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.

The Real Cost Of Having Commanders In Charge Of Military Justice

This article has appeared in Task & Purpose as a result of United States v. Woods,  decided by the Court of Appeals for the Armed Forces on 18 June 2015.

Incredibly, a senior naval officer was appointed to be the president of a court-martial panel when in a questionnaire prepared when first told she’d be a court-martial member in the future, the member answered thus about the presumption of innocence.

In this case, the convening authority selected [x] as the senior member of the panel that would try Appellant for sexual assault, despite having access to her preliminary member’s questionnaire, in which [x] stated her belief that “enforcement of ‘you are guilty until proven innocent’ (just the opposite as in the civilian sector) is essential because the military needs to be held to a higher standard just for reasons of our mission.” During voir dire, [x] elaborated on this response, but reasonable observers could interpret her responses as confusing rather than clarifying her views (emphasis added).

On the surface, this looks bad for the line officer convening authority.  Although I’m sure there are many out there cheering for the member who in their minds got it right on the presumption.  Once you understand how the naval service selects members for a panel, you can see that they lawyers and the legally trained staff were more at fault than the convening authority.

So—I disagree with The Weirick that the existence of MJIA would have prevented United States v. Woods from happening.  Or at least, I disagree with The Weirick’s or Mr. Christensen’s implication that Woods would not have happened if MJIA were in place.  That is because it was likely the indifference or negligence of the very legal professionals running the system at best or their hubris.

In all of the Services, the staff judge advocate office (SJA) under the supervision of the SJA and the senior prosecutor, collect nominations for service as a court-martial member.  Only in the naval services do they also obtain a fairly detailed questionnaire.  The other Services include a brief summary of the person’s record.  These documents are collected into a binder and a “standing” court-martial order prepared for the SJA.  Most general court-martial convening authorities will appoint a panel for six months or a year.  Once the panel documents are prepared, they are taken to the convening authority for review, discussion, and then appointment (been there done that).  The appointing documents and the supporting questionnaires then sit in the binder for the term of those members appointment, for all to see.  The problem would not likely have arisen in the Army or Air Force because they don’t bother with questionnaires.

So the legal personnel failures are:

  • Someone didn’t read the questionnaires; the staff only collected, copied them, and put them in the binders.
  • The SJA didn’t read them.
  • The chief of justice or MOJO didn’t read them.
  • The TC didn’t read them.

Or worse.

  • The SJA read them but ignored them.
  • The chief of justice or MOJO read them but ignored them.
  • The TC read them but ignored them.

Either way, if the legally trained staff had done what the defense counsel did . . . ?

OK, so the commander failed to catch the error that his fully trained legal staff failed to catch.  That does not now justify saying that if MJIA were in place the Woods case would not have happened.  That’s silliness to be expected of some.

I am in favor of the MJIA and enactment of the O.’Callahan / Relford factors for jurisdiction.  But I cannot in good conscience use Woods to argue for those changes.  This convening authority was failed by his staff.

Protect Our Defenders (POD) has this to say about the recent vote on Sen. Gillibrand’s Military Justice Improvement Act.

Last week, 50 U.S. Senators stood with survivors and voted for Senator Gillibrand’s Military Justice Improvement Act (MJIA).

For two years in a row, a majority of the Senate has told the Pentagon to fix the arbitrary and biased military justice system. Unfortunately, this common-sense legislation was blocked with a threat of a filibuster, as it was last year, requiring 60 votes to pass instead of a simple majority.

But one thing is clear: we are gaining ground in this struggle and it is because of people like you. Despite the Pentagon’s misinformation campaign, two Republican Senators who voted against MJIA last year switched their vote in support of survivors. We also won over three new Senators who were voting on MJIA for the first time. This was no small feat, and shows that momentum continues to be on the side of justice (emphasis added).

What they do not say is that they have lost votes, having gone from 55 to now 50.

What they do not say is that eight new senators voted against the MIJA.

