June Army Lawyer online

The June issue of the Army Lawyer is now available online here. Almost half the issue is devoted to Army DAD own MAJ Grace M. W. Gallagher's article, Don't Panic! Rehearings and DuBays Are Not the End of the World, Army Law., June 2009, at 1.

Also of potential interest to military justice wonks is Douglas A. Dribben's article, Damage to Rental Cars, Army Law., June 2009, at 43.

Volume 57 of Naval Law Review now online

Volume 57 of the Naval Law Review, the 2009 issue, is now available here. There are a couple of articles of interest to military justice wonks. I've started, but haven't yet finished, reading this fascinating article: Maj John M. Hackel, Planning for the "Strategic Case": A Proposal to Align the Handling of Marine Corps War Crimes Prosecutions with Counterinsurgency Doctrine, 57 Naval L. Rev. 239 (2009). The issue also includes this article advocating revisions to the MCM to allow greater use of videoteleconferencing in presenting testimony at courts-martial: Maj Nicole K. Hudspeth, Remote Testimony and Executive Order 13430: A Missed Opportunity, 57 Naval L. Rev. 285 (2009).

Air Force military justice scholarship galore

New issues of both the Air Force Law Review and the Reporter have been published and both feature military justice content.

The first 2009 issue of the Air Force Law Review is available here. The lead article is a piece by Col Mark L. Allred, the Chief Trial Judge of the Air Force Pacific Judiciary Region, about depositions, VTC testimony, and even VTC videotaped depositions, using the court-martial case of United States v. Savard to explore these concepts. [DISCLAIMER: I'm the appellate defense counsel in the Savard case.] Col Mark L. Allred, Depositions and a Case Called Savard, 63 A.F. L. Rev. 1 (2009).

The second article is Maj Christopher Morgan's treatise on multiplicity and unreasonable multiplication of charges. Maj Christopher S. Morgan, Multiplicity: Reconciling the Manual for Courts-Martial, 63 A.F. L. Rev. 23 (2009). Maj Morgan is a professor in the Air Force Academy's Department of Law. I haven't been able to convince myself to spend part of my weekend reading a 50-page article on multiplicity. I'll plow through it next week and note anything significant that I find.

The Spring 2009 issue of the Reporter, available here, includes Maj Brian Thompson's argument against eliminating the members sentencing option. Maj Brian M. Thompson, Judge-Only Sentencing: Judicial Power Grab?, Reporter, Spring 2009, at 12.

The issue also includes a "Military Justice Pointer," noting that neither the DOD nor Air Force regulations governing sex offender registry have been amended to reflect the revisions to Article 120. Lt Col Eric Mejia, Art 120 and the Sex Offender Registry, Reporter, Spring 2009, at 17. The article notes that "DODI 1325.7 and AFI 51-201 are in the process of being amended." Id.

The issue also includes a case note on the United States v. Murphy court-martial and appeal. Lt Col Beth A. Townsend, Military Rule of Evidence 505(i): Defining the "Interests of Justice," Reporter, Spring 2009, at 19. The article is accompanying by a sidebar reporting the results of the Murphy trial. Id. at 21. [DISCLAIMER: I was an appellate defense counsel in the Murphy case.]

The issue also includes a piece by the Air Force's Chief Appellate Government Counsel using NMCCA's unpublished decision in United States v. Wilson, No. NMCCA 200102056 (N-M. Ct. Crim. App. Feb. 7, 2006), as a cautionary tale demonstrating the need for meticulously accurate convening authority's actions. Maj Jeremy S. Weber, Convening Authority Actions: Why It's More Important than Ever to Get Them Right, Reporter, Spring 2009, at 22.

Finally, whose picture is that on page 34 of the Reporter?

Book review of Joshua Kastenberg's Winthrop biography

We've previously noted the publication of Air Force Lt Col Joshua Kastenberg's biography of Colonel Winthrop. NIMJ has posted this review of the book.

Military justice scholarship alert

Air Force Lieutenant Colonel Joshua Kastenberg, the author of the recent biography of Colonel Winthrop that is now in the CAAFlog library, has published the following article: A Sesquicentennial Historic Analysis of Dynes v. Hoover and the Supreme Court's Bow to Military Necessity: From its Relationship to Dred Scott v. Sandford to its Contemporary Influence, 39 U. Mem. L. Rev. 595 (2009).

Bio of Colonel Wintrhrop published

A biography of Colonel Winthrop by Air Force judge advocate Joshua E. Kastenberg has been published. Ordering information from Barnes & Noble is available here. (I just ordered a copy for myself.)

