A new student note in the Texas Law Review critiques the standard of review for the collateral review of court-martial convictions.
Clara Crenshaw, Habeas Review of Courts-Martial: Revisiting the Burns Standard, 99 Tex. L. Rev.
"The 1953 Supreme Court decision Burns v. Wilson, which articulated the standard of review for military habeas corpus petitions, has left the legal community unashamedly confused. While there was no majority opinion, the standard of review advanced by the plurality has largely been taken as the rule emanating from the Court. Accordingly, the test for determining if habeas review is appropriate is whether the military court has given “full and fair consideration” to the claims. Circuit courts of appeal have struggled ever since this decision to configure exactly what “full and fair consideration” means, resulting in many different approaches.
This Note argues that, based on historical analyses and legal developments, a modified version of the Fifth Circuit’s four-prong inquiry in Calley v. Callaway would be a satisfactory solution to the current confusion. This new standard would open the door to many more successful military habeas petitions, while at the same time protecting the distinctive nature of military law. It would do this by properly differentiating between military factual and legal determinations. Factual determinations would be brought in line with civilian habeas, while the military’s special policy needs would be considered in legal determinations. More importantly, however, it would provide a cohesive standard across jurisdictions. The strength of a military prisoner’s habeas petition should not be based upon where he or she is incarcerated."
Scholarship Saturday: Focus on ethics to restore public confidence in commanders and judge advocates
A few months ago, in Scholarship Saturday: We hear drums, drums in the deep, this column explored the ways that the sexual assault conundrum has invited scrutiny towards the military justice enterprise in toto. As that article explained, the result of that scrutiny has been a profound weakening of the power of commanders and judge advocates to prevent and correct wrongful court-martial convictions. Specifically, military commanders have been stripped of their ability to test evidence prior to trial through Article 32 investigations, and their ability to correct errors post-trial has likewise been dismantled. Additionally, as this column discussed in a follow-up article, constraints have been imposed on the power of the ad interim judges (née military lawyers) of the military courts of criminal appeals to remedy erroneous convictions on appeal.
These changes were spurred forth by long-standing and persistent Congressional and Presidential chastisement, enthusiastic plaintiff’s lawyers, and blistering critiques from public interest groups seeking both systemic change and a means by which military sexual trauma victims might sue the government for damages. This effort has left court-martial panels as the primary guarantor of justice for accused servicemembers in all court-martial proceedings, not just sexual assault cases. Relying so heavily on court-martial panels to do justice is a practice fraught with peril. First, under Article 25(e), rather than a trial by peers, a court-martial panel is made up entirely of the accused’s superiors and, rather than being picked impartially, those superiors are hand-selected by the prosecuting authority. This naturally gives rise to a concern that the members might feel inappropriate pressure, real or imagined, to reach a conviction on the command’s allegations. This concern is deepened by the fact that, as this column recently discussed, the latest defense funding act included language designed to make it harder for the lawyers sitting on military appellate courts to reverse court-martial panels that appear to have been improperly influenced by commanders.
That inherent conflict of interest suffered by every court-martial panel when they walk into the court-room is only a prologue to the constitutional deficits they suffer when they enter deliberations according to the Supreme Court’s decisions in Ballew, Burch, and Ramos. In sum, perusing those cases leads naturally to the conclusion that, under the Fifth Amendment, court-martial panels are manifestly too small to engage in reliable deliberations, are (if Ramos is correct) perhaps especially likely to disregard the dissent of racial and sexual minorities on the panel, and those infirmities are made all the worse by the fact that their verdicts are not required to be unanimous. These deficits make court-martial panels a particularly poor underwriter of liberty. And, that deficit does not even account for the fact that the military accused is not afforded a trial before a true judicial officer – instead, they must settle for a military lawyer detailed ad interim as a military judge by the same Judge Advocate General who is responsible for the prosecutors.
The common thread that runs throughout the narrative above is trust. Right or wrong, and despite the inherent infirmities, the public has demonstrated, through its elected officials, that it trusts the everyday Soldiers, Sailors, Marines, Airmen, Guardians, and Coastguardsmen who make up military court-martial panels. And, just the same, the public has demonstrated a loss of confidence in commanders and the lawyers who advise them.
