The Army JAG School has published a new issue of the Military Law Review. Here's a link.
Of greatest interest to those of us who spend most of each day obsessing over military justice is an article critical of Military Rule of Evidence 412. MAJ Shane R. Reeves, Time to Fine-Tune Military Rule of Evidence 412, 196 Mil. L. Rev. 47 (2008). Here's a link to the individual article.
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Saturday, September 06, 2008
Update
Greetings from the northern edge of Tropical Storm Hanna. We have quite a lot to note this weekend: (1) a new issue of the Military Law Review; (2) a couple of CAAF grants; (3) the imminent return of congressional consideraton of the Equal Justice for United States Military Personnel Act; and (4) a couple of upcoming training opportunities.
Friday, September 05, 2008
BG Hartmann Removed From Another Case
The prickly, controversial Legal Advisor to the Convening Authority, Brig. Gen. Hartmann, is in the news again.
According to a story today in the Miami Herald, military commissions judge Colonel Patrick J. Parrish barred Hartmann from acting as the legal advisor in the case of United States v. Omar Khadr. The Herald reports that Colonel Parrish found that Hartmann appeared to have lost his neutrality and that there is a perception that he favors the prosecution.
This is the third military commissions’ judge, in as many cases, to find that Hartmann has abused his role as the Legal Advisor. Hartmann was previously slapped down by two separate judges in the Hamdan case and the Jawad case.
It seems to me that the trend of judges slapping Hartmann down will continue, and for good reason. Judge Keith Allred, the judge in the Hamdan case, held a hearing about Hartmann’s behavior, and, as a result of that hearing, issued devastating findings of fact and conclusions of law against Hartmann. You can’t ignore the record.
It is quite possible that every case that Hartmann touches will create a big fat hanging curve ball of an appellate issue. If that is true, and many think that it is, then what value is there in keeping him in the position as Legal Advisor?
In the past (NPR’s Diane Rehm show on July 22, 2008) I have called for Hartmann to be thanked and excused - - -fired - - from his present position. He is a legal liability, a burden on the commissions process itself. I still believe that he should be relieved of his duties.
As an alternative to firing Hartmann, they could bi-furcate the role of the Legal Advisor, since the Legal Advisor wears two hats. Hartmann could wear one hat; the one he has most closely associated himself with---that of energizing, educating, and working closely with the Chief Prosecutor (but not stepping on the independence of the Chief Prosecutor, or micromanaging the prosecution’s efforts). The other hat should go to the new co-Legal Advisor, who would dispense independent legal advice to the Convening Authority. It’s not perfect, but it might work.
According to a story today in the Miami Herald, military commissions judge Colonel Patrick J. Parrish barred Hartmann from acting as the legal advisor in the case of United States v. Omar Khadr. The Herald reports that Colonel Parrish found that Hartmann appeared to have lost his neutrality and that there is a perception that he favors the prosecution.
This is the third military commissions’ judge, in as many cases, to find that Hartmann has abused his role as the Legal Advisor. Hartmann was previously slapped down by two separate judges in the Hamdan case and the Jawad case.
It seems to me that the trend of judges slapping Hartmann down will continue, and for good reason. Judge Keith Allred, the judge in the Hamdan case, held a hearing about Hartmann’s behavior, and, as a result of that hearing, issued devastating findings of fact and conclusions of law against Hartmann. You can’t ignore the record.
It is quite possible that every case that Hartmann touches will create a big fat hanging curve ball of an appellate issue. If that is true, and many think that it is, then what value is there in keeping him in the position as Legal Advisor?
In the past (NPR’s Diane Rehm show on July 22, 2008) I have called for Hartmann to be thanked and excused - - -fired - - from his present position. He is a legal liability, a burden on the commissions process itself. I still believe that he should be relieved of his duties.
As an alternative to firing Hartmann, they could bi-furcate the role of the Legal Advisor, since the Legal Advisor wears two hats. Hartmann could wear one hat; the one he has most closely associated himself with---that of energizing, educating, and working closely with the Chief Prosecutor (but not stepping on the independence of the Chief Prosecutor, or micromanaging the prosecution’s efforts). The other hat should go to the new co-Legal Advisor, who would dispense independent legal advice to the Convening Authority. It’s not perfect, but it might work.
Thursday, September 04, 2008
New AFCCA published opinion
A recurring issue in Air Force appellate litigation is whether the SJAR must advise the CA of an accused's request to participate in the Return-to-Duty Program. In a decision issued yesterday, AFCCA basically ruled (and I'm paraphrasing here): No, and we're publishing this opinion so you'll stop asking. United States v. Taylor, __ M.J. ___, No. ACM 37012 (A.F. Ct. Crim. App. Sept. 3, 2008). Here's a link. Judge Jackson wrote for a unanimous panel.
The opinion referred to three previous AFCCA unpublished opinions reaching the same result, but noted that they carry "no precedential weight." Id., slip op. at 3. AFCCA didn't tell us how it feels about the precedential weight of unpublished Delaware Court of Chancery opinions or Seinfeld episodes. (If you have no idea what I'm talking about, see here.)
The opinion referred to three previous AFCCA unpublished opinions reaching the same result, but noted that they carry "no precedential weight." Id., slip op. at 3. AFCCA didn't tell us how it feels about the precedential weight of unpublished Delaware Court of Chancery opinions or Seinfeld episodes. (If you have no idea what I'm talking about, see here.)
Air Force Times Article on Hard Labor
Interesting Air Force Times article, here, on the merits of hard labor as a punishment. I awarded hard labor as a summary court-martial officer, so you probably know where I once stood on the issue. But, considering this article . . . I may have some more thoughts tonight.
Navy Detention Camp Cases Postponed
Since CAAF news is slow, even delays in courts-martial can be news. The Navy Times reported that the Art. 32 hearing in the case of a Navy guard from a detention facility in Camp Bucca, Iraq, who allegedly assaulted Iraqi detainees held at Camp Bucca, will be postponed until October. We previously reported on this and 12 other cases stemming from an incident at Camp Bucca on May 14, 2008, here. According to Navy Times, the accused facing the Article 32 hearing is a Navy Chief. The report said that the convening authority also postponed summary and special courts-martial for five other "lower-ranking personnel."
Wednesday, September 03, 2008
Yadda, yadda and the law
Nothing visible seems to have happened in military appellate justice today, so I'll note a recent opinion by the Maryland Court of Appeals in a case arising from the demise of Tom Clancy's (yes, THAT Tom Clancy) marriage. Clancy v. King, __ Md. ___, No. 112 (Aug. 26, 2008). (Here's a link.) This post is about a resulting pop culture reference in a judicial opinion. But it's not a Jack Ryan reference; it is, of all things, a Seinfeld reference.
He and his former wife were in a limited partnership for the purpose of writing, publishing, and selling books. The better the partnership did, the more money the former Mrs. Clancy made. Five years after the couple's divorce was final, Tom Clancy removed his name from the Op-Center series of books, which generated income for the partnership. By removing his name from the books, Clancy automatically reduced the partnership's percentage of the books' income. And removing his name was likely to reduce the total size of the pie as well as the partnership's percentage of the pie. The decision, therefore, was likely to cost the partnership a considerable sum.
The former Mrs. Clancy brought suit to try to restore Tom Clancy's name to the series, thus likely restoring the previous size of the partnership's income stream. The Charles County Circuit Court adjudged a verdict in favor of the former Mrs. Clancy. Maryland's intermediate appellate court generally affirmed the circuit court's ruling and the Maryland Court of Appeals then granted cert.
By a 5-2 vote, the resulting opinion handed Tom Clancy a do-over. But the case is interesting because of a couple of footnotes in Judge Harrell's majority opinion. First, in footnote 17, Judge Harrell tells us, "Although the citation of unreported opinions (Maryland or otherwise) ordinarily is not appropriate, this is an unusual situation." He then cites an unpublished Delaware Court of Chancery opinion. This is amusing because in footnote 27, Judge Harrell cites a sitcom. To illustrate the point that "[o]ne certainly breaches the promise of good faith owed in contract and as fiduciary in a partnership by working actively to decrease directly the profits of the business venture," Judge Harrell offers the following:
I'm going to see Seinfeld doing stand up in Baltimore this weekend. Now I'll be scanning the audience looking for Judge Harrell.
He and his former wife were in a limited partnership for the purpose of writing, publishing, and selling books. The better the partnership did, the more money the former Mrs. Clancy made. Five years after the couple's divorce was final, Tom Clancy removed his name from the Op-Center series of books, which generated income for the partnership. By removing his name from the books, Clancy automatically reduced the partnership's percentage of the books' income. And removing his name was likely to reduce the total size of the pie as well as the partnership's percentage of the pie. The decision, therefore, was likely to cost the partnership a considerable sum.
The former Mrs. Clancy brought suit to try to restore Tom Clancy's name to the series, thus likely restoring the previous size of the partnership's income stream. The Charles County Circuit Court adjudged a verdict in favor of the former Mrs. Clancy. Maryland's intermediate appellate court generally affirmed the circuit court's ruling and the Maryland Court of Appeals then granted cert.
