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Military Justice Outline

OVERVIEW OF MILITARY JUSTICE

1. OVERVIEW OF THE SYSTEM FROM START TO END a. See Chart on Pg. 1 of Course Pack! b. Chart on Pg. 7 Analogous courts of Law, Chart on Pg. 25 c. The Military Justice System c.i. Commanders c.i.1. First get the issue that arises, many are also convening authority c.i.1.a. Not company commanders c.i.2. First-line supervisor c.i.3. Can appoint investigators c.i.4. Anything the lower commanders can do, the higher commanders can do c.i.5. Captain, Battalion Captain, Lt. Col, Brigade Cornel c.i.6. can appoint investigator officer, convene a straight special, can pull everything to his level c.ii. Report of Misconduct c.iii. Military Police & Investigators c.iv. Accuser c.iv.1. Signs at the bottom of the charge sheet c.iv.2. Should never be the convening authority c.iv.3. Anyone who is subject to the Code who prefers the charges with some knowledge or investigative matter into the charges c.iv.4. Swears that they have knowledge of the charges.

c.v. Charge c.v.1. Charge Sheet pg. 3-4 c.v.2. List the Article c.vi. Specification c.vi.1. Describes the Charge with the relevant facts c.vii. Preferral c.vii.1. Starting the charges for someone who is subject to the code c.viii. Convening Authority c.viii.1. Appoint the different members of court martial c.viii.2. Convenes the charge to trial c.viii.3. Commander c.ix. Article 32 Investigation/ Hearing c.ix.1. Akin to a Grand Jury hearing c.ix.1.a. Except counsel is present c.ix.1.b. It is like a Discovery  Witness are also present c.ix.2. Only REQUIRED before a general courts martial can take place c.x. Staff Judge Advocate c.x.1. Senior JAG at an installation c.xi. Trial Counsel -- Prosecutor 1 c.xii. Pretrial Advice – Article 34, UCMJ c.xii.1. Staff Judge Advocate gives pretrial advice to the convening authority c.xii.1.a. SJA signs written advice (Before GCM or BCD-SPC) c.xii.1.a.i. Each spec alleges a UCMJ offense c.xii.1.a.ii. Allegations warranted by the evidence c.xii.1.a.iii. CM has jurisdiction over acc & offenses c.xii.1.a.iv. Recommended disposition (CM level or Art. 15 or none) c.xii.1.b. To GCMCA before GCM c.xii.1.b.i. Also before GCM Article 32 Pretrial hearing c.xiii. Referral c.xiii.1. Refer the case to a court martial to hear the case c.xiii.2. Company Commander (not a convening authority) c.xiii.3. Battalion Commander (SCMCA) c.xiii.4. Brigade Commander (SPCMA) c.xiii.5. Commanding General (BCD-SPC & GCMCA) c.xiv. Military Judge c.xiv.1. Not part of the command, they are separate service c.xv. Court members c.xv.1. Come out of the command, out of where the convening authority sits c.xv.2. Must be equal or greater in rank c.xvi. Action c.xvi.1. The CA acts on the case after the court martial proceeding is done c.xvi.1.a. Dismiss charges, lessen offense, enforce recommendation c.xvii. Initial Disposition c.xvii.1. Action c.xvii.2. Administrative Action c.xvii.3. Nonjudicial punishment (A.15) c.xvii.4. Preferral of Charges c.xvii.5. Forward the matter to a superior d. US v. Tittel (CAAF. 2000) d.i. Issue: Whether the Convening Authority was an Accuser and thus could not convene Appellant’s court-martial d.i.1. The charge was willful disobedience, so accused tries to argue that the officer was the VICTIM of the crime d.ii. Only an accuser if he had a personal interest in the charges d.iii. Even if he was the accuser, he wasn’t prejudiced e. US v. Schap (ACCA 1996) e.i. Illustrates the seriousness of some of the cases that the military justice system must address e.ii. Decapitated head case – addressed whether this was premeditated murder 2. THE HISTORY OF MILITARY JUSTICE AND SOURCES OF LAW a. History a.i. 1774 Articles of War 2 a.i.1. Specified Offenses that could be tried by a court-martial a.ii. Army Articles of War & Articles for the Government of the Navy a.iii. 1947 – DoD Formed a.iv. 1950 UCMJ & 1951 MCM b. Sources of Law b.i. Article 1, Sec. 8, U.S. Constitution b.i.1. Congressional Power to make rules for the government and regulation of land and naval forces b.ii. UCMJ b.ii.1. Prior to 1950, military justice varied from service to service. b.ii.2. Articles 36 & 56, Delegation to President b.ii.2.a. MCM (Manual for Courts Martial) b.ii.2.a.i. Preamble b.ii.2.a.ii. Rules for Courts-Martial b.ii.2.a.ii.1. Procedural Rules b.ii.2.a.iii. Punitive Articles of the UCMJ (77-134) b.ii.2.a.iii.1. Text from the UCMJ b.ii.2.a.iii.2. Elements of the Offense b.ii.2.a.iii.3. Explanation b.ii.2.a.iii.4. Lesser-Included Offense b.ii.2.a.iii.5. Maximum Punishment b.ii.2.a.iii.6. Sample Specificaiton b.ii.2.a.iv. Nonjudicial Punishment (Article 15) b.ii.2.a.v. Appendices b.ii.2.a.v.1. Constitution b.ii.2.a.v.2. UCMJ b.ii.2.a.v.3. Forms, Trial Guides, Analysis, Eos b.ii.2.b. Military Rules of Evidence b.ii.2.b.i. Comes from Presidential Executive Orders b.ii.2.b.ii. But 1102 says that FRE becomes MRE within 18 months if no action taken b.ii.2.c. Maximum Punishments b.ii.3. Article 140, Delegation to the Services b.ii.3.a. Regulations b.ii.3.b. Trial Defenses Service b.ii.3.c. Trial Judiciary b.iii. Article II, Clause 1: President is Com. in Chief. c. WHY the need for a Military Justice System c.i. General Westmoreland Former Army Chief of Justice: c.i.1. Promotes good order and discipline, thus enhancing the military’s ability to accomplish the mission c.i.2. Needs to operate all times, locations, circumstances when civilian system could not operate c.ii. Discipline

3 c.ii.1. “A state of mind which leads to a willingness to obey an order no matter how unpleasant or dangerous the task to be formed – is not a characteristic of a civilian community. Development of discipline, correction of individuals is indispensable. Thus, it is a mistake to talk of balancing discipline and justice – the two are inseparable.” -- Powell Report on Military Justice (1960) c.iii. Justice c.iv. Separate System for the Military? c.iv.1. Promotes good order & discipline c.iv.2. Enhance efficiency & effectiveness in operational settings c.iv.3. Strengthen National Security c.iv.4. Promote Justice d. U.S. v. Laxauskas (CAAF, 2005) d.i. Right for a speedy trial under RCM 707 is different than UCMJ Article 10 – d.i.1. RCM says you can waive speedy trial, whereas the UCMJ says you cannot d.ii. RCM was for 120 days, but he was confined for more than that! d.ii.1. But remember, the 120 day rule is whether or not the military CAUSES you to be confined for that period of time, and here the investigating officer gave a 6-day delay at the request of the defense! 3. JURISDICTION OVER MILITARY PERSONS AND OFFENSES a. Potential Criminal Courts a.i. Court-martial (UCMJ, Fed, or State crimes) a.i.1. DOJ and DOD has entered into a MOU that establishes a presumption that services members will be tried in courts-martial a.ii. Federal Court (Title 18) a.ii.1. Fed can decide to have jurisdiction over the cases a.ii.2. Would be DJ to try under both military and fed courts a.iii. State Court a.iii.1. Not DJ for CM bc different sovereign a.iii.2. U.S. v. Schneider (ACMR, 1992) a.iii.2.a. Charges: Attempted murder, adultery, and perjury (perjured testimony from state ct proceedings) a.iii.2.b. Doctrine of collateral estoppel is not applied in military criminal law, and not DJ

a.iii.3. Overseas (Status of Forces Agreement) a.iii.3.a. Agreement between countries is controlling a.iii.3.b. Some countries want to exercise jurisdiction over a case that happens in their country a.iv. Key Questions: a.iv.1. Where did it happen a.iv.2. Who can try them b. Over the Person b.i. At the time of the offense b.i.1. Military Status at the Time of the Offense b.i.1.a. Active Duty Force b.i.1.b. Reserve Component in Title 10 Status

4 b.i.1.b.i. Active Duty b.i.1.b.ii. Annual Training b.i.1.b.iii. Active Duty Training b.i.1.b.iv. Inactive Duty Training b.ii. AND at trial (involuntary recall to AD) b.iii. From Start to Finish b.iii.1. Start b.iii.1.a. Upon enlistment/Introduction, Commission, Ordered to Active Duty b.iii.1.b. Constructive Enlistment – See RCM 202 b.iii.2. Finish b.iii.2.a. Delivery of Valid Discharge Certificate b.iii.2.a.i. Effective midnight of date of certificate b.iii.2.b. Final Accounting of Pay b.iii.2.c. Completion of the Clearing Process b.iii.3. Retirees, UCMJ, Art. 2(a)(4) b.iii.4. Inmates, UCMJ, Art 2(a)(7) b.iii.5. Enemy POWs, UCMJ, Art. 2(a)(9) b.iii.6. Person serving with or accompanying the Forces during declared war or contingency operations – NOT dependents b.iii.6.a. Reid v. Covert (1957) b.iii.6.a.i. Court-Martialed a civilian wife b.iii.6.a.ii. Cannot try civilians through CM proceedings b/c you lose a lot of your const. protections b.iii.6.a.iii. AND rights don’t change b/c you are charged abroad b.iii.7. Reserve Component – In Title 10 status c. Over the Offense (subject-matter) c.i. UCMJ (Anywhere) c.ii. Title 18 c.iii. State Offenses Under Art. 134 c.iv. Service Connection? – NO c.iv.1. Solorio v. United States (1987) c.iv.1.a. Issue: whether the jurisd of a CM to try a member of the Armed Forces depends on the “service connection” of the offense charged – NO Proper CA d. Proper Referral to trial e. Proper Court (MJ and Members assembled) f. Lack of Jurisdiction f.i. Motion to Dismiss f.ii. RCM 907 f.iii. Anytime during the proceedings

LE OF THE COMMANDER AND UNLAWFUL COMMAND INFLUENCE 4. ROLE OF THE COMMANDER AND UNLAWFUL COMMAND INFLUENCE a. Role of the Commander a.i. MCM: Responsible for Good order and discipline

5 a.ii. UCMJ, Art. 37: No one subj to the code may attempt to coerce or influence a court-martial [a just system] a.iii. Fair and impartial a.iv. Judicial/prosecutorial authority a.v. Independent discretion a.vi. Individual consideration of each case b. Unlawful Command Influence Overview b.i. Anyone in the judicial process can engage in UCI b.ii. Statements: b.ii.1. “The Improper use, or perception of use, of superior authority to interfere with the court-martial process.” b.ii.2. “The mortal enemy of military justice” b.iii. Actual or Apparent Influence b.iv. Art 37 and RCM 104: Unlawfully Influencing Court Action b.iv.1. Who does this? b.iv.1.a. Commanders b.iv.1.b. Persons subject to the Code b.iv.2. What is prohibited? b.iv.2.a. Censure, reprimand, admonish ctmbs, counsel, judge b.iv.2.b. Coerce witnesses or attempt b.iv.2.c. Evaluations c. UCI Analysis c.i. Defense must produce: c.i.1. “Some evidence” to raise UCI c.i.2. And facts if true = UCI c.i.3. And has a connection to potential unfairness of the proceedings c.ii. Burden shifts to Gov to prove c.ii.1. Beyond a reasonable doubt no UCI c.ii.2. OR UCI will not [for appeal – did not] affect the proceedings c.ii.2.a. US v. Biagase (CAAF, 1999)

6 c.ii.2.a.i. Argued that there was UCI bc copies of his confession was sent to his unit and he was made an example of 1. Claimed it gave him a lack of good moral character influence c.ii.2.a.ii. IF commanders must address crime within a unit they are reminded to talk about the offense, rather than the offender, and the process, rather than the result.” c.ii.2.a.iii. There was UCI, but ct stated that the judge took precautions to make sure he got a fair trial c.ii.2.a.iii.1. No evidence that any witness was deterred from testifying, c.ii.2.a.iii.2. and those that did testify, testified favorably about the accused. d. May Not Do d.i. Order a subordinate to handle a case in a certain way d.ii. Have an inflexible policy d.iii. Be accuser and refer d.iv. Select or remove members to get a particular result at trial d.v. Place outside pressures on the judge or members d.v.1. US v. Baldwin (CAAF, 2001) d.v.1.a. Commanding Authority exercised UCI over the proceedings by requiring the court members, in the middle of the trial, to attend an officer professional development program where “appropriate” punishments for Officer Court- Martial Defendants were discussed. d.vi. Intimidate or discourage witnesses d.vii. Punish an accused before trial d.viii. Have an inflexible attitude towards clemency d.ix. Have subordinates/staff who do d.x. Personally dispose of a case within CA’s authority or a subordinate d.xi. Send a case to subordinate without a recommendation d.xii. Forward a case to a superior w/ a recommendation d.xiii. Pull a case up d.xiv. Refer a CM on a case after lower Cdr gives an A. 15 d.xv. Withdraw & withhold a case or types of cases (e.g., NCOs, Officers) e. Relief for UCI e.i. Trial-Level Relief e.i.1. Tailored by MJ e.i.2. Dismiss w/ or w/o prejudice e.i.3. CA clemency e.ii. Appellate-Level Relief e.ii.1. Dubay post-trial hearing e.ii.2. Dismiss sentence = sentence rehearing e.ii.3. Dismiss findings and sentence – to another convening authority or total dismissal

