After so many motions, writ-petitions, and breathless claims that Army Sergeant Bergdahl can’t get a fair trial by court-martial on the charges of desertion with the intent to shirk important service and avoid hazardous duty in violation of Article 85(a)(2) and misbehavior before the enemy in violation of Article 99 for leaving his combat outpost in Patika Province, Afghanistan (leading to his capture by the Taliban and captivity for nearly five years), Bergdahl has elected to be tried by a court-martial composed of a military judge alone:
(source).

CAAF decided the Marine Corps case of United States v. Forrester, __ M.J. __, No. 17-0049/MC (CAAFlog case page) (link to slip op.), on Wednesday, August 16, 2017. Considering four separate convictions for possession of child pornography, where all four convictions involved the same contraband images but possessed on four separate electronic devices, a sharply-divided court concludes that the Manual for Courts-Martial creates a separate offense for each separate possession of the contraband, affirming the convictions, the decision of the Navy-Marine Corps CCA, and the approved sentence. The dissenters, however, find that the Manual is not so clear and would resolve the ambiguity in favor of lenity, merging the four convictions into one and remanding for reassessment of the sentence.

Judge Ryan writes for the court, joined by Chief Judge Stucky and Judge Sparks. Judge Ohlson dissents, joined by Senior Judge Erdmann.

Corporal (E-4) Forrester was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of six specifications of wrongful possession of child pornography in violation of Article 134. Forrester was acquitted of five additional specifications of the same offense. He was sentenced to confinement for 40 months, total forfeitures, reduction to E-1, and a dishonorable discharge. The convening authority approved the sentence.

Forrester was originally charged with just seven specifications of wrongful possession of child pornography, but those specifications alleged date ranges beginning before and ending after the effective date of Executive Order 13593 (enumerating a child pornography offense under Article 134). To address this overlap, the military judge split the seven specifications into eleven, separating them into pre- and post-Order time periods. Then, after findings, the military judge merged the six convictions into four, each alleging possession of child pornography on a different electronic device: three external hard drives and a Google email account. The prosecution’s evidence proved that 23 images and one video, copies of which were found on each device, were contraband child pornography.

After findings, Forrester’s defense counsel moved for the four convictions “to be merged into a single specification for purposes of sentencing only,” arguing that the images and time periods were the same and “the only difference is the device on which it was charged.” Slip op. at 4 (quoting record). Forrester’s goal was to be sentenced for one act of wrongful possession, not four. The military judge denied the motion and the NMCCA affirmed, concluding that “each charged possession was a separately punishable transaction.” Slip op. at 5. CAAF then granted review to determine:

Whether punishing the same transaction of obtaining child pornography with four convictions unreasonably exaggerates Appellant’s criminality and triples his punitive exposure, constituting an unreasonable multiplication of charges.

Yesterday’s decision answers this question in the negative because “the President . . . intended to separately criminalize and punish possession of each ‘material that contains’ child pornography.” Slip op. at 14.

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With a published opinion in United States v. Hardy, __ M.J. __, No. 38937 (A.F. Ct. Crim. App. Jun. 22, 2017) (link to slip op.), a three-judge panel of the Air Force CCA finds that the appellant’s guilty pleas waived his claim that his convictions of various offenses related to sexual contact with a minor are an unreasonable multiplication of charges.

“[T]he prohibition against unreasonable multiplication of charges addresses those features of military law that increase the potential for overreaching in the exercise of prosecutorial discretion.” United States v. Campbell, 71 M.J. 19, 23 (C.A.A.F. 2012) (CAAFlog case page) (quoting United States v. Quiroz, 55 M.J. 334, 337 (C.A.A.F. 2001)). Unreasonable multiplication of charges is different from multiplicity, which “is necessary to ensure compliance with the constitutional and statutory restrictions against Double Jeopardy.” Ibid.

