Articles Posted in Up Periscope

The Washington Post has an article by Orin Kerr on a report in the New York Times about a bill introduced in Congress to change or clarify the “mens rea” required in federal criminal statutes.  I probably should not comment on where the proposal may have come from. It is proposed that:

§ 11. Default state of mind proof requirement in Federal criminal cases

If no state of mind is required by law for a Federal criminal offense—

(1) the state of mind the Government must prove is knowing; and

(2) if the offense consists of conduct that a reasonable person in the same or similar circumstances would not know, or would not have reason to believe, was unlawful, the Government must prove that the defendant knew, or had reason to believe, the conduct was unlawful.

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.

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.

For some time now each of the Services have been undergoing a draw-down.

Naturally, you would think that they would cut those with significant misconduct or performance issues, and that there should be any number who would fit into that category.

Here is an interesting piece about some of the reasons most Army majors have been let go.

It’s all about evals (and timing I would say), not racially motivated.

No this is not a comment on T. Scott McLeod’s book. Nor is it a comment on how to make providence work in your favor, although by the results it could be.

Oh, sorry.  Ya gotta read United States v. Stout, decided by ACCA on 25 July 2014.

The accused plead guilty to abusive sexual contact with a 14 year old, indecent liberty with a child, and possession of child porn, all violations of the UCMJ and prosecuted at court-martial.  The MJ gave him a BCD and 8.  ACCA determined the MJ erred in accepting any of the pleas and set aside the findings and sentence.

As you start to read the opinion you are initially thinking he’s minimizing – as did the court initially think.  You’ve been there right, as a military defense lawyer – tell the judge just enough, etc., etc., etc.

The court reminds of the very point about how an accused who minimizes during the providence inquiry doesn’t necessarily have an improvident plea.  The court said some single or minor inconsistency may be mere attempts by appellant to rationalize his actions, insufficient to invalidate the providence of the plea. Ultimately Stout’s statements went beyond minimization and set up substantial inconsistencies.  I might add that if the facts are as Stout and the stipulation say, this is not a case that should have been prosecuted.  But it’s 2014 and . . . (insert rant if you care to). The Army Court of Criminal Appeals (ACCA) cites to United States v. Goodman, 70 M.J. 396 (C.A.A.F. 2011); United States v. Rokey, 62 M.J. 516 (A. Ct. Crim. App. 1995), as authority.

Often an accused is reluctant to admit to a particular aspect of an offense. However, that should not vitiate his guilty plea if he recognizes that the evidence against him will prove the point, and he admits his guilt to the offense. We should not overlook human nature as we go about the business of justice. One aspect of human beings is that we rationalize our behavior and, although sometimes the rationalization is “inconsistent with the plea,” more often than not it is an effort by the accused to justify his misbehavior. A good trial judge can usually sort out the guilty plea and determine if an accused is so pleading because he has committed the offense charged.

United States v. Hall, 73 M.J. 645, 648 (A.F. Ct. Crim. App. 2014).

I always knew there was a reason – other than the case name – why we old timers refer to the Care inquiry (along with other names such as Suzuki credit, Allen credit, etc., etc., etc.). The Court of Appeals for the Armed Forces has over time ensured that before an accused can plead guilty to a UCMJ offense at court-martial, there must be a very careful inquiry of the facts and circumstances. When a military judge fails to conduct a careful inquiry which leads to inconsistency issues, the decision will be reviewed for an abuse of discretion.

I wonder where the TC was in all of this – not putting up a stout defense of the record apparently.  Message to TC, you have a duty to your client to protect us from an errant judge.  You need not feel intimidated and remain silent when the military judge asks you and the military defense counsel if you want any additional questions.

Do I have a felony is a frequent question to which the answer is – maybe.  Of course the questioner is interested in the collateral effect of a special or general court-martial conviction.  This becomes particularly important if you continue to commit crimes after release from the brig and the military.

Are courts-martial courts under the Armed Career Career Criminal Act – yes says The Fourth, as do The Ninth and The Seventh.

Pursuant to the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), and section 4B1.4 of the Guidelines, an individual who violates § 922(g) and has “three previous convictions by any court referred to in section 922(g)(1) . . . for a violent felony or a serious drug offense, or both, committed on occasions different from one another” qualifies as an armed career criminal. 18 U.S.C. § 924(e)(1) (emphasis added).