The book is called The Blackstone of Military Law : Colonel William Winthrop.

The publisher provides this description:

Colonel William Winthrop singularly was the most influential person in developing the military law of the United States. A half century ago, the Supreme Court tendered to Winthrop the title, "The Blackstone of Military Law," meaning simply that his influence outshone all others. He has been cited over 20 times by the highest court and well over a 1,000 times by other federal courts, state courts, and legal texts. In this, he surpasses most other legal scholars, save Joseph Story, John Marshall, or Felix Frankfurter. But while biographies of each of these Supreme Court Justices have been written, there has been none to date on Winthrop.

The Blackstone of Military Law: Colonel William Winthrop is the first biography on this important figure in military and legal history. Written in both a chronological and thematic format, author Joshua E. Kastenberg begins with Winthrop's legal training, his involvement in abolitionism, his military experiences during the Civil War, and his long tenure as a judge advocate. This biography provides the necessary context to fully appreciate Winthrop's work, its meaning, and its continued relevance.

Timing is everything

LCDR Joseph Elred should win some sort of award for the timing of his article from last year's edition of the Naval Law Review: The Use of Force in Hostage Rescue Missions, 56 Naval L. Rev. 251 (2008).

Another Article 2(a)(10) article

Colonel Peter Masterton, whose scholarship I greatly respect, has published an article on Article 2(a)(10):

Colonel R. Peter Masterton, Court-Martial Jurisdiction Over Civilians in Contingency Operations: A New Twist, 35 N.E. J. on Crim. & Civ. Con. 65 (2009).

Article argues for enhanced criminal accountability of commanders whose subordinates commit war crimes

This article presents a "theoretical framework, rooted in expressivist conceptions of harm, for holding a commander criminally responsible for an atrocity of his subordinates. More specifically, this Article argues that, where a commander's failure to punish an atrocity of his troops can be read as an expression of his support for his subordinates' act or the message it conveyed, his failure comes to constitute part of the injury. As such, he may be held criminally liable for the atrocity, and not just for neglecting his duty to punish." Amy J. Sepinwall, Failures to Punish: Command Responsibility in Domestic and International Law, 30 Mich. J. Int'l L. 251, 255 (2009) (footnote omitted). The article includes a discussion of the Haditha courts-martial. Id. at 275-80.

Law review article by Army judge advocate on UCMJ jurisdiction over civilian contractors

Our horde of Article 2(a)(10) aficionados will want to look at this law review article:

Dan E. Stigall, An Unnecessary Convenience: The Assertion of the Uniform Code of Military Justice ("UCMJ") over Civilians and the Implications of International Human Rights Law, 17 Cardozo J. Int'l & Comp. L. 59 (2009).

The cult of Sir Cloudesley Shovell

First Sir Cloudesley gets his own Facebook page. Then JO'C names him CAAFlog's Most Valuable Commentator. Now he's quoted in a law review article. I'm not kidding. Look at footnote 88 in Major Tyesha E. Lowery's new Army Lawyer article, The More Things Change, the More They Stay the Same: Has the Scope of Military Appellate Courts’ Jurisdiction Really Changed since Clinton v. Goldsmith?, Army Law., March 2009, at 49, 54.

MAJ Lowery writes, "There is nothing precluding a former servicemember whose case is final under Article 76 from petitioning a court of criminal appeals for extraordinary relief." In support, she offers this footnote: "Posting of Cloudseley Shovell to CAAFlog, https://www.blogger.com/comment.g?blogID=34853720&postID=1877241590194968336 (June 23, 2008, 14:00 EDT) (Denedo 'opens the doors of the CCAs to all manner of extremely stale claims, because now CCAs have continuing jurisdiction over all cases meeting the Art. 66(b) threshold, no matter how old, no matter how thoroughly reviewed, and no matter how final. All you need is an appellant who is still alive.')."

[Alas, the article misspells the good admiral's name.]

Second half of the Army Lawyer's criminal law symposium now online

The March edition of the Army Lawyer, which includes the second half of the criminal law symposium, is now online here.

HUGE military scholarship news: Professor Baldus and colleagues examine the military death penalty

Professor David Baldus of the University of Iowa College of Law is a giant in the field of social science and the law. He was the lead author of the statistical study at issue in McCleskey v. Kemp demonstrating "a disparity in the imposition of the death sentence in Georgia based on the race of the murder victim and, to a lesser extent, the race of the defendant." McCleskey v. Kemp, 481 U.S. 279, 286 (1987).

