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Saturday, November 08, 2008
Martinez capital court-martial update
Here's a link to the Fayetteville Observer's most recent update on the Martinez capital court-martial. The article reports that the prosecution plans to rest early next week and that trial proceedings will be held on the Veterans Day holiday.
Law, Ethics, and War on Terrorism symposium now available online
In September, the South Texas Law Review held a symposium on Law, Ethics, and the War on Terrorism featuring presentations by many distinguished military law and military justice experts (including CAAFlog contributor Gene Fidell). Here's a link to the symposium's schedule, which lists the presenters and their topics.
In the Opinio Juris international law blog (or would that be "international blawg"?), Professor Chris Borgen -- one of the symposium presenters -- lets us know that the symposium is now available online as a videostream here and here. And here's a link to Professor Borgen's discussion of the symposium and announcement that it's now available online.
In the Opinio Juris international law blog (or would that be "international blawg"?), Professor Chris Borgen -- one of the symposium presenters -- lets us know that the symposium is now available online as a videostream here and here. And here's a link to Professor Borgen's discussion of the symposium and announcement that it's now available online.
Anyone have any Denedo intel?
Here we are on the 8th of November and neither of two developments that I anticipated would happenin in Denedo last week seems to have occurred. Neither the SCOTUS nor SG's web site reflects a reply to Denedo's opp. And SCOTUS's web site doesn't reflect a distribution of the case for conference. Does anyone know what's happening or about to happen?
New Developments Course
Like many readers I suspect, I just returned from the 32nd Criminal Law New Developments course at The Judge Advocate General’s Legal Center and School. As usual, Charlottesville is beautiful in the fall. Here are a couple of quick highlights:
1- The Army has apparently developed a similar sort of program as the Navy’s Military Justice Litigation Qualification career path. It was referred to as “S.I.” Any of our Army friends have more details? Can somebody email us with the instructions/references establishing this program? From what I could gather, it was different than the Navy’s litigation qualification in three important respects: (1) it does not include precept language designed to highlight the need for such qualified officers at promotion boards, and (2) there seemed to be less emphasis on the assignment of qualified officers into litigation billets as there is in the Navy, and (3) there are four levels instead of two. Folks with more information please correct me and fill out the little I was able to pick up. I was hampered in my understanding of the brief by my ignorance of Army abbreviations.
2- CAAFlog and Mr. (vice Col) Sullivan received a brief shout out when Kennedy v. Louisiana was discussed.
3- Although I generally agree with the majority of our contributors that the commissions is off-topic or at least darn close, LCDR Brian Mizer did give a very interesting account of the OMC from the defense counsel perspective. What was most interesting was the reaction of the audience of around 300 uniformed attorneys. LCDR Mizer was brutally honest and sarcastic. It would have been easy to be offended by him if you were looking for excuses, but the audience seemed very well disposed to him, asking several probing questions. The vast majority of attendees were very receptive to his insights and opinions, or at least those who were not did not make many comments or display a reaction.
I wanted to give a particular nod to MAJ Charles Neill, JA, USA. Many of the speakers did a good job, but MAJ Neill seemed to have that right balance of useful information, clear presentation, with the right amount of clever humor thrown in that so many of the Army (and Navy at NJS) instructors aim for, and that so few actually can pull off.
1- The Army has apparently developed a similar sort of program as the Navy’s Military Justice Litigation Qualification career path. It was referred to as “S.I.” Any of our Army friends have more details? Can somebody email us with the instructions/references establishing this program? From what I could gather, it was different than the Navy’s litigation qualification in three important respects: (1) it does not include precept language designed to highlight the need for such qualified officers at promotion boards, and (2) there seemed to be less emphasis on the assignment of qualified officers into litigation billets as there is in the Navy, and (3) there are four levels instead of two. Folks with more information please correct me and fill out the little I was able to pick up. I was hampered in my understanding of the brief by my ignorance of Army abbreviations.
2- CAAFlog and Mr. (vice Col) Sullivan received a brief shout out when Kennedy v. Louisiana was discussed.
3- Although I generally agree with the majority of our contributors that the commissions is off-topic or at least darn close, LCDR Brian Mizer did give a very interesting account of the OMC from the defense counsel perspective. What was most interesting was the reaction of the audience of around 300 uniformed attorneys. LCDR Mizer was brutally honest and sarcastic. It would have been easy to be offended by him if you were looking for excuses, but the audience seemed very well disposed to him, asking several probing questions. The vast majority of attendees were very receptive to his insights and opinions, or at least those who were not did not make many comments or display a reaction.
