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.

In today’s military I have to wonder what people may be thinking.  Some time ago the Army had a prostitution scandal.  Now apparently the Navy.

Prostitution is illegal and various acts involving prostitution are illegal under the UCMJ.

The Stars & Stripes has this report today.

The former command master chief of the USS Germantown admitted Wednesday at a court-martial that he oversaw a prostitution research ring operated by four senior chief petty officers aboard the ship.  Command Master Chief Petty Officer Jesus Galura pleaded guilty to conspiracy to procure prostitutes, violation of a general order and making a false official statement to a law enforcement agent.  Testimony at the trial revealed a series of sexual assault accusations involving Galura and others that prompted the 7th Fleet to initiate an investigation of Germantown, Amphibious Squadron 11 and Expeditionary Strike Group 7.  An investigation report later described the situation among Germantown’s chiefs as “out of control,” according to court testimony.

Last year the Army at Fort Hood had a senior NCO involved in prostitution.

Yet again, a soldier employed by the U.S. military’s sexual assault and harassment program has been accused of being a sexual predator. And Sgt. 1st Class Gregory McQueen did his predecessors one better: He allegedlyorganized a prostitution ring of young servicewomen at the Army base in Fort Hood, Texas, pressuring them to have sex with their male superiors.

Two soldiers said Tuesday that a noncommissioned sexual-assault prevention officer at Fort Hood recruited them and other cash-strapped female soldiers to join a prostitution ring.

These issues are not new.  When I was deployed as an SJA to DESERT SHIELD/DESERT STORM we had such a situation where two females set up their own tent.  It came to light when one of their “john’s” welched on the price.

Please use your head that’s at the top of your body.  Avoid creating situations like this and if you hear of it report it.

The Army JAG Corps has been rocked with some significant sexual assault allegations.  One of them involved Major Erik Burris, who until last year was the Chief of Justice (senior prosecutor) at Fort Bragg, NC.  He has now been convicted himself of various sexual assault allegations, and has been sentenced to serve 20 years confinement as part of his punishment.

The charges:  two counts of rape, four counts of assault and one count each of forcible sodomy and disobeying an order from a superior commissioned officer.  Burris was cleared of four counts of assault and two counts each of sexual assault, forcible sodomy and communicating a threat.

I wonder if the members of his court-martial were aware of his comments about sexual assault prosecutions, which arose from in court testimony in two unrelated cases.

Maher also alleges a former lead prosecutor, Maj. Erik Burris, was too distracted to supervise the case properly because he was distracted by other duties, including the Army’s pressure to prosecute certain cases. Maher also said the major’s personal problems, to include his own charges tied to an alleged assault against his wife and kids, served as an additional distraction.

Burris, who served as 82nd’s Chief of Justice when Lorance’s case was processed, testified in an unrelated pre-trial hearing last summer. He said his office was pressured to prosecute cases, even when the evidence was what Maher described in the filings as “iffy.”

“I know enough about what’s going on. If I wanted to, I could embarrass the 82nd,” Burris said in court.

United States v. Lorance.

The division’s former Chief Military Justice, Major Erik J. Burris, testified there was growing pressure to prosecute sex assault cases under his watch in 2012. The rule was, he said, given probable cause all cases should go to an Article 32 Hearing. If pending probable cause again, it will head to a court martial.

But more questions would arise from senior leaders about the details of sex assault cases, suggesting a blanket directive to prosecute the cases, said Burris.

“It was increasing and just having to deal with the burden of information handling on the cases was significant.”

Burris’s credibility was challenged by prosecutors, who pointed out the officer is facing similar charges for alleged crimes against his own spouse. Burris was relieved from his duties in February 2013, pending a criminal investigation, to include sex assault.

Burris denied his pending courts martial played a part in a motive to testify, but he did admit to having made recent comments expressing his “extreme displeasure” with how the Army was handling sex assault cases.

and United States v. Camacho.  Both cases are at Fort Bragg, the same place Major Burris was tried.

[Update]  This article in the Military Times continues to tie the Burris and Lorance cases together a little.