There are many reasons why the vote totals have changed.  A simple one is that quite a few supporters of the MJIA are no longer in Congress.  So that doesn’t suggest Congress is uninterested in an important subject.

As a defense counsel, I’m always looking for ways in which the prosecutor has opened the door to relevant evidence, but which for some reasons has been excluded or can’t be offered.  MRE 412 comes to mind, as happened to me at trial in United States v. Savala, 70 M.J. 70 (C.A.A.F. 2011).

But, BUT, as a defense counsel, I’m equally conscious of how I can do something to open the door.  I might have successfully litigated a motion in limine to exclude evidence.  But now I have the key and have to be careful I don’t give it to the prosecution to use.

There are other ways the defense can open the door to otherwise inadmissible evidence.  United States v. Martin just decided by NMCCA is a case in point.  Although the appellate court ultimately found the proescutions questions plainly wrong, the damage was done and they court found no prejudice.

From legal precedent, we discern several, nonexclusive factors relevant to an assessment of whether “human lie detector” testimony was prejudicial: (1) the role of the Government counsel in initiating or furthering objectionable testimony (Kasper, 58 M.J. at 314); (2) the role of the defense counsel, particularly if it appears the defense initiated the testimony for strategic reasons (United States v. Schlamer, 52 M.J. 80 (C.A.A.F. 1999)); (3) the defense’s failure to object or request cautionary instructions (United States v. Halford, 50 M.J. 402 (C.A.A.F. 1999)); (4) whether the witness has been asked for specific conclusions or their opinion about the truth or falsity of another’s statements or allegations, or about whether a crime occurred (United States v. Anderson, 51 M.J. 145 (C.A.A.F. 1999); United States v. Birdsall, 47 M.J. 404 (C.A.A.F. 1998); United States v. Marrie, 43 M.J. 35 (C.A.A.F. 1995)); (5) whether the testimony in question is on a central or peripheral matter (Kasper, 58 M.J. at 314; United States v. Robbins, 52 M.J. 455 (C.A.A.F. 2000); Birdsall, 47 M.J. at 404); (6) whether the trial was before members or by military judge alone (Robbins, 52 M.J. at 455; United States v. Raya, 45 M.J. 251 (C.A.A.F. 1996)); and (7) the remedial action, if any, taken by the military judge. United States v. Eggen, 51 M.J. 159 (C.A.A.F. 1999). See United States v. Jones, 60 M.J. 964, 969 (A.F.Ct.Crim.App. 2005). While the trial was before members and while Cpl AI was asked specifically whether he believed his wife was lying – the central issue in this case – we are not convinced that the error had an unfair prejudicial impact on the member’s deliberations.


A former client directed me to the Air Force Reporter, Vol. 42, No. 1 (2015).

In reading about an aspect of his case, my eyes rolled down to this.  It is on page 50.

CASE 2 Prior to a court-martial, a Special Victims’ Counsel (SVC) advised a client that the SVC would not be attending the trial in person due to a personal conflict, but that if the client needed anything to let the SVC know. The SVC did not notify supervision and did not make arrangements for another SVC to attend the trial in their absence. The court-martial started with several motions that involved the client. Following the motions hearing, the client contacted the SVC and requested that the SVC attend the remainder of the court-martial. The SVC attended the remainder of the court-martial proceedings.

We often hear of prosecution misconduct going unchallenged or undisciplined.  Two events this week are noteworthy though in efforts to hold prosecutors accountable.

Armstrong v. Daily, et. al., is a case out of the Seventh.  The M-W Journal Sentinal extracts this:

He brought a civil rights suit against the prosecutor on his case, John Norsetter, and two crime lab workers, Karen Daily and Dan Campbell. All three sought to have Armstrong’s suit dismissed on immunity grounds, but the 7th Circuit U.S. Court of Appeals affirmed the trial judge’s refusal to grant that request:

Armstrong alleges a shocking course of prosecutorial misconduct,” the court wrote. “According to the complaint, the prosecutor quickly fixated on Armstrong as the murderer and sought to build a case against him by any means necessary.