Commanders and judge advocates will continue to bleed authority until they repair the trust it relies upon. A recent article published in the Hofstra Law Review by Ohio State University Moritz College of Law Professor Dakota S. Rudesill entitled, “At the Elbow and Under Pressure: Legal, Military, and Intelligence Professionals,” posits that it will take both commanders and lawyers, acting in concert, to get that done. Below the break, Professor Rudesill proposes a plan of action:
NMCCA released its per curiam opinion in United States v. MacWhinnie, siding with the government and affirming the conviction and sentence.
MacWhinnie opinion here.
United States v. Moratalla—WHETHER THE APPELLANT'S GUILTY PLEA TO BANK FRAUD UNDER 18 U.S.C. §1344 WAS IMPROVIDENT.
United States v. Turner--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), UCMJ.
United States v. Davenport—WHETHER THE CONVENING AUTHORITY'S FAILURE TO TAKE ACTION ON THE SENTENCE DEPRIVED THE ARMY COURT OF JURISDICTION UNDER ARTICLE 66, UCMJ.
United States v. Brubaker-Escobar--WHETHER SECTION 6(b) OF EXECUTIVE ORDER 13,825 OF MARCH 1, 2018 WAS A LAWFUL EXERCISE OF THE AUTHORITY DELEGATED TO THE PRESIDENT BY SECTION 5542(c)(1) OF THE NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2017 OR BY ANY OTHER LAW. (This is an unusual event for CAAF to specify new issues post oral argument.)
United States v. Brown., 80 M.J. ___ (A. Ct. Crim. App. 2021).
The court applies the “familiar Moreno due process analysis” And ,
We recognize this opinion deviates from the plain language of Moreno. However, we cleave as closely as possible to the language of that opinion, applying the timelines of Moreno to the remaining post-trial processing guideposts in the new legal landscape, and maintaining the fundamental precept that "convicted servicemembers have a due process right to timely review and appeal of court martial convictions." Moreno, 63 M.J. at 129 (citing Toohey, 60 M.J. at 101).
United States v. Hertel. A post-trial error case. This case demonstrates some of the issues that can arise when the convening authority is acting on requests to waive and defer forfeitures.
United States v. Williams. Enlisted members convicted Appellant of one sexual assault for which he was sent to the Brig for three months and given a duck dinner. There are four AOEs and two Grosty’s. Issues 2 and 4 are the most interesting: admission of evidence from his prior court-martial acquittal (not that rare an issue) and a denial of due process when the prosecution changed its theory of guilt mid-trial (not that rare of an issue.
“The military judge’s ruling in this instance does give us pause, as it provides little indication of the careful and thorough Mil. R. Evid. 403 analysis required in analyzing evidence proffered for admission under Mil. R. Evid. 413, an analysis of a constitutional dimension. See James, 63 M.J. at 222; Wright, 53 M.J. at 483. Because the evidence the Government sought to admit resulted in acquittal, that fact required “great sensitivity” in determining whether the evidence should be allowed. See Griggs, 51 M.J. at 420. If the military judge did give this issue the required degree of consideration, such is not evident from his ruling, as the military judge provided only broad and conclusory statements, stating, for example, he was “satisfied that the strength of proof is sufficient on this evidence” without any further explanation. At least one of the military judge’s findings of fact—that AW was “extremely intoxicated”—was not just unsupported by the record, but at odds with the evidence presented, thereby amounting to clear error. We are also unclear how the military judge concluded a closet without a door in an on-base club where a party was underway amounted to “a private location.” As a result, we give the military judge’s conclusions of law minimal deference. See Berry, 61 M.J. at 96.
But the court found no judicial error in admitting the evidence.
2. Prior to trial, the Defense submitted a motion in limine asking the military judge to bar trial counsel from advancing any argument or theory that AM could not consent based upon either her being incapacitated due to her alcohol consumption or that she was asleep, unconscious, or otherwise unaware that she was participating in sexual conduct with Appellant. The military judge denied the motion, explaining the Government had to prove AM did not consent, and this would require “examination and consideration of all the facts and circumstances,” including AM’s level of intoxication, which the military judge concluded amounted to evidence of whether or not AM “effectively consented.”
