Brubaker-Escobar is a post-trial issues case.
Upon the advice of the staff judge advocate, the convening authority applied the provisions of the Military Justice Act of 20161 (MJA) and took no action on the findings or sentence adjudged in Appellant’s court-martial. The United States Army Court of Criminal Appeals (CCA) determined that, in light of that court’s precedent, which relied on the President’s executive order in implementing the MJA, the convening authority’s failure to take action on the sentence was error but the error was neither jurisdictional nor prejudicial to Appellant’s substantial rights. The court affirmed the adjudged findings and sentence.
From the CAAF Desk.
United States v. Proctor, __ M.J. ___ (C.A.A.F. 2021)
In Proctor, the CAAF once again attempted to define the gray line of the appearance of unlawful command influence. Specifically, the Court focused on a story told by Appellant’s squadron commander at a commander’s call, highlighting the negative career impacts a military member could suffer for providing a character letter to an accused military member. The call was a week before preferral of charges, but after the he had decided to prefer charges. One year later, Appellant was convicted, receiving no character letters from the members of his squadron during the sentencing phase.
In a three to two decision, the CAAF found Appellant had satisfied his initial burden to establish “some evidence” of unlawful command influence, but “an objective, disinterested observer, fully informed of all the facts and circumstances, would not harbor a significant doubt about the fairness of the proceeding.”
‘Command influence is the mortal enemy of military justice.’ It strikes at the very heart of the system. Unlawful command influence undermines the integrity of the military justice system as well as of the commanders who are responsible for discipline within their units. Unlawful command influence has been a concern since World War I. Because of the number of post-World War II complaints concerning the issue, Congress responded with Articles 37 and 98, UCMJ, 10 USC § 837 and 898, respectively, which make command influence punishable under the Code.
United States v. Weasler, 43 M.J. 15, 16-17 (C.A.A.F. 1995) (internal citations omitted).
The Squadron Commander preferred charges against Appellant in June of 2017 that were withdrawn without prejudice on August 1, 2017. Six days later, at a prescheduled commander’s call, the Squadron Commander addressed various topics, including several NCOs’ misbehavior. He stressed the difference between supporting fellow military members and enabling them; and to demonstrate this difference, he told a story about a junior airman facing NJP who asked him to write a character statement on his behalf. The Squadron Commander refused to provide the letter because he believed his duty was to promote the good order and discipline of the unit, which the junior airman had undermined. Moreover, he suggested that his commander would have questioned his judgment had he provided the junior airman a letter, and the commander may not have sent him to military police investigator school. Though the Squadron Commander did not mention anyone by name or connect the story to any specific NCO misconduct, he testified that, among other incidents, he did have Appellant’s misbehavior in mind when telling the story.
The Defense filed a pretrial motion to dismiss all charges, alleging the appearance of unlawful command influence. Appellant called several members of the squadron to testify about the effect of the squadron leader’s story. Each witness understood the story in a different light. One suggested that the message was “support your fellow airmen, even if they are in trouble.” Another felt free to write a character letter for whomever he wished, though he might have felt differently if he intended to make the military a long-term career. And another left the meeting confused but believed he could cooperate with Appellant’s counsel and write a character letter on Appellant’s behalf without facing any repercussions.
Appellant’s court-martial occurred a year later. By this time, the Squadron Commander had changed duty stations. And no squadron member came to Appellant’s aid during the sentencing phase.
United States v. Bess. Those following the cert. petition with the U.S. Supreme Court previously reported here filed by Pedro Bess, a Black U.S. sailor challenging the secretive process of how panel members were selected where he was convicted by an all-white jury of sexual misconduct against white women. Many of us already argue that the convening authority has an unlimited number of peremptory challenges through the selection process so why should trial counsel have any at trial and the defense so few.
The informal survey of litigation experience is still open to contributions.
The link is here.
The higher the number of responses the better.
