"Petition for Grant of Review - Summary Disposition
No. 21-0107/AR. U.S. v. Nidal M. Hasan. CCA 20130781. Appellant's motion to dismiss the pro se petition for grant of review without prejudice is granted."
The D.C. Circuit heard arguments today in the military commission case of In re: Al-Tamir. A mandamus petition from the U.S. Court of Military Commission Review (CMCR), the alleged Al Qaeda operative asked the D.C. Circuit to vacate the proceedings against him due to the behind the scenes job searches of the judicial officers handling his case in Guantanamo. If that sounds familiar to longtime CAAFLog readers, it is because the issues with the Al-Tamir case arose after the D.C. Circuit set the clock back to 2014 in the long-running Al-Nashiri case, where largely identical issues came to light regarding the military judge presiding over that case (full disclosure, I was counsel for petitioner in the Al-Nashiri case).
Much of the days' argument, which ended up doubling the twenty minutes the court had originally allotted, focused on whether throwing Al-Tamir's case out entirely was appropriate given the facts of his case. The Circuit came close, but ultimately declined, to throw out the Al-Nashiri case in 2019, instead choosing to vacate only those proceedings that post-dated the military judge's application for employment in 2014. In Al-Tamir's case, ordering the same relief would effectively throw the case out as a whole because the military judge applied for the immigration judge job only a few weeks after the defendant was arraigned.
Because of that, the CMCR had tried to cut back on Al-Nashiri's remedy. Rather than setting back the clock, the CMCR said that Al-Tamir could seek reconsideration of any decisions the military judge issued during his tenure in the case. Hence, most of the argument today focused on whether reconsidering the tainted rulings was sufficient to remedy the military judge's ethical violations.
The second issue that dominated the morning's argument was a wrinkle not present in the Al-Nashiri case. In addition to the initial military judge in the case applying for jobs with the justice department, the long-serving legal advisor also had been applying for jobs around the government, including with the National Security Division (which, as it happened, argued the case today for the government). What was more, the legal advisor submitted a ruling issued in Al-Tamir's case as his writing sample a fact that had proven decisive in the Al-Nashiri case.
But the legal advisor is not technically the military judge, raising the question of what ethical rules actually govern. And so the Court spent a considerable amount of the time this morning trying to figure out whether the legal advisor was more like one of their clerks, who are generally permitted to search for employment within certain parameters, or more like a special master or magistrate judge, for whom the ethical rules regarding outside employment are far more exacting.
NO. 201900175, (N-M. Ct. Crim. App. Dec 11, 2020) (unpub. opinion)
On December 11, 2020, the Navy-Marine Corps Court of Criminal Appeals affirmed the findings and sentence of Appellant Vincent D. Taman. Appellant was convicted, contrary to pleas, by a general court-martial consisting of officer and enlisted members, of one charge of knowingly and wrongfully receiving and viewing child pornography and an additional charge of soliciting and advising the production of child pornography, both in violation of Article 134, Uniform Code of Military Justice (UCMJ). The convening authority approved the sentence consisting of confinement for six months and a bad-conduct discharge.
Editor's Note: Why no initials for the victim in this case?
A New York Times article about a sexual assault case at Columbia University demonstrates that the vexing issues surrounding the adjudication of these cases do not solely plague the military. A panel at the university found the student guilty of sexual assault, but after a federal lawsuit and settlement the student has now received a cash payment and his status at the university has been restored. Nevertheless, "In a statement, Columbia said that it had not withdrawn its findings against Mr. Feibleman...."
In this case, unlike in most, we have an audio recording of the events:
"They are talking about sex almost as soon as the tape begins. Her voice sounds drowsy, sometimes slightly slurred. When they are not whispering, his voice sounds clear and in control. He tells her that he wants her “so bad” but not “when you’re drunk.” She asks whether he finds her attractive, and he says she is “gorgeous.”
“Show me,” she says.
“Not tonight,” he says.
