More cases arising from theaters of operation

As Jurist reports, the Army Special Forces command issued this press release on Thursday announcing the arraignment of Master Sergeant Joseph D. Newell on charges alleging that he murdered an unidentified Afghani and then cut off one of his ears near Hyderabad, Afghanistan in March 2007.

The actual trial is currently scheduled to start on 7 January 2009.

Meanwhile, Stars and Stripes is reporting that the "Army on Tuesday charged three Germany-based soldiers with premeditated murder in connection with the deaths of Iraqi detainees from two separate incidents in early 2007." The article continues, "First Sgt. John E. Hatley, 40; Sgt. 1st Class Joseph P. Mayo, 27, and Sgt. Michael P. Leahy Jr., 26, all formerly assigned to 1st Battalion, 18th Infantry Regiment, were charged under the Uniform Code of Military Justice with one specification each of premeditated murder, conspiracy to commit premeditated murder and obstruction of justice, stemming from an incident in March or April 2007 in or near Baghdad, according to an Army statement."

General Hartmann gets a new job

Air Force Brigadier General Thomas W. Hartmann has been reassigned from his position as Legal Adviser to the Convening Authority for the Department of Defense Office of Military Commissions.

According to the Associated Press, Gen. Hartmann has been named to the newly created position of director of operations, planning and development for military commissions. Depending on the nature and extent of his involvement with future trials, the transfer for Hartmann -- who has been twice been ordered removed from post-trial participation in detainee cases and who was described variously by senior military officials involved in detainee matters as "abusive, bullying, and unprofessional," and a "cancer" -- may smooth the way for the prosecution of Gitmo detainees.

It is unclear, however, what part Gen. Hartmann will play in upcoming events at Guantanamo Bay, and defense counsel who were expected to give the general a starring role in various motions for relief may still have the opportunity to do so: according to the AP, Gen. Hartmann said he is proud of the way he has helped move the trials forward and intends to keep doing so in his new role.

Senate authorizes payments to servicemembers unjustly convicted by courts-martial

The Senate version of the National Defense Authorization Act for Fiscal Year 2009 includes an odd provision: completely discretionary authority for SECDEF or the service secretaries to pay "moneys" to "a member or former member of the armed forces [who] has suffered imprisonment as a result of an injustice or error of the Department of Defense or any of its employees acting in an official capacity following conviction by a court-martial." Senate Bill 3001, § 582.

Does anyone know who proposed this or what led to its inclusion in the bill?

U.S. district judge rejects personal jurisdiction challenge to MEJA prosecution

Steven Green is a former soldier being tried for war crimes in a capital case in the United States District Court for the Western District of Kentucky. He was allegedly involved in the rape of a girl and the murder of the girl and her family in Yousifiyah, Iraq. He was discharged from the Army in May 2006, arrested in Jun 2006, and then indicted on 16 counts in a Military Extraterritorial Jurisdiction Act prosecution.

Courtesy of Gene Fidell, here's a link to the district court's 28 August 2008 memorandum opinion rejecting Mr. Green's challenge to the court's personal jurisdiction to try him. United States v. Green, No. 5:06-CR-19-R (W.D. Ky. Aug. 28, 2008) (mem.).

MEJA provides that "[n]o prosecution may be commenced against a member of the Armed Forces subject to [the UCMJ] under this section unless -- (1) such member ceases to be subject to [the UCMJ]; or (2) an indictment or information charges that the member committed the offense with one or more other defendants, at least one of whom is not subject to [the UCMJ]." 18 U.S.C. § 3261(d). Mr. Green argued that he had never been properly discharged from the Army and so was ineligible to be prosecuted under MEJA since he was still subject to the UCMJ.

The district court disagreed in an opinion relying heavily on CAAF precedent. It held that the command intended to discharge Green and had actually done so.

CAAF specificies interesting evidentiary issues

On Tuesday, CAAF specified the following two issues:

I. WHETHER THE CIVILIAN POLICE DRUG SEIZURE REPORT IN THIS CASE IS A REPORT SETTING FORTH "MATTERS OBSERVED BY POLICE OFFICERS . . . ACTING IN A LAW ENFORCEMENT CAPACITY," AND, IF SO, WHETHER IT WAS PROPERLY ADMITTED UNDER M.R.E. 803(6) (BUSINESS RECORD EXCEPTION), WHEN IT WOULD NOT BE ADMISSIBLE UNDER M.R.E. 803(8) (PUBLIC RECORDS EXCEPTION). COMPARE, e.g., UNITED STATES v. OATES, 560 F.2d 45, 77-78 (2d Cir. 1977) (HOLDING THAT POLICE RECORDS THAT WOULD BE INADMISSIBLE UNDER THE PUBLIC RECORDS EXCEPTION AGAINST THE ACCUSED WOULD ALSO BE INADMISSIBLE UNDER ANY OTHER EXCEPTION TO THE HEARSAY RULE) WITH UNITED STATES v. HAYES, 861 F.2d 225, 1230 (10th Cir. 1988) (HOLDING THAT THERE IS NO LIMITATION TO THE BUSINESS RECORD EXCEPTION IF THE AUTHOR OF THE PROFFERED DOCUMENT TESTIFIES AT TRIAL).

