Does anyone have a Behenna update?

Can anyone update us about the Behenna case? Did the military judge rule on the defense's mistrial motion today?

ABA Journal article on Blackwater contractor MEJA prosecution

The March issue of the ABA Journal includes this article on the MEJA prosecution of six Blackwater contractors arising from the deaths of 14 Iraqi civilians and wounding of 20 more in Baghdad's Nisur Square in September 2007. While my copy of the March ABA Journal showed up in Casa CAAFlog's mailbox just yesterday, the article appears to have been written before Judge Urbina's 17 February ruling denying the defendants' motion to dismiss on jurisdictional grounds, which we discussed here. It also appears that the article's author is unaware of Article 2(a)(10) of the UCMJ.

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?

Blog watch [Revised]

Phil Cave's Court-Martial Trial Practice blog posted a couple of interesting items today. One is an account of a MEJA prosecution of a civilian husband of an Airman stationed at Kadena Air Force Base on Okinawa for allegedly assaulting and murdering his 8-year-old stepson. The caee will be tried in the United States District Court for the District of Maryland. CMTP's post is available here and the Stars and Stripes report to which is links is available here.

CMTP also has this interesting post about a model state code of military justice for the National Guard. The post provides this link to the model code and this link to a background PowerPoint briefing. (Each of those two links acts like it's password protected, but I hit cancel twice when it asked me to log on and then it just opened.)

And here's a link to Bridget Wilson's piece on the model state code of military justice for the National Guard that Gene Fidell mentions in the comments below.

Internet access to unpublished opinions

As I indicated earlier this weekend, it now appears that three of the four Courts of Criminal Appeals plus the Court of Appeals for the Armed Forces make all of their opinions available on the Internet. The only outlier is the Navy-Marine Corps Court of Criminal Appeals which, curiously, has led the way among the CCAs in making its oral arguments available on the web.

Interestingly, there's a federal statute that requires "each circuit" to establish and maintain "a website that contains the following information or links to websites with the following information: . . . Access to the substance of all written opinions issued by the court, regardless of whether such opinions are to be published in the official court reporter, in a text searchable format." E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913. Should Congress amend the E-Government Act to bring the military appellate courts within its scope?

This week in military justice -- 8 March 2009 edition

This week at the Supreme Court: The deadline for the Solicitor General's reply brief in Denedo is Wednesday. We'll post a copy once we get access to it.

This week at CAAF: No oral arguments are scheduled at CAAF this week.

This week at the CCAs: AFCCA will hear an oral argument tomorrow in a self-incrim case. The issue in United States v. Cahall, No. ACM S31458, is "WHETHER APPELLANT'S STATEMENTS TO AFOSI SHOULD HAVE BEEN SUPPRESSED WHEN THEY FOLLOWED HIS INVOCATION OF HIS RIGHTS TO REMAIN SILENT AND TO CONSULT AN ATTORNEY AND HIS REQUESTS WERE NOT 'SCRUPULOUSLY HONORED.'"

This week at the court-martial trial level: A ruling is expected tomorrow on the defense's motion for mistrial due to a Brady violation in United States v. Behenna, which resulted in an unpremeditated murder conviction and 25-year sentence last week.

Five new co-sponsors for H.R. 569, the Equal Justice for Our Military Act of 2009

Yesterday, five more co-sponsors were added for H.R. 569, the Equal Justice for Our Military Act of 2009, bringing the total number of co-sponsors to 18. The new co-sponsors are Bob Brady (D-Pa); Eric Massa (D-N.Y.); Solomon Ortiz (D-Tex.); Joe Sestak (D-Pa.); and Ellen Tausher (D-Cal.). The bill would allow servicemembers whose petitions to CAAF are denied to seek certiorari from the Supreme Court -- just as, apparently, every civilian convicted of a criminal offense is able to do (with the exception, of course, of civilians convicted pursuant to Article 2(a)(10) of the UCMJ).

CAAF updates its hearing calendar

Today CAAF updated its hearing calendar web page. The 9 March sitting is gone while the 16 March sitting remains, but with no scheduled cases. All four April sittings (14, 15, 27, and 28) now have two cases apiece assigned to them. There are still two sitting scheduled for May (5 and 6), but with no cases assigned to them yet.

