Significant military justice event this week: The 2015 meeting of the Code Committee will occur on Tuesday, March 3, 2015, at 10:00 a.m., at CAAF (notice here). As with the past two years (discussed here (2014) and here (2013)), I plan to attend and post notes.

This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court.

This week at CAAF: The next scheduled oral argument at CAAF is on March 17, 2015.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on March 17, 2015.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

This week at the CGCCA: The Coast Guard Trial Docket shows no scheduled oral arguments at the Coast Guard CCA.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

Yesterday I posted some analysis of the Secretarial implementation of guidance for Article 32 preliminary hearings. The ensuing debate was quite contentious. It continues in this week’s Scholarship Saturday, with Jonathan Lurie, The Transformation of Article 32: Why and What?, 29 Wis. J.L. Gender & Soc. 409 (2013) (available here).

The article is part of the Special Symposium Issue of the Wisconsin Journal of Law, Gender & Society: “The Threat From Within: Current and Alternative Response To Sexual Assault in the Military” (full contents available here). Jonathan Lurie is a professor emeritus at Rutgers University and he is the author of two books documenting the history of CAAF.

Professor Lurie’s article discusses the “‘notorious’ Article 32 investigation” in the Naval Academy sexual assault case (part of our #2 military justice story of 2014, and also a topic in my op-ed published in the Baltimore Sun), and he asserts that “the military judge who recommended that this case not be referred to a court-martial is the same official who permitted the excessive cross-examination of the alleged victim, later characterized as causing ‘heavy damage’ to the [sic] her testimony.” Lurie, supra, at 409-410. It was Navy Commander and military judge Robert Monahan who recommended that the charges not be referred for trial, and his report was quoted by the Washington Times as stating:

As difficult as it would be for the government to prove beyond a reasonable doubt that (the alleged victim’s) professed lack of memory at the time Midshipman Graham engaged in sexual activity with her was due to her being substantially incapacitated, the government’s task becomes extremely more difficult, if not impossible, due to the heavy damage done to (the alleged victim’s) credibility at the Article 32 hearing.

Of course, the accused who actually suffered a trial by court-martial (a kid by the name of Midshipman Josh Tate) was ultimately acquitted of sexual assault after a bench trial before a military judge.

But that won’t stop a good narrative. Professor Lurie continues:

[O]riginally intended to protect the defendant, somehow Article 32 evolved into a device for abusive cross-examination of the plaintiff. To be sure, the presiding officer easily could have restrained defense counsel from the type of abusive cross-examination inflicted on the complainant.

Lurie, supra, at 411. Commander Monahan – who justly enjoys widespread respect as an excellent military judge – apparently is little more than a neanderthal misogynist. And as for those ruffians who represented the now-exonerated accused, Professor Lurie has a few choice words:

It will be recalled that in the “notorious” cross-examination conducted on behalf of the Annapolis football team defendants, their counsel subjected the complainant to what at best can be described as barely on the cusp of acceptable trial conduct, and at worst totally beyond appropriate trial procedure.

Lurie, supra, at 413. You read that right; both the Article 32 investigation as a whole, and the cross-examination of the alleged victim in particular, are separately described as “notorious.”

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Thanks to a Commenter, we now have the rescission of the order (here) that MC judges move to Gitmo until the cases are completed.

Congress revised Article 32 in the FY14 NDAA, eliminating the longstanding practice of a thorough pretrial investigation of charges prior to referral to a general court-martial, and replacing it with a more limited preliminary hearing. I analyzed the new statute shortly after it was enacted, in this post. The statute was slightly modified in the FY15 NDAA, making it effective for all hearings conducted on or after December 26, 2014 (discussed here).

Even though the new statute is in effect, the Manual for Courts-Martial has not been revised (though the JSC has proposed revisions, discussed here and here). In particular, R.C.M. 405 details the procedure for an Article 32 pretrial investigation, and it has not been modified to reflect the new statutory framework of a preliminary hearing. The Manual is promulgated under the President’s rulemaking authority contained in Article 36, and it is controlling for all of the services.

