MJRP? Nope.

Lawmaker Introduces Bill to Make Hazing a Standalone Offense Under Military Law.

The bill is named after Lance Corporal Harry Lew, Rep. Chu’s nephew, and Private Danny Chen, who both endured abuse from military superiors during their deployments to Afghanistan and died by suicide following their attacks. The bill would require the Joint Service Committee on Military Justice (JSC) to conduct an analysis and subsequent report to Congress on whether the Military Code of Justice should contain a standalone crime for hazing.

Compare H.R. 5060, text.

Porter is a guilty-plea mental-responsibility case. The opinion turns on three related questions: was the R.C.M. 706 inquiry sufficiently reliable for the plea, is there anything in the record that raised a substantial conflict with the plea, and did trial defense counsel have to do more after receiving the sanity-board report? NMCCA answered all three questions against the appellant and affirmed.

Porter can be read as a record-preservation case. Mental-health issues do not defeat a guilty plea merely because they exist. They defeat a plea when they create a substantial conflict with criminal responsibility, competence, voluntariness, or factual guilt. The military judge protected the plea by reopening the inquiry. Trial defense counsel protected themselves by requesting the 706 inquiry. And NMCCA affirmed because the record showed concern, investigation, and resolution—not unresolved doubt.

The opinion gives trial judges and appellate courts a straightforward rule of practical litigation: mental-health facts matter, but they do not automatically defeat a guilty plea. The defense must show more than anxiety, depression, unusual behavior, a post hoc disagreement with the examiner, or a theoretical mental-responsibility issue. The record must show a real conflict with the plea.

In United States v. Smith, CAAF granted review on whether AFCCA used the wrong standard when it referenced the older Arnold “light most favorable to the Government” language. CAAF noted that Inabinette supplies the proper test: appellate courts ask whether something in the record, as to law or fact, raises a substantial question about the guilty plea.

NMCCA did not lean on Arnold. It applied the Inabinette “substantial basis” standard directly. So, after Smith, the standard-of-review point likely strengthens Porter, not Porter’s appellate challenge. The question is not whether the record can be read favorably to the government. The question is whether the record contains a substantial conflict with the guilty plea.

Tuesday, May 12, 2026
Petitions for Grant of Review - Summary Dispositions
 
No. 26-0141/AF. U.S. v. Dietrich A. Smith. CCA 40437. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, we note that the lower court's opinion states: " '[W]hen a plea of guilty is attacked for the first time on appeal, the facts will be viewed in the light most favorable to the [G]overnment.' United States v. Arnold, 40 M.J. 744, 745 (A.F.C.M.R. 1994) (citation omitted)." However, this Court's opinion in United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008), articulates the proper standard for reviewing a military judge's decision to accept an accused's guilty plea: "[W]e apply the substantial basis test, looking at whether there is something in the record of trial, with regard to the factual basis or the law, that would raise a substantial question regarding the appellant's guilty plea." We note that the lower court both correctly articulated and applied the Inabinette standard. Therefore, even assuming arguendo that the lower court erred by obliquely referencing the Arnold language quoted above, we find no prejudice. Accordingly, it is ordered that said petition is granted on the following issue:
 
Whether the Air Force Court of Criminal Appeals abused its discretion by analyzing the providence of Appellant's plea using an erroneous "light most favorable to the Government" standard of law.

AFCCA decision.

AFCAA's decision is affirmed.

Lewis v. United States, 985 F.3d 1153 (9th Cir. 2021).

SUMMARY**
Habeas Corpus
The panel affirmed the district court's denial of a habeas corpus petition brought by Senior Airman James Lewis, United States Air Force, challenging his 2012 court-martial conviction for one count of aggravated sexual assault and two counts of wrongful sexual conduct.

In an unrelated case decided after the conviction became final, United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016), the Court of Appeals for the Armed Forces held unconstitutional a pattern jury instruction on Military Rule of Evidence ("M.R.E.") 413 under which jurors may consider evidence of any one charged sexual offense as showing the defendant's propensity to have committed any of the other charged sexual offenses.