Code 46 seeks more time for possible certification of fascinating but inaccessible NMCCA opinion

The first hint I had that there was a case called United States v. Burk was an interesting CAAF daily journal entry that showed up online today: "Notice is hereby given that a motion for enlargement of time to file a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed by the United States under Rule 30 on this date." United States v. Burk, __ M.J. ___, No. 09-5001/MC (C.A.A.F. March 4, 2009). What NMCCA case had Code 46 so worked up, I wondered, that it was seeking more time to try to get VADM MacDonald to certify it to CAAF? So I went looking for the opinion. But it wasn't on NMCCA's web site. Nor was it on the formerly comprehensive but now almost useless Navy Knowledge Online. LEXIS? Nope, not there either. Now NMCCA deserves huge kudos for putting its oral arguments online. But why does it make so many of its opinions inaccessible? The Air Force and Coast Guard CCAs put all their opinions online. I believe that ACCA does now, as well, with its recent addition of summary disposition opinion tabs to its web site. NMCCA, please, please, please follow suit.

NMCCA's stinginess with its opinions becomes even more frustrating because when I finally laid my hands on a copy of Burk (I know people), it turned out that there was a PREVIOUS NMCCA opinion in Burk that I still don't have. But what I have read is fascinating.

Here's a copy of NMCCA's latest Burk opinion. United States v. Burk, No. NMCCA 200800146 (N-M. Ct. Crim. App. Feb. 12, 2009) (per curiam). But the opinion starts out by telling us that the "Government requested en banc reconsideration of an earlier Panel decision in this case." Id., slip op. at 1. When did that earlier decision come out? I have no idea; NMCCA doesn't tell us. Apparently in that earlier opinion, NMCCA held that the military judge (the Baltimore Orioles' second baseman) erred by denying defense challenges to two members. And apparently NMCCA erred by believing that both of those members actually served on the court-martial while, in reality, one had been peremptorily bounced by the defense, thus eliminating any claim of error pursuant to the despicable R.C.M. 912(f)(2) "Wiesen fix." See id. at 1 n.1. NMCCA refreshingly acknowledges its mistake. Id. BUT, NMCCA goes on to reverse the findings and sentence based the military judge's other erroneous challenge denial.

One of the members, a staff sergeant, "responded in group voir dire that she could not state with absolute certainty that she presumed the appellant to be innocent of the charges against him." Id., slip op. at 3. During individual voir dire, the trial counsel got her to proclaim herself "neutral" and to presume innocence. Id. The defense counsel then elicited her statement that, in NMCCA's words, "a Marine should testify when he says he is not guilty." She said, "If it would be me, I'd want people to know I'm innocent and not leave any doubt in anyone's mind I didn't do something." Id. She did say, though, that that thought wouldn't be in the back of her mind during deliberations. Id. The military judge, the Baltimore Orioles' second baseman, then elicited her statement that she understood the presumption of innocence and the accused's right not to testify. He also elicited her statement that she wouldn't hold it against Sgt Burk if he didn't testify.

The defense challenged the staff sergeant for cause. The military judge rejected an implied bias challenge. NMCCA observed, however, that the military judge "omitted any discussion of demeanor." Id., slip op. at 4. Nor did the military judge mention the liberal grant mandate. The military judge, the Baltimore Orioles' second baseman, denied the challenge for cause. E4, ruled NMCCA. (I know, you saw that one coming all the way down Eutaw Street.) (The defense used its peremptory against another member who made statements somewhat similar to those of the staff sergeant; the military judge had denied a challenge for cause against that member as well. Apparently the error in the original MIA NMCCA opinion was holding that the military judge had erred by denying the challenge for cause against that member as well.)

NMCCA concluded that in this he-said/she-said rape case: "Because one of the seated panel members professed a belief that one accused of a crime should testify, our own perception of the fairness, and the apparent fairness, of the proceedings is significantly undermined, and we believe that the general public would have a like perception." Id., slip op. at 4-5.

Of course, the general public will never hear of this case. Nor will the military justice community, due to the NMCCA opinion's inaccessibility. Unless, of course, Code 46 gets its extension of time and convinces VADM MacDonald to certify it.

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.