|
General Attorney, Military Justice Review Panel, GS-15
The incumbent serves as legal counsel for the Military Justice Review Panel (MJRP), which includes the Chair and Members, Deputy Director, and Director of the Military Justice Support Group (MJSG), and is a legal authority on all matters arising with the organization. The position is within the MJSG, and includes supporting the high-visibility, high-priority work of the MJRP and other advisory entities requiring such support as determined by the General Counsel/Director, DLSA and at the discretion of the Director, MJSG. The incumbent must be able to exercise significant initiative in accomplishing the position’s assigned missions. The incumbent conducts research concerning case law, statutes, regulations, policy documents, congressional documents, secondary sources, and data reports related to military and civilian criminal law and criminal investigations. This work includes comparative analyses of military, federal civilian, state, and foreign criminal justice and investigation systems in support of the MJRP. The incumbent ensures that the supported organizations comply with all applicable laws, rules, and procedures governing advisory committees and is responsible for ensuring the production of timely, high-quality written reports and correspondence. The incumbent performs detailed comparative legal analysis of military, federal, state, and other systems of justice, including comparable foreign systems. The incumbent organizes research, arranges hearings, site visits, interviews, data presentations, and briefings to support the organization and supported advisory panel. The incumbent must be an active member in good standing of the bar of the highest court of a State, the District of Columbia, or a Territory, Commonwealth, or Possession of the United States. The incumbent should be well-versed in military justice and must be fully committed to promoting and respecting equal employment opportunity and diversity in the workplace. The incumbent must have superior interpersonal skills. The incumbent reports to the Staff Director, Military Justice Support Group, and, through the Deputy General Counsel for Personnel and Health Policy, and, the Deputy General Counsel, and, the Principal Deputy General Counsel, to the General Counsel of the Department of Defense. Resumes accepted until February 15, 2024. To apply, please email resume to [email protected]. The subject line should state “Resume File: [APPLICANT’S LAST NAME, FIRST NAME].” Please also reference this position in the body of your email. Introduction The news is recently filled with amazing proclamations about changes to our military justice system. It is an Act that has “constitute[d] the most significant reforms to the Uniform Code of Military Justice since it was enacted,” and “[i]t is the most important reform to our military justice system since the creation of the Uniform Code of Military Justice in 1950.” What are these quotes talking about? They are talking about two things, the first is Senator John McCain talking about the Military Justice Act of 2016 (MJA16) in November 2016, and the second is Secretary of Defense Lloyd Austin talking about the Offices of the Special Trial Counsel (OSTC) just last month in December 2023. That’s a lot of unprecedented and monumental reform in a short period of time for a system that had seen relative stability for the preceding 60 years. The Military Justice Act of 2016 and the inception of OSTC are back-to-back reforms closer in time than the dates of the quotes suggest. MJA16 implemented extensive changes, including the expansion of victims’ rights, new court-martial authorities, and the creation of a special court-martial bench trial. However, despite its name, MJA16 became effective at the end of 2019—that is just four years ago—and now comes OSTC. In this latest rapid reform, prosecutorial authority transfers from military commanders to specialized military lawyers, with the dubious aim of enhancing fairness and impartiality in serious criminal cases within the armed forces. This pattern of significant yet rapid changes introduce an element of uncertainty regarding OSTC's longevity and stability. While supporters identify OSTC as a crucial step in the evolution of military justice, it also stands at the crossroads of an ongoing process of reform that has recently accelerated and has uncertain ends. The military justice system, which remained largely untouched for six decades, now seems to be in a state of constant flux. Though the title of this article is an ominous prediction of the death of OSTC, there are hints the demise and future of OSTC are already planned. I argue the development of OSTC was just a steppingstone to a contemplated but unstated reform, and that there is already a blueprint for how it will be accomplished. Unveiling the Blueprint: The Hidden Trajectory of Military Justice Reform To understand the future death of OSTC, let's first go on a short tangent. We must detour into the recent civilian transformation of the Army's Criminal Investigation Division (CID). Army CID, traditionally a military-staffed law enforcement entity within the U.S. Army, embarked on a significant shift towards civilian integration after the organization was heavily criticized following the murder of Vanessa Guillén. This move wasn't just about personnel changes designed to enhance the experience level of agents; it was also a strategic alignment to better resemble civilian law enforcement practices. From the leadership to working agents, military positions in CID are transitioning to better-trained civilian counterparts, in a structure that resembles civilian law enforcement. Army CID is aiming for a workforce composition of 60% civilians by 2027. Many of the complaints that led to CID’s transformation come from what is colloquially referred to as “The Fort Hood Report.” The report pointed out that the Army was using Fort Hood as a training ground for CID agents, who were