May 22nd, 2023
New Article on Fort Hood Report
May 15th, 2023
The new Article 140a requires periodic reports to Congress about the Services' case management systems. NIMJ recently obtained these reports via FOIA. More analysis to follow.
United States v. Kim
Kim is a guilty plea case with an issue as to the providence of one specification. The CAAF affirms the findings of three specifications of sexual abuse of a child and one assault and battery.
The military judge had sentenced the Appellant to a dishonorable discharge, 130 months of confinement, and reduction to grade E-1. The CA abided by the PTA to reduce the confinement to six years.
The CAAF sets aside an Article 134(2) specification that alleged:
that Appellant “did . . . commit indecent conduct, to wit: conducting an internet search for ‘rape sleep’ and ‘drugged sleep,’ and that said conduct was of a nature to bring discredit upon the armed forces.”
CAAF tells us that:
No. 23-0126/NA. U.S. v. Rill A. Thompson. CCA 202100205. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, we note that the general court-martial adjudged a sentence consisting of confinement for 21 years and a dishonorable discharge and that the convening authority approved that sentence.
However, the lower court first stated the following: "Sentence in the Entry of Judgment: reduction to E-1, confinement for 21 years, forfeiture of all pay and allowances, and a dishonorable discharge," and then later affirmed the sentence. United States v. Thompson, No. 202100205, slip op. at 1 (N-M. Ct. Crim. App. Jan. 18, 2023). Actually, the Entry of Judgment stated that "[t]he Convening Authority approved the sentence of 21 years confinement and a dishonorable discharge." Rill A. Thompson Entry of Judgment of July 16, 2021 at 2.
Accordingly, it is ordered that said petition is granted on the following specified issue:
WHETHER THE UNITED STATES NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED BY PURPORTING TO AFFIRM A "REDUCTION TO E-1" AND "FORFEITURE OF ALL PAY AND ALLOWANCES" WHERE NO SUCH PUNISHMENTS WERE ADJUDGED AT THE COURT-MARTIAL.
The decision of the lower court is affirmed as to findings and to only so much of the sentence as provides for confinement for 21 years and a dishonorable discharge.
Recently, ProPublica published an article about sexual assault investigations and prosecutions--or lack of prosecution.
Vianna Davila, Lexi Churchill and Ren Larson, ProPublica and The Texas Tribune, and Davis Winkie, Military Times, The Army Increasingly Allows Soldiers Charged With Violent Crimes to Leave the Military Rather Than Face Trial. Pro Publica, 10 April 2023.
Today, we are receiving news from Task & Purpose about the decline in prosecutions. Jeff Shogol, Pentagon reports huge drop in troops court-martialed for sexual assault over last 10 years. Task & Purpose, 27 April 2023. I was struck by this comment:
A major reason for the drop in courts-martial is that sexual assault survivors have shown they prefer other ways to adjudicate their cases, said Nate Galbreath, acting director of the Department of Defense Sexual Assault Prevention and Response Office.
One option for off-base offenses (or those with shared local and federal jurisdiction over the base) is for the local prosecutor to have the case for disposition. Or if on a base with exclusive federal jurisdiction, could not the USA prosecute?
See, e.g., Chap 10, AFI 51-201.
Fink v. Y.B. and the United States.
In the pending general court-martial of United States v. Fink, the military judge ruled that Seaman (SN) G.C. may testify that he had a sexual encounter with Petitioner a few months prior to the accused’s alleged assault of Petitioner. The prior alleged encounter has no connection to the charged sexual assault other than to contradict statements made by Petitioner. Petitioner asks this Court to issue a writ of mandamus requiring the military judge to exclude this evidence under Military Rule of Evidence (M.R.E.) 412, Manual for Courts-Martial, United States (2019 ed.). We conclude Petitioner is entitled to relief and grant the writ.
Y.B. v. United States and Fink--CGCCA.
Fink then takes a writ appeal petition to CAAF raising three issues, only one of which CAAF has decided. Two issues have been left for decision in course of ordinary review should there be a conviction.
I. Whether this Court has jurisdiction to review a writ-appeal petition filed by an accused to review the decision of a court of criminal appeals on a petition for extraordinary relief filed under Article 6b. [GRANTED]
When granting on the first issue, CAAF
asked the Government, Appellant, and the named victim for additional briefing on two questions related to Randolph v. HV, 76 M.J. 27, 30-31 (C.A.A.F. 2017), which held that this Court does not have jurisdiction to hear the appeal of an accused in the circumstances of this case. These two questions were whether the amendment of Article 67(c), UCMJ, in the National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, § 5331, 130 Stat. 2000, 2934-35 (2016) [hereinafter the 2017 NDAA], requires this Court to reconsider its holding in Randolph, and whether Article 67(a)(3), UCMJ, 10 U.S.C. § 867(a)(3) (2018), now provides this Court jurisdiction.