No. 14-0660/AR. U.S. v. Michael C. Budka. CCA 20120435.  On further consideration of the granted issues (74 M.J. __ (C.A.A.F. Oct. 23, 2014)), and the briefs of the parties, we first conclude that the United States Army Court of Criminal Appeals did not abuse its discretion and did not violate the principle of party presentation, as outlined in Greenlaw v. United States, 554 U.S. 237, 243-44 (2008), when it summarily affirmed the finding of guilty to the offense of aggravated assault after the Government conceded that the factual predicate for that offense had not been met.  Under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866(c) (2012), the Court of Criminal Appeals may affirm only such findings of guilty as it finds correct in law and fact, and “[i]n considering the record, it may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses.”  These factfinding powers are “unparalleled among civilian appellate tribunals,” and the decision in Greenlaw did not take those powers into consideration. United States v. Baker, 28 M.J. 121, 122 (C.M.A. 1989). Neither the Court of Criminal Appeals, nor this Court, is bound by government concessions. See United States v. Emmons, 31 M.J. 108, 110 (C.M.A. 1990); United States v. Hand, 11 M.J. 321, 321 (C.M.A. 1981); United States v. Wille, 9C.M.A. 623, 627, 26 C.M.R. 403, 407 (1958); United States v. McNamara, 7 C.M.A. 575, 578, 23 C.M.R. 39, 42 (1957); United States v. Patrick, 2 C.M.A. 189, 191, 7 C.M.R. 65, 67 (1953).

Remember Napue v. Illinois, 360 U.S. 264 (1959)?  Here’s the Justia summary.

At petitioner’s trial in a state court in which he was convicted of murder, the principal state witness, an accomplice then serving a 199-year sentence for the same murder, testified in response to a question by the Assistant State’s Attorney that he had received no promise of consideration in return for his testimony. The Assistant State’s Attorney had in fact promised him consideration, but he did nothing to correct the witness’ false testimony. The jury was apprised, however, that a public defender had promised “to do what he could” for the witness.

The failure of the prosecutor to correct the testimony of the witness which he knew to be false denied petitioner due process of law in violation of the Fourteenth Amendment. Pp. 360 U. S. 265-272.

(a) The established principle that a State may not knowingly use false testimony to obtain a tainted conviction does not cease to apply merely because the false testimony goes only to the credibility of the witness. Pp. 360 U. S. 269-270.

(b) The fact that the jury was apprised of other grounds for believing that the witness may have had an interest in testifying against petitioner was not sufficient to turn what was otherwise a tainted trial into a fair one. Pp. 360 U. S. 270-271.

Watch and listen to oral argument in Baca v. Adams.  For the meat, you may want to advance to minute 17, although you get a better understanding from starting at the beginning.

A point on the video – why is this guy arguing for the State.  Where is his boss?  This guy was put up there as a matter of failure in leadership.  Surely the attorney general and his supervisor had to know this case may go difficult.

If you didn’t have time to view, something of a decent summary can be found in the New York Observer.

A magistrate and the California Court of Appeal found that California deputy district attorney Spira lied under oath, testifying against a criminal defendant and in support of a lying “jailhouse snitch” who was placed on the witness stand in apparent subornation of perjury. Making matters worse, the California Attorney General fought “tooth and nail” to keep the transcript of the relevant hearing from the California Court of Appeal.

Read more at here

Why is this relevant – well the co-accused’s testimony and the complaining witness’s testimony in a 120?  To what effect is it a matter of direct evidence that a complaining witness received a transfer as a result of making a sexual assault complaint?  What about the TC who denies the complaining witness has received a benefit as a result of the complaint.

Military law and practice requires that any pretrial agreement discussions be conducted between the defense, the prosecutors, and the convening authority.  The military judge is not allowed to be involved.  The military judge’s involvement is during trial when she reviews a PTA with the accused to ensure it is all transparent and that it’s terms do not offend law or significant policy considerations.  Historically, courts have been reluctant to permit agreements to incorporate terms that deprive an accused of basic fundamental rights. See e.g., United States v. Callahan, 22 C.M.R. 443 (A.B.R. 1956); United States v. Cummings, 38 C.M.R. 174, 177 (C.M.A. 1968); and United States v. Schmeltz, 1 M.J. 8 (C.M.A. 1975).  R.C.M. 705 specifically lists examples of permissible and impermissible terms in a pretrial agreement.