often rotated out quickly, leading to a lack of continuity and experience in the detachment. This frequent turnover impeded the establishment of working relationships and continuity in investigations. The inexperience of the agents was particularly evident in the investigation of SPC Vanessa Guillén's disappearance, where rookie mistakes were made, including inadequate interviewing techniques and a failure to follow up on critical leads. There was also the issue of CID agents being called away for military duties outside of their specialties, which significantly impacted their ability to conduct thorough and effective investigations. The report highlighted that the vast majority of agents at Fort Hood CID were subject to various military duties and responsibilities, such as deployments, temporary duty (TDY) assignments, off-site training programs, protection details, ancillary duties, and attendance at field training events. These duties often took agents away from their primary role as criminal investigators, leading to disruptions in their work and a lack of continuity in investigations. These issues led to a recommendation for a restructuring of CID, with an emphasis on increasing the ratio of civilian criminal investigators to military special agents to enhance investigative experience. This restructuring is seen as a response to the systemic issues identified in the Fort Hood Report and is aimed at aligning CID more closely with civilian law enforcement practices. If you think about how to integrate experienced civilian police officers into a military criminal investigation organization, restructuring is necessary. By adopting a similar structure to civilian counterparts, and narrowing the scope of what CID investigates to crimes most civilian detectives are familiar with, you create an organization primed to recruit and retain skilled law enforcement professionals. The Eerie Resemblance Between OSTC and Army CID The new Office of the Special Trial Counsel looks a lot like an organization primed for civilian integration. It is separated from the greater military justice hierarchy and answerable to a civilian service secretary, it is focused on serious crimes, it employs a select group of highly trained personnel from the JAG Corps, it offers specialized and specific training for those specialists, and it is free from many of the military duty distractions that could cause disruptions and a lack of continuity in prosecutions. Would a civilian district attorney or prosecutor feel out-of-place transitioning to an OSTC office? The answer is probably no, and it is likely the system was designed that way. Simply apply the logic used to justify the reorganization of CID to OSTC, and OSTC begins to look like an initial step in a long-term project. Reducing military CID agents to bring in more highly specialized civilian CID agents is being done to improve the investigation of serious crimes. How does that logic not apply to highly specialized civilian prosecutors? A civilian prosecutor with better experience, closer ties to the community, and who isn’t subject to frequent moves and military requirements should do the job of prosecuting better than a military prosecutor. Look also to the offenses. The reason CID can recruit civilian law enforcement with a level of comfort is because the crimes being investigated are serious crimes common across all law enforcement practice. The same logic applies to OSTC and civilian prosecutors. The Model Penal Code has listed offenses for murder and rape, but no listed offense for disrespect to a senior commissioned officer. The former are familiar to any civilian prosecutor and under the purview of OSTC, the latter is military-specific and primarily will stay with the service’s legal offices. The similarities between CID's reform and OSTC's current structure suggest that OSTC is primed and ready to become a civilian organization. Just as civilian detectives can feel comfortable plying the same trade in the reorganized CID, civilian district attorneys and civilian prosecutors will feel comfortable prosecuting serious crimes in the reorganized OSTC. The death of OSTC is on the horizon, and the next question is whether that’s a bad thing. There is a functioning comparative military justice example to help it along. The UK's Civilian-Led Military Justice Model as a Pathway for OSTC's EvolutionTo understand the potential transformation of the Office of Special Trial Counsel (OSTC) towards a civilian-led model, it's useful to compare it with the military justice system in the United Kingdom, which already incorporates significant civilian involvement. The UK military justice system, governed by the Armed Forces Act 2006, applies to all branches of the armed forces and has integrated civilian elements more extensively than the U.S. military justice system. The Judge Advocate General is the judicial head of the Service Courts and is a civilian appointed through the independent Judicial Appointments Commission. All judges in the system are civilians, appointed from experienced barristers or solicitors, similar to Circuit Judges. These judges also sit in the Crown Court, further emphasizing the civilian aspect of the military justice system. The UK's Court Martial has global jurisdiction over service personnel and civilians subject to service discipline. It tries both civilian criminal law offenses and military disciplinary offenses, mirroring a civilian Crown Court trial. The jury, known as the board, can include commissioned officers and warrant officers or, in trials involving civilian defendants, up to six civilian members. Minor disciplinary and criminal matters within the UK military are dealt with summarily by the commanding officer of the accused, but an accused person has the right to elect for trial in the Court Martial. Appeals from the Court Martial go to the Court Martial Appeal Court, which is essentially the civilian Court of Appeal when dealing with service cases. This system showcases