“In the morning, you’re going to thank me for leaving,” he says about eight minutes into the recording.
Minutes later, the tape takes a sudden turn in tone.
“Jesus Christ, OK — wait,” the woman says. “No. No. No. No. No. No. No. No, wait. No. What’s going on?”
Mr. Feibleman answers: “Um, you want me to have sex with you.”
Continuing to sound confused, she notices that she does not have any pants on and asks him, “Is that weird?”
He says she took them off.
“That sounds like a lie,” she says.
Soon after she says, “I need more information.”
Mr. Feibleman tells her what happened that night. She says she does not remember any of it.
At the end of the recording, as Mr. Feibleman is finally leaving, the woman says, “Please, please, Ben, I want you.” He asks her for a kiss good night and she says “No,” twice. He says good night, pets the cat on the way out, then signs off the audio saying, “That was a really dangerous situation.”"
SCOTUS has denied the petition for certiorari in Hennis. Link here.
UPDATED 1/11/21: Govt Brief Below.
Scholarship Saturday: The ability of appellate courts to reverse convictions that are factually insufficient keeps the military justice system respectable
In July 2019, the U.S. Navy-Marine Corps Court of Criminal Appeals (NMCCA) used its power to reverse convictions for factual insufficiency to overturn the trial court’s determination that Marine Colonel Daniel Wilson raped a subordinate’s six-year-old daughter. The NMCAA reasoned that inconsistencies in the child’s testimony rendered the evidence insufficient “to exclude every fair and rational hypothesis except that of guilt.” United States v. Wilson, No. 201800022 (N.M.C.C.A, July 1, 2019) at 53 (quoting the language used to describe the beyond a reasonable doubt standard in United States v. Loving, 41 M.J. 213, 281 (C.A.A.F. 1994)).
The decision in Wilson was immediately condemned by mainstream news outlets like ABC News and Newsweek, with the latter publishing a critique from Don Christensen, who was credited as being a “retired U.S. Air Force colonel and president of Protect Our Defenders”:
The decision is extremely disappointing and highlights the absurdity of the military justice system. Few if any civilian appellate courts have the ability to substitute their judgment for that of the trial court. The civilian justice systems understand that the persons who actually heard the witnesses testify are the only ones who should judge the credibility of witnesses, not appellate judges.
That assessment in the lay press eventually made it to a policy wonk publication that focuses on informing lawmakers and their staff: Congressional Quarterly’s Roll Call. In May 2020, Roll Call published an article commenting on the Wilson case that questioned whether the military Courts of Criminal Appeals ought to retain their factual sufficiency powers. The article was published under the headline: Victims’ lives turn on coming military sexual assault debate, and featured this assessment from former Deputy Assistant Secretary of State, and present-day pro-bono victim’s counsel, Mary Rose Hughes (who is also Of Counsel at the well-connected law firm, Perkins Coie):
The military system is remarkably different, but not in a way that advances the cause of justice.
Your hypothetical client was convicted of manslaughter and spent 10 years in the USDB. During one period of time, he was transferred for a 30-day period to a Marine Corps Brig in California. While there, he called a guard an "asshole," and the guard punched him in the face. Your hypothetical client's jaw was broken and $5,000 in medical expenses were incurred. He has now been released, and is domiciled and residing in New York. The punch occurred exactly one year prior.
How can you seek a remedy for Hypothetical Client in federal court for the punch? If not, why not?
This exercise reveals major shortcomings in current doctrine.
United States v. Cooper
No. 201500039 (N-M. Ct. Crim. App. 10 Dec. 2020)
In 2014, Appellant was convicted, contrary to his pleas, of three specifications of sexual assault and one specification of abusive sexual contact in violation of Article 120, UCMJ. In 2015, the Court ordered a DuBay hearing, in which the military judge found that Appellant’s trial defense counsel [TDC] was ineffective for failing to submit Appellant’s request for an Individual Military Counsel [IMC] who would have been reasonably available for his trial. Based on this finding, the Court set aside the findings and sentence and remanded the case for a new trial in 2018. However, the Judge Advocate General of the Navy then certified the case to CAAF asserting that Appellant waived his right to an IMC during a colloquy with the military judge. CAAF agreed that Appellant waived his right to an IMC and remanded to this Court to resolve the remaining issues.
