The White House

8/5/2023

Geoff Corn on the potential impact of the change to a Military "DA."

28 July 2023: Executive Order on 2023 Amendments to the Manual for Courts-Martial, United States.

Section 1. Part II, Part III, Part IV, and Part V of the Manual for Courts-Martial, United States, are amended as described in Annex 1, which is attached to and made a part of this order. The amendments in Annex 1 shall take effect on the date of this order, subject to the following[.]

Sec. 2. Part I, Part II, Part III, Part IV, Part V, and Appendix 12A of the Manual for Courts-Martial, United States, are amended as described in Annex 2, which is attached to and made a part of this order. The amendments in Annex 2 shall apply in accordance with the effective date established by section 539C of the National Defense Authorization Act for Fiscal Year 2022 (NDAA FY 2022), Public Law 117-81, subject to the following[.]

Sec. 3. Appendix 12B, Appendix 12C, and Appendix 12D are added to the Manual for Courts-Martial, United States, and Part II of the Manual is amended as described in Annex 3, which is attached to and made a part of this order. The additions and amendments in Annex 3 shall take effect on December 27, 2023, and shall apply in accordance with section 539E(f) of the NDAA FY 2022 (10 U.S.C. 853 note), subject to the following[.]

There is no Annex to the White House publication. The changes are not yet on the Federal Register site.

Here is a FACT SHEET: President Biden to Sign Executive Order Implementing Bipartisan Military Justice Reforms.

Nathan Freeburg

7/31/2023 15:27:20

Draft edits appear to be here?

https://jsc.defense.gov/Portals/99/Annex%20to%20the%20draft%20E_O_.pdf

Nathan Freeburg

8/7/2023 22:00:34

Highlights/Lowlights as I see them:

Annex 1 (procedures effective as of 28 July for not-yet-arraigned cases)

1. Actual Article 30a procedures for pre-referral review by a judge of PTC. Although some services were already doing that pursuant to Article 30a; others were refusing to due to the lack of RCM implementation.

2. Note that the defense can make an ex-parte and in-camera request to a judge for an RCM 706 proceeding pre-referral. I'd suggest that defense counsel start doing this asap. This helps resolve AC privilege issues and is long overdue.

3. Post-referral, the defense can make an ex-parte motion for a denied expert consultant (presumably so their case strategy is not revealed to the government).

4. It's now clear that PTAs can be for a specified, non-discretionary sentence.

5. A defense clarification for agg-assault offer cases.

6. If both sides waive instructions on a lesser-included, then the instruction cannot be given. Potentially something to consider in forum selection.

7. In time of war or national emergency a sentence of dismissal can be commuted to a sentence to an enlisted grade by the service secretary or designee.

8. Services can choose by regulation to reduce all enlisted who are convicted and sentenced to any confinement or hard labor to be reduced to E-1. Depending upon what the services do with this...it could essentially eliminate PTAs in many enlisted courts-martial. Let's say you're an E-8 with 20 years of service; now you're not just looking for a no-kick PTA, it can't contain confinement or hard labor either. This potentially really really sucks for enlisted. Will be curious to see what certain services elect to do here.

9. MRE 404b now requires disclosure by the TC without a request by the defense (I doubt this matters, a 404b request should be in every preliminary defense discovery request).

10. Some changes to the elements of various offenses. I haven't compared to the prior version of indecent broadcasting but it looks like some of the constitutional issues may have been resolved.

11. Army NJP is now preponderance.

Annex 2 (changes effective in the future):

1. OSTC implementation.

2. Alleged victims have the right to be heard at PTC hearings.

3. We still have a lengthy RCM 405 for 10 minute hearings.

4. "Referral authorities shall consider whether the admissible evidence will probably be sufficient to obtain and sustain a conviction."

5. Brady material should be disclosed "as soon as practicable."

6. For OSTC cases, only a judge may order a deposition, before or after referral.

7. Subpoenas for personal or confidential information of an alleged victim (barring exceptional circumstances) must include notice to the alleged victim and an opportunity to litigate. However, post-referral the defense may make a request to the judge for a subpoena (which can be ex parte and presumably could include an argument as to exceptional circumstances).

8. Judge assigns random numbers to the detailed members. Whether this has any significance is unclear (unless all of a sudden we have 100 detailed members...the Army standing panel concept is probably the one most tailored for this). I tend to think this won't have any practical effect...but we will see.

9. Victim impact statements in non-capital cases can recommend a specific sentence.

10. Extensive rules for capital cases.

11. Categories of offenses for judge alone sentencing.

Maybe some of this isn't new, it's hard to keep up.

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