In the Air Force case of United States v. Gladue, 67 M.J. 311 (C.A.A.F. 2009) (discussed here), CAAF split 3-2 to find that a pretrial agreement provision to waive all waivable motions served as a waiver – rather than forfeiture – of any objection to both multiplicity and unreasonable multiplication of charges. Writing for the majority, Judge Stucky explained that:

Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right.  The distinction between the terms is important. If an appellant has forfeited a right by failing to raise it at trial, we review for plain error. When, on the other hand, an appellant intentionally waives a known right at trial, it is extinguished and may not be raised on appeal.

71 M.J. at 313 (marks and citations omitted). The minority concurred in the result (finding neither multiplicity nor unreasonable multiplication), because:

“Although Appellant expressly waived all waivable motions, the military judge delimited that waiver by cataloguing the specific motions and issues waived. This catalogue did not include multiplicity or an unreasonable multiplication of charges. . .”

67 M.J. at 314. This analysis included the observation that:

[A]n accused cannot silently waive appellate review of plain error.

Id.

Gladue strongly suggested – but did not explicitly state – that a guilty plea alone does not waive a claim to an unreasonable multiplication of charges (because if the plea alone was a waiver, then the pretrial agreement waiver provision interpreted by the court was mere surplusage). But in Hardy the Air Force court reaches the opposite conclusion.

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On May 20, 2016, the President signed Executive Order 13,730 (discussed here) that amended Mil. R. Evid. 311 to limit application of the exclusionary rule in the case of an unlawful search or seizure, requiring a balancing that weighs the deterrent effect of exclusion.

The prior (and longstanding) rule stated that “evidence obtained as a result of an unlawful search or seizure made by a person acting in a governmental capacity is inadmissible against the accused” if the accused (1) makes a timely objection and (2) has an adequate privacy interest. Mil. R. Evid. 311(a) (2015). The new (current) rule adds a third requirement:

exclusion of the evidence results in appreciable deterrence of future unlawful searches or seizures and the benefits of such deterrence outweigh the costs to the justice system.

Mil. R. Evid. 311(a)(3) (2016).

In United States v. Mottino, No. 201700153 (N-M. Ct. Crim. App. Jul. 27, 2017) (link to slip op.), a three-judge panel of the Navy-Marine Corps CCA grants a prosecution appeal and reverses a military judge’s ruling suppressing evidence because:

the military judge’s findings of fact are not clearly erroneous, but that her analysis and application of the law do not include the balancing test required under MIL. R. EVID. 311(a)(3).

Slip op. at 2.

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The Army CCA’s published en banc opinion in United States v. Kelly, __ M.J. __, No. 20150725 (A. Ct. Crim. App. Jul. 5, 2017) (link to slip op.), is notable for a number of reasons. The case involves a claim of ineffectiveness of counsel based on the defense counsel foregoing any peremptory challenge in pursuit of a certain number of members (a strategy known as the numbers game), the members repeatedly asked questions about uncharged adultery after the military judge instructed them to disregard it, and a split en banc court concludes that it has no authority to set aside a mandatory minimum dismissal or dishonorable discharge for a sexual offense required by Article 56.

But the CCA also finds that the failure of defense counsel to object to improper prosecution closing argument waived – rather than forfeited – any error.

Kelly is one of a number of recent cases in which the Army CCA reaches the same remarkable conclusion. See United States v. Burris, No. 20150047 (A. Ct. Crim. App. Jul. 28, 2017) (link to slip op.); United States v. Sanchez, No. 20140735 (A. Ct. Crim. App. Jul. 17, 2017) (link to slip op.); United States v. Marcum, No. 20150500 (A. Ct. Crim. App. May 5, 2017) (link to slip op.). The CCA also reached the same conclusion for improper sentencing argument in United States v. Hoffman, __ M.J. __, No. 20140172 (A. Ct. Crim. App. Jun. 27, 2017) (link to slip op.).

