Court-Martial Trial Practice BlogHere is a link to Dave Schlueter and Lisa Schenk’s White Paper
AMERICAN MILITARY JUSTICE: RETAINING THE COMMANDER’S AUTHORITY TO ENFORCE DISCIPLINE AND JUSTICE.
[https://www.court-martial-ucmj.com/white-paper-on-military-justice-reforms-2020-w-app/]
Articles Posted in MJ Reform
UCMJ and MCM changes coming
The DoD Joint Service Committee on Military Justice has some new “publications” on its website. But more importantly, there are a number of proposed changes not yet on their site (but which are available on CAAFLog).
- A draft Executive Order indicating an effective date for the MJA of January 1, 2019.
- Annex 1 to the draft Executive Order, making changes effective immediately once the Order is signed. Of note, are changes to regulate the sealing of all or parts of the record, changes to MRE 311, which adds, “that the evidence was obtained by officials in objectively reasonable reliance on a statute or on binding precedent later held violative of the Fourth Amendment[.]” And,
More on Marine nude postings-Protecting the Rights of IndiViduals Against Technological Exploitation, or PRIVATE Act
Military Times is reporting–House lawmakers Wednesday overwhelmingly passed new rules making the secret recording or unauthorized sharing of nude photos a crime under military law, in response to the Marine Corps United scandal earlier this year.
Rep. Martha McSally (R-Ariz.) this week will introduce legislation meant to fight nonconsensual sharing of “private, intimate media” in the military, following outcry over the Marine Corps’ nude-photo-sharing scandal.
The Protecting the Rights of IndiViduals Against Technological Exploitation, or PRIVATE Act, “defines when photo sharing is a crime, which is not clear in current law, and addresses questions related to freedom of speech and intent,” McSally said in a letter seeking cosponsors for the bill.
Military justice news — from Arkansas
Courtesy of the Booneville Democrat we now know that
Several bills . . . are among a number of bill filings this week at the State Capitol in preparation for the 91st General Assembly regular session.
They include:
Thought for the day
My good friend Gene Fidell recently posted this thought:
New York County Surrogate Gideon J. Tucker wrote 150 years ago: “No man’s life, liberty or property are safe while the Legislature is in session.” Here’s a thought about Congress at work in 2016.
His note is in relation to major (and minor) suggestions for change in military justice practice. In his blog post he observes:
Best practices
Friend and colleague Cully Stimson has a piece on military justice practitioner professionalism, similar to some others he has put out recently.
He is right on.
Of course this is nothing new. I came on active duty as a navy judge advocate in January 1908. The topics Cully talks were a topic then and have been a frequent topic all of the years of my active duty service through today in a civilian military law practice.
Change in the offing-again
Practitioners of military justice have been dealing with change over the last years due primarily to different approaches to sexual assault cases. Friend and colleague Cully Stimson has a published piece from his and his organization’s perspective. Take a look.
The 2015 Report of the Military Justice Review Group: Reasonable Next Steps in the Ongoing Professionalization of the Military Justice System
Prosecutorial practice
In United States v. Mercier, __ M.J. __, No. 20160318 (C.G. Ct. Crim. App. Mar. 18, 2016) the court denied a Government interlocutory appeal of a military judge’s ruling that found that a specification was improperly referred and dismissed the specification without prejudice.
This would seem to be a perfect opportunity to take up, again, two suggested improvements to military law practice.
Let’s have the President issue an Executive Order. The Attorney General of the United States issues several manuals for U. S. Attorneys. This is guidance from HQ intended to assure some measure of uniformity among the U. S. Attorney offices throughout the nation. It is time to impose something akin to the U. S. Attorney’s Manual by executive order (in particular, 9-27.000 – Principles Of Federal Prosecution)?
Military Justice Review Group-Part 1-UCMJ
Thus begins a review of the Military Justice Review Group (MJRG) report Part 1. My comments will be in no particular order.
Confinement to Bread & Water
Currently, a person can be confined for up to three days on bread and water rations, under certain circumstances. The MJRG recommends removing this as a punishment. They do not say why, other than to suggest that: