This site is for the trial practitioner (the military lawyer) of military justice, and for the information of U.S. active duty, Guard, and reserve service-members, their spouses and their families. Our goal is to focus on trial practice issues in cases arising under the UCMJ and being tried at court martial. We hasten to add that nothing on this blog should be taken as specific legal advice for a specific client.

United States v. Plant was a difficult appeal, for a lot of reasons.  Ultimately we were able to get some relief at the Court of Appeals for the Armed Forces.  The court set-aside a conviction of child endangerment and ordered a sentence reassessment.

Faced with the issue back in the Air Force Court of Criminal Appeals we argued that the case should be returned to the field for a rehearing on the sentence.  However, we argued the alternative remedy of disapproving one year of confinement.  We did that because that was the maximum potential punishment for the child endangerment charge.

Today we received the news that the AFCCA agreed with us on setting aside one year of confinement.  This means Plant will be released 16 months earlier than expected.

 

“If we prioritize conviction rates rather than having just verdicts, and if we vote that way in elections, this problem [of unfair, biased criminal prosecutions] will just continue.”

by Todd VanDerWerff on January 11, 2016, Netflix’s Making a Murderer: the directors explain what many have missed about the series.  Vox.com, January 11, 2016.

Prosecutorial bias permeates the American judicial system. Prosecutors hell-bent on victory often directly or indirectly prod investigators and experts to get the results they want. It’s refreshing to see a judge recognize this in a well-reasoned, groundbreaking decision.

Martin Yant, Rogue prosecutor’s influence on hair expert’s testimony highlighted in ruling overturning conviction.  Wrongful Convictions Blog, January 27, 2016.  You can read the court decision here.

If, is a poem by Rudyard Kipling, which immediately sprang to mind when reading the above article.

Barracks, Dormitories, and Capitol Hill: Finding Justice in the Divergent Politics of Military and College Sexual Assault
3.  By Major Robert E. Murdough.pdf
Rudderless: 15 Years and Still Little Direction on the Boundaries of Military Rule of Evidence 513
4.  By Major Michael Zimmerman.pdf
Open-Ended Pharmaceutical Alibi: The Army’s Quest to Limit the Duration of Controlled Substances for Soldiers
5.  By Major Malcolm Wilkerson.pdf
A Better Understanding of Bullying and Hazing in the Military
7.  By Major Stephen M. Hernandez.pdf

The Army Court of Criminal Appeals has an interesting opinion and reminder about the relationship of improper relationships when there is an allegation of sexual assault.

United States v. Delgado, ARMY 20140927 (A. Ct. Crim. App. 6 January 2016).

AR 600-20, para. 4-14b. prohibits relationships between soldiers of different ranks if they:

(1) Compromise, or appear to compromise, the integrity of supervisory authority or the chain of command.

(2) Cause actual or perceived partiality or unfairness.

(3) Involve, or appear to involve, the improper use of rank or position for personal gain.

(4) Are, or are perceived to be, exploitative or coercive in nature.

(5) Create an actual or clearly predictable adverse impact on discipline, authority, morale, or the ability of the command to accomplish its mission.

This court has previously held that a solicitation to engage in sexual acts does not amount to a relationship as envisioned by AR 600-20 when the verbal advance was rejected. United States v. Oramas, ARMY 20051168, 2007 CCA LEXIS 588, at *6-8 (Army Ct. Crim. App. 29 Mar. 2007) (mem. op.) (emphasis added). This court has held that a single incident involving a rejected physical advance including touching and kissing also did not rise to the level of a relationship as defined by AR 600-20. United States v. Morgan, ARMY 20000928, 2004 CCA LEXIS 423, at *6-8 (Army Ct. Crim. App. 20 Feb. 2004) (mem. op.) (emphasis added). The main rationale behind these holdings is the “victim’s conduct is relevant to whether or not a prohibited relationship was established.” Id. at *7; Oramas, ARMY 20051168, 2007 CCA LEXIS 588, at *6-8; see United States v. Humpherys, 57 M.J. 83, 93-95 (C.A.A.F. 2002); United States v. Moorer, 15 M.J. 520, 522 (A.C.M.R. 1983) rev’d in part on other grounds, 16 M.J. 451 (C.M.A. 1983)(sum. disp.).