Errors are preserved by timely objections, and an appellant is entitled to relief from a preserved error (unless it is harmless). Waiver of an error means that there is no error to correct on appeal and an appellant is not entitled to any relief (though a CCA may, nevertheless, grant relief). But waiver is the intentional relinquishment or abandonment of a known right. The mere failure to make a timely objection, however, usually forfeits any error, and an appellant is entitled to relief from a forfeited error upon showing that the error was plain, obvious, and prejudicial (the plain error test).

The Army CCA’s conclusion in Kelly that failure to object to improper closing argument waives – rather than merely forfeits – the error is remarkable because CAAF’s precedent (and the CCA’s own practice) clearly state the opposite. Writing for the en banc CCA, Judge Wolfe finds that:

R.C.M. 919(c) governs argument on findings. The rule states: “[f]ailure to object to improper argument before the military judge begins to instruct the members on findings shall constitute waiver of the objection.” R.C.M. 919(c). The rule has no “plain error” condition.

Kelly, __ M.J. at __, slip op. at 6. CAAF, however, has long held that:

Despite the language of “waiver” in RCM 919(c), Manual for Courts-Martial, United States (1995 ed.), we have repeatedly held that where there is no defense objection to the prosecution’s argument, we review for plain error. See United States v. Carpenter, 51 MJ 393, 396 (1999); United States v. Sweeney, 48 MJ 117, 121 (1998); cf. United States v. Causey, 37 MJ 308, 312 (CMA 1993) (Sullivan, J., concurring).

United States v. Diffoot, 54 M.J. 149, 151 n.1 (C.A.A.F. 2000). Judge Wolfe’s opinion in Kelly does not acknowledge (or even cite) CAAF’s decision in Diffoot.

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In the certified Army case of United States v. Mitchell, No. 17-0153/AR (CAAFlog case page), CAAF is considering the impact of investigators questioning a military suspect, after he invoked his right to remain silent and requested an attorney, in order to gain access to the suspect’s cell phone for a search. The case was argued at the Notre Dame Law School on Tuesday, April 4, 2017. It is one of just three remaining undecided cases argued during the October 2016 Term.

Back in June, in this post, I noted a pair of Air Force CCA decisions – one published and the other involving a Government appeal of a suppression ruling – that held that a “request for the passcode d[oes] not constitute interrogation in violation of the Fifth Amendment.” United States v. Robinson, __ M.J. __, __, No. 38942, slip op. at 11 (A. F. Ct. Crim. App. May 15, 2017). See also United States v. Blatney, No. 2016-16, slip op. at 7 (A. F. Ct. Crim. App. May 22, 2017) (interlocutory appeal) (“In other words, whether agents or the suspect re-initiated communication only becomes relevant if the suspect ultimately communicated an incriminating statement to the agents.”).

The accused in Blatney (the interlocutory case) petitioned CAAF for review on June 14. Last Thursday CAAF granted review:

No. 17-0458/AF. U.S. v. Chad A. Blatney. CCA 2016-16. 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 hereby granted on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION BY SUPPRESSING EVIDENCE OBTAINED FROM APPELLANT’S CELLULAR PHONE, WHERE LAW ENFORCEMENT REQUESTED THAT APPELLANT ENTER HIS PASSWORD TWICE TO DECRYPT THE PHONE AND DISABLE SECURITY AFTER HE INVOKED HIS RIGHT TO COUNSEL.

Pursuant to Rule 19(a)(7)(A), no further pleadings will be file.

The post-trial appellant in Robinson petitioned CAAF for review on July 12, 2017. That petition is still pending.

I’ve just moved CAAFlog to a new server (again) to resolve DoD network access issues. We’re now hosted on Amazon AWS. The move is complete and should be transparent to you (this post was written on the new server).

Those who were unable to access the site from DoD computers since our last move should see access restored within a few hours. Thank you to our readers who helped me identify the problem.

As always, please contact me (Zack@CAAFlog.com) if you can’t access CAAFlog.