In his federal habeas petition filed after Hills was decided, Lewis argued that the M.R.E. 413 propensity instruction given at his court-martial was in violation of the Fifth Amendment as interpreted in Hills, and that he had been denied effective assistance of counsel on direct appeal when his appellate counsel failed to challenge the constitutionality of such instruction.

The panel held that Hills—which held that the use of a charged sexual offenses to show propensity to commit other charged sexual offenses violated the presumption of innocence and right to have all findings made clearly beyond a reasonable doubt, as guaranteed by the Fifth Amendment—announced a new rule, but that the rule does not fall under either exception for non-retroactivity, as it is neither a substantive rule nor a watershed rule of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding. The panel concluded that Hills therefore does not apply retroactively in Lewis's collateral attack on his court-martial conviction.

Fisk pled (sic, and Garner disagrees on the spelling) guilty at a general court-martial to an unauthorized absence (UA) (Article 86) and two specifications of possessing child pornography (Article 134). The misconduct dated to early 2014: he possessed the images in February 2014, learned he was under investigation, and went on the run for a full decade until Washington state police apprehended him in April 2024. He was sentenced to reduction to E-1, seven years' confinement, total forfeitures, and a dishonorable discharge. Under the pretrial agreement, the convening authority suspended confinement above 42 months. Fisk raised three assignments of error, the second relating to clemency. The court rejected the first two on the merits and declined to reach the third as unripe, affirming the findings and sentence. The third issue is of interest and may encourage a CAAF grant, or they may wait until the issue is ripe. If they do decide to wait, then Sailors and Marines will be treated differently on appeal.

Franklin D. Rosenblatt and Eugene R. Fidell, The Armed Forces Need the Military Justice Review Panel. Just Security, 19 May 2026.

MIJERPA has been the closest body to act independently, inclusively, and publicly since the well-documented process that led to the UCMJ (see, e.g., Index and Legislative History: Uniform Code of Military Justice), and is significantly closer to the Federal Rules Advisory Committee process. True, the Judicial Proceedings Panel is an example, but it might be said to be of a more limited focus. We know the JSC doesn't come close. (Note, JSC work on the MCM already flows up to the President through the DoD General Counsel.) (Also, should the phoenix rise, might Congress direct that JSC recommendations must flow through MIJERPA?) 

No. 26-0154/NA. U.S. v. Ruben Cruz. CCA 202400211. 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 issues:
 
I.  Whether Appellant's plea was improvident based on a misunderstanding of the convening authority's options when acting upon Appellant's request to transfer to the Fleet Reserve.
 
II. Whether Appellant's trial defense counsel rendered ineffective assistance in advising Appellant on the request to transfer to the Fleet Reserve in connection with Appellant's plea agreement.
 
The decision of the United States Navy-Marine Corps Court of Criminal Appeals is set aside.
 
The record of trial is returned to the Judge Advocate General of the Navy for remand to that court to obtain an affidavit from trial defense counsel that responds to Appellant's allegations that his plea was improvident and that his trial defense counsel rendered ineffective assistance. A hearing is authorized under Article 66(f)(3), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866(f)(3) (2018), if the court determines it is necessary to further develop the record. The Court of Criminal Appeals shall then review the granted issues in light of the affidavit and any other relevant matters. Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2018), shall apply.

CAAF affirmed--the military judge did not abuse his discretion by admitting two segments of the victim's recorded CID interview as prior consistent statements under M.R.E. 801(d)(1)(B)(ii).

At trial.

Brown claimed self-defense to a charge with domestic violence after stabbing his wife twice with a knife. He argued that she had pointed a pistol at him during the argument. Both sides treated the pistol's orientation as the central disputed fact. K.B. testified at trial that she cleared the pistol, dropped the magazine, and placed the weapon on the bed before Brown stabbed her. An EMT testified that K.B. earlier said she had pointed the pistol at Brown's face. A paramedic, called by the defense, said much the same.