After working through the reasons for its decision in Randolph, the court finds jurisdiction and that Randolph has been superseded by the statutory changes for "cases in which the amended Article 67(c)(1)(B), UCMJ, applies."
United States v. Pullings
Pullings pled guilty to sexual assault of a child and sexual abuse of a child specifications and was sentenced to thirteen years of confinement, reduction to E-1, total forfeitures, and a dishonorable discharge. Based on the pretrial agreement, the convening authority approved only eight years of confinement and disapproved the total forfeitures.
The issue Pullings raised involved the conditions of his post-trial confinement. As is common at many bases, the Air Force paid a local jail to serve as the confinement facility for pending transfer to another military facility. Pullings raised violations of Article 55, UCMJ and the Eighth Amendment. His claims of cruel and unusual punishment referenced a number of distinct complaints, including contaminated drinking water, moldy food, food poisoning, sewage water leaking into his cell, broken toilets, lack of sunlight, withholding of pain medicine, medication for depression and anxiety, and failure to alleviate symptoms from Raynaud’s Syndrome. Pullings sent various complaints both to the civilian confinement facility and to his Air Force chain-of-command.
Pullings submitted declarations and the government submitted its own declarations, but AFCCA decided it did not need to order a DuBay hearing to make findings of fact because even if the documentary evidence submitted contained inconsistencies, resolving those disputes in Appellant’s favor would not result in relief to Appellant under the cruel and unusual punishment caselaw.
The case raised appellate review questions because Pullings did not raise his confinement conditions in his post-trial submissions to the convening authority, so they were not part of the record. Judge Maggs opinion declined to address whether it was appropriate to consider matters outside the record or not because the result of the case would be the same regardless. CAAF also agreed that there was no need for a DuBay hearing for further fact finding. CAAF then looked at the merits of the Eighth Amendment and Article 55 claims and determined that Pullings had not shown government officials acted with deliberate indifference.
Judge Hardy concurred. He wrote separately to address a topic that comes up frequently in CAAF’s cases over the last several years, the scope of CAAF’s ability to consider the case in the first place. Judge Hardy focused on United States v. White, 54 M.J. 469 (2001) which explicitly found CAAF had the jurisdiction to consider post-conviction Eighth Amendment claims. The White court determined Article 67 gave CAAF jurisdiction because the statutory grant of authority “with respect to the findings and sentence” encompassed more than the authority merely to affirm or set aside a sentence, but that it also included the authority to ensure the severity of the adjudged and approved sentence was not unlawfully increased by prison officials and that it was carried out in a way that did not violate Article 55 and the Eighth Amendment. A unanimous White court based its decision in part on the fact that the Feres doctrine denied servicemembers civil remedies for constitutional violations.
Judge Hardy took direct aim at White, arguing that as an Article 1 court and under Clinton v. Goldsmith, 526 U.S. 529 (1999), CAAF lacked the ability to expand its congressional grant of authority. Simply put, because Pullings’ complaints involved post-trial conditions, CAAF lacked jurisdiction to consider them. Judge Hardy left open the question whether the CCAs could consider post-trial confinement claims, but opined that they could not under Article 66(d)(1)(A). Judge Hardy considered stare decisis and reasoned that White should be overruled because it was poorly reasoned, is unworkable, that there are no reliance interests undermined by overturning White, and that overturning White would not undermine public confidence in the law. Interestingly, Judge Hardy references the Feres doctrine issue and quotes Justice Scalia opining that “Feres was wrongly decided. . . .” United States v. Johnson, 481 U.S. 681, 700-01 (1987) (Scalia, J, dissenting). But Judge Hardy acknowledges that Feres remains good law and he simply concludes even if Feres is not overruled, that does not justify a judicially created scheme that gets around Article 67’s statutory bounds.
U. S. Supreme Court
Counterman v. Colorado
On 19 April 2023 the court will hear oral argument on this issue:
Whether, to establish that a statement is a "true theat" unprotected by the First Amendment, the government must show that the speaker subjectively knew or intended the threatening nature of the statement, or whether it is enough to show that an objective "reasonable person" would regard the statement as a threat of violence.
Sexual Harassment at the Academies
Ashley Merryman, The Dangerous Cycle of Pentagon Sexual Assault and Harassment ‘Lowest Level’ Policy. LawFare, 12 April 2023.
The report is linked in the article, and this link should take you to the report also.
Military.com on Bergdahl
Judge Grants Bowe Bergdahl Partial Win in Case Seeking to Erase Conviction, Sentence
"[Judge] Walton granted Bergdahl's motion for a summary judgment on the soldier's claim that the military judge who presided over his case did not disclose that he had applied for a civilian position at the Justice Department while the court-martial was underway -- a failure that Bergdahl argues denied him a fair trial."
Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
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