Here is Washington Post coverage (alternate link) of an $8.5 million jury award in a defamation case brought by retired Army Col. David Riggins against Susan Shannon who, in 2013, alleged that Riggins raped her in 1986 when they were both cadets at the United States Military Academy (West Point). The allegation was investigated by Army CID, and Riggins was subsequently removed from the promotion list for brigadier general.

After Shannon made her claim, Riggins told investigators that he had a consensual sexual relationship with her while at the Academy but he denied assaulting her:

The CID also contacted Riggins. A report in court records shows that Riggins described a consensual sexual encounter with Shannon after a Halloween party in 1983, and a short relationship with an amicable breakup. Riggins said he had no significant contact with her in 1986. In Washington state, Shannon told investigators there was no sex or relationship in 1983, only a rape after Riggins saw her staggering out of a pedestrian tunnel on campus in the spring of 1986. She claimed Riggins offered her a ride in his car, and that she had no memory of the actual assault, although she said Riggins “smugly admitted he did indeed rape” Shannon, according to a Fairfax court filing.

Riggins sued Shannon in Virginia, asserting:

that every aspect of her rape claim on the West Point campus was “provably false,” and that she wrote two blog posts and a Facebook post “to intentionally derail [his] promotion” to brigadier general. During a six-day trial that ended Aug. 1, a jury in Fairfax County, Va., heard from both Riggins and Shannon at length. And after 2½ hours of deliberation, they sided emphatically with Riggins, awarding him $8.4 million in damages, an extraordinary amount for a defamation case between two private citizens. The jury ordered Shannon to pay $3.4 million in compensatory damages for injury to his reputation and lost wages, and $5 million in punitive damages, “to make sure nothing like this will ever happen again,” according to one of the jurors.

A juror told the Post:

“Honestly,” said juror Marshall Reinsdorf, “we thought who was telling the truth was too obvious to be discussing. We held a vote, and everybody believed the colonel. The only argument was how big the damages were going to be.” Of the four women and three men on the jury, two other jurors declined to comment, two jurors did not return messages and two could not be reached.

This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court, where I’m tracking seven cases:

This week at CAAF: CAAF has completed its oral argument calendar for the term. A detailed list of this term’s cases is available on our October 2016 Term Page. The first oral argument date for the next term is October 10, 2017.

This week at the ACCA: The Army CCA’s website shows no scheduled oral arguments.

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

This week at the CGCCA: The Coast Guard CCA’s oral argument schedule shows no scheduled oral arguments.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on September 14, 2017.

Last week, this column featured an article from Professor Emeritus Edward J. Imwinkelried concerning the “disturbing” prevalence of bad science which has been permitted to come before the fact-finder in American criminal trials. This week’s column features an article exploring potential solutions to that problem. The Harvard Law Review, as part of its Modern Courts Commentary Series, recently published a commentary by William and Mary Law School Professor Allison Orr Larsen entitled Judicial Factfinding in an Age of Rapid Change: Creative Reforms from Abroad.

Read more »

Army Staff Sergeant (SSG) Robert Bales pleaded guilty at a general court-martial in 2013 to the murder of 16 Afghan civilians in 2012. The case had been referred capital, and his plea avoided the possibility of the death sentence. Bales received the maximum possible sentence of life without the possibility of parole.

In 2015, GQ magazine published this story about Bales based largely on post-conviction interviews of Bales that, according to the story, Bales hopes “will humanize him, and he hopes that one day in the hard-to-imagine future, as the wars fade from memory, someone will deem his sentence to be excessive, take mercy on him, and grant him a measure of clemency.”

The Army CCA will hear oral argument in Bales appeal tomorrow. Two issues are before the court:

I. [Whether Bales] is entitled to a new sentencing hearing because of the Government’s Brady violation, the Government’s fraud on the court-martial and the military judge’s exclusion of Mullah Baraan’s ties to IED evidence.

II. [Whether] the military judge erred by failing to hold a Kastigar hearing to determine the extent the military judge’s mistaken disclosure of Fifth Amendment protected information affected the sentencing hearing.

