him/her (tread lightly, Poster).
9. Protecting the Right to Counsel of Choice--Watkins
In Watkins, CAAF held that a civilian defense counsel had a conflict of interest once counsel detected an “insinuation, at least from his perspective, that somehow he was complicit in assisting [the] Appellant and his wife in avoiding service of process.” Watkins at *3. The Accused then expressed that he wanted the civilian counsel dropped from the representation, but the trial judge refused. In rebuking that decision, CAAF further demonstrated that it is supportive of the right to counsel of one’s choosing, in line with other cases such as Hale 78 M.J. 268 (CAAF 2019).
10. Tell us below what you would add.
A delayed entry 29 December 2020—a summary of a bit more than a week.
Sorry, cannot resist a FB lawyer joke I received on Xmas Eve--
Other humour not in uniform.
No this is not about the election or politics it is a reminder to us all that editing, and proofreading can be impertinent.
“A lawyer who filed a lawsuit challenging Georgia’s election process is attracting attention because of a typo near the end of the complaint.
The verification paragraph said the lawyer verifies “under plentyof perjury” that the facts in the suit are true and correct. The phrase should read “under penalty of perjury.”
In United States v. Briggs, 2020 U.S. Lexis 5989, the Supreme Court of the United States overruled the Court of Appeals for the Armed Forces (CAAF), holding that offenses punishable by death under the Uniform Code of Military Justice (UCMJ), including the offense of rape, have no period of limitations pursuant to Article 43, subsection (a), as it existed between 1986 and October 1, 2007. For reasons stated below, this decision may not be the last word on the interplay between Article 43’s periods of limitations and sex offenses.
"An active-duty Special Forces soldier has been charged with murder after three people were killed and three wounded in a shooting Saturday at a bowling alley in Rockford, Illinois, authorities said Sunday."
It appears the defendant has been charged by Illinois (where the death penalty has been abolished), and that the Army is only cooperating in the investigation.
Congratulations to the following winners:
1. Best Brief: The Navy Government team in Upshaw.
2. Best Oral Argument: LT Joshua Fiveson in Upshaw.
On Monday, December 21, 2020, SGT Bergdahl filed the following petition with CAAF:
"No. 21-0091/AR. Robert B. Bergdahl, Appellant v. United States, Appellee. CCA 20200588. Notice is given that a writ-appeal petition for review of the decision of the United States Army Court of Criminal Appeals on application for extraordinary relief and action on the petition for writ of error coram nobis was filed under Rule 27(b) on this date."
Updated 12/28/20 with brief below.
Elizabeth M. Berecin
The nominations are in--here are the top three in each category: Best Brief and Best Oral Argument. Vote now!
On December 9, 2020, CAAF issued their opinion in United States v. Garcia. The focal point of CAAF’s opinion, is not their decision to affirm the AFCCA’s ruling, rather it is their scathing reprimand of the Government’s conduct. The Court opens with the following:
“It is repugnant to the purpose and principles of the Fourth Amendment for an agent of the government to ‘knowingly and intentionally, or with reckless disregard for the truth’ include in an affidavit false information that is material to a search authorization request, or to make material omissions ‘that are de-signed to mislead, or that are made in reckless disregard of whether they would mislead, the magistrate.’… And yet, the Governments troubling conduct in the instant case compels this Court to underscore this essential point from the outset of this opinion”
Garcia opinion here.
The AFCCA dismissed with prejudice the conviction Staff Sergeant Clayton E. Turner (Appellant) for one specification of assault consummated by a battery, finding the evidence to be factually insufficient. The Court affirmed the convictions of four other specifications of assault consummated by a battery.
"No. 21-0030/AF. U.S. v. Kalab D. Willman. CCA 39642. 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 WHEN IT RULED THAT IT COULD NOT CONSIDER EVIDENCE OUTSIDE THE RECORD TO DETERMINE SENTENCE APPROPRIATENESS UNDER ARTICLE 66(c).
Briefs will be filed under Rule 25."
Elizabeth M. Berecin
"'We don't know what he might do,' says one officer in the Pentagon. 'We are in strange times,' says another officer. Some senior military officers are trying to steer clear of the White House for the next month, rather than be in the President Donald Trump's orbit.
With just some 30 days to go before the US military watches its current commander in chief leave office, there is growing anxiety in the ranks about what Trump might do in these remaining days. Will the President order some unexpected military action, such as a strike on Iran, or will he somehow draw the military into his efforts to overthrow the election results? ...
No military official CNN has spoken with recalls a recent time prior to Trump when top serving officials had to send the message they cannot get involved in election results. Let alone put out multiple messages to that effect."