For me, this case shows why Congress created more confusion by adopting four theories of criminality under Article 120; a situation needing only two—one of general application and one more specific to medical and mental health providers.
PENDING APPELLATE CASES
United States v. Injerd. The appellant was “convicted of desertion, resisting apprehension, assault of a superior noncommissioned officer, failure to obey an order or regulation, carrying a concealed weapon, assault upon law enforcement and two counts of disorderly conduct.” And he has been sentenced to 30 months confinement; and a duck dinner?
United States v. Juda. The appellant has plead guilty to use and distribution of LSD and his sentence included a Big Chicken Dinner.
WORTH THE READ
VanLandingham & Corn,What Happens when Service-Members, Past or Present, Breach their Sacred Oath? 18 March 2021, American Const. Society. Discusses Larabee and Begani.
LTC Daniel D. Maurer, Is Demilitarizing Military Justice an Ethical Imperative for Congress, the Courts, and the Commander-in-Chief? 49 HOFSTRA L. REV. x (2021).
This symposium introduction to ethics in military justice highlights that professional responsibility norms, expectations, and problems impact and imperial this discipline just as they do in any other criminal justice system. But in such a dizzyingly specialized criminal justice schema, the problems and perils of legal ethics and professional responsibility are both heightened and clouded by their seemingly difficult remoteness. Because the context of military justice implicates—to various degrees—national security, and not just individual cases and individual parties, special attention is owed in several critical areas. Political interference in military prosecutions has a long history, and it inevitably corrupts and taints individual cases, impairing public confidence in the judicial integrity of the court-martial. Moreover, this is a justice system that self-consciously celebrates the influential and central role of the commanding officer, creating an “operating environment [which] remains an orders-driven, hierarchical, and profoundly coercive special society.” It must, therefore, still contend with and actively combat the ever-present risk of “unlawful command influence” no matter how many other civilianizing characteristics military justice now enjoys, and regardless of whether that influence was direct or merely indirect, actual or only apparent, intentional or just inadvertent. Moreover, in a field as obscure as military law, public transparency of judicial and prosecutorial decision-making—especially in terms of sentencing—may outweigh the countervailing goal of shielding the “deliberative process” when both statutes and case law either already require it in civilian practice or encourage it. Some national security professionals, military justice practitioners among them, are “under pressure” to depart from professional norms and their professional obligations, and to dilute or change their advice to their (political) principals, or to advocate on the principal’s behalf thereby losing their highly valuable professional independence—they are “wedged between their principles and principals.”
The ABA has a note about the Bluebook.
U.S. Supreme Court Justice Clarence Thomas went rogue on the Bluebook when he embraced an appellate lawyer’s suggestion for dealing with “citation baggage” that comes with some quoted material.
Sexual Assault in the Military Subcommittee: SUBCOMMITTEE ON PERSONNEL
Date: Wednesday, March 24, 2021.
Agenda: To receive testimony on sexual assault in the military.
CAAFlog interns reviewed all CAAF opinions from the 2019-2020 term. Only four of twenty-five cases did not involve a conviction for a sex-related offense (including child pornography): Turner, Hennis, Easterly, & Muller. This is obviously not normal for a general criminal jurisdiction. The disparity raises a number of questions, and perhaps some of you have tentative answers.
1. Is this new?
2. What is the cause of this?
3. What is lost (or gained) by a court having "sex on the brain"? Is there is a risk that general doctrines, analyzed in light of sex crimes, will develop in an aberrant or skewed manner? Is there a risk that the reform movement will become singularly focused on sex crimes because these are the only cases reviewed by the highest military court?
"No. 20-0345/AR. U.S. v. Jacob L. Brubaker-Escobar. CCA 20190618. On further consideration of the briefs filed by the parties and oral argument, it is ordered that Appellant shall, within 14 days, file a supplemental brief addressing the following issue specified by the Court:
WHETHER SECTION 6(b) OF EXECUTIVE ORDER 13,825 OF MARCH 1, 2018 WAS A LAWFUL EXERCISE OF THE AUTHORITY DELEGATED TO THE PRESIDENT BY SECTION 5542(c)(1) OF THE NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2017 OR BY ANY OTHER LAW."
