CAAF issues opinion in Miller

CAAF released its opinion in Miller today, reversing the Air Force Court's decision. United States v. Miller, __ M.J. ___, No. 08-0307/AF (C.A.A.F. Dec. 3, 2008). The link to the opinion on CAAF's web site is broken, so I've posted a copy here. Judge Ryan wrote for a unanimous court. The case was heard as a Project Outreach argument at Fort Riley, Kansas, on 22 October, just 42 days ago.

SSgt Miller thought he was communicating over the Internet with a 14-year-old girl when, in fact, he was communicating with a sheriff's deputy. SSgt Miller web cast to the believed-to-be-14-year-old images of SSgt Miller masturbating and ejaculating. While doing so, he sent sexually suggestive IMs to the believed-to-be-14-year-old. SSgt Miller then proposed that they meet for sex. For his web cast, SSgt Miller was convicted contrary to his pleas of a specification of attempting to take indecent liberties with a child. He was also found guilty of two specs of attempting to communicate indecent language to a child.

CAAF held that the web cast was insufficient to meet the requirement that the indecent liberty be "in the presence" of the child. Relying on both the nonbinding discussion in the 2005 MCM and its own case law, CAAF held that "the offense of taking indecent liberties with a child requires the act be committed in the physical presence of the child." Id., slip op. at 7-8. CAAF also rejected the notion that appearing to the victim via video was sufficient to constitute physical presence. Id., slip op. at 8-9. Rather, CAAF concluded, to commit this offense, the accused must "be in the same physical space as the victim." Id., slip op. at 9. Applying Jackson v. Virginia's legal sufficiency standard, 443 U.S. 307 (1979), CAAF held that "no reasonable factfinder could conclude that Appellant committed an act that tended to effect the element of being in the detective's physical presence." Miller, No. 08-0207/AF, slip op. at 11. So SSgt Miller's "act did not tend to effect the commission of the completed offense, and no reasonable factfinder could find him guilty of the charged offense." Id.

CAAF remanded the case to AFCCA to resolve the government's argument that a finding of guilty to the lesser-included-offense of attempted indecent acts with another should be affirmed.

Martinez deliberations end for the day without a verdict

The Fayetteville Observer is reporting here that the members have ended deliberations for the day in the Martinez capital court-martial with no verdict.

Martinez Capital Case In Members' Hands

Trial counsel and defense counsel have wrapped up their closing arguments on findings in the SSgt Alberto Martinez capital court-martial at Fort Bragg, according to the Albany Times Union, report here. Interestingly, it appears that lead TC, LtCol Huestis, did not make the government's closing argument. Rather, assistant TC Maj. John Benson closed for the government. Attributing any relationship between that decision and the run-in between LtCol Huestis and the military judge, report here, would be rampant speculation . . . .

Speaking of SOFAs, here's a German Supplemental Agreement question

I understand that in 1993, the parties to the German Supplemental Agreement to the NATO SOFA negotiated an amendment that included the following Article 18A:

1. The authorities of a sending State shall notify the competent German authorities without delay in the event that they decide, in exercising jurisdiction under Article VII of the NATO Status of Forces Agreement, to undertake a prosecution which may lead to the imposition of the death penalty.

2. Taking into consideration the provisions of German law, the authorities of a sending State shall not carry out a death penalty in the Federal Republic nor carry through a prosecution which may lead to the imposition of such a sentence in the Federal Republic.

Does anyone know whether this provision was actually ratified? If so, does it still remain in effect? (This may be an instance where CAAFlog's navalcentric nature may be a drawback -- very few Devil Dog or Squid lawyers will be familiar with Germany's SOFA provisions.)

Court-Martial roundup . . . The Rest of the Story

Thanks to Dew Process for noting some additional court-martial news. And now, the rest of the story:

As Dew noted, Sgt. 1st Class Joseph Mayo faces an Art. 32 on Wed., Dec. 3, 2008. See Stars and Stripes report here. Mayo, Sgt. Leahy and 1st Sgt. Hatley are "accused of shooting four unarmed Iraqi detainees near a canal in southwest Baghdad in March or April 2007."

Sgt. Joseph Bozicevich has apparently retained Charles Gittins to defend him in a case involving the death of two senior NCOs in Bozicevich's Company. See Coastal Courier report here. According to the report, Sgt. Boz. has been in pretrial confinement since the incident on Sept. 14 and is now held at Fort Stewart. No word on an Art. 32 date. According to a US Army Special Forces Command news release, here, MSgt Joseph Newell was arraigned back in Sep 2008 for "charges stemming from the alleged murder and desecration of an unidentified Afghan male encountered by U.S. forces during combat operations near Hyderabad, Afghanistan in March of [2008]." The press release said the trial was set to begin on January 7, 2009 at Fort Bragg. For those not familiar with the case, this is the severed ear case, see prior post. No indication of a capital referral.

