The court has granted a petition in Greer v. United States on the following issue.
Whether, when applying plain-error review based on an intervening United States Supreme Court decision, Rehaif v. United States, a circuit court of appeals may review matters outside the trial record to determine whether the error affected a defendant’s substantial rights or impacted the fairness, integrity or public reputation of the trial.
And the following petition of interest has been filed in Andrews v. New Jersey, by the ACLU and EFF on behalf of the appellant.
Does the Self-Incrimination Clause of the Fifth Amendment protect an individual from being compelled to recall and truthfully disclose a memorized passcode, where communicating the passcode may lead to the discovery of incriminating evidence to be used against him in a criminal prosecution?
Prof. Rachel VanLandingham has a piece in The Hill today that you may find interesting--it is about what actions, if any, should be taken by commanders against servicemembers involved in the assault on Congress. Rachel takes on the now frequent concern about Congress members interfering in specific cases and demanding specific results from courts-martial. One argument she makes is that the feds should take primary jurisdiction over those involved in the recent riotous events. We suspect some may disagree with her.
Read here, Rachel E. VanLandingham, The best way to handle veterans, active-duty military that participated in the Capitol Riot. The Hill, January 14, 2021.
CAAF yesterday released an opinion in US v. Stanton. More analysis to come.
"For reasons that we explain below, we conclude that the convening authority’s approval of Appellant’s request for a discharge in lieu of trial by court-martial was not a “pretrial agreement” within the meaning of the Rules for Courts Martial (R.C.M.). We further conclude that, although the convening authority made some other kind of agreement with Appellant, the convening authority did not expressly or implicitly promise to vacate the finding of guilt and dismiss the charge and specification."
The Joint Service Committee recently posted the Code 146a reports of the four services on FY20 courts-martial data. Consistent with the decades long trend, the number of general and special courts-martial tried was down from the previous year to a record low since the adoption of the UCMJ. In total, the four services tried a total of 1,323 generals and specials compared with 1542 in FY19. What isn’t clear is whether the reduction is a result of the pandemic occurring during the last six months of the fiscal year or merely consistent with the well-established pattern of ever fewer courts-martial being convened.
For example in FY60, the services tried 40,810 general and special courts. Even if adjusted for the smaller total force in FY20 that would still be the equivalent of 21,200 courts today. Obviously, this represents a significant reduction in the rate in which commanders use courts-martial, but I am not aware of any studies into why courts-martial use has seen such a dramatic reduction. I believe it is in part driven by the court-martial now being viewed almost exclusively as a criminal justice process rather than a discipline tool. Consequently, pure discipline issues predominately seem to be handled by administrative actions.
The reports have two other interesting data points worth examining. The first has to do with conviction rates in general courts and the second is the paucity of trials before members. The Marines led the services with a 92% conviction rate while the Air Force again had the worst conviction rate at 69%. The Navy and Army both had a conviction rate of 83%. Of the 720 general courts tried in the four services, the defense won 131 cases, or 18%. In reality though, the defense success rate in litigated cases is certainly much higher as the 720 general courts would include a significant number of guilty plea cases.
Additionally, the numbers also doubtlessly include many cases counted as a conviction by the military where the accused was acquitted of the most serious charges, but found guilty of a lesser charge like underage drinking. It would certainly be helpful to know these numbers as well as the acquittal rates for fully litigated cases. But much to their credit, the defense community is winning at unprecedented rates for their clients, especially in Air Force courts.
One number that I believe might be surprising is how few cases were tried before members. Of the 1323 general and special courts, only 273 were before members or 21%. This is actually quite startling and not entirely attributable to Covid as only 25% were tried before members in the prior fiscal year. Considering that there are several thousand O-3 JAGs in the various JAG Corps, it raises the question of how experienced is the average JAG when it comes to litigated cases before members? This is especially true, as many of these 273 cases would have included sentencing only courts.