The relevant provision of the E.O. is this:
"(b) If the accused is found guilty of a specification alleging the commission of one or more offenses before January 1, 2019, Article 60 of the UCMJ, as in effect on the date of the earliest offense of which the accused was found guilty, shall apply to the convening authority, in addition to the suspending authority in Article 60a(c) as enacted by the MJA, to the extent that Article 60:
(1) requires action by the convening authority on the sentence;
(2) permits action by the convening authority on findings;
(3) authorizes the convening authority to modify the findings and sentence of a court-martial, dismiss any charge or specification by setting aside a finding of guilty thereto, or change a finding of guilty to a charge or specification to a finding of guilty to an offense that is a lesser included offense of the offense stated in the charge or specification;
(4) authorizes the convening authority to order a proceeding in revision or a rehearing; or
(5) authorizes the convening authority to approve, disapprove, commute, or suspend a sentence in whole or in part."
"No. 21-0052/NA. U.S. v. Virginia S. Moratalla. CCA 201900073. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:
WHETHER THE APPELLANT'S GUILTY PLEA TO BANK FRAUD UNDER 18 U.S.C. §1344 WAS IMPROVIDENT.
Briefs will be filed under Rule 25.
No. 21-0130/AF. U.S. v. Clayton W. Turner. CCA 39706. 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), UCMJ.
No briefs will be filed under Rule 25.
No. 21-0140/AR. U.S. v. Jonathan D. Davenport. CCA 20200190. 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."
TAKING CHARGE OF COURT MARTIAL CHARGES: THE IMPORTANT ROLE OF THE COMMANDER IN THE AMERICAN MILITARY JUSTICE SYSTEM
United States v. Simpson
In this guilty plea case, the military judge found Appellant guilty of one specification of conspiring to create and distribute an indecent visual recording, one specification of aiding and abetting the creation of an indecent visual recording, one specification of aiding and abetting the distribution of an indecent visual recording, and three specifications of assault consummated by a battery. The convening authority reduced the confinement of thirty-two months to eighteen (with the balance suspended due to the PTA.
On appeal, the CAAF answered whether it is legally impossible for an Appellant to be convicted of distributing indecent images to himself when the plain language of the code considers the distribution of “another[‘s]” images explicitly. Answering in the negative, the Court affirmed the holding of the NMCCA.
I. Legal Impossibility
While the Court will withhold acceptance of legal conclusions in a stipulation, it will, as it did here, accept the factual statements as true. Appellant, then, offers three arguments for why he cannot be guilty of distributing an indecent recording.
A. The Meaning of Distribute
First, Appellant argues that he could not have violated Article 120c(a)(3)’s prohibition on distributing an indecent recording because he was the recording's recipient. So it was delivered to him and not to “another” person. The Government argued that Appellant is guilty of the offense as an aider and abettor even though he did not “deliver” the recording. The court adopts the definition of distributing in Article 120c(d)(5) that “[d]istribute” means “delivering to the actual or constructive possession of another.”
Agreeing with the Government’s position, the Court found that the distribution element “is satisfied in this case because MB delivered the recording to a person other than herself, namely, to Appellant. And even though MB effected the delivery, Appellant can be guilty of this offense as a principal if he aided and abetted MB.” The Court reminds us that “A principal under an aiding and abetting theory is independently guilty of an offense even though he or she is not the actual perpetrator and did not personally commit all of the acts necessary for the offense.”
B. Congressional Intent
Second, Appellant contends that sustaining his guilty plea would produce a result that Congress never intended. Applying the reasoning of United States v. Hill, the Court concluded that “a person who aids and abets the distribution of an indecent recording can be liable as an aider and abettor if he sufficiently associates himself with the purpose of the actual distributor. In this case, as described above, Appellant did more than just receive an indecent image, he went further to “counsel and encourage MB to distribute the recording, and MB would not have distributed the recording without Appellant’s counseling and encouragement.”
