Articles Posted in Worth the Read

screenshot-by-nimbus has published a symposium – articles related to military justice, specifically sexual assault cases.  Both sides will find something in the articles. Of particular interest are two articles:  Major Seamone’s article about secondary affect on military justice practitioners from over exposure to sexual assault cases, and Colonel Schenk’s disagreement with the statistics and compilation of sexual assault statistics.

Major Evan R. SeamoneSex Crimes Litigation as Hazardous Duty: Practical Tools for Trauma-Exposed Prosecutors, Defense Counsel, and Paralegals, 11 Ohio St. J. Crim. L. 487 (2014).

Lisa M. SchenckInforming the Debate About Sexual Assault in the Military Services; Is the Department of Defense Its Own Worst Enemy?, 11 Ohio St. J. Crim. L. 579 (2014).

On occasion I note civilian court opinions that reference or rely on military appellate case law. In my view, because of technology we see more courts, especially federal courts, cite to military appellate case law. In United States v. Buchanan, the accused sought to prevent a guardian ad litem (GAL) from filing motions. The court denied the accused’s motion, and in the process cited to LRM v. Kastenberg, 72 M.J. 364, 358 (C.A.A.F. 2013).

Safeguarding the Commander’s Authority to Review the Findings of a Court-Martial, Andrew S. Williams, Brigham Young University, June 5, 2013, 28 BYU Journal of Public Law (April 2014, Forthcoming)


“Do you really think that after a jury has found someone guilty, and dismissed someone from the military for sexual assault, that one person [the commander], over the advice of their legal counselor, should be able to say, ‘Never mind’?” Senator Claire McCaskill recently posed this question in a hearing before the Senate Armed Services Committee, as she and others expressed outrage over the disapproval of a sexual assault conviction by a military commander. Her question reflects a justifiably profound respect for the verdicts of juries, one that runs deep in American legal tradition, but reveals a basic misunderstanding about the court-martial panel in the military.

The court-martial panel is not a true jury. Federal juries in criminal cases must have twelve jurors and be unanimous. State juries must have at least six jurors, and five of six jurors voting to convict is not enough to satisfy the Sixth Amendment. Unlike federal and state juries, the panel that convicted the accused in the sex assault case discussed above had only five members and it did not have to be unanimous – only a two-thirds vote, or four out of five, was needed for a conviction. No five-member panel, unanimous or not, is a jury. Because the panel was not a true jury, the panel’s verdict will not always resemble the commonsense judgment of a jury. The Supreme Court made clear that court-martial panels are not juries.

Because a court-martial panel is not a true jury, the commander should retain the authority to review its findings for this reason alone. The commander’s authority to review the findings is actually a safeguard against the court-martial panel’s verdict, which is sometimes not supported by the evidence.

Part I introduces the right to trial by jury as the key to liberty in the American scheme of justice. It also explains why the Founding Fathers denied military members this right along with all other protections of the Bill of Rights. Part II discusses the historical foundations of the court-martial and why the military justice system developed separately from the civilian justice system. The court-martial was and still is, first and foremost, a tool of discipline and not a court of law.

Part III describes the essential differences between panels and juries and why those differences materially affect the reliability of verdicts. Part IV discusses the safeguards enacted by Congress to make up for the panel’s structural flaws. These safeguards are as unorthodox to the American scheme of justice as they are now controversial. They should not be eliminated unless the panel’s structural flaws are also corrected. Part V contains recommendations for amending the Uniform Code of Military Justice, to include a return to the original understanding that courts-martial should be limited in times of peace to disciplinary infractions.

If the commander’s role seems antiquated today, so, too, is the denial of genuine due process to the men and women who serve in the U.S. Armed Forces.


Last Words: A Survey and Analysis of Federal Judges’ Views on Allocution in Sentencing

Mark W. Bennett

U.S. District Court (Northern District of Iowa)

Ira P. Robbins

American University – Washington College of Law

March 10, 2014

Alabama Law Review, Vol. 65, No. 3, 2014
American University, WCL Research Paper No. 2014-9 

Allocution — the penultimate stage of a criminal proceeding at which the judge affords defendants an opportunity to speak their last words before sentencing — is a centuries-old right in criminal cases, and academics have theorized about the various purposes it serves. But what do sitting federal judges think about allocution? Do they actually use it to raise or lower sentences? Do they think it serves purposes above and beyond sentencing? Are there certain factors that judges like or dislike in allocutions? These questions — and many others — are answered directly in this first-ever study of judges’ views and practices regarding allocution.

The authors surveyed all federal district judges in the United States. This Article provides a summary and analysis of the participants’ responses. Patterns both expected and unexpected emerged, including, perhaps most surprisingly, that allocution does not typically have a large influence on defendants’ final sentences. Most of the judges agreed, however, that retaining this often-overlooked procedural right remains an important feature of the criminal-justice process.

This Article also synthesizes judges’ recommendations for both defendants and defense attorneys aiming to craft the most effective allocution possible. Critical factors include preparing beforehand, displaying genuine remorse, and tailoring the allocution to the predilections of the sentencing judge.


SCOTUSBlog has this of potential interest.

The petition of the day is:

New Mexico v. Herring

Issue:  Whether Berghuis v. Thompkins requires advice that a suspect has the right to stop talking at any time in order to establish an implied waiver of Miranda rights.

This case illustrates, again if anything did, the value of video and audio recorded interrogations.  Oooops.  I meant suspect interviews.  Interrogation is of course a loaded word, so investigators are cautioned to use the less accusatory and loaded terminology.  Just more of the psychology of getting confessions.