TODAY at 2:30 p.m. ET, Michel Paradis, senior attorney in the U.S. Department of Defense and lecturer at Columbia Law School, will join Scott Anderson, Lawfare senior editor, to take questions from the Lawfare community on his recent article, “Congress Demands Accountability for Service Members.” Sen. Kirsten Gillibrand recently introduced the “Military Justice Improvement and Increasing Prevention Act,” which aims to change the way the military handles sexual assault cases by removing the chain of command from the court martial process and is expected to be signed into law. How would the bill reform the military justice system? What issues should lawmakers consider as they finalize the legislation? You can register here "Save my Spot."
Missouri Court of Appeals--Western District
In Missouri v. Gilbert, the court says a jury verdict cannot be impeached when there is evidence the jurors held the accused's silence against him.
The court emphazised the limited exceptions in their state law making it only possible to have testimony about juror misconduct that happened outside the jury room or testimony about jury misconduct that occurred during deliberations where a juror makes statements evincing ethnic or religious bias or prejudice during deliberations.
Gilbert was trying to create a new court made exception for "improper consideration of a defendant's failure to testify in reaching its verdict." The Missouri court said it would not create this new exception.
In doing so, they referenced Pena-Rodriguez where the U.S. Supreme Court "warned that creating further exceptions to the general rule of jury impeachment could create havoc: “[t]o attempt to rid the jury of every irregularity of this sort would be to expose it to unrelenting scrutiny. It is not at all clear ... that the jury system would survive such efforts to perfect it.” Pena-Rodriguez at 868.
Mil. R. Evid. 606 is our guide barring impeachment, with three exceptions.
(A) extraneous prejudicial information was improperly brought to the members’ attention;
See, e.g., United States v. Robertson, 77 M.J. 518, 526 (A. F. Ct. Crim. App. 2017) aff’d in part rev’d in part on other grounds, 77 M.J. 365 (C.A.A.F. 2020) (the AFCCA found insufficient evidence to believe racial bias or animus influenced the trial members panel decision. Another case to consider is United States v. Leal, __ M.J. ___ (C.G. Ct. Crim. App. May 3, 2021), petition pending CAAF. In Leal, the issue became whether to senior member, an O-6, had influenced the enlisted members to vote for guilt. The CGCCA found insufficient evidence to overturn the conviction because of the senior member's alleged influence. In United States v. Schloff, , statements by the two senior (O-6) members lead to a new trial: "politically, the United States Army could not afford to seem weak on sexual harassment and assault[,] or "based on the political climate, the Army could not seem weak or soft in dealing with sexual harassment or assault."
Note that in Iowa v. Spates, the court said that "appellate review had to apply an objective not subjective standard[,]" when reviewing jury impeachment issues.
[W]hether to receive juror testimony and whether to grant a new trial—should be based on objective circumstances, e.g., what was said; how and when it was said; what was said and done before and after; whether and how the statements relate to evidence in the case; whether and how the statements relate to the issues the jury will decide when reaching a verdict. Conversely, neither determination should depend on the jurors’ subjective evaluations of their own motives—or the motives of other jurors—in voting to convict.
Michael Flynn's 'coup' comment shouldn't trigger a court-martial
"[C]ourts-martial don’t just prosecute conduct that would be constitutionally protected outside of the military; they also follow numerous procedures that the Supreme Court has invalidated in civilian courts. Among many other examples, a conviction in a court-martial requires the concurrence of only three-fourths of the “members” (who serve as jurors) even though the Supreme Court held just last year that the constitutional right to a unanimous verdict in civilian courts is “fundamental.”
These differences are a bug of the military justice system, not a feature. And arguments that we should subject retirees like Flynn to court-martial because of their lesser substantive and procedural protections have things entirely backward. As Justice Felix Frankfurter wrote in 1950, “It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people.” So too, here."
Old-Guard Senators Defy Changes in How Military Treats Sex Assault Cases
"Senator Kirsten Gillibrand has won broad backing for legislation that would cut out the military chain of command in such cases. Now she faces another big hurdle."
"This Friday, June 4, at 2:30 p.m. ET, Michel Paradis, senior attorney in the U.S. Department of Defense and lecturer at Columbia Law School, will join Scott Anderson, Lawfare senior editor, to take questions from the Lawfare community on his recent article, “Congress Demands Accountability for Service Members.” Sen. Kirsten Gillibrand recently introduced the “Military Justice Improvement and Increasing Prevention Act,” which aims to change the way the military handles sexual assault case by removing the chain of command from the court martial process and is expected to be signed into law. How would the bill reform the military justice system? What issues should lawmakers consider as they finalize the legislation?"
