Military Justice Outline 2012 (Schenk)
Military Terms
· Accuser-the signer of the charge sheet. Both the accuser and the accused must be subject to the UCMJ
· Convening Authority (CA)-commander by virtue of rank & position that refers the charges to court-martial. Can prefer the charges to the next level for consideration, dismiss the charges, administer administrative corrective action (NJP/Art. 15), or order an Art. 32 hearing
· Article 32-Investigatory hearing that is always before a general court martial is called
· General Court Martial (GCM)-O-6 or higher, wing commander; General Court Martial Authority. Criminal adversarial trial with a military judge and counsel. Sentencing can include anything up to the death penalty
· Special Court Martial (SPCM)-O-6 or higher, group commander; Special Court Martial Authority and can appoint an Article 32 Investigative Officer. Criminal adversarial trial with a judge and counsel on both sides. Max penalties include bad-conduct discharge, one year of confinement, and forfeiture of 2/3 pay and benefits for one year
· Summary Court Martial (SCM)-O-5 or higher, squadron commander; Summary Court Martial Authority. Single officer hears the evidence (not a judge) and there is not counsel required, and guilt is not a federal conviction. Punishment is severely restricted
· Flight Commander-not a convening authority but can issue Article 15 NJP
· Bad Conduct Discharge Special Court Martial (BCDSPCM), but be specific about the bad conduct part of the special court martial or panel cannot issue a bad conduct discharge
· Panel-the military jury; for enlisted, it can be requested to be 2/3 enlisted panel. For non-death penalty the conviction only requires 2/3 majority
Military Justice System
· The Constitution
o Art. I, § 8, cl. 14: Congress has powers to “make Rules for the Gov’t and regulation of the land and naval forces”
o Art. II, § 2, cl. 1: POTUS is CINC of the Army and Navy of the US, and the of the militia of the several states, when called into the actual service of the US (federalizing the national guard)
o Not all Bill of Rights are applicable to military (no right to a grand jury, but an Art. 32 hearing is similar to grand jury, but only required for a GCM)
· UCMJ created from the National Security Act of 1947; Art 36 instructed POTUS to promulgate rules of evidence/procedure/punishment
o DoD and Joint Service committees update the rules
o Manual for Courts Martial-executive orders, rules of evidence and procedure, discussion of rules
· Military Justice Court System
o Trial within Service, appeal to the service appellate court (only Coast Guard has civilians), US court of Appeals for the Armed Forces, US Supreme Court
Alternatives to a Court Martial
· Administrative Corrective Measures
o RCM 306(c)(2)-Letters of admonishment, reprimand, counseling, disapproval, exhortations. Normally for neglect, laziness, immaturity, discipline, uniform issues.
· Non-judicial Punishment (Art. 15/Captain’s Mast), Pt 5 of MCM
o Violations of the UCMJ
o Reduce rank, withhold pay, extra duties, revoke pass/liberty/leave, correctional custody (confine to barracks), confinement on bread and water (while on a ship), arrest in quarters
o Minor offenses only, evidence and witnesses presented to the CC and the accused can challenge and go for a court martial with counsel representation
o NJP cannot be used against a person in a CM, but it isn’t at trial so double jeopardy isn’t attached
§ Sentencing must include credit for any NJP issued for the crime
· Administrative Separation
o In addition to or instead of a court martial
o Honorable, general under honorable, or other than honorable conditions
o Can be contested by the Δ, both type and the separation itself under the 5th Amend. due process requirements
o Requires a preponderance of the evidence to separate
o Enlisted-board only required for those with six or more years of service
§ 3 Officers and an E-7 may be appointed, JAG assists
§ Δ may get a lawyer and call his own witnesses
o Officers-Board of Inquiry
§ Three officers, recommendation to the service secretary
o Board-CC-Service Secretary-Court of Federal Claims-Us Court of Appeals for Federal Claims-SCOTUS
Clifford v. US / Retained civilian counsel for administrative separation board. Kept delaying, board would delay no longer. Did not present evidence before or during the board. Could have had military counsel to assist. Fed. Ct. Claims dismissed because he had opportunity to have counsel, present evidence and chose not to.Summary Court Martial
· Swift dispensing of justice that is greater than an Art. 15, but less formal/heavy than a SPCM
· One officer, has a JAG for administrative advice
o May only try enlisted members on noncapital trials. May issue up to 45 day confinement and may reduce ranks from E-4 through E-1.