how a military justice system can function effectively with significant civilian involvement and independent judicial oversight. The UK model's blend of military and civilian elements, particularly in the administration of justice, offers a potential blueprint for what a civilian-led OSTC might resemble. The transition of the Army CID to a primarily civilian organization within the U.S. military indicates a move towards models that resemble civilian law enforcement and legal practices. Given this precedent, it’s not far-fetched to speculate that OSTC could similarly evolve into a civilian-led organization, taking cues from the UK model. Such a transformation would continue the trend of aligning military justice practices more closely with their civilian counterparts. The So What: Is There a ‘There’ There? As we consider the future of OSTC, the real issue at stake is not just the structural transformation of the office, but the transparency and inclusivity of the reform process. It is unarguable that the recent pattern of military justice reforms has come as the result of pressure. The changes made in response to this pressure resemble appeasement more than they resemble a coherent plan. For example, can we now call the reorganization of military justice offices after MJA16 a success? It appears all that reform is superseded or erased after four short years. The shift towards a civilian-led OSTC, while operationally plausible, highlights a concerning lack of open dialogue about potential transformation. Stakeholders, ranging from Servicemembers to legal experts, appear to have limited input into a decision that fundamentally affects the military justice system. Congress demands change, a select group of leaders reacts to the demands, and we are delivered a product. The absence of a strategic plan or a clear roadmap for potential transformations only adds to the uncertainty surrounding OSTC's future. What will Congress demand next? If OSTC is indeed evolving toward civilian leadership, the details of this transition become paramount. What will the new structure entail? Who will be involved in shaping it? How will it ensure that the principles of military justice are upheld while integrating civilian expertise? These are not just logistical questions but ones that touch on the very ethos of military justice. Moreover, the ongoing push to expand OSTC's purview over more crimes emphasizes the urgency of addressing these issues. The military justice system stands at a crossroads, and the decisions made in the near future will determine its direction for years to come. The "death" of OSTC, as it currently exists, might not signify the end of military justice, but rather the beginning of a new chapter — one that, if managed with foresight and inclusivity, could lead to a system that is both effective and just. In this critical period of transformation, what is needed is not just structural change but a commitment to the foundational values of military justice. This involves engaging in open conversations, developing inclusive plans, and balancing military traditions with the insights of civilian legal practices. Rather than reacting to pressure, this seems like the perfect opportunity to discuss what all potential futures could look like. The evolution of OSTC represents more than just an organizational shift; it is a step towards shaping the future of military justice, respecting its past while embracing necessary reforms. Trent KubasiakLivingston v. CommandantPetitioner, a military prisoner, filed through counsel a petition for habeas corpus under 28 U.S.C. § 2241, in which he challenges certain convictions and his sentence imposed by a court martial. For the reasons set forth below, the Court denies the first two claims asserted in the petition. By consent of the parties, proceedings with respect to the petition's third claim, by which petitioner asserts that a unanimous verdict was required, is hereby stayed. In 2019, petitioner pleaded guilty to certain offenses and was convicted of other offenses — including rape and sexual assault — in a court martial after a trial before a panel of officers. On direct appeal, the United States Army Court of Criminal Appeals (ACCA) set aside one conviction, but it affirmed petitioner's other convictions, of which rulings the United States Court of Appeals for the Armed Forces (CAAF) denied review. See United States v. Livingston, 2022 WL 705828 (A.C.C.A. Mar. 8, 2022), rev. denied, 82 M.J. 440 (C.A.A.F. July 25, 2022).
That denial precluded direct review to the U.S. Supreme Court. The Military Justice Review Panel ("MJRP" or "the Panel"), will hold an open meeting on Tuesday, January 16, 2024, from 9:45 a.m. to 2:00 p.m. and January 17, 2024, from 10:15 a.m. to 2:45 p.m. General Gordon R. Sullivan Conference & Event Center, 2425 Wilson Boulevard, 4th Floor Arlington, Virginia 22202. Zoom https://www.zoomgov.com/j/1615350618?pwd=NFowUHFKSVQvOUprZUFaOVd6RmxJZz09 Meeting ID: 161 535 0618 Passcode: 654321 The MJRP welcomes written input from the public on these topics or other issues under its consideration. Written comments must be received by the MJRP at least five (5) business days prior to the meeting date. Written comments should be submitted via e-mail to the MJRP at [email protected]. Please note that all written comments will be treated as public documents and will be made available for public inspection. Harvey--case to watchOrder Granting Petition for Review: No. 23-0239/NA. U.S. v. Harvey. DID THE LOWER COURT ERRONEOUSLY INTERPRET AND APPLY THE AMENDED FACTUAL SUFFICIENCY STANDARD UNDER ARTICLE 66(d)(1)(b), UCMJ? NMCCA published decision. Regarding factual sufficiency, this is the Court’s first case to address the application of the recently amended Article 66, UCMJ, standard of review. Section 542(e) of the FY 2021 National Defense Authorization Act made the new standard applicable to offenses that occur after 1 Jan 2021. Smith v. Arizona watchCourtesy of Prof. Berman's excellent blog.