For those interested in the history of the Constitution and its judicial interpretation, the George Washington Law Review has a:


edition.  Volume 80, No. 5, includes:

A Dialogue on Statutory and Constitutional Interpretation
The Honorable Antonin Scalia & John F. Manning
80 GEO. WASH. L. REV. 1610 (2012)


A Dialogue with Federal Judges on the Role of History in Interpretation
Amanda L. Tyler, Moderator, The Honorable Frank H. Easterbrook, The Honorable Brett M. Kavanaugh, The Honorable Charles F. Lettow, The Honorable Reena Raggi, The Honorable Jeffrey S. Sutton & The Honorable Diane P. Wood
80 GEO. WASH. L. REV. 1889 (2012)

h/t to Prof. Berman TG.

The title of this post is the headline of this new New York Times segment of its series "Room for Debate."  The NY Timesbrought together five leading lights to comment on this question (all of whom appear to supply variations on the answer "Yes").  Here is how the segment sets up the debate, followed by links to the must-read pieces that provide five different answers to the question:

A U.S. district judge in Denver recently rejected a plea bargain in a child pornography case because the defendant had agreed to waive his right to appeal. The judge said such a deal would undermine the purpose of appellate courts. (He later accepted a plea bargain without that stipulation.)

Legal observers — including the editorial board of The New York Times — focused on the judge’s concern as a sign that plea bargains have gotten out of control and in the process given prosecutors too much power.  When one party decides whether to bring charges, what charges to bring and whether to offer a plea bargain, is the justice system lacking checks and balances?

The Inspector Rutledge detective stories are a favorite of mine.  To quote an Amazon review:

[T]he books are set in the period just after the First World War, and Inspector Rutledge is a veteran of said conflict. Even more unique, he’s haunted by the ghost of one of his subordinates, a corporal whom Rutledge had to shoot and kill after the man panicked and tried to run away during a battle. The dead man doesn’t blame Rutledge for the incident, not exactly anyway, and serves as a sort of alter ego for Rutledge. You’re never entirely certain whether Hamish MacLeod’s ghost is really there, or merely a figment of Rutledge’s imagination, given that he was horribly scarred psychologically by the war.

Hamish talks to the inspector and is often quicker to spot a problem, an inconsistency, or a wrong – “b’ware” he’ll say, or sometimes just “’ware.”

As defense counsel we all need a Hamish (not one we have killed of course).  Sentencing is often the time in a trial when the ability to put as much favorable influential evidence or information before the fact-finder is at its apogee.  That’s a good thing because the actual fundamental purpose of sentencing is – to parse the rules, “to mete out an appropriate sentence for this offender and offenses.”  For some reason that’s why it struck me that United States v. Takara, ACM S31832 (A.F. Ct. Crim. App. 13 July 2012)(unpub.), is worth the read.

James Gow, War and War Crimes:  Military, Legitimacy and Success in Armed Conflict, Coumbia Univ. Press, Dec. 2011.

Necessity and proportionality inform the laws of war, but how do these principles work in modern warfare? What new pressures do the practitioners of war face, especially in light of rapid changes in strategy and policy and an increasing emphasis on ethics and legality?
Wars waged in fluctuating environments make the legitimacy of armed force hard to justify, especially among diverse international and transnational publics. More than ever, strategy has come to embrace justice and law as crucial components of military success, but legitimacy is fragile and easily contested, and today’s militaries struggle to respond positively, consistently , and legally to an ever-shifting dynamic. Drawing on empirical research and interviews with seasoned military professionals, this volume describes how militaries can work successfully within the politics-law-strategy nexus to foster and maintain a sense of legitimacy in war. James Gow clearly defines the mutual relationship between wars and their outcomes, pinpointing the moment when a war act becomes a war crime, especially within multidimensional combat. Taking an initial, bold step in reconciling a troubling and taboo issue, Gow provides strategists, policymakers, and others with a framework for mitigating negative outcomes.

ZanderDo you remember Marine Captain Zander?  A distinguished graduate of the Naval Justice School, and having participated in reviewing about 200 of his ROT’s a pretty good trial lawyer viewed against his contemporaries.  I posted about his activities in 2009, “I’ve been Zandered! Who remembers that name?”  Well he’s back – in court.

Deseret News reports.

A BYU law school graduate who passed himself off as a decorated war veteran and licensed military attorney faces more than two dozen federal charges, including allegedly stealing thousands of dollars from the Paiute Indian Tribe.

Jeffrey Charles Zander, 55, of Cedar City, is charged in an indictment with 26 counts of theft from a program receiving federal funds, money laundering, and failure to file tax returns. He was arrested in Nebraska last week following an FBI and IRS investigation.

He is accused of depositing at least $176,000 into his personal bank account.

Here is a piece from thejournal of Humboldt County, CA.

Remember Jeff Zander? He was the semi-legendary con man that the Redwood Region Economic Development Corporation hired to be its executive director a couple of years ago — inexplicably.

As to Zander’s court-martial, see United States v. Zander, 46 M.J. 558 (N-M.C. Ct. Crim. App. 1997), pet. denied 48 M.J. 18 (C.A.A.F. 1997).

A military judge, sitting as a general court-martial, tried the appellant on various dates in July, August, and September 1994. The court convicted him, pursuant to his pleas, of two specifications of making a false official statement, twenty specifications of conduct unbecoming an officer and gentleman, and two specifications of wearing unauthorized awards in violation of Articles 107, 133, and 134 of the Uniform Code of Military Justice, 10 U.S.C. §§ 907, 933, and 934 (1994) [hereinafter UCMJ], respectively. The court sentenced him to confinement for 7 years, forfeiture of all pay and allowances, and a dismissal. On 28 April 1995 the convening authority approved the sentence. However, pursuant to the terms of the pretrial agreement, the convening authority suspended confinement in excess of 120 days and forfeitures in excess of $ 750.00 pay per month for 4 months for a period of 12 months from the date of trial.