C. MB’s Criminal Liability
Third, Appellant asserts “that he could not be guilty of aiding and abetting MB because MB is a civilian who is not subject to the UCMJ and who did not violate any state law by distributing the recording.” To this, the Government responds contending that such an argument falls outside the scope of the granted issue. The Court Agreed with the Government that the grant of review was limited and that the argument was outside the granted issue. Declining to decide the issue the Court relied on a footnote in United States v. Guardado, 77 M.J. 90 (C.A.A.F. 2017).
At bottom, finding no prejudicial error, the Court Affirmed Appellant’s conviction.
 In United States v. Hill, 25 M.J. 411 (C.M.A. 1988), the Court asserted that merely buying or possessing drugs generally could not be considered aiding and abetting the distribution of drugs without running afoul of Congress’s intent to make buying drugs a separate offense from distributing drugs. “Otherwise, prosecutors would be free to obliterate the distinction between possessors and distributors by charging any possessor with aiding and abetting the distribution of the drugs which he has received.”
by Farris Francis.
The Air Force Court of Criminal Appeals (AFCCA) affirmed the sentence of Appellant Gregory C.S. Merritt II. Appellate Military Judge Meginley dissented in a separate opinion. Appellant was charged with wrongful possession of child pornography in violation of Article 134 UCMJ and sentenced to dishonorable discharge, confinement for 30 months, forfeiture of all pay and allowances, and reduction to the grade of E-1. In accordance with a pretrial agreement (PTA) the convening authority disapproved the forfeitures but approved the remainder of the sentence.
Merritt Opinion Here
The agent's testimony, however, was based solely on the extrajudicial statements of the petitioner, and under the standard we have adopted these admissions must be corroborated by substantial independent evidence.
Smith v. United States, 348 U.S. 147, 157 (1954) (emphasis added).
The CAAF has granted Appellant Whiteeyes petition for review on the following issue.
WHETHER THE MILITARY JUDGE COMMITTED PREJUDICIAL ERROR BY ADMITTING APPELLANT'S STATEMENTS TO LAW ENFORCEMENT IN VIOLATION OF MILITARY RULE OF EVIDENCE 304(c).
The ACCA decision is here. The appellant's Reply to the government's Answer to the opening brief is here, but neither the opening brief nor the Answer are on the ACCA site.
An enlisted panel found the appellant guilty of one specification of sexual abuse of a child but not guilty of one specification of raping a child and one specification of sexually abusing a child. On appeal to ACCA, the appellant raised several issues; among them a challenge to various pretrial admissions because there was insufficient independent evidence tending to establish the “trustworthiness of the admission or confession.”
must be proven by evidence outside of the confession of the defendant;" and that "whenever that state of case is established, then you may take the declarations of the defendant as tending to show his guilt."
Issacs v. United States, 159 U.S. 487, 490 (1895) (emphasis in the original). But what quantum of evidence does the Supreme Court require?
United States v. Binegar. Case remanded to resolve post-trial processing errors. With the number of these issues arising, is it arguable that the Appellant should get confinement credit or the delay in resolving his appeal? Sending all these post-trial error cases back is legally correct, but the client suffers delay. As a second shoe—an exemplary matter—should the courts be giving sentence credit pour encourager les autres?
In United States v. Edwards appellant raised three AOEs and 14 Grosty’s. Findings and sentence affirmed with a 41-page opinion. Issues of note discussed,
We find that a victim may present a verbal unsworn statement under R.C.M. 1001A through the medium of a video. Central to this conclusion is that no provision of R.C.M. 1001A expressly disallows a victim to submit a video at a sentencing hearing. Also, the video itself as a mode of presentation is neither unreasonable under R.C.M. 1001A(a), nor is it obviously outside the scope of a “statement” as that term is used in R.C.M. 1001A.
United States v. Justice is an interesting writ petition arguing for a new Article 32, UCMJ, preliminary hearing. At the hearing,
Defense counsel made numerous objections before, during, and after the hearing. Inter alia, the Defense objected on the grounds that the PHO did not outrank Lt Col NM; that the PHO was not impartial; that the “unsafe” hearing should be delayed; and that an AFOSI agent testified while wearing a mask over his nose and mouth.
