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Military appellate lawyers know the mantra:

 This Court has an independent obligation to review each case de novo to ensure the factual and legal sufficiency of the findings. Article 66(c), UCMJ, 10 U.S.C. § 866 (2012); United States v. Turner, 25 M.J. 324 (C.M.A. 1987). In doing so, this Court is empowered to substitute its judgment for that of the trial court. Id. When deciding legal insufficiency, the test is “whether, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt.” United States v. Humphreys, 57 M.J. 83, 94 (C.A.A.F. 2004). A review of legal sufficiency is limited to the evidence introduced at trial. United States v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993). As for factual insufficiency, “the test is whether, after weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses,” this Court is unconvinced of the accused’s guilt beyond a reasonable doubt. Turner, 25 M.J. at 325; see also McMurrin, 72 M.J. at 706.

That’s the standard of review when the court of criminal appeals reviews a case.

In today’s military I have to wonder what people may be thinking.  Some time ago the Army had a prostitution scandal.  Now apparently the Navy.

Prostitution is illegal and various acts involving prostitution are illegal under the UCMJ.

The Stars & Stripes has this report today.

The Army JAG Corps has been rocked with some significant sexual assault allegations.  One of them involved Major Erik Burris, who until last year was the Chief of Justice (senior prosecutor) at Fort Bragg, NC.  He has now been convicted himself of various sexual assault allegations, and has been sentenced to serve 20 years confinement as part of his punishment.

The charges:  two counts of rape, four counts of assault and one count each of forcible sodomy and disobeying an order from a superior commissioned officer.  Burris was cleared of four counts of assault and two counts each of sexual assault, forcible sodomy and communicating a threat.

I wonder if the members of his court-martial were aware of his comments about sexual assault prosecutions, which arose from in court testimony in two unrelated cases.

The FBI reports that allegation of  rapes (revised definition) declined 10.1 percent, in the first half of 2014.

No. 14-0660/AR. U.S. v. Michael C. Budka. CCA 20120435.  On further consideration of the granted issues (74 M.J. __ (C.A.A.F. Oct. 23, 2014)), and the briefs of the parties, we first conclude that the United States Army Court of Criminal Appeals did not abuse its discretion and did not violate the principle of party presentation, as outlined in Greenlaw v. United States, 554 U.S. 237, 243-44 (2008), when it summarily affirmed the finding of guilty to the offense of aggravated assault after the Government conceded that the factual predicate for that offense had not been met.  Under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866(c) (2012), the Court of Criminal Appeals may affirm only such findings of guilty as it finds correct in law and fact, and “[i]n considering the record, it may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses.”  These factfinding powers are “unparalleled among civilian appellate tribunals,” and the decision in Greenlaw did not take those powers into consideration. United States v. Baker, 28 M.J. 121, 122 (C.M.A. 1989). Neither the Court of Criminal Appeals, nor this Court, is bound by government concessions. See United States v. Emmons, 31 M.J. 108, 110 (C.M.A. 1990); United States v. Hand, 11 M.J. 321, 321 (C.M.A. 1981); United States v. Wille, 9C.M.A. 623, 627, 26 C.M.R. 403, 407 (1958); United States v. McNamara, 7 C.M.A. 575, 578, 23 C.M.R. 39, 42 (1957); United States v. Patrick, 2 C.M.A. 189, 191, 7 C.M.R. 65, 67 (1953).

Sgt. Maj. of the Army Ray Chandler announced this week that senior enlisted personnel would be rated on their ability to police online social media activity, in what many are nicknaming the “Facebook bullet” on the non-commissioned officer report (NCOER).

So reports Duffelblog.  I’ve always been of the view that there is a little or a lot of truth underlying humor.  The truth here is that the military has a problem with social media postings.  And so the joke is that part of the media management is to be critical of those who use social media – at times making it criminal, even to the extent of holding a member accountable for what their spouse or family member says online.  In my view this may border very closely on affecting a persons constitutional right to speech.  I’m well aware that there are limitations on a military members right to speak.  So let’s hope we don’t get another report bullet to micromanage.  Where is that line.  But on to something perhaps more relevant.

The act of laughing at a joke is the result of a two-stage process in the brain, first detecting an incongruity before then resolving it with an expression of mirth. The brain actions involved in understanding humor differ between young boys and girls. These are the conclusions reached by a US-based scientist supported by the Swiss National Science Foundation.

The Marine Corps Times reports the court-martial conviction of a female guard at Miramar Naval Consolidated Brig, CA.

Kohlman’s misconduct came to light when the prisoner, Shane Bardes, came forward last year with a detailed statement alleging she and other guards had taken advantage of his status as a prisoner to engage in various acts of sexual misconduct with him. His allegations — along with claims that his pleas for help were ignored by those in charge — were the subject of a November 2013 Marine Corps Times cover story.

One of the unnoticed issues surrounding military sexual assaults, actually sexually assaults in general is the likely frequency of female on male sexual assault.  In the case of the Brig “power” might be the motivating factor.  Interestingly this issue of abuse of power and rank and status is raised quite frequently with drill instructors, recruiters, and leaders.  The issue gets very little attention when it involves a female accused.  A cynic might argue that’s because the current attention is focussed on sexual assault as a gender crime rather than on the crime; who commits the offense – men – is the meme.

Please see the NIMJ announcement of the Barry and Jenkins writing awards at this link.

Kevin J. Barry Award for Excellence in Military Legal Studies.

This award recognizes an outstanding article published in an academic or professional journal, and honors the memory of an outstanding scholar and peerless advocate of reform: Kevin J. Barry, a founder and longtime director of NIMJ.