II. IF THE MILITARY JUDGE ABUSED HER DISCRETION IN ADMITTING THE POLICE DRUG SEIZURE REPORT, WHETHER THE ERROR MATERIALLY PREJUDICED APPELLANT'S SUBSTANTIAL RIGHTS?

United States v. Clayton, __ M.J. ___, No. 08-0417/AR (C.A.A.F. Sept. 16, 2008).

I can't find ACCA's decision in the case.

Iraqi Detainee Murder Cases [UPDATED] Update

The NY Times and Stars and Stripes report that premeditated murder charges were preferred against 3 soldiers for the alleged killing of 4 Iraqi detainees in Baghdad in April 2007. The three soldiers were identified in Art. 32 hearings held last month as the shooters in the killings, see CAAFlog coverage here. Two of the three accused apparently are also accused of another Iraqi civilian murder. Stars and Stripes reports:

The Army also charged [First Sgt.] Hatley and [Sgt.] Leahy with premeditated murder and conspiracy to commit premeditated murder for a separate incident that occurred in or near Baghdad in early January 2007, according to the Army release. Leahy also faces a specification of accessory after the fact stemming from that incident.

Two other soldiers waived their Art. 32 hearings in relation to the same incident, one appearing before a court-martial on Thursday, as reported here. In other news, the Art. 32 hearing for Sgt. Warner, who is also accused of killing an Iraqi detainee in a separate incident, concluded this past weekend, as reported on JURIST.

UPDATE: Spc. Ramos, who we noted above was appearing before a court-martial today, apparently pled guilty in exchange for his testimony against the alleged shooters in the killing of 4 Iraqi detainees alongside a Baghdad canal in April 2007. Ramos was sentenced by an unidentified Army military judge. The government asked for 5 years and a DD; the defense asked for a reprimand; the judge awarded 7 months and a DD. According to news reports, here and here, Ramos' role in the killings was to "stand guard" in his HMMWV's gun turret while the three NCOs carried out the killings---how's that for a squid summary of Army stuff?

Supreme Court filings focus on military death penalty system

As discussed in this highly informative piece on SCOTUSblog, lawyers for Patrick Kennedy and the Acting SG filed the briefs today that the Supreme Court requested in Kennedy v. Louisiana to address whether the Supremes should rehear the case. Of course, the Acting SG said yes and Kennedy's lawyers said no. SCOTUSblog provides a great analysis of the implications of this for the Kennedy case itself. I'm more interested in the briefs' treatment of military law.

Kennedy's brief displayed unfamiliarity with the military justice system. Any number of military justice experts would have made themselves available to help Kennedy's counsel, but it's clear that no such assistance was accepted. Since petitioner's counsel knew that the Acting SG's brief would be prepared with the assistance of the DoD General Counsel's office -- and, in fact, two highly distinguished retired judge advocates had signed onto the Acting SG's previous motion for leave to file a brief in support of rehearing before also signing onto today's brief from the Acting SG -- why wouldn't petitioner's team have sought out reinforcements to keep from being outgunned on the military justice flank? For whatever reason, they didn't and it shows.

What is probably the most significant problem arises in the petitioner's brief's desuetude argument. The petitioner argues at one point that "[t]he military, to our knowledge, has not sought to impose the death penalty for rape in over forty years." Petitioner's Brief in Opposition at 3. The brief later argues, "The military last executed someone for rape in 1961, and it apparently has not even sought – let alone obtained – such a sentence since." Id. at 7-8. Wrong. As a published CAAF decision makes clear, the Navy sought the death penalty in a court-martial of a petty officer for rape and attempted murder in 1989. United States v. Straight, 42 M.J. 244, 247 (C.A.A.F. 1995). But because the members' finding of guilty to the death-eligible offense was not unanimous, id., death was no longer an authorized sentence after findings. Given that this information is available in a published opinion and was mentioned in a law review article published two years ago, see 189 Mil. L. Rev. 1, 13 n.45, it's surprising that petitioner's brief would make such a major mistake.