Appellant formed an attorney-client relationship with Army National Guard CPT TN concerning the sexual assault investigation after they came to know each other in the Joint Task Force-Guantanamo Bay staff judge advocate’s office, where Appellant was assigned duties. However, Navy LT JB was detailed as Appellant’s TDC after charges were preferred. Appellant believed that LT JB’s representation of him at the Article 32 hearing had gone poorly and he wanted to request an IMC. During the DuBay hearing, LT JB testified that Appellant never requested CPT TN as an IMC and that CPT TN never told her he wanted to represent Appellant. CPT TN, however, testified that he did tell LT JB he had an attorney-client relationship with Appellant and wanted to represent him as his IMC. The DuBay Military judge found both witnesses credible, but ultimately found Appellant carried his burden to show he had told his TDC he wanted CPT TN for his IMC and that CPT TN was reasonable available.
At his arraignment, Appellant and his TDC had a colloquy with the military judge during which the judge asked TDC if any other counsel had been detailed or if IMC had been requested. LT JB answered, “No, sir.” The military judge went on to inform Appellant of his rights to counsel and to IMC, to which Appellant responded that he understood his rights, wanted to be represented by LT JB, and did not wish to be represented by any other counsel.
United States v. Lopez, No. ACM S32597 (A.F. Ct. Crim. App. Dec. 8, 2020)
On December 8, 2020, in an unpublished opinion, the AFCCA found that the convening authority failed to take action on the sentence of Senior Airman Catarino L. Lopez, Jr. (Appellant) as required by Executive Order 13,825 and the pre-2019 version of Article 60, UCMJ.
Mandatory Review Case Filed
No. 21-0107/AR. U.S. v. Nidal M. Hasan. CCA 20130781. Notice is given that a case requiring mandatory review of the decision of the United States Army Court of Criminal Appeals in which the affirmed sentence extends to death was filed under Rule 23 on this date. Appellant will file a brief under Rule 23(b) on or before the 1st day of March, 2021.
Editor's note: A friend wonders why this is already at CAAF when the reconsideration period is not over with.
No. 21-0025/AF. U.S. v. Matthew C. Harrington. CCA 2020-02. 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:
APPELLANT'S CONVICTION WAS SET ASIDE DUE TO THE ORIGINAL TRIAL JUDGE'S FAILURE TO ALLOW THE DEFENSE TO INTRODUCE EXCULPATORY EVIDENCE ABOUT THE COMPLAINING WITNESS'S BEHAVIOR RIGHT BEFORE THE ALLEGED SEXUAL ASSAULT. THE EXCULPATORY EVIDENCE IS NO LONGER AVAILABLE AFTER A GOVERNMENT DELAY IN BRINGING THE CASE TO A REHEARING. DID THE AIR FORCE COURT ERR BY OVERRULING THE MILITARY JUDGE'S DECISION TO DISMISS THE CHARGE FOR A SPEEDY TRIAL VIOLATION?
Pursuant to C.A.A.F. R. 19(a)(7)(A), no further pleadings will be filed.
Here is a link to the CAAF annual report—1 October 2019 to 30 September 2020.
The AFCCA released its unanimous opinion in United States v. Bonior, siding with the government and affirming the sentence in its entirety.
Bonior opinion here.
How often are retirees prosecuted? Intern LT Chris Clifton did a deep dive in Westlaw and determined that around 30 retiree prosecutions have resulted in appellate opinions since the beginning of the database's recordkeeping. It seems like this practice, while rare, has become more common in the last decade.
