In re RWThis writ petition is interesting because of what it doesn't say and for what it suggests might be something for Congress to consider. We may remember several cases involving Mil. R. Evid. 513 where something went awry in the process of retrieving the materials for an in-camera review. See, e.g., here, and here. While not explicit, it appears the military judge was being a little creative to avoid inadvertent spillage with the equivalent of a "special master" to filter the records. To do that he created an order to have what AFCCA characterizes as a "taint team" to obtain and review the subject records before they are provided to him. Unfortunately, that creativity exceeded what is allowed under the current rules. So, For the reasons set forth below, we grant the petition in part. We vacate the military judge’s 27 September 2023 written order and oral supplement to that order to release Petitioner’s “mental health diagnosis and treatment records” maintained by the 31st Operational Medical Readiness Squadron Mental Health Flight (31 OMRS/MHF) located at Aviano Air Base, Italy, to Ms. CM, a civilian medical law attorney, and subsequently to Major (Maj) AW, a military medical law attorney (both of whom were assigned to JACC), for review and identification of releasable treatment and diagnosis information, and review and redaction of “any and all matters subject to privilege under [Mil. R. Evid.] 513.” AFCCA focuses on the missteps and resolves the case on authority issue alone, and sends the case back. Petitioner asserts that, in issuing the order to produce certain of her mental health records, the military judge erred in three general respects: (1) failing to hold a hearing as required by Mil. R. Evid. 513; (2) failing to apply the process and procedures as required by R.C.M. 703(g)(3) (arguing the Petitioner’s mental health records physically maintained by the 31 OMRS/MHF were not “within the possession, custody, or control of military authorities” within the meaning of R.C.M. 701(a)(2)); and (3) issuing an order outside the scope of the military judge’s authority. On issue two, AFCCA has already opined that (unless there is some evidence that the 31 OMRS/MHF is not a military authority) such records likely are within... See, e.g., In re KS, et. al., 2023 CCA LEXIS 406 *9, citing In re HVZ. Issue one of course has legs. Having determined interpretation and application of Mil. R. Evid. 513(e)(3) was necessary—as evidenced by his order—the military judge did not address the four prerequisites for in camera review of qualifying mental health records in accordance with Mil. R. Evid. 513(e)(3)(A)–(D). Cf. In re AL, Misc. Dkt. No. 2022-12, 2022 CCA LEXIS 702, at *21 (A.F. Ct. Crim. App. 7 Dec. 2022) (order) (granting Article 6b, UCMJ, petition on Mil. R. Evid. 513 grounds where the military judge ordered production of entirety of AL’s Family Advocacy Program mental health records over AL’s claims of privilege without adhering Mil. R. Evid. 513(e) procedural safeguards)). Furthermore, even if the military judge had considered those prerequisites, Mil. R. Evid. 513(e)(3) authorizes only one person to complete in camera review: the military judge. Issue three is where Congress might want to consider a "special master" rule for disclosure of Mil. R. Evid. 513 material. For example, if an MTF has a dedicated legal advisor, could not the records be filtered by that legal advisor before surrender to the military judge? MTF legal advisors are well-informed and experienced in protecting HIPAA material, credentialing materials, quality assurance information, etc. Plus they have legal training and would be better positioned to understand issues of relevance and discovery. That way the reviewed information is contained within the MTF bubble and less likely to be accidentally exposed.
Just a thought. Here's the link to the CAAF litigation in HVZ and BM. United States v. SalinasThe resolution of this case should be easy enough. Appellant’s case was docketed almost three months before this Court’s decision in United States v. Marin, [__ M.J. ___ (N-M Ct. Crim. App. 2023)]which held that the crime of attempt requires the Government to prove an accused had the specific intent to commit the underlying offense and, therefore, an accused cannot be charged or convicted of an attempted sexual assault on the basis that he “reasonably should have known” of an underlying condition. Both parties agree that Appellant’s second assignment of error, which challenges his conviction for attempted sexual assault where he “reasonably should have known” the victim was asleep, has merit. They also agree that the constitutional error involved is not harmless beyond a reasonable doubt. And they agree that the findings and sentence should be set aside, and a rehearing authorized, in light of Marin. But both parties nevertheless insist the Court accompany them on separate, quixotic adventures. United States v. Connor The Conner case is another addressing what a victim can say in an impact statement. We know that sentencing witnesses cannot opine on a punitive discharge or a specific sentence. The newer question is whether a victim can say something similar in an impact statement. The court finds an error but gives no relief. Appellant now claims the military judge erred in allowing the victim to ask for a specific sentence in his unsworn statement. For the reasons set forth, while we agree with the appellant that the military judge erred in admitting such evidence, the appellant is not entitled to any relief because the error was harmless." In its restatement of the law the court says: Rule for Courts-Marital [R.C.M.] 1001(c)(3) states that a victim impact statement, either sworn or unsworn, "may not include a recommendation of a specific sentence." The Discussion following R.C.M. 1001(c)(5)(B) notes that "[u]pon objection by either party or sua sponte, a military judge may stop or interrupt a victim's statement that includes materials outside the scope of R.C.M. 1001(c)(3). See also United States v. Ohrt, 28 M.J. 301, 305 (C.M.A. 1989) ("The question of appropriateness of punishment is one which must be decided by the court-martial; it cannot be usurped by a witness. Thus, for the same reasons that we do not permit an opinion of guilt or innocence, or of 'truthfulness' or 'untruthfulness' of witnesses, we do not allow opinions as to appropriate sentences") (citations omitted). The Court of Military Appeals in Ohrt also criticized the use of "euphemisms" that were simply other ways to say "[g]ive the accused a punitive discharge." Id. There was no objection by either the defense or the military judge, so the court used the plain error standard of review. Interestingly, given its law restatement, is the court applying the plain error rule to the military judge's failure to sua sponte interrupt as well as to defense counsel? We know the discussion to R.C.M.s is not binding, but in 1001(c)(5)(B), it seems clear the President intended to place some onus on the military judge to intercede. Thus, there is a difference with many other objections where the onus to object is entirely on the defense.
At the end of the opinion, the court recognizes that "notwithstanding the judge's mistake in permitting the [recommendation,]" there is no prejudice. Slip op. at 5 (emphasis added). (We also might why the special victim counsel and trial counsel did not address the issue in pretrial preparations before it came before the court.)
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 osd.pentagon.ogc.mbx.dodogcresumebank@mail.mil. 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 whs.pentagon.em.mbx.mjrp@mail.mil. 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. |
Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
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