Over at Lawfire.
Editor's note: Prof. Dunlap marshals a list of commentators who oppose the reforms, perhaps giving a casual reader the impression of a united front. As anyone following this blog should know, there is no such consensus. The issue has sharply divided this community. At this point, though, there are 65 US Senators co-sponsoring the reform. The time for blogs and articles is over: our elected officials have made up their minds.
Yesterday, we cross-posted a piece I wrote for Articles of War examining the ways that military justice reform might affect law of war compliance. To summarize my basic point, by removing a commander's convening authority over all serious crimes, the current version of S.1520 will also (inadvertently) narrow field commanders' existing authority to "prevent or punish" war crimes committed by subordinates. And that power to "prevent or punish" has been a key feature of the U.S. approach to the "responsible" prong of the "responsible command" under which armed forces must operate to comply with international law.
Does removing convening authority violate international law? No. As I said in the piece, "Countries have different systems of military justice and some countries have no military justice system at all." But it would, by design, dilute commanders' ownership over their subordinates conduct. And as written, S.1520's revision to Article 22, combined with the UCMJ's broader prohibition on unlawful command influence, could perversely prohibit commanders from pressing for any particular subordinate's prosecution for war crimes.
Gene Fidell offered a well-sourced rejoinder to say that my concerns are largely unfounded. Though, starting with our point of agreement, he does agree that S.1520 should be amended to ensure that commanders can support prosecutions without running afoul of UCI prohibitions.
The point of our evident disagreement is whether removing the direct power to punish will undermine the commander's sense of accountability. Gene principally cites the training afforded to senior commanders on their LOAC obligations and the practices of other nations to say it will not. Some sources even suggest LOAC compliance could be enhanced.
I don't gainsay any of those. If anything, as I wrote, letting independent military prosecutors take the lead in war crimes cases may be preferable for all the reasons lawmakers have deemed it preferable for other serious crimes. But is equally true that when lines of accountability are shared, they can get blurry, and when they are blurry, accountability can become muddled.
As Phil Cave noted in a comment, the alleged victims of German military operations in Afghanistan have spent much of the past decade suing Germany because civilian prosecutors opted not to pursue charges. Germany has no military justice system, meaning that it fell to civilians to investigate and make prosecutorial decisions about the conduct of the German armed forces.
The European Court of Human Rights recently upheld the decision not to prosecute, but not because investigators had decisively concluded that the German military complied with the laws of armed conflict. Rather, the ECHR ruled that the investigation was adequate - even if flawed and inconclusive - because of the "special features" doctrine, which recognizes that a country's ability (and therefore obligation) to investigate is diminished by the circumstances of armed conflict. As Marko Milanovic wrote in EJIL:Talk! "the applicability of the [European Charter of Human Rights] Article 2 procedural obligation [to investigate] ... can be applied with significant flexibility on the merits."
Color me skeptical that this kind of "flexibility" when it comes to the rigor of war crimes investigations is a good thing. Again, that is not a challenge to S.1520's broader reform effort. But it is a reason for lawmakers to think about the unique problem of war crimes accountability with specificity. I offered a few ways to do that in my piece for Articles of War. I'm sure there are others. But whatever they are, lawmakers should ensure that commanders retain a credible power - and concomitant duty - to "prevent and punish" war crimes because the U.S. military's ability and willingness to enforce the law of armed conflict against its own (while not perfect) is a key feature of its legitimacy and effectiveness.
This is an update to an earlier post about a pending prosecution of a Canadian Reservist engaged, while in uniform, of some sort of political activity.
Rory Fowler, of Canada, friend and colleague, has this to report about a pending court-martial for what he terms "A slightly more surreal matter involves the charge of 'endeavouring to persuade another person to join a mutiny', (as well as 'scandalous conduct by an officer', against an OCdt of the CIC dating back to December 2020. This is noteworthy both due to the rarity that such a charge would be laid and the circumstances of the alleged misconduct."