  • The Court of Military Appeals in United States v. Schaffer, 12 M.J. 425, 428 (C.M.A. 1982) opened the door to non-traditional bargained for PTA provisions when it expressly acknowledged a judicial willingness to accept more complex PTAs, especially when the proposed term is proposed by the accused and his defense counsel.  For some odd terms the courts don’t like:
  • An agreement providing for a reduction of the accomplice’s confinement sentence by one year for each occasion that the accomplice testified against his co-accused. The court in United States v. Scoles, 33 C.M.R. 226, 232 (C.M.A. 1963) held that the agreement “offered an almost irresistible temptation to a confessedly guilty party to testify falsely in order to escape the adjudged consequences of his own misconduct.”
  • In United States v. Spriggs, 40 M.J. 158, 162 (C.M.A. 1994), the PTA provided for a suspension of confinement and punitive discharge until such time as appellant completed a sexual offender program at his own expense. Appellant experienced financial difficulties resulting from his non-pay status and was not able to complete the program. Consequently, the CA vacated his suspension and the appellant was placed in confinement. The court held the term to be fundamentally unfair as it was an “unreasonably long” period of time for the appellant to comply with the offenders program and follow-up.
  • See United States v. Dawson, 51 M.J. 411 (C.A.A.F.1999) and United states v. Pilkington, 51 M.J. 415 (C.A.A.F. 1999). Both cases stand for the proposition that post-trial agreements will be affirmed if the new agreement was entered into voluntarily and knowingly by the accused. However, it is imperative that post-trial agreements be reached at arms-length.

Now along comes one of my favorite evidence Prof’s – Colin Miller.  Recently, the New York Times published, “Why Adnan Syed of ‘Serial’ Should Have Pleaded Guilty.”

Prof Miller observes: “I can’t say that I agree that Adnan should have pleaded guilty, but I do agree with the plea bargaining proposal mentioned in the op-ed. In fact, it’s the same argument I made in back in 2013 in my article, Anchors Away: Why the Anchoring Effect Suggests that Judges should be able to Participate in Plea Discussions, 54 B.C. L. Rev. 1667 (2013).”

A New York federal judge, Jed Rakoff, has proposed one reform: plea-bargaining conferences. In sealed proceedings, judges would examine each party’s position and recommend a nonbinding plea bargain. The plan needs to be refined . . .

The point under discussion is Judge Rakoff’s piece, “Why Innocent People Plead Guilty,” from The New York Review ofBooks, November 2014.  Here’s the nub of the argument.

I am driven, in the end, to advocate what a few jurisdictions, notably Connecticut and Florida, have begun experimenting with: involving judges in the plea-bargaining process. At present, this is forbidden in the federal courts, and with good reason: for a judge to involve herself runs the risk of compromising her objectivity if no bargain is reached. . . . [U]nlike the criminal plea bargain situation, there is no legal impediment to doing so [in civil cases]. But the problem is solved in civil cases by referring the settlement negotiations to magistrates or special masters who do not report the results to the judges who handle the subsequent proceedings. If the federal rule were changed, the same could be done in the criminal plea bargain situation.

As I envision it, shortly after an indictment is returned (or perhaps even earlier if an arrest has occurred and the defendant is jailed), a magistrate would meet separately with the prosecutor and the defense counsel, in proceedings that would be recorded but placed under seal, and all present would be provided with the particulars regarding the evidence and issues in the case. In certain circumstances, the magistrate might interview witnesses or examine other evidence, again under seal so as not to compromise any party’s strategy. He might even interview the defendant, under an arrangement where it would not constitute a waiver of the defendant’s Fifth Amendment privilege against self-incrimination.

The prosecutor would, in the meantime, be precluded from making any plea bargain offer (or threat) while the magistrate was studying the case. Once the magistrate was ready, he would then meet separately with both sides and, if appropriate, make a recommendation, such as to dismiss the case (if he thought the proof was weak), to proceed to trial (if he thought there was no reasonable plea bargain available), or to enter into a plea bargain along lines the magistrate might suggest. No party would be required to follow the magistrate’s suggestions. Their force, if any, would come from the fact that they were being suggested by a neutral third party, who, moreover, was a judicial officer that the prosecutors and the defense lawyers would have to appear before in many other cases.

 

 

The Court of Appeals for the Armed Forces has granted a petition on the following issue:

WHETHER APPELLANT RECEIVED INEFFECTIVE ASSISTANCE WHEN DEFENSE COUNSEL FAILED TO INTRODUCE EVIDENCE WHICH STRONGLY CORROBORATED THE DEFENSE THEORY THAT THE ALLEGATIONS IN THIS CASE WERE FALSE.