Now Professor Baldus and his colleagues have turned their attention to the military death penalty system. They have authored a remarkable article that will be published in the University of Michigan Journal of Law Reform. Catherine M. Grosso, David C. Baldus & George G. Woodworth, The Impact of Civilian Aggravating Circumstances on the Military Death Penalty: Another Chapter in the Resistance of the Armed Forces to the Civilianization of Military Justice, 1984-2005, __ U. Mich. J. L. Reform __ (forthcoming). The article is now available here on the Social Science Research Network. [Unfortunately SSRN is down for the weekend, but it's scheduled to be up tomorrow at 0700 EDT.]

The article analyzes an interesting evolution in the use of the current military death penalty system, which was created in 1984. While early application of the current military death penalty (1984-1990) appeared relatively indifferent to a murder's military nexus, over time the military death penalty has come to be reserved almost exclusively for murder offenses that bear a strong connection to military good order and discipline, rather than simply serving as a military alternative to a civilian capital prosecution. The article documents this evolution -- which I hadn't recognized before reading the article -- and explores its implications. The article also includes a data-rich series of appendices that will no doubt be extremely valuable to both counsel litigating capital cases and legal scholars.

Spring 2009 Military Law Review now available

The Spring 2009 issue of the Military Law Review is now available here. Military justice wonks will be particularly interested in this article by Major Fansu Ku: From Law Member to Military Judge: The Continuing Evolution of an Independent Trial Judiciary in the Twenty-First Century, 199 Mil. L. Rev. 49 (2009).

Major Ku concludes that legislation providing for a permanent military judiciary is neither necessary nor desirable. She considers and rejects the proposal suggested by Professor Fred Lederer and then-LT Barbara Hundley in An Independent Military Judiciary--A Proposal to Amend the UCMJ, 3 Wm & Mary Bill of Rights J. 629 (1994). MAJ Ku argues that "current personnel practices indicate that military judges are unlikely to be influenced by their interests in future promotions and assignments." 199 Mil. L. Rev. at 62. To support this conclusion, she observes that "eligibility requirements preclude most Army Judge Advocates from applying for judgeships until late in their careers." Id. Additionally, "no concrete evidence supports a threat to military judges' independence, by TJAG or anyone else." Id. at 63.

She also rejects the notion that military judges should be removed from normal military personnel policies, arguing that "the status of military judges as commissioned officers in the armed forces is vital." Id. at 65. She makes an interesting argument that if military judges were cloistered away in judicial duties, Weiss might suggest that military judges' duties are no longer germane to being a military officer, thus possibly requiring a second appointment (which would have to be made by SECDEF or the President) to satisfy the Appointments Clause. Id. at 70 (citing Weiss v. United States, 510 U.S. 163 (1994)).

While rejecting major changes of the sort suggested by Professor Lederer, MAJ Ku points to several lesser changes that might be helpful in promoting the military judiciary's independence. She writes favorably of the Army's decision to grant military judges a fixed term of office by regulation. See id. at 71-74; see Army Regulation 27-10, Military Justice, ¶ 8-1.g (2002). This section of the article, however, appears to contain an error. MAJ Ku writes, "None of the other services currently provide for tenure or a fixed term of office for their judiciary." Id. at 73. But as the Air Force Court has observed, "the Coast Guard provides for 3-year assignments for military judges except when they are reassigned 'under the normal personnel assignment process based on the needs of the service.' Commandant Instruction M5810.1D, Military Justice Manual (17 Aug 2000), ¶ 6.E." United States v. Paulk, 66 M.J. 641, 642 n.2 (A.F. Ct. Crim. App.), petition denied, 67 M.J. 169 (C.A.A.F. 2008).

MAJ Ku also writes favorably about the Army's recently established judicial apprenticeship program. 199 Mil. L. Rev. at 74-77. She then offers the Navy JAG Corps' military justice litigation career track as a model to be emulated and discusses the Navy's judicial screening board and new position of Chief Judge of the Navy. Id. at at 78-83. She then discusses a proposal that the Code Committee is considering to expand military judges' contempt powers. Id. at 83-85. Finally, she sets out a possible career path for those who want to become Army military judges. Id. at 85-86.

Don't Ivy League law journals fact check?

The Court-Martial Trial Practice blog provided this link to a Yale Law Journal note on gangs in the military that I made the mistake of reading today. Gustav Eyler, Note, Gangs in the Military, 118 Yale L.J. 696 (2009).

