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.
Petitioner, 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.
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@example.com. Please note that all written comments will be treated as public documents and will be made available for public inspection.
Harvey--case to watch
Order 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 watch
Courtesy 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).
United States v. Gammage (Air Force). The "counter" for post-trial delay in docketing a case with AFCCA stops when first docketed. Remands to complete or correct the record do not count when considering relief and prejudice for post-trial delay in forwarding a record of trial. The court said,
While we recognize that records of trial are remanded on occasion due to omissions or other defects, we decline to create a new requirement for cases that are docketed, remanded, and later re-docketed with this court. We find the original standards announced in Moreno, and its progeny, adequately protect “an appellant’s due process right to timely post-trial and appellate review.” Livak, 80 M.J. at 633.
Most of the AF remands are to correct the administrative requirements of completing actions (incorrect EoJs, for example) others, but fewer are remanded to complete the record because of missing items. See, e.g., United States v. Goodwater, ACM 40304, 2023 CCA LEXIS 231 (A.F. Ct. Crim. App. May 31, 2023) (remand for missing documents (sentenced Apr. 22)); United States v. King, ACM 39927, 2023 CCA LEXIS 383 (A.F. Ct. Crim. App. Sept. 11, 2023) (remand because CA failed to approve sentence); United States v. Lake, ACM 40168, 2023 CCA LEXIS 423 (A.F. Ct. Crim. App. Oct. 5, 2023) (13 exhibits unviewable by Judge Annexstad and parties); United States v. Lampkins, ACM 40135, 2023 CCA LEXIS 465 (A.F. Ct. Crim. App. Nov. 2, 2023) (MJ ruling on suppression motion missing/sentence adjudged Nov. 2020); United States v. McCoy, ACM 40119, 2023 CCA LEXIS 476 (A.F. Ct. Crim. App. Nov. 9, 2023), in which Judge Ramírez wrote (with Annexstad and Gruen on the panel).
This case is before us a second time as we earlier addressed issue (8). On 31 October 2022, this court returned the record of trial to the military judge pursuant to Rule for Courts-Martial (R.C.M.) 1112(d) as the disc containing the audio recording from Appellant's trial was missing. The issue has since been resolved. The case was re-docketed with this court with a corrected record.
McCoy was sentenced in Apr. 2021, to two years confinement. Assuming only minimum good time credit, his MRD would have been Dec. 2022, and his FTD would have been Apr. this year.
By not including the remand period, does that encourage or condone sloppy work in situations where it has already taken a long time to deliver the record? Perception suggests the AF has significantly more correction remands than the other services. It seems that the field and others are basically putting the CCA (and appellate counsel) in the role of checking their work, thus increasing the workload of the appellate judges, CCA court staff, and appellate counsel. The current AFI 52-203 seems to have what's needed for a checklist.
Gamage was sentenced in May 2022.
On 5 May 2023, the Appellant submitted his assignment of error brief in which he raised one issue: the record of the trial was incomplete in that it was missing all eight attachments to the stipulation of fact, which was admitted as a prosecution exhibit during his court-martial. On 5 June 2023, we remanded this case to the Chief Trial Judge, Air Force Trial Judiciary, to address the missing attachments to the Appellant’s stipulation of fact.
The record was redocketed in June 2023. However, in August,
Appellant submitted another assignment of error brief and again alleged that the record of trial was incomplete, in that it still was missing four of ten photographs that were part of Attachment 6 to the stipulation of fact. Appellant also raised one additional issue: whether the Government’s submission of an incomplete record of trial to this court subjected Appellant to unreasonable post-trial delay.
Why is the court and its staff having to double check work from the field on a regular basis?
For Gammage the delay didn't matter because there were no errors that prejudiced the Appellant requiring relief.
When people ask why appeals take time, Gammage is representative of one reason.