I wanted to give a particular nod to MAJ Charles Neill, JA, USA. Many of the speakers did a good job, but MAJ Neill seemed to have that right balance of useful information, clear presentation, with the right amount of clever humor thrown in that so many of the Army (and Navy at NJS) instructors aim for, and that so few actually can pull off.
Friday, November 07, 2008
CAAF denies court-martialed civilian's writ appeal
CAAF has denied the writ appeal in Ali v. Austin, which we previously discussed here, here, and here. Ali v. Austin, __ M.J. ___, Misc. No. 09-8001/AR (C.A.A.F. Nov. 5, 2008) (summary disposition). It's still possible that the Judge Advocate General of the Army could refer the case to ACCA for review under Article 69. But barring such a move, the first civilian convicted by a U.S. court-martial since the Vietnam war will have no right to a judicial direct appeal.
The Ali case highlights a problem with subjurisdictional courts-martial. A review of the last five years' annual reports reveals that each year, most of the courts-martial that qualified for Article 66 review were special courts-martial, not GCMs. So each year, most cases that qualify for judicial appellate review do so because they include a punitive discharge, not because they resulted in a year or more of approved confinement. But in the case of a civilian, no punitive discharge is possible. So if courts-martial of civilians follow a pattern similar to courts-martial of military members, most of those convictions won't qualify for judicial direct appeal. What is the logic of allowing a civilian to be stigmatized with the life-long stain of a federal conviction without a right to any judicial direct appeal?
The Article 2 amendment that resulted in court-martial jurisdiction over civilians in contingency areas went through Congress with little formal consideration. It seems unlikely that most members of Congress understood that they were allowing civilians accompanying our forces in the field to be convicted without any guaranteed judicial direct appeal. If I'm right about that, perhaps the next Congress will correct this oversight.
The Ali case highlights a problem with subjurisdictional courts-martial. A review of the last five years' annual reports reveals that each year, most of the courts-martial that qualified for Article 66 review were special courts-martial, not GCMs. So each year, most cases that qualify for judicial appellate review do so because they include a punitive discharge, not because they resulted in a year or more of approved confinement. But in the case of a civilian, no punitive discharge is possible. So if courts-martial of civilians follow a pattern similar to courts-martial of military members, most of those convictions won't qualify for judicial direct appeal. What is the logic of allowing a civilian to be stigmatized with the life-long stain of a federal conviction without a right to any judicial direct appeal?
The Article 2 amendment that resulted in court-martial jurisdiction over civilians in contingency areas went through Congress with little formal consideration. It seems unlikely that most members of Congress understood that they were allowing civilians accompanying our forces in the field to be convicted without any guaranteed judicial direct appeal. If I'm right about that, perhaps the next Congress will correct this oversight.
CAAF grant
CAAF granted review of these issues yesterday:
AFCCA's opinion in the case is available here. The second issue in the case involves an Air Force E-6 dating a Marine Corps (or, in the words of the AFCCA opinion, "Marine Corp") E-3. Nothing in any standing order prohibited the relationship and there was no direct superior-subordinate relationship between the two. But the Marine E-7 for whom the Air Force E-6 worked ordered him to the stop the "offensive" aspect of his relationship with the E-3. Apparently he didn't.
AFCCA agreed with Technical Sergeant Ranney that the military judge erred by having the members decide the question of the order's legality rather than deciding it himself. Id., slip op. at 6. But AFCCA went on to hold that the order was legal. AFCCA reasoned:
CAAF will now review that conclusion. And my guess is that CAAF will consider something that AFCCA didn't discuss: the gunny's order's implications for Technical Sergeant Ranney's First Amendment right to freedom of association. See generally United States v. Brown, 45 M.J. 389 (C.A.A.F. 1996) (discussing the extent to which the First Amendment right to freedom of association applies to servicemembers).
I. Whether the evidence is legally sufficient to support the finding of guilty for disobeying a lawful command where there was no evidence that the command was directed personally to Appellant or that Appellant knew it was from a superior commissioned officer.United States v. Ranney, __ M.J. __, No. 08-0596/AF (C.A.A.F. Nov. 6, 2008).
II. Whether the order in the specification of Charge II was a lawful order when the evidence indicated the order's purpose was to accomplish some private end.
AFCCA's opinion in the case is available here. The second issue in the case involves an Air Force E-6 dating a Marine Corps (or, in the words of the AFCCA opinion, "Marine Corp") E-3. Nothing in any standing order prohibited the relationship and there was no direct superior-subordinate relationship between the two. But the Marine E-7 for whom the Air Force E-6 worked ordered him to the stop the "offensive" aspect of his relationship with the E-3. Apparently he didn't.