By a 5-2 vote, the resulting opinion handed Tom Clancy a do-over. But the case is interesting because of a couple of footnotes in Judge Harrell's majority opinion. First, in footnote 17, Judge Harrell tells us, "Although the citation of unreported opinions (Maryland or otherwise) ordinarily is not appropriate, this is an unusual situation." He then cites an unpublished Delaware Court of Chancery opinion. This is amusing because in footnote 27, Judge Harrell cites a sitcom. To illustrate the point that "[o]ne certainly breaches the promise of good faith owed in contract and as fiduciary in a partnership by working actively to decrease directly the profits of the business venture," Judge Harrell offers the following:
Okay, note to file: unpublished opinions (except for the odd Delaware Court of Chancery decision) out; Seinfeld quotes in.Jerry Seinfeld, perhaps an unlikely legal illustrator, once epitomized the duty of good faith in contract. In an episode of his television show, Jerry's character purchased a jacket at a men's clothing shop. The terms of the contract permitted Jerry to return the item for refund at his discretion. When Jerry attempted to return the jacket after an unrelated personal quarrel with the salesman, the following discussion took place.
Jerry: Excuse me, I'd like to return this jacket.
Clerk: Certainly. May I ask why?
Jerry: For spite.
Clerk: Spite?
Jerry: That's right. I don't care for the salesman that sold it to me.
Clerk: I don't think you can return an item for spite.
Jerry: What do you mean?
Clerk: Well, if there was some problem with the garment. If it were unsatisfactory in some way, then we could do it for you, but I'm afraid spite doesn't fit into any of our conditions for a refund.
Jerry: That's ridiculous, I want to return it. What's the difference what the reason is? Clerk: Let me speak with the manager . . . excuse me . . . Bob!
(walks over to the manager and whispers)
Bob: What seems to be the problem?
Jerry : Well, I want to return this jacket and she asked me why and I said for spite and now she won't take it back.
Bob: That's true. You can't return an item based purely on spite.
Jerry: Well, so fine then . . . then I don't want it and then that's why I'm returning it.
Bob: Well you already said spite so . . . .
Jerry: But I changed my mind.
Bob: No, you said spite. Too late.
Seinfeld: The Wig Master (NBC original television broadcast 4 April 1996).In attempting to exercise his contractual discretion out of "spite," Jerry breached his duty to act in good faith towards the other party to the contract. Jerry would have been authorized to return the jacket if, in his good faith opinion, it did not fit or was not an attractive jacket. He may not return the jacket, however, for the sole purpose of denying to the other party the value of the contract. Jerry's post hoc rationalization that he was returning the jacket because he did not "want it" was rejected properly by Bob as not credible.
I'm going to see Seinfeld doing stand up in Baltimore this weekend. Now I'll be scanning the audience looking for Judge Harrell.
MEJA and Blackwater: A Question of Jurisdiction
Assuming the Washington Post is correct, it appears that the Department of Justice may be close to indicting some Blackwater security guards for a shooting that happened last year in Iraq.
The DOJ would bring charges under the Military Extraterritorial Jurisdiction Act (MEJA).
The Congressional Budget Office issued a report recently about the use of contractors in Iraq. In that report, the CBO said, amongst other things, that “MEJA does not apply to civilians working…for federal departments or agencies other than DOD.”
The Blackwater security guards were working as security contractors for the Department of State.
Some argue that MEJA does not cover the Blackwater security guards, and thus DOJ cannot bring charges against the guards for the alleged incident last year in Iraq. Others argue that the 2005 amendment to MEJA expanded its’ provisions to include contractors “supporting the mission of the Department of Defense,” and thus the contractors are subject to prosecution under MEJA.
What do you think?
The DOJ would bring charges under the Military Extraterritorial Jurisdiction Act (MEJA).
The Congressional Budget Office issued a report recently about the use of contractors in Iraq. In that report, the CBO said, amongst other things, that “MEJA does not apply to civilians working…for federal departments or agencies other than DOD.”
The Blackwater security guards were working as security contractors for the Department of State.
Some argue that MEJA does not cover the Blackwater security guards, and thus DOJ cannot bring charges against the guards for the alleged incident last year in Iraq. Others argue that the 2005 amendment to MEJA expanded its’ provisions to include contractors “supporting the mission of the Department of Defense,” and thus the contractors are subject to prosecution under MEJA.
What do you think?
Tuesday, September 02, 2008
Denedo watch
For those of you who plan to track the Acting SG's cert petition in Denedo with the same intensity that Al Roker tracked Gustav, its docket number is No. 08-267 (Denedo's that is, not Gustav's). Here's a link to its docket page, which is updated each business day at 1100.
Monday, September 01, 2008
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