I have not followed too closely the SCOTUS briefing in Smith v. Arizona, a case which concerns application of the Confrontation Clause of the Sixth Amendment when prosecutors seek to present at trial a report prepared by a different crime lab analyst than the one able to testify. But a quick review of some of the press reports of today's oral argument suggest that the drug defendant seems likely to prevail in this case and that maybe a jurisprudentially significant ruling might be afoot. From Law.com, "Justices Seem Skeptical of ‘Substitute Expert’ Used in Arizona Criminal Trial" From Law360, "Justices Toy With New Testimony Rule In Ariz. Expert Dispute" From SCOTUSblog, "Court appears to favor Arizona man’s confrontation clause claim" The full oral argument transcript can be accessed here. No. 24-0050/AR. Rene D. Alfaro v. Judges of the CCA. CCA 20220282. Petitioner has filed a petition for extraordinary relief in the nature of a writ of mandamus and a writ of prohibition. He asks this Court to issue a writ of mandamus directing the United States Army Court of Criminal Appeals to permit military appellate defense counsel to transmit sealed materials in the record of trial – with the exception of Item Y – to his civilian appellate defense counsel, who now lives in Israel. He also asks this Court to issue a writ of prohibition ordering the same court not to enforce Army Court of Criminal Appeals Rule 6.9 in any matter before that court.
This Court previously issued a writ of mandamus, except for Item Y, providing for access to the sealed materials. Alfaro v. Judges of United States Army Court of Criminal Appeals, No. 23-0258/AR (C.A.A.F. Oct. 24, 2023)(sum. disp.). Next, Petitioner moved the lower court for an order to copy and transmit the sealed items to his civilian counsel. CCA Motion for Leave to Transmit Sealed Materials of 22 Nov 2023. The lower court summarily denied the motion. Petitioner subsequently submitted his most recent writ petition to this Court seeking enforcement of the writ of mandamus. This Court responded by issuing an order to the government to answer the petition and to show cause why a military appellate defense counsel has not been detailed to represent Petitioner. Alfaro v. Judges of United States Army Court of Criminal Appeals, No. 24-0050/AR (C.A.A.F. Dec. 18, 2023)(order). In response to that order, Respondent has filed an answer. On consideration of all pleadings of record, we note that military appellate defense counsel has been detailed to represent Petitioner before the lower court. We further note that technological means exist whereby the sealed materials may be securely transmitted or shared virtually with civilian appellate defense counsel. Accordingly, it is ordered that the petition for a writ of mandamus is granted. Without further delay, the lower court shall permit and facilitate the military counsel to securely transmit or virtually share the sealed materials – except for Item Y – with civilian counsel. The petition for a writ of prohibition as to A.C.C.A. R. 6.9 is denied without prejudice to Petitioner's right to raise the matters asserted during the course of normal appellate review Wednesday, January 3, 2024 Petition for Reconsideration Granted No. 22-0249/CG. U.S. v. Fernando M. Brown. CCA 001-69-21. On consideration of Appellant's petition for reconsideration, it is ordered upon consideration of Appellant's petition for reconsideration of this Court's opinion issued on October 23, 2023, United States v. Brown, __ M.J. __, (C.A.A.F. Oct. 23, 2023), that the petition for reconsideration is granted in part and denied in part, that the Court's judgment is vacated, and that no additional filings are authorized. Further action on the case shall be held in abeyance pending a new decision issued by the Court. Brown is the one published opinion in this new term and is here. The request for reconsideration is here. The amended decision is here. Tuesday, September 26, 2023
Orders Granting Petition for Review No. 23-0204/MC. U.S. v. Thomas H. Tapp. CCA 202100299. 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 granted on the following issue: WAS APPELLANT DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO AN IMPARTIAL JUDGE? Appellant's redacted brief NMCCA Opinion, __ M.J. ___ (N-M. Ct. Crim. App. 2023). |
Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
Co-editors:
Phil Cave Brenner Fissell Links
SCOTUS CAAF -Daily Journal -2024 Ops ACCA AFCCA CGCCA NMCCA JRAP JRTP UCMJ Amendments to UCMJ Since 1950 (2024 ed.) Amendments to RCM Since 1984 (2024 ed.) Amendments to MRE Since 1984 (2024 ed.) MCM 2024 MCM 2023 MCM 2019 MCM 2016 MCM 2012 MCM 1995 UMCJ History Global Reform Army Lawyer JAG Reporter Army Crim. L. Deskbook J. App. Prac. & Pro. CAAFlog 1.0 CAAFlog 2.0 Archives
August 2024
Categories
All
|
RSS Feed