The appellate defense shop is tasked to have every record read to determine if there are meritorous issues or Grostefon issues, or whether it can be submitted on its merits. Here, while the appellate defense counsel was dealing with the record, she was not able to work on another, perhaps more deserving case. So too, at least Judge Annexstad had to read the full record. True, he or one of the other panel members had to read it anyway. But, in dealing with the post-trial errors he was distracted from reviewing another case or writing an opinion in another case. If your answer is "so what, it likely only took a few minutes for him and the staff to get the order written, signed, and sent,"--I'm not sure you should say that to his face.
Thus the long way round to recommending the court does initially count any remand time for post-trial processing purposes. The court could then still consider whether the extra time prejudiced the appellant. Or how about this. Whenever there is a "correction" remand, the court will automatically credit the appellant with 30 days off the confinement as a remedial and exemplary measure?
Or perhaps, ignore the issue. Compare with Gammage,
"Although not raised by Appellant, we note that the record of trial does not contain a copy of the recording of the preliminary hearing. R.C.M. 405(j)(5) requires the Government to ensure the preliminary hearing is recorded and R.C.M. 405(j)(2)(B) requires this recording be included as part of the preliminary hearing report. Additionally, if not offered as an exhibit, R.C.M. 1112(f)(1)(A) requires the preliminary hearing report be attached as part of the record for appellate review. Appellant has not claimed prejudice from this omission, and we find none. Moreover, despite this omission we were able to complete our Article 66(d), UCMJ, 10 U.S.C. § 866(d), review."
United States v. Reynolds, No. ACM 40308, 2023 CCA LEXIS 407, at *2 n.4 (A.F. Ct. Crim. App. Sep. 28, 2023). See also,
As noted above, the EOJ contains several errors that do not properly account for the disposition of all charges and specifications on the various charge sheets. Although we find no prejudice, Appellant is entitled to have court-martial records that correctly reflect the content of his proceeding. In accordance with R.C.M. 1111(c)(2), we modify the EOJ and direct that it be included in the record.
United States v. Truss, No. 202200198, 2023 CCA LELXIS __ (N-M. Ct. Crim. App. Dec. 28, 2023).
Or perhaps, remove the CA from post-trial, have the MJ issue a Judgment, require an accused to submit any brief in accordance with Article 38(c) within 30 days of being sentenced, and permit the MJ to hold a hearing on the 38(c) brief (this would allow the MJ to correct errors and address significant issues, and encourages compliance with defense counsel's obligations under Article 38(c)(1)) (As an aside, Article 38 is still good law, and nothing prevents the DC submitting a memorandum of errors). The MJ could also be tasked with the authorities under Article 60a (this would encourage uniformity in post-trial because the judiciary would have a better sense of results across the service, while at the same time allowing the MJ to consider special circumstances of individual. Provisions of Article 60b(a) could be rolled into the MJ's post-trial role. Article 60b(b) is already available to the military judge because of caselaw encouraging MJs to resolve issues earlier rather than later at a quasi-Dubay hearing. And see R.C.M. 1104(a). I'd be inclined to move R.C.M. 1108 to the judiciary.
See, e.g., Fed. R. Crim. Pro. 33 (new trial), 35 (correcting errors and reduction in sentence for "substantial assistance"), 36 (correcting clerical errors).
How Central Law Professors Believe Military Law Is (and Should Be) to Law School Curriculum -- See Red Arrow
CAAF has given a Boxing Day gift as follows.
No. 24-0011/MC. U.S. v. Sean M. Swisher. CCA 202100311. 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:
DID THE LOWER COURT ERR BY APPLYING THE WRONG LEGAL STANDARD TO ITS SENTENCE APPROPRIATENESS ANALYSIS?
Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
Amendments to UCMJ Since 1950 (2024 ed.)
Amendments to RCM Since 1984 (2024 ed.)
Amendments to MRE Since 1984 (2024 ed.)
Army Crim. L. Deskbook
J. App. Prac. & Pro.