As I've often disclosed in the past, I was one of the appellate defense counsel on the Quintanilla case, as were a couple of the other contributors to this blog. The military gang note discusses the Quintanilla case, making erroneous factual statements unsupported by the cited authority. The note includes the following passage:

The presence of gang members in the armed forces poses worrisome problems. In the military, gang members threaten unit order and compromise base security. A shocking example of this is found in the facts of United States v. Quintanilla, in which a Marine sergeant and self-proclaimed gang member shot his commanding officer and executive officer -- both lieutenant colonels -- and threatened to continue killing officers until his fellow gang members were released from confinement.

Id. at 704.

The Quintanilla case may tell us a lot about the dangers posed by untreated mentally ill Marines who self-medicate with excessive amounts of alcohol, but it doesn't tell us anything about military gang members for the simple reason that Sgt Quintanilla wasn't in a gang.

In support of its factual assertions about Quintanilla, the note cites four pages from CAAF's decision in the case (63 M.J. at 30-33) and two pages from NMCCA's decision in the case (60 M.J. at 854-55). None of these pages supports the assertion that Quintanilla was a "self-proclaimed gang member." None supports the assertion that he was a gang member at all. None provides any indication that he threatened to continue killing officers until his fellow gang members were released from confinement. I'm at a loss to understand how those statements could be printed in the Yale Law Journal without any supporting citation that verifies those factual claims.

The closest -- and this isn't close -- that the supporting footnotes come to the text's factual assertions is this quotation from NMCCA's opinion:

The appellant talked about why he shot the CO and XO, complaining that he wasn't treated well in the squadron and that he did it for his "brown brothers," or words to that effect. At one point, the appellant stood up, pulled down his coveralls, took off his undershirt, and displayed the tattoos that covered his upper body. One of the large tattoos read "Sureno," which the Government argued was a reference to Southern California gangs.

118 Yale L.J. at 704 n.45 (quoting 60 M.J. at 855).

While the author calls this "[a] particularly relevant section," absent from it are any assertions that Quintanilla proclaimed himself to be in a gang, that he was actually in a gang, or that he threatened to continue killing officers until his fellow gang members were released from confinement.

I don't expect the note's author to read the record of trial, but if he did, he would have been aware that even the government's own gang expert--who didn't mind embellishing, like when he falsely claimed to be an associate professor at U.C. Berkeley's Boalt Hall School of Law, R. at 244--repeatedly testified that there was no evidence that Quintanilla was or had ever been in a gang. See R. at 693, 694, 700, 703. As for that tattoo, if I had a large curly W tattooed on my back (and I'm not saying I don't), that wouldn't make me a member of the Washington Nationals. A defense gang expert testified that Quintanilla's tattoos were actually inconsistent with gang membership because his combination of tattoos might get him killed by a gang. R. at 730.

Again, I don't expect the author to know any of this material from the record. What I do expect the author to do is limit factual assertions to those that can be verified and to provide supporting citations. And that the author plainly failed to do. I also expect another student editor during the review process to compare the factual assertions in the note to the supporting citations and determine whether the factual statements are supported by the citations. That process appears to have broken down as well.

Harvard Journal of Law & Technology publishes article with obvious mistake about electronic access to military justice appellate opinions

The Harvard Journal of Law & Technology, which likes to go by the jaunty nickname JOLT, recently published this article. Katrina Fischer Kuh, Electronically Manufactured Law, 22 Harv. J.L. & Tech. 223 (2008). The article's thesis is that cognitive psychology principles suggest that conducting legal research electronically (i.e., using WESTLAW or LEXIS) will produce greater diversity in issue framing than will print-based legal research (i.e., principally using West's Digests) and that lawyers using electronic-based legal research media will unwittingly advance more meritless claims than will lawyers using print-based legal research media. Professor Kuh ably makes the case for these two conclusions and wins bonus points for quoting a metaphor based on Raiders of the Lost Ark. Id. at 266.

But the article starts out with an extraneous observation that includes an embarrassing error. Professor Kuh writes:

The recent furor following Kennedy v. Louisiana over the Supreme Court's failure to discover that the Uniform Code of Military Justice authorizes the death penalty for child rape underscores law's entanglement with the electronic medium. This oversight by litigants and the Court alike suggests a pitfall of electronic research. Researchers may have become dependent on the seemingly-inclusive "All Federal Cases" database; however, military cases do not appear in this database.

Id. at 224 (internal footnotes omitted).

