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:
Well I see the FOIA site is up in Bergdahl per the MJ’s order.
https://www.foia.army.mil/ReadingRoom/Detail.aspx?id=103
There’s the normal minutiae for early appellate exhibits, the EDN for example.
I have commented on this before–post-CAAF habeas corpus, but a new case from the 9th is time for a reminder.
Narula v. Yakubisin (CO, NAVCONBRING Miramar), No. 15-55658 (9th Cir. 17 May 2016).
It is common for the military appellant to think about federal court once their military appeal is complete. The route to federal court is through a federal habeas corpus proceeding, in accordance with 28 U.S.C. § 2241. It is rare to get past a motion to dismiss, let alone win on the merits.
There is an interesting issue in the UK about an outspoken general officer commenting on political matters. As you read the article below you’ll see that the UK is no different than the US in response to outspoken flag and general officers.
Philip Hammond ‘tried to court-martial senior general’, new book claims
General Sir Richard Shirreff, who served as NATO’s deputy supreme allied commander for Europe until 2014, said before standing down from the post the Government was taking “one hell of a risk” by cutting the regular army.
The CAAF took the following action last Friday.
No. 16-0309/AR. U.S. v. Michael B. O’Connor. CCA 20130853. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, and in light of the conflicting affidavits between Appellant and his trial defense counsel, we conclude that the Court of Criminal Appeals erred when it failed to order a factfinding hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967), to determine the facts surrounding Appellant’s allegations that his trial defense counsel were ineffective in failing to investigate alleged unlawful command influence in the preferral process. SeeUnited States v. Ginn, 47 M.J. 236(C.A.A.F. 1997). Accordingly, it is ordered that said petition is hereby granted on the following issue:
WHETHER APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL BY HIS COUNSEL FAILING TO INVESTIGATE ALLEGED UNLAWFUL COMMAND INFLUENCE IN THE PREFERRAL PROCESS.
The members selection process is often at issue in a court-martial. One of the common concerns is the selection based purely on rank–usually the very senior. So, CAAF is about to enter the discussion again based on a grant yesterday.
No. 16-0391/MC. U.S. v. Emmanuel Q. Bartee. CCA 201500037. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:
THE SYSTEMATIC EXCLUSION OF INDIVIDUALS BY RANK FROM THE MEMBER-SELECTION PROCESS IS PROHIBITED. HERE, THE MILITARY JUDGE DISMISSED THE PANEL FOR VIOLATING ARTICLE 25, UCMJ, BUT THE CONVENING AUTHORITY RECONVENED THE EXACT SAME PANEL THE SAME DAY. IS THIS SYSTEMATIC EXCLUSION BASED ON RANK REVERSIBLE ERROR?
The CAAF has decided United States v. Rogers, __ M.J. ___ (C.A.A.F. 2016) today.
The issue under consideration was a challenge to a member–the senior member–for implied bias that was (as CAAF now says, wrongly) denied by the military judge. The issue and decisions are not so troubling; the whole question of challenges to members is quite common and should be pretty well understood.
What is most troubling however–AGAIN–is the basis for the challenge and the continuing false and misleading information given out in sexual assault training!
The Court of Appeals for the Armed Forces has been active recently in a number of grants of review. What is noteworthy has been the grant of three cases in which it was the client who raised an issue through a United States v. Grostefon pleading.
This confirms my own thought that Grostefon issues ought to be raised.
No. 16-0229/AF. U.S. v. Ellwood T. Bowen. CCA 38616. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue specified by the Court:
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.
There are two ways a military prisoner gets out: serve to their minimum release date or get parole. Either way, the person is going to be placed into a strict form of post-release conditions. For those who get to their MRD they will go into the Mandatory Supervised Release Program.
MSR (Mandatory Supervised Release) is very similar to parole. Individuals released on MSR must adhere to the conditions of release and are under the direct supervision of a parole/probation officer. Individuals released via MSR remain under supervision and must abide by all conditions of release for the full length of their sentence unless a portion of the sentence has been remitted by the Board. After successful completion of MSR, individuals are released from supervision and have fully served their sentence. An individual who violates the conditions of MSR is subject to sanctions for misbehavior that range from warnings to revocation of MSR and return to military confinement.
The individual on parole and MSR is under the direct supervision of a United States Probation Officer (USPO) until the full sentence has been served or the Army Clemency and Parole Board remits the remaining portion of his sentence. The difference between the two is an individual is eligible for parole after serving one-third or more of his/her sentence, while an individual released on MSR is released when he has served until his minimum release date and has submitted an acceptable release plan. Failure to provide an acceptable release plan could require the individual to serve his full sentence in confinement.
Court-Martial Trial Practice Blog