Here is a link to the AFCCA opinion in United States v. McIntosh, ACM 37977, 2014 CCA LEXIS 29 (A. F. Ct. Crim. App. January 17, 2014).

Keep in mind that when there is an issue of ineffective assistance of counsel during trial there is a strong presumption that the defense counsel did provide constitutionally effective assistance.  The standard of review goes something like this.

The appellant must establish that:

(1) that his counsel’s performance was deficient, and

(2) that this deficiency resulted in prejudice.

That is that the representation amounted to incompetence under the professional norms applicable at the time of the representation.

In evaluating counsel’s performance under the first Strickland v. Washington, 466 U.S. 668 (1984), prong, appellate courts allow a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Military courts follow and apply Strickland to IAC claims.  See e.g., United States v. Green, 68 M.J. 360 (C.A.A.F. 2010).

Interestingly, at AFCCA the appellant raised 19 issues for why his conviction and sentence was unfair, but he did not specify the issue in the language CAAF granted.  Many of his issues seem to focus on a “failure” to fully litigate the case at the Article 32, UCMJ, investigation and thereby get the charges dismissed.  His IAC claims were:

The appellant claims his trial defense counsel were ineffective before, during, and after his trial because they failed to: (1) Advise him to wear the proper uniform for the Article 32, UCMJ, hearing; (2) Present exculpatory evidence at the Article 32, UCMJ, hearing; (3) Request a bill of particulars; (4) Dispute the charges at the Article 32, UCMJ, hearing; (5) submit defense objections to the Article 32, UCMJ, Investigation Officer (IO) in writing; (6) Contest the IO’s decision that BH was not reasonably available; (7) Cross-examine Detective RP regarding her knowledge of the appellant’s whereabouts or her interview with BH; and (8) Introduce evidence from the 2007 and 2010 sexual assault examination reports. He also contends his counsel left two Air Force Office of Special Investigations reports of investigations out of the record of trial prior to authentication, and improperly included a note from the appellant in the defense clemency submissions. He asks this Court to set aside the findings and the sentence because his counsel did not provide him with effective assistance.

Military appellate courts use a three part test to decide if the appellant has overcome the presumption of competence.

1. Are the allegations made by appellant true; and, if they are, is there a reasonable explanation for counsel’s actions . . . ?

2. If they are true, did the level of advocacy fall[] measurably below the performance . . . [ordinarily expected] of fallible lawyers?

3. If ineffective assistance of counsel is found to exist, is . . . there . . . a reasonable probability that, absent the errors, [there would have been a different result]?

United States v. Polk, 32 M.J. 150 (C.M.A. 1991).

Keep in mind when judging IAC:

The fact that their overall plan was not ultimately successful does not invalidate the defense strategy.

The fact that their overall plan was not ultimately successful is not proof of IAC.

See  United States v. Kibler, 43 M.J. 725, 730 (Army Ct. Crim. App. 1995) (“The test of counsel’s performance is not that he lost; and, it is not that some number of options were not pursued,” but rather whether the adversarial process was reliable enough to produce a just result);
United States v. Miller, 64 M.J. 666, 673 (A.F.C.C.A. 2007).

So, it will be interesting to see how this case is decided – a resolution is not immediately obvious from reading the AFCCA opinion or the granted issue – give me the facts.

 

Sgt. Maj. of the Army Ray Chandler announced this week that senior enlisted personnel would be rated on their ability to police online social media activity, in what many are nicknaming the “Facebook bullet” on the non-commissioned officer report (NCOER).

So reports Duffelblog.  I’ve always been of the view that there is a little or a lot of truth underlying humor.  The truth here is that the military has a problem with social media postings.  And so the joke is that part of the media management is to be critical of those who use social media – at times making it criminal, even to the extent of holding a member accountable for what their spouse or family member says online.  In my view this may border very closely on affecting a persons constitutional right to speech.  I’m well aware that there are limitations on a military members right to speak.  So let’s hope we don’t get another report bullet to micromanage.  Where is that line.  But on to something perhaps more relevant.