"All Federal Cases" is, of course, a WESTLAW database abbreviated as ALLFEDS which DOES include military appellate cases. In fact, if you were to do a search for "Kennedy v. Louisiana" in the ALLFEDS database, one of the cases you would find is United States v. Rodriguez, 67 M.J. 110 (C.A.A.F. 209). And if you were to click on the information button next to the ALLFEDS database identifier, you would see that it includes cases from both West's Military Justice Reporter and the Lawyer Co-op's Court-Martial Reports. LEXIS's counterpart database, "Federal Cases, Combined," also includes military justice appellate opinions.

Aside from the obvious factual error that would have been discovered during the most basic fact-check, it isn't clear to me why the article is even talking about ALLFEDS when what the Supreme Court overlooked was a federal statute, not a military justice opinion. While there are a handful of military justice appellate opinions that mention the National Defense Authorization Act for Fiscal Year 2006, I would think that a search of a federal statutory database would be more relevant for present purposes than is a search of a federal case law database. And, of course, the federal statutory databases include the laws establishing and governing the military justice system.

So an article about electronic research includes an obvious error about the contents of a WESTLAW database in the first page of its text. Not a good start.

Which raises the question, what were the JOLT editors doing? Law is one of the few disciplines where the bulk of its journals are edited by students. In most other academic disciplines, the norm is peer-reviewed journals. The law's reliance on student edited journals is controversial. Among the critics of the student-edited journal is no less a legal luminary than Judge Posner (writing in a student-edited law review, of course). Richard A. Posner, The Future of the Student-Edited-Edited Law Review, 47 Stan. L. Rev. 1131, 1136 (1995). Two of the principal arguments advanced for letting students rather than, say, law professors serve as the gatekeepers of academic publications about the law are that journals serve an important educational function for those who serve on them and that published articles are more accurate a a result of the effort expended by a huge workforce of volunteer student labor dedicated to ensuring that every utterance in a student-edited law journal is correct. What happened here?

Part I of Army Lawyer's Military Justice Symposium already out

The Army Lawyer has moved its military justice symposium issues to February and March, which means that the first part is already available here. This issue has articles on self-incrim, confrontation and jurisdiction, crim law, and trial preparation.

This issue's foreword suggests that the March issue will include articles on panel selection, voir dire, challenges, discovery, and sentencing.

Vol. 62 of the Air Force Law Review online, with article about rehab evidence in sentencing

I think I saw a hard copy of Volume 62 of the Air Force Law Review at the Air Force JAG Corps' Keystone Conference in November. Now it's finally available online here.

Military justice practitioners will be interested in an article by Judge Charles E. Wiedie, Jr., of the Air Force Trial Judiciary, called Rehab Potential 101: A Primer on the Use of Rehabilitative Potential Evidence in Sentencing, 62 A.F. L. Rev. 43 (2008).

Any I-Law aficionados who have somehow stumbled across this blog will be interested in Captain Daniel P. Ridlon's article, Contractors or Illegal Combatants? The Status of Armed Contractors in Iraq, 62 A.F. L. Rev. 199 (2008).

(Anyone who's interested in reading the article on the impact of sales taxes on government procurement practices probably isn't among our highly elite readership.)

January 2009 Army Lawyer out -- with Article 125 article

Today the Air Force Court of Criminal Appeals heard a fascinating argument in which the government and the defense agreed that Marcum created an additional de facto element that must be satisfied in an Article 125 prosecution. The government, however, argued that that additional element didn't need to be satisfied in the Harvey case because his act of consensual, noncommercial, private same-gender oral sex charged under Article 133 rather than under Article 125. The argument should result in an interesting opinion.

Also today, with impecable timing, the January 2009 issue of the Army Lawyer went up on the web with a lead article about Article 125. Major Joel P. Cummings, Is Article 125, Sodomy a Dead Letter in Light of Lawrence v. Texas and the New Article 120?, Army Law., Jan. 2009, at 1. Here's a link.

Military justice practitioners will also be interested in the issue's article on military justice in a deployed setting, available here. Captain A. Jason Nef, Getting to Court: Trial Practice in Deployed Environment, Army Law., Jan. 2009, at 50.

Prosecution of civilian contractors publication

The No Man makes several appearances in this student publication: Ian W. Baldwin, Note, Comrades in Arms: Using the Uniform Code of Military Justice and the Military Extraterritorial Jurisdiction Act to Prosecute Civilian-Contractor Misconduct, 94 Iowa L. Rev. 287 (2008), which is available here.