· No defense counsel is required, but may be obtained; may refuse trial by Summary Court Martial and request a SPCM or GCM
Middendorf v. Henry / Class action suit by Marines for not receiving counsel for their summary courts martial. Though there can be a loss of liberty interest there is protection for the accused in the process through the officer in charge of the trial. Can cross-examine witnesses, obtain private counsel, and explain his actions. Special CM comes with the possibility of less punishment than a SPCM or GCM; it’s a trade off for the Δ.Judge Advocate Responsibility & Advocacy Standards (6th Amend. Right to Counsel)
· CC Counsel are not bound by attorney-client privilege because the client is the US government/taxpayer
· Defense Counsel are bound by attorney-client privilege
· Trial counsel cannot ask, on cross-examination: are the witnesses truthful, unnecessarily intimidate, humiliate, and always conduct interviews with another person present.
US v. Steele / Civilian counsel, chosen by the Δ, was not active in any bar in the US (dues had lapsed for the states he was barred in). Appealed under ineffective counsel, Strickland test.Strickland:
1) Are the accused allegations true
a) Reasonable explanation for attorney’s actions
b) Whether counsel’s advocacy falls below a lawyer’s fallibility
2) Is there a reasonable probability that, but for the defense counsel’s unprofessional errors the trial would have been different?
US v. Quintanilla / Shot his CO and killed his XO and convicted of unpremeditated murder. Trial counsel misconduct: Ex parte communication with Art. 32 IO, released statements to the media, kept evidence after court martial (evidence has to stay in custody through all appeals), closing argument was highly objectionable (yelling, sitting in the witness stand, testifying for the dead victim). Dismissal of all charges and new court martial
US v. Baker / Attempted larceny, absence from place of duty. The military Δ lawyers had ex parte meeting with judge, wanted to leave the trial but wouldn’t say why (attorney-client privilege). Tried to dissuade the Δ from testifying, because lawyers suspected it would be perjured testimony. In a possible perjury lawyers must:
1) Review the facts w/ Δ
2) Tell of perjury requirements to the Δ
3) Remind Δ of the obligation of truth
4) Inform Δ of criminal sanctions
US v. Cain / Judge led court martial for indecent assault with a plea agreement. Δ was a represented by a Major and a Captain, and was sleeping with the Major (Δ was Enlisted). Major them committed suicide. Relationship with your lawyer, violation of military lawyer ethics and ABA ethics, because there is no longer an unbiased opinion.
US v. Rittenhouse / If the Δ makes an equivocal statement waiving right to counsel and permission to search barracks then the police may question w/o counsel and search the areas indicated on the waiver. The Δ must be unequivocal in his invocation of 5th and 6th Amend. rights, otherwise a waiver is presumed
Personal Jurisdiction for a Court Martial
· Art. 211-regular component, lawfully called or ordered into duty/training in the armed forces
o Regular, reserve or guard on duty/training
o Cadets
o Reserve on inactive duty training
o National guard only when in federal service
o Retired if receiving retired pay
o Reserve retired while hospitalized in a military hospital
o Fleet reserved/fleet marine reserve
o Persons already in custody
o NOAA, Public Health Service, and others while serving with the armed forces
o POWs in custody
o In declared war-persons serving with the armed services
o Persons employed by and serving with armed forces OCONUS (depending on SOFA constraints)
o Persons within an area leased by or otherwise reserved or acquired for the US’ use which is under the control of the SECDEF and outside the US
o Those under Art.4 of the Geneva conventions and violate the laws of war
Reid v. Covert / Civilian wife murdered AF husband. Tried by CM of officers, overturned because a civilian should be tried by a federal civilian court. Art I, § 8, cl. 14 stated “all land and naval forces.” No mention of civilians that are associated w/militarySolorio v. US / Coastguard who sexually assaulted two girls, daughters of fellow coastguard sailor. Was in NY, first crimes, then AK, next crimes. CM convened in AK for both sets of crimes. Though committed off-base, there is a nexus btw good order, discipline, and moral and sexual assault crimes against a fellow Coastguard sailor’s dependants. Added the connection to military service/order/discipline.
US v. Scheider / Attempted murder of wife while in a hotel with the toilet lid and then throwing her over the balcony. Double jeopardy doesn’t apply if the Δ is tried in both a federal/military court and a state court (two differ sovereigns).
Unlawful Command Influence
· Role of the Commander-may not coerce a court-martial decision in anyway
o No community punishment
o Cannot force a commander at a lower level to convene a CM or do Art 15 punishment
· UCI must be proven, by the Δ, by clear and convincing evidence
· Anyone in the chain of a CM can be guilty of UCI (Commander, SJA, Convening Authority)
o Guilty of Art 37-prohibiting unlawful command influence, and punished under Art 98 for unlawful command influence
US v. Bigase / CC circulated the confessions of the 7 black Marines that were convicted of beating white Marines around the company. Discussed the confessions at company meetings with the Δ’s possible character witnesses. Judge determined no UCI but the situation was improper. Remedial measures: remove persons from direct supervision; prevent unsubstantiated repercussions on the Δ’s character witnesses. Extensive voire dire of all panel members for biasUS v. Baldwin / Larceny, conduct unbecoming, service discrediting conduct (Art. 134). Military officers went to a professional development meeting discussing appropriate punishments for officers via court martial-held to higher standard, made example of . . . . Appellate court can remand for a Dubay hearing on what exactly and who went to the meeting to find out if there was UCI, because more than speculation is needed.
Relief for Unlawful Command Influence
Trial Court / Dismiss w/ or w/o leave to re-file; can give clemency through the convening authority
Appellate Court / Dubay post-trial hearing regarding the influence and its effects; dismiss the sentence and order a rehearing. Dismiss the findings and sentence and move to another convening authority. Entirely dismiss the case.
Pretrial Issues
· Self-Incrimination and Art. 31(b) Rights
o No coercion by rank or position when in an official law enforcement investigation or disciplinary inquiry
o Even with 5th Amend. warnings (Miranda), the confession still must be made under the totality of the circumstances voluntariness test
o Voluntariness test includes no physical violence, deprivation of food and water (watch for excessive questioning times), deception by the questioner, promises of immunity/treatment can lead to de facto immunity
US v. Duga / Larceny by SPCM. Friend of Δ was questioned and told “if there is anything you can give us to help the investigation.” Friend then talking to the Δ and eliciting information from him, without Art. 31(b) warnings. Δ stated he needed to hide his van, and then told more about the criminal activity. Using Rhode Island v. Innis standard the questions by the friend were not in a way to make the conversation feel compulsory.Interrogation/Questioning requiring Art. 31(b) warnings:
1) Person, subject to the UCMJ, acting in an official capacity or by personal motivation to assist the police after direction/motivation (agent test)
2) Questioned person would perceive that this was more than a casual conversation; can consider rank differences, position of the questioner over the Δ.
US v. Loukas / GCM on cocaine possession and inability to perform duties. Questioned first by Crew Chief, regarding his erratic behavior on the plane from Panama City, Panama. Then questioned by the pilot, a Captain. The first set of questioning by the Crew Chief was acceptable under a public safety exception. The inquiry was done to ensure the Δ’s safety (what health issues he was having) and the rest of the crew’s safety at 30K feet. Captain’s questioning, though, was inadmissible because it was done without Art. 31(b) warnings and it was more of a superior questioning a subordinate for evidence since the public safety was already assured.
Apprehension and Pretrial Custody
· Those with authority, officer, warrant officer, petty officer, noncommissioned officer, military police, other types of guards, may apprehend a person into custody
· Must have probable cause to apprehend
o Reasonable belief that a crime has been committed and that the arrestee was the one who committed it.
· Pretrial restraint may only be imposed if:
o Court martial offense
o Required by circumstances: possible flight, investigation/trial/prehearing won’t show/serious criminal conduct which would endanger the public
o Arrest with restraints (confinement to barracks/check in with CQ daily) or full confinement in jail
· Pretrial custody/punishment will be credited in the sentencing via Art. 13
US v. Gilchrist / GCM and pled failure to go, disrespect to a NCO, failure to obey, marijuana/xanax/cocaine possession, and larceny. Chained to bed in the brigade’s command building. There was no pretrial detention cell available. The last person in this holding room escaped via the window, so the Δ was chained by arms and feet. Except for the three hours of PT, there were soldiers there to make sure he could go to the bathroom, etc. Art 13 prohibits: 1) purposefully imposing punishment or penalty on an accused before guilty has been found; 2) arrest or pretrial confinement that is more rigorous than circumstances require (totality of the individual’s circumstances)US v. Cruz (Peyote platoon) / GCM of large scale marijuana abuse in the barracks. Nearly ¼ of the brigade was failed drug testing. While at a brigade formation, those who were guilty had their patches publically removed, assembled in a separate platoon, questioned by investigators, and then marched to the cadence “Peyote, peyote, peyote.” Found to be punishment prior to guilt being found and this had to count towards their sentence.
· Comparing and Contrasting Searches and Inspections