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.

Non-rated period approved for victims of sexual assault

Per a recent change to Air Force Instruction 36-2406, Officer and Enlisted Evaluation Systems, victims of sexual assault are now authorized non-rated periods.   Per paragraph, Sexual Assault (Unrestricted Report): The Airmen will submit the request, using memorandum format to their unit commander. The initial non-rated period, if the commander approves, is 120 calendar days; additional periods (60-day increments) may be requested for the Airman’s recovery, and will be requested in the same manner. It is prohibited to include comments on any correspondence regarding the member’s filing of an Unrestricted Report of sexual assault, receiving support services, and/or participating in the investigative process and/or judicial proceedings.

David A. SchlueterAmerican Military Justice: Responding To The Siren Songs For Reform.  73 A.F. LAW REV. 195 (2015).

In Greek mythology, a “siren” was a creature—half bird and half woman— that would lure sailors to destruction with their sweet and enticing songs.  Today, the American military justice system is being subjected to sweet and enticing calls for reform—siren songs.  At first hearing, the well-intentioned proposed reforms appeal to a sense of justice. On closer examination, however, those proposed reforms threaten the essence and functionality of an effective and efficientsystem of criminal justice that is applied in world-wide settings, in both peacetime and in war.

Proposals to change the American military justice system have generally come in waves, following major military actions, which tended to expose those elements or features of the system which had not worked well, or in the minds of the reformers, could be made better.

. . .

This article divides the proposed reforms into three categories and analyzes why the proposed changes to the military justice system should be rejected, in whole or in part.

Friday, April 3, 2015

Certificates for Review Filed

No. 15-0462/MC. U.S. v. Michael A. Arnold. CCA 201200382.  Notice is hereby given that a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 on this date, on the following issue:


Friday, September 25, 2015

Appeals – Summary Dispositions

No. 15-0462/MC. U.S. v. Michael A. Arnold. CCA 201200382.  On consideration of the certified issue, __ M.J. __, (Daily Journal Apr. 3, 2015), the briefs of the parties, and in view of United States v. Quick, 74 M.J. 332 (C.A.A.F. 2015), the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

Timothy Hennis filed this pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Mr. Hennis is confined at the United States Disciplinary Barracks in Fort Leavenworth, Kansas (“USDB”). He challenges his 2010 conviction by general court-martial for a triple murder that occurred in 1985. Petitioner mainly claims that the military court-martial lacked jurisdiction. He alleges other constitutional violations in the 14 grounds presented in his petition. The Court has screened the petition and finds that Mr. Hennis had not exhausted military court remedies. The Court dismisses this action without prejudice for failure to exhaust.

Hennis v. Nelson.

A good recitation of habeas for military accused’s and prisoners.  Of note:

Mr. Hennis filed the instant petition pro se and has not sought appointment of counsel. In fact, he expresses his intent to litigate this federal habeas petition pro se and even his desire to manage his defense during his military criminal appeals.

Mr. Hennis is currently represented by multiple counsel on his military direct appeals. He unwisely seeks to simultaneously litigate the exact same claims in federal civilian court while representing himself. The Court strongly urges Mr. Hennis to consult with his military defense team as to all matters having to do with his military convictions and sentence and to discuss with them all possible defenses and concerns. Any claim of ineffective assistance of counsel must be exhausted in the military courts. Mr. Hennis should carefully consider the pitfalls he has already encountered in this pro se attempt to prematurely assert his claims in civilian federal court. Even if he continues to believe that he is more capable to argue the facts of his case than any of his attorneys, he is strongly urged to take full advantage of the expertise and resources of his defense team.

While numerous studies have hailed mindfulness meditation for its potential benefits for the mind and body, new research suggests it may have a negative impact on memory.
While mindfulness meditation is believed to be beneficial for the mind and body, researchers say the practice may impair the ability to accurately recall memories.

Published in the journal Psychological Science, the study suggests individuals who engage in mindfulness meditation may have less accurate memories than those who do not take part in the practice.

