In a recent unanimous opinion, the Supreme Court reversed the judgement of the CAAF and held that the prosecutions for rape of three military service members did not have to be commenced within five years of the date of the commission of the charged offenses.  The issue before the Court centered around the interpretation of the phrase “punishable by death” in the UCMJ. 
 
            During the relevant period, the UCMJ provided that the offense of rape could be “punished by death,” and that an offense “punishable by death” could be tried and punished “at any time without limitation.”  The government argued that “punishable by death” means capable of punishment by death under the penalty provisions of the UCMJ, and that respondents therefore could be tried for the rape offenses at any time.  Respondents argued, however—and the CAAF held—that the phrase “punishable by death” means capable of punishment by death when all applicable law is taken into account.  Respondents relied on the Supreme Court’s decision in Coker v. Georgia, 433 U. S. 584, 592 (1977), holding that the Eighth Amendment forbids a death sentence for the rape of an adult woman.  Respondents argued that, in view of Coker, they could not have been sentenced to death, and therefore the statute of limitations for their crimes was the 5-year statute of limitations governing non-capital offenses.
 
            Essentially, the dispute hinged on whether “punishable by death” was a term of art under the UCMJ that should be interpreted solely based on the provisions therein, or if instead the Court should look beyond the provisions of the UCMJ in determining whether respondents could have actually been punished by death for their offenses, taking into account relevant Supreme Court jurisprudence.  
 
            Notwithstanding the Court’s unanimous decision in support of the government, it acknowledged that there were “reasonable arguments on both sides,” yet “found the government’s interpretation” more persuasive for the following reasons:
 
            First, the Court found that the most natural source for the meaning of a statute of limitations within the UCMJ to be other law contained in the UCMJ itself.  It therefore determined that “[i]n the context of the UCMJ . . . Article 120’s directive that rape could be ‘punished by death’ is the most natural place to look for Congress’s answer to whether rape was ‘punishable by death’ within the meaning of Article 43(a).”
 
            Second, the Court stated that a principal benefit of statutes of limitations is to provide clarity, and that: “If ‘punishable by death’ in Article 43(a) means punishable by death under the penalty provisions of the UCMJ, the rule regarding the latest possible date for commencing a rape prosecution is clear . . . By contrast, if ‘punishable by death’ meant punishable by death after all applicable law is taken into account, the deadline for filing rape charges would be unclear.”
 
            Third and finally, the Court noted that the factors that lawmakers take into account when fixing the statute of limitations for a crime, such as the difficulty of assembling evidence and putting together a prosecution, “differ significantly from the considerations that underlie its Eighth Amendment decisions.”  The Court therefore reasoned that “it is unlikely that lawmakers would want to tie a statute of limitations to judicial interpretations of such provisions.”
 
            Justice Gorsuch filed a one-paragraph concurring opinion, stating that he “continue[s] to think this Court lacks jurisdiction to hear appeals directly from the CAAF.”  Nonetheless, he joined the Court’s opinion reversing the CAAF, noting that “a majority of the Court believes we have jurisdiction, and I agree with the Court’s decision on the merits.”  A future case might provide a vehicle for Justice Gorsuch to expound further on his jurisdictional concerns.

Hasan​'s case now proceeds to CAAF on direct review. 

LT Joshua Fiveson arguing US v. Upshaw, December 1, 2020. Sketch by ​Dana Verkouteren.

Over at GMJR, editor Gene Fidell makes his case: he compares the military justice system with a jurisdiction of comparable size (Kansas), noting that  Kansas's judges have a caseload of 194.4 per year, while military judges have a caseload of 20.75 per year.

Link here.

Analysis forthcoming. Here are Eugene Fidell's initial thoughts about the Gorsuch concurrence:

"Justice Neil Gorsuch concurred, while noting his continuing view that the Court lacks direct appellate jurisdiction over decisions of the Court of Appeals. He wryly cites an earlier case, Ortiz v. United States, in which Justice Alito had expressed the same view in dissent. If he stands his ground, the result will be that he will never vote to grant certiorari in a CAAF case. That means a petitioner (government or defense) will need to get four votes out of eight, rather than four out of nine, for a grant. Given the Solicitor General's higher certiorari batting average, this shoe will mostly pinch the accused. [Apologies for the mixed metaphor.] So cert just got even harder--a dollop of nasty icing on the current discriminatory cert statute."

The AFCCA affirmed the decision and sentence of Staff Sergeant Jesse Cool, finding no prejudicial error.