“Those means included destroying potentially exculpatory evidence from the crime scene, arranging for the highly suggestive hypnosis of an eyewitness, contriving suggestive show – ups for identification, and concealing a later confession from the true killer that was relayed by a person with no apparent motive to fabricate the report.

“Finally, the prosecutor enlisted state lab technicians to perform an inconclusive DNA test that consumed the last of a sample that could have proven Armstrong’s innocence and pointed to the true killer. If these allegations are true — and some are based on the state court’s factual findings — the prosecution of Armstrong was a single – minded pursuit of an innocent man that let the real killer to go free.”

On another front, I’m sure you have seen this reported in Slate.

Prosecutorial and police misconduct are often dismissed as just a few bad apples doing a few bad apple-ish things. But what happens when it’s entrenched and systemic and goes unchecked for years? That looks to be the case in Orange County, California, where the situation got so completely out of hand this spring that Superior Court Judge Thomas Goethals issued an order disqualifying the entire Orange County District Attorney’s Office (that’s all 250 prosecutors) from continuing to prosecute a major death penalty case.


The Georgia Supreme Court extends Padilla

In Alexander v. State, decided on May 11, the Georgia Supreme Court agreed that a failure to advise on parole issues from a guilty plea was ineffective assistance under Strickland v. Washington.

Military lawyers know there are two specific areas they must ensure adequate advice about to clients:  the possible impact of sex offender registration and possible adverse citizenship and immigration decisions.  Now–at least in Georgia–you can add one more: impacts on clemency and parole.

In Padilla v. Kentucky, 559 U.S. ___ (2010),  the Supreme Court held that because counsel must inform a client whether his plea carries a risk of deportation, Padilla has sufficiently alleged that his counsel was constitutionally deficient. Whether he is entitled to relief depends on whether he has been prejudiced.

Most military lawyers like myself make the effort to describe the clemency and parole impact of guilty pleas versus being found guilty after trial.  One of my mantra’s is that, “acceptance of responsibility for the confining offense,” gets you a greater chance at parole.

In Denedo v. United States, 556 U.S. 904 (2009), just a year before Padilla, the court determined that a failure to properly advise on immigration status was deficient assistance.  Denedo is a military case.

In United States v. Miller, the Court of Appeals for the Armed Forces, determined there was no ineffective assistance in failing to advise a client about sex offender registration requirements during a guilty plea.  But strongly suggested, which we all do, that such advice ought to be given in all future cases.

So, I ask, could a requirement to properly advise on parole come next?  Alexander has an excellent survey of defense counsel obligations.

Listen up:  “Every occasion of a proved false allegation has an insidious effect on public confidence, sometimes allowing doubts to creep into when one shouldn’t exist.”  Said the judge on sentencing.

That’s right, the failure to hold people accountable for false accusations harms true victims.

Col Christensen of POD says this doesn’t happen and that people don’t make false allegations for these reasons.  Sorry mate, read this.

A girl who falsely accused two army soldiers of trying to rape her because she felt ashamed about sleeping with them both has been jailed.

The following is called a motive to lie in courtroom parlance.

The following day her boyfriend heard rumours she had been unfaithful and confronted her.

Richess ‘panicked’ and made up the false claim that the two innocent men, aged 23 and 24, had forced themselves on her because she was too ashamed to tell him she had cheated on him.

Her partner of three years made her go to the police to report the ‘attack’.

Richess even gave a ‘tearful’ account of the co-called crime to officers and ‘illicitly gained their empathy.’

Yes, tears can be faked, as can other “symptoms” of sexual assault.  Yes, a false complainer can present with all the signs and symptoms of someone actually assaulted.

In the U.S. military, it is unlikely, not impossible, that any action would have been taken against this liar, except coddling her because she deserves concern for her problems.