(Some editing done and citations omitted.) A fuller explanation is here.
Today is the 70th Anniversary of the going into effect of the Uniform Code of Military Justice.
As we wrote last week, Wednesday was Chief Judge Stucky's final oral argument as chief judge, and as an active judge of the court. The Chief has been known to sit in the hottest seat of an already hot bench. What are your favorite Stucky Moments at oral argument? Mine is not a moment, but a repeat question:
"Which way does that cut?"
*fingers move back and forth like a metronome*
If time begins for us in 1950, this was said,
Although many questions in this area have now come to be settled, there has been much controversy throughout our history as to which provisions of the Constitution relate to the military and which are concerned only with civilian trials.
Ernest L. Langley, Military Justice and the Constitution--Improvements Offered by the New Uniform Code of Military Justice? MIL. L. REV. (Bicentennial Issue) Sept. 1975 at 77.
“[T]here has been substantial scholarly debate on applicability of the Bill of Rights to the American servicemember.” United States v. Graf, 35 M.J. 450, 460 (C.M.A. 1992), cert. denied, 510 U.S. 1085 (1994); see, e.g., Gordon D. Henderson, Courts-Martial and the Constitution: The Original Understanding, 71 Harv. L. Rev. 293 (1957); Frederick B. Wiener, Courts-Martial and the Constitution: The Original Practice pts. 1 & 2, 72 Harv. L. Rev. 1, 266 (1958). The Bill of Rights itself includes one exception for military justice cases: the Fifth Amendment’s grand jury provision does not apply to “cases arising in the land or naval forces, or in the Militia, when in actual service, in time of War, or public danger.” The Supreme Court has held that the Sixth Amendment’s right to trial by jury is similarly inapplicable to courts-martial. The Supreme Court has recognized the applicability of some other portions of the Bill of Rights to the military justice system, though that application is often different than that in a civilian context. It has reserved judgment on the applicability of some other Bill of Rights provisions.
Dwight H. Sullivan, The Bill of Rights' Application in the Military Justice System. The paper was originally written for presentation at the Joint Proceedings Panel.
Recently there has been an eruption of blog posts from opponents of the military justice reforms championed by Sen. Kirsten Gillibrand, Rep. Jackie Speier, and other federal legislators. Many of these are simply rehashes of things the same or other authors have argued in the past. As the Administration and Congress move from the still-unpublished recommendation of the Independent Review Commission appointed by Defense Secretary Lloyd Austin to taking a definitive stand on the pending proposals, a few basic points need to be kept in focus:
First, the numbers of sexual assault in the armed forces have essentially not budged despite past legislative initiatives and assurances from the service chiefs.
Second, the acquittal rate in sex-offense courts-martial is sky-high. Sending unwinnable cases to trial is unfair to everyone and detracts from public confidence in the administration of justice.
Third, one ally after another has removed from commanders the power to decide who shall be prosecuted for serious crimes. They have not done so to drive down the number of sex offenses; rather, they did it out of regard for the need for independent and impartial decision making in the administration of justice in the armed forces. And, a number of these changes arose before the prevalence of sexual assaults became a public issue. Commanders are neither independent nor impartial.
Fourth, 21st century Americans in and out of uniform recognize that prosecution decisions for serious and oftentimes complex criminal matters (as opposed to minor disciplinary offenses) are best made by persons with legal training.
As we observe Memorial Day, all Americans should be grateful to our military personnel. It is not enough to mouth the words "Thank you for your service." We should show our appreciation by ensuring that they will have the benefit of a state-of-the-art legal system that reflects contemporary values and in which they and we all can have confidence.
Fair seas and following winds to all. Brenner Fissell and Phil Cave.
Colorado Supreme Court
Colorado v. Johnson, No. 2021 CO 35, 396 P.3d ____ (2021), suggests an accused must make a Hobson's choice in some situations when he wants to testify, yet there is successfully suppressed evidence. There is the potential for impeachment with the suppressed evidence if the accused testifies. When advising an accused about testifying it is common to identify the value added beyond what is already in evidence and then balance that with any devaluation that might be caused through cross-examination or contradiction. Where there is suppressed evidence the defense becomes the gate-keeper.