That large mistake is immediately followed by a smaller one. The brief states, "There are currently nine people on the military’s death row; all nine committed premeditated murder or felony murder." Petitioner's Brief in Opposition at 8. Again, wrong. If we are using "death row" to refer to a physical place in the United States Disciplinary Barracks, there are currently four men there. If we are using "the military's death row" to refer metaphorically to the number of servicemembers currently under a death sentence, then the actual number is five. (One person, Kenneth Parker, is under a military death sentence but is currently confined at Camp Lejeune.) Nine is the number of servicemembers currently under death sentences plus the number of servicemembers whose death sentences have been overturned but who might still be resentenced to death. The phrase "currently . . . on the military's death row" isn't descriptive of that more nuanced concept. It would have been easy to provide a completely accurate and more helpful statistic: all 15 servicemembers sentenced to death under the current military death penalty system were convicted of premeditated murder, felony murder, or both. No doubt had the petitioner's counsel consulted with a military justice expert, he or she would have steered them clear of such inaccuracies.

But wait; there's more. The brief seems to make a fairly major mischaracterization when it contends that "[t]he President's reaffirmation of death as a permissible punishment appears within the 800-plus-page Manual for Courts-Martial." Petitioner's Brief in Opposition at 9. Almost any military justice practitioner could have told petitioner's counsel that that's wrong. President Bush didn't reissue the MCM in toto in September 2007 with the rape amendments interspersed among more than 900 other pages of text. Rather, he issued an Executive Order with an annex that takes up 23 MCM pages that was devoted almost entirely to the new military rape statute. Especially since Congress had expressly authorized the President to choose whether to discontinue death as an authorized punishment for rape or rape of a child, the presidentially prescribed death penalty provision wasn't a needle in a haystack; it was a pitchfork in a hay bale.

The brief also features what seems to be an analytic lapse. The brief posits: "The important point for present purposes, however, is that this Court in Kennedy asked the right question – namely, whether petitioner is subject to the death penalty under federal law – and gave the right answer: he is not. Nothing more was, or is, required." Petitioner's Brief in Opposition at 7. But is that really what the Supremes do when they engage in jurisdictional nose counting? The question isn't whether Patrick Kennedy is subject to the death penalty under, say, Maryland law; he isn't -- not only because Maryland doesn't authorize a death sentence for rape of a child but also because Maryland has no jurisdiction over Patrick Kennedy's offenses. So the jurisdictional nose counting process doesn't ask how many jurisdictions can actually execute Patrick Kennedy for the particular offenses of which he was convicted; rather, it asks how many jurisdictions could execute someone who committed comparable offenses within that jurisdiction.

The brief suffers from minor problems as well, such as referring to the National Defense Authorization Act as an "appropriations bill," id. at 9, listing Article 120 of the UCMJ as a "Federal Rule" rather than a "Statutory Provision," id. at iv-v, and calling ¶45.f.(1) of Part IV of the MCM "Article 120(f)(1)." Id. at 3, 9 n.5. Again, had petitioner's counsel consulted with any competent military justice litigator, those would have been cleaned up.

Finally, the brief drops a footnote advancing what seems to be an untenable argument. Footnote 5 questions "whether the President’s continuation in Article 120(f)(1) [sic] of the Manual for Courts-Martial of the possibility of punishing rape with the death penalty is sufficient to authorize such punishment. The Uniform Code of Military Justice (UCMJ) provides that a court-martial may impose capital punishment only when 'the penalty of death [is] specifically authorized by this chapter.' 10 U.S.C. § 818 (emphasis added). Now that the NDAA has removed any reference to the death penalty from the UCMJ’s rape provisions, the UCMJ itself no longer 'specifically authorize[s]' such punishment." Id. at 9 n.5. That overlooks entirely the key provision in the National Defense Authorization Act for Fiscal Year 2006 that formed the basis for the rehearing petition. In that legislation, Congress stated:

Until the President otherwise provides pursuant to section 856 of title 10, United States Code (article 56 of the Uniform Code of Military Justice), the punishment which a court-martial may direct for an offense under section 920 of such title (article 120 of the Uniform Code of Military Justice), as amended by subsection (a), may not exceed the following limits:

(1) Subsections (a) and (b).-- For an offense under subsection (a) (rape) or subsection (b) (rape of a child), death or such other punishment as a court-martial may direct.

National Defense Authorization Act for Fiscal Year 2006, § 552(b), 119 Stat. 3136, 3264 (2006).

Since the President has not provided otherwise, this express statutory authorization for the death penalty is in force. This provision isn't trumped by Article 18; rather, to the extent that they are inconsistent the NDAA provision prevails over Article 18 because it is both the more specific and the more recent statute. See generally In re Northwest Airlines Corp., 483 F.3d 160, 168 (2d Cir. 2007).