I for one really enjoyed and learned from Zeke's Scholarship Saturday posts. Look for more and also what I remember as excellent discussions following the posts.
Report here, with commentary by Isaac Kennen below. Here is the Report's conclusion on military justice data:
"Conclusion on Military Justice Data
As early as 1974, the DAF identified racial disparity in military justice actions. AFJAG is aware of the racial disparity in Article 15 actions and courts-martial and informs leadership at all levels of this disparity. Also, AFJAG analyzed the military judicial process to address the potential of racial bias. In 2016, the DAF determined there was no evidence of selective prosecution in courts-martial based on a review of courts-martial records under the guidelines set in the Supreme Court case Batson v. Kentucky6 The DAF also found no disparity among conviction rates between black and white service members. Based on the available data, this Review found no instances of intentional racial bias or discrimination after an accused entered the court-martial process.
While the DAF has taken some action to address potential bias in the judicial process, it has not answered that next-level question of “why” racial disparity exists in military justice actions. AFJAG provides training to commanders highlighting that racial disparity exists; however, no training is provided on what causes the racial disparity and how to address the disparity. For more subjective cases such as AWOL or dereliction of duty, where the commander has discretion to impose disciplinary action and the severity of that disciplinary action, the DAF has not analyzed why racial disparity is present. This Review included interviews with members of the Disciplinary Actions Analysis Team (DAAT), which was established in 2017 to address racial disparity in military justice actions. These interviews revealed the DAAT, after meeting more than three years, was unable to ascertain the reason for such disparity. For more objective cases, such as marijuana drug use cases arising from random testing, this Review determined behavioral disparity accounts for at least some disparity indicated. However, the DAF must conduct further review to understand why there may be behavioral disparity among racial groups and how to address that behavioral disparity. Multiple studies show certain racial and age groups view marijuana use differently resulting in disparate use among those groups. (Ex 57) As of this Review, it appears the DAF has not examined these studies and considered how this behavioral disparity among its youngest enlisted members might be addressed."
On Wednesday, December 16, 2020, CAAF granted review on the following petition:
"No. 21-0062/AR. U.S. v. Fernando Quinones-Colon, Jr. CCA 20200093. 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"
Elizabeth M. Berecin
The pandemic has exacerbated several existing problems at Guantanamo Bay, as Carol Rosenberg reported in Friday’s New York Times. Among these is the perennial difficulty of finding qualified judges to preside over the Military Commissions.
This week’s events demonstrate how acute the difficulty has become. On Monday, 14 December, the Military Commissions’ Chief Judge, Col. Douglas K. Watkins, USAR, JAGC, issued an order re-detailing himself to the case after determining that the current judge, LtC. Matthew N. McCall, USAF, JAGC, lacked the experiential qualifications to serve. On Friday, 18 December, Khalid Sheikh Mohammed filed a motion to stay Col. Watkins’ order, setting the stage for litigation over LtC. McCall’s qualifications.
CAAF released their opinion in United States v. White, siding with the Appellant and reversing the NMCCA's application of the good faith exception in M.R.E 311(c)(3).
White opinion here.
Dateline: 18 December 2020; a summary of the week.
On 15 December 1791
“Following ratification by the state of Virginia, the first 10 amendments to the U.S. Constitution, known collectively as the Bill of Rights, become the law of the land.”
Letter to the Editor: SPC Vanessa Guillen’s death had nothing to do with sexual harassment or sexual assault – so how did #IAmVanessaGuillen become the military’s #MeToo?
As 2020 wraps up and the editors begin working on the "Top 10 MJ Stories of 2020," we are also soliciting nominations for the best brief at CAAF this year and also the best oral argument. After one week (next Monday), we will post the top three of each category and open voting to all readers. The editors will also choose their favorites of the top three in each category.
Submit a nomination (anonymously) here.
The AFCCA affirmed the findings and sentence of Technical Sergeant Soren G. Gere (Appellant), finding no error to be materially prejudicial.
Much of the discussion here focuses on lawyers and judges in the military criminal justice system, but this leaves out a hugely important group of actors: the police. For example, it seems like a half-hearted measure to tweak factual sufficiency appellate review when the fact-development on the crime scene itself is botched from the start. With this in mind, consider this new article, with whistleblowers, from Army Times: Army CID is burned out and mismanaged by military police leadership, special agents say
CAAFlog 1.0 Archive
-Current Term Opinions
Joint R. App. Pro.
Global MJ Reform
LOC Mil. Law Resources