7 JUDGE ADVOCATE PROFESSIONAL RESPONSIBILITY

1. SEPARATE MILITARY LAWYERS FOR THE PROSECUTION AND THE ACCUSED a. Government & Defense, the Lawyer-Client Relationship b. UCMJ, Article 27(b) Qualified and Certified b.i. Graduate of an accredited law school or is a member of the bar of a Fed Ct r the highest court of a State b.ii. Certified as competent to perform such duties by the Judge Advocate General of the armed force of which he is a member c. Regulations – Member of a bar in good standing c.i. What about inactive status? c.i.1. US v. Steele (CAAF, 2000) c.i.1.a. Inactive bar status (but still members of a bar) does not disqualify military attorneys (or civilian counsel representing an accused) from serving at a CM, and does not necessarily render counsel ineffective or reflect a denial of the accused’s VI Amend. Rights c.i.1.b. There is a difference between inactive status claim and not a member of a bar in good-standing c.i.1.c. Under UCMJ 38(b) accused may be represented by a civilian counsel if provided by him – still just a member of the bar c.ii. What about conflicts in bar rules? c.ii.1. In each service there is an ethics office and can get a reading from them d. Same firm – Different Clients d.i. Accused d.ii. The Service d.iii. If a commander relies and confides in a trial counsel, those conversations are not protected pursuant to an attorney-client privilege d.iv. Unlike trial counsel, Defense Counsel and their communications are protected (Trial counsel has attorney-client btwen lawyer and service)

e. Lawyer-Client Relationship e.i. Competent Knowledge, Skill, thoroughness, and preparations e.ii. Reasonable diligence e.iii. Defense Counsel retain authority to determine motions, select witnesses, and develop trial strategy, while their clients make the final decision regarding plea, forum, pretrial agreements, and whether to testify (does not include right to lie or have counsel assist you in lying). 2. STANDARDS REGARDING ADVOCACY a. Disclosure of adverse legal authority b. No personal opinions at trial c. No ex parte discussion w/ MJ, panel members, or IO d. TC must disclose to DC e. Evidence of contraband issues e.i. Don’t accept it e.ii. If possession can’t be avoided, turn it over, and protect clients ID 8 f. U.S. v. Qunitanilla f.i. A case of prosecutorial misconduct f.i.1. Ex parte communications f.i.1.a. But court determined that although the communications were ill advised they did not influence the IO’s report or record f.i.2. Reading aloud the Initial Review Officer in another proceeding in front of the MEDIA f.i.3. Acting as both witness and advocate f.i.3.a. Concluded no prejudice, but does not condone the behavior f.i.4. Dolling out evidence f.i.4.a. Evidence admitted at trial must be preserved under established evidence custody rules until such time that appellate review is final f.i.4.b. BUT had no impact on the findings and sentence f.i.5. Sitting in the witness box and getting in his face g. Perjury g.i. Advise clients from testifying falsely Review the facts Tell client about consequences Tell client obligation to tell the truth Possible criminal sanctions, effect of narrative g.ii. DC should investigate all evidence before deciding whether an accused is going to engage in perjury g.ii.1. Have a “firm factual basis” before limiting representation g.iii. Ex parte meeting with military judge that the accused will be presenting narrative testimony g.iv. If perjures, persuade client to rectify h. US v. Baker (ACCA, 2007) h.i. Standard for ineffective assistance of counsel (6th Amendment) h.ii. BUT ethical violation does not always mean ineffective assistance h.ii.1. Are appellant’s allegations true? h.ii.2. If so, is there a reasonable explanation for counsel’s actions? h.ii.3. If there is not a reasonable explanation, did DC’s level of advocacy fall measurably below the performance ordinarily expected? h.ii.4. D must also ordinarily show that there is a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceeding would be different. (Prejudice) h.iii. The DC went as far as to withdraw in this case! h.iii.1. Counsel should not have withdrawn and only should have notified the MJ that their client would testify in the free narrative form. h.iii.2. BUT the end result was the same, D testified, and his counsel did not aid in the presentation of perjured testimony.

i. US v. Cain (CAAF, 2004)

9 i.i. Whether A was denied the fund right to conflict free and effective assistance of counsel when the lead DC and appellant engaged in a secret homosexual relationship i.ii. Opened Accused to potential criminal and administrative actions resulting from the conduct between the A and his C i.iii. Violated ethical rules i.iii.1. While violation does not automatically = ineffective assistance, when conduct at issue is similar to the conduct at issue n Appellant’s trial, fed cts have taken diff approach i.iv. No waiver bc no one provided him with a detailed explanation of the relationship between the merits of the case and the attorney’s ethical obligations\ i.v. This case is different from the Babbit case because the counsel in this case is military as opposed to civilian counsel. 3. SUPERVISORY RESPONSIBILITY a. A senior military attorney is responsible for conduct of a subordinate attorney that the superior orders, or ratifies, or knows of and fails to take remedial action b. If a Sr military atty orders conduct amounting to ethical violations, the sub is still bound by the rules even when acting at the supervisor’s discretion 4. RESTRICTIONS IN COMMUNICATIONS TO THE PRESS AND OTHER THIRD PARTIES a. Cannot knowingly tell a falsity and cannot affirm another’s false statement or make public statements that will have a substantial likelihood of prejudicing the judicial proceeding b. Counsel cannot discuss the case with another person who is represented by counsel, but can talk to that person’s commander 5. STANDARDS OF ADVOCACY Can't ask accused if witnesses are truthful Can't unnecessarily intimidate, humiliate witnesses Interview with another person there

ALTERNATIVES TO TRIAL: ADMINISTRATIVE ACTIONS

1. ADMINISTRATIVE CORRECTIVE MEASURES a. Non-punitive methods of inducing compliance with military laws, regulations and customs b. RCM 306(c)(2) examples: b.i. Counseling b.ii. Admonitions b.iii. Reprimands b.iv. Exhortations b.v. Disapprovals b.vi. Criticisms b.vii. Censures b.viii. Reproofs b.ix. Rebukes b.x. Extra military instruction b.xi. Administrative withholding of privileges c. When use? c.i. MCM: “Nonpunitive measures usually deal with misconduct resulting w/ simple neglect, forgetfulness, laziness, inattention to instructions, sloppy habits,

10 immaturity, difficulty in adjusting to disciplined military life, and similar deficiencies.” d. RCM 306(b) Commanders should consider these factors in deciding how to respond to misconduct: d.i. Character and military service of the accused d.ii. Nature and circumstances surrounding the offense and the extent of the harm caused by the offense, including the offense’s effect on morale, health, safety, welfare, and discipline d.iii. Appropriateness of the authorized punishment to the particular accused or offense d.iv. Possible improper motives of the accuser d.v. Reluctance of the victim or others to testify d.vi. Cooperation of the accused in the apprehension or conviction of others d.vii. Availability and likelihood of prosecution of the same or similar and related charges against the accused by another jurisdiction d.viii. Availability and admissibility of evidence d.ix. Existence of jurisdiction over the accused and the offense; and d.x. Likely issues e. US v. Wolfson (U.S. Army Bd of Review, 1996) e.i. Failed to shave – charged with dereliction of duty and conduct unbecoming e.ii. A duty may be imposed by regulation, lawful order or custom of the service – Paragraph 171c, MCM e.ii.1. Did not find a regulation, order, or usage or custom e.iii. Deciding to shave in the afternoon rather than the morning fails to be conduct unbecoming of an officer e.iv. Article 133 is to be reserved for serious delicts of officers, and should not be demeaned by using it to charge minor delinquencies that can be more appropriately handled by instruction, counseling or other types of administrative corrective action. 2. UCMJ, ARTICLE 15, NONJUDICIAL PUNISHMENT a. Nonjudicial Punishment a.i. Punitive – not administrative a.ii. CMDR hears evidence and imposes punishment a.iii. Minor Offenses, such as a.iii.1. Misues of gov property a.iii.2. Fraternization a.iii.3. Unprofessional relationships a.iii.4. Driving while intoxicated a.iii.5. Underage drinking a.iii.6. Cheating on tests a.iii.7. Disobeying Orders a.iv. Before Article 15, CMDR should: a.iv.1. Have reasonable grounds to believe alleged misconduct occurred a.iv.2. Offense under the UCMJ a.iv.3. Accused is the alleged offender a.v. Summarized (informal) Proceedings a.v.1. Read Article 15 to accused – informing them of the charges and articles

11 a.v.2. Tell acc the max a.v.3. Inform accused of rights: a.v.3.a. Can demand trial by CM a.v.3.b. Call and confront witnesses a.v.3.c. Examine evidence, submit defense, extenuation & mitigation a.v.3.d. To appeal a.v.4. No Right: a.v.4.a. To consult attorney a.v.4.b. Request an open hearing a.vi. Formal Proceedings a.vi.1. Right to consult an attorney a.vi.2. Company Grade a.vi.3. Field Grade a.vii. Both Proceedings a.vii.1. Officer imposes – commissioned or warrant a.vii.2. Findings – Beyond a reasonable doubt a.vii.3. Sentence – Extenuation & Mitigation a.viii. Punishment may include: a.viii.1. Reduction in rank, loss of pay, imposition of extra duties, restrictions to the barracks or post, correctional custody a.viii.2. Receiving an Article 15 generally will end the career of an officer, but will not necessarily prevent the subsequent promotion of junior enlisted members a.ix. Nonjudicial Punishments Authorized a.ix.1. Extra duties a.ix.2. Restriction to specified limits a.ix.3. Reduction in grade a.ix.4. Forfeiture of pay a.ix.5. Correctional custody a.ix.6. Confinement on bread and water or diminished rations a.ix.7. Arrest in quarters (up to 30 days) a.x. US v. Pierce (CMA, 1989) a.x.1. Issue: Does nonjudicial punishment preclude subsequent punishment by a court-martial for the same offense? a.x.2. No, Article 15 clearly states: That any punishment under this article is not a bar to trial by court-martial for a serious crime or offense growing out of the same act or omission a.x.3. BUT: a servicemember can not be twice punished for the same offense or that the fact of a prior nonjudicial punishment can be exploited by the prosecution at a CM for the same conduct. – THIS would violate due process a.x.3.a. In these circumstances, an accused must be given complete credit for any and all nonjudicial punishment suffered a.x.3.b. And nonjudicial punishment may not be used for any purpose at trial, such as impeachment; to show that an accused has a bad service record; or any other evidentiary purpose 3. ADMINISTRATIVE SEPARATIONS FROM THE SERVICE

12 a. Means for addressing misconduct: CMDRS can follow certain procures and then administratively separate b. When administratively separated, one of three types of discharges: b.i. Honorable discharge b.ii. General discharge under honorable conditions b.iii. Other than honorable discharge b.iv. Don’t Confuse with punitive discharges that can be ordered by a CM: b.iv.1. Dishonorable Discharge b.iv.2. Bad-Conduct Discharge c. Cannot be discharged without due process c.i. Notice c.ii. Opportunity to be heard c.iii. Separation Board prior to separating enlisted members from service and an investigation by a board of inquiry before officers are separated d. Adjudicative Separation Boards d.i. Similar to trials d.ii. Composed of at least three officers d.iii. A nonvoting legal advisor may be appointed to assist the Board d.iv. Accused has the right to testify, counsel, call witnesses, present arguments d.v. BUT rules of evidence applicable during a crim trial are not present d.vi. Proof: Prep. Of the Evidence d.vii. Board makes recommendation, and record is forwarded to the separation authority for indep review d.vii.1. In cases other than honorable discharge, the proceedings are also reviewed by attorney d.vii.2. If Board recommends retention, but SA recommends separation, case is forwarded to the Secretary of the military branch for final review and decisions

e. Appeal e.i. First to a higher level commander e.ii. Then to the Court of Federal Claims e.iii. Then to the US Ct of Appeals for the Fed Circuit e.iv. Then to the SCt. e.v. Contend that the Service violated the Constitution, statues, or regulations  but challenges generally can only address the procedures followed by the separation board e.v.1. On the substantive question of whether they should be separated, cts generally defer to the Services. e.vi. Clifford v. United States (Ct. Appeals for the Fed Circuit, 2005) e.vi.1. Asserts violation of due process for three reasons: e.vi.1.a. Denied his right to legal representation e.vi.1.a.i. Fact that his attorney did not show up, does not mean his right was violated  his choice to choose this counsel e.vi.1.a.ii. He still acted pursuant to the advice of his counsel at the proceedings e.vi.1.b. President of the board did not counsel him during the board’s hearing