By comparison, the Acting SG's brief was uneventful. Its treatment of zombie statutes is a bit problematic. The SG writes that "in Coker, the plurality's conclusion that capital punishment for the rape of an adult woman was unconstitutional accorded with Congress's silence on the subject at that time. See 433 U.S. at 593-596." Brief for the United States at 5. Of course, when the Supremes decided Coker v. Georgia in 1977, Article 120 of the UCMJ remained on the books with its provision that rape was punishable by death. The Acting SG attempts to escape from this inconvenient parallel to Kennedy by arguing: "In Coker, Congress was silent on the pertinent question because it had not reauthorized the death penalty for rape after this Court’s decision in Furman v. Georgia, 408 U.S. 238 (1972), which 'invalidated most of the capital punishment statutes in this country, including the rape statutes.' Coker, 433 U.S. at 593 (plurality opinion)." Id. at 5 n.2. He then concludes: "The Court thus has never held the death penalty unconstitutional for an offense for which Congress has authorized such punishment at the time of its decision." Id. at 5-6. But at the time of Coker, Congress had authorized death as a punishment for rape and no court had held that Furman invalidated the military death penalty system, though Justice Blackmun had noted in his Furman dissent that the case "jeopard[izes], perhaps, . . . the death penalty provisions in various Articles of the Uniform Code of Military Justice." Furman v. Georgia, 408 U.S. 238, 412 (1972) (Blackmun, J., dissenting). And, interestingly, the Supremes ultimately held that there was no necessity for congressional action to revive the military death penalty system post-Furman. See Loving v. United States, 517 U.S. 748 (1996).

The SG also seems to gild the lily by arguing that "Congress recently enacted legislation authorizing capital punishment for child rape by an overwhelming 374-to-41 vote in the House . . . and a voice vote in the Senate." Brief for the United States at 6. While that is literally correct, it would be silly to suggest that 374 members of the House were endorsing Section 552(b) of the bill. It seems improbable that 374 members of the House even knew that Section 552(b) was in the bill.

The Acting SG's brief also contains an ingenious argument that congressional legislation about the military justice system shouldn't be excluded from jurisdictional nose-counting in part because such legislation now applies to some civilians in contingency operational areas. Id. at 7.

The next step in the case will be the filing of Louisiana's reply brief, which is due by 1400 next Wednesday, 24 September. We'll look at that brief once it's filed. And then, SCOTUSblog tells us, the "Court is scheduled to consider the rehearing plea at its Conference on Monday, Sept. 29, the first of the new Term. That could mean some action might be known as early as Tuesday, Sept 30."

August Army Lawyer published

The August issue of the Army Lawyer is now online here. It includes a couple of articles of interest to military justice types:

Major Michael L. Kanabrocki, Revising United States v. Allen: Applying Civilian Pretrial Confinement Credit for Unrelated Offenses Against Court-Martial Sentences to Post-Trial Confinement Under 18 U.S.C. § 3585(b)(2), Army Law., Aug. 2008, at 1.

Colonel Louis J. Puleo, Bulletproof Your Trial: How to Avoid Common Mistakes that Jeopardize Your Case on Appeal, Army Law., Aug. 2008, at 53.

CAAF IAC GVR

Things are quiet tonight, on the eve of the term's first oral argument. I just have a bit of old business to report. Last Wednesday, CAAF granted review of an Army IAC case, summarily set aside ACCA's opinion and remanded the case for further proceedings during which the trial defense counsel is to provide an affidavit responding to the IAC allegations. United States v. Brasington, __ M.J. ___, No. 08-0479/AR (C.A.A.F. Sept. 11, 2008). As is all-too-typical with ACCA decisions, I can find neither electronic hide nor hair of its opinion that was set aside. Here's the issue that CAAF granted in the case:

WHETHER APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHERE THE TRIAL DEFENSE COUNSEL ALLEGEDLY PROVIDED INCOMPETENT ADVICE REGARDING THE LACK OF THE DEFENSE OF MENTAL RESPONSIBILITY.

CGCCA restores partial web presence

A kind anonymous soul has provided us with this new link to the Coast Guard Court of Criminal Appeals' decisions. The good news is that on the 2008 opinion page, 5 of the 8 opinions are actually accessible. The bad news is that 3 of the links are broken and the most recent opinion actually available on the site is dated 30 April 2008. I understand from other sources that CGCCA has issued an opinion as recently as 29 August 2008. (United States v. McLeod, No. 1262.) The last two CGCCA cases we discussed appear to be the appalling en banc decision in Bonilla, which was issued on 6 June 2008, and the throw-away published decision in Gomez, issued the same day. United States v. Bonilla, 66 M.J. 654 (C.G. Ct. Crim. App. 2008) (en banc); United States v. Gomez, 66 M.J. 663 (C.G. Ct. Crim. App. 2008). Curiously, Bonilla is on the new CGCCA web site with a broken link while Gomez, which was issued the same day, isn't there at all.

Have counsel litigating Coast Guard cases been flying blind as to new case law issued over the last three months? Can anyone explain what's happened to the CGCCA web site?