Nevertheless, two service secretaries have issued implementation guidance for Article 32 preliminary hearings. The Navy was first, with ALNAV 086/14 (“New Article 32, UCMJ, Preliminary Hearing Procedures”), issued on December 22, 2104. The Army recently followed suit, with Army Directive 2015-09 (“Implementation of Section 1702 of the National Defense Authorization Act for Fiscal Year 2014-Article 32, Uniform Code of Military Justice Preliminary Hearing”), issued on February 24, 2015. Update: A reader passed along the AFLOA/JAJM Article 32 Preliminary Hearing Officer’s Guide dated December 23, 2014, which contains similar guidance for the Air Force (though not from the Secretarial level).

These issuances generally conform to the new statutory language of Article 32, and they are in some ways inconsistent with the existing R.C.M. 405. For example, both of the issuances allow a Preliminary Hearing Officer to consider “other evidence, in addition to or in lieu of witness testimony. . . ” ¶ 3.(i)(3)(B), ALNAV 086/14; ¶ 10.c.(2), Encl. 1, ARMY DIR 2015-09. However, R.C.M. 405(g)(4) limits the ability to consider alternatives to testimony, and R.C.M. 405(g)(5) limits the ability to consider alternatives to evidence.

I think that the authority of a Service Secretary to issue substantive rules that are contrary to the Rules for Courts-Martial is dubious, and I note that “if an accused is deprived of a substantial pretrial right on timely objection, he is entitled to judicial enforcement of his right, without regard to whether such enforcement will benefit him at the trial.” United States v. Murray, 25 M.J. 445, 447 (C.M.A. 1988) (quoting United States v. Ragan, 33 C.M.R. 331, 336 (C.M.A. 1963) (quoting United States v. Mickel, 26 C.M.R. 104, 107 (C.M.A. 1958))). It will be interesting to see how the appellate courts address any objections to the ALNAV and the ARMY DIR.

Here is a link (courtesy of Lawfare) to the Hicks case decision from U.S. Court of Military Commissions Review (USCMCR) .  The Feb. 18, 2015 decision (I am a little tardy), after finding that Hicks waiver of appellate review . . . didn’t waive appellate review, set aside his guilty plea to providing material support to terrorism, in violation of 10 U.S.C. § 950v(b)(25) (2006), and the sentence based on Al Bahlul v. United States, 767 F.3d 1 (D.C. Cir. 2014) (en banc).  If you’ll recall, here (Lawfare), Al Bahlul found that (as summarized by Judge Kavanaugh):

A military commission may not try the offense of material support for terrorism for conduct that occurred before enactment of the 2006 Act. All seven judges likewise conclude that a military commission may not try the offense of solicitation for conduct that occurred before enactment of the 2006 Act. The Court is unanimous that those two offenses were not war crimes triable by military commission at the time of Bahlul’s conduct in 2001. Therefore, all seven judges agree that we must vacate Bahlul’s material support for terrorism and solicitation convictions as ex post facto violations.

Since Hicks has long since been released from Gitmo, this doesn’t do much for him.  His defense counsel should get an astro-turf rug in front of his door (sorry, bad Code 45 tradition). WSJ coverage here.

More to follow, here is the order.  Prior coverage from the WSJ here.

Audio of today’s oral arguments is available at the following links:

United States v. Simmermacher, No. 14-0744/NA (CAAFlog case page): Oral argument audio.

United States v. Woods, No. 14-0783/NA (CAAFlog case page): Oral argument audio.

CAAF decided the Army case of United States v. Newton, __ M.J. __, No. 14-0415/AR (CAAFlog case page) (link to slip op.) on Wednesday, February 25, 2015. The court finds that Appellant was required to register as a sex offender under the 2008 Sentencing, Monitoring, Apprehending, Registering, and Tracking (“SMART”) Guidelines promulgated by the Attorney General of the United States, and therefore it is unnecessary to consider the validity of a 2007 interim rule. CAAF affirms the decision of the Army CCA and Appellant’s convictions of rape of a child, indecent acts, wrongfully sending an indecent picture of himself to his minor daughter, and knowingly failing to register as required by the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. § 2052(a), in violation of Articles 120 and 134.

