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.

On 29 August 2014, the Inspector General, U.S. Department of Defense issue a report, Evaluation of DoD Compliance with the Sex Offender Registration and Notification Act.

In connection with the U.S. sex offender registry’s, there is now quite a robust amount of research that seems to label the idea as ineffective.  The worst of the worst are likely to commit similar crimes whether or not they are on a registry and under watch.  Fairly regular news reports provide anecdotal support for such a conclusion.  As for the rest, statistics show that sex offenders have a much lower recidivism rate than non-sex offenders.  In addition, there is a question about the basic effectiveness of such laws; as reported in Science Daily, and The Economist, and in a study conducted by the U.S. Department of Justice, National Criminal Justice Reference Service, in a limited study of South Carolina’s laws.  The criticisms do not suggest no value to such registry’s, rather a more precise and reasoned approach.  You might read a pro-con discussion about sex offender registration policy sponsored by the Federalist Society.  Science Daily notes,

“As a share of its population, America registers more than four times as many people as Britain, which is unusually harsh on sex offenders. America’s registers keep swelling, not least because in 17 states, registration is for life.”

Thanks the GMJR for a ping alert.

“Adolescents, more than adults, tend to discount the future and to afford greater weight to the short-term consequences of decisions.”

Kim Taylor-Thompson, States of Mind/States of Development, 14 STAN. L. & POL’Y REV. 143, 154 (2003).

How often do I think of this principle (cited to in The Virginia Lawyer, and United States v. Berry), when a client wants to upgrade their discharge.

From DefenseNews:  Senate Armed Services Committee Chairman Sen. Carl Levin, D-Mich., told reporters on Tuesday that Senate and House Armed Services Committee leaders want to finish the compromise version of the 2015 National Defense Authorization Act (NDAA) by Friday. There will likely be no floor amendments, Levin said, largely because there are few remaining days in the legislative calendar.

I came across a piece entitled, “We Love the Pentagon’s ‘Encylopedia of Ethical Failure’” which is on medium.com.

The piece notes what we have all seen that the last few years have seen many ethical challenges for the military.  Likely we know more about the specific cases because of The Internet and Google.

Individually, the cases are all bad news. The good news is that authorities often catch and punish government cheats, thieves and frauds. Penalties for ripping off the American taxpayer range from huge fines to hard time in prison.

The piece links to and has excerpts from the Encyclopedia, with a comment that, “It might be the most light-hearted official report anyone’s ever written about criminals.”

The encyclopedia is put out by the DoD Standards of Conduct Office as a learning and teaching tool.  For us, it is both interesting and entertaining to read, but it some ways a research tool for comparison purposes, “According to the Standards of Conduct official I spoke with, the encyclopedia has been a great success. Other government agencies even like it. “They like the realistic examples,” he said. “It also helps address the concern that people hear about complaints … but they don’t often hear the final result.”

It’s true—one particularly useful aspect of The Encyclopedia of Ethical Failure is its description of perpetrators’ punishments.

The Encyclopedia of Ethical Failures is approaching 200 pages. Two-hundred aggravating and amusing pages. The office most recently updated the book in October. The big update usually comes in July.

You might take a look if you need to lighten the day.

I was reading Unwashed Advocate today, and thought I would repeat his good advice on how best to make a motion or objection at trial.  I have a couple of additional thoughts, but otherwise his is good advice.  He says, and I quote extensively:

However, when it comes to making a motion, or stating an objection, I’ve always followed this format.

A. Object/Make Motion

B. State Reason

PDC:  Your reason for an objection should be short – preferably giving only the rule number, especially if this is happening in front of members.

C. Listen to other side

PDC: Agreed.  But it is especially important if the other side starts to give more detail and argument about why the objection should be overruled in front of the members.  If that happens ask for the members to be excused while you take this up in a 39(a) session.  Sure, the judge won’t like the up-and-out, but it’s your client on trial.  I read any number of records of trial where the trial counsel and judge engage, sometimes in great detail about the evidence and objection – all in front of the members.  What a way to educate the members!  And then how effective is it to give a curative or limiting instruction – Not!

D. Clarify [your reasons] in light of what other side said.

E. Go back and forth until judge directs a halt.

PDC:  At this point you should be focused on what the trial counsel is arguing.  Listen to the judge’s questions and respond to them.  Sometimes you can hear the judge tell you how to argue your objection, or give you a key to persuading her to rule in your favor.  I had a good friend and judge many years ago who would rule, “not on that basis -denied.”  Once I got to know his ways I realized that sometimes he was telling you there was a basis you just hadn’t raised it – yet.

F. Listen to ruling from judge.

G1: If the ruling is in your favor. SHUT UP (emphasis added).