AFCCA agreed with Technical Sergeant Ranney that the military judge erred by having the members decide the question of the order's legality rather than deciding it himself. Id., slip op. at 6. But AFCCA went on to hold that the order was legal. AFCCA reasoned:
[T]he evidence in the record establishes that GySgt F's reason for issuing the order was his concern regarding the conflict between the duties imposed upon an NCO with regard to reporting non-compliance of junior Marine enlisted members with various restrictions placed upon their social activities and the existence of a relationship between an NCO and a junior enlisted member which tended to engender such non-compliance. He expressed concern about the impact such a situation would have on other junior enlisted members within the unit -- in essence its impact on the discipline and moral [sic] of the unit, clearly a traditional concern of those in supervisory positions within the military.Id., slip op. at 6-7.
Conclusion
Had there been a supervisory relationship between the appellant and LCpl M within the unit, the basis for GySgt F's concerns would have had more gravitas. Yet, we are charged with discerning whether there existed a rational nexus between military duty and the order in question, not to parse where that military duty sits on a continuum from greatest to least. Based on the evidence in the record, we conclude that such a nexus existed in this case, and consequently the order was lawful.
CAAF will now review that conclusion. And my guess is that CAAF will consider something that AFCCA didn't discuss: the gunny's order's implications for Technical Sergeant Ranney's First Amendment right to freedom of association. See generally United States v. Brown, 45 M.J. 389 (C.A.A.F. 1996) (discussing the extent to which the First Amendment right to freedom of association applies to servicemembers).
Leahy and Hatley Charges Update
According to Stars and Stripes, here, Army Sgt. Michael P. Leahy Jr., has been charged with an additional count of conspiracy to commit premeditated murder (with 1st Sgt. John E. Hatley) and premeditated murder for a Jan. 2007 detainee shooting death near Baghdad separate from the four detainees they allegedly conspired to kill earlier this year, as we reported here.
UPDATE: A HQJMTC (I'll let you figure that out) press release, here, notes that both offenses occurred in 2007 and no charges have been preferred against 1stSgt Hatley for the Jan. 2007 death, yet. Corrections made above. It also says that the Art. 32 hearing for Sgt. Leahy is scheduled for November 12, at 9 a.m. at the Rose Barracks Courthouse in Vilseck, Germany.
UPDATE: A HQJMTC (I'll let you figure that out) press release, here, notes that both offenses occurred in 2007 and no charges have been preferred against 1stSgt Hatley for the Jan. 2007 death, yet. Corrections made above. It also says that the Art. 32 hearing for Sgt. Leahy is scheduled for November 12, at 9 a.m. at the Rose Barracks Courthouse in Vilseck, Germany.
Thursday, November 06, 2008
Mid-Day Martinez C-M Update
No Daily Journal entries of interest and no new opinions, so I bring you this mid-day update on the Martinez capital proceedings from Fort Bragg. According to the Fayetteville Observer, here, the MJ warned the trial counsel to stop laughing at statements made by the defense counsel (comment away about the appropriateness of that, and whether you have ever wanted to do the same thing).
Yesterday, see Fayetteville Observer report here, Martinez's defense counsel asked that a panel member be removed due to concerns about the member's statements in a memo to the MJ. The memo wanted to know why after the member's question to a witness was blocked by the MJ that the defense counsel was allowed to ask a nearly identical question of the witness.
Yesterday, see Fayetteville Observer report here, Martinez's defense counsel asked that a panel member be removed due to concerns about the member's statements in a memo to the MJ. The memo wanted to know why after the member's question to a witness was blocked by the MJ that the defense counsel was allowed to ask a nearly identical question of the witness.
Wednesday, November 05, 2008
Martinez daily update
Here's a link to the Fayetteville Observer's report on Wednesday's court-martial proceedings in the capital Martinez court-martial at Fort Bragg.
Supremes docket new military cert petition
On 3 November, the Supremes docketed a cert petition in Seawell v. United States, No. 08-588. Seawell arises from a 5 August 2008 summary affirmance by CAAF. United States v. Seawell, __ M.J. ___, No. 06-0502/AF (C.A.A.F. Aug. 5, 2008) (summary disposition). AFCCA's unpublished opinion in the case is available here. United States v. Seawell, No. ACM 35531 (f rev) (A.F. Ct. Crim. App. Dec. 28, 2007).
The cert petition, filed by my colleague Capt Jen Raab, offers this QP:
The cert petition, filed by my colleague Capt Jen Raab, offers this QP:
Does a mandatory supervised release program violate the Fifth and Eighth Amendments, where the program allows the Government to revoke earned credit against an adjudged sentence without due process thereby resulting in an increase in punishment?
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