Judge Ryan writes for a unanimous court. Of note, Judge Ohlson recused himself from participation in this case, and Senior Judge Cox participated in the place of Judge Ohlson.

Appellant joined the Army in 1998. In 1995 (prior to joining the Army) Appellant pleaded guilty in Missouri to statutory rape of a fourteen year-old girl, and he was informed of his obligation to register as a sex offender. Slip op. at 4. In late-2009, Appellant transferred to Fort Bliss, Texas, where he failed to register until mid-2010. For that failure, Appellant was convicted of failure to register as required by SORNA. But the issue before CAAF questioned whether Appellant even had a duty to register under SORNA:

Whether the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. § 2250 (a) (2006), applied to Appellant as a result of either the Attorney General’s 2007 interim rule or his 2008 guidelines. See, e.g., United States v. Lott, 750 F.3d 214 (2d Cir. 2014), 2014 WL 1522796; United States v. Reynolds, 710 F.3d 498 (3d Cir. 2013.)

SORNA was enacted in 2006. The statute did not automatically apply to sex offenders convicted prior to its enactment, however Congress explicitly gave the Attorney General (AG) the authority to determine the retroactivity of the registration requirement. See 42 U.S.C. § 16913(d). A series of actions by the AG followed:

  • In 2007 the AG issued an interim rule stating that SORNA applied to persons convicted of offenses prior to enactment of the federal statute. However, that rule was effective immediately rather than after a public comment period (as is normally required by the Administrative Procedures Act (APA)).
  • In 2008 the AG issued Sentencing, Monitoring, Apprehending, Registering, and Tracking (SMART) guidelines. These guidelines were issued after a public comment period.
  • In late 2010 the AG published a final rule. This rule took effect after the end of Appellant’s period of non-registration.

Appellant asserted that the 2007 interim rule was invalid because of the lack of a public comment period, and that the retroactive application provisions of the 2008 SMART guidelines are interpretive, not substantive. Applying the legal effects test, Judge Ryan rejects Appellant’s argument about the 2008 SMART guidelines, concluding that the retroactive application provisions are substantive and that Appellant therefore had a duty to register.

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When I wrote this post about the Coast Guard CCA’s opinion in United States v. Cooley, No. 1389 (C.G. Ct. Crim. App. Dec. 24, 2014), in which the court dismissed numerous charges for violation of the appellant’s right to a speedy trial under Article 10 after finding that pretrial confinement is per se prejudicial, I was pessimistic that the court had successfully resurrected Article 10 (declared long-dead in our #10 military justice story of 2013). I saw certification of the case as guaranteed, and I thought that if CAAF stays true to its Article 10 jurisprudence, then it’s going to look for something more than mere confinement to justify a finding of prejudice.

The following CAAF daily journal entry from yesterday says that my prediction will be put to the test:

No. 15-0387/CG. U.S. v. Christopher S. Cooley. CCA 1389.  Notice is hereby given that a certificate for review of the decision of the United States Coast Guard Court of Criminal Appeals was filed under Rule 22 on this date on the following issues:

WHETHER THE COAST GUARD COURT OF CRIMINAL APPEALS ERRED BY FINDING THAT PRE-TRIAL CONFINEMENT CAN SERVE AS PER SE PREJUDICE FOR PURPOSES OF DETERMINING A VIOLATION OF ARTICLE 10, UNIFORM CODE OF MILITARY JUSTICE.