After referral the defense moved for a new preliminary hearing which the military judge denied because the hearing was “in substantial compliance” with the law. “With regard to the witnesses wearing masks, the military judge noted an accused’s right to confront witnesses face-to-face is not absolute.” And this would be particularly true at a preliminary hearing?
The petition was denied. CAAF on a writ appeal petition?
United States v. Monge. Appellant entered mixed pleas of which the MJ accepted the GPs and members found him guilty of various sex offenses. On appeal Appellant raised legal and factual sufficiency to the members findings of guilt. Rather than address the issues now, the court returned the case to the convening authority for corrective action resolving post-trial errors.
United States v. Tellor. In this mixed plea case appellant raised nine issues.
Appellant raises nine issues on appeal: (1) whether the military judge abused his discretion by erroneously excluding impeachment evidence; (2) whether the military judge abused his discretion by allowing hearsay testimony; (3) whether the military judge abused his discretion when he allowed the victim to exceed the permissible scope of her unsworn statement; (4) whether trial counsel’s sentencing argument was improper; (5) whether there is a question as to whether outside influence was improperly brought to bear on any court member; (6) whether Appellant’s commander’s disparaging posttrial comments unlawfully increased Appellant’s punishment; (7) whether cumulative error requires a rehearing on the sentence; (8) whether Appellant’s sentence is inappropriately severe; and (9) whether Appellant is entitled to relief for the conditions of his post-trial confinement.
Rather than decide the issues the court remanded to case to the convening authority “to resolve a substantial issue with the convening authority’s decision memorandum as the action taken on Appellant’s adjudged sentence was ambiguous and incomplete.”
In United States v. Ayala, published this week, the CAAF ducked the question presented about the admissibility of pretrial statements as prior consistent statements under Mil. R. Evid. 801. Should they have?
In cases addressing nonconstitutional evidentiary errors, the court asks whether the judge made a legal error in admitting or excluding evidence under an abuse of discretion standard of review. United States v. Humphreys, 57 M.J. 83, 90 (C.A.A.F. 2002). This meta-analysis comes in two parts: was there error, and is there prejudice?
First, did the military judge err. To err means the military judge “abused his discretion.” A military judge may abuse his discretion in one of three ways: (1) the findings of fact are clearly erroneous (the Court has described a test for this: findings of fact are “clearly erroneous” when the reviewing court “is left with the definite and firm conviction that a mistake has been committed” (United States v. Martin, 56 M.J. 97, 106 (C.A.A.F. 2001)); or (2) the military judge had an erroneous view of the law, or (3) the military judges' decision was outside the range of choices reasonably arising from the pertinent facts and the law. United States v. Kelly, 72 M.J. 237, 242 (C.A.A.F. 2013). Admittedly (no pun intended), there are many algebraic variables here that need to be replaced by facts, and thus some traditional legal analysis is required. But that is not the end of the problem.
The NMCCA set aside Appellant’s conviction for violating a lawful general order by wrongfully possessing drug abuse paraphernalia and ordered that the supplemental court-martial order [CMO] accurately reflects that Appellant was acquitted of wrongful manufacture of marijuana with intent to distribute. The Court affirmed the remaining findings and, upon reassessment, affirmed the sentence.
McCall Opinion here.
Appellant was convicted, contrary to his pleas, of conspiracy to possess, introduce, and distribute marijuana; absence without leave; violation of a lawful general order by wrongfully possessing drug abuse paraphernalia; wrongful introduction of marijuana with intent to distribute; and wrongful use of marijuana; in violation of Articles 81, 86, 92, and 112a, UCMJ.
Friends of CAAFlog inform us that a sketch artist was present for the oral argument in Begani. If the person with the rights to the finished product would like to share that with the world, please hit "Contact" above.