Cool opinion here.

The NMCCA affirmed the conviction and sentence of Quartermaster Third Class Kenneth Olaya, finding no prejudicial error.
​Olaya Opinion here.

"An investigative panel looking into violent crimes and abuse at the Fort Hood Army base in Texas said on Tuesday it found a command structure that was “permissive” of sexual assaults.

As a result, over a dozen commanders have been suspended or relieved and Army Secretary Ryan McCarthy said he expects to make widespread changes in light of the panel’s finding."

Link.

​Read the report here.

Editor's note: Tom Fricton notes below that the elimination of de novo factual sufficiency at the CCAs has now been approved by Congress's conference committee. This issue was discussed at length on here over the summer. See also here.

Update 12/8/2020: Trump's OMB has notified Congress that he intends to veto the NDAA.
​
On 3 December 2020 a conference committee of both houses of Congress reported out a version of the Mac Thornberry National Defense Authorization Act for Fiscal Year 2021, better known as the NDAA 2021.  The forty-five hundred page behemoth still needs to be voted on by both houses, and is still subject to presidential veto due to a shortage of votes in the house for a veto-proof majority. There are a number of issues that may impact military justice that bear notice if the bill becomes law.  Over the course of a few posts, these changes will be discussed.

​"No. 20-0366/AR. U.S. v. Thomas M. Adams. CCA 20130693. 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 2016 AMENDMENTS TO ARTICLE 43, UCMJ, RETROACTIVELY MADE THE STATUTE OF LIMITATIONS FIVE YEARS FOR INDECENT LIBERTIES AND SODOMY OFFENSES CHARGED UNDER ARTICLES 134 AND 125, UCMJ, RESPECTIVELY.
 
Briefs will be filed under Rule 25."

"Orders Granting Petition for Review
 
No. 20-0195/AR. U.S. v. Jeremy N. Navarette. CCA 20160786. 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 ARMY COURT ERRONEOUSLY DENIED APPELLANT'S REQUEST FOR A POST-TRIAL R.C.M. 706 INQUIRY BY REQUIRING A HEIGHTENED THRESHOLD SHOWING UNDER R.C.M. 1203.
 
Briefs will be filed under Rule 25.
 
No. 21-0017/AR. U.S. v. Clovis H. Castro. CCA 20190408. 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 MILITARY JUDGE ABUSED HIS DISCRETION IN ACCEPTING APPELLANT'S GUILTY PLEA TO SPECIFICATION 1 OF CHARGE II ("STEAL GAS, OF A VALUE LESS THAN $500, THE PROPERTY OF THE GENERAL SERVICES ADMINISTRATION").
 
Briefs will be filed under Rule 25.
 
No. 21-0040/AR. U.S. v. Leshan Jones. CCA 20190254. 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 specified 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."

        Christmas catalogues have been out for weeks and it is time to think of holiday gifts—a book you say.
 
My recommendations.
 
1. David Mellinkof, Conscience of a Lawyer.
 
2. Daniel J. Kornstein, Kill All the Lawyers: Shakespeare's Legal Appeal.
 
3. Dan Abrams, John Adams Under Fire: The Founding Father's Fight for Justice in the Boston Massacre Murder Trial.
 
4. Jay Wexler, The Odd Clauses: Understanding the Constitution Through Ten of its Most Curious Provisions. Senator Graham appears in one chapter. Who would have thought the Incompatibility Clause would arise in a court-martial appeal case. See United States v. Lane, 64 M.J. 1 (C.A.A.F. 2006).
 
5. Lewis Carroll, Alice’s Adventures in Wonderland (especially if you can get the Norton Critical Edition).
 
        Do you have a book or two to recommend?

 Dateline: 4 December 2020; a summary of the week. 
SUPREME COURT 

• The time to file a reply to the petition in Bess has been extended until 16 December 2020. 

​On December 1, 2020, CAAF heard oral arguments in United States v. Uribe, 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.

Uribe oral arguments and briefs here. ​

Today, ​CAAF will hear oral arguments in United States v. Harpole. Seaman Koda M. Harpole's case is based upon two assignments of error:
         (1) whether the victim advocate was required to advise Appellant of his rights under Article 31(b), UCMJ?; and
​        (2) whether the trial defense counsel was ineffective when they failed to move to suppress Appellant's statement to the victim advocate when such statement was taken in violation of Article 31(b), UCMJ?

Harpole briefs here.