Sen. Kerry requests

The Boston Globe has a piece and copy of a letter from Senator John Kerry to the Secretary of Defense.  In that letter Senator Kerry says:

Secretary Robert M. Gates
1400 Defense Pentagon
Washington, DC 20301-1400

Dear Mr. Secretary:

On behalf of the family of deceased U.S. Navy sailor Caitlin Trask, who was killed by her former boyfriend on February 12, 2009, I respectfully request an investigation by the Inspector General of the Department of Defense into the conduct of the United States Navy.

The notion that an active duty sailor could shoot and kill another sailor and then manage to avoid a dishonorable discharge is beyond my ability to comprehend. I would ask that the investigation determine if any options remain to facilitate a dishonorable discharge for Darren Mackie and to identify what Navy procedures need to be changed in order to ensure that no such travesty is ever allowed to happen again. Additionally, the investigation should determine if any Navy personnel were derelict in their duty with regards to this case.

Mr. Secretary, I have been working closely with the Trask family for well over a year now in their pursuit of justice for their late daughter. I can attest that this is extremely important to the surviving parents of a young woman who was proudly serving her country. A thorough, objective investigation is absolutely essential.
Thank you for your assistance and cooperation.

I had posted on this case here and here.

Some history.  The Eagle Tribune reported in February 2009:

IT3_20090214105046_JPGThe mother of a local Navy sailor slain in Virginia described the crime as "an accident" and yesterday showed compassion for the man accused of killing her daughter.

"It was just a terrible accident and she was only 20 years old," said Mary Trask of Haverhill, the mother of Caitlin Trask, 20, who was killed last Thursday in Newport News, Va.

mackie,_darren_william~021309_20090213113152_JPGNewport News police charged Trask’s former boyfriend, Darren Mackie, 22, with murder and use of a firearm in the commission of a felony. A Wisconsin native, Mackie was an airman aboard the USS Kearsarge.

However, once fuller facts became available the family attitude changed.  A report in DailyMe has this:

Don and Mary Trask of Bradford have written numerous letters to Navy officials, objecting to their decision to let the Commonwealth of Virginia prosecute Mackie. The parents’ outrage escalated to anger after they learned Mackie wouldn’t be court-martialed.

Wavy.com reported in February 2009 that:

[B]ecause the apartment complex is considered Navy Housing, but is owned in part by the City, Newport News police will continue handling the investigation, with a little help.  "We have a great working relationship with all of the federal agencies and NCIS is no exception and there was an agent of NCIS at the scene last night and is working very closely with our folks. So, there’s no territorial battle there," says Thurston.

While the Navy would still have had jurisdiction, an act against a Navy member in “Navy housing” would seem to be an additional factor in favor or exercising jurisdiction.  However, it appears a decision was made to leave the case in the hands of the Commonwealth’s Attorney for Newport News.  There was no double jeopardy concern and the Navy could have proceeded on a parallel course. There is only a double jeopardy concern if the person is being prosecuted in federal district court or there has been an ongoing court-martial.  Based on Solorio v. United States, 483 U.S. 435 (1987); Article 3, UCMJ, court-martial jurisdiction attaches if the person is subject to the UCMJ.

In March 2009, Navy Times reported:

A Virginia sailor who claimed he didn’t know his gun was loaded when he fatally shot his girlfriend in the head will not face a murder charge, a judge in Virginia ruled Wednesday. . . . Mackie, 22, will face a lesser charge of manslaughter when his case goes before a grand jury on April 13, according to a deputy court clerk.

Military Times reported in September 2009:

A Virginia sailor who claimed he didn’t know his gun was loaded when he fatally shot his girlfriend in the head was sentenced to 10 years in prison Aug. 31.  Mackie pleaded guilty earlier this year to a manslaughter charge in the Feb. 12 shooting death of his fellow sailor and off-and-on girlfriend, Information Systems Technician Seaman Caitlin Trask, 20.  Mackie told the judge he was joking around when he held the gun to Trask’s head and pulled the trigger, said one of the prosecutors, Charizza Rodgers-Johnson.

Trask’s mother told Navy Times she hopes the Navy will court-martial Mackie.

“Other sailors have been court-martialed for less. It’s the right thing to do. It’s a common-sense thing to  do,” said Mary Trask of Massachusetts.

But a spokesman for Naval Surface Forces said Mackie’s command has decided not to seek a court-martial.

Here is a press release by the Newport News Commonwealth’s Attorney on the results of trial, which includes this piece about the sentence.

Sentencing guidelines in this case called for Mackie to be sentenced to either probation or incarceration from one day to six months. Circuit Court Judge Peter Tench agreed with the Commonwealth that, in this particular case, the guidelines were wholly inadequate.  Sentencing guidelines are discretionary in Virginia – judges may sentence below or above guidelines in cases for which they determine deviation from the guidelines to be appropriate.  Manslaughter carries a maximum sentence of 10 years.

It appears that he will get about two years good time.  He was 22 at the time of sentencing and the CA indicates he’ll be released around 30 years of age.

There is this comment on Mackie’s statements:

Trask initially claimed to have accidently shot Miss Trask because he stumbled walking with his personal handgun, as well as to have accidently shot her while cleaning his weapon. His third explanation was that he was playing with the firearm; he pointed it at Miss Trask’s head from approximately one foot away, said her name and pulled the trigger.

Mackie has been given an other than honorable conditions discharge (probably for a civilian conviction and serious offence)  in accordance with Paragraph 1910-010, et. seq., Navy Military Personnel Manual (1910-142, 144).

In January 2010, The Daily Press reported:

The White House has turned down a request from the parents of a Navy sailor killed in Newport News last year to order a court-martial for the fellow sailor convicted of killing her.

The problem appears that is was too late even if the President had the authority and did intercede to encourage a court-martial.  There was a lack of jurisdiction to court-martial.  Mackie was given an administrative discharge.  Jurisdiction was terminated.  See e.g. United States v. Hart, 66 M.J. 273, 275 (C.A.A.F. 2008).

As this court recognized long ago, "It is black letter law that in personam jurisdiction over a military person is lost upon his discharge from the service, absent same saving circumstance or statutory authorization."

Cf, United States v. MacDonald, 435 U.S. 850 (1978)(Yes, that MacDonald);  Huang v Secretary of the Army, 23 F Supp 2d 1377 (N.D. Ga. 1998.)(Army may not revoke discharge absent fraud on the part of the discharged person).

The argument is that once the following steps are completed:

a member of an armed force may not be discharged or released from active duty until his discharge certificate and his final pay or a substantial part of that pay, are ready for delivery to him; to effectuate an early discharge, there must be:  (1) a delivery of a valid discharge certificate; (2) a final accounting of pay; and (3) the undergoing of a clearing process as required under appropriate service regulations to separate the member from military service.

there is no option to impose a dishonorable discharge.

Senator Kerry asks:

to identify what Navy procedures need to be changed in order to ensure that no such travesty is ever allowed to happen again.

Actually it would be procedures applicable to all of the services each of which has a regulation on prosecuting cases where there is a civilian case pending or concluded.