So what about the situation where the core part of the defense may lead to trial counsel wanting to impeach or contradict with prior suppressed evidence?
Mil. R. Evid. 304(e)(1) and 311(c)(1) give a partial answer—but does the decision require a more sophisticated analysis? And what should a military judge do when she gets a defense motion-in-limine asking for a ruling about use of suppressed evidence on cross-examination (kick the can down the road) or when the case blows up? Danger, Will Robinson should you decide to testify!
Walder v. United States, 347 U.S. 62 (1954) and James v. Illinois, 493 U.S. 307 (1990), may help further to frame the issue for discussion which brings us Colorado v. Johnson, and the court's discussion of evidence rules and U.S. Supreme Court precedent. In summary,
In this opinion, the supreme court reviews a decision of a divided panel of the court of appeals holding that the trial court reversibly erred by forcing the defendant to choose between excluding unconstitutionally seized evidence and fully pursuing an alternate suspect theory at trial, thereby violating the defendant's right to present a complete defense. The supreme court holds that the impeachment exception to the exclusionary rule does not extend to a defendant's truthful, yet incomplete, presentation of evidence: A defendant may offer such evidence, under the particular circumstances here, without opening the door to previously suppressed evidence.
The court then
[C]oncludes that a defendant may offer truthful, albeit potentially incomplete, evidence without opening the door to previously suppressed evidence. This is because the important truth-seeking rationale that prohibits a defendant from turning the exclusion of illegally obtained evidence into a shield for perjury does not apply with equal force to truthful but potentially misleading testimony. Accordingly, we affirm the judgment of the court of appeals.
The dissent argues that, by its decision, the court creates a situation where an accused can exploit the exclusionary rule in an affirmatively misleading manner.
First, from Brian Cox: Measuring the Effectiveness of the Proposal to Divest Military Commanders of Disposition Authority for Sexual Assault Cases: A Comparative Quantitative Analysis
"This essay conducts a comparative quantitative analysis of four jurisdictions – Australia, the United Kingdom, Israel, and Canada – to determine whether vesting court-martial convening authority in lawyers rather than commanders has resulted in improved performance in selected criteria in relation to the issue of sexual assault in the military. The comparative quantitative analysis conducted in this essay indicates that there is no correlative relationship between the “reform” and the improved performance reformists hope to achieve, at least in the context of the jurisdictions examined. This lack of a demonstrated correlative relationship in other jurisdictions creates reason to doubt whether divesting commanders of the authority to convene courts-martial to adjudicate allegations of sexual assault would lead to improved performance related to sexual assault in the U.S. military."
Next, from Don Rehkopf over at Lawfire: CEREBRATING ABOUT MILITARY JUSTICE: Who Should Have the Authority to Convene Courts-Martial?
Many of the editors will be in court tomorrow for the final argument of the OT2020 term. Feel free to say hi, and to shake our hands--we're all vaccinated!
Tomorrow is the final day that Chief Judge Stucky will preside, after which he will pass the gavel to Judge Ohlson.
We may soon find out if that is the case in Canada.
A Canadian soldier is facing rare mutiny charges after allegedly urging fellow members of the armed forces not to help with the distribution of Covid-19 vaccines.
The Department of National Defence has announced charges against officer cadet LK, a reservist in Ontario. LK has been charged with “endeavoring to persuade another person to join in a mutiny” and “behaving in a scandalous manner unbecoming of an officer”, according to officials.
The charge of mutiny is rare in Canada and has not been used in decades.
Cross-posted with GMJR. Cheers, PC.
"Order Granting Petition for Review
No. 21-0219/AR. U.S. v. Conner B. Hiser. CCA 20190325. 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 HER DISCRETION BY ACCEPTING APPELLANT'S GUILTY PLEA TO A VIOLATION OF ARTICLE 117a, UCMJ, WHEN APPELLANT POSTED INTIMATE VIDEOS OF A PERSON UNDER CIRCUMSTANCES WHERE THE PERSON WAS NOT READILY IDENTIFIABLE AND THERE WAS NO REASONABLE CONNECTION TO THE MILITARY ENVIRONMENT.
Briefs will be filed under Rule 25."
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