Currently, the court-martial convening authority is required to “detail as members thereof such members of the armed forces as, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament.” Article 25(e)(2) (emphasis added). As part of the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023, Congress amended Article 25(e), UCMJ, regarding the detailing of court members, by adding a new paragraph (4), requiring a convening authority for courts-martial to “detail as members thereof members of the armed forces under such regulations as the President may prescribe for the randomized selection of qualified personnel, to the maximum extent practicable.” Pub. L. No. 117-263, § 543(a) (2022) (emphasis added). The President is required to prescribe implementing regulations by 23 December 2024, when the amendment takes effect, for courts-martial convened on after that date. § 543(b), (c). The new provision was not part of the original House bill; it was added, apparently without much deliberation, by Senate amendment No. 5499. See Joint Explanatory Statement to Accompany the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023, at 83. https://www.armed-services.senate.gov/imo/media/doc/fy23_ndaa_ joint_explanatory_statement.pdf. Regardless of your sentiments on the merits of the issue, § 543 is an abysmal piece of legislation. Typically, when Congress wishes an amendment to supersede an earlier statute, or it intends the earlier statute to remain in effect for some, but not all, purposes, it says so in the amendment. In fact, it “can strongly be presumed that Congress will specifically address language on the statute books that it wishes to change.” United States v. Fausto, 484 U.S. 439, 453 (1988). “[R]epeals by implication are not favored and will not be presumed unless the legislature’s intention to repeal is clear and manifest. Statutory repeal will not be inferred unless the later statute expressly contradicts the original act or such a construction is absolutely necessary to give the later statute’s words any meaning at all.” Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 646 (2007) (cleaned up). On one hand, congressional intent is not clear and manifest. If Congress intended to repeal the first sentence of Article 25(e)(2), why not directly amend that provision to reflect a randomized court member selection process, rather than add a contrary provision in the same subsection of the statute? On the other hand, the amendment expressly contradicts the original act. Where the statute gave the convening authority almost unfettered discretion in selecting members, after applying statutory criteria, the amendment requires the President to establish procedures for the random selection of members but severs the convening authority from the actual selection process. Article 25(e)(4) meets both criteria for inferring statutory repeal of the first sentence of Article 25(e)(2). It expressly contradicts the original act and repeal of the latter is absolutely necessary to give any meaning to the words of the amendment. In the random selection amendment, Congress placed only one restriction on the President’s plan: the court members must be “qualified” members of the armed forces. The only qualifications under the current Article 25 require the individual selected for court-martial duty to be an active-duty member of the armed forces (Article 25(a), (b), (c)) and, when it can be avoided, not be inferior in rank or grade to the accused (Article 25(e)(1)). In drafting a plan, the President will have to deal with other issues. Under Article 25(c)(2)(B), an enlisted accused has the right to select trial before a panel consisting of only officers or one in which at least one-third of the members are enlisted. With the vastly more numerous enlisted personnel than officers, random selection of members will inevitably result in some court panels consisting of enlisted members only. Will the President somehow restrict the random selection process so that officer representation on the panel is ensured? Congress seems to have foreclosed such restrictions in its mandate that the President’s plan randomize the selection process to “the maximum extent practicable.” The term “practicable” means “capable of being accomplished; feasible; possible.” Bryan A. Garner, A Dictionary of Modern Legal Usage 678 (2d ed. 1995). Certainly, a court-martial with an all-enlisted panel is feasible and possible. Regardless of how the President resolves the officer/enlisted and other questions that may arise, the congressional requirement that the selection process be randomized to the maximum extent practicable raises its own question: Who decides whether the President’s plan establishes randomization to the maximum extent practicable? The term “practicable” is used elsewhere in the UCMJ but, normally, it is associated with a grant of authority to the President to determine what is practicable. See, e.g., Article 36(a) (permitting the President to prescribe court-martial procedures “which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts” (emphasis added)). Although some may quibble, the President has executed this duty faithfully. The rules of evidence and procedure in courts-martial now pretty much track those in federal district courts, except where otherwise contrary to provisions of the UCMJ. And the courts are not flooded with litigation on whether it would be practicable to adopt more of the federal rules. Ultimately, of course, Congress will be the final arbiter. But Congress acts slowly, leaving the question ripe for judicial intervention. Good luck to the Joint Services Committee that is responsible for drafting the presidential regulations to implement the new Article 25(e)(4). Jim YoungThis recent civil penalty case from the Supreme Court is worth a read. In Bittner v. United States (https://www.supremecourt.gov/opinions/22pdf/21-1195_h3ci.pdf), the Court considers the interpretation of the Bank Secrecy Act. Justice Gorsuch's opinion does a nice job discussing statutory interpretation and Skidmore deference. Most significantly for military criminal practitioners, Justice Gorsuch discusses application of the Rule of Lenity. There is a lot of good language for that appellate attorney invoking the Rule of Lenity. Jason GroverNo. 23-0004/AF. U.S. v. Humphrey Daniels III. CCA 39407. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:
WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION IN ALLOWING THE VICTIM TO DELIVER HER UNSWORN VICTIM STATEMENT IN A QUESTION-AND-ANSWER FORMAT. No briefs will be filed under Rule 25. No. 23-0006/AR. U.S. v. Gene N. Williams. CCA 20130582. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue: WHETHER THE ARMY COURT ABUSED ITS DISCRETION IN REASSESSING APPELLANT'S SENTENCE. Briefs will be filed under Rule 25. Tuesday, February 28, 2023 Miscellaneous Docket - Summary Disposition No. 23-0073/AF. A.L., Appellant v. United States, Appellee, & Theodore J. Slusher, Captain, United States Air Force, Real Party in Interest CCA 2022-12. On consideration of the writ-appeal petition for review of the decision of the United States Air Force Court of Criminal Appeals on application for extraordinary relief in the nature of a writ of mandamus, it is ordered that the petition is hereby denied in part and granted in part; that Appellant's request for the trial counsel to destroy the medical records that he obtained from her military treatment facility is denied; and that Appellant's request for the military judge to conduct an in camera review of all her medical and Family Advocacy Program records in order to determine their relevancy and to adjudicate any claims of privilege is granted. In issuing this order, the Court expresses no opinion on the legality of the means by which the Government obtained Petitioner's records. Friday, February 24, 2023
Order Granting Petition for Review No. 23-0061/CG. James D. Fink v. Y.B. & U.S. CCA 001-23. On consideration of the writ-appeal petition for review of the decision of the United States Coast Guard Court of Criminal Appeals on application for extraordinary relief, it is ordered that said petition is hereby granted on the following issue: 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, UCMJ. Within 10 days, each Appellee shall file a brief addressing the arguments in Appellant's writ-appeal petition that Article 67(a)(3), UCMJ, provides this Court jurisdiction, and that the amendment of Article 67(c), UCMJ, in the National Defense Authorization Act of 2017 requires this Court to reconsider its holding in Randolph v. HV, 76 M.J. 27 (C.A.A.F. 2017). Appellant may file an answer no later than 5 days after the filing of the Appellees' briefs. The Court reserves judgment on whether it will grant review of the other assigned issues in the writ-appeal petition. Last Thursday, CAAF released its opinion in United States v. King. King, a lieutenant colonel in the Air Force, was charged with sexual assault of his seventeen-year-old biological daughter under Article 120 and with a specification under Article 134 of committing an act of sexual penetration on his blood relative under a New Jersey statute. He was sentenced to three years confinement and a dismissal. The Air Force Court of Criminal Appeals dismissed the Article 134 offense, affirmed the Article 120 offense, and reassessed the sentence and affirmed the three years confinement and a dismissal. The case presents useful discussion of forfeiture versus waiver and application of the plain-error standard. The context was member selection. In this case, King’s court-martial was assembled in April 2018. At the time, one of the members selected was Lt Col PBL. During voir dire, Lt Col PBL disclosed he had been the subject of a rape allegation when he was fifteen years old. He explained the charges were “unfounded and later dismissed.” Lt Col PBL opined that his experience showed the justice system works. Neither side challenged Lt Col PBL for cause. But then there was a continuance. The opinion doesn’t spell out all the details, but the MJ granted a defense continuance after assembly of the members based on a scheduling conflict with the defense expert consultant. I found this a fascinating detail as the Navy-Marine Corps Court of Criminal Appeals overturned a death sentence in United States v. Walker for failure to grant a continuance for a defense expert. 66 M.J. 721 (N-M Ct. Crim. App. 2008). In this case, the court-martial was delayed four months, until July 2018. When the trial resumed, there was a new military judge, new senior trial counsel, and seven newly detailed panel members. And no Lt Col PBL. An amendment to the convening order was placed into the record showing that Lt Col PBL and two other members had been “relieved” by the convening authority. To further confuse mattes, on the record, the senior trial counsel asserted that the missing members had been excused at an earlier session. But there had been no excusing-earlier-session. Critically, the defense did not object or challenge any aspect of the composition of the court-martial until raising the issue for the first time before the CCA. The CCA found that King had forfeited the issue of panel composition and applied a plain error analysis. The CCA found plain error in the government failing to show good cause for Lt Col PBL’s excusal on the record but found that there was no material prejudice to a substantial right. As part of its analysis, the CCA had allowed the government to attach a declaration from the staff judge advocate which established that Lt Col PBL had been selected for the Air War College and had transferred to