13 e.vi.1.b.i. In order to be entitled to counseling, he needed to be appearing pro se e.vi.1.c. His non-commissioned Officer Evaluation Reports were not in evidence before the board e.vi.1.c.i. He did not attempt to introduce the reports, and the Board never rejected them 4. SUMMARY COURTS-MARTIAL a. Great for an offense in the gray area between an Art 15 and a Special Court-Martial b. Tribunal, authorized by Article 120 of UCMJ, that consists of just one officer b.i. The officer is usually not a judge advocate, but may seek advice from one on questions of law b.ii. Only noncapital offenses b.iii. May refuse Summary CM and demand trial by a special or general court martial c. RCM 1301: Purpose is to promptly adjudicate minor offenses under a simple procedure d. Limitations d.i. Cannot impose a punishment greater than 45 days’ confinement or 1 month of hard labor; restriction to specified limits for more than 2 months, or forfeiture of more than 2/3s of 1 month’s pay d.ii. May reduce enlisted members to the lowest pay grade if they are grade E4 or below d.iii. No right to appointed counsel, but may retain civilian counsel if they want e. Middendorf v. Henry (1973) e.i. Addressed the constitutionality of denying the accused a right to appointed counsel by summary court-martial e.ii. Says these proceedings aren’t adversarial, and they could always request a special or general court martial e.iii. Discusses the need for a summary court-martial in the military section e.iii.1. Exercises justice promptly for relatively minor offenses under a simple form of procedure e.iv. Parallel between probation and parole proceedings e.v. Counsel would alter significantly the nature of the proceeding (defeat the purpose)

PRETRIAL PHASE OF MILITARY JUSTICE

1. SELF INCRIMINATION AND UCMJ, ARTICLE 31(B) RIGHTS a. ARTICLE 31(B) V. MIRANDA WARNING a.i. Article 31(b)

14 a.i.1. “No person subject to this chapter may interrogate, or request any statement from an accused or a person suspected of an offense without first informing him of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him a trial by court-martial.” a.i.2. 1951 – Congress created to prevent military coercion due to rank structure a.i.3. You are suspected of: a.i.4. Right to remain silent a.i.5. Anything you say may be used against you a.i.6. Must warn: a.i.6.a. All person subject to the code, a.i.6.b. Official cap & perceived as more than casual (doug) a.i.6.c. Law Enforcement or disciplinary role (primary purpose) (Loukas) a.i.7. Who must be warned: Accused or suspect a.i.8. Interrogation: Formal or informal questioning or equivalent a.i.9. Statement: Testimonial or communicative a.i.10. Unlike Miranda, does not include the notice of the rt to counsel

15 a.i.11. Often times given in card form a.i.12. Scope: Oral or written statements a.i.12.a. Not protected: physical characteristics – voice, handwriting, voice samples, body fluids a.i.13. Directed at an individual, not a group a.i.13.a. Remember, did the interrogator believe or reasonably should have believed that the person interrogated committed an offense a.ii. Miranda a.ii.1. 1966 – SCt compulsion inherent in custodial interrogation a.ii.2. Right to remain silent a.ii.3. Anything you say may be used against you a.ii.4. Counsel present & consult – free if you are indigent a.ii.5. Required to be given by law enforcement or agents of law enforcement in a custodial section a.ii.6. Who must be warned: Anyone in custodial interrogation a.ii.7. Interrogation: Same a.ii.8. Statement: Same a.ii.9. Prior to a custodial a.ii.9.a. Custody: objective standard, perspective of subject, formal arrest or restraint or significant deprivation of freedom a.ii.10. Interrogation a.ii.10.a.Formal or informal questioning – evidence of testimonial or communicative nature is sought a.ii.11. Warning a.ii.11.a.Right to remain silent, stmt may be use, right to attn present (retained or appointed)

16 a.ii.12. Who must warn? a.ii.12.a.Law Enforcement a.ii.13. Who must be warned? a.ii.13.a.Person in custody b. US v. Duga (CMA, 1981) b.i. Limits the rights advertisement to situations where military rank, duty, or similar circumstances may result in pressure on a military suspect to respond to questioning. b.ii. OSI tells Byers if he knows anything to let him know b.iii. Duga thinks Byers in his friend and just voluntarily offers information, Byers and him talk about it casually. Conversation was "buddy-buddy" b.iv. Investigator was NOT acting in his official capacity and there was no coercion going on – No Article 31(b) rights b.v. Necessary to determine whether: b.v.1. A questioner subject to the Code was acting in an official capacity in his inquiry or only had a personal motivation; and b.v.2. Whether the person questioned perceived that the inquiry involved more than a casual conversation c. US v. Loukas (CMA, 1990) c.i. Aircraft, cocaine, basically asked him what he was on – public safety c.ii. Wasn’t asking him for disciplinary reasons or to interrogate him c.iii. Used in an operational context c.iv. BUT Captain Cottam’s subsequent questioning did violate the Code. d. Confessions d.i. Voluntary d.i.1. Did the government overbear the accused’s free will? d.i.2. Look at the totality of the circumstances d.i.2.a. Look at the suspect’s characteristics – age, education, experience, health, IQ, mental & physical condition d.i.2.b. Nature of detention – length, conditions, attorneys, rights read, access to relatives d.i.2.c. Interrogation Method – length, # of interrogators & manner d.i.2.d. Lying is ok, promises is problematic d.ii. Rights required were provided to suspect d.iii. If rights waived – must be knowing and voluntary d.iv. Confession is corroborated by other evidence d.v. Pretrial motion to suppress 2. APPREHENSION AND PRETRIAL CONFINEMENT IN THE MILITARY a. Apprehension a.i. UCMJ Article 7 – similar to a civilian arrest a.ii. Taking a person into custody a.iii. MPs, commissioned, warrant, petty & noncommissioned officers may apprehend a.iv. No warrant or authorization except for private dwelling a.v. Process:

17 a.v.1. Notify person a.v.2. Based on probable cause – reason to believe that the person has committed an offense b. Pretrial Restraint b.i. Conditions on liberty – order to avoid certain places or report to certain persons at certain times b.ii. Restriction in lieu of arrest – order to state in a specific geographical limits b.iii. Arrest – order to remain in specified limits and may not be required to perform military duties b.iv. Pretrial confinement, RCM 305 b.iv.1. CMDR must have probable cause/reasonable grounds that: b.iv.1.a. CM offense committed b.iv.1.b. Prisoner committed it b.iv.1.c. Confinement necessary – foreseeable accused will not appear at trial/investigation or prison will enage in serious criminal conduct and lesser restraint is inadequate b.iv.2. Review of CDRs decision by impartial person (48 hour review – could be a military magistrate – prob cause hearing) b.iv.3. Cdr’s decision to continue pretrial confinement (72 hr review) b.iv.4. Possible judicial review – motion for app relief to trial judge or writ (ext relief from app ct) b.v. Only cdr can order officers restrained; Enlisted – any commissioned officer but may be delegated to warrant, petty, and NCO of his/her command b.vi. Notify person – oral or written – of the restraint, terms & limits AND offense that is the basis b.vii. Based on probable cause – reason to believe b.viii. Accused pending charges should continue to perform duties b.ix. Restraint should be no more rigorous than necessary b.x. Restraint is NOT punishment – Art. 13 Persons restrained pending trial may not be punished for the offense that is the basis for the restraint c. Article 13 – illegal pretrial punishment c.i. Punishment prior to trial, where the intent was to punish c.ii. Unduly harsh conditions – more rigorous than necessary to ensure accused’s presence at trial c.iii. Article 13 credit can be given (days credited to the sentence of confinement) c.iii.1. US. V. Gilchrist (ACCA, 2005) c.iii.1.a. Shackle him to a bad in the ice box c.iii.1.b. Issue: Was this Article 13 punishment prior to trial – with an intent to punish, OR legal pretrial restraint? c.iii.1.c. Unduly harsh conditions – more rigorous than necessary to ensure accused’s presence at trial c.iii.1.c.i. Not a flight risk c.iii.1.c.ii. Not a risk to himself or others c.iii.1.c.iii. Lesser restraint could have worked c.iii.1.c.iv. BUT remember – shackling is not per se unduly harsh c.iii.2. US v. Cruz c.iii.2.a. Mass punishment, in front of the unit

18 c.iii.2.a.i. Removal of crests, called names, handcuffed and searched in full view of soldiers remaining in formation c.iii.2.a.ii. Assembled a “Peyote Patoon” c.iii.2.b. Found this to be Article 13 pretrial punishment 3. SEARCHES VERSUS INSPECTIONS a. 4th Amendment a.i. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated…[and] no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” a.ii. Searches and seizures must be reasonable a.iii. When does it apply? a.iii.1. Gov intrusions a.iii.2. Not private parties a.iii.3. Ask if there is a reasonable expectation of privacy

b. Exclusionary Rule – MRE 311 b.i. Exclude evidence obtained in violation of the 4th Amend = unreasonable searches and seizures b.ii. “to deter – to compel respect for the constitutional guaranty in the only effectively available way by removing the incentive to disregard it.” b.iii. Fruit of the poisonous tree b.iv. Other MRE b.iv.1. 313 Inspections and inventories b.iv.2. 314 Searches not requiring probable cause b.iv.3. 315 probable cause searches b.v. Obtained illegally but still Admissible… b.v.1. Inevitable discovery – MRE 311 b.v.1.a. Would have been obtained even if such unlawful search or seizure had not been made b.v.2. Good Faith Exception – 311 b.v.2.a. Neutral and detached authorizing official b.v.2.b. Had substantial basis for believe PC existed when issuing the authorization b.v.2.c. Law Enforcement relied in good faith c. Katz v. US (1967) c.i. Phone booth call – govt says it wasn’t a protected space c.ii. After Katz, it’s the person who is protected not the space c.ii.1. Subjective expectation of privacy c.ii.2. Societal recognition that this is a reasonable expectation of privacy c.iii. Katz Test – Harlan Concurring – Reasonable expectation of Privacy c.iii.1. Knowingly exposed to public is not protected – voice, fingerprints, face c.iii.2. Subjective  Person has exhibited an actual (subj) expectation of privacy

19 c.iii.3. Objective  The expectation must be one that society is prepared to recognize as reasonable c.iv. No expectation of privacy c.iv.1. Open fields c.iv.2. Abandoned prop c.iv.3. Aerial view? c.iv.3.a. Subjective met – he had two fences c.iv.3.b. But not objective – its 1986, lots of planes fly over d. US v. Weston (CAAF, 2009) d.i. Wife gave permission, creepy shower camera guy d.ii. Voluntary consent may be obtained from the person whose prop is to be searched or from a fellow occupant with common authority d.iii. Physical presence and immediate challenge is required for the nonconsenting tenant’s objection to nullify the reasonableness of the search. d.iv. Contrast to Randolph case – two people, but he was there the whole time

e. US v. Larson (CAAF, 2008) e.i. No reasonable expectation of government owned computer – BUT remember, expectation of privacy in gov property is rebuttable e.ii. Access to computer by both CMDR and system admin e.iii. Banner appeared when he logged on f. 313 Inspections and Inventories f.i. Regulatory purpose – administrative f.ii. Not for criminal investigation f.ii.1. Health and Safety f.ii.2. May be to collect contraband (i.e. drugs) and weapons f.iii. No PC required f.iv. No Warrant required f.v. Watch out for subterfuge – Commanders try to use this to get evidence! f.v.1. In Military, if they come across evidence that is part of a routine inspection, then it can become evidence f.v.2. If purpose is to locate weapons and contraband f.v.3. AND f.v.3.a. Immediately following an offense reported – not previously scheduled, f.v.3.b. Targeted specific individuals OR f.v.3.c. Persons subject to different intrusions f.v.4. If subterfuge, govt must prove by CCE that the exam was an inspection f.v.5. IF contraband inspection BUT not after an offense, no targeted persons, no different intrusions then gov must show only a Pre of the E that the CMDR ordered the inspection for a proper primary purpose f.vi. Different expectation of privacy in the military f.vi.1. Greater government interest – readiness and effectiveness f.vii. Can be random group – can’t select specific person f.viii. Can be no person f.ix. CMDR should f.ix.1. Clearly designate area to be inspected

