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On 27 August 2020, CAAF issued its opinion in United States v. Bergdahl.

• “Thus, simply stated, it was the totality of the circumstances surrounding Appellant’s misconduct rather than any outside influences that foreordained the Army’s handling and disposition of this case. Therefore, an objective, disinterested observer would not harbor any significant doubts about the ultimate fairness of these court-martial proceedings. Accordingly, we hold that there was no appearance of unlawful command influence in this case, and we affirm the decision of the United States Army Court of Criminal Appeals.
• As a threshold matter, based squarely on the plain language of Article 22, UCMJ, 10 U.S.C. § 822 (2012), Article 37, UCMJ, and R.C.M. 104, we hold that Senator McCain was capable of committing unlawful command influence and that a sitting president of the United States is also capable of committing unlawful command influence. Slip op. at 6.

You seek out a witness for the defense and they tell you they have to check with leadership to see if that’s OK. This happens occasionally.

Most of the time they come back and say they are good to go, or they are intransigent and you have to ask the TC to have a quiet word.

Remember this,

“I didn’t want to plead guilty.” Followed with “my lawyers forced me.”

That’s a not infrequent complaint with appellant’s who plead guilty.

“In another, the defendent objected to the Navy counsel’s advice to plead “guilty.” He stated that though he admitted guilt, “he could have beaten it with a good lawyer.” Chaplain Reports on Prisoner’s Opinions of Naval Justice. 5 January 1947, at 15.

Salem News has an article about “SEALs pulled from Iraq.” The article is a lengthy one. From the article here is why there is at least one pending (possible) appellate case.

• The Navy fired three SEAL leaders in the aftermath of the alleged rape on the Iraq air base and charged Special Warfare Operator First Class Adel A. Enayat, an enlisted SEAL, with sexual assault, aggravated assault via strangulation and assault by battery for allegedly biting the victim on the face, according to his charge sheet. He faces a court-martial in November.
• A hearing in the case was held Friday at Naval Base San Diego. At the hearing, Jeremiah Sullivan, the lawyer for the SEAL, said he was concerned Enayat, who identifies as “non-white,” cannot get a fair trial because of systemic racism in the military justice system, pointing out that there are no Black judges on the Navy bench.

Scandal on Plum Island: A Commander Becomes the Accused
By Marian E. Lindberg
East End Press, 416 pages

Think of Plum Island, and what probably comes to mind are natural habitats, a lighthouse and remoteness, all of which were highlighted in a recent report on the island’s potential.

Most people probably wouldn’t think of military intrigue, courtroom drama and sexual politics.

Petition to watch.

Jackson v. Sec. Nav.

Does Title VII apply to military personnel.

Prison inmates retain a Fourth Amendment reasonableness right against abusive strip and body cavity searches enough to state a claim here. Qualified immunity is reserved for later. Henry v. Hulett, 2020 U.S. App. LEXIS 25390 (7th Cir. Aug. 11, 2020) (Easterbrook dissents that this right has to be found in the Eighth Amendment, not the Fourth):

Prof. Colin Miller brings us this note.

Similar to its federal counterpart, Idaho Rule of Evidence 803(1) provides an exception to the rule against hearsay for

A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

What happens after trial.

Here is another case of mine that found itself in federal court–United States v. Mingo. When the Feds tell you to register and follow the rules they mean it.

In January 2005, Mingo enlisted in the United States Army. See Sealed Complaint at 2, United States v. Mingo, No. 16 Cr. 597 (S.D.N.Y. Aug. 25, 2016) (the “Complaint”). The following year, he was convicted by court martial in the Military District of Washington of, inter alia, one count of rape of another member of his platoon in violation of Article 120 of the Uniform Code of Military Justice. Order of Nov. 30 at 1. He was sentenced principally to 30 months’ confinement and was discharged from military service in September 2008. See id.

NMCCA has an unpublished opinion in United States v. Allen.

“We have written often to urge convening authorities and their staff judge advocates [SJAs] to pay scrupulous attention to detail throughout the post trial process. This case compels us to reiterate that urging yet again.” [1] Unfortunately, this is not a new problem in the military justice system. Citing 35 cases with erroneous Staff Judge Advocate Recommendations [SJARs] in a 15-month period, our sister court stated in United States v. Lindsey, almost 20 years ago:

This case presents the court with yet another incident in which an SJA has failed to provide complete and accurate information to the convening authority, as required by RCM 1106. The regularity of these post-trial processing errors is alarming and occurs in many jurisdictions. Most SJAR errors are the direct result of sloppiness and a lack of attention to detail. . . . Likewise, diligent trial defense counsel should identify and correct such errors whenever possible. These errors reflect poorly on our military justice system and on those individuals who implement that system. They should not occur!