 

Is this agent still investigating?  Does this agent have any pending investigations or appearance as a witness in a UCMJ case?

A man arrested just before Christmas for allegedly pulling out his gun at a restaurant because he didn’t like the bill is a Special Agent for the U.S. Army’s Criminal Investigation Division.

Curtiss Davis is also accused of exposing himself to a female employee and demanding a sex act.

Army Times reports.

Thus begins a review of the Military Justice Review Group (MJRG) report Part 1.  My comments will be in no particular order.

Confinement to Bread & Water

Currently, a person can be confined for up to three days on bread and water rations, under certain circumstances.  The MJRG recommends removing this as a punishment.  They do not say why, other than to suggest that:

This proposal reflects confidence in the ability of commanders in a modern era to administer effective discipline through the utilization of the wide range of punishments otherwise available under Article 15 and other non-punitive measures.

My experience with bread and water as a punishment:

it can be an effective rehabilitative tool with some defaulters; but

it would likely be of no significant rehabilitative effect for the vast majority of defaulters.

As the command judge advocate in USS JOHN F. KENNEDY, I observed the imposition and effects of bread and water on the occasional defaulter as a punishment for almost three years.

We had an onboard Brig, but could only use it while underway.  That meant defaulters given bread and water while we were pier side had to be transported to the base Brig.  By the time the defaulter arrived at the Brig and by the time the Brig released the defaulter (usually before their going home time on the “third” day), the defaulter might have done one day of actual bread and water.  Not effective and administratively and logistically burdensome–so we didn’t use it while pier side.

When at sea the CO did at times assign bread and water as a Mast punishment.  However, it was used sparingly for those who needed a short kick in the backside to get them straight.  It was considered a remedial tool rather than a punishment.  If the defaulter’s chain of command thought the person worth saving, a short visit to the Brig might be enough to reorient the person–and it often was sufficient.

To ensure the full three days of confinement, we would hold Mast very early in the AM, sometimes shortly after midnight.  The defaulter would then be escorted to Medical several decks below the bridge for an appropriate physical examination, and assuming the person to be fit for bread and water, they’d be escorted several more decks below into the bowels of the ship to the Brig.  Once there, they received one loaf of sliced bread per day and as much water as desired.  They were of course constantly monitored for adverse physical reactions.

An interesting observation is that by the second day the defaulter stopped eating the bread.  That’s the effect of bread and water–they’d become full.

The pretrial appellate litigation in Bergdahl is effectively over–charges are referred to trial and he has been arraigned.

For those interested in the litigation to get access to UCMJ art. 32 hearing documents, I have collated the documents here.

There is a new effort to get quicker media access to trial documents from the Hearst Corporation.  See, Diego Ibarguen/COL Nance, MJ, ltr of 4 Jan 2016.

We are all familiar with the interactions that can occur between the military and civilian prosecutors when deciding who will prosecute a servicemember for crimes in the “civilian” community.  Sometimes the result is a civilian prosecution and the military takes adverse administrative actions, sometimes the civilians hand over the case to the military, and sometimes both proceed.  Here is an interesting news item from Washington State.

A former soldier accused of murdering his wife can’t get a fair trial because the Pierce County Prosecutor’s Office gave confidential police records to the Army as part of a “scheme” to help the military discharge him, a defense attorney alleged in court Monday.

That argument failed to persuade Superior Court Judge Jack Nevin to halt the prosecution of the former Spc. Skylar Nemetz, but it opened a window on how Pierce County and Joint Base Lewis-McChord decide how to hold soldiers accountable for offenses committed in civilian communities.

(Note: Judge Nevin is known to us at NIMJ.)

The News Tribune, 3 January 2016.

The interesting case of West v. Rieth, et. al. has come across the transom and it’s worth the read.

West alleges that the Federal Defendants, who with one exception were also U.S. Marine Corps service members at all relevant times, conspired to lodge false complaints and accusations of sexual harassment and sexual assault against him. According to the complaint, such false allegations were personally motivated by a desire to remove West and another individual from their supervisory positions and to obtain favorable transfers.[3]Investigations ensued, and West was court-martialed with respect to the allegations lodged by Rieth, Parrott, and Allen. The allegation that West raped defendant Johnson was not part of the court-martial because an investigator found that such allegation was not credible.[4]

At the court-martial in November 2014, defendants Rieth, Parrott, and Allen testified under oath against West, which testimony West alleges was false.

West was found not guilty of the majority of charges arising out of the alleged sexual assault and harassment directed towards Parrott, Harper, and Rieth.[6] He was found guilty of a subset of charges based on (1) certain sexually suggestive comments made to Allen[7] and (2) obstructing justice by conspiring with another Marine to provide Allen with copies of their text messages in an attempt to influence her testimony.[8] West alleges that as he was being escorted to serve a sentence of thirty days in confinement as a result of his convictions, “defendants Rieth, Parrott, and Allen, spit upon” him.

It’s a scope of employment and immunity case.

Is a complaining witness acting within the scope of employment when making a sexual assault or harassment complaint?

Is a complaining witness acting within the scope of employment when making a false sexual assault or harassment complaint?

First we look to state law because “Judicial review of the scope-of-employment certification “requires the application of the law of the state in which the employee’s conduct occurred.” Williams, 71 F.3d at 505.”

According to the government, the Federal Defendants, as employees of the Marine Corps, “were required to take the actions necessary to report and address any issue of sexual harassment and/or sexual assault with the appropriate United States Marine Corps officials.”[14] The government also argues that the U.S. Attorney’s certification “was appropriate because a determination had been made by the appropriate federal officials that there was enough credible evidence that the named Federal Defendants were the victims of workplace sexual harassment and/or sexual assault to refer charges to the General Court Martial.”[15] The implicit premise of the government’s argument in support of the scope-of-employment certification is that the Federal Defendants had a legitimate basis for reporting that West sexually assaulted and/or sexually harassed them and then testifying to those allegations at the subsequent court-martial.

The government is plainly correct that reporting sexual harassment and/or sexual assault by another Marine is within the reporting Marine’s course and scope of employment. Both parties have submitted Department of Defense documentation regarding the programs established to facilitate the reporting of such allegations, which documentation establishes that the military’s “goal is a culture free of sexual assault, through an environment of prevention, education and training, response capability . . ., victim support, reporting procedures, and appropriate accountability.”[16] West concedes that “sexual assault on a service member is disruptive and destructive to the military and violates its core values in a fundamental way.”[17]

The Court agrees that reporting sexual assault and/or sexual harassment would plainly be “primarily employment rooted” and “reasonably incidental to the performance of the employee’s duties.” See White, 419 F. App’x at 442. Likewise, use of a system expressly created by the Marine Corps to receive and handle such complaints is sufficiently “on the employer’s premises” and “during the hours of employment” to satisfy those factors, as would be testimony by a Marine at a court-martial instigated by such reports.

However, West alleges that the underlying allegations against him were fabricated, and that making false reports of sexual assault and testifying falsely as to those allegations cannot be characterized as within the scope of the employment of a U.S. Marine Corps service member.[18] West forcefully argues that completely false allegations made by one Marine against another solely on the basis of a personal vendetta and for personal gain would not be “reasonably incidental to the performance of the employee’s duties,” nor could such statements have “the purpose of serving the master’s business . . . to any appreciable extent.” Id.[19]

This case is an excellent read, especially for those of us considering whether they have the right case to sue a complaining witness who makes a false claim of sexual assault or harassment.  Such cases are not to be lightly pursued and require a significant degree of proof of falsity.  The need for a very thorough package of proof is illustrated in this case.

The Court concludes that West’s evidence consists of factual nitpicking, his personal “spin” on facts which equally tend to suggest that some of the allegations were well-founded, and secondhand credibility determinations. His submission falls well short of carrying his burden to establish as a factual matter that the allegations lodged against him by the Federal Defendants were false[.]

Bottom line, and I think correctly, you are not going to win a civil suit in a she said-he said case or the ubiquitous drunk sex case.