20 f.ix.2. Purpose to be served by the inspection f.ix.3. Does the intrusion serve the purpose f.x. US v. Campbell (CMA, 1994) f.x.1. A’s positive urinalysis test and his subsequent confessions were improperly admitted f.x.1.a. Poisonous tree – never would have called the guy in for questioning but for the urinalysis test f.x.1.b. No GFE, no warrant or authorization given f.x.2. Inspections are supposed to be on a nondiscriminatory basis f.x.3. CMDR had heard rumors and made a list of probable suspects – this was subterfuge g. 314 – No PC required g.i. Boarder searches g.ii. Entrance and exit on installation g.iii. Government Property g.iii.1. Unless reasonable expectation of Privacy (Larson) g.iv. Consent (Weston) g.iv.1. Control over prop g.iv.2. Can’t exceed scope g.iv.3. Voluntary h. 315 - PC Searches h.i. Search authorization: Military – neutral and detached h.i.1. CMDR with control over the area h.i.2. Military Judge or Magistrate h.ii. Authorization: Oral or Written, need not be under oath h.iii. Based on Probable Cause h.iii.1. Totality of the circumstances h.iii.1.a. Sufficient info h.iii.1.a.i. Quantum and nexus – Enough and related to the specific person or place h.iii.1.b. Info being considered is based on facts h.iii.1.b.i. Personal observation h.iii.1.b.ii. Admission or co-accused statement h.iii.1.b.iii. Self-verifying details (description, specific location) h.iii.1.b.iv. Independently corroborated) h.iii.2. Info being considered from a believable source? h.iii.2.a. Demeanor h.iii.2.b. Personal knowledge of sources credibility h.iii.2.c. Past reliability h.iii.2.d. Corroboration h.iii.2.e. Declarations against interest h.iii.2.f. Oath h.iii.2.g. Reputation of source h.iii.2.h. Statement from victim or eyewitness h.iii.2.i. Known soldiers telling CMDR h.iii.3. Exigent Circumstances – 315(g) h.iii.3.a. PC to search and

21 h.iii.3.b. Delay would result in loss of evidence h.iii.4. Auto Exception – 315(g)(3) h.iii.4.a. PC to search and h.iii.4.b. Operable vehicle 4. IMMUNITY (TESTIMONIAL, TRANSACTIONAL, DEFACTO) a. Forum Options for Accused a.i. Guilty a.i.1. Military judge hears providence inquiry (stipulation of fact) a.i.2. May have a pretrial agreement as to sentence a.i.3. Panel or military judge alone for sentencing a.ii. Not Guilty a.ii.1. MJ or panel trier fact and sentencing b. Immunity b.i. Only GCMCA can grant (but see RCM 704(e) MJ can sometimes) b.ii. Transactional – immune from trial for offenses under the code – the entire incident b.iii. Testimonial – W statements will not be used at trial by CM for the prosecution of W (or any derivate evidence) b.iii.1. Kastigar v. US (1972) b.iii.1.a. Protected from non-evidentiary use of immunized statements – including the decision to prosecute b.iii.1.b. Decide before testimony or show by prep that the decision was untainted by testimony b.iii.2. US v. Olivero b.iii.2.a. Drug investigation, said he used them, but then lied about it at trial b.iii.2.b. Failed to show by preop that decision was untained by testimony, but all evidence indicates the contrary b.iii.2.c. Trial Counsel should have packaged everything up first, and made a decision that they were going to charge him b.iii.3. De Facto Immunity – Reasonably relied on apparent authority

PRETRIAL PROCEDURAL REQUIREMENTS

1. PREFERRAL AND FORWARDING OF CHARGES a. Forwarding Charges a.i. MCM prohibits a CA who acts as an accuser from referring the case, but not from forwarding the case with a recommendation as to disposition a.ii. BUT a CA who merely signs the charge sheet and is “technically” an accuser may forward the case with a recommendation as to disposition only if the CA has remained impartial a.iii. The key to determining “impartiality” rests with whether the CA maintains an official interest in the case a.iv. US v. Nix (CMA, 1994) a.iv.1. Whether an officer w/ an other than official interest in a case may make the discretionary decision to order a pretrial investigation of the charges and then officially recommend that the charges be referred to a GCM a.iv.2. Flirted with his wife

22 a.iv.3. Record should be developed to show bias 2. UCMJ, ARTICLE 32, PRETRIAL INVESTIGATIONS a. Before a CA can refer a case to GCM, the highest level of CM, an independ investigating officer must conduct an Article 32 UCMJ investigative pretrial hearing a.i. The invest officer conducts a fact-finding investigation, hearing witnesses and reviewing evidence a.ii. The IO will weigh the facts and provide a report with conclusions and recommendations to the appointing authority a.ii.1. RCM 405 provides what information the report must contain a.iii. In the hearing, the accused has the right to be present and represented by counsel, generally open to the public, call witnesses, review evidence b. US v. Payne (CMA, 1977) b.i. A argues that the IO consulted so substantially with the TC that it constituted an abandonment of the required impartiality b.ii. The IO instead of consulting with an impartial legal advisor, chose to conduct ex parte communications with the man he knew would ultimately prosecute the case b.iii. BUT not an error per se – still in future prob wont be as forgiving 3. STAFF JUDGE ADVOCATE ARTICLE 34, UCMJ, PRETRIAL ADVICE TO THE CONVENING AUTHORITY a. Pretrial Advice Before GCM Review a.i. Art. 34 SJA Pretrial Advice Before GCM Referral a.i.1. Pretrial right of accused – protects against baseless charges and against referral to inappropriate CM level a.i.2. Must include conclusions (no analysis req’d) whether: a.i.2.a. Each specification alleges an offense under the UCMJ a.i.2.b. Allegation of each offense is warranted by the evidence in the A. 32 report (probable cause) a.i.2.c. A CM would have jurisdiction over accused a.i.2.d. Recommended action to be taken by CA a.i.2.e. Capital cases – given notice of aggravating factor a.i.3. SJA must personally sign a.i.3.a. Acting SJA is okay – NOT the Deputy SJA a.i.4. Copy to defense if case referred to BCM a.i.5. Enclosures with Pretrial Advice a.i.5.a. Charge Sheet a.i.5.b. Forwarding letter and endorsements a.i.5.c. Report of Investigations (A.32) a.i.6. Defects or no Pre Trial Advice provided a.i.6.a. Waived if not raised before entry of plea a.i.6.b. For relief at trial – must be so defective as to be misleading, incomplete a.i.6.c. If no PTA – must show prejudice to get relief b. US v. Plumb (AFCA, 1997) b.i. The same SJA who authored the defective pretrial advice, also authored and signed the post-trial SJA recommendation.

23 b.i.1. While prep of pretrial advice does not ordinarily disqualify a SJA from participation in the post-trial review, it will if the advice misstated a material fact or arrives at false conclusion b.ii. Also, some pre-trial acts or comments by a SJA may be so antithetical to the integrity of the Military justice system as to disqualify the SJA from further participation

4. REFERRAL OF A CASE TO TRIAL a. CA (CMDRS) may send or refer a case to trial by: a.i. Summary court-martial a.i.1. Misdemeanor Ct a.i.2. At least 3 panel members a.i.3. Max: 1 yr confinement, reduction to lowest enlisted grade, forfeitures of 2/3ds pay per month for 1 year a.ii. Special Court Martial a.ii.1. Same as summary, but with power to adjudge a BCD a.iii. General Courts-martial a.iii.1. Serious Offenses a.iii.2. At least 5 panel members b. CA reflects a list of service members who are to sit as the jury (panel) c. Curry v. Sec’y o fthe Army (DC Circuit, 1979) c.i. Due process attack on the multiple roles to the CA in court-martial proceedings c.i.1. Tried to argue that it deprives acc of fair and impartial trial – the CA initiates, apts members, reviews case (and approves findings) c.i.2. But Acc shows no specific prejudice c.ii. CA referral is necessary c.ii.1. CA needs to maintain good order and discipline c.ii.2. Already have procedures in place for UI c.ii.3. Needs to be fast and efficient c.iii. CA Appointing Panel c.iii.1. Need capable personnel to perform c.iii.2. CA can best determine who can participate

PRETRIAL DECISIONS

1. PLEAS/ FORUM OPTIONS a. Forum Options for Accused a.i. Guilty a.i.1. Military judge hears providence inquiry (stipulation of fact) a.i.2. May have a pretrial agreement as to sentence a.i.3. Panel or military judge alone for sentencing a.i.3.a. Enlisted members may request that 1/3 of panel members are enlisted members a.i.3.b. If you plead not guilty before the judge, you are stuck with the judge a.i.4. Waives trial on the merits if he enters a guilty plea a.ii. Not Guilty

24 a.ii.1. MJ or panel trier fact and sentencing b. Decide whether to accept an Article 15, nonjudicial punishment or trial by SummaryCM, or demand trial at a higher level 2. PRETRIAL AGREEMENTS a. Acc pleads guilty and CA agrees when case comes up for review to limit the sentence to the sentence in the agreement b. Guilty plea entered c. MJ reviews agreement, ensures acc understands terms and no ambiguities exist d. Sentencing authority doesn’t know limit (MJ or panel) – Acc gets lower of the two either adjudge or agreement cap e. What CA can promise: e.i. To refer case to certain type of CM e.ii. To refer capital case noncapital e.iii. Withdraw one or more charges or specs from CM

e.iv. Have TC present no evidence as to one or more specs e.v. Take action on the adjudge sentence cap f. US v. Dunbar (ACCA, 2004) f.i. Agreement: 3 months or more get a BCD, less than 3 months – gets a Chapter 10 separation in lieu of confinement f.i.1. Missing from paperwork: Nothing about the CA f.i.2. Should have drafted the responsibilities of the CA f.ii. MJ is required to ensure that the accused understands the pretrial agreement and the parties agree to its terms f.iii. Despite the apparent misunderstanding of a material term of the pretrial agreement at trial, the MJ failed to remedy the conflict by either ordering specific performance of the agreement or offering appellant the opportunity to withdraw from the plea 3. MILITARY PANEL (JURY) REQUIREMENTS AND SELECTION a. Military jury – no right to jury of peers – UCMJ Art. 25 a.i. Any commissioned officer on active duty a.ii. Any warrant officer on active duty is eligible to serve on G and Spec CM for the trial of any person, other than a commissioned officer a.iii. Any enlisted member on active duty who is not a member of the same unit as the accused is eligible to serve on G and Spec for any enlisted member… only if, prior to trial or .. before the court is assembled for the trial of the accused, the accused personally has requested orally on the record or in writing that enlisted members serve on it a.iv. When it can be avoided, no member of an armed force may be tried by a CM any member of which is Jr to him in rank or grade a.v. The CA shall choose the best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament a.vi. The CA may excuse a member of the Ct from participating in the case b. US v. Bartlett (CAAF, 2008) b.i. Ppl prohibited by Army Reg: Chaplains, vets, medical personnel, inspectors general b.ii. Ct says that this violates Article 25 which already establishes prohibitions

25 b.ii.1. Article 25: based on involvement in the case, the accused unit, or on distinctions in grade or rank.

MOTIONS

1. Motions  before plea a. For appropriate relief (in liminie, charges, counsel, mentally incompetent, witness issues) b. To dismiss (jurisdiction, charges, UCI) b.i. Jurisdiction never waived c. Mistrial c.i. Prob not ever waived? d. Finding not guilty e. RCN 905(b) parties may raise any defense, request or objection in a pretrial motion that is capable of determination without the trial of the general issue of guilt f. The following types before a plea is entered f.i. Based on defects in the preferral forwarding, investigation, or referral of charges f.ii. Based on defects in the charges and specifications f.iii. Suppress evidence f.iv. Discovery under RCM 701 or for production of witnesses or evidence f.v. Severance of charges or accused f.vi. Denial of request for individual military counsel or for retention of detailed defense counsel when individual military counsel has been granted g. A party’s failure to raise a defense or objection that must be raised in a pretrial motion under RCM 905(b) is a waiver of the defense or objection 2. SPEEDY TRIAL a. Sixth Amendment b. UCMJ, Article 10 b.i. Pretrial arrest or confinement (delay cannot be condoned) b.ii. Inform of charge b.iii. Try or dismiss and release b.iv. Creates a more exacting speedy trial demand than does the 6th Amendment c. RCM 707 d. US v. Mizgala (CAAF, 2005) d.i. Where an accused unsuccessfully raises an Art 10 issue and thereafter pleads guilty, waiver does not apply d.ii. An unconditional guilty plea ordinarily waives any complaint concerning violation of the right to a speedy trial d.iii. Pretrial confinement of 117 days, Article 10 not waived, but ultimately concluded that he didn’t suffer any prejudice d.iv. Article 10 vs. Rule 707 d.iv.1. Article 10 – says the accused has a right to a speedy trial d.iv.1.a. Trial judge erred by using “gross negligence” standards – should have been “unreasonable diligence” d.iv.1.b. Can be less than 120 days d.iv.1.b.i. Length of delay d.iv.1.b.ii. Reasons of delay d.iv.1.b.iii. Did acc demand speedy trial d.iv.1.b.iv. Prejudice

26 d.iv.2. Rule 707 – plea of guilty waives speedy trial d.iv.2.a. Made through an EO d.iv.2.b. 120 day limit if you didn’t waive the speedy trial d.iv.2.b.i. Tried within 120 days of preferral or imposition of restraining or call to active duty d.iv.2.c. Restart if dismissed or withdrawn charges d.iv.2.d. CLEARLY states that a plea of guilty waives any speedy trial issue as to that offense d.v. But ultimately found no prejudice d.v.1. No evidence that the conditions of that confinement were harsh or oppressive d.v.2. No indication that his prep for trial, defense evidence, trial strategy, or ability to present witnesses, on both the merits and sentencing were compromised by the prejudice 3. MOTION FOR A SANITY BOARD a. Mental Capacity to Stand Trial a.i. Motion for Appropriate Relief a.ii. RCM 706 Inquiry into Mental Capacity or Mental Responsibility of the Accused a.iii. Board = 1 or more, physicians or clinical psychologist – usually at least 1 = psychiatrist or clinical psych a.iv. If before trial, ask the convening board for the sanity board a.iv.1. Just a pretrial request a.iv.2. At trial, it’s a motion for appropriate relief a.v. Full board report to DC, report to court or CA: a.v.1. Did acc have severe mental disease or defect at the time of the offense a.v.2. What is the clinical psychiatric diagnosis a.v.3. Was acc due to severe mental disease or defect unable to appreciate the nature and quality or wrongfulness of his conduct a.v.4. Is acc presently suffering from mental disease or defect rendering acc unable to understand nature of proceedings a.vi. Incompetent to Stand Trial – what is the nature and potential duration? a.vi.1. Suspend proceedings a.vi.2. Take admin action a.vi.2.a. Administratively separate him a.vi.3. Withdraw charges or dismiss a.vii. US v. James (ACCA, 1997) a.vii.1. MJ denied DC motion for sanity board and offered an evaluation instead a.vii.1.a.Not a physician or clinical psych a.vii.1.b.One page check the box form a.vii.1.c. Not functional equivalent of a sanity board a.vii.2. In order for evaluation to be functional equivalent of sanity board

27 a.vii.3. Specific psychiatric testimony concerning the appellant’s capacity to understand the nature of crim proceedings and to cooperate in her defense at a CM; a.vii.4. Description of the examiner’s familiarity with forensic eval or participation in previous sanity boards; a.vii.5. Other evidence that the examiner attempted to perform an in- depth forensic eval of the sort contemplated by RCM 706 a.vii.6. Indication that the examiner was informed of the reasons for doubting the mental capacity of the accused as called for by RCM 706(c) b. Lack of Mental Responsibility Defense b.i. UCMJ 50(a) b.ii. Affirmative defense of lack of mental responsibility b.ii.1. At the time of the offense acc as a result of severe mental disease or defect was unable to appreciate the nature and quality or wrongfulness of his acts b.ii.2. Defense must prove by clear and convincing evidence b.ii.3. Panel deliberates on guilty findings and then if a guilty finding, decides if c and c evidence of lack of mental responsibility b.ii.4. Not guilty by reason of lack of mental responsibility (insanity) 4. MOTION IN LIMINE – UNCHARGED MISCONDUCT a. Inadmissible evidence not to be referred to at trial b. Failure to seek exclusion of evidence before trial through a motion in limine does not prevent raising an objection later during trial if the evidence is mentioned by the other side c. US v. Sparta (CMA, 1992) c.i. MRE 404(b) – no uncharged misconduct except to rebut assertion of innocence based on lack of criminal intent or other affirmative defense c.ii. Did MJ abuse his discretion in admitting the evidence c.iii. Cocaine ingestion, admitted evidence about a bar room fight c.iv. Allowed the evidence: c.iv.1. Because Sparta said that he unintentionally ingested the cocaine the incident could be brought in 5. ARTICLE 62 APPEALS AND PETITIONS FOR EXTRAORDINARY WRITS a. Article 62 Appeals a.i. Article 62(a)(1): In a trial by court martial in which a MJ presides and in which a punitive discharge may be adjudged, the US may appeal the following (other than order or ruling that is, or that amounts to, a finding of NG with respect to the charge or specification): a.i.1. An order or ruling of the MJ which terminates the proceedings with respect to a charge or specification a.i.2. An order or ruling which excludes evidence that is substantial proof of a fact material in the proceedings a.i.3. An order or ruling which directs the disclosure of classified information a.i.4. An order or ruling which imposes sanctions for nondisclosures of classified information a.i.5. A refusal of the MJ to issue a protective order sought by the US to prevent the disclosure of classified info

28 a.i.6. A refusal by the MJ to enforce an order described in subparagraph (E) that has previously been issued by appropriate authority a.ii. 62(a)(2): an appeal of an order or ruling may not be taken unless the TC provides the MJ with written notice of appeal from the order or ruling within 72 hours of the order or ruling a.iii. 62(a)(3) an appeal under this section shall be diligently prosecuted by appellate Government counsel a.iv. RCM 908: implements Article 62 says that an “appeal under Art 62 shall, whenever practicable, have priority over all other proceedings before the Ct of Crim Appeals. a.v. Government Appeals RCM 908 a.v.1. Military Judge’s Ruling: a.vi. Military Judge’s Ruling: a.vi.1. Terminates proceedings; a.vi.1.a. With respect to a charge or specification a.vi.1.b. = Granted motion to dismiss (e.g., multiplicious, LIOs) a.vi.2. Excludes important evidence a.vi.2.a. Excluding evidence that is substantial proof of a material fact a.vi.2.b. Motion to suppress: confession, evidence seized, etc. a.vi.3. Disclosure of classified info a.vi.4. Functional equivalent a.vi.4.a. Motion to consolidate specifications a.vi.4.b. Abatement order = a ruling that terminates the proceedings a.vi.5. BUT NOT order finding not guilty a.vii. Procedure a.vii.1. 72 hours of ruling a.vii.2. Written notice to MJ a.vii.3. Automatic stay a.vii.3.a. In contrast to writs – the case keeps going a.vii.4. Prepare ROT a.vii.5. Forward Appeal a.viii. Appellate Review a.viii.1. Action only w/ respect to matters of law a.viii.2. Factual Questions a.viii.2.a. Clearly erroneous or unsupported by the Record or a.viii.2.b. If incomplete or ambiguous a.viii.2.b.i. = remand for clarification or additional findings a.ix. US v. Daly (CAAF, 2011) a.ix.1. Trial judge dismissed the charges because he didn’t have fair notice a.ix.2. Government files 12 days later for reconsideration Judge denies it a.ix.3. Then less than 72 hours after reconsideration filed the Article 62

29 a.ix.4. So gov’t: NOTIFY RIGHT AWAY that they are doing an Article 62 appeal a.ix.5. Even if you missed the 72 hours, the appellate bench would still probably say that writs aren’t appropriate to use for the government

30 a.x. US v. Rittenhouse (ACCA, 2005) a.x.1. Granted interlocutory appeal of the MJ’s decision to suppress the statement a.x.2. Private uses computer and finds Rittenhouse’s child porn a.x.3. Motion to exclude his testimony – wrote a statement, and then answered questions a.x.3.a. They usually write a line that says end of statement, but then they move on to questioning a.x.3.b. The judge said that he was trying to say it was the end of his statement, and it was an unequivocal request for counsel a.x.3.b.i. Appellate bench said No, not going to place that duty on counsel a.x.4. Motion to exclude the evidence on his computer because they took the computer away instead of just searching it a.x.4.a. Signed a form, military judge said that it consented them to search but didn’t authorize anything to seize anything a.x.4.a.i. Appellate bench said that is like splitting hairs, not reasonable to expect them to be able to search everything b. Extraordinary Writs b.i. The All Writs Act, “The SC and all courts established by act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdiction and agreeable to the usages and principles of law.” b.i.1. Rejected the view that this gave the cts power to issue writs in not only cases in which they had appellate jurisdiction but also as conferring upon them jurisdiction to act in other cases in which a writ may be requested b.ii. US v. Denedo (2009) b.ii.1. Wanted to issue a coram nobis writ b.ii.2. Article I courts have jurisdiction to hear these writs b.iii. Writ Classifications b.iii.1. Mandamus b.iii.1.a. Directs party to take action b.iii.1.b. Pre-existing duty enforced b.iii.2. Prohibition b.iii.2.a. Directs party to cease action b.iii.2.b. Or prohibits planned act that violates it b.iii.3. Error Coram Nobis b.iii.3.a. Error in our court – a review of court’s own prior judgment based on error of fact or to correct constitutional error b.iii.4. Habeas Corpus – release a person in custody b.iv. Impact on the Trial b.iv.1. None (no automatic stay) b.iv.2. Continuance (RCM 906) – Trial MJ b.iv.3. Beware of the ordered stay – ACCA or CAAF

31 b.v. Does the Case Qualify? (3-Step Analysis) c. Determine jurisdiction c.i. Determine extraordinary circumstances c.i.1. This is what always gets the petition denied – you HAVE to be on fire c.i.2. Aren’t they going to be able to address this on appeal? c.i.3. Extremely heavy burden c.i.4. Issuing writs not favored, they disrupt orderly juridical process c.i.5. Right to relief must be clear & indisputable c.ii. Consider the relief requested

d. When Gov requests Article 62 appeal vs. Petition the Appellate Court for writ d.i. 62 appeals specifically applies to the government d.ii. A writ isn’t an appropriate measure for the government because 62 applies – if it did it would be mandamus d.ii.1. Has only seen one case where the court allowed the government to issue the court for a writ e. McKinney v. Jarvis (ACCA, 1997) e.i. Writ of prohibition – asked to disqualify COL who was the accuser and the appointing authority for the pretrial IO. e.ii. A (Special Court Martial – COL) CA who becomes an accuser by virture of preferring charges is not per se disqualified from appointing a pretrial IO

FINDINGS

1. PROVIDENCE INQUIRY FOR GUILTY PLEA a. Guilty Plea a.i. Military Judge hears providence inquiry (w/ stipulation of fact) a.ii. May have a pretrial agreement as to sentence a.iii. Panel or military judge alone for sentencing a.iv. Conditional Guilty Plea a.iv.1. Preserve issues usually waived a.v. Could be naked plea – no agreement b. Guilty Plea Providence Inquiry

32 b.i. Accused must admit guilt b.ii. No afford or nolo contender pleas b.iii. Source of process: U.S. v. Care b.iv. MJ explains offenses & ensures accused understands: b.iv.1. Rights waived – self incrimination, trial of facts, right of confrontation b.iv.2. Nature of the offense – Elements of offenses b.iv.3. Plea admits every element, act or omission, and intent b.iv.4. Conviction on plea alone – no other proof b.iv.5. Maximum sentence based on plea alone b.iv.6. Opportunity to consult w/ counsel b.iv.7. Make a finding that plea is knowingly & voluntary b.iv.8. Understands and agrees to pretrial agreement b.v. Inquiry into pretrial agreement b.v.1. Offer portion – terms & conditions b.v.2. Quantum Portion – Sentence cap c. US v. Care (CMR, 1969) c.i. Wants his guilty plea thrown out because he didn’t understand the elements of desertion – thus, a violation of due process c.ii. Ct found – that since he had been convicted on the same charge of desertion before he had to have known the elements of the charge c.iii. Procedures for guilty plea: c.iii.1. Plea will be received and will be treated as an interlocutory one c.iii.2. The ct may entertain such a plea only after the accused has had an opportunity to consult with the counsel he selects or the one appointed for him; and c.iii.3. The LO must explain the meaning and effect of a plea of guilty unless it otherwise affirmatively appears that the accused understands such meaning and effect c.iii.3.a. Explanation must include c.iii.3.a.i. That the plea admits every act or omission alleged and every element of the offense and authorizes conviction w/o further proof

33 c.iii.3.a.ii. That the max sentence may be adjudged; c.iii.3.a.iii. That unless the accused understands the explanation the plea will not be received c.iv. Can not be inconsistent with the charge! d. US v. England (ACCA) d.i. Charged with conspiracy d.ii. Attempted to plead guilty  but co-conspirator testified that it could be a lawful extraction d.iii. Guilty Plea Rejected e. Matters Inconsistent with the Guilty Plea e.i. Inability to recall facts is not inconsistent – as long as accused is convinced of the facts from reports e.ii. If defense raised MJ must resolve it e.iii. Matter inconsistent – can’t accept the plea e.iv. If plea not accepted MJ must enter a plea of NG e.v. If matter inconsistent raised during sentencing, MJ must reopen providence inquiry 2. JURY INSTRUCTIONS ON FINDINGS a. Jury presumed to listen to, understand, and follow the instructions b. RCM 920 lists required instructions b.i. Elements of LIO elements b.ii. Special defenses b.ii.1. Self Defense b.ii.2. Accident b.ii.3. Duress b.ii.4. Entrapment b.ii.5. Obedience of orders b.ii.6. Mistake of fact b.ii.7. Voluntary intox b.ii.8. Abandonment b.ii.9. Lack of MR b.iii. Direction that only matters before CM may be considered b.iv. Acc presumed innocent until guilt established b.v. If LIO an issue, reasonable doubt as to guilt finding must be to lower b.vi. Gov has BOP b.vii. Deliberation procedures c. MJ must also instruct if: c.i. Issue reasonably raised c.ii. Not adequately covered in other instructions c.iii. If counsel’s requested instruction accurately states the law concerning facts in the case

34 d. U.S. v. Upham, CAAF 2008 d.i. HIV – conduct unbecoming and aggravated assault d.i.1. Criminal Appeals – lesser included offense of assault consummated by battery d.ii. If its an instructional error you have to test for harmfulness, and you can always bust it down to the lesser included offense d.iii. Article 59(a): A finding or sentence of a CM may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused d.iv. Harmless test: (1) the element was uncontested, and (2) the element was supported by overwhelming evidence

e. FINDINGS WITH EXCEPTIONS AND SUBSTITUTIONS 3. FINDINGS WITH EXCEPTIONS AND SUBSTITUTIONS a. Findings Deliberation a.i. Free & full discussion of evidence presented a.ii. Then voting on findings by secret, written ballot – all must vote a.iii. 2/3ds present = guilty a.iv. Guilty of any spec = guilty of charge a.v. If guilty, vote on lack of mental responsibility – by c & c evidence (2/3ds) b. Findings by Exceptions and Substitutions – RCM 918 b.i. Can’t substantially change the nature of the offense b.ii. Or increase seriousness of offense b.iii. Or max punishment b.iv. U.S. v. Marshall, CAF 2009 b.iv.1. Charged w/ escape from custody of CPT K but guilty custody of SSG F b.iv.2. DC RCM 917 motion for finding of NG b.iv.3. G by excepts & subs b.iv.4. Fatal variance: material and acc substantial prejudiced by it b.iv.5. Charged the identity of the offense against which acc could defend & MJ gave no chance to defend against new charge 4. MILITARY JUDGE’S SPECIAL FINDINGS a. Panel cant do this b. Upon request of either party c. Use it on appeal – accused may be able to convince the appellate court that military judge erred d. U.S. v. Roderick, CAAF 2006 d.i. Child pornography charge, indecent acts on the body of the children d.ii. Issue: Did trial judge erred when he said that certain photos were sexually explicit d.iii. Not supported by legally sufficient evidence – set aside the military judge’s findings

MILITARY SENTENCING

35 1. THEORIES AND PURPOSES OF PUNISHMENT a. Sentencing Theories of Punishment a.i. Retribution: people are responsible for their bad acts. Punishment is the cost of wrongdoing a.ii. General deterrence: Punishing the wrongdoer discourages others from committing the same offense a.iii. Specific deterrence: punishing the wrongdoer will keep them from doing the bad act again a.iv. Rehabilitation: penal systems should focus on returning offenders to society – reeducate the offender morally, may seek to give the offender a career a.v. Protect society/Social retribution: lengthy incarceration to isolate the offender & protect society/ punish because of moral outrage a.vi. U.S. v. Varacelle (U.S. Ct. of Military Appeals, 1978) a.vi.1. May punish the accused in order for deterrence b. Military Sentencing Procedure b.i. TC Presents b.i.1. Acc’s personnel records b.i.1.a. Service data on the charge sheet b.i.1.b. Dependents, marital status, character of service, prior convictions b.i.2. Victim impact b.i.2.a. Financial b.ii. Accused sworn or unsworn statement b.iii. TC rebuttal b.iv. Sentencing arguments c. Military Sentencing c.i. Indeterminate (mil) v. Determinate (Fed) c.ii. Disparate Sentence c.ii.1. CA can approve, disapprove, or reduce any part of findings or sentence c.ii.2. CCAs can reassess the sentence if inappropriate c.iii. Not federal sentencing guidelines d. Punishments d.i. No punishment d.ii. Reprimand d.iii. Forfeiture of pay and allowances d.iv. Fine d.v. Reduction in rank d.vi. Confinement d.vii. Hard labor w/o confinement d.viii. Punitive Discharge (DD, BCD, Dismissal) d.ix. Cannot order restitution d.x. Cannot mandate treatment program of any time d.xi. Cannot suspend any part of the sentence d.xii. Cannot use special youthful offender programs d.xiii. UCMJ Article 56 grants President the authority to assign limitations on penalties for each offense

36 e. Jury Instructions on Sentencing e.i. Jury presumed to listen to, understand, and follow the instructions e.ii. RCM 1005 lists required instructions e.ii.1. Max punishment e.ii.2. Deliberation and voting procedures e.ii.3. Court must decide and not count on CA reducing the sentence e.ii.4. Must consider all matters presented in sentencing e.ii.5. Automatic reduction if 6 months conf or punitive discharge and confinement e.ii.6. Stigma of punitive discharge f. US v. Sales (CMA, 1986) f.i. Rehearing is unnecessary if reassment will suffice f.ii. Is the sentence appropriate? If they find prejudicial error, then they look at sentence to see if appropriate, and whether the sentence would have been different but for the prejudice f.iii. Appellate bench has right to reassess sentence 2. MATTERS IN AGGRAVATION a. Evidence of aggravation – RCM 1001(b)(4), may include: a.i. Impact on victim a.ii. Evidence of significant adverse impact on the mission, discipline, or efficiency of the command directly and immediately resulting from offense a.iii. Evidence that the accused selected V based on race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation 3. MITIGATION AND THE ACCUSED’S UNSWORN STATEMENT a. Matters in rebuttal and extenuation and mitigation – RCM 1001(c)(1) a.i. Extenuation – relates to the circumstances surrounding the accused’s commission of offense a.ii. Mitigation – may include evidence of: a.ii.1. Acts of good conduct or bravery a.ii.2. Evidence of the reputation or record of the accused in the service a.ii.3. Any other desirable trait b. Unsworn Statement – RCM 1001(c)(2)(C)- statement not under oath that the prosecution cannot cross-examine b.i. US v. Rosato (CMA, 1991) b.i.1. Can barely limit an accused’s unsworn statement b.i.2. BIG open door for unsworn statement – may be able to bring info in that you may not have been able to do otherwise 4. DEATH PENALTY IN THE MILITARY a. Military Death Penalty a.i. 12 members a.ii. Referred as a capital case a.iii. Gov must prove aggravating factor & inform defense of factor before trial a.iii.1. BRD an aggravating factor at RCM 1004 – such as: murder for money, or while robbery, rape, aggravated arson, burglary, kidnapping b. Loving v. US (1996)

37 b.i. Matthews in the military – said death penalty was cruel and unusual so have to adopt aggravating factors b.ii. Pres adopts these aggravating factors and these gates b.iii. Mitigating circumstances were substantially outweighed by any aggravating factors listed c. Death Penalty Gates c.i. Unanimous guilty of offense w/ death possible c.ii. Unanimous BRD on at least one but vote each aggravating factor before sentence c.iii. Weighing extenuating and mitigating circumstances substantially outweighed by aggravating factor c.iv. ALL of members present must vote for death c.v. President must approve

POST TRIAL REVIEW PROCEDURES

1. OVERVIEW OF POST-TRIAL PROCESS a. CHART ON PG. 117 OF PACKET TWO b. Unit is ready to transport ac to confinement c. TC preps results of trial and confinement order (slides) d. Acc may request deferred conf, red, or forf e. ROT completed, TC & DC review, MJ authenticates f. SJA signs Recommendations (SJAR) g. SJAR, authenticated ROT served on DC/acc h. Acc submits clemency petition & response to SJAR i. SJA signs addendum & served on DC if “new matter” j. CA considers DC/acc submissions, takes initial action k. Promulgating order signed l. ROT reproduced & mailed to CCA m. DAD & GAD process & appellate review n. Serve ROT on accused o. Serve SJA recommendation on accused for GCM or BCD-SPC when BCD was adjudged p. DC has opportunity to comment and provide clemency matters q. CA Action: approve, disapprove, or reduce any part of findings/sentence

r. STAFF JUDGE ADVOCATE REVIEW 2. STAFF JUDGE ADVOCATE REVIEW a. SJA Recommendations – RCM 1106

38 a.i. Before the CA takes action on a ROT by GCM or Spec CM resulting in a sentence that includes a BCD or confinement of forfeitures of 6 mo or more, the CA must receive a SJAR a.ii. Report of Results of Trial: Findings & sentence adjudged and confinement credit a.iii. Sentencing authority recommendations regarding clemency a.iv. Terms of pretrial agreement a.v. Any required corrective action due to legal error a.v.1. If legal error, RCM 1106(d) now grants the appellate ct the authority to take corrective action without returning the case to the CA 3. CLEMENCY MATTERS a. After trial, accused may submit mattes to the CA to consider prior to taking action b. For gen, and Spec CM, the defense must submit matters within the later of 10 days after the authenticated ROT is served on the accused, the JAR, or SJAR addendum with new matter is served on the accused. c. If accused w/in 10 day pd shows that he requires additional time, the CA’s SJA may for good cause extend the 10-day pd for not more than 20 additional days, but only the CA may deny an extension report c.i. For sum CM, the D must submit matters within 7 days of sentencing d. US v. Travis (CAAF, 2008) d.i. Demonstrates how important it is for the SJA to ensure that the CA consider all clemency matters prior to taking action on a case. d.ii. Attached electrodes to the detainee – attempted cruelty, dereliction of duty d.iii. SJA failed to submit clemency matters to the CA for over a year. d.iv. The same CA takes action twice on Dec. 4th and Dec. 2nd d.v. SJA recommends to withdraw action, gives him a new SJAR and this time they dump all the stuff in and they take the action d.vi. Ct: Based on record: couldn’t determine if it was error to not look at the matters the first time, but even if it was error it was harmless because they looked at the matter on the second action 4. CONVENING AUTHORITY ACTION a. A CA may be disqualified from taking action on a case if he was the accuser, has a personal interest in the case outcome, or has a personal bias toward the accused. b. May also be disqualified if he displays or exhibits an inelastic attitude toward his post- trial responsibilities c. CA’s action cannot increase the sentence d. Unlike the sentencing authority at trial, the CA may suspend a punishment or reduce a mandatory sentence adjudged. The action must conform to the terms of any valid pretrial agreement with the accused. e. US v. Davis (CAAF, 2003) e.i. Questioned CA’s impartiality e.ii. Made public comments saying that if people in his units were convicted of using drugs they shouldn’t come crying to him 5. POST-TRIAL PROCESSING TIME a. UCMJ Article 66(c) a.i. Service cts can ensure timelines by granting relief for PT delay by using this to review cases for sentence appropriateness a.ii. May grant relief if accused’s case is not expeditiously processed from sentence to action

39 b. US v. Tardif (CAAF, 2001) b.i. Prejudice is not required if post-trial delay is unreasonable and unexplainable b.ii. Complained only used 59(a) which requires prejudice b.ii.1. 59(a): can’t find error of law in finding or sentence unless error materially prejudices substantial right of the accused b.iii. Should have also used 66(c) b.iv. Crawford’s Dissent: Says that this is outside the record, and 66 only lets you look at record c. US v. Moreno (CAAF, 2006) c.i. Presumption of unreasonable delay for cases that did not have trial initial action within 120 days of trial completion, were not docketed within 30 days of the CA’s action or Service court of appeals did not review the case within 18 months of docketing c.ii. Once presumption is met, Service Courts must balance the length of delay against the reason for delay, appellants assertion of his right to timely review and appeal, and prejudice to the appellant c.iii. Take Barker’s pre-trial factors and apply them to the post-trial process c.iv. DAD had asked for extensions – because he has too many cases – the Government was at fault for this d. US v. Harrow (CAAF, 2007) d.i. Shaken baby case d.ii. If you miss these deadlines there is a presumption of unreasonable delay d.iii. Need not engage in a separate analysis of each factor where we can assume error and proceed directly to the conclusion that any error was harmless beyond a reasonable doubt. e. US v. Allende (CAAF, 2008) e.i. 7 year delay e.ii. Whether any error was harmless beyond a reasonable doubt e.iii. Assets prejudice on his inability to obtain employment because he cant show a Form 214 e.iv. Did not provide documentation from any of his employers e.v. SOOO takeaway -- very hard to get post-trial delay

APPELLATE REVIEW PROCESS

1. REVIEW BY THE JAG a. UCMJ 69(a) grants JAG authority to review GCM cases with approved sentences that do not include a dismissal, DD, or BCD, or confinement ofr a year or more b. The JAG also reviews cases where pursuant to RCM 1112, a JA has determined that as a matter of the GCMCA should take corrective action, but the GCMCA does not take action at least as favorable to the accused as the JA recommended. c. After final review if the case has not been reviewed by the SC of CA or the HAG, the JAG may decide to review a case or an accused may petition the JAG for review on the grounds of newly discovered evidence, fraud on the ct, lack of jurisdiction, an error prejudicial to the subst rights of the accused, or sentence appropriates 40 2. APPEAL TO THE SERVICE COURTS OF CRIMINAL APPEALS a. The SCCA (previously the CMR) each have jurisdiction to automatically review cases with approved sentence which include death, a punitive discharge or confinement for a year or more, unless the accused waives appellate review or withdraws his case from review b. Each Service JAG must appoint at least three military appellate judges including one chief judge to serve on the appellate ct consisting of oe or more panels of here judges c. The judges may be commissioned officers or civilians who are members of a Fed Ct or state bar d. May review for legal error and factual sufficiency legal (record includes sufficient evidence to support finding of guilty) d.i. Contrast to Civilian Cts d.ii. Scope of Review 66(c) d.ii.1. Legal and factual sufficiency d.ii.2. Sentence appropriateness d.ii.3. Grant appropriate relief 3. THE U.S. COURT OF APPEALS FOR THE ARMED FORCES REVIEW AND SUPREME COURT a. Article 67 a.i. Approved death sentence a.ii. CCA cases that TJAG certifies to CAAF a.iii. Acc petitions CAAF and shows good cause after CCA reviews a.iv. Extraordinary writs b. Scope of review b.i. No factual sufficiency b.ii. No sentence appropriateness c. 5 civilian judges d. May be reviewed by the SCT, but the SCOTUS cannot review by writ of certiorari the CAAF’s denial of an accused’s petition for review e. Clinton v. Goldsmith (1999) e.i. After sentencing, Congress passed law that allowed Pres to drop from rolls an officer who has been sentenced to at least 6 months confinement and served that much e.ii. The CAAF’s process was neither “in aid of” its strictly circumscribed jurisdiction to review CM findings and sentences under 10 USC 887 nor “necessary or appropriate” in light of a service member’s alternative opportunities to seek relief e.iii. The CAAF lacked jurisdiction to issue an injunction e.iv. Should have brought claim to the Air Force Board of Correction for Military Records or federal trial courts 4. PAROLE, PARDONS, CORRECTIONS OF MILITARY RECORDS a. Corrections a.i. Military Corrections – 3 Objectives

41 a.i.1. Safe and secure environment for offenders a.i.2. Protect community from offenders a.i.3. Prepare priosners for release either to duty or civilian status a.ii. Facilities a.ii.1. Confinement facilities (90 days) a.ii.2. Regional corrections facilities (5 yrs or less) a.ii.3. US Disciplinary Barracks a.ii.4. May transfer to Federal Bureau of Prisons facilities a.iii. Good Conduct Time (GCT) a.iii.1. Sentenced before 2005, less than 1 yr = 5 days per month to 10 years or more 10 days per month – no credit for life or death sentences a.iii.2. Sentenced after 2005, 5 days per month a.iv. Earned abatement credit a.iv.1. Deducted from release date – earned for participation and graded effort in work, rehab progs related to offense, education, self improvement and personal growth, support activities, extraordinary achievements a.iv.2. Max of 8 days awarded per month a.v. Together can’t exceed 15 days per month a.vi. If violate rules forfeiture and restoration of abatements a.vii. If violate rules forfeiture & restoration of abatements a.viii. Mandatory Supervised release a.viii.1. Prisoners not granted parole prior to Minimum Release Date can be ordered a.viii.2. All cases except where Clemency & Parole Boards say would be inappropriate a.viii.3. Terms and Conditions in release plan b. US v. Pena (CAAF, 2007)

42 c. US v. Pena (CAAF, 2007) c.i. Said that the restraints were to troublesome c.ii. List of things he cant do – focuses on how he cant afford it c.iii. No choice in the matter, otherwise charged with violation of lawful order c.iv. Jurisdiction c.iv.1. Says it was OK c.iv.2. They have the authority to look at sentencing c.v. Punishment c.v.1. Is not cruel and unusual c.v.2. Was on notice that this program was there c.v.3. Not an increase in his punishment – ends on the same date that he would have gotten out anyways c.v.4. In order to win on that – has to show actual bills c.vi. Difference in civilian c.vi.1. It is included in their sentence in the fed cts d. Service Clemency and Parole Boards d.i. Compositions d.i.1. Senior civil employees and field grade officers d.ii. Paroles – must have at least yr confinement and punitive discharge d.iii. 1 yr to 20 yr sentence cases reviewed 9 months after confined, then annually d.iv. May waive consideration d.v. If sentence is 12 months – 20 years, 1/3 sentence; 30 yrs to life, 10 yrs of parole time, life 20 yrs of parole time

SUBSTANTIVE MILITARY CRIMINAL LAW

MILITARY CRIMES IN GENERAL

1. OVERVIEW OF PUNITIVE ARTICLES a. Articles 77-134 a.i. Substantive criminal offenses a.ii. Some criminalize conduct particularly important to the military a.iii. Includes elements of the offense  Pros must prove beyond a RD 2. ARTICLE 134, THE GENERAL ARTICLE AND FEDERAL ASSIMILATIVE CRIMES ACT a. Article 134 – Terminal Elements (3 bases for Criminal Liability) a.i. Conduct prejudicial to good order and discipline a.i.1. Directly and palpably prejudicial a.i.2. Type of evidence  Bring on people who are in his unit a.ii. Conduct of a nature to bring discredit upon the armed forces a.ii.1. Must have a tendency to bring the Service into disrepute or tend to lower public esteem a.ii.2. Must be open and notorious a.ii.3. Type of evidence  bring on non-military

43 a.iii. Federal Assimilative Crimes Act – 18 USC Sec. 13 a.iii.1. Violations of Fed statutes or state statutes on areas of exclusive (fed) or concurrent (fed and state) jurisdiction – all are federal offenses not state violations a.iii.2. Preemption – cannot have an existing UCMJ article a.iii.3. Adoption by Congress of state crim laws for areas of exclusive or concurrent fed jurisdiction, provided fed criminal law, including the UCMJ, has not defined an applicable offense for the misconduct b. Also contains a bunch of LISTED offense – those are the ones that the President made up b.i. If it doesn’t exist in the list, or in the enumerated articles, if it meets the terminal elements it could still be charged c. US v. Fosler (CAAF, 2011) c.i. Was a listed 134 offense – adultery c.ii. But didn’t state the TERMINAL element – one of them was supposed to be proven c.iii. Not ok that it was in the back end, the judge did include the terminal element – but on the front-end there was no notice c.iv. Huge issue – many times the terminal element is not included d. US v. Simmons (NMCCA, 20110) d.i. Again, failed to specify the terminal element – BUT ct comes out differently d.ii. How does court distinguish Simmons from Fosler d.ii.1. Fosler was a contested case, here Simmons plead guilty d.ii.2. Fosler – D counselor waived notice d.ii.3. Here, a little bit more notice here – Judge had used the terminal element in advising him e. US v. Robbins (CAAF, 1999) e.i. Whether an OH crim statute may be properly assimilated to fill a void in the law or whether the existing UCMJ enumerated offense preempts such assimilation e.ii. When comparing statutes e.ii.1. Look at congressional intent – did they intend to include the fetus e.ii.2. Look at OH legislative history – it created a whole new offense which had an element which wasn’t present e.ii.2.a. The element is clearly something different e.ii.2.b. Wasn’t just enlarging or redefining an offense already proscribed 3. MILITARY OFFENSES: a. Disobeying Orders (Article 92) a.i. (1) Violating or failure to obey a lawful general order or regulation a.i.1. acc had a duty to obey a.i.2. acc violated the order

a.i.3. US v. Leverette (ACMR, 1980)

44 a.i.3.a. Visiting base, came on with a weapon that wasn’t registered; He says he didn’t have knowledge of the order a.i.3.b. Irrelevant if you know, it was a general order, and this is a strict liability offense a.ii. (2) Violating other written order or regulation a.ii.1. order or regulation a.ii.2. acc knew of the order or regulation a.ii.3. acc failed to obey a.ii.4. US v. Warren (CMA, 1982) a.ii.4.a. “Settle down and be quiet” a.ii.4.b. Has to be directed to the person, has to be clear – found that it failed to give the accused adequate notice

a.ii.5. (3) Dereliction of duty a.iii. (3) Dereliction of duty a.iii.1. accused had a duty a.iii.2. Willful (intentionally) [accused knew of duty] OR a.iii.3. negligent (person under a duty to use due care which reasonably prudent person would have used) [acc knew or reasonably should have known of the duty] OR a.iii.4. culpable inefficiency (inefficiency with no reasonable or just excuse, reckless, gross, deliberate disregard for the foreseeable results) [acc knew or reasonably should have known of the duty] a.iii.5. acc was derelict in performance of duty a.iii.6. BUT cannot be charged because of ineptitude b. Cruelty and Maltreatment (Article 93) b.i. Victim was subject to orders of acc b.ii. Acc was cruel towards or oppreseed or maltreated the victim by [allege the act(s)] b.ii.1. Objective standard – acc could have reasonably caused physical or mental harm or suffering – no requirement of actual harm b.iii. U.S. v. Harman (CAAF, 2008) b.iii.1. Dereliction of duty charge – b.iii.1.a. Didn’t think she had a duty to keep the detainees in safekeeping b.iii.1.b. Charged with WILLFUL dereliction of duties b.iii.2. Maltreatment of Subordinates b.iii.2.a. Letter b.iii.2.b. Don’t have to prove that the victim ACTUALLY caused harm or suffering, just that they reasonably could have c. Disrespect (Article 89) c.i. “Any person subject to this chapter who behaves with disrespect toward his superior commissioned officer shall be punished as a CM may direct

45 c.i.1. Behavior or language was directed at that officer c.i.2. Act or language directed at acc’s superior commissioned officer c.i.3. Acc knew that person was superior commissioned officer c.i.4. Divestiture – V can divest himself/her of their status c.i.5. Must be in superior in rank or command c.i.6. Directed toward and within the sight of c.i.7. Superior officer need not be present c.i.8. Superior officer need not be in the execution of his office d. Assaulting/Willfully Disobeying (Article 90) d.i. Any person subject to this chapter who – d.i.1. (1) strikes his superior commissioned officer or draws or lifts up any weapon or offers any violence against him while he is in the execution of his office; or d.i.2. (2) willfuly disobeys a lawful command of his superior commissioned officer, shall be punished, if the offense is committed in time of war, by death or such other punishment as a CM may direct, if the offense is committed at any other time, by such punishment, other than death. d.i.2.a. Like Article 92, the person giving the order must have the authority to do so d.i.2.b. CANNOT be a direction to perform an existing duty d.ii. US v. Traxler (CMA, 1994) d.ii.1. Whether one can be charged with disobeying a lawful order, when the underlying offense of missing movement was also charged d.ii.2. The two findings are not multiplicious – require different elements to be proven d.ii.3. Wasn’t exactly a pre-existing duty, order was not routine in nature – but was a specific mandate to perform a particular act at a definite time and place d.ii.3.a. Also was not formulated for the purpose of enhancing the punitive consequences of a possible violation e. Insubordination (Article 91) (Insub conduct toward WO, NCO, or PO) e.i. Striking e.i.1. While the officer is in execution of his office e.ii. Willfully disobeying e.ii.1. Order must be related to military duty and directed at acc e.ii.2. Order to do a specific act e.iii. Treating with disrespect e.iii.1. While that officer is in the execution of his office e.iv. Unlike disrespect under Article 89, the victim of the disrespect must be within sight or hearing of the conduct, and the victim must be in the execution of his office 4. ABSENCE RELATED OFFENSES – CHART PG. 48 OF PACKET III a. Desertion (Article 85)

46 a.i. More egregious than AWOL a.ii. TWO COMMON TYPES a.iii. Desertion with intent to permanently remain away a.iii.1. Absent from unit a.iii.2. Intent to remain away permanently a.iii.3. Aggravating factors: terminated by apprehension or time of war a.iii.4. U.S. v. Mackey, NCMR 1972 – gone for 26 months – pretty clear that he wasn’t coming back, terminated by apprehension is an aggravating factor a.iv. Desertion to avoid hazardous duty a.iv.1. Quitting the unit a.iv.2. Intent to avoid certain duty or important service a.iv.3. Duty was hazardous or important service a.iv.4. Acc knew he would be required for that duty/svc a.iv.5. Acc remained absent until date alleged a.iv.6. Aggravating factors: time of war b. AWOL (Article 86) b.i. (1) Failure to go to appointed place of duty (failure to repair) b.i.1. actual knowledge of requirement to be present b.i.2. aggravating: from guard or watch b.ii. (2) Going from appointed place of duty b.ii.1. actual knowledge of requirement to be present b.ii.2. aggravating: from guard or watch b.iii. (3) absence from unit b.iii.1. any fault of accused b.iii.2. aggravating: apprehended; from guard or watch; intent to avoid field exercises b.iv. US v. Rogers (ACCA, 2003) b.iv.1. Remained in the area, and was sometimes on post b.iv.2. Return to unit does not terminate an AWOL if the return involves a casual presence for personal reasons b.v. Four Part test to voluntarily terminate an AWOL: b.v.1. Present him or herself with the intent to return to military duty b.v.2. Make this presentment known to a military authority b.v.3. Identify him or herself to the military authority and disclose his or her AWOL status b.v.4. Submit to the actual or constructive control exercised over the absentee by the authority to whom he or she has made the necessary disclosure c. Missing Movement (Article 87)