Purely for perspective, of the 1,340,000 active duty members, only 1140 were convicted at a general or special court last year. We have thousands of JAGs assigned as trial counsel, defense counsel, appellate counsel, trial judges and appellate judges to achieve these results. Of course this doesn’t count all the paralegals, commanders or convening authorities also involved in the process. Not saying there should be more or less convictions, but that is a lot of manpower for so few.
CAAF held four oral arguments this week--links to the audio.
Tuesday, January 12, 2021
United States v. Thomas E. Mader, III No. 20-0221/MC
(Appellee)(Appellant)(audio -- mp3 wma)Counsel for Appellant: Maj Mary Claire Finnen, USMC (brief) (reply brief)
Counsel for Appellee: LT Jennifer Joseph, JAGC, USN (brief)
Case Summary: GCM conviction of violating a lawful general order and assault consummated by a battery. The granted issue is: Consent is a defense to assault consummated by a battery. The lower court found that even though Appellant had mistakenly believed other Marines consented, no person in any similar circumstances could ever lawfully consent. Did the lower court err?
United States v. Gregory S. Simpson No. 20-0268/MC
(Appellee)(Appellant)(audio -- mp3 wma)
Counsel for Appellant: Tami L. Mitchell, Esq. (brief) (reply brief)
Counsel for Appellee: LT Gregory A. Rustico, JAGC, USN (brief)
Case Summary: GCM conviction of conspiracy to create and distribute an indecent recording, indecent recording, distributing an indecent recording, and assault and battery. Granted issue questions whether it is legally impossible for Appellant to be convicted of distributing indecent images to himself under Article 77, UCMJ, when the plain language of Article 120c(d)(5), UCMJ requires the images be distributed to "another."
ACCA released an unpublished per curiam summary disposition in United States v. Winters, modifying the judgement as requested by both parties.
Winters opinion here.
On 1 April 2020, Sergeant Winters was convicted on the basis of a guilty plea to two specifications of selling military property and two specifications of theft of military property, in violation of Articles 108 and 121.
The sole issue on appeal concerned Winters’ request to waive the automatic forfeitures of all pay and allowances that would have otherwise accompanied his conviction. The convening authority [CA] “approved” this request in a memo dated 7 May 2020. However, when the CA acted on the request on the same day, the CA waived only forfeitures of pay, not allowances. On 12 May, the military judge entered the judgement, copying the language from the CA’s action, which did not waive the allowances forfeiture.
On appeal, both parties agreed that the CA’s action was ambiguous and in conflict with the contemporaneous memo, and requested that the ACCA modify the judgment to reflect the CA’s “clearly expressed intent” to waive the automatic forfeitures of Winters’ pay and allowances. The ACCA did so.
"Among the many calls for accountability for the January 6 putsch at the U.S. Capitol, attention has focused on the involvement of military personnel. These calls, which are entirely understandable given the role of the armed forces in protecting the country, raise a surprising number of legal issues. We will try to unpack a few of them.
Early reports suggest that active, reserve, retired, and former military personnel may have participated in the putsch. It is critical not to make any assumptions until a better grip can be had on the facts of each individual’s case. It is also critical not to treat these distinct categories as if they are legally fungible; they are anything but. And as we explain below, the military justice system could be available for some of these groups, but not others.
However, we argue that even in cases where courts-martial could be used, civilian courts should try those responsible for organizing and participating in the putsch – our civilian institutions of government are open and up to the task, and should be used as a first resort. We also offer avenues of accountability within the military beyond criminal trials."
Full post here.
🚨🚨🚨 "Order Granting Petition for Review
No. 21-0078/AR. U.S. v. Montana J. Miller. CCA 20190597. 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."
"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.
Save the date:
A CAAFlog Discussion -- Representing (Alleged) War Criminals
January 22, 2021
Meeting ID: 994 7088 8693
Dial by your location
+1 646 558 8656 US (New York)
+1 312 626 6799 US (Chicago)
+1 301 715 8592 US (Washington D.C)
Join CAAFlog editors and friends for a one hour lunchtime discussion about the challenges of representing alleged war criminals in courts-martial and military commissions. Co-panelists Michel Paradis and Colby Vokey will each share general thoughts, followed by open comments and questions from the audience.
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.