Michel's post below predicts a "rare military/civilian circuit split." We often hear people talk this way, but the Begani case illustrates the limits of that analogy. "Split" normally implies co-equal courts, neither of which can bind each other with legal holdings (e.g., the 9th Circuit does not determine law in the 8th), and neither of which can review the other's decision (e.g., a loser in the 8th cannot appeal to the 9th). With respect to CAAF, the former is true but not the latter. CAAF is certainly not bound by Judge Leon's holding regarding Article I, but Judge Leon has the power to vacate the same court-martial conviction that CAAF previously affirmed. The reason for this is of course habeas corpus review of courts-martial convictions (for prisoners) or federal question review (for non-prisoners). 586 F.3d 28. Thus, even if the "split" occurs and even if the Supreme Court refuses to intervene, convicted Fleet Reservists can eventually vindicate their Article I claim in federal court (assuming Leon's ruling is upheld).
Watch CAAFlog editor Michel Paradis debate the above question tomorrow! Link here.
A new article recently submitted on SSRN:
WHO IS PREFERRED TO REFER? THE PROPOSED TRANSFER OF PROSECUTORIAL DISCRETION IN THE MILITARY - Megan Greer
"Many argue that military commanders are unfit to have the power of prosecutorial discretion because of their lack of a formal legal education and propensity to abuse discretion when allegations of misconduct involve those in leadership. Meanwhile, others argue that commanders
are the only ones fit to hold this power. The current military justice system follows along the latter train of thought, as commanders are the individuals responsible for those within their units and are tasked with the goal of maintaining good order and discipline throughout the military. Consequently, the transfer of prosecutorial discretion to high-ranking military lawyers would undermine commanders’ ability to carry out their duties and would negate the purpose of the commander’s role as codified in the Uniform Code of Military Justice and Manual for Courts- Martial. Because of this, Congress should reject the proposals contained in both the 2020 Military Justice Improvement Act and § 540F of the 2020 National Defense Authorization Act and should instead enact a new provision to the Uniform Code of Military Justice that re-emphasizes commanders’ leadership roles and responsibilities."
Last summer we posted their white paper describing sexual assault data comparisons between the military and civilian worlds. A substantially revised version is now available below:
NATIONAL, MILITARY, AND COLLEGE REPORTS ON PROSECUTION OF SEXUAL ASSAULTS AND VICTIMS’ RIGHTS: IS THE MILITARY ACTUALLY SAFER THAN CIVILIAN SOCIETY? -- David A. Schlueter and Lisa M. Schenck
CAAF heard arguments in United States v. Begani this morning, a case challenging the extension of court-martial jurisdiction over retired active duty personnel. The argument ran nearly an hour with University of Texas School of Law Professor Steve Vladeck arguing that Congress exceeded its authority under the Make Rules Clause when it made active duty retirees subject to court-martial jurisdiction under the UCMJ. Vladeck was matched by MAJ Clayton L. Wiggins, USMC, who deftly argued the case for the government, arguing that the longstanding extension of court-martial jurisdiction over retirees passed constitutional muster.
As CAAFLog readers might remember, Vladeck prevailed on this claim this past November in Larabee v. Braithwaite, a habeas corpus action brought in the D.C. District Court. In striking down UCMJ jurisdiction over retirees, Judge Leon held:
Congress has not shown on the current record why the exercise of [court-martial] jurisdiction over all military retirees is necessary to good order and discipline. Indeed, the Government points to no clear statements by members of Congress upon passing the Uniform Code of Military Justice that explain the necessity of subjecting all military retirees to court-martial jurisdiction. Because the Supreme Court has consistently emphasized that court-martial jurisdiction should be narrowly circumscribed ... I must conclude that in the absence of a principled basis promoting good order and discipline, Congress's present exercise of court-martial jurisdiction over all members of the Fleet Marine Corps Reserve is unconstitutional.
Suffice it to say that at argument this morning, some of the judges on CAAF took umbrage at Judge Leon's willingness to split with military law precedents that had until recently been reasonably settled inside the court-martial system.
While CAAF appears poised to split with Judge Leon, creating a rare military/civilian circuit split, the judges struggled to identify a clear standard for determining the outer constitutional limits on who Congress may include within the "Land and Naval forces" for the purposes of court-martial jurisdiction. Vladeck argued that a functional approach was necessary, one that weighed the extent of an individual's contribution to good order and discipline. Wiggins, for his part, argued for a more formal test, one that gave Congress considerable deference in determining who should be treated as a member of the armed forces.
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