Defense counsel did two things in opening statement, (1) K.B. had a motive to fabricate because she wanted custody of the children, and (2) he told the members they would hear about all of K.B.'s post-incident statements—to the EMT, paramedic, hospital staff, and CID—and invited them to ask whether her in-court testimony stayed consistent with those earlier accounts, "and if it did change, why?"

The Government offered two short segments of K.B.'s recorded July 8 CID interview in which K.B. repeatedly told the agent that she did not point the pistol at Brown's face. The military judge admitted the statements under both subparagraphs (B)(i) and (B)(ii).

(Query. Yes, the CID statements are prior to testimony. But they are not made prior to the statements to the emergency responders, etc. Are they less reliable because there was ample time to consider what to tell CID? Once told to CID then consistency has to be kept. Do we know if that time to consider was argued on admissibility and hammered on re-cross? Of course the testimony has to be consistent with CID, the interview was under oath or at least covered by Article 107?)

The majority.

The majority resolved the case under (B)(ii) only and treated (B)(i) as moot. Applying the five-element framework from United States v. Finch, 79 M.J. 389 (C.A.A.F. 2020), the Court held that all five elements were satisfied. The first three drew little dispute. The opinion turns on element four (attack on "another ground") and element five (relevance to rehabilitate beyond mere repetition).

On element four, the majority found two separate defense attacks: a motive-to-fabricate attack tied to custody, and a distinct inconsistency attack untethered from that motive. The majority separated the two attacks almost entirely on the strength of defense counsel's invitation to the members to compare K.B.'s in-court testimony with "all of the other stories" she told the EMT, paramedic, hospital staff, and CID.

The Court relied on United States v. Tarantino, 846 F.2d 1384 (D.C. Cir. 1988), to hold that a party who invites the members to compare a witness's statements cannot then object when the opposing party offers a fuller version of those same statements.

On element five, the Court agreed that mere repetition does not suffice but concluded that the CID excerpts performed rehabilitative work because the defense attack required the members to evaluate K.B.'s credibility by considering all of her statements. The Court declined to adopt the Second Circuit's more demanding "significant rebutting force" test from United States v. Pierre, 781 F.2d 329 (2d Cir. 1986).

The Court also clarified Ayala. A prior consistent statement can satisfy both (B)(i) and (B)(ii) where the witness has been attacked on multiple grounds, one of which falls outside (B)(i). The earlier statement in Ayala—that the two subparagraphs operate as mutually exclusive—applies only where the witness has been attacked on a single ground. The majority drew support for this reading from United States v. Begay, 116 F.4th 795 (8th Cir. 2024).

Chief Judge Ohlson's Concurrence

Chief Judge Ohlson concurred in the result on harmless-error grounds, but he would have held that the military judge abused his discretion. He raised three concerns that matter for future litigation.

First, he read the record as showing that the defense tied any inconsistency argument directly to the motive-to-fabricate theory, which would push the analysis into (B)(i), not (B)(ii). He cited the Fifth Circuit's decision in United States v. Portillo, 969 F.3d 144 (5th Cir. 2020), for the proposition that an inconsistency attack offered only to support a motive theory must be analyzed under (B)(i).

Second, he warned that inconsistency standing alone provides no basis for admission under (B)(ii); the prior consistent statement must explain, clarify, contextualize, or neutralize the asserted inconsistency. He collected supporting authority from the First, Second, Sixth, Eighth, and Ninth Circuits.

Third, he concluded that K.B.'s consistent statement to CID did not rehabilitate her at all because it did nothing to explain or contextualize the inconsistent statements she made to the EMT and paramedic. It merely repeated her trial testimony. He also cited United States v. Ruiz, 86 M.J. 75 (C.A.A.F. 2025), for the proposition that a prior consistent statement may rehabilitate when it rebuts an assertion of faulty memory—giving practitioners a recent in-circuit anchor on the rehabilitative-function question.