WHETHER THE FACTS AND CIRCUMSTANCES OF APPELLEE’S CASE, CONSIDERING THE FACTORS SET OUT IN BARKER V. WINGO, 407 U.S. 514, 530 (1972) AND APPLIED TO REVIEW OF ARTICLE 10 BY UNITED STATES V. BIRGE, 52 M.J. 209, 212 (C.A.A.F. 1999), AMOUNT TO A VIOLATION OF ARTICLE 10, UNIFORM CODE OF MILITARY JUSTICE

Here is the FedReg announcement for the latest JPP meeting on Mar. 13, 2015 from 9 am to 5 pm. The focus of this meeting is to consider “compensation and restitution for victims of offenses under the UCMJ, and develop recommendations on expanding such compensation and restitution.”  Though not stated in the summary, the agenda makes clear that the focus is on restitution and compensation for sexual assault victims.  Below is the agenda (I am guessing somewhere in there OFL is speaking):

  • 8:30 a.m. – 9:00 a.m. Administrative Session (41 CFR 102-3.160, 3 not subject to notice & open meeting requirements)
  • 9:00 a.m. – 10:00 a.m. DoD Overview of Compensation and Restitution (public meeting begins)
    • Speakers: Department of Defense subject matter experts
  • 10:00 a.m. – 11:00 a.m. Economic Needs of Sexual Assault Victims and Barriers to Compensation
    • Speakers: Law school professors with recent scholarship on restitution and compensation for victims of sexual assault crimes
  • 11:00 a.m. – 12:15 p.m. State Compensation Programs: History, Purposes, and Use by Military/Dependent Victims
    • Speakers: Representatives from national and state crime victim compensation associations
  • 12:15 p.m. – 1:00 p.m. Lunch
  • 1:00 p.m. – 2:15 p.m. How Victims Can Obtain Restitution or Compensation for Crimes Under the Uniform Code of Military Justice
    • Speakers: Military Services’ subject matter experts
  • 2:15 p.m. – 4:45 p.m. Perspectives on Compensation and Restitution for Sexual Assault Victims
    • Speakers: Civilian and military practitioners, representatives from victim advocacy organizations
  • 4:45 p.m. – 5:00 p.m. Public Comment

CAAF decided the Air Force case of United States v. Gutierrez, __ M.J. __, No. 13-0522/AF (CAAFlog case page) (link to slip op.), on Monday, February 23, 2015. The court finds that Appellant’s conviction of aggravated assault, for engaging in sexual activity without disclosing to his partners that he was HIV-positive, is legally insufficient because there was no more than a 1-in-500 chance that Appellant would infect his partners. In so deciding, CAAF expressly overrules two significant cases addressing the issue. However, with only a citation to Canadian law, CAAF affirms a conviction for the lesser included offense of assault consummated by a battery. The court sets aside the sentence and remands the case for reassessment or a sentence rehearing.

Chief Judge Baker writes for a unanimous court.

Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge sitting alone, of failing to obey a lawful order, committing indecent acts, aggravated assault, and adultery, in violation of Articles 92, 120, 128, and 134. He was sentenced to confinement for eight years, total forfeitures, reduction to E-1, and a dishonorable discharge. Appellant’s convictions all related to sexual activities with partners who did not know that Appellant had tested positive for the Human Immunodeficiency Virus (HIV).

The Air Force CCA affirmed the findings and sentence in an opinion dated March 21, 2013. CAAF then granted review and scheduled the case for oral argument on December 16, 2013. But two weeks before the oral argument, CAAF remanded the case for a new review by a properly constituted panel of the Air Force CCA. See United States v. Janssen, 73 M.J. 221 (C.A.A.F. Apr. 15, 2014) (CAAFlog case page). On remand, the CCA again affirmed the findings and sentence in an opinion dated February 25, 2014. CAAF subsequently granted review of three issues:

I. Whether the evidence was legally insufficient to find beyond a reasonable doubt that appellant committed assault likely to result in grievous bodily harm.

II. Whether the evidence was legally sufficient to find beyond a reasonable doubt that appellant committed adultery.

III. Whether the facially unreasonable delay in post trial processing deprived appellant of his due process right to speedy review pursuant to United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006).

Chief Judge Baker’s decision answers the first issue in the affirmative, the second issue in the negative (rejecting Appellant’s argument that his conduct was constitutionally protected because his wife participated in the sexual encounters), and orders the Air Force CCA to consider the third issue on remand.

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In a recent published opinion in United States v. Dean, __ M.J. __, No. 20140058 (A. Ct. Crim. App. Feb. 10, 2015) (link to slip op.), a three-judge panel of the Army CCA finds that the convening authority erred in summarily denying the appellant’s request for deferment of automatic forfeitures and adjudged reduction in grade, but that the appellant failed to show an entitlement to relief.