The act of laughing at a joke is the result of a two-stage process in the brain, first detecting an incongruity before then resolving it with an expression of mirth. The brain actions involved in understanding humor differ between young boys and girls. These are the conclusions reached by a US-based scientist supported by the Swiss National Science Foundation.

So reports Science Daily.

[H]umor also plays a key role in [good or bad] psychological health.

I have always believed in humor as a way to get through life – even to the extent of laughing at myself or accepting humor about me.  But not everyone responds the same.  See Hugh LaFollette and Niall Shank, “Belief and the Basis of Humor.”  At times “humor [is] a tool for coping with painful experiences.”  The authors tell us:

We would be remiss if we did not at least speculate about the relevance of our analysis for the current debate over political correctness. Humor is potentially a powerful political tool because, as noted above, it is capable of focusing our attention to particular descriptions of persons, things or events. Like any tool, it can bring destruction or build beautiful edifices, depending on who wields the tool, and for what purposes. The idea that there might be a need for “humor ethics” is by no means absurd, given the propensity for certain forms of humor to transform the ways in which we think about persons and the relations between them. .

. .

This stance can lead us to tolerate certain forms of humor by presupposing an equality which does not exist in our culture. Women and minorities understandably see such humor as perpetuating their inferior treatment and therefore think such humor should be rejected. . . . Such humor will likely seen especially offensive when told by white males. You must recall that the teller is part of the humor’s context. If the teller is a member of the oppressing group, the humor will more likely be seen as a form of oppression. However, the same joke told by a member of an oppressed minority to other members of that minority might well elicit a humorous response.

So while I continue to think humor is good, we do have to be careful about workplace humor – a cautionary word.  Context is everything.

  • Where are you.
  • Who is present.
  • Who will hear.
  • How might the hearer react.
  • Don’t assume, know your audience.

 

 

 

 

 

“[W]e recognize that electronic communications are susceptible to fabrication and manipulation.”

Campbell v. State, 382 S.W.3d 545, 550 (Tex. App. 2012).  Campbell and a number of other state and federal cases were support for my objection to text messages in a case this week.  I had a 120 which as usual had text messages as evidence by the prosecution – and I objected to authenticity.  Without going in to all of the facts, here are a few I thought relevant.

The CW had dropped her phone in the bath tub and it was no longer available for forensic examination.  In my last seven 120 cases this is the second bathtub-drop, along with two drop-and-breaks and one turn it in.  I’m beginning to get suspicious of what CW’s are being told once the photo of the text is cherry-picked and turned in.

  • As usual CID never took a forensic copy of the cellphone.
  • There were some discrepancies with other information.

The nature of my approach was initiated from a number of worth-the-read pieces.

“Because social media is often stored on remote servers, is accessed through unique interfaces, can be dynamic and collaborative in nature, and is uniquely susceptible to alteration and fabrication, evidentiary standards developed for other types of electronically stored information [ESI] may not be adequate.”

H. Christopher Boehning & Daniel J. Toal, Authenticating Social Media Evidence, N.Y.L.J., Oct. 2, 2012, at para. 4.

See also, Colin Miller & Charles White, The Social Medium: Why the Authentication Bar Should be Raised For Social Media Evidence. 87 TEMPLE L. REV. (ONLINE) 1 (2014).

Laird C. Kirkpatrick, § 9:9 Authenticating email, social media, web pages, text messages, instant messaging, electronic signatures.  GW Law School Public Law and Legal Theory Paper No. 2014-60.

In addition to the case law and the facts, I also introduced into evidence four (of about nine) applications that can be downloaded to a cellphone or tablet and from which you can fake or alter a text message are stream of texts.  In another case I had also presented evidence of similar apps to create fake emails from you.  Here is just one – iphonefaketext

The need for authentication arises in this context because an electronic communication, such as a Facebook message, an e-mail or a cell phone text message, could be generated by someone other than the named sender. This is true even with respect to accounts requiring a unique user name and password, given that account holders frequently remain logged in to their accounts while leaving their computers and cell phones unattended. Additionally, passwords and website security are subject to compromise by hackers. Consequently, proving only that a message came from a particular account, without further authenticating evidence, has been held to be inadequate proof of authorship. See, e.g., Commonwealth v. Williams, 456 Mass. 857, 869, 926 N.E.2d 1162 (2010).

State v. Eleck, 23 A.3d 818 (Conn. App. Ct. 2011).