The case of 1st Lt Michael Behenna and Staff Sgt Warner, accused of murdering a detainee in Iraq, has fallen off the radar since their September 2008 Art. 32 hearings. See Newsmax report here. Let us know if you have any inside scoop. The Newsmax story reported that the cases might be moved stateside (the 32s were held in Iraq) when the soldiers' unit returned home. Send tips to noman@caaflog.com or caaflog@caaflog.com. Interesting aside, Behenna's mother was one of the AUSAs responsible for prosecuting Timothy McVeigh.

The Weemer and Nelson non-capital courts-martial at Camp Pendleton appear to be heading into 2009. The pair are accused of killing a detainee during the Battle for Fallujah in 2004, along with Sgt. Luis Nazario who was acquitted in a MEJA prosecution after Weemer and Nelson refused to testify against him. See CAAFlog coverage here. Motions hearings were held in the Nelson court martial on Nov. 9, 2008, according to a Pendleton press release, here. Here is a great page hosted by Camp Pendleton with one stop shopping on Marine Corps Iraq prosecutions, at least those at Camp Pendleton.

Gray's counsel oppose U.S. motion to reconsider stay of execution

Here's a link to a brief filed by Ronald Gray's counsel opposing the United States' motion to reconsider the U.S. District Court for the District of Kansas's order staying Gray's execution and appointing counsel to represent him on a habeas challenge to his military death sentence. Gray v. Gray, No. 08-3289-RDR (D. Kan. Nov. 26, 2008) (order).

Government's supplemental brief in Crotchett

We previously noted that the Navy-Marine Corps Court issued this order focusing the parties' attention on specific aspects of Article 120 to discuss during tomorrow's en banc oral argument on Article 120's constitutionality. United States v. Crotchett, No. NMCCA 200800770 (N-M. Ct. Crim. App. Nov. 19, 2008) (order). The Government submitted a supplemental brief to address the specific issues raised in that order. The supplemental Government brief is available here.

Panel to begin deliberations tomorrow in Martinez capital court-martial [UPDATED]

WRAL reports: "The case against Staff Sgt. Alberto Martinez was given to jurors Tuesday following about five hours of closing arguments at Fort Bragg. Jurors were expected to begin deliberations Wednesday."

Here's a link to the Hudson Valley Times Herald-Record's article on today's proceedings in the Martinez case. The article contains the interesting fact that "[t]he 14-member panel consists of six officers and eight enlisted men."

Audio of today's CAAF oral arguments available

CAAF has already posted the audio of today's two oral arguments on its web site. Here's a link to the oral argument in United States v. Brown, No. 08-0261/AR, and here's a link to the oral argument in United States v. McCracken, No. 08-0440/MC.

Last (?) Thought on the US-Iraq SOFA

Interesting Washington Times editorial today, here, on the US-Iraq SOFA in light of CAAFlog's post below. It highlights some "flaws," according to the author, in the SOFA, including the 900 pound gorilla in the room, whether the agreement has retroactive application.

The story contains one error that highlights another issue in the SOFA. Art. 12, ¶ 2 is the provision that waives immunity for some subset of US government contractors previously given to them in CPA Order No. 17, for an in depth discussion see our prior coverage here. The story incorrectly attributes this provision to ¶ 1. Paragraph 1 is actually the provision granting Iraq very limited jurisdiction over servicemembers for "grave premeditated," off base, and off duty felonies. The SOFA then grants servicemembers some comfort in ¶ 8, stating, "Where Iraq exercises jurisdiction pursuant to paragraph 1 of this Article, members of the United States Forces and of the civilian component shall be entitled to due process standards and protections consistent with those available under United States and Iraqi law."

The mistake of combining the contractor clause (¶ 2) with the servicemember clause (¶ 1) makes it seem like the SOFA gives contractors these due process guarantees. However, the reality is that the SOFA text does not, though an agreement to that effect could be struck. Rather, US government contractors who lose their immunity pursuant to the agreement are guaranteed no protections other than those in the Iraqi legal system. A rather startling change, but that's what the text says. And this state of affairs is a common one in nations with more developed court systems. For example, DoD contractors in Japan were subjected to Japanese law pursuant to the 1960 US-Japan SOFA. See Article XIV of US-Japan SOFA here. However, the 1966 US-Korea SOFA and agreed minutes provided contractors with rights similar to those given to servicemembers in the US-Iraq SOFA, e.g. due process protections. See US-Korea SOFA, Art. XV, available here. Thus, contractors in Iraq received the less cushioned version of the "SOFA rights" spectrum.

As far as the retroactivitiy issue, the only servicemembers that would want to follow the issue would be someone like former Army Private Steven D. Green who is accused of raping an Iraqi girl and murdering her and her family near Mahmoudiya, see prior coverage here. Green's case just wrapped up a suppression hearing, after delays due to the big Kentucky quilt show earlier this year, see here. Others involved in the case received 90-110 year sentences at courts-martial, see CNN report here. As for contractors, see reports here and here about their reactions.