Both of these issues look to be wholly focused on Bales’ sentence, and neither appear to challenge his plea. The second issue probably involves the military judge’s erroneous disclosure of an unredacted copy of Bales’ R.C.M. 706 (sanity board) evaluation to the prosecution (noted here).

The first issue may also include a challenge to the safety of the widely-used anti-malaria drug mefloquine. According to this Seattle Times report published last week:

Defense attorneys are expected to argue that while on a 2003-2004 tour in Iraq, and possibly in Afghanistan in 2012, Bales took the antimalarial drug mefloquine, according to John Henry Browne, a Seattle attorney who has assisted in the soldier’s defense.

In July 2013, the FDA issued its strictest warning about mefloquine, noting the potential for long-term neurological damage and serious psychiatric side effects. The defense team did not raise Bales’ possible use of the drug during sentencing proceedings the next month.

Defense attorneys now hope the drug issue can persuade a three-judge panel to lessen his sentence.

This week at SCOTUS: A cert. petition was filed in Bartee v. United States, No. 17-175 on July 28, 2017. In United States v. Bartee, 76 M.J. 141 (C.A.A.F. Mar. 15, 2017) (CAAFlog case page), a majority of CAAF concluded that there was no systemic exclusion of court-martial members on the basis of rank despite the fact that the convening order duplicated an earlier order that was found to have systemically excluded.

The Solicitor General received a second extension of time to respond to the cert. petition in Alexander. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking seven cases:

This week at CAAF: CAAF has completed its oral argument calendar for the term. A detailed list of this term’s cases is available on our October 2016 Term Page. The first oral argument date for the next term is October 10, 2017.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Tuesday, August 8, 2017, at 10 a.m.:

United States v. Bales, No. 20130743 (CAAFlog news page)

I. [Appellant] is entitled to a new sentencing hearing because of the Government’s Brady violation, the Government’s fraud on the court-martial and the military judge’s exclusion of Mullah Baraan’s ties to IED evidence.

II. The military judge erred by failing to hold a Kastigar hearing to determine the extent the military judge’s mistaken disclosure of Fifth Amendment protected information affected the sentencing hearing.

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

This week at the CGCCA: I can’t access the Coast Guard CCA’s oral argument schedule.

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

The UC Davis Legal Studies Research Paper Series recently released an article entitled Revising State Post-Conviction Relief Statutes to Cover Convictions Resting on Subsequently Invalidated Expert Testimony by former Army JAG, and prominent evidence law scholar, Professor of Law Emeritus Edward J. Imwinkelried.  The article posits:

Invalid expert testimony has become a disturbingly recurrent theme in the wrongful conviction studies.

Id. at 3.

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In a series of posts (here, here, and here) in May and June we discussed the case of Senior Chief Barry, U.S. Navy, who was convicted of one specification of sexual assault in violation of Article 120, and sentenced to confinement for three years and a dishonorable discharge. The convening authority – Rear Admiral Patrick J. Lorge (now retired) – approved the findings and sentence, the NMCCA affirmed in an opinion available here, and CAAF summarily affirmed on April 27, 2017. But after CAAF acted, the Admiral signed an affidavit alleging that he really wanted to disapprove the finding of guilty but the then-Judge Advocate General of the Navy and her deputy (the current JAG) persuaded him not to do so because it would be bad public relations for the Navy and hurt Lorge’s career.

That allegation prompted CAAF to reverse its summary affirmation and grant review of “whether senior civilian and military leaders exerted unlawful command influence on the convening authority.” CAAF also ordered post-trial fact-finding.

That fact-finding is underway. According to this report published by the San Diego Union-TribuneVice Admiral Crawford (the current JAG) gave a deposition this week and, according to Barry’s civilian defense counsel, “Crawford has confirmed that he discussed the case with Lorge. Crawford also disclosed the existence of documents and messages exchanged at the highest levels of the Navy about Barry.”