Look for this as an additional piece of potential junk science in courts.


The Gazette of Colorado Springs has an article on the current USAFA sexual assault case.  It’s worth the read because of its misinformation, or perhaps lack of understanding.  So here goes with some comments.

1.People are upset because it’s odd the hearing was closed for quite a bit of time.  Duh.  Of course it’s closed:

But a series of contentious, closed-door hearings has delayed the case.

The arguments have centered on the privacy of the alleged victim. Defense attorneys want to admit evidence about the woman’s sexual past and have sought access to medical records, including those from a psychotherapist.

It’s closed because of UCMJ art. 32 and the Rules of Evidence–all of which Congress and the President by Executive Order have directed, and which POD has called for.  How then can the military be criticized for what the law, good sense, and sensitivity to the complaining witness requires?

2. It’s a paper 32–hello that’s all too common and may become even more common now that a complaining witness can refuse to testify.  Duh

Protect Our Defenders weighed in on the Chubb case in May after one of the stranger preliminary hearings in the academy’s history. During the hearing to determine if there was sufficient evidence to court-martial the highly touted football recruit from Georgia, neither prosecutors nor Chubb’s attorney’s offered witnesses.

The entire proceeding was handled on paper, which wasn’t made public.

In 35 years of military justice practice I’ve had (as a prosecutor or defense counsel) plenty of paper 32 drills. Who among you hasn’t?  This will happen more likely to happen in sexual assault cases these days because the CW can refuse to testify.  The evidence for the probable cause then becomes witness statements, emails, texts, and audio recordings.  That’s the way it works–and frankly that’s what Congress wants, so it is possible to avoid fair hearings.

3. Brian Purchia, a spokesman for the Washington, D.C., advocacy group, said the prosecution’s handling of the hearing raised concern.

Really.  And he has how much military justice experience?  Did he not talk to POD’s ED retired judge advocate Christensen before he made this statement?  Sure, it may be unusual because he does not recognize the Rules are changed as a direct result of the Congressional actions and the very advocacy of POD the organization he represents.  They can put in a FOIA request can’t they.  True, it may get refused for various reasons.

It took how long?!%#@

Well, in United States v. Gonzalez, a Coast Guard general court-martial, the sentence was announced on 27 July 2011.  The case did not get docketed with the CGCCA until 19 December 2014.  That means a total of 1,241 days went by before the appellate court began a mandated review under UCMJ art. 66(c).

And people wonder why appeals take so long.

But, there’s something even more significant about the process buried within the reasons for the delay in docketing the case with the court.

The Coast Guard’s Appellate Government Counsel provided the following explanation of the 1,071-day delay between CA action and docketing with this court in an affidavit dated 20 March 2015:

The servicing legal office conducted an R.C.M. 1112 review in both cases. Neither reviewer noted the fact that the BCD was approved (albeit suspended or remitted) and that the cases should immediately be referred to the Coast Guard Court of Criminal Appeals. When the records arrived in CG-0946, the records custodian, likely seeing the R.C.M. 1112 review, assumed the cases would be reviewed under Article 69(b). They were processed as Article 69(b) cases and sent to the office designated to handle Article 69 cases without having been reviewed by an attorney in CG-0946. The records were not reviewed by the Article 69 reviewing officer until late fall of 2014, at which time the reviewer recognized that the sentence in both cases included an approved BCD. The cases were then forwarded to the Coast Guard Court of Criminal Appeals on 19 December 2014.

That’s right–it appears that people who file a petition for a review by The Judge Advocate General under UCMJ art. 69(b), or have a review under UCMJ art. 69(a), wait months, years before a review might even start.  Congress should take another–the fifth I think–look at changing how a convicted servicemember is allowed to appeal any conviction, even a conviction that is sub-jurisdictional to a CCA.

We understand the Coast Guard to be a small Service, see United States v. Sullivan, but it would seem to be no small service to an accused that they get a prompt appeal.