Ask the prosecutor in this case.

In re Kline.

Military prosecutors are bound by Service rules of professional responsibility.  Those rules are based on the ABA Model Rules.

The ethical rule regarding prosecutorial disclosure in the District of Columbia, as in most states, incorporated the “tends to negate guilt” standard promulgated by the ABA in its Model Code of Professional Responsibility to define the class of evidence required to be disclosed under Rule 3.8.

The Supreme Court reiterated that basic tenet in Cone, noting that “[a]lthough the Due Process Clause of the Fourteenth Amendment, as interpreted by Brady, only mandates the disclosure of material evidence, the obligation to disclose evidence favorable to the defense may arise more broadly under a prosecutor’s ethical or statutory obligations.” Cone v. Bell, 556 U.S. 449, 470 n.15 (2009) (citations omitted).

1 May 2015 saw the release of a number of reports and memorandums regarding military sexual assault.  Some initial takeaways (which in my view certain people are either deliberately ignoring or misreporting).

No POD, the conviction rate is not 5%– the conviction rate is 67% for penetrative offenses, and 84% for non-penetrative (conctact) offenses.

If POD is claiming only a 5% conviction rate, then they are presuming guilt in each allegation made, regardless of the truth of the claim and the amount of evidence available.

No POD, all of the reported conduct is NOT rape.  The RAND survey covered both penetrative and non-penetrative contact offenses.  (And, of course, an unwanted French kiss meets the definition of a penetrative offense.)

No POD, the potential false reporting rate is 24% in the military, which is possibly higher or the same with the civilian rate.

  • The report addresses a range of misconduct-it does NOT report on rape.
  • Out of the 6,131 reports of sexual assault in FY 2014, there were 4,768 Service Member victims who made a report for an incident that occurred during military Service.
  • According to the 2014 RAND Military Workplace Study, the percentage of active duty women who experienced unwanted sexual contact in the past year declined from an estimated 6.1% in 2012 to an estimated 4.3% in 2014, a statistically significant decrease.11 For active duty men, the estimated prevalence rate of unwanted sexual contact trended downwards from 1.2% in 2012 to 0.9% in 2014.12, 13, 14 Based on these prevalence rates, an estimated 18,900 Service members experienced unwanted sexual contact in 2014, down from the 26,000 Service member victims estimated in 2012.

Here is the relevant military justice data from the 2014 report.

  • The following information is for those subjects’ cases whose investigations were complete and case disposition results were reported in FY 2014. In FY 2014, 2,625 subjects investigated for sexual assault were primarily under the legal authority of DoD. However, as with the civilian justice system, evidentiary issues may have prevented disciplinary action from being taken against some subjects. In addition, commanders declined to take action on some subjects after a legal review of the matter indicated that the allegations against the accused were unfounded, meaning they were determined to be false or baseless. Command action was not possible in 24% of the cases considered for action by military commanders (Figure S) in FY 2014.
  • For the remaining 76% of cases considered for command action, commanders had sufficient evidence and legal authority to support some form of disciplinary action for a sexual assault offense or other misconduct. Figure S displays command action taken from FY 2009 to FY 2014 and Figure T displays command action in FY 2014 for penetrating versus sexual contact crimes. Since FY 2007, the percentage of subjects who had charges preferred to court-martial has steadily increased and the percentage of subjects for whom command action was not possible has steadily declined.
  • Not all cases preferred to court-martial proceed to trial. In certain circumstances, DoD may approve a resignation or discharge in lieu of court-martial (RILO/DILO). Furthermore, Article 32 (pre-trial) hearings can result in a recommendation to dismiss all or some of the charges. Commanders may use evidence gathered during sexual assault investigations and evidence heard at an Article 32 hearing to impose a nonjudicial punishment (NJP) against subjects. As seen in Figure U, the majority of cases preferred to court-martial, for both penetrating and sexual contact offenses, proceeded to trial.