But the report also raises a new allegation: that Vice Adm. Crawford pushed for a prosecution in a different case involving the 2016 drowning death of a special operations candidate, Seaman James Derek Lovelace. Barry was also a member of the special operations community, but was not (best I can tell) involved in any way in the death of Lovelace.

The Union-Tribute reports that:

Word that the Union-Tribune had received records in both the Barry and Lovelace cases triggered numerous, sometimes frantic, calls from top Navy officials nationwide on Monday and Tuesday, with flag officers or their representatives inquiring into Crawford’s involvement in both matters.

It’s certainly not unusual for a JAG or other senior military attorneys to get involved in serious cases, to form opinions about whether prosecution is warranted, and to take action consistent with their opinions. Article 34, in fact, requires them to do precisely that. The emerging claim from the Barry and Lovelace cases, however, seems to be that Vice Adm. Crawford has – and acts on – a pro-prosecution bias.

Paradoxically, at the end of the Union-Tribune article that claim is offered as a justification to give lawyers more power in the military justice system:

Eugene R. Fidell, the military law instructor at Yale Law School, said both cases possibly linked to Crawford were very unusual but pointed out the need for broader reforms to the way the armed forces dispense justice.

“These cases illustrate that Congress needs to get serious about the military justice system and turn it from an 18th century system into one fit for the 21st century,” said Fidell. “Military decisions on who gets prosecuted, and for what, are based on a system that was used by King George III. Until that changes, you’ll continue to see controversies like these.”

Fidell has long advocated for lawmakers to strip commanders of the power to decide who is prosecuted, to pick jurors and to vacate verdicts and sentences, vesting charging authority instead with senior attorneys independent of the chain of command and jury selection with an outside and impartial commissioner.

CAAF docketed two new cases on Monday.

First, the Judge Advocate General of the Navy certified Hale, which I discussed here. The NMCCA reversed Hale’s convictions, and authorized a rehearing, because of a conflict of interest between his lead military defense counsel (a Marine captain, identified as Capt KC), her husband (another Marine captain, who was assigned as a trial counsel but not otherwise involved in the case, identified as Capt CC), and the prosecutor (a Marine lieutenant colonel, who was the regional trial counsel and supervised the husband, identified as LtCol CT). The JAG wants CAAF to review the legal test employed by the CCA:

No. 17-0537/MC. United States, Appellant v. James A. Hale, Appellee. CCA 201600015. Notice is hereby given that a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 on this date on the following issue:

WHAT IS THE CORRECT TEST WHEN ANALYZING AN INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM BASED UPON A CONFLICT OF INTEREST NOT INVOLVING MULTIPLE REPRESENTATION.

Appellant will file a brief under Rule 22(b) in support of said certificate on or before the 30th day of August, 2017.

The CCA held “that where an appellant demonstrates that his counsel labored under an actual conflict of interest, and where the conflict had an adverse effect on the counsel’s performance, the appellant is entitled to a presumption of prejudice.” Slip op. at 13 (emphasis added).

Second, CAAF granted review in Mangahas, which I previously discussed here. The Air Force CCA granted a Government appeal and reversed a military judge’s ruling that dismissed a charge of rape with prejudice. The dismissal was granted after the military judge found that pre-preferral delay deprived the accused of due process in violation of the Fifth Amendment. CAAF will review the CCA’s decision:

No. 17-0434/AF. U.S. v. Edzel D. Mangahas. CCA 2016-10. On consideration of the 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, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE LOWER COURT ERRED IN FINDING NO DUE PROCESS VIOLATION WHEN THE GOVERNMENT WAS INACTIVE FOR OVER 17 YEARS BEFORE INVESTIGATING A CLAIM OF RAPE, VIOLATING LTCOL MANGAHAS’ FIFTH AMENDMENT RIGHT TO A SPEEDY TRIAL.

Pursuant to Rule 19(a)(7)(A), no further pleadings will be filed.