Judge Lind writes for the panel.

The appellant pleaded guilty, at a general court-martial composed of a military judge alone, to two specifications of possession of child pornography in violation of Article 134. He was sentenced to confinement for seven months, reduction to E-1, and a bad-conduct discharge. After sentencing, the appellant submitted a request for deferment of the imposition of automatic forfeitures of pay and adjudged reduction in rank (both of which occur automatically, 14 days after adjudged). The convening authority (CA) did not explicitly act on the appellant’s request for deferment, but the convening authority did approve the entire sentence as adjudged.

Judge Lind finds that the circumstances of the convening authority’s action on the sentence “sufficiently reflects [that] the CA reviewed, considered, and acted on appellant’s [deferment request].” Slip op. at 4. However, by not separately acting on the deferment request, “the CA summarily denied appellant’s request for deferment of automatic forfeitures and adjudged reduction in grade. This was error.” Slip op. at 5.

Yet the appellant gets no relief because the CCA finds that the appellant must present “credible evidence that the CA’s denial was for unlawful or improper reasons” and further that the appellant “must make a colorable showing of possible prejudice that the CA would have granted the deferment absent consideration of the unlawful or improper reason.” Slip op. at 5 (marks omitted) (citing United States v. Zimmer, 56 M.J. 869 (A. Ct. Crim. App. 2002); United States v. Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998)).

This is an awfully high burden. When, as in Dean, there are no identifiable factors that the convening authority considered before improperly denying a deferment request without stating the reasons why, it’s hard to imagine how any appellant could ever show that the denial was for an unlawful or improper reason and that the convening authority would have granted the request absent that unlawful or improper reason.

But what’s more interesting about this opinion (and perhaps the reason it’s a published decision) is that this burden seems to be a novel interpretation that was made by the Army CCA in Zimmer (where the appellant was granted relief). Because of this, I think Dean deserves review by CAAF.

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This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court.

This week at CAAF: CAAF will hear oral argument in two cases this week, both on Wednesday, February 25, 2015:

United States v. Simmermacher, No. 14-0744/NA (CAAFlog case page)

Issue: When the Government destroys evidence essential to a fair trial, the Rules for Courts-Martial require the military judge to abate the proceedings. Here, the Government negligently destroyed the sole piece of evidence that provided the basis for HM3 Simmermacher’s conviction prior to both the referral of charges and the assignment of defense counsel. Should the military judge have abated the proceedings?

Case Links:
NMCCA opinion
Appellant’s brief
Appellee’s (Government) brief
Blog post: Argument preview

United States v. Woods, No. 14-0783/NA (CAAFlog case page)

Issue: Whether the military judge erred by denying a challenge for cause against the court-martial president, who said the “guilty until proven innocent” standard is “essential” to the military’s mission.

Case Links:
NMCCA opinion
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview

This week at the ACCA: The next scheduled oral argument at the Army CCA is on March 18, 2015.

This week at the AFCCA: The Air Force CCA will hear oral argument in United States v. Solis, on Monday, February 23, 2015, at 12:05 p.m. at the George Washington University Law Center, Washington D.C.

This week at the CGCCA: The Coast Guard Trial Docket shows no scheduled oral arguments at the Coast Guard CCA.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

The Army Lawyer recently republished a 2002 article by then-Major Timothy C. MacDonnell: Military Commissions and Courts-Martial: A Brief Discussion of the Constitutional and Jurisdictional Distinctions Between the Two Courts (available here).

We’ve kept an eye on the progress of the military commissions at Guantanamo over the years (coverage here). The article provides valuable context to those proceedings.

Here (Feb. 12, 2015), here (Feb. 11, 2015), and here (Feb. 9, 2015) are links to reports from the US v. Khalid Sheikh Mohammed, et al. (9/11 conspirators) Military Commission hearing. NIMJ’s volunteer observer for these hearings was NIMJ President Dru Brenner-Beck.