At first blush it this might be viewed as a big win for the prosecution. Don't think of it that way. It is good for either party who has to consider rehabilitation of their witness through prior statements, the military judge when she has to decide admissibility and on what basis, and the appellate judges who have to decide if the military judge abused her discretion. Keep in mind MRE 106's rule of completeness and the special rule for statements of the accused and MRE completeness that incorporated United States v. Goldwire and  

In recognition of NIMJ's continued expansion and increasing prominence, the Executive Board has created three Chairs to be held by those who, in the estimation of NIMJ, contribute as the most significant national voices in the field of military justice. Each chair honors historic figures in the development of military law.

The William Winthrop Chair in Military Law: 

​Eugene R. Fidell
​
This chair honors William Winthrop, a treatise writer and scholar from the 1800s who was among the first to systematize military law. The Supreme Court of the United States has referred to Winthrop as “Blackstone of Military Law,” Reid v. Covert, 354 U.S. 1, 19, n. 38,  (1957). NIMJ accordingly confers this chair on the most learned and prominent living scholar of military justice in the United States: Eugene Fidell. Fidell, like Winthrop, spent decades convincing an often-reluctant legal academy (and bar) that military justice was a field worthy of serious study. Without these efforts, the field would have remained an intellectual backwater. Because of him, it is not. He has mentored a generation of law professors as well as hundreds of law students at Yale, where he regularly teaches military justice. 

The Ansell-Crowder Chair in Military Justice Reform:

Rachel VanLandingham

Military justice, like all law, is constantly in flux. From time to time, there are significant debates about its fundamental character. One of the most prominent of these debates occurred between two military lawyers after WWI: Major General Enoch H. Crowder & Brigadier General Samuel T. Ansell. Fred L. Borch, Military Justice in Turmoil: The Ansell-Crowder Controversy of 1917-1920, The Army Lawyer (March 2017). This chair honors these two men for spurring public deliberation about the future of military justice. NIMJ accordingly confers this chair on the most prominent scholarly advocate for the reform of military justice in the United States: Rachel VanLandingham. VanLandingham, like Ansell and Crowder, has been at the center of all significant debates about the future of military justice--advising Senators, Secretaries, and the public, where she frequently appears in the nation's most prominent media outlets. 

The Morgan-Larkin Chair

Vacant

This chair honors the architects of the Uniform Code of Military Justice: Edmund Morgan and Felix Larkin. Prior to the UCMJ, servicemembers' lives and liberty were subject to the archaic and draconian Articles of War (even up to WWII)--a legal regime that did not even have judges. The UCMJ created what is now known as CAAF.

The NIMJ Board welcomes nominations for this Chair from the public (please send email to [email protected]). 

I have a long list of interesting "quotes"; you may know the 'skunk in the jury box' and something about a five-day-old dead fish. (Personally, I think the dead fish analogy sets the bar too high to establish an abuse of discretion; that's an impossibility, it seems, assuming the brief was not filed in person wrapped around the fish. Or is it. I remembered and retrieved this article from a little over a year ago.) Upon reporting to Code 45, I was told about the Division seal. See Colin A. Kisor, The Need for Sentencing Reform in Military Courts-Martial, 58 Nav. L. Rev. 39 (2009), at n. 13, (citing United States v. Jones, 7 M.J. 806, 808 (1979)), for the phrase "like ducks to water" in describing the civilianization of military justice, which was incorporated into the Code 45 seal with an image of three ducks. I forget why the snakes were incorporated (it was something along the lines of issues lurk within the record like snakes in the grass). Reading Ruhrup, I'm adding "Although an expert consultant frequently morphs into an expert witness . . . like a caterpillar into a butterfly . . ."

All humour aside, there is a lesson we all need to learn or remember about the distinction between requesting defense expert assistance pre-trial and at trial, and requesting a defense expert to testify. Unlike the Government, the defense has some wickets to climb over.

ACCA's teaching moment begins on page 4.