United States v. Grant, ___ F.3d ____ (4th Cir. June 3, 2014), slip op. at 4.

Grant challenged a determination that a general court-martial conviction for aggravated assault and for kidnapping was not from a qualifying court under the ACCA.  This is a case of statutory interpretation of the language conviction by “any” court.  First the court determines that a qualifying court needs to be a domestic court, referring to Small v. United States, 544 U.S. 385 (2005).  The court then engages in a review and discussion of the court-martial jurisdiction and procedure.

The court adopts the reasoning in United States v. Martinez, 122 F.3d 421 (7th Cir. 1997), and United States v. MacDonald, 992 F.2d 967 (9th Cir. 1993); each of which appears to be based on United States v. Lee, 428 F.2d 917 (6th Cir. 1970).

Note:  All I can find on LEXIS is a petition to CMA in October 1980, from ACMR.

Did he go AWOL?

In June 2012, Michael Hastings (of GEN McCrystal “fame”) appears to have made that suggestion in a lengthy piece published by Rolling Stone.

The mother and father sit at the kitchen table in their Idaho farmhouse, watching their son on YouTube plead for his life. The Taliban captured 26-year-old Bowe Bergdahl almost three years ago, on June 30th, 2009, and since that day, his parents, Jani and Bob, have had no contact with him. Like the rest of the world, their lone glimpses of Bowe – the only American prisoner of war left in either Iraq or Afghanistan – have come through a series of propaganda videos, filmed while he’s been in captivity.

Within the article Hastings says:

Bowe Bergdahl had a different response. He decided to walk away.

. . . .

Bowe returned to his barracks, a roughly built bunker of plywood and sandbags. He gathered up water, a knife, his digital camera and his diary. Then he slipped off the outpost.

The response to Bergdahl’s release has been across the board.  See e.g., Critics Rouse as US Defends Swap With Taliban

Among the responses, Brad Knickerbocker of Christian Science Monitor has this headline today – Did Bowe Bergdahl go AWOL in Afghanistan?

Ils accusent.

Real and to be expected-a natural consequence of how Congress and perhaps leadership is approaching the real and very important issue of preventing sexual assault? reports, In Survey, Lackland DIs Rip Leaders, Fear Recruits, 29 May 2014.

A survey of basic-training instructors conducted during the worst sex scandal in Air Force history revealed a sharp distrust of senior commanders at Joint Base San Antonio-Lackland and a widespread fear of recruits.

In what might seem an obvious consequence of how the issue of sexual is being addressed:

“I am terrified I’m going to have my career ended by a trainee that drops a comment because I hurt his feelings or they just don’t like me,” one instructor wrote in the survey.  “Leadership does not back us up. At all,” the instructor continued. “I’ll give it to you in a nutshell: trainees run this place, MTI’s are afraid constantly of getting in trouble over hurting a spoiled 18-year-olds’ feelings, and no one is willing to change that,” one instructor wrote.

I’m not certain these thoughts are limited to MTIs at Lackland.  And perhaps this is a consequence of denial as well as training that only a complaining witness is to be believed.  As evidence of the leadership the article goes on:

 Rand found that more than half of the instructor corps worked more than 11 hours a day last summer, and that two thirds of “street” MTIs — those who train recruit flights — slept five hours or less a day.

Another one-third of supervisors and other instructors also said they slept five hours or less a day.

Camerer (the wing commander) said he was surprised to learn of the problem, but added that some instructors told him “they just didn’t want to leave their flight.”  (Emphasis added.)

Cooperation and teamwork are necessary elements of leadership, and vital to a correction of problems.

 Instructors also expressed concerns about interaction of Col. Deborah Liddick, commander of the 737th Training Group, with those running the group’s eight training squadrons.  One said, “It is very apparent that she does not trust anyone who is an MTI and she continues to discredit the feedback given to her on decisions made.”

But wait, the wing commander said that, “I need my MTIs to know we listen to them.”

Perhaps the Rand Survey can be extended throughout the Services as part of sensing sessions and a 360 view of how sexual assaults in the military are being addressed in actuality.