another base before Appellant’s court-martial had resumed. (Note a significant discussion of United States v. Jessie and supplementing the record--here by the government.) CAAF first looked at the standards of review in a very clear parsing of the different standards for different issues including whether an issue was waived (de novo); whether the lower court properly attached documents (abuse of discretion); jurisdiction (de novo); and for prejudice (de novo). Regarding waiver, Chief Judge Ohlson, writing for the majority, analyzed the 2016 version of R.C.M. 905(e) and found that Appellant had not waived the issue of panel composition, but simply forfeited it. The distinction is key because if he had waived it, the Court would have considered there to be no error to review but if it was forfeited the Court would apply a plain error analysis. The Court went on to agree with the CCA’s decision to allow the government to attach documents because doing so was necessary to resolve issues raised by the record. Part of the Court’s reasoning was based on the concern that a different decision may encourage “sandbagging” of issues by trial defense counsel in the hopes of a windfall on appeal. After finding the CCA did not abuse its discretion by attaching the documents, the Court moved to focus on the key issue, whether the panel was properly constituted. The Court noted that prior to assembly, the convening authority can remove any member for any reason. But after assembly it can do so only for good cause under Article 29(a). The Court discussed the difference between jurisdictional and administrative errors in convening a court-martial and determined the error here was administrative by not providing the good cause which existed based on Lt Col PBL’s transfer on the record. It was a failure to document the good cause rather than a lack of good cause. Next the Court turned to prejudice under the plain error analysis. Chief Judge Ohlson praised the government for conceding the obvious and admitting that there was an error and it was a clear or obvious error. It was a nice reminder. I suspect most of us have encountered situations where the other side refuses to concede obvious points. I’m glad the Chief Judge pointed out that the government did the right thing here. Like so many cases, it all came down to prejudice. Did Lt Col PBL’s absence constitute material prejudice to a substantial right? The Court called it “rank speculation” that Lt Col PBL may have been more favorable to the defense based on his past experience. The defense argued that it was denied the opportunity to investigate Lt Col PBL’s excusal and litigate it at trial. But the Court pointed out that Appellant was fully aware of his absence and he could have raised the issue at anytime during the court-martial. Finding no prejudice, the Court affirmed the CCA. Two judges wrote concurring opinions worth mentioning. First, Judge Maggs wrote separately to argue that he would have found waiver rather than forfeiture. He points out that the Court’s precedents on the issue are “all over the map.” Rather than try to reconcile the long list of conflicting decisions, Judge Maggs would apply the plain text of R.C.M. 905(e) and find waiver of the issue. Second, Judge Hardy also concurred. But he wrote separately to raise an issue that is used much less than it might be at trial. He wrote relying on Article 36 which delegates to the President the authority to promulgate procedural and evidentiary rules for courts-martial. But those rules much, “so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts.” Because federal civilian courts would generally apply a plain error analysis under Fed. R. Crim. P. 52(b), he would do the same. It is an important reminder for parties to consider what the federal law is that might be applicable or analogous. Too often, advocates (including me!) don’t even think to look. The best lesson from the case is taken from the beginning of Chief Judge Ohlson, “This case underscores the need for everyone involved in a court-martial panel to pay meticulous attention to the panel member selection process.” Jason Grover.In United States v. Brissa, it was discovered after trial that one of the trial counsel had his licence suspended four months before the Appellant's trial. No prejudice, affirmed.
What is more interesting is the court's discussion of Jessie. Wednesday, February 22, 2023 Order Granting Petition for Review No. 23-0010/NA. U.S. v. Eric S. Gilmet. CCA 202200061. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862 (2018), it is ordered that said petition is hereby granted on the following issue:
WHETHER THE MILITARY JUDGE ERRED WHEN HE FOUND THE GOVERNMENT FAILED TO PROVE THAT UNLAWFUL COMMAND INFLUENCE (1) WOULD NOT AFFECT THE PROCEEDINGS BEYOND A REASONABLE DOUBT, AND (2) HAS NOT PLACED AN INTOLERABLE STRAIN ON THE PUBLIC'S PERCEPTION OF THE MILITARY JUSTICE SYSTEM. You may soon see DoD banning the sale of bagels at any on base Dunkin Donuts (or other on base bagel provider) and of course the Commissary where bagels are sold. For those who enjoy an everything bagel, give it up. For those who enjoy a bagel, give it up because they are made and stored in close proximity to everything bagels were there is a risk of cross-contamination between bagel toppings. In the meantime, DoD will be putting together a task force and seeking funding of approximately $2.5M to study the ability of the drug testing laboratories to increase the nanogram level for reporting a positive use of poppy seeds in golden flow products. For why, While enjoying a nonbagel breakfast ponder United States v. Pugh. Both Pugh and pumpkin bread have been recommended for breakfast by alert readers. |
Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
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