The old FS is gone, along with 2020. Here is the new standard:
``(B) Factual sufficiency review.--(i) In an appeal of a
finding of guilty under subsection (b), the Court may consider
whether the finding is correct in fact upon request of the
accused if the accused makes a specific showing of a deficiency
(ii) After an accused has made such a showing, the Court
may weigh the evidence and determine controverted questions of
fact subject to--
(I) appropriate deference to the fact that the trial
court saw and heard the witnesses and other evidence; and
(II) appropriate deference to findings of fact
entered into the record by the military judge.
(iii) If, as a result of the review conducted under
clause (ii), the Court is clearly convinced that the finding of
guilty was against the weight of the evidence, the Court may
dismiss, set aside, or modify the finding, or affirm a lesser
A number of questions will need to be answered by the courts interpreting this provision for the first time.
1. What is a "specific showing of a deficiency"? Will this be a pro forma step? Presumably the accused's claim of innocence is sufficient to meet this bar?
2. What is "appropriate deference"? Regarding credibility determinations (section (I)), "appropriate deference" in other courts means total deference--is that what this means? What is "appropriate deference" for non-credibility findings (section (II))? Isn't all this subsumed in the eventual "clearly convinced" analysis anyway?
3. Is "clearly convinced" here the same as the "clear error" standard for federal district courts? See Fed. R. Civ. P. 52(a)(6); United States v. Cazares, 121 F.3d 1241, 1245 (9th Cir. 1997) (standard applied in both civil and criminal proceedings). I don't think so--clear and convincing is its own term of art. United States v. Martin, 56 M.J. 97, 103–04 (C.A.A.F. 2001) ("Clear and convincing evidence is that weight of proof which “produce[s] in the mind of the factfinder a ‘firm belief or conviction’ that the allegations in question are true.” Clifford S. Fishman, Jones on Evidence: Civil and Criminal § 3:10 (7th ed.1992)"). Is "clearly convinced" the same as "clear and convincing," though? One hopes so--otherwise Congress is asking the courts to make up a new evidentiary standard.
It’s been a little over 9 years since the Sundance Institute decided to fund production of The Invisible War, a documentary film by Kirby Dick concerning sexual assault in the U.S. military. The Invisible War ended up winning the Audience Award at the 2012 Sundance Film Festival (as well as other awards), but its greatest impact was felt in the nation’s capital. Pre-release screenings of the film were held for members of Congress, their staff, and senior Pentagon leaders.
With the release of The Invisible War, the military establishment was called to a reckoning for its perceived inability to appropriately handle sexual assault. That campaign of scrutiny, driven by data that has, at times, tended to be more anecdotal than empirical (discussed in detail in this column, here), has prompted a dramatic erosion of command authority. Secretary of Defense Leon Panetta’s 2013 decision to deny junior officers the authority to dispose of sexual assault cases was a reaction to having recently viewed The Invisible War.
That contraction of command authority is still in place, but it was only the beginning. Later that year, Congress enacted Section 1702 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2014 (Public Law 113-66), thereby gutting the efficacy of Article 32 pretrial investigations while simultaneously sapping commanders of their authority under Article 60 to grant clemency in any serious case, not just sexual assault cases. That expulsion of command from the post-trial process was made complete by Title LIX of the NDAA for FY 2017, which has made commanders mere surplusage in the post-trial process for serious offenses.
These dramatic raids executed against command authority in the military justice system have invited a wholesale reexamination of the foundations of the military justice system. Command authority over the military justice system has never sat well, but that is not the only feature of the system that has been in tension with the American sense of justice. As the Congressional Research Service commented only a few months ago:
A perennial concern has been the perception of a lack of complete judicial independence, as well as commander’s control over courts-martial, in part by choosing which charges to prefer against whom and by exercising post-trial clemency.
Report R46503, Military Courts-Martial Under the Military Justice Act of 2016, Congressional Research Service (August 28, 2020) at 1.
In our eagerness drive commanders out of the handling of sexual assault cases, we have awoken skepticism towards the military justice system at large. The system now stands to be overrun by inequities “older and fouler” than injustice in one class of cases.
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.