47 c.i. (1) That the accused was required in the course of duty to move with a ship, aircraft or unit; c.ii. (2) That the accused knew of the prospective movement of the ship, aircraft or unity; c.iii. (3) That the accused missed the movement of the ship, aircraft, or unity; and c.iv. (4) That the accused missed the movement through design or neglect c.v. Missing movement by neglect c.v.1. (1) missing unit movement for sig distance and period of time c.v.1.a. actual knowledge of movement c.v.1.b. negligent – failure to exercise reasonable care c.vi. Missing movement by design c.vi.1. (2) missing unit movement for sig distance and period of time by design c.vi.1.a. actual knowledge of movement c.vii. intentional d. Malingering (Article 115) d.i. Feigning d.ii. Intentional injury d.iii. Elements d.iii.1. Acc knew of assignment to perform work, duty AND acc feigned illness, physical disablement, mental lapse, mental derangement OR d.iii.2. Acc intentionally inflicted injury upon himself AND d.iii.3. Acc did so with purpose or intent to avoid work, duty, service d.iii.4. AND IF Applicable – time of war, hostile fire pay zone 5. CONTEMPT TOWARDS OFFICIALS (ARTICLE 88) a. Acc was a U.S. Armed Forces commissioned offer b. Acc used contemptuous behavior or words against an official b.i. Insulting, rude, disdainful or disrespectful in themselves or under the circumstances b.ii. Official = President, VP, Sec of Dept, OR Gov, Leg of State or Territory AND accused was in the territory c. Words or acts came to the knowledge of a person other than the accused c.i. Used orally and publicly or caused to be published of a person other than the accused c.ii. No cases/Few cases since 1950 d. Sanford v. Callan (5th Cir. 1945) d.i. Called the President a dirty politican d.ii. Claimed that he was not subject to the code because he wasn’t there for the oath d.ii.1. Court doesn’t believe this argument 6. CONDUCT UNBECOMING OF AN OFFICER AND A GENTLEMAN (ARTICLE 133) a. Acc did or omitted to do certain acts such as a.i. Making a false official statement a.ii. Dishonorable failure to pay a debt a.iii. Cheating on an exam a.iv. Opening and reading a letter of another w/0 authority

48 a.v. Using insulting or defamatory lang to another officer in that officer’s presence or to other military b. Under the circumstances constituted conduct unbecoming an officer & gentleman b.i. Male and female commissioned officers, cadets, midshipman c. Parker v. Levy (1974) c.i. Dr., doesn’t show up to the clinic c.ii. Makes several statements to people at the post, talking bad about the Vietnam War c.iii. Statute isn’t void for vagueness c.iv. This is the case that calls the military a “special society” d. Can you charge both offense and a 133? d.i. YES d.ii. Can also charge under a punitive regulation 7. FRATERNIZATION a. Acc was a commissioned or warrant officer b. Fraternized or terms of military equliaty with enlisted c. Acc knew the person was enlisted d. The frat violated customs of the Service e. Under the circumstances, conduct was prejudice to good order & discipline or nature to bring discredit on the Armed Forces f. Art 134, frat has been used successfully for officer-officer frat and enlisted-enlisted frat 8. IMPROPER SUPERIOR/SUBORDINATE RELATIONSHIP (92(1) PUNITIVE REGULATIONS) a. Army 600-20, but all Services now consistent – DOD study identified inconstancy and DoD 1998 new policy b. Prohibited relationships b.i. Relationships btw soldiers of different ranks b.i.1. Compromise or appear to compromise supervisory authority of chain of command b.i.2. Cause actual or perceived partiality or unfairness b.i.3. Involve or appear to involve improper use of rank or position for personal gain b.i.4. Are or are perceived to be exploitative or coercive b.i.5. Cause an actual or clearly predictable adverse impact on discipline, authority, morale or ability to cmd to accomplish its mission b.ii. Officer and enlisted such as b.ii.1. Ongoing business relationship, not landlord/tenant or one time b.ii.2. Personal relationships – dating, sharing housing b.ii.3. Gambling – NO exception – officers and enlisted cannot gamble together b.iii. Trainee and permanent party solider regardless of unit assignments b.iv. Recruiter and recruit regardless of unit assignments 9. ADULTERY a. Factors to consider for prejudicial or service discrediting a.i. Accs marital status, rank, grade, or position a.ii. Co-actor’s marital status, rank, grade, or position or relationship to the AF a.iii. Their spouses relationship to the AF

49 a.iv. Impact of relationship of parties to perform their duties in the AF a.v. Misuse of gov time and resources to facilitate conduct a.vi. Whether conduct persisted despite counseling or orders to desist; flagrancy of their conduct; whether other UCMJ violations a.vii. Negative impact on the units a.viii. Was either party legally separated a.ix. Ongoing or recent relationship or is remote in time b. US v. Orellana (NMCCA, 2005) b.i. Uses Markum 3-Part test (see below) to analyze adultery b.ii. Had sex with a 19 yr old and 14 yr old b.iii. Plead guilty – but accused said that conviction of adultery is unconst. b/c of rights to privacy b.iv. Factors to argue if gov: b.iv.1. Sex with someone else related to the service b.v. Uses rational basis and says the gov has legitimate interest 10. CONSENSUAL SODOMY a. Federal (Civilian) Contest a.i. Lawrence v. Texas (2003) a.i.1. Overruled TX law criminalizing consensual homosexual sodomy a.i.2. Right to liberty/Privacy under Due Process a.ii. Standard of Review: 3 Tier Analysis a.ii.1. Strict Scrutiny: Compelling gov interest, least restrictive means a.ii.1.a. Fundamental rights infringed, race, nat’l origin a.ii.1.b. Intermediate Scrutiny: important gov interest, statute is substantially related to achieving the gov objective a.ii.1.b.i. Gender based a.ii.1.c. Minimum Scruitny: Legitimate gov interest statute is rationally related to the interest b. Article 125, Sodomy

50 b.i. Acc engaged in unnatural carnal copulation with person or animal b.i.1. Oral or anal b.i.2. Some penetration however required b.ii. And if applicable: b.ii.1. With child under 12 b.ii.2. With child 12 to under 16 b.ii.3. Done by force w/o consent c. Military Cases Post-Lawrence c.i. US v. Marcum (CAAF, 2004) c.i.1. Charged with both forcible and nonforcible sodomy c.i.2. Consensual private sodomy between adults c.i.3. Not protected liberty interest – c.i.3.a. Acc was supervising NCO c.i.3.b. Knew behavior prohibited by Service reg c.i.4. 3-Part Test in challenging Sodomy under Lawrence c.i.4.a. is acc’s conduct w/in liberty interest identified in Lawrence c.i.4.b. does conduct encompass behavior or factors identified as outside Lawrence c.i.4.b.i. public acts, prostitution, minors, persons who might be injured or coerced or might no easily refuse c.i.4.c. any other factors relevant solely in military that affect the reach of the Lawrence liberty interest c.ii. US v. Stirewalt (CAAF, 2004) c.ii.1. No-forcible sodomy c.ii.2. Not protected liberty interest – c.ii.2.a. Violated Service regs prohibiting improper relationships bw different ranks c.ii.2.b. Conduct outside liberty interest recognized in Lawrence

MILITARY DEFENSES

1. DEFENSES (IN GENERAL) a. General Intent vs. Specific Intent Crimes a.i. General Intent a.i.1. Art 93 – Cruely or Maltreatment of Subordiantes a.i.1.a. Victim was subject to orders of acc a.i.1.b. Acc was cruel towards or oppressed or maltreated the victim by [allege act(s)] a.ii. Specific Intent

51 a.ii.1. 92(3) Dereliction of Duty a.ii.1.a. acc had a duty a.ii.1.b. Intentionally (knew of the duty) was derelict in the performance of that duty a.ii.2. 85 - Desertion a.ii.2.a. absent from unit a.ii.2.b. with intent to permanently remain away b. Affirmative (Special) Defenses b.i. Composed of elements b.ii. Enlarge prosecution burden – once raised by credible evidence gov must disprove BRD b.ii.1. Except for mental responsibility b.ii.2. Justification b.ii.3. Self Defense b.ii.4. Accident b.ii.5. Entrapment b.ii.6. Coercion or duress – acc has reasonably grounded fear that he would be immediately killed or would immediately suffer serious bodiiliy injury if he did not commit the act – NO NECESSITY defense in the military b.ii.7. Inability b.ii.8. Ignorance or mistake of fact b.ii.9. Obedience to orders c. Partial Defenses c.i. Factual assertions that negate mens rea element c.ii. Do not add to prosecution burden c.ii.1. Only attack specific intent crimes c.ii.2. Voluntary intoxication c.ii.3. Partial mental responsibility – only evidence of mental condition to negate mens rea d. Procedural Defenses d.i. Doesn’t deal with the merits of the case d.ii. Usually prevent trial d.ii.1. Mental incapacity at trial d.ii.2. Speedy trial d.ii.3. Statute of limitations d.ii.4. Former Jeopardy d.ii.5. Immunity e. Other Defenses e.i. Deny accused committed the charged offense e.i.1. Mistaken Identify e.i.2. Alibi e.i.3. Good Soldier (Character Evidence)

f. SUPERIOR ORDERS – AFFIRMATIVE DEFENSE

52 2. SUPERIOR ORDERS – AFFIRMATIVE DEFENSE a. Some evidence to show acc committed the illegal act in obedience to an order b. Accused did not know the act was illegal c. AND d. A person of ordinary sense and understanding would not know the act ordered was illegal e. US v. Calley (ACMR, 1973) e.i. Vietnam Case e.ii. Problem with the D – wasn’t clear that he even got the order e.iii. Status of the victims – children e.iv. A person of ordinary understanding WOULD understand that this ordered act was illegal 3. NECESSITY AND DURESS a. Necessity is not recognized in the military (“lesser of two evils”) b. BUT Duress is recognized b.i. When an accused participates in an offense (except killing an innocent person) due to “a reasonable apprehension that [he] or another innocent person would be immediately killed or would immediately suffer serious bodily harm” RCM 916(h) b.ii. Not available when an accused disobeys a valid military order to perform a dangerous military duty 4. MENTAL RESPONSIBILITY a. Competency to stand trial (RCM 909): present ability of the accd to stand trial. Acc cannot be tried unless mentally competent (Acc burden = prep of evidence) a.i. Motion for Appropriate Relief a.ii. RCM 706 inquiry into Mental Capacity or Mental Responsibility of the Accused a.iii. Full Board report to DC, report to court or CA: a.iv. What is the nature and potential duration of the mental condition a.iv.1. Suspend proceedings b. Mental Responsibility (RCM 916): criminal culpability of the accd based on his mental state at the time of the offense and includes a complete defense (insanity defense – acc burden = clear and convincing, keeps burden) or limited defense (partial mental responsibility) b.i. Partial Mental Responsibility b.i.1. Mental Condition not amounting to lack of MR is not an affirmative defense (RCM 916(k)(2) c. Sanity Board (RCM 706): Board inquires into the mental capacity or mental responsibility of the accused d. Competency to cooperate in appellate proceedings – (RCM 1203) accused has the burden of the Pre of E that Acc has mental disease or defect and can’t understand or cooperate in appellate proceedings e. US v. Estes (ACCA, 2005) e.i. Addicted to cannibis e.ii. Came back and testified, talked about God e.iii. If question arises regarding the MR of an acc, the MJ must either order a RCM 706 inquiry into the MC or MR of the acc, or satisfy himself that the defense team has fully evaluated the possibility of the affirmative defense e.iii.1. Nothing about talking about God would mean insane 5. GOOD SOLDIER DEFENSE

53 a. MRE 404(a)(1) – evidence of good military character “when that specific trait is pertinent” b. “pertinent” if there is a nexus no matter how slight c. If good soldier defense, gov may rebut with bad character evidence d. U.S. v. Clemons (CMA 1983) d.i. Going to allow it in in the military e. U.S. v. Belz (CMA 1985) e.i. Actions unbecoming (drug-related) e.ii. Good conduct directly correlates to unbecoming e.iii. Remember to still look if they were prejudiced by the exclusion

RELATIONSHIP BETWEEN CIVILIAN COURTS AND MILITARY COURTS

1. COURT-MARTIAL OF CIVILIANS ACCOMPANYING THE FORCE a. 2000: MEJA a.i. Federal jurisdiction a.ii. “employed by the Armed Forces outside the US” a.iii. contractors, sub k – not nationals of the host nation b. 2006: UCMJ, Article 2(a)(10) b.i. war or contingency opns b.ii. persons serving w/ or accompanying armed forces in the field [DoD contractors] b.iii. are subject to the UCMJ b.iv. STILL doesn’t cover the State Department c. Cases c.i. Averette (CMA 1970) c.i.1. UCMJ, Article 2(10) (old article II) c.i.2. “In the time of war” = war declared c.ii. Ali (ACCA, 2011) c.ii.1. Civilian (Iraqi & Canadian) contractor – court martialed c.ii.2. No MEJA jurisdiction c.ii.3. UCMJ, Article 2(a)(11): contingency opns; serving w/ or accompanying; in the field 2. TRIAL OF SERVICE MEMBERS IN STATES AND FEDERAL COURT a. No double jeopardy for state and fed presecution b. Agreement between DoJ & DoD = DoD has primary jurisdiction b.i. MacDonald (SCt. 1982) – Speedy Trial c. Recalled & tried c.i. Green 6th Circuit – MEJA – acts while on active duty 3. STATUS OF FORCES AGREEMENT IN FOREIGN COUNTRIES a. Jurisdiction in the agreement b. Murphy – CAAF, 1998 b.i. Drowned wife & child in tub b.ii. Don’t get to pick who tries you, SOFA agreement allowed US jurisdiction

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