G2: If the ruling is not in your favor, ask for reconsideration [or to add to the record] based on clearly articulated factors and state any points that seem necessary to complete and clarify the appellate record. Done and done.

PDC:  I would be careful here because of Rule F., and what follows – you have to make a record, but . . .

At this point, I view any further discussion as unnecessary and more likely to create ill-will toward my client. Therefore, I stop. Some want to push further than G2, turning the disagreement with the opposing side into an argument with the judge. I fail to see where this could, in any stretch, be calculated to bring a favorable result to the client. All it creates is bad blood in the courtroom, and the lawyer loses credibility with those who matter the most. Though, I’m sure those who use this technique have a reason for doing so.

PDC:  I have seen young trial counsel do this too often.  They are basically saying “judge you are wrong and we are right.”  Not an effective practice for the particular objection, or future events.  Some judges can get shirty about being told they are wrong – even if they are wrong.

Global Miliary Justice Reform blog brings us news of action in Europe in regard to a U.S. deserter seeking refugee status in Germany – he was avoiding deployment to the AOR.

On 1 January 1977, President Carter pardoned a large number of civilians who had gone to Canada to avoid the draft. The pardon did not extend to deserters, approximately 1000. Many had fled to Canada and were well received there.

During the more recent deployments to Iraq and Afghanistan a number of U.S. military personnel took French leave to Canada, although not solely to Quebec province. Several succeeded in being allowed to remain. Canada must be an interesting place – remember the recent incident of some Afghani officers being among several going AWOL to Canada while here on an educational cruise. As noted below, the Canadian courts have nixed refugee claims of U.S. military personnel.

Now we have the case of Andre Lawrence Shepherd who took French leave from his unit, and is in Germany.

In a press release of Court of Justice of the European Union PRESS RELEASE No 147/14, Luxembourg, 11 November 2014 —

According to Advocate General Sharpston, non-combat military personnel may claim asylum if they consider themselves to be at risk of prosecution or punishment for refusal to perform military service where so doing might involve commission of war crimes.

Shepherd was on a subsequent enlistment and had already served at least one tour in Iraq. He does not claim conscientious objector status because he is not against war per se, just how the Iraq war was going. Apparently he re-enlisted because he was told he would not be deploying to Iraq anymore.  His objection is a little more nuanced compared to several U.S. military personnel who have refused to deploy for “political” reasons. See e.g., United States v. Huet-Vaughn, 43 M.J. 105 (C.A.A.F. 1995)(granted clemency and early release from confinement); or the case of 1Lt Watada; or who have disobeyed orders for similar reasons. See e.g., United States v. Rockwood, 52 M.J. 98 (C.A.A.F. 1999).

The AG’s lengthy full opinion may be read at Andre Lawrence Shepherd v. Bundesrepublik Deutschland.

But the AG’s opinion doesn’t close the case – the opinion is not binding. And, it must still be determined whether he meets the German criteria. We do know that the German government is loath to relinquish jurisdiction under the SOFA over servicemembers who face the death penalty, or others who face the death penalty if extradited to the U.S. But this appears to be new ground they are treading.

You will be aware that Canada does not consider Iraq war related AWOL soldiers as refugees. See, Hinzman, et. al. v. [Canadian] Minister of Citizenship & Immigration, FC 420, [2007] 1 F.C.R. 561.

Keep your eyes tuned to future developments.

I was at a conference this weekend on global issues of military justice.  Again this lingering issue of transparency came up.

My friend and colleague Gene Fidell at Global Military Justice Reform, has found a couple of gems.

You can find information about the internal workings of the Army trial judiciary at this link, or by typing “Standing Operating Procedures” into your Google search bar.

You can also get the Army’s Standing Operating Procedures for Military Magistrates.

Another of my ongoing noting of civilian cases which reference or rely upon military appellate decisions.  I do this partly because it is an example of transparency and why it is needed in the military.  When using Lexis or other search functions you are going to come up with military cases – if you have the access.

In Wilson v. United States, No. 13-CM-564, (D.C. Court of Appeals, 6 November 2014), the appellant sought reversal based abuse of discretion in failing to suppress evidence gained after an illegal arrest.

The court denied the appeal, and in the process cited United States v. Marine, 51 M.J. 425 (C.A.A.F. 1999) to support its decision.  Yes, the accused in Marine was a marine.

Professor Schlueter takes a stab at answering the question.

David A. Schlueter, The Military Justice Conundrum: Justice or Discipline?, 215 MIL. L. REV.  1 (2013).

Why even ask the question let alone seek an answer.  Well it depends on where you stand on the current issue of a commander’s authority over courts-martials.  If you want to maintain the current system you have to counter those who argue for change.  If you want change you have to convince commanders their ability to pursue the mission will not be compromised because of an inability to maintain discipline.

Check it out.